09/14/2015 – Charter Policy

09/14/2015 – Work/Business
eboard link icon Agenda Item – Charter Policy
Nancy JesterWhy was information withheld from the DeKalb Board of Education?
Georgia Charter School AssociationOpen letter from the Georgia Charter School Association
Martha DaltonDeKalb’s New Charter Schools Policy Receives Pushback
D. 2. Amendment to the Bylaws & Policies: Descriptor Code IBB and Regulation IBB

Jose Boza (Director of the School District Charter Office)
This policy is ready for action.  The audit date due to the state stated in the policy should reflect November 1.
Marshall Orson (DeKalb Board of Education)
Dr. Green, you sent us a note that you shared this draft of the policy with the state.  Did we get any comments?
Dr. Stephen Green (DeKalb Schools Superintendent)
We shared it with Mr. Erste.  This past Friday we received some suggestions and I took them as suggestions for things that he would like to see.
Marshall Orson
Can we have the opportunity to see these suggestions?  I’m flying blind.  If there are material comments in his suggestions, I’d like to know.
Dr. Green
I could send it to you in an email right now.
Marshall Orson
I’ve had some concerns about the draft and whether it comports with state law and policy.  If there are comments from the state, I’d be interested in seeing them to see where we are or are not aligned from the state’s perspective before we proceed with voting on this policy.  I’m hesitant on voting on things that are not in alignment and that we have an indication if not a strong suggestion that this is not.
I’d like to at least review the comments the state shared with you to see where they believe there are material differences.
Dr. Green
The state, as represented by Lou Erste, his advice came late Friday to me.  I told him that I would take it under advisement and then proceed in a manner that is in the best interest of the DeKalb County School District.  I have taken his advice under advisement.
If the board directs me to provide that information, I’d be happy to do so.
Marshall Orson
I’d like to see it and have some time to digest it.  Would there be some sense to defer this for 3 weeks until our next meeting.  I have some other issues from my own perspective.  Also, my interpretations may not comport with the state’s view.
Our stated objective was to align our policy with state law.
Dr. Green
We’ve worked very closely with outside counsel who assures us emphatically and unequivocally we are in alignment with state law and policy.
Marshall Orson
I don’t want to go into a long conversation about all the problems I have with this draft.  There are some things I’ve shared with counsel that I don’t think are supported by state law.  For example, the restrictions on charter clusters we’ve placed in our own regulation that is in the face of the statute.  I understand the arguments they say as to why it could be, but I find them troubling.
I think it would behoove us if there was a state level interpretation.  I respect our counsel, but they are an advocate … historically they have been wrong in the past.
This is such an important subject we should at least go through the exercise of understanding the position that we’ve staked out, how the state views our policy.  Especially since we are just trying to align ourselves with state law.
Dr. Green
I respect your request.
Dr. Melvin Johnson (DeKalb School Board Chair)
I ask our legal counsel are we legally compliant with this policy?
Laura Lashley (attorney for Nelson Mullins)
Yes.  Right now the current version is outdated.  It has been our task to get it aligned with state board rules which can be difficult because it changes a lot.  Now there is some stability.  We are confident this version of the policy is compliant.
Dr. Johnson
Please go over the mini sessions we had to go over this information.
Laura Lashley
We had mini board sessions for several hours to discuss charter law and policy in Georgia.  We answered many questions regarding these policy changes.
Dr. Joyce Morley (DeKalb Board of Education)
We are in a position to make a decision we are charged with making and we continuously want to stagnate things and not move forward.  We’ve had the mini sessions.  Again, at the 11th hour there is always a deferral.  That’s why the people have us here to make these decisions.
We have a team of attorneys that we pay a lot.  When we start letting the board be the attorneys and not let the attorneys do the legal work … does the board want to run everything?  That’s why we have attorneys.
We have a superintendent we are paying a hefty package in order to make these decisions.  When we start second guessing the people put in place, educated and well versed, we have to learn to stay in our lane.
Why are we always delaying this vote.  It’s been delayed too long already.  The legal team did a great job.
Vickie Turner (DeKalb Board of Education)
I am in total agreement.  The mini sessions were helpful.  The key phrase is “Are we legally compliant?”
Laura Lashley
Vickie Turner
Yes we are.  I would like us to move forward.
Marshall Orson
I appreciate the desire to move on if I thought we were in a settled position.  There are some material unsettled issues.  For example, in the mini sessions we discussed there were limitations on the autonomy granted to conversion charters that might be more limited to start up charters to things like the Fair Dismissal Act.  But, in fact, there was a court decision in July that appeared to that you could take the Fair Dismissal Act, I’m not advocating that we do that, but you can take that out of the equation by the virtue of the contract with the charter.
Things like that go to the materiality, how we write this policy.  I’m concerned we haven’t thoroughly reviewed.  Another example, state law says “an election held at a school in the cluster”.  You’ve rewritten the provision to say an election held at each school in the cluster.  That’s a stretch to try to regulate that in policy when it’s not in the four corners of the statute.
I respect your position, but it doesn’t mean it is correct or right.  I’m concerned the state has issues.  We don’t want to be antagonistic with state law.  We may be right but I’m not comfortable writing policy where the state might differ.
The decisions we make might unintentionally put us in an adverse position with the state when we could have talked about it and avoided it.  Going back to the elections, we can get clarity on that from the Attorney General.  If we don’t like the state charter office, there are other vehicles to get clarity.
