The opinion
Filed 5/1/20 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
COAST COMMUNITY COLLEGE DISTRICT et al.,
Plaintiffs and Appellants, C080349
v. (Super. Ct. No. 34-2014-
80001842CUWMGDS)
COMMISSION ON STATE MANDATES,
Defendant and Respondent;
ORDER MODIFYING
DEPARTMENT OF FINANCE, OPINION AND DENYING
Real Party in Interest and Respondent. REHEARING
[CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed in this case on April 3, 2020, be modified
as follows:
On page 3, second full paragraph, last sentence, insert “54626, subdivision (a)”
between “51025” and “55760” so that the sentence now reads:
1
“Pursuant to the parties’ request, we will direct the trial court to remand the portions of
the test claim based on regulations 51006, 51014, 51016, 51018, 51020, 51025, 54626,
subdivision (a), 55760, 55825 through 55831, and the Handbook of Accreditation and
Policy Manual to the Commission for further determination.”
On page 45, second full paragraph, last sentence, delete “reimbursement by the
state is required” and replace with “the Commission must decide whether the Community
Colleges incurred any increased costs after July 1, 1980. (Gov. Code, § 17514.)” so that
the sentence now reads:
“And, as we explain in part III post, the Commission must decide whether the
Community Colleges incurred any increased costs after July 1, 1980. (Gov. Code,
§ 17514.)”
On page 50, first full paragraph, delete the last sentence and replace with the
following:
“Because the Commission has not yet addressed this requirement for subvention, we will
direct the trial court to remand this portion of the claim so the Commission may decide in
the first instance whether the Community Colleges were required to incur any increased
costs after July 1, 1980. (Gov. Code, § 17514.)”
In the Disposition, page 55, second full paragraph, insert “54626, subdivision (a)”
between “51025” and “55760” so that the paragraph now reads:
“The trial court is directed to remand to the Commission for further determination the
portions of the test claim based on Education Code sections 76300 through 76395,
regulations 51006, 51014, 51016, 51018, 51020, 51025, 54626, subdivision (a), 55760,
55763, 55825 through 55831, and the Handbook of Accreditation and Policy Manual.”
2
This modification changes the judgment. (Cal. Rules of Court, rule 8.264(c)(2).)
The petition for rehearing is denied.
FOR THE COURT:
/S/
RAYE, P. J.
/S/
MAURO, J.
/S/
HOCH, J.
3
Filed 4/3/20 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
COAST COMMUNITY COLLEGE DISTRICT et al.,
Plaintiffs and Appellants, C080349
v. (Super. Ct. No. 34-2014-
80001842CUWMGDS)
COMMISSION ON STATE MANDATES,
Defendant and Respondent;
DEPARTMENT OF FINANCE,
Real Party in Interest and Respondent.
APPEAL from a judgment of the Superior Court of Sacramento County,
Christopher E. Krueger, Judge. Affirmed in part and reversed in part.
Dannis Woliver Kelley, Christian M. Keiner, William B. Tunick, and Chelsea
Olson Murphy for Plaintiffs and Appellants.
Camille S. Shelton for Defendant and Respondent.
Kamala D. Harris, Attorney General, Douglas J. Woods, Senior Assistant Attorney
General, Tamar Pachter, Supervising Deputy Attorney General, and P. Patty Li, Deputy
Attorney General for Real Party in Interest and Respondent.
1
Article XIII B, section 6, subdivision (a) of the California Constitution (Section 6)
generally requires state “subvention,” i.e., financial aid or reimbursement, when the
Legislature or a state agency mandates that a local government entity provide a new
program or a higher level of service. (Hayes v. Commission on State Mandates (1992)
11 Cal.App.4th 1564, 1577 (Hayes).) The Commission on State Mandates (the
Commission) is responsible for determining whether a local entity is entitled to
reimbursement from the state pursuant to Section 6. (City of San Jose v. State of
California (1996) 45 Cal.App.4th 1802, 1807.) A local entity seeking reimbursement
must file a claim with the Commission. (Id. at pp. 1807-1808.) Adjudication of the first
claim, or test claim, regarding a particular statute or regulation governs subsequent claims
based on the same statute or regulation. (Ibid.)
This case involves claims for subvention by community college districts pertaining
to 27 Education Code sections and 141 regulations. The regulations include “minimum
conditions” that, if satisfied, entitle the community college districts to receive state
financial support. (Cal. Code Regs., tit. 5, former §§ 51000-51027.)1 As to the minimum
conditions, the Commission generally determined that reimbursement from the state is
not required because, among other things, the state did not compel the community college
districts to comply with the minimum conditions. Coast Community College District,
North Orange County Community College District, San Mateo County Community
College District, Santa Monica Community College District, and State Center
Community College District (the Community Colleges) filed a petition for writ of
mandate challenging the Commission’s decision. The trial court denied the petition and
entered judgment, and the Community Colleges appeal.
1 For clarity, we will distinguish between statutes and title 5 regulations by using the
words regulation or regulations when referencing a particular regulation section, e.g.,
regulation 51000.
2
We conclude the minimum condition regulations impose requirements on a
community college district in connection with underlying programs legally compelled by
the state. The Commission suggests the minimum conditions are not legally compelled
because the Community Colleges are free to decline state aid, but that argument is
inconsistent with the statutory scheme and the appellate record.
This conclusion does not end our analysis, however, because the Commission
already identified some items for reimbursement, other items are not before us, and for
some items it has not been established that remand is otherwise appropriate. Based on a
detailed review of the statutes and regulations at issue, we will reverse the judgment with
regard to regulations 51000, 51006, 51014, 51016, 51018, 51020, 51025, 54626,
subdivision (a), 55825 through 55831, regulation 55760 in cases involving mistake,
fraud, bad faith or incompetency, and the Handbook of Accreditation and Policy Manual.
Pursuant to the parties’ request, we will direct the trial court to remand the portions of the
test claim based on regulations 51006, 51014, 51016, 51018, 51020, 51025, 55760,
55825 through 55831, and the Handbook of Accreditation and Policy Manual to the
Commission for further determination.
However, we will affirm the judgment with regard to Education Code sections
66738, subdivision (b), 66741, 66743, 78210 through 78218, paragraphs 2, 4 and 5 of
section 66740, the portion of regulation 51008 dealing with education master plans,
regulations 51024, 54626, subdivisions (b) and (c), 55005, 55100, 51012, 55130, 55150,
55170, 55182, 55205 through 55219, 55300, 55316, 55316.5, 55320 through 55322,
55340, 55350, 55500 through 55534, 55600, 55602, 55602.5, 55603, 55605, 55607,
55620, 55630, 55752, 55753, 55753.5, 55758.5, 55761, 55764, 55800.5, 55805, 55806,
55807, 55808, 55809, 58102, 58107, 58108, 59404, the portion of regulation 55000 et
seq. relating to community service classes, and pages A-1 to A-54 of the Chancellor’s
Program and Course Approval Handbook.
3
Moreover, we will reject the Community Colleges’ claim with regard to
regulations 51002, 51004, 51021, 51022, 51023, 51023.5, 51023.7 and 51027 because
the Community Colleges do not dispute that the Commission already approved
reimbursement of costs associated with those regulations. We will also reject the
Community Colleges’ challenges to the parameters and guidelines. The test claims based
on regulation 51008 dealing with capital construction master plans and former
regulations 51010 and 51026 were severed and considered in other matters; we will not
consider the claim for subvention based on those test claims. In addition, we will direct
the trial court to remand the test claim based on Education Code sections 76300 through
76395 and regulation 55763 to the Commission for determination.
BACKGROUND
The Los Rios Community College District submitted a test claim seeking
subvention for costs associated with two Education Code sections and 22 regulations
relating to requirements to prepare, publish and implement various policies, procedures
and notices to students. About a week later, the Santa Monica Community College
District submitted a test claim seeking subvention for costs associated with 76 Education
Code sections and 160 regulations relating to minimum conditions for state aid.2 We will
refer to the Los Rios and Santa Monica Community College Districts as the claimants.
The two test claims, which were based in part on the same regulations, were
consolidated and denominated the Minimum Conditions for State Aid test claim. The
Commission subsequently consolidated a portion of a test claim filed by West Kern
Community College District with the Minimum Conditions for State Aid test claim. It
also severed the portion of the Minimum Conditions for State Aid test claim relating to
2 We will discuss the version of the regulations in effect at the time the claimants filed
their test claims, using the designation “former” in our discussion to refer to test claim
regulations amended after the test claims were filed.
4
prohibition against discrimination in employment and programs for consideration with
the test claim filed by West Kern Community College District, which it called the
Discrimination Complaint Procedures test claim. In addition, the Commission severed
the portion of the Minimum Conditions for State Aid test claim relating to Education
Code sections 70902, subdivision (b)(2), 81820, 81821 and 81823 for consideration with
a matter it referred to as the Community College Construction test claim.
The Commission adopted a statement of decision for the Minimum Conditions for
State Aid test claim and subsequently adopted parameters and guidelines. The
Community Colleges filed a petition for writ of mandate in the trial court challenging the
statement of decision and the parameters and guidelines. The trial court denied the
petition and entered judgment.
DISCUSSION
I
The Community Colleges argue the Commission erred in concluding that
Education Code sections 70901, 70901.5 and 70902 and former regulations 51000
through 51027 were not state mandates. They disagree with the Commission’s
conclusion that community college districts were not compelled to implement the
minimum conditions set forth in former regulations 51000 through 51027.
The state must reimburse a community college district for costs mandated by the
state (Gov. Code, §§ 17519, 17561, subd. (a)), including increased costs a community
college district is required to incur as a result of a statute or regulation mandating a new
program or a higher level of service for an existing program. (Gov. Code, §§ 17514,
17516, 17519; Hayes, supra, 11 Cal.App.4th at p. 1581; see City of Sacramento v. State
of California (1990) 50 Cal.3d 51, 67, fn. 11.) A “ ‘program’ ” carries out “the
governmental function of providing services to the public” or refers to “laws which, to
implement a state policy, impose unique requirements on local governments and do not
apply generally to all residents and entities in the state.” (County of Los Angeles v. State
5
of California (1987) 43 Cal.3d 46, 56.) Whether a statute or regulation imposes a state
mandate subject to reimbursement under Section 6 is a question of law which we
independently review. (Department of Finance v. Commission on State Mandates (2016)
1 Cal.5th 749, 762.) With regard to the minimum conditions challenged in this case, the
parties focus on the first aspect of the state mandate analysis, whether the state has legally
or practically compelled the community college districts to comply with the minimum
conditions. (See Department of Finance v. Commission on State Mandates (Kern High
School Dist.) (2003) 30 Cal.4th 727, 743, 748 (Kern).) If we conclude the answer is yes,
the parties ask that claims regarding the minimum conditions be remanded back to the
Commission for consideration of the remainder of the mandate analysis, whether the
minimum conditions involve a new program or higher level of service.
A
Education Code section 70901 delineates the duties and functions of the state
Board of Governors of the California Community Colleges (state Board of Governors),
the state entity that supervises community college districts. Education Code
section 70901, subdivision (b)(6)(A) requires the state Board of Governors to establish
minimum conditions “entitling districts to receive state aid for support of community
colleges.” In addition, Education Code section 70901.5 requires the state Board of
Governors to establish procedures for the adoption of rules and regulations governing
California community colleges. Because the Community Colleges do not show how
Education Code sections 70901 and 70901.5 require community college districts to
engage in any activity, they have not established that those statutes constitute a state
mandate. (Cal. Rules of Court, rule 8.204(a)(1)(B); People v. Freeman (1994) 8 Cal.4th
450, 482, fn. 2 (Freeman) [a reviewing court need not discuss undeveloped claims].)
