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

Appeal from a judgment of the Superior Court of Los Angeles County, Dzintra Janavs, Judge. Affirmed.

Edmund G. Brown, Jr., Attorney General, Stacy Boulware Eurie and Paul H. Dobson, Assistant Attorneys General, Christopher E. Krueger, Gregory M. Cribbs and Susan K. Leach, Deputy Attorneys General for Defendants and Appellants Arnold Schwarzenegger, as Governor of the State of California, John Chiang, as Controller, and State Board of Education.

Rockard J. Delgadillo, City Attorney, Valerie L. Flores, Heather E. Davis and Harit U. Trivedi for Defendant and Appellant Antonio Villaraigosa, as Mayor of the City of Los Angeles.

Munger, Tolles & Olson, Vilma S. Martinez, Bradley S. Phillips, Daniel P. Collins and Paul J. Watford for Intervenors and Appellants.

Los Angeles Unified School District, Kevin S. Reed, Donald L. Davis and Georgina C. Verdugo for Plaintiff and Respondent Los Angeles Unified School District.

Olson, Hagel & Fishburn, Deborah B. Caplan, N. Eugene Hill, Lance H. Olson, Erin V. Peth; Strumwasser & Woocher, Fredrich D. Woocher, Michael Strumwasser; Milbank, Tweed, Hadley & McCloy, Gregory Evans, Alisa Schlesinger, Patricia J. Quilizapa and Paul M. Torres for Plaintiffs and Respondents (Other than AALA and Diane Watson).

Parker & Cover and Henry R. Kraft for Plaintiff and Respondent AALA.

Diane E. Watson, in pro. per., for Plaintiff and Respondent.

_______________________________________

Mayors in certain large cities around the country have been granted control of the school districts in those cities. Antonio Villaraigosa, the Mayor of the City of Los Angeles (the Mayor), sought similar control over the Los Angeles Unified School District (LAUSD) through state legislation. The California Constitution grants to the voters within the LAUSD the right to determine whether their board of education is to be elected or appointed. Therefore, the Legislature could not simply enact a statute granting the Mayor authority to appoint the members of the LAUSD Board of Education (the Board). Moreover, the California Constitution also prohibits the transfer of authority over any part of the school system to entities outside of the public school system. Therefore, the Legislature could not simply enact a statute transferring control over the LAUSD to the Mayor. The Legislature attempted to avoid these prohibitions with the enactment of Assembly Bill 1381 (2005-2006 Reg. Sess.), known as the Romero Act.

At issue in this appeal is the constitutionality of the Romero Act. At the heart of that statute are two main provisions: (1) the transfer of substantial power from the Board to the LAUSD District Superintendent (the District Superintendent), and the grant to the Mayor of authority to ratify the appointment of the District Superintendent; and (2) the transfer of complete control of three low‑performing High Schools (and their feeder schools) from the Board to a partnership led by the Mayor.

We conclude that the Romero Act is an unconstitutional attempt to do indirectly what the Legislature is prohibited from doing directly. The Legislature cannot overrule the LAUSDs voters determination that their Board is to be elected rather than appointed, nor may it transfer authority over part of the school system to entities outside of the public school system. We will therefore affirm the trial courts issuance of a writ of mandate preventing the enforcement of the Romero Act.

FACTUAL AND PROCEDURAL BACKGROUND

1. Controlling Constitutional and Related Education Code Provisions

Our discussion of the factual background of this case, as well as the political processes which led to the enactment of the Romero Act, is best understood in the context of the overall scheme of constitutional and statutory provisions establishing and governing the educational system in California.

The controlling constitutional provisions are found in article IX of the California Constitution. Section 1 provides that the Legislature shall encourage by all suitable means the promotion of education. The Constitution provides for three different types of agencies to govern education in California: state, county, and district.

At the statewide level, the Constitution provides for the election of a statewide Superintendent of Public Instruction. (Cal. Const., art. IX,  2.) The Constitution also provides for a State Board of Education, and requires that the Legislature to provide for its election or appointment. (Cal. Const., art. IX,  7.)

