An email I received from Attorney Michael Dean, who is representing the WIVA parents, raises troubling questions about the court's "death penalty" and the role or non-role of AG JB Van Hollen:

... Even if the court is correct that WIVA parents are violating the statute, the proper remedy is to give the school reasonable time to comply with the certification standards.  For example, 50 years ago when courts began finding public schools to be unconstitutionally segregated, they didn’t order the schools defunded and shut down – they identified constitutionally acceptable desegregation standards and ordered the schools to comply. In this case, though, the court of appeals had a serious problem. If it were to order WIVA to comply with applicable certification standards, then it would have had to explain what those standards were to begin with because a school can’t comply with standards unless it knows what they are.  But the court couldn’t identify such standards because there aren’t any. So by ordering the school to be defunded instead of to comply with the law, the court made the problem go away and didn’t have to explain that it was effectively closing a public school for violating standards that don’t exist.

Perhaps even more disturbing, the first time the assistant attorney general (who represented Superintendent Burmaster) asked for the defunding injunction was at oral argument on appeal.  WEAC named Burmaster a defendant in the original action in 2004, and I intervened on behalf of parents in 2005 when she moved for summary judgment against herself. She didn’t moved to realign as a plaintiff, amend the caption, file her own complaint against the school or plead for an injunction – the AG just filed a motion asking the court to find that she was violating the law.  Then, almost 4 years after the case began, the AG showed up at oral argument and out of the blue asked for an order effectively killing the school.  I responded that the appropriate remedy is to order a school to comply with the law, not kill it, but the court ordered the injunction anyway without discussion.  (WEAC did ask for an injunction below, but even they didn’t ask the court of appeals to kill WIVA – that was the AG’s request.)  Thus, if the order stands, the court of appeals has effectively killed a duly created public school with no pleadings, no briefing, no written motion for injunction, and a total of 20 or 30 seconds of discussion at oral argument.

The AG requesting the “death penalty” for WIVA without identifying applicable standards by which it could become “legal” was utterly inappropriate and irresponsible.  Unfortunately, it was not surprising.  Once again, J.B. Van Hollen is simply missing in action, apparently taking no interest in what his associates are doing in his name.  I have no problem with an assistant AG aggressively representing his client.  I do have a problem with an attorney general taking no interest whatever in the implications of his office’s conduct of a high profile, enormously important case.  Because of J.B.’s indifference or incompetence, WEAC and DPI have once again flexed their political muscle, and are a huge step closer to killing a tremendously effective educational innovation.