Trial Court: Santa Clara County Superior Court No. CV144569 Trial Judge: Hon. James P. Kleinberg
The opinion of the court was delivered by: Duffy, J.
CERTIFIED FOR PUBLICATION
(Santa Clara County Super.Ct.No. CV144569)
The Legislature in 1992 enacted the Charter Schools Act (Ed. Code, § 47600 et seq.; the Act).*fn1 Eight years later, the California electorate amended the Act by adopting Proposition 39. Under that amendment, school districts must provide to charter schools established within their jurisdiction school facilities with "conditions reasonably equivalent to those in which the [charter school] students would be accommodated if they were attending other public schools of the district." (§ 47614, subd. (b).) This case explores the practical meaning of this reasonable equivalence mandate.
Bullis Charter School filed a petition for writ of mandamus and a complaint alleging that the Los Altos School District (District) had violated the Act, as amended, by failing to offer and provide Bullis with facilities for the 2009-2010 school year that were reasonably equivalent to other public schools in the District. The District prevailed and Bullis challenges the court's ruling here. Bullis argues that the District's offer of facilities was deficient, inter alia, because the District significantly understated the non-classroom space available to District-run schools in the comparison group; overstated the size of the Bullis facility; did not consider the size of the site offered to Bullis as compared with the sizes of school sites in the comparison group; understated the size of some of the comparison schools' buildings; and failed to consider or provide for certain facilities, such as childcare facilities, which existed at each of the comparison group schools.
We conclude that the District offer of facilities for the 2009-2010 school year did not comply with Proposition 39 or its implementing regulations. Proposition 39 mandates that facilities be "shared fairly" among all public school students, including charter school students (§ 47614, subd. (a)). The regulations specify that a school district--in responding to a Proposition 39 facilities request by offering "reasonably equivalent" facilities to the charter school--must (1) select appropriate district-run schools to use as a comparison group with the charter school, (2) consider three categories of space (teaching, specialized teaching, and non-teaching space) in the comparison group schools, and (3) consider the site size of the comparison schools. In making its facilities offer, the school district must make a good faith effort to consider and accurately measure all of the facilities of the comparison group schools and accurately describe the facilities offered to the charter school. It is only through such an approach that one can determine whether "reasonably equivalent" facilities have been offered by the school district.
The District, in its facilities offer here, excluded from consideration over one million square feet of collective non-classroom space of the comparison group schools. Its past practice notwithstanding, the District failed even to consider total site size; had it done so, using its own methodology, its offer would have contained some 35 percent greater acreage. It overstated the facilities offered to Bullis by considering (1) a soccer field on a 100 percent basis even though its shared use made it available to the charter school for only 40 percent of the time, and (2) a multi-purpose room as being District-supplied, even though it was built, owned, and operated by Bullis. And the District used an arbitrary "standard" size figure for certain facilities (e.g., libraries), thereby understating the appropriate size of such facility to be offered to Bullis. Based upon these deficiencies in the aggregate, we hold that the facilities offer was inconsistent with the mandate of Proposition 39 that a school district conduct a fair assessment of the facilities needed by the in-district charter school students so that those facilities offered meet the reasonable equivalence standard. The court should have granted mandamus and declaratory relief making an affirmative finding that the District acted arbitrarily by failing to apply the proper legal standards in its facilities offer to Bullis, in violation of Proposition 39. Accordingly, we will reverse the judgment.
Bullis filed this action against the District on June 10, 2009.*fn2 In its amended petition and complaint (Petition), Bullis sought (1) a writ of mandate compelling the District to provide it with "reasonably equivalent facilities" as required under the law, and (2) a declaration from the court that the District's offer of facilities for the 2009-2010 school year violated Proposition 39 and its implementing regulations.
Bullis alleged in the Petition that it was established in the Spring of 2003.*fn3 Although neighborhood parents brought charter petitions that were twice rejected by the District, they ultimately obtained approval of their petition from the Santa Clara County Office of Education (Board). The Board continues to serve as Bullis's chartering authority. Bullis alleged that since its opening for the 2004-2005 school year, it has been a highly successful public charter school for kindergarten through sixth grades (K-6). It has been operating since its inception in portable buildings located on a portion of the District-run Egan Junior High School campus (Egan site). Its facilities at the Egan site are "considerably smaller than, and otherwise incongruous with, facilities and space offered to comparison District-run schools." Because of its claimed success, Bullis applied to the Board in September 2008 for a revision to its charter to permit the addition of seventh and eighth grades; although opposed by the District, the Board granted the application.
