Written for Bacon’s Rebellion By James C. Sherlock

This is pretty cringeworthy, even for the Biden administration.  

We have new rules for federal funding for new and expanded charter schools that are demonstrably racist.  They uniquely disadvantage the poorest minority students because charter schools are proven to help them learn better than any other option.

But the rules are offerings to a higher power – the teachers’ unions.  

The Biden administration Education Department’s new rules for use of federal charter school startup funding are virulently anti-charter and appear to directly violate the law they pretend to enforce.  

They regulate the distribution of federal funding – $400 million annually – under the charter schools startup support provisions of the 2015 Every Student Succeeds Act (ESSA) (the Act).

Those new rules are unambiguously aimed to stop the expansion of New York City’s Success Academy (S/A) and non-profit charter management organizations (CMOs) like it that focus their efforts on educating poor minority children in our inner cities.

But the new broom sweeps away pretty much every charter that might apply.

The CMOs have proven amazingly successful – embarrassingly so for the teachers’ unions that hate them for it.  These rules are political payback.

Actions are required by Virginia’s Governor and Attorney General.

Teachers unions provided both torrents of money and ground troops for Mr. Biden’s campaign.  They want the charter movement stopped.  Mr. Biden is there for them.

Collateral damage are minority children in Richmond, Petersburg, Portsmouth, Norfolk and even in Virginia’s wealthiest school divisions, whose economically disadvantaged children would benefit enormously from charters to replace failing schools.

Under the new rules, Virginia will never get federal funding support for a new or expanded charter school.  Ever.

We’ll have to move forward without them unless the rules are overturned.

Virginia’s charter school program.  Only one of Virginia’s current seven charters is targeted to support poor minorities.  Only one has a higher percentage of economically disadvantaged kids than the average for the state. That is Green Run Collegiate in Virginia Beach.

One of the seven, Richmond Career Education and Employment Charter School, has fewer than 30 students and cannot really be included for data purposes.  So call the number of Virginia charter schools six.

At my personal request Success Academy has offered to assist, pro bono, VDOE in designing a new charter schools system for Virginia that is targeted to assist poor minority children.  

This is like having Tiger Woods offer to teach you golf.

I hope VDOE will accept the offer, even if the Commonwealth needs to fund those schools without federal money.  

Biden’s anti-charter initiative.   George Will has written about the attempt by the Biden administration to effectively ban new charters through regulation.

So has The Wall Street Journal:

Under new Education Department rules proposed last month, it would become more difficult for charter schools to receive federal grants.

Applicants would have to prove that the existing public schools are overcrowded, even though those schools have declining enrollments while charters have thousands of kids on wait lists.

The new rules would also force charter schools to submit demographic data detailing the “racial and socioeconomic diversity of students and teachers in the charter school and the impact of the charter school on racial and socioeconomic diversity in the public school district.”

This would limit the ability of charter schools to open in low-income minority neighborhoods, which is where they are most needed, are most popular and have the greatest impact.

The WSJ neglected some of the roadblocks.  A direct quote from the rules:

In its application, an applicant must provide a letter from each partnering traditional public school or school district demonstrating a commitment to participate in the proposed charter-traditional collaboration. (emphasis added)

When hell freezes over.

From New Hampshire’s Concord Monitor:

Under the proposed new standards, a charter school applying for federally funded startup grants would need to show that there is a demand and a need for their school in their area through the use of a “community impact analysis.” That analysis could rely on the fact that public schools are overflowing with students, or that there is an “unmet demand” in the community.

A letter from New Hampshire’s Governor Sununu:

By focusing on the number of seats, rather than the number of ‘high-quality’ seats, the new standard fails to consider that a driving force in parents’ decisions is the desire for their child to attend a school that meets their child’s unique needs. It cannot be ignored that enrollment is down in many big-city school districts due to parents choosing to leave closed or persistently failing schools.

A “supplemental” rule specifically would eliminate federal funding from charter schools, like S/A, that have focused so successfully on helping poor minority children.  The specific language:

As a supplement to the application requirements in the ESEA, CMO NFP, and Developer NFP, the Department proposes new application requirements and assurances to help ensure the creation of new charter schools, and the replication and expansion of high-quality charter schools, that are: (1) Racially and socio-economically diverse …. (emphasis added).

That, in the guise of “equity,” is a poison pill aimed at the nation’s most vulnerable children.  Some examples below are from real Virginia schools.

Virginia’s most economically disadvantaged schools.  If Virginia were to develop inner city charters, which is my personal goal, none of them could be racially and socioeconomically diverse.  The existing public schools in Richmond, Petersburg, Portsmouth, Norfolk and some other cities are not racially and socioeconomically diverse.

Petersburg public schools in 2020 were 89% Black, 7% Hispanic and 83% economically disadvantaged.

