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.
Showing posts with label 2012-13 Complaint. Show all posts
Showing posts with label 2012-13 Complaint. Show all posts
Tuesday, July 16, 2013
Sunday, June 9, 2013
Win at the Court of Appeals
Last fall, the lead attorney for BCS mocked the Superior Court judges, saying that they just don't have the time to study complex issues and that they generally don't understand cases like the ones we are involved in. Given the BCS willingness to run to the appellate courts, it seems that they've viewed the 2009-10 case as the sign that teh appellate courts are "in the BCS camp".
Back in December 2012, the Appellate court took just days to rule against BCS on one of their appeals. (link)
More recently, (this past week), the District was pleased to have the Appellate Courts dismiss the BCS appeal in the Anti-SLAPP case. Recall that BCS brought an anti-SLAPP motion against LASD in an attempt to kill the District's cross-complaint. By filing the anti-SLAPP, and by appealing when they lost at the trial court, BCS was holding at bay any legal discovery activities that might otherwise proceed. Now that BCS has lost their appeal, LASD will be able to move forward with discovery.
The Cross Complaint is an important action because it asks the courts to examine BCS admissions practices and their treatment of certain student groups, and asks the court to then determine whether those actions should impact LASD facilities allocation to BCS. Now that the roadblocks are cleared, we'll begin the important excavation work that is necessary to pull together the information we need to put before the court.
I have no illusions that the Cross-Complaint is moving swiftly to trial. BCS has, in the recent past, defied Discovery, and has been sanctioned by the courts for their behavior. (They've appealed those sanctions too, so we'll have to wait and see what happens there.) However, clearing these roadblocks is important- we need to move forward and get clarity from the court on the questions we've raised.
Regardless of what BCS attorneys seem to think of the trial courts, the Appellate Courts seem to think they've been "getting it right", because they have affirmed their decisions.
Back in December 2012, the Appellate court took just days to rule against BCS on one of their appeals. (link)
More recently, (this past week), the District was pleased to have the Appellate Courts dismiss the BCS appeal in the Anti-SLAPP case. Recall that BCS brought an anti-SLAPP motion against LASD in an attempt to kill the District's cross-complaint. By filing the anti-SLAPP, and by appealing when they lost at the trial court, BCS was holding at bay any legal discovery activities that might otherwise proceed. Now that BCS has lost their appeal, LASD will be able to move forward with discovery.
The Cross Complaint is an important action because it asks the courts to examine BCS admissions practices and their treatment of certain student groups, and asks the court to then determine whether those actions should impact LASD facilities allocation to BCS. Now that the roadblocks are cleared, we'll begin the important excavation work that is necessary to pull together the information we need to put before the court.
I have no illusions that the Cross-Complaint is moving swiftly to trial. BCS has, in the recent past, defied Discovery, and has been sanctioned by the courts for their behavior. (They've appealed those sanctions too, so we'll have to wait and see what happens there.) However, clearing these roadblocks is important- we need to move forward and get clarity from the court on the questions we've raised.
Regardless of what BCS attorneys seem to think of the trial courts, the Appellate Courts seem to think they've been "getting it right", because they have affirmed their decisions.
Thursday, April 11, 2013
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
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
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
Tuesday, March 26, 2013
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 lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel
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
The lawyers in the crowd will want to read the email, linked here
Email to BCS Counsel
Thursday, March 21, 2013
Kicked out of BCS
This evening, BCS held a meeting to discuss the 2012-13 litigation. They had
their attorney, Arturo Gonzalez, come and present his thoughts on the
litigation. There was an invitation sent around addressed to "parents and
community". A couple of people mentioned it to me, so I thought that I would
attend to see what he had to say. I'm a big believer in listening. If you get
your news only from one source, your view can get biased. I thought that by
attending this meeting, I could hear the unvarnished version from BCS and see if
there were any new facts I hadn't considered.
Unfortunately, it never got to that point. A BCS Board Member "asked" me to leave. Their Principal said that it was within her authority to have me arrested. I tried to persuade them to let me stay, and to listen. I have attended numerous meetings at BCS before, and it has never been a problem. I promised that would not disrupt the meeting, or even ask a single question. They were not to be swayed. The BCS Board member harassed and threatened me and said I had no business at the meeting.
In the long run, I wasn't there to create a problem. I just wanted to listen. At some point, though, you cut your losses. When I felt like there was no hope, I left. I was polite through the entire episode, but I was also unambiguous- I wasn't leaving voluntarily.
Inside the meeting, their attorney was telling folks to let other LASD parents stay. He is quite convinced that the facts are on his side, and that rational people will be persuaded by logic and facts and truth. Ironically, I agree with him that it is important to hear all of the facts, which is why I was there in the first place.
