When a charter school doesn’t have enough room to accommodate all the students who want to enroll, the school must conduct a lottery to determine which students will be able to attend. Most schools conduct random lotteries where each potential student’s name goes into the proverbial hat one time and each child has an equal chance of being chosen. If a charter school wants start-up funding from the U.S. Department of Education, it must use a random lottery. But in New York, state law requires charter schools to meet enrollment targets for at-risk student groups (such as free-and-reduced lunch students, students with special needs, and students who are English Language Learners). Faced with these enrollment targets, some charter schools are choosing to use a weighted lottery—a lottery that gives these at-risk students an extra chance to be selected. This tension between federal guidance and state law can put schools in quite a pickle.
Success Academy Charter Schools, a charter school network in New York City, and the United States Department of Education have been at odds over whether the charter schools may preference English Language Learners (ELL’s) in their lotteries. The schools argue they must do so in order to satisfy the letter of the law in New York. The U.S. Department of Education says schools may run weighted lotteries designed to give preferences to ELL’s (or the other student subgroups identified in New York state law) provided these lotteries do not violate existing federal and state civil rights laws, but if they do they will be ineligible for money from the federal Charter Schools Program (CSP). The controversy hinges on language found in Section E-3 of the April 2011 CSP non-regulatory guidance: Weighted lotteries (lotteries that give preference to one set of students over another) are permitted only when they are necessary to comply with title VI of the Civil Rights Act of 1964, title IX of the Education Amendments of 1972, section 504 of the Rehabilitation Act of 1973, the equal protection clause of the Constitution, or applicable State law. The dispute between Success Academy and the Department focuses on how to interpret the phrase “only when . . . necessary to comply with . . . applicable State law.” Although both parties agree that failure to satisfy the established enrollment targets may result in the school’s closure (a penalty set forth in the New York charter statute), they don’t agree on what constitutes compliance with the law. For instance, does compliance require actually meeting the pre-determined enrollment targets or does compliance require demonstrating good-faith effort in attempting to meet the targets? Is it enough for a school to craft a thoughtful strategy for increasing ELL enrollment and show effective execution of the strategy, even if it doesn’t raise enrollment numbers to the level expected by the enrollment targets? Conversely, what circumstances would result in a finding of non-compliance? The outcome could impact tens of thousands of children on charter school waiting lists across New York, where winning a school lottery holds the key to their futures. Let’s hope a resolution is found soon. Renita Thukral is vice president of legal affairs at the National Alliance for Public Charter Schools.
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