Schoolyard Fight

On a summer weekday in downtown Los Altos, every table at Starbucks is home to an open laptop. Business attire trends toward Bermuda shorts and cotton shirts here. Seated outdoors, two middle-age men in jeans hold a serious discussion. Their topic could be the early stages of a business deal, or, just as easily, a controversy in the local schools.

After all, there is a war going on here.

Los Altos - a few freeway exits south of the larger peninsula hub of Palo Alto, which is to say, Stanford - is no less a home to Silicon Valley innovators, the lawyers who represent them, and the investors who pay for it all. The town's anchor is a quaint, charming downtown, awash in new money, but rich with an old-fashioned feel. Wooden benches and pots filled with brightly colored flowers line the streets. Sidewalks are brimming with fit, healthy looking, well-manicured people who live in million-dollar-plus homes.

The local newspaper, the Los Altos Town Crier, is still widely read and has a storefront on Main Street. At the same time, the community shares news and opinions through a multitude of blogs, online sites, chat boards, and social media outlets. A cursory stroll through the Internet reveals that Los Altos residents have a lot to say.

A few blocks away on this otherwise pleasant August morning, less than two weeks before the opening of school, some 20 parents of children at Bullis Charter School stand outside the headquarters of the Los Altos School District holding colorful homemade signs that read "Talk It Out," "Kids Are Locked Out," and "Put Kids First." Their immediate audience remains small, but news of the event moves swiftly through town; supporters make sure by alerting the Bay Area media with a press release.

The Los Altos Patch, AOL's local news site covering Los Altos, carried a news story with the subheading, "School hasn't even started and things are already ugly." Other local news sites promptly published competing letters on the matter from the heads of the district and the charter school boards.

Thanks to an odd legal configuration, the Los Altos School District (LASD) serves as landlord to Bullis Charter School (BCS), which competes with the district for K-8 student enrollment and the accompanying government funding. The two entities are entrenched in a long-running and acrimonious disagreement over the charter's use of certain of LASD's facilities. In the current episode, the district is requiring Bullis to sign a Facilities Use Agreement (casually referred to in some circles as the "F.U. Agreement") that restricts the number and age of students to be taught at each site.

For most of the past decade, the BCS and LASD boards have spent millions of dollars in public and private funds on a legal battle over how they can coexist and share resources, as state law requires. Since 2000 California law has mandated that "public school facilities should be shared fairly among all public school pupils, including those in charter schools." (Cal. Educ. Code § 47614(a).)

A national movement originally designed to provide an alternative to failing public schools in low-income areas, charters are increasingly cropping up in wealthier suburbs as a way to create elite institutions that operate with public funds yet are not subject to most of the statutory and union-contract requirements to which public schools must adhere. In these contexts, "school choice" becomes the ability to upgrade.

The conflict in Los Altos has divided the high-achieving residents of this upscale enclave, where most everyone who has kids, and even some who don't, are forced to choose sides or lose friends. This enduring litigation, fueled by wealth that can underwrite seven-figure legal fees and by the drive of Silicon Valley culture, may eventually change state law.

On both sides are some of California's top-performing schools, backed by plenty of law firms: Morrison & Foerster and Procopio, Cory, Hargreaves & Savtich for Bullis, and Burke, Williams & Sorensen and Reed Smith for LASD.

As Raymond Cardozo, the district's attorney and a partner at Reed Smith, sees it, "This conflict started because the charter school was started for the wrong reasons."

Michelle Sturiale has two children attending Santa Rita Elementary School in the Los Altos district. Like most families in LASD, the Sturiales chose their home in part because the district's schools are rated among the top 1 percent in California (three are nationally recognized). Her children can easily walk to school, and Sturiale has always been an active volunteer at Santa Rita, even serving as its PTA president.

Bullis Charter School, which opened its doors in 2004, was of little interest to Sturiale and her family, she says, until it began to draw more and more neighborhood families away from Santa Rita. Sturiale has not been shy about criticizing BCS for what she describes as exclusivity: In a district where only 4 percent of students are socioeconomically disadvantaged and 9 percent are English-language learners, Santa Rita has more than twice the rates in both categories.

At the other end of the scale, Bullis has less than 1 percent and 2 percent, respectively, despite reporting numerous recruitment efforts. BCS, Sturiale asserts, is only interested in the easier-to-educate, high-achieving children of wealthier and well educated parents.

At Santa Rita, by contrast, there are parents with "blue collar jobs as well as executives," Sturiale says. "This is where I want my children to be."

