Pushing Civic Tech Beyond Its Comfort Zone

Originally published in the Fall 2015 print issue of The American Prospect.
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You’re walking down the street in New Haven, Connecticut, texting on your smartphone. As you turn a corner, you notice a big pothole in the middle of the road. Skimming through your cell, you log into SeeClickFix, an app for citizens to report non-emergency issues to local government. Snapping a photo of the pothole and geo-coding the picture with your GPS coordinates, you submit the report and continue walking, confident the relevant agency will tend to the matter. Other SeeClickFix users can also see that a new pothole has been reported, and where.

Potholes have symbolized the everyday problems that citizens call upon local and even national politicians to address. Senator Al D’Amato of New York was nicknamed “Senator Pothole” because of his reputation for tending to his constituents’ needs. It was a compliment—it meant he was available, responsive, and got things done, at least the small, concrete things his constituents cared about. But when it comes to taking action on local civic problems, there are now options besides contacting a public official. Tools like SeeClickFix allow citizens to gather local information and organize collectively based on what they learn. “If you as an elected official have established your power on the sole exclusive rights to that information, then our app is not something you’re going to be in love with,” says Ben Berkowitz, SeeClickFix’s CEO and co-founder.

SeeClickFix offers some interesting opportunities for citizens, such as allowing them to monitor whether the government has dealt with their concerns and “reopening” the complaint if they dislike how the government responded. “There’s an element of shifting power that’s baked into the code of SeeClickFix that makes it more of a service for people and less of a service for bureaucrats,” says Micah Sifry, co-founder of Personal Democracy Media, which focuses on intersections between politics and technology. SeeClickFix also provides useful services for governments—Jennifer Pugh, who works in the chief administrator’s office in the New Haven local government, said that her office’s adoption of SeeClickFix technology has allowed it to organize work orders more systematically. She hopes that in a few years, when a greater number of departments start to use SeeClickFix, they will be able to conduct new kinds of citywide analysis.

Moreover, in theory, SeeClickFix technology should one day allow journalists, political opponents, and independent groups to publish data comparing the responsiveness and performance of local governments, allowing citizens to see how well theirs stacks up in relation to others.

Some, perhaps hoping to stir up excitement, inflate the case for new technology—heralding it as the savior of government accountability and promoter of a more just democracy. “With these digital tools, citizens and their officials can revolutionize local government, making it more responsive, transparent, and cost-effective than it ever has been,” write Stephen Goldsmith and Susan Crawford in their book, The Responsive City: Engaging Communities through Data-Smart Governance. That exaggerated rhetoric about “revolutionizing” government shouldn’t be taken seriously; it only sets up people for later disappointment. But, in a more modest but still significant way, tools like SeeClickFix can help improve the accountability and performance of government—local government in particular. Accountability, however, is ultimately a political matter, and civic tech cannot simply steer clear of politics in the belief that technology will solve problems on its own.

The Obama Tech Letdown

Following his savvy 2008 campaign, Obama entered the White House with great expectations from the tech world. He was “the first Internet president,” as Omar Wasow, co-founder of BlackPlanet.com and now an assistant professor of politics at Princeton, called him. During George W. Bush’s second term, open-government advocates had begun to lay the groundwork for increasing transparency in the next administration, whichever party won the 2008 election. Their recommendations were just being finalized at the time of Obama’s victory. “We interacted quite a bit with the transition team and really conveyed to them that this was a bipartisan area the administration could take a lead on,” said Sean Moulton, the open government program manager at the Project on Government Oversight (POGO).

In his inaugural address, Obama declared that “those of us who manage the public’s dollars” will “do our business in the light of day, because only then can we restore the vital trust between a people and their government.” A day later, he issued two memoranda, one calling for greater government compliance with Freedom of Information Act (FOIA) requests, and another that committed his administration to bring about “an unprecedented level of openness in government.”

These memos sent expectations soaring in the worlds of civic tech and open data. Silicon Valley perked up its ears. “When the president of the United States says something like that, it becomes a big deal and a big business,” says Tiago Peixoto, an applied political scientist who researches democracy’s relationship to technology. We’ve seen the rise of for-profit companies—like SeeClickFix—that focus on improving government service delivery. “Civic hackathons” began to crop up in cities across the country and even at the White House, encouraging coders, entrepreneurs, and others to figure out ways to use technology for civic ends.

“[Obama’s administration] was the first time we ever had a U.S. chief information officer, a U.S. chief technology officer, and a U.S. chief data officer,” says Gary Bass, founder of the Center for Effective Government (originally called OMB Watch), a nonprofit organization committed to public accountability, transparency, and citizen participation. Suddenly government leaders were discussing how they could recruit top tech talent. The culture of the federal government seemed to be shifting.

But several years later, public trust in government has declined to historic lows. Much of that decline reflects the general hostility of conservatives to the Obama administration, not to its information policies. But even for liberals, the promise of an “open government” seems elusive. A 2015 Pew survey found that just 5 percent of Americans say the federal government shares its data very effectively. The civic-tech community, which had hoped to facilitate a democratic revival, is also puzzling over its lack of success. “I think civic tech started getting trendy with Obama, and it’s still trendy, but we haven’t had as big of an impact as we expected,” said Dan O’Neil, the executive director of the Smart Chicago Collaborative and one of civic tech’s early pioneers.

Local Experiments, New Tools

Still, there are plenty of examples of local governments experimenting with technology over the past few years to help increase its responsiveness and reduce government costs. With improved data analysis, New York City was better able to anticipate which buildings were at risk of catching on fire. Boston was able to speed up the time it took to deliver new recycling bins on request. Many companies, organizations, and individuals have also started leveraging government data to develop their own civic tools, from Waze, a crowd-sourced traffic-data company that provides users with timely and accurate travel information, to Nextdoor, a tool that uses census data to create private social networks for local neighbors to interact.

