MAGNET AND CHARTER SCHOOLS:
WHAT YOUR SCHOOL DISTRICT MUST KNOW AND
HOW WE ALL CAN GET ALONG
CABE/CAPSS CONVENTION
NOVEMBER 17, 2012
Mark J. Sommaruga, Esq.
Sullivan, Schoen, Campane & Connon, LLC
646 Prospect Avenue
Hartford, CT 06105
Telephone: (860)-233-2141
Telefax: (860)-233-0516
Email: [email protected]
Mark J. Sommaruga, Esq. is a member/partner with the law firm of Sullivan,
Schoen, Campane & Connon, LLC in Hartford, Connecticut. Attorney Sommaruga,
who has been affiliated with the firm since 1991, has extensive experience in representing
the interests of Connecticut school boards, other public sector clients, and private sector
clients in labor, employment, education, civil rights, special education, municipal law,
construction law, tort matters, and assorted other litigation in the state and federal courts
on both the trial and appellate court levels, as well as before various state and federal
agencies. Attorney Sommaruga received his degree from Trinity College (B.A. with
Honors in Political Science and Russian/Soviet Studies; Phi Beta Kappa) and received his
legal education at the University of Connecticut School of Law (J.D. with High Honors).
Attorney Sommaruga is admitted to the Connecticut Bar, the U.S. District Court for the
District of Connecticut, the U. S. Court of Appeals for the Second Circuit, and the U. S.
Supreme Court. Attorney Sommaruga is a member of the Connecticut Bar Association
and its Education Law Committee and Labor and Employment Section (chairman of
Legislative Subcommittee, member of the Executive Committee) and also has served as
President of the Connecticut Council of School Attorneys (2001-2002). Attorney
Sommaruga is the author of The Connecticut Freedom of Information Act and Access to
Public Meetings and Records: A Primer for Municipal Agencies. Attorney Sommaruga has
been a participant in and presenter at workshops, seminars and conferences on education,
labor and employment law issues, including several presentations at the Connecticut
Association of Board of Education’s annual conventions.
Attorney Sommaruga has had the pleasure of advising school districts and their
administrators with regard to their roles and responsibilities vis-à-vis charter and magnet
schools. Attorney Sommaruga successfully represented the interests of several school
districts with regard to their obligation to pay pre-school magnet school tuition; this was a
case of state-wide importance. Attorney Sommaruga was also involved in a special
education case that presented a test as to the responsibilities of both a local school district
and a charter school with regard to the delivery of educational services. While primarily
representing school districts, Attorney Sommaruga has represented regional educational
service centers (“RESCs”) and charter schools. Attorney Sommaruga served as a
member of a board of directors for a charter school (The Bridge Academy), and further
served as its Corporate Secretary from 1997 until 2004. Thus, Attorney Sommaruga can
discuss this subject from a unique perspective, having seen “both sides” and having been
directly involved in these issues. Attorney Sommaruga has presented on these issues at a
prior Connecticut Association of Boards of Education convention and at an education law
conference sponsored by the University of Bridgeport.
Attorney Sommaruga wishes to thank Zachary D. Schurin, Esq. also of Sullivan,
Schoen, Campane & Connon, LLC, for his invaluable assistance in revising and updating
these seminar materials.
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MAGNET SCHOOLS
I.
FORMATION, GRANTS AND OPERATION: see Conn. Gen. Stat. §10-264l
A.
Purpose: As a result of the Connecticut Supreme Court’s decision in
Sheff v. O’Neill, and various court orders and agreements, the State of Connecticut has
been under a continuing obligation to eradicate segregation in the schools. Interdistrict
magnet schools are an important tool for the State in accomplishing this mission. While
their existence is not solely due to Sheff, there has been a significant proliferation of
interdistrict magnet schools, and as one will see, those schools that assist the State in
meeting its Sheff obligations receive favorable treatment under the law.
B.
But First, What Are They? An “interdistrict magnet school program”
means a program which (1) supports racial, ethnic and economic diversity, (2) offers a
special and high quality curriculum, and (3) requires students who are enrolled to attend
at least half-time. NOTE: An interdistrict magnet school program is not the same thing
as a regional agricultural science and technology school, a regional vocational-technical
school or a regional special education center.
C.
All interdistrict magnet schools must be operated in conformance with the
same laws and regulations applicable to the public schools.
D.
The State Department of Education administers (within available
appropriations) a grant program to assist the following eligible entities with the operation
of interdistrict magnet school programs:
- local and regional boards of education,
- RESCs, and
- cooperative arrangements pursuant to Conn. Gen. Stat. §10-158a.
The following entities are also eligible grant recipients in order to assist the State
in meeting the goals of the 2008 stipulation and order in Sheff v. O'Neill:
- the Community-Technical Colleges (currently, Quinebaug Valley Community
College and Three Rivers Community College),
- the Connecticut State University System,
- the University of Connecticut,
- an independent college or university, and
- any other third-party not-for-profit corporation approved by the Commissioner.
E.
Enrollment: The governing authority for each interdistrict magnet school
program in operation prior to July 1, 2005 must restrict the number of students that may
enroll in the program from any participating district to 80% of the total enrollment of the
program. The governing authority for each interdistrict magnet school program that
begins operations on or after July 1, 2005 shall restrict the number of students that may
enroll in the program from a participating district to 75% of the total enrollment of the
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program, and maintain such a school enrollment that at least 25% but not more than 75%
of the students enrolled are minority students.
F.
Applications for interdistrict magnet school program operating grants are
submitted annually to the Commissioner of Education, except that after July 1, 2009,
applications for operating grants for new interdistrict magnet schools, other than those
that the Commissioner determines will assist the State in meeting the goals of the 2008
stipulation and order in Sheff v. O'Neill, will not be accepted until the Commissioner
develops a comprehensive state-wide interdistrict magnet school plan.
The
Commissioner was to have submitted this comprehensive state-wide interdistrict magnet
school plan by January 1, 2011 to the General Assembly’s Education Committee.
G.
Criteria: In determining whether an application shall be approved and
funds awarded, the Commissioner shall consider (among other things): (1) Whether the
program offered by the school is likely to increase student achievement; (2) whether the
program is likely to reduce racial, ethnic and economic isolation; (3) the percentage of
the student enrollment in the program from each participating district; and (4) the
proposed operating budget and the sources of funding for the interdistrict magnet school.
In the case of an interdistrict magnet school that will assist the State in meeting the goals
of the 2008 stipulation and order in Sheff v. O'Neill, the Commissioner shall also
consider whether the school is meeting the desegregation standards set forth in the
stipulation and order. If such school has not met the desegregation standards by the
second year of operation, it shall not be entitled to receive a grant unless the
Commissioner finds that it is appropriate to award a grant for an additional year or years
for purposes of compliance with the stipulation and order.
H.
Per Pupil Grants
1.
Generally, the maximum amount each interdistrict magnet school
program is eligible to receive per enrolled student who is not a resident of the town
operating the magnet school is $7,085 per fiscal year. However, the per pupil grant for
each enrolled student who is a resident of the town operating the magnet school program
is only $3,000 for each fiscal year. The Commissioner may, within available
appropriations, provide supplemental grants for the purposes of enhancing educational
programs in such interdistrict magnet schools.
2.
Generally, each interdistrict magnet school operated by a RESC that
enrolls less than 55% of the school's students from a single town shall receive a per pupil
grant in the amount of $7,900 per fiscal year. If the enrollment from any one town
exceeds 55%, the grant amounts will differ, depending on the amount of overage and the
date that the school commenced operations.
a.
EXCEPTIONS:
i.
An interdistrict magnet school operated by certain entities (other than local
and regional school districts, with the exception of Harford in its operation of
Great Path Academy) that enroll less than 60% of its students from Hartford
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pursuant to the 2008 stipulation and order in Sheff v. O'Neill shall receive a per
pupil grant in the amount of $10,443 through the 2012-2013 fiscal year.
ii.
Each interdistrict magnet school operated by the Hartford school district,
pursuant to the 2008 stipulation and order in Sheff v. O'Neill is to receive a per
pupil grant for each enrolled student who is not a resident of the district in the
amount of $13,054 through the 2012-2013 fiscal year.
iii.
“Part-time” magnet schools: Any interdistrict magnet school program
operating on a less than full-time basis, but at least a half-time basis, shall be
eligible to receive a grant equal to 65% of the “typical” grant amount. Conn. Gen.
