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TN’s Charter School Act Constitutional: AG Cooper

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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Press Releases

Fitzhugh: State Charter Authorizer ‘Mother of All Unfunded Mandates’

Press release from the Tennessee House Democratic Caucus; April 3, 2013:

NASHVILLE, Tenn. – House Republicans pushed through a state charter authorizer after killing an amendment by Leader Fitzhugh that would have set in place financial guardrails to protect local taxpayers from a tax increase.

“This bill, without guardrails, is the mother of all unfunded mandates. It will give a state bureaucracy the power to create an unlimited number of charter schools, which will result in massive tax increases on local governments,” said House Minority Leader Craig Fitzhugh. “I offered a common-sense amendment to help protect taxpayers, but the special interests behind this bill override common-sense.”

HB702 by Rep. White (R-Memphis) will create a new state bureaucracy to oversee appeals of charter schools denied by local school boards. In the third substantive change to the bill since it was introduced, the new language limits the panel’s authority to school districts which are designated “priority” districts. During the committee hearing, Leader Fitzhugh noted this would be duplicative and a waste of taxpayer funds. The Achievement School District already has the authority to authorize charters in districts who perform in the bottom five percent of the state.

“This is a bad bill that keeps getting worse as the sponsors wheel and deal behind the scenes to pass something – anything – regardless of whether it will improve the performance of students in our district,” said Rep. Mike Stewart (D-Nashville). “I am deeply disappointed that Commissioner Kevin Huffman worked behind the scenes to kill the amendment that would have protected taxpayers in Davidson County and across Tennessee. The fact that he refused to even meet with local school board members in Nashville shows his level of contempt for Davidson County taxpayers and elected officials.”

The charter authorizer bill passed out of the House Finance Ways & Means subcommittee on a voice vote, and will move on to the full committee next week.

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Press Releases

House Dems Oppose New State Charter Authorizer Proposal

Press release from the Tennessee House Democratic Caucus; March 5, 2013:

NASHVILLE, Tenn. – State Representatives are speaking out against a new statewide charter authorizer moving through the House which threatens to blow a hole in local education budgets and risks weakening high standards for charter schools in our state. The new proposal, which drastically alters a plan which passed through the House Education Subcommittee on February 12, creates an unelected nine member panel appointed by the Governor and the Speakers of the House and Senate.

This new bureaucracy would have complete authority to approve charter schools in local school districts, without input from local elected officials who would be required to come up with the funds to pay for them. Supporters of the legislation have refused lawmakers’ request to put in place a ten percent cap on the portion of a local school budget that could be controlled by this new unelected charter panel.

“Republicans are rushing through a bill which will have a dramatic impact on local taxpayers in Davidson County and across the state,” said House Democratic Caucus Chairman Mike Turner. “This law amounts to nothing more than an unfunded mandate which will blow a hole in local budgets, potentially forcing tax increases to pay for charter schools that weren’t good enough to pass local scrutiny.”

The Davidson County delegation met earlier today with supporters of the bill to address their concerns about this legislation, and the impact it will have on their local government. However, many left the meeting with more questions and concerns than they went in with.

“What they are saying is $70 million is not enough,” noted Metro Councilmember and State Rep. Bo Mitchell (D-50). “We asked, ‘will you at least limit this unelected board’s control to ten percent of our school budget?’ The answer was flat no. Every taxpayer in this county should be extremely alarmed.”

“Apparently, the bill’s backers want more than ten percent of our school budget – that is just incredible,” said Rep. Darren Jernigan (D-60). “Make no mistake about it; if that is the plan, we are in for another tax increase which will hurt the people I was elected to represent – that is something I cannot support.”

Davidson County lawmakers are concerned that this new legislation is part of an overall effort to defund public schools, and put special interest groups in charge of our education system in Tennessee.

“Clearly the charter associations envision a large scale takeover of the Metro School budget,” said Rep. Sherry Jones (D-59). “We don’t need a group of unelected special interest representatives making unchecked decisions that will hurt taxpayers and children in our schools.”

“This new ‘charter panel’ is designed to silence the voice of parents and taxpayers in a local school district,” said Rep. Mike Stewart (D-52). “Taxpayers will have no recourse to reign in this unelected body if they don’t like how their money is being spent, or if a local government has to raise taxes to accommodate this mandate.”