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.

California Court Rules that Charter Schools Generally Cannot Locate Outside of Their Authorizing School District’s Boundaries

October 2016
Number 79

In a case watched closely by the charter school community – including school districts, county offices of education and charter operators – California’s Third District Court of Appeal has issued an opinion which holds that the geographic and site limitations of the Charter Schools Act (Ed. Code, § 47600 et seq.) are applicable to all charter schools, including “nonclassroom-based” programs. (Anderson Union High School District v. Shasta Secondary Home School (Oct. 17, 2016) ___ Cal.App.4th ___.)

Represented by Lozano Smith, Anderson Union High School District (AUHSD) brought suit against Shasta Secondary Home School (SSHS) to stop the improper establishment of a charter facility within AHUSD’s boundaries. SSHS was authorized by a neighboring school district and did not seek the consent of its authorizer or AHUSD before locating a “resource center” within AUHSD’s boundaries.

At issue in this case are two statutes: Education Code section 47605, which requires a charter school generally to operate within the geographic boundaries of its authorizing school district; and Education Code section 47605.1, which provides a very limited exception for charter schools to locate certain satellite facilities to support independent study in adjacent counties. In reversing the trial court, the Court of Appeal thoughtfully evaluated the legislative history of the Charter Schools Act and multiple rules of statutory construction, concluding that the relevant statutes indeed say what they mean: All charter schools must comply with the Charter Schools Act, including its geographic restrictions for the operation of charter schools. As such, the plain language of the Charter Schools Act limits in-county resource centers located outside of the chartering district.

Behind this technical legal issue is a cottage industry of charter schools operating nonclassroom-based programs, availing themselves of a perceived loophole in the Charter Schools Act that would allow them to locate at will, without the consent of their authorizer or the school district in which they are encroaching. The court’s opinion dispels of the notion that such a loophole exists. Importantly, nonclassroom-based programs are not limited to independent study or homeschooling, in the traditional sense. Rather, these programs often operate seat-based instruction up to four days per week and are funded at the same level as traditional public schools. Certain charter operators around the state have increasingly sought to utilize this nonclassroom-based model, and to receive authorization from one school district and then locate in a different school district. Flowing from this practice are a host of unintended consequences, including challenges for the authorizer providing oversight to the charter schools and elimination of local school district sovereignty over the educational programs provided in its community. The Court of Appeal’s opinion is poised to end the abuses of charter schools utilizing this practice. The opinion benefits not only school districts in general, but also the vast majority of charter schools that operate in compliance with the Charter Schools Act and in cooperation with their authorizers and neighboring school districts.

The Anderson Union High School District opinion has been certified for publication and now constitutes precedent on this issue, unless or until the California Supreme Court grants review of the case, which could impact the precedential value of the opinion. SSHS, which has been supported through amici curiae California Charter Schools Association and others at the Court of Appeal level, now has relatively short deadlines to seek reconsideration of the opinion by the Court of Appeal and to otherwise seek review from the California Supreme Court.

AHUSD was represented by Lozano Smith partner and Litigation Practice Group Co-Chair Sloan Simmons, partner and Charter School Practice Group member Megan Macy, and senior counsel Anne Collins, who is a member of both the firm’s Charter School and Litigation practice groups. Lozano Smith Charter School Practice Group co-chairs and partners Edward Sklar and Devon Lincoln have regularly advised school districts on the exact issue resolved by the Court of Appeal in this case over the past several years.

For more information on the Anderson Union High School District opinion, the Charter Schools Act, and both administrative or litigation considerations related to both, please contact the authors of this Client News Brief or an attorney at one of our 10 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

Sloan Simmons

Partner

Devon Lincoln

Partner

Edward Sklar

Partner

 

©2016 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.

Requirement to Offer Surplus Property to Interested Charter Schools Prior to Sale or Lease No Longer in Effect

July 2016
Number 44

School districts selling or leasing surplus property are no longer required to first offer that property to interested charter schools. The requirement has expired and is no longer effective as of July 1, 2016.

Surplus property is real property belonging to a school district that is not needed for school classroom buildings. Before a school district can dispose of surplus property, it must generally take certain steps, which include making written offers or solicitations to sell or lease the property to various statutorily designated agencies. (Ed. Code, §§ 17455, et seq.) If the property remains unsold or unleased after this process, it can be put out to bid to the general public.

Education Code section 17457.5, which became effective on June 27, 2012, required school districts seeking to sell or lease surplus property to first offer that property to any charter school that had submitted a written request to be notified of surplus property offered for sale or lease. Such offers were required for any property designed to provide instruction or instructional support, and interested charter schools received priority over other entities.

Section 17457.5 was originally set to become inoperative on June 30, 2013, and to be repealed on January 1, 2014. However, as part of the trailer bills adopted to implement the 2013-2014 state budget, these deadlines were extended to July 1, 2016. That date has now passed without further legislative action. As a result, the charter school requirements of section 17457.5 are no longer in effect.

We will continue to monitor and provide updates regarding any future legislation related to surplus property. The sunsetting of section 17457.5 does not impact any other school district obligations to charter schools under Proposition 39 or otherwise.

If you have any questions regarding this Client News Brief, or surplus property issues in general, 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 orTwitter, or download our Client News Brief App.

School districts are also invited to review our Checklist for Sale or Lease of School District Surplus Property, which describes the requirements and other rules applicable to the lease or sale of surplus school property in detail. To access a copy of the most recent edition of the Checklist, click here.

Written by:

Harold Freiman

Partner

Kelly Rem

Senior Counsel

 

©2016 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.

Reminder – Looming June 30 Deadline for Posting Competitive Athletics Data

June 2016
Number 36

The 2015-16 school year marks the first time that public elementary and secondary schools that offer “competitive athletics” must post data about the gender makeup of their teams and their student participation. Charter schools must also comply.

By June 30 of each school year starting in 2016, each school must make the following information available on its website:
1) The total enrollment of the school, classified by gender;
2) The number of pupils enrolled at the school who participate in competitive athletics, classified by gender; and
3) The number of boys’ and girls’ teams, classified by sport and by competition level.

If the school does not have a website, the data must be posted on the website of the school district or charter operator.

This requirement is found in Education Code section 221.9, which defines “competitive athletics” to mean sports where the activity has coaches, a governing organization and practices, competes during a defined season, and has competition as its primary goal.

Section 221.9 does not include a specific exception or any other guidance for schools that do not offer any competitive athletics. Those schools may consider posting a notice simply stating that they do not offer competitive athletics.

As we previously reported (see 2015 Client News Brief No. 76), the legislative history of Education Code section 221.9 indicates that a major purpose of this new law is to make it easier to monitor and enforce Title IX and state requirements for gender equity in public school athletics. Because of the increasing focus on gender equity issues, it is more important than ever for schools and districts to monitor and ensure compliance with Title IX’s numerous requirements.

Lozano Smith has dedicated additional focus to this area by forming a Title IX Impact Team that can assist districts with addressing legal needs related to Title IX and gender equity.

If your school site or district needs sample language for these new posting requirements or additional information, please contact 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:
Ruth Mendyk
Partner

Desiree Serrano
Associate
©2016 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.