published Monday, January 16th, 2012

Hole found in Hamilton County charter school law

President and Executive Director of Smart Schools Inc. Tommie Henderson plans to turn his new charter school specializing in business and law into a model of modern education.
President and Executive Director of Smart Schools Inc. Tommie Henderson plans to turn his new charter school specializing in business and law into a model of modern education.
Photo by The Commercial Appeal /Chattanooga Times Free Press.
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The application process for a local charter school exposed a "gaping hole" in state law governing the procedure, a hole that could affect whether the application ultimately is approved or denied, a state official said.

The finding has left state officials asking for clarification from the attorney general and the Tennessee General Assembly.

Questions surfaced during the application process for the New Consortium of Law and Business, a proposed Hamilton County charter school. The first application was denied by the Hamilton County Board of Education in November after district administrators recommended rejecting the proposal.

Then, on Dec. 27, administrators recommended approval of an amended application. But with three absent members, the measure received a 4-2 vote, failing to get the necessary five for passage. Board members David Testerman and Everett Fairchild -- the two "no" votes -- cited their concerns with the charter approval process and the merits of charter schools in general.

State law says an initial application to a local board automatically is approved if no action is taken. But the law is vague on what happens during the second round, when an amended application is submitted, officials said. Because the amended measure didn't receive five votes in December, legally no action took place.

"We believe we were neither denied nor approved. We believe, based on the law, that what happened, is nothing occurred on Dec. 27," said Tommie Henderson, the man trying to open the business and law high school here. "The board voted, but it didn't make a decision in the case of our charter school application.

"The state law requires that our application be approved or denied by resolution, and we were neither approved nor denied by resolution," he said.

The legal question made it to the state Board of Education, which also found the law vague.

"We recognize that there is a gaping hole in the law as it concerns inaction on an amended application," Tennessee Board of Education General Counsel Dannelle Walker told Henderson in an email.

"In the way they transacted business, they did not approve or deny the application," Walker said. "However, there is no clear language as far as what happens when a charter is neither approved nor denied on the amended application."

Walker said the state board will ask for an opinion from the attorney general on how to proceed in future cases. The board also will ask the legislature to clarify language in the current law, she said, though that likely won't happen until the 2013 session.

She said she was unaware of the issue with the law until New Consortium brought it forth.

"They're the perfect example of why this language needs to be added in there," she said.

Hamilton County Schools Superintendent Rick Smith said he believes the board did act at the December meeting.

"The point is that the item was on the agenda," he said. "It just failed to get enough votes to be approved."

He said the timeline for charter school consideration is part of the larger issue at play. Applications are due Oct. 1. With 60 days to consider, boards usually vote around Thanksgiving on the first application. That means the amended application usually must be voted on around Christmastime.

Smith said an earlier timeline wouldn't conflict with the holidays and would help ensure that more board members are present.

"You really get yourself in a bind with the holiday season," he said. "That's exactly what happened this year."

NEXT STEP

The state board will allow Henderson's group to appeal the decision, Walker said, moving ahead with the assumption that the application was denied. Normally, a rejected charter applicant has a right to an appellate hearing with the state board, which can overturn the local board's decision.

The hearing for the New Consortium of Law and Business should be set within 60 days of the Dec. 27 meeting, she said.

Henderson said he's fine with that decision, though he wondered how he could appeal a decision that never legally occurred. He also said he's concerned about what happens if either his group or the Hamilton County school district chooses to take legal action following the state board's decision.

"What happened in Chattanooga on Dec. 27 created a pretty squirrelly chain of events," he said.

While it's been a confusing set of circumstances, Henderson said he's encouraged by the local board's action.

"We're so completely enthusiastic that the majority of the board members who were there were supportive of our application," he said. "It was more of their concerns about the process, which I would have to admit in this particular situation there does seem to be a need for a law that is more prescriptive."

about Kevin Hardy...

Kevin rejoined the Times Free Press in August 2011 as the Southeast Tennessee K-12 education reporter. He worked as an intern in 2009, covering the communities of Signal Mountain, Red Bank, Collegedale and Lookout Mountain, Tenn. A native Kansan, Kevin graduated with bachelor's degrees in journalism and sociology from the University of Kansas. After graduating, he worked as an education reporter in Hutchinson, Kan., for a year before coming back to Chattanooga. Honors include a ...

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