1
IN THE COURT OF COMMON PLEAS
OF FRANKLIN COUNTY, OHIO
- - - - -
Electronic Classroom
of Tomorrow, et al.,
:
:
Plaintiff,
:
vs.
:
Ohio Department of
Education,
:
Defendant.
:
Case No. 16CV006402
Judge French
- - - - VIDEOTAPED DEPOSITION OF ROBERT D. SOMMERS, Ph.D.
- - - - -
Taken at Organ Cole LLP
1330 Dublin Road
Columbus, Ohio 43215
September 2, 2016, 1:13 p.m.
- - - - Spectrum Reporting LLC
333 Stewart Avenue, Columbus, Ohio 43206
614-444-1000 or 800-635-9071
www.spectrumreporting.com
- - - - -
Realtime - Videoconferencing - Trial Presentation - Video
Spectrum Reporting LLC
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A P P E A R A N C E S
ON BEHALF OF PLAINTIFFS, ELECTRONIC CLASSROOM OF
TOMORROW, JEREMY AKER, AND DARREL DEBERRY:
Zeiger, Tigges & Little LLP
41 South High Street, Ste. 3500
Columbus, OH 43215-6103
By Christopher J. Hogan, Esq.
ON BEHALF OF DEFENDANT, OHIO DEPARTMENT OF
EDUCATION:
Organ Cole LLP
1330 Dublin Road
Columbus, OH 43215
By Erik J. Clark, Esq.
ALSO PRESENT:
Michael Lane - Videographer
Brittny Pierson
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I N D E X
Examination By
Page
Mr. Clark - Cross
ODE Exhibits
Page
Exhibit 1002 - ECOT Witness Summaries
Friday Afternoon Session
September 2, 2016, 1:13 p.m.
----STIPULATIONS
----It is stipulated by counsel in attendance that
the deposition of Robert D. Sommers, Ph.D., a
witness herein, called by the Defendant for
cross-examination, may be taken at this time by
the notary pursuant to notice, that said
deposition may be reduced to writing in stenotypy
by the notary, whose notes may thereafter be
transcribed out of the presence of the witness;
that proof of the official character and
qualification of the notary is waived.
-----
Min-U-Script®
95
Exhibit 1037 - FTE Review and Community School
Enrollment Handbook, Revised
1-5-15
170
Exhibit 1040 - Curriculum Vitae
26
Exhibit 1041 - District Indicators
147
Exhibit 1343 - Bio from LinkedIn
26
Exhibit 1344 - Bio from Carpe Diem Learning
Systems Leadership
67
Exhibit 1345 - Bio from OK Career Tech
176
Exhibit 1347 - Columbus Dispatch Article,
Accountability Concern, 5-11-11
177
(Original exhibits returned to Organ Cole LLP.)
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THE VIDEOGRAPHER: We are on the record
at 1:13. Would counsel please announce their
presence.
MR. CLARK: Erik Clark on behalf of the
Ohio Department of Education.
MR. HOGAN: Chris Hogan on behalf of
the Electronic Classroom of Tomorrow.
----ROBERT D. SOMMERS, Ph.D.
being first duly sworn, testifies and says as
follows:
CROSS-EXAMINATION
BY MR. CLARK:
Q.
Good afternoon, Dr. Sommers.
A.
Either way.
Q.
Do you go by Mr. Sommers or
Dr. Sommers?
A.
Doctor is normal.
Q.
My name is Erik Clark. I represent the
Ohio Department of Education in this matter.
Have you ever been deposed before?
A.
Yes.
Q.
So you generally know how it works; is
that right?
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A.
Yes.
Q.
Okay. How long -- how often have you
been deposed?
A.
I think twice in my lifetime.
Q.
Have you ever given testimony in court
before?
A.
Not that I recall.
Q.
Okay. Well, just before we start we'll
go ahead and go through the basic idea of how it
works again just to remind you.
You are under oath, as you know, just
as if you were in a courtroom. I will ask you
questions. I ask that you let me finish my
question before you respond. Even though
sometimes that's different than how we typically
converse, it helps the court reporter if we don't
talk at once.
It's always a good idea to pause before
you answer my questions to give Mr. Hogan a chance
to object to the questions if he chooses to do so.
Usually you will still be required to answer the
questions. Mr. Hogan may instruct you not to
answer, at which point we'll deal with that.
You understand that the court reporter
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Q.
What was the ex-football coach?
A.
Dave Daubenmire.
Q.
Okay. And where was this?
A.
It was in London, Ohio.
Q.
And what were the basic circumstance of
that case?
A.
Dave Daubenmire had caused a great deal
of difficulty in the community. I was a board
member when he was hired, and the community had a
rather large uproar. He subsequently left and
decided to sue three of us, three or four
prominent community people, for -- for what he
did. It was dismissed on summary -- it was a
summary judgment by the judge. We never went to
court.
Q.
In other words, you were a defendant in
a case -A.
Yes.
Q.
-- in which you were accused of liable
and slander, and that case was dismissed because
the Court granted your motion for summary
judgment; is that correct?
A.
That is correct. Yeah. It was I
believe the term in the judge's paper was a
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is taking down this testimony so it helps if you
verbalize your responses, say yes instead of nod,
say no instead of shake your head, something that
many people will forget in depositions and we'll
work with it if that happens.
If you need a break, please feel free
to tell me. We want you to be comfortable. If
you -- if you need a break, I will ask that you
answer any pending question first and I may have a
couple follow-up questions, but I will try to get
you a break as quickly as possible. So don't be
afraid to speak up.
Does that all make sense?
A.
Sure does.
Q.
Do you have any questions before we
begin?
A.
No, I do not.
Q.
Okay. You said you were deposed twice
before.
A.
Yes.
Q.
Can you tell me the first time you were
deposed? What was that about?
A.
I was being sued for liable and slander
by an ex-football coach.
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frivolous lawsuit and he ended up charging
Daubenmire for all of our attorneys' fees.
Q.
Okay. What did the coach accuse you of
saying that he alleged was slander or liable?
A.
There was a whole series of items that
had been pretty well substantiated in the
community for a good bit of the time. I can't
recall all the specifics.
Q.
Okay. And what court was this, if you
can recall?
A.
I can't -- it was the -- the judge was
a county judge, so that's about as close as I can
get to the legal profession.
Q.
Is it Madison County where London, Ohio
is it?
A.
Yes.
Q.
Do I have that right? Was it Madison
County, that was where the court was located?
A.
Yes.
Q.
Okay. And it was state court, not
federal court?
A.
That I can't tell you.
Q.
Okay. And do you remember the year in
which the case was filed?
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A.
That would be -- oh, it would have been
somewhere in the early 1990s.
Q.
Okay. And do you recall the year in
which the case was dismissed on summary judgment?
A.
No. It -- it was about a 18-month
period of time from start to finish.
Q.
And how many times were you deposed in
that lawsuit?
A.
Once.
Q.
Do you have a copy of the transcript of
your deposition in that lawsuit?
A.
I don't recall.
Q.
Okay. Okay. You mentioned you were
deposed one other time, to your recollection; is
that right?
A.
That's correct.
Q.
And what was that other time?
A.
It was for a court case on Townsend
school district.
Q.
Where is Townsend school district?
A.
It's in the Margaretta area.
Q.
And I don't -- I'm not familiar with
that area, either. Whereabouts is that?
A.
Up near the lake. And I can't tell you
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A.
Townsend.
Q.
The school district did?
A.
That's correct.
Q.
And the case was against what party,
Townsend against which party?
A.
I -- I only knew it as the Department
of Ed. I don't know whether it was actually the
Department of Education or whether it was someone
else.
Q.
So, in other words, it was a case you
believe against -- between Townsend school
district and the Ohio Department of Education?
A.
I believe it was between the Ohio
Department of Education and Townsend.
Q.
Okay. And what year was this?
A.
This would have been three, four years
ago.
Q.
Okay. And what else do you recall
about your testimony? What -- how do you believe
your testimony was used in that case? Can you put
it in context for me?
MR. HOGAN: Object to form.
A.
I don't have a clue.
MR. HOGAN: Make sure you give me a
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which county it is.
Q.
But near Lake Erie?
A.
Yes.
Q.
Okay.
A.
Yes.
Q.
And what was that case about?
A.
It was a case where the school was an
alternative school who had alternative scheduling,
and the Department of Education was trying to
revoke their funding because they didn't have what
the Department claimed to be proper documentation
for the students to be enrolled.
Q.
And what was your role in that case?
A.
Expert witness.
Q.
And what was the -- what were the
expert opinions you provided in that case?
A.
The -- I can't recall the exact ones
other than the concepts of blended learning, the
concepts of Credit Flex as we envisioned it when
we created it; some on the role of school finance
in the process. But, beyond that, I can't recall
the details.
Q.
What -- which party retained you as an
expert, if any?
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second, but you can still answer.
Q.
You don't have a clue about how your
testimony fit into the broader scope of the case?
MR. HOGAN: Same objection, but you
can -A.
All I know is that they wanted my
expert opinion on how educational processes worked
in alternative settings and how school funding was
supposed to work as a part of Credit Flex. I
presented that information. I don't know what the
proceedings did with the information that I had.
Q.
Generally what relevance do you see in
your testimony in that case to the testimony that
you expect to give in this case?
MR. HOGAN: Object to form.
A.
I -- I don't understand the question.
Q.
Do you think that the testimony you
gave in the Townsend case is related to the
testimony you expect to give in this case?
MR. HOGAN: Object to form.
A.
The fact that there's some commonality
in the school funding process, there would be some
similarity, but -- but I don't know the specific
nature.
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Q.
Were you paid as an expert witness in
that case?
A.
Yes.
Q.
And how much were you paid as an expert
witness in the Townsend case?
A.
You're demanding a lot of my memory. I
think it was $200 an hour, my regular rate.
Q.
And do you have a recollection of what
the total payment to you was as an expert witness
in that case?
A.
Well, it wasn't big enough to be
memorable, but I don't recall the exact amount.
Q.
Do you recall providing an X -- written
expert report in that case?
A.
Yes.
Q.
And you were deposed once in that case;
is that correct?
A.
Yes.
Q.
And did you testify in that case?
A.
No.
Q.
I should clarify; testify in court in
that case.
That's you did not testify in court in
that case, correct?
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testifying expert in a -- in litigation?
A.
No.
Q.
You -- have you ever been retained as
an expert of any kind in litigation other than in
the Townsend case and in this case?
A.
Not that I recall, no.
Q.
Okay. You mentioned you did not give
testimony in court in the Townsend case, correct?
A.
That's correct.
Q.
And, in fact, no court has ever
qualified you as an expert witness; is that
correct?
A.
I don't understand the question.
Q.
Has a court ever made a ruling
regarding whether you are qualified to offer
expert opinions on any matter?
A.
I would have no clue.
Q.
Are you aware of any court that has
qualified you as an expert witness in any case?
A.
No.
Q.
What did you do to prepare for your
deposition today?
A.
Prepare for the deposition was
I'm -- I'm coming to provide opinions based on my
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A.
That is correct. I did not testify in
court.
Q.
What was the outcome of that case?
A.
I don't -- I don't know the specifics.
I just don't -- I think -- I don't know whether
there was a negotiated settlement or whatever, but
Townsend school continued to operate and
succeeded, continues to succeed and received
funding. So I don't know whether they did that
through Court, whether they did that through
settlement, whether they did that through other
means, but -Q.
So you don't know whether the case went
to trial?
A.
No.
Q.
Okay. And you do not know whether the
case was resolved by settlement or by court
disposition; is that correct?
A.
That is correct.
Q.
Do you know the year in which the case
was resolved?
A.
No.
Q.
Other than the Townsend case we were
just discussing, have you ever served as a
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experience. So how I prepared for it was probably
everything I've done in life.
Q.
Fair enough. Did you have any meetings
with anyone in preparation for your deposition
today?
A.
With -- other than the attorney to
describe where I was going to go and what I was
supposed to -MR. HOGAN: Don't get into what you
talked about; just the fact that you had a
conversation.
A.
Yeah. We had conversations with the
attorney.
Q.
Okay. And I -- I agree with Mr. Hogan.
I don't want to know anything that your attorneys
told you or that you asked -- I'm sorry. I should
say ECOT's attorneys told you or that you asked
ECOT's attorneys unless I say otherwise and feel
that I'm entitled to know that. Generally
speaking, if there's communications between you
and ECOT's attorneys, you should not provide that
in an answer before we discuss whether it's
privileged.
But you met with -- did you meet with
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whether Mr. Hogan?
A.
No.
Q.
With whom did you meet?
A.
Marion Little.
Q.
And when was that?
A.
Yesterday.
Q.
And how long was that meeting?
A.
Probably an hour.
Q.
And when was the meeting, about what
time?
A.
5:00 yesterday.
Q.
Did you review any documents in that
meeting?
A.
No.
Q.
Have you reviewed any documents at all
in preparation for your deposition today?
MR. HOGAN: You can answer that.
A.
Yeah. I've -- I've received copies of
the -- the various court documents that have been
filed and I've received communications on where
meetings to occur.
Q.
And are you being paid to serve as an
expert witness -A.
Yes.
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MR. CLARK: Chris, do you have any
objection to producing that letter?
MR. HOGAN: I might. I don't know
whether it contains any privileged information, so
I cannot tell you whether or not I object at this
moment.
MR. CLARK: Okay. Let's go off the
record for just one second.
THE VIDEOGRAPHER: We are off the
record. The time is 1:29.
(A discussion was held off the record.)
THE VIDEOGRAPHER: Back on the record.
The time is 1:32.
Q.
Do you know how much you've billed for
your services as an expert witness so far?
A.
I've not billed anything -Q.
Do you -A.
-- yet, but it's somewhere probably a
little bit north of 2000, $2500.
Q.
And is your hourly rate $200 for all
stages of your services as an expert witness?
A.
I -- I don't charge that for travel
time.
Q.
Fair enough. And do you charge a
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Q.
-- in this case?
Let me ask that one more time, just
because I stopped and didn't finish my question
and you rightfully thought I was done, even though
I did not.
Are you being paid to serve as an
expert witness in this case?
A.
Yes.
Q.
Who retained you as an expert in this
case?
A.
The law firm.
Q.
And by "the law firm," you mean the law
firm of Zeiger, Tigges & Little?
A.
Yes.
Q.
And that is the law firm that is
representing ECOT in this case, correct?
A.
That is correct.
Q.
And what is your hourly rate, if any,
in this case?
A.
$200.
Q.
Have you signed a retention letter with
Zeiger, Tigges & Little for your service as an
expert witness in this case?
A.
Yes.
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higher amount or a lower amount for time in court?
A.
No, just the same.
Q.
You don't charge a higher or lower
amount for time in a deposition, correct?
A.
Life's too complicated as it is.
Q.
Fair enough. Were you retained to
support ECOT in this litigation?
A.
I was retained to provide opinions
about how school funding actually operates on the
front lines; how funding systems can impact
instruction; and how the entire process of
enrollment and attendance operates in a normal
community school or a normal bricks-and-mortar
district school.
Q.
Do -- you mentioned that you saw some
of the pleadings, the filings in this case; is
that correct?
A.
That's correct.
Q.
Did you look at the complaint in the
case, do you recall?
A.
When you say -- you have to understand,
I can tell you everything there is about
curriculum and assessment, but I wouldn't
recognize a complaint if it walked down the street
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in front of me, other than what my kids do what
they're upset with me, right?
Q.
Fair enough.
A.
So what is a complaint?
Q.
Well, let me ask this: Did you -- do
you recall reviewing a filing that was titled
complaint or amended complaint?
A.
I -- I looked at the filings in the
court cases. So if one of them had complaint at
the top, I would assume I did, yes.
Q.
Do you recall looking, reviewing a
motion for temporary restraining order in this
case?
A.
I -- if you -- the way I'm going to
answer it is if I could, in my mind, go and pick
that piece of paper up. I can't recall
that -- those words, but then I wouldn't be
looking for those words, either, so -Q.
Right. And I guess all I'm asking is
whether you actually recall seeing that title,
temporary restraining order and motion -A.
I really don't. I remember seeing
documents with versus and ODE and -- and ECOT
and -- but -- but the exact words that you're
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the courts are there for is to settle those
issues.
Q.
It's not an expert witness's job to
opine on what the law means during a lawsuit;
isn't that right?
MR. HOGAN: Same objection.
A.
I -- I think that my experience is
everything that I'm -- that I have provided and
would provide are based on manifestation of those
laws in practice. So if -- if you're asking the
question what the expert opinion is, the expert
opinion is how that law is played out in the front
lines, not the law itself, the statute itself.
Q.
So, in other words, what the law means
is not the role of an expert witness to opine on;
is that fair?
MR. HOGAN: Object to the extent it
misstates testimony and also lack of foundation.
A.
I really don't -- I guess I don't
understand the subtlety to the question. I think
I've answered it, so -Q.
Well, do you plan on testifying as to
what any particular statutory section in the Ohio
Revised Code means?
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referencing, no.
Q.
Sir, if you know, did you review all of
the filings in this case?
A.
I would have no idea. I -- I know that
I saw the original documents that were filed, I
believe the initiating -- what I'd call initiating
documents, and then some subsequent ones.
Q.
Do you recall if you reviewed more than
five filings in this case?
A.
As I recall, there were three or four.
Q.
Okay. And just to make sure, of the
three or four filings that you reviewed in this
case, do you remember any particular filing,
either by description or the title of that filing?
A.
No.
Q.
You're not an expert in the law; is
that right?
A.
That is absolutely correct.
Q.
You would agree that on issues of law
lawyers will argue over what the law means and the
judge will decide what the law means, right?
MR. HOGAN: Objection; lack of
foundation. You can answer.
A.
As far as I'm concerned, that's what
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A.
Not that I'm aware of.
Q.
And do you plan on testifying as to
what any particular section of the Ohio
Administrative Code means?
A.
Not directly; not that I'm aware of.
Q.
And when you say, "not directly," can
you think of a way in which you would indirectly
testify as to the meaning of the Ohio
Administrative Code?
A.
Since I don't understand law, what
I'm -- what I'm providing is an expert opinion on
how the laws have been implemented in the State of
Ohio in regular districts and in community
schools. Now, whether that can be construed as
providing meaning to the law, it -- it adds
credence to the past practice and ongoing
implementation of the meaning of the law as
somebody understood it from the Ohio Department of
Education for bricks-and-mortar schools and
community schools. So, to that extent, yes, I'm
going to suggest that there was somebody had
decided what the law meant and they proceeded to
implement it over a number of years.
Q.
Dr. Sommers, I'm handing you what's
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been marked as ODE Exhibit 1040 and there's a
second copy there for Mr. Hogan.
MR. HOGAN: Thank you.
Q.
Is this your CV?
A.
Yes.
Q.
And let me also hand you what's been
marked ODE Exhibit 1343. I'll represent that this
is a printout of your LinkedIn profile that we
printed out for today's deposition, okay?
I am going to ask you a little about
your background and I thought it might make sense
just to have both of these documents available. I
don't intend to try to trick you or grill you on
inconsistencies between these two or anything like
that. I just find that when we talk about
backgrounds it's sometimes helpful to have that
information in front of you so you can remember
years and dates and time frames and the like,
okay?
Where did you get your first degree?
A.
My first degree was a Bachelor of
Science from Miami University.
Q.
And what was the major?
A.
Education.
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Q.
And did you have a specialty in board
governance as well as part of that degree?
A.
My dissertation was on board
governance.
Q.
What was the topic of your
dissertation?
A.
It was a long title. Paraphrased, it
was the impact of -- of school boards on student
performance and it was focused on 49 career tech
school districts.
Q.
And what were the general conclusions
of that dissertation?
A.
That there was no actual proof of
impact of school board activity on student
performance.
Q.
Neither negative nor positive; is that
correct?
A.
Neither negative nor positive,
primarily because of the consistent way within
which school boards operated provided no
variability. They basically passed all the
policies that NEOLA submitted to them and they
basically did the same things that -- all 49 of
them basically worked about the same.
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Q.
Did you get that degree in 1977?
A.
That's the year I recall, but let me
double-check because I think it's on the list.
You'll find that I'm not very good at dates; 1977.
Q.
Okay. You also received a Master of
Science in agricultural education from the Ohio
State University, correct?
A.
That's correct.
Q.
And this is one of those times where
there's actually a difference between the LinkedIn
profile and the CV, which I can completely
understand. But it looks like you received that
degree in either 1985 or 1987. Do you recall
which one?
A.
It would be 1987.
Q.
Okay. And then -A.
Interesting catch.
Q.
And then you obtained a Ph.D. from the
Ohio State University in 1998, correct?
A.
That's correct.
Q.
And what was your Ph.D. in?
A.
It was titled Educational Leadership
and Research. It primarily followed the path of a
superintendent's certificate.
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Q.
You used a word I don't know, "NEOLA."
What is that?
A.
I can't remember the -- it's an
acronym. It's a policy service that most school
districts in Ohio use.
Q.
Was your dissertation study limited to
Ohio school districts?
A.
That's correct.
Q.
What prompted you to make this your
dissertation topic?
A.
