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In appeal of closure vote, Eastern charter school questions District’s oversight

Eastern's CEO defended the school's right to exist. Otherwise, he said, students would be forced to attend neighborhood schools that he called "cesspools."

This article was originally published in The Notebook. In August 2020, The Notebook became Chalkbeat Philadelphia.

Updated: this article has been updated to include further information about the school’s founding coalition from David Bromley, a member of that coalition and the executive director of Big Picture Philadelphia.

Eastern Academy Charter School is vociferously contesting the School Reform Commission’s decision to close it, pursuing a wide-ranging appeal that in some places questions the District’s right to regulate it.

The appeal could drag on for years. The state charter law allows a school to first appeal to the state Charter Appeals Board, and then all the way up to the state Supreme Court. The process has been criticized by State Auditor General Eugene DePasquale as a way to drag out inevitable charter closings at great cost to local districts.

In April, the SRC, which has since been replaced by the local Board of Education, voted against renewing the East Falls school’s charter after the District Charter Schools Office found the quality of academic programming in both the middle school and high school to be unacceptable. The office also said that some of the school’s operational practices violated the state’s charter school law.

For instance, they said, Eastern didn’t properly advertise its board meetings, devised education plans for some students with disabilities without parents’ knowledge, and failed to provide evidence that a sufficient number of its teachers were certified.

Eastern is appealing on several grounds. For one thing, it contends that the Charter Schools Office unfairly assessed its academic record by including two special admission schools in one comparison group. For another, it says that two Charter Schools Office staffers who participated in the review were inexperienced.

Susan DeJarnatt, a professor of legal research at Temple University and a critic of the charter school industry, said that Eastern’s arguments essentially object “to any kind of oversight.”

The heart of the argument seems to be an idea that many charter proponents have advanced recently — that no charter school should be closed so long as any District schools that underperform the charter school in any way are operating, regardless of the charter’s academic performance or compliance with the law.

This argument echoes those made by Khepera Charter School in its appeal and by the broader charter school community when lobbying against the District’s most recent policy that further regulates charter schools.

An open letter from Excellent Schools PA, the charter school super PAC that is suing the District over that policy, called Policy 406, reads: “If the School Reform Commission focused as much energy on improving the failing schools they manage rather than micromanaging the charter schools they authorize, students would be better off.”

The complaints of over-regulation extend to schools that have been offered new charters. More than a dozen have refused to sign them, alleging that the District is constantly “moving the goalposts” without clear expectations.

Looming large behind this approach is resistance to what they say is a double standard applied to charters compared to District schools.

In its appeal, Eastern included a speech by its CEO, Omar Barlow, in which he referred to neighborhood schools where many of his students might otherwise attend as “cesspools” to justify his own school remaining open. In the speech, he made no attempt to refute the charter office’s findings of poor academic performance and violations of state and federal laws.

DeJarnatt said Eastern’s strongest argument is the one that questions the decision of the charter office to include two special admission schools in a group to which Eastern was compared. But she said that the school presented no evidence of how it would have fared if those magnet schools were removed. Still, she doesn’t see that argument as likely to void the SRC’s decision.

The school was founded in 2009 with support from Eastern University using a grant from the Gates Foundation as part of the Gates Early College Initiative, though the Eastern University has not continued to support the school.

David Bromley, executive director of Big Picture Philadelphia, was a member of the founding coalition. Bromley said that coalition also included Woodrow Wilson Early Learning College and the Black Alliance for Educational Options. The Alliance gave the school a grant as part of its Small Schools Project.

Although Eastern’s website contends that it is a Big Picture School, the only Big Picture Schools in Pennsylvania are El Centro and Vaux. Bromley did advocate that the school adopt the Big Picture model, but he said he was never able to convince the CEO and the board to move forward. The model features small advisories, assignments driven by a student’s interests, outside mentors and interships.

“After one year, Big Picture pulled out because the CEO was not willing to implement the Big Picture model,” Bromley said. He pressed the board to reconsider, but they stood by the CEO’s decision.

Over the course of the school’s second year, Bromley said the other founding partners withdrew their support as well. He said the other partners expressed concern with the CEO’s decision, since they were also under the impression that the school would adopt the Big Picutre model.

According to the school’s website, its founding goal was to “increase the number of high school students performing at advanced levels.”

By any standard, the school’s academic performance has been low. On the latest round of PSSAs, 20 percent of students in the school’s middle grades scored proficient in English and 1 percent were deemed proficient in math. The high school had poor scores in math and science on the Keystone exams. The school serves 349 students in grades 7-12.

