Rep. Marty Walz and I have sponsored legislation (House 1090) to create virtual charter schools. This legislation is coming up for a hearing before the legislature’s education committee next Tuesday, June 21 at 10AM in Room A-2 in the State House. An annotated version of the bill appears below.
A “charter” school is essentially a public school authorized by the state Board of Elementary and Secondary Education instead of a local school committee. A “virtual” school is a school that relies primarily on remote instruction through the internet and other telecommunications. Because virtual schools are by definition unconstrained by geographical boundaries, it makes sense to authorize and regulate them at the state level rather than the local level.
A virtual charter school could be a diploma granting institution and would be subject to the MCAS and other curriculum requirements. However, a key feature of the bill as drafted is that a virtual charter school may offer courses to students enrolled in local district schools, who would then remain the diploma granting institution. The tuition to be charged to district schools for individual courses would be spelled out in the application for the charter. A virtual charter school could choose, for example, to specialize in mathematics or language arts and effectively enrich the offerings of all district schools in the state.
Among the issues in the draft that merit careful consideration by the committee are the following:
- Admissions Criteria — as drafted, the bill admissions rules for virtual charter schools are the same as for all charter schools: They must accept all interested students and in the case of oversubscription select by a lottery. Of course, they must be blind to race, creed, etc., but explictly prohibiting any ability based selection is unnecessary. This language reflects a long standing concern that brick-and-mortar charter schools would select only the most able students and then claim superior results over district schools. However, virtual charter schools are not directly competitive with district schools and there is no reason to “level the playing field”. Virtual schools may be especially cost-effective for gifted students or students with other special needs and should be allowed to define and serve a particular subgroup of students.
- Funding — as drafted, the bill allows funding through the school choice mechanism. So, if a child enrolls full-time in the virtual school , the virtual school will collect $5,000 from the child’s school district. This is roughly half the state-wide average per pupil cost for regular day students. In its traditional use this formula makes economic sense: if a school district decides to open its doors and accept a few students from other districts, it may incur no additional costs by doing so — it simply makes its classes a little larger. However, using this formula to define the tuition for a whole school requires the school to be twice as efficient as the average school in the state. In the long run, I believe that virtual schooling has the potential to be effective with higher student/teacher ratios, but student/teacher ratios in early virtual schools are not that different than ratios in traditional schools. Virtual schooling has its advantage at this stage in providing more differentiation and flexibility, not necessarily cheaper schooling. Although high-efficiency may be achievable under the legislation by specializing in a subject matter (like languages), the prohibition against targeting students with a particular set of learning needs makes it harder for virtual charter schools to be efficient.
- Cap at five schools statewide — the cap at five schools is probably too low given that some of the charters might offer only limited subject matter. If one had a math VCS, a language VCS and a science VCS, and a couple of full-curriculum VCS’s, one would have run out the allotment without creating many options or much competition among the schools. The cap on regular charters has always been a subject of negotiation between teachers unions and district schools, on one side, pushing for lower caps and the Board of Elementary and Secondary Education, on the other side, pushing for higher caps. As to virtual charter schools, since the Board of ESE is so conservative with respect to virtual charter schools, there is no particular argument for setting a low cap — the Board will not be compelled to issue charters up to the cap level and can use its discretion to assure a balanced set of offerings.
- Hybrid programs — the legislation does not explicitly authorize courses that are half virtual and half classroom based. It does allow virtual charter schools to offer individual courses to students and that is an important strength of the legislation. But it does not contemplate partnerships between district schools and the charter schools to actually run an individual course. That may be a good decision — management of a hybrid course probably belongs in the district school. But some kind of legislation addressing the classroom hours requirement for district schools might be in order to facilitate mixed online virtual/classroom courses at the district level.
The legislation is still in flux at the committee level. Your comments and thoughts on this issue would be timely and much appreciated!
ANNOTATED TEXT OF HOUSE 1090
FOR DISCUSSION, JUNE 13, 2011
By Ms. Marty Walz of Boston, petition (accompanied by bill, House, No. 01090) of William N. Brownsberger and Marty Walz relative to the definition of virtual charter schools using the Internet for on-line educational course instructions from remote locations. Joint Committee on Education.