I had been elected to the London school
board and as a part of the process of trying
to -- the school was faced with first school
report card in Ohio, so London was kind of like
Lake Wobegon. They thought everybody was above
average.
Q.
Right.
A.
They had a great football team,
but -- but we came in basically at the same level
as Columbus Public Schools in student performance,
so there was a big uproar in the community about
how poor the results were on -- on at that time
the ninth grade proficiency test.
And so I was -- as a new board member,
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I was trying to figure out how the board could
make a difference, and there was a book entitled,
"Boards That Make a Difference," by John Carver,
and that started a series of activities, a
strategic plan, renegotiation of teacher
contracts. We actually moved up fairly quickly
over that period of time. So it -- it fascinated
me how little research there actually is in school
boards.
Q.
Do you consider yourself an expert in
educational leadership?
A.
Yes.
Q.
Do you believe that that area of
expertise is relevant to the opinions you expect
to give in this litigation?
MR. HOGAN: Object to form.
A.
Not so much the study of educational
leadership. What helps me tremendously in this is
the actual practice of being a superintendent from
2001 to 2009 and then again in the charter world.
But also while at the Department of
Education I was the major architect of -- of the
funding system for career technical education at
the time, around '97, '98, after the DeRolph case,
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actually working on the front lines with funding
systems; understanding how enrollments,
attendance, how instruction can be either damaged
or supported; and also advocating for a lot of
years on the notion of getting away from seat time
as a measure of quality and focusing on actual
student performance. And most of that they did
not teach us in the doctoral program.
Q.
I can imagine. We're going to get into
a lot of that as we go on today, but just so we
can help our court reporter and me a little bit,
Kalmus ratio, how would you spell that?
A.
K-a-l-m-u-s.
Q.
Is it an acronym?
A.
No.
Q.
Why is it called "Kalmus"?
A.
Denise Kamus was her name. We were on
a plane to a conference and that's when we arrived
at the idea of putting, instead of cost per pupil,
put cost per successful student in the bottom. I
don't care to have my name anywhere, so she got
the privilege.
Q.
Did you create the Kalmus ratio or did
she, or was it some collaboration between the two
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and became immersed in the school funding process
for that.
Also I was a committee member, a fairly
prominent committee member on Credit Flex when
that was implemented. That was while I
was -- that was after leaving the Department of
Education and while I was in the field.
And I've been associated with
pioneering efforts around competency-based
education, mastery-based education, and blended
learning.
I've also developed the Kalmus ratio,
which is cost per successful student, and the
whole notion of how you use financial and student
performance to improve performance. So we were
immersed in the financial side as well as the
educational side to bring about change.
Butler Tech went from 42nd out of 49
career tech centers in student performance to
number one three years in a row. It went from
7,000 students to 26,000 students all driven by an
intense look at this concept of the Kalmus ratio
and deploying it throughout the organization.
So it's -- it's those experiences of
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of you?
A.
Oh, I'll claim that it's collaboration.
Q.
You'll claim that it's collaboration,
but it might be more her than you; is that fair?
A.
No. It's probably more me and her, but
that's all right, too.
Q.
You're just being modest.
A.
I'd -- I'll leave that to you.
Q.
Okay. Credit Flex, can you explain
briefly what that concept is?
A.
Yes. Credit Flex was literally the
notion at the time, most of education still is on
this notion of a Carnegie unit.
A Carnegie unit actually was when
Andrew Carnegie wanted to support college
professors that had no retirement benefits, and so
he doled out his wealth to professors on the basis
how many hours they taught. And those became
Carnegie units that then got carried over to K-12,
and we have Carnegie units today. So many hours
per year and you get a unit of credit, mostly in
high school, they don't do it so much in K-8. But
everything's been built on this notion of, you
know, I'm a sixth grader for 180 days and then I
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graduate to ninth grade. Never mind what I know
or don't know. I simply graduate. There may be
some minimum standards.
So Credit Flex was on the notion that
in this modern age where digital technology, where
we're becoming much more proficient in
understanding what students know and are able to
do, that it makes absolutely no sense to put in a
Bell curve of performance by simply saying 180
days and time's up. You got an F. You got an A.
You got a bunch of Cs, and doesn't make any
difference.
So Credit Flex was based on the
assumption that time is not a good measure of
quality. We know that because we have all these
lousy results. We know that competence and
mastery is knowable. We know whether kids know
something, and why not focus on that as the end
point and that as the provider of credit and that
of the provider of moving to new promotion or from
grade level to grade level.
And also one that never quite, you
know -- was always at the table, we always had to
struggle with, is what does that mean to the
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on a time basis. So that's Credit Flex.
Q.
Thank you.
A.
It was a large group. I remember the
OEA was at the table, Department of Ed, field
staff, parents, business people.
Q.
You used the term "seat time" in -just a moment ago.
A.
Yes.
Q.
Can you tell me what you mean by "seat
time"?
A.
Almost all of the traditional
approaches to education were based on how many
minutes you sat in a seat and took a course. So
whether you're at college, whether you're in
kindergarten, whether you're in first grade,
or -- and that -- hence the term, Carnegie unit,
so many -- 180 days. I used to recall the exact
hours. They've -- they've adjusted, 920 hours
or something like that for a, you
know -- it's -- it's basically -- 920 is not the
right number. It's about 180 hours or somewhere
shy of that. It depends on the formulas. And I
apologize for not remembering the exact formulas,
but it was the basis of -- of FTEs, full-time
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structure of schools. Credit Flex focused on
instead of -- there's always content standards in
instructional practice, which is incredibly
important. All those things are important. But
Credit Flex had this notion that we would focus on
the assessment result, the end results, whether
pen or pencil, room rate, real life performance,
as the measure of success. Mastery based,
competency based are both used.
The other thing that it did, though,
was it made it possible in the subsequent laws
that came out that students could earn credit by
proficiency. So actually in the State of Ohio
it's required that districts have proficiency
assessments for all their courses that they offer
so that if I walk in on day one and can pass your
proficiency test, you have to grant me credit for
that course and I don't have to take the course.
So that was a big part of Credit Flex was this
notion that we could do that.
The other notions in Credit Flex was
finally making possible blended learning, online
learning, a whole series of instructional
practices that heretofore could not have been done
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equivalent students, those sorts of things.
Q.
When you say, "was," what time frame
are you talking about, when seat time was relevant
to FTE reviews?
MR. HOGAN: Object to the form.
A.
Yeah. They -- the actual connection
between seat time and FTE review never was in
existence. It was mostly around the educational
side, the educational delivery.
Q.
Okay. So -- so let's take a step back.
You were talking about seat time as a concept and
you were using the word "was," and so let me ask a
broader question.
Was there a time in your mind -- I'm
sensing that something changed at some point in
time based on your use of the word "was" to make
seat time less relevant than it used to be; is
that correct?
A.
That is correct, not on the financial
side, but on the -- on the educational side.
So today, since Credit Flex, the -- the
most extreme example of "was" is if I'd walk into
Columbus Public Schools today with a high school
standing and I need algebra II credit, I can
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1 demand to sit for an algebra II proficiency test
2 and if I pass that satisfactorily to Columbus
3 Public Schools, I can earn the credit for algebra
4 II. I have not sat in a seat for 180 days to
5 acquire that credit. I proficiencied it. So,
6 from an educational standpoint, the word "was" is
7 germane.
8
Blended learning schools, online
9 schools, the whole series of experiences are now
10 different in how you acquire credit, although the
11 vast majority of education still counts 180 days
12 in seat time.
13 Q.
Okay. Well, thank you for explaining
14 those. I'm going to go back to the track of
15 questions I was asking kind of about your
16 background, some of your areas of expertise. And
17 so I'm actually going to clarify a question that's
18 been a while now that I've asked.
19
But in thinking about your educational
20 expertise, the expertise you claim based on the
21 education in your Ph.D. degree, do you believe
22 that anything -- any expertise you claim to have
23 gained through your Ph.D. degree is relevant to
24 the testimony you expect to give in this case?
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claim to be an expert, you can actually prove it
by knowing theories and practices. So when I
answer this, I think I probably know more about
board governance than most people do because I've
studied it and I've experienced it a lot. Whether
that makes me an expert, I don't -- I don't know.
Q.
Do you consider yourself qualified to
provide expert testimony regarding board
governance?
A.
Yes, I would.
Q.
Do you believe that your claimed
expertise in board governance is relevant to the
testimony that you expect to give in this case?
MR. HOGAN: Object to form.
A.
No. I -- I didn't think of governance
as being a part of this conversation.
Q.
I couldn't -- as I was asking that
question I thought I'd already asked it and I just
kept going, so all right.
Was your first job out of college as a
teacher in the William Henry Harrison Local
Schools?
A.
Yes.
Q.
What did you teach?
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MR. HOGAN: Object to form.
A.
Well, to the extent that they taught me
things about school finance, I suppose, yes.
Q.
And what did you learn during your
Ph.D. degree education about school finance that
is relevant to the testimony you expect to give in
this case?
A.
Actually the basic tenets of how public
schools are funded and how basic functions work,
and then you build from there. The longer, you
know, the farther back in the history it goes, the
more it modifies, but the more it stays the same.
There has to be some -- some exchange of
relationship between the funding entity and the
receiving entity and trying to figure out what
that value proposition is.
Q.
Do you believe that your -- well,
strike that.
Do you claim an expertise in board
governance?
A.
Well -MR. HOGAN: Let me object to form, but
go ahead.
A.
You know, if you're a physicist and you
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A.
Industrial arts.
Q.
Looks like you were there for maybe
just one school year; is that right?
A.
That is correct.
Q.
And then you left for Red Path
Implement Company Construction; is that correct?
A.
That is correct.
Q.
Where you were a foreman.
A.
That is correct.
Q.
Why did you leave teaching to become a
foreman with a construction company?
A.
$5,300.
Q.
More money?
A.
Yeah.
Q.
All right.
A.
So I can't remember years, but I can
remember numbers pretty well. But I got paid
$9,200 as a first-year teacher. I worked for Red
Path Implement to supplement that during the
summer. He was so impressed with my work that he
asked me to come to work in his construction crew,
which I had never worked in before, and he offered
me $14,500. And so in August I took the money.
Q.
So you --
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A.
I worked there two years; did pretty
well for him.
Q.
What kind of construction was it?
A.
High steel, grain bins. So you could
be anywhere from one foot off the ground to 160
feet off the ground with no -- no cables. So it
was an interesting -- it was an interesting job.
I don't have a fear of heights, so it -- that was
a prerequisite. But we built steel buildings,
grain bins, grain elevators.
Q.
What did you teach when you were a
teacher with William Henry Harrison Local Schools?
A.
I answered that before. Industrial
arts.
Q.
I'm sorry. Thank you. Was it -- what
level of -- what grade levels was it?
A.
High school.
Q.
And then you left your position as a
foreman to become the London City Schools
agricultural educator in 1980; is that correct?
A.
That is correct.
Q.
All right. And what were your job
duties there?
A.
I taught agricultural education.
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Department of Education in the federal Perkins or
not at that time it wouldn't have been Perkins,
but the vocational education act required more
help, and so they went up to Ohio State and they
hired a bunch of us.
Q.
What was your first position with the
Ohio Department of Education?
A.
Supervisor of agricultural education.
I basically supervised ag teachers like myself. I
was chosen as outstanding young ag teacher in
1985, and that led to them wanting to move me to
the Department of Ed. At that time the Department
of Ed was actually viewed as a pinnacle of a
career in education in Ohio.
Q.
So you left your job as an agricultural
educator to join the Ohio Department of Education
in part because that was considered the pinnacle
of an educational career?
A.
It was -- it was considered to be a
worthy cause to help support the field and make
sure that teachers that were in the field were
doing a great job for students, yes.
Q.
If you worked for the Ohio Department
of Education, you were proud to be a member of
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Q.
And what grade levels?
A.
High school.
Q.
So why -- why did you end up coming
back to teaching after being a foreman?
A.
Well, London's the hometown, family
farm. Waking up and going to work 140 feet off
the ground in 7 degree weather and welding, I kind
of decided that, although the money was better, I
didn't really want to do that the rest of my life.
So I became the ag teacher at London.
Q.
And you taught there for approximately
six years?
A.
That's correct.
Q.
And then you joined the staff of the
Ohio Department of Education in 1986, correct?
A.
That -- that is nearly correct. I
actually became an employee of the Ohio State
University, which was on loan, permanent loan, to
the Department of Ed. Just for the average person
they thought we worked at the Department of Ed.
Q.
And why was that arrangement set forth?
A.
As I understand it, there was a
limitation that the legislature had placed on the
number of employees that could be at the Ohio
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that department; is that right?
A.
Absolutely.
Q.
Why is there a supervisor of
agricultural education -- strike that.
As the supervisor of agricultural
education, did you work directly with agricultural
educators like you used to be?
A.
Yes.
Q.
In my mind I'm thinking that principals
would typically have that job. Why were you
interfacing directly with agricultural educators?
A.
It was primarily the product of federal
legislation. So we were actually paid to make
sure that career technical programs were highly
effective and over the years the development of a
series of supervisory support. They were not
supervisory in the nature that you would do a
teacher evaluation. You did program evaluations.
There were additional funds provided to those
programs above and beyond the basic formulas. And
so it was possible for a program to fall below
expectations and to lose its funding. That was
part of my role.
But most of the role was very
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collaborative and supportive of teachers and
creating opportunities. The FFA was a statewide
organization that -- that we operated out of the
Department, young farmers, skill events. So there
was a whole range of things that made it a more
enriched experience for the young people.
Q.
So the FFA, is that Future Farmers of
America?
A.
It was in 1994 or '95, but since then
it's FFA. It doesn't stand for anything.
Q.
And what did you -- when did
you -- strike that.
Was your next position assistant
director within the Ohio Department of Education?
A.
Supervisor was the next one.
Q.
I'm sorry. After supervisor did you
move to becoming the assistant director?
A.
There's two supervisor positions, one
in ag ed, one in administrative planning,
budgeting and reporting -Q.
I see.
A.
-- and that is where I spent a lot of
time across the board, not just agricultural
education, but all of career technical education.
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Q.
Okay. And what did you -- what were
your job duties as associate director?
A.
So there were -- there were three
associate directors, one in adult work force, one
in programs, and one in planning, budgeting and
analysis. I was the planning, budgeting, and
analysis. I basically was the boss of the
supervisor for administrative planning, budgeting,
and reporting folks. So I had been over in that
office, came back to ag, came back as associate
director.
Q.
Do you believe that your experience in
the Ohio Department -- as associate director in
the Ohio Department of Education is relevant to
the testimony you expect to give in this case?
A.
Yes.
Q.
How so?
A.
It was during that time
that -- that -- and I'll rarely claim personal
progress, but I was the major architect of the
funding system for career tech in Ohio. There was
a period of time, the DeRolph case, they -- they
redid K-12 education generally, but they didn't
know what to do with career tech, and so they left
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Then I was promoted back to assistant
director in the ag ed division. So I returned to
agricultural education after time in planning,
budgeting, and recording.
Q.
Okay. And do you recall when you moved
from agricultural education service supervisor to
a broad -- a supervisor with broader
responsibilities?
A.
These jobs usually ran -- as I recall,
I got promoted, what is it, 15 years there, 15
years. And they were pretty evenly spaced. I
can't recall the exact year.
Q.
Okay.
A.
I was a supervisor for I think three
years, maybe, at the ag ed level and three at the
supervisor, and then assistant director three or
four, and then the associate director finished out
the time.
Q.
And so doing that math, I couldn't do
it as fast as you can, but how long do you think
you'd served as associate director before leaving
the Department of Education in 2001?
A.
Don't hold me to the exact number, but
I think it was about four years.
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1 it. They assumed that career tech was the tech
2 centers, the career tech school districts. They
3 didn't realize that over 50 percent of all career
4 tech was delivered through things like ag was in
5 regular schools. And so there was a big uproar in
6 the State over how the whole thing was handled.
7
And so they basically gave me a
8 lobbyist card and I went to work with some
9 Senators and House of Representatives people and
10 put together a funding system that
11 supported -- that -- that brought up to speed
12 this -- the funding systems for career tech
13 education.
14
During that time I became infinitely
15 more aware and taught in the in-depth analysis of
16 the regular school finance system, because what we
17 were trying to do was marry -- as much as possible
18 marry some of the things that they did in what was
19 at that time the SF-12 or the SF-3 over into
20 career technical education, charge offs, millage,
21 the whole nine yards of the relationship between
22 the local money and the State money.
23 Q.
And you find that experience that you
24 just described relevant to the testimony you
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1 expect to give in this case?
2 A.
I -- I would in the sense that
3 it's -- it's the beginning of a fairly long
4 history of understanding how school funding works
5 down at the front-line level. There's statutory
6 law and then there's actual practice in the field,
7 how people come into a school and determine
8 whether a school receives funding or not, the
9 checks and balances, the paperwork, the data
10 collection.
11
You learned in that process, for
12 example, that an FTE sounds like a simple concept
13 in Ohio, but there's at least eight or ten
14 different full-time equivalent definitions. So if
15 you were in special ed, career tech, regular ed,
16 they were different. So you had to sort through
17 them. You learned the difference between average
18 daily attendance and average daily membership;
19 membership being not average daily attendance.
20
You -- I had an opportunity to work
21 across a number of states, because we were trying
22 to find best practices. So you started to get
23 clarity around a lot of the subtleties that
24 sometimes are just don't -- you don't see them.
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1 A.
-- or is the superintendent of a
2 building, which means they're a maintenance
3 supervisor. And so we switched terminology. A
4 lot of our top people that worked with business
5 and industry, we gave them business-facing names.
6 Those that worked with the school districts still
7 had school-facing names, like principal and
8 treasurer.
9
So Butler Tech, 2001 to 2010, was
10 a -- kind of a Camelot kind of experience.
11 Q.
Why?
12 A.
It was just a great -- it was a school
13 that had reasonable resources, incredible staff,
14 and it had not had leadership that had any sense
15 of aspiration. So once they were given some free
16 rein to really become famous, that's what they
17 did. They -- they really -- and, you know we
18 were -- when we got done around the 2010 range,
19 we -- we could -- we had the data to claim we were
20 the highest-performing, lowest cost, and largest
21 career tech school in Ohio. And we were average
22 among the national Baldridge applicants that year,
23 which Baldridge applicants are some of the cream
24 of the crop across the country, both in the
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Q.
Okay. You left the Ohio Department of
Education in 2001 to join -- what was it, to join
or create the Butler Technology & Career
Development School?
A.
Oh, no. It was there long before I
came.
Q.
Okay. This is not a -A.
D. Russel Lee would have been the
found -- founding superintendent, but -Q.
Okay. I think I -- I think I know that
school.
Okay. So you joined the Butler
Technology & Career Development Schools in 2001,
leaving Ohio Department of Education at that time;
is that correct?
A.
That is correct.
Q.
Okay. And what did you do with Butler
Technology & Career Development Schools?
A.
I was their superintendent. Shortly
after coming there we used the term CEO because,
to the business world, a superintendent is
somebody that manages the custodial staff at
night -Q.
I see.
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1 private sector, public sector, and in the health
2 industry. So it was a -- it was a great
3 experience. We went from about 7500 students to
4 26,000, no new taxes. Administrative costs went
5 from about 14 percent to 7. We drove a lot of
6 money into the classroom, designed all kinds of
7 incredible systems that allowed teachers to be
8 really successful. So -9 Q.
Do you consider your experience at
10 Butler Technology & Career Development Schools to
11 be relevant to the testimony you expect to give in
12 this litigation?
13
MR. HOGAN: Object to form. Go ahead.
14 A.
Yes, to the extent that, again, I
15 had -- I had to interact with the financial side
16 of the organization and to understand how finances
17 worked to make sure that when we put programs in
18 that we could afford them. Although we had a
19 fairly large local tax base, we still had to rely
20 heavily on State funding, and so we were
21 practically and infinitely, you know, intimately
22 engaged in the financing process.
23
That, by the way, is the beginnings of
24 some early blended learning. Subsequently they've
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1 been called blended learning schools, but we
2 actually had online education. We started online
3 coursework in 2001. So we were -- at -- at the
4 time I guess we would have probably said that we
5 were on the bleeding education of education
6 reform. Sometimes we got ahead of the technology.
7 Q.
What is "blended learning"?
8 A.
"Blended learning" is where you combine
9 digital content with live instruction. So instead
10 of having kids in a classroom with teachers and
11 the teacher presents the material and when the
12 bell rings you move to the next class, extreme
13 blended learning would be like the arts academy
14 where the live teachers were passion driven,
15 dance, theater, music, visual arts. The academics
16 were digitally delivered to the students. So the
17 students studied online, but they studied online
18 within a bricks-and-mortar building. They didn't
19 sit at home. And the adults in the building were
20 what they fell in love with. They were in love
21 with the arts. And so we were wildly successful
22 with -- with that. Natural science center was
23 equine, indoor riding arena, breeding horses and
24 zoo animals. So people who loved animals, they
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Q.
And that all of the online learning at
Butler Technology & Career Development Schools
occurred within a brick-and-mortar building that
was the school; is that correct?
A.
No. That's not correct.
Q.
Some of it occurred while the student
was home?
A.
That's correct.
