ORDERS:
ORDER
STATEMENT OF THE CASE
This matter is before
the Administrative Law Court (“ALC” or “Court”) pursuant to S. C. Code Ann. §§
59-40-10 et seq., the South Carolina Charter Schools Act of 1996
(“Act”). The Lee County School Board of Trustees (“School Board”) filed an
appeal with the ALC on November 29, 2007, seeking review of the State Board of
Education’s (“State Board”) decision dated October 30, 2007. In its decision,
the State Board reversed the decision of the School Board to revoke the charter
of Mary L. Dinkins Higher Learning Academy (“MLD Academy”). After timely notice
to the parties, a hearing was held at the ALC in Columbia, South Carolina on
May 20, 2008, at which time the parties presented arguments on their respective
positions. After a review of the Record on Appeal and careful consideration of
the parties’ arguments, the Court affirms the State Board’s decision.
FACTUAL
AND PROCEDURAL BACKGROUND
MLD Academy filed a charter school application (“Application”) on June 1, 2004. It was denied by
the School Board on July 20, 2004. MLD Academy appealed the denial to the
State Board which reversed the School Board’s decision. The State Board’s decision
effectively granted the charter to MLD Academy and required the School Board to
serve as MLD Academy’s sponsor. Thereafter, the School Board appealed the
State Board’s decision to circuit court, which affirmed the State Board’s
decision.
Subsequently, the School Board appealed to the South Carolina Court of Appeals
and filed a Petition for Supersedeas with the South Carolina Supreme Court. On
July 6, 2005, the Supreme Court granted certiorari.
During the
pendency of the initial appeal, MLD Academy became operational and opened on
September 1, 2005. Beginning September 1, 2005, the School Board began making
monthly payments to MLD Academy based upon its requests. On February 1, 2006, Dr.
Lloyd Hunter, Superintendent for the Lee County School District (“School District”),
notified MLD Academy that the School District would evaluate its performance
for the 2005-2006 school year. The School District’s evaluation team conducted
an evaluation on April 27, 2006; however, MLD Academy did not permit the
evaluation team to observe instruction, interview core area teachers, or
examine school records. Additionally, on July 27, 2006, the landlord terminated
the lease on MLD Academy’s facility.
On August 1, 2006,
the School Board adopted a motion to initiate revocation proceedings against MLD Academy’s charter because of MLD Academy’s failure to employ a certified administrator with
experience in school administration as required by the Application, the School
District’s inability to fully evaluate MLD Academy in April 2006, and the
proposed lease termination. However, the School Board held the revocation in abeyance pending a ruling on
its appeal to the South Carolina Supreme Court regarding the Application, improvement
of the conditions on which its revocation determination was based, or further
action by the School Board, whichever occurred earliest. On January 29, 2007,
the Supreme Court affirmed the State Board’s decision which granted the charter
to MLD Academy.
On February 20,
2007, less than one month after the Supreme Court’s decision, Dr. Hunter wrote MLD Academy, offering it the opportunity to demonstrate that the issues cited in its 2006 revocation
determination had been remedied. Further, the School District notified MLD Academy that it wished to complete its evaluation. On March 20, 2007, Dr. Hunter notified
MLD Academy that the School District would appoint an evaluation team (“team”)
to evaluate MLD Academy’s performance for the 2006-2007 school year and MLD Academy was given the opportunity to make recommendations for members of the team. In
response, MLD Academy questioned the School District’s authority to conduct an
evaluation and did not recommend any members for the team. Thereafter, the
School District appointed Dr. Yvonne Barnes and Titus Duren to serve as the
evaluation team; neither were employees of the School District.
Prior to the
on-site evaluation, Dr. Barnes met with Bonita Dinkins-Robinson, the director
of MLD Academy, to discuss the evaluation tool the team would utilize. Subsequently,
the team conducted an evaluation on May 16, 2007 and May 21, 2007. During the evaluation, MLD Academy refused permission for the team to observe
instructional delivery and methodology, interview core area teachers, and examine
individual student records.
