                                                    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



        1
          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).

                                                            2
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

                                                  3
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


                                                 4
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


                                                  5
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

                                                6
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).

                                                  7
         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.”

                                                         8
       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,

                                                 9
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.




                                                 10
       Respondents’ motions to dismiss, taken with the case, are granted. Banneker’s appeal is

dismissed.




                                                  Anthony Rex Gabbert, Judge


All concur.




                                             11