Q.
Okay. Did a student need to attend the
brick-and-mortar building at Butler Technology the
same way that a student would need to attend a
brick-and-mortar traditional school?
MR. HOGAN: Object to form.
A.
That's hard to answer -Q.
It is.
A.
-- in the sense -Q.
Let me try to ask a better question.
A.
Yeah.
Q.
In other words, did you record a
student's attendance at Butler Technology by
recording whether the student physically showed up
at the school?
A.
The answer to that would be we were
under the same rules and regulations that applied
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came to school early, stayed late, worked through
lunch. And the digital mechanisms allowed us to
be able to run these small, intimate high schools
of 130 to 150 kids and deliver all the academics
at very high academic performance, high graduation
rates, high college attendance.
Most of these schools started out as
at-risk schools. You had to be in really bad
shape to be allowed to go to them. They
subsequently kind of inverted. They were so
popular that now high-end kids attend them.
Q.
When you were at Butler Technology
Career -- & Career Development Schools and while
there was blended learning at that school, did the
school track the duration during which a student
was online during each day?
A.
No.
Q.
How did Butler Technology & Career
Development Schools record a student's
participation in online learning?
MR. HOGAN: Object to form.
A.
We -- we never had the need to. We
never tracked -- we simply tracked whether they
learned the content and passed the assessment.
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to other bricks and mortar, and the answer to that
is no, we did not. They did not have to show up
at a certain place.
We had to make sure that our school
year was a certain length and that our daily
schedule was a certain length, and that's
basically what we reported to the State was how
many FTEs, full-time equivalent, students we had,
based on career tech definitions, which were
basically at that time about the same as other
bricks-and-mortar schools.
Q.
Okay. In 2010 you left the Butler
Technology & Career Development schools to go to
Cornerstone Charter Schools; is that correct?
A.
That's correct.
Q.
And this -- you founded Cornerstone
Charter Schools; am I correct?
A.
That is correct. I want to clarify
that it says it's the "Founding Chief Executive
Officer." I certainly don't want to lay claim to
the fact that I created Cornerstone Charter
Schools because Cornerstone Schools were a group
of Christ centered, not Christian, but
Christ-centered schools that were in Detroit that
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were an institution, an absolute institution. And
Clark Durant had developed those and he had raised
12 to $14 million a year in philanthropy to keep
his schools running, and in 2008 that became a
little bit difficult in Detroit, even for Clark.
And so he converted two of his schools over to
Cornerstone Charter Schools. So technically I was
his first CEO.
Q.
I see. And was one of those schools
Cornerstone Health High School?
A.
Eventually they opened Cornerstone
Health High School. I -- again, it will be pretty
rare that I claim -- claim something for myself
but, in this case, I was the only one there, so I
designed the model of the Cornerstone Health High
School. I had left before the first year of
implementation.
Q.
Why is it called Cornerstone Health
High School?
A.
The mayor called, Mayor Bing called
Clark Durant and said I need a law enforcement
school and a health school. Can you do that? And
Clark said of course we can. And he called me and
he says which one do you want to do? Being Clark,
Page 60
1 relationship support whereas our kids tended not
2 to have that problem. And so the design just
3 turned out to be in pods of 50 students.
4
The charter world is a lower dollar
5 environment, so you have to have more kids to
6 survive financially. So it had to be 600 kids
7 instead of 130 or 150 kids.
8
We did not have -- with Butler Tech we
9 had 26,000 students and coursework all over the
10 place. The schools that I described were a very,
11 very, very, very, very small part of it. But we
12 had resources that we could apply.
13
So the Cornerstone was entirely
14 different design.
15 Q.
When it comes to being a blended
16 school, is it the same in the sense that a
17 significant portion of the curriculum at
18 Cornerstone Health High School was delivered
19 online?
20 A.
The -- the content at Cornerstone was
21 delivered both digitally and with live teachers.
22 So the kids would attend the school as a
23 bricks-and-mortar location. In this case they
24 usually did come all the time, since it was nine
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he never asked if I could do it or not, he just
asked which one, and I chose health.
Q.
So it was a -A.
So it was -- it was a school that was
focused -- like the arts academy was focused on
the arts, this one was focused on people that were
interested in caring for other human beings,
health being the easy-to-understand vernacular.
Q.
And Cornerstone Health High School was
a blended school as well; is that right?
A.
That is correct.
Q.
Okay. And did it operate in roughly
the same way as you described Butler Technology?
A.
It did not.
Q.
Can you explain the difference?
A.
Yeah. At that point, Butler Tech was a
career technical school, so we had a -- had a
slightly different mission than what the high
school was.
So in this case what we did was we
changed the instructional practices. We had
online -- we -- we split up the teaching position
into rigor, relevance, and relationships, because
the kids in the inner city needed lots of
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through twelve and it was inner city and entirely
different circumstances than Butler County. And
the portion of time that they spent on digital
content was determined on a student-by-student
basis based on what their needs were.
Q.
At Cornerstone Health High School, did
the students receive online education only while
in the brick-and-mortar building?
A.
For the most part I would -- here's
where I'm surmising, because I left. The way it
was designed, the answer to that was yes, they
should have, yes.
Q.
Okay.
A.
There could be homework if the students
had access to online capabilities, but rarely
they -- they rarely had that.
Q.
Did Cornerstone Health High School
record the duration of time that a student spent
online in a given day?
A.
No. It's pretty irrelevant.
Q.
Why is it irrelevant?
A.
It's about whether the kid learned the
information.
Q.
In 2011 you became the director of the
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Ohio Governor's Office of 21st Century Education,
correct?
A.
That's correct.
Q.
Let me back up one moment. I take it
your experience at Cornerstone Charter Schools you
find to be relevant to the testimony you expect to
give in this case, correct?
MR. HOGAN: Object to form.
A.
Not -- not particularly, because it was
Michigan finance, although Michigan and Ohio were
very similar in how they operated, but that
fairly -- I mean, I didn't add anything by being
at Cornerstone Charter Schools other than what I
had learned at Butler Tech other than a few more
years of experience, another year of experience.
Q.
So your experience with Cornerstone
Charter Schools did not add significantly to your
expertise that you're claiming as an expert
witness in this case; is that fair?
A.
That is correct.
Q.
Okay. And then you joined the Ohio
Governor's Office of the 21st Century Education as
its director in 2011; is that correct?
A.
That's correct.
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year I was there we had started the efforts to do
intense review of the school finance system.
Q.
Okay. We'll come back to some of that
later, I think. Your next position was the
Oklahoma Secretary of Education, which you became
in 2013; is that correct?
A.
Technically those two are listed right
there together. I was hired as the Oklahoma
Department of Career & Technology Education state
director in March. I then subsequently was
appointed by the Governor in June to the Secretary
of Education. So the one came before the other.
Q.
Do you find that your experience as
Oklahoma Secretary of Education or with the
Oklahoma Department of Career & Technology
Education to be relevant to the testimony you
expect to give in this case?
A.
To the extent that it extended my
understanding of school finance and of unique
educational programs, I would say yes.
Q.
So in -- you left the Ohio Governor's
Office of the 21st Century Education to join Carpe
Diem Learning Systems, LLC, in 2012; is that
correct?
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Q.
And what did you do as director of the
Ohio Governor's Office of 21st Century Education?
A.
I -- it spells it out there. I
"oversaw identification,
development...implementation of educational policy
for pre-K through higher" ed. "Collaborated on"
the "creation and passage of major educational
reforms...maintained communications...engaged in
policy research, and advocated for improved
student performance and cost effectiveness."
Q.
And do you find your experience in this
position to be relevant to the testimony you
expect to give in this case?
A.
Yes.
Q.
How so?
A.
It was there that we put into place and
got laws passed that allowed for more convenient
blended learning, more online, more of the Credit
Flex. We extended the Credit Flex legislation to
make sure that there was a broader array of
choices for students and teachers to use to
acquire knowledge and skills.
And we also spent a great deal of time,
although we didn't pass it while I was there, the
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A.
That is correct.
Q.
And you were the CEO and managing
member of Carpe Diem as well as the chief strategy
officer for different periods of time between 2012
and 2016, correct?
A.
That is correct.
Q.
All right. Can you tell me about your
experience with Carpe Diem?
A.
Yeah. It was a pure startup, nobody
behind it. There were five of us that started the
process. The chief strategy officer was the title
they gave me while I was away in Oklahoma.
Q.
I see.
A.
So the Carpe Diem Learning Systems, I
was a -- it's a for-profit management company that
I owned shares in, privately held. So during that
period of time I was a managing member when I was
present, but when I got called to be the state
director in Oklahoma I couldn't play both roles.
Q.
I see.
A.
So that's the difference between those
two.
Q.
Okay. And, you know, your -- your CV
states that your duties at Carpe Diem were to
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oversee the full creation and operation of the new
company, correct?
A.
That's correct.
Q.
That's accurate, right?
A.
Yes.
Q.
And you "raised the initial funding to
get started, coordinated the start of the first
expansion school in Indianapolis, and provided
strategic planning support" for Carpe Diem; is
that accurate?
A.
That is correct.
Q.
And you -- you started the second or
you were "instrumental in starting the second
school in Cincinnati and led the effort to get" a
"charter authorization in Texas"; is that correct?
A.
That's correct.
Q.
In other words, you started a community
school in Cincinnati that was a Carpe Diem
Learning System school; is that right?
A.
We -- Carpe Diem Learning Systems is a
management company.
Q.
Right.
A.
So Cincinnati Learning Schools was the
nonprofit board that came from -- it was a
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Q.
You don't find anything in this
document that would be inaccurate relating to your
biography, correct?
A.
Other than the number of years has
probably gotten longer.
Q.
Fair enough.
A.
I can't remember when we put this in.
I think it's more like 38 years now.
Q.
Okay. And it references in the second
paragraph, "the Carpe Diem educational model
created by Rick Ogsdon." Can you briefly describe
what that educational model is?
A.
Yes. It's the one, if you -- he
was -- operated a school in Yuma and it was a
blended learning model that we used to build
several of these schools, in fact, all of them
initially, a very prescriptive model that combined
digital content and classroom instruction. He had
coaches that managed a -- basically a large call
center, 300 cubicles. And you can go online and
see pictures of it, and then classroom instruction
along the side. It was a six through twelve.
Instead of high school or middle school, it was
six through twelve. And he got lots of press
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volunteer board made up of some prominent people
in Cincinnati that got a community school charter
from Cincinnati Public and we assisted them
with -- helped them make that possible, and then
we became their management company.
Q.
Okay. I'm handing you what's been
marked ODE Exhibit 1344. If you look at the
bottom left margin of the page, you'll see a
website Carpediemschools.com/leadership. I'll
represent to you that we printed this out from
that website.
Does this appear to be your bio from
the Carpe Diem Learning Systems website?
A.
Yes.
Q.
Now, you're no longer at Carpe Diem,
correct?
A.
Carpe Diem no longer exists.
Q.
Oh, I'm sorry. And it -- why -- well,
we'll come back to that.
Take your time and read this, this bio.
My only question here is -- I actually have two
questions. First, is the information in this bio
accurate?
A.
Yes.
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coverage in 2010, '11, and '12 related to pretty
high performance that he was able to get out of
that school.
Q.
This is the school in Yuma?
A.
The school in Yuma.
Q.
Okay.
A.
That resulted in lots of finance
people, financial backers to want him to expand
the schools. He was -- this is his own
profession, professing of this is that he didn't
want to run schools. He was kind of the idea guy
behind the model, and so he was looking for a CEO,
somebody that knew how to run organizations. And
that's how we got paired up, by people, mutual
friends.
Q.
And you mentioned that Carpe Diem
Learning Systems, LLC, no longer exists; is that
right?
A.
June 15th we dissolved the company.
Q.
Why?
A.
I would say disagreements
with -- between Rick and I over performance. The
schools have not performed like we wanted them to.
So he took a group of them and I took Cincinnati.
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Q.
Okay. So you -- so the next item on
your resume is Cincinnati Learning Schools. And
you're the superintendent of Cincinnati Learning
Schools at present, correct?
A.
That's correct.
Q.
And that you became the superintendent
of Cincinnati Learning Schools in June of 2016; is
that correct?
A.
July.
Q.
July? Does Cincinnati Learning Schools
still employ the Carpe Diem educational model?
A.
It -- it does to a certain extent
because you can't turn a school on a dime, but
we're rapidly moving away from it and going to the
model that I had grown to experience at Butler
Tech and Cornerstone where we had infinitely
better results.
Q.
I see. What was it about the Carpe
Diem educational model that you found not to work?
A.
The primary problem was a disconnect
between the digital instruction and the live
instruction, because they had a large call center
that the kids would leave the instruction of the
teachers and go over to the call center and there
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primarily focused on academics, and so there
wasn't the excitement. Now, that's the theory.
Q.
That's the theory. In other words,
that's your theory -A.
We -- we haven't turned the Cincinnati
school around yet, so I can't claim that I know
how to solve the urban educational experience.
Q.
Right. Was -- Cornerstone Health High
School was an urban school in Detroit, right?
A.
That's correct. And it's been -- to my
knowledge, it's been successful. I haven't looked
at their performance data recently, but they're
still in operation, which is a pretty good sign.
Michigan has pretty aggressive closure processes
for schools that don't perform.
Q.
You -- you briefly mentioned in
your -- the answer before last that there was an
issue at Carpe Diem, while you were at Carpe Diem
with -- I'm going to use my own words. I don't
mean to put words in your mouth, but with kids
being savvy and essentially taking advantage of
the fact that the coach and the teacher were
different people in order to find ways to not do
work.
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were coaches and they were separate people, so
there was a disconnect. The more savvy the
student was, the more they could play those two
parts to not do any work, and the one thing urban
kids are is incredibly savvy.
The other problem that we discovered
was it simply wouldn't enroll. Kids just didn't
like it. As Professor Tyznik at Ohio State said,
it doesn't matter how good the dog food is if the
dogs won't eat it. And so we had very low
enrollments. And kids just don't want to sit in a
call center and do their work on digital
computers. So those two things, not -- there
wasn't enough excitement and passion.
When I talked about the arts academy
and the natural science center and even while
keen, he was -- its central thing was social
maturity. Kids that were having difficulty with
managing themselves, they just had never been
taught how to manage their relationships, anything
to capture a kids' imagination, and then academics
come on board and the kids work hard on it.
In Rick's model, which worked
reasonably well in Yuma, in Rick's model, it was
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Is that a fair assessment of what you
were saying?
A.
That -- that's correct. They -- they
found ways to -- it was mostly around our notion
that kids should be able to move at their own
pace, and we didn't put restrictions on how
quickly they needed to get to certain points. In
other words, our grading was A, B, and not yet,
and kids were perfectly comfortable with being not
yet.
Q.
I see.
A.
So there was no impending F in their
mind. So it had really nothing to do with -- the
two separations just compounded the problem
because you had to have tight communications and
you've got 250 kids in there and there's teachers
and everything else, but -- so we learned from
that that you need to have much more direct
consequences on the grading side.
Q.
Was there an issue with the fact that
there were two separate people, a coach and a
teacher, versus just one teacher handling both of
those jobs?
A.
I don't think it's the fact that there
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were two teachers, there are two people. It was
how we built that relationship and built the
infrastructure to make sure that they worked as a
team.
Q.
In other words, the team of teacher and
coach just didn't work out very well?
A.
The way Rick Ogsdon designed it, that's
correct.
Q.
And the result was that kids were not
able -- excuse me.
The result was that kids could get away
with not doing much work?
A.
I would say that the -- the kids
figured out how to delay their need to work till
later in the process, which then put a greater
burden on the teachers at a later time, which then
resulted in -- in not achieving as much as you
could have if they had engaged quicker earlier.
Q.
When you were at Carpe Diem, did -- did
Carpe Diem or the schools that Carpe Diem managed
measure the duration of time that students spent
online in a given day?
A.
No.
Q.
Do you find that your experience at
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term a central office, and the board asked me to
play that role. So I organized the -- the
financial side. We have to have a separate
treasurer hired, and we do that, but it's, you
know, the back office information. Everything
that you would think of around a school district
superintendency is what I'm responsible for. The
principal's still the same principal and the staff
are generally the same staff, and so my -- my role
really didn't change from May to July. It was
just where they wrote the check and what it cost
them.
Q.
Understood. Now, in 2008 you founded
Cogniac Consultants. Did I pronounce that
correctly?
A.
Actually, no, but it's a nice try.
My -- my dad and mom's farm was Cogniac and it was
named after a stream.
Q.
Oh.
A.
So I carried the name on to -- Cogniac
Consultants has absolutely no bearing and I've
already been told by my wife that I need to pick
another name because most people refer to it as
cognac, and cognac and education probably
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Carpe Diem Learning Systems -- forgive me if I
already asked you this question. Do you find that
your experience at Carpe Diem Learning Systems is
relevant to the testimony you expect to give in
this case?
A.
Yes.
Q.
How so?
A.
I have actually experienced over the
last three years, now going on four, the funding
that is received by Carpe Diem, the Cincinnati
Learning Schools from the Department of Education.
In a blended environment there's a direct
relationship with how we're required to record and
track students and what they do and how we get our
funding, and so that's very directly related to
this discussion.
Q.
Okay. And I don't believe we covered
this yet. We've talked about your transition from
Carpe Diem to Cincinnati Learning Schools, but can
you tell me a little bit about your job as
superintendent of Cincinnati Learning Schools.
What are your general job duties?
A.
Basically when we dissolved the
management company the school was without what I
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shouldn't go together, so -Q.
That's debatable.
A.
Yeah.
Q.
Okay. So Cogniac Consultants. You
started Cogniac Consultants in 2008. You founded
it and act as its CEO; am I correct?
A.
Yes.
Q.
And you started Cogniac Consultants
while you were at Butler Technology & Career
Development Schools, correct?
A.
That's correct.
Q.
Can you describe generally what Cogniac
Consultants is?
A.
It's an LLC that was anticipating my
retirement from Butler Tech. And not knowing what
else I was going to get into, I was planning on
doing some work around school boards and school
finance and those sorts of things. It's existed
during this entire time, but has never really done
anything, because I've always been asked to do
something else instead of it.
Q.
Do you consider your experience as CEO
and founder of Cogniac Consultants to be relevant
to the testimony you expect to give in this case?
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A.
No.
Q.
Are you serving as an expert witness in
this case through Cogniac Consultants?
A.
That's a good question. I -- this is
kind of embarrassing to say, but I don't think so,
no.
Q.
So -A.
But if I am, I'd be happy to let you
know later. I can't remember which -- which I
turned in as to whether it was retaining Cogniac
Consultants with me or myself.
Q.
Or simply hiring you yourself -A.
That's right.
Q.
-- as an ind -- as an actual person,
correct?
A.
Yeah. Since I'm the only owner of
Cogniac Consultants, it's hard to separate the
two.
Q.
Okay. So as we sit here today, you
just do not recall whether you were retained by
Zeiger, Tigges & Little to provide expert
testimony in this case simply pursuant to an
agreement between the firm and you as an actual
person or pursuant to an agreement between the
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Q.
Let me ask that question again. What
area of expertise, Dr. Sommers, do you claim
to -- to have relevant to your planned testimony
in this litigation?
A.
I have -- I have years of experience of
working with educational programming, specifically
blended learning, digital learning, online
instruction, and how those get funded by funding
systems and funding rules and funding procedures
that are provided by the Ohio Department of
Education.
Q.
Do you claim any other areas of
expertise that you find to be relevant to the
testimony you expect to give in this litigation?
A.
Those are two pretty broad categories.
I don't know whether you're looking for specifics.
Short of educational programming and funding,
there's probably not too much left, other than how
protocols occur between districts and the -- and
the Department of Ed.
Q.
What do you mean by "how protocols
occur between districts and the Department of
Education"?
A.
How the Department communicates with
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1 firm and Cogniac Consultants; is that fair?
2 A.
That is correct.
3
MR. CLARK: Okay. Let's go off the
4 record for a second.
5
THE VIDEOGRAPHER: We are off the
6 record. The time is 2:47.
7
(A recess was taken.)
8
THE VIDEOGRAPHER: This marks the
9 beginning of disk No. 2. We are back on the
10 record. The time is 2:54.
11 Q.
What areas of expertise, Dr. Sommers,
12 do you claim to have relevant to your planned
13 testimony in this litigation?
14
MR. HOGAN: Object to form. Go ahead.
15
MR. CLARK: What's the objection to
16 form?
17
MR. HOGAN: What do you mean by
18 "relevant"?
19
MR. CLARK: Your objection -- you're
20 objecting to the form of the question because I
21 used the word "relevant"?
22
MR. HOGAN: Yeah. What do you mean?
23
MR. CLARK: Okay. I just wanted to
24 make sure I understood.
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school districts and how school districts have
grown to expect certain -- certain approaches to
implementation of -- of rules, regulations, new
laws.
Q.
So is it fair to list the areas of
expertise that you claim to be relevant for the
testimony you expect to give in this litigation as
the following three things generally: First,
educational programming; second, educational
funding; and, third, how protocols occur between
districts and the Department of Education?
A.
