If “open secret” is one of the top-listed oxymorons used in everyday conversation, chances are we won’t see –or better yet, hear much longer– another contradictory term: “public charter school.”

That’s because a ruling on August 24 by the National Labor Relations Board might help to eventually put the term “public charter school” in the oxymoron trash bin.

In a New York case involving the efforts of a union to organize the staff at the Hyde Leadership charter school, the NLRB concluded that the school should be subject to its jurisdiction, rather than the Public Employee Relations Board, since “Hyde was not established by a state or local government, and is not itself a public school.”

Let me repeat that. The National Labor Relations Board has determined that Hyde Leadership, a New York charter school, is not a public school.

In a statement, Carl Korn, a spokesman for the New York State United Teachers, said:

“The charter industry wants to have it both ways. Charter management claims charters are public schools when they want taxpayers’ money, but use legal maneuvers to hide from public audits, seek to evade the rules that govern public pre-k programs and, in this case, claim they are private schools when it comes to union representational elections.”

It’s good to see the NLRB check the charter industry on this one, as Ohio charters have proven themselves quite expert at having it both ways.  But the NLRB decision, as important as it is for observers of the privatization of public education, follows by a year another groundbreaking ruling that also challenged the legal basis of charters.

In September 2015, the Washington State Supreme Court, in a 6-3 ruling, determined that “charter schools aren’t “common schools” because they’re governed by appointed rather than elected boards.” Chief Justice Barbara Madsen, who wrote the majority opinion for the court, concluded that since charter schools are therefore not public entities, “money that is dedicated to common schools is unconstitutionally diverted to charter schools.”

On the heels of that ruling last year, Plunderbund reported the importance of that case in this fashion:

“For more than twenty years, charter school critics have made the same point and observed that privatizers have it both ways. The privatizers consistently refer to their progeny as “public” charter schools while they have also advised the public that since many of these schools are run by private corporations, the school operators are not obligated to open their books for public audit because they are a private enterprise.

That argument demonstrates the hypocrisy of the privatizers as they refer to “public” charter schools.  In fact, these corporate schools embody a basic contradiction, as public funds are deducted from the support of public school districts governed by publicly elected boards to support otherwise unaccountable schools with handpicked governing boards selected by the school operators.”

As has been said, you can’t have it both ways. The perfect example of this practice is Neil Clark, the omnipresent ECOT spokesman and defender of the troubled, failing and challenged online mega-charter school. Clark is recognized as a master of trying to have it both ways with this sterling example of hyperbole:

“It’s interesting that the district schools, which make no mistake, are government-run schools, are complaining about their government money when they continually fail to do their jobs.”

Clark, an Ohio Statehouse lobbyist who has been known to use the word government twice in the same sentence while being paid by an online school which operates with public tax, er, government dollars, has actually affirmed through his pejorative-laden statements the basis for the rulings by the NLRB as well as the Washington State Supreme Court.  If an entity such as a school is established by a state or local government, it follows that it is a public school, created to fulfill a proper public purpose. On the other hand, if it’s established through action by a charter authorizer or a for-profit entity working with an authorizer and has a hand-picked, non-elected board, it’s not a public school.

What Clark and others like to refer to as “government” schools are in fact our community’s public schools owned and operated by a local or state governmental body, and governed by a school board elected by qualified voters. Unfortunately, we have found that not only are non-elected charter school governing boards composed of people hand-picked by the school management company, but some charter board members, incredibly, are not even qualified voters themselves, viz., citizens, as the Akron Beacon Journal reported in July 2014.

Inevitably, we are back to the importance of these two decisions, one at the federal and one at the state supreme court level. The decisions have reaffirmed what we know as the very nature of a public school. There are no hybrid or different versions, as was implied by the use of the public relations firm construct of “public” charter schools and the forced reaction shown by the creation and use of the term traditional public schools.

