Over the past several years we have become accustomed to hearing that "Charter schools are public schools too," from advocates of their expansion. However, when anyone attempts to subject these schools to any sort of regulatory oversight, this designation is often the first thing to be discarded. Case in point? A California couple, Yevgeny "Eugene" Selivanov and Tatyana Berkovich, who were convicted in April of multiple counts of fraud related to their practice of using their charter school bank account for personal expenses and thousands of dollars worth of meals.

According to the LA School Report, The couple is appealing their conviction, however, asserting that this amounts to a misunderstanding over the nature of charter school finances. An amicus brief has been filed in the case by the California Charter Schools Association, which urges the appeals court to set aside the conviction on numerous grounds.

The table of contents of the Amicus brief enumerates the reasons charter school operators should not be subject to this sort of oversight:

The Employees of a Nonprofit Corporation Operating a Charter School are not Subject to Penal Code §424 ............................................................................................................................7

The Charter Schools Act Authorizes Charter Schools to be Operated by Nonprofit Public Benefit Corporations.............................................................................7 The Nonprofit Corporations Operating Charter Schools Are Deemed to be Private Entities under the law of California ...................................................................................... 9 Employees of the Nonprofit Corporation Operating a Charter School are Not Public Employees (i.e., Not Officers of the State, or Any County, City, Town or District).................................................................................................................13 The Nonprofit Corporation Moneys are Not "Public Moneys".

Here is how the brief explains this. Follow the money as it leaves the public domain and enters the domain of what the California Charter School Association describes as "private entities":

The nonprofit operator plays an important role in the wind up and closure of charter schools. The Charter Schools Act requires that each charter outline the "closure procedures" and how the nonprofit operator will dispose of "all assets and liabilities of the charter school, including any plans for disposing of any net assets[.]" (Ed. Code §47605(b)(5)(P).) After paying or adequately providing for all known debts and liabilities, a California nonprofit corporation can dispose of net assets upon dissolution in conformity with its articles of incorporation. (Corp. Code §6716.) Under California law a nonprofit corporation can dispose of net assets upon dissolution by distributing those assets to another nonprofit corporation upon approval by the Attorney General. (p. 7)

The brief goes on to state:

The ability of a nonprofit corporation operator to distribute the net assets of a closed charter school to a private organization proves that these assets are not "public moneys"; if the moneys (i.e., net assets) of the charter school were public moneys these moneys would have to be returned to the state because the allocation of those funds outside the public school system would be a gift of public funds in violation of the California Constitution. (Cal. Cons. Art. XVI, Sec. 6.)("The Legislature shall have no power...to make any gift or authorize the making of any gift, of any public money or thing of value to any individual, municipal or other corporation whatever[.]".) (p. 9)

And further explain that:

Again, the court cases and other arguments cited above make it abundantly clear that the nonprofit operators of charter schools are private entities under contract with local school districts and are not the state, nor a county, nor a city, nor a town, nor a district, nor any other "public agency" of the state. Moreover, if the money held by the nonprofit operator was "public money" it could not be gifted over to any private party upon the closure of the charter schools--but as demonstrated above the nonprofit operator of the charter school is required to resolve all liabilities of the school it operates as well as retain the right to distribute net assets upon dissolution to another private entity. Consequently, "public moneys" were not involved in the actions of the defendants as defined in Penal Code §426. (p. 15)

These legal arguments confirm what Diane Ravitch pointed out in "Reign of Error":

Charter operators want to have it both ways. When it is time for funds to be distributed, they want to be considered public schools. But when they are involved in litigation, charter operators insist they are private organizations, not public schools. (p. 163)

So let's end this hoax. Charter schools are happy to accept public dollars, but reject the oversight and accountability that comes with operation as a public school. As the California Charter School Association insists, they are private entities. As Diane Ravitch suggests, if they are going to claim that in court, then that is good enough for me. They are private entities. Not public schools.

What do you think? Can charter schools be both public schools and "private entities"?

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