Quezeda Motion Brief 8.20.07

8/9/2019 Quezeda Motion Brief 8.20.07

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NOTICE OF MOTION AND MOTION FOR WRIT OF MANDATE

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JOHN T. AFFELDT (SBN 154430)

ANGELICA K. JONGCO (SBN 244374)JENNY PEARLMAN (SBN 224879)

PUBLIC ADVOCATES, INC.

131 Steuart Street, Suite 300San Francisco, California 94105

Tel. (415) 431-7430

Fax (415) 431-1048Email: [email protected]

Attorneys for PETITIONERS

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA

GRISELDA QUEZADA, MARTHA ORTEGA,

and JO ANN SIBLEY,

Petitioners,

v.

KIMBERLY STATHAM, State Administrator ofOakland Unified School District, GOVERNING

BOARD OF OAKLAND UNIFIED SCHOOLDISTRICT, and JACK O’CONNELL, StateSuperintendent of Public Instruction,

Respondents.

Case No. RG07340358

NOTICE OF MOTION AND MOTIONFOR WRIT OF MANDATEVIA FAX

Cal. Civ. Proc. Code § 1085

Hearing Reservation #745246Date: October 11, 2007Time: 9:00 a.m.Dept: 31Judge: Hon. Frank Roesch

TO RESPONDENTS AND THEIR ATTORNEYS OF RECORD:

PLEASE TAKE NOTICE that on October 11, 2007, at 9:00 a.m. in Department 31 of the above-


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entitled court, located at 201 Thirteenth Street, Oakland, California, Petitioners in the above-entitled

action will, and do hereby, move the Court, pursuant to Code of Civil Procedure §§ 1085 and 1086, for

an order directing issuance of a peremptory writ of mandate commanding Respondents Kimberly

Statham, Governing Board of Oakland Unified School District, and Jack O’Connell (collectively,

“Respondents”), immediately upon receipt of the writ, to:

(1) comply fully with all SARC obligations and, in particular, to comply with

a.

Article XVI section 8.5(e) of the California Constitution, sections 2(e), 6, and 8 of

Proposition 98, and sections 33126.1, 35256(c), and 35258 of the Education Code by

immediately issuing and publicizing, including on the Internet, complete 2004-05

SARCs and 2005-06 SARCs for each district school, including the schools specifically

identified in Exhibit 4 of Petitioners’ Verified Petition for Writ of Mandate;

b. Section 33126(b)(5) of the Education Code by providing required information in the

2004-05 and 2005-06 SARCs for each district school on teacher misassignments and

teacher vacancies, including the schools specifically identified in Exhibits 5 and 6 of

Petitioners’ Verified Petition for Writ of Mandate; and

c. Section 33126(b)(3) of the Education Code by providing required information in the

2005-06 SARCs for each district school on estimated expenditures per pupil, and on the

average of actual teacher salaries, including the schools specifically identified in

Exhibits 7 and 8 of Petitioners’ Verified Petition for Writ of Mandate;

(2) comply with section 48985(a) of the Education Code by translating the 2005-06 SARCs into

primary languages other than English for district schools where 15 percent or more of the

students speak a primary language other than English, including the schools specifically


(3)

provide the parent or guardian of each student enrolled in a district school with written

notification that: (a) this Court has found Respondents in violation of their SARC obligations

and ordered Respondents to correct those deficiencies, and (b) complete 2004-05 and 2005-06


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SARCs are available on the Internet for each OUSD school, with hard copies available at the

school site upon request;

(4) provide the parent or guardian of each student enrolled in a district school where 15 percent or

more students speak a primary language other than English with written notification in that

primary language that: (a) this Court has found the Respondents in violation of their SARC

obligations and ordered Respondents to correct those deficiencies, and (b) translated 2005-06

SARCs for their child’s school are available on the Internet, with hard copies available at the

school site upon request; and

(5) comply fully with their SARC obligations annually, by May 31st of each school year or such

earlier date as may be fixed by law;

(6) make and file a return to the writ within 30 days from the date of the issuance of the writ

demonstrating that Respondents have complied with each element of the directives of this

order;

(7) make and file a final return to the writ demonstrating that they have complied fully with their

SARC obligations for the 2007-08 school year (with respect to 2006-07 SARCs) by no later

than June 6, 2008 or, if an earlier date has been fixed by law, by no later than one week after

such earlier date.

Petitioners bring this motion pursuant to Code of Civil Procedure §§ 1085 and 1086 on the

grounds that Respondents have not fulfilled their ministerial and nondiscretionary public duties for the

2005-06 and 2006-07 academic years to: (1) issue, publicize, and post annually updated and complete

SARCs for OUSD schools; (2) include on the SARCs that have been prepared for district schools

essential data on teacher misassignments and vacancies, as well as per pupil expenditures and the

average teacher salaries; and (3) translate the SARCs into another language if 15% or more of the

students at an OUSD school speak a single primary language other than English.

