VIA ELECTRONIC MAIL Wanny Hersey, Superintendent/Principal ... Preliminary Offer to... · This letter contains the Los Altos School District’s (“District’s”) Preliminary Offer

201 Covington Road, Los Altos, CA 94024650-947-1150 (tel) * 650-947-0118 (fax)Jeffrey [email protected]

January 31, 2014

VIA ELECTRONIC MAILWanny Hersey, Superintendent/PrincipalBullis Charter School102 West Portola AvenueLos Altos, CA 94022

Re: PRELIMINARY OFFER OF FACILITIES - 2014-2015

Dear Ms. Hersey:

This letter contains the Los Altos School District’s (“District’s”) Preliminary Offer of Facilities ("Preliminary Offer") to the Bullis Charter School (“BCS”) for 2014-2015, pursuant to Cal. Admin. Code tit. 5, § 11969.9.

I. Introduction

For the past ten years, the District has balanced its obligations under Proposition 39 to allocate facilities fairly for an increasing number of students -- charter and District -- across a fixed set of public school facilities. In 2014-15, the District’s intent remains the same – to allocate facilities fairly among the 5,600 plus students that it must house on its 9 campuses.

BCS currently occupies facilities on the Egan and Blach campuses. BCS and all of the other District public schools have thrived and excelled with their current facilities allocations, which have produced first-rate neighborhood public schools, communities built around those neighborhood schools and top-ranked educational performance for all of the public and charter schools in the District. In recent discussions with the District, BCS’ representatives proposed a long-term agreement that would place the charter school on the Egan and Blach campuses for the next 15 years. While this preliminary offer is only for the 2014-15 school year, and the BCS long-term proposal embraced a host of considerations and proposed terms that are inapplicable to a single-year offer, the District agrees with BCS that a placement on the Egan and Blach sites makes the most sense and is the fairest arrangement for all 5,600 public school pupils in the District for 2014-15.

The District continues to strive to make the process of allocating facilities as comprehensive, accessible and transparent as possible. To that end, the District seeks in the Preliminary Offer to set forth the methodology, calculations and

Wanny HerseyJanuary 31, 2014Page 2

rationale behind its facilities allocation in as clear and complete manner as possible.

II. Preliminary Offer of Facilities to BCS

On January 27, 2014, the LASD Board directed staff to issue the District’s Preliminary Offer of Facilities to BCS for the 2014-2015 school year, as follows:

Exclusive use of space and facilities, allocated according to a projected 408 in-District ADA, at Egan Junior High School, located at 100 West Portola, Los Altos, CA;

Exclusive use of space and facilities, allocated according to a projected 197 in-District ADA, at Blach Junior High School, located at 1120 Covington Road, Los Altos, CA;

Details of the classroom, specialized teaching, non-teaching and outdoor space at each campus follow.

A. Facilities Allocated at Egan

In 2014-15, BCS shall be offered the same perimeter of space at Egan as it occupies in 2013-2014. This configuration allocates space for 408 projected BCS students, the same space at Egan that is now allocated for the current (443) population.

The District’s allocation of facilities at Egan is based upon its counterprojection, as set forth in the District’s November 27, 2014 letter:

Grade Level DistrictK 801 812 803 844 83TOTAL 408

The amount and types of space for BCS at Egan, and configuration thereof, will be as follows:


Exclusive Use Space

Teaching Space Number of Classrooms Square Footage

Kindergarten 2.0 @ 1,440 SF each 2,880 SF

Other Grades 15.0 @ 960 SF each 14,400 SF

TOTAL TEACHING SPACE 17.0 Classrooms 17,280 SF

Specialized Teaching Space Number of Classrooms Square Footage

Flex Rooms (Including Art/Science) 2 @ 960 SF each 1,920 SF

Computer Lab 1 960 SF

RSP 1 960 SF

Speech/ELL 1 480 SF

Small Group 1 @ 240 SF each 240 SF

Total Specialized Teaching Space 4,560 SF

Non-Teaching Space

Administrative 1 2,880 SF

Teacher Work/Teacher Lounge (included in Admin)

Storage 1 320 SF

Custodial 1 320 SF

Servery 1 240 SF

PTA 1 320 SF

Child Care 1 1,440 SF

Library 1 1,440 SF

Multi Purpose 1 1,920 SF

Outdoor Stage (Amphitheater) 1 768 SF

Boys/Girls Bathrooms 2 @ 480 SF each 960 SF

Adult Bathrooms 1 Set in Office/Staff Room

Total Non-Teaching Space 10,608 SF

Total Building Space 32,448 SF

1. Additional Space

BCS has a 4,330 SF MPR that it built at its own expense. As the court of appeal noted, it is not clear what the District’s obligations are in a situation where the charter school provides its own facilities. However, in an attempt to balance the reasonable equivalence requirements of Proposition 39, the District offers BCS an additional 1,920 SF of MPR space. The District does not count 4,330 SF as District-offered MPR space, or the grounds under BCS' MPR as blacktop, but does include the grounds under the MPR in overall site size


2. Allocation of Child Care Space

The District’s Preliminary Offer includes building space for child care on a similar arrangement as that offered to students at District comparison schools. The District makes this allocation of child care space even though BCS has never informed the District that it intends to offer child care to its enrollees. The District understands that BCS is using the 2013-14 space allocated for child care for other uses. The above conditions would apply in the event that BCS intends to use this space as child care space in 2014-2015. The following conditions are applied to insure that the child care arrangements will be reasonably equivalent to those at the comparison group schools:

a) At the comparison group schools, the District requires child care providers/vendors to provide their own buildings (i.e., install their own portables). If BCS elects to provide child care at Egan, it shall follow the procedures and requirements used by the District for the provision of child care at its sites:

Child care will be provided by a District-selected childcare provider that has been licensed and currently operates a program within the District;

One of the 1,440 SF buildings at Egan is to be used for child care;

If BCS elects to use this space for child care, it shall reimburse the District the fair market value for leasing this building, consistent with District practice at other school sites;

The Kindergarten play area is to be used as outside space for child care and shared/coordinated with the BCS kindergarten program;

Child care is only for before and after school care for the students attending BCS. No preschool care will be permitted.

The childcare provider will be required to set rates similar to the rates in force at whichever District school the provider currently operates;

The childcare provider agreement will be similar in form to the agreement established at District schools;

The provider is to be selected through an RFP process to be completed prior to the start of the 2014–15 school year; and

BCS shall cooperate fully in the selection process (such as allowing access to the facilities for inspection).

b) If BCS declines to use the allocated 1,440 SF building as child care, the District will reallocate/re-categorize such space as surplus flex space,


and the allocated child care space may be subject to de-allocation in this or future years. In accepting the 2014-2015 Final Offer, BCS must acknowledge that the District has offered after school care space and that BCS has declined to find a third-party provider for before and after school child care in the same manner as child care is provided at District schools.

In addition to the above-outlined exclusive use building space, the District makes the following K-4 appropriate outdoor space available to BCS on an exclusive use basis.

Outdoor Space Square Footage

Kindergarten Playground 7,787 SF

Non-Kindergarten Blacktop 47,951 SF

Turfed Area (“Patch” and Baseball Field)

77,941 SF

Parking Lot 38,058 SF

Other Outdoor Space (Includes Outdoor Space not otherwise identified above)

128,069 SF

Total Outdoor Space 299,806 SF

In BCS’ January 2, 2014 “Reaffirmation” letter, BCS failed to provide the requested additional information or any other verifiable data to support BCS’ projection of an additional 36 children in grades K-4 compared to the District counter projection. Despite the failure of BCS to properly respond, the District offer of space at Egan provides 17,280 SF of classroom space and 15,168 SF of specialized and non-teaching space, beyond the reasonable equivalence standard at the comparison group schools.

3. Start/End times for BCS school day:

The District implements the start/end times for the BCS school day to stagger and separate the pick-up and drop-off times for BCS and Egan. In accordance with BCS’ Request, all BCS students must maintain a school day starting at 8:00 a.m. and ending at 4:45 p.m. at Egan, except for kindergarten students. However, BCS’ required end times may be subject to revision in the Final Offer based on the results of the study performed by the District’s consultants of potential traffic impacts. BCS will also be required to enlist parent volunteers or other personnel to monitor the parking lots at BCS’ facilities at Egan during drop-off and pickup times.

While the District is willing to use a different start and stop time, BCS must provide correct and clearly-defined times in order for the District to perform required analysis of the potential traffic impacts and other impacts on school enrollment, as well as the number of students arriving and departing at each


juncture. In either case, CEQA requirements may create limitations upon the required start and end times for both BCS and Egan.

Attached as Exhibit A is a site diagram depicting the facilities allocated to BCS at Egan.

B. Facilities Allocated at Blach

At Blach Junior High School, the District allocates BCS space on a shared/ exclusive use model that includes teaching, specialized teaching, and non-teaching spaces in accordance with the reasonable equivalence requirements of Proposition 39. The District has adopted this model in response to BCS’ past concerns regarding the allocation of aggregate specialized teaching space while maximizing the utility of such space for BCS.

