Disputes emerge over new SUNY charter school regulatory authority

On Board Online • September 5, 2016

By Julie Marlette
Director of Governmental Relations

Legislative leaders disagree about how much authority to regulate charter schools they intended to give to the State University of New York (SUNY) in action at the end of the 2016 legislative session.

Language was adopted by both the Assembly and Senate that authorizes the SUNY Trustees' charter school committee to "promulgate regulations with respect to the governance, structure and operations of charter schools" that are authorized by the SUNY Board of Trustees. Now officials are debating exactly what that means.

Prior to enactment of this law, all charter schools were governed by Article 56 of the Education Law and Commissioner of Education regulations. This vaguely written new law appears to authorize a separate set of regulations that would govern SUNY authorized charter schools. The issue in dispute is what SUNY is actually authorized to do.

Majority Leader of the Senate, John Flanagan (R-Suffolk) sent a letter to Gov. Andrew Cuomo saying that "the intent of this language was to provide SUNY with statutory authority to exempt charter schools from rules and regulations that were hampering innovative teaching and learning."

Flanagan's letter requests that SUNY seek to provide flexibility for charter schools regarding teacher certification, adopt regulations that would allow charters to participate in the universal full-day pre-kindergarten program in a meaningful way, and determine what constitutes adequate space for charter schools and review how space is allocated when charter schools co-locate with a public school. This letter was sent three days after the bill passed the Legislature and was only recently released to the public.

But Assembly Speaker Carl Heastie (D-Bronx) sees the law differently. He wrote that the Assembly did not "intend to empower SUNY to adopt regulations that are inconsistent with current laws governing charter schools including, but not limited to, laws related to teacher certification requirements, participation in pre-kindergarten programs, and co-location of charter schools within traditional public schools."

SUNY has yet to use its new authority. Shortly after the law passed, the chair of the SUNY charter school committee told The New York Times: "I don't think it can reasonably be read to give us the authority to do things that would be contrary to other existing laws." However, he indicated that the language could give the charter school committee authority to take action on teacher certification in certain circumstances. When Gov. Cuomo was asked about Heastie's letter, he said, "(the) law we passed was straight forward."

Once SUNY acts, it may be up to the courts to decide just how much authority the new law actually gives them. Historically, courts have not upheld changes unless they involve amendments to the state's Charter School Act. Rather, the courts have held that charter schools are created and governed by that act and therefore all changes in their state-level governance must be incorporated into that article of law.

"NYSSBA will be monitoring developments," said Timothy G. Kremer, NYSSBA's executive director. "Depending on how SUNY attempts to use this new authority, there could be effects on school district operations."

She noted that NYSSBA's 2015 delegates at the Annual Business Meeting adopted a position calling for districts to be given the same exemptions from state law and regulations as public charter schools.