Supreme Court of California Justia
Docket No. S208611
Cal. Charter Schools Assn. v. L.A. Unified School Dist.


Filed 4/9/15

IN THE SUPREME COURT OF CALIFORNIA

CALIFORNIA CHARTER SCHOOLS
ASSOCIATION,
Plaintiff and Respondent,
S208611
v.
Ct.App. 2/5 B242601
LOS ANGELES UNIFIED SCHOOL
DISTRICT et al.,
Los Angeles County
Defendants and Appellants.
Super. Ct. No. BC438336
____________________________________)

In 2000, California voters enacted Proposition 39, which requires school
districts to share their facilities with charter schools so that charter school students
have access to facilities ―reasonably equivalent‖ to those available to other public
school students. (Ed. Code, § 47614, as amended by Prop. 39, as approved by
voters, Gen. Elec. (Nov. 7, 2000).) In 2002, the State Board of Education (Board)
issued regulations on how to implement this requirement. For more than a decade,
the Board‘s regulations and the underlying mandate of Proposition 39 have been
the subject of considerable litigation. (See, e.g., Bullis Charter School v. Los Altos
School Dist. (2011) 200 Cal.App.4th 1022 (Bullis); New West Charter Middle
School v. Los Angeles Unified School Dist. (2010) 187 Cal.App.4th 831;
Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130
Cal.App.4th 986; Environmental Charter High School v. Centinela Valley Union
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High School Dist. (2004) 122 Cal.App.4th 139; Sequoia Union High School Dist.
v. Aurora Charter High School (2003) 112 Cal.App.4th 185.)
This case, an action for declaratory relief, concerns the meaning of a Board
regulation that governs the allocation of classrooms to charter schools. The
regulation requires a school district to count the number of classrooms in certain
―comparison group schools‖ and to divide the average daily attendance (ADA) of
students at those schools by the number of classrooms. The resulting
ADA/classroom ratio dictates how many classrooms the district must provide to a
charter school that requests facilities.
In allocating classrooms to charter schools, the Los Angeles Unified School
District (District) uses what it calls ―norming ratios,‖ which purport to establish
throughout the District a uniform student/teacher ratio in a given grade level. The
District contends that its use of these districtwide ratios, rather than ratios
developed from counting classrooms in comparison group schools, satisfies the
Board‘s regulation and provides reasonably equivalent facilities to charter schools.
The District further contends that the classrooms to be counted are only those that
are, in the words of the applicable regulation, ―provided to‖ K-12 students, and not
classrooms that are dedicated to other uses, such as preschool or adult education.
The California Charter Schools Association (CCSA) contends that the
District violates the applicable regulation by using districtwide norming ratios
rather than counting classrooms in comparison group schools to determine the
allocation of classroom facilities. CCSA also contends that under the applicable
regulation, the classroom count used to determine the ADA/classroom ratio must
include some classrooms dedicated to preschool instruction or adult education as
well as some classrooms used for noninstructional purposes. According to CCSA,
the District‘s norming ratios improperly reduce the number of classrooms to which
charter schools are entitled.
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We agree with CCSA that the District‘s use of norming ratios, rather than
counting classrooms in comparison group schools, violates the regulation
governing the allocation of classrooms to charter schools. At the same time, we
agree with the District that in allocating classrooms to charter schools, it must
count only those classrooms provided to K-12 noncharter students and not
classrooms dedicated to other uses. However, counting classrooms provided to K-
12 students is not tantamount to counting classrooms staffed by teachers. The
District‘s equation of the two in its norming ratios is another reason why those
ratios do not comply with the Board‘s regulations. The District must therefore
prospectively modify its approach to allocating classrooms to charter schools.
I.
The Charter Schools Act of 1992 seeks ―to provide opportunities for
teachers, parents, pupils, and community members to establish and maintain
schools that operate independently from the existing school district structure.‖
(Ed. Code, § 47601.) Charter schools are public schools ― ‗free from most state
laws pertaining uniquely to school districts.‘ ‖ (United Teachers of Los Angeles v.
Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 521.) The freedom
granted to charter schools is intended to promote choice and innovation, and to
stimulate ―competition within the public school system.‖ (§ 47601, subd. (g).)
Like other public schools, charter schools are ―accountable for meeting
measurable pupil outcomes.‖ (Id., subd. (f).)
Charter schools receive state funding primarily based on the number and
type of students they serve. (Ed. Code, § 47633.) Because charter schools have
limited means of obtaining public funds to cover the cost of facilities, they often
must rely on school facilities within the control of the school districts they
compete with. Before the adoption of Proposition 39, a charter school was entitled
―to use, at no charge, facilities not currently being used by the school district for
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instructional or administrative purposes, or that have not been historically used for
rental purposes.‖ (Former § 47614, as added by Stats. 1998, ch. 34, § 15, p. 202.)
In other words, charter schools had access only to public school facilities that
districts weren‘t using.
Proposition 39 changed the way school districts must share facilities with
charter schools. It amended Education Code section 47614 (hereafter section
47614) so that it now reads in relevant part: ―(a) The intent of the people in
amending Section 47614 is that public school facilities should be shared fairly
among all public school pupils, including those in charter schools. [¶] (b) Each
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 in conditions reasonably equivalent to those in which
the students would be accommodated if they were attending other public schools
