SPEAKERS       CONTENTS       INSERTS    
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62–858

2000
CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE REGARDING CHARTER SCHOOLS

HEARING

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED SIXTH CONGRESS

FIRST SESSION

OCTOBER 14, 1999

Serial No. 80

Printed for the use of the Committee on the Judiciary

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For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
SPENCER BACHUS, Alabama
JOE SCARBOROUGH, Florida
DAVID VITTER, Louisiana
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JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
TAMMY BALDWIN, Wisconsin
ANTHONY D. WEINER, New York

THOMAS E. MOONEY, SR., General Counsel-Chief of Staff
JULIAN EPSTEIN, Minority Chief Counsel and Staff Director

Subcommittee on the Constitution
CHARLES T. CANADY, Florida, Chairman
HENRY J. HYDE, Illinois
ASA HUTCHINSON, Arkansas
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SPENCER BACHUS, Alabama
BOB GOODLATTE, Virginia
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
LINDSEY O. GRAHAM, South Carolina

MELVIN L. WATT, North Carolina
MAXINE WATERS, California
BARNEY FRANK, Massachusetts
JOHN CONYERS, Jr., Michigan
JERROLD NADLER, New York

CATHLEEN CLEAVER, Chief Counsel
BRADLEY S. CLANTON, Counsel
JONATHAN A. VOGEL, Counsel
PAUL B. TAYLOR, Counsel

C O N T E N T S

HEARING DATE
    October 14, 1999

OPENING STATEMENT

    Canady, Hon. Charles, a Representative in Congress from the State of Florida, chariman, Subcommittee on the Constitution
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WITNESSES

    Bolick, Clint, Vice President and Director of Litigation, Institute for Justice, Washington, DC

    Elam, Donna, Associate Director, Southeastern Equity Center, Thonotosassa, FL

    Galloway, Larry D., parent and community activist, Baton Rouge, LA

    Hodgkiss, Anita, Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Washington, DC

    Kirk, Victor C., President, Victor C. Kirk, Inc., Baton Rouge, LA

    Kopplin, Andy, Special Assistant and Director of Policy, Office of the Governor, Baton Rouge, LA

    McCollister, Rolfe, Jr., Board of Directors, Children's Charter School, Baton Rouge, LA

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

    Bolick, Clint, Vice President and Director of Litigation, Institute for Justice, Washington, DC: Prepared statement
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    Elam, Donna, Associate Director, Southeastern Equity Center, Thonotosassa, FL: Prepared statement

    Galloway, Larry D., parent and community activist, Baton Rouge, LA: Prepared statement

    Hodgkiss, Anita, Deputy Assistant Attorney General, Civil Rights Division, U.S. Department of Justice, Washington, DC: Prepared statement

    Kirk, Victor C., President, Victor C. Kirk, Inc., Baton Rouge, LA: Prepared statement

    Kopplin, Andy, Special Assistant and Director of Policy, Office of the Governor, Baton Rouge, LA: Prepared statement

    McCollister, Rolfe, Jr., Board of Directors, Children's Charter School, Baton Rouge, LA: Prepared statement

APPENDIX
    Material submitted for the record

CIVIL RIGHTS DIVISION OF THE U.S. DEPARTMENT OF JUSTICE REGARDING CHARTER SCHOOLS

THURSDAY, OCTOBER 14, 1999
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House of Representatives,
Subcommittee on the Constitution
Committee on the Judiciary,
Washington, DC.

    The subcommittee met, pursuant to notice, at 10:04 a.m., in Room 2237, Rayburn House Office Building, Hon. Charles T. Canady [chairman of the subcommittee] presiding.

    Present: Representatives Charles T. Canady, Asa Hutchinson, William L. Jenkins and Melvin L. Watt.

    Also present: Representative Robert C. Scott.

    Staff present: Cathleen Cleaver, Chief Counsel; Jonathan A. Vogel, Counsel; Sharee Freeman, Counsel, Committee on the Judiciary; Susana Gutierrez, Clerk; and Anthony Foxx, Minority Counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

    Mr. CANADY. The subcommittee will be in order.

    The subcommittee convenes today to conduct an oversight hearing of the Civil Rights Division of the U.S. Department of Justice with respect to its actions regarding charter schools.
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    Charter schools are autonomous public schools that are designed and operated by educators, parents, community leaders, educational entrepreneurs and others for students to attend if they so choose. They are called charter schools because they receive charters to operate for a term of years before they are subject to a review-renewal process. They differ from traditional public schools in that they receive the freedom to design their own curriculum guidelines and governance policies in exchange for a high level of accountability.

    Most charter schools include and specifically target students who are not well-served by traditional public schools such as minority and at-risk students. A study by the Hudson Institute found that charter schools across the country have, on average, a 63 percent minority enrollment.

    The success of these schools has resulted in their growing popularity. In 1991, Minnesota enacted the Nation's first charter school law. Today, 36 States and the District of Columbia have charter school laws, and nearly 1,700 charter schools opened this fall serving approximately 350,000 students. Indeed, The Washington Post reported last Saturday that here in the District of Columbia one in 11 students attends a charter school, as enrollment nearly doubled this year to 6,721 students enrolled in 29 charter schools.

    The President on numerous occasions has signaled his strong support for charter schools. In fact, on October 22nd, 1998, nearly 1 year ago to the day, the President signed into law the Charter School Expansion Act of 1998 which requires the Department of Education in awarding grants to give priority to States that have made progress in increasing their number of charter schools and the accountability of those schools. Moreover, during his most recent State of the Union Address, the President said he hoped there would be 3,000 charter schools within the next few years.
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    Despite the overwhelming success of charter schools and despite President Clinton's support for the creation of charter schools, the Civil Rights Division of the Department of Justice has actively opposed the creation and expansion of certain charter schools on the ground that they might not comply with desegregation court orders and consent decrees. We hope to explore various concerns that have been raised concerning the Division's actions in this regard.

    One concern is the Civil Rights Division's apparent selective enforcement of desegregation orders and decrees against charter schools. In East Baton Rouge Parish, Louisiana, the Division has opposed the creation and expansion of certain charter schools on the ground that they will impede the integration of the traditional public schools, even though many of the traditional public schools in the parish are not integrated and even though the composition of the student population in the public schools makes it impossible for the public schools to have the racial balance sought in the applicable court orders on consent decrees.

    Another concern is the Civil Rights Division's insistence that proposed charter schools submit projected enrollment figures based on race to the Division as a means of obtaining the Division's assurance that it will not initiate costly litigation to block the school's opening or expansion. Aside from the burden such requests place on the parents, teachers and community leaders who unite to create a charter school, and aside from the delay charter schools experience as a result of the Division's burdensome requests, such requests place charter schools in the position of predicting their enrollment figures based on race before they have even completed their enrollment process.

    Of additional concern is the Civil Rights Division's pursuit of its policy with no apparent regard for whether the school district in which the challenged charter schools seek to operate has been become unitary—that is, whether the school district has eliminated the vestiges of its prior discrimination to the extent practicable. A school district that has achieved unitary status is no longer subject to its desegregation order or consent decree. Just last month, as I think most of us here would be aware, a Federal judge in North Carolina dissolved a 30-year-old desegregation order in Charlotte on the ground that the school district had achieved unitary status.
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    Perhaps the most serious concern of the subcommittee should be that the interests of minority students are not being served by the Civil Rights Division's policies. Charter schools provide thousands of minority students an opportunity to obtain an equal educational opportunity in a public school close to home.

    In sum, if the goal in our country is to provide all Americans with equal educational opportunities, then we should be prepared to accept new solutions like charter schools. Our focus should always be on what is best for the children. No one should forget the tragic history of opportunities denied minority students in America. But we should also all be aware that it only compounds the historic injustice when minority parents and students are denied the opportunities they seek today in charter schools.

    Mr. Watt.

    Mr. WATT. Thank you, Mr. Chairman.

    I want to just take a few minutes here to explain to folks why I won't be here for this hearing. It doesn't have anything to do with the subject matter.

    Unfortunately, we, as Members of Congress, get put into situations all the time where there are competing demands on our time, and we try to prioritize the things that we have to do. Today I have at least two competing demands. One is this hearing; the other is a markup in a conference committee on a bill in another committee. And typically when we are marking up bills, it is imperative for us to be there. When we are having hearings, while it is important for us to be there, we can read the transcripts and make up for not being there in other ways. There is no substitute for being there at a markup, however.
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    So for those of you who may be wondering why I am going to come and be here to open the hearing and not going to be here for the rest of it, I want to set you at ease that I am not just walking out on the hearing. This whole stack of stuff that I have here on my desk is not related to this hearing but is related to the markup that I have to go to that also started 10 minutes ago with the same time that this hearing started.

    I would say that I have some serious reservations about what this hearing is all about. And we may be making much, much ado about something that the Justice Department is obligated to do.

    There are three equal branches of government—the executive branch, the legislative branch, and the judicial branch—and the Justice Department has to answer in a number of cases to all three of those entities. They are answering to the legislative branch today by being here and answering questions. And, of course, that is an appropriate role of oversight that we have. But it strikes me as somewhat disingenuous when we, as members of the legislative branch, say to the Justice Department when they are actively pursuing a role under a consent decree or under a judicial decree that it should not gather information or advise itself or take the necessary steps to do what it is obligated to do, it being the Justice Department is obligated to do under a judicial decree.

    That is aside from this whole issue of whether you like charter schools or whether you don't like charter schools. I don't really think that is the issue. And to phrase this—the purpose of this hearing as the Justice Department being on the attack against charter schools, I think is a gross exaggeration.
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    I think most people see some value in charter schools. I happen to see some value in charter schools. But I also see some value in having desegregated schools and not necessarily for the purpose of having black kids attend schools with white kids. I didn't have that pleasure or like thereof.

    Can I ask for 2 additional minutes?

    Mr. CANADY. Without objection, the gentleman will have 2 additional minutes.

    Mr. WATT. Because I attended a segregated school, not by choice, the same buses that were used to achieve and maintain desegregation when I was in school were being used to achieve and maintain segregated schools. I drove a school bus past three white schools to get to the black school that I attended. So I understand the value of desegregated education because I understood and understand the history of segregated education.

    And I understand the need to enforce and uphold consent decrees and judicial decrees that, whether they are consent or nonconsent—it is in Charlotte, North Carolina, my home, where I was forced to attend segregated schools, that the judge recently reached a conclusion that the Charlotte school system was unitary. And I will just say for the record that I am not supportive of the judge's decision any more than I am supportive of those of us who think that we can try to attack the root causes of segregation that have been in—that permeated our system for 200 years or more by trying to attack it for 20 years and then saying we have done enough to achieve the goals that we set out to achieve. So it is the same kind of debate we have, Mr. Chairman, all the time on affirmative action and every other issue dealing with race.
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    I hope you won't allow this, Mr. Chairman, in my absence to deteriorate into an attack on the Justice Department for doing its job. For whatever other motivations might be at place here, desegregated education has its place. Charter schools have their place. Quality education is our goal. I subscribe to all of those things.

    And I think we all are trying to struggle with this whole issue of race and quality and move our Nation forward, not out of something that I created or even you created, but there is a history there that my forebearers were captives of and perhaps your forebearers were on the other side. I don't want this to deteriorate into that kind of confrontation, and I hope you won't allow it to do so.

    Mr. CANADY. Mr. Watt, let me just, in brief response, say that I certainly don't want this hearing to be along those lines at all. As I ended my statement I said that I think our focus should be on what is best for the children. And I understand that the Department has a job to do, but I think we have a responsibility to do what we can to see that they focus on the things that they should be focusing on and they not lose sight of that overarching concern which I believe that you and I would share that we focus on what is best for the children. We may have differences about how that is accomplished, and that is part of the ongoing debate. But——

    Mr. WATT. If the gentleman would yield for just 1 second. Because I really intended to address that notion that this is about the children. It is about the children. But I tell you and I guess it is probably good that I am leaving, I have a deep, deep degree of resentment about this paternalistic attitude that some people have that they can tell me what is good for black children. That is the same attitude that we came out of during the segregation era, and I don't accept it any more today than I did during that era.
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    I thank you, and I will depart.

    Mr. CANADY. I am sorry you have to leave.

    Okay, we will go to our first panel. If you would like to come forward and be seated, I would like to welcome you all today.

    The first witness on our first panel this morning will be Andy Kopplin. Mr. Kopplin is Special Assistant and Director of Policy and Planning for Louisiana Governor Mike Foster Jr. He was a primary staff member in the Governor's Office working on legislation creating the Louisiana Work Force Commission. Mr. Kopplin is a graduate of Rice University, with a masters degree in public policy from Harvard University's John F. Kennedy School of Government.

    Following him is Larry D. Galloway, who is a parent and community activist in East Baton Rouge Parish, Louisiana. Mr. Galloway has one son in the J.K. Haynes Elementary Charter School and another son in the gifted and talented program at the McKinley Magnet High School.

    Our third witness on this panel is Victor C. Kirk, who served as Principal Assistant to the Superintendent and Chief Executive Officer of the East Baton Rouge Parish school system.

    Our fourth witness on this panel is Clint Bolick, who is Vice President and Director of Litigation for the Institute for Justice here in Washington, DC. Mr. Bolick represents a charter school and parents groups in East Baton Rouge Parish.
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    Following him is Dr. Donna Elam, the Associate Director of the Southeastern Equity Center in Florida. Previously, Dr. Elam served as a Director of the Equity Assistance Center at the Metropolitan Center for Urban Education of New York University.

    I want to issue a special welcome to Dr. Elam, who lives quite close to my district in central Florida. We are very pleased to have you here.

    Our final witness on the first panel is Rolfe McCollister, Jr., who is a co-founder and member of the board of directors of Children's Charter School, Inc.

    I want to thank all of you for being here this morning. I would ask that you do your best to summarize your testimony in 5 minutes or less. Without objection, your written statements will be made a part of the permanent record of the hearing.

    When the light is green, that means your 5 minutes are still going. When it is red, that means your 5 minutes are up. I don't think anyone is going to insist on strict adherence to the 5-minute rule but to the extent that you can come close to that we would appreciate it very much.

    With that, we will go to Mr. Kopplin.

STATEMENT OF ANDY KOPPLIN, SPECIAL ASSISTANT AND DIRECTOR OF POLICY, OFFICE OF THE GOVERNOR, BATON ROUGE, LA
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    Mr. KOPPLIN. Thank you, Mr. Chairman.

    Good morning, Mr. Chairman, members of the committee. I am Andy Kopplin. I appreciate your inviting me here to testify this morning.

    I would like to provide you with the Governor's Office perspective on the role that the Justice Department has played regarding the development of charter schools in Louisiana and the impact that that intervention has had.

    As you pointed out earlier, many who are critics of charter schools, Mr. Chairman, don't realize that those are public schools. And, in many cases, the critics of charters fear that they have could have been or have been created as means for the best and brightest to leave traditional public schools or to provide a new vehicle for continued white flight.

    Nothing could be further from the truth in Louisiana regarding our charter schools. Our law specifically requires that any charter schools serve at least the same percentage of at-risk and low-income students as that found in the public schools of the parish where the charter operates. Our inclusion of that requirement was intentional. That provision is probably why nearly every member of the Louisiana Legislative Black Caucus supported our charter school bill.

    We created charter schools in Louisiana simply to improve the opportunities for public school students to get a better education and made sure that our law was written so it would not hamper desegregation efforts. For Louisiana as a whole, the percentage of low-income students in public schools is 58 percent; and for many of the parishes in which charter schools are being formed it is a much larger number.
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    In St. Helena Parish, which is one of the locations where the DOJ's actions have effectively blocked the creation of the charter school, the required percentage of low-income students would have been 92 percent.

    Given the strong correlation between being low income and being minority in Louisiana, the requirement that charter schools serve significant percentages of low-income students means that all of our charter schools are serving high percentages of minority students. Indeed, all the students in several of our charter schools are African American and in all others black students comprise the vast majority.

    Given the nature of Louisiana's law, it would be virtually impossible for an all-white charter school to be established. So, for that reason, we were quite surprised a couple years ago when the DOJ sought to intervene in the creation of charters in our State. Formally, the DOJ will be able to point to desegregation orders that require their involvement in the creation of new schools. They will also indicate that they have done nothing to really prevent the creation of charter schools, they are simply making sure that the process is followed. But, unfortunately, in doing that, the actions of the Department have given people organizing charter schools in Louisiana the clear impression that the Department plans to do everything in its power to prevent the opening of certain charter schools and would work to close down certain ones that didn't initially request court approval.

    In a meeting we had about 2 years ago, Justice Department officials indicated that three charter schools in East Baton Rouge were improperly created since they had not sought formal approval from the Department and the Federal judge. When asked whether it made a difference that these schools had improved the educational attainment of low-income minority students in largely the same demographic setting as they had left, the officials explained that they could not be concerned about the quality of education the students receive but were instead focused on whether the Department's process had been followed to the letter.
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    Now while we respect the Department's role in the desegregation cases, we nevertheless disagree with the perspective that following standard operating procedures is more important for students than the quality of their education, especially in light of Louisiana's charter school law which makes resegregation and/or white flight virtually impossible.

    So we are very concerned that the Department's involvement will simply delay the charter schools applications to death and that their actions to this point are a real concern for the charter schools. We have certainly seen no evidence that the Department is interested in expediting the approval process.

    These kinds of delays are deadly for charter schools. Unlike the Department's involvement in prisons and hospitals and higher ed institutions, charter schools don't have the luxury of time and State-paid attorneys to work through the long negotiating and court processes required. In fact, asking the charter schools which are so small scale to do that puts them in a posture that is just out of proportion with the small town world of most charter schools.

    So what impact has the Department's involvement had in Louisiana's charter schools? They have effectively prevented the opening of two charter schools in St. Helena and another in Baton Rouge, have cost the State and local organizations seeking charters tens of thousands in legal fees and put a damper on the efforts of others thinking about creating such schools.

    As many of you, charter schools are often started by educators who know that they could do something better for students. Trying to start such a school is difficult under any circumstances, but add on top of that the time, energy and costs involved in getting approval from the Department and the Federal court, you can see how some groups may be stymied. In St. Helena Parish, an estimate from the attorneys handling the case for the charter estimated that it might cost $132,000 just to get their case in a proper form before the court and meeting the Department's requests. That is why they gave up their effort.
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    In East Baton Rouge, which you will hear more about, the Department has taken steps to slow the approval process to a crawl. When the school tried to intervene in the case, the Department opposed that intervention. We thought they should have a day in court before the judge. The Department disagreed.

    So even where the Department has not formally objected to the creation of the charter school, they have put up procedural barriers which have made it virtually impossible for those schools to go forward and prosper.

    In conclusion, the Department has done little to formally prevent the creation of charter schools in Louisiana, but informally they have done a great deal. Only those charter schools in our State who have decided they didn't need to make significant capital investments have gone ahead and opened without formal approval. Those contemplating making substantial capital investments or securing loans have chosen not to open their doors because of the uncertain legal playing field brought about by the Department's actions. That is why Louisiana lags far behind Florida and North Carolina, who didn't approve charters until 1996, a year after we did. In the creation of charters, North Carolina has 83, Florida has 112, Louisiana has 24 approved and I think 17 operating.

    So the Governor's Office perspective is that our charter school law in Louisiana already contains sufficient protections to ensure that our Nation's and States' civil rights laws are not violated and we ought to move forward in this important experiment in public education.

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    We have requested that the Department take a stance of innocent until proven guilty, whereby it can move to shut down a given school if it truly is violating the civil rights of the students but go ahead and approve it in the meantime to start. Instead, the Department has continued to insist on a guilty until proven innocent approach, whereby a school needs to demonstrate in advance exactly where every one of its students will be coming from and the specific impact the loss of those students will have on desegregation efforts will have globally on the school district. This type of proof is impossible to gather until after a given school is actually opened.

    So instead of withholding support and asking charter school developers to prospectively prove they will have no adverse effect on desegregation efforts, we believe the Department should, especially in view of the law we have in Louisiana, quickly recommend approval of these charters under objective and clear standards, while reserving the right to object later if adverse impacts can be shown. That would allow the Department to act in concert with the stated goals of the Clinton administration to support the establishment of more charter schools.

    Mr. Chairman, that concludes my prepared remarks. Thank you very much.

    Mr. CANADY. Thank you very much.

    [The prepared statement of Mr. Kopplin follows:]

PREPARED STATEMENT OF ANDY KOPPLIN, SPECIAL ASSISTANT AND DIRECTOR OF POLICY, OFFICE OF THE GOVERNOR, BATON ROUGE, LA

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    Good Morning Mr. Chairman, Members of the Committee. Thank you for inviting me to testify today.

    My name is Andy Kopplin, and I serve as the policy director for Governor M. J. ''Mike'' Foster, Jr. of Louisiana. In that role, I work on all key policy reform areas for the Governor, including charter schools.

    I would like to provide you with the Governor's Office perspective on the role that the U.S. Department of Justice (DOJ) has played regarding the development of charter schools in my state and the impact that the department's intervention has had.

    Before I do so, however, I would like to take a moment to inform you about Governor Foster's extraordinary commitment to improving and funding our state's public schools, and to describe how our charter school legislation supports that strong commitment to public education. To this point, we created charter schools in Louisiana to improve the opportunities for public school students to get a better education, and made certain that the law we enacted ensured that they could not be used to hamper desegregation efforts in Louisiana.

    Over the past four years, Governor Foster has fully-funded the state's school equity formula—the first time that has happened in Louisiana history—by increasing funding by nearly $700 million annually, provided pay raises that have helped increase teacher pay by an average of $5,000 per public school teacher, invested $70 million (or $290 per student) in a new K–3 reading and math program that has significantly raised student achievement, and invested $77 million in technology—lowering our student per computer ratio from 88:1 to 10.5:1.
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    Perhaps more importantly, our administration looked at best practices from state's like North Carolina, Kentucky, and Texas and implemented a school accountability program that has already begun to show results and that Education Week recently hailed as one of the nation's ''most comprehensive.''

    Governor Foster also created a new community and technical college system and a college scholarship program that is perhaps the most generous in the nation—offering four years of free tuition to high school graduates who achieve a 2.5 GPA and beat the state's average on the ACT (over 34,000 students this year).

    So Governor Foster's commitment to public education and to the students served by our public schools is beyond question.

    As I said earlier, our charter school legislation, which was significantly changed in 1996, further exemplifies this commitment to public education and to the students currently attending our public schools.

    Many people who are anti-charter schools or who simply don't know a lot about charters don't realize they are public schools with all the obligations and responsibilities that come with that, and that their principle distinguishing factor is that they are run by a group of parents, teachers, and/or community leaders instead of the school board. In many cases, critics of charters fear that they have been or could be created as a means for the best and brightest to leave traditional public schools or to provide a new vehicle for continued white flight.
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    Nothing could be farther from the truth in Louisiana regarding our charter schools. Our law specifically requires that any charter school serve at least the same percentage of low-income students as that found in the public schools of the parish where the charter operates, and our inclusion of that requirement was intentional. That provision is probably why nearly every member of the Louisiana Legislative Black Caucus supported our charter school bill. We created charter schools in Louisiana to improve the opportunities for public school students to get a better education, not so that they could be used to segregate students by race or income.

    For Louisiana as a whole, the percentage of low-income students in public schools is 58%, and for many of the parishes in which charter schools are being formed it is a much larger number. For example, at least 78% of the students in our New Orleans charter schools must be poor. In St. Helena, which is one location where the DOJ's actions have effectively blocked the creation of a charter school, the required percentage of low-income students would have been 92%.

    Given the strong correlation between being low-income and being minority in Louisiana, the requirement that charter schools serve significant percentages of low-income students means that all of our charter schools are serving high percentages of minority students. Indeed, all of the students in several of our charter schools are African-American, and in all others black students comprise the vast majority.

    Furthermore, given the nature of Louisiana's law, it would be virtually impossible for an all white charter school to be established. It is for this reason that the Governor's Office was quite surprised about two years ago when individuals from the DOJ sought to intervene in the creation of charter schools in this state.
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    Let's talk about the nature of that intervention. First, it must be split into two forms of intervention—formal and informal. Formally, the DOJ will be able to point to court desegregation orders that require their involvement in the creation of any new schools. They will also indicate that they have done nothing to really prevent the creation of charter schools—they are simply making sure that the court orders and the Constitution are being followed. They say that they have nothing against the creation of a charter school long as their formal process is followed.

    Unfortunately, the actions of the DOJ have given people organizing charter schools in Louisiana the impression that DOJ plans to do everything in its power to prevent the opening of certain charter schools and would work to close down certain ones that didn't initially request court approval.

    In a meeting that the Governor's Office had about two years ago, DOJ officials indicated that three charter schools that had been started in East Baton Rouge Parish were improperly created since they had not sought formal approval from the DOJ and the federal judge. In their view, the decades-old desegregation cases applied to the creation of charter schools, despite the fact that charter schools are an educational reform idea that hadn't even been contemplated at the time these cases were filed.

    When asked about whether it made a difference that these schools had improved the educational attainment of low-income, minority students in largely the same demographic setting as they had left (because of white flight, East Baton Rouge parish already has nearly 30 all-minority schools), the DOJ officials explained that they could not be concerned about the quality of education the students received, but were instead focused on whether DOJ's process had been followed to the letter. While we respect the DOJ's role in the desegregation cases, we nevertheless disagree with the perspective that following the DOJ's standard operating procedures is more important for students than the quality of their education, especially in light of Louisiana's charter school law which makes resegregation and/or ''white flight'' virtually impossible.
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    We are very concerned that the DOJ involvement will simply ''delay the charter school's applications to death'' and their actions to this point are a real concern for the charter schools.

    Any such delays are deadly for charter schools. Unlike DOJ's involvement in Louisiana's prisons, state hospitals, and higher education institutions, which have the luxury of time and state-paid attorneys to work through the long negotiating and court processes, almost no charter schools have the resources to engage in protracted legal wrangling. Standard operating procedures of the DOJ that may seem reasonable when dealing with prisons, hospitals or higher ed bureaucracies (and I might add that the Governor's Office is pleased with the progress we are making with DOJ's Office of Civil Rights in regard to these cases) are just out of proportion in the small-time world of most charter schools.

    So what impact has the DOJ's involvement had on Louisiana's charter schools? They have effectively prevented the opening of two different charter schools (one in St. Helena and another in Baton Rouge), have cost the state and local organizations seeking charters tens of thousands in legal fees, and have put a damper on the efforts of others thinking about creating such schools. Again, remember, in Louisiana these schools are serving low-income, minority students. Since the evidence suggests that charter schools perform, on average, better than regular public schools, stopping these charters effectively limits the educational attainment of those students who would be served.

    The DOJ will state that all they want is for every charter school in Louisiana within a school district under a desegregation order or consent agreement to formally seek approval from them and the federal court before opening. Since almost two-thirds of Louisiana's 66 school districts fit in the above categories, this approval becomes almost a de facto requirement for anyone trying to start a charter anywhere in the state.
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    Although DOJ officials readily admit that such approval could take months, they also say that a given charter school really doesn't need to spend any money on attorneys to get this accomplished. Now, how many of you would feel comfortable going before a federal judge requesting approval to open a school without an attorney who understands the process?

    As many of you know, charter schools are often started by educators, parents, community leaders who know that they can do something better for the students, who in Louisiana will be predominantly low-income and minority, than the current public schools are doing. Starting such schools is incredibly difficult to begin with—trying to develop a quality educational program; securing a facility; hiring a faculty; purchasing liability insurance; getting 501(c)3 status from the IRS; making a tight budget work. Add on top of this the time, energy, and costs involved with securing approval from the DOJ and the federal court, and you have effectively scared off some groups. To give some idea of potential costs, the chartering group in St. Helena received an estimate from their attorneys that it might cost $132,000 to handle the case before the federal court and to meet all of the anticipated requests of the DOJ. It is obvious why they gave up their effort. Given that some charter school budgets are no more than $600,000 per year, such up-front legal expenses make opening a charter cost-prohibitive.

    In the East Baton Rouge Parish case, DOJ has taken steps that slowed the approval process of a charter school to a crawl and convinced the charter school organizers to seek sophisticated legal counsel of their own. Although the DOJ officials suggest all a charter school needs to do is request and obtain court approval and then it can open, DOJ objected to this charter school's request to become an intervener in the district's desegregation case and thereby have an opportunity to present their arguments to the judge directly. I believe the DOJ should have allowed them ready access to the judge to plead their case.
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    Even where DOJ has not formally objected to the expansion or creation of a charter school, the requests DOJ has sometimes made for written reports and documentation may from a practical perspective have made the process unreasonably time consuming and expensive. For example, although DOJ did not object to the requests of two East Baton Rouge charter schools to add an additional grade, by requesting extensive background information from them, DOJ's actions had the effect of extensively increasing the costs of adding those grades because the schools felt the need to retain counsel to help prepare the documents.

    In conclusion, the DOJ has done little to ''formally'' prevent the creation of charter schools in Louisiana. But informally, they have done a great deal.

    Now I will be the first to say that absolutely horrible things occurred in Louisiana in the past because of racism and because of past state laws that enforced segregation, and that DOJ intervention was needed to help correct these wrongs. But what has happened with the charter school situation in the late 1990's appears not to be the correction of legitimate wrongs, but interference in the creation or expansion of charter schools. The only explanation for this that I can muster is that either the DOJ is opposed philosophically to charter schools or that DOJ's reliance on its standard operating procedures for desegregation cases is so time consuming and bureaucratic that it has the effect of stopping the charter schools in their tracks. In any case, the results of DOJ's interventions have been significant in terms of stopping the creation and expansion of charter schools but I believe negligible in addressing the problems of segregation.

    The Governor's Office position is that Louisiana's charter school laws already contain sufficient protections to ensure that our nation's and state's civil rights laws are not violated and students are not resegregated as a result of charter schools, and that we ought to move forward with these important experiments in improving public education so long as they are not found to exacerbate current segregation problems.
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    We have requested that the DOJ take a stance of ''innocent until proven guilty'' whereby it can move to shut down a given school if it truly is violating the civil rights of students by adversely impacting desegregation efforts. Instead, DOJ has continued to insist that a ''guilty until proven innocent'' approach be taken whereby a given school needs to demonstrate in advance exactly where every one of its students will be coming from and the specific impact the loss of those students will have on desegregation efforts of the school district. As our attorneys have pointed out, this type of ''proof'' is impossible to gather until after a given school is actually open. This is especially true since charter schools get their students through voluntary enrollment.

    DOJ did choose not to intervene in a case in which a group of African-American church members organizing a charter school in Monroe, Louisiana found themselves in a Catch-22 situation, and we are grateful for that. In this case, the school district attorneys, who opposed the charter school, argued in part that if the proposed charter school enrolled one white student this was bad since that was one less white student for the larger school system to use in integrating its schools. On the other hand, an all-black charter school would not improve desegregation efforts since it would be a single race school. How can you win? Fortunately in this case, the federal judge made it emphatically clear early-on that he was inclined to support the charter school's application and DOJ wisely stayed on the sidelines.

    The Governor's Office also has concerns regarding what measures the DOJ has used and/or will use to determine if a given charter school will adversely affect the ability of a given school district to implement its desegregation plan. They had indicated that any loss of funding to the school district will be a key item they will review. Since every district will experience some loss of funding when a charter school opens because the district will lose some students to the charter school, does this mean that every charter school will be opposed by DOJ?
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    Finally, we also have concerns about the approach that the DOJ may take regarding other recent education reform efforts in Louisiana. What will they do when the state's new accountability system begins to allow students from chronically poor-performing schools to enroll in higher performing public school. Will such transfers be prohibited because desegregation orders written in some cases decades ago didn't contemplate real accountability systems for schools?

    In closing, I welcome this opportunity to share these concerns with you. Based upon these recent experiences, it appears that efforts to improve the quality of education for low-income and minority students through charter schools are taking a backseat to decades-old approaches to desegregation that involve months of negotiating and thousands of dollars spent on attorneys and desegregation experts. The Governor's Office has no quarrel with the DOJ's goals of preventing institutionally-driven segregation and welcomes the involvement of the DOJ to work collaboratively with us to improve the system of public education and to make sure that the things we are trying to do really will benefit students. But we worry that the approach taken by DOJ at this time has the effect of preventing educational improvement from occurring through charter schools, which under our law have virtually no possibility of adversely impacting desegregation efforts.

    Mr. CANADY. Mr. Galloway.

STATEMENT OF LARRY D. GALLOWAY, PARENT AND COMMUNITY ACTIVIST, BATON ROUGE, LA

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    Mr. GALLOWAY. Thank you, Mr. Chairman, and good morning.

    Let me just say thank you for inviting me here. I definitely am excited about the opportunity.

    Let me just mention that I am here alone as a parent, and I represent the children and the parents of East Baton Rouge Parish. I have no political aspirations or backing. I only bring the message that they themselves have told me.

    I want to also mention that those voices have been silent for a number of years. The court system, the judicial system, the NAACP, the attorneys, the lawyers, the plaintiffs, they have all refused to hear what the parents are saying. And that is what we want, to get that message out that all we want to do is educate our children. There is no particular case where we are talking about black or white or any other thing except for educating our children.

    And now that charter schools are here, vouchers are starting to come about, we see those as avenues, as vehicles to educate our children. Because, as you noticed, the number that Louisiana has for the last so many years has been number 49, and that has caused most of the parents and the students, especially the parents, to become postured toward saving their children. We are not necessarily trying to educate them. We are trying to save them from a system that has now started to falter.

    So we do not want to destroy public education. We want to just educate our children. We want to be provided that opportunity to educate our children.
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    Charter schools in Baton Rouge, Louisiana, and all across this Nation have been a savior for not only black children but all children. Any child that needs an education should be allowed and parents should be allowed to provide the best education possible for their children. We are not asking to come in and take money from the public school system or to take money from the governmental agencies. We just want to be allowed to educate our children.

    I must also mention that in the last few years the desegregation lawsuit which has existed now for 43 years in Louisiana itself, and I can't speak for anyone else but Louisiana, especially Baton Rouge, the demographics has also caused changes in that particular lawsuit. We have now had where there have been a flight to existing parishes which surround Baton Rouge. Communities that used to be predominantly white are now predominantly black. So the original lawsuit that was filed now has a different texture. It is not the same as it was 43 years ago.

    So how do you come about to tell those kids and those parents that bypassing a school that is right there in that neighborhood to send them 20 miles across town to another school, where they are going to school with kids that they don't know, they are going to schools where parents cannot participate in those schools and become a focal point—those parents are not even volunteering to do anything in those schools. All we want to do is, one, go back to our neighborhood schools; two, provide the best education possible for our children; and, three, make it as simple as possible. That is all we ask for.

    Let me just mention several other items, I guess. In the past few years in Louisiana, in East Baton Rouge Parish, we have had the luxury of having the largest school system there in Louisiana. The East Baton Rouge Parish school system had at one point 60,000 students. Now because of the population explosion in Ascension, West Baton Rouge, East Feliciana, Livingston Parish and other boundering parishes of East Baton Rouge Parish, parents have now decided to move their families into those subdivisions, those parishes, due to the fact that they are providing a well-rounded education, better facilities, just a number of different things for these children.
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    And that is going to continue to happen because we cannot control demographics nor can we control parents and tell them where they should send their children when all they want to do is provide the best education possible for their child.

    Recently, they have—the East Baton Rouge Parish school system—I guess the Louisiana school system, they have come about with a 2-year plan and a 10-year plan. Those schools that are in greatest need will—the system will go in and in 2 years tear that particular school that is a failing school down. They also have a 10-year plan whereby they would also do that to the schools. Well, my 7-year-old would be a 17-year-old in a failing school. So you are asking me to sacrifice my child for 10 years or for 2 more years in a failing school system. I don't think any parent would ever do that with their child.

    And that is my point, is that we parents sat and listened to the NAACP, the Justice Department, the school boards, the plaintiffs with the desegregation lawsuit, and we sacrificed our children and we put our children in their hands that everything would come out okay and that our children would be given the best education possible. Here, 43 years later, that is not what has occurred. Our children are suffering. Our children are the tragedy of—I mean, they are the victims of this horrendous tragedy.

    How do we correct it? Well, provide us with a vehicle to give our kids the best education possible. That vehicle now exists in other means besides private schools or Catholic education or, you know, other private facilities that exist.

    Now charter schools, which is a public school, has now come about. Vouchers has come about. We are just trying to find any means to provide our children with an education. And as parents particularly, we don't care if a child is black, white, blue or green, we just want him to have an education. You know a dumb child is a dumb child.
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    But I don't think when you are asking a parent to delay their child's education while we wait on the desegregation lawsuit, the plaintiffs, you know, all these people to provide us with what they should have done 43 years ago, you are asking me to do a sacrifice that many parents in Baton Rouge and East Baton Rouge Parish and all across this Nation will not do. They will not do that. If you do, then you are sacrificing your child to a mediocre education or you are sacrificing your child's future. And I have done that with my first generation, and I will not do it with my second generation, nor will I put my child on a bus ride 20 miles from home again.

    Let me just ask this question. If the desegregation lawsuit truly was doing what it was meant to do, would our children in Baton Rouge especially be so educationally unfit?

    And I bring that point to you because in the packet I wanted to bring to you some school accountability schools scores that were just recently published in Baton Rouge concerning East Baton Rouge Parish. The bottom 30 schools of the 50 schools that are listed that were academically below the State average. Those bottom schools were predominately black. If that desegregation lawsuit was doing what it said it was going to do for our children, then we would have had a better fix. But I don't see that.

    So now, we as parents are posturing our children because this sends a powerful message that I should be saving my child from the people I put my child in the hands of, I put their future in their hands, and now they turn around and want me to wait 2 years, wait 10 years before I can put my child in a charter school, before the voucher system comes about, or just wait on them to make another decision. I don't think it is going to happen.
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    Let me ask another question, and I mentioned that due to demographics does most of the language that is in the desegregation lawsuit from 43 years ago even apply to us now? There have been so many unforeseen changes in those 43 years till us parents have now—we have just become totally frustrated with everyone who is involved. Because we trusted them. We trusted them with our most precious commodity, our children. And that is all we wanted to do, was to provide an education for our children.

    It wasn't the fact that in order for our children to get an education we were going to send them across town and they had to sit next to a white child to get education. Should we have concentrated on equality, equity in the system rather than inequality or busing? If equity was in the system, then we would not be in this situation anywhere in Baton Rouge. We would have magnet programs. We would have charter schools. We would have a lot of things that are operating.

    And we have been supported by—I can't say that it has been all negative. We have been supported by the NAACP, the Justice Department, the school boards, the Federal judge, and everybody. They have been very supportive over the 43 years. But now, in 1999, I am in a position whereby the scores have not shown any difference. The parents are frustrated. Several parents' groups are now pushing for lawsuits on the school board, against the Justice Department. We want to intervene and have our voices heard.

    And, in my closing, we placed our trust, our hope, our desires, our dreams, our most precious commodity, our children, in the hands of those running the desegregation lawsuit—the school boards, the Justice Department, the NAACP, the original plaintiffs. Were we, the parents, wrong for placing the faith of our children in the hands of those that guaranteed us that desegregation would mean better schools and better education opportunities for our children? Were we, the parents, wrong to make a personal deposit of a child into this bank and expect a greater return, a child equipped with a high school diploma, with the capability of obtaining a college degree, a law degree, to become a doctor, a lawyer, a representative, a senator? Were we wrong to hope for that? Or were we simply dedicated parents trying to educate and protect our children?
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    Thank you, Mr. Chairman. I appreciate it.

    Mr. CANADY. Thank you, Mr. Galloway.

    [The prepared statement of Mr. Galloway follows:]

PREPARED STATEMENT OF LARRY D. GALLOWAY, PARENT AND COMMUNITY ACTIVIST, BATON ROUGE, LA

    Mr. Chairman and members of the subcommittee, I come before you today as a voice for all the parents and children of East Baton Rouge Parish in Louisiana. I speak for them and them alone. Their voices have been silenced and mostly unheard ever since the persons involved in the desegregation lawsuit—the NAACP, the school board's lawyers, and the plaintiffs' lawyers—became totally focused on desegregation, when education and equality should have been foremost.

    The parents' voices were not heard when our children were being bussed. The parents' voices were not heard as our children attended unequal schools. The parents' voices were not heard as our children sat in raggedy, run-down, leaking, and cold schools. The parents' voices were truly not heard as our children were being used as pawns for the political and educational factions in Louisiana and across this nation.

    Our children have been and are the victims in this horrendous tragedy. Through all of this, we parents have been very tolerant, understanding, quiet, willing, and non-repulsive to the school board, the NAACP, the Justice Department, other players in the desegregation lawsuit, and other individuals that claim to be the speakers and representatives for our children.
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    We parents have sacrificed several generations of our children for the educational process and are currently not being given any choices or opportunities to save the next generation. Louisiana ranks 49th in the nation educationally, and the outlook does not look promising to us parents. The Louisiana education experts have a plan—a two-year plan and a ten-year plan—to turn around this educational nightmare. But instead of focusing on education, the NAACP, the Justice Department, and the school boards have concentrated on desegregation for the past 45 years.

    During that time, we have waited on the lawyers for the completion of the desegregation lawsuit's legal action. We've waited for the development of charter schools. We've waited for the state to give us a choice to seek out and provide the best education possible for our children. And please let us not forget that we parents have waited on the school boards to give us equality. This is all we wanted for our children.

    But, what were we given? Nothing. Nothing for our patience. Nothing for the most personal sacrifices that any individual could make, their child. Nothing for our dedicated diligence to comply with the system. We were given a sliver of hope with scaled-back bussing, a half-hearted return to neighborhood schools, and the development of the three charter schools in Baton Rouge, along with several others across the state.

    And now, a group of lawyers from the NAACP, the Justice Department, the school boards, and the plaintiffs in the desegregation suit, all stand in the way of education and equality for our children. As a result, we—the parents of those children—are now forced to save our children from the very individuals that are supposedly in the business of helping them. It frightens me and parents across the state of Louisiana that we must now do whatever we can to protect our children from those we have trusted during the 43 years of the desegregation lawsuit. We see pulling our children from failing schools and a failing school system as necessary to protect our children, and our right. We are not alone in standing up for this right, as all across the United States parents move from the inner cities to the suburbs for better schools, better school systems, and better administrations that will hear their voices, work with their wishes, and most of all, give them equality, education, and hope for the future for their children.
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    To stand up for these rights, we parents have attempted to have a voice by intervening in the desegregation lawsuit. But due to the arrogance of the lawyers, the Justice Department, the federal judge, the school boards, the NAACP, and others involved in the case, they have chosen to ignore the parents and our requests. Their concern is now, and always has been, desegregation, not education. So, when do we get back to the business of educating our children? Well, respectfully, we parents of Louisiana must now stand up to those that choose not to hear our voices—just as parents from across this great nation are doing. We must stand up to those who use our children as pawns for ridiculous ''long range'' educational plans. Our children are suffering educationally, right now. We, parents, need your help expeditiously.

    We parents, see charter schools, vouchers, and school choice as a vehicle to saving our children. The desegregation lawsuit and its 43 years of attempting to desegregate the school system has been instrumental in restructuring the thinking of educational administrations. But now due to demographics and parental movement from the inner city to the suburbs, the type of desegregation we first hoped for seems unlikely. Now, instead, the desegregation lawsuit just stands in the way of education—not just for African-American children, but for all children. The children of Baton Rouge have been unable to attend the schools of their choice. Charter schools have not been allowed to open and help thousands of students.

    As a parent of children in the Gifted and Talented program and the J.K. Haynes Elementary Charter School, I chose to pursue these special programs, because I saw that they were special and that my children would benefit greatly from their participation. But what about all the parents that do not have the chance to pursue these special programs? What about the parents that cannot save their children from the wall being placed in front of them by the desegregation lawsuit and all the lawyers involved in it?
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    If you look at the chart with the accountability scores, please notice the bottom 28 schools of the 49 schools listed in the ''Academically Below State Average'' category for the East Baton Rouge Parish schools. These schools are either at or below the 50% school performance score. These schools are also all considered predominantly African-American schools according to the standards set forth in the East Baton Rouge desegregation lawsuit and consent decree.

    This sends a truly powerful message to the parents in Baton Rouge, along with those in Ascension, Livingston, and East Feliciana parishes, which are our surrounding parishes. These parishes have become major exits for parents seeking to save their children from the desegregation lawsuit, a failing school system, and, as you can see by the performance scores, failing schools.

    We, the parents, have been placed on notice by these scores that it is time to get involved in the process and protect our children. I ask these questions. If the desegregation lawsuit was truly doing what it was meant to, would our children be so educationally unfit? Has desegregation truly been the savior for our children, or the hindrance that is depriving them of an education? Should the desegregation lawsuit have focused its attention on making certain that equity and equality were first and foremost, not inequality or bussing? Most of all, does the language of the desegregation lawsuit from 43 years ago apply to us now in 1999, with all the unforeseen changes that have taken place since the filing of the initial lawsuit?

    We parents want to get involved. We parents want our children to go to our neighborhood schools. We parents want to be recognized as a part of the solution and not the problem. We parents want the desegregation lawsuit to stop destroying our children's education. We parents want the school boards to get back to the business of educating our children, and most of all, back to the business of providing to our children in the public schools the best possible education that can be provided.
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    For this, we need charter schools. We need vouchers. We need those persons interested in doing what's right for public education to hear our voices and our plea for help in this monumental task. We do not want to destroy public education. We do not want to become another government program.

    We just want, plain and simple, to educate our children—and quickly, before we lose another generation. We just want educational equality throughout the schools. This is our plea to you and others on this committee. This is our parental plea to the national education experts and the Louisiana education experts that choose not to hear the parents' voices. This is our plea to those who choose to make and base their decisions according to political education groups with power, time, and tremendous financial support.

    We parents have been unable to create that kind of influential base. We placed our trust, hope, desires, dreams, and our most precious commodity—our children—in the hands of those running the desegregation lawsuit—the school boards, the Justice Department, the NAACP, and the original plaintiffs. Were we, the parents, wrong for placing the fate of our children in the hands of those that guaranteed us that desegregation would mean better schools and better educational opportunities for our children? Were we, the parents, wrong to make a personal deposit of a child into this bank and expect a greater return—a child equipped with a high school diploma, with the capability of attaining a college degree, a law degree, to become a doctor, or lawyer, a representative, a senator? Were we wrong to hope for that, or were we simply dedicated parents, trying to educate and protect our children?

    Mr. Galloway is a parent in East Baton Rouge Parish. He has one son at the J.K. Haynes Elementary Charter School and another son in the Gifted and Talented program at McKinley Magnet High School.
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THE ADVOCATE ONLINE—PUBLISHED ON 9/25/99

GROUP WANTS ROLE IN SCHOOLS CASE

By Kristen King, Advocate staff writer

    A group of Baton Rougeans wants a say in the 43-year-old East Baton Rouge Parish school desegregation case.

    Brace Godfrey, spokesman for the Citizens Task Force on Education Improvement, said the group wants to add some level-headedness to what seems to be a heated battle between the School Board and the plaintiffs.

    ''Hopefully we'll bring more reason to the process in terms of what the community thinks,'' said Godfrey, who also is a partner in the Adams and Reese law firm in Baton Rouge.
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    Earlier this week, the group filed a request with U.S. District Judge John Parker, who presides over the case, asking to become a ''friend of the court. ''

    Godfrey said the group wasn't asked by any of the parties in the case to join and doesn't plan to side with any of them.

    ''We would like to bring the interest of the community to bear, and we don't say that out of an attack on anybody,'' Godfrey said. ''What we mean by that is that everybody (already involved), because of the role they play, regardless of who they represent, they bring kind of an angle with them to the table.''

    The group needs Parker's permission to join in the case. If the group gets it, it could file documents giving its position on any issues, Godfrey said.

    He said there's no deadline for Parker to decide. He said judges only rarely let outside groups join a case as a ''friend of the court'' at the district level. It's more common at the appellate level, he said.

    Some of the 30 people listed on the motion are associated with the Greater Baton Rouge Chamber of Commerce, Godfrey said the group includes men and women, black people and white people, business folks, religious leaders, retired educators and ''people who simply send their kids to school everyday.''

    The group is an expanded form of an organization that got involved several months ago when the parties in the desegregation case deadlocked on the construction and discipline parts of a sales tax voters approved in November. The group encouraged the parties to work out an agreement without fighting it out in court.
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    The parties have struck a deal on the last part of the sales tax, but Godfrey said a group with no baggage is still needed in the case.

    ''We just want to have some input . . . in so far as the parties tend to get mired so often on issues they tend to resolve anyway,'' Godfrey said.

    The group's short-term focus is the tax, the motion says. Even though the parties reached an agreement, two board members have already said they won't go along with it.

    Godfrey said his group also has a long-term stake in the case.

    The school system will eventually be released from court control—whether it's one year or several years from now—and the group wants to help shape the system after that happens, Godfrey said.

    He said if Parker doesn't let the group get involved, it will continue to encourage the various parties to work through their differences.

    Other members of the group are Mayor Pro Tem Mary Frey Eaton; Jensen Holliday, the president of Franklin Press; Willie Johnson, vice president of education for the Chamber of Commerce; Chamber President Jimmy Lyles; Bill Rainey, manager of Exxon's chemical plant; Christel Slaughter, partner with SSA Consultants; Rev. Charles T. Smith, Shiloh Baptist Church; John Spain, managing director of the Powell Group; Bill Tucker, president of W.E. Tucker Co. Realtors; Kyle Waters, Baton Rouge area president for Hibernia National Bank; and Josie Williams, a retired public school principal.
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    They signed to represent the entire group, which also includes Rev. Chris Andrews, First United Methodist Church; Volunteers in Public Schools Executive Director Jenola Duke; Barbara Fuhrmann, dean of the LSU College of Education; businessman Cooper Harrell; the Rev. Mary Moody, president of Baton Rouge Area Ministerial Association; architect Skipper Post; Norman St. Amant; Mary K. Brown, board member of Academic Distinction Fund; Jerel Garousso; the Rev. Jennifer Jones, Shiloh Missionary Baptist Church; Jake Netterville, chairman of Postlewaite & Netterville accounting firm; John Smith, lab technician with Exxon; Elizabeth ''Boo'' Thomas, with Plan Baton Rouge; Rabbi Barry Weinstein, B'Nai Israel Synagogue; Blaine Bryant, Mary Fleming; Susan Hymel, coordinator of Community Action for Children; and Yduc Nguyen.

     

THE ADVOCATE ONLINE—PUBLISHED ON 10/5/99

PARENTS SEEK VOICE IN SCHOOLS

By Kristen King, Advocate staff writer

    Roughly 300 parents from the Central area voice their frustrations Monday night with not having a say in the federal school desegregation case and determined to stand together to make their opinions known.

    ''There's nothing anybody can do when they stand up by themselves and speak,'' said parent Marty Guilbeau, a 33-year-old welder and parent of two, who organized the meeting at Tanglewood Elementary School in Baton Rouge.
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    Parents applauded each other frequently.

    They also applauded when School Board member Jay Devall said he won't vote for an agreement some school officials recently reached with lawyers for the plaintiffs in the desegregation case.

    The deal would let the board use the remaining 0.06 percent of a penny sales tax East Baton Rouge Parish voters approved nearly a year ago for four-room additions, or quads, at 25 elementary schools. However, the agreement differs from the tax plan in that two of the schools named in that plan to receive additions—Tanglewood and Dufrocq—would not get them.

    The deal also would make other changes, including capping the enrollment at Tanglewood and a few other schools. Tanglewood, which has 626 students, would have to reduce its enrollment to 510 by 2001. That was the initial reason Guilbeau organized the meeting, and most of the people who spoke at the meeting seemed to be associated with Tanglewood.

    But other residents from Central and the rest of the parish—most of them white parents—attended, not only to have a say, but to try to refocus the school system on education rather than desegregation.

    ''I don't think anything ought to be more important than the education of our children. That's what the schools were originally built for and that's what they're intended for now,'' Guilbeau said.
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    The audience also applauded Donna Dufour, who campaigned against the desegregation plan in 1996 because it moved her child from Bellingrath Hills to Greenbrier Elementary. Dufour said Monday that she will take a day off work to picket with Tanglewood parents in front of the federal courthouse.

    ''I want to congratulate you for waking up and getting involved,'' she said. ''You don't need to wait until it's your school.''

    They applauded Nikki Loupe who said if the deal is approved, she'll move to Livingston Parish, where she would know where her children would go to school from year to year.

    They applauded Nycol Thomas, who cried as she explained into a microphone that she had moved into the neighborhood near Tanglewood so her child could attend kindergarten there.

    ''If y'all fight against us, we're just going to come back stronger,'' she said. ''You don't choose where my child goes to school. I do.''

    The audience applauded parents who said their children already moved from one school to Tanglewood when the desegregation plan took effect in 1996 and they don't want that to happen again.

    They applauded others who pleaded with board members to stop paying consultants who tweak the desegregation plan and to hire the best lawyers in the country to take the 43-year-old desegregation case to the U.S. Supreme Court to end it.
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    And they stood on their feet when Jimmy Shows apologized for getting angry that Tanglewood—where four of his five daughters attend—seems to get fewer resources than many majority black, inner-city schools that are assigned extra resources under the desegregation plan. ''I will unite with my man Mr. Guilbeau here and I will do whatever it takes to get the job done,'' he said.

    Other parents agreed that they should act as a group. Jon Simmons, whose children attend other Central schools, said parents must ''band together and take some legal action''—though he didn't know what exactly—because the federal court and U.S. Justice Department, a plaintiff, aren't likely to bow to public opinion.

    Children also attended the meeting and stepped up to the microphone to say they love their school. They picketed in front of the school before the meeting.

    Organized by Tanglewood's Parent Action Team, the students carried signs saying, ''Save our school'' and ''We love our school.''

    Plenty of high-ranking school officials also showed up. Noel Hammatt, Press Robinson and Ingrid Kelley were the only three members of the 12-member School Board who weren't there. Superintendent Gary Mathews also attended, along with one of the system's desegregation lawyers, its director of equal educational opportunities and two associate superintendents.

    Two empty chairs in the front of the auditorium had been reserved for U.S. District Judge John Parker, who presides over the case, and Justice Department attorney Franz Marshall.
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    School Board President Roger Moser told the audience that the board is meeting about the tax agreement Wednesday, but probably won't vote on it until the end of the month.

    Moser acknowledged that the nine board members present made up a quorum and that the board should have advertised its attendance ahead of time, but didn't.

    ''We're going to take the risk'' and stay at the meeting, he told the audience. ''It's not a secret meeting to anyone who's paid any attention.''

    Board member Patrice Niquille said that parents who are angry their child could have to change schools should keep in mind that all buildings have maximum capacities. She got little applause.

    But Guilbeau got a standing ovation when he responded.

    ''We realize Tanglewood has a capacity,'' he said, ''That's why we voted to add a quad onto it.''

     

THE ADVOCATE ONLINE—PUBLISHED ON 10/6/99

PARENTS MAY SUE IN DESEGREGATION CASE
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By Kristen King, Advocate staff writer

    Several parents upset that their children could be forced to change schools yet again are saying they might sue to end the 43-year-old desegregation case themselves.

    They were among more than 100 parents gathered Tuesday night at Wedgewood Elementary.

    Parents said they are angry that the enrollment there would be capped under a deal school system officials have reached with the plaintiffs in the case.

    Capping enrollment could require school officials to redraw attendance lines, which could mean some students would have to change schools.

    Tanglewood Elementary and several other schools also face enrollment caps under the deal, which was reached over how to spend some, of the money in a tax plan voters approved last year.

    The School Board hasn't yet voted on whether to accept the agreement.

    On Tuesday, some parents said they're mad that the desegregation case has gone on for so long and they continue to feel like they don't have control of their children's education.

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    ''We need to work together as parents instead of pointing a finger,'' Sharon Walters, a Wedgewood parent, said after more than two hours of comments.

    Instead of raising money for computers, maybe parents should raise money to file a lawsuit, she said.

    School Board member Eldon Ledoux, who called Tuesday's meeting, defended himself against several parents who said the board is falling down on the job by not fighting in court to end the case once and for all.

    But Ledoux also told them, ''I would welcome any group of parents wishing to enter this case on the grounds that their children are not being equitably treated.''

    Walters and others offered to volunteer their time to help Marty Guilbeau, a Tanglewood Elementary parent who organized a meeting Monday there about the tax plan agreement.

    About 300 parents and nine School Board members attended that meeting. Four board members were at the meeting at Wedgewood on Tuesday.

    Guilbeau attended the Wedgewood meeting, sitting in the back of the room holding a copy of a federal judge's ruling in the Charlotte-Mecklenberg school district desegregation case.

    Last month, the judge released the district from a desegregation case after a group of white parents sued the school system, claiming racial discrimination.
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    But Guilbeau also told the group he's not sure that's the way to go.

    ''I can't afford to file a lawsuit. I can't afford attorneys fees. We need to band together as parents and sit down and talk and find out what our options are,'' he said.

    Guilbeau said while the ultimate goal is ending the desegregation case, the first step for parents needs to be making sure the remaining 0.06 percent of a penny sales tax voters approved last year is implemented as promised.

    The meetings at both Tanglewood and Wedgewood this week were called in reaction to the deal reached between school officials and plaintiffs on that part of the tax plan.

    The money is dedicated to building four-classroom additions at 25 elementary schools. The deal would build them at 23 of those 25 schools. Tanglewood and Dufrocq would not get the additions, which instead would go to Westdale and Greenbrier elementaries.

    The School Board hasn't voted on the plan, but some school officials have said it would be okay to change the locations of the additions because the deal would also make some changes to magnet programs, which qualifies as ''unforeseen circumstances.''

    The tax plan approved by voters laid out what would be done with the money, but added that the expenditures could be changed for ''unforeseen circumstances'' or emergencies.

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    But parents at the meetings this week have said the tax plan allowed for changes for things like hurricanes or natural disasters, not to strike a deal with the plaintiffs in the desegregation case.

    Guilbeau said that if the board decides to approve the deal in a vote expected later this month, the first step will be filing a lawsuit to get the tax thrown out.

    Ledoux told the audience that the enrollment caps included in the deal are a major problem for him. If he had to vote right away, he'd vote against the deal, he said.

    But he refused to say how he would vote for sure, which drew criticism from the crowd. Ledoux said if the board doesn't approve the deal, the Justice Department may seek—and U.S. District Judge John Parker might grant—changes in attendance zones sooner than 2001.

     

THE ADVOCATE ONLINE—PUBLISHED ON 10/7/99

SCHOOL BOARD NERVOUS ABOUT JUDGE'S OFFER

By Kristen King, Advocate staff writer

    A federal judge told East Baton Rouge Parish school officials during private meetings last month that he would approve a contentious piece of the tax plan voters approved in November—without any changes, School Board Vice President Jackie Mims said Wednesday.
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    U.S. District Judge John Parker, who presides over the desegregation case against the board, ''made it a point for us to say to our colleagues (that he said) 'Give me your tax proposal, and I'll sign it today just as you gave it to me,'' she told the board at a special meeting Wednesday.

    But Mims and one of the board's attorneys said they didn't take him up on his offer—and instead struck a deal with the desegregation plaintiffs that would change the tax plan.

    They said they're afraid that if Parker were to approve the tax plan, he might also change attendance zones, reinstitute forced busing or limit the enrollment at schools throughout the parish.

    Parker reportedly made his offer during the same private meetings that resulted in a deal with the plaintiffs that Mims and attorney Michael C. Garrard said should safeguard the board against any of that happening.

    The part of the tax plan in question involves a 0.06-percent sales tax that is expected to raise about $17 million to build four-classroom additions at 25 elementary schools. The deal with the plaintiffs would put those additions at 23 of the 25 schools named in the tax plan, and at two others not named in the plan. The board has not yet voted on the deal.

    Additions planned for Tanglewood and Dufrocq would go instead to Greenbrier and Westdale. Greenbrier also would get an academic magnet, and Westdale would get Dufrocq's Montessori magnet.
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    The deal also would cap enrollments at six schools, including Tanglewood and Wedgewood elementaries, starting in fall 2001—a prospect that has drawn strong criticism from parents.

    And the plan also drew criticism Wednesday from the board's desegregation expert, Boston University Professor Christine Rossell.

    She said the deal could be the first step toward enrollment caps throughout the parish.

    ''In essence we'd be sending a message that enrollment caps are OK,'' she said. ''If we agree to this proposal, where do we stand for the next six (schools), and the next six after that and the next six after that?''

    Rossell said the deal looks like the first step in a plan to enact ''controlled choice desegregation'' in the parish. That means, in effect, that students could go to the schools in their attendance zones until the schools hit enrollment caps. Then the rest of the students can be bused to another school to improve desegregation.

    Rossell criticized a part of the deal that would require the board to get rid of temporary classroom buildings at five schools. Agreeing to that could hurt the board if it wants to fight a part of the 1996 desegregation plan, or consent decree, that requires it to get rid of most of its temporary buildings.

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    Rossell said board members would probably have a hard time arguing against, that requirement because signing the deal would make the second time—the first being the consent decree—the board will have agreed to scrap temporary buildings.

    Rossell said the question would be, ''Why would you (repeatedly) sign something that says you would reduce temporary buildings? Are you ninnies?''

    The board says it can't get rid of the buildings because it needs the classroom space.

    Rossell also said there are some good points in the agreement.

    ''It buys us some time'' by putting off caps until fall 2001, she said.

    ''It's possible we could get something worse in court'' if the board rejects the deal, she said.

    Garrard also told the board before Rossell arrived on a delayed flight from Boston that accepting that deal might be better for the parents than not having any agreement in place.

    If the deal is approved, the board has two years to try to get parents to voluntarily transfer their children from the six schools facing enrollment caps, possibly moving them to the magnets at Highland and Greenbrier.

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    ''This order, if signed, basically guarantees the students at Wedgewood that nobody's going to be moved out until the fall 2001,'' Garrard said.

    If the board rejects the deal, Parker ''might ... decide (now) which students go to school where,''Garrard said.

    ''It would be very easy for me to say, 'Let's go fight.'But I'm not gambling with my kids. I'm gambling with somebody else's kids,'' Garrard said.

