Charter Schools Facilities Request Deadlines Looming

October 2017
Number 71

Commonly referred to as “Prop. 39,” Education Code section 47614 requires that, in certain circumstances, school districts must provide facilities to charter schools. Pursuant to Prop. 39, charter schools must request facilities for the 2018-2019 school year, in writing, by November 1, 2017. Because Prop. 39 triggers certain obligations for a school district, it is best to be prepared for the upcoming facilities request season.

A charter school’s timely facilities request to a school district triggers the following deadlines:

December 1: Deadline for a school district to express, in writing, any objections to the charter school’s projected average daily attendance (ADA). If this deadline passes without objection by the district, the district will likely be required to base its facilities offer on the charter school’s in-district ADA projections.

January 2: Deadline for the charter school to respond to any objections raised by the school district regarding ADA projections.

February 1: Deadline for the school district to provide a preliminary offer of facilities to the charter school, along with detailed information about the offer and a draft facilities use agreement.

March 1: Deadline for the charter school to respond to the preliminary offer.

April 1: Deadline for the school district to provide a final facilities offer.

May 1: Deadline for the charter school to accept the district’s final facilities offer.

Given these tight timelines, it is critical that a Prop. 39 facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections and to consider what facilities will be offered. School districts should also keep in mind that in certain circumstances, even proposed charter schools may request facilities, so it is possible to receive a request from a school that has not yet been approved.

For assistance with processing Prop. 39 facilities requests or with any charter school matter, please contact the authors of this Client News Brief or an attorney in our Charter Schools Practice Group or at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Jerrad M. Mills

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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Legislative Update: California’s Charter School Students Win New Protections

October 2017
Number 70

A new law aims to ensure equal access for students seeking to enroll in charter schools and to end the practice of dismissing, or “counseling out,” charter school students without due process. Assembly Bill (AB) 1360 takes
effect on January 1, 2018.

The bill gives charter authorizers a new tool for ensuring that charters do not engage in discriminatory admissions practices and provides students more due process during disciplinary proceedings. A description of the bill’s key elements is below.

Admissions Preferences: The Charter Schools Act has always given charter school authorizers the final say regarding charter school admissions preferences. However, the charter authorizer will now be required to hold a public hearing on the admissions preferences prior to their adoption. Any adopted preferences must comply with federal law, the California Constitution, and Education Code section 200, which prohibit discriminatory admissions preferences. For efficiency, charter authorizers may wish to conduct this public hearing on admissions preferences at the same time as the public hearing regarding interest in the charter school, which is required within 30 days of the submission of the charter petition.

Parental Involvement: While the bill allows charter schools to encourage parents and guardians to participate, charter schools are now required to inform parents and guardians of applicants and current students that parental involvement is not a requirement for acceptance or continued enrollment at the charter school.

Student Discipline and Dismissal: While existing law requires charter petitions to include the procedures by which a student can be suspended or expelled, AB 1360 extends beyond this requirement and provides additional due process protections. The changes follow a California Court of Appeal decision,Scott B. v. Board of Trustees of Orange County High School of Arts (2013) 217 Cal.App.4th 117, which allowed for the dismissal of charter school students with minimal due process protections. In addition to the procedures for suspending or expelling a student, charter school petitions must now also include procedures that will be used to involuntarily remove students from the charter school. The bill requires, at minimum, for charter school petitions to explain “how the charter school will comply with federal and state constitutional procedural and substantive due process requirements.” In order to ensure these due process requirements are met, the bill contains specific language that must be contained in the charter petition and specific processes that the charter school must follow when disciplining or removing a student.

Notification: AB 1360 requires school districts to notify charter schools if a student is expelled or leaves the school district without graduating or completing the school year. The district should provide this information to the charter school within 30 days, if the charter school provides evidence of enrollment. This is a new obligation for school districts.

Takeaways

Charter school authorizers, including school boards and county boards of education, should be aware of these important changes required by AB 1360. Charter schools should ensure that their petitions, policies, and practices regarding admissions preferences, student discipline and dismissal, and parental involvement are updated and in compliance with AB 1360. Charter authorizers should integrate the new requirements into their board policies regarding charter schools, and should remain aware of these changes when reviewing charter school petitions.

