For years, opponents of school choice had a corner on the litigation market. But in a sign that charter schools have matured, lawsuits have recently been filed in Washington, D.C., and New York State demanding equitable funding. When the charter school movement was in its infancy, such litigation would have been politically dangerous. Why support charter schools if they may turn around and sue you? But charters are now so well established that they are fighting back against the second-class funding status that states and school districts have assigned them.
This past July, the D.C. Association of Chartered Public Schools filed suit in federal district court claiming that the District of Columbia has been underfunding charter schools in violation of the U.S. Constitution and federal law. The association represents 39 of the district’s 60 charter schools. Altogether, the district’s charter schools enroll more than 36,000 students, 44 percent of its student population.
The association contends that under the federal 1995 District of Columbia School Reform Act (SRA), which was passed under Congress’s constitutional authority over the district, charter schools are entitled to equal per-pupil spending. The district, however, is alleged to have shortchanged its charter schools by funding them according to their audited enrollment while funding regular public schools based on their projected, but always inflated, enrollment. The inequity has grown more severe as charters have become more popular, while the district’s traditional schools continue to hemorrhage students. Also, the District of Columbia is alleged to have provided traditional public schools with supplemental funding, support for operational expenses, and in-kind services, such as security from city police, that it has not granted to charters.
According to the D.C. Association of Chartered Public Schools, these prejudicial measures resulted in the unlawful underfunding of charter schools by $2,100 per pupil. Importantly, the association’s charges are supported by a 2013 school-finance study commissioned by D.C. mayor Vincent Gray, which found that “differences in the level of resources allocated to District of Columbia Public Schools (DCPS) and public charter schools have been particularly concerning.”
The district has made several arguments in defense of its funding scheme. Primarily, it argues that the SRA only set a legal minimum for funding charter schools. The district also contends that because the mayor and board of education have provided additional funding for traditional public schools ever since the act was passed, those actions have created an authoritative legal precedent. As well, Congress has known about the disparate funding and has done nothing to revise it, thus signifying approval. Finally, the District of Columbia contends that traditional public schools generate higher costs because they have to use union labor, and, therefore, they should receive higher funding. Since the SRA appears to require that both traditional and charter school students be funded at the same dollar amount, we suspect the city will need better arguments if it wants to win in court.
The D.C. lawsuit was followed in September by a case filed in New York State court, Brown v. New York, alleging even larger funding disparities. The Northeast Charter Schools Network (NCSN) brought the suit on behalf of parents of charter school students in Buffalo and Rochester. The organization claims that what charter schools receive, typically 60 to 75 percent of what traditional public schools receive per pupil and no funding for facilities, deprives the children of their right to a “sound basic education” under the state constitution. In Buffalo, charter schools receive $9,800 less per pupil than traditional public schools, while in Rochester the gap is $6,600.
Brown v. New York should sound familiar. It is modeled on Campaign for Fiscal Equity v. New York, the state’s infamous adequacy lawsuit (see “Judging Money,” research, Winter 2007). Because the plaintiffs in Brown lack any statutory support, we would normally bet against their success. But since New York courts already showed themselves willing to find previously unnoticed educational rights in the state constitution’s otherwise opaque education clause, their odds of winning are not negligible. The NCSN knows that the litigation could take years to reach a judicial resolution but hopes the suit will spur the state legislature to increase funding in the meantime.
Regardless of the outcome, these lawsuits represent an important milestone for charter schools. They are now so entrenched that they can safely sue. Congratulations, charter schools. You have arrived.
Joshua Dunn is associate professor of political science at the University of Colorado–Colorado Springs. Martha Derthick is professor emerita of government at the University of Virginia.