Wednesday, December 19, 2012

District Response to BCS anti-SLAPP motion

In the continuing saga of the 2012-13 complaint, BCS has filed an anti-SLAPP motion against LASD.  I have mentioned the SLAPP suit in letters to parents, but it worth highlighting here what the suit is and what they seek to do.

A SLAPP suit is a Strategic Lawsuit Against Public Participation.  This is generally when someone uses litigation as a tool to force someone to stop raising difficult issues.  The California Legislature has created an "anti-SLAPP statute"- basically, a law making it illegal to bring SLAPP suits, and giving people who are targeted by such suits a way to get the SLAPP suit thrown out.

A casual reader could be forgiven for thinking I was describing BCS as the aggressor.  In fact, that is how the law is intended to be used.  However, in this case, BCS has actually alleged that LASD is the aggressor, and that our counter-complaint is really just an attempt by the District to hurt them.  Nothing could be further from the truth. 

LASD has brought this counter-suit because many community members have raised issues with us, and we feel obliged to place those concerns before the court.  We do not do this lightly, but we feel that the issues are serious, and merit the review of the court.  We are asking the court for clarification of our obligations under Prop 39 if the allegations raised by members of the public are, in fact, true.

You can read about the BCS anti-SLAPP suit here, in an earlier blog post. (includes all documentation).

Today, the District filed our response to this frivolous suit.  In our response, we've highlighted a couple of key issues.  First, the anti-SLAPP statue specifically permits entities such as LASD to bring these kinds of issues forward on behalf of the public.  Second, there are considerable legal cases on record already that deal with this, that BCS has neglected to address.  We have asked the court to award fees and costs, as we believe the BCS anti-SLAPP suit to be completely without merit.

Again, we look forward to hearing from the court on this matter.

LASD Opposition to Special Motion to Strike

Decl. of Ray Cardozo
Decl. of Doug Smith
Decl. of Adam Forest (part 1 of 3)
Decl. of Adam Forest (part 2 of 3)
Decl. of Adam Forest (part 3 of 3)

Joint Stip. to Extended Pages
POS of Opposition to anti-SLAPP

Tuesday, December 18, 2012

What is Declaratory Relief?

I'm not a lawyer, although my father was for many years.  This column is not to be construed as legal advice.  However, I have "passing" familiarity with legal terms.  One term that cropped up recently, and is new to me, is Declaratory Relief or a Declaratory Judgement.

Basically, someone can seek a Declaratory Judgement if they need clarification of a legal issue that is likely to end up in court.  According to, courts tend only to hear Declaratory requests when there is an important constitutional issue.  (See their definition here)

In our Cross-Complaint against BCS, the District is seeking Declaratory Relief.  We are asking the courts to tell us in advance what our responsibilities are under Prop 39 if the allegations against BCS are true.  We aren't asking them to order BCS to do anything specific- just asking for clarification of what we need to do under Prop 39.  I've heard accusations that we're trying to shut down BCS, but that simply isn't true.  We just want to understand our obligations.

Wednesday, December 12, 2012

Where your BCS contribution went

I've been working with our attorneys on a response to the latest BCS legal efforts in the Attorney Fees claim.  I'll share more about that document later.  However, I have a simple thought I think everyone should be concerned about. 

In their effort to collect attorney fees for the 2009-10 school year, there's a key question of how the litigation was funded.  In recent court filings, BCS legal advisor (and former head of the BCS foundation) David Spector affirms under oath that there is no "special litigation fund", that the funds for the litigation came directly from the general operational funds for the school. 

BCS further asserts that the 2009-10 litigation cost them $1.3M.  In the 2009-10 school year, BCS had 324 students.  If I recall correctly, the requested contribution in that year was about $3000.  If every family gave at the "ask", that means they brought in $972,000.  What that really says is that they spent every dime that was donated, and then part of the general budget, on litigation. 

