Cyber Charter Schools: an Analysis of North Carolina’s Current Charter School Legislation

• Publication year: 2004
• Citation: Vol. 6 No. 2004

Meghan Knight⁰

I. Introduction

In an era where businesses, industry, and postsecondary institutions recognize the value of and utilize online learning, online education for North Carolina's public schools may be inevitable.¹ Increasingly, virtual education is seen as "a model for the development of the 21st-century learning skills of working and collaborating with others at a distance."² If North Carolina's public schools are to educate students so that they will be competitive in a marketplace that values online learning and virtual interaction, the state will need to ensure that its schools at the very least have a virtual component.

Currently, there are ninety-seven charter schools in North Carolina.³ There are, however, no cyber charter schools (hereinafter "cyber-charters") in the state. In fact, North Carolina has rejected two applications for cyber-charters.⁴ Despite the rejections, the North Carolina State Board of Education ("SBE") has expressed interest in the continuing development of virtual learning in North Carolina.⁵ while the North Carolina General Assembly has enacted legislation addressing charter schools generally, it has not yet enacted legislation that directly addresses cyber-charters.

This comment examines the possibility and legality of cyber-charters in North Carolina under the state's current charter school legislation and proposes that North Carolina amend and/or supplement its charter school legislation prior to granting any cyber-charters. This comment: (1) provides a brief history of the development of charter school legislation in the United States and in North Carolina; (2) describes the subsequent national development of cyber-charters and illustrates some of the problems that have arisen when they are opened under "regular" charter school legislation; (3) offers a recent history of online learning developments and considerations in North Carolina; and (4) provides an introductory analysis of North Carolina's current charter school legislation as applied to cyber-charters, examining how the Charter Schools Act could be amended or supplemented in order to better address the unique nature of cyber-charters.

II. History of Charters and Cyber-charters

A. Development of Charter Schools

Charter schools are nonsectarian, publicly funded schools of choice that operate more independently than traditional public schools. Charter schools arose from a movement to reform public schools.⁶ The "charter school movement has roots in a number of other reform ideas, from alternative schools, to site-based management, magnet schools, public school choice, privatization, and community-parental empowerment."⁷ The movement was "[o]nce hailed as a kind of free-market solution offering parents an escape from moribund public schools."⁸ The first charter school legislation was adopted in 1991 in Minnesota, where that state's first charter school opened in 1992.⁹ As of January 2003, there were almost 2,700 charter schools in operation in the United States with more than 680,000 students.¹⁰ A recent article in The New York Times indicated the number of charter schools in the United States is now at 3,000.¹¹

There are conflicting reports, however, about the nature and extent of the success of charter schools. A recent publication from the American Federation of Teachers suggests charter schools are not performing as well as traditional schools on the National Assessment of Educational Progress ("NAEP") in math and reading.¹² The report stresses the significance of its findings in relation to the federal No Child Left Behind Act ("NCLB"). Signed into law in January 2002, one of the NCLB sanctions for a public school that fails to make "adequate yearly progress" ("AYP") is restructuring the school as a charter school.¹³ Because "chronically failing traditional schools" may be converted to charter schools, NCLB is expected to cause significant growth in the number of charter schools.¹⁴ The danger lies in the creation of additional charter schools by conversion; such schools may prepare students less well than traditional schools. Challenges to this report argue that the "structural inequities between [charter and traditional schools] leave charter schools at a permanent disadvantage. Given time and a level playing field . . . charter schools will prove to be an academic lifeline."¹⁵

Successes and failures aside, North Carolina has allowed charter schools since 1996. North Carolina's Charter Schools Act was ratified by the General Assembly on June 26, 1996,¹⁶ as part of "a statewide initiative for educational reform in North Carolina's public schools."¹⁷ Charter schools provide parents of North Carolina's children a choice in their children's education, paid for primarily by tax dollars.¹⁸ The Act allows for no more than 100 charter schools statewide, and no more than 5 charter schools per year to operate in any local school system.¹⁹ In May 2004, supporters of charter schools in North Carolina urged the General Assembly to raise the cap on the number of schools from 100 to 110.²⁰ The legislation passed the House but was sent to Committee in the Senate, where it has been reintroduced in the 2005-2006 session.²¹ Among other things, the Act sets out its purpose, explains the application process, sets some parameters for operation and instruction requirements, provides reasons and process for non-renewal, and addresses funding.²²

