Miscellaneous: MILAGROS AZUCENA WENDZ VS. CALIFORNIA DEPARTMENT OF EDUCATION ET AL

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Preview
                                SUM-100
SUMMONS FOR COURT USE ONLY
(CITACION JUDICIAL) ($010 PARA USO DELA CORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):

CALIFORNIA DEPARTMENT OF EDUCATION

YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):

MILAGROS AZUCENA WENDZ ’

i :
INOTICE! You have been sued. The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.

You have 30 CALENDAR DAYS after this summons and legal papers are served on you to file a written response at this court and have a copy
|served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www. courtinfo.ca.gov/selfhelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the
court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may
Ibe taken without further warning from the court.

There are other legal requirements. You may want to call an attorney right away. If you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
[these nonprofit groups at the Califomia Legal Services Web site (www./awhelpcalifornia.org), the California Courts Online Self-Help Center
(www. courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
‘costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
jAVISO! Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su version. Lea la informacién a
icontinuacion.

Tiene 30 DIAS DE CALENDARIO después de que le entreguen esta citacion y papeles legales para presentar una respuesta por escrito en esta
Icorte y hacer que se entregue una copia al demandante. Una carta o una llamada telefonica no lo protegen. Su respuesta por escrito tiene que estar
len formato legal correcto si desea que procesen su caso en la corte. Es posible que haya un formulario que usted pueda usar para su respuesta.
|Puede encontrar estos formularios de la corte y mas informacién en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
|biblioteca de leyes de su condado o en Ia corte que le quede mas cerca. Si no puede pagar la cuota de presentaci6n, pida al secretario de la corte que
lie dé un formulario de exenci6n de pago de cuotas. Sino presenta su respuesta a tiempo, puede perder el caso por incumplimiento y Ia corte le podré
quitar su sueldo, dinero y bienes sin mas advertencia.

Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente. Si no conoce a un abogado, puede llamar a un servicio de
lremisién a abogados. Si no puede pagar a un abogado, es posible que cumpla con los requisitos para obtener servicios legales gratuitos de un
programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services,

(www. lawhelpcalifornia.org), en el Centro de Ayuda de las Cortes de California, (www. sucorte.ca.gov) o poniéndose en contacto con Ia corte o ef
colegio de abogados locales. AVISO:’Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre
cualquier recuperacién de $10,000 6 més de valor recibida mediante un acuerdo o una concesién de arbitraje en un caso de derecho civil. Tiene que
lpagar el gravamen de la corte antes de que la corte pueda desechar el caso.

The name and address of the court is: | . CPP? : (Néggero gel Caso):

(El nombre y direccién de la corte es): San Francisco Superior Court - =51 6 7:
400 McAllister Street .
San Francisco, CA 94102

The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is: (E/ nombre, la direccién y el ntimero
de teléfono del abogado del demandante, o del demandante que no tiene abogado, es):

Cynthia L. Rice, Esq., Calif. Rural Legal Assist; 1430 Franklin St,. Ste., 103; Oakland, CA 94612;
DATE: ; A : Clerk, by wwe hat.25 Reputy:
(Fecha) MAR.2 6 2020 Clerk of the Court (Secretario) fy _* *SRGjuntoy-

(For proof of servicé of this summons, use Proof of Service of Summons (form POS-010).) fA
) 7 ANGELICA sung

 

 

 

 

 

 

 

 

 

110.267.0762; F: 510.267.0763

 

  

(Para prueba de entrega de esta citatién use el formulario Proof of Service of Summons, (POS-010)
NOTICE TO THE PERSON SERVED: You are served

4. [-_] as an individual defendant.

2. [__] as the person sued under the fictitious name of (specify):

3. [_] on behalf of (specify):

under: [__] CCP 416.10 (corporation) [_] CCP 416.60 (minor)
[] CcpP 416.20 (defunct corporation) [_] CCP 416.70 (conservatee)
[J CcP 416.40 (association or partnership) [__] CCP 416.90 (authorized person)
[-_] other (specify):
4. [__] by personal delivery on (date) page tot

Form Adopted for Mandatory Use . Code of Civil Procedure §§ 412.20, 466
Sil Count alto SUMMONS ™ a

 

 

 

 

 

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CURTIS DAVIS (SBN 323353) FILED
CALIFORNIA RURAL LEGAL ASSISTANCE, INC. SUPERIOR COURT

449 Broadway COUNTY OF SAN FRANCISCO
El Centro, CA 92243 1 ‘

Telephone: (760) 353-0220 MAR 2 6 2020

Facsimile: (760) 353-8026
edavis@erla.org

CYNTHIA L. RICE (SBN 87630)

JODIE SMITH (SBN 299225)

CALIFORNIA RURAL LEGAL ASSISTANCE, INC.
1430 Franklin Street, Suite 103

Oakland, CA 94612

Telephone: (510) 267-0762

Facsimile: (510) 267-0763

crice@crla.org

jsmith@crla.org

DEBORAH ESCOBEDO (SBN 89093)
LAWYERS’COMMITTEE FOR CIVIL RIGHTS -SF
31 Steuart Street, Suite 400

