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.

Anti-SLAPP Appeal by BCS

2012-13 Facilities Litigation: anti-SLAPP Motion

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

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

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

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

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

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

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

Favorable Ruling on BCS Motion

2012-13 Facilities Complaint; Cross Complaint

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

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

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

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

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

Back in Court This Week

2012-13 Facilities Complaint and Cross Complaint

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

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

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

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

BCS Response to Cross Complaint

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


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

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

BCS reply in support of demurrer to FACC


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

BCS Reply in support of  BCS anti-SLAPP


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

BCS Objection to Huttlinger


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

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

What is Declaratory Relief?

I'm not a lawyer, although my father was for many years.  This column is not to be construed as legal advice.  However, I have "passing" familiarity with legal terms.  One term that cropped up recently, and is new to me, is Declaratory Relief or a Declaratory Judgement.

Basically, someone can seek a Declaratory Judgement if they need clarification of a legal issue that is likely to end up in court.  According to NoLo.com, courts tend only to hear Declaratory requests when there is an important constitutional issue.  (See their definition here)

In our Cross-Complaint against BCS, the District is seeking Declaratory Relief.  We are asking the courts to tell us in advance what our responsibilities are under Prop 39 if the allegations against BCS are true.  We aren't asking them to order BCS to do anything specific- just asking for clarification of what we need to do under Prop 39.  I've heard accusations that we're trying to shut down BCS, but that simply isn't true.  We just want to understand our obligations.