Updated June 16, 2016

Three major education reform organizations —the National Alliance for Public Charter Schools, the 50-State Campaign for Achievement Now and the National Association of Charter School Authorizers — released a set of "hard-hitting" recommendations to reform how full-time virtual charter schools are authorized, enrolled and funded. It was a bold move, one the organizations said could significantly curtail how these charters, many of them for-profit, do business. The motive for these groups deciding to issue their call for better monitoring is compelling. Studies have documented that many virtual charter students essentially learn no math and acquire less than half the amount of reading in a year's time than their traditional public school peers. The political reality of changing how virtual charters operate and are governed on the state level is more complicated. Former Tennessee state education commissioner Kevin Huffman's frank account of his dealings with a chronically failing virtual charter gives a true appreciation for the difficult road these reform initiatives might face.

Kevin Huffman served as Tennessee’s education commissioner from 2011-2015, and in this essay outlines problems he experienced while overseeing the Tennessee Virtual Academy, operated by K12 Inc. To read K12 Inc.’s full response to this essay, please click here.

I n April 2011, a short while after I became Tennessee’s education commissioner, the state legislature passed a bill allowing “virtual schools” to open in Tennessee. The concept was forward-looking: Allow public school districts, at their discretion, to open and run online schools.

These e-schools could, over time, take advantage of technological advances in instruction, and they could serve children who couldn’t be served properly by traditional brick-and- mortar schools.

The bill passed amid a flurry of end-of-session horse trading. Some legislators expressed concerns about virtual education generally, and others were worried that the bill included for-profit operators, but as often happens at session’s end, it chugged along largely under the radar. I was new and not fully looped in, but my educational philosophy has always been platform-agnostic; I was less concerned about the kind of school, more concerned about whether the school was good.

From these modest beginnings and with the help of an unscrupulous operator, an inept school district, and the generally screwed-up politics of education, the worst-performing school in Tennessee opened and remains open to this day.

It remains one of the biggest failures that happened on my watch.

Year one: Abject Failure

The legislation allowed any school district to establish a virtual school, and most legislators, in good faith, envisioned local districts establishing niche programs for kids who were being bullied or seriously ill or had other special needs. A few districts did just that, enrolling a couple dozen kids here or there and experimenting with online courses.

It was quickly evident, however, that the bill’s main beneficiary was K12, Inc., a for-profit company running online schools and programs in multiple states across the country.

While K12 was not itself eligible to open a school, it could get in the door by finding a school district willing to host and “open” the school. Geography was irrelevant; since the school was virtual, it could enroll kids anywhere in Tennessee.

Furthermore, because Tennessee — like most states — weighs its school funding formula to give more money to lower-wealth areas, a virtual school could game the funding system by opening shop in a district that receives a larger portion of state funding. Luckily for K12, the perfect host awaited.

Union County is a small rural county in East Tennessee, 40 minutes and a different world up the road from Knoxville. There is almost no infrastructure in Union County — just a series of small, dying ventures off the highway. The county schools are oddly isolated from the state mainstream. When I visited, I found fundamental misunderstandings about state rules and practices that didn’t exist in other districts.

As sometimes happens in small and isolated communities, the school board and district administration were an absolute disaster. In 2011, the district was in dire financial straits, having struggled to manage funds and oversee its superintendent. In the ensuing two years, the district would pinball between two superintendents with threats of litigation and a divided administration driving hiring and firing. It was difficult to remember who was in charge without looking it up. Looking it up was difficult because the website wasn’t updated.

For a company like K12 Inc., Union County, Tennessee was a godsend. Mismanaged, nearly bankrupt, and yet pulling in per-pupil dollars well above the state-funded average, it was the perfect host for a statewide virtual school. K12 seized the opportunity, offering Union County a small cut of the profits from enrolling other districts’ students, and the school quickly opened its virtual doors in August 2011.

The Tennessee Virtual Academy, TNVA as it is known, hired a principal who sat in Union County and managed the school. The school hired licensed teachers who lived all over Tennessee, helping students via phone and email. The curriculum came out of corporate headquarters, cribbed from the virtual schools the company ran in other states.

