Due to a quirk in state law, roughly 10,000 mostly low income and minority kids in New York City are being denied the charter school seats their parents covet for them.

The Board of Regents isn’t authorizing any new charter schools to operate in Gotham even as the total currently authorized to operate is 20 under the statutory ceiling. Meanwhile, at least 48,000 kids languish on waiting lists.

The Charter Schools Act caps the number of charters issuable to these privately managed public schools to operate in the city’s boundaries. But 20 of them belong to schools no longer operating. These unused licenses in limbo are known as “zombie charters.”

If the zombie charters were re-issued, about 10,000 kids could move from waiting lists to the school of their choice, assuming the new schools resemble in size the city’s existing ones, whose average enrollment is 515 students.

New York City is home to the vast majority (272 of 331, or 82 percent) of the charter schools currently operating in the state. More than 90 percent of charter students in the city are Black or Hispanic, and 79 percent are economically disadvantaged. For the 2019-20 school year, there were 81,000 applicants for 33,000 charter school seats in the city, according to a New York City Charter School Center analysis.

New York State’s charter schools are tuition-free public schools that receive local, state and federal funds —albeit less than traditional public schools. Charters are open to all students eligible for other district schools. But in exchange for operational freedom, they must show gains in student achievement and otherwise comply with their charter, or risk being closed.

The primary purpose of the state’s charter schools, per the Charter Schools Act, is to “improve student learning and achievement” and increase educational opportunities for students —especially those “at-risk of academic failure.”

By any measure, those missions are being achieved.

First, parents are voting with their feet. Enrollment in the state’s charter sector has risen over time — even over the past two pandemic-plagued school years, as traditional public-school enrollment plunged five percent. Since the pandemic’s onset, the state’s charter enrollment rose by 14,502 students, from 159,211 to 173,713, according to preliminary state enrollment data for the 2021-22 school year. And that growth comes despite the cap.

Second, not only do New York’s charters overwhelmingly serve economically disadvantaged minority students —they serve them well. In New York City, Black and Hispanic charter students, and those from low-income families, score significantly higher than their traditional school peers on proficiency exams in English language arts and mathematics. In Brooklyn and the Bronx, where two-thirds of the city’s charters are located, charter attendees greatly outperform their peers.

The Charter Schools Act puts operational restrictions on charters, and guardrails around their growth, via separate caps on the number of charters that can be issued in New York City and in the rest of the state (the current, state-wide cap of 460 charters has not yet been reached). Due to strong demand for seats, cap hikes were legislated three times between 2007 and 2015. And we’ve advocated for raising the cap again now — or doing away with it altogether.

But the influential New York State United Teachers union and its New York City affiliate, the United Federation of Teachers, are opposed to a cap hike, and none was proposed in the Governor’s executive budget or in either of the Legislature’s one house budgets. Key state lawmakers like Assembly Education Chair Michael Benedetto have said no cap hike is on the horizon.

Fortunately, lifting the ban on new charters does not require raising or eliminating the cap. It just means making full use of the existing allotment.

The charter caps are intended to limit active charter schools — not closed ones. The law is supposed to result in closed charters so that new schools can replace failing ones. It defeats that purpose to count unused charters toward the cap. So, a simple technical correction that clarifies the intent of the underlying law makes sense.  Indeed, that’s what lawmakers did in 2015, when they enacted a one-off tweak that freed up 22 zombie charters for re-issuance.

The Regents could even take the initiative and unilaterally issue new charters in lieu of those currently unused, under a reasonable interpretation that the current law allows them that latitude.

Whether done by the Regents or the Legislature, now is the time to set the current crowd of zombie charters free —along with 10,000 kids trying to flee schools not serving their needs.

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