FEATURE
Tennessee's Waltz with Charter Schools When Will the Music Stop? By Caroline Sapp Hudson I. Introduction Charter schools are multiplying in Tennessee. The Tennessee Department of Education encourages this expansion. For example, just this year, the Department of Education overturned Metropolitan Nashville Public Schools’ decision denying Knowledge is Power Program (KIPP) applications to open two new charter schools in Davidson County.1 KIPP appealed to the Department of Education, which private organizations like KIPP can do as a result of the charter school legislation.2 Now, Davidson County has two new charter schools.3 With so many charters popping up, an important question arises: Should the Department of Education be authorizing additional quasi–public corporations when Tennessee’s charter school legislation may ultimately be found unconstitutional? II. Unconstitutional Charter School Legislation
“based on the same funding criteria used for non-charter public schools.”7 The court also found that funds following the student would not work for funding purposes because funds based on per capita student attendance “does not mean that common school funds are available for students who do not attend common schools. Where a child is not attending a common school, there can be no entitlement to ‘an apportionment of the current state school fund, to a credit predicated on attendance of children at such...school.’”8 As a result, charter schools in Washington must close. While the Tennessee and Washington constitutions are not identical, this case’s holding should make Tennesseans question whether charter schools in Tennessee will receive a similar fate. III. Charter Schools in Tennessee
This past September, Washington’s Supreme Court held that the charter school legislation was unconstitutional and violated the Washington Constitution because “charter schools are not common schools despite the Act's attempt to so designate them. The Act's designated funding mechanisms fail and these provisions are not severable from the remainder of the Charter School Act.”4 The court reasoned that the Constitution required the Washington legislature to dedicate funds to “common schools” and that this fund was solely for common schools.5
The Tennessee Supreme Court has not addressed whether the charter school legislation is constitutional. However, former Attorney General, Robert E. Cooper, Jr. has addressed the issue of whether the Charter Schools Act imposes “financial burdens on local school districts in violation of Article II, Section 24 of the Tennessee Constitution” and found that Tennessee’s Charter Schools Act does not produce an unconstitutional financial burden on local school districts.9 This opinion, however, still does not address whether charter school legislation is constitutional under other clauses of the Tennessee Constitution.
This case depended on Article IX, Section 2 of Washington’s Constitution and prior case law defining common schools. In Washington, charters schools had to report students’ enrollment and comply with reporting requirements to receive funding.6 The charter school legislation directed the superintendent to allocate funding for charters
Tennessee’s charter school legislation is similar to Washington’s.10 In Tennessee, charter schools are public schools.11 They are private entities that contract with a school board.12 A charter sponsor can be “any individual, group, or other organization filing an application in support of the establishment of a public charter school.”13 Three
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Nashville Bar Journal • March 2016