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1 Nicole Pifari, SBN 297031
RAINS LUCIA STERN ST. PHALLE & SILVER, PC
2 220 Montgomery Street, 15th Floor
San Francisco, CA 94104 ELECTRONICALLY
3
Tel: (415) 341-9341 FILED
Fax: (925) 609-1690 Superior Court of California,
4 County of San Francisco
Email: NPifari@RLSlawyers.com
5 08/18/2023
Clerk of the Court
Attorneys for Petitioners BY: EDWARD SANTOS
6 ANNESA FLENTJE, REX RIDGEWAY, Deputy Clerk
7 OXANA GIGI, MOIRA DOWELL,
FRIENDS OF LOWELL FOUNDATION, AND
8 ASIAN AMERICAN LEGAL FOUNDATION
9
SUPERIOR COURT OF THE STATE OF CALIFORNIA
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11 IN AND FOR THE COUNTY OF SAN FRANCISCO
12
ANNESA FLENTJE; REX RIDGEWAY; CASE NO. CPF-23-517987
13 OXANA GIGI; MOIRA DOWELL;
FRIENDS OF LOWELL FOUNDATION; AND PETITIONERS’ OPPOSITION TO
14
ASIAN AMERICAN LEGAL FOUNDATION, RESPONDENT’S DEMURRER TO
15 FIRST AMENDED VERIFIED
Petitioners, PETITION FOR WRIT OF MANDATE
16 v. AND COMPLAINT FOR PERMANENT
INJUNCTION AND DECLARATORY
17 SAN FRANCISCO UNIFIED SCHOOL RELIEF
DISTRICT,
18
Hearing: August 31, 2023
19 Respondent. Time: 9:30 a.m.
Dept: 302
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Complaint Filed: March 30, 2023
21 FAC Filed: July 25, 2023
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Trial: None Set
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 TABLE OF CONTENTS
2 I. INTRODUCTION............................................................................................................ 1
3 II. STANDARD OF REVIEW ............................................................................................. 2
4
III. LEGAL ARGUMENT ..................................................................................................... 2
5
A. Because Primary Authority in Public Education Is Vested in the Legislature, the
6 District’s Generally Broad Discretion to Administer Its Own Programs Tailored
to the Unique Needs of Its Communities May Be Limited by the Prescriptions
7 Set Forth in Education Code Sections 51224.5 and 51228.2 ................................ 2
8 B. Petitioners and Plaintiffs Have Alleged a Cause of Action for Writ of Mandate
Under Education Code Section 51224.5 ............................................................... 6
9
10 1. Section 51224.5 (c) Creates a Mandatory, Non-Discretionary Duty to
Exempt Pupils from Taking a High School Course in Algebra 1 or
11 Mathematics 1 Where, Prior to Enrolling in 9th grade, the Pupil Took a
Mathematics Course of Equal Rigor to Algebra I or Mathematics I That
12 Is “Aligned to the Content Standards Adopted by the State Board” ........ 7
13 2. A District Is Not Vested with Discretion to Reject a Pre-9th Grade
14 Mathematics Course So Long as It Is of Equal Rigor to Algebra 1 or
Mathematics 1 and Aligns with Content Standards Adopted by the State
15 Board ......................................................................................................... 9
16 a. Even if the district is vested with discretion to determine a pre-
9th grade course does not meet the requirements of subdivision
17 (c) of section 51224.5, mandate lies to correct an abuse of that
discretion and petitioners should be given leave to amend to
18
allege such. .................................................................................. 10
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3. Subdivision (A) of Section 51224.5 Requires the District to Offer
20 Algebra I as Early as 7th Grade ............................................................... 11
21 C. The Petition and Complaint State a Cause of Action for Writ of Mandate as to
Education Code Section 51228.2 ........................................................................ 12
22
23 V. CONCLUSION .............................................................................................................. 15
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 TABLE OF AUTHORITIES
2 Cases
3 Brennon B. v. Superior Court (W. Contra Costa Unif. Sch. Dist.) (2022) 13 Cal.5th 662........... 3
4 Brown v. Smith (2018) 24 Cal.App.5th 1135, 1141 ...................................................................... 2
5 Butts v. Bd. of Trustess of Cal. St. Univ. (2014) 225 Cal.App.4th 825, 940 ........................... 9, 14
6 Cal. Assn. of Private Sp. Educ. Schools v. Dept. of Educ. (2006) 141 Cal.App.4th 360, 368...... 2
7 Cal. Sch. Emp. Assn. v. Governing Bd. (1994) 8 Cal.4th 333, 340 .............................................. 8
8 Cal. School Bds. Assn. v. State Bd. of Educ. (2010) 186 Cal.App.4th 1298, 1320....................... 2
9 California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th
10 627, 633..................................................................................................................................... 5
11 Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 26
12 Cal.App.5th 689, 698 .............................................................................................................. 12
13 City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 868 .................................................. 7
14 City of Oakland v. Oakland Sch. Dist. (1956) 138 Cal.App.2d 406, 409 ..................................... 4
15 City of Torrance v. Southern Calif. Edison (2021) 61 Cal.App.5th 1071, 1091 ........................ 15
16 Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1017 ....................... 4
17 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 ................. 5
18 Facebook, Inc. v. Duguid (2021) 141 S.Ct.1163, 1169 .............................................................. 13
19 Hartzell v. Connell (1984) 35 Cal.3d 899, 915 ............................................................................. 4
20 Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390 ......................................... 3
21 Jackson v. Gourley (2003) 105 Cal.App.4th 966, 972-973 ........................................................ 10
22 Love v. State Dept. of Educ. (2018) 29 Cal.App.5th 980, 988 .......................................... 2, 11, 15
23 Manderson-Saleh v. Regents of Univ. of Cal. (2021) 60 Cal.App.5th 674, 692 ......................... 11
24 People v. Gutierrez (2014) 58 Cal.4th 1354, 1369 ....................................................................... 5
25 Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-502 ................................................................ 7
26 San Rafael Elementary Sch. Dist. v. State Bd. of Educ. (1999) 73 Cal.App.4th 1018, 1027 ....... 4
27 Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 540 ................ 7, 10
28 Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 495 ........................... 7
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955 ................................ 3
2 Switzer v. Wood (2019) 35 Cal.App.5th 116, 128-129 ................................................................. 8
3 Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7 ......................... 10
4 Statutes
5 California Code of Civil Procedure section 1085 ..................................................................... 2, 7
6 California Education Code section 201 .................................................................................... 1, 2
7 California Education Code section 35160……………………………………………….…4, 5, 9
8 California Education Code section 35160.1 ......................................................................... 3, 4, 8
9 California Education Code section 35160.1(a) ............................................................................. 3
10 California Education Code section 51220 .............................................................................. 6, 11
11 California Education Code section 51224.5 ......................................... 1, 2, 4, 5, 6, 7, 8, 9, 10, 11
12 California Education Code section 51224.5(c) ................................................................... 8, 9, 10
13 California Education Code section 51224.5 (c)-(d) .................................................................... 10
14 California Education Code section 51224.7 ........................................................... 1, 5, 10, 11, 14
15 California Education Code section 51225.3(b)(1)(B)................................................................... 9
16 California Education Code section 51228.2 ............................................... 1, 2, 4, 5, 8, 12, 13, 14
17 California Education Code section 51228.2 (a) .......................................................................... 13
18 California Education Code section 60002 ................................................................................ 4, 8
19 California Education Code section 60003 ................................................................................ 4, 8
20 Other Authorities
21 93 Ops.Cal.Atty.Gen. 63 (2010); 2010 Cal. AG Lexis 14, *8 ...................................................... 4
22 Sen. Bill No. 359 (2015-2016 Regular Session) ........................................................................... 6
23 Constitutional Provisions
24 California Constitution, Article IX, Section 14 ............................................................................ 3
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 I. INTRODUCTION
2 Respondent San Francisco Unified School District (“SFUSD” or the “District”) digs in
3 its heels on policies and practices that impermissibly deprive students of educational growth
4 and opportunity commensurate with their abilities and efforts. The District appears to
5 characterize these students as opportunistic, and engages in practices having disproportionate
6 effects on socially-disadvantaged students, and in particular black and Hispanic students,
7 making it difficult for them to access upper-level math courses. The District leans heavily on
8 the “permissive” Education Code, 1 suggesting unfettered discretion to select and implement its
9 instructional mission. However, it may only do so to the extent such programs and activities
10 “are not in conflict with, or preempted by, any law.” The statutes at issue here are a Legislative
11 curtailment of such local discretion.
