Charter School Legal Issues

1. Charter School Legal Issues Presented by: Bill Hornback, Counsel, Schools Legal Service

2. Charter School Petitions and Renewals

3. Charter Petitions and Renewals Before the Storm • Have a policy in place • Identify possible resources for assistance, as needed • Be aware of what’s going on around you • Petitioner meetings • Taking it to another level . . . Resolving disputes, dissatisfaction, resistance to change NOW, before it becomes a “charter” topic.

4. Charter Petitions and Renewals, cont. What are my legal obligations? • Schedule and hold a public hearing • Review the petition • Vote on whether or not to grant the petition, making findings as needed • Adopt findings of fact upon which a denial is based • If to be granted, adopt an MOU • If granted, begin supervisorial oversight

5. Charter Petitions and Renewals, cont. What are the grounds for petition denial? • The charter school presents an unsound educational program for the pupils who are to be enrolled in the charter school. • The petitioners are demonstrably unlikely to successfully implement the program set forth in the petition. • The petition does not contain the required number of signatures.

6. Charter Petitions and Renewals, cont. What are the grounds for petition denial?, cont. • The petition does not contain an affirmation of each of the required conditions. • The petition does not contain reasonably comprehensive descriptions of all of the required elements.

7. Charter Petitions and Renewals, cont. What are the grounds for petition denial?, cont. • Assembly Bill (AB) 1172 (Mendoza, D-Norwalk) would expand E.C. 47605(b) by permitting school districts to deny a charter school if the district meets any one of these characteristics: • Received a negative financial certification, • Given an emergency apportionment or loan and is operating under the oversight of a state administrator or trustee, or • Due to declining enrollment, is in the process of closing a school that a charter school petition identified as its proposed site, and has received a qualified certification, or will receive a qualified certification if the charter is granted.

8. Charter Petitions and Renewals, cont. What are the possible vote results? • Grant the petition • Grant the petition with conditions before commencing operations • Conditionally grant the petition • Deny the petition after adopting fact findings

9. Charter Petitions and Renewals, cont. There is a time line, and the clock is ticking. • Immediately upon receiving a petition . . . • In the first week . . . • In the first 30 days . . . • In the first 60 days . . . • Taking it to the next level – consider results of an appeal/grant on appeal . . . • After the fact - Going into competition?

10. Charter Petitions and Renewals, cont. Revisions to the petition: • Can the reviewing agency revise the petition? • Can the reviewing agency suggest improvements? • Is there any obligation to do either? • What happens in the “perfect” world?

11. Charter Petitions and Renewals , cont. What are the indications of success/failure? • Budget, budget, budget – problems indicate likely failure • Conflicts of interest, could be illegality • Motivated by something other than students’ best interests – likely problems ahead • High level of parental/community support – success! • Cloning/conversion of an existing, working program also indicates likely success

12. Required Petition Elements What are the grounds for denial of a petition? • Presents an unsound educational program • Demonstrably unlikely to successfully implement the educational program set forth in the petition • Missing affirmations/assurances of one of the conditions • Missing a reasonably comprehensive description of one of the required 16 elements of the petition • Insufficient signatures

13. Required Petition Elements, cont. What about affirmations? The petition must include affirmations on all required subjects, including: • Nonsectarian in all operations • No tuition • Not deny enrollment to special needs pupils • Meet statewide standards and assessments • Declare who is the exclusive public employer

14. Required Petition Elements, cont. What about affirmations?, cont. The petition must include affirmations on all required subjects, including: • No discrimination based on protected categories • No discrimination based on residence • Require appropriate credentials or other documents • Others, as noted in materials

15. Required Petition Elements, cont. What about signatures? • The code requires signatures of various kinds in various situations • The SBE counts signatures at the time of submission, not looking at anything else • Some agencies validate each signature • Some agencies reject the petition before review if signatures are believed to be invalid or insufficient

16. Required Petition Elements, cont. Reasonably Comprehensive Description • There are no rules binding on school districts or county boards of education • The only rules are only binding on the State Board of Education • You get to decide what is reasonably comprehensive • Must be factually-based to become a reason for petition denial

17. Required Petition Elements, cont. Description Issues and Results • If there is an issue with a required element, the factual basis behind that issue may be a basis for denial. • The same facts may also show that the petition presents an unsound educational program. • The same facts may also show that the petitioners are unlikely to successfully implement their program. • The same facts may be used to show that all the above matters are true.

