Raleigh, N.C. — Changes to the state's charter school laws are headed to the governor's desk – without a section banning discrimination against gay and lesbian children and families.
Critics of Senate Bill 793 also warned it could leave the door open for nepotism and corruption by leaders of for-profit charter schools.
Back in June, after a two-day battle over amendments that would have banned charter schools from discriminating against students on the basis of sexual orientation, House Republicans advanced a compromise provision that said "charter schools shall not discriminate against any student with respect to any category protected under the United States Constitution or under federal law applicable to the states."
That amendment was added to the bill on a 115-0 vote.
But when the measure went to conference committee for a compromise deal, Senate negotiators successfully pushed to have the clause removed.
Rep. John Hardister, R-Guilford, the lead House negotiator, said he agreed to the change out of concern that "it could have broad effect." Asked for clarification, he couldn't explain further.
"I’m not sure what type of broad effect, but I think when we subject our state law to adopting any type of federal law, bringing that into North Carolina, I think we need to be very judicious about that," Hardister said. "For some of us, it’s kind of hard to wrap our head around."
The final version of the bill instead requires charter schools to follow state non-discrimination laws, which do not include sexual orientation as a protected class.
Rep. David Lewis, R-Harnett, insisted that the measure would protect charter school children to the same extent as public school students.
"Discrimination against anyone at any time for any reason is wrong. It’s already forbidden by state law, by federal law, by numerous court decisions that have come down, and it’s not going to happen," Lewis said.
But Rep. Marcus Brandon, the legislature's sole openly gay member, pushed back.
"We can imply that this does protect all kids," said Brandon, D-Guilford. "The problem in North Carolina is that the LGBT community is not a protected class. There is no state law that protects it."
He pointed out that, unlike traditional public schools, charter schools have some limited power to choose which students they will accept, and nothing in state law forbids them from excluding a student or family who is or is perceived to be gay.
"A principal can say, 'We’re not taking LGBT students,'" Brandon said. "That same principal could not get up and say, 'I’m not taking black students.' That would be illegal. But he can get up and say, 'We’re not taking gay students.'
"We have protections for every child except an LGBT child," he continued. "It is not in the language, and if it’s not in the language, anybody can do it."
Reiterating his opposition to any kind of discrimination, Lewis answered, "This bill is not the vehicle to try to start to enumerate different classes of people. This bill treats everyone the same. Everyone who wants to go to a charter school is allowed to go – period."
Rep. Tricia Cotham, D-Mecklenburg, also asked the House to reject the final version of the measure because it doesn't require for-profit charters, also known as educational management organizations, to disclose the salaries of their employees.
The legislation does require charters to disclose the names and salaries of teachers and other employees of either the school or the charter's board of directors.
However, Cotham said, school leaders at for-profit charters are usually employed by the EMO, not the school or the board, so they would not be subject to disclosure requirements.
For example, she said, a principal could hire a spouse into the EMO for a non-teaching position for which he or she isn't qualified and pay him or her any amount of taxpayer money. None of it would be public information, even though it's public money.
The loophole was present in the House version of the bill as well as in the final version. Cotham said she tried to fix it in conference committee but was rebuffed by Senate negotiators.
"If the money flows, we should know where it goes, and that’s not happening," she said. "We are responsible to the taxpayers."
Lewis countered that contracts at other state agencies don't require that level of disclosure. While the contract itself is a public record, the contractor is not required to disclose its employees' salaries.
The legislation passed the House on a vote of 62-36, largely along party lines. It passed the Senate 45-0 Thursday after little explanation and no debate. It now goes to the governor, who has 10 days to decide whether to sign it, veto it or allow it to become law without his signature.