SBE pulls Prop. 39 charter facility rules

Charter school facility requests will continue to be governed by existing regulations for the 2008-09 school year following the state Board of Education’s decision to withdraw controversial new rules that it had submitted to the Office of Administrative Law for review.

SBE adopted the regulations May 10 over the determined objections of CSBA, its Education Legal Alliance, the Association of California School Administrators, the California Teachers Association, the California Association of School Business Officials and others. Opponents argued that a number of the new regulations—the latest in a series of changes undertaken to implement Proposition 39, passed by votes in 2000—fall outside of the state board’s legal authority and create undue hardships for districts in violation of state law.

SBE then submitted the regulations to the Office of Administrative Law, which reviews state agency regulations before they can become law. OAL is responsible for ensuring that regulations are clear, necessary, legally valid, and properly publicized to facilitate compliance.

However, SBE reportedly withdrew the regulations Aug. 24—just days before OAL was expected to complete its review. The move indicates that SBE must amend the new rules to satisfy OAL’s mostly undisclosed concerns, according to Education Legal Alliance Director Richard Hamilton, and any substantive changes trigger a further 15-day comment period ending after Oct. 1. Charter school facility requests for the 2008-09 school year must be made by Oct. 1 of this year, however, so the new process apparently will not be effective until the 2009-10 facilities request cycle. Gary Burden, SBE’s assistant executive director, confirmed that the delay will prevent the revised regulations from taking effect for the 2008-09 school year.

 If the new regulations are amended to address CSBA's concerns, the delay may stave off a lawsuit by the Education Legal Alliance, which threatened to fight the regulations in court, if necessary, to safeguard the interests of school districts against undue burdens that the new rules would have imposed.

Regulations’ deficiencies summarized
The limited timeline for districts to review and process charter schools’ facilities requests under the now-withdrawn regulations would have been particularly onerous, posing a hardship for districts with limited staff, Hamilton noted. Multiple requests for facilities would have aggravated the burden for many of those districts. Concerns also focused on provisions limiting districts’ ability to move “conversion” charters (public schools that are transformed into charters) from one facility to another, especially for districts forced to close schools and reconfigure facilities to deal with declining enrollment.

Opponents proposed constructive alternatives, but they were rebuffed by SBE.

“We have spent an inordinate amount of time on this issue with SBE and California Department of Education staff,” CSBA Senior Policy Analyst Stephanie Farland told the state board May 10. “Even more importantly, districts are spending an inordinate amount of effort on these facilities requests already. Ninety-eight percent of public school students have chosen to stay in traditional public schools. With these new regulations, we are dangerously close to making regulations that favor the 2 percent over the 98 percent.”