of the district. Facilities provided shall be contiguous, furnished, and equipped,
and shall remain the property of the school district. The school district shall make
reasonable efforts to provide the charter school with facilities near to where the
charter school wishes to locate, and shall not move the charter school
unnecessarily.‖ Section 47614 further provides in part: ―Each year each charter
school desiring facilities from a school district in which it is operating shall
provide the school district with a reasonable projection of the charter school‘s
average daily classroom attendance by in-district students for the following year.
The district shall allocate facilities to the charter school for that following year
based upon this projection.‖ (§ 47614, subd. (b)(2).)
Subdivision (b)(6) of section 47614 provides that the ―State Department of
Education shall propose, and the State Board of Education may adopt, regulations
implementing this subdivision, including but not limited to defining the terms
‗average daily classroom attendance,‘ ‗conditions reasonably equivalent,‘ ‗in-
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district students,‘ ‗facilities costs,‘ as well as defining the procedures and
establishing timelines for the request for, reimbursement for, and provision of,
facilities.‖ This rulemaking authority ―complements [the Board‘s] general
authority in [Education Code] section 33031 to ‗adopt rules and regulations not
inconsistent with the laws of this state . . . (c) for the government of the day and
evening elementary schools, [and] the day and evening secondary schools . . . .‘ ‖
(California School Bds. Assn. v. State Bd. of Education (2010) 191 Cal.App.4th
530, 542.)
Pursuant to this regulatory authority, the Department of Education proposed
and the Board adopted regulations to implement Proposition 39. The regulations
included California Code of Regulations, title 5, section 11969.3, which provides
the means for determining ―whether facilities provided 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, as required by
Education Code section 47614(b).‖ (All citations to regulations are to this title
unless otherwise indicated.)
According to the regulation, ―[t]he 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.‖
(§ 11969.3, subd. (a)(1).) ―The comparison group shall be the school district-
operated schools with similar grade levels that serve students living in the high
school attendance area . . . 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
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the fiscal year for which facilities are requested.‖ (Id., subd. (a)(2).) When
students in a district do not attend high school based on attendance areas, ―the
comparison group shall be three schools in the school district with similar grade
levels that the largest number of students of the charter school would otherwise
attend. For school districts with fewer than three schools with similar grade
levels, the comparison group shall be all schools in the school district with similar
grade levels.‖ (Id., subd. (a)(3).)
Subdivision (b)(1) of section 11969.3 (hereafter section 11969.3(b)(1))
provides that the ADA/classroom ratio in the comparison group schools dictates
the number of classrooms a school district must allocate to a charter school:
―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. The number of teaching stations (classrooms) shall be
determined using the classroom inventory prepared pursuant to California Code of
Regulations, title 2, section 1859.31, adjusted to exclude classrooms identified as
interim housing.‖ (§ 11969.3(b)(1).)
California Code of Regulations, title 2, section 1859.31 (hereafter section
1859.31) is a regulation implementing the Leroy F. Greene School Facilities Act
(Ed. Code, § 17070.10 et seq.), which governs the allocation of state funds for
school facilities construction. The regulation requires preparation of a school
district inventory of classrooms to determine funding eligibility for facility
construction and modernization. Under section 1859.31, ―[t]he district shall
prepare a gross inventory consisting of all classrooms owned or leased in the
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district . . . .‖ Included in this inventory are any classrooms ―for which a contract
was signed for the construction or acquisition of facilities‖ or ―for which
construction work has commenced‖ at the time of application for funds requested
under the act; classrooms used as ―shops, science laboratories, computer
laboratories, or computer classrooms‖; classrooms ―used for preschool programs‖;
classrooms ―converted to any non-classroom purpose including use by others‖;
and classrooms ―included in a closed school.‖ (Ibid.)
In addition to the classroom sharing requirement of subdivision (b)(1) of
section 11969.3, subdivision (b)(2) of the same regulation provides for the
equitable sharing of ―specialized classroom space, such as science laboratories,‖
and subdivision (b)(3) addresses the sharing of ―non-teaching station space‖ such
as kitchens and administrative space.
To be eligible for the allocation of classrooms and other space in public
schools, a charter school must submit a request for facilities documenting its
projected ADA and other pertinent information by November 1 of the year before
the school year for which the facilities are requested. (§ 11969.9, subds. (b), (c).)
By the following February 1, the school district receiving the request must make a
preliminary space allocation proposal that ―[at] a minimum‖ ―shall include (1) the
projections of in-district classroom ADA on which the proposal is based, (2) the
specific location or locations of the space, (3) all conditions pertaining to the
space, including a draft of any proposed agreement pertaining to the charter
school‘s use of the space, and (4) the projected pro rata share amount and a
description of the methodology used to determine that amount. The district shall
also provide the charter school a list and description of the comparison group
schools used in developing its preliminary proposal, and a description of the
differences between the preliminary proposal and the charter school‘s facilities
request . . . .‖ (Id., subd. (f).) After the charter school has had an opportunity to
7

