A busy day: Protesting billionaires pushing charter schools & then winning our lawsuit vs the DOE on School Leadership Team meetings

Yesterday was quite a day.  In the morning, I protested with AQE and the Hedge Clippers folks, outside an event at the Harvard Club, where Massachusetts Governor Charlie Baker was speaking about the referendum to raise the cap on charter schools in his state called Question 2.

This effort has been funded with millions of dollars in "dark money," and we were there to make them feel uncomfortable.  Jeremiah Kittredge of Families for Excellent Schools walked into the building while we were chanting, "Governor Baker epic fail! Our public schools are not for sale!"  FES has poured at least $13.5 million into this election -- without disclosing its donors, although one can assume the money comes mostly from the usual suspects -- Walton family members and NYC hedge fund operators.

After the meeting, Baker was scheduled to meet with Bloomberg, trolling for even more bucks -- after Bloomberg had already given $240,000 to the effort.  Meanwhile, all over the country, from California to New York, Washington to Georgia, billionaires are trying to buy  school board races, judgeship elections, referendums, and control of the NY State Senate - all with the same nationwide goal of privatizing public schools, and wresting them from democratic control. 

Then I returned back to my office and learned that the Appellate Court had finally ruled on our lawsuit to keep School Leadership Team meetings open, which the DOE had closed to the public starting in 2013. To make a long story short, we won!  Here is our press release, and here are articles about the decision in the Daily News, the Village Voice and Chalkbeat.  

The backstory is this: In order to test DOE's determination to close these meetings, and to challenge a particularly weak decision by another judge who ruled for DOE in the Portelos case, retired teacher Michael P. Thomas asked to attend an SLT meeting at Portelos' former school, IS 49 on Staten Island, in March 2014.  After initially getting permission, the SLT Chair turned him down, and he was blocked when he tried to enter the building.  

He then sued the DOE on May 17, 2014, and Class Size Matters and Public Advocate Tish James intervened shortly thereafter to represent parents and the public's right to know.    Judge Peter Moulton ruled in our favor in a slam-dunk decision on April 2015, but the Chancellor Fariña told principals to ignore the decision and appealed it.  

The Appellate court heard arguments from both sides on January 21, 2016 -- and took nearly a year to rule.  But finally, in another slam-dunk, unanimous decision, they reaffirmed the lower Court ruling that SLT's are public bodies in state governance law, and thus their meetings must be open to the public. Much thanks goes to Michael Thomas, Tish James and the attorneys from NY Lawyers for Public Interest and Advocates for Justice who represented the Public Advocate and Class Size Matters in court.

Yet what has been particularly galling to me throughout has been the DOE's lame argument that they could close these meetings because SLT's, made up of half parents and half school staff, were purely "advisory" bodies.  This sort of dismissive -- and frankly illegal -- attitude towards parent participation in decision-making has continued over from the Bloomberg administration.

In 2007, when Chancellor Klein tried to strip the authority of School Leadership meetings by rewriting the Chancellor's regs, I helped Marie Pollicino, a parent SLT member from Queens, submit an appeal to State Commissioner Mills.  Mills also found in our favor, forcing Klein to rewrite the regs and recognize the authority of SLTs to write Comprehensive Education Plans for their schools and be consulted on a range of issues, including a school-based budget aligned with the CEP, as the law clearly requires. (A timeline of these events  is on Class Size Matters' website.) And yet now, despite Mayor de Blasio's promise that parents would finally be respected and their input taken seriously, it was happening all over again.  De Blasio also promised increased transparency as to education spending, but that pledge has been ignored as well.

Sadly, even now Chancellor Fariña and the DOE attorneys seem uncertain as to whether to concede after two, overwhelmingly decisive court opinions against their position. In the Daily News, a DOE spokesperson is quoted as saying, "The state Legislature never intended to mandate that SLT meetings be open to the general public.  We are considering our options.” Really?  If so, why does NY State Education law 2590-h say  that each school must "provide notice of monthly [SLT] meetings that is consistent with the open meetings law"?  

And why did the previous Chancellor, Dennis Walcott agree that these meetings were open to the public?  After a principal kicked a Riverdale Review reporter out of an SLT meeting in January 2013, the DOE spokesperson repudiated this action after consulting their legal department, saying that "Generally, these meetings are open to the public except if an executive session is being held."  A power point is still posted on the DOE website from the Walcott era, which states "SLT meetings are open to the public.  Teams may find that observers from within the school community or beyond wish to attend SLT meetings." 

