April 24, 2015
In 2000, the people of California enacted Proposition 39 which amended Education Code section 47614 to require school districts to “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.”
The State Board of Education adopted regulations implementing Proposition 39 including California Code of Regulations, title 5, section 11969.3 subdivision (a)(1) which states:
The standard for determining whether facilities are sufficient to accommodate charter school students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending public schools of the school district providing facilities shall be a comparison group of district-operated schools with similar grade levels. (Emphasis added.)
The regulation defines comparison group schools as “the school district-operated schools with similar grade levels that serve students living in the high school attendance area … in which the largest number of students of the charter school reside” (5 C.C.R. 11969.3(a)(2)) or, if a district’s students do not attend high school based on attendance areas, the “three schools in the school district with similar grade levels that the largest number of students of the charter school would otherwise attend” (5 C.C.R. § 11969.3(a)(3)).
In 2007, the California Charter Schools Association (“CCSA”) entered into a settlement with Los Angeles Unified School District (“District”) after raising allegations the District failed to comply with Proposition 39. In the agreement the District agreed to offer facilities to charter schools in compliance with Proposition 39 and the implementing regulations. On May 24, 2010, CCSA filed a complaint in superior court against the District, alleging the District breached the settlement agreement. When the District’s charter schools requested facilities pursuant to Proposition 39, the District did not provide facilities using the comparative group method, but instead utilized its Districtwide ADA:teacher “norming ratios” to establish a uniform ratio in each grade level of District schools. The District argued Section 11969.3 only required it be able to demonstrate the facilities it offers to charter schools are reasonably equivalent to what it would have offered had it used the comparison group method.
The Supreme Court held Section 11969.3 requires the District to use the comparison group method when responding to Proposition 39 requests. The Court determined based on the cited purpose in the development of the regulations that conditions of all district-operated schools vary from neighborhood to neighborhood, and using such a large comparison group produces different results than comparing neighborhood schools which the charter students would otherwise attend.
The Court also looked at what District classrooms must be counted to determine reasonably equivalent facilities. Section 11969.3 subdivision (b)(1) states:
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.
CCSA argued the regulation requires the District to count classrooms strictly by using the classroom inventory found in 2 C.C.R. 1859.31. However the Court agreed with the District’s interpretation that only classrooms provided to non-charter public school K-12 students in the District must be counted; and that unbuilt classrooms, classrooms already used by other charter schools, and classrooms dedicated to preschool, adult education, or other uses besides District K-12 education need not be counted in determining the ADA:classroom ratio. However, the Court stated “counting classrooms provided to district students for the purposes of section 11969.3(b)(1) may depend on site specific factors and is not determined simply by counting rooms staffed by a teacher.” The Court made clear that it was not asked to address the allocation of particular classrooms to particular charter schools and declined to define any specific classifications.
While the Supreme Court made clear that the comparison group schools method must be utilized, the Court did not provide clear guidance as to what school district classrooms must be counted to determine reasonably equivalent facilities. As such, before responding to Proposition 39 facility requests, school districts should consult with legal counsel on these matters to ensure full legal compliance.