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San Diego County has been ground zero for legal fights over where charter schools can open satellite campuses, or so-called resource centers.

At least six school districts in San Diego County have filed suits or entered into litigation to stop charter schools from infiltrating their boundaries. A number of other districts have sent cease-and-desist letters but haven’t yet filed suits.

It’s a complicated issue that comes down to lack of clarity in the state’s Education Code: The code says charter schools that offer independent study programs can open in counties that neighbor their home base, but doesn’t specifically say they can operate resource centers in nearby school districts.

Local school districts, and the attorney who represents them in these cases, take that to mean charter schools need to get approval to open resource centers in nearby districts.

California Charter Schools Association says that’s a narrow and unreasonable interpretation of the law: If charter schools can open resource centers in nearby counties, of course they could open and operate resource centers in nearby districts.

Last week, the state Board of Education gave Audeo II, a charter school in San Diego, the right to open multiple resource centers in neighboring school districts.

CCSA says the decision supports the interpretation it’s had all along. Charter school advocates hope this is a sign of positive changes to come. At the very least, it indicates that the state Board of Education takes a more permissive view toward charters than local school districts are taking. San Diego Unified and Grossmont Union High School District have each filed suits against charter schools, arguing that charters have skirted rules and sneaked into their boundaries in order to turn a profit. And they’ve been willing to spend time and resources fighting the cases.

Grossmont Union paid Dannis Woliver Kelley, the law firm that has helped litigate the case, more than $100,000 last year, according to information provided by the district. San Diego Unified declined to provide information about how much it spent without a public records request, but Sarah Sutherland, the DWK attorney who’s taken the lead on behalf of school districts, said San Diego Unified has paid her firm about $65,000 to litigate the matter.

To CCSA, school districts are concerned about dwindling enrollment and are using the legal system to shut down charters so they don’t lose more students and the money that’s tied to them.

Anxiety over charter school expansion is about as old as charter schools, which California has allowed since 1992. Charter schools are public schools that have been given extra flexibility and autonomy from the school districts that “authorized,” or approved them.

By the early 2000s, both sides recognized the lack of clarity about where charter schools can open and operate resource centers had created a problem. Charter schools were opening campuses hundreds of miles away from the districts that approved them and provided oversight. The distance between charter schools and the people tasked with oversight ushered in new problems. Money was mishandled. Student records went missing.

AB 1994, passed in 2002, tried to set reasonable geographic restrictions for where charter schools can open resource centers: They could open them both in their home counties and in nearby counties that share a border, the law established.

But the law wasn’t only intended to rein in charter schools. It also recognized that some school districts are simply hostile to charter schools and don’t want them in their districts. So the law also modified an appeals process for charter schools. If school districts don’t approve a charter’s petition, charters can appeal the decision to county boards of education and then to the state. Whichever board approves the charter then becomes responsible for providing oversight.

In 2002, the San Jose Mercury News’ editorial board said the bill “would bring sensible oversight.”

But in recent years, local school districts have argued the law doesn’t go far enough and allows too much space for abuse. They point to local examples of shady behavior.

There’s a pressing need to figure it out. According to CCSA, there are 279 independent study charter schools in California, serving 149,433 students. In San Diego County, there are 43 independent study charter schools serving 25,542 students.

Relevant cases are pending statewide, including one case in Shasta County that could set a precedent and clarify the issue. But the scope of the legal fight against independent study charter schools and their satellite campuses is unique to San Diego County.

Each side argues the other is driven by profit instead of what’s best for kids. The conversation is so loaded that it’s easy to lose sight of the actual legal point in dispute. So let’s unpack it.

What Is an Independent Study Program?

Independent study charter schools aren’t new. Since 2001, San Diego Unified has authorized Audeo Charter School to open resource centers throughout the county. That changed about a year ago, when San Diego Unified told the charter school it needed to find a new authorizer to approve and oversee its out-of-district resource centers.

So Audeo petitioned to open a new charter school, Audeo II, and submitted it to Carlsbad Unified, in whose district they planned to open a resource center. Carlsbad Unified promptly shot them down. On appeal, the County Board of Education supported Carlsbad Unified’s denial.

