RTTT, Proposition 39, and Charter Schools: The Facilities Factor by Laura Preston Melanie Petersen Susan Park January

1. RTTT, Proposition 39, and Charter Schools: The Facilities Factorby Laura PrestonMelanie PetersenSusan ParkJanuary 15, 2010

2. Overview Race to the top (RTTT) Proposition 39 New Timelines Legal Standard Facilities Use Agreement Negotiation Strategies

3. RTTT: What is it? RTTT is a competitive grant program, authorized under the American Recovery and Reinvestment Act of 2009, which encourages and rewards states that implement significant reforms in 4 areas: Enhancing standards and assessments Improving the collection and use of data Increasing teacher effectiveness and achieving equity in teacher distribution Turning around struggling schools

4. RTTT: Funding The U.S. Department of Education will make awards in 2 phases: Phase 1 funding ? Spring, 2010 Phase 2 funding ? by September 30, 2010

5. RTTT: Deadlines Letter of Intent: December 31, 2009 MOU due January 8, 2010 California must submit applications to the U.S. Dept. of Education by January 19, 2010

6. RTTT: Charter School Model Whether California receives Race to the Top funding or not, schools in the bottom 5% will be faced with one of four turnaround models to choose from. Charter schools are one of the models. While the use of the existing school site alleviates some portion of a Proposition 39 request, the fact that the school may need reconfiguration, materials, etc. could lead to a district being faced with Proposition 39 obligations.

7. Proposition 39 Passed November 2000. Added Ed. Code section 47614 creating obligation to provide facilities to charter schools. Don’t confuse with other major part of Prop. 39 (55% Vote for Passage of Bonds) Intent: “. . . public school facilities should be shared fairly among all public school pupils, including those in charter schools.”

8. Proposition 39 Prior Version of Education Code section 47614: A school district in which a charter school operates shall permit a charter school to use, at no charge, facilities not currently being used by the school district for instructional or administrative purposes, or that have not been historically used for rental purposes provided the charter school shall be responsible for reasonable maintenance of those facilities.

9. Proposition 39 Amended Version of Ed. Code section 47614: (a) The intent of the people in amending Section 47614 is that public school facilities should be shared fairly among all public school pupils, including those in charter schools.

10. Proposition 39 What else does Ed. Code section 47614 require? Each district shall make available, to each charter school operating in the district, facilities sufficient for the charter school to accommodate all of the charter school's in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district. Facilities provided shall be contiguous, furnished, and equipped, and shall remain the property of the district.

11. New Timelines Amended regulations are operative for use of facilities in 2009-2010. Established new deadlines, with penalties for missing a deadline. Expanded the definition of terms such as "reasonably equivalent." Imposed additional duties on a school district that is unable to offer a "contiguous" site.

12. New Timelines Summary of Prop 39 Deadlines: November 1: Charter school must submit a written facilities request for the following school year. December 1: District must object to a charter school’s projected ADA, or charter school’s projections are no longer subject to challenge. January 2: Charter school must respond to the district’s objections or the district’s projection is no longer subject to challenge.

13. New Timelines Summary of Prop 39 Deadlines (cont’d) February 1: District’s preliminary proposal is due. March 1: Charter school must respond to the preliminary proposal. April 1: District’s final notification is due. May 1: Charter school must notify the district if it intends to occupy the offered space by May 1 or 30 days after the district’s notification, whichever is later.

14. November 1: Written Facilities Request - Eligibility A charter school must be "operating" in the district. Operating means 80 in-district ADA. A student attending a charter school is "in-district" if he or she is entitled to attend the schools of the district and could attend a district-operated school, except that a student eligible to attend the schools of the district based on interdistrict attendance or based on parental employment shall be considered a student of the district where he or she resides. (5 C.C.R. § 11969.2(c); Ed. Code §§ 46600-46611, 48204(b).)

15. November 1: Written Facilities Request – Eligibility (cont’d) New charter schools are eligible to request facilities only if Submitted its charter petition on or before November 1, 2009, and Receive approval of the petition before March 15, 2010. (5 C.C.R. § 11969.9(a).)

