Secrecy provisions in ‘distressed schools’ bill go too far

Indiana lawmakers may have been trying to do the right thing last week when they created a way for financially struggling school corporations to avoid being flagged for takeover by the state. But they went too far when they made those procedures secret.

The Senate Appropriations Committee voted to create new exceptions to the state’s public records and open meetings laws, limiting public scrutiny of efforts by local and state officials to turn around a school corporation’s finances before it gets placed on a state watch list.

Indiana Statehouse

As Steve Key of the Hoosier State Press Association pointed out, this isn’t just bad public policy – it’s likely to be counterproductive by blocking public participation in important government decisions.

“To me it’s puzzling,” he said. “It doesn’t allow people in the community to support their school district or push the administration and the school board to turn things around before it gets worse.”

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Why public records should be made public

School grades are bogus, so why ask for more of them? That’s a reasonable question.

Why would a critic of the state’s system of grading schools on an A-to-F scale ask the Indiana Department of Education to provide data showing what grades the schools would have received for 2014-15 it if weren’t for “hold harmless” legislation approved by the General Assembly?

Why would I file a complaint with the Office of the Public Access Counselor when the department refused? And would I share the data with readers if I got my hands on it? Yes, absolutely. Here’s why:

Transparency matters

Public records belong to the public and, on principle, should be disclosed unless there’s a compelling reason to keep them secret. And in this case, there really isn’t. The preamble to the state Access to Public Records Act gets it just right:

“A fundamental philosophy of the American constitutional form of representative government is that government is the servant of the people and not their master. Accordingly, it is the public policy of the state that all persons are entitled to full and complete information regarding the affairs of government and the official acts of those who represent them as public officials and employees.”

State education department won’t disclose school grade data

The Indiana Department of Education is refusing to release data used to determine school grades for 2015, arguing it falls under an exception in the public-records law that says state agencies don’t have to disclose information that is “deliberative” and used for decision-making.

But an attorney and advocate for open government says the department is wrong to conceal the information, which would show how much grades might have been affected by the new, more difficult version of the ISTEP exam that students first took last spring.

“I think they’re misconstruing the deliberative information exception,” said Stephen Key, executive director and general counsel for the Hoosier State Press Association. The exception is intended to protect records that are opinion or speculation, he said, and the school-grade information is neither.

As has been extensively reported, Indiana switched to new learning standards and a harder-to-pass version of ISTEP in 2014-15. Passing rates plummeted and many schools expected to see their grades drop. In response, the General Assembly rushed through legislation to “hold schools harmless” if their grades got worse. Each school would get the higher of the grade it earned in 2014 or 2015.

When the Department of Education released the grades last month, it reported only the grades that schools were awarded, not the grades they actually earned. I emailed the department’s press office to ask for copies of the grades that schools would have received based on their 2015 test scores. As an alternative, I said, the department could provide the scores that schools earned on a 4-point scale, the basis for calculating the grades. These scores were made public in 2013 and 2014.

At the suggestion of the department’s press secretary, I filed a request for the data under the Indiana Access to Public Records Act.

New school grading system produces little change

The new school grading system that Indiana will adopt in 2016 is supposed to give more weight to student growth on standardized tests and less to straight-up test performance, making it more likely that high-poverty schools can earn high grades.

But that may not happen. In a comparison of the grades that schools received in 2014 with the grades that they would have received if the new system had been in effect, there’s not much difference.

A majority of schools would have received the same grade under the new system as under the old. Almost no schools would have seen their scores rise or fall by more than one letter grade.

The Indiana Department of Education calculated grades that schools would have received, based on their 2014 test scores, if the proposed new system had been in place. The department provided the grades in spreadsheet format in response to a public records request.

Public records quest meets dead end

My obsessive quest to uncover the whole story behind the 2012 Christel House Academy grade-change saga has apparently come to an end. And not a happy one.

One year, one month and 22 days after I filed a public-records request, the Indiana Department of Education responded. “After review of your records request, it was determined the Department does not maintain the records you are requesting,” legal assistant Leslie-Ann James said via email.

Oh, well.

The request was for certain DOE staff emails concerning the A-to-F school grading system that was being rolled out in 2012. The goal was to figure out when and why the department got rid of a “ceiling” on the points schools could earn for English or math test scores or student growth. This has never been explained to my satisfaction.

Remember that Associated Press reporter Tom LoBianco unearthed DOE emails last summer that showed then-Superintendent of Public Education freaking out because Christel House, a highly regarded Indianapolis charter school, was going to get a C under the new grading system. Department staff scrambled to make changes, and Christel House ended up with an A. Officials decided to ignore test scores for the school’s high-school students. But that only pushed its grade to a B.

How did it get to an A?

