Judge Stephen I. Goorvitch, Case Number: 24STCP01023, Date: 2024-12-13 Tentative Ruling

Judge: Stephen I. Goorvitch, Case: 24STCP01023, Date: 2024-12-13 Tentative Ruling

The California Charter Schools Association (“Petitioner”) filed this verified petition for writ of mandate and complaint for declaratory relief against the Los Angeles Unified School District (the “District”) and its Board of Education (collectively, “Respondents”). Proposition 39 imposes a mandatory duty on each school district to make facilities available to charter schools operating in the district. The District enacted a policy that the District will avoid Proposition 39 co-locations that are located on certain sites, compromise a District school’s capacity to serve neighborhood children, negatively impact student safety, and actively deter students from attending District schools provided that doing so is “operationally feasible and permitted by law,” i.e., permitted under Proposition 39. Petitioner seeks a writ requiring the District to rescind this policy, among other things, arguing that the policy violates Proposition 39. Now, Petitioner moves to “augment” the administrative record. Respondents oppose the motion. At heart, this is largely a motion to “correct” the administrative record because Respondents omit materials concerning the policy that were before the Board. The motion is granted in part and denied in part.

“In 2000, California voters enacted Proposition 39, which requires school districts to share their facilities with charter schools so that charter school students have access to facilities ‘reasonably equivalent’ to those available to other public school students.” (California Charter Schools Assn. v. Los Angeles Unified School District (2015) 60 Cal.4th 1221, 1226.) Prior to Proposition 39, “charter schools had access only to public school facilities that districts weren't using.” (Id. at 1228.) Proposition 39 “changed the way school districts must share facilities with charter schools” through amendments to Education Code section 47614. (Ibid.)

(a) The intent of the people in amending Section 47614 is that public school facilities should be shared fairly among all public school pupils, including those in charter schools.

(b) Each school district shall make available, to each charter school operating in the school district, facilities sufficient for the charter school to accommodate all of the charter school’s in-district students in conditions reasonably equivalent to those in which the students would be accommodated if they were attending other public schools of the district. Facilities provided shall be contiguous, furnished, and equipped, and shall remain the property of the school district. The school district shall make reasonable efforts to provide the charter school with facilities near to where the charter school wishes to locate, and shall not move the charter school unnecessarily.

The State Board of Education subsequently issued regulations governing the implementation of section 47614. (5 Cal. Code of Regs., §§ 11969.1-11969.9.) The regulations establish an annual process by which a charter school may submit a “written facilities request to the school district.” (§ 11969.9(b).) The California Supreme Court has summarized these procedures as follows:

To be eligible for the allocation of classrooms and other space in public schools, a charter school must submit a request for facilities documenting its projected ADA [average daily attendance] and other pertinent information by November 1 of the year before the school year for which the facilities are requested. (§ 11969.9, subds. (b), (c).) By the following February 1, the school district receiving the request must make a preliminary space allocation proposal that “[at] a minimum” “shall include (1) the projections of in-district classroom ADA on which the proposal is based, (2) the specific location or locations of the space, (3) all conditions pertaining to the space, including a draft of any proposed agreement pertaining to the charter school’s use of the space, and (4) the projected pro rata share amount and a description of the methodology used to determine that amount. The district shall also provide the charter school a list and description of the comparison group schools used in developing its preliminary proposal, and a description of the differences between the preliminary proposal and the charter school’s facilities request....” (Id., subd. (f).) After the charter school has had an opportunity to respond to the proposal, the district must make a final space offer to the charter school by April 1, and the charter school must notify the District whether it accepts the offer within 30 days or by May 1, whichever is later. (Id., subds. (g)-(i).)

(California Charter Schools Assn., supra, 60 Cal.4th at 1231.) A charter school dissatisfied with the school district’s response to a request for facilities under Proposition 39 may file a petition for writ of ordinary mandate challenging the district’s decision. (See generally Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1002-03.)

