(Alameda County Super. Ct. No. RG 07353566) Trial Judge: Honorable Kenneth Mark Burr.
The opinion of the court was delivered by: Rivera, J.
CERTIFIED FOR PUBLICATION
Charter schools are public schools that operate independently from, but with oversight by, the school districts or county boards of education that approve their charters. Before 2002, charter schools operated without geographic restrictions; a school chartered in Los Angeles could operate "satellite" campuses as far away as Palo Alto or Mendocino.*fn1 In 2002, after it came to light that a school chartered in Fresno but operating satellites in far-flung locations had accumulated $1.3 million in debt and was involved in other irregularities,*fn2 the Legislature amended the Charter Schools Act of 1992 (Ed. Code,*fn3 § 47600 et seq.) (CSA) to require that charter schools be located within the districts or counties where they are chartered (see, e.g., §§ 47605, subd. (a)(1), 47605.1). The Legislature also added section 47605.8. Subdivision (a) authorized the State Board of Education (the State Board) to approve statewide charters that would allow a school to operate without the geographic restrictions. Subdivision (b), however, provided that the State Board could not approve a statewide charter unless it first made a finding that "the proposed state charter school will provide instructional services of statewide benefit that cannot be provided by a charter school operating in only one school district, or only in one county."
In 2007 the State Board approved a statewide charter for Aspire Public Schools, Inc. (Aspire). The California School Boards Association (CSBA) and others filed an action challenging this approval, contending that the State Board failed to determine and make a finding that Aspire's instructional services of a statewide benefit could not be provided through individual charters from local school districts. The State Board and Aspire demurred. They contended, and the trial court ruled, that section 47605.8, subdivision (b) requires the State Board to find the proposed charter school will provide "instructional services of statewide benefit," but does not require the Board to find, in addition, that the statewide benefit could not be provided through locally approved charters. We conclude that such a finding is required and, accordingly, we reverse.
The petition and complaint contains two other causes of action seeking mandamus. Petitioners allege: (1) the State Board has failed and refused to enforce the conditions of approval imposed on Aspire's charter and should be compelled to do so; and (2) the State Board used policies and procedures in connection with its consideration of statewide charter petitions that have not been adopted in accordance with the Administrative Procedure Act (Gov. Code, § 11340 et seq.) (APA) and, therefore, the State Board should be compelled to set aside its approval of Aspire's charter. The trial court sustained demurrers to these causes of action. We reverse as to these claims as well.
CSBA, the California Teachers' Association, the Association of California School Administrators, and the Stockton Unified School District (SUSD) (collectively referred to as petitioners) sued the State Board as respondent/defendant and Aspire as real party in interest, seeking a writ of mandate and injunctive and declaratory relief. The State Board and Aspire will be referred to collectively as respondents.
The State Board is the "governing and policy making body for the California Department of Education [CDE]." Aspire is a nonprofit corporation that operates numerous charter schools under charters approved by local school districts or county boards of education, including schools in the Los Angeles Unified School District (LAUSD) and in the SUSD.
II. STATUTORY AND REGULATORY SCHEME
This controversy can best be understood within its statutory framework. We begin, therefore, with a summary of the relevant portions of the CSA and related regulations.
In 1992 the Legislature enacted a statutory scheme to allow the establishment and operation of charter schools. (§ 47600 et seq.) The intent was to provide opportunities for teachers, parents, and students to establish schools that operate independently from the school district in order to improve learning; create learning opportunities, especially for those who are academically low-achieving; encourage innovative teaching methods; create new opportunities for teachers; provide parents and students expanded choices in the types of educational opportunities available; hold the charter schools accountable for meeting quantifiable outcomes; and provide "vigorous competition within the public school system to stimulate continual improvements in all public schools." (§ 47601.)
A charter school is established by submitting to the governing board of a school district a petition signed by a number of parents equal to at least half of the proposed enrollment, or signed by a number of teachers equal to at least half the number of teachers anticipated at the school. (§ 47605, subd. (a)(1).) The petition must contain a "reasonably comprehensive" description of numerous pedagogical, administrative, and financial components; and myriad other provisions demonstrating adequate plans for good governance, proper testing, an appropriate disciplinary system, financial reporting, and regular consultations with parents. (Id., subd. (b)(5)(A)-(P).)