    Rossell said it is unlikely Parker would impose a ''full-fledged, systemwide'' busing plan or wholesale changes in attendance zones if the board rejects the deal.

    ''More likely, he'd impose enrollment caps now instead of waiting,'' she said.

    Board member Pat Smith said the board must be cautious because Parker has recently ruled in ways that he hasn't ruled previously.

    For instance, she said, Parker recently ruled that the board couldn't move 14 temporary buildings to relieve overcrowding and instead should change attendance zones. In the past, getting his permission to move temporary buildings had been a formality, Smith said. Parker is reconsidering, but the board wanted to move the buildings for the start of school a month-and-a-half ago.

    Also, Smith said, last semester was the first time the board's requests to exceed enrollment projections had drawn any objection. The consent decree requires the board to get Parker's approval to exceed any enrollment projections in the desegregation plan.
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    Dozen of parents turned out Wednesday night, but had not gotten a chance to address the board by 10 p.m. Many had attended community meetings Monday and Tuesday nights on the tax plan agreement at Tanglewood and Wedgewood elementary schools.

    At the earlier meetings, they opposed any attempt by the board to change the voter-approved tax plan. Only a hurricane or some other natural disaster would be sufficient cause to change what the people approved, they have said.

    The parents also are upset about proposed enrollment caps and about not feeling as if they have any say in the schools. A few have mentioned the possibility of suing to try to end the case themselves.

    Mr. CANADY. Mr. Kirk.

STATEMENT OF VICTOR C. KIRK, PRESIDENT, VICTOR C. KIRK, INC., BATON ROUGE, LA

    Mr. KIRK. To the Chair and other honorable members of the Subcommittee on the Constitution.

    Mr. CANADY. If you could pull the microphone a little closer, it would be helpful.

    Mr. KIRK. And my chair.
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    Testing. Is that better?

    To the Chair and other honorable members of the Subcommittee on the Constitution, I must first express my sincerest appreciation for your invitation to appear and testify on a subject of such national consequence. There can be no other dialogue of more importance than that which addresses the vehicle of our future as a Nation—our children. It is through them that we maintain our competitive edge in the marketplace, transmit our individual and collective values as a people, and reinforce the ideals of democracy for the world to see and hold in awe.

    I come to you as a southerner, steeped in tradition, a tradition that recognizes our unique status in American history, having been reticent toward the display of the full faith and credit to the Nation's civil rights laws. Today we return to a core issue, the desire for independence from the civil rights laws of the land. It is on this day we lead the debate on the efficacy of charter schools without intentionally mentioning States' rights versus Federal authority, Article X of the Constitution. Yet this issue has Article X as its foundation. It is unfortunate but ''we are all omnibuses in which our ancestors ride, and every now and then one of them sticks his head out and embarrasses us.''

    I am a proponent of the charter school concept. However, it is my belief that as a public school it shares a unique responsibility to report student achievement and other demographics within the larger context offered by desegregation compliance. Also, as a former member of the executive team of a local urban school system, it was my responsibility to design the operational parameters within which participation in the charter school demonstration program was determined. Additionally, as a former director of the Baton Rouge regional office of ACORN, I have on occasion testified for and against modifications to existing State law that sought the expansion and granting of exemptions to charter schools.
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    I stand behind my research that suggests the most successful charter schools began small. This fact was affirmed by a report issued by the U.S. Department of Education in a joint project with the University of Minnesota and studies performed by the present governors' education advisor. I sleep peacefully knowing that I helped construct either the language or models of implementation which safeguards the rights of those children who must depend on a public education.

    On the surface, two parallel systems of public K–12 education sounds intriguing. Yet, as we know, the devil is in the details. There appears to be an inherent philosophical contradiction that must somehow coexist, the charter schools right to effect experimentation and a Nation's obligation to the enforcement of civil rights.

    As you are aware, charter schools have the support of the President, many within the business community, and parents whose children attend them. The public has a compelling interest in their survival for the concept of competition and the results thereof are at stake. As a true business model, charter schools must not be insulated from failure nor particularly removed from public scrutiny. The establishment of desegregation indices is fundamental reporting for those schools in the public domain.

    Many proponents of charter schools will lead you to believe that educational outcomes remain the sole discourse and purpose of their presence. They will contend that growth is restrained by the enforcement of civil rights and other laws. They will assure you that they are honorable people, and they are, intent on upholding the intent of Congress to effect increase educational outcome by the removal of barriers to school success. They will be appalled at any mention of race, preferences, and protections, for they are all Americans and equal under the law—until there is a drought in the farmland, steel from a foreign land and crawfish from China land. These schools must not be allowed to operate without consideration to the damage it may cause to the fragile desegregation implementation in the East Baton Rouge Parish Public School System.
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    Accountability, however, is not synonymous with failure. Accountability includes tracking and fully reporting the movement of students by meaningful categories. Private businesses, upon entering the public marketplace, must play by the basic rules. In addition to business plans, feasibility studies and profit and loss statements, Federal reporting is essential. Accountability for charter schools, therefore, must include a determination of whether the tenets of Brown are met and that the requirements of equity and parity remain at the forefront of school choice.

    In my State, the charter school movement has advanced rapidly from eight demonstration school systems in early 1996 to the formation of Type 1 and Type 2 schools. Type 1 designates a local school system supported charter school, and Type 2 recognizes a State authorized charter school. The Type 2 designation evolved as a means for charter schools to seek redress to the State Board of Elementary and Secondary Education of a local system's denial of a charter.

    The State of Louisiana also provides legislatively appropriated dollars and grants from the U.S. Department of Education that insulate the charters from the funding wrath initially flung by local school boards. These funds are designed to facilitate planning; $5,000, $20,000 for start-up; $50,000 for first year incidental expenses; and a $100,000 no interest loan for either operations or capital expenses. For those charter schools having to fight a desegregation order, $5,000 is made available to help cover the cost of legal representation.

    Complaints to the governor that local school boards were determined to stymie their growth were responded to by the introduction of legislation containing 35 amendments to the original bill. In effect, this legislation removed the demonstration status of charter schools in Louisiana. The 5-year experiment ended abruptly in year 2. Coupled with an accountability system that calls for reconstitution and eventual decertification of poor performing schools, the State is poised to issue public vouchers to parents wishing to remove their children from schools so designated. The Senate Education Committee of the 1999 session of the Louisiana legislature came close to replacing the public school voucher concept with any school. Their ideological bent appears headed toward setting a course for the dismantling of public education. Certainly all the critical elements of this metamorphosis are present in Louisiana.
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    The advent of public vouchers in addition to the creation of charter schools is certain to become an enforcement nightmare. Presently, more than 27 school districts in our State are under review by the Eastern, Western, or Middle Federal District Court. Charter schools are not required to declare attendance boundaries. Thus, each case within each district is subject to review in order to design a compliance methodology.

    State law requires compliance with desegregation orders as well as with any other Federal law that a State and public school must pledge adherence. Neither the governing bodies of charter schools nor the Civil Rights Division has sufficient staff to provide technical support to and desegregation planning for charters, an oversight I implore that you address this funding cycle.

    It has become apparent that your advice and counsel are required. You are being asked on the one hand to free Willie, the charters, and on the other hand to sacrifice constitutional guarantees, civil rights.

    As you deliberate, I leave you with the following quote: ''I believe in the United States of America as a government of the people, by the people, for the people, whose just powers are derived from the consent of the governed; a democracy in a republic; a sovereign Nation of many sovereign States; a perfect union one and inseparable; established upon those principles of freedom, equality, justice and humanity for which Americans sacrificed their lives and their fortune. I therefore believe it is my duty to my country to love it, to support its Constitution, to obey its laws, to respect its flag and defend it against all enemies.''

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    Soon we will hear your response. We are hopeful your voices will affirm ''The American creed''. Thank you.

    Mr. CANADY. Thank you, Mr. Kirk.

    [The prepared statement of Mr. Kirk follows:]

PREPARED STATEMENT OF VICTOR C. KIRK, PRESIDENT, VICTOR C. KIRK, INC., BATON ROUGE, LA

    To the Chair and other honorable members of the Subcommittee on the Constitution, I must first express my sincerest appreciation for your invitation to appear and testify on a subject of such national consequence. There can be no other dialogue of more importance than that which addresses the vehicle of our future as a nation—our children. It is through them that we maintain our competitive edge in the marketplace, transmit our individual and collective values as a people, and reinforce the ideals of democracy for the world to see and hold in awe.

    I come to you today as a Southerner steeped in tradition. A tradition that recognizes our unique status in American history—having been reticent towards our display of the full faith and credit to the nations' Civil Rights Laws. Today we return to a core issue the desire for independence from the Civil Rights Laws of the land. On this day, we lead the debate on the efficacy of charter schools without intentionally mentioning states' rights verses federal authority, Article X of the Constitution. Yet, this issue has Article X at its foundation. It is unfortunate but ''we are all omnibuses in which our ancestors ride, and every now and then one of them sticks his head out and embarrasses us''.—Oliver Holmes—
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    I am a proponent of the charter school concept. However, it is my belief that as a public school, it shares a unique responsibility to report student achievement and other demographics within the larger context offered by desegregation compliance. Also, as a former member of the executive team of a local urban school system it was my responsibility to design the operational parameters within which participation in the charter school demonstration program was determined. Additionally, as former Director of the Baton Rouge Region of ACORN, I have on occasion testified for and against modifications to existing state law that sought the expansion of and granting exemptions to charter schools.

    I stand behind my research that suggests the more successful charter schools began small. This fact was affirmed by a report issued by the U.S. Department of Education in a joint project with the University of Minnesota, and studies performed by the present Governors' Education Advisor. I sleep peacefully knowing that I helped construct either language or models of implementation, which safeguards the rights of those children who must depend on a public education.

    On the surface, two parallel systems of public K–12 education, sounds intriguing. Yet as we know the devil is in the details. There is an inherent philosophical contradiction that must, somehow, co-exist, the right to effect experimentation within public charter schools and a nations' obligation to the enforcement of civil rights.

    As you are aware, charter schools have the support of the President, many within the business community, and parents whose children attend them. The public has a compelling interest in their survival for the concept of competition and the results thereof are at stake. As a true business model, charters must not be insulated from failure nor particularly removed from public scrutiny. The absence of federal reporting on the charter's basic obligation to mankind must remain in tact. The establishment of desegregation indices is fundamental reporting for those schools in the public domain.
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    Many proponents of charter schools will lead you to believe that educational outcomes remain the sole discourse and purpose of their presence. They will contend that growth is restrained by the enforcement of civil rights and other laws. They will assure you that they are honorable people intent on upholding the intent of Congress to effect increased educational outcomes by the removal of ''barriers'' to school success. They will be appalled at any mention of race, preferences, and protections, for they are all Americans and equal under the law. . . . until there is a drought in the farm-land, steel from a foreign-land, and crawfish from China-land. These schools must not be allowed to operate without consideration to the damage it may cause to the fragile desegregation implementation in the East Baton Rouge Parish Public School System.

    Accountability, however, is not synonymous with failure. Yet, accountability includes tracking and fully reporting the movement of students by meaningful categories. Private businesses; upon entering the public marketplace, must play by the basic rules. In addition to business plans, feasibility studies, and profit and loss statements, federal reporting is essential. Accountability, therefore, includes determining whether the tenets of Brown are applicable and enforceable, and affirming that issues of equity and parity remain at the forefront of school choice.

    In my state, the charter school movement has advanced rapidly, from eight demonstration school systems in early 1996 to the formation of Type 1, and 2, schools. Type 1 designates a local school system supported charter school and type 2 recognizes a state authorized charter school. The Type 2 designation evolved as a means for Charter Schools to seek redress to the State Board of Elementary and secondary Education (BESE) of a local system's denial of a charter.
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    The State of Louisiana also provides legislatively appropriated dollars and grants from the U.S. Department of Education that insulate the ''charters'' from the funding wrath initially flung by local school boards. These funds are designed to facilitate planning; $5,000; $20,00 for start-up; $50,000 for first year incidental expenses; and, a $100,000 no interest loan for either operations or capital expenses. For those charter schools having to fight a desegregation order, $5,000 is made available '' to help cover the cost of legal representation''.

    Complaints to the Governor that local school boards were determined to stymie their growth were responded to by the introduction of legislation containing 35 amendments to the original bill. In effect, this legislation removed the demonstration status of charter schools in Louisiana. The five-year ''experiment'' ended abruptly in year two. Coupled with an Accountability System that calls for ''reconstitution'' and eventual ''de-certification'' of poor performing schools, the state is poised to issue ''public vouchers'' to parents wishing to remove their children from schools so designated. The Senate Education Committee of the 1999 session of the Louisiana Legislature came close to repealing the ''public'' school voucher concept with ''any'' school. The ideological bent appears headed toward setting a course for the dismantling of public education. Certainly all the critical elements for this metamorphous are present in Louisiana.

    The advent of ''public vouchers'' in addition to the creation of charter schools is certain to become an enforcement nightmare. Presently more than 27 school districts in our state are under review by the Eastern, Western, or Middle Federal District Court. Charter Schools are not required to declare attendance boundaries; thus, each case within each district is subject to review in order to design a compliance methodology. State law requires compliance with desegregation orders as well as with any other federal law that a state and public school must pledge adherence. Neither the governing bodies of Charter schools nor the Civil Rights Division has sufficient staff to provide technical support to and desegregation planning for charters. An oversight I employ you to address this funding cycle.
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    It has become apparent that your advice and counsel are required. You are being asked, on the one hand, to ''free Willie''—the charters, and on the other to sacrifice constitutional guarantees—''Civil Rights''. As you deliberate, I leave you with the following quote:

  ''I believe in the United States of America as a government of the people, by the people, for the people, whose just powers are derived from the consent of the governed; a democracy in a republic; a sovereign nation of many sovereign states; a perfect union one and inseparable; established upon those principles of freedom, equality, justice and humanity for which American's sacrificed their lives and their fortune. I therefore believe it is my duty to my country to love it, to support its Constitution, to obey its laws, to respect its flag and defend it against all enemies.''

William Tyler Page—''The American Creed'' adopted by the U.S. House of Representatives April 3, 1918

    Soon we will hear your response. We are hopeful your voices will affirm ''The American Creed''.

    Thank you.

    Mr. CANADY. Mr. Bolick.

STATEMENT OF CLINT BOLICK, VICE PRESIDENT AND DIRECTOR OF LITIGATION, INSTITUTE FOR JUSTICE, WASHINGTON, DC
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    Mr. BOLICK. Mr. Chairman it is an honor to be here, and I applaud you for having hearings on this very, very important subject. I attach myself to statements that Mr. Watt made earlier, that he resents the fact that black parents or in my judgment any parents should be told what is best for their children. And that, of course, is what charter schools are all about. They are one of the many innovations that are being offered to parents to escape failing school systems or to provide a unique and individualized education for their children.

    The civil right that we are talking about at this hearing today has not really been identified, but it could not be clearer. It was identified 45 years ago by the Supreme Court in Brown v. Board of Education, and that is the right of all schoolchildren, white or black, rich or poor, to equal educational opportunities.

    Again, that is what charter schools are all about. That is why it is so frustrating and so perverse that the United States Department of Justice Civil Rights Division, which is charged with the sacred responsibility of implementing and enforcing that guarantee today, occupies the role that at one time was occupied by the likes of George Wallace and Orval Faubus of literally standing in the schoolhouse door and blocking high-quality educational opportunities for minority school children who desperately need those opportunities.

    In at least six instances in four States—Texas, Louisiana, South Carolina and Mississippi—the Civil Rights Division has invoked decades old Federal desegregation decrees to prevent charter schools from opening or to shut them down. You have heard Mr. Kopplin describe the chilling effect that this has had in schools in Louisiana. They are not even going to try to offer these opportunities if they know that the Justice Department may or may not swoop in and unseat them.
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    I know this battle personally. Not only are we representing United Charter School which has been denied the opportunity to open due to the activities of the Justice Department in East Baton Rouge, but this summer we had to raise scholarship money for 20 children in Children's Charter School, a demonstrably successful charter school in East Baton Rouge which serves an overwhelmingly minority and low-income student population because the Justice Department, which had allowed the school to open a couple of years ago with no complaint whatsoever, suddenly decided on a whim that this school needed the authority of the Federal court on the eve of the school year to expand as was anticipated and directed in its original charter.

    The school was unable to hire a teacher because it is on a shoestring, like all of these schools are. And so private funds had to be raised. Eventually, the local pressure in the press I think forced the Justice Department to suddenly say, oh, us? We don't have a problem. Gee, I wonder what all this fuss is about.

    It is happening over and over again, and it has major nationwide ramifications. There are 19 States that have charter school laws and that also have Federal desegregation orders. The Civil Rights Division's involvement in many of these cases could determine the future viability of one of the Nation's ease most vibrant educational reforms.

    What is it that the Justice Department can assert in these contexts? I believe there are two arguments, so it is hard to pin them down. First, desegregation decrees typically govern every aspect of school governance, down to the level of paper clips. Hence, anything that changes the status quo could be said to violate the decree and to invite Justice Department oversight, even if it promotes the underlying objectives of desegregation, which many of these decrees have lost sight of.
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    Second, the charter schools are usually predominantly minority, thereby creating new schools that may be out of compliance with the rigid racial parameters that are contained in many of these decrees. But these are schools of choice chosen by minority parents for the excellent quality of education that they offer. Moreover, by attracting minority students, the charter schools make it easier to racially balance the remainder of the school system.

    There are numerous problems with the Department of Justice's position. First of all, many of these decrees, as Mr. Galloway has eloquently testified, have long outlived their utility. They have caused white flight and created heavily one race school districts. In East Baton Rouge, the racial parameters are absolutely perverse, because the schools are required to be within 15 percent of the overall percentage of minority kids in the school which is about 70 percent. A school in East Baton Rouge Louisiana which is 50 percent white and 50 percent black is a segregated school under the decree that operates there. This is crazy.

    It is the Department of Justice's obligation under the law to seek termination of judicial control once vestiges of discrimination have been eradicated. I hope the chairman will ask the Justice Department how many unitary decrees has it sought over the last 6 and a half years.

    The Department of Justice refuses to issue any objective standards with regard to charter schools. In Louisiana, it should have no fuss whatsoever. The State of Louisiana is not a party to this litigation. It should not have to answer to the Justice Department at all. These schools go above and beyond the obligations of desegregation. They should not be molested. They should not be required to go through a lengthy process unless they can be shown to be intentionally segregative; and, of course, they are not.
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    Finally, the Department of Justice lawyers on an individual basis have way too much discretion, way too much power. They are literally running these school systems. They have no qualifications to do so, nor do they have the authority to do so.

    We will represent United Charter School and its parents this year in litigation seeking approval. As Mr. Kopplin noted, the Justice Department has not even allowed the school to appear in court as an intervenor to assert its own interests. Any motion that it is promoting charter schools is simply not supported by the record here.

    We hope that this subcommittee will demand a complete audit of ongoing desegregation orders by the Department of Justice and also a clear policy on charter schools that brings the rhetoric of the Clinton administration into conformity with the practice of the Civil Rights Division. It is not that way today. Forty-five years after Brown v. Board of Education we cannot ask parents like Mr. Galloway to wait a moment longer when educational opportunities are available. Until United Charter Schools and others are allowed to open, that promise is illusory.

    Thank you, Mr. Chairman.

    Mr. CANADY. Thank you.

    [The prepared statement of Mr. Bolick follows:]

PREPARED STATEMENT OF CLINT BOLICK, VICE PRESIDENT AND DIRECTOR OF LITIGATION, INSTITUTE FOR JUSTICE, WASHINGTON, DC
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    Mr. Chairman and members of the subcommittee, thank you for the opportunity to testify on the activities of the Civil Rights Division with respect to charter schools and desegregation. The Institute for Justice represents United Charter School, a charter school that has been approved by the East Baton Rouge school board but not yet allowed to open its doors. We also represent families who would like to avail themselves of the educational opportunities the school would provide. All of those families are black and of limited economic means.

    Mr. Chairman, we thank you for having this hearing. For the issue we are here to discuss is vitally important: should desegregation decrees, which are intended to secure equal educa tional opportunities for minority schoolchildren, be used to deny educational opportunities for those very youngsters? The answer is obvious to any clear-thinking person: of course not. But tragically, that obvious answer somehow has escaped certain officials in the United States Department of Justice's Civil Rights Division, along with some ideological zealots in certain so-called civil rights organizations. So the perverse consequence is that in East Baton Rouge and elsewhere, black schoolchildren are being denied precious educational opportunities in the name of securing their civil rights. George Orwell, it seems, was off by 15 years.

    This question bodes national ramifications: at least 19 states with charter school programs also have school districts that are subject to ongoing desegregation decrees. What happens in East Baton Rouge may determine whether charter schools—innovative public schools that are sponsored and operated by teachers and community leaders, and chosen by parents who want to send their children there—will be allowed to fully realize their enormous potential.
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    More than 500 school districts across America remain under federal desegregation orders, many of them dating back three or four decades. Though critically necessary and well-intentioned at the outset, most of the decrees have long outlived their utility, as forced busing and other misguided measures have encouraged white flight and produced school systems that are poor and heavily one-race. The recent court decision to terminate the desegregation decree in Charlotte, North Carolina is the latest harbinger that courts are recognizing to imperative of getting out of the business of running schools.

    The East Baton Rouge desegregation case dates back 43 years. In other words, the grandchildren of the original plaintiffs are now attending school there. Every year, it becomes more difficult to racially balance the student population due to the dwindling number of white children. But the Court refuses to relinquish control, and the Justice Department is not about to ask it to do so.

    Charter schools are one of the methods the State of Louisiana has embraced to improve educational opportunities. In Louisiana, charter schools must serve predominantly disadvantaged student populations. Two years ago, a community group with backing from Sabis International proposed United Charter School, which would serve as many as 650 students, mostly poor and black, in grades K–8. The same group operates the highly successful Children's Charter School, which has more at-risk schoolchildren than any other school in the parish. United Charter School was enthusiastically endorsed by parents and community leaders, and the school board granted the charter.

    But despite the fact that three other charter schools were already operational in East Baton Rouge without having received court approval, the Justice Department's Civil Rights Division decided that United would have to secure approval. The Division then opposed the school board's motion to have the matter considered by the court, citing more pressing concerns, and then successfully opposed the school's efforts to intervene in the lawsuit to raise the matter itself. So two years later, the school still is not open. Clearly, the Civil Rights Division does not consider high-quality educational opportunities for black children a pressing concern—even though that is precisely its mandate in this area.
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    United Charter School would aid, not detract from, the objectives of desegregation. Not only would it provide educational opportunities for children who are intended beneficiaries of the decree, it would disproportionately attract minority students, making it easier to racially balance the other schools. Objections have been voiced to the creation of an overwhelmingly black school—but what is the nature of the objections if the school is affirmatively chosen by parents and offers a superior education?

    Other examples abound. When Children's Charter School sought to expand to grades three and four, as its charter provides, the Civil Rights Division decided that it needed court approval too, plunging the school and its second graders into uncertainty. Only when the school year was about to start did the Civil Rights Division acquiesce and the court approved the expansion.

    The Division also blocked another Sabis school in St. Helena parish, despite the fact that the school district is 91 percent black and impossible to racially balance given that it has only one high school, junior high, and elemantary school.

    The Division also attempted to shut down New Vision Charter School in East Monroe, Louisiana, but federal judge F. A. Little Jr. refused to do so.

    And in South Carolina, the Division successfully thwarted a school district's efforts to convert certain schools to charter schools. The Division ordered the district to maintain existing schools and attendance zones, period. It did not even consider the proposed charter schools' effect on racial balance or educational opportunities.
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    The law certainly does not require such absurd outcomes. The United States Supreme Court repeatedly has ruled that desegregation decrees should be of limited duration, and that measures to maintain racial balance in perpetuity are impermissible—commands that the Civil Rights Division under ''acting'' Assistant Attorney General Bill Lann Lee routinely has ignored. Moreover, charter schools are intended to provide educational options above and beyond those already provided. So long as they do not frustrate the proper objectives of desegregation, what is the justification for opposing them?

    What makes matters worse is that the Civil Rights Division has never articulated, in litigation or in policy, the standards it deems appropriate for charter schools in the desegregation context. As a result, in Louisiana its conduct has been appallingly arbitrary. Some schools are allowed, others are benignly ignored, others are stopped in their tracks, still others get up and running then have to go to court when they want to expand. No one knows what guides the Division's enormous and destructive discretion, and the Division refuses to tell anyone. How can someone predict—much less follow—the law if the law enforcer will not define the law? That is not law enforcement, it is despotism.

    Not surprisingly, Louisiana officials have complained publicly about the ''chilling effect'' the Civil Rights Division's actions have created. What charter school sponsor is going to invest a massive capital outlay to start a school when the Justice Department may come in and shut it down whenever it has a whim to do so?

    All that is ironic given the Clinton Administration's professed support for charter schools. President Clinton has declared that ''the only way public schools can survive . . . is if all of our schools are eventually run like . . . charter schools.'' I agree with the president. But why then is his Civil Rights Division deploying its mighty arsenal to frustrate that vital educational reform?
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    If the Justice Department will not enforce the law, I ask this Committee to take steps to do so. I urge the Committee to demand of the Civil Rights Division an accounting of all of its ongoing desegregation actions, along with its plans in each of them to return control of the school districts to local officials. I also urge the Committee to take steps to move the Civil Rights Division out of the schoolhouse doors. It is a tragedy—and a travesty—that the path to educational opportunities for minority schoolchildren is blocked by the United States Department of Justice Civil Rights Division.

    Thank you, Mr. Chairman and members of the subcommittee, for hearing and responding to these urgent concerns. With your permission, I append to these remarks a copy of an article on this subject I published in the Wall Street Journal, along with a copy of a letter from Louisiana officials setting forth their concerns.

62858l.eps


State of Louisiana,
Office of the Governor,
Baton Rouge, LA, June 7, 1999.
Hon. JANET RENO, United States Attorney General,
Main Justice Building,
Washington, DC.

Hon. RICHARD RILEY, Secretary of Education,
United States Department of Education,
Washington, DC.
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    DEAR SECRETARY RENO AND SECRETARY RILEY: The improvement of Louisiana's educational system is one of my administration's top priorities. We have accomplished a number of reforms, with a significant enhancement of our state's charter school law being one such reform. Although the number of charter school nationwide have significantly increased since President Clinton took office, various actions by Justice Department officials have had the effect of blocking the opening of several charter schools in my state. These actions have also caused other chartering groups to spend their limited resources on attorneys rather than on the education of low-income minority students whom these schools would have primarily served.

    Justice Department officials have worked closely with my staff regarding some of Louisiana's prisons and higher education entities, and I appreciate their efforts. The difference with charter schools appears to be that of timing. Prisons, community colleges and even traditional public schools are large public institutions with ready access to attorneys. Since these entities are already operating, there is also more time to resolve issues. With charter schools, individual teachers, parents , and community leaders are trying to develop these schools with no institutional resources and without the luxury of unlimited time. I firmly believe that they need to be treated differently. Months of meetings and legal paperwork (either done intentionally or not) only serve to slow down the creation of charter schools.

    Indeed Louisiana's charter school efforts are progressing only because our State Board of Elementary and Secondary Education has taken an ''innocent until proven guilty'' approach. Charter schools (that have met all other aspects of a rigorous educational and financial review) are being authorized to open, with the very clear caveat that the federal court can intervene at any time to close them down if they are having adverse impacts on existing desegregation orders. Without this approach we would have few new charter schools in this state. I request that your agencies formally support this approach, and work with us to make it work for our students.
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    My staff has met several times with Justice Department officials to discuss these issues. A variety of correspondence has also occurred. Justice Department officials have stated that they are supportive of expediting federal court approval for potential charter schools. Unfortunately, we have been unsuccessful in developing a mechanism to turn these expressions into actions which will indeed expedite the process of opening charter schools.

    It is my understanding that Senator Landrieu's office will soon be arranging a meeting between my staff and senior officials from the Justice Department. I welcome such a meeting and thank you for working with us to help accomplish a common goal—an improved educational system for all students, especially low income minority students. My education advisor, Dr. Louann Bierlein, will be in contact with Senator Landrieu's office and can answer any questions or provide any information you or your staff may have or need.

    Thank you for your cooperation in this matter.

Sincerely,


M.J. ''Mike'' Foster, Jr.
c:

U.S. Senator Mary Landrieu
Raymond Fisher, Associate Attorney General, U.S. Justice Department
Anita Hodgkiss, Deputy Assistant Attorney General, U.S. Justice Department
Franz Marshall, Acting Deputy Section Chief, U.S. Justice Department
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    Mr. CANADY. Dr. Elam.

STATEMENT OF DONNA ELAM, ASSOCIATE DIRECTOR, SOUTHEASTERN EQUITY CENTER, THONOTOSASSA, FL

    Ms. ELAM. Good morning and thank you, Mr. Chair and the committee members, for this honor. Although it humbles me, because my voice is not just a single voice, it speaks for many in the charter who support the charter movement.

    I wear several hats as associate director of the Southeastern Equity Center as well as the cofounder of a charter school called East Side Multicultural Community School, and that school is placed in Hillsborough County in Florida under a desegregated court order. And so, even though I may stray away from this testimony, I do submit this testimony.

    I think it is important, listening to my other panel members, to emphasize the need for charter schools and the innovation that is available. At Eastside Multicultural School, because of the desegregation order that the sponsoring county was under, we spent a considerable amount of time in marketing, recruiting to make sure that we addressed the desegregation order. When those numbers weren't in place to the level that we knew that they should be, what we did, we approached Superintendent Leonard and Dr. Evans, who is addressing the charter as well as the desegregation order, and spoke to them about writing a grant to use a strategy until the numbers went in line.

    So what we did, we wrote a grant which was school initiated, submitted it to the State Education Department, and was funded for a program, the multicultural exchange program, which we are doing an exchange of majority and minority students so that they still have some opportunity for interaction as we address the desegregation order.
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    We still actively are pushing for the numbers to go up, because we know that it is important. I am an advocate for equity, and I always will be for equity and excellence in education, and we saw that this program was a way to do it. And it is not on a superficial level. It is on a level that addresses instruction.

    One group of students is bringing in instruction with decision making and sharing those concepts with the children coming from Eastside who are talking about—well, we have talents, a talents program. So our children are sharing that concept with the students. So it is on an instructional level. It is not—we are very careful not to be doing something just on the surface.

    So the exchange is continuing to grow. In fact, it is expanding. Hillsborough is excited about what has happened in the past pilot year, so we are expanding the program so that we can do more interaction with kids, with majority and minority students, even though our numbers are not actually in that building. But the numbers are reflective of the community schools in the surrounding area.

    I thought it was important to bring that out after I heard the discussion today, because it was a major concern for us, you know, holding that position in the community.

    I was going over The Washington Post this morning, and I saw the whole movement with character education. I think we need to look at some of the most creative things that are out there that are innovative to bring into charter schools to address what is happening in our Nation, and that is bringing in multicultural education and looking for innovative strategies to make sure that we don't fall back into resegregating our schools. And if it is not in the days and hours of that classroom time, we need to find ways of bringing some kind of interaction with minority and majority students.
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    The rest of my position is in my written testimony, and I just want to close with that.

    Mr. CANADY. Thank you, Doctor. You are going to get the award for finishing within your time. You are the only one so far. We appreciate that.

    [The prepared statement of Ms. Elam follows:]

PREPARED STATEMENT OF DONNA ELAM, ASSOCIATE DIRECTOR, SOUTHEASTERN EQUITY CENTER, THONOTOSASSA, FL

NEW DIMENSIONS: THE CHARTER SCHOOL MOVEMENT

Introduction

    Charter schools have become an accepted part of the panorama of public education in 34 of the 50 states. Charter schools are public schools. They operate under a performance contract. There is some freedom from most rules and regulations. Yet charter schools are held strictly accountable for Academic and Financial Results. Since the 1991 passage of the first state's charter legislation there has been growth in both the number of states with charter legislation as well as charter schools opening in those states.

Statement of Issues

    The testimony presented today is a position shared by many in the Charter School Movement and focuses specifically on five dimensions: Curriculum, Instruction and Assessment, Organization, Diverse Partnerships, Client-Oriented, and Professional Institutions. These dimensions are those of inspired educators, parents and community representatives who want to create a different learning experience for children. First and foremost I must emphatically state that I support and believe in public education. The position that I support is to address the diverse needs of the students who fill the rooms of our schoolhouses to perform their psychologically and academically best. The Charter School experience may offer an alternative vision of schooling that may not be realized in the traditional public school setting.
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Discussion of Issues

    As an educator of over 20 years, my vision of schooling utilizes a formula of research and best practices combined with consideration of the cultures of the students and their families who attend them. As we aim for educational equity and excellence in our Nation's schools, I see charters as an additional public school choice option to address those diverse needs of the students who may need that alternative to succeed in school.

    There are five dimensions demonstrated in charter schools:

1. Curriculum, Instruction and Assessment

    Curriculum, Instruction, and Assessment are of paramount importance to charter schools. There is a great opportunity to employ a variety of approaches to curriculum and instruction in a charter program. Many programs are incorporating innovative, hands-on and unconventional approaches to learning. One of the charter programs, Eastside

    Multicultural Community School, is retraining teachers to understand the learning of children and building in successful educational experiences at all levels (for students, staff and parents) as the foundation of its curriculum and instruction.

    A multicultural curriculum that is reflective of the student population it serves is the first step to success. The connection between critical pedagogy and multicultural education is receiving growing attention in the educational literature and is a promising avenue for expanding and informing both these philosophical frameworks. (Gay, 1995; Nieto, 1996; Sleeter and Mclaren, 1996)
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    Multicultural education has a greater possibility of positively affecting student learning when it is approached through the lens of critical pedagogy (Nieto, 1999). Viewing education this way encourages teachers who are interested to rethink what and how they teach.

    It is essential for us to distinguish what we expect children to know and be able to do (standards) from how we will assist them in reaching that knowledge and skill (strategies and techniques). In my experience as a trainer, I see many content-oriented teachers knowledgeable in their field but less proficient in their service delivery to transfer that knowledge to their students. The smaller settings and hunger for an alternative vision to meet the needs of youngsters in charter programs is a perfect training ground for such development. This type of curriculum embraces higher order thinking, multiple perspectives and integrates knowledge, action and caring.

    The curriculum at Eastside Multicultural Community School is supported with a Multicultural Exchange Program funded by a school-initiative grant from the State Education Department. The MEP was a proactive strategy to address the desegregation court order of the sponsoring county. This is just another example of the innovation opportunities evidenced in charter programs.

    Curriculum and instruction designed with the belief that all students have important talents and strengths are used in the service of their own learning.

    Assessment must be the driving force of evaluating what works and what does not. Too often assessment is an afterthought, but charter schools are well aware of the importance of documentation. Baseline data is gathered at the onset of a child's experience in a charter with intervals of follow-up assessment. We are witnessing a number of students received by charters who arrive with reading and computation skills two to three years behind the grade classification. Therefore collecting the baseline assessment becomes paramount to accurately measure a student's actual academic growth in the new setting.
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2. Organization

    Growing evidence is pointing to the importance of student identification with teachers and schools in promoting learning (Nieto, 1999). Schools are organized differently in charter schools with a more family-like atmosphere. The schools are smaller, classes are smaller, and comradery of teachers and staff responsible for groups of children create a positive school climate for students and their families..

3. Diverse Partnerships

    Funding (or the lack of it) creates a need to look into creative and diverse partnerships to the most effective and efficient ways to serve the school. Beginning with the premise that children and their families have important talents that can promote learning has important implications for accommodating school policies and practices to the lives of students. Therefore our primary partner is our parent/guardian/family. In addition, parents, community reps, businesses, universities, retired educators, advocate groups, and cultural organizations have been found to offer tremendous support to charter programs.

4. Client-Oriented

    Parents are making choices of where they wish to send their children to school. Charters are developed to focus on the educational needs of children and families they serve through surveys, needs assessments, and focus groups with the clients themselves. Many of the charter school studies report high satisfaction levels from students and their families about the new hope and high expectations they are experiencing.
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5. Professional Institutions

    Teachers and staff have made a concerted effort to work at a charter school setting. Often the financial benefits are not the same, but the professional satisfaction outranks that. Professional staff development is vital for the new and alternative visions of the charter program to become a substantial reality.

Conclusion

    The Charter concept is simple, yet powerful. It begins at a different starting point, a client-oriented base umbrella of public education. Effects on school districts with charter programs as cited in a 1998 report, ''How are School Districts Responding to Charter Laws and Charter Schools'', include increased public relations and changing educational offerings. Other effects of these schools study, success of making academic gains are summarized in student achievement and other aspects of accountability such as student behavior and attitudes, parental involvement and school climate.

    Intensive training and professional development for all stake holders (administrators, teachers, staff, parents and students) is essential in understanding how children learn best.

    There are many positive indicators of charter schools. Some of those indicators are named below.

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    Charter schools

 serve many minority, low-income and ESE Students,

 have abundance of parental interest,

 are very high attendance and parent involvement rates, and

 utilize many examples of innovative programs and practices.

    In conclusion, I would like to bring to the attention of policy and decision-makers in education to be aware of some issues confronting charter programs. Those issues involve :some high-minority and ESE Clustering; selective districts off-loading of difficult students; and the myth of charter school flexibility (Regulatory Re-loading leads to many locally imposed rules being re-burdened back to school)

    Educational reform must chart its course in a direction to educate ALL of America's children to high standards and expectations.

    Mr. CANADY. Mr. McCollister.

STATEMENT OF ROLFE McCOLLISTER, JR., BOARD OF DIRECTORS, CHILDREN'S CHARTER SCHOOL, BATON ROUGE, LA

    Mr. MCCOLLISTER. Mr. Chairman and members of the committee, I do feel it is an honor to be here before you today, and I appreciate the opportunity to comment on the Justice Department's role in obstruction to educational opportunities provided by charter schools in Baton Rouge.
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    I have been involved with this movement for 8 years in Louisiana to establish charter schools which I believe can innovate as well as educate. We have one school which we finally got opened 2 years ago in that 8-year struggle which is a kindergarten through 4th grade now which has 100 students. That school is operating and has been very successful. We have another school which we attempted to open, the United Charter School, which would be the largest charter school in Louisiana. It would open K through 8 with 650 children and expand each year until it was K through 12 with 1,200 students. That would have been located in an inner city abandoned mall that was going to be renovated and be in walking distance from many of those neighbors' minority children in the area. That school has been closed due to the Justice Department's opposition.

    The headline in the paper in Baton Rouge just a few weeks ago says EBR student count at 20-year low. This goes back to 1979 when Baton Rouge was at its peak of 67,000 students enrolled. During that 20 years, despite our parish growing 10 percent in population, the student enrollment has declined 20 percent to now 54,550 students, most of them being white that have moved out of the parish and making it more difficult. Our parish demographics are about a third African American. Our student population in the public schools is now approaching 70 percent African American.

    At the same time, our charter school, the Children's Charter School, while people are moving out of the public schools, our public school interest—there is a waiting list of parents to get in, those being mostly minority parents. At our first meeting with the Justice Department regarding United Charter, the Department attorney said he represents, when he introduced himself, the people of the United States. I have to ask the question, does this include the parents and children in Baton Rouge, Louisiana?
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    Our Children's Charter School began K through 2, and it has grown to K through 4, and the expansion plans, as Mr. Bolick mentioned, were met with resistance this summer from the Justice Department and the NAACP; and we, of course, ended up in court. Fortunately, the judge allowed us to continue so our third graders could move on to the 4th grade. They would not approve 5th grade, and we have already begun the motion to approve 5th grade for next year. I would like to ask why the opposition to something that is clearly working for minority at-risk children, and I have with me here the test scores showing the evidence of that success.

    I would like to share a couple stories from those meetings and comments made by the Department attorneys. Both of the groups, the NAACP and the Justice Department, seem to claim they speak for minority parents in Baton Rouge. In my opinion, they do not. In fact, they have repeatedly acted against the express interest of many minority parents in the parish.

    We have school applications to the United Charter School made by parents. We have petitions signed by minority parents in the neighborhood. We have parents who have gone to court with us as well as spoken before the school board. And I have a file here of letters from our mayor as well as black legislators and black ministers in support of opening the United Charter School, the same school the Justice Department has opposed.

    Even when minority parents who know best what works for their children, as Congressman Watt pointed out, voice overwhelming support for the charter schools as a means to best improving their children's education, the Justice Department ignores their voices.

    This attitude was evident at the very first meeting between Children's Charter and the Justice Department. For example, when I told the Department's attorney that some minority parents believe that the United Charter School in their words was their last hope for their children, he replied, quote, ''What the parents want isn't important to me. I am interested in the law.''
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    Our Children's Charter School has approximately 90 percent African American students, and it is a 98 percent at-risk school, the highest in the school district. We operate from 7 in 9 morning to 6 p.m. We operate 11 months out of the year and have a 20 to 1 pupil-to-teacher ratio. We normally have 75 percent attendance by our parents at our monthly fellowship dinners. This is a kind of parental involvement that everyone says is so desperately needed.

    Why is the Justice Department opposing us? Doesn't the Children's Charter School sound like the type of school and educational experience the Justice Department and the NAACP are supposed to be fighting to create? Why aren't they champions of providing these choices to minority parents instead of the biggest critics?

    It is evident to me that the Department cares more about racial statistics than about really improving educational opportunities for minority children. For example, at a second meeting with the Justice Department, we explained that charter schools are open to anyone to apply. The Department told us we must agree not to accept any white students coming from a school where they were a minority. The nearest school to our site is Melrose Elementary, which has an enrollment of 356. With only five students among them counted as white, we were told that we could accept all the black students but would have to deny the five other students if they applied. We refused to accept those conditions. It just so happens the five students classified as white or nonblack are all Hispanic. Would the Justice Department have us discriminate against Hispanic?

    I pointed out if the students were denied choice their parents might become angry and pull out of the public schools altogether and move to private schools. The Department's lawyer responded, I don't care if they go to private school. They just can't go to your charter school. He went on to say if we wouldn't agree to this point our discussion and the meeting was over. And so it was.
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    The parents and the children in this community, black and white, are the ones suffering while the fighting goes on. And they are getting weary and losing hope.

    These children are more than statistics, black and white. In fact, I have with me from the paper, just to show you they have faces, these are the children from the Children's Charter School. They are conducting a cheer for their school at the end of the year gathering.

    Do the lawyers for the Justice Department and the NAACP really believe they are representing the interest of minorities by keeping the Children's Charter School from expanding and by keeping the United Charter School from opening? Where is the justice in denying these desperate parents from choosing a nurturing environment and quality education for their children?

    In closing, the Children's Charter School Board and the citizens in our community would like to know just which people of the United States the Justice Department is representing by blocking the schoolhouse door. Thank you.

    Mr. CANADY. Thank you, Mr. McCollister.

    [The prepared statement of Mr. McCollister follows:]

PREPARED STATEMENT OF ROLFE MCCOLLISTER, JR., BOARD OF DIRECTORS, CHILDREN'S CHARTER SCHOOL, BATON ROUGE, LA
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    Mr. Chairman and members of the subcommittee, thank you for the opportunity to comment on the Justice Department's impact on the educational opportunities available to minority children in my community. I speak to you in my capacity as a founder and member of the Board of Directors of Children's Charter School, Inc., a non-profit corporation formed by citizens of Baton Rouge who are concerned about the educational opportunities available to local children. We at Children's Charter hope to improve those opportunities by running two charter schools. The first, Children's Charter School, is already open, with grades K–4. The second, United Charter School, which is the largest charter to be granted in Louisiana, has not been allowed to open yet because of the Justice Department's opposition. As a result, 1200 children, mostly black and low-income, are denied high-quality educational opportunities.

    Unfortunately, our efforts to open these schools and to improve the educational opportunities available to our community's children, especially lower-income and minority children, have been thwarted at every turn by the Justice Department. Although the Justice Department's lawyer has proclaimed in our initial meeting that he represents ''the people of the United States,'' the Department's actions show that they do not care at all about what is really best for the people of East Baton Rouge Parish, especially what is best for our school children.

    First, the Department's involvement in our school system has done nothing to improve educational opportunities for minorities—or anyone else, for that matter. It's ironic, because the whole point of the Department's involvement and the desegregation suit by the original minority parents 43 years ago was to improve the education available to minority school children in Baton Rouge. Unfortunately, that has not happened. In fact, the quality of education available to most students in the East Baton Rouge Parish system has suffered.
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    Despite the parish's population growth (up from 366,000 20 years ago to 396,000 today), attendance at Baton Rouge public schools just hit a 20-year low—down to just under 55,000—compared to the peak of 67,000. Despite the parish's 10% growth, the school system's population has declined 20% over the past twenty years. It is interesting to note, that is how long the Department's current lawyer, who claims to represent ''the people,'' has been on the case.

    Most of Louisiana's schools are in trouble. The state's newest accountability report shows that 9 out of 10 of our schools fall below the national average in the LEAP test, which is a nation-wide standardized test. Our capital city did not fare well, either, and parents want more. Recently in Baton Rouge, 5,568 low-income children—mostly minority—applied for 250 private scholarships from the Children's Scholarship Fund. Among those selected, the average household income was just above $16,000. The families contributed 37% of the tuition costs—an average of more than $800 per child—but this sacrifice was worth it to the parents because they could choose the school.

    These numbers demonstrate that Baton Rouge parents know what we all know: that our public schools are failing our children, especially many minority children and those from lower-income families who don't have the option of going to private schools. For them, creating improved educational opportunities within the parish school system is their only hope—but nobody seems to be representing their interests, least of all the NAACP and the Justice Department.

    That's where our group, Children's Charter School, Inc., comes in, along with two other charter schools. Encouraged by learning of successful charter school programs in other states and seeing a need for alternatives and innovation in our own state, we hoped to bring this exciting educational opportunity to the children of East Baton Rouge. We planned to open two schools. One, Children's Charter School, is up and running. We have grades K–4—although was a tough fight every step of the way this year to expand the school to fourth grade so that the students could remain in our elementary school.
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    Our other planned school, United Charter School, was approved by our local school board and created much excitement in the inner-city neighborhood. It received support from our mayor, two African-American state legislators, and two African-American ministers. Despite this broad community support, it remains closed due to opposition from the Civil Rights Division of the U.S. Justice Department. What justice is this? When we tried to intervene in the case and ask for a court hearing, the Justice Department opposed us and the federal judge turned us down.

    But, what is really important is that the parents of East Baton Rouge—black and white—strongly support charter schools. We have had waiting list for each of the grades at the Children's Charter School and normally have 75 percent of our parents attend our monthly fellowship dinners at the school. This is the parental involvement everyone desires—and our school has a 98 percent at-risk population. Why would the Justice Department oppose a school like this?

    This same school offers an extended-day program and runs through the summer until July 23—eleven months. There are 20 students in each class with a teacher and an aide. One African-American parent, whose child is now making A's, said, ''My daughter gets a lot more help and they take a lot more time with her.'' Another black parent said, ''The parents are really involved. They have a voice in how the school operates. It's more a community-type thing.'' And a student added, ''I learn more stuff here.'' Children's Charter School is approximately 90% African-American. The at-risk percentage is 98%—the highest in the East Baton Rouge Parish School system.

    Children's Charter is located in an inner-city area near downtown where parents have never had a choice concerning their children's education. For the first time ever, these parents can choose the school that they think will best educate their child—and 100 have chosen Children's Charter School.
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    We hoped to offer the same opportunity to another 1200 students by opening United Charter School to serve grades K–12 in an inner-city mall. Despite overwhelming community support, the Justice Department has succeeded in preventing its opening by blocking the required court approval.

    You would never know, however, of this support for the charter schools from listening to the Justice Department and its ally the NAACP. Both groups claim to speak for minority parents in Baton Rouge, but they do not. In fact, they have repeatedly acted against the expressed interests of many minority parents in the parish.

    Even when minority parents—who know best what works for their children—voice overwhelming support for charter schools as a means to best improving their children's education, the Justice Department ignores their voices. This attitude was evident at the very first meeting between Children's Charter and the Justice Department. For example, when I told the Department's attorney that some minority parents believed that United Charter School was their ''last hope'' for their children, he replied, ''what the parents want isn't important to me. I'm interested in the law.''

    When we mentioned the success of our Children's Charter School, we were told that it was an ''illegal school which had never received his or Judge Parker's blessing.'' The Department was not interested that these children were learning to read and the parents were very pleased with their experience. In fact, to this day, the Department's attorney has never set foot in our charter school. He simply looks at the numbers—white and black. That is a travesty of justice.
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    It has been quite evident that the Justice Department, instead of caring about what's really important—providing high quality educational opportunities—instead only cares about two things:

    One, protecting the existing public schools (despite their failings) and their coffers from competition, and two, racial statistics.

    The justice department has repeatedly fretted about how charter schools ''take kids'' and ''take money'' from the public schools. These worries don't make any sense. The charter schools are public schools—so how are they taking anything from the public school system? Charter schools don't ''take'' anything away from the system, they only offer an alternative choice to traditional public schools. Students attend by choice only, the same as a magnet program. But a magnet school is not an option for many of these at-risk children. Charter schools are, but the Justice Department is denying them that choice.

    Doesn't the Children's Charter School sound like the type of school and educational experience the Justice Department and the NAACP are supposed to be fighting to create? So why aren't they praising the school board for creating the charter schools instead of fighting us? Why aren't they the champions of providing these choices to minority parents instead of the biggest critics of such choices?

    It is evident that the Department cares more about power and racial statistics than about really improving educational opportunities for minority children.

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    For example, at a second meeting with the Justice Department, we explained that charter schools are open to anyone to apply. The Department told us we must agree not to accept any ''white'' students coming from a school where they were a minority. The nearest school to our site is Melrose elementary, which has an enrollment of 356—with only five students who count as ''white.'' We were told that we could accept all of the black students but would have to deny the five other students if they applied. We refused to accept those conditions. It just so happens, the five students classified as ''white'' or ''non-black'' are all Hispanic. Would the Justice Department have us discriminate against Hispanics?

    We pointed out to the Justice Department, that regardless of what it wanted to pretend, Melrose Elementary was already a ''one-race school'' and holding five ''white'' students, who are actually Hispanic, hostage would not change that. They should have the same choice as any other student. I pointed out that if the students were denied the choice, their parents might become angry and pull out of the public schools altogether and move to private schools. The Department's lawyer responded, ''I don't care if they go to a private school, they just can't go to your charter school.'' He went on to say if we wouldn't agree to this point our discussion and meeting was over.

    The superintendent of the East Baton Rouge public school system, Gary Mathews, has sounded an emotional warning that the schools are at a ''tipping point.'' This means that the number of white students will fall—again—and it will be practically impossible to reverse those trends within a year or two. The dire consequence of that, Mathews and many other observers believe, is a heavily black school system that will be facing enormous difficulties with an economically challenged student population, and with little realistic political chance of winning from voters the tax support needed for better schools.
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    Today, almost 70 percent of the system's population is African-American. The theology of desegregation formulas—a 50–50 black-white ratio—isn't relevant to the challenges facing the system's children. It has become so convoluted that in our current consent decree, a school that is 50% white and 50% black is not defined as ''desegregated.'' What is relevant is the quality of education available.

    Yet, it seems the Justice Department and the NAACP would rather we spend more time in the courtroom fighting about harming the already failing public schools and about racial balances than in the classroom educating children—particularly African-American children.

    I believe the Justice Department and the NAACP are acting in bad faith in pretending to represent the educational interest of African-Americans in the community. There is no monolithic ''black opinion.''

    Who is the NAACP representing, I wonder? The Rev. Lee Wesley, a local black pastor of Community Bible Baptist Church, has his opinion. He told me, ''When it comes to education, the NAACP does not represent the view of the majority of blacks in EBR parish.'' He added, ''The overriding concern of blacks is children getting a quality education—and that is being done through charter schools.''

    Most of the people I speak with, many of whom are African-American, agree with Rev. Wesley and no longer understand the objectives of the NAACP or U.S. Justice Department. Are they only focused on desegregation or has it simply become a power struggle to run the whole system? The parents and children in this community—black and white—are the ones suffering while the fighting goes on, and they are getting weary and losing hope.
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    Do the lawyers for the Justice Department and the NAACP really believe they are representing the interests of minorities by keeping Children's Charter School from expanding and by keeping United Charter School from opening? Where is the justice in denying these desperate parents the opportunity to choose a nurturing environment and quality education for their children?

    In closing, the Children's Charter School board and the citizens in our community would like to know just which ''people of the United States'' the Justice Department is representing by blocking the school house door.

    Mr. McCollister is a co-founder and member of the board of directors of Children's Charter School, Inc. In 1997 and 1998 school, that entity received Title I grants in the amount of $50,793. It also received charter grants through the Louisiana Department of Education in the sum of approximately $70,000. Children's Charter School received federal lunch money grants in 1997 and 1998 of an estimated $27,000 and $36,000 respectively.

     

THE ADVOCATE ONLINE—PUBLISHED ON 10/2/99

EBR STUDENT COUNT AT 20-YEAR LOW

By J. Taylor Rushing, Advocate staff writer

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    Enrollment in the east Baton Rouge Parish public school system has dropped to its lowest level in at least 20 years and probably will cost the schools $2.7 million in state funding, the system's top financial official said.

    Enrollment Friday was 54,550 students, 1,212 fewer than the 55,762 officials had predicted and 957 fewer than last year.

    The enrollment taken by the schools Friday is one of the most significant of the year because the state uses it to help determine school systems' funding.

    The enrollment is the lowest since the school district was declared segregated by a federal judge 20 years ago. Enrollment in 1979 hit 67,000, and dropped to 55, 549 in 1983-84. It rose for several years after that, but has fallen every year since at least 1995-96.

    Charlotte Placide, associate superintendent of operations and budget management, emphasized that the numbers are only preliminary.

    ''These numbers are not final in the eyes of the state,'' she said. ''Schools get the opportunity to review them to make sure they haven't left out any students and that everything is correct. Then in January or February we will be notified of our funding.''

    But if the head count taken Friday holds steady, Placide said the system's state funding will drop from a projected $142.8 million to $140.1 million this year.

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    She said the School Board will probably use its reserve fund to make up the finding loss. She said the fund is now at about $18 million.

    ''At this point, I don't anticipate any spending reductions,'' she said. ''We will review our budget as always to see of reductions are necessary in any area. If there are none, at this time I would say (the loss) would come out of our fund.''

    An enrollment drop last year cost the system $1.6 million in projected revenues. That loss was also made up by the reserve fund.

    Superintendent Gary Mathews blamed the low numbers on a ''sense of instability'' caused by the ongoing desegregation case.

    The School Board has been operating under a new desegregation plan since 1996, when it entered into a consent decree with the NAACP, U.S. Justice Department and other plaintiffs in the case.

    ''During the first three years of the consent decree, we were dropping in numbers of students,'' but at a slower rate than previously, Mathews said. ''The losses before the decree were larger, and these numbers today are reminiscent of the days prior to the current consent decree.

    ''I'm afraid that a sense of instability out there connected to the suit is resulting in the numbers. . . . I would hope we resolve this case sooner rather than later.''
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    The enrollment Friday is an improvement from the 48,953 students enrolled on the first day of school on Aug. 19, which was also the lowest in at least 20 years.

    Enrollment typically climbs from the start of school through the first few weeks.

    Mr. CANADY. I want to thank all the members of this panel for your very informative and helpful testimony.

    Just a follow-up, Mr. McCollister, on some things in your testimony. You recounted a meeting that you had with a lawyer from the Department where you were told that you couldn't accept any white students coming from the school where they were in the minority and where the lawyer said, I don't care if they go to a private school; they just can't go to your charter school. You went on to say that this lawyer told you if you wouldn't agree on that point, then the discussion was over. Who was that? Do you recall specifics?

    Mr. MCCOLLISTER. Mr. Franz Marshall. It just so happens Mr. Marshall took on this case 20 years ago when we were at our peak of 67,000; and during his 20 years on the case, we have declined over 20 percent, to 54,550.

    Mr. CANADY. Following up on that, you mentioned that in the jurisdiction in question, only about 30 percent of the students are minority.

    Mr. MCCOLLISTER. Correct.
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    Mr. CANADY. But in the school system, 70 percent are minority.

    Mr. MCCOLLISTER. Right.

    Mr. CANADY. Where do the others go?

    Mr. MCCOLLISTER. Many of the students go to private schools, parochial and private schools in the area. Many more that have left the system have, in fact, moved out of the parish. And the parish to the east of us, Livingston Parish, is the second fastest growing parish in the State. The parish to the south of us, Ascension, is the third fastest growing parish in the State. So we see the results of the Justice Department's policy.

    Mr. CANADY. So people are actually moving out of the jurisdiction, moving their families into adjacent areas; and others are taking their children out of the school system and putting them in private schools. Do you know what the—20 years ago what the racial composition was in the school system, more the minority versus majority?

    Mr. MCCOLLISTER. I couldn't give you that statistic.

    I will say that all of our private schools for the most part have waiting lists.

    I would also inform you that last spring we had our Children's Scholarship Fund which was started by Ted Forceman and John Walton; and we, in fact, had 250 scholarships that would be available to low-income and minority students in East Baton Rouge, West Baton Rouge. We had 5,580 applications for those 250 scholarships. So while we have a lot of people who can't afford choice and would exercise that going to private schools and moving out of the parish, there are many trapped in failing schools who also would like that same opportunity, and they applied by the thousands.
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    Mr. CANADY. Mr. Kirk, did you have something you wanted to say?

    Mr. KIRK. Yes, Mr. Chairman. In regards to some of the statistics, and Mr. McCollister is aware of this, the East Baton Rouge Parish school system in 1975 was roughly 60 percent white and 40 percent black. Beginning in 1983, it reached a 50/50 enrollment. That enrollment between '83 and '95 has increased significantly in terms of the number of black children and has declined in the number of white children.

    Now what Mr. McCollister is referring to is in the initial analysis——

    Mr. CANADY. Could I—Mr. Kirk, I don't want to interrupt you, I will let you finish what you are saying, but why do you think those numbers have moved the way they have moved?

    Mr. KIRK. I am inclined to believe, Mr. Chair—well, our data suggests that the private market share has only increased by roughly 5 or 6 percentage points. We have a system that is complicated in its attendance by two major factors. One is the low birth rate of whites in addition to out migration. So the desegregation part of it is incidental only to the extent that there are parents in our school system that still maintain the posture that they want to remain in schools that are nearest where they live.

    We attempted to accomplish that with the consent decree, and I was one of the individuals that crafted the consent decree. What we came up with were two concepts. One was community sensitive attendance zones. And what we did was we changed how the attendance zones were drawn. In the past, they were drawn, taken in consideration racial representation. So if a school needed 20 percent more blacks, then the plans at that time would take a group out of anywhere or somewhere near.
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    In the new design, we designed the lines along subdivisions, where the line of demarkation either became a canal or major high highway. But, more often than not, we attempted to keep that and form the concept of community sensitive attendance zones. Placed on top of that, however, the desegregation elements that have worked all over the country using as a model Savannah and Norfolk, Virginia. And that is you place the special focus programs at the cusp of the minority community, not major thoroughfares or highways, because the data suggests that white Americans will not put their children in schools where those school systems or programs are not at least 55 percent white.

    Mr. CANADY. Do you believe that your program has been a success? Try to give a short answer.

    Mr. KIRK. Well, the consent decree was this—the dismantling of the consent decree began 1 year after its implementation primarily because I think folk realized that there is a cost associated with doing away with busing. If you didn't want to bus, there were two concepts, and that was the transfers for any child who attends a school where race is in the majority can attend any school in the parish where their race—if a child is attending a school where their race is the majority, they can transfer to any school where their race would be in the minority.

    Mr. CANADY. Let me just say, Mr. Kirk, that the thing that strikes me about this is that when you have got a situation with a racial composition such as you do in this district, to have an obsession with trying to meet some standard that cannot be met given the composition in the student population that is available, to become obsessed with that and to worry about numbers this way or that way just doesn't seem realistic. It seems like it is not taking into account what is actually happening. And that is one of the things about this that we can—you know, we can have a debate about the original decrees and all of that, but it seems to me that people ought to take into account the situation that actually exists.
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    And, Mr. Galloway, do you want to say something about that?

    Mr. GALLOWAY. Not to dispute what he is saying, but as a parent——

    Mr. CANADY. You can dispute it if you want to.

    Mr. GALLOWAY. I just want to say that in layman terms that those parents that had the means to move their children out of the parish or out of the district did. And that was a predominantly white group, and that is why Livingston, Ascension, West Baton Rouge, all these other parishes are now doing so well. And as the system began to change which is now 70/30 blacks to whites, those parents that do not have the means are caught in the inner city. And those numbers and those parents are not caring about those that are leaving, they are just wanting some support for the ones that are still there in the system, which are all predominantly black children. And that is why the system has really turned around now from 60/40 to now 70/30 black to white.

    As a parent that had the means, I chose to move my child from a public school to a charter school because I knew that that charter school would provide my child with the best education possible. I chose to move my child to McKinley School, which is a magnet school, and put him in the gifted and talented program because I had the means. My defense is for the people that do not have those means, and they are caught in the inner city.

    Mr. CANADY. The gentleman from Virginia is here. I would be happy to—we are operating a little informally here. I would be happy——
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    Mr. SCOTT. With unanimous consent, Mr. Chairman.

    Mr. CANADY. I would be happy to give my consent and yield to you some time now, if you would like. I will yield to you 5 minutes.

    Mr. SCOTT. I apologize, Mr. Chairman. I had another meeting, and I thought it was going to last about 5 or 10 minutes, and it went on and on.

    Mr. CANADY. I do not want to set a precedent——

    Mr. SCOTT. I understand. Having missed most of the testimony, Mr. Chairman, I did have just one question of Mr. Kopplin, I believe. Did I understand that you had some all-black charter schools?

    Mr. KOPPLIN. Yes, sir.

    Mr. SCOTT. Who runs the charter schools? Are these public charter schools?

    Mr. KOPPLIN. These are public charter schools given a charter by the State or the school district and run by a group of parents or community leaders independent of the school board. So it is a publicly funded public school that has to meet all of those public requirements. The operating board is in a sense a nonprofit group of parents.

