Facilities Allocation and BCS "Fab Lab"

I received a thoughtful question from a commuity member recently.  With his permission, I'm publishing the question because I think it is of interest to a nubmer of folks.

You probably heard about the "FabLab" that BCS plans to establish next school year.


I was wondering how adding new specialized space plays with Prop 39:

- If LASD had been first to open a FabLab, would it had been obligated to inventory it under Prop 39 rules... and then share it (or duplicate it if sharing is not practical) with BCS?

- If LASD followed suit and opened a FabLab after BCS did, would it have the same Prop39 requirement for inventory and share/duplicate (even if BCS already had its own FabLab)?

- Would it be any different if LASD's FabLab was procured via the PTAs, LAEF or a generous donor?

And I guess that, there is no requirement under Prop39 for BCS to share or even inventory that FabLab, regardless how that space is funded?

Here is my response:

This is part of what the cross-complaint asks the court to address. "Does the District have a right to consider the impact of BCS' private fundraising when allocating facilities?"


The regs deal first with classroom space and real estate. There is a follow-on treatment of equipment that also applies.

If we have building space allocated for a particular purpose, and we have it on only one site, the regs are pretty clear we don't have to make it available to BCS. We would argue that not every student has access to that space. However, if all of our students in a particular grade level have access to something (i.e. a gymnasium) then we have to make the same facilities available to BCS. It is important that we consider this in the totality of the offer, though. "Reasonably equivalent" means that we balance the totality of the offer, not just individual components.

When it comes to the equipment, it generally follows the same path. If we have a fully equipped science lab on most or all of our sites, we make the same equipment available to BCS also. If the District built a large capital project like the fab lab, (and we built one on both Egan and Blach, for example) we would have to make the same equipment available to BCS.

We share any equipment purchased with public funds. However, the law permits us to exclude equipment or facilities purchased with private donations. For example, schools have desks and book shelves, and those were purchased with public funds, so we share them with BCS. On the other hand, the PTA's purchase nearly all of the computers and iPads we use. (Others have been donated privately to the schools). Since they were privately financed,we do not need to purchase computers for BCS.

I'm not aware of any specifics in the law that might allow us to approach BCS and require that they share their privately acquired facilities with LASD students. But to be candid, I haven't spent a lot of time looking at it. It is one of the questions raised by the Appellate judges during oral arguments a little while back. However, they didn't address it in their ruling. Up until now, the only capital equipment BCS has procured has been their MPR. That building is still subject to LASD regulations, since it is located on District land. Whether the District should pursue this with respect to the Fab Lab hasn't really crossed my mind until now. I generally think of it as being part of the overarching question of the cross-complaint.

It is worth pointing folks, once again, to the disclaimer at the right side of this page.  This is my personal opinion, and not a substitute for board policy or action.  Nothing here precludes board action in any way, nor binds us to a particular position.  But it's worth sharing my thoughts anyway...

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.

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.

Favorable Ruling on BCS Motion

2012-13 Facilities Complaint; Cross Complaint

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

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

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

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

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

Back in Court This Week

2012-13 Facilities Complaint and Cross Complaint

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

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

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

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

Thoughts On Being a Public School

Several months ago, the District field a cross complaint, asking the courts to evaluate whether BCS is truly a public school.   BCS has ridiculed the cross complaint, both in the press and in front of the courts.  At the core of the cross complaint, we've said they behave more like a private school than a public school.  This isn't meant to be a derogatory statement- our community has many private schools, and they seem to do a good job of educating students.  However, they aren't bound by the same rules that public schools are bound by- they can choose what students they accept, they are free from many of the obligations of public schools.  Let's step away from the heated discussion for a moment, and consider a simpler example: public meetings.

Because LASD is a public school district, we conduct our meetings under the Brown Act.  BCS has said that they follow the Brown Act.  Wanny Hersey has asserted this in communications with me and with the SCCBOE, including this instance, from an exchange in Dec 2011 where she also derides LASD for an unspecified Brown Act violation.  So let's look at this a bit deeper.

