By Julie Brown
Copyright © 2002 by University of the McGeorge School of Law
JD, McGeorge School of Law, University of the Pacific
to be conferred May 2003
B.A., Economics, University of the Pacific, 1999
As an increasing number of parents face the burden of finding safe and reliable accommodations for their children after school, there is an increase in demand for educational-affiliated programs to fill that critical time gap. Numerous studies have indicated that the hours between 3:00 PM and 6:00 PM are when children are mostly likely to become victims or perpetrators of crime and violence. There is a need for all parents, but especially single parent households, to have low cost options for after school childcare. Often low income families have children most in need of extra attention to stay focused on education and off the streets.
The After School Education and Safety Program Act of 2002 (ASESP) initiative proposes various program and funding changes to the Before and After School Learning and Safe Neighborhoods Partnership Program which was started in 1998. The current program provides competitive grants for schools to offer educational enrichment programs before and/or after school hours. The grants are termed competitive because there is not enough money to fund all programs that apply for state funds. The main purpose of the After School Education and Safety Program Act of 2002 initiative is to expand the availability of the grant program to every public elementary and middle school in California through State General Fund appropriations. The grants are available to public elementary, middle, and junior high schools, including charter schools. The proposed programs must provide a 50 percent match to the state grant to qualify. The local match money may come from the school district, government agencies, community organizations, or the private sector. Priority is given to funding programs to schools where 50 percent or more of the children are eligible for free or reduced-cost meals through the National School Lunch Program under the United States Department of Agriculture.
For Fiscal Year 2000 - 2001, there were 963 grant programs serving approximately 97,000 students. Delaine Eastin, CA Dept. of Educ. News Release, Substantial Gains Made in Reading and Math for Students in After School Programs, (Feb. 1, 2002) (available at <http://www.cde.ca.gov/news/releases2002.htm>) (accessed May 26, 2002).
A. Current Law - Article 22.5
In 1998, the California Legislature implemented the After School Learning and Safe Neighborhoods Partnership Program to fund the establishment of after school education and enrichment programs. Cal. Educ. Code Tit. 1, D. 1, Pt, 6, Ch. 2, Art. 22.5 (West 2002). The program was recently amended by Assembly Bill 6 to include before school educational program grants. 2001 Cal. Stat. Ch. 545.
The Before and After School Learning and Safe Neighborhoods Partnership Program, Article 22.5, requires grant programs to maintain two requirements: 1) an educational and literacy component to provide tutoring and/or homework assistance, and 2) an educational enrichment component to include recreation and high-risk behavior prevention activities. Id. Grants programs must integrate their educational and literacy components with the school's curriculum, instruction and learning support activities in areas such as language arts, mathematics, history, social science, and science. Id. The educational enrichment component activities may involve the arts, music, physical activity, and health promotion. Id.
Eligible programs are sponsored by a local educational agency or a city, county, or nonprofit organization in partnership with and with the approval of a local education agency. Id. Article 22.5 specifies that program planning should be a collaborative process that includes parents, youth, and representatives of participating school sites, and government agencies such as parks and recreation departments, community organizations, and the private sector. Id.
Staff members must meet the local school district's minimum qualifications of an instructional aide and pass state mandated health and background checks. Cal. Educ. Code §8483.4 (West 2002). In addition, the after school program's site supervisor must be approved by the school's principal. Id. Programs must maintain a student-to-staff ratio of no more than 20 to 1. Id. Programs may be conducted off school sites if the site is a community park or recreational area adjacent to the school site. Cal. Educ. Code §8484.6. (West 2002). Such sites must comply with the same requirements as program's held on school sites. Id.
Elementary after school programs must operate for a minimum of three hours per day
and until at least 6:00 p.m. on every regular school day. Cal. Educ. Code §8483 (West
2002). Middle school after school programs may choose a flexible schedule where students
must attend at least three days a week for a minimum of nine hours. Id. Elementary and middle school before school programs must operate for a minimum of
one and a half hours per day or up to two hours. Cal. Educ. Code §8483.1.
Participating programs are required to submit to the California Department of Education (CDE) annual outcome based data for evaluation, including measures for academic performance, attendance, and positive behavioral changes. Cal. Educ. Code §8484 (West 2002). The CDE may use this information in determining eligibility for grant renewal.
