BILL ANALYSIS �
AB 1032
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Date of Hearing: April 17, 2013
ASSEMBLY COMMITTEE ON EDUCATION
Joan Buchanan, Chair
AB 1032 (Gordon) - As Amended: April 9, 2013
SUBJECT : Charter schools: facilities
SUMMARY : Establishes additional guidelines in a school
district's requirement to make school facilities available to
charter schools. Specifically, this bill :
1)Specifies that in exercising its discretion in determining
appropriate facilities to offer to eligible charter schools
operating within a school district, a school district shall
give the same degree of consideration to pupils attending
schools operated by the school district as pupils attending
charter schools. To ensure that facilities are shared fairly
among all public school pupils, including those in charter
schools, in allocating reasonably equivalent facilities to
charter schools operating within the school district, a school
district shall consider the following:
a) The impact of the facilities offer on pupils attending
schools operated by the school district and the in-district
pupils attending, or proposed to attend, the charter
school. In considering this impact, the school district
shall do the following:
i) Seek to minimize disruption to the educational
program of pupils attending schools operated by the
school district and the in-district students attending,
or proposed to attend, the charter school.
ii) Not unnecessarily move pupils attending district
schools from their current schools.
b) The useable space at the comparison school sites
operated by the school district as well as all useable
space at facilities owned or leased by the charter school
when considering reasonably equivalent facilities to be
allocated to a charter school. For purposes of determining
conditions reasonably equivalent for the charter school's
in-district students, useable space shall not include space
that cannot be used for educational purposes due to safety
concerns, topography, lack of improvement, or other
conditions. The school district shall also exclude from its
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consideration space that is not used by the school district
for instructional purposes and space that is used solely by
private organizations to provide services with nonschool
district resources.
2)Specifies that a school district is not required to provide
additional facilities to a charter school if the charter
school owns or leases facilities for the year for which it
seeks allocation of facilities and the owned or leased
facilities are able to accommodate in-district students in
conditions reasonably equivalent to those in which the
in-district students would be accommodated.
3)Specifies that in evaluating a facilities request or
formulating a facilities offer, arithmetical precision is not
required. Instead, the school district shall use reasonable
good faith methods to evaluate a facility request or formulate
a facilities offer.
4)Provides that the Legislature finds and declares that this
bill does not change the scope or effect of, and furthers the
purposes of, the Smaller Classes, Safer Schools, and Financial
Accountability Act because it ensures that public school
facilities are shared fairly among all public school pupils.
EXISTING LAW :
1)Expresses the intent of the people that public school
facilities should be shared fairly among all public school
pupils, including those in charter schools. (Education Code
(EC) Section 47614)
2)Requires each school district to make available, to each
charter school operating in the school district, facilities
sufficient for the charter school to accommodate all of the
charter school's in-district students in conditions reasonably
equivalent to those in which the students would be
accommodated if they were attending other public schools of
the district. Facilities provided shall be contiguous,
furnished, and equipped, and shall remain the property of the
school district. The school district shall make reasonable
efforts to provide the charter school with facilities near to
where the charter school wishes to locate, and shall not move
the charter school unnecessarily. (EC 47614)
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3)Specifies that each year each charter school desiring
facilities from a school district in which it is operating
shall provide the school district with a reasonable projection
of the charter school's average daily classroom attendance by
in-district students for the following year. The district
shall allocate facilities to the charter school for that
following year based upon this projection. If the charter
school, during that following year, generates less average
daily classroom attendance by in-district students than it
projected, the charter school shall reimburse the district for
the over-allocated space at rates to be set by the State Board
of Education (SBE). (EC 47614)
4)Provides that facilities requests based upon projections of
fewer than 80 units of average daily classroom attendance for
the year may be denied by the school district. (EC 47614)
5)Defines "operating," to mean either currently providing public
education to in-district students, or having identified at
least 80 in-district students who are meaningfully interested
in enrolling in the charter school for the following year.
