Education Funding Lawsuit Filed By Delaware ACLU, What Happened To That Other Complaint?

I heard about this one last week.  Tony Allen, the Chair of the Wilmington Education Committee, warned about this a year ago.  Now the Delaware American Civil Liberties Union, on behalf of the Delaware NAACP and Delawareans For Educational Opportunity, filed a lawsuit against the State of Delaware over education funding.  Unbeknownst to most Delawareans, however, another Delaware ACLU complaint disappeared.

According to The News Journal, the Delaware Dept. of Education released the following statement about the suit:

The Delaware Department of Education has not seen any complaint from these groups and will respond to any litigation against it in court. It is the goal of the Department to assist Delaware’s schools in preparing every student to succeed in college or career and life.

Yeah, pretty much the same thing the DOE said back in 2014 when a complaint against them and Red Clay was filed with the Office of Civil Rights over discrimination in Delaware charter schools.

Who is named in the lawsuit? Governor Carney, Secretary of Education Dr. Susan Bunting, State Treasurer Ken Simpler, and the heads of each county finance office.

To read the complaint, please see below with some exclusive news appearing shortly after.

Jessica Bies at the News Journal wrote in the above article:

According to the lawsuit, the state is failing students from low-income families, students with disabilities and students who are learning English. Test scores for these disadvantaged students are far below state standards set by the Delaware Department of Education in its new plan, the Every Student Succeeds Act, or ESSA.

What the lawsuit wants seems to contradict with what Delaware Governor John Carney wants:

But Gov. John Carney, listed as a defendant in the lawsuit, has said he is not in favor of needs-based funding, in part because it gives extra money to school districts serving at-risk kids without holding them accountable for how they use it. He has also said there is neither the financial nor political support for such a measure.

Yeah, okay Carney.  Whatever.  We both know how you exert pressure on the General Assembly to do YOUR bidding.

But whatever happened to that old complaint filed in December, 2014?  The one the Delaware ACLU filed with the Office of Civil Rights alleging discrimination in certain Delaware charter schools?  The Office of Civil Rights rejected that complaint.  This never made the press and the Delaware ACLU never released anything on it.  Nothing can be found on the Delaware ACLU or OCR websites.  But it happened.  I reached out to the Delaware ACLU early last week to get information on this.  They directed me to Richard Morse, who is now with Delaware Community Legal Aid.  Mr. Morse did not return my call.  I guess someone wanted that complaint to die a quick and painful death.

This lawsuit cannot be ignored though.  It was filed with the Delaware Chancery Court today.  This could be a game-changer folks!

On Facebook last week, I wrote about knowing some things coming up but I couldn’t write about them yet.  This was two of them.

 

Appo Update On Tax Warrant/Special Education/$5 Million Article

On Thursday, I published a very controversial article surrounding the Appoquinimink School District.  To say I got some heat for it would be putting it mildly.  After I wrote the article, I did reach out to the district for comment.  I emailed Superintendent Matt Burrows, CFO Dr. Charles Longfellow, and their public information officer, Lillian Miles.  The only response I received from the trio was an out-of-office reply from Burrows:

BurrowsReply

What I found ironic about this was the part which states “suspected spam”.  Many wondered why I didn’t contact the district first with my findings and ask them about it.  Last year, after the opt out bill (House Bill 50) first came out, I emailed all the superintendents and charter chiefs in the state.  I had valid concerns about schools refusing parent opt out requests or bullying parents about it.  Some parents received veiled threats concerning their child’s ability to attend school during testing, while others received letters from a school district stating they had to acknowledge they were violating the law, sign it, and send it back.  That came from Appoquinimink.  When the Delaware PTA revealed this at the first opt out town hall last year, I immediately jumped on it and contacted the district.  I spoke with Lillian Miles.  I advised her the letter was potentially illegal based on the law it cited which did not apply to parents in any way whatsoever.  She advised me she would look into it and I never received a response back from her.  A few Superintendents responded to my email about the opt out situation.  Matt Burrows was not one of them.

