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.

capital crunch

As New York City’s public housing crumbles, pre-K centers go without crucial repairs

PHOTO: Christina Veiga/Chalkbeat
Yvette Ho, right, taps out a request to NYCHA to fix a leaky roof at CPC Jacob Riis Child Care Center. Meanwhile, a student shows her art project to Mary Cheng, who oversees early childhood programs for the Chinese-American Planning Council, a nonprofit that runs the daycare.

The tables where children would normally play had been dragged to create a makeshift barrier, blocking the 3- and 4-year olds from their favorite centers and from a growing puddle on the floor.

The ceiling at CPC Jacob Riis Child Care Center in the East Village was leaking again.

Center director Yvette Ho rushed to the classroom to survey the damage. On her phone, she tapped out a repair request to the landlord — NYCHA, New York City’s public housing authority.

“This is the perennial leak,” she said. “Just when you think it’s fixed, it comes back again.”

Decades of divestment, neglect, and mismanagement have left NYCHA buildings crumbling, forcing the city to give up some of its control of the housing authority to a federal overseer in an agreement struck last month. The plight of residents has been well documented in media reports and a scathing investigation by the U.S. Attorney’s office in Manhattan, which uncovered out-of-service elevators, faulty heaters, and health hazards like rodent infestations, mold, and lead paint.

But few realize that nestled within those buildings are about 100 child care centers that serve infants and toddlers even while critically needed repairs stack up. Mostly run by nonprofits that rent space from NYCHA, those programs offer a lifeline for families, often earning high marks from the city’s reviewers while also providing subsidized or free care for almost 5,000 children.

The programs face citations for facilities issues more often than programs in buildings leased from private landlords, a survey by the Day Care Council of New York found recently. Though it’s not always clear who is responsible for making repairs, operators can face burdensome fines.

Providers “have to dig into their own pockets,” said Mai Miksic, a research analyst for the Day Care Council. “They’re paying fines for problems that aren’t theirs.”

Groups representing nonprofit providers operating out of NYCHA community centers have begun to join together to advocate for changes, and they say officials have shown interest in taking action. They also say they know that their needs represent only a sliver of the pressing facilities problems facing the country’s largest public housing agency and its residents. Remediation of lead paint in agency apartments where children live is behind schedule, and the city estimates that NYCHA needs a total of more than $30 billion in repairs and upgrades.

Day care centers alone require $130 million in fixes, according to NYCHA. That figure likely does not include problems that affect the entire buildings where the centers are located, such as boilers that need replacing.

The Jacob Riis houses, which were hit hard by Hurricane Sandy, needs almost $94 million in renovations over the next five years, including heating upgrades and drainage work, according to city figures.

The Chinese-American Planning Council, a 54-year-old social services organization that runs daycares and community programs in Lower Manhattan and Queens, has cared for small children in the complex for decades. It currently uses three classrooms in the basement of one of the towers, including one — the one with the persistent leak — that is part of Mayor Bill de Blasio’s heralded Pre-K for All program.

Staff and children at the center have a front-row seat to the building’s problems. A steam pipe in the main hallway frequently bursts. With every explosion, waterlogged ceiling tiles come crashing down and the center’s only bathroom for children becomes off-limits due to dripping, scalding-hot water. NYCHA has encased the temperamental pipe in a makeshift closet.

At times, the facility’s troubles have seemed too disruptive for the Chinese-American Planning Council to justify keeping its center in the building. All the garbage for the tower piles into a compactor room in the middle of the center. The only way to empty it, twice a day, is to haul the trash past classrooms and out an open door.

But Mary Cheng, the director of childhood services for the planning council, said they’ve resolved to stay because closing isn’t a good option, either — not for kids of such a young age, who thrive on stability, and not for parents who rely on the center’s longer hours so they can work to support their families.

We had to think: Are we being a service to the community or a disservice?” Cheng asked. “You’re faced with the issue of constant facility issues.”

Operators say they stay because NYCHA centers are usually where their services can have the most impact, and because the more affordable rent allows them to stretch their dollars even further.

“These buildings were built with community spaces for a reason. Neighborhoods need places for people to gather,” said Melissa Aase, the executive director of University Settlement, a nonprofit that runs programs for seniors and after-school care in NYCHA buildings. “If we’re crumbling, it sends a really powerful message to the residents about their worth.”

