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.

Every Student Succeeds Act

Plans for a single Indiana diploma advance with new rules that raise the bar for graduation waivers

In a move that might make it more difficult for some students to graduate, Indiana lawmakers are considering raising the threshold for allowing students to earn a diploma when they have fallen short of some state requirements.

A proposal to change the graduation waiver system is the latest attempt by the state to amend graduation requirements as part of a policy initiative to ensure that students are prepared for life after high school. The change in waiver policy could make it more challenging for students who struggle academically to complete high school.

“I want to make sure we have as few waivers as possible,” said Rep. Bob Behning, Republican chairman of the House Education Committee and author of House Bill 1426, which includes the waiver changes. And if a waiver is necessary, he said, he wants the requirements to be stringent enough to ensure post-graduate success.

The proposed waiver requirements are part of a sweeping effort by the state to align state law with the state’s new graduation pathways system. The bill, which passed its first major hurdle with the approval of the House Education Committee on Tuesday, would combine the state’s four diplomas into one to deal with the effects of a change in federal law that no longer counts the state’s less-rigorous general diploma in the federal graduation rate. With one diploma, Indiana would be more likely to pass muster under the new federal rules, but final approval from the federal government won’t come for several months.

An amendment to the bill proposed on Tuesday will change Indiana’s policy for allowing students to receive a waiver that, while controversial, is widely used. More than 8 percent of the more than 70,000 students who graduated last year received waivers from meeting graduation requirements.

Supporters say waivers provide opportunities to students who might face challenges that affect their ability to meet the basic graduation requirements. But critics say they allow high schools to push through students that lack the kind of skills needed to be successfully employed.

Waiver requirements for students with disabilities would not change under the new proposal.

The current system allows students who repeatedly fail required state tests in English and math to be granted a waiver that lets them graduate if they meet other criteria.

But under the new pathways system, which will affect students now in seventh grade, the state graduation exam will be replaced with one of several new graduation pathways requirements, which could include passing a college-entrance exam, taking career and technical education classes, or passing advanced courses.

Under Behning’s proposal, a waiver would be granted if a student had earned an average GPA of 2.0; maintained 95 percent attendance; or if he or she has been admitted to college, a job training program, the military or has an opportunity to start a career.

The bill allows a school’s principal to approve alternative requirements but doesn’t address how those would be developed. The new rules could also be used by students transferring from schools that are out of state or from private schools not held to graduation pathway rules.

The current criteria to receive a waiver do not call for students to be admitted to college, the military or a job. Students do have to maintain a 95 percent attendance record and a 2.0 grade point average, and also have to complete requirements for a general diploma, take a workforce readiness assessment or earn an industry certification approved by the state board. The standards also require students to obtain letters of recommendation from teachers (with approval of the school principal) and to use class work to show students have mastered the subject despite failing the graduation exam.

It’s not yet clear how many students might be affected by a change to the graduation waiver system. In the months since the Indiana State Board of Education approved the new graduation pathways, educators have raised concerns to state board staff members about the types of students who might not have a clear-cut pathway under the plan — for example, a student headed to college who might not have an exceptional academic record. A waiver outlined by HB 1426 could give them another shot. But for students without definite post-graduation plans, that waiver could be out of reach.

None of the educators or education advocates who testified on the bill spoke out specifically on the waiver changes. Mike Brown, director of legislative affairs for the Indiana Department of Education, said that based on a “cursory look,” the department didn’t have any issues with it.

Aside from the diploma and graduation waiver changes, the bill would also:

  • Make Indiana’s high school test a college-entrance exam, such as the ACT or SAT, instead of end-of-year tests in English and math.
  • Encourage the state board to look into alternatives for Algebra 2, currently a diploma requirement.
  • Ask the state board to establish guidelines for how districts and schools can create “local” graduation pathways and how they would be approved by the state board. It would also add $500,000 to fund development of local pathways that districts and schools could apply for.
  • Eliminate the Accuplacer exam, which schools now use to see if high school students need remediation in English or math before they graduate.

Because the bill includes a request for state funding, it next heads to the House Ways and Means Committee.

Making ends meet

Detroit teachers who get second jobs to supplement low salaries might soon have to disclose those gigs

PHOTO: Photo courtesy of Dawn McFarlin
Dawn McFarlin, shown here wearing a shirt from her T-shirt company, is one of many Michigan teachers with a second job.

