Judge rejects petition to charterize all of Chester, calling it ‘premature’

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

This story has been updated. A response from a representative of Chester Community Charter school is appended at the end.

The latest chapter in the long, sad tale of Chester Upland schools played out in a Media courtroom on Wednesday, with Delaware County Common Pleas Judge Barry C. Dozor denying an unprecedented motion to convert all of that district’s schools into charters, except for Chester High.

However, Dozor’s decision was largely procedural, and the door has not been closed to a potential charter takeover of the beleaguered district. Dozor continues to preside over efforts to complete a financial recovery plan for Chester Upland, which has been under some form of state receivership for 25 years and already sends most of its pre-K through 8th-grade students to charters. Now, just under 3,000 students attend six remaining district schools, about a third of them in the high school.

The petition was filed on behalf of Chester Community Charter School (CCCS), the largest brick-and-mortar charter school in Pennsylvania by far, with an enrollment of more than 4,300 students on several campuses. It is operated by Charter School Management Inc., a for-profit company owned by Vahan Gureghian, a multimillionaire businessman and top Republican donor

The petition was to allow CCCS to write a “request for proposals” to charterize the district.

CCCS attorney Francis Catania argued that “solutions in the past don’t work … and won’t work this time” and cited the need for “another remedy.”

But Dozor declared at the end of the nearly three-hour hearing: “This petition is premature.” He said it did not meet all requirements of state law, including a demonstration that the potential charter operator was financially stable and could improve educational quality for students.

If Dozor had granted the motion, it would have established a new route to the creation of charter schools in Pennsylvania that skirts current state law – a point driven home by attorney James Flandreau, who was representing the Pennsylvania Department of Education.

Flandreau said that although state law allows the conversion of underperforming district schools to charters – this has happened in Philadelphia – certain standards must be met. He said CCCS is trying to design a process from which it could ultimately benefit.

“It’s like the fox raiding the henhouse,” Flandreau said.

The appointed receiver for the district should develop the recovery plan, he said, adding that it could conceivably include proposals for more charterization.

Dozor agreed that there needed to be a “level playing field” on which other charter organizations could compete should the recovery plan include recommendations to expand privatization of Chester’s schools.

The Chester Upland district – an enclave of mostly low-income African American students in the middle of mostly affluent Delaware County – is being managed as a state receivership due to financial distress. Dozor set a deadline of Dec. 19 for a completed financial recovery report from the receiver and said he would schedule “evidentiary” hearings in February or March, during which he will visit Chester Upland schools to see conditions for himself.

He extended the appointment of Gregory Thornton, a former assistant superintendent in Philadelphia, as interim receiver until March 31 and told Thornton to continue using the services of consultant James Pund to help develop the recovery plan. He also ordered the state Department of Education to propose a new permanent receiver by Jan. 31.

Flandreau said a report prepared by Thornton and Pund was being reviewed at the Department of Education with the aim of submitting it to the judge by the December deadline.

In the district’s long history of financial distress, marked by a succession of receivers and shifting state laws, it can be hard to sort out the line of authority. The state law governing its current status was passed in 2012.

Besides the receiver, Thornton, the district also has an elected school board and a superintendent, Juan Baughn. At the hearing, the board and the district were represented by different attorneys, and they apparently have different attitudes about a potential charter takeover of the remaining district schools.

Other attorneys sought to intervene in the case on behalf of the Chester Upland Education Association and other employee unions, a group of parents, and the School District of Philadelphia.

Dozor denied their requests, saying that they were now moot because he had denied Chester Community Charter’s original petition. Whether these parties will be allowed to continue their involvement in the ongoing legal saga will depend on future developments.

Philadelphia wanted to get involved because about 1,500 Philadelphia students are enrolled at CCCS, bused in some cases more than an hour each way from as far away as Northeast Philly. CCCS aggressively recruited in Philadelphia due to an agreement to stop enrolling more students from Chester because of the severe financial impact the exit of so many students had on the district.

Charter schools in Pennsylvania are paid a certain amount per student, money that comes from the sending school district. Based on a formula, a charter can receive more than three times as much for students with special needs, but it isn’t required to spend all that money on those students. CCCS has historically had a relatively high proportion of special education students, compared to other charters and most districts.

Despite court orders, Gureghian has declined to make public the books of his management organization, saying that as a private business he is not obligated to, even though most of his revenue comes from taxpayer dollars.

The Philadelphia Board of Education said in a statement that it was paying $15.6 million this year to CCCS, plus $1.5 million for transportation. It said it is required to turn over this money despite lacking any ability to monitor the Chester-based school for academic, operational, and financial integrity. Those figures are up from $7.2 million in 2016-17 for less than 1,000 students.

