Attorney Letter to Supt. Gill
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FEBRUARY 24, 2014
VIA: EMAIL AND U.S. MAIL
Dr. Donald Gill, Superintendent Antioch Unified School District 510 G Street Antioch, CA 94509 Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site
Dear Superintendent Gill: Our office represents Dozier-Libbey Medical High School (“DLMHS”), which submitted a charter petition to the Antioch Unified School District (“District”) to convert Dozier-Libbey Medical High School to a charter school as per Education Code section 47605(a)(2). Should the District deny the DLMHS petition, DLMHS will appeal this denial to the Contra Costa County Office of Education, and then to the State Board of Education if necessary. This letter serves to put the District on notice that the District may not engage in any of the following while the charter petition is pending: (1) move the DLMHS program to another facility; (2) change the allocation of the current facility in which DLMHS is operating or place another program on the site; (3) surplus and lease or otherwise encumber the DLMHS facility. As per the Charter Schools Act and Proposition 39, DLMHS will be entitled to occupy its school site as a conversion charter school if it is approved either by the District, the County Board of Education, or the State Board of Education. Dozier-Libbey Medical High School is Entitled to Occupy its Facility in its First Year of Operation and Thereafter Upon Request As the District is aware, there are two distinct types of charter schools in California. The first are “conversion” charter schools such as Dozier-Libbey Medical High School; a conversion charter school is one that “proposes to convert an existing public school to a charter school.” (Education Code Section 47605(a)(2).) The second is a “start-up” charter school that does not involve the conversion of an existing public school to a charter school. Both charter schools have different legal processes for their creation as well as differing legal rights and responsibilities after their creation.
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 2 of 5! !
For example, a conversion charter school may only be submitted to a district for review “after the petition has been signed by not less than 50 percent of the permanent status teachers currently employed at the public school to be converted[.]” (Education Code Section 47605(a)(2).) A startup charter school, on the other hand, may be submitted for review if it is signed by a number of parents (or legal guardians) that is equivalent to at least one half of the number of pupils that the charter school estimates will enroll in the first year of operation (Education Code Section 47605(a)(1)(A)), or signed by a number of prospective teachers that is equivalent to at least one half of the number of teachers that the charter school estimates will be employed during its first year of operation. Unlike start-up charter schools, the statutory framework surrounding conversion charter schools clearly ties these charter schools to the school facilities in which it operates at the time the petition is signed by the teachers1. For example, after a conversion charter school is approved, because it is starting off in a converted school site and will not need additional facilities capital to begin its operations, a conversion charter school is not entitled to a revolving loan fund from the California Department of Education in accordance with Education Code Section 41365(b).2 In addition, as conversion schools are not forced into the private market to rent facilities they are not entitled to facilities grant reimbursements in accordance with Education Code Section 47614.5(d)(2) and (3).3 In addition, because students may not be compelled to attend a charter school (Education Code Section 47605(f)) and teachers of the school district may not be required to teach at a charter school (Education Code Section 47605(e)), when a public school is converted to a charter school, the only thing that remains to be converted is the actual physical school site itself – the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! " !It should be noted that if a school district was allowed to move a conversion school site, then the school district would be allowed to effectively change a conversion school to a start-up charter school, in violation of the process requirements (e.g., teacher signatures) of Education Code Section 47605. If the school district were allowed to move a conversion charter school away from its converted school site, the school district could effectively defeat the teacher and/or community’s interest in converting that school site, which would have a chilling effect on converting public school sites to charter status, contrary to the Legislature’s intent. (See Education Code Section 47601). Critically, because a conversion school must continue to offer a preference for students residing in its attendance area at the time of conversion (Education Code Section 47605(d)(1)), moving a conversion charter school would defeat that statutory obligation. Further, if a conversion school could be moved, a school district could defeat teachers’ efforts to convert an underperforming school to charter, as allowed by many of the state’s high profile academic accountability programs including the Immediate Intervention/Underperforming Schools program (“II/USP”) and High Priority Schools Program (“HPSP”) intended to rescue low performing schools. (See Education Code Sections 52055.5, 52055.55, or 52055.650.)