The team submitted
its formal report detailing its findings to the School District on May 24,
2007. It was accepted by the School Board at a meeting on June 14, 2007. The
findings noted that MLD Academy “met” 29 of the 32 areas observed, but only “partially
met” the other three. After considering the report, the School Board voted on
June 27, 2007 to notify MLD Academy of its intent to revoke its charter. It
stated that the revocation was due to MLD Academy’s failure to fully cooperate
with the evaluation team and because of its poor grades on its 2006 Annual School
Report Card.
After it had been
notified of the School Board’s revocation determination, MLD Academy requested a hearing. The School Board held a hearing on July 20, 2007, and on August
6, 2007, it revoked the charter. In its written Order (“School Board Order”) dated
August 7, 2007, the School Board made the revocation effective on September 1,
2007 and concluded that:
(1) the Supreme
Court’s decision dated January 29, 2007 effectively made it the sponsor of
MLD Academy;
(2) Section
59-40-110(A) provided that the School District, as sponsor of MLD Academy,
must annually evaluate the conditions outlined in subsection (C) thereof in making
a determination for the nonrenewal or revocation of its charter;
(3) Section
59-40-110 (C) requires that a school district revoke a charter if it determines
that the school committed a material violation of the conditions, standards,
or procedures provided for in its charter application or failed to meet or
make reasonable progress, as defined in its application, toward pupil
achievement standards identified therein;
(4) MLD Academy
failed to cure several material violations remaining from the 2006 evaluation,
i.e. not offering evidence of its implementation strategies, methodologies, techniques,
and practices with respect to curriculum and instruction as required by its Application,
which constituted a material violation of its Application;
(5) MLD Academy
materially violated its Application by failing to fully cooperate with the
2007 evaluation team during its evaluation by: (a) prohibiting it from
reviewing its practices and techniques with respect to its curriculum
and instruction; (b) not providing it with any evidence of its
implementation strategies, methodologies, techniques and practices with
respect to its curriculum and instruction; and (c) refusing to allow the team
to observe instruction being delivered by its teachers or to speak with its
teachers in core instructional areas;
(6) MLD Academy’s
instruction and curriculum implementation failed to meet pupil achievement
standards specified in its Application as measured by its 2006 Annual School
Report Card and constituted a material violation of Section 59-40-110(C)(2);
(7) MLD Academy did not meet the adequate yearly progress established in the No Child Left
Behind Act;
(8) MLD Academy,
by failing to provide evidence of proper documentation of student records,
or by refusing to allow the evaluation team to review the records, committed a material
violation of its Application and of Section 59-40-110(C)(1); and
(9) MLD Academy’s
failure to demonstrate community involvement in the governance and
operation of the school, or by refusing the evaluation team the opportunity
to speak with parents or teachers who could verify community involvement with
school activities, constituted a material violation of Section 59-40-110(C)(1).
MLD Academy appealed the School Board’s Order to the State Board which held a hearing on
October 10, 2007. On October 30, 2007, the State Board issued its Order
(“State Board Order”), reversing the School Board’s decision. On November 29,
2007, the School Board filed an appeal with the ALC.
On December 10,
2007, MLD Academy filed a Petition for Writ of Mandamus with the South Carolina
Supreme Court, requesting it to exercise its original jurisdiction and order the
School Board to continue providing funding to MLD Academy during the pendency
of the appeal to the ALC. On December 14, 2007, the Supreme Court denied MLD Academy’s Petition for Writ of Mandamus. On December 19, 2007, MLD Academy filed a Petition for Writ of Mandamus, or in the alternative, a motion for a Lift of
Stay with the ALC. After conducting a telephonic hearing, this Court issued
an order on December 28, 2007, which lifted the stay and ordered the School
Board to continue funding MLD Academy during the pendency of this appeal.
JURISDICTION
AND STANDARD OF REVIEW
S.C. Code Ann. §
59-40-110(C) provides that a sponsor must revoke a school’s charter if it
determines that the charter school:
(1)
committed a material violation of the conditions, standards, or procedure
provided for in the charter application;
(2)
failed to meet or make reasonable progress, as defined in the charter
application, toward pupil achievement standards identified in the charter
application;
(3) failed to
meet generally accepted standards of fiscal management; or
(4)
violated any provision of law from which the charter school was specifically
exempted.
