Charter School Needs License For Preschool, State Says
January 02, 2009
After the last student filed out of Jumoke Academy for winter break, the school's chief executive, Michael Sharpe, stood in an empty classroom, shook his head and sighed with worry.
The preschool that was launched last year at Jumoke, a charter school on Blue Hills Avenue, is in jeopardy, as are the after-school enrichment and academic clubs. On Dec. 18, the state Department of Public Health issued an order to cease operations of the programs — all of which are considered "day care" under state law — because the school does not have a license for them.
The issue has swept Jumoke into a legal battle that could have ramifications for all charter schools in the state. Although under state law charter schools are now subject to the licensing process for day-care programs, they usually did not seek a license because they assumed that, like public and private schools, they were exempt, Sharpe said.
It's a blow to the charter school, which saw almost all of the children who attended the preschool program enter kindergarten at or above grade level, Sharpe said. In an urban school trying hard to close the city's achievement gap, reaching students early means a lot.
The issue is "not about safety. It's not about not doing something right. It's about an unclear law," Sharpe said.
For now, Sharpe said, Jumoke will continue to run its after-school and preschool programs. But it faces fines of as much as $100 a day for ignoring the cease-operations order. The public health department also can seek a court injunction to shut down the program.
The public health department began looking into the licensing of charter schools in the summer of 2007, said Devon Conover, chief of the community-based regulation section.
"When we became aware that there were different categories of schools, it became important for us to understand their status with regard to the exemption language," Conover said.
The public health department refers to two state laws to support its call for licensing day-care programs at charter schools.
State law says day-care programs run by a public school system or a private school acknowledged by the state Department of Education don't need a license to operate.
That law would seem to allow day-care programs run by charter schools. But a different law defines charter schools as "public, nonsectarian school(s) ... operated independently of any local or regional board of education" — thus making them a separate entity from public or private schools.
It's that in-between nature that's causing the discrepancy for charter schools, which are free of the typical administrative and union rules that govern public schools. The state issues charters for the schools, which receive state funds, and which must demonstrate student achievement or face losing their charters.
"Charter schools don't neatly fit into that public school exemption, so a [charter school] that is running a preschool or an after-school program has to be licensed or fall into one of these categories," Conover said. "They have to meet specific criteria. We don't have any evidence that that is the case."
The attorney general's office, in an informal opinion issued last March, drew the same conclusion. Charter schools are often run by corporations or independent organizations, the opinion said, and even though they have elements of public and private schools, charter schools "do not appear to exactly conform to the child care licensing exemption requirements for either public or private schools."
The education department has accepted the legal opinion and the jurisdiction of the public health department in this case, spokesman Thomas Murphy said.
"Charter schools should have freedom and flexibility," Murphy said. "However, on the other side, there should be accountability."
But Jumoke's attorney disagrees. In a counter-opinion sent to the state education department in July, Paul Shapiro of the law firm Shipman & Goodwin wrote that charter schools are subject to state and federal laws governing public schools and, as such, should be exempt from the licensing requirement.
"I think if anyone looks with any open-mindedness at the existing legislation, the intent of the law, it's clear that a charter school is a public school," Sharpe said.
Other charter schools have already received licenses for their programs. The Charter School for Young Children on Asylum Hill, which opened this year, is one. Beth Bye, a state representative from West Hartford and a former employee of the Capitol Region Education Council, which runs the new charter school, said the licensing process added a lot of extra work.
"It added about 150 to 200 hours of staff time to get it done," Bye said. "Public health licensing is a good thing. But these schools are already held to so many standards. ... It seems like over-regulation."
Sharpe called the burden of obtaining a license "huge." But Murphy said the licensing offers protection for the young children who attend preschool or day-care programs. "We're talking about very young children," Murphy said. "The health regulations are much more relevant in terms of the testing that's required," including testing for lead in the water.
The order has left parents and staff at Jumoke scratching their heads.
"I don't understand how you take away a pre-K," said parent Carol Shaw, whose 4-year-old daughter is in the program at Jumoke. "What is the difference between a charter and a public school?"
Jumoke applied for the license in October, but Conover said the application is not complete. Pending applications do not mean an unlicensed program can continue to operate, Conover said.
Sharpe said the school had an understanding with the public health department that it could operate while it applied for the license, something Conover could not confirm, but said is "not our practice."
Now Sharpe considers his refusal to comply a fight against "unfair imposition from the government" and a lesson in civil disobedience.
The school's attorneys are hoping to lobby for a clarification of the law to allow charter schools to also be exempt from licensing requirements.
Reprinted with permission of the Hartford Courant.
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