Charter Schools: Four Common Pitfalls For School Districts To Avoid

Lozano Smith Client News Brief
January 2013
Number 4

Charter schools offer advantages to school districts by providing parents a wider choice of educational placements for their children. Many times, however, school districts wind up subsidizing a charter school's operations. Below are four common pitfalls for school districts to avoid when a charter school comes to town:

  1. Providing and maintaining charter school facilities. Sometimes the school district is required, by law, to provide facilities (e.g. Prop. 39); sometimes not. Either way, a school district's facilities agreement with a charter school should clearly delineate which party is responsible for maintenance, repairs, custodial services, and technical infrastructure. If the district houses the charter school at a closed school site, providing maintenance and custodial services is an opportunity to preserve the jobs of school district employees. However, if the school district takes on the obligation to clean, repair and maintain the facilities, it should negotiate sufficient fees in order to avoid subsidizing the charter school's facilities costs.

  2. Building or buying charter school facilities. Some charter schools purchase or build their own facilities. The charter school may request that the school district adopt a resolution exempting the charter school from local zoning ordinances. (Gov. Code §§ 53094, 53097.3.) Or, the school district may be the "lead agency" for CEQA purposes. (Pub. Res. Code § 21067.) There are many political and legal issues to consider before a school district steps into the facilities abyss. The school district should have a written agreement with the charter school stating that the charter school will defend and indemnify the district in any litigation that may result.

  3. Calculating the special education encroachment contribution. A school district may find itself to be the ultimate guarantor of special education for a charter school's students with disabilities. (Ed. Code § 47640.) In exchange, the charter school contributes its "equitable share" to the school district's special education encroachment. (Ed. Code § 47646(c).) The school district will have likely incurred staffing and legal costs to ensure that the charter school is providing a free appropriate public education to its students. Therefore, the district should have a written agreement in place that clearly states how the charter school's encroachment contribution will be calculated.

  4. Calculating the district's "in lieu" property tax payments to the charter school. If the school district is the "sponsoring local educational agency" of the charter school, the district is responsible for making monthly "in lieu" payments to the charter school. (Ed. Code § 47635.) The amount of these payments depends on the charter school's average daily attendance. A school district that initially denies a charter school petition, which is later approved by the county board of education, is still obligated to make these payments. (Ed. Code § 47632(j)(2).) The state will "backfill" the school district for the funding, but the payments may still impact the district's cash flow. Further, basic aid districts do not receive complete reimbursement from the state. (Ed. Code § 47663.) The district should be aware of its "in lieu" payment obligations before a charter petition is granted. The charter school should be obligated, in writing, to provide the school district with accurate and current average daily attendance information.

If you have any questions about charter schools, please feel free to contact one of our eight offices located statewide. You can also visit our website, follow us on Facebook, or download our Client News Brief App.

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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.