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D.C. judge strikes down key part of Bowser chancellor review panel lawsuit

September 28, 2018

A D.C. Superior judge dealt what could be a mortal blow to a lawsuit against Mayor Bowser’s advisory panel on recommending a new education chancellor.

On Friday, D.C. Superior Court Judge Anthony C. Epstein met with both parties in the Indiana Ave courtroom for half an hour before declining to award a preliminary injunction to the plaintiffs. An injunction would have stopped the chancellor search while a trial continued, which is key because the advisory panel is scheduled to meet on Oct. 22 to recommend a candidate and the closest trial date available is Nov. 16.

Judge Epstein said the plaintiffs had failed to establish a “causal connection” between the mayor appointing members of other groups to the panel, and the original group being disenfranchised. He noted they could not prove the mayor would choose a different education chancellor because of the mixed membership, “only that it might be different.”

Plaintiff attorney Greg Smith told The Washington Times after the hearing that he was “surprised” by the judge’s decision. When speaking with the two lawyers sent by the Attorney General’s office which represents the city, Mr. Smith said he likely didn’t want to proceed to the trial with Judge Epstein who made it clear he wasn’t likely to change his mind about the panel.

Mr. Smith represents five of the six parents, teachers, and students who filed the August suit pro-bono. He alleges that the mayor violates D.C. Code 38-174(b) which says she “shall...establish a review panel of teachers, including representatives of the Washington Teachers Union, parents, and students (“panel”) to aid the Mayor in his or her selection of Chancellor.”

The panel was formed earlier this summer to advise on the hunt for replacing ousted chancellor Antwan Wilson who resigned under the scandal of breaking his own policy against discretionary transfers to move his daughter into the coveted Wilson High School and skip the waitlist.

Ms. Bowser announced earlier this week that consultant Paul Kihn would replace former deputy mayor of education Jennifer Niles who was forced to resign for secretly helping Mr. Wilson.

On Friday, plaintiff lawyer Greg Smith argued for over 15 minutes to persuade the judge that the word “of” in the statute meant the mayor has a duty to appoint only parents, teachers, students, and union representatives to the board. “If I ask for a glass ‘of’ water, I don’t expect something else,” he said.

Currently, the mayor has appointed seven people on the 19-member advisory panel who fall into some other category, such as a university president or charter school official. Originally the panel had 14 members total, with only one current student and one teacher.

Two weeks ago, Ms. Bowser caved to plaintiffs’ demand for more representation by added two more teachers and students, and one more parent after a previous judge chided her lawyers for arguing that plural use of “students” in the law didn’t mean more than one needed to be added to the panel.

On Friday, Judge Epstein asked if the court ordered the mayor to remove those seven outliers, “how does that help the other members of the panel?”

“Because they make a recommendation and there is a political price to be paid if that’s not followed,” Mr. Smith answered.

Judge Epstein said even if the mayor sided with the outliers instead of the original intended group members, the minority group could issue a “press release” about their treatment to exact a political price.

D.C. Code 38-174 does not require the mayor to adhere to any recommendation from the advisory board when selecting a new chancellor, but it does require her to “consider” their pick, as well “give great weight to any recommendation of the Washington Teachers Union.” The law was written to preserve parent, teacher, and student input on chancellor selection after control over the city’s education system was handed to the executive office a decade ago.

Judge Epstein disagreed that that group’s voice was “diluted” if others joined the board because the panel’s recommendations are “non-binding” and the mayor is free to consult with whomever she’d like during the chancellor selection process anyway.

The judge added not only didn’t it infringe on the intended group’s rights to share the panel with others, but it provided an “opportunity” to “talk to the folks with the mayor’s ear” and try to “influence” their recommendations to the mayor.

Lead plaintiff Valerie Jablow told The Times she wasn’t sure if she wanted seek an appeal for another shot at an injunction.

Several education advocates wrote amicus briefs supporting the case over the past month, including Mary Levy, an influential education researcher, Suzanne Wells, founder of the Capitol Hill Public Schools Parents Association, and the Washington Teachers Union.

The union wrote that last year that when the advisory panel convened before Ms. Bowser hired Antwan Wilson panel members “were thanked for their service, given just one resume, and taken into another room to be introduced to the individual the mayor had selected,” which matches accounts other panel members gave reporters that they were not consulted about Mr. Wilson’s candidacy before his hiring was announced in an emergency press conference.

Union president Elizabeth Davis was a member of last year’s panel, and is also a member of this year’s. Prior to Ms. Bowser adding the two additional teachers after the earlier judge’s order, Ms. Davis told The Times she was “concerned” that the mayor wasn’t considering the teachers the union nominated to the panel as required by law.

Plaintiff Ms. Jablow joked earlier Friday that the suit was “snakebitten” because of a number of setbacks.

The first judge denied their request for a temporary restraining order to pause the chancellor search during the trial. A second judge held a hearing for a case and scheduled another, then recused herself for unknown reasons. The third judge, Mr. Epstein then also faced discussion of recusal after the city’s lawyer David Schifrin revealed he had previously applied for a clerkship position with him but all parties agreed to proceed because Mr. Schifrin had not interviewed or met Judge Epstein prior to the hearing.

Mr. Smith said he would decide whether to appeal the case before the city lawyer’s deadline for filing a motion to dismissal on the 14th of October, a move they intend to take to end the case.

The Attorney General’s office did not immediately respond to requests for comment.

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