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    Mr. SCOTT. Do you comply with IDEA and all of those kinds of things?

    Mr. KOPPLIN. It is my impression that those schools would be subject to that. That is not an area of expertise that I personally have.

    Mr. SCOTT. We end up in a situation where you are suggesting that you could educate some students better in a segregated setting?

    Mr. KOPPLIN. That is not my suggestion at all.

    Mr. SCOTT. You indicated that they do better.

    Mr. KOPPLIN. If I did, that was a misimpression. What I was saying is that our charter school law prevents what I think the Justice Department has been fearing, which is the creation of an all-white charter school. By requiring a high percentage of at-risk and low-income students to mirror that which is currently in existence in the parish in their school, we almost by virtue of the way that we have written our law make sure that that is going to be a very representative school—of the demographics in the school. In Louisiana, many cases, that means predominantly low income in the minority school. That was put into place specifically by requests by the legislative Black Caucus in our State who wanted to make sure we weren't creating charter schools for kids who weren't in the schools but were in fact creating charter schools for the children of parents like Mr. Galloway who wanted those experiments to be able to be successful for the kids who were being poorly served by the existing public schools.

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    Mr. SCOTT. What happens to the ones left behind?

    Mr. KOPPLIN. We hope that, a, the competition will inspire the existing public schools to improve. That has been the trend all across the country where you have a charter school creating innovations in terms of programming, extended school days, and lo and behold, soon the public schools say, they are doing some great things. We have seen that across the country and hope to see it in East Baton Rouge.

    Mr. SCOTT. What does the charter do that you can't do in public schools without this charter?

    Mr. KOPPLIN. Because they have been created independent of the school board, they are run by a local board and are freed up from all of the bureaucratic rules and regulations. They can start a charter school at 7 p.m. And run to 6 p.m. They can go to a 20-to-1 student-teacher ration. They can have French class after school. They can have special meetings with parents. They can rent their own classroom space from any provider they find.

    There is lots of things that they can do today that are innovative that meet the needs of the children and the parents to get them involved in the educational process. They are basically free to do that which is most important, which is educate their children. They can be public schools.

    In Los Angeles, there is a fine charter school, the Vaughn School, in an inner city neighborhood which was chartered by the personnel that ran the school. They turned around and ran the same school they were running as a charter, saved extraordinary sums of money and redirected from administrative overhead to classroom learning and made great strides. That is the kind of thing that we have seen across the country and hope to see more in Louisiana.
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    Mr. SCOTT. I don't mean to belabor the point, but you suggested that if you were relieved of regulations and presumably accountability that you can do better. Some presumably might do worse. Is that also true?

    Mr. KOPPLIN. Certainly there is the possibility that some would do worse, but I would suggest that the accountability measure——

    Mr. SCOTT. Would some of these charter schools go out of business?

    Mr. KOPPLIN. Absolutely. They can have their charters revoked, and they are subject to regular and more stringent review because they are so novel.

    Mr. SCOTT. Then what happens to the children after the charter school collapses?

    Mr. KOPPLIN. They would go back to whichever school, in another charter, the existing public school in the neighborhood. In Louisiana, you pre-test and post-test the students. We have clear records of their improvement that the public schools don't have to do. They give annual reports to the school board, those sorts of things. It is a clear accountability measure that is transparent to the public that is really exciting. It is what every parent probably wants out of their school, but none of them get it except in the charters.

    Mr. SCOTT. Thank you, Mr. Chairman.
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    Mr. CANADY. Thank you, Mr. Scott.

    Let me just follow up, and then we will move on to the next panel.

    I want to thank Ms. Elam again for being here. I am interested in the program that you were talking about. If I understand you correctly, in Hillsborough County, where you helped found a charter school, the existing court order requires that the public schools have a student ratio of 80 percent white to 20 percent black. That is what the court order requires. Your charter school, though, doesn't have that ratio. What is the ratio in your school——

    Ms. ELAM. Correct.

    Mr. CANADY [continuing]. Among the students who are full-time students in the school?

    Ms. ELAM. It is majority-minority.

    Mr. CANADY. So in that sense it doesn't comply with the court order. But you have a program that is kind of based on the idea that it is good for kids from different groups to spend time with kids from different backgrounds. So if I understand the program that you have talked about—could you elaborate a little bit on how that works? That is an interesting concept that might bear further examination and might serve as an example that other places could look at to address some of the concerns that are there without impeding the development of charter schools and preventing parents from being able to have their choice about where their kids are going to attend school.
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    Ms. ELAM. The multi-culture exchange program is designed for children to interact with each other with instruction because we did not want just a superficial, social kind of setting. So they work on projects together month by month. They go to different sites. They go in together and work on a project that is still tied into the benchmarks.

    Mr. CANADY. Do they actually come to your charter school?

    Ms. ELAM. Yes.

    Mr. CANADY. How many students would come? Would they come once a week or once a month? How would that work?

    Ms. ELAM. For the pilot program they were meeting once a month. Each school would visit the other site.

    I want to make sure that we understand that we really have to look at when we are working with integration and inter-cultural activities that it needs to be structured and well-thought-out for the children to have the best experiences possible and to build a foundation for the kinds of relationships that they will have in the future.

    The pilot started last year. Hillsborough is excited about it enough that we are expanding it. We gave it two classes. East side has K through 5, and there is one class on each level. Eastside's 4th and 5th grade works with two 4th and 5th grades from another majority school. This year they are expanding it. We are going schoolwide with the program with two other schools in Hillsborough with majority-minority students. The charter school is reflective of some of the neighborhood schools that also don't have the 80 to 20 percent ratio either.
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    Mr. CANADY. Thank you very much.

    Does anybody else have anything they want to say?

    Mr. MCCOLLISTER. I wanted to follow up to the question that Congressman Scott had in regards to what is different about a charter school. I think charter schools have the ultimate accountability in that they do operate under a charter that can expire. If they do not meet the measurements set out in the charter, they can be closed down because they are not successful.

    Also, the ultimate accountability being that of the parent. If a parent chooses a charter, those funds follow the child. If they decide after 1 year they are not satisfied and leave, the money leaves, too. If too many parents leave the school, the school can't continue to operate even—despite it may have a charter. So you have to deal with the customer and the customer being that child and that parent.

    As far as being able to do things that are different, there are no tenure laws in charter schools. We have even removed teachers after 1 year, and we don't have to go to the school board, and we set out what the rules are. We also operate 11 months out of a year and stretch that dollar by leaving it more in the classroom. We offer bonuses to our teachers. If they meet certain criteria and exceed them, they get rewarded. We also have a kindergarten teacher who takes our kindergarten kids on 10 field trips a year. Public schools allow two annually.

    So we are not bound by those regulations. We do what is best for the child, and we think that is very different, and it has been successful.
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    Mr. SCOTT. Mr. Chairman, you say you have all of this flexibility where you can hire and fire teachers at will. That can be good and bad.

    Mr. MCCOLLISTER. The parents have the ultimate say. If they don't like our decision, they can leave and we pay a penalty in terms of the dollars to operate our school. We don't operate outside our parents. In fact, they are very involved——

    Mr. SCOTT. I just say that because the idea of teacher tenure didn't just come out of the air.

    Mr. MCCOLLISTER. If you talk to universities, there was a reason. Why it is in K to 12, I have no idea.

    Mr. SCOTT. You can get teachers being hired and fired because of favoritism, for example——

    Mr. MCCOLLISTER. That is in every business.

    Mr. SCOTT. Including charter schools? Okay.

    Mr. CANADY. I think we are now going to need to go to the next panel. I do want to thank all of you for taking the time to be here. Your testimony has been very helpful to the subcommittee. Thank you very much.

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    Mr. CANADY. I would now like to welcome Anita Hodgkiss, Deputy Assistant Attorney General of the Civil Rights Division of the Department of Justice. We welcome you back to the subcommittee.

    Ms. Hodgkiss has served as the Deputy Assistant Attorney General in the Civil Rights Division since April 1998. She is responsible for the Division's voting, coordination review, and educational opportunities sections.

    We want to thank you for being with us here this morning. I would like to ask that you summarize your testimony. We will put on the light for 10 minutes. If you need more than 10 minutes, I don't think anyone would object.

    Your written statement will, of course, be made a part of the permanent hearing record. We appreciate your being with us this morning, and I look forward to your testimony.

    Ms. Hodgkiss.

STATEMENT OF ANITA HODGKISS, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Ms. HODGKISS. Thank you, Mr. Chairman.

    Mr. Chairman, members of the subcommittee, thank you very much for inviting me here today to discuss the Civil Rights Division's enforcement of Federal civil rights laws with respect to charter schools.
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    As you know, Acting Assistant Attorney General Bill Lee, who you originally invited to testify, is recused from the East Baton Rouge Parish and St. Helena Parish cases and has taken no part in the decision-making in those matters.

    The Department of Justice supports charter schools as a valuable way of offering students a wide range of innovative and experimental educational programs. At the same time, we remain committed to making the promise of Brown v. Board of Education a reality through the desegregation of formerly segregated public schools. We firmly believe that these objectives can be achieved simultaneously.

    It is worth remembering that Brown and its progeny had two related goals, ending public school segregation that created and maintained a racial caste system and enabling African Americans to gain access to quality educational opportunities.

    When many States refused to comply with the Supreme Court's mandate to desegregate, it became necessary to sue individual districts to obtain relief. Indeed, when Congress conferred the Department of Justice with such litigation authority in the Civil Rights Act of 1964, 98 percent of black children in the south were still attending segregated schools. As a result, the Department's initial enforcement efforts led to Federal court orders requiring desegregation in over 500 school districts. The Civil Rights Division continues to monitor and enforce these decrees because of our commitment to eliminating the vestiges of discrimination and segregation in public education.

    The ongoing litigation in East Baton Rouge is an example of why our work is not yet done. We have continued to monitor and enforce consent decrees entered in that case pursuant to the court's 1980 findings that the school district had not successfully dismantled the prior segregated system. More specifically, in 1980 the court found the school board had, since 1954, constructed 14 new schools with at least 95 percent black student bodies and 17 new schools with over 90 percent white enrollment. In the court's words, ''the undisputed facts establish that the school board has simply constructed white schools for white students and black schools for black students without consideration of location so as to further desegregation or to forestall resegregation of the school system.''
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    As a law enforcement agency, our responsibility is to ensure any new public school, whether it be a charter school, magnet school or traditional school, is developed consistent with Federal civil rights laws, including existing desegregation decrees. Indeed, most States' charter school laws, including Louisiana's, while endorsing the notion that charter schools should be free from burdensome regulations, still require that charter schools be subject to health, safety, and nondiscrimination laws.

    Louisiana's charter school law explicitly states that a charter school shall be subject to any court-ordered desegregation plan in effect for the city or parish school system. Accordingly, when we learn that a charter school has been proposed or opened in a covered district, we gather the information needed to determine whether the new school will impede ongoing segregation efforts.

    Nationally, we are aware of at least 50 charter schools in districts where we are a party to a desegregation decree. In the vast majority of these cases, we have raised no objection to these schools. An example that comes to mind is the Polk County school system in Florida. There are three charter schools there that we learned opened—the Apple School, the Child Development Center of Polk County, and the Foundation School, all in Lakeland. We obtained information about those schools and concluded that they were contributing to the integration of that school system.

    Last month, we joined the school system in a motion to the court that the system should be declared unitary. A fairness hearing is pending.

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    That is an example of how, in many instances, the establishment of charter schools further the desegregation of the school system by offering students attractive curriculum and programmatic alternatives without adversely affecting students who remain in the regular public schools. Moreover, we are committed to enabling communities to create alternative public schools that are models of educational excellence while also consistent with Federal civil rights laws.

    To this end, we are currently working with the Department of Education on a set of questions and answers for persons planning public charter schools. This guidance will cover all Federal civil rights obligations including those with respect to desegregation, sex discrimination, disability, and students with limited English proficiency. The central message is that an ounce of prevention is worth a pound of cure.

    Those planning to develop a charter school can contact the Department of Education or Department of Justice early on in the process so we can work together to develop an effective, lawful proposal that can be implemented without delay.

    I know that members of the subcommittee have specific questions about our position with respect to the charter schools in East Baton Rouge and St. Helena Parishes in Louisiana, and I look forward to answering them. For now, however, let me briefly make clear that we have not opposed the creation or expansion of charter schools in either of those districts. Instead, we have simply sought information about the proposals to ensure their compliance with existing desegregation orders.

    In East Baton Rouge, for example, we were able to support the three existing charter schools once we received confirmation that they would not prevent the school district from meeting its financial obligation under the consent decree and that the students were not leaving integrated schools in such a way as to make them newly segregated schools.
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    Please note that the East Baton Rouge consent decree is relatively unusual in that it requires the school district to make specific expenditures to improve facilities at existing racially identifiable schools. As a result, our concerns about any impact of the charter schools on the district's ability to meet these financial obligations are unlikely to arise in other cases.

    In St. Helena, most of the white students residing in the parish attend private schools and have so since desegregation was ordered many years ago. The proposed charter school is to be located in a rural section of a predominantly white residential area, and there are currently no plans to provide student transportation. We have requested information regarding the likely racial composition of the proposed school to ensure that it does not impede desegregation efforts.

    Charter schools are a valuable way to enhance parent and student choices among public schools. As a parent of a public school student, I know very well how important such parental involvement is to student learning and achievement. At the same time, I also know from personal experience how important it is that we continue to make progress toward the desegregation of formally segregated school systems. These two values are not in conflict. We can have charter schools and desegregated schools, and we owe it to our children to make both a reality.

    I would be happy to answer any questions that you might have.

    Mr. CANADY. Thank you, Ms. Hodgkiss.

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    [The prepared statement of Ms. Hodgkiss follows:]

PREPARED STATEMENT OF ANITA HODGKISS, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL RIGHTS DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Chairman and Members of the Committee:

    Thank you for inviting me to appear before you today to discuss how charter schools relate to the Civil Rights Division's responsibility to ensure that school districts comply with the federal civil rights laws and any court orders entered pursuant to those laws.

    Forty-five years ago, in Brown v. Board of Education, the Supreme Court of the United States reaffirmed the importance of education in the development of our young people and established that no person could be denied equal access to education because of the color of his or her skin. It was a decision that continues to make a real difference in the lives of many, many young people.

    Today, it is time to address and remove the last vestiges of racial discrimination in education. Since the decision in Brown, there has been a wealth of new evidence confirming the important role that schools play in preparing students to live in a pluralistic society and the significant role that the diversity of a school environment plays in the healthy development of children. It is our schools that must reaffirm—both by lesson and by example—the moral correctness of equality and the value of a quality learning experience. We cannot afford to allow intolerance or inequity to interfere with the ability of any citizen to acquire the most critical commodity—a quality education.
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    President Clinton and this Administration have championed the development of charter schools as part of a strategy to provide all children with the opportunity for a high-quality education. Charter schools begin with a vision shared by educators, parents, and community leaders who want to create a new and different learning environment for their children, and are a promising model for generating improvements in public education generally. Through the charter school program under Part C of Title X of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §8061–8067, the Department of Education has granted some $253 million to over 1,200 charter schools since 1995.(see footnote 1) These 1,200 schools are part of the 1,700 charter schools that were operating as of September 1998 to educate approximately 350,000 students.(see footnote 2)

    While the Department of Education has the most direct role in developing and implementing federal programs to promote charter schools, the Civil Rights Division shares the conviction that charter schools can provide an exciting and effective learning environment for students and teachers. The Division also believes that it is necessary and possible to develop charter schools that are consistent with this nation's civil rights laws, including any outstanding court orders that may govern a school district's operations. These orders, which are enforceable decrees of federal courts, were entered to ensure the elimination of any vestige of segregation or discrimination in a school district that had violated the constitutional guarantee of equal protection and the right to equal educational opportunity.

    Where the United States is a party to a case in which the court issued such an order, it is our responsibility to ensure that any modification to a student assignment plan, including the establishment of a new public school, is consistent with that order. Moreover, where the court has required submission of such changes for approval, it is common practice for the court to ask us for our views before issuing its ruling. We carry out this responsibility for any new public school and any modification of attendance zones in a covered district that is brought to our attention, whether the new school is a charter school, a magnet school, or a traditional school. Accordingly, when we are notified that a charter school has been proposed in a covered district, and when the applicable order covers the opening of a new school or the resulting changes in attendance plans, we gather the information needed to determine whether the new school will impede the achievement of the order. School districts share the obligation to evaluate whether a new school will impede the order, and, in addition, have a duty to ensure that their actions will not resegregate their school systems.
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    In the majority of such cases involving charter schools, the Division is able to obtain the necessary information from the district and the charter school organizers, conclude that the school is consistent with the applicable decree, and accordingly raises no objection to the school. As of 1999, we are aware of approximately 50 charter schools operating in approximately 30 districts where the Division is a party to a pending case.(see footnote 3) We have reason to believe the actual number could be higher. We have requested information about some of these charter schools. Based on our review, we have supported the motion of the East Baton Rouge Parish school district to expand two existing charter schools, and have not objected to the operation of any of the other schools. On just three occasions, we have notified a school district that we would not be able to support a proposed charter school.(see footnote 4) This is comparable to our experience with other new schools, schools that are not charter schools, in covered districts.

    In most cases, charter schools do not have serious implications for desegregation decrees. Generally, charter schools are relatively small. Their limited enrollment will not have significant impact on the attendance patterns and enrollment in the district's other schools, and will not affect compliance with the decree. In addition, charter schools generally serve students with demographic characteristics similar to those of the students in other public schools.(see footnote 5)

    The Department understands the unique nature of charter schools and the challenges faced by those working to start these schools from scratch. The obstacles confronting developers of a newly created school are akin to those facing a new small business. They need start-up funds, operating funds, facilities, and planning assistance. Unlike a new, district-operated public school, charter schools are often organized by individuals outside of the established school administration—parents, teachers, small business owners, concerned community members. They may be unfamiliar with the requirements, and perhaps even the existence, of laws and regulations governing their operation, including court orders and decrees that cover the district. Further, differences between states as to which agencies and institutions have authority to grant charters may further confuse the question of whether opening a particular school requires court approval.
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    To address these challenges, the Civil Rights Division has been working with the Department of Education to develop a process through which the state chartering authorities are made aware of potentially applicable court decrees and are in a position to assist affected charter schools. We are committed to continuing these efforts, and welcome any suggestions that will allow us to work with charter school organizers to expand the number of charter schools operating consistently with our federal civil rights laws.

I. THE EDUCATIONAL MISSION OF THE CIVIL RIGHTS DIVISION IN ENDING SEGREGATION

    The seminal case of Brown v. Board of Education and its progeny had two objectives: ending the legal structure of racial segregation, whose design and purpose were the creation and maintenance of a racial caste system that relegated African Americans to the lowest tier of society; and enabling African Americans to gain access to quality education, which is the key to overcoming the barriers imposed by racial segregation and attaining the full enjoyment of the benefits of citizenship.

    When many southern states refused to comply with the Supreme Court's mandate to desegregate ''with all deliberate speed,'' it became necessary to sue individual districts in the courts to obtain relief. When Congress enacted the Civil Rights Act of 1964, 98% of black children in the South were still attending segregated schools. The Department's initial enforcement efforts led to federal court orders requiring desegregation remedies in over 500 school districts. Private litigants obtained court-ordered remedies in many other districts where the United States was not a party.

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    The Civil Rights Division continues to work to eliminate the vestiges of discrimination and segregation that remain in our educational system, and to provide access to equal educational opportunities for all students. Today, we live in a society where the school-age population is increasingly diverse. Latino and Asian students, who received relatively little attention in the 1950's and 1960's, make up an increasingly significant proportion of our population and an even larger percentage of our school enrollment. By 1996, Hispanic students made up 14% of students in the South and the nation as a whole. Asian students are nearly 4% of the nation's enrollment, and will soon be close to 10%.

    The Civil Rights Division currently is a party to pending cases in 497 school districts in 21 states.(see footnote 6) Seventeen of the 21 states in which we have pending orders have authorized the creation of charter schools: Arkansas, Arizona, California, Connecticut, Florida, Georgia, Illinois, Kansas, Louisiana, Mississippi, Missouri, New York, North Carolina, South Carolina, Texas, Utah, and Virginia.

    Since virtually all of these pending orders define the school district's student assignment plan, changes to a district's attendance plan, including the construction of new public schools, that affect assignment patterns require court approval. As a party to these cases, when we are notified of a new school, new construction, or other change in an attendance plan that is covered by the order, it is our responsibility to determine whether the proposed modification is consistent with the requirements of the order and, if asked, to advise the court of our views. The court, of course, makes the final decision on compliance. This responsibility applies to all covered construction and modification of which we are notified, whether the modification involves a traditional public school under the direct supervisory authority of the district or whether it is a charter school. The local school district, which has an affirmative obligation not to take any action that would impede desegregation,(see footnote 7) shares this responsibility.
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    Of course, the fact that a school operates pursuant to a desegregation order does not mean that the school system can not make changes in its operations or educational programs. To deny school districts the ability to modify the organization of their schools in the face of changing demographics or aging facilities, or to adopt new educational programs, would be counterproductive to sound educational practices.

    Reviews of modifications to a court order and questions of compliance with desegregation orders are necessarily fact-specific. We encourage school districts and the developers of charter schools to consult with us as soon as possible so that they are aware of any applicable court orders. Over the last several years, we have agreed to new school construction in a host of districts, including Lufkin and Temple in Texas; Gibson, Tennessee; Vicksburg, Mississippi; Tuscaloosa, Autauga and Auburn, Alabama; and Baton Rouge, Louisiana. In Tuscaloosa, we objected to the district's original construction plan, and were able to reach an agreement that was approved by the court. In a few other instances, such as Madison County, Mississippi, we objected to new school construction.

II. OUR MISSION INCLUDES ENCOURAGING CHARTER SCHOOLS THAT ARE CONSISTENT WITH FEDERAL CIVIL RIGHTS LAWS

    As a general matter, the establishment of new charter schools can be readily accomplished in compliance with federal civil rights laws. For example, most charter schools, especially newly created schools, have relatively small enrollments and are thus unlikely to significantly affect the operation and desegregation of a school district. Sixty-five percent of all charter schools were small schools enrolling fewer than 200 students, and 74% of newly created charter schools were of this size.(see footnote 8)
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    In addition, the majority of charter schools have enrollments with demographic characteristics similar to those of the surrounding district.(see footnote 9) On the whole, charter schools have enrolled a slightly larger percentage of students of color than all public schools.(see footnote 10)

    For example, in Georgetown County, South Carolina, the Harbor School for Arts and Science charter school is currently operating with an enrollment of approximately 137 students. Half of the students are black, and half are white. Given the size and demographics of the student body, we concluded that the school would not have a detrimental impact on the district's compliance with the court's decree, and we have raised no objection to the school's operation. In contrast, on a previous occasion when this same district was asked to approve the opening of three charter schools in the very buildings that, as part of the decree, had been closed and merged in to new consolidated schools in order to further desegregation, we notified the district that we would oppose the charters because they would have clearly impeded desegregation under the decree. Ultimately, before the court had occasion to rule on the question, the voters of Georgetown County rejected the proposal.

    Similarly, in Monroe, Louisiana, the local school board asked the court to evaluate whether the operation of a charter school would adversely impact the desegregation of the city system before it approved the charter. The court granted a continuance for the hearing on the charter, and allowed the school to open in the interim. The Division facilitated a tentative agreement between the charter school and the school district, and the charter school remains open.

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III. LOUISIANA

    The Committee has expressed a particular interest in our involvement with charter schools located in East Baton Rouge and St. Helena Parishes. Because the decree in East Baton Rouge Parish is somewhat unique, it will be helpful to describe in some detail what the decree requires and how the proposed United Charter School may affect that district's ability to comply with the decree.

    East Baton Rouge Parish is a large school district which currently enrolls approximately 56,000 students, of whom approximately 67% are black. The system runs 97 schools of which at least 50 are considered ''one-race''(see footnote 11) schools.

    The case was initially filed in 1956 by private plaintiffs. The United States intervened in the suit in 1979. In 1980, the Court granted the United States' motion on liability, and thereafter entered remedial orders for the elementary, middle, and high schools. Three system-wide magnet schools were approved.

    The order did not achieve full desegregation. However, when a court finds unlawful segregation, one permissible remedy among others to correct for the discrimination is to order that money be spent on programs, facilities, and resources in segregated schools. In 1996, the parties entered into a consent decree that permitted the district to implement a new plan devised by the board to create at least 26 magnet program schools and to rezone all schools other than the magnet schools. The district also agreed to enhance many of the one-race schools in part to attract a more integrated student body. The 1996 Consent Decree also prohibits the board from opening new schools without prior court approval.
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    The district has not complied with the decree, in part, it claims, because it does not have sufficient funds. For instance, the district initially did not adequately wire two one-race schools to accommodate their computer magnet focus and did not provide appropriate facility and program enhancements at 30 one-race schools. Nor has the district eliminated a large number of temporary classrooms at one-race schools which were slated for removal in the consent decree. This is a particular concern in light of the court's determination in its 1980 opinion that temporary classrooms had been used to increase the size and enrollment of segregated schools.

A. Existing Charter Schools in East Baton Rouge Parish

    Louisiana's charter school statute specifies that a charter school shall ''be subject to any court-ordered desegregation plan in effect for the city or public school system.''(see footnote 12) The school board opened the three existing charter schools—Children's Charter, J.K. Haynes Elementary, and the Community School for Apprenticeship Learning—without either informing the plaintiff parties or obtaining the required court approval.

    The existing charter schools enroll a predominantly black student body. Based on statistics from the 1998–1999 school year, Children's Charter had 76 students in pre-Kindergarten through 2nd grade of whom 91% were black. J.K. Haynes Elementary, which was established in 1997, is ultimately projected to enroll 140 students in grades K–6. In 1998, Haynes enrolled 77 students in K–3, 97% of whom were black. The Community School for Apprenticeship Learning served 111 students in grades 6–8, 57% of whom were black.

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    In July of 1999, the board sought the court's approval for the proposed expansion of Children's Charter and Haynes Elementary to accommodate new fourth and fifth grade classes. The private plaintiffs opposed the board's motion. After receiving the necessary information, the Department supported the proposed two grade expansion of these two schools. Our information requests were tailored to address our concerns about the effect that proposed expansion of these schools would have on compliance with the decree.

    The board has previously invoked a lack of funds as an impediment to fully implementing the consent decree, particularly with respect to the extensive magnet programs that it agreed to undertake in 1996. Each student attending a charter school reduces the regular amount of operational funding available to the system by approximately $4,700. Accordingly, operating the three existing charter schools at their full capacity under current caps—370 students—could result in an annual loss to the system of approximately $1.7 million. Given the Board's assertions regarding its financial constraints, we believe it was fair to question the Board's decision to approve the expansion of three schools that could result in a diversion of almost $2 million from the system before offering our support for the expansion. We have also asked administrators at the two schools that are racially identifiable to refrain from making admissions that would negatively affect the level of integration of the school district that has been achieved so far.

    The Court ruled in August of 1999 that the existing schools, as presently constituted, were small enough not to present a financial impediment to the implementation of the consent decree and approved a one grade expansion at each school. The Court declined, however, to approve additional expansion, and directed that any further requests for expansion be submitted for approval.
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B. Proposed United Charter School

    In February of 1998, we were informed that the district had approved an application for the establishment of the United Charter School. The school would enroll 650 students in its first year, and ultimately serve 1,200 students in grades K–12. It is thus several times larger than the existing schools and than most charter schools. In its first year of operation, the school could receive $3.5 million of funds that would otherwise go to the East Baton Rouge district. At capacity, the United Charter School could result in a loss of $5.6 million for the school district, which, with the three existing schools, could amount to a total loss of approximately $7 million.

    We reminded the board that court approval would be required. We also met with administrators of the proposed charter school and requested information, not all of which has been provided. In February 1999, the board filed a motion with the court requesting approval of United Charter. However, at the same time, the board asked that the court not take any action on its motion. The charter school group also sought to intervene, and, in accordance with longstanding jurisprudence in the Fifth Circuit, we opposed that request on the grounds that its interests were adequately represented by the school board. On March 24, the Court denied the charter school's request. The court has not issued a schedule for consideration of the board's motion.

C. St. Helena Parish

    St. Helena is a small district with approximately 1,200 students, of whom 91% are black. When the desegregation plan for the parish was implemented, a majority of the white students in the parish left the public schools to attend a private school in a nearby parish. Today, most of the white students residing in the parish continue to attend private schools.
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    We have been informed by a school official that the private school is experiencing financial difficulties and has notified parents of a tuition increase. The official believes that the white parents are seeking an alternative to the private school, but do not want to enroll their children in the predominantly African-American St. Helena Parish system. The proposed charter school is located in the neighborhood where the white students who left the district to attend private schools live. It is a rural area, and there is no plan to provide transportation for students attending the charter school. We are thus concerned that the charter school may have an overwhelmingly white enrollment and recreate a situation with identifiable white and African-American schools in the parish. When the State Board over-ruled the local board and authorized the establishment of the school, we asked for additional information and suggested that the Board reevaluate its position in light of the possible effects that the charter school would have on desegregation in the parish. The State Board did not act on our request. To our knowledge, the school has not opened and neither the State nor the district have sought court approval.

CONCLUSION

    The Department of Justice, along with the Department of Education, strongly supports the creation of charter schools to meet increasing enrollment demands and to foster public school choice. We also believe strongly in the guarantee of school desegregation embodied in the Constitution and the civil rights laws enacted by Congress. There is no inherent tension between the creation of charter schools and desegregation obligations. Most charter schools opening in areas under court-ordered desegregation plans should be able to comply with those orders.
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    We stand ready to aid states, chartering authorities, local educational agencies, and community members who are considering charter schools, as well as other new schools. Part of that assistance includes help with identifying applicable civil rights obligations and ensuring compliance. Working in close conjunction with the Department of Education, we hope to publish a technical assistance document for state school officials, local education authorities and charter school operators that will outline basic steps a developing charter school can take to make sure that it is in compliance with any desegregation order or plan in effect for that district. Our initial draft of this document contains questions and answers for persons planning public charter schools. It covers all federal civil rights obligations, including desegregation, sex discrimination, disability and students with limited English proficiency. Devising such guidance is complicated by the fact that states have differing legal structures for charter schools. In addition, desegregation orders have a variety of requirements, depending on the district. There are no simple rules for how they can meet state and federal civil rights obligations.

    We intend for this guidance to facilitate charter school development, not frustrate it. We are seeking input from the relevant stakeholders, and have consulted with state education officials in Louisiana. Our central message is that an ounce of prevention is worth a pound of cure. If a charter school is being considered in a district with a court-ordered desegregation plan, notify the Department of Education or the Department of Justice of the school's plans early on so that we can work together. With early notice and cooperation, we believe new charter schools can avoid costly delays, challenges, or litigation.

    Mr. CANADY. Mr. Scott, without objection, I will yield to you for 5 minutes.
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    Mr. SCOTT. I won't object. Thank you very much.

    Ms. Hodgkiss, we heard the gentleman from I think the Governor's Office from Louisiana express little concern about an all-black school but concern for all-white schools. Is there a difference from a legal point of view of creating all-black schools rather than all-white schools?

    Ms. HODGKISS. In our analysis of the three existing charter schools in East Baton Rouge, the question that we asked was how—we had two questions, the financial impact on the district—but, apart from that, the second question, how does it affect the district's implementation of the court order? How does it affect the ability to further the desegregation of the school system? So the simple answer is no. We are not—we don't make a distinction. We are looking at the cumulative effect of those schools on the overall school system. And we did not object to the three charter schools in East Baton Rouge.

    Mr. SCOTT. Did you not object to an all-black school?

    Ms. HODGKISS. No, we did not.

    Mr. SCOTT. Have you evaluated—do you have a compliance policy regarding charter schools and desegregation generally?

    Ms. HODGKISS. No. We have a general policy of monitoring consent decrees that are in effect and looking at any new schools that open. Charter schools are one type of a new school that may open in a district, but we don't have a specific policy that relates just to charter schools.
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    Mr. SCOTT. How can charter schools comply with the consent decrees and the Justice Department policies? What advice would you give them?

    Ms. HODGKISS. What we have suggested—what we hope to suggest in the question and answer document is the best thing for them to do is contact us. We can let them know if there is a decree in their district, what the terms of that decree might require.

    The decrees are very different. In East Baton Rouge, the '96 consent decree specifically requires all new schools to be approved by the courts. Other decrees might be different. The easy answer is for them to contact us, get us information about what they are planning, and we can work with them.

    Mr. SCOTT. The experience of charter schools in other areas, have they tended to be more or less integrated than the public schools?

    Ms. HODGKISS. If you are asking nationwide, the Department of Education has commissioned a study of the charter schools nationwide. In their third-year report, they do address that issue. I believe that what they tell us is that more minority students attend charter schools nationwide than the general public school population, but I don't know that they have data on whether the charter schools themselves are more integrated. That is the most recent——

    Mr. SCOTT. The numbers that I have seen are consistent with what you have said. More minority students may attend, but the schools themselves are either all black or all white. And in the aggregate, there may be access—more access to the schools from minority students. But when you get to the school, they appear to be much more segregated than the public schools generally. Do you have any information that would dispute that?
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    Ms. HODGKISS. I don't know off the top of my head, but I would be happy to look into it——

    Mr. SCOTT. The answer is you don't know?

    Ms. HODGKISS. Correct.

    Mr. SCOTT. Thank you, Mr. Chairman.

    Mr. CANADY. Thank you, Mr. Scott.

    When I listen to the folks from Louisiana and I listen to you, one could conclude that there is just a terrible misunderstanding, that you all at the Department are not wanting to establish any real barriers, but the folks from Louisiana seem to think there are real barriers and problems. So I am inclined to think that the folks wouldn't come up here from Louisiana to testify unless they believed and were in fact encountering resistance in their efforts to try to meet the needs, as they understand them, of their students.

    Let me say this to you, Ms. Hodgkiss. I don't think that you have set out to do something that is bad in these cases. There are others that might disagree with me on that who believe you have a bad motive. I don't attribute that to you.

    But, at the very least, I think if you look at all of what we have heard here today, you would have to conclude that this is not working smoothly. That is the best interpretation that I can put on it. Trying to give the Department the benefit of the doubt to the maximum extent, there is a process here that is not working smoothly. And it is a process that seems to me to be entirely unpredictable.
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    We know there are decrees that require a certain percentage in the schools in the district, but it is not happening in noncharter schools. But yet the focus is on charter schools, in trying to force them into a mold that nobody can fit. I just don't think that that makes sense.

    Now, in your testimony, I believe, and in some of the other documents you provided to us, you indicated there is work that is being done to try to develop a statement of policy or guidelines for charter schools. When is that going to be done?

    Ms. HODGKISS. We are working with the Department of Education, and I can't——

    Mr. CANADY. Is there a goal? Goals are laudable in the eyes of most at the Department, I think. Is there a goal for the time that that should be completed?

    Ms. HODGKISS. I can tell you that we want to get this completed as soon as we can. We also shared a draft of our Q&A document with the State of Louisiana officials and have asked to get their input. We haven't heard back from them. We want to have time to consult with all of the relevant stakeholders so that we get input and that we have guidance that is helpful to people. But we are certainly working as fast as we can.

    Mr. CANADY. So you don't know when it will be finished is the bottom line on that.

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    Now, in a document that you provided to us, it is headed, ''the Civil Rights Division and Charter Schools,'' which I understand is a general statement about the approach of the Department on charter schools, there is this sentence. It says, ''Some critics have claimed inaccurately that the Division has blocked local efforts to develop charter schools.'' You go on from there.

    Similar statements have been made elsewhere. So it seems to me from those statements that the Department takes the position that you do not engage in activities that block charter schools. But, on the other hand, we have heard the testimony here and documents that you have provided to us—there is one document, ''Charter Schools in States Review.'' There is a statement, ''When the charter school proposes to operate in a court-ordered district in which we are a party to the litigation, we must raise any objection we might have with the court. Heretofore, we have raised objection with the court in only two instances, in East Baton Rouge and in Monroe City.''

    So there is a little inconsistency in saying that you don't block local efforts and then in your own documents—and I think that you have to admit that you are objecting at least in certain cases.

    Ms. HODGKISS. Let me explain the basis for why we are not blocking or impeding the development of charter schools. The first important point to note is that it is the court—in a district particularly like East Baton Rouge where the court has said any new school the district seeks to open needs to be approved by the court, it is the court that makes the decision. Our role is not to make a yes or no decision about whether the charter school should open. That is for the court to decide.
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    Mr. CANADY. Don't you go before courts all the time and ask them to take a new position based on changed circumstances? There is nothing to prevent you in a case like that, if you thought that that particular requirement of the decree or order was inappropriate, you could go before the court and say we don't think this is applicable or should be applied to charter schools. Nothing prevents you from doing that. As a matter of policy, you decide that you are going to not do that. Why is that?

    Ms. HODGKISS. Well, I do want to point out that what we did file with the court in the East Baton Rouge case explicitly said that we have no objection to the three schools that were in operation, to them expanding. In fact, what we suggested to the court and the parties was that, rather than just doing this year by year, the court consider the charter school overall. It was the court that said, no, I want to see the 4th grade expansion this year and 5th grade next year.

    So we have suggested to the court that a broader overall look at the charter school plans in East Baton Rouge would be better for all involved, and the court didn't agree with that.

    Mr. CANADY. I am missing something here. I am looking at this document that you provided to us. It says, ''Heretofore, we have raised objection with the court in only two instances, in East Baton Rouge and in Monroe City.'' Is that accurate?

    Ms. HODGKISS. That document is inaccurate.

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    Mr. CANADY. It would be interesting to know who prepared this, because this is a document that someone at the Department prepared and which was provided to us in response to our request for information. This is your document.

    Are there other—well, I guess I have to ask a more general question. What else in the information that you have provided to us in these documents is inaccurate? Does anybody look at these before you send them over here to determine if they contain inaccuracies or not?

    Ms. HODGKISS. As I recall, the request that was made of us was to provide all documents, notes, anything in our possession that related to this issue. I can direct your attention to the pleading that we filed in court, and that is dated July 19, 1999. That is what contains the position that we took.

    Mr. CANADY. Okay. Let me ask you about the proposed United Charter School. What position has the Department taken with respect to that school?

    Ms. HODGKISS. We have asked for information about the impact of that school on the district's ability to carry out its financial obligations under the consent decree. The decree requires an expenditure of at least $3 million in the first 3 years to improve facilities as well as instructional programs in the racially identifiable schools in the district.

    One very important question we have is, what is the impact on the district's ability to carry out its financial obligation in the decree? In the past, the district has said they have not been able to comply because of financial difficulties.
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    The second question that we have is, what impact will it have on the district's ability to further the desegregation of the system there? We have not filed anything with the court yet because the—it has not yet been presented for approval.

    Mr. CANADY. Let me ask you to respond to what Mr. McCollister said in his testimony. You heard that, I assume?

    Ms. HODGKISS. I would imagine you are talking about the statements of——

    Mr. CANADY. The statement of—well, on page 6 of his testimony, he says, ''For example, when I told the Department's attorney that some minority parents believed that United Charter School was their 'last hope'.'' ''For their children, he replied, 'What the parents want isn't important to me. I am interested in the law'.'' That is on page 6.

    Then over on page—well, on page 8, Mr. McCollister said, ''I pointed out that if the students were denied the choice, their parents might become angry and pull them out of the public schools altogether and move to private schools. The Department's lawyer responded, 'I don't care if they go to a private school. They just can't go to your charter school.' He went on to say if we wouldn't agree to this point, our discussion and meeting was over.''

    Ms. HODGKISS. I was not present, so I can't comment on whether those words were actually spoken or not.
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    Mr. CANADY. Let me ask you this, if those words were spoken, do you think those were appropriate statements for the lawyer acting on behalf of the Department to be making in that context?

    Ms. HODGKISS. What I can tell you is that the way that seems to be understood is not our policy. It is not our policy generally, and it was not our position in the East Baton Rouge case to dictate any particular students can or cannot go to any particular charter school. Certainly what parents want is important to us. We do support public schools, and we want students to be in public schools. So if the statements were understood to be implying otherwise, they are not consistent with what our policy is.

    Mr. CANADY. Well, let me just say that I find that the statements that the witnesses have made are troubling. I would encourage the Department to step back from this and look at what you can do to help ensure that there are not roadblocks placed in the way of charter schools.

    You have to understand that when these sort of statements are made, and I have no reason to question the accuracy of this. If you want to talk to the people involved and can provide information that says this isn't so, then we will put that in the record. We would be happy to have it. But I think we, the committee, have to take this sort of thing seriously. When the lawyers are making those kinds of statements, that is not the way the system should operate, and it is not the way that the Department should be conducting itself. It is of concern to us. It is not just a matter of concern to us in this hearing but a matter of ongoing concern to us. So what we have done today is a step in an ongoing process of oversight for the sake of this matter.
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    I want to try to clarify one thing. With respect to the United Charter School, why did you object to the school's request to intervene in the desegregation case?

    Ms. HODGKISS. We objected to the motion to intervene on two grounds, that they, under the principles of desegregation law, they did not have a direct interest in the subject matter of the litigation.

    Secondly——

    Mr. CANADY. Why didn't they have a direct interest? It is something that is going to keep them from establishing a school for their children. I don't understand why they don't have a direct interest in that.

    Ms. HODGKISS. Under the longstanding case law, parents who seek to intervene in ongoing desegregation litigation have a burden of demonstrating that it is the desegregation of the schools that is their primary interest.

    But our second point——

    Mr. CANADY. I'm sorry, I don't follow that.

    Ms. HODGKISS. Our second point was that——

    Mr. CANADY. I don't follow the first point, so you have to explain it to me better, or do your best to explain it to me. What would they have to show in order, under existing law, to be allowed to intervene?
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    Ms. HODGKISS. There are a number of standards that they have to meet, but the one that I was just talking about is they have an interest in the subject matter of the litigation which is the desegregation of the public school system.

    Mr. CANADY. So the interest has to—well, I understand what you are saying, but I am having trouble translating that into the real world of parents who are concerned about the education of their children.

    Make your second point, and then I will ask you a general question about it.

    Ms. HODGKISS. The second point was their interests were adequately represented by the school board. In fact, in their papers they conceded that they had the same interest as the school board. When the court ruled on the motion to intervene and denied their motion at that time, that was a factor, in the court's opinion, that the parents——

    Mr. CANADY. You have made those legal points. But why is it that the Department felt that you had to spend the time and resources of the taxpayers to go into court to object to allowing them to go before the court and make their point?

    Ms. HODGKISS. Because it was our view that the school board was doing that on their behalf.

    Mr. CANADY. But it wasn't their view that that was being done. Otherwise, they would not have sought to intervene. So basically you are saying that you decided who could represent their interests better than they could decide for themselves. You know better what is in their interests than they do, is that what you are saying?
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    Ms. HODGKISS. I don't believe that is what I am saying.

    Mr. CANADY. Let's take another shot at it. What did you say?

    Ms. HODGKISS. We took the position—the court ultimately decided, but it was their position——

    Mr. CANADY. I know what happened here. I know what the court did, but the question I asked you is why did you feel compelled to spend the taxpayers' resources to go into court to file an objection to their attempt to intervene? That seems to me to be kind of an example of the Division really trying to interfere with the rights of these parents.

    You may have some legal justification for doing that. We will put that aside. But as a policy matter, it just seems to me to be sending the wrong signal to people involved in charter schools. I just don't understand it. I would think that you would have better things for your lawyers at the Department of Justice in the Civil Rights Division to be doing than trying to keep these parents from having an opportunity to present their views to the court in a case like this. It mystifies me that you would put a priority in going in and trying to shut them down in that way.

    Ms. HODGKISS. As a policy matter, and I think ultimately as an outcome with the court approving the expansion of those charter schools, generally it would be to their advantage to have the chartering authority represent them and seek court approval for their charter school. That in some way lessens the burden on them.
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    Mr. CANADY. So you decided that you would object to their request to participate and to intervene so that you could lessen the burden on them? You were doing a favor by objecting?

    Ms. HODGKISS. I am trying to explain the policy behind the legal argument that we made.

    Mr. CANADY. Well, I hear what you are saying, but I don't find it very convincing. I guess there is no mystery about that.

    As I said, this is a matter of ongoing interest for us. I am hopeful that the Department will step back and look at things that the Department can do to help facilitate the policy of the Clinton administration which is to support the charter schools.

    I am not talking about charter schools that would be set up for the purpose of defeating integration. I think those were wrong. Furthermore, I don't think they can do that under the State laws anyway. The charter schools aren't being used for that purpose.

    But I think that—I hope that you will pay some heed to the concerns that have been raised by the Governor's Office from Louisiana and the others who have been here and evaluate the specific steps you take in light of those concerns.

    Again, I understand that you have a job to do. And I understand that there are sometimes difficult choices to make and judgment calls where people of good faith can disagree. As I said earlier, I am not accusing you of acting in bad faith, but I will honestly say I think there has been bad judgment in the ways that things have been handled that have been highlighted here. I hope that you will take a second look at the approach on these things.
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    I appreciate you being here. We appreciate your commitment to enforcing the rule of law. We all support that, and we look forward to further oversight with respect to these matters. Thank you very much for being here today.

    There are votes going on to which the subcommittee must go, so the subcommittee will now stand adjourned.

    [Whereupon, at 12:09 p.m., the subcommittee was adjourned.]

A P P E N D I X

Material Submitted for the Hearing Record


U.S. Department of Justice,
Office of Legislative Affairs,
Washington, DC, October 7, 1999.
Hon. CHARLES T. CANADA, Chairman,
Subcommittee on the Constitution,
Committee on the Judiciary,
House of Representatives, Washington, DC.

    DEAR MR. CHAIRMAN: This responds to your letter, dated September 22, 1999, which requested documents relating to the Civil Rights Division's action regarding charter schools in preparation for the Subcommittee's oversight hearing on October 14, 1999.
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    Enclosed are documents responsive to your request. In accordance with our longstanding policies, we have not produced deliberative materials or attorney work product pertaining to policy discussions about charter schools or to the pending litigation, Davis & United States v. East Baton Rouge Parish School Board (M.D. La.). We do recognize the Subcommittee's interest in both the policy positions and the pending litigation, and we are committed to seeking to accommodate your needs for information about these matters. Included among the documents we are producing today are materials that explain our policy and litigation positions. As you will note from these materials, the Department has not objected to the charter schools in East Baton Rouge and St. Helena Parishes, but rather, requested information about the schools in order to ensure that they comply with existing desegregation orders. We would be happy to brief the Subcommittee staff on these and other positions in advance of the hearing. We suggest a meeting tomorrow, so that we can be as helpful as possible as you prepare for the hearing.

    Please do not hesitate to contact me if you would like additional assistance regarding this or any other matter.

Sincerely,

Jon P. Jennings, Acting Assistant Attorney General.

cc:

The Honorable Mel Watt
Ranking Minority Member
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THE CIVIL RIGHTS DIVISION AND CHARTER SCHOOLS

    The Clinton Administration is fully and equally committed to the twin goals of supporting the charter school movement and vigorously enforcing existing school desegregation orders. The Civil Rights Division believes that these objectives can be achieved simultaneously. Indeed, since President Clinton took office in 1993, the number of charter schools in this country has risen from just one to more than 1,100.

    Under Acting Assistant Attorney General Bill Lann Lee, the Civil Rights Division is committed to working together with states and local communities considering charter schools to develop plans that are in compliance with existing court orders. The Division has simply worked to ensure that any proposed new school—including a charter school—in a district subject to a desegregation order is evaluated to ensure that it does not unlawfully impede desegregation efforts. Indeed, the Division is currently working with the Department of Education to develop written guidance to aid communities in this effort.

    Some critics have claimed, inaccurately, that the Division has blocked local efforts to develop charter schools. To the contrary, the Division has consistently made clear that fundamental civil rights goals of breaking down segregation and ensuring equal educational opportunities for all Americans can be achieved simultaneously with the development of charter schools. To this end, the Division has sought information about proposed charter schools to ensure their compliance with existing court desegregation orders.
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    For example, in East Baton Rouge Parish, Louisiana (note that Mr. Lee is recused from participation in this case), the Division has raised two questions about the impact of a proposed charter school on the school district's ability to comply with 1996 and 1999 consent decrees in a longstanding desegregation case. First, the Department has expressed concern that the charter school may further drain the district of needed funds, since the district has already indicated that it cannot fulfill some of its existing responsibilities under the consent decrees (e.g., engaging in building repairs at racially identifiable schools and wiring one-race schools to accommodate a computer magnet focus) due to financial constraints. The Department has thus asked the school board to indicate that the allocation of funding for operation of the charter school would not impede these efforts. Second, the Department has requested information about the charter school's projected enrollment and its effect on the racial make-up of existing schools, and has asked charter school representatives to develop a proposal that would not negatively affect the fragile level of desegregation attained in the system to date.

    Currently, three other charter schools operate in the district. The Division has not objected to these schools. Moreover, we are committed to working together with the district and the charter school to accommodate their interest in adding a fourth grade to existing charters.

    Similarly, in St. Helena Parish, Louisiana (note that Mr. Lee is also recused from this case), the Department has requested information regarding the likely racial composition of a proposed charter school and its impact on desegregation. When the district was ordered to desegregate many years ago, most of the white students left the district's public schools; indeed, today, most of the white students who reside in the Parish attend private schools. The proposed school is to be located in a rural section of a predominantly white residential area, and there are currently no plans to provide student transportation. We have thus requested information to ensure that the proposed charter school does not impede desegregation efforts.
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    In Monroe, Louisiana, a local school board rejected a charter school application, only to be overruled by the State Board. The local board asked for our assistance and sought to enjoin the operation of the charter school. We requested an evaluation of whether the charter would adversely impact desegregation efforts. A hearing followed in October 1998, during which it appeared that the local school board and the charter school proponents could agree on the parameters of the charter's operation. The Division supported postponing the hearing until the agreement could be worked out; the court agreed and has permitted the charter to open.

    Finally, in South Carolina, we informed a school district that we would object to the establishment of certain charter schools because, as proposed, they would impede desegregation. We had recently entered into a consent decree with the school district that called for the closing of two sets of racially identifiable schools (which were badly in need of repair) and replacing them with a new set of desegregated schools, which were located between the old schools and would draw from a wider, more diverse neighborhood base. The proposed charter schools would have utilized schools that had been closed under the decree, and thus the re-opening of those schools as charter schools, in our view, would have undermined the decree and its ability to achieve desegregation. In any event, however, voters rejected the charter schools by a 2-to-1 margin in a local election. Another charter school currently operates in the district, to which the Division does not object.

    In short, the Division is committed to enabling states and local communities to develop charter schools that comply with existing desegregation orders. When school districts subject to a desegregation order contemplate the creation of charter schools, we encourage them to notify us as soon as possible so that we can work together to ensure the development of an effective, lawful proposal that can be implemented with minimal disruption and delay. Moreover, we are currently working with the Department of Education to develop guidance—to be distributed to communities across the country describing how charter schools can be designed consistent with existing court orders.
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CHARTER SCHOOLS IN STATES I REVIEW

    This in response to the e-mail from Karen Stephens requesting a listing of court-ordered districts in which charter schools operate.

    I have reviewed the web-site for the Center for Education Reform (CER), among others and found that this site provides the most recent information. There does not appear to be a site that can be relied upon to have all the current data. The site that Karen provided indicates that there are approximately 500 charter schools operating, while the USDOE has indicated that the number is probably approximately 1300, while the CER site indicates that as of February, 1999, there are approximately 1207 charter schools enrolling in excess of 300,000 students operating in 27 states with another 5 states having enacted legislation authorizing establishment of charter schools.

    The CER site indicates that Florida has 76, Georgia has 28, Louisiana has 11, and Virginia has none. However, if you check the individual state web-sites some of the numbers vary, e.g. the Florida site indicates 84, Georgia 29, and Virginia 2. Again based on information on the state sites, there are charter schools operating in the following court-ordered districts in the respective states :

Florida
Gadsen
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Jackson
Polk
Seminole
St. Lucie
Approved but not yet operating
Lee
Marion
Walkula

Georgia
Talbot

Louisiana
East Baton Rouge
Evangeline
Lafayette
Monroe City
Pointe Coupee
St. Landry

    The following is a sketch of the establishment of the schools located in four of the Louisiana districts in an effort to be responsive to the request that we attempt to locate districts where we have either approved or not objected to the creation of charter schools. As I indicated earlier we do not have the authority to approve or reject the creation of a charter school. Where the charter school proposes to operate in a court-ordered district in which we are a party to the litigation, we must raise any objection, we might have, with the court. Heretofore, we have raised objection with the court in only two instances, in East Baton Rouge and in Monroe City. In each instance, we have said that since the charter school will operate, pursuant to state law, as a public school it is subject to the same desegregation responsibilities as is the public school system; specifically, to refrain from taking any action which will negatively effect or impede the desegregation process. In Louisiana, as in most states there is no state requirement that we be notified of the establishment of a charter school, thus the creation of a charter school generally comes to our attention only when the local school board raises the issue or we receive information by citizen complaint or happenstance. While most court ordered plans require that school boards receive court approval of new schools, school boards routinely do not seek such approval and in the context of charter schools school boards do not view them as part of their system since charter schools are exempt from most state laws and bureaucratic control.
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    In the Monroe City context, the local school board brought the matter to our attention. They indicated that the developers had requested authorization to operate within the Monroe City School District; that they perceived that the operation of the charter school would negatively affect their ability to fulfill their responsibilities under their court ordered plan by, inter alia, decreasing the state monies they receive; and that they had rejected the request and the state board had overruled them. We informed the court and the parties, during a status conference and a hearing, that our only concern was whether the charter school would negatively affect the desegregation process. Prior to and during the hearing, we encouraged the school board and the charter school developers to construct a mechanism that would minimize any negative effect on the desegregation process. During the hearing, the school board and the charter school developers reached a tentative agreement and requested a continuance until such time as the agreement might be finalized. However, the final agreement has not materialized, primarily as I have been informed, because of a clash of personalities. The matter remains on the court's docket subject to recall by any party. We have not sought to raise the matter because the charter school developers have complied with the provisions of the tentative agreement which minimize any negative effect to desegregation process, the charter school developers are the members of a historically Black church located deep within the Black community and are unlikely to draw any white students from the Monroe City School System which enrolls a student body which is more than 90% Black, and the charter school appears to be poorly financed and is expected to close either at the end of this year or the next year.

    In the Baton Rouge scenario, in January, 1998, the counsel for the school board informed me they expected a charter school application would be filed at some point during 1998. I informed the counsel that the court order in the case required the school board to seek court approval of the creation of any new schools; that the school board was specifically enjoined from creating new schools without court approval. I heard nothing more on the subject until approximately June or July, 1998, when I read a newspaper article indicating that the school board had approved the charter school application for Children's Charter School. I informed the school board that they were required to bring the matter before the court; they responded that since the charter school would not operate as a part of their system, they had no such obligation. During the course of a subsequent status conference, I raised the subject and the judge agreed that the matter should be brought to the court's attention. Several months later, I learned, also from a newspaper article, that the school board had approved three other charter schools that had been in operation for over a year. Each charter school initially enrolled only fifty students; now, they enroll approximately 130 students. None of the charter schools have been approved by the court and the school board filed appropriate pleadings with respect to Children's Charter School in February, 1999, while at the same time asking the court not to set it for hearing and to suspend the requirement for responsive pleadings. The school board has yet to raise the propriety of the operation o f the other three charter schools; however, we have developed a tentative agreement with the board concerning these three and have indicated subject to the finalization of the agreement we will not object the operation of those three. It should be noted that one of the three is also operated by Children's Charter the same group that has been so vociferous about our decision to object to their second school. We have not raised the matter formally with the court because the school board has agreed to limit the size of the student body to the current enrollment. We have not raised the matter formally with the court because the school board has agreed to limit the size of the student body to the current enrollment size and other limitations with respect to possible negative effects on the desegregation process.
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    You should note, when the school board filed its motion for court approval of the second Children's Charter School (the one currently at issue), the board asked the court not to set the motion for a hearing and to suspend, temporarily, the requirement responsive pleadings. The court granted the school board's request.

    In the St. Helena Parish context, we have not formally objected to the creation of the charter school. We have simply asked questions about the operation of the charter school and the possible negative effects on the desegregation process. This matter was brought to our attention by the local school board and the for-profit organization which will be responsible for the day-to-day operation of the school. The school board rejected the charter school developers' application to operate in St. Helena Parish and they were notified that the state board would overrule them they sought our assistance. St. Helena Parish is one of the poorest parishes in the state. The student enrollment in the parish-wide school system is very small, approximately 1200 students, and is approximately 91% Black. The school board is predominantly Black and the Superintendent is Black. Several years ago when the desegregation plan was implemented most of the white students left the system and enrolled in the neighboring parish's system or enrolled in the private school located in that parish; now, most of the white students living in St. Helena Parish attend the private school. The parish Superintendent indicated that the private school is experiencing financial problems and has notified the parents of its students that it will have to increase tuition. The parents of the students living in St. Helena Parish have been looking for an alternative and have opted for the creation of a charter school rather than enroll their children in the parish system. The proposed location of the charter school is in a rural section of a predominantly White residential area; transportation will not be provided. While the developers loudly proclaim that the charter school will probably serve a 90% at-risk student body, they fail to indicate that there are probably as many White at-risk students as there are Black at-risk students residing in the parish. The school board is concerned that the charter school will serve as a haven for White students. As I indicated above, we have not objected to the creation of this school; we have simply requested information and all of the information has not been provided.
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    In the Monroe City context, the local school board brought the matter to our attention. They indicated that the developers had requested authorization to operate within the Monroe City School District; that they perceived that the operation of the charter school would negatively affect their ability to fulfill their responsibilities under their court ordered plan by, inter alia, decreasing the state monies they receive while simultaneously increasing the per pupil costs; and that they had rejected the request and the state board had overruled them. We informed the court and the parties, during a status conference and a hearing, that our only concern was whether the charter school would negatively affect the desegregation process. Prior to and during the hearing, we encouraged the school board and the charter school developers to construct a mechanism that would minimize any negative effect on the desegregation process. During the hearing, the school board and the charter school developers reached a tentative agreement and requested a continuance until such time as the agreement might be finalized. However, the final agreement has not materialized, primarily as I have been informed, because of a clash of personalities. The matter remains on the court's docket subject to recall by any party. We have not sought to raise the matter because the charter school developers have complied with the provisions of the tentative agreement which minimizes any negative effect to desegregation process, the charter school developers are members of a historically Black church located deep within the Black community and are unlikely to draw any white students from the Monroe City School System which enrolls a student body which is more than 90% Black (to the extent that only Black students attend the school, it would decrease the number and percentage of Black students in the system overall and in specific schools), and the charter school appears to be poorly financed and is expected to close either at the end of this year or the next year.

    I learned from a newspaper article, that the school board had approved three charter schools. At the time of the newspaper article they had been in operation for over a year. Each charter school initially enrolled only fifty students; now, they enroll approximately 130 students. None of the charter schools have been approved by the court. The school board has yet to raise the propriety of the operation of these three charter schools; however, we have developed a tentative agreement with the board concerning these three and have indicated subject to the finalization of the agreement we will not object the operation of these three. It should be noted that one of the three is also operated by Children's Charter the same group that has been so vociferous about our decision to object to their second school.
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CHARTER SCHOOLS AND DOJ COURT ORDERED DISTRICTS

    We have reviewed the 1997–98 Directory of Charter Schools provided by the Department of Education as well as some more recent sources on the Net to determine whether charter schools in some form are present in school districts currently under court orders to which the United States is a party. We also called some state departments of education.

    Insofar as the Directory does not provide the name of the school district in which the charter is located, it is in some instances difficult to determine at a glance whether the charter is in one of our court ordered districts. The list provides only the name of the school and the city or town and state. We will be following up to get an updated and more accurate list.

    Alabama, Arkansas and Tennessee do not appear to have charter schools and Mississippi has only 1.

    The list provided by DOE is obviously stale, and the number of charters is mushrooming. For example, the 1997–98 Directory discloses 20 charters in Texas, none of which are in our districts. However, one Net source states that there are about 50 charters, with only the charter in Longview in our districts. But other sources say that for the current year, there are about 114 charters in the state and that the state has authorized about 143. We understand that there is a charter in Garland, which is one of ours, but not on any of the lists. In all events, we have asked the State AG's office for a current list by district. We are a party in the statewide case and in cases involving 39 separate districts.
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    We are a party in approximately 212 cases involving 497 school districts.

    In responding to Wall Street Journal Article, we would suggest focusing on East Baton Rouge and Georgetown, South Carolina. Those are the two districts referred to in the article. As you may recall, in Georgetown we sent a letter to the district opposing a proposed charter. However, the charter Harbor School for Arts and Sciences operates in the district and (after learning about it subsequent to its opening) we don't oppose it. The same is true for the three charters in East Baton Rouge, one of which is operated by the proponent of the proposed charter that we do oppose).

    Based on the information available, here is a state by state breakdown. The districts identified either by city or county are school districts under court order where we are a party and which have one or more charter schools.

Arizona
Phoenix
Tucson

Florida
Gadsden Co.
Jackson Co.
Polk Co.
Seminole Co.
Approved but not yet operating
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  Marion Co.
  Walkula

Georgia
Talbot Co.

Illinois
Chicago

Louisiana
East Baton Rouge Parish
Evangeline Parish*
Lafayette Parish
Monroe City
Point Coupee Parish*
St. Landry Parish
*Alternative school, which is a charter under state law, operated by school board.

Mississippi
Bolivar County—charter and magnet receiving federal funds
*Maximum allowed—6 in the state, one for each congressional district.

North Carolina
Rocky Mounty City
59 charters in state, adds 5 per year. We are a party in cases with 9 school districts. It does not appear, based on a cursory review of the addresses, that the other 58 are in our districts. We have requested a list from the state department of public instruction.
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South Carolina
Georgetown County
In development
  Colleton County

    We have requested a list from the state department of education.

