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  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
  • KIPP BAY AREA SCHOOLS, A CALIFORNIA VS. SAN FRANCISCO UNIFIED SCHOOL DISTRICT, A ET AL WRITS OF MANDATE OR PROH., CERTI., ETC./ADMIN. AGEN document preview
						
                                

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1 John C. Lemmo (Bar No. 190885) Fee Exempt Kevin M. Davis (Bar No. 259693) Per Gov. Code § 6103 2 P. Jacob Kozaczuk (Bar No. 294734) ELECTRONICALLY PROCOPIO, CORY, HARGREAVES 3 & SAVITCH LLP F I L E D Superior Court of California, 525 B Street, Suite 2200 County of San Francisco 4 San Diego, CA 92101 Telephone: 619.238.1900 06/16/2020 5 Facsimile: 619.235.0398 Clerk of the Court BY: SANDRA SCHIRO Deputy Clerk 6 Attorneys for Petitioner KIPP BAY AREA SCHOOLS 7 8 SUPERIOR COURT OF THE STATE OF CALIFORNIA 9 COUNTY OF SAN FRANCISCO 10 KIPP BAY AREA SCHOOLS, a California Case No. CPF-20-517094 nonprofit public benefit corporation operating a 11 California public charter school, MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF 12 Petitioner, MOTION FOR JUDGMENT ON PEREMPTORY WRIT PURSUANT TO 13 v. CODE OF CIV. PROC. § 1094 14 SAN FRANCISCO UNIFIED SCHOOL Date: July 9, 2020 DISTRICT, a California school district; Time: 9:30 a.m. 15 BOARD OF EDUCATION OF THE SAN Dept.: 302 FRANCISCO UNIFIED SCHOOL DISTRICT; 16 and VINCENT MATTHEWS, in his capacity as Superintendent, 17 Respondents. 18 19 Petitioner KIPP BAY AREA SCHOOLS (“Petitioner” or “KIPP”), a California nonprofit 20 public benefit corporation operating a California public charter school known as KIPP Bayview 21 Elementary (“KIPP Bayview”), respectfully submits the following Memorandum of Points and 22 Authorities in support of its Motion for Judgment on the Peremptory Writ against Respondents 23 SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a California school district; BOARD OF 24 EDUCATION OF THE SAN FRANCISCO UNIFIED SCHOOL DISTRICT; and VINCENT 25 MATTHEWS, in his capacity as Superintendent (collectively, “SFUSD” or the “District”). 26 27 28 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 TABLE OF CONTENTS TABLE OF AUTHORITIES .............................................................................................................. 3 2 I. INTRODUCTION .................................................................................................................. 5 3 II. BACKGROUND .................................................................................................................... 7 4 A. Charter Schools Play an Important Role in Public Education .................................... 7 5 B. SFUSD Must Fairly Share Its Facilities with Charter Schools .................................. 8 6 C. SFUSD Fails to Provide KIPP Bayview Equivalent Facilities and Share Space ....... 9 7 D. KIPP Bayview Submitted Enrollment Projections for the 2020-21 School Year, 8 and SFUSD Determined 10 Rooms Were Required ................................................ 10 9 E. SFUSD Arbitrarily Cut the 10 Rooms to Six, Contrary to Proposition 39 .............. 11 10 III. JUDGMENT ON THE WRIT, AND STANDARD OF REVIEW ...................................... 12 11 A. Courts Issue Writs of Mandate to Enforce Proposition 39 ....................................... 12 12 B. Motion for Judgment Pursuant to Section 1094 ....................................................... 13 13 C. Standard of Review .................................................................................................. 13 14 IV. DISCUSSION....................................................................................................................... 14 15 A. SFUSD Has a Mandatory Duty to Comply with Proposition 39 by Providing KIPP Bayview at Least 10 Rooms ........................................................................... 14 16 B. SFUSD Failed to Follow the Three-Step Process for Responding to KIPP 17 Bayview’s Facilities Request ................................................................................... 15 18 C. SFUSD Fails to Fairly Share the 20 Rooms at the Malcolm X Campus By Allocating Only Six Rooms for KIPP Bayview’s Larger Enrollment ..................... 16 19 D. SFUSD Unlawfully Deprived KIPP Bayview of Its Right to Evaluate and 20 Meaningfully Respond to SFUSD’s Facilities Offer................................................ 