Californians for Justice Education Fund v. State Bd. of Ed.

Filed 9/29/06 Californians for Justice Education Fund v. State Bd. of Ed. CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

I. Introduction

Appellant Californians for Justice Education Fund (CJEF)[1] appeals from the denial of its petition for writ of mandate and motion for a peremptory writ. CJEF contends that respondents were required by state law to complete their study of alternatives to the California high school exit exam (CAHSEE), pursuant to Education Code section 60856,[2] in sufficient time to enable the Legislature to consider that study prior to the initial enforcement of the statute precluding the issuance of high school diplomas to students failing either portion of the CAHSEE. (§ 60851.) We disagree, and affirm the trial court judgment.

II. Facts and Procedural Background

In 1999, the California Legislature adopted legislation requiring that all public high school students in California pass an exit examination (the CAHSEE) in order to receive a high school diploma (the CAHSEE diploma requirement). (Ed. Code, § 60851; see Stats. 1999-2000, 1st Ex. Sess., ch. 1, § 5.) The CAHSEE diploma requirement was to be implemented starting with the graduating class of 2004. Later, as authorized by statute, respondent State Board of Education (the Board) decided that the CAHSEE diploma requirement would be applied for the first time to the graduating class of 2006. (§ 60859.)

When the CAHSEE statutory scheme was adopted, the Legislature also enacted section 60856, which reads as follows: “After adoption and the initial administrations of the high school exit examination[,] the [Board], in consultation with the Superintendent of Public Instruction [SPI], shall study the appropriateness of other criteria by which high school pupils who are regarded as highly proficient but unable to pass the high school exit examination may demonstrate their competency and receive a high school diploma. This [sic] criteria shall include, but is [sic] not limited to, an exemplary academic record as evidenced by transcripts and alternative tests of equal rigor in the academic areas covered by the high school exit examination. If the [Board] determines that other criteria are appropriate and do not undermine the intent of this chapter that all high school graduates demonstrate satisfactory academic proficiency, the board shall forward its recommendations to the Legislature for enactment.” We will refer to the study required by this statute as a section 60856 study, or study of alternatives.

The CAHSEE was administered for the first time in the spring of 2001, at which time members of the graduating class of 2004, who were then in the ninth grade, were given two opportunities to take it, but were not required to do so. It was administered two more times in the spring of 2002, and then six more times during the 2002-2003 school year.

In May 2003, the Board’s CAHSEE consultant (the Human Resources Research Organization, or HumRRO) released a report setting forth the results of its legislatively mandated[3] study of the validity and appropriateness of the CAHSEE. The HumRRO report concluded that the CAHSEE satisfied all professional standards for implementation as a high school graduation requirement, but also expressed some concerns about the fairness of imposing the CAHSEE diploma requirement on students who could legitimately claim that the public school system had not adequately prepared them to pass the exam. Based on these concerns, HumRRO identified a number of concerns for the Board to consider in deciding whether or not to defer implementation of the CAHSEE diploma requirement. The HumRRO report also briefly discussed several other measures that the Board could adopt, including: lowering the passing standards; reducing the scope of the subject matter covered by the test; allowing high scores on one section to compensate for non-passing scores on another section; permitting waivers based on high grades in relevant courses; or allowing students to present portfolios of their work.

At its meetings in May and July 2003, the Board considered and discussed the recommendations and suggestions discussed in the HumRRO report. Ultimately, at its July 2003 meeting, the Board decided to exercise the discretion conferred on it by the Legislature (§ 60859) to defer implementation of the CAHSEE diploma requirement until the scheduled graduation of the class of 2006. The Board also modified the “blueprint” for the CAHSEE in a number of ways, which included reducing its scope by eliminating one of the essay questions from the English language skills portion. The Board did not, however, adopt any of the other measures, such as a compensatory scoring system, that were described in the HumRRO report.

In October 2003, the Legislature directed the SPI and the Board to commission a study regarding alternatives to the CAHSEE specifically for “pupils with disabilities.” (§ 60852.5, added by Stats. 2003, ch. 803, § 1.) In compliance with this mandate, respondents retained an independent consultant, WestEd, which released its report (the WestEd report) on April 28, 2005. During the interval between July 2003 and April 2005, respondents did not conduct or commission any further study of alternatives to the CAHSEE other than that conducted by WestEd.

