FINDINGS OF FACT AND STAFF RECOMMENDATION RE: TRI-VALLEY LEARNING CORPORATION CHARTER PETITION

1. FINDINGS OF FACT AND STAFF RECOMMENDATION RE: TRI-VALLEY LEARNING CORPORATION CHARTER PETITION Thurbon & McHaney, LP March 9, 2010

2. BACKGROUND • On or about January 11, 2010, Tri-Valley Learning Corporation (“TVLC”) presented its Charter Petition for approval to the Dublin Unified School District; • Upon receipt of the Petition, the Superintendent identified individuals with the necessary expertise and convened a Review Team for the purpose of analyzing the contents of the Petition.

3. BACKGROUND • The Team Members consisted of the following individuals: • Dr. Stephen Hanke, Superintendent • Dr. Dave Marken, Assistant Superintendent, Human Resources • Beverly Heirionimus, Assist Superintendent, Business Services • Pam Lear, Director of Educational Services • Bryce Custodio, Coordinator of Student Services/ Alternative Education • Dr. Blaine Cowick, Director of Special Education • Jacqueline McHaney, Thurbon & McHaney

4. BACKGROUND On February 4, 2010, the Board of Trustees of the Dublin Unified School District convened a public hearing to comply with the provisions of Education Code Section 47605(b) to consider public input and the level of public support for the TVLC Charter. At the public hearing, no public support was expressed for the TVLC Charter Petition.

5. LEGAL STANDARD FOR REVIEW In reviewing the Petition, staff has been guided by the intent of the California Legislature that charter schools are and should become an integral part of the California educational system and that establishment of charter schools should be encouraged if they present a sound educational program that is likely to succeed.

6. LEGAL STANDARD FOR REVIEW Staff and the Board of Trustees have a clear understanding that they may not deny a petition unless the Board makes written factual findings, specific to the particular petition, setting forth specific facts to support one, or more, of the following findings: 

7. LEGAL STANDARD FOR REVIEW • (1) The charter school presents an unsound educational program for the pupils to be enrolled in the charter school. • (2) The petitioners are demonstrably unlikely to successfully implement the program set forth in the petition. • (3) The petition does not contain the number of signatures prescribed by the Education Code. • (4) The petition does not contain an affirmation of each of the conditions prescribed by the Education Code. • (5) The petition does not contain reasonably comprehensive descriptions of certain specific aspects of its program and operations.

8. RECOMMENDATION OF DENIAL After careful consideration of the TVLC Charter Petition and comments received at the public hearing on the Charter Petition at which the Board of Trustees afforded to every interested person an opportunity to address this issue either in writing or orally, it is the Superintendent’s and staff’s recommendation that the Board of Trustees of the Dublin Unified School District deny the TVLC Charter Petition on the grounds that:

9. RECOMMENDATION OF DENIAL (A) The charter school presents an unsound educational program for the pupils to be enrolled in the charter school. (B) The petitioners are demonstrably unlikely to successfully implement the program set forth in the petition. (C) The petition does not contain reasonably comprehensive descriptions of certain specific aspects of its program and operations as required by law. Based on the following Findings of Fact:

10. FINDINGS OF FACT The following proposed findings of fact have been grouped for convenience under the aforementioned grounds for denial of a charter petition; however, certain findings of fact may support more than one ground of denial.  

11. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM “Unsound educational program”: “A program … “that is not likely to be of educational benefit to pupils who attend.” Staff finds that the Petition’s discussion of the proposed educational program demonstrates an unsound educational program for the following reasons:

12. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition proposes a program that is intended to “increase learning opportunities for all pupils, with special emphasis on expanded learning experiences for pupils identified as academically low achieving.” While TVLC describes several broad-brush approaches to student learning, the document does not articulate a detailed understanding of how learning occurs; directly supporting specific educational philosophies of learning, research-based practices, or lesson design for pupils identified as low achieving.

13. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • At this time, the program has not been delineated and refined clearly enough to provide a comprehensive program at which students may succeed. Particularly concerning is its lack of thoughtful planning for students who will need immediate, in depth support during the school day. This includes, but is not limited to, English learners and special education students. There is very little detail as to the manner in which TVLC will provide services to the aforementioned groups of students, particularly since the petition purports to place a “special emphasis on expanded learning” for this segment of the student population.

14. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition states that its “educational philosophy” is to provide a program that is intended to “provide a college-prep environment that represents the highest academic and civic standards for all students…” Particularly concerning is the lack of any reference to meeting the needs of academically low achieving students in the educational philosophy statement of the petition.

15. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition states that its “educational philosophy” is to provide a program that is intended to “provide a college-prep environment that represents the highest academic and civic standards for all students… through rigorous curricula, innovative teaching practices, and integration of the latest technology in the classroom.” However, the curriculum is described in very general terms. For example, the petition contains essentially one paragraph descriptions of each of the subjects the school’s first incoming 9th grade students “may” be expected to take. There are no specific content standards or outcomes described. Nor is there any attempt to tie curriculum, instructional materials, instructional methods, standards and assessments together.

16. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM In fact, at this time, the “curriculum and content” has not been delineated and refined clearly enough to provide enough information to assess whether the TVLC’s educational philosophy and proposed program set forth in the petition can succeed. It is significant to note, the curriculum plan submitted with the petition states “the following course descriptions are a sample of the courses that may be offered…” It is also significant to note that the “draft:” course offerings submitted do not support the specific educational philosophies set forth in the petition namely to provide a “college-prep environment that represents the highest academic …. standards…”

17. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM There is a significant repetition of the use of multiple intelligence strategies throughout the document, but no where does the petition explain how these strategies will be delivered or implemented nor is it clear that TVLC understands what these strategies are.

18. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition briefly mentions a number of ancillary programs that will support the academic program and students. For example, community based and service-based learning and partnerships with other programs and community organizations are proposed. However, there are no plans describing how these programs will be developed, what work has been done to date or over what period of time the programs are intended to be implemented.

19. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition mentions that it will offer a “wide selection of extra-curricular opportunities including student clubs and academic competitions..” but there are no plans describing how these programs will be developed, what work has been done to date or over what period of time the programs are intended to be implemented, or how such programs will be funded. At this time, the “extra-curricular” program has not been delineated and refined clearly enough to provide a comprehensive program to be analyzed to ascertain whether the petition presents a sound educational program.

20. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition mentions that “we intend to compete in the North Coast Section … in the following sports: soccer, lacrosse, basketball, cross-country, track & field, badminton, tennis, golf, volleyball, softball, baseball, swimming and diving..” but there are no plans describing how these programs will be developed, what work has been done to date or over what period of time the programs are intended to be implemented, or how such programs will be funded. At this time, the “sports” program has not been delineated and refined clearly enough to provide a comprehensive program to be analyzed to ascertain whether the petition presents a sound educational program.

21. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM The petition states that its “educational philosophy” is to provide a program that is intended to “provide a college-prep environment that represents the highest academic and civic standards for all students…” On Page 14 the petition also states that “graduates will be required to meet the basic curriculum requirements for graduation as detailed by the California Board of Education.” Particularly concerning is the fact the TVLC’s graduation requirements are far below what virtually every high school in California requires for graduation as well as what is expected for college entrance. With these minimal graduation requirements, TVLC is not congruent with their own educational philosophy. Furthermore, the petition contains inconsistent statements concerning graduation requirements.

22. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition does not evidence a detailed understanding of identifying and serving the needs of academically low achieving students. For example, the petition defines low-achieving and at-risk students using terminology that refers to a norm-referenced test, not the California State Standards Criterion referenced tests. • While TVLC describes several broad-brush strategies for instruction and intervention, the document does not articulate a detailed research based intervention plan or how this program will be developed, what work hasbeen done to date or over what time period the programs are intended to be implemented or how they will be funded.

23. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition contains suggested subject matter competencies, but it does not appear that the California State Standards and Curriculum Frameworks were utilized in establishing the list of competencies. The competencies listed in the petition are not from the state standards. There are no state standards addressed in any of the identified areas (i.e., English, History, Math, Science, Art, Foreign Language, Technology), with the possible exception of Foreign Language. It is significant to note that there are no grade levels specified for their subject matter competencies. The competencies listed are broad and unable to be measured.

24. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition does not evidence a detailed understanding of assessment procedures or grading strategies. There is no mention of how TVLC will establish calibration methodology in order to meet state standards or ties these assessments strategies to state standards. • The petition contains inconsistencies between the performance criteria and grade scale chart. The document does not articulate how they will reconcile the use of Rubrics vs. Grade Scale chart.

25. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The petition briefly mentions standardized tests but only in reference to the state-mandated standardized assessments. There is no mention of Formative or Summative exams in relation to content standards and on page 25 the petition provides that it will “… give familiesand students information about student progress toward “our own” and State achievement standards.” This is very concerning. How will grading be linked to California State Standards? What are they referring to as “their own” standards? What is meant by students are assessed four times per year on our school-wide quarterly report card” ? The document does not articulate a detailed plan for addressing these issues.

26. A. TVLC PRESENTS AN UNSOUND EDUCATIONAL PROGRAM • The portion of the petition addressing PE is missing the new state requirements for the Physical Fitness testing and the eight areas of focus for curriculum to meet state standards. In conclusion, as a result of the deficiencies and lack of information noted above, we cannot conclude that the petitioners present a sound program which is likely to be of educational benefit to students who may attend the school.

27. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION The budget documents that were submitted appear to present an unworkable and/or inaccurate budget. For example: The Charter School’s enrollment projections do not appear realistic. The Projected enrollment in the charter petition appears to be overly ambitious. The charter petition states that enrollment in the first year of the charter’s operation will consist of 216 students in grades 9-12, the second year of 432 students in grades 9-12, the third year of 648 students in grades 9-12, the fourth and fifth year of 864 students in grades 9-12. The projected growth at it peak appears to be 100% percent and its low 33% percent.

28. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION • These enrollment numbers would reflect 50% of the District’s 8th grade students entering 9th grade, which is unreasonable. These enrollment numbers are very large enrollment numbers to start with, and increase at a dramatic rate, with no adequate explanation provided as to the basis for the growth estimates. The Charter School’s budget is completely tied to its unrealistic enrollment and enrollment growth projections, thus, if the projected enrollment fails to materialize the budget becomes completely unworkable.

29. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION • The Petition lacks an articulated plan calculated to ensure sufficient enrollment will be achieved, and lacks an articulated contingency if under-enrollment occurs, which is particularly significant given the questionable financials/cash-flow projections and the questionable spikes in projected enrollment from year-to-year. • Although the school business plan appears to present a balanced budget with reserves at the end of each of the next three years, this is illusory as the budget is built on faulty assumptions in the first instance. Revenues are grossly overstated and expenditures are grossly understated. For example, funds allocated for textbook acquisition will not even fund the basic texts for the projected student enrollment. The same is true for consumable supplies.

30. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION The petition briefly mentions a number of ancillary programs that will support the academic program and students, but such programs are not supported in the budget. There is no staff development funds allocated for administrators. There are no funds allocated for stipends for extra-curricular activities, clubs or sports outlined in the petition. The petition states it will have the latest state of the art technology, but there is an inadequate funding plan for acquiring such hardware and software.

31. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION • High school teacher salaries are grossly understated. Salaries noted in the petition barely meet the beginning teacher salary for elementary school teachers. Additionally, the salaries noted indicate annual increases of 4.5%, when the state’s situation for cost of living is dire and they are not funding it. • The petition states that its “educational philosophy” is to provide a program that is intended to “provide a college-prep environment that represents the highest academic and civic standards for all students…through rigorous curricula, innovative teaching practices, and integration of the latest technology in the classroom.”

32. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION • However, based upon a review of the level of training and experience of the signatory teachers to the petition, it is of particular concern whether TVLC’s staffing plan can meet and successfully implement the program outline in the petition. This is of particular concern because the salaries are not realistic for recruiting teachers necessary to implement the program outlined in the petition. TVLC’s petition provides no plan on how it will respond to this issue if increases in salary become necessary in the first three (3) years of planned operation to recruit and/or retain teachers qualified and competent to implement the program outlined in the petition.

33. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION • The budget projection assumes that the charter will receive a total of $450,000 in implementation grants from the California Department of Education (CDE) over a three year period. Implementation grants provided by the CDE are competitive and there is no guarantee that TVLC will be awarded grants in the stated amounts or at all. If the projected competitive grant funds fail to materialize the budget becomes completely unworkable. It is readily apparent from reviewing the financial information provided that TVLC has grossly overstated revenues and understated expenditures. Adjustments in these areas demonstrate that expenses will exceed revenues from the first year of operation.

34. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION • TVLC has also failed to address the issue of cash flow as it relates to its deficit spending as well as the deferrals of apportionments from the state and if enrollment does not materialize at the dramatic increases projected. • These three issues will cause TVLC to experience severe cash flow concerns throughout all the planned years of operation and TVLC’s petition provides no plan on how to respond to this problem. The demonstrated lack of financial soundness of the petition indicates the petitioners are demonstrably unlikely to successfully implement their program.

35. B. PETITIONERS ARE DEMONSTRABLY UNLIKELY TO SUCCESSFULLY IMPLEMENT THE PROGRAM SET FORTH IN THE PETITION • At the required public hearing, there was no support for the petition demonstrated by the District’s teachers and other employees, and by parents. Such lack of demonstrated support indicates the petitioners are demonstrably unlikely to successfully implement their program.

36. THE PETITION DOES NOT CONTAIN REASONABLY COMPREHENSIVE DESCRIPTIONS OF CERTAIN ASPECTS OF ITS PROGRAM AND OPERATIONS.

37. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • In addition to the findings set forth above, the description of the education program is not reasonably comprehensive for numerous reasons including, but not limited to, the following: •  No information was provided indicating the Petitioner has consulted with the County Office or SELPA staff regarding specific responsibilities for the provision of instruction to special needs students; •  No specific information was provided regarding the Charter School’s fiscal allocation plan for special education;

38. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • No specific information was provided regarding the Charter School’s precise responsibilities for service delivery to special needs students including referrals, assessment, instruction, due process, and agreements describing allocation of actual and excess costs; • No specific information was provided regarding related special needs services, including transportation; • No sample “master agreement” was provided for District review to ensure compliance with State Audit Guide documentation requirements for independent study apportionment;

39. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The description of the governance structure is not reasonably comprehensive based on numerous reasons including, but not limited to, the following: •  TVLC’s conflicts of interest code is inadequate. The Petition states that it will “adopt policies and procedures regarding self-management and conflicts of interest, but the Petition does not state it will comply with the Political Reform Act or with statutory prohibitions against financial interests in contracts (e.g., Government Code section 1090).

40. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING The Bylaws as currently written permits the Directors of the Corporation to contract with entities in which Directors are associated or hold a direct economic interest, subject only to the disclosure criteria set forth in Article IX. For this reason, nothing appears to prohibit the employment of Directors as employees It permitted, a potential conflict of interest exists if any employee or “interested person” serves as a Director pursuant to Government Code sections 1090 and 53227.

41. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The described governance and corporate structures contain inconsistencies, ambiguities, and omissions. The Petition states all meetings of the Board of Directors “will be held in accordance with the Brown Act.” However, the Corporate Bylaws authorize Board of Directors meetings “at any place within California,” which is inconsistent with the Brown Act. (Government Code section 54954(b).) The Corporate Bylaws permit action by a “majority of the Board members present,” but the Brown Act only permits action by a “majority of the members of the legislative body” whether present or not. (Government Code section 54952.6.)

42. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The Corporate Bylaws are inconsistent with the Petition because the Bylaws authorize the Board of Directors to “delegate management of the Corporation’s activities [operation of the school] to any person(s), management company or committees.…” The Petition states that “one Board seat must be made available to a representative” of the chartering entity, but omits that the District’s “representative” will be a voting member, as permitted by Education Code section 47604(b). In fact, the Bylaws state the chartering authority Representative “shall not be entitled to vote….”

43. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • TVLC’s Articles of Incorporation do not appear to have been filed with the Secretary of State. • Dublin parent and community involvement is unclear. The Petition does not comprehensively describe the roles parents and community members will play in the actual governance structure of the school. The Petition appears to limit their role to only an advisory capacity (:School Site Boards shall act in an advisory capacity with respect to the Board and shall report to the Board at its regular meetings…”) The Petition provides a very restrictive opportunity for Dublin parent and/or community involvement or participation on the TVLC’s Board of Directors.

44. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The description of employee qualifications is not reasonably comprehensive. The Petition does not identify a minimum number of teaching positions which will be fully credentialed. The Petition’s description of qualifications do not state any requirement that the Charter School’s Principal have past administrative experience with school settings for students in grades nine through twelve.

45. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The description of the procedures to ensure the health and safety of pupils and staff is not reasonably comprehensive. The Petition indicates the Tassajara Prep “will adopt a comprehensive policy..” for “sexual discrimination and harassment,” but fails to provide a copy of this policy for District review to ensure compliance with State and federal requirements. The Petition fails to identify the staff member responsible for handling sexual and/or racial harassment complaints, the procedures and timelines for handling and responding to such complaints, and how staff and students will be notified of these procedures.

46. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The description of the admissions criteria is not reasonably comprehensive. The Petition provides for a “public random drawing” to determine enrollment for impacted grade levels and gives preference to continuing pupils attending the Charter School as permitted by Education Code section 47605(d)(2)(B), but the Petition fails to give equal preference to students residing within the District as required in Section 47605(d)(2)(B). • The Petition also fails to specify whether the “public random drawing” will occur within the District’s jurisdiction, provide a process to implement the drawing, or explain how the preference will be applied in the process. The Petition does not provide any specific information regarding the Charter School’s enrollment timelines. The Petition also provides for preferential enrollment of the paid staff of the Charter School.

47. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The description of the manner in which audit exceptions and deficiencies will be resolved to the satisfaction of the District is not reasonably comprehensive. The Petition indicates exceptions and deficiencies, if any, will be resolved to the satisfaction of the District. It is necessary for the Petition to provide a clear procedure as to how exceptions and deficiencies will be resolved with the District and a time frame for resolution of negative findings that is not overly burdensome on the District (requiring that resolution occur, if at all, before the beginning of the subsequent school year).

48. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The description of the manner by which staff members will participate in retirement systems is not reasonably comprehensive. The Petition indicates Charter School staff “will participate in a qualified retirement plan including, but not limited to, State Teachers Retirement System (“STRS”), Public Employees retirement System (“PERS”), and/or the federal social security system….” However, the Petition fails to indicate the Charter School will notify all applicants for positions that “accepting

49. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING employment in the charter school may exclude the applicant from further coverage in the applicant’s current retirement system....” as required by Education Code section 47611. • The description of the procedures to be followed by the Charter School and the District to resolve disputes is not reasonably comprehensive. The Petition’s internal dispute resolution procedure appears to prohibit the District from intervening in any internal dispute between the Charter School and students, parents, etc, and provides no notice to the District of any such disputes. This procedure unreasonably restricts the Board from exercising its oversight responsibilities.

50. C. CERTAIN COMPREHENSIVE DESCRIPTIONS ARE MISSING • The description of the site and/or facility to be used by the Charter School is not reasonably comprehensive. The Petition fails to identify and provide specific information regarding the facility to be utilized by the Charter School as required by Education Code sections 47605(a)(1) and (g). However, it should be noted that the Dublin Unified School District is a single high school site school district and thus it has been confirmed with Petitioners that the proposed Charter School will be located on the campus of the existing high school inasmuch as it is the only facility that is reasonably equivalent and grade level appropriate for the location of a high school charter school.