Mayors in certain large cities around the country have been granted control of the
At issue in this appeal is the constitutionality of the Romero Act. At the heart of that statute are two main provisions: (1) the transfer of substantial power from the Board to the LAUSD District Superintendent (the District Superintendent), and the grant to the Mayor of authority to ratify the appointment of the District Superintendent; and (2) the transfer of complete control of three low-performing High Schools (and their feeder schools) from the Board to a partnership led by the Mayor.
We conclude that the Romero Act is an unconstitutional attempt to do indirectly what the Legislature is prohibited from doing directly. The Legislature cannot overrule the LAUSD's voters' determination that their Board is to be elected rather than appointed, nor may it transfer authority over part of the school system to entities outside of the public school system. We will therefore affirm the trial court's issuance of a writ of mandate preventing the enforcement of the Romero Act.
FACTUAL AND PROCEDURAL BACKGROUND
1. Controlling Constitutional and Related Education Code Provisions
Our discussion of the factual background of this case, as well as the political processes which led to the enactment of the Romero Act, is best understood in the context of the overall scheme of constitutional and statutory provisions establishing and governing the educational system in California.
The controlling constitutional provisions are found in article IX of the California Constitution. Section 1 provides that "the Legislature shall encourage by all suitable means" the promotion of education. The Constitution provides for three different types of agencies to govern education in California: state, county, and district.
At the statewide level, the Constitution provides for the election of a statewide Superintendent of Public Instruction. (Cal. Const., art. IX, § 2.) The Constitution also provides for a State Board of Education, and requires that the Legislature to provide for its election or appointment. (Cal. Const., art. IX, § 7.)
At the county level, there is to be a county superintendent of schools and county board of education. (Cal. Const., art. IX, §§ 3, 7.) A county's charter may provide for an elected county board of education (Cal. Const., art. IX, § 3.3); in the absence of such a provision, the Legislature is to provide whether the county board of education is elected or appointed (Cal. Const., art. IX, § 7). The Constitution leaves it to the voters of each county to determine whether the superintendent of schools is to be elected by the voters or
At the district level, the state is to be organized, by the Legislature, into school districts. "The Legislature shall have power, by general law, to provide for the incorporation and organization of school districts, high school districts, and community college districts, of every kind and class, and may classify such districts." (Cal. Const., art. IX, § 14.) The Constitution references the "governing boards" of school districts without specifically defining them. (Ibid.) The gap is filled by the Education Code, which provides that "[e]very school district shall be under the control of a board of school trustees or a board of education." (Ed.Code, § 35010, subd. (a).) The Constitution permits charter cities to establish, in their charters, "for the manner in which, the times at which, and the terms for which the members of boards of education shall be elected or appointed, for their qualifications, compensation and removal, and for the number which shall constitute any one of such boards."
Under the Constitution, the public schools themselves exist at the district level and are governed by the school districts. Section 5 of article IX provides, "The Legislature shall provide for a system of common schools by which a free school shall be kept up and supported in each district at least six months in every year...." (Cal. Const., art. IX, § 5.) "The Public School System shall include all kindergarten schools, elementary schools, secondary schools, technical schools, and State colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them. No school or college or any other part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System." (Cal. Const., art. IX, § 6.) Section 8 of article IX confirms that "[n]o public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools...." (Italics added.)
"The Legislature may authorize the governing boards of all school districts to initiate and carry on any programs, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes
2. The LAUSD and the Battle for Its Control
The LAUSD is the largest school district in California. It is divided into eight local districts that cover 28 municipalities and multiple unincorporated areas. It has 858 K-12 schools serving 727,000 students, and an additional 150,000 pre-K and adult students. The District's total budget is in excess of $13 billion per year. At least 80% of the students in LAUSD come from economically disadvantaged families; 43% of LAUSD students are English-Language Learners.
