At what point does reasonable state regulation of private schools become unreasonable? For an object lesson in legislative overreach, consider the case of AB 762 (Lee), a bill that's currently making its way through the California Legislature. What began as a proposal to effect a limited extension of existing law has morphed into an unnecessary, unfunded, and unprecedented form of state oversight. What is AB 762, and what happened?

The story begins with the construction of a Bay Area private school on property directly adjacent to a concrete plant. In seeking a permit to build on the location, the school cited a health risk assessment score for the surrounding area, which appeared on the Bay Area Air Quality Management District's (BAAQMD) website. Only after the city issued its permit and the school was in operation was it learned that the BAAQMD's health risk assessment evaluation was based upon inaccurate information. As it turned out, the owner of the concrete plant had erroneously reported production of 268.8 tons of concrete in 2018, when the actual total was 98,000 tons. Oops!

The story was reported by an NBC television investigative team lead by reporter Bigad Shaban. Apparently, the owner of the concrete plant had made an honest mistake, which was compounded by the BAAQMD's reliance upon the erroneous information. Here too, the BAAQMD wasn't guilty of anything more than an unintentional oversight. These lapses paved the way for the issuance of the permit required to construct the private school. While there was no malfeasance, there was plenty of embarrassment. As often happens, in an effort to right a wrong attributable to simple mistakes and lapses of judgment, the BAAQMD concluded that a new statewide law was required to protect children and adults on private school campuses from exposure to toxic materials. A willing author was found in the person of former State Assemblymember Kansen Chu (D - Fremont), in whose district the private school and concrete plant were located, and AB 2882 - the 2020 predecessor bill to AB 762 - was born.

Before AB 2882 was introduced, its sponsor - the BAAQMD - reached out to the California Association of Private School Organizations to relate its the story of its origin, and to share a mock-up draft of the bill's proposed text in the hope of garnering support. CAPSO's Public Policy Committee, officers, directors and remaining member-organization representatives were given ample time to evaluate the proposed legislation. In essence, and as explained by a BAAQMD staff member, the bill proposed the creation of an additional step in the process to be followed by entities seeking to acquire sites upon which private schools are to be constructed. The additional safeguard essentially requires notification and consultation with air quality management districts or similar bodies, so as to obtain assurance that a proposed school site is free of exposure to known sources of toxicity.

Concluding that the bill's provisions were "sensible, reasonable, and practical," CAPSO's leaders recommended a "Support" position on AB 2882, and such a position was conveyed in writing to the bill's author, and to the policy committees before which the measure was heard. AB 2882 breezed its way through the Assembly without opposition, only to languish in the Senate owing to the severe reduction in the number of bills taken up by legislators once the full complement of COVID-19 protections had been put in place. Were it not for the pandemic, AB 2882 would almost certainly have become law in a simplified form CAPSO would have continued to support. But that was then...

(1) The governing board of a private school, before acquiring any site on which it proposes to construct any school building shall have the site, or sites, under consideration investigated by competent personnel to ensure that the final site selection is determined by an evaluation of all factors affecting the public interest and is not limited to selection on the basis of raw land cost only. If the prospective schoolsite is located within the boundaries of any special studies zone or within an area designated as geologically hazardous in the safety element of the local general plan as provided in subdivision (g) of Section 65302 of the Government Code, the investigation shall include any geological and soil engineering studies by competent personnel needed to provide an assessment of the nature of the site and potential for earthquake or other geologic hazard damage.

(2) The geological and soil engineering studies of the site shall be of a nature that will preclude siting of a school in any location where the geological and site characteristics are such that the construction effort required to make the school building safe for occupancy is economically unfeasible. No studies are required to be made if the site or sites under consideration have been the subject of adequate prior studies. The evaluation shall also include location of the site with respect to population, transportation, water supply, waste disposal facilities, utilities, traffic hazards, surface drainage conditions, and other factors affecting the operating costs, as well as the initial costs, of the total project.

The National Assessment of Educational Progress (NAEP), also known as "The Nation's Report Card," is renowned for its assessments of what the nation's students know and are able to do in reading, math, and other content areas such as U.S.history, civics, writing, technology and engineering literacy, and more. Perhaps less known is that NAEP has been collecting and analyzing nationally representative data showing which schools were more likely to maintain continuity of in-person learning opportunities during the course of the COVID-19 pandemic. The results, as summarized in this NAEP Blog article, are clear.

During the month of February, 2021, schools (both public and private) across the country participated in a survey conducted by NAEP's "parent organization," the Institute of Education Studies. As reported in the aforementioned blog:

"The results showed that private schools offered their students in-person learning opportunities at much larger rates than public schools. Ninety-one percent of fourth-graders and eighty-five percent of eighth-graders attended private schools that offered in-person learning opportunities to all students. In contrast, 50 percent of fourth-grade and 42 percent of eighth-grade public students attended schools that did so."

These data will acquire additional significance when future NAEP assessments examine the extent to which continuity of in-person learning opportunities, hybrid learning, and distance-only learning were associated with various learning outcomes.

In other NAEP news, the results of the 2019 Science Assessment were released yesterday (May 25, 2021).  You can view the results, here.

• Learning with exemplary history and political science scholars and mentor teachers
• A deep dive into U.S. constitutional history and principles
• Engagement in research and a congressional hearing simulation
• Interaction with peers from across the country
• Virtual field trips to national historical sites
• A stipend of $800 for teachers and $300 for students and a certificate of completion

Who Can Apply: This opportunity is for high school American history and civics teachers and high school students, preferably students going into the eleventh or twelfth grade in the fall of 2021.

Learn More and Apply by June 1: www.civiced.org/academies

On May 12, 2021, private schools throughout California received word, via an email sent from the California Department of Education, that their applications for federal Emergency Assistance to Non-Public Schools (EANS) funding had been approved. The notifications also revealed the amount of funding each school was eligible to receive in the form of services and/or assistance. The amounts were of unprecedented magnitude: a basic per-pupil allocation of approximately $1,100, with each student hailing from a low-income household generating an additional 20 percent.  Exciting as this news was, chances are better than not that much of the money will never find its way to its intended beneficiaries: children whose academic progress and sense of well-being have been disrupted by the COVID-19 pandemic. 

EANS was enacted as part of the Coronavirus Response and Relief Supplemental Appropriations Act of 2021, a massive federal stimulus bill that designated a total of $2.75 billion to help nonprofit private schools and the students they serve recover from the deprivations wrought by the pandemic. California's share of the total federal EANS appropriation amounted to $187.5 million, with up to

$937,379 available to be reserved for administration of the program. Application for assistance under EANS was limited to nonprofit private schools that had neither participated in the first round of Paycheck Protection Program funding, nor planned to apply for the second round. Every school deemed ineligible to apply for EANS benefits served to increase the eventual per-pupil allocation available to approved applicants.

The next edition of the CAPSO Midweek E-Mailer will be published on June 23, 2021.