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

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.

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.

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.

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

BCS Appeals Sanctions

2009-10 Attorney's Fees

Wow- a new land speed record.  With the ink barely dry on the discovery order, BCS has already filed an appeal.  Specifically, BCS is appealing the sanctions that Judge Lucas awarded to LASD to cover the costs we had to incur while forcing BCS to comply with the discovery process.  The BCS attorney telegraphed that he expected to appeal this during the Oct 30 hearing, so I can't say I'm surprised-- but I will say that I remain disappointed. 

The sanctions were awarded because the Judge ruled that BCS had no reasonable basis to fight our discovery request.  Indeed, during the "meet and confer" process, LASD had significantly narrowed the scope of what we were requesting, in an effort to make our request as innocuous as possible while still providing us with the information we needed for our defense.  Apparently BCS feels that allowing LASD to defend itself in court is unreasonable, so they've asked the Appellate Court to weigh in.  As I have grown accustomed to saying, I look forward to the judicial review of this matter.


Here is the BCS Notice of Appeal of Sanctions

Judge compells compliance: Sanctions against BCS

2009-10 Attorney's Fees Request

We just received the order from Judge Lucas, compelling BCS compliance with the discovery process and hitting BCS with sanctions in the amount of $51,085.60.

When BCS brought a motion against LASD to demand that we pay their legal fees for the 2009-10 lawsuit, LASD rightly challenged that claim.  The legal process provides that we are entitled to discovery of evidence that might support our defense.  We filed that discovery this past summer, but BCS has been stonewalling and refusing to provide a response.  On Oct 30, 2012, we argued in front of Judge Lucas to compel that discovery.  Today, Judge Lucas ordered BCS to comply with the discovery.  In the grand scheme of legal rulings, compelling someone to comply with discovery is akin to making them look both ways before they cross the street-- everyone knows you're supposed to do it, so it shouldn't surprise if you fight that and lose the argument.  What was interesting was that Judge Lucas also imposed sanctions against BCS.  By law, the sanctions aren't punitive- it's just meant to make sure we don't have to spend money to get what we are legally entitled to get (the evidence we need for our defense).  I'm told by many lawyers, though, that judges rarely hand out sanctions. 

In her ruling, Judge Lucas says, "Petitioner’s argument that the existence of some evidence to support its factual position should preclude discovery is so contrary to the basic purpose of discovery that it is not reasonably asserted. Accordingly, Respondents’ request for monetary sanctions is granted."  One would think that would inspire cooperation, but we'll have to wait and see.

To be fair, folks need to keep in mind the scope of our victory.  We haven't yet defeated the BCS effort to claim $1.3M in legal fees.  We've just forced them to  provide the evidence we need to defend ourselves in the suit.  Still, I'm pleased to see that the Judge has spoken out against their bad behavior.

Here's the full text of the order:
BCS v. LASD Order Granting Motion to Compel

BCS Appeals (Again)

2012-13 Facilities case

I am saddened to report that BCS has filed another appeal.  If this starts to sound convoluted and ridiculous, one could be forgiven for thinking that's part of their legal strategy.

In July 2012, BCS brought a motion before the Superior Court, asking them to use the ruling from the 2009-10 case to find that the 2012-13 offer was improper.  This was a highly irregular move, and the District vigorously contested it at a hearing on August 30, 2012 in front of Judge Lucas.** 

Apparently seeing the writing on the wall after the Aug 30 hearing, BCS did what they should have done at the outset- they filed a new suit, and they did so before Judge Lucas even finalized her ruling form teh Aug 30 hearing.  We had the first hearing for the new lawsuit on Oct 30, and we are currently awaiting a final ruling form the judge on the three issues BCS raised.  The Judge's tentative rulings, though were all favorable to the District. 

Given what seems the likely outcome of the new litigation, apparently BCS has now decided to keep the litigation alive on the other path (which was improper to begin with.)  The Judge issued a ruling in Sept 2012 that said she could not rule on the 12-13 offer under the 09-10 judgement because the facts are all different.  BCS is now appealing that ruling.  It seems crazy to be litigating this on two paths at the same time.  However, it also fits a pattern from BCS to continue to use litigation to try to get the District to simply "cave" and close a high performing neighborhood school. 

I remain disappointed in this behavior.  Litigation is wasteful to begin with.  For BCS to now try to create two paths of litigation in parallel (while apparently not succeeding on either path) is a horrendous waste of taxpayer resources. 

We actually received their Notice of Appeal on November 9th- it has taken me a few days to get this posted.

As is my custom, here is the legal filing:
BCS Notice of Appeal  of Aug 30 Hearing



**Those who attended the hearing might recall the Judge pointing this out to the BCS attorney.  She asked "What am I to make of the additional students [that BCS enrolled in 7th and 8th grade]."  The BCS attorney responded "well, pretend they don't exist for a moment."