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.

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 dsmith@lasdschools.org .



Best wishes,

Doug Smith

Vice President, LASD Board of Trustees