But in nine years Bullis's elementary and middle-school enrollment has grown from 170 to more than 630 - enough to occupy an entire campus of the 4,500-student LASD, which has nine. And so each year the scramble for district real estate begins anew.

When a proposal emerged last year to redesignate a local campus for the charter school (Santa Rita was an early candidate), Sturiale and several other neighborhood parents mobilized and began looking into legal options. Among other concerns, she said, the move might be particularly hard on some lower-income families who would be unable to drive their children to a more distant school. Sturiale hosted a chat group online and spoke out at public forums.

"I think the fight against the charter school has solidified and strengthened the district schools," she says.

Even so, it has driven a wedge between some friends and neighbors. "It's pretty bad," Sturiale says of relations between parents at Bullis Charter and the LASD schools. "I have about five people I no longer speak to. People will cross the street and walk on the other sidewalk. And ... I have received anonymous hate mail at my home."

One particularly angry group of LASD supporters operates an anti-Bullis website. A parody of a Nazi movie on YouTube skewers the Bullis board. On local news sites and blogs, comments from both sides range from opinionated to just mean. Church leaders hosted two community meetings directed at healing, but neither was successful.

The legal fight between Bullis Charter School and Los Altos School District is rooted in a conflict that has ignited community battles across America for decades: the closing of a neighborhood school.

In 2003, facing declining enrollment numbers and state funding cuts, the LASD Board of Trustees shuttered its Bullis-Purissima Elementary School, the only one located in Los Altos Hills (half of which is included in LASD). The closure came on the heels of a bond measure to renovate schools, which Los Altos Hills parents had supported because they believed it would include their school. When Bullis-Purissima instead closed, they were enraged and felt duped.

In California, charter schools are public schools that receive per-child funding from the state and use public school facilities, but they are free to design their own education program and may be governed by an independent board. (Cal. Educ. Code §§ 47600-47644.) Many of the early efforts in the 1990s targeted drop-outs, at-risk populations, and other students who were not succeeding in traditional classrooms. During the past decade, however, charter schools have been used more aggressively as a vehicle for reform.

Supporters hail the movement as a path to improving the public school system by fostering innovation and growing new ideas from within. Critics accuse charters of "creaming" - enrolling the students who are most likely to succeed, leaving the costlier-to-educate students in traditional schools.

California became the second state in the nation (behind Minnesota) to allow charter schools in 1992, and now it leads the country in both the number and growth of charters. There is little question that the idea behind charters was to shake things up: The statute lays out several goals - including increasing student achievement and encouraging innovation - but it also targets performance-based outcomes, a politically heated issue in education, and "vigorous competition within the public school system." (Cal. Educ. Code § 47601(g).)

When Bullis-Purissima closed, parents in Los Altos Hills approached LASD with an application to create a charter at the same location. The district, presumably not eager to lose the money for those students and unconvinced that a charter would succeed, said no. Twice. In the end, the Santa Clara County Office of Education granted Bullis its charter, and it opened in August 2004 at one corner of the campus of Egan Junior High School in North Los Altos. The county charter, later upheld by a superior court judge, also included a controversial preference in admission favoring residents of the adjacent, more affluent Los Altos Hills.

State law allows a district, county, or state board to charter a school, but it dictates that school districts must provide to charter school students facilities reasonably equal to what they would have "if they were attending other public schools of the district."(Cal. Educ. Code § 47614(b).) Thus, LASD now must provide space for a school over which it otherwise has no authority.

"It's a very peculiar situation," says John C. Lemmo, an attorney with Procopio in San Diego who represents Bullis and other charter schools throughout the state.

Lemmo notes that although school districts can finance their facilities through capital funds and local bond measures, charter schools initially had to use their operating funds to lease buildings. That changed in 2000 when California voters passed Proposition 39. The law requires school districts to make "reasonably equivalent" facilities available to charter school students, as it does for all other students living within district boundaries. (Cal. Educ. Code § 47614(b).)

"Proposition 39 tends to equalize and acknowledges that school district facilities are owned by all of us, the public," Lemmo says. "It's kids' choice and parents' choice whether they want that facility to be operated by the local district or the charter school."

That, at least, is the charter proponents' theory. But in Los Altos, that theory is being put to repeated tests as a bitterly divided community debates how to allocate its limited public education resources.

The legal docket on matters involving Bullis Charter School and Los Altos School District includes eight superior court cases with myriad motion fights, followed by various appeals. In most of those complaints, the court has ruled for the school district.

But in 2011 Bullis won a challenge to the lower court's finding about how the district measured space; the Sixth District Court of Appeal found that LASD significantly underestimated nonclassroom space when it determined "equivalent" facilities. (Bullis Charter School v. Los Altos School Dist., 200 Cal. App. 4th 1022 (2011).) The state Supreme Court declined to review the ruling.

