No, Eva, You Can't Do Whatever You Want

When Eva Moskowitz doesn't get exactly what she wants she stomps her feet, takes her ball and goes home:

Success Academy Charter Schools won’t offer pre-kindergarten classes next year after losing a high-profile fight with city and state officials.

The charter network has refused to sign the city’s pre-K contract, arguing that it includes inappropriate regulations about how charter schools manage their time and design their curriculum. But neither Mayor Bill de Blasio nor State Commissioner MaryEllen Elia has allowed Success to bend the rules, and both have insisted that Success sign the contract or lose funding. 

In recent months, Success officials have continued their fight in court. But with no resolution in sight, the city’s largest charter-school network will close its three existing pre-K programs and will not open two more planned for next school year, CEO Eva Moskowitz announced Wednesday.

“It is unbelievably sad to tell parents and teachers that the courts won’t rescue our pre-K program from the mayor’s war on Success in time to open next year,” Moskowitz said.

There are two issues here: first, does the city have the right to demand that Success sign a contract before it gets funding for its Pre-K program? Reading Elia's decision in the matter makes it crystal clear that not only did the city school district have every right to insist on a contract, it had an affirmative duty to do so:

In addition, the Department’s [NY State Education Department's] RFP required that SUFDPK [Statewide Universal Full-day Pre-kindergarten] programs operate under the jurisdiction of the local board of education, which would be responsible for the proper disbursement of and accounting for project funds. The Department’s RFP required applicants to certify that the program would be conducted in accordance with all applicable federal and State laws and regulations, application guidelines and instructions. Applicants were also required to sign a Statement of Assurances regarding the program. The Department’s RFP explained that the project period for grants in year one would be from July 1, 2014 to June 30, 2015, and that grantees would have the opportunity to renew funding on an annual basis provided that the programs meet quality standards and all applicable requirements, and subject to the annual appropriation of funds in the State budget for this purpose. [emphasis mine]

So the NYCDOE was the applicant, was responsible for disbursing the monies to the Pre-K providers -- which could include charter schools like Success -- and was ultimately responsible for making sure the program was run correctly. And it's not like Moskowitz and her team didn't know this:

On August 24, 2015, SA Harlem 1, SA Cobble Hill and SA Williamsburg began their pre-kindergarten classes. By email dated August 27, 2015, DOE congratulated Success Academy NYC on the opening of its pre- kindergarten classes but advised that, until a contract is executed, “you are operating your Pre-K classrooms at your own risk.”

I know Moskowitz doesn't think the rules should apply to her because her schools are so awesome. But what made her think she was going to get her money if she didn't follow regulations? If she thought the terms of the contract were so unreasonable, why did she apply in the first place?

Back in March, Moskowitz took to the New York tabloids, which are always happy to help spread the gospel of "choice," to argue that de Blasio's administration was overstepping its bounds by insisting on a contract:

Two years ago, New York State passed a law giving charter schools the right to operate pre-Ks. The law provided that with respect to oversight, “all such monitoring, programmatic review and operational requirements . . . shall be the responsibility of the charter [authorizer].” Thus, a charter’s pre-K program would be regulated and overseen just like its other grades.

That's not quite right. Here's the law in question; check out section 3:

3. (a) The universal  full-day  pre-kindergarten  program  shall  make
  awards  to  (i)  consolidated applications submitted by school districts
  which include pre-kindergarten programs offered by  schools,  non-profit
  organizations, community-based organizations, charter schools, libraries
  and/or  museums, which shall demonstrate geographic diversity within the
  area to be served as well as diversity of providers; and (ii) non-profit
  organizations, community-based organizations, charter schools, libraries
  and museums, which may apply individually to the extent  allowed  under
  paragraph  (b)  of  this  subdivision. Any consolidated application must
  include, but is not limited to, the names of individual  locations  and
  providers, applicable licenses, facility lease information, and intended
  staffing plans and certifications.


