Wilson v. State Bd. of Educ.

• Decision Date: 26 October 1999
• Docket Number: No. A084485.,A084485.
• Citation: 89 Cal.Rptr.2d 745,75 Cal.App.4th 1125
• Parties: Richard D. WILSON et al., Plaintiffs and Appellants, v. STATE BOARD OF EDUCATION, Defendant and Respondent; California Network of Educational Charters, Intervener and Respondent.
• Court: California Court of Appeals Court of Appeals

89 Cal.Rptr.2d 745

75 Cal.App.4th 1125

Richard D. WILSON et al., Plaintiffs and Appellants, v. STATE BOARD OF EDUCATION, Defendant and Respondent California Network of Educational Charters, Intervener and Respondent.

No. A084485.

Court of Appeal, First District, Division 4.

October 26, 1999.

Rehearing Denied November 24, 1999.

Review Denied January 25, 2000.

Lynn S. Carman, for Plaintiffs and Appellants.

Bill Lockyer, Attorney General, Stephanie Wald, Supervising Deputy Attorney General, Douglas M. Press, Deputy Attorney General, for Defendant and Respondent.

Joseph Remcho, James C. Harrison, Remcho, Johansen & Purcell, San Francisco, John E. Mueller, James R. Parrinello, Nielsen, Merksamer, Parrinello, Mueller & Naylor, Mill Valley, for Intervener and Respondent.

John H. Findley, Sharon L. Browne, Sacramento, for Pacific Legal Foundation and Pacific Research Institute as Amici Curiae on behalf of Defendant and Respondent and Intervenor and Respondent.

REARDON, J.

"Charter schools are grounded in private-sector concepts such as competition-driven improvement ..., employee empowerment and customer focus. But they remain very much a public-sector creature, with in-bred requirements of accountability and broad-based equity. Simple in theory, complex in practice, charter schools promise academic results in return for freedom from bureaucracy." (Com. on Cal. State Gov. Organization and Economy, Rep., "The Charter Movement: Education Reform School by School" (March 1996) (Little Hoover Report) p. 1.)

Charter schools are a phenomenon of the 1990's. With the Charter Schools Act of 1992,¹ California became the second state to enact charter school legislation. (RPP Internat. & Univ. of Minnesota, A Study of Charter Schools, First-Year Rep., Office of Ed. Research & Improvements, U.S Dept. Ed. (1997).) Last year, the Legislature fine-tuned the program.² Since the close of briefing, new provisions have been added.³

Troubled by what they see as a multifaceted assault on the California Constitution, appellants⁴ aim to halt the march of the charter school movement in California through a facial challenge to the Charter Schools Act and Assembly Bill No. 544. They have petitioned for a writ of mandate commanding the Board to refrain from (1) granting any charters under Assembly Bill No. 544 or the original legislation, and (2) expending any public funds in implementing those laws. Their petition has been denied. On appeal appellants roll out a slate of errors. None have merit.

I. STATUTORY FRAMEWORK

A The Original Enactment

Anyone closely allied with a public school—whether a parent or family member of a student, or a teacher, administrator or classified staff member—can attest to the perils resident in the complex tangle of rules sustaining our public school system. These include the potential to sap creativity and innovation, thwart accountability and undermine the effective education of our children.

The 1992 legislation sought to disrupt entrenchment of these traits within the educational bureaucracy by encouraging the establishment of charter schools. Specifically, it permitted the founding of 100 charter schools statewide and up to 10 in any district. These schools would be free from most state laws pertaining uniquely to school districts. Each would receive a five-year revocable charter upon successful petition to the school district governing board or county board of education, signed by a specified percent of teachers. (Former §§ 47602, subd. (a), 47605, 47607, as added by Stats.1992, ch. 781, § 1, pp. 3756-3761;⁵ § 47610.)

The original enactment set out six goals: (1) improving pupil learning; (2) increasing learning opportunities, especially for low achieving students; (3) encouraging use of different and innovative teaching methods; (4) creating new professional opportunities for teachers, including being responsible for the school site learning program; (5) providing parents and students with more choices in the public school system; and (6) holding schools accountable for measurable pupil outcomes and providing a way to change from rulebased to performance-based accountability systems.⁶ (Former § 47601.)

Charter schools nonetheless were—and are—subject to important restraints: (1) they must be nonsectarian in their programs, admission policies, employment practices, and all other operations (former § 47605, subd. (d) [now § 47605, subd. (d)(1) ]); (2) charter schools cannot charge tuition or discriminate against any student on the basis of ethnicity, national origin, gender or disability (ibid.); and (3) no private school can be converted to a charter school (former [and current] § 47602, subd. (b)).

