CALIFORNIA CHARTER SCHOOLS ASSOCIATION v. LOS ANGELES UNIFIED SCHOOL DISTRICTRespondent’s Reply Brief on the MeritsCal.October 10, 2013 COPY Case No. 8208611 IN THE SUPREME COURT SUPREME COURT OF THESTATE OF CALIFORNIA | FILED OCT 10 2013 CALIFORNIA CHARTER SCHOOLS ASSOCIATION, Plaintiffand Respondent, Frank A. M cGuire Clerk . v. Deputy LOS ANGELES UNIFIED SCHOOL DISTRICT,e¢ al. Defendants and Appellants. After a Decision by the Court of Appeal Second Appellate District, Division Five Case No. B242601 Los Angeles Superior Court Case No. BC438336 Honorable Terry A. Green, Presiding Judge, Dept. 14 REPLY BRIEF ON THE MERITS LATHAM & WATKINS LLP CALIFORNIA CHARTER SCHOOLS James L. Arnone (Bar No. 150606) ASSOCIATION . Winston P. Stromberg (Bar No. 258252) Ricardo J. Soto (Bar No. 167588) Vanessa C. Wu (Bar No. 274336) Julie Ashby Umansky(Bar No. 183342) Michele L. Leonelli (Bar No. 280867) Phillipa L. Altmann (Bar No. 186527) 355 South Grand Avenue 250 East 1“ Street, Suite 1000 Los Angeles, California 90071-1560 Los Angeles, California 90012 Telephone: (213) 485-1234 Telephone: (213) 244-1446 Facsimile: (213) 891-8763 Facsimile: (213) 244-1448 Email: james.arnone@!w.com Email: paltmann@calcharters.org Attorneys for Plaintiff and Respondent California Charter Schools Association Case No. 8208611 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA CALIFORNIA CHARTER SCHOOLS ASSOCIATION, Plaintiffand Respondent, . V. LOS ANGELES UNIFIED SCHOOLDISTRICT,etal. Defendants and Appellants. After a Decision by the Court of Appeal Second Appellate District, Division Five Case No. B242601 Los Angeles Superior Court Case No. BC438336 Honorable Terry A. Green, Presiding Judge, Dept. 14 REPLY BRIEF ON THE MERITS LATHAM & WATKINS LLP CALIFORNIA CHARTER SCHOOLS James L. Arnone (Bar No. 150606) . ASSOCIATION Winston P. Stromberg (Bar No. 258252) Ricardo J. Soto (Bar No. 167588) Vanessa C. Wu (Bar No. 274336) Julie Ashby Umansky (Bar No. 183342) Michele L. Leonelli (Bar No. 280867) Phillipa L. Altmann (Bar No. 186527) 355 South Grand Avenue 250 East 1“ Street, Suite 1000 Los Angeles, California 90071-1560 Los Angeles, California 90012 Telephone: (213) 485-1234 Telephone: (213) 244-1446 ' Facsimile: (213) 891-8763 Facsimile: (213) 244-1448 Email: james.arnone@]w.com Email: paltmann@calcharters.org Attorneys for Plaintiff and Respondent California Charter Schools Association TABLE OF CONTENTS Page I. INTRODUCTION ........ecesccssssescssececsecsscescesseeecsseecetsssessevssevssevseses 1 TT. ARGUMENTou... eesssesssssseessssssseesseesssseccesssecessisecssssnsesssessusesssunesssseees 3 A. The Implementing Regulations Do Not Allow LAUSD To Use District-Wide Norming Ratios When Allocating Classroom Space To Charter Schools Unnder Prop. 39 oo. eescssesessesessecessesesessessesssesssseesessesneseesseesase 3 B. Equitable Sharing Is The Heart Of Prop. 39, As Reflected In The Facilities Inventory Language Of Implementing Regulation Section 11969.3, Subdivision (D)(1) ..... ceesscescesessssseeeesecssrsesesseseesessesescesseesoess 7 Cc, LAUSD’s Singular Focus On The Word“Provided” Contravenes Rules Of Construction .........ccccsessesceeeesseeeees 11 1. LAUSDErroneously Interprets The Word “Provided” To Mean Teachers Staffing A ClASSPOOM 0.0... eeeeeeceeeesseeseeseeseesceesesseesseassarenseseseesens 13 2. LAUSDDefies The Carefully Designed Regulatory Scheme Developed By The Department And Board ...... ce ceccesesssseeseesssseceressseesees 14 3. The Regulation’s Title Supports CCSA’s POSIION0... eeeeeeeeeeeeeteeeeceseceseesseeesecsecsesssessessssenerseees 16 D. LAUSDInappropriately Manufactures A New Evidentiary Record At The Eleventh Hour And Misrepresents The Facts In This Case 0.0... .cccccssssceseseeseees 17 1, LAUSD’s Attempt To Use Judicial Notice To Create A New Factual Record Is Improper................ 18 2. LAUSD’s New Claim That CCSA’s Interpretation Of The Regulation Will Harm Police Services At LAUSD Schools Has No Support In The Record .00.......ccccceccsesesssesssesessesssesens 22 3. LAUSD’s“Facts” Do Not Reflect Current CONILIONS 0... eeeeeeseetecsecseesseeescesseesseeestesseseeteesseess 23 TABLE OF CONTENTS Page 4. LAUSDDisingenuously Claims That CCSA’s Interpretation Will Require LAUSD To Offer Charter Schools Space At Ratios Approximating 10 To 15 Students Per ClaSSTOOM.......cseeseessseseeceseteneesesseesessceecstsaseesarseesceaees 26 5. The Settlement Agreement Does Not Authorize LAUSDTo Violate The Implementing Regulations. ........ccsscsccsescsssssescsssscesscseeesecseaesensneneess 28 E, Compliance With CCSA’s Interpretation Will Not Yield Anomalous Results ........cccsssesescssscsssensesessesessssseseees 29 1. CCSA’sDiscussion Regarding Classrooms Occupied By Charter Schools At Comparison Group Schools Is Not Contradictory........ccceceeeeeee 29 2. CCSA’sInterpretation Regarding Counting Unbuilt Classrooms Also Is Not Contradictory ......... 3] 3. Section 1859.32 Of The Greene Act Regulations Removes Certain Preschool] And Adult Education Classrooms From Section 1859.31?s INVeNtOTY .....ec eceeseceseesseeseecsscsseenneeeseeens 3] F, Bullis Supports The Position That LAUSD Must Count All Available Classrooms At Comparison Group SCHOOIS oo... eeeeeceeesseesececeaceaesaesseesessessseseseceaessecessesssanesesees 34 G. LAUSD’s Reliance On Hartzell And Ripon Is Misplaced 0.0... ccesesseseesseeseeeesesseaceseseseesesscsaesaesseseeceeeeesesaes 35 TH. CONCLUSION....icecneseeecnerceeceasereseeseessessesseeerecsecacsseseeenees 36 il TABLE OF AUTHORITIES Page(s) CASES Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 1022.00... ccc cccscsessscssssscssevscsscssssevsssvsceasees 34, 35 California Teachers Assn. v. Governing Bd. OfRialto Unified School Dist. (1997) 14 Cal.4th 6270.ceesesssesesseceesseesesecseneseseesacseaseesenscecseseeesesees 36 Doe v. City ofLos Angeles (2007) 42 Cal.4th 531eeeeeccseessesssessescsessessessesseseeseescsesecsssesssesseenses 32 Filip v. Bucurenciu (2005) 129 Cal.App.4th 825.0... ccssscseessstssssssessseescssseessatssseesseetssessees 28 Governing Board ofRipon Unified School District v. Commission on Professional Conduct (2009) 177 Cal.App.4th 1379.0... .ccccessscssescssesceseeseseseresesscseesssssusssess 35, 36 Governing Board ofthe Palos Verdes Unified School Dist. v. Felt (1976) 55 Cal.App.3d 156... ccccscsscsscsssscsscesecsseseessecsessessesssersessesessecseras 4. Hartzell v. Connell (1984) 35 Cal.3d 899... cccccecescsccsscssssssessccssseccssetevessscessecsaseaseesaeese 2, 35 Herrera v. Deutsche Bank National Trust Co. (2011) 196 CalApp.4th 1366.00.00... cc ccescssesssessecssessscssscnsssesrsssssssveserseeas 19 Hoitt v. Dept. ofRehabilitation . (2012) 207 Cal.App.4th 513.0...coesaeeteaeeteneseaeeneasstensssensaesneeseenenes 32, 34 Jolley v. Chase Home Finance, LLC (2012) 213 CalApp.4th 872 0.0... cscccsessescscessessesseeseessesssseseesssessessssaeess 21 Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342... cccccssesssccrscsesesseceessssssceseeessensavaeens 17 League ofResidential NeighborhoodAdvocates v. City ofLos Angeles (9th Cir. 2007) 498 F.3d 1052... ecseceseeseeseseeseseeeeeseesesenecsesesseseseeateaes 28 Lockyer v. City and County ofSan Francisco (2004) 33 Cal.4th 1055.ceecsecesscneteessenessseseesvsessesesseessssceesseseeaeeasaes 9 ili TABLE OF AUTHORITIES Page(s) Los Angeles International Charter High School v. Los Angeles Unified SchoolDistrict (2012) 209 CalApp.4th 1348 oooecseceeseccessessessesesesseetesssseseensreeees 10 People v. De La Plane (1979) 88 Cal.App.3d 223oeecsssscssesctsecnecsssceessecseesseseesesessseceseesesesens 20 People v. Peevy (1998) 17 Cal4th 1184...eeeeeseseeceecssetsessessesseesesaesesseeeserens 17, 20 People v. Shabazz (2006) 38 Cal 4th 55ceeeceeestesececeeceeneesecssesseesssnessseaseasseseenes 2, 12, 14 Price v. Starbucks Corp. (2011) 192 CalApp.4th 1136...eeccssceseceecssessesesesesesseseeseeeees 14, 23 Rao v. Campo (1991) 233 Cal.App.3d 1557ececesessseessssesecesecnesssssesssrscsesssseessess 23, 29 Ridgecrest Charter School v. Sierra Sands Unified School Dist. (2005) 130 CalApp.4th 986.00...eecescnccenseecsecsseeseescasentesesssesseensenes 6, 7 Trancas Property Owners Assn. v. City ofMalibu (2006) 138 Cal.App.4th 172... seessseeseessecsecseceseescsecsesseessseeseesesseens 28 United Teachers ofLos Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal 4th 504oecscessssecessenesseesseesecsessrereesessesessesaeseesesens 36 Vons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal4th 434ooceeesseeeeeescteeessssseesessseeeeesseseseessenesensens 19 Yamaha Corp. ofAmerica v. State Bd. ofEqualization (1998) 10 Cal4th Loneecesrseeeseesseceessecsesaressssesseeseeseseeesaseasenees 9 STATUTES Code Civ. Proc., § 1858.0... cccceescessssscessecensessessssecessesesssesseesseessesesesssseneecens 11 Ed. Code, § 35160 oo. ciceeecsecsesssescneceececeeseseseaesseeesessecseeetseenssseeeees 2, 35, 36 Ed. Code, § 47614, subd. (8)......ccccccecccessccesercesseccessstecnevessssessscsesenssssesanees 7 Ed. Code, § 47614, subd. (D)(6) ....... ec cececsssesssesseeesesceseesstesescssseescesssesees 2,8 iv TABLE OF AUTHORITIES Page(s) Ed. Code, § 48200 oo... esssssscssseseesessescsesssesssessesesseecseesesseecsesscseseaeseseeaees 21 Ed, Code, § 75 ...ccccsccsssssescsssccssecsecesscenscesscoessscssessessscsecaeserscsssessecassscssavenenase 4 | REGULATIONS Cal. Code Regs., tit. 2, § 1859.31... ccccecccecesscesessessesessssesscvsssscnsees passim Cal. Code Regs., tit. 2, § 1859.31, subd. (f) ....ccccceccccesscescesssessesevsecsnsseeens 33 Cal. Code Regs., tit. 2, § 1859.31, subd. (2) occ cccsecseesseseseeceeeeessenees 33, 34 Cal. Code Regs., tit. 2, § 1859.32... sseestseseseseeereeseeeteeeeeesesesenees 32, 33 Cal. Code Regs.,tit. 2, § 1859.32, subd. (f) vcece ceessecesseesessersesenens 22, 33 Cal. Code Regs., tit. 5, § 11969.) ooeeeccccseccecssessrseeeesevsesssecssessessscases 1 Cal. Code Regs., tit. 5, § 11969.3....eeecsssesssessesessscessssesseeesssesseseeneens 2,4 Cal. Code Regs., tit. 5, § 11969.3, subd. (b) on...ec cceecesescesssesssesseeseenes 16 Cal. Code Regs., tit. 5, § 11969.3, subd. (D)(1).....cee eessesesseesseesens passim Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(3)..... ccc eccseesesseseeeeeeeees 33, 34 Cal. Code Regs., tit. 5, § 11969. 1Loeececsecssesssccsseseeversseessesssseseeses 1 OTHER AUTHORITIES Ballot Pamp., Gen. Elec. (Nov. 7, 2000), text of Prop. 39, § 2(e), p. 73, at http://vote2000.sos.ca.gov/VoterGuide/pdf/textproposedlaws.pdf........ 7 Merriam-Webster’s Online Dict. (2011) http://www.merriam- webster.com/dictionary/Capacity ........cccccccccccsssscsscessessessssesessseescrsseessueeuse 16 I. INTRODUCTION The Los Angeles Unified School District (“LAUSD”) tries to obscure the simple legal question at the crux of this appeal: do the quasi-legislative implementingregulations’ adopted by the State Board of Education (“Board”) allow a schooldistrict to use district-wide “norming ratios” to allocate classroomsto charter schools under Prop. 39? The answeris no. The Implementing Regulations and their detailed regulatory history make no mention of “norming ratios”or any similar concept. As applied to Prop. 39’s regulatory scheme, “norming ratios” are an LAUSD fabrication designed to short-change charter school pupils from receiving reasonably equivalentfacilities under Prop. 39. LAUSD’sapplication of “normingratios”artificially caps the numberof classroomsofferedto charter schools, leaves space vacant or underutilized, and allows LAUSD to divert schoolfacilities away from their primary purpose of educating K-12 students. LAUSDaccuses CCSA of promoting an “unfair” interpretation of the Implementing Regulations. To the contrary,it is not the role of LAUSDoranyother schooldistrict unilaterally to change the Board’s facilities sharing methodology under Prop. 39. In approving Prop.39, the voters delegated that role to the Department of Education (“Department”) ' Cal. Code Regs., tit. 5, §§ 11969.1 — 11969.11 (“Implementing Regulations”). and the Board. (Ed. Code, § 47614, subd. (b)(6).) Understanding some schooldistricts’ inherent resistance to sharing facilities with charter schools, the Department and Board undertook two thorough rulemaking processes to develop regulations governing how schooldistricts are to share public school facilities with charter schools. (Cal. Code Regs., tit. 5, § 11969.3.) The quasi-legislative rules the Board adoptedareentitled to deference, and school districts may not violate them. (Ed. Code, § 35160; Hartzell v. Connell (1984) 35 Cal.3d 899 (Hartzell).) In an attempt to evade review ofits non-compliance with Prop. 39, LAUSDhasfabricated an interpretation of the regulation at issue on appeal. LAUSDfocusessolely on one word in the regulation—“provided”—but that singular focus contravenes well-established canons of construction dictating that a statute’s or regulation’s meaning should not be determined by analyzing just one word. (People v. Shabazz (2006) 38 Cal.4th 55, 67- 68 (Shabazz).) Further, having failed to submit any admissible evidence below showing how compliance with the clear methodology of Implementing Regulations section 11969.3, subdivision (b)(1), will cause the dire results it claims, LAUSD nowseeks to make a newfactual record in this Court. The timeto create a factual record on this matter has long passed. LAUSD’sinappropriate request for judicial notice should be denied. This case boils down to the fact that LAUSD doesnotlike the competition charter schools bring. LAUSD viewsstudents attending public charter schools as being no different than students attending private schools, and LAUSDviewsparents’ and students’ choices to attend charter schools as a problem it needsto restrict. (See CCSA’s Conditional Request for Judicial Notice, Exh. A,at pp. 25-26.) LAUSDmaynotfabricate its norming ratios concept and applyit to cap its offers to charter schools. Thetrial court was correct to order LAUSDto stop doing so. The Court of Appealerred in reversingthe trial court based on LAUSD"s speculation that there might be “anomalous results” from following the rules as written. Il. ARGUMENT A. The Implementing Regulations Do Not Allow LAUSD To Use District-Wide Norming Ratios When Allocating Classroom Space To Charter Schools UnderProp. 39 Despite LAUSD’soft-repeatedassertion that its use of district-wide normingratios to allocate classroom space to charter schools complies with Implementing Regulations section 11969.3, subdivision (b)(1) (e.g., AnswerBrief(“AB”) pp. 18-20, 44-45), theplain languageof the — regulation andits regulatory history provide no support for that position. Nowherein the regulation or the Final Statements of Reasons is the concept of a “normingratio,” which is a classroom loading standard, or other similar district-wide averaging methods discussed. That is because the Departmentand the Board did notintend to authorize schooldistricts to use such shortcuts that fail to consider their entire classroom inventory when fulfilling their mandatory duties under Prop. 39 to provide reasonably equivalent facilities to charter schools. Instead, the Implementing Regulations establish a precise methodology each school district must follow to ensure that the district provides reasonably equivalent facilities to each eligible charter school requesting facilities. Implementing Regulations section 11969.3 states that “[t]he following provisions shall be used’ to determine whethera charter schoolis provided reasonably equivalent facilities as required by Prop. 39. (Cal. Code Regs., tit. 5, § 11969.3, emphasis added.) LAUSD has no discretion to deviate from that clearly outlined procedure. (See Ed. Code, § 75 [“‘Shall’ is mandatory and ‘may’is permissive.”]; Governing Board of the Palos Verdes Unified School Dist. v. Felt (1976) 55 Cal.App.3d 156, 163 [“The definition of ‘shall’ as mandatory in the pertinentprovision of the Education Codeitself requires that absent someindication that the statutory definition was not intended, it must be applied.”].) The plain language of section 11969.3, subdivision (b)(1), establishesthat a schooldistrict (i) must calculate the comparison group schools’ projected average daily attendance (“ADA”) and(ii) must determine the numberofteachingstations (classrooms) at the comparison group schools “using the classroom inventory prepared pursuant to 4 California Code of Regulations, title 2, section 1859.31, adjusted to exclude classrooms identifiedas interim housing.” To determine the number of classroomsthat must be provided to the charter school, the schooldistrict must calculate the classroom-to-ADAratio by dividing the numberof classroomsat