Charter schools, equal protection litigation, and the new school reform movement

New York University Law Review

Volumn 73, Issue 4, 1998, Pages 1290-1326

  Huffman, Kevin S ^a  

^a NONE

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EID: 22444455965     PISSN: 00287881     EISSN: None     Source Type: Journal    
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References (227)

1. See generally Jonathan B. Cleveland, School Choice: American Elementary and Secondary Education Enter the "Adapt or Die" Environment of a Competitive Marketplace, 29 J. Marshall L. Rev. 75, 96-98 (1995) (describing various school choice proposals).
2. See id. at 130 (describing charter schools as part of supply-side movement in education intended to create "disparate" schools and corresponding competition).
3. See Richard Lee Colvin, School Vouchers Passing Milwaukee Test: Education: They're Working as Planned and Haven't Wrecked the Public System, L.A. Times, Oct. 26, 1996, at A1 (describing most supporters of vouchers as conservative Republicans seeking to introduce market forces to education).
4. See James Peyser, School Choice: When, Not If, 35 B.C. L. Rev. 619, 622 (1994) (arguing that education establishment has vested interest in maintaining the status quo);
5. Neal R. Peirce, Charter Schools - and Those Who Resist Them, Baltimore Sun, Nov. 4, 1996, at 11A (citing Joe Nathan, charter school expert, claiming that unions or school boards have used political muscle against charter schools in numerous states).
6. See Janette Rodriguez, Out-of-State Teachers Coming to Texas for Jobs, Fort Worth Star Tel., Sep. 23, 1996, at 11 (citing U.S. Department of Education study saying that teacher shortages have forced many districts to hire alternative certification teachers without traditional teacher education backgrounds).
7. See Martin Kondracke, GOP Waffles on Education, Dallas Morning News, Aug. 30, 1993, at 13A (arguing that Republicans favored centralized national standards under President Bush, but not under President Clinton);
8. 2000 Goals?, Richmond Times-Dispatch, Oct. 18, 1993, at A8 (editorializing that Goals 2000 Program which passed House should be renamed 2000 Goals because of its multiple mandates).
9. See Stuart Biegel, The Wisdom of Plyler v. Doe, 17 Chicano L. Rev. 46, 49-50 (1995) (arguing that Republican political victories of 1994 empowered school choice movement, leading to greater decentralization of public schools).
10. See Peyser, supra note 4, at 624-25 (claiming that school choice liberates both parents and individual schools to develop curricula to "develop character and a moral sense").
11. See U.S. Dep't of Educ., A Study of Charter Schools: First Year Report (May, 1997) 〈http://www.ed.gov/pubs/charter/〉. Charter schools vary by state as each state legislature sets its own regulations. See infra notes 34-37 and accompanying text.
12. See Joe Nathan, Charter Schools: Creating Hope and Opportunity for American Education 2 (1996).
13. See id. at 3.
14. See The Center for Education Reform, Charter Schools Legislation and Laws (July 1997) 〈http://edreform.com/laws/chlaws.htm〉 (listing states with charter school enabling acts as following: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania, Rhode Island, South Carolina, Texas, Wisconsin, and Wyoming).
15. See Janita Poe, Budget, Student Pressures Weigh on Charter Schools, Chicago Trib., Jan. 11, 1998, at Metro 1 (describing charter schools as popular alternative to traditional public education).
16. See infra Part II.
17. 85 F.3d 481 (10th Cir. 1996).
18. See id. at 484.
19. See id. at 483.
20. See id. at 485.
21. See id. at 483.
22. See id. The plaintiffs also alleged a violation of Title VI of the Civil Rights Act. See id. at 484. The court held that the plaintiffs had failed to show discriminatory impact as required by that Act. See id. at 486-87. This Note does not discuss potential Title VI challenges. For a discussion of Title VI litigation in school choice environments, including charter schools, see generally Stuart Biegel, School Choice Policy and Title VI: Maximizing Equal Access for K-12 Students in a Substantially Deregulated Educational Environment, 46 Hastings L.J. 1533 (1995) (arguing that Title VI litigation in public education has potential to strike down school choice and voucher programs).
23. See Villanueva, 85 F.3d at 486-88.
24. See Nathan, supra note 10, at 70-71.
25. See supra note 12 for list of states that have charter school enabling acts.
26. See infra notes 102-04 and accompanying text.
27. See Tim Simmons, Reform Without Rules: Why Charter Schools Are All Over the Map, Raleigh News & Observer, Feb. 15, 1998, at A1 (describing schools' freedom from traditional regulation); Congressional Testimony by Cornelia M. Blanchette, Sept. 16, 1997, available in 1997 WL 14150775 [hereinafter Blanchette Testimony] (testifying before Subcommittee on Early Childhood, Youth and Families) (same).
28. Congressional Testimony by Gerald N. Tirozzi, June 26, 1997, available in 1997 WL 11234343 (testifying before Subcommittee on Early Childhood, Youth and Families) (describing process by which charter schools are created).
29. See id.
30. See id.
31. See Nathan, supra note 10, at 7 ("[I]t is a key element in the charter school strategy that charter schools will receive the same as, and no more than, the state per-pupil average spent on education.").