In September 2008, Bullis submitted to the District its annual "Proposition 39 facilities request" for the 2009-2010 school year, which included enrollment projections and a request for facilities for a newly authorized seventh grade classroom. The District made a preliminary offer of facilities on January 30, 2009. Bullis responded by noting a series of claimed deficiencies with the preliminary offer, and on April 1, 2009, the District submitted its final offer of facilities for the 2009-2010 school year (Facilities Offer, or Offer). Both the Facilities Offer and the preliminary offer (attached to the Facilities Offer) utilized in the analysis five District-run elementary schools as comparison schools (i.e., Loyola, Covington, Almond, Santa Rita, and Gardner Bullis [Gardner]). The final Facilities Offer did not provide any facilities for a seventh grade. Bullis notified the District that it would occupy the facilities offered by the District, but continued to communicate its position that the District's Offer was deficient in that it failed to offer any facilities for the seventh grade and did not propose reasonably equivalent facilities for K-6.
Bullis claimed in the Petition that the Facilities Offer violated the Act and Proposition 39. These violations included (1) failing to offer any seventh grade facilities; (2) omitting a significant amount of space at the five comparison schools; (3) treating facilities that Bullis shared with another school as if Bullis had fulltime use; (4) including in its offer a multi-purpose room which Bullis itself built, paid for, owned, and maintained; (5) charging Bullis for its own multi-purpose room on the same pro-rata per square foot basis as charged for indoor facilities the District itself provides; and (6) improperly imposing conditions in the Facilities Offer.*fn4 As a result, the District, in its Facilities Offer, placed Bullis on a site "little more than one-half the size of all other District elementary school sites."
The parties submitted substantial briefing and evidence by in support of, and in opposition to the Petition, including supplemental supporting and opposing papers. After hearing extensive argument, on November 24, 2009, the court issued an order denying the relief sought in the Petition. A judgment was thereafter entered in favor of the District, and Bullis filed a timely notice of appeal.
The 2009-2010 school year had ended by the time appellate briefing was completed in this case. Because the issues on appeal concern whether the District's final offer of facilities for the 2009-2010 school year violated the Act and Proposition 39, we deemed the potential mootness of this case to be of significant prominence which warranted further briefing. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 479 [mootness may be examined by appellate court on its own motion].) After considering the supplemental letter briefs of the parties, we conclude that this case is not moot. Moreover, even were we to find it moot, we would nonetheless exercise our discretion to decide the case because the issues are of sufficient public interest and are likely to recur.
Our high court, in a case addressing constitutional challenges to statutes regulating the training and furnishing of guide dogs for blind persons, has explained the principles of mootness: " '[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal. [Citations.]' [Citation.] . . . [S]ince it is established that the constitutionality of a statute may be tested [by a declaratory relief proceeding] . . . [citation], the general rule governing mootness becomes subject to the case-recognized qualification that an appeal will not be dismissed where, despite the happening of the subsequent event, there remain material questions for the court's determination. This qualification or exception has been applied to actions for declaratory relief upon the ground that the court must do complete justice once jurisdiction has been assumed [citation], and the relief thus granted may encompass future and contingent legal rights." (Eye Dog Foundation v. State Bd. of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541, fn. omitted, quoting Consolidated Vultee etc. Corp. v. United Auto. etc. Workers (1946) 27 Cal.2d 859, 863.)
Examples in which subsequent events have rendered a controversy moot are numerous. They include cases in which a legislative enactment eliminated the sole issue on appeal (Sagaser v. McCarthy (1986) 176 Cal.App.3d 288, 299); the child who was the subject of a guardianship order became an adult while the appeal was pending (Estate of McSwain (1917) 176 Cal. 287, 288); and the parties settled the disputes arising out of an underlying contract while the appeal was pending (Cappellino v. Moore (1929) 207 Cal. 36, 38). The mere passage of time after the entry of the judgment from which an appeal is taken may also render the controversy moot. (See, e.g., Feder v. Lahanier (1962) 200 Cal.App.2d 483, 484-485.)
