Alejo v. Torlakson
| Decision Date | 09 January 2013 |
| Docket Number | A130721 |
| Citation | 212 Cal.App.4th 768,151 Cal.Rptr.3d 420 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Luis ALEJO et al., Plaintiffs and Appellants, v. Tom TORLAKSON, as Superintendent of Public Instruction, Etc., et al., Defendants and Respondents. |
OPINION TEXT STARTS HERE
San Francisco County Superior Court, Hon. Charlotte Walter Woolard (San Francisco City and County Super. Ct. No. CPF–09–509568)
Cynthia L. Rice, California Rural Legal Assistance, Inc., Deborah Escobedo, Damon A. King, Youth Law Center, for Plaintiffs and Appellants.
David B. Sapp, Jessica Price, ACLU Foundation of Southern California, Kyra Kazantzis, Asa Pittman, Law Foundation of Silicon Valley, Yungsuhn Park, Nicole K. Ochi, Asian Pacific American Legal Center, for Amicus Curiae on behalf of Plaintiffs and Appellants.
Kamala D. Harris, Attorney General of California, Jennifer M. Kim, Acting Senior Assistant Attorney General, Niromi W. Pfeiffer, Julie Weng–Guiterrez, Supervising Deputy Attorneys General, Mateo Munoz, Christine Murphy, Deputy Attorneys General, for Attorneys for Defendants and Respondents.
Luis Alejo, Maria Medina, Angelica Arechiga, Joel Avila, Frente Indígena Oaxaqueño Binacional, Comité Pro Educación, 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 1 to ensure compliance with federal requirements. Such monitoring is mandated by federal regulations. ( 34 C.F.R. § 80.40.)
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, 2§ 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).3 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.
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...
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