CSBA, ACSA & CASBO FILE SUIT TO BLOCK PROP 39 CHARTER RULES FROM TAKING EFFECT THIS FALL; COURT DATE OCT. 3rd.

By smf for 4LAKids

20 September 2008 - The California School Boards Association (“CSBA”), together with its Education Legal Alliance and the Association of California School Administrators (“ACSA”) and the California Association of School Business Officers (“CASBO”), has filed a lawsuit to block new State regulations governing how school districts assign facilities to charter schools from taking effect this fall.

Prop. 39 requires school districts to provide facilities for students from their districts that attend charter schools located in the district. Despite the remaining concerns raised by CSBA and many other groups, the SBE approved the revised regulations at its January ['08] meeting, thus beginning the formal rulemaking process. The plaintiffs have filed suit to challenge implementation of the new regulations.

Plaintiffs object to certain proposals in the new regulations:

· The current requirement to furnish and equip charter facilities for in-district students has been expanded to include providing

o front office equipment

o and the nebulous phrase “student services that directly support classroom instruction.”

· The heart of the matter is the new regulations reduce district discretion over facilities requests.

The case will be heard in Sacramento County Superior Court on Oct 3^rd.

 

ACSA Press Release: PROP. 39 SUIT CASTS DOUBT ON CHARTER REGS

Sept. 1, 2008 - Recently the Association of California School Administrators Education Legal Support Fund joined a lawsuit filed by the California School Boards Association’s Education Legal Alliance against the State Board of Education. The gist of the lawsuit is that the State Board of Education overstepped its legal authority when it amended regulations pertaining to Proposition 39 and charter school facilities.

“This lawsuit reflects our long-term concerns that the state Board of Education is establishing policy outside its statutory scope in disregard to the overall impacts the policies have on school districts and county offices of education,” said ACSA Management Services Executive Brett McFadden.

Prop. 39 requires school districts to provide facilities for students from their districts that attend charter schools located in the district. There have already been four court cases over this issue. Charters have contended that districts have been unfair in the allocation of these facilities, so the issue went before the SBE.

SBE passed the amended regulations back in January. Up until that point, ACSA had been in negotiations for nearly two years with SBE over its proposed changes to Proposition 39 regulations. ACSA and CSBA, along with the California Association of School Business Officials and the California Teachers Association, attempted to scale back the enormous changes proposed by the charter school community to provide school facilities. During the course of 2007, all the groups collectively opposed the regulations before the SBE each time they were proposed.

The lawsuit objects to certain proposals in the new regulations. For example, the current requirement to furnish and equip charter facilities for in-district students has been expanded to include providing front office equipment and the nebulous phrase “student services that directly support classroom instruction.” The heart of the matter is the new regulations reduce district discretion over facilities requests.

ACSA testified before the SBE at each of its hearings on the proposed regulations, believing that they are outside the scope of the Board and must be introduced through legislation. The regulations had been submitted to the Office of Administrative Law and then pulled back, only to be resubmitted with a few new changes, not the changes that the associations supported.

The State Board took up the issue at its January meeting, with ACSA and the other associations still arguing to oppose the regulations and to posit for a legislative solution. However, SBE approved the Prop. 39 regulations over ACSA’s and the other groups’ objections. Past Board President Ken Noonan and board member Jim Aschwanden were the only two no votes.

The changes in the regulations are varied and quite extensive. These include:

• Shortened deadlines for responding to facilities requests with additional consequences in place for school districts that miss deadlines. These shorter timelines will impose additional hardships on districts, especially those with multiple charter requests.

• Revising the term contiguous by requiring charter students be given the same consideration as in-district students, subject to the requirement that the facilities provided to charter schools must be contiguous. This term is very ambiguous and is not measurable. If the facilities offer cannot accommodate a charter school at a single site, the district’s governing board must make an appropriate finding and adopt a statement of reasons why.

• Revising furniture and equipment requirements to be reasonably equivalent to comparison school groups. This new standard is confusing and creates an ambiguous standard that is not tied to standard accounting practices for its property assets and will likely add to the confusion of this issue and enlarge the scope of what districts must provide. It appears that districts will be required to provide front office equipment and additional, undefined support furnishings and equipment beyond the classroom.

• Special consideration of conversion charter schools to require a district to maintain a conversion charter school on its original site. The district would be allowed to move the school only if the charter school subsequently changed its charter or through a specified waiver process. This provision provides conversion charters with the right to occupy facilities beyond what is provided to other non charter schools and start-up charters in the district.

