UPDATED: Does Libbey HS deal violate state law?

***Updated with Steve Herwat interview on WSPD - see the bottom of the post***

On Tuesday at the Toledo City Council meeting, Deputy Mayor Steve Herwat told the council that the deal to purchase the Libbey High School field house, skill center and football stadium contained a deed restriction: the property could not be used for a charter school.

According to state law, school buildings need to be offered to public schools - including charter schools - before they are torn down. According to Toledo Public School Board member Lisa Sobecki in this news article, they did so:

Before proceeding with demolition, the OSFC requires the district to offer the facility to charter schools for 60 days. Twenty-six charter schools have been contacted; none have shown any interest as of Jan. 31, Sobecki said.

The charter schools have until March 3 to respond. If no charter school is interested in the facility, the district will proceed with requesting proposals for abatement and demolition of the school, Sobecki said.

But the school board reached an agreement with the City of Toledo to preserve part of the property which included a provision to restrict future owners from allowing the property to be used as a charter school - and that's what got the Cincinnati School District into trouble.

On March 11, the First District Court of Appeals ruled against a similar deed restriction the Cincinnati Public Schools had created. From the 1851 Center for Constitutional Law which sued CPS:

CPS attempted to enforce a deed restriction prohibiting the use of school buildings previously owned by CPS for use by a charter or private school. The 1851 Center asserted such a restriction is void by Ohio’s public policy in favor of school choice, and cheats taxpayers of sales revenue from the buildings.

The Court of Appeals decision, authored by Judge Sundermann, states:

“We conclude that the trial court properly determined that the facilitation of community schools having access to classroom space was clear Ohio public policy. And the deed restriction that sought to prevent the use of the property for educational purposes was void as against this clear policy.”

“The Court’s decision upholds a landmark ruling in favor of school choice in Ohio, and against adversarial school districts who attempt to block alternative schools’ right to exist,” said 1851 Center Executive Director Maurice Thompson. “Deed restrictions like the one struck down in this case were devised simply to stop new charter schools from opening in Cincinnati, so that CPS could retain students and protect its state funds. In its brief, CPS compares itself to a ‘gas station’ or ‘hotel’ that has a right to use hardball tactics against its competition. It seems to have forgotten that it’s a public school that exists to educate children, rather than amass revenue.”

The Court further stated: “[w]e are not persuaded by CPS’s argument that the property was not ‘suitable’ for classroom use. This argument is belied by the deed restriction itself, which allows the possibility that the restriction would not apply should CPS itself decide to use the property for school purposes in the future.”

This additional ruling exposing CPS to the loss of millions of dollars in funding from the Ohio School Facilities Commission (OSFC), which requires that school districts follow all state rules related to charter schools, including heeding charter schools’ right of first refusal to purchase all property “suitable for use as classroom space,” in order to be eligible for OSFC funding. The fate of this funding is still in dispute, in a second case brought by the 1851 Center and the Ohio Coalition for Quality Education, pending before Judge Ruehlman in Hamilton County.

So - if the Libbey deal goes forward (and I hope it does not as I don't believe the City of Toledo should be purchasing the property in the first place), members of council had better make sure no deed restrictions on charter schools are part of the agreement.

UPDATED - THURSDAY: In a 7:45 a.m. interview with Brian Wilson on WSPD, Herwat stated that the Libbey agreement will not be in violation of the law, that the city attorneys will make sure that the agreement has no illegalities. He said, "The Bell Administration does not violate the law." He further explained that if the deed restriction was illegal, it wouldn't be in the agreement.

But he didn't say why he originally told council there would be a deed restriction. He then complained that people are talking about what can't be done in the building rather than the 'positive' idea they have for the property. He also said 'there's never enough recreational facilities for kids' and that if the city doesn't take advantage of this opportunity, it will be a pile of rubble and the kids of the community will lose out on the experience of having a positive relationship with adults by use of the site.

Um...sorry, Steve, kids can have positive relationships with adults without the city spending $1 million that it doesn't have.