Carol Burris, executive director of the Network for Public Education, speaks out against the lawsuit that eight New York City charter schools filed against the U.S. Department of Education, seeking more money.

She writes:

Eight New York State charter schools filed a frivolous lawsuit against the U.S. Department of Education. The lawsuit claims that in 2019, the U.S. Department of Education unfairly pulled promised funds from the schools when it called back unspent funding from a 2011 Charter Schools Program grant. 

Despite the claim, the 2019 clawback of funds was not only justified but also long overdue. And if there is fault, that fault lies with the schools and/or the New York State Education Department, which treated the CSP grant like a piggy bank with few, if any, rules. 

Here are the details.

In 2011, the New York State Education Department (NYSED) was given more than $13 million from the federal Charter School Program (CSP) to disperse as subgrants to charter schools as start-up or expansion funds. At the same time, New York’s big charter chains like Success Academy, KIPP, and Democracy Prep were also getting federal dollars from the CSP CMO grants.  There was so much CSP funding with limited demand that NYSED could not give it all away.

CSP grants to the states have a timeline of five years. That means that by 2016, NYSED should not have continued to make sub-grants. But apparently, it did not stop awarding grants and return the excess funds. It continued to give the federal dollars out.

From a dataset published in 2019, which you can find here, we know that NYSED committed $760,410 to two prospective Zeta Charter Schools and over $676,000 to Persistence Prep in Buffalo. It began dispersing funds to those schools in 2017, giving them some but not all funding. That is because these schools were not even planned to open until the fall of 2018. Other schools named in the lawsuit are not listed in the 2019 published database, which likely means that NYS continued making awards from the expired grant beyond 2018. 

Incredibly, even though it had not entirely spent its prior grant, the NYSED applied for yet another CSP grant and was approved for a whopping $78,888,888 in 2018. Why the state thought it needed those funds is beyond understanding. Grants are to be used primarily to open new charter schools, and the state was bumping up against its charter cap.

The award also appears to be a violation of the federal law called ESSA (Every Students Succeeds Act), which states:


‘‘(1) GRANTS.—No State entity may receive a  grant under this section for use in a State in which a  State entity is currently using a grant received under this section.

Even though reviewers noted that the smaller 2011 grant had not been completely spent and the state had little room for charter expansion under the cap, then Secretary of Education Betsy De Vos awarded nearly $79 million to the New York State Education Department from CSP.

Zeta charter schools, one of the plaintiffs in the lawsuit, received an additional $636,531 from that new 2018 grant, even though it had not wholly spent its prior grant before the clawback. In 2020 ,I filed a FOIA for the 2011 and 2018 grants with NYSED. I have not received the requested information. At the same time, however, I filed a FOIA with the U.S. Department of Education, which promptly provided information on CSP grants, including the 2018 grant to New York. 

Once again, NYSED had trouble giving the CSP money away and therefore asked for and received a waiver to disperse 2018 CSP funds to existing charter schools as Covid relief, even as the states’ charters were getting PPP funding, not available to public schools. 

Here is the bottom line. The NYSED grabbed as many federal dollars for charter schools as possible, regardless of actual need. When the U.S. DOE clawed the money back in 2019, it did exactly what it was supposed to do under the law—take back unspent funds from an expired grant. This lawsuit which claims that charter schools are still entitled to money to open schools that have been open for several years, is, in my opinion, unserious. Rather, it is one more attempt by charter schools to bully the Biden Education Department.  

With all of its political muscle power, the charter industry is furious that the Biden Administration is turning a program that has been a piggy bank for frivolous spending into a responsible program that functions with sensible rules of the road. Unfortunately, the New York Post reporter who wrote about the lawsuit made little or no attempt to dig deeper and uncover relevant facts. 

This is also another example that demonstrates why the federal Charter School Program needs strong oversight and reform. Since the Charter Schools Program was first launched in 1995, it has operated with minimal or no accountability. And that reform must include better supervision of states that think it is fine to apply for money they do not need and then push our federal tax dollars out the door without care. In the end, all taxpayers, including those of New York State, foot the bill.