The petition to establish a charter school was, and is, a comprehensive document which must, among other items, set forth (1) a description of the educational program; (2) student outcomes and how the school intends to measure progress in meeting those outcomes; (3) the school's governing structure; (4) qualifications of employees; (5) procedures to ensure the health and safety of students and staff; (6) means of achieving racial and ethnic balance among its students that reflects the general population within the territory of the school district; (7) admission requirements, if applicable; (8) annual audit procedures; (9) procedures for suspending and expelling students; and (10) attendance alternatives for students who choose not to attend charter schools. (Former § 47605, subd. (b) [now § 47605, subd. (b)(5) ].)

Under the 1992 scheme, upon receiving a duly signed charter petition and convening a public hearing on its provisions, the school district had discretion to grant or deny the charter. (Former § 47605, subd. (b).) The granting of a charter exempted the school from laws governing school districts except, at the school's option, provisions concerning participation in the state teacher's retirement system. (Former §§ 47610, 47611.) Denial of a charter could trigger procedures for reconsideration, at petitioner's request. (Former § 47605, subd. (j)(1), (3).)

Charter schools were, and are, required to meet statewide performance standards and conduct certain pupil assessments. (Former § 47605, subd. (c) [now § 47605, subd. (c)(1) ].) The chartering authority could, and can, revoke a charter for various deficiencies including charter or legal violations and failure to meet student outcomes. (Former [and current] § 47607, subd. (b).)

B. AB544

AB 544 substantially revamped the 1992 enactment. Gone is the cap of 100 charter schools, replaced with a 1998-1999 school year cap of 250, with 100 more authorized each successive school year. (§ 47602, subd. (a).)

Gone too is the exclusive reliance on teacher signatures to start the petition process. Now, a petition is valid if signed by the number of parents/guardians equal to at least half of the estimated students, or the number of teachers equal to at least half the teachers expected to be employed. (§ 47605, subd. (a)(1).) The petition must display a statement that the signator is "meaningfully interested" in sending his or her child to, or teaching at, the charter school, as the case may be. (Id., subd. (a)(3).) Petitions for the conversion of an existing public school to a charter school must be signed by at least half of the permanent status teachers currently employed at the school. (Id., subd. (a)(2).)

Gone also is the broad discretion in granting or denying a charter. Now, following review of the petition and the requisite public hearing, the governing board of the district "shall not deny a petition" unless it makes written findings of fact that: (1) The charter school presents an unsound educational program; (2) petitioners are "demonstrably unlikely" to succeed in implementing the program; or (3) the petition lacks the required signatures, affirmations or descriptions of program particulars. (§ 47605, subd. (b).) If the school district nonetheless denies a petition, the petitioner can submit to the county board of education or the Board. (Id., subd. (j)(1).) Additionally, petitioner can submit directly to the county board of education for a charter school that would serve pupils otherwise directly served by the county office of education. (§ 47605.5.)

As well, the amendments permit a charter school to operate as a nonprofit benefit corporation, with the school district granting the charter entitled to one representative on the board of directors. (§ 47604, subds. (a), (b).)

Now, the Board itself, upon recommendation of the Superintendent of Public Instruction (Superintendent), can take "appropriate action," including revoking the charter of any school, if it finds "[g]ross financial mismanagement" (§ 47604.5, subd. (a)); "[i]llegal or substantially improper" use of funds (id., subd. (b)); or that "[substantial and sustained departure" from successful practices jeopardizes the educational development of the students (id., subd. (c)).

Other new provisions include the following: (1) No funds will be given for any pupil who also attends a private school that charges his or her family for tuition (§ 47602, subd. (b)); (2) all charter school teachers must hold a Commission on Teaching Credentialing certificate or equivalent (§ 47605, subd. (I)); (3) petitioners must provide the chartering authority with financial statements that include a proposed first-year operational budget and three-year cash-flow and financial projections (id., subd. (g)); (4) charter schools must use generally accepted accounting principles in conducting the required annual financial audits, and any exceptions or deficiencies identified during the audit must be resolved to the satisfaction of the chartering authority (id, subd. (b)(5)(D).

Concerning accountability, charter schools must "promptly respond to all reasonable inquiries" from either the chartering authority or the Superintendent. (§ 47604.3.) Additionally, the chartering authority can "inspect or...