32. See id. at 2-3 (listing benefits of charter school legislation).
33. See Chester E. Finn, Jr. et al., Charter Schools in Action: What Have We Learned? 64 (1996) (quoting Lamar Alexander, former U.S. Secretary of Education, calling charter school movement "old-fashioned horse-trading" in its trade of rules and regulations for accountability); see also Opening and Closing Remarks by the President in Roundtable Discussion on Charter Schools, M2 Presswire, Sept. 23, 1997, available in 1997 WL 14463447 [hereinafter President's Roundtable] (calling charter schools "public schools that make a simple agreement: in exchange for public funding, they get fewer regulations and less red tape, but they have to meet high expectations, and they keep their charter only so long as their customers are satisfied they're doing a good job").
34. The U.S. Department of Education study on charter schools reported that about 60% of charter schools are newly-created while about 15% were previously public schools and about 25% were previously private schools. See U.S. Dep't of Educ., supra note 9.
35. See, e.g., Minn. Stat. Ann. § 120.064(4)(b) (West Supp. 1998) ("Before the operators may form and operate a school, the sponsor must file an affidavit with the state board of education stating its intent to authorize a charter school. . . . The state board must approve or disapprove the sponsor's proposed authorization within 60 days of the receipt of the affidavit.").
36. See, e.g., N.H. Rev. Stat. Ann. § 194-B:3(II) (1995) ("Except as expressly provided in this chapter, the duty and role of the local school board relative to the establishment of a charter school shall be in good faith to approve or disapprove the proposed charter school contract . . . .").
37. See, e.g., Cal. Educ. Code § 47607 (West Supp. 1998): (b) A charter may be revoked by the authority that granted the charter under this chapter if the authority finds that the charter school did any of the following: (1) Committed a material violation of any of the conditions, standards, or procedures set forth in the charter petition. (2) Failed to meet or pursue any of the pupil outcomes identified in the charter petition. (3) Failed to meet generally accepted accounting standards of fiscal management. (4) Violated any provision of law.
38. See, e.g., Colo. Rev. Stat. Ann. § 22-30.5-108(2) (West 1995) ("A charter applicant or any other person who wishes to appeal a decision of a local board of education concerning a charter school shall provide the state board and the local board of education with a notice of appeal . . . within thirty days . . . ."). But see Kan. Stat. Ann. § 72-1907(b) (1997) ("The decision of a board of education to nonrenew or revoke a charter is not subject to appeal.").
39. See Blanchette Testimony, supra note 25.
40. The Hudson Institute, a conservative think tank, has divided state legislation into categories based on the relative freedom given to schools. See Finn et al., supra note 31, at 48. Their study labels enabling acts that provide the most freedom as "strong" legislation, while acts adhering most closely to traditional public schools structure are "weak." Id. Determining factors include whether noncertified teachers may be hired, whether any individual or group can form a school, whether there are automatic exemptions from many state rules and policies, and whether state funds are available for start-up costs and technical assistance. See id.; see also Bruce V. Manno, Viewpoint: Study Shows Charter Schools are Promising Reform Strategy, Tacoma News Trib., Oct. 28, 1996, at A9 (summarizing Hudson Institute study).
41. See Finn et al., supra note 31, at 109-10 (describing slow progress of movement in Wisconsin).
42. See id. at 87-93 (summarizing charter laws and results).
43. See id. at 86 (charting and ranking laws of Wisconsin and other states).
44. See Wis. Stat. Ann. § 118.19(1) (West Supp. 1997) ("Any person seeking to teach in a public school, including a charter school . . . shall first procure a license or permit from the department . . . .").
45. See id. § 118.30(2)(c) ("The results of examinations administered under this section to pupils enrolled in public schools, including charter schools, may not be used to evaluate teacher performance . . . .").
46. Id. § 118.40.
47. See id. § 118.40(1)(m).
48. See Finn et al., supra note 31, at 107-09 (describing some of charter school regulatory hurdles).
49. See Minn. Stat. Ann. § 120.064(4a) (West Supp. 1998).
50. See id. § 120.064(11).
51. See Finn et al., supra note 31, at 106, 109. Minnesota had 20 charter schools in 1996-97, while Wisconsin, with the "weakest" legislation that the Hudson Institute reviewed, had only six charter schools. See id.
52. See Hal Mattern, Arizona's Law Drawing Credit - and Blame - for Charter Proliferation, Ariz. Republic, Sept. 22, 1996, at A10 (describing Arizona law as "strongest" or "too lenient" charter school law, depending on perspective, and citing Hudson Institute study's praise of Arizona law).
53. See Finn et al., supra note 31, at 87 (describing growth of charter school movement in Arizona because of legislation).
54. See id. at 85 (charting legislative features).
55. See Ariz. Rev. Stat. Ann. § 15-183(E)(5) (West Supp. 1997); see also id. § 15-183(H) (providing that charter schools "may contract, sue and be sued").
56. See id. § 15-183(I).
57. See Telephone Interview with Monica Liang, School Director of Tertulia (Jan. 12, 1997). Ms. Liang's charter school opened in South Phoenix, Arizona in August, 1996. The charter was granted in 1995 based on an application that included curriculum design but prior to securing any buildings to house the school. See id.
58. See Finn et al., supra note 31, at 87 (projecting rapid growth in Arizona charter school movement).
59. See id. at 38 (describing legislative hurdles for charter school movement). For example, in Delaware, only five schools may be chartered each year. See Del. Code Ann. tit. 14, § 501 (1996). In California, on the other hand, 100 charter schools may operate in a given year. See Cal. Educ. Code § 47602 (West Supp. 1998).
