April 5, 2013

It's time for Supreme Court guidance on Proposition 39

By Joshua P. Thompson Senior Attorney

This morning, PLF filed this letter brief asking the California Supreme Court to review the court of appeal’s decision in California Charter Schools Association v. Los Angeles Unified School District.  The case has to do with how charter schools are supposed to be treated when school districts are allocating facilities.  In California, charter schools are supposed to be treated as public schools’ equals.  That’s what California voters mandated when they enacted Proposition 39 in 2000.

Proposition 39 requires that school districts make facilities available to charter schools that are “reasonably equivalent” to public school facilities.  But what does “reasonably equivalent” mean?  Well, the Department of Education passed regulations telling school districts exactly what “reasonably equivalent” means.  Despite this clear requirement on how school districts are supposed to comply with Proposition 39, the Los Angeles school district (LAUSD) decided that it would “comply” Proposition 39 through its own method — a method that left the school district’s charter schools with significantly less classroom space than they would have been entitled had LAUSD actually followed the regulations.   So, the charter schools sued, and asked the court to make LAUSD follow the law.

The trial court agreed with the charter schools — holding that the regulation is clear, and that LAUSD made no attempt to follow it. But, the court of appeal reversed.  In a very strange opinion, the court of appeal held that “anomalous results” would ensue if LAUSD had to actually follow the clear language of the regulations.

But administrative regulations are not passed on a whim.  As another PLF case makes clear, regulations are adopted after notice and comment from both sides of the debate — the regulated public and the state.  When the Department of Education adopted these precise regulations in order to abide voter intent with respect to Proposition 39, they heard from school districts, charter schools, teachers, etc.  They chose these precise regulations knowing what the effects would be.  If those regulations succomb to “anomalous results” the proper course is for California’s school districts to petition the Department of Education for regulatory change.  Then the Department can solicit comments from both sides of the debate, and design different regulations that don’t produce such results, while also bearing in mind voter intent that charter schools be given “reasonably equivalent” facilities.

Instead, the court of appeal’s decision gives school districts’ carte blanche to devise their own methods for determining what constitutes “reasonably equivalent” facilities.  And as history has shown, school districts want anything but fair competition from charter schools.  In fact, that is exactly why California voters adopted Proposition 39.  Schools districts were refusing to fund charter schools on an equal basis.  In response, California voters adopted Proposition 39, forcing them to do precisely that.

If the court of appeal’s decision stands, we can expect the charter school antagonism to rev back up.  School districts would be able to devise their own formulas for deciding if the facilities offered to charter schools are “reasonably equivalent.”  The California Supreme Court needs to nip this trend in the bud.  School choice in California could depend on it.

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