This case was last updated from Los Angeles County Superior Courts on 05/26/2019 at 00:34:28 (UTC).

UNITED TEACHERS LOS ANGELES ET AL VS LOS ANGELES UNIFIED

Case Summary

On 05/12/2017 UNITED TEACHERS LOS ANGELES filed an Other - Other Judicial Review lawsuit against LOS ANGELES UNIFIED. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is JAMES C. CHALFANT. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9634

  • Filing Date:

    05/12/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Other - Other Judicial Review

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

JAMES C. CHALFANT

 

Party Details

Plaintiffs and Petitioners

PRATT MARK

GARSKE KATHLEEN

VELASQUEZ CONCEPCION

UNITED TEACHERS LOS ANGELES

KITCHING ELIZABETH

OCHOA MATTHEW

Defendants and Respondents

DOES 1 TO 5

LOS ANGELES UNIFIED SCHOOL DISTRICT

Attorney/Law Firm Details

Plaintiff and Petitioner Attorneys

QUINONEZ JESUS E. ESQ.

ADAMS JOSHUA B

Defendant Attorney

HERNANDEZ MARCOS FREDRICK

Respondent Attorney

HERNANDEZ MARCOS F. ASST. GEN. COUNSEL

 

Court Documents

Minute Order

1/25/2018: Minute Order

NOTICE OF OSC RE FAILURE TO APPEAR; ETC.

1/25/2018: NOTICE OF OSC RE FAILURE TO APPEAR; ETC.

RESPONDENT/DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT'S ANSWER TO PETITIONERS/PLAINTIFFS' FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

11/15/2017: RESPONDENT/DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT'S ANSWER TO PETITIONERS/PLAINTIFFS' FIRST AMENDED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

PETITIONERS/PLAINTIFFS' OPPOSITION TO DEFENDANTS/RESPONDENTS DEMURRER TO FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

10/13/2017: PETITIONERS/PLAINTIFFS' OPPOSITION TO DEFENDANTS/RESPONDENTS DEMURRER TO FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

RESPONDENT/DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PETITIONERS/PLAINTIFFS FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDA

10/19/2017: RESPONDENT/DEFENDANT LOS ANGELES UNIFIED SCHOOL DISTRICT'S REPLY MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEMURRER TO PETITIONERS/PLAINTIFFS FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDA

DECISION ON DEMURRER: OVERRULED

10/26/2017: DECISION ON DEMURRER: OVERRULED

Minute Order

10/26/2017: Minute Order

VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

5/12/2017: VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

SUMMONS

5/12/2017: SUMMONS

NOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREON

5/17/2017: NOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREON

AMENDED PROOF OF SERVICE RE VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

5/17/2017: AMENDED PROOF OF SERVICE RE VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

JOINT STIPULATION RE: EXTENSION OF TIME TO FILE RESPONSIVE PLEADING OR DEMURRER

7/18/2017: JOINT STIPULATION RE: EXTENSION OF TIME TO FILE RESPONSIVE PLEADING OR DEMURRER

JOINT STIPULATION RE: EXTENSION OF TIME TO FILE RESPONSIVE PLEADING OR DEMURRER

7/27/2017: JOINT STIPULATION RE: EXTENSION OF TIME TO FILE RESPONSIVE PLEADING OR DEMURRER

FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

8/2/2017: FIRST AMENDED VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

RESPONDENTS/DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT'S NOTICE OF DEMURRER AND ETC

8/10/2017: RESPONDENTS/DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT'S NOTICE OF DEMURRER AND ETC

RESPONDENTS/DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOTICE OF DEMURRER, DEMURRER AND ETC

8/10/2017: RESPONDENTS/DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT'S REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF NOTICE OF DEMURRER, DEMURRER AND ETC

RESPONDENTS/DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NOTICE OF DEMURRER AND ETC

8/10/2017: RESPONDENTS/DEFENDANTS LOS ANGELES UNIFIED SCHOOL DISTRICT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF NOTICE OF DEMURRER AND ETC

Minute Order

8/22/2017: Minute Order

9 More Documents Available

 

Docket Entries

  • 03/29/2019
  • Notice ( RE CONTINUANCE OF TRIAL SETTING CONFERENCE); Filed by United Teachers Los Angeles (Plaintiff); Elizabeth Kitching (Plaintiff); Mark Pratt (Plaintiff) et al.

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  • 03/26/2019
  • at 1:30 PM in Department 85, James C. Chalfant, Presiding; Trial Setting Conference - Not Held - Continued - Stipulation

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  • 03/25/2019
  • at 1:30 PM in Department 85, James C. Chalfant, Presiding; Court Order

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  • 03/25/2019
  • Stipulation and Order (JOINT STIPULATION TO CONTINUE TRIAL SETTING CONFERENCE OF MARCH 26, 2019 FOR 90 DAYS TO PERMIT PARTIES TO COMPLETE DISCOVERY); Filed by United Teachers Los Angeles (Plaintiff); Elizabeth Kitching (Plaintiff); Mark Pratt (Plaintiff) et al.

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  • 03/25/2019
  • Minute Order ( (Court Order)); Filed by Clerk

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  • 11/30/2018
  • Notice (re continuance of TSC); Filed by United Teachers Los Angeles (Plaintiff); Elizabeth Kitching (Plaintiff); Mark Pratt (Plaintiff) et al.

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  • 11/27/2018
  • at 1:30 PM in Department 85, James C. Chalfant, Presiding; Trial Setting Conference - Held - Continued

    Read MoreRead Less
  • 11/27/2018
  • Minute Order ((Trial Setting Conference)); Filed by Clerk

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  • 11/15/2018
  • Notice (of unavailability 12/14/18 thru 01/03/19)

    Read MoreRead Less
  • 10/31/2018
  • Answer; Filed by Los Angeles Unified School District (Defendant)

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60 More Docket Entries
  • 07/18/2017
  • Stipulation; Filed by Petitioner

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  • 06/14/2017
  • Declaration; Filed by Respondent

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  • 06/14/2017
  • DECLARATION OF MARCOS F. HERNANDEZ IN SUPPORT OF THIRTY DAY EXTENSION TO MEET AND CONFER (CAL. CODE CIV. PROC. 430.41(A)(2)

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  • 05/17/2017
  • AMENDED PROOF OF SERVICE RE VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

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  • 05/17/2017
  • Amended Proof of Service; Filed by United Teachers Los Angeles (Plaintiff)

    Read MoreRead Less
  • 05/17/2017
  • Notice of Trial Setting Conference and Attached Orders Thereon; Filed by Clerk

    Read MoreRead Less
  • 05/17/2017
  • NOTICE OF TRIAL SELLING CONFERENCE & ATTACHED ORDERS THEREON

    Read MoreRead Less
  • 05/12/2017
  • Complaint; Filed by United Teachers Los Angeles (Plaintiff); Elizabeth Kitching (Plaintiff); Mark Pratt (Plaintiff) et al.

    Read MoreRead Less
  • 05/12/2017
  • VERIFIED PETITION FOR WRIT OF MANDATE AND COMPLAINT FOR DECLARATORY RELIEF

    Read MoreRead Less
  • 05/12/2017
  • SUMMONS

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Tentative Rulings

Case Number: BS169634    Hearing Date: July 07, 2020    Dept: 85

United Teachers Los Angeles, et al. v. Los Angeles Unified School District, et al., BS169634

Tentative decision on petition for writ of mandate: denied

Petitioners United Teachers Los Angeles (“UTLA”), Elizabeth Kitching (“Kitching”), Mark Pratt (“Pratt”), Kathleen Garske (“Garske”) Matthew Ochoa (“Ochoa”) and Concepcion Velasquez (“Velasquez”) petition for a writ of mandate directing Los Angeles Unified School District ( “District” or “LAUSD”) to reclassify them as permanent or probationary employees.

The court has read and considered the moving papers, opposition, and reply, and renders the following tentative decision.

A. Statement of the Case

1. Petition

Petitioners commenced this proceeding on May 12, 2017. The operative pleading is the Third Amended Petition (“TAP”), filed on October 31, 2019. The TAP alleges in pertinent part as follows.

The process by which certificated teachers employed in LAUSD’s Division of Adult and Career Education (“DACE”) acquire permanent status is similar to that for teachers working in elementary and secondary schools. Teachers employed in DACE (“Adult Educators”) generally spend two years as probationary employees and acquire permanent status if reelected for a third school year. To receive credit for a year of probationary service, an Adult Educator must work over 60% of a full-time assignment for permanent employees, or 18 hours per week. Time spent in “temporary” status does not count towards tenure. However, if an Adult Educator spends an entire year in temporary service, and performs more than 18 hours of work per week, the year of temporary service must be retroactively deemed probationary service.

Since the passage of Assembly Bill (“AB”) 105 in 2015, through what presently is the California Adult Education Program (“CAEP”), and formerly known as the Adult Education Block Grant, state funding for adult education is distributed to local education agencies through regional adult education “consortia.” LAUSD is a member of the Los Angeles Regional Adult Education Consortium, through which it receives CAEP funds.

