Ohio’s Legislative Democrats Challenge ECOT’s Claims in Amicus Brief Filed with Ohio Supreme Court

At the end of last week, explains Jim Siegel of the Columbus Dispatch, all nine Democrats serving in the Ohio Senate along with 30 of the 33 House Democrats signed an amicus brief urging the Ohio Supreme Court to find for the state and against the notorious Electronic Classroom of Tomorrow (ECOT), the state’s biggest charter school. ECOT has been challenging the state all year to let it collect state per-pupil funding without documenting that students are actually attending school.

The Ohio Department of Education has been trying to claw back $60 million over-paid to ECOT for the 2015-16 school year and another $19 million for 2016-17.  ECOT has continued to claim that state law does not require the school to document that students are actually logged in for 920 hours each year—working with the curriculum the school provides—but merely that the school provides the curriculum to the students it claims are enrolled.

ECOT has challenged in court the state’s demand that the school document attendance records if it intends to collect payments from the state. ECOT’s appeal is currently being considered by the Ohio Supreme Court. Plunderbund summarizes the history of the case: “ECOT filed the lawsuit more than a year ago claiming it is not required to document how many hours its students (are) engaged in learning…  After losing in Franklin County Common Pleas Court and the 10th Circuit Court of Appeals, ECOT has appealed to the Supreme Court of Ohio.”

The amicus brief filed last week by legislative Democrats follows the filing of another amicus brief in late October. The Columbus Dispatch reported that Bill Batchelder, the now-retired Speaker of the Ohio House, and four other former Republican legislators filed their own amicus brief with the Ohio Supreme Court. They claimed that the Ohio Department of Education “is violating legislative intent by requiring ECOT to verify its enrollment with log-in duration.” If you are having trouble parsing that outrageous nonsense (which seems to mean that the legislators intended for ECOT to amass tax dollars for students the school cannot prove are enrolled full time), it may help if you remember that only months after retiring from a career in the legislature including serving as Ohio’s House Speaker, Bill Batchelder opened a lobbying firm, The Batchelder Company, which represented ECOT’s founder William Lager until July, 2017.

In the introduction to their amicus brief, Ohio’s legislative Democrats expose ECOT’s bizarre argument: “The issue… before the Court is whether the Ohio Revised Code Chapter 3314 allows the Ohio Department of Education (ODE) the ability to use durational evidence of student participation to determine funding for internet- or computer-based community schools (e-schools).  Revised Code section 3314.08 and its subsections plainly incorporate durational requirements as part of the review of student participation meant to determine the amount of funding an e-school is entitled to receive from the state.  It is incontrovertible that ODE has the right… to use a durational element in a review of e-school funding claims.  It is incontrovertible as well that the legislative history of chapter 3314… shows that the legislature routinely amended the code to make enforcement and oversight of e-schools more thorough…  Finally, the Court cannot find in favor of the Appellant.  To do so leaves an absurd hole in Ohio’s constitutional guarantee to teach its children in free, publicly funded schools.  A decision that finds for the Appellant creates a void in which to take and squander taxpayer dollars without allowing any government oversight for the stewardship of those dollars…  The Ohio Constitution demands the state educate its children.  It cannot be Ohio’s founders and successive caretakers’ hope that those children would never be brought to a classroom (electronic or otherwise) yet the school and its administrators would reap lavish financial rewards.”

Toward the end of their amicus brief, Ohio’s legislative Democrats declare: “The entire system of public school regulation is geared toward ensuring children receive an education.  The record in this case reflects that ECOT and other e-school amici failed in this obligation and are callous toward that failure.  The state should not have to withhold funding to guarantee those who purport to be educators take basic steps to teach children in their charge, but this case shows they must.  The state does not seek this level of regulation for its own sake or to target e-schools, but to avoid the tragic reality we are confronting in which thousands of students have not received education for which their alleged school was paid.”

The attorney of record on the legislative Democrats’ amicus brief is Joe Schiavoni, the former Senate minority leader and an announced candidate for governor. Schiavoni, who represents the Youngstown area, has twice introduced bills to regulate attendance reporting by ECOT and Ohio’s online charter schools. Describing his proposed legislation, which has never been brought to a vote, Schiavoni commented:  “We need to make sure that online schools are accurately reporting attendance and not collecting tax dollars for students who never log in to take classes. Online schools must be held accountable for lax attendance policies. Without strong oversight, these schools could be collecting millions of dollars while failing to educate Ohio’s school children.”

This blog has tracked the long ECOT scandal.


