“Is that really rain?”

 Raleigh – April 17, 2011

Background:  On March 1, SB8 version 8 lifting the cap on charter schools was passed by the Senate and sent over to the House for their approval.  After six weeks of wrangling in the House, however, it morphed through amendments and substitutes  into a tangled mess that serves no one well. 

In this morphed form it passed the House and went back to the Senate for concurrence where it failed unanimously on Thursday, April 14. Now the bill is in conference to be reconciled. 

Problems with the House version:  On Friday morning after failing concurrence, the NC House released a note (See http://bit.ly/hqisWB  ) to “clarify some of the concerns” raised by long standing charter leaders and others (the entire Senate?) intimately involved in charter schools. (See http://www.nccivitas.org/2011/sb-8-time-to-walk-away/ and, less diplomatically, http://bakeramitchell.com/2011/04/08/clueless-caucus-crushes-charters/

The very fact of having to “clarify” the bill should raise some red flags, but let’s deal with the bill and these clarifications. 

The Cap 

Recall that the Republicans ran on the promise to “eliminate” the 100-school cap, and this was done in the Senate version. The clarification of the House version states, “That cap will be removed.”  But it goes on to admit that after removing that cap, the bill demands that a new cap of 50 new schools per year be imposed.  So let’s be honest; the bill does not eliminate the cap; it merely raises it each year. 

  • Please don’t tell us that the cap will be ”removed” by this bill when it is just being replaced by another form of cap.

 The note further states that, “We believe that 50 charters are more than would ever be approved in a year due to the application process.” 

First, why have an application process that is so cumbersome that it bottlenecks the approvals to less than 50 in a year. And if that is indeed the case, then it is unnecessary to impose any statutory limit – just let the bureaucracy strangle the applicants and create a line at the window. 

  • Again, please don’t tell us the cap will be “removed” when you then admit that the bureaucratic application process will serve as a new capping mechanism.

 Second, if there are more than 50 qualified applicants, the House bill does not give any criteria for ranking the top 50 to receive their charters.  The current statute clearly defines a ranking criteria that the applicants shall be graded as to the degree to which they will best further a district’s educational goals.  No such basis is available to sort out the winning 50 in the new uncapped capped version. The bill could at least suggest a lottery among the qualified applicants – a method which the Governor would undoubtedly approve. 

Finally, the note asserts that charter status awarded directly by the SBE to district schools in the “Restart” model “do not count against the yearly limit” [cap? – supposedly removed!].  I’m glad the House is sure of that, because in the original statute it was deemed necessary to insert a statement that granting charter status to these schools does not count against the cap.  These words are removed in the House’s bill.  Why?  If they were felt necessary before, what does it hurt to leave them in? 

  • Please don’t tell us that “Restarts” don’t count against the new “limit” when the original drafters clearly thought they did and included language to that effect which you removed.

 In summary, we have gone from eliminating the cap to an annual cap of less than 50 per year due to a clot in the application artery.  And in the event the clot dissolves, there are no clear criteria to prioritize the applications.  And the SBE could possibly use up all the charters for its low-performing district schools. (Wisconsin recently authorized 49 charters in Detroit alone.) 


 The Senate bill SB8 version 8 that went into the House clearly left more control of charters in the hands of an independent commission.  The commission was not required to seek approval on any measure from the SBE.  Only by a 2/3 vote could the SBE veto a commission action.  (Even this degree of control is still a major concern to most charter leaders: http://bakeramitchell.com/2011/04/07/170-elected-reps-bow-to-11-appointees/ )

 In contrast, the House bill surrenders completely and allows the commission only the power to “recommend” measures to the SBE. The SBE must approve, by a positive vote, anything and everything the commission wants to do. 

 But the clarification mystifies one by claiming, “Those who favor less interference with charters by the State Board of Education should welcome this new proposal.” Really? 

  • Please don’t tell us that your system of submitting “recommendations” requiring “approvals” constitutes “less interference” than unilateral actions that must be vetoed.

 To perhaps “clarify” this point, the clarification states that in the bill SBE approval cannot be unreasonably withheld nor can disapproval be arbitrary or capricious.  

Over the last decade, I have personally witnessed a number of decisions handed down by the SBE.  Despite being an unaccountable body of appointees who prohibit public comment at their meetings, I have never seen an arbitrary or capricious ruling – only decisions earmarked by abysmally terrible judgment and/or total ignorance of the facts. 

  • Please don’t tell us that your prohibitions of arbitrariness or capriciousness will result in “less interference” when bad judgment, ignorance, and anti-charter bias are the real concerns. 


Nowhere is the House bill more misguided, more confusing, and misinformed than with the accountability topic. Whomever is furnishing analysis or advice to the House leaders has done a terrible disservice to them and to the entire education community.  But this ‘accountability’ section wins the prize for confused, misinformed, ambiguous language. 