This motion is based on this notice of motion; on the accompanying memorandum of points

and authorities in support; on the pleadings, records, and files in this action, including the Verified


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MEMORANDUM OF POINTS AND AUTHORITIES IN

SUPPORT OF PETITION FOR WRIT OF MANDATE

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ANGELICA K. JONGCO (SBN 244374)JENNY PEARLMAN (SBN 224879)


131 Steuart Street, Suite 300San Francisco, California 94105

Tel. (415) 431-7430

Fax (415) 431-1048Email: [email protected]

Attorneys for PETITIONERS




and JO ANN SIBLEY,

Petitioners,

v.

KIMBERLY STATHAM, State Administrator ofOakland Unified School District, GOVERNING

BOARD OF OAKLAND UNIFIED SCHOOLDISTRICT, and JACK O’CONNELL, StateSuperintendent of Public Instruction,

Respondents.

Case No. RG07-340358

MEMORANDUM OF POINTS ANDAUTHORITIES IN SUPPORT OF

PETITION FOR WRIT OF MANDATE

VIA FAX


Hearing Reservation #745246Date: October 11, 2007

Time: 11:00 a.m.

Dept. 31Judge: Hon. Frank Roesch


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INTRODUCTION

Established in 1988 by California voters through the passage of Proposition 98, the School

Accountability Report Card (“SARC”) stands out as the one document that provides comprehensive

reporting to parents and the public on key conditions at each individual school site within a district.

See Prop. 98 §§ 2(e), 6-8; Educ. Code §§ 33126, 35256.1 For nearly two decades, the governing board

of every school district has been required to issue and publicize annually updated SARCs for each

district school and to ensure that each SARC contains specific accountability information enumerated

by statute. Prop. 98 §§ 2(e), 8; Cal. Const., art. XVI § 8.5(e); Educ. Code §§ 33126, 35256 (as

amended since 1988).

The SARC serves two important legislative purposes. First, “to ensure that our schools spend

money where it is most needed,” the SARC was mandated by the voters to “guarantee accountability

for dollars spent.” Prop. 98 § 2(e). Second, to “enable [a parent] to make informed decisions on

which school to enroll his or her child[,]” the SARC provides essential “data by which a parent can

make meaningful comparisons between public schools.” Educ. Code § 33126(a). A complete SARC

must include individual school site information on a range of indicators critical to assessing students’

learning environments, including the availability of qualified teachers, per pupil expenditures, average

teacher salaries, dropout and graduation rates, test scores, textbook shortages, and necessary facility

repairs. Id. § 33126(b). In addition, the SARC must be translated into another language for parents

whose children attend schools where 15% or more of the students speak that other primary language.

See id. § 48985(a).

The law is unambiguous that parents and the public have a right to a complete and annually

updated SARC for each district school. Cal. Const., art. XVI § 8.5(e); Educ. Code §§ 33126,

33126.1(l), 35256(c), 35258. For at least the past two school years, however, parents and the public in

1 Unless otherwise noted, for purposes of this Motion, references to the California Education Code

have been shortened to “Education Code” or “Educ. Code” and references to the California Code of

Civil Procedure have been shortened to the “Code of Civil Procedure” or “Civ. Proc. Code.”


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the Oakland Unified School District (“OUSD” or “the District”) have been left in the dark by the

District’s ongoing failure to live up to these obligations.

Griselda Quezada, Martha Ortega, and Jo Ann Sibley (collectively, “Petitioners”), concerned

citizens with children enrolled in the District, bring this action to compel State Administrator of

OUSD Kimberly Statham, the Governing Board of OUSD, and State Superintendent of Public

Instruction Jack O’Connell (collectively, “Respondents”) to comply with the District’s

nondiscretionary duties to prepare and disseminate updated and complete SARCs for OUSD schools.2

Respondents’ continued failure to satisfy their SARC obligations in full has denied parents,

community members, and the public the vital information about OUSD schools to which they are

entitled under the California Constitution and state statutes.

FACTS

In 1988, California voters passed Proposition 98, the “Classroom Instructional Improvement

and Accountability Act,” which amended the California Constitution to require school districts to

“adopt a School Accountability Report Card for each school” (Cal. Const. art. XVI § 8.5(e), added by

Prop. 98 § 6; see also Prop. 98 § 2(e)) and amended the Education Code to state that “[t]he governing

[b]oard of each school district shall annually issue a School Accountability Report Card for each

school in the school district” (Educ. Code § 35256(c), added by Prop. 98 § 8). (Pet. ¶ 18.)3

Because of the public importance of every school district’s duty to issue and publicize annually

a complete SARC for each district school, on May 15, 2006, Petitioners’ counsel sent a letter to all

2 Following a fiscal emergency in 2003, the rights, duties, and powers of the Governing Board were

assumed by the State Superintendent of Public Instruction and the State Administrator for OUSDunder Senate Bill 39. S.B. 39, Stats. 2003, ch. 14 §§ 3-4, 5(b), 16. Hence, State Administrator

Statham and State Superintendent of Public Instruction O’Connell have assumed the Governing

Board’s duties with respect to publication of SARCs. Given that at some future date, as yet unknown,

the Governing Board may resume its duties and powers over the District, including all of OUSD’sSARC obligations, the Governing Board is an important and necessary party to this action.3 Citation to the Verified Petition for Writ of Mandate (filed Aug. 13, 2007) is abbreviated as “Pet.”,

and citation to an Exhibit attached to the Verified Petition for Writ of Mandate is abbreviated as

“Exh.”


