Charter wins Prop 39 ruling (updated)

Long-running hostility between a high-performing charter school and a wealthy, high-achieving district in the Bay Area has led to a state Court of Appeal ruling that further clarifies the right of charters to comparable district facilities.

In a unanimous, unambiguous decision overturning a District Court ruling, a three-judge panel of the Sixth Appellate District ruled that the Los Altos School District failed to offer Bullis Charter School adequate space because it did a faulty comparison with what was available in its other schools. ** Update: The Los Alto School District trustees voted 4-0 on Monday to appeal the decision to the State Supreme Court, according to the Los Altos Patch (see below).

The Bullis case was the latest of about a half-dozen Court of Appeal interpretations of Proposition 39, mostly favoring charter schools. Prop 39 is the complex law voters approved in 2000 that requires a school district to “make available, to each charter school … 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.”

The case centered on the basis for determining what constitutes “reasonably equivalent.” Prop 39 doesn’t require that each and every space offered to charters be identical to other district schools, the court said. But it does require that districts  acknowledge these differences in making a full and  accurate comparison considering the range of a school’s space needs. As Eric Premack, executive director of the Charter Schools Development Center in Sacramento, observed, “Size matters but it isn’t everything,” particularly if a charter is offered qualitatively better facilities.

However, districts must make a good faith effort with no playing cute to deny the charter its due.

Miscalculations and mistakes

Los Altos District didn’t do that. It made “mistakes” in reporting the outdoor lot sizes of five comparison schools by more than 50 percent on average. It undercalculated  the needs of Bullis’ library; it failed to pro-rate the outdoor space Bullis shared with Eagan Junior High, since Bullis was restricted to using a soccer field 40 percent of the time. It counted as district space provided to Bullis a multipurpose room that Bullis raised the money to build. It chose the smallest room size in the district, instead of an average room size, in the comparison.

In a footnote to the decision, the judges said “there is certainly evidence in the record” from which a finding could be made that the district acted in bad faith, though the court “declined to do so here.” (Prop 39 does not mete out penalties for bad faith, though courts could award lawyers’ fees at some point, and in the case of Los Altos, they would be huge.)

The court outlined general criteria that districts must follow in responding to a facilities request under Prop 39. Few districts have the quality facilities found in Los Altos, so it’s all relative. Still, districts must must:

  • Select appropriate district-run schools to use as a comparison group with the charter school,
  • Factor in three categories of space (teaching, specialized teaching, and non-teaching space such as libraries and day care facilities provided at other schools) in the comparison schools; and
  • Consider the site size of the comparison schools.

Jed Wallace, CEO of the California Charter Schools Assn., says he is hopeful that the Bullis decision would lead to a common-sense application of Prop 39. “There is an emerging consensus (among courts) that districts have not been doing what they should have in terms of standards of reasonable equivalency.”

Still fewer than half of the state’s 900-plus charter schools have sought free facilities under Prop 39. The Association is suing Los Angeles Unified, which has cited a shortage of space in not responding to some charters’ requests. And there remain inventive ways that districts can circumvent Prop 39,  so the Bullis ruling is not likely to end lawsuits, maybe not even at Bullis.

Founded seven years ago by Los Altos Hills parents when the district closed Bullis Elementary School, Bullis got its charter, on appeal, from the Santa Clara County Board of Education, which renewed it last month. It’s now a K-8 charter serving about 10 percent of students in Los Altos, and has a wait list.

Ken Moore, chairman of the Bullis board, said that the school is cramped and lacks a functioning library and eighth grade science lab. Students have been kicked out of using the Egan gym.

Moore is optimistic that, with the oversight of Santa Clara County District Court, where the case will return, Los Altos will provide adequate facilities next year. By redrawing school boundaries, the district could  open up more space at Egan and solve the problem, he said.

But while there may be a space shortage at Bullis, there hasn’t been a shortage of money for lawyers in Los Altos. No one’s betting this lawsuit will be the last.

** “The decision not only impairs school districts from exercising their judgment, balance interests, and make decisions in the best interests of all students, it provides a windfall to charter schools, affording them greater space than afforded students attending district schools,” according to the district announcement. Board President Bill Cooper added in the statement,  “As much as this court might wish to cast this process as strictly formulaic, in practice, the allocation of resources under the standard of “reasonably equivalent” does not neatly fit into a by-the-numbers approach.”

Author: John Fensterwald - Educated Guess

John Fensterwald, a journalist at the Silicon Valley Education Foundation, edits and co-writes "Thoughts on Public Education in California" (, one of the leading sources of California education policy reporting and opinion, which he founded in 2009. For 11 years before that, John wrote editorials for the Mercury News in San Jose, with a focus on education. He worked as a reporter, news editor and opinion editor for three newspapers in New Hampshire for two decades before receiving a Knight Fellowship at Stanford University in 1997 and heading West shortly thereafter. His wife is an elementary school teacher and his daughter attends the University California at Davis.

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