Stat. §10-264l(c)(4).
3.
Within available appropriations, the Commissioner may make grants to
entities that operate interdistrict magnet schools that assist the State in meeting the goals
of the 2008 stipulation and order in Sheff v. O'Neill, and that provide academic support
programs and summer school educational programs approved by the Commissioner to
students participating in such interdistrict magnet school programs.
4.
Within available appropriations, the Commissioner of Education may
make grants, in an amount not to exceed $75,000, for start-up costs associated with the
development of new interdistrict magnet school programs that assist the State in meeting
the goals of the 2008 stipulation and order in Sheff v. O'Neill.
I.
“Participating Districts,” “Non-Participating School Districts,”
Tuition And “Surprise” Enrollment
1.
Participating Districts. While there is no specific legal requirement,
school districts that decide to “participate” in a magnet school may have in place written
agreements that cover, among other things, enrollment/student spaces and any tuition
charges that a participating district may pay for each student that it sends to the magnet
school. NOTE: A participating district shall provide opportunities for its students to
attend an interdistrict magnet school in a number that is at least equal to the number
specified in any written agreement with the magnet school operator or in a number that is
at least equal to the average number of students that the participating district enrolled in
the magnet school during the previous three school years. Conn. Gen. Stat. §10-264l(l).
2.
Non-Participating Districts. After accommodating students from
participating districts in accordance with any enrollment agreements, an interdistrict
magnet school operator that has unused student capacity may then enroll directly into its
program any interested student. A student from a district that is not participating in an
interdistrict magnet school or the “Open Choice” interdistrict student attendance program
shall be given preference. The local or regional board of education “otherwise
responsible” for educating such student shall contribute funds to support the operation of
the interdistrict magnet school in an amount equal to the per student tuition, if any,
charged to participating districts. Conn. Gen. Stat. §10-264l(j).
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3.
However, interdistrict magnet schools that began operations on or after
July 1, 2008 pursuant to the 2008 stipulation and order in Sheff v. O'Neill may operate
without district participation agreements and enroll students directly from any district
through a lottery designated by the Commissioner. Conn. Gen. Stat. §10-264o.
4.
When does the district find out about the “direct enrollment?” The
legislature has provided some form to the process. On or before May 15 of each year,
each interdistrict magnet school operator shall provide written notification to any school
district that is “otherwise responsible” for educating a student who resides in the school
district and will be enrolled in an interdistrict magnet school under the operator's control
for the following school year. Such notification shall include the number of any such
students, by grade, who will be enrolled in an interdistrict magnet school under the
control of such operator, the name of the school in which such student has been placed
and the amount of tuition to be charged to the local or regional board of education for
such student. Such notification shall represent an estimate of the number of students
expected to attend such interdistrict magnet schools in the following school year, but
shall not be deemed to limit the number of students who may enroll in such interdistrict
magnet schools for such year. Conn. Gen. Stat. §10-264l(m).
5.
RESC magnet schools: see Conn. Gen. Stat. §§10-264l(k) and (o). Any
tuition charged to a local or regional board of education by a RESC operating an
interdistrict magnet school for any student enrolled in such interdistrict magnet school
shall be in an amount equal to the difference between (a) the average per pupil
expenditure of the magnet school for the prior fiscal year, and (b) the amount of the per
pupil state subsidy/grant plus any revenue from other sources calculated on a per pupil
basis.
6.
The Hartford exception. Local school districts would generally be
obligated to make payment of the tuition for their students that are enrolled in the magnet
schools. See Connecticut General Statutes §10-264l(j). After an outcry from districts that
were suddenly notified by the Hartford School District of enrollment of their students, the
legislature stepped in. As a result, since 2009, the Hartford School District has been
specifically prohibited from charging towns for tuition for its interdistrict magnet schools.
See Connecticut General Statutes §10-264l(0). While the legislature continually revisits
this issue, Hartford clearly cannot charge a district for “regular education” tuition for its
magnet schools (at least up through the 2012-2013 school years). As you can see from
the above description of grants, Hartford has received significant financial compensation
to cover this hole. PLEASE NOTE: There is an exception to this general prohibition:
Hartford may charge tuition for students attending the Great Path Academy, in the same
manner as a RESC magnet school. See #5, above.
7.
What if you do not pay the tuition? The statute that governs the magnet
schools operated by RESCs specifically provides that if a board of education fails to
make payment for such tuition, the State Department of Education “may withhold from
such board's town or towns a sum payable under [the Education Cost Sharing (“ECS”)
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statutes] in an amount not to exceed the amount of the unpaid tuition to the magnet
school.” See Connecticut General Statutes §10-264l(k). Besides this withholding of ECS
monies, there is no other penalty prescribed for failing to pay tuition to magnet schools
operated by the RESCs. Interestingly, there is no specific penalty of any kind set forth in
the statutes governing magnet schools operated by entities other than the RESCs.
Nevertheless, the penalties for non-payment of tuition to such magnet schools could be a)
the dis-enrollment of students, and b) the State using the ECS mechanism to withhold
monies for tuition. Of course, if the district does not pay tuition costs (whether for
regular or special education), it will not be eligible for corresponding State
reimbursement.
J.
A Recent Case: Who Should Pay For Part-Time And Pre-School
Magnet School Programs?
1.
“Part-time” magnet schools. There are several part-time magnet high
school programs, by which students attend high school in their “home” school district for
a majority of the day and then participate in a part-time magnet school enrichment
program that is dedicated to a specific mission. Examples of such programs are the
Greater Hartford Academy of the Arts (“GHAA”) and the Educational Center for the Arts
(“ECA”) in New Haven. Obviously, such part-time magnet school programs are
attractive to students, including suburban students wishing to remain in their home
schools but who also wish to immerse themselves in the subject matters offered by these
programs. Previous guidance from the State of Connecticut (at least tacitly) permitted
school districts to seek parental contribution for the cost of tuition for part-time
interdistrict magnet schools; indeed, this was a common practice. In addition, the magnet
school operators had recognized this ability to seek parental contribution for some, if not
all, of the tuition. However, on April 10, 2011, the State Department of Education
through its then-Acting Commissioner of Education issued a “Circular Letter”
announcing that the Department had now determined that school districts would be
precluded from charging back to parents any portion of the tuition costs associated with
part-time magnet schools. See Commissioner of Education, Circular Letter C-11 (April
10, 2011).
2.
Pre-school magnet school programs. While local and regional school
districts are required to provide pre-school services to students requiring special
education and related services, such school districts are generally not responsible under
Connecticut law for educating non-special education pre-school students. As such, most
school districts do not offer “universal” pre-school services for their students. Often,
school districts will provide pre-school programs for their special education students, and
then provide a limited number of slots for “typical peers”/non-special education students
(i.e., “reverse mainstreaming”). Those limited number of seats are filled by a variety of
means (usually, by way of a lottery). School districts often charge parents tuition for
these regular education slots; districts usually do not provide transportation for these
regular education pre-school students.
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3.
Perhaps realizing that filling this void would be a way to entice suburban
parents to send their students to magnet schools, and in light of a proliferation of magnet
school programs following the 2008 Sheff v. O’Neill stipulation and order, numerous
magnet schools offered pre-school programs. Students from towns that did not offer a
pre-school program could seek to enroll in magnet pre-school programs, and a magnet
school operator could bill the “sending school district” tuition for such students.
4.
The State Department of Education, via its Memorandum/Notice
concerning “Sheff v. O’Neil Stipulation Funding” dated July 1, 2008, determined that
school districts were responsible for paying for the tuition of pre-school students
attending magnet school programs, regardless of whether a school district regularly
provides pre-school services to its own students.
5.
Petition for declaratory ruling. Certain cash-strapped school districts
were upset that they could not afford to operate pre-school programs for their own
students, but were now having to pay pre-school tuition for a select group of students.
They felt that children who may be enrolled in magnet schools should not be favored
over or derive a benefit that is not offered to their counterparts in the local school district.
In addition, districts that had not previously been required to pay the entire tuition for
part-time art magnet school students were not happy with the financial consequences of
the State’s new pronouncement of an additional tuition obligation. As a result, several
school districts (led by Regional School District No. 10, along with the Newington,
Ellington, New Hartford, Barkhamsted and Regional School District No. 16 Boards of
Education) sought to challenge these edicts and thus asked the State Department of
Education to issue a declaratory ruling with regard to: a) whether “sending” local and
regional school districts are required to pay the entire (or any) tuition for resident students
attending part-time magnet school programs; and b) whether such “sending” school
districts are required to pay the tuition for resident students attending pre-school magnet
school programs. The State Board of Education agreed to rule on the matter, and
appointed an impartial hearing officer.