Los Angeles is a charter city. Section 801 of the Los Angeles City Charter provides for an elected board of education, containing seven members. In 2000, the Board hired a new superintendent, who centralized the district and implemented various reforms. The new programs have generated some positive results. Elementary school student achievement on state assessments has improved since 2000; however, middle and high school students have not improved their test scores. While overall student performance data for LAUSD is not impressive, other school districts in California have achieved worse results. For example, 32.4% of LAUSD students are considered proficient in Language Arts and 38.1% are considered proficient in Math. However, Santa Ana Unified School District students achieved only 26.8% and 33.5% respectively, and San Bernardino City Unified School District students had even lower numbers. When considering the levels of progress made, LAUSD's gains have outpaced statewide gains in several respects. Thus, while it cannot be disputed that LAUSD is not as successful as it should be, it also cannot be disputed that LAUSD is no worse than a number of other districts in California.
In some large cities across the country, mayors have sought and obtained authority over their local school districts. In the 2005 Los Angeles mayoral runoff election, the two candidates, then-Mayor James Hahn and then-Council member Villaraigosa, each announced that they would seek some measure of control over the LAUSD. Villaraigosa stated that, if elected, he would seek ultimate authority over the LAUSD, as in some other major cities. Villaraigosa was elected Mayor on May 17, 2005.
During this time, then-Los Angeles City Council President Alex Padilla and then-Board President Jose Huizar had been
In the meantime, the Legislature was considering legislation to give the Mayor power over the LAUSD. On August 18, 2005, the Legislative Counsel
The Legislative Counsel was then asked "whether authority or control over educational functions currently performed by a school district may be transferred by statute to the mayor of a charter city." On July 17, 2006, the Legislative Counsel issued its opinion that such a statute would be unconstitutional; in that it would violate California Constitution, article IX, section 6's prohibition against the transfer of any part of the public school system from the authority of the public school system to any authority outside the public school system. (Ops. Cal. Legis. Counsel, No. 0618549 (July 17, 2006) School District: Transfer Of Authority To Mayor Of Charter City, pp. 1, 7.) Finally, the Legislative Counsel was asked whether transferring control over the educational functions of a school district to the mayor of a charter city would be permissible if the County Superintendent of Schools were given authority to oversee the mayor's performance. The Legislative Counsel concluded this would still be an unconstitutional transfer of power. (Ops. Cal. Legis.
3. The Romero Act
On September 8, 2006, the Romero Act was enacted into law. The Romero Act, which is called the "Los Angeles Unified School District: Gloria Romero Educational Reform Act of 2006," makes, by statute, several key changes in the governance of the LAUSD. Specifically, it adds a new chapter to the Education Code entitled, "Los Angeles Unified School District Administration." (Ed.Code, Part 21, Ch. 5.) Section 35900 is added to the Education Code and sets forth the legislative findings which the Legislature believed justified the Romero Act. These findings include that the LAUSD "has unique challenges and resources that require and deserve special attention to ensure that all pupils are given the opportunity to reach their full potential." (Ed.Code, § 35900, subd. (a)(1).) The Legislature also found that "[t]he freedom to deviate from the strictures of generally applicable education statutes and regulations while maintaining the constant commitment to fairness and equity, and to increasing academic achievement among all pupils regardless of background, is central to the success of quality schools in California and is appropriate, as a concept, for the unique circumstances of the Los Angeles Unified School District." (Ed.Code, § 35900, subd. (a)(2).) The Legislature made no findings that LAUSD was failing in its obligation to deliver a constitutionally adequate education to its students.
a. The Council of Mayors
The first major change brought about by the Romero Act is the establishment of the Council of Mayors. The Council of Mayors is to be comprised of the elected mayor of each city any part of which is located within the attendance boundaries of the LAUSD.
