N.M. Connections Academy wins appeal to launch virtual charter school

By | January 30th, 2013

Public Education Department Secretary-designate Hanna Skandera today issued a written decision and order approving the charter application appeal of New Mexico Connections Academy – now the first statewide-authorized virtual charter school in New Mexico.

New Mexico Connections Academy, a fledgling virtual charter school, sought the appeal of a 6-3 vote by the Public Education Commission in September, denying its application to launch a statewide K-12 “virtual” charter school beginning in the 2013-2014 school year.

With its application approved, NMCA is authorized to admit students for enrollment next fall. Although the administrative ruling is technically final, by law, the PEC has thirty days to appeal the decision to a district court.

As reported last month, the PEC voted to reject the application despite a recommendation that it be approved by the PED’s charter division.

In its majority opinion, the PEC cited three grounds for denying the application: 1) the application was essentially contrary to the “best interests” of students, the educational system, and the statewide community; 2) the New Mexico Charter laws are “sufficiently ambiguous” as to the authority of the Commission to grant such a charter, and 3) the Public Education Department’s rules for charter schools preclude “distance learning” as a substitute for in-person instruction unless approved by a local school board.

In reversing the PEC, Skandera held that the Commission acted “arbitrarily and capriciously,” without substantial evidence or contrary to law when it denied its application. Whereas NMCA had provided evidence that more than 3,000 people indicated interest in utilizing its statewide virtual charter school, she pointed out that there was no public opposition to the NMCA application in the record of proceedings and, therefore, no basis to conclude that the application was contrary to the “best interests” of New Mexico’s children:

“No testimonial or documentary evidence challenging NMCA’s charter application was presented to the PEC at the Aug. 20 hearing or subsequent to the hearing … In short no opposition to the NMCA application was received or reported from any school district or community member.”

In regard to the Commission’s argument that the state charter laws were sufficiently ambiguous as to its authority to grant a statewide virtual charter, Skandera wrote:

“There is no statutory authority for denying a charter school application because the PEC fails without any factual or legal support for a de facto ‘determination by denial’ that the virtual charter schools are contrary to New Mexico law….”

Moreover, she said, the fact that New Mexico law is silent as to the issues raised by NMCA’s appeal does not create a statutory ambiguity with regard to the Commission’s authority to grant a statewide virtual application.

“New Mexico law does not prohibit NMCA’s proposed [virtual] delivery method. Rather the laws support the establishment of virtual charter schools,” she wrote in the 14-page decision and order.

Skandera also dismissed as “flawed” a 2009 internal PED legal memorandum advising that virtual schools were “legally impermissible.”

While Skandera’s ruling reversed and remanded the PEC denial of the NMCA application, she did so with several conditions. First, NMCA must provide all of its students computers by the end of its first academic year. Secondly, it must work with the PED to implement the state-mandated curriculum standards including the so-called Common Core.  Thirdly, NMCA must meet its Board of Finance (audit) requirements by the end of its first year. And fourth, in year one, the NMCA will be limited to grades 4 through 12, after which it may apply for K-3 charter approval.

Paul Gessing, president of the Rio Grande Foundation, expressed support for the decision, in a statement:

“Secretary-designate Skandera has taken an important step on behalf of New Mexico’s children by approving this charter school, the state’s 2nd virtual charter school. As both a founding board member of the New Mexico Connections Academy and a professional supporter of educational options, this is yet another step towards reforming education in New Mexico in a way that will improve student outcomes.”

In the video above, recorded in Albuquerque at the National School Choice Whistle-Stop Tour on Jan. 26, Gessing discussed the influence of technology in promoting competition in education and affording parents more school choice options.