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!The Charter Schools Revolving Loan allows charter schools to access a loan up to $250,000 in their first year of operation. 3 Education Code Section 47614.5 establishes the Charter School Facility Grant program; this grant program allocates $750 per unit ADA to reimburse a charter school for up to 75% of its annual facilities costs under certain circumstances.
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 3 of 5! !
students and teachers of that converted school site may not be forced to attend or work for the converted charter school. This same reasoning was adopted by the Honorable Trena H. BurgerPlavan in her trial court decision dated June 23, 2003 in a matter of Rogers v. Sacramento City Unified School District (Case No. 03CS00523). In that matter, Judge Burger-Plavan found that the newly created St. Hope Charter School was really a conversion charter school (thus needing teacher signatures) because it operated at the recently closed Sacramento High School site. When looking at the distinction between a start-up and a conversion charter school, the court found “that leaves little else to support the distinction between a conversion and a start up charter school other than the school site itself.” It is for the reasons outlined above, among other things, that the State Board of Education clarified in the revised Proposition 39 Implementing Regulations that a conversion charter school has the right to occupy the converted school site unless and until the charter school and the granting agency agree to amend the charter, and the State Board of Education grants a waiver of Education Code Section 47605(d)(1) (the attendance area preference.). In the Proposition 39 Implementing Regulations the State Board of Education makes clear that a conversion charter school is entitled to its converted facility in the first year and must only make an annual request for Proposition 39 facilities in its second year of operations (i.e., after its first year of operation.) Indeed, a charter school is not subject to the over-allocation provisions of Proposition 39 in the first year of operation because there is not request for facilities in the first year of operations. (5 CCR 11969.3(c)(2). And as noted, the district does not have the right to change the charter school’s location nor its prior attendance areas without amending the charter (which requires agreement between charter school and district) and receiving a waiver from the State Board of Education. (5 CCR Section 11969.3 (c)(2) and (d).) More importantly, 5 CCR Section 11969.3(c)(2) states that for purposes of Proposition 39, the school site of a conversion charter school “shall be considered to be reasonably equivalent to the condition of school district facilities for the first year the charter school uses the facility.” The language of this section clearly indicates that the conversion charter school will be in its original facility “for the first year the charter school uses the facility.” It is only after the first year of operation that a conversion charter school needs to make an annual request to maintain its facility pursuant to Section 47614. (5 CCR Section 11969.3(d)(1).) In the first year the charter school does not need to make a request for the facilities. (5 CCR Section 11969.3(d)(1) and (3).) The fact that a conversion charter school does not need to make a request for facilities in its first year of operation also means a conversion charter school does not need to comply with the timelines contained in 5 CCR Section 11969.9 that define when a charter school is considered to be “operating in the school district” for purposes of Proposition 39. 5 CCR Section 11969.9(a) states a school must be operating in the school district “before it submits a request for facilities” or is “eligible to request facilities.” (Emphasis added.) However, as noted above, conversion charter schools do not need to submit a request for facilities in their first year of operation. (5 CCR Section 11969.3(d)(1) and (3).) Thus, a conversion charter school may submit
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 4 of 5! !