Apps like SeeClickFix offer a greater degree of civic opportunity than apps that allow you to track your packages in the mail or those that notify you when the next bus is expected to arrive. SeeClickFix users can earn “civic points” for utilizing different features, such as commenting on other people’s reports. Through the app’s “thanks” feature, citizens can send messages of gratitude to the government agency that addressed their complaint. Ideally these types of features can help to increase trust between citizens and government, an important ingredient for democratic participation.

One of SeeClickFix’s most admired features allows users to “reopen” a report they’ve filed if they’re not satisfied with how the government responded to it. People have praised the technology for empowering citizens with the last word.

I asked Jennifer Pugh, of the New Haven government, if there have ever been times when citizens reopen requests that her colleagues have closed, and she told me that it happened all the time. In many cases, she explains, the government is not able to provide what citizens are expecting, or the government does not agree with what an individual complainant has asked for. “We don’t have a lot of resources; we’re limited on money,” says Pugh. So New Haven often closes out requests on SeeClickFix, and if people reopen them, officials usually just leave them there. “The downside is that it looks like there is a lot of open issues out there, but in fact they’ve been dealt with. We just can’t come to an agreement about how to address it,” she says.

When citizens file complaints through SeeClickFix, there’s no guarantee that the government will do what the citizen has requested. These tech tools do not eliminate some of the basic challenges facing governments, like determining how to spend a limited budget of resources. But what SeeClickFix does offer is an easier way to raise issues, and a means for the public to better understand which requests have been addressed. This in turn creates new opportunities for activists and journalists to press for details on the government’s decision-making process. Why didn’t residents in this part of town have their pothole fixed? Why did you decline to put in the speed bump I requested when I am upset by the fast traffic on my block? Why did so many people from all over the city report vandalism on the same day? Such questions have become easier for the public to ask in the age of SeeClickFix.

Peixoto, who has been studying the intersections of democracy and technology for the past 14 years, thinks that when newcomers flooded the civic-tech space at the start of Obama’s first term, “there was no way to ensure that the critical mass of people would absorb the lessons we had already learned by then.” This has led to what Peixoto sees as “some naïve assumptions” repeated inside new civic-tech circles. Specifically, he points out that many civic-tech leaders overestimate what technology can do on its own. Some have encouraged technologists to dismiss the government entirely, or just treat it as a platform from which to launch civic projects independently. But researchers have learned that civic technology generally carries a far greater impact when it works in conjunction with the government, like SeeClickFix, rather than on its own. SeeClickFix’s government partnership helps to explain its steady growth and impact.

Why Civic Tech Isn’t Easy

It’s understandable why some civic-tech leaders feel unenthusiastic about dealing with the government. In Silicon Valley, technologists are encouraged to “fail fast, fail often.” But within the public sector, taxpayers don’t necessarily want their leaders taking big costly risks, and politicians in turn fear the backlash if innovations fail. The cultures are different.

There is also a talent pipeline problem—government simply does not have enough people coming to work for it who possess advanced technological skills. “You see so many agencies with so little knowledge and capacity around the technology, they don’t even know what they want or how to communicate with the contractors they hire,” said Moulton. The government bidding process itself is also notoriously difficult, precluding many smaller, and perhaps more talented, companies from competing for contracts.

Together, these issues create a government tech situation that is both expensive and dysfunctional. The best-known recent example was the disastrous rollout of the federal health insurance exchange website, Healthcare.gov. It not only went far over budget—originally estimated to cost $500 million, it hit $1.7 billion by its initial rollout in 2013, and exceeded $2 billion a year later—but the website also just didn’t work well at all. It continually crashed, stalled, and left customers unable to purchase health-care plans. Of course, once the website did start performing better later on, the news media had little interest in reporting on its successes.

In many ways, the embarrassing Healthcare.gov scandal served as a turning point for the Obama administration. “It was only after that that the alarm bell finally reached the Oval Office,” says Sifry. “This wasn’t working. You can’t just make good speeches. You also have to find good people who can deliver on those promises.” Since then, far more serious attention has been paid to federal information technology and government procurement.

In 2014, the administration created two new agencies in the executive branch—18F in the General Services Administration and the U.S. Digital Service (USDS) in the White House—both designed to improve the government’s technological capacity. The government has been trying to improve procurement issues for decades, but the tools and methods available today are different.

“From open-source tools to the refinement of methodologies like human-centered design and agile development, these are all things you wouldn’t have heard of two decades ago,” says Aaron Snow, the executive director of 18F. “These are all things that make it actually possible for us to accelerate the rate [at which] government improves its technological capacity.” While USDS technologists consult with agencies to figure out how to improve their work, the staff at 18F helps federal agencies become savvier about procurement. Speaking at the Personal Democracy Forum this past June—an annual conference for the civic-tech community—Haley Van Dyck, USDS’s co-founder, said her office has been deploying “hyper-networked teams across government” to disrupt and transform tech practices and agency cultures. And though 18F and USDS work specifically with federal agencies, they share their code freely online so that local governments can reuse and repurpose it for their own needs. At times, federal officials will use code first developed within local city agencies, too.

From Open Data to Accountability

In 2012, David Robinson and Harlan Yu, two technology consultants and open-government data theorists, published a law review article noting that the term “open government”—which was first used in the 1950s during debates that led to the passage of the Freedom of Information Act—has now blurred considerably and confusingly with the “open data” movement. “Today, a regime can call itself ‘open’ if it builds the right kind of website—even if it does not become more accountable,” they point out. Consequently, Yu and Robinson urge the public to distinguish more clearly between efforts to hold governments accountable and technology that enhances government services.