Section
59-40-110(A) requires the sponsor to annually evaluate the conditions outlined
in § 59-40-110(C) and to use those evaluation results in making a determination
for nonrenewal or revocation of the charter. If a sponsor decides to revoke a
charter, it must notify the charter school’s governing body in writing and in
reasonable detail of the grounds for the proposed termination at least sixty
days prior to termination of the charter. § 59-40-110(D). A charter school’s
governing body may then request, in writing, a hearing before the sponsor
within fourteen days of receipt of the notice of termination of the charter. § 59-40-110(F).
After receipt of a timely request for a hearing by a charter school governing
body, the sponsor shall conduct a hearing prior to taking final action. § 59-40-110(F).
A final decision of the sponsor to revoke a charter may then be appealed to the
State Board pursuant to the provisions of §§ 59-40-90 and 59-40-110(H).
Appeals from a
decision by a local school board must be filed with the State Board within 10
days of the school board’s decision. § 59-40-90 (B); see also Reg. 43-600. Pursuant to § 59-40-90(C) and 24 S.C. Code Ann. Reg. 43-600(I)(G),
the State Board must, within 45 days after receipt of the Notice of Appeal and,
after reasonable public notice, conduct a public hearing to consider the
appeal. Each party to the appeal is authorized to make an oral argument at the
hearing addressing the issues on appeal, and the State Board may, at its
discretion, allow public comments addressing the issues on appeal. Within 20
days of the public hearing, the State Board must issue a final written order. Reg.
43-600(I)(D) provides that the State Board’s review will be limited to the
record on appeal and that it will not consider any fact that does not appear in
the record on appeal. Further, Reg. 43-600(I)(E) provides that the standard of
review to be applied by the State Board in its appellate review mirrors the limited
standard of review contained in the South Carolina Administrative Procedures
Act (“APA”); Beaufort County Bd. of Educ. v. Lighthouse Charter School Comm.,
et al, 335 S.C. 230, 234, 516 S.E. 2d 655, 657 (1999); S.C. Code Ann. § 1-23-380(5)
(as amended 2008).
A final
order by the State Board may be appealed to the ALC as provided in §
1-23-600(D) and (E) (as amended 2008). See § 59-40-90(D). The ALC has
authority to review the final order of the State Board as an appeal under §
1-23-380(5), which provides for reversal only if its findings are:
(a)
in violation of constitutional or statutory provisions;
(b) in
excess of the statutory authority of the agency;
(c)
made upon unlawful procedure;
(d)
clearly erroneous in view of the reliable, probative and substantial evidence
on the
whole
record; or
(e)
arbitrary or capricious or characterized by abuse of discretion or clearly
unwarranted
exercise
or discretion.
In
applying this scope of review, the reviewing court may not substitute its
judgment for that of the agency as to the weight of the evidence on questions
of fact, but may reverse where the decision is affected by an error of law. Liberty
Mutual Ins. Co. v. S.C. Second Injury Fund, 363 S.C. 612, 611 S.E.2d 297
(Ct. App. 2005). This Court reviews the findings of the School Board to
determine if its findings of fact or conclusions of law are based on
substantial evidence contained in the whole record. The South Carolina Supreme
Court in Porter v. South Carolina Public Service Commission, 333 S.C.
12, 20-21, 507 S.E.2d 328, 332 (1998) defined the substantial evidence standard
of review:
Substantial
evidence is relevant evidence that, considering the record as a whole, a reasonable
mind would accept to support an administrative agency’s action. Substantial evidence
exists when, if the case were presented to a jury, the court would refuse to
direct a verdict because the evidence raises questions of fact for
the jury. It is more than a mere scintilla of evidence, but is something less
than the weight of the evidence. Furthermore, the possibility of drawing two
inconsistent conclusions from the evidence does not prevent a court from
concluding that substantial evidence supports an administrative agency’s
finding.
