AAV of a Memorandum for SBE Meeting

MEMORANDUM

TO: Honorable Members of the Board of Trustees Compton Unified School District; Kaye Burnside, Superintendent Carlos Manrique, Associate Superintendent, Curriculum Design & Instructional Improvement

FROM: Glenn Noreen, Barack Obama Middle School

DATE: January 11, 2010

RE: Response to Staff Analysis and Recommendation: Barack Obama Middle School Charter School Petition

Introduction

In his memorandum with the subject “Staff Analysis and Recommendation: Barack Obama Middle School Charter School Petition” (“Staff Analysis”) dated January 12, 2010, Carlos Manrique recommends denial of the Petition. In this Memorandum, we respond to the Staff Analysis.

Background

Barack Obama Middle School (BOMS) will be operated by Ingenium Schools, the 501c(3) nonprofit corporation that currently operates Barack Obama Charter School (BOCS) (originally named Qued Charter Elementary School) in Compton Unified School District (CUSD). BOCS was approved on appeal by the State Board of Education (SBE) on November 6, 2008. SBE approved a second Ingenium Schools-managed charter school on appeal, Ingenium Charter School (ICS), last Tuesday, January 5; ICS will be in Los Angeles Unified School District.

The BOMS, BOCS, and ICS charter petitions naturally share much of their language (I wrote all three). If SBE has approved a charter with similar language, a Finding of Fact supporting denial of a charter may not be made on that item. In addition, many of the items in the Staff Analysis were in the BOCS Findings of Fact (FOF) made by the CUSD Board when it denied the BOCS petition; these were specifically reversed when SBE approved the BOCS charter.

As noted in the Staff Analysis, “a governing board may only deny a charter petition if the board makes written factual findings specific to the particular charter petition being reviewed, setting forth facts, which support one or more of the following findings:

1. “The charter school presents an unsound educational program for the pupils to be enrolled in the charter school;
2. “The petitioners are demonstrably unlikely to successfully implement the program set forth in that petition;
3. “The petition does not contain the number of signatures required by section 47605(a);
4. “The petition does not contain an affirmative statement of various nondiscrimination and admissions requirements; or
5. “The petition does not contain reasonably comprehensive descriptions of sixteen specific items required to be included in a charter petition.”

The Staff Analysis does not address items 1, 3, or 4 above, so our understanding is that the Staff accepts that the Petition meets the requirements of these items. The only concerns addressed apply to items 2 and 5.

In order for the CUSD board to deny the BOMS petition, it must therefore make a Finding of Fact supporting a conclusion that “the petitioners are demonstrably unlikely to successfully implement the program” or that “the petition does not contain reasonably comprehensive descriptions.” The Finding of Fact must be based on fact, not conjecture, and must not contradict previous SBE findings. Below, we reproduce the Staff Analysis in black and provide our specific responses in magenta.

(Note: For accessibility purposes, the California Department of Education has indented and labeled the staff analysis as "district analysis" and the response as "school response.")

Response to Staff Analysis of Barack Obama Middle School Charter Petition

1. The Petitioners Are Demonstrably Unlikely To Successfully Implement The Program Set Forth In The Petition.
   
   
   1. District Analysis -- Collective Bargaining Agreement.
      The Petitioners do not appear to have budgeted for the cost of collective bargaining and/or contract administration. However, since BOMS intends to be a public school employer for purposes of the EERA, BOMS would need to allocate financial resources for this matter.
      
      School Response
      There is no collective bargaining agreement in place at BOCS and none at the vast majority of California’s independent charter schools. The BOCS petition approved by SBE does not contain a budget line item for collective bargaining. This charge was in Compton’s BOCS FOF and was rejected by SBE.¹ This cannot support a factual finding that “the petitioners are demonstrably unlikely to successfully implement the program.” Of course, should the employees of one or more of our charter schools petition for exclusive representation, we would make adjustments to those schools’ budgets as needed to cover any costs related to collective bargaining.
      
      
   2. District Analysis -- Operational Timeline.
      It appears that the timeline described in the Petition for establishing BOMS is not a realistic operational plan. As one way to ensure that an operational plan for operating a charter school is realistic, the Model Application recommends that a charter petition be submitted by September 1st of the year preceding the year in which the petitioners seek to have school in operation. (Model Application at 8.) The Petition, however, was submitted in November 2009. BOMS’s proposed 2010-2011 school year opening is ambitious, but seemingly unrealistic.
      
      School Response
      A denial has to be supported with facts specific to the petition, not conjecture. The Staff Analysis ignores the fact that Ingenium Schools already operates a successful charter school and thus is knowledgeable and experienced in the start-up process. SBE approved the charter for Ingenium Charter School precisely one week before the date the BOMS petition will be voted on by the Compton board. The SBE clearly agrees with us that the time is sufficient.² Due to SBE’s approval of a school with an identical timeline, and the experience of Ingenium Schools in the startup process, this cannot support a factual finding that “the petitioners are demonstrably unlikely to successfully implement the program.”
      
