SB 98 Impacts on Charter Schools

July 2020
Number 60

Senate Bill (SB) 98, the Budget Education Trailer Bill, signed by Governor Gavin Newsom on June 29, 2020, has several impacts specific to charter schools.

Changes Related to Assembly Bills (AB) 1505 and 1507

SB 98 includes several provisions that amend and/or clean-up provisions of the Charter School’s Act (the Act) codified under AB 1505 and AB 1507, including:

  • Renewal Criteria: Under recent charter school reform legislation, charter schools up for renewal are separated into three categories based on their performance on the California Dashboard: “high performing,” “middle performing,” and “low performing.” SB 98 provides that for a “high performing” or “low performing” charter school for which the two consecutive years immediately preceding renewal include the 2019-20 school year, the authorizer shall consider the charter school’s performance on the Dashboard for two of the three years immediately preceding the renewal decision instead of only the two years immediately preceding the renewal decision. This means that for a charter school meeting this prerequisite, the authorizer can look back one extra year in assessing the charter school’s performance on the Dashboard. The amendment is intended to solve for the absence of Dashboard data for the 2019-20 school year due to the suspension of California assessments as a result of the COVID-19 pandemic. Absent this amendment, all charter schools for which the two consecutive years immediately preceding renewal included the 2019-20 school year would have automatically been placed in the middle performing category.
  • Grounds for Denial: SB 98 clarifies that for a material revision, the two new grounds for denial added by AB 1505 – whether the charter school will serve the interests of the entire community in which the charter school is proposing to locate, and whether or not the district is positioned to absorb the fiscal impact of the proposed charter school – may only be considered relative to the impact of the proposed material revision, and not the entire charter school program.
  • Status as a Continuing Charter School: AB 1507 eliminated the two exemptions which permitted a charter school to locate outside the geographic boundaries of its authorizer. Pursuant to AB 1507, a charter school located outside the geographic boundaries of its authorizer pursuant to one of these exemptions prior to January 1, 2020, may be grandfathered in by either obtaining permission from the school district in which the charter school is located or by submitting its renewal petition to the charter school in which it is located, depending on the applicable grandfathering provision. AB 1507 further specified that a charter school authorized by a different authorizer because of changes in the law, and which was providing educational services to students prior to July 1, 2019, will be regarded by the California Department of Education (CDE) as a “continuing charter school” for all purposes, including funding determinations. SB 98 clarifies that in order for a charter school satisfying the grandfathering provisions of AB 1507 to be regarded as a “continuing charter school,” the charter school must notify the CDE by May 15 before the fiscal year in which the charter school is to be regarded as a continuing charter school.

For more details regarding AB 1505 and AB 1507, see our 2019 Client News Brief Number 49.

Miscellaneous Provisions

SB 98 also makes the following changes impacting charter schools:

  • A charter school is not required to request a material revision to its charter to offer distance learning pursuant to the provisions of SB 98.
  • A charter school that is scheduled to open or add grade levels during the 2020-21 school year may delay opening or adding grade levels for one year without a request for material revision. Note, the charter school must have provided notice to its chartering authority and the CDE of that decision no later than July 17, 2020.
  • SB 98 clarifies that the State Board of Education cannot waive the requirements of SB 126, which expressly states that charter schools and entities managing charter schools are generally subject to the Ralph M. Brown Act, the Political Reform Act of 1974, Government Code Section 1090, and the California Public Records Act. For more information regarding SB 126, see our 2019 Client News Brief Number 15.

Takeaways

SB 98 makes several significant changes impacting charter schools. If you have any questions regarding the impact of SB 98 on charter schools, or regarding 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 subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Courtney de Groof

Associate

©2020 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.

Teachers’ Union Prevails at PERB in Effort to Organize Charter Schools

July 2020
Number 54

The Public Employment Relations Board (PERB) recently held that a teachers’ union’s petitions for recognition at three charter schools were appropriate under the Education Employment Relations Act (EERA). Most importantly, PERB held that the union demonstrated sufficient majority support among employees of the schools to be certified as the exclusive representative of each school.

In this case, the United Teachers Los Angeles (UTLA) filed three separate petitions for recognition with PERB, seeking to represent teachers and counselors at three charter schools. Each of the three charter schools operated as a separate non-profit corporation and had an administrative services agreement with a non-profit charter management organization called Alliance College-Ready Public Schools (Alliance). Each school was a member of the network of 25 Alliance-affiliated charter schools. Alliance schools refused to recognize UTLA as the exclusive representative of the three schools, contending that the 25 school network constituted a single-employer and the appropriate bargaining unit must encompass all teachers and counselors within the entire 25 school network. Therefore, Alliance argued, the union could not organize on a school-by-school basis.

In determining whether a bargaining unit is appropriate, the EERA requires PERB to decide the question based on the community of interest, employer efficiency, and established practices. PERB found that there was sufficient community interest to support school-by-school units when considering the record of various Alliance cases as a whole. Alliance argued that a network-wide unit would be more efficient, but PERB pointed out that employer efficiency does not trump an employee’s right to representation. Lastly, when analyzing Alliance’s established practice, PERB pointed out that the practice in which UTLA relied was established in Alliance’s prior declarations that each school was an independent employer, in the schools’ individual charters, as well as prior PERB cases involving Alliance in which the schools strenuously asserted their autonomy. Thus, Alliance’s established practice undermined their own argument that only a network-wide bargaining unit is appropriate.

PERB also considered the Peralta presumption, which states that all certificated employees of a “public school employer” should normally be included in a single bargaining unit. Here, all three schools filed declarations that they were a “public school employer” for purposes of the EERA, and PERB reasoned that, to the extent it applies, Peralta largely favors school-by-school units. The schools contended that PERB should disregard these declarations and rely on California Virtual Academies (2016) PERB Decision No. 2484 (CAVA). In CAVA, a union asserted that 11 charter schools satisfied the single employer test and, using Peralta, PERB supported granting the union’s request to find a network-wide unit to be appropriate. Alliance asked PERB to extend Peralta and find that, where the single employer test is satisfied, a single unit of all employees of the single employer is the only appropriate bargaining unit. PERB found that to be a bridge too far and concluded that the schools’ declarations and underlying charters, together with the record as a whole, were sufficient to establish each individual school as a “public school employer.”

In prior unfair practices cases before PERB, Alliance had taken the exact opposite tact. Alliance schools successfully opposed UTLA’s motions seeking to name every Alliance charter school as a respondent by denying the existence of any “single-employer” entity. The single employer doctrine says that PERB must consider: (1) functional integration of operations, (2) centralized control of labor relations, (3) common management; and (4) common ownership. The burden belongs to the schools to show, not only that they are part of a single-employer construct, but also that the only appropriate unit includes all certificated personnel within the purposed single-employer. PERB pointed out that the schools’ evidence to meet their burden was directly contradicted by the evidence in their prior unfair practice cases. Specifically, PERB stated, “the Charter schools’ evidence regarding the four-factor single-employer test established that they have spoken out of both sides of their mouths throughout the different proceedings.” Consequently, PERB concluded that the schools’ inconsistent arguments between PERB matters confirmed they could not meet their burden. It is important to note that in this particular case, PERB chose not to analyze the schools through the single-employer doctrine, but found for UTLA because Alliance schools benefited from prior PERB rulings based on the schools’ past representations and UTLA, to their detriment, relied on those representations.

PERB considered the record of various Alliance cases as a whole and determined that school-by-school organizing was appropriate in this instance because each school legally declared itself to be a separate public school employer for the purposes of EERA. Further, PERB found that UTLA demonstrated majority support among the employees of each school, and certified UTLA as the exclusive representative of each school.

Takeaways

  • When determining the appropriateness of network-wide or school-by-school union representation, PERB looks at the community of interest, employer efficiency, and established practices.
  • Alliance’s shifting and inconsistent arguments between PERB matters seemed to lead PERB to decide against Alliance in this matter.

If you have any questions regarding this decision or charter schools in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Everett J. McLean

Law Clerk

©2020 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.

Governor Newsom Signs Two Bills Aimed to Assist Local Educational Agencies During COVID-19 Crisis

March 2020
Number 19

On March 17, 2020, Governor Gavin Newsom signed two bills, Senate Bill (SB) 117 and SB 89, into law which provide for emergency funding to help fight the novel coronavirus (COVID-19) pandemic and help to clarify the law as it relates to school districts. The bills address several issues confronting school districts, county offices of education, and charter schools. SB 117 provides necessary funding, ensuring that local educational agencies (LEAs) may continue to operate, and waives various requirements and deadlines otherwise required by law. SB 89 provides for significant funding to be used to assist individuals, nonprofit organizations, and small businesses experiencing economic hardships due to the impacts of COVID-19. Both bills took effect immediately. Below are highlights of each bill.

