Chartering a Course Toward Access

Charter schools learning to comply with state freedom of information laws

From the Winter 2004 issue of The News Media & The Law, page 30.

By Jeff Lemberg

Steve Bivens heard all the ru mors, but it wasn’t until lo cal school officials began stonewalling his reporters that he knew he was on to something big.

As producer for the “undercover unit” at KTRK-TV in Houston, Bivens had his reporters send freedom of information requests to nearly 50 area charter schools in search of financial records as well as the names, positions and dates of birth of all school employees. Most school officials refused to comply, which led the state attorney general to eventually issue an order requiring them to supply the information.

“A lot of them thought they didn’t have to turn over their records,” said Bivens, whose station aired the story “Bad Apples” in November 2001. ” ‘We’re not a public school in the traditional sense, so we don’t have to give you our records,’ they’d say. But they were wrong.”

What the station eventually discovered was a charter school system gone awry.

The financial records showed that a handful of charter school officials used taxpayer money to make purchases such as leather outfits, lingerie, jewelry and even dog food. Enrollment records had been falsified to acquire more per-pupil funding from the state. Employee records showed that more than a dozen teachers and staff had criminal records, including rape and murder convictions.

“There is no explanation for these problems, other than we should’ve done a better job watching them,” Bivens said.

In most of the 40 states that have laws allowing their creation, charter schools are hybrids, neither fully private nor fully public. Run by nonprofit organizations and private management companies — state laws differ in their details — charter schools operate largely through public financing, yet without many of the bureaucratic procedural requirements imposed upon “traditional” public schools. As a result, it is not always clear whether their records are open to the public, and to whom school official s are accountable.

In addition to money generated through fund-raising or supplied by private corporations, all charter schools receive state and local funding on a per-pupil basis, approximately $5,000 on average. For that reason alone, most states consider their charter schools to be public institutions that are subject to the same public accountability laws — open records and open meeting laws among them — any other state agency or government body must follow.

The problem, many journalists say, is that a state’s “considerations” and a definitively worded law are two vastly different things.

A 2002 report by The Brookings Institute, a Washington, D.C.-based think tank, found that more than half of the states that have a charter school law initially provided the schools with “blanket waivers, under which schools are accountable only for the terms of their charter, plus health, safety and civil rights requirements.” The result, wrote authors Paul Hill and Robin Lake in “Charter Schools and Accountability in Public Education,” is mass confusion on a statewide scale.

“The political process churns out more than mixed signals about the purpose of the law,” they found. “Accountability provisions of the law are often similarly vague or misaligned within a particular piece of legislation.”

Missouri’s law, for example, says a charter school is an “independent, publicly supported school” that must only “comply with laws and regulations of the state relating to health, safety and minimum educational standards.” Otherwise, the 2002 law says charter schools are “exempt from all laws and rules relating to schools, governing boards and school districts.”

Yet, James Klahr, an assistant attorney general for Missouri who handles clarifications of the state’s open records law, says government regulations of publicly funded groups are not that black and white.

“It seems to me an argument can be made . . . that charter schools are a public government body,” and if a school is public, its records would be subject to the state Sunshine Law, Klahr said, noting that Missouri’s legislature or his office should probably clarify the point.

When reporter Jen Sansbury first uncovered gross financial mismanagement at the Emma L. Harrison Charter School in Waco, Texas, in 1999, school officials there did everything they could to avoid accountability. Records requests by Sansbury were repeatedly denied, and the school’s board of directors meetings were routinely held behind closed doors. At one point, the school even filed for a court injunction to keep Sansbury and all other reporters from the Waco Tribune-Herald off school grounds. A judge immediately denied the request as a prior restraint on the press.

“They felt like they had their own little fiefdom,” said Sansbury, now an education reporter at the Atlanta Journal-Constitution. “They didn’t really feel they were responsible to the public.

“I think it was indicative of what was going on elsewhere at the time,” she added. “They thought they were exempt from a lot more than they were.”

Based largely on Sansbury’s reporting, the Texas Education Agency launched an investigation and eventually revoked the school’s charter. It closed owing the state $850,000. Because of loopholes in the law, Texas never recovered that money.

“Charters are not working in our state,” state Rep. Jim Dunnam (D-Waco) told The New York Times, in an April 2002 article. “We treat them like road contractors — give them the money and God knows what they do with it.”

Similar reports of fiscal malfeasance at charter schools soon began to crop up all across Texas. In September 2001, six years after the state first authorized the schools, lawmakers agreed to tighten regulations. Led by Dunnam, the Texas legislature amended the charter school law, requiring the schools to abide by state nepotism and conflict-of-interest laws, as well as open records and meeting laws.

Supporters of school choice say some failures are to be expected; the nation’s first charter school was created just a decade ago, in St. Paul, Minn. Others say charter school officials are simply too busy reforming America’s public education system — with the vast majority of resources allocated to in-class instruction — to handle myriad administrative tasks required when one takes public money. The Center for Education Reform reports that there are currently 2,700 charter schools serving 685,000 stude nts in grades K-12.