respond to the proposal, the district must make a final space offer to the charter
school by April 1, and the charter school must notify the District whether it
accepts the offer within 30 days or by May 1, whichever is later. (Id., subds. (g)–
(i).)
II.
CCSA is a nonprofit charter school membership organization whose
members include several charter schools in the District. On May 17, 2007, CCSA
filed two lawsuits against the District, claiming that the District had failed to
comply with Proposition 39 in extending facilities offers to charter schools. On
April 22, 2008, CCSA and the District entered into a settlement agreement to
resolve those lawsuits.
Paragraph 3 of the settlement agreement states: ―Provided that a CCSA
member charter school submits [a] future facilities request that is legally sufficient
under Proposition 39 and any Proposition 39 implementing regulations in effect at
that time, LAUSD shall make a facilities offer to that charter school that complies
with Proposition 39 and any Proposition 39 implementing regulations in effect at
that time. This obligation shall apply to requests for facilities that are submitted
for the 2008-2009 school year, shall inure to the benefit of all CCSA member
charter schools . . . , and shall continue for the term of this Agreement [i.e., until
June 30, 2013].‖
On May 24, 2010, CCSA filed a complaint in superior court against the
District, alleging breach of the settlement agreement (first cause of action) and
violation of Proposition 39 (seventh cause of action). The complaint sought
specific performance, a permanent injunction, appointment of a special master,
and declaratory relief. CCSA filed a motion for summary adjudication of the first
and seventh causes of action, which the trial court granted in part. The trial court
ordered the District to extend facilities offers to all charter schools that submitted
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legally sufficient facilities requests for the 2011–2012 school year and to make
Proposition 39-compliant facilities offers to all CCSA member charter schools that
submit legally sufficient facilities requests for future school years until the end of
the settlement agreement. The trial court denied CCSA‘s requests for injunctive
and declaratory relief. The District did not challenge this order.
On May 17, 2012, CCSA filed a motion to enforce the trial court‘s order
with regard to the District‘s facilities offers for the 2012–2013 school year.
According to CCSA, those offers, which were based on the District‘s norming
ratios, failed to provide facilities to charter schools in the same ADA/classroom
ratio as those provided to students attending comparison group schools, as
required by section 11969.3(b)(1). The District‘s 2011–2012 budget described the
norming ratio as follows: ―Most District schools receive their base allocations of
teachers, school administrators, school clerical positions, and various resources on
the basis of Board-approved ‗norms,‘ which determine the resources to be
allocated individual schools.‖ In response to charter school requests for facilities,
the District explained that ―consistent with norming ratios used for District
students, the District provides classrooms to Charter School students at a ratio of
24:1 for grades K-3; 30.5:1 for grades 4-6; 28:1 for grades 7-8; and 30:1 for grades
9-12.‖ According to the District, the norming ratios are an appropriate way to
ensure that the ADA/classroom ratio in each charter school is reasonably
equivalent to the ADA/classroom ratio in comparison group schools. By contrast,
CCSA argued that the District‘s approach did not make use of comparison schools
as section 11969.3 requires and excluded classrooms that should have been
counted, thereby improperly inflating the ADA/classroom ratio used to determine
the number of classrooms provided to charter schools.
Consistent with the level of generality at which the litigation was
conducted, the trial court did not determine whether a particular charter school
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was entitled to more classrooms. Instead, the trial court ordered that ―in
determining the number of teaching stations to provide to charter schools
requesting facilities under Prop. 39, [the District] must comply with Section
11969.3(b)(1) of the Prop. 39 Implementing Regulations, and must not use
‗norming ratios‘ to reduce teaching stations offered to charter schools in the
future.‖
The District appealed this order, and the Court of Appeal sided with the
District. The court acknowledged that ―the regulatory language explicitly states
that ‗the number of teaching stations (classrooms) shall be determined using the
classroom inventory prepared pursuant to California Code of Regulations, title 2,
section 1859.31, [fn. omitted] adjusted to exclude classrooms identified as interim
housing . . . .‘ The regulations have a clear formula that does not rely on how
many students a district decides to put in each classroom as a district-wide
average, but rather on how many students and classrooms, whether they are used
as classrooms or not, the district has in the relative comparison group schools.‖
But the court ultimately focused on this sentence in section 11969.3(b)(1):
―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.‖ (Italics
added.)
Drawing ―a distinction between facilities that are ‗provided‘ and ‗classroom
inventory,‘ ‖ the court held that the District is required to count only those
classrooms actually provided to K-12 students in deriving the ADA/classroom
ratio used to allocate classrooms to charter schools. ―If we were to adopt the
analysis proffered by CCSA,‖ the court explained, ―it may well have anomalous
results. For example, the District would have to count classrooms that have been
contracted for but not yet built and classrooms at closed school sites. ‗It is well
10