Flash forward a year to the 2016 Smarter Balanced Assessment season.  Many parents reported getting a very similar letter this year.  I once again contact Lillian Miles who informed me if any parent comes to me to direct them to speak to the school principal.  I advised her I would not do this and I was advocating for their rights.  She seemed to take offense to this and the matter didn’t come up again.

Towards the end of May, I received information concerning “data walls” at various Delaware schools where student test scores were displayed in classrooms or hallways, with the good students on top and the low-scoring students on the bottom.  I knew Appoquinimink, based on multiple (double digit) reports I received from sources was one of the biggest abusers of this practice.  Data Walls are a part of the “Leader In Me” program which Appo is a huge proponent of.  I know one very large district who had some minor issues with it directed all teachers to take down their walls as a result of my article.  I did advise, in an email to all the superintendents and charter chiefs, I would file FERPA complaints if I found out they didn’t take down their invasive data walls.  Unfortunately, that was by the end of the school year when teachers would be taking down anything on the walls in their classrooms anyways so I wasn’t able to move forward on my promise.  Once again, Burrows never responded.

I’m not sure why my email to him yesterday was “suspected spam” as I never received that reply from him in the past (or any reply for that matter).  I linked articles in emails to superintendents in the past, so that would not have triggered a potential spam.  Perhaps he marked the last email I sent him about the data walls as spam.  I have no way of verifying that unless he tells me.

In the meantime, several people informed me of things going on in the district.  Many teachers, within the district and around the state, advised me Appo is well-known for an almost “poaching” of the best teachers in the state.  The district only seems to want seasoned teachers and doesn’t hire too many novice teachers.  While this might be good for students, it is also a huge financial drain on the district.  With tenured teachers and those with years, sometimes decades, under their belt, this costs more money in salaries.  And with those high salaries, comes the very big costs of benefits and pensions.  In FY2016, Appoquinimink spent $37.38 million dollars on teacher salaries alone.  While I am not able to verify this because all it says are “salaries”, that number could go up to $39.23 million because under their related services buckets for “regular/basic”, “intensive”, and “complex”, there is an additional $17 million under “salaries”.  But this section of their expenditures could also cover occupational therapists, psychologists, speech and hearing, specialists & coordinators, physical therapy and speech therapists.  Only Appo and a couple of other districts do not code those correctly in the state accounting system.  But Appo also paid $750,000 in “other professional service”, so some of those could fall under that bucket.  We simply don’t know.

What I do know, and can now confirm, is where the alleged $5 million went to.  In their FY2016 Preliminary Budget, the district gave a presentation to their board which showcases exactly what the tuition funds go towards:

AppoFY2016PrelimBudgetTuitionCosts

AppoFY2016PrelimBudgetTuitionBalances

So I was able to solve that mystery with some help digging around for information.  And we also know how much they came into the year carrying over from the prior year.  But this the confusing part.  It shows a projected shortfall of $660,603.00 over the year.  Now what we do know,  based on Thursday’s article comparing the district’s tuition costs for in-state and out-of-state were over $2.9 million for FY2015 and a bit over $3 million for FY2016, with a difference of over $48,000.00.  So this $660,603 shortfall they were expecting was, most likely, not coming from their out-of-district costs.  Which leaves the section called “Needs-Based”.  This covers their district costs for special education over what the state pays them.  In Delaware, this is all based on the student enrollment as of September 30th.  I’m not going to sit here and say this is a fair system at all.  This is very early on in the school year, and even if a parent requests special education services through an IEP on the first day of school, chances are very good that child, if they qualify, won’t have a signed IEP by September 30th.  This means the district has to cover those costs.  For every special education student a school has, they earn extra teaching units for these students based on the severity of their disability.  These three sections are basic, intensive, and complex.  I wrote about this system two years ago:

Basic Special Education units are determined by eligibility of special education for students in grades 4-12 and they must not be considered intensive or complex. Students in this group receive one unit for every 8.4 students.

