Judge Patricia Lucas hears the Bullis Charter School litigation vs. LASD Aug. 15
UPDATE May 17: On the afternoon of Aug. 15, the hearing was postponed till August 30 at 1:30 pm. On the evening of Aug. 13, the LASD Board authorized two more filings against Bullis Charter School. Lalahpolitico supposes these must have arrived on the Judge’s desk — already piled high with both sides filings — Tuesday late or early on Wednesday.
Judge Lucas’s Aug. 15 hearing at Santa Clara County Superior Court is where the next chapter in the Bullis Charter School litigation will unfold. Here is how Bullis Charter School (BCS) expects to refute Los Altos School District’s (LASD) argument that it cannot comply with the 2009 Judgement and Writ …and that it should not even have to comply because BCS is not really a public school.
BCS is really a private school for the wealthy…LASD can’t comply…we have space shortages…District students would be disrupted
Below is the reply brief of BCS lawyers to LASD’s contentions that–
1) the 2012-13 of Egan and Blach offer is Prop 39 compliant, but BCS does not even deserve Prop 39 facilities because a) it discriminates in admissions b) it is really a private school that serves the wealthy.
2) LASD is simply unable to provide BCS with its own site because of space shortage and student disruptions
Santa Clara Superior Court – venue of the BCS vs. LASD hearing
The BCS lawyers argue the 2012-2013 Egan-Blach offer is not Prop 39 compliant because it is short in acreage and is split across 2 campuses without making the legal “finding” that splitting is ok. They say that in law, (Ridgrecrest) the assumption is that it is NOT ok.
The BCS lawyers say there is no “legal authority” that allows LASD to deprive BCS of Prop 39 facilities based on family finances or the existence of donors. In fact, Prop 39 encourages private support. Further more, they state that these issues were not raised in the previous proceedings and it is too late — legally — to raise them now. [Also SCCBOE dealt with some of these admission process-social justice “peccadilloes,” was satisfied with BCS modifications, and renewed its charter in 2011]
The BCS lawyers say LASD has excess capacity of 684 students across all its schools and could provide BCS a site if it redrew boundaries, something it has done in 2003, upon closing Bullis Purisima, and in 2008 upon opening Bullis Gardner. (Furthermore, LASD doesn’t even include the Egan camp space as part of capacity.) Alternatively, the district could swap sites with Bullis, putting a small K-6 school in the Egan Camp, and BCS in the vacated school. The lawyers say that redrawing attendance boundaries will cause some disruption for some LASD students, but that is not an excuse for depriving BCS students of Prop 39 facilities.
The lawyers say there is no reason the District could not keep BCS student together for 2012-2013 by reassigning as few as 27 Egan students to Blach. They say that Egan has 79 students who reside in the Blach attendance area and also 9 out-of-District students. With a reassignment, BCS K-8 to could be together this year.
If the District would simply comply with the law and begin with the assumption that Bullis should be on one site and “and attempt from there” to provide Bullis with a single k-8 cam puts, there is no logical, legal, or practical reason why that cannot be done.
Lalahpolitico presents the below document pertaining to the Bullis Charter School litigation in its entirety, orginally a .pdf, here as HTML here to improve readability. One place to find this one and more orginal litigation .pdfs — presented in a convenient google viewer — is here. Appreciation to LASD Board VP Doug Smith’s spirit of transparency for reposting BCS court documents.
The superior court page for this case with a collection of its documents from both sides is here. The Court calendar for this case is here and also on the previous page. The hearing is Wed. Aug 15 at 9am, Superior Court, 191 First St. Judge Patricia Lucas, Dept. 2.
The BCS Reply Brief…
in Support of Motion to Compel Compliance with Judgment and Writ [2009]
1 SUMMARY OF REPLY
The District cannot escape (and therefore does not address) an irrefutable fact-the Court
of Appeal reviewed a lengthy record and made an unambiguous finding in this case: “based upon
Bullis’ projected 345 students, the appropriate size of the charter school site would have
been 8.37 acres; the Egan site, according to the District, was only 6.2 acres.” (Bullis Charter School
v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022, 1050 (Bullis), italics added (rev. denied Jan.