The District’s allocation of facilities at Blach is based upon its counterprojection, as set forth in the District’s November 27, 2014 letter:

Grade Level District5 756 727 348 16TOTAL 197

Because some of the facilities offered are shared with District junior high pupils, or in proximity to space used by District junior high pupils, certain facilities are expressly designated for use only by certain grade levels. At Blach, the amount and types of space, and configuration thereof, will be as follows:

Exclusive Space Allocated to BCS

TEACHING SPACE: Exclusive Use Allocated upon Grade Level-Projected ADA

Number of Classrooms Square Footage

8.0 @ 960 SF each 7,680 SF

TOTAL 8.0 Classrooms 7,680 SF

SPECIALIZED-TEACHING SPACE (Indoor): Exclusive Use

Specialized Teaching Space(Calculated upon projected ADA of 197 per reasonable equivalence requirements)

Number of Buildings Square Footage

Specialized Teaching Space (Flex) 1 960 SF

Total Building Allocation 1 960 SF


NON-TEACHING SPACE: Exclusive Use

Non-Teaching Space: Allocated upon projected 197 ADA

Number of Buildings Square Footage

Administrative1

1 1,920 SF

Flex Administrative Space (includes compensatory space for 5

th/6

th grade Multi-

Purpose Room, computer lab and teacher lounge

2.)

1 1,440 SF

Library (including resource specialist, small group, CHAC and EL space)

1 1,440 SF

PE Locker Rooms3

(Gr. 7-8 Only) 1 480 SF

Boys/Girls Bathrooms (Grades 5-8 only) 1 480 SF

Total Building Allocation 6.0 5,760 SF

Shared Space Allocated to BCS

In addition to the exclusive use space, BCS will have access to space shared with the District students at the Blach campus as follows:

SPECIALIZED-TEACHING SPACE (Indoor): Shared Use

Specialized Teaching SpaceFrequency/Duration(minutes/week)

Grade Level Access

Drama/Chorus Room (can also be used for Band/Orchestra)

525 minutes/week 7-8 only

Science Lab (2 classrooms provided) 222 minutes/week (x 2) 7-8 only

Multi-Purpose Room (for non-PE use, such as Assemblies)

12 school days academic yr 5-8 only

Scheduled for Shared Specialized-Teaching Space4

MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY

Drama/Chorus 8:00-9:45 a.m. 8:00-9:45 a.m. 8:00-9:45 a.m. 8:00-9:45 a.m. 8:00-9:45 a.m.

Science Labs (2) (Grades 7-8 Only)

2:17–3:03 p.m. 2:17–3:03 p.m. 2:25–3:03 p.m. 2:17–3:03 p.m. 2:17–3:03 p.m.

1 Includes allocation for health, nursing station, counseling, resource specialist space, PTA, speech rooms,

teacher workroom and adult restrooms. The District will also configure a portion of the administrative space for use as a nursing station.

2 No student access will be permitted to the teacher lounge/workroom, consistent with District practice and policy.

3 This allocation does not include outdoor lockers under the reasonable equivalence standard since no

outdoor lockers are provided to Blach students. BCS may request that it install outdoor lockers at Blach at its own expense, as it has done at Egan.

4Please note that the start/end times may be subject to adjustment in the event that the Blach start/end times change for 2014-2015. Efforts will be made to preserve the aggregate number of minutes allocated to BCS.


MONDAY TUESDAY WEDNESDAY THURSDAY FRIDAY

Multi-Purpose Room (non-PE)

Access for twelve (12) school days during the 2014-15 school year for non-P.E. use, such as Assemblies, on a schedule to be determined in consultation with the Blach administration.

SPECIALIZED-TEACHING SPACE (P.E.): Shared Use5

Grades 7-8 Only (Unless Otherwise indicated)

Blacktop & Field at Blach (grades 5-6)

See Note Immediately Below

Shared Use during allocated times

Gymnasium (grades 7-8) Weeks 1-7; 21-24; 34-38Exclusive Use during allocated time.

Multi-Purpose Room (grades 7-8) Weeks 10-11Exclusive Use during allocated time.

Blacktop at Blach (grades 7-8) Weeks 16-20; 27-29Exclusive Use during allocated time.

Tennis Courts (grades 7 -8) Weeks 25-26Exclusive Use during allocated time.

Track & Field (grades 7-8) Weeks 8-9; 12-15; 30-33Exclusive Use during allocated time.

NOTE: The District will make appropriate field and blacktop space available to BCS non 7th and 8th grade students for their P.E. time. A proposed grade P.E. schedule for those grade levels shall be submitted by BCS in its response to the Preliminary Offer. If BCS cannot provide a proposed schedule, the District will allocate P.E. space based on its best judgment and practices at comparison schools in its Final Offer.

ADDITIONAL NON-TEACHING SPACE: Shared Use

Parking Lot

Shared Use of both the large and small parking lots with Blach, first-come, first-served. (As required by the District’s lease obligations, ten spaces will be reserved for the Stepping Stones Pre-School in the smaller parking lot.) In addition, a total of six (6) spaces each in the large lot will be earmarked for exclusive use by BCS and Blach, respectively.

Blacktop

BCS and Blach students will share the Blach blacktop space during recess and lunch periods, assuming that the BCS and Blach schedules are synchronous. If they are not, the District, as an alternative, will allocate space on the track/field area or tennis courts for use by BCS students during recess and lunch periods in coordination with the sharing arrangement for those facilities.

Tennis Courts

BCS shall have exclusive access to the 2 tennis courts at Blach during its Lunch and Recess periods, provided that BCS Lunch/Recess periods do not conflict with Blach’s use of the Tennis Courts. In the event of a conflict, the parties shall meet and confer on a mutually agreeable sharing arrangement.

5 A detailed calendar detailing the sharing arrangement for P.E. space is attached as Exhibit C.

In the event of inconsistencies between the calendar and the chart above, the calendar shall prevail.


1. Shared Space Provisions

To the extent necessary to access facilities that they are permitted to use, BCS students and District students will be allowed shared access to space at Blach such as parking, walkways and common areas as needed to access specialized teaching space and non-teaching space as set forth below. Each school’s principal shall be responsible for ensuring that their students do not disrupt the programs at the other school.

2. Specialized Teaching Space (Grades 7-8): Indoor

Use of and access to the following facilities at Blach are limited to BCS’ 7th and 8th graders: Drama/Chorus Room and Science Classroom, consistent with the reasonably equivalent availability of specialized teaching space at District comparison group schools. The basis for these restrictions is promotion of student safety by limiting access to facilities traditionally used by junior high students to students falling within the appropriate age range for those facilities.

3. Specialized Teaching Space (Grades 7-8): Physical Education

BCS 7-8 grade students may have access to the shared P.E. facilities (track, field, tennis courts, blacktop, gymnasium and Multi-Purpose Room [P.E. use]) within BCS’ allocated sharing time. BCS’ K-6 students will not have access to the above-listed facilities. This access is based on age-appropriate access to those facilities, as is generally replicated in District schools, and avoids having students of disparate age ranges simultaneously sharing physical education space. However, as is noted above, P.E. blacktop space will be allocated for BCS non 7th and 8th at Blach separate from allocation of space for P.E. purposes for BCS 7th and 8th graders.

4. Start/End times for BCS school day

The District implements the start/end times for the BCS school day to stagger and separate the pick-up and drop-off times for BCS and Blach. In accordance with BCS’ Request, all BCS students must maintain a school day starting at 8:00 a.m. and ending at 4:45 p.m. at Blach. However, BCS’ required end times may be subject to revision in the Final Offer based on the results of the study performed by the District’s consultants of potential traffic impacts. BCS will also be required to enlist parent volunteers or other personnel to monitor the parking lots at BCS’ facilities at Blach during drop-off and pickup times.

While the District is willing to use a different start and stop time, BCS must provide correct and clearly-defined times in order for the District to perform required analysis of the potential traffic impacts and other impacts on school enrollment. In either case, CEQA requirements may create limitations upon the required start and end times for both BCS and Blach.

Attached as Exhibit B is a site diagram depicting the facilities allocated to BCS at Blach. Exhibit C outlines shared use of PE facilities.


III. Conditions on Use and Access

Cal. Admin. Code tit. 5, §§ 11969.9(f)(3) and (h)(5)6 allow the District to impose conditions in the Preliminary and Final Offers. The above-described facilities allocated to BCS at Egan and Blach are accessible by BCS students as set forth below.

A. Site Maximum Capacity

The allocation of facilities for BCS at Blach is based on 197 in-District ADA, grades 5-8. Due to site capacity limits, the maximum number of students that BCS may place at Blach at any single time is 300 (limited to one time a month for assemblies and other similar gatherings).

