Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. C611358, Joanne O’Donnell, Judge.
Law Office of Lew Hollman, Lew Hollman; Peter Roos; Neighborhood Legal Services of Los Angeles County; David Pallack; Legal Aid Foundation of Los Angeles, Dennis L. Rockway for Plaintiffs and Appellants.
Baker & Hostetler, Peter W. James; Los Angeles Unified School District, Kevin S. Reed, Georgina C. Verdugo, John F. Walsh for Defendant and Respondent.
BOREN, P.J.
In 1992, the parties entered a consent decree regarding public school funding. By its own terms, the consent decree ended in 2005. Plaintiffs sought an extension of time from the trial court, asking for five more years to achieve the consent decree’s goal of reducing inequalities in school funding. The trial court denied plaintiffs’ request for an extension. We affirm.
FACTS
This case began in 1986, with a taxpayer lawsuit alleging that the Los Angeles Unified School District (LAUSD) discriminates in its allocation of resources among its schools. With judicial approval, the parties negotiated a consent decree, with the goal of (1) equalizing resources, teacher experience and training among LAUSD schools; (2) providing all students with maximum access to experienced, well-trained teachers; and (3) mitigating the consequences of limited teacher experience and training. The consent decree was signed in 1992, and conferred continuing jurisdiction upon the trial court to enforce the consent decree, ending December 31, 2005.
The trial court’s approval of the decree was challenged on appeal. The parties mounting the challenge contended that the decree violated their constitutional right to equal protection and due process because it discriminated on the basis of race and wealth and interfered with their fundamental right to an education. This Court reviewed the consent decree and found it to be fair and nondiscriminatory. (Rodriguez v. Los Angeles Unified School District (Jul. 22, 1994, B071991) [nonpub opn.].)
In November 2005, shortly before the decree and the court’s jurisdiction were slated to expire, appellants asked the court to extend its jurisdiction for an additional five years, ending December 31, 2010. The terms of the consent decree allow jurisdiction to be extended upon a showing of “good cause.” Appellants argued that the extension “is essential to achieve the consent decree’s purpose of reducing inequalities in educational resources that disproportionately impact minority and low income students.”
Appellants identify the “core requirement” of the consent decree that LAUSD failed to meet, which relates to the equal allocation of “basic norm resources” to each school. Equalization is the benchmark for determining whether LAUSD has complied with the decree. As was discussed at length in our 1994 opinion, a significant obstacle to achieving equalization is that experienced teachers exercise their seniority rights to request transfers, and they tend to congregate in certain LAUSD schools. The experienced teachers receive higher salaries: as a result, a higher percentage of LAUSD general funds is channeled to certain schools to pay these teachers’ high salaries. The parties agree that basic norm resources cannot be diverted from high-spending schools due to limitations on LAUSD’s ability to transfer teachers.
Paragraph 14 of the consent decree states that LAUSD shall “equalize the per pupil allocation and expenditure of basic norm resources among all of the District’s regular schools . . . .” Paragraph 15 of the decree provides that “the District shall allocate basic norm resources to each school in the amount of the average dollars per enrolled student . . . multiplied by student enrollment at that school.”
In their supporting declaration, appellants recognize that the goal of mitigating the consequences of inexperienced teachers at certain schools “was almost certainly beyond the power of the District to accomplish,” precisely because the experienced, well-paid teachers cannot be involuntarily removed from the schools where they congregate. The parties agreed, as the consent decree was being implemented, that LAUSD “would find alternate sources” to raise funding levels and improve the performance of teachers at the poorer schools, a significant “de facto modification” of the terms of the consent decree, which discourages infusions of money from other sources.
The consent decree states that “Implementation of this equalization plan is based on the reallocation of existing basic norm resources and shall not require the District to infuse additional money from any source whatsoever.”
The supplemental funding program began in 1997; however, it was afflicted by budgetary shortfalls. Since 2002, LAUSD has allocated $11 million per year to the supplemental program, though appellants contend that it should have been allocating some $30 million annually to bring below-average schools up to the norm. Apart from the monetary shortfall, discovery conducted by appellants in 2002 and 2003 revealed that schools were not advised that they were supposed to use the money to mitigate the harm of having inexperienced or less qualified teachers. An audit showed that at least 15 percent of the supplemental funds were misspent.
LAUSD agrees with appellants’ claim of a “de facto modification” of the consent decree, and that supplemental payments were made to low-spending schools to compensate for the high teacher salaries paid at certain schools. But, LAUSD argued, the supplemental resources were “not predictable or consistent from year to year”--for example, a school could receive $450,000 one year and the next year, nothing. The inconsistency prevented school principals from making plans for use of the money. LAUSD was achieving greater success in student performance with a new school funding program that was consistent and predictable. The new program devoted additional resources (extra teachers and pupil supplements) to overcrowded year-round schools.