NYCHA says it takes just over 10 days for the authority to respond to repair requests in community centers — a much shorter turnaround of more than a month across the system. Still, it’s a long window that advocates say has sometimes forced programs to shut their doors or even have their licenses yanked.

The nonprofit Union Settlement runs five early childhood centers in NYCHA buildings across East Harlem. Sometimes, they’ve had to turn parents away who come to drop off their children in the morning because the classrooms are unbearably cold in the winter. The group is usually able to make space at another facility when an emergency forces one to close, but the sudden change can pose a “huge hardship” for families who need to get to work on time, said David Nocenti, the executive director.

“The same problems that the residents have, the nonprofits have as we’re trying to serve those residents,” Nocenti said. “Just like boilers go out in residential buildings and there’s no heat, the same boiler generally affects the community centers as well.”

Facilities breakdowns can leave operators vulnerable to fines from the city health department, which can reach thousands of dollars. Most programs operating in NYCHA centers are subsidized by city, state, and federal funds, but typically public money can’t be used to cover the citations. At Jacob Riis, the staff has resorted to “simple fundraisers” like bake sales to pay the fines, Cheng said. 

Centers take more than just a budgetary hit, as resolving the citations usually requires managers or other high-ranking officials spending hours at a city hearing.

“It’s also a loss of the staff and a loss of the expertise at that time as well,” Nocenti said. “If the department of health comes and you have no heat, you get fined for no heat, even though we don’t control the boiler and can’t make repairs to the boiler.”

Aase said her organization has sometimes dug into its own budget to make repairs to keep its after-school and senior programs open. One University Settlement center has paid deep cleanings after 17 sewage floods in the course 12 months, she said, while another center with a rodent infestation has closed 10 times over the span of a year and required spending on extermination services.

A record of citations could pose problems for operators vying for city contracts, so it’s better to pay for fixes than risk your reputation, Aase said.

“When you have violations, it shows up as you’re being vetted,” she said. “We spend our own money because we know either that NYCHA doesn’t have the funds or doesn’t have the personnel to address the issue quickly enough, and community members want to come back.”

Calling themselves the NYCHA Community Space Coalition, service providers that run more than 200 programs within public housing facilities have drawn up an action plan for addressing what they say is an emergency situation. They are calling for state money to help pay for repairs, and reimbursement from the city when operators tap their own budgets for fixes. They are also asking for agreements that plainly spell out NYCHA’s responsibilities and a clear delineation of who is responsible for which fines.

There have been encouraging signs, said J.T. Falcone, a policy analyst with United Neighborhood Houses, one of the organizations behind the coalition. NYCHA is meeting weekly with other city agencies to help speed up repairs, and Falcone said the authority has designated specific people to oversee work on pressing issues.

Locally, there have been small changes that can make a notable difference in the day-to-day operation of a center. At Jacob Riis, the trash is now taken out once before students arrive in the morning, and a lock has been placed on the door to the compactor room which had previously been left open and posed a potential risk to children.

While providers have found willing partners, a NYCHA official suggested there’s only so much that can be done when faced with such deep needs across the housing authority.

“These centers are valuable assets to our communities that deserve to be preserved. But given NYCHA’s dire financial position and more than $30 billion in capital needs, it is difficult to accommodate both the repairs needed to secure our residents’ homes as well as the fixes for our centers,” a NYCHA spokesman wrote in an email. “We continue to work with our partners to clearly lay out roles and responsibilities for each party to determine the best strategy for financing existing repair needs within the context of NYCHA’s larger capital needs.”

These thorny problems will soon fall also to the city’s education department to help resolve.

Currently, contracts for publicly subsidized child-care centers are overseen by the Administration for Children’s Services. But that oversight is set to shift to the education department beginning this summer, part of a high-stakes effort to streamline services for the city’s children from birth through high school. Already, the education department has joined NYCHA’s regular meetings with other city agencies.

We’ll continue to work closely with our providers in NYCHA facilities and support them through this transition,” education department spokeswoman Isabelle Boundy wrote in an email.

For now, parents are left to keep their fingers crossed as they make use of programs that the mayor says could transform their children’s lives — and the city’s future.

Dexter Fauntleroy drops off his son at Jacob Riis most mornings. Three-year-old Kenai has gone to daycare there for most of his short life. Fauntleroy and his wife have kept their youngest son enrolled at the center, just down the street from their apartment in the Lillian Wald houses, because they’re impressed with how much Kenai has learned and the dedication they see from the staff.