The District Superintendent of the LAUSD is, in turn, granted powers that far exceed the powers of the district superintendent
Other powers granted the District Superintendent by the Romero Act include: the "authority to assign and reassign a principal of a school within the LAUSD" (Ed.Code, § 35911, subd. (b)); the authority to make "all employment decisions for all nonrepresented personnel of the LAUSD" (Ed.Code, § 35911, subd. (f)); "authority over the contracting operations of the LAUSD, including, but not limited to, the negotiation and execution of contracts"
In short, after the Legislative Counsel had indicated its belief that it would be unconstitutional for the Mayor to be statutorily granted appointment power over the Board, and that it would likewise be unconstitutional for the powers over education possessed by the Board to be statutorily transferred to the Mayor, the Romero Act transferred many of the powers over education possessed by the Board to the District Superintendent, and effectively gave the Mayor veto power over the appointment of the District Superintendent.
b. The Mayor's Partnership
The second major change worked by the Romero Act is the creation of "The Los Angeles Mayor's Community Partnership for School Excellence" ("Mayor's Partnership"). (Ed.Code, § 35930.) The Mayor's Partnership is to consist of the Mayor, "in partnership with the LAUSD, parent and community leaders and organizations, and school personnel and employee organizations." (Ed.Code, § 35931, subd. (a)(1).) The Mayor's Partnership is to exercise control, discussed in further detail below, over three "clusters" of low-performing schools in the City of Los Angeles, as a demonstration project. A school "cluster" consists of a poor-performing high school and its feeder middle and elementary schools, as well as other programs, including early childhood programs, continuation schools, and adult education programs. While the Romero Act is somewhat vague as to selection of the members of the Mayor's Partnership, it states that the Mayor "shall ensure that each of the clusters is represented in the partnership by at least two representatives from parent organizations who are not also employees of the district, at least two community leaders
The Mayor's Partnership's control of the cluster schools is complete. "Notwithstanding any other provisions of law, and except for the authority to negotiate and enforce collective bargaining agreements, all authority exercised by the board and the district superintendent with respect to the schools in the demonstration project shall be transferred to the [Mayor's Partnership]." (Ed.Code, § 35932, subd. (a).) This includes the authority to seek waivers from the State Board of Education and "authority to operate the schools in the demonstration project with maximum flexibility and efficiency." (Ibid.)
In order to take control over the three clusters of schools, the Mayor's Partnership is first required to seek approval from the County Superintendent of Schools. (Ed.Code, § 35930.5.) The County Superintendent is required to act on a request for approval within 20 days. (Ed.Code, § 35930.5, subd. (b).) The County Superintendent shall grant the request unless one of three specific conditions exist: (a) the Mayor and the Mayor's Partnership "are demonstrably incapable, and not likely to gain the capability before the project begins, of implementing a sound educational program at the schools in the demonstration project"; (b) the Mayor and the Mayor's Partnership have "an irremediable and significant conflict of interest" in undertaking the project; or (c) the Mayor and the Mayor's Partnership "are demonstrably incapable, and not likely to gain the capability before the project begins, of providing sufficient financial oversight to ensure that the schools in the project are financially capable of sustaining a sound educational program and other operational services." (Ibid.) There is to be a progress report on the Mayor's Partnership by January 1, 2008. (Ed.Code, § 35940, subd. (a)(1).) Upon receiving the progress report, the County Superintendent may withdraw authorization for the demonstration project, but only for one of the same three reasons for which approval could have been denied. (Ed.Code, § 35930.5, subd. (c).) Significantly, the County Superintendent can only withdraw approval if the Partnership is demonstrably incapable of implementing a "sound educational program," not if the Partnership has implemented an educational program that proves to be less sound than the educational program previously implemented by the LAUSD at the cluster schools. In other words, the County Superintendent cannot withdraw approval based on any relative determinations of the success of the educational program at the cluster schools,
In short, after the Legislative Counsel had indicated its belief that transferring control over the educational functions of a school district to the mayor of a charter city, with the County Superintendent of Schools being given authority to oversee the mayor's performance, would be unconstitutional, the Romero Act transferred the educational functions over part of the LAUSD to a partnership headed by the Mayor, with the County Superintendent of Schools permitted to invalidate that control under only very limited circumstances.
