As we recently reported, the education world was set abuzz recently when the Supreme Court in the state of Washington ruled 6-3 that charters schools there are unconstitutional because they are not considered “common schools” and therefore, are not entitled to receive public funding.

Many have since commented on this decision.  Jeff Bryant being one of them.  He is a freelance writer in Chapel Hill, NC who edits the Education Opportunity Network.  During his 30-year career Jeff has done work for the Corporation for Public Broadcasting, the Smithsonian Institute, Siemens, Xerox and Kimberly-Clark.

Below are excerpts from his article, Court’s Ruling Charter Schools Aren’t “Public” Is No Surprise.

To critics of the charter school sector, the very idea of calling charter schools “public” schools makes about as much sense as calling defense contractors “public” companies. The fact these entities get taxpayer money does not mean they are “public.”

For years, education law and finance scholars have warned that the legal status of charter schools is on shaky ground. In 2012, Rutgers University professor Bruce Baker asked, on his personal blog, “Charter Schools Are… [Public? Private? Neither? Both?].”

Baker notes, first, that charter schools differ from public schools, in most statutory law, because they are limited public access. Unlike public schools, charter schools “can define the number of enrollment slots they wish to make available … admit students only on an annual basis and do not have to take students mid-year, [and] set academic, behavior and cultural standards that promote exclusion of students.”

These points of difference between charter and public schools are glaringly obvious in the neighborhoods where charters are common. Those who protest charter school expansions in their communities note how charter schools use lotteries to limit the number of students in their schools while public schools are frequently overcrowded. Charter schools are often criticized for not “back filling” and taking in new students mid-year as empty seats become available. And charter schools are notorious for enforcing student behavior codes that lead to frequent discipline violations and increase suspension and expulsion rates.

Baker found that in their authorization, governance, and operation, charter schools are frequently exempted from requirements public schools have, such as open meeting laws, disclosure of financial records, and employee rights.

In January 2015, Baker collaborated with two other scholars to publish a review, the “Legal Status of Charter Schools in State Statutory Law” in the University of Massachusetts Law Review which found that in most states the legal distinctions between charter schools and public schools are not at all clear due primarily to how legislation providing for charters is often drafted without including any “clear set of rules to follow” for governing the schools – a provision, by the way, the charter lobby often insists on.

The analysis examined whether charter schools, which are generally run by private boards or educational management organizations, are entitled to governmental immunity and whether they are subject to public accountability laws. The scholars examined whether charter schools are subject to the same wage statutes and student expulsion requirements as public school.

Their conclusion was, “While charter schools are generally characterized as ‘public schools,’ courts have had a difficult time determining their legal status because charter schools contain both public and private characteristics.”

Education research experts at the National Education Policy Center also looked at the issue of whether charter schools are public or private and concluded, “Their operations are basically private.”

The NEPC analysis found that because most charter school board operate on “an advisory role,” they outsource their school’s operations to private education management organizations (EMOs).

“It is common practice,” NEPC noted, “for EMOs to write charter school proposals and determine how the school will be managed and operated long before a board is appointed. It is also common practice for the private EMO to provide a list of names for board members, which the authorizer then approves. In recent years, board members have been refused access to information about how money is being spent. Further, there are cases where EMOs have asked the authorizer to remove board members when they start asking uncomfortable questions about finance.”