Intensive units are based on a need of a moderate level of instruction. This can be for any student with an IEP from Pre-Kindergarten to 12th grade. As well, there must be supports for health, behavior or personal issues. The student must have an adult facilitating these supports with a ratio of 1:3 to 1:8 for most of their education. The student must be in the mid-range for use of assistive technology and also need support in the areas of a school nurse, an interpreter, an occupational therapist, or other health services. These students would also qualify for extended year services (ESY), and may have to utilize services outside of the school such as homebound instruction or hospital services. On their IEP, these students may have accommodations outside the norm, which should include adaptations to curriculum to best support their needs. Students here get one unit for every 6 students.

Complex Special Education units are determined by severe situations that require a student to adult ratio of 1:1 or 1:2. Most autistic children should fall into this category. They must receive a high level of instructional, behavioral, personal and health supports. Assistive technology needs to be utilized at an increased level for these students. ESY is a must, as well as a high level of homebound instruction or hospital services, interpreters, occupational therapists, or services from the school nurse. Unit funding is provided as one unit for every 2.6 students.

If you notice, there are NO additional units for basic special education students in Kindergarten to 3rd grade.  This is something that would have changed had our General Assembly passed State Rep. Kim William’s House Bill 30 which she fought for during most of the 14

8th General Assembly.  So who covers those costs?  The district or charter school.  But since IEPs continue from year to year, any district or charter knows this and should budget for it.  One thing to keep in mind.  These special education units are not added on to existing units.  They are separate from regular education students.  What this does not mean though is that every special education student receives a special education teacher in every class in a full inclusion environment.  Some schools do this differently and there is little to no consistency with this.

Where this gets interesting is the article I put up about Red Clay’s tuition tax increase.  Their 2 cent increase.  Keep in mind, compared to Appoquinimink, Red Clay has, as of last September 30th, 2,169 special education students.  They have 156 Pre-K, 302 in K-3 Basic, 1,104 in 4-12 Basic, 343 in Intensive, and 264 in Complex.  Their complex number is three times that of Appo’s.  They have more in every single category.  And yet, their needs based funding increase for their tuition tax was part of the $815,000 they talked about at their board meeting last week.  Red Clay publicly announced that portion of their tuition tax increase was $250,000.00.  That is a $565,000 difference.  Since we know Appo didn’t spend a huge amount more for out of school placements between FY2015 and FY2016, are we really supposed to believe they need all those extra funds to cover this gigantic increase for special education students?  This is why I was angry the other day.  I knew something didn’t smell right the second I saw the WDEL article.

A commenter from the Appo article stated the board discussed how the board was shocked when they got the numbers in from other districts.  I listened to all their board recordings for this year, and I only found one where they specifically talked about this issue, from their February 23rd board meeting.  I painstakingly transcribed that part of the board meeting.  And I do mean painstakingly.  Appoquinimink’s board voted last year to record their meetings and put them up on their website.  Which I am grateful for, but for the love of all that is holy, please talk into the microphone.  Presenters do great with this, but the actual board members are very difficult to hear many times.  Governor Markell signed House Bill 61 last month, so all public school boards (including charters) will have to start doing this when school starts.  That doesn’t mean you don’t talk into the device that, you know, actually records the meeting.

Here is the conversation.  And I do apologize in advance.  I don’t know which name belongs to the male and female board members that discussed this with the district’s CFO, Dr. Longfellow.

Female Board Member: I have another question about the tuition.  So, for tuition to outside districts, how comfortable are you with the way that they are going to charge us every year?  Cause we’ve had issues with Christina.  Is it something that seems like when the bills finally come in they make sense, or?

