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Charter schools lose funding challenge on appeal

In a blow to charter school advocates in New York State and elsewhere, a state appellate court ruled against five Western New York families who brought a lawsuit to challenge the constitutionality of how the state funds charter schools.

New York follows funding formulas that provide less public money to charters than to traditional schools. The lawsuit claims this discrepancy -- estimated at somewhere between 60 and 80 cents on the dollar, depending on the schools -- violated mandates in the education section of New York’s Constitution. The Education Article states: "The legislature shall provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated."

The lawsuit contends that those "free common schools" include charters, and that the state should provide them with more money to build and maintain their facilities.

The court disagreed. In issuing their opinion last week, the judges of the Appellate Division, Fourth Department, unanimously reversed an order by a State Supreme Court justice to allow the suit to continue and stated, “The charter school funding scheme of the State of New York has not been shown in this case to be unconstitutional.”

The families who filed the lawsuit represent seven students in Buffalo and Rochester charter schools -- Unique Brown; Fina Sirmanuel and Mark Bell; Samantha Cruz; Giselle Aloma Jacobs and Tishawn Walker -- and they are supported in the suit by the nonprofit advocacy group Northeast Charter Schools Network.

In issuing its decision, the Appellate panel determined that, while Northeast Charter Schools could legally represent its member schools, neither the Network nor the schools could sue the state under the Education Article of the Constitution.

“The Education Article does not protect schools; it protects the students’ ... constitutional right to a ‘sound basic education,’” the judges wrote.

That left the case in the hands of the students’ families, who did have the right to bring the action, the court ruled.

The students argued in their filing that charter schools are on equal legal footing as traditional public schools, since they must also meet or exceed the performance standards mandated by the Board of Regents. Therefore, they contend, the schools should also be financial equals.

The judges saw it differently. They concluded that charter schools are a different legal creation from traditional public schools, and despite what is called their “noble purposes,” the charters' independence, their freedom to exclude some students and their exemption from “a multitude of rules and regulations” mean they cannot use the Education Article as a basis for their lawsuit.

The decision essentially says the complaint is comparing apples to oranges.

Publicly funded traditional schools are free and accept all children, and “if that system offers students a sound basic education, “then the constitutional mandate is satisfied,” the judges wrote.

Charter schools, on the other hand, are not mandated by the state Constitution but are a creation of the Legislature, the opinion continues. It outlines the funding process, under which charters receive money from local school districts and are required to achieve specific educational goals. The opinion also notes that underachieving charters may be closed, citing the case of the Pinnacle Charter School in Buffalo.

To challenge the constitutionality of their funding, the judges write, the charters would have to:

• Plead deficit input, such as inadequate teaching or facilities,

• Show deficient outputs, such as poor test results or graduation rates,

• And show “a causal connection between the deficient inputs and outputs.”

But it is impossible, the order states, to connect the lower amount of funding given to charter schools to the poor performance of students in traditional schools. In fact, the lawsuit argued the opposite, that despite lower funding, charter school students performed better.

“There is, in our view, no meaningful way to apply those requirements in the contest of a charter school funding challenge,” they write. “The thrust of the complaint is that (students) were forced into charter schools that suffer deficient inputs in order to avoid traditional schools that suffer deficient outputs.”

It says that the charter schools’ lack of funding cannot be the cause of poor performance in traditional public schools.

And, the ruling continues, “Even assuming that plaintiffs have pleaded a district-wide failure in the Buffalo and Rochester school districts, the provision of facilities funding to charter schools cannot be considered a proper remedy for such deficiency.

“To the contrary, to divert public education funds away from the traditional public schools and towards charter schools would benefit a select few at the expense of the ‘common schools.’”

The Appellate judges also rejected the argument that charter schools are being denied “equal protection of the law” through the disparity of funding.

They agree with the state's response that charter schools enjoy an autonomy missing from traditional schools, freeing them from many regulations, allowing them to hire nonunion staff and giving them access to other sources of funding.

Andrea Rogers, state director for Northeast Charter Schools Network, said the group was beyond disappointed in the ruling.

“We find this ruling outrageous,” she said in an email response to a request for comment. “It’s hard to understand how families that opt out of chronically failing districts for a better public school option somehow forfeit their right to equity. Blocking the courthouse door to overwhelmingly black and brown families in this way in 2016 defies reason.”

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