At the county level, there is to be a county superintendent of schools and county board of education. (Cal. Const., art. IX,  3, 7.) A countys charter may provide for an elected county board of education (Cal. Const., art. IX,  3.3); in the absence of such a provision, the Legislature is to provide whether the county board of education is elected or appointed (Cal. Const., art. IX,  7). The Constitution leaves it to the voters of each county to determine whether the superintendent of schools is to be elected by the voters or appointed by the county board of education (Cal. Const., art. IX,  3).

At the district level, the state is to be organized, by the Legislature, into school districts. The Legislature shall have power, by general law, to provide for the incorporation and organization of school districts, high school districts, and community college districts, of every kind and class, and may classify such districts. (Cal. Const., art. IX,  14.) The Constitution references the governing boards of school districts without specifically defining them. (Ibid.) The gap is filled by the Education Code, which provides that [e]very school district shall be under the control of a board of school trustees or a board of education. (Ed. Code,  35010, subd. (a).) The Constitution permits charter cities to establish, in their charters, for the manner in which, the times at which, and the terms for which the members of boards of education shall be elected or appointed, for their qualifications, compensation and removal, and for the number which shall constitute any one of such boards.^[1] (Cal. Const., art. IX,  16.) Therefore, the board of education provided for in a city charter is the governing board of the relevant school district. The Legislature has provided that the governing board of any school district^[2]may employ a district superintendent. (Ed. Code,  35026.) The Legislature has imposed certain record keeping and reporting duties on the governing boards of school districts (Ed. Code,  35250); the governing board is permitted to delegate any of these duties to the district superintendent (Ed. Code,  35026). Governing boards of larger school districts^[3]may also appoint a director of school building planning, to be responsible for the coordination of the building program of the district. (Ed. Code, 35045.)

Under the Constitution, the public schools themselves exist at the district level and are governed by the school districts. Section 5 of article IX provides, The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year . . . . (Cal. Const., art. IX,  5.) 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. (Cal. Const., art. IX,  6.) Section 8 of article IX confirms that [n]o public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools . . . . (Italics added.)

The Legislature may authorize the governing boards of all school districts to initiate and carry on any programs, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established.^[4] (Cal. Const., art. IX,  14.) The Legislature has done so. Education Code section 35160 provides, On and after January 1, 1976, the governing board of any school district may initiate and carry on any program, activity, or may otherwise act in any manner which is not in conflict with or inconsistent with, or preempted by, any law and which is not in conflict with the purposes for which school districts are established.

2. The LAUSD and the Battle for Its Control

The LAUSD is the largest school district in California. It is divided into eight local districts that cover 28 municipalities and multiple unincorporated areas. It has 858 K‑12 schools serving 727,000 students, and an additional 150,000 pre‑K and adult students. The Districts total budget is in excess of $13 billion per year. At least 80% of the students in LAUSD come from economically disadvantaged families; 43% of LAUSD students are English-Language Learners.

Los Angeles is a charter city. Section 801 of the Los Angeles City Charter provides for an elected board of education, containing seven members. In 2000, the Board hired a new superintendent, who centralized the district and implemented various reforms. The new programs have generated some positive results. Elementary school student achievement on state assessments has improved since 2000; however, middle and high school students have not improved their test scores. While overall student performance data for LAUSD is not impressive, other school districts in California have achieved worse results. For example, 32.4% of LAUSD students are considered proficient in Language Arts and 38.1% are considered proficient in Math. However, Santa Ana Unified School District students achieved only 26.8% and 33.5% respectively, and San Bernardino City Unified School District students had even lower numbers. When considering the levels of progress made, LAUSDs gains have outpaced statewide gains in several respects. Thus, while it cannot be disputed that LAUSD is not as successful as it should be, it also cannot be disputed that LAUSD is no worse than a number of other districts in California.