Unsurprisingly, TNVA was beset by operational challenges from the outset. The school lacked the systems to quickly and effectively enroll students, leaving some kids dangling while their parents complained to the state. It underestimated the challenges of identifying students needing special education services. TNVA struggled with the basic paperwork required of all schools in the public school system. (Read K12 Inc.’s response to this article, and its account of the state’s efforts to close the Tennessee Virtual Academy, right here)

While these struggles raised some eyebrows, they also could be chalked up to growing pains. After all, the school had opened in a very short window, was working in a new state and new school district, and was attempting to serve kids all over the state.

As commissioner, TNVA was most visible to me through the complaints of superintendents in other school districts. K12 Inc. was running radio ads in major media markets encouraging kids to sign up for the school, and numbers were booming. Superintendents around the state claimed that students were dropping out of their districts, enrolling in the virtual school, and receiving lousy services.

Some told tales of students leaving district schools for TNVA, only to re-enroll later, discouraged and even farther behind academically. Union County, for its part, complained that the other districts were trying to block students from enrolling by slow-walking the paperwork, or out-and-out telling parents they weren’t allowed to leave their home districts. Everywhere you looked, fingers were pointed.

I was skeptical of the other districts’ complaints. From my vantage point, superintendents often complained when parents looked for better schooling options because the district lost the money that traveled with the students. I had become, to my detriment, overly cynical about these complaints. I wanted to wait and see how the school year played out.

The year came and went, marked for me with controversy around teacher evaluations, our federal No Child Left Behind waiver, charter school expansion, and the other marquee issues of education reform. Every day brought another bruising political battle, and I was burning through my political capital at an alarming rate. As testing results rolled in, I was anxious for some good news.

Tennessee’s testing results weren’t just good, they were great. Across the state, students made gains in every subject area and at every grade level. Teachers, principals and superintendents were breathing a sigh of relief. We celebrated the districts and schools with the best results, and started to plan for the next year.

But there was a major hiccup in Union County. The school district laid an egg and was designated “in need of improvement” under our federal waiver. Worse yet, the Tennessee Virtual Academy had received the lowest possible growth score — a 1 on a 1-to-5 scale for our value-added system, which measures teachers and schools not by students’ final scores but by how much they have grown in a year.

As I looked deeper, I became increasingly alarmed. Since there was no legislative limitation on growth, the school’s enrollment had surged to around 2,000 kids. It was not only a low-performing school, it was one of the biggest in the state and it was growing rapidly.

The TNVA had single-handedly doubled the size of the Union County school district, and this single school was on track to become larger than many districts in the state.

Tennessee historically has struggled in educational outcomes, but it was and is a national leader in data. Value-added scoring, seen by many as a fairer way to gauge academic progress because it takes into account where the student started, was invented in Tennessee and has been refined over two decades here. The state was one of the first to produce a sophisticated online public report card providing reams of data about schools to parents and the public.

As the TNVA data became more granular, the extent of the academic disaster came into stark relief. The school’s value-added score was dead last – out of more than 1,600 schools with scores – in the state.

K12 Inc. and Union County’s Tennessee Virtual Academy was, quite literally, the worst school in Tennessee.

Year two: Clipping TNVA’s Wings

Inside the state education department, we were alarmed. We had two main strategies. First, we would try to get TNVA and K12 to improve its outcomes. We had no real leverage since it was technically a district-run school, but we could at the very least call them to the carpet, push them for answers and solutions, and offer supports. After all, Union County was woefully unequipped to lead the charge.

Second, we needed legislation to curb the school’s growth and set up an end-game if the school continued to fail. The virtual school bill needed a backstop.

Our first meeting about the school’s performance was a disaster. K12 brought its lobbyist rather than academic specialists. The lobbyist refused to acknowledge that the school had struggled. Instead, he pointed to the school’s self-administered internal tests, and claimed that the students were doing fine.

He disputed the state test results, and didn’t understand value-added scores. We showed him the official state data, and he just claimed it wasn’t valid. The lobbyist brought his own (less reputable) data and refused to concede the obvious point that TNVA was failing.

