Today's Fresh Start Charter etc. v. Inglewood Unified School Dist.

Filed 2/7/18
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
TODAY’S FRESH START B280986
CHARTER SCHOOL,
(Los Angeles County
Plaintiff and Appellant, Super. Ct. No. BS163240)
v.
INGLEWOOD UNIFIED
SCHOOL DISTRICT et al.,
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Amy D. Hogue, Judge. Affirmed.
Doll Amir & Eley, Mary Tesh Glarum, Lloyd Vu and
Michael M. Amir; Procopio, Cory, Hargreaves & Savitch, Kendra
J. Hall and John C. Lemmo for Plaintiff and Appellant.
Burke, Williams & Sorensen and John R. Yeh for
Defendants and Respondents.
Lozano Smith, Sloan R. Simmons, Megan E. Macy, and
Erin M. Hamor; Elaine M. Yama-Garcia and D. Michael Ambrose
for California School Boards Association’s Education Legal
Alliance, Amicus Curiae on behalf of Defendants and
Respondents.
__________________________________
Under the Education Code, in order to add a new charter
location, an established charter school must obtain approval in
the form of a material revision from the authority that granted
its charter. (Ed. Code, § 47605, subd. (a)(4).)1 Today’s Fresh
Start Charter School (Today’s Fresh Start), the appellant in this
appeal, sought both this approval and renewal of its charter in
the same petition to the Inglewood Unified School District
(IUSD), respondent. We conclude that a petition for renewal is
governed by different procedures than a petition seeking to add
an additional location, and that IUSD was correct in treating
them separately. The trial court properly denied the mandate
relief sought by Today’s Fresh Start.
FACTUAL AND PROCEDURAL SUMMARY
Appellant operates a public charter school authorized by
IUSD. Its original charter was authorized in 2009 for a location
on West Imperial Highway in Inglewood; this charter was
renewed in 2012.
On November 5, 2015, Today’s Fresh Start submitted a
document to IUSD entitled “Renewal and Material Revision of
the Today’s Fresh Start Charter School Petition.” It sought
renewal of the charter for the period from July 1, 2015 through
June 30, 2020. In the same petition, it also sought authorization
All statutory references are to the Education Code unless
1
otherwise indicated.
2
to operate a second site, at 2255-57 Adams Boulevard, Los
Angeles (the Adams location). This proposed additional site was
within the boundaries of the Los Angeles Unified School District,
not those of IUSD. Appellant relied on section 47605.1,
subdivision (d) which permits location outside the authorizing
school district under certain conditions.
California Code of Regulations, title 5, section 11966.4,
subdivision (c),2 provides: “If within 60 days of its receipt of a
petition for renewal, a district governing board has not made a
written factual finding as mandated by Education Code section
47605(b), the absence of written factual findings shall be deemed
an approval of the petition for renewal.” As of January 6, 2016,
60 days after the petition was submitted, IUSD had not made
any factual findings concerning the petition.
In early February, Dr. Jeanette Parker, superintendent of
Today’s Fresh Start, contacted Dr. Stephen McCray, Executive
Director for IUSD, regarding the petition. In a letter following
that telephone conversation, Dr. McCray informed Dr. Parker
that “through inadvertence and the transition of the oversight of
charter school functions” the petition had not been forwarded to
his office until January. “I now have a copy and, therefore, we
will now proceed to commence the review of the Charter and
schedule the matter for receipt by the State Administrator, a
public hearing, and action.” The matter was placed on the
agenda for public hearing at the March 9, 2016 District Board
meeting.
2Hereafter referred to as Section 11966.4; this and other
regulations governing charter schools were adopted pursuant to
section 33031.
3
In response, Dr. Parker took the position that the petition
was deemed approved by operation of law, based on the absence
of factual findings within 60 days of its submission. She attended
the March 9 IUSD board meeting and objected to the untimely
review of the petition.
The April 8 staff report to the State Administrator of IUSD,
Dr. Vincent Matthews, concluded that Today’s Fresh Start’s
charter was automatically renewed because IUSD did not take
action on it within 60 days of its receipt. It treated the request
for approval of the Adams location as a “material revision” which
was not subject to the 60-day automatic renewal, and
recommended denial of that request for failure to meet the
requirements under the Education Code. The matter was placed
on the IUSD District Board agenda. At the May 11, 2016 District
Board meeting, the State Administrator adopted the proposed
resolution which acknowledged the automatic renewal of Today’s
Fresh Start’s charter, but denied its request to operate the
Adams location.
