casesPriscillaWinslowCTAheadcounsel

1.        Sunnyvale Unified School Dist. v. Jacobs, H031721, COURT OF
APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT, 171 Cal. App. 4th
168; 89 Cal. Rptr. 3d 546; 2009 Cal. App. LEXIS 178; 186 L.R.R.M. 2116,
February 18, 2009, Filed, Request denied by Sunnyvale Unified School
District v. Jacobs (Michael), 2009 Cal. LEXIS 6602 (Cal., June 10, 2009)
Priscilla Winslow for Plaintiff and Appellant, for Defendants and ...

Warning: Negative treatment is indicated. Click to Shepardize®

2.        San Leandro Teachers Assn. v. Governing Bd. of San Leandro Unified
School Dist., A114679 & A115686, COURT OF APPEAL OF CALIFORNIA,
FIRST APPELLATE DISTRICT, DIVISION ONE, 154 Cal. App. 4th 866; 65 Cal.
Rptr. 3d 288; 2007 Cal. App. LEXIS 1415; 185 L.R.R.M. 2058, August 28,
2007, Filed,

NOT CITABLE—SUPERSEDED BY GRANT OF REVIEW , Review granted,
Depublished by San Leandro Teachers Association v. Governing Board of
the San Leandro Unified School, 68 Cal. Rptr. 3d 528, 171 P.3d 545, 2007
Cal. LEXIS 13320 (Cal., 2007)Later proceeding at San Leandro Teachers
Association v. Governing Board of the San Leandro Unified School District,
2007 Cal. LEXIS 14356 (Cal., Dec. 14, 2007)Later proceeding at San
Leandro Teachers Association v. Governing Board of the San Leandro
Unified, 2008 Cal. LEXIS 2078 (Cal., Feb. 14, 2008)Application granted by
San Leandro Teachers Association v. Governing Board of the San Leandro
Unified School District, 2008 Cal. LEXIS 6218 (Cal., May 22, 2008)Application
granted by San Leandro Teachers Association et al. v. Governing Board of
the San Leandro Unified School District et al., 2008 Cal. LEXIS 6232 (Cal.,
May 22, 2008)Request granted, Request denied by San Leandro Teachers
Association v. Governing Board of the San Leandro Unified School District,
2009 Cal. LEXIS 4580 (Cal., Apr. 24, 2009)Later proceeding at San Leandro
Teachers Association v. Governing Board of the San Leandro Unified School
District, 2009 Cal. LEXIS 5191 (Cal., May 5, 2009)Affirmed by, Superseded by
San Leandro Teachers Ass'n v. Governing Bd. of the San Leandro Unified
Sch. Dist., 2009 Cal. LEXIS 5417 (Cal., June 18, 2009)
... and Appellants.California Teachers Association, Priscilla S. Winslow,
Beverly Tucker, Ballinger G. Kemp and Ramon ...
Positive treatment is indicated. Click to Shepardize®

3.        California Teachers Assn. v. Public Employment Relations Bd.,
G040106, COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE
DISTRICT, DIVISION THREE, 169 Cal. App. 4th 1076; 87 Cal. Rptr. 3d 530;
2009 Cal. App. LEXIS 2; 185 L.R.R.M. 2805, January 5, 2009, Filed, Review
denied by, Request denied by California Teachers Association v. Public
Employment Relations Board, 2009 Cal. LEXIS 3848 (Cal., Apr. 15, 2009)
Rosalind Wolf; Joseph R. Colton and Priscilla Winslow for Petitioner.
Tami R. Bogert, General Counsel, ...
Citing Refs. With Analysis Available. Click to Shepardize®

4.        Adair v. Stockton Unified School Dist., C054294, COURT OF
APPEAL OF CALIFORNIA, THIRD APPELLATE DISTRICT, 162 Cal. App. 4th
1436; 77 Cal. Rptr. 3d 62; 2008 Cal. App. LEXIS 747, May 19, 2008, Filed,
Writ denied by, Request denied by Adair (George W.) v. Stockton Unified
School District, 2008 Cal. LEXIS 9799 (Cal., Aug. 13, 2008)
... California Teachers' Assn. v. Parlier Unified School Dist. (1984) 157 Cal.
App. 3d 174, 183 & fn. 6 [204 Cal. Rptr. 20]; Winslow v. San Diego
Community College Dist. (1979) 97 Cal. App. 3d 30, 38–39 [158 Cal. Rptr.
509] ...

