BCS' response - Bullis Charter School

Bullis Charter School 

102 West Portola Avenue 

Los Altos, CA 94022 

www.bullischarterschool.com 

March 1, 2012 

Jeffrey Baier, Superintendent 

LOS ALTOS SCHOOL DISTRICT/VIA ELECTRONIC MAIL AND HAND DELIVERY 

201 Covington Road 

Los Altos, CA 94024 

Re: Bullis Charter School Proposition 39 2012-2013 

Response to Los Altos School District 2012-2013 Preliminary Offer 

Dear Superintendent Baier: 

Bullis Charter School (“Bullis” or “BCS”) has received the Los Altos School District’s 

(“District” or “LASD”) Preliminary Offer of Facilities for the 2012-2013 school year dated 

February 1, 2012 (“Preliminary Offer”) in response to our request for reasonably equivalent 

school facilities for the 2012-2013 school year dated October 31, 2011 (“Facilities Request”) 

pursuant to Education Code § 47614 (i.e., Proposition 39) and 5 CCR § 11969.1 et seq. 

(“Implementing Regulations”). 

Despite the clear mandate of the Court of Appeal, the District’s Preliminary Offer fails to 

count over 80,000 sq. ft. of building space and over two million square feet of outdoor nonteaching 

space on the comparison group campuses. The table below shows the square 

footage the District has not counted in its analysis: 

COMPARISON SCHOOL SQUARE FOOTAGE NOT COUNTED 

Comparison 

School 

Excluded Building 

Space (SF) 1 

Excluded Outdoor 

Space (SF) 2 

Gardner 4,410 SF 253,021 SF 

Covington 11,111 SF 321,366 SF 

Santa Rita 4,748 SF 139,386 SF 

Almond 4,357 SF 122,069 SF 

Loyola 11,316 SF 168,875 SF 

Springer 9,793 SF 145,366 SF 

Blach 15,950 SF 674,366 SF 

Egan 19,363 SF 431,561 SF 

TOTAL 81,048 SF 2,256,010 SF 

1 This represents total building space including childcare facilities less all building space square footage the District reports on 

Exhibit D. 

2 Excluded Outdoor Space equals total site square footage reported in Preliminary Offer less parking lot areas, reported 

Kindergarten Playground space, reported Non-Kindergarten Blacktop, and reported Turfed Area space. Springer, Blach & Egan 

parking lot sizes were not provided by the District, so they were estimated using the average size of the school parking lots at the 

five other comparison school sites. No adjustment has been made here for the limited sharing arrangements being considered at 

Blach or the Egan camp site. See also attached Exhibit C.

To: Jeff Baier 

Re: Response to 2012-2013 Preliminary Offer of Facilities 

Date: March 1, 2012 

Page 2 of 48 

This letter, pursuant to 5CCR Section 11969.9(g), represents BCS’s Response to the Preliminary 

Offer. It outlines BCS’ concerns with the Preliminary Offer, addresses the dramatic differences 

between the District’s Preliminary Offer and BCS’ Facilities Request, and makes appropriate 

counterproposals. 

This letter also relies on information provided to BCS by Mr. Kenyon both verbally and by email 

that the District’s intent is to offer BCS the same facilities it currently has on the 6.23 acres Egan 

camp site, subject to an as yet unspecified sharing arrangement allowing Egan Junior High use of 

the camp site baseball field that represents the majority of the turfed area offered to BCS. We 

note that the District is required to specify all sharing arrangements in its Preliminary Offer and 

the upcoming final offer as required by § 11969.9(f). The District is also required to pro-rate the 

turfed space offered to BCS, rather than counting the entire baseball field as it does now, to 

account for the sharing arrangement it plans to impose while BCS is in session until 4:45 PM. . 

Please correct these errors in the final offer. The District also offers, for just 27 of BCS’s 

projected 7th and 8 th grade students, 3 two portable buildings and limited (and not fully specified) 

sharing on the non-contiguous Blach campus at the other end of the District territory. 

Bullis Charter School is deeply disappointed with this Preliminary Offer. 

The Preliminary Offer is “…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.” Bullis Charter School v. Los 

Altos School District 200 Cal. App. 4th 1022, 1030 (6 th Dist. 2011). The District is required to 

start with such an unbiased and good faith assessment and then repurpose its existing facilities as 

reasonably required. Instead, this Preliminary Offer illustrates the District’s ongoing annual 

practice of reaching a predetermined outcome regardless of the number of in-district BCS 

students; namely, to continue to house BCS on the 6.23 acres Egan camp site the Court of 

Appeal found insufficient rather than to reallocate the District facilities necessary to provide 

BCS with a reasonably equivalent contiguous site for its K-8 program. 4 The Preliminary Offer 

violates the law in furtherance of this objective by “employ[ing] practices that are contrary to the 

very intent of Proposition 39 that school district facilities be ‘shared fairly among all public 

school pupils including those in charter schools’.” Id. at 1064. Once again, the deficiencies in the 

facilities offer significantly distorts the Proposition 39 analysis with the result that the Bullis’s 

in-District students are not afforded reasonable equivalence. Id. at 1063. 

The District’s Preliminary Offer not only violates the provisions of Proposition 39 and the 

Implementing Regulations, but also violates both the spirit and letter of the recent Court of 

3 The District improperly refuses to use BCS’s projection of 493 K-8 students as required by Education Code 

§47614(b)(2). As will be discussed herein, the District instead makes individual counter-projections for particular 

grade levels and fails to provide any facilities for half of BCS’s 54 projected 7 th and 8 th grade students. 

4 Despite repeated requests from BCS the District has never stated the maximum student capacity of the Egan camp 

site, although it states (and over the years arbitrarily adjusts) the maximum capacity of all its other campuses.




Page 3 of 48 

Appeals decision in Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 

1022, in the following ways, each discussed in more detail herein: 

1) The District proposes to place the 439 BCS K-6 in-District students on the same 6.23 

acres Egan camp site that was found legally insufficient for just 327 in-District K-6 students by 

the Court of Appeal; 

2) The District’s Preliminary Offer defies the mandate of the Court of Appeal ruling in 

numerous ways, including but not limited to: 

a) failing to count ALL the space and facilities at the comparison schools, 

b) failing to make a good faith effort in its analysis to account for the admitted large 

disparity in the site size of the offered facilities and comparison school sites, and 

failing to evaluate the adequacy of the site size for its intended use, 

c) allocating both building and outdoor space based upon functionally limited subsets of 

the space at the comparison school sites, 

d) failing, even within the limited subsets of space it purports to offer reasonably 

equivalent allocations for, to allocate commensurate specialized teaching space and 

non-teaching space to BCS’s students; 

e) failing to count and allocate space for childcare facilities and the acreage they use, 

amphitheatres, special education rooms, and ELL rooms, 

f) counting a BCS owned facility as excusing the District from its Proposition 39 

obligation to itself provide ANY comparable multi-purpose space, 

g) using “standard room sizes,” rather than the actual size of certain facilities, 

h) failing to include with specificity all proposed sharing arrangements, and overstating 

the pro-rata amount of shared specialized teaching space and non-teaching space 

allocated to BCS students, and 

i) claiming that the Egan camp site is sufficiently “qualitatively superior” to the 

comparison school sites to neutralize the admittedly large site size disparity. 

3) The District improperly reduces the space it provides to BCS’s in-District students by: 

a) impermissibly using its own separate grade level projections for BCS’s 7th and 8 th 

grade enrollment rather than BCS’s reasonable K-8 enrollment projection, thereby 

failing to provide ANY facilities for 27 of BCS’s in-district students, and




Page 4 of 48 

b) inflating the District’s projected 2012-13 enrollment while undercounting its 

projected number of classrooms. 

4) The District impermissibly seeks to impose its grade level configuration on BCS, despite 

the Facilities Request being for a contiguous site for an integrated K-8 educational program, as 

authorized by BCS’s chartering authority; 

5) The District’s proposal to split BCS’s integrated K-8 program onto two non-contiguous 

sites, restricting the use of each to students of specific grades, and thereby failing to provide the 

single contiguous site required by statute and requested by BCS is seriously disruptive to BCS’s 

program and violates the law since: 

a) BCS’s forecast in-district students can be accommodated on any one of a number of 

District contiguous sites, including the greater Egan campus, 

b) Splitting BCS onto two campuses at opposite ends of the District would change the 

fundamental nature of BCS’s K-8 structure, make interactions between students of 

different grade levels that are core to the program impractical, and disrupt the crossutilization 

of teachers, staff, programs and pedagogy, and 

c) The Egan Junior High is adjacent to the Egan camp site and has the capacity to 

accommodate BCS 7 th and 8 th grade students. 

6) Certain Facilities in the Preliminary Offer are unusable or unsuitable to accommodate 

BCS students in conditions reasonably equivalent to those of the District’s comparison group 

schools. A single 960 SF portable is proposed as allegedly reasonably equivalent space for a 

multitude of incompatible specialized and non-teaching space activities, assuring that the space 

cannot be furnished and equipped in a manner that provides BCS students with the reasonably 

equivalent space needed to engage in those activities. The District’s offer of space at Blach is 

grossly inadequate and fails to provide BCS 7th and 8 th graders with an amount of time in 

specialized classrooms and non-teaching spaces reasonably equivalent to that enjoyed by their 

District peers. 

The District’s Preliminary Offer also fails to provide a reasonably equivalent complement of the 

teaching station, specialized and non-teaching station space available at the comparison schools. 

To “support” its allocation of an insufficient space, as well as a non-contiguous site for BCS’s 

7th and 8 th grade students, the District makes a series of undocumented Board findings designed 

solely in closed session(s) with legal counsel. In doing so the District’s actions lack the 

transparency required by the Brown Act and violate the basic premise of Proposition 39: that 

public school facilities be shared equally and fairly among all public school students.




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The following table compares the space provided at the District’s comparison schools on a perstudent 

basis with the facilities offered to BCS in the Preliminary Offer. The discrepancies 

shown here need to be fully documented and explained by the District prior to its final offer to 

enable BCS or any other party to make a full assessment of the District’s offer. 

SPACE AT COMPARISON 

Comparison BCS BCS Preliminary Discrepancy 

GROUP SCHOOL SITES 

School Avg/ADA ADA 5 Equivalent Offer 6 

BUILDING SPACE 

1) Total Building Space K-6 Sites 84.8 SF/ADA 439 37,188 SF 31,680 SF 5,508 SF 

2) Total Building Space 7-8 Sites 138.5 SF/ADA 54 7,479 SF 2,800 SF 4,679 SF 

TOTAL BUILDING SPACE 

DISCREPANCY (1+2) 

10,187 SF 

BUILDING SPACE BY TYPE 

Teaching Stations 

K-6 Sites 36.9 SF/ADA 439 16,181 SF 17,280 SF -1,099 SF 

7-8 Sites 26.7 SF/ADA 54 1,439 SF 960 SF 479 SF 

Specialized Teaching Space Identified 

in Exhibit D 

K-6 Sites 13.7 SF/ADA 439 5,982 SF 5,760 SF 222 SF 

7-8 Sites 40.7 SF/ADA 54 2,196 SF 707 SF 1,489 SF 

Non-Teaching Space Identified in 

Exhibit D 

K-6 Sites 22.9 SF/ADA 439 10,035 SF 8,640 SF 1,395 SF 


Building Space Excluded From 

Exhibit D 7 

K-6 Sites 11.4 SF/ADA 439 4,990 SF 0 SF 4,990 SF 


OUTDOOR SPACE 8 

3) All Outdoor Non-Teaching Space K-6 859 SF/ADA 439 8.66 acres 5.41 acres 3.25 acres 

4) All Outdoor Non-Teaching Space 7-8 1,162 SF/ADA 54 1.44 acres 0.03 acres 1.41 acres 

TOTAL OUTDOOR NON- 

TEACHING SPACE 

DISCREPANCY(3+4) 

4.66 acres 

5 The K-6 portion of BCS’s in-District enrollment projection (439) is uncontested. For grades 7-8 each section has a 

line using the 7-8 grade portion of BCS’s affirmed and documented enrollment projection. Since the District 

projection of 466 used in the Preliminary Offer assumes just 27 ADA for 7 th and 8 th grades, dividing the BCS 

Equivalents on the 7 th and 8 th grade lines by two provides the totals using the District counter-projection of 466. 

6 Includes pro-rata shared space at Blach for 7 th and 8 th grade students. See Section VII.A. Includes an estimated prorata 

adjustment at Egan to account for Egan’s use of the baseball field 7.5 hours per week during fall. 

7 This building space has not been counted and identified by the District. ALL building space must be accounted for 

as either Teaching Stations, Specialized Teaching Space, or Indoor Non-Teaching Space. 

8 Outdoor space is total site square footage as reported in Preliminary Offer page 14 less total building space. The 

Preliminary Offer appears to only contemplate an allocation within limited subsets (tennis courts and track) of the 

outdoor space at Egan and Blach.




Page 6 of 48 

BCS’s in-District students will be accommodated in far less building space and outdoor space 

than their District peers if the Preliminary Offer is not substantially revised. 

Using BCS’s affirmed enrollment projection of 493 in-District K-8 students, the amount of 

additional building space the District would need to provide to equalize the square footage of 

building space per in-District ADA is 10,187 square feet, or 10.61 standard portables of 960 sq. 

ft. each. The amount of additional outdoor nonteaching space required to equalize the acreage 

per in-District ADA is 4.66 acres. 

Even using the District’s improperly used counter-projection of 466 in-District K-8 students, the 

amount of additional building space the District would need to provide to equalize the square 

footage of building space per in-District ADA is 6,448 square feet, or 6.72 standard portables of 

960 sq. ft. each. The amount of additional outdoor nonteaching space required to equalize the 

acreage per in-District ADA is 3.94 acres. 

CHARTER SCHOOL AND DISTRICT STUDENTS ARE REQUIRED TO BE TREATED EQUALLY 

WHEN IT COMES TO THE ALLOCATION OF FACILITIES BETWEEN THEM 

Proposition 39, as codified at Education Code Section 47164, requires that a school district must 

accommodate a charter school’s in-district students in facilities “reasonably equivalent to those 

in which the students would be accommodated if they were attending other public schools of the 

district.” Facilities must also be contiguous, furnished, and equipped, and the District must make 

reasonable efforts to provide the charter school with facilities near to where the charter school 

wishes to locate. Proposition 39 and its Implementing Regulations (Title 5, California Code of 

Regulations Sections 11969.1 through 11969.11) also set forth in detail the manner by which this 

standard must be achieved. Unfortunately, the District has violated numerous provisions of 

Proposition 39 and its Implementing Regulations in its Preliminary Offer of facilities to BCS. 

Specifically, the California Court of Appeal has made clear that in meeting their Proposition 39 

obligation, “[a school district shall] give the same degree of consideration to the needs of charter 

school students as it does to the students in district-run schools….subject to the requirement that 

the facilities provided to the charter school must be ‘contiguous’.” Ridgecrest Charter School v. 

