Wednesday, April 16, 2014

Another win - no lawyers' fees!

Yesterday we received a ruling from the Superior Court that LASD does NOT have to pay BCS's legal fees from the 2009-2010 case.  I've already written a lot about the legal fees demand from BCS, and have chronicles quite a bit of this particular part of the legal drama.  (Link to all LASD Observer posts on attorney fees).

The judge spent the better part of 10 pages thoroughly dissecting every aspect of the BCS claim for fees.  It breaks down into two major findings:

1) BCS did not "win" enough of the 2009-10 case for them to claim they were entitled to fees.  The courts highlighted that on the key issues, such as their demand for the Gardner campus, the Appellate Court rebuffed the requests.

2)  Even if BCS had won enough of the case, they did not confer a "public benefit" on others.  That is, they stood to gain a great deal more than their costs in litigation, which means they really aren't eligible for legal fees.

An honest read of the ruling will show that the District's request for fees/ sanctions over and above the sanctions already issued was denied.  The courts pointed out, in effect, that this is high stakes litigation, and we're going to incur substantial costs.  I wish it didn't have to be this way, but that issue is largely under the control of a Board where I am not a member, so we'll take it as it comes.

I won't try to add a lot here, other than to thank the court for their thorough research on the issue.  Given the judicial record in this case, and the fact that BCS has (unsuccessfully) appealed many of the recent rulings, it appears that Judge Lucas was extra careful to dot every I and cross every T.  I know how she feels.  Still, it's nice to see the courts give such careful consideration to an issue and to be affirmed in the key aspects of the outcome.  I look forward to a time when the headline on this blog will indicate that LASD and BCS are both spending all of our resources in the classroom.

Once again, I'd like to thank Ray Cardozo at Reed Smith for his expert work in this case.  Ray has been extremely diligent going through a very difficult discovery process to uncover the facts that underpinned the district's successful defense in this matter.  Ray, Adam and Paul at Reed Smith, as well as John, Dino, and the rest of the team at BWS Law- thanks a million.  (OK, thanks $1.5M!)

And of course here is the ruling

Sunday, April 13, 2014

Truth in the Courts

In my other post today, I discuss the efforts of a community member to get a copy of Ken Moore's declaration in part of the recent court battles.  BCS thwarted that effort by seeking and obtaining a protective order to prohibit LASD from providing a copy of that deposition to the community member who sought it.  This post examines an important "story within the story" around that process.

In the recent battle over Ken Moore's deposition, BCS filed a request for a protective order to prevent LASD from delivering a copy of what we consider to be a public record* over to a member of the public who had requested that record.

In their argument to obtain the protective order, BCS started by suggesting that Ken Moore was concerned for his safety.  In his sworn declaration to the courts, he tells the court that he is afraid of kidnapping.  "One of the most significant ways I deal with the potentials threats has been to maintain as low visibility as I reasonably can. In that regard, I do not use Facebook, LinkedIn, Instagram, or the the like.  I do not allow my place of employment, nor the boards that I am associated with, to post any photographic or other images of me".   Yet at the time of the hearing, he was personally featured in a promotional video on the front of the BCS web site.  He's identified by name, so there can be no doubt who he is.  (You can view that video here if you'd like  Ken Moore appears around the 6:20 mark.)  He also has appeared in various other publications like the Silicon Valley Business Journal.  So this clearly wasn't true.  Yet it appears in Moore's sworn declaration to the courts.

I've done declarations, and I can understand if someone made a mistake.  This seems unlikely, though, given the examples listed above and others that I won't include here.  Ken's declaration goes on, though.

"In support of the above goal of maintaining low visibility, I have asked the local newspapers to feel free to quote me, but not to use my likeness.  In light of safety concerns and the simple fact that I am a parent volunteer, the local papers have honored my request".  This statement seems to suggest a pretty sophisticated discussion with the local media.  I'm not an expert on the press, but from what I do know, they tend to consider editorial control to be sacrosanct.

Given my surprise at this statement, I did what a good reporter would do- I investigated.  I contacted the Los Altos Town Crier, The Mountain View Voice, The Daily Post, and the San Jose Mercury News.  Each and every one of these papers denied ever having had such an arrangement in place, or even having knowledge of any such request.  In various ways most of them said the that the suggestion they would make such an agreement was preposterous.

I also asked Mr. Moore himself.  He acknowledged that he had no such agreement with the Town Crier, but refused to elaborate on any discussions with other media outlets.