18, 2012).) The Court of Appeal stated not once, but twice, that to house Bullis’ projected K-6
students, and considering the facilities provided to comparison schools, the District was required
to provide Bullis with approximately 8.37 acres: “The Egan site is significantly smaller than any
ofthe five comparison group school sites. When the acres-per-student formula is considered, the
Egan site is still only 74 percent (6.2 acres divided by 8.37 acres) of the size that
would be considered comparable.”(Bullis, supra, Cal.App.4th at p. 1052, italics added.)
For the upcoming school year, Bullis has approximately 100 more in-District K-6
students. Yet, the District has decided to provide them only 7.45 acres-almost one acre less that
what the Court of Appeal said was comparable for approximately 100 fewer students.
These quotes were contained in the Introduction to Bullis’ opening brief. Yet, the District
ignores them and instead claims it complied with the Court of Appeal’s mandate by offering
11 acres to Bullis. The District overlooks the fact that well over three of these acres are offered to
only 6% of Bullis’ population, at a campus that is largely, if not entirely, inaccessible to almost
all of Bullis’ students. At no point does the District attempt to justify its offer of7.45 acres to the
same, but significantly expanded, K-6 cohort, in direct violation of the Court of Appeal’s ruling
that many fewer students were entitled to significantly more space (8.37 acres).
Recognizing that it is in violation of the Court of Appeal’s and this Court’s orders, the
District makes the remarkable assertion that Bullis should not receive any facilities at all because
Bullis somehow discriminates in its admissions process. Alternatively, the District argues that it
should be able to provide Bullis students with something less than reasonably equivalent facilities
because, it claims, Bullis is really a private school that serves wealthy families. These arguments
were made by the District and Bullis antagonists last year when they argued against the renewal
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of Bullis’ charter. Bullis addressed those arguments and the County Board of Education voted to
renew Bullis’ charter. In addition, the District previously raised these issues in a lawsuit that it
filed in 2008 against the County Board and Bullis, alleging that Bullis “cherry-picked” its
students. Judge Murphy properly rejected that suit. (Supp. Gonzalez Dec.,4-7.)
The District’s renewed arguments lack merit for three separate reasons:
• first, there is nothing in the law that allows the District to refuse to provide Bullis
with reasonably equivalent facilities on the basis that the District believes that
Bullis is a private school, or that it believes Bullis has improper admissions
practices;
• second, there is no evidence that the District ever made an affirmative decision, or
somehow utilized its discretion, to deprive Bullis of reasonably adequate facilities
on the grounds that Bullis is allegedly a private school or allegedly has improper
admissions practices; and
• third, these arguments have been waived because the District never raised these
“defenses” in its answer, in its briefs at the trial court, or in its briefs on appeal.
Because it is undisputed that the District has provided Bullis’ K-6 students with one acre
of land less than what the Court of Appeal said was needed for over 100 fewer students than
Bullis’ upcoming K-6 enrollment, the District has failed as a matter oflaw to comply with the
Court of Appeal’s opinion, and with this Court’s mandate. The District’s lengthy opposition and
ever-changing new arguments confirm what Bullis has suspected for years-without an Order
from this Court, Bullis will never receive the reasonably adequate facilities it is entitled to.
ARGUMENT
I. THE DISTRICT HAS FAILED TO PROVIDE BULLIS’ K-6 STUDENTS WITH THE SPACE AT EGAN THAT THE COURT OF APPEAL SAID WAS NECESSARY TO ESTABLISH REASONABLE EQUIVALENCE
At no point does the District even attempt to show that the facilities provided at the Egan
site for the K-6 students who will be housed there are reasonably equivalent to the facilities
provided to District K-6 students. The District’s only response is to argue that there are three
additional acres provided to Bullis on the other side of town. But the fact that 3 acres of largely
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unusable space is provided to Bullis’ 7th and 8th graders four miles away does not satisfy the
District’s obligation to provide reasonably equivalent facilities to Bullis’ K-6 students.
