Several months ago, we criticized the multicounty grand jury for wading into public policy rather than sticking to its mission: determining if there are grounds to prosecute someone for a crime. The multicounty grand jury, empaneled in March of 2020, produced a so-called interim report that criticized the lack of transparency surrounding Epic Charter School’s use of its funding. Coming from a grand jury, it gave the impression something criminal was soon to be discovered.

Last week, the grand jury’s final report on the entire 18-month grand jury session was made public. Special mention was given to the Epic investigation, noting that “much of its time and attention” was devoted to the matter. But that time and attention resulted in no indictments. That, in itself, is neither good nor bad. Grand juries should only return indictments if there is clear evidence a crime has occurred. A lengthy investigation that results in no indictments may feel like a waste of time, but it might be the best way to serve justice. Indicting someone simply to justify the time spent investigating them would be a terrible injustice.

However, given the attention the grand jury focused on Epic, especially in light of the jury’s unusual (and inappropriate) policy paper issued under the guise of an interim report, returning no indictments is a surprising result. Perhaps the grand jury really did have serious concerns about Epic, and perhaps it did take a great deal of their time and attention to be sure that nothing criminal was going on behind the scenes of Oklahoma’s largest school district. But the focused investigation and unconventional report leading to no indictments does little to reassure parents (who have turned to Epic in droves) that their preferred school was not the subject of a witch hunt. This is especially true at a time when the state and federal governments are issuing not-so-veiled threats to parents who interfere with the education establishment’s vision of public (re-)education.

The interim report focused a great deal on transparency. The 1889 Institute generally favors more transparency and accountability for government actors. But Epic is a private contractor, not a government agency. When the state hires private construction crews to build roads, only two things should matter: the amount paid to the contractor, and the quality of the product the state receives in return. If Epic is providing an equal or better education for less money than traditional public schools, then perhaps the education establishment overseeing those schools should figure out how to do better, instead of curtailing competition.

The final report noted again the grand jury’s concern for whether the money is going “to the students as intended.” But according to publicly available data, Epic sends a larger proportion of its funding to the classroom than the state average for all public schools (including charters). Epic One on One devotes 69% of its total spending on the “instruction” function (code 1000 for those familiar with school finance). Epic Blended directs 60% of its total spending to instruction. Meanwhile, in the state as a whole, school districts’ average only a 43% instruction share. Epic’s troubles began when they spent too much of their funding on administrative functions. And while all districts must stay under a spending cap on administrative functions (a sliding scale of 5-8% of total funds), there are several other clearly administrative function categories that do not put dollars in the classroom, but are not subject to the administrative cap.

The merits of the grand jury’s concerns over transparency are less important than the integrity of the grand jury process. Grand jury proceedings are not public. The subject of the investigation is not allowed to have a representative present, unless the subject is called to testify, and then only for the duration of that testimony. There is no impartial judge present for the proceedings.

Most criminal justice reform experts believe that since grand jury procedures lack an impartial judge and an attorney for the subject of the investigation, prosecutors essentially lead grand juries around by the nose. Given this impression – true or not – it’s hard not to wonder who wrote the grand jury reports. The interim report especially seems to be the work of someone with experience in public policy. Perhaps the grand jury just happened to have a public policy expert, or someone with exceptional writing skill.

Eventually, anyone who is indicted by a grand jury has their day in court with the benefit of an attorney. But Epic won’t have a day in court, since no one was indicted. Instead, the grand jury reports will stand as the first, last, and only official word on Epic and its spending by the criminal justice system. Certainly each individual juror has every right as a citizen of Oklahoma to advocate for whatever policy changes they want. But the use of a supposedly impartial office to advance those policies is wildly inappropriate.

The solution would not, of course, be to indict Epic despite the lack of evidence. Rather, the grand jury should never have engaged on the topic during an ongoing investigation. Judges are forbidden from speaking publicly about a case they are currently presiding over, or even one they might preside over in the future. The grand jury should have taken its cue from these judicial standards. Issuing the interim report compromised the grand jury’s impartiality. It is to their credit that they issued no indictment to justify the earlier report, but that does not mitigate the earlier impropriety.

It is odd that the interim report was ever issued, and stranger that the report was issued pursuant to an investigation that yielded no indictments. This does nothing to instill confidence in the grand jury process. Nor does it dispel the notion that the investigation was a politically motivated witch hunt perpetrated by an education establishment threatened by a growing migration to charter schools and home schools.

The establishment seems to believe that education funding is the public schools’ money. We should remind them that it is money to educate the children of Oklahoma. If the public schools can’t do the job, parents are quite happy to find someone who can. Thus, the legislature should enact education savings accounts. That way everyone will realize that education funding is for students. With such accounts, the money is put into the trust of the parents, and is eventually directed to the schools that put out the best product, for the benefit of students, not public schools, not teacher unions, and not administrators.

Mike Davis is Research Fellow at 1889 Institute. He can be reached at [email protected].

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.