I can't imagine barring a community member from a meeting at an LASD school, especially not one that involves such an important issue. Last spring, I went to many LASD schools to discuss the proposed mediation settlement. There were BCS parents in the audience, but I didn't mind. If people want to hear what you have to say, why wouldn't you welcome them? If the facts are on your side, why wouldn't you want someone to hear those facts? Shouldn't those facts be out for everyone to consider?
I want to acknowledge that there were some BCS parents in the room who stood up for the LASD parents who also attended. They encouraged the open dialogue, and I applaud them for it. By that point in the discussion, I'd already been chased out, but I'm glad that some members of the community were able to stay, and I congratulate the BCS folks who were willing to rise above the chaos.
I've been taking a pounding lately from some BCS supporters who keep calling for more meetings and increased dialogue. Yet, on this occasion, when all I wanted to do was listen (and even their attorney said he was fine with me being there), I was chased away. More's the pity.
Unfortunately, it never got to that point. A BCS Board Member "asked" me to leave. Their Principal said that it was within her authority to have me arrested. I tried to persuade them to let me stay, and to listen. I have attended numerous meetings at BCS before, and it has never been a problem. I promised that would not disrupt the meeting, or even ask a single question. They were not to be swayed. The BCS Board member harassed and threatened me and said I had no business at the meeting.
In the long run, I wasn't there to create a problem. I just wanted to listen. At some point, though, you cut your losses. When I felt like there was no hope, I left. I was polite through the entire episode, but I was also unambiguous- I wasn't leaving voluntarily.
Inside the meeting, their attorney was telling folks to let other LASD parents stay. He is quite convinced that the facts are on his side, and that rational people will be persuaded by logic and facts and truth. Ironically, I agree with him that it is important to hear all of the facts, which is why I was there in the first place.
I can't imagine barring a community member from a meeting at an LASD school, especially not one that involves such an important issue. Last spring, I went to many LASD schools to discuss the proposed mediation settlement. There were BCS parents in the audience, but I didn't mind. If people want to hear what you have to say, why wouldn't you welcome them? If the facts are on your side, why wouldn't you want someone to hear those facts? Shouldn't those facts be out for everyone to consider?
I want to acknowledge that there were some BCS parents in the room who stood up for the LASD parents who also attended. They encouraged the open dialogue, and I applaud them for it. By that point in the discussion, I'd already been chased out, but I'm glad that some members of the community were able to stay, and I congratulate the BCS folks who were willing to rise above the chaos.
I've been taking a pounding lately from some BCS supporters who keep calling for more meetings and increased dialogue. Yet, on this occasion, when all I wanted to do was listen (and even their attorney said he was fine with me being there), I was chased away. More's the pity.
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
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
Sunday, March 3, 2013
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.
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.
Wednesday, February 27, 2013
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
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
Monday, February 4, 2013
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
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
Monday, January 7, 2013
No Court Tomorrow
2012-13 Complaint: Cross-Complaint and Anti-SLAPP
If you were planning on coming to the court hearing tomorrow, you can make other plans.
Judge Lucas handed down a tentative ruling today at about 2pm. (We're item 5 on the list, starting on page 11.) The ruling is generally favorable for the District- she declined to dismiss the cross-complaint, and ruled against BCS in the issue of the demurrer.
We received a phone message late this afternoon indicating that BCS will not appear to contest the tentative ruling. Thus, no day in court tomorrow. As we get a date for the actual trial related to the cross-complaint, I'll be sure to post it here.
I'm certainly glad that this appears to have gone our way. My only disappointment is that we had to spend the money on things like this in the first place.
This ruling is tentative, and Judge Lucas may update it if she so chooses. I'll be sure to post the final ruling here when it is released.
If you were planning on coming to the court hearing tomorrow, you can make other plans.
Judge Lucas handed down a tentative ruling today at about 2pm. (We're item 5 on the list, starting on page 11.) The ruling is generally favorable for the District- she declined to dismiss the cross-complaint, and ruled against BCS in the issue of the demurrer.
We received a phone message late this afternoon indicating that BCS will not appear to contest the tentative ruling. Thus, no day in court tomorrow. As we get a date for the actual trial related to the cross-complaint, I'll be sure to post it here.
I'm certainly glad that this appears to have gone our way. My only disappointment is that we had to spend the money on things like this in the first place.
This ruling is tentative, and Judge Lucas may update it if she so chooses. I'll be sure to post the final ruling here when it is released.
Wednesday, January 2, 2013
BCS Response to Cross Complaint
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...
Wednesday, December 19, 2012
District Response to BCS anti-SLAPP motion
In the continuing saga of the 2012-13 complaint, BCS has filed an anti-SLAPP motion against LASD. I have mentioned the SLAPP suit in letters to parents, but it worth highlighting here what the suit is and what they seek to do.
