A key dispute is whether schools interested in operating pods should have to obtain approval in advance from state regulators, or, conversely, should schools be free to open new pods wherever they want and then notify the state later. Also at issue is the degree to which the state ensures these remote campuses comply with preexisting safety rules for school buildings.
Learning pods, or microschools as they are sometimes called, took off in the early days of the coronavirus pandemic as an alternative to traditional schools, which then were often not providing daily in-person instruction.
In Louisiana, learning pods have been typically organized by groups of parents as tuition-based home schools or small private schools. Public schools, though, generally shied away because state law was silent on the issue.
In June 2021, the Legislature changed that, passing a new state “learning pod” law that cleared the way for public schools to set up their own learning pods. Lawmakers, however, left it to the state Board of Elementary and Secondary Education to adopt rules fleshing out the details.
Almost 18 months later, BESE has yet to adopt pod rules. That could change Dec. 14 when the 11-member state education board tries for a third time this year to adopt such rules.
Over that time, the rulemaking process has been marked by bureaucratic and legislative disputes.
The fight has pitted personnel in the Louisiana Department of Education seeking tighter rules against a prominent charter school group, Charter Schools USA, which wants fewer restrictions.
In the past few years, the charter school giant has opened several learning pods across south Louisiana, but did so without first informing the state education agency what it was doing.
With seven schools in Louisiana and more than 6,000 students, the for-profit Ft. Lauderdale company runs the second largest charter network in the state. It plans soon to open an eighth school in Vermilion Parish.
Charter Schools USA is also politically influential. Over the past 12 years, the company and its affiliates have donated nearly $100,000 to Louisiana politicians, including almost $17,000 to BESE members and people running for the office.
Four of its schools are Type 2 charter schools, meaning they are not restricted to a geographic area and rather can enroll students from any part of Louisiana. Louisiana currently has 40 Type 2 charter schools.
Type 2 schools historically have been unable to capitalize on their statewide reach because families could only drive their kids so far to school each day. Learning pods, however, can be located anywhere in Louisiana, removing long commutes as an obstacle to enrollment.
The previously unknown learning pods were uncovered in a recent audit of Iberville Charter Academy, a Charter Schools USA school located in Plaquemine. The state commissioned the audit, conducted by Washington D.C.-based consulting group TenSquare, as a condition of renewing Iberville Charter’s operating contract earlier this year for three more years.
TenSquare ended up recommending the immediate closure of the school.
TenSquare auditors found that the charter school opened its first pods in fall 2019, before the pandemic, starting with three pods and 140 kids. By February of this year, Iberville Charter had expanded to seven pods educating about 260 students. That’s roughly half of the enrollment of the charter school. These pods range in size from five students in Pierre Part to 92 students in Thibodaux.
“The locations range from one or two rooms in a strip mall to a set of offices in a commercially zoned building,” the auditors found.
The auditors also found these pods were charging parents a series of unusual fees, ranging $1,000 to $5,000 per child per year, on top of the $14,000 to $16,000 in annual public funding that these children bring to Iberville Charter.
In a letter responding to the audit, Gary McGoffin, a Lafayette attorney representing the charter school, trashed the audit, saying it is “of no value and should be totally disregarded.”
McGoffin argued the school was within its legal rights to set up the learning pods as it did, both before the passage of the 2021 law and afterwards. He pointed to a state education official who testified in May 2021 that in his opinion public schools were already free legally to open pods but that they hesitated to do so because they lacked “the explicit power written out in law.” The new pod law, however, has no language saying it can be applied retroactively.
McGoffin also says that any remaining concerns will be settled once BESE adopts rules for learning pods, he said.
The attorney also defended the fees, ranging from $1,000 to $5,000 a year, that parents paid at those pods weren’t tuition as the auditors asserted, but the kind of fees that other public schools routinely charge parents for extra educational services such as before- and after-school care or music lessons.
“Many of the difficulties encountered in the audit were a direct byproduct of TenSquare’s ignorance of the learning pod law and contemporary business practices,” McGoffin wrote.
Prompted by the audit, both the Louisiana Legislative Auditor and the state Inspector General’s Office have launched initial inquiries.
BESE will review the audit when it meets in December. State Superintendent Cade Brumley has yet to offer his own recommendation regarding the future of Iberville Charter Academy.
Brumley’s department first presented proposed pod rules to BESE in February. The initial version would have required charter schools to change their operating contract before opening a pod by requesting that BESE approve what’s known as a material amendment. Charter schools have long had to come to BESE to amend their charter if they make changes to their school’s location.
BESE, however, delayed action. It decided instead to await the outcome of proposed legislation, House Bill 550 by Rep. Julie Emerson, R-Carencro, which outlined a very different approach.
Rather than requiring advance approval from BESE via a material amendment, the proposed law specified that a charter school needed only to notify BESE within 30 days of the pod opening its doors.
After sailing through the House, the bill hit rougher seas in the Senate Education Committee. Sen. Bodi White, R-Central and a member of the committee, amended the bill to prohibit charter schools from opening up pods in school districts with an A or B letter grade. White’s District 6 includes the A-rated Central school district and a sliver of B-rated Livingston Parish.
Brigitte Nieland testified before the committee, identified as speaking on behalf of Stand for Children Louisiana, for which she serves as government affairs director and which has been a prominent backer of the pod law. Nieland is also a registered lobbyist with Charter Schools USA.
Nieland said requiring advance approval of pods by BESE would hamstring charter schools.
“It could be a very, very lengthy process, and if you need to move fast, you need to move fast,” Nieland said.
For instance, she said the pods operating in Houma and Thibodaux, two of nine she was aware of in Louisiana, were set up immediately after Hurricane Ida last year and didn’t have to “wait for the months-long process sometimes for BESE to meet.”
Iberville Charter’s pods in Houma and Thibodaux, however, had been operating since 2019, auditors later revealed.
Belinda Davis, a BESE member who has been pressing for stricter pod rules, told the committee that BESE moves fast when it needs to, such as when BESE’s president suspended a variety of state rules in the early days of the pandemic.
“There are ways to expedite this process so that it is done in a timely manner,” Davis said.
The House later rejected the amended Senate version of HB 550. A conference committee was formed, but the two chambers could not reach a compromise before the session ended.
Back to BESE
The bill’s failure meant BESE was once again the center of action.
In August, Brumley’s office submitted pod rules to BESE similar to what it had presented in February, but BESE once again delayed action.
In late October, the department sent out revised draft pod rules. It had dropped the idea of requiring charter schools to ask BESE for a change to their charter before opening a pod. The state agency, however, still was insisting that charter schools seek advance approval from the department, including filling out a checklist showing the proposed pod site meets state school safety laws.
The department is expected to release soon a final draft of its latest proposed pod rules.
BESE member Ronnie Morris said he is undecided. He said he’s doing his homework now, including meeting with an auditor with TenSquare, to help him decide how to vote.
“I need to hear the rest of the arguments of all the parties,” said Morris.
For her part, Davis said she plans to make a motion for BESE to adopt the original version of the rules that the board received in February.
BESE member Preston Castille said he would like charter schools to provide advance notice when they are planning to open a pod, but said he’s open to how best to do that.
“I want to make sure that the promulgated policy ensures that kids are safe, and that we know from early that that is happening,” Castille said.