Notwithstanding the fact that LAUSD receives the majority of its funding for teacher salaries in DACE from CAEP, District has misclassified and continues to misclassify teachers as temporary who have class assignments supported by CAEP funds, by improperly designating such funds as “categorically funded projects which are not required by federal or state statutes” under Education Code section 44909. Since approximately 2015, District has refused to grant probationary or permanent status to any non-tenured teacher whose salary is paid with CAEP funds, irrespective of whether the teacher works over 18 hours per week.

Individual Petitioners are employees of District who meet the requirements for classification as permanent employees under the Education Code. Despite this fact, District misclassified Individual Petitioners as “Limited” under the UTLA-District collective bargaining agreement ( “CBA”) and as “temporary” under the Education Code.

The TAP’s first and second causes of action are for a writ of mandate under CCP section 1085. Petitioners allege that LAUSD has a ministerial duty to classify certified teachers in accordance with the Education Code. By classifying CAEP funds as exempt from its obligations to classify employees as probationary or permanent except in the narrow circumstances described under Education Code section 44909, District unlawfully violated the right of Individual Petitioners to be properly classified as a probationary or permanent certificated employee.

Petitioners’ third cause of action is for declaratory relief. Petitioners seek a declaration that District may not deny probationary or permanent status to any certificated employee based on the use of non-federal funding from CAEP. By failing to characterize CAEP funds correctly or to classify Adult Educators correctly as probationary or permanent, District has violated the Education Code. An actual and present controversy exists whether District's designation of certain employment contracts and DACE teachers’ salaries funded by CAEP are exempt from the provisions of the Education Code regarding probationary and permanent status, unlawfully preventing Adult Educators from attaining tenure.

2. Course of Proceedings

On October 26, 2017, the court overruled LAUSD’s demurrer to the First Amended Petition.

B. Standard of Review

A party may seek to set aside an agency decision by petitioning for either a writ of administrative mandamus (CCP §1094.5) or of traditional mandamus. CCP §1085.

A petition for traditional mandamus is appropriate in all actions “to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station....” CCP §1085. “A writ of mandate may be issued by any court to any inferior tribunal, corporation, 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, or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled, and from which the party is unlawfully precluded by such inferior tribunal, corporation, board, or person.” CCP §1085(a).

A traditional writ of mandate under CCP section 1085 is the method of compelling the performance of a legal, ministerial duty. Pomona Police Officers’ Assn. v. City of Pomona, (1997) 58 Cal.App.4th 578, 583-84. Generally, mandamus will lie when (1) there is no plain, speedy, and adequate alternative remedy, (2) the respondent has a duty to perform, and (3) the petitioner has a clear and beneficial right to performance. Id. at 584 (internal citations omitted). Whether a statute imposes a ministerial duty for which mandamus is available, or a mere obligation to perform a discretionary function, is a question of statutory interpretation. AIDS Healthcare Foundation v. Los Angeles County Dept. of Public Health, (2011) 197 Cal.App.4th 693, 701.

A ministerial act is one that is performed by a public officer “without regard to his or her own judgment or opinion concerning the propriety of such act.” Ellena v. Department of Insurance, (2014) 230 Cal.App.4th 198, 205. It is “essentially automatic based on whether certain fixed standards and objective measures have been met.” Sustainability of Parks, Recycling & Wildlife Legal Defense Fund v. County of Solano Dept. of Resource Mgmt., (2008) 167 Cal.App.4th 1350, 1359. By contrast, a discretionary act involves the exercise of judgment by a public officer. County of Los Angeles v. City of Los Angeles, (2013) 214 Cal.App.4th 643, 653-54.

No administrative record is required for traditional mandamus to compel performance of a ministerial duty.

C. Governing Law

1. CAEP Funding

The primary source of funding for adult education in the state and LAUSD is now administered through CAEP. See Ed. Code[1] art. 9, §§ 84900 et seq. CAEP divides the state into geographical “adult education regions” (§84903(a)), with “one adult education consortium in each adult education region.” §84904(a). Any school district within the boundaries of the consortium is permitted to join as a member. §84905(a). The purpose of a consortium is to gather the various public agencies that provide adult education “within the boundaries of the adult education region,” including “[a]ny community college district, school district, or county office of education, or any joint powers authority consisting of [any of these or a combination of them].” §84904(a).

Preliminary schedules of CAEP fund allocations by the state are announced annually, “no later than February 28 of the prior fiscal year” (§84909(b), and final funding is approved “within 15 days of enactment of the annual Budget Act.” §84909(c). The CAEP statute expressly restricts funding usage to “adult education purposes” in seven program areas, including “Programs for immigrants eligible for educational services in citizenship, ESL, and workforce preparation.” §§ 84913(a)(1)-(7), 84914.1.

LAUSD is a member of the Los Angeles Regional Adult Education Consortium (the “Consortium”). LAUSD has participated in the development of Consortium Annual Plans for each school year. See, e.g., APPX[2] 262-78 (2016-17 school year); APPX 280-86 (2017-18 school year); APPX 288-94 (2018-19 school year); APPX 254-60 (2019-20 school year). CAEP funds are distributed to Consortium members, including LAUSD, based on three-year funding schedule, after each member submits an education plan to the Consortium. §84906(a)(1).

2. Employee Classification and Tenure

The Education Code specifies four employment classifications for certificated employees of public schools: permanent, probationary, substitute and temporary. Kavanaugh v. West Sonoma Union High School District, (“Kavanaugh”) (2003) 29 Cal.4th 911, 916.

“[A certificated employee’s job classification] governs the level of statutory job protection the teacher enjoys and controls if he or she is not reelected. In general, permanent employees may not be dismissed unless one or more statutorily enumerated grounds are shown. (§44932.) Probationary employees may not be dismissed during the school year except for cause or unsatisfactory performance (§44948.3), but, on timely notice, “may be nonreelected without any showing of cause, without any statement of reasons, and without any right of appeal or administrative redress. [citations] “Substitute and temporary employees, on the other hand, fil the short range needs of a school district and generally may be summarily released.” Id. at 917.

Because substitute and temporary employees do not have procedural due process rights, these employment classifications are “narrowly defined by the Legislature” and “strictly interpreted.” Bakersfield Elementary Teachers Assn. v. Bakersfield City School District, (“Bakersfield”) (2006) 145 Cal.App.4th 1260, 1281; Zalac v. Governing Bd. of Ferndale Unified School Dist., (“Zalac”) (2002) 98 Cal.App.4th 838, 843. “A temporary classification is strictly construed, and a school district may not circumvent the law through practices designed to frustrate the valid expectations of reemployment established by the tenure statutes.” Stockton Teachers Assn. CTA/NEA, (“Stockton”) (2012) 204 Cal. App. 4th 446. 457 (internal citation and quotation omitted).

The “default” employment classification under the Education Code is probationary. §44915. This means that a certificated employee must be classified as probationary unless a statute requires or authorizes the school district to classify the teacher as permanent, temporary or substitute. Bakersfield, supra, 145 Cal.App.4th at 1280; California Teachers Association v. Vallejo City Unified School District, (“Vallejo”) (2007) 149 Cal.App.4th 135, 146. “School districts have no discretion to deviate from the Code’s classification scheme.” Vallejo, supra, 149 Cal. App. 4th at 150 (emphasis in original).

As a general rule, a probationary teacher attains permanent status if, after completing two years of probationary service, the school district reelects the teacher for a third year of service. §44929.21(b). A probationary employee who, in any one school year, has served at least 75% of the regular number of school days of the district in which he is employed shall be deemed to have served a complete school year. §44908.

In adult education, these tenure rules are supplemented by section 44929.25, which provides that (1) no person who is assigned ten hours or less a week in adult classes in the district shall be eligible for election to permanent classification and (2) if an adult education teacher is working 60% or less of a “full-time assignment for permanent employees,” that teacher “shall be classified as a temporary employee and shall not become a probationary employee.”

Several sections of the Education Code preclude teachers from earning credit toward tenure under specified circumstances. The Code also limits the rights of interns and some categorically-funded employees to advance toward tenure. §§ 44466, 44830.3, 44909.

One tenure-limiting statute is section 44909, which provides in relevant part:

“The governing board of any school district may employ persons possessing an appropriate credential as certificated employees in programs and projects to perform services conducted under contract with public or private agencies, or categorically funded projects which are not required by federal or state statutes. The terms and conditions under which such persons are employed shall be mutually agreed upon by the employee and the governing board and such agreement shall be reduced to writing. Service pursuant to this section shall not be included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as a permanent employee unless (1) such person has served pursuant to this section for at least 75 percent of the number of days the regular schools of the district by which he is employed are maintained and (2) such person is subsequently employed as a probationary employee in a position requiring certification qualifications.” (Emphasis added.)

The Education Code does not formally define a “categorically funded project.” Zalac, supra, 98 Cal.App.4th at 845. However, “categorical educational programs are programs funded to address specified needs. Id. at 846-47. “A categorically funded project need not involve the creation of special classes divorced from the normal curriculum, but may augment the curriculum in whatever manner is specified in the particular program. The defining characteristics are that the program be financed outside the base revenue limit with funds designated for a use specified by the particular program.” Id. at 848 (internal citations omitted).