The meeting depressed me; if the school would not concede that it was failing, there was no hope that it would make changes in order to get better. Amazingly, after finishing dead last in Tennessee in growth, K12 seemed intent on staying the course.

I had no interest in pulling my punches, and when reporters reached out asking about the Tennessee Virtual Academy, I told them the results were terrible and unacceptable. This seemed as plain as day. Nonetheless, the statements got me in hot water.

K12’s high-priced Tennessee lobbyists went into overdrive, complaining bitterly about me to the governor’s staff and to legislative leaders. A couple of Democratic legislative candidates used the school’s results in campaign literature. The lobbyists then used the campaign ads to take shots at me to Republican leaders, calling me a loose cannon who was undercutting Republicans.

Inside the department, we focused on part two of our strategy — legislative action. We proposed language that would bar virtual schools from growing if their results were bad. More importantly, we suggested that any school that scored at the lowest level for two consecutive years could be closed down by the state.

Our logic was simple: If K12 Inc. was in denial about its results, this bill would force it to figure out how to improve results or face closure. At the time, my belief was that K12 Inc., with all of its financial resources and its national footprint and data, could surely improve its school if it was so inclined. We could give them two years to get it together.

We introduced the bill and K12 Inc. was irate. The company ramped up its lobbying efforts, working all angles. At the national level, K12 sponsored Republican Governors Association events, which meant they gave money, and their CEO Ron Packard and lobbyists wandered freely at conferences. Gov. Bill Haslam and his staff found themselves cornered by K12 Inc. at various events. K12’s sponsorships similarly gave them access to me at education conferences.

In Nashville, they increased their lobbying muscle. I was called to a meeting with several executives from national headquarters and a D.C.-based lobbyist — a well-known man whose name opens doors. (K12 said it could not respond or verify Kevin Huffman’s account of this meeting without knowing the lobbyist’s name; Huffman declined to identify him) My blood pressure started to rise as the lobbyist patiently explained that I was confused about the data and results. Speaking to me as if I were a sweet but confused child, he said he wanted me to hear the true story. When K12’s executives spoke, they used the same talking points as their other lobbyists.

I felt myself start to lose my temper.

Why, I asked, am I constantly talking with K12’s lobbyists instead of the people who might actually try to make the school better? Is anyone doing anything to make the school better? Have any of you actually been to Union County to meet with the incompetent local leadership that you are partnering with? And don’t you think it’s problematic that you have this many problems with me — one of the most pro-market, pro-choice state commissioners in the country?

It was one of only two or three meetings during my tenure in which I decidedly lost my cool. One staffer came down the hall to peek in at the end of the meeting to see why I was so agitated.

The bill to limit the growth of virtual schools was a battle. For starters, TNVA did indeed have a number of high-need students with tough circumstances, and a virtual school was a tremendous resource for these folks. K12 highlighted the stories of children with chronic illness or students who had been bullied at their home schools. These stories were real and the families’ angst and needs were real. The traditional system was failing them and virtual education had thrown them a lifeline.

Unfortunately, though, this was a very small percentage of TNVA’s students; they were the sympathetic face of an otherwise failing venture.

After a couple of months of negotiations, the legislation passed, with minor language adjustments. None of us would have guessed it at the time, but these language changes would ultimately undercut our ability to close the school.

Instead of a two-year, forward-looking time frame for measuring virtual schools, the legislation gave virtual schools three years prior to facing closure. However, the three years were inclusive of the past year’s results. No problem, we figured— that’s essentially the same thing as we proposed.

It was now May of 2013, and the school’s second year came to a close. The school failed again. It was again, not only a Level 1, but near the bottom of the state rankings.

Strike three?

The school would now enter a death-watch year in 2013-14. If it scored another Level 1 on growth, we would have the opportunity to close it.

K12’s first strategic maneuver was to attempt a work-around. The company was working on a deal with another low-wealth, rural Tennessee county — Campbell County. Since the location of a virtual school is irrelevant, if K12 Inc. simply opened up shop in a different school district, it could theoretically transfer all of the kids, start the “failure clock” again, and proceed as if nothing had happened.

