August 2022 ACCS - Item 2 Public Comment 1

To receive an electronic copy of the below communication, contact the Charter Schools Division by email at charters@cde.ca.gov.

[The following information was provided on California Charter Schools Association letterhead.]

August 8, 2022

RE: Advisory Commission on Charter Schools (ACCS) August 2022 Item 2

Appeal of the Denial of a Petition for the Establishment of a Classroom-Based Charter School Pursuant to California Education Code Section 47605(k)(2): Consideration of Evidence to Hear or Summarily Deny the Appeal of Caliber: High School, which was denied by the Vallejo City Unified School District and the Solano County Board of Education: SUPPORT

Dear Chair Walsh and ACCS Commissioners,

On behalf of the California Charter Schools Association (CCSA) and the 1300 charter schools we represent, we are writing to support the appeal of the denial of a petition for Caliber: High School (CHS). We strongly disagree with the report from the California Department of Education (CDE) which recommends that your Advisory Commission on Charter Schools (ACCS) recommend summary denial of the CHS appeal.

AB 1505 charged the ACCS with making a recommendation to the State Board of Education (SBE) about whether the SBE should hear an appeal by a charter school or summarily deny the appeal, based on the documentary record. The CDE wrongly recommends that the appeal be summarily denied, and we urge you not to follow this recommendation and instead recommend that the SBE hear the CHS appeal.

CDE’s recommendation is based on an incorrect reading of the statute. CDE states that the CHS appeal must be summarily denied because CHS has not submitted evidence to rebut the fact that the Vallejo City Unified School District (VCUSD) is in receivership. While it is arguable whether VCUSD is still in receivership in light of the changes under AB 1840 (2018) for school districts receiving emergency apportionments, CDE fails to understand, and misreads the statute, that the rebuttable presumption is related to the school district’s financial position to absorb the proposed charter petition’s fiscal impact under Education Code (EC) Section 47605(c)(8). That section provides that a district may deny a charter school if:

The school district is not positioned to absorb the fiscal impact of the proposed charter school. A school district satisfies this paragraph if it has a qualified interim certification pursuant to Section 42131 and the county superintendent of schools, in consultation with the County Office Fiscal Crisis and Management Assistance Team, certifies that approving the charter school would result in the school district having a negative interim certification pursuant to Section 42131, has a negative interim certification pursuant to Section 42131, or is under state receivership. Charter schools proposed in a school district satisfying one of these conditions shall be subject to a rebuttable presumption of denial. (Emphasis added.)

Under most circumstances, the law requires a charter school to be approved unless there are findings under EC Section 47605(c):

In reviewing petitions for the establishment of charter schools pursuant to this section, the chartering authority shall be guided by the intent of the Legislature that charter schools are and should become an integral part of the California educational system and that the establishment of charter schools should be encouraged. 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. The governing board of the school district shall not deny a petition for the establishment of a charter school unless it makes written factual findings, specific to the particular petition, setting forth specific facts to support one or more of the following findings . . . (Emphasis added.)

However, if the charter school is in a school district that is not positioned to absorb the fiscal impact of the charter school, the burden shifts to the charter school to provide evidence that the district could absorb the fiscal impact of the charter school. As the statute lays out, a school district is presumed to not be positioned to absorb the fiscal impact of the charter in three specific circumstances: (1) the charter school would result in a negative interim certification for the district; (2) the school district already has a negative interim certification; or (3) the district is under state receivership. If the district falls into one of those three categories, as VCUSD may, then the charter must provide evidence to demonstrate that regardless of that categorization on the district, the district can absorb the fiscal impact of the charter. This is reinforced by the Fiscal Crisis and Management Assistance Team (FCMAT) in an October 2020 fiscal alert explaining the new criteria for charter petition reviews under AB 1505 (Fiscal Impact of New Charter Evaluation Criteria in AB 1505 (Revised) (PDF)). The presumption that must be rebutted is the fiscal impact the charter will have on the district, not the fact that the district falls into one of the three enumerated categories.

Although there are circumstances in which a district may not be able to absorb the fiscal impact of a charter, and therefore meets the criteria for denial in EC Section 47605(c)(8), the Legislature clearly intended that to be limited as they provided the opportunity for the charter to rebut the presumption of denial based on fiscal impact, not simply on the status, for districts who fall under 47605(c)(8). In this case, the district received an emergency apportionment in 2004, exited state control in 2014, and is scheduled to pay off the remainder of their loan in two years. The fact that VCUSD is still paying off its emergency apportionment is not indicative of the district’s financial condition in light of the significant increases in state education funding for the upcoming 2022–23 school year and beyond, and has been clearly demonstrated and rebutted by CHS throughout the petition process but ignored by the district and county boards. To continue to ignore this evidence and recommend summary denial would only perpetuate the abuse of discretion seen at the district and county levels. The SBE should review the record and determine if the procedural and substantive deficiencies in the process by the school district and county board of education establish an abuse of discretion and reverse the denials of the CHS petition.

We thank you for your careful consideration of this item and urge you to vote against the CDE recommendation that CHS’s appeal be recommended for review at the SBE. If you have any questions or would like to discuss further, please feel free to contact Gina Plate, Vice President, Regulatory Affairs at gplate@ccsa.org or me at rsoto@ccsa.org.

Kindest regards,

Ricardo J. Soto
Chief Advocacy Office and General Counsel

Return to August 2022 ACCS Meeting Agenda