RICHARD MILBURN PUBLIC CHARTER v. Cafritz

• Citation: 798 A.2d 531
• Decision Date: 23 May 2002
• Docket Number: No. 01-AA-1176., No. 01-AA-1135
• Parties: RICHARD MILBURN PUBLIC CHARTER ALTERNATIVE HIGH SCHOOL, Petitioner, v. Peggy Cooper CAFRITZ, et al., Respondents. and World Public Charter School, Inc., Petitioner, v. District of Columbia Board of Education, Respondent.
• Court: Court of Appeals of Columbia District

798 A.2d 531

RICHARD MILBURN PUBLIC CHARTER ALTERNATIVE HIGH SCHOOL, Petitioner, v. Peggy Cooper CAFRITZ, et al., Respondents. and World Public Charter School, Inc., Petitioner, v. District of Columbia Board of Education, Respondent.

Nos. 01-AA-1135, 01-AA-1176.

District of Columbia Court of Appeals.

Argued December 18, 2001.

Decided May 23, 2002.

Wayne G. Travell, Washington, DC, with whom Douglas R. Kay was on the brief, for petitioner Richard Milburn Public Charter Alternative High School.

George R. Clark, with whom A. Scott Bolden, Edward J. McAndrew, and Richard F. Johns were on the brief, for petitioner World Public Charter School.

Ronald C. Jessamy, with whom Karen J. Miller was on the brief, Washington, DC, for respondent.

Before STEADMAN, FARRELL & WASHINGTON, Associate Judges.

WASHINGTON, Associate Judge:

Petitioners, Richard Milburn Public Charter Alternative High School (Milburn) and World Public Charter School, Inc. (World), seek review of the District of Columbia Board of Education's (Board) decision denying them a trial-type contested case hearing prior to the final revocation of their charters pursuant to the District of Columbia School Reform Act of 1995, D.C.Code § 38-1802.13(c) (2001). The charter schools argue that they have a statutory right to a contested case hearing based on the language of the District of Columbia Administrative Procedures Act (DCAPA), D.C.Code § 1-1509 (1999). In the alternative, they argue that they have a constitutional right to a contested case hearing because only such a hearing will provide them with the procedural safeguards required by the due process clause of the Fifth Amendment. We conclude that neither the DCAPA nor the Constitution entitles petitioners to a contested case hearing.

I.

A. School Reform Act of 1995

In 1996, Congress enacted the District of Columbia School Reform Act of 1995 (School Reform Act), Pub.L. No. 104-134, § 2002, 110 Stat. 1321 (1996) (codified as amended at D.C.Code § 38-1800.02 et seq. (2001)), in order to provide a framework for educational reform in selected areas of the public education system, particularly with respect to providing a process for conferring, renewing, and revoking charters.¹ The public charter schools were seen as a vehicle for increasing educational options for the District's students and parents by providing a more diverse mix of educational programs; testing innovative teaching approaches; promoting community and parent involvement in public education; and dispensing with regulatory and bureaucratic obstacles. The statute allows the charter schools to operate without being subject to the District's education laws and regulations, D.C.Code § 38-1802.04(c)(3)(A) and (B), and to receive funding comparable to that received by the traditional public schools within the system. Id. at § 38-1802.10. Under the statute, charters are conferred by an "eligible chartering authority," one of which is the Board of Education, id. at §§ 38-1800.02(17)(A); a charter may be issued after various statutory requirements are met by the charter applicant. Id. at § 38-1802.03(d).

The School Reform Act sets out requirements with which both the Board and the charter schools must comply once a charter application is approved by the Board and the charter is issued. For example, the public charter schools must submit an annual report to the Board. Id. at § 38-1802.04(c)(11). The annual report includes various forms of data concerning the school's progress in meeting programmatic and financial requirements.² Id. at § 38-1802.04(c)(11). The statute also requires that the public charter schools provide the Board with student enrollment data, id. at § 38-1802.04(c)(12), and a program of education. Id. at § 38-1802.04(c)(14). The Board is responsible for overseeing each charter school's operations, for ensuring that each school complies with the applicable laws and the provisions of their charters, and for monitoring the progress of each school "in meeting student academic achievement expectations" as reflected in its charter. Id. at 38-1802.11(a)(1). The Board may also require a public charter school "to produce any book, record, paper, or document" required by the Board to carry out its oversight function. Id. at § 38-1802.11(a)(2).

