Quezeda Motion Brief 8.20.07

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JOHN T. AFFELDT (SBN 154430)

ANGELICA K. JONGCO (SBN 244374)
JENNY PEARLMAN (SBN 224879)
PUBLIC ADVOCATES, INC.
131 Steuart Street, Suite 300
San Francisco, California 94105
Tel. (415) 431-7430
Fax (415) 431-1048
Email: jaffeldt@publicadvocates.org
Attorneys for PETITIONERS
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SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF ALAMEDA
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GRISELDA QUEZADA, MARTHA ORTEGA,

and JO ANN SIBLEY,
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Petitioners,
Case No. RG07340358

NOTICE OF MOTION AND MOTION
FOR WRIT OF MANDATE
VIA FAX
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v.
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Cal. Civ. Proc. Code 1085

KIMBERLY STATHAM, State Administrator of
Oakland Unified School District, GOVERNING
BOARD OF OAKLAND UNIFIED SCHOOL
DISTRICT, and JACK OCONNELL, State
Superintendent of Public Instruction,
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Hearing Reservation #745246

Date: October 11, 2007
Time: 9:00 a.m.
Dept: 31
Judge: Hon. Frank Roesch
Respondents.
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TO RESPONDENTS AND THEIR ATTORNEYS OF RECORD:
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PLEASE TAKE NOTICE that on October 11, 2007, at 9:00 a.m. in Department 31 of the above28
_________________________________________________________________________________
NOTICE OF MOTION AND MOTION FOR WRIT OF MANDATE
entitled court, located at 201 Thirteenth Street, Oakland, California, Petitioners in the above-entitled
action will, and do hereby, move the Court, pursuant to Code of Civil Procedure 1085 and 1086, for
an order directing issuance of a peremptory writ of mandate commanding Respondents Kimberly
Statham, Governing Board of Oakland Unified School District, and Jack OConnell (collectively,
Respondents), immediately upon receipt of the writ, to:
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(1) comply fully with all SARC obligations and, in particular, to comply with
a. Article XVI section 8.5(e) of the California Constitution, sections 2(e), 6, and 8 of
Proposition 98, and sections 33126.1, 35256(c), and 35258 of the Education Code by
immediately issuing and publicizing, including on the Internet, complete 2004-05
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SARCs and 2005-06 SARCs for each district school, including the schools specifically
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identified in Exhibit 4 of Petitioners Verified Petition for Writ of Mandate;
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b. Section 33126(b)(5) of the Education Code by providing required information in the
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2004-05 and 2005-06 SARCs for each district school on teacher misassignments and
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teacher vacancies, including the schools specifically identified in Exhibits 5 and 6 of
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Petitioners Verified Petition for Writ of Mandate; and
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c. Section 33126(b)(3) of the Education Code by providing required information in the
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2005-06 SARCs for each district school on estimated expenditures per pupil, and on the
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average of actual teacher salaries, including the schools specifically identified in
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Exhibits 7 and 8 of Petitioners Verified Petition for Writ of Mandate;
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(2) comply with section 48985(a) of the Education Code by translating the 2005-06 SARCs into
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primary languages other than English for district schools where 15 percent or more of the
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students speak a primary language other than English, including the schools specifically
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(3) provide the parent or guardian of each student enrolled in a district school with written
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notification that: (a) this Court has found Respondents in violation of their SARC obligations
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and ordered Respondents to correct those deficiencies, and (b) complete 2004-05 and 2005-06
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SARCs are available on the Internet for each OUSD school, with hard copies available at the
school site upon request;
(4) provide the parent or guardian of each student enrolled in a district school where 15 percent or
more students speak a primary language other than English with written notification in that
primary language that: (a) this Court has found the Respondents in violation of their SARC
obligations and ordered Respondents to correct those deficiencies, and (b) translated 2005-06
SARCs for their childs school are available on the Internet, with hard copies available at the
school site upon request; and
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(5) comply fully with their SARC obligations annually, by May 31st of each school year or such
earlier date as may be fixed by law;
(6) make and file a return to the writ within 30 days from the date of the issuance of the writ
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demonstrating that Respondents have complied with each element of the directives of this
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order;
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(7) make and file a final return to the writ demonstrating that they have complied fully with their
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SARC obligations for the 2007-08 school year (with respect to 2006-07 SARCs) by no later
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than June 6, 2008 or, if an earlier date has been fixed by law, by no later than one week after
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such earlier date.
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Petitioners bring this motion pursuant to Code of Civil Procedure 1085 and 1086 on the
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grounds that Respondents have not fulfilled their ministerial and nondiscretionary public duties for the
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2005-06 and 2006-07 academic years to: (1) issue, publicize, and post annually updated and complete
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SARCs for OUSD schools; (2) include on the SARCs that have been prepared for district schools
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essential data on teacher misassignments and vacancies, as well as per pupil expenditures and the
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average teacher salaries; and (3) translate the SARCs into another language if 15% or more of the
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students at an OUSD school speak a single primary language other than English.
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This motion is based on this notice of motion; on the accompanying memorandum of points
and authorities in support; on the pleadings, records, and files in this action, including the Verified
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Petition for Writ of Mandate and attached exhibits, filed August 13, 2007; and on such oral and
documentary evidence to be presented at the hearing on this motion.
Dated in San Francisco, California, on the 20th day of August 2007.
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Respectfully submitted,
JOHN T. AFFELDT
ANGELICA K. JONGCO
JENNY PEARLMAN
Attorneys for Petitioners
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By:
JENNY PEARLMAN
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ANGELICA K. JONGCO
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Tel. (415) 431-7430
Fax (415) 431-1048
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and JO ANN SIBLEY,
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Petitioners,
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Case No. RG07-340358

