Beware of Educational Blackmail: How Can We Apply Lessons from Environmental Justice to Urban Charter School Growth?
By
By
Preston C. Green III[1]* & Chelsea E. Connery[2]**
This Article explains how environmental justice principles can be used in litigation and legislation to enable minority families in urban communities to benefit from charter schools while at the same time protecting against the dangers posed to their school systems and children. In Part II, we explain how environmental justice concepts are designed to protect against environmental blackmail, which is the promise of economic benefits made by polluting companies in exchange for extreme risks to the health of workers and communities where toxic sites are located. In Part III, we describe how a similar form of blackmail may be occurring in urban charter schools—a phenomenon we have coined “educational blackmail.” In Part IV, we analyze environmental justice litigation and charter school litigation. We also assess the extent to which plaintiffs can use environmental justice concepts to address the expansion of urban charter schools. Finally, we examine environmental justice laws to determine how urban school districts and students can utilize the charter school statutes and regulations to better protect themselves against harm.
Charter schools are publicly funded schools that are operated by independent groups.[3] Charter schools are exempt from many laws that apply to traditional public schools.[4] Forty-four states and the District of Columbia have charter school legislation.[5] There are more than 7,700 charter schools that serve about 3.4 million students.[6] Charter schools make up about 7.2% of the public-school population.[7]
Charter schools have proven to be popular with Blacks and Latinx within the United States.[8] For example, 2020 poll results from the pro-charter school group Democrats for Education Reform found that 58% of Black Democratic voters had favorable opinions of charter schools while 31% had a negative view.[9] The results for Latinx Democratic voters were similar (52% positive, 30% negative).[10] In contrast, only 26% of White Democratic voters had a favorable view of charter schools while 62% had negative views.[11] Citing these statistics, along with research claiming to show the academic benefits of charter schools for urban communities, supporters of charter schools have called for urban charter school expansion.[12] However, these assertions about academic benefits are debatable.[13] Even if these claims are true, urban charter school expansion poses substantial risks that could become untenable if they are not adequately addressed.[14] These dangers include increased strain on financially stressed districts, predatory real estate deals, and the loss of student rights.[15]
In our search for a legal framework that enables urban communities to take advantage of the purported benefits of charter schools while also mitigating the possible hazards, we have concluded that environmental justice law provides such an approach.[16] The Environmental Protection Agency (EPA) defines environmental justice as “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation[,] and enforcement of environmental laws, regulations[,] and policies.”[17] The EPA defines “fair treatment” to mean that “no group of people should bear a disproportionate share of the negative environmental consequences resulting from industrial, governmental[,] and commercial operations or policies.”[18] Environmental justice law has developed around the principle of reducing the negative impact of polluting facilities.[19] By learning from the lessons of environmental justice, legal strategies can be developed to reduce the negative aspects of urban charter school growth.
This Article explains how environmental justice principles can be used in litigation and legislation to enable minority families in urban communities to benefit from charter schools while at the same time protecting against the dangers posed to their school systems and children. In Part II, we explain how environmental justice concepts are designed to protect against environmental blackmail, which is the promise of economic benefits made by polluting companies in exchange for extreme risks to the health of workers and communities where toxic sites are located. In Part III, we describe how a similar form of blackmail may be occurring in urban charter schools—a phenomenon we have coined “educational blackmail.” In Part IV, we analyze environmental justice litigation and charter school litigation. We also assess the extent to which plaintiffs can use environmental justice concepts to address the expansion of urban charter schools. Finally, we examine environmental justice laws to determine how urban school districts and students can utilize the charter school statutes and regulations to better protect themselves against harm.