The tenure limitations of section 44909 are contingent upon a written agreement between the teacher and the school district. Sullivan v. Calistoga Joint Union School District, (“Sullivan”) (1991) 228 Cal.App.3d 1313, 1318-19. For section 44909 to apply, “the program from which the employee is hired must satisfy the requirements of the statute and the district must enter into a written agreement of employment with the person hired.” Stockton, supra, 204 Cal.App.4th at 461-62.

Employees hired under section 44909 occupy a hybrid status between probationary and temporary:

“Employees hired pursuant to the section are treated like temporary employees in that they earn no credit toward tenure, and are entitled to the notice and re-hire rights of a temporary employee if terminated at the expiration of the categorically funded project. However, by specifically qualifying the circumstances under which a section 44909 employee may be terminated without the notice usually accorded to a probationary employee, the section implies that such employees are entitled to be treated as probationary employees when such circumstances are not present.” Stockton, supra, 204 Cal.App.4th at 454.

Service pursuant to section 44909 shall not be included in computing the service required as a prerequisite to attainment of, or eligibility to, classification as a permanent employee unless: (1) such person has served for at least 75% of the number of days the regular schools of the district by which he is employed are maintained and (2) such person is subsequently employed as a probationary employee in a position requiring certification qualifications. §44909. Employees hired pursuant to section 44909 are treated like temporary employees in that they earn no credit toward tenure. Stockton, supra, 204 Cal.App.4th at 454.

Section 44916 requires a school district to provide each new employee “a written statement indicating his employment status” before the employee begins working. Kavanaugh, supra, 29 Cal.4th at 921. Section 44916 further provides that “[i]f a school district hires a certificated person as a temporary employee, the written statement shall clearly indicate the temporary nature of the employment and the length of time for which the person is being employed.” If the school district fails to notify an employee of temporary status, “the certificated employee shall be deemed to be a probationary employee of the school district, unless employed with permanent status.” Id.

In the past, school districts routinely classified teachers who were ineligible to advance toward tenure as temporary employees. E.g., Sullivan, supra, 228 Cal.App.3d at 1315. Over the past 15 years, courts have concluded that these teachers must be provided most rights granted to probationary employees, except for the right to advance toward tenure. Vallejo, supra, 149 Cal.App.4th at 149-50 (“A provisionally credentialed teacher may possess some of the rights of probationary employees, such as protections against midyear dismissals and layoffs, although she does not possess others, such as progress toward tenure”); Bakersfield, supra, 145 Cal.App.4th at 1299-1300, 1301 (teachers with provisional credentials, while not entitled to advance toward tenure, enjoy statutory protection against midyear dismissals and layoffs, and may accrue seniority); Calif. Teachers Assn. v. Governing Board of Golden Valley Unified Sch. Dist., (2002) 98 Cal.App.4th 369, 383-84. Because such employees may not advance toward tenure, they remain subject to non-reelection at the end of any school year, no matter how long they have been employed by the school district. Motevalli v. Los Angeles Unified School Dist., (2004) 122 Cal.App.4th 97, 110-11.

School districts, certificated employees, and their advocates refer to this status as “probationary zero” — meaning the employee is treated as probationary for most purposes but cannot advance toward tenure. By contrast, the terms “probationary one” and “probationary two” are used to describe tenure-track teachers serving in their first and second years of probationary status, respectively, under section 44929.21(b).

D. Statement of Facts

1. Background

Prior to 2008-09, the state provided founding for adult schools through a categorical program that required school districts to use the monies for adult education. APPX 448.

The State Legislative Analyst’s Office (“LAO”) has explained to the Legislature how adult education historically had been funded:

“Historically, funding for adult schools was based on [students’ Average Daily Attendance (“ADA”)], with school districts receiving $2,645 in state funding per ADA in 2007-08. School district adult education programs had funding caps on the number of ADA they were paid for each year . . . If a school district failed to reach its cap for two consecutive years, the amount of enrollment monies that went unused would be redirected to other districts serving students in excess of their funding caps.” APPX 452.

Beginning in 2008-09, the state reduced funding for school districts due to declining revenues. APPX 452. It also permitted school districts to use their adult education funding for any educational purpose. APPX 452. In 2009, the state recorded declines of 40 to 50% in school district use of adult education funds for adult education services. APPX 452.

During a February 2009 special session, the Legislature removed the categorical program requirements and allowed school districts to use adult education funding (along with funding associated with a number of other categorical programs) for any educational purpose.” APPX 448. When the Legislature made these changes, the flexibility was only authorized through 2014-15. APPX 448.

By 2012, State Legislative Analyst’s Office (“LAO”) felt that community colleges and school districts had cut adult education funding such that there likely was a significant amount of unmet demand. APPX 460. LAO argued that adult education needed comprehensive restructuring and recommended that the reorganization focus on the “Core Mission” of adult education: “adult elementary and secondary education, ESL [ESL], citizenship and workforce preparation, and vocational education— including apprenticeship.” APPX 460-62, 472, 485-86. Specifically, LOA recommended that “the Legislature restore adult education as a stand-alone categorical program once flexibility sunsets at the end of 2014-15.” APPX 464 (emphasis added).

The State began to restructure the provision of adult education with the passage of AB 86 in 2013. In 2012, in advance of the passage of AB 86, the LAO described a key problem related to modern adult education services:

“While adult education falls under the purview of both community colleges and school districts, it is not the top statutory mission of either segment….[S]chool districts are responsible for adult education only ‘to the extent’ state support is provided.” APPX 448.

See also Orange Unified Sch. Dist. v. Rancho Santiago Cmty. Coll. Dist., (1997) 54 Cal. App. 4th 750, 762 (“the elementary and secondary schools must provide academic and vocational instruction through the 12th grade, as well as adult instruction of the same type to the extent of state support”) (emphasis added).

On July 1, 2013, the Legislature enacted AB 86, which required the Department of Education and the Community College Chancellor’s Office to jointly provide planning grants to regional consortia of community college and school districts to develop regional plans to improve adult education programs in areas of instruction including ESL, career technical education, education programs for adults with disabilities, and basic skills. APPX 440. LAO stated that AB 86 had, inter alia, the following purposes: (1) Focus on the six instructional programs most closely aligned with adult education’s core mission; and (2) Create a funding mechanism for adult education that promotes a coordinated system centered around student access and success. APPX 444.[3]

On June 24, 2015, the Legislature enacted AB 104. As stated in the Senate Amendments, AB 104’s primary purpose was to establish the “Adult Education Block Grant program to provide adult education services through regional consortia.” APPX 517. AB 104 provided $500 Million for an “Adult Education Block Grant” which was distributed to members of regional consortia to provide education services. APPX 534.

In 2018, the Adult Education Block Grant was renamed “CAEP” under AB 1809. APPX 555.

The Department of Education’s August 1, 2017 CAEP Guide states that CAEP is not a grant, but a state apportionment that is ongoing and can be used in future years to hire permanent staff, teachers and faculty. APPX 204. The CAEP Guide also states that “CAEP apportionment is a restricted funding source” that can be used for only seven areas of adult education. APPX 201.

The Department of Education’s September 23, 2019 CAEP Program Manual quotes the “Governor’s 17-18 budget” for the proposition that “the Budget includes $500 million ongoing Proposition 98 General Fund to support the Adult Education Block Grant Program”, noting that these funds are to be devoted to “high school diplomas or general education equivalent, ESL courses, and pathways courses that lead to additional career opportunities.” APPX 239-40.

2. Petitioners’ Evidence

a. District’s Stance on CAEP Funds

LAUSD’s position is that DACE only has categorically-funded programs, and there is no process for Adult Education teachers to acquire probationary status and tenure. APPX 311-13. The CAEP is a categorically-funded program. AR 91. There are tenured teachers in DACE, but their number has decreased as they retire or resign; there are no probationary teachers in DACE. AR 313. While District has stated it “continues to maintain full time equivalent positions to replace similar, full time tenured positions” with CAEP funds, District’s position is that “funding is not available to provide funding for tenured positions.” APPX 91.

According to District, CAEP funds are exempted from Education Code tenure requirements by operation of section 44909 because they constitute “categorical resources,” or “state restricted resources” that are exempt from tenure obligations. APPX 91. Categorical resources are restricted to specific purposes and the Adult Education Block Grant Data and Accountability Program are state-restricted resources. APPX 182.

A high percentage of funds used to support DACE teacher salaries and benefits comes from CAEP. APPX 183. In each of the 2015-16, 2016-17, 2017-18, and 2018-19 school years, at least 87% of DACE teacher salaries and benefits have been derived from CAEP. APPX 183; Pet. Op. Br. at 6 (table).

