Perspectives: Charter schools started — and litigated — here

“The time had come for teachers and parents to step forward and create charter schools.”

Ember Reichgott Junge, “Zero Chance Of Passage,” p. 203 (2012)

With the 2023-24 school year underway, the charter school movement, born and bred in Minnesota, is growing stronger than ever. The institution has a quintessential Minnesota heritage, like water skiing, Zamboni ice machines, and lutefisk, among other items of local lineage.

You betcha!

Naturally, like other Minnesota-originated features, charter schools have had their share of litigation, most of which has resulted in victory for the educational institutions.

The start of the school year provides an opportune occasion to review those cases, including two decided earlier this year, in the context of the development and growth of the charter school movement in this state.

Reichgott’s risk

The charter school concept arose in 1991, championed by Ember Reichgott, now Reichgott Junge, a long time influential Minnesota state senator from the northwest Twin Cities suburbs. The DFLer conceived the idea, spearheaded it, and ultimately managed to get it enacted through legislation, with the full support of then-Gov. Rudy Perpich, who, like her, happened to have Croatian ancestry.

Reichgott, who served in leadership positions in the Senate, and the governor from the Iron Range were instrumental in the legislation, Minn. Stat. §124E.02, et. seq., that formed the foundation for the birth and growth the movement, which started slowly, gathered momentum, and more recently, snowballed to the point where Minnesota has steadily increasing numbers of facilities, students and staff, a pattern reflected in a number of other states as well.

A St. Olaf undergraduate, St. Thomas (MBA), and Duke Law School alumna, Reichgott Junge incidentally celebrated a significant birthday earlier this week, Aug. 22, to be precise. That’s a little more than a decade after she wrote a compelling account in 2012 of her struggles and successes in a riveting book entitled “Zero Chance of Passage,” subtitled “The Pioneering Charter School Story.” The publication aptly depicts the long odds she faced in her campaign and was praised by no less a high-profile figure as President Bill Clinton who called it “a fascinating and detailed account of the bipartisan movement to revive the American school system.”

Speaking of campaigns, she later faltered in a couple of other political ones, losing an effort to become attorney general and also a race for a vacant seat in the 5th Congressional District, which was ultimately won by Keith Ellison, who later became the state attorney general.

Nonetheless, after an 18-year stint in the state Senate, 1983-2001, she went on to other successes, including serving as a radio talk show host, television political commentator, and practicing lawyer, in addition to her participation in an organization geared to acclimating youth to the joys of dancing, one of her favorite pastimes, titled “Heart of Dance.”

There was considerable risk for her when she initiated the charter school movement. It was, at that time, an unknown feature. Further, it angered many public school educators as well as labor union leadership, who have long been a significant base for her DFL Party.

But the risk was rewarded, resulting in a now well-established feature of the education system, for better or worse, in this state and throughout the country, too.

Litigation litany

Not surprisingly, charter schools have attracted their share of litigation over the years, including two decided by the Minnesota Court of Appeals this past spring.

Here’s a look at sone of the litany of litigation, beginning with the two from this year.

• A challenge by a school counselor when a school district did not renew her contract after she had taught for three consecutive years in a charter school, claiming that she was entitled to tenure rights, was rejected by the Court of Appeals in In re Termination Nonrenewal of Teaching Contract,986 N.W.2d 251 (Minn. Ct. App., Feb. 13, 2023). The case turned on interpretation of the Continuing Conduit Law regarding teacher tenure, Minn. Stat. § 122A.40 (5)(a), which the court construed as not providing for accumulating tenure for “teaching experience … in a single district,” after the teacher moved from a charter school in Elk River to a public school setting in Monticello.
• A claim against a pair of charter schools that conducted a joint basketball program in Hennepin County for negligent hiring of one of the coaches who allegedly committed sexual abuse of a student was unsuccessful in Doe 601 v. Best Academy,2023 WL 2961825 (Minn. Ct. App. April 17, 2023)(unpublished). Affirming a decision of the Hennepin County District Court, the appellate court ruled that the school district was entitled to “discretionary immunity” under Minn. Stat. § 466.02, because the decision to hire the teacher involved a balancing of “economic, socio-economic and political policy factors.”
• Various immunity doctrines also barred a personal injury action arising out of an injury that a student sustained at a charter school in northeast Minneapolis in Irwin v. Carter G Woodson Institute for Student Excellence,2012 WL 3892204 (Minn. Ct. App. Sept. 10, 2012)(unpublished). Various claims against the school’s board of directors fell prey to common law official immunity; vicarious official immunity; statutory discretionary immunity; and statutory recreational use immunity.
• A breach-of-contract claim by a director of an innovative online charter school was unsuccessful in Ellis v. BlueSky Charter School,2010 WL 1541352 (Minn. Ct. App. April 20, 2010)(unpublished). The Court of Appeals held that the provision in his employment agreement reciting that the arrangement was for a “general at will” relationship was not overcome by a term in the contract that defined for automatic renewal after each year of the arrangement. Because the “at will phrase [was] definite” it “overrides” the automatic renewal clause.
• Similarly, the executive director of a charter school failed in his challenge to a termination by a Minneapolis charter school in Tipka v. Lincoln International Charter School,864 N.W.2d 371 (Minn. Ct. App. 2015). The Court of Appeals reasoned that it lacked jurisdiction under a writ of certiorari to review the appellate decision because a “charter school is not a public corporation” subject to writ of certiorari under Minn. Stat. § 123A.55 and Minn. Stat. § 480A.06(3).
• A facilities coordinator in an Anoka County charter school lost his bid for unemployment compensation in Carson v. PACT Charter School, 2019 WL 3407167 (Minn. Ct. App. July 29, 2019)(unpublished).The employee’s failure to maintain an open gymnasium space on the premises for staff and deviations from protocols in using the school gymnasiums for his own purposes warranted a disqualification for “misconduct” under Minn. Stat. § 268.105.
• Charter schools were deemed ineligible to operate alternative learning programs in Minnesota Transitions Charter School v. Commissioner, 844 N.W.2d 223 (Minn. App., March 17, 2014). The appellate court held that the enabling statute, Minn. Stat. § 123A.05 subd. 1(a) did not expressly include that feature as permissible for the schools.

The charter school movement has made its mark around the country since its birth here in Minnesota 3-plus decades ago. From zero to large numbers of facilities, students, teachers and staff have become a staple in the educational system both here and nationally, and their participation is likely to grow in the years ahead.

PERSPECTIVES POINTERS

Charter schools by the numbers

• Charter schools in the U. S.: 7,800
• Charter school students in the U.S.: 3.7 million (7.5% of all public K-12 public school students)
• Charter schools in Minnesota: 181
• Charter school students in Minnesota: 67,000
• Pre-K charter schools in Minnesota:57

Marshall H. Tanick is an attorney with the Twin Cities Law firm of Meyer Njus Tanick.

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