MENDOZA v. LOS ANGELES PARENTS UNION

Filed 4/17/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

Story Continued from Part II ..

Butt v. State of California and Cobb v. OConnell are clearly distinguishable from this case. Those cases stand for the proposition that the state may, and in some circumstances must, interfere with a local school boards management of its schools when an emergency situation threatens the students constitutional right to basic equality of educational opportunity. The Romero Act is not such legislation. The Romero Act makes no findings of crisis in the LAUSD schools. Indeed, it could not, as LAUSD schools are not the worst in the state by any measure. Instead, the Romero Act purports to justify its interference with the Boards authority on the basis that the LAUSD has unique challenges and resources that require and deserve special attention to ensure that all pupils are given the opportunity to reach their full potential. (Ed. Code,  35900, subd. (a)(1).) In the absence of any looming constitutional crisis, the unique circumstances of the LAUSD do not, alone, constitute a basis for depriving the citizens of Los Angeles of their right to an elected Board running their school district. The Romero Act is therefore violative of article IX, section 16 of the California Constitution.

3. The Romero Act Violates Article IX, Section 6 of the Constitution

We next consider article IX, section 6 of the Constitution, which provides, in pertinent part, The Public School System shall include all kindergarten schools, elementary schools, secondary schools, technical schools, and State colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them. No school or college or any other part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System. (Italics added.)

It is clear from early cases that the general purpose of article IX, section 6 was to adopt one uniform system of public school education; the term system itself imparting unity of purpose as well as entirety of operation. (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist. (1973) 36 Cal.App.3d 46, 57, fn. omitted.) Providing a single system of public schools means that the educational system must be uniform in terms of the prescribed course of study and educational progression from grade to grade.  (Wilson v. State Bd. of Education, supra, 75 Cal.App.4th at p. 1137.) The purpose of article IX, section 6 of the California Constitution is to guarantee that the ability of that system to discharge its duty fully is not impaired by the dissipation of authority and loss of control that would result if parts of the system were transferred from the system or placed under the jurisdiction of some other authority. (California Teachers Assn. v. Board of Trustees (1978) 82 Cal.App.3d 249, 254.) It is a fluid provision, one that must be interpreted by the facts of each case. (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist., supra, 36 Cal.App.3d at p. 57.)

To determine whether the Romero Act violates this provision, we first decide whether the Council of Mayors and Mayors Partnership are entities within the public school system. As we conclude that they are not, we then address the question as to whether the Romero Act transfers part of the school system to these entities.

a. The Council of Mayors and Mayors Partnership are not
Public School System Entities

Article IX, section 6 provides that, in addition to the public schools themselves, the school system includes the school districts and the other agencies authorized to maintain them. We therefore must determine whether the Council of Mayors and Mayors Partnership are agencies authorized to maintain the schools.^[1]

Our analysis begins^[2]with an acknowledgement that the Romero Act specifically declares that the Council of Mayors and the Mayors Partnership are part of the public school system. [I]t is . . . the intent of the Legislature that, in performing the school‑related duties set forth in this chapter, the [C]ouncil of [M]ayors . . . and the [Mayors Partnership] function as agencies authorized to maintain public schools, similar to a school district or county office of education. The [C]ouncil of [M]ayors and the [Mayors P]artnership are, therefore, a part of the public school system of the state in performing the duties established in this chapter within the meaning of section 6 of Article IX of the California Constitution. (Ed. Code,  35900, subd. (e).) While this determination is entitled to great weight, it is not controlling. We repeat, A court may not simply abdicate to the Legislature, especially when the issue involves the division of power between local government and that same Legislature. (County of Riverside v. Superior Court, supra, 30 Cal.4th at p. 286.) To put it another way, the Legislature may not, by means of legislative declaration, foreclose or limit the scope of judicial examination and review of the constitutionality of a legislative enactment. As a result, the substance of the Romero Act must be evaluated on its merits, quite apart from any legislative declaration designed to address expressed constitutional concerns.

