Proposition 39 Overview


The intent of Proposition 39 ("Prop. 39") is to ensure "that public school facilities should be shared fairly among all public school pupils, including those in charter schools." (Ed Code 47614)

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The intent of Proposition 39 ("Prop. 39") is to ensure "that public school facilities should be shared fairly among all public school pupils, including those in charter schools." (Education Code Section 47614.) Prop. 39 requires school districts to make "reasonably equivalent" facilities available to charter schools upon request. To make the most of Prop. 39, schools should be informed, be in compliance and be creative in their negotiations with their school districts.

If you have questions or concerns about the issues discussed in this section, we recommend that you consult with an attorney to discuss your options. District responses to charter school facility requests vary considerably, from complete compliance to outright refusals. Savvy charter school operators should familiarize themselves with their rights and duties under Prop. 39, and negotiation strategies and alternatives to Prop. 39 compliance, such as those mentioned below. In the meantime, devote some energy to research and compliance, and work with the Association staff and other professionals to help find viable solutions for your school.

What are "Prop. 39" facilities?

School districts are required to provide "reasonably equivalent" facilities to eligible charter schools. (Education Code Section 47614.). To determine whether the facilities offered by a school district are reasonably equivalent, you must know what the condition and capacity of the "comparison group" schools are. This evaluation requires some research on your part, preferably at the start of the process, but at least in time for negotiations in the spring.

The definition of a "comparison group" school is technical, but generally a charter school's comparison group schools are the district-operated schools with similar grade levels that serve students living in the high school attendance area in which the largest number of the charter school's students reside.

This means that if district students are housed in state-of-the-art buildings at the comparison group schools, charter students are entitled to the same. And, if district students are housed in portables at the comparison group schools, then charter students are entitled to the same.

Note that "reasonably equivalent facilities" does not mean that the charter school is entitled to facilities that are better than what district students occupy or facilities that are designed specifically for the charter school's particular needs. In many cases, "reasonably equivalent" district facilities will not satisfy the charter school's long-term programmatic needs. However, Prop. 39 may meet short-term facilities needs, or be a good lever for seeking an alternative to Prop. 39 compliance.

Yesterday and Today

Prior to the passage of Proposition 39, charter law permitted charter schools to use, at no cost, school district facilities which the district was not using for instructional or administrative purposes or which were historically used as rental properties. Districts rarely complied with this permissive law and charter schools' access to adequate facilities became one of their biggest challenges.

In 2003, Prop. 39 imposed a mandatory duty on school districts to provide their charter school students facilities that are "reasonably equivalent" to those used by non-charter students within the district. The charter school facilities must be

  • Contiguous (located together, not spread across campus or multiple sites)
  • Similarly furnished and equipped.
  • Located near the area in which the charter wishes to locate

Although the law has been in effect for several years, school districts and charter schools continue to struggle with its implementation. In January 2008, the State Board of Education amended its Prop. 39 regulations to address many of the issues troubling both sides.

Learn more about the history of legal challenges to Prop 39 by clicking on the "Legal Challenges" tab, above.

If you have questions or concerns about the issues discussed in this section, we recommend that you consult with an attorney to discuss your options.

Eligibility for Facilities Under Prop. 39

In order to be eligible for facilities under Prop. 39, charter schools must provide "reasonable projections" of their average daily attendance (ADA) of at least 80 in-district students. In-district students are those students who could attend a district school if they had not chosen to enroll in the charter school.

Districts may deny a school's request if the school projects fewer than 80 in-district ADA. A charter school may request facilities from each district from which they project ADA of at least 80 students, even if the district is not the charter authorizer. . It is important to note that the projections must be of ADA, not enrollment.

Districts are not required to provide facilities for students who attend the charter school from outside the district. However, charter schools are not prohibited from serving out-of-district students in another district's facilities. Because of the threshold of 80 ADA, charter schools that accept students from several districts could have a difficult time meeting the prerequisite number from a single district, or may find that they cannot satisfy their entire school population under Prop. 39.

We advise charter schools to review this issue early when you are deciding whether or not to pursue district facilities under Prop.39.