If you have any questions about AB 1360 or charter schools in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Jerrad M. Mills

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

California Travel Ban Does Not Apply to Local Agencies

July 2017
Number 41

A California law that bars state agencies from funding travel, and from requiring employees to travel, to states that permit discrimination on the basis of sexual orientation, gender identity or gender expression – and Attorney General Xavier Becerra’s recent expansion of the list of states covered by the ban – have raised questions regarding whether the law applies to cities, counties, school districts and community college districts.

While there is no definitive legal guidance on the issue, the law expressly applies to state agencies, departments, boards, authorities and commissions, including the University of California and the California State University system. As “state agencies,” it appears the law also applies to the California Community Colleges Chancellor’s Office and the California Department of Education. AB 1887 does not state that it applies to cities, counties, school districts or community college districts, nor do these entities appear to be state agencies under the law.

The acting general counsel of the California Community Colleges Chancellor’s Office agrees: In a June 29 legal update, he said that while the restrictions apply to the chancellor’s office itself, community college districts are local education agencies that are not covered by the ban. Still, the letter cautioned local community college districts that the chancellor’s office may not be able to approve a request for state-funded travel to any of the states covered by the ban.

Effective January 1, 2017, Government Code section 11139.8 (enacted by Assembly Bill (AB) 1887) prohibits California state agencies, departments, boards, authorities and commissions from requiring any state employees, officers or members to travel to other states that permit discrimination on the basis of sexual orientation, gender identity, or gender expression and also, from approving a request for state-funded or state-sponsored travel to a state that has passed such a law.

AB 1887 prohibits travel to any state that has enacted a law after June 26, 2015 that voids or repeals existing state or local protections against discrimination on the basis of sexual orientation, gender identity or gender expression or permits discrimination against same-sex couples or their families on those bases.

The original list of states covered by the ban included Kansas, Mississippi, North Carolina and Tennessee. On June 22, Becerra added Alabama, Kentucky, South Dakota and Texas to the list after those states approved laws that permit such discrimination.

Exceptions to the travel restrictions include:

  • Enforcement of California law, including auditing and revenue collection;
  • Litigation;
  • To meet contractual obligations incurred before January 1, 2017;
  • To comply with requests by the federal government to appear before committees;
  • To participate in meetings or training required by a grant or required to maintain grant funding;
  • To complete job-required training necessary to maintain licensure or similar standards required for holding a position, in the event that comparable training cannot be obtained in California or a different state not subject to the travel prohibition; and
  • For the protection of public health, welfare or safety, as determined by the affected agency, department, board, authority, commission or legislative office.

If local government agencies intend to use state grant money for travel to any of the states covered by the ban, they should check to determine if the travel restrictions are included as a condition of the grant. In addition,
local agencies may have adopted their own policies that mirror AB 1887.

Additional information about AB 1887 and the states the travel ban applies to is available on the Attorney General’s website. For more information on AB 1887, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Stephanie M. White

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

State Board of Education Adopts Waiver Policy for Unlawfully Located Nonclassroom-based Charter Schools

April 2017
Number 15

The State Board of Education (State Board) recently approved Policy No. 17-01 (Policy), which permits the board to issue temporary waivers to nonclassroom-based charter schools operating “resource centers” outside the geographical boundaries of their chartering school district. The State Board’s decision comes on the heels of a closely watched charter school decision, Anderson Union High School District v. Shasta Secondary Home School
(2016) 4 Cal.App.5th 262 (Anderson), which became binding law in California on January 18, 2017 ( see 2017 Client News Brief No. 5 ). The holding in Anderson confirmed that the geographic and site limitations of the Act are applicable to all charter schools, including nonclassroom-based programs.

The Anderson decision left some nonclassroom-based charter schools scrambling to bring facilities operating outside the boundaries of their authorizing school district into compliance with the law. In order to minimize disruption to pupils and educational programs, the Policy sets forth a process to determine whether charter schools will be granted a one-year waiver from compliance with the geographic restrictions of the law. All schools granted a waiver must become fully compliant no later than June 30, 2018.

Charter schools themselves may not apply directly for waivers with the State Board. The authorizing school district must seek the waiver on the charter school’s behalf. The charter school will be required to create a transition plan detailing how its resource center will come into compliance with Anderson, and submit a copy of the plan to the State Board and all impacted school districts where the noncompliant facilities are located. A charter school must also give parents regular status updates regarding transition. The Policy is set to expire on November 10, 2017, although the State Board did not preclude review of subsequent waiver requests on a case-by-case basis.