the comparison group schools by the comparison group schools’ projected ADA, and then multiply that ratio by the charter school’s projected in-district ADA. (Cal. Code Regs.,tit. 5, § 11969.3, subd. (b)(1).) LAUSDcriticizes CCSA for advocating a “mechanical approach”to implementing this clear regulation. (AB, p. 2.) CCSA’s approach merely follows the regulation’s plain language, which the Board promulgated and which the Departmentexplained in the Final Statement of Reasons. It is LAUSDthat takes an inappropriate mechanical approach, applyingits district-wide normingratios as a shortcut. The Department madeclear that a schoo]district must undertake the calculations described in section 11969.3, subdivision (b)(1), when determining whetherthe capacity of facilities offered to a charter school are reasonably equivalent to those of the comparison group schools. The Final Statement of Reasonsfor the original Implementing Regulationsstates: The first test is the number of teaching stations; the subdivision requires that charter schools be provided facilities that have the same ratio ofteaching stations to ADA 5 as comparison group schools. To account for the possible addition of schools and classrooms to the school district’s inventory, the comparisons are calculated based on the projected number of teaching stations and projected ADA. Charter school ADA is in-district classroom ADA because this ADA figure is the basis for the entitlement to facilities under Education Code section 47614. Teaching stations are calculated based on an established methodologyin California Code of Regulations, Title 2, Section 1859.30, excluding portable classrooms that are temporarily available for renovation purposes. (Final Statement of Reasons for Original Implementing Regulations, p. 6, emphasis added.) Great weight should be given to the Final Statement of Reasons. (Ridgecrest Charter Schoolv. Sierra Sands Unified School Dist. (2005) 130 Cal.App.4th 986, 1000 (Ridgecrest).) Nowhere doesthe regulation or the Final Statement of Reasonsstate that if a school district uses district-wide normingratios to assign students to classroomsat its own schools,that district may skip the comparison group schools’ students-to-classrooms calculations and imposeits norming ratios on charter schools. To the contrary, the Final Statement of Reasons states that the reasonable equivalency determination should not be based ondistrict-wide averages. (Final Statement of Reasons for Original Implementing Regulations, pp. 5-6.) LAUSDisfree to use normingratios to make its ownstaffing and budgetary decisions, thereby determining how manystudentsit will assign on average to classroomsat the schools that it operates. But LAUSD may not use its norming ratios instead of the regulation’s specific methodology to limit how manyclassroomsit shares with charter schools. B. Equitable Sharing Is The Heart Of Prop. 39, As Reflected In The Facilities Inventory Language Of Implementing Regulation Section 11969.3, Subdivision (b)(1) Prop. 39 is anchored by the concept of sharing public school facilities fairly. (Ed. Code, § 47614,subd. (a).) That is especially so becauseprior to Prop. 39’s passagecharter schools struggled without equitable access to facilities and could only ask for leftover space after schooldistricts satisfied their own needs. (Ridgecrest, supra, 130 Cal.App.4th at pp. 998-999.) Prop. 39’s requirement that schooldistricts share facilities fairly with charter schools was designed to remedythat inequity. In adopting Prop. 39, the voters found that “[s]tudents in public charter schools should be entitled to reasonable access to a safe and secure learning environment.” (Ballot Pamp., Gen. Elec. (Nov. 7, 2000), text of Prop. 39, § 2(e), p. 73, at http://vote2000.sos.ca.gov/VoterGuide/pdf/textproposedlaws.pdf.) Prop. 39’s “reasonably equivalent” and “shared fairly” provisions meanthat, “to the maximum extent practicable, the needs of the charter school must be given the same consideration as those ofthe district-run schools....” (Ridgecrest, supra, 130 Cal.App.4th at p. 1001.) LAUSDclaimsthat its “norming ratios approach” (whichit calls the “Provided Approach”) ensures that facilities are shared fairly. LAUSD ignores the fact that it was up to the Department and the Board, not LAUSD,to determine how schooldistricts must share facilities fairly. In promulgating the Implementing Regulations, the Department and Board understood Prop. 39’s mandate that public schoolfacilities must be shared fairly amongall public school pupils. (See Final Statement of Reasonsfor Original Implementing Regulations, pp. 1-2.) In exercising their delegated rulemaking authority (see Ed. Code, § 47614, subd. (b)(6)), the Department and Board undertook a rigorous processto craft detailed regulations governing how schooldistricts must comply with Prop. 39. The Department and Board chose to incorporate a regulation implementing anotherstatute (the Leroy F. Greene SchoolFacilities Act, Cal. Code Regs., tit. 2, § 1859.31) to specify how school districts must count classroomsat comparison group schools for Prop. 39 purposes, because that regulation already contained an “established methodology” that would be useful for counting classrooms under Prop. 39 (Final Statement of Reasonsfor Original Implementing Regulations, p. 6.) LAUSDand other schooldistricts participated extensively in that rulemaking process, without raising any concern over incorporating by reference that classroom-counting method. (Final Statement of Reasonsfor Original Implementing Regulations, pp. 17-18; RJN in support of Opening Brief, Exh. D, pp. 191-193.) Implementing Regulations section 11969.3, subdivision (b)(1), is a quasi-legislative rule promulgated under specific enabling legislation,soit is binding authority. (Yamaha Corp. ofAmerica v. State Bd. of Equalization (1998) 10 Cal.4th 1, 10.) A subordinate governmental body, like LAUSD,hasno discretion to ignore statewide regulatory commands simply becauseit subjectively believes that the regulation is inconsistent with the “intent” of the statute under which it was promulgated. (See,e.g., Lockyerv. City and County ofSan Francisco (2004) 33 Cal.4th 1055, 1080-1082.) Moreover, it is LAUSD’suse of “normingratios” that is inherently inequitable. LAUSD’s approach would meanthat it would only share facilities based on what it actually choosesto use as a classroom,rather than on the classroomsit actually has and could use as classrooms. As CCSAexplainedin its Opening Brief, LAUSD’s methodologyitself leads to absurd results, allowing LAUSD to exclude classroomsit does not use on a full-time basis orthat it uses to support classroom instruction,e.g., storageor staff lounges. (Opening Brief (“OB”), p. 41.) Conversely, there is nothing “unfair” about CCSA’sposition that LAUSD must comply with the regulation’s plain language and not use normingratios as an inequitable shortcut.” That methodis fair becauseit ensures that schooldistricts do not have an incentive to put critically needed classroom space to marginal uses, and, in so doing, exclude them from charter schools’ use. To that end, LAUSD’s claim that CCSA expects LAUSDto accommodate charter school students in conditions materially better than and unequalto those provided to students attending LAUSD-run schoolsis simply wrong. 3 CCSAasks only that LAUSD comply with the statewide Implementing Regulationsthat it is required to follow. Further, to try to bolster its claim that CCSA seeks “unfair” results, LAUSDstates that charter schools are often already provided with facilities at more favorable ratios than LAUSD. (AB,p. 15.) LAUSDoffers no evidence to support * LAUSDcites repeatedly to a statement made by CCSA’s counselat oral argument beforethe trial court. (AB, pp. 1, 39 [citing Reporter’s Transcript (“RT”), p. 7, lines 21-22].) That statementis taken out of context. In context, it is clear that CCSA’s counsel argued that enforcing the regulation as written is fair, and addedthe pointthat because the regulation is also clear and mandatory it was not necessary to have an untethered argument about fairness. Contrary to LAUSD’s disingenuous implication, CCSA’s counsel did not argue that the regulation was unfair but had to be followed anyway. LAUSD’scitation to Los Angeles International Charter High Schooly. Los Angeles Unified School District (2012) 209 Cal.App.4th 1348 (LAICHS) is inapplicable. (AB, pp. 2-3.). LAICHS is about LAUSD’s compliance with a writ, issued after LAUSDviolated Prop. 39, and involved facilities offer LAUSD made underjudicial compulsion in the middle of a schoolyear, rather than before the school year like the Implementing Regulations mandate. LAICHSnotesthe alleged burdens placed on the district when providing space to charter schools “in the midst of the school year.” (LAICHS, supra, 209 Cal.App.4th at pp. 1359-1360, 1362.) Those considerations are not relevant here. 10 that claim, and indeed it is LAUSDthat hasthe history oftreating charter schools unfairly. For instance, in the past, LAUSD hasoffered facilities to charter schools with upwards of 80 to 135 students per classroom. (Appellant’s Appendix, vol. 1, 22-23, 90 [hereinafter, [vol.] AA [pg.]].)