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Collins v. Thurmond

California Court of Appeals, Fifth District

November 5, 2019

Keschel COLLINS et al., Plaintiffs and Appellants,
Tony THURMOND, as Superintendent, Etc. et al., Defendants and Respondents.

         APPEAL from a judgment of the Superior Court of Kern County. Sidney P. Chapin, Judge. (Super. Ct. No. CV283224)

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         California Rural Legal Assistance, Inc., Cynthia L. Rice, Oakland, Sahar Durali, Rebecca Buckley-Stein, Franchesca Verdin; Equal Justice Society, Eva Paterson, Allison Elgart; Mexican American Legal Defense & Educational Fund, Los Angeles, Kip M. Hustace, Thomas A. Saenz; Greater Bakersfield Legal Assistance, Inc., Bakersfield, Lyndsi Andreas, Celida Miramontes; Wilson Sonsini Goodrich & Rosati, Joni Ostler and Steven Guggenheim, Palo Alto, for Plaintiffs and Appellants.

         Christie Norris, as Amici Curiae on behalf of Plaintiffs and Appellants.

         Amy Bisson Holloway, Edmundo R. Aguilar, Sacramento, Todd M. Smith, Bakersfield, Bruce Yonehiro and Peter J. Stubbs, Sacramento, for Defendants and Respondents.


         MEEHAN, J.

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          Opinion after recalling remittitur and vacating opinion filed 8/27/19 and modified on 8/29/19


          The present case arises from information released to the public regarding suspensions, transfers, and other disciplinary proceedings in the Kern High School District of Kern County (KHSD). The data released allegedly demonstrates that racial bias has affected how KHSD disciplines minority students, and actions taken by KHSD allegedly demonstrate that KHSD actively attempted to hide this fact from the public.

          Appellants in this case are a collection of parents, students, taxpayers, and community organizations. They sued a number of defendants, including both local- and state-level entities and individuals.[1] Appellants’ claims against the local-level defendants were narrowed and allowed to proceed in the trial court, while all claims brought against the state-level defendants were dismissed with prejudice following various demurrers. In this appeal, appellants challenge the dismissal of several of the claims brought against the state-level defendants.

          In the following opinion, we affirm the dismissal of most of appellants’ claims against the state-level defendants, either because such claims do not state a cause of action or because such claims may be brought against the local-level defendants but not the state-level defendants. We ultimately find, however, that appellants have stated a cause of action under the equal protection clause of the California Constitution and they have properly petitioned for a writ of mandate based on the state-level defendants’ ministerial duty to monitor the practices of local school districts for violations of federal law. We therefore conclude the trial court wrongly sustained the state-level defendants’ demurrer on those claims, along with appellants’ request for declaratory relief on the same issues. In a related conclusion, we determine that appellants’ complaint contains sufficient allegations to demonstrate associational standing for one of the community organizations to pursue these claims against the state-level defendants.

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          The information that prompted this case was first made available in the 2009-2010 timeframe, although appellants allege that the subject conduct occurring in Kern County began before that time and has continued to the present day. The general crux of appellants’ complaint is that KHSD has adopted and implemented a district-wide disciplinary program that is biased toward minority students, students who speak limited English, and others similarly situated; KHSD and the state-level defendants became aware of this bias in or around 2009 and 2010; and rather than correct those biases, KHSD and the state-level defendants either willfully ignored the information or actively sought to hide their conduct from further public scrutiny.

          In the second amended complaint (the complaint),[2] appellants initially allege that "KHSD has developed and implemented written, verbal, formal and informal policies and practices regarding expulsion and referral for expulsion that are highly discretionary, and impose zero-tolerance standards that both violate express provisions of the California Education Code and result in the disproportionate suspension, expulsion and involuntary transfer of African-American and Latino students out of a general education setting and into alternative schools." Appellants further allege that certain students are marked in their files as problems and subjected to additional unwarranted scrutiny. Identifying certain racially charged statements allegedly made by teachers, appellants contend these actions create a racially hostile educational environment for minority students.