Today’s Fresh Start filed a petition for writ of mandate,
seeking an order directing IUSD and the State Administrator to
set aside the resolution denying the request to operate the Adams
location. Today’s Fresh Start argued that its entire petition was
approved by operation of law based on IUSD’s failure to act
within 60 days, and that IUSD improperly “carved away” the
request for the Adams location as a material revision, to be
treated separately. The trial court rejected this argument and
denied the requested relief. This is a timely appeal from the
ensuing judgment.
DISCUSSION
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I
On review of a trial court’s judgment on a petition for writ
of mandate under Code of Civil Procedure section 1085, “we apply
the substantial evidence test to the trial court’s findings of fact
and exercise our independent judgment on legal issues, such as
the interpretation of statutory or regulatory requirements.”
(Menefield v. Foreman (2014) 231 Cal. App. 4th 211, 217.) The
core question in this case is whether the approval by operation of
law of a petition for renewal of a charter school also applies to a
request for material revision of a charter contained in the same
petition. This turns on the applicable statutes and regulations
governing the approval processes, and we exercise our
independent judgment on this question.
II
As relevant to this case, there are three categories of
approval governing charter schools: an initial petition for the
establishment of a charter school; a petition to renew an existing
charter; and a petition for approval of a material revision to an
existing charter. The material revision at issue is the addition of
a second school location.
Section 47605 describes the required content for a petition
to establish a charter school and sets out the criteria for the grant
of a charter, including operational requirements and educational
goals. (Subds. (b)(5), (c), (d).) Subdivision (g) requires a
description of the facilities to be used by the school, including its
location. This subdivision is directed at the initial establishment
of a charter school; it requires financial statements including a
proposed first-year budget, startup costs, and financial
projections for the first three years of operation. Since Today’s
Fresh Start specified only the Imperial Highway site in its
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petition to establish the charter school, that was the sole
approved location.
The same statute contemplates the possibility that a
charter school may wish to add additional sites after it is
established: “After receiving approval of its petition, a charter
school that proposes to establish operations at one or more
additional sites shall request a material revision to its charter
and shall notify the authority that granted its charter of those
additional locations. The authority that granted its charter shall
consider whether to approve those additional locations at an
open, public meeting. If the additional locations are approved,
they shall be a material revision to the charter school’s charter.”
(§ 47605, subd. (a)(4); italics added.)
“Renewals and material revisions of charters are governed
by the standards and criteria in section 47605, and shall include,
but not be limited to, a reasonably comprehensive description of
any new requirement of charter schools enacted into law after the
charter was originally granted or last renewed.” (§ 47607,
subd. (a)(2).)
Although the standards and criteria in section 47605 apply
to all three types of approval, the procedure applicable to each is
different. The first step for establishing a charter school is
submission of a petition to the governing board of the school
district signed by a specified percentage of parents or teachers,
based on the estimated number of pupils or teachers who will be
involved in the school in its first year. (§ 47605, subd. (a)(l)(A) &
(B).) There is no signature requirement for a petition for renewal
(§ 11966.4, (a)(2)(A)), nor for a request for material revision.
No later than 30 days after receiving a petition for
establishment of a charter school, a school district is required to
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hold a public hearing on the provisions of the charter and must
grant or deny the charter within 60 days of receipt of the petition.
(§ 47605, subd. (b).) Denial of a petition to establish a charter
school requires “written factual findings, specific to the particular
petition, setting forth specific facts” about the inadequacy of the
petition, as described in the statute. (Ibid.) If the petition is
denied, there is an appeal process: the petitioner may submit the
petition to the county board of education, and if that is denied,
then to the State Board of Education. (§ 47605, subd. (j)(1).)
Charter renewals are addressed separately in section
47607. Subdivision (a)(3)(A) directs the granting authority to
consider increases in pupil academic achievement as the most
important factor in determining whether to grant a charter
renewal, and subdivision (b) details the information by which
that achievement will be measured. Section 11966.4 spells out
the review process for a renewal application, noting the need to
include “a reasonably comprehensive description of how the
charter school has met all new charter school requirements
enacted into law after the charter was originally granted or last
renewed.” (§ 11966.4, subd. (a)(2) et seq.) “When considering a
petition for renewal, the district governing board shall consider
the past performance of the school’s academics, finances, and
operation in evaluating the likelihood of future success, along
with future plans for improvement if any.” (Ibid.)
Similar to the requirement for denial of a petition to
establish a charter school, the denial of a petition for renewal of a
charter school requires the district governing board to make
“written factual findings, specific to the particular petition,
setting forth specific facts to support one or more of the grounds
for denial set forth in Education Code section 47605(b) or facts to
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support a failure to meet one of the criteria set forth in Education
Code section 47607(b).” (§11966.4, subd. (b)(2).) ·
The principal procedural difference between the petition to
establish a charter school and the petition for renewal is the
deemed approval provision for renewals in section 11966.4,
subdivision (c): “If within 60 days of receipt of a petition for
renewal, a district governing board has not made a written
factual finding as mandated by Education Code section 47605(b),
the absence of written factual findings shall be deemed an
approval of the petition for renewal.” (Italics added.)
