Failing Charter Schools: Victims of Unfair Regulation or Blights on Public Education?

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There are many who argue that a school like Jefferson Academy is the last thing any kid needs.

There has been a nationwide push for the automatic closure of failing charter schools, and Lisa Graham Keegan -- she served as Arizona Superintendent of Public Instruction from 1995 to 2001 and now is chair of the National Association of Charter School Authorizers -- has been one of the driving forces in the state.

When a charter school doesn't close right away, kids are doomed to spend another year in a failing school, Keegan says.

"It's just unacceptable. It's a death sentence, academically. They're not being educated," she says. "There is just no other conclusion to come to."

Keegan testified in March before the U.S. House Committee on Education and the Workforce about the need to "make the very tough decisions to close failing charter schools." She testified that 206 failing charter schools were closed across the country in 2013 alone.

Referring to Arizona's charter school movement, Keegan told the committee: "The big divide in our education system is not between charters and district schools -- it is between schools that are excellent and those that are not."

Keegan floated a measure earlier this year in the Arizona Legislature that would have streamlined the process of closing failing charter schools. Instead of the lengthy proceedings that schools like Jefferson Academy currently are entitled to, Keegan's proposal would have limited a school's right to challenge its closure to only one limited notion: whether the school truly deserved an F grade.

In doing so, Keegan's measure would have drastically reduced the length and scope of the hearings and appeals process, effectively expediting the closure of F-graded charters.

Keegan's proposal has national precedent. With few exceptions, charter advocacy groups tend to support automatic closure laws.

Nina Rees, president and CEO of the National Alliance for Public Charter Schools in Washington, D.C., says that though closing a school can be a difficult thing to do, education advocates have to be willing to make "tough decisions" in order to set a high standard for charters.

California, Florida, Indiana, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Texas, and Washington all have mandates dictating the automatic closure of low-performing schools.

But even strict state laws do have catches.

Education experts often cite Ohio as having the toughest automatic closure laws on the books, requiring schools that underperform for two out of three years to be shut down. Under Ohio's law, charter school boards are held responsible for a school's academic and financial performance, and they are placed on a closure list when a school doesn't measure up. But many schools are helmed by charter management organizations, often for-profit companies that run the day-to-day operations of schools. And in Ohio, there is no punitive action taken against such organizations.

"Avoiding Accountability," a 2013 report by the research organization Policy Matters Ohio, found that charter management organizations were able to skirt state laws and keep open at least eight failed charter schools, sometimes under new names but often in the same locations as shuttered schools and with much of the same staff.

Loopholes aside, some argue that such hard and fast closure policies should not exist in the first place.

Jeanne Allen, president of the Center for Education Reform, a Washington, D.C.-based charter advocacy group, told Education Week that she cautions states against creating "one-size-fits-all formulas" for charter closures.

"It flies in the face of what charter schools should be," she says.

Allen said charter authorizers need to be held to high standards for assessing schools but also must "actively understand the context of each school."

The Stewarts say the Arizona board has failed to understand Jefferson Academy's context: its unique student population, the improbability that many students will excel on the state's assessment test, and the great things the Stewarts say they are achieving with these kids regardless.

Leo Condos, the Stewarts' attorney, agrees with that view. "In a system that's created to be alternative, we're finding it hard to put a round peg into a square hole," he says.

In the end, Keegan's attempt to simplify the administrative procedures that drag out the closing of failing Arizona charters was unsuccessful. Perhaps her measure wasn't appealing to the lawmakers who have spent decades focused on crafting the pro-charter laws that have earned this state a top spot in national charter school growth and student attendance rankings.

So for now, shutting down failing charter schools remains a task that takes time.

DeAnna Rowe, executive director of the State Board for Charter Schools -- the organization pushing for Jefferson Academy's closure -- says her board explored the idea of automatic closure during the last legislative session, when Keegan raised it. The board never took an official position, but Rowe agrees that the current nature of legal proceedings greatly slows the process of shuttering failing schools.

After three years of D grades, schools like Jefferson still can exercise their right to a hearing before an administrative law judge and are even entitled to a subsequent appeal.

"It's a lengthy process and a labor-intensive process because the board has the burden of proof," Rowe says. The board's small staff must collect and explain all evidence that supports the closure of a school, which includes gathering written material, conducting site visits, and testifying at hearings.

"People wonder why this happens," Rowe says. "Why are these schools allowed to remain open? They wonder, with these schools having a history of poor performance, shouldn't there be a way to more quickly close the schools and require the parents of these students to make a different choice?"

For Rowe, these rhetorical questions have a fairly concrete answer: There simply aren't enough hands.

At the same time as it handles closure proceedings, the board's eight employees -- that number includes Rowe -- also have to ensure that the state's 500-plus charter schools are complying with all financial, legal, and academic expectations.

Arizona's numbers are fuzzy, but since 2001, Rowe says at least 235 in-state charter schools have closed. The reasons for closure range from forced shutdowns to school relocations to changes in management, so it's hard to determine just how many were forcibly closed.

Rowe says it took the board about a year to process five charter school closures last year, and all but one -- Jefferson Academy -- eventually shut their doors.

It's unclear how long it will take for the board and its skeleton crew to work through all of this year's F-graded schools.

Rowe feels some sympathy for schools like Jefferson, but with limitations. She says she's heard parents testify in court on behalf of schools undergoing closure proceedings, often arguing that such schools make their child feel safe, comfortable, or happy.

"Those kinds of things create a positive environment," Rowe says, "but if you don't have adequate materials, if you don't have quality teachers, and if you don't have a curriculum that's delivered so that students can demonstrate proficiency in state assessments, it doesn't matter how happy the students are. The school is required to provide a learning environment where pupils can improve."

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Monica Alonzo and Ashley Cusick