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Public charter schools get equal transportation funding, Md. high court says



Maryland’s public charter schools are entitled to the same level of transportation funding that public non-charter school students receive in the same county, a divided Maryland high court has held. The requirement for commensurate funding applies even if the charter school does not provide transportation for its students, the Court of Appeals said in its 5-2 decision Friday.

The requirement for level-funding is in keeping with the statutory purpose and legislative history of the 2003 Maryland law that established the charter school program, the court said. The General Assembly intended charter schools to be “semi-autonomous and provide “innovative, creative and more effective teaching programs” for students but also receive funding on a par with other public schools, Judge Joseph M. Getty wrote for the majority.

“A charter school may well elect to use funding that a local school board devotes to transportation, or other specific services, to fund an additional teacher in a specialty area, or provide a new classroom program, or offer more afterschool services, or in a variety of other innovative ways that could improve the education of charter school students,” Getty added in the 97-page majority opinion. “And, parents who choose to send their children to a charter school may well prefer that the school devote more funding to those other services that benefit their children, leaving transportation of children to and from the school to the parents.”

The Court of Appeals rendered its decision in holding that the State Board of Education erroneously approved the Frederick County School Board’s allocation of transportation funds to non-charter public schools without providing similar funding to the Frederick Classical Charter School.

The high court faulted the state board for essentially rubberstamping the county school board’s numbers without making an “independent judgment” on the failure to include transportation funds for the private school.

In dissent, Judge Shirley M. Watts said the court should have deferred to the state board’s interpretation of the Public Charter School Act, a statute the board is authorized to administer and which does not address funding for services that a charter school does not provide, such as transportation.

“In this case, the SBE was not only construing a state statue … and the allocation of money to a public charter school, as well as Frederick Classical’s charter and the SBE’s prior opinions, but was also construing and analyzing FCPS’s (Frederick County Public Schools’) funding formula or policy,” Watts wrote in her 28-page dissent that Judge Michele D. Hotten joined.

“In other words, this case involves not only matters of educational policy, the SBE’s interpretation of a statute that it administers, and the proper administration of the public school system in Maryland – all matters that are uniquely within the SBE’s purview – but also matters of FCPS’s policy,” Watts added. “As (the law) provides, a charter school must receive ‘commensurate’ funding, and does not address providing funding for services a charter school does not provide. A charter school that does not provide transportation for its students is not entitled to funds for transportation simply by virtue of the circumstance that other schools in the system do, in fact, receive funds for transportation that the schools provide.”

Frederick Classical challenged the county school board’s refusal to give in its fiscal year 2014 budget transportation funding for the charter school, while providing $544.26 per pupil to other students in the county. Had the board provided equivalent funding, the charter school would have received an additional $136,000 that year, according to court documents.

The charter school appealed the board’s refusal to the state school board, the Frederick County Circuit Court and the intermediate Court of Special Appeals, which all agreed with the county.

But the charter school found ultimate success at the Court of Appeals.

Andrew W. Nussbaum, the Frederick County school board’s attorney, declined to comment on the court’s decision beyond saying he is reviewing it. Nussbaum is a Clarksville solo practitioner.

F. William “Will” DuBois, the charter school’s lawyer, also declined to comment. DuBois a partner with Venable LLP in Baltimore.

Getty was joined in the majority opinion by Chief Judge Mary Ellen Barbera and Judges Clayton Greene Jr., Sally D. Adkins and Robert N. McDonald.

The high court issued its decision in Frederick Classical Charter School Inc. v. Frederick County Board of Education, No. 25 September Term 2016.

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