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TN’s Charter School Act Constitutional: AG Cooper

TN’s attorney rejects suggestion that local districts are unduly burdened by 2002 law

State Attorney General Robert Cooper this week issued an opinion declaring that Tennessee’s charter school law is consistent with the state constitution.

The opinion was delivered in response to requests made by House Speaker Beth Harwell, R-Nashville, and state Rep. Mike Stewart, D-Nashville, asking that the state’s top lawyer weigh in on whether the Tennessee Public Charter Schools Act of 2002 imposes unconstitutional financial burdens on local school districts.

Cooper’s response, delivered Sept. 9, said the law does not unduly encumber local school boards.

“On its face, the Charter Schools Act does not directly or expressly require the expenditure of extra funds beyond what an LEA is already spending on education. Rather, it simply requires that all education funds follow the student for whom they were appropriated,” Cooper’s opinion, issued Sept. 9, stated.

“Furthermore, even if the Charter Schools Act were to increase spending by local school districts, the State share of these shared expenditures would remain significant and thus (the Tennessee Constitution) would not be violated,” the opinion continued.

Cooper’s views sought to addresses questions raised in a memo from an attorney hired by Metro Nashville Public Schools suggesting the state’s system for approving and funding charter school may be constitutionally suspect on the grounds that it might “impose increased costs on local governments with no offsetting subsidy from the state.”

The Metro Nashville school board has been mulling ways to challenge or head off a legislative proposal to grant the state power to override local districts that deny charter schools permission to operate.  The so-called “charter authorizer” bill, which died on the final day of the 2013 session, is expected to see a return next year in some form.

Article II, Section 24 of the Tennessee Constitution, which is the portion of the state’s governing document cited by the school board’s attorney, says that no state law should be passed that mandates an increase in “expenditure requirements on cities or counties” unless the state shares in the overall cost.

“The charter school receives all of the state and local per-pupil expenses, while the [local school districts] still must cover existing fixed costs,” wrote John Borkowski, the Washington, D.C.-based attorney hired by MNPS to assess the Act.

Borkowski added, “There does not appear to be any state subsidy to share in these increased costs.”

Cooper rejected that analysis. He wrote that even if the 2002 Charter Schools Act did increase the amount of education spending for local districts, the state shares the financial weight.

“Through the BEP, the State provides the majority of funds expended on education by LEAs,”  wrote the attorney general. “Consequently, in the event there are increased financial burdens to local school districts in connection with the creation and the funding of charter schools under the Charter Schools Act, the State share of educational funding of the BEP pursuant to Tenn. Code… is clearly more than sufficient to meet the level required by Article II, Section 24, as interpreted by Tennessee courts.”

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