STATE OF INDIANA	)		IN THE CIRCUIT COURT OF KOSCIUSKO 
COUNTY
				)  SS:
COUNTY OF KOSCIUSKO	)		CAUSE NO. 43C01-0310-PL-731

CONCERNED CITIZENS FOR QUALITY	)
EDUCATION, INC., an Indiana not-for-	)
profit corporation, MARY GREEN,		)
VALLERIE A. ROWLAND, REBECCA S.	)
THOMAS, and GORDON H. VANATOR,	)
						)
		Plaintiffs,		)
						)
	v.					)							
						)
WARSAW COMMUNITY SCHOOL	)
CORPORATION, DR. DAVID McGUIRE,	)
Individually and as Superintendent of the	)
Warsaw Community School Corporation,	)
RANDE THORPE, Individually and as	)
CFO of the Warsaw Community School	)
Corporation, CRAIG ALLEBACH, LARRY	)
CHAMBERLIN, CATHY FOLK, JAMES	)
FOLK, MARK MINATEL, RON YEITER,	)
and GENE ENGLAND, Individually and 	)
as Members of the Board of Trustees of	)
Warsaw Community School Corporation,	)
						)
			Defendants.		)
						)

PLAINTIFFSÕ MOTION TO RECONSIDER 

COME NOW the Plaintiffs, Concerned Citizens for Quality Education, Inc., Mary Green, 
Vallerie A. Rowland, Rebecca S. Thomas, and Gordon H. Vanator (hereafter referred to as 
"Plaintiffs"), by and through their undersigned attorneys of record, to respectfully petition this 
Court to reconsider its Order of Dismissal, dated May 13, 2004, and to instead deny the 
DefendantsÕ Motion to Dismiss.  In moving to reconsider, the Plaintiffs rely on the attached 
Designation of Evidence in Support of PlaintiffsÕ Motion to Reconsider, including the Affidavit of 
Eugene England and the Affidavit of Ronald L. Yeiter, which are incorporated by this reference, and 
on the following:
1.	DefendantsÕ Recent Testimony Indicates that the Defendant School CorporationÕs 
Decision to Close Three Elementary Schools Was Arbitrary and Capricious and Not 
Supported by Substantial Evidence.

	In its Order, this Court stated "Courts can intervene in this setting when the board has not 
acted properly, defined as where action is either illegal, unconstitutional, or is so unreasonable as to 
be arbitrary and capricious.   Nothing in this case rises to that level."  Order of Dismissal, at 2.  
The court then succinctly laid out its reasoning and bases for the latter statement.  Id.  However, 
Plaintiffs have since deposed Defendants Dr. David McGuire, Rande Thorpe, and James "Jim" 
Folk on May 28, 2004, and received signed Affidavits from Ronald L. Yeiter and Eugene England 
which were both independently filed with this Court on June 2, 2004, which testimony collectively 
indicates that the information submitted to this Court in the DefendantsÕ moving and reply papers 
was inaccurate or incomplete and that there is a triable dispute as to whether the Defendant School 
CorporationÕs decision to close the Atwood, Claypool, and Silver Lake elementary schools was 
arbitrary and capricious or not supported by substantial evidence. 
a.	McGuire Conceded that the Decision to Close the Three Elementary Schools 
Occurred Before This Litigation Was Initiated and Was Not Made to Provide 
Funding for This Litigation.

	In its recent Order, this Court stated the DefendantsÕ decision to close these three 
elementary schools may be justified "as a source of funding to pay for this litigationÉ."  Order of 
Dismissal, at 2.  However, McGuire testified to the contrary during his deposition and, instead, 
testified that the decision to close the three elementary schools was unrelated to this litigation:
Q.	You recommended to the board of trustees of Warsaw Community 
Schools that they vote to close Atwood, Claypool and Silver Lake 
for the school year 2004-2005; is that correct?

A.	Yes.

Q.	For all of the balance of my questions to save saying "Atwood, 
Claypool and Silver Lake," IÕm going to refer to them as "the three 
schools"?

A.	ThatÕs fine.

Q.	Was your recommendation to close the three schools based in any 
manner as a way to provide a source of funding to pay for this 
litigation?

A.	No.

Designation of Evidence in Support of PlaintiffsÕ Motion to Reconsider, Exhibit 1 (Deposition of Dr. 
David McGuire, at 7, l. 16 to 8, l. 3).
b.	DefendantsÕ Testimony and the School CorporationÕs Own Records Indicate 
the $300,000 to Be Saved in Closing the Three Elementary Schools Is Not an 
Accurate Projection as It Fails to Take Other Costs to Be Incurred into 
Account and Is a De Minimis Amount, Representing Less Than One Percent 
of the School CorporationÕs General Fund, Which Could Have Been 
Captured Through Less Drastic Options Than Closing the Three Schools.

