STATEMENT OF

ANITA HODGKISS

DEPUTY ASSISTANT ATTORNEY GENERAL

CIVIL RIGHTS DIVISION

UNITED STATES DEPARTMENT OF JUSTICE

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

COMMITTEE ON THE JUDICIARY

HOUSE OF REPRESENTATIVES

CONCERNING

CIVIL RIGHTS DIVISION ACTIONS

WITH RESPECT TO CHARTER SCHOOLS

PRESENTED ON

OCTOBER 14, 1999

Mr. Chairman and Members of the Committee:

Thank you for inviting me to appear before you today to discuss how charter schools relate to the Civil Rights Division's responsibility to ensure that school districts comply with the federal civil rights laws and any court orders entered pursuant to those laws.

Forty-five years ago, in Brown v. Board of Education, the Supreme Court of the United States reaffirmed the importance of education in the development of our young people and established that no person could be denied equal access to education because of the color of his or her skin. It was a decision that continues to make a real difference in the lives of many, many young people.

Today, it is time to address and remove the last vestiges of racial discrimination in education. Since the decision in Brown, there has been a wealth of new evidence confirming the important role that schools play in preparing students to live in a pluralistic society and the significant role that the diversity of a school environment plays in the healthy development of children. It is our schools that must reaffirm -- both by lesson and by example--the moral correctness of equality and the value of a quality learning experience. We cannot afford to allow intolerance or inequity to interfere with the ability of any citizen to acquire the most critical commodity -- a quality education.

President Clinton and this Administration have championed the development of charter schools as part of a strategy to provide all children with the opportunity for a high-quality education. Charter schools begin with a vision shared by educators, parents, and community leaders who want to create a new and different learning environment for their children, and are a promising model for generating improvements in public education generally. Through the charter school program under Part C of Title X of the Elementary and Secondary Education Act of 1965, 20 U.S.C. §§ 8061-8067, the Department of Education has granted some $253 million to over 1,200 charter schools since 1995.⁽¹⁾ These 1,200 schools are part of the 1,700 charter schools that were operating as of September 1998 to educate approximately 350,000 students.⁽²⁾

While the Department of Education has the most direct role in developing and implementing federal programs to promote charter schools, the Civil Rights Division shares the conviction that charter schools can provide an exciting and effective learning environment for students and teachers. The Division also believes that it is necessary and possible to develop charter schools that are consistent with this nation's civil rights laws, including any outstanding court orders that may govern a school district's operations. These orders, which are enforceable decrees of federal courts, were entered to ensure the elimination of any vestige of segregation or discrimination in a school district that had violated the constitutional guarantee of equal protection and the right to equal educational opportunity.

Where the United States is a party to a case in which the court issued such an order, it is our responsibility to ensure that any modification to a student assignment plan, including the establishment of a new public school, is consistent with that order. Moreover, where the court has required submission of such changes for approval, it is common practice for the court to ask us for our views before issuing its ruling. We carry out this responsibility for any new public school and any modification of attendance zones in a covered district that is brought to our attention, whether the new school is a charter school, a magnet school, or a traditional school. Accordingly, when we are notified that a charter school has been proposed in a covered district, and when the applicable order covers the opening of a new school or the resulting changes in attendance plans, we gather the information needed to determine whether the new school will impede the achievement of the order. School districts share the obligation to evaluate whether a new school will impede the order, and, in addition, have a duty to ensure that their actions will not resegregate their school systems.

In the majority of such cases involving charter schools, the Division is able to obtain the necessary information from the district and the charter school organizers, conclude that the school is consistent with the applicable decree, and accordingly raises no objection to the school. As of 1999, we are aware of approximately 50 charter schools operating in approximately 30 districts where the Division is a party to a pending case.⁽³⁾ We have reason to believe the actual number could be higher. We have requested information about some of these charter schools. Based on our review, we have supported the motion of the East Baton Rouge Parish school district to expand two existing charter schools, and have not objected to the operation of any of the other schools. On just three occasions, we have notified a school district that we would not be able to support a proposed charter school.⁽⁴⁾ This is comparable to our experience with other new schools, schools that are not charter schools, in covered districts.