17 21 E. SFUSD Attempts Do-over, Two Months Too Late.................................................. 18 22 V. CONCLUSION .................................................................................................................... 19 23 24 25 26 27 28 2 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 TABLE OF AUTHORITIES 2 Page(s) 3 CALIFORNIA CASES 4 American Indian Model Schools v. Oakland Unified School Dist. (2014) 227 Cal.App.4th 258....................................................................................................................14 5 6 Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022.......................................................................................................... passim 7 Butt v. State of California (1992) 8 4 Cal.4th 668 .................................................................................................................................8 9 Cal. Charter Schools Assn. v. Los Angeles Unified School Dist. (CCSA) (2015) 60 Cal.4th 1221 ...........................................................................................................9, 10, 15, 16 10 11 Cal. School Bds. Assn. v. State Bd. of Educ. (CSBA) (2010) 191 Cal.App.4th 530................................................................................................................8, 16 12 Cal. Teachers Assn. v. Hayes (1992) 13 5 Cal.App.4th 1513........................................................................................................................8 14 Carrancho v. California Air Resources Bd. (2003) 111 Cal.App.4th 1255..................................................................................................................15 15 County of San Diego v. State of California (2008) 16 164 Cal.App.4th 580....................................................................................................................14 17 Hall v. City of Taft (1956) 18 47 Cal.2d 177.................................................................................................................................8 19 Hudson v. County of Los Angeles (2014) 232 Cal.App.4th 392....................................................................................................................13 20 Kavanaugh v. West Sonoma County Union High School Dist. (2003) 21 29 Cal.4th 911 .............................................................................................................................14 22 Kong v. City of Hawaiian Gardens (2002) 23 101 Cal.App.4th 1317............................................................................................................12, 13 24 Lewis v. Superior Court (1999) 19 Cal.4th 1232 ...........................................................................................................................13 25 Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 26 130 Cal.App.4th 986............................................................................................................ passim 27 Scott v. Superior Court (1927) 28 83 Cal.App. 25 .............................................................................................................................13 3 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 Vallejo Police Officers Assn. v. City of Vallejo (2017) 15 Cal.App.5th 601......................................................................................................................13 2 Wilson v. State Bd. of Educ. (1999) 3 75 Cal.App.4th 1125......................................................................................................................7 4 CALIFORNIA STATUTES, REGULATIONS, AND RULES 5 Code Civ. Proc. 6 § 1064 ..........................................................................................................................................13 § 1085 ..........................................................................................................................................12 7 § 1094 ..........................................................................................................................................13 8 Code Regs., Title 5, § 11969.1 et seq. ....................................................................................... passim 9 