16. November 1: Written Facilities Request – CDE Form (optional)

17. November 1: Written Facilities Request - Components Reasonable projections: In-district and total ADA In-district and total classroom ADA Based on ADA claimed for apportionment in the prior year Adjusted for expected changes in enrollment in the forthcoming year Broken down by grade level Broken down by the school in the district that the student would otherwise attend (5 C.C.R. § 11969.9(c).)

18. November 1: Written Facilities Request – Components (cont'd) Description of the methodology: Independent study program? Is the attendance rate reasonable? Has the charter school experienced growth trends? (5 C.C.R. § 11969.9(c).)

19. November 1: Written Facilities Request – Components (cont'd) Sufficient documentation of the number of in-district students meaningfully interested in attending the charter school to allow the district to determine the reasonableness of the charter school's projection, but that need not be verifiable for precise arithmetical accuracy. Does the documentation reflect the appropriate grade level? Has the charter school opened yet? (intent to enroll forms) Has there been in a decline in enrollment? Has there been a substantial increase in in-district ADA? (grade level bubble, closed school) (5 C.C.R. § 11969.9(c).)

20. November 1: Written Facilities Request – Components (cont'd) Charter school's operational calendar The district site or general geographic area where the charter school wishes to locate Information about the educational program that is relevant to assignment of facilities, i.e., "specialized classroom space“ (science labs, technology, P.E.) (5 C.C.R. § 11969.9(c).)

21. November 1: Written Facilities Request – Components (cont'd) Anything else required by board policy? Districts may also require the charter school either to distribute a reasonable number of copies of the written facilities request for review by other interested parties, such as parents and teachers, or to otherwise make the request available for review.

22. December 1: District’s Objections On or before December 1, the district shall review the charter school's ADA projections and express any objections in writing and state the projections the district considers reasonable. Consequence: If the district misses this deadline, the charter school's projections are no longer subject to challenge, and the district must base its offer of facilities on those projections. (5 C.C.R. § 11969.9(d).)

23. December 1: District’s Objections - Examples Charter school is ineligible to submit a facilities request because: Failed to submit its charter petition prior to November 1. Failed to identify at least 80 in-district students who are meaningfully interested in enrolling. Failed to provide the required information (e.g., operational calendar, ADA breakdown by grade level, etc.)

24. December 1: District’s Objections – Examples (cont’d) Inaccurate methodology: Attendance rate, retention rate, etc. are too high based on prior year(s) data. Growth rate is inconsistent with prior year(s) trends. Exceeds the maximum enrollment capacity described in the charter and/or MOU.

25. January 2: Charter School Responds to District’s Objections On or before January 2, charter school must respond to district's objection. Charter school shall reaffirm or modify its original projections as necessary to respond to the information received from the district. Consequence: If the charter school misses the deadline, the district's projections are no longer subject to challenge, and the district shall base its offer of facilities on its projections.

26. January 2: Charter School Responds to District’s Objections Q: Is the district required to reply to the charter school's response? A: See April 1 deadline. (5 C.C.R. § 11969.9(e), (h)(3).)

27. February 1: Preliminary Proposal - Components On or before February 1, the district shall prepare in writing a preliminary proposal which shall include: Projections of in-district classroom ADA on which the proposal is based Specific location of the space Conditions pertaining to the space, including a draft of any proposed agreement Projected pro rata share amount and methodology Comparison group schools used Description of the differences between the preliminary proposal and the charter school's facilities request (5 C.C.R. § 11969.9(f).)

28. February 1: Preliminary Proposal – Legal Standard "Contiguous" "Furnished and equipped" "Comparison group" "Reasonably equivalent"

29. Contiguous Facilities are contiguous if they are contained on the school site or immediately adjacent to the school site. If the district's preliminary proposal (or final notification) does not accommodate a charter school at a single school site, District's governing board must first make a finding that the charter school could not be accommodated at a single site; and Adopt a written statement of reasons. (5 C.C.R. § 11969.2(d).)

30. Contiguous (cont'd) If the in-district average daily classroom attendance of the charter school cannot be accommodated on any single district school site, contiguous facilities also includes facilities located at more than one site, provided that the district: Minimize the number of sites assigned; and Consider student safety. (5 C.C.R. § 11969.2(d).)

