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Students at Vega Collegiate Academy in Aurora. (Handout)

A lawmaker worried that charter schools aren’t offering kids with disabilities the same opportunities as traditional public schools wants to change the rules. But education advocates say Rep. Shannon Bird’s proposed changes unfairly target charter schools and are trying to solve a problem that doesn’t exist.

Through legislation she plans to introduce next week, Bird, a Westminster Democrat, addresses what she views as discriminatory practices among some charter schools, clamping down on strategies used to weed out certain students, including those with special needs and English language learners.

The legislation, also sponsored by Sen. Robert Rodriguez, D-Denver, would amend the appeals processes for local districts and charter schools that are at odds, enabling them to bring their cases to district courts, and would seek to make the Colorado State Board of Education more transparent when determining a charter school’s future.

Bird’s broad goal centers on ensuring that all students can access the opportunities offered by public schools, including charter schools. But some education advocates say her legislation could limit the number of charter schools opening and operating in Colorado.

“I think that it adds another layer making it more challenging to open a school,” said Van Schoales, president of A+ Colorado, a nonprofit organization focused on strengthening public education.

Sixth grade students work on math problems during a September 2018 class at Vega Collegiate Academy in Aurora. (Yesenia Robles, Chalkbeat Colorado)

Bird said she hopes her bill won’t significantly impact the number of charter schools operating in Colorado. “We honor the equity-driven work done by so many charters and would love to facilitate more of that.”

Charter schools are public schools that have the freedom to dictate factors like curriculum, staff and budget. Charter schools are subject to a contract — or charter — with a school district and held to rigorous performance standards, according to Dan Schaller, vice president of state and local policy at the Colorado League of Charter Schools. About 14% of Colorado public school students — more than 125,000 kids — are enrolled in 255 charter schools in 70 communities, according to figures from the league.

Charter schools have a deep history in Colorado, which in 1993 became the third state to establish a charter school law. The first two Colorado charter schools opened that fall, the league notes.

Both Schaller and Prateek Dutta, Colorado policy director for Democrats for Education Reform, wonder why the bill focuses only on charter schools. They would prefer to expand the conversation to all public schools — including traditional, magnet, option and innovation.

“It seems like it’s targeting a school governance type, not targeting a problem,” Dutta said.

He said he doesn’t see the problem that Bird’s legislation is trying to solve. “From our perspective, this bill seems to be a solution looking for a problem.”

Education groups are quick to point out that Colorado charter schools on average serve 6% more ELL students than non-charter public schools and 6% more students of color than non-charter public schools.

Colorado charter schools on average serve a lower percentage of students with special needs compared to other public schools, with an average 9% of charter school students having a disability compared to 13% at non-charter public schools, according to information from the league. Part of that, advocates say, could be due to outside factors including differences in the funding between charter school and non-charter public schools as well as in the way they classify students.

Sixth graders listen to a math lesson at Vega Collegiate Academy in Aurora during a September 2018 class. (Yesenia Robles, Chalkbeat Colorado)

Those students attending charter schools are largely succeeding. Based on 2018-19 data that the Colorado League of Charter Schools pulled from the Colorado Department of Education, charter school students in general have been outperforming non-charter public school students in math and English language arts. Additionally, charter school students who live in poverty, are students of color, are ELL or have a disability are outperforming their peers at non-charter public schools in math and English language arts. 

In the effort to close Colorado’s achievement gap, it wouldn’t serve the state well to harm a sector that is successfully educating students of color and low-income children, said Tyler Sandberg, vice president of Ready Colorado, a conservative education group. 

Sandberg is particularly concerned about making sure that charter schools that are performing well can continue operating.

“This is not about protecting all charters,” Sandberg said. “This is about ensuring high-quality charter schools have a fair process by which their charter is approved or appealed.”

Reinforcing access for all students

One of Bird’s top priorities: ensuring charter schools are not allowed to cherry pick their students.

“You can’t pick and choose,” she said. “Our public schools are supposed to be the great equalizers.”

Currently, charter schools can see who is applying, Bird said, and so it’s not necessarily a random selection process. Her bill would amend the charter-school application to require a description of the random selection process each school would use to determine which students it enrolls.