Records request leads to wait

A year ago this week, I filed a public-records request with the Indiana Department of Education. I’m still waiting to see if I’ll get what I asked for.

Kelly Bauder, a state DOE staff attorney, admitted this week that the department has been running behind on responding to a trove of records requests. Two employees who were working on the task left the department, she said. A new legal assistant has been hired and is learning the ropes.

“We’re hoping to get caught back up in the next couple of weeks,” she told me.

My request was for copies of departmental emails from 2012 concerning changes in the state’s school grading system. The objective is to tie up a loose end to a story.

Last summer, Associated Press Reporter Tom LoBianco disclosed DOE emails showing how former Superintendent of Public Instruction Tony Bennett and his staff scrambled to tweak the system so Christel House Academy, an Indy charter school run by a Bennett political supporter, would get an A instead of a C.

Those emails showed the department decided not to count the performance of Christel House’s 9^th and 10^th-graders for accountability purposes. That boosted its grade from a C to a B. How did it get to an A? Thanks to Cynthia Roach, director of assessment for Indianapolis Public Schools, we learned the other change: getting rid of a “ceiling” on points awarded elementary schools for math or English test scores.

But it was never clear when, why and by whom that decision was made.

Denial of school voucher data raises accountability issues

It’s a fundamental principle of government transparency: When a government agency spends the public’s money, the public should know who is getting paid and how much.

That’s why it’s disturbing that the Indiana Department of Education rejected requests from the Monroe County Community School Corp. and the Bloomington Herald-Times for information about students who receive state vouchers to attend private schools.

This isn’t a clear-cut case. It pits the principles of transparency and accountability against reasonable concerns about privacy. If the state discloses information about voucher recipients, should it also reveal who receives need-based state aid for college? Should it name people who get food stamps or other public assistance?

Disclosing information about individual students also could run afoul of the Federal Educational Rights and Privacy Act. The H-T appealed the denial of its request to state Public Access Counselor Luke Britt; and Britt cited FERPA in upholding the DOE decision.

But FERPA seems to make less sense as grounds for withholding data from the MCCSC. It is entrusted, after all, with information about 10,000 students who attend local schools.

A ‘scarlet letter’ for bad teachers?

Today Indiana residents can go to the State Department of Education website and learn which schools in their community have earned As, Bs, Cs, Ds and Fs from the state. In the future, will we be able to find out which teachers are rated as highly effective, effective, improvement needed and ineffective?

Probably, even though the state the law that prescribes a new system of teacher evaluation was supposed to prevent that from happening.

The law, Senate Enrolled Act 1, orders schools to adopt an evaluation system that rates all teachers by those four categories of effectiveness. It requires school districts to report aggregate data on their teachers’ ratings to the Department of Education once a year – i.e., how many are rated highly effective, how many are ineffective and so on. But those reports, the law says, may not include names or any other personally identifiable information regarding the teachers.

So we presumably won’t be able to get information about individual teachers from DOE officials, because they won’t have it. But can we get it from local school districts?

Maybe. If a school district has a list of teachers and their effectiveness ratings, it would be a public record. If we make a request under the Indiana Access to Public Records Act to inspect or copy the list, the district would arguably have to make it available. It wouldn’t appear to fall under any of the exceptions in Section 4 of the act, which lists types of records that don’t have to be made public.

School attorneys may dispute this. They could argue that evaluations won’t have to be disclosed because they are part of teachers’ personnel files. But even if they’re right, there are two ways in which some information about evaluations will become public.

First, SEA 1 specifies that teachers who are rated ineffective or improvement necessary may not receive any increase in pay. It’s well established that salaries for employees of public schools are public information. (Some newspapers make such data available online). Once the new law is in effect, we can compare any teacher’s salary for 2012-13 and 2013-14. If the teacher gets a raise, we know he or she was rated effective or highly effective. If not, we may surmise otherwise.

Second, SEA 1 says schools should avoid putting a student in a classroom taught by an ineffective teacher for two straight years. But if the school can’t avoid doing so – for example, the student had an ineffective teacher in third grade and the school has only one fourth-grade teacher, who is also ineffective – then the school must inform the student’s parents. There’s nothing to stop the parents from going public.

Interestingly, it’s not just teachers unions that think this is a bad idea. The National Council on Teacher Quality, in a lengthy report that largely praises Indiana and a few other states for their changes in teacher evaluation, calls this a “scarlet letter” approach and says it is bad policy.

“NCTQ thinks this does a tremendous disservice to the teaching profession,” the report says. “If a district has evidence that a teacher is ineffective, state policy should provide the means for the district to take the necessary steps to remove the individual from the classroom, not humiliate the teacher. Reporting on teacher effectiveness data by the state, district and school level is essential. But when it comes to accountability for ineffective teachers, sending a note home to let families know their child’s teacher is not so good is no solution at all.”