Judge: Mary H. Strobel, Case: 21STCP03325, Date: 2023-05-02 Tentative Ruling

Case Number: 21STCP03325    Hearing Date: May 2, 2023    Dept: 82

             Respondents California Department of Education (“CDE”) and Superintendent Tony Thurmond (collectively, “Respondents”) move to strike a request in the petition filed by Petitioner Student J.L., minor by and through his Guardian Ad Litem R.W.; Student F.V., by and through his Guardian Ad Litem G.V.; and Black Parallel School Board (“Petitioners”) for a writ of mandate directing Respondents to “develop[] a monitoring system for regularly reviewing discipline data for accuracy and for racial disproportionality.”  (See First Amended Petition (“FAP”) ¶ 106 and p. 37, ¶ 3.) 

Background

“This case seeks to require [Respondents] to monitor all California public school districts for racially discriminatory discipline policies and practices and to redress those practices when they are found.”  (FAP ¶ 1.) 

“The California Constitution requires the State to ensure that all students—regardless of race or ethnicity—have equal access to its public education system. Cal. Const., art. IX, § 5, Butt v. California (1992) 4 Cal. 4th 668, 680. School districts must offer all students an education program providing the opportunity for them to stay in school and succeed, irrespective of their race or ethnicity.”  (Id. ¶ 3.)

            As relevant to this motion to strike, Petitioners seek the following relief: “Plaintiffs seek a judicial determination of their rights as well as a writ of mandate pursuant to Code of Civil Procedure § 1085 directing DEFENDANTS to comply with their legal duties and obligations, including but not limited to: developing a monitoring system for regularly reviewing discipline data for accuracy and for racial disproportionality; identifying school districts that disproportionately discipline Black and Latinx students through discipline related classroom assignment, formal or informal suspension, expulsion, or voluntary or involuntary discipline related transfers for increased monitoring and intervention; taking all necessary steps to ensure that state laws governing discipline of students are not carried out in a discriminatory manner; and ensuring that school districts comply with their obligations under state and federal law to provide equal educational opportunities to all students.”  (Id. ¶ 106 [bold italics added].) 

            In the motion to strike, Respondents challenge only the bolded and italicized language in paragraph 106. 

Relevant Procedural History

            On October 16, 2021, Petitioners filed the original complaint and petition for writ of mandate.  The second cause of action is for writ of mandate pursuant to CCP section 1085.

            On September 1, 2022, at a trial setting conference, the court stayed the first, third, and fourth causes of action until the writ cause of action is resolved. 

            On January 9, 2023, pursuant to a stipulation, Petitioners filed the operative FAP. 

            On February 9, 2023, Respondents filed their motion to strike and meet and confer declaration.  The court has received Petitioners’ opposition and Respondents’ reply.

Legal Standard – Motion to Strike

Upon motion, the court may “strike out any irrelevant, false, or improper matter inserted in any pleading” or “[s]trike out all or any part of any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.  (CCP § 436.)  As with a demurrer, “[t]he grounds for a motion to strike shall appear on the face of the challenged pleading or from any matter of which the court is required to take judicial notice.”  (CCP § 437.)  Given that limitation, a motion to strike also is “not the appropriate procedure for determining the truth of disputed facts.”  (Fremont Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 113-114.) 

Courts take a “cautious” approach to motions to strike.  “We have no intention of creating a procedural ‘line item veto’ for the civil defendant.”  (PH II, Inc. v. Superior Court (1995) 33 Cal. App. 4th 1680, 1683.)  “Judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”  (Clauson v. Sup. Ct. (1998) 67 Cal.App.4th 1253, 1255.)

Analysis

Respondents move to strike the request for a writ of mandate directing Respondents to “develop[] a monitoring system for regularly reviewing discipline data for accuracy and for racial disproportionality.”  (See FAP ¶ 106 and p. 37, ¶ 3.)  Respondents contend that this request is “improper” because “CDE’s duties are highly discretionary”; an abuse of discretion standard will apply at trial; and “this Court lacks legal authority to issue such a writ directing CDE how to exercise its discretion.”  (Mot. 5-8.)

“Generally, mandamus is available to compel a public agency's performance or to correct an agency's abuse of discretion when the action being compelled or corrected is ministerial.”  (AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health (2011) 197 Cal.App.4th 693, 700.)  “A ministerial act is 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 own judgment or opinion concerning such act's propriety or impropriety, when a given state of facts exists.”  (Kavanaugh v. West Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916.)   