On September 27, 2023, District’s Board of Education (the “Board”) passed a resolution titled “Creating a Charter Schools Co-Location Policy to Mitigate Impacts Caused by Proposition 39” (“Resolution”). As amended, the Resolution states that “[t]he co-location of charter schools pursuant to Proposition 39, is often detrimental to District schools and the students they educate, and has a tangible negative impact on the District’s ability to maintain and grow important priorities including, but not limited to, Black Student Achievement Program (BSAP), Priority Schools, and Community Schools.” Accordingly, the Board resolved that the Superintendent report back with a Proposition 39 Charter Schools Co-Location Policy, to be adopted by the Board. The Resolution states:

The Policy, as operationally feasible and permitted by law, shall enumerate clear guidelines that avoid Proposition 39 co-locations that: (1) are on school sites with the District’s 100 Priority Schools, BSAP schools, and Community Schools, (2) compromise District schools’ capacity to serve neighborhood children, and/or (3) result in grade span arrangements that negatively impact student safety and build charter school pipelines that actively deter students from attending District schools, all so that the District can focus on supporting its most fragile students and schools, key programs, and student safety.

The District’s staff then developed the “Proposition 39 Charter Schools Co-Location Policy” (the “Policy”) as directed by the Resolution. (Id. ¶ 13.) Petitioner opposed the Policy and, in a letter to the Board, argued that it would violate Proposition 39 and have significant negative impacts on charter schools. (Id. ¶ 14; see also Dell’Aquila Decl. Exh. 2-4.)

The Policy was considered at a Board meeting held on February 13, 2024. On that date, Board President Jackie Goldberg stated that “under Prop. 39 there are so many legal rules that are required” and “our District staff said that we had to continuously add in the words, as ‘operationally feasible and permitted by the law’ [which] means [] that Prop. 39 overrules everything.” (FAP ¶ 76.)

On March 19, 2024, by a 4-to-3 vote, the Board approved the Policy. (Id. ¶ 17, Exh. B.) Section 2 states:

As operationally feasible and permitted by law, as so that the District can focus on supporting its most fragile students and schools, key programs, mandates, and student safety, the District avoids Proposition 39 co-locations that (pursuant to the resolution):

· Are on school sites with the District’s Priority Schools, [Black Student Achievement Plan] schools, and/or Community Schools;

· Compromise a District school’s capacity to serve neighborhood children, and/or

· Result in grade span arrangements that negatively impact student safety and build charter school pipelines that actively deter students from attending District schools.

Each of the facts above are determined based on the specific facts and circumstances of each particular situation. Additional performance indicators may be considered as part of the District’s analysis.

(Ibid., footnote omitted.) This policy applies to new Proposition 39 co-locations. (Ibid.) The policy also applies to existing Proposition 39 co-locations if (1) a charter school requests “additional or different … school sites,” or (2) “existing conditions change for reasons including, but not limited to, insufficient space, addition of grade levels, and other material revisions to a charter school’s operative charter.” (Ibid.)

On April 17, 2024, Petitioner reqeusted that the District prepare the administrative record. (See Stromberg Decl. ¶ 2, Exh. A.) Petitioner requested that the record include: (i) the final adopted Policy along with prior drafts; (ii) the final adopted Resolution along with prior drafts; (iii) agendas, minutes, stamped orders of business, and transcripts for each Board meeting, Committee of the Whole (“COTW”) meeting, and Charter School Committee meeting at which the Policy and/or Resolution were considered; (iv) LAUSD staff reports, presentation materials, and drafts thereof prepared for those meetings; (v) correspondence from members of the public to LAUSD related to the Policy and/or Resolution; (vi) internal LAUSD staff and Board communications related to the Policy and/or Resolution; and (vii) all documents relied upon by LAUSD staff in preparing staff reports and presentation materials. (See ibid.) Petitioner acknowledged that it would be responsible for the cost of preparing the record and offered to retain a court reporter to prepare the meeting transcripts described in the letter. (See ibid.)

