The Education Forum: Charter Schools and Desegregation in Louisiana

THE EDUCATION FORUM

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CHARTER SCHOOLS AND DESEGREGATION IN LOUISIANA
By Andy Kopplin, Policy Director, Governor M. J. "Mike" Foster, Jr., State of Louisiana
Testimony before the US House of Representatives Committee on the Judiciary, Subcommittee on the Constitution
October 14, 1999

Good Morning Mr. Chairman, Members of the Committee. Thank you for inviting me to testify today.

My name is Andy Kopplin, and I serve as the policy director for Governor M. J. "Mike" Foster, Jr. of Louisiana. In that role, I work on all key policy reform areas for the Governor, including charter schools.

I would like to provide you with the Governor's Office perspective on the role that the U.S. Department of Justice (DOJ) has played regarding the development of charter schools in my state and the impact that the department's intervention has had.

Before I do so, however, I would like to take a moment to inform you about Governor Foster's extraordinary commitment to improving and funding our state's public schools, and to describe how our charter school legislation supports that strong commitment to public education. To this point, we created charter schools in Louisiana to improve the opportunities for public school students to get a better education, and made certain that the law we enacted ensured that they could not be used to hamper desegregation efforts in Louisiana.

Over the past four years, Governor Foster has fully-funded the state's school equity formula -- the first time that has happened in Louisiana history -- by increasing funding by nearly $700 million annually, provided pay raises that have helped increase teacher pay by an average of $5,000 per public school teacher, invested $70 million (or $290 per student) in a new K-3 reading and math program that has significantly raised student achievement, and invested $77 million in technology -- lowering our student per computer ratio from 88:1 to 10.5:1.

Perhaps more importantly, our administration looked at best practices from state's like North Carolina, Kentucky, and Texas and implemented a school accountability program that has already begun to show results and that Education Week recently hailed as one of the nation's "most comprehensive."

Governor Foster also created a new community and technical college system and a college scholarship program that is perhaps the most generous in the nation -- offering four years of free tuition to high school graduates who achieve a 2.5 GPA and beat the state's average on the ACT (over 34,000 students this year).

So Governor Foster's commitment to public education and to the students served by our public schools is beyond question.

As I said earlier, our charter school legislation, which was significantly changed in 1996, further exemplifies this commitment to public education and to the students currently attending our public schools.

Many people who are anti-charter schools or who simply don't know a lot about charters don't realize they are public schools with all the obligations and responsibilities that come with that, and that their principle distinguishing factor is that they are run by a group of parents, teachers, and/or community leaders instead of the school board. In many cases, critics of charters fear that they have been or could be created as a means for the best and brightest to leave traditional public schools or to provide a new vehicle for continued white flight.

Nothing could be farther from the truth in Louisiana regarding our charter schools. Our law specifically requires that any charter school serve at least the same percentage of low-income students as that found in the public schools of the parish where the charter operates, and our inclusion of that requirement was intentional. That provision is probably why nearly every member of the Louisiana Legislative Black Caucus supported our charter school bill. We created charter schools in Louisiana to improve the opportunities for public school students to get a better education, not so that they could be used to segregate students by race or income.

For Louisiana as a whole, the percentage of low-income students in public schools is 58%, and for many of the parishes in which charter schools are being formed it is a much larger number. For example, at least 78% of the students in our New Orleans charter schools must be poor. In St. Helena, which is one location where the DOJ's actions have effectively blocked the creation of a charter school, the required percentage of low-income students would have been 92%.

Given the strong correlation between being low-income and being minority in Louisiana, the requirement that charter schools serve significant percentages of low-income students means that all of our charter schools are serving high percentages of minority students. Indeed, all of the students in several of our charter schools are African-American, and in all others black students comprise the vast majority.

Furthermore, given the nature of Louisiana's law, it would be virtually impossible for an all white charter school to be established. It is for this reason that the Governor's Office was quite surprised about two years ago when individuals from the DOJ sought to intervene in the creation of charter schools in this state.

Let's talk about the nature of that intervention. First, it must be split into two forms of intervention -- formal and informal. Formally, the DOJ will be able to point to court desegregation orders that require their involvement in the creation of any new schools. They will also indicate that they have done nothing to really prevent the creation of charter schools -- they are simply making sure that the court orders and the Constitution are being followed. They say that they have nothing against the creation of a charter school long as their formal process is followed.