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district superintendents in the State, including the State Administrator of OUSD, to remind them “of

the district’s responsibility to comply with legal obligations regarding [SARCs] for each of its

schools” and that the deadline for updating and publicizing SARCs was May 31, 2006. That letter

alerted Respondents that Petitioners’ counsel was “prepared to bring legal action . . . against school

districts that fail to comply with SARC requirements . . .” and offered assistance to districts if they had

questions about how to comply with the law. (See Pet. ¶ 20; Exh. 1.)

After a review of OUSD’s SARCs during the summer of 2006, Petitioners’ counsel sent a

letter, dated August 17, 2006, to Respondent Statham to notify her that the District was “in violation of

state requirements concerning the preparation and dissemination of 2004-05 [SARCs]” for the 2005-

06 school year.4 (See Pet. ¶ 21; Exh. 2.) The letter described the District’s failure in meeting its

obligations to: (a) issue and publicize an updated SARC for each district school by the end of the

academic year, (b) provide on the SARCs essential information required under Education Code section

33126(b), and (c) translate SARCs into a primary language other than English where 15% or more of

pupils enrolled in a school that other primary language. Petitioners’ counsel further notified

Respondents that they “may be compelled to file suit in the event [OUSD] does not agree in writing

[within 15 calendar days] to comply with its SARC obligations as set forth in this letter.” ( Id.)

After receiving no response at all from Respondent Statham or anyone at the District,

Petitioners’ counsel sent another letter, dated September 20, 2006, to Respondent Statham. This letter

reiterated the demands set forth in the August 17, 2006 letter and requested a written response within

ten days. (Pet. ¶ 22; Exh. 3.) When ten days passed with no response yet again, Petitioners’ counsel

contacted OUSD and State officials in an attempt to compel the District to comply fully with its

mandatory SARC duties. (Pet. ¶ 23.) This prompted numerous communications over a period of nine

4 A SARC completed in the 2005-06 school year is usually referred to as a 2004-05 SARC, and aSARC completed in the 2006-07 school year is usually referred to as a 2005-06 SARC as most of the

data reported in SARCs are derived from the prior academic year. For purposes of this Motion, a2004-05 SARC was to be completed during the 2005-06 school year and a 2005-06 SARC was to be

completed during the 2006-07 school year.


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months between Petitioners’ counsel and OUSD officials as well as State officials regarding the

continued failure by the District to satisfy its SARC obligations for the 2005-06 and 2006-07 school

years. (Pet. ¶ 24.)

In response to ongoing pressure from Petitioners’ counsel, OUSD did correct several

deficiencies in its 2004-05 SARCs for the 2005-06 academic year and 2005-06 SARCs for the 2006-

07 academic year. ( Id.) Nevertheless, despite numerous opportunities to comply with the clear

statutory requirements for SARCs, to date—more than a year after full compliance was required for

the 2004-05 SARCs and more than two and a half months after full compliance was required for the

2005-06 SARCs—OUSD still has not satisfied its mandatory SARC duties for the past two school

years. (Pet. ¶¶ 19, 24.)

As of August 10, 2007, Respondents failed to meet at least the following SARC obligations:

(1) issue, publicize, and post 2004-05 SARCs for 10 district schools and 2005-06 SARCs for 16

district schools (Pet. ¶¶ 24, 26; Exh. 4); (2) report required information in 2004-05 SARCs on teacher

misassignments at 19 schools and teacher vacancies at 21 schools (Pet. ¶¶ 24, 28; Exhs. 5, 6); and (3)

report required information in 2005-06 SARCs on teacher misassignments at 76 schools, teacher

vacancies at 82 schools (id.), on per-pupil expenditures at 96 schools (Pet. ¶¶ 24, 30; Exh. 7), and on

average teacher salaries at 96 schools (Pet. ¶¶ 24, 30; Exh. 8). In addition, Respondents failed to

translate into languages other than English the 2005-06 SARC for 36 schools requiring Spanish

translation and 7 schools requiring Chinese translation. (Pet. ¶¶ 24, 33; Exh. 9.)5

As a result of Respondents’ continuing failure to comply fully with their SARC obligations,

Petitioners bring this action to enforce their right and that of the public to vital information contained

in the SARCs.

5 While these are the deficiencies that Petitioners’ counsel has identified, Respondents are responsible

for satisfying fully all their SARC obligations—not just those areas of concern that are the focus of the

present action.


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ARGUMENT

For the past two school years, Respondents failed to comply with their ministerial and

nondiscretionary duties to: (1) issue, publicize, and post annually updated and complete SARCs for

OUSD schools; (2) include on the SARCs that have been prepared for district schools essential data on

teacher misassignments and vacancies, as well as per pupil expenditures and average teacher salaries;

and (3) translate the SARCs into another language if 15% or more of the students at an OUSD school

speak a single primary language other than English. Petitioners are entitled to a writ of mandate,

pursuant to Code of Civil Procedure sections 1085 and 1086, to compel Respondents to perform these

duties and remedy the continuing effects of Respondents’ statutory violations.

