Judge skeptical of charter school challenge to new LAUSD campus-sharing policy

LOS ANGELES (CN) — A Los Angeles County Superior Court judge said Tuesday he didn’t see anything wrong with a new LA Unified School District policy of shielding certain public schools from having to share their campuses with charter schools.

The judge denied a motion for a preliminary injunction, filed by the California Charter Schools Association, which would have blocked the policy set to go into effect on Nov. 1. But he also declined to dismiss the case, finding the case had enough merit to make it to a bench trial, scheduled for April.

“It seems to me the better way to approach this is to wait and see what LAUSD does under this policy,” Judge Stephen Goorvitch said in court, although he made clear that he thought the policy is likely legal. “The law is very clear: districts are allowed to consider various factors when deciding which schools to use for colocation.” Individual charter schools, he added, could still sue the school district if they the thought they were being illegally denied space on certain campuses.

“If LAUSD violates Prop 39, charter schools can come at that point,” Goorvitch said. “Then we’re looking at something a lot more tangible.”

Charter schools are public schools funded with taxpayer money but exempt from many of the rules and regulations that normal public schools must adhere to. They may, for example, hire non-union teachers, or admit students based on a lottery, or mandate that their students wear uniforms to school.

In the 32 years since their creation in California, debate has raged over them. Their defenders say they lead to better outcomes for students, particularly for low-income students of color, and that they drive innovation by forcing public schools to compete with them on quality and on offering different choices for parents. Their opponents, lead by the teachers union, decry charter schools for draining kids away from school districts, particularly the students with the most active and engaged parents. The idea of market-based competition, to some, is antithetical to the premise of public education.

Nowhere is the discourse around charter schools more divisive than the issue of colocation. It is relatively cheap to start a charter school, with one notable exception: the campus, which costs tens of millions of dollars to purchase land and construct buildings. The 1992 California law that created charter schools entitles them “to use, at no charge, facilities not currently being used by the school district for instructional or administrative purposes, or that have not been historically used for rental purposes.” In other words, leftover bits of campuses. As students began to leave school districts — bound for other states, charter schools or public schools — which facilities were not “being used” became the subject of an increasingly tense debate.

In 2000, California voters passed Proposition 39, which forced school districts to share their space with charter schools, the numbers of which grew and grew. Today, in Los Angeles, there are some 246 charter schools serving more than 100,000 kids — roughly 1 in 5 of all public school students within the LA Unified School District.

The California Charter Schools Association, an advocacy group, has sued LAUSD numerous times for violating Proposition 39. In 2015, the state supreme court ruled, unanimously, that the district had not been abiding by the law in the way it was sharing space with charter schools.

In February, the seven-member LAUSD Board of Education voted 4-3 to enact a new policy around colocation, the exact effect of which is still the subject of debate. The Charter Schools Association says it effectively excludes 350 of 784 campuses from being shared. The policy applies to schools that have designated programs to help Black students, schools with low test scores and “community schools,” which offer services to surrounding community beyond education.

The district has said that the new policy is really just a set of guidelines for how to prioritize which campuses will be shared, and includes the phrase “as operationally feasible and permitted by law” — not a complete ban, they say, just a set of priorities. On this point, the judge said he agreed with the school district.

“I’m not sure it’s a ban,” Goorvitch said. “The way I read the policy, if they have no choice, they’ll give you one of the campuses. But to the extent that there multiple sites available to charter schools, to the extent that LAUSD has choices, LAUSD is going to consider these factors in deciding which facilities to allocate to those charter schools.”

“I’m not sure the school board would agree with that interpretation,” said Winston Stromberg, a partner at Latham & Watkins, representing the Charter Schools Association. He suggested that public statements made by the four school board members who voted for the resolution, all of whom are supported by the teachers union, make it clear that they thought they were voting for an outright ban.

The new policy was praised by the LA teachers’ union, and decried by the California Charter Schools Association, which promised to sue and did so in April, calling the new policy “an untenable breach of its entrusted public responsibility as an agent of public resources to deliver educational services, including facilities.”

“LAUSD’s unlawful policy is a blatant and facial violation of LAUSD’s mandatory obligations under Prop 39,” the Charter Schools Association wrote in its complaint. “By prioritizing public school students attending district-run schools over public school students who attend charter public schools, the policy violates Prop 39’s clear legal mandates.”

The school district’s attorneys have argued that the complaint should be thrown out because it isn’t ripe yet — that is, no harm has been caused by the new policy. Goorvitch didn’t quite agree with that, but he did think that it was premature to issue a preliminary injunction. He also said that he couldn’t see how the issue would change when it came time for trial.

“I feel like we’re just gonna be back here in [five] months where I’m just going to say the same thing,” Goorvitch said.

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