Unfortunately, the actions of the DOJ have given people organizing charter schools in Louisiana the impression that DOJ plans to do everything in its power to prevent the opening of certain charter schools and would work to close down certain ones that didn't initially request court approval.

In a meeting that the Governor's Office had about two years ago, DOJ officials indicated that three charter schools that had been started in East Baton Rouge Parish were improperly created since they had not sought formal approval from the DOJ and the federal judge. In their view, the decades-old desegregation cases applied to the creation of charter schools, despite the fact that charter schools are an educational reform idea that hadn't even been contemplated at the time these cases were filed.

When asked about whether it made a difference that these schools had improved the educational attainment of low-income, minority students in largely the same demographic setting as they had left (because of white flight, East Baton Rouge parish already has nearly 30 all-minority schools), the DOJ officials explained that they could not be concerned about the quality of education the students received, but were instead focused on whether DOJ's process had been followed to the letter. While we respect the DOJ's role in the desegregation cases, we nevertheless disagree with the perspective that following the DOJ's standard operating procedures is more important for students than the quality of their education, especially in light of Louisiana's charter school law which makes resegregation and/or "white flight" virtually impossible.

We are very concerned that the DOJ involvement will simply "delay the charter school's applications to death" and their actions to this point are a real concern for the charter schools.

Any such delays are deadly for charter schools. Unlike DOJ's involvement in Louisiana's prisons, state hospitals, and higher education institutions, which have the luxury of time and state-paid attorneys to work through the long negotiating and court processes, almost no charter schools have the resources to engage in protracted legal wrangling. Standard operating procedures of the DOJ that may seem reasonable when dealing with prisons, hospitals or higher ed bureaucracies (and I might add that the Governor's Office is pleased with the progress we are making with DOJ's Office of Civil Rights in regard to these cases) are just out of proportion in the small-time world of most charter schools.

So what impact has the DOJ's involvement had on Louisiana's charter schools? They have effectively prevented the opening of two different charter schools (one in St. Helena and another in Baton Rouge), have cost the state and local organizations seeking charters tens of thousands in legal fees, and have put a damper on the efforts of others thinking about creating such schools. Again, remember, in Louisiana these schools are serving low-income, minority students. Since the evidence suggests that charter schools perform, on average, better than regular public schools, stopping these charters effectively limits the educational attainment of those students who would be served.

The DOJ will state that all they want is for every charter school in Louisiana within a school district under a desegregation order or consent agreement to formally seek approval from them and the federal court before opening. Since almost two-thirds of Louisiana's 66 school districts fit in the above categories, this approval becomes almost a de facto requirement for anyone trying to start a charter anywhere in the state.

Although DOJ officials readily admit that such approval could take months, they also say that a given charter school really doesn't need to spend any money on attorneys to get this accomplished. Now, how many of you would feel comfortable going before a federal judge requesting approval to open a school without an attorney who understands the process?

As many of you know, charter schools are often started by educators, parents, community leaders who know that they can do something better for the students, who in Louisiana will be predominantly low-income and minority, than the current public schools are doing. Starting such schools is incredibly difficult to begin with -- trying to develop a quality educational program; securing a facility; hiring a faculty; purchasing liability insurance; getting 501(c)3 status from the IRS; making a tight budget work. Add on top of this the time, energy, and costs involved with securing approval from the DOJ and the federal court, and you have effectively scared off some groups. To give some idea of potential costs, the chartering group in St. Helena received an estimate from their attorneys that it might cost $132,000 to handle the case before the federal court and to meet all of the anticipated requests of the DOJ. It is obvious why they gave up their effort. Given that some charter school budgets are no more than $600,000 per year, such up-front legal expenses make opening a charter cost-prohibitive.

In the East Baton Rouge Parish case, DOJ has taken steps that slowed the approval process of a charter school to a crawl and convinced the charter school organizers to seek sophisticated legal counsel of their own. Although the DOJ officials suggest all a charter school needs to do is request and obtain court approval and then it can open, DOJ objected to this charter school's request to become an intervener in the district's desegregation case and thereby have an opportunity to present their arguments to the judge directly. I believe the DOJ should have allowed them ready access to the judge to plead their case.