I want to clarify that the experience
is not related to educational funding and
educational programming from top to bottom. It's
how those interact at the district or school
level. It's not the statutes. It's not the
policies. It's how it interacts at the school
level.
Q.
Okay. And are there any other areas of
expertise that you find to be relevant to the
testimony you expect to provide in this
litigation?
A.
At this point, no. I am -- I want to
be clear. When I speak of "educational
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programming," it's everything from standards to
student performance, assessments, and
instructional design. I don't know whether -- I
don't know what comes to your mind when I say
"educational programming." It's the educational
process from start to finish.
Q.
So you consider yourself -- I just need
to be clear on this: You consider yourself an
expert on the educational process from start to
finish?
A.
That's correct.
Q.
Every aspect of the educational process
from start to finish is within your area of
expertise?
A.
In the sense that I know how those
various pieces interact and collaborate. Whether
I could teach mathematics? No. The expertise is
sub expertise of actual instruction. But I know
how content standards relate to instructional
design and instructional design in turn leads to
student performance, and I understand what student
performance is as we understand it in the
education business today.
Q.
Okay. And other than what you've
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understanding how some of these systems
interacted.
Q.
And you were a school board member with
London City Schools, correct?
A.
That is correct.
Q.
All right. So including that stint as
a school board member in London City Schools, you
can think of nothing else beyond what we've
discussed in this deposition that you would cite
as a source of your expertise in the areas you've
identified today, correct?
A.
Correct.
Q.
Do you have expertise in the topic
of -- strike that.
Do you understand what I mean by the
term "eSchool"?
A.
I -- I don't know what you think of
when you say eSchool, but I know what eSchools are
in my mind.
Q.
That's a much better question for me to
ask. What are eSchools in your mind?
A.
eSchools, as -- as I define them, are
what we in the business would call pure online,
where there's no anticipation that a student would
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testified to just now, can you think of any other
areas of expertise that you find to be relevant to
the testimony you expect to give in this
litigation?
A.
No.
Q.
What, if anything, other than what
you've already testified to regarding your
background, is the source of your expertise in the
areas you've identified?
A.
I don't believe there's anything else.
Q.
So the source of your expertise for the
areas that you've held yourself out as an expert
have been covered completely already in this
deposition; is that correct?
A.
I would say that it is correct.
Q.
And there's nothing else beyond what
we've discussed in this deposition that -- that
you would site as a source of your expertise in
the areas that you've identified, correct?
A.
It -- the only exception to that might
be my stint as a school -- elected school board
member. We did talk that about tangentially,
but -- but I just want to -- because during that
period of time, that four years was critical in
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arrive at a school building on a regular basis;
that they would take instruction in their home or
in a hospital or at a remote site, and that the
instruction is typically asynchronous, although
sometimes synchronous. But for the most part it's
an individual student working individually on
digital content.
Q.
And an eSchool, as you've described it,
is not the same as a blended school, correct?
A.
That is correct.
Q.
There is no eSchool that is a blended
school nor is there a blended school that is an
eSchool, correct?
A.
By definition, those two are different.
Q.
You don't contend to have an expertise
in eSchools; is that correct?
A.
No. I actually have a reasonable
experience with eSchools. At the Butler
Technology & Career Development Schools we ran
some programming that was purely eSchool.
Q.
Okay. So you claim an expertise in
eSchools; is that correct?
A.
I -- I claim an understanding of how
eSchools operate and how they're funded.
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Q.
But not an expertise, correct?
A.
Not in an expertise of actually
operating an eSchool exclusively by itself.
Q.
Do you claim an expertise in anything
related to eSchools?
A.
Yes.
MR. HOGAN: That's okay.
Q.
And what is that?
A.
Having actually operated a group of
students in a purely online environment at Butler
Tech is one subset of this school district. I
have understandings of how funding works and how
records are kept and how -- student interactions,
and also the limitations of the model, both the
advantages and limitations.
Q.
When you say you have an understanding,
do you hold yourself out as an expert in that
topic?
A.
I would -- I would hold myself out as
understanding the majority, if not all, the
nuances of the eSchool environment as it relates
to funding.
Q.
Do you consider yourself qualified to
provide expert testimony on that topic?
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Q.
I think it's a little bit different. I
can repeat the question if you'd like.
A.
Yes.
Q.
You do not consider yourself an expert
in considerations made by JCARR as part of the
rulemaking process, do you?
A.
I'm familiar with the process, but who
knows about the expert. I mean, I don't know.
Q.
Okay.
A.
I've had to assemble and present rules
at JCARR and I got them passed. So whether that
makes me an expert, I tend to think I'm -- I would
be a little more modest and suggest that I'm not,
so -Q.
Do you consider yourself qualified to
testify as an expert witness relating -- regarding
the topic of considerations made by JCARR as part
of the rulemaking process?
A.
No.
Q.
And you do not plan to provide
testimony relating to that topic in this
litigation, do you?
A.
The -- the closest I would come to
having any testimony around JCARR would be my
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A.
Yes.
Q.
You do not have any expertise in the
procedures and functions of the Joint Committee on
Agency Rule Review, do you?
A.
I have experience with JCARR.
Q.
Okay. Do you hold yourself out as an
expert on the procedures and functions of JCARR?
A.
No.
Q.
And you would not -- you do not plan to
give expert testimony regarding that topic, do
you?
A.
No.
Q.
Okay. You do not hold yourself out as
an expert in executive agency participation in
JCARR, do you?
A.
No.
Q.
And you do not plan to provide
testimony relating to that, do you?
A.
No.
Q.
You do not consider yourself an expert
in considerations made by JCARR as part of the
rulemaking process, do you?
A.
I thought that's what you just asked,
but --
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experiences at the Department of Education and the
expectations that the Department had in what had
to go to JCARR. But, other than that, no.
Q.
Do you plan to testify regarding your
experiences as a fact witness in this litigation?
A.
Not that I'm aware of.
Q.
Okay. You plan to testify as an expert
witness in this case, correct?
A.
That's correct.
Q.
In other words, you will provide
opinions in this case, but you do not plan to
provide factual testimony in this case about
things that you yourself have observed, correct?
A.
I'm -- when you say, "factual," you
know, I'm going to opine on falsehoods. I don't
want to -Q.
That's fine. Let me strike that
question. It's okay.
A.
Yeah.
Q.
Do you consider yourself an expert
regarding the FTE review manual that the Ohio
Department of Education publishes?
A.
I wouldn't say I know it intimately.
Again, I don't know what you mean by "expert."
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1 Q.
Well, do you find yourself qualified to
2 testify as an expert witness regarding the FTE
3 review manual?
4 A.
Do I understand how the review manual
5 manifests itself in the school district? Yes.
6
Do I understand what it's currently
7 used on the back side in ODE? No.
8
So my expertise is related to that
9 manual -- the complexity for me is that manual
10 drives a lot of my expert opinion about how things
11 are applied, because I understand the manual. I
12 understand how it's applied to bricks-and-mortar
13 regular district, community schools. And so that
14 expertise is fairly significant.
15
Having helped write some sections of
16 that in the past, I have seen it operate on the
17 ODE side, which is very similar to where it is.
18
I've also been the recipient of reviews
19 and application of that handbook in an actual live
20 situation with actual live students.
21
To that extent I consider myself an
22 expert in the handbook. I don't want to hold
23 myself out as an expert of how to write the
24 handbook or how to connect it to the law.
Page 92
1 the student, the capacity to start on a beginning
2 certain date and end on a certain date, and be
3 open for business for a certain period of time,
4 just like every other school district.
5
It also depends on whether the student
6 is physically present in the educational
7 experience at least one minute out of every 105
8 hours or, to be more practical, at least one hour
9 out of every 105 hours.
10
And if the answer is that the school
11 began on a certain date and ended on a certain
12 date that met the requirements for a year's worth
13 of operation and the student shows up for at least
14 an hour every 105 hours, the answer would be yes,
15 they deserve the same funding that every school in
16 the State of Ohio would have received for a
17 student that only showed up for one hour every 105
18 hours.
19 Q.
So just so I'm clear, it is your
20 opinion that a community school in Ohio is
21 entitled to full funding if a student in that
22 community school logs in for one minute every 100
23 hours, correct?
24 A.
105 hours.
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Q.
And it sounds like you plan to testify
in this litigation regarding at least some aspects
of the FTE review manual; is that right?
A.
That is correct.
Q.
Okay. Is it your opinion that an
eSchool in Ohio should be entitled to full funding
if not even a single student receives one minute
of education?
A.
The -- the question's incredibly
hypothetical. So we know that regular districts
have to at least offer one minute of education.
The student has to be present in the building at
least one minute out of every 105 hours in order
to receive funding. So when you say not one
minute would be different than at least one minute
every 105 hours.
Q.
Okay. Is it your opinion that a
community school in Ohio is entitled to full
funding if an ECOT student logs in for one minute
every 100 hours?
A.
Actually the log in is a question as
well, because log in and education are two
entirely different things. So the question is a
combination of how much coursework is offered to
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Q.
With that clarification; is that
correct?
A.
It is -- it is the law. I can't -- I
can't get rid of the kid and I do get funding for
it, whether that be bricks and mortar, whether
that be a regular district, whether that be
eSchool, irrespective.
Q.
Is it your opinion that the FTE review
manual must be promulgated by rule through JCARR?
A.
The -- the handbook since it has a
potential of adversely affecting individuals or
organizations, districts, it was always the policy
of the Department of Ed to go through JCARR rules
on anything of that substantial nature.
Q.
You mentioned that you had experience
drafting portions of the FTE review handbook; is
that correct?
A.
Many years ago.
Q.
When was it?
A.
Probably would have been in the '97 to
'99 range.
Q.
Okay. And did you -- did the portions
of the FTE review handbook that you authored get
promulgated through JCARR?
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A.
I wouldn't -- wouldn't want to claim
one way or the other because I can't recall, but
the expectation is probably did, because whenever
we had any -- any funding rules that we wrote,
anything that was related to funding, particularly
funding, were almost universally passed through
JCARR.
Q.
Generally what portions of the FTE
review handbook did you author?
A.
The career technical portions.
Q.
The career technical portions. In what
years? I'm sorry?
A.
It would have been back in the late
Nineties.
Q.
So you believe that the career
technical portions of the FTE review manuals in
the late Nineties were promulgated by rule through
JCARR, to your recollection; is that correct?
A.
It -- to my recollection, they would
be. And I'm still remembering the long numbers
that matched the -- the administrative rule, the
OAR, the ORC. And anything that was related to
funding that defined when data was collected, how
it was checked, what the formulas were, anything
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and I'll direct your attention to item 17, which
is your name. Do you see that, on page 3?
A.
Yes.
Q.
Okay. Would you please take a moment
to read the paragraph that describes the subject
of expert testimony that -- strike that.
Would you just take a moment to read
the paragraph that follows your name there?
A.
Okay.
Q.
And do you plan to offer expert
testimony on all of these topics?
A.
I think we spelled out at the beginning
of this conversation that the "FTE manual's
enlargement of" financial or "funding calculation
criteria beyond statutory mandate" was off the
list.
Q.
I'm sorry. I didn't follow you as fast
as you read it. Where is that?
A.
It's the third and second line from the
last.
Q.
F -A.
FTE. Start with FTE.
Q.
Yeah. Starting with, "FTE manual's
enlargement of funding calculation criteria beyond
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that would affect the school's funding passed
through JCARR.
Q.
And it would be your opinion, then,
that for the same reasons that the career
technical portions of the FTE review manual in the
late 1990s were promulgated through JCARR, at
least to your recollection, the FTE review
handbook of today should be promulgated through
JCARR; is that fair?
A.
That is fair.
Q.
Okay. Do you plan to testify -- I
think we already covered this and I believe you
said no, but do you plan to testify regarding
whether or not the FTE review handbook must be
promulgated by rule through JCARR?
A.
Not that I'm aware of.
Q.
Okay. Bear with me for a second while
I find my exhibit.
I'm handing you what's been marked ODE
Exhibit 10 -- 1002. Have you seen this document
before?
A.
I don't recall seeing this.
Q.
Okay. I'll represent to you that this
is a witness summary provided by counsel for ECOT,
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statutory mandate"?
A.
Mandate, yes.
Q.
That section, you do not plan on
offering expert testimony regarding that topic,
correct?
A.
That's correct.
Q.
And you mentioned that we mentioned
this earlier. Before we went on the record in
this deposition, Mr. Hogan notified me that that
was being taken off of the list of topics of
expert testimony for you; is that right?
A.
That's correct.
Q.
And you agree with that, correct?
A.
That's correct.
Q.
And in part -- and you have a hard
stop, as I understand it tonight, today at 5:15
that you have to leave to get back to Cincinnati;
is that right?
A.
That's correct.
Q.
Indeed, and before we got on the record
in this deposition, we discussed eliminating this
one -- one subject and that the effect of that
would be to streamline this deposition; isn't that
right?
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A.
I -- I don't know what impact it had on
the deposition, so -Q.
Sir, do you recall Mr. Hogan and I
discussing that at all before we got -A.
Yes.
Q.
The fact that by eliminating this topic
it might streamline this deposition a bit. Do you
recall our -- our communication right before this
deposition along those lines?
A.
I remember the communications about
dropping that. I remember the communications
about the length of deposition.
I do not recall having conversations
around this being dropped streamlining the
deposition.
Q.
Okay. Let's take the first -- the
first item on that, in that paragraph. It says
first of all, paragraph 17, it provides your name,
correct? And it says that you will provide expert
testimony regarding a list of topics, correct?
A.
Yes.
Q.
It does not state that you will provide
lay testimony, or testimony regarding your
personal experiences, right?
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Schools, London Public Schools received funding
based on FTEs that were calculated because the
student was enrolled in the school, was recorded
as a student there, and the school was open a
certain number of hours and a certain number of
days and that generated an FTE. What happened
from the educational standpoint was completely
unrelated to the funding process.
Now, there were -- there were certain
limits put in place. Originally that was
literally true. You would take a count day,
literally a count day in October. The first full
week of October you took a count day out of there
and the student had to be on the school's records
for that day and then they calculated how many
students. And, in -- in theory, the student could
have left the day after and the schools -- never
returned again and the schools would have received
funding.
Subsequently, over the years
that -- check points have moved to two count days,
in the case of community schools have moved to
nine count days. So there were variations in who
was enrolled. But that's the testimony that I'll
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A.
That is correct.
Q.
Okay. And the first para -- first
topic identified is "the theory and calculations
of FTEs for brick and mortar schools," correct?
A.
Yes.
Q.
And you do intend to testify regarding
that topic, right?
A.
Yes.
Q.
And what expert opinions will you
provide regarding that topic?
A.
That the -- the construction of FTEs in
Ohio is based on the theory of opportunity to
learn. So what that means is unlike, for example,
the State of California in its roughest form has
average daily attendance as the basis of FTEs. In
the State of Ohio it's called average daily
memberships, or FTEs are calculated based on how
long the school's in operation, not how long the
student is engaged in the school. And so the
theory in calculations of FTEs in the State of
Ohio have never been linked to actual student
engagement. It's only been the opportunity for
the student to engage.
So when a kid comes to London Public
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provide.
Q.
Okay. The next topic in paragraph 17
of Exhibit 1002 is, "ODE's lack of measurement of
student engagement in any form of school."
Do you plan to provide expert testimony
on that topic?
A.
Yes.
Q.
And what expert opinion -- strike that.
What opinion do you plan to provide
regarding that topic?
A.
I plan to point out that the Ohio
Department of Education has never collected
student engagement data from any school district
at any time in the history of the State of Ohio.
Q.
What do you mean by "student engagement
data"?
A.
The idea that we would actually check
to see whether or not a student was actively
engaged in the learning process has never been
asked of any other -- of any school district. We
can see that very practically in that there was
never any ask other than the 105 hours you've got
to be there at least one hour or one minute out of
every 105 hours. That's the only thing that would
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be checked, and that's hardly student engagement.
There's never any interaction with the schools on
what happens during the school day.
For example, pep rallies, students
working as office help, study halls, youth
activities that are unrelated to the educational
curriculum, photographs, planning for a school
event that was unrelated to the curriculum, those
things were never factored in, have never been
collected, recorded, managed, or expected of any
school district, community, regular district,
private, public, whatever.
Q.
The next topic identified in paragraph
17 of Exhibit 1002 is, "the parallels in
calculating FTEs between online schools and brick
and mortar schools."
Do you plan to offer testimony
regarding that topic?
A.
Yes.
Q.
And what is your opinion regarding that
topic?
A.
To date there's never been a -- a
significant differentiation between those two
other than the 920 hours versus the 105 hours.
Page 104
1 be able to do the same thing. The students should
2 be able to leave the computer and go do exciting
3 experiments or do lifetime experiences and
4 activities and field trips.
5
So that the parallels between those
6 two, it's very important that we maintain the
7 parallel nature of calculating that FTE. To do
8 otherwise would be to unfairly disadvantage one
9 form of education over another, and could
10 adversely impact the possibilities for educational
11 choice in Ohio.
12 Q.
Do you think that it is as easy for an
13 online school to confirm that a student is
14 participating in education as it is for a school,
15 either a blended or brick-and-mortar school, where
16 the student has to physically be at a location
17 where a teacher can view them?
18 A.
Actually the -- the fact that the
19 student doesn't have to be at a physical location
20 in order to receive funding or to be identified as
21 a student enrolled is the important question here.
22
There is no requirement in the State of
23 Ohio that a student show up every single day in
24 order to receive funding at a school.
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There's a few of variations around it, but they
were all based on opportunities for engagement,
opportunities to learn kind of theory and also the
length of the school year, total hours available.
So the parallels are -- the other thing
is this notion that if you're an online school,
the notion that how would you be treated equally
to the bricks and mortar gets at the question of
do you hold them to a different standard. I would
claim that historically there's never been a
different standard, that it's the opportunity to
learn. It's not the actual student engagement
that was ever in question.
That parallel would also be around
the -- the notion that instructional practice in
bricks and mortar and online should be extremely
variable to afford the student the ability to
learn, and the FTE is unchanged. For example, if
I run a blended-learning school and I send kids
for two weeks to Capstone Experiences off campus
outside the bricks and mortar, the State of Ohio
does not subtract that from my time that I'm
working with students. They actually applaud it
and honor it. Online schools would be expected to
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Q.
That's -A.
There's none. And, second of all, the
ability to judge a student's engagement is the
Holy Grail of observation and understanding the
educational process. We, none of us, can
accurately measure student engagement even when we
desperately want because student engagement's the
very definition of whether we're going to succeed
at the end. So the notion of being able to
measure student engagement in any form of
education has so far been elusive to educational
practitioners, let alone finance people.
Q.
In other words, student engagement is a
complex concept, correct?
A.
That is correct.
Q.
And one aspect of student engagement is
the notion that a student actually shows up to
participate in receiving curriculum; is that fair?
A.
Yeah. Again, the notion of showing up,
as long as we use that in it broadest terms of
showing up where the educational experience is
scheduled and planned. It isn't showing up to a
school building.
Modern-day education, some of the most
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1 creative and most successful schools are -- are
2 experience-based schools that the student rarely
3 appears. Some of our most successful experiences
4 with high-end students are when students don't
5 come to the school. They go to the university to
6 take post secondary enrollment options and dual
7 credit. So the notion of showing up is -- is
8 broadly interpreted, yes. That's the first step.
9
But the second step is how do you know
10 when they show up that they actually engage. And,
11 in fact, historically the Department of Education
12 has never asked that question. Otherwise we
13 wouldn't have pep rallies, study halls, office
14 helpers, or anything else, because the schools
15 would be losing money.
16 Q.
So -17 A.
Now, there are some states that
18 actually expect you to show up at a certain site
19 or to document where you had the educational
20 experience, and those states fund on ADA, average
21 daily attendance, folks like Texas and California.
22 And those are entirely different state systems of
23 funding than what Ohio is or Michigan or Indiana.
24 Q.
Okay. So I believe my question was one
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experiences and elsewhere, if you ring that out to
its full complement, the answer would be yes, that
would be student -- that would be the beginnings
of an indication of student engagement.
Q.
Okay. And you -- I think you stated
that showing up -- first of all, let's define
"showing up."
A.
Yeah.
Q.
Let's define "showing up" to mean
either physically going to a brick-and-mortar
school or -- and staying there or logging in to an
online curriculum platform and staying logged in.
So that -A.
That is not a fair definition of
"showing up."
Q.
Well, for purposes of my question, can
we agree that that's what I mean by "showing up"?
A.
That's fine.
Q.
Okay.
A.
I'll answer according.
Q.
Fair enough. So showing up is the
first step to student engagement; is that fair?
A.
Under the definition you've provided,
no.
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1 aspect of student engagement is the notion that a
2 student actually shows up to participate in
3 receiving curriculum and I asked you whether that
4 was a fair statement, and I just want to make sure
5 that in your answer you provided an answer to
6 that, which you may have, but I'm not sure. So
7 let me ask that again.
8
One aspect of student engagement is the
9 notion that a student actually shows up and
10 receives curriculum. Strike that. Can I move
11 this down? Okay.
12
Sir, one aspect of student engagement
13 is the notion that a student actually shows up to
14 participate in receiving curriculum; is that fair?
