November 13, 2013

The survival of California charter schools is at stake

By Joshua P. Thompson Senior Attorney

Yesterday, PLF filed this brief in California Charter Schools Association v. Los Angeles Unified School District.  It is impossible to overstate how important this case is for the future of charter schools in California.  The issue in this case is whether a school district is free to devise its own methods for complying with the voter-approved Proposition 39, or, conversely, whether the school district must follow the strict language of the Proposition 39 implementing regulations.

Proposition 39 was approved by California voters back in 2000.  It requires school districts to provide charter schools within their boundaries with facilities that are “reasonably equivalent” to the facilities that the school district provides to district schools.  Because “reasonably equivalent” is somewhat vague and ambiguous, Proposition 39 also directed the State Board of Education to design regulations detailing a step-by-step process for school districts to follow when offering “reasonably equivalent” facilities.  After two years of receiving comments from school districts, charter schools, parents, policy wonks, and education experts, the State Board proposed specific, step-by-step regulations.  Those regulations were adopted by the Department of Education in 2002.

The entrenched education establishment, however, was not pleased with having to share facilities.  School districts defied the voters, and regularly offered charter schools facilities that were non-compliant with Proposition 39.  The lawsuits began almost immediately.  However, in decision after decision, the courts struck down the stonewalling tactics of school districts.  Charter schools won a number of important precedents that clearly established their right to a fair share of public facilities.

Los Angeles Unified School District (LAUSD) was perhaps the worst violator of Proposition 39, and it lost a number of lawsuits.  Yet, it was still unwilling to fairly share public facilities with public charter schools kids.  LAUSD continued to defy Proposition 39; it refused to make Proposition 39 offers, and even broke a Settlement Agreement it entered into with charter schools.  So, in 2010, the California Charter School Association brought a lawsuit asking the court to require LAUSD to follow Proposition 39 and offer it “reasonably equivalent” facilities.  And that was how things stood when LAUSD  swung for the fences.

LAUSD argued that it didn’t have to follow the step-by-step regulations that were devised by the State Board of Education.  Instead, it argued that it could comply with Proposition 39 through “norming ratios,” a method that can be found nowhere in Proposition 39 or its implementing regulations.  LAUSD did this because by using “norming ratios,” the charter school kids would be entitled to significantly less space than if LAUSD had to follow the letter of the regulations.  While LAUSD’s ridiculous argument was rejected by the trial court, the court of appeal upheld LAUSD’s practice!  In an opinion surprisingly devoid of any legal analysis, the court of appeal held that “anomalous results” would ensue if LAUSD had to follow the regulations.  Fortunately, the charter schools appealed that decision to the California Supreme Court, and the high court agreed to take up the case.  Briefing is now complete before the Supreme Court — PLF filed its brief in the court yesterday — and we are awaiting a hearing date.

The sad truth behind this case is that traditional district schools in Los Angeles are failing, whereas the charter charter schools within the district are thriving. Whereas the former continues to lose students, the latter has long waiting lists of students who want to gain admittance.  Because of the decrease in traditional district students, LAUSD has had to restrict the class sizes and space that it offers to its traditional students.  But because LAUSD has all this extra space, the Proposition 39 regulations entitle the charter school kids to a greater share of the public facilities.   While LAUSD’s tactics are designed to stave off the death of its failing schools, it’s the students who are suffering.  By refusing to follow the regulations, charter schools have inadequate space, and cannot expand to accommodate the increasing number of students that want to be admitted.

The bigger issue in this case, however, extends beyond Los Angeles.  As school districts have shown time and time again, they do not like Proposition 39, and will try anything to delay competition with the charter schools.  If those schools districts are free to devise their own methods of complying with Proposition 39, methods that do not have to be tied to the regulations, charter schools across the state will suffer.  The stakes are too high to allow that to happen.  Charter schools invigorate public schools through choice and competition.  The voters recognized this when they adopted Proposition 39.  Now, it’s up to the California Supreme Court to ensure that charter school students are treated fairly.

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