August 10 — 6:53 am, 2018

Khepera Charter School appeals closure decision to state

dixon 16911 e wp content uploads 2017 06 040513 truebright 600 1 Khepera Charter School is at 926 W. Sedgley Ave. in Hunting Park.

It takes a long time to close a charter school, and the process includes many opportunities to delay closure for years. Khepera Charter School has exhausted all but its final chance and is now appealing to the state’s Charter Appeals Board to overturn the School Reform Commission’s decision to close the school.

Khepera is a K-8 school with 450 students located in Hunting Park. It was awarded its first charter in 2004, which was renewed in 2009. After academic results declined, the charter was renewed in 2014 with explicit conditions, along with the proviso that failure to meet these conditions would lead to the closure of the school. 

Many of the conditions were never met; beyond that, the school continued to violate the state charter law. Since signing the 2014 charter, the school failed to hire enough certified teachers. Growth on the PSSAs largely reversed as scores began to plummet. The school promised to revise its discipline policy and reduce student suspensions, but instead, suspensions increased, even among kindergarten students. Board members didn’t file the required conflict of interest forms. Nor did the school submit the required financial reports and independent audits. 

In 2015, the SRC’s Charter Schools Office first warned Khepera that it was failing to meet the conditions. Yet the school has been operating ever since and, by all indications, plans to open for the 2018-19 school year.

Khepera’s appeal to the state essentially seeks to dismiss all charges for a variety of reasons. Its lawyers argue, for instance, that a lack of certification paperwork for a given teacher doesn’t prove that the teacher isn’t certified. 

The school ignored the first “notice of deficiency” from the Charter Schools Office, sent in October 2015. The charter office sent another notice in May 2016, another in August 2016, and yet another in May 2017.

Khepera did not respond to these notices. So in June 2017, the SRC voted to begin conducting public hearings to determine whether it should revoke the school’s charter — fully two years after the school failed to meet multiple terms of its signed contract. Hearings began Aug. 10, 2017, and ended Sept. 12, for a total of seven sessions.

Then a period for public comment ran from Sept. 15 through Oct. 16.

During the final hearing in early December, a hearing examiner who worked for the School Reform Commission ruled that Khepera’s charter be revoked because of what the charter office had already discovered: “Khepera has failed to meet applicable requirements for student performance, has failed to meet generally accepted standards of fiscal management and audit requirements, has violated applicable laws from which it has not been exempted, and has violated material standards and conditions contained in its written charter.”

The SRC voted Dec. 14 to revoke the charter, and the school has now appealed to the state’s Charter Appeals Board. That process could delay any closure for years to come.

After the SRC voted to revoke the charter of Walter Palmer Leadership Learning Partners Charter School in the spring of 2014, the school filed an appeal to the state so that it could open its doors in September for the next school year.

But when it could not pay employees, Palmer abruptly shut its doors in December 2014, stranding students mid-year and forcing the District to scramble to find places for them.

This cut short the hearings before the state Charter Appeals Board, at which administrators for the charter school had invoked their Fifth Amendment right against self-incrimination 77 times.

After closing the charter, Palmer, a longtime civil rights leader in Philadelphia who founded and ran his namesake school, became a consultant to Khepera, where he initially helped with recruitment. At the end of 2016, he was hired to be CEO.

Khepera’s website gives every indication that it intends to operate throughout the 2018-19 school year and is continuing to recruit and enroll new students.

The longest charter revocation process in state history was for Pocono Mountain Charter School. It lasted six years from the initial revocation hearings to the date the school finally closed. The charter revocation hearings ran for two years, starting in 2008, and appealing to the state’s Charter Appeals Board allowed the school to remain open for three more years. Then the school appealed the state board’s decision twice to higher courts, and only closed in 2014 after it declined to file a third appeal.

Toward the end of the process, Pocono Mountain’s CEO was convicted of using the school to funnel more than $1.5 million in tax dollars to himself, his family, and his businesses. He was sentenced to 10 months in prison.

