Can a Mississippi charter school operator consolidate two separate charter contracts (for two grade-divided schools sharing one building) into a single contract to cut administrative costs?

Plain-English summary

RePublic Schools, Inc., operates two charter schools in Jackson under separate charter contracts with the Mississippi Charter School Authorizer Board: Joel E. Smilow Collegiate (one grade range) and Joel E. Smilow Prep (another grade range). The two schools share a single building and have the same governing board. RePublic wanted to administratively consolidate them under a single charter contract to reduce duplicative administrative work and direct more funding to instruction. Educational services to students would not change.

The schools' counsel asked the AG: does the Mississippi Charter Schools Act of 2013 give RePublic the authority to consolidate, with the Authorizer Board's agreement, by amending both contracts?

The AG's answer: the Act doesn't speak directly to consolidation, but the Authorizer Board has rule-making authority that could fill the gap. Section 37-28-9 lists the Authorizer Board's powers and duties:

• Developing chartering policies and maintaining practices consistent with national charter authorizing standards.
• Approving quality charter applications.
• Declining inadequate applications.
• Negotiating and executing charter contracts.
• Monitoring charter school performance and legal compliance.
• Determining whether charter contracts merit renewal, nonrenewal, or revocation.

The AG noted that § 37-28-39 already lets a charter contract cover more than one school and lets one governing board hold more than one charter. But the Act is silent on consolidating existing charter schools that are already under separate contracts.

Conclusion: because the Authorizer Board has rule-making authority, it could by regulation allow administrative consolidation of two existing charter schools under a single contract. So consolidation requires:

1. The Authorizer Board to develop a policy or regulation permitting consolidation.
2. The Authorizer Board to approve the specific consolidation in question.

The AG specifically declined to interpret regulations adopted by the Authorizer Board or the specific charter contracts at issue. Section 7-5-25 limits the AG to questions of state law, not interpretation of administrative rules or contracts.

What this means for you

If you're a Mississippi charter school operator

Under this opinion, the Charter Schools Act does not itself authorize administratively consolidating two existing charter schools that operate under separate contracts. The AG concluded that the Authorizer Board, using its § 37-28-9 authority to develop chartering policies and to negotiate and execute charter contracts, could allow such a consolidation by regulation. So, in the AG's words, "a charter school could only consolidate in accordance with Authorizer Board regulations and with approval by the Authorizer Board."

If you're staff at the Mississippi Charter School Authorizer Board

The opinion identifies your board's § 37-28-9 powers (developing chartering policies, negotiating and executing contracts, monitoring performance and compliance, and deciding on renewal, nonrenewal, or revocation) as the basis on which the board could, by regulation, allow administrative consolidation of two schools under a single charter contract. The AG expressly did not interpret any regulation the board has adopted or the specific charter contracts at issue.

If you're a parent or student at a charter school facing consolidation

The consolidation RePublic proposed was administrative only; per the request, it "would not impact educational services to the students" but would let the operator reduce administrative costs and direct more funding to classroom instruction. The opinion addresses the contractual structure, not any change to the schools' educational programs.

If you're a Mississippi legislator

The opinion notes a gap: the Charter Schools Act allows a single contract to cover more than one school and a single governing board to hold more than one contract (§ 37-28-39), but is silent on consolidating existing charter schools that already operate under separate contracts. The path the AG identifies is the Authorizer Board filling that gap by regulation under § 37-28-9; the opinion does not call for amending the Act.

If you're a charter school attorney

The opinion's holding is structural: the Charter Schools Act does not directly authorize consolidating two existing charters, but the Authorizer Board's § 37-28-9 rule-making authority could supply a path by regulation, and any consolidation would require both Authorizer Board regulations and Authorizer Board approval. Because the AG declined under § 7-5-25 to interpret board regulations or the charter contracts themselves, those specifics are left to the board and the operator.

Common questions

Q: What's the difference between administrative consolidation and educational consolidation?
A: Administrative consolidation merges the back-office contractual structure (one charter contract instead of two). Educational services remain the same. Educational consolidation would merge the schools themselves (one school instead of two, with combined grade ranges, programs, etc.). RePublic asked about administrative consolidation only.

Q: Can two charter schools share a building under separate contracts?
A: Yes. Section 37-28-39 contemplates flexibility in contract structures. Joel E. Smilow Collegiate and Prep already do this.

Q: Can one operator hold multiple charter contracts?
A: Yes. Section 37-28-39 explicitly allows a single governing board to hold more than one charter contract.

