Charter Schools Levy Solution or Tail Wagging the Dog?

Prepared by Joshua Palken (3-28-2024)

Article 9 Section 1 of the Idaho Constitution recites: “The stability of a republican form of government depend(s) mainly upon the intelligence of the people.”

I accept that statement and this is the legal and moral basis for education being the largest single portion of our entire state budget. That is 2.78 BILLIONthis year just for K-12.

This does not include LEVIES.

Now we all know the public schools have failed to produce the level of “intelligence” our Constitution envisioned, and like all our institutions Idaho schools are rife with inefficiency, poor results, and yes, even corrupt self interests.

Charter schools are one option and on the surface this certainly seems like an improvement – but is it? To be objective the duties and responsibilities of each structure must be compared – otherwise it’s meaningless. First let me state that I an NOT an expert in the duties and responsibilities of EITHER system. As an attorney I seek the underlying Constitutional or legislative authority to answer such questions, and I have done a lot of digging so far. What did I find?

Bottom line it’s a horrible MESS (see all the gory details at the end of this memo). So, I have come to basic conclusions which I will share and attempt to explain.

1. A main argument for Charter schools is they hold no levy. This is by state law so that can change any time. We should focus on abolishing the levy now for all schools.
2. Charter schools are set up with a specific limited purpose, enrollment and scope – that is why they don’t need a levy.
3. Public schools are the social, cultural and educational center of every community in this State. The role they perform cannot be replaced or eliminated without a massive consensus to do so, which I believe will never come. As such pubic schools deserve and need our support.
4. Support means money but that is not the real issue. Why? Because our Idaho Constitution answers this for us and the Initiative will force the State to follow the Constitution. WE THE PEOPLE as individuals in a REPUBLIC have delegated responsibility AND authority to the STATE to address this – not taxpayers and patrons of SCHOOL DISTRICTS. This has to be unwound…
5. The real issue is our personal support and involvement in local schools – not a vote to pay an extra stipend. In a simple way if thinking lets go back to the PTA model (before PTA became an empty political vessel).
6. Take the burden of budgets OFF the back of the schools districts and patrons and teachers, so they can focus on curriculum and student advancement.

So as of today public schools have to deal with:

1. Delinquent and abusive students
2. Special needs students
3. Depressed ADHD and other mental health students
4. Students that don’t speak English
5. Drug and alcohol abuse
6. Poor nutrition
7. Physically or sexually abused children
8. Bullying at school
9. LBGT and trans issues
10. Gender dysphasia issues

Do you see education and curriculum on this list? Do the schools get enough money to handle all these issues? What about 4H and sports and choir and band etc etc. Do the majority of citizens want that to go away? I am pretty sure the answer is NO, but with the current system and the division and legal and political confusion it seems like we only have two choices: vote FOR the levy or vote NO.

Is that a coincidence? Or is it the BOX we cattle citizens have been “herded into”? The question answers itself. This is an UNCONSTITUTIONAL structure imposed by the State to take the pressure OFF of them and blame local citizens for division and partisanship on school funding.

So NOW lets take a look at a choice we are offered by the Legislature and what role it has and can play in this critical issue – that is CHARTER SCHOOLS. I say this because it has been presented to me as a BETTER alternative – or perhaps in addition to a citizen reform Initiative. If that is true then I want to know.

This question is especially timely given the just passed law on Charter Schools which is named the “Accelerating Public Charter Schools Act.” The official summary of the new law says it is intended to “…incorporate the majority of what we have learned in the past 26 years…”

In other words it has been promoted by its sponsors and the Governor as a vote of confidence in the Charter School movement. Is this true? Again the law is a “horrible mess” (see the gory details at the end of this memo)

It does not take a lawyer or a cynic to see that the NEW provisions are not intended to “Reward public charter schools that meet their accountability measures with enhanced autonomy and freedom from regulatory burden;” NO – these provisions are to address a number of specific problems the Charter schools have. And this is not surprising when “private enterprise” has a chance to get a piece of the 7 BILLION dollar pie…

The new law also beefed up another key enforcement section entitled “REVOCATION OF A CHARTER.” I’m not going to get into it – it’s an obvious red flag to me. So what is this about? It didn’t take me long to find out. I just “googled” the phrase “Arguments against charter schools” and bingo I found the reasons for these new provisions. I won’t recite them all – (at the end of this memo are some links to articles or you can dig on your own). But the conclusions are consistent:

States rarely conduct investigations to ensure that charter schools comply with their obligations, often resulting in the circumvention of proper procedure. Charter schools manipulate enrollment processes to recruit the smartest students and the kids easiest to teach. There are substantial enforcement problems with this and an entire range of other issues with Charter schools.

