Wednesday, July 13, 2011
Court Reinstates Revocation of Local School’s Charter
Justices Say Office of Education’s Procedures Satisfy Due Process Concerns
By KENNETH OFGANG, Staff Writer
County boards of education and other entities that charter schools may revoke those charters on the basis of evidence presented outside the record of the statutorily mandated public hearing, and are not required to grant a separate evidentiary hearing before a neutral factfinder, the Court of Appeal for this district ruled yesterday.
Div. One reversed a judgment requiring that the Los Angeles County Office of Education reinstate the charter of Crenshaw-based Today’s Fresh Start, a nonprofit school whose charter was granted by the county in 2003 and renewed in 2005.
In June 2007, LACOE advised the school that it planned to investigate a number of complaints, including that the school was violating legal rights of students, parents and employees; that its attendance procedures were deficient, and that it was violating state testing protocols.
A month later, the county office said it had identified several deficiencies, which it demanded the school correct. A public hearing before the county Board of Education was scheduled for November of that year to consider possible revocation if the corrections were not made.
Several individuals associated with the school, including six students, spoke at the hearing, as did then-Assemblyman Mervyn Dymally. At a subsequent board meeting, the school’s counsel complained that the revocation procedures violated due process due to the lack of an impartial adjudicator; the close relationship between LACOE, which initiated the process and had recommended revocation, and the board; and the lack of opportunity to respond to some of the office’s criticisms.
Shari Kim Gale, general counsel for LACOE and the board, explained that under the Charter Schools Act, the county board acts as the chartering authority, the superintendent of schools and LACOE act as advisors to the board, the board decides whether to revoke the charter, and if the board votes to do so, the school may appeal to the State Board of Education.
The state board, not the county board, is the “neutral” adjudicator, Gale explained, while the county board, having issued the charter and being responsible for overseeing LACOE, which monitors the school’s compliance with charter requirements, is “not neutral.” The process, Gale opined, was “entirely legal.” At a subsequent meeting, a representative of LACOE’s Charter School Office presented a final report concluding that the school had not corrected the deficiencies, despite being given reasonable opportunities to do so.
While supporters argued that the school was making progress and be given at least another year, then-county Superintendent of Schools Darline Robles said the school had resisted efforts to investigate its operations. School officials sought to blame the impasse on LACOE, saying it had refused to confer with them on how the investigation should be conducted, while Robles said it was up to LACOE to determine its own investigative procedures, independent of any dispute resolution process.
The board voted 4-3 to revoke the charter. The school appealed to the State Board of Education, which upheld the revocation on a tie vote.
Los Angeles Superior Court Judge James Chalfant, in granting the school’s petition for a writ of administrative mandate, held that the county violated due process by considering matters not presented at the public hearing, and by not affording it a separate evidentiary hearing.
But Justice Frank Johnson, writing for the Court of Appeal, said the county followed the Charter Schools Act, and that the act’s procedures satisfy constitutional due process concerns.
Consideration of evidence outside the public hearing record would violate due process, the justice explained, if the adverse party were not apprised of the evidence and given an opportunity to rebut it. But that did not happen in this case, Johnson explained, because all of the evidence considered by the board was provided to the school.
Nor, the justice wrote, is there any statutory or constitutional requirement of a separate, formal administrative hearing.
Johnson took issue with the trial judge’s characterization of Gale’s remark about the county board being “not neutral” as constituting an admission of bias that could only be remedied by having a neutral adjudicator conduct a new hearing. That conclusion, the justice said, was made “without balancing the benefits and burdens of such a procedure.”
He distinguished Haas v. County of San Bernardino (2002) 27 Cal.4th 1017, which held that a permit revocation violated due process because the hearing officer was hired and paid by the county on an ad hoc basis, giving him an incentive to rule in the county’s favor in order to secure similar work in the future.
The school, Jackson said, made no showing that county board members had a financial incentive to revoke the school’s charter, or that they had an actual bias. Applying Gale’s “not neutral” comment, stripped of its context, as proof of such bias “was too far a stretch.”
Nor did the various roles served by Gale and Robles in the process deprive the school of its right to a fair determination of the issues, the justice said, because neither of them were voting members of the board. The appeal to the state board, he added, acts as an additional safeguard against any bias that might infect the county board process.
The case is Today’s Fresh Start, Inc. v. Los Angeles County Office of Education, 11 S.O.S. 3831.
Copyright 2011, Metropolitan News Company