A major goal of the environmental justice movement is to counter the dangers posed by environmental blackmail.[20] This term refers to the corporate practice of convincing minority communities to accept the siting of hazardous waste facilities in exchange for increased employment opportunities.[21] Despite the promise of economic benefits, minority communities do not always benefit from these arrangements.[22] For instance, residents from the immediate locale may fail to obtain employment from the facility.[23] Instead, these jobs may go to residents of distant commuting communities.[24] Also, host communities have generally not obtained significant reimbursements from industries in exchange for the burdens posed by the facility.[25]
Robert Bullard, who is frequently referred to as the “Father of Environmental Justice,”[26] has asserted that Black workers are susceptible to environmental blackmail because of their disproportionate representation in service industries where they can be easily replaced.[27] According to Bullard, polluting industries played on this susceptibility to locate toxic facilities in the southern United States.[28] During the 1970s, this region became a major growth center that attracted new industries, including electronics, defense, and aerospace contracting.[29] However, growth was uneven.[30] Predominantly Black communities could not attract clean industries that required highly skilled workers.[31] In their desperation for economic advancement, community leaders instead sought to attract polluting industries by relaxing the enforcement of environmental laws.[32] Consequently, many industrial firms saw these impoverished areas as “ripe for exploitation.”[33] Thus, environmental blackmail directly contributed to these neighborhoods’ acceptance of health risks that were unacceptable to White communities.[34]
A similar form of environmental blackmail may be occurring in urban, minority neighborhoods with respect to charter school growth. We call this occurrence educational blackmail. Like the Black communities in the southern United States who took a chance on polluting industries, urban communities may be vulnerable to unscrupulous charter school operators. Because of their dissatisfaction with public schooling, urban communities are willing to take a chance with charter schools.[35] However, there is no guarantee that urban communities will benefit from this educational reform. Additionally, they may be exposing themselves to significant risks that come with charter school expansion. The remainder of this Part discusses the attraction that urban communities have to charter schools and the risks they pose. These risks, including increased strain on financially stressed districts, predatory real estate deals, and the loss of student rights, will be discussed in greater detail in Section B.
The research of Stephanie Farmer and associates supports the assertion that urban communities are susceptible to the siren call of charter schools.[36] Their study found that charter schools in Chicago tended to open in Black neighborhoods with declining enrollment instead of more highly populated communities, which would have been more financially efficient for the city school district.[37] While their research did not attempt to determine why charter schools were located in low-demand markets,[38] Farmer and associates offered an explanation that was remarkably similar to Robert Bullard’s analysis on environmental blackmail.[39] According to Farmer and associates, supporters of market reform wished to locate in “politically expedient neighborhoods where parents would be more receptive (and less politically resistant) to marketized charter schools.”[40] Black parents and other residents in these less populated Chicagoan neighborhoods welcomed charter schools because of the state’s failure to provide quality public schooling.[41] Market reformers bolstered support for charter schools in these Black neighborhoods through a massive public relations campaign led by philanthropic foundations and pro-charter community organizations.[42] As a result of this interplay, charter schools expanded in ways that could jeopardize the fiscal stability of the school district.[43]
Supporters of charter school expansion in urban communities are also attempting to gain support by citing research which purportedly shows the educational benefits of charter schools for urban students.[44] For example, an article titled The Case for Urban Charter Schools, published by the Thomas B. Fordham Institute, begins with the sweeping claim that “the evidence for expanding charter schools in urban areas is stronger than ever.”[45] Authors David Griffith and Michael Petrilli go on to argue that charter schools produce higher academic gains, particularly among low-income Black and Latinx students than traditional public schools and positively impact other “long-term, real-world outcomes.”[46] Similarly, the National Alliance for Public Charter Schools publicized a study claiming to show that charter school students—especially Black and low-income students—outperformed traditional public school students on the National Assessment of Educational Progress (NAEP).[47] Finally, in a New York Post article with the triumphant title, Case Closed: Charter Schools Deliver More Education ‘Bang’ for the Buck, Patrick Wolf and Corey DeAngelis promote their study of charter schools in eight cities, claiming that charter schools are more productive than traditional public schools in terms of “learning per education dollar spent.”[48]
Upon closer examination, however, the research cited by these articles paints a picture that is much less straightforward. Indeed, like the promises for jobs often made in environmental blackmail, the claims of academic benefits may be illusory. For example, the Thomas B. Fordham Institute’s article cited a 2013 working paper by Will Dobbie and Roland Fryer that examined the long-term academic outcomes of students who attended the Promise Academy, a charter school located in the Harlem Children’s Zone (HCZ).[49] The study compared the outcomes of students who were selected by lottery to attend the school versus students who were not selected.[50] Students who won the lottery were more likely to enroll in two-year and four-year colleges.[51] According to Dobbie and Fryer, these data suggest that high-performing schools may be sufficient to increase the college enrollment of poor urban students.[52] However, in a subsequent study from the same data, the authors found that the charter school students’ traditional public school counterparts “have almost identical numbers of total semesters enrolled in college”[53] and that “control students eventually catch up and make the treatment effects on college enrollment insignificant.”[54] To choose the earlier working paper instead of the more recent peer-reviewed article is a misleading presentation of their research, which overall indicates—at best—mixed impacts of charter schools on college enrollment.
