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Abstract

Given the recent increase in charter schools as an alternative to the traditional public education system, this Article explores the legal status and position of charter schools. Charter schools exhibit many characteristics of private schools, particularly in terms of management, but also retain many public school features. Thus, this Article explores areas of the law where charter schools were either classified as public or private in terms of state statutes or regulations, discussing recent and some pending litigation. First, this Article discusses whether charter schools, charter school boards and officials, or educational management organizations which manage charter schools are entitled to governmental immunity, thus classifying them as public entities. Second, this Article examines the interplay between charter schools, their boards, and their management organizations and whether they are subject to public accountability laws, as their public school counterparts are. Third, this Article surveys whether charter schools are subject to state prevailing wage statutes. Fourth, this Article examines whether charter schools are required to follow the same student expulsion requirements as public schools. This Article proceeds to tally the results of this litigation, discussing both whether charter schools are subject to the same laws and regulations as public schools in their districts and whether charter schools and their officials are public entities under the law, and thus subject to the same rules governing the action of public officials. This Article concludes that often times, this distinction is not clear in state statutory requirements as they currently stand, and that legislators should take care in drafting charter school legislation, so that charter schools have a clear set of rules to follow and courts have a clear set of rules to apply in litigation. The status quo is particularly troubling with regard to student disciplinary issues and educational management organizations’ fiduciary obligations, and this Article urges legislators to address these issues.

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