Struggles on standardized tests

Khepera’s PSSA scores declined consistently in nearly all subject areas for the last three school years, particularly in math and English language arts (ELA), where the school is well below the averages for both District and charter schools.

The appeal states that this can’t be held against Khepera. It maintains that the District did not prove that the school had “consistently” poor performance on the PSSAs because it only examined data from the school years since the last charter was signed in 2014 – not every single year the school was in operation.

“Throughout the appeal, they keep saying it’s not their fault. They tried, they’re innovative, so they should keep operating,” said Susan DeJarnatt, an attorney familiar with the state’s charter law and a professor of legal research at Temple University. “They say Khepera did not consistently fail academically because the District only looked at recent years, but they never actually say that the older years had good academic performance.”

The school has a relatively large special education population — 18 percent of students, compared to 15 percent across District schools. But these students are struggling academically. In 2015-16, 0 percent of students with an Individualized Education Program (IEP) scored proficient or above in math or science on the PSSAs, compared to Philadelphia’s charter sector average of 20 percent in science and 7 percent in math.

The 2014 charter also required that the charter school meet the state standards for annual academic growth, or improvement over its own scores the year before. In the 2014-15 school year, the charter office found, Khepera did not meet this standard in English language arts and math, thus failing to meet the conditions it had agreed to when signing the charter. It also failed to achieve growth the following school year in ELA and science.

The SRC also cited steep declines in attendance. In 2014, 51 percent of Khepera’s students attended 95 percent or more days of school, but that declined to 33 percent in 2016 — 12 points below the average for K-8 District schools and 27 points below the average for K-8 charters.

“Their next argument is that it’s unfair given Khepera moved from Mount Airy to a more economically depressed location,” DeJarnatt said of the school’s new location in Hunting Park. “But they made that choice to move.”

The District’s Charter Schools Office also found that Khepera has violated the state’s charter school law by failing to have the minimum 75 percent of certified teachers. Just 72 percent of teachers were certified in 2014-15; just 42 percent were appropriately certified in 2016-17.

In its appeal, Khepera says the burden of proof for this is on the School District, arguing that a lack of paperwork doesn’t prove lack of certification. Khepera contends that it was “locked out of the system” used to submit certification documentation, but does not explain why those certifications were not delivered in person.

“They say it’s unfair to put the burden for certifications on Khepera because they were locked out of the system, but they don’t actually assert that they did meet the certification requirements,” DeJarnatt said. “It’s part of this constant drumbeat of excuses.”

While arguing that its academic program is tailored to a student population that is extremely disadvantaged, Khepera earned zero points from the state that would have been given for closing the achievement gap between these students and their more affluent peers in both math and ELA during the last school year that data were available.

Student discipline: A clash of practices

The District has been moving away from zero-tolerance discipline policies and toward an approach closer to restorative practices — as shown by its ban on suspensions of kindergarten students for non-violent infractions, which has now been extended through the 2nd grade. But not every school, whether District or charter, has jumped on board with the new direction.

Khepera seems to have taken its time.

The SRC cited problems with suspensions and student attrition, perhaps related to violations found in the Charter Schools Office’s most recent evaluation. The school was flagged for the use of suspensions on students in grades K-2 for minor, nonviolent offenses. The most recent evaluation found that 2 percent of kindergarten students received a suspension in the 2016-17 school year.

All this was despite the school’s board submitting a 12-point suspension-reduction plan as part of a condition in the school’s 2014 charter. The following school year, suspensions rose instead of falling.

In voting for the charter revocation, the SRC cited the finding that 18 percent of all students at Khepera received at least one out-of-school suspension in the 2014-15 school year. The next year that number rose to 23 percent. That year also saw a higher rate of kindergarten suspensions, too: 11 percent.

The charter office also flagged the school’s code of conduct for not articulating students’ due process rights for hearings on suspensions and expulsions.

A ghost town for English learners

The SRC cited Khepera’s admissions policy as another reason for revocation, saying it does not comply with the state’s charter school law or public school code.

These state laws require schools to send parents Home Language Surveys in order to identify those parents who do not speak English and may need translation services. But Khepera did not conduct these surveys. The school also requires parents to have a photo identification card to enroll students, a practice that is prohibited by the state Department of Education.

The SRC also cited the school’s English learner policy, which does not comply with state Education Department guidelines because it does not detail the instructional model, how English Learners are identified as needing services, or the program’s exit criteria.

Khepera does not actually enroll any English learners, but these deficiencies make it impossible to determine whether this is the cause or result of the school’s lack of supports for English learners.

Finances and ethics documents

Much of Khepera’s trouble stems from financial struggles, such as a failure to make payroll for its employees, failure to make retirement payments, and a lapse in the employee health care plan stemming from Khepera’s inability to pay the associated premiums.

Because the state was withholding money due to Khepera’s failure to make pension payments, the school was unable to pay employees throughout June in 2017. In its appeal, Khepera dismisses this as irrelevant because the issue has since been resolved and the school is once again paying employees.

DeJarnatt said that although the law does provide an exception for “extraordinary circumstances,” those circumstances are essentially defined as things that are can’t be anticipated.

“But the ‘extraordinary circumstance’ here was that they didn’t make their retirement payments,” DeJarnatt said. “That’s not an extraordinary circumstance — that’s a circumstance they created.”

Khepera’s finances are unknown. The charter school failed to submit required annual reports or independent financial audits to PDE, a violation of the state’s charter school law that made it impossible for the District’s charter office to evaluate its financial situation.

The school’s last charter also mandated that it comply with the Pennsylvania Public Official and Employee Ethics Act and with the state’s nonprofit laws. In violation of both, the school’s board hired one of its own board members for a paid position at the school.

Board members also used school funds to pay Khepera employees to make renovations on the homes of those same board members — another violation of these state laws. And the school bought a cell phone and a laptop computer for at least one board member for both professional and personal use.

Khepera agreed in 2014 that it would submit signed statements of personal financial interest annually for board members. The school never submitted any of these statements.

“The financial interest statements are pretty important,” DeJarnatt said. “That’s how the Ethics Act is enforced, through public disclosure. That’s not a minor problem.”

The appeal filed by Khepera rejects that the school violated the Ethics Act because there is not evidence that board members “refused to comply” with the act, only that they failed to comply. The appeal also states that there is no evidence that any of these violations “rose to the level of a serious violation.”

“I think they are dodging,” DeJarnatt said. “The Ethics Act requires compliance. It doesn’t just require you to not deliberately violate it.”

Khepera also rejects the conflict of interest charges because the board member given a job at the school, Sharon Whitney, was originally a school employee, who left her job to join the board and then left the board to resume her old job. And Khepera also rejects the charge that it should not have bought a cell phone and laptop for board member Richard White, who kept them for personal use after leaving the board.

“If the use of the laptop and cellphone is construed as compensation,” the appeal states, “such ‘compensation’ was reasonable and based on the value of services rendered to the school.”

The school also failed to submit a reimbursement report for employee health care as required by the Pennsylvania Code of Provisions. The school’s health-care coverage lapsed for its employees throughout December 2016.

Khepera defaulted on its lease at 926 W. Sedgley Ave. in Hunting Park, and the landlord filed for eviction in May 2017. At that point, the school owed $87,346 in unpaid rent, late fees, and an attorney’s fee. However, Khepera points out that this issue has since been resolved without eviction.

Khepera argues that its failure to maintain continuous health coverage and its failure to submit annual audits to the state are excused by the “force majeure” clause in their charter, which exempts it from causes that it could not anticipate. They blamed the company they hired for not completing the 2014 audit and contend that the failure to complete that audit made it impossible for the school to complete any subsequent audits in the years since.

“My understanding of force majeure clauses is that they are supposed to refer to un-anticipatable circumstances,” DeJarnatt said. “So they’re claiming a 13 percent increase in health insurance premiums was un-anticipatable? Everybody’s premiums have been going up. Thirteen percent isn’t even that much of an increase, relatively speaking.”

She added: “Hiring a bad financial management company falls on Khepera as well, because they chose the company and they had the obligation to make sure it was doing its job.”

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