The Supreme
Court found “[t]his deferential standard of review does not mean, however, the
Court will accept an administrative agency’s decision at face value without
requiring the agency to explain its reasoning.” Id. at 21, 507 S.E.2d
at 332. Further, the agency “must fully document its findings of fact and base
its decision on reliable, probative, and substantial evidence on the whole
record.” Id. “An administrative body must make findings, which are
sufficiently detailed to enable this Court to determine whether the findings
are supported by the evidence and whether the law has been applied properly to
those findings.” Id. And if “material facts are in dispute, the
administrative body must make specific, express findings of fact.” Id.
DISCUSSION
Appellant raises the
following issues on appeal:
1. Whether
the State Board erred in finding that the School Board’s decision was not
supported by substantial evidence when the record included admissions that MLD Academy failed to meet its specified academic performance standards and failed to
cooperate fully with the statutory annual evaluation?
2. Whether
the State Board erred by substituting its judgment for that of the School Board
in ignoring the School Board’s reliance on specific findings from the evaluation
team?
3. Whether
the State Board erred in substituting its judgment for that of the School Board
by concluding that MLD Academy’s failure to cooperate with the evaluation of its
instructional delivery was not a material breach of the terms of the school’s
charter application?
4. Whether
the State Board erred in reversing the School Board’s decision by concluding
that MLD Academy’s failure to provide student records was not a material breach
of the terms of the school’s charter application?
5. Whether
the State Board erred in reversing the School Board’s decision by concluding
that MLD Academy’s refusal to provide access to student records was immaterial
because most of the information listed under VI(A) of the School Board’s
Monitoring Tool is information that is uploaded in SASI and maintained on the School District level?
6. Whether
the State Board erred in reversing the decision of the School Board in finding
that there was adequate support from parents in the community, when no surveys
were returned by any parents to the State Board?
7. Whether
the State Board erred in reversing the School Board’s decision after MLD Academy failed to meet the instructional standard specified in its application for a
charter school?
Instructional Delivery
In its Order, the
School Board found that MLD Academy materially violated the Application because
it did not fully cooperate with the School Board’s 2007 annual evaluation of
instructional delivery and offered no evidence of its “implementation
strategies, methodologies, techniques and practices with respect to curriculum
and instruction as required by the charter school application.” (R. at 192). In
addition, it found that MLD Academy failed to fully cooperate with the 2006
annual evaluation of instructional delivery. The State Board reversed this finding, concluding that MLD Academy’s failure to fully cooperate with an annual evaluation by itself is not among the
specifically enumerated statutory reasons to justify revocation of a school’s
charter. In addition, the State Board found there was not substantial evidence
in the record to support the conclusion reached by the School Board that MLD Academy materially violated its application.
There were lengthy
communications between the parties concerning the 2007 revocation. In addition, MLD Academy responded to each concern about the 2006 revocation and invited Dr. Hunter to visit with its Board of Trustees and attend a parent
meeting, which he subsequently refused to attend. Notwithstanding all the
communications in both 2006 and 2007, the School District selected a team to
conduct an on-site evaluation of MLD Academy in 2007, and although MLD Academy had concerns about the legality of the on-site visit, it cooperated with the
team and made available for its review many of its records.
On appeal to this Court,
the School Board asserts there is substantial evidence in the record to support
its finding that MLD Academy’s failure to fully cooperate with the team’s annual
evaluation of instructional delivery constituted a material violation of the Application.
It asserts that the State Board erred in reversing that finding and that the State
Board substituted its judgment for the School Board in determining that MLD
Academy’s failure to cooperate with the evaluation, by itself, was not a sufficient
ground of revocation pursuant to § 59-40-110(C).
Section
59-40-110(A) provides that “[t]he sponsor annually shall evaluate the
conditions outlined in subsection (C). The annual evaluation results must be
used in making a determination for nonrenewal or revocation.” Further, Section 59-40-110(C)(1) provides that a charter must be revoked
or not renewed by the sponsor if the sponsor determines that the charter school
“committed a material violation of the conditions, standards, or procedures
provided for in the charter application.”
