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Luis Alejo et al v. Tom Torlakson

January 9, 2013


(San Francisco City and County Super. Ct. No. CPF-09-509568) Trial Court: San Francisco County Superior Court Trial Judge: Hon. Charlotte Walter Woolard

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


Luis Alejo, Maria Medina, Angelica Arechiga, Joel Avila, Frente Indigena Oaxaqueno Binacional, Comite Pro Educacion, Parents for Unity, and Californians Together, plaintiffs below, sought in the trial court to compel defendants, Tom Torlakson, in his official capacity as the State Superintendent of Public Instruction ( Superintendent); the State Board of Education (SBE); and the California Department of Education (CDE), to rescind a suspension of onsite reviews of school district compliance with state and federal standards in programs benefitting educationally disadvantaged students. Plaintiffs also sought a court mandate that defendants develop an onsite monitoring schedule, develop a monitoring plan, and adopt regulations related to monitoring. In addition, plaintiffs sought a declaratory judgment that defendants' actions regarding onsite monitoring had violated various state and federal statutes and constituted an illegal expenditure of taxpayer funds.

Plaintiffs appeal from orders of the trial court denying their motion for peremptory writ of mandate and granting defendants' motion for summary judgment. We affirm the orders of the trial court.


A number of educational programs benefit students belonging to groups identified as having special educational needs. Such programs include those targeted to students who have limited English proficiency (LEP), children of migratory workers, homeless or neglected children, and delinquent children. These "categorical programs" are funded by restricted state and federal allocations and program requirements are set by state and/or federal statutes and regulations.

The No Child Left Behind Act (NCLB) (20 U.S.C. § 6301, et seq.) provides funding to states conditioned upon compliance with federal mandates regarding academic standards, assessment and accountability. (See 20 U.S.C. §§ 6302, 6304.) The NCLB seeks to advance its purposes by, inter alia, meeting "the educational needs of low-achieving children in our Nation's highest-poverty schools, limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance." (20 U.S.C. § 6301(2).)

Pursuant to the NCLB, California receives funds specifically allocated for programs for LEP, migrant, homeless, and neglected or delinquent children. (20 U.S.C. §§ 6391-6399 [migrant]; 20 U.S.C. §§ 6421-6472 [neglected or delinquent]; 20 U.S.C. §§ 6801-7014 [LEP]; 42 U.S.C. §§ 11431-11435 [homeless].) In its application for funds under NCLB, California has described how it monitors school districts*fn1 to ensure compliance with federal requirements. Such monitoring is mandated by federal regulations. (34 C.F.R. § 80.40.)

A. CDE Monitoring of Categorical Programs

California has mandated that the Superintendent, with the discretion to "establish the process and frequency for conducting reviews," conduct onsite monitoring of the categorical programs. (Ed. Code,*fn2 § 64001.) Section 52177, subdivision (d), mandates onsite monitoring of LEP programs once every three years, but whether this section is still operative is one of the legal issues in this case. The SBE is required to adopt regulations establishing the standards and criteria to be used in the monitoring and evaluation of categorical programs. (§ 54005.)

Categorical programs have been reviewed via a system called Categorical Program Monitoring (CPM).*fn3 Under CPM, each school district was placed into one of four groups and a different group was scheduled for review each year. Districts were then selected for onsite review based on criteria that conformed with section 64001. Between 100 and 250 districts received onsite reviews annually during each school year.

In addition to onsite monitoring, CDE categorical program staff engage in a variety of other monitoring and oversight activities. The staff holds meetings and engages in other interactions with school districts, teachers, parents and students. They confer with, and respond to questions from, school district officials and teachers regarding educational programs, including the correction of deficiencies that have been identified. Through these interactions, staff can monitor and assess program compliance. When necessary, staff can recommend a course of action so that the district achieves or maintains compliance with state and federal program requirements.

CDE also maintains the Unified Complaint Process (UCP), which is used, in part, to monitor and assess compliance with categorical program requirements. (See Cal. Code Regs., tit. 5, §§ 4600-4687.) The UCP provides that any interested person may file a complaint alleging a violation of federal or state law concerning the provision of educational services, including NCLB programs. (Cal. Code Regs, tit. 5, §§ 4610, 4630.) CDE investigates complaints made via UCP and can issue a corrective action to remedy a specific grievance or to address a systemic problem.

