Governor Newsom Signs New Bills Signaling Steps Toward Charter School Reform

10.03.2019

On October 3, 2019, Governor Newsom signed Assembly Bill 1505 (O’Donnell), the most ambitious of the anticipated changes to the Charter Schools Act, amending requirements related to charter petitions and renewals.  Governor Newsom also signed Assembly Bill 1507 (Smith) impacting the “location” requirements applicable to charter schools.

Background

The Charter Schools Act of 1992 authorizes the establishment and operation of charter schools.  Existing law describes the process and procedure for submission of a charter petition, review of a charter petition, decision-making regarding granting and denying petitions and renewals, and appeals to a county board of education (“COE”) or the State Board of Education (“SBE”), as well as specifying requirements and limitations on where charter schools may be located. 

AB 1505 changes many of these requirements and provides additional guidance as districts, COEs and the SBE consider charter petitions and appeals.  In addition, this bill implements a moratorium on the establishment of new nonclassroom-based instruction charter schools during the period from January 1, 2020, through January 1, 2022.  Most of the changes implemented by AB 1505 do not become operative until July 1, 2020.  AB 1507, effective January 1, 2020, changes both the geographic limitations and the procedures for locating charter schools.

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Changes to Education Code Sections 47605 and 47605.4 Regarding Petitions

The changes to the laws governing charter petitions are multiple and significant.  They include, but are not limited to, the following notable terms:

• Subsection 47605(a)(4): When a charter school proposes to expand operation to additional sites or grade levels, this expansion is considered a material revision.
• Subsection 47605(b): A district now has 60 days to hold a public hearing to consider a new petition, and then has 90 days to make a decision. Thus, districts now have additional time to complete thorough reviews of charter petitions. Staff recommendations and findings must now be made public at least 15 days before the public hearing/meeting when the Board will either grant or deny the charter.  The district must permit the petitioners equivalent time to present evidence and testimony to respond to the staff recommendations and findings.  The timelines for COE action have not changed, but they too must post the recommendations and findings 15 days prior to action and provide equivalent time to present evidence and testimony to respond to staff recommendations and findings.
• Subsection 47605(a) now also limits the ability of charter schools to operate at a location outside of the boundaries of the authorizing district.
  • New law eliminates prior provisions permitting a charter school to locate outside the boundaries of the authorizing district because it was unable to locate a single site or facility to house the charter school in the district in the area where it desired to locate, or when a temporary site is needed during construction. Charter schools must be located within the boundaries of the authorizing district or COE.
  • Pursuant to subsections (a)(5), prior to submitting a renewal, a charter school operating outside of the authorizing district’s boundaries pursuant to these prior exceptions must obtain approval in writing from the district where the school is located or must submit the charter petition to the district where it is located.
• Subsection 47605(b) now defines “receipt” of a charter petition (which starts the timelines for action) as “the day the petitioner submits a petition to the district office, along with a signed certification that the petitioner deems the petition to be complete.”
• Subsection 47605(c) includes additional factors a district may consider in granting or denying a petition. The newly revised law states, “The governing board of the school district shall grant a charter for the operation of a school under this part if it is satisfied that granting the charter is consistent with sound educational practice and with the interests of the community in which the school is proposing to locate.  The governing board of the school district shall consider the academic needs of the pupils the school proposes to serve.”
• Subsection 47605(c) also now includes additional grounds for denying a charter petition. These include:
  • The charter school is demonstrably unlikely to serve the interests of the entire community in which the school is proposing to locate.
    • Analysis of this finding shall include consideration of the fiscal impact of the proposed charter school. A written factual finding under this paragraph shall detail specific facts and circumstances that analyze and consider the following factors:
      • The extent to which the proposed charter school would substantially undermine existing services, academic offerings, or programmatic offerings.
      • Whether the proposed charter school would duplicate a program currently offered within the school district and the existing program has sufficient capacity for the pupils proposed to be served within reasonable proximity to where the charter school intends to locate.
    • The school district is not positioned to absorb the fiscal impact of the proposed charter school, including a rebuttable presumption of denial for districts facing specified fiscal challenges.
  • Subsection 47605(k) modifies the process to appeal a charter denial to a COE or SBE. There is a 30 day timeline to submit appeals and if an appeal contains new or different material terms it is sent back to the district for reconsideration.  Material terms are defined as “signatures, affirmations, disclosures, documents, and descriptions” of the proposed educational programming or required components.  Moreover, this subdivision adds additional procedural requirements for appeals to the SBE, permits the SBE summarily to deny the appeal, and specifies that SBE may only approve a charter on appeal if it determines there was an abuse of discretion in the denial.
  • Subsection 47605(l) now requires all teachers to hold the document required for the teacher’s certificated assignment. Teachers employed by the charter school during the 2019-2020 school year have until July 1, 2025, to obtain the required certificates.  (Section 47605.4(a).)

