Waivers, Waivers Everywhere

A couple of weeks ago, I provided a rundown of the legislation still pending in the 2016 legislative session’s busy final days. One of the bills lingering out there is HB 16-1343, which seeks to eliminate automatic waivers for charter schools. As I’ve said before, there is little danger that the bill will survive. But that won’t stop the teachers union and its allies from using it as an opportunity to pontificate about those evil, nasty, no-good charter schools.

And pontificate they have. CEA has published all manner of charter-related ugliness on its Twitter account, and has supported 1343 on its website. More recently, the often icky Colorado Independent jumped on the bandwagon with an article accusing charters of “dodging Colorado laws”—likely after all the more credible news outlets declined to become mouthpieces for union propaganda.  But hey, I guess some folks have to take what they can get.

Anyway, the Independent article focuses on the union’s central messaging plank: That the waivers granted to charter schools create an unfair ability to shirk legal requirements that other schools have to follow. Why do charters deserve equal funding, they ask, if they don’t have to play by the same rules as traditional public schools? Traditional public schools do not have a way to waive out of these requirements, after all. Right? Wrong. Let’s talk.

The union’s entire argument is predicated on the idea that charters alone are able to receive waivers from state law and district policy. As it turns out, that’s a pretty shaky platform. To understand why, you’ve got to understand the waiver system in Colorado and how it works.

We often simply refer to public charter schools as public schools with more autonomy. The wonky truth is that this autonomy comes in the form of certain waivers they receive from the Colorado State Board of Education and their local school boards. In the case of waivers from state statute issued by the State Board, 18 are granted automatically. Those waivers are:

Why are these waivers granted automatically? Because basically every single charter school in Colorado requests and receives them. Individually handling waivers that are, for all intents and purposes, universally applied for and approved costs a lot of unnecessary time, paperwork, and taxpayer money. As a result, the state experienced a rare moment of lucidity in 2014 in which it actually decided to—wait for it—eliminate inefficient bureaucratic procedures as they relate to education. The State Board adopted the list of automatic waivers, and off we went.

Charters can—and often do—apply for other waivers, as well, but those requests must be reviewed individually, and are not granted automatically. Some waivers, automatic and non-automatic, are issued by local school boards for local policy. The Independent article spends a great deal of time harping about these locally granted waivers, apparently oblivious to the head-popping hypocrisy required to simultaneously shriek that while the state can’t tell districts to fund students fairly, it can and should tell local school boards what they are and are not allowed to waive under locally adopted board policy.


Setting all that silliness aside, what is on the automatic waivers list that has the union so worried? I can’t imagine many people breaking out the pitchforks in defense of local board duties concerning competitive bidding, determining teacher-pupil contact hours at the school level, procuring insurance, observing holidays, or setting attendance policies. And charter schools being able to determine their own educational programs is sort of the whole point of charter schools.

I suppose some folks who aren’t paying much attention could get fired up about the waiver related to the acceptance of gifts, grants, and donations by local school boards—a waiver that kind of makes sense when one considers that charters are governed by their own boards of parents, teachers, and community members. Those folks would be very disappointed to learn that recent research thoroughly debunks the notion that charter schools are raking in untold bagillions of philanthropic money, finding that only about 2.6 percent of Colorado charter revenue comes from philanthropy. They would likely also be distressed to discover that traditional public schools and districts collect philanthropic money all the time. Don’t believe me? Give the folks at the Denver or Jeffco district foundations a ring.

I don’t see the big issue with many of the automatic waivers. However, I can easily see why an organization that makes its money on teacher membership would detest anything that creates the possibility of employment and teaching that falls outside its realm of control.

You see, one of the most important parts of charter schools, and one of the most often cited reasons for their success, is their ability to control their personnel policies. Thanks to waivers, charters have the authority to hire and fire whomever they please within the bounds of the law, avoid the nastiness that comes along with teacher tenure, and adopt pay systems that do not simply copy-paste the typical (and woefully outdated) steps-and-columns pay scale used by most districts. In nearly all cases, they do not need to bargain with a teachers union. And that drives the union nuts.

But here’s the good news: Traditional public schools don’t have to play on an “uneven playing field” when it comes to waivers. With only a couple of possible exceptions, they can apply for all these waivers (and more) themselves.

Wait, what? Yes, you read that right. Colorado has this little thing called the Innovation Schools Act, which allows schools and zones of schools and even entire districts to obtain waivers from state statute and local board policy. As matter of fact, a whole bunch of traditional public schools and districts have already made waived out of a veritable raft of statutes and policies—including many of those waived automatically and non-automatically for charters. (Will the Independent also be publishing an article about these neighborhood schools’ despicable attempts to “dodge Colorado law”?)

To add a little icing to the cake, schools and districts can also apply for waivers outside of the Innovation Schools Act, providing yet another pathway to that level playing field the union and its supporters keep talking about.

CDE even goes out of its way to let traditional public schools know that they can be granted the autonomy of charter schools, saying in a fact sheet:

An Innovation School that wants to operate with the freedoms available to charter schools could request the same waivers that are automatically granted to charter schools in Colorado, plus additional waivers that might be required to implement the planned innovations. For a list of the automatic waivers that charter schools in Colorado receive, visit http://www.cde.state.co.us/cdechart/waivers.

This news should make the folks down at CEA ecstatic. Traditional public schools can apply for the same freedom as charter schools! In cases where collective bargaining agreements are affected, all CEA and its local affiliates have to do is convince 60 percent of affected unionized teachers to agree to new, exciting innovation plans. Then they’ll finally be free of all those pesky requirements they’re always moaning about.

Granted, these waivers aren’t given automatically. But hey, if CEA would be supportive of automatic waivers giving neighborhood school leaders more control over hiring and firing, promoting modern pay systems, and functionally eliminating the need for hundred-page collective bargaining agreements, I’d be happy to help.

Unless, of course, more autonomy and an environment in which all schools have the freedom to innovate isn’t really what the union or its allies want. Food for thought, friends, food for thought.