12 The District demurs only to the first (§ 51224.5), third (§ 51228.2) and fourth (§ 201)
13 causes of action. It extensively discussed legislative history for sections 51224.5 and 51228.2,
14 but failed to mention that both were last amended in 2015 within weeks of passage of the Math
15 Placement Act (“MPA”). The MPA at § 51224.7 is central to Petitioners’ second cause of
16 action. Notably, the District does not demur to it. Because sections 51224.5 and 51228.2 were
17 amended contemporaneously with unanimous passage of Math Placement Act, the Court must
18 consider this backdrop when harmonizing the at-issue statutes. The District’s claim to
19 unfettered discretion under the aegis of the permissiveness of the Education Code is
20 unwarranted under the plain language of these statutes and their purpose, as a matter of
21 statewide uniformity set forth in the California Department of Education’s mission to empower
22 our children to “attain the highest level of academic knowledge...,” to “cause a high standard of
23 student accomplishment…,” and to ensure “that a small number of exceptional needs students
24 must be expected, challenged, and assisted to achieve at an individually determined and
25 appropriately high level.”
26 ///
27
28 1
Unless otherwise noted, all statutory references are to the Education Code.
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 II. STANDARD OF REVIEW
2 The standard of review for a demurrer is well-settled. A demurrer tests the legal
3 sufficiency of the complaint, and, giving the complaint a reasonable interpretation, the court
4 accepts as true all material facts alleged in the complaint and properly pleaded. (Love v. State
5 Dept. of Educ. (2018) 29 Cal.App.5th 980, 988; Cal. Assn. of Private Sp. Educ. Schools v.
6 Dept. of Educ. (2006) 141 Cal.App.4th 360, 368.) The court may also consider matters that
7 may be judicial noticed. (Brown v. Smith (2018) 24 Cal.App.5th 1135, 1141.) When reviewing
8 the sufficiency of a complaint against a general demurrer, “it is long settled that ‘[t]he
9 complaint must be liberally construed and given a reasonable interpretation, with a view to
10 substantial justice between the parties.’[Citations.]” (Cal. School Bds. Assn. v. State Bd. of
11 Educ. (2010) 186 Cal.App.4th 1298, 1320.) Where there is a “reasonable possibility that [a]
12 defect can be cured by amendment,” a trial court abuses its discretion in sustaining a demurrer
13 without leave to amend. (Love, supra, 29 Cal.App.5th at p. 988 [internal quotations omitted].)
14 Moreover, because the petition seeks a writ of mandate under Code of Civil Procedure section
15 1085, independent review is required because the issues involve statutory construction and
16 whether the District’s actions are consistent with applicable law. (Cal. School Bds. Assn.,
17 supra, 186 Cal.App.4th at 1313-1314.)
18 III. LEGAL ARGUMENT
A. Because Primary Authority in Public Education Is Vested in the
19
Legislature, the District’s Generally Broad Discretion to Administer Its
20 Own Programs Tailored to the Unique Needs of Its Communities May Be
Limited by the Prescriptions Set Forth in Education Code Sections 51224.5
21 and 51228.2
22 Respondent’s Demurrer focuses on statutory construction of California Education Code
23 sections 51224.5, 51228.2, and to a lesser degree, section 201. 2 The rules of statutory
24 construction were recently summarized by the California Supreme Court in Brennon B. v.
25
26 2
Upon due consideration, Petitioners agree that Education Code section 201 does not impose a clear,
present, and ministerial duty independent of sections 51224.5 and 51228.2. That is not to say no cause
27 of action can be alleged as to a violation of section 201 if permitted to amend, but only that mandate
does not appear to lie independently by way of section 201 to compel the District to comply with the
28
terms of sections 51224.5 and 51228.2.
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 Superior Court (W. Contra Costa Unif. Sch. Dist.) (2022) 13 Cal.5th 662 (“Brennon B.”). The
2 court “examine[s] the statutory language, giving it a plain and commonsense meaning. . . If the
3 language is clear, courts must generally follow its plain meaning unless a literal interpretation
4 would result in absurd consequences the Legislature did not intend.” (Brennon B., supra, 13
5 Cal.5th at p. 674 [internal quotes omitted].) If, on the other hand, the statutory language
6 “permits more than one reasonable interpretation, courts may consider other aids” including
7 “legislative history, and public policy.” (Ibid.)
8 “Statutes must be interpreted, if possible, to give each word some operative effect [,]
9 [citation]” meaning the court should not “construe statutory provisions so as to render them
10 superfluous.[Citation.]” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390.)
11 Finally, it is incumbent upon courts to harmonize statutes based on their texts, if that can
12 reasonably be done: “A court must, where reasonably possible, harmonize statutes, reconcile
13 seeming inconsistencies in them, and construe them to give force and effect to all of their
14 provisions. [Citations.] This rule applies although one of the statutes involved deals generally
15 with a subject and another relates specifically to particular aspects of the subject.” [Citation.]
16 Thus, when “‘two codes are to be construed, they “must be regarded as blending into each other
17 and forming a single statute.” [Citation.] … [T]hey “must be read together and so construed as
18 to give effect, when possible, to all the provisions thereof.” (State Dept. of Public Health v.
19 Superior Court (2015) 60 Cal.4th 940, 955.)
20 The District devotes considerable space to its broad discretion, citing, among others,
21 what is commonly known as the “permissive Education code.” (Ed. Code § 35160.) Section
22 35160 provides in pertinent part that “the governing board of any school district may initiate
23 and carry on any program, activity, or may otherwise act in any manner which is not in conflict
24 with, or preempted by, any law and which is not in conflict with the purpose for which school
25 districts are established.” (§ 35160, implementing Cal. Const. art. IX, § 14.) As the District
26 correctly notes, the Legislature has declared that districts “have diverse needs unique to their
27 individual communities and programs” and thus “should have the flexibility to create their own
28 unique solutions.” (Educ. Section 35160.1(a).) The purpose of these statutes is to “establish that
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 the Education Code is a permissive body of law” and thus is it “not necessary to find express
2 authority in a particular statute for each and every action that a school district may wish to
3 take” so long as not in “conflict with, inconsistent with, or preempted by any law.” (93
4 Ops.Cal.Atty.Gen. 63 (2010); 2010 Cal. AG Lexis 14, *8.) Prior to the effective date of section
5 35160, local school districts possessed little, if any, power to act without express legislative or
6 administrative authorization. (See, e.g., City of Oakland v. Oakland Sch. Dist. (1956) 138
7 Cal.App.2d 406, 409.) Section 35160 simply “provides local districts with more flexibility” in
8 the absence of express authorization. (Hartzell v. Connell (1984) 35 Cal.3d 899, 915 (Hartzell.)