Stan Jester (DeKalb Board of Education)
The attorneys for the state and district have disagreed over the years.  Right now we are second guessing this because we don’t know the state’s guidance on this.
This is a watershed moment.  Are we going to be good partners with the state?  How are we going to move forward, with them or against them?  Right now the state has provided us guidance on this charter policy and I’m being denied that guidance before voting.  I don’t see how we can in good conscious be good partners with the state and not see the guidance provided by the Associate State Superintendent for Policy and Charter Schools.  We are being denied that guidance.
In the absence of that guidance, that’s why we are second guessing what’s going on.
Dr. Morley
I’m not being denied anything.  To say as a board that we are rebelling against the people we have in place to make these decisions.  I am a competent board member.  I will never abdicate my role.  I have fought all my life for my rights and I will never be denied.
We keep delaying these decisions we are supposed to make.  The board is supposed to be filled with competent people.  I’m here for the 100,000+ students.  Let’s move forward.
Jim McMahan (DeKalb Board Vice Chair)
Healthy conversation. We have been elected to vet all information.  I appreciate Dr. Green’s communication with the state.  It is precedent setting that you reached out.
I hate it when we get information at the last second and having to vote on something when we have received guidance from the state and haven’t seen it.  I think it would be prudent to understand that guidance.
I will advocate for full disclose and making decisions on all the facts available.  I would like to dialogue and compare our legal opinion with the state’s and then move forward.
Dr. Michael Erwin (DeKalb Schools Board)
Where does this proposed policy discuss autonomy?
Laura Lashley
It doesn’t.
Dr. Michael Erwin
I pose that to Mr. Orson, that you brought up autonomy with this policy, but we’re not even discussing that.
Laura Lashley
We did not include autonomy, but we don’t have to copy and paste every regulation and provision in order to be bound by them.  We as a district have to follow the law.
Dr. Erwin
We could address the charter cluster vote later if we weren’t in alignment with the state?  And we are in alignment with the state?
Laura Lashley
Yes.  We are in alignment and legally compliant with state policy.
Vickie Turner
I call the question.
[Vote: 4:3 – the question fails]
Laura Lashley
We are bound by state rules and laws.  These policies were drafted to be neutral and getting us up to base level compliance.
Jim McMahan
This is what neutral looks like.  How do you decide what to review?
Laura Lashley
I worked closely with your charter staff.  We took out everything from the old policy that wasn’t legally compliant.  The policy tracks state law.
The regulation follows state board rules.  The rules are much more specific about how you do your business.
The idea was to look at best practices and I drafted charter policies for almost all the metro Atlanta school districts.
Marshall Orson
I appreciate the effort.  It remains problematic if there is a divergence with another compelling authority.  I appreciate the process with the mini sessions.  I was left with some uneasiness and lack of clarity based on subsequent information.
If there is conflicting information out there, we should receive it and digest it.  I would feel better informed and equipped to make that decision with all relevant information.  That’s why we need to wait.
Stan Jester
I sent an email a few weeks ago trying to start to the conversation, so if I could be given some leeway.  In an attempt to get to neutral, I have a couple of questions.  I would say what we have in our policy about the charter cluster votes is above and beyond what the school board rule requires.  If we left out, wouldn’t that be neutral?
Laura Lashley
Whenever you have an obligation with state law, that has to be reconciled with federal law.  Having only vote vote at one location that affects the entire cluster isn’t equal access.  We balanced the equity and access concern with the federal obligations to ensure equal protection.
When the state law conflicts with federal law, you go with the federal obligations.
Stan Jester
Back to 20-2-264, the state law and school board rule defines reasons for us to deny petitions.  None of them talk about innovation, so why do we make innovation a reason for denial if the state doesn’t?
Laura Lashley
The entire basis of the Georgia Charter Schools Act, 20-2-261, which is the legislative intent.  They don’t have to codify the legislative intent, but they did.  They said that local school districts are supposed to increase academic and organization innovations through charters.
Innovation is at the core of the Georgia Charter School statute.  Beyond that, one of the first questions in the Ga. state petition application, is to list out the education innovations that you’re going to do.  I think a charter school would have a hard time getting approved by the state if they came with a giant blank space on that question because they didn’t innovate.
It’s something the state insists.  If you look at the Ga DOE website, the requirement for innovation are all throughout their FAQs, petitioner materials.
When you look at a charter petition, whether or not it brings innovation is just one of the many questions the district looks at.  If it’s innovative for that area, that’s something you can take into consideration.  There’s nothing in IBB-R that says if you’re not innovative or you’re duplicating another thing that is an automatic denial.  It’s just one thing to look at.  You should know if it’s duplicative or innovative.
Stan Jester
Innovation is littered through the reasons for denial in our proposed policy and your saying the state would require innovation and would otherwise deny that.  I read this as charters spur on innovation, and not that innovation spurs on charters.  So, I do not think innovation is a requirement.
I want you to confirm that you believe the state requires innovation to approve the petition.
Laura Lashley
They certainly require evidence of innovation.  It’s within the petition itself.  You wouldn’t be able to apply for a charter if you didn’t have a list of innovations.
Stan Jester
I just don’t see it rising to a requirement and we are putting it in as a requirement of IBB-R and would like to respectfully agree to disagree with you on the purpose of innovation and us relying on that for petition denial or approval.
Dr. Melvin Johnson
[Charter Policy passes 4:3]