what's public?

Private managers of public schools, charter leaders enjoy extra buffer from public-records laws

PHOTO: Monica Disare
Eva Moskowitz, Success Academy Charter Schools CEO.

When Success Academy officials read the news last month that board chair Daniel Loeb had made a racially charged comment about a New York State senator, what did they do next?

Did Success CEO Eva Moskowitz frantically email confidantes about the incident? Did her team craft a new policy on board member conduct?

It turns out, we may never know.

That’s in part because emails sent by Moskowitz and other leaders of New York City’s largest charter network which oversees 46 public schools and 15,500 students are not subject to the same public-records laws as district school officials, such as Chancellor Carmen Fariña.

Moskowitz and officials at other charter school networks are generally exempt from the law because they don’t work for individual schools or city agencies, both of which are required to hand over certain records to members of the public who request them. Instead, they are employed by nonprofit groups called charter management organizations, or CMOs, which aren’t covered by the state records law.

“Success Academy Charter Schools, Inc. (SACS) is a private nonprofit organization that provides services to charter schools, but it is not itself a charter school or a government agency under FOIL,” wrote Success Academy lawyer Robert Dunn in response to an appeal of a Chalkbeat request for Moskowitz’s emails under the state’s Freedom of Information Law, which the network had denied. “Thus, it is not in and of itself subject to FOIL or required to have an appeal process.”

In addition, Success officials said the emails would not need to be released because they qualify as internal communications that are exempt from the public-records law.

The city’s most prominent charter school networks — including KIPP and Uncommon — have similar CMO structures, which appears to shield their leaders from at least some FOIL requests. While “the KIPP NYC public charter schools themselves are subject to the New York Freedom of Information Law,” KIPP spokesperson Steve Mancini said in an email, the “CMOs are not.”

But some government-transparency advocates argue that the law is not so clear cut.

Because CMOs are so heavily involved in the operation of public schools, it could be argued that the vast majority of their records are kept on behalf of public schools and should be public, said Bob Freeman, executive director of the Committee on Open Government and an expert on public-records laws.

Even though nonprofits aren’t covered by FOIL, he said, “Everything you do for an entity that is subject to FOIL — everything you prepare, transmit, and receive — falls within the scope of FOIL.”

Success Academy officials emphasized that the network does not categorically deny public-records requests involving its management organization. For instance, it may hand over CMO records related to the daily operation of its schools, the officials said. The network decides on a case-by-case basis which CMO records are public and which are not, they added.

“We follow the same policies as all other charter management organizations,” said Nicole Sizemore, a Success Academy spokeswoman.

Uncommon Schools spokeswoman Barbara Martinez said that their individual schools are subject to public-records requests and the nonprofit CMO releases budget information on its public tax forms.

“Uncommon Schools is a non-profit organization that follows all local, state and federal laws regarding disclosure,” she said in a statement.

However, because public-records laws mainly apply to government agencies and institutions, it is likely that some important communications related to charter schools — such as charter officials’ emails to real-estate companies, for example and detailed financial records related to their CMOs would be off limits to the public.

The issue of charter management transparency flared up in Connecticut a few years ago.

After the state accused a CMO of nepotism and financial mismanagement of its charter schools, the Hartford Courant requested CMO records under the state’s Freedom of Information law. The CMO refused to hand them over, saying, “We are not a public agency.”

In response, state lawmakers proposed a law to increase CMO transparency and subject them to public-records laws. After charter advocates decried the law as overly broad, lawmakers amended it and the law was passed. (A similar bill was recently introduced in the California legislature but did not pass.)

Similar scandals involving CMOs could happen elsewhere, said Wendy Lecker, an attorney at the Education Law Center. During the debate in Connecticut, she called for making all CMO records public.

“Something done on behalf of a school should be subject to transparency and Freedom of Information laws,” she said. “I don’t see why they’d want to shield the public from that.”

A large number of charter schools are run by charter management organizations. In 2015, about 55 percent of New York City charter schools were managed by CMOs, according to the National Alliance for Public Charter Schools.

The nonprofits help their schools hire, pay, and train staff; analyze data; and handle advertising and public relations, according to a report by the NAPCS. The report notes that these organizations are distinct from textbook companies or other vendors that schools contract with because CMOs “have considerable influence over the instructional design and operations of their affiliated charter schools.”

The nonprofit structure has enabled networks to open new schools more easily, including ones in multiple districts and states, said James Merriman, CEO of the New York City Charter School Center.

Even if New York’s public-records laws applied to CMOs, that would not guarantee that all their records would be accessible or easy to obtain.

New York City’s education department, for instance, is notorious for dragging its feet on FOIL requests. And some information is also exempt from the public-records law.

For instance, opinions or recommendations from within an agency or from outside consultants are exempt from public disclosure. Success’ lawyer argued that even if the network’s executives were subject to public information requests, Moskowitz’s emails to or about Loeb would fall under this “inter-agency” communication exception.

However, government agencies would still have to supply the requested emails, just with the exempted information redacted, said Allan Blutstein, the public-records advisor for the political opposition research group America Rising. Even redacted emails can provide a wealth of information, Blutstein said, since simply seeing when the emails were sent, who they were sent to, and how many were exchanged provides insights into how the organization responded.

