AEC Submission on Charter Schools Policy

Below is our submission on the Education and Training Amendment Bill specially on the reintroduction of charter schools.

Settle in for longer read than most of our content. We hope that it will encourage others to make their own submission.

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Education and Training Amendment Bill

Submission from the Aotearoa Educators Collective

1. Aotearoa Educators Collective (AEC) is an umbrella group created to support education thought leaders who share a common interest in promoting progressive ideals in education.  The group includes academics, principals, teachers, and researchers - many of whom are also parents and grandparents of school age students. AEC is not aligned to any political party. 

2. The collective promotes these ideas:

• Schooling has responsibilities to promote the promises and obligations embodied in Te Tiriti o Waitangi

• Education is a public good

• The primary responsibility for schooling is to develop critical creative citizens invested in participatory democracy with capacity to combat social injustice

• Education should address long seated inequities and injustice through curriculum design

• A rich broad curriculum best serves the needs of children to realise their dreams and aspirations

• Success at school cannot be reduced to achievement in literacy and numeracy

• Educators carry much of the burden inflicted on society by government policies that have grown the gap between rich and the poor

• Educators as caring professionals deserve the respect of all political parties

3. In preparing this submission we have reviewed the evidence of the effects of charter schooling models and schemes that have been implemented in Aotearoa New Zealand and several jurisdictions overseas (USA, UK, Sweden) - including for-profit and online or virtual schooling models of the kind that may be approved under Part 3, Subpart 6A of this Bill. Based on this evidence, we find no credible case for their reintroduction by the current government. 

4. On the precautionary principle that education policy should ‘first do no harm’ to children and young people, and their families, there is: 

   1. contradictory evidentiary justification for reintroducing the scheme as a whole;

   2. weak evidentiary justification for its extension to permit or require existing State schools to convert to charter school status; and 

   3. no evidentiary justification for extending the scheme to include for-profit, online or virtual schooling models for students in the originally stated target communities.

5. This Bill had its first reading under urgency, and public consultation has been fast-tracked. The Ministry of Education’s Departmental Disclosure Statement (DSS) reports that routine external consultation has not taken place (3.6). These omissions from or shortcuts in standard process and workflow are of concern, particularly given the controversial and socially divisive nature of the policy that underpins this Bill.

6. We note that, as it did in 2018, the Labour Party has already committed to abolishing charter schools should it lead a future government. Charter schools are not and are not likely to become settled education policy In Aotearoa New Zealand. In our view their reintroduction is an unnecessarily polarising distraction from more pressing State schooling quality, equity and justice matters that rightly concern everyone.

7. Collectively, all these ‘warning signs’ reinforce the impression that this process is rushed education policy making and bad education law. Children and their families will be the losers as will taxpayers more generally.

8. The ‘designated character’ schooling provisions already available in the Education and Training Act 2020 (Sections 204 & 205) have proven by and large to be uncontroversial over time and appear to enjoy widespread political, professional and community support. If children’s best educational interests are the issue, the logical way forward is review of the designated character legislative and policy settings within the state system in order to seek a non-partisan consensus, not promotion of an unproven charter school model outside it.

9. The DSS reports that “in the absence of a specific Te Tiriti provision in the Bill for charter schools, there will be no formal requirement to ensure charter schools’ plans, policies and curricula reflect local tikanga Māori, mātauranga Māori and te ao Māori, or to take reasonable steps to make instruction in tikanga Māori and te reo Māori” (3.2). This is simply unconscionable given that according to Education Counts statistics, in 2023, 25% or 203,900 school students were Māori. This figure is projected to grow to 30% by 2040.

10. In our view, the absence of a specific Te Tiriti provision in the Bill is in and of itself a breach of the Crown’s obligations under Te Tiriti o Waitangi.

11. To ensure that charter schools comply with the Crown’s obligations to give effect to Te Tiriti o Waitangi, all school-relevant parts of the Education and Training Act 2020, Section 9 should also apply to the Authorisation Board, Charter School Agency, sponsors and individual charter schools (e.g. 9(1) a-d and 9(2) a&h).

