California Department of Education
California High School Exit Exam
Litigation Report for Fiscal Year 2009-10
August 9, 2010
This report to the Legislature is made pursuant to Item 6110-001-0001 of Section 2 of the Budget Act of 2009. It reports on the expenditures of funds appropriated for legal representation from the office of the Attorney General in litigation related to the California High School Exit Examination (CAHSEE) and provides an update on any such litigation. Three cases concerning the CAHSEE were pending during the Fiscal Year (FY) 2009–10: (1) Kidd, et al. (formerly Chapman) v. Superintendent of Public Instruction, et al. [Alameda County Superior Court, No. 2002 049636]; (2) Coachella Valley Unified School District, et al. v. State of California, et al. [San Francisco Superior Court No. CPF 05-505334]; and (3) Coachella Valley USD, et al. v. State of California, et al. [Appeal, Court of Appeal, First District, A120667].
This case was filed in July 2002, on behalf of students eligible for an Individualized Education Program (IEP) pursuant to the Individuals with Disabilities Act or a Section 504 Plan pursuant to the Rehabilitation Act of 1973 who are required to take the CAHSEE. Defendants are the California Department of Education (CDE), the State Board of Education (SBE), and the State Superintendent of Public Instruction (SSPI). Defendants are represented by staff from the office of the Attorney General and the CDE. Plaintiffs are represented by Disability Rights Advocates and Chavez & Gertler, LLP.
In January 2006, the Legislature passed a bill that implemented the terms of the proposed agreement reached by the parties at the mediation held on July 26, 2005 (SB 517). This statute required districts to grant high school diplomas to disabled students scheduled to graduate in 2006, provided specified criteria were met. In August 2006, the Legislature passed SB 267 which extended the exemption with minor modifications to the class of 2007. Because of the passage of SB 267, litigation was relatively inactive for much of FY 2006–07. The SB 267 exemption was repealed effective December 31, 2007 .
The parties reached a partial settlement which was approved by the court May 30, 2008. The settlement requires CDE to retain an independent external consultant to conduct a study examining students who have taken, but not passed, the CAHSEE with the modifications and/or accommodations specified in their respective Individualized Education Plans (IEPs) or 504 plans, and who have satisfied or will satisfy all other requirements for graduation from high school. CDE issued a Request for Proposal (RFP) to retain a consultant to conduct the required study. Plaintiffs filed a motion seeking attorneys’ fees in the amount of approximately $4.2 million. A court hearing on the request was held in September 2008. The court required additional briefing during this second quarter. On March 4, 2009, the court ordered defendants to pay attorneys fees of $1,527,122.00. The plaintiffs filed a supplemental claim for $116,985.00 in attorneys’ fees. On May 1, 2009 the parties stipulated to payment of $1,585,122.00 which consists of the amount ordered by the court, a compromise of the $116,985.00 and interest at 6 per cent from April 14, 2009 through date of payment. The attorneys’ fees were paid on May 26, 2009.
The settlement is being implemented. Specifically, the CDE contracted with an independent consultant to study whether there were students who were unable to pass the CAHSEE, but could otherwise demonstrate the knowledge tested by the CAHSEE. In addition, AB 2040 was enacted, which required that special education students be exempted from the requirement to pass the CAHSEE until a panel studied the viability of alternative means. While the study under the Kidd settlement and the work of the AB 2040 panel are separate, they are related, and both have been closely monitored by plaintiffs’ counsel and the Attorney General’s office. The issue of whether there is a feasible alternative means to the CAHSEE is before the SBE.
This case was filed on February 8, 2006. Defendants, SSPI, CDE and SBE are represented by staff from the office of the Attorney General. It was a Class Action filed on behalf of all students in the class of 2006 who passed all the required courses for high school graduation but who did not pass the CAHSEE. Plaintiffs asserted: (1) the CAHSEE violates students’ fundamental right to public education, it deprives students of the “fruits of their education” and it is not necessary to serve a compelling state interest; (2) the CAHSEE violates students’ equal protection rights because the state failed to provide students with an equal and reasonable opportunity to pass the exam; unfairly allocated the $20 million in remediation funds and because the exam unfairly stigmatizes and punishes a discrete class of students (English learners); (3) the SBE and SSPI failed in their obligation to conduct a good faith study of alternatives as required by California Education Code (EC) Section 60856; and (4) defendants violated students’ due process rights afforded by the California Constitution because they have a property interest in receiving a diploma which the state is improperly denying.
