Chapter 3 : Flexibility

The decision to allow charter schools to open in a particular state begins with the crafting of legislation required to authorize them. Charter school laws come into existence through the political process and reflect the overall political climate in the state, including its current educational policies (e.g., standards and accountability), as well as the input of many interest and advocacy groups. These laws usually define the general purpose of schools, the absolute number of schools that can open, who can operate them, what agencies can sponsor them, how charter schools will be funded, and expectations for how to evaluate their success. There is tremendous variation in the ways in which states have come to the task of authorizing charter schools through legislation, and previous research has suggested that states can either encourage or discourage charter schools and charter school growth through their legislative approach (Berman et al., 1998; Jennings et al., 1998; Hirsch, 2000).

The legislative landscape is also constantly changing as new states enact legislation and existing laws are amended. The 1998 reauthorization of the federal Public Charter Schools Program explicitly established priority criteria for awarding grants with the intention to promote greater flexibility (and accountability) in new and amended state charter school laws. These priorities included: increasing numbers of high-quality charter schools, additional types of authorizing agencies besides LEAs, broad autonomy over fiscal matters, and periodic reviews. Although few state policies have been changed in direct response to PCSP priorities, many state laws are moving in directions that the U.S. Congress encouraged in the charter school amendments. As states reevaluate charter school laws over time, an overall trend has been to expand the types of agencies that can award charters or to loosen limits on the numbers of charter schools (Hirsch, 2000).

Local boards and state boards of education are most frequently permitted to grant charters; however, many other types of agencies?e.g., universities and colleges, independent chartering boards, and municipal governments?are also involved in chartering. As Exhibit 3-1 indicates, states allow a diverse set of agencies to award charters to charter schools. For example, approximately one-fifth of states with charter legislation permit universities and colleges to authorize charter schools. County boards, municipal governments, intermediate districts, and chief state school officers are also represented in this group of charter school authorizers.⁷

Over the last few years, several states have even expanded the types of agencies that are permitted to charter in the state. For example, Minnesota has added private colleges to an already diverse list of charter school sponsors. Wisconsin authorized the creation of charter schools by the common council of the City of Milwaukee (the Mayor?s office), the chancellor of the University of Wisconsin-Milwaukee, and the Milwaukee Area Technical College in the Milwaukee school district. Massachusetts, which previously had allowed only new charter schools sponsored by the state, amended its law and created Horace Mann charters?converted public schools that must receive approval by the local school district and teachers? union before applications are sent to the state.

The diversity of types of agencies is also represented in the different relationships and processes established for chartering. Appendix L describes in greater detail a way of grouping some of the interrelationships created by state legislative provisions regarding who can grant charters.

Finding: Although caps on the number of charter schools have been an obstacle to charter school growth in some states, the overall trend is to loosen or expand these limits over time.

Formal caps on the numbers of charter schools are an interesting political indicator of a state?s willingness to engage in charter school reform. Some states are clearly more cautious than others in the number of charter schools they allow. However, over the last few years, legislative trends have pointed in the direction of lifting caps in several states. Since 1997, at least 10 states have made adjustments to caps by increasing the number, lifting a cap entirely, or removing expiration (or "sunset") provisions on charter school legislation. In addition, respondents in states that have caps frequently cited attempts that have been made to raise or eliminate them. This trend began, in some states, even before the federal reauthorization of the Public Charter Schools Program, which now places a priority on grants to states with legislation that encourages increasing the number of high-quality charter schools. Policy analysts argue that these shifts might indicate that some of these states have moved from the "experimental" phase to viewing charter schools as an accepted part of the educational reform landscape (Hirsch, 2000).

Almost one-third of states (12) with charter legislation have no cap on the numbers of charters that can be opened.⁸ Another 42 percent have an overall statewide cap or regional restrictions that add up to a statewide cap. The remaining 10 states (26 percent) either have (a) caps by type of authorizer or type of school or (b) annual caps overall in the state, by type of authorizer or type of school. For more detail on types of caps across states, please refer to Appendix M.

Some states with types of caps other than total statewide caps also have the largest number of charter schools in operation, such as Arizona with 273 charter schools, Texas (173), Michigan (175), and North Carolina (92). Puerto Rico (81) and Colorado (68). At the same time, certain high-incidence states, like California and Florida, do have total statewide caps, but they are very high or have been expanded over time. California waived its original caps on both the total number of schools statewide and the number of schools chartered by a single school district, and the legislature ultimately raised the cap to 250 in 1999, increasing automatically by 100 every year after that.

In most of the states with total statewide caps in place, there appears to be opportunity for future growth in the charter school population. Exhibit 3-2 shows those states with total statewide caps alongside the number of charter schools in operation as of September 1999. In at least two of these states (Massachusetts and Louisiana), additional increases may be authorized in upcoming legislative sessions, as a result of legislative amendments.

