July 11, 2013

A kind of bad decision by the California Supreme Court in Today's Fresh Start

By Joshua P. Thompson Senior Attorney

Earlier today the California Supreme Court issued its opinion in an important charter school case, Today’s Fresh Start v. Los Angeles County of Education.  PLF had filed an amicus brief in support of the charter school.  In a unanimous opinion, the court sided with the county board.

The case presented a due process challenge to the statutory procedures for revoking a charter.  PLF’s brief was primarily a policy brief showing the benefits of charter schools nationally and in California.  We also wrote about how the educational establishment is often biased against charter schools.

The last point was similar to the principal argument advanced by the charter school – that the procedures in place for revoking a charter school’s charter necessarily are biased in violation of due process, because county boards of education — or school boards — are in competition with charter schools for students.  Yet, unfortunately, the charter school had not properly advanced this argument in the court below.  Thus, instead of looking to whether the LA Board administered schools that competed directly with the charters, the court only asked whether the statutory scheme was inherent and facially biased.  The court concluded that it was not.  However, it also made clear that in some cases, charter schools may be able to show bias in fact. For example, if some county board is too intertwined with the revocation procedures and competes with a given charter school for students, it may violate due process if that county board is also the authority that determines whether to revoke a charter.

In fact, given that the charter school failed to advance the argument regarding a competitive bias from this particular county board, this opinion is not all that dangerous.   The court wrote a number of caveats into its opinion, which will necessarily limit the application of this case in future revocation proceedings.  In other words, while the court ruled the statutory scheme constitutional, it did not limit the ability of future charter schools to contest revocation proceedings where the revoking entity competes with the charter school for students.

Indeed, the court went even further in limiting the power of this opinion.  It wrote:

“At issue is the constitutionality of section 47607, subdivision (e), as applied to revocations by county offices of education. We are not presented with, and do not consider, whether the statute satisfies due process in the far more common instance where a local school district is the chartering authority.”

So not only does the Court explain that as-applied challenges can go forward at the county level where bias can be proven, but it also says that a facial challenge to the statute brought by a charter school against a school board – where the school board is the chartering authority – can also go forward.

All-in-all a disappointment, but this decision shouldn’t have too much of an impact on charter schools in California.

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