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The Massachusetts Board of Elementary and Secondary Education

Charter Schools: Policy and Procedural Issues under the 2010 Amendments to the Charter School Statute

Members of the Board of Elementary and Secondary Education
Mitchell D. Chester, Ed.D., Commissioner
October 14, 2010

On October 18, 2010, the Board of Elementary and Secondary Education ("Board") will hold a special meeting to discuss policy and procedural issues relating to its role as the authorizer of charter schools. This memorandum and the attachments provide background information for this discussion.

The Statutory Framework for Charter Schools

Charter schools were first introduced to Massachusetts as part of the 1993 education reform law. Major changes to the charter school statute were enacted last January as part of the 2010 education reform legislation ("an act relative to the achievement gap"). Attachment 1 is a copy of the charter school statute including the most recent amendments. Attachment 2 is a copy of the Board's charter school regulations, most recently amended last May to implement the statutory changes.

Charter schools are public schools that operate independently of traditional school districts. States with charter school programs employ one or more of a variety of charter authorizers, including local school districts, municipal governments, universities, non-profit organizations, or state education agencies. In Massachusetts, the Board is the sole charter authorizing body.

We have two types of charter schools in Massachusetts: Commonwealth schools and Horace Mann schools. Commonwealth schools are completely independent of local districts, can draw students from many districts, and are funded by tuition payments from the sending districts. The charter school statute provides for reimbursement to school districts of the tuition payments. 1

Horace Mann schools are also independent schools, but they have a closer relationship with the local district. The local school committee, and in some cases the local teachers' union, must approve their establishment; the district allocates equitable funding for the school's budget; and typically the district provides some central administrative services. There are currently 56 Commonwealth charter schools and 7 Horace Mann charter schools in operation, serving just under 30,000 students.

The most significant change in the January 2010 legislation was raising the nine percent net school spending cap that limited the number of students who could attend a Commonwealth charter school from any particular district. The higher cap will apply only to districts in the bottom ten percent of the state in academic performance, and when it is fully phased in after a seven-year transition period, it will effectively double the number of spaces available in those districts. Other significant changes include: requirements for recruitment and retention plans; requirements to backfill vacancies; limits on the accumulation of surplus assets; changes to the approval process for Horace Mann schools; and an increase in the amount of state reimbursement for tuition payments to Commonwealth schools.

The chart in attachment 3 compares the key characteristics of Commonwealth charter schools and Horace Mann charter schools with two other forms of autonomous school governance - pilot schools, which Boston and several other districts have used for a number of years, and innovation schools, which were established as a new option in last January's legislation.

The Board's Role as Charter Authorizer

As the charter authorizer, the Board is responsible for awarding charters for terms of 5 years; approving major amendments to charters, including changes in school size, grade levels, and location; and monitoring the performance of each school. Schools that perform well can have their charters renewed for subsequent five-year terms. When deficiencies are noted, the Board has a range of actions it can take, including imposing conditions on a charter, placing a school on probation, and non-renewal or revocation of a school's charter.

These decisions have significant impacts on the charter schools and the students and families they serve, and they can also have a significant financial impact on local districts. As a result, the Board's deliberations on these matters must be done with great diligence and with regard to due process requirements. It is a time-consuming process, and the significant increase in the number of schools expected over the next few years will increase the time demands on the Board.

We have already instituted some efficiencies in our process. For example, the Board voted in October 2008 to delegate to the Commissioner the authority to approve requests from charter schools to incur temporary debt with repayment terms that exceed the duration of the charter. The Board voted in September 2009 to delegate to the commissioner the authority to grant charter renewals that do not involve conditions or probation and to approve charter amendments that do not involve changes in grade span, maximum enrollment, or districts served, provided that the Commissioner notifies the Board in advance of all such actions and a member may ask to have the matter placed on a meeting agenda for discussion and action. I report to the Board on all actions that I have taken under these delegations of authority.

While these measures have been helpful, the Board may wish to discuss further steps that could help the Board to manage the increased volume of charter school business we are expecting. The strategic planning retreat that the Board is planning for November 12 might be an appropriate forum for that discussion.

Attachment 4 lays out the expected agenda items for Board action over the next several months.

The Charter School Office

The Charter School Office is the unit within the Department that provides staff support to the Commissioner and the Board with respect to charter authorizing actions. The increasing number of charter schools will require us to devote additional staff resources to this function in the years to come. Attachment 5 is a position paper from the Massachusetts Charter Public School Association commenting on this need.

I am already taking steps to replace staff who have recently left through retirement or resignation. Two new staff members have been recently hired, and we expect to hire at least two more in the coming weeks. One of these will be a new director for the office, filling the void left by the recent retirement of Mary Street, who ably led the program during the past six years.

I am also planning a consolidation of the Charter School Office with our Office of School Redesign, which manages, among other programs, the Innovation Schools initiative. In addition to creating some administrative efficiencies, this consolidation will provide a single point of contact within the Department for educators interested in exploring school redesign, alternative governance models, or both.

