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A Charter School Co-Location Debacle

Armed with a state override of its rejected application, Promise Academy filed a new request. Then came the lawsuits.




charter schools
Photo courtesy San Jose Unified School District

For months in San Jose, California, Promise Academy, a new charter school projected to enroll a couple hundred students, had been gearing up to launch for the 2019-2020 school year. But when the school should have been opening its doors, it still didn’t have a building. Promise Academy blamed the false start on the San Jose Unified School District, where it had planned to rent space. The district, which serves more than 30,000 in 41 schools, claimed that Promise Academy knew well in advance the steps needed to secure the space, and that it didn’t follow through. The resulting drawn-out dispute between Promise and SJUSD would come to illustrate the complex balance of power between charters and school districts, how even small charters can leverage outsized litigation power and why these conditions might be changing.

Under Proposition 39, which voters passed in 2000, public school districts are required to provide classrooms and facilities to charter schools operating within their boundaries. However, prospective charters must first prove that they have satisfactory educational platforms and sufficient interest from students and families by gathering signatures and submitting a petition to the district.

School District: “We work with a lot of charter schools and have never had this level of difficulty with an operator before.”

When Promise Academy first submitted a petition in 2017 to establish a K-12 charter school for the 2018-2019 school year, “It was San Jose Unified’s determination that [Promise Academy was] not offering a sound educational program and unlikely to implement it successfully, in large part–but not entirely–because the high school program that they were proposing was inconsistent with many aspects of the education code,” Ben Spielberg, a spokesperson for the district, told Capital & Main.

Instead of revising and resubmitting its petition, Promise appealed its original request’s rejection to the Santa Clara County Board of Education, and later to the State Board of Education, which also found serious problems with the proposal. However, rather than rejecting Promise’s petition, the state board made material changes to it by scrapping the problematic high school component and giving Promise permission to open as a TK-8. The move triggered a lawsuit from SJUSD, challenging the state board’s authority to approve or reject charter petitions. “The [State Board of Education] has been repeatedly advised of the impropriety of approving charter petitions in a form different than presented to the lower administrative agencies but has consistently disregarded this directive,” the district’s opening brief alleged.

Spielberg pointed out that offering transitional kindergarten through 12th grade was one of Promise’s main selling points, and that because of the state board’s changes, the approved version of Promise had little in common with the one SJUSD had originally reviewed. “If [Promise Academy] wanted to come back and propose a TK-8 program, that would have been a totally different story and we would have evaluated that petition on its merits,” said Spielberg. Promise Academy representatives did not return requests for comment.

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Armed with the State Board of Education’s approval, Promise Academy filed a request under Prop. 39 to run its K-8 program at an SJUSD facility. When the district disputed whether Promise had the minimum number of “meaningfully interested” students to meet Prop. 39 requirements, Promise sued. The judge sided with Promise, requiring SJUSD to offer up space to the charter.

However, the back and forth between Promise Academy and the district continued. SJUSD offered Promise Academy facilities for the 2018-2019 school year, but Promise wasn’t satisfied with the offer’s location and opted to wait for the next school year. Then, when it came time to tell SJUSD how many classrooms it needed for the 2019-2020 school year, Promise requested to have until August 1 to decide–a request that the district told Promise it could not accommodate.

With key paperwork still missing and student body numbers fluctuating on July 31, the district says Promise tried to push negotiations into August, missing the longstanding deadline. It was around that time Promise received official notice that the academy wouldn’t have space at the district for the fast-approaching school year. However, Spielberg says Promise had known for months that it needed to accept SJUSD’s offer to secure the academy space. “We work with a lot of charter schools in San Jose Unified, and have a very consistent and clear process for how we work with them, and have never had this level of difficulty with an operator before,” said Spielberg.

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When news that Promise would not open for the 2019-2020 school year went public, the district faced backlash in local media from parents left scrambling for a new school and from San Jose’s Democratic Mayor Sam Liccardo, who supported the charter. “Rather than continuing to seek every possible roadblock,” Liccardo said, “San Jose Unified officials should recognize that Promise Academy can become both a great asset to our city and a pathway to opportunity for San Jose’s children.” However, from SJUSD’s perspective, Promise Academy’s unwillingness to commit to a lease presented a drain on district resources, with Spielberg calling the situation, “a big opportunity cost.”

Although the State Board of Education had approved Promise Academy for a five-year term, it also gave Promise a deadline of September 30, 2019 to have a school up and running. On October 1, the state board officially terminated Promise Academy’s charter authorization.

In addition to the disputes over facilities and litigation that made Promise Academy particularly troublesome for SJUSD, studies have shown that charter schools in general reduce funding for public school districts–a major reason why districts could benefit from having more authority over which charters are approved to open.

According to charter school critic Jeff Bryant, director of the Education Opportunity Network, charters are funded on the premise of portability. “In a charter school district that includes choice charters, each student is assigned a per-pupil cost. And when a student goes from one school to the other, that cost travels with him or her in terms of becoming the revenue that that school is going to get,” Bryant told Capital & Main. Bryant says that when public schools lose too many individual students, the funding pool shrinks and the system becomes less robust, forcing districts to cut nonessential services. According to a 2018 study called “Breaking Point: The Cost of Charter Schools for Public School Districts,” charter schools caused the Oakland Unified School District a “net fiscal shortfall of $57.3 million” for the 2016-2017 school year.

With newly passed California legislation, school districts may soon exercise more power to veto new charter schools. Assembly Bill 1505, which was signed into law by Governor Newsom last week, makes several changes to laws around charter schools, including moving to increase the power of local authorities when determining whether new charters should be allowed to open. While the bill also reduces the frequency with which high performing charters need to apply for renewal, public school advocates are optimistic. “I think there are some elements that help local jurisdictions manage and navigate, and have a little bit more ability to monitor the charter schools that are operating within their jurisdiction. I think that’s a really positive potential development,” said Spielberg.

One thing that AB 1505 also does is help secure a longterm future for charter schools in California’s educational landscape, which means that charters and public schools will have to continue to coexist. According to Bryant, “Charters were originally conceived to be laboratories to try out new ideas that could then be incorporated into the district schools.” Today, the function of charter schools is couched in terms of parental choice. However, Bryant says, “This isn’t about what each parent should do. This is about the best public policy for all children.”

Copyright Capital & Main

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