Teachers in Detroit’s main school district could soon have to tell their supervisors if they are supplementing their salaries with a side job.

The school board’s policy committee last week approved a new policy that says the district  “expects employees to disclose outside employment” and bars employees from working a second job while on any kind of leave.

The policy, which will get more review, including a minimum of two reads before the full school board, before being adopted and put into practice, comes amid a wholesale overhaul of district rules. The school board is reviewing and implementing a host of new policies as part of the ongoing transition from the old Detroit Public Schools district to the new one, the Detroit Public Schools Community District.  

Frequent changes to district policies under the five emergency managers who ran the Detroit district in recent years means that it’s unclear whether the employment disclosure policy is new, although the rules for outside employment under the current employee code of ethics do not require employees to disclose their second jobs. It’s also unclear how many teachers and district staffers the policy might affect, whether any kinds of second jobs might be prohibited, and how the district might use information about teachers’ side gigs.

What is clear is that educators say intervening in teachers’ outside employment does not make sense, given how hard it is to make ends meet as a Detroit educator right now.

“The bottom line is until you start paying teachers enough money, until then, people have to do what they have to do to make ends meet,” said Ivy Bailey, president of the Detroit Federation of Teachers. “It’s really none of their business about what teachers do on their off time unless it’s a conflict of interest.”

Such conflicts, in which a teacher’s second job might interfere with his or her ability to fulfill responsibilities to the district, are exactly why the policy is needed, said Superintendent Nikolai Vitti.

“As we’re rebuilding the district, we really want to avoid as many conflict of interests as possible,” Vitti said. “We’ve seen instances where there are conflicts of interest at the district level at the school level with all employees, so we’re just trying to be proactive with the culture of the district.”

Vitti said the step is intended to “prevent some of the ills of the past,” though he did not offer any specific examples.

But the district’s history is littered with costly and embarrassing scandals that might have been averted if closer attention were being paid to employees’ outside jobs. In one extreme example, a district official created tutoring companies, then billed for services she never delivered.

Vitti also pointed out that many other districts require full disclosure of outside employment. His former district, Duval County Public Schools in Florida, is not one of them, according to an employee handbook posted online. There, employees are not expected to disclose their outside employment, nor are they barred from working other jobs while on leave. But they are not allowed to sell anything to other teachers nor to parents of their students.

If implemented, the policy in Detroit could affect large numbers of teachers. About 19 percent of Michigan teachers reported having a second job as of 2014, according to a study from the National Center for Education Statistics.

In Detroit, where teacher pay is especially low, that number could be even higher. Vitti has vowed to increase teacher pay, and a new contract ratified last summer gave teachers their first real raise in several years. But that was not enough to bring teachers back to where they were when they took a 10 percent pay cut in 2011.

Dawn McFarlin, a former Detroit Public Schools teacher, launched her T-shirt company as a side gig as a way make extra money. After years without a pay increase in the city’s schools, she’s now working in another district, but she’s still hawking shirts to her former colleagues. Her top tee says “I Teach in the D” on the front.

So far, she’s sold about 500 shirts at $25 each, mainly to friends and through her Facebook page. She said she uses the profits to pay bills and fund her children’s travel expenses for sports.

“As a teacher, I know how it feels to be in the grocery store, trying to make ends meet,” McFarlin  said. “I was thinking of the struggle teachers go through, and that’s how the shirt came about.”

Here’s the complete policy that the school board is considering. Board members will review the policy next at the full school board meeting in February, where the public can address the board.

“Outside employment is regarded as employment for compensation that is not within the duties and responsibilities of the employee’s regular position with the school system. Employees shall not be prohibited from holding employment outside the District as long as such employment does not result in a conflict of interest nor interfere with assigned duties as determined by the District.

The Board expects employees to disclose outside employment. The Board expects employees to devote maximum effort to the position in which employed. An employee will not perform any duties related to an outside job during regular working hours or for professional employees during the additional time that the responsibilities of the District’s position require; nor will an employee use any District facilities, equipment or materials in performing outside work.

When the periods of work are such that certain evenings, days or vacation periods are duty free, the employee may use such off-duty time for the purposes of non-school employment.

This policy prohibits outside supplemental employment while on any type of leave.”