From the Mailbag: Is Charter Legislation Inconsistent with Democratic Control of Schools?

One of the most challenging aspects of charters and choice that our society is struggling with are the potential incompatibilities with democratic and community control of schools. Last year NEPC recently released a report entitled  Democracy Left Behind: How Recent Education Reforms Undermine Local School Governance and Democratic Education.  I previously discussed the brief in context of Community-Based Accountability. However, i think the brief also has important implications for school choice.

The NEPC press release stated:

“Local control” has been a bedrock principle of public schooling in America since its earliest days, but a new report concludes the concept “has all but disappeared” in discussions of education policy.

The report, Democracy Left Behind: How Recent Education Reforms Undermine Local School Governance and Democratic Education, by Kenneth Howe and David Meens of the University of Colorado Boulder, examines the impact on democratic ideals of vanishing local control over education…

In a healthy democracy, schools play a key role in preparing citizens.  A healthy democracy also depends on citizens engaged in democratic governance. And since schools sit at the center of most communities, local democratic control over schooling has long been highly valued in the United States.

Howe and Meens describe local control as “the power of communities, made up of individuals bound together by common geography, resources, problems and interests, to collectively determine the policies that govern their lives.” As regards schooling, this typically refers to control by elected school boards and their constituents.

The same is true of the reform policies that have been advanced by President Obama and Education Secretary Duncan. “Despite Obama and Duncan’s rhetorical support for greater local control of schools, the reform instruments that their policies are based on are clearly antithetical to it,” the authors write.

Howe and Meens explain the importance of a balance between local control and federal and state regulation. In a democracy, there is a presumption of local control, which may be overridden when it has undemocratic consequences, as in de jure segregation. But such a justification does not exist for the recent federal education policy take-over.

They conclude with a series of recommendations. One of them was specific to charter schools and choice:

Curtail the privatization of public education resources. Instead, build up democratic values by holding schools receiving public funds accountable to the public through democratically elected school boards and other democratic institutions.

Is democratic control of our schools threatened by proposed charter legislation? A reader who wishes to remain anonymous wrote the follow about SB2, the latest proposed charter school bill in Texas.

Dr. Heilig,

I am concerned regarding proposed changes to the Texas Open Meetings law contained in SB2.  SB2 is ostensibly an education bill concerning charters however it proposes certain changes to the open meetings laws to be carried out by the Commissioner of Education, by rule.I believe these changes are contrary to the intent and purpose of promoting open government.  I have attached a copy of the version now being modified by the House committee.  Key provisions in the original Senate version however are unchanged.The text of the Bill is highlighted beginning on page 8 of the attached version of the Bill.

Below are some comments regarding the effect of these changes.

Section 11: Amending applicability of the Open Meetings Act

The amendments are a blow against transparency and the Texas Open Meetings Act.  The amendment purports to amend Section 12.1051 of the Education Code as it applies the Texas Open Meetings Act (the Act) to Texas charter schools.  Existing charter schools have been able to comply with the Act intended to provide for transparency in public school operations.  This amendment would definitely stifle the public’s ability to become involved with and to seek redress from charter school boards. The amendment is internally inconsistent with itself and with existing law, as follows:

  • The amendment to TEC § 12.1051(c) would change the public notice requirement under the Act from 72 hours to 48 hours.  However, the amended TEC 12.1051(d)(1) provides for meeting notice subject to the applicable requirements of meetings, and that requirement is 72 hours.
  • The amendments would add language at 12.1051(c) requiring posting on a charter school website.  But, Texas Open Meetings Act already requires this for school districts and by extension of existing law for charter schools—this amended language is duplicative of existing law.
  • The amendments create a special exception for charter schools to conduct meetings by telephone conference or videoconference—even when a quorum is not gathered physically at one location.  While video-conferencing is currently permitted under the Act, still, a quorum must be present in at least one location.  The amendments as written would permit, for certain open-enrollment charter schools only, an entire meeting to occur, by video or telephone, at a location or locations where no directors of the board are gathered together.

