Appeal brings more wrangling over high-performing Florida charter schools

A Florida school district today lost one round in a multi-faceted legal showdown with a major charter school operator, but it’s safe to say the fight is just beginning.

The Florida Board of Education ruled the Polk Charter Academy should be allowed to open a new school.

The Polk County School Board had rejected the charter application last fall, arguing, among other things, that it would not “substantially replicate” Winthrop Charter Academy, a high-performing charter school in neighboring Hillsborough County.

A 2011 law allows charter schools to gain “high-performing” status if they maintain clean financial records and earn top marks in the state’s A-F grading system. A 2013 law makes it easier for those schools to expand. If a school board rejects one of their applications to “replicate” in a new location, they can bypass the state charter school appeals commission and take their case directly to the state board. That’s what happened with Polk Charter Academy.

The Polk school district contends the Florida Charter Educational Foundation, the nonprofit governing board that applied to open Polk Charter Academy, could not possibly replicate Winthrop Charter Academy because that school is overseen by a separate entity known as the Bay Area Charter Foundation.

If the Polk charter does not replicate a high-performing charter, it would have to go before the state appeals commission, and would face a longer legal slog to overturn the school board’s rejection.

When the state board heard the appeal today, Wes Bridges, an attorney for the Polk school district, said “we wouldn’t be here” if the Bay Area charter group had been the one to submit the charter application.

But Stephanie Alexander, an attorney for the charter school, said that was a “spurious” reason to reject the charter application. The two nonprofit boards have the same members, and this, she said, is what state law requires:

An applicant is considered to be replicating a high-performing charter school if the proposed school is substantially similar to at least one of the applicant’s high-performing charter schools and the organization or individuals involved in the establishment and operation of the proposed school are significantly involved in the operation of replicated schools.

The Polk charter school’s application goes beyond those requirements, she argued. “Not just some of the same board members are involved,” she said. “They all are.”

The state board backed her position. The district can appeal that decision in court, but in the meantime, it has filed a legal challenge with the state Division of Administrative Hearings.

It argues that by treating the charter application as a high-performing charter school replication, the Department of Education has “exceeded its grant of legislative power, deprived the School Board of its statutory procedural rights, and acted in an arbitrary and capricious manner.”

The department has responded that “Polk is wrong” in its reading of Florida statutes, and the charter school foundation has jumped into the fray on the department’s side. An administrative law judge is expected to hold a telephone hearing in the case tomorrow.

School districts — including Polk, in a previous case — have gone to court against Charter Schools USA-affiliated nonprofits after the 2013 law shifted high-performing charter school appeals to the state board. Those cases wrestled, in one form or another, with what it means to truly replicate a high-performing charter school.

Meanwhile, nonprofits affiliated with the management company are locked in a multi-faceted legal battle in another part of the state, where the Palm Beach County school district has insisted the schools are not “innovative.”

While the legal issues in those cases are far different, the battles are, in essence, similar. School boards are asserting their authority to close the door on new charter schools, while charters are fighting to pry it open.