January 10, 2014 Mike Kirst, President California State Board of Education 1430 N Street, Suite 5111 Sacramento, CA 95814 Re: SBE January Agenda Item #20 - LCFF Emergency Regulations Dear President Kirst: We represent a coalition of civil rights, community-based, and other organizations that have worked in collaboration with you on the passage and implementation of the Local Control Funding Formula (LCFF). We would like to thank you and the State Board of Education for these proposed emergency regulations and LCAP template. We believe they have come a long way since the November 2013 meeting in balancing flexibility with equity. We are also appreciative of the state board’s inclusiveness in working with a broad range of stakeholders and being open to and responsive to our concerns. At the same time, we believe the language on districtwide uses of supplemental and concentration grants in the emergency regulations is overly broad and risks undermining the significant progress that has been made to ensure these grant dollars will benefit the students who generated them. Before discussing a proposed solution to that issue, we would like to express our appreciation for a number of changes from the draft presented in November 2013. These changes were responsive to feedback that we provided, even if some did not go as far as we would have liked: 1. There is now a standard calculation for LEAs to determine the percentage by which services for unduplicated students must be increased or improved above services provided to all students. 2. The percentage represents a single-year snapshot of how much of an LEA’s funding is attributable to supplemental and concentration funds, which we believe more closely aligns with the statutory framework and overarching premise of LCFF that funds generated to serve high needs students should, in fact, be used to serve those students. 3. There is much improved guidance and instructions for LEAs on how they must engage parents, students, and other stakeholders in the LCAP process. 4. The LCAP instructions more clearly mirror the statutory mandate that LEAs must include schoolsite and subgroup goals and actions, and new instructions facilitate alignment between school-specific goals in Single Plans for Student Achievement and LCAPs and also will assure that feedback from schoolsite councils, ELACs, and DELACs is included in the LCAP planning process. 5. There are improvements to the LCAP template’s organization and clarity; this better supports transparency on district plans and expenditures. Despite these changes, we share one primary concern: the regulations guiding districtwide uses of supplemental and concentration funds are overly broad. These provisions risk undermining the significant progress that has been made to ensure these grant dollars will benefit the students who generated them. 1 LEAs with more than 55% unduplicated students may use supplemental and concentration grant funds for any purpose, as long as they can describe how those services must meet the district’s goals for unduplicated students. The current template would allow such goals to be no different than those established by the LEA for all students. Thus, this proposed standard does not treat the use of supplemental and concentration funds for unduplicated pupils any differently than base dollars available to address the standard program. We believe this creates a significant potential loophole, as it allows a considerable portion of the dollars generated by unduplicated pupils for their specific “beyond-base-grant” needs to be spent on increasing or improving services for non-unduplicated pupils. A district could, for example, use supplemental and concentration grants to purchase tablet computers for all district students. To justify this, the LEA could argue that these investments will help meet its goals for all students, including unduplicated pupils. While improving the standard program may be an appropriate use of base grant funding, these decisions would be inconsistent with the law’s premise that the additional funds generated by unduplicated pupils should be directed, first and foremost, to improving the educational experience of unduplicated pupils and should not be treated as base funding to expand the core program. We believe that stronger protections around districtwide and schoolwide use of funds may well be necessary to ensure that supplemental and concentration funding are actually used to benefit the students generating them, consistent with the premise of LCFF. These stronger assurances would include: 1. Higher districtwide and schoolwide thresholds that capture LEAs and schools serving significant concentration of unduplicated students, 2. Criteria for determining whether a service meets the standards for “most effective” use of funds, 3. Stronger provisions assuring that supplemental and concentration funds can be used for districtwide and schoolwide services only if the service demonstrably provides a differential benefit to unduplicated pupils in order to address unduplicated pupil goals, and 4. Criteria for County Offices of Education to oversee and approve LCAPs.1 We will more explicitly provide details to the Board on these areas through the permanent rule making process, and many of us as individual organizations have already provided concrete regulatory language suggestions to the Board. However, given the current timeline and the fact that these emergency regulations must be adopted imminently, we suggest the SBE, at a minimum, modify the standard for above-threshold LEAs, found in § 15496 (b) (1) (B), in the following way: “Describe in the LCAP how such services are principally directed towards serving unduplicated pupils and effective in meeting the district’s goals for its unduplicated pupils