Judicial gymnastics won't change charter school funding

Even if the Louisiana Supreme Court decides to make another foray into rewriting the Constitution, the Board of Elementary and Secondary Education and Legislature can insure funding for some Louisiana charter schools should encounter nothing more than a speed bump.

Recently, the First Circuit Court of Appeals ruled that about a fifth of the state’s charter schools, categorized as “new Type 2,” could not draw appropriations from the Minimum Foundation Program. A 3-2 majority agreed with the plaintiffs, school districts and teacher unions, that any charter school granted that status by the state did not qualify as a “public” school, creating a novel category for them. Thus, any monies they would receive under the MFP formula instead would pass to the educational agency with jurisdiction over the school’s geographic location.

The withholding of funds from the schools and diversion of them to the relevant school district would have begun this week, but this court put a stay on the order. The Supreme Court is expected to take up the matter in the near future.

This ruling echoes the behavior of the Court in its 2013 decision to argue that the MFP didn’t cover reimbursements for vouchers used by families to pay for schooling at private or public schools. Then, the Court said that the resolution to fund the MFP actually was more than a resolution but less than a law, formulating a status nowhere in the Constitution that required a majority of the seated membership of a legislative chamber to pass it. Likewise, the First Circuit conjured up the notion, also absent from the Constitution, that the legacy Type 2 schools while not private also did not function as public schools.

The dissent to the majority opinion correctly pointed out that “tortured” reasoning, buttressed by the Constitution’s Art. VIII Sec. 13(B) of it, which unambiguously states that the MFP formula was to “insure a minimum foundation of education in all public elementary and secondary schools” (emphasis mine) and that, when enacting that language, schools other than legacy Type 2 charters existed, such as the laboratory schools of universities, special schools for gifted children, and those run by the Office of Juvenile Justice that would receive funding through the MFP. Clearly, the continued funding of those through the decades without controversy – the plaintiffs did not include these in their challenge because they have the political goal of weakening charter schools as the presence of those dilute their power and privilege – shows the inclusiveness of the language that means MFP money can flow to schools in a geographical location but not under the jurisdiction of a local education agency.

Thus, logic dictates that the Court would overturn this lower court decision. But what if it decides to go all activist again, as it did in 2013, and rewrite the Constitution by agreeing with the First Circuit’s creative redefinition? Legislative solutions exist that would neutralize such a ruling.

Note that the MFP comes from the BESE and goes to the Legislature directly as a resolution, where the chambers only may give an up-or-down vote on it without changes. BESE currently has a narrow majority that favors charter schools. In this instance, BESE would rewrite the MFP to back out money that should go to the charter schools in question from the specific districts that otherwise would get the diverted funds. It also would remove funding for all schools not under local district control.

Likewise, the Legislature has a pro-charter school majority that would accept the MFP, over which charter school opponent Gov. John Bel Edwards has no say. Then it would prepare and pass two separate appropriations bills, one funding the legacy Type 2 schools and the other covering the other schools excluded from the MFP, where the language for the latter would say it would come into effect only if the entirety of the former became law.

This means that if Edwards were tempted to veto the legacy Type 2 appropriations bill, either all of it or line-by-line in an attempt to excise charter school reimbursements – as politically stupid as that would make him look, throwing tens of thousands of children out on the streets – the other bill funding the other schools automatically would fail to come into force, depriving those of money to operate as well. He would have no political choice but to sign them both unmolested, and this would accomplish the same goal encapsulated in the MFP at present.

The special interests contesting the case feel sufficiently threatened that they will go to any lengths to reduce the impact of school choice, disregarding how inconvenient they can make the funding process to policy-makers. Fortunately, realistic solutions can obviate their backwards agenda.