UPDATE Oct. 8, 2012
On Sept. 12 Bullis Charter School filed a brand new lawsuit claiming the 2012-2013 facilities were not “reasonably equivalent.” On Sept. 20 Judge Lucas made her ruling on the old case – which was NOT to compel LASD. LASD won the round. See the story here.
ORIGINAL STORY – Sept. 1, 2012
Visitors to last Thursday’s hearing on the Bullis Charter School lawsuit who were hoping for a ruling from Judge Lucas were disappointed. During the brief 60 minute hearing she posed questions to the two teams of lawyers on whether or not she had the “jurisdiction to compel,” and exactly what, if anything, she could compel. She also asked them to cite legal precedents word for word.
whether there was authority to compel, given than some facts had changed
A sticking point was whether there was authority to compel, given than some facts had changed from her original 2009 ruling which was upheld and amplified by the Appellate Court and turned away from the State Supreme Court. The LASD lawyers argued that a whole new case needed to be started, because the facts pertaining to facilities had changed, and in addition there were other facts – ones about the charter school – that should be introduced and considered.
The BCS lawyer argued that, with the precedent set by the Gonzalez case ruling, it wasn’t necessary or proper to have a new lawsuit. The judge in that case ruled, “That courts of equity will always find the means to enforce their decrees. And to do full and final justice between the parties.”
That courts of equity will always find the means to enforce their decrees. And to do full and final justice between the parties
The BCS lawyer said that the item in the appellate writ that LASD is not complying with is the acreage on Egan. It should have been 8.47 acres in 2009 to be reasonably equivalent according to the calculations of the appellate court decision. He said that for Judge Lucas to decide whether LASD has complied now in 2012, she could look at just the K-6 separately from the new middle school grades because K-6 and 7-8 are on two different campuses. He alleged that the Egan Campus has almost the same space and almost the same portables as in 2009. All that was added was some land with shrubs. His logic concluded with the idea that if there are more BCS students on Egan now than in 2012 and less BCS land than the 8.37 acres required in 2009, then the BCS facility on Egan (7.4 acres in 2012) can’t be reasonably equivalent.
if there are more BCS students on Egan now in 2012 and less BCS land than the 8.37 acres required in 2009, then the BCS facility on Egan (7.4 acres in 2012) can’t be reasonably equivalent.
The judge kept pushing back at the BCS lawyer … You are asking me to enforce an entirely new situation … whether there is compliance depends on the law and the facts — which have changed.
She asked what it means for the court to have continuing jurisdiction? She asked the BCS lawyer to explain how the Gonzalez case supports that. The attorney contended that the Gonzalez decision showed that circumstances could change but there could still be continuing jurisdiction. In the Gonzalez case the defendant had argued for a new lawsuit and the judge had said, no, the proceedings could be continued to get whatever additional facts are needed to provide relief to the plaintiff.
The BCS lawyer contended that the case showed that circumstances could change and there could still be continuing jurisdiction.
Later Judge Lucas asked if the “continuing” of jurisdiction in the BCS case has to be within the scope of the appellate opinion and also whether there is a time limit. The BCS lawyer said he was trying to stay within the “narrow confines” of the scope of the appellate decision by focusing on the key issue – the acreage. He claimed he was staying within a narrow time parameter too because 2012 – now – is the first time BCS received facilities different from the 2009 facilities.
Next the judge pressed the BCS attorney on the part of the law and appellate decision that says below average site size alone does not warrant a decision of not reasonably equivalent facilities. The BCS lawyer conceded that yes, quality of buildings does matter in the determination of reasonable equivalence. He agreed that it could be legitimate to argue that the site size discrepancy was neutralized by being offered facilities that are “qualitatively superior” to the comparison group schools.
BCS: site size discrepancy could be neutralized by being offered facilities that are “qualitatively superior”
The BCS lawyer pointed out that BCS is on a “temporary camp site,” in portables. He said LASD is not saying here today that, ‘Yes, it’s true we have given them less land, but look at this fantastic facility we’ve given BCS.’ He said LASD is not even trying to argue that.
Later he pointed out that if LASD wants to claim this exception – that the Egan facilities are qualitatively superior — please take a look at this this board of photos. [He pointed to a poster that seemed to show different amounts of space between classroom buildings at Loyola vs. BCS] He claimed it was the burden of the district to show that, even though the Egan campus is smaller than the comparison group, it is qualitatively superior.
