NC Court of Appeals weighs virtual charter school case

ablythe@newsobserver.comAugust 14, 2013 

— Three N.C. Court of Appeals judges had lots of questions Wednesday for lawyers arguing whether a controversial charter school that planned to only offer online classes should have been allowed to open last year.

At issue was whether the N.C. Virtual Academy, a school proposed by N.C. Learns, needed approval from the state Board of Education.

N.C. Learns, a nonprofit organization backed by K12 Inc., a for-profit company that has become one of the biggest players in the online education business, used an unusual process to try to open the state’s first virtual charter school. In early 2012, N.C. Learns won approval from the school board in Cabarrus County, near Charlotte, to set up an online charter school that would have drawn students from across the state.

The State Board of Education never voted on the project, opting at the time to take a pass on a proposal that raised vexing issues about online learning, funding formulas and quality control for students being educated with public dollars outside brick-and-mortar classrooms.

A state “E-Learning Commission” was considering new policies to govern such ventures and had put a freeze on all applications until procedures were determined. In January, nearly a year after the N.C. Learns proposal was put forward, the state Board of Education adopted guiding principles for virtual charters.

At least one application is under review, according to state school officials, but the N.C. Learns supporters are pursuing their case in the courts.

A Wake County judge ruled in June 2012 that N.C. Learns could not open its school in North Carolina without approval from the state Board of Education. Judge Abe Jones overturned an earlier decision by an administrative law judge who said the school could open because the state school board “had failed to act” on N.C. Learns’ proposal.

N.C. Appeals Court Judge Wanda Bryant said on Wednesday that she had difficulty understanding how an administrative law judge could rule on such a sweeping concept without considering the actual application of the school.

The program would have been based in Cabarrus County, but hoped to pull in as many as 2,750 students from across the state the first year.

“I just find that amazing that the ruling was about an application that was never reviewed,” Bryant said.

“This would be the first time that the approval, monitoring, and oversight of a charter school would be vested solely in a single, politically-elected, local school board, including the oversight of all curriculum, fiscal matters, attendance, federal programs, and compliance with all laws and regulations,” assistant state attorney general Laura Crumpler wrote in a court filing.

Attorneys for the charter school proposal, which if approved would have offered online courses for students from kindergarten through high school, contended the state school board “erred in not making a decision.” They argued that Jones’ decision in Wake County Superior Court should be overturned.

But lawyers for the state school board argued that Jones was right. They contended that a school board decision was made when the officials put a moratorium on nontraditional charter school applications in October 2011.

Cabarrus County was the only school district that supported the idea. Eighty-nine of North Carolina’s 115 public school districts joined under the umbrella of the N.C. School Boards Association to bolster the state Board of Education’s legal challenge of the charter.

The three-judge state Court of Appeals panel did not issue a ruling at the hearing. Decisions can take from weeks to more than a year.

Blythe: 919-836-4948

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