Philadelphia pointed out that it authorized and can monitor the 87 charter schools in the city, which enroll more than 60,000 students. But due to a “loophole” in the “outdated” charter law, it has no authority to monitor a charter outside the city that recruits its students.

In a statement, the Philadelphia board said the “poor academic performance” of CCCS “gives the Board of Education no confidence that this operator is providing a quality educational experience to Philadelphia children.”

“If Chester Community Charter School is permitted to take over the entire K-8 program of the Chester Upland School District, it will open the door for more of our children to attend underperforming schools at a significant cost to Philadelphia taxpayers,” its petition said.

The petition on behalf of the parents was filed by the Education Law Center (ELC) and the Public Interest Law Center (PILC).

ELC legal director Maura McInerney said that the Pennsylvania law permitting district schools to be converted to charters includes the conditions that the charter can prove it is able to provide a quality education better than the district’s in a safe environment and that there are cost savings associated with the charter taking over.

According to state performance evaluations, Chester Community Charter’s academic achievement and growth lag behind several Chester district schools, McInerney said.

“Publicly available research discloses that children served by Chester Community Charter School exhibit lower achievement scores compared with district schools in all categories of PSSA testing in math, English language arts and science, saying that CCCS has a lower score on the state school performance profile than three other district schools: Stetser, Main Street and Chester Upland School of the Arts,” said McInerney,

ELC and PILC said they would watch the next developments in the case and “intend to renew our petition to intervene on behalf of parents who have a legal right to participate in this proceeding and provide critical input on the plan, which will directly affect the rights and future of their children.”

Lawyers representing different parties – including the district and Superintendent Baughn, the elected Chester school board, cyber charter schools, Philadelphia, the parents, and a group called “Friends of Chester Community Charter School” – were arrayed across the courtroom.

As they spent the morning making legal arguments, Baughn interjected bit of drama as he revealed near the end of the hearing that just the day before, he had been forced to shut down one of the district schools early due to a lack of heat, providing a graphic description of how little the long history of state intervention has accomplished.

“When I walked through the school yesterday and I see students who say to me, ‘we can’t learn like this, we can’t learn like this,’ and I go into the room where they are sitting with their coats, that’s a problem,” he said.

The state had authorized borrowing $23 million to deal with facilities issues, but just $11 million of that has been spent.

“What we put in the original recovery plan has not been taken care of,” Baughn said.

“To me the most striking part of the hearing was that while the adults were arguing same old, same old, the same problems continue at the district, with students left in conditions where they have to be sent home,” said Michael Churchill, of counsel to the Public Interest Law Center. “They can’t even keep heat in the buildings.”

Different lawyers represented the school district’s administration and its elected board of education. The elected board seemed more predisposed to the charterization proposal than the district.

“We’re saying, open the RFP process,” said Chester Upland Board Chair Anthony Johnson, interviewed after the hearing ended. The most important thing, he said, is to stabilize the district’s finances.

UPDATE Citing the building conditions – and the failure of the Department of Education to solve Chester Upland’s problems – he said the board is open to outside management and the possibility of charter expansion. “If it provided financial stability, yes.” END UPDATE

He and others said that CCCS has said it would not seek control of Chester High.

Johnson said he wasn’t troubled that CCCS is operated for profit, citing the thousands of parents who have chosen to send their children to the school.

“He’s a businessman,” Johnson said, referring to Gureghian. “Three thousand [Chester] kids are in the charter. What does that tell you?”

The Chester Upland Education Association and the regional chapter of the Pennsylvania State Education Association organized a demonstration on Tuesday night to oppose the CCCS petition in advance of the hearing. In the cold, standing outside Chester High School, many turned the tables on the “choice” argument by saying that if all the districts’ schools were charters, parents would have no choice.

Pam Brown, regional vice president for PSEA, said that district schools “put children first” while Chester Community Charter “puts dollars first. You should have the choice to send your students” to district-run schools, she told the gathering.

Jean Arnold, a longtime Chester activist who attends all board of education meetings, said the charter is popular with parents because they are attracted to “new buildings, a new operator, and think that is going to be the change we need.” It takes a while to realize it is not, she said.

“The solution isn’t more charter schools,” Arnold told the crowd. “It is more funding and transparency.”

This story has been updated to clarify the position of Board of Education President Anthony Johnson, who said the original version incorrectly characterized his position on whether Chester Upland should fully charterize its schools serving students through 8th grade.

Response on behalf of Chester Community Charter School, sent by Max Tribble.

Your description of the petition filed by Chester Community Charter School (CCCS) in the case of the receivership in Chester Upland School District (“CUSD” or “the District”) lacks significant details and misstates many actual facts.