The School District is aware of the appeal, but chose not to comment further.

“The School District’s Charter Schools Office is aware of Eastern University Academy Charter School’s appeal of the School Reform Commission decision to nonrenew the school’s charter to the Charter Appeal Board,” said District spokesman Lee Whack.

Charter Schools Office dispute

To solidify its case, Eastern hired a former District staffer who was once in charge of evaluating charter schools and said he would have conducted the process differently. Harold Brady worked as director of program evaluation and intervention from 2008 through 2010, and then as deputy chief of instructional improvement until 2011, when he left to work for Universal Charter Schools as an assistant superintendent. He later left Universal to establish his own education consulting firm.

From 2008 to 2011, when Brady was in charge of evaluating charter schools, the District faced intense criticism for weak scrutiny and regulation of charters.

“The District was doing almost nothing to regulate charters,” DeJarnatt said, adding that it was a huge frustration of then-SRC Commissioner Joe Dworetsky, who pushed for a beefed-up charter office. “I’m not terribly impressed by someone whose job it was to review charter schools in 2010 when the charter office was admittedly doing a really bad job — and they would be the first to admit that they needed to improve.”

The District considerably beefed up and reorganized its charter office, but Brady now says this new office is not properly doing its job.

The thrust of his argument is that charter schools need to be more involved in their own regulation, which he called the “best practices” that were used when he worked in the office. Those practices included announcing all visits in advance, telling charters at every step exactly what they would be evaluated on, and conferring with a charter school’s staff about missing paperwork and violations of state and federal law.

Pa. auditor general’s findings

When Auditor General DePasquale conducted an audit in 2016, he concluded that Philadelphia was still not adequately overseeing and regulating its charter schools, even under the new charter office. And he contradicted Brady’s assertions of what constituted “best practices.”

“The District was unable to determine if all of [Philadelphia’s] charter schools were operating efficiently, effectively, and in accordance with their charter agreements,” DePasquale wrote in the audit. He called for regular oversight, not just a few visits every five years. “By not conducting and/or documenting routine oversight of its charter schools, the District is not following best practice standards of a quality authorizer.”

DePasquale wasn’t referring to best practices as he defined them, but as they are defined by the National Association of Charter School Authorizers. That organization ranked Pennsylvania as the seventh-worst state in the country in its efforts to oversee charters. DePasquale cited the type of lawsuit filed by Eastern as hindering the District’s ability to regulate charters.

“Constant litigation has impeded the District’s attempts to manage charter school growth, improve its financial position by controlling charter school tuition payments, and better its charter school oversight by implementing policies aimed at keeping the District more informed about its operating charters,” DePasquale concluded. “Continual appeals have extended cases for several years, with no final resolution in sight.”

Philadelphia has nearly half the charter school students in the state — 47 percent — despite having less than 12 percent of the state’s public school students, according to the most recent state data.

The appeal gets personal

The Eastern appeal also questions the legitimacy of staffers in the District’s Charter Schools Office. For example, the appeal says, the most junior staffer involved in reviewing Eastern “only worked as a full-time employee in any capacity for three-and-a-half years” since graduating college in 2013.

In other places, Eastern challenges the “validity” of that office’s reports due to other employees’ inexperience.

Ashley Sobrinski was responsible for compiling the report on the school’s special education practices, which found that they did not meet state standards. She specifically studied the school’s Response to Intervention (RTI) program, which is used to identify and support students with learning disabilities and behavioral problems.

Sobrinski found that there was no common assessment or set of data used to identify students. The school did not have a comprehensive list of interventions being used or documentation of how interventions were implemented.

Eastern’s appeal alleges that even though Sobrinski said she did not find “documentary evidence” of a functioning RTI program, she could not prove that one didn’t exist.

After that objection, the appeal then goes on to dismiss Sobrinski’s entire report on the grounds that she was only employed by the charter office for four months before evaluating Eastern.

DeJarnatt said she’s never seen anything like this strategy in an appeal before. She pointed to the irony behind it.

“I’m amused at someone from the charter sector complaining about a regulator with only a few years of experience when the Philly charter school industry has CEOs of entire charter schools with similar amounts of experience,” DeJarnatt said. “Experience is not something that most charter schools emphasize in hiring teachers, so I find it ironic for them to argue their evaluators have to be super-experienced in order to be credible.”

