Magnolia Science Academy Legal Document over several violations of Educational Law

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DANNIS WOLIVER KELLEY

SUE ANN SALMON EVANS Attorney at Law

[email protected]

Long Beach

January 7, 2016

CALIFORNIA'S THOUGHT LEADERS)' IN EDUCATION LAW '/

VIA EMAIL AND U.S. MAIL

Jon R. Gundry, County Superintendent of Schools Angelica M. Ramsey, Ed.D. Santa Clara County Board of Education Santa Clara County Office of Education 1290 Ridder Park Drive San Jose, CA 95131

Re: Mount Pleasant Elementary School District, Magnolia Science Academy, Charter Material Revision; Our File 5108.1108

Dear Mr. Gundry, Dr. Ramsey and Santa Clara County Board of Education:

The Mount Pleasant Elementary School District ("District") has received your correspondence, dated December 17, 2015, in which you inform the District that the Santa Clara County Board of Education ("SCCBOE") will hold a public hearing on January 13, 2016, on the material revision to Magnolia Science Academy ("MSA" or "Charter School") Santa Clara Countywide Charter Petition ("Petition"). For the reasons provided below, the District strongly objects to this "material revision," which includes a change in the Charter School's location, and advises SCCBOE that MSA's relocation to, and subsequent operation within, the District's boundaries was made without compliance with law and proper SCCBOE approval. This failure to comply with law cannot be rectified by the proposed "material revision."

According to its revised Petition, MSA commenced operations as a countywide charter school pursuant to Education Code section 47605.6 1 in September 2010, and thereafter leased a facility from the Santa Clara Unified School District. (Revised Petition, p. 8-9.)2 However, in the fall of 2015, MSA moved from Santa Clara to its current location at the National Hispanic University ("NHU") at 14271 Story Road in San Jose, which is located within the District's boundaries.

1 All statutory references are to the Education Code unless otherwise indicated. 2 A copy of the revised Petition is found at http: //www.sccoe.org/depts/ esb/c[)a rterschoo l s - offi ce/Paq~defa ult.aspx .

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DEDICATION

WISDOM

KNOW-HOW

Jon R. Gundry, County Superintendent of Schools Angelica M. Ramsey, Ed.D. Santa Clara County Board of Education January 7, 2016 Page 2

As you know, section 47605.6, subdivision (a)(1)(B)(3), expressly regulates the procedures for requesting a material revision to a countywide charter for the establishment of additional sites within the boundaries of a county board of education. Specifically, the statute provides as follows:

After receiving approval of its petition, a charter school that proposes to establish operations at additional sites within the geographic boundaries of the county board of education shall notify the school districts where those sites will be located. The charter school shall also request a material revision of its charter by the county board of education that approved its charter and the county board of education shall consider whether to approve those additional locations at an open, public meeting, held no sooner than 30 days following notification of the school districts where the sites will be located. If approved, the location of the approved sites shall be a material revision of the school's approved charter.

(Emphasis added.)

MSA changed its location without authorization from SCCBOE or notice as required by law. As a preliminary matter, section 47605.6(a)(1)(B)(3) only permits material revisions to countywide charters for additional sites within a county board's geographic boundaries. As stated in the revised Petition, MSA moved to NHU in the fall of 2015. Accordingly, NHU accommodated a relocation of MSA's already-existing charter. Therefore, NHU does not constitute an additional site allowed under the plain language of Section 47605.6(a)(1)(B)(3). Because NHU does not constitute an additional site, MSA's proposed material revision is invalid as a matter of law. Indeed, identification of the location is a key component to approval of a countywide charter under section 47605 .6

Second, in violation of section 47605.6(a)(1)(B)(3), MSA did not provide any notice to the District that it "proposes" to establish operations within the District's boundaries. To the contrary, and unbeknownst to the District, MSA already relocated to NHU in the fall of 2015. To the extent that MSA suggests that your December 17, 2015 correspondence constitutes the requisite notice (which it cannot by virtue of the fact that Section 47605.6 requires the charter school, not the county office, to provide notice), the District further objects on the ground that nothing contained in the correspondence references or even suggests that MSA proposes to establish an additional site within the District's boundaries. The correspondence summarily states that SCCBOE will hold a public hearing on an undefined material revision to the Petition.

