BESE approves Brockton charter waiver

The Board of Elementary and Secondary Education voted 8 to 3 on Tuesday, November 25, to grant a waiver that allows a charter school application in Brockton to move forward against the wishes of the Brockton Public Schools, local legislators, the Brockton Education Association and the MTA.

Education Commissioner Mitchell Chester recommended that the board approve the waiver for the New Heights Charter School, citing "exceptional" circumstances. A waiver was required because student growth scores in Brockton had pushed the district out of the bottom 10 percent of districts in student performance. State law mandates that the first two charters granted in a given year be located in districts in the bottom 10 percent.

At the BESE meeting, Chester contended that the charter applicant was not aware that the law would affect whether a charter could be opened in Brockton. MTA President Barbara Madeloni argued that “ignorance of the law is no excuse.” She detailed why the law clearly should disqualify the application from moving forward and explained why opening a charter school over the objections of the community hurts the students attending district schools.

Harneen Chernow, the labor representative on BESE, asked why the commissioner seemed only concerned about an “equitable” process for the applicant. “How do you weight an equitable process for Brockton?” she asked.

The board vote allows the application to move forward, but does not lead to automatic approval of the charter. Brockton officials, the BEA and others will continue to fight the charter application at a public hearing on Monday, Dec. 8, from 4 to 6 p.m. at the Brockton Main Library meeting room, 304 Main St., Brockton.

Board members Chernow, Mary Ann Stewart and Penny Noyce voted against the waiver.

Below is testimony submitted by MTA President Barbara Madeloni in opposition to the waiver request.

Testimony of MTA President Barbara Madeloni in opposition to granting the New Heights Charter School a waiver
November 25, 2014

Chairwoman McKenna, members of the committee, thank you for giving me this opportunity to testify before you on the New Heights Charter School waiver request. Since several of you heard testimony from the MTA and educators in Brockton at the special hearing on this issue, I will keep my comments brief.

It is especially easy for me to be brief because Commissioner Chester has agreed with most of our arguments in his memorandum dated November 20 on this issue.

He agrees that the state law should be interpreted as it reads in plain English: no fewer than two charter schools approved in a given year must be located in districts whose students’ performance is in the bottom 10 percent of districts statewide.

He agrees that this language means that if there are only one or two applicants in a given year, as was the case this year, only applicants seeking to move into a district with performance in the bottom 10 percent may be accepted.

He agrees that this board properly established regulations that define what formula to use in determining which districts are in the bottom 10 percent.

He agrees that the board properly adopted an initial formula that established a split of 80 percent achievement and 20 percent growth, and later properly changed that formula to 75/25.

He agreed that Brockton’s performance was not in the bottom 10 percent in the requisite time frame under either formula.

Despite agreeing with all our arguments, he still asks you to grant the New Heights Charter School a waiver. He argues, in essence, that it would be unfair to New Heights not to allow the application to go forward because it is “very likely that the applicant group did not realize the potential impact of the ‘not less than 2’ clause.” We find that argument disturbing, since DESE agrees with the position detailed in MTA’s written testimony that the Legislature was deliberate and intentional in choosing the “not less than 2” language. The fact that the applicant may not have understood the impact of this provision does not obviate the fact that the law did exactly what it was designed to do in this instance. As the saying goes, ignorance of the law is no excuse. The commissioner, having conceded the correctness of our interpretation, has no legal authority to waive the law or the properly promulgated regulations: To do so would render the waiver inconsistent with the law and would be unenforceable.

A second rationale offered by the commissioner is that he “rejects the notion that charter schools represent a punishment for low performance.” Although the commissioner said that it is not appropriate for this board to consider the impact of the New Heights Charter School on the Brockton Public Schools in granting this waiver request, he actually raises that issue himself by offering his opinion that having a charter school move into a community is not a “punishment.” I can assure that having a charter school open in their midst over the objections of that community certainly feels like a “punishment” to many.

It feels like a punishment because, after an initial period of reimbursement, the district loses funds to the charter school and district students lose services.

It feels like a punishment because charter schools use enrollment practices that enable those schools to serve fewer special needs students, English language learners, and students with behavior issues than the sending districts, thereby leaving district schools with fewer resources to educate a higher need population.

It feels like a punishment when a charter school that has used these enrollment practices is subsequently lauded if its test scores are higher than the district schools’ scores, stigmatizing the teachers who work in the district schools and the students who learn in them.

It feels like a punishment if district schools that are thus disadvantaged by charter schools are not only stigmatized, but actually given a lower accountability rating and subject to sanctions by the state.

In short, the commissioner’s argument that you should grant this waiver is predicated on the contention that it would be unfair to deny New Heights the opportunity to move forward, and no harm to the Brockton Public Schools if it does.

We would argue that the reverse is true. It is fair to require New Heights to play by the rules, as Brockton has done for so many years. And it would, in fact, hurt the Brockton Public Schools to allow this application to go forward for the many reasons that educators, administrators, parents and elected officials in Brockton have enumerated.