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Blue Sky case puts spotlight on unresolved due-process issue

Second of two articles
On Monday, the operators of Blue Sky Online School and officials from the state Department of Education (DOE) were supposed to gather in St. Paul for a two-day hearing that was to establish once and for all whether the school, a statewide virtual high school with a bricks-and-mortar facility in West St. Paul, should close.

The hearing, however, has been postponed at the state’s request because the two sides are in settlement talks.

The DOE asserts that the school has made persistent, serious violations of state law, graduating students who have not completed required coursework and failing to offer curricula that meet department standards. After firing a number of highly public warning shots over the Blue Sky’s bow, it announced earlier this spring that the school would be closed.

BlueSky Online

In response, Blue Sky asked the state Court of Appeals [PDF] to intervene, claiming that [PDF] the department owed the school a public hearing. [PDF] Granted such a forum, its leaders said, [PDF] they were sure they would be vindicated.

In the last two years, Blue Sky has reorganized its staff, board and administration, invested in curriculum used by other, respected online schools and delivered stack upon stack of documents to the DOE. Administrators claim that every time they answer one complaint, they’re presented with another.

At hearing, both sides would lay out answers
Who’s right? Who knows. A MinnPost review of available records in the case didn’t reveal anything close to a definitive answer. And so Your Humble Blogger had been looking forward to the hearing, to be conducted by the state Office of Administrative Hearings. There, both sides were to lay out their answers in plain English to an administrative law judge who, as a neutral finder of fact, would at long last create an official record.

On Wednesday we ran a story that described what learning looks like at Minnesota’s first wholly online high school and who can benefit from cyber-school, and that explored issues related to whether Blue Sky is living up to its promise.

Today, we’re interested not in whether the school should close, but whether the state has violated its right to due process and whether an outside fact-finder should be part of that process.

Originally conceived as alternatives for frustrated families and incubators for innovation, charters have not, on the whole, outperformed their mainline counterparts. The standouts often do offer strategies ripe for replication, but the persistent underperformers have proven no easier to close or turn around than failing public schools.

This year, prompted by the Blue Sky controversy, now in its second year, lawmakers from both parties moved to strengthen the DOE’s authority to act unilaterally to close schools. That provision was, of course, vetoed by Gov. Mark Dayton along with the rest of the GOP-crafted omnibus education legislation.

Should it be revived? Again, good question: The hearing scheduled for this week also might have shed light on whether the department badly needs the increased authority to protect taxpayers and schoolchildren, or whether it needs to clean up its own oversight act.

Freedom — with some accountability
When Minnesota passed the nation’s first charter-school law in 1991, its framers wanted it to contain some tension. The whole idea was to untether tuition-free, publicly funded schools from a bureaucracy that smothered innovation — but neither should the independent programs be able to bill the state for student tuition dollars with no accountability.

And so — drastically simplified — a kind of arms-length legal structure was created wherein someone who wanted to start a school had to find a sponsor: an agency such as a nonprofit, school district, institute of higher education or even the state Department of Education itself.

The agency would issue a charter, the name of the legal document used to create individual schools. If the school performed badly, either academically or administratively, the sponsor could revoke or refuse to renew its charter.

If the DOE thought a school had problems, it could terminate the charter — but only after a public hearing. Before whom? During which what happens? The law didn’t specify.

And for the first decade, it didn’t matter. Most charter schools that blew up did so amid gross mismanagement. Bad-actor founders and leaders made off with checkbooks, misrepresented enrollment or imploded because someone underestimated the complexity of running a school. They rarely got any sympathy from their sponsors, so there was rarely a need for the DOE to step in.

In 2001, then-Rep. Matt Entenza, DFL-St. Paul, drew attention to the problem, singling out examples of charter operators receiving what seemed like excess compensation or otherwise playing fast and loose with state money.

The PEAKS schools
One of them was a small chain of outstate charters, the PEAKS schools, which came under scrutiny by the DOE’s predecessor, the Department of Children, Families and Learning. The schools’ sponsor, Central Lakes Community College in Brainerd, agreed that at least one of them needed to close, but went to bat for a 51-student school in nearby, tiny Pillager.

