As promised, two of the New Orleans schools that stand to lose out under a new method of distributing state education money filed a lawsuit Thursday against the local school board and superintendent.
Lake Forest Elementary Charter School and Lusher Charter School sued the Orleans Parish School Board and Superintendent Henderson Lewis Jr. in federal court just two days after the board affirmed that Lewis has authority to implement the new formula.
Developed by a group of school leaders and other officials, that formula will shift dollars from students labeled as “gifted and talented” to those with special needs — a move backed by advocates for students with disabilities and the overwhelming majority of school leaders in New Orleans.
Lewis sat on the committee that drew up the formula and has backed it publicly.
James Brown, an attorney for Lake Forest and Lusher, reiterated Thursday that he thinks the new method violates the charter contracts under which those schools operate.
He said his clients had decided on litigation with “the greatest of reluctance,” adding, “We were left with no alternative.”
Board members released a statement saying they were reviewing the suit.
Lake Forest and Lusher, both magnet schools with admissions requirements, have so far taken a drubbing in the public debate on the issue. They lost the OPSB vote 7-0, drowned out by dozens of school leaders, parents and students pleading for extra money to help fund services for special-needs students.
The court battle is likely to showcase a more technical dispute concerning the particulars of contract law. In New Orleans, all but a handful of public schools are charters, meaning they operate according to detailed legal agreements with either the OPSB or the state.
In the lawsuit, Brown points out a line in the OPSB’s contracts with Lake Forest and Lusher stipulating that both schools will be funded according to “the provisions of the Minimum Foundation Program formula,” which is a statewide formula approved every year by the Louisiana Board of Elementary and Secondary Education and then the Legislature.
The MFP comes with extra dollars for students with special needs, but it’s not as generous a subsidy as the new formula, and it doesn’t grow based on how severe a student’s disabilities are. It also includes a much bigger bonus for gifted students.
To prevail, the OPSB may have to find some wiggle room within the charter contracts. As one lawyer who spoke before Tuesday’s board vote pointed out, the same provision cited by Lake Forest and Lusher also says they will be funded according to a specific section of state law dealing with charter schools.
And that section of the law was amended last year by Act 467, which created the working group that drew up the new formula in the first place. Lusher had a seat on the committee but got voted down last month, 10-1 with one abstention.
So under one interpretation, the contracts governing Lake Forest and Lusher simply point to a section of state law that defers to the new methodology.
The lawsuit claims that applying changes in state law that took effect in 2015 would “substantially impair the terms and obligations” of contracts that were agreed to in 2011. But the contracts in question also contain language stipulating that wherever the agreements mention state or federal law, the parties will be “bound by any amendments to such laws.”
So far, district officials have not discussed their legal strategy publicly, but OPSB members were careful this week to avoid taking a direct vote on the formula itself, having received legal advice against that. They only affirmed that Lewis has the authority as superintendent to impose the plan the working group came up with.
That could mean a debate about how much leeway superintendents have to differentiate funding among the schools in their districts. State officials have said the MFP is essentially a “block grant” that superintendents can dole out to schools depending on the needs of students at each campus.
In a separate argument, the suit claims that applying one formula to charter schools in New Orleans and another to those outside the parish would violate the U.S. Constitution’s guarantee of equal protection under the laws, leaving the Orleans schools “second class.”
School district officials say there is a compelling state interest for treating New Orleans differently.
They note that charter schools get most of their funding directly from state or local sources. So unlike in most districts, there’s no opportunity for a central office to shift money from one school to another based on where more special-needs students are enrolled. “We don’t have that type of school district anymore,” Lewis told board members Tuesday.
At stake in the lawsuit is not just how New Orleans schools are funded but perhaps the future of how the schools are governed.
The OPSB has been trying to lure schools back to its fold from the Recovery School District, a state agency that took over most campuses in the city after Hurricane Katrina. But it may not be able to continue winning schools back if it doesn’t have a funding formula they deem fair.
Not that losing the suit would be the end of the fight. It might mean only that school officials would take another crack at amending state law in a way that passes constitutional muster.
“The original law had some gray area or confusion in it,” acknowledged Jay Altman, one of the charter leaders backing the formula during this week’s board meeting. “If that law was not good enough, we pass another law that ensures students can be funded according to need.”