San Francisco, CA 94105-1243

Telephone: (415) 543-9444

Facsimile: (415)543-0296

descobedo@Icersf.org

 

Attorneys for Plaintiff/Petitioner

SUPERIOR COURT OF THE STATE OF CALIFORNIA
CITY AND COUNTY OF SAN FRANCISCO

MILAGROS AZUCENAWENDZ Case No.:
Plaintiff/Petitioner, PETITION FOR WRIT OF MANDATE AND
COMPLAINT FOR DECLARATORY:AND
vs. INJUNCTIVE RELIEF
CALIFORNIA DEPARTMENT OF

EDUCATION, TONY THURMOND, in his
official capacity as STATE SUPERINTENDENT
OF PUBLIC INSTRUCTION; DOES 1
THROUGH 30, inclusive;

Defendants/Respondents.

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REBECCA A. BUCKLEY-STEIN (SBN 310366)
CALIFORNIA RURAL LEGAL ASSISTANCE, INC.
601 High Street, Suite C

Delano, CA 93215

Telephone: (661) 725-4350

Facsimile: (661) 725-1025

Rbuckleystein@erla.org

BACILIO VARELA (SBN 319541)

CALIFORNIA RURAL LEGAL ASSISTANCE, INC.
1460 6" Street

Coachella, CA 92236

Telephone: (760) 398-7261

Facsimile: (760) 398-1050

Bvarela@erla.org

Attorneys for Plaintiff/Petitioner

 

 

 

 

Petition for Writ of Mandate 2
and Complaint for Declaratory and Injunctive Relief| ©

Plaintiff/Petitioner MILAGROS AZUCENA WENDZ brings this action and alleges:

1. This action challenges regulations issued by Respondents/Defendants that interfere with
the statutorily mandated role that migrant farmworker parents have in helping develop and implement
programs designed to address the educational deficits their children may suffer as a result of their
migratory life.

2. Agricultural work is seasonal and parents of migratory children, by definition, have
migrated from one location to another to perform work during those seasons. A parent might work the
lettuce season in Imperial or Riverside Counties during the fall and winter months and then travel to
Monterey County for the spring, summer and early fall season. Seasons can vary year to year and there
might be work for six or seven months in one year, or four to five in another. Migrant Education
Programs are designed to address the educational gaps caused by the fact that migrant children
accompany their parents and may enroll in more than one school district over the course of their
education and often during a single academic year.

3. Through the California Migrant Education Act, the California Legislature established the
Migrant Education Program to address the unique educational challenges faced by children of migrant
workers. (Ed. Code, §§ 54440, et seq.) The Migrant Education Program provides supplemental
resources and services to children of migrant workers through programs funded by the United States
Department of Education. (20 U.S.C. §§ 6301 et seg. and 6391 et seq.) These programs and services
are available to currently and former migratory children. “‘Currently migratory child’” means a child
who has moved with a parent, guardian, or other person having custody, from one school district to
another, either within the State of California or from another state within the 12—month period
immediately preceding his or her identification as such a child, in order that the child, a parent, guardian,
or other member of his or her immediate family might secure temporary or seasonal employment in an
agricultural or fishing activity, and whose parents or guardians have been informed of the child’s
eligibility for migrant education services.” (Ed. Code, § 54441, subd. (a).) “Former migratory child”
means a child who was formerly eligible to be counted and served as a currently migratory child within

the past five years, but who is no longer a currently migratory child. . .” (Ed. Code, § 54441, subd. (b).)

 

 

 

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4. Federal law mandates that the State consult with parent advisory councils in the planning
and operation of the migrant programs in a format and language understandable to the parents. (20
U.S.C. § 6394(c)(3)(B).) To ensure compliance with these parent involvement mandates, California
Education Code section 54444.2 provides for parent advisory councils at the local level and statewide.
Regional Parent Advisory Councils (“RPACSs”) are formed by local school districts and county offices
of education — “operating agencies.” California law provides that “[t]he Superintendent shall adopt rules
and regulations requiring each operating agency receiving migrant education funds or services to
actively solicit parental involvement in the planning, operation, and evaluation of its programs
through the establishment of, and consultation with, a parent advisory council.” (Ed. Code, § 54444.2,
subd. (a)(1) [emphasis added].) The statute then provides that “[t]he membership of each parent
advisory council shall be composed of members who are knowledgeable of the needs of migrant children
and shall be elected by the parents of migrant children enrolled in the operating agency’s programs. The
composition of the council shall be determined by the parents at a general meeting to which all
parents of pupils enrolled in the migrant program shall be invited. Parents shall be informed, in a
language they understand, that the parents have the sole authority to decide on the composition of
the council. All parent candidates for the council shall be nominated by parents; nonparent candidates
shall be nominated by the groups they represent teachers by teachers, administrators by administrators,
other school personnel by other school personnel, and pupils by pupils. All other community
candidates shall be nominated by the parents. . .” (Ed. Code, § 54444.2, subd. (a)(1)(A) [emphasis
added].)

5. On November 30, 2018, then State Superintendent of Public Instruction (“SSPI”) Tom
Torlakson and the California Department of Education (“CDE”) published a notice of proposed
regulations imposing restrictions on the membership and governance of RPACs, identified as
“Amendments to the California Code of Regulations, Title 5, Regarding the Migrant Education Program,
Regional Parent Advisory Council”. (“Proposed Regulations”). The Notice of Proposed Action on
Regulations was published in the California Regulatory Notice Register on November 30, 2018. That
notice provided for a public comment period of 45 days which was scheduled to end on January 14,

2019. A true and correct copy of the Notice, Proposed Regulations and the Initial Statement of Reasons

 

 

 

Petition for Writ of Mandate 4
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are attached hereto as Exhibit 1. The Statement of Reasons states that the Proposed Regulations “will
address the governance of PACs at the regional level, known as Regional Parent Advisory Committees
(RPACs).” (/d.) However, the Proposed Regulations are not limited to governance issues and
predominately include directives to operating agencies that purport to grant them control over certain
aspects of the composition of the RPACs and the conduct of RPAC meetings.

6. Subsequently, Respondents/Defendants SSPI and CDE issued a notice extending the
comment period for the regulations to March 1, 2019.

7. During this extended comment period, public comment was submitted by, among others,
California Rural Legal Assistance, Inc. (“CRLA”) and the Lawyers’ Committee for Civil Rights
(“LCCR”) objecting to the fact that the Proposed Regulations exceeded the authority granted to CDE
and the SSPI by Education Code sections 54441 and 54444.2. The Proposed Regulations would

> &,

supersede the migrant parents’ “sole authority” to determine the composition of their parent advisory
councils by: 1. imposing unauthorized term limits on migrant parents and community members; 2.
defining community members in a manner that limits them to school district personnel, and establishing
a nomination process allowing only school districts — not migrant parents -- to nominate community
members; 3. imposing residency requirements on parent RPAC members that are inconsistent with their
status as migrant workers; 4. disqualifying former migrant parents from serving as community members
if they have served as a parent member; 5. denying migrant parents and other RPAC members the right
to remove members, while vesting that right in the Superintendent of the County Office of Education;
6. disqualifying a migrant parent RPAC member who resides out of the Region for six months, even if
the relocation was due to migratory work; and, 7. mandating the number and ratio of parent and
community members on the RPACs.

8. Respondents revised the Proposed Regulations on two occasions. On July 22, 2019,
Respondents/Defendants issued a “15-Day Notice of Modifications to Text of Proposed Regulations
Regarding Regional Parent Advisory Council” which included substantive modifications to the
Proposed Regulations by: 1. expanding the required number of parent members of the RPACs from 10

to 15 members; and 2. prohibiting RPACs from allowing alternate council members to serve while the

regular member is unavailable, even if that unavailability is due migratory work. Although these

 

 

 

Petition for Writ of Mandate 5
and Complaint for Declaratory and Injunctive Reliefmodifications were substantive, only a 15-day comment period was provided. A true and correct copy
of the Notice, Proposed Regulations and Statement of Reasons is attached hereto as Exhibit 2.

9. During the 15-day comment period, public comment was submitted by, among others,
CRLA and LCCR objecting to the modifications on the grounds that they were substantive and should
have been the subject of a full comment period. CRLA and LCCR further objected that the
modifications unlawfully restricted the RPAC’s authority to control their composition by prohibiting
alternate members, pointing out that alternates can be used to develop successor RPAC members and to
provide continuity in the event that a parent member — who by definition is migratory — is required to
leave the area to accept seasonal work.

10. On September 23, 2019, a “Second 15-Day Notice of Modifications to Text of Proposed
Regulations Regarding Regional Parent Advisory Councils” was published, inviting comment on
modifications that allowed rather than required each RPAC to have 15 parent members and moved a
provision addressing community member membership to a new subdivision. The comment period for
the proposed modifications ended on October 8, 2019. A true and correct copy of the second 15-Day
Notice, Proposed Regulations and Statement of Reasons is attached hereto as Exhibit 3.

11. Notwithstanding the public oral and written comments opposing the adoption of these
regulations, the regulations were adopted by Respondents and submitted to the Office of Administrative
Law (“OAL”) on or about November 13, 2019. A true and correct copy of the adopted regulations are
attached hereto as Exhibit 4. The Proposed Regulations were approved by OAL on December 24, 2019.
A true and correct copy of the California Regulatory Notice dated December 24, 2019 is attached hereto
as Exhibit 5. The effective date of the adopted regulations is April 1, 2020.

12. Under the provisions of the regulations, RPACs are to solicit nominations for RPAC
membership after May 1 and before August 1 of each year and hold new elections at their first meeting
after September 1 of each year. Asa result, parent and community members currently serving on RPACs
around the state, including Plaintiff/Petitioner, will be removed from their RPAC seats and become
ineligible to be nominated or elected by migrant parents in their region or district.

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THE PARTIES

13. Plaintiff/Petitioner Milagros Azucena Wendz is currently a member of the RPAC for
Region 6. She was elected by the parents of the Region 6 parent advisory committee to serve on the
RPAC in Fall of 2016. She is a parent of a currently migratory child as defined in Education Code
section 54441, subdivision (a) and meets the criteria for nomination and election to the RPAC
established by Region 6. She has served 4 years as a RPAC parent representative and will, therefore be
disqualified from being nominated or elected to the RPAC if the new regulations are allowed to go into
effect.