Following enactment of the Charter Schools Act, thirty-four charter schools opened for the 1997-1998 school year.²³ By the 2001-2002 school year, the state had received 271 charter applications, and there were ninety-nine approved charter schools with an estimated 16,000 enrolled students in the state.²⁴ Additionally, over the first six years, preliminary approval of a majority of application submissions shifted from local boards of education to the SBE.²⁵ As of 2002-2003, the number of charter schools remained at ninety-nine.²⁶ There are currently ninety-seven charter schools in the state.²⁷ These schools have generally been small, averaging 137 students in 2001.²⁸

B. Development of Cyber-charters

1. Growth of Cyber-charters in the United States

"with virtual schooling still an emerging trend in education, even those involved are split on whether cyberschools are an alternative for a few students or whether it's [sic] the future of all schooling."²⁹ As an offshoot of the charter school movement, cyber-charters (sometimes referred to as virtual charters) have opened across the United States. Between 1999 and 2003, approximately sixty cyber-charters serving over 16,000 students opened in fifteen states.³⁰ This accounted for about two percent of the nation's charter school student population.³¹ Like "traditional" charter schools, cyber-charters are independently governed public schools.³² Unlike traditional charter schools, cyber-charters operate outside the confines of "brick-and-mortar" institutions, instead providing the majority of instruction over the Internet³³ and through such mediums as software programs and distance learning.³⁴ Students who attend cyber-charters often "meet" with other students and teachers online and may gather in person only for particular activities.³⁵ Primarily, students do their work on a flexible schedule from home, and in contrast to traditional schools, students' homes are not necessarily located in a particular school district.³⁶

It is self-apparent that cyber-charters give rise to unique issues not present in traditional school or charter school settings.³⁷ Many cyber-charters opened under states' existing charter school legislation, often enacted before cyber-charters were even contemplated. According to one source, legislatures in states where cyber-charters are operating have begun "swift and strong action" to develop policies that regulate charter schools that are not classroom-based.³⁸ At least four states have enacted legislation that directly addresses online charter schools, and at least one state has prohibited the creation of cyber-charters.³⁹

In Arizona, an estimated 3,500 students will be enrolled in public cyber schools for the 2004-2005 school year.⁴⁰ Arizona's law does not place a limit on the number of students who may enroll in these public schools, and there are "no school district boundaries" for such schools.⁴¹ Since 1998, the number of cyber schools in Arizona has increased from four to fourteen; seven of the schools were operated by the governing boards of individual charter schools, and seven were operated by the boards of "traditional school districts."⁴² Cyber education in Arizona comes in a variety of forms that serve students in kindergarten through twelfth grade. Some students work entirely from home and communicate with teachers by phone or email. others take some of their classes online and some in a traditional setting. Still others are in a school building daily where they do all learning online but have face-to-face interaction with their teachers.⁴³

2. Cyber-charter Controversy

Like most departures from traditional education, cyber-charters have spawned controversy, resulting in specific cyber-charter legislation in some states. The controversy in Pennsylvania provides a good example, as illustrated by legislative history and litigation in that state. Originally, Pennsylvania's cyber-charters were opened under the state's existing charter school legislation. In June 2002, the state adopted legislation that specifically governs cyber-charters in the state.⁴⁴ Prior to this legislation, various groups filed lawsuits to challenge the legality of the state's cyber- charters.

A school district seeking to prevent operation of a cyber-charter filed one such suit in July 2001.⁴⁵ The Common Pleas Court of Butler County, Pennsylvania, granted an injunction against starting the school and ruled that cyber-charters were not contemplated by the legislature and thus not authorized by the existing legislation.⁴⁶ The court...