I.

RESPONDENTS FAILED TO COMPLY WITH THEIR NONDISCRETIONARYDUTIES UNDER THE STATE CONSTITUTION AND EDUCATION CODE TO

ISSUE, PUBLICIZE, AND POST ANNUALLY UPDATED SARCS.

Pursuant to Section 35256(c) of the Education Code, Respondents have nondiscretionary and

ministerial public duties to:

annually issue a School Accountability Report Card for each school in the school

district, [and] publicize such reports . . . .

Educ. Code § 35256(c) (emphasis added). 6 The District’s duty to “adopt a [SARC] for each school”

is also explicit in the California Constitution. Calif. Const., art. XVI § 8.5(e) (“Any school district

maintaining an elementary or secondary school . . . shall adopt a [SARC] for each school” (emphasis

added)). In addition, the Legislature has mandated that school districts “connected to the Internet shall

make the information contained in the [SARC] . . . accessible on the Internet ” and the “information

shall be updated annually.” Educ. Code § 35258 (emphasis added); see also id. § 33126.1(l) (“Local

6 Education Code section 35256(c) provides that “[t]he governing [b]oard of each school district shall

annually issue a School Accountability Report Card for each school in the school district, publicize

such reports, and notify parents or guardians of students that a copy will be provided upon request.”

Educ. Code § 35256(c) (emphasis added).


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educational agencies shall make these [SARCs] available through the Internet or through paper

copies” (emphasis added)).

It is a basic principle of statutory construction that “[i]f the words [of the statute] themselves

are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning

governs.” Wells v. One2One Learning Found., 39 Cal. 4th 1164, 1190 (2006). In describing a

district’s SARC duties, as set forth above, the Legislature consistently uses the word “shall,” the

ordinary meaning of which is “an order, a promise, a requirement, or an obligation.” The American

Heritage College Dictionary 1251 (Houghton Mifflin, 3d ed. 1997) (hereinafter, “ American Heritage

Dictionary”). Moreover, under the Education Code definitions and “a well-settled principle of

statutory construction,” the word “shall” is mandatory. Common Cause v. Bd. of Supervisors, 49 Cal.

3d 432, 443 (1989); Educ. Code § 75 (“‘Shall’ is mandatory and ‘may’ is permissive.”).

Hence, the plain language of the statutes regarding issuing and publicizing yearly SARCs

online is clear. This is a mandatory obligation, and every school district is required to or “shall”

“issue” and “publicize” a SARC for each elementary or secondary school under its jurisdiction. See

Educ. Code § 35256(c). In addition, those districts connected to the Internet “shall” update SARC

information and post the SARC online. See id. § 35258; see also id. § 33126.1(l); Cal. Const., art.

XVI § 8.5(e). Moreover, school districts must fulfill these obligations “annually” (Educ. Code

§§ 35256(c), 35258), in other words, on a “yearly” basis ( American Heritage Dictionary, supra at 55).

The CDE interprets “annually” to mean “once in a school year.” CDE, Frequently Asked

Questions ¶ 8, at http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 9, 2007). The CDE

further explains that “[s]ince SARCs must be prepared and disseminated before the end of the school

year to comply with the law . . . [districts] must prepare and disseminate new SARCs sometime during

the period of November through May of each year.” Id. As the agency charged with monitoring


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district compliance with SARC duties (Educ. Code § 33126.1(m)),7 the CDE’s interpretation of

“annually” to mean by the end of May for each school year “is entitled to consideration and respect.”

MHC Operating Ltd. P’ship v. City of San Jose, 106 Cal. App. 4th 204, 219 (2003) (citing Yamaha

Corp. of Amer. v. State Bd. of Equalization, 19 Cal. 4th 1, 7 (1998) and finding that “[a]n agency

interpretation of . . . a statute is entitled to consideration and respect by the courts” given the agency’s

“special familiarity” with statutes within its jurisdiction).

Taken together, the provisions in the State Constitution and Education Code regarding

annually issuing and publicizing the SARCs impose upon OUSD a nondiscretionary, ministerial duty

to issue, publicize, and post online updated SARCs for each district school by May 31st of every

school year. Yet, as of August 10, 2007, the District failed to meet these mandatory duties for many

district schools. In particular, more than a year after May 31, 2006, Respondents failed to issue,

publicize, and post online 2004-05 SARCs for 10 district schools, and two and a half months after

May 31, 2007, Respondents failed to issue, publicize, and post online 2005-06 SARCs for 16 district

schools. (See Pet. ¶¶ 24, 26; Exh. 4.)

II. RESPONDENTS FAILED TO COMPLY WITH THEIR NONDISCRETIONARY

DUTIES UNDER EDUCATION CODE § 33126(b) TO PROVIDE PARENTS AND THE

PUBLIC WITH ESSENTIAL INFORMATION ON SCHOOL SITE CONDITIONS.

