Failing Charter Schools: Victims of Unfair Regulation or Blights on Public Education?

Twenty years ago, Arizona became the second state in the nation to allow charter schools to operate in the public education system. In honor of the anniversary, New Times is taking a hard look at charters in Arizona. Earlier stories in this series examined how charter schools often fail kids with special needs and serve a disproportionate number of kids from wealthy white families. Today: how to handle failing charter schools.

Jeffrey Blay Jr. isn't a typical child. He is socially awkward, obsessive-compulsive, and academically brilliant.

Jeffrey attended elementary school in a California suburb. He couldn't stay in his seat. He would walk around, straighten out books, and sharpen pencils as his teachers explained the day's lesson. Not all teachers understood how Jeffrey's mind worked, and sometimes he was punished for not following classroom rules.

At just under 5 feet tall, the 12-year-old has blond hair and blue eyes -- and a diagnosis of autism.

At the end of fifth grade, his parents, Jeffrey Sr. and Jana Blay, opted out of sending their son to a junior high school in California. Instead, they moved to Arizona, where they home-schooled Jeffrey for a year.

And then they stumbled upon a school that seemed as if it might finally meet their son's needs: Jefferson Academy of Advanced Learning in Show Low, a small community about a three-hour drive northeast of Phoenix.

Jeffrey's father, a towering man with a crew cut and broad shoulders, says his wife initially resisted sending Jeffrey to Jefferson Academy because of its poor academic track record. But a visit to the school changed their minds, convincing them that it was the best place for their son.

Today, Jeffrey -- a seventh-grader at the charter school -- can solve complicated algebra problems, though he still struggles with making eye contact and tying his shoelaces. He can create intricate stop-motion animation films using the digital camera his parents bought him, though he still refuses to touch bananas or wear shirts with tags.

Blay says that his son's teacher, Janice Stewart -- one of the school's founders -- understands Jeffrey in a way other instructors never have.

Jefferson Academy has been educating students like Jeffrey since it opened in 2003.

Inside the plain, stuccoed building, which once housed offices for the state's Department of Economic Security, the carpet and walls are clean but worn. The school is tiny, with a student body that averages about 150 pupils.

Also in this series:

Arizona Charter Schools Often Ignore Latino Students and English-Language Learners

The New Segregation: School Choice in AZ Takes New Meaning If Your Child Has a Disability

As Jeffrey sits in class in early September, Stewart circles the room, helping students work math problems in their spiral-bound notebooks. As she answers a question, she gently rests her hand on a student's back. When the group's murmuring gets too loud, she softly whistles to remind the students to focus. Stewart says her students, some of whom have sensory disorders, respond better to rhythmic sounds than to loud voices.

Jeffrey starts singing aloud and Stewart softly reminds him that other students are trying to concentrate. Without a fuss, he muffles his song.

Stewart snaps her fingers in the air a few times and a silence falls over the room.

Jefferson Academy is a public charter school, and its leaders say they accept all children who walk through the doors. In the past few years, the school's unique educational style has attracted a growing number of students with special learning needs or emotional disabilities, as well as kids from economically disadvantaged homes (even some who are homeless). It also has attracted students who simply didn't make it elsewhere.

Parents beam about the academic and social transformations they see their children make at the school. Blay has seen such changes in his own son.

"I was playing football with the kids the other day, and I just realized how well he fits in at this school. All the kids are just like him in their own way," he says. "At the other schools, the kids would pick on him. But here, he's doing great."

Jeffrey's newfound success finally has given the Blay family some peace. But that soon may come to an end.

For almost a year, the Arizona State Board for Charter Schools, represented by the Attorney General's Office, has been pushing to shut down the academy.

Education trends come and go, and for several years now, it's been in vogue to grade schools.

In 2011, as part of a new school accountability system adopted by state lawmakers, the Arizona Department of Education began issuing A though F letter grades ranking its public schools. The new system replaced the old program of "legacy labels," with which schools were ranked "excelling," "highly performing," "performing," "underperforming," or "failing to meet standards."

Today, the Department of Education issues each public school a letter grade, largely based on results from the weeklong state-mandated AIMS (Arizona Instrument to Measure Standards) testing that students undergo at Arizona's 1,478 district schools and 526 charter schools each year.

The post-2011 public school accountability measures are tougher than the previous ones. The new measures factor in students' long-term academic growth as well as current test scores, and they specifically examine growth among schools' lowest-achieving students.

Under the old system, Jefferson Academy coasted along, earning a "performing" rating several years running. But when the new system was instituted, the school found itself facing its worst-ever review: a D grade.

