Millot: MA IG Report Spotlights the Political Underside of Charter Authorization

This series examines how political pressure from Massachusetts' Secretary of Education Paul Reville led Department of Elementary and Secondary Education (DESE) Commissioner Mitchel Chester to see that the application of the Gloucester Community Arts Charter School (GCACS) was approved by the state's Board of Elementary and Secondary Education (BESE). This month, the state's independent Inspector General, Gregory Sullivan, found the charter  "in violation of the provisions of law, regulation, and procedure.... never validly awarded and should be deemed void ab initio." The Governor seems to agree. The Commissioner, the Board and the charter applicant (holder?) beg to differ.

The case offers insight into the political nature of charter authorization, and why the charter market will not be ready for the scale implied by RTTT until the responsible agencies internalize objective criteria for charter approval and retention. My goal is to untangle the web of political competition - Democrat v. Republican, executive v. legislative branches, local v. state government, and pro v. anti charter, interesting as they are - set it aside, and get at the substantive issues of policy raised for the national market in public charter schools.

As a legal matter, this story begins with an email of February, 2009 from Secretary Reville to Commissioner Chester, unearthed by Gloucester Daily Times reporter Patrick Anderson in a state Freedom of Information Act request, and printed in full below. (Once again thanks to the investigative journalism of public education still alive at the local level.) I've also included the Inspector General's summary of findings. This link to Anderson's reporting will give TWIE readers access to the political battles over the Gloucester Community Arts Charter School (GCACS) up to the Inspector General' report. A review of the report issued by the Office of the Inspector General (OIG) will help inform readers' assessment of my subsequent posts. The excerpt below comes from the Inspector General's letter of transmittal to Governor Duval this January.

The full text of the e-mail message from state Education Secretary Paul Reville to state Education Commissioner Mitchell D. Chester regarding the Gloucester charter school application, as obtained by the Times.

From: Reville, Paul

Sent: Thursday, February 5, 2009, 11:54 p.m.

To: Chester, Mitchell D. (DOE)

Subject: charters

Mitchell,

Hope all's well and warm in AZ. I appreciated our talk today and your openness and flexibility. This situation presents one of those painful dilemmas. In addition to being a no-win situation, it forces us into a political cul de sac where we could be permanently trapped. Our reality is that we have to show some sympathy in this group of charters or we'll get permanently labeled as hostile and they will cripple us with a number of key moderate allies like the Globe and the Boston Foundation. Frankly, I'd rather fight for the kids in the Waltham situation, but it sounds like you can't find a solid basis for standing behind that one. I'm not inclined to push Worcester, so that leaves Gloucester. My inclination is to think that you, I and the Governor all need to send at least one positive signal in this batch, and I gather that you think the best candidate is Gloucester. Can you see your way clear to supporting it? Would you want to do the financial trigger even in light of likely stimulus aid?

Thanks for not seeing this as an independence issue. It really is a matter of positioning ourselves so that we can be viable to implement the rest of our agenda. It's a tough but I think necessary pill to swallow. Let's discuss some more tomorrow.

Excerpt from the Inspector General's letter of January 2, 2010:

A synopsis of the findings of this review is as follows: 1) The OIG concludes that Massachusetts laws and regulations require that before a charter school applicant group may be granted a charter by the BESE, the DESE must first determine that the application has met certain specified criteria; 2) the OIG concludes that the DESE Charter School Office (CSO) conducted the comprehensive application process established by the BESE and DESE in accordance with law and regulation and that at the end of that process the CSO concluded that the GCACS application had failed to meet the required criteria; 3) the OIG finds that the procedures established by BESE and DESE for the 2008/2009 Charter School application cycle prohibited the DESE commissioner from making a recommendation that the Board award a charter to an applicant group whose application did not meet the stated criteria for a charter in the application as corroborated by the CSO; 4) the OIG finds that Commissioner Mitchell D. Chester recommended that the Board award a charter to GCACS in contradiction of the process, constituting a procedural error; 5) the OIG finds that Commissioner Chester did not conduct any process by which he made an independent determination that the GCACS application had met the required criteria; 6) the OIG concludes that because DESE never made a determination that the GCACS application met the criteria, it was beyond the legal authority of BESE to grant a charter to GCACS; 7) the OIG concludes that the process used in approving the GCACS charter was procedural defective; and 8) the OIG concludes that BESE’s granting of the charter was without authority of law. For these reasons, the OIG concludes that the charter should be deemed void.

Almost every charter statute proceeds from the assumption that school districts are unlikely to authorize financial competitors, creating the need for chartering agencies and processes that will encourage those willing to operate their own independent schools. In most cases the statutes established criteria for review, but in practice the scope of discretion employed by these agencies in applying these criteria has been virtually unlimited. This process has been entirely contrary to the principles of administrative law implicitly imported into charter statutes when the legislature delegates decision-making to the chartering authority. But while the process of administrative law is deeply embedded in the culture of agencies that have been regulating markets for a century or more, it is really quite alien to public education. At the end of the day, what the Massachusetts Inspector General has done is offer the state Department of Education a close substitute for "The Idiot's Guide to Administrative Law." It could have implications for the implementation of charter law in every state - but, that depends on the actions of stakeholders.

Next: Clearing away the dense clutter of political cobwebs so we can get to the legal and policy issues.