          With respect to the underlying disciplinary procedures, appellants allege that KHSD has implemented a code that is highly subjective, both in what constitutes a violation (e.g., defiance toward employees, continual or habitual use of profanity, and hate violence) and how such violations should be punished (e.g.," ‘Students who fail to comply with these rules and regulations will be counseled, reprimanded, suspended or expelled and/or arrested as the laws are applied.’ "). It is this subjective system that appellants allege provides the cover for discriminatory practices at KHSD.

          The complaint then details the underlying disciplinary statistics that appellants allege support their position. These include claims that in 2010, "KHSD gained statewide notoriety for its number of expulsions and suspensions reported to the U.S. Department of Education ...." This notoriety arose because, in 2009, KHSD reported 2,205 total expulsions, "the highest number

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of expulsions of any district in the state of California, including school districts with much larger enrollment." KHSD’s rate of expulsion was 54.47 per 1,000 students, dwarfing both Kern County’s rate of 14.87 per 1,000 students and the state average of 3.49 per 1,000 students. When broken down into broad racial categories, the rates in KHSD split further. "KHSD[’s] average expulsion rate for White students was 18.70 per 1,000 students; the average for Latino students was 65.85 expulsions per 1,000 students ...; and the average for African-American students was 110.21 expulsions per 1,000 students ...."

          Following this disclosure and the publicity it brought, in 2010 KHSD reported a slightly lower total of 2,040 expulsions before reporting "no data on expulsions for the 2011-2012 school year, although required to do so by state law." "In 2013, the number of reported expulsions dropped to 256."

          This reduction in expulsions, according to the complaint, occurred because KHSD implemented "a significant change in reporting practices and a change in [KHSD’s] approach to discipline that resulted in students being transferred out of a general education setting and into an alternative school through the use of involuntary transfers, rather than through formal expulsion." Appellants also allege KHSD has "implemented a ‘waiver’ system, under which students and parents are convinced through intimidation, coerced or tricked into waiving the due process protections accompanying formal discipline and accepting immediate placement in alternative schools."

          Appellants assert that, even with the reduction in expulsions, racial bias can be seen in the data. They note that in the 2012-2013 data, African-American students are still expelled at a rate of 24 per 1,000 students, compared to 7 per 1,000 students for Latinos, and 5 per 1,000 students for Whites. They also note that the types of behaviors resulting in expulsion are dramatically different depending on the race of the student. "While 58% of the White students ... were expelled for the more serious offenses of possession of drugs or weapons or inflicting injury on another, 51% of the Latinos and just 33% of African-Americans were expelled for these reasons. Put another way, 67% of expelled African-American students were expelled for offenses that did not include physical injury or possession of drugs or weapons, while only 42% of expelled Whites were expelled for these less serious offenses."

          Premised on the allegations that KHSD moved to suspensions and transfers over expulsions, appellants also allege that the racial disparities continued in the statistics regarding suspensions and alternative school placements. Thus, appellants allege that in 2013, KHSD’s suspension rate was 16.3 percent of students, "or three times the state average." Further, the rates of suspension

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were again skewed. Rates of "38.61 per one hundred African-American students," "24.81 per one hundred Latino students," and "18.7 per one hundred White students" existed for suspensions that year. Moreover, "only 7.69 per one hundred White students were suspended for willful defiance" while "27.69 per one hundred African-American students and 13.08 per one hundred Latino students were suspended for willful defiance." In regard to what appellants assert are alternative school placements, they allege that minority students are disproportionately placed in those settings too. Thus, where KHSD "enrollment for [2013-2014] was 63% Latino, 6% African-American and 25% White," "enrollment in the alternative schools within [KHSD] was 79.65% Latino, and 7.29% African-American," with only 16.83 percent enrollment being White students.[3]

          Having set forth the racial disparities underlying their claims, appellants detail allegations that alternative schools "are not intended to provide the full educational opportunity of a general education setting," thereby affecting the rights of minority students to obtain an education equal to their White counterparts. Appellants contend that "the relatively stable enrollment in alternative schools, with disproportionately greater percentages of Latinos and African-Americans, is due to the fact that KHSD is implementing the same policies and practices with respect to the involuntary transfer of students to these alternative schools as it did when assignments were the result of formal expulsion." They allege such practices "have not only been intentional, but also influenced by implicit and/or unconscious biases concerning African-American and Latinos ... that exist in the United States, California, and Kern County today."