Link to search of California Court of Appeal

Priscilla Winslow
California Teachers Association asst head counsel
(temporarily in charge when Beverly Tucker retired)

CALIFORNIA
SCHOOL BOARDS
ASSOCIATION et al.,
Petitioners and
Appellants,
v.
STATE BOARD OF
EDUCATION,
Respondent;
ASPIRE PUBLIC SCHOOLS, INC.,
Real Party in Interest and Respondent.

No. A122485.
Court of Appeals of California, First
District, Division Four.
Filed July 26, 2010.
Certified for Publication

Deborah B. Caplan, N. Eugene Hill,
Richard C. Miadich, Olson, Hagel &
Fishburn, LLP,
Joseph R. Colton,
Priscilla Winslow,
Attorney for Appellants California
School Boards Association,
Association of California School
Administrators, Stockton Unified
School District, California Teachers'
Association.

Edmund G. Brown, Jr., California
Attorney General, Susan M. Carson,
Supervising Deputy Attorney General,
Benjamin J. Riley, Deputy Attorney
General, Paul C. Minney, Andrew G.
Minney, Middleton, Young & Minney,
LLP., Attorney for Respondents
California State Board of Education,
Aspire Public Schools, Inc.

RIVERA, J.

Charter schools are public schools
that operate independently from, but
with oversight by, the school districts
or county boards of education that
approve their charters. Before 2002,
charter schools operated without
geographic restrictions; a school
chartered in Los Angeles could
operate "satellite" campuses as far
away as Palo Alto or Mendocino.[ 1 ] In
2002, after it came to light that a
school chartered in Fresno but
operating satellites in far-flung
locations had accumulated $1.3
million in debt and was involved in
other irregularities,[ 2 ] the Legislature
amended the Charter Schools Act of
1992 (Ed. Code,[ 3 ] § 47600 et seq.)
(CSA) to require that charter schools
be located within the districts or
counties where they are chartered
(see, e.g., §§ 47605, subd. (a)(1),
47605.1). The Legislature also added
section 47605.8. Subdivision (a)
authorized the State Board of
Education (the State Board) to approve
statewide charters that would allow a
school to operate without the
geographic restrictions. Subdivision
(b), however, provided that the State
Board could not approve a statewide
charter unless it first made a finding
that "the proposed state charter
school will provide instructional
services of statewide benefit that
cannot be provided by a charter school
operating in only one school district, or
only in one county."

In 2007 the State Board approved a
statewide charter for Aspire Public
Schools, Inc. (Aspire). The California
School Boards Association (CSBA)
and others filed an action challenging
this approval, contending that the
State Board failed to determine and
make a finding that Aspire's
instructional services of a statewide
benefit could not be provided through
individual charters from local school
districts. The State Board and Aspire
demurred. They contended, and the
trial court ruled, that section 47605.8,
subdivision (b) requires the State
Board to find the proposed charter
school will provide "instructional
services of statewide benefit," but
does not require the Board to find, in
addition, that the statewide benefit
could not be provided through locally
approved charters. We conclude that
such a finding is required and,
accordingly, we reverse.

The petition and complaint contains
two other causes of action seeking
mandamus. Petitioners allege: (1) the
State Board has failed and refused to
enforce the conditions of approval
imposed on Aspire's charter and
should be compelled to do so; and (2)
the State Board used policies and
procedures in connection with its
consideration of statewide charter
petitions that have not been adopted
in accordance with the Administrative
Procedure Act (Gov. Code, § 11340 et
seq.) (APA) and, therefore, the State
Board should be compelled to set
aside its approval of Aspire's charter.
The trial court sustained demurrers to
these causes of action. We reverse as
to these claims as well.

I. PARTIES TO THE ACTION

CSBA, the California Teachers'
Association, the Association of
California School Administrators,
and the Stockton Unified School
District (SUSD) (collectively referred
to as petitioners) sued the State
Board as respondent/defendant and
Aspire as real party in interest,
seeking a writ of mandate and
injunctive and declaratory relief. The
State Board and Aspire will be
referred to collectively as
respondents...