Educ. Code 10 § 47614 ..........................................................................................................................................6 § 47614(a) ................................................................................................................................8, 16 11 § 47614(b) ........................................................................................................................... passim § 47614(b)(2) ...............................................................................................................................10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 I. INTRODUCTION 2 This case tracks a school district’s unlawful efforts to suppress and obstruct parental choice 3 and school success in an underserved community. It challenges the Respondent SFUSD’s failure to 4 provide mandatory public classroom facilities to a state-authorized public charter school in 5 accordance with the voter mandate of Proposition 39. SFUSD agreed that KIPP was obviously 6 entitled to a total of at least 10 rooms under the law, but when the District discovered that it could 7 not force the KIPP Bayview school to Treasure Island against its will, the District arbitrarily and 8 capriciously cut its classroom allocation by 40%—essentially choking off KIPP’s ability to serve 9 its students. That reduction violates the applicable law here, and would force children to dis-enroll 10 from their school of choice. 11 Despite voter mandate and judicial authority requiring that SFUSD make the same number 12 and quality of rooms available to KIPP students, SFUSD has provided merely six (6) rooms for 13 KIPP’s 116 students. Meanwhile, SFUSD awarded itself 14 rooms and plentiful ancillary space for 14 its own 103 District students at the same campus, and provides 13 rooms to another charter school 15 at a different Bayview location that enrolls merely 102 students. This is not the fair and equal 16 treatment mandated by Proposition 39. This case can probably be decided on these demonstrable, 17 indisputable observations alone. But it gets worse. 18 KIPP simply seeks a Writ of Mandate to compel SFUSD to perform its non-discretionary 19 duty to “make available . . . facilities sufficient for the charter school to accommodate all of the 20 charter school’s in-district students”, as required by the statewide ballot measure known as 21 Proposition 39. (Educ. Code § 47614(b).) Here, this equates to at least 10 rooms and office space 22 at the District’s Malcolm X campus in the Bayview. SFUSD indisputably determined that KIPP 23 Bayview is entitled to 10 rooms and office space for the upcoming school year, but packaged that 24 reality with an ill-conceived attempt to force the school from its home on the Malcolm X campus, 25 and instead isolate it on Treasure Island, even though KIPP Bayview’s students and families reside 26 in the Bayview. When KIPP resisted the unlawful ploy to make the school virtually inaccessible to 27 its students, SFUSD conceded its location misstep, but then retaliated by arbitrarily reducing 28 KIPP’s allotment to only six (6) rooms, which deprives the school of second and third grade 5 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 classrooms for its enrolled students, a room for the principal’s office, and a private room for 2 student counseling, mental health and pull-out services, and other essential student supports. 3 And there’s an added twist. More than two months after its obligation to provide a “final” 4 notification of space under Proposition 39, and weeks after this lawsuit was filed and served, 5 SFUSD attempted mid-June to unilaterally “revise” its “final” notification to provide two more 6 classrooms, and two tiny “half” rooms, all at a different, third location. Too little; too late. SFUSD 7 has entirely disregarded the statutory process, and still has not provided at least 10 equivalent 8 rooms to KIPP. SFUSD offered KIPP Bayview a little more space with a crammed down deadline 9 to accept in an attempt to avoid justice for the charter school in this matter. Proposition 39 is not 10 open-ended. It is a process that culminates with an April 1 final notification of facilities. 