Eva Moskowitz’s Pre-K Crusade and Her Not-So-Airtight Legal Argument
Success Academies CEO Eva Moskowitz is in a twist over NYC Mayor Bill DeBlasio’s pre-K vendor requirements. She does not want to be subject to NYC oversight for Success Academies pre-K. In a March 25, 2016, New York Daily News opinion piece, Moskowitz quotes language from the 2014 legislation in an effort to show that her charter schools do not have to answer to NYC:
Two years ago, New York State passed a law giving charter schools the right to operate pre-Ks. The law provided that with respect to oversight, “all such monitoring, programmatic review and operational requirements . . . shall be the responsibility of the charter [authorizer].” Thus, a charter’s pre-K program would be regulated and overseen just like its other grades.
New York City, however, has insisted that charter schools agree to a 241-page contract that regulates every aspect of their programs: their curriculum, field trips, professional development, scheduling, discipline, playtime and use of technology. For example, it prohibits more than three field trips per year involving transportation; dictates the precise amount of playtime that must be allowed (2 hours and 7 minutes); and prohibits the use of a SmartBoard (an interactive screen that is essentially a modern blackboard) for more than a 30 minutes a week.
While many charter schools disagree that they should be subject to this contract, many have understandably chosen simply to accept it. They want to focus on educating children, not fighting City Hall.
The section in New York’s 2014 pre-K legislation to which Moskowitz is referring comes near the end of the bill. It reads as follows:
- Notwithstanding paragraph (a) of subdivision one of section twenty-eight hundred fifty-four of this chapter and paragraph (c) of subdivision two of section twenty-eight hundred fifty-four of this chapter, charter schools shall be eligible to participate in universal full-day pre-kindergarten programs under this section, provided that all such monitoring, programmatic review and operational requirements under this section shall be the responsibility of the charter entity and shall be consistent with the requirements under article fifty-six of this chapter. The provisions of paragraph (b) of subdivision two of section twenty-eight hundred fifty-four of this chapter shall apply to the admission of pre-kindergarten students, except parents of pre-kindergarten children may submit applications for the two thousand fourteen–two thousand fifteen school year by a date to be determined by the charter school upon selection to participate in the universal full-day pre-kindergarten program. The limitations on the employment of uncertified teachers under paragraph (a-1) of subdivision three of section twenty-eight hundred fifty-four of this chapter shall apply to all teachers from pre-kindergarten through grade twelve.
The two “notwithstandings” related to Article 56 (Charter Schools) Section 2854 (General Requirements) are noteworthy. The first (paragraph “a” of subdivision one) overrides that nothing is to override this charter law (you read that right)– one which does not account for charters running state-funded pre-K programs. The second (paragraph “c” of subdivision 2) overrides that a charter “shall serve grades one through twelve” but that charters are also allowed “to run a kindergarten program.” In other words, the “notwithstandings” are able to override previous law (even previous “notwithstandings”) to make room for New York charters to run pre-K programs.
As for the stipulation that “operational requirements… shall be consistent with the requirements under Article 56 of this chapter,” one important section states,
A charter school shall be exempt from all other state and local laws, rules, regulations or policies governing public or private schools, boards of education, school districts and political subdivisions, including those relating to school personnel and students, except as specifically provided in the school’s charter or in this article.
But here is the problem: Concerning the oversight of New York’s pre-K program as noted in 2014, nothing is to override the latter legislation (which is numbered Article 73, and, as such, comes after Article 56):
10. Notwithstanding any provision of law to the contrary, a universal full-day pre-kindergarten provider shall be inspected by the department, the school district with which it partners, if any, and its respective licensing, permitting, regulatory, oversight, registration or enrolling agency or entity no fewer than two times per school year, at least one inspection of which shall be performed by the eligible agency’s respective licensing, permitting, regulatory, oversight, registration or enrolling agency, as applicable. [Emphasis added.]
So, New York’s 2014 pre-K legislation states that it is not only the chartering authority that has oversight of the charter when it comes to the pre-K dollars; the chartering authority is one entity, with others possibly being a local district and definitely, the state.
Thus, it seems that the section in the 2014 pre-K law from which Moskowitz is quoting would not be sufficient to remove district oversight from her schools– if the district approved her pre-K program. However, Moskowitz refused to apply to the district for pre-K approval.
