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Governing Board of Ripon Unified School District v. Commission on Professional Conduct

September 29, 2009

GOVERNING BOARD OF RIPON UNIFIED SCHOOL DISTRICT, PLAINTIFF AND RESPONDENT,
v.
COMMISSION ON PROFESSIONAL CONDUCT, DEFENDANT; THERESA MESSICK, REAL PARTY IN INTEREST AND APPELLANT.



APPEAL from a judgment of the Superior Court of San Joaquin County, Lauren P. Thomasson, Judge. Affirmed. (Super. Ct. No. CV032098).

The opinion of the court was delivered by: Nicholson, J.

CERTIFIED FOR PUBLICATION

We address in this appeal a school district‟s authority to impose a new condition of employment on its teachers in order to satisfy a legislative mandate. State law requires all public school students who are not fluent in English to be taught by teachers who have been certified to teach such English learners. A school district must also ensure that English learners have equal access to all of a school‟s programs.

To meet these directives, plaintiff Governing Board of Ripon Unified School District (District) adopted a rule requiring all of its teachers to become certified to teach English learners. It also entered into an agreement with the teachers union to impose this requirement as well as pay for the cost of the training and provide an additional stipend. Failure to comply with the directive would ultimately result in termination.

Real party in interest Theresa Messick is the only music teacher at Ripon High School. She refused to obtain the certification, and the District eventually began proceedings to terminate her employment. An administrative law judge determined the District lacked authority to impose the requirement on Messick, but the trial court granted the District‟s petition for writ of mandate and authorized it to proceed with termination proceedings. Messick appeals the trial court‟s judgment, and we affirm.

FACTS

Under federal law, a school district must ensure its students learning the English language are provided equal participation in its programs. The federal Equal Educational Opportunities Act of 1974 (20 U.S.C. § 1703) prohibits school districts from denying equal educational opportunity to an individual on account of his race, color, sex, or national origin by failing "to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs." (20 U.S.C. § 1703(f).)

Under state law, students are to be taught English "as rapidly and effectively as possible." (Ed. Code, § 300, subd. (f).) A child who is not proficient in English is designated as an English learner (EL). (Ed. Code, § 306, subd. (a).) EL students are initially taught English under a specially designed curriculum. (Ed. Code, § 305.) They are regularly assessed and, once sufficiently fluent, are moved into regular classrooms. However, they continue to be designated as EL students until they have reached a proficiency level equal to native English speakers. (Ed. Code, § 313.)

Public school teachers are required to be specially certified to teach EL students. (Ed. Code, §§ 44253.3, 44253.4, 44253.10.) The State Department of Education monitors and sanctions school districts who assign an EL student to a teacher who is not certified to teach EL students. (Ed. Code, §§ 44258.9, 45037.)

Messick is employed by the District as a permanent certificated teacher. She holds a single subject teaching credential in music that was issued to her in 1985 for life.

She is assigned to Ripon High School, where she serves as that school‟s only music teacher.

In May 2002, the State Department of Education determined the District was out of compliance with state law for the 2001-2002 school year because the District had assigned EL students to classes taught by teachers who lacked EL certification. (See Ed. Code, § 44253.1.)

The District responded to the compliance audit by developing an EL Plan, which required all certificated teachers to sign a written commitment agreeing to obtain EL certification.*fn1 The District also negotiated an agreement with the Ripon Unified School District Teachers Association (teachers union) that all certificated staff obtain EL certification by December 30, 2005, or else resign or be terminated. The District agreed to pay for the training if the teacher obtained it through the county office of education, and it agreed to provide the teachers an additional $400 stipend.

Messick is not certified to teach EL students. After the agreement with the teachers union was reached, the District repeatedly asked Messick to sign a written commitment to receive the EL training. Messick refused to sign the commitment or obtain the training. The District claims Messick ultimately was the only teacher in the District who refused to take the training.

In January 2006, the District began termination proceedings against Messick. (Ed. Code, § 44934.) It filed a written statement of charges charging her with unprofessional conduct, evident unfitness for service, and persistent violation of or refusal to obey the school laws of the state or reasonable regulations prescribed by the Board of Education or the governing board of the District. (Ed. Code, § 44932, subds. (a)(1), (a)(5), (a)(7).)

Messick filed a motion to dismiss the District‟s statement of charges with defendant Commission on Professional Competence. The administrative law judge granted Messick‟s motion and dismissed the accusation.

The District petitioned the trial court for a writ of administrative mandate. The trial court issued the writ and ordered the administrative decision to be set aside. It concluded the District had authority to enter into the agreement with the teachers union, and also had ...


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