The surprising thing about the vote to deny the SOUL charter school petition is that there was definitely the sense that San Dieguito school board members were inclined to support it.
When the founders of the school spoke to the board before the Oct. 13 vote and clearly said they would not accept conditional approval, trustees seemed somewhat perplexed.
Because the district offered only two choices to board members – conditional approval or denial – trustees felt they were left with no choice but to deny the petition.
And that, even more bewilderingly, seemed to be fine with the founders.
SOUL co-founders Marisa Bruyneel and Michael Grimes submitted a 200-page petition to the San Dieguito Union High School District for the district’s review on Sept. 1.
The extensive document covered the school’s educational vision and mission, details on curriculum and instruction, teaching methodologies, funding and budget projections, goals for student outcomes, assessment, governance, human resources and other operational elements.
The district, led by Interim Superintendent Eric Dill, performed an exhaustive review of the proposal. Each of the four associate superintendents took a portion of the proposal and examined the sections related to human resources, business, administration and curriculum.
Based on their findings, the district presented board members with the two options, denial or conditional approval, and offered 10 pages of support material for each.
Full approval was the third option but that was not recommended by the district.
Dill’s proposed resolution to support conditional approval stated in part, “although district staff has identified concerns related to the SOUL Charter School’s proposed program and operations, the board supports educational innovation and reform, including the formation and successful administration of charter schools, and desires to give the petitioners an opportunity to resolve the concerns identified herein.”
Concerns mostly centered around uncertainty that the educational program would be successfully implemented.
Yet the wording of the conditional approval resolution was gracious, positive and encouraging.
So what went wrong?
Miles Durfee suggested that it could have been a simple matter of confusion over terms.
“When you say ‘conditional approval’ and ‘approval with conditions,’ people think they’re the same thing,” Durfee said. “There’s a distinction though. One means you’re approved and one means you’re not.”
Durfee, who is the Southern California Managing Regional Director of the California Charter Schools Association, said the terms are used interchangeably but are not interchangeable.
“‘Conditional approval’ means you’re not approved and it means the school can’t move forward in any fashion as if it were approved,” Durfee said.
That means the school can’t sign lease agreements, get established with the California Department of Education to initiate funding, or complete other necessary paperwork that’s required to create a school.
Essentially, Durfee is saying that there is no such option as conditional approval: School boards must either approve or deny a charter school petition.
“Under the Charter Schools Act and California Supreme Court case law, the proposed ‘conditional approval’ of the charter is not a legal course of action,” states a letter to the district from Procopio, a San Diego law firm, on behalf of the SOUL charter school.
Procopio’s letter continues: “At the local authorizer level under Education Code section 47605(b), charter petitions are either ‘granted’ or ‘denied.’”
Dill, however, said conditional approval has been used by other school districts before, as has even the Calif. Dept. of Education, and it is a viable option.
“We didn’t make it up,” he said. “It’s not something we created.”
The district’s legal counsel for this matter was Fagen Friedman & Fulfrost, based in Carlsbad. Dill said he relied on their advice and knowledge of charter school law in evaluating the SOUL petition and structuring the district’s options.
Authorizing a charter school means the district has specific oversight responsibilities. Since this is the first time San Dieguito has been presented with a charter school petition, Dill said attorneys were consulted to help him, his staff and board members understand legal ramifications and requirements.
“Authorization without conditions was not an option for us,” Dill concluded.
“Approval with conditions,” however, is different, and means the school can move forward with the process, Durfee said. A Memorandum of Understanding is then worked out afterwards.
And there’s the problem from the district’s standpoint.
An MOU is negotiated by both parties, and Dill said he was not comfortable with that.
“To say ‘let’s iron out some details later’ doesn’t work,” he said, adding that the petition raised major questions and an MOU addresses minor issues.
“I think this [conditional approval] was a much more humane way to go,” Dill said. “It would have allowed us to do the work upfront.”
Durfee had a different view.
“An alternative look would be that it should be a fair discussion about how are we doing as a partnership,” he said, explaining that the two parties would be negotiating on equal terms in crafting an MOU.
“What I hear him saying is, ‘we want that ability to get everything we want,’” Durfee said. “That’s not what the law implies or intends. It’s not a process for the district to further control once the school is approved.”