The CDE Language Policy and Leadership Office (LPLO) is responsible for the monitoring and oversight of districts that have been awarded NCLB funds for LEP and migrant students. The CDE has established English proficiency standards, conducts an annual student assessment of English proficiency, and has defined annual measurable achievement objectives (AMAO) for increasing the percentage of LEP students making progress in learning English and in attaining English proficiency. The LPLO annually monitors student academic performance data from each district in order to determine whether the district has met its AMAO's for the year.

If a district does not meet the AMAO's for two consecutive years, it must develop an improvement plan. If a district does not meet the AMAO's for four consecutive years, CDE imposes additional sanctions, such as requiring modification of curriculum, program, and method of instruction of LEP students. In addition, by agreements with selected county offices of education, the CDE will assist the district in the development and implementation of an action plan to ensure that AMAO's will be met in the future.

The LPLO also monitors the districts' fiscal operations in order to determine whether the policies and expenditure of funds are in alignment with student achievement outcomes and instructional goals to develop English language proficiency and improve reading, language arts and mathematical skills, based on the assessed needs of LEP students. During the 2008-2009 school year, there were 135 districts that failed to meet their AMAO's for two consecutive years and 58 districts that failed to meet their AMAO's for four consecutive years.

Districts whose students fail to make academic progress, and which are in danger of being assigned "program improvement" status, are subject to corrective action and sanctions. Such districts may be required to work with a District Assistance and Intervention Team (DAIT), which provides technical assistance to help the district comply with federal requirements under the NCLB. Through the DAIT's, the CDE monitors and provides technical assistance to districts to correct the educational program activities giving rise to low student academic achievement. The DAIT's review all facets of school operations, including the design and operation of instructional programs, deployment of staff, fiscal operations, professional development, use of data, work with parents and the community, and governance.

CDE's School Fiscal Services and Audits and Investigations Divisions conduct on- and off-site monitoring of school district programs and operations and the corresponding financial expenditures in order to determine if districts are in compliance with state and federal requirements.

B. The Suspension of Non-Mandatory Onsite Monitoring

On December 19, 2008, the Governor issued Executive Order S-16-08, requesting that state government entities achieve budget savings for the fiscal years 2008-2009 and 2009-2010. The Superintendent issued his State of Education Address on February 3, 2009, and discussed the impact of the fiscal crisis on public education. The Superintendent explained that schools faced "staggering" mid-year reductions in state financing for the 2008-2009 school year--reductions that might amount to $10 billion--and that further reductions were predicted for 2009-2010 and 2010-2011. The Superintendent announced that non-mandated onsite monitoring would be suspended for at least one year so that school districts could focus on improving student achievement rather than preparing for program audits. The Superintendent also directed his staff to use the time and resources they saved from temporarily suspending onsite CPM reviews to conduct a review and redesign of CDE's compliance monitoring system.

On March 23, 2009, the Superintendent issued a formal notice implementing the suspension of all non-mandated, onsite CPM reviews for at least one year. The notice expressly provided that CDE's other monitoring activities would continue. Onsite reviews of 105 districts that had met the selection criteria were cancelled. Of these, only 11 were rescheduled, a year later, and the other 94 were eliminated based on new selection criteria. Prior to the suspension, 45 onsite reviews were held out of those originally scheduled for the 2008-2009 school year.

In 2010 a modified CPM system was implemented and included piloted components of a potential CPM redesign. During the 2009-2010 review cycle, 30 onsite reviews were conducted and 11 of these were make-up reviews of districts whose reviews had been cancelled in 2008-2009. In addition, two onsite reviews of programs operated by the Division of Juvenile Justice were conducted.

C. Procedural History

In June 2009, plaintiffs filed a petition for writ of mandate, including separate causes of action for declaratory relief and taxpayer relief. The petition sought an order that defendants reinstate onsite monitoring, develop an onsite monitoring schedule, develop a monitoring plan, and adopt regulations. It also sought relief in the form of preliminary and permanent injunctions, and a declaratory judgment that defendants' actions had violated various state and federal statutes and constituted an illegal expenditure of taxpayer funds.

Plaintiffs filed a motion for preliminary injunction solely on the question of whether defendants had failed to meet the specific requirement of section 52177 to conduct reviews of LEP programs every three years. On December 3, 2009, the court entered an order denying that motion.