Dr. Charles Longfellow: I don’t see the details, even if I ask for the details.  I’m given numbers, I’m trying to say this the right way.  I don’t know if they’re the right numbers or not.  They seem reasonable, but by law we have to pay what… when they send a bill to the Department of Ed and the Secretary of Education,  we asked for detail, we were given detail.  That’s as far as we could go with it, so, uhm, that’s the process.  Through legislation it could change but that’s where we are.

Female: I know I ask this question every year…

Longfellow: And that’s fine

Female: Are we allowed to request that the DOE audit those kinds of things?

Longfellow: Well they do get audited but not to the detail of what expenses go into what we are billed. They have to track their expenses separately.  What they do is take everything they’ve spent on the program, locally, cause the state contributes money too.  They can’t charge us what the state pays them.  But for all the local dollars that are paid for the programs, they take the number of students that go there, divide it by the number of students we send there, and that’s what they bill us.  That’s also been something we’ve said before, that, autism is, you know, a spectrum.  So there are some students that need a lot of resources, there are some students that don’t need as many resources.  Yet the bill that we get is the same for every kid.  So what we have been doing is, there was a time, when we thought about, what can we do to serve students in district that don’t have a larger amount of needs.  There were some parents saying, “It’s the Delaware Autism Program.  I want my kid going there.”  So we would talk to them and find out if that was truly the best thing for them.  Is Dr. McAuley here? (No).  She could probably give a little more background on that.  We did that but that was a couple years back.

Female: It’s always been on my radar since that giant adjustment a couple years ago.

Longfellow: Yeah, I have the fuzzy, but not the warm and fuzzy. Let’s just put it that way.

Male Board Member: Our projected shortfall is $702,000, but how much is the difference of what we thought the shortfall was going to be and what it actually is? Is it a case that the tuition costs are $702,000 more than we thought?

Longfellow: We’re not there yet. We’re still working on projections on all this.  Cause we don’t have our bills from those other districts.  We don’t have our, uhm, final count from some of the other outside placements. 

Male: Cause I’m looking at the numbers you sent us. The tuition tax revenue is estimated in the final budget at $8.5 million. 

CFO: Right.

Male: But then I look to the final budget for expenses, and it has tuition of $9.1 million.  But in the original budget, it shows $9.01 million so It looks like it’s $90,000 more.  Either way, whether it’s $9.1 million or $9 million is more of a tuition tax we’re paying. 

Longfellow: Yeah, yeah, we had a starting balance here, so that’s where that comes in.

Male: So one of the reasons (inaudible)

Longfellow: Let me take a look, because… We might have had to raise it.  I’ll have to take a look at the history here. 

Female: I think we did.

Longfellow: Yeah, we did raise it. 3.6 cents this year. 

Female: That’s in July. We voted on it in July.

Longfellow: Well the bills are due to the Department of Ed in January, so they should be down there. So soon as I get them back from DOE the districts will bill me and that’s when I’ll know.  So we have some preliminaries.  But there is always a process where they send us a bill and I say give me a list of students behind the bill.  They send the list.  Our special education department takes a look and says this kid doesn’t belong to us.  You never told us about this one, this one’s a ward of the state so the state has to pay 100%.  It’s just some back and forth.  So typically, we’ll know for most of them by April, but that’s hopeful.

Male: It’s an 80/20 split, right, or 75/25 split, the state pays their share and we pay our share…

Longfellow: Well they earn units, the programs earn state units for the students that are in their programs.  So it’s not really an 80/30 split.  It could be they’re earning units from the state but they’re charging us for, say, the local side of the salaries for the staff they have in place and the students have some severe needs for related services or additionals resources or something too, so it’s not really a straight rate… that goes back to what Ms. Wright saying “How do we know what we’re actually being billed for?”

Male: So then what happens. I know we talked about how 167 kids we got on September 30th started with us, those special needs kids, so are we stuck with being the state side of their special ed classes?