9 Consistent with this, the Legislature has provided that “because of economic, geographic,
10 physical, political, educational, and social diversity, specific choices about instruction materials
11 need to be made at the local level[.]” (Educ. Code section 60002.) School districts thus have
12 “broad powers to establish courses of study [and] the ability to choose instructional materials
13 which are appropriate to their courses of study.” (Educ. Code section 60003.)
14 However, the “flexibility provided by section 35160 is not without limits.” (Hartzell,
15 supra, 35 Cal. 3d at p. 915.) The District argues that “[s]ections 51224.5 and 51228.2 must be
16 understood in the context of the permissive Education Code and read as providing only “broad
17 minimum standards and guidelines.” (Demurrer, pp. 13-14.) The District gets it backwards.
18 Rather, “the generalized sentiment of [the permissive Education Code] is of no help in
19 determining how much, if any, flexibility the Legislature has provided under a specific
20 statutory scheme.” (San Rafael Elementary Sch. Dist. v. State Bd. of Educ. (1999) 73
21 Cal.App.4th 1018, 1027 (San Rafael.) (Emphasis added.) Because a district has flexibility only
22 to the extent it acts in a manner “not in conflict with or inconsistent with, or preempted by, any
23 law” (§ 35160), the meaning of the particular statute must first be “ascertained” prior to
24 applying the flexibility principles of sections 35160 and 35160.1. (San Rafael at p. 1027.)
25 Indeed, although it has “ceded substantial discretionary control” to local districts,
26 “primary authority over public education is vested in the Legislature[.]” (Dawson v. East Side
27 Union High School Dist. (1994) 28 Cal.App.4th 998, 1017.) (Emphasis added.) In exercising its
28
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 primary authority over public education, the Legislature enacted sections 51224.5 and 51228.2 3
2 and each of those statutes must be read in harmony with the Math Placement Act, as codified in
3 section 51224.7.
4 The Legislature exercises its primary authority over public education by passing laws,
5 and when there is debate about how to interpret those laws, we often examine the legislative
6 intent. The first step in ascertaining the Legislature’s intent is to scrutinize the words of the
7 statute, giving them a plain and commonsense meaning. (California Teachers Assn. v.
8 Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633) Although the words
9 of a statute are generally the most reliable indicator of legislative intent, if the words are
10 ambiguous or uncertain, we may resort to extrinsic sources to ascertain their meaning,
11 including the statute’s legislative history and ostensible objects to be achieved. (People v.
12 Gutierrez (2014) 58 Cal.4th 1354, 1369). We may also consider the wider historical
13 circumstances of a statute’s enactment in ascertaining legislative intent. (Dyna-Med, Inc. v.
14 Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.)
15 Although Respondents did not demurrer to causes of action based on § 51224.7 (the
16 Math Placement Act), it remains relevant here for the purposes of statutory construction that
17 the Act was enacted at nearly the exact same time as the two statutes that are the subject of this
18 demurrer. Section 51224.7 was enacted as a result of overwhelming and bipartisan support on
19 October 5, 2015. The most recent amendment to § 51228.2 was enacted four days later on
20 October 9, and the most recent amendment to § 51224.5 was enacted two months prior on
21 August 11, 2015. It is important to emphasize each of these amendments and the Act were
22 enacted within 8 weeks of each other, because SFUSD’s interpretation of the statutes relevant
23 to its demurrer is shockingly contrary to what our lawmakers declared when passing the Math
24 Placement Act, within weeks of also amending those statutes:
25 Misplacement in the sequence of mathematics courses creates a number of
26
3
The District cites to its Request for Judicial Notice, Exs. 7, 10, 11, and 12 as to the State Board of
27 Education’s adoption of California’s Mathematics Framework in 2013 and recent revisions, concerning
multiple course sequencing pathways district could adopt to cover algebra and other standards.
28
(Demurer p. 15.) However, none discusses the impact of Education Code section 51224.5.
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 barriers and results in pupils being less competitive for college admissions…The
most egregious examples of mathematics misplacement occur with successful
2 pupils…These successful pupils are achieving a grade of “B” or better, or are
3 testing at proficient or even advanced proficiency…[yet] are held back to repeat
[Algebra 1] 4 coursework rather than advancing…”
4 (Sen. Bill No. 359 (2015-2016 Reg. Sess.).)
5 Respondents hope the Court will keep in mind that in passing the Act, the legislature
6 sought to prevent the very thing that SFUSD now claims surrounding and related statutes grant
7 it “discretion” to do: misplace successful pupils into repetitive and redundant coursework
8 where they are prevented from advancing their education.
9 B. Petitioners and Plaintiffs Have Alleged a Cause of Action for Writ of
Mandate Under Education Code Section 51224.5
10
Section 51224.5 provides in pertinent part:
11
(a) The adopted course of study for grades 7 to 12, inclusive, shall include
12 algebra as part of the mathematics area of study pursuant to subdivision (f) of
Section 51220.
13 (b) Before receiving a diploma of graduation from high school, a pupil shall
complete at least one course, or a combination of the two courses required . . .
14
pursuant to subparagraph (B) of paragraph (1) of subdivision (1) of Section
15 51225.3, that meets or exceeds the rigor of Algebra I or Mathematics I, that is
aligned to the content standards adopted by the state board pursuant to
16 Sections 60605.8 and 60605.11.
17 (c) A pupil who, before enrollment in grade 9, completes a course in Algebra I or
Mathematics I, or mathematics courses of equal rigor, that is aligned to the
18 content standards adopted by the state board, is exempt from subdivision (b),
but is not exempt from the requirement that the public complete two courses
19 in mathematics while enrolled in grades 9 to 12, inclusive, as specified in
20 subparagraph (B) of paragraph (1) of subdivision (a) of Section 51225.3.
21 The District argues that section 51224.5(a) does not require it to offer Algebra 1 in 7th
22 or 8th grade (pp. 14-15) and that section 51224.5 does not require it to accept outside or non-
23 Algebra 1 courses taken before high school (Demmurer pp. 15-17), exempting students, as
24 required by subdivision (c), from taking the district’s own course offered in Algebra 1 or
25 Mathematics 1.
26 ///
27
4
The original language used in the Legislature’s 2015 declaration was “8th grade mathematics
28
coursework,” and 8th grade mathematics coursework in 2015 was Algebra 1.
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 1. Section 51224.5 (c) Creates a Mandatory, Non-Discretionary Duty to
Exempt Pupils from Taking a High School Course in Algebra 1 or
2 Mathematics 1 Where, Prior to Enrolling in 9th grade, the Pupil
3 Took a Mathematics Course of Equal Rigor to Algebra I or
Mathematics I That Is “Aligned to the Content Standards Adopted
4 by the State Board”
5 In order to obtain writ relief, a party must establish (1) a clear, present, and usually
6 ministerial duty on the part of the respondent; and (2) a clear, present and beneficial right in the
7 petition to the performance of that duty. (Cal. Civ. Proc. § 1085; City of Dinuba v. County of
8 Tulare (2007) 41 Cal.4th 859, 868.) Mandate is “available to compel a public agency’s
9 performance or correct an agency’s abuse of discretion” where the action to be corrected or
10 compelled is “ministerial” or “legislative.” (Santa Clara County Counsel Attys. Assn. v.
11 Woodside (1994) 7 Cal.4th 525, 540.) “’A ministerial duty is an act that a public officer is
12 obligated to perform in a prescribed manner required by law when a given state of facts exists.’
13 [Citations.]” (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 495
14 (Schmid).) “Discretion, on the other hand, is the power conferred on public functionaries to act
15 officially according to the dictates of their own judgment. [Citation.]” (Rodriguez v. Solis
16 (1991) 1 Cal.App.4th 495, 501-502 (Rodriguez).)