Even if a case is technically moot, the appellate court may nonetheless exercise its discretion to decide the case. Such an exercise of discretion may occur where the case "poses an issue of broad public interest that is likely to recur." (In re William M. (1970) 3 Cal.3d 16, 23; see also Konig v. Fair Employment & Housing Com. (2002) 28 Cal.4th 743, 745-746, fn. 3.) This exception has been invoked in many instances in order to decide a case of continuing public interest. (See, e.g., Johnson v. Hamilton (1975) 15 Cal.3d 461, 465 [observing that it has been "frequently held that a case is not mooted from the fact alone that the issue in the case is of no further immediate interest to the person raising it"]; California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 303-304: "There is ample precedent for resolving important issues of substantial and continuing public interest that may otherwise evade review.") And the public interest exception has been applied in the context of a mandamus proceeding. (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 829-830, fn. 4.)
Another exception to the mootness doctrine is where there is a distinct possibility that the controversy between the parties may recur. (Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479 (Cucamongans United).) A third exception exists "when a material question remains for the court's determination [citation]." (Id. at p. 480.)
In this instance, although the 2009-2010 school year has long since passed--as has, of course, the 2010-2011 school year--it is readily apparent to this court that the controversy raised by Bullis's Petition is one that possibly, if not probably, will recur. The process by which Bullis, like all other charter schools, must request facilities from the District is an annual one. (See § 47614, subd. (b)(2).)*fn5 We conclude that the controversy is not moot because of the likely recurrence of a similar controversy concerning a future Bullis facilities request. (Cucamongans United, supra, 82 Cal.App.4th at p. 479.)
Under similar circumstances, the court in Environmental Charter High School v. Centinela Valley Union High School Dist. (2004) 122 Cal.App.4th 139 (Environmental Charter High School) applied this exception to the mootness doctrine. There, the charter school brought a mandamus proceeding challenging the denial of a facilities request based on school district's claim that there was a lack of documentation in support of the request. (Id. at pp. 143, 144.) The charter school argued that the additional information sought by the district was confidential and could not be released without the consent of the parents of the prospective students. (Id. at p. 143.) After the trial court granted the petition and the school district appealed, the appellate court, notwithstanding that the school year in question had expired, concluded that the case was not moot "because the parties' dispute over application of the regulations to a facilities request is likely to recur." (Id. at p. 144.)
Furthermore, even were we to find the recurrence of this controversy between the parties to be unlikely, we believe this case presents issues of broad public interest that are likely to recur. There are hundreds of charter schools currently operating in this state. At least according to one source--amicus curiae California Charter Schools Association--there are currently 912 California charter schools. (See http://www.calcharters.org/2010/11/2010-11-new-charter-schools-fact-sheet.html.) Issues concerning the manner in which school district facilities are allocated to charter schools under Proposition 39 are therefore undoubtedly of broad interest to the charter schools and the school districts receiving facilities requests. Further, there have to date been no published decisions specifically addressing a charter school's claim that a school district's reasonable equivalence analysis did not satisfy the requirements of Proposition 39. We therefore exercise our discretion (Save Stanislaus Area Farm Economy v. Board of Supervisors (1993) 13 Cal.App.4th 141, 147) to invoke the public interest exception to decide this case, notwithstanding the fact that the passage of time (i.e., the 2009-2010 school year) may have otherwise rendered this appeal moot.
II. Mandamus and Standard of Review
In a traditional mandamus action, an extraordinary writ may issue "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . ." (Code Civ. Proc., § 1085, subd. (a).) "The availability of writ relief to compel a public agency to perform an act prescribed by law has long been recognized. [Citation. ¶] What is required to obtain writ relief is a showing by a petitioner of '(1) A clear, present and usually ministerial duty on the part of the respondent . . . ; and (2) a clear, present and beneficial right in the petitioner to the performance of that duty . . . .' [Citations.]" (Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 539-540, superseded by statute as stated in Coachella Valley Mosquito & Vector Control Dist. v. California Public Employment Relations Bd. (2005) 35 Cal.4th 1072, 1077.) Courts have defined a ministerial act as " 'an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.' [Citation.]" (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.) "Thus, '[w]here a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion.' [Citation.]" (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1267; see, e.g., Doe v. Albany Unified School Dist. (2010) 190 Cal.App.4th 668, 682 [Education Code requiring districts to provide minimum number of hours of physical education imposed ministerial duty on district enforceable through mandamus].)
