U.S. Department of Education invites applications for Charter School grants

In yesterday’s Federal Register, the U.S. Department of Education announced  that it was seeking applications for grants to support charter school access to capital. 

The program provides grants to enhance charter school access to private-sector credit for facilities projects (acquisition, construction, and renovation). Competitive preference will be given to applications that (1) target services to areas where a large proportion of public schools have been identified for school improvement; (2) target services to geographic areas where a large proportion of student perform below proficient on state assessments; and (3) target services to areas with a large proportion of low-income families. The details are contained in the announcement. 

The Department appears to be targeting state and regional agencies as well as consortia of charter schools or educational management organizations, but there is no bar to individual charter school applications. 

Leasor Beware: distinctions between design and lease under the Fair Housing Act's statute of limitations

A university student, who used a wheelchair because of a neuromuscular condition, filed suit against a university and others asserting that the apartment he leased was not properly accessible. The design for the building at issue was completed in 2000. Student signed a lease in December, 2005 and filed suit a year later asserting claims under the Fair Housing Act, the Americans With Disabilities Act (“ADA”), and the Rehabilitation Act of 1973 (“§ 504”). The university and others moved to dismiss the complaint as untimely. The court’s decision found the complaint was timely because the lease was a new occurrence.

The Fair Housing Act provides that a person has two years to file suit “after the occurrence or the termination of an alleged discriminatory housing practice. . . .” 42 U.S.C. § 3613(a)(1)(A). The question for the court was the meaning of “occurrence or the termination.” After addressing a few other court decisions, including the only two apparent federal appeals court decisions approaching the issue, the court concluded that two important distinctions lie in the Fair Housing Act. First, there is the “occurrence” of designing and completing the building itself, and second, there is the continuing operation and management of the building. 

As to the design portion of potential liability, the statute of limitations begins to run once the building is completed. Accordingly, the court found, the architects were previously properly dismissed from the case. As to the continuing operation and management of the building, the court concluded that each new lease of an apartment is a new “occurrence.” Unlike the architects and builders, the owners and managers continue to remain in control of the building and are in a position to correct design defects.  

The court also applied the same reasoning to, and reached the same conclusions under, the ADA and 504 claims. The court further expressly pointed out the a public university has a continuing obligation to assure that its buildings are accessible. 

The decision’s logic appears solid. Accordingly, leasor’s beware – and be sure your buildings are up to code.

School construction and mandate waivers

On November 21, 2007, the Pennsylvania Supreme Court in Mechanical Contractors Association of Eastern Pennsylvania, Inc. v. Commonwealth, et al., ruled that public schools may seek a waiver of the multi-prime requirement for construction projects. 

In the past, schools undertaking construction projects had to bid the projects to at least four basic prime contractors - a general contractor, a mechanical contractor, an electrical contractor, and a plumbing contractor.  In the experience of many, that requirement led to higher construction costs and greater claims and lawsuits against schools.  Now, schools can attempt to avoid these problems and expenses by applying for a waiver of the multi-prime requirement from the Department of Education.  The Department must decide, however, whether to grant the waiver. 

Thanks to Ron Williams, Co-Chair of the Fox, Rothschild construction law group for this update.  Contract Ron, or Brian Subers, the other Co-Chair of the construction law group, about construction related legal issues.