Attorney: TN charter school law unconstitutional

10:18 AM, Aug 24, 2013   |    comments
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By: Joey Garison, The Tennessean

An attorney for Metro Nashville Public Schools says the decade-old state law that allows charter schools to operate in Tennessee is unconstitutional, perhaps giving local school districts a basis for a major legal fight.

That conclusion came from Washington, D.C., attorney John Borkowski this month in a legal opinion that argues Tennessee's 2002 charter law "seems to impose increased costs on local governments with no offsetting subsidy from the state," which he said violates the Tennessee Constitution.

Borkowski, whom the district has previously tapped for high-profile legal cases, outlined his arguments in an Aug. 14 memo to Metro Director of Schools Jesse Register obtained by The Tennessean. The school board sought his advice in April to consider possible legal challenges to a state bill that would have given the state new power to approve charter schools that local boards of the state's four largest counties, as well as Hardeman County, had denied.

The bill, supported by Mayor Karl Dean, Republican House Speaker Beth Harwell and other charter advocates, died on the final day of the legislative session. In his memo, Borkowski cites three "colorable legal arguments" against the bill, which is expected to be introduced again next year.

Yet he goes much further by questioning the constitutionality of the landmark law that established the funding mechanism for publicly financed, privately led charters in Tennessee.

A section of the Tennessee Constitution says that no law shall impose "increased expenditure requirements on cities or counties" unless the Tennessee General Assembly ensures the state shares those costs.

Under the state's charter school funding formula, the combined state and local per-pupil dollar amount follows students to their new schools. This equates to about $9,200 per student in Nashville.

"The charter school receives all of the state and local per-pupil expenses, while the [local districts] still must cover existing fixed costs," Borkowski wrote, adding: "There does not appear to be any state subsidy to share in these increased costs."

The legal opinion provides fuel for an argument Metro school officials are making routinely of late: that the increase of charters in Nashville comes with a sizable financial toll. Twenty-one are set to operate in Metro by 2014-15, which officials say will cost $61.3 million.

Metro officials have argued the exit of students from traditional schools to charters hasn't reduced the costs of maintaining schools they leave.

Register held a recent executive meeting with board members to discuss the opinion. He also shared it Thursday to representatives from the Coalition of Large School Systems, a lobbying organization composed of the state's five largest school districts.

"When you read the constitutional language there, you can see how it looks like it's applicable," Register said. "Whether we would choose to pursue that line or not is something that our board of education can take up and I think maybe others, at least in the large urban districts, could take up."

Tennessee Education Commissioner Kevin Huffman declined to comment.

"We don't comment on potential or threatened litigation," the education department's spokeswoman Kelli Gauthier said. "Should this evolve to actual litigation, we would work with the Attorney General's office to provide an appropriate response at that time."

Borkowski is a partner at the Washington, D.C.-based law firm Hogan Lovels, where Huffman also practiced law prior to his stint as an executive at Teach For America and his arrival in Tennessee.

Borkowski most recently represented MNPS in the Spurlock v. Fox case in which the district won its defense against allegations of deliberate resegregation following a controversial new student assignment plan passed in 2008.

The leading defendant in that suit, former school board chair David Fox, a charter proponent who is considered a possible 2015 Nashville mayoral candidate, offered a stinging criticism upon learning Metro had distributed the legal memo.

"I don't think that it's a coincidence that they're trying to kneecap charter schools just a few days after the state reported that four of the five Nashville middle schools with the biggest achievement gains are, in fact, charter schools," Fox said.

"MNPS isn't losing revenue because of the state," said Fox, who sent a letter to Harwell on Friday asking her to seek an opinion from Attorney General Robert Cooper on the matters raised in the memo. "It's losing revenue because families are voluntarily choosing to enroll their children in schools run by other management groups."

Though its targeting of the 2002 charter law is the most striking item, the legal opinion is mostly directed at the state authorizer bill that stalled last year.

Borkowski, who specializes in education law, finds three areas for a legal challenge were it to pass: he says it creates an "arbitrary classification" by applying to only a few counties; disproportionately targets minorities; and, like the 2002 charter law, imposes additional costs with no offsetting subsidy.

He also advised Metro to explore equity challenges on the state's funding formula for all public schools, known as the Basic Education Program, which bases funding amounts on a county's "fiscal capacity."

He called it "irrational and inequitable." Because Davidson County has the ability to generate greater tax revenue than smaller counties, it is historically among the lowest in per-pupil state allocations.

Metro and state education officials have been at odds for the past year after the local board opted against approving Great Hearts Academies, a Phoenix-based charter, against the state's wishes. Huffman responded by withholding $3.4 million in funding from Metro as a reprimand.

Metro officials thought they were on the verge of a compromise last session that would ensure "financial guardrails" were added to the authorizer bill to quell fears of an "unfunded mandate." Talks with state officials fell apart, however, and Metro later tapped Borkowski's legal expertise.

Joey Garrison can be reached at 615-259-8236, or on twitter at @joeygarrison.

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