This would stifle the ability of the public to seek remonstrance before the board, as is the non-delegable duty of a charter school operating board. Moreover, such license to virtually meet in such a manner, without even identifying a reason or motive, would conflict with the very purpose of the Act.

These concerns likely outweigh the inconvenience created by the Act itself—which is a necessary balance between public transparency and openness with convenience to the board.

  • In direct conflict with years of Attorney General and judicial interpretations of the Act holding that the board members must be physically in Texas and accessible to the public, the above item, for no reason offered, would permit certain charter school board members to be out-of-state when they are calling-in or videoing in to a meeting.

Overall, the amendments have the Commissioner of Education adopting rules controlling the Texas Open Meetings Act, when traditionally the Act is controlled by and regulated by the Texas Attorney General.

Page 5 of the attached version of SB2 also would create other changes which would be new and novel in the context of school boards.

Sec. 12.1011.  CHARTER AUTHORIZATION FOR HIGH-PERFORMING ENTITIES.   The amendment to the law being proposed would provide for a corporate entity to be a member of the charter holder  (school) board, with the power to replace other members of the board.

I learned about HB2414 this morning and reviewed that bill.  It apparently extends the concept of videoconference meetings even further.  Government bodies covered by this act would no longer be required to have at least a quorum gathered at one location.  It appears you could have a meeting of such governmental body with no board members actually being present in the geographic area that body represents.  I assume that such members need not be present in the state in order to meet.  I have not received clarification on this last point from the bill’s sponsor.

Are these proposed changes for charters inconsistent with democratic control of schools? The common refrain is that parents “vote with their feet.” Is that truly democratic control of school, choosing to spend your money at Walmart or Target, or is that a market mechanism masquerading as democracy?

Meta questions: Why do “reformers” seek to codify seemingly anti-democratic provision into law? Do charters and the school choice movement have to conflict with the American tradition of democratic control of schools?

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  • When I worked for a charter out of Hesperia, CA there were glaring differences between what I saw there and my experience in a public school. First, when I was hired there was no board approval, only the principal’s. Secondly, the school was in Stockton,CA and the chartering district was 300 miles away in Hesperia. The local families had no way to attend board meetings. Thirdly, there were fire safety violations, and no proceedures for other emergencies. I had over forty high school students, I taught all scheduled classes (6), there were no materials, students on probation, and students who should have had IEP, or 504’s. The only democracy to the situation was that the parents had an alternative to their local public school. Other than that the civil rights of these students was infringed upon.


  • Monty J. Thornburg

    Jon: I really agree with you. But now with the Supreme Court and the “Citizen’s United” 5-4 decision, we can see just how divided ‘we’ are. The Presidential election, to some extent, was about questions corporations and democracy too. A slim majority, I think, agrees with you. None of it is settled yet, and yes, “education’ shines a light on this issue.


  • “Education” is just one of the lamp-posts under which we see a piece of a much larger problem.

    Pockets of corporate organization can exist in a democratic society. Indeed, they tend to thrive there.

    But a democratic society cannot survive in the pocket of a corporation.

    That is the real problem we face today.


