Several hundred charter schools are suing the Department of Education — alleging that new regulations on charter school funding being steered by the Biden administration are unconstitutional.

On the campaign trail, President Biden told voters that he was “not a fan of charter schools.” The new lawsuit alleges that Mr. Biden’s “hostility towards charter schools” has crossed constitutional boundaries.

On Monday, the Michigan Association of Public School Academies, a coalition of 250 Michigan charter schools and the Thomas B. Fordham Institute, which authorizes 13 charter schools in Ohio, filed the suit against the Department of Education.

“Unfortunately, the U.S. Department of Education is channeling the Administration’s apparent hostility towards charter schools into unconstitutional rulemaking, which will rob the neediest students of educational opportunity,” the plaintiffs allege in their complaint.

In July, Mr. Biden’s Department of Education released new rules restricting eligibility for federal charter funding. The criteria would tighten eligibility for the Charter School Program, which provides federal grants to new charter schools that help them through their first three years of operation.

The department initially proposed new regulations in March. The final regulations are less stringent than the initial proposals, but will affect the upcoming grant application cycle.

The plaintiffs allege that the Department of Education has no standing to regulate the Federal Charter Schools program. While the federal charter schools program was founded by President Clinton, Congress expanded the program in 2015 and “set forth clear criteria guiding awards.”

Citing Louisiana Public Service Commission v. Federal Communications Commission, the plaintiffs argue that “an agency literally has no power to act . . . unless and until Congress confers power upon it.”

The plaintiffs also say that the new criteria are “designed to decrease charter school programs.”

According to a Department Education fact sheet, applicants will now need to “demonstrate the need for the school” in their proposed communities — such as over-enrollment in public schools or long charter charter school waitlists. 

Applicants also will need to provide an analysis of the schools “projected student demographics” in relation to its community, and must also submit “plans to establish a racially and socio-economically diverse student body” or otherwise provide opportunities to “underserved students.”

The department also “encourages” planned collaboration between charter schools and public schools in applications.

The plaintiffs say that these measures would “punish the most successful charter school programs.” 

Plaintiffs are seeking a jury trial and injunction against the new rules in U.S. District Court in Michigan.