Courts have recognized implicitly the right to enforce through traditional mandamus proceedings a school district's obligations under Proposition 39. For instance, in Sequoia Union High School Dist. v. Aurora Charter High School (2003) 112 Cal.App.4th 185, 195 (Sequoia), the court found mandamus relief appropriate in order for a charter school to compel a school district to provide it with "reasonably equivalent" facilities as required under section 47614, subdivision (b). And in Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 991-992 (Ridgecrest), a charter school was ultimately successful in seeking mandamus to compel a school district, which had made a Proposition 39 facilities offer that included classrooms at five separate locations, to comply with its duty under section 47614, subdivision (b) of providing a charter school with "contiguous" facilities.
Our high court has described the appropriate level of judicial scrutiny of agency action " 'in any particular case is perhaps not susceptible of precise formulation, but lies somewhere along a continuum with nonreviewability at one end and independent judgment at the other.' [Citation.] Quasi-legislative administrative decisions are properly placed at that point of the continuum at which judicial review is more deferential; ministerial and informal actions do not merit such deference, and therefore lie toward the opposite end of the continuum." (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 575-576.) The First District Court of Appeal has enunciated some guiding principles for our consideration of this appeal: "Courts exercise limited review in ordinary mandamus proceedings. They may not reweigh the evidence or substitute their judgment for that of the agency. They uphold an agency action unless it is arbitrary, capricious, lacking in evidentiary support, or was made without due regard for the petitioner's rights. [Citations.] However, courts must ensure that an agency has adequately considered all relevant factors, and has demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling statute. [Citation.] Because trial and appellate courts perform the same function in mandamus actions, an appellate court reviews the agency's action de novo. [Citation.]" (Sequoia, supra, 112 Cal.App.4th at p. 195.)
III. The Act, Proposition 39, and Implementing Regulations
The Legislature adopted the Act in 1992 for the express purpose of "provid[ing] opportunities for teachers, parents, pupils, and community members to establish and maintain schools that operate independently from the existing school district structure . . . ." (§ 47601.) The Act had six stated goals: (1) improving student learning; (2) increasing opportunities for learning and expanding learning experiences, particularly for low-achieving students; (3) fostering teaching techniques that are different and innovative; (4) developing new teaching opportunities, including the opportunity to be responsible for learning programs at the charter school; (5) giving expanded choices in educational opportunities to parents and students beyond those available in the public school system; and (6) making charter schools accountable for achieving measurable student outcomes. (§ 47601, subds. (a)-(f).) When it amended the Act in 1998, the Legislature identified a seventh goal of affording robust competition within the public school system to encourage ongoing improvements for all public schools. (§ 47601, subd. (g), added by Stats.1998, ch. 34, § 1, pp. 193-194.)
The Act has survived constitutional challenge. In Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125 (Wilson), taxpayers asserted various constitutional challenges to the Act and amendments to it. The First District Court of Appeal (Division Four) rejected each of those challenges, including contentions that the 1998 amendments to the Act violated article IX, section 5 of the state Constitution in that they reflected the Legislature's abdication of control over public education functions (Wilson, at pp. 1134-1136), and gave operational independence to charter schools contrary to the constitutional mandate that the Legislature "provide a 'system of common schools' " (id., at p. 1136). As to the latter claim, the court observed that the Legislature in the 1998 amendment to the Act "explicitly found that charter schools are (1) part of the article IX 'Public School System'; (2) under its jurisdiction; and (3) entitled to full funding. (§ 47615, subd. (a).)" (Wilson, at p. 1137.) Wilson held that the Act met the constitutional mandate of uniformity within the public school system because it required that charter schools receive funding comparable to other public schools, hire teachers meeting the same minimum requirements as other public school teachers, maintain programs designed to meet state standards, and have their students' progress assessed under the same approach as other public school students. (Id. at p. 1138.)