Tiago Peixoto built off of this analysis in an essay published one year later. For there to be government accountability, he argues, four things need to happen. First, government information must be disclosed—this is where open data would come in. Second, this disclosed information must reach members of its intended public. Third, citizens—not necessarily everyone, but a constituency large enough to influence government—must be able to understand the disclosed information and react to it. Fourth and finally, public officials need to respond to the public’s reactions or be sanctioned by the public through institutional means.

So with this in mind, can tools like SeeClickFix be used to create a more accountable government? In some cases, increased public transparency now exists within areas that were previously more opaque. That’s important.SeeClickFix users can compare how long they’ve been waiting for a streetlamp bulb to be replaced or for a pothole to be fixed. They can compare which parts of town had their requests answered more quickly. “It’s helpful to have a record of needs that are systematic and easy to measure,” says Robinson. News organizations can also launch investigations when reporters or watchdog groups notice that citizen complaints are going ignored.

Greg LeRoy, executive director of Good Jobs First, a watchdog organization that seeks to promote accountability for public programs subsidizing economic development, says he first understood how crucial transparency was for accountability back in the late 1970s, when he worked for National People’s Action (NPA), a grassroots social justice network. At the time, NPA pushed for the passage of the Home Mortgage Disclosure Act (1975) and the Community Reinvestment Act (1977). “There were allegations that banks were redlining communities of color, but there was no real evidence [before these laws were enacted] to prove it,” he said.

Technology on its own cannot get the government to disclose information, but it can prove extremely valuable for those who want to understand what is released. While LeRoy’s organization has been around since 1998, he says the rise of the Internet and data technology “has everything to do” with how his organization has changed over time. All states have their subsidy information in electronic form; they could share much or all of it online if they wanted to. The first state to do so, in small amounts, was Ohio in 1999. But governments have shown that without public pressure they will generally not disclose information or will release just small amounts of information to mollify critics. Good Jobs First has tried to overcome this resistance by conducting research, promoting public discussion, and encouraging activists to push for improved transparency laws. In 2007, they published their first national report card study—“The State of Disclosure.” By that time, 23 states had put some amount of subsidy information online. Three years later, when their next study was published, the number had increased to 37.

But “the data that states do put online,” LeRoy says, can amount to a “Tower of Babel.” States often hide information in obscure appendices, upload contracts in non-searchable PDFs, or publish audits that are impenetrable. As a result, Good Jobs First recognized that “transparency” could mean very little, in practice. But this is where new civic technology developed by third-party organizations has been invaluable. Good Jobs First was able to launch its comprehensive Subsidy Tracker tool in 2010 by compiling and organizing more than 100,000 records from across the country into one unified searchable database and getting additional subsidy program information through FOIA requests. “Technology has definitely been at the core of how we improve our data and make it more accessible for average citizens to understand,” LeRoy says.

The Center for Responsive Politics, another watchdog organization that focuses on money in politics, knows its ultimate objective is to move people into action—step three of Piexoto’s four-step process. “We use technology to provide information in lots of different ways,” explains Sheila Krumholz, the center’s executive director, because the group recognizes that presenting information in just one format won’t resonate with enough people. Krumholz thinks the organization has played a key role in educating citizens about the impact of money in politics, but says its challenge now is to figure out how to design the kind of “aha” moments that inspire people to act on what they learn, rather than simply tune out and disengage.

But inspiring people to act inevitably has political implications. Eric Liu, the CEO of Citizen University—a group that works with leaders, activists, and practitioners around issues of citizenship and organizing—says it’s not enough to make government more efficient. He encourages civic-tech leaders to reckon more with politics, power, and inequality. While it’s great to have an app that can help you find out when the next bus is coming, it would be even better, he argues, if you could activate the smarts and skills of people within civic tech to help push city leaders to develop a stronger public transportation system.

“Civic tech is excellent at transparency, civic tech is excellent at efficiency, civic tech is excellent at creating a sense of community,” said Liu in a speech at the Personal Democracy Forum this past June. “Civic tech is excellent at a lot of dimensions of what you might think of as customer service.”

The civic-tech community could help Americans create not only a more efficient government, but also a more politically accountable and fair one. Doing that would require the community to venture into political territory that it’s largely avoided up to this point. But if civic tech is going to make a big impact, there is no turning away from politics. It’s something investigative journalists have long understood: Making people with power uncomfortable is part of the job. It’s part of the job of civic tech, too.

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A New Course: Larry Hogan wants to change Maryland’s unique charter school laws and bring in more charters, but will kids suffer?

Originally published in Baltimore City Paper on August 5th, 2015.
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Baltimore City Paper cover

Baltimore City Paper cover story

At the end of 2014, just weeks after Larry Hogan won a surprise victory in the gubernatorial race, the governor-elect announced that he would push to expand Maryland charter schools once in office.

“We shouldn’t be last in the nation in charter schools,” Hogan declared—referring to Maryland’s spot in the state ranking system designed by the National Alliance for Public Charter Schools (NAPCS), an advocacy organization that promotes charter schools around the country. According to NAPCS, Maryland has the nation’s “worst” charter law. The Baltimore Sun editorial board, echoing NAPCS, has said Maryland boasts one of the “weakest” charter laws in the United States.

In late February and early March, legislators in Annapolis listened to testimony related to charter reform bills that Gov. Hogan introduced in the House and Senate. Supported by the Hogan administration, a coalition of charter school operators, and national education-reform advocates, the bills met fervent opposition from teachers, principals, and community members.

