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.

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“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

Wisdom from Blach: Pick Yourself

I get the weekly newsletters from each of our schools,  I often admire Sandra McGonagle's take on things.  She either has wonderful original stories, or occasionally finds someone else's inspirational writing to share with the families.  It's a great reflection on where she is as an educator and a leader.  Here's a winner from this week:

Dear Blach Families,

 

Even at this age we have students suffering from “Bat Boy Syndrome”. Seth Godin’s latest blog post on the topic really had me thinking. It’s worthwhile enough to quote the entire short post.

 

“Here's a common fantasy: Your team wins the pennant. It goes on to the World Series. It wins! And you're there for it, all along, the bat boy, helping out the sluggers, doing your job, proximity to greatness.

 

The line to get a job at Disney and Google and Pixar is long indeed. Countless people eager to get picked to join a winning team. Not as the person who is going to have to step up and cause success, no, the opportunity sought is to be on the team, to bask without being asked for heroics (which of course, carry risk).

 

The industrial culture, the resume-building mindset—it's no wonder so many have bat boy syndrome. The alternative, the alternative of picking yourself, is frightening because we've been hoodwinked and brainwashed into believing that it's not up to us. But it is.”

 

Here at Blach we have long lines to get into Leadership, Student Cabinet, sports teams...the list goes on. However, it appears that having the title is enough for many. They don’t want to take the risk, do the work, or put themselves on the line. Only a very few understand that THEY ARE THE GREATNESS.

 

The big question is how to we get more to see that BEING THE GREATNESS is so much better than being the bat boy and that we all have the potential to be GREAT if we believe?

 

Here's to “picking yourself”.

 

Sandra

 

 

Well said, Sandra.  And I love how you're putting that into action at Blach.

 

 

So much for compromise (BCS 2013-14 Litigtion)

2013-14 BCS Complaint, Part I

To borrow a phrase, "so much for compromise". 

The BCS litigation for the 2013-14 school year makes a complete mockery of their $300,000 PR campaign this spring.  They widely touted their willingness to "compromise", and not close an LASD school.  This week, their new attorneys filed a motion for judgement for the first of two causes of action.  The crux of the filing is to claim that the LASD offer is not compliant with Prop 39 because it offers them space on two locations.  They're demanding a contiguous site.  Since we don't have an empty site, that can only mean one thing- closing a high-performing neighborhood school to hand it over to BCS.

The current filing does not ask the courts to rule on part II, their CEQA complaint.  They've reserved that for later.

It's worth noting that the BCS action on this will be led by John Lemmo of Procopio, Cory, Hargreaves, & Savitch, LLP.  How deeply involved Morrison & Forrester will be (and the impact of this change) remains to be seen. 

As is my custom, I'm not going to provide specific commentary on the legal aspects of the BCS argument.  The District will be filing a response in due course, and we'll be in front of the judge quickly.  I am trying to get some clarity on exact dates- I believe this might be in a courtroom in June.  I'll definitely keep folks posted.

Here are the documents.

Memorandum and Points (the actual argument)
Motion for Judgement
Declaration of John Lemmo  
Request for Judicial Notice
Proof of Service

Updated at 1:12pm - Having gotten through some additional emails, it appears that we will be in court on June 20 for this matter.  I'm looking forward to the chance to have the courts hear this issue. 

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.

LASD Responds to BCS Appeal of anti-SLAPP Ruling

In early March, BCS asked the Superior Court to dismiss the district's cross complaint using the anti-SLAPP statue.  Judge Overton rightly ruled that the cross-complaint should not be dismissed, on the grounds that it raises issues of public interest, and therefore is not subject to the anti-SLAPP statue.  (Judge Overton's ruling can be found here).

Right before spring break, we received notice that BCS filed an appeal of Judge Overton's ruling.  We notified them that this is not permissible under the law (See my blog post to discuss this here, including our letter to BCS).  Sadly, BCS has decided not to withdraw their appeal.  The District has therefore been forced to file a response to this illegal appeal by BCS.

In my previous blog post, I mentioned that this was an opportunity for BCS to demonstrate that they really are interested in dialogue, and that they aren't going to file needless litigation.  Indeed, the law specifically bars the action they've just filed.  Many times as an LASD Trustee, I've had BCS parents urge me to "follow the law" when allocating facilities.  I would ask those same folks to please reach out to the BCS board and also urge them to "follow the law".  The statues are unambiguous on this point.  Judge Overton ruled for LASD, and that ruling is not appealable.  Yet here we are, wasting time and money on something that is completely within the control of the BCS Board.