Respondents have a ministerial and nondiscretionary public duty to ensure that SARCs contain

key information about each district school, as enumerated by Education Code section 33126(b).

Section 33126(b) states that “[t]he [SARC] shall include, but is not limited to, assessment of the

following school conditions . . . .” Educ. Code § 33126(b) (emphasis added); see also id. § 35256(a)

(“The [SARC] shall include, but is not limited to, the conditions listed in Education Code Section

33126 .”). Again, the use of the word “shall” indicates that inclusion of the information in section

33126(b) on the SARCs is mandatory. See American Heritage Dictionary, supra at 1251 (defining

7 Section 33126.1(m) states that the CDE “shall monitor compliance of local educational agencies with

the requirements to prepare and to distribute school accountability report cards.” Educ. Code

§ 33126.1(m).


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“shall” as “an order, a promise, a requirement, or an obligation”); see also Common Cause, 49 Cal. 3d

at 443; Educ. Code § 75. Section 33126(b) goes on to list the precise information that school districts

“shall include” on their SARCs. Id. § 33126(b).

Despite the clear and mandatory obligation to disclose all the information set forth in

Education Code section 33126(b) for each district school, Respondents failed to provide such

information on OUSD’s 2004-05 and 2005-06 SARCs. (Pet. ¶ 24.) In particular, as of August 10,

2007, Respondents failed to disclose critical information on teacher qualifications and placement as

well as per pupil expenditures and the average of teacher salaries as set forth herein. (Pet. ¶¶ 24, 28,

30.)

A.

Respondents Failed to Provide Required Data, Pursuant to Education Code§ 33126(b)(5), on Teacher Misassignments and Teacher Vacancies.

On the SARCs, Respondents have a nondiscretionary and ministerial public duty to report the

number of teacher misassignments and teacher vacancies at each district school for the most recent

three-year period. See Educ. Code § 33126(b)(5). Under Education Code section 33126(b)(5), the

SARC:

shall include . . . [t]he total number of the school’s fully credentialed teachers, thenumber of teachers relying upon emergency credentials, the number of teachers

working without credentials, any misassignments, including missassignments of

teachers of English learners, and the number of vacant teacher positions for the most

recent three-year period.

Id. (emphasis added).

A teacher misassignment occurs when a teacher is providing instruction on a particular subject

matter without the proper credential or statutory authorization to do so—for example, an English

teacher providing Algebra instruction. See id. § 33126(b)(5)(B). A misassignment can also occur

when a teacher lacking the proper credential or authorization to teach students classified as English

learners is assigned nonetheless to teach English learner students. See id. A vacancy occurs when no

qualified, permanent teacher has been assigned to teach a course at the beginning of the school year or


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semester. See id. § 33126(b)(5)(A). When there is a teacher vacancy, students typically receive

instruction from a series of substitute teachers who lack appropriate subject matter credentials. (Pet. ¶

27.)

With respect to both the 2004-05 and 2005-06 SARCs that have been prepared for OUSD

schools, Respondents failed to provide required information for the most recent three-year period on

teacher misassignments and vacancies for each district school. For the 2004-05 SARCs that OUSD

has issued, as of August 10, 2007, Respondents failed to disclose required information on teacher

misassignments at 19 schools and teacher vacancies at 21 schools. For the 2005-06 SARCs that

OUSD has issued, as of August 10, 2007, Respondents failed to disclose required information on

teacher misassignments at 76 schools and teacher vacancies at 82 schools. (See Pet. ¶¶ 24, 28; Exhs.

5, 6.)

B. Respondents Failed to Provide Required Data, Pursuant to Education Code

§ 33126(b)(3), on Per Pupil Expenditures and the Average Teacher Salaries.

On the SARCs, Respondents have a nondiscretionary and ministerial public duty to report the

estimated per pupil spending and the average teacher salaries for each district school. Pursuant to

section 33126(b)(3) of the Education Code, SARCs “shall include” an assessment of “[e]stimated

expenditures per pupil and types of services funded” as well as the average of teacher salaries at each

district school. Educ. Code § 33126(b)(3). Specifically:

[t]he assessment of estimated expenditures per pupil shall reflect the actual salaries of

personnel assigned to the schoolsite . . . . shall be reported in total, shall be reported in

subtotal by restricted and by unrestricted source, and shall include a reporting of theaverage of actual salaries paid to certificated instructional personnel at that schoolsite.

Id.8 For the 2005-06 SARCs that have been prepared, as of August 10, 2007, Respondents have failed

to disclose required information on estimated expenditures per pupil at 96 schools, and further, have

8 The law has required reporting of “estimated expenditures per pupil, and types of services funded”

on the SARC since the passage of Proposition 98 in 1988. See Prop. 98 § 7, adding Educ. Code §33126. A 2005 legislative amendment clarified this requirement by inserting the preceding language

quoted from section 33126(b)(3). See S.B. 687, Stats. 2006, ch. 358 § 1.5. Although this amendment


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not provided the required information on average teacher salaries at 96 schools. (See Pet. ¶¶ 24, 30;

Exhs. 7, 8.)

