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California School Boards Association et al v. State Board of Education et al

December 30, 2010


(Super. Ct. No. 34200800016957CUWMGDS) APPEAL from a judgment of the Superior Court of Sacramento County, Timothy M. Frawley, Judge. Affirmed in part and reversed in part.

The opinion of the court was delivered by: Cantil-sakauye , J.




Middleton Young & Minney, Paul C. Minney; Procopio Cory Hargreaves & Savitch, Gregory Victor Moser for Intervenor and Appellant.

In 2000, the voters of this state approved Proposition 39, which, among other things, amended Education Code section 47614*fn1 to require public school facilities to be shared fairly among all public school pupils, including those in charter schools. (Prop. 39, as approved by voters, Gen. Elec. (Nov. 7, 2000); § 47614, subd. (a).) This case considers the validity of various regulations adopted by the State Board of Education (State Board) pertaining to a public school district's sharing of its facilities with charter schools. We conclude the challenged regulations are valid. We shall affirm the portion of the trial court's judgment that upheld the majority of the challenged regulations and reverse the portion of the judgment that set aside several of the regulations.


The Legislature adopted the Charter Schools Act of 1992 (§ 47600, hereafter Charter Schools Act) to "provide opportunities for teachers, parents, pupils, and community members to establish and maintain schools that operate independently from the existing school district structure . . . ." (§ 47601.) The Legislature intended charter schools to be a means of (1) improving student learning; (2) increasing learning opportunities, especially for low-achieving students; (3) encouraging the use of different and innovative teaching methods; (4) creating new professional opportunities for teachers; (5) offering parents and students more choices within the public school system; and (6) giving schools a way to change from a rule-based to a performance-based accountability system. (Id., subds. (a)-(f); Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1130-1131.) In 1998, the Legislature added a seventh goal to this list: to "provide vigorous competition within the public school system to stimulate continual improvements in all public schools." (§ 47601, subd. (g), added by Stats. 1998, ch. 34, § 1.)

A charter school may be created a number of different ways under the Charter Schools Act. A petition to establish a charter school may be granted by a school district's governing board after the petition has been circulated and signed either by a number of parents or legal guardians of students that is equivalent to at least 50 percent of the number of students that are estimated will be enrolled in the charter school in the first year or a number of teachers that is equivalent to at least 50 percent of the number of teachers the charter school estimates will be employed at the school in the first year. (§ 47605, subds. (a)(1) & (b).) A petition to convert certain existing public schools to a charter school may be granted by a school district's governing board after the petition has been circulated and signed by not less than 50 percent of the permanent status teachers currently employed at the public school to be converted. (Id., subds. (a)(2) & (b).) If the governing board of a school district denies a petition for a charter school, the petition may be submitted to and granted by the applicable county board of education or the State Board. (Id., subd. (j).) A petition may also be submitted directly to a county board of education or the State Board. (§§ 47605.5, 47605.6, 47605.8.)

In addition to charter schools formed under the Charter Schools Act, parents of pupils in certain under-achieving schools may apply directly to the State Board to allow them to establish a charter school "at the existing school site." (§§ 52055.5, subd. (b)(3)(B); 52055.55, subd. (b)(3); 52055.650, subd. (h)(2)(B).)

Prior to the adoption of Proposition 39, section 47614 provided: "A school district in which a charter school operates shall permit a charter school to use, at no charge, facilities not currently being used by the school district for instructional or administrative purposes, or that have not been historically used for rental purposes provided the charter school shall be responsible for reasonable maintenance of those facilities." (Stats. 1998, ch. 34 (A.B. 544), § 15.)

Proposition 39 changed this limited obligation of a school district to provide facilities to a charter school. The voters of California expressed the intent "that public school facilities should be shared fairly among all public school pupils, including those in charter schools." (§ 47614, subd. (a), italics added.) Post-Proposition 39, section 47614, subdivision (b), now provides: "Each school district shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school's in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district. Facilities provided shall be contiguous, furnished, and equipped, and shall remain the property of the school district. The school district shall make reasonable efforts to provide the charter school with facilities near to where the charter school wishes to locate, and shall not move the charter school unnecessarily. (Italics added.)