The District's response can be found here:
LASD Motion to Dismiss Appeal of Anti-SLAPP Suit 2013-04-11

(I don't have the exhibits yet, but will add them when I receive them)

Updated 23 April 2013 to add the exhibits.
Exhibits A thru D part I
Exhibits D part II - thru Exhibit I
Exhibit J thru AA

Anti-SLAPP Appeal by BCS

2012-13 Facilities Litigation: anti-SLAPP Motion

Late last week, the District received notice that BCS has decided to appeal the anti-SLAPP ruling.  You'll recall that BCS filed the anti-SLAPP motion back in early December 2012.  (my blog post describing the motion, and all of the SLAPP-related posts).  There was a flurry of filings back and forth, and the courts ruled on this motion in January 2013, declaring that the District was not engaging in an effort to stifle debate, but that we were seeking guidance from the court on an issue of public importance.  At the time of that ruling, BCS elected not to present oral arguments, instead letting the ruling stand.

On Thursday, March 21st, the District received a formal notification of appeal from BCS.  This is all very curious because the legislature specifically prohibits appealing a ruling such as the one we have received.  In an email to BCS counsel, LASD counsel has pointed out that this appeal is unlawful, and has asked BCS to withdraw their appeal.  If BCS does not do so, the District will once again ask the court to impose sanctions against BCS.

There are those who oppose the District's cross-complaint, and I've heard a number of their concerns.  However, the courts have ruled three times now that LASD should be permitted to move forward with the action. 

I'd like to point out that LASD is not required to give this sort of notice to BCS.  We've done it out of a sincere effort to see if BCS is interested in dialing down the rhetoric.  In the bigger debate, there are significant legal issues that we see differently:

• the depth and breath of the discretion afforded to elected officials as they balance the needs of multiple constituencies
• the rights of the public to understand financing behind lawsuits which claim a public benefit
• the responsibility of a public entity to take action based the concerns of citizens who come forward with complaints

Any one of these is an interesting constitutional issue, and will certainly be discussed widely in legal community.  We have enough on our plates without having to deal with this sort of impermissible use of the courts.  The legislature has said this specific type of appeal is not permitted.  It would be good for both sides to simply move forward with the trial.  If BCS is so anxious for everyone to "know the truth", as their attorney pointed out this week, then let's move forward.  Let's not waste money on the appeal of a motion that shouldn't be and can't be appealed.  LASD has taken the high road by informing BCS up front of their error.  Hopefully their legal team will acknowledge this and gracefully step away.  It would be a simple step that places the needs of students ahead of the litigation.  It would be good for all sides.

The lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel

Favorable Ruling on BCS Motion

2012-13 Facilities Complaint; Cross Complaint

I love the power of social media.  This has already been posted on Facebook, but for those who may not have seen it, we received the ruling on BCS' MJOP (Motion for Judgement on the Pleadings).  This motion, heard by Judge Carol Overton on March 5th, sought to dismiss the LASD cross complaint.  This is the third such effort BCS has made.  Like the other two requests (including the anti-SLAPP motion), this was denied.

BCS argued that the District had an obligation to go to the SCCBOE to address our concerns before we filed the Cross Complaint.  The District argued that, since we weren't seeking for the court to change the behavior-- that we are only seeking clarification of whether this imapcts our facilities offers. 

The courts found for LASD- that we don't have to go to the SCCBOE first.  The ruling says, in part:
"LASD seeks guidance as to its own duties under the law with regard to its obligation to share its facilities fairly. Such a request calls on the court to interpret the law as it relates to LASD, not to determine whether Bullis has violated its charter."  That's pretty much it in a nutshell.

The District did seek sanctions, which the court did not grant.  However, the important take-away here is that the cross-complaint is moving forward.  The courts are willing to listen to the community's concerns about BCS admissions practices, and whether they serve all students equally.  Based on that, we'll understand what the impact is to the LASD facilities obligations.

Here's the full text of the ruling:
Order RE: Motion for Judgement on the Pleadings

Back in Court This Week

2012-13 Facilities Complaint and Cross Complaint

This Tuesday morning at 9am we will be back in court again.  BCS has brought a third motion in an attempt to quash a hearing on the District's Cross-Complaint.  (The first two were the BCS anti-SLAPP motion, and the BCS demurrer.  Judge Lucas ruled for LASD on both motions.)

