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The Ohio Department of Education and David Hansen, its top school choice official, appears to have ignored state law in skipping F grades for online schools in key charter school evaluations this year.

(Patrick O'Donnell/The Plain Dealer)

COLUMBUS, Ohio - State school board members accused the Ohio Department of Education Tuesday of breaking state law by throwing F grades for online schools out of a key charter school evaluation this year.

Members of the state school board and state Sen. Peggy Lehner said David Hansen, ODE's school choice director, was required by state law to include online schools and dropout recovery schools in evaluations of charter school oversight agencies.

But after questioning Hansen Tuesday, Lehner and the board confirmed a June 14 Plain Dealer report that he had left failing grades for those schools out of the evaluations.

That deliberate omission boosted the rating of two oversight agencies, who could now be eligible for new state perks.

Hansen, who has close ties to Gov. John Kasich, offered rushed and muddled explanations for that decision in his appearance before the board. He said he wanted to look at other, stronger schools instead, because online struggles "mask" successes elsewhere.

And Hansen said he left online schools out because they all started receiving low grades after the state changed some grading rules a few years ago. At the same time, Hansen admitted to the board that those changes made the grades more accurate.

But school board President Tom Gunlock told The Plain Dealer that Hansen's reasons don't matter. State law says the schools should be counted in measuring the academic performance of the oversight agencies, he said, so they should have been.

"If you don't like the law, change it," Gunlock said. "Until such time, you have to obey it."

Gunlock said he will discuss with state Superintendent Richard Ross how to handle the already-completed evaluations that would be affected by the exclusion.

Ross, who is Hansen's boss, sat by him as he was questioned but offered no comment.

Ross later said, in a prepared statement, that ODE will include online school and dropout recovery school grades in future years. But he made no comment about whether he would continue leaving those grades out as evaluations continue this year.

"We will include academic performance data of e-schools and dropout prevention and recovery schools in our evaluation process as soon as we get the data we need from the 2014-15 school report cards," he wrote. "This evaluation process is still new, but we will work to get it right."

The key beneficiary of the exclusion - so far - was the Ohio Council of Community Schools, a non-profit agency which collects about $1.5 million in sponsor fees a year from the more than 14,000 students attending Ohio Virtual Academy and OHDELA, the online school run by White Hat Management.

Those schools received F grades on state report cards, which would have likely blocked the agency from receiving the state's top oversight rating.

The Buckeye Community Hope Foundation, another charter school sponsor, has much smaller online schools under its wing, but was still affected by the exclusion.

Gunlock, who previously served on a charter school board in the Dayton area where he lives, told The Plain Dealer before Tuesday's meeting that he disagrees with excluding online schools that have thousands of students and collect millions in state tax money.

Not just for legal reasons.

"I think that is way out of bounds," said Gunlock, a Republican who was appointed to the board by Kasich. "These kids are no different than any other child in Ohio and the schools are no different than any other school. Why should they be treated any differently?"

He added: "Somebody's going to have to explain to me the reasoning to make that decision. It doesn't make any logical sense to me whatsoever."

Board member Mary Rose Oakar, of Cleveland, had also told The Plain Dealer before today's meeting that she also wanted an explanation of that decision.

But they let Lehner question Hansen.

Hansen at first didn't appear before the board. Though the board and ODE had planned a lengthy explanation to the board about charter school law this morning, and the desire of board members to question Hansen was well-known, Hansen sent two of his staff instead.

When sponsor evaluation came up in that presentation, Lehner said, "I have not been able to get an answer why those schools were excluded."

Joni Hoffman, ODE's charter school director replied: "I don't want to try to explain that so I don't say anything that's wrong."

She said she would talk to her boss (Hansen) and get back to Lehner.

But Gunlock jumped in.

"I was going to ask the same question," he said, asking to have Hansen come down from his office upstairs to talk to the board.

ODE officials said Hansen had been working on a grant application with a deadline.

After Hansen arrived, Lehner told him that state law only allows two types of schools to be excluded from these sponsor evaluations - new schools younger than two years and schools for disabled children.

Hansen said that online schools and dropout recovery schools have low grades that "mask the success" of other charter schools that do well in struggling urban areas.

"We wanted to focus our portfolio (of schools) evaluation system on learning taking place in those schools," Hansen said.

Hansen also said that ODE changed rules a few years ago covering which students are counted in calculating grades on state report cards.

ODE officials have told The Plain Dealer that many students had not been counted in calculating grades in previous years, particularly at online schools that draw students scattered across the state, because ODE had trouble verifying previous test scores for those students to measure their year-to-year progress.

When ODE resolved that issue, more students started being counted and grades for most online schools fell from Bs and Cs to Fs.

Hansen told the board that he was more concerned with "brick-and-mortar" charter schools - schools with fixed buildings where kids attend - than online schools. So he used previous grades for online schools as a "baseline" to measure future improvement from.

That didn't satisfy Lehner, who said, "The law didn't permit you take take out e-schools and dropout recovery schools."

Hansen said they were included, just as a base year. Lehner pressed him again, before he finally conceded, "No, they didn't actually get included."

Board members did not press Hansen or Ross for additional explanation for his reasoning.

That was enough of an answer for board member and former judge A.J. Wagner of Dayton, who said Hansen's answers confirm that he did not follow the law.

And Wagner said Hansen's avoidance of answering directly - at first - is the latest example of a pattern of ODE giving the board half-answers on a regular basis.

"You ask a question and you don't get a direct answer," he said.

Oakar said she was not satisfied with Hansen's answers and that Ross should also have responded to questions.

"The superintendent is his boss," Oakar said. "He should have answered the questions."

And she attributed the exclusion of online schools to regular donations by charter school operators to Republican legislators.