6.
On August 6, 2012, the hearing officer issued her decision, which was
approved and adopted by the State Board of Education on September 5, 2012. Regional
School District No. 10, et al. v. State of Connecticut Department of Education,
Declaratory Relief Case No. 11-1 (August 6, 2012). The hearing officer found that the
Connecticut statutes governing inter-district magnet schools require sending school
districts to support and pay the entire tuition for resident students attending part-time
(non-pre-school) magnet school programs, as long as those programs require students to
attend at least 450 hours per school year. Conversely, the hearing officer found that these
same laws do not require sending school districts to support and pay tuition for resident
students attending magnet pre-school programs.
a. The hearing officer found that the magnet school laws do not create an
exception to the general principle that local and regional school districts are
not required to provide or support pre-school programs for resident students;
the only mandate to provide pre-school services is for students requiring
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special education. Under the laws governing magnet schools, school districts
cannot be obliged to pay tuition for students they are not “otherwise
responsible” for educating. See Conn. Gen. Stat. §§10-264l(j) and (m). Since
school districts are generally not responsible for educating non-special
education pre-school students, they cannot be held responsible for such
students’ tuition if they should attend a magnet pre-school. The hearing
officer rejected a claim that the Sheff v. O’Neill consent decree created an
obligation to provide or pay for pre-school services.
7.
Where do we go from here? Connecticut school districts have now been
relieved of their obligation to pay tuition on behalf of resident children who elect to
attend pre-school magnet school programs. This decision at least in the short term (i.e.,
2012-2013) will result in considerable cost savings for Connecticut school districts. The
State Department of Education is paying these tuition costs for 2012-2013. Will there be
further revision to the magnet school laws by the General Assembly in 2013 that will reallocate the responsibility for payment of such pre-school magnet school tuition?
a. Who should pay for magnet school pre-school tuition? (Which entity should
be “otherwise responsible” for educating these students?) Options: i) the State
Department of Education, ii) the parents, iii) via legislative revisions, the local
or regional school districts, or iv) some or all of the above.
b. Can we ask the same question for the part-time art magnet schools? Should
these programs be treated the same as the full-time programs? (After all, there
is only 65% grant funding for the part-time programs?)
c. A hypothetical for you all to consider regarding a certain middle-aged
attorney living in the suburbs with his wife and almost three year old child.
d. Can this discussion of which entity should be “responsible” for these tuitions
costs take place without considering many larger policy issues such as i)
universal pre-school education, ii) the overall issue of the funding of
education, and iii) the role and purpose of pre-school, part-time and all magnet
school programs? In addition, who are the intended beneficiaries of these
programs (rights for members of the Sheff class v. entitlements for upper
middle class suburbanites)? Is there any role for “means testing”?
See attached September 5, 2012 testimony of Connecticut Coalition for Justice in
Education Funding” before the State Board of Education.
K.
Special Education: Connecticut General Statutes §10-264l(h) provides
that in the case of a student identified as requiring special education, the school district in
which the student resides shall: (1) Hold the planning and placement team meeting for
the student and invite representatives from the interdistrict magnet school to participate in
such meeting; and (2) pay the interdistrict magnet school an amount equal to the
difference between the reasonable cost of educating the student and the sum of the
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amount received by the interdistrict magnet school for the student pursuant to [the state
per pupil grants] and amounts received from other state, federal, local or private sources
calculated on a per pupil basis. The sending school district will then be eligible for state
special education reimbursement grants under Conn. Gen. Stat. §10-76g. If a student
requiring special education attends an interdistrict magnet school on a full-time basis, the
interdistrict magnet school is responsible for ensuring that the student receives the
services mandated by the student's individualized education program whether such
services are provided by the interdistrict magnet school or by the school district in
which the student resides.
1.
Who and how do you implement this statutory command?
As you will see, the statutory special education language for magnet schools is
remarkably similar to that for charter schools. However, special education hearing
officers and the State Department of Education have provided inconsistent guidance with
regard to sending school districts’ roles and responsibilities.
a. Generally, the decision to place a student in a magnet school is made by a
parent and is, in essence, a “unilateral placement.” Entrance, admission and
attendance at a magnet school is usually on a space available basis, with a
blind lottery occurring if there is a space limitation. Ostensibly, it is up to the
parent (not the residing school district) to choose to enroll (or dis-enroll) a
student from a magnet school. No student may be denied admission to such
programs due to, among other things, disabilities.
b. In one case, a hearing officer noted: “The assumption of the statute, that any
and all special education students can and must be accommodated in
interdistrict magnet schools when they are admitted through a blind lottery, is
unrealistic.” See Student v. Board of Education A/Board of Education B,
Final Decision and Order 07-091 (May 31, 2007). The hearing officer
explained:
On the record of the hearing, Magnet School staff members were candid in
discussing their program and resources. Board A had recommended “cotaught classes for English, Math and Social Studies”. The Magnet School
did not offer co-taught classes in these subjects. Student did attend a cotaught science class, but was removed from that class later in the year.
The record of the October 18, 2006, Magnet School PPT meeting and the
IEP developed at that meeting demonstrate that the Magnet School PPT
paid close attention to the May 2, 2006, Board A IEP and incorporated as
much of it as was possible at the Magnet School. Since Parent enrolled
Student at Magnet School, the placement cannot be considered as made by
Board A. Thus there is no violation of IDEA concerning the impossibility
of completely and exactly implementing Board A’s IEP at the Magnet
School.
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This hearing officer did not order the re-creation of a co-teaching model in the
magnet school (which ostensibly would have been charged back to the
sending school district) due to the nature of the magnet school program,
despite (arguably) a statutory obligation to ensure that all the services in the
child’s IEP are provided.
2.
Conversely, in Student v. New Britain Board of Education and Hartford
Board of Education, Final Decision and Order 11-0154 (August 11, 2011), a hearing
officer imposed obligations upon a sending district above and beyond what appear to be
contained in the statutes. In that case, a parent rejected a placement in the New Britain
Public Schools and instead placed the student at the Greater Hartford Classical Magnet
School, which was operated by the Hartford Board of Education. Generally, if a special
education student is selected in the annual magnet school lottery, and if the student’s
parent elects to place the student at the magnet school, the school must accept him,
regardless of any disability. See Commissioner of Education, Circular Letter C-17
(November 1, 2002) (“All students are eligible to attend interdistrict magnet schools and
the expectation is that all students will be included, regardless of any disability.”).
Despite the fact that the hearing officer expressly found that it was Classical
Magnet’s responsibility to inform the Board of the need to convene a PPT meeting due to
concerns over the program, and despite having further found that Classical Magnet failed
to do so, the hearing officer held not only that Classical Magnet had engaged in a
“significant violation,” but that the Board had done so as well by not convening the PPT
meeting. The hearing officer never explained how, if Classical Magnet failed to notify
the Board of the need for a PPT meeting, the Board could be held liable – in the absence
of this notice – for failing to hold such a meeting. Even though (as previously
acknowledged by a State Department of Education advisory) the magnet school is
ultimately responsible under Conn. Gen. Stat. §10-264l(h) for ensuring that services are
provided to students attending a magnet school on a full-time basis” as mandated by the
IEP, the hearing officer issued an award against the Board for compensatory services.
The hearing officer predicated this conclusion upon his assertion that the Magnet School
could not program appropriately and that “the Board and the Magnet School did not have
to continue a placement that is not providing the Student with minimal benefit.”
The hearing officer appeared to ignore the fact that the Board has no legal right to
force the parent to remove his child from Classical Magnet. The parent made the
unilateral decision to place his child at Classical Magnet and maintained him there
despite the fact that the Board had previously proposed placements at its middle school.
Nevertheless, the hearing officer ordered that the student now be placed at the Board’s
middle school. The hearing officer held that even when a parent exercises the right to
enroll a child in a magnet school, the school district and the magnet school each have a
responsibility to initiate a due process hearing against the parent if either entity believes
the placement to be inappropriate. The hearing officer would essentially require a school
board and a magnet school to take an action that seeks to override a parent’s statutory
right to place a child in a magnet school. This decision has been appealed to federal
court. NOTE: the hearing officer’s rulings in this case and in Student v. Winchester
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Board of Education, Final Decision and Order #10-0069 (February 4, 2010) appear to be
inconsistent. In another case, a different hearing officer expressly found that she did not
have the authority to override the blind admissions system at a magnet school. Student v.
