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Case: 25CI1:17-cv-00569-WAG Document #: 2 Filed: 09/22/2017 Page 1 of 13

IN THE CIRCUIT COURT OF THE FIRST JUDICIAL DISTRICT


OF HINDS COUNTY, MISSISSIPPI

JACKSON PUBLIC SCHOOL DISTRICT BOARD OF


TRUSTEES AND DR. FREDDRICK MURRAY, IN HIS
OFFICIAL CAPACITY AS SUPERINTENDENT,
ON BEHALF OF JACKSON PUBLIC SCHOOL DISTRICT PETITIONER

vs. CAUSE NO.: I]- 5(o q


MISSISSIPPI DEPARTMENT OF EDUCATION;
MISSISSIPPI STATE BOARD OF EDUCATION; AND
MISSISSIPPI COMMISSION ON ACCREDITATION RESPONDENT

PETITIONER JACKSON PUBLIC SCHOOL DISTRICT'S


MOTION FOR TEMPORARY RESTRAINING ORDER AND PRELIMINARY
INJUNCTION WITH NOTICE

The Jackson Public School District Board of Trustees and Dr. Freddrick Murray,

in his official capacity as superintendent, on behalf of the Jackson Public School District

("District" or "Petitioner") file this Motion for Temporary Restraining Order and

Preliminary Injunction . In support of the Motion , the District sets forth the following facts

and law:

FACTS

1. In April of 2016 , the Mississippi Department of Education ("MOE")

conducted a limited on-site audit of the District. Thereafter, in August of that year, MOE

issued a report identifying a number of issues related to student safety, among others.

In response to the audit, JPS created a detailed Corrective Action Plan ("the Plan"),

which is attached to this Motion as Exhibit "A. " The Plan was implemented on

December 15, 2016 , after being approved by MOE. The District aggressively

addressed the issues identified by MOE and set a timeline for completion of its stated
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goals. Most of those timelines required completion of each corrective action within one

calendar year, or less.

2. However, while the District was working to take the actions described in

the Corrective Action Plan , MOE conducted a second full investigative audit which

began in September of 2016 and was completed on July 31 , 2017 . The aud it report

was provided to the District on August 31, 2017 and is attached as Exh ibit "B." It is

approximately 680 pages long .

3. The audit report contained a cover letter which indicated a report would be

made to the Commission on School Accreditation ("Commission") on Wednesday,

September 13, 2017 at 10:00 a.m., eight (8) school days after receipt of the

approximately 680 page report. The District was informed in the cover letter that the

Commission "will determine whether an extreme emergency exists in the JPSD that

jeopardizes the safety, security, or educational interests of the children enrolled in the

schools in the District. In accordance with Miss . Code Ann . 37-17-6(12)(b) , the

Commission will determine if such an emergency situation is related to serious

violation(s) of accreditation standards , or state or federal law."

4. The letter stated that District representatives , including District personnel ,

the Interim Superintendent and the Board Chair would be allowed only forty (40)

minutes to present evidence to the Commission regarding the District's response to th is

approximately 680 page report. Further, if the Comm ission made any

recommendation(s) at this Commission meeting , those recommendations would be

presented to the State Board of Education ("State Board") at its regularly scheduled

meeting set for Friday, September 14, 2017, at 10:00 a.m . The State Board followed the

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same format as the Commission in allowing the District forty minutes to present

evidence in response to the 600-plus page report.

5. If the State Board concurs with the Commission's evaluation that a state of

extreme emergency exists, statutory authority allows the State Board to ask the

Governor to declare a state of emergency at Jackson Public School District under Miss.

Code Ann.37 -17 -6(12)(b) .

6. If the Governor declares a state of emergency in a school district in

response to a request made under Miss. Code Ann . 37-17-6(12)(b) , the State Board , as

allowed by 37-17-6(12)(c) , (13) , (15) , and (17) , may choose from several courses of

action , including but not limited to the following : escrow state funds , override any

decision of the local school board or superintendent or both , assign an interim

conservator or contract with a private entity to administer, manage and operate the

district, grant transfers to students so they can attend other school districts, establish a

conservatorship or abolish the school district and administratively consolidate the district

with one or more existing school districts, reduce the size of the district and

administratively consolidate the parts of the district, and institute retention procedures

regarding the superintendent and board members as to whether or not they will

continue to hold those positions.

7. Specifically, with regard to an emergency declaration under Miss. Code

Ann . 37-17-6(12)(b) , which is the type of emergency that MOE is seeking to declare in

the Jackson Public School District, Section 37-17-13(1) provides that the State Board

has authority to abolish the school district and assume control and administration of the

schools formerly constituting the district, and appoint a conservator to carry out this
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purpose under the direction of the State Board . The current interim superintendent and

the current school board members would be immediately dismissed from service .