	In its recent Order, and as support for its finding that the DefendantsÕ actions did not rise 
to the level of arbitrary and capricious, this Court also stated the DefendantsÕ decision to close 
these three elementary schools may also be justified in any event "to address other pressing fiscal 
issues" and as a result of "the six figure savings to the school system over each of the next two 
years." Order of Dismissal, at 2.  However, testimony from various Defendants and the School 
CorporationÕs records indicate that the information they provided in their moving and reply papers 
as to the School CorporationÕs fiscal health and the savings that will allegedly result from closing 
the three elementary schools was inaccurate and/or misleading.
	The figure of $300,000, which has been projected by the School Corporation to be saved in 
closing the three elementary schools, comes from a document prepared by the School 
CorporationÕs Chief Financial Officer, Rande Thorpe, which figure appears inaccurate and 
uncorroborated.  Designation of Evidence in Support of PlaintiffsÕ Motion to Reconsider, Exhibit 2 
(Deposition of Rande Thorpe, at 26-28, and Exhibit H).  Thorpe wrote the phrase "projected 
potential maximum costs savings" across the top (Thorpe Dep., at 40) of the document which he 
drafted during the School Board meeting of August 18, 2003, as an overhead projector slide.  Id., at 
27.  He apparently used the School BoardÕs then-projected budget for 2004 to come up with the 
numbers, which budget later changed.  Id.  Moreover, no documentation itemizing the projected 
saved costs was or has ever been presented to the School Board.  Affidavit of Eugene England, 
para.25; Affidavit of Ronald L. Yeiter, paras. 5 and 10.  As such, ThorpeÕs projected savings 
remain uncorroborated (see Yeiter Aff, at 3-4), and it was unreasonable for the School Corporation 
and/or McGuire to rely on this unsubstantiated projection in deciding, or recommending, to close 
the three elementary schools.
Thorpe also testified that the savings he projected as to personnel salaries was based on the 
assumption that all of the personnel from the closed schools who did not retire or resign would be 
able to step into vacant positions at the remaining seven elementary schools.  Thorpe Dep., at 30-
39.  However, Dr. McGuire admitted in his deposition that he knows of only two such current 
vacancies, and anticipates that only half of the fourteen displaced personnel will be able to fill 
positions that may eventually become open by the end of the first year.  McGuire Dep. at 32-35, 
80-82.  Given the School CorporationÕs commitment that no teaching personnel will be cut, fired or 
laid off for the 2004-2005 school year (Id., at 32-33), then the School Corporation will be paying 
the salaries for all those personnel from the closed schools who do not retire, resign, or are unable 
to find an open position at another school within the School Corporation for that year.  Thorpe 
Dep., at 37-39.  Assuming, conservatively, that seven teachers at $30,000 annual salaries each are 
unable to find an alternate position, this would represent a cost of $210,000 to the School 
Corporation for the next year.  Accordingly, for Defendants to represent that they will be saving on 
teaching personnel salary for the first year is inaccurate and misleading.
Thorpe also admitted that his projections were estimates, that the actual costs saved could 
be less, and that no actual outside study by any financial or accounting expert was ever conducted 
to support his projections:
Q.	A moment ago you carefully, I think, stated that these projections 
were the maximum, and as I understood your tone of voice, you 
were emphasizing the word "maximum."  I assume by that you 
mean the cost savings of closing the three schools could be less than 
the maximum?

A.	It could be less than $688,000,  yes, I would agree with that.

Q.	Has any professional study been done for cost savings of closing the 
three schools? 

A.	Yes.

Q.	Who was that by?

A.	I did it. 

Q.	Any outside professional study done for cost savings?

A.	WeÕve not had any external person conduct a cost savings.  There are 
people who potentially could that who are retired school business 
officials.