Words below in Bold or italicized text are annotations.
Chapter 71 of the General Laws is hereby amended by inserting after section 89 the following section:-
(a) As used in this section the following words shall, unless the context clearly requires otherwise, have the following meanings:–
“Board”, the board of elementary and secondary education.
“Commissioner”, the commissioner of elementary and secondary education.
“Department”, the department of elementary and secondary education.
“District”, or “school district”, the school department of a city, town, regional school district, or county agricultural school.
“Online course”, a course or grade-level instruction that is delivered by an online provider primarily electronically using the Internet or other computer-based methods and is taught by a teacher primarily from a remote location, with student access to the teacher given synchronously, asynchronously or both; an online course may be delivered to students at school as part of the regularly scheduled school day.
Does not explicitly allow a fully hybrid course delivery.
“Virtual charter school”, a public school operated by an online provider whose teachers teach primarily from a remote location using the Internet or other computer-based methods, with students not required to be located at a physical premises of the school.
Does not explicitly allow a hybrid program.
(b) The purposes of establishing virtual charter schools include all of the purposes contained in subsection (b), section 89, and the following: (i) to provide students with a flexible schedule; (ii) to differentiate the delivery of curriculum and instruction to students; (iii) to meet instructional needs in a cost-effective way; (iv) to provide opportunities for students who need expanded access to courses in order to meet their educational goals, such as students in urban and rural high schools who do not have access to higher level courses; and (v) to provide instruction to students who may not be able to attend traditional public schools.
Note — this section should probably refer to subsection (d) of Chapter 89 which reads as follows:
(d) The purposes for establishing charter schools are: (1) to stimulate the development of innovative programs within public education; (2) to provide opportunities for innovative learning and assessments; (3) to provide parents and students with greater options in choosing schools within and outside their school districts; (4) to provide teachers with a vehicle for establishing schools with alternative, innovative methods of educational instruction and school structure and management; (5) to encourage performance-based educational programs; (6) to hold teachers and school administrators accountable for students’ educational outcomes; and (7) to provide models for replication in other public schools.
(c) A virtual charter school shall be a public school, operated under a charter granted by
the board, which operates independently of a school committee and is managed by a board of trustees. The board of trustees of a virtual charter school, upon receiving a charter from the board, shall be deemed to be public agents authorized by the commonwealth to supervise and control the virtual charter school.
WHO MAY FORM A CHARTER SCHOOL
(d) Persons or entities eligible to submit an application to establish a virtual charter school shall include, but not be limited to: (i) a non-profit business or corporate entity; (ii) 2 or more certified teachers; or (iii) 10 or more parents; provided, however, that for profit business or corporate entities shall be prohibited from applying for a charter. The application may be filed in conjunction with a college, university, museum or other similar non-profit entity. Private and parochial schools shall not be eligible for virtual charter school status. The board may authorize a single board of trustees to manage more than 1 virtual charter school; provided, however, that each school is issued its own charter.
Note that may contract with a for-profit.
APPLICATION CRITERIA FOR CHARTER PROPOSALS
(e) The board shall establish the information needed in an application for the approval of a virtual charter school; provided that the application shall include, but not be limited to, a description of:
(i) the mission, purpose, innovation and specialized focus of the proposed virtual charter school;
(ii) the innovative methods to be used in the virtual charter school;
(iii) the organization of the school by ages of students or grades to be taught and an estimate of the total enrollment of the school;
(iv) the method for and timetable of admission to the virtual charter school;
(v) the educational program, instructional methodology and services to be offered to students;
(vi) the school’s capacity to address the particular needs of limited English-proficient students to learn English and learn content matter, including the employment of staff that meets the criteria established by the department;
(vii) how the school shall involve parents as partners in the education of their children;
(viii) the school governance and by-laws;
(ix) a proposed arrangement or contract with an organization that shall manage or operate the school, including any proposed or agreed upon payments to such organization;
(x) the identity of any third party software or curriculum vendors that the school intends to use;
These two sections provisions allow any for-profit vendor to be used to operate the school.
