In March, the California Charter Schools Association (CCSA) filed a lawsuit against the Oakland Unified School District (OUSD) alleging it had failed to meet the standards set by Proposition 39.
Proposition 39, also known as the “Smaller Classes, Safer Schools and Financial Accountability Act,” was passed by voters in 2000, and requires all California school districts to provide equivalent facilities to charter schools and the students who choose to attend them. The ballot initiative was based on the premise that students who attend charter schools would have otherwise attended district schools, so the district should have planned to accommodate those students with space and resources. To be “equivalent” means that the district must provide resources and facilities to a charter school that match what they provide children at schools in the same part of the district, and according to the proposition’s text, they must be “contiguous, furnished and equipped, and shall remain the property of the school district.”
The association claims that Oakland has failed to meet these standards in several ways. According to the lawsuit, seven schools, including American Indian Public Middle School and High School, KIPP Bridge Charter School, East Bay Innovation Academy and ARISE High School were offered multiple campuses when the law requires one shared campus or a single facility.
The lawsuit also states that the charter schools were not informed of the number of teaching stations or average daily attendance at comparison schools—OUSD schools the district uses to determine which resources to allot to charter schools in similar locations serving similar student bodies. Without this information, “it is impossible to determine how OUSD calculated the number of classrooms that it offered to charter schools,” and there is “no way to verify that OUSD used legally sufficient calculations,” according to the text of the suit.
The association alleges that without this information, the district left charter schools in a financial bind. “Many charter schools rely entirely upon Prop. 39 for their school facilities because unlike OUSD-run schools they cannot directly raise money through property tax assessments, developer fees, parcel taxes, or bond initiatives,” states the lawsuit. This leaves charter schools to their own devices when it comes to seeking space, the suit claims: “When school districts fail to comply with the obligation to provide facilities to charter schools, those schools must spend precious public resources to seek out private facilities (often storefronts or church basements) to open and/or expand their schools.”
Ricardo Soto, senior vice president of legal advocacy for CCSA, said he doesn’t think any errors made by the district were intentional. “I think it has a lot to do with them just not understanding what their legal obligation is under Prop. 39. I think they believe they need to offer students whatever space they have left over as to how they can accommodate,” he said.
“OUSD has worked diligently and in good faith in its implementation of the Prop 39 statute. Nineteen charter schools are located in District managed facilities,” wrote Valerie Goode, deputy chief of communications and public affairs for OUSD, responding on behalf of the district via email. “These have included facilities where the District has closed schools, converted District-run schools to charters, co-located schools, and consolidated schools. We are prioritizing the needs of students and the efficient use of our school facilities.”
Goode wrote that the district plans to re-configure campus use and lower administrative spending in order to comply with Proposition 39. “Our goal, again, is to make sure we’re using our publicly funded resources in the way the best serves the families of Oakland. This means decreasing administrative costs centrally and at sites in order to increase investments in our classrooms. For that reason, the District is looking critically at how to best configure schools across the District to decrease administrative costs and place more dollars into the academic programs,” wrote Goode.
Although some parents and activists have expressed concerns that the district would close campuses in order to meet the requirements of Proposition 39, Goode said the district has no plans to close schools now or in the near future. And on whether conforming with Proposition 39 is financially feasible for the district, Goode wrote, “We’re completely committed to meeting the needs of our students and making a good-faith effort to comply with Prop 39. It is a complex issue, but we’re working hard to make sure that the public school facilities that the taxpayers fund are put to good use for the children of Oakland.”
According to Soto, CCSA began looking into the district during the 2013-2014 school year, when charter schools began to request facilities under Proposition 39, and organization officials came to feel that violations of the law were taking place. Specifically, CCSA noted a lack of information about facilities made available to charter schools by the district.
Under Proposition 39, districts must be transparent about the facilities they offer to each school, and must make preliminary offers to charter schools before February 1 each year. School administrators then have until March 1 to respond to their offers with concerns about discrepancies between what was requested and what was offered. Districts then must review the concerns, sending each school a final notification of space provided by April 1. School officials have until May 1 to decide whether or not they will occupy that space.
But according to the lawsuit, the district repeatedly did not follow this timeline, requiring charter school officials to make their final decisions by March 1 for the 2014-2015 and 2015-2016 school years. They argue that school officials did not have time to contest the offers, and were forced to accept or decline the facilities quickly, or as the lawsuit states: “take it or leave it.” This left some schools with facilities of the wrong size or location, the suit claims.
Proposition 39 also requires that the facilities provided to a charter school be located together, rather than spread across multiple campuses. A school district can offer a charter school a one-campus facility, or it can offer it a portion of a campus a district school is currently using, creating a two-school campus. But a district cannot require a charter school to split its programming across multiple campuses.
