Having It Both Ways: How Charter Schools Try to Obtain Funding of Public Schools and the Autonomy of Private Schools

Since 1992, forty-two states and the District of Columbia have enacted legislation for charter schools. 1 As of December 2011, there were 5,700 charter schools educating 1.9 million students. 2 Charter schools are characterized as public schools that receive autonomy from a variety of rules and regulations that traditional public schools must follow. 3 In exchange for this increased autonomy, charter schools are accountable to the requirements that are established in the charter. 4 Failure to satisfy those requirements could result in the closing of the school. 5

Charter schools and “traditional public schools” are similar in that they are directly subsidized by a combination of primarily state and local taxes based on their enrollments. 6 However, the authorization process for these two types of schools can be quite different. Local education agencies (LEAs), which are usually school districts that are governed by elected school boards, decide to open new traditional public schools. 7 While LEAs may open new charter schools in many states, some state statutes grant chartering authority to nonprofit private entities that are governed by boards of directors consisting of private citizens. 8 Traditional public schools and charter schools may also differ in terms of how they are governed. While LEAs generally govern traditional public schools, many states permit private boards of directors to operate charter schools. 9 Another key difference between traditional public schools and charter schools is that charter school governing boards might choose to contract a private entity, or educational management organization (EMO), to manage and operate the school. 10

This Article discusses how charter schools have used their hybrid characteristics to obtain the benefits of public funding while circumventing state and federal rights and protections for employees and students that apply to traditional public schools. The first Part explains how charter schools have emphasized their “public” characteristics to withstand state constitutional challenges that they are ineligible for public funding because they are private schools or fall outside of a system of public schools.

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