The National Alliance for Public Charter Schools blog focuses on a study by M. Danish Shakeel and Paul E. Peterson.[55] This study used NAEP reading and math test results for seven different cohorts of fourth and eighth graders to compare performance trends in the charter and traditional public-school sectors between 2005 and 2017.[56] The study attributed the relative differences in results between charter schools and traditional public schools to charter effectiveness.[57] However, this conclusion is unwarranted because the “NAEP does not track the performance of individual students over time.”[58] There are several other factors that could contribute to the differences in school-level patterns of academic performance. Therefore, no causal inferences about the relative effectiveness of charter schools and traditional public schools in raising students’ achievement scores can be drawn.[59]
The New York Post article focuses on two reports by Corey DeAngelis and associates: the first published in 2018[60] and the second in 2019[61] (an update to the original article). Both studies rely on highly contested and oversimplified methods for computing cost-effectiveness.[62] While there are several methodological flaws that undermine the reports’ validity, the overarching issue is that the reports’ findings are merely descriptive and not causal.[63] The lack of causality means that, even if there is evidence of charters having higher scores per $1,000 invested, it cannot be said that this is due to them “do[ing] a better job educating similar students . . . at a lower cost”—it could just be due to the “characteristics of students attracted to the charter school sector.”[64]
The other similarity between environmental blackmail and educational blackmail is the assumption of untenable risks. In the case of environmental blackmail, the risks included the health of the community.[65] In the case of charter school expansion, the dangers include increased strain on financially stressed urban districts, predatory real estate deals, and loss of student rights.[66] We elaborate on these hazards in the remainder of this Part.
When a student enrolls in a charter school, the public school that the student previously attended no longer receives the per-pupil funding for that student.[67] Instead, that funding is shifted to the charter school.[68] Supporters of charter schools claim that this loss of funding causes no harm to school districts because the per-pupil amount of resources for the remaining students stays the same.[69] However, districts must use the remaining funding to pay for fixed costs that cannot be easily adjusted, such as administration, retiree health care benefits, and debts.[70] Districts must also pay for additional costs associated with charter schools, including “transportation, special education evaluation, and health services.”[71] Several studies have attempted to determine the fiscal impact of charter schools on school districts.[72] Controlling for district size, Gordon Lafer found the net loss to school districts for every student who transfers to a charter school ranged from $3,100 to $6,700.[73]
Although charter school expansion has caused school districts to experience financial stress, a study of eleven city school systems found that these systems managed to reduce overhead enough to maintain reasonable class sizes and avoid inefficiently small schools.[74] However, this report also observed that districts experiencing both rapid declines in student population and “particularly inequitable, under-resourced school finance systems have faced substantial annual deficits.”[75]
The experience of the Chester Upland school district, a low-income, predominantly Black district south of Philadelphia, is illustrative. This district has been in financial recovery status since 2012.[76] In 2015, Chester Upland faced a $22 million deficit, which the state governor alleged could have risen to $46 million without state intervention.[77] Pennsylvania’s charter-school funding formula contributed significantly to the district’s financial problems.[78] The state’s school finance system required Chester Upland to give charter schools $40,000 per special education student—regardless of the actual cost to educate the student—which was twice the amount the district spent on its own students with special education needs.[79] The charter schools then gamed the system by under-identifying students for high-cost special education services while over-identifying students in low-cost categories.[80] In a plan to save the financially troubled school district, the governor sought to lower the special education spending from $40,000 to $16,000.[81] A trial court judge rejected this proposal, observing that the plan would not restore the district to financial stability and that the district still owed the charter schools $8.7 million.[82] The parties eventually agreed to reduce the amount that the district needed to pay to charter school’s special education program to $27,028.72, which was still “a significant hit to the [d]istrict.”[83]
Charter school location decisions can also place great strain on fiscally strapped districts.[84] Farmer and associates identified this problem in Chicago, where charter operators and networks do not have to coordinate their location decisions with the district.[85] Indeed, they determined that 69% of charter schools that opened in Chicago between 2000 and 2015 were in areas with significantly declining public-school enrollment.[86] Additionally, almost 80% of the city’s new charter schools began operation within walking distance of a closed public school during that period.[87] Conversely, charter schools were less likely to open near overcrowded public schools, which would have made more sense for the district.[88] Thus, the fiscal stress caused by the charter schools’ location decisions could have weakened the district’s ability to reduce overcrowding in the city’s predominantly Latinx schools.[89] To avoid creating further financial strain, the authors recommend that charter school authorization be connected to a district’s planning process.[90]
The second risk posed by charter school expansion is predatory real estate deals.[91] Charter schools frequently pay unreasonably high rates for facility leases and land purchases.[92] For example, a 2019 report from the Ohio auditor general revealed that three charter school management companies spent more than twice as much on facilities than was typical for charter schools in the state.[93] The report also conducted a market analysis of nine charter schools operated by these three management companies.[94] According to this analysis, seven schools paid rent that was significantly above market rate, “rang[ing] from $65,560 to $867,170, with a median of $371,495.”[95] Charter school operators obtain these windfalls by leasing property to their subsidiaries.[96] The various governmental gatekeepers at the state and federal level do not have the tools to provide proper oversight over these related-party transactions.[97]
