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Robert's Rules

State schools chief Robert Scott recently failed to get the Legislature to increase the cap on charter schools — then found a legal way to do it anyway, much to the dismay of state Democrats and teachers unions.

Texas Education Commissioner Robert Scott

Charter school cap? What cap?

Rebuffed by the Legislature last session in his attempt to raise the state cap on the number of charter schools (now set at 215), state Education Commissioner Robert Scott then took a closer reading of the law — and found a way to add scores of new charter schools, with or without legislative blessing.

His strategy is twofold. First, he plans to grant high-performing charters carte blanche to add schools under their existing agreements, without even asking his agency. Second, Scott will request that charter operators who currently hold multiple charters — one for each school — return them to the state in exchange for a single charter governing all their schools. That’s key: It will allow him to grant charters to new entrants into the market. He believes he can recapture 15 to 20 charters this way — enough to promote years of expansion.

Under the new rubric, current charter organizations with a record of high performance can operate with the autonomy of any other school district, Scott says.

“Frankly, that’s just like traditional public schools. Their boards don’t have to ask TEA to open a school,” he says.

One important caveat: The operators must meet the state’s recognized or exemplary academic rankings, as an average of all schools, and 75 percent of their schools must meet that bar individually.

Scott’s publicizing of the strategy sent some teacher unions and the Texas Democratic Party into a tizzy, and prompted dueling opinion pieces in the Tyler Morning Telegraph and Fort Worth Star-Telegram, where columnist Mike Norman admonished, “Hold on there, cowboy.”

The Democratic Party kicked the rhetoric up a notch. It blasted the move, along with two other state education initiatives, under a nasty missive headlined, "STATE AGENCY SCANDAL … REPUBLICANS FAIL TEXAS CHILDREN."

Scott “tried to overreach his authority and go around the state Legislature by removing caps on the number of charter schools," says Kristen Gray, communications director for the Texas Democratic Party.

"These caps were placed by the state legislature to ensure effective oversight … after several charters had failed to follow proper financial and accountability practices,” she alleges.

Opening charters easier than shutting them

Scott makes no argument that some charters have no business educating students, although that statement could apply as aptly to some regular public or private schools. Over the years, roughly a quarter of the charter schools that have opened in Texas have shut down, most voluntarily, some at the state’s insistence, Scott says.

Those that decide to fight a state move for closure present a huge problem, however. The TEA is currently involved in several lawsuits with charters, which can drag on even while the charter continues to operate. “It’s like any other state contract,” Scott said. “They have a property right attached, and when you try to take it away, some of them sue immediately.”

Charter critics have jumped on charter closures as evidence of failure. Charter advocates counter that bad schools should close — and part of the problem with traditional school systems is that their politics don’t allow for school closure, the ultimate accountability. Theory holds that charters should live and die in a Darwinian ecosystem, where the strong survive. 

Nationally, however, several studies have shown that charter authorizers seldom enforce that accountability. Most of the charters that have been shut down have gone out in a blaze of corruption or financial mismanagement. Charters that merely fail to educate students often are allowed to continue that failure, as charter boosters too often defend them, viewing an attack on any one charter as an attack on all charters.

As for expansion of high-quality charters, smart people may disagree. But the law is clear, Scott insists.

“Don’t tell me it’s illegal,” he says. “I’m a lawyer. I read the law.”

He appears to have a point: In passing the original charter school law in 1995, legislators may indeed have intended to limit the number of charter schools to 215, but that’s not what they did. They limited the number of charters — the actual contract between the school operators and the state. Later, as the charter movement grew, the standard practice in Texas and elsewhere became to allow stronger charter operators to add more schools to their repertoire.

Charter evolution

The practice of multiple campuses under one charter was “more of an evolution over time,” Scott says. “I don’t think anybody envisioned one charter operator with several campuses. But if you look at the plain language of the law, it doesn’t prohibit it.”

In fact, YES Prep, a system of high-performing charter schools in Houston, has a charter for a district instead of a campus and can already expand without permission from TEA. 

The Texas arm of the American Federation of Teachers, long a foe of charters (which almost always are not unionized), conceded Scott the point that current law allows multiple schools under one charter. It nonetheless challenges his plan to essentially approve expansion for certain charters in advance, sans TEA review, as well as an attorney general’s opinion Scott says affirms his strategy.

“Commissioner Scott now contends that an 'informal' advisory letter he has secured from the state attorney general backs the claim that Scott can waive the statutory cap at his own discretion,” according to a Texas AFT legislative analysis. “Texas AFT has obtained a copy of the letter, and it is a slender reed indeed for the commissioner to rely upon in attempting to depart from the plain language of state law.”

The law’s silence on the question of multiple schools under one charter allows vast wiggle room that Scott plans to exploit. Still, the backlash to his strategy has been overblown and misunderstands the general modus operandi of successful charter operators, such as KIPP, YES Prep and Uplift Education, which received the first waiver from Scott to expand at will.

“They are very careful in how they expand ... They don’t seem to be out there just going, ‘Woo-hoo!’ and creating a whole slew of campuses” in reaction to the new leniency, Scott says.

Measured growth

In the past, some existing charters were amended to allow the opening of one or several new campuses. In others, the operators were granted new charters, one per school. In Texas, the latter happened largely because of technical requirements for a federal program that once granted schools money for start-up costs and facilities, Scott says.

One operator has 14 to 15 individual charters, he says, which seems duplicative, if not downright silly. And yet that situation may now be the commissioner’s ace in the hole. Say, for instance, that he retrieves and reissues all those charters, and each operator ultimately expanded to five schools — that would bring 75 new charters to Texas, stemming from just one administrative exchange.

The state charter school association, with whom Scott works closely, said its member operators are thrilled, but they plan to take a measured approach to growth.

“Over time, yes, they’ll be starting a lot of new campuses, but there’s a lot of work involved — more than with traditional schools,” said David Dunn, the association’s director. “It’s going to be managed growth over time — it’s just that they’ll be free of having the state manage their growth for them.”

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