Hartford Board of Education, Final Decision and Order 06-179 (October 17, 2006).
3.
How do you define the “reasonable cost of educating” a special
education student? The term “reasonable cost of educating” can be interpreted to
include all related services and accommodations, namely, those services provided in the
IEP. A sending district could be financially responsible for a provider (e.g., a
paraprofessional) that is assigned on a one-to-one basis, or solely with district students.
Can a magnet school create a flat charge to divide up costs of special education services
(e.g., a social worker that works with all special education students) on a per pupil basis?
See Memo From Anne Louise Thompson, (September 30, 2009) (creation of special
education tuition rates via costs in excess of average annual per pupil cost). But see
Memo from Acting Commissioner Coleman (February 25, 2011) (suggests that magnet
school operator can bill for any and all charges incurred for actual services documented
in the IEP and can charge general rates for a specific service for each student based upon
average costs per hour for that service). Furthermore, the sending district would be
responsible for “special” transportation. However, a sending district is not responsible
for transportation if the student does not require special transportation; the sending
district could be responsible for the cost of a paraprofessional (or other personnel) that
may be placed on a “regular” bus for a particular student.
4.
Section 504 of the Rehabilitation Act. The State Department of
Education has determined that while the magnet school operator is responsible for
physical accommodations to its building to ensure program accessibility, the sending
school district is responsible for preparing a child’s Section 504 plan and convening
meetings to accomplish the same. The State Department of Education has determined
that the magnet school will be responsible for implementing the services in the Section
504 plan, but the sending district is responsible for the costs associated with the delivery
of such services. See, e.g., Letter to Dowaliby, (December 10, 2009). The State appears
to simply borrow the special education statutory scheme and apply it to Section 504.
This determination could be open to debate, as the statutory scheme for special education
in the magnet schools contains no reference to Section 504, and it is the magnet school
that could have the obligation as a “funding recipient” to ensure and be financially
responsible for the delivery of appropriate (and non-discriminatory) educational services
to the student. 34 CFR §§104.33 and 104.34. While state law requires that students be
admitted to magnet schools regardless of disability status, the provision of the
Rehabilitation Act that a child be “otherwise qualified” to meet the program’s
requirements despite the disability could arguably serve to prevent the magnet school
from having to make substantial changes to its programs or “mission.” Cf. C.O. v.
Portland Public Schools, 679 F.3d 1162, 1169-1170 (9th Cir. 2012).
5.
Effect of “Hartford exception”? While one could argue that the statute
prohibiting Hartford from charging towns for tuition at its magnet schools means that
Hartford cannot impose any charges whatsoever on the towns, a court (or the State) could
11
reconcile these statutory provisions by ruling that towns must still pay the special
education costs in excess of the per pupil grant(s).
II.
CAPITAL GRANTS: see Conn. Gen. Stat. §10-264h
A.
A local or regional board of education, RESC or a cooperative
arrangement pursuant to Connecticut General Statutes §10-158a, and those other entities
that operate interdistrict magnet schools that assist the State in meeting the goals of the
2008 stipulation and order in Sheff v. O'Neill may be eligible for reimbursement of up to
80% of the cost of any capital expenditure for the purchase, construction, extension,
replacement, leasing or major alteration of interdistrict magnet school facilities, including
any expenditure for the purchase of equipment. NOTE: The Commissioner shall
approve only applications for reimbursement that he/she finds will reduce racial, ethnic
and economic isolation. On and after July 1, 2009, applications for reimbursement for
the construction of new interdistrict magnet schools shall not be accepted until the
Commissioner develops a comprehensive state-wide interdistrict magnet school plan,
unless the Commissioner determines that such construction will assist the State in
meeting the goals of the 2008 stipulation and order in Sheff v. O'Neill.
B.
As part of the application and grant process, the Commissioner must
approve a plan for the operation of the facility which includes, but need not be limited to:
A description of the educational programs to be offered, the completion date for the
project, an estimated budget for the operation of the facility, written commitments for
participation from the districts that will participate in the school and an analysis of the
effect of the program on the reduction of racial, ethnic and economic isolation.
C.
There are penalties if a school building ceases to be used as an interdistrict
magnet school facility, including the reimbursement of state grants.
III.
TRANSPORTATION: see Conn. Gen. Stat. §10-264i
A.
Each local or regional school district in which an interdistrict magnet
school is located shall provide the “same kind” of transportation to its children enrolled in
such interdistrict magnet school as it provides to children enrolled in other public schools
in such local or regional school district. Conn. Gen. Stat. §10-264l(f). The parent or
guardian of a child denied such transportation services may appeal such denial in the
manner provided under Conn. Gen. Stat. §§10-186 and 10-187.
B.
However, local and regional school districts are not required to provide
transportation to students to attend “out-of-district” magnet schools.
C.
What If You Choose To Provide Such Transportation Anyways? An
entity that transports a child to an interdistrict magnet school program in a town other
than the town in which the child resides is eligible to receive a grant for the cost of
student transportation. Generally, the amount of such grant shall not exceed an amount
equal to the number of such children transported multiplied by $1,300. For districts
12
assisting the state in meeting the goals of the 2008 stipulation and order in Sheff v.
O’Neill, the amount of such grant shall not exceed an amount equal to the number of
such children transported multiplied by $2,000 through the 2012-13 fiscal year.
D.
The Commissioner had been authorized to provide supplemental
transportation grants to RESCs for the purposes of transportation to interdistrict magnet
schools, within available appropriations. Similarly, the Commissioner was authorized to
provide supplemental transportation grants to the Hartford school district and the Capitol
Region Education Council (“CREC”) for the purposes of transportation of students who
are not residents of Hartford to interdistrict magnet schools operated by CREC or the
Hartford school district.
E.
The State Department of Education shall provide such grants within
available appropriations. However, a local or regional board of education, RESC or
cooperative arrangement may still receive reimbursement under the “usual” state
transportation grant statutory scheme for the reasonable transportation expenses for
which the board, service center or cooperative arrangement is not reimbursed pursuant to
this magnet school grant scheme.
IV.
A DIFFERENT KETTLE OF FISH: THE STATE-WIDE INTERDISTRICT
PUBLIC SCHOOL ATTENDANCE PROGRAM (“OPEN CHOICE”)
A.
There is also the interdistrict public school attendance program (“Open
Choice”). The purpose of the program is to: (1) Improve academic achievement; (2)
reduce racial, ethnic and economic isolation or preserve racial and ethnic balance; and (3)
provide a choice of educational programs. This is a separate statutory scheme from
the interdistrict magnet schools. Conn. Gen. Stat. §10-266aa. The State Department of
Education oversees the program. The State Department of Education pays the RESCs for
the reasonable cost of transportation for students participating in the program. The
RESCs also provide reasonable transportation services to high school students who wish
to participate in supervised extracurricular activities.
B.
The State generally provides, within available appropriations, an annual
grant to the local or regional board of education for each receiving district in an amount
not to exceed $2,500 for each out-of-district student who attends school in the receiving
district under the program. However, the grant amounts may increase (up to $6,000 per
student) based upon increased enrollment of out-of-district students in the receiving
district. Each town which receives funds shall make such funds available to its local or
regional board of education in supplement to any other local appropriation, other state or
federal grant, or other revenue to which the board of education is entitled.
C.
Each sending district and each receiving district shall divide the number of
children participating in the program who reside in such district or attend school in such
district by two for purposes of the counts for ECS monies. For purposes of the state-wide
mastery examinations, students participating in the program shall be considered residents
of the school district in which they attend school.
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D.
Tuition for Choice Schools? With limited exceptions (e.g., certain
special education costs, tuition for high school students from receiving school districts
that do not have a high school), there is no statutory authorization for the “receiving
school district” to charge tuition for “choice” students. The fact that the statutes
expressly provide for the payment for tuition/charges under certain circumstances
confirms that receiving school districts generally cannot charge regular tuition for
“choice” students.
E.
Special education: With regard to special education students, the statutes
specifically provide that sending districts pay the receiving districts an amount equal to
the difference between “the reasonable cost of providing such special education and
related services” to such student and the $2,500 grant that is given by the State to the
receiving district for each such out of district student attending its schools. The sending
district is eligible for reimbursement for such special education costs. Conn. Gen. Stat.
