Independent Study and Nonclassroom-Based Instruction:
Summary of Major Compliance Requirements

Charter schools that offer instruction outside of a traditional classroom-based context are often subject to two major sets of laws governing (1) “independent study” and (2) “nonclassroom-based” instruction. The laws governing these two areas are complex, restrictive, vague, difficult to interpret, and even more difficult to apply in practice. Most were enacted in response to alleged or perceived abuses by charter schools and school districts serving students outside of the traditional classroom environment.

What Are “Independent Study” and “Nonclassroom-Based Instruction?”

The definitions of these terms are vaguely defined in law and subject to widely varying interpretation. In general, the regulations governing nonclassroom-based instruction define it as any form of instruction that is not “classroom-based.” The definition of “classroom-based” is rather narrow and is generally understood to include instruction where all four of the following conditions are met:

(1) The charter school's pupils are engaged in educational activities required of those pupils, and the pupils are under the immediate supervision and control of an employee of the charter school who is authorized to provide instruction pursuant to laws governing charter schools.
(2) At least 80 percent of the instructional time offered at the charter school is at the schoolsite.
(3) The charter school's schoolsite is a facility that is used principally for classroom instruction.
(4) The charter school requires its pupils to be in attendance at the schoolsite at least 80 percent of the required annual instructional minutes (these vary by grade level).

The laws governing nonclassroom-based instruction include additional definitions, including but not limited to narrowly defining the term “schoolsite” as a site acquired through any of the following means:

(1) Facilities that are owned, rented, or leased by the charter school principally for classroom instruction;
(2) Facilities provided to the charter school by a school district pursuant to the “Proposition 39” requirements; or
(3) Facilities provided to the charter school free-of-charge principally for classroom instruction pursuant to a written agreement.

Charter schools that fail to meet all four of the principal conditions listed above and/or whose facilities fail to meet at least one of the three definitions of a “schoolsite” are generally deemed by the law to be “nonclassroom-based.” These definitions, while seemingly simple on their face, are often difficult to interpret in practice and therefore subject to frequent dispute and misinterpretation.

The definition of “independent study” in the Education Code is also very vague and confusing. Recent amendments to regulations governing charter school audits appear to have largely “bootstrapped” the definition of “independent study” to be the equivalent of “nonclassroom-based” instruction. Thus, many practitioners are now equating the terms as one-in-the-same and rely on the above definitions of “nonclassroom-based” instruction to also serve as the definition of “independent study.” Pending (2008) efforts to amend and clarify regulations may help to settle this confusing matter in the future.

Nonclassroom-Based Instruction Compliance Requirements

A nonclassroom-based charter school may not receive funding as a charter school unless it meets specified terms of law, generally including, but not limited to, the following:

(1) The school must apply for and obtain a so-called “determination of funding” from the State Board of Education. The process for doing so is briefly outlined below.
(2) The school must adopt and apply conflict-of-interest policies.
(3) The school must certify that its funds are spent principally for the benefit of students and that its contracts and purchases are in the school’s best interest and reflect reasonable market rates.
(4) The school can only claim funding in those instances where attendance is capped at an attendance-to-teacher ratio not exceeding specified local rates or a fixed rate of 25-to-one, whichever is higher.

To obtain a determination of funding, nonclassroom-based schools must periodically gather and submit specified financial data for review by the State Board of Education. These data require the use of a specified account code structure and reporting of revenues, expenditures, fiscal reserves, facilities, and other data. State officials review the data to determine whether the school meets specified spending and other targets. The two primary targets include the following:

• Spending at least 40 percent of specified revenues on salaries and benefits for certificated staff who provide instruction or direct instructional support, and

• Spending at least 80 percent of the budget on “instruction and related services.”

Here too, the definitions of key terms and concepts are often vague and subject to widely-varying interpretation.

If a school meets the above-outlined spending targets and other specified requirements, the school may be awarded a “determination of funding” by the state board. These determinations typically last for two to five years in length and schools must reapply for a new determination when the prior one expires. Schools that fail to meet the above targets and/or other requirements may be subject to a funding cut. Though rare, such cuts can be deep (often up to 30 percent). Failure to meet specified targets and/or failure to apply for and maintain a current determination of funding can result in a complete and catastrophic loss of nearly all funding.

Independent Study Compliance

Schools offering instruction via “independent study” must comply with myriad laws and regulations. Failing to do so may result in audit exceptions, sometimes leading to major or catastrophic fiscal penalties. In general, independent study programs must comply with the following major requirements:

1. Formally adopt and adhere to written independent study policies. These written policies should be drafted with close attention to the laws that list several mandatory elements and should be reviewed and adopted by the school’s governing board after conducting a public hearing. Some of the required elements include (1) specifying the maximum amount of time that may lapse between when work is assigned to a student and when it must be completed and (2) the number of assignments a student may fail to complete before triggering an evaluation of whether independent study is an appropriate instructional mode for the student.

2. Enter into written agreements with all independent study students, teachers, and parents. These agreements should be drafted with very close attention to the details of the laws that require many specific elements. Some of these mandatory elements include (1) the manner, time, and frequency for submitting student assignments, (2) the objectives and methods of study, (3) the methods used to evaluate student work, (4) the specific resources (including materials and personnel) to be available to the student, (5) the maximum amount of time allowed prior to the due date of an assignment and the number of missed assignments that will trigger an evaluation of a student’s placement (in line with the adopted policies), (6) the duration of the agreement which shall be no longer than one semester in length, (7) the number of courses or credit to be awarded upon completion of the work, (8) a statement that independent study is an optional alternative, (9) dated signatures from the student, parent, and instructional staff—entered into prior to the commencement of independent study.

3. Comply with a legal “cap” on the attendance-to-teacher ratio specified in law. Special laws developed for charter schools define the cap at the level of the largest unified (K-12) district in the counties served by the charter school or a fixed ratio of 25-to-1, whichever is higher. This cap must be calculated pursuant to detailed guidelines and the data often do not coincide with other similar “class size” or similar figures. If the charter school’s attendance-to-teacher ratio exceeds this cap, its reported ADA must be reduced to the level designated by the cap.

4. Document the time value of instruction completed by each student and student “daily engagement” to estimate average daily attendance. The instructional staff responsible for monitoring each student’s work must review and estimate a time value to the work completed by each of their students. These data, plus logs or records of students’ daily engagement in instructional activities are required to form the basis for reporting average daily attendance to the state for funding purposes.

5. Claim funding for only those students who are eligible to be funded under independent study. The laws regulating "independent study" also prohibit charter schools from serving students who do not live in the county where the average daily attendance is reported or an adjacent county.

6. Refrain from providing funding or things of value to students that are not provided within the traditional public school system. The law provides that “a charter school may not claim funding for independent study . . . if the charter school has provided any funds or other thing of value to the pupil of his or her parent or guardian that a school district could not legally provide to a similarly situated pupil of the school.” (Education Code Section 51747.3) Prior to the enactment of Section 51747.3, some school districts allegedly offered inducements (“bribes”) in the form of cash or gifts to parents who agreed to enroll their students in home-based independent study programs. The apparent intent of this restriction is to curb such practices in both charter and non-charter schools.

Failure to closely adhere to any of the above-listed laws and regulations concerning nonclassroom-based instruction and/or independent study is a potentially grave matter for a charter school and may result in the loss of some or all of the funding that might otherwise be claimed by the school. This includes seemingly minor and/or inadvertent non-compliance. Given the potentially severe consequences for failure to comply, charter schools engaging in independent study should closely monitor amendments to and varying interpretation of the laws and regulations governing independent study.

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