A SLAPP suit is a Strategic Lawsuit Against Public Participation. This is generally when someone uses litigation as a tool to force someone to stop raising difficult issues. The California Legislature has created an "anti-SLAPP statute"- basically, a law making it illegal to bring SLAPP suits, and giving people who are targeted by such suits a way to get the SLAPP suit thrown out.
A casual reader could be forgiven for thinking I was describing BCS as the aggressor. In fact, that is how the law is intended to be used. However, in this case, BCS has actually alleged that LASD is the aggressor, and that our counter-complaint is really just an attempt by the District to hurt them. Nothing could be further from the truth.
LASD has brought this counter-suit because many community members have raised issues with us, and we feel obliged to place those concerns before the court. We do not do this lightly, but we feel that the issues are serious, and merit the review of the court. We are asking the court for clarification of our obligations under Prop 39 if the allegations raised by members of the public are, in fact, true.
You can read about the BCS anti-SLAPP suit here, in an earlier blog post. (includes all documentation).
Today, the District filed our response to this frivolous suit. In our response, we've highlighted a couple of key issues. First, the anti-SLAPP statue specifically permits entities such as LASD to bring these kinds of issues forward on behalf of the public. Second, there are considerable legal cases on record already that deal with this, that BCS has neglected to address. We have asked the court to award fees and costs, as we believe the BCS anti-SLAPP suit to be completely without merit.
Again, we look forward to hearing from the court on this matter.
LASD Opposition to Special Motion to Strike
Decl. of Ray Cardozo
Decl. of Doug Smith
Decl. of Adam Forest (part 1 of 3)
Decl. of Adam Forest (part 2 of 3)
Decl. of Adam Forest (part 3 of 3)
Joint Stip. to Extended Pages
POS of Opposition to anti-SLAPP
A SLAPP suit is a Strategic Lawsuit Against Public Participation. This is generally when someone uses litigation as a tool to force someone to stop raising difficult issues. The California Legislature has created an "anti-SLAPP statute"- basically, a law making it illegal to bring SLAPP suits, and giving people who are targeted by such suits a way to get the SLAPP suit thrown out.
A casual reader could be forgiven for thinking I was describing BCS as the aggressor. In fact, that is how the law is intended to be used. However, in this case, BCS has actually alleged that LASD is the aggressor, and that our counter-complaint is really just an attempt by the District to hurt them. Nothing could be further from the truth.
LASD has brought this counter-suit because many community members have raised issues with us, and we feel obliged to place those concerns before the court. We do not do this lightly, but we feel that the issues are serious, and merit the review of the court. We are asking the court for clarification of our obligations under Prop 39 if the allegations raised by members of the public are, in fact, true.
You can read about the BCS anti-SLAPP suit here, in an earlier blog post. (includes all documentation).
Today, the District filed our response to this frivolous suit. In our response, we've highlighted a couple of key issues. First, the anti-SLAPP statue specifically permits entities such as LASD to bring these kinds of issues forward on behalf of the public. Second, there are considerable legal cases on record already that deal with this, that BCS has neglected to address. We have asked the court to award fees and costs, as we believe the BCS anti-SLAPP suit to be completely without merit.
Again, we look forward to hearing from the court on this matter.
LASD Opposition to Special Motion to Strike
Decl. of Ray Cardozo
Decl. of Doug Smith
Decl. of Adam Forest (part 1 of 3)
Decl. of Adam Forest (part 2 of 3)
Decl. of Adam Forest (part 3 of 3)
Joint Stip. to Extended Pages
POS of Opposition to anti-SLAPP
Tuesday, December 18, 2012
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.
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.
Monday, December 10, 2012
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
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
Monday, December 3, 2012
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
#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
Friday, November 30, 2012
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
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
Monday, November 26, 2012
Court Rules for LASD in 2012-13 Case
Today LASD received a favorable ruling from the Superior Court on the writ BCS sought related to their 2012-13 facilities. The courts upheld District actions on all three counts, which is fantastic news. BCS sought three actions from the Court, and all three were denied:
We often hear from certain BCS supporters that LASD is abusing the court system to try to deny them adequate facilities, yet the judicial record tells another story. Last week the courts sanctioned BCS for their refusal to produce documents in their attorneys' fee suit. Earlier this year, the courts ruled against BCS when they tried to end-run the District's authority to allocate facilities. Today's rulings confirm that LASD is taking the proper steps and following the law in how we allocate space amongst the 10 school programs running in our community. In fact, LASD has prevailed in 7 of the last 8 court cases, dating back to 2004.
I have said all along that I look forward to receiving clarity from the courts to confirm that the steps we are taking are permissible. Today I am grateful for that clarity once again. It is unfortunate that we have to keep doing this over and over. I look forward to working with the community to solve this issue once and for all.
