Friday, November 30, 2012

Open Letter to BCS Parents

Note:  I have sent this letter to BCS Board Chair Ken Moore and asked him to share it with his parent community.  It has also been sent to LASD parents.  I copy it here for those community members who may also be interested. 

Unfortunately,the hyperlinks to various documents were not converted into the PDF document that went out, but perhaps folks will find those links here.

 30 November 2012

Dear BCS Parents:

Yesterday you received a letter from Ken Moore, laying out his views relating to the BCS-LASD litigation and inviting BCS parents to contact LASD Board President Mark Goines. Given Mr. Moore’s invitation for improved dialogue, I thought I would reach out to you to further explain the litigation developments, including certain points that Mr. Moore did not accurately recount.

The District is not asking to close down BCS.
Mr. Moore alleges that LASD is trying to shut down BCS. This is flat-out wrong. LASD’s relationship with BCS is very simple- we provide facilities as required under Prop 39. We have no say in BCS operations or other practices. Responsibility for BCS operations and oversight lies with the SCCBOE, not with LASD.

LASD has filed a cross-complaint in the current round of litigation. In that complaint, we do call out certain issues that concern us about BCS recruiting practices, pupil management, fund raising, and other aspects of the operation that seem to be inconsistent with the concept of a public school and equality among public schools within a district. We did so after a number of parents, some of whom had applied to and/or enrolled children at BCS, came forward with troubling allegations and assertions that we believed merited raising with the Court. We have been very specific in what we requested of the Court in our cross-complaint. We do not ask for the Court to "shut down" BCS, or even ask them to order a specific change in BCS behavior. Rather, we have asked the Court to clarify LASD's legal obligations- nothing more. I understand that folks may doubt me on this, but I’d invite you to read the actual filings with the court.

On the issues BCS deemed most important to their 2012-13 complaint, they've lost all three complaints.
Mr. Moore’s recent letter fails to acknowledge that LASD allocated BCS more than 11 acres this year- far more than they had in 2009-10. BCS is apparently choosing to run their program on a subset of that space, but that's a decision made by the administration and the BCS Board. Mr. Moore also complains about LASD "withholding" facilities, but of course does not acknowledge that the District exercised reasonable discretion to provide comparable space to BCS. (I wrote about this back in August, and my explanation lined up pretty much exactly with what the court eventually ruled.) It's not that LASD is acting illegally- it's just not what the BCS Board wanted to happen.

LASD acted in good faith throughout the mediation process. The parties have differing views of the outcome of the mediation. Before we even entered mediation, LASD said that any deal reached had to reflect community input and have the support of the community so that we could pass a bond. That required community input. Upon drafting a framework for discussion, LASD held a series of meetings, both large and small, to collect community input. One of the biggest surprises in that input was that the LASD parent community was willing to work very hard to pass a bond to build a new school for BCS- as long as it also meant that they might be able to keep their own school. Frankly, this is different from what I expected going into the mediation, and it was a change to the content of a possible agreement, but we explained it to the BCS Board and invited them to work with us to resolve it. The BCS Board wanted “site certainty”, meaning that a possible new campus location was not something they were willing to consider. That was not supported by the broader parent community, meaning we would not be able to pass a bond. BCS wasn’t willing to consider the community input, so the mediated framework fell apart.

The BCS Board has said often that they are “willing to go back to the mediated agreement”, and accused LASD of reneging on that agreement. It is meaningless, though, to offer to go back to something that both parties hadn’t yet agreed to. When retelling the story these days, the District’s requirement to solicit and incorporate public input is being ignored. One vocal group of people seem to think the LASD Board should force through an agreement that doesn’t reflect the community’s wishes. The current LASD Board has openly acknowledged that prior Boards failed when they ignored the wishes of the community (in closing Bullis Purissima). To have some of those same people ask us today to once again ignore the wishes of the community is frustrating. The logical conclusion of that action would be that parents at Almond, Covington, Gardner, or Santa Rita would then be the ones forming the next charter school and suing the district again. They would complain that we’ve put the interests of BCS ahead of the interests of their students- something the law specifically prohibits us from doing.

In his thoughtful op-Ed piece recently published in the town Crier, BCS Board Member John Phelps noted that “[u]sing a global perspective to teach about the interconnectedness of communities and their environments, the Bullis Charter School program nurtures mutual respect, civic responsibility, and a lifelong love of learning.” It is simply inconsistent with that stated mission for BCS to fail to consider the community’s views.