Sierra Sands Unified School District, (2005) 130 Cal.App.4th 986. The court noted that in 

handling Proposition 39 facilities issues, a school district’s actions “must comport with the 

evident purpose of the act to equalize the treatment of charter and district run-schools with 

respect to the allocation of space between them” and must “demonstrate a rational connection 

between those factors, the choice made, and the purposes of [Proposition 39].” 

This analysis was further supported and reinforced by recent Court of Appeal decisions, 

specifically Bullis Charter School v. Los Altos School Dist., 200 Cal. App. 4th 1022 (2011) and 

California School Bds. Assn. v. State Bd. of Education, 191 Cal. App. 4th 530 ( 3d Dist. 2010). 

In Bullis, the Court of Appeal considered the District’s offer of the Egan camp site for 327 K-6 

in-district students and found it insufficient. The Court of Appeal held that “[u]nder Proposition




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39 and the implementing regulations, a school district must allocate in its facilities offer, and 

provide to in-district charter school students, facilities with ‘conditions reasonably equivalent to 

those in which [charter school] students would be accommodated if they were attending other 

public schools of the district’. (§47614, subd. (b).) The District did not meet this obligation.” 

[Emphasis added]. Id. 

The District now inexplicably offers the same non-compliant Egan camp site for 439 K-6 indistrict 

students (more than 100 more students) for 2012-2013 in apparent disregard of the 

Court’s finding. In doing so the District makes a series of unsubstantiated and self-serving 

findings that allocating additional space currently used by District programs to BCS would 

violate its obligations to “treat equally all of its students”. By definition, if charter students are 

currently receiving less than a reasonably equivalent share of facilities as the Bullis Court found, 

and all District facilities are currently being used, then short of the District acquiring new space, 

a reallocation of some facilities from District programs is in fact required to treat charter and 

District students equally. As Ridgecrest noted, the District is merely being required “…to 

accommodate its existing students in a different configuration than it would otherwise.” The 

Ridgecrest Court required such a reallocation of facilities currently in use stating that 

“accommodating [the charter school’s] facilities request will cause some, if not considerable, 

disruption and dislocation among the District’s students, staff, and programs. But section 47614 

requires that the facilities ‘should be shared fairly among all public school pupils, including 

those in charter schools.’” The District’s findings of alleged disruption do not relieve the District 

of its obligation to repurpose facilities as needed to share fairly with BCS in-district students. 

The paradigm under which Proposition 39 operates is that in-district students who choose to 

attend a charter school do not lose their right to be educated in reasonably equivalent school 

facilities. Here, the District has once again failed to share its existing facilities fairly among all 

public school pupils, and has gone a step further to make it difficult (if not impossible) for BCS 

to operate its integrated K-8 educational program. 

I. THE DISTRICT CONTINUES TO VIOLATE THE LAW BY PLACING 439 BCS K-6 

STUDENTS ON A SITE THE COURT OF APPEAL HAS ALREADY FOUND 

INSUFFICIENT FOR 327 K-6 STUDENTS 

In the 2009-2010 school year the District offered the same Egan camp site to 327 BCS K-6 

students that it is now proposing to offer to 439 BCS K-6 students. In fact, throughout the recent 

litigation, the District asserted that the Egan camp site was about three-quarters of an acre larger 

than its actual size of 6.23 acres and that it had provided 19 classrooms to BCS for its 327 

students. Eventually the District admitted in court that its architect had measured the wrong 

boundaries for the site, including a portion of the adjacent Egan Jr. High. 

While the litigation was ongoing and even as BCS enrollment grew rapidly, the District ignored 

BCS’s objections and again provided the undersized Egan camp site to BCS for the 2010-2011 

and 2011-2012 school years. Even after now acknowledging that the Egan camp site is smaller




Page 8 of 48 

than the District had claimed, the District again offers the same 6.23 acre site in 2012-2013 to 

more than 100 more BCS in-district students. The Preliminary Offer provides two fewer 

classrooms (17) than the District told the court were on the site when it was found insufficient. 

This Preliminary Offer therefore flagrantly disregards the finding of the Sixth District Court of 

Appeal that the Egan camp site was insufficient for 327 K-6 students, let alone the 439 the 

District now proposes to house there. The Court of Appeal stated: 

“Moreover, the failure of the District to consider the overall site size of the comparison group 

schools in determining the appropriate site size Bullis’ in-District students should receive under 

Proposition 39 violated regulation 11969.3, subdivision (c)(1)(A). This consideration was of 

some importance here, as demonstrated by the fact that had site size been considered by the 

District, the Egan site would have been determined to be only about 75 percent of the acreage 

appropriate for Bullis’s in-District students (or only 68 percent if the soccer field were prorated 

based upon its shared use). Under Proposition 39 and the implementing regulations, a school 

district must allocate in its facilities offer, and provide to in-district charter school students, 

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).) The District did not meet this obligation.” Bullis Charter School v. Los Altos 

School District (2011) 200 Cal. App. 4th 1022 [Emphasis added]. 

If the District did not meet that obligation by offering this site in 2009-2010 for 327 in-District 

students, how can it have met its obligation in 2010-2011 and 2011-2012, when it offered 

essentially the same site for a rapidly growing charter school population This Preliminary Offer 

once again distorts the facts to substantiate the District’s pre-determined offer of the very same 

non-compliant site to BCS K-6 students in 2012-2013. 

II. 

THE PRELIMINARY OFFER VIOLATES THE LETTER AND SPIRIT OF THE 6TH 

DISTRICT COURT OF APPEAL OPINION IN BULLIS CHARTER SCHOOL V. LOS 

ALTOS SCHOOL DISTRICT 

The Court of Appeal made numerous findings in its published Opinion not only that the 

methodology used by the District in compiling its offer was flawed in multiple ways, but also 

that the District failed to allocate and provide reasonably equivalent facilities to BCS. 

The Court found that the District must count all the building space and acreage at the comparison 

schools, rather than imposing its own assertions that certain areas of space were not being used 

or should not be counted. The Court found that in providing the 6.23 acres Egan camp site, the 

District failed to make a good faith effort to account for the large site size disparity between the 

camp site and the District’s comparison school sites. The Court held that if the District had done 

these things, it would have been apparent to the District (as the Court of Appeal held) that the 

Egan camp site and its buildings was an insufficient allocation of District space and facilities for 

the 327 in-District BCS K-6 students then projected.




Page 9 of 48 

The Court made further findings that the District may not base its allocation and provision of 

space to BCS under Proposition 39 on limited District defined subsets of the total space available 

at the comparison sites; that the District improperly failed to offer and provide before and after 

school care facilities and an outdoor amphitheatre; that the District failed to provide any multipurpose 

space comparable to that at the comparison sites, wrongfully claiming it was excused 

from its obligation to do so because of a facility BCS built, paid for and maintains itself; that 

actual room sizes, rather than fictional “standard room sizes” must be used in determining the 

allocation of facilities; that the District must pro-rate shared space, specify the details of all 

sharing arrangements, and account for restrictions it places on the use of space in its equivalency 

analysis and many more such mandates. The Court also found that even within the three limited 

subsets of outdoor space (K play area, non-K blacktop, and turf area) for which the District 

provided BCS with specific allocations, the District’s analysis violated the reasonably 

equivalency standard. 

The District continues to defy the regulations, ignore these mandates of the Court of Appeal as 

discussed below, and ignore its own statements to the California Supreme Court and the Court of 

Appeal as to what it must do under the Court of Appeal ruling. 

A. THE DISTRICT AGAIN FAILS TO COUNT ALL THE SPACE AT THE COMPARISON 

GROUP SCHOOLS. 

The Court of Appeal stated, “In making its facilities offer, the school district must make a good 

faith effort to consider and accurately measure all of the facilities at the comparison group 

schools,” Id. at 1030. The Court of Appeal found that by significantly understating the space at 

the comparison group schools, the District failed to account for, and to allocate and provide 

reasonably equivalent space for, significant building space and over one million square feet of 

outdoor space it provides at the comparison schools. Id. at 1030, 1062. 

The District explained to the California Supreme Court part of the Court of Appeal’s mandate as 

follows: 

“However, the Opinion ignores this facilities-based approach, and instead requires a 

district measure all square feet of space which is not considered “teaching station space” 

or “specialized classroom space” in order to allocate an identical amount of square 

footage to the charter school.” (Reply to Answer to Petition for Review, page 12), 

“The Opinion also concludes that a district must count every facility at every comparison 

school and provide each facility to the charter school…” (Reply to Answer to Petition for 

Review, page 13), and 

“Specifically, under the Opinion, a district must…:




Page 10 of 48 

• Include any “non-teaching station space” at comparison group schools in measuring the 

amount of space to provide the charter school, regardless of whether such space is usable 

by the district staff and/or students;” (Petition for Review, pages 22-23) 

In the Preliminary Offer the District has not even come close to doing any of these things it 

declared to the California Supreme Court it is legally obligated to do. As one example, Exhibit 

D of the Preliminary Offer identifies thirteen rooms which, according to the District, are used by 

students enrolled in the comparison group schools but which the District has excluded from the 

comparison group school teaching space. Exhibit D also identifies specialized teaching space 

provided at the two comparison group junior high schools that the District has excluded from the 

comparison group school specialized teaching space. 

The District’s calculation of “non-teaching space” at the comparison group schools is 

significantly less than site size, minus “teaching space” and “specialized teaching space.” The 

Court of Appeal affirmed the unambiguous language of the regulations defining “non-teaching 

space” as “ALL” space other than teaching (classroom) space and specialized teaching space. Id. 

The Court of Appeal expressly rejected the District’s argument that the District could 

divide the space into District defined functional categories and count and allocate against 

only those categories the District deems “material” Id. at 1044. If the space exists at the 

comparison sites, count it, the court concluded. 

The table below, repeated from the front of this document, shows the large amount of space at 

the comparison campuses that the District continues not to count as required. 

COMPARISON SCHOOL SQUARE FOOTAGE NOT COUNTED 

Comparison 

School 

Excluded Building 

Space (SF) 9 

Excluded Outdoor 

Space (SF) 10 

Gardner 4,410 SF 253,021 SF 

Covington 11,111 SF 321,366 SF 

Santa Rita 4,748 SF 139,386 SF 

Almond 4,357 SF 122,069 SF 

Loyola 11,316 SF 168,875 SF 

Springer 9,793 SF 145,366 SF 

Blach 15,950 SF 674,366 SF 

Egan 19,363 SF 431,561 SF 

TOTAL 81,048 SF 2,256,010 SF 

9 This represents total building space including childcare facilities less all building space square footage the District 

reports on Exhibit D. 

10 Excluded Outdoor Space equals total site square footage reported in Preliminary Offer less parking lot areas, 

reported Kindergarten Playground space, reported Non-Kindergarten Blacktop, and reported Turfed Area space. 

Springer, Blach & Egan parking lot sizes were not provided by District, so they were estimated using the average 

size of the school parking lots at the five other comparison school sites. No adjustment has been made here for the 

limited sharing arrangements being considered at Blach or the Egan camp site. See also attached Exhibit C.




Page 11 of 48 

Despite its statements to the California Supreme Court and its clear failure to do what it said it 

must under the law, the District has the audacity to assert that its Preliminary Offer is compliant. 

As the Court of Appeal ruled, if the District counts all the space as it must, the Egan camp site 

and the buildings on it are insufficient to accommodate 327 K-6 students, let alone the 439 in- 

District K-6 BCS students the District now proposes to place there for the 2012-2013 school 

year. 

B. THE DISTRICT AGAIN FAILS TO MAKE A GOOD FAITH EFFORT TO ACCOUNT FOR 

THE ADMITTEDLY LARGE SITE SIZE DISPARITY CONFIRMED BY THE COURT OF 

APPEAL. 

The Court of Appeal concluded that the site size of the Egan camp site was insufficient for 327 

BCS students stating: 

“[T]he 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.” Id. at 1030. 

“Moreover, the failure of the District to consider the overall site size of the comparison group 

schools in determining the appropriate site size Bullis’s in-District students should receive under 

Proposition 39 violated regulation 11969.3, subdivision (c)(1)(A).” Id. at 1062. 

It seemed as though the District understood the scope of this holding when it told the California 

Supreme Court: 

“Specifically, under the Opinion, a district must…: 

• Allocate for exclusive use a school site of equal size to those of the comparison group 

schools…” (Petition for Review, pages 22-23) 

In fact, the District was so sure the Court of Appeal decision requires this point that it repeated it 

twice, stating “…the Opinion transforms site size into an overriding consideration, requiring a 

district to provide a site of equal size to those of the comparison school sites regardless of the 

charter school’s ADA.” (Petition for Review, page 30). 

However, the District’s Preliminary Offer essentially ignores the admitted site size disparity and 

makes passing mention of some of this space in its “checklist” appendix. It then dismisses over 

two million square feet of space at comparison sites as “marginal spaces” for which it need not 

allocate any reasonably equivalent facilities to BCS. In fact, the District fails to conduct any 

analysis of the suitability of the site size offered for its intended use, as required under 

§11969.3(c)(1)(E). The line on Exhibit B of the Preliminary Offer labeled “Size for intended 

use” is blank.




Page 12 of 48 

The District apparently thinks that all that is necessary to address a significant “unconsidered site 

size disparity” is for the District to note the disparity and dismiss it. This is not the “good faith 

effort to achieve reasonable equivalence” that the Court of Appeal mandated. 

C. THE DISTRICT CONTINUES TO IMPERMISSIBLY EXCLUDE, AND FAIL TO 

ALLOCATE AND PROVIDE, BOTH BUILDING AND OUTDOOR SPACE BASED UPON 

LIMITED FUNCTIONAL CATEGORIES. 

The Preliminary Offer continues to allocate and provide building space only in District chosen 

functional categories. The Court of Appeal held “There is no support in the regulations for 

this viewpoint.” Bullis at 1047 [Emphasis added]. This practice must stop. 

1) THE$DISTRICT$MUST$COUNT$ITS$CHILDCARE$FACILITIES,$AMPHITHEATRES,$SPECIAL$ 

EDUCATION$ROOMS,$AND$ELL$ROOMS$AS$PART$OF$ITS$SPECIALIZED$CLASSROOM$AND$NON4 

TEACHING$SPACE,$AND$ALLOCATE$REASONABLY$EQUIVALENT$SPECIALIZED$CLASSROOM$AND$ 

NON4TEACHING$SPACE$TO$BCS$. 

The District, explaining to the California Supreme Court what it must do under the Court of 

Appeal Opinion in Bullis, stated the following: 

“Building on this holding, the Opinion also concludes that a school district must count every 

category of facility at every comparison school site, even if that category is not generally 

available to students attending those schools.” Request for Depublication, Bullis Charter School 

v. Los Altos School District, at page 6., 

“…the Opinion requires all space…be included in the comparison calculation.” Request for 

Depublication at page 6, and 

“Third, it [the Opinion] requires that a school district provide before- and after-school child care 

facilities.” Request for Depublication at page 6. 

Once again the District’s Preliminary Offer does none of these things. The District admittedly 

has buildings used for before-and-after school child care on each of its K-6 comparison sites. 

