When charter schools in Colorado feel like local school districts aren’t giving them a fair chance to open, they can ask the state Board of Education — a seven-member board of elected officials — to serve as referee.
Charter schools don’t file an appeal every time they are turned down. But when they do, the state board is tasked with making sure local school boards aren’t making a decision that could hurt the community’s chance of having school choices.
In the past three years, the Colorado State Board of Education has sided with charter schools in all but two appeals on proposed openings or other issues, according to records reviewed by Chalkbeat.
That’s a marked decrease from data going back ten years, and it has prompted local school boards to reconsider their role as authorizers of charter schools. Some local district officials worry that the trend could challenge their ability to set high expectations for all schools.
“I don’t personally feel as a Jeffco board member I’ve been given the authority that I should have to effectively evaluate a charter school for Jeffco based on how it fits in our local community,” said Ron Mitchell, president of the Jefferson County school board. “Most of the districts in the metro area have experienced this.”
The Jeffco school board, whose five board members all are new to the process, brought in a lawyer in September and voiced disappointment when she told them their concerns about the strength of a budget or curriculum may not hold up as valid reasons to deny a charter school.
During that meeting, board members also voiced a concern that if a school doesn’t enroll enough kids it may not be financially viable — or that a charter could take so many students from a district-run school that the smaller school would be forced to close.
“I’m worried about the things that aren’t necessarily bright lines, but we still don’t find satisfying and what you just said a moment ago was if it’s not detrimental to the district then we should approve it,” Mitchell told the attorney at the meeting. “That seems to me a pretty horrible standard. Merely not being a hinderance is not much of a threshold.”
The attorney, Kristin Edgar, responded by reiterating that generally speaking, when a group of people has met the requirements in proposing a school, “we have an obligation to give this group of people a chance.”
Jeffco’s board denied a charter school anyway, citing the financial viability of the school if not enough students enroll, and other factors.
The state board last month asked Jeffco to reconsider, but on Thursday the board failed to approve an agreement with the school again. If it goes to a second appeal and the state board finds the local decision was “contrary to the best interests” of the students, the district or the community, the state board can order the school be allowed to open.
“To not allow opportunity — to guarantee against failure — is to guarantee that people will not have options,” Republican state board member Steve Durham said at that appeals hearing. “This is not a risk-free world.”
The board began siding more often with charter schools notably after changes in board leadership two years ago that included the appointment of Durham, who immediately emerged as a vocal and influential presence. However, charter appeal votes don’t always fall along party lines and the votes can vary depending on the circumstances of each case.
Aurora Public Schools, a district that has gradually warmed to charter schools and is seeing an increase in applications, last summer approved several charter schools. One school that didn’t open on time withdrew an application, and the district created a new process to allow it to join instead with another charter that was approved to do the same work in the same neighborhood.
The Aurora district last year also decided to close local branches of HOPE Online Learning Academy, a multi-district charter school, that was not meeting performance expectations. The state board questioned the decision and overturned it.
“I think that the belief right now is that districts are by default going to lose charter school appeals except in extreme circumstances. Anybody in the field would tell you that,” said Rico Munn, superintendent of Aurora schools. “If that’s the case, that really hampers how much of an honest job you can do with a charter proposer and really challenging what they do.”
Charter school advocates say that even though charter schools have been in Colorado more than 20 years, an appeals process is still necessary. They say it allows recourse for schools that may not get a fair shot at opening in districts that are apprehensive about all charter schools, which are publicly funded but independently operated.
Not all charter school appeals prevail with the state board. In 2015, the board denied an appeal of an Aurora Public Schools rejection of a charter school that proposed personalized learning — or tailoring instruction to each student’s needs — and a strong emphasis on teacher leadership.
The district cited concerns that the application didn’t outline how it would comply with state accountability laws to test students and to set achievement goals. The state board majority agreed. Still, the head of the proposed charter school, teacher Roya Brown, said she valued having the opportunity to appeal.
“In our case it didn’t matter what we did,” Brown said. “It wasn’t enough.”
Dan Schaller, director of governmental affairs for the Colorado League of Charter Schools, a membership and advocacy organization, said one or two years of charter appeal victories should be viewed in the context of a longer period.
“I do feel like it provides really important checks and balances,” Schaller said. “I would point back to the track record of how it has played out over time. Over the balance of time it has been very balanced.”
The most recent data from records of state board meetings and hearings show that between 2014 and 2016, the state held 12 appeal hearings and voted to uphold the local decisions against charter schools twice. Between 2011 and 2013, the board heard the same number of appeals but upheld local decisions eight times.
At times, the state board is united. The board’s July decision to turn back Aurora’s attempts to kick HOPE schools out of the district boundaries was unanimous, with board members saying parental choice trumped the school’s poor performance on state tests.
Jane Goff, a Democratic state board member from Arvada, said she has never changed how she applies the standard of review for appeal hearings. She said trends in appeals change in part because boards of education change and “people come in with varying points of view.”
“I do consider myself to have a record of balance on these decisions. For the most part, I tend to support the districts,” Goff said. “I believe that in almost every case the district has done a thorough job of vetting the applications.”
But, she added, the recent trend of siding with charters could be because more groups from outside of school districts are seeking to open, leading to skepticism on school boards.
Durham, the former board chairman, did not respond to Chalkbeat questions.
It’s unclear whether the board’s stance on charter appeals will shift again in light of November’s election. Democrats now control the board for the first time in nearly five decades, and Boulder Democrat Angelika Schroeder has replaced Durham as chair.
In Aurora, the process for reviewing and authorizing charters is changing under Lamont Browne, a former principal and charter school leader who is new to his role as the district’s executive director of autonomous schools. District officials said they are still trying to set a rigorous process with high standards.
“We feel like we have authority, absolutely,” Browne said. “The state board’s wishes or past decisions or practice does not impact our process. If the state board decided to uphold or to overturn, that is outside of our hands.”
Officials said the charter consideration process in Aurora may often include discussions or conversations with charter applicants about details like location, budget or curriculum, even if those are details staff won’t use to recommend an approval or denial of a charter.
Kate Mullins, executive director of Vega Collegiate Academy, the charter school that was modified to join another in Aurora to open this fall, said those discussions are important.
“Communication is the number one most important thing,” Mullins said. “In my brain, you really want to communicate with the district as soon as possible to ask, ‘What do you feel like the district needs?’ to make sure you are proposing a school the district and community wants and needs and deserves.”
Chalkbeat is a nonprofit news site covering educational change in public schools.