The Department of Public Instruction (DPI) recently put a hold on the planning grant application the Madison school district has submitted on behalf of the Urban League’s proposal for the Madison Preparatory Academy for Young Men charter school. The hold was prompted by DPI’s concern that, as proposed, the school would be unlawful. It would cause the school district to be in violation of federal and state laws requiring equal educational opportunities for boys and girls.
Given DPI’s interpretation of the relevant law, this is not a problem that can be easily remedied. An explanation of the dimensions of the issue requires a tour through some legal thickets, so slogging through the following paragraphs might be a challenge. But the bottom line is that it is hard for me to see how the present contours of the Madison Prep proposal and its projected timeline can both be maintained.
I. No Girls Allowed Just Yet: The Boys-Only Issue
Madison Prep is designed as an all-boys school. There are two levels of issues regarding single-sex schools. The first is whether they can ever be lawful. The ACLU maintains that single-sex schools are inherently discriminatory and unconstitutional and there are no “fixes” possible to remove their unconstitutional status. While the ACLU’s arguments certainly aren’t frivolous, this first level of the gender discrimination issue is not the one that is currently the concern.
The second level of issue addresses not whether but how single-sex schools and programs are offered. Both federal and state law provide that single-gender classes and schools are permissible, so long as equal educational opportunities are available to both sexes. The federal rule is that school districts must provide “substantially equal” programming for both sexes. State law authorizes a single-sex charter school if the sponsoring school board “makes available to the opposite sex, under the same policies and criteria of admission, schools or courses that are comparable to each such school or course.” DPI takes the view that the federal and state requirements are substantively the same.
So, the second level of issues with single-sex schools focuses on whether substantially equal programming is available for both sexes. This is the current area of concern. The issue with Madison Prep isn’t that its single sex per se, it’s that the features that will make it different will only be available for boys, at least initially.
The Urban League stated in its planning grant application for Madison Prep:
[T]here is no doubt that Madison Prep will be unique. Madison Prep will be the only all-male public school option in Dane County when it opens in 2012. Furthermore, the school will be the only IB [International Baccalaureate] school in the city offering the full continuum of the IB Programme at the secondary level. Finally, while MMSD offers after-school activities and care, no school in the district offers a significant amount of additional instructional time through an extended school day and extended school year, as Madison Prep will.
Those very features that the Urban League touts as setting Madison Prep apart strengthen the argument that the proposal is inconsistent with state and federal law because girls are left behind.
The federal and state standards have been no secret. The Urban League has contended that its proposal does not run afoul of these standards because it plans to offer comparable opportunities to girls in a separate school it will establish once the boys-only school gets started.
At a meeting last week with the Urban League and the school district, DPI representatives made it clear that the Urban League’s response was insufficient. DPI’s approach, and the approach of the federal Office of Civil Rights as well, is that the only way that the school district would be in compliance with the state and federal requirements is if, on the same day as Madison Prep opens its doors, another school that offers at one site the same range of unique opportunities (e.g, IB program, extended hours in the school day) is available to district girls on the same basis as Madison Prep is available to district boys. Needless to say, this is a tall order.
So, the Urban League presented to the school district, and the School Board approved for planning grant purposes, a proposal for a charter school that, if adopted as proposed, would place the school district in violation of federal and state law. And it’s the school district that’s on the hook if we proceed with an unlawful proposal – the district is potentially at risk of losing lots of state and federal money. This is certainly not a risk that I am willing to assume.
II. There’s No Turning Back: The Planning Grant Timeline Issue
The planning grant process adds to the challenge of this situation. On behalf of Madison Prep, the school district applied for a DPI planning grant. Planning grants are funded by federal money and are subject to federal rules. These rules provide that the money is available on a one-time basis for a total of thirty-six consecutive months of funding.
Once the funding starts, there is no opportunity for pauses or re-starts or do-overs. An applicant receiving planning grant funds must receive a charter from the sponsoring school district and be prepared to open the charter school by the fall of the following school year, or else the last two years of funding are lost and the applicant becomes ineligible to try for funding a second time. As DPI cautions potential applicants on its website:
If you accept a subgrant and then fail to receive a charter during the planning grant period, you will not be eligible for start-up or implementation funding at any time in the future. If you are unsure about the prospect of receiving a charter and opening your school in a timely manner, you may be better served to continue pre-planning at your own expense and then apply for a [Public Charter Schools Program] grant at a later date.