The experience of New Jersey’s charter schools indicates that urban communities may be particularly vulnerable to these predatory real estate deals because of lax supervision.[98] Unlike the state’s traditional public schools that receive public support for facilities, New Jersey’s urban charter schools must “rely on complicated real estate transactions that involve federal tax subsidies.”[99] An investigative report showed how some unscrupulous charter school operators took advantage of this complexity to gouge the charter schools they ran.[100] According to this report, these operators used federal funding to establish networks of privately owned facilities.[101] These operators then charged charter schools rent far exceeding building costs—up to 80%—which charter schools paid with taxpayer funding.[102] Some schools were covering twenty year, interest-only mortgages that started at 10% and increased every year, with one reaching higher than 16%.[103] Another charter school was paying $25 million for an interest-only loan for a building that was bought for $10 million.[104] The report further noted that the state department of education provided no oversight over these arrangements, claiming that it did not have the authority to review lease agreements before they were signed.[105]
If left underregulated, these exploitative real estate deals could eventually restrict the ability of urban school districts to hold charter school operators accountable as well.[106] Because the facilities are privately owned, a district can close a school only if it is willing to build a new facility for its displaced students.[107] As charter school management organizations expand into chains of privately owned schools, Gordon Lafer warns they pose the risk of being “too big to fail.”[108] In other words, these chains may reach a point where school officials “can no longer afford to hold them accountable, because they cannot afford to close and replace them.”[109] This concern may be especially true for urban school districts that already endure financial hardship.
The final risk that charter school expansion poses to urban communities is the possible loss of student rights.[110] Although charter schools are commonly referred to as “public schools,” courts have on three occasions rejected claims that charter schools have to provide student rights protections afforded to students attending traditional public schools.[111] In Scott B. v. Board of Trustees of Orange County High School of Arts, a California appellate court held that statutory requirements for student expulsions did not apply to charter schools.[112] The court observed that the state’s education code generally exempted charter schools from laws applying to public schools with several exceptions.[113] The expulsion statute was not included among those exceptions.[114]
In I.H. v. Oakland School for the Arts, a federal district court dismissed a charter school student’s 42 U.S.C. § 1983 claim for violation of the Equal Protection Clause because the charter school was not a state actor.[115] The court relied on Caviness v. Horizon Learning Center, a Ninth Circuit case that held an Arizona charter school was not a state actor for employment purposes.[116] The Caviness court denied the assertion that charter schools had to provide due process protections merely because Arizona law defined charter schools as “public schools.”[117] Similarly, the district court reasoned it was doubtful that California charter schools were state actors in a student-brought equal protection claim merely because state law declared that charter schools are “public schools.”[118]
Finally, in Peltier v. Charter Day School, Inc., the Fourth Circuit held that a charter school was not a state actor for Equal Protection Clause purposes.[119] Therefore, a North Carolina charter school’s dress code, which required girls to wear skirts, was not subject to this constitutional provision.[120] The court also cited the Caviness case, observing that North Carolina’s designation of charter schools as “public schools” was insufficient for concluding that the charter school was a state actor.[121] The court further noted that the charter school statute kept the state from being involved with the charter school’s day-to-day operations, particularly the dress code.[122] This decision was vacated, and the Fourth Circuit granted a rehearing en banc to decide whether North Carolina’s charter schools are state actors under the Equal Protection Clause.[123] It had not issued a ruling at the time of this Article’s publication.[124]
Bruce Baker laments that discussions over charter school expansion rarely consider whether “children and families should be required to trade constitutional or statutory rights for the promise of the possibility of a measurable test score gain.”[125] Certainly, the Peltier case is especially worrying for Black girls with Afrocentric hairstyles who are thinking about enrolling in a charter school. Charter schools are notorious for using vague language in their dress codes—for example, requiring hairstyles not to “‘interfere with the learning process,’ or be ‘faddish,’ or ‘inappropriate’”—to prohibit Black girls from wearing braids, dreadlocks, Afro-puffs and twists.[126] One instance occurred at Mystic Valley Regional Charter School, a suburban charter school with a dress code that banned “drastic or unnatural hair colors or styles” as well as “hairstyles that might be ‘distracting’ to others.”[127] After the school imposed disciplinary sanctions on two Black girls for violating the policy, the ACLU of Massachusetts filed a complaint with the state department of education, stating that the hair policy was “especially harmful to female students of color” and had been “enforced in a disparate manner against them.”[128] The charter school decided to suspend the policy for the remainder of the school year.[129]
The lack of due process protection is also worrying because of the prevalence of “no-excuses” charter schools.[130] No excuses charter schools share several traits including extended school days and years, frequent student assessments, emphasis on basic skills, and a focus on attending college.[131] These schools also have strict disciplinary systems.[132] They generally prohibit students from talking quietly in hallways, entering and leaving classrooms on their own, keeping backpacks at their desks, or leaving their seats without permission.[133] While no-excuses schools have been lauded for the achievement gains of students,[134] they have also received criticism for their high suspension rates.[135] For example, in 2019, Massachusetts education officials ordered Roxbury Prep, a no-excuses charter school that is part of the Uncommon Schools management company, to lower its suspension rates.[136] The state took this step because Roxbury Prep had suspended 21.1% of its students the prior school year.[137] This rate was much higher than the state average of 2.9%.[138] Because of suspension rates like Roxbury Prep’s, urban students should be concerned about attending no-excuses charter schools.