State Rep. Shannon Bird, D-Wesminster. (Handout)

Bird is also pushing for charter-school applications to detail how the school will accommodate at-risk students, students with disabilities, gifted and talented students, and ELL students — by contracting with the authorizing school district or a third party, or by managing the services itself.

Schoales, however, said he doesn’t understand Bird’s concerns around discriminatory practices. He said charter schools are held to civil rights laws and are required to have a lottery, outside of a small number that serve certain populations like gifted and talented students.

For Bird and bill proponent Kathy Gebhardt, it all comes back to equity in public education.

“Having equitable access for all students to charter schools is an important value and one that needs to be reflected in our language and our statute,” said Gebhardt, vice president of the Boulder Valley School District Board of Education and past president of the Colorado Association of School Boards.

Gebhardt shares Bird’s concerns about the ways that some charter schools go about enrolling students. She noted that some will apply filters before the lottery system, including filters that screen out students with special needs or give priority to grandchildren of a founding member or children who are related to alumni.

Gebhardt isn’t opposed to charter schools — she sees that they offer valuable choices — but she said “they need to be more representative of the populations that they serve and have better access for all students.”

Even as Bird touts the need to ensure charter schools are open to all students, her legislation aims to prioritize certain students, including students whose parents work at the school, students whose siblings attend the school, students whose parent played a significant role in founding the school and students living within a 1-mile radius of the school.

Bird wants to preserve local communities and allow charters schools to be the core of their communities. She also believes that founding a school is a way for some parents to be involved in their child’s education. 

New appeals process raises concern of ‘endless litigation’

Another portion of Bird’s legislation would change the way charter schools and school districts could appeal decisions made by the State Board of Education related to the opening, non-renewal and revocation of charters. The bill would introduce the possibility for one party to appeal a decision to a district court.

The State Board of Education is the only state agency that can render an opinion that cannot be appealed, according to Bird, emphasizing that her bill would bring its process in line with that of all other state agencies and would ensure that the law is applied fairly and equally to charter schools and school districts.

Schoales, of A+ Colorado, is wary of involving a district court in the appeals process, which he acknowledged isn’t perfect but seems to be working. He noted the additional expenses that would force onto districts and charter schools, and he doesn’t trust judges to make better decisions.

“I want people closer to what’s going on with greater expertise making decisions,” Schoales said. “I don’t want people far away without understanding of the particulars and the subject matter making decisions.”

The costly legal fees that would stem from appealing a case to a district court would be a particular strain on charter schools, according to Sandberg. While school districts have the resources to take on those legal cases, he said, charter schools couldn’t afford to defend the appeal.

Charter schools are typically operating on about 85% of the funding that traditional public schools operate on, according to Schaller.

“This process of endless litigation would disproportionately impact the charter school space relative to the other side,” he said.

Schaller is equally skeptical about the need to rely on a district court to settle a dispute, noting that the State Board of Education has had a generally balanced process in siding with local school boards and charter schools.

Data provided by the Colorado League of Charter Schools and CDE’s tri-annual report shows that since 2000, the State Board of Education has upheld a local board decision on the first appeal 64 times and sent a decision back to a local school board for reconsideration 58 times. The State Board of Education has ordered the development of a charter school after the second appeal of a local board’s decision another 15 times and has overturned a local board’s decision to revoke a charter another five times.

“What exact problem are we trying to solve?” Schaller asked. 

Additionally, Bird’s bill would force the State Board of Education to be more transparent when making decisions involving charter schools and explain “the rationale and basis for its decision.”

Currently, the state board is not required to explain decisions involving disputes between local school boards and charter schools, Bird said.

People on both sides of the issue have a right to understand the full reasoning of the board’s conclusion, Bird said. She said explanations from the board could hopefully reduce future disputes by allowing school districts and charter schools to review and learn from others’ mistakes.

Schaller wants to apply that same kind of transparency across decision-making bodies, noting that the league has encountered issues related to a lack of full transparency at the local school board level during decisions about charter schools.

CORRECTION: This file was updated at 6:20 p.m. on Feb. 24, 2020, to correct inaccurate information provided by a source. Magnet schools do not have to abide by the standards the bill seeks to have charter schools follow.