BILL ANALYSIS �
SB 172
Page 1
Date of Hearing: June 13, 2012
ASSEMBLY COMMITTEE ON EDUCATION
Julia Brownley, Chair
SB 172 (Huff) - As Amended: June 6, 2012
SENATE VOTE : 35-0
SUBJECT : School districts: Open Enrollment Act.
SUMMARY : Modifies the Open Enrollment Act by changing the term
"low-achieving school" to "enrollment opportunities school;"
and, changes the application deadline for a parent to transfer
their child to another school from January 1 to January 5.
EXISTING STATE LAW :
1)Open Enrollment Act : The Open Enrollment program (OE) allows
any pupil enrolled in one of 1000 schools identified by the
Superintendent of Public Instruction (SPI) as low achieving to
enroll in a higher performing school anywhere in the state.
The list of 1000 schools is established by ranking schools
based on the academic performance index (API), making the
following exclusions from the list: county community schools,
community day schools, juvenile court schools, charter
schools, any school that would make a school district have
more than 10% of its schools in the program, and any school
that would disrupt the balance of elementary, middle and high
schools ranked in decile one based on the API in the 2008-09
school year. Districts of enrollment (DOE) are required to
ensure that communications to parents do not target individual
families or neighborhoods. DOEs are authorized to adopt
written standards for acceptance and rejection of
applications, including consideration of adverse financial
impact pupil transfers may have on a school district; and,
requires that the standards adopted by the DOE for accepting
or rejecting student transfers not include consideration of a
pupil's family income, or any of the individual
characteristics set forth in Education Code Section 200, and
encourages districts to keep records on the personal
characteristics of students that transfer under this program.
The SPI is required to contract for an independent evaluation
of the program, and provide the final report of the evaluation
to the Legislature, Governor, and state board of education
(SBE) on or before October 1, 2014. (Education Code
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48350-48361)
2)Open Enrollment Regulations : The State Board of Education
adopted regulations which specify the following with regard to
the process for identifying schools eligible for the OE
program:
a) Schools with less than 100 valid scores reported on the
2009 Base API data file are excluded.
b) Because of the required ratio, 687 of the 1,000 on list
are elementary schools, 165 are middle schools, and 148 are
high schools.
c) Creating the list starts with the identification of the
elementary middle and high schools that have the lowest API
scores within the criteria described above. This list is
ranked from lowest API score to highest API score. When a
school district on the list has reached its 10% cap, the
district's schools with the highest API scores are dropped
from the list until the district has no more than 10% of
its schools on the list. Schools with the next lowest API
scores remaining in the pool are then added to create the
next list of 1,000 schools that maintains the required
ratio of schools. This process continues until a final
list of 1,000 schools is achieved that both maintains the
ratio of 68.7% elementary schools, 16.5% middle schools,
and 14.8% high schools and does not exceed any district's
10% number of schools. Schools that are closed are exempt.
(Title 5 of the California Code of Regulations, � 4701 -
4703)
3)District of Choice : Under the District of Choice (DOC)
program, a school board may declare the district to be a DOC
willing to accept a specified number of inter-district
transfers. The DOC program provides protections against
districts targeting students in specific residential
neighborhoods, on the basis of a child's actual or perceived
academic or athletic performance or any other personal
characteristic. A DOC may reject the transfer of a pupil if
the transfer of that pupil would require the district to
create a new program to serve that pupil, except that a DOC
shall not reject the transfer of a special needs pupil,
including an individual with exceptional needs, and an English
learner. DOCs are required to collect specific data about the
students who transfer to their district and report that data
to surrounding districts and to the state. This data is
required to be reported annually to the Legislature and the
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Governor, and the Legislative Analyst's Office (LAO) is
required to prepare a comprehensive evaluation of the program.
(Education Code 48300-48316)
EXISTING FEDERAL LAW :
1)Requires schools identified under program improvement (PI) to
provide pupils the option to transfer to another school within
the district that has not been identified for PI. Requires
school districts, where schools within the district have been
identified for PI, to provide transportation for pupils who
transfer to other schools within the school district.
2)Requires school districts identified for corrective action to
authorize pupils to transfer from a school operated by the
school district to another higher performing school operated
by another school district, and provide transportation for the
pupil to that school. The obligation of the school district
to provide transportation for the pupil ends at the end of the
school year if a school district determines that the school
from which a pupil transferred is no longer identified for PI.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS : This bill makes changes to the Open Enrollment
program by changing the term "low-achieving school" to
"enrollment opportunities school" and, changes the application
deadline for a parent to transfer their child from January 1 to
January 5. The bill does not make any substantive changes to
the OE program.
According to the author, the Open Enrollment Act requires the
Department of Education to create a list of 1,000 schools that
are required to offer parents the option to transfer to any other
school of their choice - even schools outside of their resident
school district. Schools on the list of 1,000 are currently
deemed "low-achieving." Some school districts have raised
concerns that the "low-achieving" label may be discouraging. The
Open Enrollment Act was never intended to be a punitive program.