The 2002 amendments provided that,
from and after July 1, 2002, a school
chartered by a district must identify a
"single charter school that will operate
within the geographic boundaries of
that school district." (§§ 47605, subd.
(a)(1), 47605.1, subd. (a)(1).)...

3. The Parties' Contentions

At the heart of petitioners' claim is the
interpretation of this statutory
provision: "The [State Board] may not
approve a petition for the operation of
a state charter school under this
section unless [it] finds that the
proposed state charter school will
provide instructional services of
statewide benefit that cannot be
provided by a charter school operating
in only one school district, or only in
one county." (§ 47605.8, subd. (b).)..

According to respondents: The State
Board must find that the proposed
charter school will provide
"instructional services of statewide
benefit," and that it cannot provide that
benefit "through a charter that only
allows the [applicant] to operate in one
location." (Italics added.) In other
words, the State Board must find that
"the instructional services the
[applicant] proposes will offer a
statewide benefit that would be
frustrated if the petitioner was only
allowed to open a school in one
county or [in one] district."

We note, parenthetically, that this was
not respondents' position in the trial
court. There, they argued that the State
Board's "only legal obligation under
section 47605.8 was to make a
finding that Aspire would provide a
statewide benefit prior to approving
the charter." They contended the
statute did not require the State Board
to "explain why Aspire could not
instead operate each of its schools
under individual charters approved by
local school districts."

At oral argument respondents'
counsel sought to clarify this apparent
inconsistency, explaining that it was
respondents' intent to make the same
argument on appeal as was made
below. In either event, we conclude
respondents' construction of the
statute is insupportable.
4. Statutory Language
a. Operating in Only One School
District or in Only One County

The statute is not a model of clarity.
The phrase "that cannot be provided
by a charter school operating in only
one school district, or only in one
county" is, on its face, conducive to the
kind of literal construction
respondents espouse, i.e., a finding
that "the [applicant] will provide a
statewide benefit that cannot be
achieved through a charter that only
allows the [applicant] to operate in one
location." (Italics added.) But this
interpretation necessarily presumes
that a charter school entity can be
restricted to operating in "only . . . one
location." As has been noted, the CSA
neither prohibits nor discourages a
charter school from operating in
multiple school districts under local
charters. Indeed, as of 2005 Aspire
itself was operating 17 schools
around the state, chartered by seven
different school districts. We therefore
reject this interpretation of the statute
as being inconsistent with the
statutory scheme.

Although the terminology is awkward,
we agree with petitioners that the
phrase "operating in only one school
district, or only in one county" (§
47605.8, subd. (b)) refers to each
school proposed under the statewide
charter. In other words, approval of a
statewide charter petition would
require a finding that the school's
"instructional services of statewide
benefit" (ibid.) cannot be provided if
the proposed schools (e.g., one
located in the LAUSD, one in the San
Francisco Unified School District, and
one in the SUSD) were operated
under charters from those districts.[
13 ] This interpretation of the phrase,
unlike respondents' interpretation, is
consistent with other provisions of the
CSA. It also makes practical sense
because the statute contemplates that
a statewide charter will operate in
"multiple sites throughout the state."
(§ 47605.8, subd. (a).) It follows that
the law would require the State Board
to make a finding as to whether the
applicant could achieve that same
statewide benefit operating each of its
proposed schools under local district
or county charters.
b. The Finding Requirement of Section
47605.8, Subdivision (b)

At oral argument respondents argued,
as they did below, that the statute
requires the State Board to make only
one finding—that the applicant's
instructional services will provide a
statewide benefit—and does not
require the State Board to make an
additional finding that the statewide
benefit cannot be provided if the
school operated under local charters.
Respondents' reasoning is this:
"instructional services of statewide
benefit that cannot be provided by a
charter school operating [under local
charters]" is a single finding, not a
dual one, that is, section 47605.8,
subdivision (b) defines "instructional
services of statewide benefit" as a
benefit that "cannot be provided by a
charter school operating [under local
charters]"; therefore, once a "statewide
benefit" has been found the statute's
requirements have been satisfied.

