The Legislature in 1992 enacted the Charter Schools Act of 1992 (Ed. Code, § 47600 et seq.; the Act).
Bullis Charter School filed a petition for writ of mandamus and a complaint alleging that the Los Altos School District (District) had violated the Act, as amended, by failing to offer and provide Bullis with facilities for the 2009-2010 school year that were reasonably equivalent to other public schools in the District. The District prevailed and Bullis challenges the court's ruling here. Bullis argues that the District's offer of facilities was deficient, inter alia, because the District significantly understated the non-classroom space available to District-run schools in the comparison group; overstated the size of the Bullis facility; did not consider the size of the site offered to Bullis as compared with the sizes of school sites in the comparison group; understated the size of some of the comparison schools' buildings; and
We conclude that the District offer of facilities for the 2009-2010 school year did not comply with Proposition 39 or its implementing regulations. Proposition 39 mandates that facilities be "shared fairly" among all public school students, including charter school students (§ 47614, subd. (a)). The regulations specify that a school district—in responding to a Proposition 39 facilities request by offering "reasonably equivalent" facilities to the charter school—must (1) select appropriate district-run schools to use as a comparison group with the charter school, (2) consider three categories of space (teaching, specialized teaching, and nonteaching space) in the comparison group schools, and (3) consider the site size of the comparison schools. In making its facilities offer, the school district must make a good faith effort to consider and accurately measure all of the facilities of the comparison group schools and accurately describe the facilities offered to the charter school. It is only through such an approach that one can determine whether "reasonably equivalent" facilities have been offered by the school district.
The District, in its facilities offer here, excluded from consideration over one million square feet of collective nonclassroom space of the comparison group schools. Its past practice notwithstanding, the District failed even to consider total site size; had it done so, using its own methodology, its offer would have contained some 35 percent greater acreage. It overstated the facilities offered to Bullis by considering (1) a soccer field on a 100 percent basis even though its shared use made it available to the charter school for only 40 percent of the time, and (2) a multi-purpose room as being District-supplied, even though it was built, owned, and operated by Bullis. And the District used an arbitrary "standard" size figure for certain facilities (e.g., libraries), thereby understating the appropriate size of such facility to be offered to Bullis. Based upon these deficiencies in the aggregate, we hold that the facilities offer was inconsistent with the mandate of Proposition 39 that a school district conduct a fair assessment of the facilities needed by the in-district charter school students so that those facilities offered meet the reasonable equivalence standard. The court should have granted mandamus and declaratory relief making an affirmative finding that the District acted arbitrarily by failing to apply the proper legal standards in its facilities offer to Bullis, in violation of Proposition 39. Accordingly, we will reverse the judgment.
Bullis filed this action against the District on June 10, 2009.
Bullis alleged in the Petition that it was established in the Spring of 2003.
In September 2008, Bullis submitted to the District its annual "Proposition 39 facilities request" for the 2009-2010 school year, which included enrollment projections and a request for facilities for a newly authorized seventh grade classroom. The District made a preliminary offer of facilities on January 30, 2009. Bullis responded by noting a series of claimed deficiencies with the preliminary offer, and on April 1, 2009, the District submitted its final offer of facilities for the 2009-2010 school year (Facilities Offer, or Offer). Both the Facilities Offer and the preliminary offer (attached to the Facilities Offer) utilized in the analysis five District-run elementary schools as comparison schools (i.e., Loyola, Covington, Almond, Santa Rita, and Gardner Bullis (Gardner)). The final Facilities Offer did not provide any facilities for a seventh grade. Bullis notified the District that it would occupy the facilities offered by the District, but continued to communicate its position that the District's Offer was deficient in that it failed to offer any facilities for the seventh grade and did not propose reasonably equivalent facilities for K-6.
The parties submitted substantial briefing and evidence in support of, and in opposition to, the Petition, including supplemental supporting and opposing papers. After hearing extensive argument, on November 24, 2009, the court issued an order denying the relief sought in the Petition. A judgment was thereafter entered in favor of the District, and Bullis filed a timely notice of appeal.
The 2009-2010 school year had ended by the time appellate briefing was completed in this case. Because the issues on appeal concern whether the District's final offer of facilities for the 2009-2010 school year violated the Act and Proposition 39, we deemed the potential mootness of this case to be of significant prominence which warranted further briefing. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479 [81 Cal.Rptr.3d 72] [mootness may be examined by appellate court on its own motion].) After considering the supplemental letter briefs of the parties, we conclude that this case is not moot. Moreover, even were we to find it moot, we would nonetheless exercise our discretion to decide the case because the issues are of sufficient public interest and are likely to recur.