The WestEd report noted on its face that its assignment precluded it from “making recommendations for assessment policies directly pertaining to . . . populations” other than pupils with disabilities. Nonetheless, WestEd’s nationwide review of exit exam alternatives analyzed and discussed performance assessment formats that had been applied in other states to pupils without disabilities, and the WestEd report noted that “[m]any of our recommendations are, in fact, applicable to other student populations” other than students with disabilities.

The Board considered and discussed the WestEd report at its May 2005 meeting, but took no action on it. At the same meeting, the Board also took note that legislation (AB 1531) had been introduced that would have authorized local school district superintendents to approve alternative performance assessments which students in their districts could substitute for one or both parts of the CAHSEE. The California Department of Education (CDE) recommended to the Board that it take an official position opposing AB 1531, and the Board agreed to do so. AB 1531 passed in both houses of the Legislature, but was vetoed by the Governor on October 7, 2005.

In August 2005, several CDE staff members met to consider various alternative assessment methods discussed in the WestEd report and in other sources, as those alternatives might apply to non-disabled as well as disabled students. These discussions did not, however, result in any recommendation to the SPI and the Board, and thus did not prompt any consideration of CAHSEE alternatives by respondents themselves, as opposed to their staff.

In September 2005, HumRRO issued another in an ongoing series of reports regarding its study of the CAHSEE’s validity and impact. This report mentioned the possibility of alternatives to the CAHSEE, such as senior-year portfolios, but ultimately recommended that the CAHSEE diploma requirement be implemented as scheduled, starting with the class of 2006.

In October and November 2005, the law firm that represents CJEF in this litigation, as well as other attorneys representing the plaintiff class in litigation seeking to improve the quality of California public schools (the Williams litigation), each wrote separately to respondents, asserting that they had violated section 60856 by failing to conduct a study of alternatives, and urging them to do so. On November 30, 2005, the SPI issued a “Letter to All Interested Persons“ which invited the public to participate in an open meeting on alternatives to the CAHSEE, to be held on December 15, 2005.

Written comments submitted by two education scholars in connection with the meeting on December 15, 2005, urged the SPI to consider adopting alternative assessment measures, particularly but not exclusively for English learners and pupils with disabilities, including alternative tests, coursework that reflected state learning standards, and local or statewide performance assessments. The comments noted, however, that it would be difficult to implement any of those alternatives in time to benefit students scheduled to graduate from high school in 2006. Some of the speakers at the meeting supported the CAHSEE and opposed the adoption of alternatives.

On March 2, 2006, a deputy superintendent in the Department of Education sent a memo to the members of respondent Board in anticipation of their meeting to be held on March 8, 2006. The memo summarized the proceedings at the December 15, 2005 meeting, and noted that many of the members of the public who had appeared at the meeting advocating the adoption of alternatives “did not provide sufficient evidence that their proposed options . . . were of equivalent rigor to the CAHSEE.” The report indicated that “[a]fter reviewing all the options available,” respondent SPI had “concluded that there is no practical alternative available which would ensure a student awarded a high school diploma has met the minimal requirements contained in the CAHSEE.”

The March 2, 2006 memo attached a letter from respondent SPI, dated January 6, 2006, setting forth the basis for his conclusion in more detail, and specifying reasons why he had rejected each suggested alternative. With respect to the possibility of a state-developed alternative test, the SPI commented that, although this alternative would address his concerns regarding statewide consistency, “it would be very costly to develop,” would still involve difficulties in guaranteeing equivalence “given the need for local scoring,” and in any event “could not be implemented for the class of 2006 as any reasonable implementation would be two to three years out.” The SPI emphasized that the absence of alternatives to the CAHSEE “does not mean, as some have said, that those students who have been unable to pass the exam will be denied a diploma indefinitely. It simply means that their basic education is not complete and they must continue on through our [public school] system, adult education, or community colleges to obtain the necessary skills to warrant receipt of a diploma.”