However, former regulation 51000 et seq. set forth the minimum conditions
referenced in Education Code section 70901, and those state regulations require the
governing boards of community college districts to adopt standards, policies and
6
procedures on a variety of topics. As we will explain, the minimum condition regulations
impose requirements on a community college district in connection with underlying
programs legally compelled by the state.
The state specifies the mission and functions of California community colleges.
California community colleges “shall, as a primary mission, offer academic and
vocational instruction at the lower division level for both younger and older students,
including those persons returning to school.” (Ed. Code, § 66010.4, subd. (a)(1).) The
community colleges must offer instruction through the second year of college. (Ibid.)
State law also requires the community colleges to provide remedial instruction,
instruction in English as a second language, adult noncredit instruction, support services
which help students succeed at the postsecondary level, and adult noncredit education
curricula. (Id., subd. (a)(2)(A), (B).) In addition, state law specifies that it is a mission of
the community colleges “to advance California’s economic growth and global
competitiveness through education, training, and services that contribute to continuous
work force improvement.” (Id., subd. (a)(3).)
The state also imposes, through the minimum condition regulations, requirements
a community college must satisfy in meeting its underlying legally-compelled functions.
For example, former regulation 51002 required a community college to establish
standards of scholarship, including grading practices (former regulation 55751),
standards for grade point averages (former regulation 55758.5), and procedures for the
correction of grades (former regulation 55760). Former regulation 51004 required a
community college to adopt regulations regarding degrees and certificates. Former
regulation 51006 required a community college to adopt a resolution declaring an open
course policy. Former regulation 51014 required a community college to obtain state
Board of Governors approval of any new college or educational center. Former
regulation 51016 required a community college to be accredited. Regulation 51020
requires a community college to have stated objectives for its instructional program. And
7
regulation 51021 requires a community college to establish a curriculum satisfying the
aforementioned objectives, with the curriculum subject to state Chancellor approval.
Moreover, while state law requires a community college to provide support services to
help students succeed at the postsecondary level (Ed. Code, § 66010.4, subd. (a)(2)(A)),
regulation 51018 requires a community college to provide a counseling program,
including academic, career and personal counseling.
Compliance with the minimum condition regulations entitles a community college
district to continue receiving state aid. (Ed. Code, §§ 66700, 70901, subd. (b)(6); Cal.
Code Regs., tit. 5, former § 51000.) The regulations require the state Chancellor of the
California Community Colleges to review community colleges to determine whether they
have met the minimum conditions. (Cal. Code Regs., tit. 5, former § 51100, subd. (a).)
If the state Chancellor determines a community college may not be in compliance with
the minimum conditions, the state Chancellor shall request an official written response
from the community college. (Id., former § 51102, subd. (a).) The state Chancellor shall
pursue one or more enforcement courses of action based on the gravity of the alleged
noncompliance, such as accepting the response from the community college, requiring
the community college to submit and adhere to a timetable for compliance, and/or
withholding state aid with approval of the state Board of Governors. (Id., subds. (b), (c).)
B
Reimbursement from the state is not required when a local agency or school
district participates voluntarily in a program, i.e., participates without legal or practical
compulsion. (Department of Finance v. Commission on State Mandates (2009)
170 Cal.App.4th 1355, 1365-1366; City of Merced v. State of California (1984)
153 Cal.App.3d 777, 782-784 (City of Merced).) Here, the Commission argues the
minimum condition regulations do not amount to legal compulsion because satisfaction
of the minimum conditions merely “entitles” a community college to receive state aid.
The trial court agreed, addressing the question of legal compulsion by stating, “As in
8
Kern, the [trial] court agrees that [the Community Colleges] are not legally compelled to
comply with the minimum conditions. Instead, just as the school districts in Kern only
had to comply with the notice and agenda requirements if they wanted program funds,
[the Community Colleges] here only have to comply with the minimum conditions if they
want to become entitled to receive state aid.” (Italics omitted.)
The Commission continues to rely on Kern, supra, 30 Cal.4th 727 in support of its
contention that there is no legal compulsion. Kern involved state statutes requiring
certain school district councils and advisory committees to provide notice of meetings
and post meeting agendas in connection with particular underlying programs. (Id. at
pp. 730-731.) The Supreme Court said that in determining whether the notice and
posting requirements were state mandates, the proper focus was not on whether the notice
and posting requirements were compelled by the state, but instead whether the underlying
programs were compelled. (Id. at p. 743.) In that case, because the school districts
voluntarily participated in the underlying programs, the costs for the notice and posting
requirements were not subject to subvention under a legal compulsion theory. (Id. at
pp. 743, 745.)
This case is different. The notice and posting requirements in Kern applied to
discrete programs in which school participation was voluntary, but here the minimum
condition requirements apply to the underlying core functions of the community colleges,
functions compelled by state law. As we have explained, California community colleges
are required to provide specified academic, vocational, and remedial instruction, along
with support services. (Ed. Code, § 66010.4.) The minimum condition requirements
direct the community college districts to take specific steps in fulfilling those legally-
compelled core mission functions, including requirements pertaining to scholarship,
degrees, courses, campuses, counseling, and curriculum.
Kern is also different because the costs associated with the requirements in that
case were “modest.” (Kern, supra, 30 Cal.4th at p. 747) Here, however, the record does
9
not establish that the costs to comply with the minimum conditions would be modest.
Rather, the record shows that the statewide cost estimate for the portion of the test claims
the Commission approved is over $27 million annually for fiscal years 2001 through
2012 and the Commission approved reimbursement for less than one-third of the test
claim statutes and regulations, denying reimbursement of costs for all minimum condition
regulations. (Cal. Code Regs., tit. 5, former § 51102, subds. (b), (c).) Moreover,
although the claimants in Kern had experienced “a relatively minor diminution of
program funds available to them for substantive program purposes” (Kern, at p. 748),
here a community college risks loss of all state aid if it does not comply with the
minimum condition regulations. (Cal. Code Regs., tit. 5, former § 51102, subds. (b), (c).)
The Commission suggests the minimum conditions are not legally compelled
because the community colleges are free to decline state aid. But that argument is
inconsistent with the statutory scheme and the appellate record. Education is a
governmental function under California law. (Long Beach Unified School Dist. v. State
of California (1990) 225 Cal.App.3d 155, 172.) Consistent with that function, the state
legislature declared that “California must support an educational system that prepares all
Californians for responsible citizenship and meaningful careers in a multicultural
society[,]” determining that this requires a commitment “to make high-quality education
available and affordable for every Californian.” (Ed. Code, § 66002, subd. (f)(3).)
To accomplish those goals, the Legislature found that California’s system of higher
education would need to expand. (Id., subd. (f)(4).) That system includes not only the
campuses of the University of California and the California State University system, but
also the California community colleges. (Ed. Code, §§ 66010, subd. (a), 66010.4,
subd. (a), 66700, 100450, subd. (b).) Under state law, those institutions “share goals
designed to provide educational opportunity and success to the broadest possible range”
of California citizens. (Ed. Code, § 66010.2.) And as provided in our state constitution,
no college within the state’s public school system shall be transferred from the public
10
school system or placed under the jurisdiction of any other authority. (Cal. Const.,
art. IX, § 6.) Consistent with those laws and legislative determinations, the state provides
funding to the California community college districts to permit them to carry out their
mission. (See Ed. Code, § 14000 [“The system of public school support should assure
that state, local, and other funds are adequate for the support of a realistic funding
level.”].) “Since 1933, our [state] Constitution has provided that from state revenues
there shall first be set apart the moneys to be applied by the state for the support of the
public school system and institutions of higher education.” (California Teachers Assn. v.
Hayes (1992) 5 Cal.App.4th 1513, 1522; see Cal. Const., art. XVI, § 8.) The Legislature
has declared that the California Constitution requires a specific minimum level of state
General Fund revenues be guaranteed and applied for the support of community college
districts. (Ed. Code, § 41200, subd. (b).) Moreover, as a result of article XIII A of the
state Constitution, the state has assumed a greater share of the responsibility for funding
the public school system. (California Teachers Assn. v. Hayes, at pp. 1526-1528.)
Specifically, in the most recent year for which the appellate record in this case provides
information, more than half of California community college funding came from the state
general fund. In that same year, other funding sources, including federal funds, local
funds, and student fees, provided significantly less support. Like public school districts
in general, community college districts are dependent on state aid. (See Wells v.
One2One Learning Foundation (2006) 39 Cal.4th 1164, 1196.)
In Kern, the California Supreme Court further determined, as to one of the subject
programs, that even if participation was legally compelled, the modest costs of the notice
and posting requirements could be absorbed by the school districts because the “state’s
provision of program funding” satisfied “in advance” any requirement for
reimbursement. (Kern, supra, 30 Cal.4th at p. 747; see id., at p. 731.) But in this case,
the appellate record does not establish that the costs to comply with the minimum
11
condition regulations are clearly satisfied “in advance” by existing state aid (except as we
specifically discuss, post).
The trial court went into much greater depth discussing whether the minimum
condition regulations amounted to “practical” compulsion, ultimately concluding that
practical compulsion had not been shown. But because we conclude the programs
underlying the minimum condition regulations were legally compelled, we need not
consider whether the community college districts faced practical compulsion based on
severe and certain penalties. (Cf. Kern, supra, 30 Cal.4th at pp. 731, 749-751.)
C
Although we have determined that the minimum condition regulations impose
requirements on a community college district in connection with underlying programs
legally compelled by the state, that does not end our analysis, because the Commission
already identified some items for reimbursement, other items are not before us, and for
some items it has not been established that remand is otherwise appropriate.
Accordingly, we examine former regulations 51002 through 51027 in more detail to
address which specific regulations require remand for further consideration by the
Commission.
1. Cal. Code Regs., tit. 5, former § 51002 - Standards of Scholarship
This regulation provided, “The governing board of a community college district
shall: [¶] (a) adopt regulations consistent with the standards of scholarship contained in
[former regulation 55750 et seq.]; [¶] (b) file a copy of its regulations, and any
amendments thereto, with the Chancellor; and [¶] (c) substantially comply with its
regulations and the regulations of the [state] Board of Governors pertaining to standards
of scholarship.”
The Commission says it approved reimbursement for activities required by former
regulation 51002 based on mandates imposed by former regulation 55750 et seq. It is
true that the Commission approved reimbursement of a number of costs associated with
12
former regulation 55750 et seq., relating to standards of scholarship. The Community
Colleges’ appellate reply brief does not dispute that the Commission approved
reimbursement for those costs and does not identify former regulation 51002 costs for
which subvention has not been approved. Accordingly, we reject the claim with regard to
former regulation 51002.
2. Cal. Code Regs., tit. 5, former § 51004 - Degrees and Certificates
This regulation provided, “The governing board of a community college district
shall: [¶] (a) adopt regulations consistent with regulations contained in [former
regulation 55800 et seq.]; [¶] (b) file a copy of its regulations and any amendments
thereto with the Chancellor; and [¶] (c) substantially comply with its regulations and the
regulations of the [state] Board of Governors pertaining to degrees and certificates.”
The Commission says it approved reimbursement of costs associated with former
regulation 51004. The Commission approved reimbursement of costs associated with
degrees and certificates. We reject the claim by the Community Colleges because their
appellate reply brief does not identify former regulation 51004 costs for which the
Commission has not approved reimbursement.