District students enjoy the use of those facilities. The District not only continues to exclude 

these facilities from its analysis as it has done despite repeated requests from BCS, but it goes a 

step further and deducts from the acreage at each comparison site the land used by the childcare 

facility from the total site acreage. 

The only variable in the District’s offers each year regarding its buildings used for childcare are 

the reasons the District thinks it need not include these facilities. In prior years the District has 

said these were not “the type of facilities covered by Proposition 39” or that BCS did not really 

want or need them. Now the District asserts that because for many years it has leased these 

facilities to be run by a third party provider, that somehow excuses it from needing to count and




Page 13 of 48 

allocate such space to BCS. Under the same logic, if the District hires a third party to prepare 

school lunches and run its servery/lunch areas, it would no longer have to provide a servery to 

BCS. 

In addition, the District excludes thousands of square feet of specialized classroom space from its 

analysis, alleging they need not be included because the District uses these rooms for special 

education classes or ELL classes. The District continues to assert that how it chooses to 

functionally use space on its campuses determines whether it must offer equivalent space to 

BCS. The Bullis Court found “[t]here is no support in the regulations for this viewpoint.” Bullis 

at 1047. The Court went on to state that, “[t]he approach in the Facilities Offer of excluding 

significant amounts of non-classroom space from the District’s reasonable equivalence analysis 

violated Proposition 39 and its implementing regulations. The practice was inconsistent with the 

District’s obligation of identifying, offering, and providing facilities sufficient to accommodate 

Bullis’s in-District students in conditions reasonably equivalent to facilities they would have 

received had they elected to attend District-run schools” Bullis at 1049-1050. 

Every one of these facilities must be accounted for regardless of how they are used on the 

comparison school sites or of how BCS might choose to use them. After including all facilities 

as classrooms, specialized classroom space, or non-teaching space, the District must allocate a 

reasonably equivalent amount of each. The District’s continued effort to create subsets of space 

that it can exclude from the space it must allocate against must stop. 

2) THE$DISTRICT$CONTINUES$TO$ALLOCATE$OUTDOOR$SPACE$USING$THE$SAME$LIMITED$ 

SUBSETS$REJECTED$BY$THE$COURT$OF$APPEAL.$ 

The Court of Appeal found that: 

“Notwithstanding the apparently clear mandate of the implementing regulations, the District in 

the Facilities Offer her does not “allocate and/or provide access to non-teaching station space” 

to Bullis based upon its in-district classroom ADA and the per-student amount of such space in 

the comparison group schools, as required under regulation 11969.3, subdivision (b)(3). Instead, 

the District identifies a much smaller subset of the nonteaching station space—namely, K play 

area, non-K blacktop, and turf area. It then provides measurements and averages of those three 

areas at the comparison group schools, and formulates its Offer to Bullis based upon those three 

subcategories of space within the nonteaching station space category.” Bullis at 1046-1047. 

[Emphasis added]. 

The District continues to allocate outdoor non-teaching space in only three limited categories: 

“Kindergarten Playground”, “Non-Kindergarten Blacktop”, and “Turfed Area”. Preliminary 

Offer at 22. The District continues to essentially ignore over one million square feet of space at 

its K-6 comparison sites that it does not place into any of these three categories, instead calling 

these areas “marginal spaces” and refusing to allocate or provide BCS with reasonably




Page 14 of 48 

equivalent space for them. Preliminary Offer at 15. It then compounds its non-compliance by 

ignoring a second million square feet of outdoor space at its middle school comparison sites. 

The Court found that the space the District excludes from these categories includes lunch areas, 

outdoor amphitheatres, play structures, portions of baseball fields, large grassy play areas, 

blacktop areas between buildings and all concrete/whitetop areas, portions of a baseball field at 

Covington, landscaping, etc. Bullis at 1045-1046. 

The Court then held that: 

“Allowing a school district to allocate only some portion of nonclassroom space to a charter 

school based upon an evaluation of limited areas of the comparison group schools would be 

contrary to the intent of the voters adopting Proposition 39 that school district facilities be 

‘shared fairly’ among all public school pupils.” Bullis at 1049. [Emphasis added]. 

The District’s Preliminary Offer makes brief mention of these various spaces, but continues to 

not allocate or provide any reasonably equivalent space for them. The District must make a good 

faith effort to allocate such space to BCS. 

D. EVEN WITHIN THE CATEGORIES IT CONSIDERS, THE DISTRICT FAILS TO 

ALLOCATE AND PROVIDE COMMENSURATE SPACE TO BCS. 

After evaluating the three categories of outdoor non-teaching space for which the District 

provides specific allocations to BCS, the Court of Appeal found multiple deficiencies. Bullis at 

1062. The District continues to under allocate space even in the categories it lists in the 

Preliminary Offer allocation tables. 

The District’s own chart on page 22 of the Preliminary Offer shows that even within the three 

subsets of outdoor non-teaching space the District considers, it significantly under allocates to 

BCS. By its own calculations in this chart, BCS in-District students receive just 73% of the 

average “Kindergarten Playground”, 93% of the average “Non-Kindergarten Blacktop”, and 72% 

of the “Turfed Area”. Furthermore, the Turfed Area amount provided to BCS has not been 

adjusted downward as required to account for the sharing arrangements the District plans to 

impose on its use. 

Within the building space categories it considers in its table on page 21, adjusting for actual 1440 

sq. ft. library being allocated to BCS and completing the per ADA amount for multi purpose 

space shows that simply with those two corrections the District has provided BCS with 3.12 

portables of less space per student than the comparison school average. 

This space represents only a small portion of the total space the District has in fact failed to fairly 

consider, and allocate reasonably equivalent space for, in violation of the Court of Appeal 

Opinion.




Page 15 of 48 

E. THE DISTRICT IMPERMISSIBLY CONDITIONS ITS ALLOCATION OF DISTRICT 

MULTI PURPOSE SPACE ON THE REMOVAL OF A BULLIS-BUILT BUILDING. 

The Court of Appeals held that,”…it is likewise inappropriate for a district to count charterschool-owned 

facilities. Therefore, we agree with Bullis that a school district may not include 

nondistrict facilities in its Proposition 39 analysis.” Bullis at 1059. 

The District seemed to understand this ruling when it told the California Supreme Court: 

“The Opinion further requires exclusion of any facilities improved by a charter school.” 

Reply to Answer to Petition for Review at 15 (Emphasis added). 

In the table on page 21 of the Preliminary Offer, the District reports that it provides an average of 

8.14 square feet of “Multi Purpose” building space per ADA at the comparison group schools. 

Completing the table on the multi-purpose space line using the same methodology as the District 

uses in the rest of the table shows reasonably equivalent multi-purpose building space for BCS’s 

K-6 students is 3,573.46 sq. ft. 

The Preliminary Offer includes no facilities allocation to BCS for this space, stating instead 

“Provided by BCS – Not Counted”. This directly contradicts the Court’s holding (and the 

District’s statement to the California Supreme Court) that space provided by BCS cannot be 

included in the Proposition 39 analysis and it is “inappropriate under such circumstances for 

…[the District] to count facilities provided by [BCS]…as partially satisfying the [District’s] 

Proposition 39 obligation...” Bullis at 1059. 

As the Court in Bullis noted, BCS built a building called a multi-purpose Room. A Multipurpose 

Room is simply a large room that can be used for many different functions. Having two 

buildings that can be used for many different functions is not redundant as the District suggests, 

but rather provides students with critical indoor space for multiple activities. BCS could easily 

designate the BCS MPR an “Auditorium” or a “Theater” and it should not alter the District’s 

obligation to provide its own reasonably equivalent space to buildings on the comparison sites. 

In footnote 9 on page 21, the District attempts to condition its providing of such space on the 

removal of the BCS-owned building. However, the District is prohibited from including the 

BCS-owned building in its Proposition 39 analysis in any way and must provide its required 

allocation of facilities. Whether and when it can require BCS to remove the Bullis-owned 

building is an entirely separate issue governed by the terms of the agreement between the parties 

when the building was built. The District cannot condition its fulfillment of a legal obligation on 

BCS taking an entirely voluntary action. 

The April 6, 2007 Final Offer of Facilities states that “the District will allow BCS to retain” the 

building space the District had allocated as reasonably equivalent to its own multi- purpose 

space, while granting Bullis the right to install its own additional “large multi-purpose building.”




Page 16 of 48 

Thus, at the time the parties agreed that BCS’s installation of a multi-purpose building for 

additional space did not excuse the District from continuing to provide reasonably equivalent 

space to the District’s own multi-purpose building space. After all, why else would BCS have 

spent hundreds of thousands of dollars to build it The terms of the agreement between the 

parties was in the Court record and is consistent with the Court of Appeal’s holding. 

The agreement between the parties regarding the BCS-building does not give the District the 

right to order removal of the building at any time. The Facilities Use Agreement from the 2007- 

2008 school year and each year thereafter reflects the parties’ agreement that the building would 

be subject to removal only if and when BCS ceases to use the Egan Camp Site. That agreement 

states, “Upon termination or cessation of this Agreement, of the Charter School’s use of the Site, 

or of its charter, the Charter School shall bear all responsibility for removal and clean-up of the 

building on the Site, and for restoring the Site to its original condition. The District reserves the 

right to require that the building remain at the Site upon terms to be mutually agreed upon by the 

parties.” 

The District cannot now condition its provision of reasonably equivalent space required by 

Proposition 39 and the Court of Appeal ruling on a requirement that BCS now remove the 

building the District expressly approved in 2007 without any negotiated agreement to diminish 

the amount of building space to be provided by the District. 

The only other basis the District offers for failing to allocate reasonably equivalent space to the 

multi-purpose space on the comparison school sites is its purported “overallocated building 

space” in categories chosen by the District on page 21 of the Preliminary Offer. However, even 

ignoring other errors in the District’s “net surplus” calculations, this “excess” space amounts to 

just 0.98 of one portable, far less than the 3.72 portables of multi-purpose space that would be 

comparable. In addition, this 98% of one portable that the District claims to be providing in lieu 

of multi-purpose space is the same space the District relies upon to offset its failure to allocate 

multiple other categories of specialized and non-teaching space (see page 22) and to establish the 

alleged “qualitative superiority” of the Egan Site (page 15) that it claims makes a campus 

roughly half the size of comparison campuses reasonably equivalent. It strains belief that less 

than a single portable can be used to justify all these admitted failures to comply with the Court’s 

holding. 

F. THE DISTRICT CONTINUES TO USE “STANDARD ROOM SIZES” INSTEAD OF THE 

ACTUAL NUMBER AND SIZE OF CERTAIN FACILITIES. 

The Preliminary Offer chart on page 21 purports to list the average amount of actual space 

available on the comparison sites broken down into District designated functional categories. 

However, for “Boys/Girls Bathrooms” and for “Adult Bathrooms” the District only reports “1 

Set Each”. Not only does the District not report the square footage of these restrooms, but it also 

does not report the actual number of restrooms on each of its sites, instead just use a standard 

number and standard size in violation of the mandate from the Court. In addition, given the




Page 17 of 48 

other missing building space from the Preliminary Offer, the District is either using standard 

sizes for additional spaces or has failed to count certain space altogether. 

BCS could make good use of another set of bathrooms, but failing to count this and other actual 

building space also allows the District to fabricate an alleged “building space surplus” of 0.98 of 

one 960 sq. ft. portable in its allocation, which it then uses to established the alleged “qualitative 

superiority” of the Egan camp site. Such mathematical games are exactly what the Court of 

Appeals had in mind when it stated, “[t]his [the standard room sizes] procedure is inconsistent 

with the mandate of Proposition 39 that public school facilities ‘be shared fairly’ among all 

public school students, including those enrolled in charter schools.” Bullis at 1060. 

G. THE DISTRICT AGAIN FAILS TO SPECIFY SHARING ARRANGEMENTS AND TO 

PRO-RATE SHARED SPACE IN ITS EQUIVALENCY ANALYSIS. 

“The District’s methodology of ignoring space-sharing arrangements offered to Bullis in 

performing the reasonable equivalence analysis is the antithesis of a school district’s Proposition 

39 obligation…” Bullis at 1059. 

As discussed elsewhere herein, the District intends to impose a sharing arrangement on BCS’s 

use of the outdoor nonteaching space on the Egan camp site which has not been provided in the 

Preliminary Offer. The District has also provided a sharing arrangement on the Blach campus 

that is incomplete. 

The District’s allocation table regarding “Turfed Area” allocated to BCS assumes the entire 

baseball field and soccer patch field are available exclusively to BCS throughout its school day, 

which ends at 4:45 PM. If the District imposes any sharing restrictions on use of this or other 

space allocated to BCS during the BCS school day, the Court’s Opinion requires that the 

allocated space be pro-rated to reflect its limited use. The amount of space that would need to be 

allocated to be reasonably equivalent would need to increase to reflect the impact of any time of 

use restrictions imposed by the District. Please correct the tables in the Final Offer to reflect any 

sharing arrangements, and please provide the full specifics of the days and times when BCS will 

not have full exclusive use of the offered facilities. 

H. THE DISTRICT’S CLAIM THAT THE EGAN CAMP SITE IS SUFFICIENTLY 

“QUALITATIVELY SUPERIOR” TO THE COMPARISON SITES TO “NEUTRALIZE” 

THE SITE SIZE DISPARITY MISCONSTRUES THE COURT. 

In its effort to avoid acknowledging that the Egan camp site insufficient for BCS, the District’s 

latches on to a hypothetical discussed briefly by the Court. “The fact that a charter school 

receives a smaller facility … does not, by itself, warrant a finding that the charter school has not 

been provided reasonably equivalent facilities. Other factors, such as the overall relative 

condition of the facilities, size and number of buildings, etc. may result in the conclusion that the 

charter school was offered reasonably equivalent facilities, for example, because the site size 

discrepancy was neutralized by the charter school’s being offered facilities qualitatively superior 

to those of the comparison group schools.” Bullis at 1052 [Emphasis added].




Page 18 of 48 

The District again engages in mathematical wizardry to conclude that the Egan temporary site of 

portable buildings is sufficiently “qualitatively superior” to its own sites to “neutralize” the fact 

that the District cites are roughly twice the size. Given that the District spent roughly $120 

million dollars to remodel its own sites into admittedly state of the art facilities while having 

placed the portables at the Egan camp site merely to serve as temporary housing during the 

modernization of the District’s permanent site means that either the District wasted a huge 

amount of taxpayer funds or it is being totally disingenuous. 

The District concludes that BCS’s site is “good” and within reason because the Santa Clara 

County Office of Education (“the SCCOE”) states BCS facilities are “good.” This is not a 

comparison to the permanent, refurbished, “state of the art” conditions at all of the District’s 

sites. The portables on BCS’s site do not have near the natural lighting, the spaciousness, the 

noise insulation or amenities that the District’s permanent school sites enjoy. The BCS portables 

shake and make a lot of noise, which simply does not occur with permanent buildings; the 

walkways are not covered, so when it rains, everything gets soaked. That is not the case at the 

comparison sites that have huge amounts of covered walkways and lunch areas their students 

enjoy, with natural light and windows and sunroofs in the rooms. 