Senate Bill 117

School Funding.

For purposes of Average Daily Attendance (“ADA”) reporting to determine funding, LEAs need only report their ADA from July 1, 2019 to February 29, 2020, rather than July 1, 2019 to April 15, 2020. This has the effect of providing full state funding for closed schools, as described and required by Executive Order N-26-20, with the stated intent to ensure that employees and contractors are compensated and paid during the time that a school is closed due to the COVID-19 pandemic. Because the legislation did not include details related to this compensation piece, some districts are grappling with how best to implement this provision.

Similarly, the bill provides that for After-School Education and Safety programs, LEAs will receive funding based on the ADA they would have reported but for the school closure.

The bill also appropriates $100 million from the state’s general fund to be provided to certain LEAs for purposes of purchasing personal protective equipment, or paying for supplies and labor related to cleaning school sites, or both.

Instructional Time.

Schools that are closed are excused from the instructional time requirement. The requirement will be deemed to have been met upon written certification that the school was closed due to COVID-19 on a form unique to the current situation, rather than by following the typical waiver procedure.

Assessments.

SB 117 provides a 45-day extension for LEAs to administer English Learner proficiency assessments (normally required upon a pupil’s initial enrollment and at least annually during a four-month period after January 1).

SB 117 provides for an extension of the testing window to perform such English Learner assessments (English Language Proficiency Assessments of California or “ELPAC”), equal to “the length of time a school is closed due to COVID-19, or until the end of the testing window, whichever comes first.” The same extension applies to the testing window for the California Assessment of Student Performance and Progress (CAASPP), and the physical performance test.

On March 18, 2020, a day after SB 117 was signed into law, the California Department of Education announced that it had suspended all CAASPP testing and ELPAC testing for the 2019-2020 school year, and had placed the physical fitness test on hold until students returned to school.

Moreover, while not covered under SB 117, on March 20, 2020, Secretary of Education Betsy DeVos announced the United States Department of Education will grant a waiver to any state that is unable to assess its students due to the ongoing national emergency, providing relief from federally mandated testing requirements for this school year. Any state that receives this waiver may also receive a waiver from the requirement that this testing data be used in the statewide accountability system due to the national emergency. On March 26, 2020, California’s waiver application was submitted and the U.S. Department of Education issued its preliminary approval. The public comment period for all stakeholders and LEAs is open through April 15, 2020.

Special Education & Student Records.

SB 117 extends the 15-day timeline a district has to propose an assessment plan to determine if a student requires an Individualized Education Plan (IEP) by the number of days the school is closed-in effect, the 15-day period is paused during the time the school is closed and begins running once the school reopens and the regular school session reconvenes.

Under existing law, parents of special education students have the right to examine and receive copies of the student’s records within five business days, before any IEP meeting, and before any hearing or resolution session. The bill excuses LEAs that have closed from meeting these timelines, up until the school reopens and the regular school session reconvenes. However, the bill explicitly encourages LEAs to respond as expeditiously as possible to requests from parents or guardians received during the period of time a school is closed due to COVID-19. Because of what appears to be a Legislative oversight, some parents might assert that LEAs must respond to student records requests (within five business days), including the transfer of records to a student’s new school district (within ten schooldays), according to normal timelines. LEAs should assume that the rules applicable to records requests under SB 117 apply to all student records requests, resulting in the waiver of timelines until COVID-19 school closures end. Still, LEAs should respond to parent requests during this time period “as expeditiously as possible.” With this in mind, if an LEA knows that, due to COVID-19 school closures, it is unable to comply with a request for records within the normal five business day timeline or the timeline to transfer records to a student’s new school, the LEA is best served to provide notice of this in writing to parents who request records during this time period. Note that timelines under the IDEA and FERPA still apply. For advice on guidance on how to respond to records requests during closures, please see our CNB.

Charter Schools.

A charter school that does not have an independent study program or distance learning program in its currently approved charter petition does not need to submit a request to alter its charter petition to offer independent study or distance learning programs during the period of time the charter school is closed due to COVID-19.

State-Subsidized Childcare and Development Programs.

Such programs are exempt from attendance and reporting requirements, subject to guidance from the State Superintendent of Public Instruction to ensure the continuity of payments. Pursuant to guidance and direction from the Superintendent, childcare and development programs shall be reimbursed using the most recent certified record or invoice available.

Uniform Complaint Procedure.

Timelines included in the uniform complaint procedure are extended by the length of the school’s closure due to COVID-19.

Senate Bill 89

SB 89 appropriates $500 million from the General Fund-and up to $1 billion over time-to be used to provide assistance related to the impacts of COVID-19. The intent is to assist individuals, nonprofit organizations, and small businesses experiencing economic hardships due to the impacts of COVID-19.

Related Resources

The legal and practical realities of the current crisis are ever-changing. In our continued effort to equip public agencies with useful insights, we have compiled a suite of links to several resource and guidance documents and webpages available from the federal and state governments regarding COVID-19. You can access them here: http://www.lozanosmith.com/covid19.php.

For more information on issues arising from COVID-19, please contact one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Aimee Perry

Partner

Angela J. Okamura

Associate

©2020 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 Law Prohibits Barriers To Charter School Enrollment

November 2019
Number 69

A new law is intended to discourage the improper recruitment and disenrollment of charter school students, particularly students who belong to certain protected classes. Recently signed by Governor Newsom, Senate Bill (SB) 75 adds a provision to California’s Charter Schools Act to prohibit charter schools from discouraging a student from enrolling or continuing to enroll in the charter school.

The law lists explicitly unlawful bases for “counseling out” students and their families, including nationality, race, ethnicity, sexual orientation, or if a student exhibits characteristics of: a disability; an academically low-achieving student; an English learner; a neglected or delinquent student; a homeless student; a student who is economically disadvantaged; or a foster youth. In furtherance of the law’s purpose, charter schools are also prohibited from requesting a student’s records, or requiring a parent, guardian, or student to submit the student’s records to the charter school, prior to enrollment. Historically, charter schools have always been required to accept all students that are California residents, regardless of academic achievement, disability, economic status, etc. Here, the California Legislature recognizes problems that have arisen, where certain groups of students were being discouraged from enrolling, or encouraged to disenroll, in some charter schools.

Under the law, the California Department of Education (CDE) is directed to develop a notice and complaint form stating the new legal requirements, and charter schools are required to post the notice on their respective websites. Charter schools also now have an affirmative duty to provide a copy of the CDE notice to parents, guardians, and students over age eighteen when the parent, guardian, or student over age eighteen inquires about enrollment; before conducting an enrollment lottery; and before the disenrollment of any student. In order to ensure enforcement, any member of the public has a right to file a complaint with the charter school’s authorizer, often the local school district, if the person suspects a charter school has violated the provisions of this law. CDE’s notice and complaint form can be found at https://www.cde.ca.gov/sp/ch/cscomplaint.asp.

Although the law creates a process for aggrieved families to complain to charter authorizers, it is silent regarding exactly what action a charter authorizer must take when it receives a complaint. The recently revised statutes regarding charter school renewals, which go into effect in July 2020, shed some light onto the complaint review process (See 2019 Client News Brief No. 49). The law now indicates that, when determining whether to renew a school’s charter, an authorizer must consider, along with other criteria, any substantiated complaints that the charter school has not complied with the new enrollment requirements described above. The determination of whether a complaint is “substantiated” is left to the charter authorizer, and thus the law infers that charter authorizers must develop their own complaint investigation processes. Still, some questions remain unanswered. For example, if the authorizer investigates the complaint and discovers a potential legal violation, what action is the charter authorizer supposed to take, aside from considering whether to revoke the charter? The new law does not appear to create an enforcement mechanism, aside from considering compliance during the charter renewal process.

Takeaways

Charter schools and charter authorizers should be careful to ensure that charter schools are not discouraging any student from attaining or maintaining charter school enrollment. Charter schools must be extra careful when dealing with students who are members of the groups specifically protected under the law. Since the law took immediate effect in July, charter schools should post the CDE notice and complaint form on their websites and implement clear policies for staff regarding the distribution of the CDE notice, in short order. Note that charter schools are still permitted to suspend or expel students for disciplinary reasons, so long as such discipline conforms to federal and state statutory and constitutional due process requirements, and is otherwise consistent with the law, and the processes laid out in the charter.

If you have any questions about SB 75, the amendments to the Education Code regarding charter schools, or charter school student enrollment 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 subscribe to our podcast, follow us onFacebook, Twitter and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Sophia V. Cohn

Associate

©2019 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.