Ohio’s ECOT Charter School Files Lawsuit to Block Attendance Audit and Protect Profits

Lawyers for the Electronic Classroom of Tomorrow, Ohio’s largest charter school and one of the nation’s largest e-schools, has employed a new tactic to protect the school’s collection of tax dollars for phantom students. Jim Siegel and Catherine Candisky of The Columbus Dispatch report that ECOT has filed a lawsuit to block an attendance audit to be conducted this week by the Ohio Department of Education:

“Facing the potential loss of tens of millions of dollars in taxpayer funding, Ohio’s largest online charter school sued the state Friday in an attempt to block an upcoming attendance audit. The Electronic Classroom of Tomorrow filed the lawsuit in an attempt to stop the Ohio Department of Education from requiring that the school provide records of daily student log-in times, which the lawsuit calls ‘a bait and switch.’  The state’s preliminary attendance review of ECOT in May raised questions, noting that ‘most log-in times from these files did not substantiate 5 hours per day of log-in time for the students reviewed. The accuracy of attendance figures is crucial because they are the key factor in determining how much state money a school receives. ECOT gets about $107 million per year for more than 15,000 students.” The Ohio Department of Education had scheduled a final ECOT attendance review this week.

Neil Clark, ECOT’s “consultant” and one of Columbus’ best known and most powerful Republican lobbyists, explained on Friday that ECOT signed a funding agreement with the Ohio Department of Education back in 2003.  Clark says the 2003 contract requires only that that ECOT offer each of its students 920 hours of “learning opportunities” in every school year but does not require students actually to participate for five hours every day—all 920 hours.

The Plain Dealer reprinted and expanded the Dispatch story on page A14 in its Saturday, print edition, but a hotlink is unavailable because cleveland.com, the newspaper’s website, did not pick up the story.  The Plain Dealer‘s story provides additional information from the lawsuit itself, in which ECOT alleges: “The General Assembly elected to make this FTE (full time equivalency) calculation dependent upon the number of hours of learning opportunities offered, as opposed to actual time spent logged in by a particular student… Simply put, had the legislature intended to make FTE funding dependent on student log-in time/duration or some other measure of ‘participation,’ it knew exactly how to do so.  Instead it specifically chose to make the (attendance) funding calculation based on learning opportunities ‘offered’ by Ohio’s community schools.” (In Ohio law, charters are termed “community schools,” unlike the rest of the country where “Community Schools” are defined as traditional public schools with added wraparound health and social services located right in the school building.)

Describing the lawsuit’s contention that a 2003 contract agreement with the Ohio Department of Education merely requires ECOT to provide 920 hours of curriculum but does not require that students actually participate, the Plain Dealer report adds: “The agreement was signed by an associate superintendent at the Education Department but his or her signature is illegible.”

Ohio Senate Minority leader Joe Schiavoni proposed a bill earlier this spring that would have very specifically prevented Ohio’s online charters from charging the state for phantom students.  Senator Schiavoni’s proposed law was written to require e-schools to keep accurate records of the number of hours students spend doing coursework, require the online school to notify the Ohio Department of Education if a student fails to log-in for ten consecutive days, and require that a qualified teacher check in with each student once a month to monitor active participation. When it became clear that Senator Peggy Lehner, chair of the Education Committee, was sympathetic to cracking down on state reimbursements for phantom students, Senator Schiavoni’s bill was sidetracked by Senate leadership to hearings in the Finance Committee. The legislature went on summer recess without acting on Senator Schiavoni’s proposed bill, and it is expected that Senate leadership will let the bill die. (This blog has covered Ohio’s unregulated online charters here, here, and here.)

Senator Schiavoni commented this week on ECOT’s new lawsuit: “This lawsuit is ECOT’s Hail Mary. It is a desperate attempt to cover up the fraud they are perpetrating on the students and taxpayers of our state… ECOT is actually asserting in their lawsuit that they are not required to teach any student anything. But they still demand the hundreds of millions in taxpayer dollars taken each year from our pubic schools. They have now added high-priced lawyers to their army of high-priced lobbyists.”

Senate Education Committee Chair Peggy Lehner told the Columbus Dispatch that she is not familiar with the 2003 contract that the lawsuit claims ECOT signed with the Ohio Department of Education: “To pay ECOT for merely offering something and not delivering it is not a good bargain for taxpayers.”

Bill Lager, founder of ECOT and private owner of the two companies that manage its operations and provide its curriculum, has made millions in profits from Ohio tax dollars paid to ECOT on a per-student basis. Lager is also known to have shared his largess in generous political contributions to protect his online charter empire. Catherine Candisky and and Jim Siegel reported in February that: “William Lager, ECOT founder and operator, was the second-largest individual donor to legislative Republicans in the last election cycle, giving $393,500, plus another $202,000 in 2015.”