Recently, I had the honor of catching up with Stephen Marcus to discuss his legal representation of many of D.C.’s charter schools and other issues.  We began with a discussion regarding the charter school funding inequity lawsuit against the city.

Mr. Marcus reminded me that last October a District Court judge granted summary judgment against the plaintiffs, Washington Latin PCS, Eagle Academy PCS, and the DC Association of Public Chartered Schools, thereby dismissing the case.  The decison has been appealed and Mr. Marcus stated that the parties are waiting for the D.C. Circuit Court to approve a proposed briefing schedule.  I asked the attorney about the arguments the charters are making in the lawsuit.

“There are three main issues,” Mr. Marcus explained: “First, we believe U.S. District Judge Tanya S. Chutkan ruled incorrectly that under the D.C. School Reform Act that the District of Columbia can ignore uniform funding requirements in funding DCPS.  The School Reform Act makes clear that all operating expenses for D.C. public schools, DCPS and public charter schools, must be funded exclusively through the Uniform Per Student Funding Formula.”

Secondly, Mr. Marcus said “we regard the District’s use of projected enrollment to calculate the annual payment to DCPS, rather than the actual enrollment numbers used for charter schools, to be a violation of the School Reform Act.”

The third issue relates to the Supremacy Clause and the Home Rule Act.  “We contend that both the Supremacy Clause of the United States Constitution and the Home Rule Act prohibit D.C. from legislating or acting in conflict with the School Reform Act.”  Mr. Marcus made an interesting point about D.C.’s Home Rule Law.  “In passing this law, Congress did not want to have to decide which of the laws it enacted exclusively for the District should be revised or repealed.  So it decided that the D.C. Council could amend or repeal only those laws passed by Congress prior to the Home Rule Act.  Statues such as the School Reform Act, which were enacted after the Home Rule Act, cannot be repealed by the Council.  We believe that the District is therefore not authorized to amend or legislate in conflict with congressional post-Home Rule statutes such as the School Reform Act, which it has tried to do.”

I related to Mr. Marcus that I understood the finance stipulations under the School Reform Act, but couldn’t the Mayor or City Council still provide supplemental revenue to its own school system?  Mr. Marcus responded quickly.  “Yes, they can, but then the District must provide an equal amount on a per-student basis to charter schools.  Congress intended equal funding between DCPS and charter schools.  To achieve that goal, the SRA requires that the District establish a funding formula based on an objective determination of what it costs to educate a student and multiply that amount by the number of students attending DCPS or a charter school. Supplemental funding to DCPS without providing equal funding to charter schools defeats Congressional intent.”

FOCUS, the charter advocacy group that is coordinating the funding lawsuit, has estimated that between the years 2008 to 2015, DCPS has received $1,600 to $2,600 per student every year more than charter schools.  I inquired of Mr. Marcus if there have been attempts to resolve the funding equity issue outside of the courts.  “There were discussions,” Mr. Marcus stated.  “In fact, as part of the lawsuit, mediation was ordered.  However, the District continues to affirm that it has the right to provide additional funding to DCPS without having to provide the same funding to the charter sector.  In this case, they successfully persuaded the judge of their position.”

I have known Mr. Marcus for over a decade.  He was the lawyer that in 2004 negotiated the lease of the permanent facility for the William E. Doar, Jr. Public Charter School for the Performing Arts (now named City Arts and Prep PCS) when I was its board chair.  Moreover, when charters go before the DC Public Charter School Board on important matters, it is not uncommon to see Mr. Marcus in attendance as their legal counsel.  I wanted to understand from Mr. Marcus how he came to have charter schools as clients.

“WEDJ was the first charter school I represented,” Mr. Marcus informed me.  “I had been on the board of the Jewish Primary Day School.  In that role, I became involved in helping the school find a new facility after it was forced to vacate its existing facility. We were eventually successful in finding a school building.  I negotiated the purchase of the building and then a lease of the building back to the school that sold it to us so that it could remain in the building for the rest of the school year. This experience gave me invaluable technical expertise as well as a deep commitment to helping schools at risk of closure survive.”

Mr. Marcus continued, “I knew someone professionally who was on the WEDJ board, who recommended me to represent WEDJ in lease negotiations.  After the lease was signed, I continued to represent WEDJ.  Because of these efforts, Jerry Levine, a D.C. lawyer, recommended me to Josh Kern, who was then the executive director of Thurgood Marshall Academy PCS and was working on the securing of his school’s permanent facility.  Josh retained me to negotiate several leases, including a ground lease with the District.  Josh also introduced me to Robert Cane at FOCUS.  My colleague Sherry Ingram and I began advising FOCUS on charter school autonomy issues.   We have now been working with FOCUS for ten years.”

Mr. Marcus’s practice now includes helping charter schools on a wide range of issues such as charter application, compliance, charter review and renewal, and other matters up to revocation, closure and takeover.  He sees many of these efforts revolving around the interpretation of the School Reform Act.  A significant number of his interactions, naturally, are with the DC Public Charter School Board.  I asked him how he views the board.

“I have a lot of respect for them,” Mr. Marcus answered.  “I’ve come before them with schools such as IDEA PCS, the Latin American Youth Center Career Academy, Achievement Prep PCS, and Excel Academy PCS.  I see an extremely dedicated board of volunteers who spend many hours trying to get it right.  While I may not always agree with the board’s decisions, their level of attention and willingness to spend time to understand the facts is astonishing.  For example, with LAYC, the PCSB board and staff worked very hard to come up with an alternative to closure.  I believe they have tremendous integrity and are always trying to do what they think is best for the kids.”

I wanted to know from the attorney if he saw any weaknesses in their efforts.  This took him a little longer to answer but eventually he did have some exceptionally interesting comment to make.  “I thoroughly agree with the board’s emphasis on quality, but the drive to create metrics has pushed them to pressure schools to adopt the Performance Management Framework as their charter goal.  This is especially true when schools come up for their 5, 10, or 15 year reviews.  Schools used to have mission-specific goals, but these are difficult to benchmark.  But after a school adopts the PMF, the floors and ceilings of the PMF’s performance indicators increase over time.  The notion that a charter school’s goals can be changed unilaterally by the PCSB is contrary to the School Reform Act.”

“I have a couple of other concerns,” Mr. Marcus added.  “An internal PCSB study demonstrated there is a strong statistical bias that reduces PMF scores for charters that have a high percentage of at-risk students.  In addition, under the PCSB’s own rules, in order to continue operating, schools must earn an average score of at least 45 percent on the PMF at their 10-year review and 50 percent when they reach the 15-year mark.  But I am not aware of any studies that demonstrate a correlation between a 50 percent on the PMF and being a good school.”  I asked Mr. Marcus how he thinks these concerns should be addressed.  “What I would really like to see is an open and honest discussion about PMF bias with respect to at-risk students, the use of the PMF as a charter goal, and the lack of research that directly links a PMF score with quality.  This is my hope.”

Mr. Marcus concluded, “I think it is important that a school have legal representation when it goes before the PCSB, especially when high stakes decisions are going to be made.  The law imposes limits on PCSB’s authority through the SRA, administrative law, and PCSB’s own policies that constrain PCSB’s actions and discretion.”