The two articulated legislative purposes of the SARC make clear that the information to be

included in all SARCs, as set forth in section 33126(b), is of vital importance to parents, like

Petitioners, and the public. First, in a statement that immediately precedes the listing of the mandated

contents for each SARC, the Legislature explicitly states its intent that “[t]he [SARC] shall provide

data by which a parent can make meaningful comparisons between public schools that will enable him

or her to make informed decisions on which school to enroll his or her children.” Educ. Code §

33126(a). Moreover, Proposition 98, which created the SARC, articulated the importance of the

document “to ensure that our schools spend money where it is most needed” and to “guarantee

accountability for dollars spent.” Prop. 98 § 2(e). Thus, by failing to provide complete SARCs,

containing statutorily required school site information on teacher misassignments and vacancies, per

pupil expenditures, and the average teacher salaries, Respondents have deprived and continue to

deprive the public and parents like Petitioners of their right to essential information on individual

school site conditions.

III. RESPONDENTS FAILED TO COMPLY WITH THEIR NONDISCRETIONARY

DUTY UNDER EDUCATION CODE § 48985(a) TO TRANSLATE SARCS INTOLANGUAGES OTHER THAN ENGLISH.

Respondents failed to comply with their nondiscretionary public duty to translate SARCs into a

language other than English for schools where 15% or more of the students speak another single

primary language. Pursuant to section 48985(a):

[i]f 15 percent or more of the pupils enrolled in a public school . . . speak a single

primary language other than English, . . . all notices, reports, statements, or records

sent to the parent or guardian of any such pupil by the school or school district shall, in

addition to being written in English, be written in the primary language . . . .

took effect on January 1, 2006, and applies to the 2004-05 SARCs due by May 31, 2006, Petitioners

only seek to enforce this reporting requirement for the 2005-06 SARCs.


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Educ. Code § 48985(a) (emphasis added). Again, pursuant to the plain meaning of the word “shall,”

translation of documents where 15% or more of the students at a school speak a single primary

language other than English is mandatory. See American Heritage Dictionary, supra at 1251 (defining

“shall” as “an order, a promise, a requirement, or an obligation”); see also CDE, Frequently Asked

Questions ¶ 9, at http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 7, 2007) (stating that

the “translation requirements [of Education Code § 48985] apply to the SARC just as they apply to

any other written communication that a district or school prepares for the purpose of informing a

student’s parent or guardian”).9

Moreover, pursuant to Education Code section 33126(d), the SARC is to be provided to

parents in a manner that makes it “easy to read and understandable.” Educ. Code § 33126(d).

Specifically,

[i]t is the intent of the Legislature that schools make a concerted effort to notify parents

of the purpose of the [SARCs], . . . and ensure that all parents receive a copy of thereport card ; . . . ensure that the report cards are easy to read and understandable by

parents; . . . and to ensure that administrators and teachers are available to answer any

questions regarding the report cards.

Id. (emphasis added).10

To be “easy to read and understandable” (id.), it is inherent that the SARC

should be translated where required by section 48985(a). This is supported by federal law that dictates

that local educational agencies “shall . . . publicly disseminate” annual accountability report cards “to

9 As the entity charged with monitoring the compliance of districts with their SARC duties (Educ.

Code § 33126.1(m)) and designated by the Legislature to “determine the types of documents and

languages a school district translates to a primary language other than English [and] the availability of

these documents to parents or guardians who speak a primary language other than English” (id. §

48985(b)), the CDE’s interpretation of districts’ translation obligations with respect to disseminationof the SARC “is entitled to consideration and respect.” MHC Operating Ltd. P’ship, 106 Cal. App.

4th at 219.10

In addition, the Legislature has emphasized the importance of the SARC as a document directed to

parents. See, e.g., Educ. Code § 33126(a) (“The [SARC] shall provide data by which a parent canmake meaningful comparisons between public schools . . .” (emphasis added)); id. § 35256(c) (“The

governing [b]oard of each school district shall annually issue a [SARC] for each school . . . and notify

parents or guardians of students that a copy will be provided upon request.” (emphasis added)). To

fulfill the purposes of the SARC, parents should be given the SARC in their primary language.


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all parents of students attending [district] schools in an understandable and uniform format . . . .” No

Child Left Behind Act (“NCLB”), 20 U.S.C. § 6311(h)(2)(E) (emphasis added). California uses the

SARC to comply with this federal requirement.11

Despite these mandates, for the past academic year, Respondents have flouted their duty under

section 48985(a) to translate the SARCs into a language other than English for each OUSD school

where 15% or more of the students speak another single primary language. (Pet. ¶¶ 24, 33.) As of

August 10, 2007, Respondents failed to translate the 2005-06 SARCs into Spanish for 36 district

schools where Spanish is the primary language for 15% or more of the students and into Chinese for 7

schools where Chinese is the primary language for 15% or more of the students. (See Pet. ¶¶ 24, 33;

Exh. 9.)12

IV.