31. Contiguous: Case law Ridgecrest Charter School v. Sierra Sands USD (2005). Facts: Charter school submitted facilities request to school district for 223 students. District offered the use of 9.5 classrooms at 5 different school sites separated by a total of 65 miles. Charter school claimed entitlement to a single site since several sites were capable of accommodating all 223 students. Court ruled that the district abused its discretion.

32. Contiguous: Case law (cont'd) What the court said: "…it seems to reflect a preference for a time before passage of Proposition 39, when a school district was required only to provide a charter school with facilities it was not using." "…at least begin with the assumption that all charter school students will be assigned to a single site, and attempt from there to adjust the other factors to accommodate this goal." "…regulations contemplate that some disruption and dislocation of the students and programs in a district my be necessary to fairly accommodate a charter school's request for facilities." "...accommodating a charter school might involve moving district-operated programs or changing attendance areas…" (quoting CDE). "Classroom size is only one of several criteria for determining equivalency…."

33. Furnished and Equipped: “Furnishings” Reasonably equivalent furnishings necessary to conduct classroom instruction and to provide for student services that directly support classroom instruction as found in the comparison group schools (5 C.C.R. § 11969.2(e).)

34. Furnished and Equipped: “Equipment” Reasonably equivalent equipment Equipment means: Property that does not lose its identity when removed from its location Is not changed materially or consumed immediately (e.g., within one year) by use Has relatively permanent value, and its purchase increases the total value of the district's physical properties. E.g., furniture, vehicles, machinery, motion picture film, videotape, furnishings that are not an integral part of the building or building system, and certain intangible assets, such as major software programs. As found in the comparison group schools (5 C.C.R. § 11969.2(e).)

35. Furnished and Equipped: “Non-District Resources” Furnishings and equipment acquired for a school site with non-district resources are excluded when determining reasonable equivalence (e.g., PTA-donated garden) (5 C.C.R. § 11969.2(e).)

36. Comparison Group Comparison group shall be the district-operated schools with similar grade levels that serve students living in the high school attendance area in which the largest number of students of the charter school reside. For districts whose students do not attend high school based on attendance areas, e comparison group shall be 3 schools in the district with similar grade levels that the largest number of students of the charter school would otherwise attend. For districts with fewer than 3 schools with similar grade levels, the comparison group shall be all district schools with similar grade levels. If none of the district-operated schools has similar grade levels, then a contiguous facility shall be an existing facility that is most consistent with the needs of students in the grade levels served at the charter school.

37. Modifying Existing Sites - Q Q: District operates K-5 elementary schools, 6-8 middle schools, and 9-12 high schools. Charter schools wants a facility to serve grades K-8 that includes playgrounds for primary grades and science labs for older students. Is the District required to build a science lab on an elementary school site?

38. Modifying Existing Sites - A A: District is not obligated to pay for the modification of an existing school site to accommodate the charter school's grade level configuration. However, the parties may enter into an agreement by which the costs of the modifications being paid exclusively by the charter school or by the district, or paid jointly. (5 C.C.R. § 11969.3(a)(4).)

39. Conditions Reasonably Equivalent – Capacity District's obligation to provide classrooms: Same ratio of classrooms (teaching stations) Use the district's classroom inventory, adjusted to exclude classrooms identified as interim housing. "Interim housing" means the rental or lease of classrooms used to house students temporarily displaced as a result of the modernization of classroom facilities, and classrooms used as emergency housing for schools vacated due to structural deficiencies or natural disasters.

40. Capacity – Q Query: The charter petition describes a 20:1 student to teacher ratio. The district has eliminated class size reduction and will be increasing its ratio to 30:1. Is the district required to offer facilities according the charter school's lower loading rate?

41. Capacity – A A: No, the standard for determining whether facilities are sufficient to accommodate charter school students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending public schools of the district. The district satisfies its Proposition 39 obligation by offering the same ratio of classrooms as the comparison group of schools.

