Metropolitan News-Enterprise


Wednesday, June 27, 2012


Page 1


School Board Was Not Required to Place Parent’s ‘Rainbow Day’ Protest on Agenda, C.A. Rules


By a MetNews Staff Writer


State law does not give a member of the public an absolute right to place an item on the meeting agenda of a local school board, the Sixth District Court of Appeal ruled yesterday.

While the Education Code creates a right of public participation in the setting of board agendas, Justice Nathan Mihara wrote for the court, boards have discretion in determining whether a proposed item is “directly related to school district business” within the meaning of code Sec. 35145.5.

The justices affirmed a Santa Clara Superior Court judge’s order denying a petition by San Jose Unified School District parent Norina Mooney, who was represented by the conservative Pacific Justice Institute. Mooney objected to a “Rainbow Day” observance at her child’s school.

Rainbow Day was observed at Castillero Middle School on March 18 of last year under the sponsorship of the Gay-Straight Alliance, a student club. The purpose of the event was to “promote anti-bullying awareness for gay, lesbian, bisexual and transgendered students.” 

Mooney asked to be placed on the agenda to propose that future anti-bullying programs be “all-inclusive” rather than gay-centered. The board rejected her request, on the ground that student-sponsored activities at an individual school were outside its purview.

In petitioning for a writ of mandate directing the board to place the item on its agenda, Mooney contended that it had a ministerial duty to do so under the code. The board countered that—while it had a ministerial duty to “receive and consider” the request, it had discretion whether to place the item on the agenda.

Judge Mark Pierce sided with the district and denied the petition.

Mihara, writing for the Court of Appeal, said the trial judge and the district were correct.

“The statutory language reveals that the duty it imposes on a school district to permit a member of the public to place an item on the school board’s agenda is not purely ministerial but is mixed with discretionary power,” the jurist wrote. “The first two sentences of the statute deal with different subjects.  The first sentence provides that the Legislature’s ‘intent’ is that members of the public ‘be able to place matters directly related to school district business on the agenda . . . .’  The Legislature’s use of the words ‘intent’ and ‘be able’ does not affirmatively reflect that it intended an inflexible mandate.  Instead, this language indicates that the Legislature intended to encourage school districts to provide this opportunity to members of the public.  More importantly, the Legislature’s use of the phrase ‘directly related to school district business,’ which it left undefined, inherently requires the school district to exercise some judgment in determining which proposed items meet this standard.”

The second sentence of the section, he said, gives members of the public the right to comment on matters within the board’s subject-matter jurisdiction. But this only applies to items already on the agenda, Mihara said.

Mooney, the justice said, did not expressly claim that the board abused its discretion in declining to place her item on the agenda. But there was no such abuse, he concluded, because it was reasonable for the board to conclude that an “isolated student club activity” was not a matter of district-wide concern.

Mihara rejected the arguments that because the district must approve creation of a student club, the activities of the club become “district business” and that anti-bullying activities are by their nature matters of district-wide concern. Mooney, he emphasized, was not asking to discuss the creation of a student club, or a district-wide anti-bullying activity.

The case is Mooney v. Garcia, H037233.


Copyright 2012, Metropolitan News Company