Texas
Longview
Garland—maybe

     

From: Lim, Jeanette
To: crtO4.po(ahodgkis)
Date: 10/4/99 5:31pm
Subject: Charter School Desegregation Qs and As Attached

<<charterdoj2.clean.doc>>
    Anita—This is an early draft. Please let me know what you think. In the near future, DOJ will receive the complete set of Civil Rights Charter School Qs and As for review.

Jeanette
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DRAFT as of: 9/30/99 11:06 AM

    The Department of Justice and the Department of Education support the implementation of Charter Schools as a valuable way to enhance parent and student choices among public schools and give more students the opportunity to learn to challenging standards. The following information addresses common questions that persons planning public charter schools might have.

    Q: Is OCR or Court approval necessary in order to establish or operate a charter school where the operation of the charter school may impact the OCR or Court approved plan? What steps should charters take in order to establish a school that comply with an existing desegregation plan or court order for a school district?

    A: Generally, before any new school, including a charter school, may be established in a jurisdiction that is under a Title VI desegregation plan approved by OCR, the appropriate local education authority or charter school should contact OCR for further consultation on any applicable Title VI obligations. Similarly, LEAs and charter schools should consult with DOJ to make sure that any new school would not impede the purpose of a desegregation court order. The sooner that OCR or DOJ is notified of the proposal, the easier it will be to work together to ensure the charter school proposal can be implemented without delay or disruption.

    Q: Have the Departments of Education and Justice had any experience with LEAs obtaining Court approval to establish new and innovative schools and programs?

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    A: Yes, both Departments have experience in this area that will be helpful to LEAs considering new charter schools. The Department of Education awards grants on a competitive basis for magnet schools, including to districts under OCR plans as well as desegregation court orders where DOJ is a party. For school districts under court orders for desegregation, court approval is necessary for a successful applicant to receive the grant. LEAs request approval from the court, and the Department of Justice works cooperatively with the applicant, in cases where the United States is a praty, to ensure that approval in appropriate cases is obtained as expeditiously as practical. Applicants under an OCR plan or federal court order work with OCR or DOJ to ensure that new schools satisfy a desegregation plan or court order, enabling them to receive the federal grants.

    OCR and DOJ also will work together with jurisdictions under a desegregation plan or court order who are not applying for federal competitive grants (such as MSAP or PCSP funds) but are seeking to implement new schools such as charters. Whether or not the new school is applying for federal grants, it should consult the relevant federal agency as soon as possible to expedite the process so that there is not an unnecessary delay in opening the new school.

    Both Departments strongly believe that excellence, choice and equity can go hand in hand, and are willing to provide assistance and guidance to LEAs and charter school operators to meet these ideals.

    Q: How can a Charter School in a district with an OCR plan contact OCR?

    A: The LEA or Charter School should contact the Office for Civil Rights by phone or mail and provide them information about the planned school.
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    Q: How can a Charter School in a district under court order obtain approval?

    A: The LEA or Charter School Board should contact the parties to the order, including the Department of Justice and/or private plaintiffs, and provide them information about the planned school. Where DOJ is a party, we will work with the LEA and/or board to evaluate whether the proposal is consistent with the requirements of the applicable court order. In most cases, the LEA and any other parties to the order may also need to seek court approval of the planned school.

    Q: If OCR consultation or Court approval is required, when should such consultation or approval be sought?

    A: OCR consultation or DOJ consultation prior to seeking court approval will expedite matters and should be sought as early as possible. The earlier that OCR or DOJ is notified of the proposal, the easier it will be to work together to ensure the charter school proposal can be implemented without delay or disruption. For this reason, a LEA should not wait until just before the opening of school to seek approval.

     

From: Jeremiah Glassman
To: fmarshal, crtO4.po.ahodgkis
Date: 10/1/99 1:22pm
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Subject: chrtr schs

    Franz—the Texas DOJ Ct order districts in which charter schools are located are:

Tyler (2) schools
Wichita Falls
Longview
Richardson
Midland (3) schools
Lufkin
Temple

    Based on August 16, 1999 data from TEA, there are 159 charter schools in Texas.

    Texas has about 1000 school districts; we are party to deseg cases involving 42 specific districts as well as the statewide suit, us v texas.

    Please update list.

     

62858a.eps

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interpreting state charter school acts, as the statutes are somewhat shielded by the perceptions that they are encouraging educational experimentation,(see footnote 13) innovation,(see footnote 14) and entrepreneurialism.(see footnote 15)

    Nevertheless, the federal and state case law as it relates to race and charter schools has yet to be sufficiently decided by the courts. While much has been written on the equal protection implications of charter school programs, the issue of compliance with federal anti-discrimination laws has not been greatly litigated in the courts. According to my unofficial count, only three cases concerned this topic. The corpus of charter school cases in the school desegregation context is even more limited. Although the Connecticut Superior Court decided that charter schools can adequately serve as legislative remedies to school districts suffering from the vestiges of past segregation,(see footnote 16) this case does not adequately address the topic of this memorandum, the desegregation obligations of newly-instituted charter schools.

    The notion that charter programs are excepted from most state regulations is, depending on the enacting statute-valid; ''[t]he very nub philosophically of the charter school concept is to free charter schools from many of the statutory and regulatory strictures to which regular public schools are captive.''(see footnote 17) As some states provide less and others more independence from centralized education administrators, the freedom of charter programs relies on the applicable state law.(see footnote 18) This autonomy does not indicate, however, that charter programs are entirely private, non-regulatable entities. Several cases analyzing charter schools contend that charter schools are still public entities for the purposes of the law.(see footnote 19) Hence, the argument can be posited that charter schools would fall under much of the same scrutiny as other public entities in regards to desegregation law, or any other civil rights law for that matter. The obligations of public schools, specifically in terms of abiding by federal law, remain intact for charter schools.(see footnote 20)
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    The South Carolina Supreme Court provides the most helpful, and fortunately, most recent case on desegregation order obligations. In Beaufort County Board of Education v. Lighthouse Charter School Committee,(see footnote 21) the court affirmed the board of education's denial of a charter school application because of the applicant's noncompliance with school desegregation requirements. The Beaufort Board of Education had held that the application from the Lighthouse Committees failed to meet civil rights requirement in §59–40–50(B)(1) of the South Carolina Charter School Act.(see footnote 22) The South Carlina statute mandates that charter schools and traditional public schools would be treated quite similarly when they were subsidiaries of a school district under a desegregation order. As with public schools, a charter school must obtain approval for new school facilities from the U.S. Department of Education Office of Civil Rights (OCR) under the school district's 1970 consent decree.

    Through its noncompliance with federal law, the Lighthouse Committee had, in the same instance, violated the applicable state charter school law. Because the charter school had refused to receive OCR approval for the construction of its facility, it was found to violate §59–40–50(B)(1).(see footnote 23) Even though there was no clear evidence that this refusal would make the charter school ''racially identifiable,'' the Supreme Court concluded that the Committee's noncompliance would have an ''adverse effect'' on other students in the district. Thus, the applicant would contravene §59–40–70(C) of the Act, which outlaws such adverse effects.(see footnote 24) For these two reasons, the Lighthouse Committee was not permitted to receive a charter. The decision in Beaufort County Board of Education marks one of the rare instances in which a court has found that federal desegregation orders preclude a noncompliant applicant from establishing a charter school.
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    In a case unrelated to desegregation orders, but the only example of an equal protection attack on in the federal courts, several Hispanic parents brought suit in response to a Colorado school district's decision to close neighborhood elementary schools in favor of opening a charter school. The district court in Villanueva v. Carere(see footnote 25) considered the constitutionality of the school closures and the overall legitimacy of the state's Charter School Act.(see footnote 26) The facially neutral Act that did not involved a fundamental right was reviewed under the rational relationship test, not strict scrutiny.(see footnote 27) The court found that the statute did not suffer from a ''constitutional infirmity,'' as it denied the plaintiff's equal protection claims that the Act permitted Hispanic students to suffer gross disparities in funding, educational quality, and school closures, among other arguments.(see footnote 28) Since there was no clear intent to discriminate on part of the school district, the decision to close the schools did not violate equal protection and the plaintiffs failed to demonstrate a disparate impact, thereby defeating their Title VI and Equal Educational Opportunities Act arguments.(see footnote 29) As a result, the court found that both the Charter Schools Act and the decision to close the schools were permissible under federal law. Under Villanueva, plaintiffs alleging that a charter school program creates a disparate educational impact must show intent to discriminate.

    The case law on this topic does suggest that charter schools are to be legally considered as public entities, despite their considerable ''degree of statutory autonomy.''(see footnote 30) Cases like Beaufort County Board of Education, Villanueva, and the Wisconsin Supreme Court case Jackson v. Milwaukee Teachers' Education Association(see footnote 31) indicate one thing, if anything: the case law on racial requirements and charter schools is yet to be sufficiently determined. In both Villanueva and Jackson, the constitutionality of a state's charter school act—not a charter school applicant—was attacked on equal protection grounds. Neither the Colorado nor the Wisconsin charter school laws were struck down by their respective courts, indicating the difficulty in establishing that a facially neutral statute has an adverse effect or a disparate impact on desegregation. It is worth noting, however, that neither of these cases involved school districts that were under court-ordered desegregation plans. Beaufort County Board of Education, on the other hand, did involved a school district with a desegregation order. This cases is one clear sign that the courts will not tolerate charter school applicants that are noncompliant with the state charter school law's civil rights or desegregation provisions. What remains to be decided in the courts is whether charter school applicants will be under the same court-ordered desegregation obligations when a state's authorizing statute lacks such civil rights provisions.
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II. STATUTES

    Despite the scarcity of cases on this topic, much on a charter school's desegregation responsibilities can be gleaned from the authorizing statutes. To date, 34 states and the District of Columbia have enacted charter school laws, creating over 1200 charter schools nationwide.(see footnote 32) The proliferation of school choice laws should instigate a circumspect evaluation of the actual stipulations of the states' charter school-enabling acts, especially as they pertain to civil rights. Many states have provisions within their statutes that mandate compliance with applicable federal laws, but several of these provisions pertain to health and safety regulations only.(see footnote 33) Akin to the South Carolina Charter School Act, a number of states have specific civil rights provisions, preventing exceptions from federal, state, and (sometimes) local anti-discrimination laws;(see footnote 34) some of the charter laws simply prohibit discrimination against minority groups in admissions without reference to these anti-discrimination laws.(see footnote 35)

    Nine states expressly require that all charter school applicants adhere to the stipulations of longstanding school desegregation orders; these nine states are Arizona, Colorado, Delaware, Illinois, Michigan, Nevada, North Carolina, Pennsylvania, and Virginia.(see footnote 36) Provisions like these treat charter schools in a manner similar to that of regular public schools, and the courts would be bound to follow the guidance of the statute if faced with this particular issue. It bears noting, however, that several states, including Arkansas, Maryland, New Mexico, and Texas lack a. civil rights, desegregation, or even the minimal ''comply with federal law'' provision in their charter school statutes. Perhaps these acts will be amended in subsequent legislative sessions, but to date, these provisions do not exist as of my most recent search.
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    Regardless of the open enrollment process that takes place in most charter schools, i.e., admission is open to students from across school district boundaries, charter schools will be governed by the law of the district in which it is geographically situated. The majority of the state laws with civil rights provisions or desegregation requirements adequately reflect this notion. The available case law, which treats charter schools as political subdivisions under the auspices of the school district, also affirms this conclusion. In other words, desegregation orders affecting an entire district should also affect a charter school established within that district.

89III. Secondary Sources

    The South Carolina case is not the only example of a charter applicant's rejection due to noncompliance with a school desegregation order. In Pennsylvania, a local school board decided to deny California-based Mosaica Education, Inc. permission to establish a charter school due to concerns of whether the proposed charter school could comply with a federal court-ordered desegregation plan.(see footnote 37) The potential for charter school compliance cases in Phoenix and Milwaukee(see footnote 38) indicates that the battle over charter programs within court-ordered districts is likely to continue.

    As the decision-making bodies in South Carolina and Pennsylvania concluded, charter schools are compelled to comply with federal desegregation orders in order to receive approval. According to the Department of Education:

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When a public charter school is being established in a school district that is under a Title VI desegregation plan approved by OCR or a court order requesting desegregation, the charter school must be established and operated in a matter that is consistent with the OCR-approved desegregation plan or order. Generally, the establishment of a public charter school in a school district may not substantially iinpede or retard the scope of desegregation. For example, where the school district is operation under an OCR-approved or court-ordered desegregation plan, the establishment of a public charter school must not adversely affect the racial composition of the schools from which the charter school students will be drawn, such that the school district would not be in compliance with the desegregation plan or court order.(see footnote 39)

Several observers in the field of education law reiterate this point, suggesting that charter schools must comply with desegregation orders under general circumstances.(see footnote 40)

    The judiciary's federalism-inspired movement toward state experimentation will not necessarily result in a lenient treatment of charter schools within court-ordered districts. One attorney writes: ''Although the courts are becoming more conservative and inclined to give desegregated school districts more flexibility than in the past, even the more conservative courts are not likely to allow a desegregating school system to implement a choice plan that results in widespread resegregation.''(see footnote 41) Because desegregating school systems are prohibited from pursuing a course of action that would disproportionately impact minority students or faculty members,(see footnote 42) it is unlikely that courts will permit the approval of charter applications that adversely effect court-ordered desegregation plans.
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    As long as the desegregation plan is still in place, school districts will have their choices made for them by the courts. This fact will effectively determine whether a charter school initiative will receive approval. Thus, school districts under desegregation orders have a less difficult time reconciling their enrollment options.(see footnote 43) The question remains, however, whether charter schools not encountering court orders will tend toward racial isolation or segregation.(see footnote 44) Inevitably, the desegregation obligations of charter schools not under a consent decree will have to be ascertained by either the state or federal courts.

    CONCLUSION: In states with statutory civil rights provisions, charter schools would have the same obligations as regular public schools when under school district with a school desegregation order. It is highly probable that applicants for charter schools will have their application denied or their charter revoked if they are noncompliant with the desegregation decree or the school desegregation rulings of Green and Swann. The U.S. Department of Education's declaration on this point affirms the preliminary conclusion that charter schools are to be viewed no differently from non-charter schools on this particular issue.The verdict is not out, however, on desegregation requirements of charter schools not under court order. Charter schools in states with civil rights and ''anti-racial isolation'' stipulations would be statutorily prohibited from inducing segregation in the classroom. In states without such civil rights provisions, the answer is much less clear. Perhaps the argument can be made that charter schools, irrespective of their state act's content, are all public (at least quasi-public) entities, and therefore responsible for following the civil rights law of the governmental body from which they receive funding. If this argument is correct, then every applicant must obey the civil rights demands of the state that grants them the enabling charter.
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62858b.eps

City of Emporia, 407 U.S. 451, 461 (1972) (proposed creation of separate school district viewed as development of new boundary lines which ''must be judged according to whether it hinders or furthers the process of school desegregation''.) Hull v. Quitman County Bd. of Educ., 1 F.3d 1450 (5th Cir. 1993) (school closure); Harris v. Crenshaw County Bd. Of Educ., 968 F.2d 1090 (11th Cir. 1992)(consolidation of high schools) Stell v. Savannah-Chatham County Bd. of Educ. 888 F.2d 82 (1989)(new desegregation plan including school construction, magnet programs)

    A review of the court orders under which the school system operates should be examined for any specific language regarding procedures for modifying the student assignment plan or school construction. Sometimes court approval is required, while other times there is a provision for notice and opportunity to file any objections with the court. If there is no specific reference to modifying the court order, court approval is still required if the court order specifies the desegregation plan, i.e., designates the facilities, grade configuration and boundary lines, particularly if by injunction. Any change to that plan, including creation of a charter school, would then require court approval. Even if the facility/student assignment plan is not specified, as may be the case in a pre-Swann plan or in school districts operating under a general injunction,(see footnote 45) the district remains under desegregation obligations and, at a minimum, must ensure that the charter school does not discriminate in the admission of students to the program. Harris at 1094–95.
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    This memorandum discusses the legal framework and standards for analyzing a charter school proposal. Reviews of modifications to a court order and questions of compliance with desegregation obligations are fact specific, and there must be an examination of the current status of the school district, as well as the specific plan for creation of the charter school. While reviews should be fact-specific, there should not be a ''blind deference to an objective mathematical formula,'' but should be made from a ''qualitative viewpoint.'' Lee v. Eufaula City Bd. Of Educ., 573 F.2d 229, 232 (5th Cir. 1978). Five contexts for analysis are discussed: 1) Split-Off Districts; 2) Student Transfers; 3) Magnet Schools; 4) School Construction; and 5) Private School Issues (state funding, state approval or certification, and conversion from public school).

SPLIT-OFF OR SPLINTER SCHOOL DISTRICT

    Charter schools are located within the boundaries of a school system, receive public funds that may have been diverted from the public school system, and may even be located in a school building that formerly operated as part of the school district. Their conversion to an independent entity makes them most analogous to the creation of a separate school system from land and even facilities once part of a school district. The creation of a split-off or splinter school district from a school district that operates under a school desegregation order is subject to court approval; the new district must show that establishing the new school system will not adversely impact the desegregation plan in place in the original school district. Valley v. Rapides Parish School Board, 173 F.3d 944 (5th Cir. 1999).(see footnote 46)

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    This most recent Valley decision restates longstanding desegregation case law on the creation of a separate school district. A common thread throughout the cases is the test first stated by the Supreme Court in Wright v. Council of City of Emporia, 407 U.S. 451, 92 S.Ct. 2196 (1972), in its examination of a proposal for a split-off district made just days after the county school system was ordered to begin implementing a substantive desegregation plan rather than continue its ineffective freedom of choice plan. The Court held that in such situations,

where a dual school system had long flourished . . . such a proposal must be judged according to whether it hinders or furthers the process of school desegregation. If the proposal would impede the dismantling of the dual system, then a district court, in the exercise of its remedial discretion, may enjoin it from being carried out.

    Racial disparities between the current and proposed splinter district would not be a sufficient reason, standing alone, to enjoin the creation of the separate school district, Id. at 464. ''[T]he constitutional command to desegregate schools does not mean that every school in every community must always reflect the racial composition of the school system as a whole.'' Id., citing Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 24 (1971). The Court refused to allow the creation by the state legislature of a predominantly white, small school district in the middle of a predominantly black county school system (57% white in new system as compared to 77% black in the remaining portions of the original district, and 89% black in one section of the district); this proposal was also made in the wake of a desegregation order. United States v. Scotland Neck City Board of Education, 407 U.S. 484 (1971). Nor does it matter what the purpose of the proposal is or that there is a sound educational reason for the change; the test is the effect of the change on the school district operating under a court desegregation order. Wright at 461.
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    Subsequent court opinions have assessed the impact of proposed splinter districts in school districts operating under a desegregation order for some period of time, and further removed from the order dismantling the structure of the dual school systems, and require that the proposed split-off district have the opportunity to establish that the proposal will not impede desegregation. Ross v. Houston ISD, 559 F.2d 937 (5h Cir. 1977). This case reiterated factors outlined in the Wright opinion in assessing a split-off proposal which should be also be considered when reviewing a charter school proposal:

1) Changes in education quality. Would upgrading the quality of education for students in the new district (or charter school) have a substantial adverse effect on the quality of education for students remaining in the district? If so, then creation of the new entity should not be allowed;

2) Chances in student composition. Mere changes in racial ratios are insufficient, but shifts in the ratios would be likely to cause problems such as white flight from old system or white returns from private schools to new system/school, would be a bar; and

3) Timing. If establishment of the new entity is a reaction to the operation of the desegregation order, such as implementation of a new plan, it may carry the negative message condemned in Brown I.

    The recent Valley decision restates the Wright and Ross standards, that the new district must not adversely impact the desegregation plan in place, but there must be an opportunity to defend the creation of the proposed entity. Proposals for charter schools should meet the same standards as restated in Valley.
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1. There will be available procedures, methods and agreements in place to avoid adverse impact on the present desegregation plan, and the new entity will support their implementation (a statement of support);

2. If this is established, then state or board of trustees may proceed with organizing the new district, but the organizing entity must carry the burden at each step to show how the new district (or school) will work with the original district on the matters outlined in Singleton, including student assignment between the current district and the new district, impact on curriculum, faculty issues (employment/discharge/assignment), facilities (financing, construction, school closure and utilization), district-wide programs such as magnet schools; and

3. Even if these standards are met, the burden remains on the new district to establish that its implementation will not have an adverse impact on parts of the district.(see footnote 47)

    The split-off or splinter district analysis provides the most comprehensive analysis for charter school proposals. There are aspects to charter schools, however, that make other analogous legal approaches necessary.

INTERDISTRICT TRANSFERS

    The creation of a split-off district creates new jurisdictional boundary lines and new student assignment zones. A charter school is located within a school district, but doesn't generate new boundary lines. Student assignment is made by means other than geographical location, usually by student application. The student resides within the original school system, but leaves to attend school in another public entity. For these reasons, charter school proposals should be compared to interdistrict transfers
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    The standards for analysis of interdistrict student transfers are clear. Case law does not prohibit such transfers, but it does require that if a school district accepts transfers, it must have procedures to measure the impact of student transfers on the affected schools and districts. See United States v. Lowndes County Board of Education, 878 F.2d 1301 (11th Cir. 1989); Lee v. Eufaula City Board of Education, 573 F.2d 229, 235–36 (5th Cir. 1978); Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969). Such monitoring is, of course, necessary to assure compliance with the usual Singleton provision in virtually all desegregation orders which requires:

If the school district grants transfers to students living in the district for their attendance at public schools outside the district, or if it permits transfers into the district of students who live outside the district, it shall do so on a non-discriminatory basis, except that it shall not consent to transfers where the cumulative effect will reduce desegregation in either district or reinforce the dual school system.

    Monitoring of such transfers requires a qualitative analysis of which a numerical or quantitative review is only a factor. ''Cumulative effect'' is probably the most debatable point, and must be measured on a school-by-school basis. Eufaula at 234.

    The transfers of students from the resident school district operating under a school desegregation order to a charter school should be similarly measured, looking for the impact on the specific schools from which students as transferring as well as the racial enrollment at the charter school in comparison to the sending schools, specific parts of the system (See, Scotland Neck) and the original district as a whole.
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MAGNET SCHOOLS

    Students enrolled in charter schools are usually enrolled through some application process, sometimes combined with a lottery if there are more applicants than seats. For this reason, charter schools are analogous to magnet schools. The primary issue for magnet schools is whether certain racial enrollment percentages can or should be required in the magnet school, and whether any caps or preferences can be imposed on magnet school enrollment in districts operating under court order.(see footnote 48) While the duty remains to show ''that any current racial imbalance is not traceable, in a proximate way, to the prior violation . . .'' Pitts at 494,courts are increasingly reluctant to impose new remedies. ''As the de jure violation becomes more remote in time . . . it becomes less likely that a current racial imbalance in a school district is a vestige of the prior de jure school system.'' Id. The standard in reviewing proposed changes such as establishment of a charter school, ''considerations of good faith compliance, practicability of further desegregation, and local control . . . are also pertinent to determining whether a particular school board action, in a district that has long lived with a desegregation decree but failed to seek dismissal of the case, sufficiently comports with the goals of the decree.'' Hull v. Quitman, 1 F.3d 1450, 1454 (5th Cir. 1993). Racial balance among all district schools has never been required. Swann at 23–24, 91 S.Ct. at 1280.

    Nonetheless, protections may be imposed to prevent adverse impacts on desegregation. Admission quotas may be used to assure that voluntary attendance at a magnet school does not undermine desegregation elsewhere in the district nor turn the magnet school into a haven for those seeking to attend a school predominantly composed of those of their own race. Davis v. East Baton Rouge Parish School Bd., 514 F.Supp. 869, 1440 (M.D. La. 1981), citing Morgan v. Kerrigan, 530 F.2d 401, 423 (1st Cir. 1976). But approval was affirmed of a partial school magnet program (magnet program placed at school, but not all resident students participate in magnet program) that would subject some of the students to ''in-school segregation.'' Stell v. Savannah-Chatham County Board of Education, 888 F.2d 82, 84 (11th Cir. 1989). The court distinguished Davis at 872 and United States v. Pittman, 808 F.2d 3 85 (5th Cir. 1987), two cases rejecting partial magnet programs, because these two districts had made no serious effort to desegregate schools while Savannah had implemented plan. Additionally, the rejected plans left one-race schools in place while Savannah's plan proposed integrating all the schools. Stell at 84.
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    This means that a charter school proposal need not project nor maintain racial enrollment tat reflects the district as a whole. How much deviation will be allowed will depend on prior desegregation efforts by the district, Stell, as well as the impact of the charter school on the rest of the district, Scotland Neck, Eufaula. Additionally, continued efforts to monitor the impact on the original district will be required. Valley.

SCHOOL CONSTRUCTION

    Charter schools are analogous to school construction issues because a new school is opening, sometimes an old school is being closed in the sense that it is converting to a charter school. These facility questions have been addressed extensively in case law, demonstrating the importance and long-term affects of construction decisions. This school construction analysis is useful in looking at charter school proposals. A School Board has a duty to ensure that future construction does not resegregate the school system. ''In devising remedies where legally imposed segregation has been established, it is the responsibility of local authorities and district courts to see to it that future school construction and abandonment are not used and do not serve to perpetuate or re-establish the dual system.'' Pitts v. Freeman, 755 F.2d 1423, 1426 (11th Cir. 1985), citing, Swann v. Charlotte-Mecklenburg Board of Education, 402 U.S. 1, 21, 91 S.Ct. 1267, 1279 (1971). In fact, a School Board is obligated to use the construction program to further desegregation and eliminate remaining vestiges of the prior dual system. ''[A school board] has an affirmative duty to solve the . . . overcrowding, problem in such a way that it furthers desegregation and helps eliminate the effects of the previous dual school system.'' Pitts at 1427. [A school board's affirmative duty to desegregate] is violated when the school board fails to consider or include the objective of desegregation in such decisions as whether to construct new facilities. Id.
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    New school construction can be a tool for the implementation or frustration of desegregation orders. The following factors should be considered by the School Board before undertaking school construction, and should demonstrate to the Court and parties that these have been considered:

 1. population growth;

 2. finances;

 3. land values;

 4. site availability;

 5. racial composition of the student body;

 6. racial composition of the neighborhood of the proposed school and the residence of the students;

 7. capacity and utilization of existing facilities;

 8. transportation requirements;

 9. the location of a proposed school to maintain equality, i.e., the burden of bussing between blacks and whites;
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10. recommendations by the State Department of Education;

11. potential for future re-segregation. United States v. Hendry County School District, 504 F.2d 550, 552 (5th Cir. 1974).

    ''The construction of new schools and the closing of old ones are two of the most important functions of local school authorities and also two of the most complex. They must decide questions of location and capacity in light of population growth, finances, land values, site availability. . . . Over the long run, the consequences will be far reaching. . . .'' Hendry at 553, citing, Swann at 20–21, 91 S.Ct at 1278–79. Further, school construction should be used affirmatively to address desegregation issues. ''There is an affirmative duty, overriding all other considerations with respect to the locating of new schools, except where inconsistent with 'proper operation of the school system as a whole' to seek means to eradicate the vestiges of the dual system.'' United States v. Board of Public Instruction of Polk Co., Fla., 395 F.2d 66 (5th Cir. 1968).

PRIVATE SCHOOL CONVERSION

    There are instances where a charter school is converted from a private school and becomes a public entity. In such cases, there should be a determination whether the non-public school was established or expanded in the wake of desegregation of public schools in its area and whether blacks have never been enrolled in or been employed by the school. See Brumfield v. Dodd, 425 F.Supp. at 528, 531 (E.D. La. 1976), citing Norwood v. Harrison, 382 F. Supp 921, 924–25 (N.D. Miss. 1974).
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    If such facts are established, then the public entity State must demand that the non-public school rebut this prima facie case of segregation with more than a mere denial of purpose to discriminate, by offering substantial and credible evidence of objective acts and declarations showing that the absence of blacks was not proximately caused by the school's policies and practices. Such proof should normally include evidence of active and vigorous recruitment programs to secure black students and teachers, proof of continued, meaningful public advertisements stressing the school's open admissions policy, proof of communication to black groups and leaders of the school's nondiscriminatory practices, and ''similar evidence calculated to convince one that the doors of the private school are indeed open to students of both the black and white races upon the same standards of admission.'' Brumfield at 532, citing Norwood at 924–25. If establishment of the charter school is approved, then careful monitoring should continue to ensure that desegregation is not impeded. Valley; Ross.

     

62858c.eps

The purpose of this Act was to 1) provide start-up funds for planning, design and initial implementation of schools; 2) help establish 3000 charter schools by the year 2000; and 3) evaluate the effects of charter schools. [A copy of this statute is attached.]

    The United States Department of Education is conducting a longitudinal study of charter schools. The Department produces an annual report about the characteristics of charter schools, including the number of schools by state, the means of their implementation and their impact on public education, including a comparison of demographic data between the charter schools and the school districts within which they are located. A copy of the most recent report, The State of Charter Schools Third-Year Report—May 1999, [is attached (portions are attached) for your information] [can be found at www.ed.qov/pubs/charter3rdyear/.] The background information about charter schools in this memorandum is derived from that report. A memorandum was written and distributed last summer by two interns in our office, Sherri North and Richard Greene. This document, Charter Schools. Civil Rights and Constitutional Implications of the Federal and State Legislation is also available for your review.
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    As of the beginning of the 1997–98 school year, 1,050 charter schools (1,129 if separate campuses of a charter are counted) operated in 27 states plus the District of Columbia. Over 40% of the schools are located in just three states: California, Michigan and Arizona. Twelve states have 15 or fewer charter schools. A total of 33 states have passed charter school legislation. The total number of students enrolled in charter schools as of September 1998, numbered 160,000 students, a 50,000 student increase in just one year. Approximately 65% of all charter schools enroll less than 200 students, and about 10% of charter schools enroll more than 600 students. The median enrollment is 132 students, down from 149 students in the previous year's report.

    Charter schools are established by creating a new school, converting a public school to a charter school or converting a private school to a public charter school, enabling it to obtain the public charter school monies.(see footnote 49) Approximately 70% of the schools are newly created while 19% were pre-existing public schools and 11% were pre-existing private schools. Charter schools which previously operated as public schools often face opposition by local and state school boards, teacher unions or collective bargaining units. Three states, including Mississippi, do not allow newly created charter schools. Pre-existing private schools can convert to charter schools in 10 states, including North Carolina, South Carolina and Texas. Florida also allows private school conversion, but only after the school has disbanded and reincorporated with a new board; student enrollment must be obtained through a public lottery.

    Most charter schools provide non-instructional services such as health or social services or before/after school care. These services are sometimes provided by the public school system or an outside provider. Accountability varies by state as does the degree to which the charter school must comply with state regulations. Monitoring may be done at the state or local school district level. Most charter schools must report to the chartering agency, the school governing board and the state department of education .
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    The demographic data is encouraging, and the fear that these schools would become white enclaves has not materialized. The Third Year Report looked at the 1997–98 charter school enrollment in 24 of the states (those with three or fewer schools were not included since the numbers are too small to provide statistically accurate data) and compared it to public school enrollment for the 1996–97 school year in these states. Over 70% of charter schools have student enrollments within 20% of the surrounding school district racial enrollment, and 16% had a higher percentage of students of color enrolled than in the surrounding school district. In the states with charter schools, the student enrollment in public schools is 63% white while the charter school enrollment is 55% white. The student enrollment in public schools in these states is 16% black while the charter school enrollment is 22% black. The hispanic enrollment is about 20% in both public and charter schools.

    Five of the 24 states analyzed are states with a number of school districts operating under court order where the United States is a party: Florida, North Carolina, Texas, Louisiana and Georgia. Only Georgia has a significantly higher percentage of white students in charter than in public schools.

    Other indicators of access also show that charter schools, as a whole, are not elitist enclaves. The percentage of students in free and reduced lunch in charter and public schools is similar: 37% and 38%. The percentage of charter students on free/reduced lunch is higher than in public school in five states, including Texas (69% in charter schools, 46% in public). The percentage is lower in charter schools than public schools in five states, including Georgia (29% in charter schools, 41% in public schools). Eight percent of students in charter schools have disabilities as compared to 11% of public school students in the 24 states. The LEP comparison was made between 1997–98 charter school enrollment and 1994–95 public school enrollment, both of which averaged about 10% LEP enrollment, but there are variances among the charter states.
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    While the worst fears about the creation of charter schools have not materialized, it does not mean that their presence in school districts operating under court order should not be subjected to scrutiny under the usual legal standards used for modifications to school desegregation orders. A separate memorandum addresses these legal issues.

     

BATON ROUGE, LA.—CHILDRENS CHARTER SCHOOL

    In February, 1998, we were informed by the counsel for the East Baton Rouge Parish School System that the Board had received an application for the establishment of the Childrens Charter School to be operated within the boundaries of the East Baton Rouge Parish School System. Additionally, we were informed that the Board would probably approve the application at its next meeting. I reminded counsel that the Board needed to obtain the approval of the court prior to giving the charter school permission to operate. We met with the administrators of the charter school on several occasions to discuss how the charter school would operate in light of the extant desegregation order. We requested information which would allow us to evaluate the operation of the charter school in the context of the possible effect on the school board's ability to fulfill its obligations under the consent decree, the desegregation order, and applicable federal law. This process continued sporadically for several months. The charter school failed to provide all of the requested information and maintained that as a charter school is is exempt from most regulations and therefore, should be allowed to operate without regard to the possible effects on the local school district so long as it did not intend to discriminate against children on the basis of race.
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    On February 9, 1999, the School Board filed a motion seeking permission of the court to allow Childrens Charter School to operate; at the same time the Board Asked the court to continue the hearing indefinitely. The court granted the Board's request and did not set the motion for a hearing. Subsequently, Childrens Charter filed a motion to intervene. Thereafter, the court denied Childrens Charter's motion to intervene on March 24, 1999.

MONROE, LA—NEW VISION CHARTER SCHOOL

    In August, 1997, we were informed by the counsel for the Monroe City School System that an application to establish a charter school had been submitted to the Board and that the Board had denied the application. Thereafter, we were informed that the Louisiana Board of Elementary and Secondary Education had overruled the local Board and approved the application on September 24, 1998. The counsel for the local Board requested our assistance because it believed that the operation of the charter school would negatively affect its ability to comply with it extant desegregation order and plan. We contacted the charter school administrators and requested information concerning its operation. In August, 1998, the local School Board filed a motion for a restraining order seeking to enjoin the openning of the charter school. The matter was set for hearing and then continued at the request of all parties. Thereafter, the matter was set for hearing in October, 1998. During the hearing the parties met to attempt to negotiate a settlement. The court agreed to continue the hearing based on statements of the School Board and the charter school that a tentative agreement had been developed. The charter school was allowed to operate in the interim. We never took a formal position on the operation of the charter school except that its operation could not negatively effect the School Board's ability to comply with the extant desegregation plan and order.
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ST. HELENA PARISH, LA.—SABIS CHARTER

    While in the midst of discussions with the administrators of the charter school to be opened in Baton Rouge in August, 1998, we learned that the St. Helena Parish School Board had received and denied a charter school application. Subsequently, we learned that Louisiana Board of Elementary and Secondary Education (BESE Board) had overruled the local Board and approved the application. Thereafter, we met with the representatives of BESE Board to obtain information about the charter school and process the BESE Board utilized to consider the application. We are still in the process of obtaining information from the St. Helena Parish Board and the BESE Board which will allow us to fully evaluate the possible effects of the operation of the charter school on the local Board's ability to comply with its plan.

     


Prepared by: Karen Stevens, 3-8622
Reviewed by: Bill Yeomans: 4-4127
Date/Time: 04/11/99; 1 1:00 a.m.
CHARTER SCHOOLS/ LOUISIANA

Talking Points

 Allegations that the Civil Rights Division has embarked on a ''campaign to stop charter schools in their tracks'' are baseless. Thanks in part to the leadership of President Clinton, school districts across the country have embraced charter schools as an innovative way to improve the quality of education. In fact, since President Clinton took office in 1993, the number of charter schools has risen from just one to more than 1,100.
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 Fundamental civil rights goals of breaking down segregation and ensuring equal educational opportunities for all Americans can be achieved simultaneously with the development of charter schools.

 The Justice Department did not oppose the opening of a new charter school in East Baton Rouge, Louisiana. It simply asked the new charter school to take steps to avoid further segregating the school system. There are other charter schools in East Baton Rouge Parish that the Justice Department has not opposed.

Background

    Charter schools are publicly funded schools that generally operate free from any day-to day supervision by the central school board and are exempt from many state and local regulations covering public schools. In a March 22, 1999 article in the Wall Street Journal, Clint Bolick charged that Bill Lann Lee was on a mission to stop the development of charter schools in areas under desegregation orders. The article cited alleged Civil Rights Division actions involving charter schools in three districts in Louisiana and one district in South Carolina. Proponents of a school in Louisiana school raised similar allegations in a recent Charter School Listening Conference sponsored by the Department of Education. The Department of Education has informed us that members of Representative Goodling's staff have informally expressed interest in receiving a briefing on this topic.

    The Division has investigated the charges in the article and found them inaccurate. Details on each of the four districts cited in the article are provided below. The Division has also met with the Department of Education to begin to develop policy guidance to be issued by the Department of Education explaining the obligation of recipients of federal funds to assure that AU new school they fund or operate, whether a charter school or other school, complies with any applicable Education or court desegregation order.
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    The four districts cited in the article are East Baton Rouge, St. Helena Parish, and Monroe, all in Louisiana, and Georgetown, South Carolina.

 East Baton Rouge Parish, LA. The article alleged that the Division went to court to stop the opening of the United Charter School in East Baton Rouge. This is wrong. The Division simply asked the new charter school to take steps to avoid further segregating the school system. And there are other charter schools in East Baton Rouge Parish that the Justice Department has not opposed.

 St. Helena Parish, LA. The article alleged that the Division objected to a new school operated by SABIS International. In fact, the Justice Department did not oppose the charter school, it merely asked questions regarding the school's potential impact on desegregation.

 Monroe, LA. The article alleged that the Division supported an effort to shut down the New Vision Charter School. In fact, it was the local school board that first opposed the proposed charter school because it believed the school would impair its ability to meet its responsibilities under its desegregation order. When the state board overruled the local board's decision, the Justice Department encouraged all parties to work together to develop a mechanism to minimize any impact on the desegregation process. The charter school is currently operating and the Justice Department has not raised any issues regarding its operation.

 Georgetown, SC. The article alleged that the Justice Department stopped the conversion of certain schools to charter schools. That is wrong. While the Department informed the board that it opposed the schools, it was the voters in the county that thwarted the project. Another charter school is currently operating in Georgetown County and, again, the Justice Department is not objecting.
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CHARTER SCHOOL INFORMATION: MS, SC, NC (AS OF MARCH 31, 1999)

Mississippi

    Mississippi's charter school law, passed in 1997, places a maximum of 6 charter schools in the state (one for each Congressional district). There currently is one charter school in the state, and it also operates as a magnet school:

Hayes Cooper Math and Science Center
Cleveland School District
Bolivar County, MS

According to Dr. Wayne Moore, the Charter School Consultant to the Mississippi Department of Education, the Hayes Cooper school receives both charter and magnet funds from the federal government. Bolivar County is composed of six school districts, at least one of which is under a desegregation order to which the United States is a party (United States v. Bolivar County Sch, Dist, No. 4, C.A. No. 6531–S (N.D. Miss.); DJ 169–40–92). Whether the Cleveland School District is subject to this desegregation case could not immediately be determined.

North Carolina

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    North Carolina's charter school law, passed in 1996 and amended in 1997, caps the number of schools at 100 (5 per year, per district). According to data provided by the U.S. Charter Schools web page (http://www.uscharterschools.org), 59 charter schools were in operation as of September 1998, and 5 more are scheduled to open in the fall of 1999. The United States is a party to 9 desegregation cases in North Carolina; whether any of the charter schools are situated in these districts could not immediately be determined. We have requested a list of.charter schools from the North Carolina Department of Public Instruction.

South Carolina

    South Carolina's charter school law was passed in 1996. According to data provided by the U.S. Charter Schools web site (http://www.uscharterschools.org), as of September 1998 five charter schools were operating in the state. The web site for the Center for Education Reform (http://edreform.com) also lists five schools, and we have requested a list of charter schools from the State Department of Education. Each school is listed below; where the district is operating under a federal desegregation order to which the United States is a party, the case information is provided:

1. Charles Aiken Academy, Belton, SC (Belton is in Anderson County School District No. 2; U.S. has a case involving Anderson No. 3)

2. Ecole Internationai Massillon Charter School, Greenville, SC

3. Education Redirection Charter School, Charleston, SC (Desegregation case filed by U.S. dismissed)
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4. Harbor School for Arts and Sciences, Georgetown, SC (United States v. Georgetown County Sch. Dist., C.A. No. 69–43 (D.S.C.); DJ 169–67–72)

5. Marlboro County Charter Alternative School, Clio, SC

    The U.S. Charter Schools web site lists two other categories for South Carolina:

Chartered but not operating charter schools:
The Lighthouse Charter School, Hilton Head, SC

In development charter schools:
Proposed Trio Charter School, Walterboro, SC (United States v. Colleton County Sch. Dist., C.A. No. 70–607 (D.S.C.); DJ 169–67–48)

     

    1. The South Carolina matter referred to in the article is United States v. Georgetown County School District. The United States and the District entered into a Consent Decree, which was approved by the court on August 28, 1997. In the Consent Decree, the District acknowledged its duties to alleviate the racial isolation of African American students in the Choppee area of the county and equalize resources. Thus, the District agreed to consolidate certain attendance areas, close schools, and replace the closed schools with new facilities. County voters approved a $109 million bond referendum and the District committed to opening the new schools prior to the 2001–02 school year.
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    In the fall of 1998, a group of parents formed the Pleasant Hill Area Charter Schools Committee. The Committee intended to apply to the Georgetown County School Board to convert the schools closed under the consent decree to charter schools, pursuant to the South Carolina Charter Schools Act of 1996 (S.C. Code §59–40–10 et seq.). Pursuant to the statute and at the Committee's request, the Board held an election among the Pleasant Hill schools' faculty, who voted in favor of the conversion to charter schools.

    The United States sent Board counsel a letter dated November 6, 1998, in which we stated that to fulfil its Constitutional responsibility to desegregate, the District must abide by its commitments under the consent decree. Thus, the board should disallow conversion of schools closed under the decree to charter schools.

    In discussions with Board counsel, we explained that our position was not in conflict with South Carolina state law. First, Section 59–40–50 of the South Carolina Charter School Act states that a charter school must adhere to the same civil rights requirements as are applied to other schools operating in the same school district. Second, in Beaufort County Bd. of Educ. v. Lighthouse Charter Sch. Comm. and the State of South Carolina, No. 97–CP–07–794, Order at 13–14 (S.C. Ct. Com. Pleas Feb. 21, 1998), the Court of Common Pleas reversed the South Carolina Board of Education's decision approving the application of the Lighthouse Charter School Committee. The Court held that the Committee had failed to prove that the charter school could adhere to the Beaufort County Board of Education's voluntary compliance agreement with the U.S. Department of Education, Office for Civil Rights.

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    On December 1, 1998, the parents in the Pleasant Hill area voted by a 2 to 1 margin against converting the three public schools into charter schools.

    2. East Baton Rouge.

    The Division did oppose the intervention in the lawsuit by the charter school group, stating that their interests are adequately represented by the school board, which they agreed with.

    The school board approved the charter school and filed a motion with the court asking for approval. However, the school board, not the United States, asked the court to postpone consideration of the motion—approval to open the charter school. Therefore the court relieved the parties of the responsibility to respond to the motion. However, we have met with the school board and informed them of concerns, including the drain of funds necessary to support the consent decree and the possible impact on the little bit of desegregation achieved at the schools near the proposed charter. Contrary to the articles suggestion that the charter would enroll 650 students, the actual contemplate enrollment is 1200. 650 is just the first year.

    The article says that our concern that the proposed charter will draw off white students is dubious because the charter will be located in a black neighborhood. However, the charter will be in a new building on the edge of a black neighborhood in a strip mall on a major thouroughfare next to police station. So our concern is not dubious. All we have asked is that the charter take measure to avoid drawing these few white students out of these nearby schools, and the same with respect to black students at white schools.

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    3. St. Helena. Small rural school district of less than 2000 students, which is close to 95% black. The local school board rejected the charter application because of concerns about the impact of the charter on the system. State Board over-ruled the local board. We simply asked the State Board to re-evaluate its position in light of the possible effects on desegregation. The State Board is providing us with information.

    Several years ago when the desegregation plan was implemented, the majority of the white students left to go to a private school in an adjoining parish. The location of the charter school is in the neighborhood where those students live.

    4. Statewide. St. Helena is part of statewide. But all we have done statewide in ask the state board to develop a process to let us know when charter applications are pending and to ensue to the extent practical that the operation of the charter is consistent with the desegregation plan.

    5. Monroe. The local school board rejected the application. The State Board overruled. The local board sought our assistance. Conferences were held with the Court. We requested that before the court.approve the charter, there should be an evaluation of whether the charter adversely impacts desegregation in the city school system. We did not seek to close the charter-it wasn't open. A hearing followed, during which it appeared that the board and the charter folks could agree on the parameters of the operation of the charter. We supported continuing the hearing until the agreement could be worked out. The court, continued the hearing and permitted the charter to open for the time being. Nothing has happened since.

     
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62858d.eps

process of dismantling a dual system. Once the school has been established, however, it is possible that a court would not require that a Type 2 charter school be operated in ''compliance'' with the desegregation order in the absence of a statutory provision requiring such action.

ANALYSIS:

I. Introduction

    Charter schools are, for the most part, public schools that are:

 created by a contract or charter between the applicants and the chartering entity, which is typically the local school board or state educational agency;

 held accountable for achieving educational results; and

 free from state and local rules and requirements in areas such as curriculum, instruction, budgets, and personnel.

As of June 1998, thirty-three (33) states have enacted charter school legislation.(see footnote 50) The legislation varies from state to state regarding the specifics of the establishment and operation of charter schools, including the definition of a charter school, the chartering process, and the level of autonomy granted to the school.
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    The federal government has enacted several statutes that promote and provide financial assistance to charter schools. The Improving America's Schools Act includes a federal grant program that provides financial assistance for the design and initial implementation of charter schools. See 20 U.S.C. §8061 (1994). The Goals 2000: Educate America Act and the School to Work Program allow states to use federal funds to promote charter schools. See Jay P. Heubert, Schools Without Rules? Charter Schools, Federal Disability Law, and the Paradoxes of Deregulation, 32 Harv. C.R.–C.L. L. Rev. 301, 306 n. 18 (1997).

    Currently, 786 charter schools are operating in the United States, 429 are not yet operating but have been approved to open, and 34 are pending approval. See The Center for Education Reform, Charter School Highlights and Statistics (June 2, 1998) <http://edreform.com/pubs/chglance.htm>. There is concern that the establishment and operation of these independent public schools will adversely affect the desegregation efforts still underway in school districts across the country.

    Although a charter school must comply with federal civil rights laws(see footnote 51), it is not entirely clear whether it must comply with a desegregation order. There is no federal statute which specifically provides that charter schools must be established and operated in compliance with the desegregation order in effect for the district in which the charter school is located. Less than one-third of the state charter school statutes specifically address the issue of desegregation. These statutory provisions addressing desegregation vary from state to state, as illustrated below.

 Az. Rev. Stat. Ann. §15–184(D)(West Supp. 1997): ''A charter school shall admit pupils who reside in the attendance area of a school or who reside in a school district that is under a court order of desegregation or that is a party to an agreement with the United States department of education office for civil rights [sic] directed toward remediating alleged or proven racial discrimination unless notice is received from the resident school that the admission would violate the court order or agreement. If a charter school admits a pupil after notice is received that the admission would constitute such a violation, the charter school is not allowed to include in its student count the pupil wrongfully admitted.''
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 Colo. Rev. Stat. Ann. §22–30.5–104(3) (West Supp. 1997): ''A charter school shall be subject toa ny court-ordered desegregation plan in effect for the school district.''

 Del. Code. Ann. tit. 14, §506 (Supp. 1996): ''A charter school not . . . (e) Be formed to circumvent a court-ordered desegregation plan.''

 105 Ill. Comp. Stat. Ann. 5/27A–4(a) (West Supp. 1998): ''The General Assembly does not intend to alter or amend the provisions of any court-ordered desegregation plan in effect for any school district.''

 La. Rev. Stat. Ann. §17:3991(C)(West Supp. 1998): ''A charter school shall: . . . (3) Be subject to any court-ordered desegregation plan in effect for the city or parish school system.''

 Mich. Comp. Laws Ann. §380.504b (West 1997): ''If a public school academy is operated by a school district that is subject to a court desegregation order, pupil selection at the public school academy is subject to that order.''

 Nev. Rev. Stat. Ann. §386.550,385.005(2) (Michie Supp. 1997): ''A charter school shall . . . (4) Comply with any plan for desegregation ordered by a court that is in effect in the school district in which the charter school is located.'' ''The responsibility for establishing a local policy of integration or desegregation of public schools consistent with the statewide policy established by the legislature is delegated to the respective boards of trustees of local school districts and to the governing body of each charter school.''
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 N.C. Gen. Stat. §115C–238.29F(g)(5) (1997): ''The school shall be subject to any court-ordered desegregation plan in effect for the local school administrative unit.''

 Pa. Stat. Ann. tit. 24, §17–1730–A (West Supp. 1998): ''The local board of school directors of a school district which is operating under a desegregation plan approved by the Pennsylvania Human Relations Commission or a desegregation order by a Federal or State court shall not approve a charter school application if such charter school would place the school district in noncompliance with its desegregation order.''

    The United States Department of Education, Office for Civil Rights (''OCR''), has attempted to offer guidance on this issue of charter schools and desegregation. In a handout, OCR asserted that a ''charter school must be established and operated in a manner that is consistent with the OCR-approved desegregation plan or court order.''(see footnote 52) In support of its assertion, OCR explained that

the establishment of a public charter school 'in a school district may not substantially impede or retard the scope of desegregation. For example, where the school district is operating under an OCR-approved or court-ordered desegregation plan, the establishment of a public charter school must not adversely affect the racial composition of the schools from which the charter school students will be drawn, such that the school district would not be in compliance with the desegregation plan or court order.

See Office for Civil Rights, U.S. Dept. of Educ., Questions and Answers on the Application of Federal Civil Rights Laws to Public Charter Schools <http://www.uscharterschools.org/res_dir/res_primary/ocr_q&a.htm#1>.
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    This guidance, like the above statutory provisions regarding desegregation, is not entirely clear. OCR did not explain what it means for a charter school to be operated 'in a manner ''consistent with'' a desegregation order. T'he statutory provisions offer no guidance on what exactly is required of the charter school and other involved legal entities. What does it mean to ''be subject to'' a desegregation order? Does it mean the same thing as requiring a charter school to ''comply'' with a desegregation order? Does it mean the same thing as forbidding a charter school to ''circumvent'' a desegregation order? A number of disputes have arisen due to the uncertainty regarding whether a charter school must be established and operated in compliance with a desegregation order. Two such disputes that have arisen in Louisiana are explained below.

    The East Baton Rouge Parish School Board approved a contract with the Children's Charter School to establish a charter school (United Charter School) to be operated by SABIS Educational Systems Inc., a for profit corporation. The charter school began operating within the East Baton Rouge Parish school district despite the fact that it had not been approved by U.S. District Judge John Parker, who oversees the district desegregation case. This summer the parish school board approved the charter school board of directors' plan to relocate the charter school and significantly expand its student enrollment. Upon review of the charter school contract, the U.S. Department of Justice and the NAACP were dissatisfied that the charter school would comply with the desegregation order in effect for the East Baton Rouge Parish school district. The charter school board of directors has indicated that it will not be relocating the charter school to the initial new location and expanding its enrollment as originally planned. The charter school will operate this school year at an alternative site and with a will be operating without court approval. See Desegregation Case Parties Meet Discuss Monitor's Role, The Baton Rouge Advocate, June 9, 1998, available in 1998 WL 4901508; Kristen King, Charter school Still Needs Court Approval Renovations, The Baton Rouge Advocate, June 21, 1998, available in 1998 WL 4903110; Kristen King, School Plan Dispute Ends in Stalemate, The Baton Rouge Advocate, June 27, 1998, available in 1998 WL 4903622.
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    A second dispute has arisen in Monroe, Louisiana. The Louisiana State Board of Elementary and Secondary Education recently approved a contract with the New Visions Learning Center to establish a charter school in Monroe to be operated by an all-black church. On June 30, 1998, the Monroe City School Board filed a motion for a temporary restraining order in Andrews and United States v. Monroe City School Board to enjoin the establishment of the charter school. The Defendant Monroe City School Board argued that (1) the charter school must comply with the district's desegregation order, (2) it is the State Board's responsibility as the approving body to obtain court approval of the charter school, and (3) the establishment of the charter school will impede the desegregation process. See William R. Yeomans, Memorandum for the Attorney General (Weekly Report—Week of July 5, 1998), July 7, 1998. On July 9, 1998, the court held a status conference to consider the defendant's motion, and the outcome was as follows:

[T]he court persuaded defendant to withdraw its motion and required the proposed charter school to file, by August 20, 1998, information describing: projected student enrollment and faculty by race; proposed attendance area; recruitment program; and school term. The court indicated that it would set for hearing the defendant's motion for a permanent injunction shortly after August 20, 1998, to consider whether the charter school will be allowed to open.

William R. Yeomans, Memorandum for the Attorney General (Weekly Report—Week of July 19, 1998), July 21, 1998.

    In response to these disputes and in recognition of the likelihood of similar disputes in the future, this memorandum will examine Louisiana charter school law and discuss (1) whether a Louisiana charter school must be established and operated in compliance with the desegregation order in effect for the district in which the charter school is located and (2) which legal entities are responsible for ensuring that the charter school complies with the desegregation order.
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II. Louisiana Charter Schools

    The Louisiana legislature defined a ''charter school'' as an ''independent public school that provides a program of elementary or secondary education, or both, established pursuant to and in accordance with the revisions of this Chapter [Charter School Demonstration Programs Law] to provide a learning environment that will improve pupil achievement.'' La. Rev. Stat. Ann. §17:3973(2)(a) (West Supp. 1998). Louisiana law allows the following to propose a charter, provided that the group includes three (3) or more persons holding a valid and current Louisiana teaching certificate: a group of three (3) or more teachers, a group of ten (10) or more citizens, a public service organization, a business or corporation entity, a Louisiana college or university, and faculty and staff of any public school or local school board. See id. §17:3983(A)(1). The following four (4) types of charter schools may be established in Louisiana(see footnote 53)

 ''Type 1'' is a new school established pursuant to a charter between a nonprofit corporation created to operate the school and a local school board. Only those students eligible to attend a public school operated by the local school board within the same city or parish will be eligible to attend the charter school.

 ''Type 2'' is a new school established pursuant to a charter between a nonprofit corporation created to operate the school and the State Board of Elementary and Secondary Education. Students who reside within the state will be eligible to attend the charter school.
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 ''Type 3'' is a preexisting public school which is converted to a charter school pursuant to a charter between a nonprofit corporation and a local school board. The charter must be approved by faculty and staff of the preexisting school and parents or guardians of the children enrolled in the preexisting school. Only those students eligible to attend a public school operated by the local school board within the same city or parish will be eligible to attend the charter school.

 ''Type 4'' is a preexisting public school which is converted to a charter school pursuant to a charter between the local school board and the State Board of Elementary and Secondary Education. The charter must be approved by faculty and staff of the preexisting school and parents or guardians of the children enrolled in the preexisting school. Only those students eligible to attend a public school operated by the local school board within the same city or parish will be eligible to attend the charter school.

See id. §17:3973(b).

    Louisiana law provides that a charter school ''shall be subject to any court-ordered desegregation plan in effect for the city or parish school system.'' Id. §17:3991(C)(3). ''Subject to'' has been defined as:

 ''liable [to],'' ''subservient [to],'' ''inferior [to],'' ''obedient to,'' and ''be' under domination, control, or influence;'' or

 ''affected by'' and ''being dependent or conditional upon something.''
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Black's Law Dictionary 1425 (6th ed. 1990); Webster's Encyclopedic Unabridged Dictionary of the English Language 1415 (1989). The first set of definitions certainly suggests that Louisiana law requires a charter school to comply with a desegregation order. On the other hand, the second set suggests that the law requires something less than compliance. It could be argued, for example, that desegregation is merely a consideration in approving the charter school, and if there will be no substantial adverse effect on desegregation, the charter school should be allowed to operate without formally complying with the order. In order to interpret the meaning of this statutory provision, each type of charter school will be analyzed separately in the following order: (A) Type 4 charter schools; (B) Type 1 and 3 charter schools; and (C) Type 2 charter schools.

A. A Type 4 Charter School Should Be Required to be Established and Operated in Compliance with the Desegregation Order in Effect for the District in Which the Charter School is Located.

    A ''Type 4'' charter school is a preexisting public school which is converted to a charter school pursuant to a charter between the local school board and the State Board of Elementary and Secondary Education. The establishment of a Type 4 charter school by a local school board is similar to the creation of a magnet school in that:

 A preexisting public school is converted to a ''special'' school offering innovative schooling.

 The local school board retains the responsibility to operate and manage the charter school.
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 The student body for the charter school is drawn from only those students eligible to attend public schools operated by the local school board. See La. Rev. Stat. Ann. §17:3973(2)(b)(iv).

 The charter school employees are in all respects employees of the local school board entering into the charter. See id. §17:3997(E).

 Unlike magnet schools, however, desegregation is not a primary objective for the establishment of charter schools.

    As stated above, Louisiana law provides that a charter school shall be subject to any court-ordered desegregation plan in effect for the city or parish school system in which the charter school is located. See id. §17:3991(C)(3). In light of the following, this statutory provision should be interpreted as requiring a Type 4 charter school to be established and operated in compliance with the desegregation order.

    1. The local school board should be responsible for ensuring that a Type 4 charter school complies with the desegregation order. Type 4 charter schools are unique in that the charter school applicant (the local school board) is already legally bound to the desegregation order. The local school board is under a continuing affirmative duty to take whatever steps may be necessary to convert the dual system to a unitary system. See Green v. County Sch. Bd., 391 U.S. 430, 437 (1968). It may not take any action which would impede the process of dismantling the dual system. See Wright v. Council of Emporia, 407 U.S. 451, 460 (1972).
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    By establishing a Type 4 charter school (which it will operate and retain under its direct control), the local board is essentially implementing a student choice plan or converting a preexisting school into a new special school. As a result, the local board should be required to obtain approval from the supervising district court before establishing the charter school. In Dayton Bd. of Educ. v. Brinkman, 443 U.S. 526, 538 (1979), the Court held that:

[t]he Board has an affirmative responsibility to see that pupil assignment and school construction and abandonment practices 'are not used and do not serve to perpetuate or re-establish the dual school system,' and the Board has a 'heavy burden' of showing that actions that increased or continued the effects of the dual system serve important and legitimate ends.

The local board must be held responsible for ensuring that the charter school is established and operated in compliance with the desegregation order. Creating a special public school free from state and local rules and regulations should not exempt the local board from their desegregation obligations.

    2. There is an argument that the State Board should also be responsible for ensuring that a Type 4 charter school complies with the desegregation order. One can make the argument that the State Board of Elementary and Secondary Education is also responsible for ensuring that a Type 4 charter school is established and operated in compliance with a desegregation order, even if the State Board did not engage in segregative conduct. The State Board is an active participant in the establishment and operation of Type 4 charter schools.

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    In order to establish a Type 4 charter school, the local school board must submit a proposal to the State Board of Elementary and Secondary Education. See La. Rev. Stat. Ann. §17:3983(A)(2)(b). As the chartering authority, the State Board is responsible for making a specific determination that the proposed school will ''be operated in compliance with all applicable state and federal laws, rules, and regulations . . . and that the educational program to be offered will comply with all requirements of this Chapter [Charter School Demonstration Programs Law] . . .'' before approving the charter. Id. §17:3983(A)(3)(c). In making this determination, the State Board must take into consideration that:

(1) the charter school applicant (the local school, board) is already legally bound to the desegregation order; and

(2) the charter school is ''subject to any court-ordered desegregation plan in effect for the city or parish school system.''

Id. §17:3991 (C)(3)). The State Board's approval implies that the Type 4 charter school will be established and operated in compliance with an applicable desegregation order.

    After the approval / establishment stage, the State Board continues to participate in the operation of a Type 4 charter school. As the chartering authority, the State Board monitors operation and has the ultimate power of renewing or revoking the charter. See id. §§17:3991 (B)(19); 17:3992. Additionally, federal and state funding for Type 4 charter schools is funneled through the State Board. See 20 U.S.C. §8064(f) (federal grant funds for the design and implementation of charter schools); La. Rev. Stat. Ann. §17:3 995 (Type 4 charter schools are considered an approved school of the local school board and are eligible for any federal, state, or local funding for which the school or its pupils qualify).
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B. A Type 1 or 3 Charter School Should Be Required to be Established and Operated in Compliance with the Desegregation Order in Effect for the District in Which the Charter School is Located.

    A ''Type 1'' charter school is a new school established pursuant to a charter between a nonprofit corporation created to operate the school and a local school board. A ''Type 3 '' charter school is a preexisting public school which is converted to a charter school pursuant to a charter between a nonprofit corporation and a local school board. See id. §17:3 973 (2)(b). These charter schools differ from Type 4 charter schools in that a nonprofit corporation, rather than the local school board, operates and manages the school.

    The provision in the Louisiana charter school statute regarding desegregation makes no distinction between types of charter schools. It simply states that: ''A charter school shall be subject to any court ordered desegregation plan in effect for the city or parish school system. Id. §17:3991(C)(3). As discussed previously, it seems clear that a Type 4 charter school must be established and operated in compliance with an applicable desegregation order. After a similar, but more complicated, analysis, it appears that Type 1 and 3 charter schools should also be required to be established and operated in compliance with a desegregation order.

