United States: Common Ground In Education: Closing Pennsylvania’s Low-Performing Charter Schools

With calls for greater academic accountability and the expansion of successful charter schools comes the responsibility for closing those charter schools that have failed to perform adequately. As charter schools, school districts and the Pennsylvania Department of Education wrestle with this issue in Pennsylvania, the Commonwealth Court has issued two recent decisions endorsing inadequate Pennsylvania System of School Assessment (PSSA) test results as a basis for nonrenewal or revocation of a charter. The court sets forth a three-prong analysis for this determination. Consistent application of this standard to charter schools can create a common ground for shutting low-performing charter schools, thereby increasing the resources available for quality public education seats.

The New Hope Decision

Under the Charter School Law, a charter may be revoked or not renewed for a number of reasons, including "[f]ailure to meet the requirements for student performance set forth in 22 Pa. Code Ch. 5 (relating to curriculum), subsequent regulations promulgated to replace 22 Pa. Code Ch. 5 or failure to meet any performance standard set forth in the written charter signed pursuant to section 1716-A." 24 P.S. §17-1729-A(2). In New Hope Academy Charter School v. School District of the City of York (Cmwlth. Ct. decided April 8, 2014), the court determined that the renewal of the charter school's charter was properly denied for failure to meet state academic performance requirements. New Hope at 1. The court noted that the charter school did not make Annual Yearly Progress (AYP) under any of the methods permitted by Pennsylvania for achieving AYP in any of its six years of existence. The court concluded:

A consistently low percentage of students scoring proficient or better on the PSSA constitutes a failure to satisfy Chapter 4 [replaced Chapter 5 in 1999] student performance requirements and is a valid ground for nonrenewal of a school's charter under Section 1729-A(a)(2) of the Charter School Law...where the charter school's proficiency rates are lower than those of its school district's schools as a whole and no clear pattern of significant improvement in its PSSA results is shown. New Hope at 10.

In addition to highlighting poor historical academic performance as the first measure of "inadequate PSSA test results," the New Hope court determined that the performance of the local school district should be a second area of inquiry for two reasons. First, a charter school's students are drawn from the same population as the school district's schools "and are therefore likely to have a similar educational background to the students in school district schools. The school district's academic results therefore provide some indication of whether the charter school's academic results are connected to its educational performance or are instead due to preexisting educational disadvantages and deficiencies in the school district." New Hope at 15. Just as importantly, since closure of a charter school would likely send many of their students back to the school district, it was important to determine if school district schools were achieving better academic results. New Hope at 15. As a result of the New Hope decision, a charter school with low academic performance can then assert the local school district's schools are performing no better.

Finally, the New Hope court held that a third prong of the analysis was whether there is a pattern of significant improvement in the PSSA test results: "In addition, the Board considered whether New Hope had improved its student performance and concluded that it had not shown real or steady improvement." New Hope at 11.

The Career Connections Decision

In Career Connections Charter High School v. School District of Pittsburgh (Cmwlth. Ct. decided May 19, 2014), the charter school argued that "neither the PDE's regulations nor the ... charter requires a minimum level of proficiency on the Pennsylvania System of School Assessment (PSSA) tests in order for a charter to be renewed." Career Connections at 6. Since the charter school failed to make AYP in reading and math for seven consecutive years, the first two prongs of the New Hope analysis were satisfied. The performance of the local school district was also taken into account. In comparison to the 12 feeder public schools for the charter school, the Pennsylvania Charter School Appeal Board (CAB) found that a majority of those public schools outperformed the charter school on PSSA test scores, satisfying the third prong under New Hope. The court held, "Accordingly, because there was substantial evidence that Career Connections did not show improvement in its students' performances and it was within the CAB's discretion to rely on the PSSA results, we agree with the CAB that this was a ground for nonrenewal of Career Connections' charter." Career Connections at 9-10.

The Ronald H. Brown Decision

In Ronald H. Brown Charter School v. Harrisburg City School District, 928 A.2d 1145 (Comwlth. Ct. 2007), the three-prong analysis employed under the New Hope and Career Connections decisions was created. In Brown, the charter school made the argument that "the PSSA was culturally biased and not indicative of the growth taking place at the school because the children attending the school were from urban areas and they had different points of reference." Brown at 9. An Iowa Test of Basic Skills was recommended as the proper metric by the charter school. The court ruled, "The Board was not required to accept the Iowa Test as a measure, but could reasonably rely on PSSA results, the uniform test used statewide to measure performance." Brown at 9. In utilizing the other two prongs of the test, the court looked at the charter school's failure to improve PSSA scores over the long-term, as well as its scores compared to school district schools:

Of the three School District schools that had a scaled score lower than the School in 5th grade math, one had a number of English as a Second Language (ESL) students, one was an alternative school for disruptive students and one had beginners who were ESL students... Brown at 11.

What Lies Ahead

Can the academic metrics pursuant to which charter schools are judged change? Not only can they change, they are changing. DOE regulations provide that high school level Keystone exams will supplant the PSSA for 11th graders upon approval by the U.S. Department of Education. 22 Pa. Code 4.51(f) adopted March 1, 2014. As the court in New Hope notes, "After implementation of that change, the Keystone Exam results would become the proper measure of 11th grade performance, although the PSSA will remain the measure of student performance for the other years that are tested." New Hope at 8.

Does this mean that charter schools that emphasize different educational approaches and educational philosophies will slowly be exiled from the charter school movement? To the contrary, it may be those very approaches that help provide the safety and support necessary for charter school students to achieve minimum levels of competence on the PSSA and Keystone exams, demonstrate improvement and score higher than their traditional public school counterparts.

Originally published by Charter Schools Alert.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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