In this motion, BCS has expanded their argument and is telling the court that LASD need to have addressed raised our concerns about their admissions practices and handling of students through the SCCBOE. I would make the observation that LASD, and the parent community, have repeatedly raised these concerns to the SCCBOE, who have taken no action.  In many cases, the responses we have received from the SCCBOE members have been downright hostile.  I would also note that we are not asking the court to take any specific action regarding the practices.  We are simply asking the court whether these practices have any impact on our facilities obligation.

Revisiting the same request (dismissal of the Cross-Complaint) is highly unusual, which LASD has raised in our response.  LASD has asked the courts to sanction BCS for bringing the same motion several times, as this is not permitted under the law.  It is another example of the "litigate at all costs" approach to dealing with LASD.

This will be our first hearing in front of a Judge Carol Overton.  Judge Lucas has rotated to a new assignment, and Judge Overton is now hearing this matter. 

Joan J Strong

I've grown accustomed to strange requests in the BCS litigation.  Recently, though, BCS served the District with Discovery on the attorney fees issue.  One of the questions struck me as highly unusual:  BCS is demanding of LASD to reveal the identity of Joan J Strong.

More accurately, they've asked us to "IDENTIFY the person [we] believe is posting on the Internet under the name "JJ Strong" or "Joan J. Strong" "

Honestly, people:  I don't know who Joan J Strong is.  My fellow trustees have confirmed that they don't know who she is either.  Nor do the superintendent or various other personnel involved in this case.  We provided this information to BCS in our Response to Interrogatories, delivered to BCS on 20 Feb 2013.  Nevertheless, BCS counsel is still harassing our lawyers, demanding further information about how we investigated this question.

Seriously? 

First off, there's a First Amendment issue here.  JJS is entitled to say whatever he or she wants to say.  I have no control over what s/he posts, and frankly it's not my business.  Second, in their failed anti-SLAPP motion last year, they accused LASD of using litigation as a tool to chill public debate.  I can't imagine the purpose of this inquiry, other than to seek to harass the real person being the JJS persona.  And finally, is this really what we have to burn taxpayer funds asking and answering?  Is there no more important issue to discuss?

Regardless, we don't know who Joan J Strong is.  (But if s/he is reading this, s/he can consider herself/himself to have achieved a new level of notoriety.)

Respondents Responses to BCS Special Interrogatories

BCS Defies the Courts (Again)

2009-10 Attorney's Fees

Regular readers will recall that, along with the 2012-13 litigation, we still have another sword hanging over our heads- the BCS motion for attorney's fees in the 2009-10 case.  A quick refresher of that activity:

February 2012:  BCS began threatening that they wanted to collect attorney fees.

July 2012:  BCS files actual demand for $1.3M in fees.

Aug 2012:  LASD files discovery to understand the fee demands. BCS refuses to answer the discovery.

Sept 2012:  During the "meet and confer process", the Judge decides she'll need to hear full arguments on discovery.

Oct 2012:  Oral arguments are heard on the discovery motion.  BCS counsel is defiant during the hearing, despite several cautions from the Judge. 

Nov 2012:  The Judge rules for LASD on the discovery, and grants sanctions of $51,000 for BCS' incomprehensible stonewalling of the discovery process.

Dec 2012:  BCS appeals the sanctions, and the discovery (as closely as they can).  The appeals court returns a ruling in < 48 hours, denying both requests.  BCS attorney calls the sanctions "monopoly money", and insists the District "will never see a dime"

Jan 2013:  District follows up on discovery.  BCS asserts that they have "no documents responsive to the request.

Now at this point, one might wonder why BCS put up so much of a fight.  If they had no documents, it would seem strange to spend a lot of energy fighting the issue. 

Feb 2013:  The reality, though, is that there are documents- but BCS has apparently decided to defy the courts and not produce them.  The District is following up with BCS, and is making clear that we will once again seek sanctions, including "issue sanctions".  (Basically, in addition to reimbursing LASD for the money we've spent forcing them to comply with a court order, the Judge could simply rule in our favor on something, essentially as a penalty for their abuse of the discovery process.)

