It isn’t often that a government agency sandbags a program that Congress has entrusted it to execute. But that’s the case with the Department of Education (DOE) and the federal Charter Schools Program. Instead, DOE has radically upended its own process to make it harder, if not impossible, for most would-be charter schools to receive the federal funding that is supposed to support their creation or expansion. It’s a violation of the constitutional separation of powers. Congress needs to step in and correct it.
Congress should not sit idly by while the Biden administration destroys a successful grants program for disadvantaged children and families. The Congressional Review Act (CRA) allows the Senate and House an opportunity to review rulemaking. In recent years, it’s been used successfully to roll back burdensome regulations. A rare bipartisan Senate recently passed a CRA bill to end the administration’s overreach with vaccine mandates.
Some in Congress are trying to do the same here. Sen. Tim Scott (R-S.C.) and Rep. John Moolenaar (R-Mich.) have proposed CRA bills in their respective chambers to halt this rule change and allow the successful charter school grant program to continue unabated.
President Bill Clinton first proposed the charter school program in 1993, and Congress passed it in 1994. The program was further strengthened in 2015 by Congress in the Expanding Opportunity Through Quality Charter Schools Act, signed by President Barack Obama. The title speaks for itself: the Education Department is to distribute hundreds of millions of dollars in grants each year, most of which are for “supporting the startup of new charter schools, the replication of high-quality charter schools, and the expansion of high-quality charter schools.”
The DOE violated Congress’s statutory command to “increase the number of high-quality charter schools available to students across the United States” and adopted a rule for distributing those funds that would make it much more difficult for charter schools to receive the funding intended. First, the rule requires applicants to demonstrate proof of community need due to over-enrollment of existing local schools or specific collaboration with existing public schools. These requirements are not only unauthorized by the funding statute, but they also ignore the reality that charter schools strive for innovation and often face hostility from local districts who oppose alternatives to their failing schools.
The rule also requires that the new or expanded charter schools must match the racial balance of the community. The DOE knows that in many jurisdictions, minority students are served by charter schools at a higher rate than in run-of-the-mill public schools. This application requirement is designed to prevent charter schools from serving those communities most in need of school choice.
Moreover, this rule change lies beyond the authority of the department. The original statute does not delegate to the department the ability to reset the priorities or add requirements to funding. Additionally, the rule was not issued by a proper officer of the United States but instead by an unelected employee of the DOE.
The Michigan Association of Public School Academies (MAPSA), represented by Pacific Legal Foundation, has taken the Biden administration to court over the rule. MAPSA is among tens of thousands of groups and individuals who submitted comments in opposition to the final rule during the (abnormally brief) comment period.
The Constitution demands that the DOE’s regulations on the charter school grants program carry out what a bipartisan Congress enacted, rather than what President “Not a Charter School Fan” Biden wishes the law said. The CRA bills are an important step for Congress to reclaim its proper place in the constitutional separation of powers as the lawmaking body of government.
In many communities, the standard public schools are failing low-income and disadvantaged children, and an alternative is desperately needed. Over three decades, two past Congresses, with bipartisan support, passed bills to financially support the growth of charter schools throughout the country. The current Congress must maintain that policy and halt an overzealous executive branch that does not respect its constitutional limits.
This op-ed was originally published at The Hill on September 19, 2022.