The Massachusetts Board of Elementary and Secondary Education

Charter School Regulations, 603 CMR 1.00

To:	Members of the Board of Elementary and Secondary Education
From:	Mitchell D. Chester, Ed.D., Commissioner
Date:	December 4, 2009

At the September 22, 2009 meeting of the Board of Elementary and Secondary Education, I presented proposed amendments to the charter school regulations (603 CMR 1.00) for the Board's initial review and provided you with information on the recommendations of the chairs of the Legislature's Joint Committee on Education following their review of the Gloucester Community Arts Charter School application process. The proposed amendments respond to issues that the chairs of the Joint Committee raised (summarized below) and include some additional changes that are more housekeeping in nature.

The Board reviewed the proposed amendments at the September meeting and voted to solicit public comment on them, which we have done. We received two comments, which are summarized below.

The amendments to the regulations affirm that the Board and Department took very seriously the recommendations that the chairs of the Joint Committee made about the charter application and approval process. In fact, we are already implementing procedures outlined in the amendments. We are mindful that the education reform bill pending in the Legislature would revise the charter school statute and would likely require the Board to further revise the regulations. In the meantime, however, I believe the interests of the public and the education community would be served by our moving forward with these amendments to the charter school regulations, and I have so notified the chairs of the Joint Committee. I recommend that the Board adopt these amendments at the December 15th Board meeting.

Recommendations from the Joint Committee Chairs

On June 8, 2009, the Joint Committee on Education held a public hearing in Gloucester to review the concerns raised by city officials, members of the Gloucester legislative delegation, and other members of the community with regard to our approval of the charter application from the Gloucester Community Arts Charter School (GCACS). Following that hearing, the two chairs of the committee, Senator Robert O'Leary and Representative Martha Walz, offered several observations and recommendations to the Board in a letter dated June 24, 2009, that I previously forwarded to you.

Census data

Under state law, if a charter school is proposed to be located in a community whose population is less than 30,000, it must be chartered as a regional school. The GCACS application proposed to serve only the city of Gloucester, and we determined, using the most recent population estimate from the U.S. Census Bureau, that the city was above the 30,000 threshold. Some community members questioned whether the Census data was the most accurate and suggested using other population data from the city clerk's office. After hearing testimony on this matter, the chairs agreed that the Census data was the most appropriate to use. They recommend that we amend our regulations to incorporate what is currently our practice, to avoid any misunderstanding in the future. I concur with this recommendation. (See proposed new section 1.04(4)(e).)

Board member attendance at public hearings

The chairs correctly note that our current regulations are ambiguous as to whether a Board member must attend every hearing or whether it is sufficient for a member to be present at least at one meeting. It has been our practice to try to have a Board member at every hearing, but occasionally, as happened in Gloucester, schedule conflicts preclude a member from attending. In this case, we chose to proceed with the hearing with Associate Commissioner Jeff Wulfson representing the Commissioner and without a Board member present, as we had already rescheduled the hearing once, and another scheduling change at the last minute would have inconvenienced many of those in the community who planned to attend.

It is clear from the reaction to this decision that the physical presence of a Board member at each hearing is important to many of those who take the time to testify. I concur with the chairs' recommendation that we should amend the regulations to clarify that a Board member needs to be in attendance at each hearing. Per the Board's direction at the September meeting, we further revised this provision to add that the Board member shall report to the Board on the hearing. (See section 1.04(3)(b).)

Location of public hearings

In 2004, the Department adopted a policy to hold public hearings on charter school applications in or within a convenient distance of the community or communities in which a proposed charter school is to be located. The chairs recommend that the regulations be amended to require a hearing in each of the school districts from which a proposed school will draw students. This would be extremely difficult to implement, particularly in the case of charter schools that serve half a dozen or more communities. Further, based upon the Department's experience in conducting these hearings, such a change would not necessarily increase public access to the process because it would increase significantly the challenges of scheduling hearings on dates and times that are convenient to the community and for which a Board member is available to attend.

