Task Force Report Outlines Recommendations for Charter School Reform

06.13.2019

Early this year, Governor Newsom requested State Superintendent of Public Instruction (“SSPI”) Tony Thurmond convene the California Charter School Policy Task Force (“Task Force”) to analyze the fiscal impact of charter schools on traditional public schools as well as inconsistencies in the manner in which charter schools are authorized in California.  The Task Force’s determinations and recommendations have been greatly anticipated, particularly given the heavily debated package of charter school reform bills the Legislature has taken up this year.  On June 6, 2019, the SSPI submitted the Task Force’s report (“Report”).  The Report made multiple unanimous recommendations, and several other proposals were supported by a majority of the Task Force members.

Recommendations 

The Report proposed changes to the charter petition review process, providing charter authorizers more discretion to consider community impacts when acting on new charter school petitions.  The Task Force unanimously recommended that potential authorizers be allowed to consider the following three factors, which are interconnected, when reviewing a charter petition:  (1) Charter school saturation, in terms of both the number of schools and overall enrollment; (2) academic outcomes and offerings from both traditional and charter schools; and (3) a statement of need based on the academic outcomes and offerings.  The Task Force unanimously recommended that the timeline for approving or denying a new charter school be extended from 60 days to 90 days, but did not recommend changing the current timeline for renewals.  A majority of the task force also recommended eliminating outdated references to the Academic Performance Index.

The Task Force unanimously recommended the California Department of Education (“CDE”), as staff to the State Board of Education (“SBE”), no longer be responsible for oversight of SBE-authorized charters.  The Task Force determined the burden on CDE staff of such oversight responsibility was too high, particularly considering that only three staff members are responsible for oversight of 39 SBE-approved schools, and are further constrained by geographic location.  If implemented, these recommendations would limit the State’s role in charter schools while increasing the role and authority of districts.  A majority of Task Force members supported eliminating appeals to the SBE of charters that are denied by a district or county board.  A majority also supported limiting appeals to a county board to only situations in which the school district allegedly made an “error” in denying the charter.

Currently, loss of ADA to a charter school is exempt from the declining district enrollment calculation, so school districts receive no support when they lose ADA to a charter school.  The Task Force recognized that the revenue lost when a student leaves a district to attend a charter school is the same as results from any other loss of ADA, so should be treated the same.  Therefore, the Report includes a unanimous recommendation that ADA lost to a charter school should be treated in the same manner as other lost ADA in the declining district enrollment calculation to provide a “soft landing” for districts as a layer of fiscal support.  This recommendation has a significant price tag as, based on self-reported 2018-2019 data from the 10 largest school districts in the state, the cost is estimated at over $96,000,000.  In considering the concerns raised by authorizers regarding the fiscal impact of charter schools on authorizing districts in which they operate, the majority also recommended that authorizers have the flexibility to consider fiscal impact in deciding whether to authorize a new charter.  This would allow the authorizer to evaluate the impact of the proposed charter school on the entirety of the local educational system. 

The Task Force also attempted to address concerns raised by recent misconduct relating to charter schools.  A majority of the Task Force supported a one-year moratorium on the establishment of new virtual charter schools.  While acknowledging the potential of virtual programs, the Task Force noted concerns that virtual charter programs operate without the appropriate academic rigor and oversight, citing to the Bureau of State Audits’ review of the California Virtual Academy as an example of the problems.  The contemplated moratorium would be used for virtual school advocates to study the issues and recommend solutions to ensure students receive appropriate full-time instruction under the supervision of certificated teachers.  The majority also supported a ban on the authorization of charter schools that operate outside of the chartering authority’s boundaries.  In addition to increasing local control and accountability, this recommendation would limit the practice of authorizers using oversight fees as revenue streams while incurring only limited expenses associated with charter school oversight.

The Task Force unanimously agreed that there is a need for clear, reasonable, and rigorous standards for oversight to ensure fair evaluations statewide.  This includes a recommendation to establish a statewide entity that would develop these standards and train charter authorizers on the standards.  Similarly, the majority favored the State establishing clear guidelines, including rubrics or handbooks, for use by authorizers and by charter applicants in developing and evaluating charter petitions.  Charters currently address the mandatory charter elements in varying levels of detail and specificity, so clear guidelines would standardize the quality of new charter schools.

The Task Force considered plans for managing growth of charter schools.  One proposal that was considered suggested limitation on charter growth in Los Angeles Unified and Oakland Unified for a set period.  The majority of the Task Force rejected the idea of managing growth in only a select number of districts for a limited period, and instead determined that reasonable growth standards should be consistent statewide.  The Task Force members could not agree on the appropriate conditions to limit growth.  No agreement was reached and the Task Force did not vote on a managed growth plan.

A majority of the Task Force opposed, albeit by the “narrowest of margins,” a change to the “core language” of Education Code Section 47605(b).  That provision currently states, in relevant part, that “the governing board of the school district shall grant a charter school if it is satisfied that granting the charter is consistent with sound educational practice.”  This language means that a charter must be approved unless the potential authorizer makes specific findings to deny.  The Task Force considered changing “shall” to “may” in order to provide authorizers more discretion in the charter approval and denial process, but expressed concern about the legal implications of such a change, and the proposal was not approved by a majority. 

The Report noted that the issues surrounding charter schools are complex and require additional review and debate beyond the Task Force’s limited scope and duration.  According to the Report, its recommendations include strategies to respond to some concerns, but there are additional issues to be addressed.

Impact on Charter Authorizers

While some of these recommendations are similar to legislation currently under consideration or recently tabled by the California Legislature, the Task Force’s recommendations do not have any immediate effect or impact on charter schools or their authorizers.  We will all need to wait to see how the Governor and Legislature respond to the Report.  However, the Report provides insight into a possible path to charter reform that the State may follow.  If the State decides to implement some or all of the Task Force Report’s recommendations, school districts may benefit from an increased emphasis on local control and accountability in the charter authorization process, as well as the ability to mitigate the fiscal impact of charter schools on authorizers.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR presentation/publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process.

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