Environmental justice law provides a legal framework for addressing the dangers of environmental blackmail. One tool for attaining environmental justice is litigation.[139] Similarly, plaintiffs have sued to prevent or mitigate the negative effects of urban charter school growth.[140] This Part analyzes environmental justice litigation and then briefly discusses charter school litigation, and the lessons that can be learned for those pursuing charter school “educational justice” lawsuits.
Unfortunately for plaintiffs, federal environmental justice litigation has generally resulted in few victories.[141] Originally, plaintiffs claimed that the actions of polluters violated the equal protection or due process rights under the Fourteenth Amendment of Black residents living in predominantly Black neighborhoods.[142] These challenges failed because plaintiffs could not prove that the government had acted with discriminatory intent when granting the permits at issue in the litigation.[143] Plaintiffs then based their claims on Section 601 of Title VI of the Civil Rights Act of 1964, which prohibits recipients of federal funds from discriminating against racial groups.[144] These cases also failed because plaintiffs could not establish discriminatory intent.[145]
For a while, it appeared that plaintiffs could mount environmental justice challenges under Title VI’s regulatory provisions that prohibit recipients of federal funding from engaging in policies that have a racially disparate impact.[146] However, the Supreme Court closed this avenue in Alexander v. Sandoval[147] by holding that private parties could not bring lawsuits under this provision.[148]
Because of the failures of constitutional and civil rights litigation, plaintiffs shifted their litigation focus to the National Environmental Protection Act (NEPA).[149] Although the NEPA contains no environmental justice provisions, then-President Bill Clinton issued Executive Order 12898 in 1994, which requires every federal agency to “make achieving environmental justice part of its mission by identifying . . . disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minority populations and low-income populations.”[150] The Council on Environmental Quality (CEQ), the agency responsible for developing regulations to assess the environmental impact of proposed projects, developed guidance explaining the role that environmental justice can play in agency decision making.[151] However, environmental justice claims under the NEPA have failed because the statute does not require a particular outcome based on the assessment.[152]
In contrast, state environmental justice statutes may provide a more promising tool for environmental justice litigation.[153] The key case for showing this promise is Friends of Buckingham v. State Air Pollution Control Board.[154] In this case, the plaintiffs challenged the Virginia Air Pollution Control Board’s granting of a minor source permit for a compressor station that was linked to a natural gas pipeline.[155] The compressor would be in Virginia’s historic Black community of Union Hill in Buckingham County.[156]
The Fourth Circuit ruled that the Board failed to perform a proper environmental justice analysis as required by the state’s Commonwealth Energy Policy, which provided that the “development of new, or expansion of existing, energy resources or facilities does not have a disproportionate adverse impact on economically disadvantaged or minority communities.”[157] One problem was that the Board failed to determine whether Union Hill was an environmental justice community.[158] This label mattered because the Board would then have to consider the greater prevalence of asthma and other health issues in Black populations.[159] Instead, the Board relied on National Ambient Air Quality Standards (NAAQS) and state emissions standards.[160] The Board’s failure to consider the disparate impact led to a flawed analysis.[161] As the court explained, “[E]nvironmental justice is not merely a box to be checked.”[162]
Friends of Buckingham shows the potential of state law for initiating environmental justice lawsuits.[163] The lawsuit was successful because of the strong language of the state’s Commonwealth Energy Policy.[164] If this case were decided under prior case law, the agency would have probably prevailed because there only needed to be evidence that there was some consideration of the environmental justice implications before granting the approval.[165] Two Board members had stated on the record that they had assumed that Union Hill was an environmental justice community.[166] Because of this assumption, there would have been “some” consideration of environmental justice.[167] However, the Commonwealth Energy Policy required the Board to do more than merely assume.[168] Thus, the Board also had to conduct an analysis that was tailored to the environmental justice community.[169]