Since CAEP funds were first approved by the Legislature, the number of DACE employees categorized as probationary or permanent has decreased and the number of temporary teachers has increased. See APPX 103-66. From the 2015-16 school year to the 2017-18 school year, the number of permanent teachers in DACE decreased from 456 to 409, the number of probationary teachers decreased from 16 to 2, and the number of temporary teachers incrased from 378 to 447. APPX 103-66; Pet. Op. Br. at 6 (table).

b. Individual Petitioners

In LAUSD, 30 hours per week is considered a full-time assignment in DACE and to exceed the 60% threshold of section 44929.25 and acquire probationary or permanent status. APPX 72 (Kogan Decl. ¶4). For DACE (and all teachers), 60% of full-time equivalent would be 18 hours per week of classes. Id.; APPX 310.

(i) Kitching

Kitching is a certificated teacher and LAUSD employee in DACE. Kitching Decl. (APPX 1-3) ¶1. Kitching does not have tenure and is not a permanent employee. Kitching believes her classification is temporary under the Education Code because she can be fired by LAUSD when her contract of employment ends without the right to a layoff hearing. Kitching Decl. ¶2.

On May 20, 2016, Kitching signed a Contract of Employment with District for the period from August 15, 2016 through June 12, 2017. Kitching Decl. ¶3, Ex. A. This contract covers one the 2016-17 school year. The contract states that Kitching will be teaching courses in ESL to adult students. Kitching Decl. ¶3, Ex. A. The contract states that her classification is “non-tenure earning probationary status, as defined by the District pursuant to Education code Section 44909.” Kitching Decl. ¶3, Ex. A. The “Name of the Categorically Funded Program” funding the contract was “WIOA,” which is an acronym for federal funds under the Workforce Investment & Opportunity Act. Kitching Decl. ¶3.

During the 2016-17 school year, Kitching taught 20 hours of instruction per week in the subject matter of ESL to adult students in DACE. She provided instruction for over 75% of the school year. Kitching Decl. ¶4.

On July 12, 2017, Kitching signed a Contract of Employment with District for the period from August 14, 2017 through June 30, 2019. Kitching Decl. ¶5, Ex. B. This period covered two complete school years: the 2017-18 school year and the 2018-19 school year. The contract states that Kitching will be teaching courses in ESL to adult students. Kitching Decl. ¶5, Ex. B. The contract states that her classification is “non-tenure earning probationary status as defined by the District pursuant to Education Code Section 44909.” Kitching Decl. ¶5, Ex. B. The “Name of the Categorically Funded Program” funding the contract was “AEBG,” which is an acronym which means CAEP. Kitching Decl. ¶5.

During the 2017-18 school year, Kitching taught 20 hours of instruction per week in the subject matter of ESL to adult students in DACE. Kitching Decl. ¶6. In both 2017-18 and 2018-19, Kitching provided instruction for over 75% of the school year. Kitching Decl. ¶6.

On May 21, 2019, Kitching signed a Contract of Employment with District for the period from July 1, 2019 through June 30, 2021. Kitching Decl. ¶7, Ex. C. This period covers two complete school years: the 2019-20 school year and the 2020-21 school year. The contract states that Kitching will be teaching courses in ESL to adult students. Kitching Decl. ¶7, Ex. C. The contract states that Kitching’s classification is “non-tenure earning probationary status, as defined by the District pursuant to Education Code Section 44909.” Kitching Decl. ¶7, Ex. C. The “Name of the Categorically Funded Program” funding her contract is “CAEP.” Kitching Decl. ¶7, Ex. C.

During the 2019-20 school year to date, Kitching has taught 20 hours of instruction per week in the subject matter of ESL to adult students in DACE. Kitching Decl. ¶8.

(ii) Pratt

Pratt is a certificated teacher and LAUSD employee in DACE. Pratt Decl. (APPX 12-13) ¶1. Pratt does not have tenure and is not a permanent employee. Pratt believes his classification is temporary under the Education Code because he can be fired by LAUSD when his contract of employment ends without the right to a layoff hearing. Pratt Decl. ¶2.

On August 2, 2017, Pratt signed a Contract of Employment with District for the period from August 14, 2017 through June 30, 2019, which covered two complete school years in DACE: the 2017-18 school year and the 2018-19 school year. Pratt Decl. ¶3, Ex. A. The contract states that Pratt will be teaching courses in ESL to adult students. Pratt Decl. ¶3, Ex. A. The contract states that his classification is “non-tenure earning probationary status as defined by the District pursuant to Education Code Section 44909.” The “Name of the Categorically Funded Program” funding the contract was “AEBG,” which is an acronym that means CAEP.

During the 2017-18 school year, Pratt taught 30 hours of instruction per week in the subject matter of ESL to adult students in DACE (10 hours more than the contract). Pratt Decl. ¶4. During the 2018-19 school year, Pratt taught 30 hours of instruction per week in the subject matter of ESL to adult students in DACE (10 hours more than the contract). Pratt Decl. ¶4. In both 2017-18 and 2018-19, Pratt provided instruction for over 75% of the school year. Pratt Decl. ¶4.

On May 2, 2019, Pratt signed a Contract of Employment with District for the period from July 1, 2019 through June 30, 2021, which covers two complete school years: the 2019-20 school year and the 2020-21 school year. Pratt Decl. ¶5, Ex. B. The Contract states that Pratt will be teaching courses in ESL to adult students. Pratt Decl. ¶5, Ex. B. The contract states that his classification is “non-tenure earning probationary status, as defined by the District pursuant to Education Code Section 44909.” The “Name of the Categorically Funded Program" funding his contract is the "CAEP.” Pratt Decl. ¶5, Ex. B.

During the 2019-20 school year to date, Pratt has taught 35 hours of instruction per week to adult students in DACE in the subject matter of ESL (15 greater than the contract). Pratt Decl. ¶6.

(iii) Garske

Garske is a certificated teacher and employee of LAUSD in DACE. Garske Decl. (APPX 19-21) ¶1. Garske does not have tenure and is not a permanent employee. Garske believes her classification is temporary under the Education Code because she can be fired by LAUSD when her contract of employment ends without the right to a layoff hearing. Garske Decl. ¶2.

On July 25, 2016, Garske signed a Contract of Employment with District for the period from August 15, 2016 through June 12, 2017. Garske Decl. ¶3, Ex. A. This period covers the 2016-17 school year. The contract states that Garske will be teaching courses in ESL to adult students. Garske Decl. ¶3, Ex. A. The contract states that her classification is “non-tenure earning probationary status, as defined by the District pursuant to Education code Section 44909.” Garske Decl. ¶3, Ex. A. The “Name of the Categorically Funded Program” funding the contract was “WIA”, an acronym which means federal funds under the Workforce Investment & Opportunity Act. Garske Decl. ¶3.

During the 2016-17 school year, Garske taught 30 hours of instruction per week in the subject matter of ESL to adult students in DACE. She provided instruction for over 75% of the school year. Garske Decl. ¶4.

On September 27, 2017, Garske signed a Contract of Employment with District for the period from October 2, 2017 through June 30, 2019. Garske Decl. ¶5, Ex. B. This period covered two complete school years: the 2017-18 school year and the 2018-19 school year. The contract states that Garske will be teaching courses in ESL to adult students. Garske Decl. ¶5, Ex. B. The contract states that her classification is “non-tenure earning probationary status as defined by the District pursuant to Education Code Section 44909.” Garske Decl. ¶5, Ex. B. The “Name of the Categorically Funded Program” that funded my contract was “AEBG,” which is an acronym that means CAEP. Garske Decl. ¶5.

During the 2017-18 school year, Garske taught 30 hours of instruction per week in the subject matter of ESL to adult students in DACE. Garske Decl. ¶6. During the 2018-19 school year, Garske also taught 30 hours of instruction per week in the subject matter of ESL to adult students in DACE. Garske Decl. ¶6. In both 2017-18 and 2018-19, Garske provided instruction for over 75% of the school year. Garske Decl. ¶6.

On June 21, 2019, Garske signed a Contract of Employment with District for the period from July 1, 2019 through June 30, 2021. Garske Decl. ¶7, Ex. C. This period covers two complete school years: the 2019-20 school year and the 2020-21 school year. The contract states that Garske will be teaching courses in ESL to adult students. Garske Decl. ¶7, Ex. C. The contract states that Garske’s classification is “non-tenure earning probationary status, as defined by the District pursuant to Education Code Section 44909.” Garske Decl. ¶7, Ex. C. The “Name of the Categorically Funded Program” that funds her contract is “CAEP.” Garske Decl. ¶7, Ex. C.

During the 2019-20 school year to date, Garske has taught 30 hours of instruction per week in the subject matter of ESL to adult students in DACE. Garske Decl. ¶8.

(iv) Ochoa

Ochoa is a certificated teacher and LAUSD employee in DACE. Ochoa Decl. (APPX 29-34) ¶1. Ochoa taught classes to adults in DACE for over ten years, before his termination from employment after the 2015-16 school year. Ochoa Decl. ¶2. Ochoa was not granted tenure in LAUSD and was never classified by LAUSD as a permanent employee. Ochoa Decl. ¶2. Ochoa believes that he was misclassified in the 2015-16 school year and should have been classified for that school year as permanent under the Education Code. Ochoa Decl. ¶2.

