Litigation Update

It's the summertime, and we'd all like to forget about some of the drama- but I still get questions, so I thought it would be good to share a quick update on the litigation. 

2013-14 Lawsuit
This suit, filed by BCS shortly after the final offer was delivered, raised two challenges to the District's Final Offer of Facilities.  The first part of the challenge asserted that the District could not split BCS across two campuses.  (blog post)  Judge Pierce issued a ruling in favor of the District on the first part just a few days after the hearing.  (ruling for LASD). 

The other part of that lawsuit challenged the District's underlying CEQA study that authorizes the split and provides facilities for BCS at each site.  All CEQA suits are heard by CEQA judges (not the normal Superior Court judges) so we will be in front of yet another judge.  The hearing date for that final part of the 13-14 lawsuit has not yet been set.  We are currently working with BCS on the gathering of documents for the evidence in this effort.   I don't have a court date for this, but the schedules are proscribed by statue, and they're pretty aggressive.  I believe we'll be in court late this summer or early this fall.

"Raynor" Challenge
When the District began exploring the purchase of Raynor in Sunnyvale, we filed a request to the courts for declaratory relief- basically, asking the courts to rule in advance that it is legal for the District to acquire a site outside the District boundaries.  BCS filed a separate lawsuit asking that the District's bid for Raynor be voided by the courts.  Although LASD was not selected by Sunnyvale as the preferred bidder, our request for delcaratory relief is still before the courts because it asks the general question of whether this is legal (vs. the specific question of whether Raynor is legal).  We will have a court date to hear arguments on this issue some time the week of July 22, 2013.  It is my understanding that the Charter School Association has filed an amicus brief in this issue.  (brief)  I'm not surprised by their position -- nor their involvement.  However, it should come as no surprise that I don't agree with what they've said.  We'll see what the courts have to say next week.

2012-13 Lawsuit
When BCS filed their challenge to the 2012-13 facilities allocation, they peeled off key issues to litigate first.  Those issues were all won by LASD back in October 2012.  (court docs, blog post)   There remain a few questions on the BCS case, but I'm not clear on how would those proceed given the fact that the 2012-13 school year is complete.  As a positive step, the 2013-14 case seems to have been moving at a much faster pace, so we shouldn't find ourselves in that position again.

2012-13 Cross Complaint
When the District was approached by community members with concerns about BCS behavior, we filed a cross-complaint asking the court to determine how such actions might impact our duties under prop 39.  For most of last year, BCS tied up that cross-complaint using the anti-SLAPP statute.  (blog post)  With the Appeals court clearing the anti-SLAPP suit, the District is able to move forward with discovery in that lawsuit.

2009-10 Appeal and Attorney's Fees
From the 2009-10 lawsuit, we are still working on the attorney's fee demand from BCS.  The courts sanctioned BCS in November 2013 for refusal to conduct discovery in this case.  (blog post)  BCS appealed these sanctions, but the appeal was denied.  At this point, we've received discovery from the BPEF (Their version of the LAEF), but have not yet completed discovery with BCS itself.  Once that discovery is complete, we will move toward a hearing on the actual fee demand from BCS.  There is not a date set for that yet.



So, the litigation machine moves forward.  I am reminded of some very sage advice I received last year.  "The best way to win a court case is to do the right thing in the first place."  I continue to be encouraged by the consistent rulings from the court for LASD.  I believe it shows that we have been doing the "right thing" throughout this process.  I say that not with any sense of gloating or malice- I simply hope that folks begin to understand that the District is, in fact, acting in accordance with the law.  If we all want a different outcome, we're going to need to find a way to negotiate our way to that outcome.

Raynor Site

Tonight I attended the Sunnyvale City Council meeting where they discussed and acted on the sale of the Raynor site.  Readers may recall that LASD put in a bid on this site as a possible home for the Bullis Charter School.  Unfortunately, the council has provided direction to Sunnyvale city staff to begin negotiations with the Stratford School.

Readers may also recall that the District has an open request for Declaratory Relief.  We've asked the courts to determine that we are legally permitted to locate BCS outside of the District boundaries.  We felt that BCS would eventually sue LASD over this question, so it makes sense to ask the courts for clarity.  I am disappointed to say that BCS did show up and speak in opposition to the District's bid.  According to her own statement, this was done at the direction of the BCS Board.  I will leave it to individuals to interpret her statements.  I've attached the recording here.