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PETITION FOR WRIT OF MANDATE
VIA FAX
v.
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Time: 11:00 a.m.
Dept. 31
Respondents.
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________________________________________________________________________________________
MEMORANDUM OF POINTS AND AUTHORITIES IN
SUPPORT OF PETITION FOR WRIT OF MANDATE
INTRODUCTION
Established in 1988 by California voters through the passage of Proposition 98, the School
Accountability Report Card (SARC) stands out as the one document that provides comprehensive
reporting to parents and the public on key conditions at each individual school site within a district.
See Prop. 98 2(e), 6-8; Educ. Code 33126, 35256.1 For nearly two decades, the governing board
of every school district has been required to issue and publicize annually updated SARCs for each
district school and to ensure that each SARC contains specific accountability information enumerated
by statute. Prop. 98 2(e), 8; Cal. Const., art. XVI 8.5(e); Educ. Code 33126, 35256 (as
amended since 1988).
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The SARC serves two important legislative purposes. First, to ensure that our schools spend
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money where it is most needed, the SARC was mandated by the voters to guarantee accountability
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for dollars spent. Prop. 98 2(e). Second, to enable [a parent] to make informed decisions on
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which school to enroll his or her child[,] the SARC provides essential data by which a parent can
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make meaningful comparisons between public schools. Educ. Code 33126(a). A complete SARC
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must include individual school site information on a range of indicators critical to assessing students
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learning environments, including the availability of qualified teachers, per pupil expenditures, average
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teacher salaries, dropout and graduation rates, test scores, textbook shortages, and necessary facility
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repairs. Id. 33126(b). In addition, the SARC must be translated into another language for parents
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whose children attend schools where 15% or more of the students speak that other primary language.
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See id. 48985(a).
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The law is unambiguous that parents and the public have a right to a complete and annually
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updated SARC for each district school. Cal. Const., art. XVI 8.5(e); Educ. Code 33126,
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33126.1(l), 35256(c), 35258. For at least the past two school years, however, parents and the public in
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Unless otherwise noted, for purposes of this Motion, references to the California Education Code
have been shortened to Education Code or Educ. Code and references to the California Code of
Civil Procedure have been shortened to the Code of Civil Procedure or Civ. Proc. Code.
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the Oakland Unified School District (OUSD or the District) have been left in the dark by the
Districts ongoing failure to live up to these obligations.
Griselda Quezada, Martha Ortega, and Jo Ann Sibley (collectively, Petitioners), concerned
citizens with children enrolled in the District, bring this action to compel State Administrator of
OUSD Kimberly Statham, the Governing Board of OUSD, and State Superintendent of Public
Instruction Jack OConnell (collectively, Respondents) to comply with the Districts
nondiscretionary duties to prepare and disseminate updated and complete SARCs for OUSD schools.2
Respondents continued failure to satisfy their SARC obligations in full has denied parents,
community members, and the public the vital information about OUSD schools to which they are
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entitled under the California Constitution and state statutes.
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FACTS
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In 1988, California voters passed Proposition 98, the Classroom Instructional Improvement
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and Accountability Act, which amended the California Constitution to require school districts to
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adopt a School Accountability Report Card for each school (Cal. Const. art. XVI 8.5(e), added by
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Prop. 98 6; see also Prop. 98 2(e)) and amended the Education Code to state that [t]he governing
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[b]oard of each school district shall annually issue a School Accountability Report Card for each
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school in the school district (Educ. Code 35256(c), added by Prop. 98 8). (Pet. 18.)3
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Because of the public importance of every school districts duty to issue and publicize annually
a complete SARC for each district school, on May 15, 2006, Petitioners counsel sent a letter to all
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Following a fiscal emergency in 2003, the rights, duties, and powers of the Governing Board were
assumed by the State Superintendent of Public Instruction and the State Administrator for OUSD
under Senate Bill 39. S.B. 39, Stats. 2003, ch. 14 3-4, 5(b), 16. Hence, State Administrator
Statham and State Superintendent of Public Instruction OConnell have assumed the Governing
Boards duties with respect to publication of SARCs. Given that at some future date, as yet unknown,
the Governing Board may resume its duties and powers over the District, including all of OUSDs
SARC obligations, the Governing Board is an important and necessary party to this action.
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Citation to the Verified Petition for Writ of Mandate (filed Aug. 13, 2007) is abbreviated as Pet.,
and citation to an Exhibit attached to the Verified Petition for Writ of Mandate is abbreviated as
Exh.
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district superintendents in the State, including the State Administrator of OUSD, to remind them of
the districts responsibility to comply with legal obligations regarding [SARCs] for each of its
schools and that the deadline for updating and publicizing SARCs was May 31, 2006. That letter
alerted Respondents that Petitioners counsel was prepared to bring legal action . . . against school
districts that fail to comply with SARC requirements . . . and offered assistance to districts if they had
questions about how to comply with the law. (See Pet. 20; Exh. 1.)
After a review of OUSDs SARCs during the summer of 2006, Petitioners counsel sent a
letter, dated August 17, 2006, to Respondent Statham to notify her that the District was in violation of
state requirements concerning the preparation and dissemination of 2004-05 [SARCs] for the 2005-
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06 school year.4 (See Pet. 21; Exh. 2.) The letter described the Districts failure in meeting its
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obligations to: (a) issue and publicize an updated SARC for each district school by the end of the
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academic year, (b) provide on the SARCs essential information required under Education Code section
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33126(b), and (c) translate SARCs into a primary language other than English where 15% or more of
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pupils enrolled in a school that other primary language. Petitioners counsel further notified
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Respondents that they may be compelled to file suit in the event [OUSD] does not agree in writing
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[within 15 calendar days] to comply with its SARC obligations as set forth in this letter. (Id.)
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After receiving no response at all from Respondent Statham or anyone at the District,
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Petitioners counsel sent another letter, dated September 20, 2006, to Respondent Statham. This letter
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reiterated the demands set forth in the August 17, 2006 letter and requested a written response within
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ten days. (Pet. 22; Exh. 3.) When ten days passed with no response yet again, Petitioners counsel
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contacted OUSD and State officials in an attempt to compel the District to comply fully with its
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mandatory SARC duties. (Pet. 23.) This prompted numerous communications over a period of nine
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A SARC completed in the 2005-06 school year is usually referred to as a 2004-05 SARC, and a
SARC completed in the 2006-07 school year is usually referred to as a 2005-06 SARC as most of the
data reported in SARCs are derived from the prior academic year. For purposes of this Motion, a
2004-05 SARC was to be completed during the 2005-06 school year and a 2005-06 SARC was to be
completed during the 2006-07 school year.
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months between Petitioners counsel and OUSD officials as well as State officials regarding the
continued failure by the District to satisfy its SARC obligations for the 2005-06 and 2006-07 school
years. (Pet. 24.)
In response to ongoing pressure from Petitioners counsel, OUSD did correct several
deficiencies in its 2004-05 SARCs for the 2005-06 academic year and 2005-06 SARCs for the 2006-
07 academic year. (Id.) Nevertheless, despite numerous opportunities to comply with the clear
statutory requirements for SARCs, to datemore than a year after full compliance was required for
the 2004-05 SARCs and more than two and a half months after full compliance was required for the
2005-06 SARCsOUSD still has not satisfied its mandatory SARC duties for the past two school
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years. (Pet. 19, 24.)
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As of August 10, 2007, Respondents failed to meet at least the following SARC obligations:
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(1) issue, publicize, and post 2004-05 SARCs for 10 district schools and 2005-06 SARCs for 16
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district schools (Pet. 24, 26; Exh. 4); (2) report required information in 2004-05 SARCs on teacher
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misassignments at 19 schools and teacher vacancies at 21 schools (Pet. 24, 28; Exhs. 5, 6); and (3)
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report required information in 2005-06 SARCs on teacher misassignments at 76 schools, teacher
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vacancies at 82 schools (id.), on per-pupil expenditures at 96 schools (Pet. 24, 30; Exh. 7), and on
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average teacher salaries at 96 schools (Pet. 24, 30; Exh. 8). In addition, Respondents failed to
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translate into languages other than English the 2005-06 SARC for 36 schools requiring Spanish
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translation and 7 schools requiring Chinese translation. (Pet. 24, 33; Exh. 9.)5
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As a result of Respondents continuing failure to comply fully with their SARC obligations,
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Petitioners bring this action to enforce their right and that of the public to vital information contained
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in the SARCs.
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While these are the deficiencies that Petitioners counsel has identified, Respondents are responsible
for satisfying fully all their SARC obligationsnot just those areas of concern that are the focus of the
present action.
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ARGUMENT
For the past two school years, Respondents failed to comply with their ministerial and
nondiscretionary duties to: (1) issue, publicize, and post annually updated and complete SARCs for
OUSD schools; (2) include on the SARCs that have been prepared for district schools essential data on
teacher misassignments and vacancies, as well as per pupil expenditures and average teacher salaries;
and (3) translate the SARCs into another language if 15% or more of the students at an OUSD school
speak a single primary language other than English. Petitioners are entitled to a writ of mandate,
pursuant to Code of Civil Procedure sections 1085 and 1086, to compel Respondents to perform these
duties and remedy the continuing effects of Respondents statutory violations.
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I.
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RESPONDENTS FAILED TO COMPLY WITH THEIR NONDISCRETIONARY

