Brenda Jones wasn't supposed to have a chance. When her son was arrested last February for having marijuana on campus, Bellaire High School principal Bill Lawson said he had no discretion -- the Level IV offense meant the sophomore would have to go the district's alternative education campus for an entire school year. There was nothing Jones could do about it.
Kirk and Rayette Fulk's son, Drew, was also sentenced to the privately owned Community Education Partners campus on Beechnut in the same marijuana roundup. And he too was looking at the term of 180 school days that CEP had said was so important to the success of its troubled students. It didn't matter how well Drew behaved in CEP. It didn't matter that the sentence would extend past the end of the semester, past the end of the year and into the next school year. This was the Houston Independent School District's rock-solid stand, policy formed to get bad kids out of good schools -- a policy, many say, designed to meet a goal of 2,500 kids directed to CEP for the 2000-2001 school year in a $17.9 million contract.
Except that last Thursday, after six months of legal fighting and scratching and hustling, after refusing to accept the inevitable, after depositions and a trip to the Legislature in Austin, the no-chance, too-bad folks won a big one.
HISD took it in the shorts. Kaye Stripling and company signed a settlement agreement that gets the Jones and the Fulk boys out of CEP's lockdown with its self-paced computers and non-certified staff. They would instead return to their home schools, which they did this past Monday. And HISD would pay their attorneys' fees which totaled $16,000. It's unknown how much HISD spent on the losing legal representation it received from the prestigious firm of Bracewell & Patterson. Taxpayers will get to pick up that tab, too. There were no punitive damages because the Joneses and the Fulks never asked for them. They just wanted to get their kids out of what they saw as an academic wasteland.
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And all they'd have to do in return was promise on behalf of themselves and their heirs never to sue HISD in this matter again.
Game, set and match to the little guys. Make that the relentless little guys.
It all hung on that little matter of discretion. That and the providential use of a tape recorder.
"The case in a nutshell was that before the kids could be removed Bill Lawson had to make two specific findings," says Kirk Fulk, father and one of the two attorneys in the case. "The only problem was, he never did it."
According to HISD's Code of Conduct, the principal must determine one of two things:
The student's presence in the regular classroom program or at the home school presents a danger of physical harm to the student or other individuals; or
The student has engaged in serious or persistent misbehavior that violates the district's Code of Student Conduct. Serious offenses are those that substantially disrupt or materially interfere with the orderly process in the classroom, HISD transportation, the school, or any school-related activity. Persistent shall be defined as chronic or repeated instances of Level II and higher misconduct.
Yet when the Fulks met with Lawson (who unexpectedly resigned his position as Bellaire High principal last week) right after the marijuana incident to challenge whether Drew's offense met the district criteria for "serious misbehavior," they say Lawson told them he did not have to make such a finding.
In a May 31 letter provided to state District Judge Harvey Brown, Lawson insisted he did make a "finding." However, the Fulks had taped the earlier session with Lawson -- and the recording hardly seems to support Lawson's version. In it Lawson says that because they've committed a "Level 4" offense "there's not an option." Later he says: "I don't see I have a choice in the removal." When Kirk Fulk says he is not arguing that his son should not be punished, but he thinks the removal term is too long, Lawson responds: "Length of removal is based on HISD's choice of an AEP (Alternative Education Placement) is a contractual agreement with the Community Educational Partner setting." And Lawson goes on to say that "CEP removal is 180 days." In fact he makes this statement several times during their conversation recorded by the Fulks.
Which becomes all the more interesting because during the subsequent legal proceedings before Judge Brown, HISD asserts the 180 days is not absolute. Which flies directly in the face of all the statements HISD officials and CEP officials and their own literature have made for the last several years, defending their policy of a 180-day placement. Apparently all those statements and documents have been declared inoperative -- at least for the purposes of this hearing.
"If Brenda and I had not taped our conversations with Bill Lawson we would have been screwed," Fulk says.
This wasn't the only hit that HISD took this summer regarding CEP.
Responding to a complaint letter from Brenda Jones, the Texas Education Agency's Billy Jacobs, senior director for the state's Safe Schools program wrote in a June 24 letter that if HISD was frequently putting kids in alternative schools for 180 days, that "there should be policy statements authorizing this practice."
While the Student Code of Conduct talks about punishments for infractions, nowhere does it say that if a student is sent to CEP it will be for 180 days. That's part of the contract between CEP and HISD, a contract is not distributed to parents and students. As Jacobs puts it, questions have been raised "that may indicate a conflict between the approved and published local policy and the requirements of the local district under the agreement."
In his letter, Jacobs also says HISD has been underreporting the actual number of students sent to its alternative programs. "It was discovered that no students were reported enrolled in the Houston ISD's DAEP as continuations from the previous years' assignment." What this may mean is that while figures are gathered for average lengths of stays, instead of counting a previous year's 40 or 80 days, the count is zero-based on day one of the new year. The letter says Stripling is being asked to help straighten out the numbers.