Examples in which subsequent events have rendered a controversy moot are numerous. They include cases in which a legislative enactment eliminated the sole issue on appeal (Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 299 [221 Cal.Rptr. 746]); the child who was the subject of a guardianship order became an adult while the appeal was pending (Estate of McSwain (1917) 176 Cal. 287, 288 [168 P. 117]); and the parties settled the disputes arising out of an underlying contract while the appeal was pending (Cappellino v. Moore (1929) 207 Cal. 36, 38 [276 P. 575]). The mere passage of time after the entry of the judgment from which an appeal is taken may also render the controversy moot. (See, e.g., Feder v. Lahanier (1962) 200 Cal.App.2d 483, 484-485 [19 Cal.Rptr. 638].)
Even if a case is technically moot, the appellate court may nonetheless exercise its discretion to decide the case. Such an exercise of discretion may occur where the case "poses an issue of broad public interest that is likely to recur." (In re William M. (1970) 3 Cal.3d 16, 23 [89 Cal.Rptr. 33, 473 P.2d 737]; see also Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745-746, fn. 3 [123 Cal.Rptr.2d 1, 50 P.3d 718].) This exception has been invoked in many instances in order to decide a case of continuing public interest. (See, e.g., Johnson v. Hamilton (1975) 15 Cal.3d 461, 465 [125 Cal.Rptr. 129, 541 P.2d 881] [observing that it has been "frequently held that a case is not mooted from the fact alone that the issue in the case is of no further immediate interest to the person raising it"]; California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 303-304 [98 Cal.Rptr.2d 302] ["There is ample precedent for resolving important issues of substantial and continuing public interest that may otherwise evade review."].) And the public interest exception has been
Another exception to the mootness doctrine is where there is a distinct possibility that the controversy between the parties may recur. (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 [98 Cal.Rptr.2d 202] (Cucamongans United).) A third exception exists "when a material question remains for the court's determination [citation]." (Id. at p. 480.)
In this instance, although the 2009-2010 school year has long since passed—as has, of course, the 2010-2011 school year—it is readily apparent to this court that the controversy raised by Bullis's Petition is one that possibly, if not probably, will recur. The process by which Bullis, like all other charter schools, must request facilities from the District is an annual one. (See § 47614, subd. (b)(2).)
Under similar circumstances, the court in Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139 [18 Cal.Rptr.3d 417] (Environmental Charter High School) applied this exception to the mootness doctrine. There, the charter school brought a mandamus proceeding challenging the denial of a facilities request based on the school district's claim that there was a lack of documentation in support of the request. (Id. at pp. 143, 144.) The charter school argued that the additional information sought by the district was confidential and could not be released without the consent of the parents of the prospective students. (Id. at p. 143.) After the trial court granted the petition and the school district appealed, the appellate court, notwithstanding that the school year in question had expired, concluded that the case was not moot "because the parties' dispute over application of the regulations to a facilities request is likely to recur." (Id. at p. 144.)
Furthermore, even were we to find the recurrence of this controversy between the parties to be unlikely, we believe this case presents issues of broad public interest that are likely to recur. There are hundreds of charter schools currently operating in this state. At least according to one source—
Our high court has described the appropriate level of judicial scrutiny of agency action "`in any particular case is perhaps not susceptible of precise formulation, but lies somewhere along a continuum with nonreviewability at one end and independent judgment at the other.' [Citation.] Quasi-legislative administrative decisions are properly placed at that point of the continuum at which judicial review is more deferential; ministerial and informal actions do not merit such deference, and therefore lie toward the opposite end of the continuum." (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 575-576 [38 Cal.Rptr.2d 139, 888 P.2d 1268].) The First District Court of Appeal has enunciated some guiding principles for our consideration of this appeal: "Courts exercise limited review in ordinary mandamus proceedings. They may not reweigh the evidence or substitute their judgment for that of the agency. They uphold an agency action unless it is arbitrary, capricious, lacking in evidentiary support, or was made without due regard for the petitioner's rights. [Citations.] However, courts must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute. [Citation.] Because trial and appellate courts perform the same function in mandamus actions, an appellate court reviews the agency's action de novo. [Citation.]" (Sequoia, supra, 112 Cal.App.4th at p. 195.)
