Bluegrass Beacon – Missing: Checks and balances for school council

BluegrassBeaconLogoMasterminds of the Kentucky Education Reform Act (KERA) intended by choosing to establish School-Based Decision Making (SBDM) councils as schools’ governing bodies to deal with nepotism primarily in rural areas.

Such favoritism did result in abuse of power, often in smaller districts which some superintendents treated as their own personal fiefdoms by hiring family members and doling out jobs as a form of political patronage.

Little whistleblowing usually occurred considering school districts are the largest employers in many smaller communities; locals fortunate enough to get hired by these districts kept their mouths shut and families fed in areas where jobs are scarce.

But how does it help improve our students’ educational opportunities if we merely trade in an old form of dysfunction for a replacement policy that breeds a different kind of fiefdom by removing proven chains-of-command or any semblance of checks-and-balances on these decision-making councils?

KERA gave control of most critical decisions regarding personnel, curriculum and how schools’ allocated funds are spent to SBDM councils, which, by law are controlled by teachers and staff while relegating administrators, parents or other “outside” members to the minority.

Teachers even get the final say regarding the hiring of their own bosses.

Office of Education Accountability (OEA) edicts regularly reprimand superintendents and even elected school-board members just for commenting on personnel or spending decisions.

Board members have no say in such matters.

Garrard County school board member Larry Woods was called out in a recent OEA report for “overstepping his authority as a school board member” simply for passing along constituents’ comments about who should fill open positions in the district.

So, while Woods is expected to cheerlead for the district, heaven help him if he tries to have any input into the hiring of a new coach or expresses his constituents’ desire that a Garrard Countian be hired to fill a guidance-counselor position.

Fayette County school board member Melissa Bacon’s proverbial knuckles got rapped like the Sisters used to dole out to misbehaving miscreants in Catholic schools for wanting good people hired and poor performers fired in a district with years of huge achievement gaps between poor minority students and their middle-to-upper class white peers.

Bacon’s fellow Fayette board member Amanda Ferguson resigned in November after serving a decade following an OEA report taking her to task for criticizing the work of that failing district’s employees based on her constituents’ complaints.

If elected officials can be thrown under the bus with little, if any, consequence or accountability, why even have an elected school board?

The answer, of course, is that the commonwealth’s constitution requires an elected entity to collect all those school taxes extracted from hard-working Kentuckians each payday.

However, local citizens are more likely to reach out to their elected board members with concerns about schools than to some internal bureaucratic council few know about or even consider legitimate.

Besides, isn’t it unfair to hold superintendents and school board members accountable for funding, personnel or curriculum matters while denying them the authority needed to address those situations, or at the very least have some reasonable input?

By denying involvement on the part of school board members, the system, by proxy, rejects parental, citizen, taxpayer and voter participation.

Kentucky’s current system forces superintendents and board members to lead from behind as they are prohibited by law from influencing SBDM prerogatives unless and until a school sinks all the way to the bottom and becomes a “Priority School.”

Charter-school debates often include opponents calling for freeing existing public schools from regulations that tie the hands of teachers and administrators.

Legislators should call their bluff, rid the state of the scourge of KERA’s SBDM – Sen. John Schickel’s efforts to return common sense to school leadership would be a good place to start – and reemploy the chosen-leader-answers-to-the-board model used by successful charter schools nationwide.

Jim Waters is president and CEO of the Bluegrass Institute for Public Policy Solutions, Kentucky’s free-market think tank. Read previous columns at He can be reached at and @bipps on Twitter.

News Release: BIPPS CEO introduces Bevin at conservative gathering

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For Immediate Release: Thursday, May 11, 2017                                                                                         

(COLORADO SPRINGS, Colo.) – Bluegrass Institute president and CEO Jim Waters introduced Gov. Matt Bevin here at Wednesday’s opening luncheon of the Heritage Foundation’s 40th annual Resource Bank meeting, noting free-market solutions combined with Bevin’s principled leadership played critical roles in the historic accomplishments during this year’s Kentucky General Assembly.

“Sound policy ideas coupled with strong, principled political leadership has brought change to Kentucky — from being a state of frustration, where each time a policy that advanced our vision of moving Kentuckians from dependency to prosperity got passed by our Republican Senate only to die before it traveled the 1,000 feet to the other end of the Capitol — to today, where you can drive from east to west through this entire commonwealth and never touch a county that went blue in the last election,” Waters said in prepared remarks, referring to the changes brought about by November’s election in the Kentucky House of Representatives, where Republicans went from having 44 seats and being in the minority to having 64 seats and a supermajority.