What is interesting as one reads the language of New York’s 2014 universal pre-K statute is that it opens with the protocol for applying for funding. According to the statute, pre-K vendors are to apply to school districts so that the district might compose a “consolidated application.” In the case that a potential vendor’s application is rejected by district, the vendor is then able to apply directly to the state.
Here is language from the 2014 legislation:
3. (a) The universal full-day pre-kindergarten program shall make awards to (i) consolidated applications submitted by school districts which include pre-kindergarten programs offered by schools, non-profit organizations, community-based organizations, charter schools, libraries and/or museums, which shall demonstrate geographic diversity within the area to be served as well as diversity of providers; and (ii) non-profit organizations, community-based organizations, charter schools, libraries and museums, which may apply individually to the extent allowed under paragraph (b) of this subdivision. Any consolidated application must include, but is not limited to, the names of individual locations and providers, applicable licenses, facility lease information, and intended staffing plans and certifications.
(b) Prior to submission of a consolidated application, a school district shall widely solicit non-profit organizations, community-based organizations, charter schools, libraries and museums located within the school district to be included in its application. The school district shall notify any applicant who has been denied for inclusion in the consolidated application no later than two weeks prior to submission of such application. Such eligible providers denied for inclusion may apply individually as provided in paragraph (a) of this subdivision.
So, Moskowitz could have chosen to apply to the district and on her application, choose not to agree to NYC oversight– thereby establishing that she tried to apply.
Her application would have almost certainly been rejected, and then, she could have applied directly to the state, thereby potentially dodging the NYC oversight that she finds so distasteful and instead facing only state oversight.
Therefore, a potential weakness in her alleged lawsuit (it might be coming yet) is that she did not follow as much of the legislatively-mandated protocol as she could have. It would have been easy enough for her to submit an application that suited her and that she anticipated would not suit DeBlasio.
Still another weakness in suing DeBlasio (i.e., NYC) is that the 2014 legislation dictates that potential pre-K vendors are to first submit their applications to districts. This is not DeBlasio’s mandate; it’s in the legislation. So, it seems her principal beef is with the requirements set forth in the legislation itself.
Still, is DeBlasio out of line in setting forth accountability specifics in the pre-K vendor funding application in the first place? It does not seem so. The 2014 pre-K legislation includes the following:
- All universal full-day pre-kindergarten programs shall demonstrate quality on the following elements:
(b) learning environment, materials and supplies;
(c) family engagement;
(d) staffing patterns;
(e) teacher education and experience;
(f) facility quality;
(g) physical well-being, health and nutrition; and
(h) partnerships with non-profit, community and educational institutions. …
- The department shall develop a scoring system, which it shall use to evaluate which applications shall be funded on a competitive basis based on merit and factors including but not limited to the criteria listed above and student and community need. Upon review of applications….
- The department shall develop a statewide inspection protocol, which shall provide for annual inspections of all universal full-day pre-kindergarten providers, and shall develop a quality assurance protocol and physical plant review protocol for such reviews.
And, as previously noted, section 10 includes the “notwithstanding any provision of the law to the contrary” regarding shared oversight:
10. Notwithstanding any provision of law to the contrary, a universal full-day pre-kindergarten provider shall be inspected by the department, the school district with which it partners, if any, and its respective licensing, permitting, regulatory, oversight, registration or enrolling agency or entity no fewer than two times per school year, at least one inspection of which shall be performed by the eligible agency’s respective licensing, permitting, regulatory, oversight, registration or enrolling agency, as applicable.
Furthermore (and also previously noted), the section from which Moskowitz quotes as support for state-funded, charter-pre-K autonomy–section 12– does not begin with the sweeping “notwithstanding any provision of the law to the contrary” statement. Moreover, even though Article 56 (charter schools) begins with a “notwithstanding any provision of the law to the contrary” statement, that statement is waived in the pre-K law because if it were not waived, Article 56 would not allow New York charter schools to operate pre-K programs.
All of this is to say that the section Moskowitz quotes is one of charter responsibility for adding pre-K and not charter authority to solely supervise its pre-K program. Moreover, the responsibility for charter schools’ running pre-K is to be consistent with the responsibility for school operation under Article 56. Such is also consistent with the stipulation that all potential pre-K vendors (charters included) apply to the district in the first place.
If I am able to argue as much in a blog post, I think Moskowitz could face a rough time of it if she really does take DeBlasio/NYC to court.
Coming June 2016 from TC Press: