2017-02-09 / News

TA Middle School lawsuit enters final phase

By Wm. Duke Harrington
Staff Writer

ARUNDEL — The fight over who will educate middle school students from Arundel has entered the final phase, even as Thornton Academy (TA) has sweetened the pot by offering parents free tuition for their children.

Meanwhile, a legal decision issued last week partially bounces TA from the case, leaving that portion to parents who joined the Saco-based school’s case against RSU 21, while setting a hearing before York County Superior Court Justice Wayne Douglas for “the first date available after March 31.”

In 2006, about three years after learning its middle school would not meet federal requirements under the No Child Left Behind Act, and deciding it could no longer afford the cost of a full K-8 program, Arundel signed a 10-year contract with TA to teach its students in grades six through eight.

That agreement resulted in the creation of Thornton Academy Middle School (TAMS). In 2009, after Arundel joined with Kennebunk and Kennebunkport to create RSU 21, TA won a lawsuit over school choice, allowing it to keep all Arundel middle schoolers in its system, per the existing contract.

In 2011, voters in Kennebunk and Arundel denied funding for an RSU attempt to buy out the TA contract. Instead, in 2013, the RSU announced it would not renew the deal when it expired on June 30, 2016. At that time, it said, all new sixth graders from Arundel would be required to attend the Middle School of the Kennebunks (MSK).

At a March 7, 2016 meeting attended by nearly 120 Arundel residents, the RSU 21 Board of Directors voted 8-2 to allow Arundel students then in grades 5-8 to pick between TAMS or MSK. However, students then in grade 4 and below would have to attend MSK, the board decided.

According to RSU 21 Superintendent Katie Hawes, “a little less than half” of Arundel students who entered grade 6 in September 2016 chose to remain at TA. The majority, she said, enrolled at MSK.

By that time however, TA had filed suit, joining 12 Arundel families on April 12 to ask that a York County Superior Court justice preserve school choice in perpetuity.

High school students from Arundel continue to enjoy school choice, although the RSU 21 board voted last year to discontinue bus service. That forced TA to join with the Saco school system to provide transportation for Arundel students in grades 6-12.

There is more than students in classrooms at stake. RSU 21, and by extension the taxpayers of Kennebunk and Kennebunkport, have been paying the TAMS tuition for Arundel middle schoolers — about $8,400 per year.

While the district will continue to pay that for students now enrolled at TAMS, RSU 21’s $47.12 million draft budget for the 2017-2018 fiscal year — delivered by Hawes to school board members following Monday night’s business meeting, and due to begin review Wednesday before the board’s finance committee — includes no tuition allowance for any current fifth graders in Arundel who may choose to attend TAMS next year.

According to RSU 21, that’s not an option, as it had previously compelled all Arundel grade 6 students to attend MSK starting with next year’s class.

In its appeal and motion to dismiss in the TA lawsuit, RSU 21 asked Justice Douglas to affirm that it is not responsible for tuition — that TAMS must now be treated as a private school rather than a service contracted by Arundel, making parents who choose to send their children there solely responsible for the cost.

Partly to mitigate concern Arundel parents may harbor over that potential bill, paid on top of their taxes to RSU 21, TA has promised free tuition to all incoming grade 6 students who enroll at TAMS for the fall.

On Jan. 31, TA Headmaster Rene Menard issued the offer in a letter mailed to all homes in Arundel. Residents of Kennnebunkport who share the same zip code also reportedly received the letter.

“The law that provides you middle school choice has not changed,” the letter reads. “Thornton Academy’s Board of Trustees fully anticipates that the law will be upheld and that Arundel families may continue to send their middle school students to TAMS at RSU expense.

The letter goes on to say that, “as an expression of confidence in the law, as well as its commitment to Arundel families,” TA will award “scholarships in the amount of all three years of their enrollment” for any students who enter grade 6 next year at TAMS, despite the RSU 21 assertion they must attend MSK. The free offer is available “should Thornton Academy not prevail in court,” the letter reads.

However, it then goes on to give what appears to be a contradictory promise, stating in text that is underlined in the letter for emphasis, “In other words, families of incoming Arundel sixth-grade students will not be billed for tuition, grades 6 through 8 at TAMS, regardless of the eventual outcome of the legal case.”

In a Feb. 5 interview, Menard said the scholarship offer does very much depend on the outcome of the lawsuit with RSU 21.

“It’s only if the lawsuit gets overturned,” he said. “But we fully anticipate the status quo will remain. The law is clear and there is no compelling evidence that would persuade anyone, in our opinion, that anything will change.

“Therefore, we want families to be confident in their decision to attend TAMS,” Menard said. “We want to assure them that we are here, that we value our relationship with the families, that we intend to honor our commitment to them and that they should not have to worry about having to pay private tuition to attend TAMS.”

Although RSU 21 last year set an April deadline for families to choose MSK or TAMS, Menard said there is no date by which Arundel parents must notify him of their intent to enroll at TAMS next year.