c. Provisions Relating to the Romero Act's Constitutionality
The Legislature was clearly aware of the Legislative Counsel's opinions when enacting the Romero Act, and therefore took steps with the goal of ensuring the Romero Act's constitutionality. Thus, the general provisions of the Romero Act include a statement that "[i]t is ... the intent of the Legislature that, in performing the school-related duties set forth in this chapter, the [C]ouncil of [Mayors ... and the [Mayor's Partnership] function as agencies authorized to maintain public schools, similar to a school district or county office of education. The [C]ouncil of [M]ayors and the [Mayor's P]artnership are, therefore, a part of the public school system of the state in performing the duties established in this chapter within the meaning of Section 6 of Article IX of the California Constitution." (Ed.Code, § 35900, subd. (e).) The clusters of schools which are under the control of the Mayor's Partnership shall, by statute, "continue to exist as district schools, and employees at the schools shall be deemed to be district employees with all the rights of district employees." (Ed.Code, § 35932, subd. (b).) Those schools "shall continue to be funded with district resources," although the funding may be supplemented by private funding accounted for by the Mayor's Partnership. (Ed.Code, § 35932, subd. (c).) The Romero Act also specifies that "any liability incurred by any member of the [C]ouncil of [M]ayors or the [Mayor's Partnership] in undertaking any of the functions described in this chapter shall be borne by the school district and not by the County of Los Angeles, or any of the cities within its boundaries." (Ed.Code, § 35900, subd. (f).) `
d. Remaining Provisions of the Romero Act
There are several other provisions of the Romero Act, which are not material to our main analysis. The Romero Act provides that the Southeast Cities Schools Coalition, comprised of several cities, shall have the power to ratify the selection of the local district superintendent serving those cities. (Ed.Code, § 35911, subd. (c).) The Romero Act contains provisions relating to the inspector general of the LAUSD (Ed. Code, § 35400). The Romero Act also contains provisions relating to the selection of instructional materials by the LAUSD, including that "[p]arents, teachers, and other certificated staff [shall] have an authentic and central role." (Ed.Code, § 35914, subd. (a)(1)(A).)
The entire Romero Act is repealed by its own terms on January 1, 2013, unless subsequent legislation deletes or extends that date.
4. The Instant Action
On October 10, 2006, a verified petition for writ of mandate challenging the constitutionality of the Romero Act was filed. The plaintiffs include the LAUSD and certain individual and organizational entities opposed to the law. The named defendants are the State of California, the Governor, the State Controller, the State Board of Education, the County Superintendent of Schools, and the Mayor. Plaintiffs took the position that the Romero Act violated sections 5, 6, 8, 14 and 16 of article IX of the California Constitution.
After substantial briefing and argument, the trial court issued its opinion granting the petition for writ of mandate. The lengthy and comprehensive statement of decision issued by the trial court held the Romero Act unconstitutional on every basis on which it had been challenged. Concluding the Romero Act was not severable, the court issued a writ of mandate prohibiting the defendants
ISSUES ON APPEAL
We are concerned solely with the constitutionality of the Romero Act. We first consider whether the Romero Act violates article IX, section 16 of the California Constitution, which grants charter cities the right to determine whether their boards of education are to be elected or appointed. We conclude that it does. We next consider whether the Romero Act violates article IX, section 6 of the California Constitution, which prohibits the transfer of control of any part of the public school system to any authority not included within the public school system. We conclude that it does. As we conclude that the Romero Act is unconstitutional on two separate bases, we see no need to consider the further challenges to its constitutionality. We next consider whether the unconstitutional provisions of the Romero Act can be severed and the remainder of the Romero Act allowed to stand. We conclude the Romero Act is not severable. We will therefore affirm the trial court's judgment issuing a writ of mandate prohibiting the implementation or enforcement of the Romero Act in its entirety.
1. Standard of Review
"In deciding whether the Legislature has exceeded its power, we are guided `by well settled rules of constitutional construction. Unlike the federal Constitution, which is a grant of power to Congress, the California Constitution is a limitation or restriction on the powers of
The "presumption of constitutionality is particularly appropriate where, as here, the Legislature has enacted a statute with the pertinent constitutional prescriptions in mind. `In such a case, the statute represents a considered legislative judgment as to the appropriate reach of the constitutional provision.' [Citation.] Finally, to void a statute on its face, `[those challenging it] cannot prevail by suggesting that in some future hypothetical situation constitutional problems may possibly arise as to the particular application of the statute.... Rather, [they] must demonstrate that the act's provisions inevitably pose a present total and fatal conflict with applicable constitutional provisions.'" (Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1134, 89 Cal.Rptr.2d 745, fn. omitted.)
