A settlement w/o a settlement: JCPS got played

Bruce Maples (bruceinlouisville@gmail.com)
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Let me lay out a scenario for you.

You are negotiating a contract between your company and another company. The other company has threatened a hostile takeover of your company, but after much blowback from shareholders, has backed off and is now talking about a partnership.

You go back and forth on the terms, until you get to a so-called “final offer.” (There’s almost never a true “final offer” – it’s a negotiating ploy.) Some of your leadership thinks you should accept the partnership offer, but you aren’t so sure.

“What’s this clause about ‘solutions to be determined’ on page 3?” you ask. “And this section about ‘binding arbitration and single-side veto power’ on page 10?”

“Those are issues we’ll have to work out after we sign the agreement,” you are told. “Just go ahead and sign, and we’ll figure those out afterward.”

“But it says YOU have the final say. How is that a partnership?”

“Just sign, and be quiet.”

::

If you are thinking “no way would I sign a partnership agreement with all those unknowns and that veto thingie,” you would be at least as wise as the average negotiator.

But that is what JCPS just did. They signed a settlement agreement with the state Board of Education that leaves much to still be decided, that has uncertainty big enough to drive a truck through, and that gives Wayne Lewis veto power over large amounts of the JCPS organization and plans.

Don’t pay attention to the smiles and pleasantries put forward by some. When it comes to the settlement that JCPS agreed to, the conclusion is obvious: JCPS got played.

::

My thinking about the proposed takeover of Jefferson County Public Schools by the state has boiled down to these seven points over the past few months:

  • JCPS has problems, and some of them are significant.
  • The new leadership, and the recently-elected board, have plans to deal with the problems, and need to be given a chance to carry out those plans.
  • Therefore, the state takeover was, at the least, premature.
  • In addition, though, there is suspicion that the players at the state level have an agenda that is more than “good public education” – that, in fact, their goal is to implement charter schools and to privatize our public education system, for various reasons. Ultimately, this would harm JCPS, not help it.
  • Therefore, the correct outcome was for the state to drop the idea of a takeover completely, and to figure out a way to assist JCPS leadership in executing their plans, without assuming any sort of control for now.
  • If, after two years, the plans had not made a difference (as shown by a fair audit by an unbiased third party), then return to the idea of a state takeover.
  • And if the state was not willing to accept the solution of assistance, then fight it out in court to keep that hidden agenda from being implemented.

Frankly, I was not sure that JCPS could achieve all of those bullets in this round of the negotiations, but I thought that if they stood firm, they would eventually win in both the court of public opinion and in the actual courts.

When there was word of some sort of compromise, I was hopeful. It was obvious that the state had gotten a large amount of blowback, and they realized that a full takeover could actually hurt them at the polls this fall. Perhaps there was a chance at state assistance only – or, that the things that JCPS had to agree to would not include giving up local control – OR, at the very least, JCPS would yield control in some lesser ways that would still not come back to haunt the school system.

That was not what happened.

Instead, the final agreement includes two significant provisions that should have meant NO votes across the board.

The CAPS

First, there are 58 areas (not issues, areas) that require corrective action plans, or CAPs. The school system and the state have 15 days to come up with CAPs for each of the 58 areas, and to do this collaboratively.

This is not possible. True collaboration takes time, time, and more time – much more time than doing something alone. Why do it, then? Because often, well-done collaboration can yield solutions that are superior to what one person can come up with. But it is NOT efficient.

To agree to produce 58 CAPS in two weeks—with a holiday weekend stuck in there—is a capitulation of the first magnitude. A month? Maybe. Some now and some later? Perhaps. But all 58 in two weeks? You just gave away the first half of the store – because of the second concession.

The veto

What if the state and JCPS cannot reach agreement on one or more CAPs? What if, for example, the state says that the solution to this particular area of concern (remember, entire areas) is to subcontract it to a for-profit company. Like, after-school tutoring, say. Or, challenges at a certain school or set of schools.

“Here’s an area of concern that needs a CAP. We think the best solution is to make this a conversion charter school.” You don’t think that’s lurking in the background? Then you haven’t been paying attention.

And guess what? If the state and JCPS cannot agree on a CAP for a given area of concern, Wayne Lewis is The Decider. Not arbitration, or a third party, or even a bunch of lawyers. The person who insisted that JCPS was so broken that he and the state had to take it over, now has final say on how problems are decided.

Why did four board members vote for this?

The million-dollar question. (As in, how many millions of the JCPS budget will be used for the CAPs that Wayne Lewis puts in place?) I wasn’t in the room, so I can’t say for sure. But I am willing to bet that it was for one or more of the following reasons.

Fear of something worse. If JCPS hadn’t settled, then the whole thing would have gone to a hearing in front of the state board of education. As much as the state folks like to talk about “allowing people to be heard,” we all know what would have happened. In the end, the BOE would have agreed with Lewis, and off to the courts we would go.

Would JCPS lose in the courts? Frankly, I don’t think so, considering that there are other school systems that are actually doing much worse. And, it would have been interesting to see what might have popped up in discovery.

But we’ll never know, because those four members didn’t want to find out. Lewis suspected this would be the case; he played his cards betting that people would fold,  and he was right.

Fear of political fallout. I mentioned “discovery” above. That process wouldn’t apply only to the state folks; the JCPS leadership and board would also have to open up the kimono. Perhaps none of them have anything to hide. But it’s also possible that some have political aspirations beyond being on a local school board, and who knows what might come out in the legal fight.

I suspect, frankly, that some people at the state level were more worried about this than people on the JCPS board. But, since there is already suspicion of motives of the state people (see above), there was actually less risk for them. Perhaps (surmising here) they suspected this, and played against this fear as well.

Exhaustion, tiredness, whatever. There is no doubt that fighting the state takeover out to the bitter end would have taken a huge amount of time and emotional energy. And these are not full-time positions; people have lives outside of serving on the school board.

I get it. I do. But there are times when, if you’re going to be a leader, you have to suck it up and take a stand, sometimes over a long period of time. That’s part of what you sign up for when you run for office. There’s a reason it’s called “public service” and not “pad my resume.”

The dangrous cliche

Now that those four members of the board have accepted the settlement even with the glaring problems mentioned above, a number of people (including a number of leaders) are saying “Glad that is behind us.”

In this case, the cliche is not only a cliche – it is a dangerous statement. Because this is NOT behind us, at all.

We are going to see ongoing fallout from this. There will be changes, some sudden, some shocking. There will be angry parents and teachers, and board members admitting they are powerless to do anything. There will be decisions out of Frankfort that will harm our local schools, and that will harm the very concept of public education.

Will it all be bad? No, of course not. The people pushing for charters and privatization are too smart for that. There will be good stories to tell, and you can be sure we will hear them.

But if you watch, you will see things happen in Jefferson County Public Schools that you know are part of this larger privatization agenda. And you will hear people say “I never thought they would do THAT.”

And you will think to yourself,

“We got played.”

–30–

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