Section 47614 sets forth certain parameters for the school district and the responsibilities of the charter schools. Section 47614 allows a school district providing facilities to a charter school to "charge the charter school a pro rata share (based on the ratio of space allocated by the school district to the charter school divided by the total space of the district) of those school district facilities costs which the school district pays for with unrestricted general fund revenues. The charter school shall not be otherwise charged for use of the facilities. No school district shall be required to use unrestricted general fund revenues to rent, buy, or lease facilities for charter school students." (§ 47614, subd. (b)(1).)

Section 47614 requires each charter school desiring facilities from a school district to each year "provide the school district with a reasonable projection of the charter school's average daily classroom attendance by in-district students for the following year. The district shall allocate facilities to the charter school for that following year based upon this projection. If the charter school, during that following year, generates less average daily classroom attendance by in-district students than it projected, the charter school shall reimburse the district for the over-allocated space at rates to be set by the State Board of Education." (§ 47614, subd. (b)(2).) A school district may deny facilities requests based upon projections of fewer than 80 units of average daily classroom attendance for the year. (Id., subd. (b)(4).)

Critical to this case, section 47614 also provides: "The State Department of Education shall propose, and the State Board of Education may adopt, regulations implementing this subdivision, including but not limited to defining the terms 'average daily classroom attendance,' 'conditions reasonably equivalent,' 'in-district students,' 'facilities costs,' as well as defining the procedures and establishing timelines for the request for, reimbursement for, and provision of, facilities." (§ 47614, subd. (b)(6), italics added.)

The State Board's rule-making authority in section 47614 complements its general authority in section 33031 to "adopt rules and regulations not inconsistent with the laws of this state . . . (c) for the government of the day and evening elementary schools, the day and evening secondary schools, and the technical and vocational schools of the state, and (d) for the government of other schools, excepting the University of California, the California State University, and the California Community Colleges, as may receive in whole or in part financial support from the state."

In 2002, the State Board adopted regulations to implement the provisions of section 47614. (Cal. Code Regs., tit. 5, § 11969.1 et seq.)*fn2 Several years later, the California Department of Education was directed to review the existing regulations with the assistance of a workgroup broadly representative of the educational community, including charter schools, school administrators, school boards, and teachers. The objective was to identify amendments that would update, clarify, or enhance the existing regulations based on experience, as well as several published appellate court decisions. Using workgroup input and other sources of information, regulatory amendments were proposed by the Department of Education to the State Board. In 2008, the State Board adopted the new regulations.

The California School Boards Association, the Education Legal Alliance, the Association of California School Administrators, and the California Association of School Business Officials (together the School District Associations) filed a petition for writ of mandate and complaint for injunctive and declaratory relief against the State Board, Jack O'Connell in his capacity as the California State Superintendent of Public Instruction, and the Department of Education (together the State defendants) seeking to vacate and set aside 15 of the provisions of the regulations. The trial court granted the California Charter Schools Association (the Charter Association) leave to intervene.

The trial court issued a ruling after hearing in which it upheld 10 of the challenged regulations, but found five of the challenged regulations contained invalid provisions. The trial court issued a judgment directing the issuance of a peremptory writ of mandamus compelling the State defendants to vacate the regulations contained in section 11969.3, subdivisions (d)(1), (d)(2)(A), (d)(2)(B), (d)(2)(C), and (d)(2)(D).

The Charter Association filed an appeal from the portion of the judgment and peremptory writ that required the State defendants to vacate the five specified regulations as invalid. The Charter Association claims all the regulations are valid.

The School District Associations appealed the portion of the judgment and decision that upheld the challenged regulations. The School District Associations claim the trial court erred in upholding six of the 10 regulations they challenged at the trial court level. They assert the regulations are invalid.