18. List of Required Petition Elements Description Issues and Results, cont. • A description of the educational program of the school, including the transferability of courses and meeting college entrance requirements • Measurable pupil outcomes • The method by which pupil progress is to be measured • The governance structure of the school

19. List of Required Petition Elements, cont. Description Issues and Results, cont. • Employee qualifications • Health and safety procedures for pupils, including a criminal record summary on employees • Plan for achieving a pupil racial and ethnic balance reflective of the general population of the district • Admission requirements, if any

20. List of Required Petition Elements, cont. Description Issues and Results, cont. • The manner in which independent financial audits shall be conducted • Procedures by which pupils can be suspended or expelled • The application of STRS, PERS or federal Social Security • Public school attendance alternatives

21. List of Required Petition Elements, cont. Description Issues and Results, cont. • District employee rights upon leaving/returning to the district • Dispute resolution procedures • A declaration of whether or not the school is the exclusive public school employer (i.e. collective bargaining) • A description of the school closure procedures

22. What About Appeals? If your agency has denied a petition: • There are no rules • You do not have to do anything • You can participate in the process at any point, if you want to • Your agency has no legal standing in the appeals process • Possible court action if no action taken on appeal by the CBE or SBE within 120 days of receipt

23. What About Appeals?, cont. If your agency has received a petition on appeal: • There is a timeline for action • County boards of education are required by regulations to either grant or deny the appeal • The State Board of Education is only required by regulations to schedule an agenda item for granting or denying, no apparent obligation to actually vote • There is no appeal from denial of a countywide charter petition

24. What About Changes During Appeal? • The law presumes some changes will have to be made. • There is no rule preventing any changes beyond those necessary. • The reviewing agency on appeal may do exactly what you could have done on initial review. • The exact same petition that you denied may be found on appeal to be properly granted.

25. Charter Renewal • Any charter may be renewed, if it meets the requirements for renewal. • All renewals are for a period of five years. • Renewal petitions must be reviewed using the same standards as an original petition + new laws (not laws in effect when first granted). • Denial of renewal may be appealed. • Denial of a countywide charter renewal may be appealed.

26. Charter Renewal, cont. What are the renewal requirements? • Met statutory API growth target • Ranked in deciles 4-10 on the API (state) • Ranked in deciles 4-10 on the API (comparable schools) • The granting agency determines that the academic performance of the school meets a set standard • Has qualified for the Alternative School Accountability Model (CCR, Title 5, Sections 1068-1074)

27. Charter Renewal, cont. Should not be automatic and should be timed so that no one is inconvenienced by lack of time, including time to appeal any denial of renewal.

28. Charter Revocation What are grounds for revocation? • Committed a material violation of any of the charter (or MOU) • Failed to meet/pursue any of the pupil outcomes • Failed to meet GAAP, or engaged in fiscal mismanagement • Violated any provision in the Charter Schools Act • Violated any provision of law

29. Charter Revocation, cont. What is the process for revocation? • The code sets forth the process to follow. • The revocation process only applies when the grounds for revocation also require a chance to cure the violation. • There is no statutory “cure” period for a revocation based on a severe and imminent threat to the health or safety of the pupils, but new regulations create an appeal process.

30. Charter Revocation, cont. Can any revocation be appealed? • Any revocation may now be appealed. • Denial or reversal of a revocation appeal may be appealed. • The test on appeal is whether the revocation is based on substantial evidence. • If overturned on appeal, the agency that granted the charter remains the oversight agency.

31. Charter School Facilities

32. Proposition 39 - Charter School Facilities • You have facilities obligations to all in-district students, whether or not they are enrolled in your schools. • You have facilities obligations to charter schools granted by someone else, if your students are enrolled. • Adverse impacts on your agency do not give you an excuse for refusing to provide facilities . . . Maybe. • Lots of regulations exist on this subject.

33. SB 740 Facilities Grant • Reimbursement up to $750 per ADA; up to 75% of rent/lease • Must operate in nondistrict or nonstate funded facilities • Classroom-based programs only • Elementary attendance area or own enrollment at least 70% free and reduced • Fully funded for reimbursement and partly funded for current year • 50% funding in current year; 50% reimbursement

34. Charter School Facility Regulations • Are detailed • Are confusing • Cost formulas are not easy to understand • Contain a provision stating that any facilities agreed to by the agency and the charter school can meet the requirements of the law • Dispute resolution requires nonbinding mediation

35. Charter School Facilities • May be requested if the school has projected having at least 80 units of ADA consisting of district pupils • Are not required to be provided for nondistrict pupils • Must be “reasonably equivalent” to district facilities • Must be “contiguous” • Must be located reasonably near where requested • Must be maintained by the charter school, except for capital improvements

36. Questions and Answers