Wendz v. Cal. Dep't of Educ.

93 Cal.App.5th 607

311 Cal.Rptr.3d 213

Milagros Azucena WENDZ, Plaintiff and Appellant,

v.CALIFORNIA DEPARTMENT OF EDUCATION, et al., Defendants and Respondents.

A162648

Court of Appeal, First District, Division 1, California.

Filed July 14, 2023

Munger, Tolles and Olson, Rohit K. Singla, Richard T. Johnson, San Francisco; California Rural Legal Assistance, Cynthia L. Rice ; and Lawyers’ Committee for Civil Rights- San Francisco, Deborah Escobedo for Plaintiff and Appellant.

California Department of Education, Amy Bisson Holloway, Virginia Jo Dunlap and Terri A. McFarland for Defendants and Respondents.

SWOPE, J.^*

The Legislature charged respondent Superintendent of Public Instruction (Superintendent) with "ensur[ing] effective parental involvement" in the Migrant Education Program (MEP), the purpose of which is to address the unique educational needs of migrant children. ( Ed. Code, §§ 54440, 54444.2, subd. (a).)¹ As part of this mandate, the Superintendent must establish regional parent advisory councils (RPACs) to consult with local educational agencies in the planning, operation, and evaluation of migrant education programs. ( § 54444.2, subd. (a)(1).) In 2019, the Superintendent adopted regulations concerning the formation and governance of RPACs, including regulations that could affect the size and makeup of the councils.²

Appellant Milagros Azucena Wendz sought to invalidate the regulations in a petition for a writ of mandate, and she appeals from the trial court's denial in part of her petition. Wendz argues the trial court should have granted her petition in its entirety because the Superintendent's adoption of the regulations was outside his statutory authority, as section 54444.2 provides migrant parents the "sole authority" to "decide on the composition of the council." ( § 54444.2, subd. (a)(1)(A).) She also argues that the regulations conflict with the statute because they place impermissible restrictions on migrant parents’ authority to nominate and elect RPAC members from the community. She further argues that the necessity of the regulations to effectuate the purpose of the MEP was not supported by substantial evidence. Finally, she argues that respondents failed to comply with several procedural requirements of the Administrative Procedure Act (APA, Gov. Code, § 11340 et seq. ).³

We conclude the Superintendent acted within his authority in adopting the challenged regulations. We agree, however, that the Superintendent violated the APA's notice requirements when he adopted a regulation prohibiting RPAC members’ use of alternates without adequate notice to the public. He otherwise complied with the APA in adopting the regulations, and the necessity of the regulations is supported by substantial evidence. We therefore conclude the regulations are valid except for the prohibition on alternates and the portions of the regulations the trial court invalidated, and the petition for a writ of mandate is granted only to the extent it seeks to compel respondents to refrain from enforcing those portions of the regulations.

I. BACKGROUND

A. The Migrant Education Act

In 1976, the Legislature created the MEP by enacting the Migrant Education Act (the Act) in recognition that the unique problems facing migrant children in the state educational system "are of such magnitude and severity that local school districts have been unable to solve them with the resources normally available. It is, therefore, necessary for the state to aid local school districts through regional coordinating offices and the provision of special programs of educational and related services for these children." ( § 54440, subd. (b).)

Under the Act, the State Board of Education must adopt a master plan for services to migrant children, which is to include instructional activities designed to identify and address migrant children's academic deficiencies, health and welfare services, and supportive services for migrant families. ( § 54442, subds. (a), (b), (d).) The plan requires "[t]he active involvement of parents, teachers, and community representatives in the local implementation of migrant education." ( § 54442, subd. (f).) The Act charges the Superintendent with implementing the plan adopted by the State Board of Education ( § 54444 ), and authorizes the State Board of Education to adopt rules and regulations "necessary to implement the provisions of this article" ( § 54445 ).

B. Regional Migrant Parent Advisory Councils

In 1981, the Legislature amended the Act, adding several sections. The purpose of the amendments was to provide state standards for migrant education "in the absence of regulations by the State Board of Education ...."