D typically is the lowest grade a school can receive, with Fs reserved for repeat offenders. A school that receives Ds for three consecutive years is in jeopardy of being labeled an F by the Department of Education.

On this year's report cards, released in October and assessing the 2013-14 school year, about a third of schools received A grades, a third received B grades, and the remaining third received mostly Cs and Ds.

But 46 public schools -- both district and charter schools are public -- were labeled failing. Several schools statewide still have grades pending, and many schools are in the process of appealing their grades.

Eight of this year's failing schools were charters. And at least 20 other charters received Ds, putting them on the path to Fs if they don't turn things around in the coming years.

Just what happens to a failing school depends heavily on the type of school in question. Though all public schools are assessed by the state -- Arizona statute doesn't provide any authority for the state to monitor private schools or the education of home-schooled students -- only charters face being shut down over bad grades.

Low-scoring district schools are put on state-monitored improvement plans, but they are never closed. State law allows for solutions teams -- groups of master teachers, curriculum experts, and financial consultants -- to be sent to D and F schools to help them develop action plans.

And while state law also allows for the takeover of such schools -- essentially, personnel changes implemented from above -- this option has never been used for academic reasons, Department of Education officials say. Takeover has been used only in cases involving financial mismanagement of district school assets.

Closing failing district schools just isn't a viable option. All students have the right to a public education, department officials said in a written statement, and "the 'backbone' of the state's public education system is the district school system."

But with charters, when school performance is subpar for three straight years, state law requires charter-issuing boards to begin proceedings to either bring the school up to par or to revoke the school's charter.

The charter revocation process takes an average of 15 months. Depending on whom you talk to, that might be good or bad.

Some education reform advocates believe that under the current system, by the time attempts to close a school begin, a three-year track record of poor academic performance has already been established. If anything, they argue, the process to shutter these charters should be streamlined to save kids from more time in shoddy schools.

Others, including leaders at the schools whose charters are being revoked, argue that their efforts to help students improve don't always come across in test scores alone, particularly in schools with high populations of special needs students. Speedily shutting these schools down, they say, means that kids who struggled elsewhere are left with even fewer places to turn.

"Maybe our kids are a little bit different," Jeffrey Blay Sr. says. "But if we didn't think our son was getting an education here, he wouldn't be here. We're not here just to pawn him off somewhere. He's here because I want him here."

It's clear to anyone who has spent time at Jefferson Academy that Janice Stewart's heart is in the right place.

Stewart graduated from Utah State University with a teaching degree in 1987, and she taught in Washington and California before moving to metro Phoenix.

In the early '90s, Stewart left the classroom and opened a preschool and daycare in her home while she raised her growing family. She closed the daycare in 1994 -- just as Arizona passed the law allowing for its first charter schools to be established -- and she decided to return to teaching, this time at a charter school.

In charter schools, Stewart says, she had "more teaching moments in just two weeks" than she'd had in all her previous education jobs combined.

Stewart kept teaching at charters, left a troubled marriage, and then met the man who would become her second husband and business partner.

Sandy Stewart is a former taxi driver with a degree in business management. He was born and raised on an Idaho farm. Between Sandy and Janice, the Stewarts have 10 children, including a son with autism and two adopted daughters who were removed from a severely abusive home.

The Stewarts eventually found themselves working at a charter school in Show Low. It closed when its management company decided to focus on Phoenix-based schools, and so the couple decided to open a school of their own.

State charter officials granted a license to Founding Fathers Academies, the Stewarts' charter management organization, and they launched Jefferson Academy of Advanced Learning in 2003. Sandy serves as executive director while Janice acts a middle school teacher and administrator.

Today, the Stewarts' own children attend the academy, and their grown daughter and a son-in-law both teach at the school.

Jefferson Academy's population is unique. More than 60 percent of its students receive free and reduced price lunch, an indicator of poverty, and 10 to 15 percent of students are homeless. The student body is mostly white, with the remaining 10 percent to 15 percent of students identifying as Latino and about 5 percent identifying as black.

Jefferson's special education population is large. About a third of students receive special education services. Of the kids who aren't classified as needing special education, 90 percent are between one and eight years behind grade level when they enroll at the academy, Sandy Stewart says.

Arizona law lays out three central elements of charter schools: They provide a learning environment that will improve pupil achievement, they provide additional academic choices for parents and students, and they serve as alternatives to traditional public schools.

From the beginning, Jefferson Academy aimed to do all three.

The school's premise was uncommon. The academy serves students in kindergarten through 12th grade. Upon enrollment, each student is assessed to determine his or her academic level, and then teachers create an individualized learning plan for each child at the school. (These are separate from the formal plans required by special education law.)