The State Board emphasized that the Policy should not be viewed as an amnesty for charter schools operating noncompliant facilities. Rather, all noncompliant schools must take immediate steps to comply with the law as clarified by Anderson. We encourage school districts and county offices of education impacted by this Policy to work closely with legal counsel to evaluate potential solutions, including providing feedback on individual waivers that come before the State Board. Over 40 waivers are slated for review at the May 2017 State Board meeting, with more anticipated at future meetings.

For more information on State Board of Education Policy No. 17-01, theAnderson opinion or the Charter Schools Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Charter School Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Megan Macy

Senior Counsel

Erin Hamor

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New Federal Guidance Regarding Transgender Students Will Not Impact California Schools

February 2017
Number 9

Under new leadership following the 2016 presidential election, the United States Department of Justice (DOJ) and Department of Education (DOE) issued a joint “Dear Colleague” letter on February 22, 2017 withdrawing the Obama administration’s May 2016 letter and guidance regarding transgender students and sex-based discrimination under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et. seq.) and Title IX’s regulations. The prior letter and guidance, consistent with the Obama administration’s enforcement of Title IX in school districts, provided that Title IX’s protections extended to transgender students, irrespective of that student’s sex assigned at birth, and included access to facilities like restrooms and locker rooms. (See 2016 Client News Brief No. 31 and July 25, 2016 article.)

The federal government’s new Dear Colleague letter includes a twofold explanation of the reasons for the rescission of the prior letter and guidance: (1) the prior letter and guidance lacked extensive or sufficient legal analysis to support the extension of Title IX protections to include access to sex-segregated facilities for transgender students; and (2) the DOJ and DOE desire to provide greater discretion to individual states regarding the issue of facilities use by transgender students, given the legal uncertainty and the fact that the prior guidance resulted in litigation in several states. One case involving the now rescinded May 2016 letter and guidance is currently pending before the United States Supreme Court. The Supreme Court has invited the parties in that case to submit letters addressing whether this new guidance impacts how the case should proceed.

Despite the withdrawal of the May 2016 Dear Colleague letter, the new federal guidance continues to emphasize a commitment to protect LGBT students from discrimination, bullying and harassment.

While the May 2016 federal letter and guidance are no longer in effect, California law, including Assembly Bill 1266 (Ed. Code, § 221.5(f)) and related non-discrimination provisions providing protections on the basis of gender identity (Ed. Code, §§ 220, 234.1, etc.), continues to control in the state. Likewise, the California Department of Education’s guidance on transgender youth in schools continues to stand. (See 2016 Lozano Smith Client News Brief No 16 .) Specifically, state law requires California school districts and other local education agencies to ensure transgender students’ rights consistent with, if not beyond, the previously issued and now rescinded federal letter and guidance.

If you have questions about the new Dear Colleague letter, its interaction with California law or state or federal law regarding transgender student rights in general, please contact an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Inna Volkova

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

County Boards of Education May Not Exempt Charter Schools from Local Zoning Regulations

February 2017
Number 7

A California Court of Appeal has held that a county board of education may not grant exemptions from zoning ordinances under Government Code section 53094. ( San Jose Unified School District v. Santa Clara County Office of
Education
(Jan 24, 2017, No. H041088) ___ Cal.App.5th ___ < http://www.courts. ca.gov/opinions/documents/H041088.PDF >.) Specifically, county boards may not exempt the charter schools they authorize from zoning ordinances. School districts have this power; county boards do not.

The Santa Clara County Office of Education granted Rocketship Education (“Rocketship”) a countywide charter to operate up to 25 charter elementary schools within the county. Rocketship proposed to locate one of its elementary schools on property that was owned by the City of San Jose (“City”) and not zoned for school use. The proposed property was located within the jurisdiction of the San Jose Unified School District (“District”), but was zoned only for open space, parklands and habitat. Because the City’s General Plan prohibited operating a school on the property, the Santa Clara County Board of Education granted Rocketship an exemption to the City’s zoning ordinance under Government Code section 53094.