Q.	But it hasnÕt been done at this point?

A.	Not to my knowledge, no.

Thorpe Dep., at 40, l. 14 to 41, l. 9.
The DefendantsÕ projected savings in closing these three elementary schools is also 
inconsistent with the School CorporationÕs overall fiscal health.  Thorpe testified that he estimated 
the School CorporationÕs General Fund will have a $343,000 deficit at the end of the 2004 calendar 
year.  Thorpe Dep., at 21.  However, he also testified that the Form 9Õs which the Indiana 
Department of Education, Division of School Finance, generated for the Warsaw Community 
Schools indicated: for the calendar year 2000, total expenditures of $54,858,889.55, and a cash 
balance as of December 31, 2000 of $9,457,533.25; for the calendar year 2001, total expenditures 
of $56,243,317.83 and a year-end cash balance of $11,023,804.18; for the calendar year 2002, total 
expenditures of $62,427,050.13 and a year-end cash balance of $10,913,825.30; and for the 
calendar year 2003, total expenditures of $82,143,942.13 and a year-end cash balance of 
$13,433,427.66.  Id., at 9-12.  Thorpe also conceded that the Warsaw Community SchoolsÕ gross 
expenditures from January 1, 2000 through December 31, 2003 increased approximately 49.7%, or 
by 33% for the last four years if one excludes exception expenditures,   and cash balance for the 
same period of time increased by 42%.  Id., at 13, 73-74.  For this same period of time, the rate of 
inflation was 9.72%, and the student population increased by a little over 200.  Id., at 14-15, 73-74.  
Thorpe then admitted that the School Corporation spent more in 2001 than it did in 2000, more in 
2002 than it did in 2001, and in fact spent more in each of these years than it did the year before.  
Id., at 22-23, and 126.  Thorpe also admitted that the $300,000 that will allegedly be saved by 
closing the three elementary schools represents less than 1% of the School CorporationÕs General 
Fund.  Id., at 87-88.  These figures indicate that (1) the School Corporation, even taking inflation 
into account, has consistently spent more each year despite an asserted decrease in revenues (see 
Id., at 134-135), which in and of itself is proof that the School Corporation has misused and/or 
wasted public funds  and (2) the $300,000 projected savings in closing the schools is a pittance to 
the School CorporationÕs overall financial resources and another less drastic option to save this 
$300,000 could and should have been considered before these schools were closed.
This latter point is further corroborated by the deference to and money spent by the School 
Corporation on the high school football program.  Defendant McGuire made his recommendation 
to close the three elementary schools in August of 2003, allegedly in order to save $300,000.  
However, the month before, the School Board had voted to hire a varsity football assistant coach 
and two varsity football assistant co-coaches, and a freshman football assistant coach and two 
freshmen football assistant co-coaches.  McGuire Dep., at 50-51.  The information forwarded this 
week from Defendant McGuire indicates that the School Corporation, for its sole high school, 
currently has one varsity football coach, four full-time varsity football assistant coaches, and two 
part-time varsity football assistant coaches; it omits any reference to freshman football coaching 
staff or any position salary ranges.  Designation of Evidence in Support of PlaintiffsÕ Motion to 
Reconsider, Exhibit 5.  Conservatively estimated, assuming the one varsity football coach receives 
an annual salary of $30,000, the four full-time varsity football assistant coaches are each paid an 
annual salary of $25,000 and the two part-time varsity football assistant coaches are each paid an 
annual salary of $12,500, the total annual cost to the School Board for this varsity football coaching 
staff is $155,000, which does not include any sums for the freshman football coaching staff.  
Simply cutting back on the high schoolÕs football coaching staff arguably could have saved at least 
one elementary school from being closed.  When one compares these coaching hiring decisions, and 
the decision to build a multi-million-dollar football field and athletic complex for the high school, 
with the decision to close three elementary schools and bus the 437 displaced schoolchildren to 
other schools to save a mere $300,000, the only reasonable inference is that the latter decision was 
unreasonable to the point of being arbitrary and capricious.  See England Aff., paras. 27-28. 
The costs Thorpe projected to be saved in closing the three elementary schools also appear 
inaccurate in that they fail to take into account the costs associated with physically closing the 
three schools, selling the three schools, and/or maintaining the three schools until they can be sold.  
During his deposition, Thorpe testified that in projecting no significant cost to the School 
Corporation for these items, he assumed that existing maintenance staff could close and maintain 
the buildings in addition to their maintenance duties at the remaining schools without going into 
overtime and that this projection assumed the respective townships would purchase the buildings 
from the School Corporation, which assumptions are unrealistic.  Thorpe Dep., at 42-43, 49-51.  
Thorpe also admitted that no study has been conducted as to what it would actually cost the 
School Corporation to maintain these school buildings if they cannot be sold: 
Q.	If the three townships that you referred to decline for whatever 
reason, financial or otherwise, to accept the ownership or 
stewardship over these three buildingsÑ

A.	Uh-huh.

Q.	--would it continue to be true that the school corporation would 
have no out-of-pocket cost for closing up and securing the buildings 
and maintaining them?

A.	If we didnÕt sell them.

Q.	Right.  Has there been a professional outside study done to show 
what that would cost?

A.	What would cost?

Q.	The securing and maintenance of buildings that nobody wants?

A.	I donÕt believe thereÕs been an external study on that, no.

Id., at 43, l. 23 to 44, l. 14.  Thorpe went on to admit that a number of other studies as to the 
impact of closing these three elementary schools on the schoolchildren and their families were not 
conducted:
Q.	Mr. Thorpe, has the school corporation produced a study outside--a 
professional study on the impact on studentsÕ families arising from 
busing, and let me break that down into three categories, and IÕll give 
you a chance to answer each one of them.  First of all, increased cost 
on the family to participate in after school activities, has anybody 
looked at that?

A.	Not that IÕm aware of.

Q.	Secondly, has anybody looked at increased costs to pick up from 
Kindergarten or additional day care costs?

A.	Is that the end of the sentence?

Q.	End of the sentence.

A.	Not that IÕm aware of.

Q.	Thirdly, has anybody looked at the sociological impact on parentÕs 
involvement in PTO activities, which may be at a school thatÕs 
considerable more distant from their home?