We see nothing in the statute's plain
language, in the statutory scheme of
the CSA, or in the legislative history of
section 47605.8 that suggests this
was what the Legislature intended. If
the lawmakers intended to define
statewide benefit as a "benefit that
cannot be provided by a charter school
operating [in local districts]" then
presumably they would have so
stated. Instead the Legislature
provided that a statewide charter could
not be approved unless the State
Board "finds that the proposed state
charter school will provide
instructional services of statewide
benefit that cannot be provided by a
charter school operating [under local
charters]." (Italics added.) The plain
meaning of these words invokes a
two-step analysis.

Additionally, respondents provide us
with nothing in the statute, the CSA, or
the legislative history that would
support a conclusion that statewide
benefits cannot be achieved under a
series of local charters. In fact,
respondents have conceded that
Aspire's statewide instructional
program could possibly (though not
likely) be achieved through a series of
local charters. If this is so, then the
statute cannot mean what
respondents say it means—that a
"statewide benefit" is, by definition, a
benefit that cannot be achieved under
local charters.[ 14 ]

In sum, we conclude the plain
language of the statute requires the
State Board to find, before approving a
statewide charter, that the applicant's
instructional services will provide a
statewide benefit, and that the benefit
is one that cannot be provided under
local charters. This interpretation is
also reinforced by the statutory
scheme, the structure of which reflects
a preference for locally chartered
schools.
5. Statutory Scheme

Section 47605 governs the approval of
district charters. It provides that local
school districts, in reviewing charter
petitions, "shall be guided by the intent
of the Legislature that charter schools
are and should become an integral
part of the California educational
system and that establishment of
charter schools should be
encouraged." (§ 47605, subd. (b).)
Local school districts are therefore
mandated to approve charters that
meet statutory requirements and are
consistent with sound educational
practices. (Ibid. ["shall grant a charter
for the operation of a school . . .,"
italics added].) Denial of a charter is
not permitted except upon the
issuance of "written factual findings,
specific to the particular petition,
setting forth specific facts to support
one or more of the [statutorily
enumerated] findings." (Ibid.)

The legislative policy with respect to
statewide charters is the mirror image
of the policy regarding district charters.
Section 47605.8, subdivision (b)
prohibits the approval of a statewide
charter petition unless specific
findings can be made ("[t]he [State
Board] may not approve a petition . . .
unless . . .," italics added). Noticeably
absent from the statute is any
language requiring the State Board to
be guided by the legislative intent that
establishment of statewide charter
schools should be encouraged. And,
in contrast to provisions strictly limiting
the grounds for the denial of a district
charter, the State Board is never
required to approve a statewide
charter petition, and may deny the
petition on any ground which the State
Board finds to be justified. (Id., subd.
(d), incorporating by reference §
47605.6, subd. (b); see also §
47605.6, subd. (b)(6).)[ 15 ]

Despite the Legislature's distinctly
different approaches to district and
statewide charters, respondents
categorically reject the notion that the
CSA expresses a preference for local
charters because, as they argue, "the
substantive requirements for charter
school approval are the same for local
and state charter schools." (Italics
added.) The fact that all charter
schools must satisfy uniform
standards is neither surprising nor
relevant. The critical question in this
matter is whether the CSA is designed
to encourage local chartering. That
question is not affected by the
substantive requirements for charter
schools.

We also reject respondents'
characterization of section 47605.8 as
"an indisputable legislative mandate
to the [State] Board to authorize state
charter schools that may operate
without geographic or site limitations,"
as well as their contention at oral
argument that the authorization of
statewide charters was one of the
primary objectives of the 2002
amendments. It seems to us unlikely
that the Legislature would use
proscriptive terms ("may not approve
[a statewide charter] unless . . .") to
declare a mandate. (§ 47605.8, subd.
(b).) Additionally, the notion that the
statute constitutes a "mandate" runs
contrary to the legislative history which
shows that the primary impetus
behind the 2002 amendments was to
tighten oversight of charter schools by,
inter alia, prohibiting the
establishment of schools that would
operate in locations geographically
distant from their chartering agencies.[
16 ] (Sen. Education Analysis of
Assem. Bill No. 1994, supra, p. 2.)

