When it Comes to the Charter Schools Program, Little Details Can Have Big Impact

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Lyndon B. Johnson building

Anyone who says the recently proposed Charter Schools Program (CSP) rules are just about scoring grant proposals and otherwise “ordinary” requirements (as Secretary Cardona and others claim) has not been a close observer of the CSP since its inception. The authors of the CSP recognized the important role of the program in state policy-setting and it is unique among other federal education programs in that it only provides short-term startup funds, as opposed to typical federal programs that allocate resources for ongoing programs and operations. They recognized the potential for charter school leaders to be left on the sidelines on major regulatory initiatives for federal education programs. That is why Sec. 4307 in the Elementary and Secondary Education Act requires consultation prior to issuing any rules impacting the CSP and charter schools.   

Sec. 4307: To the extent practicable, the Secretary shall ensure that administrators, teachers, and other individuals directly involved in the operation of charter schools are consulted in the development of any rules or regulations required to implement this subpart, as well as in the development of any rules or regulations relevant to charter schools that are required to implement part A of title I, the Individuals with Disabilities Education Act, or any other program administered by the Secretary that provides education funds to charter schools or regulates the activities of charter schools. 

Unfortunately, the Biden Administration did not consult with the charter school stakeholders referenced in the statute in the development of the rule. Had it complied with the statute, and granted the community an opportunity to provide on-the-ground context for how the proposed requirements would play out in practice, Secretary Cardona would have learned that much of what his agency was proposing goes well beyond “ordinary” requirements.  
Part of the role of the CSP is to incentivize good state policy—there is close alignment between the federal law priorities and key components of high-quality state charter school laws. For example, the 1998 Charter Schools Expansion Act incentivized states to increase flexibility and accountability for charter schools by prioritizing states that allowed charter schools to have autonomy over their finances and that had an appeals process for authorizing (if there were not multiple authorizers). Today nearly every state, especially those with a robust charter school sector, has an appeals process and provides charter schools with financial autonomy. The State Entities program, reauthorized by ESSA in 2016, includes four key priorities aimed at influencing state policy so that it meets key needs in the sector: (1) Non-district authorizers or an appeals process (2) Equitable financing for charter schools (3) Access to facilities and financial support (4) High-quality authorizing practices. 
In addition, even application requirements—even any that are optional—can have an impact. Strapped for time and resources, charter applicants, non-profits, and stretched state agencies loathe to invest time and thousands of dollars on an application process if they don’t see that it will be worth their time or think they will be competitive. 
Lastly, placing vague and undefined terms in the hands of peer reviewers, especially at the state level, can shut off funding pipelines. Nitpicky expectations and personal opinions not grounded in federally-reviewed rubrics could easily deem applicants un-fundable. Requiring states to hand over how community impact is determined to peer reviewers, empowered with vague terms and standards, would result in potentially excessively docked points and ultimately reduce the number of grantees funded in states. 
Federal rulemaking requires public input to ensure that rules reflect the best possible policy. In the case of federal programs impacting charter schools, more is required given their unique governance model. The Department did not bring the charter school community into the regulatory development process, ignoring the statutory requirement to do so and the fact that consulting with stakeholders could have resulted in better policy. So, Department officials should not be surprised that more than 10,000 charter school supporters, as well as Republican and Democratic governors and members of the U.S. Senate and House of Representatives, weighed in to express their concern.

Christy Wolfe is the vice president for policy and planning for the National Alliance for Public Charter Schools.