In most cases, charter schools do not have serious implications for desegregation decrees. Generally, charter schools are relatively small. Their limited enrollment will not have significant impact on the attendance patterns and enrollment in the district's other schools, and will not affect compliance with the decree. In addition, charter schools generally serve students with demographic characteristics similar to those of the students in other public schools.⁽⁵⁾

The Department understands the unique nature of charter schools and the challenges faced by those working to start these schools from scratch. The obstacles confronting developers of a newly created school are akin to those facing a new small business. They need start-up funds, operating funds, facilities, and planning assistance. Unlike a new, district-operated public school, charter schools are often organized by individuals outside of the established school administration -- parents, teachers, small business owners, concerned community members. They may be unfamiliar with the requirements, and perhaps even the existence, of laws and regulations governing their operation, including court orders and decrees that cover the district. Further, differences between states as to which agencies and institutions have authority to grant charters may further confuse the question of whether opening a particular school requires court approval.

To address these challenges, the Civil Rights Division has been working with the Department of Education to develop a process through which the state chartering authorities are made aware of potentially applicable court decrees and are in a position to assist affected charter schools. We are committed to continuing these efforts, and welcome any suggestions that will allow us to work with charter school organizers to expand the number of charter schools operating consistently with our federal civil rights laws.

I. The Educational Mission of the Civil Rights Division in Ending Segregation

The seminal case of Brown v. Board of Education and its progeny had two objectives: ending the legal structure of racial segregation, whose design and purpose were the creation and maintenance of a racial caste system that relegated African Americans to the lowest tier of society; and enabling African Americans to gain access to quality education, which is the key to overcoming the barriers imposed by racial segregation and attaining the full enjoyment of the benefits of citizenship.

When many southern states refused to comply with the Supreme Court's mandate to desegregate "with all deliberate speed," it became necessary to sue individual districts in the courts to obtain relief. When Congress enacted the Civil Rights Act of 1964, 98% of black children in the South were still attending segregated schools. The Department's initial enforcement efforts led to federal court orders requiring desegregation remedies in over 500 school districts. Private litigants obtained court-ordered remedies in many other districts where the United States was not a party.

The Civil Rights Division continues to work to eliminate the vestiges of discrimination and segregation that remain in our educational system, and to provide access to equal educational opportunities for all students. Today, we live in a society where the school-age population is increasingly diverse. Latino and Asian students, who received relatively little attention in the 1950's and 1960's, make up an increasingly significant proportion of our population and an even larger percentage of our school enrollment. By 1996, Hispanic students made up 14% of students in the South and the nation as a whole. Asian students are nearly 4% of the nation's enrollment, and will soon be close to 10%.

The Civil Rights Division currently is a party to pending cases in 497 school districts in 21 states.⁽⁶⁾ Seventeen of the 21 states in which we have pending orders have authorized the creation of charter schools: Arkansas, Arizona, California, Connecticut, Florida, Georgia, Illinois, Kansas, Louisiana, Mississippi, Missouri, New York, North Carolina, South Carolina, Texas, Utah, and Virginia.

Since virtually all of these pending orders define the school district's student assignment plan, changes to a district's attendance plan, including the construction of new public schools, that affect assignment patterns require court approval. As a party to these cases, when we are notified of a new school, new construction, or other change in an attendance plan that is covered by the order, it is our responsibility to determine whether the proposed modification is consistent with the requirements of the order and, if asked, to advise the court of our views. The court, of course, makes the final decision on compliance. This responsibility applies to all covered construction and modification of which we are notified, whether the modification involves a traditional public school under the direct supervisory authority of the district or whether it is a charter school. The local school district, which has an affirmative obligation not to take any action that would impede desegregation,⁽⁷⁾ shares this responsibility.

