Comb v. Benji's Special Educ. Acad. Inc., Civil Action No. 10–CV–3498.
| Decision Date | 15 October 2010 |
| Docket Number | Civil Action No. 10–CV–3498. |
| Citation | 745 F.Supp.2d 755 |
| Parties | Shenitha COMB; Sherita Sims–Cotton; Minnie English; Patricia Neal; Tracey Eaden; Lakeisha Parker; Naomi Flemming; Iris Williams; Beverly Bashir; Brenda Withfield; Kathy Butler; and Demetrius Hawkins, Plaintiffs,v.BENJI'S SPECIAL EDUCATIONAL ACADEMY, INC.; Ron Rowell, Superintendent, Benji's Special Educational Academy; Kay Carr, Member, Board of Managers, Benji's Special Educational Academy; James Holman, Member, Board of Managers, Benji's Special Educational Academy; Earnestine Patterson, Member, Board of Managers, Benji's Special Educational Academy; and Robert Scott, Commissioner, Texas Educational Agency, Defendants. |
| Court | U.S. District Court — Southern District of Texas |
OPINION TEXT STARTS HERE
Berry Dunbar Bowen, Attorney at Law, Houston, TX, for Plaintiffs.
Pending before the Court are Plaintiffs' Amended Verified Complaint and Application for Temporary Restraining Order and Injunctive Relief (Doc. No. 2), Plaintiffs' Motion for Leave to Amend Verified Complaint and Application for Temporary Restraining Order and Injunctive Relief (Doc. No. 7), Plaintiffs' Amended and Corrected Motion for Leave to Amend Verified Complaint and Application for Temporary Restraining Order and Injunctive Relief (Doc. No. 8), and Defendants' Joint Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 5). After considering the parties' filings, all responses and replies thereto, and the applicable law, the Court finds that Plaintiffs' Amended Verified Complaint and Application for Temporary Restraining Order and Injunctive Relief (Doc. No. 2) should be denied, Plaintiffs' Motion for Leave to Amend Verified Complaint and Application for Temporary Restraining Order and Injunctive Relief (Doc. No. 7) should be denied as moot, Plaintiffs' Amended and Corrected Motion for Leave to Amend Verified Complaint and Application for Temporary Restraining Order and Injunctive Relief (Doc. No. 8) should be granted in part as to leave to amend their complaint and denied otherwise, and Defendants' Joint Motion to Dismiss for Lack of Subject Matter Jurisdiction (Doc. No. 5) should be denied as moot without prejudice to refiling in light of Plaintiffs' second amended complaint.
This case arises from the abrupt closure of Benji's Special Educational Academy (the “Academy”), a charter school located in Houston's Fifth Ward, and the resulting disruption upon approximately 500 students and their families. Plaintiffs are parents and guardians acting as next-friends of fourteen students who receive education at the Academy pursuant to Individualized Education Programs (“IEP”) mandated by the Individuals with Disabilities Education Act (“IDEA”), 20 U.S.C. § 1400 et seq. The Defendants are the Academy itself, its current superintendent Ron Rowell, the members of the Board of Managers installed by the Texas Education Agency (“TEA”), and the commissioner of the TEA (the “Commissioner”).
A summary of the events leading to the closure of the Academy is necessary. This summary, except as noted, does not appear to be in dispute. The Academy was granted an open-enrollment charter (the “Charter”) by the Texas State Board of Education (“SBOE”) on November 2, 1998. (Doc. No. 2, Plaintiff's Amended Verified Complaint (“Pl.'s Complt.”), Exh. 1 at 1.) The Charter specified that it would remain in effect from November 2, 1998 through July 31, 2003, unless renewed or terminated. ( Id.) Paragraph 6 of the Charter states that it may be renewed upon “timely application” by the Academy for an additional period of time determined by the SBOE. Upon the Charter's expiration on July 31, 2003, the Academy made a timely application for renewal of the charter. The renewal application has been pending ever since. The TEA has allowed the Academy to continue operating during the pendency of the renewal application. (Pl.'s Complt., Exh. 7 at 3.)