At its meeting on March 8, 2006, respondent Board considered an agenda item entitled “California High School Exit Examination: Examination of Alternatives Under California Education Code Section 60856.” (Italics omitted.) The Board voted unanimously, with one abstention, in support of a resolution finding that “at this time, . . . there are no other criteria [i.e., alternatives to the CAHSEE] that are appropriate and that do not undermine the Legislature’s intent that all high school graduates demonstrate satisfactory academic proficiency, as set forth in [section] 60856,” and that the Board therefore would not recommend that the Legislature enact any alternatives to the CAHSEE.

On April 17, 2006, CJEF filed a verified petition for writ of mandate in the Alameda County Superior Court, together with a motion for issuance of a peremptory writ. The resulting proceeding was coordinated into Judicial Council Coordinated Proceeding No. 4468, along with two other pending actions involving the CAHSEE, Valenzuela v. O’Connell (Super. Ct. Alameda County, No. CPF06506050) (the Valenzuela litigation[4]) and Kidd v. California Department of Education (Super. Ct. Alameda County, No. 2002049636), and the coordinated proceeding was assigned to Judge Robert Freedman.

On May 16, 2006, following briefing and oral argument on CJEF’s motion for a peremptory writ, Judge Freedman issued an order denying the motion and dismissing the writ petition. In his order, Judge Freedman rejected respondents’ contention that their consideration of the WestEd report amounted to a section 60856 study, and agreed with CJEF that “the evidentiary record shows that [r]espondents did not engage in a ‘study’ of alternatives until very late in the process.” Thus, Judge Freedman understood “the pivotal issue” in the case to be “whether a showing of ‘late’ compliance with the statutory requirement is enough to warrant the relief requested,” including a temporary delay of the CAHSEE diploma requirement.

Judge Freedman went on to note that section 60856 does not include any language expressly requiring the study of alternatives to be completed within a specified time. Rejecting CJEF’s “creative attempt to characterize the statute as inclusive of a mandatory timing provision,” he concluded that “without [that] key element[,] [CJEF’s] argument fails.” Accordingly, Judge Freedman held that CJEF had not established that respondents had failed to discharge a mandatory duty to complete a section 60856 study within any specific time limit, and therefore denied their petition. This timely appeal followed.[5]

III. Discussion

As the trial court noted, and as CJEF’s counsel acknowledged at oral argument in this court, CJEF “does not argue that [r]espondents did not conduct a [section 60856] study at all, but rather that [they] did not do so in a timely manner.” Thus, the issues in this case are whether section 60856 mandated that respondents complete the required study within any specific time period, and if so, what remedy would be appropriate for their failure to comply with that requirement. As the trial court succinctly summarized it, CJEF’s “position is that the delay in conducting the [section 60856] study constitutes a violation of [r]espondents’ ministerial duty, and that the only way to cure the continuing effect of this violation is to delay the ‘diploma denial’ [i.e., the CAHSEE diploma requirement] until the Legislature has had the opportunity to consider, enact, and implement any alternatives raised in a study by [r]espondents.”

A. Mootness

As a threshold issue, respondents argue that this case is moot, because the section 60856 study has now occurred, and respondents are therefore no longer under a duty to perform it.[6] This case certainly is not moot in any traditional sense. Many of the students in the class of 2006 who were denied their diplomas because they did not pass the CAHSEE still do not have those diplomas.[7] Thus, if we were to find for CJEF on the merits of its substantive claim, and if we determined that granting diplomas to those students would be an appropriate remedy, we could hardly affirm the trial court’s order denying relief on the ground of mootness.

In short, respondents’ mootness argument cannot be separated from their contention that the remedy sought by CJEF -- delay of the CAHSEE diploma requirement -- is inappropriate. In our view, therefore, this issue is better addressed as part of our review of the merits, rather than as a threshold issue of mootness.

B. Standard of Review

CJEF’s sole basis for seeking relief in this proceeding is a petition for writ of mandate under Code of Civil Procedure section 1085. “A traditional writ of mandate brought under Code of Civil Procedure section 1085 lies ‘to compel the performance of an act which the law specifically enjoins, as a duty resulting from an office, trust, or station.’ Under this section, mandate will lie to compel performance of a clear, present, and usually ministerial duty in cases where a petitioner has a clear, present and beneficial right to performance of that duty. [Citations.] Mandamus has long been recognized as the appropriate means by which to challenge a government official’s refusal to implement a duly enacted legislative measure. [Citation.]” (Morris v. Harper (2001) 94 Cal.App.4th 52, 58.)

