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Posted on: April 5, 2019

District Attorney Hoovler Announces Release of Grand Jury Report Regarding Newburgh School District

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Orange County District Attorney David M. Hoovler announced that an Orange County Grand Jury has issued a report that makes specific recommendations as to how the Newburgh Enlarged City School District can improve its attendance policies and curtail improper use of its computer online credit recovery program. 

The investigation began in 2017, after a former teacher and varsity athletics coach at the Newburgh Free Academy made a complaint to both the New York State Education Department and the Orange County District Attorney’s Office regarding manipulation of Newburgh Free Academy student-athletes’ attendance records, and on a larger scale, chronic student absenteeism.

A special Orange County Grand Jury was empaneled on January 10, 2019.  Over the course of six weeks, the Grand Jury heard testimony from fifteen witnesses and considered thirty-one exhibits, including tens of thousands of entries of data from Infinite Campus, Inc., the company that manages the District’s student attendance software, and APEX Online Learning, which produces the online courses that the District uses for “credit recovery,” and other online learning programs, as well as hundreds of pages of attendance records.  The testimony produced over nine-hundred pages of transcripts. The Grand Jury also examined documents obtained by search warrants executed at District Offices. The Orange County District Attorney presented evidence so that the Grand Jury could make specific recommendations as to how the Newburgh Enlarged City School District can improve polices regarding student attendance and academics in order to foster a proper environment for education and extracurricular activities.

The Report was written in as neutral and non-accusatory a way as possible, so that the facts would speak for themselves and the Grand Jury could make specific recommendations to the District.  Orange County Court Judge Craig Stephen Brown issued an order authorizing release of the Report.

The Grand Jury found numerous instances of chronic absenteeism, particularly among some student-athletes, and issues with how attendance policies were administered in general.  According to one witness, between 2015 and 2017, excessive numbers, “triple digits” (hundreds) of students participated in athletics while ineligible under the Newburgh Enlarged City School District attendance policies. There were several sports teams between 2014 and 2017 that had multiple student-athletes participating while ineligible.  This fact was corroborated by comparing the attendance records with news media accounts of the student-athletes’ participation. A review of attendance records of student-athletes for which there were news accounts of their athletic participation revealed that between 2014 and 2017 at least seventeen student-athletes across various sports – including Newburgh Free Academy Boys Soccer, Boys and Girls Track, Baseball, Football, and Wrestling – had twenty-nine different instances of participating while ineligible.

The Newburgh Enlarged City School District attendance policies provide that “[f]or absences, the written excuse should be presented by the student on the day when returning to school following such absence but must be presented within five (5) school days after returning to school.” However, the evidence in the Grand Jury demonstrated that in some cases “unexcused” absences for some Newburgh Free Academy students were changed to “excused” tardies 190, 210, and even 215 days after the actual absence.  Additionally, there were approximately 1,100 instances of this “5-day rule” being broken by various attendance office personnel and in some instances, a corresponding building administrator at Newburgh Free Academy approved the change.

The Grand Jury heard evidence that the District was made aware of these issues as early as 2010, when a local paper reported that the starting basketball players on a 2009-2010 championship team cut “hundreds” of classes during the school year, but never missed a game. One District employee testifying about lax student attendance policies noted, “I think it’s too easy.  It’s too easy a process.  You know, we’re pushing these kids through school.  We’re not focusing on academics like we should.”

APEX Online Learning was designed as a way to have students make up for failed courses through computer learning.  Issues with the District’s use of APEX however, included evidence that teachers would regularly “override” or change the test results of students taking the computer courses. One APEX teacher at Newburgh Free Academy had 99 grade overrides, one had 275 overrides, and one had 325 overrides between 2016 and 2018.  It was so prevalent and commonplace that thirty-three different APEX teachers had at least one grade override between 2016 and 2018.  Evidence showed that between 2016 and 2018, numerous APEX students were marked as completing their respective quarterly APEX courses in under two (2) hours, and then remarkably received a passing grade of a 70 or above.  The evidence revealed over 100 such instances.  Some of these passing grades were in fact well above a 70, including grades of 97, 98, and 99, all achieved in under two hours.  When a District employee witness was asked to explain how a student could complete even four scored 10-question quizzes in only 18 minutes with an APEX Final Grade of 98 (out of 100), the witness testified that to finish four 10-questions quizzes in 18 minutes was “insane,” noting that one could not even read all those questions in 18 minutes, let alone answer them correctly.  