PETITIONERS ARE ENTITLED TO A WRIT OF MANDATE TO COMPEL

RESPONDENTS TO COMPLY WITH ALL THEIR NONDISCRETIONARY SARC

DUTIES PURSUANT TO THE STATE CONSTITUTION AND EDUCATION CODE.

Pursuant to sections 1085 and 1086 of the Code of Civil Procedure, “[a] writ of mandate may

be issued by any court to any inferior tribunal, . . . board, or person, to compel the performance of an

act which the law specially enjoins, as a duty resulting from an office, trust, or station . . .” (Civ. Proc.

Code § 1085) and “must be issued in all cases where there is not a plain, speedy, and adequate remedy,

in the ordinary course of law” (id. § 1086). California courts have long recognized that issuance of a

writ of mandate is appropriate to compel a public agency to perform its mandatory duties under law.

See Santa Clara County Counsel Att’ys Ass'n v. Woodside, 7 Cal. 4th 525, 539 (1994) (“The

11 According to the CDE, a thoroughly completed SARC fulfills the federal NCLB requirement for

district accountability report cards. See Frequently Asked Questions ¶ 5, at

http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 17, 2007).12

Petitioners relied upon information available on the CDE website for determining whether a school

has 15% or more pupils that speak a primary language other than English. See CDE, 2005-06

Language Data for Districts and Schools, at http://www.cde.ca.gov/ls/pf/cm/ld0506bylg.asp (last

visited Aug. 3, 2007).


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funds paid pursuant to invalid audits). Moreover, “the nature of the relief warranted in a mandate

action is dependent upon the circumstances of the particular case.” Lockyer , 33 Cal. 4th at 1113.

Here, because Respondents’ failure to issue and publicize updated SARCs at all or to issue and

publicize complete SARCs may not have been known to parents in the District or to the public, it is

critical that, in addition to issuing complete SARCs, Respondents be required to: (a) notify district

parents and guardians, at the very least, of the District’s failure and its subsequent remedying of its

SARC deficiencies, and (b) meet continuing SARC obligations by May 31st (or an earlier date

established by law) each year.

Accordingly, a writ of mandate is appropriate here to require Respondents to:

(1)

comply fully with all SARC obligations, and in particular to: (a) immediately issue, publicize, and post online updated 2004-05 and 2005-06 SARCs for every district school,and (b) provide required information on teacher misassignments and vacancies in the

2004-05 and 2005-06 SARCs, pursuant to Education Code section 33126(b)(5), and per

pupil expenditures and average teacher salaries in the 2005-06 SARCs, pursuant toEducation Code section 33126(b)(3);

(2) translate the 2005-06 SARCs into a language other than English for schools where 15% or

more of students speak a single primary language other than English, pursuant to EducationCode section 48985(a);

(3)

provide the parent or guardian of each student enrolled in a district school with writtennotification that: (a) this Court has found Respondents in violation of their SARC

obligations and ordered Respondents to correct those deficiencies, and (b) complete

2004-05 and 2005-06 SARCs are available on the Internet for each OUSD school, withhard copies available at the school site upon request;

(4) translate such written notification issued pursuant to subsection (3) above, into primarylanguages other than English for parents or guardian of each student enrolled in a district

school where 15 percent or more of the students speak that primary language; and

(5) comply fully with their SARC obligations henceforth, by May 31st of each school year or

such earlier date as may be fixed by law.Petitioners request a preliminary return to the writ within 30 days to demonstrate compliance

with the above numbers (1)-(4), and a final return to the writ, shortly after the 2006-07 SARC is due


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PROPOSED ORDER

VERIFIED PETITION FOR WRIT OF MANDATE

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ANGELICA K. JONGCO (SBN 244374)

JENNY PEARLMAN (SBN 224879)PUBLIC ADVOCATES, INC.

131 Steuart Street, Suite 300

San Francisco, California 94105

Tel. (415) 431-7430Fax (415) 431-1048

Email: [email protected] for PETITIONERS


and JO ANN SIBLEY,

Petitioners,

v.

KIMBERLY STATHAM, State Administrator of

Oakland Unified School District, GOVERNINGBOARD OF OAKLAND UNIFIED SCHOOL

DISTRICT, and JACK O’CONNELL, StateSuperintendent of Public Instruction,

Respondents.

Case No. RG07-340358

[PROPOSED]

ORDER GRANTING PETITIONERS’VERIFIED PETITION FOR WRIT OF

MANDATE

VIA FAX


Hearing Reservation #745246Date: October 11, 2007Time: 9:00amDept: 31Judge: Hon. Frank Roesch


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PROPOSED ORDER


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Petitioners’ Motion for Peremptory Writ of Mandate came on for hearing on October 11, 2007.