(b)  Prior  to  submission  of  a  consolidated  application, a school
  district shall widely solicit non-profit organizations,  community-based
  organizations, charter schools, libraries and museums located within the
  school  district  to be included in its application. The school district
  shall notify any applicant who has been  denied  for  inclusion  in  the
  consolidated  application no later than two weeks prior to submission of
  such application. Such eligible providers denied for inclusion may apply
  individually as provided in paragraph (a) of this subdivision. [emphasis mine]

I'm not a lawyer, but this is awfully clear: Success Academies didn't have to apply along with the NYCDOE. They could have gone it alone, but chose not to.

So NYC, as the lead applicant in a consolidated application, has every right to demand the other organizations that sign up play by their rules. If the other organizations don't want to go along, fine -- submit your own application. But don't whine afterward that you don't like your school district's conditions when you could have submitted your own application.

Now, I'll admit that the law isn't explicitly clear in saying that charters applying on their own are self-regulating while charters applying as part of a consolidated application are subject to regulation by the school district which leads the application. But, as Elia writes in her decision, it's the only logical conclusion any applicant could come to:

I agree with petitioners that Education Law §3602-ee(12) states that the monitoring, programmatic review and operational requirements for SUFDPK programs shall be the responsibility of the charter entity, in this case the SUNY trustees. However, for the reasons stated below, I disagree with petitioners’ interpretation of this language. Moreover, I disagree with petitioners’ argument that the effect and intent of Education Law §3602-ee(12) is to prohibit school districts such as DOE, which operate SUFDPK programs via consolidated applications that include charter schools as eligible providers, from regulating the pre-kindergarten programs being funded through the consolidated application. To take petitioners’ position to its logical conclusion would mean that DOE would be required to provide charter schools’ pre-kindergarten programs with public funding without any mechanism to ensure that the statutorily required eight quality elements

and other program requirements are being met and that such public funds are being spent in accordance with the requirements of Education Law §3602-ee, the Department’s RFP and DOE’s RFP. 

Again: if Moskowitz didn't like the terms of this deal, she was free to strike out on her own. If she doesn't like the predicament she's in, she has no one to blame but herself.

One more thing: Moskowitz claims that the monitoring of her Pre-K program should have been left to her authorizer, the State University of New York. Had she applied on her own, however, NYSED would have been well within their rights to ask whether or not SUNY actually has the capacity to properly monitor the program. You might not like NYCDOE for all sorts of reasons, but at least it has an infrastructure in place to monitor Pre-K programs; I very much doubt SUNY has anything equivalent (given what's been going on inside Success Academy lately, I think I'm justified in having my doubts).

Which brings us to the second issue: even if NYCDOE had the right to demand a contract with Success Academy, were the demands of the contract too onerous? Here's Moskowitz once again:

New York City, however, has insisted that charter schools agree to a 241-page contract that regulates every aspect of their programs: their curriculum, field trips, professional development, scheduling, discipline, playtime and use of technology. For example, it prohibits more than three field trips per year involving transportation; dictates the precise amount of playtime that must be allowed (2 hours and 7 minutes); and prohibits the use of a SmartBoard (an interactive screen that is essentially a modern blackboard) for more than a 30 minutes a week.

As Elia notes in her decision, however, every one of these restrictions is both reasonable and in accordance with the guidelines set out by NYSED's Division of Early Childhood Education. In other words: had Success struck out on its own, it probably would have had to adhere to guidelines quite similar to these.

The city has limited school resources; it's reasonable for them to put a cap on field trips that use transportation. We know that high-quality Pre-K should include significant amounts of playtime; it's reasonable for the city to set a lower limit. We know we should limit the time young children spend in front of screens; it's reasonable to set a limit on it, SmartBoard or otherwise.

And if Moskowitz doesn't agree, she shouldn't have signed up. As Elia writes:

Moreover, petitioners’ argument ignores the fact that a charter school’s participation in the SUFDPK program is voluntary. As petitioners would have it, a charter school could voluntarily apply for a grant of State funds but assert an exemption from all grant requirements based on Article 56 and still be entitled to such State funds. The Legislature could not have intended such a result, which is both irrational and contrary to public policy.