The recent court rulings should be a wake-up call to the BCS Board.
Over the past 2 1/2 months, BCS has lost a series of court appearances- the Aug 30 motion, all three parts of the Oct 30 complaint, the fight over discovery (including sanctions for behavior the court deemed unreasonable), and a slew of procedural efforts designed to do little more than increase the cost of litigation for LASD. In response, the BCS attorney has insulted the judge, threatened to defy the order to pay sanctions, and the BCS Board has plans to appeal all three of the rulings they don't like. For all of the millions –literally, millions-of dollars spent on legal fees, the courts have ruled that the District’s behavior has been correct on nearly all counts. As a result of the District’s one loss at the Court of Appeal, the District changed our methodology of calculation and is in compliance with the court requirements. But Mr. Moore's suggestion that the Court of Appeal will be the salvation is unfounded, and it ignores the different facts now on the table. The ongoing litigation war waged by the BCS Board has forced LASD to be extremely careful and thorough in analyzing and applying the law. At this point, the courts have repeatedly held that we are meeting our obligations. The facts of these new cases are different, and chasing every loss to the Appellate Court is a waste of taxpayer resources and is divisive to the community.

Suing the District for exercising what the courts recognize as an exercise of our reasonable discretion as elected representatives is not a winning strategy. It will never bring healing to our community, and it won't achieve what BCS wants. BCS parents need to reach out to their Board and ask them to work cooperatively with LASD. The District needs to balance the needs of ALL students, including the 4500 that attend LASD schools. If the BCS Board can approach the discussion with that idea in mind, with an appreciation for the need to educate all public school students in our community, we'll all be much happier with the results.

I don’t expect that this letter will suddenly make each of you into LASD supporters. However, Mr. Moore’s letter invited parents to become informed about the facts and to dialog with the District Board about them. Clearly we have different views of the facts. How we choose to resolve those differences- in court rooms, or by working cooperatively in our community—will impact the quality of life in our community for decades to come. The LASD Board has many upcoming meetings to discuss these issues, and I encourage you to come and participate, particularly if you can do so with a mind toward working together to solve these problems. I would also urge each of you to contact Mr. Moore and the rest of the BCS Board and ask them to cease the needless litigation, and work with the LASD Board of Trustees to find solutions that our entire community can support.

My email address is, and I welcome all constructive comments and suggestions for a path forward.


Doug Smith
Vice President, LASD Board of Trustees

Monday, November 26, 2012

Court Rules for LASD in 2012-13 Case

Today LASD received a favorable ruling from the Superior Court on the writ BCS sought related to their 2012-13 facilities.  The courts upheld District actions on all three counts, which is fantastic news.  BCS sought three actions from the Court, and all three were denied:
  1. BCS sought to compel LASD to accept their enrollment forecast for 7-8 grade students.  The courts ruled that LASD is not precluded from using our reasonable judgement when we consider student enrollment projections.
  2. BCS sought to displace Egan students so that BCS students could use the City Gym.  The courts ruled that LASD had rightly weighed the impact on Egan students, and provided different multi-purpose space for BCS.  (See my blog post from August 2012 explaining this issue).  The Court also said we could not be compelled to provide gym space for their K-6 students when LASD K-6 kids don't have access to a gym. 
  3. BCS asked the Court to order LASD to produce an inventory of all furniture and equipment at every school.  The Courts rightly recognized that LASD has tried to work with BCS to ensure that they had reasonably equivalent equipment and furniture, but that BCS was trying to take this issue straight to court instead of working with LASD locally.

We often hear from certain BCS supporters that LASD is abusing the court system to try to deny them adequate facilities, yet the judicial record tells another story.  Last week the courts sanctioned BCS for their refusal to produce documents in their attorneys' fee suit.  Earlier this year, the courts ruled against BCS when they tried to end-run the District's authority to allocate facilities.   Today's rulings confirm that LASD is taking the proper steps and following the law in how we allocate space amongst the 10 school programs running in our community.  In fact, LASD has prevailed in 7 of the last 8 court cases, dating back to 2004.

I have said all along that I look forward to receiving clarity from the courts to confirm that the steps we are taking are permissible.  Today I am grateful for that clarity once again.  It is unfortunate that we have to keep doing this over and over.  I look forward to working with the community to solve this issue once and for all.

