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The question of whether or not charter schools are “real” public schools is among the newest and most important – legally speaking – challenge to the viability of those schools. Court cases and the arena of public opinion have argued charters are not “public”, and therefore, they are not entitled to the public funding that traditional district schools receive. The public-or-not question is complex, messy, and easy to politicize, but with so many students in all states at risk of not succeeding in traditional district schools it is a question worth addressing thoughtfully. Enter Bill Berthke, a civil rights attorney, labor arbitrator and education law attorney who has worked in Colorado since 1978. Mr. Berthke recently spoke at a charter school authorizing conference in Atlanta about the issues complicating the public-ness of charter schools. His remarks are published here with his permission.


When is Public School Not a Public School?”  One answer lies in a recent Washington Post headline:  “National Labor Relations Board decides charter schools are private corporations, not public schools.”  Like all good headlines this oversimplifies and yet cuts deep into real questions.

Charter advocates have a rejoinder I will try to summarize below.  But first let’s admit this headline is a self-inflicted wound.  We would not be discussing this issue if charters did not at times insist they were “private.”  I do not merely refer to charter schools that sought this NLRB classification, though that’s included.  Rather, we invite this view when we resist application of transparency laws; evade pension contributions; counsel out students; serve as the supine platform of a dubious EMO; hide a genuine problem at a school behind a rhetorical wall of “autonomy,” “the market” or “de-regulation”; and make invidious comparisons with those other public schools.

None of those examples is a categorical wrong.  Some transparency claims are oppressive.  Some pension costs are out of control.  Some students should be steered to a school equipped to serve them.  Some large charter organizations do good work.  Independence to pursue an approved mission is at the core of the charter movement.  School choice should be valued.  And there are schools (traditional and charter) that are academic sinkholes.  But when we stretch those points, we sow what we are just beginning to reap.  To state the risk I will borrow a concept from Abraham Lincoln.  Lincoln proposed that when the “public mind” settled a question, no law or court decision would stand before it.  And I believe the public mind will not reliably pay tax dollars for the benefit of “private corporations” that are not “public schools.”  The extent of vouchers versus the extent of charters — about an order of magnitude — is a good approximation of how far we may have to fall.

I promised to summarize the standard case for charters as public schools.  Here goes:  charters are open to all students (unless they are pushed out).  Charters are subject to public sector non-discrimination principles (with the same exception), Charters provide education meeting public standards (though some condemn the “common core”).  Charter academic performance is measured by standardized tests (unless parents opt out).  Charters are subject to public financial expectations (except when they don’t comply).  Charters are subject to closure for poor performance (except when they aren’t).  And, in most cases, the equity left in a closed charter school belongs to the public (if there is any).  Putting aside caveats, this rationale focuses on student academics and finances.

Some may think I have given this position short-shrift.  But let me turn to a different kind of evidence.  Years ago I had occasion to ask a sophisticated charter school board why charters existed.  The unanimously accepted suggestion was that charters existed to produce students who could pass the state standardized test.  Put aside, for the moment that the test has changed twice since and that attitudes toward testing have become, shall we say, more complex.  At this meeting, it took cross examination to get, with reluctance, to students who would succeed in college; students who could earn a living; and, at the very end, students who would behave decently toward others.

Now, let us return to the Post headline.  Its claim has nothing to do with students.  Instead, it focuses on charters being “private corporations.”  This is not just a fair summary of the NLRB’s decisions.  It is a reasonable summary of ongoing state constitutional litigation to disestablish charters in Washington and Mississippi.  It is also a powerful sound bite that is not answered by the standard rationale for the public charter schools.  You say you serve public school students?  So what, you’re a private corporation.  You say you meet public academic standards and expectations?  So what, you’re a private corporation. Notice that these two arguments talk right past each other.  And the talking point that punches above its weight belongs to the anti-charter side.