Section 37-17-13(1) provides that the State Board shall have all powers held by the

previously existing school board and previously existing school superintendent. Section

37-17-13(3) states that when the district is reconstituted , no board member or

superintendent in office at the time the Governor declared a state of emergency is

eligible to serve in that office for the school district when it is reconstituted, reorganized

or changed after the Governor declares that an emergency no longer exists .

8. On Tuesday, September 12, 2017 , Petitioner requested additional time to

appear before the Commission to respond to the audit report. In the alternative,

Petitioner requested longer than 40 minutes to present evidence at the Commission's

September 13, 2017 meeting . See Exhibit "C." Dr. Paula Vanderford , Chief of the

Office of Accountability, indicated that the September 13, 2017 meeting was a special-

called meeting , and as executive secretary, she did not have the authority to postpone

the meeting or grant additional time on the agenda . Dr. Vanderford also attached a copy

of the procedures for the meeting and highlighted the State Board of Education

approved procedures for the determination of a state of emergency in a local school

district. See Exhibit "D. "

9. According to Accreditation Audit Procedures approved by the Commission

and the State Board and forwarded to the District by Dr. Vanderford on September 12,

2017 , the District's Superintendent was to be given thirty school (30) days from receipt

of the report to respond to any deficiency cited . Those Accreditation Audit Procedures

are attached as Exhibit "E." However, the District was only given eight school days,

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despite its request for additional time to respond. Likewise , the same procedures

require that an exit conference be scheduled between the auditor and the District to

explain the auditor's basis for finding non-compliance. /d. This conference also was not

provided . Additionally, the same procedures require MOE to complete the investigative

audit in three weeks. However, this investigative audit took almost one year to

complete rather than the required three weeks.

10. In its haste to institute state conservatorship proceedings against the

District, the Comm ission went forward with a hearing on September 13, 2017 , to

address the deficiencies purportedly revealed by the 2017 audit report. At the

conclusion of the September 13, 2017 , hearing , the Commission voted to declare an

"extreme emergency situation" in the District and recommend state takeover to the

Board of Education . On September 14, 2017, the Board of Education met and voted to

accept the Commission's recommendation to declare a state of emergency in the

District. The recommendation has now been forwarded to the Governor to declare a

state of emergency and dissolve the District.

11 . In the eight school days it was provided , the District responded-to the best

of its abil ity-to the approximately 680 page report. Among the district's primary

arguments is that the audit does not accurately reflect the condition of the District today.

Because the audit was contemporaneous with the Corrective Action Plan already

prepared and executed by the District, a number of the audit's "findings" describe

conditions existing before corrective action was undertaken. The District has made

exceptional strides in the areas of safety, security, transportation , instruction,

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recordkeeping , facilities, and teacher recruitment since the Corrective Action Plan was

implemented . 1

12. Further, Miss. Code Ann . Section 37-17-5 provides the following :

All controversies involving the accreditation of schools shall be


initially heard by a duly authorized representative of the
commission before whom a complete record shall be made. After
the conclusion of the hearing , the duly authorized representative of
the commission shall make a recommendation to the commission
as to the resolution of the controversies, and the commission, after
considering the transcribed record and the recommendation of its
representative, shall make its decision which becomes final unless
the local school board of the school district involved shall appeal to
the State Board of Education , which appeal shall be on the record
previously made before the commission's representative except as
may be provided by rules and regulations adopted by the State
Board of Education .

The statute quoted contemplates that accreditation controversies will be resolved by a

hearing, where questions can be asked of MOE representatives about the findings

made by the MOE. In a hearing , the District superintendent and board , as well as any

district personnel responsible for the areas cited , can respond to the allegations. The

MOE may contend that the invitation to the Commission meeting to hear the report and

respond is the District's chance to refute these alleged violations. However, neither the

forty (40) minutes nor the eight (8) school days allotted to the District begins to allow

enough time to properly and fully respond to these allegations - the allegations

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For example: (I) the District was reorganized into four Pre-K-12 district areas and hired 14 new principals for the
2017-2018 school year; (2) the District made sign ificant progress correcting the citations that were cited by the
limited audit from April 2016. The District received I ,541 citations and to date I ,487 have been corrected, and
I ,402 have been certified by MOE as late of June 26, 2017. Corrective Action installations and replacements
include: 833 Fire Extinguishers, 28 Water Coo lers, 6 Lavatories, 5 Water Closets, 7 Urinals, 250 Ground Fault
Circuit Interrupters, 400 Exit Lights, and 400 Battery Operated Emergency Light Fixtures; (3) the District reviewed
I 00% of its school board policies; (4) from the 2017 audit, the District has already completed 412 corrections to the
706 citations in the report; and (5) the District purchased 44 new buses with GPS to monitor on-time arrival for the
2017-2018 school year. Bus arriva l time is over 95 percent, according to data collected from GPS technology.

