Written Testimony on (B23–0199) the “Public School Transparency Amendment Act of 2019”

October 2, 2019

Thank you Chairman Mendelson, Councilmember Grosso and Members of the Committee on Education for offering this opportunity to provide testimony today. My name is Jessica Sutter and I am honored to represent Ward 6 on the DC State Board of Education. I submit this testimony in my personal capacity.

I believe that the public has a right to know how public funds are spent on public education. I believe that parents, teachers and students deserve to have a voice in public schools. I am a firm believer that charter schools are an important and valuable component of the public education landscape in Washington, DC.

You will hear testimony today from proponents of Councilmember Allen’s bill (B23–0199) that calls out the safety of children as a key reason for needing greater access to records and meetings at charter schools. I believe that our primary responsibility as elected officials in the District of Columbia is to ensure the safety and security of all our residents, especially our children. But this bill comes before the Council at a time when many of our children are in real, visceral danger every day.

Children living in public housing in the District are getting sick from their homes. DC has incredibly high rates of asthma with nearly 14 percent of children affected, as compared to 8.4 percent nationwide. Children in Wards 7 and 8 are disproportionately affected.

More than 5,500 students in DC schools are homeless. Students facing homelessness and housing instability face high levels of stress, making it more difficult for them to focus on school and progress in their learning. Additionally, many homeless students in DC are housed in hotels often dangerously removed from transportation routes to schools.

Far too many of our children are dying due to a surge in gun violence in their neighborhoods. Three children were killed by guns between Memorial Day and the start of school in August. Three more have been shot and killed since school began. Six young lives have been taken from their families and their futures in the past four months. It is unconscionable. We owe our children better.

While I know that the Council must balance many different needs of constituents in its consideration of legislation, and I know that legislators must take advantage of policy windows of opportunity, it seems to me that these issues of children’s safety are so egregious as to expect that they might merit more attention at present than administrative changes to law.

I hope that, whatever decision the Council makes on the transparency legislation, I will soon hear far more urgency and see direct action from legislators about the health, housing, and safety issues at stake for DC’s most vulnerable children.

With respect to the content of the bill, I would offer three points of concern and several questions for your consideration. The Public School Transparency Amendment Act of 2019 includes plans to include public charter schools as entities covered by both the Freedom of Information Act and the Open Meetings Act. I support the right of the public to access both governing board meetings and public records of charter schools. However, I think the Council must carefully consider the consequences of requiring non-governmental agencies to be subject to a law designed for government agencies.

First, I wonder how the Council will address compliance by charter schools with new requirements under the Open Meetings Act. A recent decision by the Board of Ethics and Government Accountability affirmed the expectation that all DCPS Local School Advisory Teams (LSATs) are subject to the Open Meetings Act. The requirement for LSATs is being used as a justification for charter school boards to be subject to the same requirement. This law requires a few specific things of every such “open meeting,” including:

• Meetings must be noticed publicly
• Meeting minutes must be recorded, and made available for public inspection not later than 3 business days after the meeting
• Meetings must also be recorded, audio or video, and transcripts must be made available for public inspection not later than 7 business days after the meeting
• Meeting minutes and recordings must be maintained for a minimum of 5 years

A quick review of school websites and LSAT information in Ward 6 DCPS campuses shows that few appear to be fully in compliance with the requirements of the Open Meetings Act.

I share this to suggest that, while the law already requires that DCPS schools are subject to the law, there does not appear to be consistent compliance with it. If the Open Meetings Act is extended to public charter school governing boards, how will the law be monitored and enforced across all public school bodies? What consequences will be implemented for failure to comply? What resources will be provided to assist all school-based bodies in complying, especially with the recording and transcription requirements, which may pose new expenses for schools?

Second, I am concerned about the Council’s lack of specifics around supporting charter schools with the implementation of FOIA. The FOIA law extension to public charter schools may pose additional expenses or new resource allocations by schools, especially in the initial years of implementation. While many people have shared concerns about LEA staffing to fulfill FOIA requests, I would add one concern that I have not seen mentioned yet: the possibility of ongoing litigation of FOIA requests. While FOIA allows for nine exceptions to releasing public information, any requester may challenge the use of an exception and bring a lawsuit against an agency. In fact, the DC Council is currently being sued by the Washington Post for failing to release records related to Councilmember Evans.

DC government agencies, such as DCPS, have access to government legal resources to aid in such lawsuits. Additionally, agencies like DCPS can request additional funding from the Council when they experience “spending pressures” or budget shortfalls, as DCPS recently did. Public charter schools, as non-profit corporations, do not have access to either the legal resources or budget reprogramming available to DCPS. What provisions will the Council make for public charter schools subject to FOIA in the case of potential lawsuits or other such significant expenses associated with the new requirement?

Finally, I wonder about the wisdom of requiring that the salaries of individual teachers at all public charter schools be made public. While I understand that the justification is tied to the annual publication of salaries of DCPS teachers, I would encourage the Council to consider important differences between DCPS and public charter school teachers. One such difference is the expectation of a salary scale based on collective bargaining. DCPS teachers enter their employment with an understanding that they will be paid on a defined and predictable scale. While many charter schools design pay similarly, they are under no obligation to do so and may in fact design compensation quite differently. Publishing salaries without context for the design of compensation systems may lead to public confusion, rather than public transparency. Additionally, public resources are available to DCPS teachers in the form of retirement and health benefits that are, according to my understanding, funded by DC government outside of the UPSFF funding formula funds provided to all LEAs. Public charter school teachers are not eligible for such access and individual LEAs arrange for benefits plans for their teachers using only the UPSFF funds provided annually on a per pupil basis. Failing to explain these contextual differences to the public while publishing individual compensation seems problematic to me.

While both DCPS and public charter schools provide quality public educational options for the children of DC, and should be open and transparent to the public, I urge the Council to resist the push to make them do so in identical ways. Holding all publicly funded schools to high standards of performance and transparency need not hold them to doing so in exactly the same way.

I thank you for your consideration.