Proposed State Board of Education policy uses funding to circumvent Charter Review Board

Board voted 8-3 to approve the controversial new policy

N.C. State Board of Education - Chair Eric Davis, Vice Chair Alan Duncan, and Education Innovation and Charter Schools Committee Member John Blackburn.

RALEIGH — In an apparent end-run around the authority of the new Charter Schools Review Board, a new proposed policy by the State Board of Education would have the effect of tying up funding approvals for charter schools.

Earlier in this year’s state legislative session, House Bill 618 was passed which created a Charter Schools Review Board (CSRB). Made up of a 14-member board to replace the current Charter Schools Advisory Board and with the power to approve or deny charter applications, grant renewals and issue revocations, the bill was vetoed by Democratic Gov. Roy Cooper but after successful veto override votes, the bill became law.

The proposed policy CHTR-022 cites the new law as the State Board of Education (SBE) retaining its constitutional authority to “establish all rules for the operation and approval of charter schools,” and to “allocate funds to charter schools” in order to “ensure accountability from charter schools for school finances” and student achievement.

Per the most recent report to the General Assembly, as of Dec. 1, 2022, there were 206 public charter schools in North Carolina serving over 137,500 students, or just over 9% of the total public school population.

According to that report, from 1998 to 2022 only 53 charter schools voluntarily relinquished their charters, one was assumed by another non-profit board, 11 were not renewed, and 22 charters were revoked by the SBE.

At the onset of the monthly meeting of the SBE on Sept. 6, State Treasurer Dale Folwell voted to oppose adoption of the agenda containing the new proposed policy. The motion was voted down five to two and the policy stayed on the agenda.

During meeting discussion, several members pointed out the new charter policy was “vague” and therefore could be used to withhold funding to schools approved by the CSRB.

“Does this imply that we can withhold funding on charters approved by the review board?” Member Olivia Oxendine asked. She added the policy was “premature,” and said the SBE could easily wait 30 days in order to meet with the CSRB leadership to discuss it.

SBE board member John Blackburn who sits on the Education Innovation and Charter Schools Committee under which the policy was being introduced, thanked Oxendine for her comments.

Blackburn responded that the CRSB’s first meeting was upcoming and therefore the police “needed to come before us.”

“So, my response to that is this bill passed on June 28th and this board could have foreseen the fact that it [the governor’s veto] would be overridden by the legislature,” said N.C. State Superintendent Catherine Truitt. She added that despite that “ample time” to get the policy to her staff, neither her office nor the Office of Charter Schools even saw the policy until late in the late afternoon of the previous Thursday.

“I’m not sure how we would know if it would be overridden or not,” Blackburn responded despite supermajorities in both chambers of the legislature allowing for all 14 vetoes issued so far by the governor this session to be overridden.

Board member Lt. Gov. Mark Robinson also said his office did not receive the policy until “a few days” after Truitt’s office did.

“It’s ridiculous. This is a serious policy change. If you wanted to do it, it should have started the minute the bill was passed,” Robinson said. He also criticized the board for waiting until the last minute to unveil the policy as “unprofessional” and that it “smacks of dishonesty,” and of “political pandering.”

One day of discussion for a policy change… One day,” Robinson said. “One day. When else has that been done on something so serious?”

“I can assure you this will not go unnoticed,” said Robinson. “The parents of this state are demanding better. They demand better out of this board. And better of us. And, quite frankly, we should demand better of each other.”

Board Chair Eric Davis bypassed the actual date of the bill’s passage at the end of June and instead used the veto override date of Aug. 16 in responding to criticism of the short introduction timeframe of the policy. He, like Blackburn, also blamed the short lead time on the impending first meeting of the CSRB.

“But because the review board plans to start moving forward next week on applications, it is important for us to get this minimum set of policy, which, in short, says “review board, when you approve an application, a renewal, or something that requires funding, come talk to us about it.” It’s as simple as that,” said Davis. He later added, “I think we have to act now.”

“So, the board may have spent a couple of weeks doing this, but DPI staff did not,” Truitt said in response to Davis’ comments. She said once her staff did see the policy, one of the questions unanswered in the policy was “What are the criteria that the board could use to not provide funding?”

Truitt added that the board doesn’t hear about incidents of districts mismanaging their funds but the SBE hears about issues in charter fund use.

“I don’t see what a couple of bad actors have done should be a policy that jeopardizes essentially the ability of a charter school to open its doors to the families who have chosen to go there,” Truitt said, adding that because the policy as written is “so vague” it would allow the SBE to block funding to a charter and “not give a reason.”

“If the Charter Review board has deemed that a school is in compliance, then this board cannot withhold funds,” said Truitt referring to the new law. “Now, if you want to have a checklist in the policy that says if these criteria are met, then they shall receive funding, then that is between ya’ll and the legislature, but I fail to see how the discussions that we’ve had so far do anything to support children.”