The critical question, therefore, is whether the Council of Mayors and the Mayors Partnership can be deemed to be a part of the public school system for any reason other than the Legislatures bald declaration that they are. The Council of Mayors is effectively directed by the Mayor, as it can take no action without his agreement. Likewise, by its terms, the Mayors Partnership is directed by the Mayor. Yet the Mayor is not part of the public school system. The Mayor is an elected official who, according to the City Charter, is the Chief Executive Officer of the City. (L.A. Charter,  230.)

Article IX of the California Constitution governs education in California. It provides for a State Superintendent and Board of Education; County Superintendents and Boards of Education; and local school districts with governing boards. These are the entities constitutionally authorized to maintain public schools, and we conclude they are, therefore, the only entities referred to in article IX, section 6. (See Wilson v. State Bd. of Education, supra, 75 Cal.App.4th at p. 1142 [each entity provided for in article IX is an entity authorized to maintain schools in our public school system and is therefore part of the public school system].) As the Council of Mayors and the Mayors Partnership^[3]are not article IX entities, they are not part of the public school system.

b. The Romero Act Transfers Part of the Public School System
to the Mayors Partnership and Council of Mayors

Article IX, section 6 provides, in pertinent part, No school or college or any other part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System. This provision is violated only by transfers of control. (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist., supra, 36 Cal.App.3d at p. 57.) When, for example, an entity outside the school system acts in an advisory capacity only, there is no prohibited transfer, because the outside entity exercises no actual control over the school system entities. (Ibid.)

The prohibition is not violated by a statute allowing school districts to contract with private driver training schools to provide driver training, when the private driver training schools would be  under the exclusive control and management of the governing board of the school district and shall comply with all rules and regulations of the State Board of Education relating to driver training offered by the public schools [with the exception that teaching credentials would not be required].  (California Teachers Assn. v. Board of Trustees, supra, 82 Cal.App.3d at p. 252.) This is so because the statute simply allows school boards to delegate a portion of the teaching function to be done under the control and supervision of the school district. (Id. at p. 255.) However, if the control and management of the driver training program were to be transferred to a private school, a constitutional violation would occur. (Id. at p. 256.) This would be true not because the teaching function may not be transferred, but because the school districts and the other agencies authorized to maintain the schools within the public school system are also a part of the system, and article IX, section 6, prohibits placing any part of the system under the jurisdiction of any authority other than one included within the system. A transfer of control would indirectly transfer a part of the administrative system. (Ibid.)

Similarly, the Charter Schools Act, which allowed the creation of charter schools free from most state laws pertaining uniquely to school districts, also did not effect an unconstitutional transfer of control. (Wilson v. State Bd. of Education, supra, 75 Cal.App.4th at p. 1130.) As the Wilson court explained, we wonder what level of control could be more complete than where, as here, the very destiny of charter schools lies solely in the hands of public agencies and offices, from the local to the state level: school districts, county boards of education, the Superintendent and the [State Board of Education]. The chartering authority[^[4]] controls the application approval process, with sole power to issue charters. [Citations.] Approval is not automatic, but can be denied on several grounds, including presentation of an unsound educational program. [Citation.] Chartering authorities have continuing oversight and monitoring powers, with (1) the ability to demand response to inquiries concerning financial and other matters [citation]; (2) unlimited access to inspect or observe any part of the charter school at any time [citation]; and (3) the right to charge for actual costs of supervisorial oversight [citation]. As well, chartering authorities can revoke a charter for, among other reasons, a material violation of the charter or violation of any law. [Citation.] Short of revocation, they can demand that steps be taken to cure problems as they occur. [Citation.] The [State Board of Education], upon recommendation from the Superintendent, can also revoke any charter or take other action in the face of certain grave breaches of financial, fiduciary or educational responsibilities. [Citation.] Additionally, the [State Board of Education] exercises continuous control over charter schools through its authority to promulgate implementing regulations. [Citations.] Finally, public funding of charter schools rests in the hands of the Superintendent. (Id., at pp. 1139‑1140, fn. omitted.) As charter schools are under the jurisdiction of chartering authorities, and the chartering authorities themselves are within the public school system, there is no violation of article IX, section 6. (Id. at p. 1142.)