Though the circumstances leading to the current crisis have been unfolding over the last several years, the Court will focus on the events beginning in the summer before the current school year. On July 8, 2010, the Commissioner notified the Academy's then-executive director, Ms. Theaola Robinson, that he intended to appoint a Board of Managers and a new superintendent in light of the ongoing financial, academic, and governance issues with the Academy. (Pl.'s Complt., Exh. 2 and 7.) On August 19, 2010, a “record review” hearing was held to provide Ms. Robinson and the Academy with an opportunity to respond to the Commissioner's intention to appoint a Board of Managers and a new superintendent. (Pl.'s Complt., Exh. 2 at 2.) Ms. Robinson attended the August 19th hearing with her counsel, who allegedly submitted a late-filed closing statement. On September 3, 2010, the Commissioner sent a letter to Ms. Robinson and the members of the Academy's board of directors notifying them that he had decided to appoint a Board of Managers to act as the governing body for the Academy and a new superintendent for the Academy, Rick Schneider. (Pl.'s Complt., Exh. 2 at 1, 4.) Under TEC § 39.112(b), the Commissioner's appointment of a Board of Managers suspended the powers of Academy's board of directors and Ms. Robinson.
One of the Board of Managers' first steps was to post notice on September 10, 2010 of a meeting the Board would be holding on September 13, 2010. (Pl.'s Complt., Exh. 3.) The notice was accompanied by an agenda stating that one of the agenda items was “discussion and possible action on suspending school programs and/or operations due to budget shortfall.” In addition, the agenda stated that the Board would consider the “assignment, reassignment, termination or other action” with respect to the school's superintendent/CEO, administrative staff, instructional staff, and other employees. ( Id.) Notably, neither the notice nor the agenda referred to the possibility of the Academy's permanent closure or the Charter's revocation.
On September 14, 2010, the new superintendent, Rick Schneider, notified students' parents that the Board of Managers had voted the night before to suspend operations of the school effective at the close of that very same day (i.e. September 14th). (Pl.'s Complt., Exh. 4.) This note did not offer the parents any assistance in locating another school for their children other than attaching a list of approximately forty schools in the Houston, Aldine, and North Forest school districts with addresses and phone numbers. ( Id.) Parents were told in the notice that they could pick up their childrens' school records over the next two business days during the hours of 9:00 a.m. and 3:15 p.m. ( Id.) After Thursday, September 16, 2010, parents would have to contact a regional service center to request their childrens' records. ( Id.)
Believing the Board of Managers' suspension of operations to be unauthorized, the Academy's former administration along with several other Academy staff members allegedly engaged in a number of disruptive actions on September 14, 2010. The staff members and former administration allegedly told students to rip up the note from Mr. Schneider to their parents relaying the fact of the Academy's suspension of operations. (Pl.'s Complt., Exh. 5, at 3.) Further, the “former superintendent” allegedly told students during a school assembly that the TEA did not think the students were “good enough” to be at the Academy and wanted to shut down the school for that reason. ( Id.) This person allegedly told the assembled students that he or she would not allow Mr. Schneider to carry out the closure of the Academy. ( Id.) Both during the assembly and during an employees-only meeting that day, the “former superintendent” allegedly stated that he or she would ensure that the Academy would remain open and instructed staff to report to work in the morning as usual. ( Id. at 4.) Next, this person conducted a televised press conference inside the Academy informing the public that the Academy would continue operating despite the decisions of the Board of Managers and Mr. Schneider. ( Id. at 4.)
The following day, September 15, 2010, the Academy reopened as an “unaccredited private school,” using the Academy's facility and school buses. ( Id. at 5.) By this point, Mr. Schneider had resigned his position and been replaced by Ron Rowell as superintendent of the Academy. Mr. Rowell attempted to prepare students' records for distribution to their parents, but was refused access to these records. ( Id. at 5–6.) Staff from a regional educational service center were similarly refused entrance to the Academy. ( Id. at 5.)
On September 16, 2010, the Commissioner issued an order suspending the charter operations and funding of the Academy. ( Id.) TEC § 12.1162(b) authorizes the Commissioner to temporarily withhold funding, suspend the authority of a charter school to operate, or “take any other reasonable action the commissioner determines necessary to protect the health, safety, or welfare of students enrolled at the school based on evidence that conditions at the school present a danger to the health, safety, or welfare of the students.” 1 In his September 16th order, the Commissioner used the actions of the Academy's staff and former administration during the previous two days as the basis for his finding that conditions at the Academy presented a danger to the health, safety, or welfare of the students. ( Id. at 6.) As required by TEC § 12.1162(d), the Commissioner scheduled a hearing for the charter holder on September 21, 2010.
The hearing mandated under TEC § 12.1162(d) was held on September 21, 2010 before the Commissioner's designee, Emi Johnson. In a report to the Commissioner dated September 22, 2010, Johnson stated that the following evidence showed that conditions at the Academy presented a danger to the health, safety, or welfare of the...
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