Charter Schools Are Part of Private Law, Not Public Law

Public law and private law are separate spheres of law that operate according to different standards and relationships. ((Public and private, it should be noted, are antonyms.))

Private law governs relations between private citizens, whereas public law governs relations between individuals and the state. This distinction is critical. Private law does not concern society as a whole; public law does.

Private law includes tort law, contract law, commercial law, and property law. Public law encompasses constitutional law, administrative law, criminal law, tax law, and municipal law.

Public schools fall under public law and are considered to be government enterprises, i.e., agencies of the state, also known as political subdivisions of the state. Public schools serve a public purpose, have elected school boards, accept all students, do not charge tuition, and have taxing powers. Charter schools, on the other hand, are contract schools that fall under private law. They are not public schools in the proper sense of the word; they are private non-profit or for-profit organizations that do not accept all students and cannot levy taxes. Charter schools are not governmental entities or political subdivisions of the state. To call them public schools is incorrect.

A contract is a legally binding voluntary agreement — not just a promise — between two or more parties to do or not do something during a specified period of time, with associated rewards and punishments. Contracts are formed through mutual consent and rest on the ideologies of individualism, consumerism, voluntarism, choice, and the free market. Contracts are central to markets and commerce. Indeed, contracts make markets (buying and selling) possible. A typical example of a contract is when one voluntarily enters into an agreement with a carpenter to renovate their kitchen. For example, if I hire a contractor to remodel my kitchen, the contractor and I voluntarily sign a contract (an agreement) stipulating all the things that will be done, when they will be done, how much money will be exchanged, when it will be exchanged, and what damages must be paid when one party or another breaches a provision of the contract.

A charter school contract is essentially a performance-based contract between those who create the school (private actors) and an entity empowered by a state legislature to review, approve, and revoke charter school contracts. ((Such entities are usually not public in any meaningful sense of the word.)) Performance is usually based on punitive high-stakes standardized tests produced by major corporations fixated on maximizing profit as fast possible. The contract stipulates how the school will be funded, how “achievement” will be “measured,” how teachers will be recruited, which grades will be offered, how facilities will be secured, how many students will be enrolled, what happens if goals are not met, and many other things that go into creating and running a school. In most states, contracts for non-profit and for-profit charter schools are five years long. Charter school legislation exists in 44 states, Washington, D.C., Puerto Rico, and Guam.

The antisocial restructuring of public education is part of the neoliberal wrecking that has wreaked havoc at home and abroad since the late 1970s. The outsourcing of public services and functions performed by public actors to the private sector is a main form of privatization. Contract schools represent the outsourcing of education to the private sector, which is subject to the chaos, anarchy, and violence of the free market. Non-profit and for-profit charter schools are part of the ethos of the “survival of the fittest” and reinforce neoliberal ideas and practices. This is a main reason why charter schools open and close frequently, thereby increasing instability in education, society, and the economy. It is also a main reason why charter schools exclude many students, are run by unelected individuals, and are exempt from dozens, even hundreds, of laws, rules, and regulations that apply to public schools. Some courts have even ruled that charter schools are not public schools, while others have ruled that charter schools do not have to do certain things public schools must do. Charter schools are able to act the way they act because they are not subject to the standards and relations of public law. Charter schools operate outside the purview of public authority.

Just a few short years ago, some people still believed charter school advocates when they repeated ad nauseum that non-profit and for-profit charter schools are public schools. Today, however, the privatized and marketized nature of non-profit and for-profit charter schools is clear to more people than ever before. Few people today blindly assume that charter schools are public schools. And given the explosion in the number of articles and books exposing the many problems caused by charter schools, we are now seeing more diverse forms of opposition to charter schools. Thus, for example, several dozen superintendents from school districts in the greater Philadelphia area recently joined forces to oppose charter schools and the damage they are causing to public schools and the public interest. ((See: Ravina, R.  “LEARN coalition calls for charter school reform across region“, The Reporter, January 28, 2020.))

Charter school disinformation is losing its grip on more people with each passing day. Blind acceptance of charter schools is a thing of the past. People do not want public schools privatized. They do not want schools to become pay-the-rich schemes.

Shawgi Tell is author of the book Charter School Report Card. He can be reached at Read other articles by Shawgi.