On June 5, 2024, Respondents’ counsel indicated that the District was “amenable” to Petitioner’s proposal to obtain a court report to prepare certified transcripts of the Board and Committee meetings. (See id. Exh. D at pp. 31-32.) Then, on October 25, 2024, Respondents’ counsel provided a proposed administrative record index consisting of the following categories: (i) orders of business for the Board’s meetings of February 13 and March 19, 2024, including stamped versions; (2) meeting minutes for the Board meeting of March 19, 2024; (3) Tab 11 to the Board’s meeting of February 13, 2024, which includes a Board report and the then-proposed Policy; and (4) Recorded videos (in both English and Spanish) of the Board meetings of February 13 and March 19, 2024. (See Stromberg Decl., Exh. C.) The District’s proposed record omitted the transcripts the District previously agreed to allow Petitioner to prepare. (See ibid.)

This case involves a challenge to a quasi-legislative act, which is one that “involve[s] the adoption of rules of general application on the basis of broad public policy.” (California Manufacturers & Technology Assn. v. Office of Environmental Health Hazard Assessment (2023) 89 Cal.App.5th 756, 776.)

A court cannot inquire into the wisdom of a legislative act or review the merits of a local government’s policy decisions. Judicial review of a legislative act under Code of Civil Procedure section 1085 is limited to determining whether the public agency’s action was arbitrary, capricious, entirely without evidentiary support, or procedurally unfair.

(Federation of Hillside & Canyon Assns. V. City of Los Angeles (2004) 126 Cal.App.4th 1180, 1195 [internal citations omitted].) Further, the court “must ensure that the agency adequately considered all relevant factors, and demonstrated a rational connection between those factors, the choice made, and the purposes of the enabling legislation.” (Coachella Valley Unified School Dist. v. State of California (2009) 176 Cal.App.4th 93, 121.)

In traditional mandamus actions challenging quasi-legislative decisions, evidence outside the record—“extra-record evidence”—generally is not admissible. (See Carrancho v. California Air Resources Board (2003) 111 Cal.App.4th 1255, 1269.) There are three exceptions to this rule.

First, this restriction does not apply to ministerial or informal administrative actions. As stated by our Supreme Court, “we will continue to allow admission of extra-record evidence in traditional mandamus actions challenging ministerial or informal administrative actions if the facts are in dispute.” (Western States Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 576.) This is because “there is often little or no administrative record in such cases.” (Id. at 575.)

Second, there is an exception for extra-record evidence in traditional mandamus proceedings involving quasi-legislative decisions “in which (1) the evidence in question existed before the agency made its decision, and (2) it was not possible in the exercise of reasonable diligence to present this evidence to the agency before the decision was made so that it could be considered and included in the administrative record.” (Id. at 578)

Third, extra-record evidence may be admissible and “relevant to (1) issues other than the validity of the agency’s quasi-legislative decision, such as the petitioner’s standing and capacity to sue, (2) affirmative defenses such as laches, estoppel and res judicata, (3) the accuracy of the administrative record, (4) procedural unfairness, and (5) agency misconduct.” (Id. at 579, fn. 5.)

Respondents request judicial notice of the District’s Rules of the Board of Education, Rule 141, entitled “Appointment of Committees.” Petitioner does not object. The court grants the request under Evidence Code section 452(b).

Although styled a motion “to augment,” effectively, Petitioner argues that the record prepared by Respondent should be “corrected” to include certain materials. In a mandamus proceeding in which a formal administrative record is prepared, the petitioner may object that the record prepared by the agency omits documents that are part of the record. (Mejia v. City of Los Angeles (2005) 130 Cal.App.4th 322, 336, fn. 5.) Petitioner contends that the administrative record prepared by Respondents is “woefully inadequate” and should include “all of the materials that were before the Board regarding the Policy, including materials related to the Board’s adoption of the [September 27, 2023] Resolution, the Policy’s quasi-legislative genesis.” (Motion to Augment (“Mot.”) 5.) The court agrees as a general matter.

The parties disagree about the scope of the administrative record in a traditional mandate proceeding challenging a quasi-legislative act, such as the Board’s adoption of the Policy. (See Mot. 9-10 and Oppo. 7-9.) Since the Policy was adopted after a formal meeting of the Board, the “informal action” exception from Western States does not apply. Accordingly, the administrative record should include public comments, staff reports, and similar materials that were presented to the Board in connection with the public meetings at which the Board decided to adopt the Policy. (See Carrancho, supra, 111 Cal.App.4th at 1270.) In addition, the administrative record should include additional materials, including legislative history.