Official records on the case seem to be AWOL — a story in and of itself — but the contents of the yellowing file the Pillager school’s new administrators pulled from their archive at MinnPost’s request jibe with the accounts of some of those who were present. Weeks after the state cut off funding, the school and sponsor protested their notice of closure and, on June 20 and 21, 2001, an administrative law judge held two hearings in the Brainerd area.

Chief Judge George Beck did not, however, issue an official opinion. After two days of testimony, according to two people who were in attendance, it was clear the CFL’s case was far from airtight. The parties settled, the school got its back state aid, reconstituted with new leaders who were better at dotting their i’s. It is still in operation today.

Another school CFL had issues with was the Minnesota Transitions Charter School, in Minneapolis. Again, the official record created during arguments before the Office of Administrative Hearings showed that the state had not documented a solid case against the school.

Following what some of those involved recall was a blistering opinion from the judge — perhaps also lost to the annals of history — the department started over and documented its legitimate concerns, which the school addressed. It, too, is still in operation.

Cited as having poor record of closing charters
Fast-forward the better part of a decade, and Minnesota was singled out by the very conservative Fordham Institute as having one of the country’s worst records of closing failing charters. Education reformers throughout the state were already at work on a law that would make sponsors, now called authorizers, more accountable for their schools’ performance.

Authorizers’ procedures would have to undergo a thorough vetting by the DOE to prove that they were capable of closely regulating every aspect of a school’s performance. The agency would still sign off on each individual charter, but once an authorizer had passed muster the assumption is that if the authorizer thinks a school should operate, it should.

Two years ago, when the state first received complaints about Blue Sky, the school was authorized by the Brooklyn Center school district. Feeling stretched by running its mainline schools, the district decided to get out of the charter business when the law changed and asked Blue Sky to look for a new authorizer.

Blue Sky did, last spring signing on with Novation Education Opportunities, one of the first authorizers to pass muster under the new law. Instead of simply pulling the plug on the school, which had been under investigation for the better part of a year at that point, the DOE approved Novation’s application to charter Blue Sky.

New board hired new leaders
No one at DOE has ever confirmed as much, but it is widely thought that the first complaints were lodged by a former administrator and two fired teachers. Blue Sky’s current leaders say the initial complaints — that students were being graduated without having completed required coursework — had some validity. The new leaders were hired by a new board with a specific mandate to clean things up, which they say they have done.

In the documents the state has made available, the number of diplomas the DEO believes were improperly awarded has been blacked out, making it impossible to know whether Blue Sky’s assertions that the incidents were few and in the past are right.

In any case, the new school administrators say they supplied the state agency with the proper documentation and heard nothing. The better part of a year went by and, according to documents filed in the case, DOE received calls from unidentified individuals asking how the investigation was proceeding.

That was last fall. Over the winter, the state and the new school leaders went back and forth to no avail. In March, the DOE told Novation to close the school. Novation asked for time to do its own audit, which it said revealed no ongoing problems.

After the DOE rejected that appeal, Blue Sky filed with the state Court of Appeals arguing, essentially, that its right to a public hearing had been denied.

Differing opinions on the right to a hearing
There are differing opinions among school administrators and policymakers just what that hearing right is. Many believe the authorizer must conduct the hearing; others, including Blue Sky’s attorney, Cindy Lavorato, believe the Office of Administrative Hearings is the best place to create a solid record.

Minneapolis Public Schools recently held a hearing in the case of Friendship Academy, a school it chartered that was due for renewal. Superintendent Bernadeia Johnson recommended a year’s probation, but in April the school board took a preliminary vote not to renew. In May, a hearing was held at a board meeting. Afterward, the board voted 6-1 to give the school the year Johnson had requested.

Last month, the DOE agreed to Blue Sky’s request to go before a neutral finder of fact to create a record. After several negotiation sessions, on Friday the state asked to postpone the hearing.

Leaving aside for a moment the question of whether Blue Sky should stay open, if DOE’s critics are right a settlement would mean that, 20 years and one major reform later, it’s still not entirely clear what a charter school’s due process rights are and whether Minnesota can close bad charters any more easily than failing mainline schools.