"We wanted to allow children to learn in their own way, not just at their own pace," Janice Stewart says. "We tell them they can go as fast as they want, but not as slow at they want."

The school's small staff -- five teachers and several teaching aides -- means that each teacher must handle multiple grade levels at once. Children are taught using a mix of individualized lessons and group instruction at their current academic level.

The Stewarts say their alternative approach drew the attention of families with special needs children, particularly kids with autism and emotional disabilities. The Stewarts pride themselves on running a school where such students can feel safe, cared for, and successful.

Jefferson Academy had grown in size and served nearly 200 students at the time of its first five-year review, Janice Stewart says. The state charter board reviewed the school, and it passed. State records show that from 2005 to 2010, Jefferson Academy was labeled a "performing" or "performing plus" school.

But in the fall of 2011, with the adoption of Arizona's letter grade assessment system, the academy's rating dropped suddenly to a D.

And the ranking wasn't a fluke. Jefferson went on to receive D ratings again in the fall of 2012 and in the fall of 2013.

Three consecutive D grades gave the Department of Education the right to assign Jefferson Academy an F, which it did.

Judging by the numbers, Jefferson hasn't been doing well. In 2013, Jefferson students were outperformed by more than 60 percent of their academic peers statewide on both the reading and math AIMS tests. Only 16.9 percent of the school's students passed the AIMS math test, compared to 60.9 percent of students statewide, and only 38.1 percent passed the reading test, compared to 77.2 percent of students statewide.

The academy's poor letter grades are a direct reflection of these low scores.

But the Stewarts say the state's letter grading system is problematic for schools like theirs. They argue that the system discourages schools from taking in kids who struggle academically -- often special needs students -- because they might drag down test scores.

"It's not the schools pushing these kids out," Sandy Stewart says. "It's the law."

Janice Stewart refuses to consider turning away special needs students. "Where would they go? Which child is it going to be?" she asks. "They come to us, and it's our job is to educate these children in the best way possible."

In September 2013, the school was told it had not met the State Board for Charter Schools' academic performance expectations. That board -- the entity that gave the Stewarts their license to run the school -- looks at state-issued letter grades and additional data in assessing whether a school is up to par.

The board ordered Jefferson Academy to submit a document demonstrating the progress it had made toward meeting expectations, and a site visit by several board employees was scheduled for November 2013. After the site visit, Jefferson Academy was told the progress document submitted by the school wasn't adequate.

The board summoned the Stewarts to attend a meeting in early December 2013. The Stewarts thought there might be some discussion of next steps, or of additional documents they would be required to submit. Instead, they watched in shock as the board members passed a motion to issue a Notice of Intent to revoke the academy's charter.

And so a decade after Jefferson Academy opened its doors, its founders received formal notice that their school was about to be shut down.

On the day after Christmas, Sandy Stewart sent a letter to parents informing them of the board's decision, thanking them for their concern and support, and delivering one clear message: "We will not be closing -- period!!!!!"

But that might not be Sandy Stewart's decision to make.

In Arizona, charter schools have the right to bring closure proceedings before an administrative hearing office for an evidentiary hearing. Jefferson Academy took that option.

Administrative Law Judge Tammy Eigenheer heard testimony from school and state officials over the course of three days in March and one day in May.

Several teachers, parents, and students testified on behalf of the school, asking and begging for it to remain open.

The State Board for Charter Schools, which is represented by the Attorney General's Office in such proceedings, presented evidence of the school's failure to meet both state standards and its own academic performance framework.

The board -- which bears the burden of proof in these hearings -- argued that Jefferson Academy had failed to prove it could meet acceptable levels on three of the board's four assessment criteria. Those criteria include the state's letter grading system, proof of student growth over time, and student academic proficiency, which looks at the number of students passing the AIMS. The board's fourth criterion for academic performance -- a school's graduation rate -- could not be assessed using the materials provided by the school, the board argued.

The board presented evidence of Jefferson's low test scores and argued that beyond the numbers, the school had failed to show that it was aligning its curriculum and lesson plans to state standards, that it was properly assessing students to see whether they were meeting those requirements, or that it had conducted formal teacher evaluations and professional development.

On July 8, two months after the final day of testimony, Judge Eigenheer issued a written decision.

Though she noted that the school was supported by many parents, students, and staff, and though she noted that the school was attempting to meet the particular needs of students in the Show Low community, Eigenheer also pointed out that schools are required by law to address such needs while meeting state and board expectations.