It would be reasonable to inquire whether this means the Declaratory Relief is no longer required.  We've actually asked the Court the broader question- whether it is permissible to locate BCS anywhere outside the District boundaries.  The Raynor site was certainly one example, but it is obviously not the only location outside of our boundaries.  Thus, it makes sense to have the courts clarify this issue now.  Hence, I don't anticipate any changes to the request.

I'm obviously disappointed that we didn't get the nod tonight, but I certainly wish the Stratford School and Sunnyvale well in their negotiations.  Meanwhile, we'll press on considering other options.

Considering Raynor Site

The Town Crier ran an article today discussing the recent District action to consider the Raynor site in Sunnyvale as a possible location for BCS.  (link to article)  Overall, the article did a pretty good job of explaining the situation.  In a nutshell, Sunnyvale has a parcel available for sale that was a school site back in the 1970's.  LASD is submitting a bid to acquire that site to use as a location for BCS.

Of course, any sentence that includes "LASD" and "BCS" is bound to generate controversy, and this one is no exception.  Before LASD even passed the resolution to do this, the lead BCS attorney threatened to get an injunction to block the action.  BCS has stated that they do not believe it would be legal for LASD to place BCS outside of the District boundaries.

I'd love to be able to say that all laws surrounding charter schools are crystal clear, and that there is no room for doubt or interpretation.  However, this area of the law is relatively new, and as such, the existing laws and regulation require some interpretation.  BCS sees the issue as very "black and white".  However, the District has a different view.  Indeed, even the SCCBOE acknowledges that there are circumstances under which a charter school can be placed outside of the District boundaries.  We received a letter from the county recently detailing their views, and we sent them back a letter in reply.  Both of these letters were mentioned in the comments section of the LATC article.  I'm attaching both the SCCBOE letter and the LASD reply here to dispel any debate about the content of those letters.  (I imagine many will still apply their own interpretation, but there's little I'm going to be able to do about that.)

SCCBOE Letter to LASD
LASD response to SCCBOE

Clearly there are different interpretations of the law here.

• BCS contends that LASD cannot place them outside LASD borders
• SCCBOE acknowledges that there are some instances in which LASD can place BCS outside LASD borders
• LASD believes that those circumstances and other reasons make it legal for LASD to place BCS outside the LASD borders

So, when you find yourself with different opinions on a topic, what do you do?  First, you try to discuss the views.  We did try to engage BCS in a discussion about their view, but they declined to provide their legal reasoning why we shouldn't be allowed to do this.  I had an email exchange with a BCS Board Member where we gave them the opportunity to weigh in, and they declined to provide their thinking.

Failing getting their thoughts informally, the court system actually provides a mechanism to seek clarification of what the law permits.  That mechanism, called Declaratory Relief, is a simple way for LASD to seek clarification from the courts about the legal issues involved in placing BCS outside the District boundaries.  This process is normally fairly quick (~90 days) and LASD is very interested to hear from the courts on this topic.  We believe that BCS should also share that same interest, so we've asked them to agree to a speedy calendar for this motion.  We'll have to wait and see if BCS really believes in their viewpoint, or if they'd prefer to drag out the process.  Either way, this is a significant question on which we need to hear from the courts so that we can all be working from the same interpretation of the law.

Here's a copy of the request for Declaratory Relief


In closing, I'd observe that it didn't take long after the Town Crier article was posted before folks started weighing in with their views of the legality of this, and questioning the wisdom of the LASD Board in pursuing this option.  I can't speak for the rest of the Board, but I will share my own thoughts.

This controversy has dragged on for 8 years.  Over the past year, BCS has filed complaint after complaint with the court, and has exercised every conceivable legal maneuver to either delay the court's rulings or appeal decisions they've lost (multiple times).  Despite their public statements of "compromise" and collaboration, BCS has made it clear through the pace and tenor of the litigation that they won't rest until LASD has closed a site and handed the keys to BCS.  Any statements to the contrary fly in the face of a lengthy court record.

Given this backdrop, LASD needs to move as expeditiously as possible to secure a site for BCS so that we can prevent the disruption of the education of 4500 students who attend District schools.  Under these circumstances, we would be foolish - and I believe also derelict in our responsibilities - if we didn't consider every possible option for a site for BCS.  The Raynor site happens to be the first available site, so we are moving on that site.  If we had a different relationship with BCS- one based on cooperation instead of litigation- I could envision working closely together to evaluate sites and select one that is workable for the district and that is also appealing to BCS.  Under the current circumstances, though, we would be remiss if we didn't pursue every available option.  BCS can change this equation by dropping the litigation and working with LASD.  If they want to continue to pursue litigation, though, that's the clearest signal they can give that LASD has to find them a site- any site- as fast as we possibly can.