15 A.
And, as I answered before, the question
16 is what do you mean by "showing up." If it means
17 showing up to a specific building for a specific
18 period of time or a specific computer screen for a
19 specific period of time, the answer to that is no,
20 that's not appropriate.
21
The appropriate -- if the question is
22 showing up to the experiences that were made
23 available by the school, both on site or online
24 and within the community and within business
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1 Q.
Would you agree that a student that
2 does not go to a brick-and-mortar school at all or
3 does not log in to an online platform at all has
4 less of a chance of being an engaged student than
5 someone who does do those things?
6
MR. HOGAN: Object to form. Go ahead.
7 A.
No, because -- because of your
8 definition of "showing" up has now limited my
9 educational experiences to either that building or
10 that computer screen. And all the research behind
11 education says those are the -- those are logical
12 places for learning to occur, but certainly not
13 the complete panoply of possibilities. And, in
14 fact, limiting yourself to those two is avoiding
15 opportunities or negating opportunities for higher
16 student engagement.
17
And I use the classic example that's
18 been around since the Fifties and Sixties is co-op
19 education. Co-op education, the student doesn't
20 show up to the bricks-and-mortar school. They
21 show up to the educational experience that's in
22 the workplace; profoundly successful in turning
23 around lots of kids.
24
I'll use the other example is -- is
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1 Upward Bound is a learning experience for young
2 people where they're not showing up at bricks or
3 mortar or on the computer screen. They may well
4 be signed up for the bricks-and-mortar school, but
5 they're taken away for two or three weeks or four
6 weeks on a learning experience that changes their
7 lives.
8
So, by definition, showing up to a
9 specific location or a specific computer screen is
10 denying -- if -- if you define "student
11 engagement" that way, you've denied the schools
12 the capability of really having a rich experience.
13 Q.
For a traditional brick-and-mortar
14 school, is it relevant to the question of whether
15 a student is engaged whether the student actually
16 shows up at the brick-and-mortar school?
17 A.
The -- the question of student
18 engagement has never been a question that anybody
19 asked other than the teacher and the professionals
20 involved in the classroom setting. So student
21 engagement is what educators try to achieve. They
22 do that by having a full range of educational
23 experiences available to them. The most creative
24 are the ones that combine online digital content
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school. It is your opinion that whether a student
ever actually logs in to an online -- eSchool's
online platform is irrelevant to whether the
student is actually engaged in his or her
education; is that correct?
A.
It's irrelevant -- I -- I need to hear
your question again, because this is like a double
negative.
Q.
Sure. Let me -A.
The point is -Q.
Why don't I ask that question again.
A.
Yeah.
Q.
Okay.
A.
Ask it again.
Q.
Is it your opinion that whether a
student ever actually logs in to an eSchool's
online platform is irrelevant to whether the
student is actually engaged in his or her
education?
A.
That is correct. It is irrelevant. In
fact, the research on online education would
suggest that students that are only engaged on the
online platform and not experiencing a richer,
broader set of experiences are going to perform
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with potential brick and mortar in the amounts
that makes sense to kids. Sometimes it's all
online. But also the really creative ones also
include community engagement and community
experiences.
Q.
Okay. I appreciate these complete
answers. I do. But I think I'm asking a more
simple question. Let me try a different question.
In a traditional brick-and-mortar
school, you would agree that a student shows up by
physically coming to that school, correct?
A.
No.
Q.
And so would you -- is it your opinion
that whether a student physically shows up at a
traditional brick-and-mortar school is irrelevant
to the question of whether a student is engaged in
his or her education?
A.
It is irrelevant -Q.
Okay.
A.
-- to the question because there are so
many examples where student engagement is much
higher when they don't show up at the physical
building.
Q.
And let's take an example of an online
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less well than those that are from time to time
disengaged.
Q.
So whether an ECOT student, for
example, ever logs in to ECOT's online platform
has nothing do with how well that student does in
his or her education?
A.
That is correct.
Q.
Okay. So the next topic that
you -- that's identified in paragraph 17 of
Exhibit 1002 is "ODE's" -- this is a quote, "ODE's
failure to provide customary and expected notice
of changes and standards."
Do you plan on offering an opinion
regarding ODE's asserted failure to provide
customary and expected notice of changes and
standards?
A.
That -- that one I am prepared to
provide expert opinion on how historically ODE has
provided customary and expected notice of changes
and standards.
Q.
So you are not -A.
Yes. I'm -- I'm planning on testifying
on that one.
Q.
Specifically as the words are stated in
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paragraph 17; is that correct?
A.
That's correct.
Q.
And what is your opinion about that
topic?
A.
My opinion in understanding when
communications and how communications occur
between ECOT on ODE or not just ECOT, but all the
eSchools that ODE failed to do customary e-mail
distributions, professional development, and
upgrades on what is obviously a significant change
in how they expect data collection, "they" being
the Department of Education.
Q.
And will you offer testimony regarding
what are customary e-mail distributions from the
Department?
A.
Yes.
Q.
And what are -- what is your opinion
regarding the customary e-mail distributions of
the Department of Education?
A.
It goes beyond e-mails. The -- the
customary Department of Education procedures that
I both participated in and experienced -Q.
May I interrupt for just one second to
try to -- what I'd like to do is when I ask that
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also a review of when the communications were sent
out of the Department of Education.
Q.
Okay. So your testimony will be not
only your opinion regarding sort of standard
e-mail distribution practice, but also what
occurred in this particular situation as you
understand it?
A.
That's correct.
Q.
Okay. You also mentioned that your
opinion regarding this topic involves -- I'll read
it. I don't understand it, but it was
"professional development and upgrades on what is
obviously a significant change and how they expect
data collection." Can you explain that?
A.
Yes. Whenever -- whenever there was
going to be significant shifts in what school
districts had to report or to have available upon
audit there was always a fairly healthy lead time,
communications that were directly from e-mail or,
in the old days, mail, and also some overt attempt
to go to the field with instructions on what was
expected, and in many cases it also included
changes in the EMIS systems which had to be
instructed to the various technical folks that
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question, I want to focus just on the e-mail
process based on your answer.
A.
Okay.
Q.
I don't mean to pigeonhole your
response to just e-mails, but I'm hoping to focus
with my question just on the e-mail -A.
Fair enough.
Q.
-- is that fair?
A.
Yes. I -Q.
Because I know we have a -- a short
time frame here and so I'm trying to go as fast as
I possibly can. So I apologize for interrupting
there, but I just thought maybe you can --A.
No, that's -- that's fine. E-mails,
yes; just typically all communications of this
significance would be distributed via e-mail to
superintendents, assistant superintendents.
Q.
And will you testify as to whether that
occurred in this instance?
A.
Yes.
Q.
And what -- on what will you rely as to
the testimony on whether that occurred in this
instance?
A.
Communications from ECOT itself, and
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would be loading data into their EMIS system.
Q.
And will you testify regarding whether
the opinion you just stated on how the Department
handled this in the past was followed in this
instance?
A.
I think I understand the question.
Yes.
Q.
Okay. In other words, you will have
testimony not only regarding your opinion of how
what you're describing occurred and has occurred
historically, but also you will testify as to your
understanding of what occurred this year regarding
the FTE review process?
A.
That's correct.
Q.
Do you have any other opinions that you
would offer relating to that category, ODE's
asserted "failure to provide customary and
expected notice of changes and standards"?
A.
No.
Q.
That is the extent of the testimony you
expect to provide on that topic, correct?
A.
Yes.
Q.
The next topic in paragraph 17 is, "the
unreasonable, arbitrary, and punitive application
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of standards mid-school year to ECOT."
Do you in fact expect to provide an
opinion regarding what ECOT asserts to be "the
unreasonable, arbitrary, and punitive application
of standards mid school year to ECOT"?
A.
Yes.
Q.
And what will your opinions be
regarding that in your testimony?
A.
Based on the fact that ECOT appears to
be the only school that's an eSchool that's going
through this procedure, it seems unreasonable and
arbitrary that if you assume -- even if you did
assume that the standards were changed in a fair
and reasonable manner why a single school gets
narrowed, singled out versus all the others. And,
further, why all of this sudden attention to
student engagement doesn't apply to all school
districts.
Q.
It is -- is it your understanding that
ECOT is the only eSchool to -- in which the ODE
has sought student durational data this year?
A.
It's my understanding that there are
schools other than ECOT that did not have to
report this information. I don't know how many
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brick-and-mortar school?
A.
In my opinion they can't be any
different. They can't be based on any different
theories or principles simply because to do so
would either to advantage or disadvantage them
when compared to other school opportunities. And
the goal of the State should be to be agnostic to
what approach to educational methodology is used
and be consistent so that students make choices
based on what their needs are and what the success
is and educators make choices on success, not on
what enriches the school the best.
Q.
Okay. I think my question was a little
more -- on a different level than your answer, in
other words, I think your answer was theoretical.
But let me ask a more specific
question: Is there any reason in your opinion
that an FTE review of an eSchool would be
different than an FTE review of a traditional
brick-and-mortar school even if the theories
underlying those reviews remained the same?
A.
Not really, no.
Q.
So you can think of no reason
whatsoever why there would be the single,
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did. I just know that there are schools that did
not have to. ECOT may not be alone, but I know
that the entire universe was not -- not -- did not
have this procedure applied to them.
Q.
The entire universe of eSchools did not
this year, is that your opinion?
A.
That's correct.
Q.
Okay. And what are the eSchools that
you -- that, in your opinion, were treated
differently this year than ECOT?
A.
I -- I'm not in a position to give you
all of them, because that would be from memory.
But schools like K12 and Connections.
Q.
So K12 and Connections are two examples
of schools that, in your opinion, were treated
differently in an FTE review this year than ECOT
was in its FTE review this year?
A.
That's my understanding, yes.
Q.
And your opinion on this topic is based
on that understanding; is that correct?
A.
That is correct.
Q.
Is there any reason in your opinion
that an FTE review of an eSchool would be
different than an FTE review of a traditional
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1 slightest difference between an FTE review of an
2 eSchool and an FTE review of a traditional
3 brick-and-mortar school?
4 A.
The fact that both types of schools
5 have a full array of instructional practices
6 available to them and they both work under the
7 same rules as far as time that has to be available
8 to the students to learn, the answer -- as of
9 today, the way the school funding system and FTE's
10 calculated, the answer would be no.
11 Q.
So if -12 A.
And to help you understand that is a
13 blended school has a portion of its time online.
14 London or Columbus Public, there may be periods of
15 time that students are on online education, which,
16 albeit not all inclusive online, certainly
17 portions are. That's increasing on a regular
18 basis, dual credit. You have students that are
19 100 percent online in university coursework.
20
So if we were to apply one approach to
21 online and not the other, there's going to be
22 disparities in how we would figure out what FTEs
23 and what funding was available for exactly the
24 same practices based purely on which -- which type
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of school we're looking at.
Q.
So if there is any single difference
between the way ODE conducts an FTE review of an
eSchool and the way ODE conducts an FTE review of
a brick-and-mortar charter school, you would find
that difference to be unreasonable and arbitrary,
correct?
A.
That's correct.
Q.
Every single possible difference would
be unreasonable and arbitrary, correct?
MR. HOGAN: Asked and answered. Go
ahead.
A.
That's correct.
Q.
All right. You also mentioned
that -- strike that.
The -- the topic we're discussing here
also uses the word "punitive." In this witness
list provided by ECOT, ECOT asserts that -- that
you will testify as to the "punitive application
of standards" mid year to ECOT.
Do you have an opinion on whether there
was punitive application of standards mid year to
ECOT in this case?
A.
Yes.
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regarding "ODE's adoption of standards" allegedly
"inconsistent with public policy embodied in
legislation"?
A.
That was the other one that we took out
at the beginning. So the answer to that one's no.
Q.
Okay. You don't plan to offer any
opinion regarding that whatsoever?
A.
That's correct.
Q.
Okay. Have you formed an opinion
regarding that?
A.
Not that I'm aware of.
Q.
Well, when you say, "not that I'm aware
of," I mean, it's either you either have an
opinion regarding that subject or not, right?
A.
Yeah. So I'd say that was no, right?
Q.
Okay. So you do not have an opinion
regarding that whatsoever?
A.
Haven't thought about it enough to know
whether I have an opinion or not. Sorry. I see a
distinction.
Q.
In other words -A.
If I haven't thought about it, I don't
know whether I have an opinion or not. So that's
what I don't know.
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Q.
And what is that opinion?
A.
When you ask for data after the fact
and threaten to take schools' funding away from
them based on a data request after the fact, it's
punitive. I -- I cannot go back and create
something that I didn't have and that I didn't
know that I was supposed to have, and if I lose my
funding, I'm out of business. To me that's
punitive.
Q.
Okay. So when you testify -- if you
would testify at this litigation as to your
opinion that there was punitive application in
this case, you mean that not that there was a
retaliatory intent by ODE; is that correct?
A.
That's correct.
Q.
In other words, that's not what you
mean by punitive, that ODE had a retaliatory
intent, correct?
A.
I -- that's correct.
Q.
Okay. The next topic on -- in
paragraph 17 of Exhibit 1002 reads, "ODE's
adoption of standards inconsistent with public
policy embodied in legislation."
Do you plan to offer an opinion
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Q.
And it's fair to say if you haven't
thought about it, you haven't formed an opinion
about it, right?
A.
That's fair enough.
Q.
And maybe you'll form an opinion about
it later, correct?
A.
Correct.
Q.
But you do not plan to testify about
that topic at all in this litigation, correct?
A.
That is correct.
Q.
And then the next topic in the
paragraph we already identified as one that you
would not testify as to. It reads, "FTE manual's
enlargement of funding calculation criteria beyond
statutory mandate."
Again, you do not plan to testify
regarding that topic in any way, shape, or form,
correct?
A.
Correct.
Q.
Do you have an opinion regarding that
topic, regardless of your intent to testify about
it?
A.
I have no opinions formulated.
Q.
The next topic in paragraph 17 of
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Exhibit 1002 is, "the difference between
'enrollment' and 'attendance.'"
Do you plan on offering an opinion
regarding the alleged difference between
"enrollment" and "attendance"?
A.
Yes.
Q.
And what is your opinion on that topic?
A.
We've actually covered that already.
It's the -- the notion that "enrollment" is, by
definition, a student enrolling in a school, and
regardless of their attendance or, even more
precisely, their engagement, they're still
enrolled.
"Attendance" is whether they physically
participate or show up in the educational
experience, regardless of where it is. They may
still not be engaged, but they were physically
present at the educational experience when
attendance. And those two things are entirely
different, both in theory and in practice.
Q.
So it's one thing for a student to be
enrolled on the books of a school. It's a
different thing for a student to actually attend
that school's educational program.
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"Enrollment" is they're on the books as
this is the official school where they're supposed
to be attending.
Q.
So for a student to get credit for
attending school on a particular day, that student
needs to show up and stay at that school.
A.
Show up at some educational
experience -Q.
And -A.
-- that is -- that is related to where
the school expects them to be.
Q.
And stay there, correct?
A.
Yes.
Q.
Rather than simply show up and walk
back out the door, correct?
A.
Yeah. The educational experience,
wherever the educational experience is, the
student, if they're going to be in attendance, has
to be physically present with the educational
experience during the time that they're claiming
attendance.
Q.
And for the entire time that they claim
the attendance, correct?
A.
That's correct.
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A.
That is correct. And that's been the
norm in Ohio for all types of school districts.
Q.
And enrollment has to do with whether a
particular school can claim a student, so to
speak, whereas attendance has to do with whether a
student actually shows up; is that fair?
MR. HOGAN: Object to form.
A.
As you described it, yes.
"Enrollment" means that they can claim
the student for enrollment for FTEs, for the
corresponding funding.
"Attendance," whether or not the child
shows up or not, is an entirely different question
with the caveat of the 105 hours. There are some
limitations in law that -- that the school has to
meet.
Q.
In your opinion, the concept of
"attendance" as opposed to the concept of
"enrollment" deals whether the student actually is
in school and stays in school on a given day,
correct?
A.
I got lost on the two. That, what you
just described, is pretty much what I would define
as "attendance."
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Q.
And for -- take the example of ECOT and
eSchool. For a student to claim to have attended
via online portion of ECOT's curriculum on a given
day, that student needs not only -- needs to not
only log in, but log in and stay for the duration
of that curriculum, correct?
A.
For the online portion, if they're
claiming that they're doing online portion -- it's
an interesting question. Yeah. They -- to have
"attendance" means that they have to be physically
in the presence of the educational experience.
Q.
Not just for a minute, but for the
entire duration of that curriculum, correct?
A.
That's correct.
Q.
Is that the only thing you plan on
testifying to regarding the difference between
"enrollment" and "attendance," that is, only the
difference between "enrollment" and "attendance"
versus the implications of that difference in this
litigation?
A.
Well, the -- the implications, of
course, are how those two words get applied to a
number of things around data collection and around
financial calculations.
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1
For example, historically in Ohio
2 attendance has never been a part other than very
3 tangentially. Either on count week or on the 105
4 hour it's tangentially been involved in the
5 funding question. Enrollment has been the key to
6 funding in the State of Ohio, not attendance. And
7 then attendance and student engagement, the actual
8 physical engagement in the experience itself are
9 entirely different as well.
10
So I would be providing expert
11 testimony around the applications of these two
12 words in typical bricks-and-mortar community
13 schools.
14 Q.
And what else will you testify to
15 regarding your opinion of the application of these
16 two words?
17 A.
The -- the application as it relates to
18 funding; the application as it relates to
19 performance results, as in, i.e., attendance; and
20 also in the -- the fact that neither one of these
21 are very well-correlated with actual learning on
22 any given day.
23 Q.
Neither attendance nor enrollment, in
24 your opinion, matters when it comes to whether a
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You said that, "It is increasingly
becoming the standard of educational quality is
actual achievement scores and growth."
A.
In other words, the school report
cards.
Q.
Okay. Is time the standard of quality
in education now in Ohio in any way, shape, or
form?
A.
It still exists to a certain extent
because we still grant credits and we still rely
on credit achievement for graduation. Some school
districts are not mastery based so they tend to
pass students on after they've been in school 180
days even though they may not be ready for the
next grade level. So, in practice, it -- we
haven't eliminated time as a measure of quality.
But that's the reason I say it's
increasingly become a measure of quality is actual
achievement, industry credentials, college
credits. Even college credits are time based
still, but some measure, ACT, SAT, State
achievement tests.
Q.
So as I understand it, there -- it is
still allowable in some instances for schools to
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student is actually learning, correct?
A.
That's incorrect. Enrollment and
attendance are not good predictors of learning
occurring. Otherwise we'd all have A students for
everybody that showed up for school every day. So
we have a huge disparity in educational
performance in the State of Ohio while we have a
much smaller variation in attendance rates and
even smaller variations in enrollments. So
there's no correlation.
Whether or not attendance is adverse to
education, it probably is. The engagement of the
student, though, is probably more important.
Put another way, time has been the
standard of quality in education for centuries,
and it really is a lousy measure of quality.
Q.
Is time the standard of quality in
education now in Ohio?
A.
It is not. It is increasingly becoming
the standard of educational quality is actual
achievement scores and growth.
Q.
You said that, "It is increasing
becoming the standard of educational
quality" -- strike that.
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measure the quality of education in terms of time.
A.
They -- they still measure it in terms
of seat time for the student who, yeah, basically
survives.
Q.
And that's still allowable under
relevant guidelines and law, correct?
A.
To the extent that you're granting
credit, yes.
Q.
And to other extents, correct?
A.
Not much else -Q.
Okay.
A.
-- because it doesn't impact your
student report card. It doesn't impact your
funding.
Q.
So it's still allowable for schools to
measure the quality of education based on time to
the extent the schools are granting credit,
correct?
A.
That's correct.
Q.
And you disagree with that standard,
correct?
A.
I think the general education community
disagrees with that standard, yes.
Q.
You do, too, correct?
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A.
Yes.
Q.
You want that standard to change,
correct?
A.
I think it was an expectation in Credit
Flex that time would be eliminated, yes.
Q.
But, in fact, it has not been
eliminated in terms of the law, correct, for the
reasons we've discussed?
A.
Actually from an educational standpoint
it has been. There -- there is a possibility to
grant credit without time.
Q.
Okay. But I think you just testified
that it is in some instances still allowable
for -A.
It is allowable, but it is not
restricted to time as the only measure of quality.
Q.
And you disagree with the standard that
still allows time to be used to measure the
quality of education, correct?
A.
That's correct.
Q.
And you want that rule or standard that
still allows this time measurement of the quality
of education to change. You want that allowance
to be eliminated, correct?
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A.
Not that I'm aware of, no.
Q.
And when you say not that you're aware
of, I just want to be clear. This is my only
opportunity. This is my opportunity on behalf of
ODE to get information regarding each and every
opinion that you plan to testify to at the -- at
the -- at the hearing.
And so when you say, "not that I'm
aware of," does that mean that you plan on
offering opinions that you will not identify to me
today?
A.
I -- I only say that because between
now and whenever the Court occurs there may be new
information that I would have. But I have no
plans on presenting anything more than what I've
presented to you.
Q.