While legislative findings in support of a statute are "entitled to great weight," they "are not controlling." (County of Riverside v. Superior Court, supra, 30 Cal.4th at p. 286, 132 Cal.Rptr.2d 713, 66 P.3d 718.) "A court may not simply abdicate to the Legislature, especially when the issue involves the division of power between local government and that same Legislature. The judicial branch, not the legislative, is the final arbiter of the constitutionality of a statute. (Id. at p. 286, 132 Cal.Rptr.2d 713, 66 P.3d 718.)
"`Constitutional provisions adopted by the People are to be interpreted so as to effectuate the voters' intent, and if the intent is clear from the language used, there is no room for further judicial interpretation.'" (State Bd, of Education v. Honig (1993) 13 Cal.App.4th 720, 758, 16 Cal.Rptr.2d 727.) Principles of statutory construction apply equally to the interpretation of constitutional provisions. (Id. at p. 755, 16 Cal.Rptr.2d 727.) Thus, for example, we are to read sections of the same article of the Constitution "not in isolation," but "together as a whole." (County of Riverside v. Superior Court, supra, 30 Cal.4th at p. 285, 132 Cal.Rptr.2d 713, 66 P.3d 718.)
2. The Romero Act Violates Article IX, Section 16 of the Constitution
"[T]he Legislature's power over the public school system [is] `exclusive, plenary, absolute, entire, and comprehensive, subject only to constitutional constraints." (State Bd. of Education v. Honig, supra, 13 Cal.App.4th at p. 754, 16 Cal.Rptr.2d 727.) "Public education is an obligation which the State assumed by the
However, certain powers of local districts are enshrined in the California Constitution. Thus, California Constitution, article IX, section 16 guarantees to charter cities the right to provide "for the manner in which, the time at which, and the terms for which members of boards of education shall be elected or appointed, for their qualifications, compensation and removal, and for the number which shall constitute any one of such boards." Moreover, article IX, section 14 provides that "[t]he Legislature may authorize the governing boards of all school districts to initiate and carry on any program, activities, or to otherwise act in any manner which is not in conflict with the laws and purposes for which school districts are established." (Emphasis added.) In other words, while the Constitution does not require that the Legislature delegate any powers to the governing boards of local school districts, the only entities to which the Constitution expressly permits the Legislature to delegate powers regarding education are the very same governing boards which the Constitution mandates charter cities have the right to elect.
It cannot seriously be disputed that the Romero Act substantially interferes with the Board's control of the district. The provisions relating to the Mayor's Partnership completely divest the Board of its powers of control over the three school clusters in the demonstration project. The provisions relating to the Council of Mayors work a somewhat more subtle, but no less substantial, interference. A great many of the powers otherwise accorded the Board are, by the Romero Act, transferred to the District Superintendent. The Board is then stripped of its otherwise-statutory right to "employ" a district superintendent, in that the approval and removal of that individual is now subject to the ratification of the Council of Mayors. Thus, it is clear that both major provisions of the Romero Act substantially interfere with the Board's powers of control over the district. One of the issues presented by this appeal is whether this interference violates the right of the citizens of Los Angeles to elect their board of education, as guaranteed by article IX, section 16 of the California Constitution.
We conclude that it does. It would be a clear violation of the plain language of article IX, section 16, if the Legislature passed a law giving the Mayor the right to appoint the members of the Board. But the constitutional provision would be annulled if the Legislature could simply bypass it by taking the powers of the Board away from that entity and giving them to the Mayor, or the Mayor's appointee. This is nothing more than an end-run around the Constitution. If article IX, section 16 is to mean anything, it must mean that charter
On appeal, the Mayor and State defendants argue that the Constitution's grant of the power to choose whether to elect a board of education is limited only to that power, and does not imply that any such elected board of education would have any particular powers or duties. The Mayor relies on State Bd. of Education v. Honig, supra, 13 Cal.App.4th 720, 16 Cal.Rptr.2d 727, for this proposition, while the State defendants rely on Cobb v. O'Connell (2005) 134 Cal.App.4th 91, 36 Cal.Rptr.3d 170. Both cases are distinguishable.