(EC 47614)
FISCAL EFFECT : Unknown
COMMENTS : In 2000, voters passed Proposition 39, which gave
districts the opportunity to seek approval of a local education
bond based on a 55% vote rather than a 2/3 vote under specified
conditions. The initiative also enacted provisions in the
Education Code to require school districts to make school
facilities available to charter schools operating in the
district. Facilities are required to be reasonably equivalent
to facilities pupils would receive if the pupils were to attend
district schools. School districts are required to make
reasonable efforts to provide the charter school with facilities
near where the charter school wishes to be located. School
districts may not move the charter school unnecessarily.
The statutory provisions are not detailed, and even with
regulations adopted by the State Board of Education (SBE), a
number of lawsuits have been filed throughout the state. This
bill is sponsored by the California School Boards Association
(CSBA) in an attempt to clarify some of the provisions in
statute. This bill is based on various court decisions in order
to create standardized policies throughout the state.
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The author states, "Frequently, school districts and charter
schools spend large amounts of time and money in legal disputes
over the determination of "reasonably equivalent" conditions.
Protracted litigation resulting from school facilities disputes
does not benefit students in either a charter or district
school. While court cases have attempted to strike a fair
balance between the needs of all public school students (whether
charter or district), existing law does not provide enough
clarity. Different appellate districts disagree and interpret
the law differently. Explicitly stating that the school
district needs to give the same degree of consideration to
students attending district operated schools as students
attending charter schools (for purposes of determining
reasonably equivalent facilities) will provide much needed
clarity and reduce the various interpretations of law."
Process for requesting facilities . The provisions enacted by
Proposition 39 specify that charter schools interested in
seeking district facilities must provide the school district
with reasonable projection of the charter school's average daily
classroom attendance by in-district students for the following
year. Regulations specify that the request must be made in
writing on or prior to November 1 of the preceding year, and
among others, the request must include information regarding the
district school site and/or general geographical area in which
the charter school wishes to locate and information regarding
the charter school's educational program relevant to facility
needs.
Equal considerations . The author states that while the statute
expresses the intent to ensure that facilities are shared fairly
by in-district and charter pupils, the statute directs schools
districts not to move the charter school unnecessarily from
where it wishes to locate without regard to the impact on
district students. This has resulted in district students being
displaced in order to provide charter schools with facilities.
For example, last year, Capistrano Unified School District
closed an elementary school, displacing over 200 students, in
order to provide the schoolsite to a charter school. In Los
Angeles, a charter school sued the district because the district
did not allocate space at the charter school's preferred site
(Los Angeles Intern. Charter High School v. Los Angeles Unified
School District). In 2012, an appellate court found the
following: "A holding that the District must provide facilities
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a charter school requests, on demand and without regard to
overcrowding or the impact on other public school students,
would tip the balance too far in favor of the charter
school?..The District acted well within the bounds of its
discretion and in compliance with the writ's directives when it
offered LAICHS space . . . to avoid displacing hundreds of other
students from their neighborhood schools."
This bill specifies that when determining appropriate facilities
to offer to charter schools, school districts shall give the
same level of considerations to pupils attending district
schools and pupils attending charter schools. This bill also
requires school districts, in allocating reasonably equivalent
facilities, to seek to minimize disruption of the educational
program of pupils attending schools operated by the school
district and the in-district students attending, or proposing to
attend, the charter school; and not unnecessarily move pupils
attending district school from their current schools.
Reasonably equivalent . State regulations specify that the
standard for determining whether facilities are sufficient to
accommodate charter school students in conditions reasonably
equivalent to those received by district pupils is based on a
comparison group of district schools with similar grade levels
as those offered by the charter school. The regulations also
require a school district to provide a charter school with the
same ratio of teaching station (classrooms) to average daily
attendance as those provided to district students attending
comparison group schools. The school district shall also
allocate specialized classroom space (e.g., science
laboratories), and/or provide access to non-teaching station
space (e.g., kitchen, multi-purpose room, etc.) commensurate
with those provided by the comparison group.
This bill clarifies that useable space shall not include space
that cannot be used for educational purposes due to safety
concerns, topography, lack of improvement or other conditions.