That is why this new bill focuses on “accountability and enforcement.” NOT because they need to “reward” the charter schools, but because the Charter Schools are not playing by the same rules, are not abiding by the rules the do have, and enforcement is difficult. I can say with confidence that the list of new state requirements and powers in the “performance” section cited above are clear red flags of such problems.

Is the current charter school population comparable to the general population? Or do they cherry pick as critics say? The law says charter schools must accept all comers but they cannot and do not. Why? Limited enrollment resulting in favoritism and cheating? Or a wide open random and fair lottery? You tell me – what could go wrong?

NONEofthishasaneffectorrelevancetotheLEVYwhichisabadlawandmustbe abolished by WE THE PEOPLE

That is not to say throw out the baby with the bathwater. I for one believe that Charter Schools play a positive role in educational choice and provide some much needed relief and support for the traditional public schools. What would be the best use of Charter schools?

The answer seems common sense once it’s stated, but as usual our government scorns the obvious… and that is: make the CHARTER SCHOOLS ONLY FOR KIDS THAT

DON’T FIT INTO PUBLIC SCHOOLS…

Kids don’t fit in “mainstream” school for many reasons:

• They could be too smart – or the exact opposite.
• They could be too aggressive – or the exact opposite.
• They could be too motivated – or the exact opposite.
• They could have over bearing ambitious parents – or the exact opposite.

You get the idea – and on top of that there are many with special needs of many kinds (physical, emotional, financial etc) which must be addressed with special training and facilities that now burden the public schools. Would it not be common sense to group these kids in each community in a specialized Charter school(s)? Again the question

answers itself. THAT should be what the new law did – not just trying to bolster enforcement which will never happen.

This would put the fat part of the bell curve right where is belongs – in the public schools. It would also put the kids on the skinny ends of the bell curve right where they belong- in schools properly equipped and designed to support them. Neither of these happen now and the result is chaos and division.

The direct result of this needed reform would be a renewal of public support and participation in the education system because for once the STATE would be supporting a sustainable, equitable and common sense structure “… to establish and maintain a general, uniform and thorough system of public, free common schools” as required by our Constitution.

ForThosethatWantDeeperDigsandProofsHereyougo–pleasetakethetimeto look at the new law and news info.specifics that led me to my conclusions

It’s a horrible mess: 

The IdahoConstitutionitself is the only document that any citizen can pick up and read and understand – because unlike the morass of laws and regulations and policies of federal state local and municipal bodies – it is simple direct and clear. In fact, I find that the deeper I dig the MORE ambiguous and uncertain our civil law codes are today and this applies with serious force to education law. I have also spoken to our local MVSD trustees, to the Superintendent, to as many citizens as I could in person, and attended meetings to hear from others – all to try to make sure I was getting as much information as possible.

WE THE PEOPLE need to step up and push this initiative through, freeing us from the burden the STATE is supposed to carry. Only then can we have UNIFIED local communities that all support the schools uniformly, fairly, and consistently STATE WIDE as the STATE is required to do! The levy makes schools a local civil war.

Again the law is a “horrible mess”

I devoted enough time to looking and digging to form a conclusion. Let’s start with the list of intent and purposes of the new law – but before I do I have a petty gripe that I hope the reader will appreciate – that is the how to even see new charter school law? OK I’m a retired lawyer (LOL) so I go to Idaho State official code site which is: https://legislature.idaho.gov/statutesrules/idstat/title33/t33ch52/sect33-5206/

I see the law there under TITLE 33 EDUCATION, CHAPTER 52 PUBLIC CHARTER SCHOOLS (already getting bleary) and I see the many pages of single space text and links and cites enough to make a tax accountant cry…then at the bottom is this:

“How current is this law?” so I click on it and I am informed that “Idaho Statutes and Constitutions are updated to the web July 1 following the legislative session.”