The allocation of facilities for BCS at Egan is based on 408 in-District ADA, grades K-4. Due to site capacity limits, the maximum number of students that BCS may place at Egan at any single time is 711 (limited to one time a month for assemblies and other similar gatherings).7

The District has allocated facilities to BCS across two campuses, with facilities allocated for BCS’ younger students at Egan, and older students at Blach. Any use of facilities by BCS contrary to that allocation is specifically at its own risk.

1. Assembly Notification

BCS has indicated that school-wide assemblies drawing populations from both campuses are a critical component of the educational experience for students. Monthly assemblies are accommodated in the site capacities as noted above. BCS shall provide notification to the principal at Egan and Blach of the dates, times and number of students for each assembly on a quarterly basis. Changes to the schedule will be considered no later than 10 school days prior to an event.

BCS has claimed that the District has restricted BCS’ educational program by providing facilities appropriate for certain grade levels at Blach and by restricting access to those facilities to grades appropriate for those facilities. This supposition is incorrect. BCS is free to design and implement its educational program as the BCS Board deems appropriate. Allocation of facilities from limited District resources involves consideration of grade configuration, and access to specialized teaching space, at the comparison group schools, and does not require the District to provide duplicative facilities to BCS, or specialized teaching space not otherwise available to students at the District’s comparison group schools.

6 Preliminary and Final Offer may include “all conditions pertaining to the space.”

7 This limit may need to be revised for the Final Offer pending the traffic impact study by the

District’s consultants.


B. Right to Reclaim Unused Facilities:

Because public school facilities are in large demand in the District, BCS must make a good faith effort to utilize the facilities that have been allocated to it. For the past 2 years, BCS has largely failed to utilize the full complement of facilities allocated at Blach. Because of the impact on District programs of allocating space to BCS, the District must ensure optimum use of its limited public school facilities. Therefore, the District reserves the right to reclaim possession of any facility (defined as a teaching station, non-teaching station or specialized teaching station specifically enumerated in the Final Offer) in the event that BCS fails to use such facility for a period of 60 consecutive calendar days, excluding recess periods and holidays. BCS’ failure to use any facility for a period of 60 consecutive calendar days, excluding recess periods and holidays, shall be deemed to constitute a waiver of the continued right to use that facility.

C. Right to Modify Schedules

The District recognizes that maintaining flexibility in the scheduling of shared space benefits both parties. If BCS wishes to vary, on occasion, its allocation of shared space, its Principal or authorized school representative should make a written request to the Principal at the co-located school, as well as LASD Assistant Superintendent for Business Services Randall Kenyon. The District reserves the right to grant or deny the request according to the best interest of all affected parties.

The district reserves the right to similarly modify Blach schedules as long as the change does not interfere with BCS’ scheduled usage.

D. Facilities Use Agreement

Cal. Admin. Code tit. 5, § 11969.9(f)(3) and (h)(5), as well as Judge Kleinberg’s November, 2009 order, affirms the District’s right to impose conditions on BCS’ use of the facilities in the Preliminary and Final Offers. After affording BCS one month to negotiate the terms, the District will require BCS to execute a Facility Use Agreement (FUA) no later than May 1, 2014, or 30 days after the issuance of the District’s Final Offer, whichever is later, and BCS’ failure to do so shall constitute a rejection of the Final Offer, and the District reserves the right to refuse to add any additional buildings to BCS’ allocated sites during the summer if BCS fails to execute the FUA by May 1, 2014. BCS’ right to use and occupation of its allocated facility in 2014-2015 is explicitly conditioned upon its timely execution of the FUA. The District will entertain requests for an extension based upon a good faith effort by BCS to finalize negotiations of the FUA. A copy of the proposed FUA is attached as Exhibit P to this Preliminary Offer.


E. Consequences for Noncompliance with Conditions on Use and Access

The conditions enunciated in the Preliminary Offer shall be memorialized in the Facilities Use Agreement between the parties. (See, template Facilities Use Agreement, Exh. P.)

The District will use the following procedures in the event BCS violates any of the terms or conditions of the Final Offer or Facilities Use Agreement in 2014-2015:

1. The District will provide BCS written notice of the alleged violations.

2. BCS shall be provided an opportunity to cure the violations, and provide written evidence of such cure, within 15 calendar days of the District’s initial notice, or for a longer period if otherwise specified by the District.

3. The District shall evaluate BCS’ response. In the event that the District’s Board believes that BCS has potentially violated the Final Offer or Facilities Use Agreement, it shall hold a public hearing, receive evidence and input from persons with knowledge of the alleged violations, and provide BCS an opportunity to respond.

4. Based upon the information submitted at the public hearing, the Board will make factual findings and determine whether to issue sanctions against BCS. The District reserves the right to issue sanctions for either a series of related violations committed by BCS, or individual violations of an unrelated nature that nonetheless constitute a pattern of violating the Final Offer and/or the Facilities Use Agreement.

5. The Board reserves the right to impose sanctions, including but not limited to the following, in the event that BCS violates the Final Offer or Facilities Use Agreement:

a. Adjustment of the terms and conditions of the Final Offer and/or Facilities Use Agreement to prevent future violations by BCS;

b. Referral to BCS’ authorizing agency, the Santa Clara County Office of Education;

c. Reclamation of facilities allocated under the Final Offer.

d. Equitable mitigation of facilities offered in future request years.

e. All other remedies permitted by law.

Nothing in this process shall be deemed to impair, or serve as a prerequisite, to the District seeking judicial relief in lieu of imposing sanctions.

The District’s legal analysis explaining its compliance with Proposition 39 and its implementing regulations is contained on the “Addendum” immediately following this Preliminary Offer.


IV. Preliminary Facilities Offer – Other Terms and Conditions

A. Minimizing Disruption to BCS Staff and Students

Education Code § 47614(b) requires that the District not move a charter school unnecessarily. BCS has been operating in its current space at Egan since the 2004-2005 school year. For the reasons set forth in this letter, adopted as findings by the District Board, the District is moving BCS’ 5th grade program only, out of necessity, and in response to BCS’ demands for greater teaching and non-teaching space than it currently enjoys at the Egan site.

B. Availability

The above-described facility will be made available to BCS no later than August 5, 2014, which is ten working days prior to the anticipated commencement of BCS’ school year on August 19, 2014. However, the District reminds BCS that the District may make its facilities available for use by the community under the Civic Center Act at all times during the calendar year, including such requests that are made during the summer. Please also take note that, to the extent that the District adds any new buildings to the sites allocated to BCS, complete installation of those additional buildings is contingent upon timely delivery and approval. The District will make the sites allocated to BCS at Egan and Blach no later than August 5, 2014, along with all facilities that are available on that date.

C. Furniture and Equipment

Desks, chairs and a sufficient number of whiteboards for 605 students will be provided as required by applicable regulations. The District will furnish the specialized and non-teaching space at Blach. Furniture and equipment will be provided from existing District inventory, or purchased new. The District included review of the condition of furniture and equipment in the Condition Analysis provided in Exhibit E. The District will retain ownership of all furniture and equipment provided to BCS and will expect all furniture and equipment to be returned to the District at the end of its occupation in the same condition as received, reasonable wear and tear excepted. (Ed. Code § 47614(b).)

The District requests that BCS identify any specific requests for furnishings and equipment for the specialized and non-teaching space at Blach in its response to this Preliminary Offer.

Please note that, pursuant to, Cal. Admin. Code tit. 5, § 11969.2(e), “[f]urnishings and equipment acquired for a school site with non-district resources are excluded when determining reasonable equivalence.”


D. Pro Rata Share and Payment Schedule

The District is entitled to charge BCS a pro-rata share of the District's facilities costs paid from unrestricted general fund revenues. BCS’ pro-rata share for 2014-2015 is anticipated to be not less than $267,769, due to the District in full no later than October 1, 2014 or 30 days after receipt of invoice from the District, whichever comes later. However, because the Pro Rata share is based upon the District’s facilities costs from the prior fiscal year, if the calculation of the actual Pro Rata share for 2014-2015 under the Proposition 39 regulations is lower or higher than $267,769, the District will charge the actual Pro Rata share as calculated under the regulations. (See sample Pro Rata Share calculation at Exhibit O.)

E. Request for Supporting Data

Cal. Admin. Code tit. 5, § 11969.9(l) obligates a charter school receiving facilities from a district under Proposition 39 to provide data documenting the in-District and total ADA of the charter school used for apportionment purposes:

The charter school must report actual ADA to the school district every time that the charter school reports ADA for apportionment purposes. The reports must include in-district and total ADA and in-district and total classroom ADA. The charter school must maintain records documenting the data contained in the reports. These records shall be available on request by the school district.

The District will require BCS to submit the names and addresses of all in-District and out of District students used to support every report submitted to the State for apportionment purposes, no later than ten (10) business days following submission of such report to the State.

F. Miscellaneous

This offer of facilities, should it be accepted, is valid only for the 2014-2015 school year and may not be approved for allocation in future years. Should BCS occupy District facilities under Proposition 39 in 2014-2015, the District will require that BCS enter into and execute, prior to taking possession of the facilities, a Facilities Use Agreement with the District, in a form substantially similar to the form the parties agreed to for the 2013-2014 school year. A copy of a proposed Agreement is attached as Exhibit P.