A.	ThatÕs way out of my realm, but not that IÕm aware of.  

Id., at 58, l. 14 to 59, l. 9.
The costs projected by Thorpe to be saved in closing the three elementary schools also 
appear inaccurate in that they fail to take into account the costs associated with the lengthened bus 
routes that must necessarily be incurred in busing the 437 displaced schoolchildren to the remaining 
seven elementary schools.  Thorpe testified that the School Corporation would not incur any 
additional costs as a resulting of busing these schoolchildren, apparently because the transportation 
director informed him that the busing could be done without the need for additional buses or 
drivers.  Id., at 41-42.  However, the extra mileage involved in transporting these children from the 
Atwood, Claypool and Silver Lake communities to the other schools, the cost of fuel, and hours 
worked by the drivers in driving these longer routes does not appear to have been included in 
ThorpeÕs projections.  Thorpe Dep., Exhibit H; England Aff., paras. 25 and 36.  As such, the net 
savings to the School Corporation in this regard would less than as projected by Thorpe.
The projected costs saved also completely minimizes the additional costs that the School 
Corporation will incur to prepare, reconfigure, remodel, etc., the host schools who will be receiving 
the displaced schoolchildren.  Thorpe Dep., Ex. H.   For instance, as Defendant Yeiter testifies, 
transferring the displaced schoolchildren to the host schools has created the need for the School 
Corporation to order satellite computer systems, which are wireless and rolled from room-to-room 
as needed, because the host schoolsÕ accessory rooms have to be converted to regular classroom 
space in order to accommodate the influx,.  Yeiter Aff., para. 11.  The School Corporation would not 
have needed to purchase these satellite computer systems if the Atwood, Claypool and Silver Lake 
schools had remained open.  Id.  Moreover, the School Board has not been given any information as 
to what these systems will cost, how many computers or units must be purchased, or how it will 
pay for them given the alleged projected deficit.  Id.  In his previous Affidavit, McGuire has 
estimated the cost of these computer systems at $100,000, which is a third of the total costs that 
Thorpe had projected would be saved the first year after the closures.  This disparity between 
costs saved and costs that must be incurred, again, indicates that the decision to close the three 
elementary schools was not supported with substantial evidence, but was instead arbitrary and 
capricious.
c.	Defendants Admittedly Did Not Consider Any Other Options to Capture the 
Same Projected Savings Besides Closing the Three Elementary Schools and 
McGuire Conceded that the Decision to Close These Three Schools Was Not 
Recommended by Any Study Commissioned by the School Corporation.

The inference that the DefendantsÕ decision to close the three elementary schools must have 
been arbitrary and capricious given the School CorporationÕs overall fiscal status is further 
supported by the fact that, after the remonstrance succeeded and the School Corporation had to 
withdraw an earlier proposal, the only recommendation or option that McGuire gave the School 
Board was to close the Atwood, Claypool and Silver Lake elementary schools, as he admitted 
during his recent deposition:
Q.	Now, I know that your recommendation to close the schools 
included you saying that you hoped to save approximately 
$300,000; correct?

A.	ThatÕs correct.

Q.	Would it have been possible had you chosen to do so to look for 
those $300 [sic] in savings in other areas of the total budget?

A.	Actually thatÕsÑ

   	    MR. WHEELER:  Just for clarification, I think you meant to say 
$300,000É

Q.	$300,000.  Now, when you went to the board and recommended 
that the school corporation close all three schools, did you 
recommend any other options to the school board?

A.	Initially, I had suggested closing four schools and building two.

Q.	My understanding is that due to a--the submission of about 1,000 
signatures requesting a remonstrance, you withdrew that suggestion?

A.	ThatÕs correct.

Q.	My question then relates to what happened after that--

A.	Okay.

Q.	--when you went to the school board, I believe it was in September, 
and recommended that the three schools be closed?  When you put 
that in front of the board of trustees, did you give them any other 
options?

A.	That was--  They asked for my recommendation.  I simply gave 
them my recommendation.

Q.	Okay.  My question is, was that your only recommendation?

A.	Yes.

Q.	That recommendation did not include building any current schools?  
It only recommended closing Atwood, Claypool and Silver Lake; 
correct?

A.	Yes.

McGuire Dep., at 9, l. 24 to 11, l. 15.  Defendant Jim Folk also confirmed during his deposition that 
the only recommendation McGuire made to the School Board in August of 2003 was closing the 
Atwood, Claypool and Silver Lake elementary schools; McGuire did not offer the Board any other 
options.  Folk Dep., at 9-10.  Compare England Aff., paras. 24 and 27.
	Moreover, McGuireÕs recommendation to close the three elementary schools was contrary 
to the professional studies which the School Corporation had commissioned and on which he 
allegedly based this recommendation.  In its Order, this Court stated that "the Court believes that 
the BoardÕs actions are supported by appropriate studiesÉ."  Order of Dismissal, at 2.  McGuire 
testified, to the contrary, that none of the available studies ever recommended closing elementary 
schools without first or simultaneously constructing new schools:
Q.	You do not have--  Let me rephrase that.  Strike that.  Do you have 
any study or outside professional evaluation that advised you to 
close the three elementary schools period without any other 
building?

