School districts have to share the buildings they own with charter schools. The two compete for students, so districts may not like giving away their space. But it’s the law.

Unfortunately for charter schools in San Diego Unified, the school district hasn’t been abiding by the terms of it.

After a years-long legal battle between Los Angeles Unified and the California Charter Schools Association, the California Supreme Court ruled in April that L.A. Unified was improperly counting classrooms, which, CCSA argued, short-changed charter students. Moving forward, L.A. Unified must revamp the way it divvies up space.

San Diego Unified now needs to do the same, because it counts classrooms similar to the way Los Angeles Unified does. The end result could open up more space to charters.

That would be good news for the local charter school community. Especially in cash-strapped early years, it can be financially impossible for charters to purchase their own buildings. And without a school, it’s more difficult to attract parents, build enrollment and bring in the funding that follows students. It’s a chicken-and-egg dilemma.

Under the terms of Prop. 39, which voters passed in 2000, charters are entitled to use district facilities, even if a neighborhood school currently occupies part of that space.

Neighborhood schools actually share buildings with charters on six San Diego Unified campuses. It’s a situation known as co-location, which can create strange bedfellows. Paired schools can be at out of sync philosophically, sparking tensions typical of any roommate situation.

That would be less of an issue if schools simply had their own facilities. But there are only so many classrooms to go around, and the district is the one that doles them out.

The process by which districts allocate space to charters is complicated. But a key piece to understand is language in the law that says charter school classrooms must be “reasonably equivalent” to the ones students would have if they attended their neighborhood schools.

Reasonably equivalent, here, refers to both to the quality and the kind of resources available. If a neighborhood school has a gym, for instance, students at a comparable charter school would also have access to gym.

But more importantly, size has to be comparable. And this where we find the hang-up.

If a charter school wants to take advantage of district facilities, it sends a request to the school district. District staff looks at the number of district students planning to attend that charter, and notes which neighborhood schools they’d otherwise attend. These schools are referred to as “comparison schools.”

District staff then looks at class-size ratios at those comparison schools (the number of students divided by the number of classrooms) and finds facilities that can fit in a charter at the same class-size ratio. That’s the way it’s supposed to be done, under the terms of Prop. 39.

Instead, what San Diego has been doing – and what the state Supreme Court found to be unlawful in the case against Los Angeles Unified – is using average student-teacher ratios districtwide to determine how much room is available for charters.

The problem is that, in reality, student-teacher ratios vary by individual school. And just because one school has a low student-teacher ratio doesn’t mean charter schools will use the classrooms in the same way. This has the potential to stiff charter school students on classrooms. And it’s not how the law says it’s supposed to work.

San Diego Unified spokesperson Ursula Kroemer said the district will change the way it counts classrooms moving forward, but said the recent Supreme Court decision applies only to future cases. In other words, until now the district has been allocating space to charters in accordance with the law.

Ricardo Soto, general counsel for CCSA, disagrees.  He said the district has been using an outdated legal precedent to determine the way it counted classrooms. That would mean San Diego Unified has been operating outside the law for the past two years.

Soto can’t say how much additional space the change will mean for local charters because CCSA doesn’t have access to all the district’s information on space that could become available. But he’s optimistic that the change will open up significantly more room.

Miles Durfee, CCSA’s regional director, said a handful of charters in the district haven’t even requested facilities from San Diego Unified because they were confident they wouldn’t be offered enough space, or space that would work for them.

Durfee too is hopeful the coming change will lessen the strain for charters that currently exist and create opportunities for those that want to open in the future.

“There’s always going to be need for facility space,” Durfee said. “Remember, part of the reason that Prop. 39 passed in the first place was because the public felt all schools should have access to facilities. If districts aren’t following the terms of that law, it’s harder to make sure that’s actually happening.”

Mario was formerly an investigative reporter for Voice of San Diego. He wrote about schools, children and people on the margins of San Diego.

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