60. See Note, Recent Legislation, 110 Harv. L. Rev. 1651, 1651-56 (1997) (describing new charter school statutes passed in Connecticut and South Carolina, and concluding that limitations on numbers of schools, certification of teachers, and difficulty entering market will prevent charter schools from creating true competition).
61. The Center for Education Reform claims that 781 charter schools were operating as of August, 1998, with 505 additional charters already approved. See Center for Education Reform, Charter School Highlights and Statistics (visited Aug. 1, 1998) 〈http:// edreform.com/pubs/chglance.htm〉.
62. See U.S. Dep't of Educ., A Study of Charter Schools: First Year Report: Executive Summary (May 1997) 〈http://www.ed.gov/pubs/charter/execsum.html〉.
63. See Center for Education Reform, Charter School Survey (visited May 24, 1998) 〈http://edreform.com/research/css9697.htm〉 (citing survey of charter school founders).
64. See Manno, supra note 38, at A9 (detailing Hudson Institute study).
65. See Peirce, supra note 4, at 11A (describing City Academy in St. Paul, Minnesota as accepting only high school dropouts).
66. See Finn et al., supra note 31, at 20.
67. See id. at 56.
68. See U.S. Dep't of Educ., A Study of Charter Schools: First Year Report: Summary (May, 1997) 〈http://www.ed.gov/pubs/charter/chap3c.html〉.
69. See Doug Cumming, '98 Georgia Legislature Weighing Benefits of Charter Schools: Conference in Decatur: Two-day Session Will Focus on Legislation, Expansion and Results From Other States, Atlanta J.-Const., Feb. 9, 1998, at C1 (citing figures from U.S. Department of Education, Georgia Department of Education, and Education Commission of the States).
70. See Thomas Frank, Charter Schools May Get Reprieve, Denver Post, Jan. 26, 1998, at B3.
71. See Cumming, supra note 67, at C1.
72. See id.
73. See infra notes 208-09 and accompanying text.
74. See Villanueva v. Carere, 85 F.3d at 481 (10th Cir. 1996).
75. First-come-first-served admissions allow schools to fill their slots with students from the best informed families. See infra notes 205-06 and accompanying text. 74 Most states do not allow past academic performance to be considered in limiting admission, but many do not prohibit consideration of past behavior in school. See infra note 214.
76. These contracts may be problematic if families cannot meet the terms. See infra notes 216-17 and accompanying text.
77. See Nathan, supra note 10, at 1 (describing benefits of charter schools).
78. See id. at 11-17 (arguing that need for charter schools exists).
79. See id. at 17-19 (arguing that entrepreneurship is major force behind charter school movement).
80. See e.g., Telephone Interview with Liang, supra note 55 (describing how Liang and Jesus Aguirre, former public school teachers, sought chances to institute English/Spanish dual language instruction in lower grades).
81. See Nathan, supra note 10, at 75 (discussing resistance to change in current system).
82. See id. at 76.
83. See Simmons, supra note 25, at A1 (discussing North Carolina movement and its proponents' arguments that lack of state regulation is good for movement).
84. See Congressional Testimony by Jeanne Allen, Sept. 16, 1997, available in 1997 WL 14150772 (testifying before Subcommittee on Early Childhood, Youth and Families about charter schools).
85. See Cleveland, supra note 1, at 130 (describing charter schools as part of supply-side movement in education intended to create "disparate" schools and corresponding competition).
86. See id. at 95.
87. See Nathan, supra note 10, at 89-90 (arguing that opening charter schools has caused other public schools to improve services).
88. See id.
89. See Cleveland, supra note 1, at 133.
90. See id. at 133-34.
91. See Richard C. Seder, Allow Charter Schools to Reach Their Full Potential, Christian Sci. Monitor, Oct. 3, 1997, at 18 (arguing for stronger charter school movement).
92. See Nathan, supra note 10, at 134 (stating that "minority students are over-represented in charter schools").
93. See Cleveland, supra note 1, at 151-52 (arguing that vouchers will ultimately be necessary to affect fundamental change in public education but that charter schools and school choice are intermediate step: "Unfortunately, such timidity may be politically necessary in light of the education establishment's stranglehold on maintaining its monopoly. Sometimes, to get from A to C, you need to stop at B."). This type of rhetoric alarms teachers' unions and may prevent the charter school movement from ever having its maximum impact.
94. See Carol H. Weiss, Foreword, in Who Chooses? Who Loses? vi, vii (Bruce Fuller & Richard F. Elmore eds., 1996) [hereinafter Fuller & Elmore, Who Chooses? Who Loses?] (stating that critics of school choice fear that such programs will lead to schools catering to a narrow group without concern for greater good). Another chapter in that book argues that both school choice advocates and opponents are overly simplistic in their prediction of school choice outcomes.
95. See Amy Stuart Wells, African American Students' View of School Choice, in Fuller & Elmore, Who Chooses? Who Loses?, supra, at 25, 25. Free market supporters' assumptions that all parents will act for the educational benefit of their children are naive, and opponents' predictions that only low-income children of color will be left behind are equally inaccurate. See id. However, it is true that parents with more education and fewer children are consistently more likely to participate in school choice programs. See, e.g., id. at 30-31;
96. see also Richard F. Elmore & Bruce Fuller, Conclusion: Empirical Research on Educational Choice: What Are the Implications for Policy-Makers?, in Fuller & Elmore, Who Chooses? Who Loses?, supra, at 187, 190;
97. Valerie Martinez et al., Public School Choice in San Antonio: Who Chooses and with What Effects?, in Fuller & Elmore, Who Chooses? Who Loses?, supra, at 50, 57-58.