The conditions enunciated in the Preliminary Offer shall be memorialized in the Facilities Use Agreement between the parties. (See, Template Facilities Use


Agreement , Exh. P.) The District reserves the right to propose changes to the attached agreement during the negotiations stage.

Under Title 5, section 11969.9(g) of the California Code of Regulations, BCS must respond to this Preliminary Offer not later than March 1, 2014. If you have any questions, please do not hesitate to contact me.

Very truly yours,

Randall KenyonAssistant Superintendent, Business Services

cc: Board of Trustees, Los Altos School District


ADDENDUM TO PRELIMINARY OFFER –SUMMARY OF DISTRICT’S LEGAL ANALYSIS

I. Consideration of Per-Student Square Footage and Programmatic Utility

A. Seventh and Eighth Grade

The District counterprojected 50 ADA for BCS’ 7th and 8th grades. The District projects, for 2014-2015, an ADA of 578 for Egan, and 541 for Blach. Thus, the average ADA is 559.5 per District junior high school. BCS’ projected 7th and 8th grade ADA equals approximately 8.9% of the average projected District junior high school ADA. Under the “capacity” section of the Proposition 39 regulations, the 8.9% ratio can be used as a rule of thumb in determining the reasonably equivalent allocation of classroom, specialized classroom and non-teaching space.

Proposition 39 and its implementing regulations contemplate that teaching, non-teaching and specialized teaching space shall be allocated to a charter school according to the ratio of facilities to projected ADA as provided in the comparison group schools. While the District has considered the 8.9% ratio as a benchmark in allocating non-teaching and specialized teaching space to BCS’ seventh and eighth grade students, the District has also considered BCS’ past contention that the allocation of aggregate specialized teaching space and non-teaching space has resulted in space and time allocations that had limited practical utility (for example, supplemental allocation of outdoor field space in 14-minute increments.) In response to this concern, the District has also made its best effort to allocate such space to BCS in a manner that considers the programmatic utility of such allocations, irrespective of the 8.9% benchmark, while also balancing the interests of Blach students and staff.

Also, since some specialized and non-teaching space at Blach is being allocated to BCS students in grades 7 and 8, the District considered programmatic utility as well as the SF/ADA calculation at those grade levels for each category of space. (See, Exhibit K)

B. Fifth and Sixth Grade

The District allocates facilities to BCS’ 5th and 6th grade students at the District counterprojection of 147 ADA for those grade levels, and according to the SF/ADA ratios at the comparison group elementary schools.

II. Basis and Methodology for Offer of Facilities

Education Code § 47614(b) requires that a school district “make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school’s in-district students in


conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district.”

The District exercised its discretion in complying with the directive set forth in Education Code § 47614(a) that facilities “should be shared fairly among all public school pupils, including those in charter schools,” and that “[i]n evaluating and accommodating a charter school's request for facilities pursuant to Education Code section 47614, the charter school's in-district students must be given the same consideration as students in the district-run schools…” (Cal. Code Regs., tit. 5,§ 11969.2, subd. (d).) In so doing, the District has considered all relevant facts and circumstances to “strike a fair balance between the needs of the charter school and those of the district-run schools.” (See, e.g., Los Angeles Intern. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1362).)

Under Cal. Admin. Code tit. 5, § 11969.3(a)(1), “[t]he district is not obligated to pay for the modification of an existing school site to accommodate the charter school’s grade level configuration” and may offer non-contiguous facilities to the charter school if the District makes a written finding that the charter school could not be accommodated at a single site, and the District attempts to minimize the number of sites at which the charter school is located and considers student safety. (Cal. Code Regs., tit. 5, § 11969.2(d).)

The District has also considered the admission of BCS’ counsel in open court on March 19, 2012, to Judge Patricia M. Lucas that the District is not obligated to provide BCS with a single exclusive site. (See, court transcript of proceedings of March 19, 2012.) The District has also considered the comments of former Superintendent Charles Weis of BCS' chartering agency, the Santa Clara County Office of Education on March 21, 2012, which confirmed that BCS functions as one school, even if it operates its programs at two school sites, and the opinion expressed by current County Office Superintendent Xavier De La Torre that BCS would need to obtain a material revision of its current charter, or a new charter, to operate two K-8 programs at two sites.

California Code of Regulations, title 5, § 11969.3, defines the process and criteria for determining that facilities offered by a school district to a charter school are “sufficient to accommodate charter school students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending public schools of the school district providing facilities.” The District’s application of these criteria follows:

1. Identification of Comparison Group Sites

Cal. Admin. Code tit. 5, § 11969.3 governs the identification of the comparison group sites. Subsection (a)(1) states as follows:


Comparison Group:

The standard for determining whether facilities are sufficient to accommodate charter school students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending public schools of the school district providing facilities shall be a comparison group of district-operated schools with similar grade levels. If none of the district-operated schools has grade levels similar to the charter school, then a contiguous facility within the meaning of subdivision (d) of section 11969.2 shall be an existing facility that is most consistent with the needs of students in the grade levels served at the charter school. The district is not obligated to pay for the modification of an existing school site to accommodate the charter school's grade level configuration.

Cal. Admin. Code tit. 5, § 11969.3(a)(2) governs the determination of the comparison group schools for districts whose students live in high school attendance areas:

The comparison group shall be the school district-operated schools with similar grade levels that serve students living in the high school attendance area, as defined in Education Code section 17070.15(b), in which the largest number of students of the charter school reside. The number of charter school students residing in a high school attendance area shall be determined using in-district classroom ADA projected for the fiscal year for which facilities are requested.

Thus, the first step for the District in formulating an offer of reasonably equivalent facilities is to identify the high school attendance area in which the largest number of in-District BCS students reside. This identification, in turn, is the basis for identifying the comparison group of District-operated schools.

Education Code § 17070.15(b) defines “attendance area” as “the geographical area serving an existing high school and those junior high schools and elementary schools included therein.” The District serves two high school attendance areas: Los Altos High School and Mountain View High School.

Based on information provided in BCS’ facilities request, following is the breakdown BCS’ projected in-District ADA for 2014-2015 based on elementary and junior high school attendance areas.


Elementary Schools (K-6): (Student Counts refer to BCS-provided in-District ADA)

Los Altos High School:Almond Elementary School 104Covington Elementary School 63 Gardner Elementary School 156Loyola Elementary School 82Santa Rita Elementary School 90Springer Elementary School 65

Mountain View High School:Covington Elementary School 63Loyola Elementary School 82Oak Avenue School 33Springer Elementary School 65

Junior High Schools (7-8):

Los Altos High School:Egan Jr. High School 54Blach Jr. High School 27

Mountain View High School:Egan Jr. High School 54Blach Jr. High School 27

(See, Overlay of School Attendance Areas, attached as Exhibit D)

The Proposition 39 regulations call for the inclusion of a school in a high school attendance area, even if that school only partially falls within the high school attendance area. (See, e.g., Katz v. Los Gatos-Saratoga Joint Union High School District (2004) 117 Cal.App.4th 47 (residence can fall into school attendance area even if only partially contained within that attendance area).) Therefore, elementary and junior high schools falling within both high school attendance areas are listed under both high schools.

To determine “the high school attendance area … in which the largest number of students of the charter school reside” for the purposes of Cal. Admin. Code tit. 5, § 11969.3(a)(2), the District assigned Covington, Loyola and Springer, the three schools residing in both high school attendance areas, to the Mountain View High School attendance area:

Los Altos High School:

Almond Elementary School 104 Gardner School 156 Santa Rita Elementary School 90 TOTAL 350

Mountain View High SchoolCovington Elementary School 63Loyola Elementary School 82Oak Avenue School 33Springer Elementary School 65TOTAL 243

Based on the above chart, it is reasonable to conclude that the majority of BCS students reside in the Los Altos High School attendance area.8 Following the

8 While the District realizes that not all BCS students residing in the Covington, Oak and Springer

attendance areas are likely to live in the Mountain View High School attendance area, for the purpose of determining the high school attendance area in which the greatest number of BCS students reside, applying the assumption that all of these students reside in the Mountain View High School attendance area demonstrates that the majority of BCS students still would fall within the Los Altos High School attendance area.


methodology set forth by the Proposition 39 regulations, the District will use as the comparison group schools the six elementary schools that serve students who fall within the Los Altos High School attendance area: Gardner, Loyola, Covington, Almond, Santa Rita and Springer.

Since both Blach and Egan lie within the Mountain View and Los Altos High School attendance areas, the District will use both junior high schools as the comparison group schools, since both of these junior high schools would constitute the comparison group schools regardless of the attendance area in which the majority of BCS students reside.

2. Reasonable Equivalence Analysis

i. Relevant Factors Under Proposition 39 Regulations

In order to determine whether facilities are “reasonably equivalent,” the District compares the offered facilities to District-operated schools constituting the comparison group of schools.

