GOSHEN - A grand jury that investigated student attendance, athletics eligibility and the credit-recovery APEX program at the Newburgh school district has found “systemic failure” in the district’s policies that include grade changing, manipulation of attendance records, and allowing student-athletes to participate in sports even though their absences made them ineligible.

“The report summarizes the lack of procedures and oversight that allowed: (1) Newburgh Free Academy virtually limitless manipulation of student-athlete attendance records in order to conceal violations of Newburgh Enlarged City School District attendance policies; (2) obfuscation of the chronic absenteeism among the Newburgh Free Academy student body that went unremedied for years; and (3) the misuse of the APEX Online Learning software at Newburgh Free Academy in order to artificially increase graduation rates,” the grand jury report says.

APEX is a computerized program that allows a student who is failing a class during a quarter to take online instruction and testing for “credit recovery,” to improve his grade.

“This was a complete systematic failure from the top down, and it needs to be remedied,” Orange County District Attorney David Hoovler said Thursday during a news conference at which he released the grand jury report.

While acknowledging that the district has, since May 2018, “taken steps to tighten” the attendance policy in general and with regards to extracurricular activities, the grand jury noted that implementation still seems lacking. Teachers and their union have also sought clarification from the district on how to properly run APEX, the grand jury reported.

The 87-page report does not include criminal charges, Hoovler said, in part because no one person was solely responsible for what went on, and because there was a lack of training for staff. The grand jury wrote that it intended for the report to be written in a neutral manner “so that the facts can speak for themselves.”

The investigation examined attendance records as far back as 2012, and the grand jury report cites examples dating back to the 2013-2014 school year. The absenteeism aspect of the probe focused significantly on student-athletes, in part because investigators could verify many ineligible students’ sports participation using media reports of games and box scores, Hoovler said.

“Some of the facts you will see in this report are disturbing, and they cry out for something to be done,” Hoovler said.

Student-athletes and attendance

A data analyst from the Hudson Valley Crime Analysis Center found several troubling patterns in the attendance records. There were student-athletes who had multiple unexcused absences and instances of tardiness in the off-season before and after their sport, but none during the season, the grand jury noted. District policy required that students with three unexcused absences in a quarter must miss the next sports event or game, and that they miss the next event or game for each subsequent unexcused absence in a quarter.

Some coaches were lax about checking attendance records for eligibility, and administrators didn’t enforce the policy, resulting in “triple digits” of students who should have been ineligible playing sports, according to Witness C in the report.

“Nobody seemed to take full ownership of their responsibility to not only check student-athletes’ attendance, but to ensure the accuracy of those reviews,” the grand jury found.

Analysis of records showed that 65 of the 110 students whose records were examined averaged 100 or more class absences per year, including one student with 2,276 class absences in four years of high school.

There were people inside the district and on the school board who tried to address the “open and obvious attendance problem,” the grand jury said, but “for many years, both of these attempts were to no avail.”

This, despite a March 6, 2011 Times Herald-Record story outlining the attendance scandal around Newburgh’s 2008-2009 state championship varsity boys basketball team: Despite hundreds of absences each for the team’s starters, they never missed a game.

“There still is no oversight. I don’t believe there is still any oversight. Nobody is watching the store,” the grand jury quoted from Witness H.

The school administration conducted an investigation into student-athlete attendance issues, the grand jury wrote, citing Witness D, and on March 8, 2017, it was announced at a school board meeting “that it had been determined that there were no attendance issues warranting further action.” Witness D provided more evidence, the grand jury said, but the district took no remedial action.

In the 2016-2017 school year, the grand jury, wrote, “several student-athletes” shared a pattern: excused absences for illness, followed immediately by exemptions to participate in a sports contest, followed by more excused absences for illness. The grand jury wrote that when presented with evidence of this, Witness G responded, “If he was sick ... he’s eligible to compete.”

The district revised its attendance policy on May 22, 2018, requiring 91 percent attendance with both excused and unexcused absences counting, with a five-day window for students to clear an illegal/unexcused absence.

The grand jury wrote that Witness B, a data clerk in the attendance office, said that it was only after being shown the policy by the grand jury that the witness learned of the new policy.

The grand jury also took aim at the state Education Department, which was unresponsive to a complaint filed in 2017 and to repeated requests and inquiries from county investigators.

“One would think that state oversight and intervention would help remedy the situation,” the grand jury wrote. But evidence showed a lack of response from the state Education Department: No response to teachers’ requests for help with the attendance issues, failure to cooperate or assist with the District Attorney’s investigation, failure to return two voicemails left by an investigator for the state agency’s Director of Education Finance.

APEX grade overrides

“There is always pressure to graduate, but yes, fourth quarter, when everyone is e-mailing you, guidance counselors are showing up, ‘where are they, how far are they in the program, are they going to graduate. We have numbers. We need to know.’ Yes, there was lots of pressure.”

So begins the grand jury report’s section on the APEX program, quoting a district employee who testified.

Data analysis of the records showed that dozens of APEX students completed coursework for 45-day quarter in under two hours, including six who did so in 20 minutes or less. APEX Best Practices described “unusually short assessment durations” as characteristic of dishonesty, especially coupled with large numbers of teacher-entered scores for computer-scored assessments” and sudden increases in scores.

Over two years, 33 teachers made a total of more than 1,000 grade overrides to scored assessments, the grand jury found, including one teacher who overrode grades 325 times, and another who did so 275 times from 2016-2018.

“This of itself is a program flaw, and should not be allowed,” Hoovler said of overrides.

Teachers who testified said they made overrides when they were “working through” questions with the students.

The grand jury found that teachers allowed students an unlimited number of chances to take quizzes rather than the best-practices recommendation of three times, in an attempt to increase the students’ scores.

Hoovler said the problem is not with APEX, but with the flawed way in which Newburgh implemented the program.

The grand jury report recommends numerous corrective actions for the district, including independent monitors for attendance and APEX, comprehensive revision and consolidation of attendance and eligibility policies, and thorough training for teachers and administrators involved with APEX.

Hoovler said the investigation began in May 2017, after complaints about athlete attendance were made to the state Department of Education and his office. After repeated, fruitless calls to the state Education Department for updates, Hoovler said, his office continued to pursue the investigation on their own.

That ultimately led to search warrants in October and December 2018, and the grand jury proceedings that began Jan. 10 and concluded March 29.

The grand jury heard testimony from 15 witnesses, each of whom was granted immunity in keeping with state Criminal Procedure Law. The grand jury examined 31 exhibits containing tens of thousands of digital data entries and hundreds of pages of attendance records.

Hoovler said grand juries have three purposes in New York: investigating malfeasance or misfeasance; determining if a public official has acted wrongly; and issuing reports and recommendations.

“In the end, the evidence of the report speaks for itself,” Hoovler said. “I urge the public to read the report in its entirety.”

hyakin@th-record.com

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To view the news release and the grand jury report, visit the DA’s Office website at www.orangecountygov.com/263/District-Attorney