This statutory scheme, we conclude,
reflects an intent to promote district
chartered schools and local oversight
while allowing for limited exceptions.
Section 47605.8 is one such
exception, permitting the
establishment of a charter school with
no geographic restrictions only if it
offers instructional services of a
statewide benefit and only if that
benefit would be frustrated if it
operated its schools under district (or
county) charters.
6. Respondents' Other Contentions

Respondents point to the regulation
adopted by the State Board that
requires statewide charter applicants
to "[d]emonstrate success in
operating charter schools previously
approved in California." (Regs., §
11967.6, subd. (a)(7).) This regulation,
respondents argue, negates the
notion that the CSA favors local
charters because this would place
statewide charter applicants in a
Catch-22—"although the regulations
require that they demonstrate success
in operating previously approved
charter schools, that same success
would . . . constitute a valid reason to
deny such petitioners."

We think respondents' argument gives
undue weight to this section of the
regulation. But that is of no moment.
Whatever bearing the regulation may
have on the approval or denial of a
statewide charter, it cannot control the
statute's meaning. The scope or intent
of a statute cannot be diminished or
altered by a regulation purporting to
interpret or implement it. (Morris v.
Williams (1967) 67 Cal.2d 733, 748
[regulation cannot alter or amend a
statute or enlarge or impair its scope].)

Respondents assert as "obvious" the
proposition that section 47605.8 was
adopted to "provide[] a mechanism for
charter school operators to avoid the
patchwork quilt of local school district
approval. If plaintiffs had their way,"
respondents argue, "Aspire would be
required to open each and every
campus pursuant to different local
chartering agencies, each with their
own unique approval processes,
oversight mechanisms, academic
reporting requirements, special-
education arrangements, and
admission preferences—thus
eliminating the uniform, statewide
nature of Aspire's educational
program." (Italics omitted.)

First, as we have already noted, the
2002 amendments were specifically
designed to encourage locally
chartered schools and to impose
geographic restrictions on charter
school operations that would help to
"clarify a district's sovereignty over
public education provided within its
boundaries and to enhance oversight
of charter schools." (Sen. Finance
Analysis of Assem. Bill No. 1994,
supra, p. 1.) Having chosen to impose
such restrictions, it would make no
sense for the Legislature to
simultaneously create "a mechanism
for charter school operators to avoid . .
. local school district approval." We
read section 47605.8 as an exception
to the CSA's chartering scheme, not
as an equally available option for
establishing a charter school...

Respondents assert that the ACCS
simply "applied the formally adopted
regulations" when it "analyzed Aspire's
petition."

Respondents, however, do not cite to
anything in the record that would
support this assertion.[ 25 ] Our own
review of the record has uncovered
nothing that describes the "`policies,
procedures, standards, criteria,
regulations and evaluation
instruments'" (Engelmann, supra, 2
Cal.App.4th at p. 62) used by the
ACCS to "implement, interpret, or
make specific" (Gov. Code, §
11342.600) section 47605.8 when it
analyzed Aspire's petition and made
its recommendation...l

Additionally, the record does not
support respondents' characterization
of the ACCS's action as being limited
to making a recommendation that
applied statutory and regulatory
criteria to Aspire's petition. It appears,
rather, that the ACCS took a far more
hands-on approach. There is
evidence that the chair of the ACCS
reviewed a draft of Aspire's charter
petition and sent a detailed e-mail to
the CEO of Aspire advising him on
how the petition could be improved...

Petitioners have alleged that they are
directly affected by the approval of
statewide charter schools and have
an interest in ensuring their
legitimacy. These allegations are
sufficient to overcome the State
Board's contention on demurrer that
the policies and procedures governing
the ACCS's review of and
recommendations on statewide
charters are merely matters of internal
management.
VI. CONCLUSION AND DISPOSITION

The demurrers to the first three
causes of action should not have
been sustained. Accordingly, we
reverse as to those causes of action
and also as to the fourth and fifth
causes of action seeking injunctive
and declaratory relief predicated on
the same allegations.

The judgment is reversed and the
cause is remanded.

We concur:

RUVOLO, P.J.

SEPULVEDA, J.

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