Of course, Fauntleroy has noticed the persistent leaks and patch-job repairs. The thought that the roof could come crashing down on students someday has crossed his mind.

“Does that have to happen before it’s taken seriously?” he asked. “There has to be some accountability.”

College Access

How an effort to prepare Michigan high schoolers for college slipped through the cracks

The proposal to make it easier for students to earn college credit while still in high school seemed like the rare education policy idea with no natural enemies in the Michigan legislature.

When a bill was proposed in the Republican-controlled Senate, it passed in a unanimous vote.

Then it vanished — apparently pushed aside by more pressing concerns.

“Boy, we must have just missed it,” said Tim Kelly, a former representative who, as chairman of the house committee on education, had the power to bring the bill to a vote last year. “I can’t imagine why I wouldn’t have been in favor.”

Advocates of so-called dual enrollment are hoping their next attempt won’t meet the same fate. They want to lift a cap on state-funded college courses that students can take while still in high school. Dual enrollment is widely considered to be one of the most powerful ways to increase the number of people who earn college degrees.

In her State of the State address, Gov. Gretchen Whitmer promised to sharply increase the number of Michiganders with degrees to 60 percent by 2030. That number currently hovers around 43 percent, putting Michigan in the bottom third of states.

Michigan is one of five states that limit dual enrollment; its limit is the strictest of any state. Advocates say that limiting students to 10 college courses in four years is unusual and unnecessary.

The cap is not the only obstacle preventing students from earning valuable experiences — not to mention college credits — before they turn 18.

It may not even be the most significant. When advocates worry that the growth of dual enrollment in Michigan is slowing, they lay much of the blame on financial incentives that give schools little reason to help students dual enroll.

“I think we should look at [lifting the cap], but we should also look at the funding mechanism,” said Brenda Carter, a state representative who serves on the house education committee. “How many schools in Michigan are limited in what they can offer their students because of funding?”

Schools are required to pay roughly $7,800 in annual tuition for students who choose to take college courses, and some have suggested that the state should help offset those costs.

But any new funding for dual enrollment would require a political battle. Lifting the cap, less so.

That’s why supporters of lifting the cap were so bemused when, last year, a bill that had garnered strong bipartisan support in the Senate never went to a vote in the House.

“That was really surprising,” said Brandy Johnson, executive director of the Michigan College Access Network, a nonprofit that aims to increase the number of students who earn college degrees. In a 2015 report, the organization called for the legislature to “eliminate restrictive rules” surrounding dual enrollment.

Johnson guessed that the 2018 dual enrollment bill slipped through the cracks in part because of its relatively low profile. It was eclipsed in the news cycle by an ongoing debate about school funding and by a political furor over social studies learning standards.

Several legislators told Chalkbeat they didn’t know that dual enrollment is capped.

Among them are Carter and Dayna Polehanki, a Democrat who was elected to the senate in November and is now a vice-chair of the Senate’s education committee, said she became familiar with dual enrollment while working as a high school teacher in Macomb County.

She thought it was good for her students, but said she wanted to learn more about the cap before making up her mind. She pointed out that if students decided to take courses at a community college that were already offered at their local school, schools could find themselves paying for teachers and for students’ community college tuition.

“I can see both sides of that issue,” she said.

The Republican chairs and vice-chairs of both the Senate and House education committees did not respond to requests for comment on Wednesday.

Advocates of dual enrollment say it’s worth sorting out the challenges that could come with allowing high schoolers to take unlimited college credits.

With the cap lifted, high school students could earn a diploma from a traditional high school and simultaneously complete a technical certification or an associates degree from a community college. Those students would save money on college credits, and they would finish high school better-prepared for college than peers who’d never set foot in a college classroom.

Lifting the cap “expands access for students, especially low-income students,” Johnson said.

She warned that not all high schoolers are ready to take a heavy college course load. If the cap is lifted, she said, the state should also make sure that students meet a “readiness threshold” — perhaps a minimum standardized test score — before being allowed to dive into college coursework.

But she added that after the bill passed the Senate last year, she believed it had a chance in 2019.

“I am very hopeful,” she said.

Kelly, who reached his term limit in the house last year, said he hopes his former colleagues take a second look at the issue.

“I would hope somebody does,” he said.