Graham v. Cal. Bd. of Educ.

JACK GRAHAM, Plaintiff and Appellant, v. CALIFORNIA BOARD OF EDUCATION, et al., Defendants and Respondents.

B245288

COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION EIGHT

Filed: May 8, 2014

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County

Super. Ct. No. BC482694)

APPEAL from a judgment of the Superior Court of Los Angeles County. Malcolm Mackey, Judge. Affirmed.

Jack Graham, in pro per.

Amy Bisson Holloway, General Counsel, Edmundo Aguilar, Assistant General Counsel and Jamie M. Errecart, Deputy General Counsel for Defendants and Respondents.

INTRODUCTION

Plaintiff and appellant Jack Graham is a tutor and substitute teacher. In 2010 and again in 2011, he applied to be added to California's list of approved providers of supplemental education services (SES), which the state is required to maintain as a condition of receiving federal funding pursuant to the No Child Left Behind Act (NCLB) (20 U.S.C. § 6301, et seq.).¹ Both applications were rejected as "incomplete" by defendant and respondent the California Department of Education (the Department). Plaintiff filed this action in 2012. The complaint names as defendants the Department, the California Board of Education (the Board), the former Superintendent of Public Instruction (Jack O'Connell), the current Superintendant of Public Instruction (Tom Torlakson), the Director of the Department's District and School Improvement Division (Fred Balcom), and former and current (as of the time the complaint was filed) members of the Board (collectively, defendants).² It alleges causes of action for violation of plaintiff's rights to free speech, to work and to equal protection under Title 42 of the United States Code section 1983 (§ 1983) and the California Constitution, governmentwaste in violation of Code of Civil Procedure section 526a and unfair competition.³ The gravamen of plaintiff's claims is that the criteria developed by defendants to evaluate SES provider applications is unreasonable and inconsistent with the federal standards; but for the challenged criteria, plaintiff's application would be complete; and defendants should be ordered to accept and approve his application to be added to the list of approved SES providers. The trial court sustained defendants' demurrer to the complaint without leave to amend. On appeal, plaintiff contends he pleaded facts sufficient to state each cause of action. We affirm.

STANDARD OF REVIEW

We begin with the well-established standard of review from an order sustaining a demurrer without leave to amend: We accept as true all well-pleaded facts and those subject to judicial notice, but not deductions, contentions, or conclusions of law or fact. We review the trial court's ruling on a demurrer independently without deference to the trial court. (Diamond Benefits Life Ins. Co. v. Troll (1998) 66 Cal.App.4th 1, 5.) Whether leave should have been granted is reviewed for abuse of discretion; denial of leave to amend is an abuse of discretion if there is any reasonable probability the defect can be cured by an amendment. (Fox v. JAMDAT Mobile, Inc. (2010) 185 Cal.App.4th 1068, 1078-1079.) "The judgment must be affirmed 'if any one of the several grounds of demurrer is well taken. [Citations.]' [Citation.] However, it is error for a trial court to sustain a demurrer when the plaintiff has stated a cause of action under any possible legal theory. [Citation.]" (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967.)

FEDERAL AND STATE STATUTORY SCHEMES

We next turn to an overview of the federal and state statutory schemes governing SES providers. A stated purpose of NCLB is to meet " 'the educational needs of low-achieving children in our Nation's highest-poverty schools, limited English proficient children, migratory children, children with disabilities, Indian children, neglected or delinquent children, and young children in need of reading assistance.' (20 U.S.C. § 6301(2).)" (Alejo v. Torlakson (2013) 212 Cal.App.4th 768, 774.) NCLB "reflects Congress' judgment that the best way to raise the level of education nationwide is by granting state and local officials the flexibility to develop and implement educational programs that address local needs, while holding them accountable for the results. NCLB implements this approach by requiring States receiving federal funds to define performance standards and to make regular assessments of progress toward the attainment of those standards. (20 U.S.C. §§ 6311(b)(2).) NCLB conditions continued receipt of funds on demonstrations of 'adequate yearly progress.' (Ibid.)" (Horne v. Flores (2009) 557 U.S. 433, 461; see also 20 U.S.C. § 6316(a)(1)(A).)

