STATE OF COLORADO

							                               STATE OF COLORADO
                            STATE BOARD OF EDUCATION

                                        Case No. 07-CS-02

________________________________________________________________________

IN RE THE DECISION OF THE BOARD OF EDUCATION OF RE1 J GUNNISON
WATERSHED SCHOOL DISTRICT TO DENY THE CHARTER APPLICATION OF
LOUDEN MULLIN CHARTER SCHOOL
________________________________________________________________________

                CHARTER APPLICANT’S OPENING BRIEF
________________________________________________________________________

       Louden Mullin Charter School (“LMCS”) submits the following opening brief in

support of its appeal in this matter:

                  I. INTRODUCTION AND STANDARD OF REVIEW

       LMCS submitted a charter application to Gunnison Watershed School District

RE1J (the “District”), and the board of education of the District (the “Gunnison Board”)

has denied the application. The Charter Schools Act gives the Colorado State Board of

Education (“State Board”) appellate authority in charter school appeals. C.R.S. § 22-

30.5-108. In a first appeal such as this the State Board must determine whether the

decision of the Gunnison Board to deny LMCS‟s charter application was contrary to the

best interests of the pupils, school district, or community. C.R.S. § 22-30.5-108(3)(a). If

so, the State Board shall remand the decision to the Gunnison Board for reconsideration

and give the Gunnison Board specific recommendations concerning the matters requiring

reconsideration. Id.
                                          II. FACTS

A.      Undisputed Facts.

        1.      On October 6, 2006 LMCS submitted a charter school application to the

District.

        2.      The District‟s Advisory Accountability Commitee reviewed the

application and submitted a report to the Gunnison Board.

        3.      On December 4, 2006 and December 11, 2006 the Gunnison Board held

public hearings concerning the application.

        4.      On December 18, 2006 the Gunnison Board denied LMCS‟s application.

B.      Disputed Facts.

        LMCS is unaware of any disputed facts.

                                      III. ARGUMENT

A.      LMCS is Not a Conversion of Sage Mountain School.

        The District‟s first ground for denial of LMCS‟s application is an assertion that

the school will be a conversion of a private school called Sage Mountain School

(“SMS”). The District makes this assertion in the face of assurances to the contrary from

both LMCS and SMS.

        SMS is a private school located at 114 North Boulevard Street in Gunnison. The

school is operated by a Colorado non-profit corporation called “The Sage Mountain

School, Inc.,” which owns all of its assets. On November 30, 2006 Bill Young, President

of SMS‟s board of trustees, sent a letter to the District that states:

        The Sage Mountain School Board of Trustees intends to continue our
        commitment to independent, alternative education in the Gunnison Valley.
        We have every intention of continuing our operations, regardless of the




                                               2
       outcome of the Louden Mullin Charter School proposal. We believe that
       there will be a continued need for what we offer to this community.

Rec., pg. 267

       There is absolutely no reason to believe that Mr. Young is a liar. Therefore, since

SMS will continue to operate even if LMCS opens, it is logically impossible for LMCS to

be a conversion of SMS.

       In the face of the logical impossibility of its position, the District nevertheless

continues to cling to its assertion that LMCS will be a conversion of SMS. LMCS will

respond to each of the points the District raised in its denial:

       1. Hearsay Statement About SMS Board Instruction. Despite the fact that SMS‟s

board of trustees gave the District written assurance that it intended to continue to

operate, the District relies on an alleged oral representation that SMS‟s board of trustee‟s

“instructed” LMCS to apply for a charter. First, SMS‟s board of trustee‟s has no

authority to instruct LMCS to do anything. They are completely separate organizations.

Secondly, even if there were such an instruction, it has no bearing on the “conversion”

issue, because SMS will continue to operate; it will not be converted into LMCS.

Therefore, even assuming for the sake of argument that such a statement was made,

telling LMCS to apply for a charter for itself, is not, as the District appears to assume, the

same thing as telling LMCS to apply to convert SMS into a charter school. LMCS is a

completely stand-alone organization. Finally, there is simply no reason for the District to

utterly disregard Mr. Young‟s November 30 letter, as it must do in order to rely on this

hearsay statement to support its position.