42. Reasonably Equivalent – Specialized Classroom Space Factors for providing specialized teaching space: Grade levels of the charter school's in-district students Charter school's total in-district classroom ADA Per-student amount of specialized classroom space in the comparison group schools. (5 C.C.R. § 11969.3(b).)

43. Reasonably Equivalent – Non-Teaching Station Space Non-teaching station space means all of the space that is not identified as teaching station space or specialized classroom space: Administrative space, Kitchen, Multi-purpose room, Play area space. (5 C.C.R. § 11969.3(b).)

44. Reasonably Equivalent – Good Faith Duty District has a duty to negotiate in good faith with the charter school to establish time allocations and schedules so that educational programs of the charter school and district are least disrupted. (5 C.C.R. § 11969.3(b).)

45. Reasonably Equivalent – Condition Factors to consider: Age (from latest modernization) Size (of the site) Interior and exterior surfaces Mechanical, plumbing, electrical, and fire alarm systems, including conformity to applicable codes Technology infrastructure Safe learning environment (suitability of lighting, noise mitigation) Athletic fields and/or play areas. (5 C.C.R. § 11969.3(c).)

46. Reasonably Equivalent – Case Law Bullis Charter School v. Los Altos Sch. Dist (2009) Charter school filed a petition for writ of mandate, alleging that the district failed to: Offer physical space “reasonably equivalent” to that available at district-operated schools Offer a school site with sufficient capacity Allocate reasonably equivalent specialized teaching and non-teaching space Establish arrangements for shared use of non-teaching facilities.

47. Reasonably Equivalent – Case Law (cont'd) Bullis Charter School v. Los Altos Sch. Dist. Capacity: Dispute over square footage and comparison group schools. Court ruling: Relevant calculation is based on ratio of in-district classroom ADA to teaching stations. No requirement ratio be calculated for individual grade levels. Comparison group not limited to 3 schools because students lived in high school attendance area. District used appropriate comparison group for calculation. District’s calculation of ADA/classroom ratio was not arbitrary, capricious, or lacking in evidentiary support.

48. Reasonably Equivalent – Case Law (cont'd) Bullis Charter School v. Los Altos Sch. Dist. (2009) Teaching and (indoor) non-teaching space: District calculated specialized teaching and non-teaching space for each type of facility common to all comparison group sites (e.g., teacher lounges, libraries, and playgrounds), but did not include types of space not present at all sites (e.g., dedicated PTA space). Court ruling: District allocated reasonably equivalent specialized teaching space and indoor non-teaching space.

49. Reasonably Equivalent – Case Law (cont'd) Bullis Charter School v. Los Altos Sch. Dist. (2009) Shared use of non-teaching facilities: Charter school alleged that the final offer of space failed to clearly identify proposed sharing of facilities, particularly use of fields for physical education and sports-related activities. Final offer noted district’s attempts to finalize facilities agreement for past 8 months, with issue of share use of fields during after school hours still outstanding. Court ruling: District failed to comply with 5 C.C.R. § 11969.9(k) by not identifying arrangements for shared space with appropriate specificity, which prevented proper calculation of pro rata share to be charged for such shared use. District and charter school were ordered to negotiate an agreement in good faith regarding use and payment for outdoor space.

50. March 1: Charter School Responds to Preliminary Proposal On or before March 1, the charter school shall respond in writing to the district's preliminary proposal: Express concerns Make counter proposals (5 C.C.R. § 11969.9(g).)

51. April 1: Final Notification On or before April 1, the district must provide a final notification of the space offered to the charter school, including a response to the charter school's concerns and/or counter proposals.

52. April 1: Final Notification (cont'd) Final notification must specifically identify: Classrooms, specialized classroom space, and non-teaching station space offered for exclusive use of the charter school Classrooms, specialized classroom space, and non-teaching station space offered for the on a shared basis with district-operated programs, and arrangements for shared space In-district classroom ADA assumptions for the charter school that the offer was based, if the assumptions are different than what the charter school submitted on or before January 2 Written explanation of the reasons for the differences

53. April 1: Final Notification (cont'd) Final notification must specifically identify: Specific location of the space All conditions pertaining to the space Pro rata share amount Payment schedule for the pro rata share amount, which shall take into account the timing of revenues from the state and from local property taxes (5 C.C.R. § 11969.9(h).)

