California Attorney General Opinion No. 81-301

_________________________ ________________________________________________________________________ TO BE PUBLISHED IN THE OFFICIAL REPORTS OFFICE OF THE ATTORNEY GENERAL State of California GEORGE DEUKMEJIAN Attorney General : OPINION : No. 81-301 : of : MAY 14, 1981 : GEORGE DEUKMEJIAN : Attorney General : : Edmund E. White : Deputy Attorney General : : THE HONORABLE JOHN GARAMENDI, SENATOR, THIRTEENTH DISTRICT, requests an opinion on the following question: Must a governing board of a school district comply with the requirements of Education Code section 4210, pertaining to the discontinuance of an elementary school after district unification, upon a petition by parents being duly filed with the board in 1981 where the school district was unified in 1966? CONCLUSION A governing board of a school district must comply with the requirements of Education Code section 4210, pertaining to the discontinuance of an elementary school after district unification, upon a sufficient petition by parents being duly filed with the board, irrespective of when the school district was unified, if the statute is otherwise applicable. 1 80-805 ANALYSIS Education Code section1 4200 provides in essence that the organization of school districts into unified2 school districts is a primary legislative goal and, further, that this form of school district organization “be ultimately adopted throughout the state.” (See generally, Fullerton Joint Union High School Dist. v. State Bd. of Education (1981) 115 Cal. App. 3d 22.) Section 4210 pertains to a situation where an elementary school, which has been included in a unified district because of a reorganization of districts under specified provisions of the Education Code, is proposed to be “discontinued” by the governing board of a unified district. Under the conditions therein described, a petition signed by the appropriate numbers of parents, when filed with the board, causes the following consequence: “An elementary school which is continued in operation by the filing of a petition pursuant to this section, shall remain in continuance for a period of three school years, unless the petition provides for a shorter period of continuance. However, a school district, admittedly subject to section 4210 with respect to every other applicable condition, contends that section 4210 only applies at the time that a district is unified and not thereafter. In this instance, the district was unified in 1966. Accordingly, the issue is whether section 4210 is applicable to the unified district in 1981 upon an appropriate petition being filed with the governing board. Section 4210 does not contain any language expressly indicating a period of time during which it is applicable upon a district becoming unified. Section 4210 provides as follows: “(a) An elementary school which has been included in a unified district because of a reorganization of districts under provisions of this chapter or, under the provisions of Article 2 (commencing with Section 35510) of Chapter 3 of Part 21 of Division 3 of Title 2 or Article 4 (commencing with Section 73160) of Chapter 2 of Part 46 of Division 7 of Title 3 relating to formation of new school districts by petition shall be 1 All unidentified section references are to the 1978 Reorganized Education Code. All unidentified references to former sections are to the 1959 Education Code. 2 A unified school district means a district maintaining grades kindergarten or 1 through 12. (§ 83.) 2 81-301 maintained as an elementary school by the unified district unless discontinued as provided in this section. The governing board of the unified district may adopt a resolution or order to discontinue the elementary school at any regular or special meeting of the board and the order or resolution shall be in effect after 30 days unless within this period of time a petition is filed with the governing board requesting the continuance of the school signed by the parents or guardians of at least 10 or one-third, whichever number is the greater, of children of elementary school age, who are eligible to attend such school at the time of the petition. The signature of one parent is sufficient to represent all of the children of such parent. The parents or guardians eligible to sign such petitions shall be residents within the boundaries of the component elementary school district which maintained the school prior to the establishment of the unified school district and shall be qualified electors within such district at the time the petition is filed, and shall have children of elementary school age who attend or are eligible to attend such school. An elementary school which is continued in operation by the filing of a petition pursuant to this section, shall remain in continuance for a period of three school years, unless the petition provides for a shorter period of continuance. If the governing board intends to discontinue the elementary school at the expiration of such period, it shall, commencing at least 90 days prior to the expiration of such period, publish in a newspaper of general circulation in the county, once each week for at least three weeks, a notice of intended discontinuance, and may thereafter adopt a resolution or order as heretofore provided. If a school is discontinued as herein provided, the governing board of the unified school district may maintain the building for community and civic center and other lawful purposes. “(b) Subdivision (a) of this section does not apply to any unified school district which has an average daily attendance of 15,000 or more or to a school which is five miles or less from another elementary school.” It is noted that the statute provides in part that the parents who are eligible to sign such petitions are specified to be “. . . residents within the boundaries of the component elementary school district which maintained the school prior to the establishment of the unified school district. . . .” From this factor and from the context in which the section was originally enacted, it is contended that section 4210 only applies in the year in which a school district is unified. We do not agree. 