Last week, the Alabama State Department of Education (ALSDE) named more than 50 schools across the state to be “failing schools,” as defined by the Alabama Accountability Act (AAA) of 2013 — a law that was ultimately declared unconstitutional last year and still awaits a final ruling from the United States Supreme Court.  

Montgomery Circuit Judge Gene Reese last May ruled the AAA unconstitutional for what he and plaintiffs, including the Alabama Education Association (AEA) alleged were procedural violations, as the law was originally called the Local Control School Flexibility Act of 2013 and intended during its early origins to give school boards more flexibility when dealing with education regulations.

However, on the day of the vote, Senate Republicans changed the bill to include a $3,500 tax credit for families transferring a child from a failing school system as defined by the law.

According to Jesse McDaniel, UniServ Director of the AEA in Mobile, the AEA actually supported the original bill, but when legislators emerged from behind closed doors, there were noticeable changes to the law.

“They had a totally different bill,” he said, noting the bill was rushed through the legislature without debate and passed in a matter of hours, ultimately adding on the private school voucher at the end.

“It’s a complicated law … they didn’t consult educators when they wrote the law, but some of the things don’t make a lot of sense,” he said.

The law also earmarked up to $25 million annually from the Education Trust Fund (ETF) to be used for tax credits to corporations donating scholarships aimed at helping students transfer from failing schools, and this is where the AEA sees a problem with the law as public school tax money comes out of the ETF budget every year and is thus reducing the amount of money for public schools, McDaniel said.

“Basically, people or corporations can donate money to a nonprofit and get a dollar-for-dollar tax credit on their taxes, meaning rather than paying state tax, they can just donate,” he said. “It’s hitting publics schools in that respect, and it’s hitting the state again when the parents claim the tax credit. It’s like a double whammy.”

Under the law, failing schools are “labeled as persistently low-performing by the State Department of Education” or having scored in the bottom 6 percent on standardized state reading and math assessments three or more times during the last six years.

For Mobile County, Augusta Evans School, Jeremiah A. Denton Middle School, Booker T. Washington Middle School, Mae Eanes Middle School, Mobile County Training Middle School and CL Scarborough Middle School are all named as failing schools.

“Unfortunately, we will never be able to eliminate failing schools under the law because the law defines failing schools in the bottom 6 percent on certain test scores,” he said. “There will always be a bottom 6 percent no matter how well the school performs,” McDaniel said.

According to a memorandum sent by State Superintendent of Education Tommy Bice to city and county superintendents, the determinations were based on the 2013 scores from the Alabama Reading and Math Test+ (ARMT+), Alabama Alternative Assessment and the Alabama High School Graduation Exam (AHSGE) as the state continues to transition to the new ACT Aspire and ACT suite of assessments and accompanying accountability system.

Additionally, “eligibility for tax credit remains for a student who transferred under a previously designated school until the highest grade in which a student would have otherwise remained at that school,” the memorandum reads.

While a lot of the focus has been placed on failing schools, McDaniel said now, two years later, people are starting to see that students who are not in failing schools are ending up with the scholarships originally purposed to help low-income parents who want to enroll their children in private school.

“There should be a lot of scrutiny on this scholarship portion of this law because it is being abused,” he said. “More than half of the scholarship and tax credits have not gone to kids in failing schools. They’ve gone to kids who have never set foot in a failing school.

According to the Alabama Department of Revenue, only $12.4 million in donations to AAA scholarship granting organizations was verified in 2014 compared to double at $24.8 million in 2013.

Five percent of funds according to the law that are donated to nonprofit organizations can be kept for administrative costs, McDaniel said. He added that the largest scholarship organization chaired by former Gov. Bob Riley, the Alabama Opportunity Scholarship Fund (AOSF) received $17 million last year and could thus put aside $850,000 aside for said administrative costs.

However, the AOSF last fall released an audit to show that neither Riley, other board members nor his immediate family members had been paid from the funds.

The AOSF also reported giving scholarships last year to 1,474 students from AAA defined failing schools. Under the law, once students in failing schools are awarded scholarships, students not zoned for failing public schools may also be awarded scholarships.

According to McDaniel, lawmakers put a lot of focus on the “failing schools,” part of the law, but what he said a lot of people have failed to recognize the scholarship portion of the AAA that ultimately allows nonprofit organizations to accept donations from private individuals and corporations.

Ideally, those nonprofits would then turn around and give those scholarships to children in failing schools who wish to transfer; however, that is not always the case, McDaniel said.

“Any unused funds after Sept. 15 can be given to any child,” McDaniel said. “It doesn’t have to be a child in a failing school … they are giving scholarships to children who have never set foot in one of those failing schools. That is the reason why AEA has opposed this law from the very beginning.”

Further, McDaniel said the scholarship portion of the AAA has been the main expense and cost that has come to the state under the law and has not been for the benefit of children in failing schools, as lawmakers had originally suggested.

AEA President Anita Gibson in conjunction with state Sen. Quinton Ross (D-Montgomery) and Lowndes County School Superintendent Daniel Boyd filed the lawsuit challenging the AAA.

“We have challenged this law from day one in the court system,” McDaniel said.

The AEA sued in August 2013 immediately after the AAA was passed, and while the initial lawsuit was successful in Montgomery circuit court, it has since been appealed in the Supreme Court and is awaiting a final ruling, he said.

If the lawsuit is won by the AEA, McDaniel confirmed the AAA scholarship program would have to stop. He said oral arguments have already been heard by the U.S. Supreme Court on the matter and said a ruling on the issue is expected any day now. Further, he said he doesn’t expect the court to keep the law in place as is.  

“I don’t think that would happen now that people have learned about the law,” he said.

Furthermore, all institutions named as a failing school are required by the AAA to notify parents of their transfer options by Feb. 13. The deadline for parents to return a student transfer form to their local school system for the 2015-2016 school year is May 1.