Under the language of Government Code section 53094, subdivision (b), only the “governing board of a school district” may grant zoning exemptions. The San Jose Unified School District and a local property owner filed separate petitions for writs of mandate seeking to invalidate the exemption. They argued that county boards of education are not school district governing boards, and lack authority to exempt property from local zoning laws. The trial court granted the District’s writ petition and ordered the County Office of Education to rescind Rocketship’s zoning exemption – thus leaving Rocketship without a school site.

The Court of Appeal upheld the trial court’s decision. In reaching its conclusion, the appellate court relied on the legislative history of section 53094, which was enacted in response to the decisions inHall v. City of Taft (1956) 47 Cal.2d 177 andTown of Atherton v. Superior Court (1958) 159 Cal.App.2d 417.Hall and Atherton generally held that school districts engage in sovereign activities of the state when they design and construct school facilities, and therefore are not required to comply with local zoning ordinances in designating school locations. These cases, however, unwittingly immunized a large number of state agencies from local regulation, and section 53094 was passed to narrow this exemption authority specifically to local school districts.

The court noted that, although county offices of education have authority to grant charter petitions and oversee charter schools, it is local school districts that are obligated to provide charter school facilities under Proposition 39 (Ed. Code, § 47614, subd. (b).) Because a county office of education does not bear responsibility to acquire sites for charter schools, it does not perform a sovereign activity on behalf of the state if it chooses to do so. This is because the state has tasked districts, not county offices of education, with such responsibility. Therefore, empowering county boards of education to issue zoning exemptions would not advance section 53094’s purpose – namely, preventing local interference with the state’s sovereign activities.

While each charter school’s situation is unique, this decision will likely impact the siting of county-authorized charter schools and require increased collaboration between government entities when zoning serves as an impediment to locating a charter school facility.

For more information on the San Jose Unified School District opinion or the Charter Schools Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Charter School Practice Group or at one of our nine offices located statewide. You can also visit our website , follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward Sklar

Partner

Erin Hamor

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Closely Watched Charter School Decision Becomes Binding Precedent

January 2017
Number 5

The Third District Court of Appeal’s decision in Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262 (Anderson) is now binding law in California. Following successful legal argument by Lozano Smith, the court, on October 17, 2016, confirmed that the geographic and site limitations of the Charter Schools Act (Act) are applicable to all charter schools, including “nonclassroom-based” programs. On January 18, 2017, the California Supreme Court denied the charter school’s petition for review and request for depublication of the appellate court’s opinion.

As Lozano Smith reported earlier (see 2016 Client News Brief No. 79), the Anderson Union High School District (AUHSD) sued the Shasta Secondary Home School (SSHS) to stop SSHS from improperly locating a facility within AUHSD’s boundaries. SSHS’s charter was authorized by a neighboring school district, and the school did not seek the consent of its authorizer or AUHSD before locating a “resource center” within AUHSD’s boundaries. The Court of Appeal, which evaluated the legislative history of the Act and the rules of statutory construction, determined that all charter schools, even non-classroom based programs that operate “resource centers,” must comply with the Act. The court concluded that charter schools are prohibited from operating facilities outside of the geographical boundaries of their authorizing school district, subject to limited exceptions. By emphasizing the importance of effective local oversight, this decision is a victory for charter school accountability.

This decision will have wide-ranging impacts on charter schools, school districts and county offices of education. While each situation is unique, the education community is already seeing attempts by charter schools to remedy the practice of operating facilities outside their authorizing district’s boundaries. Authorizers should be proactive and review where nonclassroom-based programs are operating in order to ensure compliance with the law. School districts in which out-of-district charters’ facilities are located may receive new charter petitions. Educational entities providing support services such as special education or back office services should consider the potential impacts of closure or relocation on these relationships. Since no two situations will be identical, we encourage school districts and county office of education impacted by this decision work closely with legal counsel to evaluate potential solutions.

Over the past several years, Lozano Smith’s Charter School Practice Group, now led by Edward Sklar and Ryan Tung, have regularly advised school districts on the exact issue resolved by the Court of Appeal. AUHSD was represented by Lozano Smith partners Megan Macy, Sloan Simmons and Anne Collins.

For more information on the Anderson opinion or the Charter Schools Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Charter School Practice Group, Litigation Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Megan Macy

Partner

Edward Sklar

Partner

Ryan Tung

Associate

 

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.