    Despite the statutory provision subjecting charter schools to desegregation orders, it is likely that a charter school will argue that it cannot be required to comply with the desegregation order in effect for the district in which it is located because (a) it is a separate legal entity distinct from the local school district and board; and (b) the charter school itself has not engaged in racial discrimination and, therefore, should not be responsible for desegregation in the district. However, it seems that these arguments will not prevail.
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    Type 1 and 3 charter schools remain a component of the traditional school district in which they are located, even though they operate with limited independence from the local board. Those who operate the charter school are organized as a nonprofit corporation. They are not, however, granted status as a separate public legal entity distinct from the local school district and board, such as an independent local educational agency or an independent school district or subdistrict.

The term ''local educational agency'' means a public board of education or any other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for, public elementary or secondary schools 'in a city, county, township, school district, or other political subdivision of a State, or for such combination of school districts or counties as are recognized in a State as an administrative agency for its public elementary or secondary schools. The term includes any other public institution or agency having administrative control and direction of a public elementary or secondary school. . . .

20 U.S.C. §8801(18). Type 1, 2. and 3 charter schools must be organized as nonprofit corporations. See La. Rev. Stat. Ann. §17:3 991 (A)(1)(a). According to this definition, Louisiana charter schools may not be considered local educational agencies as thev are not public or goveniment entities.

    An argument could be made that a charter school is located within its own special school district or subdistrict. This argument, however, is not consistent with Louisiana law. The Louisiana Constitution, Article 8, §9(A) provides that the legislature shall create parish school boards. These boards are given the power to create school districts, and ''every school district so created shall be a political subdivision of the state and may issue bonds and vote special taxes. . . .'' La. Rev. Stat. Ann. §17:1371(A); 17:1371(C). The Supreme Court of Louisiana has held that the ''reason for the existence of a school district as a political entity is that its governing authority may levy special taxes for the benefit of the public schools within its limits.'' See Gauthier v. Parish Sch. Bd. of Parish of Avoyelles, 165 La. 256, 262 (1928). A charter school, therefore, is not located within its own school district or subdistrict because: (1) it is not a political subdivision of the state as it is organized as a non-profit corporation; and (2) it does not have the power to issue bonds or levy taxes. There are additional barriers to considering a charter school to be located within its own school district or sub-district. Louisiana law generally prohibits parish school boards from creating a new school district if ''such new school district embraces part of any school districts already existing'' within the parish. See La. Rev. Stat. Ann. §17:1371(A). The creation of school sub-districts are prohibited except in a special case not applicable to charter schools. See id. §17:1372.
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    In light of the preceding discussion, the best interpretation of the Louisiana charter school statute seems to be that a Type 1 or Type 3 charter school is a component of the traditional school system in which it is located and is under the ultimate control of the local school board. Pursuant to a contract with the local school board, a nonprofit corporation is granted the limited power to operate and manage the charter school. The following statutory provisions additional support for this conclusion.

 ''It is the intention of the legislature in enacting this Chapter [Charter School Demonstration Programs Law] to authorize the experimentation by city and parish school boards by authorizing the creation of innovative kinds of independent public schools.(see footnote 54) Further, it is the intention of the legislature to provide a framework for such experimentation by the creation of such schools, a means for all persons with valid ideas and motivation to participate in the experiment, . . .'' Id. §17:3972(A). A nonprofit corporation may ''participate'' in a charter school experiment under the ultimate control of the local school board.

 The local school board has paramount control over the charter school's existence since it has the power to approve, renew, amend, and revoke the charter. See id. §17:3983(A)(4)(a)(ii); 3992.

 Charter schools are ''operated as the result of and pursuant to a charter between the nonprofit corporation created to operate the school and a local school board.'' Id. §17–3973(2)(b). ''[A] charter school and its officers and employees may exercise any power and perform any function necessary, requisite, or proper for the management of the charter school not denied by its charter, the provisions of this Chapter, or other laws applicable to the charter school.'' Id. §17:3991(A)(2). ''Except for a type 4 charter school a local school board shall not . . . interfere in any way with the operation and management of a charter school except as provided by the approved charter, the provisions of this Chapter, or other law applicable to the charter school or its officers or employees. Id. §17:3991(F). Nonprofit corporations are granted limited power to operate the charter school, but are not granted distinct legal status as a public entity.
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 Statutory attendance requirements are similar to those of a magnet school under the local school board's control. Type 1 and 3 charter schools may only enroll those ''pupils who would be eligible to attend a public school operated by the local school board within the same city or parish . . . as provided in the charter.'' Id. §17:3973(2)(b). ''Any pupil enrolled in a charter school who decides not to attend such charter school shall be permitted by the local school board to attend the public school that the pupil would otherwise attend if not enrolled at the charter school.'' Id. §17:3991(G).

 The charter school must provide a report to the local school board at the end of each semester detailing its progress in meeting performance goals. See id. §17:3991(B)(9); 17:3998(A)(2).

 The local board has the right to visit and inspect the charter school in order to fulfill its monitoring duty as the chartering authority. See id. §17:3991(B)(19).

 ''For the purposes of funding, a type 1 [and a] type 3 school . . . shall be considered an approved public school of the local school board entering into the charter and receive funding from the local school board whose jurisdiction it is located. Id. §3995(A)(1). ''If any charter school fails to open and serve pupils, all money allocated for such school shall be refunded to the state or to the local school district as appropriate.'' Id. §3995(E).

The local school board is required to accommodate certain employment decisions regarding the charter school. For example, the local school board is required to grant leave of absence to any employee in its system requesting such leave in order to be employed in a charter school.
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    A second argument likely to be raised by a charter school in order to avoid a desegregation order is that the charter school itself has not engaged in discrimination and assisted in the creation of a dual system, and, therefore, should not be responsible for desegregation. A similar argument has been made in opposition to a South Carolina charter school provision providing for racial quotas. The South Carolina charter school statute provides: ''under no circumstances may a charter school enrollment differ from the racial composition of the school district by more than ten percent (10%).'' See S.C. Code Ann. 59–40–50(B)(6) (Law. Co-op. Supp. 1997). In a formal opinion, the Attorney General of South Carolina concluded that the racial quota provision is

unconstitutional under Croson. Clearly, there has been no demonstration of, or even a specific allegation of any past discrimination with respect to the charter school program. Nor could there be. In view of the fact that charter schools are just now beginning to be organized in this State, there is little or no history at all. This law is thus written on a clean slate. See, Knight . . . [''the State of Alabama can have no compelling interest in remedying past discrimination which did not occur.''] And even if there had been past discrimination in the particular school district where a charter school is organized, such is irrelevant for the purpose of any constitutional need for mandating a rigid quota in the charter school law. Hopwood and other cases teach that there must be documentation of past discrimination by the particular entity or agency where the quota is being applied. See also, Croson; Knight. Again, by definition, no discrimination in admission could have occurred in a program just barely off the ground.

Charles M. Condon, Charter Schools Act of 1996, Racial Quotas, Constitutionality Under Equal Protection, Discrimination Issues, Op. S.C. Att'y Gen. (April 7, 1997) <http://www.scattomevgeneral.co . . . A885256525007OE33A?OpenDocument>.
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    If a new traditional public school is opened by the local board, that particular school would be subject to the desegregation order. If a magnet school (a new school or a preexisting school converted into a magnet) is created by the local board, that school would also be subject to the desegregation order. It seems logical that if a [Type 1 or Type 3] charter school is approved by the local board, that particular school would likewise be subject to the desegregation order. In all three cases, there may have been no proven discrimination in the new school itself. The overriding consideration, however, must be that each of the schools is a component of the traditional school system in which it is located and under the ultimate control of the school board.

    1. The local school board should be responsible for ensuring that a Type 1 or 3 charter school complies with the desegregation order. The responsibility for ensuring that the charter school complies with the desegregation order seems to fall predominantly on the local school board due to its status as the chartering authority and its obligations to desegregate the district. A proposal to establish a new charter school or to convert a preexisting public school to a charter school must be made to the local school board where the charter school is to be located. See La. Rev. Stat. Ann. §17:3983 (A)(2)(a)(1). In order to approve the charter, the local school board must determine that the proposed charter ''complies with the law and rules, is valid, complete, financially well-structured, and educationally sound, and . . . offers potential for fulfilling the purposes of this Chapter [Charter School Demonstration Programs Law].'' Id. §17:3992. In making this determination, the local school board must consider the statutory provision providing that charter schools shall be subject any court-ordered desegregation plan in effect for the city or parish school system. Id. §17:3991(C)(3).
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    The local board must also consider its own legal obligation to the desegregation order. The local board must take any steps necessary to ensure that the establishment and operation of the charter school will not adversely affect their desegregation efforts. These steps may include requiring the applicant to affirmatively show that the charter school will not impede desegregation, placing a condition on the charter school that specific admission requirements be established so as not to impede desegregation, or collaborating with the charter school to come up with a workable desegregation plan. Presumably, the local board should obtain court approval of the charter school since the establishment of a charter school is virtually the same as opening a new public school. If the local board is unable to ensure that the establishment and operation of a Type 1 or 3 charter school will not adversely affect desegregation efforts, it should not approve the charter. Otherwise, by approving the charter, the local board may be held liable for taking an action which impeded the process of dismantling a dual system.

    2. There is an argument that the State Board should also be responsible for ensuring that a Type 1 or 3 charter school complies with the desegregation order. It appears that the State Board has only attenuated responsibility for ensuring that a Type 1 or 3 charter school complies with a desegregation order. The State Board has very little oversight over the approval process. After approving a charter, the local school board must report said charter to the State Board. It appears that the purpose of this reporting requirement is to enable the State Board to ensure that the statutory limit on charter schools is not exceeded. See id. §17:3983(A)(4) (providing the maximum number of charters allowed and reporting requirement). The State Board does not have the power to reverse the local board's approval based on the substance of the charter. The State Board has little or no power over the operation of the charter school as it lacks the power to renew, amend, or revoke a charter approved by a local school board. See id. §17:3992.
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    An argument may be made that the State Board has supervisory responsibilities over all public schools, including charter schools. However, Article 8, Section 3 of the Louisiana Constitution provides that State Board of Elementary and Secondary Education ''shall supervise and control the public and secondary schools, . . . but shall have no control over the business affairs of a parish or city school board. . . .'' A federal district court in Louisiana has held that desegregation of schools is considered a business affair of a parish or city school board not subject to the supervision or control of the State Board. See Lemon v. Bossier Parish Sch. Bd., 240 F. Supp. 743, 744 (W.D. La. 1965).

    It is possible that a Louisiana state educational agency may exercise control over the charter as a source of funding. Federal grant funds for the design and implementation of a charter school may be funneled through a state educational agency to a chartering authority. See 20 U.S.C. §8064(f). Title I funds are provided through state educational agencies to the charter school or the local school district, depending on whether the charter school is considered to be a separate local educational agency or public school with a local educational agency. See Office of Elementary and Secondary Educ., U.S. Dept. of Educ., Allocations to Public Charter Schools under Title I, Part A of the Elementary and Secondary Education Act (Nonregulatory Guidance) (March 1998) <http://inet.ed.gov/legislation/ESEA/Title—I/charter.html>. Monies are appropriated to the State Board to provide no-interest loans to assist new Type 1 charter schools with initial start-up funding. See La. Rev. Stat. Ann. §4001 (providing for the Louisiana Charter Start-Up Loan Fund).

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C. The State Board Should Be Responsible For Ensuring That the Establishment of a Type 2 Charter School Does Not Adversely Affect the Dismantling of a Dual System.

    An applicant desiring to open a new school (Type 1) or convert a preexisting school to a charter school (Type 3) must first submit a proposal to the local school board with jurisdiction where the school is to be located. If the local school board denies the proposal or places unacceptable conditions on the proposal(see footnote 55), the applicant may then submit a proposal for a Type 2 charter school(see footnote 56) to the State Board.(see footnote 57) See id. §17:3983(A)(2)(a)(i). Before approving the proposal, the State Board must determine that ''the proposed school will be operated in compliance with all applicable state and federal laws, rules, and regulations, . . . and that the educational program to be offered will comply with all requirements of this Chapter [Charter School Demonstration Programs Law]. See id. §17:3984(A)(3)(c). In making this determination, the State Board must consider the statutory provision that provides a charter school shall be subject to any court-ordered desegregation plan in effect for the city or parish school system. See id. §17:3991(C)(3).

    At the very least, the State Board has the affirmative responsibility to see that the establishment of a Type 2 charter school will not adversely affect the dismantling of a dual system. See United States v. Scotland Neck City Bd. of Educ., 407 U.S. 484, 489 (1972) (holding that any attempt by state officials to carve out a new school district from an existing district [which is similar to the establishment of a charter school] that is in the process of dismantling a dual system must be judged according to whether it hinders or furthers the process of desegregation). Therefore, before approving a proposal, the State Board must consider the effect the charter school may have on the district in which it is located, including possible:
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 Change in the Racial Composition of the District's Schools. Even though a Type 2 charter school may enroll any student who resides in the State of Louisiana, it is expected that a significant percentage of the student body will be comprised of students residing near the school (presumably the same students eligible to attend a public school operated by the local school board). The State Board must consider whether the charter school will substantially affect the racial composition of the district's schools.

 Loss of Financial Support to the District. The charter school receives funding in an amount ''equaling the combined state and local target amount which is funded for the district in which the charter school is located,'' as well as any other federal, state, or local funding for which the school or its students qualify. La. Rev. Stat. Ann. §17:3995. Therefore, it is likely that the charter school will have a negative impact on the district's receipt of financial support.

 Loss of District Employees. The charter school law accommodates teachers and school employees who wish to leave the local school district to be employed by a charter school. ''A local school board shall grant a leave of absence, not to exceed three years, to any employee in its school system requesting such leave in order to be employed in a charter school.'' The local school board shall then permit the employee to return to his or her former teaching position or to a comparable position even if such return necessitates a reduction in force by the local school board. See id. §17:3997(B) (providing for additional accommodations with regard to permanent status, public retirement and salary status, and group insurance programs). The State Board must consider whether the charter school will draw a significant number of teachers and school employees from the school district.
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All of the factors above may impede the process of desegregation such that the local school district would not be in compliance with the desegregation order. As a matter of necessity and in order to avoid liability, the State Board should obtain approval of the charter school by the judge supervising the district's desegregation case.

    Once a Type 2 charter school has been court-approved and established, it may not be required to operate in formal compliance with the desegregation order in the absence of a statutory provision requiring such action. A Type 2 charter school is in no way under the control of the local school board obligated to the desegregation order. If there has been no discriminatory conduct on the part of the chartering authority (State Board) or the charter school itself, it is difficult to argue that the charter school must comply with the desegregation order in effect for the district in which it is physically located, unless some sort of ''inter-district'' remedy is ordered by the court.

CONCLUSION:

    Louisiana law provides that a charter school shall be subject to any court-ordered desegregation plan in effect for the city or parish system. Even in the absence of this statutory provision, there is a strong argument that a ''Type 4'' charter school, a preexisting public school converted to a charter school pursuant to a charter between a local school board and the State Board of Elementary and Secondary Education (''State Board ''), must be established and operated in compliance with the desegregation order in effect for the district in which the charter school is located. This argument stems on the fact that the charter school applicant (the school board) already has a specific obligation under the desegregation order. The local board should not be permitted to avoid its duty by establishing a special school in the district free from the desegregation order. The responsibility of ensuring compliance by a Type 4 charter school seems to fall predominantly on the local school board, although an argument may be made that the State Board is also responsible for ensuring compliance.
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    There is also an argument that a ''Type 1'' or ''Type 3 '' charter school, either a new school or a converted preexisting public school established pursuant to a charter between a nonprofit corporation created to operate the school and a local school board, must be established and operated in compliance with a desegregation order in effect for the district in which the charter school is located. As a component of the traditional school district in which they are located, these charter schools must comply with a desegregation just as traditional and magnet schools in the district, even though they are operated by a nonprofit corporation rather than a local school board. Once again its appears that the local school board has the ultimate responsibility to ensure compliance with the desegregation order while the State Board has attenuated responsibility.

    Difficulties arise, however, with the establishment and operation of a ''Type 2'' charter school, a new school established pursuant to a charter between a nonprofit corporation created to operate the school and the State Board. The State should be responsible for ensuring that the establishment of a Type 2 charter school does not impede the desegregation process underway in the district in which the charter school is located. It is expected that a court would not allow the charter school to be established where the effect would be to impede the process of dismantling a dual system. Once the school has been established, however, it is possible that a court would not require that a Type 2 charter school be operated in ''compliance'' with the desegregation order in the absence of a statutory provision requiring such action.

     

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CHARTER SCHOOLS: CIVIL RIGHTS AND CONSTITUTIONAL IMPLICATIONS OF THE FEDERAL AND STATE LEGISLATION

SHERRI NORTH & RICHARD GREENE

I. BACKGROUND

    The fundamental theory behind the creation of charter schools was, ''to not simply develop a few new schools, but to create dynamics that will cause changes within the entire system.'' See Louann A. Bierlein & Lon Al Mulholland, Comparing Charter School Laws: The Issues of Autonomy, Policy Brief (Sept. 1994).

    In the quest for reform in public education, parents and educators are looking into charter institutes as a means of providing ''safe competition'' to public schools. See Dept. Educ, A Study of Charter Schools: A First Year Report May 1997 (last visited Jan. 28, 1998) http//www.ed.gov/pubs/charter/chap1.html. The charter school movement has grown considerably within the past twelve years; there are now nearly 500 charter schools nationwide. See id. Twenty-eight states1 and the District of Colombia have now enacted charter legislation, and a handful more of states2 have proposals on their dockets.

A. What is a Charter School?

    A charter school is an independent public school that is given autonomy from the restrictions and regulations of traditional bureaucracies. The ''charter'' aspect of the school is the contract between its sponsors and the local governing school board. The ''basic bargain'' between the sponsors and the public school board is an ''autonomy for accountability'' agreement. See US Charter Schools, Overview of Charter Schools (last visited Jan. 20, 1998) http:// www. uscharterschools. org/gen_info/gi_main.htm. Despite decreased regulation of the curriculum, budget, and personnel, charter school sponsors are still held accountable for the performance of their students. See id. If the school's students fall below a certain standard established in the charter, or if the school grossly mishandles its finances, then the State may revoke the school's charter. See id.
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    The criteria for sponsoring charter schools varies from state to state. In most states, any person or entity can apply to start a charter school. Usually, the application must then be approved by a local governing body which ''sponsors'' the school and allows them to receive students.

B. Charter Schools v. Public Schools

    Charter schools in many ways resemble private schools. Charter schools are exempt from most regulations that effect public schools and they control their budget, teachers, staff, and curriculum. They also must attract a sufficient number of students. If a charter school does not enroll a reasonable amount of students, expenses alone can jeopardize its existence. See US Charter Schools, Overview of Charter Schools (last visited Jan. 20, 1998) http://www.uscharterschools.org/gen_info/gi_main.htm.

    Nonetheless, charter schools are largely presumed to be public schools. They are funded by state dollars and are not totally independent from state school, health, and civil rights regulations. As with a public school, a charter school cannot charge students' tuition for enrollment. Nor can charter schools favor a certain religion, or ethnic group. In some states, a state or local governing board oversees the actions of a charter school to ensure that all applicable state and federal laws are followed.

C. Charter School's Autonomy

    A charter school's autonomy varies from state to state, depending on state legislation. Generally, states define the legal status of charter schools, using one of three characterizations. First, some charter schools are characterized as non-profit organizations. See Fla. Stat. Ann. sec. 228.056(7) (West 1989 & Supp. 1998). As a nonprofit organization, charter schools have a ''blank check,'' in regard to their state and federal legal obligations. Second, other states, require charter schools to be legally responsible to the respective school district. Under the district's authority, autonomy from regulation is not granted in such a broad sweeping manner. Instead, the school must petition for exemptions from district rules line by line, or using a rule-by-rule exemption policy. Third, others states treat charter schools as a legal extension of the traditional public school system. See Charter Schools: New Model for Public Schools Provides Opportunity and Challenges, GAO Reports 15 (Jan. 1995). Based on the public school model, charter schools must be issued explicit waivers in order be exempted from certain regulations. See id. at 17.
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II. FEDERAL LAW

A. Federal Statutes

    In 1997, Congress adopted the Charter Schools Amendment Act to strengthen and improve public elementary and secondary schools. See 20 U.S.C. sec. 8061–8067 (1997); see generally H.R. Rep. No. 105–321 (1997). The Act's threefold purposes were: to provide start-up financial assistance for planning, designing, and initial implementation of schools, to help local and State efforts to establish 3000 charter schools by the year 2000, and to evaluate the effects of such schools on students, teachers, and parents. See 20 U.S.C. sec. 8061(b)(1)–(2); H.R. Rep. No. 105–321, at 7 (1997). The Charter Schools Act reflects President Clinton's rapid increase in funding for charter schools, from $6 million in 1995 to $100 million in 1998. See H.R. Rep. No. 105–321, at 8 (1997) (noting the 96% increase in federal funding for the federal charter schools programs over 1997).

    A charter school is defined as a public school that—

  (A) in accordance with an enabling State statue is exempted from significant State or local rules that inhibit the flexible operation and management of public schools;

  (B) is created by a developer as a public school, or is adapted by a developer from an existing public school, and is operated under public supervision and direction;

  (C) operates in pursuit of a specific set of educational objectives determined by the school's developer and agreed to by the authorized public chartering agency;
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  (D) provides a program of elementary or secondary education, or both;

  (E) is nonsectarian in its programs, admissions policies, employment practices, and all other operations, and is not affiliated with a sectarian school or religious institution

  (F) does not charge tuition;

  (G) complies with the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, and part B of the Individuals with Disabilities Education Act;

  (H) admits students on the basis of a lottery, if more students apply for admissions than can be accommodated;

  (I) agrees to comply with the same Federal and State audit requirements as do other elementary and secondary schools in the State, unless . . . specifically waived;

  (K) operates in accordance with State law.

See 20 U.S.C.A. sec. 8066 (1) (A)–(K).

    The Charter School Act of 1997 does not address the constitutionality of charter schools. As an outgrowth from public schools, the constitutionality of charter schools was probably assumed by Congress without debate. But Congressman Ron Paul's dissenting view, however, suggests that the Act violates the Tenth Amendment and is an unconstitutional infringement upon the authority of the States and local government to control education. See H.R. Rep. No. 105–321, at 49–50 (1997).
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    The Charter School Act does address civil rights statues. In Section 8066(1)(G), Congress expressly requires that charter schools comply with all federal civil rights statutes. See 20 U.S.C. sec. 8066(1)(G). Further, the House Report mandated that charter schools adhere to federal education and civil rights statutes. See H.R. Rep. No. 105–321, at 7 (1997).

B. Federal Case Law

    Because charter schools are a relatively recent development, there are few charter school cases. Moreover, the few public charter school cases that do exist do not discuss in depth charter school's constitutional implications or civil rights violations. The leading federal charter school case is Villanueva v. Carere, 85 F.3d 481 (10th Cir. 1996).

    In Villanueva, Hispanic parents, challenged the school district's decision to close their neighborhood's elementary school in order to open a new charter school. See Villanueva, 85 F.3d at 481. The Tenth Circuit affirmed the decision to dismiss the case because plaintiffs failed to show intentional discrimination or disparate impact, as required under Title VI and the Equal Protection Clause. Id. at 484–487.

    The Villanueva court considered whether the Colorado Charter Schools Act violated the Fourteenth Amendment. Id. at 487. The Act reserved charter applications ''designed to increase the educational opportunities of at-risk pupils,'' defining ''at-risk'' as students who ''because of physical, emotional, socioeconomic, or cultural factors are less likely to succeed in a conventional educational environment.'' Id. at 488. Despite the use of the word ''culture'' to define ''at-risk pupils,'' which alludes to ethnic minorities, the Villanueva court held that ''at-risk pupils'' was not a suspect class. Id. at 488. The Villanueva court deemed the Charter Schools Act rationally related to the State's purpose of creating innovative, flexible educational opportunities for all children within the public school system.
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    In Keyes v. School District No. 1, 119 F.3d 1437, 1442 (10th Cir. 1997), where the school board's unitary status was at issue, the Tenth Circuit affirmed the District Court's decision to dismiss plaintiff's claim concerning the validity of Colorado's Charter School Act under the Fourteenth Amendment. The Keyes court determined that the charter school issue was not ripe and refused to issue an advisory opinions. Id.

    The federal regulation of civil rights in charter schools has, however, been addressed by the academic community. See Jay Heubert, Schools Without Rules? Charter Schools, Federal Disability Law, and the Paradoxes of Deregulation, 32 Harv. C.R.–C.L. L. Rev. 301 (1997). Heubert suggested that public charter schools are subject to the rules and procedures of federal disability law, more strictly than other public schools. See id. at 302. Moreover, Heubert predicts grave consequences, if charter schools are not held accountable for anti-discrimination laws against students with disabilities.

    In addition, another scholar addressed the issue of whether charter schools are ''public.'' See, Karla Turkian, Traversing the Minefields of Education Reform: The Legality of Charter Schools, 29 Conn. L. Rev. 1365 (1997). Turkian suggested that the legality of charter schools hinged on whether their status as ''public'' schools was justified. See id. at 1370. Without the guidance of judicial decisions, Turkian recognized the difficulty of predicting the legality of charter schools, based on the complexity of identifying the crucial elements of public schools.     See id.

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C. Department of Education, Office of Civil Rights

    The Office of Civil Rights for the United States Department of Education has anticipated potential litigation and problems concerning civil rights challenges against charter schools. In November 1997, it prepared a draft of questions and answers, in order to assist public charter schools in meeting their obligations under federal civil rights laws. See Questions and Answers: Application of Federal Civil Rights Laws to Public Charter Schools, OCR Dept. Edu. (Nov. 1997). This document describes enforcing Title VI of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, Section 504 of the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975, in regard to charter schools. See id. at 5.

    In summarizing key requirements, the OCR stressed that the entity responsible for the operation of the charter school is also responsible for ensuring its compliance with civil rights laws. A public charter school established in a district under a desegregation plan must operate in accordance with the order, and may not impede this process. See id. OCR notes that charter schools cannot discriminate against students on the basis of race, sex, or their disabilities for purposes of admission or recruitment. See id. at 7. In recruitment efforts, charter schools must accommodate student's parents who are not proficient in English or have disabilities. See id. at 7. Moreover, charter schools must take steps to rectify language deficiencies for limited English proficient (LEP) students. See id. at 10. Finally, OCR points out that charter school are responsible for accessibility requirements for persons with disabilities, as in other public schools. See id. at 11.

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    In addition to OCR's pamphlet, the Department of Education investigated, monitored, and wrote two case letters concerning civil rights infringement in charter schools. OCR evaluated the respective charter school's actions under the relevant federal civil rights laws.

    In Boston Renaissance Charter School, complainants alleged that the school discriminated against a minority, African American student because she was transferred to another class at the teacher's request. See Boston Renaissance Charter School case letter (complaint No. 01–97–1096). Based on the School's legitimate, non-pretextual reasons for transferring the minority student, OCR found that Title VI had not been violated. OCR, however, agreed with another student's claim, in Boston Renaissance Charter School, that he was discriminated against because of his disabilities under Section 504. This legal conclusion was based on the school's failure to inform parents of their rights under Section 504, failure to provide a special educational consultant, and failure to notify parents of its non-discriminatory policy. The Renaissance School agreed to remedy the latter situation by accepting OCR's resolution, requiring them to pay money damages to the plaintiff, and have their disability policy approved and submit annual status reports to the Department of Education.

    In Sonoma Valley Unified School District, OCR was concerned about the District's compliance with Title VI discrimination against Hispanic students, including LEP students, with respect to enrollment and admission policies at the charter school. See Sonoma Valley Unified School District (complaint No. 09–95–1134–I). In a highly populated Hispanic neighborhood, OCR found that the Sonoma Charter School significantly under-represented Hispanics in the applicant pool. The school's recruitment or outreach efforts toward the Hispanic community were inadequate. For instance, informational materials were not translated into Spanish until after the admission lottery process. Moreover, the initial $500 contribution, and the lack of transportation, and the lack of low cost lunch programs may have deterred Hispanic families. Based on these Title VI concerns, the School District agreed to work cooperatively with OCR and follow their resolution plan.
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III. STATE LAW

A. State Charter School Statutes

    As of February 1998, twenty-eight States have passed charter school statutes, regulating the creation, maintenance, and funding of charter school. These states include: Alaska, Arizona, Arkansas, California, Colorado, Connecticut, Delaware, District of Columbia, Florida, Georgia, Hawaii, Illinois, Kansas, Louisiana, Massachusetts, Michigan, Minnesota, Mississippi, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Pennsylvania, Rhode Island, South Carolina, Texas, Wisconsin, Wyoming. See Alaska Stat. sec. 14.03.250–290 (Michie 1996); Ariz. Rev. Stat. sec. 15–181–189.02 (West Supp. 1997); Alaska Stat. sec. 14.03.250–290 (Michie 1996); Cal. Educ. Code. sec. 47600–47615 (West 1993 & Supp. 1998); Colo. Rev. Stat. sec. 22–30.5–101–114. 22–30.5–201–209 (1994 & Supp. 1995); Conn. Gen. Stat. sec. 10–66aa–gg (Supp. 1997); Del. Code. Ann. tit. 14 sec. 501–516 (1993 & Supp. 1996); D.C. Code Ann. sec. 31–2801–2853–91 (1981 & Supp. 1997); Del. Code. Ann. tit. 14 sec. 501–516 (1993 & Supp. 1996); Fla. Stat. Ann. sec. 228.056–057 (West 1989 & Supp. 1998); Ga. Code. Ann. sec. 20–2–255 (1996); 105 Ill. Comp. Stat. Ann. 5/27/A–1–13 (West Supp. 1997); Kan. Stat. Ann. sec. 72–1903–1910 (Supp. 1996); La. Rev. Stat. Ann. sec. 3971–4001 (West 1982 & Supp. 1998); Mass. Gen Laws Ann. ch. 71 sec. 89 (West Supp. 1997); Mich. Comp. Laws Ann. sec. 380.501–515 (West Supp. 1997) (identifying public school academies); Minn. Stat. Ann. sec. 120.064 (West 19xx & Supp. 1996)(identifying result oriented schools); Miss. Code. Ann. sec. 37–28–1–21 (1972); Nev. Rev. Stat. Ann. sec. 386.500–655 (Michie 1996 & Supp. 1997) N.H. Rev. Stat. Ann. sec. 194–B:1–B:22 (Supp. 1997); N.J. Stat. Ann. sec. 18A:36A–1–18 (West Supp. 1997); N.M. Stat. Ann. sec. 222–8A–1–7 (Michie Supp. 1993); N.C. Gen. Stat. sec. 115C–238.29B–30 (Supp. 1997); S.C. Code. Ann. sec. 59–40–20–190 (Law Co-op. 1976 & Supp. 1997); Tex. Educ. Code Ann. sec. 12.001–118 (West Supp. 1996); Wis. Stat. Ann. sec. 118.40 (West 1995); Wyo. Stat. Ann. sec. 21–3–201–207 (Michie Supp. 1997).
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    The structural components of charter school statues, from States where the Civil Rights Educational Opportunities Division primarily litigates, 3 are briefly summarized. Requirements pertaining to the sponsorship, operation, and pupil enrollment of charter schools vary widely from state to state.

1. Florida

    Florida's charter school statute permits charter schools to be formed as new start-up schools or by the process of converting existing public schools. See Fla. Stat. Ann. sec. 228.056(1). Parochial, private, and home-based schools are not eligible for charter status. See id. at 228.056(3). In order to convert a school from public to charter status, at least 50 percent of parents and teachers at the school must approve the proposal. See id.

    In Florida, the local school board predominantly sponsors charter schools. See id. at 228.056(4). Denied claims may be appealed to the State Board of Education, following the appropriate procedure. See id. at 228.056(4)(a). Florida state universities may also grant charters, but only for limited developmental research purposes. See id. at 228.056(4)(e).

2. Georgia

    In Georgia, only existing public schools may apply for charter school status. See Ga. Code Ann. sec. 20–2–255(a)(4) (Supp. 1996). In order to convert to charter status, a majority of parents and teachers must approve of the proposal before being submitted to the state and local boards of education. See id. at 20–2–255 (a), (c)(2)–(3). Georgia gives ''preferences'' to its charter schools though the state board's allotment of grant funds, used to improve local school performance. See id. at 20–2–255 (i).
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3. Louisiana

    In Louisiana, charter schools may originate from either converted public schools or as new start-up schools. See La. Rev. Stat. Ann. sec. 3971–4001 (West 1982 & Supp. 1998). There are four major types of authorized charter schools.

    Type One is a new school that is sponsored by a local school board, in which enrollment is derived only from students within the city or parish who are eligible to attend a local public school. See id. at 3973 (2)(a)(i).

    Type Two is a new school sponsored by the State Board of Education and a nonprofit corporation, in which enrollment is open to any pupil residing within the state. See id. at 3973(2)(a)(ii).

    Type Three is an existing public school converted into a charter school by the local board, in which enrollment is limited to students who are eligible to attend a public school within the city or parish. See id. at 3973(2)(a)(iii). In order to convert the existing school into a charter school, there must be approval by two-thirds of the teachers and by a majority of the students' parents. See id. at 3972(2)(a)(iii), 3983.C(1)(a).

    Type Four is an existing public school converted into a charter school by the authority of the State Board of Education and the local board. See id. at 3974(2)(a)(iv). As with Type three charter schools, for Type four schools, there is the same eligible student body and the same requisite teacher and parent approval. See id.
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    Pupils at risk, are specifically accounted for under Louisiana's charter school statue. For Type One and Type Two charter schools, the school's percentage of at risk pupils shall be equal to not less than eighty-five percent of the district's percentage of at-risk students, who are eligible to participate in the federal free or reduced lunch program. See id. at 3991.B(1)(a)). For Types Three and Four charter schools, unless otherwise provided for by the school board, the school must have the same percentage of at-risk teens as was enrolled in the prior school year. See id. at 3991.B(1)(b)).

4. North Carolina

    In North Carolina, any person, group of persons, or nonprofit corporation may apply for approval to create a charter school. See N.C. Gen. Stat. sec. 115C–238.29B–30 (Supp. 1997). Applications are submitted to the State Board of Education, local school board, or board of trustees of the University of North Carolina, although only the State Board may grant final approval to a charter school application. See id. at 115C–238.29B(c)(1–(3); id. at 115C–238.29D(a). Existing private and public schools may be converted into charter schools, based on support of a majority of the employed teachers and a ''significant number'' of student's parents. See id. An approved charter school, though independent, is still held ''accountable'' by the local board of education or the State Board of Education, depending upon its type. See id. at 115–238.29 E(a).

5. South Carolina

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    In South Carolina, charter schools are defined as public nonprofit corporations forming schools not associated with any religion, and held accountable by the local school board of trustees. See S.C. Code. Ann. sec. 59–40–20–190, 59–40–40(1) (Law Co-op. 1976 & Supp. 1997). In order for a public school to convert to charter status, two-thirds of the faculty, staff, and student's parents must approve of the charter proposal. See id. at 59–40–100(A). Once granted charter status, employees of the school and parents shall elect the charter school's governing body annually. See id. 59–40–50(B)(8).

6. Texas

    Texas provides three different classifications of charter schools. See Tex. Educ. Code Ann. sec. 12.001–118 (West Supp. 1996). First, there are Home-Rule school district charters. See id. at 12.014–12.022. Home-Rule charters occur when every school in the entire district converts into a charter school. In order to establish a Home-Rule charter, the proposed charter must be approved by a minimum of 25 percent of the voters of the district in an election, a commission of representatives from the district, the Secretary of State, and in a legal review by the Commissioner. See id. at 12.015, 12.016, 12.017, 12.018, 12.022, 12.021.

    Second, there are Campus and Campus Program charters. See id. at 12.052–12.064. Here, existing schools may convert to charter status. Campus Program charters enable existing private or public schools to become charter schools, based on the majority approval of parents, faculty and teachers. See id. at 12.052. In addition, each Campus charter school is required to establish plans, outlining the educational program, providing for the continuation of the charter, and specifying grounds for revocation of the charter. See id. at 12.058(1)–(3).
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    Third, there are Open-Enrollment charter schools. See id. at 12.101–12.118. Open-Enrollment charters are granted to new start-up schools who operate in a commercial or nonprofit entity, including a Home-Rule district. See id. at 12.101. No more than one-hundred Open-Enrollment charter schools may be created within Texas. See id. at 12.101(b). Additional Open-Enrollment charters, however, may be granted if at least 75 percent of the student body are ''at-risk students.'' See id. at 12.1011 (a)(2).

B. Charter School's Civil Rights Statutory Provisions

    The overwhelming majority of the state charter school statutes discuss the schools' obligation to follow civil rights or anti-discrimination regulations or policies. A minority of states, including Alaska, Arkansas, Delaware, Georgia, are the only states that do not describe the charter school's requirements pertaining to civil rights. See Alaska Stat. sec.14.03.250–290 (Michie 1996); Alaska Stat. sec. 14.03.250–290 (Michie 1996); Ga. Code. Ann. sec. 20–2–255 (1996); Del. Code. Ann, tit. 14 sec. 501–516 (1993 & Supp. 1996).

    The scope of charter school's civil rights requirements varies greatly among States. Some States have explicitly defined requisite student-body ethnic compositions by percentage, based on the surrounding population, and non-discriminatory admission policies. Other States have expressly stated that charter schools are subject to all federal, state, and local civil rights requirements or desegregation orders, which apply to other schools within the district.

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1. Florida

    Florida's statute comprehensively addresses charter school's civil rights requirements. See Fla. Stat. Ann. sec. 228.056–057 (West 1989 & Supp. 1998). Generally, it requires a charter school to abide by all state and local civil rights requirements, anti-discrimination provisions, and federal desegregation requirements. See id. at 228.056 (8)(e); id. at 228.057 (4); see also id. at 228.056 (11) (noting alternatively that charter schools are not exempt from state civil right laws). More specifically, the charter school must provide guidelines for ''ways by which the school will achieve a racial/ethnic balance reflective of the community it serves.'' See id. at 228.056 (9)(a)(8). In addition, Florida mandates that students with handicapped conditions or enrolled in the English for Speakers of Other Languages program shall have an equal opportunity for charter school enrollment. See id. at 228.056(e).

2. Louisiana

    As in Florida, Louisiana has enacted numerous civil rights provisions in its Charter Schools Act. See La. Rev. Stat. Ann. sec. 3971–4001 (West 1982 & Supp. 1998). Louisiana requires charter schools to comply with civil rights and individual disabilities state and federal law and regulations, applicable to public schools, and ''any court-ordered desegregation plan in effect for the city or parish.'' See id. at 3996 (C); id. at 3991(C)(3). In Louisiana, admission to charter schools cannot be based on ''race, religion, gender, ethnicity, national origin, [or] intellectual ability.'' See id. at 3991 (B)(3). Further, Louisiana prohibits a charter school from discriminating against its employees, potential employees, and pupils in violation of state or federal law. See id. at 3991(E)(4).
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3. North Carolina

    North Carolina's civil rights requirements narrowly focus on the student population, by forbidding discrimination in admission and requiring a minimal degree of diversity, as well as providing a broad requirement. See N.C. Gen. Stat. sec. 115C–238.29B–30 (Supp. 1997). In North Carolina, a charter school may not discriminate against any student, generally or for purposes of admissions, on the basis of race, ethnicity, national origin, gender, disability, religion, creed, and intellectual ability. See id. at 115C–238.29(g)(5). Moreover, North Carolina imposes an affirmative duty on charter schools, one year after its establishment, to make the school's population reasonably reflect the racial and ethnic population of the surrounding community or the special population that the school seeks to serve. See id. North Carolina also states that charter school are subject to any ''court-ordered desegregation plan in effect for the local school administrative unit.'' See id.

4. South Carolina

    As in North Carolina, South Carolina addressed charter school's civil rights obligations with respect to the school's racial composition, in addition to a general requirement. See S.C. Code. Ann. sec. 59–40–20–190 (Law Co-op. 1976 & Supp. 1997). In South Carolina, the racial composition of charter school enrollment may not differ from that of the school district by more than ten percent. See id. at 59–40–50(B)(6); see also 59–40–60(f)(8) (requiring a plan for how to achieve such racial composition). More generally, charter schools are subject to all federal and state laws and constitutional provisions prohibiting discrimination. See id. at 59–40–40(2) (b). In other words, charter schools must adhere to the same civil rights and disability requirements, just like any other public schools in the district. See id. at 59–40–50(B)(1).
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5. Texas

    In comparison to its lengthy charter school statute, Texas' provisions barely touch upon the civil rights requirements for charter schools. See Tex. Educ. Code Ann. sec. 12.001–118 (West Supp. 1996). Nonetheless, Texas does ''prohibit discrimination in admission on the basis of national origin, ethnicity, race, religion, or disability.'' See id. at 12.058(4). In broad terms, Texas mentions that charter schools are subject to federal and state laws and rules governing public schools, except for exemptions provided for in this code. See id. at 12.055. More particularly, Texas mandates that the charter commission, which decides whether to grant charters, must reflect the ''racial, ethnic, socioeconomic, and geographic diversity of the district.'' See id. at 12.015(b).

C. State Case Law Pertaining to Charter Schools

    Not surprisingly, as with the federal case law, there have been relatively few state cases which have discussed the constitutionality of charter school statues. See Council of Organizations v. Governor of Michigan, 548 N.W.2d 909 (Mich. App. 1996), 566 N.W.2d 208 (Mich. 1997); see generally Questions Regarding Charter Schools, Op. Att'y Gen. 8 (Feb. 26, 1997)(addressing the revocation and parental substantial involvement provisions of Georgia's charter school statute). In Michigan, however, a group of parents challenged the legality of the state's charter school statute. See Council of Organizations, 548 N.W.2d at 909.

    Michigan's Court of Appeals, affirming the trial court, held that the academy school statute was unconstitutional because the public school academies4 were not under the state's immediate, exclusive control, and thus not public schools. See id. at 212. In furthering its ruling, the court of appeals issued a permanent injunction prohibiting the distribution of any state school funding to public academies. See id. at 213.
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    The Supreme Court of Michigan, however, reversed the appellate court's decision, declaring that the school statute was constitutional. See 566 N.W.2d at222. Although the 1963 Michigan Constitution does not define public schools, it states that the Legislature has the responsibility for supporting a system of free public schools. See id. at 25–6. Moreover, the Supreme Court noted that there is no constitutional requirement requiring the State to have exclusive control over public schools. See id. at 216.

    Even if the constitution required state control, the plaintiffs argument would fail because the State controls the revocation, application-approval process, relevant school codes, and funding of charter schools. See id. at 216. The academy school statute does not violate the parochial amendment, banning money for private schools, because academies are not parochial schools. These academies do not charge tuition, nor are they affiliated with religious organizations. For these reasons, the court determined that public academies, or charter schools, are constitutional public schools.

     

62858e.eps

held that: (1) parents failed to show discriminatory intent on part of school district in making the decision as would support violation of parents' right to equal protection; (2) parents failed to show that closing of neighborhood elementary schools and opening of charter school would have discriminatory impact on Hispanic students as would support violation of Title VI of the Civil Rights Act of 1964; and (3) Colorado had legitimate interest in encouraging innovation in education such that portion of Charter Schools Act designed to increase educational opportunities of at-risk pupils, did not create suspect class and did not violate equal protection clause.
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CIVIL RIGHTS DIVISION INVOLVEMENT IN LOUISIANA CHARTER SCHOOL MATTERS

    This paper discusses the involvement of the Civil Rights Division in four charter school matters—East Baton Rouge, Louisiana, Monroe, Louisiana, St. Helena Parish, Louisiana, and Georgetown, South Carolina.

East Baton Rouge, Louisiana

    This is a case in which the Legal Defense Fund is a party and AAAG Lee is recused.

    East Baton Rouge Parish is a large school district which currently enrolls approximately 56,000 students, of whom approximately 67% are Black. The system runs 97 schools of which at least 50 are considered one race schools. In 1980, when liability was established, the district enrolled approximately 67,000 students in approximately 100 schools of which 67 were determined by the court to be one race or segregated.

    This is a longstanding school desegregation case. The case was initially filed in 1956 by private plaintiffs, the United States intervened in 1979. In 1980, the court granted the United States' motion for summary judgment on liability, and thereafter, entered remedial orders in 1981 for the elementary and middle schools and the high schools in 1982. The orders essentially divided the school system into attendance areas which were served by three to four elementary schools which fed a middle school which in turn fed a high school. Attendance at an elementary school was to be determined by the student's choice of a special focus program offered at the various schools, e. g. fundamental focus, extended day. Additionally, several schools were paired or clustered and three system wide magnet schools were approved. The remedial order did not achieve full desegregation. Indeed, as noted above, a majority of the schools remained racially segregated.
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    In 1996, the parties entered into a consent decree which permitted the district to modify the desegregation plan then in effect by implementing a new plan devised by the school board which includes the creation of at least 26 magnet program schools and the rezoning of all schools except the system wide magnet schools to create ''community sensitive attendance zones'' (a euphemism for neighborhood schools). Additionally, the district agreed to enhance many of the one-race schools. The district has not complied fully with the consent decree, partly because it claims not to have sufficient funds. For instance, the district has not: adequately wired two one-race schools to accommodate the computer magnet focus; provided the appropriate facility and program enhancements at each of 30 (''Y-factor'') one-race school called for under the consent decree to be used as inducements to draw opposite race students; submitted a plan for elimination of the large number temporary buildings as required by the 1981 court order, 1996 consent decree and 1998 court order; or submitted a plan to reduce enrollments at one-race schools. The district has not complied with the consent decree in other ways which are unrelated to funding. For example, the district failed to establish a gifted program at a one-race school. However, after a hearing last year, it was ordered by the court to establish the required program.

    The district recently passed a tax levy, and DOJ has agreed that the district should go forth with many of the technological improvements and salary increases included in the levy. However, we do have a dispute with the district over the proposed construction projects. The district proposes to increase the size of segregated schools and has not considered integrative options. DOJ is attempting to resolve differences amicably.

    In February, 1998, DOJ staff was informed by the district that it had received an application for the establishment of the Children's Charter School and that the Board would likely approve the school at its next meeting. DOJ indicated to counsel that court approval would be necessary. DOJ also met with the administrators of the proposed charter school, representatives of SABIS (the day-to-day management entity for the proposed charter school), their counsel, local school board administrators, their counsel, counsel for the local NAACP, and Legal Defense Fund (LDF) on several occasions to discuss how the school would operate in light of the extant court order, and requested information to ascertain the potential impact of the charter on desegregation in the East Baton Rouge school district. These discussions occurred sporadically for several months and the charter school administrators did not provide all of the information requested, e.g., a realistic projection of enrollment by race, a detailed description of the relationship between the charter school and the East Baton Rouge Parish School Board, a description of the charter school's understanding of the requirements of the extant desegregation plan, and a description of how the charter school intends to provide special education services.
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    It was the charter school's position that as a charter school it is exempt from most regulation and therefore, should be allowed to operate without regard to its possible effect on the East Baton Rouge schools so long as it did not discriminate on the basis of race.

    On February 9, 1999, the district filed a motion with the court asking for approval.(see footnote 58) However, at that same time, the school board, not the United States, asked the court to postpone consideration of the motion—approval to open the charter school. Therefore the court relieved the parties of the responsibility to respond to the motion.

    DOJ has met with the school board, charter school board members, SABIS, their counsel, counsel for NAACP, and LDF, and informed them of concerns, including the possible impact on the little bit of desegregation achieved at the schools near the proposed charter. Contrary to published articles suggesting that the charter would enroll 650 students, the actual contemplated enrollment is 1200; 650 students would attend in just the first year. DOJ has also expressed some concern about the drain of funds since the district claims it cannot fulfill its responsibilities under the decree because of lack of funds.

    At these meetings, we have repeatedly indicated that we do not oppose charter schools. But we have expressed concerns about circumstances where the creation and operation of charter schools may have a negative effect on the desegregation process and/or impede the school board's ability to fulfill its obligations under the extant desegregation plan and applicable federal law. Here, we have requested that the charter school representatives commit to refraining from taking any action that might negatively affect the fragile level of desegregation attained in this system. To this end, we have requested that the charter school administrators agree to not enroll black students attending predominantly white schools or white students attending predominantly black schools. The charter school board representatives (Mr. McCollister) have denied this request out of hand. Additionally, we have asked the local school board to indicate to us that the allocation of funding for operation of the charter school would not impede the local board's abilities to fulfill its responsibilities under the 1996 and 1999 consent decrees. The local school board has not responded to this request.
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    The charter school group sought to intervene and DOJ opposed the intervention in the lawsuit by the charter school group on the grounds that their interests are adequately represented by the school board. On March 24, 1999, the court denied the motion in part because ''Children's Charter concedes that its interests are 'virtually identical' with that of the School Board.'' 3/24/99 Order at page 4.

    DOJ has now been informed that the district intends to withdraw its motion so that it will purportedly no longer represent the charter school's interests, and that the charter school has asked Mr. Bolick to represent it in future proceedings.

    Currently, three other charter schools operate in the district, one of which is operated by the proponents of the proposed Children's Charter. DOJ has not objected to these schools. They are relatively small. However, DOJ has expressed concern to the local school board about proposed expansion of these schools, because of the potential effect on desegregation, including the impact of any loss of funds. We have recently been informed that the school board will be forwarding to us a letter requesting our position regarding the proposed expansion of these schools. We will respond to the letter when we receive it.

St. Helena Parish, Louisiana

    This is a case in which the Legal Defense Fund is a party and AAAG Lee is recused.

    St. Helena Parish is a small school district of approximately 1200 students of whom 91 % are African-American. The school district is one of the poorest in the state. On February 26, 1998, the local school board rejected the charter school developer's application but was overruled by the State Board. DOJ has not opposed the charter but has asked the State Board for information regarding its impact on desegregation and the likely racial composition of the school. DOJ has not been supplied all of the information that it requested by letter in March, 1999.
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    Many years ago, when the district was ordered to desegregate, the white students who resided in the district enrolled in the public or private schools in the neighboring Parish. Now, most of the white students who reside in the Parish attend private schools. St. Helena's Superintendent informs us that the private school is experiencing financial problems and has notified parents that it will be raising tuition. According to the Superintendent, the parents are looking for an alternative to the private school and do not wish to enroll their children in the predominantly African-American St. Helena Parish system. The proposed charter would be located in a rural section of a predominantly white residential area. Transportation would not be provided. The State Board is providing DOJ with information.

Monroe, Louisiana

    In August, 1997, the local school board rejected the charter school application. However, the State Board overruled the local board. The local board sought DOJ's assistance. Thereafter, the district filed a motion for a restraining order seeking to enjoin the operation of the charter school. Conferences were held with the court in July, 1998. DOJ requested that before the court approved the charter, there should be an evaluation of whether the charter adversely impacts desegregation in the city school system. A hearing followed in October, 1998, during which it appeared that the board and the charter school proponents could agree on the parameters of the operation of the charter. DOJ supported continuing the hearing until the agreement could be worked out. The court, continued the hearing and permitted the charter to open for the time being. Nothing has happened since.

Georgetown, South Carolina
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    In discussions with Board counsel, DOJ explained that its position was not in conflict with South Carolina state law. First, Section 59–40–50 of the South Carolina Charter School Act states that a charter school must adhere to the same civil rights requirements as are applied to other schools operating in the same school district. Second, in Beaufort County Bd. of Educ. v. Lighthouse Charter Sch. Comm. and the State of South Carolina, No. 97–CP–07–794, Order at 13–14 (S.C. Ct. Com. Pleas Feb. 21, 1998), the Court of Common Pleas reversed the South Carolina Board of Education's decision approving the application of the Lighthouse Charter School Committee. The Court held that the Committee had failed to prove that the charter school could adhere to the Beaufort County Board of Education's voluntary compliance agreement with the U.S. Department of Education, Office for Civil Rights.

    On December 1, 1998, the parents in the Pleasant Hill area voted by a 2 to 1 margin against converting the three public schools into charter schools.

    A charter school currently operates in the district. DOJ does not object to that charter.

     

ANALYTICAL FRAMEWORK

    Equitable remedy—balance individual and collective interest, Swann, just because under order doesn't mean educ reform inconsistent or impermissible [cases]
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    elements of charters school—independent board, public funds that may otherwise go to district, students from same geographic area (at least most), may be in a public school building in district or other bldg within jurisdiction, state laws may define deseg oblig.

    Non discriminatory in admissions—starting point

    Particular plan may be determinative whether ct approval should be sought by district. Specifics such as ebr in original order, or may require modification of injunction whether directly or thru approval of a plan.

    Various frameworks apply, split off district, which I think is the closest, but also others such transfers, magnet schools and construction may also come into play.

Split-off districts

    In Valley v. Rapides Parish School Board, No. 97–30323, April 22, 1999, the United States Court of Appeals for the Fifth Circuit, en banc, reiterated well-establish desegregation law regarding split off districts and required that the district court hold a hearing to allow the new split-off board and the state ''the opportunity to demonstrate that the implementation and operation of the proposed district will not adversely impact the plan of desegregation under which the district now operates.''

    First, the court required the state and the new split-off board to ''prove the availability of procedures, methods, and agreements that if put in place will avoid any adverse impact upon the present federal plan of desegregation'' and that they will support implementation of the procedures, methods and agreements.
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    Second, the state and organizing district are required to show at each step along the way how the new district will work with the present district regarding interdistrict pupil assignment, transportation, curriculum, teacher employment and transfers, financing and taxation, school construction, magnet schools, and other areas deemed pertinent to the accomplishment of the underlying desegregation order.

    This recent en banc opinion cited to Ross v. Houston Independent Sch. Dist., 559 F.2d 937, 944–45 (5th Cir. 1977), in which the Fifth Circuit discussed the seminal Supreme Court cases regarding split-off districts, Wright v. Council of the City of Emporia, 407 U.S. 451 (1972) and United States v. Scotland Neck City Board of Education, 407 U.S. 484 (1972). Relying on and citing these cases, the Ross court stated that any attempt by a state or local officials to carve out a new school district from an existing district in the process of dismantling a dual school system must be judged according to whether it hinders or furthers the process of school desegregation.. If the proposal would impede the dismantling of the dual system, the district court in the exercise of its remedial discretion may enjoin it from being carried out.

    The Ross Court noted that the district court must focus on how the creation of the new district would affect the achievement of desegregated system in the entire area covered by the court's order. The dominant purpose test is not to be applied. The Fifth Circuit noted that the Supreme Court in discussing Emporia ''identified three factors to be weighed: (1) changes in educational quality if upgrading the quality of education for students in the new district would have a substantial adverse affect on the quality of education for students remaining in the old district, then the operation should not be allowed; (2) changes in student composition mere changes in racial ratios are not enough to bar the creations of a new district, but if shifts in ratios would be likely to cause problems such as white flight from the old system or white returns from private schools to the new system, separation should not be allowed; (3) timing if establishment of a new district might have preceded court action but instead has come about as a reaction to the desegregation order, it may carry the same negative message condemned in Brown I.'' Id. at 943–44.
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    The Supreme Court's refusal to allow the implementation of the Emporia split-off was based on findings of the district court that the separation would result in a loss to the remaining county schools of leadership and financing and possibly teachers, all of which would diminish the chances for transition to a unitary system. In Scotland Neck, the court held that the source of power that creates the split-off is immaterial. It emphasized that the effect, not purpose was the key. And because the splitoff would result in a 57% white system in the confines of a 77% black system, affirmed the refusal to allow the split-off. While pupil percentages alone are not controlling, where the disparity between the old and new districts is substantial, the effect on the achievement of court ordered desegregation becomes axiomatic. Id. at 944.

    [superimposed district-dist wide enroll]

    [don't impede ct order, financial issues may be considered re impact on original district, some flexibility in racial comp of split off, also considers whether would be an alternative such as white flight academy]

Student transfers

    Since the students who enroll in a charter school will be transferring from a public school or would be assigned to a public school in the jurisdiction if they elected to attend the public school system, and the charter school is operated by an entity different from the public school system, the law regarding interdistrict transfers has some relevance.

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    Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211 (5th Cir. 1969) (en banc) provides the standard in desegregation cases for reviewing interdistrict transfers. It required that ''if the school district grants transfers to students living in the district for their attendance at public schools outside the district, or if permits transfers into the district of students who live outside the district, it shall do so on a non-discriminatory basis, except that it shall not consent to any transfers where the cumulative effect will reduce desegregation in either district or reenforce the dual system.'' Id. At 1218–1219.

    The Singleton transfer provision was designed to prevent white students from fleeing predominantly black, often urban schools to majority white public schools in neighboring counties. United States v. Lowndes Co. Bd.of Educ., 878 F.2d 1301, 1306 (11th Cir. 1989) .

    The cumulative effect of transfers is measured qualitatively on a school-by-school basis, ''without blind deference to an objective mathematical formula.'' Lee and United States v. Eufaula City Bd of Educ., 573 F.2d 229, 232 (5th cir. 1978) However, in measuring qualitative segregative effect on a school-by-school basis, the range of deviation may be a significant factor and a'' transfer program which has the effect of increasing the black student population in a particular school from 90% to 100% may be more suspect than a corresponding 10% increase from 50% to 60%. The qualitative analysis includes whether the school has taken on a racial identity or ''whether the increment of change is likely to alter significantly the general perceptions of [the school's] racial identity or the behavior of persons who rely on such factors in determining whether or not to send their children to a particular school.'' United States v. Lowndes Co. Bd.of Educ., 878 F.2d 1301, 1308 (11th Cir. 1989).
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    Transfers may not be limited to students of one race. Eufala at 232 n.6, and the school board may be required to adopt procedures to monitor transfers to ensure compliance with Singleton. Id. at 235.

    With respect to intra district transfers, court orders permit majority to minority transfers, and transfers for various hardships.

Magnet school

    Orders approving magnet schools, may prescribe a particular racial ratio for the magnet school, usually with reference to the racial ratio of the district's students plus or minus some percentage. The order or plan may prohibit transfers to magnet schools where the transfer will adversely affect desegregation in the sending school. However, in some plans, St. Louis' for example, in later years this was not a consideration.

Construction—opening a new school.

    Singleton requires that ''[a]ll school construction, school consolidation, and site selection (including the location of temporary classrooms) in a school system must he done in a manner which will prevent recurrence of a dual school structure once a desegregation plan is implemented.'' Singleton v. Jackson Municipal Separate School District, 419 F.2d 1211, 1218 (5th Cir.1969)(en banc). Desegregation must be a consideration in school construction, and if a school in built without appropriate consideration of desegregation, the district will be proceeding at its own risk. Pitts v. Freeman, 755 F.2d 1423 (11th Cir. 19**). Polk and Hendry, Harris v Crenshaw-968 f.2d 1095, avoid decisions that perpetuate duals system and render decisions that further desegregation.
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    [location a factor, when there are alternatives]

Stage of the case

    Good faith compliance with court order—Dowell and Pitts, important in viewing any request from school district

    Other issues—Lau, special education,

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC.
CHENEY JOSEPH, Esq.,
Executive Counsel's Office,
Office of the Governor,
State Capitol Building, Baton Rouge, LA.

Louisiana State Charter Schools

    DEAR MR. JOSEPH: This is written in reference to our recent meeting to discuss possible ways of cooperating in the State's program of creation of charter schools.

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    Pursuant to my agreement at the recent November 18th meeting, I have reviewed the list of the Louisiana desegregation cases provided by Dr. Bierlein. I have determined that there are additional cases which have been filed and continue to be listed on the various court dockets. The following is a listing of those additional cases. However, it should be borne in mind that these two listings (the one you provided and the instant one) may not be exhaustive.

 1) United States v. Lincoln Parish School Board, C.A. No. 12071 (Western District),

 2) United States and Johnson v. Jackson Parish Board, C. A. No. 11130 (Western District),

 3) United States v. LaSalle Parish School Board, C. A. No. 12178 (Western District),

 4) United States v. Catahoula Parish School Board, C. A. No. 14430 (Western District),

 5) United States v. Avoyelles Parish School Board, C. A. No. 12721 (Western District),

 6) United States and Williams v. Sabine Parish School Board, C. A. No. 14516 (Western District),

 7) United States and Thomas v. St. Martin Parish School Board, C.A. No. 11314 (Western District),
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 8) United States and Trahan v. Lafayette Parish School Board, C.A. No. 10903 (Western District),

 9) United States and Celestian v. Vermillion Parish School Board, C. A. No. 11908 (Western District),

10) United States and Jenkins v. Bogalusa City School Board, C. A. No. 15798 (Western District),

11) United States and Hall v. St. Helena Parish School Board, C. A. No. 1068 (Middle District),

12) United States and Dunn v. Livingston Parish School Board, C. A. No. 3197 (Middle District),

13) United States v. St. Bernard School Board, C. A. No. 16323 (Eastern District),

14) United States and Harris v. St. John Baptist Parish School Board, C. A. No. 13212 (Eastern District);

    Further, there are various cases in which the United States is not a participant but where the plaintiff-party might be the Lawyers Committee (District of Columbia), or the NAACP, or the NAACP-Legal Defense and Educational Fund, or a local chapter of the NAACP, or local community persons. Since most of these cases are fairly old, we do not have a complete listing of them. However, we are able to provide partial information on some of them as follows:
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 1) Williams v. Kimbrough (Madison Parish) C.A. No. 11329 (Western District),

 2) Taylor v. Ouachita Pariah School Board, (Western District),

 3) Gordon v. Jefferson Davis Parish School Board, (Western District),

 4) Batiste v. Acadia Parish School Board, (Western District),

 5) Henderson v. Iberia Parish School Board, (Western District),

 6) [Blank] (Western District),

 7) Boudreaux v. St. Mary Parish School Board, (Eastern District),

 8) Hill v. LaFourche Parish School Board, (Eastern District),

 9) Dandridge v. Jefferson Parish School Board, (Eastern District) and

10) There are cases filed against the Allen, Tangipahoa, Assumption, and Winn Parishes School Boards.

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    I trust that this information will be of assistance to you.

    I look forward to working with you, Dr. Bierlein, Mr. Hrdlicka, Ms. Matheny and the staff of the Board of Elementary and Secondary Education.