98. See, e.g., Andrew Cain, Assembly Embraces Charter Schools, Wash. Times, Feb. 5, 1998, at C3 (describing debate in Virginia State Assembly and comments from critics that charter schools will siphon money to educate only "the cream of the crop").
99. See Robin D, Barnes, Black America and School Choice: Charting a New Course, 106 Yale L.J. 2375, 2400 (1997) (arguing that charter schools' lack of professional requirements "can be seen as the equivalent of authorizing paralegals to run law firms and perform routine legal services, tasks that have traditionally only been executed by lawyers").
100. See generally Teachers' Unions and Charter Schools, N.Y. Times, Nov. 23, 1997, at 4.
101. See Gail Russell Chaddock, Teachers Unions Jump on Bandwagon of School Reform, Christian Sci. Monitor, Oct. 14, 1997, at 10 (describing shift of National Education Association and American Federation of Teachers away from opposition to charter schools and other reform efforts).
102. Some unions support what the conservative Hudson Institute would call "weak" legislation. See Chester E. Finn Jr. & Bruno V. Manno, A Promising Reform Challenges Education's Status Quo, San Diego Union-Trib., Sept. 22, 1996, at G1;
103. see also Jeanne Allen, The NEA and Charter Schools: Gift Horse or Trojan Horse? (visited May 1996) 〈http://edreform.com/oped/trojan.html〉 (questioning motives of country's largest teachers' union in planning to open and operate five charter schools).
104. See, e.g., Steven Susens, Legislators Greet Sundquist Initiatives with Skepticism, Nashville Banner, Feb. 3, 1998, at A3 (describing Tennessee Governor's plan to implement charter schools and skeptical response from legislators and state teachers' union).
105. See Rene Sanchez, Charter Schools Popular Among Politicians, Raleigh News & Observer, October 20, 1996, at A31 (describing joint funding support by both Democrats and Republicans).
106. See supra notes 37-56 and accompanying text.
107. See Sanchez, supra note 100, at A31.
108. See id.
109. See generally President's Roundtable, supra note 31 (describing Clinton's support for charter schools and his claim that new schools would be enough to create ripple effect throughout nation's public schools).
110. See, e.g., Daniel J. Garfield, Don't Box Me In: The Unconstitutionality of Amendment 2 and English-Only Amendments, 89 Nw. U. L. Rev. 690, 693 (1995) (arguing that traditional Equal Protection Clause interpretation looks to facial discrimination against suspect class or abridgment of rights).
111. See, e.g., Phillip J. Closius, Social Justice and the Myth of Fairness: A Communal Defense of Affirmative Action, 74 Neb. L. Rev. 569, 584 (1995) (arguing that gains made by equal protection challenges were critical to civil rights movement but dealt only with elimination of "conscious, admitted, on-its-face racial discrimination").
112. 347 U.S. 483 (1954).
113. The threshold of state involvement that triggers the Fourteenth Amendment may have been raised recently. See infra notes 120-27 and accompanying text.
114. See Roni R. Reed, Education and the State Constitutions: Alternatives for Suspended and Expelled Students, 81 Cornell L. Rev. 582, 589-90 (1996) (describing holding in San Antonio Independent School District v. Rodriguez, 411 U.S. 1 (1973), that education is not fundamental right, leading Court to analyze challenged state action with more deferential rational basis standard).
115. See Villanueva v. Carere, 85 F.3d 481, 488 (10th Cir. 1996) (dismissing challenge to Colorado Charter School Act, analyzing level of scrutiny to be used in examining state legislative action, and writing that "deference" to state legislation should be "abandoned" when legislative action either disadvantages a "suspect class" or impinges upon exercise of "fundamental right")
116. See Reed, supra note 109, at 615-16 (describing application of strict scrutiny to school expulsion).
117. See Rodriguez, 411 U.S. at 28.
118. See John Dayton & Anne P. Dupre, Equal Protection of the Laws: Recent Judicial Decisions and Their Implications for Public Educational Institutions, 114 West Educ. L. Rep. 1 (1997), available in Westlaw, WELR database (analyzing Court's standard of review in equal protection decisions).
119. Some commentators have argued that courts actually utilize multiple levels of review rather than the simplistic two-tiered approach. See Stuart Biegel, Reassessing the Applicability of Fundamental Rights Analysis: The Fourteenth Amendment and the Shaping of Educational Policy after Kadrmas v. Dickinson Public Schools, 74 Cornell L. Rev. 1078, 1087-99 (1989) (discussing evolution of "heightened" standard of review and place of education litigation within this standard); see also Rodriguez, 411 U.S. at 99 (1973) (Marshall, J., dissenting) (arguing that level of scrutiny in equal protection cases should vary with "the constitutional and societal importance of the interest adversely affected and the recognized invidiousness of the basis upon which the particular classification is drawn"). Marshall later affirmed that view in his dissent in City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 460, 470 (1985) (Marshall, J., dissenting), arguing that the analysis should depend on the classification and nature of the burden or benefit being distributed. The Supreme Court is loathe to find new fundamental rights though, and has declared explicitly that education is not a fundamental right. See Rodriguez, 411 U.S. at 35. Some commentators believe that there is still room for identification of "important" interests and an intermediate level of review. See Biegel, supra note 7, at 47-48 (citing heightened standard of review utilized in Plyler v. Doe, 457 U.S. 202, 222-23 (1982)). Commentators supporting this analysis of equal protection jurisprudence argue that judges are unlikely to return to a strictly two-tiered analysis of equal protection rights because such analysis is practically outcome-determinative. See Laurence Tribe, American Constitutional Law 1610 (2d ed. 1988). Despite this assessment, courts continue to regularly apply tiered analysis in equal protection cases. See Vacco v. Quill, 117 S. Ct. 2293, 2296 (1997) (upholding New York's prohibition on assisted suicide against equal protection challenges); Villanueva, 85 F.3d at 488 (applying rational basis standard).
