Members of the LEE group including NJPSA issued a letter to Acting Commissioner Christopher Cerf July 11 urging the Department of Education to hold off on approval of two virtual charter schools in light of potential legal impediments in the Commissioner’s authority to approve the charters.
NJPSA raised similar concerns in its testimony before the State Board in June on proposed changes to current charter regulations which seek to among other changes permit the Commissioner authority to establish these virtual schools (Charter Regulations Focus of June State Board Meeting June 7 2012).
The Proposed Regs
The proposed regulations would also afford the Commissioner broad discretion to restructure struggling charter schools and eliminate current regulation associated with streamlined tenure procedures in charter schools. Under the proposal the process of reviewing charters would additionally change with the proposed regulations providing more tools for the state to intervene. Included in the draft regulations are different probation options and a new option of so-called “restructured renewal” for a school that is low- performing but still worthy of staying alive.
The proposal also calls for allowing virtual charter schools as well as allowing “high quality” charters to establish satellite campuses. In addition regulation would be amended to allow charters to exist in non-contiguous areas under the proposal. That would “enable innovative programs that focus on online instruction to locate in New Jersey” according to the proposal.
The issues raised by NJPSA and others are both legal and practical with opponents arguing that the Department lacked the legal authority to effectuate some of the proposals outlined in the proposed regulations. Opponents have also expressed concern with the financial implications on traditional districts should virtual schools or even rapid unfettered expansion of charter schools be allowed under the revised code.
Among the signatories to the letter were the state’s lead education organizations including NJEA NJASA NJASBO and NJSBA. The letter implored the Commissioner to not approve final charters for two all-online schools until a number of legal and policy issues could be resolved. Also signing were the state NAACP and the Latino Institute.
The legal arguments raised focused on the state's 15-year-old charter school law and that statute’s lack of authority conferral to the Commissioner to authorize these cyber-schools.
“We have significant concerns that the Department of Education lacks legislative authority to authorize virtual or online charter schools under the Charter School Program Act of 1995” the letter stated. “There is no mention of virtual charter schools in the Act or its legislative history which makes it clear that this new form of charter school was never contemplated and has never been authorized by the Legislature” it read.
The letter also addressed public policy questions that the authors believe must be addressed before such schools could be authorized; including how the schools are to be funded and even how attendance would be monitored.
Legislature Steps In
Bolstering the legal uncertainty of the schools is a recently introduced legislation that would affirmatively put a halt to any virtual charters for a 12 month period to allow for a review of the law. The Assembly version of the legislation A-3105 (Diegnan) was heard in the Assembly Education Committee in the waning days of June. A similar bill S-2071 is sponsored by the Majority Leader – Senator Loretta Weinberg (D-Bergen) in the Senate. Weinberg has also introduced a Senate Resolution SCR-122 indicating that the proposed regulations are inconsistent with legislative intent.
NJPSA is in support of legislation as well as the the resolution.
The State Board of Education is expected to continue its review of the proposed regulations at its August meeting. According to one board member’s statement the Department received over 2000 comments in response to the proposed changes which the Department is currently reviewing and responding to. How recent legislative organizational and public action affects the Department’s response only time will tell.