We analyze the provisions of the Romero Act in the context of this framework. We turn first to the three clusters of schools that are part of the demonstration project. As to these schools, the Romero Act transfers all authority exercised by the [LAUSD board of education] and the district superintendent to the Mayors Partnership. (Ed. Code,  35932, subd. (a).) Unlike the driver training programs at issue in California Teachers Assn. v. Board of Trustees, supra, 82 Cal.App.3d 249, in which the programs remained under the exclusive management and control of the governing boards of the school district, these three clusters of schools are taken from the management and control of the LAUSD Board of Education. Moreover, the panoply of controls exerted by public school system authorities over the charter schools at issue in Wilson v. State Bd. of Education, supra, 75 Cal.App.4th 1125 are not present here. The County Superintendent must approve of the demonstration project unless one of three narrowly‑drawn conditions exist. Moreover, the County Superintendent has only two windows of opportunity in which to act: within 20 days of the initial application, and after the intermediate review in January 2008. Indeed, for the five years between January 2008 and January 2013, the County Superintendent has no authority to terminate the demonstration project, even if, to take an extreme example, the Mayors Partnership appears demonstrably incapable of implementing a sound educational program at the schools.^[5] There are no continuing oversight or monitoring powers.^[6] No public school system authority is authorized to demand responses to inquiries concerning financial or other matters. There is no unlimited access to inspect or observe any part of the demonstration project schools at any time. There is no provision for public school system authorities to terminate the demonstration project for a violation of law. There is no provision for public school system authorities to demand steps be taken to cure problems as they occur. There is no provision for the State Board of Education to take corrective action (or terminate the program) in the face of grave breaches of financial, fiduciary, or educational responsibilities.^[7] While the clusters of schools in the demonstration project are still subject to the governing statutes, when waivers have not been obtained, it is apparent that the very purpose of the demonstration project is to give complete operational control over these schools, for six years, to the Mayors Partnership. In the absence of any real oversight by public school system authorities, this is unconstitutional.

With respect to the provisions of the Romero Act regarding the Council of Mayors, the question is somewhat closer. The Romero Act transfers many elements of management and control over the schools in the LAUSD from the Board to the District Superintendent. Standing alone, these provisions do not work a violation of article IX, section 6 of the Constitution, in that the District Superintendent, as a Board employee, is a part of the public school system. However, the Romero Act goes further and gives the Council of Mayors the power to ratify the appointment, contract term, contract renewal, refusal to renew a contract, or removal of the district superintendent. (Ed. Code,  35921, subd. (b).) The question thus presented is whether the effective grant of veto power over the selection of the District Superintendent to an entity that is not part of the public school system is an unconstitutional transfer of part of the public school system.^[8] We are forced to conclude that it is. The cases construing article IX, section 6 are concerned with ultimate control being in the hands of the public school system. (See Wilson v. State Bd. of Education, supra, 75 Cal.App.4th at p. 1142 [Charter schools are under the jurisdiction of chartering authorities; chartering authorities are authorities within the Public School System, . . . hence no violation of article IX, section 6 can be stated]; California Teachers Assn. v. Board of Trustees, supra, 82 Cal.App.3d at p. 255 [private driver training schools are permitted to teach public school students when the teaching is done under the control and supervision of the school district].) Here, ultimate control is with the Council of Mayors. While the Board can make the initial selection of the District Superintendent (or whether to fire, or retain an individual in that position), that act is for naught without the approval of the Council of Mayors. As such, control over the very crucial selection of the District Superintendent is out of the hands of the public school system. This is a violation of article IX, section 6 of the Constitution.^[9]

4. The Unconstitutional Provisions of the Romero Act Are Not Severable

Having concluded that the great bulk of the Romero Act is unconstitutional, the issue becomes whether those provisions can be severed, allowing the remainder of the Romero Act to go into effect. For the unconstitutional portions of a law to be severable, they must be grammatically, functionally, and volitionally separable from the remainder of the law. (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821.) The dispute in this case is over the third factor. This determination focuses on whether the remainder of the statute would have been adopted by the Legislature had it foreseen the partial invalidity of the statute. (Ibid.)