And if you do come up with a new
opinion beyond those that you identify in this
deposition today between now and the hearing, will
you notify us through ECOT's counsel?
A.
Yes.
Q.
And will you provide us an opportunity
to depose you on those newly-formed opinions that
you plan on testifying to in the litigation?
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A.
I -- I have no interest in whether it
gets changed or not.
Q.
Well, it is your opinion that if that
standard that still allows time to be used to
measure the quality of education were eliminated
that that would improve the quality of education
for the schools that were using time to measure
the quality of education, correct?
MR. HOGAN: Object to form. Go ahead.
A.
Yeah. I -- in my mind, it might make a
difference if they didn't. That's the reason I
don't rely on it in my own schools. But that
doesn't mean I have any interest in changing it
for people that want to use time as their measure
of quality.
Q.
Okay.
A.
It's -- it's a part of the choices.
I -- I believe in choice, so I'm averse to
eliminating options, because who knows. Maybe
they're right and we're wrong.
Q.
Do you plan to offer any other opinions
regarding the topic of ECOT's asserted difference
between "enrollment" and "attendance" in this
litigation?
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1
MR. HOGAN: It depends on the
2 circumstances. If it happens, we'll deal with it.
3 I mean, I'm not committing to anything today, but
4 if there are new opinions we'll certainly make
5 them available to you.
6
MR. CLARK: Well, that's all I'm
7 asking.
8
MR. HOGAN: Okay.
9 Q.
So if indeed at the end of the
10 deposition we've established all of the opinions
11 you plan to offer, you tell me that there are no
12 other opinions you plan to offer, and then between
13 now and the hearing you say oh, there's another
14 opinion I plan to offer, we're going to have an
15 opportunity to depose you on that new opinion that
16 you determined you would offer after this
17 deposition, correct?
18
MR. HOGAN: What I will say is we would
19 disclose the opinion and we'll go from there. I'm
20 not committing to anything today, but -21 Q.
And you, sir, as an independent expert,
22 are you willing to be deposed if you come up with
23 a new opinion that you do not identify today but
24 you plan on testifying regarding?
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A.
that.
Q.
A.
Q.
A.
I would follow counsel's guidance on
ECOT's counsel's guidance?
ECOT's counsel's guidance.
And that's not your counsel, correct?
That's correct.
MR. HOGAN: I'm not saying we wouldn't.
I'm just saying we would address the circumstances
as they occur.
Q.
And you are going to follow the
guidance of the counsel of ECOT in this litigation
regarding this topic, correct?
A.
That's correct.
Q.
You follow the guidance of ECOT's
counsel regarding other topics in this litigation?
A.
No; not that I'm -- other than what
their interests were as far as topics that I might
be an expert in.
MR. HOGAN: I'm going to object to the
extent you're going to get into communications
that aren't about the factual matters.
THE WITNESS: Yeah.
Q.
The second-to-last topic in paragraph
17 of Exhibit 1002 reads, "arbitrary restrictions
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need a richer, deeper experience, and the proposed
approaches to tracking attendance and student
engagement or however else you want to describe
the wording is adversely compromising this
instructional methodology option.
Q.
Is it your understanding that the
methodology you're discussing right now would take
into consideration only log-in duration and not
documentation of noncomputer-based educational
opportunities?
A.
It's a combination of the two, but both
of them seem restrictive to me compared to other
schools as far as the instructional methodology
that's available to them.
Q.
Is it your understanding that the
methodology would somehow credit log-in duration
more than noncomputer-based educational
opportunity documentation?
A.
It's -- it's my opinion that the
methodology itself makes it more difficult for an
eSchool to have a rich range, array of
instructional methodology than other schools,
because other schools are not required to document
student engagement or log-in time or anything else
Page 139
1 imposed upon instructional methodology."
2
Do you plan on offering an opinion
3 regarding ECOT's asserted "arbitrary restrictions
4 imposed upon instructional methodology"?
5 A.
Yes.
6 Q.
And what will that opinion be?
7 A.
The methodology that's being proposed
8 to track student engagement I think is the word,
9 but attendance may be partly there because
10 engagement's nearly impossible to gauge, has been
11 the time that they've logged on the computers.
12
If you play that out from an
13 educational standpoint, I am now forced -- as
14 ECOT, I am now forced to keep my students on the
15 computer engaged in the computer screen even when
16 other instructional methodology may be superior
17 and result in better performance and, therefore,
18 the funding systems and its approaches to
19 collecting data are adversely limiting my choices
20 of how to educate the kids.
21
We would never tolerate that in a
22 bricks-and-mortar community school, and I don't
23 think we should tolerate that in an eSchool. In
24 fact, the research on eSchools suggest that they
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1 that is even remotely similar to that situation
2 and, therefore, it's arbitrarily restricting
3 methodology.
4
Put another way, for every minute a
5 teacher has to log what a kid is doing in an
6 eSchool, that's a minute that they can't be
7 instructing, and that restriction and that -- that
8 practice is not applied to any other school.
9 Q.
So in other words -- strike that.
10
So your opinion is that the
11 methodology, as we've been discussing today, as
12 you understand it, would impose an administrative
13 burden on eSchool teachers or officials simply by
14 virtue of the fact that it would take time and
15 resources to record log-in durational data and/or
16 other documentation of noncomputer-based
17 educational opportunities, but the requirement of
18 logging those things does not otherwise impact
19 eSchools; is that fair?
20
MR. HOGAN: Object to form. Go ahead.
21 A.
I -- I think there's two parts to this.
22
One part is the -- the fear that the
23 registration of online time would be considered
24 more valuable than the other and, therefore,
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1 arbitrarily the schools would be under duress if
2 they didn't show that online log-in time would
3 restrict or encourage the restriction of other
4 methodology being used in these schools. So
5 that's the first part.
6
The second part is the undue burden of
7 recording and tracking student engagement which is
8 not applied to anybody else in education would
9 further cause problems. In other words, I am
10 highly encouraged by this methodology of data
11 collection. I'm incredibly encouraged to limit
12 and narrow the instructional methodology, and I
13 might find that it's impossible to physically
14 document as a teacher what students are doing in
15 any way that I can feel confident about it, where
16 were it to be asked.
17
So my opinion is that it arbitrarily
18 imposes restrictions on instructional methodology.
19 Whether it's the intent of the data collection to
20 do that, the practice would almost assuredly do
21 that.
22 Q.
So you mentioned a fear that the
23 registration of online time would be considered
24 more valuable than the other, meaning
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going to have to think very, very carefully about
the educational experiences that I provide to
students.
Q.
So you have no reason to believe or
form an opinion that there's some sort of
different weighting in terms of how much -- in
terms of the hours, the online hours and the
noncomputer-based hours, would count in terms of
any sort of formula, correct?
A.
No.
Q.
Rather, your -- your opinion is that
teachers may refrain from providing
noncomputer-based opportunities for fear that they
would not be able to adequately document those
and, thus, lean more heavily upon
online education, online curriculum; is that fair?
A.
That is correct.
Q.
All right. And those two reasons that
you pointed out, that I just described as well as
the administrative burden of logging in this
information or creating this documentation are the
only two opinions you have regarding the arbitrary
restrictions imposed upon instructional
methodology as alleged by ECOT?
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1 noncomputer-based learning, correct?
2 A.
That's correct.
3 Q.
And do you have any reason to believe
4 that the methodology as you understand it would
5 value online time more than noncomputer-based
6 learning?
7 A.
Yes. I think it does in the simple
8 fact that you're asking for a teacher who may be
9 digitally or online separated and not face to face
10 with a student. A student claims that they go out
11 on a field trip and do an experiment, I
12 can't -- as a teacher I can review the report and
13 document the acquisition of knowledge, but I feel
14 very uncomfortable with saying that the student
15 actually spent four hours on that experience. So
16 the online time becomes the fall back, even though
17 because I can actually physically see it and the
18 student has to engage the computer and disengage
19 the computer.
20
So, from my opinion, from being a
21 front-line practitioner, this approach to data
22 collection, first of all, doesn't make any sense
23 because I -- I don't have to do that anywhere else
24 but, further, it dramatically restricts. I'm
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A.
Yes.
Q.
The last topic identified in paragraph
17 is the "relative performance of ECOT."
Do you plan on offering an opinion
regarding the relative performance of ECOT?
A.
Yes.
Q.
And what is that opinion?
A.
ECOT, if you look at its performance
and adjust it for the poverty level of the
students that it serves, is an average school in
the State of Ohio.
And so I've spent a lot of time in
performance data and comparisons and how you
interpret where to look for high-performing
schools. That's part of Baldridge. And so we're
typically mapping trend lines and what -- what we
call expected scores versus actual scores.
So ECOT kind of sits right in the
middle of that mix. They're not -- they're not
high performing compared to other schools in the
state. They're not low performing compared to
other schools in the state. They're just
basically right in the middle, kind of in
that -- probably in the 40th to 55th percentile.
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So I am prepared to give my opinion of where ECOT
sits as far as performance from an actual student
achievement standpoint.
Q.
You mentioned Baldedge; is that
correct?
A.
Yes.
Q.
What is that?
A.
Baldridge is a national quality
benchmarking system that's applied to private
companies, government agencies, schools.
The key to Baldridge is category 7,
which is results. Results have all to do with
comparability, comparability against past results,
comparability against targets, comparability
against peers, comparability against best in
class.
And so we are constantly, "we" being
myself or any organization we're in, we constantly
looking for schools that beat the odds,
outperform, and we go try to learn from them.
For ECOT, ECOT would be in the middle
of the pack of those kinds of schools.
We also would tend to, when we were
with the Governor, we talked about rankings, and
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A.
"Performance Index" is a calculation
the Department of Education does that's kind of
all inclusive.
Q.
Sir, generally, this is -- you haven't
seen this document before, correct?
A.
That's correct.
Q.
You did not prepare this document?
A.
No, I did not.
Q.
And is this document relevant in any
way to any of the opinions that you plan on
testifying to in the hearing?
A.
Actually probably tangentially I use
the Performance Index, but I also include
the -- the poverty rates -Q.
Okay.
A.
-- because the relative
position -- poverty accounts for about 85 percent
of the variability in student performance in
schools. So what you're looking for is those that
beat the odds on that 85 percent, lower it to less
than 75, 70 percent. So you have to do a
regression analysis to figure out which schools
are where on the poverty levels and then you look
for bright spots within each. We usually go
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they now rank schools on performance and want to
take off the bottom 5 percent, 5 percent being the
ones that need to be closed, to be reconfigured or
restructured or new principal and staff be put in
place. ECOT doesn't come close to those
bottom-of-the-pack schools that need to be
dramatically improved.
Q.
Do you have any other opinions that
you -- regarding the "relative performance of
ECOT," the last para -- the last topic identified
in paragraph 17 of Exhibit 10002?
A.
No.
Q.
I'm showing you what's been marked as
ODE Exhibit 1041. Have you ever seen this
document before, sir?
A.
No.
Q.
Do you have any idea of what this
document is?
A.
I can figure it out pretty quickly.
It's a list of the major eight school districts
with ECOT.
The "Indicators" I'm assuming is the
indicators met on the various test results.
Q.
All right.
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deciles.
Q.
We've been through all of the
paragraphs listed in -- sorry -- all of the topics
listed in paragraph 17 of Exhibit 1002.
Do you plan on offering any other
opinions on any topics beyond those listed in
paragraph 17 minus the two that you eliminated?
A.
No.
Q.
And do you plan on offering any other
opinions beyond what you have identified during
this deposition relating to the topics that do
appear in paragraph 17?
A.
No.
Q.
That is, all of the opinions that you
plan to offer in your testimony at this litigation
have -- you have now identified in this
deposition, correct?
A.
Except for the caveat that we said
before. I can't predict what the future holds and
potential opinions and it's between you two to
figure out whether -- what to do with that.
Q.
In other words, you -A.
I don't plan on any new ones.
Q.
And you hold no other opinions as we
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sit here today that you plan to testify to other
than those that we have already discussed in this
deposition, correct?
A.
That is correct.
Q.
Okay. I'd like to direct your
attention again, then, to the same paragraph and
look at the first topic.
The first topic was "the theory and
calculations of FTEs for brick and mortar
schools." Have -- has counsel for ECOT provided
you with any facts or data that you considered in
forming the opinions you plan to express in your
testimony relating to that topic?
A.
That's privileged.
MR. HOGAN: Any facts or data you
relied on is okay -MR. CLARK: Absolutely.
MR. HOGAN: -- as long as it's facts or
data.
MR. CLARK: That's -A.
No, they did not provide any facts or
data on that one.
Q.
Okay. Let me try that again. I want
to be careful. I don't want you to provide
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don't know -- I hope you -- last time I needed
footnotes was when I was defending my dissertation
and my generals, but I -- this is a collection of
information over a long period of time.
Q.
What about facts or data relating to
ECOT that you considered -A.
The only -Q.
-- in forming the opinions you plan to
express relative to the first topic in Exhibit 17?
A.
The only ECOT information I have is
what you get off the publicly-available website on
the Department of Ed.
Q.
Okay. So did you consult certain
documents relevant to ECOT -- again, just limiting
to the first topic in paragraph 17, did you
consult documents relating to ECOT on the Ohio
Department of Education website and did you rely
upon these documents or consider these documents
in forming the opinions you have relevant to the
first topic?
A.
On the first question, no.
Q.
Okay.
A.
The only exception to that would be is
not ECOT specific. It would be the eSchools
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privileged information or work product
information. So let me ask that again and make
sure we get a precise answer.
Has counsel for ECOT provided you with
any facts or data that you considered in forming
the opinions you plan to express in your
testimony?
A.
On that first item, no. No, I -- I
held all my opinions and facts, and everything
came with me the day they called me.
Q.
And beyond anything provided by
counsel, are there other facts or data that you
considered in forming the opinions you plan to
express in your testimony regarding the first
topic in paragraph 17?
A.
When you say, "facts," are you talking
about documents and -Q.
Yes.
A.
Well, I -- I don't know how to answer
that.
I mean, as far as the documents go, it
ranges from everything from the school financial
reports to the website at ODE to books from
college to actual documents, handbooks. I mean, I
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generally, how the eSchools are handled.
Q.
And what specifically are you thinking
of now, what document?
A.
Well, the -- the handbook, the -- some
of the financial handbooks that are on the web.
Q.
The FTE review handbook?
A.
I believe that's the title of it.
Q.
And what year FTE review handbook did
you consider in forming your opinions relevant to
this topic?
A.
I can't recall the -- whatever the
current ones are out there.
Q.
But it was one or more of the FTE
review handbooks available on ODE's website?
A.
Yes.
Q.
Do you believe it was the most -- do
you believe it was the 2015 FTE review handbook or
you believe it was more than one? Strike that.
That's a horrible question.
Do you believe that it was the most
recent handbook?
A.
I honestly don't know. It's whatever
the -- whatever was available on the ODE website.
I assume they have the most current one there.
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Q.
And did -- do you recall whether you
only looked at one handbook or did you look at
more than one?
A.
As I recall, I looked at only one of
the current ones that are on ODE.
Q.
And you just do not recall which one?
A.
That's correct.
Q.
Okay. Regarding your opinions on the
first topic listed in paragraph 17, "the theory
and calculations of FTEs for brick and mortar
schools," has counsel for ECOT provided you with
any assumptions that you relied on in forming the
opinions that you plan to express in your
testimony?
MR. HOGAN: As long as you relied on
them, that's fine.
A.
Actually there were no assumptions
provided by -- that I can recall.
Q.
Let me go through all of these quickly
on the assumptions. Is it your recollection, so
as we sit here right now, that as to all of the
topics that you plan on testifying about counsel
did not provide you with any assumptions that you
relied on in forming your opinions?
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Q.
Do you still have copies of those
filings that counsel provided to you?
A.
Yes.
Q.
And can you provide those filings that
counsel provided to you?
MR. HOGAN: Are you making a document
request?
MR. CLARK: Yes, please.
MR. HOGAN: I mean, we'll accept a
document request.
MR. CLARK: Okay. But you wouldn't
just provide those documents pursuant to this
request right now in this expedited discovery?
MR. HOGAN: I think I would need to see
a document request.
MR. CLARK: Okay.
A.
If it helps any, every single one of
those documents had your firm's name at the bottom
as recipients.
Q.
Thank you. They were all filings,
actual filings in the litigation?
A.
That's correct.
Q.
And, for the record, with due respect,
I don't mean any -- any disrespect, but that
Page 155
1 A.
The -- the only thing that I suppose
2 would classify as assumptions is I did receive
3 the -- the court documents. So I could see some
4 chain of argument about the Court case. And to
5 the extent that counsel provided that defense,
6 I -- I looked at that information and compared it
7 to what my views were.
8
I can tell you in every single one of
9 these cases, I -- I had preconceived opinions and
10 notions about what schools did, how they function,
11 how they interact with the Department of Education
12 that is separate from the arguments. Sometimes
13 those arguments align and sometimes -- well, most
14 of the time the arguments align for counsel, not
15 for the ODE, but maybe that's the reason they
16 liked me as an expert opinion. But the -- the
17 fact is is that all of these are opinions that I
18 have formulated either in practice or over years
19 of work.
20 Q.
Okay. But in forming your opinions
21 that you plan on testifying to at the hearing in
22 this litigation, one of the things you relied upon
23 was the filings that counsel provided?
24 A.
Yes.
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actually does not help, because I want to know if
there were particular filings on which you relied.
I just want to put that in the record. I don't
mean to argue with you about that, but thank you.
THE WITNESS: Now you're in trouble.
My wife's calling.
Q.
Okay. So the second -- the second
topic of paragraph 17, ECOT describes it as "ODE's
lack of measurement of student engagement in any
form." There were no assumptions that you replied
on in forming your opinion about that topic?
A.
No.
Q.
Okay. Same question as to the third
topic in paragraph 17, what ECOT describes as "the
parallels in calculating FTEs between online
schools and brick and mortar schools." You did
not rely on any assumptions that counsel provided
to you in forming your opinion regarding that
topic?
A.
No.
Q.
The next topic, "ODE's failure to
provide customary and expected notice of changes
and standards," did -- did you rely on any
assumptions provided to you by ECOT's counsel?
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A.
No.
Q.
And for the next topic, "ODE's
irrational and discriminatory application of new
standards to ECOT," did you rely on any
assumptions that counsel provided to you in
forming your opinions in this litigation?
A.
The only caveat on those two, this one
and the previous one, is what was in those filings
would have given the basis for what happened in
ECOT, and then I applied my own opinion about what
was customary and expected from past practice.
So the answer is no, they did not
provide me with any assumptions. We did have
those -- those court documents.
Q.
Is it fair to say, sir, that to the
extent you -- strike that.
Is it fair to say, sir, that your
understanding of the facts of this
particular -- of the facts of this litigation come
from assuming that filings that you have reviewed
in this litigation are correct?
THE REPORTER: Are correct?
MR. CLARK: Correct.
A.
Interesting question.
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1 customary and expected notice of changes and
2 standards" and "ODE's irrational and
3 discriminatory application of new standards to
4 ECOT."
5 Q.
Okay. Go ahead.
6 A.
Those two predicate that there were
7 certain methods of communication that I read in
8 the proceedings that brought me to this
9 conclusion.
10
The rest of these are all based on, for
11 example, "the unreasonable" and "arbitrary and
12 punitive application of standards mid...year...but
13 not to bricks and mortar charter schools."
14
That next item is -- is all based on
15 the Court claim itself. The Department says we
16 want to collect this student engagement data, and
17 the fact that they want to collect it, not how
18 they collect it, not when they wanted to collect
19 it, not anything else, that drove all the rest of
20 the opinions that compare one set of schools to
21 the other.
22 Q.
Okay. Have -- let me try this
23 generally. I'm not sure it's going to work, but
24 has counsel for ECOT provided you with any facts
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1
MR. HOGAN: Object to form, but go
2 ahead.
3 A.
To -- to the extent that I read
4 information that seemed to be fairly
5 straightforward and practical, the answer would be
6 yes.
7
To the extent that I read things that
8 were opinions about how it should have been or
9 what occurred from a more abstract basis, no.
10
So I did make some assumptions around
11 when documents -- whether documents were sent to
12 JCARR or not.
13
I did make some assumptions that it was
14 accurate to say that documents were produced at a
15 certain point in time or communicated in a certain
16 way. So to the extent that things were, you know,
17 the very practical, factual did you receive a
18 manual and what date was it and was it promulgated
19 rule or not would have been included in my
20 assumptions around these two items.
21
The -- the fact that the -22 Q.
By the -- excuse me, sir. By "these
23 two items," can you identify what you're -24 A.
Yeah; "ODE's failure to provide
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or data that you considered in forming any of the
opinions you plan to express in your testimony at
the litigation, at the hearing?
A.
No.
Q.
So there are no documents -- strike
that.
In forming your opinions for
the -- that you plan to testify on in this
litigation, have you reviewed any documents with a
Bates number such as one that -- such as the one
that appears on the bottom of ODE Exhibit 1040?
A.
This?
Q.
Yes.
A.
No. I've -- well, the only thing I
have to admit I -- those filing papers. The only
thing I've received are those filings.
Q.
Okay. So you have not reviewed any
other documents?
A.