“I don’t care what the National Alliance for Public Charter Schools, a lobbying group out of Washington, D.C., has to say about the charter school law in Maryland or where they rank Maryland relative to their own biased standards. Neither should you,” testified Megan Miskowski, a speech language pathologist at Patterson Park Public Charter School. It’s Maryland’s strong law, she argued, that explains why Maryland charters have never wrought the level of fraud and abuse so prevalent in places such as Minnesota and Louisiana—states that receive high marks from NAPCS. “Who are they to define what is best for Maryland children?” Miskowski asked. “We do not answer to them.”

The Maryland Charter School Act passed in 2003 and the first state charter schools opened their doors in 2005. A decade later roughly 18,000 students attend 47 Maryland charters—34 of them concentrated in Baltimore City. A version of the Public Charter School Improvement Act eventually passed, but it was substantially watered down from Hogan’s original proposal, and many believe he’ll push a stronger law again next year. The heart of the debate centers on competing visions for the future of public education, and whether one believes Maryland has the best charter law in the country or the worst.

The publicly funded but independently managed schools known as charters have grown significantly since the first one opened in Minnesota 23 years ago. Today more than 6,700 charters exist in 42 states and Washington, D.C. and their numbers are climbing. Albert Shanker, then-president of the American Federation of Teachers (AFT), first proposed the charter school idea in 1988; the influential union leader imagined a new kind of school that could serve as a laboratory for innovative and experimental education practices. The hope was not only to serve kids within charters who might benefit from alternative educational models, but also to carry newly discovered best practices back into traditional schools for all students to enjoy. In Shanker’s vision, charter teachers would still be unionized district employees, but certain labor regulations would be relaxed to promote greater innovation.

Maryland’s charter culture sets it apart from most other states in several ways. First, under the law all Maryland charter teachers are considered public school employees and represented under their district-wide collective bargaining unit. While this actually most closely resembles what Shanker had imagined, few states today adopt this particular model. According to the Center for Education Reform (CER), just 7 percent of all charter school teachers nationwide are unionized.

Another distinctive characteristic of Maryland charters has been a general commitment to innovate within the district, as opposed to outside of it. In other states, the law may allow for multiple charter authorizers, such as churches, universities, or nonprofits. In Maryland, however, only the local school board can authorize charter schools. “I’d say the strong desire [of Maryland charters] to work within the school district is fairly unique,” says Joceyln Kehl of the Maryland Alliance of Public Charter Schools, a newly formed coalition of charter operators around the state. “Maryland is hugely pro-union and Democratic, so that’s just our context,” she adds.

Additionally, Maryland charters must comply with a greater number of state and local regulations than charter schools in other states. While detractors of Maryland’s law argue that this creates an inflexible environment for the independent schools to operate in, supporters point out that Maryland has not had any of the kinds of problems related to fraud, abuse, and mismanagement that charter schools in states with decreased regulation have had. “It is true that Maryland charter school law provides more oversight than many other states,” testified Deborah Apple, a charter school teacher at the Baltimore-based Wolfe Street Academy. “It is also true, however, that our charter school system is more effective than most.”

A stronger level of oversight, a close relationship with the school district, and unionized charter teachers illustrate the uniqueness of Old Line State charters. The vast majority of schools are considered “mom and pop” charters, meaning parents or former local educators founded them, as opposed to some of the larger national charter management organizations (CMOs) that have developed presences in other cities. According to an Abell Foundation report released this year, many high-performing CMOs have expressed reticence or disinterest in coming to Maryland given the conditions in which they’d have to operate. While the Maryland charter law has facilitated the growth of strong schools with little to no fiscal and academic issues, the question is whether such growth is sufficient, and whether the state’s law should change in order to entice more CMOs to expand into Maryland.

Baltimore’s 34 charter schools educate 13,000 of the district’s 84,000 students. Bobbi Macdonald, co- founder of the City Neighbors Charter School, is one of Charm City’s veteran operators. City Neighbors was one of the first charters to open up in 2005, and since then Macdonald has opened two more schools. Reflecting on the evolving dynamics between Baltimore charter operators and the district, Macdonald describes years of intentional relationship building. “I don’t believe that school systems are made out of steel, they’re made out of people,” she says.

In 2004, after the charter law passed and before the first schools opened, Baltimore’s new charter operators formed a coalition to organize and advocate for their collective interests. This coalition grew increasingly formalized as the years went on. “The work of the coalition became really focused on defending our autonomy and the rights of children in charter schools,” says Macdonald, who served as the coalition’s co-chair for the first six years.

Many charter operators spoke favorably, even nostalgically, of Dr. Andrés Alonso’s six-year tenure as city superintendent, which ended at the end of 2012-2013 academic year. “Dr. Alonso had a clear vision of wanting to provide a portfolio of school options for families, and to create opportunities for innovation and then replicate those practices,” says Allison Shecter, the founder of the Baltimore Montessori Public Charter School, one of the city’s most popular charters. “I think when Dr. Alonso was here we had a really strong relationship and participated in a lot of ways on many different levels,” says Macdonald.

Since Alonso’s departure, the relationship between charter operators and the district has grown more strained. “I’d say it’s a challenging relationship. It’s not a partnership unfortunately,” Shecter says. “We’d like it to be a partnership but in order for it to be a partnership there needs to be consistent and ongoing communication back and forth around policies that may impact charters.” Many operators say they feel the district is neither accountable nor transparent, which fuels growing levels of distrust.