And Jacobs clears up one other little matter. Previously it had been said the average stay for kids in Texas alternative facilities was 25 or 26 days. Actually, Jacobs writes, the state average is 18. Which would make HISD's punishment -- 180 days -- ten times the state average.
HISD's buddy CEP hasn't fared so well this summer, either. Just as school started last week, Dallas ISD Superintendent Mike Moses held students there out of CEP because of a breakdown in contract negotiations. Instead, nearly 700 students were sent to DISD alternative schools.
As reported in The Dallas Morning News, Moses, whose district has been beset with financial problems, wants to trim the $50-million, five-year contract with CEP. He has criticized its academic program and said its enrollment of about 1,000 students at the end of last school year didn't justify its cost. In that article, CEP's chief executive officer Randle Richardson says CEP has agreed to cut costs by at least $3 million, as Moses wants.
Education representatives from Ohio and San Francisco, where CEP is supposedly courting new business, have been making inquiries in Houston. Some of the Dallas school board members have joined the superintendent in questioning CEP's operations. Yet, HISD digs in even further in its support.
An amended contract with CEP will be voted on at a school board meeting August 30, says Heather Browne, HISD spokeswoman. What's on the table can't be released yet, she says.
HISD also has been busy rewriting its code of conduct, something uncovered during the hearing before Judge Brown.
At one point in the hearing, Jones and Fulk say, Brown said that it was clear that HISD wasn't following its own handbook. To which Bracewell & Patterson attorney Merri Schneider-Vogel reportedly replied something to the effect that "Well, your Honor, we're fixing it now; the district is in the middle of rewriting the handbook." Ouch. Talk about things better left unsaid.
Anyhow, the judge asked for a copy of the draft, which now became part of the proceeding. And from a quick reading of it, it appears HISD is densely and pedantically attempting to shore up any nasty loopholes and making it even easier for it to bring in more kids in order to meet its 2,500-students-a-year goal for CEP.
As an example: In the draft version a serious offense might now be a finding that a student had engaged in a Level III offense.
Clearing up that little problem of a formal "finding" the proposed verbiage now reads, somewhat redundantly, "A finding that a student has engaged in any conduct listed under Level IV or Level V constitutes a finding that the student has engaged in serious misbehavior." And the two-point findings that principals like Lawson were previously being asked to make have a line drawn through them in the draft. No need for discretion. Apparently no need for a principal.
OK, yes, board president Jeff Shadwick did write to Brenda Jones that the 180-day period "is not punishment related but academics related." According to the Fulks and the Joneses, this shows the extended term was a contractual accommodation to meet CEP's curriculum preference. HISD's response? "There is no indication in the letter that Mr. Shadwick was writing on behalf of the entire board."
Yes, some internal memos show Assistant Superintendent Faye Bryant sent out a memo to HISD high school principals prohibiting students from leaving CEP and returning to their home schools. "It has come to my attention that some HISD schools are inviting CEP students back to their campuses prior to the end of the 180 day stay at CEP. Students must remain enrolled at CEP for the entire 180 days. You must not enroll any student who has not completed this mandatory stay."
But, says the HISD side in response, Bryant was just trying to stop principals who were bringing back kids to up their average daily attendance numbers and get more money for their schools. This does not mean, they argue, that there was any mandatory 180-day stay.
In a letter to the House Public Education Committee inquiries about CEP and HISD, the reason for the 180-day assignment is restated. The memo is dated March 29.
Yet in its court papers, after arguing at length that the 180-day sentence is justified and legal, the suit asserts that "HISD does not have a mandatory 180-day referral policy." While placements as a rule are for 180 days, "Luis Gavito, the alternative district principal is aware of students whose placement terms have been less."
After the sad day in court complete with Vogel's tactical error, the B&P attorney had to take the case back to the school board. They went into executive session; there were about five of them in there and Shadwick was absent, one onlooker says. One of those in the session was Larry Marshall, who makes $72,000 a year as a consultant for CEP, besides being a board member. He has said on several occasions there is no conflict of interest with him working for CEP because he never votes on CEP matters.
Yet on this date he was in on the executive session. And he could be heard through the door saying he could not vote on this matter, but he could give his input as an individual. He then was heard to advise the board to "put this behind us as soon as possible," the onlooker says.
Well, some people would say Larry Marshall's presence in that executive session was an outrageous conflict of interest. They'd be right, too. But it seems like HISD has done a lot of outrageous, poorly thought out actions since it began waltzing down that path with CEP. Hey, folks, something smells. And like mold and asbestos, HISD can't cover that up forever.
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