Similar to environmental justice litigation, challenges to charter school policies and practices based on federal anti-discrimination provisions will probably fail. Villanueva v. Carere illustrates the difficulty of making Equal Protection Clause challenges.[170] In this case, Latinx parents objected to a Colorado school district’s decision to close two neighborhood elementary schools and open a charter school.[171] When the public schools closed, some students had to ride buses or cross busy intersections to attend new, overcrowded schools.[172] The Tenth Circuit held that the district’s decision did not violate the Equal Protection Clause because the plaintiffs had failed to show that discrimination was a motivating factor for the district’s actions.[173] Title VI’s disparate impact challenges are also unavailable for plaintiffs in the charter school arena because of previously discussed Sandoval case.[174]
Therefore, plaintiffs must base their legal challenges on state education statutes and regulations.[175] If these laws contain strongly worded provisions like Virginia’s Commonwealth Energy policy, urban plaintiffs can prevail in litigation challenging practices by charter school operators and related parties that harm their students and school districts.[176] Of the three categories of potential risks we identified in Part III, we only found decisions relating to student rights. The outcomes of these cases went against the plaintiffs because the state laws failed to provide sufficient protections for students.[177] This outcome suggests that parents, community groups, and civil rights organizations should lobby legislatures to strengthen the educational justice provisions of charter school statutes and regulations.
Indeed, this happened in California in response to the Scott B. decision, which found that charter schools did not have to provide the same level of due process protections as traditional public schools.[178] In response to intensive pressure,[179] California enacted AB 1360, which strengthened due process requirements for students attending charter schools.[180] Charter schools must now comply with federal and state constitutional requirements for suspensions and expulsions.[181] The statute also provides procedures for suspensions and expulsions.[182] For suspensions of fewer than ten days, charters must provide oral or written notice of the charges and give the student the chance to present their side of the story.[183] For suspensions of ten or more days, charters must provide timely, written notice of the charges and an explanation of their basic rights.[184] Furthermore, charters must provide a hearing judged by a neutral officer at which the student can present testimony, evidence, and witnesses; cross-examine adverse witnesses; and bring legal counsel or an advocate.[185] Thus, the passage of AB 1360 shows that persons and groups interested in improving charter school protections can successfully advocate for change.
In the environmental litigation context, plaintiffs have also had limited success before legislative agencies at the federal level.[186] Eileen Gauna provided a cogent explanation for this ineffectiveness.[187] She sought to determine how much environmental justice figures into the EPA’s permitting process.[188] She answered this question by analyzing several important permit decisions by the Environmental Appeals Board (EAB), the final decision maker on administrative appeals issued by the EPA’s regional directors.[189] She found that permit writers were reluctant to impose significant permit decisions or deny permits because of environmental justice considerations.[190] The EAB also avoided making environmental justice inquiries by applying a deferential review of permit decisions.[191] To remedy this problem, Gauna advised the EPA to “provide more specific guidance concerning measures that can be taken to address environmental justice considerations.”[192]
In the remainder of this Part, we analyze the extent to which charter school statutes protect urban communities from the dangers of increased strain on financially stressed districts, predatory real estate deals, and loss of student rights. We have accomplished this task by performing a Westlaw search of state statutes and regulations. We also apply Gauna’s admonition that the legislative and regulatory tools provided for charter school oversight must have the power to take appropriate action.