I've spoken to what I'll call BCS moderates- parents who just want a good education for their child, and don't consider themselves part of the "charter movement".  They tell me that they've been assured that their contributions don't fund the litigation, because if it did, they wouldn't give.  I understand that sentiment, but the budget is relatively fungible.  If they have $4m in general funds, and parents contribute $975,000, what would happen if they weren't pursing a hugely expensive litigation campagin?  That money would be spent in the classroom, where it belongs.  Instead it is going to fuel the legal machine. 

When pressed about the fundraising tactics of BCS, Ken Moore has told the SCCBOE that BCS has a special litigation fund, and that the litigation costs are not coming out of the donations.  There's an obvious contradiction with the sworn statement of David Spector, but we will have to leave it to the discovery and evidence process to figure out whether Ken's statement or David's statement is correct.

I will post links to the various statements from Ken Moore and from David Spector shortly.  Meanwhile, I'm pondering that $972,000.  Even if you didn't mean to fund the litigation, you really did...

Update on 18 Dec 2012: I came across a message from the Foundation dated January 27, 2010.  The message states that the enrollment for 2009-10 was 350 (I presume that includes non-Districti students) and says the ask was $4000.  Their total target for the year is $1.4M, incl. a $100,000 match from the Moore Foundation.  The totals are slightly different but my point remains the same...

Monday, December 10, 2012

District Discovery Requests & Data Privacy

Note:  This is a fairly long post, but it addresses the nuances of our legal position on the discovery requests as part of the BCS litigation.  I'll come back and add hyperlinks to the various documents, but I wanted to get this out today.

Dear Parents and Community Members

Just last week, I sent a letter to BCS parents in an effort to clarify what I felt were inaccurate remarks in a letter from BCS Board Chairman Ken Moore. This Friday, Mr. Moore sent another letter that continues to misrepresent the current situation in the BCS litigation against LASD. While I don’t wish to engage in a long-running letter war with BCS, I am also very aware of the damage that can be done if factual inaccuracies are left unanswered. Therefore, I’m writing again to help shed some light on the LASD view of the situation.

BCS has launched several parallel tracks of litigation against LASD. Each of these tracks requires a separate response from the District. Mr. Moore’s letter blends these tracks together, either intentionally or otherwise.  It is my belief that by doing so, BCS is creating unnecessary fear within it's parent community.

I want to be very clear: This letter represents my layman’s view of the litigation. If you would like to understand the totality of our legal position, it is important to read our complete legal filings. Nothing in this letter should be construed as limiting the District’s legal position in any way.

Attorney Fees/ Donation Records
In the 2009-10 case, BCS has demanded that LASD pay their $1.3m legal bill. This is based on a legal theory that BCS launched this lawsuit “for the greater public good”, rather than simply to obtain benefit for themselves. In order to respond to this suit, one important question to answer is, “who funded the lawsuit?” LASD is therefore seeking information about the donations that paid the BCS legal bills.

The District has requested information about the 25 largest donations received in each of the prior 6 years at BCS. We’re asking for the amount of the donations, and the nature of the donor- (parent, non-parent, corporation, non-profit, etc.) We are not requesting specific names of donors.

BCS has refused to provide this information and Judge Lucas has sanctioned them $51,000 for failing to produce the records. BCS has filed an appeal of Judge Lucas’ order, and their attorney has openly mocked the order in recent press articles. LASD will continue to pursue this data, as we feel it is vital to our ability to assess the nature of the BCS claims that would siphon valuable funds away from public education in our community.

Facilities Requests and Student Data
As custodians of public assets, LASD has a legal obligation to ensure our facilities are used in a manner consistent with the law. In our own schools, that means the District ensures that each child an LASD school is supposed to be there. It gives me no pleasure to say that occasionally we discover a child in an LASD school who does not live within our boundaries and we are forced to ask that child to leave. From a human standpoint, it is heartbreaking- a family seeks a better education for their child so they use a local address and enroll that child in an LASD school. However, the reality is that we can’t afford to educate every child in the State. Our resources are finite, and we have to restrict our services to those students who live within our community.