3. Cal. Code Regs., tit. 5, former § 51006 - Open Courses
This regulation required the governing board of a community college district to
adopt a policy relating to open access to qualified persons, publish the policy, and file a
copy of the policy with the Chancellor. The Commission denied the claim based on this
regulation because it found the regulation did not impose a state mandated activity. But
the regulatory requirement to adopt an open-access policy is connected to an underlying
legally-compelled community college mission. (Ed. Code, § 66010.2, subd. (a)
[community colleges shall provide access to education to all qualified Californians].)
Given our conclusion, the parties agree the matter should be remanded back to the
Commission for further determination. We will direct the trial court to remand this
portion of the claim to the Commission.
13
4. Cal. Code Regs., tit. 5, § 51008 - Comprehensive Plan
This regulation provides, “(a) The governing board of a community college district
shall establish policies for, and approve, comprehensive or master plans which include
academic master plans and long range master plans for facilities. The content of such
plans shall be locally determined, except that the plans shall also address planning
requirements specified by the [state] Board of Governors. [¶] (b) Such plans, as well as
any annual updates or changes to such plans, shall be submitted to the Chancellor’s
Office for review and approval in accordance with Section 70901(b)(9) of the Education
Code and with regulations of the [state] Board of Governors pertaining to such plans.”
Santa Monica Community College District sought reimbursement for capital
construction master plan costs incurred under Education Code sections 81820, 81821 and
81823. The Commission severed that portion of Santa Monica Community College
District’s test claim and did not consider it as part of the consolidated Minimum
Conditions for State Aid test claim. The petition for writ of mandate underlying the
judgment that the Community Colleges challenge here relates only to the Minimum
Conditions for State Aid test claim. Thus, the Commission’s decision on the test claim
for capital construction master plan costs is not before us and we do not consider whether
subvention is required with regard to capital construction master plan costs.
Santa Monica Community College District also sought subvention for costs
associated with educational master plans, in particular former regulations 55401 through
55404. The Commission denied the claim on the ground that the test claim regulations
existed prior to 1975.
Subvention is limited to increased costs a community college district is required to
incur as a result of a statute enacted on or after January 1, 1975, or a regulation issued by
a state agency or board implementing a statute enacted on or after January 1, 1975. (Gov.
Code, §§ 17514, 17516, 17519) The state is not required to provide subvention of funds
for expenditures pursuant to a pre-1975 statute. (Los Angeles Unified School Dist. v.
14
State of California (1991) 229 Cal.App.3d 552, 555.) Although a nonsubstantive
amendment was made in 1977 to former regulation 55405, replacing the pronoun “he”
with “the Chancellor,” as acknowledged in the test claim filed by Santa Monica
Community College District, former regulations 55401 through 55405 remained
substantively the same since 1971.
Nevertheless, the Community Colleges contend the addition of former regulations
51000 and 51008 after 1975 made the consequences of noncompliance with the prior
planning requirements certain and severe, thereby creating a new and higher level of
mandated activity. But the duty of the governing board of a community college district to
establish policies for and approve current and long-range academic plans and submit
master plans to the board of governors for review and approval, currently found in
Education Code section 70902, subdivision (b)(1), has existed since at least 1969.
(Stats. 1969, ch. 1026, § 3 [Ed. Code, former § 1010.3].) Accordingly, subvention by the
state is not required for the regulations relating to educational master plans because they
implemented a pre-1975 statute, and we reject the appellate claim relating to regulation
51008. We also reject the perfunctory claims made based on the same timing argument
with regard to regulations 55005, 55100, 55130, 55150, 55800.5, 55805, 55806 and
55809, relating to curriculum and instruction. (Cal. Rules of Court, rule 8.204(a)(1)(B);
Freeman, supra, 8 Cal.4th at p. 482, fn. 2.)
5. Cal. Code Regs., tit. 5, former § 51010 - Equal Employment Opportunity
This regulation required the governing board of a community college district to
take certain actions with regard to equal employment opportunity. The Commission
severed the portion of the consolidated Minimum Conditions for State Aid test claim
relating to equal employment opportunity programs for consideration with the
Discrimination Complaint Procedures test claim. The decision in the Discrimination
Complaint Procedures test claim is not before us.
15
6. Cal. Code Regs., tit. 5, § 51012 - Student Fees
This regulation provides, “The governing board of a community college district
may only establish such mandatory student fees as it is expressly authorized to establish
by law.”
Citing regulation 51012, Santa Monica Community College District sought
reimbursement of costs to establish and implement policies and procedures to ensure that
the collection of student fees complied with Education Code former sections 76300
through 76395. Education Code former section 76300 described the calculation of the
fee the governing board of each community college must charge each student, who was
exempt from the fee, and who may be exempt from the fee. (Stats. 2002, ch. 450, § 3.)
Education Code former section 76350 et seq. authorized fees which the governing board
of a community college district may charge certain students for items such as parking
services and prohibited the establishment of a fee for certain students. (Stats. 1993, ch. 8,
§ 34.)
The Commission concluded that regulation 51012 did not impose any state
mandated activities because it did not require a community college district to do anything
and the claimants did not plead any statutes or regulations requiring the establishment of
any student fees. We agree with the Commission that regulation 51012 does not require
the community college districts to take any particular action, it merely references what is
already authorized by law.
However, the Commission failed to consider the Santa Monica Community
College District claim that subvention was required for costs associated with Education
Code former sections 76300 through 76395. The Commission must decide that issue in
the first instance. (Gov. Code, § 17551, subd. (a); Lucia Mar Unified School Dist. v.
Honig (1988) 44 Cal.3d 830, 837 (Lucia Mar).) The Commission points out that Los
Rios Community College District filed a test claim in 2000 relating to Education Code
former section 76300 and its implementing regulations (Cal. Code Regs., tit. 5, former
16
§§ 58500-58508) and the Commission approved reimbursement of some costs associated
with Education Code former section 76300 and former regulations 58501, 58502 and
58503.3 But the Commission does not assert that it approved the claimants’ request for
reimbursement of Education Code former section 76300 costs in this case. In addition,
the 2000 test claim did not decide whether subvention is required for Education Code
former section 76350 et seq. costs. We will direct that these portions of the claim be
remanded to the Commission.
7. Cal. Code Regs., tit. 5, former § 51014 - Approval of New Colleges and
Educational Centers
This regulation provided, “(a) The governing board of a community college
district planning the formation of a new college or educational center shall obtain
approval for such college or educational center from the [state] Board of Governors.
Approval shall be obtained before classes begin at the new college or educational center.
[¶] (b) The provisions of [former regulation 55825 et seq.] shall govern the approval of
new colleges and educational centers.”
The Commission denied the claim for subvention based on former regulation
51014, noting that the regulations referenced therein, former regulations 55825 through
55831, did not impose state mandated activities because the decision to create a new
college or education center, which triggered any activities required by those regulations,
was left to the discretion of a community college district.
3 We grant the request for judicial notice of the statement of decision in that matter.
(Evid. Code, §§ 452, subd. (c), 459; Arce v. Kaiser Foundation Health Plan, Inc. (2010)
181 Cal.App.4th 471, 484 [taking judicial notice of decision by the Department of
Managed Health Care, but not the truth of factual findings made in that decision]; Wise v.
Pacific Gas & Electric Co. (1999) 77 Cal.App.4th 287, 297 [taking judicial notice of
decision by Public Utilities Commission].) We otherwise deny the Commission’s request
for judicial notice.
17
But the Legislature has declared that California’s system of higher education
would need to expand (Ed. Code, § 66002, subd. (f)(4)), that it is in the state’s interest to
provide assistance to community colleges for the construction of facilities (Ed. Code,
§ 81800, subd. (b)), that California’s economic and social prosperity relies on a higher
education system that keeps pace with California’s growth (Ed. Code, §§ 100110,
subd. (a), 100450, subd. (a)), and that there is a need to provide adequate community
college facilities “to accommodate community college students resulting from growth in
population and from legislative policies expressed through implementation of the Master
Plan for Higher Education.” (Ed. Code, § 81800, subd. (b), see id., § 100450.) The
Legislature also determined that California community colleges can “help fill the gaps” in
the higher education system by granting baccalaureate degrees in certain areas to “meet a
growing demand for a skilled workforce.” (Stats. 2014, ch. 747, § 1.) Accordingly, the
Legislature has provided aid to California community colleges to meet their capital outlay
financing needs. (See, e.g., Ed. Code, §§ 100110, 100120, 100450, 100457, 100460,
100510.) Former regulation 51014 required the governing board of a community college
district to comply with the standards in former regulations 55829 through 55831 and to
obtain the Board of Governor’s approval when planning a new college or education
center. (Cal. Code Regs., tit. 5, former §§ 51014, 55825.) The former regulation
required that a plan for a new college or educational center be directed to the educational
needs of the community, that it consider circumstances such as unmet need and labor
market requirements, and that it identify the most effective and equitable delivery system
for programs and services. (Cal. Code Regs., tit. 5, former §§ 55829, 55830, 55831.)
Former regulations 51014 and 55825 et seq. imposed requirements in connection
with a community college’s underlying legally-compelled mission to address a growing
student population. We will direct that this portion of the claim be remanded to the
Commission for further determination.
18
8. Cal. Code Regs., tit. 5, former § 51016 - Accreditation
This regulation provided, “Each community college within a district shall be an
accredited institution. The Accrediting Commission for Community and Junior Colleges
[(ACCJC)] shall determine accreditation.”
The Commission denied the test claim based on former regulation 51016. For
reasons we have explained, this minimum condition regulation imposed requirements in
connection with a community college’s underlying legally-compelled mission to provide
quality education. (Ed. Code, §§ 66010.2, subd. (b) [community colleges shall provide
quality teaching and programs], 66050 [community colleges must recognize that quality
teaching is the core ingredient of the undergraduate educational experience], 66052
[encouraging policies that enhance the quality of teaching in higher education], 66071
[encouraging institutions of higher education to develop and use mechanisms to assess
teaching and student learning and the achievement of state higher education goals for
quality].) We will direct the trial court to remand this portion of the claim to the
Commission for further determination.
Santa Monica Community College District also sought reimbursement for costs to
establish and implement procedures to comply with the accreditation standards and
requirements in the Handbook of Accreditation and Policy Manual, published by ACCJC.
The Commission denied the claim because it said ACCJC was not a government agency
and the Handbook of Accreditation and Policy Manual was not an executive order. The
Community Colleges urge that the Commission erred in denying the claim.
While the Handbook of Accreditation and Policy Manual is not a statute or
regulation, by requiring community colleges to be accredited by ACCJC, former
regulation 51016 imposed on the Community Colleges the responsibility to satisfy
requirements for accreditation established by ACCJC. It appears undisputed that those
requirements were set forth in ACCJC’s Handbook of Accreditation and Policy Manual.
Because the state required community colleges to comply with the accreditation
19
requirements and standards established by ACCJC, we will direct the trial court to
remand this portion of the claim to the Commission for further determination.
9. Cal. Code Regs., tit. 5, § 51018 - Counseling Programs
This regulation provides, “(a) The governing board of a community college district
shall adopt regulations and procedures consistent with the provisions of this [regulation].
A copy of district regulations and procedures, as well as any amendments, shall be filed
with the Chancellor’s Office. [¶] (b) The governing board of a community college
district shall provide and publicize an organized and functioning counseling program in
each college within the district.” The regulation lists the requirements for counseling
programs and states that certain counseling services shall be provided to certain students.