On May 12, 2006, the court issued a preliminary injunction enjoining defendants from denying a student a high school diploma for failing the CAHSEE. Defendants sought review of the trial court decision by the California Supreme Court and asked that the court stay the injunction pending that review. The court stayed the injunction, thereby reinstating the requirement that students successfully meet the high school exit exam requirement as a condition of receiving a high school diploma, and remanded the matter to the First District Court of Appeal for briefing and argument.
On August 11, 2006, the Court of Appeal overturned the trial court’s decision, concluding that court’s order directing defendants not to withhold diplomas to students who did not pass the CAHSEE exceeded the court’s authority. Plaintiffs did not seek Supreme Court review. At the urging of the Court of Appeal, the parties engaged in settlement discussions. The parties reached a proposed settlement, contingent on the adoption of legislation (AB 347). This bill was signed by the Governor and effective October 12, 2007. The court approved the settlement and entered judgment in the case October 30, 2007. While the case is now closed, the court continues to assert jurisdiction over the implementation of AB 347.
SBX3 4 provided for flexibility for many education programs. Funds available for implementation of the Valenzuela settlement were included in this flexibility. Specifically, three critical Valenzuela budget items (CAHSEE Intensive Instruction/Item 6110-266-0001, Supplemental Counseling/Item 6110-108-0001, and County Superintendent oversight/Item 6110-266-0001) were all placed into the Tier III category. In addition, it appears that pursuant to EC Section 42605(d) districts and county offices of education may not have to comply with the notice, service, reporting, and oversight responsibilities established by AB 347, if they use the flexibility option provided by EC Section 42605. Plaintiffs’ litigation counsel have urged CDE to seek to restore these obligations and indicated that they will be monitoring the effects of this flexibility on the implementation of these identified programs.
Following the passage of the FY 2009–10 budget, and the implementation of the flexibility of the categorical programs, plaintiffs filed a pleading with the Superior Court that the settlement was “stayed” during the period of the flexibility. The court did not take any action yet on this issue, but has scheduled a further case management conference for September 24, 2010.
Coachella Valley Unified School District and Appeal
This matter was filed in June 2005. The State of California, Governor, and SBE are represented by staff from the office of the Attorney General. The SSPI and CDE are represented by staff from CDE. Plaintiffs allege that the state’s assessment system violates the No Child Left Behind Act of 2001 (NCLB) because it is based on tests administered in English only. According to the complaint, such assessments are not a valid and reliable measure of the knowledge of students who are English learners. In addition, plaintiffs allege a violation of English learners’ rights under the California Constitution to basic equity in education in a manner that is non-discriminatory and avoids stigmatizing or punishing them. As a remedy, plaintiffs seek court orders directing that: (1) test results and rankings in the accountability system be withheld until primary language assessments or assessments with additional accommodations are developed; (2) the state cease administration of current versions of the CAHSEE and California Standards Tests to students enrolled in U.S. public schools for less than three years; and (3) CDE survey the need for tests other than those given in English and to develop such tests.
In June of 2007, the San Francisco Superior Court issued a final ruling on the petitioners’ first cause of action for writ of mandate. The court held that NCLB does not set forth mandatory duties which the court can enforce, but merely discretionary duties. The court further found that the State’s exercise of discretion in administering these duties was not arbitrary, nor capricious. Constitutional and declaratory relief claims remain to be adjudicated.
On February 1, 2008, petitioners filed an appeal in the First District Court of Appeal from the Superior Court's denial of the writ of mandate. On March 18, 2008, San Francisco Superior Court Judge Kramer stayed plaintiffs' remaining San Francisco Superior Court claims pending the appellate court proceedings pursuant to plaintiffs' and defendants' stipulation. The appellate briefing is complete.
On May 18, 2009, the Appellate Court heard oral argument on this matter. On July 30, 2009, the Court of Appeal issued its decision, ruling that the state’s testing system did not violate the NCLB and that the SBE did not abuse its discretion when it adopted the current testing scheme for English learners. On August, 17, 2009, appellants filed a Petition for Rehearing which was denied by the Court on August 20, 2009. Appellants offered to dismiss the remaining constitutional claims in exchange for a waiver of costs. On October 2, 2009, the parties finalized the settlement, and on December 4, 2009, appellants/plaintiffs dismissed all remaining claims “without prejudice.”
CDE has interagency agreements for the services of the Office of the Attorney General during FY 2009–10 in the above litigation. Set forth below are the amounts paid by quarter of FY 2009–10.
CAHSEE Litigation Expenditures