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In Parent-Trigger School Fight, Kirkland Lawyers Get an A+

21 July 2016

The kids are already back in school at Desert Trails Preparatory Academy in Adelanto, California, a dusty town of 32,000 in the Mojave Desert. School officials keep the break short so the kids don’t fall behind.

That the independent charter school’s 500 pupils have a campus to return to is due in large part to pro bono efforts by a team of litigators from Kirkland & Ellis, who won an essential ruling from an arbitrator last week.

It’s the latest victory for Kirkland in a long and controversial fight involving the so-called parent-trigger movement, which gives parents the power to force change at failing public schools.

Desert Trails is ground zero: the first school in the country where such a coup took place. And Kirkland lawyers have been there each step of the way.

“It’s been a substantial pro bono commitment by the firm,” said commercial litigation partner Beth Weinstein, who along with partner Sasha Danna secured the most recent arbitration win keeping the school alive.

According to the firm, Kirkland has spent more than 3,200 pro bono attorney hours on representation related to the Desert Trails school, and at least 9,300 attorney hours on matters involving California’s parent trigger law.

In 2010, California became the first state to pass a trigger law. Louisiana, Mississippi, Connecticut, Texas, Indiana and Ohio followed with their own versions; more states are considering the option.

Under California’s Parent Empowerment Act, parents and guardians of children in a failing public school can, by majority petition, replace some or all of the school staff, turn the school over to a charter operator, or close it altogether.

At Desert Trails, only one-third of students could read at grade level, and test scores kept falling. The school was the worst in the Adelanto district, and in the bottom 10 percent in the state.

The parents took action. They formed a union and in January 2012, 70 percent of them signed a petition demanding change under the law. The school district said it couldn’t validate all the signatures and rejected the petition.

Kirkland partner Mark Holscher represented the Desert Trails Parent Union, which sued the district twice in 2012, first to force it to accept the petition and then to convert the school into an independent charter.

The school reopened as Desert Trails Preparatory Academy in 2013. It’s gone from ranking tenth out of the 10 elementary schools in the district to number three in English and number five in math.

Great, right? But that’s not the happy ending.

In December, the local school board voted not to renew the school’s charter.

“Sadly, rather than applauding [Desert Trails] and supporting its continued success, the district is attempting, yet again, to destroy [Desert Trails] and ‘take back’ the school--this time, by manufacturing a series of illegitimate ‘findings’ as a pretext to deny [Desert Trail’s] petition to renew its charter,” Holscher, Weinstein and Danna wrote in March a petition demanding arbitration.

The San Bernardino County Board of Education subsequently granted the renewal, but that still wasn’t the end.

The local school district argued that Desert Trails lost its right to use the actual school campus starting in July--a move which by extension would almost surely result in the school’s demise, since the district said Desert Trails had no right to any other site either.

Why? Because Desert Trails failed to submit a separate application to renew its use of the campus when it submitted its application to renew its charter.

As a legal argument, it amounts to ‘gotcha’-- a potentially devastating (and obnoxious) attempt to exploit a technicality.

“There was no basis for them to evict us,” said Kirkland’s Weinstein. “Desert Trails has the right to be at the facility as long as it had a valid charter.”

Not only that, Danna said, “By the time we got to litigating the case, the school district couldn’t even identify a use it had in mind for the facility.”

Apparently, the district just didn’t want Desert Trails to use it.

Arbitrator John McCauley recognized the school’s position, writing, “In its way of thinking, the application for renewal was not called for. Either its charter would not be renewed, in which case it would lose the facility whether or not it applied for a facility renewal, or its charter would be renewed, in which case the facility rights would be maintained.”

The district, however, said that based on its reading of ambiguous contract language, a new facility application was required in October 2015. And in true schoolmarm form, no late submissions would be accepted.
Not that it said anything to the school about it.

Was the district now using it as a pretext to boot the school?

McCauley doesn’t say, but writes that the district did not “alert the school to the fact that it expected a facility renewal, or that the expected facility renewal application had not been received. The absence of this communication was not because the district generally lacked communication with the school. The district otherwise informed the school, as late as November 2015, and erroneously, that the charter renewal process was going well.”

McCauley sided with the school, concluding that Desert Trails “has the right to exclusive use of the school site … for the full duration of its charter.”

The ruling comes a huge relief for the Desert Trails community. “It’s been a long battle for the parents and community to get the school in place,” Danna said. “To cut short the life of the school would have been completely unfair, and contrary to what the parties agreed to.”

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