What would a grand jury know about school funding? What an odd question. One might as well ask what an elephant knows about landing on the moon. The two have nothing to do with each other. Unfortunately, the question is far more relevant than it ought to be. Earlier this month, a multi-county grand jury investigating Epic Charter Schools issued an Interim Report, offering its “expert” opinion on how the legislature should reform charter school laws. Yes, you read that correctly, a secret body convened to investigate potential criminal charges, armed with subpoena power, is offering the legislature a position paper on school funding and management.
The grand jury’s position can be boiled down to two concerns: first, the company managing Epic is for-profit, rather than a not-for-profit company or a government agency; and second, the company managing Epic is acting like a for-profit company, rather than a not-for-profit company or a government agency. Neither of these is against the law. Remember that a grand jury’s role is to bring indictments for criminal activity.
The report stresses that the grand jury is not concerned with the quality of education Epic is offering. The grand jury report repeatedly stresses that Epic’s managers are spending public funds. Reading between the lines, it seems the grand jury likely believes this job, and perhaps any job which uses public funds, should be reserved for non-profits.
But are these truly public funds? Public funds, once paid to a private entity, become private funds. A construction company paid to build a bridge for the state doesn’t have to open their books to the state auditor, provided the work is done on time and is up to quality standards. Why should a private company running a school be different? Simply because they are in the sphere of education? Does the grand jury believe that teachers, who are paid from the public treasury, ought to have to open their personal bank accounts to public auditors? Perhaps a special counsel, appointed to run a grand jury, ought to have their every dollar scrutinized by the state auditor, given the sensitive nature of their work.
Charter schools like Epic are hired to perform a particular job for the state, at a particular price. So long as they are educating students at least as well as public schools, and absent the law being broken, we shouldn’t care how they spend their money to do it.
As weak as the policy position advocated by the grand jury is, what is really worth noting is the oddity of a grand jury opining on a matter of public policy at all. Who on the grand jury is an expert on public policy generally, and charter school funding in particular? We don’t know that. Grand jury proceedings are secret. If someone on the grand jury is an expert on charter school funding, are they really an impartial arbiter? And if none of grand jurors is an expert on charter school funding, were they really able, after spending two days a month over the course of seven months, to produce a position paper on the subject? We don’t know that. Grand jury proceedings are secret. Why does the report read like a position paper written by a member of the education establishment? We don’t know that. Grand jury proceedings are secret. Was the report authored primarily by the jurors, or by the special prosecutor? We don’t know that. Grand jury proceedings are secret.
Grand jury proceedings are secret for a reason. Grand juries are used exclusively to determine if there is enough evidence to charge someone with a crime. We don’t want to tip off a criminal that they’re being investigated until the trap is set. We don’t want jurors to be pressured into voting a particular way – whether through intimidation or less nefarious social pressure. The accused will have their day in open court, but until the indictment is issued, secrecy is not a terrible idea.
On the other hand, when we make public policy, it’s about public welfare and the public’s opinion. We should want the proceedings to be as open and transparent as possible. Committees meet in open session. Legislation is passed in open session. When bills are passed, the names of their authors and those who voted for them are right there in the open for everyone to see. When 1889 Institute suggests a policy, we put our names on it. Our pictures and email addresses are readily available on our website. Our experience and expertise is evident in our online biographies. Policymaking is and ought to be an open process. So why should an anonymous grand jury, armed with subpoena power and the perceived legitimacy that comes with being a grand jury, publish a report, prior to completing their investigation, that proposes changes to the way charter schools are funded and administered?
It turns out there is a little-used provision in the Oklahoma Statutes that authorizes a grand jury to publish “formal written reports as to the condition and operation of any public office or public institution investigated by them.” While perhaps not in keeping with the spirit of this law, the Interim Report arguably follows the letter. Surely the law was intended to let a grand jury inform the public of objective flaws in the structure of a public institution. However, it likely was not intended to empower a grand jury to issue a subjective public policy positions. It was certainly not intended to create secret think tanks, armed with subpoena powers. Yet the report reads like a position piece. It gives background, identifies particular problems, and suggests legislative solutions. To the extent this provision of Oklahoma law allows what this grand jury did, it should be modified or repealed.
The report ignores differences between public entities, and private entities hired by the state to perform a task for the public. Again, no one expects to be able to look through the books of a private construction company simply because they were hired with public funds to build a public road. No one expects to be able to look through the personal finances of a public school teacher just because she was hired with public funds to educate children. As long as the road is built to a satisfactory standard, the public is satisfied. As long as teachers do their jobs, the public is satisfied. As long as Epic is educating students to a sufficient standard, the public ought to be satisfied – and the grand jury reports that this is, indeed, the case. The price was negotiated in advance, and Epic is performing the service on a take-it-or-leave-it basis.
Did the Interim Report violate the laws regarding the secrecy of grand jury proceedings? Probably not, since the law allows a grand jury to issue an official report. Was it wildly inappropriate to use the perceived legitimacy and the actual authority, including subpoena power, to issue a policy opinion? Certainly. The legislature ought to revisit this little-known statute to ensure that the powers that be cannot abuse the justice system to further their own political ends in the future.
Mike Davis is a 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.