“You may not get his or her personal opinion back and forth, but there’s value in knowing how soon they reacted, how soon they’re responding to other people,” Blutstein said. “You can make these types of inferences and learn a lot.”

In addition, institutions that are subject to FOIL must hand over more detailed budget information than nonprofits typically disclose, Blutstein said. While nonprofits are required to release general information, like how much they spend on supplies or training, public institutions must hand over almost every record, he said.

New Arrivals

In a letter to Betsy DeVos, Michigan officials highlight the plight of refugee students — and ask for testing waiver

PHOTO: Warren Consolidated Schools
Students at Warren-Mott High School in the Detroit suburbs. Officials there say that many students are arriving at the school from refugee camps, including 11th graders who had no formal schooling for nine or ten years. Such students would currently be required to take a state English test during their first year in school.

To teachers who work with recently arrived refugee students, the problem is clear: Although their students will eventually learn English, their language skills at first aren’t comparable to those of native speakers.

They’re hoping federal education officials will come to the same conclusion after reading the state’s detail-rich request to delay testing new immigrant children in English.

Michigan is the second state to ask for a waiver from a federal law that requires children who arrived in the U.S. this year to take standardized English tests a year after arriving — even if they’re just being introduced to the language. The law also requires states to count such students’ scores in decisions about whether to close low-performing schools.

“We wanted to balance between presenting hard data and some anecdotes,” said Chris Janzer, assistant director of accountability at the Michigan Department of Education. “We’re hoping that the case we present, with some of the stories, will win us approval.”

The state’s request includes stories from the Detroit area, which is home to the nation’s largest concentration of Arabic speakers, including many newly arrived refugees fleeing wars in the Middle East. This population is unique in more ways than one: It includes more than 30,000 Chaldean Christians who arrived after the U.S. invasion of Iraq in 2003 — the largest such population in the world outside Iraq. And many of its children must deal with the aftereffects of violent displacement even as they attempt to attend school in what is in many cases an entirely new language.

The state’s waiver request offers Hamtramck, a hyper-diverse city enclave in Detroit, as an example:

Hamtramck has many recent arrivals from war-torn regions in Yemen and Syria and has students from remote villages with no formal education background, as well as many others with interrupted learning. New students can have toxic stress and can even be suicidal, and often require wraparound services. Older students are also often burdened with the responsibility of helping their families financially, emotionally, and with childrearing.

Even the luckiest new arrivals would benefit if Michigan receives a waiver from parts of the federal Every Students Succeed Act, says Suzanne Toohey, president of Michigan Teachers of English to Speakers of Other Languages.

“The intent of the waiver is for the most needy students, but it will help all students,” she said, adding that it typically takes 5-7 years for an English learner to catch up to her native-speaking peers.

With that in mind, Toohey says current federal requirements don’t make sense.

“It would be like an adult who is many years out of school, and who took French for two years of high school, going to France and trying to take a college course,” she said. “It’s just not going to happen.”

Following the same logic, Michigan officials are asking U.S. Education Secretary Betsy DeVos to put the brakes on federal requirements for testing recently arrived English learners. If the waiver request is approved:

  • In their first year in Michigan schools, those students wouldn’t be required to take the state English language arts exam.
  • In their second, they would take the test, but schools wouldn’t be held accountable for their scores.
  • In year three, the growth in their scores on the English exam would be factored into school ratings.
  • And in year four their overall score — known as proficiency — would be counted as well as their growth.

That’s still too soon to begin testing English learners, Toohey said, noting “the waiver is a start, but we haven’t gotten all the way there.”

Even so, the proposed change still faces substantial obstacles. New York’s request for a similar waiver was denied by the U.S. Department of Education in January. In its response, the department said it was holding New York to its responsibility to “set high expectations that apply to all students.” Janzer says his staff studied New York’s waiver and concluded that Michigan’s should include more details to humanize the situations of the affected students.

Michigan officials are currently working to incorporate public comments (there were seven, all of them supportive, Janzer said) into its request, which is expected to be submitted in the coming weeks. A decision isn’t expected from federal officials for several more months.

Whoever reads the 10-page document in Washington, D.C. will be confronted with details like these:

  • Lamphere Schools, of Madison Heights, MI, has received a significant influx of students from Iraq and Syria, and at least one elementary school’s student body is roughly 70 percent recently arrived students from these two nations. Lamphere reports that some students initially undergo temporary “silent periods,” a researched stage of second language acquisition, where children are watching and listening, but not yet speaking.
  • Warren Consolidated Schools, of Warren, MI, reports that they have many students from refugee camps, including students who are testing in 11th grade after having no formal schooling for nine or ten years. Warren Consolidated has received 2,800 students from Syria or Iraq since 2007.

Read the full document here. Most local details are on pages 7-9.

live stream

WATCH: Candidates for Detroit school board introduce themselves live

PHOTO: Koby Levin
Detroiters at IBEW 58 wait for candidates for school board candidates to address them.

The nine candidates for Detroit school board are gathering Thursday evening at IBEW 58 in Detroit to make their cases in advance of the November general election in which two seats are up for grabs.

The candidates have already introduced themselves in video statements, but this is one of their first chances to address the public in real time.

We’re covering the event — including a live stream the candidates’ opening statements, which should start around 7 p.m.

Click below or check out our Facebook page to see what they have to say. The candidate speeches begin at around the 12:00 minute mark.