To my memory, there's been no other
documents.
Q.
No other documents relevant to this
litigation or produced in this litigation form the
basis of the facts or data that you considered in
forming the opinions you plan to express in
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this -- in this litigation?
A.
That is correct.
Q.
There are other facts and data that
form the basis of your opinions, but those would
be facts and data that you have collected through
your experience throughout the years.
A.
That is correct, or that I researched
as a part of my efforts to figure out the facts of
this particular case.
Q.
And let's focus on exactly that.
That's what we were going to talk about next.
You mentioned that you looked up an FTE
review handbook on ODE's website. What else did
you look up on your own in forming the opinions
you plan to testify to in this litigation?
A.
I -- the major other data collection
was the actual performance of ECOT compared to
other schools. It was pulled from the data
systems at ODE around report cards and report data
and enrollments.
And then I did my own calculations to
modify that data to determine my own
interpretation of -- like your sheet has certain
interpretation of data. I used different
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Q.
Yes, sir.
A.
-- you probably drew them from the
exact same data fields that I did, performance
index, "Indicators Met." I didn't -- I didn't go
into the sub groupings.
And then I applied poverty rates, which
you did not have on this sheet. And then I do
calculations based on those poverty rates and
those performance results.
Q.
And where -- where does this basic data
come from?
A.
Comes from the Ohio Department of
Education. It's -- it's all right on there. If
you go to Ohio Department of Education, choose
topic, school report card, and look up ECOT and
you'll find it.
And then there's data extracts that
allow -- that allow me to pull down every single
school in every single district, and that's how
I -- I see how ECOT fits with the rest of the
schools in the State of Ohio.
Q.
And how many districts did you look up?
A.
Actually the data table is in its
entirety, so every single school district, every
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calculations to determine high performance and low
performance.
Q.
And did you save those documents?
A.
I'm sure I did somewhere.
Q.
Those are documents you created, is
that correct, for the purpose of your testimony?
A.
That is correct.
MR. CLARK: I'd like to enter a request
for those documents as well, Chris.
MR. HOGAN: And I would say serve a
discovery request.
MR. CLARK: Okay.
MR. HOGAN: And I'd like to have the
documents that John Wilhelm said have been
withheld so, you know -MR. CLARK: Yeah.
MR. HOGAN: -- I'm just saying.
MR. CLARK: I don't mean to get into an
argument about it. I just wanted to request them.
Q.
So help me understand exactly what you
looked up regarding your opinions about the
relative performance of ECOT.
A.
If you look at the data that you just
gave me --
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single school. In one case I ran it as a school
in a school district, and there is difference
between the data sets. One's got several thousand
schools and one has 614 or 15, depending on
whether you count the island districts.
Well, actually it's more than that.
It's more like about 900 because the community
schools are included in that as well.
Q.
Is it fair to refer to this data as
report card data?
A.
Yes.
Q.
Okay. Other than the FTE review manual
and the report card data, what else have you
consulted in forming the opinions that you plan to
testify to in this litigation?
A.
I also did an actual review of the
current FTE handbook with a field staff person
with the Ohio Department of Education. It was
actually related to my own school.
As I looked into this, I realized I
needed to make sure that we absolutely were
interpreting the handbook correctly. So I went to
my own regional field service person and said
apply this. What would you do if I came in -- you
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came and investigated my school.
Q.
Okay. So is that an area coordinator
you spoke with?
A.
Area coordinator.
Q.
And who was that person?
A.
Larry Grooms is his name, I believe.
So Larry walked through the procedures of how the
handbook would be applied to my charter school.
Q.
And when you said the current version
of the FTE handbook, do you know which year it
was?
A.
The one that's applied as of this year.
Q.
The 2015 FTE?
A.
I -- I just can't remember
what -- whatever the latest one, the one that
would be applied this year.
Q.
Are you aware, sir, that there was a
draft 2016 FTE review handbook that ultimately was
not used for reviews this year?
A.
That I wouldn't be -- unless they had
it on the website as a -- I wouldn't have been
aware of that.
Q.
Okay. And what -- when did this
conversation -- was it a single conversation with
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own school, and based on that I can extrapolate
that if in fact my school operates the exact same
way that I expect, that I interpret it that it
should be inspected, I'm assuming that I'm right
in my interpretation of the handbook for all
schools that are under that review.
Q.
Other than that conversation
potentially, the FTE review manual that you looked
up online, and the report card data, are there any
other facts or information that you relied upon or
considered in forming the opinions you expect to
testify to in this litigation?
A.
Other than the filings.
Q.
And the filings.
A.
No. But I say that only in the sense
that everything from, you know, Ph.D. days all the
way through. I don't think we're talking about
that data.
Q.
In other words, the general, historical
experience and education you've received and all
the books you've read and papers you've looked at
throughout the years.
A.
Meetings I've been in and, you know, at
the Department of Ed back in the Nineties and the
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Larry Grooms, sir?
A.
Yes.
Q.
When did that occur?
A.
Sometime in the last month.
Q.
Last month. And the handbook, the
handbook that you understood to be current, was it
provide by you or was it provided by Mr. Grooms?
A.
Mr. Grooms.
Q.
Okay. And what -- tell me everything
you can remember about that conversation.
Well, first, how long did it last?
A.
Probably 45 minutes to an hour.
Q.
Okay.
A.
And what I remember is that my
interpretation of the handbook was consistent with
his application.
Q.
Okay. And that conversation is part of
the basis on which you are basing your opinions in
this litigation?
A.
I -- I would say no. It's -- my
opinions were based on what the actual handbook
said and what my experiences were with my school.
I'm only sharing that I double-checked
that, not -- not for this Court case, but for my
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2000s and the Credit Flex and all of those things
go into this expert opinion about what -- what are
the theory and the practice.
Q.
But in terms of facts relevant to the
allegations in this litigation -A.
That would be the extent of it.
Q.
Let me try that again. I'm sorry; just
for the record.
In terms of the fact -- facts relevant
to the allegations in this litigation, the only
documents you have consulted on which you base
your opinions that you expect to testify to in
this litigation are an FTE review manual that you
obtained from the ODE website, report card data,
potentially a communication regarding
Mr. Grooms -- with Mr. Grooms regarding the FTE
review of your own school, and filings provided by
ECOT's counsel to you; is that correct?
A.
Correct.
Q.
All right.
THE VIDEOGRAPHER: Counsel, can I
request a short break to change this disk?
MR. CLARK: Go right ahead.
THE VIDEOGRAPHER: We're off the
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record. The time is 4:54.
(A recess was taken.)
THE VIDEOGRAPHER: This marks the
beginning of disk No. 3. We are back on the
record. The time is 5:01.
Q.
Sir, I'm handing you what's been marked
ODE Exhibit 1037. Have you seen this document
before?
A.
Yes.
Q.
Is this the document -- I'll represent
to you that this is the January 5th, 2015, FTE
review handbook, the handbook we've been
discussing.
Is this the document you reviewed after
obtaining it from ODE's website?
A.
I believe so.
Q.
And is this the document that you
reviewed with Mr. Grooms when you discussed the
FTE review handbook with him?
A.
Actually he -- he had -- he had copies
of operational documents that came from this
handbook. So no, we didn't go page by page in
this.
Q.
Okay. So you mentioned that in --
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1 simply reinforced that I was correct in my
2 opinions about how things operated in a regular
3 school.
4 Q.
All right. And can you be as precise
5 as possible in describing those documents to me?
6 A.
Yes. The -- the corroboration that in
7 fact a student that did not show up in a regular
8 bricks-and-mortar school for 104 hours and 59
9 minutes, but did show up in the last minute, would
10 in fact be considered enrolled in that school. In
11 fact, the school could not unenroll the kid at
12 that point. And they'd go for another 104 hours
13 and 59 minutes, and if they showed up for that one
14 minute they in fact would still be enrolled in the
15 school and the school could not disenroll them.
16 And you go through that.
17
So, in essence, a student could attend
18 a regular bricks-and-mortar school for ten minutes
19 a year and the school could do nothing but count
20 them in their enrollment, count them in their
21 performance, and they would receive funding for
22 them. That was corroborated. The 105-hour rule
23 was corroborated.
24
The calculation of how you determine
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A.
I think he had the SF -- SF -- whatever
they call it now, SPRA, and then he had a guide
sheet for community schools on how we collect on
every 16th of every day, every month and how the
calculations are done, and then how the FTEs are
verified when they come to our school.
Q.
Okay. And those documents that you
just identified beyond the FTE review handbook,
did you rely on those or consider those in forming
your opinions that you plan to testify to in this
litigation?
A.
I did -- I did not rely on them. They
just gave me confidence that my interpretations
were correct.
Q.
So you considered them? There's a
difference, actually, between "considering" and
"relying." So let me just ask whether you
considered them in forming the opinions that you
plan to testify to in this litigation?
A.
I would -- I would say that as I
understand the word "consider," that would be a
more correct term than "rely."
Q.
Okay.
A.
I had already formed my opinions. They
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FTE as it's based on the length and -- length of
the day and length of the year. It can be
converted to hours now rather than days, but the
actual calculation is the same, underlying
calculation's exactly the same. It has nothing to
do with the student. It has everything to do with
when the school is open or what is being offered;
so all of the methodology that's currently used to
collect data.
The other one was attendance. At one
point in time, attendance actually mattered if it
was unexcused. Today it doesn't matter.
Attendance does not matter whether you're counted
as enrolled or not. It's only whether the student
is actually enrolled and proven that he's not
somewhere else in an another school.
So all of those things got corroborated
that, in fact, they're still exactly the same
today under this handbook for my school and for
other schools; that student engagement is not
even -- not even attendance is checked. In fact,
there's provisions in law that actually spell out
that attendance can't be checked as a way of
determining whether a school is receiving funding.
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So that's what I corroborated.
Q.
Okay. And I'm sorry if my -- my
question was unclear. I'm interested in simply
knowing to the best precision you can provide what
the documents were that you reviewed.
A.
Yes. Those -- those documents were my
school's SPRA, I believe is -- I used to call it
an SF-12 or SF-3. It had all the calculations.
There was a sheet of paper that had a
series of arrows that showed how the calculations
for FTEs were made, when data was collected, and
those -- that were enrollment data, not attendance
data.
Then the funding provisions that came
after that; in other words, September, if I have
more students enrolled, not attending but
enrolled, I get more money in October than I do in
September, and further on down the line. So for
the nine times in regular districts I reconfirmed
that it's twice a year that they do those
calculations -Q.
Did you -A.
-- so that's -- that's what the
documents spelled out.
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Q.
So did this document -A.
I believe I brought this with me.
Q.
You brought it with you. And did you
discuss this document at all? Regardless of
whether it was in detailed review, did you discuss
this document at all with Mr. Grooms?
A.
That I can't recall.
Q.
Okay. And what do -- if anything, do
you recall about what Mr. Grooms told you during
this conversation?
A.
I just described it.
Q.
In other words, the substance of the
communication that you just described in the last
five minutes or so is all that you can remember
regarding what Mr. Grooms told you?
A.
Pretty much; obviously in condensed
form.
Q.
Fair. Sir, I'm handing you what's been
marked ODE Exhibit 1345, and if you look at the
bottom of this document, it's got a website
okcareertech.org/digital-learning-forum. And I'll
represent that I printed this bio of you out from
that website.
Do you recall attending a digital
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Q.
Okay. And -- and have you
described -- I don't need to know all of the
contents of those documents. I just want to make
sure I know exactly which documents they were.
Have you described all of the documents
that you -A.
To my memory, yes.
Q.
Okay. And before the videographer
changed tapes, I think you mentioned that you also
reviewed an FTE review handbook with Mr. Grooms.
Is that correct, or is it in fact this other
documentation that you reviewed?
A.
I did not go over in detail this
document right here.
Q.
But did you go over it -A.
So if that's what you -Q.
-- at all?
A.
No. No. We -- we talked about the
operating -- when I said we reviewed the
procedures, I didn't mean that we went page by
page in this manual. I actually reviewed what he
does when he comes in and reviews a school -Q.
Okay.
A.
-- which is driven by this.
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learning forum, maybe during your time in
Oklahoma?
A.
I -- it's very likely.
Q.
Okay.
A.
Digital learning forum? I don't know
what that -Q.
It was in June, but I could not figure
out what year.
A.
I attended -- we had lots of
conferences and meetings and I've presented at -Q.
Fair enough.
A.
Yeah.
Q.
Sir, is the information provided in
this bio accurate?
A.
As far as I can tell it is.
Q.
Is there anything in this bio -- you
should take your time to read it. Is there
anything in this biography, in Exhibit 1345, that
you find to be inaccurate about yourself?
A.
No. That looks correct.
Q.
Okay. Sir, I'm handing you Exhibit
1347. This is a Columbus Dispatch article from
May 11th, 2011.
During that time, you were director of
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the Governor's Office of 21st Century Education,
correct?
A.
Uh-huh.
Q.
And you said and this article quotes
you or cites you as saying that the State Board of
Education -- strike that.
This article states that you "told the
State Board of Education that the administration,"
that is Governor Kasich's office, correct?
"Supports expanding school choice, but not at the
expense of strong oversight and accountability."
Did I read that correctly, first of
all?
A.
Where -- where are you reading at?
Q.
I'm sorry. It's the second paragraph
of the article.
A.
Yes. That's correct.
Q.
And is that paragraph correct? Do you
have any dispute with that paragraph in this -- in
this article?
A.
Absolutely none.
Q.
Okay. In the next paragraph, you're
quoted as saying that in your "previous job as
executive director of Cornerstone Charter Schools
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poor-performing schools"?
A.
Ohio has historically been known to
have poor-performing sponsors and poor-performing
charter schools that were left open way too long,
and so that's basically what we meant. That was
part of our legislative agenda in Kasich's
administration in that first year, and there's
been lots of progress. There's some areas that
haven't done as well as others.
Q.
Okay. And turn to the second
paragraph -A.
By the way, I want to clarify. When we
say, "poor-performing school," I kind of focus a
little bit on charter schools, but there's an
awful lot of poor-performing regular schools as
well. So both of those are equally unsettling.
Q.
Okay. In -- on the second paragraph of
the second page, it states, "Sommers told state
board members yesterday that school choice creates
competition that will improve Ohio's education
system. But both charter schools and traditional
public schools alike must be accountable for
student performance and public" funding, "and
poorly performing schools must shut down."
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in Detroit," you "said we," meaning you, "did not
want to come to Ohio because we didn't want to be
in the same state with poor-performing schools."
MR. HOGAN: I object to the "we"
meaning you. But go ahead.
MR. CLARK: Okay. Well, I'm trying to
go fast, Chris.
MR. HOGAN: I understand. But, I mean,
what does "we" mean?
MR. CLARK: Okay.
Q.
Okay. Let me read you paragraph 3 of
the -- of the article. It says, "In his previous
job as executive director of Cornerstone Charter
Schools in Detroit, Sommers said, 'we did not want
to come to Ohio because we didn't want to be in
the same state with poor-performing schools.'"
Did I read that paragraph correctly?
A.
That's correct.
Q.
Okay. And when you said "we," did you
mean you?
A.
What "we" meant was Cornerstone Charter
Schools.
Q.
Fair enough. What did you mean by,
"we" did not "want to be in the same state with
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Did I read that correctly?
A.
That's correct.
Q.
Do you dispute anything in that
paragraph regarding its accuracy -- strike that.
Do you agree with that paragraph?
A.
Yes.
Q.
In the next paragraph, "He also cited
the need for 'more transparency about funding for
charter schools.'"
Do you agree that as of May 11th, 2011,
there was a need for more transparency about
funding for charter schools?
A.
Yes.
Q.
The next paragraph states, "Sommers did
not specify the administration's concerns about
changes made by the House but said they should be
part of a 'more holistic review' after the budget
is approved."
Do you agree with that statement as of
the time this article was written?
A.
Yes.
Q.
And, lastly, the last paragraph says,
"The administration's overall education focus is
on 'performance and transparency and
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Page 182
1 cost-effectiveness,' Sommers told the board."
2
Do you agree with that statement?
3 A.
Yes.
4
MR. CLARK: It is now 15:18. I've been
5 told that there's a hard stop at 5:15.
6
MR. HOGAN: I am going to terminate,
7 yes, the deposition. It was noticed at 1:00 by
8 ODE. Mr. Sommers drove two hours or more to get
9 here. He's made clear he's got to drive home
10 tonight. We've allowed for the few short breaks
11 we've taken, and I believe ODE has had more than
12 an appropriate opportunity to depose Mr. Sommers
13 and, therefore, we are terminating at this point.
14
MR. CLARK: And you are refusing to
15 hold open the deposition; is that correct?
16
MR. HOGAN: We -- that is true.
17
MR. CLARK: What is the basis of
18 Mr. -- sorry -- Dr. Sommers' need to return to
19 Cincinnati?
20
MR. HOGAN: It is that he lives in
21 Cincinnati and he's going to be with his family.
22 And if there are any other reasons, it doesn't
23 need to be shared with you. And, frankly, your
24 deposition has been reasonable, even though you
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Mr. Sommers.
MR. CLARK: Okay. So in no
circumstances would you agree to hold open the
deposition at this point; is that fair?
MR. HOGAN: No, because, as I've stated
off the record and I'll state on the record, ODE
has known about this for a month and decided to
only start trying to schedule depositions after it
lost its motion to dismiss. So I believe it's had
its reasonable opportunity.
MR. CLARK: And I disagree with that
characterization and the reasoning behind your
refusal to hold open the deposition.
Our position would be that there is no
requirement to finish a deposition scheduled at
1:00 by 5:15 anywhere in the law, and we reserve
the right to continue this deposition as needed.
I will also say for the record that I
appreciated Dr. Sommers' answers; also found them
to be fairly long, which prevented me from asking
all the questions I needed to ask. And I have
over the course of the last however, you know,
over the course of the entire deposition asked
fewer questions than I otherwise would have in
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noticed it at 1:00. So you're not entitled to
keep him here past 5:20 on a Friday when you
scheduled the deposition at 1:00 in the afternoon.
MR. CLARK: Do you have any legal
authority for that?
MR. HOGAN: I think it's the general
spirit of the discovery rules.
MR. CLARK: So other than being home
with his family, which is certainly something we
all want to do, you are not willing to provide any
other information regarding why this deposition
can't continue?
MR. HOGAN: Other than I believe that
continuing it would be an abuse of the discovery
process by ODE.
MR. CLARK: Okay. You're refusing to
hold open the deposition even if we were able to
continue the deposition by video conference or
telephone; is that right? Or are you willing to
hold open the deposition so that we could, you
know, actually get it finished by telephone or
video conference?
MR. HOGAN: No. I believe you've had a
fair and reasonable opportunity to depose
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order to attempt to get this deposition finished
by the hard stop that you imposed. I have not
been able to do that, and there are many more
questions that I want to ask regarding each of the
several opinions that Dr. Sommers has indicated he
expects to testify to at the litigation. So -MR. HOGAN: I appreciate your position,
and my view is you should have tried to schedule
him for 9:00, earlier. I think that's where we
stand.
MR. CLARK: I think we've made our
record, right, Chris?
MR. HOGAN: I agree.
THE VIDEOGRAPHER: We are off the
record. The time is 5:22.
(Signature not waived.)
----Thereupon, the foregoing proceedings
concluded at 5:22 p.m.
-----
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Page 186
1 State of Ohio
:
C E R T I F I C A T E
County of Franklin: SS
2
I, Reva Chafin Mundy, a Notary Public in and
3 for the State of Ohio, do hereby certify the
within-named Robert D. Sommers, Ph.D. was by me
4 first duly sworn to testify to the whole truth in
the cause aforesaid; testimony then given was by
5 me reduced to stenotypy in the presence of said
witness, afterwards transcribed by me; the
6 foregoing is a true record of the testimony so
given; and this deposition was taken at the time
7 and place as specified on the title page.
8
I do further certify I am not a relative,
employee or attorney of any of the parties hereto,
9 and further I am not a relative or employee of any
attorney or counsel employed by the parties
10 hereto, or financially interested in the action.
11
IN WITNESS WHEREOF, I have hereunto set my
hand and affixed my seal of office at Columbus,
12 Ohio, on September 9, 2016.
13
14
15
16
17
18
19
20 ______________________________________________
Reva Chafin Mundy, Notary Public - State of Ohio
21 My commission expires June 23, 2017.
22
23
24
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Witness Errata and Signature Sheet
Correction or Change Reason Code
1-Misspelling 2-Word Omitted 3-Wrong Word
4-Clarification 5-Other (Please explain)
Page/Line
Correction or Change
Reason Code
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
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_______________________________
________
_______
_______________________________
________
_______
_______________________________
________
I, Robert D. Sommers, Ph.D., have read the entire
transcript of my deposition taken in this matter,
or the same has been read to me. I request that
the changes noted on my errata sheet(s) be entered
into the record for the reasons indicated.
Date__________Signature___________________________
The witness has failed to sign the deposition
within the time allowed.
