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CHARTER SCHOOL APPEAL COMMISSION

CHARTER SCHOOL APPEAL COMMISSION . OVERVIEW OF THE APPEAL PROCESS AND THE ROLE OF THE CHARTER SCHOOL APPEAL COMMISSION Richard E. Shine 850 245-9430. TOPICS. Charter School Appeals Process Due Process before the School District Role of the Charter School Appeal Commission

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CHARTER SCHOOL APPEAL COMMISSION

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  1. CHARTER SCHOOL APPEAL COMMISSION OVERVIEW OF THE APPEAL PROCESS AND THE ROLE OF THE CHARTER SCHOOL APPEAL COMMISSION Richard E. Shine 850 245-9430

  2. TOPICS • Charter School Appeals Process • Due Process before the School District • Role of the Charter School Appeal Commission • Comparison of Traditional v. High Performing • Cases on Appeal • Recent Legislative Changes

  3. Charter School Appeals Process • Charter School submits application on or before August 1 • Sponsor has 60 days to review • Can agree with applicant to temporarily postpone to later specific date • Evaluate Application – hold public hearing and vote by September 29 • Issue Written Decision to approve or deny with specific reasons for denials • If denied, charter school has 30 days to appeal denial to SBE (October 29) • Time starts when charter school receives the denial • Time limit is strictly enforced • 7 day cure period for technical or nonsubstantive corrections • Sponsor must submit response to appeal within 30 days of notification of the appeal • Send certified mail, email return receipt requested to move process along

  4. Charter School Appeals Process(Continued) • Charter School Appeal Commission reviews the record and is directed by statute to: • Have a meeting • Study the issues • Make written recommendations to the State Board • In reaching its recommendations, the Appeal Commission may: • Review the appeals documents submitted by the parties • Gather other applicable information (usually done in an informal hearing) • Recommendations must be in writing and must include the reasons for the recommendation being offered • Should identify a factual basis for the recommendation • Must be filed with the SBE at least 7 days prior to date appeal is heard by the SBE • By statute, SBE must decide the appeal within 90 days after an appeal is filed (should be heard by approximately January 27)

  5. School District DecisionDue Process is flexible and calls for such procedural protections as the situation demands • Adequate notice to Applicant • Opportunity to hear evidence for denial • Applicant has opportunity to present evidence • Opportunity to make arguments to decision maker • Decision based on information in record School Board of Palm Beach County v. Survivors Charter School, 3 So.3d 1220, FN14, (Fla. 2009)

  6. Legal Standard of Review • Competent Substantial Evidence • Evidence that is sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion. DeGroot v. Sheffield, 95 So. 2d 912 (Fla. 1957) • Standard is used to determine whether the record on appeal supports the facts identified by the sponsor • De Novo • The Charter School Appeal Commission and SBE are not required to give the district school board’s decision any deference • Standard is used to determine decisions of law, interpretation of contracts and determining good cause • Abuse of Discretion • Disagreement with reasoning/opinion is not enough to reverse • Standard is used for mixed questions of fact and law

  7. Record Evidence • What is record evidence? • All evidence in the record that is timely submitted • Application and attachments • Application Evaluation Instrument completed by Sponsor • Sponsor’s Denial Letter • Testimony before the District School Board • Transcripts of proceedings before District School Board • Argument of counsel is not evidence if it: • References non-record documents • Introduces new documents or other evidence • References an existing non-applicant charter school

  8. Members of the Charter School Appeal Commission • Kim McDougal is the Commissioner’s designee as the Chair • 8 Appeal Commission members: • 4 charter school representatives • 4 school district representatives

  9. Role of the Charter School Appeal Commission • Charged by statute to provide a fair and impartial review of charter school appeals • Charged with carefully reviewing materials submitted by both sides and providing a recommendation to the SBE • May facilitate postponement of hearing where parties may settle with additional time/discussion • Must have a new date certain for hearing • Must provide a written fact based recommendation on whether appeal should be upheld or denied • Must identify the facts found by the CSAC in reaching its recommendation • In the event the CSAC cannot reach a decision the Chair decides • Only time the Chair votes • Still must provide facts supporting the recommendation • The CSAC’s role is similar to that of an Administrative Law Judge