The Commission says it approved for reimbursement costs associated with
complying with Education Code section 66736, including costs for the adoption of
policies and procedures relating to counseling services for transfer students. Education
Code section 66736 provides that each community college district governing board must
ensure that its college or colleges maintain student transfer counseling centers or other
counseling and student services designed and implemented to affirmatively seek out,
counsel, advise and monitor the progress of potential and identified community college
transfer students. However, the requirements of regulation 51018 are not limited to
counseling programs for transfer students. As we explained, state law requires a
community college to provide support services to help students succeed at the
postsecondary level (Ed. Code, § 66010.4, subd. (a)(2)(A)), and regulation 51018
requires a community college to provide a counseling program, including academic,
career and personal counseling. Accordingly, regulation 51018 imposed requirements
pertaining to legally-compelled underlying programs. We will direct the trial court to
remand this portion of the claim to the Commission for further determination.
20
10. Cal. Code Regs., tit. 5, § 51020 - Objectives
This regulation provides, “Each community college shall have stated objectives
for its instructional program and for the functions which it undertakes to perform.”
The Commission denied the test claim based on regulation 51020. For reasons we
have explained, this minimum condition regulation imposed requirements in connection
with a community college’s underlying legally-compelled mission of instruction. We
will direct the trial court to remand this portion of the claim to the Commission for
further determination.
11. Cal. Code Regs., tit. 5, § 51021 - Curriculum
This regulation provides, “Each community college shall establish such programs
of education and courses as will permit the realization of the objectives and functions of
the community college. All courses shall be approved by the Chancellor in the manner
provided in [former regulation 55000 et seq.].”
The Commission approved reimbursement of costs pursuant to Education Code
section 70902, subdivision (b)(2), which requires the governing board of each community
college district to establish policies for and approve courses of instruction and
educational programs. We reject the appellate claim with regard to regulation 51021
because it is undisputed that the Commission already approved reimbursement for costs
related to that regulation.
12. Cal. Code Regs., tit. 5, former § 51022 - Instructional Programs
This regulation provided, “(a) The governing board of each community college
district shall, no later than July 1, 1984, develop, file with the Chancellor, and carry out
its policies for the establishment, modification, or discontinuance of courses or programs.
Such policies shall incorporate statutory responsibilities regarding vocational or
occupational training program review as specified in section 78016 of the Education
Code. [¶] (b) The governing board of each community college district shall, no later
than July 1, 1984, develop, file with the Chancellor, and carry out its policies and
21
procedures to provide that its courses and programs are articulated with proximate four-
year colleges and high schools.”
The Commission says it approved for reimbursement activities relating to former
regulation 51022, but denied activities relating to former regulation 55753.5 because
former regulation 55753.5 did not require the governing board of a community college
district to do anything. Former regulation 55753.5, subdivision (b) provided that the
governing board of a community college district may adopt policies to permit articulated
high school courses to be applied to community college requirements. Because the
Community Colleges do not establish that any costs related to former regulation 51022
have not been approved for reimbursement and do not dispute that costs associated with
former regulation 55753.5 are not subject to subvention by the state, we reject the claim
with regard to those regulations.
13. Cal. Code Regs., tit. 5, former § 51023 (Faculty) and Cal. Code Regs.,
tit. 5, §§ 51023.5 (Staff) and 51023.7 (Students) - Participation in Governance
Former regulation 51023 provided, “The governing board of a community college
district shall: [¶] (a) adopt a policy statement on academic freedom which shall be made
available to faculty and be filed with the Chancellor; [¶] (b) adopt procedures which are
consistent with the provisions of [regulations] 53200-53206,[4] regarding the role of
academic senates and faculty councils and are filed with the Chancellor; [¶] (c)
substantially comply with district adopted policy and procedures adopted pursuant to
Subsections (a) and (b).”
4 Costs associated with former regulations 53000 through 53034, relating to equal
employment opportunity programs, were severed from the Minimum Conditions for State
Aid test claim and were to be decided as part of the Discrimination Complaint
Procedures test claim.
22
Regulation 51023.5 provides, “(a) The governing board of a community college
district shall adopt policies and procedures that provide district and college staff the
opportunity to participate effectively in district and college governance.” The regulation
describes what such policies and procedures must include and requires staff participation
in the formulation and development of the policies and procedures.
In addition, regulation 51023.7 provides, “(a) The governing board of a
community college district shall adopt policies and procedures that provide students the
opportunity to participate effectively in district and college governance.” The regulation
requires that students be provided an opportunity to participate in the formulation and
development of district and college policies and procedures that have significant effect on
students.
The Commission concluded that the following activities constituted a state
mandated new program or higher level of service: (1) establishing procedures pursuant
to Education Code section 70902, subdivision (b)(7) “to ensure faculty, staff, and
students the opportunity to express their opinions at the campus level, to ensure that these
opinions are given every reasonable consideration, and to ensure the right of academic
senates to assume primary responsibility for making recommendations in the areas of
curriculum and academic standards” and (2) participating in the consultation process
established by the state Board of Governors for the development and review of policy
proposals pursuant to Education Code section 70901, subdivision (e). The Community
Colleges do not establish that any costs related to former regulation 51023 or regulations
51023.5 or 51023.7 were not approved for reimbursement. Accordingly, we reject the
claim with regard to those regulations.
14. Cal. Code Regs., tit. 5, former § 51024 - Matriculation Services
This regulation provided, “The governing board of each community college
district shall: [¶] (a) adopt and submit to the Chancellor a matriculation plan as required
under [former regulation] 55510; [¶] (b) evaluate its matriculation program and
23
participate in statewide evaluation activities as required under [former regulation]
55512(c); [¶] (c) provide matriculation services to its students in accordance with [former
regulations] 55520 and 55521; [¶] (d) establish procedures for waivers and appeals in
connection with its matriculation program in a manner consistent with [former
regulation] 55534; and [¶] (e) substantially comply with all other provisions of [former
regulation 55500 et seq.].” Former regulations 55510, 55512, 55520 and 55534 set forth
various requirements for community college districts.
Santa Monica Community College District sought subvention for costs of
complying with the Education Code former sections 78210 through 78218 and former
regulations 51024 and 55500 through 55534. The state Board of Governors adopted
former regulations 51024 and 55500 et seq. pursuant, in part, to Education Code former
sections 78210 through 78218, known as the Seymour-Campbell Matriculation Act of
1986. (Gov. Code, § 11349, subds. (b), (e); Notes to Cal. Code Regs., tit. 5, former
§§ 51024, 55500-55534.) The Commission denied the claim. For reasons we have
explained, former regulation 51024 imposed requirements on the Community Colleges
pertaining to underlying legally-compelled programs. Nevertheless, the Seymour-
Campbell Matriculation Act of 1986 was operative only if funds were specifically
appropriated for purposes of that Act. (Stats. 1986, ch. 1467, § 1 [Ed. Code, former
§ 78218].) Education Code former section 78211.5 provided that any college or district
receiving funding under the Act was bound to carry out its provisions only for the period
during which funding was received pursuant to the Act. (Stats. 1986, ch. 1467, § 1.)
Former regulation 55500, subdivision (b) provided that the requirements of former
regulation 55500 et seq. applied only to districts which received funds pursuant to
Education Code former section 78216 for the period of time during which such funds
were received. Thus, the state was obligated to provide funding for any activities it
required a community college district to undertake pursuant to the Seymour-Campbell
24
Matriculation Act of 1986, and the Community Colleges do not show that further
reimbursement is required under Section 6. (Kern, supra, 30 Cal.4th at pp. 746-748.)
15. Cal. Code Regs., tit. 5, former § 51025 - Full-Time/Part-Time Faculty
This regulation provided, “This [regulation] relates to and should be read in
conjunction with [regulation 53300[et seq.]. [¶] (a) If a district’s full-time faculty
percentage . . . is less than 75 percent, the following shall apply: [¶] (1) For growth
revenues received related to increases in credit FTES . . . , the district shall increase the
base full-time faculty obligation . . . by the Fall term of the succeeding fiscal year . . . .
[¶] . . . [¶] (2) Districts which . . . had a full-time faculty percentage of 67 percent or
greater, but less than 75 percent shall apply up to 33 percent of their program
improvement allocation . . . as necessary to reach the 75 percent standard . . . . [¶] (3)
Districts which . . . had a full-time faculty percentage of less than 67 percent shall apply
up to 40 percent of their program improvement allocation . . . as necessary to reach the 75
percent standard . . . . [¶] (4) For program improvement funds identified in Subsection
(a)(2) or (3), as appropriate, the district shall increase the number of full-time faculty, by
the Fall term of the succeeding fiscal year, by the quotient of the applicable program
improvement funds divided by the statewide average replacement cost, rounded down to
the nearest whole number. [¶] . . . [¶] (c) On or before January 31 of each year, the
Chancellor shall determine . . . the extent to which each district, by the Fall term of that
year, has maintained or hired the number of additional full-time faculty determined
pursuant to Subsection (a) for the prior fiscal year. To the extent that the number of full-
time faculty has not been maintained or additional full-time faculty have not been
retained, the Chancellor shall reduce the district’s revenue for the current fiscal year by
an amount equal to the average replacement cost for the prior fiscal year times the
deficiency in the number of full-time faculty. To the extent a district hires the additional
full-time faculty in subsequent fiscal years, the reductions made to the district’s revenue
shall be restored. . . .”
25
Education Code section 87482.7, subdivision (a) requires the board of governors
to adopt regulations that establish minimum standards regarding the percentage of hours
of credit instruction that shall be taught by full-time instructors, pursuant to Education
Code section 70901, subdivision (b)(6). The state Board of Governors adopted former
regulation 51025 pursuant, in part, to Education Code sections 84750 and 87482.7.5
(Gov. Code, § 11349, subds. (b), (e); Note to Cal. Code Regs., tit. 5, former § 51025.)
Although the trial court indicated otherwise, former regulation 51025 required a
community college district to maintain a full-time faculty percentage of 75 percent. This
is established by the regulatory scheme. Regulation 53300 says regulation 51025
concerned “the proportion of full-time and part-time faculty to be employed by
community colleges.” Regulations 53312 and 53314 also indicate that the 75 percent
standard is mandatory. Regulation 53312, subdivision (a) states, “The Chancellor shall
compute the number of full-time faculty which each district is to secure in accordance
with [regulations] 51025 and 53308 . . . .” Regulation 53314 provides, “By the Spring
term of each year, the Chancellor shall report to districts the estimated number of full-
time faculty each district must secure by the following Fall term . . . .” Failure to comply
with the 75 percent standard resulted in reduction of a community college district’s
revenue until compliance is achieved. (Cal. Code Regs., tit. 5, former § 51025,
subd. (c).)
5 The Commission cites to Education Code section 87482.6. However, former
regulation 51025 was not adopted pursuant to that statute. (Note to Cal. Code Regs.,
tit. 5, former § 51025.) Education Code section 87482.6, subdivision (a) provides that a
community college district which does not meet the 75 percent standard shall apply a
percentage of its program improvement allocation as necessary to reach the 75 percent
standard. And if the district “chooses instead not to improve its percentage, the board of
governors shall withhold” a percentage of the district’s program improvement allocation.
Former regulation 51025 did not contain the “chooses . . . not to improve its percentage”
language found in Education Code section 87482.6.