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specifically directed at the superintendent and board and those allegations directed at

other processes and practices in the District. As previously stated, the Commission and

State Board has failed to follow their own audit procedures , which clearly state that "The

superintendent is given 30 school days (from the day of receipt of the report) to respond

in writing to any deficiency cited ."

13. Should an extreme emergency be declared under the process described

in the cover letter to the report, those accused of violations of accreditation standards,

such as board members and the superintendent, face the possibility of being dismissed

from service in their capacities without even a chance to properly challenge the

allegations and give a full response as to whether an allegation is even accurate and , if

accurate, whether it has been corrected or will be corrected in the near future . 2

14. The fact that the audit does not accurately reflect the current state of the

District is pivotal. The State Board is permitted to seek a state of emergency in a local

school district only under lim ited circumstances . Among them , an "extreme emergency

situation ... that jeopardizes the safety, security or educational interests of the children

enrolled in the schools in that district and that emergency situation is believed to be

related to a serious violation or violations of accreditation standards or state or federal

law." Miss. Code . Ann . 37-17-6(12)(b) . The existence of an "extreme emergency"

suggests that conditions at this moment are so dire that the state must intervene. But

many of the conditions on which the MOE based its conclusions do not exist today.

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After the Comm ission's recommendation, but before the State Board 's meeting, the District filed a Verified
Complaint for Inj unctive Reli ef and Motion for Temporary Restraining Order in Hi nds County Chancery Court
seeki ng to prevent the State Board from voting on the Commiss ion's recommendation. The Court ultimately denied
the Motion, the Compla int was mooted by the State Board 's fi nal dec ision that an "extreme emergency" exists in the
District.
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Under Mississippi law, it would be arbitrary and capricious for the Board of Education to

accept the recommendation of the Commission on School Accreditation when that

recommendation is based on outdated data and an incomplete response to the 2017

audit report. Mississippi State Oep't of Health v. Natchez Community Hasp ., 743 So. 2d

973 , 977 (Miss. 1999) ("An administrative agency's decision is arbitrary when it is not

done according to reason and judgment, but depending on the will alone. An action is

capricious if done without reason , in a whimsical manner, implying either a lack of

understanding of or disregard for the surrounding facts and settled controlling

principles. ")

15. Nor do MOE's own actions support its contention that an extreme

emergency exists . More than 17 months have elapsed since MOE issued its first audit

report on student safety issues. MOE then took nearly a year to complete its on-site

audit, and required an additional thirty days to complete its report. Never during that

period has MOE suggested that students in the District were in such grave danger that

emergency action was required .

16. Additionally, the State Board's decision is arbitrary and capricious and

prejudicial to the District as Dr. Paula Vanderford, who presented the MOE case to the

State Board , was allowed to be present during the State Board's deliberations on

September 14, 2017 . However, no one from the District was allowed to be present

during the State Board's deliberations.

LAW

17. The District is entitled to the requested Temporary Restraining Order and

Preliminary Injunction as there exists: (1) substantial likelihood the District will prevail on

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the merits once the District has adequate time to review the supporting documents and

respond to all the allegations in the report; (2) a substantial threat that the District - its

students , its superintendent and board - will suffer irreparable injury if the temporary

restraining order and preliminary injunction are not granted; (3) the threatened injury to

the District - its students, its superintendent and board - outweighs any threatened

harm to MOE; and (4) the grant of the temporary restraining order and preliminary

injunction will not disserve the public interest. See Littleton v. McAdams, 60 So. 3d 169,

171 (Miss. 2011 ). The turmoil caused in the District by an unnecessary declaration of

emergency would irreparably injure the District and its students and create a leadership

vacuum, a situation to be avoided if at all possible . As the situation currently stands,

without the time needed to research and respond to each citation, the District could be

the subject of a declaration of an emergency, creating instability when it may not be

necessary. Allowing the District the full 30 days to respond to the audit report does not

harm MOE but rather ensures that such important Commission and State Board

decisions are made based on the full facts in issue. As to the public interest, the public

interest and, specifically the students of the Jackson Public School District, will be

served by adequate time for school leadership to review the documents supporting the

audit report and respond to the allegations in the audit report.

NOTICE

18. Ms. Erin Myers and Mr. Joseph Runnels, attorneys for the MOE through

the Mississippi Attorney General's Office, have been provided notice of this impending

request for a temporary restraining order and injunctive relief and are being served via

email.