DUTIES UNDER THE STATE CONSTITUTION AND EDUCATION CODE TO
ISSUE, PUBLICIZE, AND POST ANNUALLY UPDATED SARCS.
Pursuant to Section 35256(c) of the Education Code, Respondents have nondiscretionary and
ministerial public duties to:
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annually issue a School Accountability Report Card for each school in the school
district, [and] publicize such reports . . . .
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Educ. Code 35256(c) (emphasis added). 6 The Districts duty to adopt a [SARC] for each school
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is also explicit in the California Constitution. Calif. Const., art. XVI 8.5(e) (Any school district
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maintaining an elementary or secondary school . . . shall adopt a [SARC] for each school (emphasis
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added)). In addition, the Legislature has mandated that school districts connected to the Internet shall
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make the information contained in the [SARC] . . . accessible on the Internet and the information
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shall be updated annually. Educ. Code 35258 (emphasis added); see also id. 33126.1(l) (Local
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Education Code section 35256(c) provides that [t]he governing [b]oard of each school district shall
annually issue a School Accountability Report Card for each school in the school district, publicize
such reports, and notify parents or guardians of students that a copy will be provided upon request.
Educ. Code 35256(c) (emphasis added).
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educational agencies shall make these [SARCs] available through the Internet or through paper
copies (emphasis added)).
It is a basic principle of statutory construction that [i]f the words [of the statute] themselves
are not ambiguous, we presume the Legislature meant what it said, and the statute's plain meaning
governs. Wells v. One2One Learning Found., 39 Cal. 4th 1164, 1190 (2006). In describing a
districts SARC duties, as set forth above, the Legislature consistently uses the word shall, the
ordinary meaning of which is an order, a promise, a requirement, or an obligation. The American
Heritage College Dictionary 1251 (Houghton Mifflin, 3d ed. 1997) (hereinafter, American Heritage
Dictionary). Moreover, under the Education Code definitions and a well-settled principle of
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statutory construction, the word shall is mandatory. Common Cause v. Bd. of Supervisors, 49 Cal.
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3d 432, 443 (1989); Educ. Code 75 (Shall is mandatory and may is permissive.).
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Hence, the plain language of the statutes regarding issuing and publicizing yearly SARCs
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online is clear. This is a mandatory obligation, and every school district is required to or shall
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issue and publicize a SARC for each elementary or secondary school under its jurisdiction. See
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Educ. Code 35256(c). In addition, those districts connected to the Internet shall update SARC
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information and post the SARC online. See id. 35258; see also id. 33126.1(l); Cal. Const., art.
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XVI 8.5(e). Moreover, school districts must fulfill these obligations annually (Educ. Code
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35256(c), 35258), in other words, on a yearly basis (American Heritage Dictionary, supra at 55).
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The CDE interprets annually to mean once in a school year. CDE, Frequently Asked
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Questions 8, at http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 9, 2007). The CDE
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further explains that [s]ince SARCs must be prepared and disseminated before the end of the school
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year to comply with the law . . . [districts] must prepare and disseminate new SARCs sometime during
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the period of November through May of each year. Id. As the agency charged with monitoring
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district compliance with SARC duties (Educ. Code 33126.1(m)),7 the CDEs interpretation of
annually to mean by the end of May for each school year is entitled to consideration and respect.
MHC Operating Ltd. Pship v. City of San Jose, 106 Cal. App. 4th 204, 219 (2003) (citing Yamaha
Corp. of Amer. v. State Bd. of Equalization, 19 Cal. 4th 1, 7 (1998) and finding that [a]n agency
interpretation of . . . a statute is entitled to consideration and respect by the courts given the agencys
special familiarity with statutes within its jurisdiction).
Taken together, the provisions in the State Constitution and Education Code regarding
annually issuing and publicizing the SARCs impose upon OUSD a nondiscretionary, ministerial duty
to issue, publicize, and post online updated SARCs for each district school by May 31st of every
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school year. Yet, as of August 10, 2007, the District failed to meet these mandatory duties for many
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district schools. In particular, more than a year after May 31, 2006, Respondents failed to issue,
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publicize, and post online 2004-05 SARCs for 10 district schools, and two and a half months after
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May 31, 2007, Respondents failed to issue, publicize, and post online 2005-06 SARCs for 16 district
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schools. (See Pet. 24, 26; Exh. 4.)
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II.
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DUTIES UNDER EDUCATION CODE 33126(b) TO PROVIDE PARENTS AND THE
PUBLIC WITH ESSENTIAL INFORMATION ON SCHOOL SITE CONDITIONS.
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Respondents have a ministerial and nondiscretionary public duty to ensure that SARCs contain
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key information about each district school, as enumerated by Education Code section 33126(b).
Section 33126(b) states that [t]he [SARC] shall include, but is not limited to, assessment of the
following school conditions . . . . Educ. Code 33126(b) (emphasis added); see also id. 35256(a)
(The [SARC] shall include, but is not limited to, the conditions listed in Education Code Section
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33126.). Again, the use of the word shall indicates that inclusion of the information in section
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33126(b) on the SARCs is mandatory. See American Heritage Dictionary, supra at 1251 (defining
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Section 33126.1(m) states that the CDE shall monitor compliance of local educational agencies with
the requirements to prepare and to distribute school accountability report cards. Educ. Code
33126.1(m).
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shall as an order, a promise, a requirement, or an obligation); see also Common Cause, 49 Cal. 3d
at 443; Educ. Code 75. Section 33126(b) goes on to list the precise information that school districts
shall include on their SARCs. Id. 33126(b).
Despite the clear and mandatory obligation to disclose all the information set forth in
Education Code section 33126(b) for each district school, Respondents failed to provide such
information on OUSDs 2004-05 and 2005-06 SARCs. (Pet. 24.) In particular, as of August 10,
2007, Respondents failed to disclose critical information on teacher qualifications and placement as
well as per pupil expenditures and the average of teacher salaries as set forth herein. (Pet. 24, 28,
30.)
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A.
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Respondents Failed to Provide Required Data, Pursuant to Education Code