Of course, the fact that a school operates pursuant to a desegregation order does not mean that the school system can not make changes in its operations or educational programs. To deny school districts the ability to modify the organization of their schools in the face of changing demographics or aging facilities, or to adopt new educational programs, would be counterproductive to sound educational practices.

Reviews of modifications to a court order and questions of compliance with desegregation orders are necessarily fact-specific. We encourage school districts and the developers of charter schools to consult with us as soon as possible so that they are aware of any applicable court orders. Over the last several years, we have agreed to new school construction in a host of districts, including Lufkin and Temple in Texas; Gibson, Tennessee; Vicksburg, Mississippi; Tuscaloosa, Autauga and Auburn, Alabama; and Baton Rouge, Louisiana. In Tuscaloosa, we objected to the district's original construction plan, and were able to reach an agreement that was approved by the court. In a few other instances, such as Madison County, Mississippi, we objected to new school construction.

II. Our Mission Includes Encouraging Charter Schools that are Consistent with Federal Civil Rights Laws

As a general matter, the establishment of new charter schools can be readily accomplished in compliance with federal civil rights laws. For example, most charter schools, especially newly created schools, have relatively small enrollments and are thus unlikely to significantly affect the operation and desegregation of a school district. Sixty-five percent of all charter schools were small schools enrolling fewer than 200 students, and 74% of newly created charter schools were of this size.⁽⁸⁾

In addition, the majority of charter schools have enrollments with demographic characteristics similar to those of the surrounding district.⁽⁹⁾ On the whole, charter schools have enrolled a slightly larger percentage of students of color than all public schools.⁽¹⁰⁾

For example, in Georgetown County, South Carolina, the Harbor School for Arts and Science charter school is currently operating with an enrollment of approximately 137 students. Half of the students are black, and half are white. Given the size and demographics of the student body, we concluded that the school would not have a detrimental impact on the district's compliance with the court's decree, and we have raised no objection to the school's operation. In contrast, on a previous occasion when this same district was asked to approve the opening of three charter schools in the very buildings that, as part of the decree, had been closed and merged in to new consolidated schools in order to further desegregation, we notified the district that we would oppose the charters because they would have clearly impeded desegregation under the decree. Ultimately, before the court had occasion to rule on the question, the voters of Georgetown County rejected the proposal.

Similarly, in Monroe, Louisiana, the local school board asked the court to evaluate whether the operation of a charter school would adversely impact the desegregation of the city system before it approved the charter. The court granted a continuance for the hearing on the charter, and allowed the school to open in the interim. The Division facilitated a tentative agreement between the charter school and the school district, and the charter school remains open.

III. Louisiana

The Committee has expressed a particular interest in our involvement with charter schools located in East Baton Rouge and St. Helena Parishes. Because the decree in East Baton Rouge Parish is somewhat unique, it will be helpful to describe in some detail what the decree requires and how the proposed United Charter School may affect that district's ability to comply with the decree.

East Baton Rouge Parish is a large school district which currently enrolls approximately 56,000 students, of whom approximately 67% are black. The system runs 97 schools of which at least 50 are considered "one-race"⁽¹¹⁾ schools.

The case was initially filed in 1956 by private plaintiffs. The United States intervened in the suit in 1979. In 1980, the Court granted the United States' motion on liability, and thereafter entered remedial orders for the elementary, middle, and high schools. Three system-wide magnet schools were approved.

The order did not achieve full desegregation. However, when a court finds unlawful segregation, one permissible remedy among others to correct for the discrimination is to order that money be spent on programs, facilities, and resources in segregated schools. In 1996, the parties entered into a consent decree that permitted the district to implement a new plan devised by the board to create at least 26 magnet program schools and to rezone all schools other than the magnet schools. The district also agreed to enhance many of the one-race schools in part to attract a more integrated student body. The 1996 Consent Decree also prohibits the board from opening new schools without prior court approval.

