Igniting yet another controversy in the bitter battle over Navigator Schools’ attempt to open a new charter school in Morgan Hill, County Board of Education Trustee Joseph DiSalvo acknowledged that Morgan Hill Unified School District’s threat of a lawsuit “influenced” his vote.
In a Jan. 21 blog entry posted on San Jose Inside, DiSalvo states: “Litigation was threatened by the MHUSD, which denied the (Navigator) petition in November on a 6-1 vote.”
MHUSD officials deny any talk of a lawsuit.
“Morgan Hill never said that we were going to sue the county office if they were going to overturn the appeal,” MHUSD Superintendent Steve Betando maintains.
The “he said, she said” nature of the perceived lawsuit threat stems from a Dec. 16, 2013 letter written by attorney Laura Schulkind of the San Francisco-based law firm, Liebert Cassidy Whitmore, on behalf of MHUSD. The document was addressed to General Counsel Maribel Medina for the Santa Clara County Office of Education and copied to Betando, MHUSD School Board President Don Moody, James Dent of Navigator Schools, and Preston Smith of Rocketship Education – another charter management organization that withdrew its petition Jan. 8, one week before the County was set to vote on its appeal.
The letter repeatedly emphasizes “legal concerns” about the petitioners’ education programs, school policies and requirements necessary for their charter to be approved.
“Our separate but related legal concern pertains to how the program will tend to isolate English Learners from their peers and provide them with a different, less academically rigorous and less enriched academic program,” writes Schulkind, referring to Navigator.
She later describes Rocketship’s proposed education program as “unlawful.”
“Yes, I think the fact of any type of potential litigation influenced my vote in some way,” DiSalvo said. “I don’t know how much, but it definitely influenced my decision.”
DiSalvo was part of the split 4-3 vote that upheld MHUSD’s denial of Navigator’s petition on appeal with the County during the Jan. 15 meeting. He did say there were other factors, such as County staff’s recommendation to deny the petition and the level of hostility growing between MHUSD, Navigator and the community.
The fact that DiSalvo was concerned about potential litigation, and that it weighed on his decision, “certainly adds salt to the wound,” said Dent, who received a copy of the letter prior to the vote.
Dent, who along with Navigator’s leaders has already successfully opened charters in Gilroy and Hollister, confirmed last week Navigator’s plans to appeal to the state’s Board of Education in March.
County Board Trustee Julia Hover-Smoot, a Morgan Hill resident, doesn’t see eye-to-eye with Betando, arguing that “the threat of litigation was absolutely clear.”
Hover-Smoot, an attorney and former MHUSD board member, cast one of three votes to overturn MHUSD’s decision and approve Navigator’s petition.
Betando, who reviewed and approved the eight-page letter before it was sent out, contends the threat of a lawsuit was not the intent. Rather, the letter underscored the impact the two charter schools would allegedly have on the Morgan Hill community.
“There’s no threat of a lawsuit in there,” Betando said.
However, prior to the Jan. 15 vote, County Superintendent Xavier De La Torre said that while a threat may not have been spelled out in the letter, it was certainly implied. He added that MHUSD wasn’t the first district to make the threat of filing a lawsuit on these terms, either.
DiSalvo and Hover-Smoot said the County Board was briefed by the County’s General Counsel about possible litigation that might come from MHUSD.
At Tuesday’s school board meeting, MH Board President Moody said he never saw the letter and was not aware of it, but was going to read it since Betando supplied all seven Board members with a copy the night of the meeting. Moody added that the district did not need Board authorization for the crafting of the letter and called DiSalvo’s claim “untrue.”
Toni Cordova, who heads up the County’s Office of Innovative Schools – a team of educators in charge of reviewing charter petitions before the County – said the letter “wasn’t taken into consideration when we made our recommendation on the petition … I didn’t see us do anything different (than previous petition reviews on appeal).”
Hover-Smoot described the letter as “very direct” and one that “laid out in great detail” the groundwork for potential litigation, had the vote gone in Navigator’s favor.
“It wasn’t just one vote,” said Hover-Smoot of DiSalvo’s decision. “It was the deciding vote.”
Along with DiSalvo, trustees Anna Song, Darcie Green and Michael Chang voted to uphold MHUSD’s rejection of the petition. County Board President Leon Beauchman, Trustee Grace Mah and Hover-Smoot voted to overturn.
Dec. 16, 2013 letter written by attorney Laura Schulkind on behalf of MHUSD and sent to General Counsel Maribel Medina for the Santa Clara County Office of Education
-Summarizes several of MHUSD’s reasons for denying Navigator’s petition, saying that the charter program isolates English Learners, deprives them of the same academic opportunities as English Proficient peers, and thus violates “the principals of equal protection, equal educational opportunity and nondiscrimination protected by a broad array of federal and state statutes and constitutional law.”
In it’s argument, the letter also cites:
-The 1974 Supreme Court case of Lau v. Nichols, which covers equal educational opportunities for students,
-Brown vs. the Board of Education, which ended legal segregation in public schools,
-And the Fourteenth Amendment, which addresses citizenship rights and equal protection of the law.
