COURT OF APPEAL RULES THAT PROP 39 REQUIRES ALL SPACE BE CONSIDERED IN MAKING A FACILITIES OFFER TO ACHARTERSCHOOL

November 2011
Number 70

A California appellate court has issued a far-reaching decision regarding a school district’s obligation to provide “reasonably equivalent” facilities to a charter school under Proposition 39 (Ed. Code § 47614; “Prop 39”). Prop 39, enacted as a voter initiative in 2000, requires school districts to share their facilities with charter schools, and requires that the facilities offered by a district be reasonably equivalent to the district’s facilities.

In Bullis Charter School v. Los Altos School District, et al., (October 27, 2011) __ Cal.App.__ [2011 WL 5103065] the Sixth Appellate District held that Los Altos School District failed to consider and accurately measure the amount of space available to District schools when it made its determination of how much space to offer to the Bullis Charter School for the 2009-2010 school year. The decision will likely have a substantial impact on how districts evaluate their offers of facilities to charter schools, and will doubtless make the task of complying with Proposition 39 even more challenging for school districts.

Bullis Charter Schoolwas granted a charter by the Santa Clara County Office of Education in 2003. TheCharterSchoolhas been housed since its creation in facilities provided by the District under Prop 39. According to theCharterSchool, the District’s facilities offer for 2009-2010 significantly understated the size of comparable District facilities (“comparison schools” under Prop 39) and overstated the size of the facilities offered to theCharterSchool. In the lawsuit it filed challenging the District’s facilities offer as insufficient, the Charter School alleged that because the District failed to accurately assess the size of the comparison schools’ facilities and the Charter School’s facility, the site provided to the Charter School was less than half the size of the comparison schools’ sites.

Prop 39 and its implementing regulations set forth a process for a school district to evaluate the size of teaching space, specialized teaching space, and non-teaching space at comparison schools, and then require that the district provide a requesting charter school with space reasonably equivalent to the average facilities available at the comparison schools. According to theCharterSchool, the District manipulated the information it used in making the determination of what space it would offer, so as to minimize its obligation to provide space.

The District conceded that in calculating how much space to offer the CharterSchool, it had only calculated the square footage of certain spaces at the comparison schools and excluded large portions of those schools’ sites, including landscaping, walkways, child care centers, and other facilities. According to the appellate court, the District contended that “in the case of non-classroom facilities, it need only consider those that are common to each of the schools in the comparison group”, meaning that if a particular kind of non-teaching facility, like a tennis court, was present at some but not all of the comparison schools, that facility was not included in the calculations of what facilities were “reasonably equivalent”. The court disagreed with this approach, concluding that a school district “must take an objective look” at all of the non-teaching space available at its comparison group schools.

The court also held that school districts must consider overall site size in determining whether an offer of facilities is reasonably equivalent. On an acres-per-student basis, the site offered to theCharterSchoolwas about 75% of the size of the five comparison group sites, and the court determined that the District was required to consider this factor in determining whether its facilities offer was appropriate.

The court further critiqued the District’s methods for calculating how much space was being occupied by theCharterSchool. According to the court’s opinion, the District’s facilities offer significantly overstated the amount of space being offered to theCharterSchool. In addition, when calculating how much space theCharterSchoolhad at its disposal, the District included a soccer field, even though theCharterSchoolwas only entitled to use that field 40% of the time, and a multipurpose room that was constructed by theCharterSchool, not provided by the District. The court concluded that the District’s calculations of the Charter School’s space should have been reduced to reflect the fact that use of the soccer field was shared, and that it was inappropriate for the District to include facilities it did not own (such as the multipurpose room) in its determination of how much space the Charter School was entitled to receive.

This opinion is novel in that the court of appeals closely reviewed the evidence and performed its own calculations, using the same data on which the District had relied, to determine that the District’s offer was inadequate under Prop 39. Thus, for the first time in a published decision, an appellate court has examined the Prop 39 regulations line by line and applied those regulations to the available facts. At the same time, the decision is noteworthy for its broad holding that, “In making its facilities offer, the school district must make a good faith effort to consider and accurately measure all of the facilities of the comparison group schools and accurately describe the facilities offered to the charter school.”

The decision also comes just as school districts are receiving requests for facilities for the 2012-2013 school year, which were due on November 1, 2011. Complying with Prop 39 has always posed challenges for school districts. The creation of a charter school does not necessarily leave adequate facilities space available in the school district from which the charter school’s students are drawn, and therefore many school districts struggle to meet their obligations to furnish appropriate facilities. However, the decision in this case makes clear that efforts to read Prop 39 in ways that minimize a district’s obligations can backfire. In response to this decision, many school districts will be forced to examine how they have been measuring their obligations to provide facilities and perhaps change certain practices.

The time for the District to file an appeal of this decision has not yet expired. If there are further developments in this case, we will issue updates. In the meantime, if you have questions about the implications of this decision or your district’s Prop 39 obligations generally, please contact one of our eight offices located statewide, visit our website, or follow Lozano Smith on Facebook.

Written by:

Edward Sklar
Shareholder and Charter School Practice Group Co-Chair
Walnut Creek Office
esklar@lozanosmith.com

Devon B. Lincoln
Senior Counsel and Charter School Practice Group Co-Chair
Monterey Office
dlincoln@lozanosmith.com

© 2011 Lozano Smith

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