Charter School Constitutional Funding Challenges: North Carolina and Texas May Serve as Harbingers for the Future

Introduction

Presently, charter schools exist in 43 states.¹ The Minnesota Legislature first created charter schools in the United States in 1991.² As of 2018, there were nearly 7,000 charter schools in 43 states serving over approximately 3 million students.³ The creation, control, and mission of these schools varies from state to state. Charter schools were created by state legislatures for a variety of aspirational purposes including allowing alternatives to the traditional school structure, allowing competition to the public education model, allowing more choice for parents, increasing academic achievement, as well as, at least in some instances, an opportunity to decrease the influence of teacher unions. In many instances, state statutes specifically allow a variety of agencies, i.e., local school districts, municipalities, universities, or other entities to create charter schools. Additionally, proponents have argued that such schools, particularly in the large urban inner cities, offer a choice mechanism to the failing traditional public schools. In some instances, for-profit entities may also operate charter schools.

This analysis examines the state court challenges regarding the funding of charter schools across the nation within the last several years with specific examination regarding charter school suits which have constitutionally challenged the distribution of state and local moneys. Often, these inequity/inadequacy constitutional claims are somewhat similar to traditional public school challenges regarding the mechanisms of distributing state fiscal assistance to public schools. While these constitutional challenges are highly state specific, they all share commonalities regarding alleged inaccessibilities to particular funds in a manner which the charter schools claim to be a violation of the state constitution. Similar to traditional claims of fiscal equity and adequacy, the charter school claims generally argue that the students and parents did not forfeit any constitutional protection by availing themselves to these alternative and innovative charter schools.

This analysis discusses the logic, as well as the courts’ opinions, in upholding or denying the charter school claims. Particular attention is focused on the most recent cases from North Carolina and Texas wherein charter schools empirically and constitutionally argued that the distribution formula, as applied to charter schools, was constitutionally flawed as well as the claims of constitutional infirmities regarding the funding of charter schools. The constitutional challenges from North Carolina and Texas illustrate the complexity and substance of the questions before the state courts. In both instances, the courts had to examine the accounting structures as well as the broad educational clauses found within the state constitutions. In these two particular instances, one could argue that at least some of the issues left to the courts were due to the overly broad aspirational language of the controlling statutes as well as, at least in some occurrences, the inarticulation of the statutes in question. Several other recent cases are shown that reflect similar challenges based on a variety of constitutional theories and statutes.

Overview of charter schools

Charter schools are generally opened and operated by private or public entities that are governed by private boards. The 43 state legislatures that have authorized charter schools have varying processes for authorizing these schools. Conceptually, they are, as a public policy, viewed as public schools with various levels of autonomy. Generally, as long as charter schools meet state standards of safety, health and welfare, accounting regulations, as well as state achievement goals, they are allowed to operate. The manner of operation, the scope, and the admissions at these schools, generally along lottery procedures, vary from state to state, with a wide array of policy options and considerations.

Charter schools, being largely of recent origin have emerged from legislatures over time, in a variety of organizational structures guided by a variety of statutes. Perhaps, more interestingly is the fact that many charter schools operate under very specific state guidelines, while in other states charter schools operate with minimalistic statutory guidelines. Thus, it is common to observe that while traditional public elementary and secondary schools, within the traditional school district model, operate in a highly-regulated mode, charter schools generally do not. As a result...