Utah Board of Education member calls attempt to repeal board authority over new charter schools ‘unconstitutional’

Members of the Utah Board of Education were divided Thursday over a bill before the state Legislature that repeals their authority to approve or deny new charter schools in the state.

HB313, would require that the board establish rules and policies for those authorizing charter schools, but would remove the Board of Education as the final vote before a new charter is approved.

Board member Carol Lear objected to the measure, saying it violates the Utah Constitution, which vests “general control and supervision of the public education system” with the state school board.

“If the state board doesn’t have the authority to approve charter schools, it’s unconstitutional,” Lear said. “Whether we want it or not, we oversee the public education system. And that includes a charter school.”

The bill’s sponsor, Rep. Daniel McCay, R-Riverton, said his intention with the bill is to clarify what is currently an ambiguous approval process.

Under his proposal, the state school board would establish minimum standards for new charters to meet, eliminating some of the guesswork in opening a new school.

“You set up objective criteria, and if you meet them there’s no reason to deny at that point,” McCay said. “You can take away politics, and take away personal feelings about one issue or another.”

A similar measure, sponsored last year by Sen. Diedre Henderson, R-Spanish Fork, drew a favorable vote by the Senate Education Committee, but never reached the Senate floor.

In Utah, most charter schools are authorized by the State Charter School Board, a subsidiary panel to the state Board of Education whose members are appointed by the governor. Charters in Utah can also be authorized by school districts and institutions of higher education.

School board member Joel Wright, a charter school lawyer who previously sat on the State Charter School Board, said eliminating approval of new charters would better allow the Utah Board of Education to focus on statewide priorities.

More than 11 percent of public school students currently attend charter schools, he said, and it will only get more cumbersome for the board to adjudicate new charter applications as that number continues to grow.

“This is going to blow up the state school board at some point if we get down in the weeds with individual charter schools,” Wright said.

School districts are able to open new schools — including charter schools — without the state school board’s approval. And Wright said it’s more appropriate for the state board to “crack down” on those authorizing schools who violate policy rather than individual school campuses.

“This liberates us to focus on the big things,” he said.

Lear said there is a distinction between district schools, overseen by locally elected school boards, and charter schools that are authorized by appointees on the state Charter School Board or college boards of trustees.

And it is unclear, she said, how a rule written by the state Board of Education can be enforced against colleges or universities that authorize charters, as the school board’s authority is limited to grade-school education.

“We don’t have authority to punish anybody at higher ed,” Lear said. “It is inconvenient, especially as our charter numbers have risen. But if the state Board of Education is responsible for the public school system, it must have the ultimate responsibility for all the system.”

Other board members, including Linda Hansen, remarked on recent experiences where charter schools were shut down or reviewed by staff of the state school board for issues related to finances or programming that were seemingly overlooked by the State Charter School Board.

“I’ve seen times when more eyes on [charters] produce better results,” Hansen said.

Utah Charter School Board chairwoman Kristin Elinkowski said her board supports the bill as it is currently written. She said the board’s vetting process for new charters is extensive and thorough, and that it is often redundant that charter applicants also have to pitch their school proposals to a second board after gaining approval.

And what may appear to the Utah Board of Education as overlooked problems, Elinkowski said, are typically situations where the State Charter School Board is working with would-be school administrators to improve.

“I wouldn’t say that they were missed,” she said. “I would say we know we can remedy those before they open.”

McCay said he agrees with the sentiment that more oversight is better than less in the education system. But he disagreed with the notion that the board’s authority over charters is lost simply because they would no longer vote on a school’s application.

“All some would argue is that they’re losing the very beginning,” he said. “A fire is not the spark.”

Legislative staff did not determine that the bill required a constitutional note, used to indicate when a bill may conflict with legal precedent. And McCay said he was “100 percent” confident that he and school board staff can work together to mitigate concerns.

“They obviously have the right to their own counsel and their own opinion and there are ways to settle it,” he said. “My preference, as it has been with all of the education initiatives Ive worked on, is to drive a consensus.”

Angie Stallings, an associate state superintendent for the Utah Board of Education, said she could see how two lawyers could argue both sides of the constitutional question.

“We don’t have precedent for this at the Utah Supreme Court level,” she said.