News: CJ Exclusives

Ongoing dispute between Istation and Amplify may be heading to court 

N.C. Superintendent of Public Instruction Mark Johnson, pictured here in his office. (CJ photo by Don Carrington)
N.C. Superintendent of Public Instruction Mark Johnson, pictured here in his office. (CJ photo by Don Carrington)

State Superintendent Mark Johnson isn’t happy with how the N.C. Department of Information Technology has handled the dispute between Amplify and Istation for the K-3 reading contract, and he’s taking the matter to the courts.

The N.C. Department of Public Instruction has formally petitioned the Wake County Superior Court to review DIT’s stay blocking the K-3 reading diagnostic tool contract award to Istation. 

In a letter Tuesday, Dec. 17, to DIT Secretary Eric Boyette, Johnson details his problems with how the department has handled the situation. The state superintendent called into question whether DIT “can properly adjudicate a contested case of such complexity and public interest.” 

Johnson claims the designated hearing officer in the case, Jonathan Shaw, mishandled the review of the stay. The state superintendent claims Shaw, who is also DIT’s general counsel, demonstrated “he has difficulty separating his dual roles as hearing officer and as DIT agency counsel.”

The letter says DIT’s handling of the matter was flawed from the start. 

For years, the state contracted with Amplify to monitor progress with Read to Achieve, an act requiring reading proficiency before third-graders can advance. Instead of renewing the contract with Amplify, DPI awarded the $8.3 million deal to Istation. 

Amplify challenged the decision, saying Istation was developmentally inappropriate for children and failed to meet Read to Achieve standards for a reading-diagnostic tool. Critics of the decision argued Johnson improperly swayed the selection committee to pick Istation. 

After failing to get DPI to reconsider the contract award, Amplify turned to DIT. On Aug. 19, the information technology department granted Amplify’s motion to temporarily stay the implementation of Istation while the dispute over the reading diagnostic contract was heard. 

“The order was summarily entered without giving NCDPI (or other interested parties) notice or an opportunity to be heard as required by state law,” Johnson wrote. “NCDIT was unfairly biased because this serious flaw meant NCDIT’s decision was made after hearing the alleged facts from only one party, Amplify.” 

The state superintendent argued DIT’s order was “vague” and “flawed” and caused “unnecessary confusion in school systems throughout the state. 

DPI challenged the stay with a motion to reconsider. Shaw presided over the review. On Dec. 9, Shaw upheld Amplify’s motion to stay pending a hearing of the case, set for January. 

But it wasn’t a total victory for Amplify. Shaw’s order failed to block an agreement between Istation and Johnson to provide Istation’s reading tool for free. Classrooms across the state have already started using Istation despite the ongoing contract dispute. 

Johnson argues Shaw made concerning statements during the settlement conference between the parties. 

For one, the letter says Shaw acted in an “unorthodox manner” by proposing his own settlement offer to the parties. The letter says the offer was to allow Amplify to serve as a second vendor alongside Istation, even though the law governing Read to Achieve permits one vendor. 

Johnson’s letter says Shaw proposed DPI enter into the agreement regardless of state law and retroactively seek a statutory change during the next legislative session. DPI rejected the suggestion. 

Second, Johnson argues Shaw intentionally delayed issuing a ruling in hopes the parties would reach a settlement that would allow him to avoid deciding.

Shaw finally issued an order on the motion to reconsider the stay but, Johnson said, it was just as flawed as the Aug. 19 order and failed to “apply the proper legal standard for entering a stay.” The letter contends Shaw used a nonexistent legal standard of evidence — “sufficient information”— as the basis for his ruling. 

“Mr. Shaw makes the legal conclusion that his designation as the hearing officer in this matter empowers him to disregard procedural law and cloaks him with broad authority to terminate or pause information technology contracts at his sole distraction,” Johnson wrote. “This assertion is wrong and a clear abuse of his limited authority as a hearing officer in a contested case.” 

DIT denied to comment on the ongoing case.