Schools that fail to make adequate yearly progress for two consecutive years are designated as needing "improvement;" those that fail to make adequate progress for an additional two years are designated as needing "corrective action;" and a school that fails to make adequate progress for another year (i.e. five consecutive years) is designated as needing "restructuring." Schools falling in any of the three designations must provide students of low-income families with SES from an approved provider with a demonstrated record of effectiveness. (20 U.S.C. § 6316 (e)(1).) States must maintain a list of approved SES providers. (20 U.S.C. § 6316(e)(4)(C).) NCLB sets forth general standards providers must meet to be included on the state's approved SES provider list:

"[The] provider shall agree to carry out the following: [¶] (A) Provide parents of children receiving supplemental educational services under this subsection and the appropriate local educational agency with information on the progress of the children in increasing achievement, in a format and, to the extent practicable, a language that such parents can understand. [¶] (B) Ensure that instructionprovided and content used by the provider are consistent with the instruction provided and content used by the local educational agency and State, and are aligned with State student academic achievement standards. [¶] (C) Meet all applicable Federal, State, and local health, safety, and civil rights laws. [¶] (D) Ensure that all instruction and content under this subsection are secular, neutral, and nonideological." (20 U.S.C. § 6316(e)(5).)

More detailed standards are set forth in the Code of Federal Regulations (the federal regulations). The federal regulations require states to develop and apply objective criteria to evaluate potential SES providers. (34 C.F.R. §§ 200.47(a)(2), 200.47(b).) States must also monitor the effectiveness and quality of the services provided by approved SES providers (34 C.F.R. § 200.47(a)(4)(i)) and to withdraw approval from a provider that "fails, for two consecutive years, to contribute to increasing academic proficiency of students receiving [SES] from that provider[.]" (34 C.F.R. § 200.47(a)(4)(ii).)

In California, the discretion afforded states under NCLB is exercised by the Board. (Coachella Valley Unified School District v. State of California (2009) 176 Cal.App.4th 93, 115 (Coachella); see Ed. Code, § 52058.1, subd. (a) [establishing NCLB "Liaison Team" to advise Superintendent of Public Instruction and Board on all matters related to implementation of NCLB].) It is the Board that is tasked with adopting rules and regulations to implement NCLB. (See Ed. Code, § 12001 ["The state board shall adopt rules and regulations for the allocation of federal funds to school districts entitled to receive federal funds for the support of schools. . . ."]; see also Gov. Code, § 11342.2 [to be valid, regulations adopted by state agency with authority to adopt regulations to carry out provisions of a statute must be both reasonably necessary to effectuate the purpose of the statute and be consistent with the statute].) The rules and regulations which implement the federal standards for approving SES providers are set forth in the California Administrative Code (the administrative code). (See Cal. Code Regs., tit. 5, §§ 13705 et seq.)

Both the federal regulations and the administrative code define "SES provider" as an "entity." The federal definition is "a non-profit entity, a for-profit entity, an LEA [Local Educational Authority], an educational service agency, a public school, includinga public charter school, or a private school" that "has a demonstrated record of effectiveness in increasing academic achievement of students . . . ." (34 C.F.R. § 200.47(b)(1)(i).) Consistent with the federal regulations, the administrative code requires an "eligible applicant" for approved SES provider status to be "a public or private (nonprofit or for-profit) entity, public school (including a charter school), private school, school district, county office of education, institution of higher education, faith-based or community-based organization, or business that is legally constituted and qualified to do business in Califomia[.]" (Cal. Code Regs., tit. 5, § 13075.1(d).)

The federal regulations and the administrative code require an SES provider applicant to meet several criteria which we describe below.

Business Licenses

Section 13705.2 of the administrative code requires a completed SES provider application to include "[e]vidence that [the applicant] holds a valid business license issued by the California Secretary of State if it intends to provide services statewide, or that it holds a valid business license issued by the appropriate local licensing entity where it intends to provide services[.]" (Cal. Code Regs., tit. 5, § 13075.2(b)(7).)

Academic Criteria

The federal regulations require that an SES provider have "a demonstrated record of effectiveness...