14. The Region 6 RPAC is currently composed of more than 15 members, including a parent
representative from each of the school districts within the region. Most RPAC parent representatives
have an alternate member who actively participates in the RPAC meetings. Additionally, the Region 6
RPAC has one community member, who was nominated by the migrant parents in the Region, is not an
educator or employed by an operating agency, and has served more than eight years on the RPAC.

15. Respondent/Defendant Tony Thurmond is the State Superintendent of Public Instruction
for the State of California and is a Constitutional Officer in charge of supervision of all California
schools and school districts. In such capacity, the SSPI is obligated to take all necessary steps to ensure
that the State and local school districts comply with state and federal law requirements concerning
educational services. Pursuant to California Education Code sections 33301 through 33303, the SSPI is
also Director of Education in whom all executive and administrative functions of the California
Department of Education are vested, and he is the Executive Officer for the State Board of Education.
He is sued in his official capacity.

16. Respondent/Defendant California Department of Education (“CDE”) is the department
of state government responsible for administering and enforcing laws related to education pursuant to
California Education Code section 33308.

17. Respondents/Defendants DOES 1 through 30 are sued herein under fictitious names, their
true names and capacities being presently unknown to Petitioners. When such true names and capacities
are ascertained, Petitioners, after obtaining leave of Court if necessary, will amend this Petition and

Complaint by inserting their true names and capacities.

 

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VENUE AND JURISDICTION
18. Plaintiff/Petitioner’s claims arise under California law and occurred in the State of
California. Pursuant to California Code of Civil Procedure section 401, when an action or proceeding
is commenced against a state agency, it may be commenced and tried in any city and county in which
the Attorney General has an office. The Attorney General has an office in San Francisco, San Francisco
County. Venue is proper under Code of Civil Procedure sections 395 and 401.

FIRST CAUSE OF ACTION
VIOLATION OF ADMINISTRATIVE PROCEDURES ACT SECTIONS 11340, ET SEQ.
(Declaratory Relief, Gov. Code § 11350)

19. Plaintiff/Petitioner incorporates paragraphs 1 through 18 as if fully set forth here.

20. As State agencies engaged in the adoption, amendment, or repeal of administrative
regulations, the California Department of Education and the State Superintendent of Public Instruction
must comply with the requirements of the Administrative Procedures Act (“APA”). (Gov. Code §§
11340, et seg.)

21. The RPAC regulations submitted to and approved by the Office of Administrative Law
fail to substantially comply with the requirements of the APA and Plaintiff/Petitioner is, therefore,
entitled to declaratory relief pursuant California Government Code section 11350, subdivision (a).

22. Various sections of the adopted RPAC regulations are beyond the scope of the authority
granted to the SSPI and CDE by the California Legislature. Under the APA, each regulation adopted
must be within the scope of authority conferred on the state agency adopting the regulations. (Gov.
Code, § 11342.1.) Additionally, an agency’s power to issue regulations is limited by the express
statutory language of the statute it is enforcing or administering. “[N]o regulation adopted is valid or
effective unless consistent and not in conflict with the statute and reasonably necessary to effectuate the
purpose of the statute.” (Gov. Code, § 11342.2.)

23. Only one statute extends limited authority to the SSPI to issue regulations concerning the
Migrant Education Program:

The Superintendent shall adopt rules and regulations requiring each operating agency
receiving migrant education funds or services to actively solicit parental involvement in
the planning, operation, and evaluation of its programs through the establishment of,
and consultation with, a parent advisory council. (Ed. Code, § 54444.2, subd. (a)(1).)

 

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24. Operating agency is defined under the Education Code as “a local educational agency
operating under a subgrant of state migrant education funding, or a public or private nonprofit agency
under a special arrangement with the department to carry out a migrant education program.” (Ed. Code,
§ 54441, subd. (e).)

25. California Education Code section 54444.2, subdivision (a)(1)(A) provides that “[t]he
membership of each parent advisory council shall be composed of members who are knowledgeable of
the needs of migrant children and shall be elected by the parents of migrant children enrolled in the
operating agency’s programs. The composition of the council shall be determined by the parents at
a general meeting to which all parents of pupils enrolled in the migrant program shall be invited. Parents
shall be informed, in a language they understand, that the parents have the sole authority to decide
on the composition of the council. . .”. (Emphasis added.)

