Mississippi’s New Charter School Law

As a follow up to our article on school choice expansion in the South, we decided to analyze the latest charter law to hit the books in Mississippi. This law is a revised form of what was fought over last session, and the timing is perfect considering that 2012-13 was the school year that Mississippi lawmakers had intended on converting failing schools to charters anyway under the 2010 agreement. Although 35 schools were eligible for conversion, none took advantage of it. The new law hopes to broaden opportunities beyond failing conversions, and goes into effect on July 1, 2013.

The new law allows up to 15 start-ups a year under the only authorizer in the state: the Mississippi Charter School Authorizer Board. In low-performing Districts (those rated ‘D’ or ‘F’), these schools can launch without local school board approval, but local districts will have veto power over start-ups in A, B and C districts. One of the proponents of this new law, Lt. Gov. Tate Reeves, feels that once charter schools prove themselves, the A, B, and C-rated districts will welcome start-up applicants as well, but for now Mississippi’s law clearly directs charter schools toward the lowest performing communities.

The MCSAB consists of a panel of seven board members. Three are appointed by the Governor, and they each represent one of the state’s three supreme court districts. The members appointed by the Governor have an initial term of four years, then can be re-elected to successive three year terms. The Lt. Gov also appoints three board members from each of the supreme court districts, and those terms are for three years (initial and successive). Finally, the State Superintendent also appoints a board member to an initial term of two years and successive terms of three years. Appointments are due by September 1, 2013, after which they elect their own board chair. Vacancies are filled by the original appointing body.

It is interesting here to note how much power is given to the state’s executive branch in choosing the composition of the MCSAB. Given the pro-choice rhetoric coming from the Governor and his Lt. Gov., we can expect a favorable environment for charter schools in Mississippi as long as this statewide authorization board is in place. A worst case scenario in Mississippi might resemble what happened in Georgia a couple of years ago, when the statewide authorizer was bogged down by seven school systems and eventually shut down by the supreme court in a narrow vote. That commission has since been restored, and Georgia is back on track thanks to the passage of Amendment 1 in November 2012.

Mississippi’s statewide authorizer is entitled to a 3% annual fee of each charter school’s per-pupil funding. This is natural (Florida and Oklahoma can be as high as 5%), and is intended to cover administrative costs associated with authorization. MCSAB grants initial charter contracts of five years, and renewal contracts match that term. The initial contract can be delayed one year if preparations of the school itself are running behind, but any delay longer than one school year requires a written appeal. Importantly, renewals cannot be issued to charter schools possessing an ‘F’ score in their last year under contract. This means that a charter school could be rated an ‘A’ for four straight years, but if it dropped to an ‘F’ in year five it gets shut down. However unlikely such a scenario might be, it is still interesting that the law is worded that way since most laws include language related to consecutive ‘F’-rated years (i.e., a school gets shut down before its initial contract expires if it experiences three straight years of under-performance, rather than having to wait a full contract term to shut down a persistently under-performing school).

Another curious part of the law is the language associated with enrollment boundaries. Charter schools authorized by a statewide authorizer are considered their own Local Educational Agency (LEA). As an independent LEA, the school is not considered part of the local District, and is therefore exempt from most District regulations. In Mississippi, charter schools are now exempt from almost every restrictive guideline except one: charter schools students must live within the boundary of the District that the charter school calls home (Section 23.3). The required student composition of charter schools is also tied to the District – the percentage of underserved (FRL or at-risk) students at a charter school must be at least 80% of the enrollment percentage of all ages at the District level. In other words, if a particularly poor District had an FRL rate of 100%, any charter school located within that District’s boarders would have to maintain at least an 80% FRL rate among its students. If not, an investigation would take place in an effort to verify that unfair or discriminatory marketing policies were not taking place. Still, considering that charter schools in many states have (on average) higher FRL rates than local District schools, this law is more of a safeguard than it is a worrisome issue.

At the school level, we see a lot of autonomy in Mississippi’s law. Despite the enrollment restrictions mentioned above (which limits choice to only those kids within arbitrary boundaries, and ignores kids outside of them), charter schools are still their own LEA, meaning that a lot of the bureaucratic nonsense that goes on at the District level is avoided. For instance, charter school employees are not required to participate in Mississippi’s Public Employees Retirement System, which would dramatically limit charter school budgets. Charter school employees are also not required to observe the tedious Education Employment Procedures Law and charter school boards are not subject to state salary requirements. This means that charter schools have much more flexibility in matters of personnel, which can make or break a charter school budget. Charter schools are also freed from the limits of certification – up to 25% of the teachers in a charter school can be exempt from state licensure requirements (100% of charter administration is exempt). This allows recent and qualified graduates (who might actually have a Master’s degree in something other than education) to teach in the charter school while working on an alternative certification, which is required at the end of three years.