The Legislature adopted the Act in 1992 for the express purpose of "provid[ing] opportunities for teachers, parents, pupils, and community members to establish and maintain schools that operate independently from the existing school district structure ...." (§47601.) The Act had six stated
California voters in November 2000 approved Proposition 39, which included amending section 47614. That statute had previously imposed a limited obligation upon a school district to provide facilities to charter schools: A district was required to provide to a charter school operating in its district, "at no charge, facilities not currently used by the school district for instructional or administrative purposes, or that have not been historically used for rental purposes." (Former § 47614, added by Stats. 1998, ch. 34, § 15, pp. 202-203.) Proposition 39—containing the recital of the voters'
The proposition established a procedural mechanism by which a charter school could make an annual facilities request to the school district in which the school operated, including in the request "a reasonable projection of the charter school's average daily classroom attendance by in-district students for the following year." (§ 47614, subd. (b)(2).) Districts were given the discretion to deny requests where the charter school projected less than 80 units of average daily attendance. (§ 47614, subd. (b)(4).) A charter school must make a showing of its enrollment projections with relevant supporting documentation in presenting its Proposition 39 facilities request to the school district. (Environmental Charter High School, supra, 122 Cal.App.4th at p. 153.) The Act, however, does not require the charter school to make its enrollment projections with "arithmetical precision." (Sequoia, supra, 112 Cal.App.4th at p. 196.)
Proposition 39 also required the State Department of Education to propose, and gave the State Board of Education the authority to adopt, regulations to implement the amendment to section 47614, including regulations defining (among other terms), "`conditions reasonably equivalent,'" and specifying annual facilities request procedures. (§ 47614, subd. (b)(6).) The State Board of Education in 2002 adopted regulations implementing the provisions of section 47614. (Cal. Code Regs., tit. 5, § 11969.1 et seq.)
One regulation adopted by the State Board of Education—regulation 11969.3, which is at the heart of this controversy—specifically addresses a school district's obligation to provide facilities to a charter school "sufficient... to accommodate all of the charter school's in-district students in conditions reasonably equivalent to [facilities they would receive] if they were attending other public schools of the district," as provided under section 47614, subdivision (b). Subdivisions (a) through (c) of regulation 11969.3 specify the school district's methodology for conducting a reasonable equivalency analysis in responding to a charter school's facilities request.
Regulation 11969.3, subdivision (a)(1), provides that "[t]he standard for determining whether facilities" offered to a charter school satisfy the statute's reasonable equivalency requirement "shall be a comparison group of district-operated schools with similar grade levels." As discussed in part IV.D., post, there are two, apparently alternative methods of determining the comparison group. (Reg. 11969.3, subd. (a)(2), (3).)
Subdivision (b) of regulation 11969.3 (captioned "Capacity") describes three categories of facilities a school district shall consider in its reasonable equivalence analysis.
Regulation 11969.3, subdivision (c) (captioned "Condition") identifies the factors a school district must consider in determining "whether the condition of facilities provided to a charter school is reasonably equivalent to the condition of comparison group schools."
Regulation 11969.9 provides the procedure by which a charter school applies to a school district annually for facilities, and the school district responds to such a facilities request. The charter school must make a written request by November 1 of the preceding fiscal year (reg. 11969.9, subd. (b)), and the request must include, inter alia, a reasonable projection of its in-district students for the succeeding year and the method by which the projection was derived. (Reg. 11969.9, subd. (c)(1).) The school district may object to any of the charter school's projections (reg. 11969.9, subd. (d)), and the charter school may respond to those objections (reg. 11969.9, subd. (e)) within specified times. The district must prepare by February 1 a written preliminary proposal for facilities. (Reg. 11969.9, subd. (f).) "At a minimum, the preliminary proposal shall include (1) the projections of in-district classroom ADA on which the proposal is based, (2) the specific location or locations of the space, (3) all conditions pertaining to the space, including a
Bullis contends that the District violated Proposition 39, as elucidated by the implementing regulations, by failing to provide facilities for the 2009-2010 school year "sufficient for the charter school to accommodate all of [Bullis's] in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district." (§ 47614, subd. (b).) It argues that the District's analysis in its Facilities Offer was flawed in a number of respects, and that these flaws, individually and collectively, had the effect of falsely describing the facilities proposed to Bullis that would be reasonably equivalent under Proposition 39.
These claimed flaws in the District's analysis consist in (1) the exclusion of large portions of the outdoor space at the five schools in the comparison group, thereby significantly understating that space; (2) giving insufficient consideration to Bullis's overall site size in relation to the total acreage of each of the comparison group schools, thereby ignoring the fact that the Egan site offered to Bullis was significantly smaller than the comparison schools' sites; (3) the incorrect selection of five schools for the comparison group, rather than the three comparison schools in which the largest number of charter school students reside, thereby deflating the acres-per-student needed by Bullis students; (4) overstating the size of the facilities offered to Bullis;
Bullis contends the District's Proposition 39 analysis was flawed because it significantly understated the amount of exterior space for each of the five schools in the comparison group. It argues that under the regulations, and in particular regulation 11969.3, all space, such as the outdoor "non-teaching station space," must be considered, and the District may not exclude portions of the comparison group schools' outdoor space due to its belief that the excluded space was unusable (or for any other reason).
