Yeah? What If They Don't?

There's a lot of talk about accountability and why we can't seem to be able to hold anyone accountable in culture of public K-12 education. I think the lack of accountability is built into the system - at every level.

Take, for example, the new charter school law, I-1240. It's full of requirements. For example, the governor, lieutenant governor and speaker of the house have until March 6, 2013 to appoint members of the charter school commission. Yeah? What if they don't? What if they don't make the appointments? Then what? There are no penalties prescribed, no back-up plan, no process to address that contingency. I suppose someone could initiate some kind of legal action against any of them for failure to fulfill the duties of their office, but that won't force a quick appointment, and who would have standing to bring the action?

I'm not saying this to encourage these public officials to refuse to take an action required by law, although I guess it would be a pretty effective means of negating the law. I'm calling attention to this to show how the writers of this law did not consider a contingency - one that isn't hard to imagine - and it isn't just this one.

This requirement isn't unique in this regard. Look through I-1240 and you'll see dozens of similar failures to provide for contingencies. Read all of the parts that say that people will take some action, and ask yourself "Yeah? What if they don't?". You will quickly see that there is almost no provision for such a contingency and certainly no penalties.

I-1240 isn't unique in this regard. Look through all of the state laws for public schools and you'll see hundreds of similar failure to provide for contingencies. Read all of the parts that say that people will take some action, and ask yourself "Yeah? What if they don't?". You will quickly see that there is almost no provision for such a contingency and certainly no penalties. Want to know something funny? Even when there is a provision for some sort of consequence, there is no requirement that the consequence be imposed. Deadlines are regularly missed for grant applications and the applications are routinely accepted late and funded anyway. The folks who are supposed to provide enforcement don't actually provide any. The State Board and the OSPI refuse to do any enforcement work at all. They accept statements from school districts as true even when they are plainly false. Consider, for example, the applications for conditional teacher certification. Consider the claims that schools in Level 5 of sanctions under No Child Left Behind have been "transformed" in lieu of closure. Consider the "School Improvement Plans" that districts are required to create. There is no oversight or enforcement whatsoever.

State law isn't unique in this regard.  Look through our School Board Policies and you'll see dozens more failures to provide for contingencies. Read all of the parts that say that people will take some action, and ask yourself "Yeah? What if they don't?". You will quickly see that there is never any provision for such a contingency and certainly no penalties. Moreover, there is, as we know, no policy enforcement. It is a Board duty because it's clearly a governance function. It is also a Board duty because most of the policies regulate the superintendent and there is no one else with the authority to police the superintendent. But the Board, as we know, not only refuses to ever enforce any policies they have no process for enforcing policy, and no appetite for enforcing policy.

That brings us to the next step. Even if there is a prescribed punishment or consequence, there's a person who is charged with enforcing that rule. Now ask yourself "Yeah? What if they don't?". That's typically the case. The people who are charged with enforcing the rules almost never actually do it. And they are not shy or the least bit ashamed to tell you so.

Anyone who has sought to have a rule enforced knows about this. Ask anyone with a child with an IEP.

So, when people say that there's no accountability in the culture of public K-12 education and that culture of no accountability is pervasive from the top of the system at the federal Department of Education, the OSPI, and the governor's office, all the way down through the State Board, the school boards, the district administration, the school administration, the teachers, and the students. There usually isn't any prescribed consequence for violating the rules and even when there is, that enforcement is almost never applied. That's the way that institutional culture works - it flows down from the top. If the people at the top are not held accountable, if they can violate the rules at will without consequence, without enforcement, and without alarm, that disregard for the rules, that culture of lawlessness, will extend to every person in the system.

Read the rules - federal law, state law, school board policy, or class rule - and ask yourself "Yeah? What if they don't?" So long as there's no clear answer, there's no accountability.

Given this context, I suggest that all of the people and agencies charged with duties under I-1240 simply refuse to fulfill them. There will be no consequences. Don't appoint members to the state charter school commission. Don't make rules for authorizers. Just don't do it.


Anonymous said…
Funny that this is the motto:"Every student achieving, everyone accountable." In fact, it should "some" students achieving, "nobody" accountable. We should just ask that they change it to that.

Charlie Mas said…
For me, personally, there are two things about this gaping failure at every level that really bug me.

First, I work in a highly regulated industry in which any failure to comply can have career-ending consequences. We know and follow the rules with exactitude. In education, people disregard the rules to such an extent that it almost never even occurs to them to bother to learn what the rules are.