Here is the complete ruling from Judge Lucas:
Order Denying Petition for Writ of Mandate
- BCS sought to compel LASD to accept their enrollment forecast for 7-8 grade students. The courts ruled that LASD is not precluded from using our reasonable judgement when we consider student enrollment projections.
- BCS sought to displace Egan students so that BCS students could use the City Gym. The courts ruled that LASD had rightly weighed the impact on Egan students, and provided different multi-purpose space for BCS. (See my blog post from August 2012 explaining this issue). The Court also said we could not be compelled to provide gym space for their K-6 students when LASD K-6 kids don't have access to a gym.
- BCS asked the Court to order LASD to produce an inventory of all furniture and equipment at every school. The Courts rightly recognized that LASD has tried to work with BCS to ensure that they had reasonably equivalent equipment and furniture, but that BCS was trying to take this issue straight to court instead of working with LASD locally.
We often hear from certain BCS supporters that LASD is abusing the court system to try to deny them adequate facilities, yet the judicial record tells another story. Last week the courts sanctioned BCS for their refusal to produce documents in their attorneys' fee suit. Earlier this year, the courts ruled against BCS when they tried to end-run the District's authority to allocate facilities. Today's rulings confirm that LASD is taking the proper steps and following the law in how we allocate space amongst the 10 school programs running in our community. In fact, LASD has prevailed in 7 of the last 8 court cases, dating back to 2004.
I have said all along that I look forward to receiving clarity from the courts to confirm that the steps we are taking are permissible. Today I am grateful for that clarity once again. It is unfortunate that we have to keep doing this over and over. I look forward to working with the community to solve this issue once and for all.
Here is the complete ruling from Judge Lucas:
Order Denying Petition for Writ of Mandate
Thursday, November 15, 2012
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."
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."
Wednesday, October 17, 2012
Follow-up LASD filing
A quick update on the 2012-13 litigation:
We asked BCS to produce a number of documents related to their use of Blach as part of the process of drafting our motion. We received about 200 BCS internal emails the night before our filing was due, and so they weren't directly incorporated in the filing we made last week. However, as we read through them, there were a few that were worth pointing out to the court. Once again the legal team has done a great job of distilling down the key facts. Aside from the legal aruments raised, I'd like to point out a few things here:
1) The back-and-forth between BCS staff with respect to the county board shows what I can only describe as chutzpah. Their lack of regard for the county is evident in the banter over a simple inquiry. Of course, the fact that they don't want to honestly answer the question just goes to prove the District's point about the facilities use.
2) There are also emails between BCS staff and board about their furniture needs for Blach. As we've told people publicly, BCS was stonewalling the District on their needs, and eventually used that as an opportunity for a photo op to try to make LASD look bad. This kind of behavior is unproductive, and it's disappointing to see the lengths they went to (incl. taking action that effectively denied their own kids facilities by stalling against LASD requests.)
None of it is earth-shattering, but it certainly does illustrate the points well enough. Just 13 days to the hearing...
Stipulation to file
Supplemental Brief
Decl. of Shively
We asked BCS to produce a number of documents related to their use of Blach as part of the process of drafting our motion. We received about 200 BCS internal emails the night before our filing was due, and so they weren't directly incorporated in the filing we made last week. However, as we read through them, there were a few that were worth pointing out to the court. Once again the legal team has done a great job of distilling down the key facts. Aside from the legal aruments raised, I'd like to point out a few things here:
1) The back-and-forth between BCS staff with respect to the county board shows what I can only describe as chutzpah. Their lack of regard for the county is evident in the banter over a simple inquiry. Of course, the fact that they don't want to honestly answer the question just goes to prove the District's point about the facilities use.
2) There are also emails between BCS staff and board about their furniture needs for Blach. As we've told people publicly, BCS was stonewalling the District on their needs, and eventually used that as an opportunity for a photo op to try to make LASD look bad. This kind of behavior is unproductive, and it's disappointing to see the lengths they went to (incl. taking action that effectively denied their own kids facilities by stalling against LASD requests.)
None of it is earth-shattering, but it certainly does illustrate the points well enough. Just 13 days to the hearing...
Stipulation to file
Supplemental Brief
Decl. of Shively
Saturday, October 13, 2012
A favorable ruling for LASD
One follow-up to my earlier post about the District's cross-complaint.
There was a ruling issued in Los Angeles yesterday that addresses some of the key questions of the LASD/BCS case. In particular, the appellate ruling says that:
(Link to LAUSD ruling)
There was a ruling issued in Los Angeles yesterday that addresses some of the key questions of the LASD/BCS case. In particular, the appellate ruling says that:
- Local elected officials and the community have a right to manage their resources locally, and the courts should generally defer to their judgement
- Prop 39 does not grant charter schools their "first pick" of the District facilities
- In allocating facilities, the District is entitled to consider the impact on ALL students, and does not need to put charter school children ahead of traditional in-District students.
(Link to LAUSD ruling)
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