I will start with the first paragraph: There has been no motion to “convert all schools into charters, except Chester High.”

The Court asked all parties to submit recommendations for the stabilization of Chester Upland. CCCS merely suggested that there exists a remedy in Act 141, the law establishing the receivership, which allows for the conversion of one or more schools to charters if (and only if) such conversion creates needed financial efficiencies. I am left to believe that you reported without reading either the original pleading or the statute.

Back to basics: The District was placed into receivership in 2012. The receivership is prescribed, by statute, in three-year terms. The legislative intent was to achieve a significant level of stability within one term of the receiver. We are in year seven and Dr. Thornton is the fourth receiver, interim though his appointment is. Nothing has been accomplished. As counsel for CCCS asked during Wednesday’s hearing, what is the harm in exploring new ideas when the old ones have failed?

And why are you so negatively castigating those who offer potential solutions? Clearly the status quo cannot be maintained yet those who criticize CCCS for engaging in a positive dialogue are the same people who have failed to offer any solutions.

And just to put a finer point on this, it should be noted that CCCS did not petition for itself to be the author of any RFP. This is another fact that you simply got wrong.

Furthermore, you state that, “Had Dozor granted the motion, it would have established a new route to the creation of charter schools in Pennsylvania that skirts current state law.” There is no “new route … [skirting] current law.” This again leads me to believe you have not read the law on which you are reporting. The law is very clear about the ability of a district in financial distress to “convert one or more buildings.”

You also stated: “CCCS aggressively recruited in Philadelphia due to an agreement to stop enrolling more students from Chester because of the severe financial impact the exit of so many students had on the district.”

I have no idea to what agreement you are referring. CCCS continues to enroll Chester Upland students who chose to exercise their right to school choice. The multitude of reasons for so many Philadelphia students choosing the long bus ride to Chester over a short walk to their neighborhood SDP schools are, no doubt, explained by the vast reporting of the inadequacies of that district. CCCS has done nothing to coerce parents to send their children on bus rides of an hour or more. To the contrary, these parents believe the opportunities at CCCS to be better than those in Philadelphia and, in many cases, value the safe, modern and non-toxic facilities CCCS provides.

The petition to intervene by the School District of Philadelphia was without any basis in law. The insinuation that Philadelphia students’ enrollment at CCCS constitutes the exercise of a loophole is incorrect at best, and prejudicially misleading at worst. The law is very clear about the right to school choice transcending district boundaries. This is not an area in which the law is silent and this is certainly not a loophole. The provision is clear and intentional. If SDP is unhappy about the number of students (some 70,000) who choose charters over district-led schools, it should provide educational opportunities that do not incite its students to take the long bus ride to Chester. Blaming CCCS for educating SDP students is an irresponsible diversion from the inadequacies of that district.

To underscore the insincerity of the SDP, it should be noted that its petition stated:

“The School District of Philadelphia does not object to the issuance of an RFP for conversion of Chester Upland’s remaining pre-K to 8th grade schools to charter schools under Section 6-642-A if those charter schools are limited to enrolling students from within the Chester Upland School District boundary.”

The SDP does not seem to care about the best interests of the Commonwealth’s school children, but rather it cares most deeply about maintaining the revenue to which it has become addicted.

The aforementioned statement from SDP’s petition to intervene demonstrates a desire by that district to create, of its own students, a unique class of children in Pennsylvania which would be the only one restricted from full exercise of the rights of the charter school law. It is, quite clearly, an effort to impinge their civil rights.

The one point in your piece which merits thoughtful consideration is that made by CUSD Superintendent Juan Baughn. The schools in the District, much like so many of the schools in SDP, are facing critical infrastructure challenges that imperil the students’ ability to learn. Through the conversion RFP process, the receiver would have the opportunity to mandate that any award allow for and require the significant improvement of facilities. Short of some measure like this, it is hard to see how the physical environment will be brought to a level which can nurture learning.

Chester Community Charter operates modern, state-of-the-art school buildings, free from asbestos and lead paint, and with mechanical systems that function as they should. The heat is on, the lights are on, and the SmartBoards are on. The teachers are free to teach and the students receive all of the nutrients that foster education: if they need glasses to read, glasses are prescribed; if they need food to fill an aching belly, they are fed; if they need emotional support to cope with the challenges that surround them outside of the classroom, that support comes from a caring and dedicated staff who has determined as its mission to support the most underserved children in America.

I hope that you will consider these points and revise your reporting to accurately reflect the issues in this most important situation. Thousands of young lives are on the line and they deserve our most thoughtful efforts and deliberations. To allow the conversation to be dominated by biased rhetoric is a threat to these students’ constitutional right to be afforded a strong education.