Benjamin Banneker Charter Academy v. Michael Jones

In the
Missouri Court of Appeals
Western District

BENJAMIN BANNEKER CHARTER 
ACADEMY, ET AL.,  WD81967
Appellants,  OPINION FILED:

v.  AUGUST 13, 2019

MICHAEL JONES, ET AL., 

Respondents. 

Appeal from the Circuit Court of Cole County, Missouri
The Honorable Patricia S. Joyce, Judge
Before Division Four: Karen King Mitchell, Chief Judge, Presiding, Anthony Rex Gabbert,
Judge, Timothy J. Flook, Special Judge
Benjamin Banneker Charter Academy, Inc., et al,1 (“Banneker”) appeal a Judgment in favor
of Respondents (the University of Central Missouri (“UCM”), the Missouri Department of
Elementary and Secondary Education (“DESE”), the Missouri State Board of Education (“SBE”),
and individual members of the SBE), on Banneker’s “Verified Petition for Breach of Contract,
Violation of Civil Rights, Declaratory Judgment, and Injunctive Relief.” Banneker claims on
appeal that, 1) the circuit court erred in entering judgment against Banneker on Banneker’s breach
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Appellants include Benjamin Banneker Charter Academy of Technology, Inc., Tracie Thomas, as parent
of and on behalf of A.C., Rosemary Babalola, as parent of and on behalf of P.B., Monnarika Clark, as parent and on
behalf of M.C., Seville Oliver, as parent and on behalf of M.W. II, Jeulanda Floyd, as parent and on behalf of J.J.
of contract claim because injunction was a viable remedy, entitlement to which Banneker
established, 2) the circuit court’s finding that Banneker failed to establish intentional
discrimination was against the weight of the evidence, and 3) the circuit court’s conclusion that
Banneker was not entitled to declaratory relief was contrary to the law and against the weight of
the evidence. We dismiss this appeal as moot.
Background Information
Banneker filed a petition March 14, 2018, alleging that Banneker Charter Academy, in
conformity with Missouri’s Charter School Law, entered into a Charter School Contract with UCM
expiring June 30, 2018. On October 27, 2017, UCM informed Banneker that, upon expiration,
UCM would not renew the contract. Banneker’s petition alleged that, in assessing the renewal of
Banneker Charter Academy’s Charter School Contract, UCM failed to meet its contractual
obligation to base its renewal decision on a thorough analysis of a comprehensive body of objective
evidence as required by Section 160.405.4(6)(b)2 and 5 CSR 20-100.260(8)(A)3 (Count I, breach
of contract claim). Section 160.405.4(6)(b) states that “Student performance shall be assessed
comprehensively to determine whether a high-risk or alternative charter school has documented
adequate student progress. Student performance shall be based on sponsor approved
comprehensive measures as well as standardized public school measures.” 5 CSR 20-
100.260(8)(A) states that sponsors are to use comprehensive academic, financial, and operational
management data to make decisions about renewal and closure. Further, sponsors are to base
renewal decisions on “thorough analyses of a comprehensive body of objective evidence defined
2
All statutory references are to the Revised Statutes of Missouri as updated through 2018 unless otherwise
noted.
3
All regulatory references are to the Missouri Code of State Regulations (July 30, 2017).
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by the performance framework in the charter contract” and “grant renewal only to schools that
have achieved the standards and targets stated in the charter contract, are organizationally and
fiscally viable, and have been diligent to the terms of the contract and applicable law.”
Banneker further alleged that UCM failed to meet its contractual obligations by relying on
Annual Performance Report [APR] scores because, “[a]lthough such scores appear to be a facially
neutral standard to gage [sic] student and school performance, all schools are required to reach a
one-size-fits-all 70% APR ranking to remain viable.” Banneker argued that, “Missouri’s Charter
School Laws as implemented by the SBE, DESE, and the named defendants, treat charter schools
differently than public schools and authorize sponsors to make renewal decisions without
considering whether sponsors are complying with contractual and statutory obligations.”
Banneker alleged that, since 1999, there have been sixty-three charter school districts, with twenty-
one of those having closed “for allegedly inferior performance or operational reasons, thereby
further victimizing ‘high risk’ and ‘at-risk’ charter school students in a disproportionate adverse
manner unlike other students in Missouri Public Schools.”
