Education, News

After a five-day hearing, a decision in Istation case is still weeks away

State Superintendent Mark Johnson

It’ll be more than five weeks before a decision is made on the fate of the controversial contract award to Istation to assess reading levels of the state’s K-3 students.

After a five-day hearing about the award, Jonathan Shaw, the general counsel for the Department of Information Technology (DIT) who presided over the hearing, granted the court reporter two weeks to transcribe recordings and attorneys three weeks to respond with proposed decisions.

On Friday, Tymica Dunn, procurement manager for the N.C. Department of Public Instruction, spent several hours answering questions about the state procurement process, particularly about how the criteria for the reading assessment tool changed after a Request for Proposal (RFP) was cancelled and DPI entered directly into negotiation with Istation and Amplify.

A day earlier, Amplify CEO and co-founder Larry Berger testified that he believed the evaluation criteria for the state’s reading assessment tool was changed to disadvantage his firm.

Berger contended that during the RFP process an evaluation committee ranked Amplify above Istation and two other competitors for the lucrative state contract worth millions to the winning bidder.

Amplify CEO Larry Berger

But he said the evaluation criteria from the RFP to the negotiation phase was changed to make criteria less favorable to Amplify more important.

Cost, for example, was ranked highest in the negotiation phase but carried a lower ranking during the RFP process.

State Superintendent Mark Johnson eventually awarded Istation the contract, worth $8.3 million, Amplify’s bid was much higher, around $12 million. (Both firms eventually lowered prices during the negotiation phase but Istation’s remained low-bidder).

Amplify filed a protest after Johnson awarded Istation the contract. That led to this week’s hearing to determine whether DPI acted properly in the contract award.

Dunn was relatively new in her job as procurement manager when the reading assessment RFP fell into her lap.

DPI Procurement Manager Tymica Dunn

So, when the RFP reached the brink of cancellation after an evaluation committee formed to weigh proposals couldn’t reach consensus, Dunn asked officials with the state Department of Information Technology (DIT) for advice.

She said Pattie Bowers, director of procurement for DIT, told her and a colleague that the criteria could change in the negotiation phase because it would become a new procurement.

Mitch Armbruster, lead attorney for Amplify, said changing the criteria, and then not notifying his client about it, was unfair. Berger testified that he was never told about the changes.

One interesting development during hearing involved a discussion earlier in the week about the way DPI and State Superintendent Mark Johnson learned about an evaluation committee member’s breach of confidentiality, which played a part in the cancellation of one reading assessment RFP.

It’s been alleged that someone illegally monitored a former employee’s email that was still attached to her cell phone. The former employee received email messages discussing the procurement process from a member of the evaluation committee selected to evaluate reading diagnostic tools.

A printed copy of the exchange was slipped to DPI staffers who turned it over to Johnson.

DPI spokesman Graham Wilson confirmed in an email message that DPI is investigating the claim.

“We do not know where the text message came from,” Wilson said. “We are conducting an investigation to try to find out.” Read more

Higher Ed, News

UNC Board of Governors silent on Silent Sam, calls on legislators to pass state budget

In its first full, in-person meeting since its controversial Silent Sam settlement, the UNC Board of Governors made no comment on the issue or the lawsuits and legal actions stemming from it.

Citing pending litigation, board Chairman Randy Ramsey and Interim UNC System President Bill Roper declined all questions on the matter.

Instead, at its Friday meeting, the board took aim at another contentious political issue: the state budget stalemate.

The UNC Board of Governors unanimously passed a resolution urging state lawmakers to pass the currently proposed state budget – the subject of a months’ long stalemate between Gov. Roy Cooper and Republican legislators who have been unable to overturn his budget veto.

The legislature adjourned this week without resolving the budget stalemate, with Senate President Pro Tem Phil Berger saying it’s possible no new state budget will be passed this fiscal year or next.

The board’s resolution lists the ways in which the current budget would be beneficial to the system and the potential harms of continuing without a new budget.

The resolution goes on to say that the proposed budget would provide an approximate four percent raise to faculty and staff over the next two year while the absence of a new budget “hurts UNC System institutions, faculty, students, and the communities we serve, and threatens the ability of the University to serve the citizens of the State and contribute to the economic vitality of North Carolina.”

The board’s resolution “strongly encourages all elected leaders who support and value the world class higher educational systems inNorth Carolina to move swiftly to enact House Bill 966 and approve with the provisions originally included inSenate Bill 354. Further, we call on all boards of trustees to create and approve a concurring resolution as soon as practical.”

Board member Marty Kotis pushed for the resolution — something he said had been discussed during the budget fight but seemed essential with the legislature adjourning without a solution.

Forget Rs and Ds,” Kotis said. “This is about the university system right here. This really isn’t a political issue.”