Let's hope that DOE doesn't appeal the Court's ruling once again.  Meanwhile, please share this decision with other parents, community members and reporters -- and let them know that as of yesterday, they have a right to attend any School Leadership Team meeting they choose.

 

Victory at last! NY Appellate Court Affirms School Leadership Team Meetings are Open to the Public

Another big win for parents and the public interest!  After a long wait, the NY Appellate Court ruled that School Leadership Team meetings must be open to the public, and decisively countered the DOE claim that SLT's are only "advisory" bodies.  Check out our press release below and the Court's unanimous decision here.

For Immediate Release

Date: October 25, 2016
Contact: Leonie Haimson, 917-435-9329; leoniehaimson@gmail.com

In a rebuke to the NYC Department of Education, which began closing School Leadership Team (SLT) meetings to the public in 2013, a New York appellate court has found that closing the meetings violates the state’s Open Meetings Law.  In a decision released today, the New York Appellate Division, First Department found for the petitioner, Michael P. Thomas, and the intervenors, Public Advocate Letitia James and Class Size Matters, that SLT meetings must be open to the public. 

Contrary to the DOE’s claims, the Court held that SLTs are governmental bodies that have decision-making authority under state law.  The SLT helps formulate "school-based educational policies" and ensure that "resources are aligned to implement those policies,” wrote the Court.  Thus, SLT meetings must be subject to the Open Meetings Law.  The Court rejected DOE’s contention that SLTs, composed half of school staff and half parents, have only advisory powers and thus their meetings could be closed.

On March 17, 2014, retired teacher Michael P. Thomas asked the Chair of the SLT and the Principal Linda Hill of IS 49 on Staten Island to attend their meeting.   The Chair invited him but later rescinded her invitation, and barred him from entering the meeting when he arrived at the school on April 1, 2014.  On May 17, 2014, Mr. Thomas commenced an article 78 proceeding, and the Public Advocate and Class Size Matters subsequently intervened on behalf of parents and the public at large, represented pro bono by Advocates for Justice and New York Lawyers for Public Interest.

On April 21, 2015,  Supreme Court Judge Peter Moulton ruled that "SLT meetings entail a public body performing governmental functions," and thus are "subject to the Open Meetings Law."  He concluded that “the proper functioning of public schools is a public concern, not a private concern limited to the families who attend a given public school."  Chancellor Carmen Farina instructed principals to ignore this decision, and filed a Notice of Appeal on May 22, 2015.  The Appellate Court heard arguments from both sides on January 21, 2016.

Upon learning today that he had won the case, Michael P. Thomas said, "It was a long wait, but well worthwhile to read the court’s decision. Opening SLT meetings will allow the public to observe first-hand the effects of problems plaguing our schools, including underfunding, overcrowding, and poor budgetary priorities.  The Court's affirming that SLTs are more than advisory in nature demonstrates that these bodies have real decision-making power. Unfortunately, in too many cases, principals have improperly usurped the power given to SLTs in state law. Hopefully, the Court's decision will be the first step in helping to resolve the many problems in our public schools."

“Today’s ruling is a victory for parents, students, educators and all of us who believe in transparency and accountability at the Department of Education,” said Public Advocate Letitia James. “After years of having their voices drowned out in the school system, parents are being heard again. Important decisions about our schools must be made in sunlight with input from parents and teachers.”

 “We are delighted that the First Department confirmed in a unanimous opinion the public’s right to attend these very important School Leadership Team meetings,” said Laura D. Barbieri, of counsel to Advocates for Justice Legal Foundation, representing the Public Advocate Letitia James, and Class Size Matters. “The Department of Education must comply with the Open Meetings Law and can no longer exclude the media or concerned citizens who have a right to know what is going on in their neighborhood public schools.”

Said Rachel Spector, Director of the Environmental Justice Program at New York Lawyers for the Public Interest, which represented Class Size Matters: “The court’s decision affirms that when public schools make decisions, they must be transparent: public schools cannot act in secret. We are pleased that members of the public can now attend School Leadership Team meetings without fear of being turned away at the door. This is an important step forward and serves as a reminder to the Department of Education that community participation is crucial to the success of New York City public schools."

 “The law is crystal clear that School Leadership Teams are public bodies, with an important governmental role to play.  Parents and the public have a crucial stake in SLT decisions, when it comes to class size, the use of technology, or any other school-based policies.  Both the Supreme Court and now the Appellate Court have ruled that these meetings must be open to the community at large.  Any attempt by the DOE or principals to ignore this decision, subvert it or appeal to a higher court would be unwise, would further delay the public interest and would waste precious taxpayer funds that are far better used in improving our schools,” concluded Leonie Haimson, Executive Director of Class Size Matters.