Before the 2012-13 school year, LAUSD assigned Ochoa to teach 20 hours of instruction per week to adult students in DACE as an “Individual Instruction Lab Teacher,” an assignment often shortened to “I.I. Lab.” Ochoa Decl. ¶3. During the 2012-13 school year, Ochoa taught 20 hours of instruction per week to adult students in DACE for over 75% of the year. Ochoa Decl. ¶3. Because District did not tell Ochoa that he was classified as temporary, Ochoa believed that he was classified as probationary for the 2012-13 school year. Ochoa Decl. ¶3.

On or about May 13, 2013, Ochoa signed an LAUSD Form 1145 entitled “Verification of Adult Teacher’s Assignments,” on which he indicated that he believed his classification in LAUSD was probationary and that his assignment for the 2013-14 school year consisted of 20 hours of classes in DACE working as an Individual Instruction Lab Teacher. Ochoa Decl. ¶4, Ex. A.

The only relevant document in Ochoa’s personnel file for the 2012-13 school year was LAUSD Form 100, which states in handwriting, “automatic tenureship.” Ochoa Decl. ¶5, Ex. B. This document accurately reflects Ochoa’s assignment of 20 hours of classes as an I.I. Lab teacher for the 2012-13 school year. Ochoa Decl. ¶5, Ex. B.

Before the 2013-14 school year, LAUSD again assigned Ochoa to teach 20 hours of instruction per week to adult students in DACE as an Individual Instruction Lab Teacher. Ochoa Decl. ¶6. Because District did not tell Ochoa that he was classified as temporary, Ochoa believed he was classified as probationary for the 2013-14 school year. Ochoa Decl. ¶6.

On March 14, 2014, Ochoa signed an LAUSD Form 1145 entitled “Verification of Adult Teacher’s Assignments,” on which he indicated that he believed his classification in LAUSD was “permanent” (which was corrected to “B2” by LAUSD), and that his assignment for the 2013-14 school year consisted of 20 hours of classes in DACE working as an I.I. Lab teacher. Ochoa Decl. ¶7, Ex. C.

In 2013-14, Ochoa did not teach for 75% of the year and instead took approved medical leave for part of the year. Ochoa received letters from LAUSD for each period of leave during 2013-14 that his leave had been approved. Ochoa Decl. ¶8, Exs. D-F.

The only relevant document in Ochoa’s personnel file for the 2013-14 school year, as provided by LAUSD, was LAUSD Form 100, which indicates his status or classification is “B1.” Ochoa Decl. ¶9, Ex. G. This document accurately reflects Ochoa’s assignment of 20 hours of classes as an I.I. Lab teacher for the 2012-13 school year. Ochoa Decl. ¶9, Ex. G. “B1” reflects the first year of probationary status. Ochoa Decl. ¶9.

Before the 2014-15 school year, LAUSD assigned Ochoa to teach 20 hours of instruction per week to adult students in DACE as an Individual Instruction Lab Teacher. Ochoa Decl. ¶10. Because District did not tell Ochoa that he was classified as temporary, Ochoa believed he was classified as either permanent or probationary for the 2013-14 school year. Ochoa Decl. ¶10.

The only relevant document in Ochoa’s personnel file for the 2014-15 school year, as provided by LAUSD, was LAUSD Form 100, which indicates his status or classification as “B2,” indicating the second year of probationary status. Ochoa Decl. ¶11, Ex. C. This document accurately reflects Ochoa’s assignment of 20 hours of classes as an I.I. Lab teacher for the 2012-13 school year. Ochoa Decl. ¶11, Ex. H.

Before the 2015-16 school year, LAUSD assigned Ochoa to teach 17 hours of instruction per week to adult students in DACE as an Individual Instruction Lab Teacher in the subject of World History. Ochoa Decl. ¶12, Ex. I. On August 27, 2015, Ochoa signed an LAUSD Form entitled “Verification of Adult Teacher’s Assignments” (Form No. 1145), on which he indicated that his assignment for the 2015-16 school year consisted of 17 hours of classes in DACE working as an I.I. Lab and teaching World History. Ochoa Decl. ¶12, Ex. I. In addition, before the 2015-16 school year, Ochoa signed an “Offer of Contract of Employment” that indicates that he is a “Temporary Teacher” and teaching “I.I. LAB.” Ochoa Decl. ¶12, Ex. H.

The only relevant document in Ochoa’s personnel file for the 2015-16 school year, as provided by LAUSD, was LAUSD Form 100, which indicates his status or classification is “B1.” Ochoa Decl. ¶13, Ex. I. This document does not accurately reflect Ochoa’s assignment of 17 hours of classes as an I.I. Lab teacher and World History for the 2015-16 school year. Ochoa Decl. ¶13, Ex. I.

In 2015-16, Ochoa did not teach for 75% of the year and instead took approved medical leave for part of the year. Ochoa received letters from LAUSD for each period of leave that his leave had been approved. Ochoa Decl. ¶14, Exs. J-M.

While Ochoa was on approved medical leave during the 2015-16 school year, LAUSD provided him with a “Notice Of Non-Reelection” by letter dated May 11, 2016, stating that his employment with LAUSD had been terminated. Ochoa Decl. ¶15, Ex. N.

Apart from the Notice Of Non-Reelection, he has received no notice or communication indicating that his employment has continued with LAUSD. Ochoa Decl. ¶16. LAUSD has not given Ochoa an opportunity to contest his termination through any form of administrative appeal. Ochoa’s understanding is that he has no right to appeal his termination because he has been “non-reelected,” a phrase that indicates probationary status. Ochoa Decl. ¶16. He believes he should have been classified as permanent and given the right to contest his termination. Ochoa Decl. ¶16.

(v) Velasquez

Velasquez is a certificated teacher and LAUSD employee in DACE. Velasquez Decl. (APPX 66-68) ¶1. Velasquez does not have tenure and is not a permanent employee. Velasquez believes her classification is temporary under the Education Code because she can be fired by LAUSD when her contract of employment ends without the right to a layoff hearing. Velasquez Decl. ¶2.

On May 17, 2019, Velasquez signed a Contract of Employment with District for the period from July 1, 2019 through June 30, 2021. Velasquez Decl. ¶3, Ex. A. This period covers two complete school years: the 2019-20 and 2020-21 school years. The contract states that Velasquez will be teaching courses in ESL to adult students. Velasquez Decl. ¶3, Ex. A. The contract states that her classification is “non-tenure earning probationary status, as defined by the District pursuant to Education code Section 44909.” Velasquez Decl. ¶3, Ex. A. The “Name of the Categorically Funded Program” that funded the contract was the “CAEP.” Velasquez Decl. ¶3.

During the 2019-20 school year to date, Velasquez has taught 20 hours of instruction per week in the subject matter of ESL to adult students in DACE. Velasquez Decl. ¶4.

2. District’s Evidence

Kathy Norris (“Norris”), Deputy Budget Director for Instructional Programs, Fiscal Support, is responsible for the budget development and maintenance of fiscal programs associated with adult education for District. Norris Decl. (LAUSD APPX 721-22) ¶2. The term “budget development” means that Norris identifies the revenues and expenditures associated with the adult education program during the budget year. Norris Decl. ¶2. DACE is funded through a combination of state, federal, and local resources. Norris Decl. ¶4. CAEP limits the use of its funds to seven programs for adult education. Norris Decl. ¶5.

In the absence of an Education Code definition for "categorical", District's standard practice is to define "categorical funds" as funds that are restricted in some way, shape, or form. A restricted or categorical program cannot be used for a general public education purpose. Norris Decl. ¶6.

From District's perspective, CAEP constitutes a categorical fund; its funds are restricted and cannot be used for any general education purpose. Norris Decl. ¶7. The Standardized Account Code Structure ("SACS") set forth in the California School Accounting Manual ("CSAM"), assigns CAEP resource code 6391, which indicates CAEP is a restricted funding source. Norris Decl. ¶8, Exs. A, B. Adult Education teacher salaries are allowable costs under CAEP fund restrictions. Norris Decl. ¶9.

A regular school year for teachers in DACE consists of 182 days. Cienfuegos Decl. (LAUSD APPX 795-99) ¶5. A DACE teacher must work 136.5 days (75% of 182 workdays) to have a complete year pursuant to Education Code section 44908. When an employee does not serve a complete year, they remain in the same status. Cienfuegos Decl. ¶5.

Ochoa was employed as a probationary teacher in the 2012-13 school year and worked only 125 days. Cienfuegos Decl. ¶6, Ex. A. Ochoa did not serve a complete year in the 2012-13 school year. Cienfuegos Decl. ¶6, Ex. A.

Ochoa was employed as a probationary teacher in the 2013-14 school year and worked only 60 days. Cienfuegos Decl. ¶7, Ex. B. He was on an approved leave and did not serve a complete year. Cienfuegos Decl. ¶7, Ex. B.

Ochoa was employed as a probationary teacher in the 2014-15 school year and worked only 103 days. He did not serve a complete year. Cienfuegos Decl. ¶8, Ex. C.

