February 6, 2015

Oral argument held in CCSA v. LAUSD

By Joshua P. Thompson Senior Attorney

On Wednesday, PLF attorneys attended the California Supreme Court argument in California Charter Schools Association v. Los Angeles Unified School District. Fortunately for us, the California Supreme Court was meeting in Sacramento this week, so we could just walk a couple blocks to the courtroom.  And for school choice advocates like us, it was a pleasant argument to witness.

As I have explained on this blog a couple of times, this case concerned a Proposition 39 enforcement action brought by the California Charter Schools Association. Proposition 39 is a voter approved initiative that guarantees charter school students equal access to facilities as that enjoyed by traditional public school students. The legal term used in Proposition 39 is that the facilities must be “reasonably equivalent.”  Proposition 39 also directs the California Department of Education to promulgate regulations to define what “reasonably equivalent” means.

Shortly after Proposition 39 was adopted, the Department did just that. It adopted regulations that require school districts allocating charter school funds to follow specific steps when determining what charter school students are entitled.  The regulations are lengthy and specific. There are certain things a school district must count to determine what charter schools are to receive. These regulations are necessary. “Reasonably equivalent” is a vague term and if school districts were left to their own devices we know from experience that charter school students will get the short end of the stick.

This case arose when LAUSD unilaterally decided not to follow the regulations, and instead chose to provide its own interpretation of “reasonably equivalent.”  Lo and behold, Los Angeles charter school kids got the short end of the stick.  So the Charter School Association sued, and argued that LAUSD must follow the Proposition 39 regulations when determining “reasonably equivalent” facilities.  The Association won in the trial court, but the court of appeal reversed, holding that “anomalous results” would follow if LAUSD were required to abide the duly adopted Proposition 39 regulations.  The Supreme Court accepted that the case for review.

The argument in the case was one-sided. The attorney for the Association began the argument, and handled it with aplomb. He received some tough questions — primarily from Associate Justice Liu — concerning some specifics about the regulations.  It was clear that he had prepared well and knew how to reconcile specific provisions.  For example, should classroom space dedicated to adult learning classrooms in traditional public schools be counted by school districts when determining a charter school’s facilities request?  Yes, answered the attorney, so long as those classrooms have been specifically funded by certain funds anticipated by the regulations. [If the regulations specifically contemplate excluding certain adult classroom space, it necessary implies they do not  exclude classroom space that was not funded in that manner.]

The fireworks began when the attorney for LAUSD began his argument. His “well-rehearsed” opening had him saying that this case involved the “right of citizenship” enjoyed by all students.  However, as he soon as he uttered that phrase Associate Justice Corrigan pounced, asking him can’t we first just determine if LAUSD followed the regulations? The argument for LAUSD got worse from there. For example, it came out during oral argument that LAUSD hasn’t even provided evidence that it followed its own interpretation of the regulations.  No one really knows how LAUSD determined “reasonably equivalent” facilities. The LAUSD attorney’s retort to this line of questions was that the regulations don’t require the school district to “show its math.” Needless to say, the justices did not take too kindly to that practiced response.

Essentially LAUSD’s argument boiled down to: “Trust us, we’re LAUSD, and we would never do anything bad.  We don’t have to prove that we followed the regulations, because the regulations don’t say we have to demonstrate that we followed the regulations.  Take our word for it.”  I’m not exaggerating. At one point one Justice — I think it was Justice Corrigan again, but I could be mistaken — asked, “Is there any evidence in this record that LAUSD followed the regulations?”  His response: “There is no evidence that we didn’t either.”

How LAUSD is going to lose this case remains to be seen, but they are going to lose.  Perhaps the Supreme Court will side for the Association and simply say LAUSD has to “show its math.” After all, only one party here has all of the necessary information for determining whether a facilities offer is “reasonably equivalent.”  If school districts are under no obligation to prove how they followed the regulations, there is no reason to ever follow them.  Hopefully, however, the Supreme Court will provide more guidance to the school district. In addition to telling school districts they have to demonstrate compliance with Proposition 39, the Court should explain that the duly adopted regulations are not to be ignored.  Any change must come from the legislature or the Department of Education.

We can expect a decision within 90 days.

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