      
   3. District Analysis -- Accreditation from the Western Association of Schools and Colleges.
      The Western Association of Schools and Colleges (“WASC”) is one of six regional associations that accredits public and private schools, colleges, and universities in the United States. WASC covers institutions in California and its Accrediting Commission for Schools and is responsible for the accreditation of schools below the college level, which includes BOMS.
      
      Though not mandated, WASC accreditation (1) certifies to the public that the school is a trustworthy institution of learning and (2) validates the integrity of a school’s program and student transcripts. More importantly, credits earned from courses offered by a charter school can be transferred to another school only if the charter school is WASC accredited. See Educ. Code § 47605(b)(5)(A)(ii).
      
      Although Petitioners state that BOMS will submit a Request for WASC, BOMS has not yet been accredited by WASC. (See Petition at p. 46.)
      
      School Response
      This charge was also in the Compton BOCS FOF, which SBE rejected when it approved the BOCS charter. Schools may not apply for affiliation with WASC (the first step to accreditation) until they are in their second semester of operation. It is not possible for a school to be accredited by WASC before it opens.³ This cannot support a factual finding that “the petitioners are demonstrably unlikely to successfully implement the program.”
      
      
   4. District Analysis -- Transportation.
      The Model Application indicates that a petition shall “provide a description of the arrangements, if any, to be made for transportation of students, including expected level of need, proposed contracts, and adequate types and levels of insurance.” The Model Application at 20.
      
      The Petition remains silent on the issue of transportation of BOMS’s students. The omission is especially glaring considering the budget also allocates no funds to transportation of pupils. However, it appears reasonably likely that some form of public school transportation would be required for students to attend BOMS.
      
      School Response
      It is obviously quite possible for a charter school to operate without offering student transportation; roughly 90% of existing charter schools in California do so, including BOCS. This charge was in Compton’s BOCS FOF and was rejected by the SBE when it approved the BOCS charter.⁴ Even the language of the Staff Analysis is based upon conjecture, “it appears reasonably likely that ….” Accordingly, this cannot support a factual finding that “the petitioners are demonstrably unlikely to successfully implement the program.”
2. The Petition Does Not Contain Reasonably Comprehensive Descriptions of Certain Specific Items Required To Be Included In A Charter Petition As Set Forth In Education Code Section 47605(b)(5).
   
   
   1. District Analysis -- Special Education.
      Education Code section 47605(b)(5)(A) requires that a petition contain reasonably comprehensive descriptions of the educational program of the school. California Code of Regulation Title 5 section 11967.5.1(f)(1)(H) requires that a petition
      
      [s]pecif[y] the charter school's special education plan, including, but not limited to, the means by which the charter school will comply with the provisions of Education Code section 47641, the process to be used to identify students who qualify for special education programs and services, how the school will provide or access special education programs and services, the school's understanding of its responsibilities under law for special education pupils, and how the school intends to meet those responsibilities 5 C.C.R § 11967.5.1(f)(1)(H). Here, although the Petition states that BOMS will be regarded as a public school of the District for special education purposes and that it will follow the SELPA policies and procedures, it has not explained the process BOMS will use to serve special needs students, as the Petition fails to identify who will implement and carry out the program. According to the documents provided by Petitioners, none of the potential BOMS teachers identified possesses the necessary certifications to teach special education.
      
      Further, the Petition does not appear to have allocated sufficient financial resources for special education. (Petition at Appendix H.) For a charter plan to be financially realistic, the plan must include “in the operational budget reasonable estimates of all anticipated revenues and expenditures necessary to operate the school, including, but not limited to, special education[.]” 5 Cal. Code Reg. § 11967.5.1(c)(3)(B)(2). Here, though the Petition indicates that BOMS will provide special education services, the budget has no provisions for special education teachers, counselors, psychologists, and other necessary service providers; rather the budget does not allocate any funds specifically for special education services or supplies.
      
      School Response
      The budget includes a salary for a resource teacher. The special education language in the BOMS petition is identical to the language in the BOCS petition approved by SBE.⁵ Furthermore, the District’s staff analysis ignores the legal requirement found in State and Federal law that the District ensure that the student enrolled in a charter school approved by the District be served in the same manner as any other student in the District. Thus, this cannot support a factual finding that “the petition does not contain reasonably comprehensive descriptions.”
      
      
   2. District Analysis -- Parental Involvement.
      Education Code section 47605(b)(5)(D) requires that a charter petition specify the process to be followed by the school to ensure parental involvement.
      
