SC Administrative Law Court Decisions

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.[1] 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.[2] 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.[3] 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). [4]

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.[5]

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).[6]

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).[7]

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.[8] 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.[9] In addition, MLD Academy responded to each concern about the 2006 revocation[10] 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.”[11] 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).[12]

Since the Application constitutes a contract between MLD Academy and the School District,[13] 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.” [14] (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.[15] 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[16] 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[17] 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.”[18] (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