Thursday, January 10, 2013
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C.A. Rejects Suit Against State on Behalf of ‘at Risk’ Pupils
Education Authorities Not Required to Conduct Onsite Monitoring of Programs, Justices Rule
By KENNETH OFGANG, Staff Writer
The state Department of Education did not violate state or federal law when it suspended onsite monitoring of specialized education programs for “at-risk” students, the First District Court of Appeal ruled yesterday.
Justice James Lambden, writing for Div. Two, said none of the statutes cited by the plaintiffs including the federal Equal Education Opportunities Act and No Child Left Behind Act, required onsite monitoring, so the DOE and then-Superintendent of Public Instruction Jack O’Connell were within their authority in suspending it in 2009.
The plaintiffs, a number of individuals and community groups, filed suit in San Francisco Superior Court after the state suspended its monitoring of programs—largely federally funded—for children classified as homeless, neglected, delinquent, migrant, or limited English proficient. The plaintiffs contended that the state and some school districts have been spending this money for purposes other than those set forth in the federal laws, and that the state breached commitments it made to the federal government when it applied for NCLB funds.
Budget Savings
In his formal notice of March 2009, the superintendent—responding to the then-governor’s executive order requesting budget savings by state agencies—suspended all non-mandatory onsite evaluations under the department’s “categorical program monitoring” program for a minimum of one year. The program was subsequently revamped, significantly reducing the number of districts subject to monitoring.
Superior Court Judge Charlotte Woolard ruled that the department had no ministerial duty to conduct the reviews; that there was statutory authority for suspending the reviews; that the suspension authority had been properly exercised under State Board of Education regulations; that none of the federal statutes cited by the plaintiffs had been violated by the suspensions; and that the state had properly continued to conduct other monitoring activities. She granted the state’s motion for summary judgment.
Lambden, writing for the Court of Appeal, acknowledged that the EEOA requires the state “to take appropriate action to overcome language barriers that impede equal participation by its students in its instructional programs.” But the plaintiffs were taking a “myopic view” of the requirement by addressing only onsite monitoring and failing to develop an evidentiary record as to the adequacy of the state’s monitoring activities as a whole, the justice wrote.
Lambden went on to conclude that an Education Code section relied on by the plaintiffs requiring “an onsite technical, assistance, monitoring, and enforcement process at least once every three years” by districts that have limited English proficiency pupils enrolled is no longer in force.
Sunset Date
Under legislation enacted in 1983 and 1984, the justice explained, specified educational programs, including “Bilingual Education” under the Chacon-Moscone Bilingual-Bicultural Education Act, were subjected to a sunset date of June 30, 1987.
The plain intent of the Legislature, Lambden said, was that the LEP section cited by the plaintiffs sunset along with other aspects of bilingual education programs. The Legislature recognized this, he reasoned, when it noted in 1993 that the Chacon-Moscone Act was inoperative and voted to establish a new system of bilingual education as part of SB 33, which then-Gov. Pete Wilson vetoed.
The plaintiffs were represented by California Rural Legal Assistance, Inc. and the Youth Law Center, supported by the ACLU Foundation of Southern California, Law Foundation of Silicon Valley, and Asian Pacific American Law Center as amicus curiae.
The case is Alejo v. Torlakson, 13 S.O.S. 79.
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