The Campbell County mayor and others lobbied hard — they had been promised both money for the school, and also a free curriculum for adult education that the mayor was anxious to tout to the citizenry.

It was a clever effort and a genuine legal loophole. The mayor and leaders in Campbell County saw K12 as a financial resource, while we saw it as a means of evading accountability. The school never opened; the district had timing and quality issues with the paperwork, and K12 was forced to look to different strategies.

In the process, though, I added to my list of enemies. The folks in Campbell County were livid, and they blamed me for costing them money.

We told K12’s lobbyists that I only wanted to talk about the school’s performance and hear how it would get better. I was sick of talking about politics. And so, Packard, the CEO of K12 Inc., came to visit me in Nashville without lobbyists — a peace offering of sorts designed to show that K12 was serious about taking on academic improvements. He asked for advice. He took notes. It was a very positive meeting. I maintained hope.

Ultimately, the meeting was irrelevant. Packard resigned his leadership in January 2014. The TNVA proceeded on the same course.

TNVA failed again in 2013-14. It was a Level 1 for the third year in a row. It was eligible for closure.

Union County pushed hard for the school to have one more year. Our state data team ran an analysis on the performance of new students compared to returning students at TNVA, and found a ray of hope. The school’s new enrollees were performing abysmally — they were a low Level 1. Returning students — in their second or third year at the school — performed about average, a Level 3. There was an argument that the school could serve kids adequately if the kids had time to adjust.

The problem, though, was that TNVA hemorrhaged kids, with the highest turnover any of us had ever seen at a school. So, while one could argue that kids just needed time to adjust, the school bled out so many failed students each year that it obviated the good.

We huddled internally. Union County and K12 had ginned up an intense parent lobbying campaign and the governor’s office and department of education were getting letters and emails begging to keep the school open.

In the department, I consistently preached a mantra of being data-driven, and doing what the data told us. I overthought this and I got too cute.

I thought we had a potential compromise solution: We would let the school stay open for another year as long as it did not enroll any new students. This way, the kids who were likely to do OK — the returning students — would stay enrolled and would not need to hunt for a new school. But unless and until the school improved, it would not enroll new students. Jimmy Carter, Union County’s superintendent, readily agreed. This was a fair idea.

If you are still reading this article, you likely can guess that this did not happen. We discovered that Union County had already enrolled hundreds of new students, despite knowing the school was subject to closure. When we asked them to un-enroll these students, they refused, holding a school board vote and posturing that, damn the torpedoes, they were going to serve these kids (almost none of whom were actually Union County residents).

The state has limited and clearly delineated powers, and un-enrolling kids from district schools is not on the list. We had only the blunt instrument of closing the school — we had no ability to control enrollment. By the time we discovered that the district had enrolled hundreds of new kids, the school year was about to begin. If we closed the school, we would have to throw more than a thousand families into a panicked search for options.

And so we blinked.

Closing the school, for real. Right?

We sent Union County a letter announcing that the Tennessee Virtual Academy would stay open for one more year, but it would be closed at the end of the 2014-15 school year. We were giving all of the families a one-year notice so they could make other plans.

We portrayed this as decisive action, even though there would be a one-year lag time. Yes, K12 would have one more legislative session to try to strong-arm legislators to keep the school open, but we were confident nobody would fight for a school that habitually failed. My guts churned, though. We could try to spin it, but the reality was: I had been played.

As the new school year began, supporters of the TNVA were working hard behind the scenes to demonize me on a more personal level. An anonymous right wing blog mysteriously switched positions and began to champion the virtual school cause. Union County’s state senator looked for every opportunity to slam me publicly.

Supporters also threw around a new marketing claim: TNVA was the “most improved” low-performing school in the state. Around 100 schools in Tennessee had scored at a Level 1 in growth for three years in a row. Since TNVA had been (by far) the lowest-performing of these schools at the outset, it had improved more than the others. Voila — the most improved school!

Parents at the school filed a lawsuit claiming that the state lacked the power to close the school. I laughed when our head of policy told me. After all, we had passed a bill specifically to give me this power. This case was a no-brainer.