One issue charter operators repeatedly raise is that they believe the district short-changes them when it comes to per-pupil funding. Under state law, the district must provide “commensurate” funding between traditional schools and charters. Currently, the district allocates $7,300 per traditional school student, and $9,400 per charter student—which is supposed to take into account that Maryland charters have to pay for the cost of their facilities, programming, salaries, and other school-level costs, which the district pays for in traditional schools. However, the formula that the district uses to come up with these amounts is unclear, and operators are convinced that what they’re getting is too low. Charter operators believe that they should be getting closer to $14,000 per pupil. Debates around these dollar amounts grow very charged.

Not everyone at charters agrees the district is shirking its funding responsibilities. “Charters still receive more per pupil, even after those extra costs are covered,” says Matthew Hornbeck, the principal at Hampstead Hill Academy, a charter located just south of Patterson Park. “Everyone, with the exception of some of the charter operators, knows that.” Hornbeck, who has served as his school’s principal for 12 years, has been outspoken about what he sees as a district funding formula that unfairly favors charters.

“I was a charter operator and I absolutely knew we were getting more than traditional public schools,” adds Helen Atkinson, the executive director of Teachers’ Democracy Project, a local organization that helps teachers engage in public policy and develop more social justice curricula.

Jon McGill, the director of academic affairs for the Baltimore Curriculum Project, the city’s largest charter operator, describes the relationship between charters and the school district headquarters on North Avenue as “overall harmonious” but says he does wish the district would be more transparent about how about how exactly it spends its slice of per-pupil funding. He thinks charters “lose the PR game” because the public sees them as always asking for more money. One reason the funding issues get so heated, McGill suggests, is because some operators have taken huge personal risks to open charter schools, and feel they need more reassurance that the district truly supports their efforts. “Some people have 30-year mortgages to worry about,” he says.

While for the past decade the story of Baltimore charters has mostly been an intra-district struggle, Gov. Hogan’s rise to power signified a turning point for the Maryland school-choice movement.

The legislation Hogan introduced would have dramatically changed the charter law passed in 2003. His proposals included provisions to exempt charter school employees from the district bargaining unit, as well as from many state and local requirements such as teacher certification. Hogan’s bill would have enabled charter schools to compete against traditional schools for state public construction money, and the bill would have required districts to explicitly define “commensurate funding” to mean that charters should get 98 percent of the per-pupil amount that traditional public school students receive, leaving 2 percent left over for district administrative expenditures.

“It did take us by surprise,” says Kehl. “As a charter sector, we were not expecting legislation this year, and we’re grateful that Governor Hogan finally wanted to cast an eye on the charter sector.” While charter operators around the state met with legislators and held school meetings to discuss why they supported Hogan’s bill, Kehl acknowledges that their advocacy “wasn’t as robust an effort had we been really prepared for it.”

Once news of Hogan’s charter bill went public, Maryland charter teachers began to organize together in new ways. In Baltimore, teachers convened and decided to form the Baltimore Charter School Teacher Coalition. Educators broke up into committees to strategize and implement an organized political response to the bill.

Corey Gaber, a sixth-grade literacy teacher at Southwest Baltimore Charter School who was active in the coalition, says part of the reason they formed their group was because they were dissatisfied with the pace and quality of the Baltimore Teachers Union’s (BTU) response. “We felt like we needed to reach out and inform teachers about what was going on and we didn’t feel like the union was doing it effectively,” he says. Gaber acknowledges that among Baltimore charter teachers there exists a “constant contradiction of feelings”—in some ways they are dissatisfied with the current union leadership, but on the other hand, teachers are proud to be being unionized district employees and deeply value their protections. With fellow charter teacher Kristine Sieloff, Gaber wrote an Op-Alt for City Paper (“The injustice of a two-tiered education system in Baltimore City,” March 31) and Gaber created and helped to circulate a petition that garnered hundreds of signatures from both charter and traditional public school teachers.

“The interests of traditional teachers in charters and public are exactly the same right now,” says McGill, who thinks the proposed bill would have created deep divisions between Baltimore educators.

The BTU helped circulate another petition for charter teachers and charter educational support personnel, roughly 740 people in total, and more than 90 percent of eligible petitioners signed. “I spoke with every teacher I know, teachers were universally against [the legislation],” Gaber says.

In addition to local educators who worried about losing their collective bargaining rights and allowing non-certified teachers to work with kids, other leaders pushed back against what they saw as a deeply inequitable funding structure embedded into Hogan’s legislation.

“Charter advocates rely on the premise that as money flows from a regular school to a charter school, the costs of the regular school go down proportionately. Sounds good; it’s just not true,” wrote David W. Hornbeck in a Baltimore Sun op-ed published in February. Hornbeck “recommended the approval of more than 30 charter schools” while serving as Philadelphia’s superintendent of schools from 1994 to 2000, and he now believes he made a grave mistake. Hornbeck, who also served as superintendent of Maryland schools from 1976 to 1988 (and is the father of Hampstead Hill principal Matt Hornbeck), pointed out that Pennsylvania’s charter law is ranked much higher than Maryland’s and “yet its charter growth is contributing significantly to a funding crisis that includes draconian cuts to teachers, nurses, arts, music and counselors in Philadelphia.”

Bebe Verdery, the director of the Maryland ACLU Education Reform Project, also submitted testimony against the bill, arguing that the proposed funding formula would result in severe cuts to traditional schools. “Simply put, students without any special needs would get funding the state formula intended for others,” she said. Verdery also objected to a provision that would have allowed public capital repair funds to go toward private buildings that housed charter schools, saying, “this would further strain an already insufficient pool of state resources for addressing the state’s $15 billion school repair and construction backlog.”