11 This petition seeks a writ compelling SFUSD to comply with its ministerial duties under 12 Education Code section 47614 and its implementing regulations (“Proposition 39”); there are no 13 material factual disputes. The law requires SFUSD to fairly share the Malcolm X campus with 14 KIPP Bayview, to provide KIPP Bayview’s students with the same number, size and quality of 15 rooms that they would have at a District-run school, and prohibits SFUSD from moving KIPP 16 Bayview from the Malcolm X campus. KIPP’s students actually outnumber the District’s students 17 at the campus. Thus, SFUSD has plainly violated its duties by providing KIPP merely six rooms 18 while hoarding 14 for itself; by excluding KIPP Bayview from the main offices and forcing its 19 principal and administrative team to use a food preparation room as an office, which SFUSD uses 20 daily for meal service at the campus; by withholding private space for KIPP Bayview to provide 21 confidential counseling and social services mandated by state and federal law, while the District 22 runs its own “Wellness Center” on the same campus for its students to receive those services; and 23 by attempting to remove KIPP Bayview from the Bayview community that it was explicitly 24 established to serve, and then again to a third location at another campus in Bayview. 25 The school year starts in only a few weeks. If SFUSD does not comply with the law and 26 provide 10 rooms by early July, KIPP Bayview students and their families will suffer great, 27 irreparable injury. This Court should issue a peremptory writ of mandate to compel SFUSD to 28 provide 10 rooms and office space to KIPP Bayview at the Malcolm X campus in accordance with 6 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 the Education Code. 2 II. BACKGROUND 3 A. Charter Schools Play an Important Role in Public Education 4 Charter schools are public schools and “part of California’s single, statewide public school 5 system.” (Wilson v. State Bd. of Educ. (1999) 75 Cal.App.4th 1125, 1137.) Charters are tuition- 6 free, non-discriminatory, and nonsectarian like school district-operated public schools, but have 7 autonomy to tailor their educational and operational approaches to meet the needs of their students 8 and community. KIPP Bayview was formed and tailored its educational program to serve students 9 and families in the vibrant and diverse Bayview-Hunters Point community. (Welch Dec. ¶ 6.) KIPP 10 offers a personalized learning environment and extended learning time to set its elementary school 11 students on a path for success in life, such as preparation for a college-focused middle school and 12 high school, and beyond. (Ibid.) In addition to teaching, KIPP Bayview offers a wide range of 13 supports, including mental health care and social services for its students and their families. (Ibid.) 14 In exchange for such flexibility, charter schools are held accountable for producing results. 15 This model fosters creativity and educational innovation, and has been extremely successful for 16 many charter school students in San Francisco who come from economically disadvantaged and 17 underserved communities. Given this success, many parents endeavor to place their children in 18 charter schools. With an educational program that includes comprehensive social emotional and 19 mental health supports, KIPP Bayview’s students are making progress and, as a result, the school 20 continues to grow, and will add a new grade level and increase enrollment this school year. (Ibid.) 21 Charter schools are in competition with traditional district-run schools by Legislative intent. 22 District schools compete with charter schools to attract student enrollment, which sometimes 23 creates a tense relationship between school districts and the charter schools that operate within their 24 boundaries. In fact, SFUSD rejected the KIPP Bayview charter in the first place, so now the school 25 is authorized directly by the State Board of Education. (Welch Dec. ¶ 4.) Despite this fact, KIPP 26 Bayview nonetheless must apply annually to the District for, and the District must supply, facilities 27 in accordance with the express requirements and process commonly known as Proposition 39.1 28 1 Proposition 39 is codified at Education Code § 47614. Proposition 39’s implementing regulations, cited herein as the 7 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 B. SFUSD Must Fairly Share Its Facilities with Charter