Costs For Use Of District Facilities

School districts are allowed to charge charter school for use of district facilities under Prop. 39. Prop. 39 provides two alternatives for the district to charge charter schools annually for the use of facilities: a pro rata share charge or an increased oversight fee. Although many school districts have historically charged both the pro rata share and the increased oversight fee, the amended regulations clarify that only one charge is authorized.

Pro Rata Share Charge

One option is for districts to charge a "pro rata share" of the district's facilities costs. The charge must apply equally to all charter schools using district facilities. The pro rate share may not exceed:

  1. a per-square-foot amount equal to the district's facilities costs which are paid with unrestricted general fund revenues, divided by the total space of the district; multiplied by,
  2. the amount of space allocated to the charter school.

Example calculation:

School district X has a total of 6,000,000 sq. ft. of facilities for which they pay $7 million from their unrestricted general funds. The pro rata share would be $7 million divided by 6 million, or $1.17 per sq. ft.

Charter school Y is given 10,000 sq. ft. The charter school's annual payment to the district would be $1.17 times 10,000 sq. ft., or $11,700 per year.

In practice, calculating the pro rata share is rarely this straight forward. Although simple in theory, calculating the "pro rata share" is complex and unclear. The two most important variables, total district space and unrestricted general funds used for facilities can prove difficult to quantify. Many districts simply do not have an accurate estimate of their square footage or their facilities costs; others attempt to add to their costs expenses that the regulations specifically exclude, or that the charter school pays for itself. We strongly advise charter schools to meet with their districts, ask for supporting documentation, and to review the details carefully. If you are not confident in your ability to work through these details, there are paid consultants and Association staff to assist you.

Beginning in the 2009-10 school year, charter schools using district facilities under Prop. 39 and paying the pro rata share charge must report the per-square-foot charge to the CDE. Charter schools must include this charge in their annual funding method report to the CDE, who will then post the charges on its publicly accessible Web site. We hope that the publication of this information will lead to more predictable, transparent and fair charges statewide.

Increased Oversight Fee

The second option is for a district to charge a charter school the district's actual costs of oversight up to three percent of the charter school's revenue (defined as the general purpose entitlement and categorical block grant), rather than up to one percent of revenue as allowed elsewhere in the Charter Schools Act. Although the law specifies that the district is entitled to actual oversight costs, we note that districts who opt for this charge routinely charge exactly three percent of revenue, rather than determining the actual costs of oversight and only charging up to three percent of those costs. Many districts simply assume that its oversight costs exceed three percent of a school's state revenue and charge that maximum amount. As with the pro rata share calculation, we strongly advise charter schools to meet with their districts, ask for supporting documentation, and to review the oversight costs carefully.

Other Costs

Regardless of how the district opts to charge for using the facilities, the distribution of other costs is separate. For example, the charter school is responsible for the ongoing operations and maintenance of the facility, furnishings and equipment it uses. The school district is responsible for items and projects funded through the deferred maintenance programs and the replacement of equipment and furnishings.

Reimbursement for Over-Allocated Space

Charter schools that over-project ADA may be required to pay a penalty for the over-allocated space. If the difference between the projected and actual in-district classroom ADA is greater than or equal to 25 ADA or 10 percent of projected in-district classroom ADA, whichever is greater, then the penalty may apply. The penalty is assessed on a per-ADA basis, so the larger a charter school's over-projection, the larger the penalty.

Paying for Prop 39 fees

Charter schools often ask whether SB 740 funds may be used to pay Prop 39 fees (for example fees to co-locate). The answer is No. SB 740 specifically excludes rent for district-owned facilities, even if those facilities were acquired through a means other than a Prop 39 request.

"Charter schools occupying existing school district or county office of education facilities, and charter schools receiving reasonably equivalent facilities from their chartering authority pursuant to Education Code (EC) Section 47614 (Proposition 39) are not eligible for funding under this program."