17 Here, the “given state of facts” at issue is found in subdivision (c) of section 51224.5,
18 and is straightforward. If, prior to enrolling in 9th grade a pupil “completes a course in” either
19 “Algebra 1 or Mathematics 1,” or the pupil “completes . . . a mathematical course of equal
20 rigor” to Algebra 1 or Mathematics 1, and that course is “aligned to the content standards
21 adopted by the state board,” then the pupil is exempt from subdivision (b)’s requirement of
22 taking the required math course offered by the high school that is equivalent to or exceeds the
23 rigors Algebra 1 or Mathematics 1 in order to graduate. Though not expressly alleged, each
24 pupil discussed in the First Amended Verified Petition is alleged to have “complete[d] . . . a
25 mathematical course of equal rigor” to Algebra 1 or Mathematics 1 and which is “aligned to the
26 content standards adopted by the state board.” (First Am. Pet., ¶¶ 49 [G.S. and K.S.], 50 [J.M.],
27 51 [K.G. and L.G.], and 52 [S.D.]. The First Amended Petition further alleges that K.S., J.M,
28 S.D., and K.O were “all required by SFUSD policy to retake Algebra 1 in the 9th grade, despite
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RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 having already taken the course or a course of equal rigor.” (First Am. Pet. ¶59.) Because these
2 conditions are met, the District has a ministerial duty to exempt these pupils from subdivision
3 (b)’s requirement they take high school Algebra 1 or Mathematics 1.
4 The District asserts no particular discretion or judgment necessary to determine whether
5 a “course [is] of equal rigor” or “aligned to the content standards adopted by the state board.”
6 (§ 51224.5(c).) While the “permissive” Education Code” (§ 35160) may give a district
7 flexibility to create its own solutions (35160.1), and at the “local level” broad discretion to
8 make “specific choices about instruction materials” that meet the prescribed rigor and content
9 alignment for its own courses (§§ 60002, 60003), that is not what subdivision (c) of section
10 51224.5 prescribes. Subdivision (c) exempts pupils from the requirements of subdivision (b) so
11 long as the course taken prior to 9th grade was rigorous enough and aligned with content
12 standards adopted by state board, and not whether the district would have used the same
13 instruction materials as the pre-9th grade course’s institution to achieve the rigor and
14 alignment.
15 The District argues there is nothing in the history “that supports any obligation of the
16 District to accept other math classes in lieu of its own Algebra I course.” This is non-sensical;
17 the plain language of subdivision (c) expressly references other “mathematics courses of equal
18 rigor” taken prior to enrollment in 9th grade. Since the District does not offer such courses, by
19 its terms subdivision (c) applies to courses outside the District that are not the District’s own
20 Algebra I courses. On this point, the statute is unambiguous; giving the “actual words” a “plain
21 and commonsense meaning,” the terms are clear and the court need not resort to the legislative
22 history. (Switzer v. Wood (2019) 35 Cal.App.5th 116, 128-129.) The District’s interpretation
23 would not only “frustrate the manifest purpose of the legislation as a whole”—including
24 section 51228.2 (discussed, infra) but would “lead to absurd results” by rendering the statute a
25 nullity. (Cal. Sch. Emp. Assn. v. Governing Bd. (1994) 8 Cal.4th 333, 340.)
26 Indeed, the most recent amendment to section 51224.5 indicates only an update to
27 reflect the transition by some Districts from the “traditional sequence” of high school
28 mathematics commencing with Algebra 1 to an “Integrated Mathematics” sequence
8
RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 commencing with Mathematics 1. (Dist. RJN, Ex. 8, pp. 3-4 (Bates Stamp p. 74.) Prior to that,
2 subdivision (c) clarified that pupils who complete “coursework in grade 7 or 8 for algebra”
3 were exempt from the general requirement of Algebra in high school but not the requirements
4 otherwise specified in section 51225.3(b)(1)(B). (See 2004 Amendment.) The most recent
5 amendment (2015) deleted the reference to “coursework in grade 7 or 8 for algebra” and
6 replaced it with the current “equal rigor” and “align[ment]” language, reaffirming and
7 expanding the manner by which a student must be permitted to satisfy the Algebra 1
8 requirement. (See 2015 Amendment.)
9
2. A District Is Not Vested with Discretion to Reject a Pre-9th Grade
10 Mathematics Course So Long as It Is of Equal Rigor to Algebra 1 or
Mathematics 1 and Aligns with Content Standards Adopted by the
11 State Board
12 The District argues it is “vested with discretion to determine whether a particular course
13 is an adequate substitute” and thus could “conclude” that a student who took an accelerated
14 mathematics course in middle school had not completed a course of equal rigor or that is
15 aligned to the content standards adopted by the state board. (Demurer p. 16.) The District
16 attempts to bolster its argument by citing to the California Department of Education’s (“CDE”)
17 website stating “The determination whether the coursework in algebra, taken prior to grade 9,
18 meets or exceeds the rigor of the content standards for Algebra 1 or Mathematics 1, as adopted
19 by the SBE, is a local decision.” (Demurer p. 17, citing and quoting its Request for Judicial
20 Notice, Ex. 5, CDE, Mathematics Graduation Requirements webpage.) The District argues that
21 the CDE’s “interpretation” of section 51224.5(c) is entitled to deference as an agency
22 interpretation. (Ibid.) The District conflates the concept of making a determination with being
23 vested with discretion to make the determination.
24 The CDE’s website’s statement is neither an agency interpretation, nor one entitled to
25 deference. While an agency’s interpretation of its own regulations is usually entitled to
26 deference where the agency “has consistently maintained the interpretation in question” (Butts
27 v. Bd. of Trustess of Cal. St. Univ. (2014) 225 Cal.App.4th 825, 940), courts “independently
28 judge the text of the statute” and an agency’s interpretation is but “one among several tools
9
RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED
ST. PHALLE & SILVER, PC PETITION AND COMPLAINT
1 available” to aid in that interpretation. (Yamaha Corp. of America v. State Bd. of Equalization
2 (1998) 19 Cal.4th 1, 7.) They are “not binding or necessarily even authoritative.” (Id. at p. 8.)
3 At issue here is a statute, not a regulation promulgated by CDE; moreover, there is no assertion
4 CDE has maintained such interpretation consistently. At any rate, the sentence on the CDE’s
5 website is not helpful. It merely says that the local agency makes the determination; it says
6 nothing about section 51224.5 (c) committing discretion to the local agency as opposed to it
7 being a ministerial determination. Section 51224.5(c) does not specify that the local district
8 shall approve or accredit the course the student took; nor does it specify that it may only
9 approve those which it deems acceptable. (See e.g., Jackson v. Gourley (2003) 105 Cal.App.4th
10 966, 972-973 [Dept. of Motor Vehicles had ministerial duty to accept certificates of completion
11 from students who took driver education correspondence course from private high school].)