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Comments (2)

  1. Submitted by Nate Archibald on 06/30/2011 - 02:44 pm.

    Charter schools are unique because they are both public schools as well as 403B Non-profit organizations. As a non-profit they are allowed due process rights.

    It seems important as well that a school have a neutral judge when there is a disagreement with the DOE. To have the DOE as both prosecutor and judge is to create a kangaroo court that results in a witch hunt where, no matter how well the defendant shows their innocence, the judgment is guilty.

    How long will Minnesotan’s and policy makers allow the DOE to spend its energy trying to destroy progressive schools rather than assist them? The DOE is more often feared by schools rather than used as a collaborative organization for improving education. Because of this Minnesota’s DOE has lost its position as a leading innovator in education throughout the country. Instead of working side-by-side with educators it has taken on the role of judge, jury and executioner. A system of due process to ensure that the DOE is not a power-hungry organization bent on personal agendas rather than best practice innovation is in order. It seems that this case between BlueSky and the DOE would be an establishment of case law that would be used in the future. It begs the question of why the DOE called for more time to make their case when they have been the aggressor toward BlueSky for the past two years.

  2. Submitted by Ray Schoch on 07/01/2011 - 09:05 am.

    This was a fine piece, Beth, and a worthy complement to the preceding article.

    As a Certified Old Person who doesn’t even play a lawyer on TV, my opinion doesn’t carry much weight, but while I’m not entirely on board with Nate Archibald in #1, I do agree that having the DOE serve as both “prosecutor” and judge in a case that involves charter school certification simply cannot be fair to the school. I say that as someone who spent his professional life in public schools, and is inclined to be skeptical of charter schools as they’ve been implemented around the country.

    On the other hand, having spent my professional life in public schools, I’m well aware of the potential for bureaucratic suffocation of innovation in schools and school districts, be they big and urban or small and rural. In fact, in the current educational environment, the degree of weight assigned to the results of standardized, state-wide tests works against trying something new to see if it works better. As is clear from the record, student achievement in charter schools in general has not been significantly better than student achievement in “regular” public schools, but there are plenty of individual cases where an idea that’s new or different or applied in a unique way DOES seem to make a difference, and merits further experimentation.

    Two problems seem to be consistent. “Scaling up” from a single class or grade level to a larger school district, or even a statewide curriculum decision, has proven persistently difficult. What works in Mrs. X’s classroom may or may not be transferable to every 4th grade classroom in the district. The other issue I’ll label, for lack of a better term, “Fade out.” What worked for Mrs. X’s classes a dozen years ago isn’t likely to seem so fresh and exciting after those dozen repetitions, and part of what makes “new” and “innovative” work is often that it IS “new” and “exciting.” When the luster of newness wears off, the energy level is harder to maintain, and the decline in energy level often is accompanied by a similar decline in effectiveness. Much of this sort of thing seems likely to bubble to the surface in online education precisely because it IS new and different, and because there ARE kids who don’t function well in a standard classroom environment. Further, because school districts are perpetually strapped for cash, even though teaching is not especially lucrative, online education may be appealing strictly for the cost-savings aspect, which in some situations may outweigh other questions about its effectiveness.

    In the end, I tend not to trust state regulatory agencies in education, largely because – at least in my experience – too many of the people in them have little or no experience in actual classrooms with actual children. A Ph.D. in education, sadly, does not necessarily mean that the holder of the degree is a master teacher with many years of successful classroom experience. That said, however, and as I said in commenting on the first article in this series, I’m also skeptical of online education as being much more than glorified correspondence courses.

    In the real world, a totally and completely neutral judge isn’t likely – judges are human beings, and have their own lifetime experiences to bring to the mix as well as their legal training – but biases will be tempered by both training and the tendency most judges display toward taking the long view. I’m not qualified to pass judgment on whether or not Blue Sky was denied due process, but it certainly seems a possibility, and that’s a strong argument in itself for perhaps a statutory change to provide for a much clearer path to be followed when disputes such as this one arise. There ought to be a way for a charter school to show that it IS doing what it said it would do, just as there ought to be a way for the state to shut down a charter that’s not even close to meeting the standards it has to meet – and those standards themselves could stand to be tweaked so that they’re clear to all concerned.

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