E. Analysis

Petitioners seek mandamus directing District to reclassify individual Petitioners Kitching, Pratt, Garske, Velasquez, and Ochoa as permanent or probationary employees and ordering District to cease exempting CAEP-funded teaching positions under section 44909. Petitioners further seek a declaration that District may not deny probationary or permanent status to any teacher[4] in DACE where it is supported by CAEP funds. Petitioners also seek mandamus directing District to reinstate Ochoa as a permanent employee.

1. Section 44909

Teachers must complete two complete, consecutive years of probationary service in order to be classified as permanent. §44929.21(b). In DACE, 30 hours per week is considered a full-time assignment. A DACE probationary teacher must provide instruction in over 18 hours per week of classes for two consecutive, complete years to exceed the 60% threshold of section 44929.25 and become permanent or tenured. Kogan Dec. ¿4; APPX 310 (Cienfuegos Depo., p. 26).

LAUSD categorizes CAEP funds as categorical and posits Petitioners are exempt from tenure under section 44909. Section 44909 exempts teachers from the tenure track (1) if they teach in a categorically funded program (2) which is not required by federal or state statutes, and (3) the parties enter into a written contract. Stockton, supra, 204 Cal.App.4th at 461-62.

Petitioners Garske, Pratt, Kitching, and Velasquez all teach ESL and District has contracted with them to provide services for, respectively, a period from two to five years with support from CAEP funds. ESL is a mandated subject under CAEP. See §84913. Each of these Petitioners would qualify for probationary or permanent status but for District’s interpretation of section 44909.

Petitioners concede that they entered into written contracts with District in which their non-tenure track status was adequately set forth, but they dispute that DACE is a categorically funded program not required by state statute. Petitioners contend that a careful reading of the statutory tenure scheme shows that section 44909 does not apply for two reasons: (1) the state’s mandate to provide adult education services “to the extent of state support” contemplates that District is required to provide services under CAEP if it accepts those funds and therefore section 44909 does not apply; and (2) classes which fall under the regular educational program of a school district are not exempt from tenure requirements under section 44909 because CAEP now defines District’s regular program in DACE. Pet. Op. Br. at 10-11.

a. Zalac

In Zalac v. Governing Board of Ferndale Unified School District, (“Zalac”) (2002) 98 Cal.App.4th 838, a teacher contended that she was improperly classified as a temporary employee because the class size reduction program under which she was hired was not a “categorically funded project[]…not required by federal or state statute” under section 44090. The appellate court held in pertinent part that she was wrong. Id. at 839.

The Zalac court first quoted the sad truth from another court decision that “[e]ntry into the Education Code is painful.” Id. at 842 (citation omitted). The court noted the “rather complex system” designed to give teachers tenure, but also the statutory right of a school district to fill its short-range needs by employing teachers as temporary employees who serve at the district’s pleasure. Id. at 843. Section 44909 has no definition of the term “categorically funded project”, but the intent of its predecessor statute, section 13329, was to permit the hiring of teachers for categorically funded programs of undetermined duration without incurring responsibility to grant tenured status. Id. at 845 (citation omitted). This provision gave school districts flexibility to operate special programs to supplement their regular program and relieve them from having a surplus of probationary or permanent teachers when project funds were terminated or cut back. Id. at 845. This right to hire teachers for special programs did “not extend to ‘instructors in classrooms that are part of the regular educational program of a school.’” Id. (citing Kamin, supra, 72 Cal.App.3d at 1018-19 (teacher hired to replace permanent teacher in temporarily funded program had tenure because she was employed to teach regular educational program of school)).

While section 44909’s history provides only limited guidance about the parameters of a categorically funded project, the term has a recognized meaning in school finance. Id. at 846. School districts and county offices receive a specific “revenue limit” for K-12 students which provides base funding for each student. These agencies also received funds for categorical programs that address needs not met by base revenue limit funds. Id. at 847. A definition of “categorical programs” to mean programs outside the base revenue limit includes as “categorical” some programs funded as part of the revenue limit appropriation that in fact are add-ons operating as special programs. Id. The Zalac court concluded that, as a review of these many and diverse categorically funded programs reveals, a categorically funded project need not involve the creation of special classes divorced from the normal curriculum and may instead augment the curriculum in the manner specified by the particular program. The defining characteristic is that the program is financed outside the base revenue limit with funds designated for a use specified by the particular program. Id. at 848.

The statutorily-created class reduction size program was such a categorical program. The question was not whether kindergarten classes are mandated by the California Constitution, but whether classes of 20 or fewer pupils are required. Id. at 850. Plainly, they are not. A district’s participation in the program is expressly optional and not required by any statute. Id. Unlike some categorical programs, it is not state mandated. Id. Funds for the program are obtained by a special application not part of the base revenue limit and are designated for a particular use within the class size reduction program. Id. While section 44909 does not apply to a full-time teacher who is teaching a class that is part of the regular curriculum (Kamin), classes that are reduced in size because of funding specially applied for under the program are not “part of the regular educational program of a school.” Id. The teachers who teach in the reduced class size program are paid with funds from the program, not the base funding for unspecified general educational purposes. Id. at 851.

The rationale of section 44909 – that school districts should be permitted to hire additional teachers for special programs funded by the program with the flexibility to lay those teachers off if and when funding is discontinued – applies equally to the class size reduction program. Id. at 851. The school district may be disinclined to participate in a non-mandated program if there was a risk that teachers hired to implement the program would have seniority rights if the program were discontinued. Id. at 851. “While the increasing use of special educational programs to supplement school district funding may raise questions as to whether the reach of section 44909, and the number of teachers being denied credit towards tenure, is extending farther than desirable, these are questions properly address to the Legislature rather than to the courts. Id. at 851.

b. Adult Education Is a Categorically Funded Program Not Required by Statute

The primary source of adult education funding is administered through CAEP. See art. 9, §§ 84900 et seq. CAEP divides the state into geographical regions with one adult education consortium per region. §§ 84903(a), 84904(a). Any school district within the boundaries of the consortium is permitted to join as a member. §84905(a). LAUSD is a member of the Consortium. CAEP funds are distributed to Consortium members, including LAUSD, based on three-year funding schedule, after each member submits an education plan to the Consortium. §84906(a)(1). The CAEP statute expressly restricts funding usage to “adult education purposes” in seven program areas, including: “Programs for immigrants eligible for educational services in citizenship, ESL, and workforce preparation.” §§ 84913(a)(1)-(7), 84914.1.

The Zalac court concluded that a categorically funded project need not involve the creation of special classes divorced from the normal curriculum and may instead augment the curriculum in the manner specified by the particular program. The defining characteristic is that the program is financed outside the base revenue limit with funds designated for a use specified by the particular program. 98 Cal.App.4th at 848.

Zalac’s reasoning compels a conclusion that CAEP is a categorical program with categorical funds and services conducted under section 44909.

First, like the classroom size reduction program in Zalac, consortium membership is permissive and not state mandated. District is not statutorily required to join the Consortium; it may leave adult education entirely to the local community college district.

Second, like the Zalac program, funds for adult education are not part of the base revenue limit. Id. District receives CAEP funds from the Consortium and not directly from the state. The teachers who teach in DACE are paid with CAEP funds, not District’s base funding for unspecified general educational purposes.

Third, also like Zalac, the CAEP statute expressly restricts funding usage to the program which is not part of District’s K-12 curriculum. CAEP is restricted to “adult education purposes” in seven program areas, including: “Programs for immigrants eligible for educational services in citizenship, ESL, and workforce preparation.” §§ 84913(a)(1)-(7), 84914.1. CAEP funds only the “Core Mission” of adult education (APPX 460-62), not all adult education provided by District.

Fourth, except for a short period between 2009 and 2013, funding for adult education in the state always has been categorical. Prior to 2008-09, the state provided funding for adult schools through a categorical program that required school districts to use the monies for adult education. APPX 448. From 2009 to 2013, community colleges and school districts were permitted to use adult school funding for general purposes. The enactment of AB 86 in 2013 and AB 104 in 2014 restored funding for the consortia to use on the six instructional programs most closely aligned with adult education’s core mission. APPX 444. AB 104 provided $500 Million for an “Adult Education Block Grant” which was distributed to members of regional consortia to provide education services. APPX 534.

Fifth, both LAO and the Department of Education documents refer to or suggest that adult education is a categorical program. Thus, LAO recommended in its 2012 effort to restore adult education funding, that “the Legislature restore adult education as a stand-alone categorical program once flexibility sunsets at the end of 2014-15.” APPX 464 (emphasis added).

The Department of Education’s August 1, 2017 CAEP Guide does state that CAEP is not a grant, but rather is an ongoing state apportionment that can be used in future years to hire permanent staff, teachers and faculty. APPX 204. The ongoing nature of adult education funding supports Petitioners’ conclusion that CAEP is general and not categorical. However, the CAEP Guide also states that “CAEP apportionment is a restricted funding source” that can be used for only seven areas of adult education. APPX 201 (emphasis added).