Biden administration: Not economically or racially diverse.

Loudoun County.  At the other end of the economic spectrum is Loudoun County, the richest county in America.  I have compiled Loudoun school quality data from the VDOE website.  I have annotated each school with its percentage of economically disadvantaged students.

Loudoun schools in aggregate have only 21% economically disadvantaged students compared to a statewide figure of 41%.

You could be forgiven for thinking Loudon schools must knock the ball out of the park in statewide SOL results comparisons.  They have not,  especially for racial and socio-economic minorities.

Loudoun County has only four of its schools that reach the state average for economically disadvantaged students.   The results of those four schools on federally-required standardized tests are awful.  See the spreadsheet.

The two public charter schools Loudoun already has, Hillsboro Charter Academy (3% economically disadvantaged kids) and Middleburg Community Charter (1% economically disadvantaged), are exactly what they appear to be: rich kids’ academies without tuition.

Those two charters have even made acceptance into the schools hereditary.  God save the Queen.

Take Hamilton Elementary.  Please.  With only 12% economically disadvantaged kids, it managed to fail its Economically Disadvantaged, English Learner, Hispanic and Students with Disabilities students.   It did not have enough Black students to measure.  A clean sweep of failure.

Buffalo Trail Elementary has only 6.5% economically disadvantaged kids but failed utterly to educate them.

So what would happen if Loudoun were to apply to replace Hamilton Elementary or Buffalo Trail or, more compellingly, Frederick Douglas Elementary, Leesburg Elementary, Sugarland Elementary and Sully Elementary – look at them on the spreadsheet – with charter schools?

Biden administration:  Not economically or racially diverse.

Success Academy.  The student bodies of S/A’s best-in-the-State-of-New York public schools in NYC are 94% minority and 90% economically disadvantaged.  Yet they surpass the public schools of the richest enclaves in New York on State exams.   Pretty much like Wise County schools surpass those of Loudoun.

Biden administration:  Wise County, Petersburg and Loudoun schools are not economically or racially diverse.

Where are we?

Biden’s new “rules” gut the underlying law and are transparently meant to do so.

Does anyone drawing breath think that the new rules are aimed at anything other than the world-class charters in New York City that so vex the teachers’ unions’ leadership?  The fact that the new rules effectively eliminate new federal charter funding virtually everywhere is absolutely intentional.

Virginia will never have another charter school if it relies on federal funding under these rules.

What to do about Virginia’s charter school program? 

Governor Youngkin and VDOE should proceed with the design of a Virginia charter schools program that targets Virginia’s worst schools, does not require district approval and assumes no federal funding.

The federal Title 1 program requires the states to identify and help with federal money the 5% of worst performing schools.  Yet the new rules preclude federal funding support to what has been proven most effective – replacing them with charters.

The only losers are the children.  They don’t vote or make campaign donations.

As for the $301 million in Title 1 funds that are headed our way, I hope the Youngkin administration will find a better way to oversee their use than has been demonstrated in the past.

There is no objective evidence whatever that these funds have made a positive difference for the poorest children in Virginia schools, for whom they were meant.

Biden can’t tell Virginia what to do with state funds in state schools.  Success Academy can help Virginia develop a plan that will gather big support among minority voters in Virginia as well as Republicans.  

Presented as targeted at helping minority students, which is S/A’s specialty, it will be a winner.  Perhaps the Lieutenant Governor can help design the program and help sell it.  It would be a great issue for her.  I know it is one she cares about very much. 

What to do about Biden’s new regulations? I have two recommendations.  

1.  VDOE.  The comment period was only 30 days.  Federal regulations are normally posted for comment for 60 or 90 days.  This may be overturned as a violation of regulatory policy.

VDOE leadership should make a public issue out of those rules.  They are designed on their face to disadvantage minorities.  

2.  The Attorney General.  Biden’s proposed “ rules” violate the spirit and letter of Every Student Succeeds Act (ESSA).  

From the Purpose clause (SEC 4301) of ESSA“Part C – Expanding Opportunity through Charter Schools”

It is the purpose of this part to— 

(3) increase the number of high-quality charter schools available to students across the United States; 

(6) expand opportunities for children with disabilities, English learners, and other traditionally underserved students to attend charter schools and meet the challenging State academic standards; (Emphasis added)

Yet the new rules are unambiguously designed to decrease the number of new charter schools and to contract the opportunities for children spelled out in paragraph (6) above.  

It is hard to imagine that the new rules can be defended successfully under that law.  The way they are constructed, it is hard to see how any state would qualify for the charter startup money.   That is clearly the intent.

Attorney General Miyares should compel the Biden DOE to explain in court how the new rules are in compliance with the Congressionally-stated purpose of ESSA.