"The reported Bullis decision is a very helpful case" for the interpretation of Prop. 39, says Lemmo.

Another legal skirmish between LASD and Bullis - involving the charter foundation's suggested $5,000-per-child donation and its $7 million endowment fund - may also prove to be significant. In a cross-complaint filed last November in Santa Clara County Superior Court, LASD contends that Bullis discriminates against low-income, English-deficient, and special-needs students - and that the district should be allowed to consider the private wealth available to the charter school when it allocates public resources. Alleging that the $5,000 donation is not truly voluntary and amounts to "tuition," which is not legal, the district argues that if Bullis is not acting like a public school, LASD is not required to provide it with facilities. Bullis has denied the allegations, responding with an unsuccessful anti-SLAPP suit against the district. (In recent years, the county board of education has required BCS to make clearer to parents that the $5,000 donation is optional.) Meanwhile, Bullis leaders maintain that the district has discriminated against its children for years by assigning them to temporary, modular classrooms. (See Bullis Charter School v. Los Altos Sch. Dist., No. 1-12 CV-232187) (Santa Clara Super. Ct.).)

"The easiest thing would be to give Bullis whatever they want," says Cardozo, LASD's Reed Smith attorney based in San Francisco. "But that's catering to the special interests of a well-financed group."

Along the way, Bullis has sought attorneys fees of $1.3 million from the school district as reimbursement for its successful appeals court action. But a superior court judge late last year sanctioned Bullis more than $50,000 for not disclosing financial information to LASD; the order is being appealed. (Bullis Charter Sch. v. Los Altos Sch. Dist., pending as No. H039038 Cal. Ct. App., 6th Dist.)

"One of the absolutely brutal aspects of this is that every year the charter school digs into its private coffers and sues the local district," says Cardozo. "That's another element that's distressing. These other kids can't hire Morrison & Foerster and spend $1.3 million to challenge something."

Doug Smith is father to a student and a former student in the Los Altos School District. By day he is a senior executive at an internet company. Much of the rest of the time he is - as school board president - at the center of the Los Altos school conflict. Elected to the LASD board in 2009, he is far from its loudest voice, but nonetheless a strong leader.

The Los Altos district's heady performance rankings make many of its parents shake their heads at the decision to create a charter school here. The district operates nine neighborhood schools (seven are elementary), a concept that Smith says is deeply rooted in Los Altos and has helped it match services with students' needs. For example, because there are more English learners in some schools than in others, the district can target its language services more efficiently; otherwise, each school's curriculum is mostly the same.

But that's not to say that LASD is without innovation. It is the original home of Khan Academy, the popular online learning site developed by Salman Khan, and it has been a pilot in Khan's expansion into classroom software applications. A Skype learning program connects students with classrooms and people around the globe. And the Los Altos School District has its own private benefactors. On top of the $10,000-per-child revenue from state sources and local property taxes, the Los Altos Education Foundation brought in about $3 million last year, shared among all LASD schools. Much of the money goes to hire more teachers to keep classroom sizes lower. School PTAs also raise money for equipment and extras.

Unlike at charter schools, however, all the private resources benefiting LASD schools get factored into its formula for creating "reasonably equivalent" facilities. For instance, says Cardozo, if the district's PTAs contribute funds to improve a site or pay for a science lab, that money counts as money the district spends. Yet when a charter school purchases a new building, it's not considered in the analysis. Clearly, the state's charter school law did not foresee two wealthy, top-performing entities battling it out.

"They (Bullis) raise on an annual basis almost ten times per capita what families in the very same school district raise in support of LASD," Cardozo points out. "There is a substantial skewing going on.

"Charter laws are supposed to be about improving public education," he says. "It's not a public subsidy to go run a private school."

No one argues that Bullis Charter isn't a good school. Its students score in the stratosphere on state standardized tests. In every grade they learn a foreign language - Mandarin or Spanish - and study drama. The curriculum is integrated so that students have lessons in subjects like reading, math, and science throughout the day - in the classroom, as well as in their art projects and physical education. They design and build things in a fabrication laboratory equipped with a 3-D printer. They take trips to other countries.

Wanny Hersey, superintendent and principal at Bullis, has worked in high- and low-wealth districts around California. "I believe in quality public education for all," she says. What makes the difference in Bullis's program, Hersey says, is that the charter's administrators can hire (and fire) whomever they want and spend money however they see fit, unfettered by union contracts and regulations such as state-mandated textbooks.

"We are nimble," she says. "We can say 'this is great and it's going to meet our needs' and just use the money and make it work."

