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Models of Districts Providing School Facilities
Among those places with charter school legislation, California, Colorado, and Washington, D.C. (the District), appear to have significant numbers of charter schools housed in district space, according to the advisory group for this guide. Taken together, these three jurisdictions illustrate variation in how policymakers have structured this policy approach. Some of the common questions they have had to consider in developing their policies are whether districts should be required or merely encouraged to provide facilities for charter schools; whether any requirement to provide space should only hold true if a district has excess space; and whether districts should be allowed to charge rent.
Encouraging or Requiring: Various Approaches to Access to Facilities
Both California and the District have strongly worded laws that, under certain conditions, require school districts to provide facilities or give facilities preference to charter schools operating within their jurisdictions. In California, Proposition 39, approved by state voters in 2000, requires districts to provide any charter school that serves a minimum of 80 district students with facilities that are "sufficient" in size for the school's enrollment and "reasonably equivalent" to the buildings or classrooms of students attending other public schools in the district.66 The rationale underlying the proposition is that districts have already received state funding to build facilities for these students. Even if a district has no excess space available, Proposition 39 requires that the district provide charter schools with facilities unless it would have to "use unrestricted general fund revenues to rent, buy, or lease facilities for charter schools."67 The measure also requires that these facilities remain the property of the district and that they be "contiguous, furnished, and equipped." This means that a charter school must be located on a single site if possible; that when it is necessary to put a school on multiple sites, the sites be as near to one another as possible; and that the facilities given to a charter school contain all of the furniture and equipment necessary for classroom instruction.68 Additionally, districts are obligated to make reasonable efforts to provide facilities that are near where a charter school wishes to locate and, once a charter school has been located in district facilities, a district is not to move it unnecessarily.69 Caprice Young says there are no statewide data on how many California charter schools are housed in district facilities, but she estimates that as many as 40 percent of the state's charter schools are located in district-owned buildings.
Although the original charter school law in the District (i.e., the School Reform Act of 1995) gave preference to charters for acquiring excess space in the facilities inventory of District of Columbia Public Schools (DCPS), the law did not define what it meant by "preference." This language has been strengthened twice, first by the D.C. Council to read "first preference," and then by the U.S. Congress to read "right of first offer." The current law requires that charter schools be given first opportunity to bid to lease, at below-market rates, either empty DCPS school buildings or unused space within a DCPS school building that is not operating at full capacity. As the School Reform Act has been modified over the years to reflect changing views about charter school facilities support, DCPS policy has evolved—and continues to evolve—in response.
Overall, according to Robert Cane, executive director of FOCUS, the Congressional dictate that charter schools should have the first-offer right to bid on DCPS's surplus space has been "consistently ignored" and it has been a major struggle for charter school operators to access unused district facilities. He acknowledges that through ongoing advocacy efforts, FOCUS has "managed to scrape together some buildings...[and] for a couple hundred charter school students here and there, on a short-term basis, we have been able to colocate" by occupying unused portions of DCPS buildings. As of spring 2008, he says, about 20 percent of the District's charter schools were housed in 14 former DCPS school buildings. One building had been divided up and leased to three charter schools, and charter schools had either obtained a longterm lease or purchased the other buildings.
In contrast with Washington, D.C.'s law, California's law requires districts to provide charter schools with facilities whether or not districts have surplus space.70 Yet in neither place, according to respondents interviewed for this guide who are familiar with the laws of these two entities, have charter schools gained easy access to available district facilities. While no records document charter schools' use of district facilities in these two jurisdictions, respondents estimate that the majority of charter schools in both places have yet to receive any district space. Assuming these estimates are accurate, the reasons behind the numbers could speak more to actual space availability than to any unwillingness on the part of districts. But anecdotal information provided by those interviewed for this guide suggests that charter schools' efforts to access district space have provoked considerable conflict among charter schools, districts, and interested stakeholders.
