Appeals Court protects MFP against Type 2 Charters

Today, the 1st Circuit Court of Appeals ruled in favor of the Louisiana Association of Educators (LAE) in its bid to protect the MFP formula from Type 2 Charter Schools. Click here to read the decision.

According to Louisiana Charter School Law, a non-profit that has formed with the intention of securing a charter to open a school must apply for a Type 1 charter with the local school board. If the local school board denies the application, the charter seeker can then apply to BESE for a Type 2 Charter. If BESE approves, the charter school falls under the jurisdiction of BESE. According to the Louisiana Charter School Association’s website, there are 42 Type 2 charter schools (actually 35).

In 2014, the legislature passed SCR-55 which essentially approved the MFP formula presented by BESE. The Minimum Foundation Program (MFP) is a complex formula used to determine “per pupil” allocations. The amount is based on the total number of public school students. The formula approved by SCR-55 includes charter school students.

The LAE challenged the formula as unconstitutional and sued the Department of Education. The trial courts found in favor of LDOE saying that the Constitution allows for the inclusion of “all” public students which includes charter school students.

The LAE wasted no time appealing, and the effort was worth the reward. With one judge dissenting, the 1st Circuit Court of Appeals ruled that while the language of the Constitution could be allowing for the inclusion of charter students in the formula, it clearly does not permit the distribution of MFP funds to Type 2 charter schools.

§13.  Funding; Apportionment

Section 13.(A)  Free School Books.  The legislature shall appropriate funds to supply free school books and other materials of instruction prescribed by the State Board of Elementary and Secondary Education to the children of this state at the elementary and secondary levels.

(B)  Minimum Foundation Program.  The State Board of Elementary and Secondary Education, or its successor, shall annually develop and adopt a formula which shall be used to determine the cost of a minimum foundation program of education in all public elementary and secondary schools as well as to equitably allocate the funds to parish and city school systems.  Such formula shall provide for a contribution by every city and parish school system.  Prior to approval of the formula by the legislature, the legislature may return the formula adopted by the board to the board and may recommend to the board an amended formula for consideration by the board and submission to the legislature for approval.  The legislature shall annually appropriate funds sufficient to fully fund the current cost to the state of such a program as determined by applying the approved formula in order to insure a minimum foundation of education in all public elementary and secondary schools.  Neither the governor nor the legislature may reduce such appropriation, except that the governor may reduce such appropriation using means provided in the act containing the appropriation provided that any such reduction is consented to in writing by two-thirds of the elected members of each house of the legislature.  The funds appropriated shall be equitably allocated to parish and city school systems according to the formula as adopted by the State Board of Elementary and Secondary Education, or its successor, and approved by the legislature prior to making the appropriation.  Whenever the legislature fails to approve the formula most recently adopted by the board, or its successor, the last formula adopted by the board, or its successor, and approved by the legislature shall be used for the determination of the cost of the minimum foundation program and for the allocation of funds appropriated.

In other words, you can include the charter school students in the calculation, but you can’t distribute the money to them. Approval of the formula contained in SCR-55 is not a power given to the legislature by the Constitution. In the simplest explanation, the Constitution does not tell the legislature can do, but instead what it can’t do. BESE can put whatever it desires in the formula. The legislature cannot approve distribution to schools that operate independent of a city or parish system. The Appellate also issued a permanent injunction prohibiting the use of MFP funds for new schools approved from this day, forward.

The decision will most likely be appealed to the Supreme Court by LDOE; however, the language seems pretty clear, and the ruling is sound. In my opinion, this opens the door for discussions about how, when and why charter schools can coexist with the public school system. This is a pathway to limited charter schools to local authorization with the MFP passing through the local system, as well as tighter controls over approving charters that actually meet the criteria set forth in charter law.

This is directly related to the petition I am currently circulating to ask Gov. Edwards to curb charter school expansion. If you haven’t already, please click the link to sign the petition.

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