CHARTER SCHOOL ALERT
On November 23, 2011, Pennsylvania’s Supreme Court ruled that, while a charter school has authority to set its own entrance age for kindergarten, a school district does not have the duty to fund the charter school’s kindergarten program if the charter school’s policy is not consistent with the school district’s. Slippery Rock Area Sch. Dist. V. Pennsylvania Cyber Charter Sch., J-22-2011 (Pa. Sup. Ct. Nov, 23, 2011).
The court considered an appeal by the Slippery Rock Area School District (School District) in connection with the determination by the Department of Education to withhold $1,716.63 from the School District’s state subsidy because the School District failed to pay the Pennsylvania Cyber Charter School (Charter School) for a four year-old student enrolled in the Charter School’s kindergarten program. The School District’s kindergarten policy allowed for the education of five year-old children and, consequently, the School District asserted that it had no obligation to fund the Charter School for the schooling of the four year-old child. Both an administrative ruling by the Department of Education and a lower court decision held that the Charter School was entitled to payment from the School District. The Supreme Court reversed those decisions.
The Supreme Court’s analysis focused on the interplay between Pennsylvania’s Public School Code of 1949 (PSC) and the Charter School Law of 1997 (CSL). The PSC requires school districts to “educate every person, residing in the district, between the ages of six and twenty-one years.”[1] Further, the PSC states that: “The board of school directors may establish and maintain kindergartens for children between the ages of four and six years.”[2] As such, the Supreme Court noted at the outset that the School District’s policy of educating five year-olds was discretionary and not required by law. Reviewing the CSL, the Supreme Court found that “cyber charter schools have the ability to set the grade or age level served by the school, while the school and its board of trustees have the authority to implement and enforce the specified policy.”[3] The Charter School acted within its authority to set its kindergarten enrollment age at four years.
The Supreme Court then reviewed a provision of the Pennsylvania Administrative Code that addressed the offering of kindergarten programs in Pennsylvania and interpreted the provision to provide school districts with the exclusive authority to set the minimum entry age for kindergarten for the entire school district.[4]
Finding that the “plain meaning of the applicable statutes and regulations reveals that the General Assembly granted both Cyber School and Slippery Rock the ability to set the enrollment age for a kindergarten program,” the Supreme Court then addressed the General Assembly’s “gap when it failed to articulate whether it is a cyber charter school’s or a school district’s policy that prevails in the event of a conflict regarding funding. When faced with such a conflict, we hold that the cyber charter school is bound by the policy of the school district in which the student resides.” In the case under review, since a four year-old resident of the School District may not attend public school, the School District does not have to pay for the child’s enrollment in the Charter School’s kindergarten program.
The Supreme Court was careful to note that its decision “does not limit the autonomy of the Charter School or contradict the intent behind the CSL.” The Charter School may still set the age of its students and allow four year-old children to attend kindergarten, “but it does so at its own cost if the student’s home district has set a different entrance age.” The reality, of course, is that by withholding funding to charter schools where the charter embraces innovative teaching and expanded educational opportunities by allowing for the education of children that are under-served by the school district—in this case four year-olds, that the court’s ruling will choke such innovation unless the charter secures funding from other sources.
This Charter School Alert was authored by Eric L. Silberstein, an attorney with Salvo Rogers & Elinski in Blue Bell, PA. Mr. Silberstein, a member of Salvo Rogers & Elinski's Corporate and Real Estate Groups, has practiced law for 20 years and works closely with charter boards and administrators on governance, financing, special education, real estate, charter renewals and other charter matters. Mr. Silberstein is admitted to practice law in Pennsylvania, New York and Connecticut. He can be reached at (215) 653-0110 or esilberstein@salvorogers.com. Salvo Rogers is a boutique law firm started in 1988 that is committed to providing high quality, personal service and cost effectiveness to clients pursuing business transactions, commercial real estate matters, and trusts and estates planning.
Please continue to follow other Pennsylvania charter school news of interest posted on my blog, "PA Charter School Law Forum:" pacharterlawforum.blogspot.com. Your comments and suggestions are welcome.
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