33126(b)(5), on Teacher Misassignments and Teacher Vacancies.
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On the SARCs, Respondents have a nondiscretionary and ministerial public duty to report the
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number of teacher misassignments and teacher vacancies at each district school for the most recent
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three-year period. See Educ. Code 33126(b)(5). Under Education Code section 33126(b)(5), the
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SARC:
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shall include . . . [t]he total number of the schools fully credentialed teachers, the
number of teachers relying upon emergency credentials, the number of teachers
working without credentials, any misassignments, including missassignments of
teachers of English learners, and the number of vacant teacher positions for the most
recent three-year period.
Id. (emphasis added).
A teacher misassignment occurs when a teacher is providing instruction on a particular subject
matter without the proper credential or statutory authorization to do sofor example, an English
teacher providing Algebra instruction. See id. 33126(b)(5)(B). A misassignment can also occur
when a teacher lacking the proper credential or authorization to teach students classified as English
learners is assigned nonetheless to teach English learner students. See id. A vacancy occurs when no
qualified, permanent teacher has been assigned to teach a course at the beginning of the school year or
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semester. See id. 33126(b)(5)(A). When there is a teacher vacancy, students typically receive
instruction from a series of substitute teachers who lack appropriate subject matter credentials. (Pet.
27.)
With respect to both the 2004-05 and 2005-06 SARCs that have been prepared for OUSD
schools, Respondents failed to provide required information for the most recent three-year period on
teacher misassignments and vacancies for each district school. For the 2004-05 SARCs that OUSD
has issued, as of August 10, 2007, Respondents failed to disclose required information on teacher
misassignments at 19 schools and teacher vacancies at 21 schools. For the 2005-06 SARCs that
OUSD has issued, as of August 10, 2007, Respondents failed to disclose required information on
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teacher misassignments at 76 schools and teacher vacancies at 82 schools. (See Pet. 24, 28; Exhs.
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5, 6.)
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B.
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Respondents Failed to Provide Required Data, Pursuant to Education Code