established that a statute open to more than one construction should be construed
so as to avoid anomalous or absurd results.‘ ‖ The court concluded that ―[t]he
District‘s use of norming ratios is consistent with the intent of Proposition 39‖ to
ensure that ―the charter school‘s in-district students are being accommodated in
conditions reasonably equivalent to those in which those students would be
accommodated if they were attending other public schools of the District.‖
We granted review.
III.
We note at the outset that neither party raises mootness as a bar to our
deciding this case. Although this litigation primarily concerned the allocation of
facilities to charter schools in the 2012–2013 school year, the trial court‘s
declaratory relief order prohibiting the District from using norming ratios will
govern responses to future facilities requests. In that sense, this case is not moot.
In any event, the legality of a school district‘s offer of facilities to charter schools
in a given school year is an important question that is likely to recur yet evade
review because of the relatively short duration of the academic year for which a
facilities offer is made. (See People v. Harrison (2013) 57 Cal.4th 1211, 1217–
1218; Bullis, supra, 200 Cal.App.4th at pp. 1032–1035.) Indeed, the same dispute
is likely to recur between the parties to this litigation with each new school year.
(See Bullis, at p. 1034.)
In addressing this dispute, we are mindful of the limited scope of the issue
presented. The controversy here is not over whether a particular charter school
was offered the right number of classrooms. Rather, CCSA requests declaratory
relief with respect to the meaning of the pertinent regulations. The question before
us is whether the District‘s use of norming ratios complies with Proposition 39
(§ 47614) and the implementing regulations (§ 11969.3). In passing judgment on
cases requesting declaratory relief, we decide only actual controversies and refrain
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from issuing advisory opinions. (See Pacific Legal Foundation v. California
Coastal Com. (1982) 33 Cal.3d 158, 170; Selby Realty Co. v. City of San
Buenaventura (1973) 10 Cal.3d 110, 117.)
A.
As noted, section 11969.3, subdivision (a) (hereafter section 11969.3(a))
provides that ―[t]he 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.‖ (§ 11969.3(a)(1).) The
regulation defines comparison group schools as ―the school district-operated
schools with similar grade levels that serve students living in the high school
attendance area . . . in which the largest number of students of the charter school
reside‖ (§ 11969.3(a)(2)) or, if a district‘s students do not attend high school based
on attendance areas, the ―three schools in the school district with similar grade
levels that the largest number of students of the charter school would otherwise
attend‖ (§ 11969.3(a)(3)). (See Bullis, supra, 200 Cal.App.4th at pp. 1054–1055.)
In proposing the comparison group methodology in section 11969.3, the
Department of Education in its Final Statement of Reasons said: ―Subdivision (a)
identifies a comparison group of school district facilities for use in determining
whether a facility proposed for a charter school is reasonably equivalent to the
school district facilities that charter school students would otherwise attend.
Specifically, the subdivision requires that the comparison group consists of
schools with similar grade levels that serve students living in the high school
attendance area in which the largest number of charter school students reside. The
subdivision establishes a standard that is a middle ground between a comparison
group that consists of all district-operated schools and a comparison group that
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consists of one to three schools. Using all district-operated schools as the
comparison group would present administrative and data problems for school
districts. In addition, for large school districts, using all district-operated schools
as the comparison group would result in a standard that might be significantly
different than the neighborhood schools the charter school students would
otherwise attend. (This is because in large school districts the conditions in
schools may vary widely from neighborhood to neighborhood.) Using one to
three schools would result in a group that is too small and would result in
problems agreeing on the group selected.‖ (Cal. Dept. of Ed., Final Statement of
Reasons, drafted in support of regs. promulgated under Prop. 39 (2002), pp. 5–6
(Final Statement of Reasons).)
The District in its briefing contends that using districtwide student/teacher
norming ratios instead of counting classrooms in comparison group schools does
not violate section 11969.3(a): ―[T]he District‘s norming ratio is a control that
ensures the number of students to classrooms provided each District school is
consistent by grade level. Therefore, the charter school‘s comparison group
schools will have a reasonably equivalent ratio of students-to-classrooms to the
norming ratios at which the charter school was allocated District facilities.‖ At
oral argument, the District maintained that the regulation does not require it to use
the comparison group method to derive the ADA/classroom ratio; instead, the
regulation only requires the District to be able to demonstrate that the facilities it
offers to charter schools are equivalent to what it would have offered if it had used
the comparison group method. In support of this position, the District quotes
section 11969.3(a), which speaks of the comparison group as 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
13