The Grand Jury made the following recommendations:

It was recommended that an Independent Attendance Monitor be hired at the District’s expense, and that they not be an employee of the District, in order to avoid the appearance of impropriety or bias.

The Grand Jury recommended that the District consolidate its attendance policies and adopt one uniform policy that should be submitted to the Newburgh Enlarged City School District School Board for vote and approval on a yearly (or more frequent) basis.

The Grand Jury recommended that this consolidated and uniform attendance policy should (1) set a maximum number of tardies (excused or unexcused) allowed in a given marking period, generally for all students; (2) set a maximum number of tardies (excused or unexcused) allowed in a given marking period for participation in athletic and extracurricular activities as well as enrollment in APEX or other credit recovery programs; and (3) require written proof kept on record for a minimum of a four-year period in the student’s file in the form of a verified parent or doctor note, or some other type of verifiable documentation excusing/clearing the absence or tardy.   

The Grand Jury recommended that “exempt” absences be used for instances such as half days, early departures, sports/games, or other school related departures that are applicable to a larger group of students, and not just a select few.  Otherwise, absences for illness, college visits, guidance counselor office visits, and the like, should require, verifiable documentation noting where the student was on a given day/time.  If proof is provided and is deemed legitimate, the absence should be marked “Excused.”  If not, the absence should be marked “Unexcused.”   

The Grand Jury recommended that building administrators and guidance counselors take a more proactive approach in identifying and addressing chronic absenteeism at Newburgh Free Academy. 

The Grand Jury recommended that the reconciliation period for adjustments and modification to Infinite Campus attendance records should be limited to a finite period after a given attendance incident.

The Grand Jury strongly recommended that if the Newburgh Free Academy is going to continue to run the APEX Online Learning program at its campuses, that an independent monitor be hired at the District’s expense in order to not only oversee the administration of the program, but to effectively run it according to APEX’s Best Practices. 

  • The Grand Jury recommended that the District have APEX consider implementing any number of the following changes to its software to ensure that its Best Practices are adhered to:

  • Disable the ability to turn off the Question Randomization setting – it does not serve any honest or beneficial purpose to turn off the Question Randomization setting but instead, it serves primarily as a tool for cheating.

  • Disable the ability to turn on the Question Feedback setting – it does not serve any honest or beneficial purpose to turn on the Question Feedback setting but instead, it serves primarily as a tool for cheating.

  • Cap the number of grade overrides for a given student/license – with seemingly endless teacher grade overrides permissible, it defeats the ultimate purpose of a student earning a grade on her/his own.

  • Cap the number of quiz resets – as it stands, APEX allows for an endless number of teacher-initiated quiz resets which defeats the ultimate purpose of a student earning a grade legitimately.

  • Disable manual input of a Final Score – the APEX Final Score should be an APEX generated score based on every possible grading option contained within the software, and not subject to manual override or input.

  • A full copy of the Grand Jury’s Report, including its Findings and Recommendations is posted on the District Attorney’s website.

The Grand Jury was aided in its investigation by Assistant District Attorney Matt Ross, Orange County District Attorney’s Office Criminal Investigator Gary Cooper, and Data Analyst Chris Eufemia of the Hudson Valley Crime Analysis Center.

“The primary mission of our schools is to provide students with an education to help them lead fulfilling and successful lives,” said District Attorney David M. Hoovler. “I hope that the Newburgh Enlarged School District will carefully consider the Grand Jury’s recommendations so that working together we can provide students with the education that they deserve.


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