Furthermore, the “superiority” the District identifies that supposedly “neutralizes” the site size 

disparity is an extra 940 sq. ft. of building space that the District claims it has allocated. Once 

again, the District creates this alleged “surplus” by simply failing to count thousands of square 

feet of building space on its own sites because those buildings do not fit into its chosen subsets. 

Simply filling out the line in the table on page 21 of the Preliminary Offer for multi-purpose 

space shows that the District owes BCS 3,573.46 sq. ft. of such space, which by itself is almost 

four times the alleged “net surplus”. The buildings on the comparison sites used for childcare, 

special education and ELL rooms, and other missing space amount to far more space than this 

“net surplus”. 

In any case, the District again misconstrues the Court’s holding. It is the site overall, not a 

surplus in a single category of space, that must be sufficiently qualitatively superior to neutralize 

a site size disparity. The Court reviewed the Egan camp site and, not surprisingly, concluded it 

was insufficient despite evidence in the record from the District that certain rooms at the site are 

allegedly larger than certain rooms at the comparison sites. If the District still believes the Egan 

camp site is qualitatively superior, BCS would be happy to swap it for one of the District’s 

permanent sites within the Los Altos High School attendance area.




Page 19 of 48 

III. 

THE DISTRICT’S ENROLLMENT PROJECTIONS IMPROPERLY REDUCE THE 

SPACE IT PROVIDES TO BCS 

A. THE DISTRICT IMPERMISSIBLY SUBSTITUTES DISTRICT PROJECTIONS FOR 

INDIVIDUAL GRADE LEVELS IN PLACE OF THE CHARTER SCHOOL’S REASONABLE 

K-8 ENROLLMENT PROJECTION TO REDUCE THE FACILITIES ALLOCATION TO 

BCS. 

Education Code § 47614 (b)(2) describes three steps (discussed in turn below) regarding charter 

school projected enrollment and the allocation of facilities. 

1) STEP$ONE:$THE$CHARTER$SCHOOL$PROVIDES$AN$ENROLLMENT$PROJECTION$FOR$ITS$ 

PROGRAM.$ 

“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.” Ed. Code § 47614 (b)(2) 

Implementing Regulation § 11969.9(c)(1)(C) was clarified in its most recent revision to make 

clear that for operating charter schools like BCS for less documentation than BCS has already 

provided is required to support its enrollment projection. It states: 

“if relevant (i.e., when a charter school is not yet open or to the extent an operating charter 

school projects a substantial increase in in-district ADA), documentation of the number of indistrict 

students meaningfully interested in attending the charter school that is sufficient for the 

district to determine the reasonableness of the projection, but that need not be verifiable for 

precise arithmetical accuracy.” [Emphasis added]. 

The Department of Education explains in its Final Statement of Reasons that its intent was to 

“[a]mend to clarify that prior-year ADA, if any, will be the basis for facilities requests with 

adjustments for expected changes in enrollment, and to clarify that documentation of the 

number of in-district students meaningfully interested in attending the charter school is 

sufficient to determine the reasonableness of the projection though the documentation need 

not be verifiable for precise arithmetical accuracy.” [Emphasis added]. 

Nothing in the above language of the law refers to analysis of the precise accuracy of separate 

projections by individual grade level; nor does it permit the District to refute evidence of 

meaningful interest in attendance for the coming year by selectively extrapolating from 

projections in individual grade levels in prior years. 

Bullis is an operating charter school with a history of growth and success. BCS has provided the 

District with a well documented projection of 493 in-district K-8 students for 2012-2013, an 

increase of 13.8% over its total 2011-12 actual in-district enrollment. Given that BCS showed in 

its December 30, 2011 Response to District’s Objections that its in-District enrollment has grown




Page 20 of 48 

an average of 19% per year since 2004-2005, this is not an unusual or substantial increase under 

the Implementing Regulations. (BCS’s December 30, 2011 Response is attached as Exhibit A) 

Furthermore, Bullis’ December 30, 2011 letter fully responds to the projection objections raised 

by the District. In any case, BCS has provided far more documentation of its projected in-district 

students than necessary. The test is not whether a district’s or any other projection might be 

reasonable or more accurate, but merely whether the charter schools total projection of in-district 

ADA is reasonable. 

The District’s effort to examine each grade level projection independently is an example of the 

type of mathematical precision expressly not required by law. Included in BCS’ projection is a 

reasonable estimate of 40 7 th grade students and 14 8 th grade students. An example of the 

absurdity of the District’s position is its refusal to accept BCS’ 8 th grade portion of the projection 

(14) and insist on using its own counter projection (12). This is the type of mathematical 

precision that is clearly not required. 

Overall, the District uses its improper selective analysis by grade level to base its Preliminary 

Offer on a projection of 466 in-District students rather than the 493 reasonably projected by 

BCS. This projection difference of 27 students is just 5.5% of the total projected, and well 

within the normal variance anticipated by the Implementing Regulations. § 11969.8(a). Even if 

the full shortfall projected by the District materialized, space allocated based upon BCS’s 

reasonable projection of 493 would not be considered to have been over-allocated. Id. The 

District is required to accept BCS’s projection as a reasonable one and adjust its offer to allocate 

facilities accordingly. 

2) STEP$TWO$–THE$DISTRICT$MUST$MAKE$ITS$ALLOCATION$BASED$UPON$THE$CHARTER$ 

SCHOOL’S$AFFIRMED$ENROLLMENT$PROJECTION$FOR$ITS$ENTIRE$PROGRAM.$ 

“The district shall allocate facilities to the charter school for that following year based upon this 

projection” Ed. Code § 47614(b)(2) 

There is nothing optional here. The District is required to use BCS’s projection as long as it is a 

reasonable one. Again, the law refers to a single total enrollment projection not requiring 

mathematical precision. Whether the District thinks its projection is more accurate is irrelevant. 

Instead, the District uses its own undocumented separate projections by grade level, ignoring that 

the test is whether the overall enrollment projection for the entire charter school is reasonable, 

and ignoring the meaningful interest documentation that is itself sufficient to support the 

reasonableness of a projection under the law. 

The District claims BCS did not rebut the District’s counter-projection. This applies the wrong 

legal standard. The regulations presume the charter school’s projection is to be used in the 

analysis. The regulations expressly provide a monetary penalty against the charter school if its 

projection results in the District over-allocating facilities to the charter school. The District has 

turned the presumption on its head, wrongfully requiring the charter school to rebut the District’s




Page 21 of 48 

multiple grade level projections of BCS students., The District ignores BCS’s report that 31 of 

the BCS in-District 6th graders have expressed that they are “meaningfully interested” in 

returning to BCS’s 7th grade. The District likewise ignores BCS’s report that all current BCS 

7th graders expressed their intent to return to BCS’s 8th grade. And the District ignores BCS’s 

large in-district student waiting list, reports of success in its 7 th and 8 th grade classes likely to 

support additional enrollment, and the mandate of the law to consider only the reasonableness of 

the overall enrollment projection rather than to insist on mathematical precision in whichever 

subsets of enrollment the District finds most vulnerable to challenge. 

3) STEP$THREE$4$THE$DISTRICT$HAS$A$REMEDY$IF$THE$CHARTER$SCHOOL’S$ACTUAL$ 

ENROLLMENT$IS$SIGNIFICANTLY$BELOW$ITS$AFFIRMED$PROJECTION.$$ 

“If the charter school, during that following year, generates less average daily classroom 

attendance by in-district students than it projected, the charter school shall reimburse the 

district for the over-allocated space at rates to be set by the State Board of Education.” Ed. Code 

§ 47614(b)(2) [Emphasis added]. 

This is the sole remedy provided by law if a charter school reaffirms a documented projection 

that turns out to be inaccurate. Note that the sentence does not even allow for the possibility of 

the District overruling the charter school and using its own projection once the charter school has 

reaffirmed that projection. The charter school either adjusts its projection based upon the 

District objections (or implicitly agrees to do so by not responding to the District objections), or 

the charter school reaffirms its documented projection. In the latter case the charter school’s 

projection is used and the District has a statutory remedy should it prove substantially inaccurate. 

The language does not provide a remedy for the charter school if the charter school generates 

more average daily classroom attendance than the District’s counter projection, even though the 

harm to the charter school from being under allocated facilities is substantial. This is because the 

regulatory scheme simply does not allow a District to impose its counter projections once a 

charter school has reaffirmed its own projection as reasonable. 

Implementing Regulation § 11969.8(a) is instructive in considering the degree of precision 

required in a reasonable projection. It states that space is considered to be over-allocated to the 

charter school (and therefore subject to reimbursement under Ed. Code § 47614(b)(2)) only if 

the charter school over projected by an amount “greater than or equal to a threshold ADA 

amount of 25 ADA or 10 percent of projected in-district classroom ADA, whichever is greater.” 

Again, there is a single projection for the charter school, not multiple grade level projections to 

be considered. In this case 10 percent of BCS’s projection is 49.3 students, meaning that even if 

the District’s counter projection of 27 fewer students turns out to be more mathematically 

precise; BCS’s original projection would still be considered reasonable. 

The harm to a charter school from being offered inadequate facilities is often substantial and 

starts as soon as potential enrollees learn of the preliminary facilities offer. However, only the




Page 22 of 48 

District is provided a remedy for differences between the projection used in the facilities offer 

and the actual enrollment. This is because the charter school projection is the one that must be 

used once the charter school reaffirms it. 

B. BCS’S COUNTER-PROPOSAL ON THE ENROLLMENT PROJECTION TO BE USED IN 

THE FINAL OFFER. 

Even though it is already legally entitled to have its reasonable projection of 493 in-District 

students used as the basis for the facilities offer, in the interests of resolving this matter quickly 

for the benefit of its many families harmed by the severe under allocation of District facilities to 

BCS, BCS suggests the following as the framework for a negotiated agreement regarding the 

enrollment projection to be used as the basis for the District’s final offer of facilities for 2012- 

2013: 

1) The District agrees to use BCS’s projection of 493 K-8 in-District students as the basis 

for its facilities allocation in its final offer for 2012-2013, 

2) Should BCS’s actual enrollment turn out to be more than five percent (or 25 students) 

higher or lower than BCS’s reasonable projection of 493, then any existing sharing 

arrangements of District facilities will be adjusted to include more or less time for BCS 

students accordingly, 

3) This agreement would be for 2012-2013 only and neither side will claim it sets any 

precedent for the future, and 

4) The District will continue to have its remedy under §11969.8 for reimbursement for any 

over-allocation of space under that section that is not otherwise adjusted pursuant to this 

agreement. 

If the District is interested in negotiating an agreement based upon this framework regarding the 

enrollment projection to be used in the final offer, please contact us by March 15 to discuss 

mutually agreeable language for such an agreement. 

C. THE DISTRICT WRONGFULLY INFLATES ITS OWN ENROLLMENT PROJECTIONS 

THEREBY REDUCING THE SPACE ITS ANALYSIS ALLOCATES TO THE CHARTER 

SCHOOL STUDENTS. 

The District uses inflated class loading and student to classroom ratios in its comparison schools 

thereby reducing the number of classrooms and ADA square footage owed to the charter school. 

The class size loading estimates in the Preliminary Offer are significantly higher than Mr. 

Kenyon reported in his 2/6/2012 Financial Update to the LASD school board as the status quo. 

Both documents were released by the District during the same week. The ratios in the 

Preliminary Offer are also higher than those the District actually had for the 2011-12 school year. 

Below are the ratios, provided in the two documents:




Page 23 of 48 

Grade Level 2012-13 Preliminary 

Offer 11 

District Financial Report 

2/6/2012 

K 32.2:1 23:1 

Grade 1-3 24.3:1 23:1 

Grade 4-6 28.4:1 27:1 

Grade 7-8 34.1:1 26:1 

BCS recognizes that there are some differences between classroom loading and the 

student/teacher ratio in kindergarten and junior highs that make comparisons in these grades not 

completely clear. In Grades 1-6; however, the class size loading and the classroom loading are 

exactly the same. In Mr. Kenyon’s financial report, it shows that additional teachers would be 

hired to support any increase in student enrollment. In the Preliminary Offer, each school shows 

the same number of classrooms as is currently on the site thus saying that all projected new 

students will be serviced in the existing classrooms. These two documents are clearly not 

consistent with each other. 

LASD Board Member Doug Smith reported on February 16, 2012 that the District has not yet 

made a decision about changing class size loading for the 2012-13 school year. Based on the 

statements of the District and their own financial reports, there is no evidence that they are 

planning on increasing class size loading; however, for purposes of the Preliminary Offer, they 

have shown larger class sizes, thus reducing the classroom space owed to BCS. 

The District’s claim that they are going to keep the same number of classrooms on each campus 

despite their projected increase in students also doesn’t make sense considering progression of 

student cohorts. For example, Gardner currently has one 6 th grade class and two classes in 

grades 1-5. It seems unlikely that the District is going to continue to have only 13 classes at 

Gardner when they will have enough students next year for two 6 th grade classes. The District 

has made no indication that they plan to start combination classes at Gardner or reduce the 

number of classes in any of the other grades. 

Also, the District claims in Resolution 11/12-10 that it expects 2012-2013 enrollment of 3,516 

students in K-6 and 1,023 middle school students, when the District’s own demographers project 

a decline, not an increase in District enrollment. The District acknowledges the anticipated 

decline in enrollment in its June 30, 2011 financial report for 2011-2012. On page 110, the 

District’s financial statement states: 

“Over the last ten years enrollment has grown an average of 1% per year. The district’s 

enrollment is expected to decline slightly starting in 2012.” LASD Financial Budget pp. 18, 37. 

11 The Preliminary Offer indicates different class size loading in various parts of the document. The ratios shown in 

Exhibit D that are used to compute “Space Calculated for Charter School in-District Enrollment” appear to be the 

one used in allocating space to BCS and therefore are shown here.




Page 24 of 48 

Yet, for purposes of Prop 39, the District projects increases in students, contradicting its own 

prior statements and its own demographer’s findings. In the Preliminary Offer, in an effort to 

inflate the students at the District to decrease the ADA square footage ratio, the District projects 

growth of 53 students. The District’s demographer has indicated that the medium projection is 

the most likely projection to be accurate. The demographer has indicated the high end projection 

is much less likely than the medium projection. For Proposition 39, purposes, the District has 

not chosen to use the medium projection, but instead has chosen a number greater than the 

medium projection. Higher projections of District enrollment than justified in the Preliminary 

Offer deprive the charter school children of reasonably equivalent facilities. 

By overinflating the number of District students projected for 2012-13, the District also justifies 

its claim that if it provides BCS with a District site, the other District sites will be over capacity 

(in excess of 600 students), when in reality the sites will not be in excess of 589 students, even 

using the District’s high projected numbers. The District now claims that it needs to provide 

room for more growth at each of the sites than its own demographer projects is needed, somehow 

claiming this justifies denying existing BCS in-District students a their fair share of District 

facilities. 

Furthermore, the District has 129 out-of-district students attending District schools this year. 

Those out-of-district students’ needs should not be placed ahead of BCS’s in-District students in 

the allocation of facilities. 

IV. 