in the state priority areas.”2 This change would provide a minimum safeguard against abuses of supplemental and concentration grant funds during this first year of implementation, as we await permanent regulations. This safeguard would continue to balance flexibility with the law’s requirement to increase or improves services for unduplicated students. If abuses occur, we believe SBE has the authority and obligation to correct them. 2 With this change, while an LEA or school could still increase or improve services evenly to all students districtwide with supplemental and concentration funds, it would nonetheless need to demonstrate that the districtwide service is being pursued precisely because it is envisioned as helping unduplicated pupils first and foremost, versus simply desiring to improve the general core program for all students. Such an approach is more aligned with the statute and the standard proposed in Section 15496(a) (“….This funding shall be used to increase or improve services for unduplicated pupils as compared to the services provided to all pupils…”). We recommend the Board improve and approve these emergency regulations. While many of our organizations have further suggestions for ways in which these regulations can be improved going forward, we collectively agree that this correction, at minimum, should be made before the Board approves these emergency regulations. Improving and approving these regulations will offer districts and communities the guidance they need to begin their local planning and budgeting processes. We are excited about the local engagement and decision-making process that is being initiated by this new law and these new regulations. We will be closely monitoring these local processes and plans to ensure they are in alignment with the letter and spirit of the law. We also expect to learn from this first year of implementation and to develop additional recommendations to strengthen the permanent regulations and to recommend appropriate statutory modifications. Sincerely, John Affeldt, Managing Attorney, Public Advocates Inc. Stella Connell Levy, President, Restorative Schools Vision Project Oscar Cruz, President and CEO, Families In Schools Molly L. Dunn, Policy Attorney, Alliance for Children’s Rights Jamila Iris Edwards, Northern California Director, Children's Defense Fund - California Laura Faer, Statewide Education Rights Director, Public Counsel Melia Franklin, Executive Director, Bay Area Parent Leadership Action Network Roberta Furger, Policy Director, PICO California Mynor Godoy, California State Program Director, Students for Education Reform Jan Gustafson Corea, Executive Director, California Association for Bilingual Education Jesse Hahnel, Director-Foster Ed, National Center for Youth Law Taryn Ishida, Executive Director, Californians for Justice 3 Carolyn Laub, Executive Director, Gay-Straight Alliance Network of California Brian Lee, State Director, Fight Crime: Invest in Kids California Ted Lempert, President, Children Now Francisco Lobaco, Legislative Director, ACLU of California Jennifer B. Lyle, Chief of Operations, Building Blocks for Kids Collaborative Kenneth Magdaleno, Executive Director, Center for Leadership, Equity, and Research Sammy Nunez, Executive Director, Fathers & Families of San Joaquin Ama Nyamekye, Executive Director, Educators 4 Excellence - Los Angeles Nicole Ochi, Staff Attorney, Asian Americans Advancing Justice - Los Angeles Kim Pattillo Brownson, Director of Educational Equity, Advancement Project Jennifer Peck, Executive Director, Partnership for Children & Youth Warren Quann, Legislative Director, California State Conference of the NAACP Arun Ramanathan, Executive Director, The Education Trust—West Cynthia L. Rice, Director of Litigation, Advocacy and Training, California Rural Legal Assistance, Inc. Angelica Solis, Executive Director, Alliance for a Better Community Shelly Spiegel Coleman, Executive Director, Californians Together Jennifer A. Waggoner, President, League of Women Voters of California Debra Watkins, President and Executive Director, California Alliance of African American Educators CC: Members, California State Board of Education Karen Stapf Walters, Executive Director, California State Board of Education Janelle Kubinec, Director of National, State and Special Projects, WestEd Judy Cias, Chief Counsel, California State Board of Education Brooks Allen, Deputy Policy Director and Assistant Legal Counsel, California State Board of Education Christine Swenson, Director of Improvement and Accountability, California Department of Education Nick Schweizer, Department of Finance Cathy McBride, Governor’s Office 4 1 We believe the inclusion of regulatory language affirming the authority of COEs to review whether the LEA has met the proportionality standard established in the regulations is a significant improvement over prior drafts. The current language, however, could be mistakenly read by some to authorize COE review of only districts that are below the districtwide or schoolwide thresholds as the first sentence in the subparagraph references only those subdivisions. We recommend, as a technical amendment, switching the order of the two sentences in subparagraph (c) so that the current second sentence—which authorizes county superintendents of school not to approve an LCAP if the LEA has failed to meet the proportionality requirement required by § 15496, i.e., regardless of whether the LEA is above or below any given threshold—is the first sentence and inserting the word ”particularly” between “shall” and ”review” in what is currently the first sentence. 2 To be internally and logically consistent, the same proposed language should be substituted into Sec. 15496(b)(3)(B) as concerns schools that are above the 40% threshold. 5