B. Current Funding Provisions of Article 22.5
Current law states that it is the intent of the legislature that a minimum of eighty-five million dollars be appropriated for Article 22.5 grants each year. Cal. Educ. Code §8483.5 (West 2002). For Fiscal Year 2001 - 2002, the Legislature appropriated $117.5 million for the program. Budget Bill, 2001 Stat. Ch. 106.
The CDE gives priority to elementary, middle, and junior high schools where 50 percent or more of students are eligible for free or reduced-cost meals through the school lunch program of the United States Department of Agriculture. Cal. Educ. Code § 8482.5(a) (West 2002).
Approved Article 22.5 programs are eligible to receive a three-year renewable grant, awarded in one-year reimbursements, subject to annual reporting and re-certification. Cal. Educ. Code §8483.7(a)(1)(A) (West 2002). Article 22.5 programs are eligible for up to five dollars per day per student. Id. To receive the reimbursement, the program administrator must receive approval by the Superintendent of Public Instruction based on program results. Id.
The maximum after school program grant amounts are $75,000 for elementary schools and $100,000 for middle and junior high school with provisions for expansion based on large schools and programs that operate during any combination of summer, intersession, or vacation periods. Id. Before school programs are eligible for up to $25,000 for elementary schools and $33,000 for middle and junior high schools. Cal. Educ. Code §8483.75. Article 22.5 specifies that programs are not required to charge fees or conduct individual eligibility determination based on need or income. Cal. Educ. Code §8482.6 (West 2002).
C. Program Changes Proposed by the After School Education and
Safety Program Act of 2002
Proposition 49 will change the Article 22.5 program title to the After School Education and Safety Program. Text of ASESP Act of 2002 §3(a) (available at <http://www.caag.state.ca.us.initiatives.htm>) (accessed May 26, 2002). The initiative's main objective is to increase General Fund appropriation to a level sufficient to make grant money available to every eligible program with an acceptable application. Id.
Proposition 49 expands the possible activities that qualify as educational enrichment and either tutoring or homework assistance. Id. at §6. The measure specifies that schools may offer computer training, fine arts, or physical fitness activities in meeting these requirements. Id. The initiative also expands the collaborative planning groups to explicitly include local law enforcement agencies. Id. at §7.
Proposition 49 eliminates the requirement that programs must be conducted on school sites or community centers adjacent to the school. Id. at §13. An ASESP program may be conducted at any site approved by the CDE. Id. Approval requires the off-site program align the educational and literacy component of the program with participating students regular school program and provide safe transportation for participating students. Id. Under the ASESP initiative, the CDE is required to provide all eligible schools notice of grant availability and the application process. Id. at §9.
D. Funding Changes Proposed by the After School Education and
Safety Program Initiative
The major component of the ASESP initiative is the proposed addition of §8482.55 to the California Education Code. Text of ASESP Initiative at §8. This section contains the proposed funding changes. The proposed increase in available funds for ASESP programs would begin in Fiscal Year 2004 - 2005. Id.
The amount of funds available in any given year under the ASESP Initiative is not automatic; it is based on a spending formula that requires non-Proposition 98 General Fund to increase by more than $1.5 billion over the highest amount allocated in the previous four fiscal years. Citizens for After School Programs, Join Arnold, About the Initiative, Fiscally Responsible and Cost Effective <http://www.joinarnold.com/CostEffective.htm> (accessed May 26, 2002). The initiative was drafted to ensure that it would not deduct from Proposition 98 funding for K - 14 schools and community colleges. Proposition 98 amended the State Constitution by establishing a minimum level of state funding for school and community college districts and transferred to school districts state revenues that exceeded the State's appropriations limit. Proposition 98 also required excess General Fund monies to be used solely for instructional improvement and accountability.
Beginning in Fiscal Year 2004 - 2005, the annual amount of the General Fund appropriation would be the greater of the following two amounts, but not to exceed $550 million:
1. The amount provided to the programs in the preceding fiscal year, or if greater,
2. The amount provided to the program in 2003 - 2004, adjusted for specified annual changes in General Fund spending that do not count towards the state's constitutional funding guarantee for K - 14 education (Proposition 98). Text of ASESP Initiative at §10.
Fiscal Year 2001 - 2002 non-proposition 98 General Fund expenditures amounted to approximately $47 billion. Citizens for After School Programs, <http://www.joinarnold.com>. If this is the highest base fiscal year between 2000 - 2003, the 2004 - 2005, non-proposition 98 General Fund monies would need to increase to $48.5 billion for the ASESP program to begin receiving money. Id.