That means that not until July 1, the law which was ABOLISHED and REPLACED with a new law in March 2024, wont be posted for 4 months – OK lucky I found out about it on the Comm+ postings or I would never have know about it…

Anyway so now I search for the BILL then compare it to the old one and here is what I found…

The old law listed 7 reasons for the law which I consider meaningless platitudes. Go look, but I’ll give you number one: “(1) Improve student learning.” Do you want me to cut and paste 6 more? No thanks…. So what about the new law?

It has the EXACTsame 7 reasons, and then adds two new goals which are:

“(8) Reward public charter schools that meet their accountability measures with enhanced autonomy and freedom from regulatory burden; and (9) Foster and support charter schools through best practices, development, educational, and operational assistance.”

Well that sure sounds nice doesn’t it? And it seems consistent with the name of the new law to “AcceleratePublicCharterSchools.”Yes it does indeed – so what’s the problem? Well, the problem is that all the changes I was able to dig out of this hot mess in NO way gave the Charter Schools “enhanced autonomy” or reduced their “regulatory burden” as the law proclaims.

NO – in fact the actual substantive provisions do the EXACT OPPOSITE. And these changes in fact show that – as the Bill Official Summarystates, that what “we have learned in the past 26 years… and what was therefore “incorporated in this bill” is that Charter Schools have presented massive issues and problems.

Let me be specific because I didn’t get even through one section to see the Legislature is playing games as I suspected – see here:

The OLD LAW Section 33-5203 (a) expressly provided that: “No whole school district maybe converted to a charter district or any configuration that includes all schools as public charter schools.”OK what that means is that the Legislature prohibited any school district from going “charter.”

Why? Are they afraid it might catch on? Would it not be better to allow the basic “units’ of the state system – school districts themselves – to choose to convert to charter rather than piece meal?

Well certainly 24 years of POSITIVE experience and a desire to ACCELLERATE charter schools would change this as restriction as one of the many improvements to the law?

Here read the NEW LAW:

“33-5203. APPROVAL OF PUBLIC CHARTER SCHOOLS. (1) No whole school district maybe converted to a charter district or any configuration that includes all schools as public charter schools.”

Yeah you read right – it’s the SAME. What does that tell you?

Now let’s examine one of the biggest CHANGES in the new law. It is the

“PERFORMANCE” SECTION which again is identical until it then ADDS the following provisions:

“(6)Thecharterholdershallberesponsibleforpromptlynotifyingtheauthorizer of the following with appropriate documentation:

1. Ifthecharterholderbecomesawarethattheschoolisnotoperatingin substantial compliance with the terms and conditions of its performance

certificate;

1. Ifanyrevisionsoramendmentsaremadetothearticlesofincorporationor bylaws;
2. Iftheschool’saccreditingbodyfindsthattheschoolhasfailedtomeetor maintain full accreditation requirements;
3. If any complaints are filed against the school, including but not limited to lawsuitsandcomplaintsfiledwiththeIdahoprofessionalstandardscommission relating to school employees;
4. Iftherearechangestoanyschoolboardmembersortheircontact information; or
5. If there are any early warning signs of distress as outlined in the performance certificate, including any excessive reductions in enrollment of all students or at- riskstudents,excessivestaffturnover,orexcessivegovernanceboardturnover…”

These provisions are clearly designed to address enforcement problems.

AND FINALLY…

MOREcharterschoolissuesintheselinks…andtobefair,pleasebearinmindthatthere is a built in, organized and well established group that has a SERIOUS BIAS against Charter schools – and of course that is Public Schools – so as always, read study and then THINK for yourself…

https://yipinstitute.org/article/the-case-against-charter-schools

https://www.gse.harvard.edu/ideas/ed-magazine/17/05/battle-over-charter-schools

https://www.forbes.com/sites/petergreene/2022/11/10/four-ways-charter-schools- undermine-good-education-policy/?sh=3fdc14ac27ca

https://uplifteducation.org/why-are-charter-schools-so-controversial/ Originally posted on IdahoEdNews.org on January 11, 2024

Lawmakers gave a lengthy charter school overhaul bill the initial go-ahead Thursday —

even as they scrambled to figure out what’s in the legislation.

https://idahocapitalsun.com/2024/01/11/idaho-statehouse-roundup-1-11-24-complex- charter-bill-debuts-blaine-amendment-repeal-comes-back/