THE DISTRICT MAY NOT IMPOSE ITS CHOSEN GRADE CONFIGURATION ON 

BCS 

A. CHARTER SCHOOLS HAVE THE RIGHT TO OPERATE IN A GRADE 

CONFIGURATION APPROVED IN THEIR CHARTER REGARDLESS OF THE GRADE 

CONFIGURATION OF THEIR HOST DISTRICT. 

BCS’s chartering authority, the Santa Clara County Board of Education (“County Board”), has 

authorized BCS to operate as a single K-8 charter school. The Implementing Regulations 

clearly anticipate that charter schools may have different grade configurations than their host 

school districts. §11969.3(a). The District may not impose its chosen grade configuration on 

BCS by splitting its facilities onto a “K-6” site and a “7-8” site and attempting to dictate which 

students may be on each site. 

As the Court of Appeal recently found, “[t]hus, the amended language of Regulations, section 

11969.3(a)(1) is intended to offer a practical solution to the situation where there is no directly 

applicable comparison district school for the grade level configuration of the charter school. In 

such a situation, it directs a school district to provide facilities to the charter school on an 

existing district school site that is most consistent with the needs of students in the grade levels 

served at the charter school….In directing the district to provide the charter school facilities at an 

existing district facility, the regulation does no more than recognize the contiguity requirement of




Page 25 of 48 

section 47614, as previously discussed.” California School Boards Association v. State Board of 

Education, 191 Cal. App. 4th 530 (2010) (italics added). 

In Ridgecrest the charter school sought facilities for 223 students in a K-8 school, 75 of who 

were in grades 7 and 8. The District asserted that the charter school’s “…elementary and middle 

school students cannot be accommodated at the same school site, i.e., because they would be 

assigned to different sites if enrolled in district-run schools,” and because the facilities at district 

middle schools differed from those at the district elementary schools. Ridgecrest at 999 fn 15. 

Still the Ridgecrest Court found that “[w]e have little doubt that accommodating [the charter 

school’s] facilities request will cause some, if not considerable, disruption and dislocation among 

the District’s students, staff, and programs”, but “[t]he District failed, in other words, to 

demonstrate …that it could not accommodate [the charter school] at a single school site…in a 

manner consistent with the intent of the Act. This was an abuse of discretion.” Id. at 1006. 

B. THE DISTRICT’S PURPORTED GRADE LEVEL RESTRICTIONS BY SITE VIOLATE 

BCS’S RIGHT TO RUN AN INTEGRATED K-8 PROGRAM. 

When the County Board granted BCS the right to expand its program to include 7 th and 8 th grade 

students, the District objected on multiple grounds including facilities concerns and the District’s 

different grade level configuration. Those objections were considered at length by the County 

Board and rejected. The District now impermissibly seeks to interfere with BCS’s approved 

right to run an integrated K-8 educational program. 

The District’s Preliminary Offer seeks to prohibit BCS’s K-6 students from using the facilities 

offered at Blach and BCS’s 7th or 8th grade students from using the facilities offered at the Egan 

camp site. These District rules violate BCS’s right to operate as an integrated K-8 school. 

BCS already houses 7 th and 8 th grade students on the Egan camp site with its K-6 students. 

These students interact together across grade levels in multiple activities. They have assemblies 

together, attend concerts and plays together, have recess together, etc. Both through planned 

activities and informally, older students are taught to serve as role models for younger children. 

At BCS, Leadership is nurtured and taught in a variety of ways. 7 th and 8 th grade students are 

taught the process of Leadership and provided numerous and varied opportunities in which to 

practice it. 7th and 8th grade students participate in student government, organize and lead 

activities for younger students (multi-grade school house activities, demonstrations for younger 

students, etc.), work together to solve campus concerns, and even take on the challenge of 

instructing their younger peers. Older students also model the character pillar behavior taught at 

BCS. Younger children often learn differently and sometimes more readily from older students 

than from adults. In addition, teachers from all grade levels serve as advisors with regular 

meetings for 7th and 8 th grade students, which would be impractical if they were not located on 

the same campus. 

It is not possible to run a program in a different grade configuration from the District if students 

from the different grades are not allowed to interact. BCS’s cross-utilization of teachers, staff,




Page 26 of 48 

programs and pedagogy across all grade levels would also be frustrated. This cross-utilization is 

an essential part of the BCS program that not only allows it to efficiently offer a richer program 

to its students, but creates critical and lasting bonds between teachers and students across all 

grades. 

The District’s restrictions would force BCS to run two separate programs that mirror separate 

District programs: a K-6 program at one site and a 7 th and 8 th grade program at a second site 

across town. They would prevent BCS from continuing an important differentiator of its 

educational program from the District’s programs. One important reason Proposition 39 elevates 

the requirement of contiguity for charter schools above the disruption a school district might 

experience from moving district students is because the law recognizes that a charter school 

seeking a single site runs a single unique educational program. Splitting such a charter school 

onto multiple sites is not only disruptive for individual students but deeply disrupts the delivery 

of the charter program itself to all its students. By contrast, when a district moves students from 

one district school to another similar school (as occurs often), the programs at the schools remain 

intact and are not similarly disrupted. 

C. THE DISTRICT’S FINDINGS CONCERNING ITS PREFERRED GRADE 

CONFIGURATION ARE IRRELEVANT TO ITS FACILITIES OBLIGATION. 

The District purports to make a series of self-serving findings in its Resolution in Support of the 

Preliminary Offer alleging that “Because of the educational, developmental and other advantages 

that exist by separating younger, pre-adolescent students from adolescent students, in its best 

judgment, the District cannot offer BCS a reasonably equivalent facility without separating 

BCS’s 7 th and 8 th grade students from its kindergarten through 6 th grade students.” This 

argument was not only rejected by the Court of Appeal in the Ridgecrest and California School 

Board cases discussed above, but by the District itself in last year’s offer. In its final offer of 

facilities for 2011-12, the District projected almost twice as many BCS 7th and 8 th grade students 

as it does for next year, but “determined that BCS’s current location at Egan, which is adjacent to 

Egan Jr. High School, is the facility that is most consistent with the needs of BCS’s K-8 student 

population.” For the second straight year it placed BCS 7 th and 8 th grade students on the same 

campus with BCS K-6 students. 

There are of course numerous studies discussing the benefits of various grade configurations 

including the K-8 integrated model, but they are entirely irrelevant to the District’s obligation to 

provide facilities to BCS allowing it to operate independently in its chosen grade configuration. 

The District’s alleged sudden concern about student safety on K-8 campuses is a transparent 

attempt to latch on to and twist regulatory language intended to benefit charter students. See 

§11969.2(d). One would think any findings about alleged safety concerns would have been more 

appropriate years ago before the District had seen BCS’s integrated K-8 program safely in 

operation. There is no explanation for why housing BCS’s 7th and 8 th grade students at the same 

site as BCS’s K-6 students has become a sudden problem this year after two years of directly 

contradictory District findings. The idea that BCS 7 th and 8 th grade students cannot be housed




Page 27 of 48 

safely with BCS K-6 students, while over 500 7 th and 8 th grade students from a sometimes hostile 

District program reside on the immediately adjacent Egan Jr. High site is patently absurd. There 

are no physical barriers between the Egan Jr. High site and BCS which together share the greater 

Egan campus. In addition, the District is again imposing a sharing arrangement that explicitly 

requires that Egan middle school students have access to part of the BCS campus during the 

school day when K-6 students are present. 

Rather than a sudden realization that its findings from last year were wrong, this year’s District 

findings, together with the District’s under projection for BCS’s 7th and 8 th grade enrollment, 

appears to be yet another unfortunate effort to undermine BCS’s grade level expansion that the 

District aggressively opposed from the start. BCS is entitled to run its chosen grade 

configuration on a contiguous site regardless of the District’s grade configuration. 

V. THE DISTRICT MUST PROVIDE A SINGLE CONTIGUOUS SITE TO BCS 

A. THE DISTRICT’S ANALYSIS DOES NOT START WITH THE REQUIRED 

PRESUMPTION OF PROVIDING BCS WITH A CONTIGUOUS CAMPUS AS REQUIRED 

BY RIDGECREST. 

The law requires the District to start with the presumption that all charter students will be 

assigned a single site, and attempt from there to adjust other factors to accommodate this goal. 

The District failed to do so, and offered no analysis other than its “findings” concluding that no 

single site or adjacent sites meets the “needs” of the BCS. Even if the District had made the 

proper analysis and still concluded that there was no one site large enough to house BCS’s K-8 

school, the contiguity requirement results in LASD having no choice but to house BCS’s 7 th and 

8 th grade students on the Egan campus, not the Blach campus, because Egan is adjacent to BCS’s 

existing site and has sufficient capacity. 

Under Proposition 39, the only basis for making a non-contiguous allocation of space is a 

determination by the District Board that BCS’ program cannot be accommodated on any single 

school district school site. (5 CCR Section 11969.2(d).) The Court in Ridgecrest noted that “all 

else being equal, a charter school should be housed at a single site if one exists with the capacity 

to handle all the school’s students.” (Ridgecrest Charter School v. Sierra Sands Unified School 

Dist., 130 Cal. App. 4th 986, 1000 (Cal. App. 5th Dist. 2005) (emphasis added).) 

Contiguous is defined as facilities that, “are contained on the school site or immediately adjacent 

to the school site.” § 11969.2(d). The express provisions of Proposition 39 require that the 

District allocate facilities to the Charter School that are “contiguous, furnished, and equipped.” 

(Ed. Code Section 47614(b).) This requirement exists irrespective of the grade level 

configuration of a charter school. (5 CCR Section 11969.3(a).) 

In California School Boards Association v. State Board of Education (2010) 191 Cal. App. 4th 

530, the Court stated:




Page 28 of 48 

“We agree with the court in Ridgecrest, supra, 130 Cal.App.4th 986, that "[t]here is, 

plainly, some tension between the 'shared fairly' and 'reasonably equivalent' requirements 

in section 47614 on the one hand, and the 'contiguous' requirement on the other. The first 

two suppose a balancing of all the factors--educational, logistical, financial, legal, and 

practical--that ordinarily go into deciding how to assign students among the various 

schools within a district (giving equal consideration to the 'district' and charter school 

students). The third requirement, contiguity, supposes that all charter school students 

must first be assigned to the same site (assuming one exists large enough to house them 

all) before any consideration may be given to the other factors. These two extremes 

correspond roughly to the positions staked out by the parties in this case. We believe the 

answer lies somewhere in between, albeit toward the contiguity end of the scale. That is, 

at the risk of seeming to oversimplify a difficult and complex process, we think it must at 

least begin with the assumption that all charter school students will be assigned to a 

single site, and attempt from there to adjust the other factors to accommodate this 

goal." [Emphasis Added.] (Id. at p. 1002.) CSBA v. State Board of Education, 191 

Cal.App.4th 530 at p. 549. Contrary to the assertion of the School District Associations, 

the definition of "contiguous" in Regulations, section 11969.2(d) does not prevent the 

consideration of grade level factors relevant to providing reasonably equivalent facilities 

and there is no reason to conclude on this facial challenge to the regulation that it is 

impossible or illogical for a district to provide "reasonably equivalent" (§ 47614, subd. 

(b), italics added) facilities at a single site for a charter school with a broader range of 

grade levels than the traditional schools in the district.” 

Just as contemplated in the regulations and further articulated in Ridgecrest and CBSA, it is not 

impossible for a charter school with a broader range of grade levels (K-8) than the traditional 

schools in the district (K-6) to be provided facilities at a single site; yet, that is exactly the 

immediate and unsupported conclusion the District in this case took. Their analysis is missing, 

incomplete at best, and inaccurate. 

The District must start with the assumption that it will place BCS on a single site, not with the 

assumption that it will place BCS only on spaces not currently used by District programs. Instead 

of starting with the presumption of putting BCS on a single site or adjacent sites with the 

capacity to hold all its students, the District begins its Preliminary Offer with an irrelevant 

analysis by first breaking BCS’s student population into a K-6 group and a 7-8th grade group to 

determine which high school attendance areas a majority of those subgroups attend. 

(Preliminary Offer at 1-4.) This approach is not supported by the regulations and is an effort to 

try to justify the move of the BCS 7th and 8th grade students to Blach (in the Mountain View 

High School attendance area). Regardless of grade configuration, there is only a single relevant 

high school attendance area for a charter school under §11969.3(a). It is “the high school 

attendance area…in which the largest number of students of the [entire] charter school reside”, 

not some grade level subset. Id.




Page 29 of 48 

The District made a series of self-serving findings regarding the undesirability and perceived 

unfairness of disrupting any District programs or students on any of its existing sites other than 

the Egan camp site, all of which (as shown below) are large enough to house BCS’ entire 

projected enrollment of 493 K-8 students 

The Final Statement of Reasons regarding the regulations specifically acknowledges that districts 

should be considering “moving district-operated programs or changing attendance areas. Plainly 

then, the regulations contemplate that some disruption and dislocation of the students and 

programs in a district may be necessary to fairly accommodate a charter school's request for 

facilities.” (Ridgecrest, 130 Cal. App. 4th at 1000.) 

The District here has not considered this possibility at all, but rather dismissed it out of hand 

because the District opines that it might make some of its school sites larger than 600 students, 

an artificially imposed preference. The District’s findings improperly rule out any significant 

moving or consolidating of District-operated programs, shifting of the substantial number of 

intra-district and out-of-district students attending District schools, changing of attendance areas, 

swapping of a District program’s site with the smaller site housing BCS, having two District 

programs share one of the District’s larger sites by sharing field space at staggered times 12 , 

changing District grade configurations, or adjusting the size of its middle school campuses. Any 

one or a combination of these options could, if properly implemented, provide BCS with a 

contiguous reasonably equivalent site of roughly 10 acres or more. 

As an example of how this failure to think broadly about its options unfairly limits BCS’ rights 

to reasonably equivalent facilities, the District claims in its resolution that by closing one school 

site to allocate it to BCS, all of its District schools would then be forced to enroll over 600 

students. However, this is patently false. A review of the projected enrollment for all nine of the 

District’s comparison schools shows that in fact adjusting attendance areas for the District’s 

schools would allow all of the schools to remain at approximately 600, while also providing a 

school site for BCS: 

The District currently has 544 available seats spread between all of the comparison elementary 

schools. As a result, the District has the capacity to allocate one District elementary school to 

BCS (which has a projected ADA of 493), and move the District’s students from that school to 

the other District elementary schools, while still keeping each District school at approximately its 

artificial 600 student cap. The District has additional capacity on its middle school sites, and 

could consider moving 6 th grade students to the middle schools like many neighboring Districts 

have done. This does not even consider the fact that approximately 3% of District students are 

“out-of-district” and those out-of-district students enjoy facilities BCS’s in-District students have 

been denied for nearly a decade. 

12 Currently only BCS and Egan Jr. High share space. Sharing between the charter school and the District run Egan 

Junior High has been difficult to implement. There is little doubt two District-run programs would share space 

much more effectively than a District program and a charter school program.