120. See, e.g., Rodriguez, 411 U.S. at 40.
121. See Gerald Gunther, The Supreme Court, 1971 Term-Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1, 8 (1972) (describing Warren Court's two-tiered approach in which "[s]ome situations evoked the aggressive 'new' equal protection, with scrutiny that was 'strict' in theory and fatal in fact; in other contexts, the deferential 'old' equal protection reigned, with minimal scrutiny in theory and virtually none in fact").
122. See id. But see Romer v. Evans, 517 U.S. 620 (1996) (finding Colorado's Amendment 2 unconstitutional under Equal Protection Clause). The Court used a rational basis review but found that "[a] law declaring that in general it shall be more difficult for one group of citizens than for all others to seek aid from the government is itself a denial of equal protection of the laws in the most literal sense." Id. at 1628. This Amendment, though, overtly singled out homosexuals for different treatment.
123. See Washington v. Davis, 426 U.S. 229, 239 (1976) (holding that District of Columbia test for police officers was not unconstitutional solely because of racially discriminatory impact but that discriminatory purpose must be proven); Villanueva, 85 F.3d at 486 (finding that no intent could be demonstrated).
124. See Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977) (holding that plaintiffs failed to prove discriminatory intent in rezoning decision but allowing that circumstantial evidence and discriminatory impact might prove discriminatory purpose in some cases); Villanueva, 85 F.3d at 486 (holding that plaintiffs failed to meet this standard).
125. See Terry v. Adams, 345 U.S. 461, 469 (1953) (finding Texas Jaybird Party to be state actor when its preprimary nominations inevitably secured Democratic Party nominations for general election); Smith v. Allwright, 321 U.S. 649, 664-65 (1944) (holding that Texas Democratic Party primary system is sufficiently public in its function to be considered state actor).
126. 457 U.S. 830 (1982).
127. See id. at 837.
128. See id. at 831.
129. See id. at 843-44. But see Milonas v. Williams, 691 F.2d 931, 939-40 (10th Cir. 1982) (recognizing state action in case similar to Rendell-Baker but distinguishing case because plaintiffs were students rather than teachers); Daphne Barak-Erez, A State Action Doctrine for an Age of Privatization, 45 Syracuse L. Rev. 1169, 1189 (1995) (questioning whether ruling would be different if case involved students rather than teachers).
130. See, e.g., Mass. Gen. Laws Ann. ch. 71, § 89 (West 1996) (stating "[a] charter school shall be a public school, operated under a charter granted by the secretary of education"). Though not all states have such an explicit definition, all enabling acts describe who is in charge of oversight of the schools, and from where state funding will come.
131. See supra Part I.A.
132. See Council of Org. and Others for Educ. About Parochiaid v. Governor of Michigan, 548 N.W.2d 909 (Mich. Ct. App. 1996) (striking down state charter school legislation because state did not have sufficient control over school to meet state constitutional mandate). Michigan's charter school legislation was originally struck down by Judge William Collette of the Ingham County Circuit Court as unconstitutional since it created ostensibly public schools without sufficient oversight by the state. See id. at 911-12. Judge Collette noted that merely defining a charter school as a public school did not make it one. See id. at 912-13. He argued that public schools must be under exclusive control of the state and must be open for enrollment to all students in the district. See id. Specifically at issue in Michigan was the absence of State Board of Education oversight of the charter schools. This ruling could show that if a charter school is a constitutional public school, it must necessarily have the type of state ties that would make it a state actor for purposes of the Fourteenth Amendment. For further commentary, see L. K. Beale, Charter Schools, Common Schools, and the Washington State Constitution, 72 Wash. L. Rev. 535, 535-37 (1997) (examining whether 1996 charter school initiative would have violated Washington state constitution's definition of "common schools"); see also infra Part II.B (describing state education clauses and impact on state constitutional norms).
133. See Plyler v. Doe, 457 U.S. 202, 222-23 (1982) (reviewing denial of education to illegal immigrants through intermediate level of review).
134. 411 U.S. 1 (1973).
135. See id. at 5.
136. See id. at 6.
137. See id. at 56-58.
138. See id. at 2.
139. See id. at 27-29.
140. 457 U.S. 202 (1982).
141. See id. at 230.
142. See id. at 221.
143. Id.
144. See id. at 235 (Blackmun, J., concurring) ("This conclusion is fully consistent with Rodriguez. The Court there reserved judgment on the constitutionality of a state system that 'occasioned an absolute denial of educational opportunities to any of its children . . . .'" (quoting Rodriguez, 411 U.S. at 37)).