LASD does our best to follow not just the letter of the Brown Act, but the spirit of the law also.  I've personally been involved in discussions where we chose to delay meetings rather than utilize the "short notice" provisions under the Act.  We ensure the public has a place to wait while we meet in closed session, and when we anticipate a large crowd, we hold the meeting in an appropriate venue.  We also ensure that we receive public input before closed session, and report out any actions taken.

By contrast, I've seen several instances where BCS has either explicitly violated the Brown Act, or has skated dangerously close to doing so.  Some examples:

BCS posted a meeting notice stating that their meeting would be held Nov 6, 2012.  I found that odd, since Nov 6 was election day.  I snapped a photo of the notice as posted on the evening of Nov 4th.  When BCS apparently recognized the mistake, they simply changed the date on the agenda they emailed out on November 5th.  The minutes from that meeting - held November 5th- can be found on the BCS web site here.  The first part was likely an honest clerical error, but someone recognized the error before the meeting was held.  Rather than delay the meeting, they moved forward with a meeting that was not noticed to the public.

In May 2012, during a particularly contentious period, LASDVoices was regularly attending BCS Board Meetings.  Here is the report of one member of that group (in an email to the SCCBOE) about how the "report out from closed session" was handled.  In a nutshell, the email suggest that the "report out" was never made, or was done so in a manner that seems intentionally designed to deprive the public of knowing what happened.

Today, BCS held a meeting at the Gordon and Betty Moore foundation offices in Palo Alto, which puts them about 4 miles from BCS/Egan, and are definitely outside District Boundaries.  I don't know whether BCS is compliant with the "meet within the jurisdiction" requirement based on the fact that they are chartered with the County.  However, is it that difficult to find meeting space within the District's boundaries, so that community members can attend? 

I've also previously blogged about my experiences with BCS Board members when I recorded their board meetings, also explicitly permitted under the Brown Act.  Board member Janet Medlin took strong exception to my efforts, and also strongly criticized me for publishing the sworn deposition of a BCS Board member. 

During today's meeting, BCS Board Member Janet Medlin once again took me to task, it appears, for how I've insisted that the BCS facilities meetings this year be very public.  She posted part of an email exchange wherein she agreed with my request for public meetings, and implied to the public that she'd initiated the discussion.  I don't care about who gets credit, but I do care a lot that in that same exchange, she was arguing in favor of a "pre-meeting", a meeting over the weekend in advance of the LASD Board meeting.  I don't know how she thought that her proposal kept with my requirement that the meetings be public, but it certainly didn't come out in the full email exchange. 


So What?
To borrow a now famous phrase, "so what?"  These seem like small, innocuous things.  When it comes to serious matters of law, the general public might call these "technicalities" and accuse me of being overly pedantic.  That's part of the point, though.  The law *is* pedantic.  It demands that we follow it at all times.  LASD has a culture of understanding the legal requirements and following them in all aspects of how we conduct ourselves, from the largest matters of what students we educate down to the little things like how we post notice of our meetings.  If we educated 98% of our students in accordance with the law, there would still be nearly 100 children deprived of their rights to a public education.  To me, that isn't acceptable.

I work in private industry during the day.  I'm used to calling meetings on a split second notice, and reacting quickly to the situation.  As a public official, though, I have to be more measured.  I have a responsibility to the public, and part of that means ensuring the public can participate in the process.  I highlight this because I'm not convinced that all members of the BCS Board fully understand what it means to be a public entity.  Some BCS Board members (and especially their attorney) have scoffed at the District's allegations.  I'm not saying that all of these incidents were born out of ill intent.  However, I do think that some members of the BCS Board haven't fully internalized what it means to be a public entity, and to accept taxpayer funds.  It's easy to overlook the details, but it's not fair to say that the details don't matter.  The details do matter, because every child is entitled to a great public education- even the ones that don't attend a charter school.

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