“However, [mandamus] will lie to correct abuses of discretion. In determining whether a public agency has abused its discretion, the court may not substitute its judgment for that of the agency, and if reasonable minds may disagree as to the wisdom of the agency's action, its determination must be upheld. A court must ask whether the public agency's action was arbitrary, capricious, or entirely lacking in evidentiary support, or whether the agency failed to follow the procedure and give the notices the law requires.”  (County of Los Angeles v. City of Los Angeles (2013) 214 Cal.App.4th 643, 654.) 

“‘While, of course, it is the general rule that mandamus will not lie to control the discretion of a court or officer, meaning by that that it will not lie to force the exercise of discretion in a particular manner ... [it] will lie to correct abuses of discretion, and will lie to force a particular action by the inferior tribunal or officer, when the law clearly establishes the petitioner's right to such action.’”  (Flores v. Dept. of Corrections & Rehabilitation (2014) 224 Cal.App.4th 199, 208.)  “Mandamus may issue … to compel an official both to exercise his discretion (if he is required by law to do so) and to exercise it under a proper interpretation of the applicable law.”  (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 442.)

Petitioners Allege a Mandatory Duty and an Abuse of Discretion

            “California has enshrined the right to education within its own Constitution.”  (Collins v. Thurmond (2019) 41 Cal.App.5th 879, 896; see Cal. Const. Art. IX, §§ 1, 5.)  “California's state-level constitutional and statutory duty to oversee the education process is well settled.”  (Collins, supra at 917.)  “The State itself bears the ultimate authority and responsibility to ensure that its district-based system of common schools provides basic equality of educational opportunity.”  (Collins, supra at 897-898, citing Butt v. State of California (1992) 4 Cal.4th 668, 685.)  Further, “federal courts impose a ministerial duty upon state-level agencies to monitor their school systems for compliance with federal equal protection requirements … [including] 42 United States Code section 2000d, covering the right to be free from discrimination generally.”  (Collins, supra at 917.) 

Thus, as Respondents acknowledge, CDE has a mandatory duty to monitor local educational agencies (“LEAs”) for compliance with nondiscrimination laws.  (Mot. 6:14-18.)  Petitioners have pleaded this duty in the petition.  (See FAP ¶¶ 91-93.)

“Recognizing such a duty exists, it is apparent that how one engages in monitoring for compliance with federal law … is discretionary in nature…. Accordingly, any claim arising from the way in which the state implements such a duty must demonstrate an abuse of discretion.”  (Collins, supra at 918.)  Further, CDE’s compliance with the state constitutional duty to oversee the education process and ensure “basic equality of educational opportunity” will necessarily involve discretionary decisions of the CDE. 

The FAP alleges, at length, how Respondents have abused their discretion and failed to perform the mandatory duties outlined above.  In particular, as relevant to this motion, the FAP alleges that data collected by CDE shows racially discriminatory practices in California public school districts, and that CDE has failed to take action to address such discrimination.  Examples from the detailed pleading include the following:

“Black and Latinx students in California schools are not afforded the same opportunities or treated the same way as their white peers. While Black students accounted for only 5.4% of the state’s public-school enrollment in 2018-2019, they represented 16.3% of students suspended in the State and 12.9% of those expelled. In 2018-2019, Black students accounted for 59,493 of California’s suspensions and 673 of the state’s expulsions. Assuming a 180-day school year, 331 suspensions and four expulsions of Black students were therefore occurring each day. Black students are significantly overrepresented in suspension and expulsion numbers reported to CDE each year and to a degree not experienced by any other student group.” (FAP ¶ 24.)

            “During the past decade, numerous districts statewide have reported discipline data to CDE showing racial disparities. On information and belief, CDE has failed to meaningfully and affirmatively hold any district to account for discipline discrimination or provide redress to affected students. Sacramento City Unified School District gave Black students 41.5% of suspensions in 2018-2019, despite Black students comprising only 15.5% of the student population….”  (Id. ¶ 27.)