I submit that these statements are not minor and they are not mistakes.  This was absolutely improper.  In the next paragraph of his declaration, Mr Moore says "I was raised in Los Altos and Los Altos Hills and have lived there for nearly 60 years.  I greatly value the ability to walk the streets, shops, and restaurants and not be recognized or harassed by charter school detractors."  So apparently we've moved from kidnapping to plain old privacy.  But it gets better...

In an ex parte hearing with Judge Lucas, the BCS lawyers confessed that they wanted to prevent copying of the deposition "[b]ecause we believe there could be misuse, embarrassment, [and] harassment [of] our parent volunteers"   Really?  That's what we're worried about?  That someone is going to poke fun of the BCS Board?

According to this declaration, Mr. Moore keeps his image off the internet and he has an agreement with the local press not to run his picture either.  In reality, his attorney confessed to the judge that the real issue was a desire to suppress someone else's free speech, but she didn't correct anything in Moore's sworn statement.

Why do I care about this?  These are just minor details, aren't they?

Folks, this situation is difficult.  We are wrestling with issues of huge importance- literally, matters of Constitutional law, and issues that will shape the future of public education in our state for possibly decades to come.  If participants to these discussions feel that it's ok to invent "facts" to place before the court, we will *never* have any peace.  The community member who sought the video of the deposition lost his request.  I believe that the court was swayed by the declaration Mr. Moore provided.  That BCS was able to submit a false declaration to protect themselves from parody- that isn't how justice is supposed to work. As long as this is how we pursue this issue in the courts, without an honest airing of the facts, I fear that this issue will never be resolved.

*California law has a presumption that public records should be disclosed, unless there are extenuating circumstances.  I will concede that the statue around disclosure of depositions does include an exception for "embarrassment".  To my understanding that is meant to protect ordinary citizens if they need to file a suit involving medical malpractice, or a victim of a sexual assault.  I don't believe it was meant to protect people who are spending taxpayer funds to sue a public school district.  In this case, we're weighing "embarrassment" with the ability of citizens to understand how their government is functioning.

The Streisand Effect at BCS

In 2003 Barbra Streisand sued a photographer to block publication of photos of her home, citing privacy concerns.  In ruling against her the courts found that she did not have an absolute right of privacy, and that the public had a right to see the images. The irony was that in filing the lawsuit, she brought far more attention to the picture than would ever have been generated had she simply kept silent.   (Wikipedia page)

Why do I bring this up?  Strangely, BCS seems unaware of the Streisand Effect.  They have recently spent considerable legal effort to prevent the public from viewing the depositions of BCS Board Chair Ken Moore and former BCS Foundation Chair David Spector.

A member of the public filed a CPRA request asking the District to provide a copy of Moore's and Spector's depositions.  We get CPRA requests all the time- it is part of being a public entity.  The laws in California properly favor disclosure of public records so that the public understands how the government is doing their business.  It's not surprising that someone would want to see these videos.  After all, BCS, (a purportedly public school) is suing LASD, a public school district, for more than $2M in legal fees.  The basis of the BCS claim is certainly a matter of public interest.  Going straight to the source material- the depositions- is actually pretty smart, since it would give the viewer a direct view into the rationale of those who filed the lawsuit in the first place.

BCS started by suggesting that Ken Moore was concerned for his safety.  This was provably false, though.  (See my other post today).  Eventually, the truth comes out, though.  In an ex parte hearing with Judge Lucas, the BCS lawyers confessed that they wanted to prevent copying of the deposition "[b]ecause we believe there could be misuse, embarrassment, [and] harassment [of] our parent volunteers"   Really?  That's what we're worried about?  That someone is going to poke fun of the BCS Board? 

I try to give deference to the courts.  They are charged with a difficult job- sorting out this kind of dispute.  In this particular instance, though- I don't understand this ruling, try though I might.  Parody (the basis of BCS's request for the protective order) is protected First Amendment speech.  The First Amendment was specifically created to protect objectionable speech. After all, speech that is not objectionable speech rarely needs to be protected.  If it were up to me, I'd place the First Amendment and transparency of government above the possible embarrassment of a couple of community members who are suing the public schools.  That isn't my call to make, so I will respect the court order so I won't be posting the video here.  (For the record, I don't have a copy of it).  But I would encourage the public to get to know who these folks are.    