Here is the complete ruling from Judge Lucas:
Order Denying Petition for Writ of Mandate

Wednesday, November 21, 2012

BCS Appeals Sanctions

2009-10 Attorney's Fees

Wow- a new land speed record.  With the ink barely dry on the discovery order, BCS has already filed an appeal.  Specifically, BCS is appealing the sanctions that Judge Lucas awarded to LASD to cover the costs we had to incur while forcing BCS to comply with the discovery process.  The BCS attorney telegraphed that he expected to appeal this during the Oct 30 hearing, so I can't say I'm surprised-- but I will say that I remain disappointed. 

The sanctions were awarded because the Judge ruled that BCS had no reasonable basis to fight our discovery request.  Indeed, during the "meet and confer" process, LASD had significantly narrowed the scope of what we were requesting, in an effort to make our request as innocuous as possible while still providing us with the information we needed for our defense.  Apparently BCS feels that allowing LASD to defend itself in court is unreasonable, so they've asked the Appellate Court to weigh in.  As I have grown accustomed to saying, I look forward to the judicial review of this matter.

Here is the BCS Notice of Appeal of Sanctions

Monday, November 19, 2012

Judge compells compliance: Sanctions against BCS

2009-10 Attorney's Fees Request

We just received the order from Judge Lucas, compelling BCS compliance with the discovery process and hitting BCS with sanctions in the amount of $51,085.60.

When BCS brought a motion against LASD to demand that we pay their legal fees for the 2009-10 lawsuit, LASD rightly challenged that claim.  The legal process provides that we are entitled to discovery of evidence that might support our defense.  We filed that discovery this past summer, but BCS has been stonewalling and refusing to provide a response.  On Oct 30, 2012, we argued in front of Judge Lucas to compel that discovery.  Today, Judge Lucas ordered BCS to comply with the discovery.  In the grand scheme of legal rulings, compelling someone to comply with discovery is akin to making them look both ways before they cross the street-- everyone knows you're supposed to do it, so it shouldn't surprise if you fight that and lose the argument.  What was interesting was that Judge Lucas also imposed sanctions against BCS.  By law, the sanctions aren't punitive- it's just meant to make sure we don't have to spend money to get what we are legally entitled to get (the evidence we need for our defense).  I'm told by many lawyers, though, that judges rarely hand out sanctions. 

In her ruling, Judge Lucas says, "Petitioner’s argument that the existence of some evidence to support its factual position should preclude discovery is so contrary to the basic purpose of discovery that it is not reasonably asserted. Accordingly, Respondents’ request for monetary sanctions is granted."  One would think that would inspire cooperation, but we'll have to wait and see.

To be fair, folks need to keep in mind the scope of our victory.  We haven't yet defeated the BCS effort to claim $1.3M in legal fees.  We've just forced them to  provide the evidence we need to defend ourselves in the suit.  Still, I'm pleased to see that the Judge has spoken out against their bad behavior.

Here's the full text of the order:
BCS v. LASD Order Granting Motion to Compel

Saturday, November 17, 2012

Congratulations to Oak School

Around here, we know Los Altos Schools are pretty special.  It was that much sweeter, then, to attend a celebration at Oak School yesterday.  Principal Amy Romem hosted two sessions to share with the students and parents her trip to Washington, DC to accept the President's Blue Ribbon School Award.

The Blue Ribbon program recognizes excellence in education.  There are over 133,000 public schools in America.  Only 219 public schools received this award, recognizing their academic achievement, the culuture of the school and exemplary work by the staff.  The team at Oak - the teachers, staff, parents, students, and principal- should be congratulated for their outstanding work.  Well done, Oak!

Friday, November 16, 2012

What do you want to know?

It appears that someone may have hired a private investigator to dig into my life.  Aside from how ridiculous this is, let me just state it simply:  There's nothing to find.  I'm an elected official.  I have to disclose a slew of information (my salary, my wife's salary, every gift I receive from non-family members, every sporting event I attend where someone else bought the tickets, what stocks and real estate I might own, etc.)  I understand this, and it was part of the deal when I ran for public office.  I just don't like the sliminess of someone doing this behind the scenes.

So I'll put it out there:  If you want to know something about me, ask.  Don't lurk in the shadows- have the courage to ask me the question directly.

Thursday, November 15, 2012

BCS Appeals (Again)

2012-13 Facilities case

I am saddened to report that BCS has filed another appeal.  If this starts to sound convoluted and ridiculous, one could be forgiven for thinking that's part of their legal strategy.

