Friday, April 13, 2018

Amid legal challenge, education officials want rule change for charter school construction money

DANIEL DUCASSI Politico Florida 04/13/2018

TALLAHASSEE — Florida education officials are looking to change the rules for determining which charter schools can get access to public construction funding. At the same time, they’re facing litigation related to those same rules brought by a Florida charter school network.

Florida Department of Education spokeswoman Audrey Walden claimed the department’s proposed changes "are mostly technical and conform to changes in statute.” But Walden refused to specify what changes in statute required the department’s proposed changes to its rules. While Walden did cite FL HB7069 (17R), a broad and controversial education law signed in 2017, as part of why the changes were needed, she would not elaborate on what provisions in the law require the proposed rule changes.

She also cited the recently signed FL HB7055 (18R), another controversial omnibus K-12 measure pushed by House Speaker Richard Corcoran, but that law doesn’t take effect until July. That bill is not mentioned in the department’s official rule development notice, which asserts the purpose is “to conform to HB 7069.” Again, Walden refused to point to any particular changes in the bill that require the changes DOE is proposing to its rule.

"You should be able to compare the track changes [in the rule] to the law,” Walden told a POLITICO reporter.

Some of the changes do appear to track closely with arguments being made in a pending administrative legal challenge dealing with that very eligibility rule. Walden denied any relation.

Charter school network Kids Community College Charter is challenging the state’s denial of capital outlay funding for the network’s elementary school in Orange County.

DOE initially denied the school’s request in October; KCC moved to challenge the decision, but DOE amended its denial in February. The department’s reasoning: The school received two consecutive grades lower than a C, earning a D grade in 2016 and 2017.

But Joy Smith-McCormick, KCC’s attorney, argued in a February email to state education officials that DOE is misapplying its own rules.

She highlights the part of the rule that states, “Beginning in the 2017-2018 school year, a charter school that receives a grade designation of ‘F' or two (2) consecutive grades lower than a ‘C' shall not be eligible for capital outlay funding.” Those grade requirements were added into the rule last year.

Smith-McCormick argues that given that the rule specifies “beginning in the 2017-2018 school year,” DOE should not be looking back at school grades before that school year.

She wrote, "the rule’s language seems to prepare schools of the funding consequence beginning with the school grade designation for the 2017- 2018 school year. There is no language indicating a determination being made using previous years’ school grades to render schools ineligible for funding for the 2017-2018 school year."

The draft rule released by the department this week would eliminate the references to particular school years in the line Smith-McCormick cites, along with date references for similar lines, removing any ambiguity about when DOE should start counting.

Walden denied any of the the changes were related to the litigation, and declined to comment on the litigation itself.

Smith-McCormick wrote in an email to POLITICO that the proposed amendment may be an attempt by the department to patch an unintended hole in its rule: “The pending changes could be to address the Department of Education's apparent intent to apply [the 2017] changes for eligibility to the funding charter schools should be receiving for this school year," but aren’t receiving because DOE has declared them ineligible under those changes.

Though she declined to comment on the KCC case specifically, she added that DOE’s application of the changes “is having an unexpected financial impact” on some charter schools.

The 2017 changes were themselves the subject of an administrative legal challenge, when the Florida Association of Independent Public Schools challenged the rule’s validity last year. An administrative law judge ultimately declared the rule valid.

An appeal of that decision is pending before the First District Court of Appeal in Tallahassee. Two schools in that case are similarly affected by the rule.

Other proposed changes in the draft rule released this week would allow for more flexibility on where charter schools can get their accreditation from and when it comes to meeting the “expanded feeder chain” requirement in law.

The changes would also explicitly mandate that school districts follow the state law requiring they distribute certain property tax money to eligible charter schools for capital outlay purposes. That requirement was part of H.B. 7069, but though the rules don’t yet echo that statutory requirement, major Florida school districts say DOE has already been bringing down the hammer in compelling districts to comply.

And contrary to Walden’s claims, the proposed language does not appear to incorporate or interpret in any detail a significant legislative reworking of those provisions under H.B. 7055, other than a generic mandate that districts distribute the money in accordance with the statute.

The department is holding a workshop on the rule April 26, beginning at 10 a.m., via conference call.

A hearing in the KCC case is scheduled for 9:30 a.m. April 30 by video teleconference in Tampa and Tallahassee.