AB 165 + STUDENT FEE LITIGATION UPDATE

from EdLawConnect | http://bit.ly/tRcm9p

By Mark Bresee, Partner
and Cathie Fields, Senior Associate

Education Law Practice Group
Atkinson, Andelson, Loya, Ruud & Romo - Irvine Office

Tuesday, November 22, 2011After the initial publicity surrounding Governor Brown’s unexpected veto of the student fee legislation, AB 165, there was a bit of a lull in the media attention paid to the topic. Thankfully, though, the veto and some misinformation reported in the media immediately after − e.g., a blog post headline stating AB 165 was a bill “banning pay-for-play sports fees,” when such fees have been explicitly banned since 1984 − have not resulted in districts retreating from their efforts to address the issue and achieve 100% compliance.

The issue is emerging again: The CDE recently issued an updated guidance on fees, and a recent news report correctly noted the ACLU lawsuit against the State has now resumed.

To review briefly, the original September 2010 suit was filed against the State and the Governor. Then-Governor Schwarzenegger quickly entered into a proposed settlement, to be implemented through legislation that became AB 165. Upon taking office the Brown administration balked at the settlement, asserting that the Governor was not the correct target. When the judge in the case signaled his agreement, the settlement fell apart and an amended complaint was filed, naming as defendants the State, the California Department of Education (CDE), the Superintendent of Public Instruction (SPI), and the State Board of Education (SBE). All of those defendants have filed demurrers to the amended complaint, seeking dismissal of the suit. A hearing is scheduled for January 25, 2012. Some of the arguments in the demurrers remind us that the stakes for school districts and county offices remain high.

The demurrer filed by the State asserts it is not a necessary or proper party in the lawsuit, based on the separation of powers doctrine and because the suit names state officers and agencies with administrative functions. In arguing the State is not an “indispensable party” to the lawsuit, the demurrer does not mention individual school districts. The same is not true of the demurrer filed by the CDE, SPI and SBE, all represented by attorneys at the CDE. These state defendants contend that “not only does the [lawsuit] fail to allege any improper action on the part of the [state] defendants, it fails to allege what the . . . defendants should have done − and under what authority.” Running throughout the demurrer is the explicit assertion that the finger should be pointed at individual districts. These defendants assert that the State has no obligation to enforce the “free school guarantee,” and that “local school districts have the power and authority to cure the alleged problems.” Noting that Hartzell v. Connell was filed against an individual school district, and that decision did not assert the State is responsible for enforcement, they argue that the suit is “fundamentally about fees charged by those school districts” the plaintiffs attend and that the individual school districts are indispensable parties. This argument is consistent with the language and tenor of Governor Brown’s AB 165 veto message. (See our post on the veto here).

To state the obvious, the path this litigation will take and the ultimate impact on districts and county offices remain unpredictable. The plaintiffs, in opposing the demurrers, make a cogent and forceful argument that the individual school districts are not indispensable parties, asserting, “This case is about the State’s duty to intervene when violations of students’ fundamental educational rights occur, and school districts are not indispensable to an action focused exclusively on the scope of the state’s constitutional duties and the form of relief available against the State and its agencies.” However, if this argument is accepted by the court, it simply begs the question what state intervention and enforcement would look like.

Another possibility, perhaps remote, is the Williams example. The complaint in that case identified plaintiffs in eighteen school districts, and the response of the state defendants was to file a cross-complaint against all eighteen of those districts, asserting that “the State of California has a direct interest in ensuring” the districts comply with the law, and that “if plaintiffs are correct” it is the districts that have “violated [their] duties and obligations under applicable statutes and regulations.”

Perhaps the only safe prediction, regardless of how the litigation unfolds, is that the eyes of the ACLU, the State, the Governor, and the citizen watchdogs will remain focused on local district and county office practices.