With respect to revocations, the statute provides that a charter may be revoked within five years of its conferral when the Board determines that the school has "[c]ommitted a violation of applicable laws or a material violation of the conditions, terms, standards, or procedures set forth in the charter, including violations relating to the education of children with disabilities." Id. at § 38-1802.13(a)(1)(A). With respect to fiscal mismanagement, a charter may be revoked if the school "(1) [h]as engaged in a pattern of nonadherence to generally accepted accounting principles; (2)[h]as engaged in a pattern of fiscal mismanagement; or (3)[i]s no longer economically viable." Id. at § 38-1802.13(b). However, charters may not be revoked during the first five years of a charter school's existence based exclusively on its failure "to meet the goals and student academic achievement expectations set forth in the charter." Id. at § 38-1802.13(a)(2).

The School Reform Act provides procedures that must govern the consideration of a proposed revocation. The Board must provide a charter school with written notice that it proposes to revoke its charter; the notice must indicate the reasons for the proposed revocation; and the notice must apprise the charter school of its right to an informal hearing before a final decision is made. Id. at § 38-1802.13(c)(1). If the charter school decides that it would like an informal hearing, it must make such a written request within fifteen days of receiving notice of the proposed revocation. Id. at § 38-1802.13(c)(2). Upon receiving such a request, the Board must "set a date and time for the hearing and shall provide reasonable notice of the date and time." Id. at § 38-1802.13(c)(3)(A). The notice of the informal hearing must also indicate "the procedures to be followed at the hearing." Id. The Board is required to hold the hearing within thirty days of the charter school's written request. Id. at § 38-1802.13(c)(3)(B). The Board's final decision must be in writing and must be issued within thirty days after the hearing is completed. Id. at § 38-1802.13(c)(4)(A)(ii). The final decision must also indicate the reasons for the revocation. Id. at § 38-1802.13(c)(4)(B). The charter school has the right to judicial review, and the Board's revocation decision "shall be upheld unless the decision is arbitrary and capricious or clearly erroneous." Id. at § 38-1802.13(c)(6).

B. Milburn

Milburn was granted a charter to operate effective July 1, 1998.³ The charter included sections on accountability, reporting requirements and revocation among others, which mirror the various statutory provisions of the School Reform Act. Although the charter did not specifically describe the revocation procedures, it indicated that such procedures will be governed by the School Reform Act.

In a letter dated August 2, 2001, the Board informed Milburn that the Board's Committee on Teaching and Learning planned to hold a special meeting on August 6, 2001, and possibly August 8, 2001 regarding its charter. At the August 6, 2001 meeting, a draft report prepared by a consultant and entitled "Monitoring of the Richard Milburn Public Charter Alternative High School on June 7, 2001" ("monitoring report") was made available to Milburn. The data contained in the report was based on the December 5, 2000 and June 7, 2001 monitoring team visits, and referred to the outcomes of earlier monitoring team visits to the school.⁴

The problems catalogued in the draft monitoring report include the following: little indication that Milburn's Trustees were playing "a viable role as legal and fiduciary agents of the school"; a lack of school books, instructional materials and supplies; poor record keeping with respect to student progress; a lack of documentation identifying students who require special education and related services; a failure to submit an accountability plan to the Board despite the fact that such a plan had been due since August 1998, and had been requested during a December 1999 monitoring visit; a failure to provide information to the Board concerning the school's accreditation process, the provision of which is a term of their Contract; disparities between information in the Annual Report submitted by Milburn for School Year (SY) 1999 2000 and information received during monitoring visits on December 6, 1999 and June 1, 2000, concerning that school year; the unavailability of information concerning contracts; a lack of information as to the use of federal program grants; the submission of a cash management plan that was broad and "lacked sufficient detail to ensure the availability of funds throughout the school year"; and the failure to prepare regularly profit and loss statements. The monitors found that Milburn's failure to submit independently audited financial statements for Fiscal Years (FYs) 1999 and 2000, and the reference to Milburn as a Virginia corporation in its Certified Corporate Resolution for Depositing Authorization rose to the level of "serious" violations of its charter.

At the August 6, 2001 meeting, the Board initially voted to place Milburn on probation rather than propose the revocation of its charter. Several Board members believed that this would be the best course of action since their discussions concerning Milburn had not been as extensive as those concerning World and New Vistas Public Charter School, the other charter schools being considered for revocation; Milburn's infractions were considered less egregious than the other faltering charter schools; and there was concern that the student population at Milburn would have no other alternatives in the event that...