In some large cities across the country, mayors have sought and obtained authority over their local school districts. In the 2005 Los Angeles mayoral runoff election, the two candidates, then-Mayor James Hahn and then-Councilmember Villaraigosa, each announced that they would seek some measure of control over the LAUSD. Villaraigosa stated that, if elected, he would seek ultimate authority over the LAUSD, as in some other major cities. Villaraigosa was elected Mayor on May 17, 2005.

During this time, then-Los Angeles City Council President Alex Padilla and then‑Board President Jose Huizar had been meeting to discuss ways to identify the best strategy to improve student achievement at LAUSD. On April 27, 2005, the City Council approved their plan for the creation of the Presidents Joint Commission on LAUSD Governance. The Commission began its work that summer, and, on July 31, 2006, issued its final report. The Commission recommended streamlining the role of the Board and decentralizing decisionmaking. As the issue of mayoral control of the school district had been raised in the mayoral campaign, the Commission specifically considered whether to recommend increased mayoral control of the school district. The Commission recommended that the elected Board continue to govern the LAUSD but with the increased involvement of municipal leaders. The Commission recommended that municipal leaders be given input into certain decisions, such as the selection of the District Superintendent, but not that they be given ultimate decision‑making power. A minority of Commission members issued a Minority Report concluding that the LA Mayor must drive the ship of decentralization that will bring improved student achievement and success. They therefore recommended that municipal leaders not only have involvement in the selection of the District Superintendent, but also the power to ratify the District Superintendents selection.

In the meantime, the Legislature was considering legislation to give the Mayor power over the LAUSD. On August 18, 2005, the Legislative Counsel^[5]issued an opinion on a then-pending Senate Bill which would have authorized the Mayor of Los Angeles, upon making a finding of educational failure, to fill by appointment any vacancies on the LAUSD Board of Education (and continue to fill such vacancies by appointment upon the expiration of the terms of incumbent board members). The Legislative Counsel concluded that the bill would be unconstitutional, in that it would violate Los Angeless right under California Constitution, article IX, section 16, to choose whether its board of education members are elected or appointed. (Ops. Cal. Legis. Counsel, No. 0518337 (Aug. 18, 2005) Los Angeles Unified School District Board of Education: Mayoral Appointment of Members (S.B. 767), pp. 1, 5.)

The Legislative Counsel was then asked whether authority or control over educational functions currently performed by a school district may be transferred by statute to the mayor of a charter city. On July 17, 2006, the Legislative Counsel issued its opinion that such a statute would be unconstitutional; in that it would violate California Constitution, article IX, section 6s prohibition against the transfer of any part of the public school system from the authority of the public school system to any authority outside the public school system. (Ops. Cal. Legis. Counsel, No. 0618549 (July 17, 2006) School District: Transfer Of Authority To Mayor Of Charter City, pp. 1, 7.) Finally, the Legislative Counsel was asked whether transferring control over the educational functions of a school district to the mayor of a charter city would be permissible if the County Superintendent of Schools were given authority to oversee the mayors performance. The Legislative Counsel concluded this would still be an unconstitutional transfer of power. (Ops. Cal. Legis. Counsel, No. 0620862 (August 21, 2006) School District: Transfer of Authority to Mayor of Charter City, pp. 1, 4.)

3. The Romero Act

On September 8, 2006, the Romero Act was enacted into law. The Romero Act, which is called the Los Angeles Unified School District: Gloria Romero Educational Reform Act of 2006, makes, by statute, several key changes in the governance of the LAUSD. Specifically, it adds a new chapter to the Education Code entitled, Los Angeles Unified School District Administration. (Ed. Code, Part 21, Ch. 5.) Section 35900 is added to the Education Code and sets forth the legislative findings which the Legislature believed justified the Romero Act. These findings include 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).) The Legislature also found that [t]he freedom to deviate from the strictures of generally applicable education statutes and regulations while maintaining the constant commitment to fairness and equity, and to increasing academic achievement among all pupils regardless of background, is central to the success of quality schools in California and is appropriate, as a concept, for the unique circumstances of the Los Angeles Unified School District. (Ed. Code,  35900, subd. (a)(2).) The Legislature made no findings that LAUSD was failing in its obligation to deliver a constitutionally adequate education to its students.

