State’s New Guidelines for Renewals Under Court Challenge

The 2019 charter school legislation, AB 1505, amended California’s statutory system for charter school renewals. Under the new law, most charter schools up for renewal are categorized into one of three performance tiers: high, middle, or low based on academic performance. (Dashboard Alternative School Status (DASS) schools for at-risk students are categorized separately.)

Which tier the charter school falls into is significant, because it dictates the standard of review the authorizer uses when considering the school’s petition for renewal. The presumption is that high- and middle-tier charter schools will be renewed, while low-tier charter schools will not be renewed, but the law provides for exceptions.

California’s Charter Schools Act, as revised by AB 1505, defines in which performance category a specific charter school is placed, and why. For the most part, the factors used are based on the school’s performance in recent years on the California School Dashboard. However, some of the new law’s language is vague and open to interpretation. (Keep in mind, the State Board of Education has not yet adopted regulations to help interpret several provisions of AB 1505.)

Additionally, the California Department of Education (CDE) has assumed the role of determining which renewal tier each charter school is placed, although nowhere in the Charter Schools Act is CDE specifically assigned this role.  explained that it would “publically post a data file that provides the performance categories for all non-DASS charter schools to relieve the burden on authorizers.” To determine tier levels for each charter school, CDE crafted internal guidance for how it would interpret AB 1505 in that process.

Now a lawsuit has been filed challenging a renewal decision in which an authorizer attempted to apply the CDE’s approach.

Epiphany Prep School (EPS) in Escondido recently submitted its renewal petition to its charter authorizer, the Escondido Union School District in San Diego County. The District’s Board of Education denied the petition based, in part, on the belief among some board members that they could not renew the charter given that CDE had placed the school in the low-performing tier.

EPS filed a lawsuit in Sacramento County Superior Court on February 25, 2021, asking that the CDE be enjoined from using its current internal guidance, that the District vacate its denial of the renewal, and that the District conduct a new review of the renewal petition with the charter designated as a middle-tier school. EPS alleges that the CDE did not interpret the statutory guidance correctly and that EPS was, in fact, a middle-performing, not a low-performing, charter school.

The lawsuit also challenges CDE’s internal guidance itself. EPS claims that the guidance improperly ignores certain “growth” metrics captured in the Dashboard. More importantly, the school also alleges that the guidance amounted to an “underground regulation,” meaning it has the power of a state regulation but was not properly adopted through the State Board of Education’s own procedures. Regulations are properly adopted only after a process of publication for public review and comment.

This litigation is early yet, so we don’t know yet how it will fare or what impact it will have on the process whereby CDE determines placement of a charter school that is up for renewal into a particular tier.

CCAP had already advised authorizers to proceed with caution in making any high-stakes decisions due to the pandemic. This latest development increases that call for caution — including seeking legal counsel.

CCAP acknowledges the assistance of Ed Sklar of Lozano Smith in the preparation of this article.