145. See id. at 205.
146. See Biegel, supra note 114, at 1098.
147. See Plyler, 457 U.S. at 222.
148. Chief Justice Burger predicted this result in his dissent. See id. at 244 ("By patching together bits and pieces of what might be termed quasi-suspect class and quasi-fundamental rights analysis, the Court spins out a theory custom tailored to the facts of these cases.").
149. See, e.g., Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 458-62 (1988) (using rational basis scrutiny because education is not fundamental right).
150. See id. at 465.
151. See id. at 458, 470.
152. See id. at 458.
153. See Biegel, supra note 114, at 1098 (asserting that Kadrmas facts were weak for plaintiffs seeking extension of Plyler reasoning).
154. Villaneuva v. Carere, 85 F.3d 481 (10th Cir. 1996); see also supra notes 15-22 and accompanying text.
155. See Alexandra Natapoff, 1993: The Year of Living Dangerously: State Courts Expand the Right to Education, 92 Educ. L. Rep. 755, 769-71 (1994), available in Westlaw, WELR database (arguing that state courts today are more likely to assume that their constitutions require independent analysis separate from federal constitutional interpretation).
156. See id. at 773; see also Peter Enrich, Leaving Equality Behind: New Directions in School Finance Reform, 48 Vand. L. Rev. 101, 105 (1995) (arguing that with exception of Plyler, Supreme Court has followed Rodriguez rationale and plaintiffs have had significantly more success exploring equity issues in state courts).
157. See Enrich, supra note 151, at 157 (claiming that only after Rodriguez repudiated equal protection arguments in property funding cases did plaintiffs turn to state constitutional arguments).
158. See generally Natapoff, supra note 150 (describing state court efforts to strike down education finance systems as unconstitutional).
159. See Note, The Limits of Choice: School Choice Reform and State Constitutional Guarantees of Educational Quality, 109 Harv. L. Rev. 2002, 2010 (1996) (collecting cases).
160. See Allen W. Hubsch, The Emerging Right to Education Under State Constitutional Law, 65 Temple L. Rev. 1325, 1343-48 (1992) for a list of all 50 such clauses. The clauses vary greatly in strength and wording, but all refer to the state duty to educate its citizens. See, e.g., Cal. Const, art. IX, § 5 ("The legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year.").
161. See Reed, supra note 109 at 596-97 (differentiating between "many" state courts that have found education to be fundamental right for purposes of equal protection analysis and "number of courts" that have found education to be fundamental right without reservation, therefore requiring strict scrutiny analysis under Equal Protection Clause); see also Natapoff, supra note 150, at 755-56 (describing plethora of state court actions in 1993).
162. See, e.g., Cal. Const. art. IV, § 16 ("All laws of a general nature have uniform operation.").
163. See, e.g., Matanuska-Susitna Borough Sch. Dist. v. Alaska, 931 P.2d 391, 396-97 (Alaska 1997) (describing state's use of sliding scale to determine scrutiny to be applied in accordance with right at stake); Idaho v. Avelar, 931 P.2d 1218, 1221 (Idaho 1997) (analyzing whether suspect class or fundamental right is invoked for purposes of applying state equal protection clause); Pauley v. Kelly, 255 S.E.2d 859, 878 (W. Va. 1979) (examining education funding systems under strict scrutiny because state equal protection clause requires such scrutiny for any fundamental right).
164. See Hubsch, supra note 155, at 1343-48 (summarizing state constitutional language); see also, e.g., Ark. Const. art. XIV, § 1 ("Intelligence and virtue being the safeguards of liberty and the bulwark of a free and good government, the State shall ever maintain general, suitable and efficient free public schools and shall adopt all suitable means to secure to the people the advantages and opportunities of education."); Ariz. Const, art. XI, § 1 ("The Legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system . . ."); Mich. Const. art. VIII, § 1 ("Religion, morality and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged."); W. Va. Const. art. XII, § 1 ("The legislature shall provide, by general law, for a thorough and efficient system of free schools.").
165. See Hubsch, supra note 155, at 1335-36 (giving examples of different education clauses and arguing that "the outcome of an education rights case may depend heavily on the language of the state constitution's education article").
166. See Reed, supra note 109, at 594-96 (citing Robinson v. Cahill, 303 A.2d 273 (N.J. 1973) and Seattle Sch. Dist. No. 1 v. Washington, 585 P.2d 71 (Wash. 1978) as cases where state courts struck down education funding systems using only education clause and not Equal Protection Clause).
167. See Hubsch, supra note 155, at 1336. Additionally, most states have followed the Supreme Court lead in determining that poverty is not a suspect classification. See id. at 1330.
168. This notion stems largely from language in the Rodriguez decision suggesting that the Texas system in question had succeeded in "provid[ing] each child with an opportunity to acquire the basic minimal skills necessary for the enjoyment of the rights of speech and of full participation in the political process." San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 37 (1973); see also Biegel, supra note 114, at 1084-85 (arguing that Powell's language in Rodriguez was picked up by Rehnquist in later cases); John A. Nelson, Adequacy in Education: An Analysis of the Constitutional Standard in Vermont, 18 Vt. L. Rev. 7, 16-17 (1993) (describing benefits of using adequacy standards as guide for education funding).
169. 255 S.E.2d 859 (W. Va. 1979).