Instead, it was intended to be an opportunity for parents to
transfer to a better performing school. School choice, not
subjective labels, is the underlying purpose of the Open
Enrollment Act. SB 172 would make a technical change to the Open
Enrollment Act by changing the name of "low-achieving" schools to
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a less judgmental and more benign title of "enrollment
opportunities" school.
Some school districts have raised concerns about being identified
as "low achieving," particularly those schools with API scores in
the 700's and above. Many observers would agree that schools with
API scores in the 700's do not deserve to be labeled
low-achieving. Most school districts that have concerns about the
OE program, however, are more concerned about the specific policy
elements of the OE program and how those policies are impacting
their districts on the local level, and districts are not as
concerned with the label that schools are given. With this in
mind, the committee should consider whether changing some of the
larger policy concerns with the OE program should be a higher
priority than merely changing the name given to the schools
identified for the program. Below is a history of the larger
policy concerns that have been raised about the OE program by
this committee.
Ongoing Open Enrollment Program Concerns : When the Assembly
Education Committee heard SB 4 X5 (Romero), which established
the OE program, the following concerns were expressed and
continue to persist:
1)The DOC program, on which the OE program is modeled, includes
several safeguards that are not included in the OE program.
The committee should consider whether to include the same
safeguards in the OE program that exist for the DOC program,
which include:
a) Including a sunset date for the program, so the
Legislature can consider the results of the evaluation and
decide whether to continue the program based on those
results.
b) Specifying explicitly that a district of enrollment may
not reject the transfer of a special needs pupil, and an
English learner.
c) Requiring each district of enrollment to keep records
of: 1) The number of requests granted, denied, or withdrawn
as well as the reasons for the denials; 2) The number of
pupils transferred out of the district; 3) The number of
pupils transferred into the district; and, 4) The race,
ethnicity, gender, self-reported socioeconomic status, and
the school district of residence of each of the pupils
described above.
d) Requiring the information listed above to be reported to
the governing board of the district of enrollment and to
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each school district that is geographically adjacent to the
district of enrollment, the county office of education in
which the district is located, the SPI, and the Department
of Finance (DOF).
e) Requiring the information listed above to be annually
reported to the Legislature and the Governor.
2)It is unclear whether the OE program requires districts of
enrollment to accept any transfers under this program. The
program specifies that a district can create standards for
accepting and rejecting students, and provides protections for
discrimination against individual students, but the program
may not prohibit a school district from rejecting all
transfers under this program. For example, could a district
create a policy that says they will not accept any transfers
and/or could a district create a policy that rejects all
students from a specific district or school?
3)Existing law excludes charter schools from the list of schools
required to participate in the open enrollment program. Of
the 945 schools ranked in decile one based on the API in
2008-09, there were 103 charter schools. This means that 103
of California's lowest achieving charter schools are be
excluded from the open enrollment program and an equal number
of higher achieving traditional public schools are required to
participate in this program. Since charter school pupils who
leave a charter school only have enrollment rights in their
district of residence, this exclusion will limit the
opportunity for charter school students to move to a
higher-performing school if they choose to leave their low
performing (charter) school. There is no clear rationale for
limiting the opportunity for charter school pupils to leave a
low-performing school, and treating charter pupils differently
than non-charter pupils in this respect.
Further, when this committee passed AB 47 (Huffman), the
committee supported the following policy changes to the OE
program. The committee should consider whether these changes
should be included in this bill.
1)Prohibit schools to be on the OE list if the school has an
Academic Performance Index (API) score of 700 or above or if
the school has prior year API growth of 50 points or more.
2)Clarify the means by which the Superintendent of Public
Instruction (SPI) shall calculate the maximum number of
schools that a local educational agency (LEA) may have on the
OE list.
3)Specify that county offices of education (COEs) operating a
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special education program and state special schools shall not
be included on the OE list.
4)Authorize charter schools to be included on the OE list.
5)Specify that a school shall only be identified for the OE
program if the school is identified on the list for two
consecutive years.
6)Specify that a school district of enrollment (DOE) shall not
reject the transfer of an individual with exceptional needs or
an English learner if he or she is randomly selected through a
lottery.
7)Require each DOE to keep transfer records; require the records
to be reported to the governing board of the district of
enrollment, to each school district that is geographically
adjacent to the district of enrollment and to the COE in which
the district is located by May 15 each year; require, by May
15 of every other year, the school district to report the
records to the SPI; and, require the SPI to annually report to
the Legislature and the Governor.
8)Establish a sunset date for the OE program of July 1, 2015,
and repeal the program as of January 1, 2016.
The Senate Education Committee analysis raised the following
valid concerns:
Prior policy discussions on Open Enrollment . The discussions
around the purpose of enacting an Open Enrollment policy was
generally to allow pupils attending low-performing schools, as
specified, to attend schools in a different district and
allowing parents another option beyond the current transfer
policies. As a result, open enrollment had vigorous debate on
the implications for not only the lowest-performing schools, but
also the implications on receiving districts of enrollment.