As always, I've included the complete correspondence.
Letter to BCS counsel
3rd Set of Interrogatories
3rd Set of Request for Production

We've also prepared the documentation to request the actual sanctions.  According to the court rules, we prepare these, but wait to file them later.  Yes, we're following the process, because we intend to follow through and request these sanctions.

Notice of Motion for Monetary Sanctions
POS Motion for Monetary Sanctions

For those who wonder why we can't spend as much time in negotiations, this kind of nonsense is a great example.  Complying with Discovery is one of the most basic things you do in litigation.  Yet BCS has chosen to litigate this issue several times over, fighting LASD every step of the way.  There simply is no justification for it (as evidenced by the sanctions imposed by Judge Lucas, and upheld by the Appellate Court).  When we have to do this sort of work every day, there just isn't much time for anything else.


To see related blog posts, click the "Attorney's Fees" label below.

BCS Presentation on Prop 39 offer

I run a professional services practice in my day job, so I end up negotiating a lot of agreements with clients.  Typically there's a Professional Services Agreement, and a series of Statements of Work that fit under the agreement.  As in any business, we want to have a long term relationship with our clients.

Occasionally when we start the negotiating process, it becomes clear that the parties have very different expectations.  At that point, we have a lot of ground to cover.  If I start lobbing back contract redlines with statements like "you guys are crazy, you don't know what you're talking about", what are the chances that I'm going to come to an agreement with the client?  Even if I do, what are the chances that the next negotiation is going to go well?

This past week, BCS had a Board meeting and they discussed the Prop 39 offer. I've attached the slides presented by one of their Board members, Janet Medlin.  I'm disappointed in the tone of this document.  Frankly, it reads like pre-litigation notes much more than any sort of constructive dialogue.  If someone is genuine in their desire to negotiate, and in a desire to foster better relations, they would moderate what they say.  This document reflects no such moderation.
I have attached the document exactly as I received it from BCS.  The red font, etc. are entirely theirs.

link to BCS presentation

This stands is stark contrast to the pleas from other BCS Board members for constructive discussions.  However, the LASD Board has to deal with both ends of this spectrum.  To those who argue in favor of increased engagement, a gentle reminder that the LASD Board has to deal with this type of discourse also.  Unless this faction of the BCS board can be reigned in, I have little hope for any sort of constructive engagement outside of the courtroom.

In case it needs to be clarified- changing the text of the presentation isn't enough.  What we say is just as important, and it is critical that the entire dialogue be more civil.  There is a recording of the meeting that I'll try to get to post here also.

Case Management Filings

Today both sides filed Case Management paperwork.  I don't pretend to know all of the nuances, but in the spirit of transparency, I've posted the docs for both sides.

The key issue is that the case may transition to Judge Overton from Judge Lucas.  Judge Lucas is rotating to new responsibilities within the same court, and so the case may be shifted to Judge Overton.  However, Judge Overton also may decide that the case is complex and nuanced, and that Judge Lucas has the best handle on it.  So we'll wait and see what happens.

BCS Case Management Filing

LASD Case Management Filing

BCS Preliminary Facilities Offer

(Note: This letter went to all LASD parents and those who subscribe to our email list.  It includes a letter I sent to Ken Moore regarding the facilities offer that the District will deliver this week.)

Dear Parents, Guardians, and Community Members-


Last night at a Special Board Meeting, the LASD Board of Trustees instructed staff to deliver a preliminary facilities offer to BCS for the 2013-14 school year. The Prop 39 process provides for the District to make the preliminary offer, for BCS to respond with objections by March 1, and for the District to provide a final offer by April 1. This is the same process we follow every year.

Prop 39 requires the District Trustees to balance the needs of all students. Our offer to BCS this year proposes that their K-5 students be located at Egan, and their 6-8 students would be at Blach. In practical terms BCS would have about 40% of the students on the Egan campus, and about 40% of the land. Similarly, they would have about 20% of the students at Blach, and 20% of the land. However, Blach will also be impacted further because we are required to provide specialized teaching space to Jr High students. Principal Sandra McGonagle and her staff have worked with the administration to rework the Blach schedule to ensure reasonably equivalent access to the Specialized Teaching Space for BCS students while trying to minimize the impact on our own students. We have asked Principal McGonagle to reach out to BCS Principal Wanny Hersey to have a tactical discussion to review the sharing arrangements as proposed in the offer. We will consider that feedback as part of the final offer we present on April 1.