Hogan’s legislation said “commensurate funding” should mean that charters get 98 percent of what traditional public schools receive because a 2005 State Board of Education ruling determined that districts needed only 2 percent of per-pupil funding to cover central administrative costs. But when the Department of Legislative Services (DLS) surveyed local school systems later on, it found that administrative expenditures make up closer to 10-14 percent of per-pupil spending. Critics argued that if 98 percent were legally guaranteed for charters, but necessary administrative work still had to be done, then money would be taken from traditional public school students, potentially leading to increased class sizes, special educators with enormous case loads, or cuts to after- school programming, gym, and art.

Local charter operators insisted that their goal was not to bankrupt the district, but simply to fight for parity. “We believe strongly that we can achieve this without harming funding for other schools,” testified Ed Rutkowski, the executive director of Patterson Park Public Charter School.

The watered-­down bill that Hogan ultimately signed was a grassroots victory for some, and a major disappointment for others. The Center for Education Reform, which hired several lobbyists to push for the bill’s passage, was so dismayed with the final result that it actually urged the governor to veto it, insisting that this would be a step back for Maryland school choice, not one forward.

The final bill ended up removing mostly all provisions that had generated controversy. It grants greater autonomy to charters that have demonstrated five years of success, and it provides for increased flexibility with student enrollment. The bill also authorizes the Maryland State Department of Education (MSDE) and the DLS to complete a study by the end of October 2016 to determine what a more appropriate figure should be for districts when it comes to commensurate funding.

“The law that passed was more subtle and more evolutionary rather than revolutionary,” said Hampstead Hill’s Hornbeck. “It did not trash a good law, like the governor’s proposal tried to do.”

Given that the governor still had support from MarylandCAN, a pro-charter advocacy organization that helped to craft the original legislation, Hogan went ahead and signed the bill into law. It’s an imperfect bill, but it creates “the pathway” to expand charters and it grants more flexibility to existing ones, said Keiffer J. Mitchell Jr., Hogan’s special adviser on charter schools.

“As the state with the most restrictive charter law in the country, these small steps forward, while welcomed, are not enough,” said Jason Botel, the executive director of MarylandCAN, in a statement. “They must be the start, not the end, of our work to dramatically reform charter school policy in our state.”

Kara Kerwin, the president of CER, believes MarylandCAN is mistaken to think that they can just go back and improve on the new law later. She points out that the new law clarifies that only the local district board—not the Maryland State Board of Education—can authorize new charters, and that online charter schools are now explicitly prohibited from operating within Maryland.

In an interview, Kerwin describes online charters as “one of the biggest innovations right now that’s helping so many students who aren’t brick and mortar types.” However, several studies have found that online charter schools tend to provide a lower-quality education than traditional schools, and a 2011 New York Times investigation found that K12 Inc., one of the nation’s largest online charter school operators, “tries to squeeze profits from public school dollars by raising enrollment, increasing teacher workload and lowering standards.”

Most people interviewed for this story do not believe the new law will lead to an expansion of Maryland charter schools, one of Hogan’s top policy priorities. “The final bill that passed was very limited in scope, it doesn’t have a whole lot of changes,” Macdonald says. “But it’s a step in the right direction.”

So what does this all mean for the future of Maryland charters?

“I have no doubt that this was round one and [the operators] are going to try again as long as Hogan’s governor,” Gaber says. “We’re going to keep fighting. We started this teacher coalition knowing that this is a long-term fight and we need to be organized and ready before the next time comes.”

Kehl thinks that the Maryland Alliance of Public Charter Schools, which just officially emerged as a statewide group in July, will focus on building a more unified policy voice and cultivating a stronger presence in Annapolis. “Our charter sector has matured,” she says. “If you believe that schools shouldn’t be one size all, then you have to create a system that supports that. I don’t see how you can make change if you keep everything the same.”

Whether new legislation will be introduced next year is an open question. Kerwin of CER thinks such an effort would be futile, even if they tried. Todd Reynolds, the political coordinator for Maryland’s American Federation of Teachers, says some legislators might decide it makes sense to wait until after the new MSDE/DLS study is completed.

While the emerging landscape appears fraught with tensions between the district and the charter sector, there still remains a possibility that Maryland charters will chart a different sort of future than that of other states.

Even though Macdonald of the City Neighbors Charter School supported Hogan’s legislation, she acknowledges that some parts made her feel ambivalent. While she feels strongly that Maryland charters need more autonomy and bureaucratic relief, she also wants to preserve collective bargaining rights for charter teachers. “I feel like Maryland is so unique in our stance,” she says. “I haven’t yet seen the bill I would really fight for.”

In a few months, on Oct. 22, the Teachers’ Democracy Project will be hosting a big meeting between teachers, charter operators, politicians, union officials, and school board members to try and figure out a way forward that doesn’t require another heated legislative fight. Atkinson believes the current law is good, but that Baltimore teachers—charter and non-charter alike—should be organizing for more money for all schools. “We’re going to try to hold an open conversation about what people’s concerns are,” said Atkinson. “The operators are reasonable, they’re not right-wing, they’re not trying to get charters to take over the world. Their main frustrations are with the union contract and some of the ways the district controls things.”

McGill thinks that a more collaborative push for charter reform from the district, teachers, and charter operators “would be the ideal” solution but worries things are growing too polarized for that to materialize. Gaber, however, says that the Baltimore Charter School Teacher Coalition has also discussed how they want to stand for something, and not just against reform. “I think it would be a good idea for us to be more proactive,” adds Reynolds of the AFT. “We should get back to what charters were intended to in terms of offering innovation that can then be brought into traditional schools.”

The question of whether some of the larger CMOs would be interested in setting up schools in Maryland remains uncertain. Kehl says it’s important to help facilitate more attractive operating conditions because “there’s a certain point where you tap out your local leadership” and if you “can’t attract national talent” into Maryland, then you’ve just closed the door on quality options for kids.

