School District’s Refusal to Place Item on Board Meeting Agenda was Not Abuse of Discretion

July 2012

In Mooney v. Garcia (June 26, 2012, H037233) __ Cal. App. 4th __, the Court of Appeal held that the school district did not abuse its discretion when it denied a request by a member of the public to place an item on the school board’s agenda.  The court further held that such decisions by a school board are discretionary and not purely ministerial acts.   

Norina Mooley is the parent of a student who attends Castillero Middle School in the San Jose Unified School District.  On March 18, 2011, the “Gay-Straight Alliance,” a student club at the school, hosted a student-led “Rainbow Day” to promote anti-bullying awareness for gay, lesbian, bisexual and transgender students.  Mooney requested that the District place on the Board’s agenda an item proposing that “Rainbow Day” be changed to an “all-inclusive anti-bullying day.”  The District denied her request because the proposed item was not within the Board’s subject matter jurisdiction as the Board does not direct specific activities at individual schools.

Mooney filed a petition for writ of mandate under Code of Civil Procedure section 1085, seeking to compel the District to place her proposed item on the Board’s agenda.  The trial court denied her petition, and Mooney appealed.

On appeal, the court reviewed Education Code section 35145.5 (“Section 35145.5”), which states that it is “the intent of the Legislature that members of the public be able to place matters directly related to school district business on the agenda of school district governing board meetings.”  Section 35145.5, in pertinent part, also requires school districts to adopt “reasonable regulations” to insure this intent is carried out, and to specify “reasonable procedures” to insure the proper functioning of board meetings.

Mooney argued that Section 35145.5 imparted a “ministerial duty” upon the District, meaning that the District must place her proposed item on the Board’s agenda, and does not have discretion to deny her request.  The appellate court disagreed, finding that Section 35145.5 provides school districts with discretion in this area.  The court noted that the Legislature’s use of the words “intent” and “be able” does not indicate that it intended Section 35145.5 to be “an inflexible mandate.”  Rather, the court found that Section 35145.5 requires that proposed agenda items be “directly related to school district business,” which inherently requires the District to exercise some judgment on which proposed items are placed on the agenda.  Finally, the court found that, by requiring that school boards develop “reasonable regulations” and “reasonable procedures,” the Legislature established that it was providing for the exercise of discretion by school districts rather than mandating a purely ministerial act.

Thus, the court held that Section 35145.5 permitted the District to exercise discretion when it receives proposed agenda items from the public.  Moreover, on the facts of this case, the court held that the District had not abused its discretion by denying Mooney’s request.  The court found that the District’s determination that Mooney’s proposed agenda item did not directly relate to District business was supported by the evidence.  Specifically, the court agreed that an isolated student activity at a single school site was inadequately related to District business to merit Board consideration given that the Board did not direct activities at specific schools. 

Finally, Mooney argued that because the Board’s regulations required it to approve the creation of new student clubs, her proposed item was sufficiently “related to school district business” because it was related to a student club activity.  The court disagreed, noting that the proposed agenda item was aimed at changing the annual “Rainbow Day” club activity, and not at creating a new club.  However, the court expressly refrained from giving on opinion on whether the District would have had an obligation to place on its agenda a proposed item concerning the independent creation of an anti-bullying club.

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F3 NewsFlash prepared by Jennifer R. Rowe Gonzalez and Lyndsy B. Rutherford.

 Jennifer is a partner in the F3 Fresno office.

Lyndsy is an associate in the F3 Los Angeles office.

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