Governor Newsom Signs Comprehensive Reforms for Charter Schools

October 2019
Number 49

In the largest overhaul of California’s Charter Schools Act (“Act”) since it was enacted in 1992, Governor Gavin Newsom signed AB 1505 and AB 1507 on October 3, 2019. The Act authorizes the establishment and operation of charter schools in California. The closely watched and hotly debated reforms impact most aspects of charter school authorization, including oversight, appeals, and renewals. Enactment of AB 1505 and AB 1507 follows months of negotiations and compromises from both sides in the ongoing charter school debate.

Background

Charter schools operate independently from school districts, but they require oversight from the school district or county board that authorizes them. In the last decade, California has seen unprecedented growth in the number of charter schools. According to the California Department of Education (“CDE”), there were approximately 1,306 charter schools and seven all-charter districts in California at the beginning of the 2018-19 academic year. With this growth has come criticism that the law was not keeping pace with necessary checks and balances on charter school operation and the impacts charter schools have on public school districts. These bills were introduced to correct deficiencies and close loopholes brought to light by litigation, including Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262 handled by Lozano Smith (see Client News Brief), as well as a subsequent Legislative Audit examining charter school operation and oversight, and the work of the Governor’s California Charter School Policy Task Force.

AB 1505

Most provisions of AB 1505 are set to go into effect on July 1, 2020. Major highlights of AB 1505 include the following changes:

  • Petition Approval Criteria. When considering whether or not to grant or deny a petition for a new charter school, a district may consider whether the charter school will serve the interests of the entire community in which the charter school is proposing to locate. Further, if a district meets certain criteria, the district may also consider whether or not it is positioned to absorb the fiscal impact of the proposed charter school.
  • Petition Review Timelines. The timeline for a school district to review an initial charter petition and a renewal petition has been extended. The district must hold a public hearing to consider the level of support for the petition 60 days after the petition is submitted, and the district must now hold a second public hearing to take action on a petition 90 days after the petition is submitted. Additionally, the governing board of a school district or county board of education is now required to publish all staff recommendations and findings regarding a charter petition at least 15 days before the public hearing at which the board will either approve or deny the initial or renewal petition. Petitioners must also be afforded equivalent time to present evidence and testimony to the governing board at the public hearing in which the petition will be approved or denied.
  • Petition Renewal Criteria. Charter petition renewals will be considered under a 3-tiered system whereby authorizers must consider the academic performance of the charter school on the state indicators included in the evaluation rubrics (the “Dashboard”) adopted by the State Board of Education (“SBE”). Under the tiered system, a “high performing” charter school may be renewed for five to seven years, an “average performing” charter school may be renewed for five years, and a “low performing” charter school, generally, may not be renewed. However, under certain conditions, a “low performing” charter school may be renewed for a two year period. Additionally, the requirement to consider increases in pupil academic achievement as the most important factor in determining whether to grant or deny a renewal has been eliminated.
  • Appeal Process. The new law modifies the appeal process for denials of a new charter school petition or renewal of an existing charter at both the county and state level in a variety of ways. For example, a petition submitted on appeal to a county board of education or the SBE containing “new or different material terms” will be immediately remanded back to be reconsidered by the district within 30 days of remand. Additionally, districts and county boards of education are required to prepare and submit an administrative record to the SBE upon request of the petitioners. The SBE may only reverse the denial of a petition or renewal if it finds there was an “abuse of discretion” by the county or district, or both. If a petition is approved on appeal to the SBE, either the district or county office of education will be designated as the authorizing authority, effectively eliminating the SBE as a charter school authorizer.
  • Nonclassroom-Based Charter Schools. The new law creates a 2-year moratorium on the approval of a petition for the establishment of a new charter school offering nonclassroom-based instruction, effective January 1, 2020 to January 1, 2022. According to the California Charter School Policy Task Force Report, the two year freeze on nonclassroom-based charter school will allow advocates to spend the time studying issues related to the establishment of nonclassroom-based charter schools, such as their operational practices and performance, and to make further recommendations to ensure students are receiving appropriate instruction.
  • Teacher Credentialing. Under prior law, charter school teachers were only required to hold a state-approved credential if teaching a Core course. Under the new law, all teachers hired after July 1, 2020 must have the appropriate credential for their certificated assignment regardless of whether they teach a core subject. All teachers employed at a charter school during the 2019-2020 school year without a credential will have until July 1, 2025 to obtain the appropriate credential for their certificated assignment. By July 1, 2020, all charter school teachers must also obtain a certificate of clearance and satisfy the requirements for professional fitness under the Education Code.

AB 1507

AB 1507 makes two major changes to the location requirements for charters schools, effective January 1, 2020.

  • Charter School Location. Under prior law, a charter school that was unable to locate within the geographic boundaries of its authorizing district was permitted to establish one site outside the boundaries of the school district, but within the county in which that school district is located, if specific requirements were satisfied. AB 1507 eliminates this loophole and requires all charter schools to locate within the geographic boundaries of the authorizing district. A charter school lawfully established outside the boundaries of the authorizing district, but within the county, before January 1, 2020, may continue to operate at the site until the charter school submits a renewal petition. At that time, to continue operating at the same location, the charter school must either obtain written approval from the district where the charter school is operating, or submit a renewal petition to the district in which the charter school is located.
  • Resource Centers. Under prior law, a nonclassroom-based charter school was able to establish a resource center in a county adjacent to the county in which the charter school was authorized, if certain conditions were met. The new law eliminates the ability of a nonclassroom-based charter school to establish a resource center in an adjacent county. A charter school that was lawfully operating a resource center outside the geographic boundaries of the authorizing district before January 1, 2020, may continue to operate at the site until the charter school submits a renewal petition-at which time the charter school must obtain written approval from the district where the resource center is located to continue operations at the same site.

Charter School Toolkit

Lozano Smith will soon be publishing an in-depth resource with important background information, answers to frequently asked questions, an implementation checklist, and more, regarding the recent amendments to the Act. If you are interested in receiving the toolkit, please email Client Services.

Takeaways

The current legislation reflects a shift in the charter school debate in this state. Rather than an emphasis on the performance of charter schools compared to district operated schools, the changes in the Act reflect a focus on the fiscal and operational impacts that new and existing charter schools have on public school districts. The enactment of AB 1505 and AB 1507 signals a policy shift in California and marks a victory for school districts that have been advocating for more local control of the approval, renewal, and oversight process. However, as part of the legislative compromise process, some significant new obligations have been placed on districts and will likely have long term impacts on the charter school landscape in California. In the short term, school districts should expect an influx of charter petition submissions in the coming months in anticipation of the comprehensive reforms going into effect on January 1, 2020 and July 1, 2020.

If you would like more information regarding AB 1505 and AB 1507, or if you have any questions regarding charter school authorization and oversight generally, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our Podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Megan Macy

Partner

Erin M. Hamor

Senior Counsel

Courtney de Groof

Associate

©2019 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 Law Allows Former Students To Change Name And Gender On Past Student Records

October 2019
Number 48

Assembly Bill (AB) 711 establishes a process for former students to change their name and gender on pupil records, including diplomas.

Existing law requires school districts to maintain and preserve, in perpetuity, certain mandatory pupil records, even after a student graduates. AB 711 was enacted to address the needs of former students and to protect their privacy rights. Prior to the enactment of this statute, former students’ prior legal names (or “dead names”) and/or gender were being inadvertently disclosed by school districts to colleges and employers with the release of their transcripts. This bill makes it easier for former students to request the pupil records maintained by a school district be changed to reflect their preferred name and/or gender on student records maintained by a school district. Notably, the AB 711 also includes diplomas as a document that may be reissued, even though diplomas are typically considered ceremonial documents and not pupil records maintained by school districts.

Under AB 711, in order for a former student’s name and/or gender to be changed on mandatory permanent records, the former student must provide legal documentation of the change. If the former student does not provide documentation of the change, they may still proceed to change their name and/or gender through the standard process for amending student records, birth certificates, passports, social security cards, or court orders indicating a name change or a gender change, or both.

Additionally, AB 711 requires that school districts add a document containing the following information to the former student’s file after the request is completed:

  • The date of the request;
  • The date the requested records were reissued to the former pupil;
  • A list of the records that were requested by, and reissued to, the former pupil;
  • The type of documentation provided by the former pupil in order to demonstrate the legal name or gender change;
  • The name of the school district, charter school, or county office of education staff person that completed the request; and
  • The current and former name or gender of the former pupil.

Takeaways

School districts should review what policies and forms they have to request name and gender changes, and ensure that those forms are in compliance with Senate Bill 179 (See 2018 CNB No. 13) and AB 711. These forms should reflect the option for former students to change their gender on student records, including with the non-binary gender marker.

If you have questions regarding AB 711, pupils records, or student issues 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 subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Edward J. Sklar

Partner

Gayle L. Ketchie

Associate

©2019 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.