Section
59-40-110(C) specifically defines the grounds for which a charter can be
revoked. The failure to cooperate with an evaluation is not listed as a specific
ground in subsection (C) and a School Board cannot revoke a charter based
solely upon a lack of cooperation by the charter school. However, the School Board asserts that it did not rely solely
on MLD Academy’s failure to cooperate as the reason for revoking the charter. Rather,
it argues that because the Act permitted evaluations and MLD Academy contracted
to “report at least annually to its sponsor…all information required by the
sponsor,” MLD Academy’s failure to cooperate fully in the annual evaluation of
instructional delivery and
its failure to provide all requested information together constituted a material violation of the conditions,
standards or procedures provided for in the Application. (R. at 655); see § 59-40-140(H). Also, the School Board determined that MLD Academy’s actions or inactions constituted a material violation of the Application because it failed
to fully cooperate with evaluations of its instructional delivery for two
consecutive years (evaluations during the 2005-2006 and the 2006-2007 school
years).
Since the Application constitutes a contract between MLD Academy and the School District, it must be read in conjunction with Sections 59-40-110 and
59-40-140 (H). Item N of the Statement of Assurances in the Application
provides that MLD Academy will report at least annually to its sponsor, i.e.
the School Board, and to the Department of Education “all information required
by the sponsor and by the Department, including, at a minimum, the number
of students enrolled in the charter school, the success of students in
achieving the specific educational goals for which the charter school was
established, and the identity and certification status of the teaching staff.” (R. at 655) (emphasis added). Therefore, to be in
compliance with § 59-40-140(H) and Item N, the school only need report these
three pieces of information. Notwithstanding, as stated by the State Board in
its order, the failure to cooperate with an evaluation team and process can
certainly have a negative impact on the evaluation results. Further, a
failure to provide the team with on-site access to requested information can result
in the evaluation team determining that the school did not meet the requirements
of its contract.
The School Board
conducted an evaluation of MLD Academy in 2007. Prior to conducting the
evaluation in 2007, the evaluation team informed MLD Academy of the thirty-two
(32) criteria/standards it would be evaluating. For each criterion identified,
the team determined whether there was evidence that MLD “met” or “partially
met” the criterion or whether evidence of that criterion was “absent” in their
review. The team addressed each criterion separately in its evaluation report
and found that MLD Academy “met” twenty-nine (29) of the criteria and “partially
met” three (3) others; however, the team did not conclude that there was an
absolute absence of any of the criteria. Notwithstanding, in its order the School Board found that the three (3) criteria
MLD Academy “partially met” constituted sufficient grounds for revocation of
the charter.
One of the criteria the
team found that MLD Academy “partially met” was Standard II(A). For this
criterion, the team evaluated whether MLD Academy’s “educational program and
instructional methodology are consistent with the approved charter application.”
In its report, the team commented as follows:
Resources and excellent
instructional materials were available for review; however, the team was unable
to observe instruction being delivered, or have an opportunity to speak with
teachers of core instructional areas. Instructional methodology was not
observable. The team could not therefore substantiate the following charter
school program reference: “The program offered school-wide, progressive,
holistic education, child-centered, small class size, and small school size.”
Based on enrollment numbers the teams surmised that the small school and class
size components were feasible. (Methodology could not be reviewed.)
(R. at 209).
The School Board asserts
that because MLD Academy refused to allow observation of instructional
delivery, the team was unable to determine whether the students at MLD Academy
were receiving a quality education, were achieving the specific educational
goals for which the school was established, and whether the teachers were
providing instruction to students based on the South Carolina Academic
Standards for all subjects. However, the team was provided access to MLD Academy’s curriculum materials and found them to be excellent. Further, the team did
not find an absolute absence of evidence for Standard II.A. in their review.
Therefore, a review of the record does not support the School Board’s
determination that MLD Academy failed to provide evidence of its
“implementation strategies, methodologies, techniques and practices with
respect to curriculum and instruction as required by the charter school application.”
