• Open Enrollment Act Update
  • November 18, 2010 | Authors: Diana D. Halpenny; Christian M. Keiner
  • Law Firm: Kronick Moskovitz Tiedemann & Girard A Law Corporation - Sacramento Office
  • In July we issued a Legal Alert on the Open Enrollment Act legislation and emergency regulations. This update follows the bumpy path toward implementation of the Act from adoption of emergency regulations and a preliminary list of 1000 “low achieving” schools impacting the current 2010-11 school year, to State Board of Education adoption of permanent regulations in September, followed by an extended public comment period and a new list of “low achieving” schools for the 2011-12 school year posted by the Department of Education (CDE) on October 8, 2010.

    The permanent regulations are now before the Office of Administrative Law awaiting final approval sometime on or before December 10, 2010. In the meantime, the Department of Education advised school districts having schools on the new list to notify parents/guardians of their right to transfer under the Act. Since the permanent regulations are not yet final, the timeline for notifying parents/guardians about their transfer rights has been put into question.

    The List
    The permanent regulations retain the methodology for identifying the 1000 “low achieving” schools in the Romero Bill legislation and emergency regulations which exclude court, community, community day, charter schools, schools that are closed or have fewer than 100 valid test scores and any more than 10 percent of any one district’s schools.

    The permanent regulations now also exclude schools which are non-resident schools providing special education or alternative opportunity programs through county offices of education or state schools for the deaf. The October 8 list still includes nineteen of these schools, but according to CDE staff, the list will not be amended to add nineteen more schools.

    The list also still includes a number of schools with API scores 800 or higher. This is a function of the 10% of schools cap for any one district. However CDE has recognized this anomaly by providing advice for districts seeking a waiver from the list. While CDE was not explicit about waivers on other bases, the waiver process could also be used to waive schools over the 10% cap for a district.
    See http://www.cde.ca.gov/re/lr/wr/hottopics.asp#Openenrollment

    Parent Notice
    Emergency regulations required districts to notify parents/guardians of their transfer rights by the first day of instruction or no later than September 15. Recognizing the timing of CDE’s annual posting of the List may vary, the permanent regulations now require parent notice no later than 14 calendar days after the List is posted on the CDE website.

    CDE posted the 2011-12 List on their website on October 8, 2010 which would have required notices to be sent no later than October 22. If your district has not already sent them, we think it would be reasonable to send the notices as soon as possible, but no later than 14 calendar days after the Office of Administrative Law approves the final regulations. Districts should be mindful of the January 1 deadline in the statute for submitting applications.

    Application Deadlines
    The statutory deadline for submitting an Open Enrollment Act application is January 1 and districts of enrollment must notify parents/guardians of acceptance or denial within 60 days of receipt of the application. Districts must also address resident student placement before transfer students. These timelines may conflict with current district timelines for registration in intra-district open enrollment. However, the Act provides that a district Governing Board may waive the January 1 deadline for receipt of all transfer applications and create an application window for submission of transfer applications, which coincides with current district timelines.

    We recommend adopting a waiver for these districts running up against the January 1 deadline because notices have not yet been sent, or districts with inconsistent intra-district open enrollment deadlines. The waiver can be incorporated in Board Policies adopted to implement the Act.

    Board Policies
    The Act authorizes districts of enrollment to adopt specific written standards for rejection of a transfer application which may include a consideration of the capacity of a program, class, grade level, or school building or any adverse financial impact that may result from the transfer. We have recommended these standards be incorporated in a Board policy which specifically defines a district’s capacity and adverse fiscal impacts. The standards adopted by each district should be supported by objective data.

    This is important because the Act specifies that a discretionary decision by the Board, i.e. a denial of an application, may only be overturned if a court finds that the Board acted in an arbitrary and capricious manner. Objective, district specific capacity and fiscal impact data will protect the district in a lawsuit over its decision to deny an application.

    We have advised that policies implementing the Act can be either a separate Open Enrollment Act policy or amendments incorporating the Act into existing policies on intra-district open enrollment and inter-district transfer policies. California School Boards Association has published a sample separate policy.

    What this Means for You
    1. Consider submitting a waiver request to the SBE if eligible.

    2. Board Policies implementing the Act should be revised and/or adopted now!

    3. Consider district specific enrollment windows and deadlines and waive the January 1 application deadline in the Board adopted policy, if necessary. Coordinate all enrollment options windows, if possible.

    4. Examine specific district capacities and fiscal impacts to include in the Board Policy for denial of an application.

    5. Send parent/guardian notices for schools on the list now or as soon as possible after the permanent regulations are approved!