The demise of a charter school, burden of proof, and a quorum

Welcome again Mark Fitzgerald as guest blogger.  This time, he writes about the process of revoking a charter school's charter.  In the case involved the charter school could not overcome declining student performance on the state's accepted measure of annual yearly progress.  The case also presents discussion about the burden of proof (placed on the charter school) and, for anyone running a meeting, a ruling about what constitutes a common law quorum.  Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.  Kudos!

The tumultuous five years of the Ronald H. Brown Charter School appears to be over. Earlier this Summer, the Pennsylvania Commonwealth Court in Ronald H. Brown Charter School v. Harrisburg City School District, upheld an order of the State Charter School Appeals Board which had earlier determined evidence was sufficient to support the local school board’s non-renewal of the charter. The Charter School had failed to meet statutory requirements as it related to accepted standards of fiscal management or audit requirements, as well as failed to demonstrate improvement in student academic performance.

In determining substantial evidence supported the Appeal Board’s denial on both the fiscal prong of the statute as well as the academic improvement prong, the court concluded the Charter School had the burden of proof to demonstrate children had in fact made improvements during the time period of the charter. The Charter School vigorously argued that it was not its burden to establish that the students had obtained higher standardized test scores and steady improvement in the quality of performance-based assessments, but rather it was the School District's burden to defend the local school boards determination for non-renewal.

While the Court conceded that the Charter School Law merely provides that local school boards may choose to revoke or not renew a charter at a public meeting based on a school's failure to meet the requirements for student performance, the law says nothing about whose burden it is going forward. In a footnote the court noted, “we advise the school that if a school submits an application to renew its charter, it is the school's burden of going forward to prove that it is entitled to have its charter renewed, including proving that its students obtained higher standardized test scores and they improved in the quality of performance-based assessments. It is not the responsibility of the school district because the school district is not the entity seeking the renewal.”

In defending its determination to not renew the charter, the School District directed the court to years of declining standardized PSSA test scores where 5th and 8th grade math and reading scores declined substantially. The Charter School argued the PSSA tests were culturally biased and the School District did not consider other assessment tools that demonstrated progress. The court concluded the school district and Appeal Board did not have to rely on other assessment measures and could simply rely on the PSSA test,  which is“the uniform test used statewide to measure performance.”

Interestingly, it now appears fairly clear, on an appeal to the Appeal Board, or Commonwealth Court, the Charter School, or in the case of an initial application, the Applicant, will have the burden to prove substantial evidence to overturn the local school district's decision. Who has the burden when a school district decides to revoke a charter before the renewal period, however, is a question that remains unanswered by the Commonwealth Court.

A related issue addressed by the decision dealt with what constituted a quorum under the Charter School Law.  In this matter, on October 14, 2005, the Charter School appealed to the Appeal Board, which is typically comprised of seven members. However, while the appeal was pending before the Appeal Board, there were two vacancies leaving only five Appeal Board members.

On May 23, 2006, during the appeal proceedings, only four of the then-current five Appeal Board members were present, but one of those members had to recuse from the appeal, leaving only three members of the Appeal Board to vote on the Charter School's appeal. Those three remaining members voted unanimously to affirm the school district’s revocation of the charter.

The Charter School argued the three members of the seven member Appeal Board who participated in the vote and voted unanimously to affirm the local school board’s decision did not constitute a quorum under the Charter School Law.

The court concluded common law quorum rules applied to the Appeal Board so that a majority was determined by number of Appeal Board members currently serving, not the total number of appointments that could be made to the Appeal Board. While the appeal was pending before the Appeal Board, there were two vacancies leaving only five actual Appeal Board members. Therefore, under common law quorum rules, the three remaining members still constituted a quorum.