(R. at 192).
Accordingly, I
find that there is not substantial evidence in the record to support the School
Board’s determination that MLD materially violated its charter school
application by failing to allow observation of instructional delivery. MLD Academy attempted to comply with all requests for information made by the School Board and
permitted on-site evaluations in both 2006 and 2007. Furthermore, MLD Academy provided the team with the success of its students in achieving the specific
educational goals for which the school was established, thereby meeting the
requirements of Item N of the Statement of Assurances and Section 59-40-140(H).
Moreover, the refusal by MLD Academy to allow the evaluation team to sit in its
classrooms and observe instruction, which is not required by any of the
applicable statutes, regulations or the Application, does not amount to a
material violation of the Application. Therefore, the State Board’s
determination on this issue is affirmed. Pupil Achievement Standards and
the Annual Report Card
The School Board
asserts that there is substantial evidence in the record to support its
determination that MLD Academy materially violated the Application in that its
instruction and curriculum implementation failed to meet pupil achievement
standards specified in the Application as measured by its 2006 Annual School
Report Card and it did not meet the adequate yearly progress (“AYP”) established in the No
Child Left Behind Act of 2001 (“NCLB”), 20
U.S.C.A. § 6301, et seq. Further, it asserts that the
State Board, in reversing this finding, erred in substituting its judgment for
that of the School Board because it ignored the School Board’s reliance on
specific findings from the 2006 Annual Report Card.
Section
59-40-110(C)(2) provides that a charter must be revoked or not renewed by the
sponsor if the sponsor determines that the charter school “failed to meet or
make reasonable progress, as defined in the charter application, toward pupil
achievement standards identified in the charter application.” In the
Application, MLD Academy stated that it expected its students’ yearly progress
would meet the AYP established in NCLB and agreed to use as an indicator of student achievement those testing models
utilized by the District, which were primarily PACT. However, MLD Academy qualified that assertion by stating that it would “adhere to all federal guidelines
with regard to the amount of time that schools have in order for students to be
performing at the required grade level.” (R. at 637). In fact, NCLB does not
require that all students reach proficiency until 2013-2014. 20 U.S.C.A. § 6311(b)(2)(F).
In its Order, the
State Board noted that although MLD Academy did not meet AYP, as evidenced by
its 2006 Report card, it did meet seven of the thirteen objectives that applied
to it. Further, it commented that it is unreasonable to expect every school to
reach AYP in its first year because it takes time for students to reach the
goals of NCLB. Additionally, it noted that under the federal guidelines
regarding Title I schools and AYP, there is no legal implication for those schools
not meeting AYP for one year because a school must fail to make AYP for two
consecutive years before becoming “newly identified.” (R. at 16). Therefore, in its order the State Board found it unreasonable to
use the first year’s report card rating as a trigger for revocation. It
remarked that such rating should be used as the “base” from which improvement
and failure can be determined and that an “[a]nalysis of subsequent year’s
report cards will allow a clearer view of how that school is performing.” (R.
at 16).
Additionally, the
State Board noted that a charter school’s application contains timelines for
meeting long-term performance goals and the requirements of NCLB. Furthermore,
at the time of the Application, MLD Academy anticipated that there would be
children in need of assistance and that it would take time for the students to
be assisted sufficiently to reach a point of proficiency, or the federal
standard. In fact, in its Application MLD Academy stated that it “aim[ed] to
provide a net for those students who have previously or are in danger of
falling behind,” and that it would provide tutoring during lunch and after
school, extra assignments, and computer-based instruction to assist students
who performed below acceptable levels of proficiency on PACT. (R. at 637).
It is apparent to
this Court that the State Board read the record carefully and noted the many difficulties,
struggles and problems the parties had working with each other. The creation
of the charter school would take funds away from School District which it could
use in its public schools, and there is a history of litigation involving the
parties, including the issue of the grant of the original charter which was
ultimately decided by the South Carolina Supreme Court. This court has
reviewed the record carefully and also is aware of the funding issues MLD Academy had to overcome. Therefore, the Court finds that the State Board correctly
addressed this issue and adopts its analysis. The School Board misapplied §
59-40-110(C) which amounted to an error of law, as Section 59-40-110(C)(2) does
not require a charter school to meet its stated pupil achievement standards,
only that “reasonable progress” be made. Accordingly, the decision of the State
Board with regard to this issue is affirmed.
