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West Lafayette Community School Corporation has sued Governor Holcomb in his official capacity (Cause 79C01-1909-PL-115 in the Circuit Court of Tippecanoe County) to challenge a law that requires local school corporations to make unused buildings available to charter schools for a dollar before they can sell them, leave them vacant, or (the law is less clear) lease them for non-school purposes. West Lafayette has an old building, Happy Hollow, that’s on its last legs and the school corporation has long term plans to use the site, likely as an early education facility, once it gets a solid model put together and can line up the proper funding. In the meantime, it’s being leased to the City of West Lafayette as a temporary city hall for which the City is paying the School a healthy lease payment which, in turn, is being used to fund School operations.
Earlier this year, the General Assembly passed HB 1641 which added IC 20-26-7.1 featuring the $1 lease/purchase requirements. (If a school sells real estate in violation of this requirement, proceeds from the sale go to the State to fund charter school grants). In the case of Happy Hollow, the school corporation arguably has to forego a revenue stream from the City lease or put long term plans on hold if a charter school expresses interest and an intent to get a charter school up and running in the next two years.
So that’s the background. Being a strong proponent of local government and of public schools, it will come as no surprise to anyone that I take the school’s side on this one. But that’s not what prompted me to write this.
In defending the lawsuit, Governor Holcomb (by counsel) has made the breathtaking argument:
“[T]he Takings Clauses and Just Compensation do not apply to the State’s relationship with political subdivisions.”
“[M]unicipalities and subdivisions of the State cannot request just compensation even if there is taking[.]”
The State’s argument does not offer any limitation to this principle which is unique to schools. The State can take local government property and not pay for it. Full stop. The argument is that local government is merely a “subalternate instrumentality” of the State government — in other words, local government is just a tool of State government, so there’s really been no loss if the State commandeers local property for its own purposes.
There is an old United States Supreme Court case, Board of Commissioners of Tippecanoe County v. Lucas, 93 U.S. 108 (1876) where the Court said, “the legislature of a state possesses the power to direct a restitution to taxpayers of a county or other municipal corporation of property exacted from them by taxation, into whatever form the property may be changed, so long as it remains in possession of the municipality.” (emphasis added) It’s true that the State has a lot of power to direct the affairs of local government. So, if the State said that the school had to sell vacant property at market value and, for example, use the proceeds to buy school buses for itself, the “taking” argument would be much weaker. Yes, the State is meddling in local affairs, but taxes paid by local residents are not being diverted to other entities.
But that’s not the argument the Governor is making. Local government property can be used for any purpose the State wants. It doesn’t matter if taxpayers supported a local tax rate precisely because decisions about the use of those taxes were being made by the city council or school board. This goes well beyond taking local school property to subsidize charters. In principle, it could be used to sell off the Wayne County Courthouse in Richmond and use it to subsidize toll road operations in northern Indiana. Or whatever. Like I said, the argument doesn’t offer any limiting principle to the State’s authority to seize local government property without paying for it.
Now, if I had to guess, this is probably the case of an attorney operating out of Indianapolis trying to grind out a win without having run the argument past any political types. I highly doubt that Gov. Holcomb knows anything about this argument even though it’s being made in his name. I suspect the political types would understand that an assertion by the State of unfettered control over local resources is unlikely to be well received outside of the State House.
Doug–what court is this case in?
I obviously agree entirely with your argument.
It’s the case of West Lafayette Community School Corporation v. Holcomb, 79C01-1909-PL-115 pending in the Circuit Court of Tippecanoe County. I had linked to the online docket above, but apparently those links expire.
The caption is in this document which I went ahead and uploaded to my own site.
B-b-b-but local control!
Charters and vouchers have no business receiving state money, no being allowed to use any government building.
The statutory right of charter schools to purchase a building for $1 has been around for about 6 or 7 years. I worked on a case involving the law a few years back. I think you’re looking at an amendment to the law. Charter schools are PUBLIC schools. The idea behind the law is that the public should not have to pay for the buildings twice. I’ve not looked at the case extensively (or at all) like you have, but I don’t think eminent domain is involved when a local government entity acquires a building from another government entity. Eminent domain is about taking PRIVATE property for a public purpose. Also, generally too political subdivisions are creatures of the state and do not exist independently like the relationship between federal and state government. That’s area is kind of gray in Indiana considering how we do Home Rule.
Selling off local government property to fund state operations is a problematic position.
It is tough to say charter schools are public schools when they operate under different guidelines, aren’t managed with similar oversight and are allowed to exclude students that public schools are compelled to take.
Charter schools are political tools first, solace to adults second, and schools a distant third.
I agree. Although they are statutorily described as “public schools,” https://www.in.gov/icsb/2357.htm charter schools described as public schools[*] should always come with an asterisk.
Can anyone refer me to a good source describing the requirements for traditional public schools that charter schools are not subject to?
Charter schools are NOT public schools – they are not transparent, they do not accept all students regardless of handicap or disability, and they are not controlled by a local school board.
https://www.forbes.com/sites/petergreene/2019/02/02/charter-schools-are-not-public-schools/#3916f1c96832
https://www.socialsolutions.com/blog/charter-schools-vs-public-schools// This a good link it answers the questions and answers on a national bent.Still I think you wouldn’t have a problem filling in the blanks.
This side-by-side unbiased comparison of charter schools and traditional public schools is broken down into two parts. Part 1 will focus on an overview of how each school is structured and how they work. Part 2 will look at the strengths and weaknesses of each type of school.
http://18.215.3.229/blog/divided-mind-part-ii-charter-schools-vs-public-schools/ Here is the link to Part 2.
Since charter schools are a relatively new phenomenon, there are still some bumps in the road in terms of guaranteeing their success rates. Issues with accountability and funding have contributed to high failure rates among charter schools.
About 24% of charter schools close due to mismanagement, which is the 2nd largest reason for closure besides funding issues. Since charter schools and public schools directly compete for public funding, some argue that the existence of charter school undermines the public education system. Additionally, since charter schools can be run by for-profit organizations, some criticize for-profit charter schools as turning education into a business opportunity. 24% of charter schools fail due to bad management is nuts!
What would keep a charter school that purchases a school the taxpayers paid for for $1, using it for a sort period of time, and then selling it for a huge profit? That is not fair to taxpayers or public school districts.
Indiana Except as otherwise specified in the charter schools law, charter schools are exempt from the following:
Any state statute applicable to a governing body or school district.
A rule or guideline adopted by the state board of education.
A rule or guideline adopted by the state board (except for those rules that assist a teacher in gaining or renewing a standard or advanced license)
A local regulation or policy adopted by a school district unless specifically incorporated in the charter.
Charter schools must follow laws and rules governing the following:
Required audits by the state board of accounts.
Financial accounting.
Special education.
Criminal history.
Regulation by state agencies.
Nondiscrimination for teachers’ marital status.
Teacher freedom of association.
School counselor immunity.
Compulsory school attendance.
Limitations on employment of children.
Student due process and judicial review.
Firearms and deadly weapons.
Health and safety measures.
Reporting of student violations of law.
Patriotic commemorative observances.
Academic standards, accreditation, assessment and remediation.
Parental access to education records.
Accountability for school performance and improvement.
Personal financial responsibility instruction.
Career and technical education reporting.
CPR training.
One semester offering of study of ethnic and racial groups.
Open enrollment.
Conversion charter schools must also follow teacher and administrator employment rules and regulations.
Citations: Ind. Code Ann. § 20-24-8-4; Ind. Code Ann. § 20-24-8-5
This might be what your looking for,t I am assuming (not a lawyer) the codes above will steer you in the right direction.