The role of the judiciary in charter schools' policies.

• Author: Gallen, Kate
• Position: COMMENT

1. INTRODUCTION

   For some education leaders, the results caused them to remember Sputnik. (1) For United States Secretary of Education Arne Duncan, they were a "wake-up call." (2) The Program for International Student Assessment (PISA) uses a standardized test to compare students' academic aptitude from sixty-five different countries. It is, in many ways, a measuring stick for a country's education program. (3) When PISA released the results of its most recent test in late 2010, the numbers indicated that the United States was behind many other countries in educational outcomes. Its test scores were merely average in reading and science, and well below average in mathematics. (4) By contrast, students in Shanghai not only had the highest scores of any country, but they scored as many as 104 points above average in mathematics, 74 points above average in science, and 63 points above average in reading. (5) In contrast, the United States only placed seventeenth in reading, twenty-third in science, and thirty-first in mathematics. (6) While the United States' results were consistent with past performance on international tests, (7) many were surprised to see how far Shanghai students had surpassed American students.

   In addition to lagging behind in the international education arena, disparities within the United State contribute to the well-documented racial and financial achievement gap. Minority students tend not to perform as well as white students on standardized achievement tests. (8) Although there is evidence that this gap is narrowing, (9) it still poses a significant barrier to many minority students. Moreover, there is evidence that the achievement gap is widening between affluent and low-income students. (10) As the financial gap between the wealthiest ten percent of Americans and the poorest ten percent has increased, the achievement gap between the two groups has grown by thirty to forty percent. (11)

   As a result of the startling statistics concerning America's academic achievement both domestically and internationally, various education reform movements have taken root. Of these, the charter schools movement has gained favor because it offers "two distinct promises: to serve as an escape hatch for children in failing schools, and to be incubators of innovation[.]" (12) Charter schools are ideal for education reform because they are autonomous public schools, meaning each school has the ability to develop new strategies to improve educational outcomes for students outside of the framework of a traditional school district. (13) In turn, other schools can replicate the most effective methods in their own schools. In this manner, charter schools ideally "deliver better results in return for greater freedom." (14)

   Studies thus far have shown that charter schools, overall, do not perform significantly better than traditional public schools, suggesting they may not be able to deliver on the promise of improved student achievement. (15) However, researchers are beginning to explore avenues for scaling the most effective charter school teaching strategies into failing public schools. (16) Moreover, new research shows that despite differences among state charter school laws, certain legislative policy choices create better student outcomes. (17) Missouri, for example, affirmed its hospitable policy environment in School District of Kansas City v. State. (18) Conversely, the Supreme Court of Georgia in Gwinnett County School District v. Cox (19) stifled student achievement by weakening its state's charter school laws. This Comment takes the position that all states can benefit from charter school policies that promote student achievement, and that the Supreme Court of Missouri can provide a model of the role the courts can play.

   Part II of this Comment will provide a detailed history about the development of charter schools nationally. Part III then answers the question of whether widespread support for charter schools is a wise policy choice. Part IV outlines how Missouri has created a strong charter culture, while Part V discusses how Georgia failed to do so, and the consequences of each of those decisions. The Comment finally concludes by arguing for the continued judicial support and more purposeful legislative support of charter schools.

2. DEVELOPMENT AND SUPPORT OF CHARTER SCHOOLS

   Currently, there are over 5,600 charter schools in forty-one states. (20) What began as a simple but novel idea in the early 1970s, has blossomed into a widely supported charter school movement. In order to fully understand how charter schools impact student achievement, it is first necessary to outline how charter schools came into being and why they have gained momentum in recent years. To do so, this Part will examine (1) the history of the charter school movement, (2) common characteristics and criticisms of charter schools, (3) how charter schools have become part of the federal education policy, and (4) judicial support of charter schools legislation.

   1. Evolution of Charter Schools

      Education reform litigation has come in three large waves: desegregation, financial equity, and school choice. (21) By the early 1960s, racial inequality became the target of wide protest, and by the 1970s, the Supreme Court of the United States ordered states to take affirmative steps to integrate public schools. (22) However, some education reformers became dissatisfied with the slow pace of integration. (23) They instead turned their attention to inequality in school funding as a way of improving education. (24) When this movement proved largely ineffective, (25) the school choice movement--the umbrella under which charter schools fall--was born from its ashes. (26)

      Many people credit Ray Budde with the invention of charter schools. (27) First using the term in the 1970s, his original idea included teachers working within the traditional public school structure. (28) Budde envisioned small groups of teachers contracting with their local school board to address specific obstacles in their schools. (29) For example, if a group of elementary school teachers thought it would be more beneficial to group students by ability level, as opposed to using grade level, they could seek a "charter" from their school district to do so within the school in which they worked. Over time, however, his idea morphed into a network of schools that, while publicly funded, operated outside traditional public school districts. (30)

      In 1983, a pivotal report published by the National Commission of Excellence in Education, A Nation At Risk, (31) declared that America had essentially become so lackadaisical about its own educational system that other countries were poised to surpass its "preeminence in commerce, industry, science, and technological innovation." (32) The report also stated that although the average citizen in 1983 was better educated than average citizens of previous generations, "the average graduate ... [was] not as well-educated as the average graduate of 25 or 35 years ago, when a much smaller proportion of [the] population completed high school and college." (33) While it is now well documented that the United States lags behind many countries academically, (34) at the time, the report was highly influential in starting education reform movements. (35)

      In 1991, Minnesota became the first state to enact charter school legislation. (36) In doing so, Minnesota outlined many of the goals of charter schools and education reform in general, including increasing student achievement, creating accountability for schools, and encouraging innovative teaching methods. (37) Many other states followed Minnesota's lead, and today forty-one states have some sort of charter legislation. (38)

   2. Common Characteristics and Criticisms of Charter Schools

      Because charter school statutes are the invention of state legislatures, their structures and legislative underpinnings vary across state lines. (39) However, all charter schools share certain characteristics. They are created when a local school board, university, or governmental body contracts with a charter school operator to open and run a school. (40) The school then receives a set amount of money from the state and, in some cases, local governments to cover the costs of educating students. (41) Charter schools, therefore, are often considered public schools. Like traditional public schools, charter schools do not charge tuition. (42) Unlike traditional public schools, however, they are often free from many state and local regulations. (43) Thus, charter school operators can hire uncertified teachers, choose their own curriculum, and offer longer school days than traditional public schools. (44)

      Because charter schools offer alternatives to failing traditional public schools, they are often centralized in urban areas. (45) While charters enroll students of all races, minority students tend to enroll in charter schools at higher rates than they enroll in traditional public schools. (46) Additionally, charter schools tend to enroll more "high poverty" students than traditional public schools. While only 19% of traditional public schools are considered high poverty, 30% of charter schools have such a designation. (47)

      Depending on the wording of the state statute, charter schools operate as either part of the local school district, or as their own school districts. (48) All charter schools are still accountable, however, to the sponsoring entity, many of which have broad authority to revoke or deny renewal of the charter if the school produces unsatisfactory results. (49) Because the charter functions as a contract between the school and the government, if a school fails to make progress, it has "breached" the contract, and may be shut down. (50) In this way, charter schools are more accountable to the public as it is easier to shut down underperforming schools without having to go through as much red...