      Here, BOMS does not have a position on the Board for a parent representative, nor is it apparent that any current Board member is a parent of a potential BOMS student. (See Petition at p. 57.) Rather, the Petition relies on surveys and parental volunteer activities to obtain parental participation in BOMS. Such mechanisms may be not rigorous and effective enough to ensure parental involvement as required by the Education Code.
      
      School Response
      The parental involvement language in the BOMS petition is identical to the language in the BOCS petition approved by SBE.⁶ This cannot support a factual finding that "the petition does not contain reasonably comprehensive descriptions."
      
      
   3. District Analysis -- Teacher Qualification.
      The Petition does not appear to be realistic when it comes to hiring and retaining highly qualified teachers. Education Code section 47605(b)(5)(E) requires that a charter school petition describe the qualifications that must be met by the individuals who will be employed by the school. Educ. Code § 47605(b)(5)(E). Moreover, the petition must “specify that the requirements for employment set forth in applicable provisions of law will be met, including, but not limited to credential as necessary.” 5 Cal. Code Reg. § 11967.5.1(f)(5)(C).
      
      The Petition provides that the school “will advertise its openings at local university training programs that specialize in producing NCLB-qualified teachers.” (Petition at p. 75.) However, the Petition is not persuasive in how BOMS will be able to recruit and retain highly qualified teachers, especially given the pay scale and budget proposed by BOMS. In terms of attracting and retaining qualified teachers, the Petition indicates that BOMS intends to pay “market rates” to its teachers, and the average salary will be $45,000 per year. (Petition at p. 76.) This appears to be below current market rate for highly qualified teachers.
      
      Further, obtaining highly qualified teachers is particularly problematic since highly qualified teachers often have multiple offers of teaching positions from public school districts and can obtain tenure under certain circumstances, whereas there is no indication that BOMS teachers will be able to receive any kind of tenure. (See Petition at p. 75.) The Petition does not explain how BOMS will attract and obtain highly qualified teachers, while at the same time competing with public schools that offer tenure-track positions. This lack of explanation and lack of evidence that any of its teachers are “highly qualified” suggests that the Petitioners are unlikely to successfully implement the program set forth in the Petition.
      
      School Response
      BOCS has had no problems attracting highly qualified staff at an average salary of $45,000 and SBE accepted this salary level in both the BOCS and BOMS charters. California currently has a surplus of qualified teachers; see the press release from the Superintendent of Public Instruction.⁷ Accordingly, the Staff analysis is conjecture and not fact and this cannot support a factual finding that “the petition does not contain reasonably comprehensive descriptions.”
      
      
   4. District Analysis -- Health and Safety.
      Education Code section 47605(b)(5)(F) requires a comprehensive description of “the procedures that the school will follow to ensure the health safety of pupils and staff.” At a minimum this means that a petition must:
      
      (D) Provide for the screening of pupils’ vision and hearing and the screening of pupils for scoliosis to the same extent as would be required if the pupils attended a non-charter public school.” 5 Cal. Code Reg. § 11967.5.1(f)(6)(C)(D). The Petition states that “BOMS will adopt and implement full health and safety procedures and risk management policies at our school site...” (Petition at p. 77.) Further, the Petition provides the proposed “Safety Plan.” (See Appendix F to Petition.) However, neither the statement nor the Safety Plan meets the legal requirement that the Petition specifically provide for the screening of pupils’ vision, hearing and for scoliosis. The Petition is deficient in regards to adequately addressing health and safety issues as required by law.
      
      School Response
      Vision, hearing and for scoliosis screening for pupils is specifically addressed on Page 79 of the Petition, which reads: “VISION/HEARING/SCOLIOSIS: BOMS shall adhere to Education Code §49450 et. seq. as applicable to the grade levels served by BOMS.” This language is identical to the language in the SBE-approved BOCS petition. This cannot support a factual finding that “the petition does not contain reasonably comprehensive descriptions."
      
      
   5. District Analysis -- Compensation and Benefits.
      Education Code section 47605(b)(5)(K) requires that the petition contain “[t]he manner by which staff members of the charter schools will be covered by the State Teachers' Retirement System, the Public Employees' Retirement System, or federal social security.” Educ. Code § 47605(b)(5)(K); 5 C.C.R. § 11967.5.1(f)(11). The Model Application suggests that the petition provide a brief explanation of how the school will structure employee compensation to attract candidates with the necessary skills and experience.
      
      Here, as noted above, although the Petition states that it will pay market rates to its teachers, i.e., teacher salaries are comparable to teacher salaries in neighboring school districts, it lacks concrete plans to ensure that it will hire and retain “highly qualified professionals.” Moreover, the low average teacher salaries to be offered by BOMS is especially problematic as highly qualified teachers can often obtain tenure with teaching positions from public school districts.
      