State Bd. of Education v. Honig, supra, 13 Cal.App.4th at p. 729, 16 Cal.Rptr.2d 727, was concerned with a "turf battle[ ]" between the State Board of Education and the Superintendent of Public Instruction (State Superintendent). By statute, the State Board of Education is the legislative, policy-making branch of the State Department of Education, while the State Superintendent is vested with executive functions. The State Board of Education adopted certain policies and sought a writ of mandate directing the State Superintendent to implement those policies. The State Superintendent took the position that he was under no clear ministerial obligation to do so. (Ibid.) At one point, the State Superintendent argued that the Legislature had exceeded its authority by designating the State Board of Education as the policy-making branch of the Department of Education. The State Superintendent argued that the framers of the California Constitution had "intended to place the Superintendent `in charge and control of the public school system and the state education department.'" (Id. at p. 754, 16 Cal.Rptr.2d 727.) He relied on article IX, section 2 of the California Constitution, which provides as follows: "A Superintendent of Public Instruction shall be elected by the qualified electors of the State at each gubernatorial election. The Superintendent of Public Instruction shall enter upon the duties of the office on the first Monday after the first day of January next succeeding each gubernatorial election." "Focusing on the language `shall enter upon the duties of the office' and on portions of the debates of the 1878-1879 Constitutional Convention, the [State] Superintendent
The Honig court disagreed, concluding that nothing in the plain language of article IX section 2 limited the Legislature's authority to define the State Superintendent's duties, noting that, when the "duties of the office" language in question was adopted, the State Superintendent's duties were then defined by statute, and there was no reason to believe the Constitutional language was intended to deprive the Legislature of the authority to ever amend the statute. (Id. at p. 756, 16 Cal.Rptr.2d 727.) The court added, "Nor does a commonsense reading of the language the Superintendent 'shall enter upon the duties of the office' create a right to take charge of and be in control of the public school system and the Department by virtue of that office alone. Our reading of article IX, section 2 is consistent with article IX considered as a whole. [Citation.] Although the Superintendent is a constitutional officer whose office cannot be extinguished by the Legislature, the powers and duties of that office may, and have been, increased and diminished by the Legislature under its plenary authority." (Id. at p. 756, 16 Cal.Rptr.2d 727.)
The above-quoted language from State Bd. of Education v. Honig, supra, 13 Cal. App.4th at p. 756, 16 Cal.Rptr.2d 727, does not control our interpretation of article IX, section 16 of the California Constitution. The LAUSD does not question the power of the Legislature to increase or diminish the powers and duties of local boards of education; indeed, much of the Education Code can be seen as limits on the power of local boards of education. We are instead concerned with a special law
The State defendants fare no better with Cobb v. O'Connell, supra, 134 Cal.App.4th 91, 36 Cal.Rptr.3d 170. To appreciate that conclusion, however, a brief discussion of Butt v. State of California, supra, 4 Cal.4th 668, 15 Cal.Rptr.2d 480, 842 P.2d 1240 is necessary. In April 1991, the Richmond Unified School District
It was just such an extreme case that led to Cobb v. O'Connell supra, 134 Cal.App.4th 91, 36 Cal.Rptr.3d 170. In 2002, the Oakland Unified School District discovered that it had a deficit of $31 million, with another $50 million deficit projected for the following year. (Id. at pp. 93-94, 36 Cal.Rptr.3d 170.) The Legislature stepped in with emergency legislation "to ensure that this fiscal crisis in the Oakland schools did not deprive students of their educational opportunities." (Id. at p. 94, 36 Cal.Rptr.3d 170.) The state provided a $100 million loan, and temporarily transferred control of the schools to the state. The State Superintendent was to appoint an administrator to run the schools, with the local governing board remaining in an advisory capacity, for two years or until the projected completion of a specified plan to resolve the fiscal crisis. (Ibid.) Some Oakland residents brought suit, contending the temporary removal of authority from the elected school board violated the "home rule" provisions of the California Constitution and the Oakland City Charter.