Others see luring CMOs as a less urgent priority, especially given how the state increasingly underfunds public education. In his latest budget, Hogan increased state education funding by 0.4 percent, but cut Baltimore City’s funding by 3.3 percent. Attracting those CMOs—which would likely be into Baltimore—might mean redirecting funds toward charter facility expenses or pushing harder to restrict collective bargaining. Maryland might also experience some of the financial strain that rapid charter growth in other states has placed on traditional schools.

Testifying last spring, CEO of Baltimore City Public Schools Dr. Gregory E. Thorton said Hogan’s bill would work “to the benefit of large out-of-state charter organizations—to the detriment of Maryland’s most vulnerable student populations.”

While the Baltimore City School District might need to work harder to collaborate with its local charter sector, and the teacher unions may need to re-examine some provisions within their contracts, it’s not yet clear that Maryland’s unique charter culture is headed out the door.

State law currently allows charters to negotiate waivers and exemptions from certain aspects of the district-wide collective bargaining unit. That’s how Baltimore’s KIPP charter school was able to extend its school week; KIPP had to agree to pay its staff more money for the increased number of working hours. Theoretically charter operators could sit down with union leaders to discuss some of their most pressing concerns around staffing, innovation, and autonomy. “It’s not meant to be a one-size-fits-all situation,” says Reynolds. “You can sit down with the union and negotiate a Memorandum of Understanding. We have done that, and I think that’ll continue.”

“I think it would be amazing to sit down with the union and really roll up our sleeves,” says Macdonald. “I do think it’s really important for teachers to be unionized, to collectively bargain, and to get paid well, but I also think if we want to innovate and serve the children of Baltimore, we really have to allow [for] some more flexibility.”

The Uphill Battle of Unionizing a Philly Charter School

Originally published in The American Prospect on June 4th, 2015.
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O
n April 30th, faculty at North Philadelphia’s Olney Charter High School voted 104-38 in favor of forming a union, an NLRB election that Olney’s charter operator, ASPIRA, has since announced they’re challenging. Olney’s union campaign is only the latest in a small but rapidly growing wave of charter union drives nationwide. But few efforts have been as contentious, or as revealing, as this one. Ever since the campaign began three years ago, ASPIRA has pumped tens of thousands of dollars into an elaborate union-busting effort, even as the beleaguered district it’s funded by struggles with massive debt. Unionizing Olney also threatens to shine light on ASPIRA’s questionable finances, at a time when authorities at the state and district level have failed to act. More broadly, the union drive in Philadelphia reveals how charter management organizations can use lax regulation to dodge financial accountability.

ASPIRA took over Olney, along with John B. Stetson Middle School in 2011 through Philadelphia’s “renaissance” school turnaround project, whereby charter operators are given the opportunity to improve the academic performance of struggling district schools. As part of the renaissance conversion, remaining educators at Olney and Stetson lost their union membership.

It wasn’t easy for Olney staff to reach their April 30th election; for the past three years they have dealt with an administration intent on suppressing union organizing efforts. Tactics have included threatening teachers with layoffs and cuts to benefits, putting anti-union literature in teachers’ mailboxes, and instating new discipline policies, which included barring employees from criticizing ASPIRA on social media. The NLRB sided with educators in three of the four unfair labor practice complaints they filed in response to these measures.

Other tactics that have garnered criticism, including from Philadelphia Councilwoman Maria Quiñones-Sanchez—who once served as ASPIRA’s Executive Director—relate to services ASPIRA has employed, with public dollars, to fight the union effort. In August 2014, Philadelphia City Paper reported that ASPIRA paid a law firm with experience in fighting unionization efforts at least $72,163. This past April, the chair of the Olney school board signed a contract with consultants to lead self-described “union avoidance” meetings for Olney staff, as well as to help ASPIRA design and implement a campaign to fight unionization. The cost for these consultants was $25,000 and the contract stipulated that that figure “does not include any time that may be spent in responding or defending any charges filed by the union at the NLRB.”

Stetson educators recently launched their own organizing drive, and ASPIRA is sending consultants and lawyers there, too. Moreover, ASPIRA sent their consultants to lead a mandatory meeting at Eugenio Maria de Hostos Charter School, another one of ASPIRA’s five charters, to reportedly “pre-empt an organizing effort.”

The budget problems plaguing Philadelphia public schools have forced the district to close dozens of schools, to lay off thousands of workers, to reduce transportation services, and more. How then, do we get to a point where charters are able to spend such significant sums of public dollars to fight union efforts? Who, if anyone, gets to have a say?

Are Charter Employees Public or Private?

Charters, which have been around for a quarter century, are publicly funded but independently managed schools. In education circles there’s a fierce debate over whether these schools are truly “public”—charter proponents insist that they are, while others see charters as a means to privatize education.

Aside from whether charter schools are public or private, another question is whether charter school employees are public or private—important distinctions not only for union formation but also for labor rights more broadly. The courts have taken the position that there is no clear-cut answer for charter employees, and each situation must be determined on a case-by-case basis depending on individual state laws and regulations, as well as the composition of each charter organization. But in one significant case from 2012, the NLRB ruled that educators at the Chicago Mathematics & Science Academy Charter School (CMSA) were private employees mainly because no government entity has the authority to appoint or remove CMSA board members, and no board members are directly accountable to public officials. In 2013, citing the CMSA ruling, the Pennsylvania Labor Relations Board effectively disclaimed jurisdiction over charter labor disputes in the state, concluding that such matters should be dealt with at the NLRB.

