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Who decides whether charter schools open in Pa.? Not just your local school district.

Gov. Tom Wolf hasn't replaced his predecessor Tom Corbett's appointees to Pennsylvania's Charter Appeals Board, which decides appeals from charter schools rejected by local districts.

Gov. Tom Wolf (right), who took office in 2015, has not replaced any of former governor Tom Corbett's appointees to Pennsylvania's Charter Appeals Board, which decides appeals from charter schools rejected by local districts.
Gov. Tom Wolf (right), who took office in 2015, has not replaced any of former governor Tom Corbett's appointees to Pennsylvania's Charter Appeals Board, which decides appeals from charter schools rejected by local districts.Read moreTom Gralish

The charter school proposed for West Philadelphia had failed to submit a fully developed curriculum. Its management company hadn’t demonstrated that the schools it runs should be replicated, according to the school district.

Thus the school board last week for a second time denied a charter for the dance-themed Joan Myers Brown Academy.

Although it chose not to, String Theory, the charter’s operator, could have appealed. In Pennsylvania, school districts don’t have the final say over the fates of the charter schools that they are tasked with regulating.

That belongs instead to the Pennsylvania Charter Appeals Board — one of only two such boards in the nation, according to the National Association of Charter School Authorizers.

Created shortly after Pennsylvania passed its charter-school law in 1997, the appeals board has long been controversial for its ability to overturn decisions of the local school boards that regulate charter schools.

In addition to the secretary of education, Pennsylvania’s board is supposed to have six members appointed by the governor. But it currently only has five. And all are serving under expired terms — some since 2015. Gov. Tom Wolf, a Democrat now in his fifth year, hasn’t nominated anyone to the board. Every member was appointed by his Republican predecessor, Gov. Tom Corbett, whose administration was more supportive of charter schools.

Here’s a primer on the board and why it matters:

Why is there a Charter Appeals Board?

Charter proponents pushed for the board’s creation to ensure that districts couldn’t stop development of charter schools.

Charter advocates see an inherent conflict. The process is “basically giving McDonalds the right to decide whether a Chick-fil-A can open across the street,” said lawyer Brian Leinhauser, who represents charters.

Most states with charter schools have different or additional ways to approve charters, including through state agencies or universities, said Greg Richmond, president and CEO of the charter authorizers’ association.

“School districts won that debate” in Pennsylvania, Richmond said. The appeals board reflects a “political compromise," though for charter schools, it’s “not as good as having an alternative route in the first place.”

For school districts, the board is a source of frustration.

Criticisms of the board

“It’s a terrible system,” said Ira Weiss, lawyer for the Pittsburgh Public Schools, which has had decisions both affirmed and overturned by the board. “It’s a decidedly pro-charter venue, there’s no question about it.”

Weiss and others fault the board for not considering the fiscal impact of charter schools on districts, which fund charters based on enrollment.

Pennsylvania’s charter law says that in approving a charter, school boards should consider reasons “including, but not limited to" support for the new school, the applicant’s capability, whether the school meets the charter law’s intent, and whether it would serve as a model.

The appeals board has said that the law doesn’t allow school boards to consider a charter’s fiscal impact, saying that lawmakers knew that districts would have to pay charters.

The appeals board has said that to deny a charter, school boards must find an application deficient under one of the four reasons listed in the law.

But the law doesn’t say school boards can’t consider a charter’s fiscal impact on the district, said Susan DeJarnatt, a Temple law professor. In a West Virginia Law Review article this year that analyzed the appeals board’s decisions on the issue, DeJarnatt said the board’s reasoning included “little to no analysis and no citations showing support in the law itself.”

Weiss also said the board has not been willing to consider any impact of charters on segregation of students. “It’s a very textbook, fill-in-the-box type of analysis," he said.

He called the board’s process “extremely opaque," though it “literally controls hundreds of millions of dollars in public funds.”

Who’s on the board?

The board’s seats are reserved for specific roles: a higher education member, a certified public school teacher, a business representative, a parent of a school-aged child, a state Board of Education member, and a school board member.

The higher education seat is currently vacant. Several other members have ties to charter schools: Parent Lee Ann Munger’s children have attended Propel charters. Julie Cook teaches at Souderton Charter School Collaborative, which opened after the appeals board decided in its favor in 1999. The wife of Mitchell Yanyanin, the school board member on the panel, worked for Pennsylvania Cyber Charter School.

Yanyanin, then a board member in New Brighton, Beaver County, said he got on the appeals board after a lobbyist approached his wife at a meeting in Harrisburg and asked if he would serve on it.

“She didn’t know what that was, I didn’t know what that was,” said Yanyanin, who is no longer on the New Brighton board. He met with his state senator and asked why he was chosen. “He said, ‘You fit the bill. If it’s not you, it’ll be somebody from the other part of the state.’”

Yanyanin said the Department of Education sends board members a document before hearings, summarizing both sides’ written submissions. “They narrow down the issues you have to decide,” but don’t make a recommendation, Yanyanin said — except to occasionally say that “according to the law, this is the only way you can vote.”

As a former school board member, Yanyanin said, the cost of charter schools to districts is “troubling.”

But, he said, “you can’t take that into consideration.”

Advocates of traditional public schools have pushed Wolf to make appointments to the board, calling for a moratorium on proceedings until it has new members.

Former Rendell administration policy chief Donna Cooper, now the executive director of Public Citizens for Children and Youth, said it was difficult for a governor to get nominees confirmed by the opposite party. (Republicans control the Pennsylvania House and Senate.) But she said Wolf’s office was “trying to move this forward."

In April, Wolf spokesman J.J. Abbott said negotiations with the Senate “are ongoing but we are eager to put full members on the board as soon as possible.”

This week, Abbott said there were no updates on the negotiations.