Governor Signs Charter Transparency Bill

March 2019
Number 15

Newly elected Governor Gavin Newsom has signed a bill aimed at increasing charter school transparency. Senate Bill (SB) 126 settles, once and for all, the debate over whether charter schools and their governing bodies are subject to California’s open meeting, conflicts of interest, and public records laws.

Background

Previous attempts to pass legislation intended to make charter schools subject to California’s “sunshine laws” were vetoed by former Governor Jerry Brown. By comparison, SB 126 was fast-tracked through the Legislature at the Governor’s urging. The new law comes on the heels of a December 26, 2018 Attorney General opinion which concluded that charters schools were subject to sunshine and conflict of interest laws under the existing statutory scheme. (See 2019 Client News Brief No. 7.) Unlike the statute, the Attorney General opinion was advisory, but not binding.

SB 126

SB 126, which will take effect on January 1, 2020, makes charter schools and entities managing charter schools subject to the Ralph M. Brown Act (Brown Act), the California Public Records Act (Public Records Act), Government Code section 1090 and the Political Reform Act of 1974 (Political Reform Act).

While these laws have never explicitly exempted charter schools, SB 126 specifically provides that charter schools will be held to the same transparency and accountability standards as other public and local agencies, including school districts. In the past, charter authorizers sometimes entered into separate agreements with charter schools mandating compliance with these laws, something that will no longer be necessary once SB 126 takes effect.

Compliance with the Brown Act will impact the practices of many charter schools and the entities managing charter schools. Among other things, the bill requires charter school governing bodies to hold meetings within the physical boundaries of the county where the charter schools are located, or, within the county in which the greatest number of pupils reside if the governing body operates charter schools in multiple counties. SB 126 also requires charter schools to establish two-way teleconference locations at each school site. These provisions may provide more students, parents and community members the opportunity to attend governing board meetings, which has not always been possible when charter schools are managed by entities located outside of counties where their charter schools are located.

SB 126 also requires charter schools and entities managing charter schools to:

  • Comply with California’s Public Records Act, which requires that state and local entities make their records available for public inspection or copying unless exempt from disclosure;
  • Adopt a conflict of interest policy as required by the Public Reform Act; and
  • Comply with the prohibitions against self-dealing in public contracts as required by Government Code section 1090. SB 126 permits an employee of the charter school to serve on the charter’s governing board regardless of the employee’s employment status, but the employee must abstain from voting on matters that could affect his or her employment.

Of note, SB 126 does not include any “grandfathering” language that would exempt existing charters from compliance with the new law; thus, all charter schools must be in compliance when the law takes effect on January 1, 2020.

Takeaways

SB 126 provides long awaited guidance clarifying that charter schools are subject to the same transparency laws as other public and local agencies. Authorizing school boards or county boards of education should consider reviewing and amending their policies governing charter schools to ensure the charter schools they authorize and oversee are in compliance when SB 126 takes effect on January 1, 2020. Going forward, charter schools will need to review and revise their policies and, possibly, their petitions to ensure that they are complying with all of the provisions of SB 126.

For additional information regarding SB 126 and its impact on charter schools and school districts, 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:

Claudia P. Weaver

Partner

Gayle L. Ketchie

Associate

©2019 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.

Sunshine Laws To Begin Shining On Charter Schools: Charter Schools Subject To Public Transparency Laws

January 2019
Number 7

The California Attorney General recently issued a long-awaited opinion addressing the applicability of certain “sunshine” laws to charter schools. Specifically, the Attorney General concluded that California charter schools and their governing bodies are subject to the Ralph M. Brown Act (Brown Act), the California Public Records Act (Public Records Act), Government Code section 1090 and the Political Reform act of 1974. The opinion further states that the books and records of schools chartered by either a school district or a county board of education are subject to review and inspection by a grand jury.

Background

By design, California charter schools are explicitly exempt from many laws that apply to school districts. However, the laws addressed by the Attorney General opinion are some of the broadest public integrity laws in the state, and have never explicitly exempted charter schools. It should be noted that the request for this opinion was made seven years ago. It is our understanding that the Attorney General was waiting for the Legislature to answer these questions. Under Governors Schwarzenegger and Brown, the Legislature adopted bills stating that charter schools did need to comply with the Brown Act, Public Records Act, and conflicts of interest laws, only to have such bills vetoed by both Governors.

The Ralph M. Brown Act and the California Public Records Act

The Brown Act guarantees the public’s right to attend and participate in meetings of local legislative bodies. The Public Records Act establishes that the records of public agencies generally must be disclosed to the public when requested. The majority of charter school petitions in California state that the school will comply with the Public Records Act and Brown Act. However, prior to this opinion, there was frequent debate as to whether charter schools were, in fact, required by law to comply with these Acts.

In answering the question, the Attorney General observed that the Education Code contains a section establishing charter schools as school districts. Interpreting this principle liberally, the Attorney General determined that both Acts apply to charter schools in the same way that they apply to school districts or other local public agencies. The Attorney General’s reasoning was that both charter schools and school districts rely on public money. Therefore, both have an obligation to be transparent.

Government Code Section 1090

Government Code section 1090 is a broad prohibition against self-dealing in public contracts by public officials. Over time, the scope of section 1090 has expanded to include any agency or public official of the state. However, whether this conflict of interest law is applicable to charter schools has been the subject of significant debate over the past several years. Relying on prior case law, the Attorney General opined that the term “any agency or official” should be liberally interpreted to include charter schools and their officials. Therefore, members of charter schools’ governing boards should be deemed to be public officials in the meaning of section 1090, and are subject to the provisions of the statute.

Political Reform Act of 1974

The purpose of the Political Reform Act is to ensure that public officials perform their duties with impartiality and disclose any financial interests which may impact their vote. In 1998, the Fair Political Practices Commission (FPPC), which is charged with interpreting the Political Reform Act, concluded that board members of a charter school’s nonprofit corporation were subject to the Political Reform Act’s provisions on conflicts of interest. The Attorney General, in this opinion, gives deference to the FPPC in its decision that the governing body of a charter school that is organized as a corporation is subject to this law. Due to the prior FPPC opinions on this issue, many of California’s charter schools already operate in compliance with the Political Reform Act.

Books and Records in Grand Jury Proceedings

Generally, the books and records of school districts and county boards of education are subject to review during grand jury proceedings in accordance with California Penal Code section 933.6. The Attorney General opinion concludes that “any nonprofit corporation established by or operated on behalf of a public entity” which includes any charter school chartered by a local school district or county board of education, is subject to section 933.6.

However, the opinion concludes that charter schools that are chartered by the State Board of Education are not subject to grand jury review. This is because the State Board of Education is considered a state agency and not a local public entity for purposes of section 933.6. While these charter schools’ books and records would not be subject to grand jury proceedings, they would still be subject to audit by the California State Auditor.

Takeaways

In summary, the Attorney General’s long-awaited opinion states definitively that public integrity laws applicable to other local educational agencies are also applicable to charter schools. While Attorney General opinions are advisory, and not binding, they provide guidance and insight as to how a court could interpret various issues, and therefore are given great deference.

As a result, this opinion will likely prompt stricter adherence by charter schools with laws from which some have argued exempted charter schools. Moving forward, charter schools should independently conform their policies and practices to the Attorney General’s guidance that these laws apply to them. Additionally, an authorizing school district or county board of education should evaluate, and amend if necessary, its policies and procedures to ensure its charter schools’ compliance with these laws as part of the authorizer’s oversight responsibilities.

For additional information regarding the Attorney General’s opinion and its potential impact on charter schools and school districts, 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

Gayle L. Ketchie

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 Laws Impacting Media Literacy, Financial Aid Applications and the “A-G” Course List Will Soon Go into Effect

December 2018
Number 89

Governor Jerry Brown recently signed several bills into law that impact student instruction for public schools. Senate Bill (SB) 830 and Assembly Bills (AB) 2015 and 2239 relate to media literacy, instruction regarding the Free Application for Federal Student Aid (FAFSA) and the California Dream Act Application, and the addition of courses to the “A-G” course list.

SB 830

Recognizing the influence of social media and the proliferation of false news stories, SB 830 intends to increase media literacy skills among young adults. SB 830 requires that, by July 1, 2019, the California Department of Education include on its website a list of resources and instructional materials on media literacy. The new law defines “media literacy” as “the ability to access, analyze, evaluate, and use media and encompasses the foundational skills that lead to digital citizenship.”

AB 2015

AB 2015 concerns the FAFSA and California Dream Act Application. The FAFSA is an application to determine student financial aid eligibility. The California Dream Act Application allows undocumented students, who meet certain requirements, to apply for state student financial aid.