Audeo II then appealed to the state Board of Education, which approved the petition and gave permission to open five resources centers throughout the state.

Independent study charter schools cater to non-traditional students who for various reasons don’t want a traditional school schedule. These might be students who are at risk of dropping out, recent arrivals to America, young mothers or students who travel a lot.

Charter schools that offer independent study programs say resource centers help serve students close to where they live. And because students come from all over the county to attend charter schools, it makes sense there would be multiple resource centers.

Resource centers, which you may see in a mall or office building, are small centers that might look like a computer lab. Resource centers cannot act as standalone schools. Students can’t spend more than 80 percent of their instructional time in the resource centers. Students can receive support and complete work at resource centers, but can’t study there full time.

Not to say this rule has not been tested. Endeavor Academy, which San Diego Unified sued to shut down, was authorized by Alpine Union School District. Among other problems, Endeavor was operating resource centers as if they were schools. Students spent more than 80 percent of their time there.

CCSA said concerns over Endeavor were legitimate, and for that, it didn’t advocate intensely on the school’s behalf.

Traditional charter schools and independent study charter schools have distinct funding models. Brick-and-mortar charter schools, which are also known as “seat-based” charter schools, receive funding from the state based on average daily attendance — the same way traditional public schools receive funding.

Independent study charter schools, on the other hand, are considered “non-seat based.” These programs get funding based on student work and progress. Teachers are assigned to students, teachers assign work, assess assignments, then store them for auditing purposes. In other words, non-seat based charters need to prove students are receiving services before they get funding.

The Point of Contention

Both sides agree that charter schools can open and operate resources centers in neighboring districts. They disagree on what, exactly, needs to happen before charters can legally do that.

State Education Code says that traditional charter schools trying to open or operate schools in another district must first get permission from the district they’re moving into.

The law is less clear about what needs to happen for charters that offer independent study programs. Ed Code says charters can operate resource centers in nearby counties, but doesn’t deal specifically with what they need to do to open in a nearby district.

Here’s the key piece of Ed Code:

“Notwithstanding any other law, a charter school may establish a resource center, meeting space, or other satellite facility located in a county adjacent to that in which the charter school is authorized if the following conditions are met: (1) The facility is used exclusively for the educational support of pupils who are enrolled in non classroom-based independent study of the charter school. (2) The charter school provides its primary educational services in, and a majority of the pupils it serves are residents of, the county in which the charter school is authorized.”  

Miles Durfee, regional director for California Charter Schools Association, said it wouldn’t make sense that charter schools can operate resource centers in a nearby county, but not in a nearby district.

Sarah Sutherland, whose law firm represents San Diego Unified and Grossmont Union High School District, counters that charters schools are “creatures of statute” and are bound by what Ed Code specifically says they can do.

In other words, because Ed Code doesn’t specifically say charter schools can open resource centers in nearby districts without permission, they can’t legally do it.

Each side wants clarity in the law. And in the absence of a clear decision by a governing body, the dispute is being hashed out in courts.

How This Will Be Resolved

The state Board of Education’s decision to approve Audeo II doesn’t resolve the issue completely, but it does mean that the state Board of Education favors CCSA’s more permissive interpretation of where charter schools can open resource centers.

The case that’s perhaps more relevant is unfolding in Redding, where Anderson Union High School District sued Shasta Charter Academy after it opened a resource center within Anderson boundaries.

The judge in that case sided with the charter school. Anderson school districts appealed the decision, and oral arguments before the 3rd District Court of Appeal will begin in late August. If the appellate court upholds the decision, the case could set a precedent and provide clarity for how school districts will handle this situation in the future.

If the lower court’s decision is overturned, San Diegans are likely to see more of the game of whack-a-mole that’s under way — charter schools will open resource centers, and districts will take legal action to stop them.

Until precedent is set through the courts, or the California Department of Education takes a firm stance on the matter, it’s doubtful the two sides will meet in the middle. And both sides will continue to spend a lot of time and money that could otherwise be spent in classrooms.

VOSD staff writer Mario Koran is also a fellow at New America California.

Mario Koran

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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