33126(b)(3), on Per Pupil Expenditures and the Average Teacher Salaries.
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On the SARCs, Respondents have a nondiscretionary and ministerial public duty to report the
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estimated per pupil spending and the average teacher salaries for each district school. Pursuant to
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section 33126(b)(3) of the Education Code, SARCs shall include an assessment of [e]stimated
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expenditures per pupil and types of services funded as well as the average of teacher salaries at each
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district school. Educ. Code 33126(b)(3). Specifically:
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[t]he assessment of estimated expenditures per pupil shall reflect the actual salaries of
personnel assigned to the schoolsite . . . . shall be reported in total, shall be reported in
subtotal by restricted and by unrestricted source, and shall include a reporting of the
average of actual salaries paid to certificated instructional personnel at that schoolsite.
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Id.8 For the 2005-06 SARCs that have been prepared, as of August 10, 2007, Respondents have failed
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to disclose required information on estimated expenditures per pupil at 96 schools, and further, have
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The law has required reporting of estimated expenditures per pupil, and types of services funded
on the SARC since the passage of Proposition 98 in 1988. See Prop. 98 7, adding Educ. Code
33126. A 2005 legislative amendment clarified this requirement by inserting the preceding language
quoted from section 33126(b)(3). See S.B. 687, Stats. 2006, ch. 358 1.5. Although this amendment
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not provided the required information on average teacher salaries at 96 schools. (See Pet. 24, 30;
Exhs. 7, 8.)
The two articulated legislative purposes of the SARC make clear that the information to be
included in all SARCs, as set forth in section 33126(b), is of vital importance to parents, like
Petitioners, and the public. First, in a statement that immediately precedes the listing of the mandated
contents for each SARC, the Legislature explicitly states its intent that [t]he [SARC] shall provide
data by which a parent can make meaningful comparisons between public schools that will enable him
or her to make informed decisions on which school to enroll his or her children. Educ. Code
33126(a). Moreover, Proposition 98, which created the SARC, articulated the importance of the
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document to ensure that our schools spend money where it is most needed and to guarantee
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accountability for dollars spent. Prop. 98 2(e). Thus, by failing to provide complete SARCs,
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containing statutorily required school site information on teacher misassignments and vacancies, per
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pupil expenditures, and the average teacher salaries, Respondents have deprived and continue to
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deprive the public and parents like Petitioners of their right to essential information on individual
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school site conditions.
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III.

DUTY UNDER EDUCATION CODE 48985(a) TO TRANSLATE SARCS INTO
LANGUAGES OTHER THAN ENGLISH.
Respondents failed to comply with their nondiscretionary public duty to translate SARCs into a
language other than English for schools where 15% or more of the students speak another single
primary language. Pursuant to section 48985(a):
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[i]f 15 percent or more of the pupils enrolled in a public school . . . speak a single
primary language other than English, . . . all notices, reports, statements, or records
sent to the parent or guardian of any such pupil by the school or school district shall, in
addition to being written in English, be written in the primary language . . . .
24
25
26
27
28
took effect on January 1, 2006, and applies to the 2004-05 SARCs due by May 31, 2006, Petitioners
only seek to enforce this reporting requirement for the 2005-06 SARCs.
_______________________________________________________________________________________________

10
Educ. Code 48985(a) (emphasis added). Again, pursuant to the plain meaning of the word shall,
translation of documents where 15% or more of the students at a school speak a single primary
language other than English is mandatory. See American Heritage Dictionary, supra at 1251 (defining
shall as an order, a promise, a requirement, or an obligation); see also CDE, Frequently Asked
Questions 9, at http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 7, 2007) (stating that
the translation requirements [of Education Code 48985] apply to the SARC just as they apply to
any other written communication that a district or school prepares for the purpose of informing a
students parent or guardian).9
Moreover, pursuant to Education Code section 33126(d), the SARC is to be provided to
10
parents in a manner that makes it easy to read and understandable. Educ. Code 33126(d).
11
Specifically,
12
[i]t is the intent of the Legislature that schools make a concerted effort to notify parents
of the purpose of the [SARCs], . . . and ensure that all parents receive a copy of the
report card; . . . ensure that the report cards are easy to read and understandable by
parents; . . . and to ensure that administrators and teachers are available to answer any
questions regarding the report cards.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Id. (emphasis added).10 To be easy to read and understandable (id.), it is inherent that the SARC
should be translated where required by section 48985(a). This is supported by federal law that dictates
that local educational agencies shall . . . publicly disseminate annual accountability report cards to
9
As the entity charged with monitoring the compliance of districts with their SARC duties (Educ.
Code 33126.1(m)) and designated by the Legislature to determine the types of documents and
languages a school district translates to a primary language other than English [and] the availability of
these documents to parents or guardians who speak a primary language other than English (id.
48985(b)), the CDEs interpretation of districts translation obligations with respect to dissemination
of the SARC is entitled to consideration and respect. MHC Operating Ltd. Pship, 106 Cal. App.
4th at 219.
10
In addition, the Legislature has emphasized the importance of the SARC as a document directed to
parents. See, e.g., Educ. Code 33126(a) (The [SARC] shall provide data by which a parent can
make meaningful comparisons between public schools . . . (emphasis added)); id. 35256(c) (The
governing [b]oard of each school district shall annually issue a [SARC] for each school . . . and notify
parents or guardians of students that a copy will be provided upon request. (emphasis added)). To
fulfill the purposes of the SARC, parents should be given the SARC in their primary language.
_______________________________________________________________________________________________

11
all parents of students attending [district] schools in an understandable and uniform format . . . . No
Child Left Behind Act (NCLB), 20 U.S.C. 6311(h)(2)(E) (emphasis added). California uses the
SARC to comply with this federal requirement.11