          Appellants add further allegations that KHSD’s policies are harmful to minority students, that specific plaintiffs in the litigation have been harmed by these policies, that employees in KHSD have "implemented policies and practices that incorporate negative stereotypes about African-Americans and Latinos," and that students placed in alternatives schools receive a reduced set of educational opportunities. Appellants then identify several specific instances of conduct by KHSD corresponding with their allegations of harm that were allegedly suffered by various plaintiffs.

          Following these summaries of what allegedly happened to specific plaintiffs, the complaint alleges that KHSD’s conduct is part of a pattern that both

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state and local agencies have an obligation to address. Appellants allege that instead of addressing these problems, "KHSD changed the method by which it reports suspensions and expulsions in an effort to conceal the disparate impacts of its policies and practices, and refused to report information to the State of California ...." The complaint details many of the ways KHSD’s actions allegedly continued to affect minority students despite KHSD’s knowledge of these impacts, and asserts that the state-level defendants "had actual notice of the disparities in education opportunity that resulted from the disproportionately high suspension, expulsion and assignment to alternative schools of Latinos and African-Americans in KHSD ... but took no action to compel KHSD ... to address or rectify these disparities and, specifically, failed to even enforce the mandate that KHSD submit data regarding discipline disaggregated by race, ethnicity and offense."

          Based upon these allegations, the 90-page complaint raises several causes of action, many of which are discussed below.

          Appellants’ lawsuit was amended several times as a result of three demurrers. At each demurrer, some portion of the suit was dismissed with respect to the state-level defendants. Although various claims against the local-level defendants were permitted to proceed, all claims brought against the state-level defendants eventually were dismissed. Appellants apparently settled their claims against the local-level defendants, and this appeal followed.


         In this appeal, appellants contend the trial court wrongly dismissed various claims raised in multiple iterations of their lawsuit. These include, in the order in which we choose to consider them, equal protection claims under both the Federal and California Constitutions, a claim under the common schools clause of the California Constitution (art. IX, � � 1, 5), a claim brought under Government Code section 11135 et seq., an Equal Educational Opportunities Act (EEOA) claim arising under 20 United States Code section 1703, a taxpayer claim brought under Code of Civil Procedure section 526a, and a claim seeking a writ of mandate under Code of Civil Procedure section 1085. Appellants contend their requests for declaratory judgment on each of these claims are proper and that one of the community organizations named as a plaintiff properly alleged organizational standing to proceed on the dismissed claims.

          We begin by setting forth the standard of review for appeals following a demurrer and then analyze each of the claims raised by appellants. We

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analyze each disputed claim separately, summarizing the contentions, identifying relevant facts, and discussing legal principles as needed, with the exception that we consider the equal protection claims together to the extent possible.

          Standard of Review

         "A demurrer tests the legal sufficiency of the factual allegations in a complaint." (Regents of University of California v. Superior Court (2013) 220 Cal.App.4th 549, 558.) "When a demurrer is sustained, appellate courts conduct a de novo review to determine whether the pleading alleges facts sufficient to state a cause of action under any possible legal theory." (Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1242.) "When conducting this independent review, appellate courts ‘treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.]’ " (Esparza v. Kaweah Delta Dist. Hospital (2016) 3 Cal.App.5th 547, 552.) We may also consider matters subject to judicial notice and will affirm the judgment if any ground for the demurrer is well taken. (Ramirez v. Tulare County Dist. Attorney’s Office (2017) 9 Cal.App.5th 911, 924.)

          Appellants’ Second Amended [4] Complaint— Equal Protection Claims (Claims 1 & 4) [5]

          Appellants’ complaint contained equal protection claims under both the United States Constitution and the California Constitution that were dismissed by the trial court. With respect to the state-level defendants, appellants’ California claim was brought against both CDE and Superintendent Torlakson. The federal claim only named Superintendent Torlakson. As the analyses for each claim parallel each other, although not being coextensive, we consider them in combination, adding additional discussion where differences between the federal and state law analyses exist.