providing facilities.‖ (§ 11969.3(a)(1), italics added.) The District reads this
language to mean that the comparison group can be a retrospective ―standard for
determining‖ whether facilities provided to charter schools meet the reasonable
equivalence standard. Further, the District says it has met the standard here, citing
a document produced during this litigation that shows 12 facilities offers in which
the number of classrooms provided to charter school students is reasonably
equivalent to the number provided to noncharter public school students at
comparison group schools.
But nothing in the record suggests that the 12 facilities offers are
representative of the scores of offers made by the District or that the District
identified those 12 offers using a valid sampling methodology. More
fundamentally, the District is mistaken about the role of comparison group schools
in the regulatory scheme. Section 11969.9, which sets forth the procedures that
school districts must follow in making facilities offers, requires that ―the district
shall . . . provide the charter school a list and description of the comparison group
schools used in developing its preliminary proposal‖ in response to a charter
school‘s facilities request. (§ 11969.9, subd. (f).) This provision makes clear that
the comparison group method cannot be used merely as a retrospective standard
for determining reasonable equivalence; it must be used by school districts in
developing their facilities offers to charter schools. The regulations prescribe a
specific, transparent method for deriving the ADA/classroom ratio to be applied in
allocating classrooms to charter schools, thereby allowing charter schools and the
public to readily verify whether a district has complied with the regulation.
The District‘s alternative would require a charter school either to simply
accept the District‘s assurance that its norming ratios produce reasonable
equivalence in facilities between the charter school and its comparison group
schools, or to compel the District through litigation to demonstrate reasonable
14

equivalence. We doubt this is what the Board had in mind when it adopted section
11969.3(a). Indeed, the Department of Education and the Board explicitly rejected
a districtwide approach akin to the District‘s norming ratios in favor of the
comparison group method. As noted, the department reasoned that in ―large
school districts, using all district-operated schools as the comparison group would
result in a standard that might be significantly different than the neighborhood
schools the charter school students would otherwise attend‖ ―because in large
school districts the conditions in schools may vary widely from neighborhood to
neighborhood.‖ (Final Statement of Reasons, supra, at pp. 5–6.) The regulation
thus requires a more localized approach.
The District‘s norming ratios may be more administratively efficient and
may reflect a desirable goal of making student/teacher ratios uniform throughout
the District. And it may be that a school district and a charter school can agree on
a method of allocation that is more efficient than one involving the comparison
group method. (See § 11969.1, subd. (b) [―If a charter school and a school district
mutually agree to an alternative to specific compliance with any of the provisions
of this article, nothing in this article shall prohibit implementation of that
alternative . . . .‖].) But the District may not unilaterally impose on charter schools
a method of determining ADA/classroom ratios that is at odds with the governing
regulation. To the extent the District believes the comparison group method is too
burdensome, it should address that concern to the Board or to the Legislature.
We hold that the District must comply with section 11969.3(a) by using
comparison group schools in calculating the number of classrooms it will make
available to charter schools in response to a facilities request.
B.
We now turn to the parties‘ dispute over which classrooms must be counted
in determining the ADA/classroom ratio pursuant to section 11969.3(b)(1). CCSA
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highlights section 11969.3(b)(1)‘s directive that ―[t]he number of teaching stations
(classrooms) shall be determined using the classroom inventory prepared pursuant
to California Code of Regulations, title 2, section 1859.31, adjusted to exclude
classrooms identified as interim housing.‖ CCSA argues that this language
requires school districts to count classrooms strictly according to the section
1859.31 inventory, which accounts for all classrooms built or contracted for, no
matter what their use. At the same time, CCSA appears to acknowledge that the
breadth of the section 1859.31 inventory will improperly inflate the classroom
count from the standpoint of ensuring reasonable equivalence in the allocation of
classrooms to charter and noncharter public schools. To address this overbreadth,
CCSA argues that the section 1859.31 inventory may be adjusted in a number of
ways. We find CCSA‘s approach unpersuasive because none of its proposed
adjustments is anchored in a plausible reading of section 11969.3(b)(1).
When interpreting a statute, ― ‗[w]e begin with the text of the statute as the
best indicator of legislative intent‘ [citation], but we may reject a literal
construction that is contrary to the legislative intent apparent in the statute or that
would lead to absurd results‘ [citation].‖ (Simpson Strong-Tie Company, Inc. v.
Gore (2010) 49 Cal.4th 12, 27.) Likewise, when interpreting a regulation, we
begin with its text, but we may reject a literal construction contrary to the
legislative intent apparent in the statute that the regulation is implementing. The
fundamental mandate of Proposition 39 is that school districts must make
available to charter schools operating in the 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.‖
(§ 47614, subd. (b), italics added.) The Board, in issuing implementing
16