26. California Code of Regulations, title 5, sections 12010, 12011, 12012, 12013(a)(2)
12013(a)(3), 12013(a)(7), 12013(b), 12014, 12015, 12016(c), 12017 and 12019 place invalid restrictions
on the criteria for membership, the composition of and the manner by which the Regional Parent
Advisory Council members are nominated or elected, and the obligations of operating agencies to
provide interpretation. The following regulations, scheduled to go into effect on April 1, 2020, expressly
conflict with the statutory mandate in California Education Code section 54444.2, subdivision (a)(1)(A)
and exceed the authority of the Defendants/Respondents granted to them by the California Legislature
in California Education Code section 54444.2, subdivision (a)(1) by substituting the judgment of the
SSPI or CDE for that of the parent members of the RPACs:

a. California Code of Regulations, title 5, section 12010, subdivision (a) defines “Eligible
parent” in a manner that unlawfully imposes term limits on otherwise eligible parents of
migrant students and unlawfully interferes with migrant parents’ sole authority to decide
on the composition of the RPAC as provided in California Education Code section
54444.2, subdivision (a)(1)(A).

b. California Code of Regulations, title 5, section 12010, subdivision (b)(1) defines
“Eligible community member” in a manner that unlawfully requires that such person is

either “an eligible migrant child or professional working in the field of education and

 

 

 

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social and health services” which unlawfully disqualifies non-professionals including
parents who were formally migrant farmworkers, and excludes non-professionals and
professionals “who are knowledgeable of the needs of migrant children” and otherwise
eligible for election as provided in California Education Code section 54444.2,
subdivision (a)(1)(A), but are not working in the field of education and social and health
services.

California Code of Regulations, title 5, section 12010, subdivision (b)(4) defines
“Eligible community member” in a manner that unlawfully imposes term limits on
otherwise eligible community members, as defined by California Education Code section
54444.2, subdivision (a)(1)(A).

California Code of Regulations, title 5, sectionl12011 unlawfully denies migrant parents
the right to determine the composition of the RPAC as it unlawfully limits the number of
parent members and prohibits the election of alternate members (§ 1201 1(a)); unlawfully
limits the number of community members who may serve on the RPAC (§ 12011(a));
unlawfully requires that community members be from operating agencies and direct
funded districts (§ 12011(b)); and denies voting rights to community members duly
elected to the RPAC by migrant parents (§ 12011(d)).

California Code of Regulations, title 5, section 12012 unlawfully denies migrant parents
the right to determine the composition of the RPAC as it unlawfully limits who migrant
parents may nominate for election to the RPAC.

California Code of Regulations, title 5, section!]2013, subdivision (a)(2) unlawfully
denies migrant parents the right to determine the composition of the RPAC as it
unlawfully prohibits migrant parents from nominating other community members who
are not from an operating agency or direct funded district, and unlawfully limits the
number of individuals who migrant parents may nominate for election to the RPAC as a
community member.

California Code of Regulations, title 5, section 12013, subdivision (a)(3) unlawfully

denies migrant parents the right to determine the composition of the RPAC as it

 

 

 

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unlawfully limits the qualifications of individuals who migrant parents may nominate for
election to the RPAC as a community member.

h. California Code of Regulations, title 5, section 12013, subdivision (a)(7) unlawfully
denies migrant parents the right to determine the composition of the RPAC as it
unlawfully grants the operating agencies the right to qualify or disqualify individuals who
migrant parents may nominate for election to the RPAC as a community member.

i, California Code of Regulations, title 5, section 12013, subdivision (b) unlawfully denies
migrant parents the right to determine the composition of the RPAC as it unlawfully
limits the number of individuals who migrant parents may elect to the RPAC as a
community member.

j California Code of Regulations, title 5, section 12014 unlawfully denies migrant parents
the right to determine the composition of the RPAC as it unlawfully imposes term limits
on eligible parent members (§ 12014(a)), and on community members (§ 12014(b));
imposes residence requirements on eligible parent members that are inconsistent with the
purpose of the Migrant Education Program and the state and federal definitions of parents
of migratory children (§ 12014(c)); and prohibits former parent members from serving
as a community member, and prohibits former community members from serving as
parent members.

k. California Code of Regulations, title 5, section 12015 unlawfully denies migrant parents
the right to determine the composition of the RPAC as it unlawfully gives authority to
the County Superintendent to terminate a member from the RPAC and prohibits the
RPAC from terminating, expelling or suspending any of its members (§ 12014(e)).

lL California Code of Regulations, title 5, section 12016, subdivision (c) unlawfully denies
migrant parents the right to determine the composition of the RPAC as it unlawfully
imposes term limits on individuals elected by special election to fill a vacant position on
the RPAC.

m. California Code of Regulations, title 5, section 12017 unlawfully prescribes the manner

by which the RPAC will govern itself, and unlawfully establishes a five-member Round

 

 

 

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Table with the sole responsibility for meeting and discussing “any other matter
concerning the region” (12017(j).

n California Code of Regulations, title 5, section 12019, subdivision (d) unlawfully limits
the obligation of operating agencies to provide interpretation only “to the extent possible”
as it contradicts the express requirements contained in the Education Code, including the
section 54444.2, subdivision (a) which provides that “Parents shall be informed, in a
language they understand, that the parents have the sole authority to decide on the
composition of the council” (Emphasis added.); and 20 U.S.C. section 6394 subdivision
(c)(3)(B) which provides that migrant programs and projects are carried out in
consultation with migrant parents and “in a format and language understandable to the
parents.”

27. California Code of Regulations, title 5, section 12011, subdivision (a) violates the
Administrative Procedures Act in that it is a substantial, new provision, added after the initial comment
period that included a substantive change that creates a new and distinct limit on the composition of the
RPAC by eliminating the ability of migrant parents to include alternate members as part of the
composition of their RPAC.

