Governor's team jumps into fray over contested charter school bill

Photo by Allison Shelley/The Verbatim Agency for American Education: Images of Teachers and Students in Action

Photo by Allison Shelley/The Verbatim Agency for American Education: Images of Teachers and Students in Action

John Fensterwald

July 9, 2019

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After weeks of negotiation, Gov. Gavin Newsom has stepped in to scale back proposed legislation that charter school advocates feared would radically slow charter growth.

On Wednesday, the Senate Education Committee passed Assembly Bill 1505, which included a substantial number of amendments that Newsom’s office submitted after numerous discussions between his advisers and representatives of charters schools, organized labor and the bill’s author, Assemblyman Patrick O’Donnell, D-Long Beach.  The bill was approved by a 4-3 vote.

Senate Education Committee Chairwoman Connie Leyva, D-Chino, characterized the amended bill as “the makings of a deal with the governor’s office” and said she is “cautiously optimistic’ that remaining issues can be resolved over the summer for passage in the fall.

The California Teachers Association, a co-sponsor of the bill, said it continues to back it. But O’Donnell said he will continue to press for several significant changes, particularly dealing with the process of appealing charter denials. The California Charter Schools Association said it continues to oppose the bill, saying the new amendments did not go far enough to ensure that new charter schools parents want would be approved.

Hundreds of teachers lined up to state they supported of the bill, while hundreds of charter school parents from throughout the state said they opposed it, though it was unclear whether they were speaking out on the original or amended bill. 

O’Donnell received the amendments from the governor’s office on Friday. Intense discussions are expected to continue, with the intention of passing  a bill this fall that all involved say has many moving parts.

The changes reflect Newsom’s determination to de-escalate tensions around charter school growth and find common ground on reforms. Newsom chose to intervene in a bitter fight between the California Charter Schools Association and the California Teachers Association over a bill that has gained national notice as a bellwether of the charter school movement. Earlier this year, at his urging, the Legislature expedited passage of a bill to require more transparency in charter school operations.

As originally proposed, AB 1505 would have given all school districts broad authority to reject a charter school’s application and renewal after considering the financial impact on neighborhood schools and the district. It also would have curbed a county office of education’s power to overturn a school district’s rejection of a charter school and eliminated another level of appeal to the State Board of Education. The California Teachers Association, a co-sponsor of the bill, had broadcast TV ads over the last month urging its passage. The California Charter Schools Association ran TV ads opposing the bill.

The amended version narrows the grounds for considering a proposed charter school’s fiscal impact, while giving school boards latitude to deny a charter based on other areas of potential impact. It preserves the ability of charter schools to appeal to county offices of education if their petition has been denied by a local school board, with some new conditions. It allows the State Board of Education to overturn charter denials only in cases that allege county offices and school districts ignored requirements of the state charter law.

The new version also sides with charter schools in a major tussle over a single word change — from “shall” to “may” — in the charter school law. The current law says that a school board “shall” pass a charter petition that satisfies the state’s criteria for approval. O’Donnell had replaced it with “may,” giving school boards more discretion. The new bill deleted his change.

The charter schools association had characterized the original bill as an effort to “fundamentally gut the charter schools act” and had mobilized charter school supporters against the bill. At the Senate hearing, Carlos Marquez, senior vice present for government affairs for the association, said the association continues to have “grave concerns” about the bill but recognizes that “the window has not closed” for further changes to protect charter schools.

While no longer the doomsday bill that charter groups had feared, the amended bill would broaden, as well as clarify, school districts’ authority to approve and renew charter schools. Some of the amendments incorporate the consensus recommendations of the 11-member Charter School Task Force that Newsom had asked State Superintendent of Public Instruction Tony Thurmond to convene. The task force sent its recommendations to Newsom last month.

One of the recommendations would extend the timeline for a school district to review a new charter school petition by 30 days. The task force also recommended broadening a school district’s ability to consider a charter school’s impact on a district when considering approval and renewal, including whether charter schools had reached a “saturation” point in a district.

Newsom asked Thurmond to create the task force in an effort to encourage charter school proponents and opponents to search for areas of agreement. Four charter school representatives served on the group.

The new amendments to AB 1505 would give districts more discretion to deny a charter petition than is allowed under current law.