Standard of Review

There are two categories of administrative rules: quasi-legislative rules and interpretive rules. (Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 10 (Yamaha).) The regulations adopted by the State Board here are quasi-legislative rules to which we apply a narrow scope of review.*fn3

As stated by the California Supreme Court: "It is a 'black letter' proposition that there are two categories of administrative rules and that the distinction between them derives from their different sources and ultimately from the constitutional doctrine of the separation of powers. One kind--quasi-legislative rules--represents an authentic form of substantive lawmaking: Within its jurisdiction, the agency has been delegated the Legislature's lawmaking power. [Citations.] Because agencies granted such substantive rulemaking power are truly 'making law,' their quasi-legislative rules have the dignity of statutes. When a court assesses the validity of such rules, the scope of its review is narrow. If satisfied that the rule in question lay within the lawmaking authority delegated by the Legislature, and that it is reasonably necessary to implement the purpose of the statute, judicial review is at an end." (Yamaha, supra, 19 Cal.4th at pp. 10-11.) A court's function is to inquire into the regulation's legality, not its wisdom. (State Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1040 (State Farm).)

"'"[T]he absence of any specific [statutory] provisions regarding the regulation of [an issue] does not mean that such a regulation exceeds statutory authority . . . ." [Citations.] The [agency] is authorized to "fill up the details" of the statutory scheme.' [Citation.]" (Marshall v. McMahon (1993) 17 Cal.App.4th 1841, 1848, quoting Ford Dealers Assn. v. Department of Motor Vehicles (1982) 32 Cal.3d 347, 362; accord, Mineral Associations Coalition v. State Mining & Geology Bd. (2006) 138 Cal.App.4th 574, 589 (Mineral Associations); Physicians & Surgeons Laboratories, Inc. v. Department of Health Services (1992) 6 Cal.App.4th 968, 981.)

However, an agency does not have discretion to promulgate regulations that are inconsistent with the governing statute, alter or amend the statute, or enlarge its scope. (Slocum v. State Bd. of Equalization (2005) 134 Cal.App.4th 969, 974; People ex rel. Dept. of Alcoholic Beverage Control v. Miller Brewing Co. (2002) 104 Cal.App.4th 1189, 1198-1199; Terhune v. Superior Court (1998) 65 Cal.App.4th 864, 872-873; accord, Gov. Code, §§ 11342.1, 11342.2.)

Where regulations are void because of inconsistency or conflict with the governing statute, a court has a duty to strike them down. (Littoral Development Co. v. San Francisco Bay Conservation Etc. Com. (1994) 24 Cal.App.4th 1050, 1058.) "In the end, '[t]he court, not the agency, has "final responsibility for the interpretation of the law" under which the regulation was issued.'" (Communities for a Better Environment v. California Resources Agency (2002) 103 Cal.App.4th 98, 110, fn. omitted.) We must conduct an independent examination to determine whether the agency "'reasonably interpreted the legislative mandate'" in enacting the regulation. (State Farm, supra, 32 Cal.4th at p. 1040.) "[T]he standard governing our resolution of the issue is one of 'respectful nondeference." (Mineral Associations, supra, 138 Cal.App.4th at p. 583; accord, Yamaha, supra, 19 Cal.4th at p. 11, fn. 4.)

We keep in mind that "the burden is on the party challenging a regulation to show its invalidity." (Mineral Associations, supra, 138 Cal.App.4th at p. 589; accord Geftakys v. State Personnel Bd. (1982) 138 Cal.App.3d 844, 867.)


The School District Associations' Challenge On Appeal To The 2008 Regulations

The School District Associations argue the trial court erred in upholding the validity of six of the State Board's regulations: (1) section 11969.2, subdivision (d); (2) section 11969.3, subdivision (a)(1); (3) section 11969.2, subdivision (e); (4) section 11969.7, subdivision (f); (5) section 11969.9, subdivision (c)(1)(C); and ...

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