3 81-301 Section 4210 was formerly numbered section 3106 of the 1959 Education Code. The change of section numbers and recodification of the Education Code in 1978 had no substantive effect. (§ 3.) The import of former section 3106 was considered in Stratton v. Board of Trustees (1972) 28 Cal. App. 3d 419. The issue in that case concerned the elementary school district residency of the parents with respect to a petition filed with the governing board of the Plumas County Unified School District in respect to the Meadow Valley Elementary School, which school was located within the district. It is instructive to note that the Plumas County Unified School District was unified in 1949 and that the governing board determined in 1970 to close the Meadow Valley Elementary School at the conclusion of the 1969–1970 school year. The court determined that a number of parents residing within the old elementary school district boundaries had elected, pursuant to a valid order of the unified school district governing board, to have their children attend a different elementary school. The issue, thusly, was whether such parents were the parents of children of elementary school age “. . . who are eligible to attend such school at the time of the petition.” The court determined that such parents did not qualify and therefore the petition was insufficient. The court, then, did not have to decide whether, if there were sufficient valid signatures, the statute nevertheless would be applicable. However, the court noted in footnote 2, 28 Cal. App. 3d at 422 that section 3106 had been amended, subsequent to the filing of the legal proceeding being considered by the court, so as to provide that it would not be applicable to any school district that was unified on or before July 1, 1963. (§ 3106 was added to the Ed. Code in 1963.) After mentioning the legislative amendment, the court noted that: “Since the Plumas Unified School District was unified in 1949, the second exclusion [referring to 1963] is applicable to it. Thus, even if plaintiffs were successful in the present action, their victory could well be illusory in view of the board’s present clear authority to close the school immediately without the parents’ right of petition.” The court further noted the Legislature’s statement of “urgency” made in respect of the 1972 amendment to section 3106 (Stats. 1972, ch. 132), to wit: “In several unified school districts there have been decreases in overall student attendance at certain schools of component school districts that existed prior to the establishment of a unified school district. Since a number of these schools are no longer required to meet the educational needs 4 81-301 of the community, it would be prudent to close some of these schools so that the public money would not be wasted by keeping them open for another year. To authorize the mechanism of immediate closing of some of these schools, it is necessary that this act take immediate effect.” Thus, it is apparent that the court was cognizant of the issue of the applicability of this statute to a unified school district after its unification. We think it is of some help in determining the correct construction of the statute. Further, that same year the Legislature acted to delay the effective date of chapter 132 (Stats. 1972, ch. 836), referred to in footnote 2 of Stratton, supra. The Legislature added subdivision (c) to section 3106 and added section 1.2 and section 2 to chapter 836, each reading as follows: “(c) Subdivision (b) shall not become applicable until July 1, 1973, with respect to any school district which was a party in an action or proceeding which was pending or in progress in a court of record in this state on June 12, 1972, and which placed in issue the powers and duties of the governing board of the school district under this section as this section read as amended by Chapter 1074 of the Statutes of 1963. “SEC. 1.2. The amendments to Section 3106 of the Education Code effected by this act shall be deemed to have been in effect and operative on and after June 12, 1972, as though Chapter 132 of the Statutes of 1972 had not taken effect, for purposes of any action or proceedings which were pending or in progress in a court of record in this state on that date and which placed in issue the powers and duties of the governing board of a school district under Section 3106 of the Education Code, as that section read as amended by Chapter 1074 of the Statutes of 1963. “SEC. 2. This act is an urgency statute necessary for the immediate preservation of the public peace, health or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting such necessity are: “The enactment of Chapter 132 of the Statutes of 1972 has, because of circumstances of which the Legislature had not been apprised, given rise to inequitable results in the administration of several unified school districts, by excluding these districts from prescribed procedures relating to the continuation of specified schools following school district reorganizations. 5 81-301 In order that these administrative difficulties may be ameliorated at the earliest possible time it is essential that this act take effect immediately.” Thus, the Legislature stayed the amendment that excluded from the operation of section 3106 those unified schools that were unified before 1963. Then in 1975 the Legislature deleted from section 3106 its 1972 exemption for schools that were unified before 1963. (Stats. 1975, ch. 463.) In section 3 of chapter 463 the Legislature stated that: “SEC. 3. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting such necessity are: “In order to insure that certain elementary schools of component school districts that existed prior to the establishment of a unified school district and which are still needed to meet the educational needs of the community will be continued in existence, it is necessary that the provisions of this act go into immediate effect.” Thus, this legislative history makes quite clear the continued applicability of former section 3106 (now § 4210) to unified school districts that were unified before 1963. Thus, former section 3106 cannot be construed as only applying in the year in which a school district becomes unified. Section 4210 is simply a restatement of former section 3106 upon the reorganization of the Education Code in 1978. A fortiori, section 4210 applies to school districts that became unified after 1963 and is not restricted in its application only to the year of unification. ***** 6 81-301