Despite these mandates, for the past academic year, Respondents have flouted their duty under
4
5
section 48985(a) to translate the SARCs into a language other than English for each OUSD school
where 15% or more of the students speak another single primary language. (Pet. 24, 33.) As of
August 10, 2007, Respondents failed to translate the 2005-06 SARCs into Spanish for 36 district
schools where Spanish is the primary language for 15% or more of the students and into Chinese for 7
schools where Chinese is the primary language for 15% or more of the students. (See Pet. 24, 33;
10
11
Exh. 9.)12
IV.
12
PETITIONERS ARE ENTITLED TO A WRIT OF MANDATE TO COMPEL

RESPONDENTS TO COMPLY WITH ALL THEIR NONDISCRETIONARY SARC
DUTIES PURSUANT TO THE STATE CONSTITUTION AND EDUCATION CODE.
13
Pursuant to sections 1085 and 1086 of the Code of Civil Procedure, [a] writ of mandate may
14
15
be issued by any court to any inferior tribunal, . . . board, or person, to compel the performance of an
act which the law specially enjoins, as a duty resulting from an office, trust, or station . . . (Civ. Proc.
16
Code 1085) and must be issued in all cases where there is not a plain, speedy, and adequate remedy,
17
in the ordinary course of law (id. 1086). California courts have long recognized that issuance of a
18
19
writ of mandate is appropriate to compel a public agency to perform its mandatory duties under law.
See Santa Clara County Counsel Attys Ass'n v. Woodside, 7 Cal. 4th 525, 539 (1994) (The
20
21
22
23
24
25
26
27
28
11
According to the CDE, a thoroughly completed SARC fulfills the federal NCLB requirement for
district accountability report cards. See Frequently Asked Questions 5, at
http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 17, 2007).
12
Petitioners relied upon information available on the CDE website for determining whether a school
has 15% or more pupils that speak a primary language other than English. See CDE, 2005-06
Language Data for Districts and Schools, at http://www.cde.ca.gov/ls/pf/cm/ld0506bylg.asp (last
visited Aug. 3, 2007).
_______________________________________________________________________________________________

12
availability of writ relief to compel a public agency to perform an act prescribed by law has long been
recognized.) (citing Berkeley Sch. Dist. v. City of Berkeley, 141 Cal. App. 2d 841, 849 (1956)).
Here, Petitioners seek to compel Respondents to comply fully with their nondiscretionary
duties to provide updated, complete, and, when required, translated SARCs for each district school for
the 2005-06 and 2006-07 academic years. Specifically, Respondents have failed to satisfy their
explicit statutory duties to issue, publicize, and post annually updated and complete 2004-05 and
2005-06 SARCs for each district school. See Educ. Code 35256(c), 35258; see also id. 33126.1(l);
Cal. Const., art. XVI 8.5(e). Moreover, for the SARCs that have been prepared, Respondents have
failed to include essential data on teacher misassignments and vacancies, as well as per pupil
10
expenditures and the average teacher salaries for each district school. See Educ. Code 33126(b)(3),
11
(5). Finally, Respondents have not met their mandatory duty to translate the 2005-06 SARCs into
12
another language if 15% or more of the students at a school speak a single primary language other than
13
English. See id. 48985(a).
14
Respondents failure to comply fully with their SARC duties for the past two academic years
15
has robbed parents, like Petitioners, and the public of their right to essential information with which to
16
compare OUSD schools and hold Respondents accountable for how funds are being spent on district
17
schools. See id. 33126(a)); Prop. 98 2(e). Respondents violation of the SARC requirements, as
18
set forth herein, have left Petitioners no adequate remedy at law other than to seek a writ of mandate to
19
compel Respondents to perform their ministerial duties and remedy the continuing effects of their past
20
unlawful actions.
21
When public officials have violated their ministerial duty and that violation has caused
22
derivative effects, writ relief may encompass an order both to follow the law as well as to remedy the
23
continuing effect of their past unlawful actions. Lockyer v. City & County of San Francisco, 33 Cal.
24
4th 1055, 1113 (2004); see also Union of Amer. Physicians & Dentists v. Kizer, 223 Cal. App. 3d 490,
25
503-04 (1990) (issuing a writ to invalidate audits performed under unlawful regulations and ordering
26
the agency to cure the past effects of that violation by allowing individuals to seek reimbursement of
27
28
_______________________________________________________________________________________________

13
funds paid pursuant to invalid audits). Moreover, the nature of the relief warranted in a mandate
action is dependent upon the circumstances of the particular case. Lockyer, 33 Cal. 4th at 1113.
Here, because Respondents failure to issue and publicize updated SARCs at all or to issue and
publicize complete SARCs may not have been known to parents in the District or to the public, it is
critical that, in addition to issuing complete SARCs, Respondents be required to: (a) notify district
parents and guardians, at the very least, of the Districts failure and its subsequent remedying of its
SARC deficiencies, and (b) meet continuing SARC obligations by May 31st (or an earlier date
established by law) each year.
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
Accordingly, a writ of mandate is appropriate here to require Respondents to:

