Graphic reading: Local Superintendents Advisory Council, Sept. 27, 2022

The Local Superintendents Advisory Council (LSAC) approved 10 proposed regulations relating to public charter schools in Kentucky during its regular meeting on Sept. 27.

Updates to the regulations are necessary in order to conform to the requirements set by House Bill (HB) 9, a bill that modified Kentucky’s charter school law and set up a funding mechanism for charter schools. 

Kentucky Department of Education (KDE) Commissioner Jason E. Glass opened the meeting by addressing the political nature of the regulations that are being recommended to the Kentucky Board of Education (KBE).

“The regulations I have developed for consideration by the KBE represent KDE’s attempts as an executive branch agency to comply with the law we were given by the Kentucky General Assembly in HB 9 from the 2022 session,” said Glass. “Like many of you, I believe there are numerous constitutional uncertainties with HB 9.”

The proposed regulations included four amended regulations and one new ordinary regulation. There are also five identical emergency regulations which will become effective upon approval by the KDE and official filing. The purpose of the proposed emergency regulations is to meet the statutory deadlines required by HB 9 that would allow a charter school to open in the following school year.

KDE Associate Commissioner Kelly Foster and Matthew Courtney, policy advisor in KDE’s Office of Continuous Improvement and Support, presented the first eight proposed regulations to the LSAC.

Courtney said all amendments to the proposed regulations were made in order to align with the language in HB 9, and the changes do not exceed the requirements of the statute.

Proposed regulation 701 KAR 8:010 and its companion emergency regulation lay out the process of how a student would apply to attend a charter school. The proposed regulation was amended to add language to clarify “enrollment preference,” and resident and non-resident enrollment policies.

“Under HB 9, charter schools do have the ability to enroll students from other locations, but they must do so within their resident and non-resident policies,” said Courtney.

Proposed regulation 701 KAR 8:020 and its companion emergency regulation lay out how a charter school would apply to an authorizer and other requirements of the authorizer after application. An authorizer is the public entity responsible for oversight of the charter school. Amendments to the regulation included clarifying language to better align the regulation with the current statute. This includes removing language that allows the education commissioner to review and approve charter applications, since the commissioner no longer has that authority under HB 9.

“I feel there are multiple flaws in this statute and I feel that any district being required from an authorizer to take on a charter without any of their input is totally unconstitutional,” said Mike Borchers, superintendent of Ludlow Independent Schools.

Amendments to proposed regulations 701 KAR 8:030 and its similar emergency regulation include procedures for a charter school to appeal a decision made by an authorizer. 701 KAR 8:040 and its similar emergency regulation only included technical changes to align with HB 9 and did not include any changes to content.

Although LSAC approved these eight proposed regulations in order to meet the requirements of the current statute, most members said they do not support the creation of charter schools in Kentucky.

“I’ll make it very clear, I’m not in favor of charter schools, especially the way they’re written in statute. I do not believe, especially the way it’s set up in finances, … that they are constitutional,” said LSAC Chair Robbie Fletcher, superintendent of Lawrence County Schools.

“Unfortunately, as LSAC chair I don’t make those decisions, it is a judicial decision. So I think the decision before us today is, ‘Do we believe that the Kentucky Department of Education has met their requirement from statute in promulgating these regulations?”

Fletcher said he believed KDE met the requirement.

Proposed Regulations for Charter School Funding
KDE Associate Commissioner Robin Kinney presented LSAC with a proposed regulation and its accompanying emergency regulation regarding the funding of charter schools in Kentucky.

Kinney said that when charter school legislation was first passed in 2017, there were no provisions about funding. In the 2022 regular legislative session, HB 9 was passed and provided the charter school funding provisions.

Proposed regulation 701 KAR 8:050 and its companion emergency regulation are being brought forward to conform to the requirements of HB 9. Kinney said most of the proposed regulations refer back to the statute’s language.

HB 9 requires that the state board promulgate administrative regulations to govern: the calculation and distribution of funds that are due to public charter schools from school districts; the schedule of the distribution of those funds; and the imposition of fines for the late distribution of funds.

The statute requires that for the purposes of local and state funding, a public charter school will serve as a school of the district of location (DOL), or the district where the charter school is located. For federal funding, a charter school will serve as its own local education agency, which is a term primarily used by federal agencies to refer to local school districts.

Charter school students will be included in the average daily attendance (ADA) count for the district of location and also in the aggregate and ADA for transported students.

“Generally under SEEK (Support Education Excellence in Kentucky) funding, the charter school will serve as a school of the district where it is located and, for funding purposes, will act like any other public school in the district,” said Kinney.

Typically, when KDE calculates state funding, it refers to the school’s data from the previous school year. However, from the beginning of instruction through December of the first year of operation for a charter school, funding will be calculated based on a projection of the charter school’s enrollment and demographics and the DOL’s overall enrollment and demographics. Calculations will be adjusted in January of the first school year of operation to reflect the first semester’s actual data. The following years of operation will be calculated using actual data from the prior school year.

HB 9 also says the district of location is responsible for providing the charter school with its allotted SEEK funding, any additional funding provided for in the state budget, any additional funding provided for by KDE, and funding for at-risk students, exceptional child students and home-hospital students.

If a district provides transportation to charter students, then it will receive SEEK transportation funding just as it would for any other district-transported students. Districts and charters also could agree on transportation funding per the charter contract or a separate agreement. If charter provides transportation, then the DOL would transfer transportation funding to the charter. If it is not provided, then no transportation funding is transferred and transportation is not provided to charter students.

HB 9 says funds should be transferred by the DOL throughout the school year according to a schedule determined by the KBE and the scheduled dates must be within 30 days of when the funds are transferred to the DOL. If a district fails to transfer required funds to the charter school, the district will be fined the amount of 5% of the funds that are to be transferred.

While much of the proposed regulations on charter school funding refers to language used in the statute, KDE added language related to deadlines. As a condition of receiving funding beginning in the 2024-2025 school year, the charter school must have an approved contract prior to Feb. 1 before the charter school’s first instructional year.

The proposed regulation also requires that with the assistance of KDE, the DOL must provide the charter school with a written estimate of the projected funding that will be due to the charter school through December. of the first instructional year, on or before Feb. 1 preceding the charter’s first instructional year.

The LSAC approved the regulations with a vote of 7-1, but many commented that although they approved the required regulations, they strongly oppose the creation of charter schools.

“I do believe the language KDE has shared with us today meets the requirements outlined by the statute and what’s presented in House Bill 9, but I do believe the funding measure is flawed,” said Green County Schools Superintendent Will Hodges.

The proposed regulations will go before the KBE for approval during its regular meeting on Oct. 12.