Bevin in his remarks challenged hundreds of conservative policy and political leaders and activists gathered from around the nation at the historic Broadmoor Hotel to be unflinching in their approach.

“Step up and be bold; never have a spirit of timidity in anything,” he said. “If you believe in our founding principles … go forward and lead.”

The governor praised House Speaker Greg Stumbo and Senate President Robert Stivers for their work in passing seven historic bills, including right-to-work, prevailing-wage repeal, pension transparency and “paycheck protection” for workers, during the first week of this year’s legislative session.

Because “the pendulum goes both ways,” he said it was important to “seize the day” and get as much done as possible as quickly as possible.

For more information, please contact Jim Waters at, 859.444.5630 ext. 102 (office) or 270.320.4376 (cell).



New Education Week/NPR reporting shows Kentucky’s education spending is low

BUT, school spending in Kentucky doesn’t correlate to better academic performance

Some of the more radical public school supporters in Kentucky are complaining on social media – again – about the state’s relatively low spending per pupil compared to the rest of the nation. This time, they point to a recent article from Education Week with a map that color codes education spending in each school district across the country. Districts shaded in red and orange spend below the national average while those coded in shades of green spend above the norm. Kentucky, of course, is heavily shaded in orange and red.

But, there is a dirty little secret those spend-more-on-education-even-if-we-can’t-afford-it social media folks aren’t telling you – there is no correlation between higher education spending and better school performance.

And, Kentucky’s financial and testing data for the very same year cited by EdWeek and NPR – 2013 – proves that.

The PDF table I created, the Correlation for Spending and Math and Reading P Rates in 2013, shows total per pupil expenditures in each Kentucky school district in 2013. The table also shows the average proficiency rate in math and reading combined for each district in 2013 KPREP testing. I calculated that overall average for each district from the simple average of each district’s elementary, middle and high school math and reading scores. For districts without high schools, the average only was computed across elementary and middle school results.

I then ran a standard statistical calculation called a “correlation” to determine the relationship between those district spending amounts and their combined math and reading proficiency rates.

That correlation was -0.070, which is about as close as it gets to no correlation what so ever.

So, in Kentucky at least, spending more, or less, in 2013 didn’t have any relationship with better school performance.

This means simply throwing more money at education isn’t going to get us what we really want, which is much better performance for our students.

It would be MUCH better if our educators looked at those districts which are getting above average results with modest amounts of funding to try and figure out how to do the job more economically, not more expensively.

[Read more…]

Private school vouchers help level the playing field

An Op-Ed from the Cincinnati Enquirer offers some interesting counters to those who criticize the use of school vouchers that allow former public school students with low family incomes to attend a private school of their choice instead.

The Op-Ed’s author, Aaron Churchill, points to a number of positive impacts from vouchers such as an opportunity for students who are not being well served by their public school to seek an alternative with higher potential. He also takes issue with critics that claim voucher programs don’t really do better with these students, pointing out that 14 of 18 top quality studies do show vouchers improve results.

[Read more…]

State looks for legal help to examine JCPS collective bargaining agreements

The Courier-Journal reports that the Kentucky Department of Education (KDE) is now advertising for legal help to dig into collective bargaining contracts with Jefferson County Public Schools (JCPS) as part of the department’s ongoing and massive management audit of this troubled school system.

According to the Courier, the KDE

“…said it wants an analysis as to whether the contracts were negotiated in good faith, followed best practices and focused only on areas that were permissive subjects of bargaining, among other things.”

It certainly seems like KDE already smells smoke here and wants to see if there is a real fire behind it.

[Read more…]

Teacher staffing in Kentucky still very problematic

We have written very frequently in the past about Kentucky’s very abnormal and low ratio of teachers to other staffers in our public school system (such as here, here and here, to cite only a few examples).

The problem is that when other staff members bloat up the manning in a school, teachers’ salaries inevitably suffer.

Recently released data in the latest Digest of Education Statistics for 2016 allow us to update our ranking graph for teacher staffing in Kentucky versus other states’ and Washington, DC’s schools.

As you can see in the graph below, we have not improved the situation.

Teacher to Staff Ratio to 2014 for Kentucky

In fact, back in 1989, the year before Kentucky’s education reform act was passed, teachers in Kentucky’s public schools made up 50.1 percent of the entire school staffing and we ranked No. 43 for our staffing ratio. As of the latest data for 2014, Kentucky’s teacher-to-other-school-staff ratio shrank to only 42.8 percent.

Thus, as of 2014, Kentucky now ranks No. 49 for its very low teacher-to-total-school-staff ratio a ranking virtually unchanged since the early 1990s. And, that has bad implications both for teachers’ salaries and educational performance, too.