As fate would have it, my own tenure came to a close before TNVA’s. After the governor was re-elected in November 2014, I announced my own resignation, effective January 2015. It was time for me — I had taken too many bullets and was too full of holes to keep pushing aggressive reforms. Our student achievement results were going up, but it was time for me, in Tennessee education parlance, to “go to the house.”

My wife had a baby in March, I was working half-time, and my days were filled with long runs, modest work, and lots of family time.

On an otherwise unremarkable day of quasi-vacation, I got an email with a link to an article claiming that I had lied to the legislature about virtual schools in 2013. The article was on a blog written by a TNVA-paid consultant. (K12 denies that it in any way funded the blogger) I clicked through to a YouTube video that showed me clearly testifying in 2013 that the performance rules for closing a virtual school would not be applied retroactively. In other words, under this interpretation, the 2011-12 school year could not count against the virtual school. This would mean that the school was not yet subject to closure.

I called the department to check in. I have my flaws, but lying to the legislature isn’t one of them. Furthermore, we were incredibly precise about this particular bill and I found it hard to believe that I would have misspoken.

Nothing to worry about, I was told. The video clip is completely misleading and out of context. The video was from my testimony on the original bill language — not the amended language that actually passed. When I testified, the language was indeed about prospective test scores. The language that passed, more than a month later, was different. The video is a joke, I was told — a desperate attempt to confuse clear legal language.

This gave me a small amount of comfort. We would win in court. I obviously wasn’t pleased that TNVA associates were calling me a liar. But, at least TNVA would soon stop harming Tennessee kids.

On Friday, June 12, Judge Ellen Hobbs Lyle ruled in favor of the school. She cited confusion saying it wasn’t clear what the statute actually allowed. She cited the out-of-context video of my testimony as contributing to the confusion. The school could stay open another year. The state could not intervene and close it down until at least summer 2016.

The department’s legal staff broke the news to me. “We’ll appeal, right?” I asked plaintively. Every court loser asks this when given bad news. No, they said, telling me what I already knew. An appeal wouldn’t be heard until after the school year opened. Nobody wants to close a school in the middle of the year — it just isn’t fair to parents. The school would stay open for 2015-16.

Still Open For Business

This past summer, the state released the school results from the 2014-15 school year. The Tennessee Virtual Academy earned a Level 1 in growth for the fourth year in a row. It clocked in at #1312 out of 1368 elementary and middle schools in the state. It is no longer the most improved lousy school in Tennessee. It is just plain lousy. It is, over a four-year time, arguably the worst school in Tennessee.

K12 Inc. lives on in Tennessee. The Tennessee Virtual Academy opened its online doors again in August. State officials tell me that they aren’t thinking about other legal steps. After all, if and when the school fails again this year, they will close it down.

I will believe it when I see it.

T he K12 saga raises a lot of difficult questions for me. Is it possible for a for-profit company to run schools? Our very best charters all over the country are non-profits, and I see little evidence of for-profits succeeding in the school management business. I may be platform-agnostic, but the data is telling a compelling story on this one.

How do we encourage innovation while still holding the bar on quality? The virtual school concept almost certainly has a place in the future of American education. But how long should an “innovative” school be allowed to fail?

What is the responsibility of the state as a regulatory enterprise, even in a choice environment? None of the parents signing up for TNVA were forced into the school — it is a school of choice.

And yet, the “marketplace” fails when we are not able to ensure that parents know that the school they are choosing has a running track record of failure. Clearly, there is a critical regulatory role, and we cannot simply assume that an unfettered choice environment will automatically lead to good outcomes.

In theory, K12, Inc’s stock should be hammered by its terrible performance in Tennessee, but it’s actually up in 2015. And why wouldn’t it be? The corporate shareholders aren’t looking for student results — they are looking for K12 to expand and grow and add more students.

Nobody asks me for stock advice, but I say: Buy! Buy K12 Inc.! It is the rarest of breeds — a company utterly impervious to failure. It fails again and again, and yet it lives and breathes!

No doubt, I will have ample opportunity to talk about this with their lobbyists at my next education conference.

To read K12 Inc.’s full response to this essay, please click here.