12. The absence of a specific Te Tiriti o Waitangi provision would also place government, the Ministry of Education, the Authorisation Board, Charter School Agency, and sponsors in potential breach of government’s human rights obligations to tamariki, rangatahi and whānau, including:

    1. Articles 2.2, 4, 13, 17, 29, and 30 of the United Nations Convention on the Rights of the Child (UNCRC); 

    2. Para 79 of the Committee on the Rights of the Child (CRC) General Comment No. 14 (2013) on the right of the child to have his or her best interests taken as a primary consideration (art. 3, para. 1);

    3. Para 80 of the CRC General Comment No. 11 (2009) CRC/C/GC/11 Indigenous children and their rights under the Convention [on the rights of the child], which obligates states to adopt legislation in accordance with the Convention;

    4. Articles 2, 5, 7.1, 8.1, 8.2 a&d, 11.1, 12.1, 13.1, 13.2, 14.2, 14.3, 15.1, 15.2, 18, 19, 21.1, 23, 31.1, 31.2, and 46.3 of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP); and

    5. Articles 3(h), 4(2) and 30(4) of the United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) as they apply to tangata whaikaha Māori.

13. New Zealand has specific international obligations with respect to education policy and provision as a signatory to the UNCRC, the UNDRIP, and the UNCRPD. Given that some of the commentary text has been redacted from Section 3.1 of the DSS, it is unclear whether appropriate external consultation has taken place with: 

    1. the Chief Children’s Commissioner; 

    2. the Rongomau Taketake responsible for UNDRIP; and 

    3. the Disability Rights Commissioner. 

Equally, as required under the UNCRC, it is unclear what opportunities children and young people, both tangata whenua and tangata Tiriti, have been given to freely express their views on the Bill generally and on the absence of a Te Tiriti provision in particular.

14. The redacted text is of particular concern given: 

    1. the absence of any Te Tiriti provision in the Bill for charter schools; and 

    2. the fact that the Ministry of Justice has not been consulted on or provided feedback on the Cabinet Paper and draft Bill (DSS 3.4.1) even though human rights legislation sits within the portfolio of the Minister of Justice.

15. The DSS (3.3) claims that the draft Bill has been vetted for and is compliant with the rights and freedoms affirmed in the New Zealand Bill of Rights Act 1990. Absent a specific Te Tiriti o Waitangi provision in the Bill, we respectfully disagree with respect to Sections 3, 13, 14, 15, 19(1), and 20 of the NZ Bill of Rights Act 1990.

16. Clause 212B(2) of the Bill specifies the knowledge, skills and experience to which the Minister must have regard when making appointments to the Authorisation Board. These include the vaguely worded criterion “engagement with Māori, Pacific people, and other stakeholders”, but do not specifically include either:

    1. knowledge of and commitment to give effect to Te Tiriti o Waitangi; 

    2. tangata whenua representation; or

    3. regarding the proposed geographical location of the charter school, co-opted mana whenua representation. 

In our view, these omissions are of significant concern given the Ministerial obligations regarding compliance and due diligence with respect to the principles of the Treaty of Waitangi in Sections 7.68-7.70 of the Cabinet Manual 2023 (p. 116).

17. Considering these multiple, deep and widespread concerns, in our view the Bill must, minimally, include a specific Te Tiriti o Waitangi provision that applies in full to the Authorisation Board, Charter School Agency, sponsors and all charter schools irrespective of their student demographic composition. This would address some but not all the potential breaches of protection, provision and participation rights across the UNCRC, UNDRIP, UNCRPD and the Bill of Rights that we have highlighted above.

18. Section 119 of the Education and Training Act 2020 specifies the composition requirements for State school boards, which have been the cornerstone of social-democratic State school governance in Aotearoa New Zealand since the late 1980s. These requirements include elected parent, student and staff member representation minima and maxima. In part, this is to assure that governance of the school is in the control of its own school community. 

19. This Bill would remove any statutory requirement for the governing body of the charter school to include parents, students or staff members from the school community itself. This is profoundly undemocratic in the case of new charter schools and doubly so in the case of converter charter schools. 