“Black and Latinx students in the Antelope Valley Union High School District have for years been subject to discipline and school assignment policies and practices that suspend, expel, or assign them to alternative schools at highly disproportionate rates. In the 2018-2019 school year, the Antelope Valley Union High School District reported 2,972 suspensions. This is 600 more suspensions than were reported for the same year by the Los Angeles Unified School District, a district with more than 21 times the enrollment of Antelope Valley Union, and the largest district in California.  [¶] At 8.3%, the Antelope Valley Union High School District’s suspension rate in 2018- 2019 was more than 20 times the rate of the Los Angeles Unified School District (0.4%), nearly four times the rate of the rest of Los Angeles County (2.1%) and nearly 2.5 times the rate of the state (3.6%)….”  (Id. ¶¶ 31-32.)

Other discriminatory practices, as reflected in data, are alleged at paragraphs 33-42 of the FAP.

The FAP then alleges that Respondents “are on notice of these racially discriminatory disciplinary practices because every school district in California submits its data on voluntary and involuntary transfers to CDE. On information and belief, [Respondents] do not review or analyze this data to determine whether districts are complying with the law or should be subjected to increased monitoring.”  (Id. ¶ 43.)  “Plaintiffs are informed and believe that data reported to [Respondents] shows that discipline-related transfers result in disproportionate exclusions of students of color and students of color with disabilities from comprehensive school campuses. Federal government studies have confirmed such findings.”  (Id. ¶ 45.)

“[Respondents] have been on notice of the stark racial disparities in discipline statewide at districts like the Antelope Valley Union High School District due to the state data reporting responsibilities required of all California districts. Plaintiffs are informed and believe that [Respondents] have not increased monitoring of discipline data, escalated reporting requirements, or taken action to require districts that have reported racial disparities in discipline data to explain or address the disproportionality.”  (Id. ¶ 49.)

As implicitly acknowledged in the motion, Petitioners have pleaded a cause of action for writ of mandate. 

The Challenged Writ Relief Is Not “Improper Matter” for a Pleading

            The motion to strike contends that a single request for relief in the petition is “improper” and should be stricken.  Respondents contend that this request for relief is “improper” because “CDE’s duties are highly discretionary”; an abuse of discretion standard will apply at trial; and “this Court lacks legal authority to issue such a writ directing CDE how to exercise its discretion.”  (Mot. 5-8.)

In addition to the allegations summarized above, the FAP also discusses statutory rights and duties found in Education Code sections 220, 11135-11137, 48432.3, 234.1 and numerous federal statutes and regulations, including 20 USC sections 6303 and 6312.  (FAP ¶¶ 93-103.)  Petitioners then allege: “[Respondents] have failed to fulfill their duties derived from these statutes and regulations. They have not implemented an adequate or complete monitoring system, despite federal funds being designated for such use. See 20 U.S.C. § 6303. They have also failed to take affirmative action to overcome the effects of the discrimination found in the LEAs’ disciplinary policies or practices, as mandated by 34 C.F.R. § 100.2(b)(6), or to otherwise address the disciplinary policies or practices’ negative impact on the participation of Black and Latinx students in educational programs.”  (Id. ¶ 102.)

Respondents did not address the cited statutes and regulations in the motion to strike, only in Reply.  The motion to strike was based on a generalized argument that Respondents’ “duty to monitor LEAs’ compliance with nondiscrimination laws is highly discretionary.”  (Mot. 4-8.) 

The court does not consider arguments first raised in reply concerning the scope of CDE’s statutory duties.  (Reply 2-5.) “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.”  (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)  For a motion to strike, in which Respondents have the burden, Respondents do not show good cause to raise new arguments in reply. 

While the requested relief at issue could interfere with Respondents’ exercise of discretion, the court cannot conclusively make that determination at the pleading stage.   Based on the allegations in the FAP, and the arguments made in the motion, there is a disputed issue concerning the scope of CDE’s duties to collect, monitor, and review discipline data under state and federal law.  The challenged request for relief does not necessarily mandate Respondents to perform their duties in a particular fashion.  Further, the requested relief at issue does not direct CDE to take any specific action based on its review of data. Finally, as summarized above, the FAP alleges at length that CDE unreasonably and arbitrarily fails to analyze discipline data for racial disproportionality or take action based on such data.  The scope of writ relief appropriate to remedy those allegations, if proven, cannot be determined at the pleading stage.  Respondents are not precluded from raising all arguments about the appropriate scope of any writ at trial. 

Conclusion

The motion to strike is DENIED.