54. May 1: Intent to Occupy By May 30, or 30 days after the district's final notification, whichever is later, the charter school must notify the district in writing whether or not it intends to occupy the offered space. Consequence: If the charter school misses the deadline, the charter school shall not be entitled to use facilities in the following fiscal year. (5 C.C.R. § 11969.9(i).)

55. Giving the Charter School the Keys At least 10 working days prior to charter school's first day of instruction, the space must be furnished, equipped and available for occupancy. For good cause, the period is subject to reduction by the district, but to no fewer than 7 working days. This is why it is important that the Proposition 39 request submitted by November 1 includes the charter school's operational calendar. (5 C.C.R. § 11969.9(j).)

56. Facilities Use Agreement Required Minimum Terms: All information included in final facilities offer. Exclusive/shared space allocation, location, and conditions pertaining to space. Pro-rata share amount/payment schedule Other Common Terms: -Term/Termination provisions -Maintenance and Operations -Utilities -Installation of Improvements -Insurance -NEW: Reciprocal indemnification provision required -Full Satisfaction of Prop 39/Release of Claims

57. Facilities Use Agreement – Facilities Costs District has no obligation to use unrestricted general fund revenues to rent, buy, or lease facilities for charter school students. District may: Charge a pro rata share for facilities costs paid for out of general fund. Based on ratio of space allocated to charter school. Cannot otherwise charge charter school for use of facilities.

58. Facilities Use Agreement – Facilities Costs (cont'd) “Facilities costs” include: Maintenance and operations Facilities acquisition and construction Facilities rents and leases (5 C.C.R. § 11969.7.)

59. Facilities Use Agreement – Supervisorial Oversight Costs

60. Facilities Use Agreement – Calculating Pro Rata Share Pro rata share may not exceed: Per-square-foot amount equal to facilities costs paid for with unrestricted general fund revenues, Divided by total space of district, Multiplied by amount of space allocated to charter school. (5 C.C.R. § 11969.7.)

61. Reimbursement for Over-Allocated Space If, by February 1 of its first year of operation, a charter school notifies the district that it will have over-allocated space in the following fiscal year, the space identified is not subject to reimbursement for over-allocated space. Over-allocated means: Charter school's actual in-district classroom ADA is less than the projected in-district classroom ADA upon which the facility allocation was based, and The difference is greater than or equal to a threshold ADA amount of 25 ADA or 10 percent of projected in-district classroom ADA, whichever is greater. (5 C.C.R. § 11969.8.)

62. Reimbursement for Over-Allocated Space (cont'd) Charter school must notify the district when it anticipates that it will have over-allocated space. District must notify the charter school whether or not it intends to use the over-allocated space within 30 days of the notification. If the district notifies the charter school that it does not intend to use the space, the charter school must continue to make payments for over-allocated space and pro rata share payments. The per-pupil rate for over-allocated space shall be equal to the statewide average cost avoided per pupil set pursuant to Ed. Code § 42263 for 2005/2006, adjusted annually thereafter by the CDE by the annual percentage change in the general-purpose entitlement to charter schools calculated pursuant to Ed. Code § 47633, rounded to the next highest dollar, and posted on the CDE Web site. (5 C.C.R. §§ 11969.3, 11969.8.)

63. Facilities Negotiations Agree to avoid calculations: Supervisorial oversight rate (fixed amount rather than billing for actual cost) Over-allocated reimbursement rate (fixed amount rather than state rate)

64. Facilities Negotiations (cont'd) Identify potentially controversial issues: Signage Recruitment/outreach Shared campus (e.g., staff lounge, recess schedule, testing schedule) Traffic

65. Facilities Negotiations (cont'd) Multi-year agreement Stability Avoid risk of missing a deadline/consequence Negotiate for the term of the charter instead of annually Prevent material revision to a charter

66. Facilities Negotiations (cont'd) Can be creative Agree to satisfy Proposition 39 obligation through alternative methods Admission/participation in district events (e.g., dances) Non-district students

67. Final Thoughts Evolving area of the law Importance of maintaining a positive relationship