Respondents contend that “other than the Policy itself and documents relating to and evidencing its adoption by the Board, no documents are relevant to this action.” (Oppo. 7.) Respondents argue for a narrow version of the record on the grounds that “[t]he issue that [Petitioner] raises in the FAP is whether the Policy is a facial violation of Proposition 39.” (Ibid.) The court disagrees that the record is so narrow. In this writ action, the court will decide whether the Board’s adoption of the Policy was “arbitrary, capricious, entirely lacking in evidentiary support, or unlawfully and procedurally unfair,” and whether the Board “considered all relevant factors, and [] demonstrated a rational connection between those factors, the choice made, and the purposes of” Proposition 39. (Western States, supra, 9 Cal.4th at 574; Coachella Valley Unif. School Dist. v. State (2009) 176 Cal.App.4th 93, 121.) Therefore, the court must consider the evidence supporting (or contradicting) the decision. Further, to the extent there are any ambiguities in the Policy, the court may consider its legislative history. (Los Angeles Unified School Dist. v. Superior Ct. (2023) 14 Cal.5th 758, 768.)

In addition, because the Policy is akin to a regulation, the Administrative Procedures Act, while not controlling, provides guidance on the types of documents that may be included in the record. In actions challenging regulations under the Administrative Procedure Act, evidence is limited to the “rulemaking file” before the agency. (See Gov. Code § 11350(d).) The rulemaking includes, but is not limited to, “[a]ll data and other factual information, any studies or reports, and written comments submitted to the agency in connection with the adoption … of the regulation.” (Id. § 11347.3(b)(6).) In addition, the record may include “[a] transcript, recording, or minutes of any public hearing connected with the adoption, amendment, or repeal of the regulation.” (Id. § 11347.3(b)(8).)

The court applies these principles to the documents that Petitioner seeks to add to the record. Petitioner has filed a proposed index of the documents and provided copies on a thumb drive. (See Stromberg Decl. ¶ 8, Exh. 5.) The proposed index includes various categories of documents grouped in Sections A through G and numbered 1 through 100.

The following documents are included in the administrative record: 2, 3, 18, 19, 20, and 37. With respect to at least one of these documents, Petitioner raises concerns whether the administrative record contains the entirety of the document and all related information. These documents clearly should be included in the administrative record in their entirety. Accordingly, the motion is granted in this respect.

Document Number 1 is a “Draft Proposition 39 Co-Location Policy” considered at meeting of January 30, 2024. This draft is part of the legislative history of the Policy and should be included in the record. (See First Amended Petition (“FAP”) ¶ 71.)

Document Numbers 4 through 8 are draft and final Board resolutions titled “Creating a Charter Schools Co-Location Policy to Mitigate Impacts Caused by Proposition 39” (the “Resolution”). As amended, the Resolution states:

The co-location of charter schools pursuant to Proposition 39, is often detrimental to District schools and the students they educate, and has a tangible negative impact on the District’s ability to maintain and grow important priorities including, but not limited to, Black Student Achievement Program (BSAP), Priority Schools, and Community Schools.

(Stromberg Decl. Exh. 8 at ¶ 26.) Accordingly, the Board resolved that the Superintendent report back with a Proposition 39 Charter Schools Co-Location Policy, to be adopted by the Board. (FAP ¶ 12, Exh. A.) The Policy that was ultimately adopted by the Board restates the Resolution’s findings and acknowledges that the Resolution “direct[ed] the development of [the] Policy.” The Policy cites the Resolution when defining the circumstances under which LAUSD must “avoid” colocations at certain LAUSD campuses. (See Proposed Record, Document No. 3 at 1, 3.)

Clearly, the Resolution and the drafts thereof are important parts of the legislative history of the Policy. Respondents’ arguments for excluding the Resolution are not persuasive. (Oppo. 8.) While the plain language of the Policy is contested, the legislative history of the Policy is relevant for context and to the extent there are any ambiguities in the Policy. Accordingly, the motion is granted in this respect.