However, “mandamus 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. [Citation.]

A ministerial act has been described as ‘an act that a public officer is required to perform in a prescribed manner in obedience to the mandate of legal authority and without regard to his [or her] own judgment or opinion concerning such act’s propriety or impropriety, when a given set of facts exists.’ [Citation.] On the other hand, discretion is the power conferred on public functionaries to act officially according to the dictates of their own judgment. [Citations.]

However, . . . [a] refusal to exercise discretion is itself an abuse of discretion. Accordingly, although mandamus is not available to compel the exercise of the discretion in a particular manner or to reach a particular result, it does lie to command the exercise of discretion -- to compel some action upon the subject involved under a proper interpretation of the applicable law. [Citations.] ‘Where a statute requires an officer to do a prescribed act upon a prescribed contingency, his functions are ministerial. Where a statute or ordinance clearly defines the specific duties or course of conduct that a governing body must take, that course of conduct becomes mandatory and eliminates any element of discretion. [Citation.]’ [Citation.]” (Morris v. Harper, supra, 94 Cal.App.4th at pp. 62-63.)

“ ‘ “In reviewing the trial court’s ruling on a writ of mandate [under Code of Civil Procedure section 1085], the appellate court is ordinarily confined to an inquiry as to whether the findings and judgment of the trial court are supported by substantial evidence. [Citation.] However, the appellate court may make its own determination when the case involves resolution of questions of law where the facts are undisputed. [Citation.]” [Citation.]’ [Citations.]” (Morris v. Harper, supra, 94 Cal.App.4th at pp. 58-59.)

In the present case, the underlying historical facts are not in dispute.[8] Rather, the principal issue is whether section 60856 imposed a duty on respondents to complete a study of alternatives to the CAHSEE, and to make an appropriate recommendation to the Legislature, in time for the Legislature to act on that recommendation prior to the implementation of the CAHSEE diploma requirement. This is essentially a question of statutory interpretation, and “[i]t is well settled that the interpretation and application of a statutory scheme presents a pure question of law and is subject to independent review by the courts of appeal. [Citation.] Under this standard, we undertake our own interpretation of the determinative statute and assess any claims raised by the parties completely anew.” (Robertson v. Health Net of California, Inc. (2005) 132 Cal.App.4th 1419, 1425.)

C. Statutory Interpretation of Section 60856

Section 60856 provides that respondents are to begin their study of alternatives after the initial administrations of the CAHSEE, but does not include any language explicitly setting a time limit within which respondents must complete that study. This undeniable fact poses a formidable obstacle to CJEF’s argument that the statute should be construed to include an implied time limit within which the required study of alternatives was to be completed.

First, the primary rule of statutory construction is that “[i]f the words of a statute are reasonably free of ambiguity and uncertainty, we look no further than those words to determine the meaning of that language. [Citation.]” (Lazar v. Hertz Corp. (1999) 69 Cal.App.4th 1494, 1503; see also Halbert’s Lumber, Inc. v. Lucky Stores, Inc. (1992) 6 Cal.App.4th 1233, 1238 [key to statutory construction is applying rules in proper sequence, starting with examination of actual language of statute].) We do not perceive any ambiguity in the language of section 60856. In our view the lack of an explicit time limitation is not an ambiguity, but rather a perfectly clear indication that respondents’ duty to conduct a study of alternatives was (and remains) unconstrained by a legislatively imposed deadline.