      School Response
      As noted above, BOCS has had no difficulty attracting highly qualified teachers at an identical salary. The Staff may not be familiar with current market conditions for teachers; please see the press release from the Superintendent of Public Instruction cited above. Findings of Fact must be based on facts, not conjecture. This cannot support a factual finding that “the petition does not contain reasonably comprehensive descriptions.”
      
      Also, Education Code section 47605(b)(5)(K) requires that a charter school petition shall specify the manner in which staff members of the charter school will be covered by the State Teachers’ Retirement System (“STRS”), the Public Employees’ Retirement System (“PERS”), and/or federal social security. At a minimum, the petition must specify the positions to be covered under each system and the staff who will be responsible for ensuring that appropriate arrangements for that coverage have been made. See 5 C.C.R. § 11967.5.1(f)(11). Here, Petitioners fail to specify personnel who will carry out the arrangements of the employee retirement systems. Moreover, the budget has not allocated any money for making the PERS arrangements. (See Appendix H to Petition.)
      
      School Response
      On Page 77, the Petition states: “Barack Obama Middle School teachers and certificated administrators shall be a part of the State Teachers’ Retirement System. Other employees shall be covered by Social Security.” No budget provision has been made for PERS because the school will not offer it, as clearly stated. This language is identical to that in the SBE-approved BOCS charter. This cannot support a factual finding that “the petition does not contain reasonably comprehensive descriptions.”
3. Lack Of Sufficient Resources For Key Management And Administrative Staff.
   The Education Code section 47604(g) requires that a school petition specify the manner in which administrative services of the charter school are to be provided. Here, the Petition indicates that it will hire three administrators for its first year of operation: an Executive Director, Principal and Assistant Principal. (See Appendix H to Petition.) The budget, however, appears to only allocates a total of $190,167 for the salary of all three positions, which is seemingly below the market rate for qualified persons in similar positions. (Id.) Furthermore, the budget appears to allocate money for only one clerical employee for Year One of operation. (Id.) It will be extremely difficult, if not impossible, for BOMS to provide full-fledged administrative services to a new school of several hundred students with only one clerical employee.
   
   School Response
   The Executive Director is shared with two other schools (BOCS and ICS); each pays 1/3 of his $108,000 annual salary, or $36,000. The Principal salary is $90,000 and the Assistant Principal salary is $70,000 – the same as the current BOCS salaries. However, the Assistant Principal will be hired in August, reducing this salary this first year by one month to $64,167. These are the same salaries that were in the SBE-approved BOCS and ICS petitions. This cannot support a factual finding that “the petition does not contain reasonably comprehensive descriptions.”

Conclusion

The Staff Analysis does not contain a single comment that could support a Findings of Fact that “the petitioners are demonstrably unlikely to successfully implement the program” or that “the petition does not contain reasonably comprehensive descriptions.” Accordingly, the CUSD Board must approve the charter petition.

¹ California Department of Education 2008-09 Charter School Petition Review Form, QUED Charter Elementary School [http://www.cde.ca.gov/be/ag/ag/documents/nov08item15.doc] (DOC; 348KB; 38pp.), page 36: “QUED is not required to budget for the cost of collective bargaining.”

² See attached “Official Notice of the Assignment of Charter School Number.” Also, California Department of Education 2008-09 Charter School Petition Review Form, QUED Charter Elementary School[http://www.cde.ca.gov/be/ag/ag/documents/nov08item15.doc] (DOC; 348KB; 38pp.), page 32: “A Fall 2008 opening was not unrealistic if the petition had been approved on February 26, 2008.”

³ California Department of Education 2008-09 Charter School Petition Review Form, QUED Charter Elementary School [http://www.cde.ca.gov/be/ag/ag/documents/nov08item15.doc] (DOC; 348KB; 38pp.), page 36: “It is not possible to receive WASC accreditation prior to the establishment of the charter school and QUED’s plan to achieve WASC accreditation appears to be reasonable.” Also, see WASC Conditions of Eligibility [http://www.acswasc.org/pdf_general/ConditionsOfEligibility.pdf] (PDF; Outside Source).

⁴ California Department of Education 2008-09 Charter School Petition Review Form, QUED Charter Elementary School [http://www.cde.ca.gov/be/ag/ag/documents/nov08item15.doc] (DOC; 348KB; 38pp.), page 37: “QUED is not required to provide for the transportation of students.”

⁵ Qued Charter Elementary School Petition [http://www.cde.ca.gov/be/ag/ag/documents/nov08item15a3.pdf] (PDF; 4.1MB; 263pp.), pp. 59-67.

⁶ Qued Charter Elementary School Petition [http://www.cde.ca.gov/be/ag/ag/documents/nov08item15a3.pdf] (PDF; 4.1MB; 263pp.), pp. 59-67.

⁷ “Record Number of Teachers Receiving Layoff Notices” [http://www.cde.ca.gov/nr/ne/yr09/yr09rel40.asp]. [The preceding link is no longer valid.]