AB 2015 specifies that, starting with the 2020-2021 school year, school districts and charter schools must ensure that each student receives information on how to complete and submit the FAFSA and the California Dream Act Application before the student starts the 12th grade. School districts and charter schools will have discretion in determining the manner in which this information is provided to the students. However, AB 2015 states that the information to be provided in materials must include:

  • The documentation and personal information that student financial aid applications require.
  • Explanations of the definition used for each application (for instance, the definition of “legal guardianship” and “household size”).
  • Eligibility requirements related to student financial aid.
  • The application timelines and deadlines.
  • The importance of the student submitting applications early, in particular when student financial aid is awarded on a first-come basis.

In addition, AB 2015 requires that school districts and charter schools ensure that paper copies of the FAFSA and California Dream Act Application are provided to each student when requested by the student or parent/guardian of the student.

AB 2239

The University of California and California State University have established a uniform set of academic standards for high school classes, which are referred to as the “A-G” subject requirements. To satisfy college admission requirements, high school classes that are used to satisfy the “A-G” subject requirements must be approved by the University of California and included on the “A-G” course list.

AB 2239 applies to schools that offer world language classes (also known as foreign language classes) designed for native speakers which are not already approved “A-G” courses. This bill encourages school districts and charter schools to seek to include these world language classes designed for native speakers on the schools’ “A-G” course list.

Takeaways

SB 830, AB 2015, and AB 2239 all impact various aspects of student instruction. School districts and charter schools should review their policies and practices to ensure compliance with these new bills.

If you have any questions regarding these bills, 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

Aria Link

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 Laws on Enrollment Offer Students More Flexibility and Stability and Require Website Posting by January 1, 2019

December 2018
Number 88

Through Assembly Bills (AB) 2826 and 2949, California lawmakers demonstrated a concerted effort to make the interdistrict transfer process more accessible to families, as well as provide additional protections to students of military families, who are often subject to frequent school changes.

Assembly Bill 2826 – Pupil Enrollment: Interdistrict Attendance:

AB 2826 strives to make the interdistrict transfer process more transparent and timely for families. Under the new law, which amends Education Code sections 46600 et seq., school districts have the following obligations starting on January 1, 2019:

  • Post the district’s interdistrict transfer procedures on the district’s website, including:
    • A link to the district’s policies on interdistrict transfers;
    • The date when the district will accept and process requests for the subsequent school year;
    • The reasons for approval or denial of a request;
    • Any information or documents that must be submitted as supporting evidence in a request;
    • If applicable, the process and timelines by which a denial may be appealed within the school district;
    • Notice that failure to adhere to timelines will be deemed an abandonment of the request;
    • The conditions for when an existing permit may be revoked or rescinded; and
    • Applicable timelines for processing a request, including those set out below.
  • Process Interdistrict Transfer Requests as follows:
    • Notify the parent submitting a current year request of its final decision within 30 calendar days of receipt;
    • Notify the parent submitting a future year request of its decision as soon as possible, but no later than 14 days after the start of the instruction in the school year for which the transfer is sought;
    • Provide written notice of the parents’ right to appeal to the county board of education within 30 calendar days from the final date of a denial;
    • Provisionally admit students to a requested district, based on their evidence that a final decision is pending with a district of residence, proposed district, or county board of education.

Assembly Bill 2949 – Pupil Residency: Pupils of Military Families:

Existing law provides an exception to the residency requirements for a student whose parent is transferred to or is pending transfer to a military installation within the state while on active military duty pursuant to an official military order. AB 2949 adds section 48204.6 to the Education Code to require a local educational agency to permit a student who meets certain criteria to continue attending the student’s “school of origin” during that school year, regardless of any change of residence of the military family. If the student’s status changes due to end of military service, then the student is allowed to stay in the school of origin for the remainder of the academic year if he or she is between grades 1-8, or through graduation if the student is enrolled in high school. The new law effectively mirrors the laws related to protecting foster youth and homeless children, who are also susceptible to frequent school changes.

Takeaways

By January 1, 2019, school districts must post the required interdistrict transfer policies and information on their website. School districts must also ensure compliance with the new response timelines and notice of parent’s right to appeal a transfer denial.

Local educational agencies must permit students of military families to continue to attend their schools of origin, despite changes in residence and changes in military status. Local educational agencies may seek appropriate reimbursement to comply with these provisions, consistent with the state’s rules of reimbursement for mandated costs.

If you have any questions about AB 2826 or 2949 or about laws applicable to local educational agencies 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:

Ruth E. Mendyk

Partner

Nicholas G. Felahi

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 Law Limits School District Collection of Debts from Students and Penalties for Debts

December 2018
Number 85

The California Legislature recently passed Assembly Bill (AB) 1974, which places new prohibitions and restrictions on the collection of debt owed by parents to public schools, including state special schools and charter schools, and school districts, including county offices of education (all referred to herein as school districts). The new law prohibits the practice of punishing students for the failure of their parents to pay debt owed to the school district, adds additional requirements for the collection of student debt, prohibits the sale of such debt, and allows school districts to offer alternative, nonmonetary forms of payment to settle the debt. Importantly, the new law will not impact existing law regarding the imposition of charges for willfully damaged school property or failing to return loaned school property, or the consequences of not paying those charges.

Background

Parents are responsible for the fees and debts incurred by their minor child. School districts can no longer take negative actions against students for their parents’ failure to pay debt. While parents may still be held accountable for the failure to pay permissible student fees (such as fees for transportation to and from school), the student cannot. Schools districts are now barred from imposing the following consequences as a result of the unpaid debt:

  • Denying full credit for any assignments for a class;
  • Denying full and equal participation in classroom activity;
  • Denying access to on-campus educational facilities, including, but not limited to, the library;
  • Denying or withholding grades, transcripts, or a diploma;
  • Limiting/barring participation in an extracurricular activity, club, or sport; and
  • Limiting or excluding from participation in an educational activity, field trip, or school ceremony.

Significantly, the new restrictions do not apply to “debt owed as a result of vandalism or to cover the replacement cost of public school or school district books, supplies, or property loaned to a pupil that the pupil fails to return or that are willfully cut, defaced, or otherwise injured.” This exception relates directly to Education Code section 48904, which permits the imposition of charges under such circumstances, and so long as adequate due process is provided to the student, authorizes the withholding of grades, diploma, and transcripts of a student where the charge has not been paid. The above exception does not apply to a student who is a current or former homeless youth, or current or former foster youth. As such, school districts must ensure against imposition of consequences against these categories of students, even where the debt is imposed for school property which is not returned or willfully damaged.

AB 1974 imposes the following requirements when collecting the debt from parents owed to the school district:

  • Provide an itemized invoice for any amount owed by the parent or guardian before pursuing payment of the debt;
  • Provide a receipt to the parent or guardian or former student for each payment made to the school or district for any amount owed by the parent or guardian on behalf of the student or former student; and
  • The invoice must include references to school policies relating to debt collection and the rights established under Education Code sections 49014 and 49557.5.

In addition, the school district may offer the student or former student, with the permission of the parent or guardian, alternative, nonmonetary forms of compensation to settle the debt. This alternative must be voluntary and conform to all Labor Code provisions. Further, a school district is prohibited from selling the debt owed by a parent or guardian. Finally, the school district may still contract with a debt collection agency to collect the debt, but the debt collection agency cannot report the debt to a credit agency.

Takeaways

When AB 1974 goes into effect on January 1, 2019, public schools, including state special schools and charter schools, school districts, and county offices of education, will not be able to take negative actions against a student, or former student, for debts owed by the student’s parent or guardian-with the exception of debt imposed as a result of vandalism or for failure to return school property, which is itself limited relative to current or former homeless youth, or current or former foster youth. As school districts and county offices of education look forward to 2019, a review of existing debt-collection practices is recommended, which may lead to the need to modify, establish or eliminate existing policies
and practices to ensure compliance with this new law.

For more information about AB 1974 or about school fees 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.

New Bills Remove Obstacles to Graduation for Migrant and Immigrant Students

December 2018
Number 83

Assembly Bills (AB) 2121 and 2735 will make it easier for migrant students and English learners to access courses in core curriculum subjects and obtain course credit necessary for graduation. Both bills were signed by Governor Jerry Brown in September 2018. AB 2121 will become effective on January 1, 2019, while AB 2735 will take effect at the beginning of the 2019-2020 school year.

AB 2735

Existing law requires schools to ensure that students with limited English proficiency, or English learners (ELs), participate in the standard instructional program of a school. Schools may do this by either providing ELs with access to the standard instructional program along with English language support, or by placing ELs in separate educational programs intended to allow ELs to develop proficiency in English before being transferred to the standard instructional program. However, as cited by the author of AB 2735, several studies have found that many ELs who have been placed in separate programs become, in essence, trapped in the programs, unable to access courses in math, science, and English language arts,
despite their proficiency in English, until they are reclassified as non-ELs.