CJEF contends, however, that despite the absence of an explicit deadline in the statute itself, examining the statute in the context of the overall statutory scheme and the circumstances that led to its enactment reveals a latent ambiguity which the courts must address. (See generally Whaley v. Sony Computer Entertainment America, Inc. (2004) 121 Cal.App.4th 479, 487 [language appearing unambiguous on its face may have latent ambiguity as shown by extrinsic evidence of a necessity for interpretation or choice between possible meanings].) In this regard, CJEF argues that in ordering respondents to conduct the study of alternatives “[a]fter adoption and the initial administrations of the [CAHSEE]” (§ 60856, italics added), the Legislature intended that while respondents should defer commencing the study until after the CAHSEE had been given once or twice, once that milestone had been passed they were to begin the study at the earliest possible time. In other words, CJEF argues that a latent ambiguity arises from the statute’s use of the word “after,” because it could mean either “at any time after” or “immediately after.”

We are not convinced that this chimeric ambiguity actually exists, but even if we were, we would still be required to examine CJEF’s proposed reading of the statute in the light of other applicable principles of statutory construction. (Whaley v. Sony Computer Entertainment America, Inc., supra, 121 Cal.App.4th at p. 487.) In doing so, we are similarly convinced that no deadline for the study of alternatives was intended by the Legislature when it enacted section 60856.

One of these additional statutory construction tenets is that “ ‘where a statute, with reference to one subject contains a given provision, the omission of such provision from a similar statute concerning a related subject is significant to show that a different legislative intent existed with reference to the different statutes.’ [Citation.]” (In re Jennings (2004) 34 Cal.4th 254, 273 (Jennings).) As respondents point out, the statutory scheme encompassing implementation of the CAHSEE includes four statutes requiring respondents to undertake further study of issues pertaining to the proficiency testing of California high school students. Each of the other three statutes requiring respondents to perform studies in connection with the CAHSEE contains an explicit time limit. (§§ 60852.5 [final report on study of alternatives for disabled students to be completed by May 1, 2005]; 60855, subd. (d) [initial report on multiyear independent evaluation of CAHSEE to be submitted on July 1, 2000, with reports to follow every two years beginning February 1, 2002]; 60857, subd. (a) [final report on study of CAHSEE diploma requirement due by May 1, 2003].) Only the study of alternatives statute, section 60856, does not include a deadline. Thus, to paraphrase the Supreme Court’s reasoning in Jennings, “[b]ecause the wording of [the other CAHSEE study] statutes shows the Legislature, if it wishes, knows how to express its intent that [a study be completed by a given deadline], the absence of such a requirement in section [60856] indicates it intended no such requirement. [Citation.]” (Jennings, supra, 34 Cal.4th at p. 273.)

Recognizing this impediment to its proposed construction of section 60856, CJEF attempts to distinguish the other CAHSEE study statutes by pointing out that they relate to studies to be performed by independent consultants, whereas the study of alternatives was to be undertaken by respondents themselves. We do not agree that this distinction justifies that we read into section 60856 a time deadline that the Legislature apparently deliberately omitted. Indeed, to do so would require us to violate other well-recognized tenets of statutory construction.

Foremost among these is that, as the Supreme Court also noted in Jennings, when construing a statute, courts “must be careful not to add requirements to those already supplied by the Legislature. [Citation.]” (Jennings, supra, 34 Cal.4th at p. 265; see also Code Civ. Proc., § 1858 [“In the construction of a statute . . ., the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted . . . .”].) Thus, “ ‘[w]here the words of a statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history.’ [Citation.]” (Jennings, supra, 34 Cal.4th at p. 265.) In other words, “ ‘[w]e may not, under the guise of construction, rewrite the law or give the words an effect different from the plain and direct import of the terms used.’ [Citations.] More specifically, we may not ‘insert qualifying provisions not included in the statute.’ [Citation.]” (Whaley v. Sony Computer Entertainment America, Inc., supra, 121 Cal.App.4th at p. 486.) Our own division has put it thusly: “We may not speculate that the Legislature meant something other than what it said, nor may we rewrite a statute to make express an intention that did not find itself expressed in the language of that provision. [Citation.]” (Lazar v. Hertz Corporation, supra, 69 Cal.App.4th at p. 1503; see also Comite de Padres de Familia v. Honig (1987) 192 Cal.App.3d 528, 533 [rejecting contention that a statute requiring state agencies to “assist” local school districts in developing programs for affirmative action in employment should be construed to include a duty to “monitor” or “enforce” compliance with such programs].)