170. See id. at 878.
171. See id. at 869-74.
172. See id. at 878. The court melded analysis of the state's education clause with the state's equal protection clause. However, the equal protection examination hinged on the status of education as a fundamental right rather than equality of funding. See id.
173. 488 S.E.2d 249 (N.C. 1997).
174. See id. at 255.
175. See id.
176. 851 S.W.2d 139 (Tenn. 1993).
177. See id. at 140-41.
178. Id. at 156.
179. 692 A.2d 384 (Vt. 1997).
180. See id. at 395-96.
181. See id. at 397.
182. See id. at 390.
183. See, e.g., McWherter, 851 S.W.2d at 148 (asserting that "decisions by the courts of other states are necessarily controlled in large measure by the particular wording of the constitutional provisions of those state charters regarding education"). 179 For a more thorough treatment of state constitutions and school choice programs see generally Note, The Limits of Choice, supra note 154 (arguing that state constitutions' provide protection against deterioration of schools due to school choice programs).
184. See id. at 107 (arguing that Rodriguez is based largely on absence of explicit education provisions in federal Constitution, while state constitution contains express provisions); see also Hubsch, supra note 155, at 1331 ("Each state supreme court that has considered the issue . . . has rejected the Rodriguez test as inapplicable to equal protection under its state constitution.").
185. 85 F.3d 481 (10th Cir. 1996).
186. See id. at 483.
187. See id. Plaintiffs argued discrimination because the school closures resulted in overcrowded classrooms at the students' new schools and because the Board failed to consider the quality of educational programs at the old schools before deciding to close them. See id. at 486.
188. Virtually all enabling acts have similar provisions favoring those already enrolled and their siblings. See, e.g., Ariz. Rev. Stat. Ann. § 15-184 (West Supp. 1997).
189. Of all state enabling acts reviewed, none contained specific requirements for amount or method of information distribution. Many failed to even mention the need for information disbursement. None provided funds specifically for the purpose of informing prospective parents.
190. Minn. Stat. Ann. § 120.064 (West Supp. 1998).
191. Milwaukee's school choice program provides vouchers for students to attend private schools and allows parents to choose among all district schools. See John F. Witte, Who Benefits from the Milwaukee Choice Program?, in Fuller & Elmore, Who Chooses? Who Loses?, supra note 93, at 118, 118-19. Even within disadvantaged groups, though, "choosers" (those students who participate by selecting a nonneighborhood school) and "nonchoosers" (those students who remain in the same school as before the choice program) may be further stratified by family income and education level.
192. See Richard F. Elmore & Bruce Fuller, Empirical Research on Educational Choice: What are the Implications for Policy-Makers?, in Fuller & Elmore, Who Chooses? Who Loses?, supra note 93, at 187, 189-90. Even though charter schools frequently target minorities and poor families, without extensive recruitment efforts these groups may subdivide, allowing the families with more education and information access to charter schools, while others remain in the standard public schools.
193. See Finn et al., supra note 31, at 19 (describing charter school locations).
194. See Paulette Bolyard, Church, School Trade Favors, Ariz. Repub., Aug. 10, 1996, at 4 (describing charter school based in community church).
195. See, e.g., Telephone Interview with Liang, supra note 55. Ms. Liang indicated that she received many inquiries about the school from prospective parents, but when she informed them of the school's location in a low-income neighborhood in South Phoenix, many parents balked. Neighborhood parents were generally less educated about charter schools and were somewhat wary of educational ventures that deviated from the mainstream. The school was forced to recruit door-to-door in an effort to fill its spaces. See id.
196. See Cleveland, supra note 1, at 133 (dismissing choice opponents' concerns as reflecting "paternalism").
197. See Biegel, supra note 20, at 1540 (arguing that transportation and restrictive admissions procedures are biggest obstacles to equal access in school choice programs). Biegel focuses almost exclusively on Title VI challenges, an area outside the scope of this Note. However, the material is useful both to legislators seeking to improve state enabling acts and to prospective plaintiffs. The lack of transportation funds is a potential source of litigation within the charter school movement.
198. See, e.g., Telephone Interview with Liang, supra note 55. Arizona provides a set per-pupil transportation budget. The amount given was higher in past years, but the state recently discovered that some schools were spending less money and keeping the difference, and therefore reduced funding. See id. Liang's school, Tertulia, uses a single van for transportation, and the lack of adequate transportation funds is one of the school's biggest problems. Id.
199. 457 U.S. 202 (1982).
200. See id. at 229.
201. Id. at 222.
202. See supra Part II.A.2.b.
203. See supra notes 114-15 and accompanying text.
204. See, e.g., Kan. Stat. Ann. § 72-1906(d)(2) (1997) (stating that "pupils in attendance at the school must be reasonably reflective of the racial and socio-economic composition of the school district as a whole"); see also Ariz. Rev. Stat. Ann. § 15-184(B) (West 1997) ("[A] charter school shall not limit admission based on ethnicity, national origin, gender, income level, disabling condition, proficiency in the English language or athletic ability."). Charter schools also must comply with court ordered desegregation.
205. See supra notes 118-19 and accompanying text.
206. See San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 2 (1973).
207. See Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996) (rejecting plaintiffs' argument that school district classification of at-risk students created suspect class). In any case, arguing that "at-risk" students are a suspect class seems more likely to succeed when schools are failing to provide equal access to these students rather than specifically reserving spaces for such students. 203 See Biegel, supra note 20, at 1557.