12 Nor does section 51224.5 suggest a local district may reject a course on the ground it was an
13 accelerated mathematics course taken in middle school, a homeschool online class, or one
14 taken at a private school. (Demurer p. 16.) The only issue is whether it meets a certain rigor and
15 whether it is aligned with standards adopted by the state board; in other words, the curriculum
16 and pace. Nothing in section 51224.5(c) indicates these can be determined through the MVT. 5
17 a. Even if the district is vested with discretion to determine a
Preview
1 Nicole Pifari, SBN 297031 RAINS LUCIA STERN ST. PHALLE & SILVER, PC 2 220 Montgomery Street, 15th Floor San Francisco, CA 94104 ELECTRONICALLY 3 Tel: (415) 341-9341 FILED Fax: (925) 609-1690 Superior Court of California, 4 County of San Francisco Email: NPifari@RLSlawyers.com 5 08/18/2023 Clerk of the Court Attorneys for Petitioners BY: EDWARD SANTOS 6 ANNESA FLENTJE, REX RIDGEWAY, Deputy Clerk 7 OXANA GIGI, MOIRA DOWELL, FRIENDS OF LOWELL FOUNDATION, AND 8 ASIAN AMERICAN LEGAL FOUNDATION 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 11 IN AND FOR THE COUNTY OF SAN FRANCISCO 12 ANNESA FLENTJE; REX RIDGEWAY; CASE NO. CPF-23-517987 13 OXANA GIGI; MOIRA DOWELL; FRIENDS OF LOWELL FOUNDATION; AND PETITIONERS’ OPPOSITION TO 14 ASIAN AMERICAN LEGAL FOUNDATION, RESPONDENT’S DEMURRER TO 15 FIRST AMENDED VERIFIED Petitioners, PETITION FOR WRIT OF MANDATE 16 v. AND COMPLAINT FOR PERMANENT INJUNCTION AND DECLARATORY 17 SAN FRANCISCO UNIFIED SCHOOL RELIEF DISTRICT, 18 Hearing: August 31, 2023 19 Respondent. Time: 9:30 a.m. Dept: 302 20 Complaint Filed: March 30, 2023 21 FAC Filed: July 25, 2023 22 Trial: None Set 23 24 25 26 27 28 i RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 TABLE OF CONTENTS 2 I. INTRODUCTION............................................................................................................ 1 3 II. STANDARD OF REVIEW ............................................................................................. 2 4 III. LEGAL ARGUMENT ..................................................................................................... 2 5 A. Because Primary Authority in Public Education Is Vested in the Legislature, the 6 District’s Generally Broad Discretion to Administer Its Own Programs Tailored to the Unique Needs of Its Communities May Be Limited by the Prescriptions 7 Set Forth in Education Code Sections 51224.5 and 51228.2 ................................ 2 8 B. Petitioners and Plaintiffs Have Alleged a Cause of Action for Writ of Mandate Under Education Code Section 51224.5 ............................................................... 6 9 10 1. Section 51224.5 (c) Creates a Mandatory, Non-Discretionary Duty to Exempt Pupils from Taking a High School Course in Algebra 1 or 11 Mathematics 1 Where, Prior to Enrolling in 9th grade, the Pupil Took a Mathematics Course of Equal Rigor to Algebra I or Mathematics I That 12 Is “Aligned to the Content Standards Adopted by the State Board” ........ 7 13 2. A District Is Not Vested with Discretion to Reject a Pre-9th Grade 14 Mathematics Course So Long as It Is of Equal Rigor to Algebra 1 or Mathematics 1 and Aligns with Content Standards Adopted by the State 15 Board ......................................................................................................... 9 16 a. Even if the district is vested with discretion to determine a pre- 9th grade course does not meet the requirements of subdivision 17 (c) of section 51224.5, mandate lies to correct an abuse of that discretion and petitioners should be given leave to amend to 18 allege such. .................................................................................. 10 19 3. Subdivision (A) of Section 51224.5 Requires the District to Offer 20 Algebra I as Early as 7th Grade ............................................................... 11 21 C. The Petition and Complaint State a Cause of Action for Writ of Mandate as to Education Code Section 51228.2 ........................................................................ 12 22 23 V. CONCLUSION .............................................................................................................. 15 24 25 26 27 28 ii RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 TABLE OF AUTHORITIES 2 Cases 3 Brennon B. v. Superior Court (W. Contra Costa Unif. Sch. Dist.) (2022) 13 Cal.5th 662........... 3 4 Brown v. Smith (2018) 24 Cal.App.5th 1135, 1141 ...................................................................... 2 5 Butts v. Bd. of Trustess of Cal. St. Univ. (2014) 225 Cal.App.4th 825, 940 ........................... 9, 14 6 Cal. Assn. of Private Sp. Educ. Schools v. Dept. of Educ. (2006) 141 Cal.App.4th 360, 368...... 2 7 Cal. Sch. Emp. Assn. v. Governing Bd. (1994) 8 Cal.4th 333, 340 .............................................. 8 8 Cal. School Bds. Assn. v. State Bd. of Educ. (2010) 186 Cal.App.4th 1298, 1320....................... 2 9 California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 10 627, 633..................................................................................................................................... 5 11 Center for Community Action & Environmental Justice v. City of Moreno Valley (2018) 26 12 Cal.App.5th 689, 698 .............................................................................................................. 12 13 City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 868 .................................................. 7 14 City of Oakland v. Oakland Sch. Dist. (1956) 138 Cal.App.2d 406, 409 ..................................... 4 15 City of Torrance v. Southern Calif. Edison (2021) 61 Cal.App.5th 1071, 1091 ........................ 15 16 Dawson v. East Side Union High School Dist. (1994) 28 Cal.App.4th 998, 1017 ....................... 4 17 Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387 ................. 5 18 Facebook, Inc. v. Duguid (2021) 141 S.Ct.1163, 1169 .............................................................. 13 19 Hartzell v. Connell (1984) 35 Cal.3d 899, 915 ............................................................................. 4 20 Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390 ......................................... 3 21 Jackson v. Gourley (2003) 105 Cal.App.4th 966, 972-973 ........................................................ 10 22 Love v. State Dept. of Educ. (2018) 29 Cal.App.5th 980, 988 .......................................... 2, 11, 15 23 Manderson-Saleh v. Regents of Univ. of Cal. (2021) 60 Cal.App.5th 674, 692 ......................... 11 24 People v. Gutierrez (2014) 58 Cal.4th 1354, 1369 ....................................................................... 5 25 Rodriguez v. Solis (1991) 1 Cal.App.4th 495, 501-502 ................................................................ 7 26 San Rafael Elementary Sch. Dist. v. State Bd. of Educ. (1999) 73 Cal.App.4th 1018, 1027 ....... 4 27 Santa Clara County Counsel Attys. Assn. v. Woodside (1994) 7 Cal.4th 525, 540 ................ 7, 10 28 Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 495 ........................... 7 iii RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 940, 955 ................................ 3 2 Switzer v. Wood (2019) 35 Cal.App.5th 116, 128-129 ................................................................. 8 3 Yamaha Corp. of America v. State Bd. of Equalization (1998) 19 Cal.4th 1, 7 ......................... 10 4 Statutes 5 California Code of Civil Procedure section 1085 ..................................................................... 2, 7 6 California Education Code section 201 .................................................................................... 1, 2 7 California Education Code section 35160……………………………………………….…4, 5, 9 8 California Education Code section 35160.1 ......................................................................... 3, 4, 8 9 California Education Code section 35160.1(a) ............................................................................. 3 10 California Education Code section 51220 .............................................................................. 6, 11 11 California Education Code section 51224.5 ......................................... 1, 2, 4, 5, 6, 7, 8, 9, 10, 11 12 California Education Code section 51224.5(c) ................................................................... 8, 9, 10 13 California Education Code section 51224.5 (c)-(d) .................................................................... 10 14 California Education Code section 51224.7 ........................................................... 