Changes to Education Code Section 47605.1

AB 1507 amends Education Code section 47605.1 as it relates to the locations of resource centers and sites.  While under the current law, such sites were authorized to operate outside of the authorizer’s boundaries only in adjacent counties, now, charter schools may not establish such centers in other districts or counties.  Instead, a charter school may only establish one resource center or other satellite facility within the authorizing district’s jurisdiction if two conditions are met.  First, the facility is used exclusively for nonclassroom-based independent study and second, the majority of the students enrolled are residents of the county in which the charter school is authorized.  Additional resource centers, meeting spaces, or other satellite facilities can operate within the authorizing district only with the written approval of the authorizing agency.

Exceptions to these new requirements include the approval process described in Education Code section 47605(a), and the newly developed subdivisions (c)(5)(A) and (c)(6) of Education Code section 47605.1.  Charter schools, including countywide benefit schools, that are operating resource centers, meeting spaces, or other satellites in adjacent counties in accordance with law prior to January 1, 2020, may continue such operations until renewal.  At the time of charter petition renewal, to continue operating in this alternative location, the charter must obtain written approval from the district in which the site is located, or from the COE where it is physically located in the case of a countywide charter.  In addition to these general rules, Section 47605.1(a)(9) permits a resource center outside the authorizing the district and county only if four very specific conditions are met: (1) it is authorized by and located in a school district adjacent to a school district with an enrollment of at least 500,000 pupils, (2) the charter school was established before January 1, 2009, (3) the resource center is located in a district with an enrollment of at least 500,000 pupils and was established before January 1, 2011, and (4) at least 50 percent of the pupils served by the resource center are currently or formerly on probation or were formerly incarcerated individuals.

Changes to Education Code Section 47605.6 and Inclusion of Education Code 47605.9 Regarding County Office of Education Petitions and Locations of Charter Schools

Revised Education Code section 47605.6 updates the criteria used by COEs to review a charter petition to align the criteria with those outlined in newly revised Education Code section 47605, though does not change or limit a county board’s additional authority to condition approval or deny a county-wide charter request.

Newly added Education Code section 47605.9, includes two key provisions that limit the SBE’s role in charter school oversight and authorization.  First, section 47605.9(a) requires a charter school petition to be submitted only to the school district or county office of education in which the charter school proposes to operate.  Petitions may not be submitted to the SBE or to other districts and counties.

Further, sections 47605(k)(2)(E) and 47605.9(b) and (c) require that upon granting a charter on appeal, SBE, in consultation with the petitioner, must designate either the district or the county office of education where the school is located as the authorizing agency.  Additionally, the only charters that may be submitted directly to SBE (rather than on appeal) are renewal requests by statewide charters operating pursuant to current section 47605.8.

Changes to Education Code Section 47607 and Addition of Section 47607.2 Regarding Renewals

Revisions to Education Code section 47607(a)(4) specify that the new grounds for denying new petitions (community and fiscal impact) cannot be used to deny a renewal. 

Education Code subsections 47607(c) and 47607(d) outline new renewal consideration criteria which include, but are not limited to:

• Substantiated complaints that the charter school has not complied with the proper student discipline/suspension and expulsion procedures; and
• The charter school is not serving all pupils who wish to attend.

Prior to denying a renewal on the basis that the school is “demonstrably unlikely to successfully implement the program set forth in the petition due to substantial fiscal or governance factors, or is not serving all pupils who wish to attend,” the chartering authority must provide 30 days’ notice of the alleged violation, provide the school a reasonable opportunity to cure the violation, and then may deny the renewal. 

Education Code 47607 no longer mandates that “increases in pupil academic achievement for all groups of pupils served” be considered as “the most important factor” in renewals and revocations, though academic performance is directly linked to renewal determinations and lengths.

The length of a renewal will vary between two and seven years depending on the school’s prior academic performance. 

Insertion of Education Code Section 47612.7, Providing a Moratorium on Online Charters

Newly added Education Code section 47612.7 provides that during the period from January 1, 2020, through January 1, 2022, inclusive, districts and COEs are prohibited from approving a petition that establishes a new nonclassroom-based charter school.  One notable exception to this moratorium is the permission to grant charters for existing schools that have to develop a “new charter” to bring the school into compliance with the 2016 Anderson Union High School District v. Shasta Secondary Home School decision regarding geographic location (4 Cal.App.5th 262), or any other relevant court ruling.

Impact on Charter Schools and Authorizing Agencies

These laws, new and revised, will significantly impact the way districts and COEs fulfill their roles as reviewers of charter petitions and authorizers of charter schools.  These legal changes will have a significant impact on the operations of many current and proposed charter schools.  As potential and current authorizing agencies, school districts and COEs must hold charter schools accountable for compliance with these laws. 

Compliance with the newly revised Charter Schools Act can be technical and complex and may require changes of practice for existing charter schools.  Many charter schools and charter management entities may not fully understand the complexities of these laws, and thus could inadvertently violate their requirements.  The changes create additional challenges for charter authorizing and oversight agencies.  As with any new law, there will be ongoing discussions between interested groups regarding interpretation of the new provisions. We will be addressing these changes at our upcoming Education Law conference on November 13, 2019, in Cerritos and November 15, 2019, in Stockton.  (Click here to register) In the meantime, if you have any questions regarding these matters, or if we can assist in your review and consideration of a charter’s proposal, renewal, or operations, please do not hesitate to contact us. 

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 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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