          Appellants’ federal allegations

          Appellants presented multiple allegations regarding how the various defendants violated the federal Constitution. However, these allegations were

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not made against Superintendent Torlakson in all instances. In the first allegation, appellants alleged the state-level defendants and Superintendent Torlakson "acting under color of state law, knowingly and intentionally perpetuated widespread and persistent policies and practices in the administration of the discipline, suspension, expulsion, truancy, and involuntary transfer and alternative school assignment of students, in a manner that impermissibly and invidiously targets African-American and Latino students on account of their race ...." In the second, appellants alleged that all of defendants’ policies and practices in the administration of the discipline of students resulted in a hostile educational environment and caused a "harmful and invidious racially-disproportionate impact on African-American and Latino students ...."

          Appellants then alleged the local-level defendants covered up their discriminatory actions by changing their reporting policies and withholding data from the state in a way that "further demonstrates Defendant/Respondents’ malicious intent to continue discrimination ...." Appellants alleged there were no "non-pretextual, race-neutral" explanations for KHSD’s policies and that there was no rational basis for those policies. Appellants made three further allegations concerning "Defendants/Respondents’ " actions and biases perpetuating "the gross race-based disparities in the provision of public education and the racially hostile educational environment that have been identified ...."

          Appellants’ California equal protection allegations

          Appellants took a different approach in alleging their state law equal protection claim. Appellants first noted that the "California Constitution guarantees all students in California basic education equality" and that this right is violated when "a public educational program ‘falls fundamentally below prevailing statewide standards ....’ " Appellants then alleged that the state-level defendants have a duty to provide basic educational equality. Finally, appellants contended the state-level defendants failed to provide the same educational opportunities to African-American and Latino students as provided to White students due to the alleged discriminatory practices generally alleged in the complaint.

          General legal principles

          The Fourteenth Amendment to the federal Constitution provides that " ‘No State shall ... deny to any person within its jurisdiction the equal protection of the laws.’ The California Constitution likewise prohibits the denial of equal protection." (Kimco Staffing Services, Inc. v. State of California (2015) 236 Cal.App.4th 875, 884.) Due to

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the similar protections afforded, California relies on principles elucidated under the Fourteenth Amendment when considering its own Constitution’s equal protection rights. Thus, California cases summarizing equal protection claims regularly recognize the similar federal standards. (Kimco, supra, at p. 884, fn. 7.) Of course, the California constitutional protections are independent from those provided in the Fourteenth Amendment and may involve slightly different analyses depending on the claims brought. (See Molar v. Gates (1979) 98 Cal.App.3d 1, 12 [observing both that the equal protection provisions of our state may demand a different analysis from one conducted only under the Fourteenth Amendment and that California’s equal protection laws possess an independent validity from the Fourteenth Amendment].)

          "As its name suggests, equal protection of the laws assures that people who are ‘ "similarly situated for purposes of [a] law" ’ are generally treated similarly by the law." (Vergara v. State of California (2016) 246 Cal.App.4th 619, 644.) " ‘The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.’ [Citations] This initial inquiry is not whether persons are similarly situated for all purposes, but ‘whether they are similarly situated for purposes of the law challenged.’ " (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) "If the two groups are not similarly situated or are not being treated differently, then there can be no equal protection violation." (People v. Castel (2017) 12 Cal.App.5th 1321, 1326.)

          Identification of similarly situated groups

          The state-level defendants first contend appellants "fail to allege that they were treated differently from other similarly situated students." Specifically, the state-level defendants argue appellants are focusing on comparisons with White students generally, that each student’s disciplinary story is unique, and that no allegations exist demonstrating a White student was in a similar situation to appellants and treated differently. Appellants respond that their allegations are not so superficial and that they satisfy applicable pleading standards.

          The allegations made in the complaint are, in fact, more comprehensive than the state-level defendants contend. Appellants incorporate by reference their general factual pleadings and their descriptions of specific incidents of discipline. At the most general level, appellants allege that African-American and Latino students are being suspended and expelled at rates substantially higher than White students ...

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