By Jennifer Braster
Special Feature: CLE Article #18*
A few years ago, I was approached to be on the board of a potential charter school to open in downtown Las Vegas. Candidly, I knew very little about charter schools and how they differed from other types of schools. But, having always been an advocate for equality and choices in education, I was intrigued. Now, I am proud to say we are wrapping up our second year of operations for Sage Collegiate Public Charter School at the former Elks Lodge on Charleston Boulevard.
People are often confused over whether a charter school is a public school, private school, magnet school, or some combination of the three. Charter schools are their own unique model. In 1997, the Nevada Legislature authorized charter schools. Now there are over 90 charter schools in Nevada.
Charter schools are public schools, are completely free, and are open to all students like traditional public schools. The difference is a potential charter school must “apply” to have their charter approved by the governing body, the Nevada State Public Charter School Authority (the “Authority”). While in the last several years the Authority has typically been the only authorizer actively accepting applications for new public charter schools, that stands to change with the passage of new legislation in 2023. AB 400 granted cities and counties the ability to authorize public charter schools as well, and the Nevada Department of Education is currently establishing an application process and framework for these new authorizers.
Potential charter schools go through a rigorous approval process, comprised of a lengthy and intricately detailed application for the “committee to form a charter school,” as well as interviews by the Authority of the potential principal or executive director of the school and proposed board members. NRS 388A.246 contains 37 different areas that must be contained in the application. These include detailed plans for academics, teacher evaluations, measuring performance, enrollment, finances, budgeting, size, and facilities, for example. The committee to form a charter school must include at least one teacher or school administrator as a board member, and at least two members in the areas of accounting, financial services, law, or human resources.
If approved, the charter school enters into a “contract” with the Authority and its operations are governed by that contract. With limited exceptions, charter contracts are for six years. Charter schools must follow the framework set forth in their charter, such as the size of the school, grades offered, length of school day, and their mission or focus. Once the application is approved, the governing body of the charter school, often called the board of trustees or directors, also must include a parent or legal guardian of a pupil enrolled. The Authority is tasked with oversight of Nevada’s charter schools, ensuring compliance with Nevada laws, adherence to its charter contract, and fiscal responsibility. The Authority requires regular and in-depth reporting by each charter school. If a parent or guardian has a complaint regarding their child’s charter school, they could submit a complaint with the Authority for investigation.
Neither the Clark County School District Board of Trustees nor CCSD’s Superintendent have jurisdiction over charter schools. Charter schools do not report to the Board of Trustees, but instead report to the Authority. A charter school may be part of an overall charter management organization or an independent school.
Charter schools within Nevada have diverse student populations and focuses, including schools established for collegiate preparatory, solely online instruction, geared towards student athletes, and for older high school students with non-traditional educational paths. Other charter schools concentrate more on vocational programs. Charter schools may deviate from the requirements of traditional public schools, providing for more school choice in Nevada.
Charter schools, like traditional public schools, receive funding on a per pupil basis. However, unlike traditional public schools, they do not receive facility funding (which comes from property taxes) and usually the facility funding is one of the biggest issues facing charter schools.
The governing body of the charter school must meet at least quarterly, and the meetings are public and subject to open meeting laws. The principal or executive director of the school reports to the governing body, which is tasked with ensuring compliance with the school’s charter and fiduciary oversight.
Pupils are admitted to charter schools on a lottery basis, with certain preferences given to children who are deemed at risk, in a high-risk area, or zoned for a one- or two-star school. Charter schools may not charge fees or tuition for enrollment or otherwise give preference to potential families who donate. Charter schools must remain nonsectarian and are governed by the same laws and regulations regarding discrimination as traditional public schools. As with traditional public schools, by law, charter schools must accommodate students with IEPs or individualized education plans or programs.
Teachers at charter schools are considered public employees in that they receive PERS (Public Employees’ Retirement System) benefits, much like teachers at traditional public schools. However, unlike teachers of the district, charter school teachers are not unionized nor are the charter schools governed by any collective bargaining agreements. Each charter school can set the terms and conditions of employment, including salaries and PTO.
NRS Chapter 388A and NAC 388A govern the operations of charter schools. Various legal issues and problems have arisen in the short history of charter schools in Nevada. For example, recently, litigation ensued between the Authority and a potential charter school when the charter school’s application was denied. Nevada law prohibits an existing public school or home school from converting into a charter school. Further, charter schools may not be supported or affiliated with any religious organization. Thus, if it appears that an existing public or religious school is simply trying to convert to a charter school, that is a basis for the denial of the charter application. In recent years, the Authority has denied the application of potential charter school that sought to operate at a closing religious-based lower school, resulting in litigation.
Other issues have recently arisen over the financial wherewithal of a local charter school and its compliance with NRS Chapter 388A. For example, the majority of the board of this school resigned, leaving one board member, which is in violation of Nevada law. The Authority learned the school did not pay into PERS for several months, leaving a large liability. If the school’s enrollment dips too low as a result, this also could lead to issues if the enrollment is not within the parameters of the charter contract. The Authority has been actively monitoring and at this stage, it remains to be seen if the school can right its ship.
Other legal issues arise when charter schools need to apply for an amendment to their charter contract, such as modifying the years of schooling offered, location of the school, or number of students. Perceived unequal approvals of charter contract amendments has led to further litigation over the reasonable application of NRS Chapter 388A and NAC 388A.
Having only been operating in Nevada for a relatively short time frame, there is a dearth of case law and legal authority over the application of various provisions of NRS Chapter 388A and NAC 388A. There are also very few practitioners who specialize in this niche area of law, which encompasses transactional work, administrative law, and litigation. It is a burgeoning practice area and will likely continue to expand with the passage of AB 400, permitting cities and counties to authorize charter schools. It remains to be seen how AB 400 will impact the expansion of charter schools in Nevada and the current oversight by the Authority.
About the author
Jennifer Braster is a managing partner with Naylor & Braster, a boutique commercial litigation firm. Jennifer is also the board chair for Sage Collegiate Public Charter School, a K-8 collegiate preparatory charter school that opened in August 2022.
About the article
© 2024 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.
This article was originally published in the Communiqué (Aug. 2024), the official publication of the Clark County Bar Association. See https://clarkcountybar.org/about/member-benefits/communique-2024/communique-aug-2024/.
The articles and advertisements appearing in Communiqué magazine do not necessarily reflect the opinion of the CCBA, the CCBA Publications Committee, the editorial board, or the other authors. All legal and other issues discussed are not for the purpose of answering specific legal questions. Attorneys and others are strongly advised to independently research all issues.
*About the CCBA’s Article #18: “Understanding Nevada Charter Schools and How They Differ from Traditional Public Schools” offers 1.0 General Continuing Legal Education (CLE) credit to Nevada lawyers who complete the test and order form per the offer described in the August 2024 issue of Communiqué. See pp. 26-31. The CCBA is an Accredited Provider with the NV CLE Board.