In this case, we are guided by the legislative history. As the Romero Act proceeded through the Legislature, a severability clause was added by amendment on August 8, 2006. (Assem. Bill No. 1381 (2005‑2006 Reg. Sess.)  4, as amended Aug. 8, 2006.) On August 28, 2006, the Senate deleted the severability clause. (Assem. Bill No. 1381 (2005‑2006 Reg. Sess.), as amended Aug. 28, 2006.) The Assembly Republican Bill Analysis regarding this version of the bill sets forth, at length, the political maneuvering that resulted in the deletion of the severability clause. It appears that the possible future invalidation of the Council of Mayors and Mayors Partnership aspects of the Romero Act had been considered, given the Legislative Counsels opinions. Certain proponents of the Romero Act were concerned that if those provisions were, in fact, invalidated,  what was left would be a step backward.  (Assem. Republican analysis of Assem. Bill 1381 (2005‑2006 Reg. Sess.) as amended Aug. 28, 2006, p. 9.) They were concerned that provisions strengthening the District Superintendent and weakening the Board would not be desirable if the Council of Mayors did not have control over the appointment of the District Superintendent. They were also concerned that the concessions giving teachers added input in curriculum decisions  would strengthen employee unions at the expense of actual school reform.  (Id. at p. 10.) Therefore, they successfully lobbied for the removal of the severability clause.^[10]

Since the severability clause was removed in light of concerns that some proponents of the bill did not, in fact, want the provisions of the Romero Act to be severable, we conclude that the Legislature had considered the possibility of partial invalidity of the Romero Act, and had concluded that it would not, in fact, want the remainder of the law to be effective.^[11] We therefore conclude the provisions of the Romero Act are not severable.

Conclusion

The citizens of Los Angeles have the constitutional right to decide whether their school board is to be appointed or elected. If the citizens of Los Angeles choose to amend their charter to allow the Mayor to appoint the members of the Board, such amendment would indisputably be proper. What is not permissible is for the Legislature to ignore that constitutional right and to bypass the will of the citizens of Los Angeles and effectively transfer many of powers of the Board to the Mayor, based on its belief, hope, or assumption that he could do a better job. The trial courts order granting the writ prohibiting the enforcement of the Romero Act in its entirety must be affirmed.

DISPOSITION

The judgment is affirmed. Plaintiffs shall recover their costs on appeal.

CERTIFIED FOR PUBLICATION

CROSKEY, J.

We Concur:

KLEIN, P. J. KITCHING, J.

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^[1] An examination of the voter materials for the proposition that added this language provides no insight into the voters intent. (Ballot Pamp., Gen. Elec. (1946) summary and arguments related to Prop. 3.)

^[2] Preliminarily, we reject the Mayors contention that the article IX, section 6 prohibition against the transfer of part of the public school system does not apply to acts of the Legislature. The Mayor takes the position that, since the Legislature can authorize entities to maintain the public schools, any entity authorized by the Legislature to do so is, by necessity, part of the public school system. We disagree. As the Supreme Court stated in a slightly different context, The act of delegation does not change a private body into a public body and thereby validate the very delegation the [Constitution] prohibits. (County of Riverside v. Superior Court, supra, 30 Cal.4th at p. 294.) Similarly, we conclude the act of delegation of authority over a part of the public school system does not change the entity to whom the authority was delegated into a part of the public school system. Moreover, if the Legislature could delegate authority over the public schools at will, there was little purpose in the voters adoption of article IX, section 14, a provision then deemed necessary in order to give to the Legislature the authority to delegate increased authority over the public schools to the governing boards of all school districts. (See fns. 4 & 15, ante.)