1, 5, 10, 11, 14 15 California Education Code section 51225.3(b)(1)(B)................................................................... 9 16 California Education Code section 51228.2 ............................................... 1, 2, 4, 5, 8, 12, 13, 14 17 California Education Code section 51228.2 (a) .......................................................................... 13 18 California Education Code section 60002 ................................................................................ 4, 8 19 California Education Code section 60003 ................................................................................ 4, 8 20 Other Authorities 21 93 Ops.Cal.Atty.Gen. 63 (2010); 2010 Cal. AG Lexis 14, *8 ...................................................... 4 22 Sen. Bill No. 359 (2015-2016 Regular Session) ........................................................................... 6 23 Constitutional Provisions 24 California Constitution, Article IX, Section 14 ............................................................................ 3 25 26 27 28 iv RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 I. INTRODUCTION 2 Respondent San Francisco Unified School District (“SFUSD” or the “District”) digs in 3 its heels on policies and practices that impermissibly deprive students of educational growth 4 and opportunity commensurate with their abilities and efforts. The District appears to 5 characterize these students as opportunistic, and engages in practices having disproportionate 6 effects on socially-disadvantaged students, and in particular black and Hispanic students, 7 making it difficult for them to access upper-level math courses. The District leans heavily on 8 the “permissive” Education Code, 1 suggesting unfettered discretion to select and implement its 9 instructional mission. However, it may only do so to the extent such programs and activities 10 “are not in conflict with, or preempted by, any law.” The statutes at issue here are a Legislative 11 curtailment of such local discretion. 12 The District demurs only to the first (§ 51224.5), third (§ 51228.2) and fourth (§ 201) 13 causes of action. It extensively discussed legislative history for sections 51224.5 and 51228.2, 14 but failed to mention that both were last amended in 2015 within weeks of passage of the Math 15 Placement Act (“MPA”). The MPA at § 51224.7 is central to Petitioners’ second cause of 16 action. Notably, the District does not demur to it. Because sections 51224.5 and 51228.2 were 17 amended contemporaneously with unanimous passage of Math Placement Act, the Court must 18 consider this backdrop when harmonizing the at-issue statutes. The District’s claim to 19 unfettered discretion under the aegis of the permissiveness of the Education Code is 20 unwarranted under the plain language of these statutes and their purpose, as a matter of 21 statewide uniformity set forth in the California Department of Education’s mission to empower 22 our children to “attain the highest level of academic knowledge...,” to “cause a high standard of 23 student accomplishment…,” and to ensure “that a small number of exceptional needs students 24 must be expected, challenged, and assisted to achieve at an individually determined and 25 appropriately high level.” 26 /// 27 28 1 Unless otherwise noted, all statutory references are to the Education Code. 1 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 II. STANDARD OF REVIEW 2 The standard of review for a demurrer is well-settled. A demurrer tests the legal 3 sufficiency of the complaint, and, giving the complaint a reasonable interpretation, the court 4 accepts as true all material facts alleged in the complaint and properly pleaded. (Love v. State 5 Dept. of Educ. (2018) 29 Cal.App.5th 980, 988; Cal. Assn. of Private Sp. Educ. Schools v. 6 Dept. of Educ. (2006) 141 Cal.App.4th 360, 368.) The court may also consider matters that 7 may be judicial noticed. (Brown v. Smith (2018) 24 Cal.App.5th 1135, 1141.) When reviewing 8 the sufficiency of a complaint against a general demurrer, “it is long settled that ‘[t]he 9 complaint must be liberally construed and given a reasonable interpretation, with a view to 10 substantial justice between the parties.’[Citations.]” (Cal. School Bds. Assn. v. State Bd. of 11 Educ. (2010) 186 Cal.App.4th 1298, 1320.) Where there is a “reasonable possibility that [a] 12 defect can be cured by amendment,” a trial court abuses its discretion in sustaining a demurrer 13 without leave to amend. (Love, supra, 29 Cal.App.5th at p. 988 [internal quotations omitted].) 14 Moreover, because the petition seeks a writ of mandate under Code of Civil Procedure section 15 1085, independent review is required because the issues involve statutory construction and 16 whether the District’s actions are consistent with applicable law. (Cal. School Bds. Assn., 17 supra, 186 Cal.App.4th at 1313-1314.) 18 III. LEGAL ARGUMENT A. Because Primary Authority in Public Education Is Vested in the 19 Legislature, the District’s Generally Broad Discretion to Administer Its 20 Own Programs Tailored to the Unique Needs of Its Communities May Be Limited by the Prescriptions Set Forth in Education Code Sections 51224.5 21 and 51228.2 22 Respondent’s Demurrer focuses on statutory construction of California Education Code 23 sections 51224.5, 51228.2, and to a lesser degree, section 201. 2 The rules of statutory 24 construction were recently summarized by the California Supreme Court in Brennon B. v. 25 26 2 Upon due consideration, Petitioners agree that Education Code section 201 does not impose a clear, present, and ministerial duty independent of sections 51224.5 and 51228.2. That is not to say no cause 27 of action can be alleged as to a violation of section 201 if permitted to amend, but only that mandate does not appear to lie independently by way of section 201 to compel the District to comply with the 28 terms of sections 51224.5 and 51228.2. 2 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 Superior Court (W. Contra Costa Unif. Sch. Dist.) (2022) 13 Cal.5th 662 (“Brennon B.”). The 2 court “examine[s] the statutory language, giving it a plain and commonsense meaning. . . If the 3 language is clear, courts must generally follow its plain meaning unless a literal interpretation 4 would result in absurd consequences the Legislature did not intend.” (Brennon B., supra, 13 5 Cal.5th at p. 674 [internal quotes omitted].) If, on the other hand, the statutory language 6 “permits more than one reasonable interpretation, courts may consider other aids” including 7 “legislative history, and public policy.” (Ibid.) 8 “Statutes must be interpreted, if possible, to give each word some operative effect [,] 9 [citation]” meaning the court should not “construe statutory provisions so as to render them 10 superfluous.[Citation.]” (Imperial Merchant Services, Inc. v. Hunt (2009) 47 Cal.4th 381, 390.) 11 Finally, it is incumbent upon courts to harmonize statutes based on their texts, if that can 12 reasonably be done: “A court must, where reasonably possible, harmonize statutes, reconcile 13 seeming inconsistencies in them, and construe them to give force and effect to all of their 14 provisions. [Citations.] This rule applies although one of the statutes involved deals generally 15 with a subject and another relates specifically to particular aspects of the subject.” [Citation.] 16 Thus, when “‘two codes are to be construed, they “must be regarded as blending into each other 17 and forming a single statute.” [Citation.] … [T]hey “must be read together and so construed as 18 to give effect, when possible, to all the provisions thereof.” (State Dept. of Public Health v. 19 Superior Court (2015) 60 Cal.4th 940, 955.) 20 The District devotes considerable space to its broad discretion, citing, among others, 21 what is commonly known as the “permissive Education code.” (Ed. Code § 35160.) Section 22 35160 provides in pertinent part that “the governing board of any school district may initiate 23 and carry on any program, activity, or may otherwise act in any manner which is not in conflict 24 with, or preempted by, any law and which is not in conflict with the purpose for which school 25 districts are established.” (§ 35160, implementing Cal. Const. art. IX, § 14.) As the District 26 correctly notes, the Legislature has declared that districts “have diverse needs unique to their 27 individual communities and programs” and thus “should have the flexibility to create their own 28 unique solutions.” (Educ. Section 35160.1(a).) The purpose of these statutes is to “establish that 3 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 the Education Code is a permissive body of law” and thus is it “not necessary to find express 2 authority in a particular statute for each and every action that a school district may wish to 3 take” so long as not in “conflict with, inconsistent with, or preempted by any law.” (93 4 Ops.Cal.Atty.Gen. 63 (2010); 2010 Cal. AG Lexis 14, *8.) Prior to the effective date of section 5 35160, local school districts possessed little, if any, power to act without express legislative or 6 administrative authorization. (See, e.g., City of Oakland v. Oakland Sch. Dist. (1956) 138 7 Cal.App.2d 406, 409.) Section 35160 simply “provides local districts with more flexibility” in 8 the absence of express authorization. (Hartzell v. Connell (1984) 35 Cal.3d 899, 915 (Hartzell.) 