§10-266aa(i). As with magnet schools, the operative term is the “reasonable cost of
providing special education and related services” above and beyond the grant threshold.
The above discussion on that term with regard to magnet schools is equally pertinent to
“choice” students.
14
CHARTER SCHOOLS IN CONNECTICUT
I.
WHAT IS A CHARTER SCHOOL: see Conn. Gen. Stat. §10-66aa
A charter school is defined as a “public, nonsectarian school” that is (1)
established under a charter granted by the State Board of Education, (2) organized as a
nonprofit entity, (3) a public agency for purposes of the Freedom of Information Act, and
4) operated independently of any local or regional board of education in accordance with
the terms of its charter and state law.
II.
TYPES OF CHARTER SCHOOLS: see Conn. Gen. Stat. §10-66aa
A.
Local charter school: a public school or part thereof that is converted
into a charter school and is approved by both the local or regional board of education and
the State Board of Education.
B.
State charter school: a “new” public school approved by the State Board
of Education.
NOTE: Pursuant to this year’s much discussed Education Reform Act (Public
Act 12-116, §32), from July 1, 2012 onwards, the State Board of Education will only
grant charter school charters to proposed state or local charter schools that will either be
located in a town with one or more schools that have been designated as a
“Commissioner’s Network” school or located in a town that has been designated as a
“low achieving” school district. The “Commissioner’s Network”, which was established
by this year’s Education Reform Act, is a group of up to twenty-five of the state’s lowest
performing schools. Under this new legislation, the Commissioner of Education is given
the authority to initiate a school “turnaround process” which may result in a variety of
changes in school governance, collective bargaining, and State oversight.
III.
STATUS/NATURE OF CHARTER SCHOOLS
A.
Creatures of state or creatures of towns?
1.
State v. local charter schools.
B
Public entities? The law states that charter schools are “public” schools.
The law also specifically states that charter schools are public agencies for purposes of
the FOIA.
1.
However, 26 U.S.C. §501(c)(3)/non-profit corporation as means of
organization.
C.
Powers: see Conn. Gen. Stat. §10-66ff. Each charter school may (1) sue
and be sued, (2) purchase, receive, hold and convey real and personal property for school
purposes, and (3) borrow money for such purposes.
15
1.
The State, a local or regional board of education or the applicant for a
charter school shall have no liability for the acts, omissions, debts or other obligations of
the charter school, except as may be provided in an agreement or contract with such
charter school. Conn. Gen. Stat. §10-66ff.
IV.
FORMATION OF CHARTER SCHOOLS: see Conn. Gen. Stat. §10-66bb
A.
Process for approval
1.
Local charter schools must be approved by both the applicable local or
regional board of education and the State Board of Education.
2.
State charter schools must be approved by the State Board of Education.
NOTE: While the limit on the number of charter schools had been previously
eliminated by the 2010 “Race to the Top” legislation, this year’s Education Reform Act
caps the number of state charter school applications that can be approved on a yearly
basis at four. This cap will remain in place until the 2017-18 school year. However, the
statutory cap may be exceeded if two of the four applications are for the establishment of
two new state charter schools whose mission, purpose and specialized focus is to provide
dual language programs or other models focusing on language acquisition for English
language learners. See Conn. Gen. Stat. §10-66bb(f). In addition, please see the abovelisted restriction on future applications referenced in Section II, above.
B.
Who may submit an application?
“Any person, association,
corporation, organization or other entity, public or independent institution of higher
learning, local or regional board of education or two or more boards of education
cooperatively, or a regional education service center.”
C.
Who may not submit an application? No nonpublic elementary or
secondary school may be established as a charter school; no parent or group of parents
providing home instruction may establish a charter school for such instruction. Conn.
Gen. Stat. §10-66bb(b).
D.
Application process: see Conn. Gen. Stat. §10-66bb(d). Among other
things, the applications are to include a description of: (1) the mission, purpose and any
specialized focus of the proposed charter school; (2) the interest in the community for the
establishment of the charter school; (3) the school governance and procedures for the
establishment of a governing council that (A) includes (i) teachers and parents and
guardians of students enrolled in the school, and (ii) the chairperson of the local or
regional board of education of the town in which the charter school is located and which
has jurisdiction over a school that resembles the approximate grade configuration of the
charter school, or the designee of such chairperson, provided such designee is a member
of the board of education or the superintendent of schools for the school district, and (B)
is responsible for the oversight of charter school operations, provided no member or
16
employee of the governing council may have a personal or financial interest in the assets,
real or personal, of the school; (4) the financial plan for operation of the school, provided
no application fees or other fees for attendance, except as provided in this section, may be
charged; (5) the educational program, instructional methodology and services to be
offered to students; (6) the number and qualifications of teachers and administrators to be
employed in the school; (7) the organization of the school in terms of the ages or grades
to be taught and the total estimated enrollment of the school; (8) the student admission
criteria and procedures to (A) ensure effective public information, (B) ensure open access
on a space available basis, including the enrollment of students during the school year if
spaces become available in the charter school, (C) promote a diverse student body, and
(D) ensure that the school complies with the non-discrimination mandates of Conn. Gen.
Stat. §10-15c and that it does not discriminate on the basis of disability, athletic
performance or proficiency in the English language, provided the school may limit
enrollment to a particular grade level or specialized educational focus and, if there is not
space available for all students seeking enrollment, the school may give preference to
siblings but shall otherwise determine enrollment by a lottery, except the State Board of
Education may waive the requirements for such enrollment lottery; (9) a means to assess
student performance that includes participation in state-wide mastery examinations; (10)
procedures for teacher evaluation and professional development for teachers and
administrators; (11) the provision of school facilities, pupil transportation and student
health and welfare services; (12) procedures to encourage involvement by parents and
guardians of enrolled students in student learning, school activities and school decisionmaking; (13) document efforts to increase the racial and ethnic diversity of staff; (14) a
five-year plan to sustain the maintenance and operation of the school. Within certain
limits, an application may include, or a charter school may file, requests to waive
provisions of the general statutes and regulations; and (15) a student recruitment and
retention plan that shall include, but not be limited to, a clear description of a plan and the
capacity of the school to attract, enroll and retain students from among the populations
described above. (Emphasis added).
E.
Limit on enrollment for state charter schools: see Conn. Gen. Stat.
§10-66bb(c). Generally, no state charter school may enroll more than 250 students (or
300 students, in the case of a kindergarten to grade eight, inclusive, school), or 25% of
enrollment of the school district in which the school is located, whichever is less.
However, where a state charter school is found by the State Board of Education to have a
demonstrated record of achievement, the State may waive the enrollment limits.
F.
Linkage to Sheff/racial isolation mission: The State Board of Education
is to give preference to applicants for charter schools that will serve students who reside
in “priority school districts” or in districts in which 75% or more of the enrolled students
are members of racial or ethnic minorities and to applicants for state charter schools that
will be located at a work-site or that are institutions of higher education. In determining
whether to grant a charter, the State shall consider the effect of the proposed charter
school on the reduction of racial, ethnic and economic isolation in the region in which it
is to be located, the regional distribution of charter schools in the State and the potential
17
of over-concentration of charter schools within a school district or in contiguous school
districts. Conn. Gen. Stat. §10-66bb(c).
G.
Education Reform Act: In addition, the State Board of Education is now
to give preference to applicants for charter schools: (1) whose primary purpose is the
establishment of education programs designed to serve one or more of the following
student populations: (a) Students with a history of low academic performance, (b)
students who receive free or reduced priced lunches, (c) students with a history of
behavioral and social difficulties, (d) students identified as requiring special education,
(e) students who are English language learners, or (f) students of a single gender; (2)
whose primary purpose is to improve the academic performance of an existing school
that has consistently demonstrated substandard academic performance; (3) that
demonstrate highly credible and specific strategies to attract, enroll and retain students
from among the populations described in (1), above; or (4) that, in the case of an
applicant for a state charter school, such state charter school will be located at a work-site
or such applicant is an institution of higher education.
H.
Duration of charter: Charters will be approved for up to 5 years.
Charters may be renewed via the charter application procedures. Conn. Gen. Stat. §1066bb(f).
1.