(xi) the financial plan for the operation of the school;
(xii) methods to assure that all students will have access to necessary technology and materials;
(xiii) the number and qualifications of teachers and administrators to be employed, including the number and qualifications of teachers or administrators to be employed who are not licensed in Massachusetts;
(xiv) the procedures for evaluation and professional development for teachers and administrators;
(xv) a statement of equal educational opportunity which shall state that virtual charter schools shall be open to all students, on a space available basis, and shall not discriminate on the basis of race, color, national origin, creed, sex, ethnicity, sexual orientation, mental or physical disability, age, ancestry, athletic performance, special need, or proficiency in the English language;
(xvi) plans for disseminating successes and innovations of the virtual charter school to other non-charter public schools;
(xvii) whether the virtual charter school will offer online courses to students attending other schools, and, if so, how the virtual charter school will work with the sending district or school to determine whether the online courses meet said district’s or school’s standards and requirements and what the virtual charter school will charge for online courses;
(xviii) the expectations for teacher-student communication;
(xix) how the school will administer state required assessment tests;
(xx) how the school will define and monitor a student’s participation;
(xxi) what, if any, on-site activities, learning, or interaction will be provided or offered; and
(xxii) the proposed school year.
PROCEDURE FOR REVIEW
(f) An application submitted for the establishment of a virtual charter school shall: (i) be submitted to the board for approval under this section and (ii) be made available to the public. All information submitted to the board by a virtual charter school applicant shall be immediately made available by the board to members of the public without a request pursuant to section 10 of chapter 66. Before final approval to establish a virtual charter school, the board shall hold a public hearing on the application at an appropriate location determined by the department. At least 1 member of the board shall attend the public hearing. A comprehensive written summary of all materials prepared by the department or its administrative subdivisions regarding a virtual charter application shall be delivered to the members of the board and the applicant not later than 10 working days before any board vote on the charter application. Any report prepared by the department or its administrative subdivisions regarding a charter application shall be delivered to the members of the board and the applicant within 10 days of the completion of said report.
All material in support of, or in opposition to, the school submitted to the department or the board shall be made available to the applicant and to the public at least 10 working days before a vote by the board on a virtual charter school application. There shall be a 10 working day freeze on any new material to be made available to the board prior to the day of the board vote on a virtual charter school application.
CAP ON VIRTUAL CHARTERS (SEPARATE FROM REGULAR CHARTER CAP)
(g) Not more than 5 virtual charter schools shall be allowed to operate in the commonwealth at any time. The 5 virtual charter schools shall not count towards the number of charter schools allowed under subsection (i) of section 89. Applications to establish a virtual charter school shall be submitted to the board annually by November 15. The board shall review the applications and grant new charters in February of the following year.
PROCEDURE FOR APPROVAL
(h) The board shall make the final determination on granting virtual charter school status and may condition charters on the applicant’s taking certain actions or maintaining certain conditions. The board shall create and use a rubric for the approval of a virtual charter school application. The board shall publicly review each virtual charter school application against the rubric at each stage in the application process.
If a final application is deemed inadequate by the department, the department may provide feedback to the applicant and invite it to submit a stronger application subsequently. Once a final application has been filed, only minor, non-substantive amendments shall be allowed. The department shall maintain a written detailed summary of interviews it conducts with final virtual charter applicants and include that summary with the final application materials that are provided to the board and the public.
POWERS OF A VIRTUAL CHARTER SCHOOL ONCE CONSTITUTED
(i) A virtual charter school established under a charter granted by the board shall be a body politic and corporate with all powers necessary or desirable for carrying out its virtual charter program, including, but not limited to, the power to:
(1) adopt a name and corporate seal; provided that any name selected must include the words “virtual charter school”;
(2) sue and be sued, but only to the same extent and upon the same conditions that a municipality can be sued;
(3) acquire real property, from public or private sources, by lease, lease with an option to purchase or by gift, for use as a school facility;
(4) receive and disburse funds for school purposes;
(5) make contracts and leases for the procurement of services, equipment and supplies; provided, however, that if the virtual charter school intends to procure substantially all educational services under contract with another person, the terms of such a contract must be approved by the board either as part of the original charter or by way of an amendment thereto; provided, further that the board shall not approve any such contract terms, the purpose or effect of which is to avoid the prohibition of this section against charter school status for private and parochial schools; and provided further, that a virtual charter school shall not be subject to chapter 30B for the purpose of contracting with another person that shall manage or operate the school;
Board can approve the main third party operating contract.