The resolution does urge lawmakers to pass the budget promoted and passed by Republican lawmakers rather than to compromise and find a solution that would allow the state to expand Medicaid, as Gov. Roy Cooper and Democrats in the General Assembly would prefer. But Kotis said that’s because the proposed budget is very advantageous to the university system and it’s not clear what a different budget would mean for the system.

“This one happens to favor the university system very well,” Kotis said. “But it’s a budget – it’s about spending money and there’s only finite resources. If you don’t pass this and someone else wants something else, things can shift. If it changes and there are other priorities, I’d hate to see that.”

Kotis said he hopes a Democratic Senator will break with with the party and vote with Republicans to overturn the governor’s veto.

I am hopeful there will be one Senator out there that puts the budget over politics and supports the university,” Kotis siad. “Maybe that’s because I’m more of a Maverick and I break ranks every day. But this is important for the university and impacts so many areas throughout the state. There are so many wonderful things for so many areas and so much that will be hurt if we don’t pass it. So I would hope there would be one person.”

Commentary, Education, Higher Ed

UNC law professor: Silent Sam deal an “investment in falsehood”

Just before the holidays, five members of the UNC System Board of Governors defended the Board’s decision to pay $2.5 million to the Sons of Confederate Veterans to house and display the Confederate monument known as Silent Sam.

The Sons of Confederate Veterans are purveyors of what historians call the myth of the Lost Cause – the story that “the preservation of liberty and freedom was the motivating factor in the South’s decision to fight” what they call “the Second American Revolution.” The group insists that “the war was not fought in order to keep African Americans enslaved.”

It stands to reason that these are the historical claims Silent Sam will bolster in any museum they build with the $2.5 million.

The five Board members said that this was the best deal they could strike to try to resolve what they saw as “a deeply divisive and personal issue.”

“Divisive?”  I suppose the centrality of slavery to the Confederate cause remains divisive in some circles.

But “personal?”

There is nothing remotely personal about this issue.

To see why, think about a few hypothetical $2.5 million settlements the university might reach with others to help them tell their story.

  • The university settles litigation with a soft drink company by setting up a fund to support a series of conferences about how sugary sodas do not contribute to the obesity epidemic.
  • The university settles litigation with an anti-vaccination group by setting up a fund to finance a social media push against childhood immunizations.
  • The university settles litigation with a religious institution by funding a geology museum proving that no rock can be more than 6,000 years old.

How would the public react to any of these expenditures?

With near-universal outrage, and for good reason.  However “divisive” the causes of obesity, the merits of vaccinations, and the age of the Earth may be in some quarters, these university expenditures would be serving untruth.  They would be doing the opposite of what a research university does, which is to study things carefully, using rigorous standards of inquiry, and thereby to increase knowledge and uncover truth.

There is nothing “personal” about whether the perpetuation of slavery was central to the Southern cause in the Civil War.  It is something that brilliant historians – including many in the UNC System – have devoted their lives to documenting.

This is one of the things that is so deeply disturbing about the decision of the Board of Governors to pay a huge sum to an organization to preach the myth of the Lost Cause.  It’s a $2.5 million investment in falsehood.

To watch this unfold is devastating.

But it’s nothing personal.

Eric Muller is the Dan K. Moore Distinguished Professor of Law in Jurisprudence and Ethics at UNC-Chapel Hill.

Education

State Superintendent Mark Johnson answers Department of Information Technology questions. He blames agency for emergency purchase.

State Superintendent Mark Johnson contends “inaction” by the N.C. Department of Information Technology (DIT) forced him to make an “emergency purchase” for services from Istation to allow school districts to conduct mandatory mid-year reading assessments of the state’s K-3 students.

“Due to NCDIT’s actions (blocking the diagnostic and then inaction (taking more than five months, thus far, to conduct its review), there was no reading diagnostic in place and educators were justifiably demanding a solution,” Johnson said in response to DIT questions about the emergency purchase.

Johnson’s claims were made in response to a letter the N.C. Department of Public Instruction (DPI) received from DIT on Friday warning that Johnson may have violated state law by not getting DIT approval before making the purchase.

Patti Bowers, DIT’s chief procurement officer, also warned that Chief Information Officer Eric Boyette may exercise his authority to cancel or suspend the contract because Johnson did not receive approval to make the purchase.

State Superintendent Mark Johnson

Johnson was given until 10 a.m., Tuesday to answer five questions about the emergency purchase worth more than $928,000.

Click here to see Johnson’s responses to DIT’s questions.

Johnson contends he had little choice in executing the emergency contract because the state’s Read to Achieve law requires that a diagnostic tool is in place to assess reading levels of K-3 students.

He also noted that mid-year assessments are underway and that more than 500,000 tests are scheduled to be given this month.