Lastly, in connection with MSA's failure to provide the requisite notice, the District objects on the ground that MSA was required to submit, subject to SCCBOE approval, the material revision before MSA relocated its charter to NHU. The statute requires the public hearing on the material revision to occur at least "30 days following notification of the school districts where the sites will be located." Thus, if the material revision consists of a change in location, as it does here, then the public hearing on and subsequent vote to grant or deny the revision would be rendered meaningless if actual relocation already occurred without approval. Accordingly, MSA

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has relocated to NHU without obtaining proper authorization or complying with the requisite procedures under Section 47605.6. 3

It is clear that the instant "material revision" is designed to be an post hoc remedy of MSA's failure to comply with section 47605.6(a)(1)(B)(3). However, trial courts throughout the State have repeatedly held that material revisions cannot otherwise rectify or overcome a charter school's initial failure to comply with the Charter Schools Act, especially with provisions setting forth prerequisites for a charter school's location. (Newhall School District v. Acton-Agua Dulce Unified School District, eta/. (Super. Ct. Los Angeles County, 2014, No. BS149061); San Diego Unified School District v. Alpine Union School District (Super. Ct. San Diego County, 2015, No. 37-2014-00021153-CU-MC-CTL).)

Compliance with these location requirements ensures that charter schools are actually serving the communities proposed in their authorized charters. However, the Charter School has unilaterally relocated approximately 15 miles away from its authorized location, unbeknownst to the District, to serve an entirely different demographic in East San Jose without providing any notice to the communities that will be affected. MSA's unilateral relocation without the county's authorization constitutes a wholesale failure to comply with the location requirements as explained above.

In addition to violating law, MSA has violated SCCBOE's own oversight guidelines. On or about December 14, 2015, SCCBOE held a study session regarding charter school oversight, which included, among other things, reviewing SCCBOE's Guidelines Regarding Consideration of Countywide Charter Petitions. These guidelines were established "to assist both the Board and charter petitioners in assessing whether a petition for a countywide charter has satisfied the legal requirements for approval" and expressly require petitioners to provide advance notice to school districts of their intent to operate within their boundaries. (Guidelines, p. 4.) According to SCCBOE's own oversight guidelines with respect to charter location, Petitioners must satisfy each of the following:

A. Petitioner(s) provided written notice to the superintendent of each school district in which it plans to operate a facility.

B. Notice was provided at least 30 days prior to the submission of the petition to the Board.

C. Petitioners provided a copy of the charter petition to the superintendent of each district in which the petitioner plans to operate a facility on or before the date on which the petition was submitted to the Board.

D. Petitioners provided the Board with a copy of the written notice(s) It provided to the superintendent(s) of the school district(s) in which it plans to operate a facility.

E. Petitioners have provided the Board with written assurance that a copy of the petition was given to the superintendent of each school district In which it plans to operate a facility on or before the date on which the petition was submitted to the Board.

3 Notably, public records reflect that the lease with Santa Clara Unified School District by its terms did not provide for extension or renewal. As such, MSA was well aware that it would be required to find an alternative location from the time it executed the lease agreement.

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(Guidelines, p. 4.) MSA complied with none of these criteria. These oversight guidelines expressly require charter schools to provide advance notice to districts of Its intent to locate within their boundaries prior to the submission of the petition, or if applicable in this case, the material revision. As discussed above, MSA relocated first while asking for "authorization" later, all without providing any notice or even a copy of the material revision to the District.

As stated in SCCBOE Board Policy 0420.41, "[i]t is the policy of the Santa Clara County Board of Education to ensure appropriate oversight of all charter schools for which it has oversight responsibility." The District anticipates SCCBOE will provide effective oversight over charter schools under its authority. Thus, it must be emphasized that, because MSA is in clear violation of law and SCCBOE's own oversight guidelines, SCCBOE must take all necessary and appropriate steps to ensure that MSA is operating in accordance with law, including by taking action to deny the material revision for failure to comply with law and SCCBOE policy. (See, Ed. Code, § 47604(c).)

The District hopes SCCBOE shares this concern and takes appropriate oversight action over MSA in light of the Charter School's clear violations. The District strongly objects to the proposed material revision and urges SCCBOE to exercise sound judgment in further handling this matter.

Very truly yours,

D~ Sue Ann Salmon Evans

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