9 Consistent with this, the Legislature has provided that “because of economic, geographic, 10 physical, political, educational, and social diversity, specific choices about instruction materials 11 need to be made at the local level[.]” (Educ. Code section 60002.) School districts thus have 12 “broad powers to establish courses of study [and] the ability to choose instructional materials 13 which are appropriate to their courses of study.” (Educ. Code section 60003.) 14 However, the “flexibility provided by section 35160 is not without limits.” (Hartzell, 15 supra, 35 Cal. 3d at p. 915.) The District argues that “[s]ections 51224.5 and 51228.2 must be 16 understood in the context of the permissive Education Code and read as providing only “broad 17 minimum standards and guidelines.” (Demurrer, pp. 13-14.) The District gets it backwards. 18 Rather, “the generalized sentiment of [the permissive Education Code] is of no help in 19 determining how much, if any, flexibility the Legislature has provided under a specific 20 statutory scheme.” (San Rafael Elementary Sch. Dist. v. State Bd. of Educ. (1999) 73 21 Cal.App.4th 1018, 1027 (San Rafael.) (Emphasis added.) Because a district has flexibility only 22 to the extent it acts in a manner “not in conflict with or inconsistent with, or preempted by, any 23 law” (§ 35160), the meaning of the particular statute must first be “ascertained” prior to 24 applying the flexibility principles of sections 35160 and 35160.1. (San Rafael at p. 1027.) 25 Indeed, although it has “ceded substantial discretionary control” to local districts, 26 “primary authority over public education is vested in the Legislature[.]” (Dawson v. East Side 27 Union High School Dist. (1994) 28 Cal.App.4th 998, 1017.) (Emphasis added.) In exercising its 28 4 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 primary authority over public education, the Legislature enacted sections 51224.5 and 51228.2 3 2 and each of those statutes must be read in harmony with the Math Placement Act, as codified in 3 section 51224.7. 4 The Legislature exercises its primary authority over public education by passing laws, 5 and when there is debate about how to interpret those laws, we often examine the legislative 6 intent. The first step in ascertaining the Legislature’s intent is to scrutinize the words of the 7 statute, giving them a plain and commonsense meaning. (California Teachers Assn. v. 8 Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633) Although the words 9 of a statute are generally the most reliable indicator of legislative intent, if the words are 10 ambiguous or uncertain, we may resort to extrinsic sources to ascertain their meaning, 11 including the statute’s legislative history and ostensible objects to be achieved. (People v. 12 Gutierrez (2014) 58 Cal.4th 1354, 1369). We may also consider the wider historical 13 circumstances of a statute’s enactment in ascertaining legislative intent. (Dyna-Med, Inc. v. 14 Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1387.) 15 Although Respondents did not demurrer to causes of action based on § 51224.7 (the 16 Math Placement Act), it remains relevant here for the purposes of statutory construction that 17 the Act was enacted at nearly the exact same time as the two statutes that are the subject of this 18 demurrer. Section 51224.7 was enacted as a result of overwhelming and bipartisan support on 19 October 5, 2015. The most recent amendment to § 51228.2 was enacted four days later on 20 October 9, and the most recent amendment to § 51224.5 was enacted two months prior on 21 August 11, 2015. It is important to emphasize each of these amendments and the Act were 22 enacted within 8 weeks of each other, because SFUSD’s interpretation of the statutes relevant 23 to its demurrer is shockingly contrary to what our lawmakers declared when passing the Math 24 Placement Act, within weeks of also amending those statutes: 25 Misplacement in the sequence of mathematics courses creates a number of 26 3 The District cites to its Request for Judicial Notice, Exs. 7, 10, 11, and 12 as to the State Board of 27 Education’s adoption of California’s Mathematics Framework in 2013 and recent revisions, concerning multiple course sequencing pathways district could adopt to cover algebra and other standards. 28 (Demurer p. 15.) However, none discusses the impact of Education Code section 51224.5. 5 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 barriers and results in pupils being less competitive for college admissions…The most egregious examples of mathematics misplacement occur with successful 2 pupils…These successful pupils are achieving a grade of “B” or better, or are 3 testing at proficient or even advanced proficiency…[yet] are held back to repeat [Algebra 1] 4 coursework rather than advancing…” 4 (Sen. Bill No. 359 (2015-2016 Reg. Sess.).) 5 Respondents hope the Court will keep in mind that in passing the Act, the legislature 6 sought to prevent the very thing that SFUSD now claims surrounding and related statutes grant 7 it “discretion” to do: misplace successful pupils into repetitive and redundant coursework 8 where they are prevented from advancing their education. 9 B. Petitioners and Plaintiffs Have Alleged a Cause of Action for Writ of Mandate Under Education Code Section 51224.5 10 Section 51224.5 provides in pertinent part: 11 (a) The adopted course of study for grades 7 to 12, inclusive, shall include 12 algebra as part of the mathematics area of study pursuant to subdivision (f) of Section 51220. 13 (b) Before receiving a diploma of graduation from high school, a pupil shall complete at least one course, or a combination of the two courses required . . . 14 pursuant to subparagraph (B) of paragraph (1) of subdivision (1) of Section 15 51225.3, that meets or exceeds the rigor of Algebra I or Mathematics I, that is aligned to the content standards adopted by the state board pursuant to 16 Sections 60605.8 and 60605.11. 17 (c) A pupil who, before enrollment in grade 9, completes a course in Algebra I or Mathematics I, or mathematics courses of equal rigor, that is aligned to the 18 content standards adopted by the state board, is exempt from subdivision (b), but is not exempt from the requirement that the public complete two courses 19 in mathematics while enrolled in grades 9 to 12, inclusive, as specified in 20 subparagraph (B) of paragraph (1) of subdivision (a) of Section 51225.3. 21 The District argues that section 51224.5(a) does not require it to offer Algebra 1 in 7th 22 or 8th grade (pp. 14-15) and that section 51224.5 does not require it to accept outside or non- 23 Algebra 1 courses taken before high school (Demmurer pp. 15-17), exempting students, as 24 required by subdivision (c), from taking the district’s own course offered in Algebra 1 or 25 Mathematics 1. 26 /// 27 4 The original language used in the Legislature’s 2015 declaration was “8th grade mathematics 28 coursework,” and 8th grade mathematics coursework in 2015 was Algebra 1. 6 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 1. Section 51224.5 (c) Creates a Mandatory, Non-Discretionary Duty to Exempt Pupils from Taking a High School Course in Algebra 1 or 2 Mathematics 1 Where, Prior to Enrolling in 9th grade, the Pupil 3 Took a Mathematics Course of Equal Rigor to Algebra I or Mathematics I That Is “Aligned to the Content Standards Adopted 4 by the State Board” 5 In order to obtain writ relief, a party must establish (1) a clear, present, and usually 6 ministerial duty on the part of the respondent; and (2) a clear, present and beneficial right in the 7 petition to the performance of that duty. (Cal. Civ. Proc. § 1085; City of Dinuba v. County of 8 Tulare (2007) 41 Cal.4th 859, 868.) Mandate is “available to compel a public agency’s 9 performance or correct an agency’s abuse of discretion” where the action to be corrected or 10 compelled is “ministerial” or “legislative.” (Santa Clara County Counsel Attys. Assn. v. 11 Woodside (1994) 7 Cal.4th 525, 540.) “’A ministerial duty is an act that a public officer is 12 obligated to perform in a prescribed manner required by law when a given state of facts exists.’ 