Defendants filed a motion for summary judgment as to all causes. Plaintiffs filed a motion for peremptory writ of mandate addressing only the writ of mandate cause of action. A hearing on both motions was held on August 12, 2010.

In moving for the issuance of a peremptory writ of mandate, plaintiffs alleged that: (1) CDE failed to comply with its ministerial duty to conduct onsite reviews of LEP programs every three years as required by section 52177, subdivision (d); (2) the Superintendent and CDE violated their mandatory duties under section 64001 and the Equal Education Opportunities Act (EEOA) (20 U.S.C. § 1703(f)); (3) the Superintendent and CDE abused their discretion by failing to implement an onsite monitoring program that fulfills the purposes of section 64001, the EEOA, the NCLB, and the McKinney-Vento Homeless Education Assistance Improvements Act of 2002 (41 U.S.C. §§ 11431, et seq.); and (4) the SBE failed, as required by section 54005, to promulgate regulations governing educationally disadvantaged youth programs. Defendants asserted that: (1) they had no ministerial duty under section 52177, subdivision (d); (2) they did not violate any mandatory duty imposed by section 64001 or federal law; (3) they did not abuse their discretion by the temporary suspension or in implementing revisions to the CPM onsite monitoring system; and, (4) SBE did promulgate regulations governing educationally disadvantaged youth programs.

Defendants moved for summary judgment on the following grounds: (1) the temporary suspension of CPM reviews did not constitute a breach of a ministerial duty; (2) no present legal duty exists under section 52177, subdivision (d), as the law has sunset and is inoperative; (3) SBE adopted regulations governing the Educationally Disadvantaged Youth Programs; (4) plaintiffs have no claim or cause of action arising from the temporary suspension of CPM reviews under federal law, including the NCLB, EEOA, and title VI of the Civil Rights Act of 1964; (5) plaintiffs' taxpayer cause of action lacked merit as the temporary suspension of non-mandatory onsite CPM reviews was discretionary in nature and was not an illegal expenditure or waste of public funds; and (6) the monitoring of compliance with state and federal educational requirements did not cease during the period when CPM onsite reviews were temporarily suspended.

The trial court issued a statement of decision denying plaintiffs' motion for a peremptory writ of mandate. The court then granted defendants' motion for summary judgment, adopting and incorporating by reference the statement of decision denying plaintiffs' motion. The trial court made specific legal and factual findings, including: (1) the temporary suspension of non-mandatory onsite CPM reviews did not constitute a breach of a ministerial duty; (2) section 52177 had not sunset and is operative; (3) section 64001 is a more specific statute and takes precedence over section 52177 in defining and providing for the monitoring authority; (4) SBE had properly adopted regulations; (5) plaintiffs did not have a claim or cause of action arising from the temporary suspension of CPM reviews under federal law, including the provisions of the NCLB, the EEOA, or title VI of the Civil Rights Act of 1964; (6) plaintiffs' taxpayer cause of action was denied because the temporary suspension was discretionary in nature, the Superintendent did not abuse his discretion when temporarily suspending the CPM reviews, and, thus, there was no illegal expenditure or waste of public funds caused by the temporary suspension; and (7) defendants' other monitoring of categorical program compliance with state and federal requirements was not suspended and did not cease during the suspension of CPM onsite reviews.

Defendants filed notices of entry with respect to the orders of the trial court on October 19, 2010. Plaintiffs filed their notice of appeal on November 24, 2010, with respect to both orders. The court entered judgment on December 21, 2010. On February 15, 2011, this court granted a joint motion to consider this appeal timely as to the judgment entered on December 21, 2010, pursuant to California Rules of Court, rule 8.104(d)(2).*fn4


I. The Denial of the Motion for Writ of Mandate

Plaintiffs allege various ministerial duties that defendants have violated, as well as alleging that defendants have abused their discretion in the performance of duties. We examine each of plaintiffs' allegations below, but conclude that defendants have neither violated ministerial duties nor abused their discretion. Because we so conclude, we affirm the trial court's denial of plaintiffs' motion for writ of mandate.

A. Standard of Review

Code of Civil Procedure section 1085, subdivision (a) provides: "A writ of mandate may be issued by any court to any inferior tribunal, corporation, board, or person, to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . ." "[M]andamus will not lie to control an exercise of discretion, i.e., to compel an official to exercise discretion in a particular manner. [Citation.] Generally, mandamus may only be employed to compel the performance of a duty that is purely ministerial in character." (Morris v. Harper (2001) 94 Cal.App.4th 52, 62.)