After a public hearing (§ 47605, subd. (b)), the district's board decides whether to grant or deny the petition, "guided by the intent of the Legislature that charter schools are and should become an integral part of the California educational system and that establishment of charter schools should be encouraged." A district board's discretion to deny a charter petition is limited. The statute provides that a school district "shall grant a charter . . . if it is satisfied that granting the charter is consistent with sound educational practice." (Ibid., italics added.) Similarly, the district board can deny the petition only if it makes "written factual findings, specific to the particular petition, setting forth specific facts to support one or more of the following findings: [¶] (1) The charter school presents an unsound educational program . . . . [¶] (2) The petitioners are demonstrably unlikely to successfully implement the program set forth in the petition. [¶] (3) The petition does not contain the number of signatures required . . . . [¶] (4) The petition does not contain an affirmation [that the school will be tuition-free, nonsectarian, and nondiscriminatory]. [¶] (5) The petition does not contain reasonably comprehensive descriptions of [each of the statutorily required components]." (Ibid.)
If the district's board denies the petition, the petition may be submitted to the county board of education--in effect, an appeal of the denial--which must grant or deny the petition applying the same statutory requirements. If the county board denies the petition, it may be submitted to the State Board, which must also apply the same statutory standards. (§ 47605, subd. (j)(1).) The body that grants the charter is the chartering authority and is required to carry out statutorily mandated oversight duties. (§ 47604.32.)
In 2002 the Legislature amended the CSA. Significant among the amendments was the addition of stringent geographical restrictions for the operation of charter schools. (See §§ 47605, subd. (a)(1), 47605.1; Stats. 2002, ch. 1058, §§ 6, 7, No. 12 West's Cal. Legis. Service.)*fn4 The impetus behind those amendments, which were sponsored by the State Superintendent of Public Instruction, was explained in an analysis prepared for the Senate Committee on Education. "The [State Board] has in practice allowed single charters to be used to authorize the operation of multiple school sites, which are called 'satellites' of the charter. Satellites have often operated at considerable distance from the 'home' charter. Early this year the Gateway Charter School, chartered by the Fresno Unified School District, was the subject of several newspaper articles and an ongoing law enforcement investigation, concerning allegations that satellites of the Gateway School were operating in violation of several laws. Gateway's charter was revoked by the district governing board who cited the difficulties of keeping track of remote (satellite) operations as a reason why various anomalies were not discovered sooner." (Sen. Education Analysis of Assem. Bill No. 1994, supra, p. 2.) As stated in a comment to another analysis, "[b]y placing a geographic restriction on a charter school's operations, this bill would help clarify a district's sovereignty over public education provided within its boundaries and [would] enhance oversight of charter schools." (Sen. Com. on Appropriations, Dept. of Finance, Analysis of Assem. Bill No. 1994 (2001-2002 Reg. Sess.) as amended Aug. 15, 2002, p. 1 (Sen. Finance Analysis of Assem. Bill No. 1994).)
The 2002 amendments provided that, from and after July 1, 2002, a school chartered by a district must identify a "single charter school that will operate within the geographic boundaries of that school district." (§§ 47605, subd. (a)(1), 47605.1, subd. (a)(1).) The school may operate at multiple sites within the district so long as each location is identified in the petition. (§ 47605, subd. (a)(1).) A school chartered by a county board of education or by the State Board after an appeal from a denial by the school district "shall be subject to the same requirements concerning geographic location that it would otherwise be subject to if it receives approval from the entity to whom it originally submits its petition." (Id., subd. (j)(1).)*fn5
There are limited exceptions to these restrictions. For example, if a charter school has unsuccessfully attempted to locate a single site within the district to house its entire program, it may establish one site outside the district, but within the county where the district is located. (§ 47605.1, subd. (d)(1).) Nothing in the CSA, however, either prohibits or discourages the establishment and operation of a charter school in multiple districts around the state under a series of district- or county-approved charters.
The 2002 amendments added a new provision authorizing a county board of education to approve a "countywide" charter school in the first instance, but the school must operate in "one or more sites within the geographic boundaries of the county." (§ 47605.6, subd. (a)(1).) A countywide charter petition may not be approved unless the county board finds that "the educational services to be provided by the charter school will offer services to a pupil population . . . that cannot be served as well by a charter school that operates in only one school district in the county." (Ibid.)