its petition at any time during the school year in order to occupy its facility in the subsequent school year. Also consistent with the conversion charter school’s right to occupy a converted school site in the first year is the fact that the regulations provide that a conversion charter school is not subject to reimbursement for over-allocated space pursuit to 5 CCR Section 11969.3(d)(3) in the first year it operates on the facility. By exempting conversion charter schools from the overallocation penalty in the first year, the State Board of Education is also clearly exempting them from the obligation to provide a request with its attendant ADA projections. (5 CCR Section 11969.3(d)(3)). The purpose of the ADA projections is only to determine reasonable equivalency (not necessary here pursuant to 5 CCR Section 11969.3(c) because the converted school site is deemed reasonably equivalent) and to calculate any over-allocation penalty (also not necessary here pursuant to 5 CCR Section 11969.3(c) – there is no over allocation penalty in the first year). The Final Statement of Reasons specifically acknowledges the difficulty of projecting ADA in a conversion charter school’s first year, stating that “only after the conversion charter school has commenced operation can it be accurately determined whether approximately the same number of in-district students continue to attend the site. Thus, to harmonize the statutory provisions, the regulations transitionally (for a one-year period) preclude a conversion charter school from challenging the conversion site as not being reasonably equivalent, and preclude application of the over-allocated space reimbursement.” The only notification required of a conversion charter school is to notify the district of any over-allocation of space by February 1 of their first year of operation; thereafter the district may reclaim this over-allocated space for the subsequent year. (5 CCR 11969.3(d)(3).) This further distinction regarding conversion schools is based upon the fact that the conversion school will be remaining on the same school site and must give a preference to students who were in the former attendance area of the district school, and thus may be inheriting a site that was either over- or under-utilized while a school district site. (See, State Board of Education Final Statement of Reasons). Please note that these provisions were added to the Proposition 39 implementing regulations at the request of conversion charter school operators that were threatened with loss of their facility if the teachers and community supported the transition to conversion school. Thus these very regulatory provisions are in place to prevent punitive actions by the school district when a conversion school petition is submitted to the district. The issue of a conversion charter school’s right to occupy its original school site in its first year of operation was previously litigated by our office in Ventura County. The court in MATES v. Conejo Valley Unified School District (Case No. 56-2009-00336393-CU-WM-SIM) determined that the conversion charter school at issue was entitled to occupy its original site for its first year of operation and could not be moved to a different location during its first year of operations. In reviewing the statutory and regulatory framework in the context of the Final Statement of Reasons, the court found that under this framework, “the district is required to make that site available to the charter for its first year of operation.”
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 5 of 5! !
Conclusion For the reasons stated above, DLMHS is entitled to occupy the DLMHS site in its first year of operation upon approval of its conversion charter petition and thereafter upon annual request. As a result, until such time as DLMHS has either been approved by the District or has exhausted its appeals of any District denial of its conversion charter school petition, the District may not take any action to move, displace, change, surplus, lease or otherwise encumber the DLMHS school site and thus deny the rights of the teachers, parents, students and community that support the conversion of DLMHS to charter status. *!
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Please do not hesitate to contact me should you have any questions.
SINCERELY, LAW OFFICES OF YOUNG, MINNEY & CORR, LLP
PAUL C. MINNEY SARAH J. KOLLMAN ATTORNEYS AT LAW
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FEBRUARY 24, 2014
VIA: EMAIL AND U.S. MAIL
Dr. Donald Gill, Superintendent Antioch Unified School District 510 G Street Antioch, CA 94509 Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site
Dear Superintendent Gill: Our office represents Dozier-Libbey Medical High School (“DLMHS”), which submitted a charter petition to the Antioch Unified School District (“District”) to convert Dozier-Libbey Medical High School to a charter school as per Education Code section 47605(a)(2). Should the District deny the DLMHS petition, DLMHS will appeal this denial to the Contra Costa County Office of Education, and then to the State Board of Education if necessary. This letter serves to put the District on notice that the District may not engage in any of the following while the charter petition is pending: (1) move the DLMHS program to another facility; (2) change the allocation of the current facility in which DLMHS is operating or place another program on the site; (3) surplus and lease or otherwise encumber the DLMHS facility. As per the Charter Schools Act and Proposition 39, DLMHS will be entitled to occupy its school site as a conversion charter school if it is approved either by the District, the County Board of Education, or the State Board of Education. Dozier-Libbey Medical High School is Entitled to Occupy its Facility in its First Year of Operation and Thereafter Upon Request As the District is aware, there are two distinct types of charter schools in California. The first are “conversion” charter schools such as Dozier-Libbey Medical High School; a conversion charter school is one that “proposes to convert an existing public school to a charter school.” (Education Code Section 47605(a)(2).) The second is a “start-up” charter school that does not involve the conversion of an existing public school to a charter school. Both charter schools have different legal processes for their creation as well as differing legal rights and responsibilities after their creation.
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 2 of 5! !