208. See supra notes 125-27 and accompanying text.
209. The Tenth Circuit expressed concern with first-come-first-served policies. See Villanueva, 85 F.3d at 488 n.3. The court also noted that Congress shared this concern, as indicated in its requirement of lottery-based admissions for the federal Charter Schools Act. See id.
210. Telephone Interview with Liang, supra note 55. When Tertulia was first granted a charter by the state, Ms. Liang received calls from parents who had checked State Board of Education listings and listings in a parent magazine. Typically, these parents were of moderate and upper incomes and were uninterested in the school upon learning of its prospective location. See id. 207 States with no overall policy typically require the schools to explain their admissions criteria in the charter application. See, e.g., Cal. Educ. Code § 47605(b)(8) (West Supp. 1998) (stating that charter school applications shall include "[a]dmission requirements if applicable"); Colo. Rev. Stat. Ann. § 22-30.5-106 (West 1995) ("The charter school application shall be a proposed agreement and shall include . . . [a] description of the charter school's enrollment policy . . . ."); R.I. Gen. Laws § 16-77-4(b) (1996) ("The application shall . . . [d]escribe enrollment procedures including the nondiscriminatory criteria for admission in accordance with applicable state and federal law, along with a program to encourage the enrollment of a diverse student population . . . ."); Wyo. Stat. Ann. § 21-3-203(b)(viii) (Michie 1997) (charter school applications shall contain "[a]dmission requirements, if applicable").
211. See, e.g., Alaska Stat. § 14.03.265(b) (Michie 1996) ("If it is not possible to accommodate all eligible students who submit a timely application, students shall be accepted by random drawing."); Del. Code Ann. tit. 14, § 506 (1996) ("A charter school shall not . . . [r]estrict student admissions, except by age and grade, or by lottery in the case of over-enrollment . . . ."); III. Comp. Stat. Ann. § 105 5/27 A-4(h) (West 1997) ("If there are more eligible applicants for enrollment in a charter school than there are spaces available, successful applicants shall be selected by lottery."); N.J. Stat. Ann. § 18A: 36 A-8 (West 1997) ("If there are more applications to enroll in the charter school than there are spaces available, the charter school shall select students to attend using a random selection process.").
212. See 20 U.S.C.A. § 8066(1)(H) (West Supp. 1998) (mandating that charter schools "admit[] students on the basis of a lottery, if more students apply for admission than can be accommodated").
213. All enabling acts studied granted express preference to students previously enrolled in the school and also to siblings of these students.
214. See Biegel, supra note 20, at 1582.
215. See Finn et al., supra note 31, at 72. At least one charter school has already been closed by California. See id. Advocates argue that this is positive - charter schools must reach their goals or be shut down. They will not be allowed to remain open and commit "educational malpractice." Id.
216. Charter school advocates would argue that schools will be judged based on their adherence to their stated charter goals. Therefore, schools that serve disadvantaged groups will be measured based on improvements of their students, not against an external standard.
217. See Ellen Williams, Annual Survey of Texas Law - Education, 49 SMU L. Rev. 901, 918 (1996). While most enabling acts prohibit admission based on past academic performance, they generally do not contain provisions based on past behavior. See, e.g., Colo. Rev. Stat. Ann. § 22-30.5-106 (West 1995) ("Admission to a school shall not be determined solely on academic abilities or achievements.").
218. Many states do not mention admission criteria directly, or have only vague provisions in their enabling acts. See, e.g., R.I. Gen. Laws § 16-77-4(10) (1996) (requiring school admissions plans to be "reflective of the student population of the district").
219. The charter school at issue in Villanueva had a requirement of 18 hours of community service to the school and a requirement of parent attendance at mandatory meetings. See Villanueva v. Carere, 85 F.3d 481, 484 (10th Cir. 1996). 217 See Telephone Interview with Liang, supra note 55. Tertulia has a parent contract, but it has gone largely unutilized during the school's first year of operation. However, Ms. Liang intends to implement parental involvement programs more vigorously next year and knows of other charter schools with similar contracts. See also Biegel, supra note 7, at 29 (describing plans of Palisades charter school to require parental involvement). The parental involvement requirement at Palisades was scaled back for secondary students after intervention by the Mexican American Legal Defense and Educational Fund and the NAACP, though the elementary level still will have mandatory parent involvement. See id.
220. The ambiguous wording dealing with such issues as student recruitment, admissions, transportation, and funding give too much control to individual schools. The charter school movement is designed to create autonomous local schools, but the state acts fail to guarantee even basic minimum standards in these areas. See supra notes 191-93 and accompanying text.
221. Most enabling acts have a preamble stating the purpose of charter schools. See, e.g., CaL. Educ. Code § 47601 (West Supp. 1998) ("It is the intent of the Legislature [to] . . . [i]ncrease learning opportunities for all pupils, with special emphasis on expanded learning experiences for pupils who are identified as academically low achieving.").
222. See supra Part II.
223. See supra notes 61-66 and accompanying text.
224. See Fuller & Elmore, Who Chooses? Who Loses?, supra note 93, at 187, 196.
225. See id.
226. See Angela G. Smith, Public School Choice and Open Enrollment: Implications for Education, Desegregation, and Equity, 74 Neb. L. Rev. 255, 270 (1995) (describing features of effective intradistrict choice programs).
227. See id. at 271.