A.	No.

Q.	In closing the three schools, do you have plans as we sit here today 
to start construction of new elementary school buildings?

A.	No.
  
McGuire Dep., at 14, ll. 2-11.
Q.	Let me reask it:  Do you have any study by a professional outside 
organization which recommends closing the three schools without 
doing something else also?

A.	No.  

Q.	Okay.  So tell me what you meant when you said the decision was 
consistent with these two studies?

A.	Both of those two studies suggest that the smaller schools are 
inefficient and should be closed.

Q.	But they did not recommend the closing of the three schools without 
something else happening?

A.	No.  

McGuire Dep., at 31, l. 21 to 32, l. 7.
	Defendant McGuire also admitted that the School Corporation has never commissioned any 
study as to the impact on the Atwood, Claypool and Silver Lake communities as a result of closing 
their elementary schools:
Q.	Dr. McGuire, has the board under your direction of superintendent 
had the opportunity to study in any depth at all the cultural, 
economic or social impact on the three communities in this county, 
Claypool, Silver Lake and Atwood, that would result in if they go 
through closing the schools in those communities?

A.	ItÕs been something thatÕs been discussed in work sessions and 
commented on by the public at just about, I think, probably all the 
board meetings.

Q.	I understandÑ

A.	The bulk of the board meetings.

Q.	I understand understandably so.  If I lived in Claypool next to that 
very nice school -- Congratulations.  ItÕs a very nice school -- and it 
would be closed, I would ask the same questions.  My question is 
not have people complained about this.  My question is, has the 
board responded in any way by looking into the issue?

    	    MR. WHEELER:  IÕm going to object because I think he answered 
your question.  If youÕre asking whether a study was commissioned, 
thatÕs separate.  Your original question was had the board responded 
to those by receiving input related to them and his response was, 
"Yes."

    MR. PRICE:  That wasnÕt my question but thatÕs fine.

BY MR. PRICE: 

Q.	Has any study been performed?

A.	WeÕve not commissioned a study, no.

McGuire Dep., at 52, l. 15 to 53, l. 19.  See also Thorpe Dep., at 43-44 and 58-59.
	As such, McGuireÕs recommendation to close the three elementary schools without 
building any replacement facilities, and the School BoardÕs approval of that recommendation, are 
inconsistent with the recommendations actually made in the professional studies commissioned by 
the School Corporation and no other studies have been commissioned or submitted to this Court 
which support this recommendation and approval; therefore, the recommendation and decision to 
close the three schools without constructing others should be considered unreasonable to the point 
of being arbitrary and capricious.   
d.	During His Recent Deposition, McGuire Could Not Identify the Figures or 
Calculations He Used to Arrive at the Student-Teacher Ratios He Cited in 
His Previous Affidavit.

	This Court noted a "system wide reduction in student teacher ratios" in support of its 
recent Order, apparently relying on the Affidavit that McGuire submitted with the DefendantsÕ 
reply papers.  Order of Dismissal, at 2.  However, when McGuire was questioned during his 
recent deposition about the ratios he had set forth in his Affidavit, he first stated that he arrived at 
the numbers in his Affidavit using the total number of students and total number of teachers; 
however, when it was pointed out to him that, using this method, the actual ratios were quite a bit 
higher than those stated in his Affidavit, he testified that he could not remember how he calculated 
the student-teacher ratios cited in his Affidavit:
Q.	I would like to ask you for just a moment, Doctor, how you figure 
your student teacher ratios, specifically Atwood and Silver Lake.  If 
you would please, turn to the portion of your affidavit where you 
discuss ratios, which I believe is the top of page 6.  Do you see 
where it says Atwood 14-1 and Silver Lake 16-1?

A.	I believe I took the total number of classroom teachers and the total 
number of students.

Q.	ArenÕt there seven teachers at Atwood?

A.	The one teacher teaches half day.

Q.	Okay.  Seven-and-a-half or six-and-a-half?

A.	Six-and-a-half.

Q.	So if you have 144 divided by 6.5, does that come to 22?

A.	You have the calculator.  Apparently.

Q.	Do you know how you arrived at a 14 figure?  I mean, it looks 
pretty impressive to say look how low it is, but what is reality?

A.	When you first asked me, IÕm trying to remember how I came up 
with that.  I thought I took the lowest number of classroom--or 
students to teacher, and this probably is the case for Atwood but 
Silver Lake is actually one class down-- actually we have two classes 
down there that are more like 10 to 1 or 11 to 1, so IÕm not certain 
how I got it.  If I usedÑItÕs very possible that I used the student 
teacher ratio that was low at those buildings at one time, but I know 
itÕs subsequently changed.