The current law, passed in 1996, requires that the academic goals be stated in the application and made a part of the charter contract.  Termination or non-renewal for academic reasons is based on the school’s failure to meet its promised goals as set forth in the application and mutually agreed upon between the parties. 

For example, if the charter founders of an inner-city school promised to raise local performance composites from 35% to 55% in 5 years and that goal was accomplished, then they would be renewed.  If it was to be a gifted and talented charter and the founders promised 90% performance and they only achieved 85%, then they might be subject to termination or nonrenewal.  Termination and nonrenewal depended upon non-fulfillment of the contract by the school. 

So under current law, at the awarding of the charter, the charter group and the state mutually agree upon the academic performance goals and if the charter fails to reach these mutually agreed-upon goals, then it is subject to termination. (§ 115C‑238.29G) 

In December of 2009, the SBE tried to supersede this law by adopting a policy whereby they could shut down any school that failed to make 60% composite performance on the state’s EOG tests for two out of any three years.  This policy has yet to be codified after nearly a year and a half.  See TCS-U-001 whose heading declares: THIS POLICY HAS BEEN ADOPTED BY THE NC STATE BOARD OF EDUCATION, BUT IS STILL PENDING CODIFICATION IN THE NC ADMINISTRATIVE CODE.  ALL CODIFIED RULES MAY BE ACCESSED BY GOING TO THE OAH WEBSITE. 

The clarification note characterizes the new House bill as being “more lenient” than this still-uncodified SBE policy. Because the bill implies that the three-year 60% threshold is an average?  But what about the current law? Is a one-size-fits-all 60% more lenient than the current law’s breach of contract? 

The note also attempts to “clarify” that the bill’s phrase “no growth in student performance” – an undefined phrase in state statistical jargon – equates to the well-defined phrase “not meeting or exceeding expected growth.” Many would argue that these two phrases have different meanings and would need to spend some money in obtaining a judicial opinion to sort out this issue. 

  • Please don’t tell us that a vague undefined growth criteria and a 60% threshold are “more lenient” and should usurp the criteria that were mutually agreed upon by the parties at contract signing as specified by current law.

 The clarification further claims that this “lenient” 60% is important: “This is important because many charters specifically target “at-risk” students.” Many charters do specifically target at-risk students. The note also properly praises Rep. Marcus Brandon as being the lone Democrat to support this bill. A check of DPI ABC results for Mr. Brandon’s district reveals that last year 19 of 46 elementary schools had performance composites of less than 60%. Yes, they can use help; but who would invest years of effort and untold funds only to face possible termination in spite of performing above the surrounding area schools. In attempting to defend the needs of his district, Mr. Brandon’s courage and good intentions are without question, but this bill will not achieve his desired result. The most prudent place to put a charter under the House bill is in a high income area that already has high academic achievement. 

  • Please don’t tell us how important this accountability section is for at-risk students when in fact it can force closure of schools that are outperforming the nearby traditional schools and when it chills opening new schools in high-risk areas. 


Hooray! The clarification gets it correct: historically, a student who transfers to a charter school leaves behind 20% to 30% of the funds that his traditional school received.  He brings only 70% to 80% of his original funding with him to his charter school. 

However, this bill gets it wrong and under legislation passed last year, this gap can widen because counties can remove even more funds from being shared with charters by hiding money from charters in new “Special Programs.”  The Senate bill fixed this loophole and placed charters on a more equal footing.  The House bill reopens the loophole and returns charter children to second-class status. 

The clarification puzzlingly attempts to comfort charter proponents by stating “the funding mechanism established for [charters] ensures that traditional public schools get more resources per student as and when more charters are established [and charter will, therefore, get less].” [emphasis added] 

  • Please don’t tell us that we should not have concerns when the House bill has the net effect of actually widening the funding gap between traditional and charter schools.

  Other “Advantages” 

The clarification asks us to consider a chief advantage to the House bill “is that for the first time counties would be allowed, at their option, to provide capital money for charters.”

 Please don’t tell us that counties now will be flooding charters with capital funds when these counties are fighting tooth and nail to resist even allocating the amounts that are statutorily required.

 Besides, this was one area that was left intact from the Senate version.

 In summary, please don’t whiz on my boots and tell me it’s raining.

 Regardless, the House is owed a debt of gratitude for their efforts on behalf of the education system of our state.  Majority Leader Stam has a number of other bills that will prove truly very beneficial.  But as mentioned earlier, they have been badly advised and been given some very defective data on this charter bill.

 Let’s hope the House seeks better counsel in the upcoming conference committee. But bring a towel to dry your boots – just in case it “rains.”

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