26
The Commission denied the test claim based on former regulation 51025. For the
reasons we have explained, the regulation imposed requirements pertaining to underlying
legally-compelled programs for instruction. We will direct the trial court to remand this
portion of the claim to the Commission for further determination.
16. Cal. Code Regs., tit. 5, former § 51026 - Student Equity
This regulation provided, “In accordance with the provisions of [former
regulation] 54220, the governing board of a community college district shall adopt a
student equity plan.”
The Commission decided the claim relating to former regulation 51026 in the
Discrimination Complaint Procedures test claim. The decision in the Discrimination
Complaint Procedures test claim is not before us.
17. Cal. Code Regs., tit. 5, § 51027 - Transfer Centers: Minimum Program
Standards; Education Code sections 66738, 66740, 66741 and 66743
This regulation provides, “(a) The governing board of each community college
district shall recognize transfer as one of its primary missions, and shall place priority
emphasis on the preparation and transfer of underrepresented students, including African-
American, Chicano/Latino, American Indian, disabled, low-income and other students
historically and currently underrepresented in the transfer process. [¶] (b) Each
community college district governing board shall direct the development and adoption of
a transfer center plan describing the activities of the transfer center and the services to be
provided to students, incorporating the provisions established in the standards outlined
below.” The regulation sets forth the requirements for transfer center plans, services
which community college districts must provide, and other duties in relation to transfers.
Santa Monica Community College District sought reimbursement for costs
incurred pursuant to Education Code sections 66720 through 66723, 66730 through
66744, and 71027, along with regulation 51027. The Commission rejected the claim in
part, but approved reimbursement for a number of costs relating to transfer centers. The
27
Community Colleges do not identify any unapproved costs requiring subvention in
relation to regulation 51027. Accordingly, we reject their claim with regard to regulation
51027. The Community Colleges contend instead that the Commission erred in
concluding that the requirements relating to formal systemwide articulation agreements
and transfer agreement programs in Education Code section 66738 were not state
mandates.
Education Code section 66738 provides, “(a) The governing board of each public
postsecondary education segment shall be accountable for the development and
implementation of formal systemwide articulation agreements and transfer agreement
programs, including those for general education or a transfer core curriculum, and other
appropriate procedures to support and enhance the transfer function. [¶] (b) The
elements in a comprehensive transfer system shall include, but not be limited to, the
following: [¶] (1) Enrollment and resource planning; intersegmental faculty curricular
efforts. [¶] (2) Coordinated counseling. [¶] (3) Financial aid and transfer services. [¶]
(4) Transfer articulation agreements and programs. [¶] (5) Specific efforts to improve
diversity. [¶] (6) Early outreach activities. [¶] (7) Expansion of current practices
relating to concurrent enrollment of community college students in appropriate university
courses. [¶] (8) Centers. [¶] (c) The governing board of each segment shall expand
existing practices related to concurrent enrollment, in which community college students
are provided the opportunity to take courses at University of California and California
State University campuses, as space is available; and to expand opportunities for
potential transfer students to participate in activities that familiarize them with the
university campus.”
The Commission concluded that Education Code section 66738, subdivisions (a)
and (c) imposed state mandated activities and approved for reimbursement costs
associated with those subdivisions, but not subdivision (b). The Commission reasoned
that subdivision (b) costs were not reimbursable because community college districts are
28
not required to develop a comprehensive transfer system. We agree with the
Commission.
Certainly, the law requires community college districts to maintain an effective
transfer system. Education Code section 66738 was enacted as part of Senate Bill
No. 121 (1991-1992 Reg. Sess.) in 1991. In enacting the statute, the Legislature declared
that “[e]ach community college district should ensure that its colleges have full
development of a viable and efficient transfer system which includes transfer agreement
programs, centers, and internal coordination of all counseling and student service efforts
aimed at ensuring adequate student information, student assistance, and monitoring of
progress toward each student’s goal.” (Stats.1991, ch. 1188, § 1.) Pursuant to Education
Code section 66730 et seq., California community colleges are part of the state’s mission
of maintaining “a healthy and expanded student transfer system.” (Ed. Code, § 66730,
subd. (a); see id., §§66731-66738, 66739.6.) The governing boards of the University of
California, California State University and California community colleges are tasked to
“design, adopt, and implement policies intended to facilitate successful movement of
students from community colleges through the University of California and the California
State University.” (Id., § 66732.) Those segments of the public higher education system
“are expected to develop new programs of outreach, recruitment, and cooperation . . . to
facilitate the successful transfer of students between the community colleges and the
universities.” (Id., § 66737.)
Nevertheless, the Community Colleges have not identified a requirement that they
adopt any of the specific elements articulated in Education Code section 66738,
subdivision (b). Accordingly, we reject this portion of the argument by the Community
Colleges.
The Community Colleges also argue the Commission erred in concluding that
Education Code section 66740 does not impose any requirements on community college
districts.
29
Because the Commission addressed Education Code section 66740 by paragraphs,
we insert paragraph numbers in our quote of the section for ease of reference. That
section provides, “[1] Each department, school, and major in the University of California
and California State University shall develop, in conjunction with community college
faculty in appropriate and associated departments, discipline-specific articulation
agreements and transfer program agreements for those majors that have lower division
prerequisites. Faculty from the community colleges and university campuses shall
participate in discipline-specific curriculum development to coordinate course content
and expected levels of student competency. [¶] [2] Where specific majors are impacted
or over-subscribed, the prescribed course of study and minimum grade point average
required for consideration for upper division admission to all of these majors shall be
made readily available to community college counselors, faculty, and students on an
annual basis. In cases where the prescribed course of study is altered by the university
department, notice of the modification shall be communicated to appropriate community
college faculty and counselors at least one year prior to the deadline for application to
that major and implementation by the department responsible for teaching that major. [¶]
[3] Community college districts, in conjunction with the California State University and
the University of California, shall develop discipline-based agreements with as many
campuses of the two university segments as feasible, and no fewer than three University
of California campuses and five California State University campuses. The development
of these agreements shall be the mutual responsibility of all three segments, and no one
segment should bear the organizational or financial responsibility for accomplishing these
goals. [¶] [4] The Chancellor of the California Community Colleges and the President
of the University of California shall begin the process of setting priorities to determine
which community colleges will receive first attention for the development of agreements.
Criteria for priority determination shall include, but not be limited to, the percentage and
number of students from economically disadvantaged families and underrepresented
30
racial and ethnic minorities, and community colleges which traditionally have not
transferred many students to the University of California. The priority list shall be
completed by March 1, 1992. These considerations shall not be used in any way to
displace current agreements between any community college and the University of
California or the California State University. [¶] [5] The Chancellor of the California
Community Colleges and the Chancellor of the California State University system shall
begin the process of setting priorities to determine which community colleges will
receive first attention for the development of agreements. Criteria for priority
determination shall include, but not be limited to, the percentage and number of students
from economically disadvantaged families and underrepresented racial and ethnic
minorities, and community colleges which traditionally have not transferred many
students to California State Universities. The priority list shall be completed by March 1,
1992. These considerations shall not be used in any way to displace current agreements
between any community college and the University of California or the California State
University.”6 (Ed. Code, § 66740.)
The Commission concluded that paragraphs 2, 4 and 5 of Education Code
section 66740 does not impose any state mandated activities on California community
college districts. We agree with the Commission. Paragraph 2 does not designate a
particular entity to provide the information referenced in that paragraph, and it does not
say how such information should be communicated. While community colleges might be
in a better position to communicate with their counselors, faculty and students, the
universities are arguably in a better position to know which majors are impacted or over-
subscribed, the prescribed course of study and minimum grade point average required for
consideration for upper division admission, whether the prescribed course of study is
6 The Commission’s statement of decision incorrectly split paragraph 3 into two
paragraphs and stated that Education Code section 66740 had six paragraphs.
31
altered by the university department, and the deadline for application to that major and
implementation by the department responsible for teaching that major. Paragraphs 4 and
5 do not require any action by community college districts.
The Community Colleges further argue that the state must reimburse them for
costs incurred as a result of Education Code sections 66741 and 66743.
Education Code section 66741 provides, “As a result of systemwide and
interinstitutional agreements, each community college student shall be assured of the
opportunity to enter into a transfer agreement program enabling a student to receive high
priority consideration, attain equivalent special treatment, or enter into a contract when
applying for university admission at the advanced standing level. It is recognized that
eligibility for transfer agreement programs will require completion of certain
requirements as defined in interinstitutional agreements. It is also recognized that access
to majors of choice will, in most cases, require completion of additional requirements,
such as specialized coursework and attainment of a specialized grade point average. [¶]
Transfer agreement programs also shall carry high priority access to majors of choice.
The University of California and the California State University shall require that
continuing undergraduate students and community college transfer students are assessed
against a common set of criteria for upper division standing to a specific major.
However, generally speaking, access to these programs shall require completion of
specialized coursework and attainment of a grade point average above the minimums
defined in general admission requirements, such as those used in supplementary
admission criteria for impacted or over-subscribed programs. [¶] Alternatively, students
may also, by meeting the University of California or California State University
requirements for admission at the advanced standing level, simply wish to apply as
required. All students meeting these admission requirements shall be guaranteed a place
somewhere in the University of California or California State University system, as
appropriate.”
32
Education Code section 66743 asks the California Postsecondary Education
Commission to prepare “reports to the Governor and the Legislature on the status of
transfer policies and programs, the diligence of each segment’s board, and the
effectiveness of these programs in meeting the [S]tate’s goals for transfer.” The statute
describes the information such reports must include.
Education Code sections 66741 and 66743 do not require community college
districts to engage in any activity. Accordingly, the Community Colleges are not entitled
to subvention based on those statutes.
II
The Community Colleges further argue that the Commission erred in concluding
that other test claim regulations did not impose state mandates for which subvention by
the state is required.
1. Certificates of Achievement
Santa Monica Community College District sought reimbursement of costs
incurred under former regulations 55808 and 55809.
Former regulation 55808 provided, “The governing board of a community college
district shall issue a certificate of achievement to any student whom the governing board
determines has completed successfully any course of study or curriculum for which a
certificate of achievement is offered.” Former regulation 55809 provided, in relevant
part, “The governing board of a community college district shall award the appropriate
diploma, degree or certificate whenever a student has completed all requirements for the
degree, diploma or certificate without regard to the length of time actually taken by the
student to complete such requirements.”
The Commission denied the claim brought by Santa Monica Community College
District, reasoning that although community colleges were required to issue degrees, they
were not required to offer courses that lead to a certificate. The Community Colleges
assert that the Commission’s determination ignored the mandatory language of former
33
regulations 55070 and 55072. But we do not address the arguments relating to former
regulations 55070 and 55072 because the Community Colleges did not identify those
regulations in their test claims. (Gov. Code, §§ 17551, subd. (a), 17553, subd. (b) [test
claim must identify the specific sections of statutes or regulations alleged to contain a
mandate]; Grossmont Union High School Dist. v. State Dept. of Education (2008) 169
Cal.App.4th 869, 884 (Grossmont Union High School Dist.).) Absent those regulations,
the Community Colleges have not established that former regulations 55808 and 55809,
or any other law properly before us, required community college districts to offer courses
leading to certificates of achievement. Accordingly, we reject this portion of the claim.
The Community Colleges further challenge the Commission’s conclusions
regarding pages A-1 to A-54 of the Chancellor’s Program and Course Approval
Handbook. We reject the claim as it was made in a perfunctory fashion without analysis.