In its lengthy opposition papers, the District devotes all of one line to this critical issue:
“BCS may include more than grades 7-8 on Blach.” (Opp. at 10.) But the District makes no
provision for transportation to or from the two sites and has failed to even consider the impact
that any such travel time would have on the Bullis students’ education. This violates clearly
established law. In Ridgecrest Charter School v. Sierra Sands Unified School District (2005)
130 Cal.App.4th 986 (Ridgecrest), the court specifically held that if a school district is unable to
provide a charter school with a single site, it must consider the impact of trips between schools:
Student safety presumably includes a concern about the number and length of the trips that students (in both the charter school and
district-run schools) must make each day, and the means of
transportation (by school bus or private car). The District’s analysis
likewise neglects to address this concern.
(Id. at p. 1005, fn. 19.) Here, similarly, the District did not address this critical issue, failing to
even inquire as to the frequency of trips that would be needed.
That the District did not consider transportation between the two sites is not surprising.
The suggestion that Bullis can simply send some of its K-6 students to Blach flies in the face of
the District’s own written findings:
Student Safety Favors Two Sites: The District has considered the safety of BCS students and has concluded that placing BCS’s
kindergarten through sixth grade students at Egan, and its seventh
and eighth graders at Blach, will maximize student safety.
(Eyring Dec. Ex. A at 25; Kenyon Dec. Ex. 2 at 9.) The District also made the following finding
as justification for splitting up Bullis’ students:
Because of the educational, developmental and other advantages
that exist by separating younger, pre-adolescent students from
adolescent students, in its best judgment, the District cannot offer
BCS a reasonably equivalent facility without separating BCS’s 7th
and 8th grade students from its kindergarten through 6th grade
students. Moreover, placing BCS’s Kindergarten through Six and
Seventh through Eighth graders at different sites helps BCS realize
the benefits related to school size described above.
(Kenyon Dec. Ex. 2 at 8, emphasis omitted.) The District goes on to note that separating K-6
students from 7th and 8th grade students “is consistent with the District’s configuration of its own
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sites, and its allocation of facilities to its own students.” (Id.)
Having found that the separation of the K-6 students is based on a purported concern for
their safety or based on a belief that it will “benefit” the K-6 students, the District cannot now eat
its cake too and say that the non-compliant facilities offer for the elementary students is
somehowcured because of three acres provided to the 7th and 8th graders four miles away. 1
II. THERE IS NO BASIS FOR DEPRIVING BULLIS STUDENTS OF REASONABLY EQUIVALENT FACILITIES DUE TO THEIR
FINANCIAL STATUS
The District seeks to defend itself by arguing that Bullis is “a wealthy school” and
suggests that Bullis’ request for reasonable facilities is “reverse-Robin Hood.” (Opp. at 1.) One
District Board Member has submitted a declaration stating that he is concerned that the camp site
provides Bullis students with “a more luxurious experience for the most privileged.” (Smith
Dec., Dkt. No. 155, 42.) The District makes this argument even though its current Budget
Report concedes that most District students enjoy economic good fortune: “Most of our students
live in neighborhoods of relatively high socio-economic status. The median household income is
243% of the state average.” (See Annual Budget, 2012-2013, Los Altos School District, at 35,
available at http://www.lasdschools.org/files/user/1/file/2012 13 Budget.pdf (last visited August
4, 2012).) Simultaneously with its opposition, the District filed a procedurally improper “cross
motion for declaratory relief” seeking a ruling that the District can “count BCS’s private
resources” when formulating facilities offers. (Cross-Mtn. at 14.)
The District made this argument in this case for the first time on June 8, 2012, when the
1 The District now claims that it “re-measured” the acreage offered to Bullis, and that it
has offered 7.67 acres instead of7.45 acres reported in the Final Offer. (Kenyon Dec., Dkt. No.
163, 2; Eyring Dec., Dkt. No. 141, 5.) Even the District’s “re-measurement” falls far short of
the amount required. Moreover, the District’s new measurement is part of a pattern: constantly
changing measurements to suit its particular need at the given moment. In the Court of Appeal
and the Supreme Court, the District insisted that the site offered to Bullis in 2009-2010 was
“close to 7 acres.” (Petition for Review, available at 2012 CAS. Ct. Briefs LEXIS 1716, at *39,
fn. 10 (Dec. 6, 2011).) Now, when it is trying to show “the greater amount of space offered to
BCS for 2012-2013 as compared to 2009-2010,” the District has decided that the “total acreage
offered to BCS” in 2009-2010 was only 6.23 acres. (Kenyon Dec.1-2.) The pattern continues
with the District’s “re-measurement” of Covington and Springer, as well as other measurements,
taken by the architects that used erroneous maps with “overstated” measurements (that the
District knowingly filed in Court). (Bullis, supra, 200 Cal.App.4th at p. 1057.)