regulations, had considerable discretion to prescribe how school districts are to
satisfy this requirement.
As noted, the section 1859.31 inventory was originally intended to govern
the allocation of funds for construction of new facilities, not the allocation of
reasonably equivalent facilities to charter schools and other public schools.
Reading section 11969.3(b)(1) to require a classroom count that is strictly based
on the section 1859.31 inventory would require the District to count classrooms
already provided to charter schools. While conceding that including such
classrooms would improperly inflate the count, CCSA says the District could
exclude such classrooms from the ADA/classroom ratio or, in the alternative,
count the classrooms and add the ADA of any charter schools to the ratio‘s
numerator. But this proposed adjustment appears entirely ad hoc; it is not rooted
in any reasonable construction of section 11969.3(b)(1). It is, in CCSA‘s words,
―a practical solution to the extent an impractical situation arises after the
Implementing Regulations have been honestly interpreted.‖
CCSA also contends that unbuilt classrooms should be excluded, even
though section 1859.31, subdivision (a) provides that a classroom inventory
―shall‖ include classrooms ―for which a contract was signed for the construction or
acquisition of facilities or for which construction work has commenced‖ at the
time a school district applies for funds to build new classrooms. In support of its
position, CCSA cites the Board‘s Final Statement of Reasons, which says that ―to
account for the possible addition of schools and classrooms to the school district‘s
inventory, the comparisons are calculated based on the projected number of
teaching stations and projected ADA.‖ (Final Statement of Reasons, supra, at
p. 6, italics added.)
But section 11969.3(b)(1) makes clear that the ADA/classroom ratio is to
be derived from ―ADA projected for the fiscal year‖ and classrooms ―determined
17

using the classroom inventory prepared pursuant to . . . . section 1859.31, adjusted
to exclude classrooms identified as interim housing.‖ Section 11969.3(b)(1)
makes no mention of the projected number of teaching stations. The section
1859.31 inventory requires counting unbuilt classrooms, whether projected to be
completed in the relevant school year or not, even though counting such
nonexistent classrooms does not further Proposition 39‘s goal of reasonable
equivalence in facilities between charter and noncharter public schools. CCSA
proposes no plausible interpretation of section 11969.3(b)(1) that permits
exclusion of classrooms included in the section 1859.31 inventory.
CCSA would also exclude certain classrooms used for preschool or adult
education, relying on California Code of Regulations, title 2, section 1859.32
(hereafter section 1859.32). That regulation provides that after the gross section
1859.31 classroom inventory has been prepared, it ―will be reduced‖ by excluding
certain categories of classrooms, including any classroom to be ―used exclusively
for regional occupational centers, regional occupational programs, child care,
preschool and/or Adult Education Programs, and [that] was built or acquired with
funds specifically available for those purposes.‖ (§ 1859.32, subd. (f).) But
section 11969.3(b)(1) prescribes use of ―the classroom inventory prepared
pursuant to . . . section 1859.31,‖ not use of the section 1859.31 inventory subject
to the adjustments set forth in section 1859.32. Further, even if it were reasonable
to construe section 11969.3(b)(1)‘s reference to section 1859.31 as incorporating
the adjustments in section 1859.32, the implication of CCSA‘s argument is that
classrooms used exclusively for preschool or adult education purposes should be
excluded from the ADA/classroom ratio only if those classrooms were ―built or
acquired with funds specifically available for‖ preschool or adult education
purposes. (§ 1859.32, subd. (f).) This limitation, which has to do with a district‘s
eligibility for school construction funds, seems arbitrary from the standpoint of
18