You only get one shot at a planning grant. If the grant were received, somehow the legal problems would have to be resolved and Madison Prep would have to open its doors by this time next year or the planning grant funding spigot would be turned off for good. But this scenario may be academic, because DPI likely won’t award the planning grant unless it receives written assurance from the school district that the legal problems can and will be fixed. This would require that somehow a school mirroring Madison Prep’s offerings be available for girls in the district by this time next year as well.
III. The Sleeper Issue: A Collective Bargaining Agreement that Cannot Be Amended Even a Teeny, Tiny Bit
If this weren’t enough, there seems to be another legal issue. This is one that has not attracted much attention, but it seems to me to be a serious problem, at least over the short term.
The school district and Madison Teachers Inc (MTI) have a collective bargaining agreement (CBA) that governs terms and conditions of employment for teachers and other represented staff. The plans for Madison Prep call for working conditions and terms of employment for the school’s teachers that differ in significant ways from what the CBA calls for. For example, Madison Prep plans to offer an extended school day and school year and plans to structure its pay for teachers in a different way.
In more normal times, it would be theoretically possible for the school district and MTI to enter into a memorandum of understanding (MOU) by which the parties agree to modify the terms of the CBA in some regards in order to accommodate Madison Prep’s plans.
These are not normal times, however. Under the terms of Act 10, the so-called budget repair bill that eviscerated collective bargaining rights for public employees, any modification to the CBA has the effect of terminating it. So, practically speaking, the CBA cannot be modified or amended prior to its expiration date in June, 2013. An MOU to accommodate Madison Prep’s plans with the terms of the CBA appears at the moment to be out of the question.
There is an alternative approach here, and it’s one that the Urban League has advocated at various times. Madison Prep could be structured as what is called a “non-instrumentality” charter school. This would render the school more independent of the school district. Teachers and staff would be employees of the Urban League rather than the school district and so the terms of the CBA would not apply.
While there are other reasons to be hesitant about non-instrumentality status, a principal risk of this approach is that it too may violate the terms of the CBA. The CBA provides that “instructional duties where the Wisconsin Department of Public Instruction requires that such be performed by a certificated teacher, shall be performed only by ‘teachers.'” “Teachers” is a specifically-defined term in the agreement and refers exclusively to members of the collective bargaining unit represented by MTI.
So, the CBA provides that, absent an MOU to the contrary, all teachers in the school district must be members of MTI. This is the same CBA provision that presented the challenge to the establishment of four-year-old kindergarten classes at community sites in Madison until the issues were resolved through an MOU. The provision could be construed to prohibit a non-instrumentality charter school in the school district.
The issues with the MTI CBA will exist until June 30, 2013, when the CBA expires. Under the provisions of Act 10, the school district and MTI will then be barred from including provisions about terms and conditions of employment in a CBA, so the issue would become moot. If the law changes between now and then and CBAs in their traditional form are once again permitted, there would no longer be an obstacle to entering into a MOU that modified the CBA’s terms for the purposes of accommodating the Madison Prep proposal. This suggests that there would be a benefit in pushing back the proposed starting date for Madison Prep from the 2012-2013 school year to 2013-2014, when the CBA issue will either have disappeared or become more manageable.
I should point out that this CBA discussion represents pretty much my own analysis and so I offer it tentatively. There may certainly be some subtlety or wrinkle that I’ve overlooked. I’m not parroting some sort of MTI talking points. As far as I know, MTI has not been actively throwing up roadblocks to the establishment of Madison Prep.
To sum up, things aren’t looking very good for the Madison Prep planning grant right now. The school district cannot endorse the current Madison Prep proposal without opening itself up to potentially big-time liability for operating in violation of state and federal law. Short of the Urban League abandoning the boy’s-only feature of Madison Prep, there is no simple solution to this dilemma. If money were no object, the single-sex legal issue might be addressed by providing the same opportunities in a different setting to girls. But I don’t see any realistic possibility of developing such a plan within the rigid timelines that the pending planning grant application calls for, setting aside entirely the issue of whether such a doubling-down approach would be prudent. What’s more, sticking with the current timeline also presents a potentially intractable issue growing out of the inconsistency between Madison Prep’s plans and the terms of the school district’s collective bargaining agreement with MTI.
I can’t identify the full range of viable options that might be available right now. But I’m pretty sure that considering the legal issues a minor bump in the road and charging full-steam ahead is not among them.