The Appellate Court’s decision is posted here: http://www.nycourts.gov/reporter/3dseries/2016/2016_06989.htm

Additional background on School Leadership Teams, along with a timeline and links to legal briefs and news articles, is posted here: http://www.classsizematters.org/parent-empowerment/

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Spending on bureaucracy climbs while Renewal schools continue to struggle with large class sizes

Through a Freedom of Information request and then a lawsuit, the NY Post finally received a list of DOE Renewal administrators and field staff who work out of Tweed and district offices.  According to the list, there are 71 of these individuals with a collective salary last year of $8.4 million.  See the attached spreadsheet and NY Post article here, in which I say that these schools are being buried in an avalanche of bureaucrats. 

Yet the DOE left off the list Renewal Superintendent Michael Alcoff,whose salary last year was $175,000, as well as the 39 Renewal “leadership coaches” and three “Ambassador APs” for Renewal schools, whose estimated salaries are at least $100,000 each.  When these educrats are added, the total cost of the Renewal bureaucracy is at least $12.7 million.

This contradicts a report released by the Independent Budget Office in May 2015, presumably based on DOE data, that said only $200,000 was projected to be spent in FY 16 and FY 17 for Renewal school “administrative field support.”  Quite a difference between $200,000 and $12.7 million.

Last year, Ernie Logan of the CSA, the Principal’s union, complained that “principals in the 94 schools were being overwhelmed with paperwork and meetings and micromanaged to the point that they could not do what they thought was best for their schools.”  Yet what I think is most tragic is that so many of these schools are still struggling with large class sizes, despite repeated promises by the city to the state to reduce them.

Again, in their latest round of Contract for Excellence proposed plans, the DOE claims to be focusing its efforts on reducing class size in the Renewal schools, without any specific goals or commitments, just as they did last year.   Yet we found that last year, nearly 40 percent of the Renewal schools raised their average class size, and only seven percent capped class sizes at the nearly acceptable C4E levels of 20 students per class in grades K-3, 23 in grades 4-8 and 25 in high school.  As many as sixty percent of these schools still had classes as large as thirty.  This is simply unacceptable.  While millions are being spent on a phalanx of bureaucrats, micromanaging teachers who are struggling to help their students, students continue to struggle in classes this large.

Serious privacy concerns with the new Summit/Facebook platform, used in 100 schools across the nation

Our concerns about the open-ended data sharing of the Summit/Facebook software platform was featured on the front page of the Washington Post. This software is in 100 schools nationwide, about two thirds of them public schools. The list is here. Two of the schools are in NYC:  the Bronx Writing Academy in District 9; and J.H.S. 088 Peter Rouget in District 15 in Brooklyn.

Summit is sharing the student personal data with Facebook, Google, Clever and whomever else they please – through an open-ended consent form that they have demanded parents sign.  A copy of the consent form is here.   

I have never seen such a wholesale demand from any company for personal student data, and can imagine many ways it could be abused.  Among other things, Summit/Facebook claims they will have the right to use the personal data “to improve their products and services,” to “conduct surveys, studies” and “perform any other activities requested by the school. ”  

 Here is an excerpt:  

 Summit may collect information that you provide or your child provides directly to Summit, such as contact information, coursework, testing, and grades. Summit also may collect information automatically from browsers, computers, and devices (such as information from cookies and browser and device identifiers in order to remember your preferences)..... Summit may use your child’s information to conduct surveys and studies; develop new features, products, and services; and otherwise as requested by your school or consistent with your consent. ... Summit also may disclose information to third-party service providers and partners as directed or authorized by the school. For example, Summit uses Clever, Facebook, and Google to help develop and improve the personalized learning plan software or to provide related educational services on Summit’s behalf. 

They claim they won’t use the child's personal data for targeted ads (as would be banned anyway in the CA law called SOPIPA) but this is among the only restriction. They say they can sell the data "in connection with a corporate transaction, such as the sale of our Services, a merger, consolidation, asset sale." The one-sided Terms of Service is here; the Privacy Policy is here. 

The Summit platform has never been independently vetted for security protections – or shown to yield any educational benefits, and I believe is a very radical way to outsource instruction and student data to private companies. 

Other reasons that teachers as well as parents should be concerned:

The Terms of Service claims the right to use the intellectual property of teachers in these schools,

including course assignments, etc. and even student work without any recompense: “You Grant Us a non--‐exclusive, perpetual, transferable, sub--‐licensable, royalty--‐free, worldwide License to use content that you post on or in connection with the Services in any manner, media, form, and modes of uses, now known or later developed.”