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CLAIM FOR RELIEF

19. Petitioner requests that the Commission on Accreditation, State Board of

Education and the Mississippi Department of Education be restrained from taking up the

matter any further regarding an alleged extreme emergency in the Jackson Public

School District until such time as the District has been given all due process to which it

is entitled under the Accreditation Audit Procedures in order to allow the District time to

review the documents supporting the allegations in the audit report and prepare a

response.

20. Petitioner has exhausted any administrative remedies available,

including seeking a continuance and other relief with the Accreditation

Commission ..

21 . Petitioner requested additional time because the time period

allotted by MOE to the Jackson Public School District to prepare for the hearing

before the Commission on School Accreditation, amounting to eight (8) school

days, is unconscionable, insufficient, and unfair for the following reasons:

(1) MOE has enjoyed the luxury of having nearly a year to complete its
full investigative audit and required an additional thirty (30) days to
complete its report as compared to the District's eight (8) school days to
comment and/or respond to the numerous allegations of accreditation
violations, especially in consideration that MOE's report, in part, attacks
the credibility, governing style, and/or actions of both the superintendent
and school board ;

(2) the Jackson Public School District needed more time than eight (8)
school days to study the audit report's findings, to conduct research to
verify the report's findings, review documents relied upon by MOE, and
prepare its response to MOE's findings, including any supporting
documentation, to allow the school district to formulate a substantive
response to MOE's findings as articulated in its audit report;

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(3) the Jackson Public School District needed more than forty (40)
minutes on eight (8) school days' notice to respond to the numerous
allegations as outlined in MOE's 600-plus page audit report; and

(4) as a matter of fairness, the District should be given the requisite thirty
(30) days to prepare a response to the extensive audit report and present
facts in mitigation.

22 . Further, the District requests a waiver of the security as set out in M.R.C .P

65(c) . The MOE and its divisions are being provided notice of the TRO request. The

District has exhausted its administrative remedies with the Commission/MOE

representatives prior to filing this TRO. Additionally, the MOE is not damaged by a

delay, a delay requested in the interests of fairness in order for the District to provide

complete and accurate information relating to an audit report by MOE auditors. The

District would argue that MOE's interests are served by a delay, so that the Commission

and State Board can make a more fully informed decision.

WHEREFORE, PREMISES CONSIDERED, Petitioner asks that the temporary

restraining order and preliminary injunction be granted to stay any further proceedings

or decisions in this matter so that the District may continue to prepare and review the

supporting documents in order to respond sufficiently to the allegations in the report and

that the security required by Rule 65(c) be waived .

J es A. Keith (MSB No. 354 )


Jo S. Hooks (MSB No. 99175)
KaShonda Day (MSB No. 103144)
Lindsey 0. Watson (MSB No. 103329)
Adams and Reese LLP

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1018 Highland Colony Parkway, Suite 800


Ridgeland , Mississippi 39157
T: 601.353.3234
F: 601 .355.9708
Jim.Keith@arlaw.com
John. Hooks@arlaw.com
KaShonda .Day@arlaw.com
Lindsey.Watson@arlaw.com

And

Joanne N. Shepherd , Esq . (MSB #8598)


Cydney Archie, Esq . (MSB #1 05079)
Jackson Public School District
P.O. Box 2338
Jackson , MS 39225-2338
T: (601) 960-8916
F: (60 1) 973-8545
jnelson@jackson.k12 .ms .us
ca rchie@jackson .k12 .ms.us

CERTIFICATE OF SERVICE

I, the undersigned , hereby certify that I have filed a true and correct copy of the
foregoing motion with the Clerk of Court and have served via electronic mail to counsel
for the Mississippi Department of Education as listed below:

Erin Meyer, Esq .


Joseph A. Runnels , Esq.
emeyer@mdek12 .org
jrunnels@mdek12.org

Special Assistant Attorneys General


Counsel to the Mississippi Department of Education

Dated :September ~. 2017 .

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VERIFICATION

STATE OF MISSISSIPPI
COUNTY OF HINDS

BEFORE ME, the undersigned authority, personally appeared Dr. Freddrick Murray, who
states on oath as follows:

1. I, Dr. Freddrick Murray, am over the age of eighteen (18) and am otherwise competent to
make the statements in this Verification. I am the Interim Superintendent of the Jackson
Public School District.

2. Under penalties of perjury, I declare that I have read the foregoing Motion for Temporary
Restraining Order and Preliminary Injunction and the facts stated in it are true to the best
of my knowledge, information and belief.

Dated this a~t~d day of September, 2017.

SWORN TO AND SUBSCRIBED before me, this the~ :J~d day of September, 20 .

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