In California, Caprice Young says, litigation has typically been necessary to force compliance; very few districts have willingly followed the dictates of Proposition 39. There have been at least eight lawsuits brought by or on behalf of charter schools to enforce its requirements, and, according to Young, court rulings have consistently favored charter schools, reinforcing and strengthening the regulations of Proposition 39 over time.71 Young explains that the courts have established that districts must provide charter schools with equitable space and have specified a clear definition of what this means. For example, the 2005 Ridgecrest Charter School v. Sierra Sands Unified School District decision stipulates that simply providing students with seats is not enough—districts must make an effort to provide charter schools with contiguous space (e.g., located on a single site when possible and, when not, in sites near one another).
Colorado operates under a different policy model that does not require districts to provide space for charters. Rather, it prohibits districts from charging rent for space (including land) deemed "otherwise available."72,73 Thus, as a practical matter, there is no monetary incentive for a district to give surplus space to someone other than a charter school. If a district has approved a charter school and the district also has an empty, usable building, it is hard to make the case that the charter school should not be entitled to that facility, says Jim Griffin, president of the Colorado League of Charter Schools (League). Yet, by Griffin's own estimate, most of the state's charter schools are authorized by local districts (approximately 129 of 131 charter schools), most Colorado districts have surplus space, and only about 28 percent of the state's charter schools have benefited from access to district facilities or land.
While district provision of facilities has not proved to be as widespread a solution for Colorado charter schools as some might wish, Griffin says, it has not been as contentious an issue as in other parts of the country. Some Colorado districts have objected to a charter school taking over one of their buildings on the basis that the district was using the space for storage, that it had plans to use it in the future, or that the building was unsafe. But the number of lawsuits in response to such decisions has been nothing compared to the degree of litigation in California, for example. In Griffin's view, Colorado was wise to take a less prescriptive approach because local circumstances vary and a "statewide, uniformly applicable prescription can cause unintended consequences," such as district resistance. Rather than forcing districts to provide space, he suggests, it is better to allow them to use their own judgment to determine whether an agreement makes sense and, if so, to shape it.
Making It Free or Charging a Fee: Various Approaches to District Facilities Costs
Encouraging or requiring districts to offer some of their space to charter schools is one thing. Deciding whether and what a district can charge for that access is a related but separate policy issue that must be considered. Most of the district housing arrangements worked out for charter schools in Colorado have been relatively free of conflict, according to Griffin. Some charter schools, he says, have worked with a district to find creative ways around the letter of the law as it relates to the prohibition against districts charging rent. For instance, charter schools sometimes agree to pay "upkeep and maintenance fees" for district property. Griffin points to other instances in which a district has paid to build a facility intended to house a charter school and, because this new space is defined as not having been "available" prior to construction, some sort of payment has been negotiated with the charter school. He asserts that charter schools that have successfully negotiated such arrangements consider the costs reasonable.
The issue of cost for district facilities is handled differently in the other two jurisdictions profiled in this section, the District and California. In the District, lease agreements between charter schools and DCPS are individually negotiated. According to Stefan Huh, director of the Office of Public Charter School Financing and Support in the D.C. Office of the State Superintendent of Education, these arrangements are supposed to take into account some estimate of market value lease rates, while still offering charter schools a lease below market value.
In California, policy related to whether districts are permitted to charge charter schools for occupying district facilities is complex. Proposition 39 prohibits districts from charging rent to a charter school if the district property in question was purchased with taxpayer-backed bond funds earmarked for facilities. However, a facility fee may be computed according to a specified formula that calculates a charter school's share of any general discretionary funds that a district has to expend on a facility.74
Caprice Young, of the California Charter Schools Association, sheds light on a related practice that she says is common among the few districts that have agreed to house charter schools under Proposition 39: negotiating an agreement with a charter school that enables the district to charge the school fees similar to rent. Young suggests that charter schools are willing to pay such agreed-upon fees, first, because the district fees are usually less expensive than commercial lease rates would be and, second, because the schools have difficulty locating an appropriate facility for a school. Even so, she believes, imposing such charges are "fundamentally at odds with the main principle of Proposition 39—that charter students are public school students." As taxpayers, charter school parents already contribute to financial support for their district's school facilities and, for that reason, Young argues, charter school students have an equal right to use those public assets. To her, it is inequitable for districts to charge charter schools any more than what they would charge other district students to attend school in a district facility, which, she points out, is nothing.