^[3] We are unpersuaded by the suggestion that the presence of a single representative of the LAUSD in the Mayors Partnership with respect to each cluster transforms the Mayors Partnership into a part of the public school system. This is particularly the case where, as here, the duties of the LAUSD employee are not supervisory, but simply defined as running the Office of Parent Communication.

^[4] The chartering authority can be either a local school district governing board, a county board of education, or the State Board of Education. (Wilson v. State Bd. of Education, supra, 75 Cal.App.4th at p. 1132.)

^[5] Indeed, if the Mayor is not reelected to a second term, a new individual will direct the Mayors Partnership from July 2009 to January 2013, without any opportunity for the County Superintendent to review any changes in the operation of the cluster schools the new mayor may choose to make.

^[6] In his reply brief, the Mayor argues that Education Code section 1240 provides the County Superintendent with continuing authority over the schools in the demonstration project. That section sets forth the general duties of a county superintendent of schools, including the duty to [v]isit and examine each school in his or her county at reasonable intervals to observe its operation and to learn of its problems. (Ed. Code,  1240, subd. (c)(1).) Yet the priority objective of those visits is to determine: (a) that sufficient textbooks are present; (b) that the facility does not pose an emergency or urgent threat to health or safety; and (c) the accuracy of the school accountability report card with respect to textbooks and facilities. (Ed. Code,  1240, subd. (c)(2)(E).) What is missing is any provision providing the County Superintendent any authority to cure problems, or demand that the Mayors Partnership cure problems, discovered at the schools.

^[7] The Mayor relies on Education Code section 52055.5, which allows the State Superintendent to take control over a school when it fails to show significant progress two years after receiving funds under the Immediate Intervention/Underperforming Schools Program. (Ed. Code,  52053, et seq.) That the State can intervene in certain specifically-defined dire circumstances does not demonstrate any real supervision, management or control particularly when there is no guarantee the cluster schools will even be part of the Immediate Intervention/Underperforming Schools Program.

^[8] The Mayor argues by analogy. The Mayor contends that the Council of Mayors ratification of the selection of the District Superintendent is akin to the U.S. Senates power to confirm nominees to the executive and judicial branches. (U.S. Const., art. II,  2.) The Mayor argues that since the U.S. Senate is not thereby granted management and control over the executive and judicial branches, the Romero Act does not grant the Council of Mayors management and control over the functions performed by the District Superintendent. The analogy effectively serves to clarify the issue. The U.S. Constitution is set up as a system of checks and balances, in which powers are spread among the three branches so that no one branch has unrestrained authority. In contrast, article IX of the California Constitution addresses no such separation of power concerns, but rather is the means by which the people of California have constitutionally vested complete authority over the public school system in the school districts and other agencies authorized to maintain it. The Mayors argument simply begs the question as to whether the Legislature may grant to a non-member of the public school system veto power over the appointment of an important official in that system without running afoul of that constitutional mandate.

^[9] For similar reasons, the provision of the Romero Act granting the Southeast Cities Schools Coalition the power to ratify the selection of the local district superintendent serving those cities also violates article IX, section 6.

^[10] The legislative history also indicates the Legislature was aware that there was already a severability clause in the Education Code (Ed. Code,  6). Some took the position that the deletion of the severability clause from the Romero Act would have no effect as the Education Codes severability clause still existed. In his Reply brief on appeal, the Mayor suggests that the Legislature did not delete the severability clause until after being assured by Legislative Counsel that such a clause was unnecessary in light of the general severability provision in Education Code section 6. This is untrue. The referenced Legislative Counsels opinion is dated November 6, 2006 well after the severability clause had been deleted, the Romero Act had been enacted, and the plaintiffs had already filed their petition for writ of mandate challenging the law. (Ops. Cal. Legis. Counsel, No. 0621957 (Nov. 6, 2006) Severability Clause: Education Code.)

^[11] On appeal, the State defendants argue only that the Council of Mayors provision or the Mayors Partnership provision should be considered severable if only one of the two is invalidated. They do not argue that the remainder of the Romero Act should go forward in the event, as we have concluded, that both provisions are unconstitutional.