20. In our view, given they will receive significant public funds over extended periods of years, charter school sponsors and governing bodies must be more directly and democratically accountable to the local community. We strongly recommend mandatory parent, student and staff representation on all charter school governing bodies, by election or nomination of the stakeholder group, and that each charter school has its own governing body.

21. On the same democratic governance principle, we are also of the view that the Bill must make provision for the local parent community to choose to convert or reconvert to State school status should a majority of staff and of whānau wish to do so. At present, the Authorisation Board has sole authority to:

    1. initiate charter school interventions (Section 212ZD); or

    2. replace the sponsor (Section 212ZF)

We strongly recommend an additional Section in Part 3 Subpart 6A of the Bill which sets out the process through which parents may initiate an application to convert or to reconvert to State school status on completion of a sponsor’s 10 year fixed-term contract. 

22. In direct contrast to existing State school democratic governance norms, this Bill would grant the unelected and Ministerially appointed charter school Authorisation Board members sole authority to: 

    1. decide charter school applications (Section 212, C(1a)); 

    2. approve a sponsor and determine if every member of the sponsor’s governing body is a fit and proper person (S212, I(1));  

    3. cancel the contract with a sponsor and replace that sponsor with another sponsor (S212ZD 1(e); and

    4. replace a sponsor without receiving an application (S212ZF 1). 

In our view, given the highly controversial and potentially divisive nature of the policy that underpins this Bill, and in order to protect the rights and educational interests of the broader community where the particular charter school would be established or converted, all these decisions should be open to scrutiny and challenge on substantive or process grounds within a reasonable timeframe prior to final approval of an application by the Minister.

23. The criteria for assessing fitness and propriety of sponsors and governing body members relate solely to matters of their legal and financial standing, not their character or their knowledge relevant to the curriculum that would be offered in the school, or their knowledge of the school’s special character (S212, J(1 & 2). In our view:

    1. personal integrity of character;

    2. curriculum-relevant knowledge, skills or experience; and 

    3. school special character knowledge, skills or experience 

are essential appointment criteria for both sponsors and individual governing body members. These criteria should therefore be added explicitly to S212J of the Bill, rather than left to the discretion of the Authorisation Board.

24. We have a specific concern with respect to the new Part 3, Subpart 6A, Section 212V, which would permit a sponsor in specified circumstances to charge a property maintenance fee and to require payment of this as a condition of the student’s enrolment at the school. The original, explicitly stated purpose of the charter school scheme was that these schools should offer education to families “within low socio-economic areas and disadvantaged communities”. Accordingly, we believe that a compulsory property maintenance fee would constitute a significant schooling access barrier, and disincentive to consider or apply for enrolment for many if not all families in the target areas and communities. This would be inequitable and unjust and would act as a covert selection mechanism for the school, by intention or not.

25. In our view, it would be contradictory to the purposes of the scheme to approve an application for the establishment of a new charter school in low socio-economic and disadvantaged areas if the sponsor were to propose to charge more than at most a token property maintenance fee. Given that at present the proprietors of some State integrated schools charge attendance dues of up to several thousand dollars annually, and given that this Bill would permit for-profit charter school provision, we strongly recommend that:

    1. the maximum property maintenance fee should be determined by the responsible Minister; and 

    2. the Authorisation Board and Charter School Agency are required to make approval and contract decisions in line with the Minister’s determination.  

26. Section 92 of the Education and Training Act 2020 places several prudential constraints on the appointment of teachers to State schools. State schools are permitted to employ persons with Limited Authority to Teach (LAT) (i.e. unqualified teachers) only when either: 

    1. they have specialist skills which requires high level expertise in a specific subject area; or 

    2. they would be in positions that should be filled by a registered teacher, but no suitably qualified teachers are available. 

LAT’s may be approved by the Teaching Council for up to three years in the first instance but only on a renewable annual basis thereafter. This limitation helps ensure that each class in the school is routinely in the charge of a registered teacher with a practising certificate, and that LATs comprise a minor, ‘adjunct’ component of the staffing profile of the school. A low ratio of LATs to registered teachers with practising certificates helps ensure that the considerable additional burden of qualified, registered and certificated teachers having to support and supervise unqualified LATs to plan, deliver and evaluate the curriculum is minimised. 