Longfellow: Yes. And we have to pay the local side of their special ed costs out of what resources we have.  That’s part of, when it went up $90,000, that’s part of what’s here. 

Notice how they don’t really discuss why they are sending complex special education kids to other districts, but more of the money aspect of it?  I know, a board needs to know what is going on financially.  Which is my whole point.  I’ve seen way to many boards that just take the word of everything told to them.  They see a paper with numbers on it, might question a little bit, and leave it at that.  There was no discussion around what the nature of the shortfall was.  Instead, they blamed it on Christina instead of questioning the actual shortfall.  It’s a nice way to dance around the true subject.  Where is their special education money going?

Demand Funding For Delaware K-3 Basic Special Education Students

The Delaware Special Education nightmare has gone on long enough.  Years ago, Delaware Governor Jack Markell signed a bill to give extra funding for special education students.  With categories such as basic, complex and intensive, this unit-based funding model allots funds based on the number of special education categories there are in each grade at each school.  For basic special education funding for students in Kindergarten to 3rd grade there is no difference in the funding than their peers in regular education in those grades.  Last year, State Rep. Kim Williams introduced House Bill 30 which would give this funding to students in those grades.  It was released from the House Education Committee soon after but it has sat in the House Appropriations Committee ever since.  Meanwhile, our Governor, in his latest proposed budget for FY2017 has failed once again to give that funding.

The result of this is hundreds of Delaware students not getting proper special education services, required by Federal law.  This is what happens: a parent requests an IEP.  Many schools in Delaware deny the IEP in those grades since they know they won’t get the funding for it unless it is a higher category.  If they do approve it, they have to use the miniscule federal IDEA-B funding they get and the rest comes from their local funding.  In many cases, services written into the IEP such as occupational therapy or counseling are not given to students because of this obscene lack of funding.

The Wilmington Education Improvement Commission is misguided if they truly believe any funding for their redistricting plan will give funding for students in K-3 who are considered basic special education.  The Governor did not put it in the budget.  But they still present to public bodies that these students will get these funds.  And every time I call them out on it, someone tells me “we’re working on it”.  If it was truly a priority, it would be there.  No questions asked.  I’ve been telling them this since day one.  The Wilmington advocates can talk about how many generations of students have lost because of no services.  How about the millennia of people with disabilities who have always been cast aside with education funding as if they aren’t even worth it.  Federal law requires the funding to be available to be provided for students with disabilities.  If you want to talk about discrimination and mistreatment, please remember that.  And also remember many African-American students also have disabilities, statewide.

Our Delaware Department of Education and Governor Markell want to provide $18 million in funding to early education for the next fiscal year.  One of the goals of this, according to them, is to reduce the amount of students needing special education services in their first few years of school.  On the surface, this looks honorable, but be assured that it is not.  What Markell and the DOE have failed to recognize (or know completely) is the fact that disabilities are neurologically based.  By giving them the extra support in those early years and then putting them into Kindergarten without the funding to sustain those services, these children will suffer.  It is not right to put the bulk of this funding on the local education agencies.  By not giving this funding, these children have suffered.  No amount of Response to Intervention is going to cure a disability.  I firmly believe it is a tactic by which these special needs children are purposely denied this funding.

These students don’t do well on state assessments.  Markell and the DOE have always known this.  State assessments are not designed to make students proficient.  They lose their meaning if everyone does well.  So the powers that be want these students to do bad on the Smarter Balanced Assessment.  I have heard horror stories this year from teachers who say it takes students with disabilities five times longer to do sections of the test than their regular peers.  And they still won’t reach this mythological proficiency.  This was something that could only be carefully planned.  It is why the Governor gave NO allocations for it in any budget since he signed the needs-based funding bill.  It would interfere with his Education Inc. testing buddies and their huge hedge fund returns.  It is also far easier to give these students a career path towards menial jobs than to give them the funding they deserve so they could perhaps have a shot at success.  You may fool people all the time, but you have NEVER fooled me.  One only needs to look at Delaware Online Checkbook to see this strategy of yours has hurt many students and families over the past four years.

