01-01-2001

Imagine a student walking down the hallway of a converted warehouse being used as a charter school. The child discovers an area under construction and injures herself. What sort of action can be taken against the school? And who is liable, the sponsoring district or the charter school? Scenarios like this one are possible in many charter schools around the state. What can be done to reduce these types of accidents?

Charter schools are a fairly new concept, developed in the last decade for public education. In allowing charter schools to operate without many of the restrictions imposed on public schools by the Education Code, charter schools gain freedom but may lose some protection afforded by the Code. The Education Code specifies that the charter document or agreement must describe how the school will provide for the health and safety of students.1 However, there are no guidelines governing how the charter school should keep the staff and students safe. With the help of sponsoring school district guidelines, a charter school may limit liability. Guidelines should be written so that potential trouble spots are reviewed by the charter school but don't infringe on the independence of the institutions.

Potential Exposures

Charter schools have different areas of liability that aren't an issue in public schools. There's more room for error because charters are not subject to all the codes and requirements governing public schools. Employment, buildings, Church and State and distance learning issues are just a few areas of concern.

Hiring and firing practices are still a gray area for many charters. Many times, charter school teachers operate with an "at-will" contract. This means the educators can be fired for no reason at all which raises certain liability issues in case the teacher chooses to take action if they are summarily dismissed. There have already been lawsuits involving these issues.

There are many potential liability claims when it comes to providing facilities. Lack of facilities and the cost of maintaining these facilities can be a major burden to charters. Without public funding and no way to levy tax money for buildings, charters have to rely on their operational budget and often find housing in converted retail facilities, warehouses and other structures. Many times, construction is still occurring while students are attending school.

This was the case before the recent passage of Proposition 39. The proposition states that each school district shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school's in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools in the district.2 Director of Governmental Relations for the California Network of Educational Charters, David Patterson, says this can be interpreted in the following ways: The district could rent/lease school buildings to the charters; the district could choose to give a certain amount of money to the charters to build their own buildings without district oversight; or the charter school could work with the district and use the money to construct a new building. Patterson also says there would likely be more partnerships between community organizations and the charter schools.

Separation of Church and State is an issue charters must face that is virtually non-existent in public schools. Due to lack of facilities, some charters have been forced to locate their schools in former church buildings or rented space, such as the Young Men's Christian Association (YMCA). While it is a very common practice for other state and federal programs, such as "Head Start", to be located in community based facilities like churches, traditional public schools have not. The Education Code states that a charter school shall be non-sectarian in its programs, admission policies, employment and all operations.3 However, this religious influence has the potential of affecting the curriculum being taught in a charter. Several charter schools have been established with a "Waldorf" curriculum which may be non-sectarian but certainly addresses spiritual and religious issues.

Distance learning charter schools have challenges unique to themselves. Much of the education may be Internet based, with Internet based interaction between students and teachers coupled with regularly scheduled meetings with a teacher to gauge the student's educational progress. These visits may occur in the student's home which can compromise the safety and integrity of the student and/or the teacher. Also, public schools including charter schools receive funding based on Average Daily Attendance (ADA), or number of students attending the school. There is still a lack of clarity regarding attendance accounting procedures for independence study.

Covering Your Bases

Sponsoring school districts have a challenge when it comes to insuring charter schools. There are no requirements that a sponsoring district provide insurance for charter schools. Some sponsoring districts do provide coverage; others leave it up to the charter to secure their own insurance. It's important that charter agreements state what types of insurance a charter school will maintain to cover possible exposures. The Education Code can provide a basis for determining the types of coverage. Regardless of insurance, the charter schools challenge is to develop policies to reduce liability. Finally, charter schools should name sponsoring districts as additional insured parties for actions or activities of charter schools.

Charter schools can reduce the number of employment practices claims by following certain guidelines. If the charter school does not want to follow district policies in regards to the hiring and firing of employees, handling of sexual harassment complaints and equal opportunity practices, they may consider the resources provided by the California Chamber of Commerce. This includes criminal background checks of school employees as required by law. Despite having flexibility in what can be taught in a charter school, the Education Code requires specific types of credentials of a charter schools teaching staff.4

A plan should be in place for ensuring safe facilities at a charter school. This would be the case if the charter school decides to use funds to construct their own building without district intervention. Ideally, the charter will identify a location of the proposed school(s). Some insurance providers including joint powers authorities conduct a pre-coverage inspection of the facilities and equipment before they approve or accept a charter. This can involve an initial inspection followed by annual reviews. Many JPA's require that facilities and equipment meet acceptable environmental health and safety standards. This usually includes buildings meeting local, state and federal building codes.

Church and State problems can be avoided by having an established curriculum. The First Amendment is clear about separation of Church and State and all charter schools are public entities. While sponsoring districts examine the schools educational programs prior to granting the charter, it is the responsibility of the charter school to ensure that the non-sectarian requirements are fully met. Because of high risk claims associated with Church and State issues, some insurance JPA's apply an increased deductible to charter schools.

Sponsoring districts may share their policies regarding distance learning with charters. For example, if a teacher is required to visit the home of the student, the pupil's parents should be in attendance to remove any suspicion of inappropriate conduct. Also, using a neutral district site can help avoid potential problems. Many sponsoring districts have policies addressing how distance-learning students are tested. An auditable attendance report is as essential for a charter school as it is for district schools.

Looking Ahead

Guidelines like these can help charter schools and their sponsoring district responsibly educate children. Communication between the charter school and sponsoring district is invaluable. Both need to recognize there are potential problems that need to be addressed. Cooperation between the two will reduce the likelihood of paying expensive claims.
There are many risks involved with administering a school. However, with proper guidelines in place, charter schools can successfully operate and be an important asset to the California educational system.

Sponsoring District Guidelines for Charter Schools
(Not a comprehensive list)

Hiring and Firing Practices

Facilities

Church and State

Distance Learning

Insurance

* Information for the article and checklist was compiled in part from Alliance of Schools For Cooperative Insurance Programs (ASCIP), California Department of Education, California Network of Educational Charters (CANEC), Northern California Regional Liability Excess Fund (Nor Cal ReLiEF), North Coast School Insurance Group, Redwood Empire Schools Insurance Group and School Services of California Inc.

Gary Sabol is the Communications Coordinator for Schools Excess Liability Fund (SELF), a statewide joint powers authority providing excess workers' compensation and liability coverage to more than 1,000 California public educational agencies.