The District may offer facilities to BCS that are comparable to the comparison group in the following ways:

NO. FACILITY CHARACTERISTIC REGULATORY AUTHORITY

1. Ratio of teaching stations to Average Daily Attendance (“ADA”).

Cal. Code Regs., tit. 5, § 11969.3(b)(1)

2. Specialized classroom space if such facilities are available to the district comparison group (e.g., science laboratories).


3. Non-Teaching space, which the district can share with the charter school (e.g., administrative, kitchen, multi-purpose, and/or play area space).


4. School site size. Cal. Code Regs., tit. 5, § 11969.3(c)(1)(A)

5. Condition of interior and exterior surfaces. Cal. Code Regs., tit. 5, § 11969.3(c)(1)(B)

6. Mechanical, plumbing, electrical, and fire alarm systems in condition and conformity to applicable law.

Cal. Code Regs., tit. 5, § 11969.3(c)(1)(C)

7. Availability and condition of technology resources. Cal. Code Regs., tit. 5, § 11969.3(c)(1)(D)

8. Overall learning environment qualities (e.g., lighting, noise mitigation, and/or size for intended use).

Cal. Code Regs., tit. 5, § 11969.3(c)(1)(E)

9. Furnishings and equipment. Cal. Code Regs., tit. 5, § 11969.3(c)(1)(F)

10. Condition of athletic fields and/or play area space. Cal. Code Regs., tit. 5, § 11969.3(c)(1)(G)

The District considered capacity, condition, location, and other relevant factors --using as a point of reference the set of “comparison group schools” identified above -- to allocate a facility to BCS that meets Proposition 39 standards for


“reasonable equivalence.” Accordingly, the District developed an “Analysis of ‘Reasonably Equivalent’ Space for a Charter School Under Proposition 39” (the “Facilities Analysis”), which is attached hereto as Exhibit E and incorporated herein by reference.

ii. Application of Factors to Determine Reasonable Equivalence

a. Facility Characteristic – Capacity

(i) BCS’ ADA Projections, and the District’s Counterprojections

BCS’ Facilities Request projected the following ADA for grades Kindergarten through 8:

Grade Level BCSK 1001 812 803 844 995 756 747 668 19TOTAL 678

Pursuant to Cal. Admin. Code tit. 5, § 11969.9(d), the District sent to BCS a letter containing its objections to BCS’ projections on November 27, 2013. (Exhibit F) The reasons supporting the District’s objections are stated in that letter and are hereby incorporated by reference.

The District has received and reviewed BCS’ January 2, 2014 “Reaffirmation” letter in response to the District’s projections. (Exhibit G) The District responds to BCS’ objections to the District’s counterprojections as follows:

The District is Not Obligated to Allocate Facilities to BCS’ out-of-District Students:

BCS insinuates in its Reaffirmation letter that the District is obligated to allocate facilities for BCS’ out-of-District students. (Reaffirmation letter, p. 4 (“[w]e therefore put you on notice that regardless of the in-District student projection LASD uses in its Prop 39 analysis for the coming year (and regardless of the per-student space allocation LASD provides), LASD needs to provide facilities that


do not exclude any of BCS’ 711 expected students from simultaneously attending their school.” (Affirmation letter, p. 4.)

It is fundamental that Proposition 39 only obligates the District to offer space sufficient to accommodate a charter school’s in-District students. (Ed. Code section 47614(b) (“[e]ach school district shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school's in-district students“); Cal. Admin. Codetit. 5, § 11969.3 9(b)(1) (“[c]harter school ADA shall be determined using in-district classroom ADA projected for the fiscal year and grade levels for which facilities are requested”).) (Emphasis Provided.) BCS therefore has demanded a facilities allocation that goes beyond the District’s obligations under Proposition 39. While the District has never placed any restriction on BCS with respect to the use of allocated facilities by out-of-District students, its responsibility to share fairly its facilities with all students requires it to allocate facilities only to BCS’ in-District students, as contemplated under Proposition 39.

BCS, under the oversight of the Santa Clara County Board of Education, can add student seats to its program. While the LASD Board sympathizes with out-of-District students when BCS does not attempt to provide facilities for those students, the District and its taxpayers are under no obligation to provide any District facilities for out-of-District students. Given that the sum of District and out-of-District students has reached an unprecedented level compared to the number of available District school sites, providing facilities for out-of-District students is solely the responsibility of the BCS Board. The District can control neither the “seats” offered by BCS nor the children who decide to apply for those seats. As is obvious in the continued increase in the number of seats BCS offers, the District has not impeded the growth of BCS.

Moreover, while BCS contends that the percentage of in-District students at BCS is increasing, the percentage of out-of-District students in the 7th and 8th grade remains significant.

BCS’ Response to District’s Objections to its Projections

BCS argues in its Reaffirmation letter that the District historically underprojects BCS’ fall in-District enrollment in its counterprojections. The following chart shows the variance of each party’s projection/counterprojection from actual fall enrollment since the 2010-2011 school year9:

9 Although the counterprojection procedure first took effect with requests for facilities for the 2009-

2010 school year, the District allocated BCS’ K-6 facilities according to BCS’ projection of 327 ADA at those grade levels.


BCS Provided Fall

Enrollment

BCSProjections

BCS OverProjection(Shaded)

*(Under-

projection in paren-theses)

BCS Over-Projection%

(Shaded)*

(Under-projection in parentheses)

DistrictCounter-

projection

DistrictUnder-

projection(Shaded)

*(Over-

projection in parentheses)

DistrictUnder-

Projection %(Shaded)

*(Over-

projection in parentheses)

09-10 K-6 306 K-6 327 K-6 21 K-6 6% 327 -Actual Allocation (K-6 21) (K-6 6%)

K-6 363 K-6 360 (K-6 3) (K-6 1%) K-6 336.96-349.56 K-6 13.44 K-6 4%

7th

Gr. 15 7th

Gr. 21 7th

Gr. 6 7th

Gr. 29% 7th

Gr. 17.8 (7th

Gr. 2.8) (7th

Gr. 1.6%)10-11

Total 378 Total 381 Total 3 Total 1 % Total 367.36 Total 10.64 Total 2.9%

K-6 406 K-6 405 (K-6 1) (K-6 0.25%) K-6 371.82 K-6 34.18 K-6 9%7

thGr. 13 7

th Gr. 32 7

th Gr. 19 7

thGr. 59% 7

th Gr. 22.86 (7

th Gr. 9.86) (7

th Gr. 43%)

8th

Gr. 14 8th

Gr. 17 8th

Gr. 3 8th

Gr. 18% 8th

Gr. 15 (8th

Gr. 1) (8th

Gr. 1%)11-12

Total 433 Total 454 Total 21 Total 5% Total 409.68 Total 23.32 Total 5.7%

K-6 435 K-6 439 K-6 4 K-6 1% K-6 439 (K-6 4) (K-6 1%)

7th

Gr. 28 7th

Gr. 40 7th

Gr. 12 7th

Gr. 30% 7th

Gr. 15 7th

Gr. 13 7th

Gr. 87%

8th

Gr. 12 8th

Gr. 14 8th

Gr. 2 8th

Gr. 14% 8th

Gr. 12 8th

Gr. 0 8th

Gr. 0%12-13

Total 475 Total 493 Total 18 Total 4% Total 466 Total 9 Total 2%

K-6 543 K-6 542 (K-6 1) (K-6 0.2%) K-6 516 K-6 27 K-6 5%

7th

Gr. 19 7th

Gr. 45 7th

Gr. 26 7th

Gr. 58% 7th

Gr. 30 (7th

Gr. 11) (7th

Gr. 37%)

8th

Gr. 21 8th

Gr. 28 8th

Gr. 7 8th

Gr. 25% 8th

Gr. 26 (8th

Gr. 5) (8th

Gr. 19%)13-14

Total 583 Total 615 Total 32 Total 5% Total 572 Total 11 Total 2%

K-6 593 K-6 5557

th Gr. 66 7

th Gr. 34

8th

Gr. 19 8th

Gr. 1614-15

TBD

Total 678

TBD TBD

Total 605

TBD TBD

This historical analysis indicates that BCS’ K-6 projections are more accurate than its projections for grades 7/8, and for its total enrollment. The District’s counterprojections have taken this historical data into account. However, over the past 3 years, the District’s total enrollment projections are more accurate than BCS’.

In grades K-6, the District, having analyzed BCS’ historical projections for those grade levels, has largely adopted BCS’ projections that are based upon the assumption that 100% of the existing cohort will move up to the next grade level. The District issued counterprojections on the following: 1) BCS’ plan to add a 4th

kindergarten class; and 2) its plan to add 16 students to the current 3rd grade class, to bring the 2014-2015 4th grade class from 83 to 99 students. (The


difference in projections for the 6th grade – 2 students – is minimal.) Although the District issued counterprojections at these two grade levels such as has been noted below, the District asked BCS to submit supporting documentation in support of these projections, and BCS declined to do so. The District again invites BCS to submit further documentation supporting its projections for grades K and 4, which it will evaluate before issuing its Final Offer.