                                               3
       2. Administration and Staff. The District asserts that LMCS‟s administration and

staff will be drawn from SMS. Again, this is counter to the written assurances given to

the District. LMCS‟s materials state:

       In staff recruitment, the application does state that Louden Mullin Charter
       School intends to explore local residents as candidates first. This is
       reasonable, given Gunnison‟s wealth of qualified educators and our
       commitment to supporting this community. While it is certainly possible
       that qualified steering committee members (both employees of SMS and
       those who are not employed by the school), may choose to apply for any
       openings at Louden Mullin Charter School, there is no State law to
       prohibit them from doing so, nor any guarantee that they would be
       the best candidates for the positions. One cannot make the assumption
       that steering committee members would or would not choose to remain at
       Sage Mountain School.

       As stated in „Attachment E‟ of the letter sent by the Louden Mullin
       Charter School Steering Committee to the Board of Education on
       November 30, 2006, „No staff has been hired; LMCS employees will be
       selected through a fair and equitable hiring process. Although there
       are SMS teachers serving on the steering committee, there is no
       employment guarantee to those teachers. All individuals serving on the
       steering committee are involved in this effort as supporters of having an
       accessible school of choice in this community. In addition, the Director of
       SMS is serving on this committee with no intention of pursuing the
       Director position at LMCS.

Rec., pg. 168 (emphasis added).

       What more assurances could LMCS possibly give to the District. The

administration of LMCS will definitely be different from that of SMS. No SMS teacher

has any employment guarantee. It is simply not the case that LMCS has committed to

hire any SMS employee, much less all of them.

       3. SMS‟s Students. The District asserts that LMCS‟s enrollment will be limited

to SMS students. This assertion is contrary to LMCS‟s enrollment policy, which plainly

states that with the exception of founding families and staff children, every student in the

District will have an equal opportunity to enroll in the school. Absolutely no enrollment



                                             4
preference will be given to any student based upon their prior attendance at SMS.

Moreover, under federal guidelines, even the “founding families” exception is limited to

no more than 10% of total enrollment, which is LMCS‟s case would mean a total of 3 set-

asides. The enrollment policy states:

       Enrollment Policy
       Enrollment will be open to the community and consistent with State and
       Federal Law. We will begin accepting enrollment applications following
       the recruitment period (mid-February), and will accept applications for
       thirty days. Upon the deadline for applying, Louden Mullin Charter
       School will determine whether a lottery is necessary. In the event that
       there are more applications than enrollment openings, Louden Mullin
       Charter School will conduct a lottery to identify admitted students and
       prioritize a waiting list. We anticipate a limited number of exceptions to
       the lottery on behalf of founding families, per Federal guidelines. An
       initial definition of founding families is as follows: Families involved in
       the creation of the Louden Mullin Charter School in a leadership capacity.
       Louden Mullin Charter School staff and faculty will also have priority in
       the lottery, should the school be oversubscribed.

Rec., pg. 68-69 (emphasis added).

       LMCS assured the District that “nowhere in the application is any reference made

to preferential treatment for Sage Mountain School students to be admitted to Louden

Mullin Charter School – therefore it is not a conversion from private to charter school.

As stated in the Enrollment section of the application . . . enrollment will take place via

a well-advertised and transparent public lottery.” Rec., pg. 167 (emphasis added). “It

will be a public lottery in the purest sense.” Rec., pg. 192. The District‟s assertion that

SMS students have locked up the spaces at the school is not supported by the slightest

evidence.

       4. Facility. The District asserts that the application does not identify a facility.

This is flatly false. Several potential sites are disclosed in the application. Rec., pg. 34.

As is almost always the case for charter schools, LMCS has no facility “locked up.” The



                                              5
steering committee specifically informed the District that it was going to “hold off” on

securing a site until after the charter had been granted. Rec., pg. 175. However, LMCS

welcomes a conditional contract that gives it until a date certain to lease a facility after it

does receive a charter. Rec, pg. 195.

        5. Equipment. The District asserts – again contrary to Mr. Young‟s assurance

that SMS will remain open for operations – that LMCS intends to take over SMS‟s

equipment. There is no such agreement in place; nor could there be as SMS intends to

continue operating.

        6. Educational Program. The District asserts that LMCS‟s educational program

will be “identical” to SMS‟s program. This is not true. As the application clearly

indicates, LMCS proposes an “Expeditionary Learning Program.” SMS is not an

expeditionary learning school. SMS has some elements of an EL program; however, its

program incorporates elements of Reggio Emilia, Waldorf, Montessori, Logan highly

gifted and talented program, and the Slater River School program, among others. Rec.,

pg. 167. Thus, the District‟s assertion that the two schools‟ programs are identical simply

does not bear up under scrutiny.