--Though I’m not an attorney, the Terms of Service seems to explicitly and repeatedly waive any liability  that Summit or FB or any of its partners may have for protecting the data against breaches, complying with state or federal law,  or abiding by their own Terms of Service; 

-- As the Washington Post article points out, the TOS would force any school or party to the agreement (including teachers) to give up their right to sue in court if they believe their rights or the law has been violated, and limits the dispute to binding arbitration in San Mateo CA - in the midst of Silicon Valley, where Facebook and Google presumably call the shots.  This is the same sort of abuse of consumer rights that that banks and credit card companies have included in their TOS and that the federal Consumer Financial Protection Bureau is now trying to ban.

--The CEO of Summit charters, Diane Tavenner, is also the head of the board of the California Charter School Association, which has aggressively tried to get pro-privatization allies elected to California school boards and state office, and has lobbied against any real regulations or oversight to curb charter school abuses in that state.  

- -  Summit says they won't sign individual contracts with school districts or schools, for the    following ostensible reasons, and suggests a legal loophole for states and districts that require such contracts:

Summit Public Schools is unable to sign contracts, MOUs, or other legal documents from other districts, CMOs, or individual schools. Straying from our Summit Partnership contracts would add immeasurable risk to our organization as we are unable to acquire third party validation on different contracts in the way that we did for our own participation agreement. It would not be legally sound for us to enter into two legal contracts with two sets of potentially conflicting commitments for one program.

Some districts that have policies where all third party vendors need to sign one designated contract were able to bypass that requirement given the status of Summit Public Schools as an educational organization rather than a vendor and the nature of the partnership as a free exchange of ideas and services rather than a paid service relationship.

And then they add – presumably to assuage the fears of parents or school administrators:

In order to ensure that our legal agreement meets the high quality demanded by school organizations across the U.S., Summit Public Schools has gone the extra mile to work with one of the best legal teams in the country to draft this agreement. We worked with Jules Polonetsky - CEO of the Future of Privacy Forum, a Washington, D.C.-based think tank that seeks to advance responsible data practices - and his team to review our privacy policies and provide his 3rd party stamp of approval. Straying from the language in our participation agreement would add risk as we are unable to also acquire third party validation on different contracts.

        What they don't reveal is that the Future of Privacy Forum is largely funded by the technology industry and the Gates Foundation, and Polonetsky was a big supporter of inBloom.  (Nevertheless, the sample contract they apparently offered to Kentucky schools did not include the binding arbitration clause, though it limits Summit's liability to $10,000.) 

For these and other reasons, I think parents and students should be VERY concerned.  

In my view and that of many other parents, the explosion of ed tech and the outsourcing of student personal data to private corporations without restriction, like this current Summit/Facebook venture, is as risky for students and teachers as the privatization of public education through charter school expansion.  In this case, the risk is multiplied, since the data is going straight into the hands of a powerful charter school CEO - closely linked to Gates, Zuckerberg and Laurene Powell Jobs, among the three wealthiest plutocrats on the planet.   

Gates has praised Summit to the skies, has given the chain $11 million, and has made special efforts to get it ensconced in his state of Washington; Zuckerberg is obviously closely entrenched in this initiative, and Laurene Powell Jobs has just granted the chain $10 million to launch a new charter school in Oakland.  

I sent the following list of questions to Summit at info@summitbasecamp.org nine days ago, but have received no response.  Others -- especially parents at these schools and/or privacy advocates -- might like to send their own questions or resend mine as well.  And if you are a parent or a teacher at one of these schools, please contact me ASAP at leonie@classsizematters.org  Thanks! Leonie

Questions for Summit:

1.      1. What is Summit’s definition of “reasonable and comprehensive data protection and security protocols to protect student data”?  What does that specifically include in terms of encryption, independent audits, security training, etc?  And where is that in writing?

2.     2.   If my child’s data does breach, what rights would I have as a parent to secure damages?

3.     3.  Does Summit claim unlimited rights to share or utilize my child’s homework and intellectual property without notice or compensation that they are claiming with teacher work in the TOS?

4.      4. Can Summit specifically itemize the companies/organizations that they will share my child’s data with, aside from those mentioned below? 

5.      5.  Are each of these third parties barred from making further redisclosures of my child’s data?

6.      6.  Are each of these third parties, and any other organizations or companies or individuals they redisclose to, legally required to abide by the same restrictions as listed under your TOS and PP, including being prevented from using targeted or non-targeted advertising, and/or selling of data, and using the same security protections?