* C. LAUSD?’s Singular Focus On The Word “Provided” Contravenes Rules Of Construction CCSA’sinterpretation of the regulation does not render meaningless the word “provided” as LAUSD contends. It is LAUSD’s promotion of the use of normingratios that renders portions of the regulation meaningless. CCSA’s interpretation gives all of the regulatory languageits proper meaning, without impermissibly “omit[ting] what has been inserted.” (Code Civ. Proc., § 1858.) CCSA does so by reading and applying the language of the facilities inventory regulation at California Code of Regulations,title 2, section 1859.31, in conjunction with the rest of section 11969.3, subdivision (b)(1). LAUSDclaimsthatit interprets the Implementing Regulations faithfully, giving each word its plain meaning. (AB,pp. 15-18.) But LAUSD’s “normingratios” approach requires this Court to ignore a * LAUSDalso misconstrues the Department’s commentin the Final Statement of Reasons that charter schools wouldsuffer the same level of overcrowding that school districts have. (AB, p. 33.) That statement relates to an actual lack of space when the unavailability of classrooms dictates how many students have to be put in a classroom. That statement doesnot relate to a schoo! district’s decision to place a larger numberof students in a classroom because of budgetary constraints that limit the numberof teachersit hires. 11 significant portion of section 11969.3, subdivision (b)(1). (See OB,pp. 24-26.) LAUSD’s interpretation would give no meaningto the last two sentences of the regulation, which require a school district to determine the numberofclassroomsto put in the classroom-to-ADAratio from the comparison group schoolsbyusing the specified classroom inventory. LAUSD’s approachboilsa detailed regulatory scheme downto a misreading of the dictionary definition of the word “provided.” (AB,p. 4.) LAUSDignores canonsof construction dictating that a statute or regulation’s meaning should not be determined by analyzing only one word. (Shabazz, supra, 38 Cal.4th 55, 67-68 [“The meaningofa statute may not be determined from a single word or sentence....”].) For reasons only LAUSDknows,it does not wantto “us[e] the classroom inventory” as required by section 11969.3, subdivision (b)(1). Perhaps it would require what LAUSD considers too much work to deviate from its current practice, or maybeit would reveal disparities between district neighborhood schools that LAUSD would rather not highlight. Whatever the reason, LAUSDdeals with it by bending over backwardsto justify ignoring the languagein the regulation altogether, or by offering interpretations to the language that have no legalbasis. 12 1. LAUSDErroneously Interprets The Word “Provided” To Mean TeachersStaffing A Classroom Unlike LAUSD, which ignores thefull text of the regulation, CCSA reads the regulation to give effect to all of its words. Children at LAUSD-runschools are providedall of the classrooms that must be accounted for underthe facilities inventory regulation. It is LAUSD’s choice to use someofthem as classrooms and somefor other purposes, which choices can change throughout the year. But LAUSDreadsthe, regulation as if it applies to teacher staffing. LAUSD’s normingratiosare based on the numberofteachers LAUSD decidesto hire for a school year, not on a calculation of the classrooms LAUSDactually has available for use. LAUSDignoresthe fact that a classroom can be “provided”to students even if it does not have an assignedteacher(e.g., by using an unstaffed classroom as a study room). LAUSD wants the Court to ignore any classroom in which LAUSD’s spendingpriorities have left that classroom without a teacher. LAUSD misreadsthe “dictionary definition”of “provided”to narrow the word to mean “used as a classroom”andstaffed with a teacher. (AB,p. 4.) LAUSDignoresthe fact that the dictionary definition does not foreclose the possibility that a classroom can be “provided”to students evenif it is used in some way other than having a teacherstationedinit. Classroomscan be “supplied” to students whether LAUSDactually assigns 13 a teacher to them or uses them in some other way to support students and their educational environment. LAUSD’self-serving definition of “provided”also ignores the remainderofthe regulation. The regulation must be read as a whole, notin isolated parts, and not by focusing on just one word. (Shabazz, supra, 38 Cal.4th at p. 67-68; Price v. Starbucks Corp. (2011) 192 Cal.App.4th 1136, 1145-1146 (Price).) Finally, recognizing that it cannot continue to ignore the regulation’s explicit incorporation of the facilities inventory, LAUSD now claimsthe facilities inventory only defines what a classroom is, not whetherthat classroom should be counted in determining whether a classroom is “provided”to students attending comparison group schools. LAUSD ignores the fact that under LAUSD’s newlycreated interpretation, the facilities inventory would serve no purpose. 2. LAUSDDefies The Carefully Designed Regulatory Scheme Developed By The Department And Board LAUSDcharacterizes this case as involving two competing interpretive schemes: LAUSD’s so-called “Provided Approach” and CCSA’s approach, which LAUSDlabels the “Inventory Approach.” In fact, LAUSD’s “Provided Approach”is just a short cut; a post hoc rationalization LAUSD concocted totry to defend its unlawful use of 14 norming ratios. The fiction of LAUSD’s “Provided Approach”defiesthe regulatory scheme developed over two rulemaking cycles. LAUSDignores that the Department and Boardintentionally included the Greene Actfacilities inventory regulation (Cal. Code Regs., tit. 2, § 1859.31) asa key component of Implementing Regulation section 11969.3, subdivision (b)(1), and explicitly designatedit as the means by which classroomsshould be counted at comparison group schools. LAUSDdismisses the Department and Board’s deliberate action, claiming that the Greene Act facilities inventory regulation is not a part of any regulatory scheme adopted to implement Prop. 39 and so somehow it must be given less weight. (AB, p. 5.) That the Greene Actfacilities inventory regulation originated outside of Prop. 39 does not impact its applicability to the Prop. 39 scheme, and -LAUSDpresents no authority to the contrary. If LAUSDobjected to using the inventory regulation in determining how toallocate classroomsto charter schools, it should have said so when the Board was considering the Implementing Regulations. Now,years later, LAUSD does not want to follow the regulation, so it has created an unlawful method of reducing the numberof classroomsit shares with charter schools. Despite LAUSD’s claimsthat it is reading the regulation faithfully, LAUSDinterprets the regulation by admittedly inserting extraneous language. (See AB, p. 17.) If the regulation was written as LAUSDasserts 15 it is to be interpreted, it would state that whether a classroom is eligible to be counted depends on whetherit is actually staffed with a teacher. The Board did not create such limitation. 