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parties appeared ex parte to establish a briefing and hearing schedule for this motion. At that
time, the District argued that it should be allowed discovery pertaining to the financial resources
available to Bullis and cited to footnote 28 of the published opinion in this case as legal authority.
This Court reviewed that footnote and properly concluded that no such discovery should be
allowed because it was not relevant or likely to lead to the discovery of admissible evidence.
(Supp. Gonzalez Dec. 2-3.)
The District also made this argument in a prior lawsuit that the District filed in 2008. The
District argued that the County Board of Education had improperly allowed Bullis to give an
enrollment preference to students who lived in a wealthier area. Judge Murphy denied the
District’s request for writ relief. (Supp. Gonzalez Dec. 6-7.)
This Court’s and Judge Murphy’s prior rulings were correct. There is no legal authority to
support the District’s argument that it can provide Bullis students with facilities that are not
reasonably equivalent based on their families’ financial circumstances or on contributions from a
donor. There is nothing in the legislative history, nothing in the statutes, nothing in the
regulations, and nothing in any opinion from any court that would support this argument. Indeed,
the Legislature anticipated- and encouraged- private support to charter schools, without any
suggestion that such support would relieve a school district of Proposition 39 obligations or
convert a public charter school into a private one. (See Ed. Code§ 47603, subd. (a) [“This part
shall not be construed to prohibit any private person or organization from providing funding or
other assistance to the establishment or operation of a charter school”].)
Moreover, contrary to the District’s suggestion, Bullis parents are not required to pay
tuition. (Supp. Hersey Dec.,4.) The District’s evidence confirms this point. The District
submitted a declaration from an investigator who went undercover at a Bullis recruitment
presentation. He says that parents were told: “We do not charge tuition and our parents do not,
are not required, to pay tuition.” (Rivera Dec., Dkt. No. 162, 3(a).) He is right. That is what
parents are told. No student has been excluded for failure to make a voluntary donation to Bullis.
And finally, there is no evidence that this issue was ever considered by the District, much
less that it was the basis for providing substandard facilities to Bullis. And, because the District
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did not raise this issue in the trial court or on appeal, the “defense” has been waived. (See, e.g.,
Carranza v. Noroian (1966) 240 Cal.App.2d 481,488 (Carranza).)2
III. THE DISTRICT ALSO CANNOT REFUSE TO PROVIDE REASONABLY EQUIVALENT FACILITIES BASED ON A BELIEF THAT BULLIS HAS IMPROPER ADMISSIONS PRACTICES
In its cross-motion, the District draws a line in the sand: “If the District finds that BCS
has unlawfully discriminated in past admissions, the District may decline to allocate any
facilities.” (Cross-Mtn. at 13, emphasis added.) Again, there is no support in the law for this
proposition. Nothing in the legislative history, nothing in the statutes, nothing in the regulations,
and nothing in any opinion from any court supports this argument. And of course, no authority is
cited at the end of this statement in the District’s cross-motion.
Moreover, as with the “financial” argument, there is no evidence that this issue was ever
considered by the District, much less that it was the basis for providing substandard facilities to
Bullis. And, because the District did not raise this issue in the trial court or on appeal, the
“defense” has been waived. (See, e.g., Carranza, supra, 240 Cal.App.2d at p. 488.)
Finally, these arguments are baseless. Bullis uses a public lottery to admit students to
oversubscribed grade levels. (Supp. Moore Dec.,7.) It has served special education students
each year, providing services to 64 students in the last school year alone. (Supp. Hersey Dec.
2.) In addition, Bullis has run outreach programs throughout the community, including in
minority communities, to encourage families to apply to Bullis. (Mellea Dec.,2-4.) And, as
noted earlier, Judge Murphy already denied the District’s request for writ relief based on Bullis’
admissions practices. (Supp. Gonzalez Dec.6-7.)