The State Board of Education may deny an application for the renewal of
a charter if (a) student progress has not been sufficiently demonstrated, as determined by
the Commissioner, (b) the governing council has not been sufficiently responsible for the
operation of the school or has misused or spent public funds in a manner that is
detrimental to the educational interests of the students attending the charter school, (c) the
school has not been in compliance with applicable laws and regulations, or (d) the efforts
of the school have been insufficient to effectively attract, enroll and retain students from
among the following populations: (1) Students with a history of low academic
performance, (2) students who receive free or reduced priced lunches, (3) students with a
history of behavioral and social difficulties, (4) students identified as requiring special
education, or (5) students who are English language learners.
2.
In addition, the Commissioner of Education may at any time place a
charter school on probation if (a) the school has failed to (i) adequately demonstrate
student progress, as determined by the Commissioner, (ii) comply with the terms of its
charter or with applicable laws and regulations, (iii) achieve measurable progress in
reducing racial, ethnic and economic isolation, or (iv) maintain its nonsectarian status; or
(b) the governing council has demonstrated an inability to provide effective leadership to
oversee the operation of the charter school or has not ensured that public funds are
expended prudently or in a manner required by law. If a charter school is placed on
probation, the Commissioner shall require the charter school to file with the Department
of Education a corrective action plan acceptable to the Commissioner.
3.
The State Board of Education may revoke a charter if a charter school has
failed to: (a) comply with the terms of probation, including the failure to file or
18
implement a corrective action plan; (b) demonstrate satisfactory student progress, as
determined by the Commissioner; (c) comply with the terms of its charter or applicable
laws and regulations; or (d) manage its public funds in a prudent or legal manner. Unless
an emergency exists, prior to revoking a charter, the State Board of Education shall
provide the governing council of the charter school with a hearing.
4.
The governing council of a charter school may apply to the State Board of
Education for a waiver of the requirements of the enrollment lottery, provided the charter
school has as its primary purpose the establishment of education programs designed to
serve one or more of the following populations: (a) Students with a history of behavioral
and social difficulties; (b) students identified as requiring special education; (c) students
who are English language learners; or (d) students of a single gender. In addition, an
enrollment lottery shall not be held for a local charter school that is established at a
school that is among the schools with a percentage equal to or less than 5% (when all
schools are ranked highest to lowest) in “school performance index” scores.
5.
The Education Reform Act (Public Act 12-116, §33) requires the State
Department of Education to conduct a study of the feasibility and cost of a potential
“charter school opt-out enrollment lottery process” for students who reside in the
school districts in which a charter school is located. A “charter school opt-out enrollment
lottery process” would automatically include the names of all students residing in a
school district in which a charter school is located and who are enrolled in a grade served
by such charter school in the enrollment lottery, unless a student affirmatively elects to
not participate in the lottery. The Commissioner of Education is to submit this study and
any recommendations regarding an opt-out enrollment lottery process to the General
Assembly’s Education Committee by February 1, 2014.
V.
FUNDING: GENERAL
A.
State per pupil grants: see Conn. Gen. Stat. §10-66ee (currently
provides a $10,500/pupil for state charter schools). See Section D, below.
1.
State bonding/construction monies and grants
appropriations” for building projects. Conn. Gen. Stat. §10-66hh.
“within
available
2.
Under Public Act 12-116, §29, start-up grants of up to $500,000 for
certain new local charter schools.
NOTE: Public Act 12-116, §29, requires the State to pay local and state charter
school grants to the town in which the charter school is located; the money is then to pass
through to the charter school’s fiscal authority. In addition, the Act provides that the
local and state charter school grant amounts will now be included in the calculation of the
ECS grants for the town in which the charter school is located. See Public Act 12-116,
§60. The charter school monies will be added to the town’s “regular” ECS grant.
19
B.
Federal funding: specific funding existed for “start up” costs. Charter
schools also receive, in accordance with federal law and regulations, any federal funds
available for the education of pupils attending public schools.
C.
Donations: especially if §501(c)(3)/non-profit corporation.
NOTE: If at the end of a fiscal year amounts received by a state charter school
are unexpended, the charter school: (1) may use, for its expenses for the following fiscal
year, up to 10% of such amounts; and (2) may (a) create a reserve fund to finance a
specific capital or equipment purchase or another specified project as may be approved
by the Commissioner, and (b) deposit into such fund up to 5% of such amounts.
D.
Funding and Assessment of Obligations
1.
Local charter schools: Under previous law, the board of education of the
school district in which a student enrolled in a local charter school resides was generally
required to pay annually, in accordance with its charter, to the charter school’s fiscal
authority for each such student the amount specified in its charter, including the
reasonable special education costs of students requiring special education; the board of
education would then be eligible for reimbursement from the State for special education
costs. However, the Education Reform Act (Public Act 12-116, §29) further specifies
that such board of education is responsible for the financial support of a local charter
school at a level that is at least equal to the per pupil cost for the prior fiscal year, less the
state reimbursement for special education costs for the current fiscal year, multiplied by
the number of students attending such local charter school in the current fiscal year.
Beginning in the 2013-2014 fiscal year, the State Board of Education may approve,
within available appropriations, a per student grant to certain local charter schools
established after July 1, 2012 up to $3,000 per student, provided (a) the local or regional
board of education for such charter school and the representatives of the exclusive
bargaining unit for certified employees mutually agree on staffing flexibility in the
charter school, and (b) the agreement is approved by the State Board of Education.
2.
State charter schools: Pursuant to Public Act 12-116, the State currently
pays $10,500 (via the local district) for each student enrolled in the charter school. For
fiscal year 2013-14, this amount will increase to $11,000; for fiscal year 2014-15, the
amount will increase again to $11,500. This represents an increase from the $9,300 per
pupil amount that existed in 2011-2012. The amount of such grants is counted against
the annual ECS grant of the town in which the charter school is located.
3.
State charter schools and special education costs: see Section IX.
4.
Transportation: The local or regional board of education of the school
district in which the charter school is located shall provide transportation services for
students of the charter school who reside in such school district (subject to
reimbursement from state transportation grants) unless the charter school makes other
arrangements for transportation. Any such board of education may (but not shall)
20
provide transportation services to a student attending a charter school outside of the
district in which the student resides and, if it elects to provide such transportation, shall
be reimbursed via state transportation grants for the reasonable costs of such
transportation.
a.
As with “regular” public school students, charter school students may be
subject to suspensions from transportation services for disciplinary reasons as
provided under Conn. Gen. Stat. §10-233c.
b.
In addition, a parent or guardian of any charter school student who is
denied transportation services may appeal such denial as provided under Conn.
Gen. Stat. §§10-186 and 10-187.
This implies that the local board’s
transportation guidelines would apply to charter school students.
c.
Consider - a local school district’s contracts with transportation providers.
Be cognizant of this issue in the same manner as the obligation to provide
transportation services for private schools within your district.
d.
Even if a charter school provides pre-school services, there is no
obligation for the local school district to provide transportation services for such
students. In Board of Education of Hamden v. State Board of Education, 278
Conn. 326 (2006), the Connecticut Supreme Court specifically held that school
districts are not required to provide transportation services to pre-school children
attending charter schools.
5.
The governing council of a charter school may (a) contract or enter into
other agreements for purposes of administrative or other support services, transportation,
plant services or leasing facilities or equipment, and (b) receive and expend private funds
or public funds, including funds from local or regional boards of education and funds
received by local charter schools for out-of-district students, for school purposes.
6.
Charter schools may, to the same extent as local and regional boards of
education, enter into “cooperative arrangements” under Conn. Gen. Stat. §10-158a,
provided such arrangements are approved by the Commissioner of Education. Any state
charter school participating in a cooperative arrangement shall maintain its status as a
state charter school and may not be excused from any charter school legal obligations.
Conn. Gen. Stat. §10-66ee.
7.
The State Department of Education is required to annually publish a report
on all of the best practices reported by the charter schools and distribute a copy of the
report to each public school superintendent and the governing council of each charter
school. Conn. Gen. Stat. §10-66ii.
21
VI.
GOVERNANCE
A.
Governing council: See Conn. Gen. Stat. §10-66bb(d). The governing
council of each charter school must at least include: (1) teachers and parents and
guardians of students enrolled in the school, and (2) the chairperson of the local or
regional board of education of the town in which the charter school is located and which
has jurisdiction over a school that resembles the approximate grade configuration of the
charter school, or the designee of such chairperson, provided such designee is a member
of the board of education or the superintendent of schools for the school district.