The amendments also authorized the State Board to approve "state charter school[s]" which would be permitted to operate without geographical restrictions. (§ 47605.8, subd. (a).) Similar to the limitation imposed on county boards as chartering agencies, the Legislature directed that the State Board "may not approve a petition for the operation of a state charter school . . . unless [it] finds that the proposed state charter school will provide instructional services of statewide benefit that cannot be provided by a charter school operating in only one school district, or only in one county." (Id., subd. (b).)*fn6
In accordance with statutory directives (§ 47605.8, subd. (a)), the State Board promulgated three regulations for the implementation of section 47605.8 (Cal. Code Regs., tit. 5,*fn7 §§ 11967.6, 11967.7, 11967.8.)*fn8 Insofar as pertinent here, regulations section 11967.6 provides a nonexclusive interpretation of the statutory phrase "instructional services of statewide benefit" (subd. (b)), and requires that the charter petition's plan for instruction describe "how the instructional services will provide a statewide benefit . . . that cannot be provided by a charter school operating in only one school district, or only in one county" (subd. (a)(4)). Regulations section 11967.6 prescribes that a statewide charter applicant must demonstrate it has already been successful in operating charter schools (subd. (a)(7)), must describe how local community input for each school was or will be solicited (subd. (a)(8)), and must identify the school districts and counties in which each school will be located (subd. (a)(14)(B)), among other requirements (see, generally, subd. (a).)
Beyond this, the regulations do not set forth any procedures or guidelines used by the State Board or its constituent entities to review, evaluate, recommend, or approve statewide charter petitions.
Sometime in 2005 Aspire submitted a petition for a statewide charter. The petition proposed that Aspire would initially open two kindergarten through eighth-grade schools, one in the LAUSD and one in the SUSD, and by 2010 it would add five more schools, including high schools.
Prior to the submission of Aspire's petition, the chair of the Advisory Commission on Charter Schools (ACCS) reviewed a draft of the petition and provided advice to Aspire's CEO on how the petition could be reworked in order to meet statutory requirements and receive State Board support. The ACCS was created in 2001, as authorized by statute, and serves as an advisory body to the State Board.*fn9
During 2005-2006, Aspire's petition was reviewed by CDE staff. There is no record of what transpired with respect to this review, although it ultimately resulted in a report to the State Board, described post. Aspire's petition was also reviewed by the ACCS. In November 2005 the ACCS held a public meeting to consider, inter alia, Aspire's petition. After hearing Aspire's presentation and after a discussion among ACCS's members, the ACCS voted unanimously to recommend to the State Board that the petition be approved, with "the changes and conditions proposed by CDE staff." For reasons not explained in the record, Aspire's petition was not then forwarded to the State Board. Rather, it was again discussed briefly one year later, at the ACCS meeting of November 2006. The matter was not included on ACCS's published agenda. After this meeting Aspire's petition was sent on to the State Board.
Prior to the State Board's consideration of the petition, Fabian Nuñez (then Speaker of the Assembly) and Don Perata (then President Pro Tempore of the Senate) sent a letter to the Board requesting a moratorium on approval of statewide charter schools until the scope of the enabling statute was clarified. Assemblymember Nuñez and Senator Perata took the position that the statute governing statewide charters was intended to apply only to charter schools that, by necessity, served a statewide student populace, such as the schools operated by the California Conservation Corps and federal job corps training agencies, and was not intended to apply to schools that merely sought to operate in several different locations throughout the state. The letter stated: " 'A multiple location charter school could and should seek approval of petitions in each school district or county office where it intend[s] to operate schools," this being "consistent with the principles of local control in the charter school law generally, and in [the 2002 amendment] more specifically. . . .' "
The State Board's staff prepared a report describing Aspire's petition for a statewide charter. The report updated Aspire's accomplishments in the arenas of curriculum, teacher induction, and delivery of special education, and recommended approval of the petition, subject to numerous conditions, including the condition that "[i]f any deadline specified in these conditions is not met, approval of the statewide benefit charter is terminated unless the [State Board] deletes or extends the deadline not met." The staff report attached the CDE staff's "petition review form" which commented on the strengths and weaknesses of Aspire's petition, reviewed each of the required elements of Aspire's charter petition, and recommended various conditions of approval.