  • Monty J. Thornburg

    Subsidiarity: Voice and Choice and the new “Libertarian” experiment in America.
    Our notions of “democracy” in America with respect to Education and “choice” of “charter schools” is very complicated and there isn’t room on this Blog to untangle the complexities. So, I’m going to attempt name some of the perplexing and contradictory issues as I see them. There are many questions.
    The complexities or the “perplexing and contradictory issues” are entangled within the shifting politics of our time and are now about the purpose of schooling in a global economy. Education is now entangled, for example, with notions of competition with other nations. Exxon-Mobile Corporation, for example, advertised on national network TV for a couple of months that: “We can solve this!” after showing dramatic graphs of American “test scores” being lower in Math and Science, as compared to those of other countries.
    Then, to add to the complexity, as pointed out here already, is the issue of the “re-segregation” of schools in parts of the South and elsewhere. Research shows that “charter legislation” is causing a “re-segregation” of schools along racial, ethnic, class, and ability social strata. These effects are in direct contradiction to previous goals, our 20th Century education history for “social justice” through education, i.e., Brown v. Board of Education. The hard fought for victories to eliminate “de-jure segregation” is now, it seems, being thwarted by “de-facto segregation” through the use of choice and charter school legislation. Notions about the role of schools to “socially engineer” (as some call it) economic and social opportunity are at issue here too.
    Then, there are the issues of “parent voice” and the “voices of professionals” and the “state” to decide what school(s) are best and for which children. Should the voice of the child (and parent) take precedence only? For example, should all children in effect be entitled to an IEP (Individual Education Plan) as “supposedly happens” for Special Needs Children, under ADA legislation? Should all families and children have an IEP, individual education plan or choice as has been legislated into NCLB based on AYP scores and testing? What is the role, and what “voice” should “teachers” and other professionals who provide education services have?
    And, what “voice” does the “state” have? And, at what “level” of voice (what power level), should state/community decisions be made? In our constitution, through the 10th Amendment, it is at the state level, (each of the 50 states) with the power to legislate “voice” and “choice” in America that charter schools and traditional public school legislation is made. ALEC and other lobby groups, teacher unions, state-wide charter organizations, school board associations, all weigh in on these decisions. Isn’t that democracy?
    At the Federal level there are economic incentives being offered, predicated on joining with the “Federal-Military Industrial Complex” to keep America strong so that we can out compete other countries in the preparation of our students for future jobs. It is rare to hear of education being about preparation for citizenship which was the purpose of public education in the minds of our founding fathers.
    Is “job preparation” the primary purpose of “public education” in America? Does the “civic” purpose of “public education” still have a “voice” at the table where curricular matters are decided? Is “local control” of education through district, county, “school boards” even “state school boards” i.e., does the concept of “Subsidiarity” have a role? What is and should be the role of universities and the granting of credentials for teaching, administering, “deciding” in schools? That is, does the notion that raises objection against the danger of the “state” i.e., Federal level or State-wide level, (of any one group) accumulating excessive power resonate in terms of our notion of democracy and education?
    Some people seem to believe in Libertarian notions and that only the “individual” should have voice and that government should have as little role as possible. Others still seem to believe in democratic notions and collective decision making through “compromise” and collective decision making through school boards and election processes in the “old” democratic American tradition of having elected officials decide things and run things.
    At present, and with economic “global competition” being viewed by corporate interests and others as a national problem, the Federal Government through the Department of Education is grabbing power, in my view. There is a shifting political power as to who decides about the voice and choice of parents, educational professionals and even whole states (the 46 states signed on to CC at this point) – and, on a large scale this is a political and democratic process that we are discussing on this Blog. Everything said, here, answers no questions but I hope points out the complexities that are being decided through political and democratic means.


  • In Charlotte, NC a recent report found that charter schools are significantly more segregated than public schools (almost by 100%). The key here is that the attendance is a result of parent choice – that is, “getting the school you choose, while giving up lessons on diversity”. I see diversity as encompassing racial, cultural, and individual learning differences.

    It is concerning that public monies are being shifted out of the public system to support de facto segregation. The passage of SB2 would not only result in an increase of charter schools, but also an increase in segregation, especially since many charters lack the resources/programs to serve the most disadvantaged students, including providing transportation and participation in the Free and Reduced Lunch Program.

    It appears this “[de facto] segregation [is the] result of [either] intentional policies -– or simply the byproduct of school choice”. Though what becomes even more problematic for a democratic education are the accountability mechanisms that perpetuate charters to teach to a test that’s based on a very thin level of achievement or risk having their charter revoked.

    Charter schools educate a selected few. Charter students are often told that “it’s a privilege to be here,” whereas public schools, which educate all children, hold the potential for a true democratic education.


  • It is not that charter schools, as originally conceived, are incompatible with democracy.

    It is that corporate governance is incompatible with democratic governance.


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