Michigan Charter Schools Sue US Department of Education Over New Rule

Michigan Charter Schools Sue US Department of Education Over New Rule
Pacific Legal Foundation attorney Caleb Kruckenberg (courtesy Pacific Legal Foundation)
Matthew Vadum

An organization representing Michigan charter schools is suing the U.S. Department of Education over a new rule that its lawyers say will undermine charter schools.

The Biden administration, which is closely aligned with public school teachers unions, is hostile to charter schools. On the campaign trail in 2020, then-candidate Joe Biden said he’s “not a fan of charter schools.”

The legal complaint (pdf) in the case, Michigan Association of Public School Academies (MAPSA) v. U.S. Department of Education, court file 1:22-cv-00712, was filed on Aug. 8 with the U.S. District Court for the Western District of Michigan. The Thomas B. Fordham Institute is also listed as a plaintiff.

Despite Biden’s disapproval of charter schools, the administration can’t ignore the wishes of Congress, which favors charter schools and has voted to send grants their way, Caleb Kruckenberg, of national nonprofit public interest law firm the Pacific Legal Foundation, told The Epoch Times.

Congress allots hundreds of millions of dollars each year for charter school programs nationwide. Specifically, on March 10, Congress appropriated $440 million for the federal charter school program for 2023. The program was signed into law in 1994 by President Bill Clinton.

Federal law requires the Department of Education to dispense federal grants to charter management organizations and state entities in order to “increase the number of high-quality charter schools available to students across the United States,” Kruckenberg wrote in an April 11 letter (pdf) to the department.

“It cannot refuse because it disfavors giving parents and students choice in which school to attend.”

But the Department of Education is undermining the law with a new administrative rule that was published in the Federal Register on July 6. The rule establishes new criteria for grants that are designed to hurt charter school programs and protect failing public schools from innovative alternatives. The department doesn’t have the authority to issue new criteria, and the person who issued it lacks the legal authority to do so, the complaint states.

There are “three very problematic parts of it,” Kruckenberg told The Epoch Times.

“One of the new requirements of the rule is that an applicant has to demonstrate that a new charter school is needed. But the way they’re supposed to do that is they have to show that the existing public schools are overcrowded,” he said.

At the same time, the applicant has to show that “the existing public school will cooperate with a new charter school.”

“The problem is, that’s not how charter schools work. They work as an alternative to schools that aren’t doing what they’re supposed to,” Kruckenberg said.

“And a lot of times, if you look at the best schools, it’s school districts where there’s lots of space, but it’s because the schools are failing—they’re not doing what they should. And there’s a lot of resistance from local school districts. And so these criteria can be used to disadvantage, for example, schools that operate in urban areas.”

There’s also “a really problematic racial balancing component to the new rule,” he said.

Under the new rule, “the new charter school project can’t racially isolate or segregate students either in the charter school or in the public schools that they’re getting their students from,” according to Kruckenberg.

The problem is that the department “defines racial isolation as there’s too many students of one ethnic group.”

“So you can think of certain charter schools that serve predominantly inner-city areas, and you can see how they get in trouble,” he said. “Some of our clients, for instance, they have student bodies that are made up of, say, 90 or 95 percent African American students.”

And according to the department, “that means they’re racially isolated students,” Kruckenberg said.

Nina Rees, president of the National Alliance for Public Charter Schools, told trade publication Chalkbeat in June that the new rule would protect government schools while hurting charter schools.

“The underlying premise of this argument is that it is more acceptable to provide a substandard education and remain open, as is the case for too many low-performing district schools,” she said.

The Epoch Times reached out to the Department of Education for comment. Although press officer Julie Ewart said by email that the department was working on a response, no comment had been received by press time.