If the bill is approved as amended, for the first time a school board would be able to consider whether a proposed charter school would be “demonstrably unlikely to serve the interests of the school district” in which it would be located based on two factors:

• Whether the proposed charter school would duplicate a program already offered by neighborhood schools;
• To what extent a proposed charter school “would substantially undermine” a district’s services, programs or academic offerings. A district could consider a charter school’s potential financial impact when weighing this factor.

San Diego Unified Superintendent Cindy Marten, who served on the charter school task force, testified at the hearing that, consistent with the principle of local control, school boards should be able to determine how a “drain of critical resources” would affect existing services. The fiscal impact of a proposed charter school matters a lot to surrounding schools, she said.

But Marquez said that the fiscal impact should not trump the academic  need in a community for a charter school. Otherwise, districts would have no incentive to improve bad schools, he said. The ability of a school district under the bill to deny a charter school because of duplication of programs ignores whether the existing school is performing poorly, he said.

Sen. Steve Glazer, D-Orinda, the sole Democrat among five on the committee to vote against the bill, pointed to the staff analysis of the bill that concluded determining fiscal impact could be highly subjective.  The staff suggested that without a clearer definition of what’s meant by “substantially undermining” programs and services, any charter school petition could potentially be denied.

The bill would create one other opportunity to broadly consider fiscal impact — though only for districts already under severe financial stress, like Oakland Unified and Inglewood Unified. A district could automatically reject a charter application if the county office of education verifies that approval would cause a district’s negative financial certification, meaning it probably would become insolvent in the current year.

Another amendment would impose a 2-year moratorium on online charter schools while the Legislature considers further regulations.

Changes to appeals process

O’Donnell’s original bill would have limited the ability of charter schools to appeal to county offices only to cases in which there had been “procedural violations” of the charter law. Otherwise, school districts would have the final say over whether to approve a charter petition.

The amended version would retain the current county appeals process with one substantive change. A charter school would not be able to make material changes to its petition when submitting an appeal. Some districts have charged that charter schools, anticipating denial by a school district, go through the motions, knowing they could change the application and seek approval by a more sympathetic county office.

The State Board of Education, which has had broad power to hear appeals of charter denials, has approved 32 charter schools on appeal since 2011, according to board records. The first version of O’Donnell’s bill would have eliminated the right to all appeals to the board. The new amendment would limit it to cases in which a county or district “abused its discretion,” meaning it violated the review process in making the decision.

Oversight over the 29 charter schools that the state board has approved would shift to the districts where the schools are located.

O’Donnell said Wednesday that he has not given up on limiting the basis for appeals to county offices. School boards, he said, know what’s best for their districts and, consistent with local control, should have the final say over charter school proposals.

Fleshing out renewals

The amended version is the first stab at rewriting the charter law’s outdated and imprecise rules for renewing a charter school’s application to continue operating. The current law, for example, still calls for using student performance on standardized tests and a school rating system that the state abandoned six years ago as the main criteria for renewal or revocation.

The amendments incorporate the state’s new school accountability system, using multiple indicators, such as suspension rates and students’ readiness for college and careers, as well as multi-colored performance ratings under the California School Dashboard.

The amendments create the framework for differentiating between well- and poorly performing charter schools. Those schools that have received state dashboard ratings of blue and green — the top two colors — for two years would go through an expedited process and could receive a renewal for as long as seven years. Currently the maximum is five years.

Charter schools that have consistently performed poorly, ­receiving red and orange ratings — the bottom two colors on the state dashboard — on a range of measures would face a heavier burden for renewal.

Such a school could get permission to operate for two years if it could make the case that it  meets an “extraordinary need” in the community and that it is meaningfully addressing the causes of its low performance. Alternative charter schools, serving primarily dropouts, expelled students and students substantially behind academically, would be exempt from the process.

Most charter schools up for renewal would likely fall in between these two extremes and be eligible for a 5-year renewal. Additional language would give an authorizer the ability to examine enrollment data in the year before renewal to make sure a charter school was not pushing out students to improve its standardized test scores and rankings on the California School Dashboard.

O’Donnell said that school districts would not be able to consider financial impact as a factor for the renewal of any existing charter school.

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