The State Board considered Aspire's petition at its January 11, 2007, meeting. Aspire's CEO made a presentation, followed by brief statements from a number of speakers both supporting and opposing the petition, followed by a discussion among members of the Board. The Board's deliberations centered primarily on how to interpret the finding requirement of section 47605.8, subdivision (b), a matter of some dispute.*fn10 Ultimately, the petition was approved, subject to the conditions proposed by CDE. Two board members voted to deny the petition because the Board had failed to address the issue of whether Aspire could accomplish its program through locally chartered schools.
By letter dated March 30, 2007, CSBA requested that the State Board rescind its approval of Aspire's statewide charter, on the ground that "the [State Board] failed to make adequate findings in support of its conclusion that Aspire was providing educational service of a statewide benefit that could not be provided through a locally approved charter, and that it appeared to be applying an incorrect legal standard in making such a finding." The State Board did not reply to the letter and did not rescind the approval.
Aspire's charter, as approved, contained several conditions relating to the opening and operation of the school sites, including the requirement that a memorandum of understanding (MOU) be executed to govern specific operational details. In March 2007, Aspire's CEO filed an amended charter with the State Board and executed an MOU between Aspire and CDE. According to the petition and complaint, "[t]he MOU contained approximately 22 pages of requirements with which Aspire was required to comply, almost all of which were required to be completed in advance of the opening of the schools in 2007 and which were made conditions of opening these schools." Based upon documents received by CSBA from the State Board in June and July of 2007, there was "almost [a] complete absence of compliance with the conditions of the MOU. In particular, LAUSD and SUSD [where Aspire's first two statewide charter schools were to be located] were not provided with the required 120 day notices for commencement of instruction." Additionally, it appeared there was no CDE determination that the proposed school facilities were in compliance with the MOU, nor did LAUSD or SUSD receive any notice of such determination, as required by regulations. According to petitioners' information and belief, as of October 2007 Aspire was operating schools in the LAUSD and the SUSD "notwithstanding the virtually complete failure to meet the conditions imposed by the charter and MOU."
A. The Petition and Complaint
In October 2007, petitioners filed this action. They alleged, first, that the State Board's decision to approve Aspire's statewide charter was arbitrary and capricious and an abuse of discretion because the State Board misinterpreted the applicable statute and its finding was not supported by any evidence. CSBA requested a writ of mandate ordering the State Board to vacate the approval of Aspire's charter at the end of the academic year, and ordering compliance with section 47605.8 with respect to future state charter school petitions.
In the second cause of action petitioners alleged that the State Board had a clear, present, and ministerial duty to enforce the conditions imposed on Aspire's charter and contained in the MOU and that its failure to do so, and its failure to rescind or take steps to terminate Aspire's charter, entitled CSBA to a writ of mandate ordering the State Board to rescind its authorization of Aspire's charter at the close of the school year.
In the third cause of action, petitioners alleged that the State Board used "policies and procedures" that were not adopted in compliance with the APA. More specifically, petitioners alleged that, although the State Board adopted regulations specifying the content of a statewide charter petition, it had never adopted regulations setting forth the procedures for review of such a petition--for hearings, amendments, or objections--nor for the role of the ACCS in reviewing the petitions. In the absence of such regulations, CSBA alleged, the policies and procedures used to approve Aspire's statewide charter were invalid and, therefore, the charter must be rescinded.
In their fourth and fifth causes of action, petitioners also sought injunctive and declaratory relief relating to these issues.
Aspire demurred to the second cause of action, and the State Board filed a separate demurrer to the third cause of action. The trial court sustained both demurrers, with leave to amend. CSBA did not file an amended complaint.
The State Board and Aspire then filed a joint demurrer to the first, fourth, and fifth causes of action. The central issue was whether the State Board's approval of Aspire's statewide charter petition was contrary to law, because it had made no finding, nor was there any evidence in the record to support a finding, that Aspire's instructional services of statewide benefit could not be provided through locally chartered schools.
The joint demurrer was sustained without leave to amend.*fn11 The trial court concluded that the State Board's approval of the statewide charter was not contrary to law because "[n]either the statutory scheme nor the regulations support Petitioners' contention that the [State Board] was required to find that Aspire's ...