"The administrative law judge has no doubt that the school has helped many students," Eigenheer wrote, "but the students' performance must be measured against other similarly situated students' performance across the state of Arizona. And while the school is to be commended for the actions recently taken to address its low performance, it appears to be a case of 'too little, too late.'"

With that, she found that "revocation was the appropriate sanction" and agreed with the board's decision to shut down Jefferson Academy.

"This is our frustration," Janice Stewart says. "We're not here playing school. I've been doing this for 27 years. This has been my life. I'm not up here to do any kids any harm. We're here because these kids need us."

There are many who argue that a school like Jefferson Academy is the last thing any kid needs.

There has been a nationwide push for the automatic closure of failing charter schools, and Lisa Graham Keegan -- she served as Arizona Superintendent of Public Instruction from 1995 to 2001 and now is chair of the National Association of Charter School Authorizers -- has been one of the driving forces in the state.

When a charter school doesn't close right away, kids are doomed to spend another year in a failing school, Keegan says.

"It's just unacceptable. It's a death sentence, academically. They're not being educated," she says. "There is just no other conclusion to come to."

Keegan testified in March before the U.S. House Committee on Education and the Workforce about the need to "make the very tough decisions to close failing charter schools." She testified that 206 failing charter schools were closed across the country in 2013 alone.

Referring to Arizona's charter school movement, Keegan told the committee: "The big divide in our education system is not between charters and district schools -- it is between schools that are excellent and those that are not."

Keegan floated a measure earlier this year in the Arizona Legislature that would have streamlined the process of closing failing charter schools. Instead of the lengthy proceedings that schools like Jefferson Academy currently are entitled to, Keegan's proposal would have limited a school's right to challenge its closure to only one limited notion: whether the school truly deserved an F grade.

In doing so, Keegan's measure would have drastically reduced the length and scope of the hearings and appeals process, effectively expediting the closure of F-graded charters.

Keegan's proposal has national precedent. With few exceptions, charter advocacy groups tend to support automatic closure laws.

Nina Rees, president and CEO of the National Alliance for Public Charter Schools in Washington, D.C., says that though closing a school can be a difficult thing to do, education advocates have to be willing to make "tough decisions" in order to set a high standard for charters.

California, Florida, Indiana, Louisiana, Michigan, Mississippi, Nevada, North Carolina, Ohio, Texas, and Washington all have mandates dictating the automatic closure of low-performing schools.

But even strict state laws do have catches.

Education experts often cite Ohio as having the toughest automatic closure laws on the books, requiring schools that underperform for two out of three years to be shut down. Under Ohio's law, charter school boards are held responsible for a school's academic and financial performance, and they are placed on a closure list when a school doesn't measure up. But many schools are helmed by charter management organizations, often for-profit companies that run the day-to-day operations of schools. And in Ohio, there is no punitive action taken against such organizations.

"Avoiding Accountability," a 2013 report by the research organization Policy Matters Ohio, found that charter management organizations were able to skirt state laws and keep open at least eight failed charter schools, sometimes under new names but often in the same locations as shuttered schools and with much of the same staff.

Loopholes aside, some argue that such hard and fast closure policies should not exist in the first place.

Jeanne Allen, president of the Center for Education Reform, a Washington, D.C.-based charter advocacy group, told Education Week that she cautions states against creating "one-size-fits-all formulas" for charter closures.

"It flies in the face of what charter schools should be," she says.

Allen said charter authorizers need to be held to high standards for assessing schools but also must "actively understand the context of each school."

The Stewarts say the Arizona board has failed to understand Jefferson Academy's context: its unique student population, the improbability that many students will excel on the state's assessment test, and the great things the Stewarts say they are achieving with these kids regardless.

Leo Condos, the Stewarts' attorney, agrees with that view. "In a system that's created to be alternative, we're finding it hard to put a round peg into a square hole," he says.

In the end, Keegan's attempt to simplify the administrative procedures that drag out the closing of failing Arizona charters was unsuccessful. Perhaps her measure wasn't appealing to the lawmakers who have spent decades focused on crafting the pro-charter laws that have earned this state a top spot in national charter school growth and student attendance rankings.

So for now, shutting down failing charter schools remains a task that takes time.

DeAnna Rowe, executive director of the State Board for Charter Schools -- the organization pushing for Jefferson Academy's closure -- says her board explored the idea of automatic closure during the last legislative session, when Keegan raised it. The board never took an official position, but Rowe agrees that the current nature of legal proceedings greatly slows the process of shuttering failing schools.