The NLRB found that “charter schools are private corporations that contract with government and are not “state actors.”  Here is a summary I’ve assembled, based on my experience as both a charter school sponsor representative and a state education agency specialist assigned to monitor charter schools, that details some of the distinguishing characteristics which affirm that charters are not public schools:

  • Charters like to refer themselves as “public” schools, yet they are exempt from 150 sections of Ohio state law that apply to real public schools. If charters were authentic public schools, they would not need so many loopholes in order to operate. With so many legal exemptions, the more private – and less public – nature of the school is revealed.
  • Governing boards of charters are not elected by qualified voters that reside in the community served by the school but instead are hand-picked by the school management.
  • Governing board members are not required to be qualified voters (citizens).
  • Charters are mostly run by for-profit management companies, which maintain that as private entities, they are not subject to public records requests and full financial reviews conducted by the state auditor.
  • There is no requirement in state law for a charter school head to have a professional license or any educational certificate or degree.
  • Many charters are housed in facilities owned by the management company. It has been the practice of management companies to maintain that any property, furniture and equipment belongs, particularly at dissolution, to the private entity, and not to the school or the taxpayers who paid for the school’s tangible assets.
  • Recent reports have documented the state practice of using local funds to subsidize charters. Critics have pointed out that elected school boards did not vote on the appropriation of these funds that otherwise would have supported their districts, as the funds are spent by private companies not subject to public audit.

This list of characteristics demonstrating the non-public nature of charters could be even longer, but the essence of the contradiction – the oxymoron that is the term “public charter school” – needs to be addressed. For those who agree with the Washington Supreme Court and the National Labor Relations Board findings, the term traditional public school is indeed redundant, while the term public charter school is an oxymoron that needs to be retired from our everyday language.

So let’s clarify our language and correct usage. The more accurate terms would be to identify these strange entities as either “corporate schools” or “privately operated, publicly funded charter schools.” They do not fit the long-held and agreed upon definition of public schools, don’t possess the characteristics listed, and don’t serve as legitimate “state actors.”

There is no doubt that we are at a crossroads in the debate about charter schools. No, they are not public entities, as Republican politicians would like us think, yet we must clean up the mess that was made in creating schools that are public in name only, and only because public funds make them possible.

Do we provide reform around the edges, as a recent Columbus Dispatch editorial proposed, or do we take a deep breath and end a flawed (and unconstitutional, in the view of the Washington State Supreme Court) educational model?

What might have been a well-intentioned reform to allow innovation and choice, as early charter visionaries saw small, nimble, innovative, teacher-directed and teacher-led schools, was hijacked in part by corporate America, with its focus on cost control and profits rather than student impact. This is not a pretty picture, with the corporate school masquerading as the “public” charter school.

Privately managed schools with non-elected boards and management companies that do not accept full transparency and accountability cannot at the same time be public in nature, and we must stop pretending this false state of affairs.

Let’s be clear: National charter school chains that are traded on Wall Street, along with other for-profit and-non-student-centered schools managed by private companies, don’t properly serve the public education function. In fact, public education and profit-driven constructs used together are both antithetical and an example of unnecessary oxymorons that aren’t needed in public policy formulation.

It’s that simple.

We owe thanks to the Washington State Supreme Court and the National Labor Relations Board to call into question the two-decades-old experiment encapsulated in the term “public charter school.”

Yes, charter schools are not public schools. Now that we know this, why are we funding them with public dollars and how do we begin to repair the damage inflicted on the real public schools?

We invite community and national organizations like the League of Women Voters, National and Ohio PTA, local school boards and their leadership organization, the Ohio School Boards Association, civic organizations and others with deep roots in the community to start the conversation that public schools answer to the words traditional, community, local, and yes – a government organization, because we the people govern them. Charter schools cannot be identified with any of these descriptors and are thus not public schools. In the State of Washington, as I am sure in other states, charter schools are unconstitutional because they are not common schools elected by qualified voters.

So the learning in all of this is that we all should watch our language. Public schools are just that – our schools, not those of a distant, obscure corporation. Our public treasury has been looted to support these privately operated schools. It’s time to take back public education and remove those in the legislature who continue to support this hijacking of our public treasury.

An internal report once described Ohio’s charter school program as a slow-motion train wreck. It’s much worse than a train wreck. As we discard oxymorons and call out charter industry folks for trying to have it both ways, we must remember the earlier advice of W. C. Fields: we must take the bull by the tail and face the situation.


Denis Smith is a retired school administrator and a former consultant in the Ohio Department of Education’s charter school office. He writes about education issues as well as politics and constitutional reform.