I hate to say this, but to my mind, this comes with the territory.  I've been on the LASD Board for 4 1/2 years.  In that time, people have said made plenty of false accusations and posted ridiculous and sometimes hateful things on Facebook, the Town Crier comments section, and elsewhere.  I don't like it, but it's part of the gig.  As citizens, we have a constitutional right to complain about our government.  When you step forward and take a leadership position to help govern a public school district, particularly as president or chairman of the Board signing  letters to the community and declarations to the court, well, some folks won't like what is being said.  But I didn't run to the courts and seek to hide from the public - all while spending the taxpayers' money.

Thursday, April 10, 2014

Hitting Home - Murrysville, PA

I have watched with great sadness over the past several years as violence in schools has become a national epidemic.  As a District Trustee, there's only one thing that matters to me more than making sure each child gets a great education- that is making sure they get home safely each night.

After Columbine, a friend of mine who was moving to Colorado intentionally chose to buy a house in Littleton.  "The chances of this happening twice in the same area are essentially zero," he told me.  Sadly, last year it did strike again at Arapahoe High School and his own children were in the high school.  We were all so grateful to know that his children were unharmed, but the same can't be said of every child who went to school that morning.

Still, that was in Colorado.  Sandy Hook, in Newton, CT,  was also "somewhere else", and it seemed to me that this "epidemic" was a serious problem, but it was affecting others.

Until yesterday.

I graduated from Franklin Regional High School on June 6, 1985.  I remember the date because I had the support of close friends through what were the toughest times my 17-year-old mind could imagine.  But I never faced anything like what my fellow Panthers faced yesterday when one of their classmates went on a spree and stabbed more than 20 people.  From this day forward, those kids will never have a "normal" high school experience.  There will be "before" and "after".  It will alter their lives permanently.

My kids are already asking about what happened.  I wish I had answers, but I don't.  How do you make kids feel safe in their hometown when something like this happens in my hometown?  But somehow I'm going to have to find the words...

The Los Altos School District already has drills and safety measures in place to deal with a crisis like this, but we have to do more.  Knowing how to manage a lock-down is nowhere near as important as making sure we don't need one in the first place.  We provide funding for CHAC, which is a great resource if a child is struggling.  Project Cornerstone talks about sticking up for other students, but it also emphasizes helping your fellow students.  We all need to make sure that any child who struggles gets the help they need.

As parents, we do not have the luxury of thinking this will only occur "somewhere else".  Murrysville, PA, Newton, CT, and Littleton, CO do not fit the stereotypes of places we associate with violence.  They aren't gang-ridden, overrun by drug dealers.  I can tell you- these are places just like Los Altos, Mountain View, and our wider community.

Thursday, April 3, 2014

More Views from the Outside : SCCSBA

This article was authored by Michael Gipe, President of the Santa Clara County School Board Association (SCCSBA). It appeared in the April 2013 SCCBA newsletter.


“The Los Altos School District will be a leader in revolutionizing learning for all students.” 

 That’s a fairly radical vision statement for a school district. Fomenting revolution? And it’s not just a catchphrase to post on their website. They really mean it, and have put their money where their vision statement is. For at least four years, Los Altos has been using non-traditional teaching strategies in many of their classrooms. Los Altos was the first public school district to partner with Khan Academy in a pilot program for junior high mathematics. With this experiment, they learned a lot about what works and what does not.

 Since then, they have enthusiastically incorporated technology and novel strategies into a blended instructional model for many classes. This focus on improving teaching and learning has solid support from the superintendent and board. They built a dedicated facility, called the iLearn Center, staffed with three full-time experienced teachers, which is used to pilot new methods and train teachers in their application in the regular classroom.

Public schools tend to be pretty conservative places. Today’s classrooms don’t look a lot different from those of a hundred years ago, even though dry erase marker odors have replaced chalk dust as the main environmental hazard. After all, why replace something that works, albeit imperfectly, with something new, unknown, and untried, especially when the consequences of a major failure will affect students for their entire lives.

However, the traditional model doesn't work well for all students, especially those who are more than one sigma away from average: special needs, gifted and talented, ethnic or racial minorities, disadvantaged by home or economic challenges.

 Los Altos is trying to improve on that picture even though they realize that not every idea they try will be successful. However, by rapidly cycling through the continuous improvement model -- Plan, Try, Assess, Revise, Redo – they've found that they can make real advancements.

 It seems to me that the Los Altos School District has 20/20 vision.

 ~Michael Gipe