Texas has five million public school students. It has 356,000 charter school students. The latter matter far more to the Governor, the Legislature and the State Education Commissioner than the former.

This report came to me from Austin, where officials are trying to remove any “barriers” to charter. The local school board has no say in whether a new charter should open in their district. Local folks may be strong supporters of their public schools but they are not allowed to veto new charter schools.

To show how nutty this embrace of charters is, one legislator tried to slip in a proviso giving charters the power of eminent domain. Imagine the Jones family sitting down for their evening meal, and someone knocks at their door to inform them that a KIPP or IDEA charter needs their lot for a playground; they are given a few days or weeks to vacate their beloved home.

On the third reading of the bill—-SB 28– the eminent domain power was deleted, but the bill continues to be a direct assault on local control and democratic governance. When the big money comes calling in Texas, those ideas don’t matter any more.

From my friend in Texas:

Note amendment to allow charters eminent domain was defeated on third reading.
Bill now goes to House Public Ed Committee, chaired by Harold Dutton, D-Houston, who filed a companion bill to SB 28.  With a R dominated committee and House, we have some challenges ahead.


—–Original Message—–
From: peveritt888@gmail.com
To: peveritt888@gmail.com
Sent: Mon, Apr 19, 2021 3:56 pm
Subject: Summary of SB 28 

 THANKS to many of you who contacted your Senators on SB 28. 

I’ll keep you posted as SB 28 and similar bills move forward. The first section is a short summary of SB 28 – but see more detail in Section 2 if you’re interested. 

SB 28 Approved by Texas Senate 
Important: An amendment to give charter schools the power of 
eminent domain was corrected by Sen. West
Section 1:  Summary

  • The Texas Senate gave final approval to SB 28 on April 15, 2021 in a 16-14 vote with all Democrats except one, and two Republicans (Senators Seliger and Nichols), voting NO.(Sen. Lucio was absent for the final vote but voted in favor of SB 28 on earlier votes).
  • SB 28 is one of Lt. Governor Patrick’s priority bills and is strongly supported by the Texas Charter School Association. It limits state and local authority over charter school expansion including the requirement for a supermajority vote by the State Board of Education to veto new charter school applications. 
  • Sen. Bryan Hughes slipped in an amendment to give charter schools the power of eminent domain without ever stating what the amendment would do.  
  • Importantly, Sen. Royce West corrected this amendment the next day with an amendment that was passed by the full Senate stating clearly, “An open-enrollment charter school does not have the power of eminent domain.”
  • Please thank Senators who voted NO on SB 28. 
  • We’ll monitor SB 28 as it moves forward, along with the companion House bill – HB 3279 which still eliminates the SBOE from the charter approval process – and HB 1348 which now includes much of the language in SB 28 and includes eminent domain.

Section 2:  For the Record – Read More About SB 28

SB 28 (authored by Sen. Bettencourt) takes away the authority of state and local elected officials to approve new charter schools.  It originally eliminated the elected State Board of Education from the approval process for new charter applications and gave all authority to the appointed Commissioner.  A vote to suspend the rules which would allow consideration of the bill was opposed by all Democrats (except Sen. Lucio), and one Republican (Sen. Seliger). It was approved narrowly by only one vote.

Extensive concerns were raised by legislators and the public about the elimination of the SBOE role in charter approval. The Senate passed an amendment by Sen. Bettencourt that kept the SBOE in the approval process but changed the SBOE vote required for a veto from a simple majority to a supermajority (9 of 15 SBOE members). The amendment also added four additional considerations that the SBOE may use as a rationale to veto a charter application to the five that were included in the committee substitute (total of 9).  Many education organizations did not support the requirement for a supermajority.  They supported continuing the simple majority vote because it is a more democratic and inclusive process. In addition, Senate accepted only nine considerations that could be the rationale for the SBOE veto, excluding other important considerations submitted by the SBOE.  