The LASD lawyer continued to deny the applicability of the Gonzalez case as a precedent for continuing jurisdiction, saying continuing is a “highly irregular” process when circumstances have changed. The LASD lawyer said that when the 2012 access to art and science facilities and some of the other 300 measures in the appellate decision were considered, ‘there is no way you can look at it [sic the campus/the offer] today and say it isn’t reasonably equivalent.’ It is within the discretion of the district to decide the trade-offs between the other factors and site size to make a determination of whether an offer is reasonably equivalent.
LASD lawyer: continuing is a “highly irregular” process when circumstances have changed
Finally, Judge Lucas said that somebody has to make the decision — maybe her — about whether, considering size and all the other factors that the Appeals Court identified, the school is reasonably equivalent or not.
The BCS lawyer suggested a rephrasing of the question. Has the district met its burden to show Judge Lucas that the charter school is qualitatively superior, so that the court can excuse that the school is on a site substantially smaller than other comparison schools and substantially less than the 8.37 acres required by the Court of Appeals?
Judge Lucas: So there has to be an evaluation that in addition to the site size, other factors will support the conclusion that the facility is reasonably equivalent.
The BCS lawyer pointed out that the district has not tried to make that argument. They spent $120 million refurbishing all the other schools. What do we have that is a qualitatively superior facility he asked? We have a bunch of portables he replied.
BCS Lawyer: What do we have that is a qualitatively superior facility? We have a bunch of portables.
Judge Lucas did not allow the lawyers representing the “friends of the court” (all of whom are friends of LASD) speak on anything except “jurisdiction.” One “friend” had no comment on that issue. The one from Huttlinger spoke only for a moment or two.
The closing remarks by each side went something like this.
The BCS lawyer told Judge Lucas that she could issue any order, that she has already proven that the government failed to comply with law, and that she had issued a judgment. Yet LASD still hasn’t complied with the law.
BCS: The portion of the writ that was not complied with is the size of the facility as it applied to this case.
The LASD lawyer responded that the Gonzalez case was a jury trial, about union membership and later additional damages. It was nothing like this case. Gonzalez does not support continuing jurisdiction in this case.
LASD: It’s not just about acreage. There is access to science, art, and a whole range of other things to consider this time around…and also issues with the charter school.
There are a lot of new facts to consider today: access to science, art, and a whole range of other things. Of course it is the district’s burden to use discretion in providing reasonably equivalent facilities. And with the old proceeding we can’t bring up all the new facts about issues with the charter school.
The judge ended the hearing abruptly with, “We’re done.” The visitors streamed out of the courtroom and the building, some stopping in small groups to talk about what they thought had occurred.
END OF THE HEARING
More From the Photo Album
[Lalahpolitico: For reader reference, Loyola Elementary School — probably the best looking of LASD renovations — also has some portables, like all LASD regular campuses do. At Loyola, the space between buildings — whether they are contructed or portables — was always 40 feet everywhere I looked. This seems to be fairly standard for all LASD schools. The portables, wherever I see them throughout LASD are clean, but sterile and bleak-looking, though I expect warm in the winter and cool in the summer.
BCS is 100% portables. I doubt any regular LASD school is more than 10% portables. At the April LASD board meeting where Doug Smith introduced the now defunct “tentative agreement with BCS” in the Covington multipurpose room, he also promised that a new school bond would eliminate all portables everywhere. At the time, he meant for BCS too.]
[Lalahpolitico: On my weekend self-guided tour of BCS I found that the space between portables was around 20 feet except for the picture shown by the BCS lawyer, where those portables are 10 feet apart. More troubling to me is how close they all are to San Antonio. One runaway truck means disaster.
I also was struck by how noisy some of the BCS outdoor student facilities are. The kindergarten play area and the outdoor lunch table area are about 15 feet from San Antonio Road! Habitual exposure to that level of traffic noise pollution is not good for anyone. What kind of decibel exposure are they getting in those two areas?][Lalahpolitico: Nonetheless, the BCS teachers and kids have brightened the facilities with occassional potted plantings and colorful posters. Here is one for the sister school in Costa Rica. Trips to the sister school are just one of the 100 or so activities, that LASD lawyers want to know all about. But not in a nice, travelogue kind of way.]