The bill directs a school district to exclude from its
consideration space that is not used by the school district for
instructional purposes and space that is used by private
organizations to provide services with non-school district
resources. According to the sponsor, "litigation frequently
arises regarding the process for allocating space to be counted
when evaluating space provided to district students. For
example, if a school district is required to count space that is
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not useable as part of the square footage of the site, it must
then allocate the same number of square feet to a charter
school. This results in a skewed calculation such that the
charter school has greater right to useable space than that
afforded district students."
Excluding space that is not used for "instructional" purposes
may be interpreted to exclude non-teaching station space whether
or not they are being used. Non-teaching stations are a
required facility component under state regulations. Staff
recommends an amendment to clarify that space that is not used
as classrooms, specialized classrooms or non-teaching space
shall not be considered.
This bill requires a school district to consider the useable
space at the comparison school site as well as all useable space
at facilities owned or leased by the charter school. The author
and sponsor state that this provision is to address situations
where a charter school that has facilities seeks facilities from
the district. In Los Altos, even though the district allowed a
charter school to build a multipurpose room on district
property, the court concluded in Bullis Charter School v. Los
Altos School District (2011) that the district was not allowed
to consider the multipurpose room as space provided by the
district and was required to provide additional space or access
to another multi-purpose room. The Court of Appeal found that
neither the "statute or the regulations address the possibility
of such a windfall to a charter school?."
This bill specifies that a school district is not required to
provide additional facilities to a charter school if the charter
school owns or leases facilities for the year for which it seeks
allocation of facilities. The author states that when
Proposition 39 was designed, funding was not available for
charter school facilities. Since 2000, the Charter School
Facility Grant Program, which provides funds for charter schools
located in low-income area to assist in rent and lease payments,
and the Charter School Facilities Program under the state
education bond program, which provides funds to enable charter
schools to construct or modernize charter school facilities,
have become available.
The bill specifies that arithmetical precision is not required
in evaluating a facilities request or formulating a facilities
offer. Instead, the district is required to use reasonable good
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faith methods. Several court cases have concluded that
Proposition 39 does not require school districts or charters
schools to use fixed, mathematical standards (Sequoia Union High
School District v. Aurora Charter High School (2003);
Environmental Charter High School v. Centinela Valley Union High
School District (2004); Ridgecrest Charter School v. Sierra
Sands Unified School District (2005)). The sponsor cites, as an
example, the Environmental Charter High School v. Centinela
Valley Union High School District lawsuit where the court
recognized that the court's task was not to hold the district's
action up to a detailed set of quantitative criteria, but was to
"ensure that [the school district] has adequately considered all
relevant factors, and has demonstrated a rational connection
between those factors, the choice made, and the purposes of the
enabling statute." However, the court in the Bullis Charter
School v. Los Altos School District decision supported the use
of surveyors, architects, aerial photography, and other
professionals based on mathematics, physics and engineering to
gather measurements. The cost for both the charter school and
district to hire these specialists were exorbitant. Moreover,
the sponsor states that these "measurements are subject to
debate and litigation. Codifying the precedent that
arithmetical precision is not required protects public
resources, avoids unnecessary litigation, and furthers the
interests of students attending both district operated schools
and charter schools."
The California Charter Schools Association Advocates opposes the
bill and states, "Since 2000, considerable regulatory and case
law has grown up around Proposition 39 to provide clear
direction to school districts and charter schools about what is
a reasonably equivalent facility. AB 1032 undercuts a
substantial amount of current law and perpetuates myths about
the impact of charter school facility needs on traditional
schools. Unfortunately, AB 1032 reverses the thrust of
Proposition 39."
REGISTERED SUPPORT / OPPOSITION :
Support
California School Boards Association (sponsor)
California Association of School Business Officials
California School Employees Association
Coalition for Adequate School Housing
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Riverside County Superintendent of Schools
Small School Districts' Association
Opposition
California Charter Schools Association Advocates
EdVoice
Analysis Prepared by : Sophia Kwong Kim / ED. / (916) 319-2087