(Cal. Rules of Court, rule 8.204(a)(1)(B); Freeman, supra, 8 Cal.4th at p. 482, fn. 2 [a
reviewing court need not discuss claims that are insufficiently developed].)
2. Vocational Education Contracts
Santa Monica Community College District sought reimbursement of costs
incurred pursuant to former regulations 55602, 55602.5, 55603, 55605, 55607, 55620 and
55630, relating to vocational education contracts, which are agreements between a
community college district and a qualified private post-secondary school to provide
vocational instruction to community college students. (Cal. Code Regs., tit. 5, former
§ 55600, subds. (a), (c).) The test claim also cited former regulation 55600, which
contained definitions of terms. The Commission denied the claim, concluding the former
regulations authorized, but did not require, community college districts to enter into
contracts for the provision of vocational skills training.
Former regulation 55602 provided in part, “Any community college district or
districts may contract with a private post secondary school authorized or approved
pursuant to the provisions of chapter 3 (commencing with section 94300) of part 59 of
34
the Education Code and which has been in operation not less than two full calendar years
prior to the effective date of such contract to provide vocational skill training authorized
by the Education Code. Any community college district may contract with an activity
center, work activity center, or sheltered work shop to provide vocational skill training
authorized by the Education Code in any adult education program for substantially
handicapped persons operated pursuant to subdivision (e) of section 41976 of the
Education Code.”
Former regulation 55602.5 provided, “Notwithstanding any provision in the
Education Code to the contrary, the governing board of a community college district and
a proprietary or nonprofit organization, a public entity, or a proprietary or nonprofit
private corporation may enter into a contract for the education of community college
students whose capacity to function is impaired by physical deficiency or injury in
vocational education classes to be conducted for such students by the proprietary or
nonprofit organization, the public entity, or the proprietary or nonprofit private
corporation maintaining the vocational education classes.”
Former regulations 55603 and 55605 set forth further requirements for vocational
education training and contracts. Former regulation 55607 required a community college
district which entered into a contract with a contractor pursuant to Education Code
section 55602 to submit statistical and evaluative reports to the Chancellor. Regulation
55620 describes the conditions used to determine the appropriateness of vocational
education contracts with contractors. And former regulation 55630 listed the provisions
that must be included in a vocational education contract.
Community colleges are required to offer vocational instruction at the lower
division level. (Ed. Code, § 66010.4, subd. (a)(1).) However, under the above
enumerated regulations, a community college district may, but is not required to, contract
with a third party to provide vocational training. (Cal. Code Regs., tit. 5, former
§§ 55602, 55602.5.) Because any increased costs the community college districts
35
incurred as a result of their election to enter into third party contracts pursuant to former
regulation 55600 et seq. was not mandated by the state, subvention is not required.
(Department of Finance v. Commission on State Mandates, supra, 170 Cal.App.4th at
pp. 1358, 1365-1366, 1368, City of Merced, supra, 153 Cal.App.3d at pp. 782-784.)
The Community Colleges further contend that the same analysis applicable to
vocational education contracts requires subvention of funds for costs incurred pursuant to
former regulation 55170, which related to contract education. We reject this
perfunctorily-made claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); Freeman, supra,
8 Cal.4th at p. 482, fn. 2 [a reviewing court need not discuss claims that are asserted
perfunctorily and insufficiently developed].)
3. Distance Learning and Independent Study
Santa Monica Community College District sought reimbursement of costs
incurred under former regulations 55205 through 55219 (distance education) and former
regulations 55300, 55316, 55316.5, 55320 through 55322, 55340 and 55350 (independent
study). The Commission denied the claim on the ground that community college districts
were not required to offer instruction using distance education or independent study. We
agree with the Commission.
While the state encourages distance education, which is instruction in which the
pupil and instructor are in different locations and interact through communications
technology, it did not require California community colleges to offer distance education.
(Ed. Code, §§ 51865, 66940; Cal. Code Regs., tit. 5, former § 55205; Stats. 2000, ch.
467, § 3 [Ed. Code, former § 66941].) A community college district must comply with
the requirements in former regulations 55205 through 55219 only if it elected to offer
distance education. (Cal. Code Regs., tit. 5, former § 55205.)
With regard to independent study, Education Code former section 78310 provided
that the governing board of a community college may establish courses and programs
conducted as independent study, and such courses and programs shall be conducted in
36
accordance with the rules and regulations of the board of governors. (Stats. 1981,
ch. 470, § 163.) That statute was repealed in 1995 (Stats. 1995, ch. 758, § 107) and no
current statute specifically authorizes independent study for California community
colleges. The independent study regulations (Cal. Code Regs., tit. 5, former §§ 55300-
55360) cited Education Code sections 70901 and 70902, which do not contain a mandate
to provide independent study. Former regulation 55300 et seq. stated the requirements
governing independent study courses, but likewise did not require community college
districts to establish or maintain independent study courses or programs. We need not
consider the Community Colleges’ assertion that they were required to use distance
learning or independent study if faculty decided such methodologies were in the best
interests of the student because the Community Colleges do not cite any authority
supporting their contention. (Okasaki v. City of Elk Grove (2012)203 Cal.App.4th 1043,
1045, fn. 1.)
As with the voluntary programs in Kern, the state did not require the Community
Colleges to provide distance education or independent study courses or programs. And
there is no showing that community college districts had no choice but to provide such
courses or programs. Accordingly, any increased costs associated with distance
education or independent study courses or programs were not the result of a state
mandate and are not reimbursable under Section 6. (Kern, supra, 30 Cal.4th at pp. 744-
745, 751-754.)
4. Credit/No-Credit Option for Grading
Santa Monica Community College District sought reimbursement of costs
pursuant to former regulation 55752. The Commission denied the claim on the ground
that former regulation 55752 did not require the governing board of a community college
district to offer courses on a credit/no-credit basis. Citing Education Code section
66010.4, subdivision (a)(2)(B), the Community Colleges argue that former regulation
37
55752 created a state mandate because Education Code section 66010.4 requires
community college districts to provide no-credit courses.
Former regulation 55752 provided, “(a) The governing board of a district
maintaining a community college may by resolution and regulation offer courses in either
or both of the following categories and shall specify in its catalog the category into which
each course falls: [¶] (1) Courses wherein all students are evaluated on a “credit-no
credit” basis. [¶] (2) Courses wherein each student may elect on registration, or no later
than the end of the first 30% of the term, whether the basis of evaluation is to be “credit-
no credit” or a letter grade. [¶] (b) All units earned on a “credit-no credit” basis in
accredited California institutions of higher education or equivalent out-of-state
institutions shall be counted in satisfaction of community college curriculum
requirements. [¶] (c) Units earned on a “credit-no credit” basis shall not be used to
calculate grade point averages. However, units attempted for which “NC” (as defined in
[former regulation] 55758) is recorded shall be considered in probation and dismissal
procedures. [¶] (d) Independent study courses offered in accordance with [former
regulations] 55300-55352 of this part may be graded on a “credit-no credit” basis in
accordance with subdivision (a) of this [regulation]. [¶] (e) When a district offers
courses in which there is a single standard of performance for which unit credit is
assigned, the “CR/NC” grading system shall be used to the exclusion of other grades.
Credit shall be assigned for meeting that standard, no credit for failure to do so.”
Education Code section 66010.4, subdivision (a)(2)(B) requires California
community colleges to provide “adult noncredit education curricula in areas defined as
being in the state’s interest.” However, the claimants did not seek reimbursement
pursuant to that statute. As relevant here, they sought reimbursement pursuant to former
regulation 55752. Former regulation 55752 used the word “may.” It did not require a
community college district to use a credit/no-credit grading system and it did not require
a community college district to provide “adult noncredit education curricula.” The
38
claimants do not cite any test claim statute or regulation requiring community college
districts to offer credit/no-credit courses. We reject this portion of the claim because the
Community Colleges fail to demonstrate that former regulation 55752 created state-
mandated costs.
5. Credit by Examination
The claimants sought reimbursement for costs pursuant to former regulation
55753. The Commission denied the claim, concluding that the regulation did not require
community college districts to offer credit by examination.
Former regulation 55753 provided, in relevant part, “(a) The governing board of
each community college district shall adopt and publish procedures and regulations
pertaining to credit by examination in accordance with the provisions of this Subchapter.
[¶] (b) The governing board may grant credit to any student who satisfactorily passes an
examination approved or conducted by proper authorities of the college.”
We have found no provision of the Education Code requiring community college
districts to provide credit by examination. Former regulation 55753 did not require the
provision of such service. And the Community Colleges do not cite any authority
requiring them to grant credit to a student based on passing an examination. Because
there appears to be no underlying program compelled by the state, we reject the claim for
subvention based on former regulation 55753.
6. Grade Changes, Course Repetition and Renewal without Repetition
The claimants sought subvention pursuant to former regulations 55760, 55761 and
55764. The Commission denied the claim, concluding the regulations did not require
community college districts to permit the repetition of courses or the alleviation of
previously recorded substandard academic performance not reflective of a student’s
demonstrated ability.
Former regulation 55760 provided, “(a) In any course of instruction in a
community college district for which grades are awarded, the instructor of the course
39
shall determine the grade to be awarded each student in accordance with [former
regulation 55758]. The determination of the student’s grade by the instructor shall be
final in the absence of mistake, fraud, bad faith, or incompetency. Procedures for the
correction of grades given in error shall include expunging the incorrect grade from the
record. [¶] (b) The governing board of a district shall adopt and publish procedures and
regulations pertaining to the repetition of courses for which substandard work has been
recorded in accordance with [former regulations] 55761 and 55762. When grade changes
are made in accordance with these [regulations], appropriate annotations of any courses
repeated shall be entered on the student’s permanent academic record in such a manner
that all work remains legible, insuring a true and complete academic history.”
Former regulation 55761 provided, in part, “The governing board of a district
maintaining a community college shall adopt and publish procedures or regulations
pertaining to the repetition of courses for which substandard work has been recorded. . . .
When course repetition occurs, the permanent academic record shall be annotated in such
a manner that all work remains legible, insuring a true and complete academic history.”
Former regulation 55764 provided in part, “The governing board of a district
maintaining a community college shall adopt and publish procedures or regulations
pertaining to the alleviation of previously recorded substandard academic performance,
as defined in [former regulation] 55761, which is not reflective of a student’s
demonstrated ability. Such procedures or regulations shall include a clear statement of
the educational principles upon which they are based, and shall be referred to as
academic renewal regulations.”
Former regulations 55760 and 55764 were adopted in part pursuant to Education
Code section 76224. (Notes to Cal. Code Regs., tit. 5, former §§ 55760, 55764.) Like
former regulation 55760, Education Code section 76224 provides that in the absence of
mistake, fraud, bad faith or incompetency, the grade the instructor gives a community
college student shall be final. The statute indicates that a community college district
40
must allow for grade changes when there is mistake, fraud, bad faith or incompetency.
But we do not interpret the statute to impose a similar requirement when it comes to
course repetitions or academic renewal referenced in former regulations 55761 and
55764. Accordingly, former regulation 55760 imposed a requirement on a community
college district in connection with an underlying program legally compelled by the state,
but the same is not true for former regulations 55761 and 55764. We will direct the trial
court to remand the portion of the claim involving former regulation 55760 to the
Commission for further determination, but we reject the portions of the claim pertaining
to former regulations 55761 and 55764.