We have explained how charter school proliferation can cause severe fiscal strain to urban school districts that are underfunded. In this Subpart, we examine the extent to which charter school laws protect school districts from fiscal harm. Table 1 displays those states that require some consideration of the fiscal impact to districts. Six states require authorizers to consider the fiscal or financial impact of the proposed charter school.[193] Authorizers decide whether to open a charter school, supervise the schools for which they are responsible, and determine whether to revoke or renew charters.[194] Various entities may serve as authorizers including “school districts . . . state education agencies, independent boards, universities, mayors and municipalities, and non-profit organizations.”[195] Three states require authorizers to determine whether the proposed charter school will have an “adverse effect[]” or “adverse impact” on school districts where the school will be located.[196] Two states require authorizers to consider whether the proposed charter school will be “economically sound for the charter school and the school district.”[197]
Table 1: Jurisdictions That Require Consideration of Fiscal Impact of Proposed Charter School on School District[198]
| Type of Provision | Jurisdiction |
| Must Consider Fiscal or Financial Impact | California,[199] Delaware,[200] New York,[201] Rhode Island,[202] Tennessee,[203] Wisconsin[204] |
| Must Determine Whether Charter School Will Have Adverse Effect or Impact | New Mexico,[205] Oregon,[206] South Carolina[207] |
| Requires Consideration of Whether School Will Be Economically Sound for the Charter School and District | Illinois,[208] Wyoming[209] |
However, three states—California, Kentucky, and Missouri—go further than the provisions listed in Table 1 by requiring additional consideration for districts that are in financial stress. California’s requirement apply to districts that are “not positioned to absorb the fiscal impact of the proposed charter school.”[210] Charter schools proposed in such districts are “subject to a rebuttable presumption of denial.”[211] This provision covers districts that have a qualified interim certification and can show that approving the school would cause the district to receive a negative certification.[212] Districts that have a negative interim certification or are under receivership also qualify.[213]
Kentucky empowers school district superintendents to provide evidence objecting to the approval of charter school applications that may cause “substantial hardship” to district students who would not attend the charter school.[214] Authorizers must review the superintendents’ evidence before approving such applications.[215] This term means “significant, unique, and demonstrable economic . . . impact on a district that impairs the district’s ability to continue to successfully meet the requirements of educational programs of services for the district’s students.”[216]
Missouri has imposed additional protection for districts that have received provisional accreditation because of financial stress or hardship.[217] The state board of education must vote to grant the charter “during the third consecutive school year after the designation of provisional accreditation.”[218] The authorizer is limited only to the local school board or an authorizer who has met state accountability and performance standards.[219] These provisions are good because they give the district a three-year buffer to recover from financial difficulty and take steps to ensure they are supervised by responsible authorizers.
Other states should follow the lead of these three states and create similar protections for fiscally strapped urban school districts. Such approaches would enable charter school authorizers to scrutinize charter school proposals in fiscally stressed urban districts to determine whether they can cope with the addition of charter schools.[220]
In Part III of this Article, we explained how urban charter schools have been subject to predatory real estate deals through complicated related-party transactions. These deals have caused them to pay leases and rents that are significantly in excess of reasonable market rates for facilities that the public will never own.[221] In the case of New Jersey, state authorizers failed to police these deals because they claimed not to have this responsibility.[222] Our review of charter school laws provides some guidance for states that wish to avoid similar fates.
Three states specifically require charter school gatekeepers to take explicit steps to ensure that lease agreements are not exploitative.[223] Maine requires charter school authorizers to review leases between charter schools and education service providers to “align with market rates.”[224] Ohio prohibits charter school governing boards from signing a lease until an independent real estate professional verifies that the lease was “commercially reasonable.”[225] Utah requires charter schools to submit leases and lease purchases to the school’s authorizer and an attorney for review before entering into these agreements.[226] Other states, too, should clearly identify who has the responsibility to review potential lease agreements to ensure that urban school districts do not waste their resources.
We also advise states to be alert for lease proposals that could eventually lead to school districts’ losing the ability to exercise accountability over failing charter schools. As we noted in Part III, Gordon Lafer warned that charter school chains in urban communities can become “too big to fail” because districts cannot afford to pay the construction costs for new buildings.[227] If a charter-school proposal poses this danger, the law should empower the authorizer to reject it.
Finally, we have explained how urban charter school students may be unwittingly signing away their constitutional and statutory rights when they enroll in a charter school. In several decisions, courts have found that charter-school students do not have the same constitutional and statutory student rights protections that traditional public-school students receive.[228] To remove all doubt, charter school laws should clearly state that charter school students have the same rights as traditional public-school students. Unfortunately, only Rhode Island provides such protection.[229] Its law declares, “All students and prospective students of a charter school shall be deemed to be public school students, having all the same rights under federal and Rhode Island law as students and prospective students at a non-chartered public school.”[230] We think all charter school laws should have similar language.
At a minimum, students attending charter schools should have the same level of anti-discrimination and due process protections enjoyed by their traditional public-school counterparts. Black girls attending charter schools especially need equal protection because of the prevalence of dress codes that have been used to punish them for wearing cultural hairstyles. Robust due process is also essential because of the ubiquity of no-excuses charter schools that are quick to suspend and expel their students.