As will be discussed in more detail below, the District based its counter-projections at grades 7/8 upon the historical accuracy of BCS’ initial projections. For this reason, the District considers its counterprojections at these grade levels to be well-taken.

The District will address BCS’ response to the District’s counteprojections for specific grade levels below.

Kindergarten and 4th Grade

BCS projected adding an additional kindergarten class to bring its total to 100, and adding 16 students to its current third grade cohort of 83 students, to bring its projection for that grade level to 99 student next year. The District’s November 27, 2013 Objections to Projections stated that “[s]ince BCS has not provided any information regarding how it admits students off of its waitlist, it has not provided the necessary documentation to support its projections at those grade levels.” (p. 3.) The District further stated in the same letter that “[i]f BCS provides the requested information by January 2, 2014, the District will use that information to re-evaluate its counterprojections for kindergarten and the fourth grade.” (p. 4.)

BCS’ Reaffirmation letter contained argument disputing the District’s counterprojection, but did not provide any specific data or evidence regarding its waitlist, as specifically requested by the District. As BCS provided no further information in its reaffirmation letter to support the increase at Kindergarten and 4th grade, the District will maintain its counterprojections at those grade levels. The District will consider any additional information submitted by BCS to support its Kindergarten and 4th Grade projections in response to this Preliminary Offer.

7th Grade

BCS projected its ADA for the seventh grade for the past four school years as follows:

REQUEST YEAR BCS PROJECTION – 7th

GRADE ACTUAL FALL ENROLLMENT

2010-2011 21 15

2011-2012 32 13

2012-2013 40 28

2013-2014 45 19


BCS projected that the entire cohort of 66 6th graders would enroll in the 7th

grade program in 2014-2015. The District, in its November 27, 2013 letter, noted that this assumption of 100% retention in this cohort was unrealistic, since 7th

grade is an entry point into the District’s junior high schools, and some students may elect to continue junior high at a District or other public school instead of BCS. The District also cited BCS’ historical overprojection at the 7th grade level. In fact, for the current school year, BCS overprojected its 7th grade enrollment by 26 students, its largest overprojection ever.

BCS 6th grade parents submitted a petition containing signatures of parent(s) of 58 6th graders who intend to enroll at BCS next year as 7th graders. While this type of data is helpful to the District in evaluating the reasonableness of BCS’ projections, the petition raises a number of questions and areas of uncertainty:

The District was only able to correlate signatures to 42 current BCS 6th

graders. As a number of parent signatories did not bear the same surname as the student, it was not possible to determine which student those signatures corresponded to, and/or whether some students were represented through a second spouse with a different surname than the student.

Although the Petition represents that the signatories reside within the District, at least 9 students represented reside outside of the District, and would not be counted in a facilities allocation under Proposition 39.

The Petition, based on information currently available to the District, only supports the return of 33 (42 verifiable signatures less 9 out-of-District students), as opposed to 58, in-District 6th graders.

To help preserve the confidentiality of the students represented in the Petition, the District proposes to hold a telephone conference between District and BCS representatives to clarify remaining questions regarding the signatures, or to engage an independent organization to conduct a confidential survey of existing 7th grade families to determine accuracy/matriculation rate.

8th Grade

BCS projected 19 in-District 8th graders for 2014-2015, also assuming that the entire current cohort of 7th graders would return, with no attrition whatsoever. The District issued a counteprojection of 16, consistent with an average historical overprojection of 19.1% by BCS at this grade level. (November 27, 2013 letter, p. 4.)

BCS’ projections for the 8th grade for the past three school years are as follows:


REQUEST YEAR BCS PROJECTION – 8TH

GRADE ACTUAL FALL ENROLLMENT

2010-2011 N/A N/A

2011-2012 17 14

2012-2013 14 12

2013-2014 28 21

Though the attrition level at the 8th grade level is less than that at the 7th grade level, BCS’ assumption of 100% retention is not supported by historical data. Since there is a reasonable basis for the District’s counterprojection, the District will maintain its counterprojection of 16 in-District ADA for the 8th grade.

Grades 1, 2, 3, 5 and 6

The District accepted BCS’ projections at these grade levels, with the exception of the 6th grade. However, the District substantially adopted BCS’ projection for the 6th grade, since the District’s counterprojection was only 2 students lower.

(ii) ADA to Teaching Station Ratio

To determine BCS’ classroom allocation, the District determined the teaching station to ADA ratio at the comparison group schools, in accordance with Cal. Admin. Code tit. 5, § 11969.3(b)(1), which states that “[f]acilities made available by a school district to a charter school shall be provided in the same ratio of teaching stations (classrooms) to ADA as those provided to students in the school district attending comparison group schools.”

For the 2014-15 school year, the District projects, pursuant to Cal. Admin. Code tit. 5, § 11969.3(b)(1) an ADA to teaching station ratio for BCS as follows:

GRADE LEVELS ADA TO TEACHING STATION RATIOKindergarten 22:1

10

1-3 22:14-6 28:17-8 38:1

The chart below demonstrates the reasonably equivalent allocation of classrooms to BCS according to the average ADA to teaching station ratio at the comparison group schools:

10

The District anticipates running a full-day kindergarten in 2014-2015, whereas BCS will run a half-day kindergarten, in which it conducts separate a.m. and p.m. sessions. The District will apply its comparison ADA/teaching station ratio to each BCS kindergarten session as a discrete class, so that each class realizes the benefit of the District’s ADA/teaching station ratio.


BCS PROJECTED ADA BCS CLASSROOM ALLOCATION (ROUNDED)

GRADE LEVEL AND RATIO:(ROUNDED)

K-6 7-8 K-6 7-8

Kindergarten (22:1)11

80 * 2.0 (2.0)

Grades 1-3 (22:1) 245 * 11.05 (12.0)

Grades 4-6 (28:1) 230 * 8.24 (9.0)

Grades 7-8 (38:1)12

* 50 1.32 (2.0)

Total 555 5013

21.29 (23.00) 1.32 (2.0)

Surplus 1.71 Surplus .68 Surplus

(See, Reasonable Equivalence Analysis, Exhibit H, pp. 1-2)

As the above charts demonstrate, the District has provided, for BCS grade levels K-6 and 7-8, classroom allocations in excess of those yielded by the charter school’s ADA/teaching station ratio by rounding up the number of classrooms allocated in 3 of 4 grade level ranges. (The fourth grade level range, Kindergarten, yielded a round allocation of 2.0 classrooms.) The District also notes that its actual class sizes at the comparison group schools (22:1 in grades K-3, and 28-38:1 in grades 4-8) are larger than the in-District ADA to teaching station ratio that will exist at BCS. Therefore, BCS will be able to maintain a smaller in-District ADA to teaching station ratio than that existing in District comparison group schools.

BCS has provided a “Minimum Teaching Stations Benchmark” analysis in its Request. (Request, p. 12, Table 6.) Using BCS’ original projections, BCS calculates the teaching station per student ratio at each grade level at the comparison group schools, and converts that ratio to reach a “minimum teaching station” product for each grade level (after rounding up to the next whole number.)

The District has considered BCS’ methodology and finds that it is at odds with the methodology set forth in the Proposition 39 regulations. BCS’ methodology is based upon the assumption that the District is obligated to calculate the ADA to teaching station ratio for each individual grade level, apply that ratio to each grade level to determine a per grade-level “class loading” standard, and to round up each fraction of a classroom (Request, p. 12) This method could artificially inflate the number of classrooms a charter school could claim almost by two-fold.

11

Assumes that BCS operates 4 kindergarten classes of ½-day each. 12

Junior high school ratio derived from school-projected ADA divided by number of non-specialized teaching stations (e.g., English, Math, History classrooms).13

District counterprojection. (See, Exhibit F)


Nothing in the Proposition 39 regulations supports this approach. Cal. Admin. Code tit. 5, § 11969.3(b)(1), which governs the allocation of teaching space, states as follows:

Facilities made available by a school district to a charter school shall be provided in the same ratio of teaching stations (classrooms) to ADA as those provided to students in the school district attending comparison group schools. School district ADA shall be determined using projections for the fiscal year and grade levels for which facilities are requested. Charter school ADA shall be determined using in-district classroom ADA projected for the fiscal year and grade levels for which facilities are requested.

Nothing in the above-cited provision, which is the only provision in the regulations that addresses the computation of the allocation of teaching stations to charter school students, would compel the District to compute the ADA to teaching station ratio on a per-grade level basis. The pertinent regulation refers to the “same ratio [not ratios] of teaching stations (classrooms) to ADA” as “provided to students in the school district attending comparison group schools.” However, even though the regulations allow for the use of a single ratio, the District in fact uses four (K, 1-3, 4-6 and 7-8), to provide a more accurate grade-level reasonable equivalence ratio for the benefit of BCS students. Therefore, the District has properly exercised its discretion in determining the ADA to teaching station ratio at the comparison group schools that promotes the policy behind Proposition 39 of ensuring that school district facilities are shared fairly among all students.