Date__________Signature___________________________
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
accuse (1)
9:3
accused (1)
8:19
$14 (1)
achieve (1)
58:3
110:21
$14,500 (1)
achievement
(6)
41:23
131:21;132:3,11,
$200 (3)
19,22;146:3
14:7;19:20;20:20
achieving
(1)
$2500 (1)
74:17
20:19
acquire (3)
$5,300 (1)
38:5,10;63:22
41:12
acquisition
(1)
$9,200 (1)
143:13
41:18
acronym (2)
29:4;32:14
A
across (3)
46:23;50:21;52:24
ability (2)
act (3)
103:17;105:3
44:3;77:6;132:21
able (11)
actively (1)
34:7;55:3;69:2;
101:18
73:5;74:10;104:1,2;
activities
(3)
105:9;144:14;
30:4;102:6;104:4
183:17;185:3
activity (1)
above (2)
28:14
29:15;45:20
actual
(25)
absolute (1)
28:13;30:19;32:6;
58:1
37:6;50:6;78:14,23;
absolutely (7)
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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(5) consideration - delay
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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(6) deliver - drafting
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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168:20;178:1,6,8;
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140:9,17;141:17;
144:2
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97:22
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66:14
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142:8;143:23;
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108:1
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142:3
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164:24
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172:17
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Realtime - Videoconferencing - Trial Presentation - Video (7) dramatically - essentially
Spectrum Reporting LLC
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
72:21
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137:10
evaluation (1)
45:18
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102:8
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Except (1)
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Executive (4)
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178:10
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Expert (65)
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168:1
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184:20
Realtime - Videoconferencing - Trial Presentation - Video
Spectrum Reporting LLC
(8) established - figured
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
74:14
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formulas (4)
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forth (1)
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93:8,16,23;94:8,16;
95:5,7,14;96:13,22,
22,23;100:6;103:18;
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119:16,17,23,24;
120:18,19;121:1,2;
122:3,4;125:13;
153:6,8,13,17;
162:12;165:12,17;
166:10,13,18;168:8;
169:13,16;170:11,
19;171:8;173:1;
175:10
FTEs (16)
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11,15,17,20;100:2;
102:15;121:22;
127:10;150:9;
154:10;157:15;
171:5;174:11
FTE's (1)
121:9
full (8)
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92:21;100:12;108:2;
110:22;121:5
full-time (3)
36:24;50:14;57:8
function (1)
155:10
functions (3)
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fund (1)
106:20
funded (3)
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funding (64)
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15:9;21:9,10;30:23;
31:1;32:1;39:14;
45:22;48:21;49:10,
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66:6;75:9,15;80:8,9,
9,17;81:10,13;86:12,
22;91:6,14,19;92:15,
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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Realtime - Videoconferencing - Trial Presentation - Video (10) graduate - inconsistent
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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(11) incorrect - law
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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163:1
lower (4)
21:1,3;60:4;
148:20
lowest (1)
52:20
lunch (1)
55:2
M
Madison (2)
9:14,17
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mail (1)
116:20
maintain (1)
104:6
maintenance (1)
52:2
major (6)
26:23;30:22;
48:20;63:7;147:20;
162:16
majority (2)
38:11;86:20
makes (5)
34:8;40:6;88:12;
111:2;140:20
making (2)
35:22;156:6
manage (1)
71:20
managed (3)
68:19;74:20;
102:10
management (4)
65:15;66:21;67:5;
75:24
manages (1)
51:22
managing (3)
65:2,17;71:19
mandate (4)
96:15;97:1,2;
125:15
manifestation (1)
24:9
manifests (1)
90:5
manner (1)
118:14
manual (14)
89:21;90:3,4,9,9,
11;91:3;93:9;95:5;
159:18;165:12;
168:8;169:13;
175:21
manuals (1)
94:16
manual's (3)
96:13,23;125:13
many (14)
7:4;10:7;33:18,20;
36:12,17;57:8;
93:18;100:15;
111:21;116:22;
118:24;164:22;
185:3
mapping (1)
145:16
March (1)
64:10
Margaretta (1)
10:21
margin (1)
67:8
(12) laws - margin
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
Marion (1)
18:4
marked (7)
26:1,7;67:7;95:19;
147:13;170:6;
176:19
marks (2)
79:8;170:3
marry (2)
49:17,18
Master (1)
27:5
mastery (3)
34:17;35:8;132:12
mastery-based (1)
31:10
matched (1)
94:21
material (1)
54:11
math (1)
47:19
mathematics (1)
82:17
matter (5)
5:20;16:16;71:9;
173:12,13
mattered (1)
173:11
matters (2)
130:24;138:21
maturity (1)
71:18
may (21)
3:9,11,12;6:22;
7:9;34:2;76:10;
107:6;110:3;114:23;
119:2;121:14;
126:16;132:14;
136:13;139:9,16;
143:8;144:12;
177:23;181:10
maybe (7)
41:2;47:15;
115:13;125:5;
135:19;155:15;
177:1
Mayor (2)
58:20,20
mean (33)
19:12;34:24;36:9;
62:12;72:20;79:17,
22;80:21;84:15;
88:8;89:24;101:15;
107:16;108:9,17;
115:4;123:13,17;
124:13;135:13;
136:9;137:3;151:21,
24;156:9,24;157:4;
163:18;175:20;
179:8,9,20,23
meaning (6)
25:8,15,17;
Min-U-Script®
142:24;179:1,5
means (12)
15:12;23:20,21;
24:4,14,24;25:4;
52:2;99:13;107:16;
127:9;129:10
meant (3)
25:22;179:21;
180:5
measure (18)
32:6;34:14;35:8;
74:21;105:6,10;
131:16;132:16,18,
21;133:1,2,16;
134:16,18;135:5,7,
14
measurement (3)
101:3;134:22;
157:9
mechanisms (1)
55:2
meet (3)
17:24;18:3;127:16
meeting (3)
18:7,9,13
meetings (4)
17:3;18:21;
168:23;177:10
member (10)
8:9;29:24;31:3,4;
44:24;65:3,17;
83:22;84:3,7
members (1)
180:19
membership (2)
50:18,19
memberships (1)
99:17
memorable (1)
14:12
memory (4)
14:6;119:12;
161:19;175:7
mentioned (15)
10:13;16:7;21:15;
69:16;72:16;93:15;
97:7,7;116:9;
122:14;142:22;
146:4;162:12;
170:24;175:9
met (4)
17:24;92:12;
147:23;164:4
methodology (20)
120:8;139:1,4,7,
16;140:5,7,13,16,20,
22;141:3,11;142:4,
10,12,18;143:4;
144:24;173:8
methods (1)
160:7
Miami (1)
26:22
Michigan (4)
62:10,10;72:14;
106:23
mid (3)
118:5;122:20,22
middle (4)
68:23;145:19,23;
146:21
mid-school (1)
118:1
midyearbut (1)
160:12
might (8)
20:3;26:11;33:4;
83:20;98:7;135:10;
138:17;142:13
millage (1)
49:20
million (1)
58:3
mind (9)
22:15;34:1;37:14;
45:9;73:13;82:4;
84:19,21;135:10
minimum (1)
34:3
minus (1)
149:7
minute (14)
91:7,11,13,15,15,
19;92:7,22;101:23;
129:12;141:4,6;
172:9,14
minutes (6)
36:13;167:12;
172:9,13,18;176:14
mission (1)
59:18
misstates (1)
24:18
mix (1)
145:19
model (12)
58:15;68:10,12,
15,17;69:12;70:11,
15,19;71:23,24;
86:14
modern (1)
34:5
Modern-day (1)
105:24
modest (2)
33:7;88:13
modifies (1)
39:12
modify (1)
162:22
moment (5)
20:6;36:7;62:4;
96:4,7
mom's (1)
76:17
money (8)
41:13,23;43:8;
49:22,22;53:6;
106:15;174:17
month (4)
167:4,5;171:4;
184:7
more (50)
19:2;23:8;33:4,5;
34:6;39:12,12;40:3;
41:13;44:3;46:5;
49:15;60:5;62:14;
63:17,18,18;68:8;
71:2,3;73:18;88:13;
92:8;111:7;120:14,
16;126:11;131:13;
136:15;140:17,20;
141:24;142:24;
143:5;144:15;
153:13,18;154:3;
159:9;165:6,7;
171:22;174:16,17;
181:8,11,17;182:8,
11;185:3
mortar (13)
57:1;93:5;99:4;
102:16;103:8,16,21;
110:3;111:1;150:9;
154:10;157:16;
160:13
most (18)
29:4;32:7;33:12;
37:22;40:4;45:24;
55:7;61:9;76:23;
85:5;105:24;106:1,
3;110:23;153:16,20,
24;155:13
mostly (3)
33:21;37:8;73:4
motion (4)
8:21;22:12,21;
184:9
mouth (1)
72:20
move (5)
44:11;46:17;
54:12;73:5;107:10
moved (4)
30:6;47:5;100:21,
22
moving (2)
34:20;70:14
much (18)
14:4;20:14;30:17;
33:22;34:6;49:17;
73:18;74:12,17;
80:18;84:20;91:24;
111:21;127:23;
131:8;133:10;144:6;
176:16
music (1)
54:15
must (4)
93:9;95:14;
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180:22,24
mutual (1)
69:14
myself (7)
44:9;58:13;78:11;
86:19;90:21,23;
146:18
N
name (10)
5:19;32:17,21;
76:20,23;96:2,8;
98:18;156:18;166:6
named (1)
76:18
names (2)
52:5,7
narrow (1)
142:12
narrowed (1)
118:15
national (2)
52:22;146:8
Natural (2)
54:22;71:16
nature (4)
13:24;45:17;
93:14;104:7
near (2)
10:24;11:2
nearly (2)
43:16;139:10
need (21)
7:6,8;37:24;55:22;
56:9,11;58:21;
73:18;74:14;76:22;
82:7;112:6;140:1;
147:3,6;156:14;
175:2;181:8,11;
182:18,23
needed (6)
59:24;73:7;152:1;
165:21;184:17,21
needs (5)
61:5;120:10;
128:6;129:4,4
negating (1)
109:15
negative (3)
28:16,18;112:8
negotiated (1)
15:6
Neither (4)
28:16,18;130:20,
23
NEOLA (2)
28:22;29:1
new (14)
29:24;34:20;53:4;
66:1;81:3;136:13,
17;137:4,15,23;
147:4;149:23;158:3;
(13) Marion - new
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
160:3
newly-formed (1)
136:23
next (20)
46:13,15;54:12;
64:4;70:1;101:2;
102:13;113:8;
117:23;123:20;
125:11,24;132:15;
157:21;158:2;
160:14;162:11;
178:22;181:7,14
nice (1)
76:16
night (1)
51:23
nine (4)
49:21;60:24;
100:23;174:19
Nineties (3)
94:14,17;168:24
ninth (2)
29:23;34:1
nobody (1)
65:9
nod (1)
7:2
notions (2)
118:20;122:3,4;
35:21;155:10
123:14,17;136:5;
nuances (1)
147:14;151:23;
86:21
153:23;154:5;
number (11)
155:15;161:11;
25:23;31:20;
162:19;169:14;
36:21;43:24;47:23;
170:7;176:19;182:8,
50:21;68:4;100:5,5;
11;183:15;184:6
129:23;161:10
ODE's (15)
numbers (2)
101:3;113:10,10,
41:17;94:20
14;117:16;123:21;
124:1;153:14;157:8,
21;158:2;159:24;
O
160:2;162:13;
170:15
OAR (1)
OEA (1)
94:22
36:4
oath (1)
off (16)
6:11
20:7,9,11;42:5,6;
object (23)
43:6;79:3,5;96:15;
6:20;12:22;13:15,
97:10;103:20;147:2;
20;20:5;24:17;
152:11;169:24;
30:16;37:5;39:1,22;
184:6;185:14
40:14;53:13;55:21;
offer (15)
56:13;62:8;79:14;
16:15;35:15;
109:6;127:7;135:9;
91:11;96:10;102:17;
138:19;141:20;
114:13;117:16;
159:1;179:4
noncomputer-based (7) objecting (1)
123:24;124:6;
140:9,17;141:16;
135:21;137:11,12,
79:20
143:1,5;144:8,13
14,16;149:15
objection (6)
none (3)
offered (3)
13:4;20:2;23:22;
105:2,5;178:21
41:22;91:24;173:7
24:6;79:15,19
nonprofit (1)
offering (8)
observation (1)
66:24
97:4;113:13;
105:4
nor (4)
126:3;136:10;139:2;
observed (1)
28:16,18;85:12;
145:4;149:5,9
89:13
130:23
office (11)
obtained (2)
norm (1)
48:10;62:1,22;
27:18;169:14
127:2
63:2;64:22;76:1,5;
obtaining (1)
normal (3)
102:5;106:13;178:1,
170:15
5:18;21:12,13
9
obviously (3)
north (1)
Officer (3)
114:10;116:13;
20:19
57:20;65:4,11
176:16
notary (3)
official (2)
occur (8)
3:10,12,15
3:14;128:2
18:21;80:19,22;
notes (1)
81:10;109:12;114:6; officials (1)
3:12
141:13
138:9;167:3
notice (7)
offs (1)
occurred (9)
3:10;113:11,15,
49:20
56:3,6;115:19,22;
19;117:18;157:22;
116:6;117:10,10,12; often (1)
160:1
6:2
159:9
noticed (2)
Ogsdon (2)
occurring (1)
182:7;183:1
68:11;74:7
131:4
notified (1)
Ohio (69)
occurs (1)
97:9
5:5,20;8:4;9:14;
136:13
notify (1)
12:12,13;24:23;
October (3)
136:20
25:3,8,13,18;27:6,
100:12,13;174:17
notion (20)
19;29:5,7,14;35:13;
odds (2)
31:14;32:5;33:12,
43:15,17,24;44:4,7,
146:19;148:20
13,23;34:4;35:5,20; ODE (30)
14,16,23;46:14;
73:4;103:6,7,15;
48:13,14,21;50:13;
22:23;26:1,7;67:7;
105:9,17,19;106:7;
51:1,14;52:21;62:1,
90:7,17;95:19;
107:1,9,13;126:9
10,21;63:2;64:21;
113:18;114:7,8;
Min-U-Script®
Robert D. Sommers, Ph.D.
71:8;80:10;89:21;
103:6,16,24;104:13;
91:6,18;92:16,20;
107:23;108:12;
99:12,16,21;101:11,
109:3;110:24;111:3,
14;103:21;104:11,
24;112:2,3,17,21,23;
23;106:23;127:2;
113:4;121:13,15,16,
130:1,6;131:7,18;
19,21;129:3,7,8;
132:7;145:11;
141:23;142:2,23;
152:16;164:12,14,
143:5,9,16;144:7,16,
21;165:18;179:2,15;
16;157:15;168:9
180:2
only (37)
Ohio's (1)
12:6;58:14;61:7;
180:20
67:21;78:16;83:20;
okcareertechorg/digital-learning-forum (1)
92:17;99:22;101:24;
176:21
112:22;116:4;117:9;
Oklahoma (7)
118:10,20;129:4,5,
64:5,8,14,15;
15,17;134:16;136:3,
65:12,19;177:2
12;140:8;144:22;
old (1)
152:7,10,23;154:2,4;
116:20
155:1;158:7;161:14,
once (4)
15;167:23;168:15;
6:17;10:9;14:16;
169:10;173:14;
52:15
184:8
one (81)
open (9)
10:14;19:2;20:8;
92:3;100:4;173:7;
22:9;27:9,14;31:20;
180:4;182:15;
34:22;35:16;41:3;
183:17,20;184:3,13
42:5;46:15,18,19;
opened (1)
48:4,4,5;58:9,14,24;
58:11
59:2,6;62:4;64:12; operate (4)
68:13;71:4;73:22;
15:7;59:12;85:24;
86:11;91:7,11,13,14,
90:16
15,19;92:7,8,17,22; operated (6)
94:2;97:22,22;
28:20;46:3;62:11;
101:23,23;104:8;
68:14;86:9;172:2
105:16;106:24;
operates (3)
107:8,12;113:17,23;
21:9,12;168:2
114:23;121:20;
operating (2)
124:4;125:12;
86:3;175:19
126:21;130:20;
operation (4)
141:22;150:22;
66:1;72:13;92:13;
153:13,18,24;154:2,
99:18
3,4,6;155:8,22;
operational (1)
156:17;158:7,8;
170:21
160:20;161:10,10; opine (3)
165:1,4;166:12,15,
24:4,15;89:15
15;172:13;173:10, opinion (74)
10
13:7;24:11,12;
ones (8)
25:11;90:10;91:5,
11:17;23:7;
17;92:20;93:8;95:3;
110:24;111:3;147:3;
101:8,9;102:20;
149:23;153:12;
111:13;112:1,15;
154:5
113:13,18;114:3,5,
one's (2)
17;116:4,10;117:3,
124:5;165:3
9;118:3;119:6,9,15,
ongoing (1)
19,22;120:2,17;
25:16
122:21;123:1,12,24;
online (56)
124:7,9,14,16,19,23;
35:22;38:8;54:2,2,
125:2,5,20;126:3,7;
17,17;55:16,20;
127:17;130:15,24;
56:1;59:22;60:19;
135:3;136:6,18;
61:7,15,19;63:18;
137:14,15,19,23;
68:20;74:22;80:7;
139:2,6;140:19;
84:23;86:10;102:15;
141:10;142:17;
Realtime - Videoconferencing - Trial Presentation - Video (14) newly-formed - opinion
Spectrum Reporting LLC
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
143:20;144:5,11;
145:4,7;146:1;
155:16;157:11,18;
158:10;169:2
opinions (56)
11:16;16:16,24;
21:8;30:14;89:11;
99:9;117:15;118:7;
125:23;135:21;
136:10,23;137:4,10,
12;144:22;147:8;
148:10;149:6,10,14,
20,24;150:12;151:6,
9,13;152:8,19;
153:9;154:8,13,24;
155:9,17,20;158:6;
159:8;160:20;161:2,
7,24;162:4,14;
163:21;165:14;
167:18,21;168:11;
169:12;171:10,18,
24;172:2;185:5
opportunities (9)
46:2;103:2,3;
109:15,15;120:6;
140:10;141:17;
144:13
opportunity (12)
50:20;99:12,22;
103:11;136:4,4,22;
137:15;140:18;
182:12;183:24;
184:10
opposed (1)
127:18
option (1)
140:5
options (2)
106:6;135:19
ORC (1)
94:22
order (7)
22:12,21;72:23;
91:13;104:20,24;
185:1
organization (4)
31:23;46:3;53:16;
146:18
organizations (2)
69:13;93:12
organized (1)
76:2
original (1)
23:5
Originally (1)
100:10
others (2)
118:15;180:9
otherwise (6)
17:18;104:8;
106:12;131:4;
141:18;184:24
out (50)
Min-U-Script®
3:13;24:12;26:9;
30:1;31:18;33:17;
35:12;39:15;40:20;
46:3;47:17;55:7;
60:3;63:3;67:10;
69:2;74:6,14;83:12;
86:17,19;87:6,13;
90:23;91:13;92:7,9;
96:12;100:13;
101:11,23;108:1;
116:2;118:15;
121:22;123:8;124:4;
128:15;139:12;
143:10;144:19;
147:19;148:22;
149:21;153:12;
162:8;173:22;
174:24;176:22;
177:8
outcome (1)
15:3
outperform (1)
146:20
outside (1)
103:21
outstanding (1)
44:10
over (22)
23:20;25:23;30:7;
33:19;45:15;48:9;
49:3,6,19;58:6;60:9;
69:22;70:24;75:8;
100:20;104:9;152:4;
155:18;175:13,15;
184:22,23
overall (1)
181:23
oversaw (1)
63:4
oversee (1)
66:1
oversight (1)
178:11
overt (1)
116:20
own (12)
69:9;72:19;73:5;
135:12;158:10;
162:14,21,22;
165:19,23;168:1;
169:17
owned (1)
65:16
owner (1)
78:16
P
pace (1)
73:6
pack (1)
146:22
page (7)
67:8;96:2;170:22,
22;175:20,21;
180:18
paid (6)
14:1,4;18:22;19:6;
41:17;45:13
paired (1)
69:14
panoply (1)
109:13
paper (3)
8:24;22:16;174:9
papers (2)
161:15;168:21
paperwork (1)
50:9
para (2)
99:2;147:10
paragraph (38)
68:10;96:5,8;
98:17,18;101:2;
102:13;113:9;114:1;
117:23;123:21;
125:12,24;138:23;
145:2;147:11;149:4,
7,12;150:6;151:15;
152:15;154:9;157:8,
14;178:15,18,19,22;
179:11,17;180:11,
17;181:4,5,7,14,22
paragraphs (1)
149:3
parallel (2)
103:14;104:7
parallels (4)
102:14;103:5;
104:5;157:15
Paraphrased (1)
28:7
parents (1)
36:5
part (24)
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(15) opinions - pioneering
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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(16) place - provide
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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(17) provided - relative
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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review' (1)
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reviewed (13)
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(18) relevance - school
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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83:21,21;84:3,7;
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(19) school-facing - sorry
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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(20) sort - support
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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(22) transcribed - wildly
Robert D. Sommers, Ph.D.
Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
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Electronic Classroom of Tomorrow, et al. v
Ohio State Department of Education
Robert D. Sommers, Ph.D.
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