The Facilities Offer included a chart that, among other things, listed the outdoor space at each of the five comparison group schools; the space categories were described separately as "K play area," "non-K blacktop," and "Turf area." The chart also included a calculation of the average square footage for each of the three outdoor categories based upon the figures for the five comparison group schools.
Bullis presented evidence that large amounts (over 50 percent) of exterior square footage were not included in the District's calculations, thereby understating the actual amount of outdoor space at the comparison schools. Bullis's evidence may be summarized in the following table:
Table 1 — Total Outdoor Space — Five Comparison ---------------------------------------------------------------------------------------------------------------- Group Schools (square feet) Comparison Bullis's District Difference Space Average Average Group Evidence Reported Excluded (Actual) (District School Reported) ----------------------------------------------------------------------------------------------------------------Almond 355,289 220,958 134,331 38% ----------------------------------------------------------------------------------------------------------------Loyola 337,866 154,818 183,048 54% ----------------------------------------------------------------------------------------------------------------Covington 497,198 146,769 350,429 70% ----------------------------------------------------------------------------------------------------------------Gardner 365,652 106,070 259,582 71% ----------------------------------------------------------------------------------------------------------------Santa Rita 409,740 238,707 171,033 42% ----------------------------------------------------------------------------------------------------------------Total 1,965,745 867,322 1,098,423 56% ---------------------------------------------------------------------------------------------------------------- 393,149 173,46411 ----------------------------------------------------------------------------------------------------------------
In addition to Bullis showing the total outdoor space for each of the comparison group schools, it presented evidence of the amount of actual "K play area," "non-K blacktop," and "Turf area" for the five schools. The following table presents this apples-to-apples comparison between the calculations in the Facilities Offer and those presented by Bullis—showing that the District's figures generally were understated:
Table 2 — Outdoor Space (K Play, Non-K Blacktop, Turf) — Five Comparison Group Schools (square feet) Almond Loyola Covington Gardner Santa Average
Rita
-------------------------------------------------------------------------------------------------------------
Bullis's
Evidence
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K 12,223 9,490 16,057 12,310 6,211 11,258
-------------------------------------------------------------------------------------------------------------
Non-K 78,129 58,979 57,578 51,257 55,992 60,387
-------------------------------------------------------------------------------------------------------------
Turf 144,586 101,924 128,933 50,485 210,668 127,319
-------------------------------------------------------------------------------------------------------------
Total 234,988 170,393 202,568 114,052 272,871 198,964
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------------------------------------------------------------------------------------------------------------- District Reported ------------------------------------------------------------------------------------------------------------- K 10,387 5,557 7,635 10,300 6,007 7,977 ------------------------------------------------------------------------------------------------------------- Non-K 78,446 57,588 54,217 46,640 43,930 56,164 ------------------------------------------------------------------------------------------------------------- Turf 132,125 91,673 84,917 49,130 188,770 109,323 ------------------------------------------------------------------------------------------------------------- Total 220,958 154,818 146,769 106,070 238,707 173,464 -------------------------------------------------------------------------------------------------------------
The District's Offer included the square footage of these three areas of outdoor space proposed to Bullis—6,850 (K), 49,330 (non-K), and 91,410 (turf). The understatement of the comparison group schools' square footage of these three areas obviously reduced the actual gap between the average space at the comparison schools and the analogous space offered to Bullis.
Randall Kenyon, assistant superintendent of the District, testified that much of the comparison schools' exterior space, which he generally described as "unusable areas," was not included in the Proposition 39 analysis for the 2009-2010 school year. This excluded space included landscaping, "hilly unusable area," picnic tables, and walkways (at Covington); a large sloped area, other flat landscaped areas, a lunch area, and a childcare area (at Gardner); a playground, landscaping, blacktop between buildings and a field, lunch areas, a garden, a play structure, and bicycle racks (at Loyola); and an outdoor amphitheatre, a play structure, landscaping, and lunch areas (at Santa Rita).
Lawrence Schadt, an architect hired by the District, confirmed in his deposition that he was instructed by Kenyon to perform square footage calculations of only discrete portions of exterior space of the five schools in the comparison group.
Bullis also presented evidence that the turf areas for three of the comparison group schools as reported in the Facilities Offer were significantly smaller than the District's figures in its Proposition 39 facilities offers for prior school years.