On the other hand, though statewide caps may seem to be the most restrictive, caps on numbers of charters permitted to be chartered in a specific region or by a particular authorizer could prove to be as much of an obstacle to a potential charter applicant. For example, Michigan?s cap applies only to universities, but the universities have been the most active charter school authorizers in the state. In other states with regional limitations, caps applying to certain areas have already been reached. The Illinois charter law, for example, capped Chicago at 15 charter schools, and that limit has already been reached. The SRI telephone survey of charter school authorizers indicated that these respondents were aware of caps under their state laws, how caps have been implemented, and what caps mean for their own activities. Local implications and perceptions of state caps vary considerably, even within the same state. Some saw their states? caps as absolute (which were usually accurate perceptions); others understood that there was some flexibility in how state caps were implemented. One district administrator said that her state "can transfer allotments [of allowable charters] from other regions [of the state] if needed elsewhere." A few respondents, particularly in state-level charter school authorizers, indicated that changes in their state laws had affected their own volume of chartering.

Exhibit 3-2

STATES WITH STATEWIDE CAPS AND NUMBER OF CHARTERS OPENED*

A majority of states allow charter schools significant freedom from rules and regulations, which, in many cases, is greater than that allowed other public schools. State charter laws and policies usually address how other state laws are waived for charter schools. The Year 1 telephone survey of state charter coordinators included items that asked respondents to characterize the waiver options for charter schools.

Half of the states provided charter schools with automatic waivers of state rules and/or regulations (see Exhibit 3-3). This typically meant that charter schools were freed from most state and district regulations, with a few exceptions (federal regulations, health and safety rules, and civil rights laws in many cases; also insurance, state testing, compulsory attendance, minimum age requirements, and desegregation requirements in a few others).

Four states did not allow state laws to be waived at all (but may have permitted limited waivers of other policies and regulations).

Fourteen other states permitted waiver requests and/or waivers negotiated with the charter school authorizer. In states where waiver of regulations is left to a negotiation process, the amount of freedom realized by a charter school may depend on the charter school authorizer?s orientation to and relationship with charter schools.

Finding: In general, state charter school policies do not exempt charter schools from state student assessment or budgeting/auditing requirements. Charter school authorizers, on the other hand, reported that charter schools have considerable autonomy over key aspects of their programs.

State charter coordinators were asked to indicate whether their state laws permitted certain freedoms to all, some, or no charter schools. Respondents were also asked whether noncharter schools were eligible for these freedoms. As Exhibit 3-4 displays, state charter school coordinators reported that freedoms granted to charter schools are least common when fiscal requirements and student assessment are involved.

The fact that charter schools do not have much freedom from state budgeting and audit regulations or from student assessment requirements reflects the expectations for all public schools. That is, institutions that receive public funds and produce a public good (i.e., educated students) should be accountable for the use of resources and the results of the educational process. Although charter schools represent a growing effort to rethink accountability, they remain public schools, and the agencies that sponsor them retain many of the same monitoring responsibilities that have always been in place.

Compared with the limited flexibility on state assessments and budget/auditing requirements, greater flexibility is apparent in domains related to teacher preparation and collective bargaining agreements, where equal numbers of states grant or deny the freedoms. These freedoms may seem relatively modest, particularly because of the charter movement?s emphasis on deregulation. However, it does appear that charters enjoy considerably more freedoms than other public schools, even when these other schools are eligible for such freedoms by waiver.

Data from the charter school authorizer survey appear to tell a slightly different story about charter school freedom and control. Exhibit 3-5 suggests a high degree of control by charter schools over key areas, including purchasing, staff salaries and benefits, and other budgetary expenses. These findings must be interpreted with care, since the two surveys asked these questions in different ways. However, the difference in perspective between charter school authorizers and state charter school coordinators is part of the diversity of the whole movement. There are other areas where charter school authorizers reported that charter schools have less control (e.g., assessment and student admission policies).

The variation in perceptions of charter school autonomy within the sample of charter school authorizer respondents and the differences between charter school authorizers and states make it difficult to generalize about the extent to which charter schools are really exempt from the requirements that regular public schools face. On the other hand, as a piece of the flexibility-accountability debate, it is clear that the charter movement has generated significant diversity in the application of the principles of local control?variation that could, in turn, be an interesting factor in explaining the success or failure of certain schools.

Data from the charter school authorizer survey permitted a deeper look at the idea of control or autonomy. On the basis of the Year 1 responses, it appears that the extent to which charter schools have control over decisions and policies is closely linked to the type of agency that charters them. Exhibit 3-6 shows a pattern of a greater degree of control at the individual school level when sponsors are not local school boards, school districts, or county-level bodies.

* The mean scores were based on converting responses to a 3-point scale with "all" equal to 3, "some" equal to 2, and "none" equal to 1. "Other agency" includes state board or agency, institution of higher education, and other types (e.g., independent chartering board).

⁷ The range of types of charter school authorizers nationally was reflected in the Year 1 sample. The sample included a large majority of local educational agencies (n=34), some state entities (n=8), a few institutions of higher education (n=3), and independent boards or municipal entities (n=3).

⁸ This statistic is consistent with data reported in the fourth-year report from the National Study of Charter Schools (Nelson et al., 2000, p. 12).

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Chapter 2

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Chapter 4