Document Numbers 8 through 17 are agendas, minutes, and stamped orders of business for meetings of the Board, Charter School Committee, and Committee at which the Resolution or Policy, or drafts thereof, were considered. These documents are part of the legislative history of the Policy and should be included in the record.

Documents Numbers 21 through 30 are transcripts of meetings of the Board, Charter School Committee, and “Committee of the Whole.” Petitioner represents that the Resolution or Policy, or drafts thereof, were considered by the Board or its Committees at these meetings. (See Mot. 11-12; Stromberg Decl. Exh. F.) Respondents do not argue or show that Petitioner is incorrect. Indeed, Respondents consented to Petitioner’s preparation of the Board meetings at which the Resolution or Policy was discussed, beginning in June 2023. (Stromberg Decl. Exh. D at pp. 31-32.) Respondents state that “upon review of the transcripts, the District identified errors that render them unreliable.” (Oppo. 9:2-3.) However, in their opposition brief, Respondents have not identified the alleged errors in the transcript. Moreover, Respondents could have prepared the transcripts themselves, but they elected not to do so. Accordingly, the motion is granted in this respect.[1]

Petitioner seeks to include Document Numbers 31 through 36 in the administrative record. The documents are as follows:

Numbers 31 and 34 through 36 – District staff presentation materials for meetings of the “Committee of the Whole” or the Charter School Committee at which the Resolution or Policy were considered.

Number 32 – An Operational, Policy & Student Impact Statement dated September 13, 2023, prepared by the District’s staff for the Board prior to its consideration of the Resolution at the “Committee of the Whole” meeting held on September 19, 2023.

Number 33 – An attendance list for item Number 6 of the Board’s September 26, 2023, regular meeting, at which the Resolution or Policy were considered.

These documents reflect information the Board may have considered, as well as the legislative history of the policy. Respondents argue that Petitioner has not shown that the “staff reports and staff presentation materials … were considered by the entire Board when adopting the Policy.” (Oppo. 8.) The court is skeptical of this argument given the nature of the materials. For example, Number 32 is addressed to “Members, Board of Education.” (Stromberg Decl. Exh. 32.) Other exhibits appear to be presentations to the “Charter Committee.” (Id. Exhs. 31, 35, 36.) Nevertheless, Respondents may develop their arguments in their briefing on the writ petition.

Respondents also argue that the staff reports and presentation materials “may also reflect individual Board members’ thought processes and motives, and are therefore inappropriate for inclusion” in the record. (Oppo. 12.) The mental processes principle “precludes any judicially authorized inquiry into the subjective motives or mental processes of legislators.” (County of Los Angeles v. Superior Court (1975) 13 Cal. 3d 721, 726.)

[T]he doctrine which precludes judicial delving into the subjective mental processes of individual legislators is a corollary of the related legal principle which establishes that the validity of a legislative act does not depend on the subjective motivation of its draftsmen but rests instead on the objective effect of the legislative terms.

(Id. at 727.) These principles may be relevant to the court’s ruling on the writ petition and determination of the validity of the Policy. However, these principles do not support Respondents’ position that staff reports and presentation materials should be excluded from the administrative record. To the contrary, to the extent the Policy’s language “permits more than one reasonable interpretation,” this legislative history may be considered by the court. (Los Angeles Unified School Dist., supra, 14 Cal.5th at 768.) Accordingly, the motion is granted with respect to Numbers 31 through 36.

Documents Numbers 38 through 40 are certain tables listing BSAP, priority, and community schools that Petitioner obtained from a public records request. Petitioner has not submitted evidence that these tables were considered by the relevant Committees or the Board in connection with the adoptions of the Resolution or the Policy. However, they could be relevant to Petitioner’s argument that “as applied” this policy violates Proposition 39 by foreclosing co-locations to charter schools. Therefore, the court grants the motion with respect to these documents.