AB 1809’s renaming of the Adult Education Block Grant to CAEP in 2018 also supports Petitioners because a block grant is likely to be categorical funding. However, the Department of Education’s September 23, 2019 CAEP Program Manual states that the Governor’s budget “includes $500 million ongoing Proposition 98 General Fund to support the Adult Education Block Grant Program….” APPX 239-40 (emphasis added).

At a minimum, LAO and the Department of Education view CAEP as a stand-alone, ongoing program with restricted funding and fund use.

Thus, like the classroom size reduction program in Zalac, CAEP “is a categorically funded program because the funds for this program are obtained by a special application not part of the base revenue limit and are designated for a particular use defined by the program.” 98 Cal.App.4th at 850. Section 44909 gives school districts flexibility to operate special programs to supplement their regular program and relieve them from having a surplus of probationary or permanent teachers when project funds were terminated or cut back. See id. at 845. The rationale of section 44909 applies equally to adult education. While section 44909 does not apply to a full-time teacher who is teaching a class that is part of the regular curriculum (Kamin), adult education is not part of District’s regular educational program. District may be disinclined to participate in adult education if there was a risk that teachers hired to implement the program would have seniority rights if the program were discontinued. Id. at 851.

Petitioners note that section 44909 cannot be read in isolation and must be harmonized with “the whole system of law of which it is a part.” Kavanaugh, supra, 29 Cal. 4th at 919 (internal citations and quotations omitted). The CAEP statutory scheme does not mention tenure in its text or in its legislative history. State Dep't of Pub. Health v. Superior Court, (2015) 60 Cal. 4th 940, 955–56; Kavanaugh, supra, 29 Cal. 4th at 919. For this reason, the courts interpreting the tenure provisions of the Education Code uniformly have balanced the competing interests of the school district and teachers in a manner which “accomplishes the Legislature's desire to allow school districts some flexibility in staffing specially funded projects, but does not allow them to circumvent the law through practices designed to frustrate the valid expectations of reemployment established by the tenure statutes.” Stockton, supra, 204 Cal. App. 4th at 458 (internal style omitted) (citing Zalac, supra, 98 Cal. App. 4th at 845). Reply at 5.

Petitioners note that the courts do not mechanically evaluate whether a categorical program is required by federal or state statute. Petitioners conclude that sections 8530 and 66010.3 prevent section 44909’s tenure exception from applying to CAEP-funded positions unless the state has not supported adult education for District, which is not the case. Section 44909 does not apply where a categorical project is “required by federal or state statutes”. Section 8530 provides: “Adult basic education is the responsibility of high school and unified school districts . . .” Section 66010.3 states that “[t]he public elementary and secondary schools shall be responsible for . . . adult instruction to the extent of state support.” (emphasis added); Orange Unified Sch. Dist. v. Rancho Santiago Cmty. Coll. Dist., (1997) 54 Cal. App. 4th 750, 762. Pet. Op. Br. at 10.

As a member of the Consortium, LAUSD received $381 million under CAEP from 2015-16 through 2018-19 and was required to use that funding “for adult education purposes” in seven express subject categories. §§ 84913, 84914.1. By any reasonable interpretation, if LAUSD is required to provide “adult instruction . . . to the extent of state support,” and CAEP provides that funding and mandates it be used “for adult education purpose,” then the CAEP represents a categorical program where District is “required by . . . state statutes” under section 44909 to provide adult education services. Therefore, by its own terms, section 44909 does not apply to state CAEP funding. Pet. Op. Br. at 11; Reply at 5-6.

As District notes, its participation in the Consortium and the provision of adult education services is voluntary. Adult instruction is not part of District’s “regular educational program” because it is not mandated by state law. Indeed, section 84905(a) provides that any school district located within the boundaries of the adult education region “shall be permitted to join the consortium as a member.” This is permissive language. While a school district must abide by certain requirements if it chooses to provide adult education, it is not mandated to provide adult education at all. Therefore, CAEP funds used in DACE are “categorically-funded projects which are not required by federal or state statutes.” Opp. at 11.

Petitioners analogize to Zalac and Kamin. They admit that neither court was presented with a categorical program that effectively becomes the entire educational program because the funds constitute 87% to 96% of the operational budget. However, both decisions expressed an understanding that section 44909’s exemption was only intended for funding outside of the general program contemplated by a “base revenue limit”. Zalac, supra, 98 Cal. App. 4th at 848. Pet. Op. Br. at 11-12. Petitioners contend that CAEP effectively defines the per pupil spending in DACE. CAEP is designed to be the general or regular fund for adult education in California, and it expressly defines those subjects which are part of its regular or core educational program for adult education services. Any other interpretation of the CAEP statute has the consequence of turning on its head the recognized default classification of teachers – tenure-earning, probationary status – and allowing section 44909’s exception to swallow the general tenure rule. Pet. Op. Br. at 12.

Petitioners conclude that, since the CAEP statutory scheme is wholly distinct from the tenure provisions of the Education Code, and since the Department of Education has indicated its support for school districts using CAEP funds to hire tenured or permanent staff, District cannot argue that the CAEP statutes created a system which authorize it to classify the majority of teachers in DACE as temporary. Pet. Op. Br. at 14. Because District does not have a significant funding source for DACE outside CAEP, ESL and all classes required under the CAEP statute fairly may be considered part of District’s DACE regular program. Accordingly, section 44909 cannot operate as an exemption for teachers providing instruction in these areas in CAEP-funded courses. See Kamin, supra, 72 Cal. App. 3d at 1019-20. Pet. Op. Br. at 12.

Petitioners are wrong. They essentially argue that because CAEP funds between 87% to 96% of DACE teacher compensation and other adult education expenditures, DACE cannot be a categorical program. There is no authority for this position. Zalac teaches that it is the source of funding – within or outside the base revenue limit – that is the controlling factor of a categorical program. 98 Cal.App.4th at 848. If the program is not mandated by statute, then the school district must be accorded section 44909’s flexibility for tenure decisions. This is not a mechanical application of section 44909, but an acknowledgement that a school district must be given tenure flexibility where it permissively participates in a program not funded by its base revenue limit.

Petitioners point out that section 44909 is not the sole exception to a simple tenure statute, but rather part of a detailed and complicated statutory scheme for teachers in DACE. In addition to section 44909, there are a large number of complicated exceptions to the default rule of tenure and (tenure-earning) probationary status, and some apply exclusively to adult education. See §§ 44908 (probationary teachers in adult education must complete 75% of the days of school to complete school year); 44910 (excluding adult education service in “regional occupational centers or programs” from tenure eligibility); 44919 (excluding adult education service from tenure that is “day to day,” lasts no more than four months, and constitutes “special day and evening classes for adults”); 44929.25 (excluding adult education service from tenure for assignment of ten hours or less a week in adult classes); and 44929.25 (adult education service of 60% or less of full-time assignment shall be classified as temporary employee). Petitioners argue that each of these exceptions becomes surplusage (or redundant) under District’s interpretation of CAEP funds as categorical funding subject to the section 44909 tenure exception. CAEP funds support 87-96% of teaching positions in DACE, and there would be no need for statutory tenure limitations in adult education under District’s interpretation. Reply at 3-4.

There is nothing redundant between Petitioners’ cited adult education tenure provisions and application of section 44909’s exemption for a categorical adult education program. As Petitioners admit that section 44909 does not prevent LAUSD from voluntarily granting tenure or tenure-earning probationary status to a CAEP-funded teacher. Reply at 5. The cited provisions apply if a school district decides to employ tenure-track teachers in adult education. There is no redundancy.

Petitioners also argue adverse teacher impacts from LAUSD’s decision to exempt CAEP funds from tenure in DACE. There has been a gradual elimination of tenured positions in adult education, which is the opposite of LAUSD’s ministerial obligation under the Education Code. From 2015-16 through the 2017-18 school year, there has been an increase to approximately 441 temporary teachers, a reduction leaving just two probationary teachers, and an overall reduction in the permanent classification of approximately 50 teachers. District admits that CAEP funds, due to their categorical nature, are “not available to provide funding for tenured positions” in DACE (APPX 91) and “there are no probationary teachers that would lead to a tenure[d] or permanent position in DACE”. APPX 313-15. Petitioners contend that nothing in the CAEP statutory scheme suggests that the Legislature contemplated a school district would use CAEP to end tenure for adult education teachers. Pet. Op. Br. at 13.

Petitioners add that it is impossible to square District’s position with the conclusion of Kamin and Zalac that section 44909 does not apply to teachers who are “paid with regular school district funds and assigned to teach a regular class.” Zalac, supra, 98 Cal. App. 4th at 851 (emphasis added). To hold otherwise permits state-wide obliteration of tenure in adult education. Reply at 5.

The simple facts are that (a) adult education is not part of District’s regular K-12 responsibilities and (b) sections 8530 and 66010.3 only require District to be responsible for adult instruction to the extent of state support. Adult education is not District’s “regular” work within the meaning of Kamin and Zalac. While CAEP’s categorical funding may swallow the vast majority of adult education and preclude tenure for an entire field of teachers, this is a policy issue that was addressed in Zalac: “While the increasing use of special educational programs to supplement school district funding may raise questions as to whether the reach of section 44909, and the number of teachers being denied credit towards tenure, is extending farther than desirable, these are questions properly address to the Legislature rather than to the courts. Id. at 851.[5]

DACE is a categorically funded program not required by state statute under section 44909.