As relevant to this appeal, one of the sections added by the amendments is section 54444.2, which provides that "[t]he Superintendent shall take the steps necessary to ensure effective parental involvement throughout the state migrant education program ...." ( § 54444.2, subd. (a).) Those steps "shall include, but need not be limited to," the adoption of "rules and regulations requiring each operating agency receiving migrant education funds or services to actively solicit parental involvement in the planning, operation, and evaluation of its programs through the establishment of, and consultation with, a parent advisory council." ( § 54444.2, subd. (a)(1).) An "operating agency" means "a local educational agency operating under a subgrant of state migrant education funding, or a public or private nonprofit agency ...." ( § 54441, subd. (e).) These parent advisory councils are what the parties have termed regional parent advisory councils (or RPACs). Subdivision (a)(2) requires the Superintendent to separately establish a statewide parent advisory council (or SPAC). ( § 54444.2, subd. (a)(2).)

Subdivision (a)(1)(A) of section 54444.2 provides standards for the formation of regional parent advisory councils: "The membership of each parent advisory council shall be composed of members who are knowledgeable of the needs of migrant children, and shall be elected by the parents of migrant children enrolled in the operating agency's programs. The composition of the council shall be determined by the parents at a general meeting to which all parents of pupils enrolled in the migrant program shall be invited. Parents shall be informed, in a language they understand, that the parents have the sole authority to decide on the composition of the council. All parent candidates for the council shall be nominated by parents; nonparent candidates shall be nominated by the groups they represent: teachers by teachers, administrators by administrators, other school personnel by other school personnel, and pupils by pupils. All other community candidates shall be nominated by the parents." ( § 54444.2, subd. (a)(1)(A).) That section further provides that "[a]t least two-thirds of the members of each parent advisory council shall be the parents of migrant children." ( § 54444.2, subd. (a)(1)(B).)

C. The Regulations Promulgated by the Superintendent

In 2018, the Superintendent began drafting regulations "to promote the orderly and efficient operation of the [regional parent advisory councils] throughout the State." Over a period of almost 1 year, the Superintendent and CDE staff drafted proposed regulations, received public comments, and held a hearing on the proposed regulations. In November 2019, the Superintendent adopted regulations. Wendz challenges several of those regulations on the ground that they undermine migrant parents’ authority under subdivision (a)(1)(A) of section 54444.2 to determine the "composition" of regional parent advisory councils and to nominate and elect community members.

1. Nominations of Community Members

California Code of Regulations, title 5, section 12013 delineates the nomination process for community RPAC members. ( Cal. Code Regs., tit. 5, § 12013, subd. (a).) The specific parts of the regulation that Wendz challenges are the provisions stating that individual council members "may" nominate eligible community members ( Cal. Code Regs., tit. 5, § 12013, subd. (a) ) and that a candidate's name shall be withdrawn from nomination if the migrant region determines that a candidate is ineligible ( Cal. Code Regs., tit. 5, § 12013, subd. (a)(7) ).

2. Member Term Limits

The challenged portions of California Code of Regulations, title 5, section 12014, subdivision (a), provide that "[a] term of office for eligible parent members shall not exceed two years[,]" and an eligible parent member cannot be elected for more than two terms. ( Cal. Code Regs., tit. 5, § 12014, subd. (a).) Similarly, a term of office for community members cannot exceed one year, and community members are limited to two terms. ( Cal. Code Regs., tit. 5, § 12014, subd. (b).)

3. Size and Makeup of Regional Councils

California Code of Regulations, title 5, section 12011, provides that, "The RPAC shall be comprised of up to 15 eligible parent members with no alternate members." ( Cal. Code Regs., tit. 5, § 12011, subd. (a).) That section further provides that regional councils "may include up to three optional community members ...." ( Cal. Code Regs., tit. 5, § 12011, subds. (b), (c).)

4. Community Member Candidate Qualifications

California Code of Regulations, title 5, section 12010 defines "eligible community member" as a person who "is knowledgeable about the needs of migrant children, and is either an eligible migrant child or a professional working in the field of education and social and health services ...." ( Cal. Code Regs., tit. 5, § 12010, subd. (b)(1).) It further provides that "eligible community member" excludes parent members and employees "of a Migrant Education Program at the district, county, or state level," or employees of the CDE. ( Cal. Code Regs., tit. 5, § 12010, subd. (b)(2), (3).)

5. Disqualifying Regional Council Members

Finally, Wendz challenges the provisions in California Code of Regulations, title 5, section...