For example, a conversion charter school may only be submitted to a district for review “after the petition has been signed by not less than 50 percent of the permanent status teachers currently employed at the public school to be converted[.]” (Education Code Section 47605(a)(2).) A startup charter school, on the other hand, may be submitted for review if it is signed by a number of parents (or legal guardians) that is equivalent to at least one half of the number of pupils that the charter school estimates will enroll in the first year of operation (Education Code Section 47605(a)(1)(A)), or signed by a number of prospective teachers that is equivalent to at least one half of the number of teachers that the charter school estimates will be employed during its first year of operation. Unlike start-up charter schools, the statutory framework surrounding conversion charter schools clearly ties these charter schools to the school facilities in which it operates at the time the petition is signed by the teachers1. For example, after a conversion charter school is approved, because it is starting off in a converted school site and will not need additional facilities capital to begin its operations, a conversion charter school is not entitled to a revolving loan fund from the California Department of Education in accordance with Education Code Section 41365(b).2 In addition, as conversion schools are not forced into the private market to rent facilities they are not entitled to facilities grant reimbursements in accordance with Education Code Section 47614.5(d)(2) and (3).3 In addition, because students may not be compelled to attend a charter school (Education Code Section 47605(f)) and teachers of the school district may not be required to teach at a charter school (Education Code Section 47605(e)), when a public school is converted to a charter school, the only thing that remains to be converted is the actual physical school site itself – the
!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! " !It should be noted that if a school district was allowed to move a conversion school site, then the school district would be allowed to effectively change a conversion school to a start-up charter school, in violation of the process requirements (e.g., teacher signatures) of Education Code Section 47605. If the school district were allowed to move a conversion charter school away from its converted school site, the school district could effectively defeat the teacher and/or community’s interest in converting that school site, which would have a chilling effect on converting public school sites to charter status, contrary to the Legislature’s intent. (See Education Code Section 47601). Critically, because a conversion school must continue to offer a preference for students residing in its attendance area at the time of conversion (Education Code Section 47605(d)(1)), moving a conversion charter school would defeat that statutory obligation. Further, if a conversion school could be moved, a school district could defeat teachers’ efforts to convert an underperforming school to charter, as allowed by many of the state’s high profile academic accountability programs including the Immediate Intervention/Underperforming Schools program (“II/USP”) and High Priority Schools Program (“HPSP”) intended to rescue low performing schools. (See Education Code Sections 52055.5, 52055.55, or 52055.650.)
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!The Charter Schools Revolving Loan allows charter schools to access a loan up to $250,000 in their first year of operation. 3 Education Code Section 47614.5 establishes the Charter School Facility Grant program; this grant program allocates $750 per unit ADA to reimburse a charter school for up to 75% of its annual facilities costs under certain circumstances.
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 3 of 5! !
students and teachers of that converted school site may not be forced to attend or work for the converted charter school. This same reasoning was adopted by the Honorable Trena H. BurgerPlavan in her trial court decision dated June 23, 2003 in a matter of Rogers v. Sacramento City Unified School District (Case No. 03CS00523). In that matter, Judge Burger-Plavan found that the newly created St. Hope Charter School was really a conversion charter school (thus needing teacher signatures) because it operated at the recently closed Sacramento High School site. When looking at the distinction between a start-up and a conversion charter school, the court found “that leaves little else to support the distinction between a conversion and a start up charter school other than the school site itself.” It is for the reasons outlined above, among other things, that the State Board of Education clarified in the revised Proposition 39 Implementing Regulations that a conversion charter school has the right to occupy the converted school site unless and until the charter school and the granting agency agree to amend the charter, and the State Board of Education grants a waiver of Education Code Section 47605(d)(1) (the attendance area preference.). In the Proposition 39 Implementing Regulations the State Board of Education makes clear that a conversion charter school is entitled to its converted facility in the first year and must only make an annual request for Proposition 39 facilities in its second year of operations (i.e., after its first year of operation.) Indeed, a charter school is not subject to the over-allocation provisions of Proposition 39 in the first year of operation because there is not request for facilities in the first year of operations. (5 CCR 11969.3(c)(2). And as noted, the district does not have the right to change the charter school’s location nor its prior attendance areas without amending the charter (which requires agreement between charter school and district) and receiving a waiver from the State Board of Education. (5 CCR Section 11969.3 (c)(2) and (d).) More importantly, 5 CCR Section 11969.3(c)(2) states that for purposes of Proposition 39, the school site of a conversion charter school “shall be considered to be reasonably equivalent to the condition of school district facilities for the first year the charter school uses the facility.” The language of this section clearly indicates that the conversion charter school will be in its original facility “for the first year the charter school uses the facility.” It is only after the first year of operation that a conversion charter school needs to make an annual request to maintain its facility pursuant to Section 47614. (5 CCR Section 11969.3(d)(1).) In the first year the charter school does not need to make a request for the facilities. (5 CCR Section 11969.3(d)(1) and (3).) The fact that a conversion charter school does not need to make a request for facilities in its first year of operation also means a conversion charter school does not need to comply with the timelines contained in 5 CCR Section 11969.9 that define when a charter school is considered to be “operating in the school district” for purposes of Proposition 39. 5 CCR Section 11969.9(a) states a school must be operating in the school district “before it submits a request for facilities” or is “eligible to request facilities.” (Emphasis added.) However, as noted above, conversion charter schools do not need to submit a request for facilities in their first year of operation. (5 CCR Section 11969.3(d)(1) and (3).) Thus, a conversion charter school may submit
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 4 of 5! !
