Since 1994, federal grants offered to state education agencies and other qualified applicants through the Charter Schools Program (CSP) have supported the planning, design, creation, and expansion of charter schools as flexible, autonomous alternatives to traditional public schools. Reflecting the success of the CSP, the popularity of charter schools, and their effectiveness in boosting education outcomes for disadvantaged students, Congress reauthorized the federal Charter School Program (“CSP”) in 2015 and maintained its $440 million funding in the Fiscal Year 2022 Omnibus Appropriations Bill. At present, charter school laws enacted by 44 states and the District of Columbia have permitted 7,700 schools to serve 3.4 million students and 206,000 teachers nationwide. 

On March 14, the Department of Education (ED) proposed priorities, requirements, definitions, and grant selection criteria under the CSP that critics say would slow the growth of charter school enrollment across the country. ED’s proposals would require applicants to the federal grant program to provide a “community impact analysis” demonstrating sufficient community demand for the proposed school, including over-enrollment at existing public schools. The proposals would also require that applicants explain how the school “would not increase racial or socio-economic segregation or isolation” in nearby public schools. If CSP applicants retain for-profit education management organizations (EMO) and other for-profit entities, they would have to provide a list of information about those contractual relationships.

ED would prioritize CSP applicants that persuade nearby traditional public schools to “collaborate,” jointly providing, among other options, “curricular and instructional resources or academic course offerings,” “professional development opportunities,” or “safe, supportive, and inclusive learning environments.” The proposals would require state entities that award subgrants to charters to re-orient their grant-awarding priorities to match ED’s new policy directives.

As the comment period has already come to a close, it is worth asking three big-picture questions about these proposals.

First, does ED’s proposed rulemaking run counter to the law implementing the CSP and exceed its statutory jurisdiction in violation of the Administrative Procedure Act? The text of the statute identifies the selection criteria ED “shall” consider when awarding charter school grants to state entities, yet ED would provide new criteria on top of what is mandated by statute. The statute requires states “to ensure that charter schools are included with the traditional public schools in decisionmaking about the public school system in the State,” yet ED would reverse this mandate, requiring charter schools to seek public school “collaboration” on their own programs. And ED proposes reporting requirements on subjects that the statute does not contemplate, such as charter schools’ retention of for-profit service providers.

Second, what are the implications of ED’s proposed rules for federalism? ED would leverage state entities receiving CSP grants to enforce ED’s policy goals through assessments of subgrantee compliance and require state education agencies and other state entities to re-orient their grant-awarding priorities to match ED’s new policy directives. Proponents of a federal system in which states hold the reins on education policy should consider whether these proposals would replace experimentation in our “laboratories of democracy” with an unproven, one-size-fits-all approach decided in Washington.

Third, how do the proposed rules affect the ability of charter schools to compete on a level playing field with public schools? The proposal would add consequential reporting and other burdens to charter schools, including requiring them to perform a community impact analysis. Believers in the power of competition in improving educational outcomes might ask whether requiring charter schools to “collaborate” with their public school competitors on their own curricula and other matters is akin, as one commentator has put it, to “letting General Motors veto where Honda can sell cars.”

As the Biden administration finalizes these regulations, their APA and federalism implications deserve close scrutiny, as do their potentially vast impacts on the innovation and competitiveness of America’s charter schools.

Paul Zimmerman is Policy Counsel for the Defense of Freedom Institute for Policy Studies (DFI), where he leads its Teacher Union Accountability Project and assists with its federal agency transparency and oversight efforts. Paul R. Moore is Senior Counsel for DFI, where he leads DFI’s federal agency oversight, transparency, and accountability work. The public comment DFI submitted to ED on its proposed charter school rules is available here


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