Banneker alleged that Banneker’s Charter School Contract had no mechanism for
appealing a non-renewal decision based on UCM’s alleged failure to take into account the
comprehensive body of evidence identified by Banneker as necessary for proper review of the
charter renewal. Banneker further alleged that UCM failed to establish procedures to be
implemented for closing the charter school as required by law. Banneker asked the court to enjoin
and restrain Respondents from their actions.
In Count II and Count III of Banneker’s petition, Banneker alleged that Respondents
unlawfully and intentionally discriminated against Banneker plaintiffs and violated their equal
protection rights by, on the basis of race and color and in violation of the Title VI of the 1964 Civil
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Rights Act, excluding Banneker plaintiffs from participation in a program or activity covered by
Title VI. Banneker contended that closing Banneker Charter Academy was discriminatory against
the predominately African American Banneker Charter Academy students, arguing that similarly
situated Missouri students from predominately white public schools did not have their schools
immediately closed and sold, with students being sent to multiple locations, when the districts did
not meet a 70% APR rating.
Banneker alleged that charter schools were created as a direct response to and partial
remedy for racial discrimination and segregation impacting African American students in the
Kansas City Public Schools. Banneker contended:
Despite the legal efforts to fashion a plan to desegregate schools within the
area covered by the KCPS, Missouri’s application of laws and regulations covering
charter schools is nothing more than a continuation of state sanctioned, racially
segregated, schools and school districts within Kansas City and the KCPS. The
Charter School Laws, as applied, are a means to segregate, racially isolate, and treat
African American students in a discriminatory manner because of their race.
Banneker’s petition conceded that Missouri’s Charter School Laws establish facially
neutral academic performance standards by reviewing academic achievement in all public schools
based on five performance standards. These include academic achievement, subgroup
achievement, high school readiness or college/career readiness, attendance rate, and graduation
rate. Statistics are compiled in an APR for each school, and all schools within Missouri are
required to reach a 70% APR ranking score to “remain viable.” Banneker alleged that, while
facially neutral, the Charter School Laws are discriminatory “as applied.” In support of this claim,
Banneker’s petition cites various statutes which Banneker contends show that the Charter School
Laws “provide limited requirements and guidance for charter school sponsors.” Further, that
Section 160.405.4(6)(c) allows charter schools to be required to meet the same performance
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standards as other public schools in Missouri, “even though such schools do not suffer the
existential factors prevalent in charter schools.” Banneker alleged that, use of the same
standardized testing other public schools in Missouri utilize (specifically the Missouri Assessment
Program or “MAP” test) results in racial discrimination when applied to charter schools because a
“one-size-fits-all” approach is racially discriminatory. Banneker alleged that, although charter
schools were created in Missouri to remedy racial discrimination and segregation, since their
inception in 1998, the SBE, DESE, and other named defendants’ application of a “one-size-fits-
all” standard has resulted in 1/3 of all charter schools being closed, “which is clear evidence of the
failure of this so called desegregation remedy.” Banneker contended:
This has occurred without regard to the lingering vestiges of a deliberate and
intentional de jure segregation system maintained for more than a century. This
one-size-fits-all assessment practice has resulted in constant disruption of the
educational environment for ‘at risk’ and ‘high risk’ students in these predominately
African American schools, while preserving the stability and continuity in
predominantly white schools outside the KCPS boundaries.
Banneker alleged that, reliance on standardized test scores for nonrenewal of Banneker’s contract
failed to take into consideration that,
Many students at charter schools … are African American, come from entirely
different backgrounds where poverty, emotional issues, movement from school to
school, and a host of many other existential issues prevail. The first concern of
these students is their safety, while students at predominantly white schools are free
to place their initial focus on learning.
Banneker alleged that, knowing these facts, and knowing standardized tests do not accurately
measure the success of charter schools such as Banneker, the defendants used such scores to
“intentionally weed out and end their charters” and, as a result, their actions and inactions were
intentional, race based discrimination. Banneker alleged that, because the Charter Laws allow for
closure of a charter school when a sponsor chooses not to renew a charter, and traditional public
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schools with no sponsors are not subject to the same closures, the Charter Laws violate equal
protection.
Banneker asked the court to issue a declaration that the defendants engaged in unlawful
and intentional discrimination, issue an injunction, and “such other relief as the Court deems just
and appropriate.”
Count IV of Banneker’s petition alleged that Banneker was facing loss of its charter which
would result in damage to students moved to schools they did not want to attend, with available
alternative schools insufficient to foster the success of Banneker Charter Academy’s students.