    Should you have any questions concerning this matter do not hesitate to contact me or Ms. Lisa Evans. I may be contacted at 202/514–3784 and Ms. Evans may be contacted at 202/307–6687. However, should you wish to discuss this letter or the charter school subject, in general, between December 9th and January 4th, please direct your inquiry to Ms. Evans.

Sincerely,

Franz R. Marshall, Acting Deputy Section Chief.

cc:
Dr. Louann Bierlein
Mr. James Hrdlicka
Ms. Kathy Matheny

     

62858f.eps

62858g.eps
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UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA, CIVIL ACTION NO. 56–1662–A

CLIFFORD EUGENE DAVIS, JR., ET AL

and United States of America

V.

East Baton Rouge Parish
School Board, et al

EXCERPTS FROM JULY 29,1996 CONSENT DECREE

    The Court does hereby order as follows:

    Student assignment plan designed to achieve 1) community sensitive attendance zones, 2) voluntary transfers and 3) educational equity for racially identifiablv black schools.

    ''The EBRPSS [East Baton Rouge Parish School System] acknowledges its legal obligation under this Consent Decree to take necessary and reasonable steps to make the repairs and/or replacements to racially identifiable black schools. . . . the Court and the parties understand that adequate funding must be made available to ensure the success of this plan.''
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    ''Because the School Board has urged the Court and plaintiffs that such a plan may be a practicable method of ultimately desegregating this public school system, the Court and the plaintiffs will not accept any excuse related to lack of funding. . . . The School Board may not urge the Court and the plaintiffs to approve a desegregation plan and then avoid implementing the plan because of a lack of funding. The full implementation of this plan requires the appropriation of not less than 3 million dollars during each of the first three years and a substantial increase thereafter for the remaining years of the life of this Consent Decree for the enhancement of the racially identifiable black schools.''

    ''No new school shall be constructed, nor shall any addition to an existing school be constructed, without approval of the Court.''

    ''No school shall be closed without approval of the Court.''

    ''No closed school shall be reopened without approval of the Court.''

    ''For the purposes of this plan, a desegregated school is one which has a racial composition within fifteen percentage points above or below the system-wide student ratio at the grade levels served by that school. . . . The EBRPSS commits to the elimination of 14 racially identifiable schools by the end of the third year of implementation of this plan.''

    ''Notwithstanding any other provisions of this order, the EBRPSS agrees that by the end of the completion of the third year after the implementations of this plan, substantial improvement towards the goal of equality of educational opportunities, reductions of racial isolation, and stabilization for the purposes of future desegregation in the school system must have been made, and it is understood that if such improvement is not undertaken as of that time the Court may order the implementation of a desegregation plan utilizing traditional desegregation methodologies.''
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62858h.eps

  (2) the applicant must have an interest relating to the property or transaction that is the subject of the action;

  (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede its ability to protect its interest; and

  (4) the applicant's interest must be inadequately represented existing parties to the suit. Sierra Club v. Espy, 18 F.3d 1202 (5th Cir.1994).

    Children's Charter School claims to have an interest relating to the ''transaction which is the subject of the action'' because it is a party to a contract that has been submitted to this court by the School Board for approval. More specifically, Children's Charter School entered into a contract,(see footnote 59) with the School Board relating to, a proposed charter school to be opened in Bon Marche Mall. According to Children's Charter School, any disposition of the motion for approval of the contract will directly affect its interests as a party to the contract. While Children's Charter School recognizes that its claims ''are virtually identical to those of the School Board'', it nevertheless contends that it should at least be afforded permissive intervention to protect its interests under the contract.

    In opposition, the United States argues that the request is not timely made. Additionally, the government argues that the proposed intervention would prejudice the original parties by diverting their time and resources from the ''core'' matters this desegregation lawsuit; implementation of the tax plan approved last November.
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    The court finds no merit to the application for intervention ''of right''. Children's Charter lacks a direct interest in the transaction or subject matter of this desegregation case. Mover cites no authority for allowing intervention of right based upon a tangential interest, such as the contract interests it claims here. In the context of a desegregation case, the jurisprudence requires a proposed intervenor to demonstrate an interest in the desegregation of the school system. The mover must identify the precise issues which it seeks to present so that the court may determine whether those issues have been previously raised by the parties. Calhoun v. Cook, 487 F.2d 680 (5th Cir. 1973), Hines v. Rapides Parish School Bd., 479 F.2d 762 (5th Cir. 1973). Not only must the mover bring new issues to the court, those issues must be related to desegregation and the establishment of a unitary school system. U.S. v. Perry County Bd. of Ed., 567 F.2d 277 (5th Cir.1978).

    Complying with all of these factors is well nigh impossible for Children's Charter School to accomplish, in view of the Consent Decree which was submitted to the court by all parties and approved by the court on August 1, 1996. The Board is presently implementing the Consent Decree and under its terms is making significant progress toward attaining a unitary public school system in East Baton Rouge Parish.

    Additionally, the application for intervention of right is deficient inasmuch as Children's Charter has failed to show that its interests are inadequately represented by the School Board. Indeed, Children's Charter concedes that its interests are ''virtually identical'' with that of the School Board and there is no suggestion that the School Board cannot adequately represent the interests of the parties to the contract as far as court approval or disapproval of the contract is concerned.
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    The alternative request for permissive intervention is a matter committed to the discretion of the court. Rule 24(b) specifically requires the court to consider ''whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties''. The court finds that the United States has raised valid concerns regarding the delay and prejudicial effect of allowing Children's Charter to intervene.

    Accordingly, the motion by Children's Charter (doc. no. 1006) to intervene is hereby DENIED.

Baton Rouge, Louisiana, March 24,1999.


JOHN V. PARKER,
UNITED STATES DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
     

DAVIS V. EAST BATON ROUGE PARISH SCHOOL BOARD

U.S.D.C., M.D. LA.
NO. 56–1662–A

    Order on Joint Motion for Order Allowing for Implementation of a Portion of the Plan April 27, 1999

    Grants permission to East Baton Rouge Parish School Board to implement a plan to improve facilities, technology, discipline and teacher compensation in the EBRPSS.
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    Plan includes:

correcting fire alarm, code violations
roof repairs, replacements
HVAC repairs, replacements
electrical system upgrades
plumbing repairs, replacements
restroom upgrades

    Also provides for rebuilding of two schools at sites which result in substantially the same present racial composition of student bodies, in one case 99% black (Capitol Middle School) and in the other, 70% white (Woodlawn High School). Justification for rebuilding without improving desegregation ''rests in matters of health and safety of those students attending the present Woodlawn High School's location and the prohibitive cost involved in maintaining, remodeling, and/or repairing the existing Capitol Middle School.''

    ''The parties agree that nothing contained in this Order modifies the Consent Decree approved in this case by the Court on August 1, 1996.''

     


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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, March 5, 1998.
CHARLES L. PATIN, JR., Esq.
Kean, Miller, Hawthorne,
  D'Armond, McCowan & Jarman,
Baton Rouge, LA

Re: Davis, et al, and United States v. East Baton Rouge
Parish School Board, C.A. No. 56–1662–A (M.D. La)

    DEAR MR. PATIN: Pursuant to our telephone conversation on February 27, 1998, this is written in reference to the charter schools operating in East Baton Rouge Parish.

    It has been brought to my attention through an article appearing in the February 27th edition of the Baton Rouge Advocate that the East Baton Rouge Parish School Board has approved three charter schools for operation within East Baton Rouge Parish. Th order that we may assess the impact, if any, of the operation of the carter schools on the East Baton Rouge Parish School Board's ability to fulfill its obligations under the extant Consent Decree and applicable federal desegregation case law; please provide specific information describing the relationship of each charter school to the East Baton Rouge Parish School Board. Additionally, please provide the following information separately for each charter school;

 (1) the name of the charter school;

 (2) the location of the charter school;

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 (3) the date on which the charter school was approved by the East Baton Rouge Parish School Board;

 (4) the date on which the charter school commenced operation;

 (5) the grade configuration of the charter school;

 (6) the enrollment by race of each charter school for each year of operation;

 (7) identify the administrator of each charter school;

 (8) describe any and all assistance, in whatever form, the East Baton Rouge Parish School Board has provided each charter school for each of the charter school's operation;

 (9) provide any and all evaluations which the East Baton Rouge Parish School Board may have generated with reference to each charter school;

(10) provide a copy of the charter for each charter school;

(11) provide a description of the role of the East Baton Rouge Parish School Board, if any, in the enrollment/admission/matriculation of students to each charter school; and

(12) provide a description of the reasons utilized by the East Baton Rouge Parish School Board to support the approval of each charter school

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    Should you have any questions concerns this letter, please do not hesitate to contact me.

Sincerely,

Franz R. Marshall, Trial Attorney.

cc:
Robert C. Williams, Esq.
Alvin Washington, Esq.

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, February 3, 1999.
Hon. JOHN BREAUX,
United States Senate,
Washington, DC

    DEAR SENATOR BREAUX: Acting Assistant Attorney General Dennis K. Burke has referred to this office your letter dated December 17, 1998, concerning the inquiry of your constituent, Mr. Rolfe McCollister, regarding the East Baton Rouge Parish school desegregation case.

    As you are probably aware, the East Baton Rouge Parish School Board is a defendant in a long-standing federal school desegregation lawsuit and currently operates pursuant to a desegregation order issued by the federal district court in the Middle District of Louisiana. Additionally, the parties to the lawsuit, including the United States as a plaintiff therein, joined in the filing of a consent decree in August, 1996, which contained a new plan of operation for the school system. That plan has not been completely implemented. In this context, I am sure you understand that the parties to the lawsuits are constrained by the requirements of applicable federal law and the extant consent decree to avoid actions which may impede or have a negative effect on the desegregation process, the full implementation of the consent decree, and/or the projected positive results flowing from full implementation of the consent decree.
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    While it may appear to Mr. McCollister that little consideration has been or is being given to the proposal to enlarge the United Charter School and to the views of parents in East Baton Rouge Parish, I assure you that is not the case. In performing our law enforcement duties we give the greatest possible degree of deference to community sentiment. As an example of that effort, the Department of Justice attorney responsible for the Baton Rouge case has met with Mr. McCollister and/or his fellow charter school board members on at least three occasions, each meeting lasting a minimum 2 to 3 hours, to discuss this matter.

    While we continue to be willing to work with the United Charter School Board to resolve this matter, it should be borne in mind that any resolution we develop must comply with applicable federal law.

    I trust that the contents of this letter will assist you in responding you your constituent's concerns. Should you need additional information concerning this matter, please feel free to contact this office.

Sincerely,

Thomas E. Perez, Deputy Assistant Attorney General,
Civil Rights Division.
     


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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, April 20, 1999.
Hon. JOHN BREAUX,
United States Senate,
Washington, DC

    DEAR SENATOR BREAUX: Your February 17, 1999 letter to Janet Murguia, Deputy Director to the President and Senate Liaison for Legislative Affairs, has been referred to this office for a response to the inquiry of your constituent, Jim Geiser, concerning the creation and operation of a charter school, Children's Charter School, in East Baton Rouge Parish.

    As you will recall from previous correspondence, the East Baton Rouge School Board is a defendant in a long-standing school desegregation lawsuit and currently operates pursuant to a desegregation order issued by the federal district court for the Middle District of Louisiana. In August 1996, the parties to the lawsuit, including the United Sates as a plaintiff therein, joined in the filing of a consent decree which contained a new plan of operation for the school system. That plan has not been completely implemented.

    Mr. Geiser asserts that we take the position that the consent decree forbids charter schools and that the Department of Justice has the authority to unilaterally approve, or reject, the proposed charter school. Neither is correct.

    The desegregation order does not expressly prevent the creation of a charter school in East Baton Rouge Parish. To the contrary, we have met on several occasions with Mr. Geiser and other members of Children's Charter School's Board of Directors to discuss guidelines for operating the proposed charter school without impeding the desegregation process of the school system. We have asked Mr. Geiser and his associates to commit that Children's Charter will refrain from taking any action which would have a negative effect on the desegregation process. Such a commitment would not be unique to this case and is recognized by federal case law. Mr. Geiser and his associates, however, refuse to provide the commitment requested. Instead, they have asked repeatedly that we ignore the law and disregard the need for the commitment. On each such occasion, we have explained that we cannot do so.
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    Nor can the Department of Justice unilaterally approve the proposed charter school; that authority lies solely with the Court. Accordingly, the School Board, on February 5, 1999, filed a motion seeking court approval of the proposed charter school. Children's Charter, in turn, has sought to intervene in the desegregation lawsuit to participate in any hearing held on the issue. On March 2, 1999, the Court denied Children's Charter's request to intervene.

    Finally, it is important to note that the ultimate goal of this litigation is to provide a quality educational program to all students in the East Baton Rouge Parish School System. The Children's Charter Board, without obtaining court approval, operates a charter school in Baton Rouge. The United States and the other plaintiff parties have not brought this to the Court's attention nor have we sought to terminate the operation of the school. Instead, we have sought through negotiations with the school district to minimize any possible negative effect on the desegregation process. In achieving that goal, we remain willing, as we have done in the past, to meet with Children's Charter School's representatives to resolve this matter amicably. Any resolution we develop, however, must comply with applicable federal law and the 1996 consent decree.

    I appreciate the opportunity to address the issues raised by Mr. Geiser. Should you need additional information concerning this matter, please do not hesitate to contact the Department.

Sincerely,

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Anita S. Hodgkiss, Deputy Assistant Attorney General,
Civil Rights Division.
     

CHARTER SCHOOLS IN EAST BATON ROUGE, LOUISIANA

Existing Charter Schools

    Three schools are currently in operation, two elementary schools and one middle school. One of the elementary schools is a one race school (black), one is mixed.

    The schools have approximately 13O students each.

Proposed New Charter School

    The plan is for a K–12 school, 650 students the first year, expanding to 1200 students in subsequent years. Proponents claim the enrollment will mirror the at-risk population of the district. The school will be located on the edge of a minority neighborhood, in the Bon Marche Mail, next to a police station.

Public School Funding Implications

    The school district, if it approves the Charter School, as it did with the first three, loses two types of funds: 1) the state's payment of the average current operating expenditure per pupil, the minimum foundation formula, and 2) per pupil local tax contribution. At present we have estimates that the first, the minimum foundation formula, may equal approximately $4,000 to $5,000 per student per year. Thus, a charter school of 1200 students results in a loss to the school board of somewhere between $4.8 and $6 million annually. The local tax contribution per student is unknown to us at present.
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Charter Schools in Louisiana Generally

    The state currently has 13 charter schools, state legislation contemplates 42. Louisiana has schools districts under federal court order in cases in which DOJ is a party.

    State law requires that Charter Schools must follow all applicable federal civil rights laws, including any court orders providing for school district desegregation.

     

CHARTER SCHOOLS AND DOJ COURT ORDERED DISTRICTS

    We have reviewed the 1997–98 Directory of charter Schools provided by the Department of Education as well as some more recent sources on the Net to determine whether charter schools in some form are present in school districts currently under court orders to which the United States is a party. We also called some state departments of education.

    Insofar as the Directory does not provide the name of the school district in which the charter is located, it is in some instances difficult to determine at a glance whether the charter is in one of our court ordered districts. The list provides only the name of the school and the city or town and state. We will be following up to get an updated and more accurate list.

    Alabama, Arkansas and Tennessee do not appear to have charter schools and Mississippi has only 1.
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    The list provided by DOE is obviously stale, and the number of charters is mushrooming. For example, the 1997–98 Directory discloses 20 charters in Texas, none of which are in our districts. However, one Net source states that there are about 50 charters, with only the charter in Longview in our districts. But other sources say that for the current year, there are about 114 charters in the state and that the state has authorized about 143. We understand that there is a charter in Garland, which is one of ours, but not on any of the lists. In all events, we have asked the State AG's office for a current list by district. We are a party in the statewide case and in cases involving 39 separate districts.

    We are a party in approximately 212 cases involving 497 school districts.

    Based on the information available, here is a state by state breakdown. The districts identified either by city or county are school districts under court order where we are a party and which have one or more charter schools.

Arizona
Phoenix
Tucson

Florida
Gadsden Co.
Jackson Co.
Polk Co.
Seminole Co.
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Approved but not yet operating
  Marion Co.
  Walkula

Georgia
Talbot Co.

Illinois
Chicago

Louisiana
East Baton Rouge Parish
Evangeline Parish*
Lafayette Parish
Monroe City
Point Coupee Parish*
St. Landry Parish
*Alternative school, which is a charter under state law, operated by school board.

Mississippi
Bolivar County—charter and magnet receiving federal funds
*Maximum allowed—6 in the state, one for each congressional district.

North Carolina
Rocky Mounty City
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59 charters in state, adds 5 per year. We are a party in cases with 9 school districts. It does not appear, based on a cursory review of the addresses, that the other 58 are in our districts. We have requested a list from the state department of public instruction.

South Carolina
Georgetown County
In development
  Colleton County

    We have requested a list from the state department of education.

Texas
Longview
Garland—maybe

     

DRAFT—FOR DISCUSSION PURPOSES ONLY—DO NOT DISTRIBUTE

CHARTER SCHOOLS: HOW ARE THEY AFFECTED BY EXISTING DESEGREGATION DECREES?

    The Department of Justice and the Department of Education support the implementation of Charter Schools as a valuable way to enhance parent and student choices among public schools and give more students the opportunity to learn to challenging standards. The following information addresses common questions that persons planning public charter schools might have.
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    [Additional appropriate introductory language required here depends on whether this will be a stand-alone document, or inserted into other Department of Education materials.]

    Q: Is OCR or Court approval necessary in order to establish or operate a charter school where the operation of the charter school may impact the OCR or Court approved plan?

    A: Generally, before any new school, including a charter school, may be established in a jurisdiction that is under a Title VI desegregation plan approved by OCR, the appropriate local education authority or charter school should contact OCR for further consultation on any applicable Title VI obligations.

    With respect to court-ordered desegregation plans, court approval generally is required because the proposed new school will have some effect on student assignment within a school district.

    When considering a proposal to establish a new school, local education authorities and the charter school board, if any, should determine whether the jurisdiction is covered by an OCR plan or a court-ordered desegregation plan.

    To assist you in this process, the Department of Justice has provided your State's chief school officer with a list of the school districts in the state that are subject to a court-ordered desegregation plan in cases in which the United States is a party. (However, there may be desegregation orders covering school districts where the United States is not a party. Thus, Charter School operators should also check with the appropriate LEA to determine if the district is operating under a court order.) With respect to OCR desegregation plans, Charter school operators should check with the appropriate LEA to determine if the district has such a plan.
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    Q: Have the Departments of Education and Justice had any experience with LEAs obtaining Court approval to establish new and innovative schools and programs?

    A: Yes, both Departments have experience in this area that will be helpful to LEA's considering new charter schools. The Department of Education awards grants on a competitive basis for magnet schools. For school districts under court orders for desegregation, court approval is necessary for a successful applicant to receive the grant. LEAs request approval from the court, and the Department of Justice works cooperatively with the applicant, in cases where the United States is a party, to ensure that approval in appropriate cases is obtained as expeditiously as practical.

    Q: How can a Charter School in a district with an OCR plan contact OCR?

    A: The LEA or Charter School Board should contact the Office for Civil Rights by phone or mail and provide them information about the planned school. (The type of information that generally is helpful is detailed below.) [Add phone number/address].

    Q: How can a Charter School in a district under court order obtain approval?

    A: The LEA or Charter School Board should contact the parties to the order, including the Department of Justice and/or private plaintiffs, and provide them information about the planned school. [Add DOJ phone number/address]. Where DOJ is a party, we will work with the LEA and/or board to evaluate whether the proposal is consistent with the requirements of the applicable court order. In most cases, the LEA and any other parties to the order may also need to seek court approval of the planned school.
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    Q: If OCR consultation or Court approval is required, when should such consultation or approval be sought?

    A: OCR consultation or Court approval should be sought as early as possible. The earlier that OCR or DOJ is notified of the proposal, the easier it will be to work together to ensure the charter school proposal can be implemented without delay or disruption. For this reason, a LEA should not wait until just before the opening of school to seek approval.

    Q: How can OCR or Court approval be expedited?

    A: Certain information is especially helpful in evaluating the impact of a charter school proposal. Approval would be expedited by making this information available as early as possible. While there is no standard data requirement for all situations, you may wish to include the following basic information (A copy of the charter application, depending on state requirements, may contain much of the information listed below.):

    1. A description of the charter school(s), including any special theme, program, and particular target population, i.e. at-risk students.

    2. The proposed grade levels for the school, the projected racial composition of students, faculty and staff for the coming school year, and any planned expansion for the future in terms of grade level or enrollment.

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    3. A map disclosing the proposed location of the charter school(s) as well as nearby district schools of similar grade levels, and the area from which students are eligible to attend the charter school. If only students from the neighborhood surrounding the school are eligible to attend, that should be disclosed on the map. Also, if available, a map identifying the racial composition of the area surrounding and nearby the charter school(s).

    4. A description of recruitment and admission processes for the charter school, including any student eligibility requirements and any steps taken to attract an integrated student body and faculty and staff.

    5. The anticipated impact of the charter school on desegregation of other schools, i.e the level of desegregation of the schools students would have attended if they did not attend the charter school compared to the level of desegregation attained in those schools after establishment of the charter schools.

    Q: Under federal law, must a Charter School have a particular racial balance?

    A: No. Approval of a new school is an intensely fact-bound determination, based on the school's impact on the ability of the local education authority to comply with its desegregation responsibilities. There are no bright-line standards or absolute bars. Whether a particular school can be approved depends on factual considerations that are unique to each school system.

     
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From:

Coleman, Arthur

Sent:

Thursday, May 13, 1999 4:31 PM

To:

Coleman, Arthur; Winnick, Steve; Craig, Susan; Medler, Alex; Fiegel, John; Cole, Arthur; Wright, Sylvia; Kole, Adina; Lim, Jeanette; Choi, Alexander; Berkowitz, David; Sakowski, Gayle S.; Orris, Harry; Solomon; Junius; 'Martin—T@a1.eop.gov'; 'Peter-Rundlet@oa.eop.gov'; 'Juliette.N.Kayyem@justice.usdoj.gov'; 'jon schnur'; Kimball, Kristi; Dorka, Lilian

Cc:

Pierce, Raymond; Bowers, Susan; Lewis, Cathy H; Saunders, Kelly; Oliver, Kia

Subject:

RE: Charter schools/civil rights meeting

    This is a follow up to the earlier scheduling email. Here's a draft agenda for your consumption—would welcome feedback so that we can finalize by Monday a.m. and circulate. Please forward to those I may have missed. Alex, are you ok leading off, as indicated below? Juliette, let me know who will lead for Justice. Thanks to all. Art
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AGENDA
Civil Rights and Charter Schools Meeting
Tuesday, May 18,1999
12:00–5:00
ED OCR Large Law Library
MESwitzer Bldg. 330 C St. SW 5th Floor

12:00–12:30: Welcome; Introductions; Meeting Objectives

12:30–2:00: Desegregation issues and charter schools; Recap of ED feedback from constituents and framing the challenges—Alex Medler (10 minutes)
    ED OCR case overview—Jeanette Lim (5 minutes)
    Justice case overviews—(5 minutes)
    Discussion (70 minutes)

2:00–2:15: Break

12:15–3:45: Disability Issues and LEP issues
    Feedback from constituents—Alex Medler (10 minutes)
    ED OCR case overview—Lilian Dorka (10 minutes)
    Justice case overview—(10 minutes)
    Discussion (60 minutes)

3:45–4:00: Break
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4:00–5:30/DPC and WH counsel Join Meeting/: Recap for WH attendees; Framing issues that need to be addressed; Establishing work groups and deadlines; Establishing a process for continued and ongoing collaboration

    Friends, I think that earlier conversations or emails have passed, but just to confirm, we're attempting to assemble a group from ED/Justice and the White House for a conversation on Tuesday, May 18 from noon til 5:00: to discuss a range of pending civil rights and charter schools issues (outside of crisis mode, if there is such a thing); to outline a gameplan for addressing some emerging issues; and to begin work on some framing of standards and principles that can guide us in our work in the future. We're working on an agenda that we'll share in advance for input/feedback. For planning purposes, it would be great for ED and DoJ folks to block the full afternoon and for interested WH folks to plan to join us around mid-afternoon. OCR colleagues in other cities, am sure that there will be follow up re whether phone conferencing or in-person attendance makes sense.

    Details to follow.

Thanks.
Art

     

From:

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Anita Hodgkiss

To:

CRT07.WTGATE(''Jeff—Gagne@landrieu.senate.gov@inetg...

Date:

5/26/99 12:24pm

Subject:

Meeting—Reply

    Thanks for your message. It is my understanding that virtually everyone who came last time is coming for the meeting today as well. I have the following quick update for you in response to your questions, this is a brief summary, please call if you need more detail:

    Since the last meeting with you we spent five hours with the Department of Education working through the details of a ''new school/civil rights policy'' guideline for states which the Department of Education will issue. We concur and are prepared to implement a process that provides, within the Civil Rights Division, that review of Charter School issues should include section management at a minimum. We have communicated in writing that we see no problems with one grade expansion as we currently understand to be proposed, with regard to two existing charter schools. We have not made the call to state officials to set a meeting date—I thought the Senator's office wanted to consider whether they should initially facilitate that further dialog. (We have had such meetings in the past.) Please let me know if you need anything else.
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U.S. Department of Justice,
Office of Intergovernmental Affairs,
Washington, DC, July 7, 1999.
Hon. M. J. ''MIKE'' FOSTER, Governor,
State of Louisiana,
Baton Rouge, LA.

    DEAR GOVERNOR FOSTER: This is in response to your June 7, 1999 letter to the Attorney General regarding charter schools in Louisiana. Your letter indicates that your staff and Department of Justice attorneys have met and corresponded on several occasions concerning charter schools and that all concerned are supportive of expediting federal court approval of potential charter schools. However, as you note, we have not developed a mechanism, agreeable to all, to turn these expressions into actions. Your letter suggests a mechanism and requests a meeting between your staff and senior Department officials.

    As you note, the Department and the State have worked cooperatively to reach amicable resolutions of a number of issues, including higher education desegregation. We look forward to continuing our work with your staff on charter schools as well, with the aim of developing a process acceptable to all and consistent with our responsibilities as plaintiff in school desegregation cases throughout the state. In addition, we wish to continue our collaboration with the Department of Education in developing helpful materials for charter school advocates who may have questions about their obligations to comply with civil rights laws.
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    The Attorney General has asked Deputy Assistant Attorney General Anita S. Hodgkiss of the Civil Rights Division and other senior officials to meet with your staff to discuss this matter. We have been working with Senator Landrieu's office and are finalizing dates for a July or August meeting with all relevant stakeholders.

    Thank you for your interest and involvement in this essential matter. We agree with you that all of us share responsibility for the critically important goal of an improved educational system for all students.

Sincerely,

Brian de Vallance, Director.
     


The Secretary of Education,
Washington, DC, August 3, 1999.
Hon. M.J. ''MIKE'' FOSTER, JR.,
Governor of Louisiana,
Baton Rouge, LA.

    DEAR GOVERNOR FOSTER: Thank you for your letter regarding charter school compliance with court-ordered desegregation requirements. I am delighted that we share the common goals of encouraging the creation of high-quality charter schools and seeing that these schools fulfill their civil rights obligations as public schools. With these twin goals in mind, I believe we can facilitate the timely resolution of many of these issues. As you may know, the legal matters associated with Louisiana's parishes under court-ordered desegregation are outside the purview of the U.S. Department of Education. However, we are prepared to work with the Department of Justice in any way that would be helpful to them in addressing these issues. Also, as noted in the response you received from the Department of Justice, our Departments are collaborating on ways to assist charter school developers with the issues you raise.
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    The Department of Education strongly supports the creation of charter schools, both to meet increasing enrollment demands and to foster public school choice. We are ready to aid States, local educational agencies, and community members who are considering charter schools as well as other new schools. That technical assistance includes help in identifying applicable civil rights obligations and in ensuring compliance. With early notice and technical assistance, we believe many new schools will avoid costly delays or challenges.

    The development of new public schools for the purpose of promoting public school choice often serves to enhance educational programs for at-risk students and to promote desegregation. There is no inherent tension between the establishment of these schools and desegregation obligations. We believe that most charter schools opening in areas under court-ordered desegregation plans, and those under voluntary desegregation plans, should be able to comply with those court orders or plans.

    We are prepared to work with you in assisting local educational agencies and other community groups to understand the responsibilities of all public schools not to discriminate in their programs on the basis of race, color, national origin, disability, or sex.

    Department staff have been meeting on this topic to ensure that with respect to charter schools civil rights issues under the purview of the Department of Education are handled in an appropriate and timely fashion. We are dedicated to ensuring compliance with civil rights laws for all public schools, including charter schools. Likewise, we are committed to doing whatever is in our power to support the creation of high-quality charter schools that are accountable for results, and that uphold the principles we maintain for all public schools.
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    I greatly appreciate your endorsement of education as one of our highest priorities, and I congratulate you on your efforts to improve Louisiana's educational system.

Yours Sincerely,

Richard W. Riley.
     

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR.,
et al

AND UNITED STATES OF AMERICA&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;:&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;CIVIL ACTION NO. 56–1662–A

VERSUS

EAST BATON ROUGE PARISH
SCHOOL BOARD, ET AL

CONSENT DECREE

    NOW INTO COURT, through undersigned counsel, come plaintiff, Eugene Davis, et al., plaintiff-intervenors, D'Orsay Bryant, Alphonso Potter and the Baton Rouge Branch of the National Association for the Advancement of Colored People, plaintiff-intervenor, United States of America,. and defendant, East Baton Rouge Parish School Board, who jointly agree and stipulate, subject to court approval, to the following Consent Decree.
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    On or about July 22, 1996, the East Baton Rouge Parish School Board submitted to the parties-plaintiff its plan (hereinafter plan) which the Board asserted was designed to raise and equalize the level of quality of the educational experience provided to the students attending the East Baton Rouge Parish Public School System, reduce the number of racially identifiable schools, stabilize and increase the number of students in the system, increase the number of students enrolled in desegregated schools, and increase interracial exposure among students. Thereafter, the parties entered into discussions of the plan and being desirous of avoiding further protracted litigation and the costs and uncertainties attendant therewith, have agreed to the implementation of the plan, as attached hereto.

    This Consent Decree is issued by the Court in connection with the above captioned case pursuant to the agreement of the East Baton Rouge Parish School Board (sometimes hereinafter referred to as the ''EBRPSS ''), the Baton Rouge Branch of the National Association for the Advancement of Colored People, D'Orsay Bryant, Alphonso O. Potter, and the United States of America, and after all appropriate evidentiary hearings and notices have been provided and accordingly the Court does hereby order as follows:

    The previous orders of this Court are hereby modified to the extent necessary to allow for the implementation of the plan described in detail in the following pages. All prior orders of this Court not inconsistent with this Consent Order remain in full force and effect.

    The details of pupil assignment and related provisions and aspects of the plan are attached hereto as Appendix A, with Exhibits, and incorporated herein by reference.
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1. Community Sensitive Attendance Zones

    The essence of the student assignment portion of this plan is 1) community sensitive attendance zones drawn so as to maximize a sense of community and ownership of the schools; 2) voluntary transfers to allow for more choice among parents who would prefer to send their child to a school with a specialized program or other characteristic that they find more attractive than their community school, and 3) the achievement of educational equity for racially identifiable black schools.

2. Implementation

    A. A 1993 facilities study established that a minimum of $67,507,500 is required to bring the physical facilities of the EBRPSS's schools into compliance with all codes and current needs, without taking into consideration inflation. Of this amount, $23,403,700 is required, to bring the physical facilities of the racially identifiable black schools into compliance with all codes and current needs, without taking into consideration inflation, modifications necessary as a result of this plan, and appropriate federal case law. The EBRPSS acknowledges its legal obligation under this Consent Decree to take necessary and reasonable steps to make. the repairs and/or replacements to racially identifiable black schools. The parties agree and acknowledge that ''necessary and reasonable steps'' for purposes of this paragraph shall include but are not limited to seeking sources of revenue which are not presently recurring in nature.

    B. The Court and the parties understand the inherent difficulties with financial projections; still, the Court and the parties understand that adequate funding must be made available to ensure the success of this plan.
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    The Court and the plaintiffs emphasize that, by establishing the link between educational enhancement and effective desegregation, the School Board has requested the opportunity to achieve the desegregation of the public schools of East Baton Rouge Parish through an ambitious plan. Because the School Board has urged the Court and plaintiffs that such a plan may be a practicable method of ultimately desegregating this public school system, the Court and the plaintiffs will not accept any excuse related to lack of funding. In approving this plan, the Court orders the School Board to implement the plan and to provide the requisite financing for its success. The School Board may not urge the Court and the plaintiffs to approve a desegregation plan and then avoid implementing that plan because of a lack of funding. The full implementation of this plan requires the appropriation of not less than 3 million dollars during each of the first three years and a substantial increase thereafter for the remaining years of the life of this Consent Decree for the enhancement of the racially identifiable black schools.

3. Facility Enhancements

    The EBRPSS will appropriate not less than $600,000 annually for the first three years and thereafter, for the life of this agreement, the EBRPSS will appropriate not less than one million dollars a year for the purpose of effecting necessary enhancements at racially identifiable black schools. This sum will be expended in accordance with the recommendations of the physical facilities monitor discussed hereinbelow, and is in addition to sums otherwise budgeted by the EBRPSS for maintenance and repair to school facilities.

4. Enhancement of Racially Identifiable Black Schools

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    In no event shall the combination of the finances for facility enhancement at the racially identifiable black schools, the enhancement of faculty at racially identifiable black schools, and the IEA Account amount to less than $3,000,000.00 for any given school year for the first three years and subsequent thereto the amount shall be substantially increased for the remaining life of the plan.

    The EBRPSS will dedicate not less than $1,500,000.00 in each of the first three years of the plan for the purpose of supplementing the faculty at the racially identifiable black schools in order to ensure that the pupil teacher ratio in those schools is in no event higher than the pupil teacher ratio in the racially identifiable white schools and/or providing enhanced (y) factor compliments at each racially identifiable black school—such as a school nurse, a social worker, a primary reading specialist, and a teacher for instructional strategy.

5. Staffing and Assignment for Equity and Compliance with Singleton

    To achieve a balance of staff across the school system, provide equity in staffing as a function of resource allocation, ensure compliance with all applicable laws, reduce faculty attrition, and achieve the closest approximation possible for the ideal faculty configuration,

 Every school will be allocated an equal number of regular education positions based on projected student enrollment (x) to guarantee that pupil teacher ratios for regular education positions at racially identifiable black schools, white schools, and desegregated schools, will be equal. The pupil teacher ratio of special education classes located at racially identifiable black schools shall not be included in the computation of the pupil teacher ratio for racially identifiable black schools.
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 Some schools will be allocated additional positions based on an analysis of several factors: percent of students identified as ''at risk'' for failure, racial composition of student body, the number of students eligible for free and reduced lunch, safety and security of school, and campus configuration and condition of facility (y). It is anticipated that four positions (two instructional and two technical) will be added at each racially identifiable black school. The EBRPSS will fund these positions at a cost estimated at approximately 1.2 million annually.

 Compliance with any obligations in connection with Singleton v. Jackson Municipal Separate School District. 419 F. 2d 1211 (5th Circuit 1969) and its progeny, to the extent required and allowed by law, will be monitored with a goal of reaching compliance within three years, plus or minus 15 percentage points.

 Action plans will be developed to achieve the school's ideal faculty profile including unique assignment patterns and long-term assignment agreements in exchange for additional training and development opportunities. All action plans will be prepared so as to comply with all applicable laws.

 The staffing and assignment plan will be reviewed annually for effectiveness.

Staff Development/Recruitment

    1. The district will require faculty and staff to undergo training for conducting peer group interviews in the selection of the new teachers.

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    2. The district will actively recruit teachers by attending recruitment days at each applicable Louisiana college and university and will actively recruit from other colleges and universities in the South.

    3. Student teachers assigned through the Professional School Development Model Partnership to receiving inner city schools will receive training in teaching a racially diverse student population in this setting.

    4. The district will institute a system of master teacher mentors during the first three years of teaching.

    5. The district will provide intensive training in the area of multicultural sensitivity and awareness as called for in the East Baton Rouge Parish School System's Staff Development Plan.

    6. The district will provide intensive training in the area of communication and interpersonal skills (for example, conflict resolution and anger management).

    7. The district will provide training to receiving schools in marketing and public relations.

6. Monitoring and Accountability Panel

    A panel to consist of two members agreed upon by the parties and approved by the Court shall be appointed for the purpose of evaluating the facilities and the educational programs at the racially identifiable black schools. In the absence of an agreement between the parties, the Court will make the appointments. The school system shall be responsible for all reasonable fees and expenses of the members of the panel.
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    One member of the panel shall be appointed to evaluate physical facilities at each racially identifiable black school and develop a report describing the physical facilities at each such school. The report shall make recommendations as to necessary enhancements. The report will be filed with the parties and the Court within 150 days of the appointment.

    Should the school system object to any finding or recommendation in the report, it shall make such objections to the Court and the parties within 45 days of receipt of the report.

    The other monitor shall be appointed to evaluate the educational programs, and the technological and resource needs of the racially identifiable black schools, and develop a report describing such needs at each such school. The report will be filed with the parties and the Court within 150 days of the appointment.

    Should the school system object to any finding or recommendation in the report, it shall make such objections to the Court and the parties within 45 days of receipt of the report.

    Commencing in school year 1997 and thereafter, the above described reports will be filed with the Court and the parties during December of each such year.

7. Temporary Buildings/Emergency Teaching Stations

    The EBRPSS plan requires the use of temporary buildings in order to provide adequate teaching stations for school enrollments projected in the Plan. The use of temporary buildings, as envisioned under the plan, will permit the school system to discontinue the use of emergency teaching stations effective the beginning of the second semester of the 1996–97 school year.
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    The parties acknowledge that temporary buildings will be moved from one school to another for purposes of implementing the first year of the plan. The parties further acknowledge that in subsequent implementation years, the plan envisions a need to move temporary buildings. Prior to the movement of temporary buildings in such subsequent implementation years, the EBRPSS will provide a report to the Court and the parties setting forth the site from, and to which temporary buildings will be moved, certify that the temporary buildings will be used for purposes of implementing the plan, certify that the temporary buildings will further desegregation, and further certify that sending and receiving sites will not make use of emergency teaching stations. The EBRPSS will not move temporary buildings without the expressed approval of the court.

    Court approval will be required for other uses of temporary buildings. Court approval will be required to increase the number of temporary buildings in the school system. The EBRPSS, in recognition of this Court's previous order relating to temporary buildings, commits to reducing if not eliminating the use of temporary buildings. Therefore, by the fifth year of this plan the EBRPSS commits to eliminate one third of the current number of temporary buildings and by the eighth year to eliminate at least seventy-five percent of the current temporary buildings.

8. General Provisions

    (a) No new school shall be constructed, nor shall any addition to an existing school be constructed, without approval of the Court.

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    (b) No school shall be closed without approval of the Court.

    (c) No closed school shall be reopened without approval of the Court.

    (d) No alteration in community sensitive attendance zones shall be accomplished without approval of the Court.

    If the proposed enrollments after transfers and returns to a school are exceeded, then Court approval will have to be obtained in connection with the same. The EBRPSS will be required to obtain this approval no later than 15 school days subsequent to the beginning of each semester.

    For the purposes of this plan, a desegregated school is one which has a racial composition within fifteen percentage points above or below the system-wide student ratio at the grade levels served by that school. The lack of success in attaining the plus or minus 15 percentage points of the system-wide ratio at any given school in and of itself shall not be deemed a failure. The EBRPSS commits to the elimination of 14 racially identifiable schools by the end of the third year of implementation of this plan.

    Notwithstanding any other provisions of this order, the EBRPSS agrees that by the end of the completion of the third year after the implementation of this plan, substantial improvement towards the goal of equality of educational opportunities, reduction of racial isolation, and stabilization for the purposes of future desegregation in the school system must have been made, and it is understood that if such improvement is not undertaken as of that time the Court may order the implementation of a desegregation plan utilizing traditional desegregation methodologies.
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    The school district may unilaterally move for unitary status upon the conclusion of the eighth school year following the implementation year of the plan. At any time after the conclusion of the fifth school year following the initial implementation of the plan, a joint motion for unitary status may be filed by all of the litigants with the Court.

    The plaintiffs reserve the right to request an award of attorneys' fees. The EBRPSS reserves all rights to contest any request for an attorneys' fees award.

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, March 5, 1998.
CHARLES L. PATIN, JR., Esq.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman,
Baton Rouge, LA.

Re: Davis, et al, and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MR. PATIN: Pursuant to our telephone conversation on February 27, 1998, this is written in reference to the charter schools operating in East Baton Rouge Parish.
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    It has been brought to my attention through an article appearing in the February 27th edition of the Baton Rouge Advocate that the East Baton Rouge Parish School Board has approved three charter schools for operation within East Baton Rouge Parish. In order that we may assess the impact, if any, of the operation of the charter schools on the East Baton Rouge Parish School Board's ability to fulfill its obligations under the extant Consent Decree and applicable federal desegregation case law; please provide specific information describing the relationship of each charter school to the East Baton Rouge Parish School Board. Additionally, please provide the following information separately for each charter school;

 (1) the name of the charter school;

 (2) the location of the charter school;

 (3) the date on which the charter school was approved by the East Baton Rouge Parish School Board;

 (4) the date on which the charter school commenced operation;

 (5) the grade configuration of the charter school;

 (6) the enrollment by race of each charter school for each year of operation;

 (7) identify the administrator of each charter school;

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 (8) describe any and all assistance, in whatever form, the East Baton Rouge Parish School Board has provided each charter school for each of the charter school's operation;

 (9) provide any and all evaluations which the East Baton Rouge Parish School Board may have generated with reference to each charter school;

(10) provide a copy of the charter for each charter school;

(11) provide a description of the role of the East Baton Rouge Parish School Board, if and, in the enrollment/admission/matriculation of students to each charter school; and

(12) provide a description of the reasons utilized by the East Baton Rouge Parish School Board to support the approval of each charter school.

    Should you have any questions concerning this letter, please do not hesitate to contact me.

Sincerely,

Franz R. Marshall, Trial Attorney.

cc:

Robert C. Williams, Esq.
Alvin Washington, Esq.

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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, June 3, 1998.
MICHAEL C. GARRARD, Esq.,
CHARLES L. PATIN, JR., Esq.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MR. GARRARD: This is written pursuant to our previous telephone conversations concerning the school board's request that the plaintiffs evaluate the charter school proposal submitted by the Children's Charter School, Inc. in comparison with the extant applicable federal desegregation law, the extant consent decree, and the school board's responsibilities and obligations thereto.

    As I have indicated previously, it is the United States' position that each charter school must receive federal court approval prior to operation since each charter school operates under the imprimatur of the East Baton Rouge Parish School Board and receives public funds. Additionally as I have indicated previously, in considering the propriety of the approval of a charter school the Court's and the plaintiffs, overarching concern will be the impact of the charter school(s) on the school board's ability to fulfill its obligations under federal desegregation law and the consent decree, both individually and collectively where more than one exists, to convert to a unitary school system. It is in that context that I raise the areas of inquiry set forth below.
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    (1) Initially, several provisions of the Children's Charter School proposal and the corresponding contract between the charter school and the Board indicate an agreement on the part of the charter school administrators to comply with applicable federal law and the ''court-ordered desegregation plan in effect for the city or parish school system''; the wording raises concern on my part of whether the charter school administrators have reviewed and understand that the extant desegregation plan as encompassed in the extant consent decree is applicable to the entire East Baton Rouge Parish School System and that a separate school system for the City of Baton Rouge does not exist. More importantly, I trust that the East Baton Rouge Parish School Board understands that notwithstanding such provisions and in light of the Board's approval the obligations and responsibilities of the Board pursuant to the applicable law and the consent decree are not delegable to the charter school. A violation of the applicable law and/or the consent decree at the charter school is viewed as a violation by the Board.

    (2) The proposal fails to describe the specific criteria which will be utilized to determine admission or enrollment. if the number of applicants exceeds capacity, what will be the basis of determining which students will be admitted.

    (3) Please reconcile section 2 on page 2 (The proposed school will serve a minimum of 71% ''at risk'' students.) and section 4 on page 6 (Of the students attending the School at least 64% will be ''at risk'' . . .) of the 5/21/98 proposal with La. R.S. 17:3991 (B) (1) (a) .

    (4) Please explain the methodology to be utilized in determining the composition of classes as referred to on page 7 of the 5/21/98 proposal. Additionally, compare the methodology used with the commonly used ability grouping concept.
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    (5) Please clarify the charter school's policies with respect to the provision of transportation and food service especially as they affect special needs(education) students for whom transportation is a special need and students whose ''at risk'' status is derived in part or in whole by participation in the breakfast and/or free and reduced lunch program.

    (6) Please explain Appendix S to the 5/21/98 proposal with respect to the revenue sources; what constitutes the EBRPSS per pupil funding and the Title I per pupil funding.

    (7) Please provide an impact assessment of the loss of any and all federal, state, local, and privately generated funds as a .result of the operation of the charter school proposed in the 5/21/98 proposal as well as all other board approved charter schools

    (8) Please explain the Ending Fund Balance entry and specify the entity that will be required to subsume the apparent yearly deficit.

    If you should have any questions concerning this letter, do not hesitate to contact me.

Sincerely,

Franz R. Marshall, Trial Attorney.

cc:

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Robert C. Williams, Esq.
Alvin Washington, Esq.

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, June 17, 1998.
MICHAEL C. GARRARD, Esq.,
CHARLES L. PATIN, JR., Esq.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MR. GARRARD: This written in reference to my letter to you dated June 4, 1998, your fax to me dated June 11, 1998, containing the letter from Ms. Dawn Guillot, your letter to me dated June 12, 1998, and our telephone conversation on June 15, 1998; all of which concerned the extant proposal to operate The Children's Charter School.

    As I indicated previously and during the instant telephone conversation, in order that I may fully evaluate the instant charter school proposal I require an impact assessment of the effect the operation of the charter school on the East Baton Rouge Parish School Board's ability to fulfill its commitments under the Consent Decree and applicable federal law. As I have indicated, the assessment should address the impact, inter alia, from a financial and a desegregation point of view. Additionally, your June 12th letter at page 3, contains a reference to ''Federal SFS Allocations,'' please define that phrase. Further, if that phrase does not include all special education and/or Title I funds, please describe those fund amounts. As I also indicated, the June 15th edition of the New Orleans Times-Picayune newspaper carried a story indicating the all special education students across the state were federally funded at the rate of $504 per student, please reconcile that figure with the information thus far provided.
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    Should you have any questions concerning this letter, as always, do not hesitate to contact me.

Sincerely,

Franz R. Marshall, Trial Attorney.

cc:

Robert C. Williams, Esq.
Alvin Washington, Esq.

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, September 2, 1998.
Mr. ROLFE H. MCCOLLISTER, Publisher,
The Greater Baton Rouge Business Report,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MR. MCCOLLISTER: This is in response to your letter of July 9, 1998, addressed to Attorney General Janet Reno, in which you enclosed an editorial that you wrote regarding the creation of the United Charter School at Bon Marche. Your letter has been referred to this office for response.
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    The Department of Justice shares your desire to ensure equal educational opportunities for our children. In 1996, the Louisiana legislature passed legislation authorizing the creation of charter schools throughout the state. The legislation allows charter schools to operate separately from local school boards once approved by either the local school board or the State Board of Elementary and Secondary Education. Because charter schools are exempt from a significant number of state statutes, the legislation requires that the charter school operate consistent with all applicable desegregation plans and laws.

    The East Baton Rouge Parish School Board is a defendant in a longstanding school desegregation lawsuit. In 1996, in an effort to resolve a number of outstanding issues, the plaintiffs joined with the school board in a consent agreement which, if properly implemented, will move the district to unitary status. All parties to the lawsuit must abide by applicable federal law, including desegregation obligations. While you have expressed concern that little consideration was given to your proposal to establish a charter school, I assure you that is not the case. I have personally reviewed the case, and am confident that the attorneys in the litigation are acting appropriately to enforce laws designed to ensure equal educational opportunity for children. During this process, Franz Marshall has worked tirelessly to solicit the views of parents, community leaders and others who have an interest in this important matter.

    The United States has sought additional information from you about whether the operation of the charter school would impede the desegregation process of the school board.

    We do not seek to impede the creation of state-approved charter schools, but merely to enable us to make the necessary determination that the school's operation would be consistent with all applicable desegregation plans and laws.
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    We hope that you can provide that information as soon as possible.

Sincerely,

Thomas Perez, Deputy Assistant Attorney General.
     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, February 5, 1999.
CHARLES L. PATIN, JR., ESQ.,
MICHAEL C. GARRARD, ESQ.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MESSRS. PATIN AND GARRARD: This is written in reference to an article in the February 4, 1999 edition of the Baton Rouge Morning Advocate. The article reported the comments of several board members regarding the expansion of the charter schools which the Board has approved to operate in East Baton Rouge Parish.

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    As you will recall, on February 3, 1999, I had a conversation with Mr. Garrard concerning the Board's proposed motion seeking approval of the continued operation of three charter schools (Community School for Apprenticeship Learning, The Children's Charter School, and J.K. Haynes Elementary Charter School) which the Board approved for operation in 1996. The three charter schools opened without notice to the parties or approval of the Court. During our Conversation I reiterated, to Mr. Garrard, that the United States would not oppose the motion in light of the following factors and under the following conditions:

Factors:

    1. The student enrollment in each charter school is relatively small, and

    2. While the Board certified the operation of the charter schools without court approval, the charter schools have operated for three years and the United States believes to seek disestablishment of the schools would create a hardship for the students enrolled therein.

Conditions:

    The motion and proposed order will be modified as follows:

    1. The student enrollment provided for each school shall be disaggregated by race

    2. The location specified for each school shall not be changed without approval of the court,
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    3. The respective enrollments of the schools shall not be expanded without approval of the court,

    4. An appropriate Board/school system official shall execute an affidavit attesting that an evaluation has been performed and a determination made by said official that the operation of the respective charter school will not impede the Board's ability to fully implement the extant consent decree and comply with applicable federal desegregation case law both as to student assignment and financial allocation, and

    5. The Board shall include in its Hinds County Reports the student enrollment for each charter school by race and the number of students by race identified for each sending school or parish school the students would have attended had they enrolled in the parish school system.

    Once the pleadings have been conformed to the specified conditions and filed the United States will file an appropriate response.

    Should you have a question concerning this letter do not hesitate to contact me.

Sincerely,

Franz R. Marshall, Senior Trial Attorney.

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cc:

Robert C. Williams, Esq.
John K. Pierre, Esq.

     

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR.,
et al.,
Plaintiffs

and

UNITED STATES OF AMERICA
Plaintiffs-Intervenors        C.A. NO. 56–1662–A

v.

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,
Defendants.

OPPOSITION OF THE UNITED STATES TO MOTION TO INTERVENE
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    The United States, plaintiff-intervenor herein, opposes Children's Charter, Inc.'s Motion To Intervene, filed on February 23, 1999. At issue is whether Children's Charter should be permitted to intervene in this school desegregation lawsuit to participate in any proceedings concerning a charter school approved by the defendant School Board, which is the subject of a motion for court approval filed by the Board. Movant, without citing any supporting facts, asserts that it is entitled to intervene solely on the basis that it is a party to that contract. As explained below, the Court should deny intervention because movant fails to satisfy the legal requirements for either intervention of right or permissive intervention.

I. BACKGROUND

    On February 3, 1999, the Board filed a ''Motion in Connection with Charter School Contract.'' The motion states that the Board on June 1, 1998 approved a ''charter school contract'' with movant, which provides in part that it ''shall not be effective unless and until the same is approved by [this Court].'' The motion seeks court approval for the creation of a charter school as a public school operated by Children's Charter within the public school attendance zones of the East Baton Rouge Parish School System. At the same time, the Board filed a ''Motion for Exceptions to Local Rules and for Status Conference.'' In that motion, the Board requested, and obtained, an order relieving it from scheduling the charter school motion for hearing, and instead scheduling a status conference to discuss the motion. See 2/19/99 Order at 1.

    The Court held a status conference on February 18, 1999. Movant initially sought, and received, permission to participate in that status conference. On February 23rd, movant filed a motion to intervene pursuant to Rule 24 of the Federal Rules of Civil Procedure and a request for expedited consideration of its motion. Movant's stated interest in intervening is as the sponsor and operator of the proposed charter school.
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II. DISCUSSION

A. Expedited Consideration of Movant's Intervention Request Is Not Merited.

    As an initial matter, the United States believes that there is no good reason for expediting consideration of the motion to intervene. The only reason offered by Children's Charter for requesting an expedited hearing is ''to participate in hearings concerning the 'Motion in Connection with Charter School Contract' filed by the East Baton Rouge School Board.'' Movant, however, ignores the fact that the School Board has not yet requested a hearing on its motion for charter school approval. Thus, there is no reason to expedite a hearing on Children's Charter's motion to intervene because no charter school approval hearing has been scheduled.

    Nor is it likely that a hearing on the School Board's motion would occur prior to April 16, 1999, the originally scheduled hearing date. At such time as the School Board's motion might be placed on the active docket, the plaintiff parties would be allowed sufficient time to conduct relevant and appropriate discovery to develop a cogent response and, if necessary, to prepare adequately for an evidentiary hearing. Therefore, any hearing that might be scheduled would in all probability be scheduled subsequent to April 16, 1999.

B. Movant Is Not Entitled to Intervention of Right.

    Federal Rule of Civil Procedure 24(a) permits a party to intervene (1) ''upon timely application'' when (2) ''the applicant claims an interest relating to the property or transaction which is the subject of the action;'' (3)''the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest;'' and (4) ''the applicant's interest is [not] adequately represented by existing parties.'' See Diaz v. Southern Drilling Corp., 427 F.2d 1118, 1124 (5th Cir. 1970), cert. denied, 400 U.S. 878 (1970); United States v. Perry County Board of Education, 567 F.2d 277, 278–279 (5th Cir. 1978).
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    Movant asserts that it may intervene as of right because ''as a party to the contract to be reviewed by this Court, . . . any disposition of the School Board's Motion directly affects the interests of Children's Charter.'' Movant's Memorandum in Support of Motion to Intervene at 2.

1. Movant's Request Is Not Timely.

    Intervention of right, as well as permissive intervention (which is discussed below), require a timely application to the court. The timeliness of an application for intervention revolves around two factors: how long the proposed intervenor was aware of its interest in the case, and the harm of prejudice to the existing parties that results from the failure to move promptly. Trans World Airlines, Inc. v. Mattox, 712 F.Supp. 99 (W.D. Tex. 1989), aff'd, 897 F.2d 773 (5th Cir. 1990). Movant has suggested, in discussions with plaintiffs, that it seeks to intervene in order to ensure that the proposed charter school, if approved by the Court, can open in time for the 1999–2000 school year. If that is in fact movant's intent, then its request for intervention is untimely.

    Movant acknowledges that it has been aware of the need to obtain court approval of the charter school contract since June 1, 1998, yet has waited over eight months before requesting intervention. Movant, however, fails to specify the reason for the delay. It merely asserts that the motion to intervene is timely because the School Board did not file its motion until February 3, 1999. However, movant fails to indicate whether the Board had been requested to file the motion earlier and refused to do so, or to indicate why it failed to seek intervention at an earlier date. The circumstances here demonstrate that movant became aware of its purported interest by June 1, 1998, at the latest. Movant simply sat too long on any right it may have had.
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    Additionally, the parties would be prejudiced if movant was permitted to intervene to seek approval of the proposed charter school in time for the 1999–2000 school year. As explained above, any hearing on the charter school issue will require discovery and an evidentiary presentation to the Court. In the short term, this discovery and case preparation will divert time and resources that should be used to address issues that lie at the core of this desegregation lawsuit. These issues include implementation of the tax plan approved last November in a manner consistent with the Board's desegregation obligations, the Board's plan to reduce the number of temporary buildings in use throughout the School System, and the Board's plan with respect to segregated schools with oversubscribed enrollments. To the extent that the parties are not able to resolve these issues on their own, discovery and evidentiary hearings will likely be necessary in order to present the issues to the Court for resolution. Consideration of these issues—which are central to the Board's ongoing desegregation efforts—should take precedence over the issues presented by the proposed charter school.

2. Movant's Has No Legally Protectable Interest in this Desegregation Lawsuit, and Its Interest in the Proposed Charter School Is Adequately Represented by the Board.

    As the Court is well aware, the subject matter of this litigation is the desegregation of the East Baton Rouge Parish School System and the Board's compliance with this Court's desegregation orders, including the 1996 consent decree. Movant has failed to demonstrate an interest in desegregation or in defendants' compliance with this court's orders. Indeed, nowhere in its motion does Children's Charter even mention the term ''desegregation,'' much less address it.

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    In Perry County, 567 F.2d at 279 (emphasis added), the Fifth Circuit Court of Appeals defined the nature of the interest that would warrant intervention:

There is no clear-cut test to determine the nature of the interest required for intervention of right. Our inquiry is ''a flexible one, which focuses on particular facts and circumstances surrounding each application,'' and this type of intervention'' must be measured by a practical rather than technical yardstick.'' United States v. Allegheny-Ludlum Indus[tries], Inc., 517 F.2d 826, 841 (5th Cir. 1975), cert. denied, 425 U.S. 944 * * * (1976). * * * As we said in Diaz v. Southern Drilling Corp., supra at 1124, intervention still requires a 'direct, substantial, legally protectable interest in the proceedings.'

    In the context of school desegregation lawsuits, entities seeking to intervene must demonstrate an interest in the desegregation of the school system at issue. Hence, in establishing a ''legally cognizable interest'' in a desegregation case, a motion for intervention must frame the precise issues the applicant seeks to represent and the ways in which the goals of a unitary school system have been frustrated by the current parties' action. Hines v. Rapides Parish School Board, 479 F.2d 762 (5th Cir. 1973).

    Here, movant's proffered interest in this lawsuit is in creating and operating a charter school in East Baton Rouge Parish. We do not deny that Children's Charter may have an interest in its contract with the Board and that, if the Court does not approve the proposed charter school, then that contract may be void. But the validity of the contract between Children's Charter and the Board is not at issue here. Rather, the relevant inquiry is how operation of the charter school will affect the Board's ability to desegregate the school system and to comply with applicable federal law, including this Court's order implementing the 1996 consent decree. Claiming an interest in the operation of a charter school located in East Baton Rouge Parish falls well short of a ''direct, substantial, legally protectable interest.'' To the contrary, movant has not shown any legally protectable interest in the proceedings at issue here requiring the defendants to consider and undertake all further desegregation steps which are necessary.
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    Furthermore, even if movant's interest in operating a charter school was sufficient to justify intervention, the existing parties in the case will adequately represent this interest. Movant neither offers any reason as to why the Board cannot adequately represent movant's interest, nor does movant assert that the Board will not adequately represent movant's interest. Rather, movant acknowledges that the facts of this case suggest that its interests will be represented adequately by the Board. See Memorandum in Support of Motion to Intervent at 2. We agree, since the Board and movant share the same interest: court approval of the proposed charter school. That fact alone should be dispositive. See, e.g., Bush v. Viterna, 740 F.2d 350, 355 (5th Cir. 1984) (''when the party seeking intervention has the same ultimate objective as a party to the suit, a presumption arises that its interests are adequately represented, against which the petitioner must demonstrate adversity of interest, collusion, or nonfeasance'').(see footnote 60)

    The Board has approved the charter school contract and has submitted it to the Court for approval. One must presume, absent evidence to the contrary, that the Board will support its motion and will advocate for judicial approval of the charter school. And, in advancing its motion, the Board can explain, as will be its burden, how the creation and operation of the proposed charter school permits the Board to meet its desegregation obligations under federal law, this Court's desegregation orders, and the 1996 consent decree.(see footnote 61)

C. Movant Is Not Entitled to Permissive Intervention

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    Movant's case for permissive intervention is no more persuasive. Federal Rule of Civil Procedure 24(b) permits intervention ''when an applicant's claim or defense and the main action have a question of law or fact in common.''

    As is true with respect to Rule 24(a), the movant fails to provide any facts or legal authority to support a motion for permissive intervention under Rule 24(b).

    As explained above, movant's intervention request is untimely. Furthermore, as explained above, there is no commonality as to the issues involved in this case and the movant's desire to create a charter school. Movant misconceives and misapplies the holding in Rivers v. Califano, 86 F.R.D. 41 (S.D.N.Y. 1980). See id. at 44 (permitting intervention where proposed intervenors were represented by same counsel as plaintiff, request was timely, claims of plaintiffs and proposed intervenors were the same, and proposed intervenors were made class representatives along with plaintiffs).

    Thus, the movant has failed to meet the standards to support permissive intervention.

III. CONCLUSION

    Based upon the discussion above, the United States urges the Court to find that movant has failed to show, as it must, any of the following: a timely request for intervention, a ''legally cognizable interest'' in the present action, or any interest that is not adequately represented by the existing parties. The failure to show any one of these criteria is fatal to movant's request to intervene as of right. Additionally, movant has failed to establish grounds upon which permissive intervention under Rule 24(b) can be granted. Therefore, the motion to intervene fails to satisfy the requirements of Rule 24 of the Federal Rules of Civil Procedure, and the United States respectfully requests that the motion to intervene be denied.
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Respectfully submitted,

L.J. Hymel, Jr., United States Attorney,
Anita Hodgkiss, Deputy Assistant Attorney General,
  Civil Rights Division,
Franz R. Marshall and
Javier M. Guzman,
U.S. Department of Justice,
  Educational Opportunities Litigation Section.