Schools 2 SFUSD holds facilities as an agent of the state for the fair use of all students, including 3 those who attend KIPP Bayview. The Courts have consistently held that school districts like 4 SFUSD, although “separate political entities for some purposes,” “are the State’s agents for local 5 operation of the common school system.” (Butt v. State of California (1992) 4 Cal.4th 668, 681; 6 see, Hall v. City of Taft (1956) 47 Cal.2d 177, 181; Cal. Teachers Assn. v. Hayes (1992) 5 7 Cal.App.4th 1513, 1524-25, 1533 (“Local school districts remain agencies of the state rather than 8 independent, autonomous political bodies”).) “[A] school district is not a distinct and independent 9 body politic and is not free and independent of legislative control.” (Id. at 1524.) “The beneficial 10 ownership of property of the public schools is in the state.” (Hall, 47 Cal.2d at 181.) Thus, the 10 11 classrooms at Malcom X at issue are beneficially owned by the People for the benefit of all 12 students, including those who attend KIPP Bayview. 13 California voters approved Proposition 39 in November 2000, known as the “Smaller 14 Classes, Safer Schools and Financial Accountability Act”. Proposition 39 amended the California 15 Constitution to make it easier for school districts to construct new schools and modernize campuses 16 by lowering the required vote to approve local school bonds. School bonds now require only a 55% 17 majority voter-approval, rather than the two-thirds approval required for other taxes. Since then 18 and as recently as November 2016, San Francisco voters have approved over $2 Billion in bonds 19 for SFUSD to expand and modernize campuses, including classroom and administrative space 20 expansion, new building construction, and improved play areas and outdoor learning spaces at the 21 Malcolm X campus. (Ninkovic Dec. ¶ 27.) Families who choose to enroll at KIPP Bayview instead 22 of District-run programs are equally entitled to enjoy the fruits of those taxpayer dollars. 23 Proposition 39 bond funds do not come from or adversely affect the District’s operational general 24 fund—they come directly from property tax assessments. 25 In exchange for making it easier to tax and publicly fund school facility projects, the voters’ 26 express intent in approving Proposition 39 is for public school facilities to “be shared fairly among 27 all public school pupils, including those in charter schools.” (Educ. Code § 47614(a); Cal. School 28 “Regs”, are found in Cal. Code Regs., tit. 5, § 11969.1 et seq. 8 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 Bds. Assn. v. State Bd. of Educ. (CSBA) (2010) 191 Cal.App.4th 530, 539.) KIPP Bayview students 2 must receive the same number, size and quality of rooms that they would utilize at District-run 3 schools. (Educ. Code § 47614(b); Regs. § 11969.3.) SFUSD must give KIPP Bayview’s facilities 4 needs the same consideration as it gives its own needs at the Malcolm X campus. (Ridgecrest 5 Charter School v. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1001.) 6 Proposition 39 establishes a three-step process for SFUSD to allocate facilities. In short, 7 SFUSD must: (1) identify a group of “comparison schools”; (2) take inventory of the classrooms, 8 special instruction rooms (e.g., science and computer laboratories, and libraries) and “non- 9 teaching” space used for school administration, special education, meal service, multipurpose use, 10 play areas and athletic fields at the “comparison schools”; and (3) allocate KIPP Bayview a 11 proportionate share of those facilities based on its projected enrollment.2 (See, Regs. § 11969.3; 12 Bullis Charter School v. Los Altos School Dist. (2011) 200 Cal.App.4th 1022; Cal. Charter Schools 13 Assn. v. Los Angeles Unified School Dist. (CCSA) (2015) 60 Cal.4th 1221, 1241.) As explained 14 herein, SFUSD failed in its obligations, which it appears to misunderstand. In fact, its public 15 website incorrectly states that the District merely “should”—rather than “shall”—provide 16 equivalent facilities to charter schools. (Ninkovic Dec. ¶ 25.) 