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January 10, 2013

A School District’s Use of Norming Ratios in Determining Facilities to be Offered to a Charter School is Consistent with the Intent of Proposition 39


At the request of Los Angeles Unified School District (“LAUSD”) and other interested parties, the California Court of Appeal ordered that a decision on the means used by LAUSD to determine the appropriate allocation of facilities pursuant to Proposition 39 be published.  This case is now precedential for other California school districts and charter schools.

Education Code section 47614(a) (commonly referred to as “Proposition 39”) requires that public school districts share their facilities “fairly” among all public school students, including those who attend charter schools.  Proposition 39 specifies “Each school district shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school’s in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district.”  (Id., subd. (b).)  There are also implementing regulations setting forth specifics for compliance with Proposition 39.  (Cal. Code Regs., tit. 5, § 11969.1 et seq.)

The California Charter Schools Association (“CCSA”) alleged that the facilities offered by LAUSD pursuant to Proposition 39 to some CCSA member charter schools did not comply with the following requirement of California Code of Regulations, title 5, section 11969.3 (“Regulation 11969.3”):

(b) Capacity.

(1) Facilities made available by a school district to a charter school shall be provided in the same ratio of teaching stations (classrooms) to ADA as those provided to students in the school district attending comparison group schools. . . . The number of teaching stations (classrooms) shall be determined using the classroom inventory prepared pursuant to California Code of Regulations, title 2, section 1859.31, adjusted to exclude classrooms identified as interim housing. . . .
CCSA objected to LAUSD’s use of “norming ratios” to determine the teaching station to ADA ratio it used in allocating facilities to charter schools.  LAUSD defines “norming ratios” as “Norms — Most District schools receive their base allocations of teachers, school administrators, school clerical positions, and various resources, on the basis of Board-approved ‘norms,’ which determine the resources to be allocated to individual schools.”  LAUSD offered facilities to the charter school students on the basis of the same ratio of students to classrooms that it provided to students attending LAUSD-operated schools.  LAUSD claimed that the use of norming ratios was an appropriate method by which to ensure an equal ratio of ADA to classrooms in charter schools and the LAUSD comparison group schools.

CCSA claimed that Regulation 11969.3 sets forth a clear formula based on a classroom inventory, meaning how many students and classrooms the district has, whether or not they are used as classrooms, rather than relying on how many students a district actually puts in each classroom.  LAUSD responded that the emphasis should be on the requirement that facilities be provided in the same teaching station to ADA ratio as provided to district students, rather than the gross classrooms in existence.  The court held that Regulation 11969.3(b)(1) must be read in a manner that promotes the intent of Proposition 39 that facilities be shared fairly among all students.  The court, therefore, distinguished between facilities that are “provided” and “classroom inventory.” 

The court noted that strict adherence to the “classroom inventory” methodology advocated by CCSA could have anomalous results.  For example, the classroom inventory referenced in the regulation could include both classrooms at closed school sites and classrooms that have been contracted for but which have not yet been built.  The court rejected this interpretation of the regulatory requirement that could have absurd results, including a much larger allocation of classrooms to charter school students ratio than that provided to students attending district schools.  LAUSD’s use of norming ratios — meaning that the number of teaching stations offered was equivalent to that provided on average to LAUSD’s students — resulted in facilities being shared fairly between charter and non-charter pupils.

Impact
As a practical matter, the process used by LAUSD, or something similar, is what is often followed by school districts in determining the facilities to offer pursuant to Proposition 39.  As the court noted in this case, the use of the classroom inventory could result in an unintended boon to charter schools that would potentially receive a number of classrooms far in excess of the allocation of classrooms among students who attend non-charter schools.  In addition to the fact that strict adherence to the classroom inventory referenced in Regulation 11969.3 would have potentially anomalous and absurd results, school districts often do not have ready access to the classroom inventory and/or the inventory is inaccurate and out-of-date. 

A large number of the Proposition 39 facilities requests that are currently being processed by school districts for the 2013-2014 school year (many of which use a standard form/format) included a specific reference to the trial court decision that was overturned by the Court of Appeal.  Those formula requests claim that the trial court decision “clarified that a school district cannot use a loading standard to allocate teaching stations to a charter school . . . .”  The Court of Appeal, however, has now clarified that a school district’s reliance on its loading standards and norming ratios in a manner that results in a fair sharing of facilities between charter and non-charter school students is an appropriate methodology for providing facilities pursuant to Proposition 39.

LAUSD, and its supporters’, successful request that this decision be published is beneficial to all school districts in their current and future efforts to comply with Proposition 39’s intent that school facilities be shared fairly, and not result in an unwarranted windfall to charter school students.

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