Q.	Do you know how many teachers there are at Silver Lake?

A.	It should be the same as Atwood, six-and-a-half. 

Q.	How many students?

A.	Approximately 140.

Q.	You show 151 in your document?

A.	151.

Q.	WouldnÕt that be 23.2?

A.	Right. 
 
McGuire Dep., at 43, l. 10 to 44, l. 23; see generally McGuire Dep., at 43-47.
Given his deposition testimony, McGuire, at the very least, provided this Court with 
inaccurate student-teacher ratios, which he could not explain or justify under oath during his 
deposition.  As such, it appears the Defendants have not presented this Court with valid 
information corroborating their contention that student-teacher ratios will decrease overall as a 
result of closing three elementary schools (see Yeiter Aff., at 13-14), which again is indicative of the 
arbitrary and capricious nature of their decision to close these schools.
e.	As Defendants Still Cannot Agree on or Specify the Impacted Elementary 
SchoolsÕ Capacities, It Remains Unsubstantiated as to Whether the Host 
Schools Have Adequate Capacity to Accommodate the Displaced 
Schoolchildren from the Three Closed Elementary Schools.

	This Court also noted "the steps taken to provide for adequate capacity at each site" as a 
factor in support of its recent Order.  Order of Dismissal, at 2.  However, Defendants still cannot 
agree, even amongst themselves, as to the impacted elementary schoolsÕ respective actual 
capacities.  For instance, the Odle McGuire Shook study showed that of the remaining seven 
elementary schools, six were at 100% of their respective capacities two years ago.  See McGuire 
Aff., Exhibit D.  However, of two of the studies on which McGuire was allegedly basing his 
recommendation, the Odle McGuire Shook study and the Boyd study (see McGuire Aff., Exhibits 
C and D), and on which the School Board was supposedly in turn basing their decision,  to close 
the Atwood, Claypool and Silver Lake elementary schools, McGuire testified that both of these 
studies were wrong as to the schoolsÕ capacities because the studies had inaccurate classroom 
counts resulting in undercalculating the schoolsÕ capacities.  McGuire Dep., at 18-27, 78-80.  
However, McGuire could give no explanation for why the experts in their professional outside 
studies would grossly underestimate the number of classrooms.  Id., at 27.  McGuire has also failed 
to explain in what respect the figures given by Ron Yeiter at the March 15, 2004 board meeting 
(and cited on pages 6 and 7 of PlaintiffsÕ Opposition to DefendantsÕ Motion to Dismiss), which 
Yeiter based on the 1999-2000 community-based study, were allegedly inaccurate.  Yeiter Aff., at 
13-14.  This is critical as YeiterÕs and this community-based studyÕs capacity figures indicate that 
the displaced schoolchildren will be transferring into other schools that are already at or exceeding 
their respective capacities.  See PlaintiffsÕ Opposition to DefendantsÕ Motion to Dismiss, at 6-7.  
Thus, in making his assertions as to the schoolsÕ respective capacities, McGuire was and is not 
relying on any professional or expert study, but is instead relying on his own counting methods 
which apparently include classifying any and all available space, including storage areas, as 
potential classrooms.  McGuire Dep., at 18-27; Yeiter Aff., at 11-12; England Aff., para. 33.  
Plaintiffs question how McGuire could or should be deemed more capable of counting available 
classrooms, or determining which other space is appropriate for use as classrooms, than the experts 
that the School Board commissioned to perform those studies.  As a matter of common sense, it 
would appear that the expertsÕ and their studiesÕ calculations as to the schoolsÕ respective 
capacities would be more accurate than McGuireÕs, whose own counting was apparently 
performed only after the decision was made to close the three schools.
	Moreover, in his Affidavit, and in calculating the available space for the displaced 
schoolchildren, McGuire set forth the "historic high" capacities for the CorporationÕs elementary 
schools.  However, during his deposition, he testified that these are not actually "historic" highs, as 
some of these highs have not yet occurred.  McGuire Dep., at 18-19.  Instead, McGuire projected 
these highs as a result of the future "reconfigured" use of classrooms and other school rooms and 
storage space.  Id.  As such, McGuire appears to have made misleading statements in his Affidavit, 
as his listing of "historic highs" would most reasonably be read as implying that all of the schools 
in the past have accommodated greater numbers than the Plaintiffs are now objecting to, which is 
not true.
Finally, in making assertions as to the host schoolsÕ capacities and ability to receive the 
schoolchildren displaced by the three school closures in his previous Affidavit, McGuire assumed 
the availability of eight currently unused portable or modular classroom units, for the use of which 
he projected no additional expense to the School Corporation.  However, McGuire omitted to 
specify, as Yeiter does in his Affidavit, that four of these portable/modular classrooms are located 
at the Lincoln and Jefferson Elementary Schools, would need to be moved or refurbished, and 
would also require the School Corporation to redistrict one hundred children in order to use these 
portable/modular classrooms.  Yeiter Aff., at 14.  As such, McGuire appears to have again made 
inaccurate, if not outright misleading, statements in his Affidavit, which in turn belies the alleged 
reasonableness of the decision to close the Atwood, Claypool and Silver Lake elementary schools.
f.	McGuireÕs Threat to Close the Three Elementary Schools if Plaintiffs and 
Others Remonstrated Against His Earlier Proposal Was Not Taken Out of 
Context.