7. Community Service Classes
Santa Monica Community College District sought reimbursement of costs
pursuant to former regulation 55000 et seq., which in relevant part related to community
service classes. The Commission denied the claim on the ground that Education Code
section 66010.4 authorized but did not require community colleges to offer community
service classes. The Community Colleges argue the Commission erred in so concluding.
The governing board of a community college district may, without the approval of
the state Board of Governors of the California community colleges, establish and
maintain community service classes. (Ed. Code, § 78300, subd. (a); Cal. Code Regs.,
tit. 5, former § 55160, subd. (a).) “The provision of community services courses and
programs is an authorized function of the community colleges so long as their provision
is compatible with an institution’s ability to meet its obligations in its primary missions.”
(Ed. Code, § 66010.4 subd. (a)(2)(C).) But neither the Education Code nor the
regulations require community college districts to provide community service classes.
(Ed. Code, §§ 66010.4, 783005; Cal. Code Regs., tit. 5, former §§ 55001, 55002, 55006,
55160.) Because the state did not require community college districts to offer community
service classes, subvention of funds by the state is not required.
41
8. Approval of Previously Deleted Courses
Santa Monica Community College District sought reimbursement of costs
pursuant to former regulation 55182, relating to reinstatement of courses eliminated as a
result of cuts in the Budget Act of 1982. The Commission denied the claim, concluding
that community college districts were not required to comply with former regulation
55182 and were authorized but not required to reinstate deleted courses.
Former regulation 55182 provided in relevant part, “The governing board of a
community college district may reinstate any course which was deleted from the credit or
noncredit curriculum during the 1982-83 fiscal year, in response to provision Number 11
of Item 6870-101-001 of the Budget Act of 1982 (Chapter 326, Statutes of 1982);
provided that the following criteria and procedures shall be applied in conjunction with
such reinstatement . . . .”
Former regulation 55182 used the word “may.” It authorized the governing board
of a community college district to reinstate a course deleted during the 1982-1983 fiscal
year in response to budgetary cuts, but it did not mandate reinstatement of deleted
courses. We have not found, and the Community Colleges do not cite, any statute
requiring such reinstatement. Accordingly, we reject this portion of the claim relating to
former regulation 55182.
9. Conversion of Noncredit Courses to Credit
Santa Monica Community College District sought reimbursement of costs
pursuant to former regulation 55807. The Commission denied the claim, finding that
former regulation 55807 did not require a community college to count noncredit courses
toward an associate degree. The Community Colleges contend the conclusion is error.
Former regulation 55807 provided, “Upon student petition to and certification by a
governing board of credit-level achievement and prescribed academic rigor, and evidence
of prescribed competence as approved by the faculty, noncredit courses may count
toward associate degrees.”
42
Former regulation 55807 used the word “may.” We have not found, and the
Community Colleges do not cite, any statute requiring community college districts to
count noncredit courses toward an associate degree. Because there appears to be no
underlying program compelled by the state, we reject this portion of the claim relating to
former regulation 55807.
10. Open Course Description
The claimants sought reimbursement of costs pursuant to regulation 58102.
Regulation 58102 provides, “The description of each course shall be clear and
understandable to the prospective student and shall be published in the official catalog,
and/or schedule of classes, and/or addenda. [¶] A course description may indicate that
the course is designed to meet certain specialized needs. If so indicated, the availability
of the course to all qualified students must also be affirmed.”
The Commission denied the claim in part, concluding the second and third
sentences of regulation 58102 did not require community college districts to indicate that
a course was designed to meet specialized needs, and the requirement to affirm the
availability of the course to all qualified students did not arise until a community college
district decided to indicate that a course met specialized needs. The Community Colleges
now argue the Commission erred in concluding that the regulation does not require them
to include in course descriptions that certain courses are available to students with special
needs.
The second sentence of regulation 58102 used the word “may,” and the third
sentence was dependent on application of the second sentence based on the words “[i]f so
indicated . . . .” Those sentences did not require a course description to indicate that the
course was designed to meet certain specialized needs, and the Community Colleges do
not cite any other authority requiring such a statement in the course description. Under
the circumstances, subvention by the state is not required for this portion of the claim.
43
11. Release of Directory Information
Los Rios Community College District sought subvention for costs pursuant to
former regulation 54626. The Commission rejected the claim, focusing on the permissive
word “may” in subdivisions (b) and (c). The Community Colleges argue the Commission
failed to give proper weight to the mandatory language in subdivision (a).
Former regulation 54626 provided, “(a) Community college districts shall adopt a
policy identifying any of the following categories of directory information which may be
released: student’s name, address, telephone number, date and place of birth, major field
of study, class schedule, participation in officially recognized activities and sports, weight
and height of members of athletic teams, dates of attendance, degrees and awards
received, [and] the most recent previous public or private school attended by the student.
[¶] (b) Directory information, as established by the local governing board, may be
released as to any student or former student currently attending the community college,
provided that public notice is given at least annually of the categories of information
which the district plans to release and of the recipients. Such notice shall also specify the
period of time within which the student must inform the district in writing that such
personally identifiable information is not to be designated as directory information with
respect to that student. No directory information shall be released regarding any student
or former student when the student or former student has notified the school in writing
pursuant to procedures established by the district that such information shall not be
released. [¶] (c) Other information may be added to the categories set forth in subsection
(a) of this [regulation], provided that release of such information shall be authorized in
writing by the student. [¶] (d) Any district may, in its discretion, limit or deny the
release of specific categories of directory information to any public or private nonprofit
organization based upon a determination of the best interests of students. The names and
addresses of students may be provided to a private school or college operating under the
provisions of Division 10 of the Education Code, or its authorized representative,
44
provided, however, that no such private school or college shall use such information for
other than purposes directly related to the academic or professional goals of the
institution.”
Former regulation 54626, subdivision (b) is based on Education Code
section 76240, subdivision (c) which provides that “[d]irectory information may be
released according to local policy as to any former student or any student currently
attending the community college. However, public notice shall be given at least annually
of the categories of information that the district plans to release and of the recipients. No
directory information shall be released regarding any student or former student when the
student or former student has notified the institution that the information shall not be
released.” The requirements in Education Code section 76240, subdivision (c) and
former regulation 54626, subdivision (b) applied only if a community college district
elected to release information it had designated as directory information. As for former
regulation 54626, subdivision (c), no activity by the community college districts was
required.
Nevertheless, we agree with the Community Colleges that former regulation
54626, subdivision (a) required the Community Colleges to adopt a policy. And, as we
explain in part III post, reimbursement by the state is required.
12. Open Programs and Courses
Santa Monica Community College District sought subvention under regulation
58107 and former regulation 58108, relating to open programs and courses. The
Commission denied the claim, concluding that the regulations prohibited a community
college district from engaging in certain activities but did not require any activity by a
community college district. The Community Colleges argue the test claim regulations
contained state mandates.
Regulation 58107 provides, “Notwithstanding any other provision of law, no
public funds shall be used in connection with athletic programs conducted under the
45
auspices of a community college district governing board or any student organization
within the district, which do not provide facilities and opportunities for participation by
both sexes on an equitable basis. Facilities and opportunities for participation include,
but are not limited to, equipment and supplies, scheduling of games and practice time,
compensation for coaches, travel arrangements, per diem, locker rooms, and medical
services.”
Former regulation 58108 provided, “Procedures for registration and standards for
enrollment in any course shall be only those which are consistent with these and other
[regulations] of Title 5 and uniformly administered by appropriately authorized
employees of the district. [¶] Except as otherwise provided by state law, no student shall
be required to confer or consult with or be required to receive permission to enroll in any
class from any person other than those employed by the college in the district. [¶]
Students will not be required to participate in any preregistration activity not uniformly
required; nor shall the college or district allow anyone to place or enforce nonacademic
requisites as barriers to enrollment in or the successful completion of a class. [¶] No
registration procedures shall be used that result in restricting enrollment to a specialized
clientele. [¶] The following registration procedures are permissible: special registration
assistance to the handicapped or disadvantaged student as defined by statute, for the
purpose of providing equalization of educational opportunity; and enrollment of students
in accordance with a priority system established pursuant to legal authority by the local
board of trustees. [¶] With respect to accessibility to off-campus sites and facilities, no
student is to be required to make any special effort not required of all students to register
in any class or course section. Once enrolled in the class, all students must have equal
access to the site.”
The Community Colleges argue that although the regulations are couched in
prohibitory language, the Commission disregarded the activities required to ensure that
prohibited acts do not occur. But the argument is asserted in a perfunctory fashion and
46
the Community Colleges do not identify the activities required. (Cal. Rules of Court,
rule 8.204(a)(1)(B); Freeman, supra, 8 Cal.4th at p. 482, fn. 2.) Under the
circumstances, this portion of the claim fails.
13. Grade Point Calculation
Santa Monica Community College District’s test claim is also based on former
regulation 55758.5. Applying the same reasoning it used with regard to regulation 58107
and former regulation 58108, the Commission concluded that subdivision (b) of former
regulation 55758.5 contained a prohibition but did not require community college
districts to engage in any activity.
Former regulation 55758.5, subdivision (b) provided, “In calculating students’
degree applicable grade point averages, grades earned in nondegree credit courses shall
not be included.” The Community Colleges argue this prohibitory language implies a
mandatory duty, but once again their discussion is perfunctory and lacks details in
support of their argument. This portion of the claim fails.
14. Provision of Instructional and Other Materials by Students
Los Rios Community College District sought subvention for costs incurred under
former regulation 59404. The Commission found that former regulation 59404 and
Education Code section 76365 required a community college district to adopt policies or
regulations only when the district required students to provide instructional and other
materials, and thus the regulation did not impose a state-mandated new program or higher
level of service subject to Section 6.
The Community Colleges now argue reimbursement is appropriate for costs
associated with adopting or implementing procedures under former regulations 59400
through 59408. But the claimants did not identify former regulations 59400 to 59402 and
59406 to 59408 in their test claims. We do not consider the appellate claim relating to
regulations not pleaded in the Minimum Conditions for State Aid test claim and,
therefore, not decided by the Commission because subvention under such regulations is
47
not properly before us. (Gov. Code, §§ 17551, subd. (a), 17553, subd. (b) [test claim
must identify the specific sections of statutes or regulations alleged to contain a
mandate]; Grossmont Union High School Dist., supra, 169 Cal.App.4th at p. 884.)
Former regulation 59404 provided, “(a) The governing board of a community
college district which requires that students provide instructional or other materials for a
course shall adopt policies or regulations, consistent with the provisions of this
Subchapter, which specify the conditions under which such materials will be required.
[¶] (b) The policies or regulations specified in Subsection (a) shall be adopted no later
than January 1, 1986, forwarded to the Chancellor’s Office upon adoption, and thereafter
published in each college catalog developed after the date of adoption.”
Although the Legislature did not intend for community college districts to provide
to students all materials, textbooks, equipment and clothing necessary for each course and
program (Ed. Code, § 76365), we have not identified, and the Community Colleges have
not cited, any statute or regulation requiring community college districts to obligate
students to provide course or program materials. Education Code section 76365, upon
which former regulation 59404 was in part based, recognizes that community college
districts have the authority to require students to provide instructional materials, but it
does not compel that choice. Former regulation 59404 only applies to a community
college district if it chooses to impose such a requirement on students. For this portion of
the claim, there is no state mandate for which reimbursement by the state is required.
III
The Community Colleges argue the Commission erred in concluding that although
regulation 54626, subdivision (a) imposed legally-compelled requirements on the
Community Colleges, those requirements did not involve a new program or higher level
of service.
