Fixing the Prop 39 Facility Fiasco

The way that Oakland Unified allocates facilities is bad for kids, schools, and likely the district’s bank account.  We have all heard about the “too many schools” problem, but here I am talking about Proposition 39 which mandates that districts make “reasonably equivalent” facilities available to public charter school students.

This is an annual ritual fraught with conflict, anger, and lawsuits: a giant game of musical chairs where a couple of district staff are supposed to allocate thousands of charter seats amidst district facilities, smashing large square pegs into a myriad of small round holes.

These tensions have been boiling over in West Oakland, with protests, disruptions, and from what I understand the police being called to a school as protesters disrupted the campus during testing. This issue was the center of the superintendent’s latest newsletter as well (below).

While charter students are public school students whose parents pay taxes and should get access to public school sites, practically, this can’t be done fairly without, in some cases, disrupting existing OUSD sites in bigger or smaller ways.  Or splitting the charters into multiple sites, and usually both.  It’s doubly bad for the charters, who often don’t know where they will be sited, go through an appeals process and delays, and have to put precious time and energy into a fight for something they have a right to be given.

Lawyers are getting paid, 12,000 OUSD seats go empty, and some charters pay over $2,000 per child for sub par private facilities. There has to be a better way, and there is.

The Superintendent Speaks

This challenge was the key theme in the Superintendent’s newsletter, Connecting with Kyla,

We need to unite around a vision that allows for schools with enough space to meet the needs of every Oakland child, period… Over the past few weeks, members of our community have expressed growing concerns, and in some cases hostility, around the possibility of students attending charter schools being housed on the same campus as students attending District-run schools due to Proposition 39 (Prop 39). I write to you today to dispel misperceptions about Prop 39 and to clarify the District’s efforts moving forward. My team and I have made clear our position that the laws governing California charter schools need to be reformed in order to stop producing unintended and inequitable outcomes.

Prop 39 State Mandates
Prop 39 is about district facilities. This law sees district facilities as resources to be used for educating California students regardless of whether they attend a district-run or charter school. Prop 39 mandates that districts make facilities available to eligible charter schools that submit a request for facilities. These facilities must be:

sufficient to accommodate all of the charter schools’ students;

reasonably equivalent to those found at other district schools/facilities; and

contiguous, furnished, and equipped, and shall remain the property of the school district. 

Prop 39 uses specific formulas for determining exactly how much space OUSD has available and interferes with the ability of OUSD and our district-run schools to make decisions for how available space is used. In fact, OUSD has been the subject of a lawsuit since 2016 related to the District’s implementation of Prop 39. This ongoing suit, among other things, alleges that the District has not met its legal obligations in providing reasonably equivalent space to charter schools.

Some of you may have seen the commotion in West Oakland, and may have heard about how protesters disrupted the school day for a set of public school students during testing, yelling and banging on windows.  From what I heard an OUSD principal had to call the cops on their colleagues and the kids they riled up.

That’s trash.

Leases or lawyers

There are only two things the district can do legally; one, they can develop a long term lease outside of the Prop 39 process, or two, they can go through the yearly musical chairs with the drama and uncertainty, or I guess, three, they can get sued and lose.

As a lawyer I agree with Dickens, “the law is a ass.”  Going to court wastes time and money and also subjects you to judicial fiat, which even if well intentioned probably won’t come up with the best plan.   I believe that we are better off negotiating our way to good agreements which provide stability and better outcomes for everyone.

And let’s be clear, there is no free ride.  Charters pay for the sites, which otherwise may sit shuttered costing the district money.  And speaking for Lazear Charter Academy, millions of dollars are going into upgrading the site, which is OUSD’s.  And in many cases, charters continue to use the district custodial staff and pay for them.

Meanwhile, the musical chairs game of Prop 39 is a mess year after year, with stupefying results that will likely cost the district money, and further divide the community.  Nobody likes to get sued, but nobody likes to get screwed either.

Instability is bad for schools, kids and the district

I know a vocal minority don’t like or agree with the Prop 39, but it was approved by the voters overwhelmingly, and gave public charter school students rights to district facilities, setting rules and timelines.  By all means lobby to overturn it, but until then it’s the law.

Districts have ignored the law to their own peril.  LAUSD lost a $7 million lawsuit on Prop 39, and Oakland is poised to lose as well if it comes to that, based on my reading of the law and facts.

It doesn’t have to be this way.  The current approach is administratively very challenging, and leaves few real options.  Meanwhile the district is sitting on undeveloped plots of land, underutilized sites, and other assets to use in reaching agreements with charters before it comes to Prop 39, avoiding the yearly drama, lawsuits, and uncertainty.  And OUSD already has successfully negotiated many agreements.

Schools not knowing where they are going, last minute changes, splitting schools into multiple sites, all these things are bad for kids and learning.  To advocate for policies that consistently create these conditions is bad for kids no matter whose “side” you are on.  And it’s going to create a bad situation for the district, where they will lose a lawsuit, lose money, and may lose autonomy on these decisions.

There is a better way to get this done, I hope we can sit around a table and agree before we are disagreeing in front of a judge.  And our children suffer even more disruptions.