Hersey, the fast-moving, highly confident head of Bullis since it opened, is herself a point of controversy with LASD parents. Mostly, it's because she is the public face of Bullis. But people point to her salary of more than $250,000 as an example of the excesses that Bullis can afford even while using public money and facilities.

As a charter, Bullis receives state aid of about $6,000 per child, but not the additional $4,000 that LASD gets directly from property taxes, including a local parcel tax. Of course, Bullis more than makes up for the difference through fund-raising, another sore point with LASD parents.

On the Egan campus, the school itself is made of yellow modular buildings arranged in a sort of square around a blacktopped area, with a corridor of classrooms shooting off one end and a building at the front housing the office. Because of the temporary buildings it is often referred to as a "camp school" - and Bullis never wanted to be assigned that space. Originally, Bullis had sought to be housed in the Bullis-Purissima building in Los Altos Hills that the district closed and years later reopened as a district elementary school. Now, both those sites are too small to hold the growing Bullis population. LASD's designation of additional space for the charter school across town from Egan on its Blach Intermediate School campus is the subject of the present dispute.

Bullis sued to keep the district from splitting its allotted space into two locations, arguing it interferes with the charter's K-8 program. (See Bullis Charter School v. Los Altos Sch. Dist. No. 1-13-CV-245684 (Santa Clara Super. Ct.).) But LASD has no K-8 programs, and the court ruled that the district isn't required to reconfigure its existing facilities to accommodate a charter school with a different program.

But the part of the arrangement Bullis objects to most - the reason for the August protest - is that the school district wants BCS to keep only fourth-grade students and above at Blach because its facilities on that campus do not meet state standards for younger children; LASD believes it wouldn't be safe. The district also is limiting the total number of Bullis students in the designated space at both Egan and Blach.

Bullis leaders consider the proposal to be part of the charter's continuing harassment. "This is flat out discrimination on many levels," says BCS board Chairman Ken Moore. "Just because you choose an alternative school in the district, you should not be suffering."

Two of Moore's children attended Bullis, and he has been on the school's board since shortly after its beginning. "I initially thought it would never get off the ground," he laughs. Moore helped lead Bullis through its start-up phase with the idea it would become something more than a copy of another LASD school, which he considered redundant.

Moore has a name that arrives before he does. He is the son of billionaire Gordon Moore, a Silicon Valley pioneer who cofounded Fairchild Semiconductor and Intel Corporation and authored Moore's Law, a backbone theory of the technology industry. Ken Moore runs the Bay Area arm of the family's Gordon and Betty Moore Foundation, a Bullis funder.

Certainly, Moore's presence as Bullis board chairman does nothing to mitigate the school's super-elite image. And yet, he has a commitment to public education in general - perhaps more so than parents who would otherwise opt to send their children to private school.

"I've lived in the district my whole life," Moore points out. "I went to these schools. ... I don't have anything particularly bad to say about the education, it's just that we offer something very distinctly different [at Bullis]. That's why we get so many applicants to our school and we have to have a lottery."

And as BCS attorney Lemmo notes, under current state policy, "Parents get to keep choosing to go to Bullis or not" - the school district can't cap its enrollment.

"Los Altos is giving the school a split offer instead of what the district should do," Lemmo says, "which is change [attendance] boundaries to reflect the population. They haven't adjusted boundaries in ten years."

In the end, Bullis wants a campus to itself. LASD is using all of its schools. And the idea of Bullis taking over one of the district's campuses - and forcing the redistribution of students currently attending there - has fired up Los Altos parents. To them, it feels wrong - the "haves" being taken advantage of by the "have-even-mores."

Bullis families have reported taunting of their children by district kids; others are afraid to wear their school spirit gear in downtown Los Altos, according to Joe Hurd, a BCS board member.

Earlier this year, the Bullis board voted against letting LASD board president Smith attend the school's planning sessions on how to best utilize the space on the Egan and Blach campuses. Smith asserted that they were public meetings, but Bullis officials disagreed and Smith says Bullis Superintendent Hersey threatened to call the police. (Public school boards are subject to the Brown Act (Cal. Gov't Code §§ 54950-54963), but it isn't clear whether the law applies to charter school boards. Bullis officials have said that the school follows the Brown Act.)

The closest thing to détente in the Los Altos school system came at the end of the 2011-12 school year. Smith and fellow board member Mark Goines walked into the multipurpose room at Egan Junior High and prepared for the first of seven scheduled meetings around the district to explain a plan they hoped would end the conflict between Los Altos School District and Bullis Charter School. The weather was warming up, and so were tensions among parents.