BCS held a PR event last week where they announced their willingness to accept a split between Egan and Blach. We are pleased that they are demonstrating an understanding of the need to balance the needs of all students. They have also acknowledged our requirement that all board-level discussions of the facilities offer be held in public, so that the community can observe the process. The LASD Board remains committed to transparency of this process, as we have done throughout the year. They also requested a whole series of Board-level meetings to discuss the offer. At this time, the LASD Board is planning to hold a Special Meeting on Feb 25th, and we may consider a further meeting in March.

The District cannot afford to spend as much time as BCS requests in meetings since we already are spending an inordinate amount of time dealing with the multiple lawsuits brought by BCS. BCS continues to litigate every issue and sub-issue within the 2012-13 offer, despite having lost every action they've brought in the past year. The courts have consistently recognized that the LASD Board is properly balancing the needs of all students. There are only so many hours in the day. LASD runs one of the leanest administrations in California. We rightly focus our resources in the classroom where they belong. In order to prepare the Prop 39 offer, we already divert tremendous resources to analyze possible scenarios and weigh the impacts. Couple that with the need to perform basic functions to continue to run a district that educates 4,500 students, and there simply isn't any additional time in the week to add another series of meetings. Said another way, we are already meeting with BCS several times per week to discuss facilities issues. It is unfortunate that BCS has decided that those meetings should be managed by the attorneys and held within the framework of the judicial process. I continue to call upon BCS to put a freeze on the litigation so that the hundreds of hours we spend each week on BCS issues can be spent more constructively engaged in a more respectful, solutions based dialogue.

I look forward to your continued input at the Board meetings.

Best Wishes,

DJS    

(Link to the attached letter that I sent to Ken Moore)          

Update @ 10pm.  Someone contacted me and asked me to publish Ken's letter, to which this responds.  Here is the letter and here is the presentation they used at their PR event.

Next steps: BCS Offer Process

Last night the Board met in a regular meeting to discuss the BCS preliminary offer for 2013-14.  LASD Asst Supt. Randy Kenyon worked with a wide range of people within the district to evaluate 4 potential configurations for BCS.  That analysis can be found here: (link to presentation)

After Mr. Kenyon's presentation, we heard from the principals at Covington, Blach, and Egan.  Each of them expressed that they're willing to do whatever is necessary to accommodate BCS, but also expressed concern for their students and the impact that the BCS program continues to have on our own students.

We invited the BCS Board to participate, but they've chosen to wait until we have a preliminary offer to discuss in more detail.  We also invited the BCS PTA, and they did come and provide input.  We heard from the PTA presidents from Egan, Blach, and Covington, as well as ~50 community members. 

There appears to be wide support for a 10th site, but also an acknowledgement that it would be difficult to get a 10th site live by the end of this school year.  In the end, the Trustees decided that we don't believe there will be a 10th site in time for the start of school this fall, so that's not a viable option for this year.  However, we reaffirmed our desire to find a 10th site.

We also had considerable discussion about Covington.  That site has a thriving school community, and it simply isn't rational to close a high performing neighborhood school to accommodate BCS if there are other options available to us.  Additionally, it would cost in the neighborhood of $1m to relocate portables to redistribute those pupils to other parts of the district, so it's not exactly an economical option.  Perhaps most important, it would have a huge negative impact on the special needs students that come from all over the district to attend classes at Covington.  Those pupils are among our most vulnerable.  Asking them to change schools and to uproot their program and impact all of the progress they've made does not make sense.

We considered whether we would need to spread BCS across three sites instead of just two sites.  While this option does "share the pain", it creates additional issues for BCS and for LASD students.  So far we haven't been very successful in "getting along" at our shared facilities.  There have been a number of concerns and issues that keep cropping up.  Trying to make that work at a third site isn't attractive. It is worth noting that this was the least supported option during the community input throughout our process, including both last night and during the facilitated discussions in December.

That left the Board with the Egan/Blach split.  We have asked Staff to consider three possible scenarios: 

Egan: K-3, Blach 4-8
Egan K-4, Blach 5-8
Egan K-5, Blach 6-8

We are quite concerned about the total number of students BCS is projecting, and we're looking to balance the impact across the two campuses.  Part of that depends on the numbers of students, and part of the facilities they require.  We'll have to see what staff brings back to the Board at the end of the month.