There are also plenty of things from which charter schools are not exempt, and they are the obvious things associated with open and public meetings, access to records, financial and academic transparency, etc. The list is long and can be found in Section 23.6. One thing not on that list is talk of enrollment preference. Charter school enrollment is done on a first-come/first-served basis unless the number of applications exceeds the number of seats available, in which case there is a lottery (always random, usually electronic) to determine who gets in. Enrollment preferences supersede this process, and the number of available seats therefore diminishes relative to how many kids are “automatically” enrolled next year. Some laws allow siblings of currently enrolled students first refusal, as well as the children of board members and employees. Indeed, Mississippi allows these enrollment preferences as well, as long as the number of board and employee children does not exceed 10% of total enrollment.

One item that we were particularly glad to see was the specification that charter school boards would have the right to first refusal to purchase or lease closed or unused public school property at or below fair market value. This is a critical element that all states should incorporate in their laws as well, since it represents a win/win for all parties involved: the charter board gets building that is already zoned for a school and possesses all the amenities needed to house children, while the District can make a lot of money by selling useless land that might otherwise just sit there, either falling apart or requiring expensive maintenance. Unfortunately, local Districts frequently sit on land with either the intent to use it later or simply keep a nice plot out of the hands of their competition.

Finally, the most original part of the law pertained to the charter application process itself. MCSAB has to issue a pamphlet by July 1 each year with any changes to the current law that are applicable to charter schools. “Requests for proposals” (basically a call for applicants) are issued by Sept 1 each year, but Dec 1 for 2013. That document’s details are in Section 8 of the law. Approvals or denials must occur within 180 days of filing, and it appears as if MCSAB can do conditional approvals in the event of an overall good application with a few things missing.

The original part here is that, according to Mississippi’s law, historically black college partnerships get expedited approval. If a traditionally African-American college or university (HBCU) partners with a national African-American college or university support organization, their application will be approved or denied before anyone else’s. Seven primary institutions will qualify for this: Alcorn State University, Coahoma Community College, Hinds Community College at Utica, Jackson State University, Mississippi Valley State University, Rust College, Tougaloo College.

As commendable as it is, we don’t really understand why this was added. With a favorable board authorizing charter schools statewide, there is almost no need to worry about the approval or denial period, since there will be no reason to suspect that MCSAB would intentionally delay the process. The 180 day process stated in the law appears to be reliable, unlike in some other states where either local boards of education or the state’s BOE are responsible for authorization, and are intentionally deleterious.

Overall, Mississippi’s law is a huge step for the state, and we only have two criticisms of it.

First, the annual 15-school cap will have to be lifted eventually. It’s a good idea for the first year, and perhaps even the first few years, but once charter schools catch on in Mississippi it will be hard to decide which 15 of many applicants deserve the chance to fill a much needed performance void. Just look at North Carolina, which lifted its cap in 2011 and suddenly got a flood of interest, primarily from experienced operators who were previously deterred by the cap.

This brings us to our second criticism, which is the exclusion of experienced for-profit operators. Mississippi’s law states that “a charter school and any educational service provider which provides comprehensive management for a charter school must be a nonprofit education organization.” That single sentence bars charter schools in Mississippi from seeking the assistance of EMOs with a track record of success and huge amounts of capital to bring to the table. Charter school boards in Mississippi should ask themselves this: do you want a non-profit operator to manage all aspects of the school, but in a small, cramped, dilapidated building that you’re leasing from a greedy landlord, or do you want a for-profit operator to manage all the same aspects of the school, but in a brand new, state-of-the-art building that is owned by friendly parties?

It seems that every time the issue of for-profit managers comes up in a legislative session, people rise up in arms against the idea without understanding just how much a for-profit operator can bring to the table. Mississippi law even states in Section 8.6b that the educational service providers are allowed whatever fees they wish to charge as long as it is recorded in the proper term sheets. The only limitation is that the entity to which the charter board is paying fees cannot be for-profit, even if the fee is lower than what a non-profit operator would take.

Still, Mississippi might try to change that portion of the law later, similar to the way Tennessee’s House recently modified their 2009 law to allow for-profit operators in, primarily because nobody else has the firepower to handle the Memphis Issue. Tennessee’s fate remains to be seen in the long run, but what we’re hearing from people on the ground there is that the closing session was riotous and the revisions to the bill failed.

Careful, Tennessee – Mississippi just might pass you on education reform.

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