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Smith v. United States

United States District Court, W.D. Louisiana, Alexandria Division

June 7, 2017

IRMA J. SMITH, Plaintiffs



         This case ostensibly presents an aspect of a now common public issue over the establishment and operation of a charter school and the impact of its existence on a desegregating public school system. Here, the Delta Charter School in Concordia Parish, Louisiana was allowed to organize by consent from this court dated January 4, 2013. Doc. 60. The authorizing order was a consent order and had been negotiated by the school organizers and the Concordia Parish School Board ("Concordia"). However, only months after the school's organization, Concordia saw fit to file a motion with the court alleging that the charter school violated the order in several significant respects. After an extensive period of conversation among the parties, briefing, and preparation, the "Motion for Further Relief (Doc. 68) filed by Concordia came before the court for a three-day evidentiary hearing on Monday, February 13, 2017. Doc. 126. Several last-minute motions were filed by the parties and these were argued on the record in open court and ruled upon contemporaneously. We will recount these rulings as we consider the underlying motion.


         Against the backdrop of this court's desegregation orders for Concordia Parish schools, Delta Charter School ("Delta") sought permission to operate as a Type 1 charter school[1] from Concordia. After consultation with a third-party reviewing agent affiliated with a national charter school association, Concordia declined Delta's application. Doc. 145' p.2. Delta was eventually granted a Type 2 charter by the Louisiana Board of Elementary and Secondary Education ("BESE").[2] Id. In recognition of the existing desegregation order, Delta and Concordia entered into a consent order which was filed with the court on September 7, 2012, and granted on January 4, 2013. Doc. 60. The consent order described the parameters under which Delta would conduct its operations upon opening and ascribed to Delta certain affirmative duties. Id.

         Concordia filed the instant motion in June of 2014, alleging that Delta was already operating in violation of the consent order, seeking an order compelling Delta to abide by the terms of the consent order and requesting that it cease all actions interfering with Concordia's ability to comply with its own affirmative obligations under existing desegregation orders of this court. Concordia's motion also seeks recovery of a kind of penalty or damage in the form of reimbursement for the loss of Minimum Foundation Program ("MFP") funds from Delta. Doc. 68. Specifically, Concordia asserts that, since opening its doors in 2012, Delta has not observed its obligation to restrict its enrollment and to ensure that its student body mimics the racial diversity of the parish within a 10% margin of compliance. Concordia further alleges that Delta's failure to adhere to the obligations of the consent judgment harmed Concordia financially by diverting MFP funds associated with Delta's excess enrollment away from Concordia schools. Id.

         Delta denies that it has violated the consent order. Doc. 70. Delta's brief in opposition disputes Concordia's assertion that the consent order limits Delta's enrollment to a specific number. Rather, Delta views the consent order as summarizing what Delta believed its opening enrollment would be for the 2012-2013 school year. Doc. 70 at p. 4. Delta further denies that it has impeded the ability of Concordia to meet its obligations under the desegregation order. Id. at pp. 5-7. Based on these denials, Delta concludes that Concordia fails to demonstrate that it is entitled to relief and strenuously argues that the relief sought by Concordia's motion is overly broad and not narrowly tailored to any harm alleged. Id., at p. 8.

         Just before the trial, Delta filed its own "Motion for Relief from Order or in the Alternative Motion to Dismiss [Concordia's] Motion for Further Relief. Doc. 145. Delta's motion asserted that, despite Delta's having at all times operated in good faith to fulfill its obligations under the consent judgment, its minority student enrollment remains consistently below the goal of 10% of Concordia Parish School District's (CPSD) minority student enrollment. Based on its assertion of its own good faith and best efforts, Delta asked that the court dismiss Concordia's motion for relief. Doc. 145-1 at p. 3. In supposed support of its position, Delta offered the expert report of Dr. Christine Rossell ("Dr. Rossell"), opining that Delta's operations have had no negative impact on the racial makeup of CPSD schools. Based on this evidence, Delta said Concordia's failure to show any impact on Concordia's ability to meet its obligations under this court's desegregation order is fatal. Id. at pp. 4-5.