27. In contrast, the Bill proposes two major changes to the existing limitations on LAT appointment and employment. Both of these changes create considerable concern on behalf of students and their families given the implicit goal in the Bill of creating employment and budgetary flexibility for sponsors to appoint increased proportions of LATs. 

    1. Under an amended Section 92 (S92 (3), charter schools would be permitted to appoint LATs to permanent teaching positions. This is not permitted in State schools; and yet

    2. Inexplicably in our view, many of the existing provisions in the Education and Training Act 2020 with respect to complaints, discipline and competence of teachers would be mostly or completely disapplied in the case of persons with Limited Authority to Teach (Ss 497, 500, 504a). 

We simply cannot fathom how these changes would help to assure an enhanced learning experience and achievement outcomes for students. In our view LATs should not be appointed to permanent teaching positions for obvious reasons (the clue is in the words themselves - Limited Authority to Teach) but if they are to be appointed then, minimally, any such permanent appointment must be made subject to equivalent complaints, discipline and competence procedures as for registered teachers with practising certificates.

28. Overall, we reiterate, the evidence in favour of charter schools is:

    1. inconsistent (some improve outcomes, some do not); 

    2. statistically insignificant (when comparing like with like); 

    3. highly context specific (models are not transferable or scalable); and

    4. controversial (in some models, the modest benefits realised do not outweigh or justify the significant costs to students, families, communities and the rest of the system). 

29. The three evaluation reports of the previous Partnership Schools Kura Hourua (PSKH) scheme (2013-2018) undertaken by MartinJenkins were ‘light touch’ and at best inconclusive regarding their primary purpose: to raise the achievement of children and groups who were not succeeding in the rest of the State schooling system. 

30. The previous PSKH scheme was originally justified to the public by the government of the time as being:

    1. only a small-scale pilot scheme; and 

    2. subject to rigorous monitoring and accountability for meeting contracted student achievement outcome targets. 

The fact that additional schools were authorised progressively, and some of the scheme conditions altered between approval rounds, means that it was not a ‘pilot study’ or ‘design experiment’ as commonly understood. 

31. Accountability for contracted achievement outcome improvements in the previous scheme was minimal as evidenced by the MartinJenkins final evaluation report. In fact, only anecdotal accounts of student engagement improvements were reported. No actual educational achievement outcome data were included from any of the three case study PSKH in the final report.

32. The Background section of the Explanatory Note to the Bill (p. 1) states that “A similar partnership school model was established in legislation in 2013 for the purpose of lifting educational achievement within low socio-economic areas and disadvantaged communities by providing alternative and innovative education for learners.”  The Explanatory Note to the Bill (p. 1) provides a much vaguer and more limited aim for the present model: “The charter school model is aimed at helping to address the falling student achievement levels in New Zealand”.

33. There is nothing in the Bill or in any proactively released information which provides assurance that the present purpose remains the same as the original: 

    1. lift educational achievement; 

    2. target socio-economically disadvantaged communities; and 

    3. encourage innovative education. 

Absent such assurances, the provisions suggest that charter school status will not be limited solely to applications that address falling student achievement levels in low socio-economic areas and disadvantaged communities. 

34. Without such an assurance, the provisions in the Bill that would permit existing State schools to apply for conversion to charter school status, or grant the Minister complete discretion to direct school boards to apply for conversion (as in the English academy and academy chains model), give the impression that a major underlying purpose of the legislation is to facilitate over future terms of government, large-scale conversion of publicly owned, parent governed State schools to privately owned and privately governed charter schools as has happened through various mechanisms in the models developed in USA, UK and Sweden.

35. For this reason, our view is that conversion applications should not be permitted by already successful State schools that:

    1. meet or exceed government achievement targets; and

    2. do not serve predominantly low-socio economic areas and communities. 

36. The scheme introduced under the Bill is an extravagant per student financial and administrative impost on the Vote Education budget, both in itself and relative to other policy priorities. Based on past experience, the reintroduction of charter schools will not produce any statistically significant achievement gains for the public money expended on it, or for affected students, families and communities.

37. In this regard, we are generally concerned about the lack of transparency in the Bill and proactively released information surrounding the outcomes and investment that will be negotiated between the sponsor and the new departmental agency, the Charter School Agency. 

