Millot: Arrogance and Idiocy in Massachusetts Chartering Policy
Setting aside the question of legality, the political appointees running Massachusetts public education would probably not recommend their approach to the Gloucester Community Arts Charter School (GCACS) application as a case study in good policy making. Just about everyone but the Commissioner of Elementary and Secondary Education and the majority of Board members who voted to approve the problematic school probably would suggest it as a lesson in improper political influence.
TWIE readers who have been following this series (starting here) will not be surprised that I see three parties who failed completely to meet their public obligations, and whose gross errors bring a more general problem in chartering into stark relief.
Secretary of Education Paul Reville was hardly the first chief state school officer in Massachusetts or the nation to bend with the wind, appease special interests, or trade strict principle on a small matter to pursue a larger goal. (Still, TWIE readers must question just how sound the Secretary's judgment could be that if GCACS was not approved, the Patrick Administration would lose the support of a major foundation and the Boston Globe.) Nor is he the first to "suggest" that subordinates follow suit. The line between the exercise of reasonable discretion and violations of law is more of a broad margin than a fence, and it is within this region that political appointees earn their keep.
Even knowing that the application was less than perfect, Commissioner Mitchell Chester would consider its approval "something of a bitter pill," and the request might raise some questions about the "independence" of DESE, Reville did nothing illegal asking Chester to lean towards approving GCACS. Like Reville, Chester is both a political appointee and a member of the state board that votes on charter applications. The exchange was the day-to-day stuff of conversation between political appointees.
Reville's arrogance and idiocy was in putting the substance of his communication into an email subject to the state's freedom of information act. He should have used the phone. But it was also fortuitous for TWIE readers, because it laid the basis for a case that chartering decisions are subject to political influences entirely at odds with the question of an applicant's actual capacity. It is widely understood that school districts with the power to charter rarely use it, because they are not interested in competition - especially from highly qualified applicants. What is not so well-understood is that chartering agencies might be interested in approving applicants of questionable capacity. This is a matter of some importance given the charter movement's push to eliminate state caps, the influence of Charter Management Organizations, and the federal government's expectation that states competing for Race to the Top funds will rely heavily on charter schools to bring reform to scale.
Commissioner of Elementary and Secondary Education Chester Mitchell responded poorly to Reville's email. It is impossible to prove whether Reville was in effect directing Mitchell to vote for GCACS, or going further and asking the Commissioner to deliver a majority on the Board of Elementary and Secondary Education (BESE). Nevertheless, it is reasonable to assume that Chester would not consider the Board's rejection a satisfactory answer to Reville's email. It is also reasonable to assume from that email that Chester was not favorably disposed to the GCACS and was concerned about his department's independence. All we know is that the bureaucratic process was well on its way towards an unfavorable recommendation, the Commisioner must have known about it (how else would he have any opinion for Reville to respond to in his email?), within days his view was in line with Reville's, and he had powerful tools at his disposal to influence Board members.
Chester's arrogance and idiocy was in simply ignoring the Department Charter Schools Office (CSO) documentation, setting it aside from BESE deliberations on GCACS, and providing an oral argument for approval that did nothing to dispel an impression that the CSO's work supported his recommendation. In the end, this is the basis of the Inspector General's argument that the Board's approval was a legal nullity. (Aside: To the extent that Secretary Reville was aware of the CSO report he was almost certainly obligated to bring to the boards attention before any vote.)
With a little bit of work, Chester could have achieved the same outcome within the law. Looking at the subsequent behavior of the board members who voted for approval (e.g., stubbornly sticking with their support for the Commissioner), all the Commissioner needed to do was document almost any plausible argument for arriving at a conclusion different from the CSO, provide that to the board members in preparation for their meeting, and make his speech. I see no reason to doubt that the board members who voted with the Commissioner would have voted any differently.
What is truly disturbing here is the Commissioner willingness to dispense with all procedural formalities and his calculation that he could get away with it. This isn't a third-level civil servant we are talking about, or a politicized junior appointee - this is the head of the agency. If Chester will act so irresponsibly here, can he really be trusted to act responsibly elsewhere? Is the fact that Governor Patrick has not asked for his or Reville's resignation some indication that the integrity of charter decisions is less important than other education matters? And if that's true, don't we come back to the questions discussed regarding Reville above?
The arrogance and idiocy of the Massachusetts Board of Elementary and Secondary Education - or at least those appointed members who voted for GCACS - was in acting as a rubber stamp for the Commissioner and, when confronted with a flawed process, not only sticking to their decision but refusing to ask the Attorney General for an advisory opinion on their proceedings. The entire board failed in its obligation to participate in the local hearing held in Gloucester, had no objection when DESE gave the session the status of such a hearing, and apparently read nothing that might provide the basis of an informed vote on the application. It simply listened to the Commissioner. It's hard to see what the function of such a process is other than a procedural Potemkin Village. The members - and especially the chair, should be completely ashamed of themselves and resign, so the Governor can appoint citizens who take their public trust seriously.
The disturbing question here is how many chartering agency boards across the nation look like Massachusetts? This chartering process was a joke, and it's almost certainly not the only prank of its kind.
Note: Last November, I responded to an RFP issued by DESE's General Counsel for a legal analysis of the Board's chartering process. (Surprisingly, I didn't win the competition.) In the interests of full disclosure, I'm making the RFP and the substantive portions of my response available for downloading below.