Q: Does the AG opinion say consolidation is required to be approved?
A: No. The opinion says the Authorizer Board could allow consolidation by regulation. The Authorizer Board has discretion to develop or not develop a consolidation policy.

Q: What if the Authorizer Board does not have a consolidation policy?
A: Under the opinion, consolidation can happen only "in accordance with Authorizer Board regulations and with approval by the Authorizer Board." The AG identifies the board's § 37-28-9 rule-making authority as the route to such a policy, but leaves whether to adopt one to the board.

Q: Are the consolidated school's performance expectations carried forward?
A: Yes. Each component school within a consolidated contract should retain identifiable academic and operational performance expectations. The AG notes that charter contracts must "clearly set[] forth the academic and operational performance expectations and measures by which the charter school will be judged" (§ 37-28-21(2)(a)).

Background and statutory framework

The Mississippi Charter Schools Act of 2013 (codified in Title 37, Chapter 28 of the Mississippi Code) created the framework for charter schools in the state. The Mississippi Charter School Authorizer Board is the exclusive authorizer in Mississippi (§ 37-28-7(1)). It has both administrative and substantive responsibilities:

• Develops chartering policies (§ 37-28-9(1)(a)).
• Approves or declines applications.
• Negotiates and executes charter contracts.
• Monitors charter school performance and compliance.
• Decides on renewals, nonrenewals, and revocations.

The Charter Schools Act provides for:

• Charter applications (§ 37-28-15) with detailed requirements.
• Charter contracts (§ 37-28-21) with clear performance expectations.
• Annual monitoring (§ 37-28-31(1)).
• Multi-year terms with renewal at the Authorizer Board's discretion (§§ 37-28-21, 37-28-33).
• Multi-school contracts and multi-contract operators (§ 37-28-39).

What the Act does not directly address:

• Administrative consolidation of existing charter schools that are operating under separate contracts.
• Procedures for amending a contract to merge it with another existing charter.

The AG's opinion fills this gap doctrinally: the rule-making authority in § 37-28-9 is broad enough to encompass policy development on consolidation. The Authorizer Board can fill the regulatory gap if it chooses.

The AG's reluctance to interpret either Authorizer Board regulations or specific charter contracts (under Section 7-5-25's limits) means that the operator and the Authorizer Board have to work out the practical details. The AG provides the structural authority answer; the parties handle the implementation.

Citations and references

Statutes:

• Miss. Code Ann. § 7-5-25 (AG opinion authority)
• Miss. Code Ann. § 37-28-7(1) (Authorizer Board's exclusive authority)
• Miss. Code Ann. § 37-28-9 (Authorizer Board powers and duties)
• Miss. Code Ann. § 37-28-9(1)
• Miss. Code Ann. § 37-28-15(4) (charter application contents)
• Miss. Code Ann. § 37-28-21 (charter contracts)
• Miss. Code Ann. § 37-28-21(2)(a) (academic/operational performance expectations)
• Miss. Code Ann. § 37-28-31(1) (annual monitoring)
• Miss. Code Ann. § 37-28-33 (renewal)
• Miss. Code Ann. § 37-28-39 (multi-school contracts and multi-contract operators)

Source

• Landing page: https://attorneygenerallynnfitch.com/divisions/opinions-and-policy/recent-opinions/
• Original PDF: https://attorneygenerallynnfitch.com/wp-content/uploads/2023/05/H.HillII-April-6-2023-Amendment-of-Charter-School-Contract-for-Administrative-Consolidation.pdf

Original opinion text

April 6, 2023

H. Lee Hill II, Esq.
Counsel, Joel E. Smilow Collegiate and Joel E. Smilow Prep
One Eastover Center
100 Vision Drive, Suite 400
Jackson, Mississippi 39211

Re: Amendment of Charter School Contract for Administrative Consolidation

Dear Mr. Hill:

The Office of the Attorney General has received your request for an official opinion.

Background

According to your request, RePublic Schools, Inc. ("RePublic") operates Joel E. Smilow Collegiate ("Collegiate") and Joel E. Smilow Prep ("Prep") pursuant to two separate charter contracts between RePublic and the Mississippi Charter School Authorizer Board ("Authorizer Board"). You state that Collegiate and Prep provide education for separate grades but operate out of a single building and are governed by the same board members. You further state that RePublic is seeking to amend the respective contracts with the Authorizer Board and administratively consolidate Collegiate and Prep into a single contract. According to your request, this consolidation would not impact educational services to the students but would allow RePublic to reduce administrative costs and direct more funding to classroom instruction.

