The demise of a charter school, burden of proof, and a quorum

Welcome again Mark Fitzgerald as guest blogger.  This time, he writes about the process of revoking a charter school's charter.  In the case involved the charter school could not overcome declining student performance on the state's accepted measure of annual yearly progress.  The case also presents discussion about the burden of proof (placed on the charter school) and, for anyone running a meeting, a ruling about what constitutes a common law quorum.  Mark is a member of the Education Law Group with a practice emphasis in Labor and Employment. Click here to find out more about Mark’s background and contact information.  Kudos!

The tumultuous five years of the Ronald H. Brown Charter School appears to be over. Earlier this Summer, the Pennsylvania Commonwealth Court in Ronald H. Brown Charter School v. Harrisburg City School District, upheld an order of the State Charter School Appeals Board which had earlier determined evidence was sufficient to support the local school board’s non-renewal of the charter. The Charter School had failed to meet statutory requirements as it related to accepted standards of fiscal management or audit requirements, as well as failed to demonstrate improvement in student academic performance.

In determining substantial evidence supported the Appeal Board’s denial on both the fiscal prong of the statute as well as the academic improvement prong, the court concluded the Charter School had the burden of proof to demonstrate children had in fact made improvements during the time period of the charter. The Charter School vigorously argued that it was not its burden to establish that the students had obtained higher standardized test scores and steady improvement in the quality of performance-based assessments, but rather it was the School District's burden to defend the local school boards determination for non-renewal.

While the Court conceded that the Charter School Law merely provides that local school boards may choose to revoke or not renew a charter at a public meeting based on a school's failure to meet the requirements for student performance, the law says nothing about whose burden it is going forward. In a footnote the court noted, “we advise the school that if a school submits an application to renew its charter, it is the school's burden of going forward to prove that it is entitled to have its charter renewed, including proving that its students obtained higher standardized test scores and they improved in the quality of performance-based assessments. It is not the responsibility of the school district because the school district is not the entity seeking the renewal.”

In defending its determination to not renew the charter, the School District directed the court to years of declining standardized PSSA test scores where 5th and 8th grade math and reading scores declined substantially. The Charter School argued the PSSA tests were culturally biased and the School District did not consider other assessment tools that demonstrated progress. The court concluded the school district and Appeal Board did not have to rely on other assessment measures and could simply rely on the PSSA test,  which is“the uniform test used statewide to measure performance.”

Interestingly, it now appears fairly clear, on an appeal to the Appeal Board, or Commonwealth Court, the Charter School, or in the case of an initial application, the Applicant, will have the burden to prove substantial evidence to overturn the local school district's decision. Who has the burden when a school district decides to revoke a charter before the renewal period, however, is a question that remains unanswered by the Commonwealth Court.

A related issue addressed by the decision dealt with what constituted a quorum under the Charter School Law.  In this matter, on October 14, 2005, the Charter School appealed to the Appeal Board, which is typically comprised of seven members. However, while the appeal was pending before the Appeal Board, there were two vacancies leaving only five Appeal Board members.

On May 23, 2006, during the appeal proceedings, only four of the then-current five Appeal Board members were present, but one of those members had to recuse from the appeal, leaving only three members of the Appeal Board to vote on the Charter School's appeal. Those three remaining members voted unanimously to affirm the school district’s revocation of the charter.

The Charter School argued the three members of the seven member Appeal Board who participated in the vote and voted unanimously to affirm the local school board’s decision did not constitute a quorum under the Charter School Law.

The court concluded common law quorum rules applied to the Appeal Board so that a majority was determined by number of Appeal Board members currently serving, not the total number of appointments that could be made to the Appeal Board. While the appeal was pending before the Appeal Board, there were two vacancies leaving only five actual Appeal Board members. Therefore, under common law quorum rules, the three remaining members still constituted a quorum.

Exhaustion of remedies in special education

The federal District Court for the Middle District of Pennsylvania issued a seemingly routine decision that is more than it appears.  Vicky M. v. Northeastern Educational I.U. 19  (although the docket numbers and plaintiff names differ, this decision appears to otherwise be the same as John G. v. Northeastern Educational I.U. 19, Civ A. 06-1900, --- F. Supp. 2d ---, 2007 WL 1450365 (M.D. Pa.). 