38. In addition, given that the Charter School Agency will reportedly employ only a small number of staff, and will be hosted by the Ministry of Education, we are concerned that it will appoint both a Chief Executive and an Executive Director. This seems to us to be a superfluous executive layer and profligate use of public funds given also that the Associate Minister of Education’s intention is that “the Agency obtain its back-office services from the Ministry under service agreements and that officials develop a plan to implement the Agency in stages and with minimal disruption to the core work programme” (Cabinet Minute: CAB-24-MIN-0107: 10).

39. Given the chronic underfunding of our State schooling system, the increasing demands made on it due to multiple socio-economic challenges and precarities that originate outside schools, and their sequelae with which children and young people increasingly present in school, we find the prospect that private charter schools may be run for-profit by domestic or overseas organisations, corporations or venture capital consortia both morally objectionable and empirically unjustifiable.

40. We are also puzzled why for-profit potential sponsors would not be required to contribute an equity investment equivalent to the government contribution, to establish and run the school for the duration of the contract, like other kinds of Public Private Partnership (PPP) arrangements. 

41. Our education system has been underfunded for too long, and this unproven policy takes money from what should be far more urgent local community and national interest priority areas, with little safeguard. It has all the hallmarks of a poor and inadequately thought through investment of taxpayer funds.

42. Because this Bill allocates significant taxpayers’ money for a controversial and socially divisive educational intervention, and because ‘sunlight is said to be the best of disinfectants', we urge the Education and Workforce Select Committee to recommend inclusion of the following key safeguards: 

1. The final legislation includes a Te Tiriti o Waitangi provision that incorporates all schooling sector subsections of Section 9 Te Tiriti o Waitangi from the Education and Training Act 2020 and applies these requirements equally to the Authorisation Board, Charter School Agency, sponsors and individual charter schools.

2. The legislation consistently adopts the general principle that public interest and full, independent scrutiny take precedence over commercial sensitivity throughout the application, approval, contracting, monitoring and evaluation phases of the charter school scheme.

3. Existing State schools are not considered for or converted to a charter school unless conversion is fully supported by the majority of staff and of whānau.

4. Governing bodies of each new and converter charter school include parent, staff, student and mana whenua members, by election or nomination of the stakeholder group.

5. Any charter school may convert or return to State school status on completion of a sponsor’s 10 year fixed-term contract if supported by the majority of staff and of whānau.

6. Already successful State schools that: (i) meet or exceed government achievement targets; and (ii) do not serve predominantly “low socio-economic areas and disadvantaged communities” are not allowed to convert. 

7. Private, for-profit businesses, private equity firms, or individuals using charter school sponsorship as their main income, are not eligible to be charter school sponsors.

8. To ensure equitable access by families in low socio-economic and disadvantaged areas, the Minister specifies the maximum property maintenance fee that may be requested by an applicant sponsor, approved by the Authorisation Board, and contracted by the Charter School Agency.

9. Public information is made available on each application for charter school status. 

10. Public information about each application provides a clear picture of the curriculum, student wellbeing support, expectations of parents, and likely financial contribution expected from parents, likely use of teachers with limited authority, and anticipated international student enrolment.

11. The Authorisation Board’s decisions and reasons for them are made public in a timely fashion, for both successful and unsuccessful applications.

12. All decisions to approve or not approve a new or converter charter school are open to scrutiny, challenge and independent review on substantive or process grounds within a reasonable timeframe prior to final approval of an application by the Minister.

13. Charter school sponsors’ contracts with the Charter School Agency are made public.

14. International student enrolment is capped at not more than 15% of a charter school’s enrolment.

15. While tuition may be delivered via any medium including digital technology, no majority or fully online charter school is approved.

16. Charter schools provide informative annual reports to parents that are also publicly available.

17. Government commissions ongoing independent evaluation by educational researchers, including analysis of educational provision, student achievement and wellbeing, and costs.

18. The Office of Auditor General investigates and reports each year on how well the charter school scheme has met each of its stated aims, any costs to the rest of the education system, and the appropriate and effective use of public funds.

We would like to speak to our submission.

15 July 2024