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California School Fiscal Services

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Navigating the legal threats posed by LCAPs

Posted on March 4, 2016 at 1:25 PM
Happy Friday! 

I think we all knew that it was only a matter of time before the lawyers entered the LCAP process.  This is an important article to read so you can see the level of scrutiny that particular watch dog groups place on this document.  Supplemental and Concentration funds are really no different than all of those restricted resources that were eliminated when Revenue Limit funding was replaced by LCFF.  Despite the "0000" resource code, the accountability for S/C funds is formidable!  This just underscores the high need for the business and instructional sides to work closely together.  That's the whole idea here! 

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by Tom Chorneau

(Calif.) Two prominent attorneys who tend to face-off from opposite sides of most public school issues have found common ground on one thing – that districts face significant legal threat over the development and execution of local performance plans.

 

Already Los Angeles Unified was sued over its method for calculating the base cost of services to disadvantaged students, and with administrators getting started this spring on the third update of their Local Control Accountability Plans, even more scrutiny from outside groups is expected.

 

“This coming year is going to be critical,” said Sloan Simmons, partner at Lozano Smith. “Districts may for the first time start to have data upon which they can measure success of their LCAP initiatives and whether they are meeting their programmatic and spending goals. For districts that perhaps don’t meet intended goals, they can determine what needs to be adjusted in their LCAPs so that funds are benefitting the target groups as intended.”

 

Legislative leaders and Gov. Jerry Brown ushered in the Local Control Funding Formula almost three years ago giving schools billions in additional dollars to expand educational services to low-income students, English learners and foster youth. Although there’s a general understanding that local educational agencies are still adjusting and transitioning to the new rules, there’s also some pressure from parents, advocacy groups and lawmakers to show results.

 

Last week at a hearing of the Senate Education Committee, members of California’s State Board of Education and Department of Education were asked pointedly when taxpayers can expect to see a return on the LCFF “concentration” and “supplemental” grants invested in schools.

 

The answer, said board president Mike Kirst, is likely two years off – maybe longer as the state continues to struggle with reinventing how it will measure school and student performance under the newly-adopted Common Core State Standards and added complications from adoption of the nation’s new education law, the Every Child Succeeds Act.

 

It is unlikely that public interest law firms and advocacy groups will wait that long before raising questions about whether districts are meeting their LCAP goals.

 

“We continue to see districts that fail to even identify what their school-wide and district-wide actions and services are that they are spending supplemental and concentration grants on,” said John Affeldt, managing attorney at Public Advocates.

 

“You’ve got to separately identify each distinct action or service supported by supplemental and concentration spending,” he explained. “Instead we see a lot of summary explanations that simply say things like ‘we invested in programs to support our English learners’ – that’s not good enough.”

 

At issue in the L.A. Unified case is whether the district properly included special education spending when they calculated the baseline of services at the outset of the new funding system. The question is critical because that base dictates how much the district must spend on the targeted populations for years to come.

 

Public Advocates along with the American Civil Liberties Union of Southern California argue that LAUSD incorrectly lowered the base by counting services required by the federal Individuals with Disabilities Education Act as part of their LCFF effort. School officials have said they calculated the base correctly because a large number of their special education students also fit into one of the three student pools targeted by the LCFF.

 

The suit has been set aside by the court while the California Department of Education pursues an administrative remedy.

 

Both Sloan and Affeldt acknowledge that the L.A. case is unique, although the question of how districts set their base spending and also how they arrive at the required “unduplicated” count of targeted students is central to any legal risks.

 

In a client brief this month, Sloan and a colleague suggested that LEAs utilize a complex but thorough seven-step process for making the unduplicated count.

 

Once that’s accomplished, however, the legal thicket is really only beginning as the focus moves to perhaps the more important question of how the LCFF grant money is being used and whether services have been enhanced.

 

Affeldt noted that the education code calls for the concentration and supplemental grants to provide “increased or improved” services to the targeted students.

 

Affeldt noted that the education code calls for the concentration and supplemental grants to provide “increased or improved” services to the targeted students.

 

“That means a growth in the quantity or the quality of services,” he said. “So if you are investing, say in teacher salaries – that’s not automatically an increase or an improvement in services. Same thing if you are using the grants to pay for higher health care costs. What you are typically doing there is just spending more dollars on the same services.”

 

Sloan said that LCFF regulations give some guidance on what is a ‘permissible service,’ which also may be applied on a districtwide basis. That list includes – but is not limited to – services associated with the “delivery of instruction, administration, facilities, pupil support, technology and other general infrastructure necessary to operate educational instruction and related services.”

 

While that definition seems fairly broad, both Sloan and Affeldt say there’s a qualifying test put into the rules – whether the services are being “principally directed” to any or all of the three targeted student groups.

 

Affeldt noted that the coalition group that includes his law firm, the ACLU and a number of advocacy groups representing disadvantaged youth pressed the state board to include the “principally directed” language in the regulations.

 

He said that the “principally directed” term only comes into play for spending that is district-wide or school-wide in nature and not specifically targeted – such as a program to improve services to English learners only. “Principally directed,” he explained, means that the spending is being done primarily to help the targeted students.

 

“Are unduplicated students a fore-thought in the decision to spend the funds that way – not an after-thought, or even an equal thought,” he said. “You have to be able to say that the reason we are picking this strategy is because we think this is the next best use of dollars to help our unduplicated students.”

 

Sloan said the question of what is and what is not a service that is “principally directed” will emerge as a key legal question in the years to come. He points out that the term is not defined in the LCFF regulations and that school groups opposed including the term in the regulations because, among other things, it would lead to unnecessary confusion, disagreement and possibly litigation.

 

“This said, there are indications of the meaning of principally directed both in terms of common and legal usage of the word “principally” and stated intent of the drafters of the LCFF regulations,” he explained. “The common sense interpretation that principally directed means ‘chiefly or primarily’ directed.”

 

Another component of this discussion is the set of performance rubrics that the state board has yet to formalize. Called for in state law, the rubrics are primarily intended as a tool for state and county offices of education to evaluate whether districts are meeting the educational goals spelled out in their LCAPs.

 

The work on the rubrics is not expected to be finished until the fall; thus it might be argued that any challenge to districts before then on LCAP fidelity is premature. That is, the rubrics might be needed to fully determine if a program or service has been successfully “principally directed.”

 

But according to Affeldt, community groups and parents don’t need the rubrics to begin scrutinizing district LCAPs.

 

"Districts should use the rubrics to evaluate whether their LCAP investments are achieving desired outcomes," he said. "That should be done with LCAP Annual Updates every year too. The rubrics should reveal performance and growth outcomes under all the state priorities and subgroup gaps in a way, hopefully, that explains what’s working and what’s not and why. That information should then feed back into revised LCAP plans going forward.”

 

 


Categories: LCAP

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