(6) incur temporary debt in anticipation of receipt of funds; provided that, notwithstanding any general or special law to the contrary, the terms of repayment of any virtual charter school’s debt shall not exceed the duration of the school’s charter without the approval of the board;
(7) solicit and accept grants or gifts for school purposes; and
(8) have such other powers available to a business corporation formed under chapter 156B that are not inconsistent with this chapter.
SHARING OF DEVELOPMENTS WITH PUBLIC SCHOOLS
(j) Virtual charter schools shall not charge a public school for the use or replication of a part of their curriculum subject to the prescriptions of a contract between the virtual charter schools and any third party providers, provided, however, that virtual charter schools may offer online courses to students enrolled in other public schools and charge tuition for such courses.
Must give curriculum developed by school itself away; copy protection for contractor.
OPEN ADMISSION AND LOTTERY (No ability targeting)
(k) Virtual charter schools shall be open to all students, on a space available basis, and shall not discriminate on the basis of race, color, national origin, creed, sex, ethnicity, sexual orientation, mental or physical disability, age, ancestry, athletic performance, special need, or proficiency in the English language or a foreign language. Virtual charter schools may limit enrollment to specific grade levels and may structure curriculum around particular areas of focus such as mathematics, science or the arts. There shall be no application fee for admission to a virtual charter school. There shall be no tuition charge for students attending virtual charter schools, except as provided in subsection (j).
(l) If the total number of students who are eligible to attend and apply to a virtual charter school and who are siblings of students already attending said virtual charter school is greater than the number of spaces available, an admissions lottery, including all eligible students applying, shall be held to fill all of the spaces in that school from among the students. When a student stops attending a virtual charter school for any reason, the virtual charter school shall fill the vacancy with the next available student on the waitlist for the grade in which the vacancy occurs and shall continue through the waitlist until a student fills the vacant seat. Within 30 days of a vacancy being filled, the virtual charter school shall send the name of the student filling such vacancy to the department for the purposes of the department updating its waitlist.
The names of students who entered the lottery but did not gain admission shall be maintained on a waitlist, which shall be forwarded to the department not later than June 1 in the year in which the lottery is held. In addition to the names of students, the school shall supply to the department each student’s home address, telephone number, grade level and other information the department deems necessary. The department shall maintain a consolidated waitlist for each municipality in order to determine the number of individual students in each municipality seeking admission to virtual charter schools.
RELATIONSHIP WITH DISTRICT SCHOOLS
(m) Each virtual charter school shall annually, not later than July 1, notify each public school district in writing of the number and grade levels of students who will be attending the virtual charter school from that district the following September as well as the number of new students who will be transferring from that district to the virtual charter school in the following September. Tuition for virtual charter school students shall only be paid for the number of students for whom notification has been reported by July 1. Tuition for virtual charter school students shall be paid only for students actually enrolled in the school.
(n) A student may withdraw from a virtual charter school at any time and enroll in another public school where the student resides.
A student may be expelled from a virtual charter school based on criteria determined by the board of trustees, and approved by the board, with the advice of the principal and teachers; provided, however, that virtual charter school policies shall be consistent with sections 37H and 37H1/2.
APPLICABILITY OF BASIC SCHOOL REGULATIONS
(o) A virtual charter school shall operate in accordance with its charter and the provisions of law regulating other public schools; provided, however, that sections 41 (tenure) and 42 (dismissal/demotion procedures)shall not apply to employees of virtual charter schools, and provided, further, that section 1G of chapter 69 (length of school day) shall not apply to virtual charter schools. Virtual charter schools shall comply with chapters 71A and 71B (ELL and SPED); provided, however, that the fiscal responsibility of a special needs student currently enrolled in or determined to require a private day or residential school shall remain with the school district where the student resides. If a virtual charter school expects that a special needs student currently enrolled in the virtual charter school may be in need of the services of a private day or residential school, it shall convene an individual education plan team meeting for the student. Notice of the team meeting shall be provided to the special education department of the school district in which the child resides at least 5 days in advance. Personnel from the school district in which the child resides shall be allowed to participate in the team meeting concerning future placement of the child.