7.       7. Does Summit promise to inform parents over the course of the year all the additional third parties the company plans to disclose my child’s data to?

8.        8. What is the comprehensive list of personal data Summit is collecting and potentially sharing from my child?  You mention a limited list below, but does it also include my child’s homework, grades, test scores, economic status, disability, English proficiency status and/or race as well? 

9.      9.  The TOS mentions survey data.  Is there any personal data from my child that Summit promises NOT to collect via a survey or otherwise?  Will parents have the right to see these surveys before they are given and opt out of them, or does signing this consent form basically mean a parent is giving up all their rights under the PPRA?

      10.  Why can’t Summit simply give the software platform to schools to use if it is beneficial, along with links to instructional materials, rather than demand as “payment” in the form of all the student information as well?

1   11. Do you promise not to use the information gained to market products directly to students and/or their parents, and are all your partners and/or those they disclose the information to barred from doing so as well?

1   12. The PP says you will use my child’s personal data to develop new educational “products” – what does that mean?  Why can’t you use de-identified data for this purpose?

     13. It also says you will use this data to “communicate with students, parents, and other users.”  What does that mean? What kind of communications will you engage in with my child or with me?

     14. The PP states a parent can “review, correct or have deleted certain personal information”.  Which kind of personal information can I delete, how will I be able to do that and will that stop my child from using the platform?

1    15. The PP also says you will share the data with anyone “otherwise directed or authorized by the school.”  What does that mean? Does my signing a consent form mean that the school can authorize to share this information with ANYONE else, without specifying the sort of third party, for what reason, or without limitation, without informing me or asking for my further consent?

1   16. It says it will send notice of proposed changes to the PP ahead of time to the participating schools; why not parents if you have their contact info?  Shouldn’t they hear this directly from you and immediately if you are considering changes?

     17.  Does Summit consider this parent consent form to mean that parents are waiving the privacy rights of their children under all three federal student privacy laws, including FERPA, COPPA and PPRA?

1  18. The PP says that “FERPA permits schools to share students' information in certain circumstances, including where the school has gotten a parent's' consent or where the organization receiving the student data operates as a “school official.” Summit Public Schools operates as a “school official” consistent with the Department of Education's guidance under FERPA.”  If this is true, why does Summit need to ask for parental consent?  What additional rights does my consent afford Summit that you would not have without consent in terms of the collection, use and disclosure of a student’s personal information?

     19. Summit says that “Participating schools and individual teachers own, and are responsible for, student data provided through the Summit Personalized Learning Platform.” Why don’t students own their own data?

      20. This raises another related question: the Summit Privacy Policy and Terms of Service grants schools and teachers some rights (however limited.) What rights do parents and students have under these conditions?

      21. The TOS says that if schools believe Summit has violated its promises or complied with the law, instead of suing they must submit to binding arbitration in San Mateo CA and are barred from filing class action complaints.  This type of provision has been heavily criticized when banks and credit card companies have included in their consumer agreements, and the Consumer Financial Protection Board is considering restricting their use. Why is this clause any more acceptable in your TOS?

      22. What legal recourse do schools, teachers or parents have if Summit violates the law or its TOS, for example if Summit decides to sell or give away or carelessly store the data given that the TOS  says “UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION, NEGLIGENCE, WILL SUMMIT, ITS AFFILIATES, OR ANY PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES BE LIABLE FOR DAMAGES OR LOSSES” in any case?

      23. In yet another clause of the TOS, Summit requires schools to “agree to indemnify, hold harmless, and defend Summit, and its affiliates, licensors, and service providers, and each of their respective officers, directors, contractors, agents…etc.et. against any and all demands, claims, liabilities, judgements, fines, interest, penalties… etc. including attorneys’ fees etc.” Why the need for so many layers of self-protection and disclaimers of liability?

     24.  What rights does a parent have in general if Summit violates the TOS or the PP?  Are they bound to the binding arbitration clause in the TOS that the school must agree to?

     25.  In another FAQ here, Summit says that it will not sign contracts or written agreements with individual school districts, and if the state requires this under law, districts or schools should try to “bypass that requirement" by claiming that a) Summit is not subject to the law because it is not a “vendor” but an “educational organization” and b) that they should not have to sign a contract because of the “nature of the partnership as a free exchange of ideas and services rather than a paid service relationship.”  But if you are gaining potential economic and programmatic benefits from your access to student data, including using it to build new and better “products” as the TOS states, why isn’t this a commercial relationship bound by state law?  And if this relationship is truly a “partnership” with a free exchange of ideas, why is the TOS so one-sided and seems to protect Summit from any possible liability, and not the school?