Which brings us back to Olney and Stetson. Despite previously stating that it would respect the results of an NLRB election, ASPIRA now claims Olney teachers are in fact public employees, and thus not subject to the NLRB’s jurisdiction. Stetson educators also recently filed for their own union election and ASPIRA challenged them, too. While the NLRB held a regional hearing and determined that Stetson educators are in fact covered under the NLRB, no determination has yet been made for Olney educators. However, since the legal arguments are the same for both renaissance schools, one can assume that the NLRB will ultimately uphold jurisdiction.

Many view ASPIRA’s NLRB challenge as a stalling tactic, but their action is not illegal. Wilma Liebman, a former chairman of the NLRB, told me that jurisdiction challenges are permitted at any stage of the election process. But considering that ASPIRA has not dropped their Olney challenge despite losing their Stetson one, many wonder how far ASPIRA will go before they agree to collectively bargain, and how expensive the legal bills are going to be.

In theory, if the regional NLRB rules in favor of Olney educators, ASPIRA could appeal to the national NLRB board in Washington, D.C. If ASPIRA loses all possible appeals, and they still refuse to bargain, then the NLRB will have to take them to District Court. Such cases are extremely expensive. “If they still refuse to bargain past a District Court ruling, then they’d be found in contempt,” said Liebman.

Other Questionable ASPIRA Expenditures

One reason ASPIRA so staunchly opposes unionization may be that the collective bargaining process could shed light on the organization’s suspicious finances.

One reason ASPIRA so staunchly opposes unionization may be that the collective bargaining process could shed light on the organization’s suspicious finances. Over the past several years, evidence suggests that ASPIRA has engaged in other instances of questionable financial behavior. The Philadelphia Daily News found that ASPIRA has borrowed nearly $3.5 million from its charter schools, though the public doesn’t know where that money went. Journalists also found that school staff used debit cards without providing receipts, and that bank loans were signed where one charter school would guarantee the debt of another. Under the law, each charter is supposed to function as an independent entity.

Lauren Thum of the Philadelphia School District’s Charter Office told Newsworks that the district couldn’t confirm whether ASPIRA is spending its charter school dollars in the schools themselves, or whether money is being siphoned off for other things. Part of the complication stems from the fact that although each of ASPIRA’s five charters is organized as an independent nonprofit, they all share the same board of trustees through their parent organization, ASPIRA, Inc. of Pennsylvania. And although the school district worries that ASPIRA charters may be improperly shuffling money around, they have thus far been denied access to the parent organization’s financial records. “It’s very difficult to follow the financial trail when there are so many complicated, connected entitles, and money flowing throughout them,” Thum said. In the meantime, ASPIRA continues to deny any financial wrongdoing. ASPIRA also declined to be interviewed and several school board members did not return requests for comment.

In 2010, the Philadelphia City Controller released a report criticizing a practice common amongst Philly charters whereby the schools use public funds to pay rent to parent organizations or subsidiaries; this is what ASPIRA does with ASPIRA, Inc. of Pennsylvania. “Properties that are being paid for with taxpayer funds are being either transferred [to] or controlled by nonprofits with no accountability to the school district or taxpayers,” the report concluded. However, five years later, the practice continues.

Under the law, unions are entitled to see the financial information that pertains to their bargaining unit. (This includes things like health insurance costs, salaries, etc.) And if during negotiations management shoots down a union’s proposal by claiming they have an inability to pay, then the union is legally entitled to access more financial information to verify management’s claim. “In my opinion, I think the real issue is ASPIRA doesn’t want a union poking around in their finances,” a Philadelphia School District official told me. “Having a union gives them the right to do that in order to bargain in good faith, and [ASPIRA] doesn’t want anyone looking at anything.”

And so far, no one really has. As millions of dollars move around between the charter schools, the parent organization, and ASPIRA’s two property-management entities, the school district’s ability to challenge ASPIRA’s financial behavior remains unclear. In January, the district sent a letter to ASPIRA outlining 17 conditions the nonprofit would need to meet if they want to have their Stetson charter renewed. Conditions include reorganizing Stetson’s school board so that the parent organization doesn’t directly control it and getting a treasurer with a background in finances and audits.

Since then, ASPIRA has complied with some of the district’s requests, and has challenged others. Notably, they have so far refused to provide access to relevant financial information of its parent organization, though conversations between ASPIRA and the district are still ongoing.

“Nobody has enough power or enough money to really stay on top of things, so it becomes really easy for things to end up in a big mess,” said Susan DeJarnatt, a Temple University Law School professor who studies Pennsylvania charter law. “I frankly don’t think the state legislature thought ahead about the financial ramifications in any serious way. It’s [as] if everyone thought ‘oh this is a great idea, oh there will be cool new schools.’”

A Need for Greater Oversight

ASPIRA’s accountability problem is similar at the district level. “We just don’t have time right now to oversee [all that] we’re supposed to oversee,” the Philadelphia district official told me, who added that they need far more resources and manpower to do comprehensive charter investigations. And, as the situation with ASPIRA suggests, perhaps school districts need to be granted explicitly clearer legal authority to track where charter dollars go. Though charters are premised on a model of increased accountability, the public, as it stands, is unable to hold these schools accountable.

Beyond tracking the unclear money, what about the costs that are clear, like the lawyers and consultants? When I asked David Lapp, an attorney with the Philadelphia-based Education Law Center whether the school district could protest ASPIRA spending public dollars to fight a union he said it would be unusual, though not necessarily illegal. “Generally speaking, the charter authorizer, which in Pennsylvania is the school district, has the general duty to oversee that charter schools are following the law,” he said. “I’ve never seen a school district give any sort of opinion to a charter school about labor law issues, but whether they could seems to be an open question.”

Regardless, as ASPIRA will find, there’s only so long that an employer can delay negotiating with a staff that’s committed to forming a union.