The court’s treatment of the Section 1983 claims should be reconsidered in light of A.W. v. The Jersey City Public Schools  341 F.3d 234 (3d Cir. 2007), which was issued nine days later. But more than that, the Third Circuit’s treatment of exhaustion of remedies in such cases now needs to be revisited, as Vicky M. unintentional shows.

Because the family in Vicky M. sought money damages, the court ruled exhaustion was exempted

as futile. The court, relying on and quoting W.B. v. Matula, 67 F.3d 484, 495 (3d Cir. 1995), wrote at page 18, “Recognizing that damages are available under § 1983, but not under the IDEA administrative procedures, the Matula court then concluded that ‘by its plain terms [IDEA] does not require exhaustion where the relief sought is unavailable in an administrative proceeding.’” Vicky M. thereafter discusses some legislative history regarding previous incarnations of the IDEA, as discussed in previous cases, as further supporting the exhaustion exception. 

But A.W. now controls, not Matula, and families no longer can pursue money damages claims via a § 1983 cause of action. This knocks down the first pillar of support to the exception. The legislative history relied on is not from the current IDEA as passed in 2004, knocking out the second pillar. And regardless of current legislative history – an oxymoron, to be sure – the plain text of IDEA of 2004 extends an IDEA-based cause of action only to those “aggrieved” by the administrative decision, 20 U.S.C. § 1415(i)(2)(A), taking out a third pillar of a now unsupportable exception.

The “implementation” exception to exhaustion noted by the court is, by all accounts, supported only by the few ancient statements of legislative intent. In contrast, exhaustion under IDEA of 2004, as well as previous versions, is required not only for “identification, evaluation, or educational placement,” but also “the provision of a free appropriate public education.” 20 U.S.C. § 1415(b)(6). Implementation – whether the absolute failure or, more often, a dispute over appropriateness – is a part of FAPE. Further, the 2006 federal regulations have detailed provisions and procedures for filing complaints with the state educational agency, including complaints alleging the “failure to provide appropriate services.” 34 C.F.R. §§ 300.151-300.153

Given the complexities involved in special education, especially about the quality of implementation, and given the procedures in place as well as the recent turn of events stemming from A.W., it would be a wonder if a court did not require exhaustion in just about every conceivable instance and, thereby, have the benefit of “expert” administrative review.

TItle IX, gender discrimination, and money damages

The question of money damages under various anti-discrimination / inclusion education statutes seems to be a hot subject recently. The recent en banc Third Circuit Court decision in A.W. v. The Jersey City Public Schools, 341 F.3d 234 (3d Cir. 2007), discussed in another entry, ruled that there is no cause of action under Section 1983 for money damages based on a violation of IDEA and or Section 504.  

A recent federal district court case from Puerto Rico, Frechel Rodriguez v. Puerto Rico Dept. of Educ., 478 F. Supp. 2d 191 (D. Puerto Rico 2007) (unfortunately, I have not found a public domain copy), reached a similar outcome in a Title IX-based claim of gender discrimination. Specifically, the issue was whether a plaintiff has a right of action under § 1983 to redress violations of Title IX.  According to the case, the Sixth and Eighth Circuits have held such a right exists, but the Second, Third, and Seventh Circuits have ruled such a § 1983 claim is barred under the Sea Clammers doctrine announced in Middlesex County Sewerage Authority v. National Sea Clammers Association, 453 U.S. 1 (1981).  The Frechel Rodriguez decision dismissed the Title IX-based § 1983 claims.

So what does this trial court case from Puerto Rico mean for us? 

While the Frechel Rodriguez case is statistically not likely to become a Supreme Court case (indeed, it was not appealed), it clearly demonstrates an area in which the federal courts of appeals disagree. 

Interested parties should look ahead for such “splits among the circuits” in order to raise and preserve possible appeal issues. Disagreements among the courts is a factor the federal appeal courts and the Supreme Court consider when reviewing federal statutory claims or constitutional rights. Not surprisingly, if all the cases are going one way, the chances of convincing the court to go the other way on appeal are not good.  In contrast, a split gives the case and the issue juridical life.

In Title IX actions, litigants need to be cognizant of the “split of authority” highlighted in Frechel Rodriguez when strategizing about their cases.