Banneker requested a preliminary injunction “to preserve the status quo pending resolution of this
action,” and also a permanent injunction. Banneker requested the court “issue an injunction,
restraining order, and other relief, and ordering Defendants to stay all further action, provide
continued funding to Banneker, require UCM to act as sponsor, and allow Banneker to operate for
the summer school classes, and further allow Banneker to operate for the upcoming school year.”
On June 21, 2018, the circuit court entered Judgment in favor of Respondents on all counts.
The court identified Banneker’s claims for relief as seeking “declaratory judgment respective to
the various alleged violations and injunctive relief allowing the school to continue operating.” On
the breach of contract claim, the court found that the remedy sought by Banneker – to continue the
contract beyond the date of termination through an order requiring its renewal – was a remedy
unavailable to the court. The court noted that the remedies available for breach of contract claims
are typically monetary damages and specific performance. On the civil rights claims, the court
found that Banneker presented no evidence that UCM’s decision not to renew the charter
agreement was the result of intentional discrimination, or that the State administered Missouri’s
Charter School Laws in an intentionally discriminatory manner. The court found that the State
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presented unrebutted testimony that the Charter School Laws are applied equally throughout
Missouri to all charter schools, and that the testing and assessment standards were reviewed and
approved by the Federal Government. Regarding Banneker’s claim for declaratory judgment and
injunctive relief, the court found that Banneker failed to establish that Respondents violated
Banneker’s rights. Further, the court had no authority to compel any entity to enter into a contract,
and no authority to enter an order in violation of the law. This appeal follows.
Analysis
Banneker asks this court to review whether the circuit court erred in determining that an
injunction was not a viable remedy for Respondents’ alleged breach of contract, whether the
court’s finding of no intentional discrimination was against the weight of the evidence, and
whether the court erred in finding Banneker not entitled to declaratory relief.
“In any appellate review of a controversy, a threshold question is the mootness of the
controversy.” Grzybinski v. Dir. of Revenue, 479 S.W.3d 742, 745 (Mo. App. 2016). When the
question presented seeks a judgment that would have no practical effect on an existing controversy,
the matter is moot. State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo. App.
1998). In determining mootness, the appellate court may consider facts outside the record. State
ex rel. Monsanto Co. v. Pub. Serv. Comm'n of Missouri, 716 S.W.2d 791, 793 (Mo. banc 1986).
“When an event occurs that makes a court’s decision unnecessary or makes it impossible for the
court to grant effectual relief, the case is moot and generally should be dismissed.” In re Sw. Bell
Tel. Co.'s Proposed Revision to Gen. Exch. Tariff, P.S.C. Mo--No. 35, 18 S.W.3d 575, 577 (Mo.
App. 2000) (internal quotation marks and citations omitted). An actual controversy susceptible of
some relief must exist in order for this court to have jurisdiction. State ex rel. Mo. Cable Television
Ass'n v. Pub. Serv. Comm'n, 917 S.W.2d 650, 652 (Mo. App. 1996).
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There are two narrow exceptions to the mootness doctrine which allow an appellate court
to exercise its discretion to consider an appeal. State ex rel. Peters-Baker v. Round, 561 S.W.3d
380, 394-385 (Mo. banc 2018). Those are, 1) where the case becomes moot after submission and
argument, and 2) where the issue raised is one of general public interest and importance, recurring
in nature, and will otherwise evade appellate review. Id.
On June 30, 2018, approximately one week after the circuit court entered its Judgment, the
charter contract between Banneker and Respondents expired. The parties concede that Banneker
Charter Academy closed and the school building was sold. The only remedial relief Banneker
sought from the circuit court was an injunction. Given that Banneker Charter Academy has closed,
an injunction, even if a viable avenue for relief at the time the court entered judgment, would now
be ineffectual. It would be impossible for this court to enjoin Respondents from closing Banneker
Charter Academy. See Byrne & Jones Enterprises, Inc. v. Monroe City R-1 School District, 493
S.W.3d 847, 856 (Mo. banc 2016).