After three years of D grades, schools like Jefferson still can exercise their right to a hearing before an administrative law judge and are even entitled to a subsequent appeal.

"It's a lengthy process and a labor-intensive process because the board has the burden of proof," Rowe says. The board's small staff must collect and explain all evidence that supports the closure of a school, which includes gathering written material, conducting site visits, and testifying at hearings.

"People wonder why this happens," Rowe says. "Why are these schools allowed to remain open? They wonder, with these schools having a history of poor performance, shouldn't there be a way to more quickly close the schools and require the parents of these students to make a different choice?"

For Rowe, these rhetorical questions have a fairly concrete answer: There simply aren't enough hands.

At the same time as it handles closure proceedings, the board's eight employees -- that number includes Rowe -- also have to ensure that the state's 500-plus charter schools are complying with all financial, legal, and academic expectations.

Arizona's numbers are fuzzy, but since 2001, Rowe says at least 235 in-state charter schools have closed. The reasons for closure range from forced shutdowns to school relocations to changes in management, so it's hard to determine just how many were forcibly closed.

Rowe says it took the board about a year to process five charter school closures last year, and all but one -- Jefferson Academy -- eventually shut their doors.

It's unclear how long it will take for the board and its skeleton crew to work through all of this year's F-graded schools.

Rowe feels some sympathy for schools like Jefferson, but with limitations. She says she's heard parents testify in court on behalf of schools undergoing closure proceedings, often arguing that such schools make their child feel safe, comfortable, or happy.

"Those kinds of things create a positive environment," Rowe says, "but if you don't have adequate materials, if you don't have quality teachers, and if you don't have a curriculum that's delivered so that students can demonstrate proficiency in state assessments, it doesn't matter how happy the students are. The school is required to provide a learning environment where pupils can improve."

Janice and Sandy Stewart's battle to save their school isn't over yet.

Late last July, after Judge Eigenheer's order confirming the board's decision, the Stewarts appealed, petitioning the Maricopa County Superior Court to review their case.

In the interim, they requested a stay of the judge's order, meaning they would not be forced to close their doors until their appeal was complete.

In court filings, the State Board for Charter Schools argued against letting Jefferson remain open for another day: "The public will be harmed by a stay that delays the closure of a charter school that has consistently failed its students."

But the Stewarts' motion and stay were granted, and today -- three years after it received its first unsatisfactory grade and an entire year after it was notified of the board's intent to close its doors -- Jefferson Academy remains open.

The school received its second consecutive F this October.

The Stewarts say they want to improve their school. They argue that the board should have pushed for the school to get help -- an option outlined in the state school accountability laws -- instead of moving straight toward revoking its charter.

The Department of Education's School Improvement Unit is charged with assisting all failing public schools, whether district, charter, or even online. But when it comes to getting the intensive help the Stewarts dream of, the money simply isn't there.

"At this time, there are no state improvement funds to support D and F schools with grant funding or solution team visits," a Department of Education spokeswoman says.

Until 2009, nearly $5 million were budgeted for such measures, but those funds were cut to under $4 million in 2009, under $3 million in 2010, and to zero dollars in 2011 -- the very year in which the state's new assessment system went into effect.

"Since Superintendent [John Huppenthal] has been in office, our budget requests have included the restoration of this funding," the department told New Times in a written statement. "These requests have not been granted."

Leo Condos, the Stewarts' attorney, filed their appeal in mid-November. The Attorney General's Office, which represents the board, will have 35 days to reply to the school's latest filing, and then the school will have 20 days to reply to that. Condos suspects this means it will be at least another two months -- certainly into the new year -- before Jefferson's case is brought before a judge again. The school will remain open until that time.

"Our test scores are low," Janice Stewart acknowledges. "But we're good at what we do, which is taking kids who are falling through the cracks at the districts and helping them feel like capable learners and succeeding farther than they ever would anywhere else.

"They have enough of failing," she says.

Jeffrey Blay says his son will attend the school for as long as it remains open. If its doors are closed, he says he likely will home-school Jeffrey Jr.

"We've met some other good families, and we'll home school them together," he says. "But what we won't do is we won't put him in a system that has set him up to fail. That's what we won't do. What he needs is the kind of teaching that he's getting right now."

KEEP PHOENIX NEW TIMES FREE... Since we started Phoenix New Times, it has been defined as the free, independent voice of Phoenix, and we'd like to keep it that way. With local media under siege, it's more important than ever for us to rally support behind funding our local journalism. You can help by participating in our "I Support" program, allowing us to keep offering readers access to our incisive coverage of local news, food and culture with no paywalls.
Monica Alonzo and Ashley Cusick