In July 2012, BCS brought a motion before the Superior Court, asking them to use the ruling from the 2009-10 case to find that the 2012-13 offer was improper.  This was a highly irregular move, and the District vigorously contested it at a hearing on August 30, 2012 in front of Judge Lucas.** 

Apparently seeing the writing on the wall after the Aug 30 hearing, BCS did what they should have done at the outset- they filed a new suit, and they did so before Judge Lucas even finalized her ruling form teh Aug 30 hearing.  We had the first hearing for the new lawsuit on Oct 30, and we are currently awaiting a final ruling form the judge on the three issues BCS raised.  The Judge's tentative rulings, though were all favorable to the District. 

Given what seems the likely outcome of the new litigation, apparently BCS has now decided to keep the litigation alive on the other path (which was improper to begin with.)  The Judge issued a ruling in Sept 2012 that said she could not rule on the 12-13 offer under the 09-10 judgement because the facts are all different.  BCS is now appealing that ruling.  It seems crazy to be litigating this on two paths at the same time.  However, it also fits a pattern from BCS to continue to use litigation to try to get the District to simply "cave" and close a high performing neighborhood school. 

I remain disappointed in this behavior.  Litigation is wasteful to begin with.  For BCS to now try to create two paths of litigation in parallel (while apparently not succeeding on either path) is a horrendous waste of taxpayer resources. 

We actually received their Notice of Appeal on November 9th- it has taken me a few days to get this posted.

As is my custom, here is the legal filing:
BCS Notice of Appeal  of Aug 30 Hearing

**Those who attended the hearing might recall the Judge pointing this out to the BCS attorney.  She asked "What am I to make of the additional students [that BCS enrolled in 7th and 8th grade]."  The BCS attorney responded "well, pretend they don't exist for a moment."

Sunday, November 4, 2012

BCS Hearing Follow-Up (Atty Fees)

By now, many of you have seen Mark Goines' summary from the BCS hearing in front of Judge Lucas on Oct 30.  That hearing was to address several issues:

1)  the discovery motion filed by LASD in response to BCS's lawsuit demanding attorney fees in the 2009-10 case
2)  BCS complaints in the 2012-13 facilities allocation
3)  LASD cross-motion on the 2012-13 complaint, asking for clarity on BCS' status as a public school

Judge Lucas was very thorough, and we anxiously await her rulings in these matters.

I want to share one exchange from the hearing that I found quite amazing.  Judge Lucas first wanted to address the discovery motion from the attorney fee case.  LASD had first filed a fairly broad discovery request.  BCS objected and so Judge Lucas held a "meet and confer" call, where LASD significantly reduced the scope of what we were asking BCS to produce.  The most significant change was that we dropped our request for any personal information related to BCS donors.  We restricted the scope to say "give us the amount of each of the top 25 donations, and the status of each of the corresponding donors.  Is the donor a BCS parent?  Community member?  Corporation?  Non-profit entity?"  By removing any personal information, we sought to remove BCS' largest objection (that we were invading someone's privacy) and therefore make it easier for BCS to comply.  All of this happened prior to the hearing on Oct 30th.

During the hearing, there was some back-and-forth about the exact language in the District's proposed court order granting the discovery.  Prior to the hearing, we received a declaration from BCS that caused us to want to go back a couple more years and collect the same information over a slightly broader time period.  I am not certain whether this was discussed this during the "meet and confer" process, and BCS argued that it was a "new" request.

The exchange from here skipped "strange" and went straight to "are you serious?"  Judge Lucas said that the additional request would be permissible under the circumstances.  BCS objected to the additional scope, and the judge again said it would be permissible.  BCS stuck to their guns and said LASD would have to file an additional discovery request.  The judge asked them if they were really going to require that LASD file additional paperwork, esp in light of the fact that she's already telling them that the request is permissible.  BCS dug their heels in and said they weren't willing to allow these two requests to be dealt with in a single order, but that instead we should all be dragged through the process again-- even though the judge has already acknowledged that the District's request is permissible.

Their attorney has indicated that they are going to fight this discovery every step of the way.  Judge Lucas' last action on this was to instruct the LASD attorney to redraft the Discovery order to comply with the outcome of the "meet and confer" process (excluding the additional discovery request).  Assuming Judge Lucas signs that order, I would not be surprised to see BCS file an appeal.  After incorrectly accusing LASD of "dragging out the process" in August, it seems that BCS is now the one who is undeniably using delay tactics.  The District remains committed to pursuing this information.  It is BCS who put it at issue- we just want to get to the truth.