	In its recent Order, this Court noted that McGuireÕs "affidavit attempts to explain his 
discussions on the topic and puts them into context.  It seems most likely that the statements were 
made while various options were being considered in preparation for a further building project."  
Order of Dismissal, at 2.  However, School Board member Eugene England testifies in his Affidavit 
that at a meeting at the Claypool school, which he attended, "Dr. McGuire, while strolling back 
and forth in front of the large crowd in the Claypool gym made this statement, ÔIf a remonstrance is 
filed then I will close these three (3) schools.Õ  At this point I interrupted him and explained to the 
people why Dr. McGuire was so sure of himself.  I said, ÔHe can do this because the five (5) board 
members who are not here will vote for whatever he recommends.  He has their votes in his back 
pocket."  England Aff., para. 18.  EnglandÕs Affidavit, therefore, demonstrates the existence of a 
genuine issue of material fact as to McGuireÕs motivation for making the sole recommendation to 
close the three elementary schools,  which issue should preclude granting the DefendantsÕ Motion 
to Dismiss.
2.	PlaintiffsÕ Complaint Should Not Be Dismissed for an Alleged 
Failure to State a Claim on which Relief May Be Granted as There 
Are Facts and Law on Which They Could Recover at Trial. 

	In its Order, this Court stated that it was granting the DefendantsÕ Motion to Dismiss 
pursuant to Trial Rule 12(B)(6).  Order of Dismissal, at 1.  A motion to dismiss under TR 
12(B)(6) for an alleged failure to state a claim upon which relief can be granted tests the legal 
sufficiency, not the factual sufficiency, of a plaintiffÕs Complaint.  Community Hospitals of 
Indiana v. Estate of North, 661 N.E.2d 1235, 1242 (Ind. Ct. App. 1996); Musgrave v. State 
Board of Tax Commissioners, 658 N.E.2d 135, 140 (Ind. Ct. App. 1995).  As such, the 
PlaintiffsÕ Complaint(s) in the above-captioned litigation should not be dismissed under TR 
12(B)(6) unless it appears to a certainty that they would not be entitled to relief under any set of 
facts or where it is clear on the face of the Complaint that under no circumstances could relief be 
granted.  State v. Rankin, 294 N.E.2d 604, 606 (Ind. 1973); McDonald v. Smart Professional 
Photo Copy, 664 N.E.2d 761, 764 (Ind. Ct. App. 1996); Bentz Metal Products v. Stephans, 657 
N.E.2d 1245, 1247 (Ind. Ct. App. 1995); Pfaffenberger v. Brooks, 652 N.E.2d 884, 885 (Ind. Ct. 
App. 1995); Levinson v. Citizens Nat. Bank of Evansville, 644 N.E.2d 1264, 1269 (Ind. Ct. App. 
1994); Johnson v. Scandia Associates, 641 N.E.2d 51, 56 (Ind. Ct. App. 1994).  Moreover, TR 
12(B)(6) motions to dismiss are viewed with disfavor because they undermine the policy of 
deciding causes of action on their merits.  Bienz v. Bloom, 674 N.E.2d 998, 1001 (Ind. Ct. App. 
1996).
	Applying the preceding standards to the deposition and affidavit testimony cited above 
and designated in the attached and incorporated Designation of Evidence in Support of PlaintiffsÕ 
Motion to Reconsider, Plaintiffs respectfully posit that the DefendantsÕ Motion to Dismiss 
pursuant to TR 12(B)(6) should be denied because there are facts, and legal authority as set forth 
in PlaintiffsÕ Opposition to DefendantsÕ Motion to Dismiss, on which Plaintiffs can recover.
CONCLUSION
Plaintiffs filed this lawsuit against the Defendants because they believe the Defendants 
arbitrarily and capriciously decided to close three elementary schools in the Warsaw community 
without also constructing replacement schools and to bus the displaced children to other existing 
elementary schools which are already at or exceeding capacity.  Given the deposition testimony 
elicited from McGuire, Thorpe and Folk, the Affidavits tendered by England and Yeiter, and the 
School CorporationÕs financial records, there is factual evidence on which Plaintiffs could prevail, 
applying the legal standards set forth in Vigo County School Corporation et al v. Crockett et al., 
307 N.E.2d 510 (Ind. Ct. App. 1974), and similar court opinions.  This evidence indicates the 
decision to close three elementary schools, and bus the displaced children to other schools, was 
not supported by substantial evidence.
For the foregoing reasons, the Plaintiffs respectfully ask this Court to reconsider its 
Order of Dismissal, issued on May 13, 2004, granting the DefendantsÕ Motion to Dismiss 
pursuant to TR 12(B)(6), and instead deny that same motion.
Dated this 3rd day of June, 2004.
	Respectfully submitted,