To engage the other side we must “think anew.”  The charter movement has maintained, throughout its short history, an admirable focus on students, teaching, and, to a less consistent extent, parents.  While important, this misses a major point.  It ignores the core of the American theory of public schooling.  It was through this theory that public education spread across the United States, and embedded itself in state constitutions largely in the 19th century.  To illustrate, I’m going to quote from a 19th century source — a report of the Colorado territorial superintendent of education issued in the early 1870s.  If you examined similar reports and debates around the country between about 1830 and 1900 or even later you would find similar sentiments prominent and widespread.  Here’s the quote:

No one familiar with the history of our Republic can doubt that the free school system is the safeguard of our liberties.… The common school is the child’s republic, all classes are here … thrown together, they see each other’s good and evil, and must learn to respect each other’s rights, to manage and conciliate amid this daily conflict; ….

In other words, the purpose of a public school is to cultivate citizens of a republic.  At that charter board meeting I mentioned above, not one of those smart 21st century American citizens even hinted at this.

To go one step further we should ask how Americans learn small-d democratic, small-r republican values — at times, we may we even wonder if they learn them.  It is not mostly through a civics class or through cultivating a “peer culture” or even just through schooling.  It is at least in part through children and adults seeing and participating in institutions running in a way that reflects democratic values.  This was Alexis de Tocqueville’s insight into the foundation of democracy in America.

Here’s a more recent restatement:

[I]t is the small associations and mediating bodies, where society is realized, that act as the seedbeds for the civic virtues.  For it is in them that we learn the habits necessary to sustain democratic political life.

Now, many in charter circles disdain calls for “political” accountability.  Part of the problem with public schools has been elected school boards, right?  Or maybe it’s elected big-city mayors?  I get confused.  But before we just set aside elections, we should pause.  If we are not responding to elections, in what sense are we organizationally part of a public and democratic system of schooling?  It need not be through direct election.  Federal judges are not elected.  The Federal Reserve is not elected.  The governing board of the Smithsonian is not elected.  Juries are not elected.  Independent, deliberative, and participatory bodies are part of a mature democracy.  But when legitimacy does not come through election, explanation is required.  A start may lie in a very old American distrust of simple majoritarianism.  In a famous passage, the leading theorist of our constitution, James Madison, put it this way:

[T]he smaller the number of individuals composing a majority, and the smaller the compass within which they are placed, the more easily will they concert and execute their plans of oppression.

This is a succinct critique of the inherent virtue of elected school boards (and even more so elected mayors).  And it is less than a ringing endorsement of often self-perpetuating charter school boards.  But a Madisonian response to having two different types of public institutions operating in the same field, each flawed, could be to put them in tension with each other.  In other words, the policies defining the relationship between representative institutions — our traditional public school system —and participatory institutions — charters — if well thought out, just might make both more legitimate to the public and as public bodies.

So where does this leave us?  I suggest four points.  The simplest is that it that we should not be too concerned with being “corporations.”  After all, cities are corporations, school districts are corporations, and, for that matter, Chief Justice John Marshall once called the United States “[t]his great corporation.”  In the public school context, “corporation” only becomes disparagement when conjoined with “private.”  Thus, the real response to this attack lies in unmistakably defining how our organizational existence is “public.”

In that regard, we need to remember that we proposed a triad for charter school accountability: academics, finance and governance.  But our attention to governance has been thin.  What makes charter governance a legitimate, public part of the republic remains largely unexplored.

Critically, we must conduct that exploration and make our governing bodies “public.”  As the example of juries suggests this does not imply they must be elected or directly appointed by public officials.  It does imply public standards, including conflict of interest rules, ethical principles, authentic transparency, standards for removal, and others that will be a fair subject for regulation, debate and litigation.  This is the zone in which we must justify our organizations with well-designed rules while staving off suffocating regulation — a balance we already seek in other domains.

Last, as public bodies our fate is at the mercy of Lincoln’s “public mind.”  It is all well and good to suggest that some institutions, including central banks and juries and charter schools, should not be subject to “mobocracy.”  But it is necessary that we acknowledge — most of all to ourselves — that our existence as a sector is not earned with test scores, or clean audits, or close attention to Roberts’ Rules of Order.  Our existence is earned, and must continuously be re-earned, by cultivating broad public trust, in part in our care for public school students; in part by good stewardship of tax dollars; but finally through governance that visibly serves democratic values — in part, that is, by exhibiting citizenship in governance and thus cultivating citizens, children and adults, who value that part of the life of our republic provided through their charter schools.

We have work to do.

Citizen Stewart