The ASESP initiative adds a clause that if economic conditions require Proposition 98 funding cuts, ASESP program funding will be cut proportionally. Text of ASESP Initiative at §10.
Under Proposition 49, grants would be capped at lower amounts than under the current Article 22.5 program. Id. at §8. The proposed maximum after school program grant amounts are $50,000 for elementary schools and $75,000 for middle and junior high school with the same provisions for upward adjustment for large schools and programs that operate during any combination of summer, intersession, or vacation periods. Id.
The ASESP initiative allows the California Department of Education to spend 1.5 percent
of the funds allocated in a given year on program evaluations, training, implementation
support, program development, and awarding and monitoring program grants. Id. at §11.
III. Drafting Issues
The After School Education and Safety Act of 2002 clearly states the intent to amend the current Article 22.5 Before and After School Learning and Safe Neighborhoods Partnership Program. Proposition 49 does not appear to have a drafting issue that would cause a challenge to the initiative based on vague funding or programmatic guidelines.
The ASESP initiative does not provide well-defined factors a program should take into consideration when collecting data required by the CDE. This may lead to inconsistent data collection from ASESP programs across the State. Inconsistent data and program evaluations would make it considerably more difficult to accurately determine the overall effectiveness of ASESP programs. The lack of clear guidelines could lead to an inefficient use of resources in collecting and studying data to evaluate the programs as required by the Proposition.
The ASESP initiative recognizes that for effective implementation of the program's intent it is appropriate to allow the Legislature to amend basic provisions of the law. The initiative allows most provisions to be amended by normal bill procedure. Section 8 of the initiative, changing the maximum funding allocation and priority provisions, may be amended by statute passed in each House by two-thirds vote and signature of the Governor. Text of ASESP initiative at §14. Sections 10 and 12 of the initiative, relating to General Fund appropriation and non-interference with Proposition 98 funds, may not be amended by the Legislature. Id.
To prevent the initiative from being struck down as unconstitutional for an unforeseen reason, the initiative includes a standard severability clause. Id. At §15. The clause allows for any provision found unconstitutional that does not affect the fundamental purpose of the initiative to be stricken. This standard severability clause allows the initiative to survive a valid constitutional challenge to a non-fundamental provision of the ASESP initiative. This is a standard clause seen in many initiatives and bills to prevent an entire law from being invalidated based on the unconstitutionality of one provision.
The various funding and programmatic changes to the Before and After School Learning and Safe Neighborhoods Partnership Program proposed by the ASESP initiative do not appear to raise any Constitutional issues under the state or federal constitutions.
A. Advantages of After School Programs and Amendment by the After School Education and Safety Program Initiative
A recent report released by the University of California, Irvine Department of Education found positive improvements in student achievement, attendance, behavior, and substantial cost savings to the State due to the implementation of after school programs. CDE, Substantial Gains Made in Reading and Math for Students in After School Programs (accessed June 26, 2002). Key findings include: large improvements in achievement among the most high-risk students, a direct relationship between gains in math and amount of participation in a program, improvements in school attendance and an overall boost in achievement for students in low-income communities. Id.
The CDE claims there are substantial savings associated with the implementation of after school programs. Id. These savings are mainly the result of reductions in grade repetition by students involved in an after school program. Id.
Cost-savings to the State associated with reductions in grade repetition are projected at more than $20 million annually - savings of such a magnitude that they offset significantly the costs of program growth. Additional savings are likely in association with decreased juvenile crime. These savings and the relatively low cost of the program, in part attributable to the required local match of $1 for every $2 in State funds, make it a cost-effective strategy for addressing the needs of California's students during non-school hours.
University of CA, Irvine, and CDE, Evaluation of Cal.'s After School Learning and Safe Neighborhoods Partnership Program: 1999 - 2001 at 38 (Feb. 1, 2002) (available at <http://www.cde.ca.gov/afterschool>) (accessed May 26, 2002).
Proponents of after school programs advocate increasing resources to assure that all children and youth in California have access to affordable after school programs. Letter from Fight Crime: Invest in Kids to Attorney General Lockyer (Sep. 20, 2001). Fight Crime: Invest in Kids, a national organization, reports that there are not enough state or federal funds to provide after school programs to the most needed school districts in California. Cal.'s After School Choice: Juvenile Crime or Safe Learning Time at p. 36 (available at http://www.fightcrime.org/ca) [hereinafter Fight Crime Report]. The Fight Crime Report notes that many schools have sought money for after school programs only to be denied for lack of funds. Id. In 1999 and 2000, the CDE received double the number of applications it could fund. Id. Additionally, schools that are fortunate enough to receive grants cannot afford to serve all students interested in attending. Id. at 37. Increased funding would also enhance the quality of after school programs by providing increased training, compensation, funding for evaluation, and technical assistance.
