District/School Administration Administration
The Massachusetts Board of Elementary and Secondary Education

Charter Schools - Policies, Procedures, and Regulations (603 CMR 1.00)

At the September 22, 2009 meeting of the Board of Elementary and Secondary Education, I am presenting proposed changes to Board procedures for certain charter school matters, as well as amendments to the charter school regulations (603 CMR 1.00) for the Board's initial review. This memorandum covers three topics:

• the recommendations of the chairs of the Joint Committee on Education following their review of the Gloucester Community Arts Charter School application process;
• proposed changes to the Board's process for deliberating on charter school decisions, as a follow-up to your discussion at the August retreat; and
• additional recommendations for amendments to regulations to improve the accountability system for charter schools.

Recommendations from the Joint Committee Chairs

On June 8, 2009, the Legislature's Joint Committee on Education held a public hearing in Gloucester to review the concerns raised by city officials, members of the Gloucester legislative delegation, and other members of the community with regard to our approval of the charter application from the Gloucester Community Arts Charter School (GCACS). Following that hearing, the two chairs of the committee, Senator Robert O'Leary and Representative Martha Walz, offered several observations and recommendations to the Board in a letter dated June 24, 2009, that I previously forward to you. That letter is enclosed as attachment 1.

1. Census data

   Under state law, if a charter school is proposed to be located in a community whose population is less than 30,000, it must be chartered as a regional school. The GCACS application proposed to serve only the city of Gloucester, and we determined, using the most recent population estimate from the U.S. Census Bureau, that the city was above the 30,000 threshold. Some community members questioned whether the Census data was the most accurate and suggested using other population data from the city clerk's office. After hearing testimony on this matter, the chairs agreed that the Census data was the most appropriate to use. They recommend that we amend our regulations to incorporate what is currently our practice, to avoid any misunderstanding in the future. I concur with this recommendation. (See proposed new section 1.04(4)(e).)

2. Board member attendance at public hearings

   The chairs correctly note that our current regulations are ambiguous as to whether a Board member must attend every hearing or whether it is sufficient for a member to be present at least at one meeting. It has been our practice to try to have a Board member at every hearing, but occasionally, as happened in Gloucester, schedule conflicts preclude a member from attending. In this case, we chose to proceed with the hearing with Associate Commissioner Jeff Wulfson representing the Commissioner and without a Board member present, as we had already rescheduled the hearing once, and another scheduling change at the last minute would have inconvenienced many of those in the community who planned to attend.

   It is clear from the reaction to this decision that the physical presence of a Board member at each hearing is important to many of those who take the time to testify. I concur with the chairs' recommendation that we should amend the regulations to clarify that a Board member needs to be in attendance at each hearing. (See section 1.04(3)(b).)

3. Location of public hearings

   In 2004, the Department adopted a policy to hold public hearings on charter school applications in or within a convenient distance of the community or communities in which a proposed charter school is to be located. The chairs recommend that the regulations be amended to require a hearing in each of the school districts from which a proposed school will draw students. This would be extremely difficult to implement, particularly in the case of charter schools that serve half a dozen or more communities. Further, based upon the Department's experience in conducting these hearings, such a change would not necessarily increase public access to the process because it would increase significantly the challenges of scheduling hearings on dates and times that are convenient to the community and for which a Board member is available to attend.

   I believe both the letter and spirit of our current policy have been observed faithfully since it was adopted, and I am not aware of any complaints, either for the Gloucester application or for any other application, that a public hearing was not conveniently located. Therefore, I recommend that we retain the current policy and codify it in regulation. (See section 1.04(3)(b).)

4. Waiver of regulations

   Because of the absence of a Board member at the Gloucester hearing, I asked the Board to waive the regulation retroactively in that particular instance. While the Board has the legal authority to waive procedural requirements when the waiver does not deny a party its due process or substantive rights, I also take to heart the chairs' observation that such a waiver can create perceptions of unfairness, particularly in the context of a controversial decision. The chairs urge us to be judicious in using waivers in the future, and I agree.

Decision-making criteria

Finally, the chairs ask us to provide some additional clarity on the criteria used in the evaluation of proposed charter schools, particularly with respect to support for the school and the fiscal impact on the sending districts.

One of the issues raised by critics of our Gloucester decision is that we did not ask to see, and did not try to validate, a petition expressing support for the school. We believe that petitions, pledges of planned enrollment, and similar documents are virtually impossible to validate, because the signers of such documents are under no legal obligation to send their children to the school once it opens. We have no way of knowing for sure how many children will actually enroll until the school opens its doors, usually two years after the initial application is submitted. We do look for sponsoring groups with roots in the community; we do ask them to tell us how they have gauged interest in the proposed school; and we give preference, as the law requires, to schools locating in districts with below average academic performance. Attachment 2 is an excerpt from the charter school application package and describes the information we request from applicants with regard to the need for the school. This document has been fine-tuned over the years and I believe it represents a reasonable approach to what is always a difficult analysis.

