Legal aspects of charter school oversight: evidence from California.

• Author: Mayo, Kelsey W.

Introduction I. Charter Oversight in California A. Charter School Authorizers B. Initial Authorization and Renewal C. Charter Closure D. A Sociolegal Approach II. Data and Methods III. Typology of Legal Aspect A. Legal Aspects of Charter Oversight 1. Compliance 2. Legitimating 3. Aspirational 4. Democratic Conclusion Introduction

The growth of charter schools as a prominent educational reform strategy nationwide and within the majority of states has turned the attention of scholars and policymakers to the issue of charter quality. (1) While the academic performance of charter schools is, in the aggregate, on par with that of traditional public schools, (2) this finding is complicated by the fundamental decentralization of the organizational environment of education and its oversight. The charter landscape boasts distinct charter authorizers across hundreds of state and local jurisdictions, a still-evolving federal policy; significant internal diversity, both in school organizational type and quality; and high levels of political advocacy and philanthropic activity. Non-renewal and revocation measures, common administrative actions to ensure baseline charter quality, are not uniformly applied across jurisdictions. (3) When these measures are employed, they take place within a complicated legal environment and densely populated social field. (4)

While scholars have examined the legal requirements of charter oversight policies and the regulatory relationships between charter schools and their authorizers, (5) they have glossed over the importance of these oversight fora, and have thus failed to consider the implications of a discretionary and ambiguous law on the development of sound and equitable charter policy within states and local districts. This Article emerges from a larger project examining the role of law in the processes of charter oversight in California, the state with the largest and most diverse population of charter schools in the nation. (6) While the project directly engages only one state's experience with charter schools, California's nearly twenty-five year history with the organizational form and well-developed charter organizational environment make it a consequential site of study, (7) particularly for states and policymakers interested in improving charter school performance and oversight structures.

To orient the reader, I review the charter oversight and accountability processes in California in Part I, and provide justification for a sociolegal approach to studying these actions. Next, in Part II, I treat the broader legal environment in question, focusing on the spaces of charter authorization and oversight as dynamic sites of law in action. Drawing on three sources of data--(1) the California Department of Education's database of traditional public and charter schools, (8) (2) interviews with charter operators, lawyers, and charter advocates, and (3) analysis of charter documents and local school board proceedings--I identify and examine four legal aspects that emerge from the structure of charter oversight and the participation of school operators, local authorizers, and charter school advocates. In Part III, the findings section, I trace these four aspects (compliance-related, legitimating, aspirational, and democratic legal strands) through the bureaucratic structures and processes of charter school oversight. Discussion thus moves beyond the "black box" of school board decision-making concerning charter school reforms, connecting charter oversight to themes in regulatory law and democratic participation in administrative rulemaking.

The Article concludes by considering implications of a multivalent and often ambiguous legal environment for effective regimes of charter oversight. While the research contributes to the practical development of sound and equitable charter authorization and oversight policies, it is also an endeavor of legal sociology-- disentangling the multiple threads of law in an increasingly complex educational field. (9)

1. Charter Oversight in California

   Charter schools are publicly funded, tuition-free schools that operate according to the provisions of a charter granted by a legally recognized authorizer. (10) Charter authorizers oversee charter schools within their jurisdiction--their powers include initial approval, renewal, and revocation, and provide funding streams and, often, facilities for approved charters. (11) Following the Charter Schools Act of 1992, (12) California became the second state, after Minnesota, to permit charters, and as of 2014, the charter school population numbered 1180 schools, the largest in the nation and nearly eleven percent of all public schools in the state. (13) Fifty-four of California's fifty-eight counties have charter options, and charters now serve more than 500,000 students, approximately seven percent of public school enrollment in the state. (14) Although introduction of the charter form remains a contentious political issue in many local districts and counties, as a matter of state policy California has embraced the aspirational statement of its legislature that charter schools are, and should remain, an integral component of the K-12 educational landscape. (15) It is now reasonable to assume that charter schools and their political advocates are permanent features of the state's educational system. Inquiry into charter quality and the legal context of oversight is thus a timely endeavor, and one that follows recent shifts toward market forms in the educational field. In order to understand the legal cast of charter school accountability, this section first outlines the structure of charter oversight in California.

   1. Charter School Authorizers

      The California Education Code grants three entities the power to authorize and oversee charter schools: boards of local school districts, county school boards, and the State Board of Education. (16) As of 2014, there were 332 distinct charter authorizers in operation; the majority (282) were local school districts. (17) Thirty-five county offices of education also authorized charters; only fifteen schools (or school networks) received authorization directly from the State Board. (18) The presumption of local control is also reflected in patterns of initial petitions: local school districts receive the vast majority of initial charter petitions, while schools applying to counties or the State Board for initial authorization must provide compelling evidence in the original petition as to why county or state oversight is more suitable than control by the local school district. (19) Common reasons for seeking county or statewide benefit status include the operator's intent to open multiple school sites within a jurisdiction, or to provide services to populations typically served by countywide programs, including foster youth and students with disabilities. (20)

   2. Initial Authorization and Renewal

      Applicant charters in California fall primarily into two categories: (1) new "start-up" charters, which include single-sited schools run both by a group of individuals (colloquially known as "mom and pop" charters) and those under the supervision of charter management organizations (CMOs); (21) and (2) traditional public schools that convert to charter status, or "conversion" charters. (22) For proposed start-up charter schools, the initial petition submitted to the authorizer must identify the proposed location of the school and include the signatures of fifty percent of the parents of the potential student body, or fifty percent of the likely faculty (these categories are routinely subject to uncertainty and speculative exaggeration). (23) For conversion of a traditional public school to charter status, fifty percent or more of a school's current teachers must endorse the petition. (24) Upon receiving the petition, the school district convenes a public hearing on the proposed charter within thirty days, and then either approves or denies the charter within sixty days. (25)

      In order to deny a charter petition in the first instance, the governing board of the school district must issue written findings detailing the reasons for the denial. (26) These findings at times challenge the validity of parent or faculty signatures, but are more likely to address the quality of the educational program, the financial or governance plan of the school, or the other material requirements of the charter petition. (27)

      The primacy of local authorization is problematic for those interested in national or even state-level rates of charter outcomes or applicant characteristics. The California Department of Education does not keep records of petitions denied by local school districts, and differences in local record-keeping make it difficult to calculate aggregate rates of denial in the first instance. The matter is further complicated by the fact that some districts collaborate with charters to remedy flaws in a denied petition, actively assisting charters on the path toward approval, while other districts do not. (28) Previous research estimates that ten percent of applicant charters are denied authorization by local school districts, (29) though in light of political pressure favoring charter applicants this figure is likely too low.

      If approved, charters are granted a maximum term of five years, after which they must renew their charter with the authorizer. (30) The renewal process is a more in-depth performance review than the required annual reports, and obliges charters to demonstrate compliance with the educational, financial, and operational criteria required for initial authorization. (31) Student academic performance (as measured by the state-issued academic performance index (API) scores over time and by sub-group) is cited in the Education Code as the "most important factor" in determining renewal. (32)

      The legal requirement to privilege student academic performance during...