        7. Governing Board. The District notes that seven of the nine members of LMCS

steering committee are associated in one way or another with SMS, to which LMCS

responds, “so what?” The law prohibits converting a private school into a charter school.

The law does not prohibit parents associated in some capacity or another with a private

school from submitting an application to form a completely separate charter school.




                                               6
B.      The School Has Proposed A Sound Budget.

        The District asserts the school has not proposed a sound budget. Again, the

District misses the mark. The school‟s budget is set forth on pages 187 to 188 of the

record. It clearly provides for all aspects of the school‟s operation. If anything, the

budget is conservative. LMCS is confident it will be able to supplement its PPR revenues

from other sources. Many members of LMCS‟s steering committee have been involved

in successful educational fundraising efforts. Rec, pg. 200. The District‟s conclusory

assertion that the budget is unworkable is also belied by the fact that the budget is based

upon the experience of Marble Charter School, an operating charter school that is similar

in size and demographics to LMCS‟s proposed program. Rec., pg. 201. Note that with a

school of only 36 students, it is not feasible to hire a separate special education teacher.

That is why there is no separate “special education” line item in the budget.

C.      LMCS’s Educational Program Meets All Statutory Criteria.

        Finally, the District asserts that LMCS‟s proposed educational program does not

meet the statutory application criteria. This is not the case. On pages 14 to 28 of the

record the school summarizes its educational program. Contrary to the District‟s

assertion, that summary includes a plan for curriculum (pgs. 14 to 23) and assessment and

corrective action (pgs. 25-26). It is difficult, if not impossible, to respond to the District‟s

broad “it just isn‟t good” enough grounds for denial. Perhaps if the District would care to

identify specific deficiencies instead of making sweeping generalizations LMCS could

provide a more meaningful response.




                                               7
D.     There is a Need for Educational Choice in Gunnison.

       In 2001 the Gunnison Board rejected a K-8 charter school proposal. Rec, pg. 46.

At that time the State Board directed the District to address the need for educational

choice. Id. In the six years since that time the District has not complied with the State

Board‟s direction, instead continuing to opt year after year for a “one size fits all”

approach to education. In the mean time the need for educational choice has gone

unaddressed.

       As the Gunnison Country Times stated in a December 14, 2006 editorial, “the

demand for some type of alternative education in Gunnison is real, not fully met, and not

going away.” Rec, pg. 232. This conclusion is also supported by the petition from over

400 Gunnison Valley citizens submitted in support of this small 36 student school. Rec,

pg. 215. That is why the disinterested editorial board of the Times urged the Gunnison

Board to either approve the charter now with the condition that any continuing problems

be worked out, or at the very least continue to work with the applicants to ensure a

successful application next year. Rec, pg. 232.

       In conclusion, the State Board should consider the size and scope of the proposed

school while reviewing the application. Perhaps there are areas of the application that

could be improved upon. But it is simply too much to ask volunteer parents for a

proposed 36 student school to submit an application with the same level of detail and

sophistication as a large urban or suburban school. Such an expectation would make it all

but impossible to start a small charter school.

       In light of these considerations, the LMSC is in fact quite good, and serves as the

basis for a sound school if only the District would cooperate in making this school first a




                                              8
reality and then a success. Before that happens, however, it is apparent that the parties

need some direction from the State Board in the form of instructions on remand.

Therefore, LMSC respectfully urges the State Board to remand the Gunnison Board‟s

denial of its application with instructions to reconsider whether it is appropriate to

continue to deny even a minimum of educational choice (after all, the school is only 36

students) to the parents of the District.

Respectfully submitted this February 1, 2007.

ARRINGTON & ASSOCIATES, P.C.

       /s/ Barry K. Arrington
By: __________________________
    Barry K. Arrington
    5310 Ward Road, Suite G-07
    Arvada, Colorado 80002
    Voice: (303) 205-7870
    Fax: (303) 463-0410
    Attorney for Appellants

                               CERTIFICATE OF SERVICE

       The undersigned certifies that on February 1, 2007 a true and correct copy of the
foregoing was emailed to:

David A. Price, Esq.
Director\Lead Counsel
CASB – Legal Services Program
200 Grand Avenue, Suite 315
Grand Junction, Colorado 81501
dprice@casb.org

/s/ Barry K. Arrington
_________________________
Barry K. Arrington




                                              9