FREDERICK CLASSICAL CHARTER SCHOOL, INC.
FREDERICK COUNTY BOARD OF EDUCATION
JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
Appellant: F. William DuBois (Jessica M. Raba, Venable, LLP
on the brief) all of Baltimore, MD.
Appellee: Andrew W. Nussbaum (Nussbaum Law, LLC on the brief)
all of Charksville, MD.
Graeff, Reed, Zarnoch, Robert A., (Retired, Specially
Md.App. 442] Robert A. Zarnoch, J.
The movement to create charter schools, either by converting
existing schools or by starting new ones, began in the 1990s
from a growing concern that the public schools, at least in
some areas, were not living up to legitimate public
expectations, and the movement took root and spread
quickly." Baltimore City Bd. of Sch. Com'rs v.
City Neighbors Charter Sch., 400 Md. 324, 328, 929 A.2d
113 (2007). This movement has not been without controversy.
In particular, the methodology for disbursing public funds
for charter school use has been an area of unique difficulty
for policy makers. After six years of discussion and debate,
see id. at 348-56, the General Assembly
passed the Public Charter School Act of 2003. Laws of 2003,
ch. 358. The Act provided that funding for charter schools
would be " commensurate with the amount disbursed to
other public schools in the local jurisdiction." Md.
Code (1978, 2014 Repl. Vol.), Education Article ("
Educ." ) § 9-109(a).
the approval of its charter application, in 2013, Frederick
Classical Charter School, Inc. (" Frederick
Classical" ), appellant, protested that the Frederick
County Board of [227 Md.App. 443] Education ("
FCPS" ), appellee, violated Educ. § 9-109 by
failing to include transportation funds in its fiscal year
2014 funding allocation even though Frederick Classical was
not providing transportation for its students. This decision
was upheld by both the State Board of Education (the "
State Board" ) and the Circuit Court for Frederick
Classical appealed to this Court and presents the following
question for our review, which we have rephrased:
Did the State Board err in finding that the Local Board
provided full funding despite the fact that it did not
include transportation funding in Frederick Classical's
that the State Board did not err in upholding the decision of
FCPS not to include transportation funding for Frederick
Classical because FCPS complied with State Board of Education
rulings and state education law. We affirm the decision of
the circuit court.
Charter School and Transportation Funding
case concerns a dispute about local board of education
funding for a charter school--specifically whether the local
board was required to provide funding for transportation
services that neither it nor the charter school provided. We
begin with background on charter schools and transportation
funding in Maryland.
[E]ach county board shall arrange for the transportation of
students to and from consolidated schools."
Educ. § 4-120(b). However, local school boards are not
required to provide transportation to all students who attend
public schools. See, e.g., Educ. § 7-801(b)(1)
(" At its own expense, a county governing body
may provide transportation for public school
students in addition to the transportation provided by [227
Md.App. 444] the State" (Emphasis added)); § 7-805
(specifying conditions under which a school bus may be used
to transport any student who lives within the mileage limit).
The state distributes grants to the county boards to provide
transportation services for public school students and
disabled children, pursuant to the formula set out in Educ.
§ 5-205. This section sets restrictions on this
funding, requiring that any excess funds be applied to the
following fiscal year and that a county board may not
transfer student transportation funding to any other
category. Educ. § 5-205(a).
Charter schools are " semi-autonomous public schools
that operate under a contract with a state or local school
board. The contract, or charter, defines how the school will
be structured, staffed, managed, and funded, what programs
will be offered, and how the school will operate and account
for its activities." City Neighbors Charter
Sch., 400 Md. at 328. As the Court of Appeals has noted,
the principal objective of those who desired to create
charter schools " was to develop and implement
innovative and more effective educational programs, and, to
do that, they needed and demanded freedom from some of the
structural, operational, fiscal, and pedagogical controls
that governed the traditional public school system."
City Neighbors Charter Sch., 400 Md. at 329. In view
of this goal, the State Board of Education has held that the
funding mix of each fund source to the local board of
education need not be duplicated [227 Md.App. 445] at the
charter school level. City Neighbors Charter Sch. v.
Balt. City Bd. of Sch. Comm'rs, MSBE Op. No. 05-17
(2005) (" City Neighbors " ).
the development of its interpretation of funding allocation
for charter schools, the State Board, in its opinion below,
The Charter School Program, which became law in 2003,
requires that a local board " disburse to a public
charter school an amount of county, State, and federal money
for elementary, middle, and secondary students that is
commensurate with the amount disbursed to other public
schools in the local jurisdiction." Md. Code, Educ.
On May 26, 2005, this Board issued three revised opinions
explaining the meaning of the terms " commensurate"
and " disbursed" in accordance with its power to
interpret State education law. This Board stated that the
word " commensurate" meant "
proportionate" and that " disbursed" meant
" expended." City Neighbors Charter Sch. v.
Baltimore City Bd. of Sch. Comm'rs, MSBE Op. No.
05-17 (2005). This Board further stated that commensurate
funding " includes funding for services for which
students in the public charter schools are eligible such as
free and reduced price meals, pre-kindergarten, special
education, English-language learners, Perkins, Title I, and
In order to assist local school systems, this Board provided
a formula designed to result in a proportionate amount.
Id. The formula takes the annual school system
operating budget (including all federal, State, and local
funding) divided by the September 30 enrollment count for the
previous year minus two percent for reasonable central office
functions to arrive at the [per pupil allocation ("
PPA" )]. Id. In addition, the charter school
may be responsible for reimbursing the school system for the
cost of any services that the county provides. Id.
[The State Board's opinion in City Neighbors was
upheld by the Court of Appeals in Baltimore City Bd. of
Sch. Com'rs v. City Neighbors Charter Sch., 400 Md.
324, 929 A.2d 113 (2007).]
[227 Md.App. 446] A year later, in Monocacy Montessori
Communities, Inc. v. Frederick County Bd. of Educ., MSBE
Op. No. 06-17 (2006), this Board considered whether a
different formula created by FCPS was consistent with State
law and the State Board's previous opinions.
* * *
[W]e explained that a school system could use a different
formula so long as it resulted in a " bottom line amount
of money such that this Board could conclude that the school
system was providing proportionate/commensurate funds to the
charter school." Id. We disagreed that the
amount of funding must be " equal" because an equal
PPA allocation would not take into account the value of
in-kind services provided by FCPS. Id.
We next analyzed in Monocacy the formula applied by
FCPS. A major difference in the FCPS formula was that it
broke down the unrestricted budget in each of fifteen
categories. Under the formula, no money was allocated for
transportation because the charter school had agreed that it
would provide for the transportation needs of its students.
We noted that transportation dollars had been a part of the
State Board's standard formula, but that the charter
school would not be entitled to these funds if it had agreed
to forgo them. After analyzing the FCPS formula in full and
comparing it to our own formula, this Board concluded that
FCPS needed to pay an additional $12 per pupil in order to
meet the commensurate funding requirement. Id.
other words, in MMCI, the State Board determined
that a local board may use an alternative funding formula, as
long as that formula resulted in a per pupil allocation that
was similar to the allocation set out in City
Neighbors. Keeping in mind the State Board's
interpretation of Educ. § 9-109 set out above, we now
turn to the facts of this case.