Notwithstanding the apparently clear mandate of the implementing regulations, the District in the Facilities Offer here does not "allocate and/or provide access to non-teaching station space" to Bullis based upon its in-district classroom ADA and the per-student amount of such space in the comparison group schools, as required under regulation 11969.3, subdivision (b)(3). Instead, the District identifies a much smaller subset of the nonteaching station space—namely, K play area, non-K blacktop, and turf area. It then provides measurements and averages of those three areas at the comparison group schools, and formulates its Offer to Bullis based upon those three subcategories of space within the nonteaching station space category.
Second, the District, invoking the doctrine of ejusdem generis, argues that the term "non-teaching station space" in regulation 11969.3, subdivision (b)(3) is limited by the examples given in the regulation. Subdivision (b)(3) of regulation 11969.3 provides: "Non-teaching station space is all of the space that is not identified as teaching station space or specialized classroom space and includes, but is not limited to, administrative space, kitchen, multi-purpose room, and play area space." The District contends that—rather than constituting a catchall category of space which is neither teaching station nor specialized classroom space—"non-teaching station space" "must be construed to include only those within the same class as those that are explicitly enumerated (i.e., `administrative space, kitchen, multi-purpose room and play area space[]')." We disagree.
Thus, ejusdem generis is not a doctrine of inflexible application. As we have explained: "The rule of ejusdem generis assumes that the general term chosen by the Legislature conveys a relatively `unrestricted sense.' Sometimes this is so; sometimes it is not. The rule also supposes that the operative characteristics of the enumerated things may be readily discerned from the face of the statute, but that is not necessarily the case. With or without ejusdem generis, the real intent of an inclusive or expansive clause must ordinarily be derived from the statutory context and, if necessary, other permissible indicia of intent. Ejusdem generis, with its emphasis on abstract semantical suppositions, may do more to obscure than disclose the intended scope of the clause." (O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423, 1462 [44 Cal.Rptr.3d 72].)
Moreover, the adoption of ejusdem generis would frustrate the intent of Proposition 39 and its implementing regulations. Allowing a school district to allocate only some portion of nonclassroom space to a charter school based upon an evaluation of limited areas of the comparison group schools would be contrary to the intent of the voters adopting Proposition 39 that school district facilities be "shared fairly" among all public school pupils. (§ 46714, subd. (a).) The doctrine of "ejusdem generis `"is by no means a rule of universal application, and its use is to carry out, not to defeat, the legislative intent. When it can be seen that the particular word by which the general word is followed was inserted, not to give a coloring to the general word, but for a distinct object, and when, to carry out the purpose of the statute, the general word ought to govern, it is a mistake to allow the ejusdem generis rule to pervert the construction."' [Citation.]" (Zumbrun, supra, 165 Cal.App.4th at pp. 1619-1620.)
The approach in the Facilities Offer of excluding significant amounts of nonclassroom space from the District's reasonable equivalence analysis violated Proposition 39 and its implementing regulations. The practice was inconsistent with the District's obligation of identifying, offering, and providing facilities sufficient to accommodate Bullis's in-District students in conditions reasonably equivalent to facilities they would have received had they elected to attend District-run schools. (§ 47614, subd. (b); regs. 11969.3, 11969.9.)
Bullis contends that the District's analysis was flawed because it failed to consider the overall site size for the charter school as compared with the sizes of the comparable District-run schools. It argues that the Egan site is one-half the size of the schools in the comparison group and that the "site size by itself shows that Bullis has not received `reasonably equivalent' facilities. [Citation.]" (Fn. omitted.)
Bullis presented evidence that the actual site size of Covington was 13.64 acres. Using the average acreage and the average number of students at the five comparison group schools—the methodology used by the District in earlier facilities offers—Bullis showed that the Egan site offered to Bullis was over two acres smaller than a site that would be reasonably equivalent to the comparison group schools—and was thus only about three-quarters of the acreage that would be reasonably equivalent to the schools in the comparison group.
------------------------------------------------------------------- Table 3 — School Site Size — Five Comparison Group Schools School Acreage Students -------------------------------------------------------------------Almond 10 524 -------------------------------------------------------------------Loyola 10 538 -------------------------------------------------------------------Covington 13.64* 459 -------------------------------------------------------------------Gardner 10 239 -------------------------------------------------------------------Santa Rita 11.3 506 ------------------------------------------------------------------- Average Acreage: 10.99 Acres Per Student: 0.0243
Bullis argues that the District failed to comply with Proposition 39 because it "gave Bullis only half the acreage provided to the five comparison schools." It contends that "site size by itself shows that Bullis has not received `reasonably equivalent facilities. [Citation.]" (Fn. omitted.) We agree with Bullis to a certain extent.