For much of the spring, Smith and Goines had been part of a district mediation team that met confidentially with a Bullis team. They had gathered in conference rooms at the Palo Alto and San Francisco offices of Morrison & Foerster, the law firm of Bullis co-counsel Arturo J. Gonzalez Jr. (As an elected official, Smith in particular had been uncomfortable about the confidential nature of the mediation, but for the promise of peace he'd gone along.) Some sessions were facilitated by retired Appellate Justice Richard McAdams, and after several there was a tentative agreement. Now Smith and Goines had to roll it out to the public.

Negotiators had agreed on four existing campuses within the district that would be acceptable choices to house Bullis. The district would build another school to accommodate its own students, replacing whichever campus was assigned to Bullis. There would be a bond measure to fund the new school, and there were high hopes that everyone would support it.

"The goal was to go out to the community and say, 'We solved this,' " Smith says. "We thought people would be very excited about having a new school."

They were not.

The parents of the Los Altos district are very emotionally attached to the neighborhood schools they have. They've bought homes and grown neighborhoods around those schools. PTAs have raised money and spent time improving them. Many LASD parents were willing to work toward passing a bond to build a new school - but only if it went to Bullis, so their own kids could stay put. And because four LASD campuses were possible candidates to be turned over to Bullis, there were four meetings featuring four communities of angry parents.

For their part, Bullis parents wanted something already set in concrete, literally, and not a promise: No new construction.

Since neither side trusted the other enough to give up what they already had for some future plan, the precarious framework from the mediation fell apart. Given the reaction of the parents, the LASD board would not support an agreement that included redesignating an existing site.

But a new group of parents formed to do battle: the Huttlinger Alliance for Education, which supports the interests of existing district students, mostly in litigation. "We saw LASD as the fulcrum, and BCS on one side. No one was on the other side," says parent Noah D. Mesel. Before the mediated plan was abandoned, "I was talking with my youngest child, who was horrified that she would have to leave her school," he said. "I promised her one night at bedtime that I will not let that happen."

Once engaged, the LASD parents did what came naturally: break down the problem. They regularly read and share court filings. They do research and sometimes create spreadsheets to make a point in a meeting. They persuade others. And so the Huttlinger Alliance became a sort of information clearing house for connecting like-minded parents. In May, the alliance held a public forum for everyone in town with an overview of all the litigation. Attorneys hired by Huttlinger - including Audra S. Ibarra of Palo Alto and Mark V. Boennighausen of Los Altos - have filed amicus briefs on behalf of LASD students in two court cases.

From time to time the Los Altos School District Board of Trustees leaves its board room to meet at various schools. Folding tables with name plates are set out to serve as a dais at one end of the room. Most meetings begin in the same way, with the Pledge of Allegiance. But at one such meeting in the summer of 2012 - eight years into litigation with Bullis Charter School - the proceedings were delayed while each member of the school board was served with a lawsuit (never mind that the school district has an attorney of record). The audience waited as a young man distributed papers to everyone seated at the table. When that business was done, then-board president Goines led the audience in the pledge: "... with liberty and justice for all."

Litigation scorecards are kept all over Los Altos. The school district has a page on its website on titled "BCS Litigation," and the Huttlinger Alliance maintains another, "LASD/BCS Facilities Litigation." Anyone who follows the controversy knows the cases like baseball stats.

Observers estimate that the total price tag has crested $5 million. LASD has already spent at least $2 million and budgeted another $1 million in each of the next six years for litigation costs; Bullis, not subject to disclosure laws, isn't saying.

"I've learned a whole lot about the law that I never thought I needed to know," says Bullis board chairman Moore. The charter, he says, is paying its considerable legal costs from the interest off a fund originally intended to finance a school site.

Lately the focus has shifted to LASD's cross-complaint charging that Bullis is not meeting its public obligation to serve all children equally. The outcome could have implications for charter schools across the state, according to Cardozo.

"We assume now that everything we do [as a district] is going to be [put] in front of a judge," says Smith, the LASD board president. "You have to put faith in the legal process if you want to do what's right for the kids."

In September, after Bullis signed the present facilities agreement under protest, both sides agreed to come to the table. Two tables, actually: Representatives of BCS and LASD have formed into two groups, one to discuss short-term issues surrounding the split-campus configuration and another focusing on the long-term problem of housing Bullis Charter School. Meanwhile, the Internet sites in Los Altos are buzzing.

Lisa Davis is a freelance writer and author of The Sins of Brother Curtis: A Story of Betrayal, Conviction, and the Mormon Church. She teaches journalism at Santa Clara University.

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