I believe both the letter and spirit of our current policy have been observed faithfully since it was adopted, and I am not aware of any complaints, either for the Gloucester application or for any other application, that a public hearing was not conveniently located. Therefore, I recommend that we retain the current policy and codify it in regulation. (See section 1.04(3)(b).)

Waiver of regulations

Because of the absence of a Board member at the Gloucester hearing, I asked the Board to waive the regulation retroactively in that particular instance. While the Board has the legal authority to waive procedural requirements when the waiver does not deny a party its due process or substantive rights, I also take to heart the chairs' observation that such a waiver can create perceptions of unfairness, particularly in the context of a controversial decision. The chairs urge us to be judicious in using waivers in the future, and I agree.

Other Proposed Amendments to the Charter School Regulations

1.02: Definitions

Application cycle: clarification of the span of the application cycle for new charter schools.

Charter school: clarification that Commonwealth charter schools are local education agencies and that Horace Mann charter schools operate under a memorandum of understanding with the district.

Regional charter school: clarification that districts must be specified for a regional charter school.

1.04: Charter Application and Procedures for Granting Charters

1.04(2): Horace Mann application must include the proposed memorandum of understanding.

1.04(2): School committee and union approval of Horace Mann applications must be in writing.

1.04(3)(b): Addition of the word "each" to clarify attendance of a member of the Board of Elementary and Secondary Education at public hearings on pending applications for new charter schools.

1.04(4)(e): Addition of information regarding use of the United States Census to determine the population of a city or town proposed as the sole location of a charter school.

1.05: Criteria for Assessment and Approval of Charter Applications, Awarding of Charters

1.05(2)(c): Clarification of requirement to submit "criteria and procedures for expulsion of students" rather than "code of conduct" to Department, as described in M.G.L. c.71, §89(p).

1.06: Charter School Enrollment

1.06(5)(b) and (c): Clarification that applicants for Horace Mann charter schools are from the district in which the school is located.

1.08: Charter School Funding

1.08(1): Inclusion of the memorandum of understanding for Horace Mann charter schools as the vehicle for defining funding.

1.08(10): Revision of "advance certification" to "good faith estimate" of quarterly tuition payments.

1.08(11): Clarification of students entitled to transportation provided by the host district.

1.11: Amendments to Charters

1.11(2)(d): Replace "code of conduct" with "expulsion policy."

1.11(2)(h): Add "memorandum of understanding" to the list of minor amendments.

Comments and Response

The Department solicited public comment on the proposed amendments in accordance with the Administrative Procedure Act. We received only two comments. They are summarized below along with our responses.

The Massachusetts School Nurses Organization suggested an addition to 603 CMR 1.05 1(b), amending the text to include "medical conditions" in citing compliance with regulations and guidelines for English learners and students with disabilities. Response: Because charter schools are required to comply with all applicable education and public health laws and regulations, there is no need to add to the regulations a specific reference to students' medical conditions. No change is recommended.
The Massachusetts Association of School Committees, Inc., suggests that a specific reference to the designations of underperforming and chronically underperforming schools be included in 603 CMR 1.13(1), as reasons charters could be revoked, put on probation, suspended, or non-renewed, due to the five-year timeline for renewal.

Response: Charter schools are evaluated at renewal for academic success, based on factors that include the use of MCAS data, NCLB designations and, in the future, growth data. In addition, a charter may be revoked or put on probation at any time during the charter term, based on standards listed in the regulations. The current regulations provide ample opportunity and authority for the Board of Elementary and Secondary Education to hold charter schools accountable for academic performance. No change is recommended.

Copies of the two public comment letters are attached for your information (attachment 1).

Enclosed with this memorandum (attachment 2) is a red-lined version of the regulations that shows all of the proposed amendments. Also enclosed is a motion to approve the proposed amendments as final regulations.

If you have any questions or require additional information, please contact Jeff Wulfson, associate commissioner, at 781-338-6500; Mary Street, director of charter schools, at 781-338-3200; or me.

Enclosures:

Letters of comment (2)
Proposed amendments to 603 CMR 1.00
Motion