In response to possible fiscal concerns, proponents note that the ASESP initiative is drafted to protect Proposition 98 funding and leave room for growth in the state budget to protect organizations that depend on general fund allocations. Political Pulse: Schwarzenegger takes new political cause: he aims to help kids, reduce juvenile crime vol. 17, No. 20 (Bud Lembke & Larry Lynch, Publishers) (Dec. 21, 2001).
B. Disadvantages of the Proposed Increase in General Fund Allocations By the After School Education and Safety Program Act of 2002
The state and federal government fund a variety of programs conducted after schools hours. These after school programs having overlapping objectives and target age groups. Existing programs that overlap with Article 22.5 programs include: Pupil Promotion, Retention & Low STAR Scores program, the Elementary School Intensive Reading Program, the Core Supplemental Instructional Program, Student Academic Partnerships, CA Mentor Program, and other outreach and academic programs. Legislative Analyst Office, Analysis of the 2001 - 2002 Budget Bill: After School Programs (available at http://www.lao.ca.gov) (accessed June 10, 2002).
There are other funds available for after school programs from the state and federal government in the form of "compensatory funds." Id. One such compensatory education program is the Economic Impact Aid program. Id. There is also federal money available through the Leave No Child Behind Act which funds 21st Century Learning Centers. Id. This program also provides grant money to school districts to provide academic enrichment and recreational activities. In review of the Governor's 2001 - 2002 budget, the Legislative Analysts Office [hereinafter LAO] recommended the funding for the Article 22.5 grants be changed into a block grant for disadvantaged schools. The LAO concluded that the budget provided sufficient funding for after school programs. Id.
In review of the ASESP initiative's fiscal impact the LAO concluded that the ASESP initiative forces the state to "over-appropriate" Proposition 98's minimum requirement for education. Letter from LAO to Attorney General Lockyer (Jan. 16, 2002) (available at http://www.lao.ca.gov/initiatives.htm). This would cause a permanent increase in the annual level of state appropriations for K - 14 education. Id. The LAO notes that if the maximum appropriation of $550 million were funded, the CDE would be allowed to spend 1.5 percent (about 8.3 million) for program evaluation, training and support, and grant awarding. Id. This could be seen as an over-appropriation of the amount it would take to run the ASESP grant program. However, it is arguable that as the program grows oversight and implementation costs associated with an increase in participating programs would require such an allocation of resources.
On September 24, 2002, the California Federation of Teachers, one of the largest teachers unions said it will oppose Proposition 49. Jessica Brice, Union Opposes After-School Measure, Associated Press. (September 24, 2002). Opponents contend that Proposition 49 does not give the Legislature enough flexibility by locking up funds. Id. In contention, they note that Proposition 49 does not provide new sources of money and puts a squeeze on a tight educational budget. Others opposing Proposition 49 include the American Association of University Women, the League of Women Voters of California, and the California chapter of the National Organization of Women. Id. It is conceivable that other competitors for non-education money, such as parks or prisons, would also object to fund distribution under Proposition 49. George Skelton, The Terminator's Next Mission: After-School Program Initiative, L.A. Times. B1 (April 11, 2002).
The After School Education and Safety Program Act of 2002, if approved by voters, will attempt to make state grants available to every public elementary and junior high school in California that wants to create an after school program for its students. The proposal allows up to $400 million a year in new money to provide these grants starting in 2004 contingent on sufficient growth in state revenues. The maximum allocation for after school program grants under the ASESP initiative is $550 million. In any given year the actual appropriation is contingent on a number of factors including increase in state revenues and sufficient funding for Proposition 98.
The main concern with this initiative is its fiscal impact. The impact of this initiative on the state's General Fund would be significant. This impact would be offset by the requirement of growth in revenues before additional money is appropriated for after school programs. The amendment appears to be well drafted and flexible to future revision by the Legislature. There appears to be no constitutional or statutory conflicts. There are public policy considerations about the appropriate allocation of state resources. The After School Education and Safety Program Act of 2002 provides voters with the opportunity to express their priorities for the allocation of state resources.