promoting reasonable equivalence in facilities for charter and noncharter public
schools.
C.
It is thus clear that the section 1859.31 inventory does not by itself provide
a classroom count that furthers Proposition 39‘s goal of ensuring ―reasonably
equivalent‖ facilities for charter and noncharter public schools. (§ 47614,
subd. (b).) In approaching this issue, the District contends that the classroom
inventory requirement of section 11969.3(b)(1) must be read in light of the
regulation‘s first sentence, which says: ―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.‖ (Ibid., italics added.) According to the District, only
classrooms in the inventory that are ―provided to‖ noncharter public school K-12
students in the District must be counted. On this view, unbuilt classrooms,
classrooms already used by charter schools, and classrooms dedicated to
preschool, adult education, or other uses besides K-12 education are not ―provided
to‖ such K-12 students and thus need not be counted in determining the
ADA/classroom ratio under section 11969.3(b)(1).
We agree with this reading of section 11969.3(b)(1). Although section
11969.3(b)(1) says ―[t]he number of teaching stations (classrooms) shall be
determined using the classroom inventory prepared pursuant to . . . section
1859.31,‖ the sentence of 11969.3(b)(1) that specifically addresses the allocation
of facilities to charter schools refers to ―those [classrooms] provided to students in
the school district attending comparison group schools.‖ (Italics added.) This
language is naturally read to mean that the classrooms to be counted in deriving
the ADA/classroom ratio for allocating facilities to charter schools comprise a
subset of the classrooms counted in the section 1859.31 inventory — namely,
19

―those provided to‖ noncharter K-12 public school students in the district.
(§ 11969.3(b)(1).) As noted, if the classroom count were based solely on the
section 1859.31 inventory, it would include various classrooms that should be
excluded for purposes of ensuring reasonable equivalence in charter and
noncharter public school facilities. Counting only ―those [classrooms] provided
to‖ noncharter K-12 public school students in the district avoids this problem and,
unlike the ad hoc adjustments proposed by CCSA, hews closely to the text of
section 11969.3(b)(1).
Classrooms used for preschool or adult education, or by other charter
schools are not ―provided to‖ a district‘s noncharter K-12 public school students.
Proposition 39 sought to level the playing field for charter and noncharter public
schools with respect to facilities for K-12 education. There is no indication that
Proposition 39 was intended to affect or account for the practice of school districts
allowing their facilities to be used for educational or community programs other
than their own K-12 educational program. Indeed, the 2008 settlement agreement
between CCSA and the District acknowledges that preschool and adult education
programs ―may remain in the space they currently use.‖
However, accepting the District‘s position that the term ―provided to‖
limits the scope of section 11969.3(b)(1) does not completely resolve the
controversy before us. CCSA argues in its briefing that even if reasonable
equivalence is keyed to classrooms ―provided to‖ noncharter K-12 public school
students, the District‘s norming ratios still produce an undercount because they
―are based on the number of teachers LAUSD decides to hire for a school year, not
on a calculation of the classrooms LAUSD actually has available for use. LAUSD
ignores the fact that a classroom can be ‗provided‘ to students even if it does not
have an assigned teacher (e.g., by using an unstaffed classroom as a study room).‖
We agree. The fact that a classroom is not staffed by a teacher does not, by itself,
20

mean that it should not be counted as a classroom in determining the
ADA/classroom ratio. A classroom that is used for K-12 student activities may
qualify as a classroom ―provided to‖ K-12 students, even if it is not staffed by a
teacher specifically assigned to that classroom. Because the District‘s norming
ratios are essentially student/teacher ratios, they may undercount to some degree
classrooms provided to K-12 students and therefore do not comply with section
11969.3(b)(1)‘s method of counting classrooms.
This understanding of the term ―provided to‖ is consistent with the
Legislature‘s conception of charter schools as public schools that ―operate
independently from the existing school district structure.‖ (§ 47601.) The
Legislature authorized the creation of charter schools in order to promote choice,
innovation, and competition on the premise that charter schools, while remaining
accountable for student outcomes, would be largely free to adopt different
educational approaches and make different decisions than those made by the
school districts in which they operate. Counting only those classrooms staffed by
an assigned teacher would effectively impute to charter schools the same staffing
decisions made by the District. But there is no reason to think a charter school
would necessarily use classrooms in the same way that the District does.
In sum, we hold that counting classrooms ―provided to‖ district students for
purposes of section 11969.3(b)(1) is not the same as counting only those rooms a
district elects to staff with a teacher. Nor is it the same as counting all rooms
listed in the section 1859.31 inventory, although the inventory provides a starting
point. Resolving what classrooms are ―provided to‖ district students for purposes
of calculating the ADA/classroom ratio for a particular school may depend on site-
specific factors. Because the parties have not asked us to resolve any concrete
dispute over the allocation of particular classrooms to a particular charter school,
we decline to opine with any greater specificity here. We do not address whether,
21

