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Joy Hofmeister, Oklahoma’s state superintendent of Public Instruction, speaks Feb 22 during the IMMY vaccination clinic at Embassy Suites.

The state Board of Education came to an unexpected resolution in a four-year-old charter school funding lawsuit Thursday in a move the state superintendent and their attorney say sidesteps the Legislature and violates the state constitution.

The resolution, approved by a 4-to-3 vote, allows charter schools to tap into several state and local revenue streams previously off limits to charters, including general fund, building fund and county levies. Currently charter schools only receive state appropriated funds.

Joy Hofmeister, superintendent of public instruction, delivered a strong rebuke before voting no on the measure.

“Based on legal advice, this violates Oklahoma statute, Oklahoma constitution, and the oath that I swore to uphold when I took office and I do not support this nor do I think the board should vote to approve this settlement, which came in yesterday,” she said.

A discussion of the lawsuit, brought against the board in 2017 by the Oklahoma Public Charter School Association, was placed on the agenda for Thursday’s meeting as a routine update to the board, Hofmeister told Oklahoma Watch on Friday. That evening, Norman attorney Bill Hickman, representing the association, sent over the proposed settlement.

Hofmeister said she and general counsel Brad Clark advised the board that the offer had to be rejected because it violates the constitution, state statute and circumvents the legislative process.

Board members moved forward anyway. Trent Smith, who joined the board in January, made the motion to approve; joining him in voting yes were Brian Bobek, Jennifer Monies and Estela Hernandez. Voting against the resolution were Hofmeister, Bill Flanagan and Carlisha Bradley.

Monies, who also serves on the John Rex Charter School board, said she voted for the resolution because every public school student should have access to the same public funding.

“Federal, state and local taxes are paid, in part, to provide a free public education for all students. How that funding is divvied up should not be a complicated formula no one understands that is dictated by the type of public school a child attends. That is an outdated way to fund public schools,” she said.

The board’s action came as a surprise even to Chris Brewster, president of the charter school association.

“I didn’t expect it to come through in this manner,” he said Friday. “I really thought we had to go to a lawsuit to resolve it. and I’m always pleased when you don’t have to go to the courts over something like this.”

Brewster, the superintendent of Santa Fe South charter school, said he’s used to being used as a “political football” for decades and he recognizes that the board’s decision carries a lot of political weight.

He also expects the resolution to be challenged but that, ultimately, it will be found legal and constitutional.

In the lawsuit, the association claims the board is improperly interpreting the Oklahoma Charter Schools Act and that the legislature intends to equalize funding between all public schools to assure equal educational opportunities. Charter schools are public schools that are independently operated; their boards are appointed, not elected.

The association points to language in the act that states charter schools are to receive state aid and “any other state-appropriated revenue,” and that such schools are eligible for “any other aid, grants or revenues allowed to other schools.”

The board, though, says originally, the Charter School Act specified that charter schools were to receive per student funding that included local, county, and state funds. In 2006, the legislature amended the act and only left in “state aid revenue.”

And though the legislature has amended the act several times since then, the portion on funding has remained unchanged.

State statute also specifies that charter schools “shall not levy taxes or issue bonds.”

In allocating state aid, the department first considers a district’s other sources of revenue and provides an amount meant to equalize. That’s why charters, which don’t receive local funds, currently have an outsized impact on the state budget; they receive more from the state but not more overall. If charters are allowed to tap into the additional revenue streams, it should reduce their state aid, so the overall impact on education funding is unclear.

Other states do allow charter schools to receive local tax revenue, but the proposals are passed through a state question to amend the constitution or through legislative action.

Hofmeister said when the state board approved the resolution on Thursday, they sidestepped that process. All education board members are appointed by the governor, except for the superintendent, who is elected and serves as the chair.

“It’s an impatient move to get what you want. and that is not our role, operating as the state Board of Education. We are to operate for the good of all under state statute and the constitution,” Hofmeister said.

This year, there are 81,739 Oklahoma students enrolled in a charter school, 11.8% of the total student population. About 60,000 attend Epic Charter Schools.

The way the resolution is written, statewide virtual charter schools would be eligible for the local and state revenues.

Oklahoma Watch is a nonprofit, nonpartisan media organization that produces in-depth and investigative content on a range of public-policy issues facing the state. For more Oklahoma Watch content, go to oklahomawatch.org.

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