a. The Council of Mayors

The first major change brought about by the Romero Act is the establishment of the Council of Mayors. The Council of Mayors is to be comprised of the elected mayor of each city any part of which is located within the attendance boundaries of the LAUSD.^[6] (Ed. Code,  35920, subd. (a).) The Council of Mayors acts by 90 percent of the weighted vote of the total membership of the council. The weighted vote of each member of the [C]ouncil of [M]ayors is equal to the proportion of the population of the LAUSD that are residents of the city of the individual member . . . to the total population of residents of the LAUSD. (Ed. Code, 35920, subd. (b).) It is undisputed that 82% of the LAUSD population resides in the City of Los Angeles. It is therefore clear that the Council of Mayors can take no action without the agreement of the Mayor. The key power granted to the Council of Mayors is the power to ratify the appointment, contract term, contract renewal, refusal to renew a contract, or removal of the district superintendent.^[7] (Ed. Code,  35921, subd. (b).) While the statute requires the Council of Mayors to provide to the Board the reasons for its refusal to ratify any such decision of the Board (ibid.), it does not set any limits on the Councils discretion to refuse to ratify. In short, the Council of Mayors provisions effectively grant to the Mayor complete veto power over the selection of the District Superintendent.

The District Superintendent of the LAUSD is, in turn, granted powers that far exceed the powers of the district superintendent of any other school district in California. Education Code section 33050 provides that the governing board of a school district may, after a public hearing, request the State Board of Education to waive any controlling provision of the Education Code or governing regulation, with certain exceptions. Under the Romero Act, it is the District Superintendent of the LAUSD who can seek such a waiver, not the LAUSD Board of Education. (Ed. Code,  35910, subd. (a).) Moreover, if the State Board of Education does not act on a waiver request by the District Superintendent within 60 days, the request is deemed approved for two years. (Ed. Code,  35910, subd. (c).)

Other powers granted the District Superintendent by the Romero Act include: the authority to assign and reassign a principal of a school within the LAUSD (Ed. Code,  35911, subd. (b)); the authority to make all employment decisions for all nonrepresented personnel of the LAUSD (Ed. Code,  35911, subd. (f)); authority over the contracting operations of the LAUSD, including, but not limited to, the negotiation and execution of contracts^[8](Ed. Code,  35912, subd. (a)(1)); the preparation of the proposed budget for the LAUSD, which is to be submitted to the Council of Mayors for review and comment and the Board of Education for final approval (Ed. Code,  35913, subd. (a)); and the responsibility to develop and manage the facilities program for the LAUSD, with the input of the Council of Mayors (Ed. Code,  35915, subds. (a)(1) & (a)(2)).

In short, after the Legislative Counsel had indicated its belief that it would be unconstitutional for the Mayor to be statutorily granted appointment power over the Board, and that it would likewise be unconstitutional for the powers over education possessed by the Board to be statutorily transferred to the Mayor, the Romero Act transferred many of the powers over education possessed by the Board to the District Superintendent, and effectively gave the Mayor veto power over the appointment of the District Superintendent.