28. The APA at California Government Code section 11346.8, subdivision (c) provides that:

No state agency may adopt, amend, or repeal a regulation which has been changed from
that which was originally made available to the public pursuant to Section 11346.5,
unless the change is (1) nonsubstantial or solely grammatical in nature, or (2)
sufficiently related to the original text that the public was adequately placed on notice
that the change could result from the originally proposed regulatory action. . .

The original Proposed Regulations noticed on November 30, 2018 did not address the election of
alternate members. The public was not placed on notice that such a restriction would be placed on
membership when the initial regulations were published, and were then denied notice that a substantive
change was being proposed and provided with only a 15-day period to comment on the substantially
new regulation. Adding new substantive provisions in California Code of Regulations, title 5, section
12011, subdivision (a) after the initial comment period violates California Government Code section
11346.8, subdivision (c) and is, therefore, invalid.

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29.  Defendants/Respondents SSPI and CDE failed to comply with the notice requirements
of the Administrative Procedures Act by failing to describe reasonable alternatives to the regulation in
its initial notice, in violation of California Government Code section 11346.2, subdivision (b)(4)(A),
failing to comply with California Government Code section 11346.5, subdivision (a)(6), and failing to
provide an estimate of costs or savings prepared in accordance with Department of Finance Instructions.

30. Title 5, Cal. Code of Regs. §§ §§ 12010, 12011, 12012, 12013(a)(2) 12013(a)(3),
12013(a)(7), 12013(b), 12014, 12015, 12016(c), 12017 and 12019 are invalid because
Defendants’/Respondents’ determination that the regulations are reasonably necessary to effectuate the
purpose of the Migrant Education Act is not supported by substantial evidence.

31. California Code of Regulations, title 5, sections 12010, 12011, 12012, 12013(a)(2)
12013(a)(3), 12013(a)(7), 12013(b), 12014, 12015, 12016(c), 12017 and 12019 are invalid because
Defendants’/Respondents’ determination that the regulations are reasonably necessary to effectuate the
purpose of the Migrant Education Act is in conflict with substantial evidence in the record.

32. A judicial declaration is necessary to clarify whether Defendants’/Respondents’
development and adoption of the regulations fully and completely satisfies the legal requirements of the
APA and state and federal regulations regarding the Migrant Education Program.

33. A judicial declaration is appropriate because the regulations have not yet been enforced
and will allow the parties and the public to be informed as to whether the promulgation of the regulations
was lawful. :

SECOND CAUSE OF ACTION
WRIT OF MANDATE
(Code Civ. Proc. § 1085)

34,  Plaintiff/Petitioner incorporates paragraphs | through 33 as if fully set forth here.

35.  Plaintiff/Petitioner is entitled to a writ of mandate under California Code of Civil
Procedure section 1085 in that the State Superintendent of Public Instruction and the California
Department of Education have a clear, present, and ministerial duty to comply with and enforce state
and federal laws concerning implementation of California’s Migrant Education Program.

36.  Respondents/Defendants have failed to comply with those mandatory duties by

proposing and causing to be adopted regulations that directly conflict with California Education Code

 

 

 

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section 54444.2, subdivision (a)(1)(A) which vests migrant parents with the authority to nominate and
elect the members of the Regional Parent Advisory Councils. California Education Code section
54444.2, subdivision (a)(1)(A) provides that the migrant parents shall have the “sole authority” to
determine the composition of the advisory committees. Neither the Superintendent nor CDE has the
power to control the terms or qualifications of the parents or community members selected by the
RPACs.

37.  Respondents/Defendants have failed to comply with their mandatory duties by proposing
and causing to be adopted regulations that fail to comply with the federal law that requires the state
annually evaluate its Migrant Education Program to identify barriers to greater parent participation and
design strategies for more effective parent involvement. (20 U.S.C. § 6318(a)(2)(E).) Contrary to the
stated purpose of the regulations, California Code of Regulations, title 5, sections12010, et seg. restrict
parent participation by imposing term limits, (§§ 12010(a)(1) and 12014(a)); prohibiting alternate
council members (§§ 1201 1(a) and 12014(c)); and imposing residence requirements that are inconsistent
with parents’ status as “migratory.” (§ 12014(c).)

38. | Defendants/Respondents have abused their discretion and acted in an arbitrary and
capricious manner to the detriment of Plaintiff/Petitioner by adopting regulations that are inconsistent
with federal and state laws as alleged herein.

39.  Plaintiff/Petitioner has no administrative remedy available to her to resolve this
controversy.

40. __ Plaintiff/Petitioner has no plain, speedy, or adequate remedy at law other than the relief
requested in this petition.

41. Asamember of a Regional Parent Advisory Council and parent of migrant children with
a right to appoint her their own representatives, including community members, to advisory councils,
Plaintiff/Petitioner has a beneficial interest in the performance by Defendants/Respondents of their
duties to propose and adopt regulations that comply with state and federal laws for the provision of
services to migrant children.

