LEAs May Sue the State Board of Education for Failure to Follow State Law When Approving “Statewide” Charter Schools

August 2010

In California School Boards Association v. State Board of Education (2010 WL 2890477 (Cal.App. 1 Dist.), the California Court of Appeal found that the State Board of Education failed to satisfy a “two-step analysis” in its consideration of a charter from Aspire Public Schools, Inc.  The Court concluded that the plain language of Education Code section 47605.8 requires the State Board to find, before approving a statewide charter, that (1) the instructional services will provide a statewide benefit; and (2) the benefit cannot be provided under local charters approved by a school district or county office of education.

In January 2007, the State Board considered a statewide charter petition submitted by Aspire, a nonprofit organization that was already operating seventeen charter schools around that state, chartered by seven different school districts.  Aspire’s charter was approved by the State Board with conditions, including a requirement that a memorandum of understanding would be executed to govern specific operational details.  The California School Boards Association filed a lawsuit challenging the State Board’s approval of Aspire’s charter and failure to implement the conditions of approval.

The Court reviewed the State Board’s actions to determine whether it acted in a manner that was arbitrary, capricious, or entirely lacking in evidentiary support.  In analyzing section 47605.8, the Court found that there was no dispute that the State Board satisfied the first prong; it appropriately made a finding that Aspire’s charter application showed that its instructional services would provide a statewide benefit.  However, with respect to the second prong, the Court found that the State Board did not have before it any evidence on whether the benefit could be provided under local charters.  The Court explained, “The State Board did not discuss or consider that question, and, in fact, two members of the State Board objected to the vote on Aspire’s petition precisely because there was nothing before the State Board to support a finding that Aspire could not achieve its ‘statewide benefit’ under local charters.”  It should be noted that in September of 2007, the Legislature amended section 47605.8(b) to clarify that the State Board must make this finding, based on substantial evidence, before it approves a statewide charter.

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F3 NewsFlash prepared by Melanie Petersen and Lyndsy Rutherford.
Melanie is a partner in the F3 San Marcos office.
Lyndsy is an associate in the F3 Los Angeles office.

This F3 NewsFlash is a summary only and not legal advice.  We recommend that you consult with legal counsel to determine how this new law may apply to your specific facts and circumstances.  Information on a free NewsFlash subscription can be found at www.fagenfriedman.com.

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