Davis responded to Truitt by saying when her agency brings funding requests to the board, that is “when we exercise our authority, just as we would under this policy.”

“When staff informs us of financial mismanagement or questionable practices in LEAs (local education authorities), we act,” said Davis. “We’ve gone so far as to remove some superintendents in LEAs.”

North State Journal reached out to Davis to expand on his comments related to financial mismanagement by districts and removing superintendents but no response has yet been received.

“What judgment will we use in determining funding? The same judgment that we use in determining funding for any school,” said Davis. He also added they would make funding decisions “in accordance with the law.

Reactions from charter school groups in the state to the policy proposal were swift.

In a statement, the North Carolina Association of Public Charter Schools (NCAPCS) called the move “unnecessary” and a “power grab.”

“The intent of HB 618 as passed through veto override is to reduce bureaucratic redundancy for all State entities involved in public charter school oversight. CHTR-022 is an unnecessary proposal that repeats most of what is contained in HB 618, albeit with a vindictive tilt toward punitive – rather than collaborative – oversight,” the NCAPCS statement says. “The whole point of HB 618 was to consolidate effort, not duplicate it. This policy is an overt power grab and is not intended to embody the spirit of democratic cooperation inherent to the ratification of HB 618.”

N.C. Coalition for Charter Schools Executive Director Lindalyn Kakadelis issued a similar statement, criticizing the board for playing “bureaucratic power games.”

“North Carolina charter schools are enormously popular with families, as evidenced by the 77,000 names on charter school waitlists. The legislature streamlined the approval process for new public charter schools to meet this demand,” Kakadelis said. “The State Board of Education is wrong to play these bureaucratic power games when parents just want options in their public schooling.”

Kakadelis also issued a letter to the board outlining how the new policy runs afoul of state law.

“First, the State Board does not have authority to enact this policy on its own. The State Board has not submitted the policy to the Review Board for approval, as the law requires,” Kakadelis wrote. “It also has not followed the procedures necessary for rulemaking under the State’s Administrative Procedure Act.”

Kakadelis went on to cite the state’s Charter School Act, which says the State Board of Education “shall allocate” a per-pupil share of funding “to each charter school.”

“Notably, the policy also fails to provide any guidelines regarding the State Board’s new role as an appellate body for Review Board decisions which is the one function that Session Law 2023-110 requires the State Board to perform,” wrote Kakadelis.

Kakadelis’ letter also questioned the circumstances under which the policy was drafted and the speed with which the board was forcing a vote.

“This timeline is highly unusual for a policy which has such far-reaching implications. It also circumvents necessary discussion and debate-and with no discernible need to act quickly,” Kakadelis wrote in the letter. “In fact, there is no pressing reason to set such a policy now. New charter schools approved by the Review Board will not be eligible to receive funding until they open, which will be next year at the earliest.”

Former Democrat state legislator Marcus Brandon tweeted for the board to be stripped of its powers related to charter schools.

“The State Board of Education is out of control using their personal feelings to hurt charters and parents choices,” Brandon, who is now the Executive Director for the school choice group CarolinaCAN, wrote. “I call on the #ncga to remove all powers related to choice & charters from the SBOE to the newly created Charter Advisory board. When people abuse power – strip them of it.”

At the conclusion of its monthly meeting on Sept. 7, the Democrat-controlled board voted to approve the policy by a vote of 8-3. Oxendine, Folwell, and Robinson all voted no.

Prior to the vote, Truitt reiterated concerns shared by Oxendine that the new charter policy would be subject to certain rulemaking policies under the State Rules Review Commission as the policy would impact third parties.

Truitt also said the claim the policy had to be pushed through now was not necessary since new charters need to obtain a certificate of occupancy for their facility before funding is granted.

Under the statutes governing the SBE, the board has 13 members including 11 members appointed by the Governor that are supposed to be confirmed by the General Assembly. The other two members are the state treasurer and the lieutenant governor.

Only three of the 13 current board members are Republicans; Oxendine, Folwell, and Robinson.

Eight of the governor’s appointees each are from the state’s eight education regions and currently serve an eight-year term. The board also has three at-large appointees.

In 2015, former Republican Gov. Pat McCrory appointed Davis to fill the at-large vacancy created by Marce Savage who resigned both her SBE seat and her role on the Union County School board over allegations she had used taxpayer money to cover her personal expenses.

Davis, whose first appointment was set to end on March 31, 2021, was reappointed just weeks later by Cooper on April 15.

Due to being a replacement for Savage, there was no confirmation of Davis by the legislature in 2015.  Davis apparently faced no confirmation by the legislature in 2021 either, according to resolution records for the 2021-22 legislative session.

About A.P. Dillon 1070 Articles
A.P. Dillon is a North State Journal reporter located near Raleigh, North Carolina. Find her on Twitter: @APDillon_