California voters in November 2000 approved Proposition 39, which included amending section 47614. That statute had previously imposed a limited obligation upon a school district to provide facilities to charter schools: A district was required to provide to a charter school operating in its district, "at no charge, facilities not currently used by the school district for instructional or administrative purposes, or that have not been historically used for rental purposes." (Former § 47614, added by Stats.1998, ch. 34, § 15, pp. 202-203.) Proposition 39--containing the recital of the voters' intent "that public school facilities should be shared fairly among all public school pupils, including those in charter schools" (§ 47614, subd. (a), italics added)--significantly changed this obligation. (See California School Boards Assn. v. State Bd. of Educ. (2010) 191 Cal.App.4th 530, 540-541.) Instead of requiring each district to provide its castoff school property to charter schools at no cost, the voter-approved amendment provided in part: "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." (§ 47614, subd. (b), italics added.)*fn6
Proposition 39 had the effect of requiring districts to "make facilities available to charter schools operating in the district that will accommodate all the charter school's in-district students." (Sequoia, supra, 112 Cal.App.4th at pp. 189-190, fn. omitted.) As our colleagues in the Fifth District Court of Appeal have aptly explained, "These 'shared fairly,' 'reasonably equivalent,' and 'contiguous' provisions seem clearly to require a district, in responding to a Proposition 39 facilities request, to give the same degree of consideration to the needs of charter school students as it does to the students in district-run schools." (Ridgecrest, supra, 130 Cal.App.4th at p. 999, fn. omitted.)
The proposition established a procedural mechanism by which a charter school could make an annual facilities request to the school district in which the school operated, including in the request "a reasonable projection of the charter school's average daily classroom attendance by in-district students for the following year." (§ 47614, subd. (b)(2).) Districts were given the discretion to deny requests where the charter school projected less than 80 units of average daily attendance. (§ 47614, subd. (b)(4).) A charter school must make a showing of its enrollment projections with relevant supporting documentation in presenting its Proposition 39 facilities request to the school district. (Environmental Charter High School, supra, 122 Cal.App.4th at p. 153.) The Act, however, does not require the charter school to make its enrollment projections with "arithmetical precision." (Sequoia, supra, 112 Cal.App.4th at p. 196.)
C. Implementing Regulations
Proposition 39 also required the State Department of Education to propose, and gave the State Board of Education the authority to adopt, regulations to implement the amendment to section 47614, including regulations defining (among other terms), " 'conditions reasonably equivalent,' " and specifying annual facilities request procedures. (§ 47614, subd. (b)(6).) The State Board of Education in 2002 adopted regulations implementing the provisions of section 47614. (Cal. Code Regs., tit. 5, § 11969.1 et seq.)*fn7 New regulations were adopted by the State Board in 2008.
One regulation adopted by the State Board--regulation 11969.3, which is at the heart of this controversy--specifically addresses a school district's obligation to provide facilities to a charter school "sufficient . . . to accommodate all of the charter school's in-district students in conditions reasonably equivalent [to facilities they would receive] if they were attending other public schools of the district," as provided under section 47614, subdivision (b). Subdivisions (a) through (c) of regulation 11969.3 specify the school district's methodology for conducting a reasonable equivalency analysis in responding to a charter school's facilities request.
Regulation 11969.3, subdivision (a)(1), provides that "[t]he standard for determining whether facilities" offered to a charter school satisfy the statute's reasonable equivalency requirement "shall be a comparison group of district-operated schools with similar grade levels." As discussed in part IV.C., post, there are two, apparently alternative methods of determining the comparison group. (Reg. 11969.3, subd. (a)(2), (3).)
Subdivision (b) of regulation 11969.3 (captioned "Capacity") describes three categories of facilities a school district shall consider in its reasonable equivalence analysis.*fn8 A school district shall provide "teaching stations," "specialized classroom space," and "non-teaching station space," based upon methods of correlating the comparison group schools' facilities with the average daily attendance (ADA) of the students living in the district projected to attend the charter school. (Ibid.)