According to Soto, American Indian Public Middle School and High School was offered a seven-site facility in 2016. KIPP Bridge Charter, ARISE High School, and East Bay Innovations Academy were among the other campuses receiving facilities offers of two or more sites.
Soto said the association made several complaints to the school district before filing suit this year. “The district’s attorneys told us at the time [in 2014] that the district was committed to complying to Prop. 39,” said Soto. “They basically had the 2014-2015 school year to demonstrate whether or not they were going to meet their word to us.”
But his group noticed more alleged problems in the 2014-2015 school year, so they sent several more letters over the course of the year asking the district to meet what they argue are the stipulations set forth by Proposition 39. “We saw in January  that the district did the same thing it did two years ago. They offered about half [of the charter schools] multiple site facilities,” said Soto, meaning that charters were offered the use of parts of different campuses as opposed to one facility.
Non-profits and charter school organizations have voiced their support for the suit, and urged the district to work with the association to provide a solution. “People point to Prop. 39 as an ‘us versus them’ opportunity,” said Ash Solar, executive director for GO Public Schools, a non-profit that endorses OUSD school board candidates and informs the public about issues involving education in Oakland. “We could do much better for kids and families if we sat at a table and worked it out in the most constructive way for all families and all schools.”
The school district’s history with charter schools is complex. There are now 37 district-approved charter schools in Oakland, along with an additional 7 that are authorized by the Alameda County Office of Education, and one authorized by the Alameda school district. Nineteen of those charter schools are located in facilities managed by the OUSD. In February, the district approved the expansion of KIPP Bridge charter school, and on April 13 approved the charter renewals for Vincent Academy and American Indian Charter Schools.
The push for charter schools grew around the turn of the century, following the rise and decline of Oakland’s “small schools movement.” In 2000, the Oakland school board approved a “New Small Autonomous Schools” policy in an attempt to fix the declining quality of schools serving students in Oakland’s flatlands. As a result, 45 new smaller schools were created, many by splitting up larger existing campuses like Fremont and McClymonds high schools into several campuses that enrolled fewer students. The effort was supported by funding from the Bill and Melinda Gates Foundation that reached $40 million.
But the small schools ran into problems: An overall decrease in enrollment throughout the district left many of the campuses under-enrolled. Schools need a certain number of students to be financially viable, and operating so many schools for a smaller student body left the district strapped for cash. In 2011, the district voted to close five elementary schools due to budget constraints and low enrollment. Parents and educators organized marches and petitioned for the recall of five board members to protest the proposed closures.
At that time, the district already had 32 charter schools, 30 of which were partnership schools, in which the charter pays the district for services, like custodial services and research. These schools are included in the district’s enrollment process. However, as the district began to threaten schools with closure, more schools began to ask to convert to standard charter schools. In 2011, three Fruitvale schools—ASCEND, Learning Without Limits, and Lazear Elementary—which were among the five slated to be closed by the board, petitioned to convert to charter schools.
After their petitions were turned down by the board, two of the schools and the district began to work on a compromise. In March 2012, the school board voted unanimously to allow ASCEND and Learning Without Limits to become charter schools under a partnership model. As partnership schools, they would be run like charter schools, with access to both public and private funding and district facilities, and would have autonomy over curriculum and hiring practices. But they would pay the district for services like maintenance and would help pay down the district’s state debt.
Today, those in favor of charter schools say they offer increased options for families, that their students often score well on standardized tests, and that the schools have more autonomy from the district and more freedom with curriculum design. However, those who are critical argue that they represent the privatization of the public school system, taking resources that should be allocated for district schools, and that they “cherry-pick” students while denying others admission. Groups like By Any Means Necessary (BAMN) and Schools Oakland Students Deserve (SOSD), organizations with members who frequently attend school board meetings, protest what they refer to as the privatization of public schools and argue that charter schools don’t serve students with special needs.
Some think framing the argument in this way is inaccurate. “For me, I think talking about charter versus district versus quality is, frankly, a distraction,” said Solar of GO Public Schools. “They exist. They’re part of the landscape in Oakland. One out of every four students attending public schools in Oakland attends a charter school.” According to Solar, the district needs to spend more time talking about school quality as opposed to the contrasts between district and charter schools.
For now, the OUSD is making room for charter schools on district campuses like Kings Estate Middle School, which will be sharing a campus with the American Indian Public Middle School after the 2016-2017 school year. The two schools will split the campus, Superintendent Antwan Wilson confirmed at the school board meeting on April 14, after much speculation about where the charter school would end up after moving from its current location at Westlake Middle School.
OUSD officials say they will respond to the lawsuit by May 25, the agreed-upon deadline by both parties. But Soto believes the district can find enough space for all of its charter schools. “I think the reality is that we know this is a district with declining enrollment where we have seen a significant number of students leaving their schools. We firmly believe there is capacity. It’s just a matter of prioritizing it,” said Soto.