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Charter group tells judge it opposes sale by EACS to diocese

The Indiana Public Charter Schools Association told an Allen Superior Court judge Friday morning it would support changes to the state law it feels requires school buildings to sit unused for up to four years.

But when pressed by Superior Court Judge Nancy Boyer on whether the association would be willing to go ahead and let East Allen County Schools sell the former Monroeville Elementary School to the Roman Catholic Diocese of Fort Wayne-South Bend for $189,000, the association said no.

Boyer posed the question to the association’s attorney Paul Ogden about halfway through the 90-minute hearing in two cases involving shuttered elementary schools in both the East Allen County Schools and Fort Wayne Community Schools districts.

In the case involving FWCS, the charter schools sued to stop the sale of the Pleasant Center Elementary School building to the Fort Wayne-Allen County Airport Authority. It was an agreement reached before the changes to the law went into effect but was about to be made official by an airport board vote the day the association filed its lawsuit. The association said the Timothy L. Johnson Academy expressed a desire in the building, but FWCS attorneys said Friday the school has since decided on another property and merely wanted to look at the building to gauge its usefulness.

In the EACS case, the district sued the charter schools association to get a judge to weigh in on whether the district should be allowed to sell the Monroeville building to the diocese, which wanted to use it for educational purposes. Since the diocese has offered to buy the building, no existing charter school has expressed any interest in its use.

At issue is whether amendments to the Indiana law governing the sale of abandoned school buildings mean that vacant classroom buildings have to sit on a waiting list for four years providing charter schools the opportunity to claim them for $1, or whether the districts can sell the buildings under long-held state laws if no existing charter school is asking for them at the time of the sale.

Passed as part of a sweeping charter schools bill in 2011, the legislation says, “charter schools shall have access to unused school facilities owned by school corporations.”

The law, offered by GOP House Speaker Brian Bosma, purported to address situations in which districts were refusing to sell vacant buildings to charter schools to avoid competition. However, only anecdotal evidence from urban areas such as Indianapolis and Gary was offered during the hearings on the bill.

According to the law, unused buildings will be put on a list at the Indiana Department of Education’s website. The unused buildings are to stay on that list for four years. If no charter school wants them during that period, then the districts can dispose of them however they want – selling, transferring or demolishing.

Thirty-two unused school buildings are on the list, such as the administration building for Vincennes Community School Corp. and the old Elmhurst High School.

If a charter school expresses interest in a building on the list, then the district must lease it or sell it to the charter school for $1.

During Friday’s hearing, Boyer asked Ogden about what would happen to the buildings if she were to side with the charter schools in the lawsuits.

“They have to ignore all other offers for the buildings,” Boyer asked. “Your reading says a building lies vacant for four years?”

“Right,” Ogden said.

“You’re saying that they are precluded from a sale for 48 months,” she asked again.

“Yes, that’s why we support a waiver,” he said. “The law is the law. We are confident there will be a waiver.”

The charter schools association has said it would support a change to the law allowing districts to remove the buildings from the waiting list if another viable offer comes up before the building is requested by a charter school.

Attorneys for both districts argued that a plain reading of the statute said that the buildings go on the list until another offer comes up or until a charter school expresses interest in buying or leasing it for $1.

Steven Jackson, attorney for East Allen, said had the legislature meant that the buildings had to stay on the list, the law would have used the word “when” not “if.”

The court cannot add language to a law that the legislature did not provide, Jackson said.

Speaking of the entirety of the statute that has long governed the sale of unused schools, FWCS attorney William Sweet said that no one has argued against the older portions of the statute.

“That is all there to protect the taxpayers’ interest,” he said. “(Ogden’s) argument is that taxpayers have no interest at play.”

Ogden argued that the charter schools are public schools but without the benefit of funds to build or buy school buildings.

After Ogden said again that the association would support a waiver or changes to the law, Boyer asked whether the association would be willing to let the diocese buy Monroeville. If the legislature added a waiver to the statute, the Monroeville sale would be permissible.

After the hearing ended, Boyer said she still wanted an answer to the question.

Ogden and Russ Simnick, president of the Indiana Charter Schools Association, went into the hallway after the hearing to discuss it. Moments later they came back in, flanked by all the attorneys and school officials in both cases.

Boyer asked for his answer.

“No,” he said.

rgreen@jg.net

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