Millot: How MA Ed. Agency Head Overrules Staff and Gets a Charter Approved

There was nothing particularly remarkable about the Gloucester Community Arts Charter School (GCACS) application process until AFTER the Massachusetts Department of Elementary and Secondary Education’s (DESE) Charter Schools Office (CSO) staff wrote its recommendation against approval for the Department's Chancellor and Board.

Then the political appointees got involved.....

State Inspector General Gregory Sullivan found that "CSO staff conducted the comprehensive application process established by the BESE (Board of Elementary and Secondary Education) and DESE in accordance with law and regulation and that at the end of that process... concluded that the GCACS application had failed to meet the required criteria." The school board failed to makes the case that its own schools offered sufficient programmatic diversity to prelude GCACS or to demonstrate that Gloucester's population was small enough to push the application into the regional charter school category. Yet, in the end, the applicant could not convince staff that the school would meet the quality standards required for charter approval. There is absolutely no evidence that the staff was biased for or against Gloucester or the applicant, and substantial evidence of the staffs’ neutrality, integrity and expertise over the years. Absent some external intervention, this application was headed for oblivion.

The document provided to charter school applicants and containing the Massachusetts' charter application states, “[t]he [DESE] commissioner will not recommend that the Board (of Elementary and Secondary Education (BESE)) award charters to applicant groups whose applications do not meet the stated criteria for a charter in the application, as corroborated in the final interview of the applicant group by the Charter School Office.” On February 4, 2009 the Office presented its final report to Commissioner of Elementary and Secondary Education, Mitchell Chester, finding that the GCACS application did not meet approval criteria for its academic program, organizational viability, or likely fidelity to its proposed mission.

On February 5,  state Secretary of Education Paul Reville sent Chester an email arguing that political factors related to support for the Governor’s broad education agenda should be part of the decision process on three charter applications coming before the Board, including that of GCACS. Reville warned Chester 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." While recognizing that it was a “bitter pill” for the Commissioner to swallow, and asking Chester not to view his request as "an independence matter," the Secretary suggested that approval of the Gloucester charter was the “best candidate” for the purpose “of positioning (the Patrick administration) so that we can be viable to implement the rest of our agenda."

The Inspector General’s report explains Chester's next steps:

According to the written record and testimony of DESE officials, (Commissioner Chester recommended to the BESE that it approve the GCACS charter) without having reviewed CSO’s criteria-by criteria analysis or having undertaken any subsequent process by which he determined that the GCACS application had in fact met the established criteria. Instead, Commissioner Chester made a general recommendation to the BESE at its February 24, 2009 meeting, stating, “This is a school that in my mind is viable, has a great chance of success, has put together a sound plan, and therefore rises to the level of warranting approval on your part”…. In making his recommendation to the BESE, Commissioner Chester described in great detail the rigorous and elaborate process that had been employed by the CSO in reviewing the charter application, but he did not inform the BESE that CSO had concluded that the GCACS application had failed to meet the criteria required for approval…. After hearing Commissioner Chester’s recommendation, the BESE approved the GCACS charter on a vote of 6-4, with one member indicating by phone that she opposed granting the charter, resulting in 6-5 BESE support in favor of awarding the charter.

(Note: Secretary Reville and Chester voted in favor of the application. Had the Commissioner voted against approval, the charter would have been denied.)

During an interview with the OIG, Commissioner Chester acknowledged that he had been informed by the CSO on February 4, 2009 of CSO’s conclusion that the GCACS application did not meet the criteria for final approval. He stated that in his opinion, the decision about whether or not to recommend approval or not was his alone to make. Commissioner Chester was asked under what authority he had recommended that the BESE approve the GCACS application when the procedures for 2008-2009 Application cycle stated, “The commissioner will not recommend that the Board award charters to applicant groups whose applications do not meet the stated criteria for a charter in the application, as corroborated in the final interview of the applicant group by the Charter School Office.” Commissioner Chester responded that he makes the recommendation and that “otherwise you don’t need a commissioner.”….

Based upon Commissioner Chester’s statements during this interview, the OIG concludes that Commissioner Chester believes that he is justified in making a recommendation in favor of or opposed to the granting of a charter irrespective of whether the applicant meets all of the established criteria and irrespective of CSO’s conclusions.

In his letter to Governor Patrick, responding to the IG report, Chester agrees:

The “rule” to which the IG refers is not a rule, regulation or a statute, nor was it established by the BESE. The IG is referring to a Q&A guidance document on the DESE’s website, which lays out the charter school application process, and affirms that the judgment lies with the commissioner. It makes clear that the commissioner recommends to the BESE only those charter applicants whose applications meet the criteria…. The commissioner’s recommendation is informed by the application and the analysis by the CSO as corroborated in the final interview…. I reviewed the application and the strengths and weaknesses that the CSO identified in its evaluation in relation to the criteria, and had several discussions with the CSO director and associate commissioner. Based on my review and deliberation, I exercised reasonable judgment as commissioner that the application should be recommended to the BESE…. In hindsight, I wish I had informed the BESE that the CSO had advised “do not recommend.”

TWIE readers might reasonably wonder what BESE members were doing throughout this process. There is a case to be made that the Board’s overall due diligence on the GCACS application was not up to standards for a decision with substantial implications for the children, parents, taxpayers, and citizens of Gloucester. As it turns out, the local public hearing on GCACS required by BESE regulation was postponed, no Board members were present when the Gloucester hearing was rescheduled, and rules were waived to give that hearing the same status as a hearing where Board members were in attendance.

The Board was never informed that the CSO either opposed authorization based on serious shortcomings in  the GCACS application. Given the importance of chartering decisions, wouldn't it be standard practice for DESE to provide members with some kind of paperwork supporting a Commissioner's recommendations? Maybe not the CSO's full report, but perhaps a summary, or at least a one-page memo covering the application's key features, the CSO's recommendation, the Chancellor's recommendation, and some explanation when the Chancellor overrules staff? Wouldn't the Chancellor consider this a requirement in his oral remarks? Wouldn't the Board consider the absence of such information a material flaw in the process? To say the proceedings lacked the proper formality seems an understatement. Absent relevant substantive information, it is hard to see how the Board's decision here is  anything but arbitrary and capricious.

When combined with the Secretary’s undisclosed political communication to the Commissioner, these facts might reasonably cast doubt on the integrity of the process. Most outsiders - even insider outsiders - agree. The Governor would really like BESE to walk back the cat. There is more than one upset legislator on Beacon Hill. An important legal argument taking place between the IG and the Chancellor, and now that Martha Coakly has free time, the Attorney General might take up the matter.  But the Chancellor, DESE, and the majority of BESE stand firm in their judgment.

(Note: Secretary Reville's email and the IG report were referenced in the first post in this series, Chancellor Chester' letter in the second. Readers might also be interested in reader the January 20 letter from State Senator Bruce Tarr and State Representative Ann-Margaret Ferrante to Governor Deval Patrick requesting that he seek an advisory opinion from Attorney General Coakly.)

I'm squarely on the side of those who argue the BESE process was so flawed that the GCACS charter is a nullity. But, whether it is or not, it represents a low point in chartering and entirely at odds with sound public policy. Oh yes, and its wrong!

Next: Andrew Rotherham and EdSector were arrogant and/or idiots to believing they had the right to remake Tom Toch's report on Charter Management Organizations and defraud the reading public. Dennis Bakke and Imagine were arrogant and/or idiots to believe they had the right to control what the law demands be independent charter schools and get away with it. There's no shortage of arrogance and/or idiocy to discuss here.