3. The Regulation’s Title Supports CCSA’s Position LAUSD’s misreadingofthe dictionary definition of “provided”also ignores that there are other meaningful words in the regulation that have a dictionary definition supporting CCSA’s interpretation. The regulation here—section 11969.3, subdivision (b)(1)}—is one of three subparts of subdivision (b) of Implementing Regulations section 11969.3. That subdivision, titled “Capacity,” establishes the method for determining whetherthe capacity of a facility provided to a charter school is reasonably equivalent to the capacity of facilities in the comparison group. The Department and Board chose the word “capacity” when they titled this subdivision. Merriam-Webster, the same dictionary LAUSD cites, defines “capacity” as “the maximum amount or numberthat can be contained or accommodated.” (Merriam-Webster’s Online Dict. (2011) http://www.merriam-webster.com/dictionary/capacity, definition no. 2.b, emphasis added.) Assuch,the “capacity”of a facility is its maximum potential use. The Implementing Regulations’ use of the word “capacity”in this subdivision suggests that the Department and Board meant thatthis subdivision requires schooldistricts to take a hard look atall of the 16 classroomsat the comparison group schools, not just those classrooms schooldistricts decide to staff with a teacher. D. LAUSD Inappropriately Manufactures A New Evidentiary Record At The Eleventh Hour And Misrepresents The Facts In This Case Having failed to submit any admissible evidence below showing that compliance with the regulation’s clear methodology will cause any dire consequences, LAUSD nowinappropriately seeks to use judicial notice as a last-ditch attempt to manufacture an evidentiary record. As described in CCSA’s opposition to LAUSD’s motion requesting judicial notice (“RJN”), that is inappropriate. “[A]n appellate court generally is not the forum in whichto develop an additional factual record....” (People v. Peevy (1998) 17 Cal.4th 1184, 1207 (Peevy).) Nevertheless, LAUSD submits hundreds of pages of new information in its RJN, attempting to use those documents to prove the truth of the matters stated therein and makefactual inferences from certain documents that are pure speculation. Both are improper. Judicial notice may only be taken of the existence of certain documents, not the truth of the matters stated within those documents. (E.g., Klein v. Chevron U.S.A., Inc. (2012) 202 Cal.App.4th 1342, 1360, fn. 6.) LAUSD’srecitation of facts is inaccurate and disingenuous. LAUSDhasattempted to paint a picture of past logistical and financial hardship that bears little resemblance to the enrollment andfacilities 17 situation that exists at LAUSD today. Moreover, despite attemptsto tug at heartstrings, LAUSDstill cannot demonstrate that complying with the plain language ofthe regulation will cause any “unfair results.” Finally, LAUSD repeatedly takes information CCSApresentedto thetrial court out of context, improperly implying nefarious motives.” 1, LAUSD’s Attempt To Use Judicial Notice To Create A New Factual Record Is Improper In support of its Answer Brief, LAUSDseeksjudicial notice of (1) the text of ballot Measures Q and Y, bond measurespassed byvoters in 2008 and 2005, respectively; (2) LAUSD’s Academic Performance Index (“API”) Base Reports for 2005, 2011, and 2012; and (3) information from LAUSD’s website purportedly listing LAUSD elementary school campuses where preschool programs operate.© LAUSD relies on information within those documents to introduce alleged facts to the record for the first time. LAUSDrefers to CCSA as “a registered lobbyist corporation,” trying to imply something negative. (AB, p. 10.) LAUSD omits that CCSA registers that way because LAUSD requires it to do so. CCSA works on a daily basis with LAUSD on manycharter school-related issues, and so is required to register as a lobbyist organization under LAUSD’s Lobbying Disclosure Code. ° LAUSDalso requests judicial notice of President Obama’s 2013 State of the Union address, in which the President discussed the benefits of preschools. (LAUSD’s RJN,Exh. 6; AB,p. 41.) A presidential speech touching on preschools is hardly relevant to the issue on appeal(i.e., whether LAUSD’s use of normingratios to allocate facilities to charter schools violates the Implementing Regulations). In any event, CCSA notes that President Obamahasalso touted the importance of charter schools. (CCSA’s Conditional RJN, Exh. B.) 18 LAUSD’sattempt to augmentthe record via judicial notice comestoolate. (Yons Companies, Inc. v. Seabest Foods, Inc. (1996) 14 Cal.4th 434, 444, fn. 3.) LAUSD’s impropercitations cast a shadow ontheentire recitation of LAUSD’s“facts.” a. LAUSD Uses Ballot Measures Q And Y For The Truth Of The Matters Stated Therein LAUSDcites to two ballot measuresto assert that the overcrowding issues LAUSDhad inthe past are as much a problem asever, despite LAUSDcarrying out the largest school building program in the history of the United States at the same timeits enrollment plummeted. LAUSDcites those ballot measures forthe truth of the matters stated, quoting them nearly verbatim. (See CCSA’s Oppo. to LAUSD’s RJN,pp. 4-6.) While courts may take judicial notice of public records, they should not take judicial notice of the truth of factual matters stated therein. (Herrera v. Deutsche Bank National Trust Co. (2011) 196 Cal.App.4th 1366, 1375.) b. Correlating Increased API Scores To A Reduction In Classroom Size Is Pure Speculation LAUSDalsousesits flawed RJN to cite to its base API scores from 2005, 2011, and 2012, speculating without support that the modest increase in scoresis tied to the increased space resulting from LAUSD’s massive school construction program. (AB, pp. 9, 37; LAUSD’s RJN, Exh.3.) LAUSDoffers no proofthat the rise in API scores is connectedto, let alone 19 the productof, its increased facilities capacity. The connection is speculative and thusirrelevant. (CCSA’s Oppo.to LAUSD’s RJN,pp. 6-8; People v. De La Plane (1979) 88 Cal.App.3d 223, 242 [evidence which produces only speculative inferences is irrelevant evidence”], emphasis in original.) c. Lists Of Preschools From LAUSD’s Website Do Not Demonstrate That Preschools Use “Classrooms” They Would Lose To Charter Schools LAUSDrepeatedly asserts that CCSA’s interpretation of the regulation could have dire consequencesfor preschool programs. However, as CCSA madeclearin its Opening Brief, LAUSD hasnever presented any evidenceto support that claim, relying only on the same “sky-is-falling” rhetoric it has often used to try to shield itself from anyscrutiny ofits Prop. 39 violations. (OB, pp. 49-51.) Now,forthefirst time, LAUSD seeks Judicial notice of its own internet web pages discussing preschool programs in LAUSD,as well as lists ofLAUSD elementary schools housing such programs. (LAUSD’s RJN, Exhs. 4 & 5.) LAUSD’srequestis flawed. First, as with the sample ballot measures, LAUSDseeks to augment the factual record at the eleventh hour. The time has passedto introduce new facts. (Peevy, supra, 17 Cal.4th at p. 1207.) Second, citations to LAUSD’s own website are self-serving, and in no way meanthat the facts asserted in those documents are not reasonably 20 subject to dispute, (See CCSA’s Oppo. to LAUSD’s RIN,pp. 9-10; Jolley v. Chase Home Finance, LLC (2012) 213 Cal.App.4th 872, 889 [just because a document is on a public agency’s website does not meanits content is not reasonably subject to dispute].) That.is especially so given that the record demonstrates that LAUSDisin the process of building early education centers. (3 AA 674, 4 AA 866.) In any event, though preschool education is very valuable, it cannot take precedence over K-12 education. (Ed. Code, § 48200 [K-12 education is compulsory].) Third, even if the web pages andlists of preschool locations were not reasonably subject to dispute, LAUSD impermissibly cites to the factual statements in those documentsfor the truth of the matters stated, i.e., the number of LAUSD campuseshousing preschool programs. (See CCSA’s Oppo. to LAUSD’s RJN,pp. 9-10; see also AB,p. 9.) Finally, LAUSD’s web pages and lists say nothing about how many “classrooms” such programs occupy at the LAUSD elementary schools. LAUSDclaims CCSA’s interpretation of the regulation would require LAUSDto count classroomsactuallyused for preschools. But LAUSD cannot demonstrate that will occur because no evidence showsthat preschool programswill occupy “classrooms”actually required to be counted in the inventory under California Code of Regulations,title 2, section 1859.31. Further, as discussed below, preschool classrooms built or acquired with funds specifically allocated for preschool purposes need not 21 be includedin the inventory. (Cal. Code Regs.,tit. 2, § 1859.32, subd.