Dated: March 8, 1999

CERTIFICATE OF SERVICE

    I hereby certify that on this 8 day of March, 1999, I served copies of the foregoing pleading to counsel of record by Federal Express, addressed to:

Robert Williams, Esq.
3815 Fairfields Avenue
Baton Rouge, LA 70802

Alvin Washington, Esq.
A.A. Lenoir Building
Southern University
1st Floor, Room 116
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Baton Rouge, LA 70821

John Pierre
Southern University Law Center
Roosevelt-Steptoe Building, Room 261
Baton Rouge, LA 70813

Charles L. Patin, Jr., Esq.
Michael C. Garrard, Esq.
Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, LLP
P.O. Box 3513
Baton Rouge, LA 70821

Maxwell G. Kees, Sr., Esq.
General Counsel
East Baton Rouge Parish School Board
1050 South Foster Drive
Baton Rouge, LA 70806

John O. Shirley, Esq.
John O. Shirley & Associates
2354 S. Acadian Thruway, Suite F
Baton Rouge, LA 70808


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Javier M. Guzman.
     


U.S. Department of Justice,
United States Attorney,
Middle District of Louisiana.
Facsimile Cover Sheet

Date: March 25, 1999

To: Javier Guzman
From (Sender): L. J. Hymel
No. of pages following cover sheet: 4

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

Filed U.S. Dist. Court, Middle Dist. of LA, 99 Mar 24 PM 3:57

CLIFFORD EUGENE DAVIS, JR.,
et al.,

and

UNITED STATES OF AMERICA&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;CIVIL AACTION NO. 56–1662–A

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versus

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,

RULING ON MOTION TO INTERVENE

    This matter is before the court on a motion by Children's Charter School (doc. no. 1006) to intervene. The motion has been heard on an expedited basis and has been submitted upon the filing of briefs. The East Baton Rouge Parish School Board has filed a short response ''in support'' of the motion to intervene. The United States, plaintiff-intervenor, has filed an opposition. Children's Charter School has filed a reply brief. There is no need for oral argument or an evidentiary hearing.

    Children's Charter School seeks to intervene either of right or by perm6ission' under Fed. Rule Civ. P. 24. To be allowed to intervene of right, movers must meet all of the following requirements:

(1) the application must be timely;

(2) the applicant must have an interest relating to the property or, transaction that is the subject of the action;

(3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede its ability to protect its interest; and
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(4) the applicant's interest must be inadequately represented by the existing parties to the suit. Sierra Club v. Espy, 18 F.3d 1202 (5th Cir.1994).

    Children's Charter School claims to have an interest relating to the ''transaction which is the subject of the action'' because it is a party to a contract that has been submitted to this court by the School Board for approval. More specifically, Children's Charter School entered into a contract(see footnote 62) with the School Board relating to a proposed charter school to be opened in Bon Marche Mall. According to Children's Charter School, any disposition of the motion for approval of the contract will directly affect its interests as a party to the contract. While Children's Charter' School recognizes that its claims,''are virtually, identical to those of the School Board'', it nevertheless contends that it should at least be afforded permissive intervention to protect its interests under the contract.

    In opposition, the United States argues that the request is not timely made. Additionally, the government argues that the proposed, intervention would prejudice the original parties by diverting their time and resources from the ''core'' matters of this desegregation lawsuit, including implementation of the tax plan approved last November.

    The court finds no merit to the application for intervention ''of right.'' Children's Charter lacks a direct interest in the transaction or subject matter of this desegregaton case. Mover cites no authority for allowing intervention of right based upon a tangential interest, such as the contract interests it claims here. In the context of a desegregation case, the jurisprudence requires a proposed intervenor to demonstrate an interest in the desegregation of the school system. The mover must identify the precise issues which it seeks to present so that the court may determine whether those issues have been previously raised by the parties. Calhoun v. Cook, 487 F.2d 680 (5th Cir. 1973); Hines v. Rapides Parish School Bd., 479 F.2d 762 (5th Cir. 1973). Not only must the mover bring new issues to the court, those issues must be related to desegregation and the establishment of a unitary school system. U. S. v. Perry County Bd. of Ed., 567 F.2d 277 (5th Cir. 1978).
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    Complying with all of these factors is well nigh impossible for Children's Charter School to accomplish, in view of the Consent Decree which was submitted to the court by all parties and approved by the court on August 1, 1996. The Board is presently implementing the Consent Decree and under its terms is making significant progress toward attaining a unitary public school system in East Baton Rouge Parish.

    Additionally, the application for intervention of right is deficient inasmuch as Children's Charter has failed to show that its interests are inadequately represented by the School Board. Indeed, Children's Charter concedes that its interests are ''virtually identical'' with that of the School Board and there is no suggestion that the School Board cannot adequately represent the interests of the parties to the contract as far as court,'approval or disapproval of the Contract is concerned.

    The alternative request for permissive intervention is a matter committed to the discretion of the court. Rule 24(b) specifically requires the court to consider, ''whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties''. The court finds that the United States has raised valid concerns regarding the delay and prejudicial effect of allowing Children's Charter to intervene.

    Accordingly, the motion by Children's Charter (doc. no.1006) to intervene is hereby DENIED.

    Baton Rouge, Louisiana, March 24,1999.

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JOHN V. PARKER,
UNITED STATES DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
     

DR. PERCY BATES

DR. WILLIAM M. GORDON

May 4, 1999

To:

The Honorable John Parker
Dr. Gary Mathews
Mr. Michael Garrard
Mr. Maxwell Kees
Mr. Franz Marshall
Mr. Charles Patin
Mr. John Pierre
Mr. Robert Williams

From:

Dr. Percy Bates
Dr. William M. Gordon
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RE: Children's Charter School

    We have been asked to make a recommendation concerning the addition of a fourth grade to the Children's Charter School.

    This school was founded in 1997–98 and presently houses 78 students (75 black, 3 Asians) in grades K–3. It was opened as a school-within-a-school at the University Terrace Elementary School. In 1998–99 the school was moved into a new facility consisting of two large modular buildings and a small staff. The present location of the school is approximately one and a half miles from the University Terrace school. There are four classrooms in the school. Each classroom has a fully certified teacher, a non-certificated teaching assistant, and a volunteer aid. There is a full-time director, secretary, tutor, custodian, and part-time time-out coordinator.

    There is a second charter elementary school, J.K. Haynes. This school was also founded in 1997–98. It presently houses 81 (80 black, 1 white) students and is located in its own facility at 356 East Blvd. There are five classrooms in the school, PreK–3. Each classroom has a fully certified teacher, a non-certificated teaching assistant, and a volunteer aid. There is a full-time director, secretary, and a part-time custodian.

    The Court Monitors visited the Children's Charter School on May 4, 1999. Each classroom was observed while instruction was being provided. The classrooms were well equipped and the instruction appeared to be well organized. There has been no formal evaluation to determine if the goals of the school are being met.
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    The request to add a fourth grade for the 1999–00 school year has educational merit because it will allow the children already in the program to remain there in an articulated elementary program.

    There are some problems associated with the addition of grades, because there are presently two elementary charter schools operating in the District. Children's Charter has four grades K–3 and J.K. Haynes has five grades PreK–3. Assuming Children's Charter and J.K. Haynes will want to increase their offerings through fifth grade the following year means the District will be adding two fourth grades in 1999–00 and two fifth grades in 2000–01 for a total of 80 additional students.

    We were impressed with the activities, the performance of the students, and the staff at the Children's Charter School. We feel that the addition of the fourth grade is justified educationally and we can support this proposal, however our recommendation is predicated upon approval of all involved parties and the court. Mr. Marshall in his February 5, 1999 letter (copy attached) to Mr. Patin and Mr. Garrard indicated he would not agree to an expansion of the charter schools beyond their present configuration. Thus, we feel this is a matter that needs to be brought to the attention of the Court before any decision is made concerning the addition of the additional grades.

Very truly yours,

Dr. Percy Bates,
Dr. William M. Gordon.

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Enclosure:

U.S. Department of Justice,
Civil Rights Division,
Washington, DC, February 5, 1999.
CHARLES L. PATIN, JR., Esq.,
MICHAEL C. GARRARD, Esq.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MESSRS. PATIN AND GARRARD: This is written in reference to an article in the February 4, 1999 edition of the Baton Rouge Morning Advocate. The article reported the comments of several board members regarding the expansion of the charter schools which the Board has approved to operate in East Baton Rouge Parish.

    As you will recall, on February 3, 1999, I had a conversation with Mr. Garrard concerning the Board's proposed motion seeking approval of the continued operation of three charter schools (Community School for Apprenticeship Learning, The Children's Charter School, and J.K. Haynes Elementary Charter School) which the Board approved for operation in 1996. The three charter schools opened without notice to the parties or approval of the Court. During our Conversation I reiterated, to Mr. Garrard, that the United States would not oppose the motion in light of the following factors and under the following conditions:
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Factors:

    1. The student enrollment in each charter school is relatively small, and

    2. While the Board certified the operation of the charter schools without court approval, the charter schools have operated for three years and the United States believes to seek disestablishment of the schools would create a hardship for the students enrolled therein.

Conditions:

    The motion and proposed order will be modified as follows:

    1. The student enrollment provided for each school shall be disaggregated by race

    2. The location specified for each school shall not be changed without approval of the court,

    3. The respective enrollments of the schools shall not be expanded without approval of the court,

    4. An appropriate Board/school system official shall execute an affidavit attesting that an evaluation has been performed and a determination made by said official that the operation of the respective charter school will not impede the Board's ability to fully implement the extant consent decree and comply with applicable federal desegregation case law both as to student assignment and financial allocation, and
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    5. The Board shall include in its Hinds County Reports the student enrollment for each charter school by race and the number of students by race identified for each sending school or parish school the students would have attended had they enrolled in the parish school system.

    Once the pleadings have been conformed to the specified conditions and filed the United States will file an appropriate response.

    Should you have a question concerning this letter do not hesitate to contact me.

Sincerely,

Franz R. Marshall, Senior Trial Attorney.

cc:

Robert C. Williams, Esq.
John K. Pierre, Esq.

     


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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, May 14, 1999.
PERCY BATES, PH.D.,
Director, Programs for Educational Opportunity,
School of Education,
Ann Arbor, MI.

WILLIAM M. GORDON,
Dayton, OH.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR DRS. GORDON AND BATES: Thank you for providing us a copy of your May 4, 1999 report recommending the addition of a fourth grade to the Children's Charter School. The report is helpful and we appreciate your input on the issue. However, since you have forwarded the report to all the parties and the Court, we would like to correct one point made in the report regarding the United States' position on the proposed expansion of the Children's Charter School.

    The report describes our February 5, 1999 letter to Messrs. Patin and Garrard as indicating that we ''would not agree to an expansion of the charter schools beyond their present configuration.'' Therefore, you state that this matter needs to be brought to the attention of the Court before any decision is made concerning the addition of a fourth grade class. We do not believe that our February 5th letter states that we would not agree to any expansion. In any event, that is not our position. It is our view, however, that in light of the requirements of the Court's orders that this matter should be brought to the Court's attention, before any changes are made, even if we do not oppose the changes.
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    The report States Support for the proposal to add a fourth grade to Children's Charter because it will allow the present third graders in the 78 student school to remain there ''in an articulated elementary program.'' Indeed, it does not appear that adding the fourth grade to allow present third graders at the school to continue their education there presents a major issue.

    The February 5th letter cited by the report informs the East Eaton Rouge Parish School Board that we would not oppose a motion to continue operating these small charter schools, including Children's Charter, upon the Board's agreement to certain rather basic and straightforward conditions, including: providing specific information about the charter schools enrollment; reporting on the effect, if any, the charter schools have on any other schools in the Parish; and providing assurance that the operation of the charter schools would not impede the Board's ability to comply with the terms of the recent consent decrees, including its financial obligation under those decrees. We also asked for agreement (assuming the Court approved the proposed motion) that Court approval would be sought for any further expansion of the schools or any change in location. The Board has not yet responded to this letter nor provided the requested information and assurances.

    Upon receiving the requested information, we will promptly respond and work with all the parties to attempt to resolve this issue amicably. However, as stated above, ultimately the matter must be submitted to the Court for approval. Hopefully, we can do this expeditiously in the form of an agreement of all the parties. But even in that case, we will need to present the Court some evidence to consider. The information and assurances requested in our prior correspondence to the Board would be a step in that direction.
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    Finally, the report raises the possibility of further expansion of the current elementary charters in the 2000–01 school year. While we are unaware at this point of any such proposal, your report raises a valid point. It is not only difficult to consider in piecemeal fashion any potential impact of the charter schools on the remedy in this case, it is also unfair to the students and parents concerned. We anticipate meeting with the parties in the near future to address the long range concern expressed in your report.

    Again, we thank you for your assistance.

Sincerely,

Javier M. Guzman, Trial Attorney.

cc:

Michael C. Garrard, Esq.
Charles L. Patin, Esq.
Robert Williams, Esq.
John Pierre, Esq.

     

From:

Franz R. Marshall
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To:

crt04.po.kstevens, jglassma, jguzman

Date:

5/24/99 5:53pm

Subject:

East Baton Rouge—Reply

    The district has requested and we have agreed to meet to discuss outstanding issues in the case, the meeting is scheduled for June 2nd and 3rd, counsel for all parties as well as the court-appointed monitors will participate. We will probably discuss such issues as: construction of additions to certain one-race schools, elimination or reduction of overcrowded schools, elimination/reduction of the use of temporary buildings, possible expansion of the size of the student enrollments at the charter schools which already exist, reduction and/or refinement of existing magnet programs, redrawing of existing attendance zone lines, projections for coming school year, termination of third year of operation under the '96 consent decree and the preparation by plaintiffs of an evaluation report of compliance or lack thereof with the '96 consent decree, the district's preparation for implementation of the '98 consent decree, thoughts on the district's progress toward establishing a unitary school system, etc.

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From:

Franz R. Marshall

To:

crt04.po.kstevens, jglassma, jguzman

Date:

5/26/99 3:39pm

Subject:

East Baton Rouge—Reply

P.S.

    Recently the board filed a motion requesting court approval of excess enrollment at 12 schools, eight of which are one-race or racially identifiable. (In fact the enrollments at an additional 17 schools, of which 12 are racially identifiable, exceed the projections and the board has failed to identify and seek approval for these.) Pursuant to the '96 consent decree, the board is required to seek court approval of over-enrollment situations within 15 days of the beginning of the school term where the enrollments of schools significantly exceed the projections set forth in the consent decree (the projections were developed by the board). In each of the past two years the board has sought such approval, we have not objected with the understanding that the board was devising actions to prevent recurrence, and the court has granted approval because we did not object and because of the understanding.
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    This is the third consecutive year the board has sought approval and it appears that the board has failed and will continue to fail to correct their actions—there are two recent articles in the local paper concerning this issue among others; the first indicates that the supt. recognized the need to modify some zone lines to address some over-enrollment situations, the second article indicates that the supt. changed his mind and has decided to request that additional temporary buildings be placed at the schools instead of adjusting the enrollments to comply with the consent decree. Because the board has not developed any actions to prevent recurrence, we propose to file a response on 5/27 which notes the continued failure and request the court to direct the board to develop and file a report which outlines the actions the board will take to bring the system into compliance with the consent decree provision.

     

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR.,
et al.,
Plaintiffs

and

UNITED STATES OF AMERICA
Plaintiffs-Intervenors        C.A. NO. 56–1662–A

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v.

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,
Defendants.

UNITED STATES' RESPONSE TO DEFENDANT EAST BATON ROUGE PARISH SCHOOL BOARD'S MOTION TO EXCEED PROPOSED ENROLLMENT

    The 1996 Consent Decree directs the East Baton Rouge Parish School Board to obtain Court approval to operate any school in excess of its proposed enrollment, and further directs the Board to obtain this approval no later than 15 school days subsequent to the beginning of each semester. See 1996 Consent Decree, 8. In each of the prior two years of operation under the consent decree, the Board has routinely sought and obtained Court approval of over-enrollment at certain schools. Now, in the third year, following requests throughout the spring semester for additional time in which to bring before the Court the question of over-enrollment, the Board again requests approval to exceed the proposed enrollment at certain schools.(see footnote 63) The Board does not explain the reasons for the over-enrollment or describe any steps it has taken to forestall or prevent its recurrence.

    The United States does not object to the Board's request, given that it has waited until the school year's end to seek court approval. It appears, however, that the Board will continue to fail to comply with the consent decree if not specifically and emphatically ordered to take appropriate steps to do so. We therefore request that the Court find the Board in non-compliance with the enrollment projections established in the 1996 Consent Decree, and require the Board to take all necessary steps to comply with the enrollment projections by the beginning of the 1999–2000 school year. A proposed order is attached.
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Respectfully submitted,

L.J. Hymel, Bar #7137, United States Attorney,
Anita Hodgkiss, Deputy Assistant Attorney General,
Civil Rights Division,
Franz R. Marshall and
Javier R. Guzman,
U.S. Department of Justice,
Educational Opportunities Litigation Section.
Dated: May 27, 1999

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR.,
et al.,
Plaintiffs

and

UNITED STATES OF AMERICA
Plaintiffs-Intervenors        C.A. NO. 56–1662–A

v.

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,
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Defendants.

ORDER

    Based on Defendant East Baton Rouge Parish School Board's ''Motion to Exceed Proposed Enrollment'' and the responses thereto submitted by the plaintiffs and plaintiff- intervenor, the Court finds that the Board is in non-compliance with the enrollment projections established by the 1996 Consent Decree. The Board shall therefore take all necessary steps to comply with the enrollment projections by the beginning of the 1999-2000 school year, and shall submit such plan to the Court by August 1, 1999.

    DONE AND ORDERED in Baton Rouge, Louisiana, this XX day of XX, 1999.


Judge, United States District Court,
Middle District of Louisiana
CERTIFICATE OF SERVICE

    I hereby certify that on this 27th day of May, 1999, I served copies of the foregoing pleading to counsel of record by United States Mail addressed to:

Robert Williams, Esq.
3815 Fairfields Avenue
Baton Rouge, LA 70802

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John Pierre, Esq.
Southern University Law Center
Roosevelt-Steptoe Building, Room 261
Baton Rouge, LA 70813

Charles L. Patin, Jr., Esq.
Michael C. Garrard, Esq.
Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, LLP
P.O. Box 3513
Baton Rouge, LA 70821

Maxwell G. Kees, Sr., Esq..
General Counsel
East Baton Rouge Parish School Board
1050 South Foster Drive
Baton Rouge, LA 70806

Dennis Parker, Esq.
NAACP Legal and Defense Fund
99 Hudson Street, Suite 1600
New York, NY 10013-2897


L.J. Hymel, United States Attorney.
     

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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, June 10, 1999.
CHARLES L. PATIN, JR., Esq.,
MICHAEL C. GARRARD, Esq.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman, LLP,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MESSRS. PATIN AND GARRARD: This letter is intended to summarize our discussions at the June 3, 1999 meeting, to set out our position on some of the matters discussed, and to share with you our suggestions of steps that may be helpful.

1. The Board's proposal of a new desegregation plan.

    School system officials presented a new concept for furthering desegregation in the school system. This concept would be based on increasing majority-to-minority (''M-to-M'') transfers from predominantly black schools in the western part of the parish to predominantly white schools in the eastern part of the parish which would be provided with additional space, either through additional temporary buildings (''t-buildings'') or permanent construction (''quads''), to accommodate in part the expected M-to-M transfers; relocating magnet programs from predominantly black schools in the western part of the parish to schools in the central part of the parish to increase the likelihood of attracting white students; and enhancing predominantly black schools in the western part of the parish. This concept was to be presented to the Board at its June 4th meeting to determine whether it should be further developed.
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    While we are willing to consider reasonable proposals from the Board for furthering desegregation, we are not sure that adopting a new plan at this time makes the most sense given that the Board has not yet complied with the 1996 Consent Decree and is scheduled to shortly begin implementing the modified tax plan approved by the Court earlier this year. In fact, we are not sure that the premise for developing a new plan—that the current plan is not working—is a fair assessment of the current plan rather than a statement regarding implementation efforts. For instance, it cannot be said with any certainty that the magnet programs, in their present locations, will not further desegregation because the Board has failed to properly implement and support many of the magnet programs. We would therefore be reluctant to agree to any new desegregation plan without a clear commitment from the Defendants that the necessary resources, financial and otherwise, will be committed to ensure success.

    Additionally, we are concerned that the proposal to create additional space at the predominantly white schools in the eastern part of the parish to accommodate the expected increase in M-to-M transfers, which may simply result in larger one-race white schools absent the implementation of enrollment limitations at those schools (particularly since Board representatives stated at the meeting that this additional space would also be used to accommodate incoming white students). What are the projections regarding increased M-to-M transfers and upon what are they based? We are also concerned about school system officials, discouragement of black M-to-M transfers to predominantly white Wedgwood Elementary School (for which the Board has requested 7–8 additional temporary buildings) while additional white students are accepted. Further, we are concerned about the Superintendent's statement during the June 4th Board meeting that he supported further development of the new desegregation plan only insofar as there would be no attendance zone changes. Such changes should be considered where necessary to achieve the greatest degree of desegregation practicable, especially in light of the school system's overcrowding and t-building situations.
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2. Over-enrollment, temporary buildings and new classroom construction.

    The Board has proposed relocating t-buildings to accommodate students and academic programs. As you know, the Board has been under a continuing court-ordered obligation since 1981 to reduce the number of t-buildings in the school system so that racially identifiable schools are not enlarged. We are therefore unwilling to agree to any proposal that fails to reduce the number of temporary buildings in the absence of safeguards (e.g., enrollment limitations, adjusted attendance zone lines) that would prevent increased racially identifiable enrollments.

    We expressed the same concerns with respect to constructing quads at racially identifiable schools. Moreover, as we have stated many times to the Board, enlarging one-race schools, either by permanent construction or temporary buildings, is inconsistent with the orders in this case. We understand that the Board is now willing to reconsider the schools that were designated in the original tax plan to receive quads. we look forward to having the opportunity to consider such proposals when they are forwarded to us.

    Finally, the Board also indicated that it would like to postpone compliance with the 1996 Consent Decree obligations to reduce temporary buildings and over-enrollment at certain schools, pending further development of a new desegregation plan. We stated that we cannot agree to a suspension of the Board's obligations when we do not know whether a new plan will be developed, what that plan will entail, and whether the Board will approve such a plan. At any rate, the Board has had three years to remedy these issues and has failed to do so.

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3. Expansion of existing charter schools.

    The plaintiff parties were presented with a joint motion for expansion of the existing charter schools. We requested that the Board provide, as indicated in my February 5, 1999 letter setting forth the conditions under which we would not oppose a motion for expansion, the enrollment for each school by race and an affidavit from the appropriate official that the reduction in funds from the operation of these schools (for all grades) will not impede the Board's ability to comply with the financial obligations set forth in the 1996 Consent Decree or any other applicable Court order. School system officials indicated that they would consider providing this additional information, and that the Board intended to file its motion with the Court. We also informed the Board, as suggested by Board President Moser, that if it is considering approving the addition of a fifth grade to the charter schools, the issue should be addressed now rather than next summer.

    Insofar as the Board intends to file its motion with the Court, it may be that the Court would find it helpful to have additional information to provide a more complete picture about the charter schools you propose to expand. In addition, providing the suggested information may in the long run save time. This information might include:

  a. A map disclosing the location of the charter schools as well as nearby EBR schools of similar grade levels.

  b. The current and proposed grade levels to be served for each charter school, and the proposed enrollment limitations.

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  c. Any special program or theme for each charter school.

  d. The admissions process of each school, indicating whether admissions are open, have any targeted attendance area, and an explanation of the enrollment process.

  e. The recruitment process for each charter school, including a description of any recruiting activities by the district or charter school targeted to attract other race students.

  f. If available, a GIS map or other map disclosing the racial composition of the area surrounding and nearby the charter schools.

  g. The current racial composition of each charter school with respect to not only student enrollment, but also faculty and staff.

  h. To assess the impact of the charter school on other schools, for each charter school for each student at the school: the student's race, the school the student would have attended in EBR if he/she did not attend the charter school, and the racial composition of that school.

  i. The district's budget for the coming school year and an indication of any line item for charter schools.

    As we explained in our meeting with you, and in prior correspondence, particularly our letter of May 14th, 1999 to Drs. Gordon and Bates, based on the information we have at this time, we do not anticipate opposing the expansion of currently existing schools to allow students to continue in the program beyond the third grade. However, we need, additional basic information about the charter schools, and the assurances we requested, in order to be clear about the impact of these programs on the district's ability to meet its obligations under the Court's prior orders. Please do not hesitate to contact me or Javier Guzman if you would like to discuss these matters further.
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Sincerely,

Franz R. Marshall, Senior Trial Attorney.

cc:

Robert L. Williams, Esq.
John Pierre, Esq.
Dennis Parker, Esq.

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, June 22, 1999.
MICHAEL C. GARRARD, Esq.,
CHARLES L. PATIN, JR., Esq.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

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    DEAR MESSRS. GARRARD AND PATIN: This is written in reference to the status conference on June 16, 1999, and the discussions which occurred therein. I hope the contents of this letter will assist the parties to resolve some of the concerns of the court.

    First, as you will recall, the court requested that the United States take the lead in developing, by consensus, a date by which the defendants would be required to file requests for modifications to the consent decree, the ''modified tax'' plan, and any other proposal requiring court approval. During the discussion, the court suggested that such a submission be made in December or January prior to the operative school year. Consistent with that discussion, I suggest that January 15th would be an appropriate date to serve as the deadline. However, if you believe that this date is unworkable, please let us know why and suggest an alternative date keeping in mind that the date must allow sufficient time for the parties to evaluate any such request, obtain appropriate discovery when necessary, and to allow the court to hold a hearing and decide the matter while allowing the school board sufficient time to plan for implementation.

    Second, the court has requested that the school board develop and file a report detailing its progress or lack thereof with respect to implementation of the consent decree. Counsel for the school board has indicated that the requisite report can be filed by July 6, 1999. I suggest it might aid the parties' and the court's comprehension and therefore evaluation of the report if we scheduled a status conference on July 13 or 14, 1999, (assuming the court's schedule permits) for the purpose of allowing the defendants to provide clarification where necessary so that we may evaluate the report in an informed and objective manner.

    Third, in conjunction with the school board's development of a new plan and consistent with the court's concerns about developing a plan in a vacuum without input the plaintiff parties, I suggest that it might prove efficacious to schedule a meeting of the parties and the monitors during the week of July 13 th to discuss a detailed outline of the new plan. Such an outline should be provided the parties in writing by June 28, 1999, and should include any guidelines and/or constraints provided by school system administration.
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    I hope this letter will assist the parties to pursue an amicable mechanism to resolve the issues extant in this litigation. As always, should you have any questions concerning the contents of this letter, do not hesitate to contact me.

Sincerely,

Franz R. Marshall, Senior Trial Attorney.
     

From:

Jeremiah Glassman
To:

crt04.po.ahodgkis, crt04.po.sishimar, crt04.po.kst ...
Date:

7/15/99 5:40pm
Subject:

La. charter

    The board filed its motion regarding approving the 3 existing charter schools and also expanding the two elementary charter schools by adding the 4th and 5th grades over next two years (grade at a time 20 kids per)on tuesday, they asked for expedited consideration.
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    We did not oppose expedited consideration, and told the ct same at status conference on other matters on tuesday. So ct set hearing on the charter schools issue and capacity issue for this coming tuesday, and told district to provide information that we requested by cob friday.

    We will not object to the existing schools and the proposed expansion. We will state that under the circumstance—the charters already exist, and—kids need to know where they are going to school—. However, we will take board to task for waiting so long to file its motion, and again filing for a forseeable change just before school is to open. this is bad faith. and court has just issued an order that all proposed changes need to be brought to its attention by Jan 15, because the bd usually does this type of thing.

    Private plaintiffs indicated that they will object—, charters are virtually all black, money issues, and this will be the beginning of more charters. However, this may change—sometimes they follow our lead, but no reason to know that will be the case.

    On the statewide front, franz tells me that the state is telling districts that they need to get ct approval before implementing a state approved charter.

    give me a call if you have any questions. i will be out of town on monday and probably tues—in chicago. let me know if you want franz to give you a call on monday. he will be leaving early monday for hearing but can call from road, airport etc.

    have a nice vacation
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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, July 7, 1999.
MICHAEL C. GARRARD, Esq.,
Kean, Miller, Hawthorne,
D'Armond, McCowan & Jarman,
Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR MR. GARRARD: Thank you for your June 23, 1999 letter providing certain information that we requested in connection with the proposed expansion of the Children's Charter School, J.K. Haynes Charter School and Community School for Apprenticeship Learning. Although the information provided is helpful in evaluating the proposed expansion, we need to confirm that we correctly understand some of the responses.

    In describing the admissions process for each charter school, your letter refers to the state statutory provisions regarding the charter school admissions process without explaining whether there are particular admissions procedures employed by the charter schools at issue here. We note that one of the cited provisions states that if any admission requirements are established, they ''shall be specific.'' La. R.S. 17:3991(B)(3). Thus, for each charter school that has formulated admissions procedures and criteria, can you provide us a copy of those procedures and criteria?
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    In describing the recruiting process for each charter school, your letter simply states that ''the recruitment efforts are handled by the individual charter schools.'' Can you provide any information about each charter school's recruitment efforts? To the extent that the charter schools have provided the Board with written descriptions of their recruitment efforts, copies of this information would be helpful.

    The October 1, 1998 school enrollment figures provided in Exhibit 4 to your letter are unclear. Are we correct that the enrollment figures exclude students attending the charter schools?

    Your letter also states that the Board is working on the budget for the upcoming school that would include the total cost to the Board for operation of the charter schools (including the proposed expansion). Please provide that information to us once the budget has been completed. To the extent that the Board has prepared preliminary estimates, that information may be helpful.

    Finally, based on prior conversations and meetings with you and members of the Board, we understand that the Board will be filing a motion seeking Court approval of the existing charter schools as well as their proposed expansion. If that is no longer the case, please advise us. Thank you very much for your kind assistance.

Sincerely,

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Franz R. Marshall, Senior Trial Attorney.

CC:

Dr. William Gordon
Dr. Percy Bates
Robert L. Williams, Esq.
John Pierre, Esq.
Dennis Parker, Esq.
Gideon Carter, Esq.
Arthur Thomas, Esq.
L. J. Hymel, Esq.

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, July 19, 1999.

BY HAND DELIVERY

Hon. JOHN V. PARKER, District Judge,
U.S. District Court for the
Middle District of Louisiana,
Baton Rouge, LA.

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Re: Davis and United States v. East Baton Rouge Parish School Board, C.A. No. 56–1662–A (M.D. La.)

    DEAR JUDGE PARKER: Enclosed is a courtesy copy of the United States' Response to Defendant East Baton Rouge Parish School Board's Motion in Connection with Charter Schools, which is also being filed with the clerk's office today. We are providing a copy by hand so that you may have it prior to tomorrow's hearing.

Sincerely,

Javier M. Guzman, Trial Attorney.

Enclosure

    cc: All counsel of record (w/ encl.)

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF LOUISIANA

CLIFFORD EUGENE DAVIS, JR.,
et al.,
Plaintiffs

and

UNITED STATES OF AMERICA
Plaintiffs-Intervenors        C.A. NO. 56–1662–A
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v.

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,
Defendants.

UNITED STATES' RESPONSE TO DEFENDENT EAST BATON ROUGE PARISH SCHOOL BOARD'S MOTION IN CONNECTION WITH CHARTER SCHOOLS

    One month before the start of school, the Board seeks judicial approval for three charter schools—which were approved and opened in 1997 by the defendant Board without informing plaintiff parties or obtaining prior Court approval—and for expansion of two of those schools to accommodate fourth and fifth grade classes. In delaying seeking Court approval for these charter schools, the Board not only has violated the 1996 Consent Decree's prohibition against opening new schools without prior Court approval but has cast further doubt on its good faith commitment to fully implement and abide by the consent decree. Furthermore, any hardship that would result to the students who are scheduled to attend the charter schools if they were required to transfer to other schools is the direct result of the Board's delay in seeking Court approval. Nonetheless, for the reasons explained below, the United States does not oppose the motion.

    The Board's motion raises at least two issues which merit the Court's consideration: (1) the racial composition of the charter schools and their impact on the Board's ability to further desegregate the school system; and (2) the Board's ability to meet its obligations, financial and otherwise, under the consent decree given the amount of funds that will be diverted from the school system to the charter schools.
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    The charter schools enroll a predominantly black student body, and, under the standard prescribed by the consent decree, two of the charter schools, Children's and J.K. Haynes, are racially identifiable.(see footnote 64) Thus, the Board's approval of these charter schools is tantamount to the Board opening two new racially identifiable schools and then expanding them.(see footnote 65) Additionally, with a few exceptions, the current charter school students are drawn from predominantly black schools, many of which are racially identifiable.(see footnote 66) The charter schools do not cause any schools to become significantly more segregated or to fall out of compliance with the consent decree's desegregated school measure. See 7/7/99 Affidavit of William Robbins (''Robbins Aff.''), 9. But, as noted above, in at least two instances black students have left predominantly white schools to attend racially identifiable black charter schools. While this number is presently small, it should not be allowed to increase.(see footnote 67) The Board should therefore take steps to prevent increases in this number to avoid defeating the goals of the consent decree and the law to achieve the greatest degree of desegregation practicable.

    The charter schools, financial impact on the school system is relevant because the Board has previously invoked the lack of funds as an impediment to fully implementing the consent decree, particularly with respect to the extensive magnet program that it agreed to undertake in 1996.(see footnote 68) The motion states, at 4, that the ''Board asserts that the continued operation of the . . . three charter schools with [specified] enrollment limits and grade level structures will not interfere with the ability of the School Board, based on present circumstances, to comply with all of the obligations of the [1996] Consent Decree.'' But the charter schools' full financial impact is unclear. Each student attending a charter school reduces the amount of regular operational funding available to the system by approximately $4,700. See 7/12/99 Affidavit of Charlotte Placide (''Placide Aff.''), 4. Neither the motion nor Ms. Placide's affidavit states whether this amount represents only the amount of state-provided (MFP) funding or also includes local monies.(see footnote 69) Moreover, no accounting is provided for federal Title I monies that the Board may be providing to J.K. Haynes and Children's to operate pre-kindergarten classes. See Motion at 3–4 (stating that J.K. Haynes and Children's may operate pre-kindergarten classes paid for by Title I funds). Similarly, there are at least two out-of-parish students attending the Community School.(see footnote 70) The Board does not explain whether it or the sending parish school district provides funds to the Community School for these two students.
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    Based on the Board's proffered $4,700 per pupil figure, operating the charter schools at full capacity will result in an annual loss to the system of approximately $1.7 million.(see footnote 71) Given the Board's assertion concerning its financial constraints with respect to the consent decree, it is fair to question the Board's decision to approve and expand three charters that will result in nearly $2 million being diverted annually from the school system. Ms. Placide states in her affidavit that ''the appropriations to the charter schools will not result in the inability of the [Board] to comply with the financial obligation set forth in the Consent Decree.'' Placide Aff., 5. Ms. Placide further states, however, that her evaluation is limited to ''current conditions and current income projections for the future,'' which are subject to change. Id.

    In light of the information provided by the Board (subject to confirmation at the hearing), particularly the assurance that the charter schools will not result in the Board's inability to comply with its consent decree obligations, the United States does not oppose the Board's motion.(see footnote 72) If the Court grants the Board's motion, we request that in its order the Court (1) find that the Board violated the consent decree in failing to obtain judicial approval prior to approving and funding the three existing charter schools, (2) direct the Board to obtain judicial approval prior to funding any future charter schools or expanding any existing charter schools, and (3) condition approval on the existing charter schools not negatively affecting desegregation in the school system or the Board's ability to fulfill its obligations, financial and otherwise, under the consent decree. If it is subsequently found that the charter schools are impeding desegregation or the Board's ability to comply with the consent decree, the United States then may seek appropriate judicial relief.
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Respectfully Submitted,

L.J. Hymel, Jr., United States Attorney,
Anita Hodgkiss, Deputy Assistant Attorney General,
  Civil Rights Division,
Franz R. Marshall and
Javier M. Guzman,
U.S. Department of Justice,
  Educational Opportunities Litigation Section.

Dated: July 19, 1999

CERTIFICATE OF SERVICE

    I hereby certify that on this 19th day of July, 1999, I served copies of the foregoing pleading to the following counsel by hand:

Robert Williams, Esq.
3815 Fairfields Avenue
Baton Rouge, LA 70802

John Pierre, Esq.
2900 Westfork Drive, Suite 200
Baton Rouge, LA 70816

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Arthur Thomas, Esq.
1623 Main Street
Baton Rouge, LA 70802

and by facsimile to:

Charles L. Patin, Jr., Esq.
Michael C. Garrard, Esq.
Kean, Miller, Hawthorne, D'Armond, McCowan & Jarman, LLP
P.O. Box 3513
Baton Rouge, LA 70821

Maxwell G. Kees, Sr., Esq.
General Counsel
East Baton Rouge Parish School Board
1050 South Foster Drive
Baton Rouge, LA 70806


Javier M. Guzman, U.S. Department of Justice,
Educational Opportunities Litigation Section,
Washington, DC.
     

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

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HAND DELIVERED

CLIFFORD EUGENE DAVIS, JR.,&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;CIVIL ACTION NO. 56–1662–A
et al.,
AND UNITED STATES OF AMERICA

VERSUS

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,

OPPOSITION TO EAST BATON ROUGE PARISH SCHOOL BOARD'S MOTION IN CONNECTION WITH CHARTER SCHOOLS AND REQUEST FOR SANCTIONS

    The Baton Rouge Branch of the NAACP through undersigned counsel hereby files its opposition to the East Baton Rouge Parish School Board's (''School Board'') ''Motion in Connection with Charter Schools'' and Request For Sanctions on the following grounds:

1.

    Without this Court's approval and in violation of the provisions of the Consent Decree executed by the parties and entered into the record as an order of this Honorable Court on August 1, 1996, the School Board, pursuant to the ''Charter School Demonstration Program Law,'' (La. R.S. 17:3971 et seq.) executed a separate ''Charter School Contract'' in connection with each of the following three charter schools:
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1. Children's Charter School;

2. The Community School for Apprenticeship Learning; and

3. The J. K. Haynes Elementary Charter School.

2.

    The School Board's Motion fails to properly establish grounds for granting its motion based upon the affidavits of Don Mercer, Charlotte Placide and William Robbins, the Charter School Contracts, and the School Board's Memorandum in support of its motion.

3.

    Without seeking this Honorable Court's prior approval, these three charter schools have operated during the 1997–1998 school year pursuant to the School Board's ''Charter School Contracts'' with each of these charter schools executed on April 10, 1997. Furthermore, the enforceability of the ''Charter School Contracts'' was not contingent upon this Honorable Court's approval.

4.

    Because, the East Baton Rouge Parish School System (''System''), in general, incurs an approximately $4,700.00 reduction in the amount available to it for regular operational funding for each student who attends one of the aforementioned charter schools, the appropriations to the charter schools has resulted in the inability of the ''School Board'' to comply with the financial obligations set forth in the Consent Decree and with the terms of other orders of this Honorable Court. Furthermore, future increased appropriations to the charter schools will result in the inability of the ''School Board'' in the future to comply with the financial obligations set forth in the Consent Decree.
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    The School Board desire that this Honorable Court issue an order allowing for the continued operation of the charter schools is an acknowledgment by the Board that it acted in bad faith when it failed to seek the approval of this Honorable Court prior to allowing these charter schools to operate with System funds. The failure to seek prior approval violates orders of this Honorable Court. Furthermore, this failure to seek prior approval is indicative of other failures of the School Board and System to carry out the mandates of the Consent Decree and the lawful orders of this Honorable Court in good faith.

5.

    The Board and the System, alone, with the Board's counsel, knew or should have known that the actions taken with respect to the operation of the charter schools during, the 1997–98 and 1998–99 school years violated orders of this Honorable Court.

6.

    The School Board's and the System's failure to act in good faith since the inception of the Consent Decree is indicative of future behavior that the School Board and System will engage in if the charter schools are allowed to expand.

7.

    The School Board in entering into ''Charter School Contracts'' was obligated to consider the impact of the operation of charter schools on the current desegregation case. The School board failed in its obligation to consider what impact operating charter schools would have on the current desegregation case.
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8.

    The NAACP asserts that the continued operation of the three charter schools with the enrollment limits and grade level structures proposed by the School Board will interfere with the ability of the School Board to comply with all of the obligations of the Consent Decree approved by the Court on August 1, 1996 or with any other orders of this Court. Furthermore, the NAACP asserts that the School Board is seeking further expansion in the operation of charter schools that will essentially create a parallel private school system using public funds without court supervision.

9.

    Wherefore, because of the failure of the School Board to adhere to orders of this Honorable Court in operating ''charter schools'' in the 1997–98 and 1998–99 school year, the NAACP prays for the following relief:

  1. That sanctions be issued against Dr. Gary Matthews, individually, and in his capacity as superintendent of the East Baton Rouge School System for his blatant failure to adhere to previous orders of this Honorable Court as they relate to the operation of the charter schools during the 1997–98 and 1998–99 school years;

  2. That sanctions be issued against those School Board members voting for the approval of the operation of charter schools years without prior approval from this Honorable Court in their individual capacities and in their capacities as members of the School Board;.
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  3. That sanctions be issued against the East Baton Rouge School Board and East Baton Rouge School System for their failures as a board/corporate body and a system to adhere to orders of this Honorable Court in operating the charter schools during, the 1997–98 and 1998–99 school years;

  4. That the School Board's request be denied, and that if the School Board is allowed to operate charter schools in future years while under orders of this Honorable Court, that the School Board be enjoined from using lack of resources and money as an excuse in carrying out consent decree mandates and other mandates of this Honorable Court;

  5. That the sanctions requested previously be in the amount of $4,700.00 per student enrolled in each of the three charter schools during the 1997–98 and 1998–99 school year and that such funds be used to create and fund an Education Equity Enhancement Account to be administered by the education monitor to benefit racially identifiable black schools and to increase the annual amount according to the mandates of the Consent Decree that the School Board is obligated to appropriate to effectuate physical facilities enhancements at racially identifiable black schools;

  6. That this Honorable Court develop and enter orders directing that all matters concerning implementation by the School Board of the Consent Decree and all other desegregation orders of this Honorable Court be submitted to and approved by this Honorable Court's monitors;.

  7. That the School Board and the System's Superintendent be enjoined from taking any further actions which interferes with the implementation of the Consent Decree and all other desegregation orders of this Honorable Court;.
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  8. That reasonable attorney fees be awarded.

Respectfully Submitted;

John K. Pierre, Attomey-At-Law,
Arthur Thomas, Attorney-At-Law,
Baton Rouge, LA
CERTIFICATE

    I hereby certify that a copy of the above document has been mailed, postage prepaid and properly addressed to all counsel of record.

    Baton Rouge, Louisiana this 19th day of July, 1999


John K. Pierre
UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

HAND DELIVERED

CLIFFORD EUGENE DAVIS, JR.,
et al.,

AND UNITED STATES OF AMERICA&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;&Nbsp;CA. No. 56–1662–A

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VERSUS

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,

MEMORANDUM IN OPPOSITION TO CHARTER SCHOOLS—WITH REQUEST FOR SANCTIONS

    The Baton Rouge Branch of the NAACP herein filed this opposition to the East Baton Rouge School's Board's Charter School Motion and the move to enlarge their respective student bodies, together with a suggestion of sanction against the East Baton Rouge Parish School Board. While a search of the legal literature reveals relatively few causes and law review articles concerning Charter Schools, the body of literature suggests the following: In a school system under a court order of desegregation, Charter Schools must operate in a manner consistent with the court's orders and their operation must not prevent a system from achieving desegregation. U.S. v. Lowndes County Bd. Of Educ., 878 F.2d 1301 (11th Cir. 1989). James A. Rapp, Education Law—Chapter 10 (Matthew Bender).

    While a few scholars have addressed the effects of Charter Schools on desegregation, there is little consensus on the actual effect such schools have on desegregation. The scholars do seem to agree that such schools are not inherently bad but may be operated in a way, if not monitored properly that may not promote desegregation. Camp, Ausbrooks, & Huffman, The Yearbook of Education Law 1998.

    Considering the School Board's Motion, the Charter School Contracts attached thereto and the insufficient affidavits of Don Mercer, Charlotte Placide and William Robbins, the effect of Charter Schools on desegregation efforts cannot be determined. Hence, a proper showing has not been made by the movant. However, and more especially, the NAACP would urge the denial of the motion given the recent history of the School Board involving the implementation of their consent decree, and its announced desire of Dr. Gary Mathews to ''scrap'' the Consent Decree after three years without fully implementing the same in favor of the ''Robbins Concept.''
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    The School Board's motion and memorandum both fail to establish that the operation of the Charter Schools is consistent with the Consent Decree. Must a Charter School's operation be consistent with a voluntary desegregation plan?

    At least one state court has addressed the operation of a Charter School in a system under a voluntary desegregation plan, and found that a Charter School must operate consistently with such a plan. Beaufort County Board of Education v. Lighthouse Charter School Committee. 1999 WL 350584 (S.C.). It is possible that Charter Schools which do not go as far as to render a district violative of a court ordered or voluntary desegregation plan, but nevertheless works against the desegregative goals of such a plan may be held in disfavor by a federal court. For example, Charter Schools that seemed to operate as enclaves for white parents seeking to avoid the dictates of a court order may be suspect. In Reed v. Rhodes, N.D. Ohio No C73–1300 (July 1, 1981), (unreported) (discussed in Griswold Institute v. Walter, 1989 WL 10358 (Ohio App. 10th Dist), a federal district court ordered the State of Ohio not to issue a charter to a Cleveland school when Cleveland was under a desegregation order, because the Charter school was suspected of operating in a racially discriminatory manner to the benefit of white parents seeking to avoid desegregated schools. Reed, supra, at 3 (cited in Griswold, supra, at p.2). The state of Ohio was refrained from issuing, a charter to the school until the state had developed regulations specifically to govern the issuing of Charters to schools in districts under court orders.

    In the case at bar, we have the same scenario, except that here the School Board is issuing the Charter as opposed to the State of Louisiana. In the absence of a more definite and precise showing to establish that the agreements between the School Board and the Charter schools factor desegregation issues into the issuance of such charters, the Board's motion should be denied.
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    In its motion, the School Board admits that it has allowed the operation of Charter Schools without Court approval in violation of the Consent Decree. The motion and other actions of the School Board provides evidence that the School Board and the School System has no intention of fully implementing the Consent Decree which it urged that the parties and the Court to experiment with in 1996. In view of this revelation, the NAACP requests the Court to enter the sanctions prayed for in the NAACP's Opposition.

Respectfully Submitted:

John K. Pierre, Attomey-At-Law,
Arthur Thomas, Attorney-At-Law,
Baton Rouge, LA
CERTIFICATE

    I hereby certify that a copy of the above document has been mailed, postage prepaid and properly addressed to all counsel of record.

    Baton Rouge, Louisiana this 19th day of July, 1999.


John K. Pierre
     

From:

Jeremiah Glassman
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To:

crt04.po.ahodgkis
Date:

7/20/99 5:13pm
Subject:

ebr

    franz called and asked that i relay the days events

    1. court took charter school issue under advisement. the board has 15 days to supplement the record regarding financial information.

    ct indicated that it would not look favorably on additional charter schools.

    ct said it didn't take motion for sanctions seriously. if they are serious, however, proper way is to file a motion, not include same in a response to bds motion for approval

    ct concern was whether charter schools were doing a good job, and the effect of fund loss on entire district

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    less/no concern about the charters being one race

    2. Ct refused to expedite T-building motion of Bd, they are seeking to rearrange some, we objected in a response, they didn't provide reasons

    3. Ct ruled that the board should comply with the capacity requirements of decree. They must notify the court and seek approval for any violation of requirement 15 days after the start of school.

    ct said no need for an evidentiary hearing now, decree says what it says

    district wants to exceed enrollment limitations to maintain ''neighborhood sensitive schools''

    thats it—Joint task force meeting tomorrow, boston pi will be added to other topics, uni chi and kansas ethnic minority fellowship program

     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, August 4, 1999.
NELSON D. TAYLOR, ESQ.,
Director Counsel,
J. K. Haynes Foundation,
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Baton Rouge, LA.

Re: Davis and United States v. East Baton Rouge Parish School Board, C. A. No. 56–1662–A (M. D. La.); J. K. Haynes Foundation v. United States, State of Louisiana, et al., C. A. No. 99–594–B–3 (M. D. la.)

    DEAR MR. TAYLOR: This is written in response to your letter dated July 19, 1999, concerning the J. K. Haynes Elementary Charter School and the East Baton Rouge Parish School System.

    While we are aware of your belief that the J. K. Haynes Elementary Charter School (charter school) is an independent school operating within the geographical boundaries of the East Baton Rouge Parish School System (school system), the charter school received its charter to operate from the East Baton Rouge Parish School Board and we are therefore unable to view the charter school completely separate from the school system. This does not mean that we view the charter school in the same context as we view the school system with respect to the court orders and consent decrees in this case. Instead, we merely evaluate the charter school in terms of whether its operation has a negative effect on the Board's ability to fulfill its obligations under the extant consent decrees and applicable federal law and to ensure that the charter school itself not undertake discriminatory practices.

    We are more than willing to discuss and/or negotiate an understanding with the operators of the charter school concerning the employment of ways and actions that will avoid or minimize the likelihood of any negative effect(s) on the desegregation process in the East Baton Rouge Parish School System.
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    I look forward to meeting with you to resolve any problems which might exist. If you should have any questions concerning this letter or wish to schedule an initial meeting, I may be contacted at the above-described address or at 202/514–3784.

Sincerely,

Franz R. Marshall, Senior Trial Attorney.

cc:

Robert C. Williams, Esq.
Gideon T. Carter, III, Esq.
John K. Pierre, Esq.
Arthur Thomas, Esq.
Dennis D. Parker, Esq.
Michael C. Garrard, Esq.

     

UNITED STATES DISTRICT COURT, MIDDLE DISTRICT OF LOUISIANA

HAND DELIVERED

CLIFFORD EUGENE DAVIS, JR.,
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et al.,

AND

                              Civil Action

UNITED STATES OF AMERICA

VERSUS

                              No. 56–1662–A

EAST BATON ROUGE PARISH
SCHOOL BOARD, et al.,

RULING ON MOTION IN CONNECTION WITH CHARTER SCHOOLS

    This matter comes before the court upon a motion by the defendant, East Baton Rouge Parish School Board, requesting that the court grant retroactive approval for the establishment of three so-called ''charter schools'' in the Parish as well as approval for their expansion and continued operation. All parties have responded and an evidentiary hearing was held July 20, 1999.
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    The United States in its response chastises the School Board for failing to seek court approval in advance of allowing the charter schools to begin operation but does not oppose the Board's motion. The private plaintiffs and, intervenor, the N.A.A.C.P., oppose the motion. Both also go further and suggest sanctions upon the Board. As explained at the hearing, the court has determined that no such requests will be entertained.

    The Louisiana Legislature enacted the Charter School Demonstration Program Law in 1992. It was amended and reenacted by Act 477 of 1997.

    L.R.S. 17:3972A declares the legislative intent as follows:

''It is the intention of the legislature in enacting this Chapter to authorize experimentation by city and parish school boards by authorizing the creation of innovative kinds of independent public schools for pupils. Further, it is the intention of the legislature to provide a framework for such experimentation by the creation of such schools, a means for all persons with valid ideas and motivation to participate in the experiment, and a mechanism by which experiment results can be analyzed, the positive results repeated or replicated, if appropriate, and the negative results identified and eliminated. Finally, it is the intention of the legislature that the best interests of at-risk pupils shall be the overriding consideration in implementing the provisions of this Chapter.''

    Subparagraph B(l) declares the legislative purpose as follows:

  ''The purposes of this Chapter shall be to provide opportunities for educators and others interested in educating pupils to accomplish the following objectives:
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  (a) Improve pupil learning and, in general, the public school system.

  (b) Increase learning opportunities and access to quality education for pupils.

  (c) Encourage the use of different and innovative teaching methods and a variety of governance, management, and administrative structures,

  (d) Require appropriate assessment and measurement of academic learning results.

  (e) Account better and more thoroughly for educational results.

  (f) Create new professional opportunities for teachers and other school employees, including the opportunity to be responsible for the leaning program at the school ''site.''

    Nothing in the state law's stated intent or purpose impedes in any way the School Board's implementation of the Consent Decree dated August 1, 1996, or any other order of the court.

    Since these schools are funded primarily by a transfer of funds which would otherwise go to the School Board, there is clearly a potential financial problem should resources of such magnitude be withheld from the Board so as to impair its ability to implement its desegregation plan.

    Based upon the evidence presented at the hearing, the court concludes that at the present rate of funding these three small schools pose no financial problem to the School Board in implementation . Of course, each of these public schools is and shall remain, subject to the court's orders relating to desegregation of the public schools of East Baton Rouge Parish.
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    The court concludes that the Board is alert to potential financial and other problems related to desegregation of the public schools posed by the operation of these schools and that the Board will provide proper oversight and demand appropriate accountability from the schools. The court was impressed with the testimony of the President of the board, Mr. Moser, that the folks involved with each of these schools are all dedicated and highly motivated to success in improving public education. Perhaps one or more of the schools will produce programs or ideas that will prove useful to the system as a whole. In any event, the court concludes that their existence poses no threat, at this time, to a federal court's only legitimate interest in local public schools—elimination of racial segregation in the school system.

    Because of the potential for future problems, however, the court concludes that it is prudent to approve only the enrollment limits and grades set forth in the Board's motion for the 1999–2000 school year. Further expansion should be timely requested, if the School Board concludes that it is appropriate.

    Counsel for the United States is correct; the Board did violate the terms of the Consent Decree by failing to request court approval before allowing the charter schools to begin operation. That is not, however, a ''hanging offense.''

    Accordingly, the motion of the East Baton Rouge Parish School Board (doc, no. 1053) is hereby GRANTED to the extent stated herein.

    Baton Rouge, Louisiana, August 2, 1999.

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JOHN V. PARKER,
UNITED STATES DISTRICT JUDGE
MIDDLE DISTRICT OF LOUISIANA
     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, January 27, 1999.
Dr. LOUANN BIERLEIN,
Governor's Office,
Baton Rouge, LA.

    DEAR DR. BIERLEIN: This letter confirms the content of a voice mail message left for your attention last month from Ms. Lisa Evans, of this office, regarding the charter school proposal submitted by SABIS International School of Pine Grove. Our review of the proposal indicates that none of the racial demographics that we stated would be necessary to determine whether a charter school plan would impede desegregation is contained in the current proposal.

    For example, in our December, 1998 letter, we indicated that the October first pupil membership should be broken down to identify the anticipated racial composition of the pupil count by grade. In addition, the charter school plan should identify the sending school (or the local public school the student would be zoned to attend if the student attended the local school system) of each pupil, and the impact of the student's enrollment on the racial composition of the sending school. The application is completely devoid of any mention of the racial composition of the charter school students, faculty or staff. Additionally, the submission lacks racial demographic information of the local public school system.
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    In the absence of such data, we have obtained the enclosed maps based on the most recent census, which shows the racial composition of the under 18 population residing in St. Helena Parish. We note that the population of the area where the charter school will be located is predominantly white. We request that the racial demographics of the parochial and private schools located in the parish be provided to this office.

    Finally, please explain how the 91% at risk figure for St. Helena Parish, as set forth on page 4 of the SABIS application, was derived. Further, please desaggregate this figure by race. Should you have any questions concerning this letter, please do not hesitate to contact me.

    Thank you for your attention to this matter.

Sincerely,

Franz R. Marshall, Acting Deputy Section Chief,
Education Opportunities Litigation Section
     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, March 12, 1999.
Dr. LOUANN BIERLEIN, Education Advisor,
Governor's Office,
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Baton Rouge, LA.

Re: Louisiana Charter Schools

    DEAR DR. BIERLEIN: This letter responds to your correspondence dated January 25, 1999 and February 19, 1999. You seek clarification of my letter to your attention regarding information that the Department of Justice requires in order to evaluate the impact of proposed charter schools in court ordered districts. Below is our response to the points listed 1 through 24 on that addendum:

 1) No comment.

 2) Since the application will now require submission of a copy of the extant desegregation order, we request that specific reference be made to the order on the application.

 3) The anticipated racial composition is acceptable. We request that the actual information be provided as soon as it is available.

 4) Preliminary information will suffice with the same caveat as stated above.

 5) Same as above.

 6) While it may not be possible to have exact data regarding students residing within a particular attendance zone, preliminary information can be provided by census track, and the demographics of the public schools located in the immediate area. This would provide the parties with some indication as to whether the charter school would open as a one race school.
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 7) While a list of admissions requirements is already contained in the charter school proposal, a statement regarding the impact of such requirements on racial minorities is not.

 8) The cite for this case is Singleton v. Jackson Municipal-Separate School District, 419 F.2d 1211 (5th Cir. 1969), cert. denied, 396 U.S. 1032 (1970).

 9) No comment.

10) We believe that this information can be made available prior to the opening of school. The employees would presumably be hired prior to the first day of class.

11) No comment.

12) See our comment 10, above.

13) See discussion below.

14) See comment 6, above.

15) This information can be provided at the time of site selection.

16) The question seeks to determine whether reopening a formerly closed public school as a charter will impact desegregation efforts. Perhaps review of the previously submitted desegregation information would aid your understanding this subject area.
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17) See comment 16, above.

18) The question seeks to illicit whether locating a new charter at another site would promote desegregation. In other words, if a charter school is planning to open in a predominantly black community, would the selection of an alternative, more integrated community promote desegregation in the parish.

19) See 15, above.

20) Many extracurricular activities are academic in nature: Knowledge Bowl, Model U.N., Science Club, Beta Club, etc. If such activities are offered at the charter school, we would like to know whether such opportunities will be made available to other students in the parish.

21) No comment.

22) We do not understand why the validity of such information would be questioned, since the amount and attendant impact would be based on application of a mathematical formula.

23) See 3 above.

24) Provide as soon as family level is set.

    To the extent that several of the information requests seek information that cannot be provided prior to the opening of the charter school, we suggest that the sponsoring entity seek conditional approval from the court until such time as all of the requested information is provided to the United States. All of the data is relevant to the impact that the charter school will have on the court ordered district. In the absence of this information, we cannot fulfil our duties as an officer of the court, and party to the underlying desegregation order.
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    Finally, your February 19, 1999 letter supplied information regarding the demographics of the St. Helena Parish. You indicate that the student enrollment was 91.5% black, 8% white, and .5% other. Our concern, however, is with the demographics of the area (attendance zone) in which the charter school will be located. Based on our review of the census maps showing the under 17 population of the Parish, it appears that the school will be located in or adjacent to a predominantly white community.

    You state that there are ''no approved parochial or private schools'' within St. Helena Parish. We have been advised, however, that such schools do exist in neighboring Parishes, Community Christian Academy in Livingston, and Mater Dolorosa, and Oak Forest in Tangipahoa and that significant numbers of students from St. Helena Parish attend these schools. We would like to know how many students by race reside in St. Helena Parish, but attend a private or parochial school in the immediate area. Such data should be available from the Louisiana Department of Education. Finally, we have not received the projected racial composition of the students and faculty of the SABIS International School of Pine Grove.

    We hope this information is helpful. Should you have any questions, please do not hesitate to contact me, or Lisa Evans of this office.

Sincerely,

Franz R. Marshall, Acting Deputy Chief,
Educational Opportunities Litigation Section
     
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New Vision Learning Academy
Monroe, LA, July 6, 1998.
Mr. FRANZ R. MARSHALL, Senior Trial Attorney,
U.S. Department of Justice, Civil Rights Division,
Educational Opportunities Litigation Section,
Washington, DC.

    DEAR MR. MARSHALL: It was our pleasure to talk with you briefly on June 25th in Baton Rouge and to have your helpful advice on the steps we needed to pursue to obtain the review of our charter school application for its compliance with the school desegregation court for the Monroe City School District, as required by the Louisiana Board of Elementary and Secondary Education.

    The New Vision Learning Academy, Incorporated, is a proposed charter school that will primarily serve the children and families living in Monroe, in the Booker T. Washington/South Monroe community, a federal empowerment zone. This community—the third poorest of its size in the US is characterized by public housing, low income, high percentages of children who qualify for free school lunch, high unemployment, low college attendance, high literacy and generational poverty. The area is populated primarily by African-American families, headed by single-parents desperate to help their children have a better life.

    The Academy is evident of this community's uncommon commitment to improve the education available to their children in grades K–12. The Academy has a two-fold mission. The first mission of the proposed charter school is:
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To enhance the personal growth and educational development of children, and through an academically sound program, to produce intellectually able, technologically competent, morally stable, psychologically and physically healthy, capable and contributing citizens of the next century.

    The School's second mission is

To increase the meaningful involvement of parents and the community in the education of their children, and to provide services and programs that will strengthen both families and the community.

    The Academy will provide the children an outstanding, challenging program tailored to meet their specific needs. The School's key strengths and innovative features include: an educational program which will incorporate Direct Instruction, Core Knowledge, character studies and an exceptionally rich curriculum; an expanded school year and day; a ''personalized instructional plan'' for each student; low overall enrollment and small classes; a strong parent/community involvement/responsibility component; special courses and strategies provided to all the children to break the cycles of generational poverty and the children's historically poor performances in specific academic areas; a safe, orderly, learning environment; 21st century technology and a school-wide, academic and administrative interactive computer network; and site based management, team planning and professional development for faculty and staff. According to reviewers, the New Vision proposal is the strongest and most carefully designed charter school application submitted.

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    In July the Monroe City School Board of Education formally declined The New Vision Learning Academy, Incorporated application to establish a Type I charter school. The sponsors of the proposed school immediately appealed to the Louisiana Board of Elementary and Secondary Education. In June 1998, the State Board granted approval for a Type II charter school, pending a review of the application by a federal judge or the US Justice Department for compliance with the desegregation order in effect in the Monroe district. As indicated in its application, the School agrees not only to comply with the school desegregation court order, but with all other applicable state and federal laws, regulations and policies.

    Hence, in this letter we are requesting your expeditious review of the application enclosed along with the modifications we've prepared in response to the Charter Application Review Committee's requests. We have also described below a brief history of tile evolution of our application, and the School's potential impact and benefits to the local district and community.

1. Monroe City School's initial support—

    The Monroe City Schools initially in meetings with concerned citizens and other school personnel suggested support of the charter application, on the condition that the School serve exclusively as an alternative site for problem students. However, the sponsors could not compromise their vision for serving the needs of all the children.

2. Monroe City School's subsequent opposition—

    Since then Monroe City Schools has contended that the charter school will negatively impact the local district's financial status and its desegregation compliance.
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    Teachers and others persons employed by the Monroe City School system may have been discouraged by reported actions of some of the Monroe City School personnel. Such action could have created a serious problem for the New Vision Board and sent tile wrong signal to others who may wish to be employed by the charter school.

3. Potential impact on the district's ability to comply with the desegregation order—

a. From the perspective of the racial composition of the student body—

    Since the School is located in Booker T. Washington/South Monroe, a federal Enterprise, mostly poor African American, public housing community, the student body of the charter school would look very much like the local neighborhood and the local school district. As A Type II charter, the School is required by the State to admit any eligible student residing in Louisiana. However, the School must also enroll at risk students in proportion to those attending the local school system. In this case, at least 77% of the students admitted will be at risk (i.e., participants in free/reduced federal school lunch program, students reading two or more years below grade level, students who have dropped out, or those who have failed to meet graduation requirements). Hence, the racial composition of the charter school's student body would be basically the same as that of the district.

b. From the perspective of the net Financial impact on local school district

    The local school district will be impacted financially, approximately $1,756 for each student previously enrolled in the district, not the millions the district claims. The net difference will be the amount of $3,000 the state provides per pupil (which New Vision, not the district will receive for the children who attend the charter school) minus the local per pupil allotment of $1,244 (which the local district will keep even though the children will be enrolled elsewhere).
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    The New Vision Academy will maintain a limited enrollment. It will enroll 194 students in grades K–4 in tile first year, and plans to add one grade (or approximately 40 children) per year over the next four years. Hence, the projected student enrollment over the five year charter period is: year 1/194; year 2/234; year 3/274; year 4/314; and year 5/354.

    In its Application for Injunctive Relief, the Monroe City School Board stated that New Vision planned to enroll 200 students/year 1; 400/year 2; and 600/year 3. These figures are simply wrong and quite misleading, and indeed create a distorted picture of the negative financial impact the local district might experience.

c. Any financial impact on local school district will be offset by a series of benefits, such as the following—

(1) new school facility & property valued at $2.2 million—at no cost to MCS.

(2) reduced student:teacher ratio system-wide, resulting in increased individualized attention and improved student achievement.

(3) effective, innovative school reform models proposed by the charter school which are adopted by the local school district.

(4) reduced amounts of instructional materials per classroom per year.

(5) decreased failures, suspensions & expulsions, drop out incidences
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(6) improved academic performance, improved test scores, high school completion & college attendance

(7) set standards for increased educational accountability to the state & community.

4. Benefits to the community—the third poorest of its size, in the US

    The proposed Academy will:

  a. stimulate economic development by creating new jobs within the immediate community.

  b. Provide an acceptable educational option for children of dissatisfied parents who have been bussed approximately 80 miles roundtrip daily, 14,400 miles each year per child for almost 10 years to a school outside Monroe City School district.

  c. Community building—community-based programs and permanent partnerships of residents, community leaders, businesses, universities and non-profit organizations will be established. The Academy will serve as a community service center—a common site for education, information, services, and social activity.

  d. Social revitalization—youth and adult-based programs to lower crime and gang participation.

  e. family strengthening—family relationships and health will be improved. Parents will be provided specific support, such as the child care center and the before & after care programs. Services such as these will especially help parents transitioning from welfare who are seeking job training, education and/or employment. The proposed School will emphasize intergenerational involvement & interaction through programs ranging from infant care to senior citizen day camp and senior mentors.
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  f. Increased parent, particularly fathers', involvement and volunteer and community participation/responsibility for children & their education.

  g. Cyclical poverty and unemployment reduced through improved educational advancement, and economic & community development.

  h. Higher level of satisfaction among students, parents, teachers and community volunteers.

    We look forward to your assistance of the enclosed application's compliance court order. We will be pleased to provide any additional information you might need in reaching your determination.

Sincerely,

Andrew J. Mansfield.

Enclosures: Applications & Modifications

cc: Weegie Peabody

     


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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, January 14, 1998.
WAYNE D. HAGLUND, ESQ.,
Cassells, Haglund & Clark,
Lufkin, TX.

Re: United States v. Texas Education Agency (Lufkin Independent School District) Civil Action No. 5193

    DEAR MR. HAGLUND: This is in response to your January 2, 1998 letter regarding the proposed Pineywoods Community Academy charter school.

    We have reviewed the applicable provisions of the Texas Education Code, and the Pineywoods Community Academy 1998 application to the TEA that you provided. In view of the LISD,s continuing desegregation obligations in the above-captioned case and under U.S. v. Texas, Civil Action No. 5128, and our review, we agree with the LISD's determination that the creation of this proposed charter school may have an adverse effect upon desegregation in the school district.

    Please advise us of the TEA's ultimate determination regarding creation of the proposed charter school.

Sincerely,

Salliann S. M. Dougherty, Senior Trial Attorney,
Educational Opportunities Section.
     

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Monroe, Louisiana (W.D. La.)

    On July 9, 1998, the court convened an in-chambers conference to consider the defendant's motion for a temporary restraining order (TRO) in Andrews and United States v. Monroe City School Board. Earlier this year, defendant filed a motion for a TRO asking the court to enjoin the Louisiana State Board of Elementary, Secondary Education (BESE Board) and the New Visions Learning Center (a charter school operated by an all-Black church) from implementing the BESE Board's recent approval of the charter school to operate in Monroe, Louisiana. In conference, the court persuaded defendant to withdraw its motion and required the proposed charter school to file, by August 20, 1998, information describing: projected student enrollment and faculty by race; proposed attendance area; recruitment program; and school term. The court indicated that it would set the defendant's motion for a permanent injunction for a hearing shortly after August 20, 1998, to consider whether the chapter school will be allowed to open.

    Alexandria, Louisiana On October 6, 1998, the court (W.D. La.) (Little,C.J.) held an evidentiary hearing in Andrews and U.S. v. Monroe City School Board to consider the defendants' motion for a preliminary injunction to enjoin either or both the Board of Elementary and Secondary Education from authorizing the continued operation of the New Visions charter school and/or enjoin the charter school board from operating the charter school. After hearing testimony from two witnesses, the court ordered a short recess during which the parties began negotiations which resulted in a tentative agreement. The court continued the hearing until October 26th to allow the parties to develop a consent agreement. Essentially, the agreement would limit the number of students residing in the City of Monroe who could be admitted to the charter school.
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    Under The Charter School Demonstration Law enacted by the Louisiana legislature, an entity wishing to operate a charter school must initially apply to the local school board for authorization, upon failure to receive such authorization , the entity then may apply to the State Board of Elementary and Secondary Education for the necessary authorization. In this instance, the New Visions charter school board had twice been denied by the local school board. Subsequently, the state board approved the operation of the charter school. Pursuant to state law, the charter school, upon approval by either body, operates as a public school and as such, receives the state funding that the local school board would have received for the education of the students enrolled. Additionally, if approved by the local school board, the attendance area of the charter school is limited to the local school district. On the other hand, if approved by the state board, the attendance area of the charter school is the entire state.

    Here the local school board alleged as support for its motion that operation of the charter school would negatively affect their ability to fulfill the requirements of the extant desegregation plan and relevant federal case law. The local school board alleged that the loss of state funds combined with the fact that the loss of students was not significant enough to lower costs but instead had the effect of increasing per pupil costs impaired the ability to operate the magnet desegregation programs and the remedial programs required under the desegregation plan.

    (169–33–35) (Franz Marshall, 514–3784)

     

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Tensas Parish School Board,
St. Joseph, LA, May 20, 1999
Ms. WEEGIE PEABODY, Executive Director
Board of Elementary and Secondary Education,
Baton Rouge, LA.

Subject: Tensas Parish Reunion, Inc. Elementary Charter School Application

    DEAR MS. PEABODY: The Tensas Parish Public School System has recently received notification from your office that a charter school application has been filed with the Board of Elementary and Secondary Education by Tensas Parish Reunion, Inc. The School System has been invited to make any comment as follows:

    The Tensas Parish School Board has already denied the charter school application of Tensas Parish Reunion, Inc. and would request that the Board of Elementary and Secondary Education do likewise. Some of the reasons for the denial by the School Board of the application are as follows:

(1) The charter school application indicates that Tensas Parish Reunion, Inc. would operate a school for students in grades K–3 in the Waterproof Community of Tensas Parish. The Tensas Parish Public School System currently operates a K–6 elementary school in Waterproof with an enrollment of only about 130 students. If the charter school is successful in attracting any of those students away from the school, then the school system may have no alternative but to consider its closure.

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(2) The Tensas Parish Public School System is facing serious financial difficulties. Indeed, the school system has been advised that, if it cannot increase the local level of funding by the end of the year, it faces a substantial loss of MEP funding which would result from students leaving the public school system to attend the charter school.

(3) Because of its severe financial difficulties, the public school system pays its teachers only the state minimum salary. As a result, it is virtually impossible for the school system to recruit and retain certified teachers. If any of the teachers of the school system are recruited to teach in the charter school, it would be virtually impossible for the school system to replace them.

(4) The Tensas Parish School Board is currently operating under a school desegregation plan ordered by the United States District Court of the Western District of Louisiana. Since creation of the charter school could take students out of the public school system and would result in a loss of MEP funding to it, it would seem the Federal Court approval of the opening of that school would be required. The parties in that litigation are the Tensas Parish School Board and the United States Department of Justice, and it is clear that neither of those parties intends to move the Court for an order permitting the establishment of a charter school. As a result, it would appear to be the responsibility of the charter school proponents to successfully intervene in the school desegregation case and to convince the Federal Court that the establishment of such school would not negatively impact the exiting orders of the Court.

    In conclusion, the Tensas Parish School Board is already operating five schools to educate only 1,200 students in Tensas Parish. The School Board sees no reason to establish a sixth school (not counting the local private school) in its parish. For the reasons stated above, and, for a number of other reasons not delineated herein, the Tensas Parish School Board would urge the Board of Elementary and Secondary Education to disapprove the charter school application submitted by Tensas Parish Reunion, Inc.
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    In any additional information or documentation would be helpful to your review of this charter school application, please feel free to contact this office. I would also ask that you keep this office fully informed about this application as it works its way through the BESE process.

Respectfully,

Donald H. Pennington, Superintendent.
     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, May 27, 1999.
ROBERT L. HAMMONDS, ESQ.,
Hammonds & Sills,
Baton Rouge, LA.

Re: United States v. Tensas Parish School Board, Civil Action No. 14,797 (W.D, La. (Monroe Div.))

    DEAR MR. HAMMONDS: I am writing as a follow-up to our telephone conversation last week.

    We understand that for the 1999–2000 school year, the Tensas Parish School Board has proposed assigning Waterproof students in grades 7 and 8 to Lisbon Elementary School instead of Davidson High School (as was done during the 1998–99 school year). In order to determine whether Lisbon can accommodate these students and provide an academic program comparable to the 7th and 8th grade programs offered at Routhwood Elementary School and Davidson, we request that the Board provide the following information:
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1. The number of 7th and 8th grade students, by race and grade, who would be reassigned from Davidson to Lisbon; and the number of 7th and 8th grade students, by race and grade, who would be assigned to Davidson.

2. The age of each 7th and 8th grader who would be reassigned to Lisbon.

3. The failure rate for 7th and 8th grade students who would be reassigned to Lisbon; and the failure rate for 7th and 8th grade students who would remain at Davidson.

4. Whether Lisbon's current configuration can accommodate 7th and 8th grade classes (including, e.g., classroom space, lab space, and gymnasium), and, if not, what arrangements will be made to accommodate these additional grades.

5. The academic and extra-curricular programs that are being offered to 7th and 8th graders at Routhwood and Davidson.

6. The academic and extra-curricular programs that will be offered to 7th and 8th graders who would be reassigned to Lisbon and to 7th and 8th graders who would remain at Davidson.

7. The number of teachers that will be assigned to Lisbon to teach 7th and 8th grade, whether they will be certified, and whether they will teach subjects in which they are certified.

8. The Board's plan for providing textbooks and instructional materials to 7th and 8th graders who would be reassigned to Lisbon.
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    We also discussed in our conversation that it appears the Board will not submit a bond referendum to the voters this year to address facility construction and improvement. Instead, the Board will probably seek to pass a millage tax for the operation of the existing schools. Please keep us informed as the Board considers plans for facility construction and improvement. Additionally, if the Board decides to seek voter approval for a millage tax, I ask that you provide us with a copy of the proposed tax plan, and any information concerning how the proceeds from such a tax would be spent at each school.

    Finally, please keep us informed of the Board's discussions with BESE concerning the proposed charter school in Waterproof. I look forward to receiving copies of the charter school application and the Board's response to BESE's May 6, 1999 letter.

    Please do not hesitate to call me at (202) 514–4858 if you would like to further discuss any of these matters.

Sincerely,

Javier M. Guzman, Trial Attorney.
     


U.S. Department of Justice,
Civil Rights Division,
Washington, DC, June 16, 1999.
ROBERT L. HAMMONDS, ESQ.,
Hammonds & Sills,
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Baton Rouge, LA.

Re: United States v. Tensas Parish School Board, Civil Action No. 14,797 (W.D, La. (Monroe Div.))

    DEAR MR. HAMMONDS: Thank you for your two letters of June 8, 1999. Based on our review of the information contained in your letters, we would not object to Court approval of the Davidson/Newellton high school arrangement and of having 7th and 8th grade students that reside in Waterproof attend Lisbon Elementary School under the circumstances outlined below.

I. Davidson High School

    We would not object to Court approval to the continued consolidation of Waterproof and Davidson high schools (with the exception of Waterproof 7th and 8th graders as discussed below) for the 1999–2000 school year upon receiving the following assurances and information from the Board.

1. Consolidation will be under the same conditions set forth in the September 8, 1998 consent decree at pages 3–6. These conditions will be amended to make them applicable to the 1999–2000 school year.

2. Davidson will offer the higher level agriculture classes (Agriscience/Agribusiness III and IV and Ag-Lab III and IV) to students who have taken the lower level agriculture classes; and will offer Accounting I and 11 if there is sufficient student interest.
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3. The Board will continue its current search for a band and choir instructor for Davidson, and upon hiring an instructor, offer band and choir to students.

4. The Board provides a further explanation about how instructional equipment funding is provided to Davidson and Newellton high schools. The statement in your June a letter (responding to my May 13 letter) that Davidson and Newellton are ''provided [funding] in the same manner and amount depending on student enrollment and number of teachers' raises several questions. Is the Board using a per-student formula for distributing instructional equipment funds to the high schools? If so, how is the per-student amount determined? How much instructional equipment funding was provided to Davidson and Newellton respectively? What is the role of the number of teachers at Davidson and Newellton with respect to instructional equipment funding? Additionally, as part of its annual report, the Board was to provide a listing of instructional equipment, textbooks and other improvements purchased for Newellton for the past school year. This information has not yet been provided.

II. Expansion of Lisbon Elementary School

    We would not object to Court approval to assigning 7th and 8th graders from the Waterproof area to Lisbon Elementary School for the 1999–2000 school year upon receiving the following assurances from the Board.

1. Lisbon can safely and adequately accommodate these 7th and 8th graders in an appropriate instructional setting.

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2. Lisbon will offer the academic and extracurricular program described in Ms. Dix's memorandum to Superintendent Pennington (attached to your June 8 letter responding to my May 27 letter) .

3. The Board will allow Lisbon students to transfer to either Davidson or Routhwood Elementary School to participate in activities or programs not offered at Lisbon. The Superintendent will notify Waterproof parents of this transfer option before the start of the 1999–2000 school year and advise them of any activities or programs being offered at Davidson and/or Routhwood that are not being offered at Lisbon.

4. Routhwood, Davidson and Lisbon will maintain the same approximate percentage of certified teachers, and the same approximate student/teacher ratios.

5. 7th and 8th graders at Lisbon will be provided with textbooks and instructional materials comparable to their counterparts at Davidson and Routhwood.

6. At the conclusion of the 1999–2000 school year, the Board will provide us with the number of 7th and 8th graders who attended Lisbon, by race, grade and age, and whether each such student passed or failed for the year.

III. Miscellaneous

    The Superintendent's June 1 letter enclosed the Board's response to BESE concerning Tensas Parish Reunion Inc.'s charter school application but not the application itself. I would appreciate if you could have a copy of the application faxed or sent by overnight mail to me.
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    Additionally, I understand from your correspondence that the 1998–99 yearbooks will not be available until later this year. Please provide me with copies of those yearbooks when they are published this year.

    Please contact me after you have discussed this letter with the Board in order to determine how the parties should proceed with respect to the Davidson and Lisbon arrangements.

Sincerely,

Javier M. Guzman, Trial Attorney.
     


United States Department of Education,
Office for Civil Rights, Region IV,
Atlanta, GA, May 14, 1997.
Dr. HERMAN GAITHER, Superintendent
Beaufort County School District,
Beaufort, SC.

    DEAR DR. GAITHER: On April 22, 1997, we were contacted by attorneys representing the Beaufort County School District (District) regarding an application requesting approval, pursuant to the South Carolina Charter Schools Act of 1996, for a charter school in the District. We were specifically requested to provide the District with written guidance regarding its obligations under the existing voluntary desegregation plan relative to the establishment of this school.
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    The United States Department of Education recognizes and supports the concept of charter schools as a powerful tool for communities to strengthen opportunities within public education and attain high standards of achievement and discipline. While providing substantial flexibility in educational programming and administration, both Federal legislation and South Carolina state law require that these schools comply with applicable civil rights requirements. Title VI of the Civil Rights Act of 1964 Title VI), 42 U.S.C. Sections 2000d et seq. and its implementing regulation, 34 C.F.R. Part 100, prohibit discrimination on the basis of rare in any program or activity receiving Federal financial assistance. The District is a recipient of Federal funds and is, therefore, subject to the requirements of Title VI. Further, since, both under state law, and in practice, a charter school established pursuant to the South Carolina Charter School Act of 1996 is a public school ''accountable to'', and funded by the district in which it is located, that local school system is legally responsible for complying with all of the requirements of Title VI with respect to the establishment and continued operation of the charter school.

    As you know, the District currently operates under a voluntary Title VI desegregation plan approved by the Office for Civil Rights (OCR). This plan requires, in part, that the District provide OCR with notice, and an opportunity for review and approval, of all proposed new schools, grade changes, zone changes, etc. to ensure consistency with the OCR Title VI desegregation plan. These reporting requirements, applicable to districts operating under voluntary desegregation plans, are necessary in order for OCR to fulfill its statutory obligation to ensure that the District fully complies with, and implements, all of the various provisions of its Title VI plan.

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    Consistent with these reporting requirements, as would be required of any proposed new school in the District, it will be necessary for the District to submit information regarding the planned charter school. We are, therefore, requesting that you provide the following preliminary information:

1. A description of the admissions process of the proposed charter school, and if the proposed charter school is to have ''open enrollment,'' an explanation of how the enrollment process will be conducted;

2. A description of the recruitment process for the proposed charter school and how it will impact the charter school enrollment;

3. The projected racial composition of the charter school student body, faculty, and staff;

4. The impact that the charter school will have on the racial composition of the other public schools in the District; and

5. A description of the transportation plan for students attending the charter school who live outside the walk zone.

    In light of the South Carolina Charter School Act which provides the State a role in approving charter school applications, it may be appropriate to coordinate your response to the above questions with the State.

    Thank you for your cooperation in this matter. If you have any questions or concerns, please contact Roger Mills, Staff Attorney.
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Sincerely,

Gary S. Walker, Director.

cc: Dr. Barbara S. Nielsen, State Superintendent of Education

     

IN THE DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF SOUTH CAROLINA, CHARLESTON DIVISION

UNITED STATES OF AMERICA

Plaintiff,

                          CONSENT DECREE
                          Civil Action No. 69–43

V.

GEORGETOWN COUNTY SCHOOL
DISTRICT, GEORGETOWN COUNTY,
SOUTH CAROLINA, et al.

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Defendants.

Original Filed: August 28, 1997
Larry W. Propes, Clark, Charleston, SC

CONSENT DECREE

    This case is commonly known as the Georgetown County, South Carolina school desegregation case. Plaintiff, the United States, filed the original complaint in this case on January 15, 1969. There have been several orders in the case, the most recent of which was entered on September 2, 1980. That order pertained to, school construction, expansions and closings.

    The United States believes that the Defendants (''District'') have not complied fully with previous orders of this Court and federal desegregation law in certain areas, including student assignment, teacher assignment, school construction and expansion, and the equitable provision of educational opportunities. The parties recognize that steps must be taken to further desegregate the Georgetown County school system and to further comply with the previous orders of the Court and federal desegregation law. Therefore, the parties have agreed to enter into this Consent Decree.

    After reviewing the terms of this Consent Decree, this Court concludes that the entry of this Consent Decree is consistent with the Fourteenth Amendment of the Constitution of the United States of America and federal law and that the entry of this Consent Decree shall further the goal of orderly desegregation of the District.
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    Therefore, it is ORDERED, ADJUDGED AND DECREED as follows:

I. NEW HIGH SCHOOL AND MIDDLE SCHOOL

    1. The parties acknowledge that the District has a duty to alleviate, to the extent practicable, the continued racial isolation of students assigned to the current Choppee Middle/High School, and to ensure that such students are afforded facilities, classes, courses, programs, activities, services, other offerings, resources and a quality of education (collectively referred to as ''educational opportunities'' throughout this Consent Decree) that are fully comparable to those available at each of the other schools in the District serving the same grades.

    2. The District has called for a bond referendum to be held on September 20, 1997, in an effort to raise funds to build, renovate and make additions to a number of schools, including a new high school to replace the current Choppee and Pleasant Hill high schools, and a new middle school to replace the current Pleasant Hill and Choppee middle schools (hereafter ''new Carvers Bay schools''). If the bond referendum is successful, the new Carvers Bay schools shall be located on land to be acquired by the Board in the vicinity of the intersection of Carvers Bay Road and Choppee Road. The new Carvers Bay schools shall open by the beginning of the 2001–2002 school year. However, if feasible, the new Carvers Bay schools shall open at the beginning of the 2000–2001 school year.

    3. The attendance zone for the new high school and middle school shall be the combination of the current Choppee and Pleasant Hill zones. Any future change to the attendance zone shall ensure that, to the degree practicable, the racial composition of student enrollment of the zone approximates the racial composition of the School District's student enrollment as a whole. Any future change to the attendance zone shall at least maintain the degree of desegregation then existing in the new Carvers Bav schools.
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    4 The new high school shall serve grades nine through twelve (9–12) and the new middle school shall serve grades six through eight (6–8).

    5. Both new Carvers Bay schools shall have ''state-of-the-art'' facilities which shall compare favorably to the facilities at other schools in the District.

    6. The District shall ensure that the new Carvers Bay schools provide classes, courses. programs, activities, services, other offerings, resources and a quality of education (collectively referred to as ''educational opportunities'' throughout this Consent Decree) that are fully comparable to those available at the other schools in the District.

    7. The new Carvers Bay schools shall have resources, including but not limited to, science, technology, career orientation, vocational, media and staff resources that compare favorably to the resources (and student access to them) at each of the other schools in the District serving the same grade levels.

    8. The quantity and quality of the extracurricular activities (including, but not limited to, athletics) provided at the new Carvers Bay schools shall compare favorably to the extracurricular offerings offered at each of the other schools in the District serving the same grade levels.

    9. In assigning personnel to the new Carvers Bay schools, the District shall ensure that the quality of the certified and non-certified staff at the new Carvers Bay schools compares favorably to those at each of the other schools in this District serving the same grade levels. Employee re-assignments may be necessary to effectuate this requirement.
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    10. The parties understand that the construction and projected opening of the new Carvers Bay schools by the 2001–2002 school year is contingent upon voter approval of the September 20, 1997 bond referendum.

II. ELEMENTARY SCHOOLS

    11. If the September 20, 1997, bond referendum is approved, the District shall build a new elementary school in the Nine Mile Curve area to replace the current Sampit Elementary School and to relieve the overcrowding of Andrews Elementary School. The attendance zone for the new Sampit Elementary School shall be determined by the agreement of the parties and shall be appended to this Consent Decree as an Attachment. The attendance zone shall be drawn to ensure that, to the degree practicable, the racial composition of student enrollment of the new Sampit Elementary School approximates the racial composition of the school District's student enrollment as a whole. Any future change to the attendance zone shall at least maintain the degree of desegregation then existing in the new Sampit Elementary School.

    12. Regardless of the outcome of the September 20, 1997, bond referendum. the District shall conduct a study of the current elementary school zone lines in the District to determine whether practicable adjustments to the zones will increase desegregation among the elementary schools. If significant additional desegregation will result from any practicable zone change, the District shall propose such zone changes to the United States. Any elementary school attendance zone changes agreed to by the parties shall be appended to this Consent Decree as an Attachment. Any new elementary school attendance zones shall be implemented by the beginning of the 1998–99 school year.
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III. EVALUATION COMMITTEE

    13. The District shall ensure that the current Choppee Middle/High School, Browns Ferry, Sampit and Plantersville elementary schools provide educational opportunities that are unsurpassed in the District and that the educational needs of the student populations of these schools are being fully addressed.

    14. To ensure compliance with paragraph 13 above, the District shall form a committee (''Evaluation Committee'') that shall conduct a comprehensive evaluation of the educational opportunities and student performance at the current Choppee Middle/High School and Browns Ferry, Sampit and Plantersvilte elementary schools. Among other things, the comprehensive evaluation shall fully examine and compare the current facilities and educational opportunities offered at each of the elementary and middle/high schools in the District.(see footnote 73) The Evaluation Committee shall propose measures to correct all unfavorable disparities (if any) at Choppee Middle/High School and Browns Ferry, Sampit and Plantersville elementary schools.

    15. Furthermore, the Evaluation Committee shall examine current student performance at Choppee Middle/High School and Browns Ferry, Sampit and Plantersville elementary schools. If there are significant numbers of students at any of these schools who are not performing at or above grade level, the reason(s) for such deficits shall be examined and proposals shall be made to address the underperformance and to increase averai!e student achievement at these schools.(see footnote 74)

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    16. The District shall select members for the Evaluation Committee in such a manner as to ensure the integrity and independence of the Evaluation Committee. The Evaluation Committee shall include, as the District determines to be appropriate, outside educational researchers and practitioners and at least one school desegregation expert. The District shall provide reasonable funding for the work of the committee. The District shall consult with the United States before selection of the Evaluation Committee and shall provide the United States with the names and resumes of its proposed committee members by September 1, 1997.

    17. The Evaluation Committee shall provide a comprehensive report (or reports, if minority reports are also submitted) to both the Defendant and the United States describing the committee's evaluation, conclusions and recommendations by February 1, 1998. The parties shall be allowed to communicate with the committee members.

    18. Informed by the Evaluation Committee's report, the District shall then develop, a comprehensive plan that:

  a.) ensures that the current Choppee Middle/High School and Browns Ferry, Sampit and Plantersville elementary schools provide educational opportunities that are unsurpassed in the District.

  b.) fully responds to the Evaluation Committee's evaluations, conclusions and recommendations.

  c.) ensures that the educational needs of the student populations of these schools are being fully addressed; and
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  d.) provides for effective monitoring of the plan's implementation.

    Upon approval of the United States, the District shall adopt and implement the plan.

    19. Along with its comprehensive plan. the District shall also provide to the United States all of the information and data (and list the sources of all such information and data) that the District examined or compiled in the process of preparing the District's comprehensive plan. The District also shall provide all information and analysis regarding each option considered in preparing the comprehensive plan (including, but not limited to, the recommendations of the Evaluation Committee), a full explanation of the reasons for rejecting any option and the reasons why the submitted plan was approved by the District for submission to the Court. Furthermore, for each proposed change to current District operations and structure, the District shalt describe the timeline for implementation, the resources necessary for implementation and the projected budget for implementation.

    20. The District shall submit the evaluation plan to the United States by April 1, 1998, for review and to the Court by May 1, 1998, for approval.

IV. CONSTRUCTION AND RENOVATION

    21. In addition to complying with the terms of the May 21, 1970, Court Order, as amended, the District shall provide at least sixty days notice to the United States of any plans to build, close, expand, or substantially renovate any school facility.
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    22. If the September 20, 1997 bond referendum does not pass, the District shall not undertake any new construction or substantial renovation, except as described in paragraph 23 below, until the District has satisfied its desegregation obligations as they relate to Choppee Middle/High School and the Browns Ferry, Sampit and Plantersville elementary schools. However, if conditions at other schools should threaten student safety or substantially impair the District's ability to educate students, the District may petition the Court for approval to construct new facilities or undertake substantial renovation to address such exigencies. Similarly, the United States may petition the Court for further relief if it appears that the District is not fulfilling its desegregation obligations.

    23. The District currently has a number of substantial maintenance and retrofitting needs, such as replacing sewage systems and wiring schools to accommodate computer technology. If the September 20, 1997, bond referendum does not pass, the District may, at its discretion and in accordance with State law, fund such renovation and improvements by increasing millage rates. However. if such renovation and improvement is undertaken, regardless of how it is funded, the District shall ensure that the current Choppee Middle/High School and Browns Ferry, Sampit and Plantersville elementary schools are renovated and so that the schools compare favorably with the other schools of like grade level in the District. In no way shall renovations or improvements result in the current Choppee Middle/High School and Browns Ferry, Sampit and Plantersville elementary schools being inferior in facilities or resources relative to other schools of like grade in the District.

V. ASSIGNMENT OF TEACHERS AND ADMINISTRATORS

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    24. Teacher and administrator assignment is an integral part of school desegregation and a significant factor in the racial identifiability of schools. See, Singleton v. Jackson Mun. Separate Sch. Dist., 419 F. 2d. 1211 (5th Cir. 1969) (en banc), cert. denied. 396 U.S. 1032 (1970). The faculties and administrations of a number of schools in the District currently are racially identifiable.

    25. By August 15, 1997, the District shall submit to the United States a detailed faculty assignment plan demonstrating how the District shall come into full compliance with the teacher assignment provisions of the May 21, 1970, Court Order by the beginning of the 1998–99 school year.(see footnote 75) A given school shall be deemed to be in compliance regarding teacher assignment if the racial or ethnic composition of certified and non-certified teachers and assignment assistants is within plus or minus ten percentage points of the corresponding District-wide racial or ethnic composition. The assignment of administrators must not, in the aggregate, exacerbate the racial identifiability of schools within the District.

    26. The District shall adopt and implement mechanisms to assign faculty and administrators that ensure sustained compliance.

VI. INTRA-DISTRICT TRANSFERS AND STUDENT ASSIGNMENT CONTINUITY

    27. Except those students who are rezoned or reassigned under the terms of this Consent Decree, any student who lives within the boundaries of Georgetown County and who, as of December 1, 1997, is enrolled in a Georgetown County public school, may, at the District's discretion, continue to attend the school that the student attended on December 1, 1997, until the student graduates from that school.
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    28. However, no intra-District transfers shall be allowed in the future unless:

  a.) the student transfers to a school at which his or her parent or legal guardian is a full time staff member;

  b.) the student is a special education student and it is unreasonable to provide appropriate educational seances to the student at the student's school of assignment:

  c.) the student qualifies as a desegregative transfer student (as defined in Paragraph 29 below); or

  d.) the transfer addresses a bona fide child care problem.

    The District may seek the United States' written consent and petition the Court for approval of other transfers if health or safety emergencies mandate additional transfers.

    29. A desegregative student transfer is defined as a transfer in which each of the following conditions are met:

  a.) the percentage of students of a given race at the school from which the student desires to transfer is greater than the average District-wide percentage of students of that race;

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  b.) the student who wishes to transfer is of that same race; and

  c.) the percentage of students of that same race at the school to which the student desires to transfer is less than the average District-wide percentage of students of that race and in the minority at that school.

    30. Each student who qualifies for a desegregative transfer shall be allowed to transfer to the qualifying school of the student's choice, with transportation provided by the District, unless the District can show that the transfer will either cause undue hardship or conflict with State educational mandates. The District shall aggressively publicize the desegregative student transfer option and shall facilitate student enrollment pursuant to this option. The District shall maintain records of all desegregative transfer requests including the race of the students and the reason for any denial of a transfer.

    31. The District shall carefully monitor transfers made under the bona fide child care exception of paragraph 28 above to ensure that such transfers do not adversely affect desegregation within the District. The District shall maintain records of all such transfers, including the sending school, receiving school, the race of the transferring student and documentation establishing the need for the transfer. The District shall include summary information on such transfers in its annual compliance reporting. If, at any time, the ''bona fide child care'' exception has a substantial adverse effect on desegregation in the District, the exception may be revised or eliminated.

VII. REPORTING REQUIREMENTS

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    32. The District shall propose detailed yearly reporting requirements to ensure compliance with the orders of the Court, including this Consent Decree, and federal law. The District shall submit the proposed provisions to the United States by October 1, 1997, for review and to the Court for approval by November 1, 1997.

    33. At the end of the 1997–98 school year, and at the end of each school year thereafter until the District is dismissed from court supervision, the District shall provide the United States the compliance information approved according to paragraph 32 above, as well as any other relevant information requested by the United States. The United States shall review the District's compliance with the mandates of this Consent Decree. If the United States believes that the District is not in full compliance it shall inform the District of its concerns in writing. The parties shall attempt to resolve any issues of non-compliance prior to submitting a dispute to the Court.

VII. CONTINUED JURISDICTION

    34. All provisions of prior orders of this Court not inconsistent with the provisions of this Decree shall remain in full force and effect, and no provision of this Consent Decree shall be interpreted to diminish the desegregation obligations of the District in any way. The Court retains jurisdiction to enforce all orders of this Court and to order all appropriate farther relief

    SO ORDERED, THIS 28th day of August, 1997.


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P. M. Duffy, United States District Judge.

    The following signatures of counsel to the parties indicate the parties' consent to the form and content of this order.

FOR THE PLAINTIFF:
Andrew Foose
United States Department of Justice
Room 7601, Main Justice Building
950 Pennsylvania Ave.
Washington, DC 20530
Phone: (202) 514-4092
Fax (202) 514-8337

FOR THE DEFENDANT:
Bruce Davis
Attorney, Georgetown County
School District
P.O. Box 10 16
Charleston, SC 29402
Phone: (803) 432–2880
Fax: (803) 577–0811

     


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U.S. Department of Justice,
Civil Rights Division,
Washington, DC, November 6, 1998.
BRUCE E. DAVIS, ESQ.,
Davis, Craver, Hagood & Kerr, P.A.,
Charleston, SC.

Re: United States v. Georgetown County School District (No. 69–43)

    DEAR MR. DAVIS: Thank you for your October 19, 1998 response to our request for information on the activities of the Pleasant Hill Area Charter Schools Committee. We understand that, on or before December 1, 1998, the Committee intends to apply to the Georgetown County School Board to convert Deep Creek Elementary School, Pleasant Hill Middle School and Pleasant Hill High School to charter schools, pursuant to the South Carolina Charter Schools Act of 1996 (S.C. Code §59–40–10 et seq.). Based on the information you have provided to date and for the reasons set forth below, the United States has concluded that the conversion of Pleasant High School to charter schools would constitute a clear violation of the August 28, 1997 Consent Decree and applicable federal law.

    As parties to the underlying case here, Wittenberg et al. v. Greenville County Sch. Dist., et al, 298 F. Supp. 794 (D.S.C. 1969), both the Georgetown County School District and the State of South Carolina have ongoing obligations to fashion student assignment plans that will ensure compliance with Constitutional standards for school desegregation. See Missouri v. Jenkins, 515 U.S. 70, 95 (1995); Keyes v. School Dist. No. 1, 413 U.S. 189, 196 (1973); Green v. County Sch. Bd, 391 U.S. 430–435 (1968). In Freeman v. Pitts, 503 U.S. 467, 485 (1992), the Supreme Court explained that the ''duty and responsibility of a school district once segregated by law is to take all steps necessary to eliminate the vestiges of the unconstitutional de jure system.'' Similarly, in Stanley and United States v. Darlington County Sch Dist, 879 F. Supp. 1341 (D.S.C. 1995), rev'd on other grounds, 84 F.3d 707 (4th Cir. 1996), the district court emphasized that ''a school district that violates the Constitution must remedy its violation by eliminating the pattern of racially identifiable schools.'' 879 F. Supp. at 1386 (italics added).
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    In the Consent Decree executed by the parties and approved by the U.S. District Court on August 28, 1997, the Georgetown County School District acknowledged its duties to alleviate the racial isolation of African-American Choppee students and to ensure that these students ''are afforded facilities, classes, programs, activities, services, resources and a quality educational experience fully comparable to that available at other District schools. To accomplish these goals, the District agreed that Choppee Middle School Choppee High School Pleasant Hill Middle School and Pleasant Hill High School would be consolidated and replaced by a new Carvers Bay Middle School and High School. The Consent Decree specifically states, in pertinent part that: ''The new Carvers Bay schools shall be open by the beginning of the 2001–2002 school year. . . . The attendance zone for the [new Carvers Bay schools] shall be the combination of the current Choppee and Pleasant Hill zones.'' United States v. Georgetown County Sch. Dist., No. 69–43, Consent Decree at 2 (D.S.C. Aug. 28, 1997) (italics added).

    In short, the Georgetown County School District's legal obligations are well established and the language of the Consent Decree is plain and unambiguous. We believe that in order to fulfill its Constitutional responsibility to eliminate the ''pattern of racially identifiable schools,'' see Darlington, 879 F. Supp. at 1386, the District must replace the middle and high schools in Choppee and Pleasant Hill with consolidated Carver Bay schools; disallow the conversion of the middle and high schools in Pleasant Hill to charter schools; and timely and fully implement the Consent Decree.(see footnote 76)

    We look forward to working with the Georgetown County School District and the State of South Carolina to ensure their full compliance with Federal desegregation standards and the implementation of all provisions contained in the Consent Decree. If you have any questions or comments, please do not hesitate to call us.
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Sincerely,

Thomas E. Perez, Deputy Assistant Attorney General,
Civil Rights Division.

By:
Kenneth D. Johnson,
Valerie L. Simons,
Trial Attorneys,
Educational Opportunities Section.

cc:

George C. Leventis, Esq.
State of South Carolina
Department of Education
402 Rutledge Building
1429 Senate Street
Columbia, South Carolina 2901–3730

Dr. D. P. Magann
Superintendent
Georgetown County School District
624 Front Street
Georgetown, South Carolina 29440
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(Footnote 1 return)
These grants range from $25,000 to $150,000 per year for a charter school, and from $600,000 to $12 million per year for states. The grants are available to help schools with costs associated with planning, operating or expanding a new charter school. The money can be used to purchase materials and supplies, hire staff, and provide high quality professional development for teachers.


(Footnote 2 return)
U.S. Dept. of Education, Office of Educational Research and Improvement, ''The State of Charter Schools: Third Year Report'' at 1 (1999) (''Third Year Report'')


(Footnote 3 return)
We are aware of schools in Arizona, Illinois, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Texas.


(Footnote 4 return)
Those districts were Lufkin, Texas; Oktibbeha County, Mississippi; and Georgetown County, South Carolina.


(Footnote 5 return)
Third Year Report at 2.


(Footnote 6 return)
States with number of covered districts: Alabama (100), Arkansas (16), Florida (16), Georgia (94), Louisiana (41), Mississippi (75), Missouri (25), North Carolina (9), South Carolina (24), Tennessee (17), Texas (42), Arizona (2), California (1), Connecticut (1), Illinois (4), Indiana (21), Louisiana (41), Kansas (1),New York (1), Utah (2), Virginia (4).


(Footnote 7 return)
Dayton v. Brinkman, 443 U.S. 526, 538 (1979).


(Footnote 8 return)
Third Year Report at 20.


(Footnote 9 return)
Third Year Report at 2.


(Footnote 10 return)
Third Year Report at 30.


(Footnote 11 return)
A school is considered a ''one-race'' school if 90 % or more of the student body is of the same race.


(Footnote 12 return)
17 La. Rev. Stat. §3991.


(Footnote 13 return)
See Jackson, 578 N.W.2d at 626.


(Footnote 14 return)
See Villanueva v. Carere, 873 F. Supp. 434, 448 (D. Colo. 1994) (explaining that Colorado has a legitimate state interest in encouraging innovation in education).


(Footnote 15 return)
See Sheff v. O'Neill, No. CV 890492119 S., 1999 WL 162993, at *6 (Conn. Sup. Ct. Mar. 3, 1999).


(Footnote 16 return)
See id. at *3 (concluding that the Connecticut State Legislature had complied with court orders to ''reduce racial, ethnic, and racial isolation'' by using programs such as charter schools).


(Footnote 17 return)
In re Grant of Charter School Application of Englewood on the Palisades Charter School, 727 A.2d 15, 42 (N.J. Super. Ct. App. Div. 1999).


(Footnote 18 return)
The states that have statutorily implemented charter school programs vary on the source of administrative accountability. Massachusetts and Minnesota place their charter schools under the control of autonomous boards. In Arizona, Michigan, New Jersey, Delaware, New Hampshire, North Carolina, Louisiana, and Texas, charter schools are either supervised by an independent school board or the local school district itself. In Alaska, Arkansas, Colorado, Georgia, Hawaii, Kansas, New Mexico, Rhode Island, South Carolina, Wisconsin, and Wyoming, charter schools must be under the control of the local school district. In Florida, charter schools are under the supervision of county education officials. See Jay P. Heubert, Schools Without Rules? Charter Schools, Federal Disability Law, and the Paradoxes of Regulation, 32 Harv. C.R.–C.L. L. Rev. 301, 313 n.53 (1997).


(Footnote 19 return)
See King v. United States, No. 97–B–341, 1999 WL 350636, at *3 (D. Colo. May 28, 1999) (finding that charter schools are public entities and are thus entitled to immunity from liability claims under Colorado law); Council of Orgs. & Others for Educ. About Parochiad v. Governor, 566 N.W.2d 557, 576–80 (Mich. 1997) (holding that the autonomous public school academies would be treated as public schools under the Michigan Charter Schools Act).


(Footnote 20 return)
See In re Grant of Charter School Application, 727 A.2d at 4243 (''As long as the Acts is otherwise free from federal or state constitutional defects, . . . the Act need not be evaluated by its compliance with other, traditional school laws which are not specifically applicable to these nascent institutions.'').


(Footnote 21 return)
No. 24950, 1999 WL 350584 (S.C. June 1, 1999).


(Footnote 22 return)
See S.C. Code Ann. §59–40–50(B)(1) (WESTLAW through 1998) (''A charter school shall: adhere to the same health, safety, civil rights, and disability rights requirements as are the public schools operating in the same school district.'').


(Footnote 23 return)
See Beaufort County Bd. of Educ., 1999 WL 350584, at *3.


(Footnote 24 return)
Id. at 4.The Supreme Court, despite denying the Committee's application, left open the opportunity for a re-application once the deficiencies in the original application were corrected. A question to be settled in future litigation was whether the Charter School Act's racial composition requirement, §59–40–50(B)(6), which prohibits a charter school applicant from differing from the racial composition of the school district by more than ten percent, violates equal protection. See id at 5.


(Footnote 25 return)
873 F. Supp. 434 (D. Colo. 1994), aff'd, 85 F.3d 481 (10th Cir. 1996).


(Footnote 26 return)
See Colo. Rev. Stat. §22–30.5–1 01 et seq. (WESTLAW through 1998).


(Footnote 27 return)
See Villanueva, 873 F. Supp. at 448.


(Footnote 28 return)
Id. at 446–47.


(Footnote 29 return)
See id. at 450–52.


(Footnote 30 return)
King v. United States, No. 97–B–341, 1999 WL 350636, at *4 (D. Colo. May 28, 1999).


(Footnote 31 return)
The Jackson court held that the NAACP—an intervenor in the case—failed to prove that the Wisconsin school choice program was enacted with discriminatory intent, thus eliminating its equal protection claim. See Jackson, 578 N.W.2d at 630–32.


(Footnote 32 return)
See Education Program Restructuring, Before the Subcomm. on Early Childhood, Youth, and Families, US. House of Representatives, printed in Federal Document Clearinghouse Testimony (May 29, 1999) (statement of Gary Huggins, Executive Director, Education Leaders Council).


(Footnote 33 return)
See, e.g., Alaska Stat. §14.03.255(b)(13) (LEXIS through 1999) (mandating that charter schools comply with all federal and state requirements for use of public money); Kan. Stat. Ann. §72–1906(d)(2), (4) (WESTLAW through 1998) (requiring also that the charter school student population ''reasonably reflect[ ]'' the racial distribution of the school district).


(Footnote 34 return)
See, e.g., Colo. Rev. Stat. §22–30.5–204(3) (LEXIS through 1998); Del. Code. Ann. tit. 14, §506(4) (LEXIS through 1998); Ga. Code Ann. §20–2–2065(a)(4) (WESTLAW through 1999); Fla. Stat. Ann. 228.056(8)(e) (WESTLAW through 1998); La. Rev. Stat. Ann. §17:3996(C) (LEXIS through 1999 Supp.); Nev. Rev. Stat. Ann. §386.550(1) (WESTLAW through 1997); N.H. Rev. Stat. Ann. §194–B:8(I) (WESTLAW through 1998); 105 Ill. Comp. Stat. 5/27A–4(a) (LEXIS through 1999); N.J. Stat. Ann. §18A:36A–11(a) (WESTLAW through 1998) (applying only to state civil rights regulations); R.I. Gen. Laws 16–77–2(b) (WESTLAW through 1998); Utah Code Ann. §53A–1a–507(3) (WESTLAW through 1998) (applying only to state and local civil rights laws); Va. Code Ann. §22.1–212.8(B)(6) (LEXIS through 1999).


(Footnote 35 return)
See, e.g, Cal. Educ. Code §235 (WESTLAW through 1998); D.C. Code. Ann. §31–2853.16(b) (WESTLAW through 1998); Mass. Gen. Laws Ann. ch. 71 §89(f)(10) (WESTLAW through 1999); Mo. Ann. Stat. §160.410(2) (WESTLAW through 1998); N.C. Gen. Stat. §115C–238.29F(f)(5) (LEXIS through 1998 Supp.); N.Y. Educ. Law §2854(2) (McKinney, WESTLAW through 1999); Wisc. Stat. Ann. §118.40 (4)(b)(2) (WESTLAW through 1999); Wyo. Stat. Ann. §21–3–203(d) (West, WESTLAW through 1999).


(Footnote 36 return)
See Ariz. Rev. Stat. §15–184(D) (WESTLAW though 1997) (prohibiting charter schools from accepting students whose admission would constitute a violation of a court desegregation order); Colo. Rev. Stat. §22–30.5–204(3) (subjecting charter school districts to ''any court-ordered desegregation plan in effect for the school district'' at the time of the charter approval); Del. Code. Ann. tit. 14, §506(5) (''A charter school shall not: [b]e formed to circumvent a court-ordered desegregation plan.''); 105 Ill. Comp. Stat. 5/27A–4(a) (stating that the General Assembly did ''not intend to alter or amend the provisions of any court-ordered desegregation plan'' as it applies to charter schools); Mich. Comp. Laws Ann. §380.504b (WESTLAW through 1997) (mandating that public school academies operated by a court-ordered school district will subject their pupil selection procedure to that order); Nev. Rev. Stat. Ann. §386.550(4) (''A charter school shall: [c]omply with any plan for desegregation ordered by a court that is in effect that is in the school district in which the charter school is located.''); N.C. Gen. Stat. §115C–238.29F(f)(5) (requiring charter schools to be ''subject to any court-ordered desegregation plan in effect for the local school administrative unit.''); Pa. Stat. Ann. tit. 24, §17–1730–A (West, WESTLAW through 1997) (denying the approval of charter school applications if such a charter school would ''place the school district in noncompliance with its desegregation order''); Va. Code Ann. §22.1–212.8(B)(6) (requiring lottery admissions procedures to remain compliant with ''any court-ordered desegregation plan in effect for the school division'').


(Footnote 37 return)
See Charter School Application Denied, Pitt. Post–Gazette, Feb. 12, 1998, at C3, available in 1998 WL 5232409.


(Footnote 38 return)
See Panel Discussion, Federalism and Judicial Mandates (pt. 3), 28 Ariz. St. L.J. 157, 208 (1996).


(Footnote 39 return)
Questions and Answers on the Application of Federal Civil Rights Law to Public Charter Schools (visited Aug. 8, 1999) <http://www.uscharterschools.org/res—dir/res—primary/ocr—q&a.htm#1>.


(Footnote 40 return)
See, e.g., Kevin S. Huffman, Note, Charter Schools, Equal Protection Litigation, and the New School Reform Movement, 73 N.Y.U. L. Rev. 1290, 1320 n. 199 (1998); Lee Sherman Caudell, Charter for Change, NW Educ. Magazine (1997), available at <http://www.nwrel.org/spring—97/article2.html>.


(Footnote 41 return)
David S. Tael, Desegregation Versus School Reform: Resolving the Conflict, 4 Stan. L & Pol'y Rev. 61, 65 (1993).


(Footnote 42 return)
See id.


(Footnote 43 return)
Constance Hawke, The ''Choice'' for Urban School Districts: Open Enrollment or Desegregation?, 115 Educ. L. Rep. 609, Apr. 1997, available in WESTLAW.


(Footnote 44 return)
Reinforcing this notion is the fact that ''[r]eform, rather than integration, is the overriding legislative purpose of charter schools.'' Robin D. Barnes, Black America and School Choice: Charting a New Course, 106 Yale. L.J. 2375, 2404 (1997). For a background discussion of the possibility of segregation in school choice programs, see generally Angela G. Smith, Public School Choice and Open Enrollment: Implications for Education, Desegregation, and Equity, 74 Neb. L. Rev. 255, 292–300 (1995).


(Footnote 45 return)
Many districts in Georgia and Alabama operate under general injunctions following the dismissal of the detailed regulatory injunctions and imposition of permanent injunctions by the courts in the 1970's. These permanent or general injunctions require the schools systems to act in an affirmatively nondiscriminatory manner in the operation of the school district, in the areas of student assignment, construction, i.e., Green factors.


(Footnote 46 return)
The argument that a charter school is the creation of a new public entity separate from the public school system may be the best argument supporting the necessity of court review and approval for charter schools when the desegregation order does not specifically state that modifications to a desegregation plan must receive court approval or the order does not describe a specific student assignment plan.


(Footnote 47 return)
As in interdistrict student transfer situations, an examination of the impact on sending schools as well as the charter school would be required, i.e., a school-by-school analysis. See, Eufaula at 233.


(Footnote 48 return)
This is a separate discussion from enrollment questions in non-court ordered districts which is the subject of current litigation in several school districts.


(Footnote 49 return)
There is reference in the federal legislation to charter schools that are schools-within-schools, 20 U.S.C.A. Sec. 8061 (a)(5), but I've not seen any reference to or description of this method.


(Footnote 50 return)
See Alaska Stat. §14.03.250 to 14.03.290 (Michie 1996 & Supp. 1997); Ariz. Rev. Stat. Ann §15–181 to 15–189.02 (West Supp. 1997); Ark. Code Ann. §6–10–116 (Michie Supp. 1997); Cal. Educ. Code §47600 to 47625 (West 1993 & Supp. 1998); Colo. Rev. Stat. Ann. §22–30.5–101 to 22–30.5–209 (West Supp. 1997); Conn. Gen. Stat. Ann. §10–145(f), 10–235 (West 1996 & Supp. 1998); Del. Code Ann. tit. 14, §501 to 516 (Supp. 1996); D.C. Code Ann. §31–1271 (1996); Fla. Stat. Arm. §228.056 (West Supp. 1998); Ga. Code Ann. §20–2–2060 to –2071 (Supp. 1998); Haw. Rev. Stat. Ann. §302A–1 123 (Michie Supp. 1997); 105 Ill. Comp. Stat. Ann. 5/27A–1 to –13 (West Supp. 1998); Kan. Stat. Ann. §72–1903 to –1910 (Supp. 1998); La. Rev. Stat. Ann. §17:3971 to 17:4001 (West Supp. 1998); Mass. Ann. Laws ch. 71, §89 (Law. Co-op. Supp. 1998); Mich. Comp. Laws Ann. §380.501 to 380.518 (West 1997); Minn. Stat. Ann. §120.064 (West Supp. 1998); Miss. Code Ann. §37–28–1 to –21 (Supp. 1997); Nev. Rev. Stat. Ann. §386.500 to 386.610 (Michie Supp. 1997); N.H. Rev. Stat. Ann. §194B:1 to :22 (Supp. 1996); N.J. Stat. Ann. §18A:36A–1 to –1 8 (West Supp. 1998); N.M. Stat. Ann. §22–8A–1 to –7 (Michie 1998); N.C. Gen. Stat. §11 5C–238.29A to .29J (1997); Ohio Rev. Code Ann. §3314.01 to.20 (Anderson Supp. 1997); Pa. Stat. Arm. tit. 24, §17–1701–A to 17–1732–A (West Supp. 1998); R.I. Gen. Laws §16–77–1 to –11 (1996); S.C. Code Ann. §59–40–10 to –190 (Law. Co-op. Supp. 1997); Tex. Educ. Code Ann. §12.001 to 12.1011 (West 1996 & Supp. 1998); Wis. Stat. Ann. §118.40 (West Supp. 1997); Wyo. Stat. Ann. §21–3–201 to –207 (Michie 1997 & Supp. 1998). So far this vear, three states have passed charter school legislation: Idaho, Utah, and Virginia. See The Center for Educational Reform, Charter School Highlights and Statistics (June 2, 1998) <http://edreform.com/pubs/chglance.htm>.


(Footnote 51 return)
According to the U.S. Department of Education, Office for Civil Rights, all charter schools are subject to federal civil rights laws. See Office for Civil Rights, U.S. Depart. Of Educ., Questions and Answers on the Application of Federal Civil Rights Laws to Public Charter Schools <http://www.uscharterschools.org/res_dir/res_primary/ocr_q&a.htm#1>. The Improving America's Schools Act provides that those charter schools receiving federal funds for design and implementation must comply with civil rights statutes. See 20 U.S.C. §8066(1)(1994). The Louisiana charter school statute provides: ''A charter school established and operated in accordance with the provisions of this Chapter [Charter School Demonstration Programs Law] shall comply with state and federal laws and regulations otherwise applicable to public school with respect to civil rights. . . .'' La. Rev. Stat. Ann. §17:3996(C).


(Footnote 52 return)
There was no distinction made between a charter school located in a state with an applicable desegregation statutory provision and one located in a state with no such provision.


(Footnote 53 return)
After May 31, 2001, only a local school board may enter into a charter. See La. Rev. Stat. Ann. §17: 3983(A)(5).


(Footnote 54 return)
It should be noted that experimentation by the State Board is not mentioned in this provision.


(Footnote 55 return)
The local school board should no Ion-er have the affirmative responsibility to ensure that the charter school complies with the desegregation order once it denies or places unacceptable conditions on the charter proposal.


(Footnote 56 return)
A ''Type 2'' charter school is a new school established pursuant to a charter between a nonprofit corporation created to operate the school and the State Board of Elementary and Secondary Education. See La. Rev. Stat. Ann. §17: 3973(A)(2)(ii).


(Footnote 57 return)
''A proposal for a type 3 charter school may be made to and considered by a local school board only. Denial by a local school board for a type 3 charter school proposal or unacceptable conditioning of such proposal terminates the chartering process.'' La. Rev. Stat. Ann. §17:3983(A)(2)(ii).


(Footnote 58 return)
The local district's approval of a charter school affects the source of funding. Where the local district approves the charter, the charter school receives the average current operating expenditure per pupil received by the local board, which is the minimum foundation formula and other revenue sources expended (local tax contribution) by the local board. La. R.S. 17:3995 A(l). Where the local district does not approve the charter and the state does, the charter receives an amount equal to the minimum foundation and from the state an amount equal to the local tax contribution. La. R.S. 17:3995 A(2)(a). In the latter case, the local district retains for itself the local tax contribution.


(Footnote 59 return)
This court was first apprized of the existence of such a contract when the School Board filed its motion on February 9, 1999. The issues involved in that motion all relate to the effect of the establishment of such a school upon the constitutionally required desegregation of the public school system.


(Footnote 60 return)
Movant's reliance on Donaldson v. United States, 400 U.S. 517 (1971) for the proposition that a non-party may intervene in a case, notwithstanding that its interests are already adequately represented by the existing parties, is misplaced. See 400 U.S. at 531 (denying intervention under Rule 24(a) to taxpayer in summons proceeding seeking business records from unrelated party).


(Footnote 61 return)
Nor does facilitating discovery require that movant be permitted to intervene. We presume that the Board, in approving the proposed charter school, evaluated its impact on the Board's ability to meet its desegregation obligations, and that the Board will provide that information to the plaintiffs upon appropriate request. Additionally, if necessary, movant will be subject to discovery under the federal rules governing non-party discovery.


(Footnote 62 return)
This court was first apprized of the existence of such a contract when the School Board filed its motion on February 9, 1999. The issues involved in that motion all relate to the effect of the establishment of such a school upon the constitutionally required desegregation of the public school system.


(Footnote 63 return)
The Board seeks approval for 12 schools, eight of which are racially identifiable. The Board has not sought approval to maintain spring semester enrollments at 17 additional schools where current enrollment exceeds the projections established in the consent decree. Twelve of these schools are racially identifiable.


(Footnote 64 return)
The consent decree defines a desegregated school as one with a racial composition within 15% of the system-wide student ratio at the grade levels served by that school. 8/1/96 Consent Decree at 7. As of October 1, 1998, the system-wide elementary and middle school enrollments were 69% and 68% black, respectively. Children's Charter School's 76 student enrollment in kindergarten through third grade is 91% black; J.K. Haynes Charter School's 77 student enrollment in pre-kindergarten through second grade is 97% black; and Community School for Apprenticeship Learning's 111 student enrollment in sixth through eighth grades is 57% black.


(Footnote 65 return)
The consent decree provides, and the Court has previously ordered, that ''no new school shall be constructed, nor shall any addition to an existing school be constructed, without approval of the Court.'' 8/1/96 Consent Decree at 6; Davis v. East Baton Rouge Parish Sch. Bd., 514 F. Supp. 869, 875 (M.D. La. 1981). Although one might argue that approving a charter school is not the same as constructing a school, the concern is the same: ensuring that the new school is not sited or operated in a manner that increases or reestablishes segregation. In order to protect this objective, the remedial provision requiring Court approval for school construction should equally apply to charter schools and, indeed, to any other type of school established or authorized by the Board. See Navarro-Ayala v. Hernandez-Colon, 951 F.2d 1325, 1337–38 (1st Cir. 1991) (''Unlike consent decrees entered into in commercial litigation, which are to be construed throughout like a contract, the interpretation of broad, programmatic decrees entered into in public law litigation will often warrant a more flexible approach.'') (citations omitted).


(Footnote 66 return)
Four predominantly white schools have lost one black student each to the charter schools: Cedarcrest Elementary School, Westminster Elementary School, Central Middle School and Southeast Middle School. Robbins Aff., Exhibits B & C.


(Footnote 67 return)
This potential problem is confirmed by the Community School's description of its recruiting activities, explaining that state statutory restrictions ''can inhibit our ability to control the composition of our student population.'' 7/16/99 Keegan Letter to Garrard. See also note 7, below.


(Footnote 68 return)
The Board has invoked this alleged lack of funds despite the consent decree's injunction, at 3, that ''the Court and the parties understand that adequate funding must be made available to ensure the success of this plan,'' and that ''the Court and the plaintiffs will not accept any excuse related to lack of funding.''


(Footnote 69 return)
For instance, the J.K. Haynes contract describes the per student funding to be provided to the school as amounts from the state and ''from any other revenue source dedicated to the East Baton Rouge Parish School System for its students.'' J.K. Haynes Charter School Contract at 5–6, attached as Exhibit A to 7/7/99 Affidavit of Don Mercer.


(Footnote 70 return)
The sending school information for an additional eight students is not provided. Thus, we do not know whether any of these students come from outside East Baton Rouge Parish or the racial composition of the sending schools for these students.


(Footnote 71 return)
The total enrollment limit for the three charter schools is 370 students.


(Footnote 72 return)
Any hardship to those students planning to attend the schools, if the Court denies the Board's motion, is solely attributable to the Board unilaterally approving the charter schools and delaying until mid-July to seek judicial approval.


(Footnote 73 return)
This evaluation shall include, but is clearly not limited to, a comparative evaluation of both certified and non-certified personnel at each school, the procedures for placement of personnel throughout the District, the staffing formulas and student-to-personnel ratios at each school, and the experience and quality of the personnel placed at each school.


(Footnote 74 return)
When making proposals pursuant to this paragraph, the schools' enrollments shall not be used as grounds to justify diminished depth or breadth of the educational opportunities offered to the students at these schools or to justify unfavorable disparities in educational opportunities provided at these schools in comparison to other schools in the District. Furthermore, the Evaluation Committee's recommendations shall not be limited by possible District resource constraints (although the District's ability to effectuate Committee proposals might be so limited).


(Footnote 75 return)
It is understood that non—certified staff are mostly custodial and food service personnel who live in the vicinity of the various schools. Because there is no public transportation system in the county. it may not be practicable to racially balance non-certified staff to the same degree as certified staff. Further, some schools have only one administrator.


(Footnote 76 return)
Recently, in Beaufort County Bd of Educ. v. Lighthouse Charter Sch. Comm. and the State of South Carolina, No. 97–CP–07–794, Order at 13–14 (S.C. Ct. Corn. Pleas Feb. 21, 1998) (enclosed), the Court of Common Pleas reversed the South Carolina Board of Education's decision approving the application of the Lighthouse Charter School Committee. The Court held that the Committee had failed to prove that the charter school could adhere to the Beaufort County Board of Education's voluntary compliance agreement with the U.S. Department of Education Office for Civil Rights.