13 [Citations.]” (Schmid v. City and County of San Francisco (2021) 60 Cal.App.5th 470, 495 14 (Schmid).) “Discretion, on the other hand, is the power conferred on public functionaries to act 15 officially according to the dictates of their own judgment. [Citation.]” (Rodriguez v. Solis 16 (1991) 1 Cal.App.4th 495, 501-502 (Rodriguez).) 17 Here, the “given state of facts” at issue is found in subdivision (c) of section 51224.5, 18 and is straightforward. If, prior to enrolling in 9th grade a pupil “completes a course in” either 19 “Algebra 1 or Mathematics 1,” or the pupil “completes . . . a mathematical course of equal 20 rigor” to Algebra 1 or Mathematics 1, and that course is “aligned to the content standards 21 adopted by the state board,” then the pupil is exempt from subdivision (b)’s requirement of 22 taking the required math course offered by the high school that is equivalent to or exceeds the 23 rigors Algebra 1 or Mathematics 1 in order to graduate. Though not expressly alleged, each 24 pupil discussed in the First Amended Verified Petition is alleged to have “complete[d] . . . a 25 mathematical course of equal rigor” to Algebra 1 or Mathematics 1 and which is “aligned to the 26 content standards adopted by the state board.” (First Am. Pet., ¶¶ 49 [G.S. and K.S.], 50 [J.M.], 27 51 [K.G. and L.G.], and 52 [S.D.]. The First Amended Petition further alleges that K.S., J.M, 28 S.D., and K.O were “all required by SFUSD policy to retake Algebra 1 in the 9th grade, despite 7 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 having already taken the course or a course of equal rigor.” (First Am. Pet. ¶59.) Because these 2 conditions are met, the District has a ministerial duty to exempt these pupils from subdivision 3 (b)’s requirement they take high school Algebra 1 or Mathematics 1. 4 The District asserts no particular discretion or judgment necessary to determine whether 5 a “course [is] of equal rigor” or “aligned to the content standards adopted by the state board.” 6 (§ 51224.5(c).) While the “permissive” Education Code” (§ 35160) may give a district 7 flexibility to create its own solutions (35160.1), and at the “local level” broad discretion to 8 make “specific choices about instruction materials” that meet the prescribed rigor and content 9 alignment for its own courses (§§ 60002, 60003), that is not what subdivision (c) of section 10 51224.5 prescribes. Subdivision (c) exempts pupils from the requirements of subdivision (b) so 11 long as the course taken prior to 9th grade was rigorous enough and aligned with content 12 standards adopted by state board, and not whether the district would have used the same 13 instruction materials as the pre-9th grade course’s institution to achieve the rigor and 14 alignment. 15 The District argues there is nothing in the history “that supports any obligation of the 16 District to accept other math classes in lieu of its own Algebra I course.” This is non-sensical; 17 the plain language of subdivision (c) expressly references other “mathematics courses of equal 18 rigor” taken prior to enrollment in 9th grade. Since the District does not offer such courses, by 19 its terms subdivision (c) applies to courses outside the District that are not the District’s own 20 Algebra I courses. On this point, the statute is unambiguous; giving the “actual words” a “plain 21 and commonsense meaning,” the terms are clear and the court need not resort to the legislative 22 history. (Switzer v. Wood (2019) 35 Cal.App.5th 116, 128-129.) The District’s interpretation 23 would not only “frustrate the manifest purpose of the legislation as a whole”—including 24 section 51228.2 (discussed, infra) but would “lead to absurd results” by rendering the statute a 25 nullity. (Cal. Sch. Emp. Assn. v. Governing Bd. (1994) 8 Cal.4th 333, 340.) 26 Indeed, the most recent amendment to section 51224.5 indicates only an update to 27 reflect the transition by some Districts from the “traditional sequence” of high school 28 mathematics commencing with Algebra 1 to an “Integrated Mathematics” sequence 8 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 commencing with Mathematics 1. (Dist. RJN, Ex. 8, pp. 3-4 (Bates Stamp p. 74.) Prior to that, 2 subdivision (c) clarified that pupils who complete “coursework in grade 7 or 8 for algebra” 3 were exempt from the general requirement of Algebra in high school but not the requirements 4 otherwise specified in section 51225.3(b)(1)(B). (See 2004 Amendment.) The most recent 5 amendment (2015) deleted the reference to “coursework in grade 7 or 8 for algebra” and 6 replaced it with the current “equal rigor” and “align[ment]” language, reaffirming and 7 expanding the manner by which a student must be permitted to satisfy the Algebra 1 8 requirement. (See 2015 Amendment.) 9 2. A District Is Not Vested with Discretion to Reject a Pre-9th Grade 10 Mathematics Course So Long as It Is of Equal Rigor to Algebra 1 or Mathematics 1 and Aligns with Content Standards Adopted by the 11 State Board 12 The District argues it is “vested with discretion to determine whether a particular course 13 is an adequate substitute” and thus could “conclude” that a student who took an accelerated 14 mathematics course in middle school had not completed a course of equal rigor or that is 15 aligned to the content standards adopted by the state board. (Demurer p. 16.) The District 16 attempts to bolster its argument by citing to the California Department of Education’s (“CDE”) 17 website stating “The determination whether the coursework in algebra, taken prior to grade 9, 18 meets or exceeds the rigor of the content standards for Algebra 1 or Mathematics 1, as adopted 19 by the SBE, is a local decision.” (Demurer p. 17, citing and quoting its Request for Judicial 20 Notice, Ex. 5, CDE, Mathematics Graduation Requirements webpage.) The District argues that 21 the CDE’s “interpretation” of section 51224.5(c) is entitled to deference as an agency 22 interpretation. (Ibid.) The District conflates the concept of making a determination with being 23 vested with discretion to make the determination. 24 The CDE’s website’s statement is neither an agency interpretation, nor one entitled to 25 deference. While an agency’s interpretation of its own regulations is usually entitled to 26 deference where the agency “has consistently maintained the interpretation in question” (Butts 27 v. Bd. of Trustess of Cal. St. Univ. (2014) 225 Cal.App.4th 825, 940), courts “independently 28 judge the text of the statute” and an agency’s interpretation is but “one among several tools 9 RAINS LUCIA STERN PETITIONERS’ OPPOSITION TO RESPONDENT’S DEMURRER TO FIRST AMENDED VERIFIED ST. PHALLE & SILVER, PC PETITION AND COMPLAINT 1 available” to aid in that interpretation. (Yamaha Corp. of America v. State Bd. of Equalization 2 (1998) 19 Cal.4th 1, 7.) They are “not binding or necessarily even authoritative.” (Id. at p. 8.) 3 At issue here is a statute, not a regulation promulgated by CDE; moreover, there is no assertion 4 CDE has maintained such interpretation consistently. At any rate, the sentence on the CDE’s 5 website is not helpful. It merely says that the local agency makes the determination; it says 6 nothing about section 51224.5 (c) committing discretion to the local agency as opposed to it 7 being a ministerial determination. Section 51224.5(c) does not specify that the local district 8 shall approve or accredit the course the student took; nor does it specify that it may only 9 approve those which it deems acceptable. (See e.g., Jackson v. Gourley (2003) 105 Cal.App.4th 10 966, 972-973 [Dept. of Motor Vehicles had ministerial duty to accept certificates of completion 11 from students who took driver education correspondence course from private high school].) 12 Nor does section 51224.5 suggest a local district may reject a course on the ground it was an 13 accelerated mathematics course taken in middle school, a homeschool online class, or one 14 taken at a private school. (Demurer p. 16.) The only issue is whether it meets a certain rigor and 15 whether it is aligned with standards adopted by the state board; in other words, the curriculum 16 and pace. Nothing in section 51224.5(c) indicates these can be determined through the MVT. 5 17 a. Even if the district is vested with discretion to determine a