b. The Mayors Partnership

The second major change worked by the Romero Act is the creation of The Los Angeles Mayors Community Partnership for School Excellence (Mayors Partnership). (Ed. Code,  35930.) The Mayors Partnership is to consist of the Mayor, in partnership with the LAUSD, parent and community leaders and organizations, and school personnel and employee organizations. (Ed. Code,  35931, subd. (a)(1).) The Mayors Partnership is to exercise control, discussed in further detail below, over three clusters of low-performing schools in the City of Los Angeles, as a demonstration project. A school cluster consists of a poor-performing high school and its feeder middle and elementary schools, as well as other programs, including early childhood programs, continuation schools, and adult education programs. While the Romero Act is somewhat vague as to selection of the members of the Mayors Partnership, it states that the Mayor shall ensure that each of the clusters is represented in the partnership by at least two representatives from parent organizations who are not also employees of the district, at least two community leaders who are not from a parent or employee organization, and one classroom teacher, one classified employee, and one school administrator selected from those nominated by employee organizations of classroom teachers, classified employees, and school administrators, respectively, who are employed at a school within the cluster. (Ed. Code,  35931, subd. (a)(2).) The LAUSDs participation is limited to one full-time employee appointed by the District Superintendent for each of the three clusters; that employee is required to perform the functions of the Office of Parent Communication^[9]for the cluster of schools to which he or she is assigned. (Ed. Code,  35931, subds. (a)(2) & (a)(3).)

The Mayors Partnerships control of the cluster schools is complete. Notwithstanding any other provisions of law, and except for the authority to negotiate and enforce collective bargaining agreements, all authority exercised by the board and the district superintendent with respect to the schools in the demonstration project shall be transferred to the [Mayors Partnership]. (Ed. Code,  35932, subd. (a).) This includes the authority to seek waivers from the State Board of Education and authority to operate the schools in the demonstration project with maximum flexibility and efficiency. (Ibid.)

Story Continued as Part II ..

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^[1] There are also provisions indicating that, when the boundaries of the school district expand beyond the boundaries of the city, any change to the citys charter regarding the board of education must be submitted to, and approved by a majority of, all of the voters within the school district, including those outside of the city. (Cal. Const., art. IX,  16.)

^[2] The provision is limited to those school districts employing eight or more teachers.

^[3] The provision is limited to those school districts having an average daily attendance of 10,000 or more.

^[4] This language was added in 1972, by Proposition 5. At the time, the Legislature was considering a bill to grant school district governing boards increased decision‑making authority. The Legislative Counsel issued an opinion indicating that a constitutional amendment would be necessary to allow the Legislature to enact such a statute, on the basis that the Legislature did not then possess the constitutional authority to make the proposed delegation to school district governing boards. (Ops. Legis. Counsel, No. 7167 (March 20, 1972) Powers of School Districts, pp. 1-4.) The ballot arguments both for and against Proposition 5 agreed that the proposition would have the effect of allowing the Legislature to delegate increased decision-making authority to local school boards. (Ballot Pamp., Gen. Elec. (1972) argument in favor of Prop. 5, argument in opposition to Prop. 5.)

^[5] The Legislative Counsel is selected on a non-partisan basis by concurrent resolution of the Legislature. (Gov. Code, 10201, 10203.) One of the primary duties of the Legislative Counsel is to assist in the preparation and consideration of proposed legislation. (Gov. Code, 10231, 10234.) In practice, this frequently involves submission of opinions as to the constitutionality of a proposed statute.

^[6] For unincorporated portions of the county within the LAUSD, the appropriate member of the Los Angeles County Board of Supervisors is given a seat on the Council of Mayors.

^[7] The Council of Mayors is also granted the right to select a representative to participate in all aspects of the selection and evaluation by the Board of the District Superintendent, including closed session meetings of the Board where such topics are discussed. (Ed. Code, 35921, subd. (a).)

^[8] Were there any doubt, the Legislature added, The intent of the Legislature in enacting this section is to transfer the responsibility for contracting operations, including appropriation and payment from the board to the district superintendent. (Ed. Code,  35912, subd. (c).) The Romero Act does not alter the rights or requirements of any applicable collective bargaining agreements or contracts. (Ibid.)

^[9] The Romero Act creates the Office of Parent Communication and gives control of that office to the District Superintendent. The District Superintendent is required to establish an Office of Parent Communication that may be staffed by an ombudsperson or similar employee. The office shall assure that the LAUSD complies with the processes for receiving and addressing parent complaints . . . and shall assure that the LAUSD complies with the requirements regarding parent information and the right of parents to participate in the education of their children . . . . (Ed. Code,  35911, subd. (j).)