In the present case, CJEF acknowledges that there is no legislative history supporting the view that the Legislature intended to impose a time limitation on the study of alternatives, but simply failed to express that intent in the statute’s language. Instead, CJEF argues that such an intent should be inferred because imposing a deadline is consistent with the purpose of the statute, and is necessary to accomplish that purpose. Our Supreme Court recently rejected a similar argument in People v. Guzman (2005) 35 Cal.4th 577 (Guzman).

In Guzman, the defendant committed a nonviolent drug possession offense while on probation following his conviction for violent offenses. The defendant argued that he was entitled to probation under a statute mandating probation and diversion for nonviolent drug crimes. He conceded that the statute’s language did not extend its coverage to persons on probation for violent offenses, but argued that the omission was the product of a drafting error and that to construe the statute to exclude him would be inconsistent with the statute’s purpose and would lead to an absurd result. (Guzman, supra, 35 Cal.4th at pp. 584-586.) The Supreme Court rejected this argument, noting that “ ‘insert[ing]’ additional language into a statute ‘violate[s] the cardinal rule of statutory construction that courts must not add provisions to statutes. [Citations.] . . . .’ [Citation.]” (Id. at p. 587, first three brackets in original.) In the absence of “ ‘firm evidence’ “ that the omission of persons on probation for violent offenses was an oversight inconsistent with the drafters’ intent (id. at p. 588), the court declined to adopt a proposed revision of the statute that was a major expansion of its scope rather than a “ ‘relatively minor rewriting of’ the [statute]. [Citation.]” (Id. at p. 587.)

For the same reasons articulated in Guzman, supra, 35 Cal.4th at pp. 587-588, we are not persuaded that a time limitation on respondents’ duty to study alternatives to the CAHSEE must be inferred where that intention is neither evident on the face of section 60856 nor supported by firm evidence that its omission was a mere oversight on the part of the Legislature.

Nor are we persuaded by CJEF’s argument that declining to impose such a time limitation would lead to an absurd result. It might have been preferable for respondents to complete their study of alternatives in time for the Legislature to act on their recommendations prior to the effective date of the CAHSEE diploma requirement, but not necessarily so. Certainly, respondents’ failure to do so did not deprive the Legislature of the power to enact such alternatives if it chose to do so,[9] or to defer the effective date of the CAHSEE diploma requirement until respondents had complied with their statutory duty. Also, the efficacy of CAHSEE as the preeminent means to evaluate student proficiency in the tested materials is evolutional. The value of that form of testing, and the prospect that other equally reliable evaluative protocols can be developed, will no doubt be better tested in the crucible of actual experience with the CAHSEE over time. Thus, evaluation methodologies rejected today may yet, in time, prove to be efficacious. Thus, an argument can easily be made that imposing a deadline would have hampered the educational community’s ability eventually to develop viable alternative means to test student proficiency. For this reason, contrary to CJEF’s contention, imposition of a time limit on respondents’ duty to comply with section 60856 is not necessary “to avoid an absurd result.” (Halbert’s Lumber, Inc. v. Lucky Stores, Inc., supra, 6 Cal.App.4th at p. 1239.)[10]

For all of the foregoing reasons, we concur with the trial court’s conclusion that section 60856 cannot properly be interpreted as requiring respondents to complete a study of alternatives within any particular time period after the initial administrations of the CAHSEE. Thus, because the statute did not impose a ministerial duty on respondents to complete the section 60856 study within a particular time, mandamus relief is not available based on their delay in fulfilling that requirement.[11]

IV. Disposition

The judgment is affirmed.

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Ruvolo, P. J.

We concur:

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Reardon, J.

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Sepulveda, J.

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[1] CJEF is a nonprofit organization that describes itself as advocating on behalf of youth, immigrants, low income people, and communities of color.

[2] All further statutory references are to the Education Code unless otherwise noted.

[3] In 2001, the Legislature enacted a statute requiring respondents to contract for an independent study of the CAHSEE, and specified that the final report on that study was to be delivered to state officials on or before May 1, 2003. (§ 60857, subd. (a).)

