Will the defendant please rise?

For those who follow the frequent high crimes and misdemeanors generated by the charter school industry, we’ve heard those five words spoken much too often. In fact, there have been so many violations of the public trust by charter school operatives nationally that at least one aptly named website, Charter School Scandals, has been established to chronicle the misdeeds of school privatizers.

But apart from the voluminous information available about charter cardinal sins, a look at some closing remarks made by a defense attorney in a Franklin County Common Pleas courtroom last week sheds light on some of the fatal design characteristics that make so many charter school scandals possible.

Crysta Pennington, attorney for former charter school operator Andre Tucker, explained some of the hurdles her client faced, including the loss of his sponsor.  “Put yourself in Mr. Tucker’s shoes,” Pennington said. “You’re going to continue to run your business. And that’s what he did.”

Business? Was Tucker provided public funds to run a business?  Or were the public funds entrusted to him for the purpose of establishing a “public” charter school?

The Columbus Dispatch story carried a few more details about Tucker’s travails as a charter school developer:

“The academies opened and then quickly closed in fall 2013.

[Tucker continued]  even though he had no building, ultimately ending up trying to operate the school out of a water park and public libraries, only able to stay open a few days a week. Maybe he wasn’t the best businessman, Pennington said, but that’s not a crime.”

We’re back to the use of the word business again, and that’s a problem.

If people consider a school to be a business enterprise, inevitably the profit motive gets confused with the educational mission, which is what schools are supposed to be all about. The proliferation of for-profit national charter school chains has been a chief contributor toward the blurring of pedagogy and profit. And entities like Imagine and K12, a publicly traded company that is a big player in the virtual school field, only add to the growing perception that charter schools are first and foremost businesses and thus are all about money and privatization.

And politics. But I digress – that’s another topic.

Attorney Pennington’s observation about the closed academies as failed businesses also raises an additional question dealing with governance and the culture of transparency and accountability that comes with schools as supposed public institutions.

In September, the Washington Supreme Court ruled in a 6-3 decision that “charter schools aren’t “common schools” because they’re governed by appointed rather than elected boards.” Moreover, the lawsuit, brought by a coalition of public education groups and joined by the League of Women Voters, was based on the argument that state law was unconstitutional because “money that is dedicated to common schools is unconstitutionally diverted to charter schools.”

While charter school critics across the nation applauded the Washington decision, it is nonetheless incredible that similar legal arguments which clearly define the components of public education have not been argued successfully up to this point.

In Washington, a common school is that institution which is supported through public funds and has a governing board that is selected by qualified voters in the territory where the school is located and taxes levied to support that school. The legal reasoning of the justices determined that if public funds were siphoned away to support a type of school where the voters had no input as to the composition of the board entrusted with public funds, it was not a common or public school. Needless to say, the appointive versus elective nature of charter school boards motivated the League of Women Voters to join the anti-charter lawsuit.

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.

Plunderbund readers might also be familiar with other areas of needed charter school reform. While Ohio residents witnessed the drama in the legislature about how reform legislation was stalled for months and, finally, modest changes were approved recently in House Bill 2, major reform needs to be accomplished, particularly in the crucial area of governance and administrative qualifications. After all, we don’t need business people to run schools, but highly qualified educators who know how to address the intellectual, physical, social and emotional needs of young people.

More cynical observers might say it would be a good idea to leave the present governance structure alone, and then craft a suit to challenge the constitutionality of charter schools a la Washington due to the fatal flaw of having appointed and thus unaccountable boards.

In any event, we owe a lot to attorney Pennington for helping us to clarify Ohio public policy that encourages the formation of private businesses which masquerade as “public” charter schools. Likewise, the nation is indebted to the Washington Supreme Court for its ability to teach us a civics lesson and, in the process, highlight a problem of democracy. When a board that is hand-picked by a private corporation and spends public funds to run what is called a “public” charter school that is a problem of democracy due to the absence of voter input – a violation of the democratic process.

We also should extend our thanks to the League of Women Voters for helping the Washington Supreme Court to understand that a school is not a business, but it nevertheless must be our business to ensure that schools are learning communities, not profit-centered enterprises, governed by citizens chosen in elections by qualified voters, not by corporations.

When you add up all of these elements, you have the essence of the true public school. Indeed, it must be our business to keep it the way Horace Mann, John Dewey and the League of Women Voters have always seen it.

If we do not preserve the public school, we have made a choice to undermine our democracy. The public school – the real community school – must therefore be our school of choice.


Denis Smith is a retired school administrator and a former consultant in the Ohio Department of Education’s charter school office.