“If there is no reading diagnostic in place, then DPI, the State Board of Education, and our public schools will be in violation of state law and an entire class of students will be deprived of benchmark statistics used to guide decisions on how to better meet their needs,” Johnson said.

An administrative hearing on the merits of the controversial $8.3 million, three-year contract award to Istation is currently underway. The hearing is scheduled to conclude on Thursday, but it’s doubtful a decision will be made this week.

DIT Chief Counsel Jonathan Shaw is the presiding hearing officer. Boyette will make the final decision in the case.

Amplify, an Istation competitor whose mClass assessment tool had been used in North Carolina’s K-3 classrooms for several years, filed a protest over the summer contending the contract was unfairly awarded. In August, the DIT granted Amplify a temporary stay against the use of the Istation reading assessment tool.

Shaw upheld the stay in December, contending the “evidence and arguments of record” are sufficient to indicate that DPI failed to comply with state law and information technology procurement rules and “jeopardized the integrity and fairness of the procurement process.”

Johnson has claimed that the procurement process was tainted. He contends, among other things, that some committee members breached confidentiality and were biased in ways that tilted the evaluation in favor of Amplify and its mClass reading assessment tool previously used by the state.

Many teachers have been critical of the switch from Amplify’s mClass to Istation. They have questioned the procurement process and contend Johnson ignored the recommendations of an evaluation committee that ranked mClass over Istation.

The reading diagnostic tool is a companion to the state’s signature education program, “Read to Achieve,” which was launched in 2013 to ensure every student reads at or above grade level by end of third grade.

The results haven’t been great even as North Carolina has spent $150 million on the initiative. More than half of the state’s children in K-3 are still not reading at grade level.

Istation has been training teachers to use the reading diagnostic tool for free. It said last month that more than 180,000 North Carolina students in grades K-3 have been assessed using its reading diagnostic tool.

 

Commentary, Higher Ed

UNC’s Silent Sam settlement, a bad deal executed very poorly

The Daily Tar Heel, a student-run newspaper, is in the midst of a serious role reversal with the adults over at the UNC Board of Governors.

That much is clear following the paper’s inherently logical suit charging the UNC board violated our state’s open meeting laws when they negotiated a $2.5 million settlement with the Sons of Confederate Veterans to take Silent Sam off their hands, in addition to a $74,999 payment intended to keep its protesters off an already simmering campus.

The paper’s management corporation is asking the court to nullify the agreement, an outcome virtually everyone not currently seated on the UNC Board of Governors or in legislative leadership would prefer at this point.

Boards have the luxury of discussing such matters with their attorneys in private, although it’s another matter for several board members to design and sign a deal in private without even a public notice.

The idea was bad, and the execution was even worse.

Fittingly, WRAL’s Capitol Broadcasting Corp. slammed the university system board in an editorial Tuesday.

The courts should drop this dismal deal, and the UNC Board of Governors—one of North Carolina’s leading lights for humiliation these days—should sit the next few plays out.

From the editorial:

The reporters and editors at the Daily Tar Heel in Chapel Hill have been doing their job in examining the Silent Sam consent agreement between the University of North Carolina, the UNC Board of Governors and the Sons of Confederate Veterans. It’s a good thing. They are digging to answer the basics: Who did what, where, when and why.

The DTH has also been working to uncover the how. Did the procedures the UNC Board use follow the state’s Open Meetings Law?

The DTH investigation, so far, raises disturbing questions about a lack of basic due diligence by the board and the university.

The newspaper, a non-profit student-run publication that’s been around for 127 years, has gone to court to nullify the consent agreements. The two deals with the Sons of Confederate Veterans that pays the group $74,999 to not protest on campus and $2.5 million to shelter and display Silent Sam were reached “in total secrecy in violation of the Open Meetings Law.”

In addition, the lack of transparency leads to wonder why and how could a university pay anyone to give up their 1st Amendment rights? It goes against the most basic precepts for freedom of inquiry that quality universities stand for.

Will the university now pay other groups to stay off campus? This deal sets a terrible precedent.

The most basic due-diligence on the part of UNC-Chapel Hill and the UNC Board of Governors clearly has been neglected.

The DTH revelations are raising questions about whether the key party to the deal, Sons of Confederate Veterans, violated tax and campaign spending laws. State Attorney General Josh Stein, Secretary of State Elaine Marshall who oversees non-profits — along with the state Revenue Department and state Board of Elections, all must look into these serious matters.

The rush to approve anything, at any cost, to get rid of the Silent Sam issue has done just the opposite. In fact, Superior Court Judge Allan Baddour, who signed the initial consent judgment and order is reexamining his approval and will be holding a hearing on Feb. 12 to further look into the deal.

It is time for the courts and regulators to say enough-is-enough. Terminate the deal. University officials should be ashamed of themselves.