By changing the name of "low-achieving school" to "open
enrollment school" �"enrollment opportunities school"] (1) the
connection with the original statute is significantly diluted -
no mention of "low-achieving school" will remain in the Act and
a rationale for passage of open enrollment will vanish; and (2)
it may create more confusion to parents and pupils as the name
changes.
Meaningful change? While this measure attempts to change the
labeling of schools that are affected by the Open Enrollment
Act, it does not provide a policy change to the eligibility
criteria used to identify the 1,000 schools impacted by the Act.
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Schools that object to "low-achieving "status have
administrative recourse, under Education Code section 33050,
schools can request a waiver from the Open Enrollment Act.
Since September 2010, 135 schools identified on the open
enrollment list have requested a waiver from the State Board of
Education, which would allow them to be removed from this list.
According to the California Department of Education, 134 waivers
were deemed approved and one waiver that did not garner the
required votes for passage, but will heard at the SBE July 2012
board meeting.
If there is a concern the eligibility criteria for identifying
"low-achieving" schools is unwarranted or punitive or that some
schools are being mislabeled, this bill does nothing to create a
meaningful policy change.
Arguments in Support : Valle Lindo School District supports the
bill and states, "Our school district has received the benefits
of the Open Enrollment Act, as we continue to welcome students
from low-achieving schools and school districts to receive their
education in our district. Because "school choice" (not
subjective labels), is the underlying purpose of the Open
Enrollment Act, SB 172 would not minimize the impact of the Open
Enrollment process nor diminish the effect of "school choice."
EdVoice supports the bill and states, "The bill would make clear
to parents and schools that the technical mechanism and ultimate
purpose of establishing a list of schools is to identify
eligible applicants and provide additional voluntary public
school options for those students. The list is not purposed as
a mechanism to dull the reputation of the educational programs
in the home schools in which the eligible student is or would
otherwise be mandatorily assigned.
Arguments in Opposition : The Association of California School
Administrators (ACSA) opposes the bill and states, "SB 172 is
intended to make schools districts feel better about themselves
if the name of the program is changed (but the formula will not
change) so when they notify parents they can leave the district
for any district in the state, it will be just because they got
caught up in a formula or "lottery" of sorts and are not really
failing. Candidly this bill does little if anything to alleviate
the frustration of superintendents statewide or address the
fatal flaws of this program. The real energy in our view should
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be to study the outcomes of this program and either fix the
flaws or sunset the program. Because of the flaws of SB 172
many school districts have sought waiver relief from the State
Board to be taken off the list. To the disappointment and dismay
of many superintendents considerable time, money and energy to
fight for the right to be off the Open Enrollment List, Senator
Huff and his staff have come before the State Board to oppose
such relief even when the schools are high performing. Why is
that the case if there is interest in removing the stigma? Our
biggest concern with the intention of SB 172 is once the name
changes than the State Board will not consider waivers."
The Small School Districts'' Association (SSDA) opposes the bill
and states, SB 172 would redefine the schools that are
identified as low-performing to be open enrollment schools
without changing the flawed methodology for determining which
schools are subject to the current law provisions. SSDA opposes
current law and, therefore, opposes SB 172 which exacerbates the
discriminating current law effect on small school districts.
Current law discriminates against small school districts with
high Academic Performance Index results. This bill would do
nothing to change that discrimination. Current law also
discriminates against low-income families who cannot afford
transportation from one school district to another school
district. It effectively helps high achieving students in high
income families compared to low-achieving students with hard
working but low-income parents. Current law does not appear to
help the students most in need of help.
Previous Legislation : AB 47 (Huffman), from 2011, among other
things, would have modified the Open Enrollment Act to exempt
schools with Academic Performance (API) scores of at least 700,
schools with at least 50 points growth in the prior year, and
certain special education schools. This measure was vetoed with
the following message:
This bill modifies the eligibility criteria used to
identify schools under the Open Enrollment Act which was
enacted last year to provide parents with enrollment
options in 1000 public schools that fail to meet defined
student academic achievement criteria.
The bill increases the threshold for identifying open
enrollment schools to exclude schools that score above 700
on the Academic Performance Index for two consecutive
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years. The California Department of Education estimates
that based on the revised criteria only 150 schools would
be included in the new list of schools. I believe that the
proposed changes go too far and would undermine the intent
of the original law.
The State Board of Education has administrative authority
to exempt schools from the Open Enrollment Act that
document strong student academic achievement. I expect the
Board will thoughtfully exercise this authority and believe
we should carefully review the implementation effects of
the program before making significant changes.
SB 4 X5 (Romero) from 2010, created the Open Enrollment program,
which allows any pupil enrolled in one of 1000 schools
identified by the SPI as low achieving to enroll in a higher
performing school anywhere in the state, as specified.
SB 266 (Huff) from 2009 would have enacted the Open Enrollment
Act for the purpose of allowing pupils attending low-performing
schools, as specified, to attend schools in a different
district. This bill was held in Senate Appropriations
Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
American Civil Liberties Union
EdVoice
Valle Lindo School District
Opposition
Association of California School Administrators
Small School Districts' Association
Analysis Prepared by : Chelsea Kelley / ED. / (916) 319-2087