IV. THERE IS AMPLE SPACE IN THE DISTRICT TO ACCOMMODATE BULLIS STUDENTS ON ONE SITE
Throughout its brief, the District contends that it cannot provide Bullis with its own site.
2 Not only was this argument never raised, it is inconsistent with what the District told the
Supreme Court: “The District does not dispute the obligation to share facilities fairly or that
charter school students are entitled to be housed in reasonably equivalent facilities.” (Petition for Review, available at 2012 CAS. Ct. Briefs LEXIS 1716, at *4.)
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Actually, its own evidence proves otherwise. The District’s Assistant Superintendent, Randy
Kenyon, includes a table that shows the enrollment capacity at each elementary school below the
District’s desired cap of 600. (Kenyon Dec.26.) That table shows that the District has an
excess capacity of 6students at those schools, far more than Bullis’ enrollment and more than
double the enrollment at Gardner Elementary School. Indeed, this conclusion is reinforced by the
Declaration of Thomas Campbell (filed by the District), which confirms the district has a capacity
of 3,773 students at the other six elementary schools “with the addition of both permanent and
portable classroom facilities.” (Campbell Dec., Dkt. No. 161, 7.) The District regularly adds
and subtracts portables from its campuses. (Supp. Eyring Dec.,9.)
Tellingly, the District’s “capacity” numbers in Mr. Kenyon’s declaration do not include
the temporary camp site at Egan. The District claims that the camp site can easily accommodate
Bullis’ 439 K-6 students. (Opp. at 10-11.) Thus, the District could easily absorb the students
from one of the four schools that the parties had tentatively agreed to assign to Bullis. Moreover,
if the Egan site is large enough for Bullis’ 439 students, then it will certainly accommodate the
324 students projected to attend Gardner. 3
That means that the District has at least two obvious and feasible options: (1) it can
provide a campus to Bullis and adjust its attendance boundary lines at other schools, as it has
done at least twice in the last 10 years; or (2) it can simply swap sites with Bullis, placing a
smaller District K-6 school on the Egan campus. There is no indication that the District even
considered this second option. That is another violation of the law. The District must make
findings and “the explanation should be thorough enough, and factual enough, to permit effective
review by the courts.” (Ridgecrest, supra, 130 Cal.App.4th at p. 1006.)
Mr. Kenyon states that if the Gardner site was used to accommodate Bullis, “its [324]
students could only be reassigned to the three schools closest to it: Santa Rita, Covington, and
3 Gardner currently has 298 students, only 238 of whom reside within its attendance area.
It has 31 out-of-District students. Accordingly, the number of students who would need to be
accommodated at nearby school sites (or the Egan Camp Site) would likely be less than 300.
(Spector Dec., Dkt. No. 138, Ex. Vat 68.)
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Loyola.” (Kenyon Dec.27.) But wait a minute. The Egan camp site that currently houses
Bullis would be available if Bullis were assigned its own campus, and the Egan site is only four
blocks away from Santa Rita. (Supp. Moore Dec. 8.) Thus, Mr. Kenyon is demonstrably
wrong when he says that if Bullis were moved to Gardner, the students “could only be
reassigned” to three schools because he completely ignores the Egan camp site. 4
Finally, although the District complains that realigning its attendance boundaries might
create some disruption for other students, that cannot be an excuse for continuing to deprive
Bullis students of reasonably adequate facilities. As noted by Ridgecrest:
We have little doubt that accommodating [the charter school’s]
facilities request will cause some, if not considerable, disruption
and dislocation among the District’s students, staff, and programs.
But section 47614 requires that the facilities “should be shared
fairly among all public school pupils, including those in charter schools.”
(130 Cal.App.4th at p. 1006; see also Ed. Code§ 47614, subd. (b) [“[f1acilities provided shall be
contiguous”].) Ridgecrest also mandates that school districts “must at least begin with the
assumption that all charter school students will be assigned to a single site, and attempt from there
to adjust the other factors to accommodate this goal.” (130 Cal.App.4th at p. 1005; see also Cal.
