California Court of Appeal Upholds Validity of All 2008 Amendments to Proposition 39 Charter School Facilities Regulations

January 2011

In 2008 the California School Boards Association, the Education Legal Alliance, the Association of California School Administrators, and the California Association of School Business Officials, collectively filed a suit against the California State Board of Education, the State Superintendent of Public Instruction, and the California Department of Education, seeking to vacate and set aside 15 provisions from the amended Proposition 39 charter school facilities regulations which became effective for requests submitted during the 2009-2010 school year.  The California Charter Schools Association intervened in the action in support of the State defendants.  The trial court upheld ten of the challenged provisions but ordered the State defendants to vacate five provisions related to conversion charter schools.  Appeals were filed by both sides.

On December 20, 2010, the decision in California School Boards Association et al. v. State Board of Education (2010) --- Cal.Rptr.3d ----, 2010 WL 5486084 was issued by the Third District Court of Appeals.  The Court of Appeals upheld the validity of all the 2008 amendments determining that the regulatory changes were within the authority of the State Board.  Since the majority of the regulatory provisions have been in practice since the 2009-2010, this NewsFlash will discuss portions of Title 5, Calif. Code Regs. Section 11969.3 related to conversion charter schools that were originally invalidated by the trial court, but have been upheld.

A Conversion Charter School Does Not Have an Unqualified Right to Remain at its Existing School Site After Its First Year of Operation.

Pursuant to the Proposition 39 regulations, a conversion charter school (a charter school that is created from converting an existing district school to a charter school) is tied to its conversion school site for the first year of operation and the school district presumptively satisfies the reasonably equivalent requirement by providing the charter school with those facilities.  Now, pursuant to validated Section 11969.3(d)(1), a conversion charter school that was located at its original existing schoolsite for its first year of operation is also entitled to remain at that site for its second year of operation and each year thereafter, upon the annual submission of a Proposition 39 facilities request. 

However, as the court recognized, this amendment does not take away the ability of a school district to move a charter school from their existing site when necessary, nor does it give a charter school the right to veto any attempt to relocate the charter school to another site.  The court found that the school district is not prevented from seeking a waiver of the regulation from the State Board of Education.  This conclusion was supported by the fact that Education Code section 47614, which recognizes that a school district may move a charter school when necessary, refers to charter schools without distinguishing between start-ups and conversions.

A School District Must Obtain a State Board of Education Waiver Before it May Change A Conversion Charter School’s Attendance Area.

The Court of Appeal confirmed the validity of Section 11969.3(d)(2), which prohibits a school district from changing a conversion charter school’s attendance area without first obtaining a waiver from the State Board of Education.  In reaching its decision, the court noted that the Education Code obligates a conversion charter school to give admission preference to students who reside within the former attendance area of the converted school that the former attendance area for purposes of the admission preference does not change.  As stated by the court, should a school district change a charter school’s current attendance area or its current neighborhood by relocating the charter school or redrawing district school boundaries, it could result in a decline in enrollment and reduction of in-district students at the charter school.  The court determined that the State Board reasonably concluded that the potential for abuse, rather than appropriate competition between the district and charter school, justified requiring the district to obtain a waiver before a conversion charter school’s attendance area can be changed. 

If you have any questions regarding any of the Proposition 39 amendments or the Court of Appeals decision and how the decision may impact your district, please call one of our five offices.

F3 NewsFlash prepared by Melanie A. Petersen and Bill Schuetz
Melanie is a partner in the F3 San Marcos office.
Bill is an associate in the F3 Sacramento 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 case 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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© 2011 Fagen Friedman & Fulfrost, LLP

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