Access to
Student Records
With regard to
access to student records, the School Board argues that there is substantial
evidence in the record to support its determination that the refusal by MLD Academy to provide access to student records during the 2006 and 2007 annual
evaluations constituted a material violation of the Application, and that the
State Board erred in reversing that finding. Further, the School Board argues
that the State Board erred in concluding that MLD Academy’s refusal to provide
access to student records was immaterial because most of the information listed
under VI(A) of the School Board’s Monitoring Tool is information that is
uploaded in SASI and maintained on the District level. Expressly, in its order,
the School Board found that because MLD Academy did not allow the evaluation
team access to student records in 2006 or 2007, it failed to provide evidence
that its student records contained appropriate documentation and that this
amounted to a material breach of its Application.
As stated earlier herein, the failure to cooperate with the
evaluation team and process can certainly have a negative impact on the
evaluation results. Likewise, the failure to provide the team with access to
information can result in the team determining that the school does not meet
the requirements of its contract. However, the failure to cooperate with the
evaluation team, by itself, is not specific grounds for revocation.
As previously noted, Item N of the Statement of Assurances
in the Application states that MLD Academy will report at least annually to its
sponsor, “all information required by the sponsor… including at a minimum…the
success of students in achieving the specific educational goals for which the
charter school was established.” (R. at 655). Prior to conducting its
evaluation in 2006 and 2007, the School Board notified MLD Academy that it would be reviewing student records to ensure that they contained certain
required documentation. Specifically, the team evaluated whether “[e]ach
permanent record contains appropriate documentation of the following: academic
placement, grades, and credits; standardized test scores; attendance; required
immunizations; and emergency contact information.” (R. at 214). In its 2007
report, the team found that MLD Academy “partially met” this criterion and
included the following narrative:
Based on a review of the
information provided, the program appears to be implementing the required
guidelines and keeping appropriate records. The team could not, however,
indicate that each permanent record contained the appropriate documentation
because it did not have access to the records (even to select randomly) for
review. A folder was pulled for the team to review. That folder did contain the
required information. The team felt that under “[Family Educational Rights and
Privacy Act]” in its position as Officials for audit or evaluation purposes it
should have had access to the records. (Cumulative Folders).
(R. at 214).
The team was allowed to review one
folder and found that it contained all necessary documentation. However, it was
not allowed to review any other student folders, even at random, to determine
that the majority of MLD Academy’s student records contained the appropriate
documentation. MLD Academy asserted that it was prohibited from allowing the
team to review student records without parental permission pursuant to the
Family Educational Rights and Privacy Act (“FERPA”).
FERPA provides, in
pertinent part:
No funds shall be made available
under any applicable program to any educational agency or institution which has
a policy or practice of permitting the release of education records…of students
without the written consent of their parents to any individual, agency, or
organization, other than the following – (A) other school officials…who
have been determined by such agency or institution to have legitimate
educational interests, including the educational interests of the child for
whom consent would otherwise be required.
20 U.S.C.A. § 1232g(b)(1)(A). MLD Academy asserts that because the members of the team were not employees of the Lee County School District, but those of other school districts, they were not “other
school officials” within the meaning of FERPA. Further, MLD Academy asserted that it did not receive any notice of an advance determination from the School
Board that the team had legitimate educational interests in MLD Academy’s student records. The State Board declined to rule on the interpretation of FERPA,
and the Court finds it unnecessary to address this issue. As the State Board
correctly found in its order, the issue is whether the failure to provide
access to those records and the resultant finding by the team that the standard
was “partially met,” is ground for revocation of the charter. (R. at 12). The
team was given access to one student record and found that it contained all
necessary documentation. In addition, folders containing Individualized
Education Plans were made available and the team found that MLD Academy “met” Standard VI(B), with regard to student records containing Individualized
Education Plans and/or 504 Plans. (R. at 214). Furthermore, the majority of
the student information the team sought to review under Standard VI(A) is
maintained in SASI so it can be uploaded and maintained at the District level.