42.  Plaintiff’/Petitioner’ success in this action will result in the enforcement of important

rights affecting the general public by conferring significant benefits on a large class of persons.

 

 

 

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Plaintiff/Petitioner seeks enforcement of rights not only for herself, but for all parents of migrant

students who will benefit from the relief sought by this Complaint.

43. Private enforcement of these rights is necessary, as no other agency has pursued these
rights.

THIRD CAUSE OF ACTION
(Injunctive Relief Cal. Code of Civ. Proc. § 226)

44,  Plaintiff/Petitioner incorporates paragraphs 1 through 43 as if fully set forth here.

45.  Plaintiff/Petitioner is entitled to injunctive relief to prevent the enforcement of the
regulations at Title 5, Cal. Code of Regs. §§ 12010, et seq.

46.  Plaintiff/Petitioner is informed and believes that Defendants/Respondents intend to
require Regional Parent Advisory Councils to begin the nomination and election process beginning May
1, 2020 pursuant to the newly adopted Regulations regarding term limits. As a result, current Regional
Parent Advisory Council members, including Plaintiff/Petitioner Wendz, will suffer great and
irreparable harm if the Regulations are allowed to go into effect and be implemented as approved as the
term limits will apply to her and make her ineligible to be nominated or elected to the RPAC for Region
6 in the next cycle of nominations and elections, which is to commence on May 1, 2020, as provided in
California Code of Regulations, title 5, section 12013.

47. | Migrant parents generally will suffer irreparable harm by being prevented from
nominating and electing their own parent and community member candidates to represent their interests
on the RPACs.

48. Plaintiff/Petitioner and members of the public generally will suffer great and irreparable
harm if the Regulations are allowed to go into effect and be implemented as approved in the absence of
compliance with the APA and state and federal law governing the Migrant Education Program.
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ATTORNEYS FEES AND COSTS

49. The rights of migrant parents to participate in parent advisory councils and provide
advice to administrators of Migrant Education Programs is an important right affecting the public
interest. Success on one or more of the causes of action and requests for relief in this action will confer
a significant benefit on migrant parents and their children by promoting effective parental participation
in the development and implementation of Migrant Education Programs. The private enforcement of
these rights is necessary and imposes a financial burden of private enforcement justifies an award of
attorneys’ fees. Therefore, Plaintiff/Petitioner seeks an award of reasonable fees pursuant to Cal. Code

Civ. Proc. § 1021.5.

 

 

 

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PRAYER FOR RELIEF
WHEREFORE, Plaintiff/Petitioner prays that this Court:
1. Issue a declaratory judgment that:
a. The regulations published as Title 5, Cal. Code of Regs. § 12010, et seg. violate
the Administrative Procedures Act (Cal. Gov. Code § 11350, et seq.) and are

therefore invalid;

b. Defendants/Respondents have no legal authority to enforce the Regulations; and
c. Plaintiff/Petitioner has no legal duty to comply with the Regulations.
2. Issue a peremptory writ of mandate commanding that Defendants/Respondents, upon service of
the writ:
a. Immediately take all steps necessary to comply with state and federal regulations
concerning the implementation of the California Migrant Education Program;
b. Refrain from implementing the regulations published as Title 5, Cal. Code of
Regs. § 12010, et seq.
3. For a preliminary injunction enjoining Defendants/Respondents from enforcing or attempting to

enforce the Regulations against Plaintiff/Petitioner or any other member of the general public, pending
judgment in this action, and for a final injunction permanently enjoining Defendants/Respondents from

enforcing the Regulations;

4, Award costs of suit herein incurred;
5. Award reasonable attorneys’ fees as provided in Cal. Code Civ. Proc. § 1021.5; and
6. For such other and further relief as the court may deem proper.
Dated: March 25, 2020 CALIFORNIA RURAL LEGAL ASSISTANCE, INC.
py: Atle. CHER,

JEYNTHIA L. RICE
© Attorney for Plaintiff/Petitioner

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS

DEBORAH ESCOBEDO
Attorney for Plaintiff/Petitioner

 

 

 

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VERIFICATION

I, Cynthia L. Rice, declare that | am attorney for Plaintiff/Petitioner Azucena Wendz. My office
is located in Oakland, California, in the county of Alameda and outside of the county that my client and
the Respondent/Defendants reside or are located. The facts in this petition and complaint are within my
knowledge and belief based upon my review of public records and other information. Plaintiff/Petitioner
has no direct knowledge upon which to verify the facts in the petition/complaint that were derived from
those records and information.

I declare under penalty of perjury under the laws of the State of California that I have read the
foregoing Petition for Writ of Mandate and Complaint for Declaratory Relief and Injunctive Relief
believe the matters to be true and based on that belief allege that the matters stated therein are true.

Executed this 25" day of March 2020 in Albany, California.

har. CKO
y Cynthia L. Rice

 

Petition for Writ of Mandate 18
and Complaint for Declaratory and Injunctive ReliefEXHIBIT 1AMENDMENTS TO THE CALIFORNIA CODE OF REGULATIONS, TITLE 5
REGARDING THE MIGRANT EDUCATION PROGRAM

REGIONAL Parent Advisory Council
Notice Published November 30, 2018

NOTICE IS HEREBY GIVEN that the State Superintendent of Public Instruction (SSPI)
proposes to adopt the regulations described below after considering all comments,
objections, or recommendations regarding the proposed action.