We disagree with Banneker’s contention that Banneker’s request for “such other relief as
may be proper” was a claim for damages that precludes mootness. On appeal, Banneker does not
contest the court’s finding within its Judgment that Banneker sought only injunctive and
declaratory relief, and Banneker makes no claim the court erred in failing to sua sponte recognize
and provide “other relief” not expressly requested.4
4
In arguing on appeal that an injunction forcing UCM to contract to be Banneker Charter School’s sponsor
was a proper remedy for all Counts in the petition, Banneker states that “in the present case, no remedy at law would
have provided Appellants with any relief…. Clearly, monetary damages could not fulfill the fundamental purpose of
keeping Appellant Banneker operating as a charter school thereby allowing its students, including the named student
Appellants, to continue to attend the school.” Banneker argues that, “a judgment by this court would clearly have a
practical impact because Banneker could resume its role as an active charter school and the rights of students and
parents would be redressed.”
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Neither exception to the mootness doctrine is applicable here. This case was moot prior to
submission and argument. Banneker argues that the public interest doctrine is implicated because,
“given the number of charter schools in the State, the breaches that occurred with regard to
Banneker’s charter school contract as well as the issue of how the charter school statutes will be
applied to other schools comprised of at-risk students are issues that will recur.” We disagree.
Breach of contract claims are typically fact specific to the contractual parties. If similar issues
were to arise in other charter schools in Missouri, those schools and their sponsoring entities would
have an opportunity to pursue appropriate legal action specific to the issues raised.
In Hope Academy Corp. v. Missouri State Board of Education, 462 S.W.3d 870, 876 (Mo.
App. 2015), we reiterated our holding in State ex rel. School District of Kansas City v. Williamson,
141 S.W.3d 418, 425 (Mo. App. 2004), that, nowhere in The Charter Schools Act is a sponsor or
charter school granted any right to renewal. We noted that our legislature had expressed a
“legislative intent not to impose such criteria upon the sponsor’s decision or to grant the charter
school any right to renewal of its charter.” Hope Academy, 462 S.W.3d at 876. “Pursuant to the
Charter Schools Act, both the Board and DESE are utterly absent from a sponsor’s decision not to
renew a charter.” Id. In rejecting Hope Academy’s claim that the SBE and DESE had authority
to reverse Hope Academy’s sponsor’s nonrenewal decision, we suggested the possibility of
declaratory relief against the sponsor related to terms of the original agreement. Id.
Banneker asserts that it seeks exactly what Hope Academy suggested – redress for
contractual violations by UCM. Yet, Banneker did not request declaratory judgment with regard
to its contractual breach allegations; Banneker only requested injunctive relief. Further,
declaratory judgment typically cannot be invoked where an adequate remedy already exists or
where administrative remedies have not been exhausted. See Snelling v. Kenny, 491 S.W.3d 606,
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615 (Mo. App. 2016); State of Missouri ex rel. Ideker, Inc. v. Garrett, 471 S.W.3d 743, 747 (Mo.
App. 2015). Here, while the SBE and DESE may have had no authority to reverse or compel
contract renewal, they had authority to review compliance with contractual terms and there is no
indication in the record that they failed to do so or were notified, prior to suit being filed, of
Banneker’s specific contractual grievances. Section 160.400.17(1) states that the SBE shall ensure
each sponsor is in compliance with all requirements under Sections 160.400 to 160.425 and
167.349. Section 160.400.17(1) further states:
The state board shall notify each sponsor of the standards for sponsorship of charter
schools, delineating both what is mandated by statute and what best practices
dictate. The state board shall evaluate sponsors to determine compliance with these
standards every three years. The evaluation shall include a sponsor’s policies and
procedures in the areas of charter application approval; required charter agreement
terms and content; sponsor performance evaluation and compliance monitoring;
and charter renewal, intervention, and revocation decisions. Nothing shall preclude
the department from undertaking an evaluation at any time for cause.
Section 160.400.17(2) provides that, after evaluation, if the DESE finds a sponsor in material
noncompliance with its sponsorship duties, the sponsor shall be notified and given reasonable time
for remediation. If remediation does not address the compliance issues, a public hearing shall be
conducted. Id. Resulting corrective action may include suspending the sponsor’s authority to
sponsor a school. Id. In such cases, “the Missouri charter public school commission shall become
the sponsor of the school.” § 160.400.17(4). Hence, there appears to be a mechanism within the
statutes for review of contractual violations with regard to charter renewal, and also a mechanism
for sponsorship transfer upon a determination that a sponsor has failed to take corrective action.
Nothing within Banneker’s pleadings suggests that the SBE or DESE failed or refused to comply
with this statute.
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Respondents’ motions to dismiss, taken with the case, are granted. Banneker’s appeal is
dismissed.
Anthony Rex Gabbert, Judge
All concur.
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