Question Presented

Does RePublic have the statutory authority under the Mississippi Charter Schools Act of 2013 to administratively consolidate Prep and Collegiate into a single charter contract, provided the Authorizer Board –"having exclusive chartering jurisdiction" in Mississippi– mutually agrees to the same via appropriate amendments to the respective Prep Contract and Collegiate Contract?

Brief Response

While the Charter Schools Act does not speak specifically to your question about the authority to "administratively consolidate" under a single contract, the Authorizer Board has the authority under Mississippi Code Annotated Section 37-28-9 to develop chartering policies, negotiate and execute charter contracts, monitor the performance and legal compliance of charter schools, and determine "whether each charter contract merits renewal, nonrenewal, or revocation. . . ." Because the Authorizer Board has this authority to develop chartering polices, it could, by regulation, allow for the administrative consolidation of two schools under a single charter contract.

Applicable Law and Discussion

As an initial matter, pursuant to Section 7-5-25, the Office of the Attorney General is authorized to issue official opinions on questions of state law only. This office is unable to interpret or opine on administrative rules and regulations adopted by state agencies. Further, we cannot by official opinion interpret the terms or provisions of an agreement or contract. Thus, we offer no opinion or interpretation of any regulation adopted by the Authorizer Board or the charter contracts at issue.

Under the authority of Section 37-28-7(1), the Authorizer Board is "a state agency with exclusive chartering jurisdiction in the State of Mississippi." While the Charter School Act is silent on the question of consolidation, the Authorizer Board has the authority under Section 37-28-9 to develop chartering policies. In addition to "[d]eveloping chartering policies and maintaining practices consistent with nationally recognized principles and standards for quality charter authorizing in all major areas of authorizing responsibility," the powers and duties of the Authorizer Board include:

...

(b) Approving quality charter applications that meet identified educational needs and promote a diversity of educational choices;

(c) Declining to approve weak or inadequate charter applications;

(d) Negotiating and executing charter contracts with approved charter schools;

(e) Monitoring, in accordance with charter contract terms, the performance and legal compliance of charter schools;

(f) Determining whether each charter contract merits renewal, nonrenewal or revocation. . . .

Miss. Code Ann. § 37-28-9(1). Charter applications must include, among other things, "[t]he grades to be served each year for the full term of the charter contract" and the "[m]inimum, planned and maximum enrollment per grade for the term of the charter contract." Miss. Code Ann. § 37-28-15(4). The Authorizer Board and the governing board of an approved charter school are required to "execute a charter contract that clearly sets forth the academic and operational performance expectations and measures by which the charter school will be judged and the administrative relationship between the authorizer and charter school, including each party's rights and duties." Miss. Code Ann. § 37-28-21(2)(a). "The[se] performance provisions may be refined or amended by mutual agreement. . . ." Id. Charter contracts are approved for a fixed term and are renewable at the discretion of the Authorizer Board. Miss. Code Ann. §§ 37-28-21 and 37-28-33. The Authorizer Board is further required to "monitor annually the performance and legal compliance of each charter school it oversees. . . ." Miss. Code Ann. § 37-28-31(1).

Even though RePublic is the charter operator for both schools, and RePublic owns the assets and inventory for both Collegiate and Prep, each charter contract is separate and distinct. While Section 37-28-39 allows a charter contract to consist of more than one school and also allows a single governing board to hold more than one charter contract, the Act is silent with respect to consolidation of existing charter schools operating under separate contracts. The Act does not address whether a contract can be amended to simply add an additional school without surrendering the additional school's original charter.

The Authorizer Board has the authority under Section 37-28-9 to develop chartering policies, negotiate and execute charter contracts, monitor the performance and legal compliance of charter schools, and determine "whether each charter contract merits renewal, nonrenewal, or revocation. . . ." Because the Authorizer Board has this authority to develop chartering polices, it could, by regulation, allow for the administrative consolidation of two schools under a single charter contract. Thus, a charter school could only consolidate in accordance with Authorizer Board regulations and with approval by the Authorizer Board.

If this office may be of any further assistance to you, please do not hesitate to contact us.

Sincerely,

LYNN FITCH, ATTORNEY GENERAL

By: /s/ Gregory Alston
Gregory Alston
Special Assistant Attorney General