WEST LAFAYETTE — West Lafayette schools in two weeks will have to fight off a motion to dismiss from Gov. Eric Holcomb’s state team, who argue that West Side’s case is “merely hypothetical and speculative.”

The schools are challenging the constitutionality of a state law that offers up closed school buildings to upstart charter schools for $1.

In a motion filed Oct. 24, Attorney General Curtis Hill, representing the governor, argued that West Lafayette Community School Corp. was premature in suing the state to protect the district’s investment in Happy Hollow Elementary, a school for fourth- through sixth-graders that closed in January after nearly 60 years of service.

The state’s argument: No charter school has laid claim on Happy Hollow or showed interest in the building at 1200 N. Salisbury St. So there’s no case against the state or the law passed in 2011, according to the state’s motion to dismiss the case.

“This case is not ripe for review as plaintiff has not been affected by the statute and has not proven that it will be affected by the statute in the near future,” the state’s filing reads.

Tippecanoe Circuit Judge Sean Persin initially granted the state’s motion to dismiss on Oct. 27, three days after the attorney general filed it, ruling that “the issue is not ripe for review,” according to court documents.

When West Lafayette schools’ attorneys objected that they weren’t given time or opportunity to respond to the state’s motion to dismiss, Persin reversed his decision on Nov. 5.

A hearing is scheduled for Nov. 25 in Tippecanoe Circuit Court.

Does the court’s first inclination show that West Lafayette schools have an uphill climb on a law that played a key role in the General Assembly’s school reform movement more than a dozen years ago?

“Good question,” Robert Reiling, West Lafayette schools attorney, said.

Reiling declined to speculate about the court’s decisions so far in a case filed in September. But he predicted that whatever happened in the Tippecanoe County Courthouse would not be the last word on West Lafayette’s challenge of the state law.

“Ultimately, the (state) Supreme Court will make the final call,” Reiling said. “I think when we’re done, our chances are good.”

Rocky Killion, West Lafayette Community School Corp. superintendent, has said that no charter schools — or anyone else, for that matter — have emerged, asking about Happy Hollow since West Side’s elementary classrooms move up Salisbury Street hill to the new West Lafayette Intermediate School.

But Killion, a frequent critic of Indiana’s school reform measures, said the district can’t afford to wait for a charter school — public schools created under Indiana law as alternatives to traditional public schools — to try to use the law and spend $1 to get a property the district contends in court documents is worth $6 million.

Among Indiana’s school reform laws is one that requires the Indiana Department of Education to list closed or unoccupied school buildings and giving charter schools a chance to lease the classroom space for $1.

According to the 2011 law, school buildings that remain empty for two years become fair game for charter schools looking to move in. The law says that a charter school, after notifying the state Department of Education, is entitled to lease the building — or buy it, if the school district chooses to sell it — for $1. Charter schools would have up to two years before taking on the space as classrooms.

In 2019, the legislature adjusted the law, requiring schools to notify the state within 10 days of passing a resolution to close or no longer use a school building that had been used for classroom instruction. Charter schools would get 30 days to submit a request to lease or purchase the building for $1.

Killion calls the law a “land grab” that gives school districts little recourse. The district’s lawsuit asks the court to block the law as a violation of the Fifth Amendment by taking property without just compensation.

In the court documents, West Lafayette schools contended that no state money went into Happy Hollow Elementary’s construction when it opened in 1960. The district also say it is financing the lawsuit with money raised through West Lafayette Community School’s property tax referendum approved in 2017.

The state’s motion to dismiss argues that West Lafayette “does not present claims upon which relief can be granted.” The state also argues the Indiana and U.S. constitutions’ “taking clauses” don’t apply to public property and public land by the state from “a public subdivision,” such as a school corporation.

The city of West Lafayette is paying $1.5 million to lease Happy Hollow as a temporary city hall, while the Morton Community Center is renovated into a new city hall. That lease lasts through the end of 2020. What will happen with the building after, the school district hasn’t said.

In September, when West Lafayette schools filed the lawsuit, Republican state Rep. Bob Behning, chairman of the House Education Committee, defended the $1 charter school law. He said the was law designed knowing that charter schools didn’t have the same funding mechanisms to build classrooms that traditional public school corporations have.

Reiling said the school corporation contends public school property is singled out in state law in a way that, say, a public university land isn’t.

“You couldn’t go take a piece of Purdue University that way for $1,” Reiling said. “Why should the state be able to do it to a school?”

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