Code Regs. tit. 5 § 11969.2, subd. (d).)5
Regardless of whether the Egan Camp Site is large enough to accommodate 439 K-6
students, there is no basis to suggest that the adjacent Egan Junior High School could not
accommodate the 27 7th and 8th graders exiled on the other side of the District. Egan Junior
4 It is ironic that the District fails to identifY the Egan Camp Site as a “site” for purposes
oflocating its own students, especially given the District’s contention that the temporary camp site provided to Bullis is “more luxurious” than other District campuses. (Smith Dec. 42; see
also Opp. at 4 [calling the facilities the District provides to Bullis “enviable”]; Opp. at 10 [claiming that the facilities at the camp site are “worth millions”].)
5 The reason the law emphasizes the importance of a single site large enough to accommodate a charter school is clear: school districts, such as the District herein, generally run
similar programs on sites throughout the district. If the population at one site exceeds its
capacity, districts can adjust attendance boundaries. School districts are not forced to deliver a
single school program with shared staff across multiple sites. In contrast, when a school dis rict splits the enrollment of a single charter school (such as Bullis) across multiple sites, the charter
school’s ability to deliver an integrated educational program is negatively impacted (not to
mention to the negative impact on the relocated students). (Hersey Dec., Dkt. No. 137, 5.)
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High School has roughly 560 students (2012-2013 Budget Report, Los Altos School District, at
36, available at http://www.lasdschools.org/files/user/1/file/2012 13 Budget.pdf (last visited
August 4, 2012); that leaves plenty of room for 27 additional students without reaching the
District’s self-imposed “enrollment cap” of 600. Furthermore, it would be a minor adjustment to
move 27 District students from Egan to Blach.6
Instead, the District refuses to relocate a single District student from any of its campuses
to accommodate the integrated K-8 Bullis program on a contiguous and reasonably equivalent
site. This is hardly in line with the Court of Appeal’s mandate in Ridgecrest, which held that the
school district’s multi-site offer for a K-8 charter school (in a district which, like this one, runs
K-6 and 7th/8th grade programs) was non-compliant, even though accommodating the charter
school on a single site would require “displacing a large number of District students from their
elementary schools.” (Ridgecrest, supra, 130 Cal.App.4th at p. 1005; see also CSBA v. State Bd
of Education(2010) 191 Cal.App.4th 530, 549 [“there is no reason to conclude … that it is
impossible or illogical for a district to provide ‘reasonably equivalent’ facilities at a single site for
a charter school with a broader range of grade levels than the traditional schools in the district”].)
Each of the nine school sites that the District operates is physically large enough to
accommodate the entire K-8 enrollment of Bullis if attendance boundaries are adjusted. The
District itself went so far as to say (to the Supreme Court) that the Court of Appeal’s opinion
requires “specifically … [that] a district must … allocate for exclusive use a school site of equal
size to those of the comparison group schools.” (Petition for Review, available at 2012 CAS. Ct.
Briefs LEXIS 1716, at *28.) If the District would simply comply with the law and “begin with
the assumption” that Bullis should be on one site “and attempt from there” (Ridgecrest, supra,
130 Cal.App.4th at p. 1002) to provide Bullis with a single K-8 campus, there is no logical, legal,
or practical reason why that cannot be done.
6 Egan Junior High has 79 intra-District students- i.e. students who reside within the
Blach attendance area but nevertheless attend Egan- as well as 9 out-of-District students. (Spector Dec. Ex. W at 1-2.)
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CONCLUSION
As noted in Bullis’ opening brief, the Court of Appeal has held that the District was
required to provide Bullis with at least 8.37 acres more than three years ago. Bullis now has over
100 more K-6 students and the District has provided those students with far less than even the
8.37 acres that the Court of Appeal said the law mandated. Allocating 3 additional acres on a
campus four miles away does not solve this problem. Because it is evident from the tone and
substance of the District’s briefs and from the history ofthis dispute that Bullis will never get
reasonably adequate facilities without further Order from this Court, and because it is clear from
the gerrymandered facilities offer that the District has not complied with the Court of Appeal’s
mandate, the requested relief should be granted.
Dated: August 7, 2012
ARTURO J.GONZALEZ
MIRIAM A. VOGEL
SUZANNA PACHT BRICKMAN
MORRISON & FOERSTER LLP
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REPLY BRIEF IN SUPPORT OF MOTION TO COMPEL COMPLIANCE WITH JUDGMENT AND WRIT
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