The District argues that because "`school site size' is listed under `Condition,' and not `Capacity,' `school site size' is a qualitative, not a quantitative, requirement. As such, it is incapable of being enforced through [mandamus]." We disagree. Regardless of where it is mentioned in the regulation, it is plainly a requirement that the District consider site size in its Proposition 39 analysis. Further, while a district's failure to consider site size in responding to a facilities request, in some instances, may not warrant the granting of any relief to a charter school, where an unconsidered site size disparity between the comparison group schools and the facilities offered to the charter school is significant, mandamus to compel the district to follow the law may be appropriate.
The Egan site is significantly smaller than any of the five comparison group school sites. When the acres-per-student formula is considered, the Egan site is still only 74 percent (6.2 acres divided by 8.37 acres) of the size that would be considered comparable. We disagree with Bullis's contention that "site size by itself shows that [it] has not received `reasonably equivalent' facilities. [Citation.]" (Fn. omitted.) The fact that a charter school receives a smaller facility than those of the comparison group schools does not, by itself, warrant a finding that the charter school has not been provided
Here, however, the District's noncompliance with its Proposition 39 obligations involves more than merely its failure to consider site size. As we will conclude in part IV.H., post, the problems with the District's reasonable equivalence analysis in their totality warrant a finding that it failed to comply with the law.
Bullis claims that the District used an improper method to select the schools in the comparison group, resulting in a reasonable equivalence analysis skewed in favor of the District-run schools.
A District policy approved in 2004 called for the District, in determining reasonably equivalent conditions to be furnished to a charter school, to (among other things) select a comparison group of schools "comprised of the three schools in the school district with similar grade levels that the largest number of students of the charter school would otherwise attend." Kenyon testified that this policy had "not been amended or changed since September 7, 2004." In each of its facilities offers to Bullis for the 2004-2005 through the 2007-2008 school years, the District used the same three elementary schools as comparison group schools: Almond, Covington, and Santa Rita. For the 2008-2009 school year, as well as for the 2009-2010 school year at issue in this appeal, the District used five comparison group schools instead of three.
The Gardner school was newly opened in the fall of 2008. Of the five schools in the comparison group used by the District in the 2009-2010 Facilities Offer, Gardner had the smallest number of students. The highest number of projected Bullis students would have otherwise attended Gardner, followed by Loyola, and Covington. Accordingly, had the District, in its 2009-2010 Facilities Offer, followed its policy and prior practice of selecting three comparison group schools, the calculation of the school site size needed by Bullis would have been 9.39 acres, as demonstrated by the following table:
-------------------------------------------------------------- Table 4 — School Site Size—Three Comparison Group Schools School Acreage Students --------------------------------------------------------------Loyola 10 538 --------------------------------------------------------------Covington 13.64* 459 --------------------------------------------------------------Gardner 10 239 -------------------------------------------------------------- -------------------------------------------------------------- Average Acreage: 11.21 Acres Per Student: 0.0272
Thus, had the District selected three schools for the comparison group, the acreage needed calculation would have shown a significantly larger site size needed by Bullis (9.39 acres) than under the five-school approach used in the Facilities Offer (8.37 acres; see Table 3, ante).
Bullis contends that the District intentionally changed its method of selecting the comparison group schools in violation of its own policy and in violation of the regulations in order to minimize the discrepancy between the site size required for Bullis and the size of the Egan site offered. The District responds that its selection of five comparison group schools in its analysis was not "`arbitrary, capricious, lacking in evidentiary support, or was made without due regard for petitioner's rights.' [Citation.]" The Facilities Offer includes a recital that the District's selection of five comparison schools was done in an effort "to obtain the broadest scope of comparative information for purposes of identifying and providing [Bullis] with a reasonably equivalent site ...." And the District claims that its selection of Loyola as one of the comparison group schools was a rational one in light of "the fact that it was the second-highest school in terms of the attendance area of the students attending [Bullis]."
Here, it is uncontested (as stated in the Facilities Offer) that the "[s]tudents attending Loyola live within a different high school attendance area— Mountain View High School—than those attending Gardner, Covington, Almond and Santa Rita." Therefore, Bullis argues, selecting Loyola for the comparison group was contrary to subdivision (a)(3) of regulation 11969.3. But the use of five schools rather than three, Bullis argues further, was contrary to the District's policy and past practice.
Although the language of the regulation does not leave us free from doubt, we read regulation 11969.3 as requiring a school district to select the comparison group by (1) determining the high school attendance area in which the highest number of charter school students reside, and (2) then selecting all "district-operated schools with similar grade levels" as the charter school as the comparison group. (Reg. 11969.3, subd. (a)(2).) Alternatively, if the school district is not based upon a system in which students attend "high school based on attendance areas," the district must select as the comparison group the three district-run schools "with similar grade levels that the largest number of students of the charter school would otherwise attend." (Reg. 11969.3, subd. (a)(3).)