“In some states, very nearly the last thing on their list to do is to figure out if records are open,” said Jane Elizabeth, an education editor at the Pittsburgh Post-Gazette. “Generally, they don’t have a lot of administrators to handle the requests.”

Monica Mendoza, a reporter who spent three years covering charter schools in Texas before joining the education desk at The Arizona Republic in 2002, says the problem often runs deeper. Many school choice officials, she said, are simply ignorant as to what their state’s charter school law says.

“Whenever I did request records, they didn’t know what the law required them to do,” Mendoza said. “Those at traditional public schools have been around the block a million times before with reporters. They know what they need to do. With charters, many almost feel as if they don’t need to comply.”

In the spring of 2000, The Booth Newspaper Company in Michigan conducted an open records audit of the state’s 176 charter schools. The company also sent records requests to 87 traditional public schools located in the charter schools’ neighborhoods.

While 95 percent of the traditional public schools complied fully with the requests — which sought, among other things, teachers’ names, positions and salaries — only 47 percent of the charter schools did. The remaining 53 percent of charters either provided no information or incomplete information within the 15 days allowed under the law.

“It’s not, ‘Are we doing all things the same way? Are we following the same laws and regulations?’ ” Peter Ruppert, president of National Heritage Academies, told the newspaper for the article reporting the results. National Heritage, a for-profit private company, operated 20 charter schools in Michigan at the time.

“Charter schools were designed to be free from some of the regulations and some of the requirements the traditional public education currently has,” Ruppert said.

National Heritage Academies currently operates 39 charter schools in five states — Michigan, Ohio, North Carolina, New York and Indiana. Only Edison Schools Inc., a private company that operates 99 schools in 20 states and Washington, D.C., runs more. Although private management companies such as these make a profit through the use of public funds, no state requires the corporations themselves to open their records and meetings to the public. The schools they operate are a different story.

Soon after Booth published its findings, National Heritage announced it would begin making teachers’ salaries public upon request — in accordance with Michigan’s charter school law. Company officials even went a step further, making personnel records public, the first private education management company in the state to do so, according to Booth.

“Early on, there were a lot of misconceptions about what charter schools are,” said Troy Palmer, the liaison between National Heritage’s corporate headquarters and the local school boards. ” ‘Teachers are not certified! Teachers are not qualified!’ It was important that we released our data so people could see the truth.”

Most charter schools are more than happy to open their operations to the public and press. The same can be said for traditional public schools, too. But like their school choice brethren, not all traditional public school officials feel that they should be held accountable.

This past November, The Associated Press published results of an open records audit of Mississippi’s 152 public school superintendents. The AP sought each superintendent’s name, salary and years of experience, the highest paid teacher and the salary of each high school head football coach. The requests were signed by people who did not identify themselves as reporters.

At the end of the 10 days FOI request recipients are allowed by state law to respond to public records requests, 105 of the superintendents, approximately two-thirds, had not complied. Mississippi does have a charter school law, but it provides so little freedom from financial and organizational regulations that there is only one such school in the state.

Of course, charter schools weren’t created to be anything like traditional public schools, said Dr. Clive Belfield, associate director of the National Center for the Study of Privatization in Education, located at Columbia University in New York. The guiding principle behind the school choice movement was that deregulation would foster innovations in education. In exchange for greater flexibility in determining how they spend their money, who they hire and what they teach, charter schools are to be held solely to strict performance standards. Not bureaucratic ones, Belfield said.

“If charter schools are forced to allocate resources in a particular way, it seems to defeat the purpose of the charter school,” he said. “Open record disclosures would constrain how the school operates.”

When creating a school choice law in 1994, state legislators in Hawaii placed very few constraints on charter schools. In addition to near-total autonomy in who they hire and what they teach, charter schools are also exempt from the state’s open records and meeting laws, known as the Uniform Information Practices Act. Hawaii is the only state in the country that provides such blanket immunity.

When Ken Pilkenton sought financial records from Lanikai Elementary School early last year, he was both a parent of a student there and a member of the charter school’s board of directors. Amazingly, his requests were repeatedly turned down. Pilkenton finally filed a complaint with the state Attorney General’s office, and on June 30 received an opinion letter that contained a one-sentence conclusion: “Charter schools are ‘exempt from all state laws,’ including the UIPA.”

“The idea was to free charter schools from the heavy-handed regulations, the bureaucratic requirements, that were holding back traditional public schools,” Pilkenton, a pilot for United Airlines, said. “But the charter school law seems to have been done in a haphazard way.

“It’s just ripe for abuse.”

Pilkenton said he resigned from the board after a proposal to voluntarily abide by the state Sunshine Act was voted down by the 13-member group.

“There was not even a commitment to comply with the spirit of openness,” he said. “If it serves the community, and is funded by the community, shouldn’t it be open to the community?”