In 2017, the average time that teachers spent teaching in the Philadelphia School District was over 12 years. The average time Philadelphia charter school teachers spent in their jobs was less than four years. At Eastern, the average was 2.4 years.

Special education violations

Another point raised in Sobrinski’s report was that the Individual Education Programs (IEPs) required under federal law for special education students often did not have parent signatures, a violation of the law.

At the hearings held after the closure recommendation, an Eastern staffer testified that this was because many parents or guardians could not be reached by phone because they had changed their phone numbers and called it “just one of those bypasses of living in an urban city.”

She always made three attempts to reach them by phone and “generally” recorded those attempts. But the federal law requires that parents be informed in writing, regardless of whether they can be reached by phone.

The District auditor who examined the school’s special education files found more violations. The auditor reviewed the files of 40 students that Eastern said qualified for special education, a designation that enabled the school to collect a much larger per-pupil payment for those students. But the auditor found that 18 of them (45 percent) did not have IEPs and that the school had issued no written notice to parents that their child had been diagnosed.

Maura McInerney, legal director of the Education Law Center, which represents families of special education students, said that leaving parents out of IEP decision-making “is a significant violation of federal disability law that really indicates the need for strong charter oversight.”

The Education Law Center has dealt with the issue at other charter schools, but not Eastern specifically.

“We have frequently heard reports of parents who have no idea that an IEP had been created without them,” McInerney said in a statement. “When a parent is left out of the IEP process and unilateral decisions are made by schools, the child suffers and is denied the right to a free, appropriate, public education.”

Board governance

In the area of board governance, the school failed to identify when and where it held meetings. All but two board members did not file required annual statements of financial interest, and the board never voted to elect officers. Eastern staffers said they tried to obtain these without success.

To dispute this, the appeal cites a portion of the renewal hearing where an employee of Eastern affirms that they did “everything that you could do to obtain financial interest forms” by email and at board meetings — echoing the other staffer’s contentions about IEPs. But under the state’s Sunshine Act, the burden of producing those forms is on the organization, not the individual board members.

“You don’t get to say: We asked them for it,” DeJarnatt said of the financial interest forms. “A board member has to provide that, and the school has to make sure they provide it.”

The review conducted by the Charter Schools Office found that personnel files on multiple teachers did not contain documentation of state certification. Eastern seeks to dismiss this because the charter office did not speak with those employees directly. But the burden of proof for certification is on the school, not the employee, under Pennsylvania’s Charter School Law and Public School Code.

‘Cesspools’ comment by CEO

Eastern’s appeal also mentions a conference call between DawnLynne Kacer, the head of the charter office at the time, and Eastern’s CEO and board members. The call took place the day the charter office released its report recommending that Eastern’s charter not be renewed. Omar Barlow, the school’s CEO, asked Kacer whether the recommendation was final or the school could still make changes that would reverse it. Kacer said the recommendation was final.

The appeal contains a long speech from the school’s CEO that was allegedly made to Kacer during the conference call.

Barlow says the charter office didn’t take into consideration that the students at Eastern would otherwise attend neighborhood schools that include Strawberry Mansion, Martin Luther King, Overbrook and Frankford High Schools, “and my God, if it had still been open, they would have been at Germantown.”

He described these neighborhood schools as “cesspools” and said the charter office has “no cultural competence.”

Barlow did not respond to a request for comment.

“Calling those schools cesspools reminds me of [President] Trump and his comment about certain countries,” DeJarnatt said. “I think that’s a pretty horrific way to describe another school community, even one that’s struggling. It also doesn’t take into consideration where else these kids might go – other charters and citywide admission public schools.

“I think it’s hypocritical of him to claim the charter office has no cultural competence when he’s willing to condemn neighborhood schools in these kinds of words.”

DeJarnatt saw the attacks against individuals in the charter office as related to the broader Philadelphia charter community’s lobbying effort over Policy 406, which further regulated what charter schools could change mid-term through the amendment process. The policy was based on recommendations from the Pennsylvania School Board Association.

The District has been sued over the policy by Excellent Schools PA, a super PAC run by the local Philadelphia School Partnership’s lobbying arm — Philadelphia School Advocacy Partners.

A PSP spokesperson directed a request for comment to Excellent Schools PA. The PAC had not responded to the request at the time of publication.

“When does it stop?” Dejarnatt asked. “I feel like the more careful the charter school office is, the more charters complain about them. I’d like to know what the charter community believes acceptable oversight really means. Anything?”

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