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Prop. 39: Ruling Expected on Allocation of Facilities

Prop. 39: Ruling Expected on Allocation of Facilities

SPECIAL REPORT – EDUCATION

Charter Schools, Districts Look to State Board for Guidance

BY GREG MOSER

Special to the Business Journal

Will Proposition 39 help charter schools gain access to a fair share of existing public school facilities as promised by its proponents two years ago? Or will it actually hurt charter schools by discouraging school districts from approving new charters to avoid having to share “their” facilities, and result only in endless negotiations over space allocations to charter schools that dare to ask for space?

When California voters approved the requirement for school districts to share their facilities with charter schools, they sought to help these innovative public schools overcome one of the biggest hurdles they face: Where to locate. In March, dozens of school districts across the state took advantage of the reduced threshold for voter approval of new school bonds enacted by Proposition 39, passing local bond measures with 55 percent majorities, rather than the two-thirds vote required previously.

In all, 72 of the 83 school bond measures proposed passed. Now, will charter schools also be able to take advantage of Proposition 39?

The state Board of Education considers regulations on April 25, setting out how space is to be allocated by districts. On July 1, school districts that took advantage of Proposition 39 to pass school bonds in March will be subject to the law’s space allocation rules. How quickly any charter school will receive space is anyone’s guess.

Locally, perhaps the first indication of how school districts will respond will come later this month, when the board of trustees of the San Diego Unified School District take up the request by teachers at Sherman Elementary to become a charter school this fall.


– District, Charter Schools May Have Different Needs

The concept embodied in Proposition 39 is simple: A school district is required to allocate to every charter school operating within its boundaries facilities sufficient to accommodate district students who have chosen to go to the charter school. These students should get the same amount of space in the same kind of facilities as they would if they stayed in schools run by the district.

The reality is actually more complex. First, charter schools operate differently than regular district schools, and therefore can have very different facilities needs.

They may operate longer hours or longer calendar years. They may organize students into smaller working groups, or need more flexible large spaces for hands-on learning. Nothing in Proposition 39, or the regulations, requires districts to adapt existing schools for the special needs of charter operators. In fact, many charter schools have leased or purchased space in churches, commercial or industrial buildings, and often spent thousands on remodeling to meet their needs.

Proposition 39 does not require school districts to help charter schools pay for rental or improvements to such space. So existing charter schools are forced to decide whether to ask for space that may or may not meet their needs, or continue to bear the cost of maintaining their own facilities.

In the past, school districts with overcrowded schools looked at charter schools as a potential means of expanding the school facilities available. Charter schools had to find their own space, and could use a wider variety of buildings than school districts that must meet stringent earthquake standards. They still may, but many may opt to accept space from the local district to save money.


– Competing for Funds, Facilities

Under Proposition 39, districts can’t charge rent. They can only charge a fair share of their own costs for keeping up those facilities. Those costs are expected to be well below commercial rents, in most cases, since any costs paid for by taxpayer-approved bonds can’t be passed on.

As a result, districts may see charter schools as competing not only for students, but for school facilities, as well.

Early indications are not promising for charter school advocates. Although the state Board of Education is holding hearings on the regulations this month, it has already set hearings for next month to take up how the disputes which will inevitably arise in the allocation process will be resolved. If charter schools don’t have a quick, effective means of ensuring compliance with Proposition 39, they will have trouble holding districts to their statutory obligations.

While Proposition 39 goes into effect July 1 in districts that have used it to pass local bond measures, the regulations proposed to the state board include a timeline that effectively delays when charter schools may actually get space until sometime after July 1 2003. In the meantime, most school districts are waiting to see what the state board does before adopting their own timelines and rules for space allocation, even though the law allows them to do so earlier.


– Vista District Approves Use of State, Local Funds

But some districts are setting an example of cooperation. In March, the voters of Vista Unified School District approved $140 million in bonds for new schools, one of which was expressly designed for (and partly by) the Guajome Park Academy, one of the oldest and largest charter schools in county. The charter began working years ago to design the facility using its own funds.

This spring the district was successful in getting an allocation of scarce matching state bond funds for this school. As a result, it will be one of the first new schools built by the district with both state and local bond funds.

Many knotty issues remain under Proposition 39. For example, draft regulations leave unclear who gets to control the charter school’s allocated facilities before and after school hours.

Can the charter school schedule its own extra-curricular, fund-raising and parent support activities, or does the school district get to schedule community events and business rentals in allocated space?

Are charter schools allowed to use the allocated property to operate preschools and other programs for which they charge a fee, or can the district, as the “landlord” bar such activities?

School districts and charters will need to work together to find the best means of fulfilling Proposition 39’s promise of more and better facilities for all public school students.

Moser is a partner with the law firm of Foley and Lardner.

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