(iii) ADA to Specialized Teaching Space Ratio

Cal. Admin. Code tit. 5, § 11969.3(b)(2) states as follows with respect to the allocation of specialized teaching space to BCS:

If the school district includes specialized classroom space, such as science laboratories, in its classroom inventory, the space allocation provided pursuant to paragraph (1) of subdivision (b) shall include a share of the specialized classroom space and/or a provision for access to reasonably equivalent specialized classroom space. The amount of specialized classroom space allocated and/or the access to specialized classroom space provided shall be determined based on three factors:

(A) the grade levels of the charter school's in-District students;

(B) the charter school’s total in-District classroom ADA; and


(C) the per-student amount of specialized classroom space in the comparison group schools.

The District’s methodology used to determine the allocation of specialized teaching space and non-teaching space is as follows:

The District compiled, for each comparison group school, a “Checklist for Space and Size Inventory,” containing the availability and dimensions of the teaching space, specialized teaching space and non-teaching space at each of those schools. (See Exhibit I)

The District then determined the average SF/ADA ratio for each category of space at each of the comparison group schools, at both the elementary and junior high levels. The chart listing the comparison group averages, for both elementary and junior high, is attached as Exhibit J.

The District’s allocation of teaching space, specialized teaching space and non-teaching space is based on the District’s consideration of the quantity of each category of space at the comparison group schools, and BCS' in-District ADA. (See Exhibit K)

For the shared Specialized Teaching Space at Blach (e.g., Gym, Track, Field, Multi-Purpose Room, Blacktop and Tennis Courts), the District calculated the percentage of total available time allocated to BCS (as opposed to Blach) under the sharing arrangement (Exhibit C). For each category of space, the square footage allocation to BCS was pro-rated to reflect the percentage allocated to BCS as a function of time.

The District also understands that BCS has no students that require Special Day Classes (“SDC”) arrangements, and will not be allocating space for SDC students to BCS. However, to the extent that any BCS student requires special education facilities as part of providing a Free and Appropriate Public Education and other required services under an Individualized Education Plan, the District will work with BCS to provide the required facilities in a manner that preserves the privacy rights of the student involved.

(iv) ADA to Non-Teaching Space Ratio

Cal. Admin. Code tit. 5, § 11969.3(b)(3) states as follows with respect to the allocation of non-teaching space to BCS:

The school district shall allocate and/or provide access to non-teaching station space commensurate with the in-district classroom ADA of the charter school and the per-student amount of non-teaching station space in the comparison group schools. Non-teaching station space is all of the space that is not identified as teaching station space or specialized classroom space and


includes, but is not limited to, administrative space, kitchen, multi-purpose room, and play area space. If necessary to implement this paragraph, the district shall negotiate in good faith with the charter school to establish time allocations and schedules so that educational programs of the charter school and school district are least disrupted.

The District allocates non-teaching space to BCS according to the per-ADA amount of non-teaching space in the comparison group schools, using the same methodology set forth above under “Specialized Teaching Space.”

The “Checklist for Space and Size Inventory” sets forth non-teaching space at each of those schools. (Exhibit I)

The average SF/ADA ratios for each category of non-teaching space, both for elementary and junior high schools, is set forth in Exhibit J.

The District’s allocation of non-teaching space to BCS is based on the District’s consideration of each category of space at the comparison group schools, the SF/ADA for each category, and its counterprojected ADA for BCS for 2014-2015. (Exhibit K).

The District has also included within each comparison group checklist a category of non-teaching space that consists of the total site size for each comparison group school, minus the total square footage of the aggregate teaching space, specialized teaching space, and categories of non-teaching space that have already been measured, to ensure that the District has accounted for all space at the comparison group sites. (See Exhibit I) Though BCS falls below the District’s SF/ADA ratio for some categories of outdoor space, and exceeds it in others, in the aggregate, BCS’ allocation of outdoor space is commensurate to the reasonably equivalent SF/ADA available at the comparison group schools. (Id.)

(v) Additional Consideration: Classroom Size

The Proposition 39 regulations do not contain any express provisions governing the size of the teaching stations allocated to the charter school. However, to facilitate compliance with the reasonable equivalence standard of the Proposition 39 regulations, the District has considered the average room size of the teaching stations allocated to BCS relative to that allocated to students at the comparison group schools. The figures and calculations for the comparison schools and the allocations to BCS are set forth in the Checklists for Space and Size Inventories in Exhibit I.


The kindergarten teaching spaces allocated to BCS are approximately 1,440 square feet each, and the classrooms for grades 1 through 8 are approximately 960 square feet each, consistent with the California School Accounting Manual designation of a standard classroom size as 960 square feet.

Although not specifically required by Proposition 39 or its implementing regulations, the District is attaching the excess classroom square footage for BCS to demonstrate that the square footage of the teaching spaces offered to BCS is reasonably equivalent to the square footage of the teaching spaces available at the comparison group schools. (See Exhibit M)

b. Facility Characteristic - Condition of Space Available to BCS

Cal. Admin. Code tit. 5, § 11969.3 identifies the factors to be used to determine whether the facility offered to the charter school is reasonably equivalent in terms of “condition:”

Condition.

(1) All of the factors listed below shall be used by the school district and charter school to determine whether the condition of facilities provided to a charter school is reasonably equivalent to the condition of comparison group schools. Condition is determined by assessing such factors as age (from latest modernization), quality of materials, and state of maintenance.

(A) School site size.

(B) The condition of interior and exterior surfaces.

(C) The condition of mechanical, plumbing, electrical, and fire alarm systems, including conformity to applicable codes.

(D) The availability and condition of technology infrastructure.

(E) The condition of the facility as a safe learning environment including, but not limited to, the suitability of lighting, noise mitigation, and size for intended use.

(F) The condition of the facility’s furnishings and equipment.

(G) The condition of athletic fields and/or play area space.

The District conducted a Condition Analysis of the condition of each of the comparison group sites in relation to the BCS facilities with respect to each of the items identified in Title 5, section 11969.3(c) of the California Code of Regulations. This Condition Analysis appears on Exhibit E, and is incorporated herein by reference. The District’s condition analysis included each of the relevant factors set forth in the Proposition 39 regulations.


(i) School site size

The District’s site-size measurements for the comparison group schools are as follows:

ELEMENTARY SCHOOLS K-6

SCHOOL (ADA) SITE SIZE SF/ADA

BCS at Egan (408) 334,079 SF 818.82

Almond (499) 433,137 SF 868.01

Covington (557) 528,822 SF 949.41

Gardner (346) 434,293 SF 1255.18

Loyola (521) 435,600 SF 836.08

Santa Rita (563) 493,099 SF 875.84

Springer (532) 435,600 SF 818.80

JR. HIGH SCHOOLS 7-8

SCHOOL (ADA) SITE SIZE SF/ADA

BCS at Blach (197) 177,842 SF 902.75

Blach (541) 593,740 SF 1097.47

Egan (578) 486,155 SF 841.10

Note: BCS at Egan calculated for ADA projected for grades K-4. BCS at Blach calculated for ADA projected for grades 5-8.

The District has used parcel maps filed with the Office of the County Assessor, Santa Clara County, to determine the acreage of each site. The parcel maps are attached to Exhibit H of the Preliminary Offer, which is fully incorporated by reference in its entirety) for each comparison group school. The District also instructed its architect to make calculations regarding areas allocated to BCS and areas allocated to comparison schools on shared locations.

When compared to the 2009-2010 facilities offer considered by the court of appeal and by the superior court, this Preliminary Offer provides BCS nearly 190% of the space that BCS occupied in 2009-2010 (11.75 v. 6.2 acres, excluding the parking lot.)

Still, the decision in Bullis, supra, 200 Cal.App.4th 1022, does not require the District to offer BCS a prescribed site size. Nonetheless, the District has offered facilities to BCS totaling 11.75 acres. Further, at Egan, BCS will receive over 40% of the total location space as its exclusive campus.

As the Court of Appeal stated:

We disagree with Bullis's contention that “site size by itself shows that [it] has not received ‘reasonably equivalent’ facilities.


[Citation.]” (Fn. omitted.) The fact that a charter school receives a smaller facility than those of the comparison group schools does not, by itself, warrant a finding that the charter school has not been provided reasonably equivalent facilities. Other factors, such as the overall relative condition of the facilities, size and number of buildings, etc., may result in the conclusion that the charter school was offered reasonably equivalent facilities, for example, because the site size discrepancy was neutralized by the charter school's being offered facilities qualitatively superior to those of the comparison group schools. (Bullis, supra, 200 Cal.App.4th at 1052.)