To determine whether a test claim regulation or statute mandates a new program
or higher level of service, we compare the requirements in the test claim regulation or
48
statute with the preexisting scheme. (San Diego Unified School Dist. v. Commission on
State Mandates (2004) 33 Cal.4th 859, 878.) The requirements in a test claim regulation
or statute are new if they did not exist prior to the enactment of the test claim regulation
or statute. (Ibid.; County of San Diego v. State of California (1997) 15 Cal.4th 68, 75,
98; Lucia Mar, supra, 44 Cal.3d at p. 835; County of Los Angeles v. Commission on State
Mandates (2003)110 Cal.App.4th 1176, 1189.) But there is an additional aspect to the
analysis. Reimbursable costs are limited to increased costs a community college district
is required to incur after July 1, 1980 as a result of a statute or regulation enacted on or
after January 1, 1975. (Gov. Code, §§ 17514, 17516, 17519; Hayes, supra, 11
Cal.App.4th at p. 1581.)
The Commission determined that former regulation 54626, subdivision (a) did not
involve a new program or higher level of service because the governing statute,
Education Code section 76240, already imposed those requirements. However, the
statute to first impose those requirements, Education Code former section 25430.12,
was enacted in September 1975.7 (Stats. 1975, ch. 816, § 7; cf. Ed. Code, § 76240,
subd. (a)(1).) We have not found, and the parties do not cite, a predecessor statute on this
subject predating 1975. Thus, former regulation 54626, subdivision (a) implemented a
statute enacted after January 1, 1975 that mandated a new program. Costs incurred
7 The Commission says the claimants did not plead Education Code former section
25430.12 in their test claim and reimbursement is not required when a statute is not
pleaded in the test claim. It is true that a test claim must identify the specific statute or
regulation alleged to impose a mandate. (Gov. Code, § 17553, subd. (b)(1); Cal. Code
Regs., tit. 2, former § 1183, subd. (d)(1).) Los Rios Community College District’s test
claim cited former regulation 54626, subdivision (a) but did not cite the related Education
Code sections. Nevertheless, in its statement of decision the Commission acknowledged
that former regulation 54626 implemented Education Code section 76240 which was
originally enacted as Education Code section 25430.12, and the Commission considered
whether former regulation 54626 constituted a new program in light of those Education
Code sections. We do the same.
49
pursuant to former regulation 54626, subdivision (a) are subject to subvention by the
state. (Gov. Code, § 17516.)
During oral argument, the Commission urged that subvention cannot be
required because the Commission did not address whether the claimants incurred
increased costs mandated by the state. We do not consider the argument because it
was not raised in the appellate briefs. (Allen v. City of Sacramento (2015) 234
Cal.App.4th 41, 56.)
IV
The Community Colleges also contend the parameters and guidelines issued by
the Commission did not include all costs reasonably necessary to perform the state
mandated activity.
The Commission must determine the amount to be reimbursed to community
college districts and adopt parameters and guidelines for reimbursement. (Gov. Code,
§§ 17516, 17519, 17557, subd. (a).) The parameters and guidelines must describe the
reimbursable costs, including one-time costs and on-going costs, and the most reasonable
methods of complying with the mandate. (Cal. Code Regs., tit. 2, former § 1183.1.)
“ ‘The most reasonable methods of complying with the mandate’ are those methods not
specified in statute or executive order that are necessary to carry out the mandated
program.” (Cal. Code Regs., tit. 2, former § 1183.1, subd. (a)(4).) The Commission
adopts the parameters and guidelines following an opportunity for review and comment
and a hearing. (Cal. Code Regs., tit. 2, former §§ 1183.11, 1183.12, 1183.14.)
The Community Colleges argue that although the parameters and guidelines
allowed the costs of establishing a policy or procedure, the parameters and guidelines
failed to (1) allow for the costs of ongoing implementation, (2) include all activities listed
in certain statutes and regulations, and (3) conform to the Commission’s statement of
decision. We address each argument in turn.
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A
In arguing that the parameters and guidelines failed to allow for the costs of
ongoing implementation, the Community Colleges reference the procedures required
pursuant to Education Code sections 70902, subdivision (b)(7) and 66010.2,
subdivision (b), along with former regulation 55002, subdivisions (a)(4), (b)(4) and
(c)(3).
The Commission found that Education Code section 70902, subdivision (b)(7)
imposed a state-mandated new program or higher level of service subject to subvention
under Section 6. Education Code section 70902, subdivision (b)(7) required the
governing board of each community college district to “[e]stablish procedures that are
consistent with minimum standards established by the board of governors to ensure
faculty, staff, and students the opportunity to express their opinions at the campus level,
to ensure that these opinions are given every reasonable consideration, to ensure the right
to participate effectively in district and college governance, and to ensure the right of
academic senates to assume primary responsibility for making recommendations in the
areas of curriculum and academic standards.” Although the Commission allowed for
costs to “establish” the procedures as provided in the statute, the Community Colleges
argue that because the word “ensure” is also used in the statute, costs for ongoing
implementation must also be provided. But the word “ensure” is only used in the statute
to describe the purpose of the procedure that must be established; we do not read the
statute as imposing the kind of ongoing implementation responsibilities suggested by the
Community Colleges. Because Education Code section 70902, subdivision (b)(7) only
requires a community college to “establish” the designated procedures, the contention
fails as to that statute.
In addition, the record does not support the Community Colleges’ claim regarding
Education Code section 66010.2, subdivision (b), which required community colleges to
“provide all students the opportunity to address issues, including ethical issues, that are
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central to their full development as responsible citizens.” (Stats. 1991, ch. 1198, § 4.2.)
The Commission transferred this portion of the claim from the Discrimination Complaint
Procedures test claim to the parameters and guidelines for the Minimum Conditions for
State Aid test claim. The Commission agreed with the Community Colleges that the
activity of providing students the opportunity to address issues in community college
programs is reimbursable and it allowed reimbursement for that ongoing activity. Thus,
the Commission did not deny the costs of ongoing implementation in connection with
Education Code section 66010.2, subdivision (b).
As for former regulation 55002, subdivisions (a)(4), (b)(4) and (c)(3), the
Commission concluded that activities required by former regulation 55002 constituted
state mandated activities as they applied to associate degree credit courses, nondegree
credit courses and noncredit courses, but not community service classes. The
Commission said the requirement in subdivisions (a)(4), (b)(4) and (c)(3) that each
section of an associate degree course, nondegree course or noncredit course be taught by
a qualified instructor in accordance with a set of objectives and with other specifications
defined in the course outline of record constituted state mandated activities. The
parameters and guidelines subsequently indicated that reimbursement for costs associated
with subdivisions (a)(4), (b)(4) and (c)(3) did not include reimbursement for the process
required to determine that an instructor is qualified and also did not include the cost of
course instruction. However, the Community Colleges do not explain why the
Commission’s specific rationale is erroneous, saying only that the Commission applied
the “same flawed” reasoning. Accordingly, we reject their undeveloped claim. (Cal.
Rules of Court, rule 8.204(a)(1)(B); Freeman, supra, 8 Cal.4th at p. 482, fn. 2.)
B
In arguing that the parameters and guidelines failed to include all activities listed
in certain statutes and regulations, the Community Colleges claim the Commission
should have read Education Code section 70902, subdivision (b)(7) and regulations
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51023.5 and 51023.7 together and included the activities listed in those regulations in the
parameters and guidelines. The claim fails, however, because the parameters and
guidelines adequately include the activities listed in Education Code section 70902,
subdivision (b)(7) and regulations 51023.5 and 51023.7.
The Community Colleges further urge that the parameters and guidelines made the
same error with regard to Education Code sections 66736 and 66738. But the
Community Colleges fail to identify the regulations implementing Education Code
sections 66736 and 66738 and do not explain how the parameters and guidelines omit the
state mandated activities set forth in those regulations. We are not required to examine
undeveloped claims. (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785;
Maral v. City of Live Oak (2013) 221 Cal.App.4th 975, 984-985.)
C
In addition, the Community Colleges argue the parameters and guidelines failed to
conform to the Commission’s statement of decision.
In its statement of decision, the Commission determined that regulation 55202,
subdivision (e) included the following state mandated activity: offering sufficient
sections of a corequisite course to reasonably accommodate all students who are required
to take the corequisite. The subsequent parameters and guidelines indicated that the cost
of offering a corequisite course and the cost associated with teacher time for such course
were not reimbursable because the State did not require community college districts to
provide any specific corequisite course; a community college district determines the
corequisite courses it offers.
In their Appellant’s Opening Brief, the Community Colleges merely repeat the
language from the statement of decision and assert that the parameters and guidelines
must be consistent with the underlying mandate decisions. But they do not discuss the
alleged inconsistency in any detail and do not develop their argument. Accordingly, we
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reject the claim. (Cal. Rules of Court, rule 8.204(a)(1)(B); Freeman, supra, 8 Cal.4th at
p. 482, fn. 2.)
V
Finally, the Community Colleges contend the Commission failed to address the
test claim relating to repeatable courses and minimum requirements for Associate in Arts
degrees. Based on their description and citation to the record, it appears the Community
Colleges are arguing that the Commission did not decide the test claim with regard to
former regulations 55763 and 55800.5. The Commission says the Community Colleges
are referring to regulations 55041 and 55063, but those regulations are not cited in the
test claims. The Commission decided the test claim relating to former regulation
55800.5. Although the Commission refers to former regulation 55763 in a heading in its
Statement of Decision, it did not discuss that regulation. The Commission must decide
the test claim relating to former regulation 55763 in the first instance. (Gov. Code,
§ 17551, subd. (a); Lucia Mar, supra, 44 Cal.3d at p. 837.)
DISPOSITION
The judgment is affirmed in part and reversed in part.
The judgment is affirmed regarding Education Code sections 66738, subdivision
(b), 66741, 66743, 78210 through 78218, paragraphs 2, 4 and 5 of section 66740, the
portion of regulation 51008 dealing with education master plans, regulations 51002,
51004, 51012, 51021, 51022, 51023, 51023.5, 51023.7, 51024, 51027, 54626,
subdivisions (b) and (c), 55005, 55100, 55130, 55150, 55170, 55182, 55205 through
55219, 55300, 55316, 55316.5, 55320 through 55322, 55340, 55350, 55500 through
55534, 55600, 55602, 55602.5, 55603, 55605, 55607, 55620, 55630, 55752, 55753,
55753.5, 55758.5, 55761, 55764, 55800.5, 55805, 55806, 55807, 55808, 55809, 58102,
58107, 58108, 59404, the portion of regulation 55000 et seq. relating to community
service classes, and pages A-1 to A-54 of the Chancellor’s Program and Course Approval
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Handbook. The Community Colleges’ challenges to the parameters and guidelines are
rejected.
The judgment is reversed regarding regulations 51000, 51006, 51014, 51016,
51018, 51020, 51025, 54626, subdivision (a), 55825 through 55831, regulation 55760 in
cases involving mistake, fraud, bad faith or incompetency, and the Handbook of
Accreditation and Policy Manual.
The trial court is directed to remand to the Commission for further determination
the portions of the test claim based on Education Code sections 76300 through 76395,
regulations 51006, 51014, 51016, 51018, 51020, 51025, 55760, 55763, 55825 through
55831, and the Handbook of Accreditation and Policy Manual.
The parties shall bear their own costs on appeal. (Cal. Rules of Court,
rule 8.278(a)(5).)
/S/
MAURO, J.
We concur:
/S/
RAYE, P. J.
/S/
HOCH, J.
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