         In response to Delta's motion, Concordia and the United States Department of Education ("United States") filed a joint motion in limine to exclude the expert opinion testimony of Dr. Rossell. Doc. 147. Likewise, a prior "Daubert" motion was filed pursuant to Rule 702 of the Federal Rules of Evidence by Delta as to Dr. Genevieve Siegel-Hawley ("Dr. Siegel-Hawley"), a proposed expert witness offered by Concordia. Doc. 139.

         On Day 1 of the February 13, 2017 hearing, the court declined to entertain Delta's motion for relief/dismissal (Doc. 145) on the basis that to do so would constitute unfair and undue prejudice to the remaining parties. The court's ruling was and is based on the fact that the motion was filed on February 10, 2017, a mere three (3) days prior to the long-filed motion and long-noticed hearing. Moreover, the court found that the motion's content, specifically its reliance on the surprise, newly-revealed, expert witness Dr. Rossell, was unduly prejudicial because it purported to rely upon an unacceptably tardy disclosure of the existence of the expert's expert report and expert opinion, which, upon presentation, left the opposing parties NO time to investigate or conduct discovery related to this expert witness or even to respond with briefs regarding her professional opinions. Despite the ruling denying and declaring Delta's motion moot, and excluding her "expert", counsel for Delta proposed that the expert should still be allowed to testify as a rebuttal witness. This request was likewise denied, as Delta was the defendant, not the plaintiff on motion, and would not be in a position to offer rebuttal testimony in any event. Thus testimony from Dr. Rossell was excluded. In this procedural posture, the remaining pending findings were and are properly restricted only to those issues raised by Concordia's motion for relief.

         On Day 2 of the hearing, however, the court accepted Dr. Siegel-Hawley as an expert in the field of school desegregation and the impact of school choice on desegregation efforts. By this result, the court denied Delta's Daubert motion. Doc. 139. At the conclusion of all argument and evidence, the court announced its finding that Delta was not in compliance with the consent order. Additionally, the court found that Delta's compliance with the consent order was, by virtue of its terms and the court's authority to compel compliance as relates to its prior desegregation orders, required. The court then instructed the parties to file briefs regarding the issues of appropriate remedies and the merits of Concordia's theory of monetary recovery. Having received and reviewed all necessary briefs on both issues we now find all issues ripe for decision.


         As detailed above, we have already ruled that, based upon the evidence presented in briefs and at the hearing of this matter, Delta did not adhere to the terms of the consent judgment into which it voluntarily entered in 2013. Its deliberate noncompliance has substantially impacted Concordia's compliance with ongoing desegregation orders, such impact being explained by the courtroom evidence elicited. Moreover, at the hearing, Delta's founder and headmaster testified that all he thought he needed to do to increase enrollment was to get authority from BESE to increase enrollment. That conclusion was clearly wrong in view of the court's original consent order. To make things worse, we note that Delta, while supposedly relying on Louisiana law for its operation, also apparently ignored the enabling provisions of that law. In that regard, we note the following:

1. La. R.S. 17:399land 17:3973 prescribe minimum and maximum percentages of "at risk" enrollment for Type 2 charter schools. The requirements are calculated based upon the number of students enrolled in public schools in the area who qualify for free or reduced lunch. Compliance with these numbers has not been shown in the evidence presented by Delta.
2. Under R.S l7:3993(b)(ii), any student who resides "within the state" shall be eligible to attend a Type 2 charter. See, Cleveland v. Union Parish School Board, 570 F.Supp.2d 858 (W.D. La. 2008).

         Apparently, to facilitate such attendance, Louisiana charter school law permits charter schools to have transportation provided by the local school district, but requires that the charter school reimburse the school district for that cost. La.R.S. l7:3993(D). Delta provides no transportation ...

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