A major obstacle to the proposed expansion of charter schools is the lack of dedicated funding for program administration and oversight. Currently the office uses funds from the Department's main administrative account, our district accountability appropriation, and some federal grants. Given the growing size and visibility of this program, its impact on sending districts, and the need to ensure high quality in all of our authorizing decisions, I am proposing dedicated funding for this office as part of our FY12 budget request. We will discuss this in greater detail during the budget discussion scheduled for Tuesday's meeting.

Policy Issues Relating to New Applications

In this year's application cycle for new charters, 42 prospectuses were submitted in August 2010. Based on the review of these prospectuses by our review teams, including both in-house and outside experts, I invited 25 of the proposed schools to submit final applications. This is the largest group of applications we have had since the cap was last raised in 1997. I will make recommendations to you for the award of new charters from this group in February 2011.

Several new provisions in the charter school statute require some discussion in advance of our deliberations on specific applications:

  • Proven provider status - The new legislation limits the award of seats under the new, higher cap to "proven providers" who have demonstrated the ability to serve a student population similar to the population to be served by the proposed charter and run a successful school or program similar to the program being proposed. [M.G.L. c.71, s.89(i)(3).] How narrowly or broadly will we interpret "similar?" Does running a successful elementary school program in a suburban setting give an applicant proven provider status to run an inner city school? What about a successful inner city high school wanting to expand to the middle school grades? How similar do the curriculum and program need to be from one school to the other? The decision on proven provider status is made by the Commissioner [603 CMR 1.05(2)], but your thoughts on this issue will help guide my analysis.

  • Award of potential seats - As noted earlier, the increase in the charter school cap will be phased in over the next several years. Our regulations [603 CMR 1.05(5)] allow the Board to provisionally award seats that will not become available until some point in the future, and we are already seeing applicants looking to "lock in" those seats for future expansion. Such multi-year expansion plans may make educational and business sense. But if we allot all or most of the future seats in this year's application cycle, it will preclude applications for other entities in subsequent years.

  • Networks of schools - The increase in the charter school cap and the proven provider requirements are designed to encourage successful charter schools to apply for multiple charters and to expand their existing schools. While the advantages of this are obvious, should we be concerned about concentrating a large number of charters and seats in the hands of a limited number of operators? How do we strike a balance between awarding new seats to existing, successful operators and allowing entry into the market for new, unproven ideas? How do we enable strong, successful schools while avoiding creating networks and schools that may be too big to close if they fail?

  • Recruitment plans - The statute [M.G.L. c.71, s.89(e),(f), and (i)] requires applicants to submit a recruitment plan identifying how the school will target populations that have sometimes been underrepresented in charter schools, including English language learners and students with disabilities. The challenge here is that schools cannot be selective in their enrollment processes and admissions; if a school has more applicants than spaces, admission must be done by lottery. What types of recruitment activities might the Board consider responsive to this requirement and yet still be consistent with the open admissions and non-discrimination requirements?

Public Hearings

The new statute requires that a public hearing be held in each city or town where a charter school has been proposed, and it also requires the attendance of a Board member. As you know, the absence of Board members from the public hearing in December 2008 in Gloucester has been the subject of considerable controversy as well as litigation. The large number of applicants this year means that we will be holding hearings in eight cities: Boston, Chelsea, Lynn, New Bedford, Springfield, Salem, Lawrence, and Holyoke. The tentative schedule is shown in attachment 6. We will need to discuss the process for assigning members to each hearing. Although only one member is required to attend each hearing, I recommend that we have two members assigned as a contingency.

We should also consider whether the hearings should be conducted by one of the Board members in attendance, rather than by a Department staff member as has been the practice in past years. This would provide greater visibility for the Board's role in the process and help assure the speakers that their concerns are being heard.

Audio recordings of each public hearing will be made available to every Board member. We may also want to discuss the form and timing for Board members to report back to the full Board on the hearings that they attended.

Associate Commissioner Jeff Wulfson and Deputy General Counsel Kristin McIntosh will be available during the meeting to answer any questions that you might have.

1 The per pupil tuition amount includes both a facilities component and a per pupil foundation budget component. The Commonwealth reimburses every district, every year, for 100 percent of the facilities component of its charter school tuition cost. See G.L. c. 71, § 89(ff). The Commonwealth reimburses school districts for increases in the foundation budget component in a six-year cycle with 100 percent reimbursed in the first year of any increase and 25 percent reimbursed in the second through sixth years following any increase. The foundation budget component increases through school growth, through increases in the number of students enrolled from a particular school district, and through increases in the per pupil tuition rate for a charter school.


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Charter school statute (M.G.L. c.71, s.89)
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Charter school regulations (603 CMR 1)
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Comparison of Innovation Schools, Pilot Schools, Horace Mann Charter Schools and Commonwealth Charter Schools
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Schedule of Charter Authorizing Agenda Items
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Massachusetts Charter Public Schools Association (MCPSA) position paper on charter school office
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Draft Schedule of Public Hearings for New Charter Applications

Last Updated: October 18, 2010
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