(1) comply fully with all SARC obligations, and in particular to: (a) immediately issue,
publicize, and post online updated 2004-05 and 2005-06 SARCs for every district school,
and (b) provide required information on teacher misassignments and vacancies in the
2004-05 and 2005-06 SARCs, pursuant to Education Code section 33126(b)(5), and per
pupil expenditures and average teacher salaries in the 2005-06 SARCs, pursuant to
Education Code section 33126(b)(3);
(2) translate the 2005-06 SARCs into a language other than English for schools where 15% or
more of students speak a single primary language other than English, pursuant to Education
Code section 48985(a);
notification that: (a) this Court has found Respondents in violation of their SARC
obligations and ordered Respondents to correct those deficiencies, and (b) complete
2004-05 and 2005-06 SARCs are available on the Internet for each OUSD school, with
hard copies available at the school site upon request;
(4) translate such written notification issued pursuant to subsection (3) above, into primary
languages other than English for parents or guardian of each student enrolled in a district
school where 15 percent or more of the students speak that primary language; and
(5) comply fully with their SARC obligations henceforth, by May 31st of each school year or
such earlier date as may be fixed by law.
Petitioners request a preliminary return to the writ within 30 days to demonstrate compliance
with the above numbers (1)-(4), and a final return to the writ, shortly after the 2006-07 SARC is due
26
27
28
_______________________________________________________________________________________________

14
for the 2007-08 school year, to ensure Respondents have reformed their SARC reporting mechanisms
and are complying fully with their SARC duties going forward.
Such relief is necessary and just to reverse the past and continuing effects of Respondents
statutory violations and meet the twin purposes of the SARC requirements by providing parents and
the public with valuable information to which they are entitled under the State Constitution and
statutes.
7
8
9
CONCLUSION
WHEREFORE, Petitioners respectfully request that a peremptory writ of mandate in the first
10
instance issue under the seal of this Court commanding Respondents to perform their ministerial duties
11
as set forth herein.
12
13
14
15
16
JOHN T. AFFELDT
ANGELICA K. JONGCO
JENNY PEARLMAN
17
18
19

20
21
By:
JENNY PEARLMAN
22
23
24
ANGELICA K. JONGCO
25
26
27
28
_______________________________________________________________________________________________

15
1
2
3
4
5
6

Tel. (415) 431-7430
Fax (415) 431-1048
7
8
9

10
11
12
13

and JO ANN SIBLEY,
14
16
17
18
19
20
v.
21
22
[PROPOSED]
ORDER GRANTING PETITIONERS
VERIFIED PETITION FOR WRIT OF
MANDATE
VIA FAX
Petitioners,
15
Respondents.
Case No. RG07-340358

Time: 9:00am
Dept: 31
23
24
25
26
27
28
PROPOSED ORDER
VERIFIED PETITION FOR WRIT OF MANDATE
1
2
3
Petitioners Motion for Peremptory Writ of Mandate came on for hearing on October 11, 2007.
Based on the pleadings, papers, and the oral arguments of counsel, this Court concludes as follows:
1.
Respondents failed to comply fully with the clear, present, and ministerial duties to
issue, publicize, and post online annually updated 2004-05 and 2005-06 School Accountability Report
Cards (SARCs) for each school in Oakland Unified School District (OUSD or the District),
including those schools listed in Exhibit 4 of the Verified Petition for Writ of Mandate, pursuant to
Article XVI section 8.5(e) of the California Constitution, sections 2(e), 6, and 8 of Proposition 98, and
sections 33126.1(l), 35256(c), and 35258 of the Education Code;
2.
Respondents further failed to comply fully with the clear, present, and ministerial duty
10
to ensure each 2004-05 and 2005-06 SARC contains important information about school site
11
conditions, pursuant to section 33126(b) of the Education Code. In particular, Respondents failed to
12
provide required information on (a) 2004-05 and 2005-06 SARCs about teacher misassignments and
13
vacancies (Educ. Code 33126(b)(5)) for each district school, including those schools listed in
14
Exhibits 5 and 6 of the Verified Petition for Writ of Mandate, and (b) 2005-06 SARCs regarding an
15
assessment of [e]stimated expenditures per pupil and types of services funded, including a
16
reporting of the average of actual salaries paid to certificated instructional personnel at that
17
schoolsite (id. 33126(b)(3)) for each district school, including those schools listed in Exhibits 7 and
18
8 of the Verified Petition for Writ of Mandate;
19
3.
In addition, Respondents failed to comply fully with the clear, present, and ministerial
20
duty, pursuant to section 48985(a) of the Education Code, to translate 2005-06 SARCs into a primary
21
language other than English for every district school where 15% or more of the students speak that
22
other primary language, including those schools listed in Exhibit 9 of the Verified Petition for Writ of
23
Mandate. By this failure, Respondents have deprived Petitioners, parents or guardians who speak a
24
primary language other than English, and the public of their right to access, in a meaningful way, vital
25
information about OUSD schools; and
26
27
4.
Respondents failure to comply fully with their SARC obligations as set forth above
has deprived Petitioners, parents or guardians with children enrolled in OUSD schools, and the public
28
PROPOSED ORDER
2
of important information about the quality of learning opportunities and school site conditions with
which to compare district schools and guarantee accountability for the dollars spent on schools in the
District.
Accordingly, IT IS HEREBY ORDERED that a peremptory writ of mandate in the first
instance issue under the seal of this Court commanding Respondents State Administrator of OUSD,
Kimberly Statham; Governing Board of OUSD; and State Superintendent of Public Instruction Jack
OConnell, (collectively, Respondents) to:
8
9
(1) comply fully with all SARC obligations and, in particular, to comply with
a. Article XVI section 8.5(e) of the California Constitution, sections 2(e), 6, and 8 of
10
Proposition 98, and sections 33126.1, 35256(c), and 35258 of the Education Code by
11
immediately issuing and publicizing, including on the Internet, complete 2004-05
12
SARCs and 2005-06 SARCs for each district school, including the schools specifically
13
14
b. Section 33126(b)(5) of the Education Code by providing required information in the
15
2004-05 and 2005-06 SARCs for each district school on teacher misassignments and
16
teacher vacancies, including the schools specifically identified in Exhibits 5 and 6 of
17
Petitioners Verified Petition for Writ of Mandate; and
18
c. Section 33126(b)(3) of the Education Code by providing required information in the
19
2005-06 SARCs for each district school on estimated expenditures per pupil, and on the
20
average of actual teacher salaries, including the schools specifically identified in
21
Exhibits 7 and 8 of Petitioners Verified Petition for Writ of Mandate;
22
(2) comply with section 48985(a) of the Education Code by translating the 2005-06 SARCs into
23
primary languages other than English for district schools where 15 percent or more of the
24
students speak a primary language other than English, including the schools specifically
25
26
27
notification that: (a) this Court has found Respondents in violation of their SARC obligations
28
PROPOSED ORDER
3
and ordered Respondents to correct those deficiencies, and (b) complete 2004-05 and 2005-06
SARCs are available on the Internet for each OUSD school, with hard copies available at the
school site upon request;
(4) provide the parent or guardian of each student enrolled in a district school where 15 percent or
more students speak a primary language other than English with written notification in that
primary language that: (a) this Court has found the Respondents in violation of their SARC
obligations and ordered Respondents to correct those deficiencies, and (b) translated 2005-06
SARCs for their childs school are available on the Internet, with hard copies available at the
school site upon request; and