								
	John R. Price
	Counsel for Plaintiffs

John R. Price
JOHN R. PRICE & ASSOCIATES
Attorney No. 5828-49
9000 Keystone Crossing, Suite 150
Indianapolis, Indiana 46240
317/844-8822




CERTIFICATE OF SERVICE
          The undersigned certifies that he has served via U.S. Mail, First Class, postage prepaid, a 
copy of the foregoing PlaintiffsÕ Motion to Reconsider, this _____ day of June, 2004, upon the 
following counsel for the Defendants Warsaw Community School Corporation et al.:
Thomas E. Wheeler, II
LOCKE REYNOLDS, LLP
201 North Illinois Street, Suite 1000
Post Office Box 44961
Indianapolis, Indiana  46244-0961

Max E. Reed
REED & EARHART ATTORNEYS
318 South Buffalo Street
Warsaw  IN  46580


					________	
	John R. Price [Attorney No. 5828-49]

   In Indiana, there is a constitutional right to judicial review of an administrative decision.  Warren v. 
Indiana Telephone Co., 26 N.E.2d 399, 404 (Ind. 1940); State ex rel. Smitherman v. Davis, 151 
N.E.2d 495, 498 (Ind. 1958).  Similarly, IndianaÕs Administrative Orders and Procedures Act provides 
that a court must set aside the action of an agency and either remand the matter to the agency or 
compel further agency action if the agencyÕs action was, for example, arbitrary, capricious, an abuse of 
discretion or in excess of statutory jurisdiction or authority, or unsupported by substantial evidence.  
I.C. ¤ 4-21.5-5-14(d); Salk v. Weinraub, 390 N.E.2d 995, 997 (Ind. 1979); Board of Sch. Trustees v. 
Barnell by Duncan, 678 N.E.2d 799, 804-05 (Ind. Ct. App. 1997).  Thus, numerous Indiana courts 
have permitted judicial proceedings to determine whether or not a schoolÕs or a school boardÕs action 
was "arbitrary and capricious."  South Gibson School Board v. Sollman, 768 N.E.2d 437, 441-43 (Ind. 
2002); Stewart v. Ft. Wayne Community Schools, 564 N.E.2d 274, 279-280 (Ind. 1990); City of 
Evansville v. Nelson, 199 N.E.2d 703, 710-11 (Ind. 1964); Sherrell v. N. Community School Corp. of 
Tipton County, et al., 801 N.E.2d 693, 694 (Ind. Ct. App. 2004); Ind. High School Athletic Ass'n v. 
Durham, 748 N.E.2d 404, 414 (Ind. Ct. App. 2001); Kinzel v. Rettinger, 277 N.E.2d 913, 915 (Ind. Ct. 
App. 1972).

  Indiana courts have explicitly held that the "substantial evidence" standard should be applied when 
reviewing the evidentiary support behind a school boardÕs decision.  Stewart, 564 N.E.2d at 277-78.  
Under this substantial evidence standard, the reviewing court must consider the record as a whole, not 
just the evidence that is favorable to the school boardÕs decision.  Id., at 278.  Then, a court should 
vacate a school boardÕs decision where the evidence, when viewed as a whole, demonstrates that the 
conclusions reached by the school board were clearly erroneous.  Id. 

    This figure was stated in McGuireÕs Affidavit to be for a two-year period.  McGuire Affidavit, para. 
4.

   Defendant Thorpe admitted he does not have an accounting degree.  Thorpe Dep., at 36.

  Defendant Folk denied knowing that the School CorporationÕs expenditures had been increasing by 
approximately 33% over the last four years.  Designation of Evidence in Support of PlaintiffsÕ Motion 
to Reconsider, Exhibit 3 (Deposition of Jim Folk, at 19).

   During his deposition, McGuire admitted that no such reconfigurations have occurred at any host 
schools to date.  McGuire Dep., at 15-16.

   Indiana courts have noted that an arbitrary and capricious administrative act is one which is willful 
and unreasonable, without consideration and in disregard of the facts or circumstances of the case.  
Board of Sch. Trustees v. Barnell by Duncan, 678 N.E.2d 799, 805 (Ind. Ct. App. 1997); Metropolitan 
Sch. Dist. of Martinsville v. Mason, 451 N.E.2d 349, 352 (Ind. Ct. App. 1983).  Given McGuireÕs 
intentional disregard for the content of the studies commissioned by the School Corporation, his 
recommendation would appear to fit the definition of an arbitrary and capricious act.

   Defendant Folk admitted that he never had the opportunity to read the Odle McGuire Shook study.  
Folk Dep., at 18.

   EnglandÕs and YeiterÕs Affidavits also indicate that McGuire controlled the majority (five) of the 
School Board, with England and Yeiter being the dissenting minority.  England Aff., paras. 13 and 18, 
Yeiter Aff., at 6-7.  Thus, although McGuire might not personally have voted to close the three schools, 
he knew that his recommendation to the School Board to close the three schools would be approved 
given that five School Board members vote for, or rubberstamp, his recommendations.   Id.; see also 
Folk Dep., at 13, 15.

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