[Read more…]

Agency error or obstructionism?

COG LOGOIn the 25 years I served as an assistant attorney general, I reviewed and consulted on open records appeals on a daily basis. I developed a sensitivity to the most common – and often unnecessary – impediments to public access, some that arose from requester error and some from agency obstructionism. Since leaving the office I have attempted, when asked, to assist both requesters and agencies in resolving their open records disputes short of a formal appeal to the Kentucky Attorney General or the courts.

On April 27, I received a request to assist Muckrock, a Massachusetts’ group described on its website as a “non-profit collaborative news site that gives you the tools to keep our government transparent and accountable,” which was looking for guidance on the “specificity and readily available” requirement for an open records request it had submitted to – and which was denied by – the Kentucky Department of Education (DOE).

After reviewing Muckrock’s request and DOE’s denial, I immediately identified at least one of the problems with the request. Muckrock had made the often-fatal error of requesting “any and all records” that related to a particular topic for a two-year, and in one case, a five-year period.

Muckrock did not want copies of a single record or selected records related to the topic. It wanted copies of all responsive records related to that topic for the stated timeframe. Had Muckrock used the word “all” instead of “any and all” the result might have been different. The net effect is the same, but agencies dislike the phrase “any and all” and point to support for their position in conflicting attorney general’s open records decisions. This semantic distinction without a difference creates a loophole in the law which agencies often exploit in denying requests.

DOE denied Muckrock’s request for copies of all responsive record based on the “specificity and readily available requirements. . .for requests for copies of documents under KRS 61.872(3)(b)”  but indicated that it would permit Muckrock to inspect the records on site. KRS 61.872(3)(b) establishes a higher standard of specificity for requesters, like Muckrock, seeking to access records by receipt of copies through the mail. A public agency’s duty to mail copies is triggered when it receives a request for precisely described records that are readily available within the agency. If a requester prefers to inspect the records on site, he or she is only required to “describe” the records.

The Kentucky Supreme Court has approved the description in a request for onsite inspection that was “adequate for a reasonable person to ascertain [its] nature and scope.” The Court has not addressed the degree of precision required for requests seeking records by receipt of mailed copies. There are sound reasons for different description standards in requests for records by onsite inspection versus requests for records by receipt of copies by mail, but those reasons may not be implicated here.

The DOE refused to mail copies of the requested records to Muckrock but agreed to allow Muckrock to come to Kentucky to inspect the records in its office, without any stated restrictions, and thereafter obtain copies of the records.

This begs the question: If the description in the request was “adequate for a reasonable person [at DOE] to ascertain [its] nature and scope” in order to locate and compile all responsive records for onsite inspection by Muckrock, why was the DOE unable or unwilling to mail copies of these same records to the group? We hope that DOE was not obfuscating in the hope that Muckrock would withdraw its request.

The Center for Open Government will follow, and report on, developments in this case as they unfold.

–Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government. She is one of the foremost experts on Kentucky’s nationally recognized open records and open meetings laws, having written nearly 2,000 legal opinions forcing government entities to operate in the open during a nearly 25-year career as an assistant attorney general in the Kentucky Attorney General’s Office. 



Gov. Matt Bevin declares May 8-12 ‘Teacher Appreciation Week’

Governor Bevin’s proclamation says:

“Teachers are responsible for educating and guiding Kentucky’s children and the future of the Commonwealth and use their vast expertise and talents to give our children a solid foundation for their entire lives,” Gov. Bevin said in the proclamation. “Kentucky is grateful for the love and sacrifice our teachers give to make our children and communities flourish.”

We at BIPPS add our salute to the many teachers in Kentucky who do their best for our kids.

Location, location, location: What was the JCPS board thinking?

COG LOGOThe old real estate adage, “location is everything,” is roughly equivalent to the statutory recognition in Kentucky’s open meetings law that all meetings of public agencies must be held at “places which are convenient to the public.”

In a recent open meetings decision construing this legal requirement, which is found at KRS 61.820(1), the attorney general recognized that a proper meeting place “must not only be one to which the public is generally invited and may freely attend, but it must also be a place from which no part of the citizens are expressly excluded or who may be excluded by reason of not feeling they may freely attend.” 16-OMD-178, quoting City of Lexington v. Davis.

The attorney general thus reaffirmed the longstanding view that “a public meeting presupposes the right of the public freely to attend . . . .  Anything which tends to ‘cabin, crib or confine’ the public in this respect would be destructive of the right expressly provided.” 02-OMD-078, quoting Davis at 754.

