In an opinion by Judge Alan Wilner (who was sitting on the court by special appointment), the Court ruled that the funding choices made by the City board of education were inappropriate and wrong. The case starts in 2004 and 2005, two charter schools, City Neighbors and Patterson Park, sought a charter from the Balitmore City Schools and the school board essentially sat on their request, deliberatly choosing not to make a decision. Under teh Maryland Charter School law, local boards had to make a decision one way or the other withing 120 days. Applicants could choose to appeal to the State Board of Education (SBE) in the event of an adverse decision. Interpreting the lack of a decision as an adverse decision, the schools appealed. After the SBE told the local boards to make a decision in 30 days, the school board issued a conditional approval. One of the conditions was for teh school board and the charters to negotiate an agreement regarding funding. But, as Judge Wilner noted in his opinion in a forceful dig as legislative ineptitude, the law regarding funding was hopelessly vague.
Under Maryalnd education law, people and groups can apply to the SBE for a declaratory judgement on the meaning and interpretation of the state law, regualtions and policy relating to education. As such the charters applied to the SBE for a ruling on what "commensurate funding" meant. The SBE tentatively ruled that commensurate funding means the average per pupil expenditures for like students minus a 2% deduction for functions that can only really be performed by the county's central administrative office. The Baltimore City school board objected and began the appeals process. While the appeals were pending, the school board and the charters came to an temporary agreement that provided funding in cash for some aspect and the provision of services with the total "funding" being significantly less that similar per pupil funding. Eventually, the SBE handed down its declaratory ruling on the funing matter, largely leaving its temporary ruling intact and advised future charter applicants to follow, where possible, the SBE declaratory ruling.
The Baltimore school board filed judicial appeals, arguing among other things, that the SBE had not issued a declaratory ruling, but a regulation that had not followed proper regultory procedures, that the funding mechanism issued by the SBE was not supported by law and sought to have the SBE over turned. Lower courts found for the City school board and then later for the SBE and chaters before Court of Appeals took the case.
As noted before, the Court ruled against the school board. The SBE not only had the power and duty to issue declaratory rulings, but that such declaratory rulings are exempt from the normal regulatory process by specific exclusion in the Maryland Administrative Procedures Act. The substance of the ruling on commensurate funding found the SBE formula acceptable in large part due to the deference owed to the SBE's judgment and the legislative history of the Charter School Act. The Court did say that "funding" could include services, but that the charter school and not the school board makes the determination as to whether to accept payment in cash or payment in kind.
What is the effect of the ruling, beyond the immediate funding issue. First and foremost, the ruling clearly established the preeminence of teh State Board of Education in the educational policy arena. The Court, on a number of occaisions spoke of the deference the courts should afford to the SBE's rulings and rulemakings. Absent an illegal or plainly erroneous ruling by the SBE, the courts are to defer to the SBE's judgment.
While the SBE can be at best described as "charter neutral," the ruling makes it clear that for future charter applicants, at the very least they will get a relatively impartial hearing at the SBE. When contrasted with the often hostile greetings in the local school boards, the atmosphere is a welcome change.
On a more subtle level, the Court's ruling also gives warning to the local school boards--"get on board with the charter movement" or else. The tone of Judge Wilner's opinion implies that the Court is not particularly happy with the obstructionist nature of the local school boards, particuarly in Baltimore and Prince George's County, where the educational needs of students are most dire. While those two counties have the highest number of charters, the charters achieved such a status in the face of opposition if not outright hostility at the school board level.
Second, the funding issue holds a great deal of promise for future charters. The immediate effect of the ruling levels the negotiating playing field for the charters. Charters will no longer be forced to accept services as payment, although they can opt for that path. The longer term effect is that, at least to a certain extent, Maryland charter schools will be operating on something more than a mere shoestring budget.
While the ruling yesterday is clearly a victory for charter schools, the battle is far from over. Maryland chaters can continue to expect a legislative environment in the General Assembly hostile to charters.
The court's decision has already spurred political opposition and calls for legislative action to undo it.The biggest problem that charters face is attempting to instruct Assembly members that charter students do NOT get more money than traditional public schools students, in fact they receive less, at least 2 percent less. But the teacher's unions, whose opposition to charters is not only long standing but vocal (despite a legislative bone thrown the makes employees of chater schools eligible to be in collective bargaining units). The unions, who have the fortunate position to have a legislature that is more than 2/3 Democrats, have a largely receptive audience to the myth of funding.
"It was a bad decision financially," said Sen. Paul G. Pinsky, a Prince George's Democrat who has twice unsuccessfully introduced legislation to curb spending on charters. "I think it's going to result in children at charter schools receiving more than children at traditional public schools."
In Baltimore, charter advocates are awaiting the response of Andres Alonso, the new chief executive officer of the city schools. Through a spokeswoman, Alonso declined to comment on the ruling yesterday, saying he is studying it.
Sen. Pinsky, quoted above, and his allies, however, have few legislative outlets short of keeping the cap on charter schools low or legislatively crafting a funding mechanism that shortchanges the charters. But there is a constitutional bar sitting in the way of the latter path--equal protection. By definition, charters are public schools and the state cannot fund them in too disproportionate manner without risking having their actions trashed in court.
But the political ramifications of drastically limiting the number of charters is also dangerous. Charters are performing well in Baltimore and in nearby Washington, DC. The state's most successful public school systems are in counties that many in Maryland simply cannot afford to live in, the People's Republic of Montgomery County and Howard County. Thus, there will be increasing pressure to either fix the schools in poor performing districts, like Baltimore City, or allow more charters to open. Thus, the General Assembly is caught between a rock and a hard place with a great big hammer of a massive $1.5 billion budget deficit falling on their heads this year.
Charters won an important victory, but it is simply one battle in a long war.
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