2. Ochoa

Petitioners argue that, pursuant to sections 44916 and 44975, District misclassified Ochoa as temporary in 2015-16, and then unlawfully “non-reelected” him.

Teachers must complete two complete, consecutive years of probationary service in order to be classified as permanent. §44929.21(b). “A probationary employee who, in any one school year, as served for at least 75 percent of the number of days the regular schools of the district in which he is employed are maintained shall be deemed to have served a complete school year.” §44908. “No leave of absence when granted to a probationary employee shall be construed as a break in the continuity of service required for the classification of the employee as permanent”, but it also shall not be “considered as employment” under section 44908. §44975.

School districts are required to provide written notice to teachers of their classification “at the time of employment and thereafter in the month of July of each school year.” §44916. If a district fails to timely notify a teacher of their classification, “the certificated employee shall be deemed to be a probationary employee of the school district, unless employed with permanent status.” Id.; Kavanaugh, supra, 29 Cal. 4th at 921.

As articulated in the reply, Ochoa and District concur on the applicable law. A probationary employee must complete 75% of the school year to advance along the tenure track. If he does not serve a complete year, he will remain in the same probationary status. Cienfuegos Decl. ¿5; LAUSD APPX 797. The parties disagree on two factual issues: (1) whether Ochoa worked 75% of the school year in 2012-13; and (2) whether Ochoa worked 75% of the school year in 2014-15. Reply at 7.

Ochoa was a probationary teacher in the 2012-13 school year. Cienfuegos Decl. Dist. ¶6; Ochoa Decl. ¶¶3-5, Ex. B. A regular school year for a DACE teacher consists of 182 days. Cienfuegos Decl. ¶5. A DACE teacher must work 136.5 days (75% of 182 workdays) to have a complete year under section 44908. Ibid. LAUSD’s payroll records for this school year show that Ochoa worked 125 days. Dist. APPX 797-98. Ochoa declares without documentation that he taught 20 hours per week to adult students in DACE for over 75% of the year.” Ochoa Decl. ¶3. District’s documentary evidence is more persuasive than Ochoa’s conclusion.

In 2013-14, District rehired Ochoa to work 20 hours per week, again as a probationary employee. Cienfuegos Decl. ¶7; Ochoa Decl. ¶9, Ex. G. He worked only 60 days and received an approved medical leave. Dist. APPX 806-10; Ochoa Decl. ¶8, Exs. D-F. It is undisputed that Ochoa did not work a complete year.

In 2014-15, Ochoa again was a probationary employee. Cienfuegos Decl. ¶8; Ochoa Decl. ¶7. District documentation for 2014-15 indicates that he was probationary and in his second probationary year (cited as “B2”). Ochoa Decl. ¶11, Ex. C. District’s payroll records show that Ochoa worked 103 days. Cienfuegos Decl. ¶8, Ex. C. Ochoa declares that he taught for over 75% of the year. Ochoa Decl. ¶10. District’s documentary evidence is more persuasive.

For the 2015-16 school year, Ochoa signed a contract listing him as a temporary teacher. Ochoa Decl. ¶12, Ex. H. LAUSD documentation lists him as a probationary B1 teacher. Ochoa Decl. ¶13, Ex. I. Ochoa did not teach 75% of the year and took approved medical leave. Ochoa Decl. ¶14, Exs. J-M. LAUSD issued Ochoa a notice of non-re-election on May 11, 2016. Ochoa Decl. ¶15, Ex. N.

Petitioners contend that, after Ochoa served two probationary years with one intervening year of approved medical leave, District was obligated to classify Ochoa as permanent under section 44929.21(b) when it re-employed him for the 2015-16 school year. By re-employing Ochoa as a temporary employee at the start of 2015-16 school year, District failed to comply with its ministerial obligation to grant Ochoa tenure under section 44929.21(b). His non-reelection at the end of the 2015-16 year violated his dismissal rights under section 44939 and District must reinstate him and grant him permanent status. Pet. Op. Br. at 15.

District contends that Ochoa never completed 75% of the workdays for any school year. Even if he had done so, he did not serve two complete consecutive school years to become a permanent employee as required by section 44929.21(b). Opp. at 13.

Ochoa’s theory for permanent status is that he was Probationary 1 in 2012-13, Probationary 2 in 2013-14 and 2014-15, and became permanent by District’s decision to rehire him for the 2015-16 school year. Ochoa’s theory is dependent on the contention that holidays must be counted as workdays in the calculation of 75% of the 182 work days required for a DACE teacher. Ochoa provides no authority or evidence to support his argument.

Section 44908 provides: “A probationary employee who, in any one school year, has served for at least 75 percent of the number of days the regular schools of the district in which he is employed are maintained shall be deemed to have served a complete school year.” Thus, Ochoa’s argument depends on whether he has “served” for 75% of the “number of days” District’s regular schools “maintain”. District’s evidence is that a DACE teacher must actually work 75% of 182 workdays, or 136.5 days. Cienfuegos Decl. ¶5. District does not count holidays in the number of days which its schools “maintain”. Ochoa has not shown that he completed any year of his probationary service and he is not a permanent employee under section 44929.21(b).

In his opening brief, Ochoa also relies on section 44916, which requires District to provide written notice to teachers of their classification “at the time of employment and thereafter in the month of July of each school year.” §44916. If a district fails to timely notify a teacher of their classification, “the certificated employee shall be deemed to be a probationary employee of the school district, unless employed with permanent status.” Id.; Kavanaugh, supra, 29 Cal. 4th at 921. Pet. Op. Br. at 14-15.

For the first time in reply, Ochoa argues that, even if he is not a permanent employee, he was in the second year of probationary status and District failed to timely non-reelect him by March 15, 2016 as required by section 44929.21(b). Therefore, he was entitled to reelection as a probationary employee for the 2016-17 school year. Reply at 8.

Section 44929.21(b) provides in part that “[t]he governing board shall notify the employee, on or before March 15 of the employee’s second complete consecutive school year of employment…of the decision to reelect or not reelect the employee for the next succeeding school year to the position. In the event that the governing board does not give notice pursuant to this section on or before March 15, the employee shall be deemed reelected for the next succeeding school year.”

While another portion of section 44929.21(b) was at issue in Petitioners’ opening brief, the timing of Ochoa’s non-reelection was not. In presenting a new issue for the first time in reply, Petitioners have not given District an opportunity to respond. Therefore, the issue is waived. Regency Outdoor Advertising v. Carolina Lances, Inc., (1995) 31 Cal.App.4th 1323, 1333.[6]

Petitioner Ochoa’s claim is denied.

F. Conclusion

The TAP is denied. District’s counsel is ordered to prepare a proposed judgment, serve it on Petitioners’ counsel for approval as to form, wait ten days after service for any objections, meet and confer if there are objections, and then submit the proposed judgment along with a declaration stating the existence/non-existence of any unresolved objections. An OSC re: judgment is set for July 28, 2020 at 1:30 p.m.


[1] All further statutory references are to the Education Code unless otherwise stated.

[2] Citations are to the Bates-stamped pages in the parties’ supporting appendices. Petitioners’ appendix is “APPX” and District’s appendix is “LAUSD APPX”.

[3] District relies on LAO’s “The 2013-14 Budget” Overview of the Governor’s Budget”, which states: “The Governor’s budget…provides a base Proposition 98 General Fund augmentation of $300 million to create a new adult education categorical program with [the California Community College’s (“CCC”)] budget.” APPX 472 (emphasis added). Opp. at 5. This LAO document is not particularly useful because it sets forth the Governor’s proposal that adult education be reposed solely in CCC and not school districts, which did not come to pass.

[4] The Education Code refers to certificated employees, but the court will use the term “teacher” for convenience.

[5] Petitioners also argue that LAUSD’s refusal to grant tenure to teachers in DACE based on section 44909 also cannot be squared with the temporary classification, which must be strictly construed. Stockton, supra, 204 Cal. App. 4th at 457. Pet. Op. Br. at 12-13.

District has not interpreted section 44909 improperly. In Stockton, supra, 204 Cal.App.4th at 462, the court stated that a district must “follow the letter of statute”, meaning that the program for which the teacher is hired must satisfy section 44909 and the district must enter into an agreement with the person hired. Section 44909 unquestionably permits the hiring of temporary employees for categorical programs not required by federal or state statute. Zalac, supra, 98 Cal.App.4th at 843. The issue is whether CAEP is a categorical program not mandated by state statute, not whether District has properly interpreted section 44909 to permit temporary employees.

[6] District also argues that Petitioners arguments are beyond the scope of the TAP, which addresses only CAEP funding from 2016-17 and 2019-19, not 2015-16. Opp. at 12. Petitioners do not reply to this argument, and the court need not address it.