(5) comply fully with their SARC obligations annually, by May 31st of each school year or such
10
11
earlier date as may be fixed by law;
12
(6) make and file a return to the writ within 30 days from the date of the issuance of the writ
13
demonstrating that Respondents have complied with each element of the directives of this
14
order; and
15
(7) make and file a final return to the writ demonstrating that they have complied fully with their
16
SARC obligations for the 2007-08 school year (with respect to 2006-07 SARCs) by no later
17
than June 6, 2008 or, if an earlier date has been fixed by law, by no later than one week after
18
such earlier date.
19
Based on the foregoing, Petitioners Verified Petition for Writ of Mandate is hereby GRANTED.
20
21
Dated: _________, 2007
Judge, Alameda County Superior Court
22
//
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24
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26
27
JOHN T. AFFELDT
28
PROPOSED ORDER
4
JENNY PEARLMAN
ANGELICA K. JONGCO
2
3

4
5
By:
JENNY PEARLMAN
6
7
8
ANGELICA K. JONGCO
9
10
11
12
13
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15
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19
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21
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28
PROPOSED ORDER
5

Quezeda Motion Brief 8.20.07

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1

JOHN T. AFFELDT (SBN 154430)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

GRISELDA QUEZADA, MARTHA ORTEGA,

Case No. RG07340358

Cal. Civ. Proc. Code 1085

Hearing Reservation #745246

an order directing issuance of a peremptory writ of mandate commanding Respondents Kimberly

Respondents), immediately upon receipt of the writ, to:

immediately issuing and publicizing, including on the Internet, complete 2004-05

identified in Exhibit 4 of Petitioners Verified Petition for Writ of Mandate;

b. Section 33126(b)(5) of the Education Code by providing required information in the

teacher vacancies, including the schools specifically identified in Exhibits 5 and 6 of

Petitioners Verified Petition for Writ of Mandate; and

c. Section 33126(b)(3) of the Education Code by providing required information in the

average of actual teacher salaries, including the schools specifically identified in

Exhibits 7 and 8 of Petitioners Verified Petition for Writ of Mandate;

identified in Exhibit 9 of Petitioners Verified Petition for Writ of Mandate;

school site upon request;

school site upon request; and

such earlier date.

documentary evidence to be presented at the hearing on this motion.

Dated in San Francisco, California, on the 20th day of August 2007.

JOHN T. AFFELDT (SBN 154430)

SUPERIOR COURT OF THE STATE OF CALIFORNIA

GRISELDA QUEZADA, MARTHA ORTEGA,

Case No. RG07-340358

KIMBERLY STATHAM, State Administrator of

Cal. Civ. Proc. Code 1085

Hearing Reservation #745246

amended since 1988).

See id. 48985(a).

MEMORANDUM OF POINTS AND AUTHORITIES IN

Districts ongoing failure to live up to these obligations.

Instruction Jack OConnell (collectively, Respondents) to comply with the Districts

entitled under the California Constitution and state statutes.

MEMORANDUM OF POINTS AND AUTHORITIES IN

MEMORANDUM OF POINTS AND AUTHORITIES IN

years. (Pet. 24.)

years. (Pet. 19, 24.)

report required information in 2005-06 SARCs on teacher misassignments at 76 schools, teacher

MEMORANDUM OF POINTS AND AUTHORITIES IN

duties and remedy the continuing effects of Respondents statutory violations.

RESPONDENTS FAILED TO COMPLY WITH THEIR NONDISCRETIONARY

ministerial public duties to:

MEMORANDUM OF POINTS AND AUTHORITIES IN

copies (emphasis added)).

ordinary meaning of which is an order, a promise, a requirement, or an obligation. The American

Questions 8, at http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 9, 2007). The CDE

MEMORANDUM OF POINTS AND AUTHORITIES IN

special familiarity with statutes within its jurisdiction).

schools. (See Pet. 24, 26; Exh. 4.)

RESPONDENTS FAILED TO COMPLY WITH THEIR NONDISCRETIONARY

MEMORANDUM OF POINTS AND AUTHORITIES IN

shall include on their SARCs. Id. 33126(b).

Respondents Failed to Provide Required Data, Pursuant to Education Code

MEMORANDUM OF POINTS AND AUTHORITIES IN

Respondents Failed to Provide Required Data, Pursuant to Education Code

district school. Educ. Code 33126(b)(3). Specifically:

MEMORANDUM OF POINTS AND AUTHORITIES IN

school site conditions.

RESPONDENTS FAILED TO COMPLY WITH THEIR NONDISCRETIONARY

MEMORANDUM OF POINTS AND AUTHORITIES IN

Questions 9, at http://www.cde.ca.gov/ta/ac/sa/questions.asp (last visited Aug. 7, 2007) (stating that