• Facilities charges must now be reported to CDE by June 1 of each year. The charter school is required to submit its per-square-foot charge, while the districts can provide their explanation of these charges if they want to.

“Unfortunately, as the policymaking process becomes more entrenched, the necessity of our Education legal Support Fund increases proportionally,” McFadden said. “The fund is the primary way ACSA’s interests and concerns can be vetted in a legal arena.”

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Contact: Julie White: jwhite@acsa.org; (800) 608-ACSA

from CSBA Winter Report: Revision of Proposition 39 charter school facilities regulations

Background:

In 2002, the state Board of Education adopted regulations implementing the facilities requirements of Proposition 39, including regulations requiring binding arbitration to resolve facilities disputes between charter schools and districts. This proposal was adopted by the SBE, but ultimately rejected as unauthorized.

Since the passage ofProposition 39, there have been four court decisions relating to charter school facilities issues. CSBA and the Alliance learned of an effort starting about [2 years ago*] by charterschool interests and California Department of Education staff to develop proposed revisions to the existing regulations to incorporate the court decisions and to revisit the dispute resolution procedure. Informal discussions took place and CSBA/Alliance was a participant.

Many of the CSBA and Alliance concerns were addressed but objections remain, particularly with the dispute resolution process.

Recent Activities:

Despite the remaining concerns raised by CSBA and many other groups, the SBE approved the revised regulations at its January ['08] meeting, thus beginning the formal rulemaking process. [As| our objections are not appropriately addressed, the Alliance [has] to file[d] a lawsuit to challenge implementation of the new regulations.

* bracketed changes update timeline.

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LOZANO SMITH

Partnering For Excellence In Education and Government

CLIENT NEWS BRIEF

No. 27 August 2008

LAWSUIT SEEKS TO INVALIDATE

NEW PROPOSITION 39 REGULATIONS

The California School Boards Association (“CSBA”), together with its Education Legal Alliance and the Association of California School Administrators (“ACSA”) and the California Association of School Business Officers (“CASBO”), has filed a lawsuit to block new State regulations governing how school districts assign facilities to charter schools from taking effect this fall. Proposition 39 (Ed. Code § 47614; “Prop 39”) requires school districts to provide facilities to charter schools that request facilities and that meet certain basic criteria. Regulations governing how facilities are allocated pursuant to Prop 39 have been in effect for some time. This year, the State Board of Education (“SBE”) adopted substantial revisions to the Prop 39 regulations (Cal. Code Regs., tit. 5, §§ 11969.1 et seq.; see 2008 CNB No. 10).

The CSBA lawsuit asserts that the SBE exceeded its regulatory authority in adopting the revised regulations and, therefore, the regulations are invalid. Specifically, CSBA claims that many of the regulations impose requirements on school districts that are not authorized by Prop 39 or any other law. Among other things, the lawsuit contends that the new regulations expand the definition of a “furnished and equipped” facility, greatly limit the circumstances under which a “conversion” charter school can be moved, impose burdensome timelines for responding to facilities requests, and require that school districts indemnify charter schools for the use of district facilities, all in excess of the existing law. CSBA contends that because the SBE exceeded its authority in enacting the revised regulations, the regulations should be blocked from taking effect for the upcoming round of facilities requests.

A hearing on the CSBA lawsuit is scheduled for October 3, 2008, in Sacramento County Superior Court. If CSBA were to prevail at that hearing, the revised regulations might not be in effect for the upcoming Prop 39 facilities requests. Under the revised regulations, facilities requests are due November 1, but under the previous version of the regulations requests were due October 1.

Therefore, if CSBA obtains a favorable ruling on October 3, school districts and charter schools could face a confusing situation, since if the court invalidates the revised regulations and reinstates the previous version of the regulations, charter schools that were waiting to submit facilities requests by the November 1 deadline imposed by those regulations could find themselves having missed the newly re-imposed October 1 deadline.

Lozano Smith will continue to update its clients on the status of the CSBA lawsuit and the requirements of the new Prop 39 regulations.

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.

Written by Devon Bethany Lincoln (dlincoln@lozanosmith.com),

an associate in the Monterey office and

Ed Sklar (esklar@lozanosmith.com), a shareholder in the San Ramon office.

Ed and Devon are co-chairs of the Charter Schools Practice Group.