Even where DOJ has not formally objected to the expansion or creation of a charter school, the requests DOJ has sometimes made for written reports and documentation may from a practical perspective have made the process unreasonably time consuming and expensive. For example, although DOJ did not object to the requests of two East Baton Rouge charter schools to add an additional grade, by requesting extensive background information from them, DOJ's actions had the effect of extensively increasing the costs of adding those grades because the schools felt the need to retain counsel to help prepare the documents.

In conclusion, the DOJ has done little to "formally" prevent the creation of charter schools in Louisiana. But informally, they have done a great deal.

Now I will be the first to say that absolutely horrible things occurred in Louisiana in the past because of racism and because of past state laws that enforced segregation, and that DOJ intervention was needed to help correct these wrongs. But what has happened with the charter school situation in the late 1990's appears not to be the correction of legitimate wrongs, but interference in the creation or expansion of charter schools. The only explanation for this that I can muster is that either the DOJ is opposed philosophically to charter schools or that DOJ's reliance on its standard operating procedures for desegregation cases is so time consuming and bureaucratic that it has the effect of stopping the charter schools in their tracks. In any case, the results of DOJ's interventions have been significant in terms of stopping the creation and expansion of charter schools but I believe negligible in addressing the problems of segregation.

The Governor's Office position is that Louisiana's charter school laws already contain sufficient protections to ensure that our nation's and state's civil rights laws are not violated and students are not resegregated as a result of charter schools, and that we ought to move forward with these important experiments in improving public education so long as they are not found to exacerbate current segregation problems.

We have requested that the DOJ take a stance of "innocent until proven guilty" whereby it can move to shut down a given school if it truly is violating the civil rights of students by adversely impacting desegregation efforts. Instead, DOJ has continued to insist that a "guilty until proven innocent" approach be taken whereby a given school needs to demonstrate in advance exactly where every one of its students will be coming from and the specific impact the loss of those students will have on desegregation efforts of the school district. As our attorneys have pointed out, this type of "proof" is impossible to gather until after a given school is actually open. This is especially true since charter schools get their students through voluntary enrollment.

DOJ did choose not to intervene in a case in which a group of African-American church members organizing a charter school in Monroe, Louisiana found themselves in a Catch-22 situation, and we are grateful for that. In this case, the school district attorneys, who opposed the charter school, argued in part that if the proposed charter school enrolled one white student this was bad since that was one less white student for the larger school system to use in integrating its schools. On the other hand, an all-black charter school would not improve desegregation efforts since it would be a single race school. How can you win? Fortunately in this case, the federal judge made it emphatically clear early-on that he was inclined to support the charter school's application and DOJ wisely stayed on the sidelines.

The Governor's Office also has concerns regarding what measures the DOJ has used and/or will use to determine if a given charter school will adversely affect the ability of a given school district to implement its desegregation plan. They had indicated that any loss of funding to the school district will be a key item they will review. Since every district will experience some loss of funding when a charter school opens because the district will lose some students to the charter school, does this mean that every charter school will be opposed by DOJ?

Finally, we also have concerns about the approach that the DOJ may take regarding other recent education reform efforts in Louisiana. What will they do when the state's new accountability system begins to allow students from chronically poor-performing schools to enroll in higher performing public school. Will such transfers be prohibited because desegregation orders written in some cases decades ago didn't contemplate real accountability systems for schools?

In closing, I welcome this opportunity to share these concerns with you. Based upon these recent experiences, it appears that efforts to improve the quality of education for low-income and minority students through charter schools are taking a backseat to decades-old approaches to desegregation that involve months of negotiating and thousands of dollars spent on attorneys and desegregation experts. The Governor's Office has no quarrel with the DOJ's goals of preventing institutionally-driven segregation and welcomes the involvement of the DOJ to work collaboratively with us to improve the system of public education and to make sure that the things we are trying to do really will benefit students. But we worry that the approach taken by DOJ at this time has the effect of preventing educational improvement from occurring through charter schools, which under our law have virtually no possibility of adversely impacting desegregation efforts.

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Additional Testimony on Charter Schools and Desegregation in Louisiana: