Why there were dueling interpretations of pre-K language and charters

Today Learning Curve offers a housekeeping item that’s important but may be of limited appeal to many readers. Last week leaders at the Minnesota Department of Education (MDE) asked me and my MinnPost editors to issue a correction regarding the story “The other 196 pages of the vetoed education bill: How mixed is this bag?.”

We added the department’s objection to the story. We aren’t going to do a correction, but we’ll amplify the disputed point. To do so, we’ll spell out what we found in the reporting process in a level of technical detail that journalists usually boil down into simplified, reader-friendly statements.

The story asserted that Gov. Mark Dayton’s now-shelved proposal to create universal, school-based preschool would not have included charter schools. The MDE objected vehemently, saying in an e-mail, “There has never been an intent to exclude charters from the pre-K funding, and anyone who suggests that charter schools would not be eligible to receive pre-K funding is absolutely wrong.”

My original source, Charter School Partners Director of Public Affairs Brian Sweeney, who is a veteran of the legislative process and not given to spinning conspiracy theories, had been quite firm on the assertion over the course of two conversations. So I retraced my steps and then some, and found a difference of opinion that we at MinnPost concluded merited sharing with readers, who may evaluate the issue themselves.

After some back and forth, MDE sent us the text of the most recent version of Dayton’s pre-K proposal as well as a spreadsheet depicting “the runs” — rough budget estimates of how much funding individual district and charter schools would receive if the bill were enacted.

Here are the segments of the bill — technically a delete-all amendment to House File 844, for those of you following along at home — that MDE says clearly show that charters would be eligible for universal pre-K funding.

Sec. 3. [124D.171] PREKINDERGARTEN PROGRAM.

Subdivision 1. Programs authorized. A school district may offer a voluntary prekindergarten program for all four-year-old children. 

Sec. 5. Minnesota Statutes 2014, section 126C.05, subdivision 1, is amended to read:

Subdivision 1. Pupil unit.

(d) A prekindergarten pupil who is not included in paragraph (a) or (b) is counted as 1.0 pupil unit if the pupil is enrolled in a free all-day, every day prekindergarten program available to all prekindergarten pupils at the pupil’s school that meets the minimum hours requirement in section 120A.41 and meets the requirements in section 124D.171. 

MDE also sent two citations from existing law: 

                Minn. Stat. § 124D.10 Charter Schools

Subd. 8(f). The primary focus of a charter school must be to provide a comprehensive program of instruction for at least one grade or age group from five through 18 years of age. Instruction may be provided to people older than 18 years of age. A charter school may offer a free preschool or prekindergarten that meets high-quality early learning instructional program standards that are aligned with Minnesota’s early learning standards for children.

                Minn. Stat. § 124D.11 REVENUE FOR A CHARTER SCHOOL.

Subd. 1. General education revenue. General education revenue must be paid to a charter school as though it were a district.

Plain as day, right? Not in the eyes of the charter advocates. Because one of the original intents of chartering was to allow the schools flexibility from burdensome regulations, there has always and intentionally been some ambiguity in the laws governing charter operations.

Sometimes the traditional rights and duties of districts extend to charters, and sometimes they don’t. And because the process of sorting it out has over the years ended up in court on numerous occasions, there has traditionally been some accompanying friction between MDE and the charter community.

In 2009, at the behest of charter advocates, MDE and the Legislature enacted some clarity:

Subd. 7. Public status; exemption from statutes and rules. A charter school is a public school and is part of the state’s system of public education. A charter school is exempt from all statutes and rules applicable to a school, school board, or school district unless a statute or rule is made specifically applicable to a charter school or is included in this section.

In short, if a law or a state rule applies to charter schools, that must be spelled out specifically.

None of the universal pre-K programs — the original bills that preceded the delete-all amendment were Senate File 6 and House File 46 — included this specific language.

But what about the runs, the legislative veterans in the room are asking at this point. Doesn’t the fact that MDE did the runs suggest their intent was to fund preschool in charters?

That might be their intent, is the advocates’ response, but it’s not what the bills say. Nor do they agree that universal pre-K in charters was established by the funding portion of the bill.

There are three reasons for this. The first is that the statute referred to at the top of the governor’s amendment — Sec. 3. [124D.171] PREKINDERGARTEN PROGRAM. — would place the provision in a section of the law that authorizes schools to run a host of programs that charters are specifically not authorized to operate, according to Cindy Lavorato, an attorney who has represented charters in conflicts with MDE.

An example of the offerings in 124D.171, she added, is the parent-and-child Early Childhood Family Education program.

Second, the definition of the term “district” in the statute is “school district” and does not specifically include “charter school.”

Third, Lavorato represented Minnesota Transitions Charter School in a case that made its way in March 2014 to the state Court of Appeals, which ruled against the school. The issue was whether MDE had an obligation to continue funding an alternative learning center operated by the charter.

The program began operating with provisional MDE authorization for one year in 2002. In 2013, in connection with a review of a separate issue, MDE told the school it was not permitted to run the alternative program and funding would cease.

In its written legal argument, the department was very clear on the point:

“The legislature has distinguished school districts from charter schools, and when it wants charter schools to be treated like school districts, it says so,” MDE’s brief said.

Nor did it matter that MDE had funded the program for more than a decade, the agency argued:

“The commissioner is not prohibited from revisiting prior decisions. She may alter her position, if the circumstances warrant, so long as she provides a reasoned explanation for her decision. … Whatever provisional approval might have been granted to petitioner in 2002, the commissioner reasonably determined that, in light of current circumstances, the legislature does not intend charter schools to operate alternative learning programs.”

“The correct reading,” the court ruled, “is that they authorize charter schools to receive funding as though they were district schools when specific statutory authorization otherwise exists for a charter school to operate a certain program.”

The opinion cited the 2009 clarification of the statute requiring charters to be specifically included if a provision is to pertain to them.

Indeed, the affirmation of the statute has triggered a number of conversations in education circles as past policies are revisited to determine whether they pertain to charters.

So where does this leave us? Dayton has backed off universal pre-K this year, so we can’t tell you how it would have played out. 

The governor has vowed to make the proposal again in future sessions, however. And when it comes back up, it will doubtless be a hot potato. There is an aspect of universal pre-K that has long-term implications for what school leaders are now referring to as “market share.” Children often stay where they enter the school system, and a free program for 4-year-olds is attractive to families.

Without clearer language the charter community would be vulnerable to the state’s interpretation of any resulting statute. Though the current MDE’s interpretation has been stated, what if a future MDE changed its mind?

Back to Sweeney, who did not offer an opinion on universal pre-K pro or con, but did have some concerns with staffing requirements and other parts of the bill that, specificity aside, would make it very difficult for charters to operate the programs.

“At the very least if they intended to include charters in universal pre-K they did an insufficient job crafting the language,” Sweeney said when I circled back to him. “It raises the question, why wasn’t language included in the legislation? Why was no one from the charter community consulted? There was no reference to charter schools in any of the language.”