[4] In the Valenzuela litigation, the trial court ultimately issued a preliminary injunction which (had it not been stayed by the California Supreme Court) would have precluded the implementation of the CAHSEE diploma requirement for the class of 2006, on equal protection grounds. In O’Connell v. Superior Court (2006) 141 Cal.App.4th 1452, we issued a writ of mandate directing the trial court to vacate that injunction. On August 11, 2006, respondents in this appeal filed a request for judicial notice of various documents from the record of the Valenzuela litigation. CJEF did not oppose the request, and we hereby grant it to the extent that the referenced documents are relevant to the issues discussed in this opinion. (See Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063 [only relevant materials may be judicially noticed].)

[5] CJEF originally sought writ review of Judge Freedman’s order in the California Supreme Court, which transferred the proceeding to us on May 31, 2006. (Californians for Justice Education Fund v. Superior Court, No. S143612.) On June 21, 2006, we denied CJEF’s writ petition on the ground that CJEF had an adequate remedy by way of the instant appeal, and simultaneously set an expedited briefing schedule herein. Briefing was complete on August 25, 2006, and we heard oral argument on September 12, 2006.

[6] Under the same heading in their brief, respondents also contend that CJEF’s position that the statute required the study to be done no later than the summer of 2002 is undercut by the fact that CJEF did not seek writ relief until the spring of 2006. Respondents cite no authority in support of this argument, and fail to explain how CJEF’s failure to seek relief more promptly--an issue most closely akin to a laches defense--supports respondents’ argument that the case is moot. In any event, because we affirm the trial court’s order on other grounds, we need not reach this issue. We therefore deny, on the ground of relevance, CJEF’s requests for judicial notice or augmentation of the record, insofar as they pertain to documents that CJEF contends bear on this issue. (See Mangini v. R.J. Reynolds Tobacco Co., supra, 7 Cal.4th at p. 1063.)

[7] On July 31, 2006, we granted CJEF’s unopposed request that we take judicial notice of a press release issued by respondent SPI, which stated that as of the results of the March 2006 administration of the CAHSEE, some 41,758 students in the class of 2006 had not yet passed both portions of the examination.

[8] Although the underlying facts are not in dispute, respondents do contend on appeal that the trial court abused its discretion in concluding from those facts that respondents did not conduct a section 60856 study prior to December 2005. Given the evidence in the record, we accept, for purposes of this appeal, the trial court’s finding that respondents’ receipt of reports mentioning potential CAHSEE alternatives, and such incidental discussion of those reports as may have occurred at meetings of the Board prior to December 2005, were not sufficient to constitute the “study” contemplated by section 60856.

[9] In fact, as already noted, the Legislature did precisely that in 2005--over respondents’ opposition--only to be met by the gubernatorial veto of AB 1531.

[10] CJEF also argues that when respondent SPI rejected the proposed alternative of a state performance assessment in January 2006 because it could not be implemented in time to apply to the class of 2006, this constituted an implied concession that the study of alternatives should have been completed earlier. For the reasons expressed in the text, we disagree that acknowledging it would have been preferable for the study to be completed earlier implies a concession that it is “absurd” to construe section 60856 as not imposing any deadline.

[11] This does not mean that respondents could have deferred the section 60856 study indefinitely. (See generally Morris v. Harper, supra, 94 Cal.App.4th at pp. 60-61 [mandamus relief was justified where administrative official had engaged in unjustified, unreasonable delay in taking action required by statute].) However, CJEF does not contest the trial court’s finding that respondents did in fact conduct the required study between December 2005 and March 2006. Thus, mandate is no longer necessary to compel them to do so. (See id. at pp. 59-60.)

In addition, because we conclude that the trial court correctly denied CJEF’s petition and motion for a peremptory writ, it is not necessary for us to consider whether the relief sought by CJEF was an appropriate remedy. For the same reason, we deny as irrelevant CJEF’s requests for judicial notice or augmentation of the record insofar as they pertain to documents that CJEF contends bear on the appropriateness of respondents’ rejection of performance assessments as an alternative to the CAHSEE, and on the harm allegedly resulting from the denial of high school diplomas to students who did not pass the CAHSEE. (See Mangini v. R.J. Reynolds Tobacco Co., supra, 7 Cal.4th at p. 1063.)