A request for material revision to add another school location
after the establishment of a charter school is a distinct kind of
petition. The entity that granted the charter is required to
consider whether to approve a proposed additional location at an
open, public meeting (§ 47605, subd. (a)(4).) But there is no
specific time frame for that public meeting or for a decision, and
no requirement for specific written factual findings. Most
significantly, there is no provision in the statutes or in the
regulations that the request be deemed approved if the governing
body fails to act. This is in contrast to Section 11966.4, which
includes a “deemed approval” provision for a renewal petition.
III
Turning to our facts, Today’s Fresh Start’s initial petition
for establishment of a charter school listed 3504 West Imperial
Highway in Inglewood as the location of the proposed charter
school. This initial petition was granted in July 2009 and
renewed in March 2012. Once Today’s Fresh Start received
approval to establish the charter school, its later intent to
establish operations at an additional location was governed by
section 47605, subdivision (a)(4): it was required to request a
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material revision to its charter from the granting authority.
IUSD was required to consider this request at an open, public
meeting. Approval of the additional location would constitute a
material revision to the school charter. (Ibid.)
Today’s Fresh Start appears to have followed that
procedure. It submitted a combined petition3 to IUSD for
“Renewal and Material Revision of the Today’s Fresh Start
Charter School Charter Petition” for the term July 1, 2015
through June 30, 2020. In addition to seeking renewal of the
school charter, this petition specified the Adams location as the
proposed additional site. Inclusion of the renewal request and
the material revision in the same petition does not change the
fact that two different types of approval were being sought, each
with its own criteria and process.
Today’s Fresh Start argues it was not petitioning to amend
its existing charter, but instead was petitioning for approval of a
new proposed charter, “submitted for approval via renewal.”
New charters are subject to the signature requirements in section
47605, subdivision (a)(1) (A) and (B). More importantly, there is
no deemed approval provision for a petition to establish a charter
school. Today’s Fresh Start cannot present this as a new petition
and still benefit from IUSD’s failure to act within 60 days.
Today’s Fresh Start argues that since its renewal petition
specified the additional Adams school site, approval of the
renewal petition by operation of law approved the Adams location
3At the hearing in superior court on the petition for writ of
mandate, counsel for Today’s Fresh Start referred to the “Petition
for Renewal and Material Revision of the Today’s Fresh Start
Charter School Charter Petition” as a “dual document.”
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because that site was incorporated into the renewed charter and
did not amount to a material revision to the charter. But as we
have explained, the regulatory scheme specifically distinguishes
between the procedure for a petition for renewal and the
procedure for approval of an additional school site after an initial
charter petition has been granted. The renewal process is
slanted toward approval: specific written factual findings are
required if the petition for renewal is to be denied, and failure to
meet the strict timeline for issuing these findings results in the
petition being deemed approved. (§ 11966.4, subd. (c).) The
process for adding an additional location is separately described
as a “material revision.” There is no time frame for consideration
of such a request, no written findings required for denial, and no
provision for the request to be deemed approved in the absence of
timely action. We see no basis for ignoring the distinct process
set out for these two different types of approval.
The strict timeline for denial of a renewal petition is
justified by the need for certainty during the school year.
Parents, students, and teachers need ample notice whether the
charter school will be authorized to continue operation for the
following year. Sufficient time must be available for the charter
school to pursue all necessary review processes if the renewal
petition is denied. (See California State Board of Education
September 2011 Agenda, Final Statement of Reasons, p. 8,
Comment A5.) Allowing approval of a renewal by operation of
law where the chartering authority has failed to act within the
timeline permits the school to continue under its existing charter,
which had been subject to public hearing and detailed review at
the time the charter petition was approved.
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The additional location in this case was being proposed
after the approval of the initial charter, so it did not undergo any
detailed review or public consideration at the time the charter
school was established. Allowing approval of the Adams location
by operation of law would short circuit the consideration of the
proposed location at an open public meeting, as required by
section 47605, subdivision (a)(4). The Legislature did not include
a comparable time imperative for approval of an additional
location, nor is there any regulatory consequence similar to that
for renewal petitions.
We agree with IUSD and with the trial court that the
deemed approval applies to the petition to renew the charter, but
not to the request for a material revision to add the Adams
location. IUSD retained the authority to consider the request for
material revision to add the Adams location despite the fact that
the renewal petition had been deemed approved.
DISPOSITION
The judgment is affirmed.
CERTIFIED FOR PUBLICATION
EPSTEIN, P. J.
We concur:
MANELLA, J. COLLINS, J.
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