A Superior Court judge in Alameda County has thrown out the State Board of Education’s approval for Aspire Public Schools to open charters throughout the state, bypassing local school districts. Judge Jo-Lynne Lee has given Aspire a year to obtain local charters for the half-dozen schools it now operates under the State Board’s authority.

Lee’s 29-page ruling, issued last week, is a win for the three Education Coalition groups suing the State Board over its discretion to issue a “statewide benefit charter,”  a type of charter that can be granted to an effective organization that can prove its schools will provide a distinct value to the state. The State Board has granted a statewide benefit charter to three charter organizations – Aspire, High Tech High, and Magnolia Public Schools. (Of the three, Magnolia, which is being investigated in other states for its ties to the Gulen movement in Turkey and alleged hiring preferences for Turkish teachers, is the most controversial.)

The California School Boards Association, the Association of California School Administrators, and the California Teachers Association, worried that a lot more charters would see a statewide charter as an end-run around local control, sued the State Board over the statewide approval to Aspire in 2007 for 20 additional schools. They argued that the Legislature intended statewide benefit charters to be granted very rarely and only to statewide organizations like the California Conservation Corps for students whose needs aren’t otherwise met.

In 2010, a state Appeals Court agreed that state law clearly intended for local districts to issue charters for students they’d otherwise serve, and that there should be a high threshold for a statewide charter. There should be a two-step process for issuing one: The State Board must determine first that there is statewide instructional benefit, and then that it can’t be provided under local charters. Administrative efficiency alone – the financial advantage of dealing with one overseer instead of a dozen or more local districts – doesn’t qualify for a statewide benefit charter.

In light of the Appeals Court decision, a new State Board, appointed by Gov. Jerry Brown, issued new rules for defining a statewide benefit charter and, earlier this year, again granted Aspire’s revised application.

While Judge Lee ruled that Aspire still hadn’t made a persuasive case for a statewide benefit charter, she also didn’t buy the very tight restrictions that the Ed Coalition groups had sought.

Benefit in lowered bond costs

Aspire’s effectiveness was not an issue; with high test scores and impressive college acceptance rates, its 34 schools are meeting its mission of preparing low-income, minority students for four-year colleges. The ed groups argued that Aspire’s academic programs were identical for the six schools with a statewide benefit charter and the 28 other locally chartered Aspire schools, so there was no advantage justifying a statewide charter. All should be district-chartered.

But Judge Lee disagreed, saying, “The fact that the education program is not different from that offered by a local charter is not a disqualifiying factor” (her emphasis). Having a track record of success is a prerequisite for a statewide benefit charter, so it stands to reason that the educational program would be similar. To the contrary, state law permits the State Board “to employ a broad, non-exclusive set of criteria in assessing a statewide benefit.”

Aspire said that the statewide benefit it received in 2007 enabled it to overcome a chief obstacle to serving more students: facilities. Although legally entitled to equivalent school buildings, charters often battle futilely for them with districts. With a statewide benefit charter, Aspire said it was able to issue $93 million in bonds to renovate or build ten schools, including five chartered by the state. Bond rating agencies viewed charters from the State Board less risky, translating into a  $1.7 million savings in lower interest rate payments over ten years, Aspire CEO James Willcox told the State Board. (The State Board granted a statewide benefit charter to High Tech High at the same meeting based on a similar facilities argument. Both Aspire and High Tech High offer a teacher credentialing program for their future teachers – another distinct benefit cited in their petitions.)

Judge Lee bought the rationale, but she wasn’t persuaded that the statewide benefit charter was the factor that made the difference. The lower interest rate could have been attributed to Aspire’s large size or bond agencies’ view that Aspire is well-run. (Bond raters lowered the rating on the Aspire bonds last week after the court issued its ruling throwing out the statewide benefit charter – perhaps evidence, in retrospect, that Aspire had a point.)

The State Board has the option of appeal. Meanwhile, Aspire has begun submitting charter applications for the six schools located in three districts: Sacramento, Stockton, and Huntington Park. In deference to the families that expect to send their children to school this fall, Judge Lee has given Aspire until next June to obtain charters – enough time to appeal denials to the Aspire-friendly State Board. The six schools serve 16 percent of Aspire’s students – about one out of six.

Aspire is expressing confidence. It hasn’t had a charter shot down in 60 charter or charter renewal applications, Aspire said. Two of the six recently were named California Distinguished Schools.

John Fensterwald is now the editor of EdSource Today. Please contact him at jfensterwald@edsource.org.




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  1. Sherry Griffith 11 years ago11 years ago

    John: Encourage you to seek thoughts from the petitioners if you do any follow up articles. Please go to our website for our statement on the case at acsa.org


  2. Navigio 11 years ago11 years ago

    The way this ruling is worded it feels like it's only a matter of time. The judge even admitted there was a financial benefit to reducing the patchwork quilt of local regulators. The problem seems to be that it wasn't shown that the financial benefit had enough impact on the educational output to disqualify it. So it seems if it they were able to make this connection (which might not be too hard given the … Read More

    The way this ruling is worded it feels like it’s only a matter of time. The judge even admitted there was a financial benefit to reducing the patchwork quilt of local regulators. The problem seems to be that it wasn’t shown that the financial benefit had enough impact on the educational output to disqualify it. So it seems if it they were able to make this connection (which might not be too hard given the discussion about the role of funding in education today), or if the law were changed slightly, or if a judge with a slightly different take on that relationship were to have presided (which obviously may happen on appeal), that the result could be quite different. Judge also admitted it would be pretty much impossible to deny any charter claim based on that criteria (so the end-around fear is clearly justified). 
    Perhaps in an ironic (and cynical) twist, if it could be shown the charters were actually underfunded by the state, that might even contribute to a statewide benefit (though that would also require proving that which I think would be pretty difficult to prove given the rates of encroachment in traditional public school funding). 
    Regardless Adam Smith’s hand looms large in this ruling. Against that, armed with intense scrutiny,  extensive discussion and even ‘public’ policy backing, we generally remain powerless. 
    It will be interesting to see whether there is an appeal and/or whether the financial benefit claim is modified.