Under Prop 39, LASD is legally required to provide facilities to BCS for their “in district students”. In order to understand how many in-district students they have, we need to review the student records. This is hardly unusual. LASD currently enrolls 4500 students, and we have records for students stretching back nearly 5 decades. Student data is nothing new to LASD. We are simply making sure that the students that BCS represents as “in district”, in fact, are in district students.

BCS has turned this issue into something much larger than it needs to be. The District has requested that we enter into a protective order, which is a formal mechanism from the courts that would limit access to the BCS student data only to those people who need to review it. We would treat the data with great care, and frankly it would be more compartmentalized than even LASD student information. Instead of simply providing the data and allowing the District to confirm that the students are in-district, the BCS legal team has turned this into yet another fight that consumes taxpayer funds.

Student Discrimination and the BCS anti-SLAPP Suit
Over the past several years, an increasing number of parents have approached LASD with disturbing allegations about BCS behavior. They have raised concerns with us about the BCS application process, the pressure to make a $5000 “donation” each year, the chilling effect that request has in the application process, and the way that BCS does or does not meet the needs of students who might require extra help in reaching their educational goals. LASD does not have direct oversight of BCS, but we are a public agency, and we have an obligation to ensure these concerns are raised.

As a result of these allegations made by members of the public, the District filed a cross-complaint with the Superior Court to bring these issues to light. We are asking the court to review this information and determine whether BCS is a public school or if they fall into a different category (such as a private or semi-private school). If the courts find that these allegations raised by the community are true, we’ve asked the court to clarify LASD’s only interaction with BCS- our facilities obligations. We have not asked the court for any other relief. For example, we have not asked the court to deprive BCS of the funds we transfer to them (though it would be in the court’s power to do so.) We haven’t asked the court to order BCS to change their enrollment process, or how they recruit. We’ve only asked for clarity on how this might impact the facilities we need to provide.

In order to examine these questions, the court will necessarily need to review BCS student data. For example, it is impossible to see whether BCS is discriminating against children with special needs without examining whether they enroll and service children with those types of needs. This is all part of the cross-complaint LASD filed against BCS on behalf of the public.

To protect citizens who speak out on issues of public significance or who petition the court to have a grievance heard, the California Legislature passed the anti-SLAPP law. Since the District has asked the Court to clarify the law on an issue of public significance, the District is engaged in the exact type of conduct that this law seeks to protect. I will leave it to our lawyers to present the anti-SLAPP response, and will post it on my blog when the response is filed on December 19. For the moment I will just say that BCS has completely misstated the anti-SLAPP law. I will not be surprised if the BCS motion results in the Court imposing a monetary penalty (known as “sanctions”) again—just like the Court did the last time we were in Court.

I am deeply disappointed to have to continue to write letters like this one. Frankly, I don’t want to end up in some tit-for-tat letter writing campaign with BCS. (For starters, I don’t have a PR firm to write my letters, and it diverts my time away from the more important business of our School District). However, I am also painfully aware that for too long BCS has been willing to spread misinformation to their parents and to the wider community. When this happens, it distorts the public’s understanding of the issues, and that just isn’t right. I will continue to speak out when I feel it necessary to ensure that our entire community has the facts.

I look forward to speaking with you all soon about some of the more positive things going on in our District. We held new-family information nights this week, and the excitement in the room I attended was palpable. Parents and the broader educational community are realizing that LASD has an incredibly successful way of helping each child to reach their fullest potential, and I am incredibly proud to serve our community in this way. I invite each of you to stay engaged, to remain informed about the litigation, but also to focus on the much greater educational success we are enjoying with your support.

As always, you may reach out to me with thoughtful comments at .

Best wishes,

Doug Smith

Vice President, LASD Board of Trustees

Monday, December 3, 2012

Update on 2012-13 lawsuit

BCS has filed two actions with the court today, both related to the 2012-13 facilities offer.

#1)  BCS filed an anti-SLAPP suit.  These actions are generally intended to allow someone to halt frivolous litigation that doesn't have merits on it's own.  However, in this case, the process is being misapplied as a way for BCS to attempt to eliminate the District's cross-complaint in the facilities issue.  I won't go into the legal reasoning, but we are very confident that the Distr'ct amended cross-complaint will be permitted to stand, and that the anti-SLAPP suit will be defeated.  However, it does serve to drag out the process.