Butt v. State of California and Cobb v. O'Connell are clearly distinguishable from
3. The Romero Act Violates Article IX, Section 6 of the Constitution
We next consider article IX, section 6 of the Constitution, which provides, in pertinent part, "The Public School System shall include all kindergarten schools, elementary schools, secondary schools, technical schools, and State colleges, established in accordance with law and, in addition, the school districts and the other agencies authorized to maintain them. No school or college or any other part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System." (Italics added.)
"It is clear from early cases that the general purpose of article IX, section 6 was to adopt one uniform system of public school education; the term `system' itself imparting unity of purpose as well as entirety of operation." (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist. (1973) 36 Cal.App.3d 46, 57, 111 Cal.Rptr. 433, fn. omitted.) Providing a single system of public schools "means that the educational system must 'be uniform in terms of the prescribed course of study and educational progression from grade to grade.'" (Wilson v. State Bd. of Education, supra, 75 Cal. App.4th at p. 1137, 89 Cal.Rptr.2d 745.) The purpose of article LX, section 6 of the California Constitution is to guarantee that "the ability of that system to discharge its duty fully is not impaired by the dissipation of authority and loss of control that would result if parts of the system were transferred from the system or placed under the jurisdiction of some other authority." (California Teachers Assn. v. Board of Trustees (1978) 82 Cal.App.3d 249, 254, 146 Cal.Rptr. 850.) It is "a fluid provision, one that must be interpreted by the facts of each case." (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist, supra, 36 Cal.App.3d at p. 57, 111 Cal.Rptr. 433.)
To determine whether the Romero Act violates this provision, we first decide whether the Council of Mayors and Mayor's Partnership are entities within the public school system. As we conclude that they are not, we then address the question as to whether the Romero Act transfers part of the school system to these entities.
a. The Council of Mayors and Mayor's Partnership are not Public School System Entities
Article IX, section 6 provides that, in addition to the public schools themselves,
Our analysis begins
The critical question, therefore, is whether the Council of Mayors and the Mayor's Partnership can be deemed to be a part of the public school system for any reason other than the Legislature's bald declaration that they are. The Council of Mayors is effectively directed by the Mayor, as it can take no action without his agreement. Likewise, by its terms, the Mayor's Partnership is "directed" by the Mayor. Yet the Mayor is not part of the public school system. The Mayor is an elected official who, according to the City Charter, is "the Chief Executive Officer of the City." (L.A.Charter, § 230.)
Article IX of the California Constitution governs education in California. It provides for a State Superintendent and
b. The Romero Act Transfers Part of the Public School System to the Mayor's Partnership and Council of Mayors
Article IX, section 6 provides, in pertinent part, "No school or college or any other part of the Public School System shall be, directly or indirectly, transferred from the Public School System or placed under the jurisdiction of any authority other than one included within the Public School System." This provision is violated only by transfers of control. (California Sch. Employees Assn. v. Sunnyvale Elementary Sch. Dist, supra, 36 Cal.App.3d at p. 57, 111 Cal.Rptr. 433.) When, for example, an entity outside the school system acts in an advisory capacity only, there is no prohibited transfer, because the outside entity "exercises no actual control" over the school system entities. (Ibid.)
The prohibition is not violated by a statute allowing school districts to contract with private driver training schools to provide driver training, when the private driver training schools would be "`under the exclusive control and management of the governing board of the school district and shall comply with all rules and regulations of the State Board of Education relating to driver training offered by the public schools [with the exception that teaching credentials would not be required].'" (California Teachers Assn. v. Board of Trustees, supra, 82 Cal.App.3d at p. 252, 146 Cal.Rptr. 850.) This is so because the statute simply allows school boards to delegate a portion of the teaching function to be "done under the control and supervision of the school district." (Id. at p. 255, 146 Cal.Rptr. 850.) However, "if the control and management of the driver training program were to be transferred to a private school," a constitutional violation would occur. (Id. at p. 256, 146 Cal.Rptr. 850.) "This would be true not because the teaching function may not be transferred, but because the school districts and the other agencies authorized to maintain the schools within the public school system are also a part of the system, and article IX, section 6, prohibits placing any part of the system under the jurisdiction of any authority other than one included within the system. A transfer of control would indirectly transfer a part of the administrative system." (Ibid.)