Here, at least from this record, the system was not one in which the District's students attended high school based upon something other than attendance areas; the alternative method of regulation 11969.3, subdivision (a)(3) does not appear to apply. Thus, the fact that the District did not follow its procedure and past practice of selecting three schools for the comparison group is of no consequence.
We perceive the principal error in the District's approach, as discussed in part IV.C., ante, to have been its failure to consider site size at all in the Proposition 39 analysis. In light of the ambiguity of the regulation—and the District's recital that its selection of a five-school comparison group (including Loyola, a school that the second highest number of Bullis students would have otherwise attended) was done to provide "the broadest scope of comparative information"—we do not find from this record that the District's comparison group selection method here was in violation of Proposition 39.
Bullis argues that the District used incorrect figures with respect to certain space at the Egan site in that it (a) used incorrect measurements of certain portions of the Egan site; (b) failed to account for the fact that Bullis had only forty percent access to a soccer field; and (c) "counted" a room as being a District-provided facility which was built, owned, and maintained by Bullis. As a result, Bullis contends that the Facilities Offer contained overstatements of the site it offered to Bullis.
As noted above, the District in its Facilities Offer calculated the amount of certain portions of outdoor space—K play area, non-K blacktop, and turf area—that should be supplied to Bullis based upon the average amounts of such space available to students at the five comparison group schools. Irrespective of whether the District's methodology was in error—in that it failed to account for all nonteaching station space—the evidence was that the blacktop and turf areas at the Egan site were significantly smaller than as stated by the District.
The Facilities Offer listed the blacktop area at the Egan site as 53,430 square feet. Although the District revised that figure downward by about 4,000 square feet in its opposition to the Petition, its architect, Schadt, testified that the correct figure was actually 40,010, or more than 13,000 square feet smaller than the figure in the Facilities Offer. He explained that he
The turf area at the Egan site was listed in the Facilities Offer as 87,310 square feet. Although the District's opposition below noted that this figure was understated by about 4,000 square feet, Schadt concluded that the turf area was 82,470 square feet. This figure included a children's playground—an area not included in the comparison group schools. After deduction of this area, the total turf area was 80,470.
A portion of the turf area at the Egan site is a grass soccer field which Schadt in his corrected drawing indicated was 29,230 square feet. There is a fence separating Bullis from this field, although there is no fence separating the soccer field from Egan Junior High School. Bullis and the junior high school share the soccer field during school hours; Bullis may use the field two days a week while Egan Junior High School uses it three days a week. No other District elementary school is required to share turf with another school during school hours. Because it does not have unrestricted use of the soccer field during school hours, Bullis contends that it was inappropriate for the District to have included 100 percent of the field in its calculation of the amount of turf area provided in the Facilities Offer. Bullis argues that only a pro rata share of the field should have been included, based upon its restricted use of the soccer field to 40 percent of the time during school hours.
Accepting, for the moment, Bullis's claim that the soccer field should not have been credited in full as a facility offered by the District, as seen from the table below, there is a significant disparity between the size of the blacktop and turf actually offered to Bullis as compared with sizes presented in the District's Facilities Offer:
-------------------------------------------------------------------------------------------- Table 5—Bullis Outdoor Measurements (square foot) Fac Dist. Dist. Dist. Proration Avg. % of Offer Corr. Architect Architect (40%) Space for Comp (4/1/09) Drawing Corr. Corr. 2d for 5 Comp School (10/9/09) (10/13/09) (10/13/09) soccer Schools avg. field (4/1/09) (29,230) --------------------------------------------------------------------------------------------Blacktop 53,430 49,330 41,930 40,010 56,164 71% --------------------------------------------------------------------------------------------Turf 87,310 91,410 82,470 80,470 62,470 109,323 57% --------------------------------------------------------------------------------------------
The Offer includes in its description of the facilities offered a multipurpose room of 4,330 square feet. The evidence is undisputed that this room was built in 2007, pursuant to the agreement of the parties, at Bullis's sole expense. Kenyon testified that the room was included in the Facilities Offer because the District was responsible for its maintenance and utilities, including water and sewer costs. Bullis offered evidence refuting the District's claim that it was responsible for maintaining the multipurpose room, including the presentation of facilities use agreements for the 2007-2008 and 2008-2009 school years indicating Bullis's maintenance responsibility for the room.