Experience also tells us that a quality charter school usually attracts a sufficient number of interested families to operate successfully, regardless of how many people signed petitions. For that reason, most of our evaluation process focuses on the qualifications of the founding group, their plans for the proposed school, and their understanding of the complexities of operating a public school.

Undoubtedly the major concern raised by critics of the Gloucester decision is the potential financial impact on the Gloucester Public Schools. Before I address this broader question, I want to comment specifically on the claim that we declined to accept written information from Senator Tarr when he appeared before the Board to testify. No one on my staff recalls this particular incident, and so I have to believe it was simply an unfortunate miscommunication at the time. We would never refuse to accept written materials from anyone, much less a distinguished state senator, on any matter coming before the Board.

We are very familiar with the intricacies of charter school financing. The current statutory formula ultimately shifts local school dollars from the local district to the charter school based on the number of students who choose to enroll there. Indeed, it was intended to do so and the statute provides transitional funding for school districts that is among the most generous in the nation. If long-term loss of funding were a sufficient reason to deny a charter school application, then we would not have any charter schools in the Commonwealth.

The Legislature, in enacting the charter school funding provisions, clearly understands that a balance is needed between offering new choices to parents and protecting districts from financial harm. As a result, the Massachusetts charter school law contains a provision limiting the amount any district must pay in charter tuition. There are those who believe the limit should be higher or that there should be no limit at all, and there are those who believe the limit is already too high. Making changes to that policy in statute properly belongs to the Legislature and the Governor. It is not the role of the Commissioner and the Board to substitute their judgment for the Legislature's on this issue and to determine that a lower limit should apply in some districts.

Changes to Board Procedures Relating to Charter School Agenda Items

At the Board's regular meeting in May 2009 and again at the strategic planning retreat in August 2009, the Board discussed its significant workload in carrying out its responsibilities as the only charter authorizing body in the Commonwealth. It was noted that as the number of charter schools increases, so does the Board's time commitment. Board members expressed a desire to balance the time spent on charter school matters with the Board's many other significant policy responsibilities.

Based on these discussions, I recommend that the Board delegate the following matters to the Commissioner, who would report to the Board on any actions taken:

• the authority to grant charter renewals that do not involve conditions or probation; and
• the authority to approve charter amendments that do not involve changes in grade span, maximum enrollment, or districts served.

Under this proposal, the Board would retain direct authority for:

• the award of new charters;
• charter renewals involving conditions or probation;
• decisions on the revocation or non-renewal of a charter; and
• all charter amendments involving changes in grade span, maximum enrollment, or districts served.

We will continue to publish an annual calendar showing the timeframe for making decisions on new charters and charter renewals. The calendar for 2009-2010 is enclosed as attachment 3. This calendar provides members of the public who wish to bring information on any of these matters to the Board's attention, notice and opportunity to do so. The Board may always reserve for itself the decision on any particular matter that would otherwise be delegated to the Commissioner.

Per the Board's discussion in August, I am also recommending that we adopt a procedural norm that charter school matters on which the Board takes action, including charter awards, renewals, and the types of amendments that remain under the Board's direct authority, generally would be presented for discussion and vote at a single meeting rather than being held over for a vote at a second meeting. These matters typically are more administrative than policy in nature. We would schedule these agenda items so that the Board has the option to hold over the matter for action at a subsequent meeting, if the Board wishes to do so. For award of new charters, we would continue past practice of providing information to the Board in January for a vote at the February meeting, as required by statute.

I believe these proposals would allow the Board to use its time more efficiently while still permitting thorough deliberations on the most critical charter decisions. The delegation proposal requires an affirmative vote of the Board; a motion to that effect is enclosed (attachment 4).

Other Proposed Amendments to the Charter School Regulations

We have also identified a number of less significant changes needed in our regulations to either improve the clarity or better reflect our current practices. Most of these can be described as housekeeping in nature. Here is a brief summary of these proposed changes:

Enclosed with this memorandum at attachment 5 is a red-lined version of the regulations that shows all of the proposed additions and changes. Also enclosed (attachment 6) is a motion to solicit public comment on the proposed amendments in accordance with the state's administrative procedures statute.

If you have any questions or require additional information, please contact Jeff Wulfson, associate commissioner, at 781-338-6500; Mary Street, director of charter schools, at 781-338-3200; or me.

Attachments:

	June 24, 2009 letter from Senator O'Leary and Representative Walz
	Excerpt from charter school application instructions regarding statement of need
	Schedule for major charter school actions, 2009-2010
	Motion for delegation of certain charter school actions to the Commissioner
	Proposed amendments to charter school regulations (red-lined version)
	Motion to solicit public comment on proposed amendments to charter school regulations