Active: Federal lawsuit challenges Biden administration’s illegal rulemaking

For many children, charter schools can provide an escape route, or at least a high-quality alternative, when traditional public schools fail them. Research consistently shows that urban charter schools outperform traditional public schools.

A growing cast of celebrities and professional athletes are embracing the educational opportunities charter schools provide for disadvantaged children. Pitbull, Jalen Rose, P. Diddy, and Common are among the stars who started their own charter schools in the poor neighborhoods where they once lived.

Such success prompted Congress to significantly expand the federal Charter Schools Program in 2015. With broad bipartisan support, lawmakers appropriated hundreds of millions of dollars for annual grants to increase the number of high-quality charter schools. Congress also gave the Department of Education clear instructions and criteria for distributing the funds: the degree to which the school has demonstrated success in increasing achievement for all students, including all disadvantaged students.

President Biden, however, made it clear during his campaign that he is “not a fan” of charter schools. And Biden’s Department of Education has taken steps that amount to a declaration of war on charter schools.

The agency started with the way charter school grants are distributed. They completely circumvented Congress and issued a new rule with new criteria that make the grants exponentially more difficult to get.

One new requirement is proving a community need, including demonstrating over-enrollment in existing schools, or showing collaboration with local school districts. Charter schools thrive in part because they foster innovation and competition among schools. Failing public schools that lose students to charters can hardly be expected to voluntarily collaborate or promote charter schools’ efforts. That essentially lets existing schools veto the existence of their competitors. And the children who benefit shouldn’t have to wait until their school is over-enrolled in order to escape.

Charter schools also must not exceed the racial balance of their community. This means that applicants will be disadvantaged if they have too many students in any particular racial group, which effectively punishes those schools that seek to serve primarily minority students.

The result of these requirements is to deprive deserving students of innovative educational opportunities that would otherwise give them a lifeline out of chronically failing public schools. It is wrong to force these students into schools that won’t serve their educational needs. And it is unconscionable for an administrative agency to do so in defiance of federal law and abuse of the regulatory process.

The Department of Education has no authority to contradict Congress’ directive to create more high-quality charter schools.

The agency also illegally cut corners on federal rulemaking by deploying an unauthorized, low-level career bureaucrat to issue the rule and severely truncating the notice and comment period.

Even with a comment period unreasonably shortened to just 35 days, the proposed changes drew comments from an unprecedented 26,000 unique commenters. Pacific Legal Foundation pointed out the serious problems with the agency’s rulemaking rush job. Undeterred, the agency pressed ahead, and the rule took effect on August 5, 2022.

Now, Michigan’s Charter School Association and The Thomas B. Fordham Institute, a nonprofit charter school authorizer that supervises 13 charter schools in Ohio, are fighting back. Represented free of charge by PLF, the groups are challenging the Biden administration’s open attack on charter schools through illegal grant criteria to protect the right to educational opportunities for all children. 

What’s At Stake?

  • The Biden administration’s frontal attack on public charter schools is a disservice to students across the country. Charter schools provide educational opportunity to students who may otherwise be forced to attend failing schools.
  • The Biden administration has directly violated the obligations imposed by Congress. The Department of Education cannot ignore Congress and illegally rewrite rules they don’t like.

Case Timeline

August 08, 2022