Similarly, the Charter Schools Act, which allowed the creation of charter schools "free from most state laws pertaining uniquely to school districts," also did not effect an unconstitutional transfer of
We analyze the provisions of the Romero Act in the context of this framework. We turn first to the three clusters of schools that are part of the demonstration project. As to these schools, the Romero Act transfers all authority "exercised by the [LAUSD board of education] and the district superintendent" to the Mayor's Partnership. (Ed.Code, § 35932, subd. (a).) Unlike the driver training programs at issue in California Teachers Assn. v. Board of Trustees, supra, 82 Cal.App.3d 249, 146 Cal.Rptr. 850, in which the programs remained under the exclusive management and control of the governing boards of the school district, these three clusters of schools are taken from the management and control of the LAUSD Board of Education. Moreover, the panoply of controls exerted by public school system authorities over the charter schools at issue in Wilson v. State Bd. of Education, supra, 75 Cal.App.4th 1125, 89 Cal.Rptr.2d 745 are not present here. The County Superintendent must approve of the demonstration project unless one of three narrowly-drawn conditions exist. Moreover, the County Superintendent has only two windows of opportunity in which to act: within 20 days of the initial application, and after the intermediate review in January 2008. Indeed, for the five years between January 2008 and January
With respect to the provisions of the Romero Act regarding the Council of Mayors, the question is somewhat closer. The Romero Act transfers many elements of management and control over the schools in the LAUSD from the Board to the District Superintendent. Standing alone, these provisions do not work a violation of article IX, section 6 of the Constitution, in that the District Superintendent, as a Board employee, is a part of the public school system. However, the Romero Act goes further and gives the Council of Mayors the power to ratify the "appointment, contract term, contract renewal, refusal to renew a contract, or removal of the district superintendent." (Ed.Code, § 35921, subd. (b).) The question thus presented is whether the effective grant of veto power
4. The Unconstitutional Provisions of the Romero Act Are Not Severable
Having concluded that the great bulk of the Romero Act is unconstitutional, the issue becomes whether those provisions can be severed, allowing the remainder of the Romero Act to go into effect. For the unconstitutional portions of a law to be severable, they must be "grammatically, functionally, and volitionally separable" from the remainder of the law. (Calfarm Ins. Co. v. Deukmejian (1989) 48 Cal.3d 805, 821, 258 Cal.Rptr. 161, 771 P.2d 1247.) The dispute in this case is over the third factor. This determination focuses on whether the remainder of the statute would have been adopted by the Legislature had it foreseen the partial invalidity of the statute. (Ibid.)
In this case, we are guided by the legislative history. As the Romero Act proceeded through the Legislature, a severability clause was added by amendment on
Since the severability clause was removed in light of concerns that some proponents of the bill did not, in fact, want the provisions of the Romero Act to be severable, we conclude that the Legislature had considered the possibility of partial invalidity of the Romero Act, and had concluded that it would not, in fact, want the remainder of the law to be effective.
The citizens of Los Angeles have the constitutional right to decide whether their school board is to be appointed or elected. If the citizens of Los Angeles choose to amend their charter to allow the Mayor to appoint the members of the Board, such amendment would indisputably be proper. What is not permissible is for the Legislature to ignore that constitutional right and to bypass the will of the citizens of Los Angeles and effectively transfer many of powers of the Board to the Mayor, based on its belief, hope, or assumption that he could do a better job. The trial court's order granting the writ prohibiting the enforcement of the Romero Act in its entirety must be affirmed.
The judgment is affirmed. Plaintiffs shall recover their costs on appeal.
We Concur: KLEIN, P.J., and KITCHING, J.