Making a Request For Facilities Under Prop. 39

The regulations implementing Prop. 39 set forth specific requirements for making a facilities request to a district. In short, a charter school's Prop. 39 request must include

A. A projection of in-district and total ADA and in-district and total classroom ADA, based on ADA claimed in the prior fiscal year, if any, adjusted for expected changes in enrollment in the forthcoming fiscal year, and broken down by grade level and by the school in the district that the student would otherwise attend

B. A description of the methodology for the projections

C. 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 in-district 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 accuracy

D. The charter school's operational calendar

E. Information regarding the specific district school site and/or general geographic area in which the school wishes to locate

F. Information on the school's educational program, if any, that is relevant to facilities (science labs, for example)


The Association has worked with the law firm Middleton, Young & Minney to prepare a facilities request form and instructions for completing the request We suggest you review the form and instructions carefully when preparing your request.

We also recommend that each charter school notify the district of its intent to request a facility under Proposition 39 and request any district forms, instructions or other information that the district may require for a Prop. 39 request. We are aware of several districts throughout the state that have developed their own form or that require charter schools to use a form developed by the CDE. (Scroll down to Facility Administration and Support.)


The form can be used for both a charter petition and Prop 39 as long as the form shows the students' names, addresses, grade level during the year for which the charter school is requesting facilities, and a signature indicating the families' meaningful interest in attending the school. If you are gathering signatures for approval of the charter petition submission, as well as for a Prop 39 application, you should communicate this intent on the signature form(s).

It is important to note that some school districts require applicants to use specific forms when applying for Prop 39. Make sure that you check to see what information the school district requires before gathering signatures.

Relevant Deadlines Under Prop. 39

In addition to meeting the eligibility requirements, there are a variety of dates which must be met for a charter school to preserve its right to district facilities.

Action Deadline
Operating schools and schools planning to open must submit facilities request On or before November 1
Schools planning to open must submit charter petition On or before November 1
Districts must provide to school written objections to ADA projections, if any On or before December 1
Schools must rebut district's objections On or before January 2
Districts must provide preliminary proposal of space On or before February 1
Schools must respond to preliminary proposal No later than March 1
Schools planning to open must have charter approved Before March 15
Districts must provide final notification of space No later than April 1
Schools must reply to district notification No later than May 1

Alternatives To Prop. 39 Facilities

It is imperative that charter schools are in compliance with Prop. 39 requirements to ensure a seat at the table for district negotiations. In some instances it is in both a charter school's and school district's interest to find an alternative to providing or using a district facility. By having a seat at the table, you may be able to negotiate creative alternatives, such as:

Rental Subsidies

Do some leg work and locate cost-effective rental alternatives--districts might be willing to compromise on fair rental subsidies in lieu of district facilities. East Palo Alto High School and Aurora High School negotiated rent subsidies from the Sequoia Union High School District (unfurnished buildings) in exchange for shared facility options in district schools.

PI Transportation and Busing

In both Program Improvement and overcrowded areas, you may suggest the district pay for busing for students to neighborhood charter schools and subsidize school facility costs with the transportation cost savings. If districts are mandated to bus pupils to alternate schools or have overcrowded classrooms, this could represent an opportunity to local charter schools while serving district interests.

Surplus Property

Many districts have property which sits vacant, is used for storage purposes, is listed as surplus or is partially available for non-school use. Charter schools could suggest placing portables on vacant property or renovating non-classroom space (warehouses or administrative offices). Additionally, charter schools are entitled to ask for written notices from the district about potential action to designate property as "surplus" or to lease or sell such surplus property.

Shared Facilities

Particularly in declining enrollment districts, school property is often underutilized and sharing space with a district school or another charter school could be a possibility. Reviewing all the district school sites, talking with school principals and staff, and working collaboratively with local schools could result in options. Even in overcrowded districts, sharing space could be an option when the district has large-acreage school sites. One charter school entered into an agreement with a district to lease a portion of open space at an elementary school for the placement of portable classrooms.

Bond Funds

Charter schools can work with districts to be included on district bond measures. Downtown College Prep, for example, received a percentage of its district's bond monies based on its student population. Some districts have unspent funds from previous bond measures. Negotiate with districts for a share of those funds.

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