Moskowitz doesn't seem to understand this very basic idea about accountability. She seems to think that because she's drilled-and-killed her way to some decent test scores, she should be able to do whatever the hell she wants:

However, there is an important principle at stake. Not only is the city violating the pre-K law, the whole idea of charter schools is that they should be freed from the control of the district bureaucracy. If all pre-K programs, including those run by charter schools, have to subject themselves to the rules and requirements imposed by the city, then we are back to an educational monopoly.

The city says its requirements are reasonable. That’s debatable, but it’s beside the point. If the Obama administration were to seek the power to regulate the content of this newspaper, the issue wouldn’t be whether or not the regulations were reasonable, but whether the government ought to regulate the free press. In our case, while we are subject to regulation, it is regulation by a different government entity to ensure that the city doesn’t have an educational monopoly.

The city also says it has to be able to assure that the pre-K program Success offers is of high quality. However, that is the responsibility of our authorizer, the State University of New York.

Moreover, being subject to the city’s control will diminish the quality of our program, not enhance it. Success’ students pass state tests at more than two times the rate of the district schools and more than three times the rate of the district schools in the poor neighborhoods we primarily serve.

This is a ridiculous argument -- on multiple levels. First, passing noisy, questionably valid assessments doesn't automatically give you carte blanche to ignore basic rules of transparency and accountability. The taxpayers of New York have every right to expect that organizations receiving public funds follow the rules laid out by their duly elected representatives.

Next, given everything we've learned this past year about how Success actually operates, it takes a special kind of smug for Moskowitz to claim superiority over the public district schools.

Finally: has Moskowitz never heard of the First Amendment? Her comparison of the government regulating the content of a newspaper to insisting a public contractor sign a contract is so dumb that only an outlet as bad as the Daily News would put it into print.

This is actually really simple: New York City has clearly laid out regulations regarding Pre-K programs. Maybe you don't like them; fine, challenge them however you want. But you don't get to take public monies and then decide, after the fact, that you don't want to play by the rules.

I wish I could say that Moskowitz is an outlier -- but she's not. The charter sector, despite its many, many, many, many, many failings, has done a terrible job of policing itself. I have no doubt there are many decent, sincere educators operating charter schools -- but they have been largely silent on calling out bad actors within the sector, or addressing the structural deficiencies that encourage bad behavior.

Instead, it appears they are asking for more autonomy, less regulation, and unchecked growth, no matter how badly that may hurt public district schools. And when anyone dares suggest tightening up the regulation of charters, watch out: Eva Moskowitz and her fellow charter cheerleaders, like Campbell Brown, will work themselves up a froth of righteous indignation:

You might say: He was referring to your position about pre-K, which seems inflexible. Every other charter school apparently signed an agreement to follow city rules, why do you think you’re above doing that?

We have fought for 10 years to build schools free from any influence that might dilute or compromise our program for our students. Our independence from district oversight is inextricable from that program.

Why? So you can use a SmartBoard more? So you can have the kids play less? Or, as Elia's decision suggests, might there be another reason?

In response to petitioners’ complaint regarding Article 5(b)(2) of DOE’s proposed contract, which limits SUFDPK providers’ authority to “reject, suspend, expel or otherwise refuse to provide any or all of the Services to any eligible child,” DOE explains that it has a “strong interest in ensuring that disciplinary measures in the consolidated UPK program are age and developmentally appropriate and that 4 year-olds receiving services within the consolidated UPK program are not subject to suspensions or expulsions.” DOE has articulated a rationale for its requirement that is based in sound educational policy and is not inconsistent with Education Law §3602-ee. While petitioners have included such provision in their “non- exhaustive” list, they have articulated no rationale as to how such provision violates either Article 56 or Education Law §3602-ee.

We have extensive documentation of Success Academy's disciplinary practices, including suspensions for very young children. We know how Moskowitz feels about NYC's attempts to remake its disciplinary codes. Is this the "influence" she and Brown are worried about? That the city might stop Success from imposing its "no excuses" philosophy on 3-year-olds?

If that's the case, it's probably better for everyone if Moskowitz just stays out of Pre-K.

Happier times.

ADDING: More from Peter Greene.