Page 30 of 48 

B. ANY ONE OF THE DISTRICT’S PERMANENT SCHOOL SITES HAS THE CAPACITY 

TO ACCOMMODATE THE BCS K-8 SCHOOL; THUS, THE DISTRICT MAY NOT 

PLACE BCS ON MULTIPLE NON-ADJACENT SITES. 

The District does not have a K-8 school, but instead has seven K-6 schools and two middle 

schools for grades 7 and 8. In fact, every District K-6 school site is roughly 10 acres or larger 

except the 6.23 acres temporary Egan camp site where BCS currently sits. Each of the District’s 

K-6 sites can accommodate more than 600 students. In fact, with additional portables placed on 

its campuses, the District has found that even excluding the new Gardner-Bullis school, the 

District’s other six K-6 campuses can collectively house 3,773 students, an average of 629 

students per campus. (CACF Bullis Site Use & BCS Location Study, Appendix B, dated 

5/30/2006) (Attached as Exhibit B, see page 35). Also the District recognizes in its recitals to its 

Resolution 11/12-10, that each site can maintain at least 600 students. All the District’s 

permanent sites therefore have the capacity (in some cases with additional portables) to house the 

entire 493 projected BCS K-8 in-district students for 2012-2013, let alone the 466 that the 

District has improperly based this offer on. 

Ridgecrest is instructive where it states, “Referring to the regulation allowing “contiguous 

facilities” to be located at more than one school site (5 CCR, § 11969.2, subd. (d)), the 

Department explained: “The main purpose of subdivision (d) is to provide guidance in the 

situation where no single school site operated by a school district is large enough to 

accommodate the charter school.” (Italics added.) This suggests that, all else being equal, a 

charter school should be housed at a single site if one exists with the capacity to handle all the 

school’s students. Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 

Cal.App.4th 986 [30 Cal. Rptr. 3d 648] (Ridgecrest). Ridgecrest similarly concerned a K-8 

charter in a district that did not share that grade configuration. Where, as in the District, every 

district school site except the temporary one allocated is large enough to house a charter program 

on a single site, Ridgecrest’s standard has not been met. 

In support of its non-contiguous offer, the District Board adopted a 22-page resolution 

(Resolution 11/12-10) discussing such issues as whether K-8 school sites are in the best interests 

of students and the District’s preference for keeping its school sites under 600 students. The 

resolution does not, however, actually provide any information as to why BCS “could not be 

accommodated at a single site” (5 CCR Section 11969.2(d)) and thus the District’s offer is in 

violation of Proposition 39. On February 16, 2012, BCS met with the District to review and 

obtain information about the District’s Preliminary Offer. During that meeting the District 

confirmed that there were no “feasibility studies” or reports or other documentation to support 

the District’s assertion that the District assessed all the options. Rather these conclusions were 

apparently made during closed session Board Meetings only and no documentation of a study or 

report exists. 

The District refuses to follow Ridgecrest or the Court of Appeal's decision in California School 

Bds. Assn. v. State Bd. of Education, 191 Cal. App. 4th 530, 549 (Cal. App. 3d Dist. 2010) that




Page 31 of 48 

specifically acknowledged that a K-8 configuration on an elementary or middle school campus 

could still be consistent with the requirements of Proposition 39: 

“The term “reasonably equivalent” is broad enough to encompass many situations. For 

example, if the number of students in a charter school with a K through 8 or K through 12 

educational program can be accommodated on an elementary school site within the school 

district, the district may bring appropriate furniture and other middle school and/or high 

school appropriate equipment onto the elementary school site for the older charter 

students’ use. …” 

Because any one of the District’s seven K-6 sites and two middle school sites is of sufficient size 

to house BCS’s K-8 program, the District ignores this analysis and instead superficially 

addresses the “needs” or functionality of the facilities requested by BCS in an attempt to 

circumvent its obligation to analyze whether any the District site is large enough to hold BCS’s 

K-8 school. 

After refusing to address the capacity analysis, and after seeking to split BCS’s student 

population into a K-6 and a 7th and 8th grade grouping, the District then asserts that because no 

one K-6 site owned by the District has middle school facilities that functionally meet the needs 

of BCS’s 7th and 8th grade students, and that no one site has precisely all the functionalities 

requested in BCS’s Facilities Request, there is no one site to accommodate BCS. In so doing, 

the District twists Ridgecrest to mean something completely different, looking only to whether a 

school site has all the functional needs. Of course, it would be rare for any one school site to 

meet the functional needs of a charter school without any modification if it has a different grade 

configuration. This was specifically contemplated in the regulations thereby stating that the 

District is not then required to build new facilities at a site with capacity to meet all the 

functional needs, but the charter school may do so at its own expense. 5 CCR Section 

11969.3(a)(4) 13 . 

Based on this flawed interpretation of the regulations and Ridgecrest, the District then claims 

that because no one site precisely meets the needs of BCS’s K-8 program, it cannot meet the 

“contiguous” requirement under Ridgecrest and the regulations and therefore it must move BCS 

7 th and 8 th grade students and isolate those BCS students across town, at Blach Middle School. 

Yet, a middle school with the needed facilities currently used by the BCS 7th and 8th grade 

students currently sits contiguous to BCS at the Egan Middle School. 

13 Section 11969.3(a)(4) states: Although the district is not obligated to pay for the modification of 

an existing school site to accommodate the charter school's grade level configuration, 

nothing in this article shall preclude the district from entering into an agreement with the 

charter school to modify an existing school site, with the costs of the modifications being 

paid exclusively by the charter school or by the school district, or paid jointly by the district 

and the charter school.




Page 32 of 48 

As BCS has previously stated in its original Proposition 39 request for facilities, dated October 

31, 2011, under 5 CCR Section 11969.3(a)(1), BCS believes that any one of the District’s 

existing 10-acre K-6 school sites in the Los Altos High School attendance area would qualify as 

“an existing facility that is most consistent with the needs of students in the grade levels served 

at the charter school,” and therefore would meet the District’s obligation under Proposition 39 

requirements to allocate a contiguous site to BCS, even if the District would then not be able to 

provide onsite certain of the specific facilities that the District presently provides only at its 

junior high campuses. We also note that under 5 CCR Section 11969.3(a)(1) and (4) the District 

is explicitly relieved from any obligation to pay for the modification of an existing K-6 school 

site to accommodate BCS’s different grade level configuration. 

BCS believes that any existing District school site feeding into Los Altos High School would be 

suited in terms of physical capacity for use by BCS during the 2012-13 school year. The majority 

of BCS’ students are in the elementary grades, and thus an elementary school site, with its 

attendant K-6 facilities, would be most consistent with the needs of all of BCS’ students. 

C. IF THE DISTRICT PLACES BCS’S K-6 STUDENTS ON THE EGAN SITE THEN THE 

DISTRICT MUST ALSO EXPAND THE SITE FOR BCS’S EXCLUSIVE USE AND 

PROVIDE FACILITIES FOR BCS’S 7 TH AND 8 TH 

GRADE STUDENTS AT EGAN. 

Even if one were to assume, for the sake of argument, that none of the seven K-6 sites were large 

enough to accommodate BCS’s K-8 program, if the District insists on keeping BCS at its current 

site, it must 1) expand BCS’s exclusive use of the Egan campus (see infra) and 2) provide BCS 

with a contiguous site by offering facilities for BCS’s 7 TH and 8 TH grade students at the Egan 

Middle School in order to comply with 5 CCR Section 11969.3(a)(1). 

1) THE$DISTRICT$MAY$NOT$MOVE$BCS’$7TH$AND$8TH$GRADES$UNNECESSARILY.$ 

! 

Pursuant to Education Code Section 47614(b), “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.” (Emphasis added.) 

None of the District’s schools, including the comparison schools, are split across two campuses – 

all are housed on a single school site. Of course district programs do not work that way. School 

districts have the ability to change their attendance boundaries and move students to another 

district program. They are not left with a single program operating across multiple sites. By 

contrast, when charter students are moved to another site, the charter school program must be 

operated across two sites causing substantial disruption. The further apart the sites are the more 

disruption to the charter program. This difference is why charter schools are required to be given 

a contiguous site if at all possible. The District’s non-contiguous offer, if implemented, will 

create substantial operational difficulties, as it will require BCS to operate a single school on two 

campuses, and duplicate its administration, supervision, equipment, and other items at each site.




Page 33 of 48 

The Egan Jr. High School campus (which currently operates with BCS’s kindergarten through 

eighth grade programs within its boundaries) may be reconfigured to provide more space to 

BCS. Yet the District’s Board Resolution made no mention of this option. Instead, the District 

concluded that the only option for a facilities allocation that existed was a non-contiguous offer 

placing one classroom of BCS students in the center of a large District middle school, on the 

other side of the District from the K-6 program. 

Yet, the District previously conceded that the Egan Middle School campus, which is contiguous 

to BCS, is the most appropriate site because of its proximity to middle school facilities. In the 

District’s Final Offer last year (2011-2012), the District states on page 4 of 16, the following: 

“[T]he District has determined that BCS’s current location [the Egan camp site] is most 

consistent with the needs of BCS’s K-8 student population, given the proximity of middle 

school physical education facilities.” 

On page 5 of 16 of the 2011-2012 Final Offer, the District again states: 

“[T]he District has determined that BCS’s current location at Egan, which is adjacent to 

Egan Jr. High School, is the facility that is most consistent with the needs of BCS’s K-8 

student population.” 

The District made those findings when it projected placing 49 in-District BCS 7 th and 8 th on the 

site, and was projecting an Egan enrollment of 549, for a total of 598 7 th and 8 th grade students 

on the greater Egan campus. With the District’s low projection of 27 BCS 7 th and 8 th grade 

students, the total combined with the District’s projection of 559 Egan students is only 586. The 

District’s findings are entirely inconsistent and self-serving. Using BCS’s reasonable projection 

of 54 7 th and 8 th grade students, the total would still only be slightly above the admitted current 

capacity of 600 at Egan. The disruption to accommodate BCS on a contiguous campus would 

therefore be minimal, involving moving a small number of students who do not even live in the 

Egan attendance area to the Blach middle school, or simply adding a few portable buildings to 

add capacity. 

Instead, the District, proposes to split BCS and severely disrupt its program and to isolate a few 

BCS students at another campus. The District completely omits its analysis and contradicts the 

District’s previous assertions that BCS is best served at the Egan camp site because of its 

proximity to Egan. This contradiction and omission violates the requirements to make a good 

faith offer and is an abuse of discretion in failing to demonstrate that the District cannot 

accommodate BCS at the Egan Middle School campus. Ridgecrest at p. 1006. 

The Egan Jr. High has an admitted capacity of 600 students without additional portables. The 

District has projected 559 students at Egan next year. The 27 BCS 7th and 8 th grade students the 

District is projecting can be accommodated on the Egan Jr. High site, especially if additional 

portables are added. Since Egan is adjacent to BCS’s existing site, the District, clearly violates




Page 34 of 48 

§11969.2(d) by refusing BCS’s 7th and 8 th grade students access and shared use of the adjacent 

Egan Jr. High facilities. The Egan camp site, if sufficiently expanded for BCS’s exclusive use, 

with additional buildings and acreage from the adjacent Egan campus, could also house the 

entire BCS population on a single site. 

Even using BCS’s projection of 54 in-District 7th and 8 th grade students, as the District is legally 

required to do; there is sufficient room on the adjacent Egan Jr. High site for 54 more students 

with minimal disruption to the District. The District can either expand capacity on the roughly 

13 acres housing Egan Jr. High by adding portables, transfer students to its Blach middle school, 

or both. The District has continued to take intradistrict transfer students into Egan even when it 

has projected enrollment of as high as 571 students in the past. 14 This behavior belies the 

assertion that the Egan Jr. High does not have room for the relatively small number of BCS 

middle school students. 

In previous years the District found the current camp site to be the location “most consistent” 

with the needs of BCS precisely because of its proximity to Egan. Last year the District insisted 

that BCS 7th and 8th graders must be housed at BCS and share certain facilities at Egan. 

Although the District consistently violated the terms of the sharing arrangement, disrupting 

BCS’s 7 th and 8 th grade programs on numerous occasions and denying access to certain facilities 

altogether, the Egan middle school has ample facilities that if properly shared with BCS, could 

satisfy the District’s Proposition 39 obligations. LASD has a history of unwillingness to do so 

and now appears incapable of doing so. Nevertheless, if certain Egan facilities were given to 

BCS’s K-8 programs and others were shared not only with BCS’s K-8, but specialized teaching 

space for BCS’s 7 th and 8 th graders were shared equitably as well, there is a possibility the Egan 

site could house both BCS’s K-8 programs and the Egan middle school. By expanding BCS’s 

exclusive use of facilities (including one of the two gymnasiums at Egan,) as well as other field, 

track and open space where additional portables could be added to the site for BCS’s K-8; and if 

other middle school facilities such as woodshop, science labs, locker rooms and additional 

specialized teaching space were shared with the BCS 7 th and 8 th grade students, it may be 

possible to meet Prop 39 obligations if the sharing arrangement were fair and LASD complied 

with said sharing arrangements. 

The District’s Preliminary Offer estimates that Egan’s enrollment for the 2012-2013 school year 

will be 559 students. The materials attached to the District’s Preliminary Offer states that there 

are 18 classrooms on the Egan campus. Based on the 34:1 average teaching station to ADA ratio 

stated in Exhibit D of the District’s Preliminary Offer, Egan will have at least one teaching 

station left over after accommodating its students (it will need 16.44 teaching stations). As the 

14 According to a February 28, 2012 email from Mr. Kenyon, the Egan Junior High currently serves 9 out-of -district 

students and 79 students from the Blach attendance area, amounting to roughly 16% of Egan’s current total 

enrollment. The disruption from sending some of these students back to their home schools, if truly necessary, in 

order to make room for BCS in-District students (who largely reside within the Egan attendance area) to be on a 

campus adjacent to the Egan camp site would seem to be well within the level of disruption a District must accept if 

necessary to provide a charter school with a contiguous site.




Page 35 of 48 

District has only allocated one teaching station to BCS in its offer, it could have made a 

contiguous offer of space for BCS on the Egan campus that allocated the leftover teaching 

station. Of course, to provide reasonable equivalence substantial additional access to space 

would be required, but this can be done at Egan just as well or better than at Blach. 

The District’s Preliminary Offer estimates that Blach’s enrollment for the 2012-2013 school year 

will be 464 students. The materials attached to the District’s Preliminary Offer states that there 

are 14 classrooms on the Blach campus. Based on the 34:1 average teaching station to ADA ratio 

stated in Exhibit D of the District’s Preliminary Offer, Blach will have to use all of its teaching 

stations to accommodate its students (it will need 13.65 teaching stations). 

Moreover, the District’s Preliminary Offer at Blach allocates only one additional classroom to 

BCS for use as a computer lab, small group instruction, art/music space, video production, RSP, 

administrative space, a teacher work room, teacher lounge, custodial and storage space, PTA 

space, counseling space, and PE locker rooms; these functions could be shared with the Egan 

campus, through a shared use arrangement both with Egan Jr. High School.. Lastly, as the 

District has projected an ADA of 27 for BCS’ 7th and 8th grade, this would not increase the 

Egan enrollment over the artificial 600 school site size cap to which the District has committed 

itself. 