APPLICABILITY OF STATE CONFLICT OF INTEREST RULES
(p) Notwithstanding this section or any other general or special law to the contrary, for the purposes of chapter 268A: (i) a virtual charter school shall be deemed to be a state agency; and (ii) the appointing official of a member of the board of trustees of a virtual charter school shall be deemed to be the commissioner. Members of boards of trustees of virtual charter schools operating under this section shall file a disclosure annually with the state ethics commission and the department. The disclosure is in addition to the requirements of said chapter 268A and a member of a board of trustees must also comply with the disclosure and other requirements of said chapter 268A. The form of the disclosure shall be prescribed by the ethics commission and shall be signed under penalty of perjury. Such form shall be limited to a statement in which members of the board of trustees shall disclose any financial interest that they or a member of their immediate families, as defined in section 1 of said chapter 268A, have in any virtual charter school located in the commonwealth or in another state or with a person doing business with a virtual charter school.
Each member of a board of trustees of a virtual charter school shall file such disclosure for the preceding calendar year with the commission within 30 days of becoming a member of the board of trustees, by September 1 of each year thereafter that the person is a member of the board and by September 1 of the year after the person ceases to be a member of the board; provided, however, that no member of a board of trustees shall be required to file a disclosure for the year in which he ceases to be a member of the board if he served less than 30 days in that year.
MCAS AND CURRICULUM REQUIREMENTS APPLY
(q) Students in virtual charter schools shall be required to meet the same performance standards, testing and portfolio requirements set by the board for students in other public schools.
GOVERNANCE, PENSIONS, UNIONIZATION, ETC.
(r) The board of trustees, in consultation with the teachers, shall determine the school’s curriculum and develop the school’s annual budget.
(s) Employees of virtual charter schools shall be considered public employees for purposes of tort liability under chapter 258 and for collective bargaining purposes under chapter 150E. The board of trustees shall be considered the public employer for purposes of tort liability under said chapter 258 and for collective bargaining purposes under said chapter 150E. Teachers employed by a virtual charter school shall be subject to the state teacher retirement system under chapter 32 and service in a virtual charter school shall be creditable service within the meaning thereof.
A virtual charter school shall recognize an employee organization designated by the authorization cards of 50 per cent of its employees in the appropriate bargaining unit as the exclusive representative of all the employees in such unit for the purpose of collective bargaining.
(t) Each local school district shall be required to grant a leave of absence to any teacher in the public schools system requesting such leave to teach in a virtual charter school. A teacher may request a leave of absence for up to 2 years.
At the end of the second year, the teacher may either return to his former teaching position or, if he chooses to continue teaching at the virtual charter school, resign from his school district position.
(u) Notwithstanding section 59C, the internal form of governance of a virtual charter school shall be determined by the school’s charter.
(v) A virtual charter school shall comply with all applicable state and federal health and safety laws and regulations.
CHARTER REVIEW AND REVOCATION
(w) A virtual charter granted by the board shall be for 5 years. The board shall develop procedures and guidelines for revocation and renewal of a school’s charter.
When deciding on charter renewal, the board shall consider progress made in student academic achievement and whether the school has met its obligations and commitments under the charter. When deciding on charter renewal, the board shall take into account the annual attrition of students, teachers, and administrators.
(x) The board may revoke a school’s charter if the school has not fulfilled any conditions imposed by the board in connection with the grant of the charter or the school has violated any provision of its charter. The board may place conditions on a charter or may place a virtual charter school on a probationary status to allow the implementation of a remedial plan after which, if said plan is unsuccessful, the charter may be summarily revoked.
FUNDING FORMULA — CHOICE PLUS SPED ADJUSTMENT
(y) Virtual charter schools shall be funded pursuant to the school choice formula as described in section 12B of chapter 76, provided, however, that for special education students the tuition amount shall remain the expense per student for such type of education as is required by such non-resident student.