Based on the pleadings, papers, and the oral arguments of counsel, this Court concludes as follows:

1. Respondents failed to comply fully with the clear, present, and ministerial duties to

issue, publicize, and post online annually updated 2004-05 and 2005-06 School Accountability Report

Cards (“SARCs”) for each school in Oakland Unified School District (“OUSD” or “the District”),

including those schools listed in Exhibit 4 of the Verified Petition for Writ of Mandate, pursuant to

Article XVI section 8.5(e) of the California Constitution, sections 2(e), 6, and 8 of Proposition 98, and

sections 33126.1(l), 35256(c), and 35258 of the Education Code;

2. Respondents further failed to comply fully with the clear, present, and ministerial duty

to ensure each 2004-05 and 2005-06 SARC contains important information about school site

conditions, pursuant to section 33126(b) of the Education Code. In particular, Respondents failed to

provide required information on (a) 2004-05 and 2005-06 SARCs about teacher misassignments and

vacancies (Educ. Code § 33126(b)(5)) for each district school, including those schools listed in

Exhibits 5 and 6 of the Verified Petition for Writ of Mandate, and (b) 2005-06 SARCs regarding an

assessment of “[e]stimated expenditures per pupil and types of services funded,” including a

“reporting of the average of actual salaries paid to certificated instructional personnel at that

schoolsite” (id. § 33126(b)(3)) for each district school, including those schools listed in Exhibits 7 and

8 of the Verified Petition for Writ of Mandate;

3. In addition, Respondents failed to comply fully with the clear, present, and ministerial

duty, pursuant to section 48985(a) of the Education Code, to translate 2005-06 SARCs into a primary

language other than English for every district school where 15% or more of the students speak that

other primary language, including those schools listed in Exhibit 9 of the Verified Petition for Writ of

Mandate. By this failure, Respondents have deprived Petitioners, parents or guardians who speak a

primary language other than English, and the public of their right to access, in a meaningful way, vital

information about OUSD schools; and

4. Respondents’ failure to comply fully with their SARC obligations as set forth above

has deprived Petitioners, parents or guardians with children enrolled in OUSD schools, and the public


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PROPOSED ORDER


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of important information about the quality of learning opportunities and school site conditions with

which to compare district schools and guarantee accountability for the dollars spent on schools in the

District.

Accordingly, IT IS HEREBY ORDERED that a peremptory writ of mandate in the first

instance issue under the seal of this Court commanding Respondents State Administrator of OUSD,

Kimberly Statham; Governing Board of OUSD; and State Superintendent of Public Instruction Jack

O’Connell, (collectively, “Respondents”) to:

(1) comply fully with all SARC obligations and, in particular, to comply with

a. Article XVI section 8.5(e) of the California Constitution, sections 2(e), 6, and 8 of

Proposition 98, and sections 33126.1, 35256(c), and 35258 of the Education Code by

immediately issuing and publicizing, including on the Internet, complete 2004-05

SARCs and 2005-06 SARCs for each district school, including the schools specifically


b. Section 33126(b)(5) of the Education Code by providing required information in the

2004-05 and 2005-06 SARCs for each district school on teacher misassignments and

teacher vacancies, including the schools specifically identified in Exhibits 5 and 6 of

Petitioners’ Verified Petition for Writ of Mandate; and

c. Section 33126(b)(3) of the Education Code by providing required information in the

2005-06 SARCs for each district school on estimated expenditures per pupil, and on the

average of actual teacher salaries, including the schools specifically identified in

Exhibits 7 and 8 of Petitioners’ Verified Petition for Writ of Mandate;

(2) comply with section 48985(a) of the Education Code by translating the 2005-06 SARCs into

primary languages other than English for district schools where 15 percent or more of the

students speak a primary language other than English, including the schools specifically


(3) provide the parent or guardian of each student enrolled in a district school with written

notification that: (a) this Court has found Respondents in violation of their SARC obligations


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PROPOSED ORDER


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and ordered Respondents to correct those deficiencies, and (b) complete 2004-05 and 2005-06

SARCs are available on the Internet for each OUSD school, with hard copies available at the

school site upon request;

(4)

provide the parent or guardian of each student enrolled in a district school where 15 percent or

more students speak a primary language other than English with written notification in that

primary language that: (a) this Court has found the Respondents in violation of their SARC

obligations and ordered Respondents to correct those deficiencies, and (b) translated 2005-06

SARCs for their child’s school are available on the Internet, with hard copies available at the

school site upon request; and

(5) comply fully with their SARC obligations annually, by May 31st of each school year or such

earlier date as may be fixed by law;

(6) make and file a return to the writ within 30 days from the date of the issuance of the writ

demonstrating that Respondents have complied with each element of the directives of this

order; and

(7) make and file a final return to the writ demonstrating that they have complied fully with their

SARC obligations for the 2007-08 school year (with respect to 2006-07 SARCs) by no later

than June 6, 2008 or, if an earlier date has been fixed by law, by no later than one week after

such earlier date.

Based on the foregoing, Petitioners’ Verified Petition for Writ of Mandate is hereby GRANTED.

Dated: _________, 2007 Judge, Alameda County Superior Court

//

Dated in San Francisco, California, on the 20

th

day of August 2007.

Respectfully submitted,

JOHN T. AFFELDT


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JENNY PEARLMAN

ANGELICA K. JONGCO


Attorneys for Petitioners

By:

JENNY PEARLMAN

ANGELICA K. JONGCO

Documents

Quezeda Motion Brief 8.20.07