A lawyer representing the Metro Nashville school board contends that Tennessee’s charter school law is unconstitutional.
John Borkowski, of the Washington. D.C., law firm of Hogan Lovells maintains that the 2002 law
“seems to impose increased costs on local governments with no offsetting subsidy from the state,” which he said violates the Tennessee Constitution.
Borkowski concluded that the state was requiring the districts to pay the full costs of charters without sharing the financial burden, thus draining the district schools of resources, which is unconstitutional:
The school board sought his advice in April to consider possible legal challenges to a state bill that would have given the state new power to approve charter schools that local boards of the state’s four largest counties, as well as Hardeman County, had denied.
The bill, supported by Mayor Karl Dean, Republican House Speaker Beth Harwell and other charter advocates, died on the final day of the legislative session. In his memo, Borkowski cites three “colorable legal arguments” against the bill, which is expected to be introduced again next year.
Yet he goes much further by questioning the constitutionality of the landmark law that established the funding mechanism for publicly financed, privately led charters in Tennessee.
A section of the Tennessee Constitution says that no law shall impose “increased expenditure requirements on cities or counties” unless the Tennessee General Assembly ensures the state shares those costs.
Under the state’s charter school funding formula, the combined state and local per-pupil dollar amount follows students to their new schools. This equates to about $9,200 per student in Nashville.
“The charter school receives all of the state and local per-pupil expenses, while the [local districts] still must cover existing fixed costs,” Borkowski wrote, adding: “There does not appear to be any state subsidy to share in these increased costs.”
The legal opinion provides fuel for an argument Metro school officials are making routinely of late: that the increase of charters in Nashville comes with a sizable financial toll. Twenty-one are set to operate in Metro by 2014-15, which officials say will cost $61.3 million.
Metro officials have argued the exit of students from traditional schools to charters hasn’t reduced the costs of maintaining schools they leave.
Keep an eye on this one. If the judges agree with Borkowski, Tennessee will have to find another source of funding for charters and stop bankrupting local school districts.
This could be a national issue.