This past month, PDE issued its first revised BEC on charter schools since 2004. The BEC provides guidance to both school districts and charter schools on a range of issues from how initial charter applications should be reviewed by a school district to expectations regarding a charter school’s operations, to relevant factors to consider in a non-renewal or revocation of a charter. The May 2019 BEC incorporates many of the appellate court rulings that have been issued since October 2004.
Brief summary of the changes
Evaluation of an Initial Charter Application: The BEC incorporates a prior Commonwealth Court decision which measures sustainable support for a proposed charter school in the aggregate, as opposed to measuring individual categories. The BEC also clarifies that if a for-profit entity plays a role in the establishment of a charter school, the charter applicant must demonstrate that the proposed charter school’s Board of Trustees will possess real and substantial authority not only over the operation of the school, but also over educational decisions.
Terms and Conditions of a Charter: The BEC clarifies that an enrollment cap is enforceable so long as it is agreed upon by the chartering school district and the charter school.
Amendments to Charters: The BEC incorporates an appellate court decision regarding amendments to charter by clarifying an amendment to a charter can only occur by agreement between the chartering school district and the charter school.
Renewal Procedures: The BEC is updated so that it no longer refers to the No Child Left Behind legislation and Adequate Yearly Progress Academic measurements.
Enrollment Issues: The May 2019 BEC reaffirms that charter schools cannot discriminate in its admission policies or practices based on intellectual ability, athletic ability, English language proficiency, or any other basis that would be illegal if used by a school district. However, the BEC acknowledges that charter schools with a specific mission may maintain non-discriminatory criteria to evaluate prospective students. The BEC also clarifies that a charter school has no obligation to enroll a child until a parent/guardian has provided the charter school with proof of the child’s age, residence, and required immunizations.
Compulsory Attendance: The revised BEC reflects amendments to the laws that were made in 2016 and 2018 relating to truancy. The BEC confirms that charter schools are required to maintain attendance polices that are designed to accurately determine when a child has an unexcused absence so that the unexcused absences are directly reported to PDE. Additionally, for those students that have ten (10) consecutive unexcused school days, the BEC clarifies that the student must be dis-enrolled from the charter school, with notice to the student’s school district of residency.
Students Institutionalized: The BEC clarifies that students placed in hospital settings are not considered to be institutionalized and, therefore, charter schools cannot unilaterally withdraw those students for such treatments as a physical injury or for mental health care. The charter school, during a student’s impatient hospitalization, is responsible to pay for the student’s educational services.
Expulsion/Suspension of Students: The revised BEC makes it clear that applications for a charter must include the charter school’s procedures for suspending or expelling students. The revised BEC also makes it clear that a student may not be suspended or expelled for failing to meet a charter school’s academic performance requirements.
Dual Enrollment: The updated BEC provides clarification on whether a charter school may contract with institutions of higher education to provide course work as part of a charter school’s curriculum. The charter school may only provide their students with high school credit for any courses taken at a higher education institution; any decision to grant post-secondary credit is to be made by the higher education institution.
Leasing of a Facility: The revised BEC reaffirms the practice of a charter school qualifying for a lease reimbursement if it has an approved charter, a signed lease agreement for the rental of a building/or portions of a building. The BEC clarifies that reimbursement for a building if the building solely houses administrative staff; however, reimbursement is permitted if the building includes space for both educational and administrative uses.
Retirement Benefits: The revised BEC acknowledges that charter schools must enroll its employees in the PSERS system unless the charter school obtains approval from PSERS to enroll some of its employees in an alternate retirement plan. The revised BEC also memorializes PDE’s past practice of deducting any delinquent charter school PSERS’ payments from the chartering school district’s basic education subsidies.
Bottom Line for Schools
The revised BEC provides, in one place, a more up to date analysis of the current law governing charter schools operating in Pennsylvania. However, since the charter school laws are always continually being clarified by the appellate court, it is always best to consult with either the solicitor for a school district or an attorney or regularly practices in this area of law so that accurate, current information is given in this evolving area of the law.
If you have a question, contact your legal counsel or one of the education attorneys at KingSpry.
This School Law Bullet is a publication of the KingSpry Education Law Practice Group. John E. Freund is our editor. It is meant to be informational and does not constitute legal advice.