#2)  BCS filed actions trying to eliminate the District's cross-complaint on other grounds.  if you're a legal eagle, you can probably make good sense out of this.  I read it as yet another attemtp to ignore what's really going on.  I haven't had a lot of time with it yet, but wanted to get it all out there so people can review it.

Attached are all of the relevant documents.

Amended Cross-Complaint
LASD Amended Cross Complaint

Anti-SLAPP Motion
BCS Special Notice (Anti-SLAPP Motion)
Memo of Points and Authorities  (case arguement)
Eyring Decl. (anti-SLAPP)
Proof of Service

Actions of 2012-13 Ruling
BCS Notice Demurrer
Memo, of Points and Authorities (Demurrer)
Request for Judicial Notice
Exhibit A
Exhibit B
Exhibit C
Exhibit D
Exhibit E
Exhibit F
Exhibit G
Proposed Order

Study Session Update

I just returned from the Board meeting this evening.  We held a study session to consider 5 different options for addressing the BCS facilities issue.  I have to say, the meeting went very well.  We had ~140 people in attendance.  The audience chose which of the 5 topics was of interest to them, and joined a facilitated discussion to consider that option in more depth.  After a ~90 minute session, the results from each group were shared briefly with the Board.  We'll receive a more detailed write-up, and these points should help guide our discussion later this month as we move towards a facilities plan.

My thanks to Project Sentinel, for supplying the many facilitators and scribes that were needed to run 5 concurrent sessions.  The dialogue was very helpful.  Special thanks to all the audience members who took time out of their busy schedules to come share their thoughts with us.

Sunday, December 2, 2012

Important Board Meeting on Monday, Dec 3

On Monday, December 3, the Board will hold a study session in the Covington mutli-purpose room to discuss possible options for the BCS facilities offer for this year. As described by our Board President, Mark Goines, those options are:

1.) Split BCS between the Egan and Blach campuses

2.) Split BCS among three LASD campuses

3.) Place BCS on the Covington campus and relocate Covington students to other campuses

4.) Place BCS on the Santa Rita campus and relocate Santa Rita students to the current BCS campus at Egan

5.) Place BCS on a site outside of the District within Santa Clara County

We will ask members of the community to provide input on these options by participating in working groups during the meeting. Each group will be asked to assume that their option has been chosen by the Board, and to come up with a list of steps we should take to make that option work as best as it possibly can.

This is intended to be a constructive process, and we encourage open dialogue. Hopefully BCS parents will attend as well. WE ask that all participants be cooperative and respectful of other opinions.

Collecting this input will help the Board assess options for the Feb 1 preliminary offer deadline.

I look forward to seeing many of you at the meeting.

LASD Objections to BCS Enrollment Projections

2013-14 Facilities Process

As a quick reminder, along with the drama in the courtroom, we are still moving down the normal path proscribed by Prop 39 for the 2013-14 school year.  On Nov 1, BCS delivered their request for facilities, which included their enrollment projection.  The next step in the process was Friday, when we delivered our counter-projections.  Historically, BCS has over-projected their enrollment, and the District has generally accepted their numbers.  Last year, LASD counter-projected, and decided to use our counter-projection when we provided facilities.  BCS raised this as one of their three key issues in their recent suit.  The Judge ruled that the District does have discretion to use our own projections.  BCS has announced that they will be appealing that decision.

Nov 1
BCS submits request for facilities, incl. enrollment forecast and preferred location.
Dec 1
LASD provides counter-projection to enrollment
Jan 1
BCS responds to counter-projection

Feb 1
LASD provides preliminary facilities offer (draft)

Mar 1
BCS responds to draft offer

April 1
LASD provides final facilities offer

July 1
LASD adjusts classroom space based on final district budget for upcoming school year
(Note:  This is a negotiated step, not part of the Prop 39 process)