Second, I work with lawyers all them time and their job - and some of them will say this - is to consider contingencies. Yet this contingency - that someone will fail to take a required action - is never considered by any of the lawyers or legislators who put these rules together. It's an absolutely astonishing professional failure.
Charlie, what I was told is that the Legislature will write the regulations for 1240 around many of these issues. What? I can see some clarification but how is it we pass an initiative that then needs major work? I don't get it.
Eric B said…
It's astonishing to me how little people considered what the law would allow, particularly on I-1240. When I was doing the opposition research on it, and reading through what it says and what it doesn't, I read passages to my 4th grader, and asked how she would exploit it. She was appalled by what was there. If a 4th grader can pick it up, why don't others?

Like you, I'm in a very heavily regulated industry. I do regulatory compliance work for these people, some of whom report to more than 20 different government agencies. Some of that is looking for loopholes, but most is trying to figure out the intent and plan. I know good law when I see it, and I-1240 wasn't it.
Eric B said…
Every law needs some amount of regulation writing to make it work, but that's usually done by the professionals in the agencies, not by the Legislature.
Jan said…
Part of what concerns me is that regulators can't really just "make stuff up." Regulations have to derive from what the law allows. Thus, for example -- given that the initiative specifically says that charters cannot be limited to low income kids/areas, I do not think valid regulations could be written if, say, they required that lottery ties be broken in favor of schools serving low income students. Throughout the bill, there are numerous examples where they COULD have signalled accountability and oversight (which would at least have given the regulators a fighting chance) but they did not. Some of these things feed directly into what seem to be constitutional flaws. But in any case, I do not think the absence of language that would make it easier (or possible) to write robust regulations around oversight, community involvement, etc. was an oversight. The folks who brought us this bill do NOT want or like sunlight shining on what they do, or who they pay (or how much) to do it.
Charlie Mas said…
Again, the loopholes and absence of enforcement in I-1240 is not unique to this law. Look at any law, regulation, or policy that governs our public education system and you will see that it is all dependent entirely on voluntary compliance.

We heard about this when Districts were requesting conditional teaching certificates for Teach for America corps members. The applications did not begin to meet the requirements set by the law, but there isn't anyone who feels they have the authority to stop it. A dog could get a conditional teaching certificate from the state if a District requested it.

There are schools - lots of them - in Step 5 of sanctions under No Child Left Behind. They are supposed to either be closed or "transformed". None of them have been either closed or transformed. No enforcement.

The superintendent is not constrained in any way by any of the school board policies. He violates them at will because the Board either doesn't know the policy, doesn't know it has been violated, doesn't care, or doesn't have any idea of how to enforce it.
Charlie Mas said…
A couple years ago when it was time for the annual approval of schools, I noticed that some of the school Continous School Improvement Plans (CSIPs) were missing or blank. I contacted the Board and they, too, saw that the plans, required by law, were absent or blank.

The staff scrambled to get the plans finished in time for the vote and claim that they did. In truth, I think they did get them all done in time. But they weren't done in time for the Board to confirm that before the vote.

This is when Director Martin-Morris delivered his scolding to his board colleagues telling them that they should accept the statements of the staff as true - even when they know that they are false - and that they should never presume to actually confirm the veracity of the statements. He told them that wasn't their job.

Makes me wonder what their job is.

Nevertheless, this statement by Director Martin-Morris was a perfect recitation of the cultural perspective. All statements are accepted as true and correct even when they are known to be false.

When Dr. Goodloe-Johnson was promising accountability I kept asking her "What will that look like?" She couldn't say.
Anonymous said…
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Charlie Mas said…
An anonymous comment from 11/30/12 1:40 PM:

Honest question: Why were the TFA requests for conditional certificates illegal? I'm not trying to imply that they were a great idea (clearly there are serious issues there,) but am curious how they were actually illegal. More info is appreciated!

Illegal? Yes. They were. There is a law that narrowly defines the people who are eligible for a conditional certificate.

The conditional certificate may be issued under specific circumstances for a limited period of service to an individual who does not meet requirements for regular teacher, school nurse, or school speech-language pathology or audiology (SSLPA) certification.

Conditional certificates are issued if one of the following conditions is verified:

* The applicant is highly qualified and experienced in the subject matter to be taught and has unusual distinction or exceptional talent demonstrated through public records of accomplishments and/or awards.

* No person with regular teacher certification in the endorsement area is available as verified by the district or educational service district superintendent or private school administrator, or circumstances warrant consideration of issuance of a conditional certificate.

So, yeah, the conditional certificate applications for the Teach for America corps members were non-compliant with the law.
Charlie Mas said…
Contrast the slack enforcement of rules here in Washington with the recent suspension of a teacher in South Lyon, Michigan for playing a song in class without first completing the required form seeking approval for the use of video.

They take their instructional materials policy and procedure very seriously there.
Anonymous said…
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