B.
The governing council is responsible for the oversight of charter school
operations. No member or employee of the governing council may have a personal or
financial interest in the assets, real or personal, of the school. However, teachers
employed by the charter school actually sit on that school’s governing council. NOTE:
Contrast with Conn. Gen. Stat. §10-232 and its ban upon a teacher serving on the
local/regional board of education that employs him/her.
C.
The governing council of each state charter school shall post on any
Internet website that the council operates the (1) schedule, (2) agenda, and (3) minutes of
each meeting, including any meeting of subcommittees of the governing council. Conn.
Gen. Stat. §10-66kk. Contrast with revisions to the FOIA that eliminated a requirement
that municipal agencies post their minutes on their websites.
D.
Public Act 10-111, §5 (the so called “Race to the Top” legislation)
required the State Board of Education to issue regulations with regard to charter
management organizations, which are defined as entities that a charter school contracts
with for educational design, implementation or whole school management services.
These regulations: (a) require charter schools and charter management organizations to
disclose to the Department of Education the names of charter school governing board
members; (b) require the disclosure of sharing management personnel; (c) prohibit a
charter school and any affiliated charter management organization operating such charter
school from sharing board members with other charter schools and charter management
organizations; (d) prohibit unsecured, non-interest bearing transfers of state and federal
funds between charter schools and from charter schools to charter management
organizations; (e) define allowable direct or indirect costs and the methodology to be
used by charter management organizations to calculate per pupil service fees; and (f)
permit charter management organizations to collect private donations for purposes of
distributing to charter schools. Connecticut Agency Regulations §§10-66mm-1, et seq.
VII.
BARGAINING/EMPLOYMENT ISSUES: see Conn. Gen. Stat. §10-66dd
A.
Local charter schools: School professionals (certified personnel) belong
to the same bargaining unit as those employed in the residing local/regional school
district and are subject to same collective bargaining agreement. However, a majority of
professional employees and a majority of governing council may modify in writing the
22
collective bargaining agreement, consistent with the approved charter, for purposes of
employment at that school.
B.
State charter schools: State charter school employees have the right to
organize and bargain consistent with Teacher Negotiation Act (Conn. Gen. Stat. §10153a et seq.). The governing council serves as the board of education for purposes of the
Act. NOTE: many of the state charter school teachers do not “organize” but rather just
agree to follow the pay scale offered by the residing local school district.
C.
Tenure and leave of absence (or “what must local school districts
permit”): Certified employees employed by a local or regional board of education shall
be entitled to a 2-year leave of absence, without compensation, in order to be employed
in a charter school, provided such leave shall be extended upon request for an additional
2 years. At any time during or upon the completion of such a leave of absence, such an
employee may return to work in the school district in the position in which he/she was
previously employed or in a comparable position. Such leave of absence shall not be
deemed to be an interruption of service for purposes of seniority or the teachers’
retirement system, except that time may not be accrued for purposes of attaining tenure.
A certified employee who is not on such a leave of absence and is employed for 40
school months of full-time continuous employment by the charter school and is
subsequently employed by a local or regional board of education shall attain tenure after
the completion of 20 school months of full-time continuous employment by such board
of education. QUERY: does one acquire tenure at the charter school itself? The answer
is (probably) yes, with the teacher having all the protections of the Teacher Tenure Act.
NOTE: charter school teachers now clearly may participate in the state teacher
retirement system, with the governing council of a charter school making appropriate
contributions.
D.
Certification and special “charter school permits”: In light of a recent
legislative amendment (Public Act 11-60), the Commissioner of Education may waive
the “typical” teacher certification requirements for any administrator or person providing
instruction or pupil services employed by a charter school who holds a “charter school
educator permit,” provided that not more than 30% of the total number of administrators
and persons providing instruction or pupil services employed by a charter school hold the
charter school educator permit for the school year. Specifically, the State Board of
Education, upon the request of the state charter school governing council, may issue a
charter school educator permit to a person who is employed by the charter school as a
teacher or administrator and does not hold the initial educator, provisional educator or
professional educator certificate if such person: (1) achieves satisfactory scores on the
state reading, writing and mathematics competency examination prescribed by and
administered under the direction of the State Board of Education, or qualifies for a waiver
of such test based on criteria approved by the State Board of Education; (2) achieves a
satisfactory evaluation on the appropriate State Board of Education approved subject area
assessment; and (3) demonstrates evidence of effectiveness. Such permit shall authorize
a person to serve as an administrator or teacher in the charter school employing such
person. Each such charter school educator permit may be renewed by the Commissioner
23
of Education for good cause upon the request of the state charter school governing
council employing such person at the time the charter for the school is renewed.
Public Act 11-234 specifically provides that any administrator holding a “charter
school educator permit” shall be authorized to supervise and conduct performance
evaluations of any person providing instruction or pupil services in the charter school in
which the administrator is employed. This Act further provides that any administrator or
person providing instruction or pupil services in a charter school who holds a charter
school educator permit shall participate in the state teacher retirement system (in the
same manner as any other charter school employee) when that person obtains
professional certification pursuant to the certification statutes. Public Act 11-60 also
specifically amended the Teacher Negotiation Act so as to specifically state that charter
school employees are subject to that Act and to include those who hold a “charter school
educator permit” within the definitions of “administrators’ unit” and “teachers’ unit.”
VIII. STATUTES THAT APPLY TO CHARTER SCHOOLS
A.
While charter schools were theoretically created as “experimental
laboratories for the purpose of developing new approaches to education,” Conn. Gen.
Stat. §10-66dd(b)(1) expressly provides that “charter schools shall be subject to all
federal and state laws governing public schools.” Board of Education of Hamden v. State
Board of Education, 278 Conn. at 339-340. Thus, Connecticut charter schools have
many of the restrictions that Connecticut school districts have.
B.
A charter school may seek a waiver of state legal requirements. However,
the Commissioner of Education may not waive student mastery tests and public health
requirements. The Commissioner also may not waive non-discrimination, Teacher
Negotiation Act and collective bargaining requirements, or the role of the Commissioner
in reviewing building plans. The Commissioner may not waive the requirements that are
contained in the laws that specifically govern the formation and operation of charter
school requirements. Conn. Gen. Stat. §10-66dd(b)(3).
IX.
SPECIAL EDUCATION (WHO DOES/PAYS FOR WHAT?)
A.
See Individuals with Disabilities Education Act/Connecticut General
Statutes §10-76a et seq.: Is a charter school a local educational agency under those
statutes? The local/regional district is responsible for holding planning and placement
team (PPT) meetings and paying to a state charter school the difference between the
reasonable costs of educating the special education student and the amount of money
received by the charter school from the state for that student. See Conn. Gen. Stat. §1066ee(c)(2).
B.
The decision to place a student in a charter school is made by a parent and
is, in essence, a “unilateral placement.” Entrance, admission and attendance at a charter
school is governed and limited by Conn. Gen. Stat. §10-66bb(d)(8); indeed, many charter
schools offer open access/open enrollment on a space available basis, with a blind lottery
24
only occurring if there is a space limitation. It is up to the parent (not the residing school
district) to choose to enroll (or dis-enroll) a student from a charter school.
C.
Conn. Gen. Stat. §10-66ee (c)(2) specifically provides:
In the case of a student identified as requiring special education, the school
district in which the student resides shall: (A) Hold the planning and placement
team meeting for such student and shall invite representatives from the charter
school to participate in such meeting; and (B) pay the state charter school, on a
quarterly basis, an amount equal to the difference between the reasonable cost of
educating such student and the sum of the amount received by the state charter
school for such student [via the state per pupil grant]…..and amounts received
from other state, federal, local or private sources calculated on a per pupil basis.
Such school district shall be eligible for reimbursement pursuant to [Conn. Gen.
Stat.] §10-76g. The charter school [for] a student requiring special education
attends shall be responsible for ensuring that such student receives the
services mandated by the student's individualized education program
whether such services are provided by the charter school or by the school
district in which the student resides. (Emphasis added.)
D.
What happens when there is a dispute regarding special education
services? If there is a dispute, can the charter school be a party to a due process hearing?