In 16-OMD-178, the attorney general adopted 13-OMD-186 in holding that a city commission improperly conducted a public meeting in a private residence, a place that was not “convenient to the public,” in contravention of KRS 61.820(1). Instead, the attorney general declared, an agency must conduct its meetings in a public building to which attendees are admitted without impediment.

What, then, was the Jefferson County Board of Education thinking when it elected to conduct a recent special meeting to discuss selection of an interim superintendent on a Sunday and in a private law firm located on the 28th floor of a downtown office building which generally limits admittance to business invitees?

The board maintained that “the law office was used so as to not inconvenience district employees who would have to open a building on a weekend.”

However, convenience to district employees is not a requirement of the open meetings law; convenience to the public is.

Leaving aside questions relating to the adequacy of the meeting place as to space requirements, seating capacity and acoustics, the board’s choice was ill-advised and possibly illegal.

It’s our understanding that only three people attended the meeting to monitor the discussion of this crucial matter of broad public interest. Is any greater proof of the board’s poor selection of a meeting place required?

The board’s choice of meeting places, indeed all its decisions with respect to its public meetings, should be driven by the legislative recognition that “the formation of public policy is public business” and not by concerns for the inconvenience of district employees.

While much of the Sunday meeting was conducted in closed session – a decision we previously questioned – we remind the Jefferson County Board of Education that any “failure to comply with the strict letter of the law in conducting meetings of a public agency violates the public good.” E. W. Scripps Company v. City of Maysville, 790 SW2d 450, 452 (Ky. App. 1990).

This is particularly true when the meeting involves matters as weighty as the selection of an interim or permanent superintendent for the commonwealth’s largest school district which finds itself under siege on multiple fronts.

-Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.

Who decides what is ‘good for the public to know’?

COG LOGOWHAS-TV reports that the Jefferson County Board of Education conducted a special meeting on Sunday, four hours of which were devoted to a closed-session discussion of an interim superintendent to temporarily fill the soon-to-be vacant position currently held by Donna Hargens, who will officially step down on July 1.

Board chairman Chris Brady later confirmed that board members had discussed the “qualifications desired in a new hire,” but he was not at liberty to share those discussions. The report did not identify the legal basis for the closed session.

It’s likely that the board relied on the “personnel” exemption to the open meetings law, which authorizes closed-session discussions “which might lead to the appointment, discipline, or dismissal of an individual employee, member, or student. . .”  but expressly prohibits “discussion of general personnel matters in secret.”

Therefore, if, in fact, the board discussed the “qualifications desired in a new hire” during its closed session, that portion of the board’s discussion was improper as it goes beyond what the open meetings law allows in closed-session discussions as stated above.

The courts have consistently rejected attempts to expand the exemption beyond its narrow scope by agencies seeking to avoid “unwanted or unpleasant public input, interference or scrutiny.”

Fundamentally, the “personnel exemption” exists to protect individual reputational interests. Such interests are not implicated by a discussion of the “qualifications desired in a new hire.”

Guided by these principles, the attorney general in 2000 determined that although an agency can properly discuss the qualifications of individual candidates for appointment in closed session, it cannot discuss “the process by which the most qualified candidates [will be] selected,” because the latter discussions do not implicate reputational interests. (00-OMD-96).

While the Jefferson County school board’s closed-session discussions with candidates about their individual qualifications for the position were proper, any discussions that did not involve the candidates and/or their individual qualifications, but instead involved a general discussion of the “qualifications desired in the new hire,” exceeded the exception’s intended scope.

The gravity of the board’s apparent error and its potential consequences cannot be overstated.

In Carter v. Smith, the Supreme Court affirmed a lower court’s decision to void a contract for future employment between the retiring school superintendent and the Bourbon County Board of Education.

Citing Floyd County Board of Education v. Ratliff, the court recognized that “[t]he board may have certainly preferred to negotiate the details of [the superintendent’s] arranged exit strategy behind closed doors, but ‘the exceptions to the open meetings law are not to be used to shield the agency from unwanted or unpleasant public input, interference or scrutiny.’”

The court invoked the language of the law’s preamble declaring that “[t]he people, in delegating authority, do not give their public servants the right to decide what is good for the public to know and what is not good for them to know.”

The parents, teachers and children served by the Jefferson County Board of Education have an equal or greater interest in knowing what “qualifications [are] desired in a new hire” for an interim or permanent superintendent as the board itself.

It’s not for their servant, the board, “to decide what is good for [them] to know and what is not good for them to know.”

-Amye Bensenhaver is director of the Bluegrass Institute Center for Open Government.