for example, a room formerly used for K-12 classroom instruction but now used to
store K-12 school supplies is a teaching station ―provided to‖ students under
section 11969.3(b)(1), a ―specialized classroom space‖ under section 11969.3,
subdivision (b)(2), or a ―non-teaching station space‖ under section 11969.3,
subdivision (b)(3), or whether it fits multiple categories. The proper classification
of a disputed classroom or facility will ordinarily require a developed factual
record that this declaratory relief action does not present.
CONCLUSION
In responding to a charter school‘s request for classroom space, a school
district must follow a three-step process. First, the district must identify
comparison group schools as section 11969.3(a) prescribes. Second, the district
must count the number of classrooms in the comparison group schools using the
section 1859.31 inventory and then adjust the number to reflect those classrooms
―provided to‖ students in the comparison group schools. Third, the district must
use the resulting number as the denominator in the ADA/classroom ratio for
allocating classrooms to charter schools based on their projected ADA. Here, the
District‘s use of norming ratios departs from the required procedure by failing to
use comparison group schools and by equating classrooms ―provided to‖ students
with classrooms staffed by teachers. In responding to future facilities requests, the
District must count classrooms in a manner that conforms to the regulation.
22

For the reasons above, we reverse the judgment of the Court of Appeal.
LIU, J.

WE CONCUR:


CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CORRIGAN, J.
CUÉLLAR, J.
KRUGER, J.
23


See last page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion California Charter Schools Association v. Los Angeles Unified School District
__________________________________________________________________________________

Unpublished Opinion


Original Appeal
Original Proceeding
Review Granted XXX 212 Cal.App.4th 689
Rehearing Granted

__________________________________________________________________________________

Opinion No.

 S208611
Date Filed: April 9, 2015
__________________________________________________________________________________

Court:

 Superior
County: Los Angeles
Judge: Terry A. Green

__________________________________________________________________________________

Counsel:

 David R. Holmquist, Mark S. Fall, Nathan A. Reierson; Orbach, Huff & Suarez, David M. Huff, Steven
Graff Levine, Marley S. Fox and Joanna Braynin for Defendants and Appellants.

Burke, Williams & Sorenson and John R. Yeh for California School Boards Association Education Legal
Alliance and California State PTA as Amici Curiae on behalf of Defendants and Appellants.

Drociak, Yeager & Associates and Kenneth C. Yeager for Los Angeles NAACP as Amicus Curiae on
behalf of Defendants and Appellants.

Andra Donovan for San Diego Unified School District as Amicus Curiae on behalf of Defendants and
Appellants.

Jacqueline P. Minor and Michael L. Smith for Oakland Unified School District as Amicus Curiae on behalf
of Defendants and Appellants.

Ricardo J. Soto, Julie Ashby Umansky, Phillipa L. Altmann; Latham & Watkins, James L. Arnone,
Winston P. Stromberg, Vanessa C. Wu and Michele L. Leonelli for Plaintiff and Respondent.

Laws Office of Michael F. Keeley and Michael Keeley for Excellent Education Development as Amicus
Curiae on behalf of Plaintiff and Respondent.

Ogletree, Deakins, Nash, Smoak & Stewart, Mark G. Kisicki and Erin L. Brinkman for Rocketship
Education as Amicus Curiae on behalf of Plaintiff and Respondent.

Procopio, Cory, Hargreaves & Savitch, John C. Lemmo and Gregory V. Moser for Bullis Charter School as
Amicus Curiae on behalf of Plaintiff and Respondent.

Meriem L. Hubbard and Joshua P. Thompson for Pacific Legal Foundation as Amicus Curiae on behalf of
Plaintiff and Respondent.

1

Page 2 – S208611 – counsel continued

Counsel:

Procopio, Cory, Hargreaves & Savitch, Gregory V. Moser and Adriana R. Sanchez for National Alliance
for Public Charter Schools as Amicus Curiae on behalf of Plaintiff and Respondent.

Law Offices of Young, Minney, and Corr, Paul C. Minney and Kathleen M. Ebert for Reed Hastings as
Amicus Curiae on behalf of Plaintiff and Respondent.

Irell & Manella, David A. Schwars and Zachary T. Elsea for Richard J. Riordan as Amicus Curiae on
behalf of Plaintiff and Respondent.


2


Counsel who argued in Supreme Court (not intended for publication with opinion):

 David M. Huff
Orbach, Huff & Suarez
1901 Avenue of the Stars, Suite 575
Los Angeles, CA 90067
(310) 788-9200

James L. Arnone
Latham & Watkins
355 South Grand Avenue
Los Angeles, CA 90071-1560
(213) 485-1234
3

Opinion Information
Date:Docket Number:
Thu, 04/09/2015S208611