17 C. SFUSD Fails to Provide KIPP Bayview Equivalent Facilities and Share Space 18 KIPP Bayview is located at the Malcolm X campus. Despite KIPP’s growth (adding grade 19 levels each year as the students advance), SFUSD is offering the same, cramped space. During the 20 2019-20 school year, SFUSD enrolled 103 students at Malcolm X while KIPP Bayview enrolled 21 109 students at the same campus. (Ninkovic Dec. ¶ 5; Welch Dec. ¶ 9.) Even though KIPP has 22 more students, SFUSD occupied 14 of the campus’s 20 rooms and provided KIPP only six, with 23 one needed for special education.3 (Welch Dec. ¶¶ 10, 13.) Thus, KIPP Bayview has effectively 24 2 For accounting purposes, school enrollment is measured by “in-district average daily attendance” or “in-district 25 ADA”, meaning KIPP Bayview is allotted facilities for the average number of students who are on campus each day, and students who reside outside of the District’s boundaries do not count towards KIPP Bayview’s allotment. So a 100- 26 student school with average attendance rate of 96% has an “ADA” of 96 students. 3 Separately, SFUSD has complained that KIPP Bayview was previously given too much (i.e., “over-allocated”) space. 27 KIPP Bayview needs a dedicated room for special education services, just like SFUSD schools have. So, because KIPP Bayview used one of its classrooms for this mandatory purpose, the school had one fewer classrooms and was actually 28 under-allocated equivalent space for KIPP Bayview’s programs. They are doing the same thing for 2020-21. 9 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 only five classrooms while fewer District students enjoy 14—nearly three times as many. (Ibid.) 2 SFUSD deprives KIPP of comparable administrative space, too. Malcolm X staff occupy 3 the building’s entire main office, including the principal’s office, a separate teachers’ work room, 4 and another private room for SFUSD’s family liaison. (Welch Dec. ¶ 11.) Instead of fairly splitting 5 the office and other rooms, SFUSD allotted only a single room for all of KIPP’s administrative 6 staff to share as offices and for teacher preparation. (Welch Dec. ¶ 14.) The principal, assistant 7 principal, and entire student support team work in this one room, without internal walls. (Ibid.) 8 KIPP placed partitions in the room, but it lacks privacy for confidential meetings. (Welch Dec. ¶ 9 15.) Worse yet, SFUSD loads its food delivery trucks into this supposedly “confidential” room and 10 prepares meals for the campus each day. (Ibid.) This room is the most problematic and deficient 11 office space of all of Petitioner’s schools in San Francisco, including two other schools in the 12 Bayview. (Ninkovic Dec. ¶ 8.) 13 SFUSD also deprives KIPP’s students of comparable space for counseling, mental health 14 services, pull-out services, and meeting with the school social worker. SFUSD operates a Wellness 15 Center at Malcolm X for these purposes. (Welch Dec. ¶ 12.) The center includes at least two 16 private spaces, and SFUSD uses both. (Ibid.) Rather than splitting the rooms, SFUSD withheld the 17 private space altogether and KIPP’s students are forced to use a small storage closet, or former 18 restroom, for these necessary services. (Welch Dec. ¶ 16.) KIPP Bayview’s rooms are also smaller 19 and hold fewer students than SFUSD’s rooms, particularly the special education room which is too 20 small to accommodate KIPP Bayview’s average class size. (Ninkovic Dec. ¶ 7.) KIPP’s space is 21 simply not comparable, and therefore legally deficient. 22 D. KIPP Bayview Submitted Enrollment Projections for the 2020-21 School Year, 23 and SFUSD Determined 10 Rooms Were Required 24 Proposition 39 provides an annual process for facilities allocation, based upon charter 25 enrollment projections for the coming school year. (Educ. Code § 47614(b)(2).) On November 1, 26 2019, KIPP Bayview timely requested facilities for its in-district ADA that would increase to 116 27 students for the 2020-21 school year. (Ninkovic Dec. ¶ 9, Exh. 5.) KIPP Bayview expressed its 28 desire, and legal requirement, to remain at the Malcolm X campus, with equivalent rooms for a 10 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 computer lab, science lab, administrative space, counseling and faculty collaboration, and an 2 “additional private space for confidential counseling sessions with students and families” to meet 3 its students’ “significant need for mental health services, pull-out services, and additional 4 supports.” (Ninkovic Dec. ¶ 10, Exh. 5.) Despite the opportunity, SFUSD did not express any 5 objections, so KIPP’s projections “are no longer subject to challenge, and the school district shall 6 base its offer of facilities on those projections.” (Regs. § 11969.9(d).) 