Based on the discussion, I expect that we'll invite BCS to participate in some sort of study session in February.  Historically meetings between our respective Prop 39 teams have been relatively low key, and they were not publicly noticed meetings.  This year, I believe we will hold a formal study session, and the meeting will be open to the public to attend.  I feel very strongly that we need to be completely transparent with our process.  If we do hold this meeting as a study session, we will not accept public input during that portion of the meeting.  However, rest assured that we will continue to seek public input throughout the facilities process.

It's worth reminding folks that the study session will likely go through a litany of "wants" from BCS.  They'll raise concerns about various aspects of the offer.  For example, I heard from a reporter today who'd spoken with BCS about the current facilities offer (2012-13).  BCS apparently complained to her that the restrooms at Blach are too far away from their classrooms.  While we will carefully consider each issue BCS raises, it still is up to the discretion of the Board as to how to craft the final offer.  We will weigh the totality of the offer, not just look at each individual part.  The restrooms might not be exactly where they want, but they may have more classroom space than their peers at LASD.  They might not have first pick of when they get access to the science lab, but we might allow them to include their 6th graders in the PE space.  The standard used to evalute the offer is "reasonably equivalent", not "exactly as requested".  The LASD Board will be balancing the impact of the BCS request against the needs of the LASD students who attend our own schools.  BCS students represent about 10% of all students within our boundaries (not 20% as stated last night).  The needs of all 5000 students need to be balanced as we consider how we will meet our facilities obligations.

I would encourage the public to remain engaged in this discussion as we move forward.  At the Board meetings, we tend to see a large number of parents from a specific site.  One week it's Egan, the next week it's BCS, and then it's Covington or Santa Rita.  Maybe we've hit the right balance when we have an equal number of parents from all 10 schools showing up at the Board meetings?  Seems unlikely, but one can hope.  Until then, though, I appreciate those who came out, those who spoke, and particularly those who added to the discussion with positive suggestions. 


One final point:  Last night I talked about the need for BCS to step back from the litigation.  I believe it will be hard for the community to support a 10th site until we are able to work together.  The District Board is elected by the people of our community to oversee the schools and facilities.  If BCS would like to have more input to the process, and perhaps seek a solution other than those that are on the table right now, I'm open to that dialogue.  However, given the pace of the litigation, it seems impossible to contemplate slowing down on any viable option for a BCS location.  If that means we end up "solving" this with a site that BCS isn't thrilled with, it will be a direct result of their Board using the courts to drive home the urgency of solving the issue.  I'm willing to consider other options, but the message they are sending today is "close a school, and do it now", and that's not something I'm willing to do.  I look forward to working with BCS, including their new board member Joe Hurd, to address the needs of all students in our community.

BCS Response to Cross Complaint

As someone wise recently told me, "the Grinch never sleeps."  Over the holidays, we received plenty of legal  paperwork from BCS.  I'll try to hash it all here. 


In their response, BCS not surprisingly says that the allegations raised by the District aren't true, and that even if they are true, BCS says it shouldn't impact their facilities allocation.

I won't get into chapter-and-verse of our legal argument, but the BCS demurer shows a frightening lack of understanding of what a public school is all about.  If public schools are free to discriminate against students they don't wish to educate, the entire system will fail.  Public schools don't exist to educate an aristocracy- they exist to educate the entire citizenry.  Jefferson would be spinning in his grave at the positions BCS takes here.

BCS reply in support of demurrer to FACC


The District recently responded to the BCS anti-SLAPP suit (as posted here).  BCS gets one more bite at the apple before we go to court next week.  Here is their response:

BCS Reply in support of  BCS anti-SLAPP


As an added bonus, BCS has also objected to the amicus submission made by Huttlinger.  This seems to go with the theme of quashing debate and shutting out voices that speak in opposition.  Ironic, given their attempts to misuse the anti-SLAPP statues.

BCS Objection to Huttlinger


I'll try to update this post with the various supporting documents, but they came via email in a widely scattered group. 

The next important date is January 8th, 2013.  We will be in front of Judge Lucas again, discussing the BCS anti-SLAPP motion and various other matters.  More to come, I'm sure...

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 NoLo.com, 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.

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...

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

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

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 dsmith@lasdschools.org, and I welcome all constructive comments and suggestions for a path forward.



Sincerely,


Doug Smith
Vice President, LASD Board of Trustees