The district has not complied with the decree, in part, it claims, because it does not have sufficient funds. For instance, the district initially did not adequately wire two one-race schools to accommodate their computer magnet focus and did not provide appropriate facility and program enhancements at 30 one-race schools. Nor has the district eliminated a large number of temporary classrooms at one-race schools which were slated for removal in the consent decree. This is a particular concern in light of the court's determination in its 1980 opinion that temporary classrooms had been used to increase the size and enrollment of segregated schools.

A. Existing Charter Schools in East Baton Rouge Parish

Louisiana's charter school statute specifies that a charter school shall "be subject to any court-ordered desegregation plan in effect for the city or public school system."⁽¹²⁾ The school board opened the three existing charter schools -- Children's Charter, J.K. Haynes Elementary, and the Community School for Apprenticeship Learning -- without either informing the plaintiff parties or obtaining the required court approval.

The existing charter schools enroll a predominantly black student body. Based on statistics from the 1998-1999 school year, Children's Charter had 76 students in pre-Kindergarten through 2^nd grade of whom 91% were black. J.K. Haynes Elementary, which was established in 1997, is ultimately projected to enroll 140 students in grades K-6. In 1998, Haynes enrolled 77 students in K-3, 97% of whom were black. The Community School for Apprenticeship Learning served 111 students in grades 6-8, 57% of whom were black.

In July of 1999, the board sought the court's approval for the proposed expansion of Children's Charter and Haynes Elementary to accommodate new fourth and fifth grade classes. The private plaintiffs opposed the board's motion. After receiving the necessary information, the Department supported the proposed two grade expansion of these two schools. Our information requests were tailored to address our concerns about the effect that proposed expansion of these schools would have on compliance with the decree.

The board has previously invoked a lack of funds as an impediment to fully implementing the consent decree, particularly with respect to the extensive magnet programs that it agreed to undertake in 1996. Each student attending a charter school reduces the regular amount of operational funding available to the system by approximately $4,700. Accordingly, operating the three existing charter schools at their full capacity under current caps -- 370 students -- could result in an annual loss to the system of approximately $1.7 million. Given the Board's assertions regarding its financial constraints, we believe it was fair to question the Board's decision to approve the expansion of three schools that could result in a diversion of almost $2 million from the system before offering our support for the expansion. We have also asked administrators at the two schools that are racially identifiable to refrain from making admissions that would negatively affect the level of integration of the school district that has been achieved so far.

The Court ruled in August of 1999 that the existing schools, as presently constituted, were small enough not to present a financial impediment to the implementation of the consent decree and approved a one grade expansion at each school. The Court declined, however, to approve additional expansion, and directed that any further requests for expansion be submitted for approval.

B. Proposed United Charter School

In February of 1998, we were informed that the district had approved an application for the establishment of the United Charter School. The school would enroll 650 students in its first year, and ultimately serve 1,200 students in grades K-12. It is thus several times larger than the existing schools and than most charter schools. In its first year of operation, the school could receive $3.5 million of funds that would otherwise go to the East Baton Rouge district. At capacity, the United Charter School could result in a loss of $5.6 million for the school district, which, with the three existing schools, could amount to a total loss of approximately $7 million.

We reminded the board that court approval would be required. We also met with administrators of the proposed charter school and requested information, not all of which has been provided. In February 1999, the board filed a motion with the court requesting approval of United Charter. However, at the same time, the board asked that the court not take any action on its motion. The charter school group also sought to intervene, and, in accordance with longstanding jurisprudence in the Fifth Circuit, we opposed that request on the grounds that its interests were adequately represented by the school board. On March 24, the Court denied the charter school's request. The court has not issued a schedule for consideration of the board's motion.

C. St. Helena Parish

St. Helena is a small district with approximately 1,200 students, of whom 91% are black. When the desegregation plan for the parish was implemented, a majority of the white students in the parish left the public schools to attend a private school in a nearby parish. Today, most of the white students residing in the parish continue to attend private schools.

