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August 1, 2010

Making Sense of the Open Enrollment Act

In January, 2010, the Governor signed the Open Enrollment Act, Educ. Code §§ 48350 et seq. The Act required the Superintendent of Public Instruction to establish a list of 1,000 “low-achieving schools,” as defined by statute, and gave students attending these schools the right to transfer within or outside of their districts to schools with higher API scores. In July, a preliminary list of 1,000 Open Enrollment Schools and proposed emergency regulations were issued, but these raised as many questions as answers for many school districts. Within the past two weeks, three things have happened that will give some guidance for implementing the Act.

First, the emergency regulations have been finalized. Second, the final list of 1,000 Open Enrollment Schools for 2010-2011 has been issued and the California Department of Education (CDE) has notified districts that have schools on the list. Third, and most recently, CDE has issued guidance for school districts concerning the Act and its implementation. The guidance is available at

Now that the list of 1,000 Open Enrollment Schools is fi nalized, districts with schools on the list are required to notify parents and guardians whose children attend the schools of their option to transfer under the Act. Other districts should anticipate that they will begin to receive applications for such transfers.

Districts with Schools on the List

For districts with schools on the list, the most immediate action item is to notify parents and guardians of the option to transfer to a school with a higher API. Districts that have not yet started school must give notification on or before the first day of instruction. All districts must give notification no later than September 15. AALRR attorneys are available to assist districts with the preparation of notices that meet the requirements of the Act and regulations. A school district of residence may prohibit transfers out of the district only on extremely limited grounds, and in general must not prevent or discourage students from applying for a transfer.

Receiving Districts

For districts that anticipate receiving transfer applications (and any district may potentially receive such applications, including those with schools on the list), the most immediate questions are first, whether they will accept any applications for 2010-2011, and second, if they do decide to accept applications, whether they will adopt any criteria for the consideration of such applications.

The Act requires transfer applications to be submitted by January 1 preceding the school year for which transfer is sought. There is a limited exception for children of recently transferred military personnel. Subject to this exception, however, because the Act was not signed into law until January 7, 2010, no transfer applications for the 2010-2011 school year will meet the application deadline of the Act. The Act permits, but does not require, a district of enrollment to waive the January 1 deadline. No district, therefore, is required to accept transfers for the 2010-2011 school year, except those subject to the military exception. The first decision to be made for a district receiving applications, therefore, is whether it will waive the January 1 deadline and choose to accept applications for 2010-2011.

Transfer Application Standards

Transfer applications must be acted on within 60 days of receipt. The Act specifically authorizes districts to adopt “specific, written standards for acceptance and rejection of applications.” All districts that waive the January 1 deadline therefore should consider as soon as possible whether to adopt such standards. The adoption of standards is not required, but in the absence of such standards, it is possible that a district would be compelled to accept any and all transfer applications received under the Act.

The Act specifically allows standards based on “the capacity of a program, class, grade level, school building, or adverse financial impact,” and specifically prohibits consideration of “previous academic achievement, physical condition, proficiency in the English language, family income,” as well as disability, gender, nationality, race or ethnicity, religion, sexual orientation, or similar personal characteristics.

Careful consideration of the content of such standards will be necessary, however, to ensure that they are legally compliant and enforceable. Districts considering adopting standards based on capacity or adverse financial impact should consider how capacity limits and adverse fi nancial impact will be determined, and the degree of specificity with which the criteria for these determinations will be written into district policy.

Transfer Students versus Resident Students

A transferring student must be assigned to a school with a higher API than the school in which the student was previously enrolled, subject to preferences for siblings and students transferring from decile 1 schools. If the number of students requesting a particular school exceeds the number of spaces available, selection must be based on lottery. The Act, however, also prohibits transferring students from displacing resident students from their schools. Therefore, districts of enrollment are also required to establish priority enrollment periods for district residents.

The requirement of enrollment priority for resident students is likely to be less of a practical issue for the 2010-2011 school year than in future years. In 2011-2012 and beyond, however, districts of enrollment will have to determine how to reconcile the January 1 application deadline and the requirement of acting on applications within 60 days with the requirement of enrollment priority for residents as well as the preferences and lottery requirements for transfer applicants. There are various approaches that can be taken to this problem, and different districts will choose different solutions.

Final Regulations

The recently-finalized emergency regulations will soon be superseded by permanent regulations that will govern transfers for 2011-2012. CDE is accepting public comments on the proposed permanent regulations until September 14, 2010. Any districts wishing to weigh in on the proposed permanent regulations should be aware of this timeline. The proposed permanent regulations are available at documents/openenrlmtreg.doc. Contact information for submitting comments is available at

Now is the time for districts to start thinking about how they want to deal with Open Enrollment Act transfers not only in 2010-2011, but also in 2011-2012. CDE anticipates releasing the list of Open Enrollment Schools for 2011-2012 in September 2010, which could result in transfer applications for next year being submitted quite soon. All districts will need to have a plan in place well in advance of the January 1, 2011, application deadline for 2011-2012, and we recommend that all districts begin now developing their standards for acceptance and rejection of transfer applications pursuant to the Open Enrollment Act.



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