2) IT$IS$A$GREATER$THREAT$TO$STUDENT$SAFETY$TO$PLACE$27454$BCS$7TH$AND$8TH$ 

GRADE$STUDENTS$IN$ONE$CLASSROOM$IN$THE$MIDDLE$OF$THE$BLACH$CAMPUS$THEN$TO$ 

PLACE$THESE$STUDENTS$AT$EGAN$WITH$THE$REST$OF$THEIR$COMMUNITY.$ 

It is instructive to review §11969.2(d) carefully to understand its intent regarding student safety. 

Under this section, the school district is instructed to give special consideration to student safety 

only if a single school site or immediately adjacent school site to accommodate the entire charter 

school cannot be found. In other words, if the charter school must be accommodated on multiple 

sites separated from each other, then the section instructs the school district to consider student 

safety in the location of those multiple sites for the benefit of charter students traveling between 

the sites. The District attempts to twist this provision into a justification for avoiding offering a 

contiguous site even if one is otherwise available. 

The District’s Board Resolution appears to be take the position that, because it believes a 

student’s “academic need, safety, social development and emotional development” benefit from 

separate elementary school and middle school campuses, BCS middle school students will be 

safer on the Blach campus and BCS K-6 students will be safer without having BCS 7 th and 8 th 

graders on the Egan campus. The District cites certain limited research studies in support of its 

argument. However, BCS asserts that it is the District’s Preliminary Offer which presents a 

threat to student safety. 

Specifically, the District has projected an ADA of 27 for BCS’ 7th and 8th grades, and has 

allocated them 1 teaching station and one administrative space on the Blach campus, which has a




Page 36 of 48 

current enrollment of 464. In other words, BCS students will make up 6% of the student 

population on the Blach campus, and are offered very limited access to the rest of the campus. 

They will be forced to move from their current home to a new site, far away from their friends 

and families. Parents will be required to drive siblings to two different locations, and will 

require further transportation by student service providers such as special education providers, 

food program providers, nurses, and counselors etc. This presents a greater threat to their 

physical and emotional safety than allocating space on the Egan campus, where the BCS 7 th and 

8 th graders have been located all along. 

The District’s new position also directly contradicts the District’s position from last year, when it 

projected placing almost twice as many 7th and 8 th grade students on the Egan camp site itself. 

If the District believes that BCS 7 th and 8 th grade students and K-6 students would benefit from a 

little more space separation, the logical and legally compliant solution would be to place the BCS 

7 th and 8 th grade students on the adjacent Egan Jr. High campus with additional portables and 

shared access to middle school facilities. For all the reasons above, this would enhance student 

safety while also complying with the contiguous requirement, unlike the Preliminary Offer. 

VI. 

THE PRELIMINARY OFFER FAILS TO OFFER REASONABLY EQUIVALENT 

FACILITIES 

A. THE DISTRICT HAS NOT ALLOCATED SUFFICIENT TEACHING STATIONS TO 

THE CHARTER SCHOOL AND HAS ALSO OMITTED ENTIRE ROOMS OF 

SPECIALIZED TEACHING CLASSROOMS. 

5 CCR Section 11969.3(b)(1) states “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,” in each case 

determined for the grade levels for which facilities are requested. 

Concerning facilities BCS has requested for 7 th grade and 8 th grade students, in the Checklists for 

Space and Size Inventory for Comparison Group Schools the District has identified 18 teaching 

stations for 559 grade 7&8 students at Egan and 14 teaching stations for 464 grade 7&8 students 

at Blach for an average teaching stations to ADA ratio for the comparison group schools for 7 th 

and 8 th grade of .031. 15 Accordingly, For BCS’s 54 7 th grade and 8 th grade students an allocation 

of any fewer than two teaching stations would fail to achieve the teaching station to ADA ratio 

provided at the comparison group schools. Teaching Station to ADA ratio. Nonetheless, the 

District has allocated only one teaching station. 

15 BCS does not believe it is consistent with the regulations to perform this analysis on a combined 7 th and 8 th grade 

basis, particularly if doing so results in an allocation of facilities that is not reasonably equivalent. However, in the 

Preliminary Offer the District did not break its forecast of students down between 7 th and 8 th grades.




Page 37 of 48 

Exhibit D of the Preliminary Offer states that there are 16 classrooms at Blach, rather than the 18 

the District identified in Checklists for Space and Size Inventory for Comparison Group Schools. 

In addition, in Exhibit D the District identified one classroom at each of Blach and Egan that was 

excluded from the classroom count even though they are provided for and will be used by the 

students the District has projected for the two campuses. 

The statute requires that “[e]ach 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.” 

(Education Code Section 47614 (emphasis added).) 

Again, the District has proposed only a single teaching station to serve three classes of BCS 7 th 

graders and BCS 8 th graders – 40 7 th graders representing two classes and one 8 th grade class of 

14 students. There are no instances at the comparison schools where 7 th grade and 8 th grade 

students are served through their entire curriculum in a single combined classroom. 

The analysis requires the District to actually count the number of teaching stations (in use and 

those not in use) at each comparison school and divide that by the ADA at each school site and 

determine the number of teaching stations per ADA – please note that this is not the same as the 

District loading standard (which it appears the District has used to make its allocation) and will 

normally result in ADA to teaching stations ratios that are below the District’s loading standard, 

particularly in districts facing declining enrollment. 

The site maps of the Egan campus, attached to Preliminary Offer show 18 regular teaching 

stations. The District’s table, though, claims there are 16 classrooms at the site. The District is 

omitting classroom space in its calculations, thereby depriving BCS students of classroom space. 

While the District excludes entire classrooms in its calculations, it also excludes entire categories 

of specialized classroom teaching space. 

B. THE DISTRICT HAS NOT ALLOCATED SUFFICIENT NON-TEACHING SPACE TO 

THE CHARTER SCHOOL. 

In addition to teaching station and specialized classroom space, the Implementing 

Regulations require the District to provide non-teaching station space commensurate with the in- 

District classroom ADA of the Charter School and the per-student amount of non-teaching 

station space in the comparison group schools. (5 CCR Section 11969.3(b)(3).) Non-teaching 

space is all of the remainder of space at the comparison school that is not identified as teaching 

station space or specialized space and includes, but is not limited to, administrative space, a 

kitchen/cafeteria, a multi-purpose room, a library, a staff lounge, a copy room, storage space, 

restrooms, a parent meeting room, special education space, RSP space, and play area/athletic 

space, including gymnasiums, athletic fields, and locker rooms (or at least a reasonably 

equivalent place to change clothes for Physical Education classes). (5 CCR Section




Page 38 of 48 

11969.3(b)(3) and Sections 11969.9(f).) An allocation of non-teaching station space can be 

accomplished through shared use or exclusive use. 

The facilities offered to BCS are exclusively in portable buildings. Because these portable 

buildings come in fixed sizes, all space offered to BCS is clearly and easily included in the total 

square footage. For the District schools, much of the building space is in permanent buildings. 

These permanent buildings often include storage closets, data and electrical rooms, small work 

rooms and offices. The functional use of these spaces is irrelevant to the District’s obligation to 

count and include them when allocating space to BCS. BCS also must use its limited space for 

similar purposes like any school. Previous efforts by the District and its lawyers to limit what 

space on District campuses counts as “Proposition 39” space have been soundly rejected multiple 

times by the Court of Appeal. The point is that all these spaces, taken collectively, clearly 

impact the reasonable equivalence of the conditions on the site. The District must allocate 

facilities that are truly reasonably equivalent as a whole, not just in the functional categories the 

District chooses. 

So for example, the District’s analysis ignores many of the electrical and data rooms on the 

comparison campuses. BCS has electrical and data spaces on its campus. A section of the BCS 

teacher room has in fact been converted into a data/electrical room. So this space is included in 

the BCS space, but excluded from the counted space on several of the District’s comparison 

schools. 

Another example is in the kindergarten rooms. BCS like all of the elementary schools has 

bathrooms for the kindergarten students inside of the classrooms. In addition, kindergarten 

classrooms are larger to leave more work space for teachers that teach these grades. Again, all of 

BCS’s kindergarten space (classroom area, teacher work area, and bathrooms) are included in the 

District’s analysis. On several of the comparison school, such as Loyola, the District appears to 

leave out the kindergarten bathrooms and/or kindergarten teacher work areas. 

Another example is at Egan. On the site plans for the District, a large portion of Building A is 

labeled “Mechanical”. If one reviews the site use map for the campus, one can see that part or 

all of this area is in fact a CHAC/speech room and does not appear to be included in the 

District’s calculation of space at Egan. 

The Proposition 39 law and its Implementing Regulations state that BCS students are entitled to 

a share of ALL non-teaching facilities, regardless of how the space is currently used, 

commensurate with its in-District ADA. (5 CCR Section 11969.3(b)(3).) A reasonably 

equivalent facility would offer, among other things, BCS students a place to be counseled 

privately and a place for its teachers to work privately. A reasonably equivalent facility would 

also provide a performance space for BCS students to express themselves, space for BCS to store 

its supplies and files out of the way, and a place for administrators to perform their assigned 

duties and meet privately with employees, parents, or students. As a result, the District’s offer 

violates 5 CCR Section 11969.3(b)(3) and Section 11969.9(f).




Page 39 of 48 

C. ALLOCATING INSUFFICIENT TEACHING STATIONS TO ALLOW BCS TO HAVE 

SEPARATE CLASSES FOR EACH GRADE LEVEL, WHEN THE DISTRICT DOES 

NOT PLACE ITS STUDENTS IN SIMILAR “COMBINATION CLASSES”, FAILS TO 

SATISFY THE REASONABLY EQUIVALENCY STANDARD. 

The Bullis Court ruled that in meeting the District’s Proposition 39 obligation, “a good faith 

effort to achieve reasonable equivalence is necessary.” Bullis at 1061. As the District itself told 

the California Supreme Court, the Court of Appeal “conclude[d] that the District did not make ‘a 

good faith’ offer.” Reply To Answer To Petition For Review at 18. 

As the District often does in Proposition 39, it dismisses BCS’s position that grade level 

combination classes are not reasonably equivalent by stating that it finds nothing in the 

Implementing Regulations that explicitly prohibits them. This misses the “good faith” standard 

set out by the courts entirely. The standard is not that in allocating facilities, the District may do 

anything that is not expressly prohibited in an explicit regulation. “Standard Room Sizes” were 

not expressly mentioned in the regulations either, yet the Court prohibited them. 

Rather, the District must make a good faith effort to determine whether the “facilities [are] 

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.” Ed Code §47614(b). 

In some cases allocating teaching stations without regard to enrollment in individual grade levels 

might be appropriate; for instance if the school district itself had a history of combining different 

grade levels in a classroom whenever needed to maintain an established minimum number of 

students. However, that is not the case in the Los Altos School District. In recent years there 

have been classrooms with far fewer students than the average; rather than combine those 

students with students from another grade level to minimize the number of classrooms needed, 

the District has provided enough classrooms to keep grade levels separated. 

If BCS students attended a public school of the District, they would be accommodated in a class 

consisting solely of students in their own grade level. Making a good faith effort to 

accommodate BCS students in reasonably equivalent conditions does not just mean providing 

numerical equivalence that in practice is insufficient to approximate the conditions at District 

schools. When the District allocates classrooms insufficient for BCS to accommodate in-District 

children in separate classes by grade level, or allocates a portable based on numerical 

calculations to serve a multitude of incompatible purposes, it is failing the standard set by the 

law. 

The District must look at the allocation of classrooms it is proposing and evaluate in good faith 

whether that allocation is sufficient to accommodate BCS in-district students in conditions




Page 40 of 48 

reasonably equivalent to those they would experience at a District school. BCS students would 

not be placed in grade level combination classes in a District school as the District does not have 

any. Forced combinations of multiple grade levels in a single classroom do not accommodate 

students in reasonably equivalent conditions to classrooms with a single grade level. 

The District must review its Preliminary Offer and allocate additional teaching stations sufficient 

for BCS to accommodate each of its in-District students in a classroom with grade level peers. 

VII. 

THE PRELIMINARY OFFER FAILS TO ACCOMMODATE BCS 7 TH AND 8 TH 

GRADE STUDENTS IN REASONABLY EQUIVALENT FACILITIES 

A. THE LIMITED PROPOSED SHARING OFFER AT BLACH DOES NOT PROVIDE BCS 7 TH 

AND 8 TH GRADE STUDENTS WITH A REASONABLY EQUIVALENT AMOUNT OF TIME 

IN SPECIALIZED CLASSROOM AND NON-TEACHING SPACES. 

The Preliminary Offer does not provide BCS’s students with access to Blach’s facilities to the 

same degree the District students enjoy Blach. The sharing arrangement is incomplete. The 

District does not mention where BCS students are to use the restrooms, and one cannot presume 

the District is allowing BCS students to share the restrooms with other Blach students, as the 

Preliminary Offer requires BCS students “must be under the direct supervisions of a certified 

employee at all times that BCS students use the Blach facilities.” Nor does the District indicate 

whether BCS has any use of field space other than 1 hour per week on the track. 

The District has done several things to justify allocating far less shared space than what is 

reasonably equivalent. These unfair practices include: 

• Allocating space for only half of BCS’s 7 th and 8 th grade students 

• Only allocating between 1 and 1.5 hours per week despite the fact that there are at least 

35 hours per week available in each facility 

• Ignoring in its calculation of fair sharing the fact that there are 4 science rooms on each 

campus and the District is only allocating use of 1 science room to BCS for 75 minutes 

per week. 

• There are two drama/chorus/band/orchestra rooms on each campus, but it appears that 

only one is allocated to BCS, although this fact is somewhat unclear. 

• The District understates the square footage of the tennis courts 

Below is a table showing the inequity of equivalent space owed to BCS versus what is being 

allocated based on the full-time equivalent space being provided.




Page 41 of 48 

Areas 

District Space for 

(1023 Students) 

Avail. 

Hrs/Wk 

BCS Fair Allocation 

(Based on 54 

Students) 

BCS 

Hours/Wk 

Allocation 

SF Hrs SF Hours SF 

Science Labs 12,372 35 653 1.25 54 

Drama/Chorus/ 7,724 35 408 1.5 79 

Band/Orchestra 

Library 7,702 35 407 1 117 

Multi Purpose 16,456 35 869 1 235 

Room 

BCS 

Equivalent 

Allocation 

Gymnasium 21,000 35 1,109 1 300 

Tennis Courts * 26,400 35 1,394 1 377 

Track ** 74,400 35 3,927 1 1063 

Engineering 6,168 35 326 1.25 94 

* District provided what appears to be an inaccurate estimate. BCS estimate used 

** District neglected to provide estimate of square footage 

B. A SINGLE 960 SQUARE FOOT PORTABLE CANNOT BE FURNISHED AND EQUIPPED 

IN A MANNER THAT OFFERS BCS 7 TH AND 8 TH 

GRADE STUDENTS REASONABLY 

EQUIVALENT CONDITIONS TO THOSE PROVIDED TO DISTRICT STUDENTS, WHO 

HAVE ACCESS TO A MULTITUDE OF SEPARATE AND DIFFERENTLY EQUIPPED 

SPECIALIZED CLASSROOM AND NON-TEACHING SPACES. 