So please sign the change.org petition: https://www.change.org/p/peter-schwartzkopf-pass-house-bill-30-in-delaware-giving-basic-special-education-funding-to-students-in-k-3 and demand our General Assembly pass House Bill 30.   The time is NOW for this bill to move forward.  We can no longer sit by and watch while the most vulnerable to students suffer needlessly.  Tonight at the Red Clay board meeting, Superintendent Dr. Merv Daugherty told the board and the audience to support HB30.  Their board passed a resolution supporting it.  All Delaware school boards need to do the same.  I asked the Capital Board of Education months ago to do the same thing but they have not addressed this at all.

redclayhb30resolution

 

Auditor Report On 9/30 Enrollment Counts Shows Inconsistency Statewide & Major Reporting Issues At 4 Delaware Charters

Four Delaware charter schools will have to return funds based on 28 students they received funding for from the state based on not meeting specific criteria for those students.  Yesterday, Delaware State Auditor Tom Wagner released the final report of a statewide audit on the September 30th Enrollment Counts which determines how many units a school gets for salaries, energy costs and equalization funds.  The report does an excellent job of describing how funding in Delaware education actually works without needing an advanced accounting degree to understand.  The report showed the biggest problem is inconsistency with the districts and charters on how to submit the data as well as no specific requirements for the school or district unit count coördinator to even attend the training offered by the Delaware Department of Education.

Four charter schools were specifically called out for not having the proper documentation for early Kindergarten entrance students.  This is for students who are considered gifted and talented and are not the age of 5 by August 31st, as required by state law.  The Auditor of Accounts found 28 students at these four charters should not have been counted in the unit count and the schools should return the funding they received for those students.  The charter schools were EastSide (11 students), Family Foundations Academy (12 students), Kuumba Academy (3 students), and Delaware College Prep (2 students).  Given the fact that EastSide and FFA are run by the same executive director, Dr. Lamont Browne, and that over 82% of these unlawful unit count claims are occurring at the schools he runs is very troubling.  As well, the Board President is the same at both schools: Charles McDowell.  FFA already had an audit report released late last year based on the prior school leaders massive fraud and theft of school funds.  Kuumba Academy was spotlighted with irregularities based on an inspection report released last year.  Red flags came up over unauthorized compensation for the Head of School and a custodian.  Delaware College Prep did not have their charter renewed by their authorizer, Red Clay Consolidated School District, and will close at the end of this school year.  They were also mentioned in the same audit inspection as Kuumba with unauthorized reimbursements to their Board President.

One thing the report showed, which I was not aware of, was the role special education service providers play in the unit counts.  According to the below report, providers such as speech-language pathologists, physical therapists, occupational therapists, school psychologists and other providers are based on the following:

1 unit per 57 Regular Education students in Kindergarten to 3rd grade, Basic Special Education students 4th-12th grade, and Regular Education students 4th-12th grade

1 unit per 5.5 Intensive Special Education students

1 unit per 3 Complex Special Education students

If there is one thing I have heard in Delaware it is how schools are unable to provide these services consistently, especially for basic special education students.  This is an even bigger problem with having the unit formula be the same for Kindergarten to 3rd grade basic and regular students.  But all students in basic special education from Kindergarten to 12th grade are not given any advantage over regular students in receiving these services.  This is a major problem and I would urge any legislator to remedy this problem immediately!

The report also highlighted the role Innovative Schools plays in enrollment counts.  The Auditor of Accounts felt Innovative Schools should not be the agency conducting the enrollment counts but the school unit count coördinator.  They advised either way the accountability falls on the school leader.  Several charters and a scattering of traditional public schools were mentioned in the report in various sections covering details such as training participation for the unit-count system and having a clear policy manual on the process.  The full report is below.