Durfee said he did not believe the district was being vindictive and said he understands that they want to run the school as if it were their school. But charter schools are run independently and not like a district’s regular public school.
Praise all around
A second objection, raised in both the Procopio letter and a letter from Durfee to the district, states that the district’s resolution for conditional approval grants San Dieguito’s superintendent the final authority to approve or deny the charter petition – and to do so as late as April 2017.
“Our attorneys [at the California Charter Schools Association] feel that delegation of authority is not legal,” Durfee said.
But Dill, relying on legal advice, said the CCSA is citing case law from the 1970s that has since been revised.
“Now we have ‘permissive authority’ which means the board and school district can do anything unless specifically prohibited in California’s Education Code,” Dill said, adding that this position has been “legally verified.”
In what I assumed would be a simple request, I asked to see the legal language from San Dieguito’s attorneys supporting this.
But Dill surprised me by refusing. “I cannot share with you any privileged attorney-client communication,” he said in an email.
I’ve often received correspondence from school district attorneys on non-controversial items like this, so I’m in a bit of an argument with Dill over his decision to withhold this legal opinion.
All he would say is, “We engaged legal counsel who are quite familiar with charter school law and I was comfortable with their advice.”
Procopio calls granting the superintendent final authority to approve or deny “an improper delegation of the Board of Trustees’ duties,” stating that, by law, only “the governing board of the school district shall either grant or deny the charter.”
This statement would seem to be saying two things: one, that the superintendent does not have the authority to grant or deny the charter; and two, that the only two options are to grant or deny.
Without seeing the language from the school district’s legal advisers, it’s difficult to balance this position.
The letters from Procopio and Durfee were not received until the morning of the Oct. 13 board meeting when trustees were to vote on the petition. So why were the letters sent so late when the district had been talking publicly about conditional approval (not “approval with conditions”) for over a month?
Dill agreed that the board, in discussing the petition publicly, had been speaking about conditional approval as an option for some time. But Durfee disagreed.
“The idea of conditional approval was not something I ever heard,” Durfee said. “I heard approval with conditions, not conditional approval.”
Dill said it was difficult to speculate on what might have happened had the letters been received sooner and been more timely.
All parties agreed that San Dieguito has exceptional schools, and there was praise all around for the work being done in the district.
“We acknowledge your schools have already forged a path of excellence,” SOUL co-founder Bruyneel said to the board at the Oct. 13 meeting.
Grimes said SOUL would be giving the district an opportunity to add another exceptional school to its options.
But both Bruyneel and Grimes said students deserve choices and not every school meets every student’s individual needs.
They both said they were unable to accept conditional approval.
“We have met all legal requirements,” Grimes said. “We know that SOUL is going to succeed.”
Dill said the district did a thorough analysis (not easy, given all the regular work they do on a daily basis) and there was enough there to warrant a denial.
Smiles and handshakes
Although the decision was made to deny the charter’s petition, there was no anger or incivility. Board members and district staff all agreed the co-founders have passion, enthusiasm and best intentions. And the SOUL co-founders graciously thanked the district for its time and its work to review the proposal.
Dill said all discussions with the SOUL organizers and supporters have been cordial, and no one questions their passion and determination to start the school.
Regarding the different interpretations of the law, Dill said both sides checked with attorneys. “They can have their opinion and we can have ours,” he said.
But through it all there were smiles and handshakes and appreciation for each other.
Even the teachers union president, Bob Croft, who has been outspoken recently on election issues, said in an informal interview last month that “there’s always an initial concern” with charter schools, but added, “I trust in our board to make the right decision.”
Despite the denial, SOUL, which stands for the School of Universal Learning, is not done.
Grimes and Bruyneel intend to submit their petition to the San Diego County Office of Education for authorization, as the next step up the line. Grimes said he’s hoping to present to SDCOE on Nov. 2.
Should SDCOE approve the charter, Grimes said the school would still be located within San Dieguito’s boundaries.
“It’s always been our goal to open in Encinitas, that’s not going to change,” Grimes said.
With SOUL submitting its petition to the county next, organizers and supporters remain upbeat.
“We’re confident that the petitioners have met the law requirements and they can run a successful program,” Durfee said. “We’re confident they’ll get approved.”
- Sr. Education Writer Marsha Sutton can be reached at firstname.lastname@example.org.