AB 2735 was enacted to solve this problem by prohibiting local education agencies, including county offices of education, public school districts, and charter schools, from denying ELs enrollment in core curriculum courses and courses required for high school graduation. This bill applies to ELs in middle and high school. The new law does not apply to students enrolled in “newcomer programs” designed to meet the academic and transitional needs of newly arrived immigrant pupils. AB 2735 creates new California Education Code section 60811.8.

AB 2121

Minimum course requirements for high school graduation are specified by state law and supplemented at the local level. However, Education Code sections 51225.1 and 51225.2 have historically provided a number of exemptions to local graduation requirements, including requiring the acceptance of partial credit, for certain students who move frequently, including foster youth, homeless children or youth, former juvenile court school students, and certain children of military families.

AB 2121 extends these exemptions to “migrant children,” defined to include children who have recently moved from one school district to another in order for the child or the child’s family to secure temporary or seasonal employment in an agricultural or fishing activity. AB 2121 will also extend benefits to children who are participants in a newcomer program.

Charter schools must comply with this statutory scheme, as well.

Takeaways

Both AB 2735 and AB 2121 were enacted to address the disparate rate of high school graduation and academic performance of English learner and immigrant populations, as compared to all other students in California. These new laws will allow these students to more easily access core curriculum course credits, while exempting them from certain local graduation requirements.

School Districts, charter schools, and county offices of education should review their courses, programs, and services offered to English learners to ensure that they do not prohibit English learners from accessing core curriculum subjects in violation of new Education Code section 60811.8. Likewise, public school districts and charter schools should be prepared to provide migrant students and students enrolled in newcomer programs with all of the necessary notifications and information regarding exemptions from local graduation requirements.

For more information on how school districts can prepare for the effects of these new laws, 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/a>

Partner

©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.

Legislature Expands Sexual Health Education Resources

November 2018
Number 79

In September 2018, Governor Jerry Brown approved a series of bills that expand on the instruction of comprehensive sexual health education for California public school students.

The California Healthy Youth Act requires that school districts ensure that pupils in grades 7 through 12 receive comprehensive sexual health education, including human immunodeficiency virus (HIV) prevention education, and information on sexual harassment, sexual assault, sexual abuse, and human trafficking. Commencing with the 2019-2020 school year, charter schools will be included in these requirements. (See 2018 CNB No. 57.)

Assembly Bill (AB) 1861 adds the requirement that school districts and charter schools provide pupils in grades 7 through 12 information on how social media and mobile device applications are being used for human trafficking.

AB 1868 authorizes school districts and charter schools to provide optional instruction on the potential risks and consequences of creating and sharing sexually suggestive or sexually explicit materials through cellular telephones, social networking Internet sites, computer networks, or other digital media.

Lastly, Senate Bill (SB) 1104 requires school districts and charter schools to identify the most appropriate methods of informing parents and guardians of pupils in grades 6 through 12 of human trafficking prevention resources and implement the identified methods by January 1, 2020.

The California Department of Education provides information on its website regarding comprehensive sexual health and HIV/AIDS instruction, and is in the process of revising the Health Education Curriculum Framework to be adopted in the spring of 2019.

If you have any questions about these new laws or about sexual education laws 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:

Roberta L. Rowe

Partner

Jayme A. Duque

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 Laws will Require Charter Schools to Provide Meals, Sexual Health Education

October 2018
Number 57

The Legislature has expanded requirements for charter schools in 2019. Assembly Bill (AB) 1871 will require charter schools to provide meals to needy students, while AB 2601 will require charters to provide sexual health education to students in grades 7-12.

Assembly Bill 1871

Starting on July 1, 2019, AB 1871 will require California charter schools to provide needy students with one nutritionally adequate free or reduced price meal each day. Charter schools were previously exempt from this state mandate. This change will be reflected by adding Education Code section 47613.5. Non-classroom based charter schools will be required to provide free and reduced price meals to eligible students on days when the students are scheduled for two or more hours of educational activities at a charter school facility.

For charter schools that become operational July 1, 2019, implementation of this requirement must occur no later than July 1 of the following school year.

Assembly Bill 2601

Starting on July 1, 2019, charter schools will be required to provide sexual health education and human immunodeficiency virus (HIV) prevention education to students in grades 7-12. Current law mandates that this sexual health education and HIV prevention education be provided to students in grades 7-12 in traditional schools. Charter schools, however, were exempt from this curriculum requirement. Again, the Legislature has now decided that providing sexual health and HIV prevention education to students in California schools outweighs the objective to provide freedom and flexibility to charter schools in developing their curriculums. This change will be reflected in Education Code section 51931.

Takeaways

Charter authorizers may want to explore the planned strategies of the charter schools they oversee to implement these two new mandates.

If you have any questions about AB 1871 or AB 2601 or about laws applicable to 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.

California Bans For-Profit Charter Schools

September 2018
Number 52

Governor Jerry Brown has signed new legislation banning for-profit corporations, for-profit educational management organizations, and for-profit charter management organizations from operating charter schools in California. Assembly Bill (AB) 406 takes effect July 1, 2019.

Background

Amidst a growing nationwide movement to privatize public schools, for-profit corporations known as educational management organizations (EMOs) and charter management organizations (CMOs) are on the rise. These organizations make public education their business, establishing charter schools that are required to contract with the for-profit corporations for all or a majority of services, and taking a percentage of the taxpayer dollars that fund these schools as profit.

Until now, California law has expressly allowed public charter schools to be operated by non-profit corporations, but has stood silent on whether a charter school may be operated by a for-profit corporation. Absent any clear prohibition, according to the California Senate Education Committee, for-profit corporations now operate as many as 34 charter schools statewide, delivering public education to over 25,000 students.

AB 406, signed into law on September 7, amends the Education Code to provide a definitive prohibition where current law is silent. Under AB 406, a public charter school may not be operated as, or by, a for-profit corporation, including an EMO or CMO. For the purposes of AB 406, the Legislature assigned a broad definition to the term “operate,” and a for-profit corporation may not do any of the following in relation to a charter school:

  • Nominate, appoint, or remove charter school board members or officers;
  • Employ, supervise, or dismiss charter school employees;
  • Manage a charter school’s day-to-day operations as its administrative manager;
  • Independently approve, deny, or manage the budget or expenditures of a charter school; or
  • Provide services to a charter school before the school’s governing body has properly approved a contract for such services.

Takeaways

After the law goes into effect, petitioners submitting new or renewal charter petitions may not propose to be operated by a for-profit corporation. A charter school also may not enter into a subcontract to avoid the requirements of AB 406. In enacting this law, the Legislature is attempting to ensure public schools do not use taxpayer dollars to generate profits for corporations. It is not yet clear whether AB 406 will effectively encompass all possible organizational structures a for-profit corporation could adopt, and whether this bill will have its intended effect of eliminating for-profit corporate management of the day-to-day operations of California charter schools.

Charter school operators and authorizers should examine the organizational structure of charter schools within their purview to determine if current operations might be impacted upon renewal by AB 406. Although AB 406 is not immediately effective, local educational agencies reviewing either new or renewal charter petitions on or after July 1, 2019 should carefully review all elements of a petition, including those related to governance structure, operations, and board bylaws, to ensure the proposed new or renewal charter school meets all requirements under the law, and does not impermissibly assign operational oversight to a for-profit corporation. Charter authorizers may also need to consider the impacts of significant changes to the governance structure of a charter school’s operation, and may wish to consult with their legal counsel.

For more information about AB 406 or about the Charter Schools Act 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:

Manuel F. Martinez

Partner

Erin M. 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.

Charter Schools Must Obtain Separate Approvals for New Schools, Renewals, and Revisions, Court Rules

March 2018
Number 10

A California appellate court has published a decision affirming that charter schools must obtain separate approvals for new initial petitions, charter renewals, and material revisions to charter school petitions. InToday’s Fresh Start Charter School v. Inglewood Unified School District, et al. (Feb. 7, 2018, Case No. B280986) ___ Cal.App.5th ___, the Second District Court of Appeal issued a published decision, concluding that:

(1) Charter schools may not use a renewal petition to add a charter school location not previously authorized by its initial petition; and

(2) A material revision to a charter school’s initial petition is not deemed approved by combining with a renewal petition that became authorized by the chartering authority’s failure to act on the renewal petition within the statutory 60-day limit.

Lozano Smith’s litigation team of Erin M. Hamor, Megan Macy, and Sloan R. Simmons supported the California School Boards Association’s Education Legal Alliance by filing an amicus curiae brief in support of the Inglewood Unified School District.