its petition at any time during the school year in order to occupy its facility in the subsequent school year. Also consistent with the conversion charter school’s right to occupy a converted school site in the first year is the fact that the regulations provide that a conversion charter school is not subject to reimbursement for over-allocated space pursuit to 5 CCR Section 11969.3(d)(3) in the first year it operates on the facility. By exempting conversion charter schools from the overallocation penalty in the first year, the State Board of Education is also clearly exempting them from the obligation to provide a request with its attendant ADA projections. (5 CCR Section 11969.3(d)(3)). The purpose of the ADA projections is only to determine reasonable equivalency (not necessary here pursuant to 5 CCR Section 11969.3(c) because the converted school site is deemed reasonably equivalent) and to calculate any over-allocation penalty (also not necessary here pursuant to 5 CCR Section 11969.3(c) – there is no over allocation penalty in the first year). The Final Statement of Reasons specifically acknowledges the difficulty of projecting ADA in a conversion charter school’s first year, stating that “only after the conversion charter school has commenced operation can it be accurately determined whether approximately the same number of in-district students continue to attend the site. Thus, to harmonize the statutory provisions, the regulations transitionally (for a one-year period) preclude a conversion charter school from challenging the conversion site as not being reasonably equivalent, and preclude application of the over-allocated space reimbursement.” The only notification required of a conversion charter school is to notify the district of any over-allocation of space by February 1 of their first year of operation; thereafter the district may reclaim this over-allocated space for the subsequent year. (5 CCR 11969.3(d)(3).) This further distinction regarding conversion schools is based upon the fact that the conversion school will be remaining on the same school site and must give a preference to students who were in the former attendance area of the district school, and thus may be inheriting a site that was either over- or under-utilized while a school district site. (See, State Board of Education Final Statement of Reasons). Please note that these provisions were added to the Proposition 39 implementing regulations at the request of conversion charter school operators that were threatened with loss of their facility if the teachers and community supported the transition to conversion school. Thus these very regulatory provisions are in place to prevent punitive actions by the school district when a conversion school petition is submitted to the district. The issue of a conversion charter school’s right to occupy its original school site in its first year of operation was previously litigated by our office in Ventura County. The court in MATES v. Conejo Valley Unified School District (Case No. 56-2009-00336393-CU-WM-SIM) determined that the conversion charter school at issue was entitled to occupy its original site for its first year of operation and could not be moved to a different location during its first year of operations. In reviewing the statutory and regulatory framework in the context of the Final Statement of Reasons, the court found that under this framework, “the district is required to make that site available to the charter for its first year of operation.”
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Superintendent Gill Re: Dozier-Libbey Medical High School Entitlement to Conversion School Site February 22, 2014 Page 5 of 5! !
Conclusion For the reasons stated above, DLMHS is entitled to occupy the DLMHS site in its first year of operation upon approval of its conversion charter petition and thereafter upon annual request. As a result, until such time as DLMHS has either been approved by the District or has exhausted its appeals of any District denial of its conversion charter school petition, the District may not take any action to move, displace, change, surplus, lease or otherwise encumber the DLMHS school site and thus deny the rights of the teachers, parents, students and community that support the conversion of DLMHS to charter status. *!
$! $
Please do not hesitate to contact me should you have any questions.
SINCERELY, LAW OFFICES OF YOUNG, MINNEY & CORR, LLP
PAUL C. MINNEY SARAH J. KOLLMAN ATTORNEYS AT LAW
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