(f).) As such, the “hypothetical” LAUSDpresents (AB,pp. 19-20), which assumesthat 4 out of 20 classroomsat a typical elementary schoolare used by preschools, is speculative and has no factual foundation.’ LAUSDhasfailed to produce any evidence to support its speculation regarding impacts to preschools and,in any event, preschools although important cannot take precedence over K-12 education. 2. LAUSD’s New Claim That CCSA’s Interpretation Of The Regulation Will Harm Police Services At LAUSDSchools Has No Support In The Record Forthe first time here, LAUSDstates that CCSA’s interpretation ‘would impact LAUSD’sprovision of police services. (/d.) There is no support in the record or otherwise for LAUSD’sassertion that police are operating out ofLAUSD classrooms. LAUSDcites only to one page from a Prop. 39 offer for the 2012-13 school year which states that LAUSDpolice protectall children at LAUSD campuses, including those attending charter schools. (9 AA 2418.) CCSArecognizes the important role that LAUSDpolice play, but LAUSD has not demonstrated that police actually occupyits classrooms,or that there is no way to accommodate ’ Through that “hypothetical” and others, LAUSD drawsthe focus to preschools, adult education, and police services. This distracts from the fact that LAUSD’s unlawful use of norming ratios meansthat any classroom not staffed with a teacher is not counted, allowing LAUSD to ignore even those classroomsthat are simplyleft vacant, or used for storage or staff lounges. 22 police and charter school students. Further, even if LAUSDreally does station police officers in classroomsthat could be offered to charter schools, that fact would not let LAUSDdisregardthe facilities sharing regulation. (See Rao v. Campo (1991) 233 Cal.App.3d 1557, 1567 (Rao); © Price, supra, 192 Cal.App.4th at pp. 1145-1146.) 3. LAUSD’s “Facts” Do Not Reflect Current Conditions LAUSDpaintsa picture of past unbearable financial andlogistical hardship resulting in overcrowding. Regardless of what happenedin the past, the evidence indicates that current conditions are quite different. It is undisputed that at the same time LAUSDhasbeen on an aggressive building spree over the past decade, its enrollment has plummeted. (2 AA 467-468.) At the sametime, demand for charter schools has grownat a rapid pace, but not even closeto the far greater pace at which LAUSD’s enrollment has declined. The narrative LAUSDconstructs is based almost exclusively upon the state of affairs at LAUSD schools betweenten and thirty years ago. (AB, pp. 6-8.) LAUSDenrollment may have increased between the mid-1980s and the mid-2000s, but since then,it has decreased dramatically. At the time LAUSDfiled its summary adjudication motion in 2010, LAUSDprojected its enrollment would drop by over 170,000 students 23 between the 2002-03 and 2012-13 school years—nearly 25 percentofits total enrollment. (2 AA 467-468.) LAUSD’sclaim thatits “enrollment decline has been offset by the 26,000 seats offered to charter school students” is incorrect. (AB,p. 7.) First, an offer that is so inadequateit is not accepted takes up no seats, and for the 2012-2013 school year only 16,000 seats in LAUSD-controlled campuses were actually occupied by charter school students. (AB,p. 12.) Second, the numberof students attending charter schools on LAUSD campusesis just a small fraction of LAUSD’sdrastic loss of students. LAUSD’s enrollment continues to plummetat a rate far exceeding the increase in charter school enrollment. If this Court is willing to consider LAUSD’s newly submitted evidence in its RJN, CCSA requests that the Court also consider recent LAUSD data showing projected enrollment at LAUSD-run schools and independent charter schools operating in LAUSDthrough the 2015-2016 school year. (See CCSA’s Conditional RJN, pp. 4, 9-10.) The data reveals that LAUSD expects the trend of rapidly decreasing enrollment to continue, projecting a decrease of another 55,000 students between the 2012-2013 and the 2015-2016 school years, while charter schools are anticipated to add an additional 28,000 students during that same period. (See Conditional RJN, Exh. C, pp. 194-195.) 24 The followingtable illustrates these projected enrollmentstatistics: 2012-2013School |2015-2016 School |Net Change YearEnrollment Year Enrollment | From 2012-13 School Type | (Actual) (Projected) to 2015-16 LAUSD- Run Schools 566,604 511,776 - 54,828 Charter Schools® 89,112 117,722 + 28,610 LAUSDclaimsthat its facilities remain crowded. (AB,p.8.) LAUSD’ssupport ofthose claims is based on old facts from many years past. Since 1997, the voters in Los Angeles have approvedbillions of dollars in bonds for the construction of new schools and upgrades to existing schools in LAUSD,with over 130 new K-12 schools having been constructed. (4 AA 1074, 1089; Conditional RJN, Exh A,p. 25.)° When this facilities expansion is coupled with LAUSD’slarge drop in enrollment over the past decade, along with its projected future drop, LAUSD’sclaim 8 Thesestatistics include charter schools occupying non-LAUSDfacilities and LAUSD-controlled facilities. Most charter schools in LAUSD do not occupy LAUSD-controlled facilities. For the 2012-2013 school year, only approximately 16,000 charter school students occupied LAUSD-controlled facilities (AB, p. 12), whichis less than 20 percent of charter school enrollment. ° LAUSDclaimscharter schools in LAUSD have benefitted from the direct allocation of bond funds. (AB, p. 7.) However, the funds allocated to charter school facilities under Measures K, R and Y pales in comparison to the billions of dollars allocated to building new and modernizing existing LAUSD-run schools. In addition, the $450 million allocated to charter schools’ facilities under Measure Q cannot be accessed for several years due to a decline in assessed property values. (4 AA 1075.) 25 that it cannot comply with the plain language ofthe regulation without causing dire results to students attending LAUSD-run schoolsrings hollow. 4, LAUSD Disingenuously Claims That CCSA’s Interpretation Will Require LAUSD To Offer Charter Schools Space At Ratios Approximating 10 To 15 Students Per Classroom LAUSDasserts repeatedly that CCSA’s interpretation of the Implementing Regulations will require charter schoo] students to be accommodatedatratios of between 10 to 15 students per classroom. (AB, pp. 2, 5, 30, 34.) LAUSD makes this assertion based on a chart that CCSA submitted in support of the motion underlying this appeal. (10 AA 2663.) The chart presented just one example of a Prop. 39 offer to demonstrate that the numberofclassroomsthat the exemplar charter school wasentitled to was significantly different from and muchhigher than those it was offered based on LAUSD’s unlawful use of normingratios. LAUSD cannot extrapolate from this single illustration to show that CCSA’s interpretation of the regulation would require that charter school students be accommodated at 10 to 15 students per classroom every time a charter school occupies LAUSDfacilities. Under the regulation’s formula, the numberof classrooms LAUSD mustoffer to a charter school must be based on an individualized calculation for each charter school dependent on the applicable comparison group schools. 26 In any event, contrary to LAUSD’sclaim (see AB,pp. 42-43), the record shows that LAUSD’s use of normingratios artificially reduces the numberof classrooms that LAUSDoffers charter schools. In letters responding to LAUSD’sProp.39 offers, charter schools noted that the offers did not provide the charter schools with enough classroomsto serve their students. (See 9 AA 2336; 10 AA 2625 [charter school offered 5 fewer classroomsthan currently using despite growth]; 10 AA 2608 [charter school offered 3 fewer classroomsthan currently using]; 10 AA 2609-2610 [charter school increased by63 students but was offered only one additional classroom].) Further, LAUSDcites to a table purportedly showing averageratios of students to classroomsat the comparison group schools selected for the various charter schools CCSA used as exemplarsin its motion. (AB, pp. 43-44.) LAUSDclaimsthat this “evidence” demonstrates that LAUSD provided facilities to charter schools in the sameratio of classrooms to ADAat comparison group schools. However, LAUSD neverprovided any foundational support for these purported “average ratios,” and merely included numbersin a chart attached to a conclusory declaration of LAUSD’sProp. 