Background

Today’s Fresh Start Charter School submitted a renewal petition to its authorizer, the Inglewood Unified School District-entitled “Renewal Petition and Material Revision”-seeking renewal of its existing charter and proposing to add a new charter school facility outside the boundaries of the district. When the district failed to act on the renewal petition within the statutory 60-day limit, the charter school argued that both the renewal petition and the material revision to approve the new location had been approved by operation of law. The Court of Appeal rejected the charter school’s argument and fully affirmed the judgment of the trial court.

Throughout the opinion, the court highlighted the three distinct categories where a charter school must seek approval of its chartering school district: (1) initial petitions for establishment of a charter school; (2) petitions to renew an existing charter; and (3) petitions for approval of a material revision to an existing charter. The court emphasized that each type of petition is governed by a separate set of requirements and timelines. As a result, when a charter school location has not previously been approved under an initial petition, the material revision process is the appropriate mechanism to add the new location.

Takeaways

This case is important for charter school authorizers because it re-emphasizes that the three separate categories of charter school petitions-initial approval, renewal, and approval of a material revision-should be treated separately according to their distinct processes, even if presented in a combined petition.

This decision also makes clear that charter schools may not use renewal petitions to circumvent geographic location requirements of the Charter Schools Act-a practice some charter authorizers report has been on therise.

For more information about this case or about 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 ourwebsite, follow us onFacebook orTwitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Ryan. P Tung

Associate

Alyse Pacheco

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.

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.

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.

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.

State Monitoring of Title IX Compliance is Beginning

December 2015
Number 76

The California Department of Education recently issued the 2015-2016 Education Equity program instrument (Guidance), which is used to monitor a local educational agency’s (LEA) compliance with laws on equity in the treatment of students. Of particular note, the Guidance identifies a new Title IX reporting requirement that was enacted by Senate Bill (SB) 1349 in 2014.

SB 1349 added section 221.9 to the Education Code, which requires that beginning with the 2015-2016 school year school sites, including charter schools, to publish: (1) total school enrollment, classified by gender; (2) total number of students who participate in athletics, classified by gender; and (3) total number of school athletic teams, classified by gender, sport, and competition level. This information must be posted to the school’s website. If the school does not have a website, the information must be listed on the District’s website separately for each individual school.

Although the first posting is not required until the end of the year on June 30, 2016, the law goes into effect in the current school year. Thus, since the law requires the posting to reflect the total number of players on a team roster “on the official first day of competition,” and that first day of competition would have been during the 2015-16 school year, each school site should begin compiling this information now. Posting should then occur by June 30, 2016, reflecting the current school year numbers. In addition to collecting the requisite information and preparing to post at the end of the school year, LEA’s should also consider updating their board policies on athletic competition to reflect that this information will be compiled and made publicly available.

The legislative history of SB 1349 indicates that a major purpose behind the bill was to make it easier to monitor and enforce Title IX and state requirements for gender equity in public school athletics. These requirements were recently reinforced by the federal Ninth Circuit Court of Appeal in Ollier v. Sweetwater Union High School District (9th Cir. 2014) 768 F.3d 843, a case in which the court found the District liable for failing to provide substantially equal opportunities for female athletes. For more information on the Ollier case, please see Lozano Smith’s Client News Brief No. 74 (October 2014).

The inclusion of this new reporting requirement in the Guidance indicates the CDE is already gearing up to monitor/review this educational equity issue. The full text of the Guidance can be read here. The recent Ollier case, SB 1349, and the Guidance demonstrate an increasing focus on Title IX monitoring. Now, more than ever, LEA’s must ensure compliance with Title IX’s numerous requirements.

Given the significance of Title IX requirements and the ability for attorney’s fees to be collected if enforcement actions are successful, Lozano Smith has formed a Title IX Impact Team, spearheaded by partner Michael Smith and Senior Counsel Michelle Cannon. This Impact Team, made up of attorneys across multiple practice areas, is leading the firm’s efforts to provide comprehensive trainings and advice addressing legal needs related to Title IX.

In addition to athletics, the Title IX Impact Team will focus on how Title IX applies to all aspects of gender discrimination in education, including sexual harassment, pregnancy discrimination, and harassment or bullying based on sexual orientation.

If you have questions about Title IX or desire a Title IX training, 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

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Michelle L. Cannon
Senior Counsel
Sacramento Office
mcannon@lozanosmith.com

Maryn Oyoung
Associate
Walnut Creek Office
moyoung@lozanosmith.com

©2015 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.

Charter School Prop. 39 Facilities Requests are Due November 1

October 2015
Number 60

Commonly referred to as “Prop. 39”, Education Code section 47614 requires that school districts provide facilities to charter schools. Charter schools must request facilities for the 2016-2017 school year, in writing, by November 1, 2015. Because Prop 39 triggers certain obligations for a school district, it is best to be prepared for the upcoming facilities request season.

Once a school district receives a facilities request from a charter school, the following deadlines are triggered:
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 a final offer of facilities by the school district.

May 1 – Deadline for acceptance of offer of facilities by charter school.

Given these tight timelines, it is critical that a facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections and to contemplate the facilities to be offered. Also keep in mind that in certain circumstances, even proposed charter schools may request facilities, so a request from a school that has not yet been approved is a possibility.

For assistance with processing Prop. 39 facilities requests or with any charter school matter, 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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Carrie M. Rasmussen
Associate
Sacramento Office
crasmussen@lozanosmith.com

©2015 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.

Court Upholds School District Decision Where to Locate Charter School

September 2015
Number 50

In Westchester Secondary Charter School v. Los Angeles Unified School District et al., (2015) 237 Cal.App.4th 1226 (Westchester), the court of appeal affirmed that when a charter school makes a facilities request under Proposition 39, the charter school is not entitled to a specific location of its choosing. Instead, a school district need only make reasonable efforts to place a charter school near the charter school’s desired location. This was a closely watched case as the California Charter Schools Association filed an amicus brief in support of the charter school.

Under the Education Code, a charter school may request facilities from the school district in which it operates and the district is obligated to “make reasonable efforts to provide the charter school with facilities near to where the charter school wishes to locate.” (Ed. Code § 47614(b).) The facilities request process occurs over several months and involves various steps, including a charter school’s initial written request, a school district’s preliminary proposal, a charter’s response to the proposal, and a school district’s final notification of the space offered. (Cal. Code. Regs., tit. 5, § 11969.9(g)-(h).)

In November 2013, Westchester Secondary Charter School (WSCS) submitted a facilities request to the Los Angeles Unified School District (LAUSD) for the 2014-2015 school year. The request noted that the charter school preferred a site located in Westchester, and listed nine school sites in order of preference. However, the site that the district offered to WSCS was not one of the nine sites listed in the charter school’s facilities request. Instead, LAUSD offered the charter school facilities at a site located in Crenshaw-6.4 miles from the charter school’s first desired school site and 7.4 miles from its second desired school site.

At trial, the charter school alleged that LAUSD had failed to make reasonable efforts to place the school near its desired location. The trial court disagreed and the court of appeal affirmed, concluding that the charter school’s facilities request stated that the school would consider facilities “reasonably close” to Westchester, the school’s desired neighborhood, and that the district had timely offered WSCS a school site only 2.53 miles from the boundary of the Westchester neighborhood. The court of appeal further noted that previous cases had determined that greater distances were “near” a desired location. The court of appeal held that the relevant consideration was the distance from the offered facilities to the requested geographic area (e.g. the Westchester neighborhood), not the distance to the requested school site.

Westchester indicates that a school district is still given discretion over the assignment of its facilities. The court of appeal ruled that LAUSD had not abused its discretion in making its offer to WSCS because the school district had a reasonable basis for its decision. LAUSD conducted a “comprehensive capacity assessment of each school” to determine space availability. Additionally, LAUSD demonstrated that placing the charter school at the charter’s first-choice site would cause safety, educational, scheduling and operational challenges among the eight existing programs at that site. Moreover, an alternate site WSCS had requested was not “reasonably equivalent” as that site did not serve the same grade levels as WSCS. (Ed. Code § 47614(b); Cal. Code Regs., tit. 5, § 11969.1(b).)

As Westchester demonstrates, a school district that offers facilities to a charter school must make reasonable efforts to locate the charter school near its desired location. However, “desired location” does not mean “exact location.” When making facilities offers, a school district should consider the “reasonable efforts” it can make in light of Westchester including: timely responding to a charter school, assessing space availability, explaining why a charter school was placed at one site over another, attempting to minimize the distance between the site(s) offered to the extent reasonable, the geographic area stated in the facilities request, and determining how your school district’s policies may impact facilities request offers.

If you have any questions regarding the Westchester decision or about charter school issues in general, 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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Elí S. Contreras
Associate
Monterey Office
econtreras@lozanosmith.com

©2015 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.

The California Supreme Court Provides School Districts Guidance in Determining the Number of Classrooms to Provide Charter Schools Under Prop. 39

April 2015
Number 20

The California Supreme Court has weighed in on Proposition 39, the law that requires school districts to provide facilities to charter schools.