“It’s not about dollars and cents, it’s about doing the right thing for the families of Arundel,” Menard said.

The debate over school choice, which has been at the heart of two separate attempts since 2012 to withdraw Arundel from RSU 21, has been hot and heavy among Arundel residents.

Responding to a request for comment posted to the Facebook group Arundel Chatter, Missy Whall wrote to the Kennebunk Post, sister paper to the Courier, “Promises were made to the families of Arundel residents prior to joining the RSU.

“TA promised that they’d always be there to educate our kids,” she wrote. “The RSU promised that TAMS would remain an option for our kids after the termination of the contract. While this issue awaits a decision from courts, TA should be commended for keeping their word to these families, and eliminating a lot of uncertainty.”

Whall said she has a child who is a freshman at TA and another who, thanks to the free tuition offer, will enroll at TAMS.

On the other side, one person requested anonymity, indicating just how toxic the issue has become through the withdrawal efforts and the current lawsuit.

“I own a small business and have lost enough over this mess, so keep me private, please,” the message reads, going on to say, “What TA has done is in my opinion illegal.

“We never had choice [for middle schoolers] before the [2006] contract, and now it has expired,” the person wrote. “The court needs to rule on this ASAP. How is the [RSU 21] district supposed to make a budget without knowing what kids will be attending MSK? This mess needs to end. It’s gone on way too long.”

Asked following the Feb. 6 school board meeting for her response to TA’s free tuition offer, board chairman MaryBeth Luce, of Arundel, declined to comment.

“Where this involves a case that is currently in litigation, I would prefer not to respond,” she said.

Hawes also declined to comment on Menard’s letter, or any apparent attempt to attract more students to TAMS.

“Our plan is to just stay the course,” she said. “All we can do is focus on what we are doing. About a dozen people, not necessarily parents, or even from Arundel, asked me if I had seen the [free tuition] letter. But I’ve got nothing from a single Arundel parent asking should I go here or there, should I accept this scholarship. Nothing.”

Regarding the lawsuit, Hawes said, “I think we’re on solid legal ground, and I think the board is confident in where we’re going.

“I’m not getting any pushback from families or students about having to attend the Middle School of the Kennebunks next year,” Hawes said. “It’s one of the best schools in the state. People are excited to be there.”

In the legal decision dated Jan. 31 — the same day as Menard’s free tuition letter — Justice Douglas ordered a stay on the first count, seeking his declaratory judgment, until after lawyers on both sides meet to hammer out a “course of proceedings,” with action on TA’s motion for a trial deferred pending the hearing to happen after March 31.

Douglas denied RSU 21’s motion to dismiss the second count, in which TA sought to have the court rule under rules for civil procedure. RSU 21 tried to argue the court has no jurisdiction in that regard, citing lack of authorization in Maine law for independent judicial review of its administrative actions.

Given that “the issues in Count I seem subsumed in Count II,” Dougles wrote, he was “inclined ... to consider the crux of the case — does Arundel enjoy school choice for middle school students — under the civil procedure rules for review of government action, rather than as the original request for his declaratory judgment that RSU 21 “incorrectly interpreted and applied” Maine law in its March 2016 vote.

However, Douglas did agree to dismiss the third count of “equitable estopple,” in which TA argued that even if RSU 21 did not act illegally in its vote to end school choice for middle schoolers starting next year, it should not be allowed to deny public funding for students who choose to attend TAMS anyway, based on past board assertions that choice would remain.

Douglas agreed to dismiss TA from Count III, but not the individual parents who filed suit alongside the private school. Essentially, Douglas ruled that while TA cannot present its case based on past statements of the RSU 21 board regarding school choice, the parents who are party to the suit can.

“The complaint does not assert detrimental reliance on the part of “Thornton Academy” Douglas wrote.

But the number of parents involved in the case, who can use past statements by RSU 21 administrators and board members against it, may be dwindling.

According to Hawes, “Eight of the 12 families who originally filed with TA have pulled out of the suit.”

Hawes said Monday that information came to her in an email from one of RSU 21’s attorneys; however, she declined to share the email, saying it was exempt from Maine’s Freedom of Access Act because it is an attorney letter related to current litigation.

Douglas’ Jan. 31 order actually goes in the other direction, listing 17 individuals and couples, including Whall, as plaintiffs in the suit, alongside TA.

The official filing from April 2016 includes with TA, Ken and Angie Levesque, Pam and Dan Roche, Diane Robbins, Melissa Whall, Nicholas and Michelle Leblanc, Erica and Luke Brochu, Noel and Judite Holmes, Sara-Kate Beaulieu, Jesse and Wendy Carill, Darrel and Meredith Speed, Scott and Jane Lilly and Kevin and Salena MacKell.

The list of plaintiffs in the Jan. 31 order drops the Lillys, but adds Carrie and Jeff Martel, Robert Mills, Mike and Tammy Pelletier, E. Paul Raymond, Kelly and Kyle Shaw, and Michael and Jaye Woods.

Staff Writer Duke Harrington can be reached at news@kennebunkpost.com.

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