The opinion
RIVERA, J., Concurring.
I concur in the judgment but disagree with a small portion of the majority’s analysis. Part H.A.4. of the majority opinion describes the appellant school districts’ theory of mandamus as improperly seeking independent judicial review of the State Board of Education’s (State Board) discretionary, quasi-legislative actions in implementing the No Child *127 Left Behind Act (NCLBA). This case is, according to the majority, “all about asking the court to pass on the means employed by the State Board to effect the . . . purpose of [the statute]” and therefore neither mandamus nor independent review is available. (Maj. opn., ante, at pp. 117-118.) This is not how I read the school districts’ theory of mandamus. In my view, the majority has conflated two of the districts’ arguments into a single theory. 1
The school districts’ threshold argument in this litigation is whether the State Board’s implementation of a statute within the NCLBA was in conflict with the fundamental purpose of the statute—a question that, in the first instance, calls for statutory interpretation. As we state in the introduction, “the School Districts’ premise [is] that the purpose of California’s LEP [limited English proficient] testing regime is at odds and incompatible on its face with the NCLBA . . . .” (Maj. opn., ante, at p. 101.) And, we address this very contention in part II.A.5. of our opinion where we state: “The School Districts denounce [the State Board’s LEP] testing decision as being grounded in an improper purpose, namely to measure what LEP students know and can do in the academic content areas in English. This purpose, they maintain, is incompatible on its face with the NCLBA and thus ‘inherently invalid.’ ” (Maj. opn., ante, at p. 118.) We then analyze and reject this theory, concluding that “a purpose to measure LEP students’ mastery of academic content standards in English is not incompatible with the NCLBA.” (Maj. opn., ante, at p. 120, italics added.)
Had we construed the NCLBA as requiring testing for English learners to be valid independent of their English fluency wherever feasible, declaratory relief or a writ of mandate might well have been in order. (See, e.g., Morris v. Williams (1967) 67 Cal.2d 733, 737 [ 63 Cal.Rptr. 689 , 433 P.2d 697 ] [agency actions that fail to carry out the purpose of the authorizing statute “are void and no protestations that they are merely an exercise of administrative discretion can sanctify them.”]; Alford v. County of San Diego (2007) 151 Cal.App.4th 16, 23, 34 [ 59 Cal.Rptr.3d 596 ] [writ issued; agency regulations adopted to implement, interpret or carry out a statute’s provisions must be consistent with the statute; standards that fail to carry out the statute’s objectives are void].) In the end, we decided the State Board’s tests were not in conflict with the law, based upon our interpretation of the relevant statutes *128 and upon other evidence in the record supporting that interpretation. (Maj. opn., ante, at pp. 118-120.) We also determined that the State Board’s actions in carrying out the NCLBA were not an abuse of discretion. (Maj. opn., ante, at 120-125.) These determinations answer all of the issues raised in this litigation. Part II.A.4. of the majority opinion is unnecessary and is based on the mistaken premise that mandate was categorically unavailable under any of the school districts’ theories.
A petition for a rehearing was denied August 20, 2009.
join my colleagues in rejecting the school districts’ attempt to use expert evidence to prove that the State Board’s actions did not satisfy legal requirements “as a matter of fact.” (Maj. opn., ante, at p. 117.) As we note, it is inappropriate in a mandamus action to introduce evidence outside of the record comprised of “contradictory expert testimony designed to question the wisdom and accuracy of an agency’s decision.” (Maj. opn., ante, at p. 125.) But this argument was distinct from the districts’ threshold contention that the tests were invalid “as a matter of law,” relying on the statutory language.