7 On January 31, 2020, SFUSD issued its proposal mandated by Proposition 39, wherein the 8 District unequivocally determined that 10 rooms and office space are necessary based on KIPP 9 Bayview’s projected in-district ADA. (Ninkovic Dec. ¶ 12, Exh. 6.) Although SFUSD failed to 10 describe how it calculated the allotment, as legally required, KIPP ran its own calculations and 11 determined that 10 rooms and office space was sufficient for its program, although not sufficient 12 under Proposition 39. (Ninkovic Dec. ¶ 15-17.) In any event, KIPP Bayview timely accepted the 10 13 rooms and other facilities on February 27, 2020, except for the attempt to force relocation of the 14 Bayview families to Treasure Island. (Ninkovic Dec. ¶ 18, Exh. 8.) 15 E. SFUSD Arbitrarily Cut the 10 Rooms to Six, Contrary to Proposition 39 16 Despite offering an acceptable number of rooms, the proposal violated other provisions of 17 Proposition 39. Significantly, SFUSD sought to arbitrarily force KIPP Bayview to Treasure Island 18 without articulating any necessity for doing so, stating merely that the “Preliminary Offer does not 19 meet Charter School’s Request” to remain at Malcolm X. (Ninkovic Dec. ¶ 14, Exh. 6.) As a matter 20 of law, SFUSD “shall not move the charter school unnecessarily.” (Educ. Code § 47614(b).) The 21 attempt was arbitrary and capricious on its face. KIPP timely responded to this legal deficiency by 22 proposing that SFUSD allocate the agreed-upon, and accepted, 10 rooms at the Malcolm X 23 campus. (Ninkovic Dec. ¶ 18, Exh. 8.) 24 On April 1, 2020, SFUSD recanted its arbitrary attempt to force Treasure Island, and agreed 25 that Malcom X must continue to be KIPP’s home. (Ninkovic Dec. ¶ 19, Exh. 9.) SFUSD agreed, 26 again, with KIPP Bayview’s ADA projection. (Ibid.) Yet, SFUSD inexplicably and arbitrarily 27 offered only six rooms based on 116 in-district ADA, despite determining only two months earlier 28 in the same Proposition 39 process that the same projection required 10 rooms. (Ninkovic Dec. ¶ 11 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 20.) The notification failed to provide any findings to support the drastic 40% reduction in rooms, 2 failed to allot special instruction rooms and “non-teaching” spaces, ignored KIPP Bayview’s 3 specific request for private space for student support services, and failed to comply with 4 Proposition 39. SFUSD utterly failed to explain “how the facilities will be allocated between the 5 charter school and the district-run schools.” (Ridgecrest, 130 Cal.App.4th at 1006.)4 6 At the same time, SFUSD offered 13 rooms to a different, smaller charter school that 7 projected an in-district ADA of only 102 students, and it was for facilities at one of the comparison 8 schools that SFUSD allegedly used to calculate KIPP Bayview’s facilities. (Ninkovic Dec. ¶ 26, 9 Exh. 13.) And of course, SFUSD itself enjoys 14 rooms for its own 103-student program at the 10 Malcolm X campus. 11 SFUSD’s final notification of space put KIPP Bayview between the proverbial rock and 12 hard place, having to either accept an inadequate allocation of six rooms or have no facilities at all. 13 On April 28, 2020, KIPP Bayview accepted SFUSD’s reduced facilities offer under protest. 14 (Ninkovic Dec. ¶ 23, Exh. 10.) After SFUSD rejected KIPP’s final demand for compliance, this 15 lawsuit followed. 16 III. JUDGMENT ON THE WRIT, AND STANDARD OF REVIEW 17 A. Courts Issue Writs of Mandate to Enforce Proposition 39 18 “Code of Civil Procedure section 1085 permits the issuance of a writ of mandate ‘to compel 19 the performance of an act which the law specially enjoins.’” (Kong v. City of Hawaiian Gardens 20 (2002) 101 Cal.App.4th 1317, 1325 citing Code Civ. Proc. § 1085(a).) “Courts have recognized 21 implicitly the right to enforce through traditional mandamus proceedings a school district’s 22 obligations under Proposition 39.” (Bullis, 200 Cal.App.4th at 1036.) Mandamus is appropriate 23 where a school district acts “without due regard for the petitioner’s rights,” by failing to offer or 24 4 Viewed in light most favorable to the District, SFUSD appears to be considering only “available” or “unused” school 25 space at the