Document Numbers 41 through 49 and 60 are emails between Board President Jackie Goldberg’s office and representatives of United Teachers Los Angeles (“UTLA”) and the California Teachers Association (“CTA”). Petitioner does not provide any evidence that these emails were presented to, or considered by, the entire Board or its Committees in connection with the adoption of the Resolution or the Policy. Petitioner has not discussed the contents of these emails or explained in sufficient detail why Petitioner contends that these specific emails should be part of the record. (See e.g. Mot. 13-14.) Petitioner also has not developed an argument for augmenting the record with these documents under any of the exceptions discussed in Western States. To the extent the correspondence is offered to prove the “subjective motives or mental processes” of Board President Goldberg, the correspondence is not relevant to judicial review of the Policy. (See County of Los Angeles v. Superior Court (1975) 13 Cal. 3d 721, 726.) Accordingly, the motion is denied with respect to these documents.

Document Numbers 50 through 59 and 61 through 86 include a wide variety of correspondence related to the Resolution or Policy. Some of the correspondence was apparently sent to the entire Board, while some was not. Some attachments to emails are not included in Petitioner’s thumb drive and have not been reviewed by the court. Petitioner has not discussed the contents of this correspondence in much detail and, in some cases, not at all. (See e.g. Mot. 13-14.) Petitioner also has not developed an argument for augmenting the record with these documents pursuant to any of the exceptions discussed in Western States. To the extent the correspondence is offered to prove the “subjective motives or mental processes” of any Board member, the correspondence is not relevant to judicial review of the Policy. (County of Los Angeles v. Superior Court (1975) 13 Cal. 3d 721, 726.)

The court grants the motion with respect to the following documents because they were correspondence addressed to the Board or reflects the Board’s statements about the policy: 50, 51, 54, 56 through 59, 61 through 63, 65 through 67, 69 through 78, and 80 through 86.

The court denies the motion with respect to the following documents because Petitioner has not included the relevant attachments or does not establish that the Board considered these materials: 52, 53, 55, 64, 68, and 79.

Document Numbers 87 through 100 are internal LAUSD correspondence related to the Resolution or the Policy. Some attachments to emails are not included in Petitioner’s thumb drive and have not been reviewed by the court. Petitioner has not discussed the contents of this correspondence in sufficient detail or explained adequately why Petitioner contends that any specific document should be part of the record. (Mot. 13-14.) Petitioner also has not developed an argument for augmenting the record with these documents pursuant to any of the exceptions under Western States. To the extent the correspondence is offered to prove the “subjective motives or mental processes” of any Board member, the correspondence is not relevant to judicial review of the Policy. (County of Los Angeles v. Superior Court (1975) 13 Cal. 3d 721, 726.) Accordingly, Petitioner has not proven that these documents should be included in the administrative record.

J. Respondents Has Not Identified Any Privileged or Confidential Materials in Petitioner’s Proposed Record

Respondents argue that certain documents that Petitioner seeks to add to the record “may” include privileged or confidential information. (Oppo. 12-13.) The party claiming a privilege bears the burden of establishing the “preliminary facts” necessary to demonstrate that the privilege applies. (Department of Motor Vehicles v. Superior Court (2002) 100 Cal.App.4th 363, 370.) It appears that Respondents have access to all the documents included in Petitioner’s index and thumb drive. Respondents do not claim otherwise. Indeed, Petitioner obtained many of the documents from Respondents pursuant to public records requests. Nonetheless, Respondents do not identify which parts of the documents are purportedly subject to privilege and they provide insufficient legal analysis establishing that a privilege applies to any specific document (or part thereof). Accordingly, Respondents have not satisified their initial burden to establish that any of the documents that Petitioner seeks to add to the record are privileged. In light of this conclusion, the court need not consider Petitioner’s argument that Respondents have waived the asserted privileges. (See Reply 8-10.)

1. Petitioner’s motion is denied with respect to the following documents: 41 through 49, 52, 53, 55, 60, 64, 68, 79 and 87 through 100.

3. Petitioner’s counsel shall provide notice and file proof of service with the court.

[1] Respondents have not argued that the transcripts include public comment, Board deliberations, or other matters unrelated to the Resolution or Policy. In any event, in ruling on the writ petition, the court will only consider those parts of the transcript related to the Resolution or Policy.