Open enrollment charter schools, which last year received up to $2.5 billion in taxpayer funds in Texas, are immune from a law that all public schools must follow, requiring them to make public the terms of important contracts.
“Charters are just not held as accountable as we are, and any time they bring up accountability for charters in [the] legislature, there is an element that steps on it,” said Troy Reynolds, an educator and advocate for Texas public schools.
The provision requires that public entities report all contracts that must be approved by a governing board or that are worth more than $1 million.
The law, passed in 2015, requires government entities to file a form, called a 1295, divulging such contracts. Texas charter schools have so far skirted the requirement with no complaints.
That exception is based on a series of opinions and court rulings, starting with a 2001 state attorney general opinion, holding that open enrollment charter schools — schools that are free and operated by a nonprofit under a contract with the state — are not government entities and therefore not subject to the same disclosure rules as public schools.
In that opinion, the AG’s office said, “An open enrollment charter school is not a district, county, municipality, precinct, or other political subdivision of this state.”
That opinion was supported by a state Supreme Court ruling in April that found an open enrollment charter in Houston was not subject to the state’s whistleblower law.
The apparent carve-out for charter schools is one more beef public schools have with the growing charter movement in Texas, which is backed by some of the most prominent Republicans in the statehouse.
Charter schools have most of the same reporting requirements as public schools, said Christine Nishimura, an attorney with the Texas Charter Schools Association.
“Charter schools are subject to the state’s open records law,” Nishimura said. “It’s not that they are trying to hide things, such as these  contracts. If anyone wanted to see them, they could be obtained through a public records request.”
State Sen. Kelly Hancock (R-North Richland Hills) added that “Charters operate under a different statute. But there is a reason they may want to keep this stuff private, considering public schools are already trying to hold certain vendors hostage for doing business with them.”
Hancock referred to a March story by Texas Monitor that reported public school districts have sought to exclude lawyers and financial services firms from contract consideration if they did business with charter schools.
The 1295 reports are maintained in a searchable database by the Texas Ethics Commission, where a staff attorney confirmed that charter schools do not have to report via 1295 filings as other public entities do.
State Rep. Giovanni Capriglione, (R-Southlake), who authored the original measure in 2015, filed what he called a “cleanup bill” in 2017 that would have specifically included open enrollment charter schools as government entities.
“I think it is a very important piece of legislation today,” Capriglione said in introducing the bill last session. “Almost 100,000 contracts are available to the public, so that they can go and they can see how their government dollars are being spent. And I think that’s critically important. And it’s all available right on TEC’s website.”
But he never mentioned the inclusion of charter schools as part of the cleanup. No one asked. The bill died quickly.
Joe Larsen, an open records lawyer in Houston, said it’s likely that charters schools were intentionally left out of the 2015 legislation due to political wrangling.
“Legislators are presumed to know the current interpretation of the statutory framework when they pass new laws,” he said. “They would know the government code did not apply to charters, and it was pretty plain that the same interest that prevented the charter schools from being expressly referenced no doubt prevented it from being implemented in 2017.”
Capriglione did not return calls for comment on this story.
Making open enrollment charters subject to the same rules as any other government entity would make sense, said former state Sen. Leticia Van de Putte, a San Antonio Democrat who spent 22 years in the statehouse, including seven sessions on the Senate education committee.
“What I found in all charters is that parents really wanted to know how their schools were being run,” Van de Putte said. “This is something lawmakers are going to figure out.”
Public education advocates look at the reporting discrepancy as one more edge the state’s political leaders have given charter schools.
“The public has very little representation or oversight of these charters,” said Reynolds, an administrator in the Splendora school district north of Houston and founder of Texans for Public Education, one of a number of groups that advocate for public schools.
He said it would be a tough road to get charters to be recognized as government entities.
Steve Miller can be reached at [email protected].