39 Program Manager. (10 AA 2719, 2724-2729, 2792, 2794.) Thetrial court correctly expressed skepticism with this information, noting “‘[t]hose are just numbers to me” (RT,p. 24, line 18), and did not rely on that information. Asa trial court’s evidentiary findings are 27 presumed correct, LAUSD’scitation to those numbers haveno probative value. (See e.g., Filip v. Bucurenciu (2005) 129 Cal.App.4th 825, 833 [an appellate court “must accept any reasonable interpretation of the evidence which supports the trial court’s decision”].) 5. The Settlement Agreement Does Not Authorize LAUSDToViolate The Implementing Regulations LAUSDalso implies that the April 22, 2008, settlement agreement (“Settlement Agreement”) it entered into with CCSAallowsit to deviate from Prop. 39’s legal requirements. (AB, pp. 9-10.) LAUSD misreads the | Settlement Agreementand ignores the law. Even if LAUSDcould dispense with its legal obligations in a settlement agreement, which it cannot, the Settlement Agreementclearly states at Paragraph 3 that LAUSD must make offers “that comply with Proposition 39 and any Proposition 39 implementing regulations in effect at that time.” (1 AA 64.) Moreover, the Settlement Agreement cannot reduce LAUSD’s statutory obligations, as “[a] settlement agreement cannot override state law absent a specific determination that federal law has been or will be violated.” (League ofResidential NeighborhoodAdvocates v. City ofLos Angeles (9th Cir. 2007) 498 F.3d 1052, 1053; see also Trancas Property Owners Assn. v. City ofMalibu (2006) 138 Cal.App.4th 172, 187.) LAUSDcannotavoid its Prop. 39 obligations by hiding behindits misreading of the Settlement Agreement. 28 E. Compliance With CCSA’s Interpretation Will Not Yield Anomalous Results LAUSD’sassertion that complying with the Implementing Regulations will yield “absurd” results remains nothing more than speculation, which assumes without evidencethat there is no non-absurd way LAUSD could makeoffers while following the rules. Evenif the mandatory classroom inventory formula might, in limited situations, present situations LAUSD wants to avoid, the Court should interpret the regulation to ensure thatall of its words are considered as a whole and harmonized to avoid any potential absurdity. (See Rao, supra, 233 Cal.App.3d at p. 1567.) 1. CCSA’sDiscussion Regarding Classrooms Occupied By Charter Schools At Comparison GroupSchools Is Not Contradictory Contrary to LAUSD’sclaims, CCSA’s proposal for addressing those unique situations where a charter school might occupy space at a comparison group schoolis not “contradictory.” First, there is only a limited potential for this situation to arise because most LAUSD campuses do not have both a charter school anda traditional LAUSD-run school. LAUSDhasover 500,000 K-12 students enrolled in close to 1,000 traditional LAUSD-run schools, but just about 16,000 charter school students attend school at an LAUSD-controlled campus. (AB, p. 12; 4 AA 939, 1074; 9 AA 2540; 10 AA 2701.) Given LAUSD’s abysmal 29 compliance record, in those rare instances where a charter school applies for and accepts space at an LAUSD campusthatis then included as a comparison group school, CCSA offered the following options for calculating classroom space occupied by a charter school: (1) LAUSDcould exclude classroomsallocated exclusively to a charter school when determining the classroom-to ADAratio at the comparison group school, and also exclude the charter school’s ADA whencalculating that comparison group school’s classroom-to-ADAratio; or (2) LAUSD could countall classroomsat the comparison group school campus, and include the co-locating charter school’s ADA as part of the comparison group school’s ADA whencalculating the comparison group school’s classroom-to-ADAratio. Nothing about these options is inconsistent with CCSA’s legal arguments, or with the regulations governing how schooldistricts should use the inventory. CCSAis not proposingthatthe facilities inventory regulation be read differently than it is written, as LAUSD mistakenly claims. (AB, pp. 23-24.) CCSAis only proposing workable solutions to the extent an impracticalsituation arises after the Implementing Regulations have been faithfully construed. These solutions are only relevantin the limited instances where one of the few comparison group 30 schools might be accommodating charter school students in the upcoming school year. 2. CCSA’s Interpretation Regarding Counting Unbuilt ClassroomsAlso Is Not Contradictory LAUSDclaims that CCSA’s treatment of an unbuilt classroom ata comparison group schoolis also contradictory. LAUSD misreads CCSA’s point. CCSA’spoint about unbuilt classroomsthat will not be finished by the next schoolyearis straight-forward and based on the regulatory language. Because the classroom-to-ADAratio at a comparison group school must be calculated using the projected numberofclassroomsat that school for the upcoming school year, an unbuilt classroom that will not be completed by that school year need not be counted. Unbuilt classrooms do notyet exist, so they are not “projected” to exist for the upcoming year. This commonsensetruth fits perfectly well within the regulation and does not contradict CCSA’s primary argument that LAUSD must follow the regulatory mandate to makefacilities offers based on an inventory of classroomsthatactually exist. 3. Section 1859.32 Of The Greene Act Regulations Removes Certain Preschool And Adult Education Classrooms From Section 1859.31’s Inventory LAUSDclaims that CCSA’s interpretation of the regulation would require LAUSDto count classroomsas part of the comparison group 31 classroom-to-ADAratio that are being used for purposes other than traditional K-12 education, such as preschools and pre-kindergarten centers, adult education centers, and parent centers. (AB, pp. 26-27.) LAUSD has | not presented any evidence to support its claim that counting those classroomsin the ratio would actually cause negative impacts to students attending LAUSD-run schools. However, even if LAUSD could and did present evidence in support ofits claim,principles of statutory and regulatory interpretation dictate that this cannot justify entirely disregarding the facilities inventory and instead using the fundamentally different methodology of normingratios. (See Doe v. City ofLos Angeles (2007) 42 Cal.4th 531, 545.) In addition, a key canon of construction is that regulations relating to the same subject matter should be construed together. (Hoitt v. Dept. ofRehabilitation (2012) 207 Cal.App.4th 513, 523-524 (Hoitt).) Section 1859.31—the “Gross Classroom Inventory” regulation— cannot beread in isolation. The section that followsit, section 1859.32,is titled “Adjustments to the Gross Classroom Inventory,” and states that “Talfter the gross classroom inventory has been prepared pursuant to section 1859.31, it will be reduced by the following.” (Cal. Code Regs., tit. 2, § 1859.32, emphasis added.) Section 1859.32 then lists classrooms to be excluded from the inventory. (/d.) 32 With respect to any classroom used exclusively for preschool, child care, and/or adult education programs, Section 1859.32 says that as long as that classroom “wasbuilt or acquired with funds specifically availablefor those purposes”it can be eliminated from the inventory. (/d., § 1859.32, subd. (f), emphasis added.) So, although section 1859.31 requires classroomsused for preschool programsto be counted in the inventory, (Ud., § 1859.31, subd. (f)), to the extent those classrooms were built or acquired with funds madeavailable for preschool purposes, section 11969.3, subdivision (b)(1), ensures that those classroomsare not counted when LAUSDdetermines the classroom-to-ADAratio at the comparison group schools. The same applies to adult education centers. (/d., § 1859.32, subd. (f).) Asfaras classroomsused for non-traditional or non-teaching purposes, such as parent centers or administrative space, although classrooms“converted to any non-classroom purpose”are to be included in the inventory (id., § 1859.31, subd., (g)), as CCSA discussed in