Accordingly, the Court
finds that there is not substantial evidence in the record to support the
School Board’s determination with regard to student records. Furthermore, a
failure by MLD Academy to provide student records to the team to evaluate when
they were available to the School District at its office is not a material
violation of the Application and MLD Academy’s contract with the School District. Therefore, the ruling by the State Board on this issue is affirmed.
Parental and Community
Involvement
The School Board
argues that there is substantial evidence in the record to support its
determination that MLD Academy materially breached the terms of the Application
by failing to demonstrate community involvement in the governance and operation
of the school, and that the State Board erred in reversing that finding. The School
Board based its decision in part upon the fact that the evaluation team was
unable to speak with parents or teachers who could verify community involvement
with school activities and the fact that none of the evaluation surveys
provided to students, teachers and parents as part of the Annual School Report
Card process were returned.
In its Application,
MLD Academy included a section on “family involvement” which states that it
“expect[s] parental involvement and will work with parents…. At a minimum, we
expect parents to be involved with their child’s daily and weekly homework
assignments” and to be “involved as volunteers at all levels: in the classroom,
on the Parent/Teacher/Student Council, on all-school committees, and on the
Board of Directors.” (R. at 641). Additionally, MLD Academy’s Application
provides that it “will expect parents and community members to be active[ly]
involved in all aspects of the school life.” (R. at 623). MLD Academy also had an “Open Door Policy” which invited parents to be active participants in the
school. (R. at 959).
In its Order, the
State Board concluded that “[t]he fact that the evaluation team did not speak
to parents and teachers, alone, is not under any reasonable reading of the
charter school law valid ground for revocation of a charter.” (R. at 12). I
agree. Although the team did not speak to parents and teachers, MLD Academy had invited school district officials and its superintendent to a parent
meeting on March 22, 2007. Additionally, the record shows that the team did evaluate
whether “[p]arental, professional educator, and community involvement in the
governance and operation of the school is consistent with the approved charter
application” and found that MLD Academy “partially met” this criteria. (R. at 217).
In its report, the team found that documentation was provided which showed that
the board’s make-up consisted of the categories identified. Further, other
information was included in the record which evidenced parental and community
involvement, including the agendas and attendance sheets of participation by
parents at parents meetings, parent surveys, community meetings, author’s teas,
Mornings with Moms announcements, and open houses.
Therefore, I find
that there is not substantial evidence in the record to support the School
Board’s conclusion that MLD materially violated its charter school application
by failing to demonstrate parental and community involvement in the operation
and governance of the school. Accordingly, the State Board’s determination on
this issue is affirmed.
ORDER
Based upon the foregoing,
it is hereby
ORDERED that the
State Board’s Order dated October 30, 2007 is affirmed.
AND IT IS SO
ORDERED.
______________________________
Marvin F. Kittrell
Chief Judge
August __, 2008
Columbia, South Carolina
On its Annual Report Card issued for the 2006 school
year, MLD Academy received “Unsatisfactory” scores in its “Absolute Rating” and
“Improvement Rating.” Further, the Report Card stated that they did not meet
adequate yearly progress. (R. at 327-333). Based upon this report card, the
School Board determined that MLD Academy materially violated its charter
because its “instruction and curriculum implementation failed to meet pupil
achievement standards specified in the charter school application.”
NCLB provides that each state plan shall demonstrate
what constitutes adequate yearly progress of the state and of all public
elementary schools toward enabling all public elementary and secondary school
students to meet the state’s student academic achievement standards. 20
U.S.C.A. § 6311(b)(2)(B). South Carolina determines adequate yearly progress
through established, annual measurable objectives. The annual measurable
objectives are evaluated each school year and each school receives a South
Carolina Annual School Report Card.
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