Table 2 identifies jurisdictions that give charter school students the same protections against discrimination that apply to traditional public schools. We looked for such language because of the Fourth Circuit panel decision in Peltier v. Charter Day School, Inc., which was subsequently vacated for en banc consideration.[231] The panel held that the Equal Protection Clause did not apply to North Carolina charter schools even though the state law prohibits charter schools from “discriminat[ing] against any student on the basis of ethnicity, national origin, gender, or disability.”[232] Arguably, the panel could have inferred from that language that the state legislature intended charter schools to comply with the Equal Protection Clause. However, the panel failed to do so, possibly because the statutory provision failed to make this intention clear. While the Fourth Circuit may eventually rule differently based on this statutory language, this conclusion is not guaranteed. Therefore, state legislatures must explicitly state their expectation that charter schools provide the same level of anti-discriminatory protections as those afforded to their public-school counterparts.[233]
Eight jurisdictions subject charter schools to constitutional provisions prohibiting discrimination based on race, sex, and national origin.[234] Iowa requires charter schools to follow federal and state laws prohibiting discrimination on these bases.[235] Six states require charter schools to comply with all federal and state anti-discrimination laws.[236] Six states prohibit charter schools from discriminating in a manner that would be illegal if done by a traditional public school.[237] Six states require charter schools to follow the same state law protections against discrimination that apply to traditional public schools.[238] Finally, five states specifically extend their protections against discrimination to protective hairstyles including braids, locks, and twists.[239] Jurisdictions that want to protect Black girls should not only impose public-school anti-discrimination provisions on charter schools, but also protect charter schools from disciplining them because of their cultural hairstyles.
Table 2: Jurisdictions That Give Students Attending Charter Schools the Same Anti-Discrimination Protections That Traditional Public-School Students Receive
| Type of Provision | Jurisdiction |
| Subject Charter Schools to Constitutional Provisions Prohibiting Discrimination Based on Race, Sex, and National Origin | Colorado,[240] Idaho,[241] Illinois,[242] Indiana,[243] New Mexico,[244] South Carolina,[245] Tennessee,[246] Wyoming[247] |
| Require Charter Schools to Comply with Federal and State Laws Prohibiting Discrimination Based on Race, Sex, and National Origin | Iowa[248] |
| Require Charter Schools to Comply with All Federal and State Anti-Discrimination Laws | Arkansas,[249] Maryland,[250] Nevada,[251] New Hampshire,[252] New Jersey,[253] Oregon[254] |
| Prohibit Charter Schools from Discriminating in Manner That Would Be Illegal if Done by Traditional Public School | Alabama,[255] Georgia,[256] Kentucky,[257] Maine,[258] Mississippi,[259] West Virginia[260] |
| Require Charter Schools to Follow State Laws Prohibiting Discrimination That Apply to Public Schools | Connecticut,[261] Florida,[262] Minnesota,[263] New York,[264] Pennsylvania,[265]Washington[266] |
| Extend Hair Protection to Protective Hair Styles (e.g., braids, locks, and twists) | Colorado,[267] Illinois,[268] New Mexico,[269] New York,[270] Oregon[271] |
Table 3 identifies jurisdictions where charter schools must give their students the same level of due process for suspensions and expulsions that traditional public-school students receive. California and New Hampshire require charter schools to comply with federal and state due process requirements.[272] Fifteen states compel charter schools to follow state due process laws that apply to traditional public schools, while the District of Columbia imposes municipal due process requirements on the city’s charter schools.[273] Other jurisdictions need to do likewise.
Table 3: Jurisdictions That Require Charter Schools to Provide Students the Same Due Process Protections as Traditional Public Schools
| Type of Provision | Jurisdiction |
| Charter School Must Comply with Federal and State Constitutional Due Process Requirements | California,[274] New Hampshire[275] |
| Charter Schools Must Comply with State Due Process Laws | Colorado,[276] Delaware,[277] DC,[278] Illinois,[279] Louisiana,[280] Massachusetts,[281] Missouri,[282] Nevada,[283] North Carolina,[284] Oklahoma,[285] Pennsylvania,[286] Rhode Island,[287] Tennessee,[288] Utah,[289] West Virginia,[290] Wisconsin[291] |
We understand that urban communities are engaged in charter school expansion because of their dissatisfaction with traditional public schools. However, they must guard against falling into a trap where they assume undue risks in exchange for academic benefits that may not actually occur. To avoid this danger, we have advocated in this Article for the adoption of legal protections based on environmental justice principles. Taking such actions can help keep urban communities from becoming the victims of educational blackmail.