PUBLIC HEARING

Califomia Department of Education (CDE) staff, on behalf of the SSPI, will hold a public
hearing at 1:30 p.m. on January 14, 2019 at 1430 N Street, Room 1801, Sacramento,
California. The room is wheelchair accessible. At the hearing, any person may present
statements or arguments, orally or in writing, relevant to.the proposed action described
in the Informative Digest. The SSPI requests, but does not require, that persons who
make oral comments at the hearing also submit a written summary of their statements.
No oral statements will be accepted subsequent to this public hearing.

WRITTEN COMMENT PERIOD

Any interested person, or his or her authorized representative, may submit written
comments relevant to the proposed regulatory action to:

Patricia Alverson, Regulations Coordinator
Administrative Support and Regulations Adoption
California Department of Education
1430 N Street, Room 5319
Sacramento, CA 95814

Comments may also be submitted by facsimile (FAX) at 916-319-0155 or by e-mail to
regcomments@cde.ca-gov. Comments must be received by the Regulations
Coordinator by 5:00 p.m. on January. 14, 2019. All written comments received by CDE
Staff during the public comment period are subject to disclosure under the Public

Records Act.

AVAILABILITY OF CHANGED OR MODIFIED TEXT ©

Following the public hearing and considering all timely and relevant comments received,
the SSPI may adopt the proposed regulations substantially as described in this Notice
or may modify the proposed regulations if the modifications are sufficiently related to the
original text.

With the exception of technical or grammatical changes, the full text of any modified
regulation will be available for 15 days prior to its adoption from the RegulationsMigrant Education Program - RPAC:
November 30, 2018
Page 2

Coordinator and will be mailed to those persons who submit written comments related
to this regulation, or who provide oral testimony at the public hearing, or who have
requested notification of any changes to the proposal.

AUTHORITY AND REFERENCE

Authority: Sections 54444.2, Education Code.
Reference: Sections 54441, 54444.1, and 54444.2, Education Code; and 20
U.S.C. Section 6399.

INFORMATIVE DIGEST/POLICY STATEMENT OVERVIEW

In 1973, the Migrant Education Program (MEP) was established in California through
the enactment of Assembly Bill (AB) 1062. This legislation was subsequently amended
by AB 1825 of 1975 and AB 1382 of 1981. The latter is codified in Education Code (EC)
Section 54445 and contains statutory language which authorizes the adoption of rules
and regulations necessary to implement the provisions of the program.

The purpose of the MEP is: 1) to support high-quality and comprehensive educational
programs and services during the school year and, as applicable, during summer or
intersession periods, that address the unique needs of migratory children; 2) to ensure
that migratory children are not penalized in any manner by disparities in curriculum,
graduation requirements, and challenging academic standards; 3) to ensure that
migratory children receive full and appropriate opportunities to meet the same
challenging academic standards that all children are.expected to meet; 4) to assist
migratory children who drop out of school, have cultural and language barriers, social
isolation, various health-related problems, and other factors that inhibit the ability of
such children to succeed; and 5) to help migratory children benefit from State and local
systemic reforms.

In 2014, California Code of Regulations, title 5 (6 CCR), sections 12030-12044 were.
adopted governing the establishment and operation of the Statewide Parent Advisory
Council (SPAC). The benefit of these regulations has been to promote the orderly,
efficient, and fiscally prudent operation of the SPAC, ensuring the satisfaction of the
council's obligations under state and federal law. Additionally, these regulations are
designed to promote openness and ensure transparency, as well as maximize the
participation of parents of migrant children in providing advice to the SSPI.

EC Section 54444.2 (a) requires the SSPI to take all necessary steps to ensure
effective parental involvement throughout the state MEP, including the adoption of rules
and regulations requiring all operating agencies receiving migrant education funds to
solicit parental involvement through the establishment of and consultation with a parentMigrant Education Program - RPAC
November 30, 2018
Page 3

advisory council, at least two-thirds of the members of which are parents of migrant.
children.

The. successful outcome of implementation of the regulations goveming the SPAC has
served to’ highlight the challenges which surface in the. maximization of parent
engagement and the efficiency in meeting statutory obligations of Regional Parent
Advisory Councils (RPACs).

The benefit of these regulations is to promote the orderly and efficierit operation of the
RPACs throughout the State. These regulations will address and rectify the areas where
the RPACs may face challenges in meeting their obligations under state and federal
law: Additionally, these regulations.are designed to promote openness and ensure
transparency, as well-as maximize the participation of parents of migrant children in
providing advice to the regional Migrant Education directors.

The CDE. reviewed all state regulations relating to the MEP and found that none exist

that are inconsistent or incompatible with these regulations regarding the operation of
the migrant regional parent advisory councils.

DISCLOSURES REGARDING THE PROPOSED REGULATION/FISCAL IMPACT

The SBE has made. the following initial determinations:

There are.no other matters as are prescribed by statute applicable to the specific st