In California Charter Schools Association v. Los Angeles Unified School District (April 9, 2015) S208611, the California Charter School’s Association (CCSA) filed suit against the Los Angeles Unified School District (LAUSD), alleging that the use of “norming ratios” to calculate classroom allocations to charter schools in response to a Prop. 39 facilities request was illegal under California law. LAUSD used what it called “norming ratios” when apportioning facilities to charter schools, which purported to establish a uniform student/teacher ratio for each grade level throughout the district. LAUSD argued that the use of these district-wide ratios was both legal and appropriate.

CCSA, on the other hand, argued that norming ratios improperly reduced the number of classrooms provided to charter schools. CCSA contended that school districts should, instead, look to their gross inventory of classrooms at comparable schools when determining allocation of classrooms.

In a unanimous decision, the California Supreme Court announced something of a compromise between the two perspectives. The Court opted to require school districts to count the number of classrooms, but the classrooms owed to the charter school would not be a full inventory, as requested by CCSA. Rather, only classrooms “provided to” K-12 students at the comparison schools would be included in the calculations. The Court adopted a three-pronged approach to calculating the number of classrooms to provide a charter school and specified that, when a district receives a request for facilities, it must:

  1. Identify comparison group schools pursuant to State Board of Education regulations.
  2. Count the number of classrooms in the comparison group schools, and adjust the number to reflect those classrooms “provided to” K-12 students in the comparison group schools. The term “provided to” requires a site-specific, case-by-case analysis. While it does not require a school district to count all rooms in the comparison group schools, it also does not allow the school district to count only those rooms the schools elect to staff with a teacher.
  3. Use the resulting number as the denominator in the ADA-classroom ratio at the comparison schools. This is the ADA-classroom ratio to be allocated to the charter school.

Will this decision impact current Prop. 39 offers already presented to charter schools?
In rendering this decision, the Court contemplated a prospective application of this new approach to allocating facilities. Therefore, it is likely that this decision will not impact facilities offers that have already been presented to charter schools for 2015-2016.

Our attorneys have substantial experience handling all aspects of charter school issues. For assistance with processing Prop. 39 facilities requests or with any charter school matter, 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

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Ryan P. Tung
Associate
Walnut Creek Office
rtung@lozanosmith.com

©2015 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.

Charter School Prop. 39 Facilities Requests are Due November 1

October 2014
Number 83

Commonly referred to as “Prop. 39”, Education Code section 47614 requires that school districts provide facilities to charter schools. Charter schools must request facilities for the 2015-2016 school year, in writing, by November 1, 2014. In certain circumstances, even proposed charter schools may request facilities.

Once a school district receives a facilities request from a charter school, the following deadlines are triggered:

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 a final offer of facilities by the school district.

May 1 – Deadline for acceptance of offer of facilities by charter school.

Given these tight timelines, it is critical that a facilities request be reviewed shortly after receipt to determine the reasonableness of the charter school’s ADA projections and to contemplate the facilities to be offered.

For assistance with processing Prop. 39 facilities requests or with any charter school matter, please contact 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 Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

©2014 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.

Courts Intervene to Keep Charter Schools Operating Pending Appeals of Revocation Cases

August 2014
Number 53

Several charter schools have recently succeeded in convincing courts to intervene in the charter renewal and revocation process despite the fact that these charter schools have not exhausted their administrative appeals through county boards of education and the State Board of Education before seeking such court action. This trend could severely hamper a school district’s ability to oversee and revoke charter petitions when necessary.

For example, as reported in CNB No. 34, during the 2013-2014 school year three charter schools operating under the American Indian Model Schools (AIMS) charter organization had their charters revoked by the Oakland Unified School District for the alleged fiscal mismanagement of millions of dollars. While the district’s decision to revoke the charters was pending in the administrative appeals process, AIMS went to court and obtained a restraining order prohibiting the closure of the schools. AIMS ultimately convinced the court to overturn the district’s decision to revoke the charters because the district did not make the required findings of fact regarding academic achievement. All three AIMS schools currently remain open.

Similarly, the Los Angeles Unified School District decided not to renew the charters of two schools operated under the Magnolia Educational and Research Foundation (Magnolia) because Magnolia was alleged to be in financial dire straits. Magnolia sought, and obtained, a court’s temporary restraining order that has kept these schools open because the district’s decision not to renew was allegedly made improperly. This matter is still pending before the court. Like the situation with AIMS, the court inserted itself into the administrative appeals process before that process could run its course.

Lozano Smith is monitoring this trend and will continue to provide updates on the status of the law on charter petition revocation and renewal.

If you have any questions regarding this issue, please contact 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.

Other 2014 Back to School Client News Briefs

Reminder: The “Personal Belief” Exemption from Immunization Now Has New Requirements

Changes to the Laws Regarding Independent Study Go Into Effect Immediately

Annual Notice Requirements Modified for 2014-2015

Reminder: Minimum Wage in California Increased in 2014

State Board of Education Amends Special Education Regulations Effective July 1, 2014

Written By

Edward Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Manuel F. Martinez
Associate
Walnut Creek Office
mmartinez@lozanosmith.com

©2014 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 of Appeal Upholds Injunctive Relief to Keep Charter School Open and Funded During Revocation Appeal Process

July 2014
Number 34

In a decision favorable to charter school proponents, a California court of appeal has upheld a preliminary injunction that kept three charter schools open and funded during the appeal of the revocation of their charter petitions. In a high profile dispute, Oakland Unified School District revoked the charters of American Indian Model Schools’ (AIMS) three charter schools for fiscal mismanagement, improper use of public funds, and conflict of interest violations. Leading up to the revocations, AIMS had garnered significant media attention as a success story due to the high test scores of students whose neighborhood schools have traditionally underperformed. In American Indian Model Schools v. Oakland Unified School District (June 23, 2014) ___Cal.App.4th ___ 2014 WL 2811562, AIMS appealed the revocation decision to the County Board of Education and, subsequently, to the State Board of Education. AIMS also sought a preliminary injunction to stop the revocation of its charters from being implemented during the appeal process. In its decision upholding the trial court’s issuance of a preliminary injunction, the court of appeal interpreted several aspects of Education Code section 47607 involving the charter revocation process.

Under Education Code section 47607, the chartering authority must consider, as the most important factor in determining whether to revoke a charter, increases in pupil academic achievement for all groups of pupils served by the charter school. The court of appeal determined that this consideration must be supported by substantial evidence. The relevant statutory language regarding pupil academic achievement went into effect on January 1, 2013, only a few months before the AIMS charters were revoked in March 2013. Both the trial court and court of appeal found the record devoid of substantial evidence showing that the District considered pupil achievement. The court of appeal noted that “[t]he District must give extra weight and consideration to high test scores, but high test scores would not prevent revocation of a charter.”

Unfortunately, the court stopped short of offering guidance as to what constitutes substantial evidence of a district’s consideration of a charter school’s academic achievement. Nonetheless, the clear import of this holding is that a chartering authority must clearly document its consideration of the academic achievement of all pupil groups as the most important factor in its charter revocation decision. It is also important to note that this holding may reach beyond the revocation of a charter. The pupil academic achievement for all groups of pupils served by the charter school also must be considered as the most important factor in determining whether to grant a charter renewal.

The court further found that section 47607 does not prohibit a trial court from granting an injunction that continues funding to a charter school during the appeal of a revocation. Section 47607 explicitly provides that for revocations based on certain criteria, the charter school must continue to qualify as a charter school for funding purposes and may otherwise continue to operate. The statute, however, does not have a similar provision for revocations based on a failure to meet generally accepted accounting principles, fiscal mismanagement, or a violation of any provision of law. Nonetheless, the court found that the absence of such language did not mean that funding can never be continued by a court order. The court believed that public policy favored this interpretation.

Lastly, the court held that a trial court could grant a preliminary injunction staying a charter revocation, even where the charter school is still appealing the revocation decision, if the charter school can show that it will be irreparably harmed if a preliminary injunction maintaining the status quo is not granted. In this case, the court found that AIMS met this exception by showing that, in the absence of an injunction, it would lose its funding, faculty, and student body and that the students “would be deprived of the opportunity to obtain an education at schools that have enabled them to obtain high API and SAT test scores.”

As a result of this decision, charter schools that face revocation (or possibly nonrenewal of their charter) may increasingly turn to the courts for injunctive relief. Further, school districts and county boards of education that are chartering authorities should document their analysis of the academic achievement of all pupil groups as the most important factor in their consideration of whether to revoke a charter.

If you have questions regarding charter schools, please contact 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 Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

Mark P. Bookholder
Associate
Monterey Office
mbookholder@lozanosmith.com

©2014 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.