campus. That is not the correct legal standard. Before the voters adopted Proposition 39, a charter school’s right to use school district facilities was “very limited initially; a charter school was entitled to use district facilities 26 only if that would not interfere with the district’s use of them. This restriction was effectively eliminated by Proposition 39.” (Ridgecrest,130 Cal.App.4th at 998-99.) Now, a charter school’s right to equitably share school 27 district facilities is unequivocal and mandatory, even if it might cause “disruption and dislocation” of district students. (Id. at 1000.) Here, disruption is not really an issue, because only 103 students attend the District-run program at the 28 Malcolm X campus. 12 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 provide equivalent facilities, or otherwise fails to comply with Proposition 39. (Id. at 1064, 2 citations omitted.) 3 In a traditional mandamus proceeding, the trial court reviews an administrative action “to 4 determine whether the agency’s action was arbitrary, capricious, or entirely lacking in evidentiary 5 support, contrary to established public policy, unlawful, procedurally unfair, or whether the agency 6 failed to follow the procedure and give the notices the law requires.” (Vallejo Police Officers Assn. 7 v. City of Vallejo (2017) 15 Cal.App.5th 601, citations omitted.) A writ must issue “where the 8 petitioner has no plain, speedy and adequate alternative remedy, the respondent has a clear, present 9 and usually ministerial duty to perform, and the petitioner has a clear, present and beneficial right 10 to performance.” (Kong, 101 Cal.App.4th at 1325, citations omitted; Hudson v. County of Los 11 Angeles (2014) 232 Cal.App.4th 392, 408-09 [a writ “becomes a matter of right when the plaintiff 12 shows that ‘there is not a plain, speedy, and adequate remedy, in the ordinary course of law.’”], 13 quoting Code Civ. Proc. § 1086.) Here, SFUSD failed to proceed in a manner required by law, and 14 acted in an arbitrary and capricious manner in that regard. 15 B. Motion for Judgment Pursuant to Section 1094 16 If a petition for a writ of mandate “presents no triable issue of fact or is based solely on an 17 administrative record, the matter may be determined by the Court by noticed motion of any party 18 for a judgment on the peremptory writ.” (Code Civ. Proc. § 1094.) A court may “render judgment 19 on the writ petition after considering [the petition] together with the papers” included with the 20 motion pursuant to section 1094. (Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1246 fn 7.) A 21 Section 1094 motion for judgment on the peremptory writ is a “special proceeding” that is the 22 equivalent of a “trial on the merits.” (Code Civ. Proc. §§ 1064, 1094; see, Scott v. Superior Court 23 (1927) 83 Cal.App. 25, 30-31 (section 1094 is a “special provision” distinct from other rules of 24 practice, and the judgment is a “final determination of the rights of the parties”).) This case 25 presents no triable issue of fact and as such may be determined by this Court by the instant motion 26 for judgment pursuant to Code of Civil Procedure section 1094. 27 C. Standard of Review 28 SFUSD failed to proceed in a manner required by law, and thus acted in an arbitrary and 13 MEMORANDUM OF POINTS AND AUTHORITIES ISO MOTION FOR JUDGMENT ON PEREMPTORY WRIT CASE NO. CPF-20-517094 1 capricious manner. SFUSD’s duty here was ministerial. “Courts have defined a ministerial act as 2 ‘an act that a public officer is required to perform in a prescribed manner in obedience to the 3 mandate of legal authority and without regard to his own judgment or opinion concerning such 4 act’s propriety or impropriety, when a given state of facts exists.’ [Citation.] (Kavanaugh v. West 5 Sonoma County Union High School Dist. (2003) 29 Cal.4th 911, 916).” (Bullis, 200 Cal.App.4th at 6 1035.) “Thus, ‘[w]here a statute or ordinance clearly defines the specific duties or course of 7 conduct that a governing body must take, that course of conduct becomes mandatory and 8 eliminates any element of discretion.’ [Citation.]” (Id. at 1035, citing Carrancho v. California Air 9 Resources Bd. (2003) 111 Cal.App.4th 1255, 1267.) 10 However, even if reviewed as an abuse of discretion, SFUSD’s action is arbitrary and 11 capricious. Proposition 39 requires SFUS