We have been informed by a school official that the private school is experiencing financial difficulties and has notified parents of a tuition increase. The official believes that the white parents are seeking an alternative to the private school, but do not want to enroll their children in the predominantly African-American St. Helena Parish system. The proposed charter school is located in the neighborhood where the white students who left the district to attend private schools live. It is a rural area, and there is no plan to provide transportation for students attending the charter school. We are thus concerned that the charter school may have an overwhelmingly white enrollment and recreate a situation with identifiable white and African-American schools in the parish. When the State Board over-ruled the local board and authorized the establishment of the school, we asked for additional information and suggested that the Board reevaluate its position in light of the possible effects that the charter school would have on desegregation in the parish. The State Board did not act on our request. To our knowledge, the school has not opened and neither the State nor the district have sought court approval.

Conclusion

The Department of Justice, along with the Department of Education, strongly supports the creation of charter schools to meet increasing enrollment demands and to foster public school choice. We also believe strongly in the guarantee of school desegregation embodied in the Constitution and the civil rights laws enacted by Congress. There is no inherent tension between the creation of charter schools and desegregation obligations. Most charter schools opening in areas under court-ordered desegregation plans should be able to comply with those orders.

We stand ready to aid states, chartering authorities, local educational agencies, and community members who are considering charter schools, as well as other new schools. Part of that assistance includes help with identifying applicable civil rights obligations and ensuring compliance. Working in close conjunction with the Department of Education, we hope to publish a technical assistance document for state school officials, local education authorities and charter school operators that will outline basic steps a developing charter school can take to make sure that it is in compliance with any desegregation order or plan in effect for that district. Our initial draft of this document contains questions and answers for persons planning public charter schools. It covers all federal civil rights obligations, including desegregation, sex discrimination, disability and students with limited English proficiency. Devising such guidance is complicated by the fact that states have differing legal structures for charter schools. In addition, desegregation orders have a variety of requirements, depending on the district. There are no simple rules for how they can meet state and federal civil rights obligations.

We intend for this guidance to facilitate charter school development, not frustrate it. We are seeking input from the relevant stakeholders, and have consulted with state education officials in Louisiana. Our central message is that an ounce of prevention is worth a pound of cure. If a charter school is being considered in a district with a court-ordered desegregation plan, notify the Department of Education or the Department of Justice of the school's plans early on so that we can work together. With early notice and cooperation, we believe new charter schools can avoid costly delays, challenges, or litigation.

1. These grants range from $25,000 to $150,000 per year for a charter school, and from $600,000 to $12 million per year for states. The grants are available to help schools with costs associated with planning, operating or expanding a new charter school. The money can be used to purchase materials and supplies, hire staff, and provide high quality professional development for teachers.

2. U.S. Dept. of Education, Office of Educational Research and Improvement, "The State of Charter Schools: Third Year Report" at 1 (1999) ("Third Year Report")

3. We are aware of schools in Arizona, Illinois, Florida, Georgia, Louisiana, Mississippi, North Carolina, South Carolina, and Texas.

4. Those districts were Lufkin, Texas; Oktibbeha County, Mississippi; and Georgetown County, South Carolina..

5. Third Year Report at 2.

6. States with number of covered districts: Alabama (100), Arkansas (16), Florida (16), Georgia (94), Louisiana (41), Mississippi (75), Missouri (25), North Carolina (9), South Carolina (24), Tennessee (17), Texas (42), Arizona (2), California (1), Connecticut (1), Illinois (4), Indiana (21), Louisiana (41), Kansas (1),New York (1), Utah (2), Virginia (4).

7. Dayton v. Brinkman, 443 U.S. 526, 538 (1979).

8. Third Year Report at 20.

9. Third Year Report at 2.

10. Third Year Report at 30.

11. A school is considered a "one-race" school if 90 % or more of the student body is of the same race.

12. 17 La. Rev. Stat. § 3991.