Regulation 11969.3, subdivision (c) (captioned "Condition") identifies the factors a school district must consider in determining "whether the condition of the facilities provided to a charter school is reasonably equivalent to the condition of the comparison group schools."*fn9 Included among those listed factors are the size of the school site (reg. 11969.3, subd. (c)(1)(A)), and the condition of play areas and athletic fields (reg. 11969.3, subd. (c)(1)(G)).
Regulation 11969.9 provides the procedure by which a charter school applies to a school district annually for facilities, and the school district responds to such a facilities request. The charter school must make a written request by November 1 of the preceding fiscal year (reg. 11969.9, subd. (b)), and the request must include, inter alia, a reasonable projection of its in-district students for the succeeding year and the method by which the projection was derived. (Reg. 11969.9, subd. (c)(1).) The school district may object to any of the charter school's projections (reg. 11969.9, subd. (d)), and the charter school may respond to those objections (reg. 11969.9, subd. (e)) within specified times. The district must prepare by February 1 a written preliminary proposal for facilities. (Reg. 11969.9, subd. (f).) "At a minimum, the preliminary proposal 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 . . . ." (Ibid.) The charter school may respond to the preliminary proposal by March 1 (reg. 11969.9, subd. (g)), and by April 1, the district must submit its final written offer of facilities, responding to any concerns or counterproposals by the charter school, and identifying specifically, among other things, "the teaching station, specialized classroom space, and non-teaching station space offered for the exclusive use of the charter school and the teaching station, specialized classroom space, and non-teaching station space to which the charter is to be provided access on a shared basis with district-operated programs; [¶ and] for shared space, the arrangements for sharing . . . ." (Reg. 11969.9, subd. (h)(1) & (2).)
IV. Compliance of District's Facilities Offer with Proposition 39
Bullis contends that the District violated Proposition 39, as elucidated by the implementing regulations, by failing to provide facilities for the 2009-2010 school year "sufficient for the charter school to accommodate all of [Bullis'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).) It argues that the District's analysis in its Facilities Offer was flawed in a number of respects, and that these flaws, individually and collectively, had the effect of falsely describing the facilities proposed to Bullis that would be reasonably equivalent under Proposition 39.
These claimed flaws in the District's analysis consist in (1) the exclusion of large portions of the outdoor space at the five schools in the comparison group, thereby significantly understating that space; (2) giving insufficient consideration to Bullis's overall site size in relation to the total acreage of each of the comparison group schools, thereby ignoring the fact that the Egan site offered to Bullis was significantly smaller than the comparison schools' sites; (3) the incorrect selection of five schools for the comparison group, rather than the three comparison schools in which the largest number of charter school students reside, thereby deflating the acres-per-student needed by Bullis students; (4) overstating the size of the facilities offered to Bullis; (5) the improper use of "standard room" sizes instead of actual room sizes for certain rooms (e.g., libraries), thereby decreasing the room sizes needed by Bullis; and (6) failing to provide a before- and after-school child care facility that was available to each of the schools in the comparison group. We will examine each of these claims below in the context of evaluating whether the District satisfied its ministerial duty of providing a facilities offer that met Proposition 39's requirement that Bullis's in-district students be offered and provided "reasonably equivalent" facilities.*fn10
B. Outdoor Space at Comparison Schools
Bullis contends the District's Proposition 39 analysis was flawed because it significantly understated the amount of exterior space for each of the five schools in the comparison group. It argues that under the regulations, and in particular regulation 11969.3, all space, such as the outdoor "non-teaching station space," must be considered, and the District may not exclude portions of the comparison group schools' outdoor space due to its belief that the excluded space was unusable (or for any other reason).
The Facilities Offer included a chart that, among other things, listed the outdoor space at each of the five comparison group schools; the space categories were described separately as "K play area," "non-K blacktop," and "Turf area." The chart also included a calculation of the average square footage for each of the three outdoor categories based upon the figures for the five comparison group schools.
Bullis presented evidence that large amounts (over 50 %) of exterior square footage were not included in the District's calculations, thereby understating the actual amount of outdoor space at the comparison schools. Bullis's evidence may be summarized in the following table:
Table 1 - Total Outdoor Space - Five Comparison Group Schools (sq. feet)