An amendment proposed by Sen. Bryan Hughes to give charter schools the extraordinary power of eminent domain passed (17-14)His amendment would give eminent domain to the private organizations that operate charter schools which have self-selected governing Boards that are not elected by voters.  

Sen. Hughes did not mention the words “eminent domain” in his summary of the amendment to inform members of the Senate.  He stated that the amendment simply “covers these topics in more detail than the language in the bill.  The intent is the same.  The amendment gives more clarity to make sure that everyone knows what the rules are moving forward.”

Importantly, Sen. Royce West fixed this issue with an amendment the next day that ensured the charter schools do NOT have the power of eminent domain. Sen. West stated that Sen. Hughes told him that the amendment applied to TEC Sect. 12.103(c) which in fact, addresses charter exemptions from zoning laws in cities with 20,000 population or less – with no mention of eminent domain. Sen. West stated that he did know of a private corporation like a charter school that had the authority to exercise the power of eminent domain. Sen. West’s amendment was adopted by a voice vote with all members deemed to have voted YES (Sen. Lucio was absent).  The amendment clearly stated, “An open-enrollment charter school does not have the power of eminent domain.”

Amendment 2 is consistent with the purposed of this bill.

An important part of Senate Bill 28 of course is zoning equality provisions to make sure that political subdivisions, that is municipalities, counties, special purpose districts, among others, to make sure that they treat all the schools alike – the charter schools and our traditional public schools.The Education Committee heard testimony that this doesn’t always happen.So this amendment covers these topics in more detail than the language already in the bill.The intent is the same.

Public school supporter Patti Everitt summed up the advantageous state of charters compared public schools with elected boards:

Authority to approve new charter schools

School districts have no authority over the approval of charter schools.

For new charters that are seeking to operate in Texas, the Commissioner makes an initial approval and the State Board can veto his approval by a simple majority vote.
However, SB 28 seeks to change the majority vote to supermajority vote and limits the reasons that the SBOE can veto a new charter applicant.

For charters that are currently in operation and seek to open a new campus through the “amendment” process, the Commissioner has the sole approval authority.
Once an existing charter meets certain TEA criteria (which the Commissioner can waive and often does), the charter can apply for an unlimited number of new charter campuses anywhere in the state, expanding its geographic boundaries and maximum enrollment cap.  The Commissioner has approved over 500 new campuses through the amendment process in the last six years alone.  Charter amendments are an administrative process that do not require a public meeting or public notice.  Schools districts and legislators receive a notice of amendments proposed in their districts but usually only as the amendment is filed with the state.

School districts may submit a “Statement of Impact” form to TEA for both new applications and amendments that documents the impact of the new charter on the district.  The form allows only a small box for comments, but we have worked with districts to submit a comprehensive assessment to TEA that documents the fiscal, academic, and program impact of the new charter. However, TEA is not required to consider fiscal impact in its approval process.

School districts lose per student funding when a student transfers from the district to a charter school.  Districts cannot cut costs dollar-for-dollar to the loss of revenue because charters . Charters draw students from multiple district schools, grade levels, and classes which makes it difficult for districts to reduce variable costs, such as teachers, who are still needed in each classroom to serve remaining students.  In addition, fixed costs for expenses such as utilities, building maintenance, janitorial services, and transportation remain largely the same with little or no savings possible.  As a result, charter schools have a significant fiscal impact on school districts, draining resources from all district public schools and often requiring cuts in academics, programs, or staff.

In addition, charter schools receive an average of about $1,150 more per student from the state’s Foundation School Program than what the same student would have cost in their home school district – a total of $25,300 more per typical elementary classroom of 22 students on average.  This is because all charters – regardless of size – receive the average of the small-to-mid-size allotment even though this allotment is intended to help small districts with 5,000 and fewer students address costs related to economies of scale.

The Texas Legislative Budget Board estimated that the state would have saved $882 million over the prior FY 18-19 biennium if charter schools received the same per-student funding as the districts where charters have the highest enrollment (estimates based on pre- HB3 state funding).