The District’s Offer provides a single 960 square foot classroom portable to house three classes 

(two 7 th grade classes and one 8 th grade class). Furthermore, the second and only other portable 

provided to BCS students at Blach, for their exclusive use, cannot possibly simultaneously serve 

all purposes identified by the District. A single 960 square foot portable cannot be furnished 

and equipped to meet all the functions specified in the Preliminary Offer, such as teacher’s 

lounge, servery, custodial space, locker room, PTA space, administrative office, teacher work 

space and other specialized teaching space. This “catch-all” portable is an effort to appear to 

provide BCS students with reasonably equivalent facilities, yet the reality is that District students 

have access to a multitude of separate and differently equipped specialized classroom and nonteaching 

spaces, spacious permanent structure with natural light and a plethora of equipment not 

afforded the charter students. The charter students are instead not offered access to those 

specialized classrooms; rather they are crammed into one catch-all portable that is designated to 

serve many incompatible purposes. 

This problem is a direct consequence of arbitrarily reducing BCS’s forecast for 7 th and 8 th grade 

students and then proposing to place them on a separate campus isolated from the rest of the 

BCS program. As was noted in Ridgecrest, splitting small numbers of charter school students 

onto separate campuses and then using mathematical precision to assign them unworkable 

allocations does not accommodate them in reasonably equivalent conditions.




Page 42 of 48 

VIII. 

THE PRELIMINARY OFFER CONTAINS ADDITIONAL ERRORS AND OMISSIONS 

THAT RESULT IN AN UNDER ALLOCATION OF SPACE TO BCS 

A. SCHEDULE ISSUES 

Page 6 of Request states: “In addition to our standard school day from 8 to 4:45 weekdays, we 

BCS anticipates an extended day on September 21, 2012 until 8 pm. BCS also anticipate using 

the site and facilities on October 13, 2012 from 8 am till 5 pm. These dates are provisional.” 

The PO and FUA contradict our request with the following statements: 

Proposed FUA states: Section 5. Civic Center Act Compliance. Unless otherwise provided in this 

Agreement, Charter School shall also have full, exclusive, and primary use of the Site and abovedescribed 

Facilities on regular school days (7:30 a.m. through 4:30 p.m.) from Monday through 

Friday; provided, however, that access to the facilities by third parties after 4:30 pm during the 

week and all day on weekends and holidays shall be governed by the terms of the Civic Center 

Act. (Ed. Code section 38130 et seq.) The District shall make all determinations with respect to 

all requests to use the Site and above-described facilities under the Civic Center Act.” 

Page 22 of PO states: “The turfed area and field will be subject to community and group use on 

weekends or other times that BCS is not in session (after 3p.m on school days), pursuant to the 

Civic Center Act (Ed. Code § 38130 et seq.) and District policies for such use.” 

Please correct both of the above to reflect that the BCS school day lasts until 4:45pm not 3pm. 

B. INCORRECT ATTENDANCE AREA INFORMATION 

The District states on page 3 of the Preliminary Offer that, “In addition, BCS also erroneously 

identifies "BP" (Bullis-Purissima) as an existing District elementary school.” 

BCS clearly stated on pages 2 & 3 of its Request for Facilities which District school is the school the 

student would otherwise attend for the students being projected for the 2012-13 school year. The 

tables shown below are from pages 2 & 3 of the BCS request. As can be seen here, there is no 

reference to BP when specifying BCS’s projections for where BCS expects students to come from for 

the 2012-13 school year. 

Grade/School Gardner Santa Rita Almond Covington Loyola Springer Oak Total 

K 18 11 9 9 6 5 2 60 

1 16 11 10 6 7 8 2 60 

2 20 8 5 5 15 5 2 60 

3 26 6 5 11 5 5 5 63 

4 24 14 10 11 6 9 0 74 

5 22 13 17 6 5 7 4 74 

6 11 11 5 8 9 3 1 48 

TOTAL 137 74 61 56 53 42 16 439




Page 43 of 48 

Grade/School Egan Blach TOTAL 

7 34 6 40 

8 13 1 14 

TOTAL 47 7 54 

BCS inadvertently used BP in place of Gardner in Exhibit 4. Exhibit 4 was provided as backup 

information regarding students and is not BCS’s facility request. 

C. HIGH SCHOOL ATTENDANCE AREAS 

The District begins its Preliminary Offer with an irrelevant analysis by first breaking BCS’s 

student population into a K-6 group and a 7-8th grade group to determine which high school 

attendance areas a majority of each of those subgroups attend. (Preliminary Offer at 1-4.) This 

approach is not supported by the regulations. 

Regardless of grade configuration, there is only a single relevant high school attendance area for 

a charter school under §11969.3(a). It is “the high school attendance area…in which the largest 

number of students of the [entire] charter school reside”, not some grade level subset. Id. There 

is also a single comparison group for the entire K-8 BCS school, consisting of district-operated 

schools serving any of the grade levels served by the charter school that also serve students 

residing in that high school attendance area. California School Boards Association v. State 

Board of Education (2010) 191 Cal. App. 4th 530. As discussed infra in Section III.A., there is 

also a single reasonable enrollment projection for the entire charter school, not separate ones for 

different grade levels or combination of grade levels. 

The District in its analysis incorrectly analyzed the BCS elementary school and junior high 

school students separately. BCS is a single K-8 school, so only 1 high school attendance area is 

relevant. The District indicated that BCS did not provide the high school attendance areas for its 

students which it acknowledges is not a requirement of Proposition 39. If the District requested 

this information, BCS would have been more than happy to provide this information. As BCS 

indicated in its request for facilities, the vast majority of BCS’s current students live within the 

Los Altos high school attendance area. Below is a table showing the high school attendance area 

for BCS’s current students: 

High School 

Current BCS 

Percent 

Students 

Los Altos High School 358 students 82.7% 

Mountain View High School 75 students 17.3% 

This supports BCS’s original request for a reasonably equivalent contiguous site within the Los 

Altos High School attendance area. BCS expects the mix of high school attendance areas to 

remain approximately the same for the 2012-13 school year. The District’s estimates shown on




Page 44 of 48 

Page 4 and 5 of the Preliminary Offer are clearly far from accurate, although the conclusion that 

BCS falls within the Los Altos High School attendance area is correct. 

D. PARKING LOT ERROR 

Page 18 of the Preliminary Offer states “Placing BCS’s seventh and eighth grade students at 

Blach will reduce … traffic in the BCS parking lot during pick-up and drop-off times;” 

This is in fact not true at all. BCS’s 7 th and 8 th grade students start and end school at different 

times than the K-6 students and therefore the parking lot traffic will not be impacted at pickup 

and drop off times due to the presence or absence of 7 th and 8 th grade students on the Egan site. 

E. NUMERICAL ERRORS 

There are numerous numerical errors throughout the Preliminary Offer and backup pages 

summarized below: 

Preliminary Offer page 14, in table at the top, the Total Site Size for Springer is listed as 10 acres 

and 465,600 SF. 

These two numbers are clearly not the same. The 465,600 SF corresponds to the 10.69 acres 

reflected in the budget report. Based on the budget report, BCS believes the 10.69 acres is likely 

the correct number. 

Preliminary Offer page 14, in lower table, the Total Site Size for Springer after the child care 

facilities is removed is listed as 9.86 acres. 

BCS believes that this number is in error due to the error above. BCS does not believe that the 

Springer childcare facility takes over 1 acre on the campus. Therefore, BCS believe that this 

number should be 10.55 acres or 459,588 SF. 

On page 21 of the Preliminary Offer, in the table under Library, it states that BCS actual building 

allocation is 1.86 [portable units] (1,791 SF). 

BCS has a 1,440 SF portable building currently on the campus. It is BCS’s belief that the 

District intends on offering that same building as the library space. If that is the case the 

“Surplus” for the library allocation would need to be reduced to -0.74. This by itself would then 

reduce the “Total Surplus” to 0.62. 

On page 22 footnote 12, states that “The square footage of the Turfed Area accounts for the 

addition of the portable buildings in the summer of 2011.” 

Based on BCS’s calculations, it does not look like the District reduced the turfed area 

sufficiently. This is because the District insisted on an 8 foot offset from the sidewalk in the 

back. In addition, a walk way was added in front. Some additional turfed area was taken to




Page 45 of 48 

provide space for the lockers. BCS believes the lost turfed area is approximately 5,200 SF. This 

would result in the “Turfed Area” listed in the Preliminary Offer at the top of page 22 as being 

77,941 SF instead of the 80,161 SF listed. This would then result in a BCS SF/ADA of 177.54 

SF/ADA. 

Errors in the table on page 24. 

The District claims the tennis courts on the Egan and Blach campuses represent 3.11 SF/ADA . 

This would indicate the total tennis court space on both campuses combined is approximately 

3,182 SF, but it is much larger. 

The District has not provided square footage/ADA estimates in this table for the Outdoor Space, 

Gymnasium, or Track. 

On pages 25, the District claims “Access to specialized teaching space at Blach one period a 

week represents reasonably equivalent access to specialized teaching space according to the 

5.3% ratio of BCS seventh and eighth graders to the average projected ADA at the Districts' 

junior high schools.” 

BCS has requested an explanation of how 5.3% equates to one period a week. BCS doesn’t 

understand the logic in how 5.3% equates to one period per week. Each group of 27 in-District 

students at either of the District junior highs gets use of specialized facilities such as a science 

room 5 days per week for one class period per day. In addition, the room is available to the 

class’s teacher for setup and cleanup in addition to that time, so one period per week for 27 BCS 

students (let alone the 54 that the District should be using for this calculation) is clearly less than 

reasonably equivalent. BCS believes the same error exists in the sharing schedule for other 

specialized classrooms/non-teaching station spaces at Blach, and requests the District review this 

and provide a clarification. 

Exhibit D Errors 

The Springer Art/Music room is listed as 960 SF. BCS believes the Springer Art/Music room is 

1440 SF. 

The Loyola Speech/ELL space is listed as 240 SF each. BCS believes that the room is a 960 SF 

portable and therefore the space for Speech and ELL should be 480 SF each. 

The tables show the PE/Health Teaching Space at Egan as 960 SF. Looking at the school site 

map, it looks like 2 rooms (Room 33 and Room 17) are both used for PE/Health. So, BCS 

believes that it should read 1920 SF of space for PE/Health. 

The District’s check list contains some incorrect site plans.




Page 46 of 48 

The plans provided for Gardner Bullis were from 1996 prior to the modernization of that campus 

and don’t reflect the buildings currently on the campus. 

The Santa Rita multi-purpose room building plans are missing from the list. 

The multi-purpose room building plans for Egan and Blach are missing from the checklist. 

The Egan gym building plans are missing from the checklist. 

Sharing Arrangements are not Sufficiently Specified 

The Preliminary Offer neglects to provide a clear explanation of the shared use of facilities at 

Blach. The Offer provides no explanation of what portions of the campus the BCS students have 

access to during parts of the school day such as at lunch time and recess. The Offer neglects to 

indicate what facilities the BCS staff can use on the Blach campus such as for restrooms and 

teacher prep rooms. The Offer doesn’t provide clarity around the use of restrooms, blacktop, and 

field space at Blach. BCS has need of sports facilities beyond just PE. BCS students participate 

in intramural activities that require both indoor and outdoor space each day starting at 3:29PM. 

The Preliminary Offer neglects to mention sharing arrangements being imposed on the Egan 

campus. The Preliminary Offer states on page 20, “For BCS grades K-6, the District offers 

BCS the exclusive use of space of the facilities described below at Egan Junior High School, 

located at 100 West Portola, Los Altos, California for the 2012-2013 school year.” In talking 

with District staff and board members, it appears that the District does not really intend to offer 

exclusive use access to the full site during BCS’s full school day, but intends on imposing a 

sharing arrangement to allow the Egan softball team to utilize the baseball field during part of the 

BCS school day. In addition, there has been some mention of possibly needing the patch soccer 

field during parts of the track season. 

F. ADDITIONAL CHECKLIST ERRORS 

The checklist states under both Springer and Blach that the overall site size used BCS Aerial 

Photos. BCS did not provide aerial photographs of either of these sites. 

The Blach checklist appears to count room E.02 twice. It appears to count it as 2 classrooms as 

well as under specialized teaching space under video production. 

The Preliminary Offer does not identify where the 2 portables those students will be located on 

that site. 

G. EXHIBIT B ERRORS & OMISSIONS 

Exhibit B ‘Analysis of “Reasonable Equivalent” Space for a Charter School under Proposition 

39 Size and Condition” is incomplete. The table lists “Number of portables” but does not 

specify the size of the portables. Nor are these sizes fully reported elsewhere. Mr. Kenyon




Page 47 of 48 

indicated that the sizes of all the portables were reported in the checklist. BCS was unable to 

find the size of all portable buildings in the checklist. For example, the bathroom portable at 

Egan was not included in the checklist. Since the checklist does not indicate whether the space is 

in a portable or fixed room, it is also difficult to sometimes determine where these portables 

might be shown. 

Exhibit B is also incomplete in that the analysis of the suitability of the size of the facility for the 

intended use has not been conducted and is blank on the exhibit. This is required by 

§11969.3(c)(1)(E). 

CONCLUSION 

BCS’s Facilities Request, dated October 31, 2011, provides the correct methodology under 

Proposition 39 and the Court of Appeal’s ruling. Exhibit 2 of the Facilities request provides the 

benchmark of space against which the Direct should be allocating space and facilities to BCS. 

The District’s Preliminary Offer comes nowhere near meeting the requisite standards and 

entirely omits entire analyses required under the regulations. The District has sites large enough 

to house the BCS integrated K-8 program on a single contiguous campus. The District has failed 

to consider any steps that would require any disruption on any of its existing school sites, let 

alone the considerable disruption that may be required to equalize treatment after years of 

discrimination against charter students. 

The Preliminary Offer is unlawful for all the many reasons discussed herein and exhibits a 

continued lack of good faith in the District’s performance of its duty to treat District students and 

charter school students equally in the allocation of facilities, subject to the requirement that a 

charter school program, regardless of its grade configuration, is entitled to a contiguous site. We 

continue to hope that with the parties engaging in negotiations and mediation, and with 

additional clarity from the courts as necessary, the District will soon be ready to discuss a 

permanent site for BCS that will accommodate BCS students in conditions reasonably equivalent 

to their District peers. That would be an extremely important step in building a cooperative 

working relationship between BCS and the District that would benefit our local community. 

Although Proposition 39 requires the District to allocate a school facility for Charter School use, 

BCS remains amenable to discussing alternative facilities arrangements that meet both the needs 

of the District and BCS. Nothing in this document should be construed as a waiver of any rights 

of BCS. BCS hereby reserves any and all rights available to BCS under the law. 

All communications regarding this matter should be sent to Superintendent/Principal Wanny 

Hersey’s attention at the address below. My contact information also follows:

BCS' response - Bullis Charter School

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