If more than 1 virtual charter school is managed by a single network or board of trustees, funding shall not be transferred among individual schools within the network.
RETURN OF EXCESS CAPITAL
(z) If the unencumbered amount of cumulative surplus revenue from tuition held by a virtual charter school at the end of a fiscal year, less (i) the amount of the fourth quarter tuition payment and (ii) any reserve funds held as security for bank loans, exceeds 20 per cent of its operating budget, the amount in excess of said 20 per cent shall be returned by the virtual charter school to the sending district or districts and the state in proportion to their share of tuition paid during the fiscal year. At the end of each fiscal year, the commissioner shall certify the amounts described above and the amount, if any, by which it exceeds 20 per cent of the school’s operating budget, and shall report such amount to the school committee of the sending district or districts and the applicable board of selectmen or city council by December 1 of each year. A virtual charter school shall annually make any payment required by this subsection no later than December 31.
REPORTING AND DATA COLLECTION
(aa) Each virtual charter school shall submit an annual report, no later than August 1, to the board, each parent or guardian of its enrolled students and each parent or guardian contemplating enrollment in that virtual charter school. The annual report shall be in such form as may be prescribed by the board and shall include, but not be limited to: (i) discussion of progress made toward the achievement of the goals set forth in the charter; (ii) an accounting of how many students were designated as requiring special education services or English language services by language proficiency level as measured by the Massachusetts English Proficiency Assessment examination or its successor upon enrollment and how many of these students were subsequently no longer designated as such, along with a description of methods used by the school to achieve these outcomes and the rationale behind the methodologies used; (iii) the number of students, teachers, and administrators who have left the virtual charter school and their reasons for leaving; (iv) the number of students enrolled in the virtual charter school eligible for free lunch as defined in section 2 of chapter 70; (v) the number of students enrolled in the virtual charter school eligible for reduced price lunch as defined in section 2 of chapter 70; (vi) the number of homeless students enrolled in the virtual charter school; (vii) the number of students in the care of the Department of Youth Services enrolled in the charter school; and (viii) a financial statement setting forth by appropriate categories the revenue and expenditures for the year just ended and a balance sheet setting forth the virtual charter school’s assets, liabilities and fund balances or equities.
The department shall promulgate regulations creating a reporting requirement for a virtual charter school’s net asset balance at the end of the fiscal year; provided, however, that said regulations shall require, without limitation, the following: the revenue and expenditures for the year just ended with a specific accounting of the uses of public and private dollars; compensation and benefits for teachers, staff, administrators, executives, and board of trustees; the amount of any and all funds transferred to a management company; the sources of any surplus funds, specifically whether they are private or public; how any surplus funds were used in the previous fiscal year; and the planned use of any surplus funds in the upcoming fiscal year and in future fiscal years.
Each virtual charter school shall keep an accurate account of all its activities and all its receipts and expenditures and shall annually cause an independent audit to be made of its accounts. Such audit shall be filed annually on or before January 1 with the department and the state auditor and shall be in a form prescribed by the state auditor. The state auditor may investigate the budget and finances of virtual charter schools and their financial dealings, transactions and relationships, and shall have the power to examine the records of virtual charter schools and to prescribe methods of accounting and the rendering of periodic reports.
(bb) The commissioner shall collect data on the racial, ethnic and socio-economic make-up of the student enrollment of each virtual charter school. The commissioner shall also collect data on the number of students enrolled in each virtual charter school who have individual education plans pursuant to chapter 71B and those requiring English language learners programs under chapter 71A. The commissioner shall file said data annually with the clerks of the house and senate and the joint committee on education not later than December 1.
(cc) Individuals or groups may complain to a virtual charter school’s board of trustees concerning any claimed violations of the provisions of this section by the school. If, after presenting their complaint to the trustees, the individuals or groups believe their complaint has not been adequately addressed, they may submit their complaint to the board which shall investigate such complaint and make a formal response.
AUTHORITY OF BESE TO REGULATE
(dd) The board shall promulgate regulations for implementation and enforcement of this section.