The District understands the court of appeal’s decision to mean that a facilities offer can satisfy Proposition 39’s requirements despite an alleged “site size” discrepancy. Indeed, the court of appeal acknowledged that the District could neutralize an alleged size discrepancy by offering “facilities qualitatively superior to those of the comparison group schools” by other measures under Proposition 39. (Id.)

As set forth herein, the District has offered the following facilities, above and beyond BCS’ entitlement as calculated under Proposition 39. These facilities include:

Access 5 days a week, 2 periods a day, to Drama/Chorus Room at Blach;

Provision of classroom space at a larger SF/ADA, and ADA/teaching station ratio, than that provided to District students. (See, Exhibit M)

Provision of shared access to two (2) Science Classrooms at Blach at a ratio in excess to the reasonably equivalence allocation for that category of space.

As such, the amounts of space allocated to BCS for teaching, non-teaching and specialized teaching space in excess of its allocation were considered in weighing the total site size factor. BCS’ SF/ADA ratio for total site size also falls within the high-low range for that of the comparison group schools, and therefore meets reasonable equivalence standards.

The District’s analysis of the other criteria for determining “condition” at the comparison group schools, as well as the BCS facility, as listed below, is contained in Exhibit E.

(ii) The condition of interior and exterior surfaces

(iii) The condition of mechanical, plumbing, electrical, and fire alarm systems, including conformity to applicable codes


(iv) The availability and condition of technology infrastructure

(v) The condition of the facility as a safe learning environment including, but not limited to, the suitability of lighting, noise mitigation, and size for intended use

(vi) The condition of the facility's furnishings and equipment

(vii) The condition of athletic fields and/or play area space

Based on the analysis attached as Exhibit E, the District has concluded that the facilities offered to BCS meet the reasonable equivalence requirement of Proposition 39 and its implementing regulations with respect to condition. The District also notes that BCS’ School Accountability Report Card, as authored by BCS, signed by the BCS Board, and submitted to the Santa Clara County Officeof Education, lists the condition of its facilities as “Good.”

III. Factors Considered in the 2014-2015 Facilities Offer to BCS

In making this facilities allocation, the LASD Board considered the following factors:

a) BCS’ preference that its entire student population be housed on a single site, rather than multiple sites;

b) BCS’ preference to occupy the Covington School (“Covington”), its desire to occupy another District site as a second choice, and the requirement that the District use reasonable efforts to place BCS near where it wishes to locate;

c) BCS’ January 23, 2013 letter, signed by its Board President, Ken Moore, stating BCS’ willingness to accept an allocation of facilities for 2013-14 that is configured across the Egan and Blach campuses, stating conditions and calling for study sessions;

d) Information concerning BCS’ educational program to the extent deemed relevant to the assignment of facilities;

e) A site that meets the Proposition 39 definition of “reasonably equivalent” when compared to the comparison schools;

f) The ability of the reasonably equivalent site to house BCS in future years to avoid, if possible, having to relocate BCS, as well as the desire to not move BCS unnecessarily;

g) The District’s need to maximize its real property assets for the benefit of the District’s community and constituents, and to balance current and


future needs to house District and other local educational programs at all of its school sites, including the Covington Site;

h) The District’s obligation to consider equally the needs of in-District BCS students with those in regular programs, such that the allocation of facilities results in a “fair sharing” of District facilities for regular and BCS students;

i) The ruling of the Sixth District Court of Appeal in the matter Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 1022 and the ensuing Judgment issued by the Santa Clara Superior Court; and

j) The ruling of the Second District Court of Appeal in Los Angeles Intern. Charter High School v. Los Angeles Unified School Dist. (2012) 209 Cal.App.4th 1348, 1362.

The District also reserves its right to, and will, seek reimbursement from BCS for over-allocated space in accordance with Section 11969.8 of Title 5 of the California Code of Regulations based on inaccurate enrollment projections by BCS.

IV. BCS’ Argument that the District Is Obligated to Provide aContiguous Site

Education Code § 47614(b) contains a requirement that the offer to a charter school of facilities be “contiguous.” California Code of Regulations, title 5, section 11969.2(d) defines contiguous facilities as those “contained on the school site or immediately adjacent to the school site.” That regulation also provides as follows:

If the in-district average daily classroom attendance of the charter school cannot be accommodated on any single school district school site, contiguous facilities also includes facilities located at more than one site, provided that the school district shall minimize the number of sites assigned and shall consider student safety.

If a school district's preliminary proposal or final notification presented pursuant to subdivisions (f) or (h) of section 11969.9 does not accommodate a charter school at a single school site, the district's governing board must first make a finding that the charter school could not be accommodated at a single site and adopt a written statement of reasons explaining the finding. (Cal. Code Regs. tit. 5, § 11969.2(d).)


The requirement related to contiguous facilities was further explained in Ridgecrest Charter School v. Sierra Sands Unified School District (2005) 130 Cal.App.4th 986, 1006. In that case, the court of appeal reversed the trial court’s denial of a charter school’s petition for writ of mandate on the grounds that “[t]he District failed … to demonstrate either that it could not accommodate [the charter school] at a single school site, or that it had minimized the number of sites in a manner consistent with the intent of the Act.”

Moreover, in the Statement of Reasons supporting the Proposition 39 regulations, the California Charter Schools Association proposed that a provision be added to the regulations requiring that the District place a charter school on a single site if one were available. In noting that this language was rejected, the Statement of Reasons stated that “[t]o narrow the reasons that a charter school cannot be accommodated to physical size of facilities goes beyond statute and the Ridgecrest court decision, and may lead to unintended consequences, such as the relocation of a program that serves special students populations (e.g., continuation or special day classes).”

The District considered all of the relevant factors regarding a contiguous facility. The District proposes to locate BCS’ students at its facilities at Egan and Blach. In so doing, the District makes the following findings, which are contained in the accompanying “Resolution of the Board of Education of the Los Altos School District in Support of the Preliminary Facilities Offer to Bullis Charter School for the 2014-2015 school year” (Exhibit N):

There is no school site, other than those currently occupied by BCS, that possess, without modification, all of the facilities that BCS asserts it is entitled to under applicable charter school laws;

The District has minimized the number of sites offered to BCS students by locating BCS students on two sites;

The District has determined that it is in the best interests of all of the students residing in its boundaries to avoid school closure;

Covington houses the District’s special education program. Closing Covington for the purposes of handing the site to BCS would require the District to move its special education students. However, special education students are more adversely impacted by changes in their everyday routine, including school location, than are regular education students.

Closing an elementary school would require the District to house its


approximately 3500 elementary students in six elementary schools, which would exceed the optimal capacity of those sites and compromise the District’s educational programs, as well as these students’ developmental and emotional progress.

As noted below, the District has allocated space between Blach and Egan in a grade configuration that maximizes SF/ADA for total site size for BCS students, and therefore promotes student safety and reduces the flow of traffic at Egan.

The findings supporting the placement of BCS students in this configuration are contained in more detail in the Resolution ratified by the Governing Board at its January 27, 2014 meeting, which is hereby incorporated by reference into this Preliminary Offer. (See, Resolution of January 27, 2014, attached as Exhibit K.)

BCS has requested that the District allocate BCS facilities between Egan and Blach in a grade level configuration that best accommodates students at each site. (Reaffirmation Letter, p. 5.) To this end, the District has made its best efforts to allocate facilities according to a grade-level configuration that would optimize the space allocated to BCS at each site. The District has concluded that allocating facilities at Egan based on ADA projections for grades K-4 (408 students), and Blach based on ADA projections for grades 5-8 (197 students), allows the access to the most optimum level of space, in terms of SF/ADA and other measures, for each BCS student. Put another way, the District has determined that allocating based on ADA projected for grades K-4 at Egan and 5-8 at Blach provides the configuration leading to the maximum level of space, in terms of total site-size SF/ADA, for BCS students.


Exhibits to Preliminary Offer

Exhibit Name

Exhibit A Egan Site Diagram

Exhibit B Blach Site Diagram

Exhibit C Schedule of Shared Use of Physical Education Facilities at Blach

Exhibit D Overlay of Attendance Areas

Exhibit E Reasonable Equivalence Analysis: Condition

Exhibit F LASD November 27, 2013 Objections to Projections

Exhibit G BCS January 2, 2014 Response to Objections to Projections

Exhibit H Reasonable Equivalence: Capacity

Exhibit I Checklist of Space and Size Measurements: Comparison Schools

Exhibit J SF/ADA Chart: Specialized and Non-Teaching Space

Exhibit K Summary of SF/ADA Chart: BCS Allocations of Specialized and Non-Teaching Space

Exhibit L Calculation of BCS percentage of Specialized Teaching P.E. Space

Exhibit M SF/ADA Chart: Classrooms

Exhibit N LASD Board Resolution

Exhibit O Calculation of Pro-Rata Share

Exhibit P Template Facilities Use Agreement

Documents

VIA ELECTRONIC MAIL Wanny Hersey, Superintendent/Principal ... Preliminary Offer to... · This letter contains the Los Altos School District’s (“District’s”) Preliminary Offer