There is a right way and many wrong ways to crack down on poorly performing charter schools. This week, Ohio's attorney general decided, unfortunately, that it's better to hold a few hundred children hostage in court than to let established law operate to cure what ails two Dayton-area charter schools (see here). When an attorney general steps outside established law, allowing the end to trump the process, one can only wonder what lies ahead for citizens of the state that elected him.

Ohio Attorney General Marc Dann has been so precipitous and his legal reasoning so odd that we wonder whether he is truly focused on the best interests of students in the Colin Powell Leadership Academy and the New Choices Community School. Or is he peering beyond to the 2008 elections? Politics is very nearly the only rationale the attorney general could have in launching his Montgomery County Common Pleas Court suit to shutter these schools-and it's no surprise that his move was instantly hailed by the Ohio Education Association, which released its press release in support of Dann's actions before his office had even announced the lawsuits. Conveniently, the OEA said it would drop its lawsuit against the state, the one alleging that officials have not properly been overseeing charter schools. (Most legal observers thought that suit had no legs anyway.)                                                                                     

If Dann were thinking of education, or for that matter of due process, it would make far more sense to let the current law and procedure play out as it relates to closing failed charter schools. Under current law, barring major changes in their performance, these schools (and others) would automatically close at the end of the 2008-2009 school year. For that they would have no one to blame but themselves.

Let's be clear. We at Fordham are no apologists for failed charter schools-or failed district schools. These schools are not serving the best interests of their students and should be closed. One problem is that sponsors have not done their jobs in closing poorly performing schools, and we understand how hard this is firsthand. The criteria set forth by Dann for closure are reasonable-they're virtually the same principles Fordham advocates-but Dann's action ignores established procedures for due process already in place. In 2006, in partnership with two national charter groups, Fordham released the report "Turning the Corner to Quality: Policy Guidelines for Strengthening Ohio's Charter Schools" (see here). Its first recommendation was: "Immediately initiate a ‘house-cleaning' process that identifies the poorest performing charter schools and requires all such schools to obtain reapproval or close." This recommendation helped stimulate late-2006 changes in state law that will automatically close schools for academic failure. But, the recommendation called for a process based on fair play, transparency, and opportunities for a school to defend-and improve-itself outside of the intimidating and expensive environment of a courtroom.

Good charter schools-Ohio still has far too few of these-provide real choice for inner-city children and their families who are otherwise trapped in under-performing district schools and cannot afford private alternatives. This is especially important in a city like Dayton where 80 percent of the city's children attend a school (district and charter) rated D or F in the state's rating system. The Ohio General Assembly allowed for the creation of charter schools to provide choices for these families. Yes, too many of the choices are as feeble as the district schools from which students fled, but these charters should be closed through an orderly process-as should feeble district schools, which deserve no free pass just because they're operated by traditional districts.

Now, at taxpayer expense, a judge will be asked to go well beyond the bounds of his/her professional competence and determine school effectiveness. Moreover, Dann's effort lacks legal precedent and has flimsy support under state law.

  • The Ohio Revised Code and Ohio Administrative Code already address underperforming charter schools as a result of legislation (H.B. 79) approved in late 2006. The law provides procedures to close schools that are in academic emergency for three consecutive years. Statute also allows the school sponsor and the Ohio Department of Education to take corrective action against persistently failing schools. In turn, a charter school's governing board receives notice, due process, and ultimately an administrative appeals process.
  • Dann's assault on the two schools cites the state's charitable trust laws, apparently because the schools are 501(c)3 organizations. He also alleges that state money to fund the schools has been misspent because the schools are under-performing. In no section of the complaint, however, does he allege a breach of fiduciary duty or mismanagement of public money. Here, he appears to be misreading the law. Historically, the state's charitable trust laws have ensured that money collected for a charitable purpose is in fact spent on charitable pursuits. They have not, typically, been used to dictate the "best use" of such funds or to appraise the effectiveness of that use. The upshot: it appears Dann is using the charitable trust law to usurp the due process already available to address unsatisfactory charter schools under Ohio law.
  • Finally, the court will have to address how much the students at the two schools actually may have improved and if the district options available to these students are in fact superior. In other words, while many charter pupils may be performing poorly on state achievement tests, they may also be vastly improved from where they were when they left public district schools to enter the charter schools. This change in academic performance over time is, as of 2006-07, now being tracked by the Ohio Department of Education.

Dann seems to assume that if the students in the troubled charters return to a district school they will meet state academic standards. Note, however, that over 183,000 public and charter school students in Cincinnati, Cleveland, Columbus, and Dayton are attending schools graded either D or F (officially, academic watch or academic emergency) (see here). Dann argues that it would be better to redirect the state money funding the two charter schools to public district schools. This raises the question of a double standard in public policy. Will Dann now invent legal logic to move against poorly performing public district schools? If he doesn't, is he being even handed, fair minded, and child focused?  

It is right to no longer tolerate school failure. In this struggle against failure Fordham agrees fully with Attorney General Dann, but battling this out in the courts over just charter schools is a woefully inadequate response to the scale of the crisis. Furthermore, this approach appears to be more of an attack on charter schools than a concerted effort to improve student achievement for Ohio's neediest children. Dann is in the right struggle but using the wrong tactics on the wrong battlefield.

Read more:

"Charter schools fire back at Dann," by Catherine Candisky and Bill Bush, Columbus Dispatch, September 14, 2007.

"Ohio attorney general sues to close 2 Dayton-area charter schools," by Reginald Fields, Cleveland Plain Dealer, September 13, 2007.

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