"In most cases, the appellate court must determine whether the agency had a ministerial duty capable of direct enforcement or a quasi-legislative duty entitled to a considerable degree of deference. This question is generally subject to de novo review on appeal because it is one of statutory interpretation, a question of law for the court." (Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1266.) "Even if mandatory language appears in the statute creating a duty, the duty is discretionary if the [entity] must exercise significant discretion to perform the duty." (Sonoma AG Art v. Department of Food & Agriculture (2004) 125 Cal.App.4th 122, 127.)

"Where the duty in question is not ministerial, mandate relief is unavailable unless the petitioner can demonstrate an abuse of discretion. ' "While, of course, it is the general rule that mandamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner . . . [it] will lie to correct abuses of discretion . . . ." [Citation.] In determining whether an abuse of discretion has occurred, a court may not substitute its judgment for that of the administrative board [citation], and if reasonable minds may disagree as to the wisdom of the board's action, its determination must be upheld [citation].' [Citation.] A decision is an abuse of discretion only if it is 'arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.' [Citation.]" (Mooney v. Garcia (2012) 207 Cal.App.4th 229, 235.)

When there is no ministerial duty and review is for abuse of discretion, such limited review is grounded in the doctrine of separation of powers, acknowledges the expertise of the agency, and derives from the view that " '[c]courts should let administrative boards and officers work out their problems with as little judicial interference as possible . . . .' " (Lindeil Co. v. Board of Permit Appeals (1943) 23 Cal.2d 303, 315; Western/California, LTD v. Dry Creek Joint Elementary School Dist. (1996) 50 Cal.App.4th 1461, 1492.) It also recognizes that a challenged administrative agency action comes before the court with a strong presumption that the agency's official duty has been regularly performed and the burden is on appellants to show the agency's action is invalid. (Luxor Cab Co. v. Cahill (1971) 21 Cal.App.3d 551, 557.)

B. Obligations Under Federal Law

Plaintiffs contend that the temporary suspension of onsite monitoring and "failure to implement a meaningful alternative" violated defendants' mandatory duties under federal law. They argue that "[t]he discretion granted under section 64001 must be construed in light of the other mandatory duties imposed upon the State of California by federal law."

1. Obligations Under the EEOA

The EEOA requires each state "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).) Plaintiffs propose that defendants "do not have unfettered discretion under the EEOA to construe 'appropriate action' any way they choose. Onsite reviews are the manner by which the Legislature has determined that LEP programs are to be monitored. The EEOA does not allow them to cease all such monitoring while they 'revise' or 'pilot' a new system, especially where there is no evidence that the existing monitoring process needs any tampering or has any identified flaws."

"Congress' use of the less specific term, 'appropriate action,' . . . indicates that Congress intended to leave state and local educational authorities a substantial amount of latitude in choosing the programs and techniques they would use to meet their obligations under the EEOA. However, by including an obligation to address the problem of language barriers in the EEOA and granting limited English speaking students a private right of action to enforce that obligation in [title 20 United States Code section 1706], Congress also must have intended to insure that schools made a genuine and good faith effort, consistent with local circumstances and resources, to remedy the language deficiencies of their students . . . ." (Casteneda v. Pickard (5th Cir. 1981) 648 F.2d 989, 1009.) Because defendants must exercise significant discretion to perform their duty of taking "appropriate action," the duty is not ministerial and our review is limited to abuse of discretion.

The EEOA nowhere requires that states maintain an onsite monitoring program. Whether defendants are fulfilling their "appropriate action" obligation under the EEOA by performing adequate monitoring of districts would require a thorough examination of all of defendants' monitoring activities in order to determine whether they have abused their discretion. Unfortunately, plaintiffs have focused solely on onsite monitoring, its suspension, and the change in criteria for selection for onsite review. Plaintiffs' myopic view of defendants' monitoring activities is demonstrated in their briefs by statements such as: "Respondents repeatedly confirmed that their ad hoc criteria and monitoring schedule were not in final form, and would not be for at least another year and they certainly were not tested. In effect, California had no monitoring system currently in effect that fulfilled its EEOA obligation." By failing to make allegations in their complaint about defendants' other monitoring activities, and by failing to create a full evidentiary record concerning them, plaintiffs make it impossible for any court to determine whether defendants' monitoring activities violate federal law because they do not ...

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