Public Schools for Rent?

Kevin Havelda

I’m sure Bill de Blasio, the newly elected Democratic mayor of New York City, has lots of friends. You don’t win the election of the most populous city in America without being a little poplar. I doubt very much, however, if any of these friends are comprised of any of the city’s charter school network. After his campaign, one in which he waged war on the city’s charter schools, he will probably not be receiving many Christmas cards from the thousands of charter school students, parents, and staff that he is trying to put out of a job.

One very interesting issue raised in this recent campaign, and one that Kentucky ought to consider,FN1 is whether or not these charter schools should be located in free public buildings as other traditional public schools (“TPS”) are. In his campaign, de Blasio said that he would stop offering the city’s 183 charter schools free rent, a policy that has helped turn New York into one of the most vibrant hubs for charter schools in the country.FN2 This announcement caused several thousands in the charter school community to walk across the Brooklyn Bridge to City Hall to protest against this promise this past October.

Charter schools, often managed by nonprofit groups, receive public funding but operate independently of the school system and have more freedom in deciding scheduling, staffing and curriculum. In the 1999-2000 school year, there were roughly 340,000 students enrolled in public charter schools.FN3 By the end of the 2010-11 school year, there were 1.8 million.FN4 Charter schools now comprise 5% of all public schools in the United States.FN5 Again, while this is not Kentucky’s problem yet, it probably will be some day soon. A look to our history helps shed some light on how this little rental plan would likely play out.

In perhaps the most famous case that defined education as a fundamental right, the Kentucky Supreme Court in Rose v. Council for Better Education, Inc.FN6 held that the Kentucky system of common public schooling (created by the General Assembly) was constitutionally deficient. It is unlikely that the state supreme court would distinguish between charter schools and TPS in their definition of “common schools.”  Our state constitution provides explicitly that the General Assembly of the State “shall, by appropriate legislation, provide for an efficient system of common schools throughout the State.”FN7 As Rose pointed out, one of the fundamental requirements of this system of public schools is that is must be free to its students. Students cannot be charged tuition or any other kind of fee to attend them. Charging a school rent would be the equivalent of charging its students tuition, since the money allocated for the school expenditure would have to increase dramatically in order to still provide all the services to its students that it provides. That is de Blasio’s plan: to treat some public schools are free, and others as those owing rent checks. Treating public schools differently is contrary to the holding in Rose.

Yet, this is precisely what de Blasio intends. Appearing to make good on his campaign promise, some $210 million that had previously been earmarked to develop charter schools has now been diverted into a pre-kindergarten program at the behest of the mayor. While the charter school community was outraged (and may go so far as to spend another day walking down another bridge to get his attention, the Manhattan, perhaps?), no one in the de Blasio camp could be reached for comment. Many parents are angry over what feels like the mayor playing political bingo with their children’s futures. It begs the question, what would happen in Kentucky?

Charter schools have already (surprisingly) become a very polarizing political issue in the Commonwealth. In a stunning display of absolutely no nuance, teachers’ unions are siding against charter schools, while the biggest proponents seem to be conservative, Tea Party groups favoring school choice.FN8 Yet, to avoid the tsunamis that accompany the whims of those in charge, perhaps the best view of charter schools the Commonwealth could adopt is the nuanced view. That charter schools, while categorically public, are fundamentally different, and should be treated as such. How they are financed will impact their success in this state. What lessons the General Assembly can glean from this recent political chess game in New York remains to be seen. I’d be careful, Assemblymen and women: the bridges in Frankfort aren’t as big as those in NYC, and it is doubtful they can support its 670,000 public school students. Planning ahead now would be the wisest course of action.

FN1. Kentucky is only one of the last eleven states in the nation that do not currently allow charter schools, though recent political debates over the issue indicate that charter chool legislation is in our near future. National Center for Education Statistics, Charter School Enrollment, (Jan. 28, 2014, 12:52 PM), http://nces.ed.gov/programs/coe/indicator_cgb.asp.

FN2. Javier C. Hernandéz, City’s Charter Schools Fear having de Blasio as a Landlord, NY Times Online, http://www.nytimes.com/2013/10/09/nyregion/charter-schools-fear-having-d… landlord.html?_r=0&adxnnl=1&pagewanted=2&adxnnlx=1391443593-IpgB9e9V/wfT1Q/B1L7qZw

FN3. National Center for Education Statistics, Charter School Enrollment, (Jan. 24, 2014, 8:22 AM), http://nces.ed.gov/programs/coe/indicator_cgb.asp.

FN4. Id.

FN5. Id.

FN6. Rose v. Council for Better Educ., Inc. 790 S.W.2d 186 (Ky. 1989).

FN7. KY Const § 183.

FN8. It’s worth noting that when I attended a debate over charter schools led by KEA spokespersons and a certain Republican Assemblyman advocating for charter schools, neither one had ever heard of the name KIPP, Uncommon Schools, Achievement First, or even Wendy Kopp (former CEO and founder of Teach For America).