In performing its Proposition 39 analysis, the District included the 29,230-square-foot soccer field as if it were offered to Bullis without restriction on its use. The unrebutted evidence, however, was that Bullis could only use the field during school hours on two out of five school days, and that none of the comparison group schools was required to share turf areas. The District's failure to acknowledge and account for Bullis's shared use of the soccer field had the effect of distorting the analysis. Moreover, the District ignores the fact that, under the regulations, a district may not charge a charter school for shared space on a 100 percent basis; rather, it may charge only a pro rata portion of the shared space. (Reg. 11969.7, subd. (c).) The District's methodology of ignoring space-sharing arrangements offered to Bullis in performing the reasonable equivalence analysis is the antithesis of a school district's Proposition 39 obligation "to give the same degree of consideration to the needs of charter school students as it does to the students in district-run schools." (Ridgecrest, supra, 130 Cal.App.4th at p. 999, fn. omitted.) We thus conclude that the District should have allocated only 40 percent of the soccer field in calculating the amount of turf area provided to Bullis. As noted above, such an allocation would mean that the Facilities Offer overstated the amount of turf area provided to Bullis by nearly 25,000 square feet, or 40 percent of its actual square footage.
Bullis contends that the District used a methodology in its Facilities Offer for determining the size of particular rooms, namely the library and multipurpose room, which resulted in a distortion of the reasonable equivalence analysis.
In each of its facilities offers for the 2004-2005 through the 2007-2008 school years, the District's analysis included figures that represented the average room sizes of certain facilities, such as the library and multipurpose room, of the comparison group schools. Commencing with the offer for the 2008-2009 school year, and continuing with the 2009-2010 Facilities Offer, the District used a different approach. Although the District labeled the figures as "AVERAGE[S] of 5 schools," they represented what the District's assistant supervisor later termed "standard" room sizes; they were not the average room sizes of the five schools in the comparison group.
Bullis contends that the Facilities Offer was also deficient because it failed to include a before- and afterschool childcare facility. It argues that it had requested such a facility, but the District refused the request.
Although each of the five schools in the comparison group has a childcare facility, the Facilities Offer did not provide one to Bullis. Nor were childcare facilities listed in the District's reasonable equivalence table made part of the Facilities Offer, which table included an identification and description of various classrooms, other rooms, and portions of the grounds of the comparison group schools. Although specifically requested by Bullis in two communications preceding the Facilities Offer, the District noted in the offer that
As we have noted, a school district is required under Proposition 39 and the implementing regulations to offer and provide facilities, including nonteaching station space, to charter schools in a manner that is consistent with the objective of public school facilities being "shared fairly" among all public school students, including charter school students. (§ 47614, subd. (a).) The District did not meet this obligation. By failing to identify and consider such nonclassroom space as a childcare facility in the Facilities Offer, the District did not give an accurate report of the comparison group schools' facilities.
The Facilities Offer to Bullis for the 2009-2010 school year did not satisfy the District's obligations under Proposition 39. The District did not consider all "non-teaching station space" at the five comparison group schools to determine the amount of such space that would be appropriate to provide to Bullis. Instead, the District considered only a discrete portion of that space (K play, non-K blacktop, and turf areas) in the Facilities offer. It compounded this error by significantly understating this space for the comparison group schools. Indeed, the amount of unreported "non-teaching station space" at the five comparison group schools was over one million square feet. The District also significantly overstated the blacktop and turf areas at the Egan site offered to Bullis. These deficiencies caused the amount of space to be supplied to Bullis as provided in the analysis to be greatly understated. These deficiencies—as well as the District's failure to consider in its analysis a before- and afterschool childcare facility, when such a facility was provided
In addition, the District's use of "standard" sizes of certain rooms of specialized classroom space, such as a library, to understate considerably the appropriate size of such rooms for Bullis violated regulation 11969.3, subdivision (b)(2). Moreover, the failure of the District to consider the overall site size of the comparison group schools in determining the appropriate site size Bullis's in-District students should receive under Proposition 39 violated regulation 11969.3, subdivision (c)(1)(A). This consideration was of some importance here, as demonstrated by the fact that had site size been considered by the District, the Egan site would have been determined to be only about 75 percent of the acreage appropriate for Bullis's in-District students (or only 68 percent if the soccer field were prorated based upon its shared use).
While a Proposition 39 analysis does not necessarily compel a school district to allocate and provide to a charter school each and every particular room or other facility available to the comparison group schools, it must at least account for the comparison schools' facilities in its proposal. A determination of reasonable equivalence can be made only if facilities made available to the students attending the comparison schools are listed and considered.
The judgment is reversed.
Rushing, P. J., and Grover, J.,