  10. Burden of Proof • A Party’s duty to prove a disputed assertion or charge includes both: • Burden of Persuasion – duty to convince the Board to consider facts as sufficient to support approval • Burden of Production – duty to introduce sufficient evidence to document compliance with Charter School Requirements

  11. Comparison of the Burden of Proof and Compliance Standards • Charter School Application • Applicant has the Burden of Production and Persuasion (Preponderance of Evidence) • School Board’s good cause decision is presumed to be correct • Applicant has burden to overcome presumption by demonstrating that the School Board committed reversible error • Evidence must be specific and relevant to the reason for denial • Evidence must be part of the record on appeal, available to decision maker • High Performing Charter School Application • Substantially replicate its educational program – at least two school grades of “A” and no grade below a “B” over previous three years • School Board has Burden of Production and Persuasion (Clear and Convincing Evidence) • School Board’s denial must be supported by record evidence and satisfy the “Material Noncompliance” standard

  12. School Board Denial of High Performing Charter School by Clear and Convincing Evidence • Clear and Convincing School Board has the burden to prove denial with evidentiary facts showing that it is highly probable or reasonably certain that the Application for replication of a Charter School is not in material noncompliance with the Statutory requirements. • High Performing Charter School • School Board’s burden falls in between: Beyond a Reasonable Doubt High Standard - Virtual certainty of fault identified through material evidence, such as motive, forensic evidence, or video – eye witness evidence - Criminal Case; and • Preponderance of Evidence 51% or more of the relevant and material evidence establishes or disproves a fact – Civil Case • Traditional Charter School Applications

  13. Material Noncompliance – High Performing Charter School • Material noncompliance defined: • A failure to follow requirements or a violation of prohibitions applicable to Charter School applications • Statute or • Rule • Failure must be quantitatively or qualitatively significant either individually or when aggregated with other noncompliance • Does the High Performing Carter School’s educational program substantially replicate applicant’s high performing charter school • Did the applicant make a material misrepresentation, false statement or conceal an essential material fact

  14. State Board of Education Action • Thoroughly review the materials presented by the charter school and the school district • Considers the fact based recommendation of the Charter School Appeal Commission • Allows Parties to present fact based argument in support of their position • Make a decision to grant or deny the appeal and issue a Final Order

  15. Appeals of SBE Orders to the District Court • An appeal of a SBE final order approving or denying a charter school may be reviewed by the District Court of Appeal to determine if the SBE’s factual findings are: • Supported by competent substantial evidence in the record • The SBE correctly applied the law

  16. Cases on Appeal • School Board of Seminole County v. Central Florida Virtual Board, Inc., 5th DCA Case No. 5D12-1505 • School Board of Duval County v. Northeast Virtual School Board., 1st DCA Case No. 1D12-1798 • School Board of Volusia County v. Central Florida Virtual Board, Inc., 5th DCA Case No. 5D12-2440 • School Board of Broward County v. South Florida Virtual Board, Inc., 4th DCA Case No. 4D12-2207 • School Board of Brevard County v. Odyssey Charter School, 5th DCA Case No. 5D12-2474 • School Board of Seminole County v. Renaissance Charter School, Inc., 5th DCA Case No. 5D12-2473 • Emergency Termination Section 1002.33(8)

  17. Recent Legislative Changes • Charter School Nonrenewal or Termination • Failure to participate in state education accountability system, section 1008.31 F.S. • Failure to meet the requirements for student performance • Failure to meet generally accepted standards of fiscal management • Violations of the law or other good cause shown • School District must provide 90 day written notification of nonrenewal or termination • Charter School may timely appeal within 14 days • Direct Hearing conducted by the School District, or • Hearing before an administrative law judge at DOAH • School District has Final Order Authority

  18. Recent Legislative Changes • Immediate Termination by School District • Facts indicating an immediate and serious danger to the health, safety, or welfare of students • School District hearing or DOAH hearing available after termination if requested within 10 days • Termination if charter school earns two consecutive grades of “F” unless: • Charter school was established to turnaround the performance of a district public school • Surrounding student population in district school zone earned a grade of “F” in the year before charter school opened, and charter school earned a “D” in third year • SBE may grant charter school a waiver of termination based on learning gains comparison to similarly situated students in nearby district schools

  19. Questions Comments Suggestions for Next Year

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