its Opening Brief, this provision must be read together with Implementing Regulations section 11969.3, subdivision (b)(3), which governsthe allocation and/or access to “non-teaching station space”to charter schools under Prop. 39. (OB,pp. 47-48.) To the extent that there is a conflict between the two provisions, the specific provision (Cal. Code Regs., tit. 5, § 11969.3, subd. (b)(3)) takes precedence over the general provision (Cal. Code Regs., tit. 2, 33 § 1859.31, subd. (g).) (Hoitt, supra, 207 Cal.App.4th at p. 524.) When the provisions are so harmonized, classrooms converted to non-teaching station space—including parent centers—need not be counted when LAUSD calculates the classrooms-to-ADAratio required by Implementing Regulations section 11969.3, subdivision (b)(1), as those will be shared with charter schools pursuant to section 1 1969.3, subdivision (b)(3). F. Bullis Supports The Position That LAUSD Must Count All Available Classrooms At Comparison Group Schools LAUSDclaims that Bullis Charter School v. Los Altos School District (2011) 200 Cal.App.4th 1022 (Bullis) supportsits position. To the contrary, the Budlis court was clear: a schooldistrict satisfies its Prop. 39 obligations “only if it considers the entire nonclassroom spacein the facilities offer.” (Bullis, supra, 200 Cal.App.4th at p. 1047.) LAUSD cannotuse its own decisions about howto use classroomsto limit how manyclassroomsit offers to charter schools. In Bullis, the court did not distinguish between “space available to the students at the comparison group schools” and space otherwise in existence on their campuses, as LAUSDattempts to do. (AB,p. 46, emphasisin original; Budlis, supra, 200 Cal.App.4th at p. 1047.) Rather, the Bullis court found that the schooldistrict violated Prop. 39 precisely becauseits self-serving methodology failed to account for “ail of the facilities of the comparison group schools,” regardless of how that space 34 was being used. (Bullis, supra, 200 Cal.App.4th at p. 1030, emphasis in original.) Bullis directly supports CCSA’sinterpretation. G. LAUSD’s Reliance On Hartzell And Ripon Is Misplaced This Court’s decision in Hartzell is clear that when quasi-legislative Board regulations address a specific program,activity or matter, school districts have no discretion to deviate from the express requirementsofthat regulation. (Hartzell, supra, 35 Cal.3d at p. 916.) Nothing in Prop. 39, the Implementing Regulations, or their regulatory history allows a school | district to skip the calculations required by section 11969.3, subdivision (b)(1), and use district-wide normingratios to allocate classroom space to charter schools. Accordingly, LAUSD’s actions contradict Education Code section 35160 and Hartzell. LAUSDis wrong whenit states that its use of normingratios is sanctioned by Education Code section 35160 and case law interpreting that section, including Hartzell. (AB, pp. 47-48.) LAUSDalso incorrectly relies on Governing Board ofRipon Unified School District v. Commission on Professional Conduct (2009) 177 Cal.App.4th 1379 (Ripon). In Ripon, the Education Code sections requiring public school teachers to be certified to teach English learner students were directly related to the school district’s rule that all teachers becomesocertified, and the plaintiff failed to demonstrate that the district’s rule was preempted by any conflicting state statute. (Ripon, supra, 177 Cal.App.4th at p. 1383, 1387-1390.) 35 Here, section 11969.3, subdivision (b)(1), imposesa specific methodology school districts must follow when determining how many classrooms must be offered to charter schools. Unlike Ripon, there is no direct correlation between normingratios and the calculations mandated by the regulation, Further, the broad grant of power LAUSDclaimspursuant to Education Code section 35160 and Ripon is limited where a more specific law applies. (California Teachers Assn. v. Governing Bd. OfRialto Unified School Dist. (1997) 14 Cal.4th 627, 649; cf. United Teachers ofLos Angeles v. Los Angeles Unified School Dist. (2012) 54 Cal.4th 504, 526.) The Implementing Regulations are specific lawsgoverning howschool districts must allocate space to charter schools, and LAUSD’s actions directly “conflict with” those laws. Section 11969.3, subdivision (b)(1), therefore limits LAUSD’spurported authority under Education Code section 35160 to use normingratios in making offers to charter schools. IH. CONCLUSION LAUSD?’s interpretation of the Implementing Regulations does not faithfully read and assign meaning toall of the carefully chosen language that delineates the specific method a school district must employ to offer classroomsto charter schools under Prop. 39. LAUSD’s normingratios have no place in Prop. 39 law, and must not be used to avoid the calculations required by section 11969.3, subdivision (b)(1). 36 CCSArespectfully requests that this Court reverse the Court of ‘Appeal’s decision, restoring thetrial court’s order. Respectfully submitted, DATED:October 10, 2013 LATHAM & WATKINS LLP James L. Arnone Winston P. Stromberg Vanessa C. Wu Michele L. Leonelli By: (LpocraeAkfox James L. Arnoné Attorneysfor Plaintiffand Respondent California Charter Schools Association 37 CERTIFICATION OF WORD COUNT Pursuant to Rule 8.520(c) of the California Rules of Court, I certify that the word countfor the brief above, excluding the caption andtables of contents and authorities is 8,140 words. I relied upon the word count feature provided by Microsoft Word. DATED: October 10, 2013 LATHAM & WATKINS LLP James L. Arnone Winston P. Stromberg Vanessa C. Wu Michele L. Leonelli By: EBivcesweLEZ Vanessa C. Wu Attorneysfor Plaintiffand Respondent California Charter Schools Association LA\3293214.11 38 PROOF OF SERVICE I am employedin the County of San Francisco, State of California. I am over the age of 18 years and nota party to this action. My business address is Latham & Watkins LLP, 505 Montgomery Street, Suite 2000, San Francisco, CA 94111-6538. I served the following document describedas: REPLY BRIEF ON THE MERITS by serving a true copy of the above-described documentin the following manner: BY ELECTRONIC MAIL The above-described document wastransmitted via electronic mail to the following party(ies) on October 10, 2013: David M.Huff, Esq. (dhuff{@ohslegal.com) ORBACH, HUFF & SUAREZ LLP 1901 Avenue of the Stars, Suite 575 Los Angeles, CA 90067 BY U.S. MAIL I am familiar with the office practice of Latham & Watkins LLP for collecting and processing documentsfor mailing with the United States Postal Service. Under that practice, documents are deposited with the Latham & Watkins LLP personnel responsible for depositing documents with the United States Postal Service; such documentsare delivered to the United States Postal Service on that sameday in the ordinary course of business, with postage thereon fully prepaid. I deposited in Latham & Watkins LLP’s interoffice mail a sealed envelope or package containing the above-described document and addressed as set forth below in accordance with the office practice of Latham & Watkins LLP for collecting and processing documents for mailing with the United States Postal Service on October 10, 2013: David M.Huff, Esq. David R. Holmquist, Esq. Steven Graff Levine, Esq. Mark Fall, Esq. Marley S. Fox, Esq. Nathan A.Reierson, Esq. Joanna Braynin, Esq. Office of General Counsel ORBACH, HUFF & SUAREZ LLP LOS ANGELES UNIFIED SCHOOL DISTRICT 1901 Avenueofthe Stars, Suite 575 333 South Beaudry Avenue, 23rd Floor Los Angeles, CA 90067 Los Angeles, CA 90017 Attorneys for Appellants Attorneys for Appellants Clerk/Executive Officer of the Court Clerk of the Court Court of Appeal of the State of California Honorable Terry A. Green - Department 14 Second Appellate District, Division Five Superior Court of the State of California 300 South Spring Street, 2°’ Floor County of Los Angeles Los Angeles, CA 90013 111 North Hill Street Los Angeles, CA 90012 J declare that | am employedin the office of a memberof the Bar of, or permitted to practice before, this Court at whose direction the service was made and declare under penalty of perjury underthe laws of the State of California that the foregoingis true and correct. Executed on October 10, 2013, at San Francisco, California. ate Mare Elizabeth Alvarez)