One federal court case dealing with state agencies in general would appear to suggest
“no”; M.K. v. Sergi, 2007 WL 988621 (D.Conn. 2007); the structure of the statutes and
the state special education regulations would appear to suggest “no.” See Conn. Agency
Regs. §10-76h-1. However, one State Department of Education special education
hearing officer has suggested “yes.” Student v. Winchester Board of Education, Final
Decision and Order #10-0069 (February 4, 2010). But see Achievement First Amistad
Elementary School v. Student, Final Decision and Order 10-0428 (July 8, 2010)
(unresolved issue whether charter school has standing to bring a due process hearing
request).
1.
In Student v. Winchester Board of Education, the hearing officer held that
state law (Conn. Gen. Stat. §10-66ee) “creates a partnership between boards [of
education] and charter schools.” The hearing officer held that the local (or
regional) board of education is responsible for certain procedural requirements
under state and federal special education law, and that the state charter school is
responsible for the actual provision of the educational services.
2.
The hearing officer noted that a school district “has no power to change or
override a placement at a charter school.” In Connecticut, the school board’s only
power is to convene the PPT meetings and pay for the cost of special education
services provided to the student. The school board can only regain the “right” to
make placement/program decisions upon the student’s termination of the charter
school placement by the parent’s withdrawal from the state charter school.
Furthermore, as noted in the decision, the charter school (not the school board)
was responsible for providing the services mandated by the student’s IEP while
25
the student remained in the charter school. “The law is specific that the charter
schools have the ultimate responsibility for the provision of services…”
Commissioner of Education, Circular Letter C-18 (December 1, 2002).
3.
The hearing officer found that the program offered to the student at the
charter school did not provide the student with an appropriate education.
However, in light of the statutory division of responsibility, the school board
complied with its procedural requirements, was not responsible for the denial of
an appropriate education, and therefore was not liable to the parent or student for
this deprivation. The hearing officer held that the charter school was responsible
for the denial of an appropriate education to the student.1
4.
The hearing officer also held that the school board did not commit a
procedural violation in failing to convene a PPT meeting to address the student’s
poor performance while attending the charter school. The hearing officer held
that it was the charter school’s responsibility to convene a PPT to address any
performance concerns during any school year that the student attended the school.
QUERY: What if the charter school had been a party and was ordered to provide
additional services or “compensatory education”? Would the local board then have had
to pay for these services in light of Conn. Gen. Stat. §10-66ee (c)(2), since these charges
would be over the per pupil grant threshold? How does the decision concerning a
magnet school student in Student v. New Britain Board of Education and Hartford Board
of Education, Final Decision and Order 11-0154 (August 11, 2011) affect the above
assumptions? As noted above, in Student v. New Britain Board of Education, et al., the
same hearing officer as in the Winchester case conversely held that a similar special
education statutory scheme may require a sending school district and/or magnet school
operator to seek to override a magnet school placement.
E.
Charter schools must comply with Section 504 of the Rehabilitation Act
(29 U.S.C. §794). However, it appears that parents may not bring a claim for damages
under Section 504. C.O. v. Portland Public Schools, 679 F.3d 1162, 1169-1170 (9th Cir.
2012). Indeed, while state law requires that students be admitted to charter schools
regardless of disability status, the provision of the Rehabilitation Act that a child be
“otherwise qualified” to meet the program’s requirements could arguably serve to prevent
the charter school from having to make substantial changes to its programs or “mission.”
F.
Special education transportation obligations: One can assume that the
obligation to provide transportation to charter school students would include the
obligation to provide “special” transportation, subject to the cost sharing discussed above.
1
However, the hearing officer held that since the charter school was not a party in this due process
hearing, he could not issue any orders against the charter school.
26
THE FUTURE WITH MAGNET AND CHARTER SCHOOLS
A.
Are magnet and charter schools succeeding?
What measure?
Objective vs. subjective criteria.
Mastery Tests?
Post graduate outcomes?
Racial/economic isolation? Parent happiness?
B.
Areas of conflict: Transportation, records, special education. In the
Winchester case, the hearing officer commented on the difficulty with the accessibility of
the student’s records at the charter school. Access to student records is often an issue for
both charter schools and school districts. The recent special education cases display that
there may be conflict with which entity is responsible for certain duties and services; that
same divide may exist for Section 504 students. Also, the recent part-time/pre-school
magnet school case highlights the funding squeeze and its effect on board/magnet school
operator relationships. Future legislative actions in response to the outcome of that case
will either resolve or create conflict. In addition, possible changes in funding may either
resolve or create competition between these school entities.
C.
Results from the previous “Race to the Top” and the recent Education
Reform Act? Charter schools are here to stay and have a certain degree of bipartisan
political favoritism.
D.
Future ideas for funding and proliferation: See Report of Connecticut
Commission on Educational Achievement, pp. 20-21 (2010). The report recommends
that a new funding system be created over the next 3-5 years that would involve, among
other things, allowing money to follow students to the public school of their parents'
choice (including charter and magnet schools). The charter and magnet schools would
receive state monies consistent with the per pupil costs of the “typical” public schools,
but would be responsible for their own transportation and special education costs. To
some degree, the 2012 Education Reform Act makes the token gesture of having the
monies for state charter schools pass through the local school district.
E.
Connecticut Coalition for Justice in Education Funding v. Rell
lawsuit: See attached September 5, 2012 testimony before the State Board of Education.
Are we all in this together?
F.
Instruments of cooperation: Cooperation between charters and local
districts via “cooperative arrangements.” Purchases and services. See Conn. Gen. Stat.
§10-158a.
G.
Can we learn from each others’ best practices?
27
TESTIMONY OF THE
CONNECTICUT COALITION
FOR .TCTSTICJ3:
IN EDUCATION FUNDING
TO THE
STATE BOARD OF EDUCATION
September 5, 2012
My name is Merrill Gay. My son is a sophomore at New Britain High School. I serve as the parent
representative on the Steering Committee and Treasurer for the Connecticut Coalition for Justice in
Education Funding. I am also long-time a longtime advocate of universal preschool.
Today, I am here speaking on behalf of the Connecticut Coalition for Justice in Education Funding, in
regards to the Petition for Declaratory Ruling, pertaining to whether school districts should be held
liable for tuition to interdistrict magnet school programs for preschool students enrolled in those out-ofdistrict programs.
COEF offers the following observations:
•
We believe that universal preschool, like education for grades K-12, is an essential component of
any constitutionally adequate and equitable public school system.
•
The current problem arises because the state has no fair and rational basis for funding
education, but rather relies upon politically contrived school finance formulas and statutes that
enflame fiscal and enrollment competition. State funding inequities and inadequacies, both
within and across the several parallel school systems now operating in Connecticut (i.e.,
traditional municipality-based districts, interdistrict magnets, charters, technical high schools,
and regional vocational agriculture centers), magnify the hurdles every community, school, and
educator faces in delivering quality education and ensuring equal educational opportunity for all
children.
•
Given the inadequacy and inequity of state education aid, no school district is able to offer
universal preschool for its local resident families. Indeed, some districts cannot even afford fullday kindergarten. Unless and until the state's funding system is revamped to reflect the true
cost of educating all students - including all preschool students whose parents wish to enroll
them in NAEYC-accredited programs either in their home districts or elsewhere - no sending
district should be required to pay magnet school tuition for preschoolers.
•
Charging magnet school tuition for preschoolers differs from the existing practice of charging
tuition for K-12 students who attend magnets. This is because the state does not include
preschool children in districts' resident student count. Thus no state ECS funding supports the
education of these young children and there would be no ECS revenue to help offset some of
the local cost. Moreover, it is our understanding that in some cases, magnet tuition for
preschoolers would be charged in an amount that actually exceeds the modest net current
expenditure per pupil for districts' own full-time, locally educated K-12 students.
•
We support the 2008 Sheff agreement's inclusion of preschool as a part of the Sheff solution.
However, to operationalize that facet of the agreement, the state should fully fund those
preschool slots and also provide 100 percent of the cost of transporting these young and fragile
students from their home districts to the magnets. Only with free enrollment and free
transportation provided by the magnet can those preschool slots be made equitably available to
all families who may be interested in sending their young children to out-of-district schools.
We thank you for this opportunity to weigh in.
# # #
The Connecticut Coalition for Justice in Education Funding (CCJEF) is a broad-based coalition of
municipalities, local boards of education, statewide professional education associations, unions, and
other pro-education advocacy organizations, parents and schoolchildren aged 18 or older, and other
concerned Connecticut taxpayers. Member school communities are home to nearly half o/Connecticut's
public school students, including some three-fourths ofall minority students, those from low-income
families, and students from homes where English is not the primary language.