In opposition to appellants’ request for an extension, the former chief of staff to LAUSD’s superintendent of schools declared that “Compliance with the Consent Decree requires equalization of basic norm resources, without regard to the impact of those resources on student achievement. . . . Plaintiffs have endorsed programs to increase achievement but have been unwilling to add achievement considerations to the Consent Decree’s provisions.” The district is now required to focus on student achievement since the passage of the “No Child Left Behind” federal legislation in 2001, or face serious financial penalties. Thus, “a new focus on achievement has superseded the Consent Decree’s equalization of basic norm resources as the preferred measure of how successfully the District is helping its poor and minority students.” The former chief of staff opined that the “achievement-based approach is the better way to realize the improvement in student outcomes that both plaintiffs and the District seek.”
The consent decree contains an enforcement clause. It directs that the parties should attempt to resolve among themselves any dispute about the application, implementation, interpretation or compliance with the terms of the consent decree. If they are unsuccessful, “the matter may be submitted to the Court. If the Court finds the District to be in violation of the Decree, the Court may enter a specific order of enforcement.” Appellants never sought a court order to enforce the equalized funding requirements of the consent decree.
The trial court found no good cause to extend its jurisdiction for five years, because plaintiffs “fail to show what would be accomplished by such an extension. Specifically, plaintiffs do not assert that an extension is needed so that they can apply for a specific order of enforcement pursuant to Paragraph 36 of the Consent Decree, nor do they articulate the terms of any proposed enforcement order. Indeed, plaintiffs have never sought an enforcement order. The absence of efforts to obtain an enforcement order undermines plaintiffs’ position that the district is in fact not in compliance with the Consent Decree and distinguishes those cases in which the courts have extended jurisdiction over a consent decree to correct noncompliance.” Moreover, the court found, “Plaintiffs offer no evidence that defendants can adequately fund high-spending schools while at the same time equalizing low-spending schools.”
DISCUSSION
Appeal is taken from the order denying an extension of the consent decree. It is appealable as an order made after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2); Bernardi v. City Council (1997) 54 Cal.App.4th 426, 434, fn. 9.) By its own terms, the consent decree expired on December 31, 2005. An extension of that period would operate as a modification of the consent decree. Modifications to consent decrees are reviewed for an abuse of discretion. (System Federation v. Wright (1961) 364 U.S. 642, 646-647 [“sound judicial discretion may call for the modification of the terms” of a consent decree]; Shimkus v. Gersten Companies (9th Cir. 1987) 816 F.2d 1318, 1320; Welfare Rights v. Frank (1994) 25 Cal.App.4th 415, 421-422.) The abuse of discretion standard is particularly apropos where the trial court is called upon to weigh the evidence to determine whether there is “good cause” to extend the termination date of the consent decree. Because appellants are the party seeking to modify the consent decree with an extension of time, they bear the burden of proving good cause. (Rufo v. Inmates of Suffolk County Jail (1992) 502 U.S. 367, 383.)
Appellants contend that the LAUSD’s failure to make sufficient monetary allocations to low-spending schools is the primary basis for the motion to extend jurisdiction. Appellants reason that the consent decree should continue because “LAUSD acknowledges the continuing scarcity of qualified and experienced teachers in many schools within the district” and has failed to remedy the disparity between schools with equalization funding and the oversight necessary to ensure the proper use of that funding.
Both sides agree that LAUSD has not fully funded the supplemental resource allocation since at least 2002. In October 2002, appellants made an effort to safeguard their rights under the consent decree by conditionally agreeing to the release of $11 million, under a reservation of rights. While threatening to seek a court order of enforcement, appellants never did so, although the funding provided by LAUSD has fallen short by nearly $20 million each year since 2002.
Appellants’ counsel wrote, “By granting approval [to release the $11 million], the plaintiffs do not intend to waive the right of underspending schools to the full allocation of approximately thirty million dollars determined by the district as needed to fund underspending schools to the average. Further, the plaintiffs do not waive their right to seek a court determination that a full allocation should be made.”
The trial court could reasonably conclude that appellants’ failure to seek enforcement over the course of three years, accepting a shortfall amounting to tens of millions of dollars, was a concession that LAUSD could simply not adequately fund high-spending schools with well-remunerated teachers while equalizing low-spending schools. As appellants concede in their supporting declaration, mitigating the consequences of inexperienced teachers at some schools is “beyond the power of the District to accomplish.” Certainly, appellants offer no evidence how LAUSD might fund its multi-track year-round schools and still conjure up an additional $30 million per year to bolster the performance of inexperienced teachers. Appellants also fail to address how LAUSD might come up with the $71.5 million that is overdue for the 2002-2006 school years. Appellants acknowledge that the shortfall was the result of “a precipitous decline in state revenues.”
The trial court could legitimately consider appellants’ failure to secure an enforcement order in prior years, when it denied their motion for an extension. Although supplemental funding fell short of appellants’ hopes, they made no showing between 1992 and 2005 that LAUSD was in substantial noncompliance with the terms of the consent decree, such that its purpose was thwarted. If appellants had made such a showing--and the trial court had issued an enforcement order--an extension of time might have been justified as a proper exercise of the court’s power to enforce its own orders. Appellants waited until one month before the expiration of the consent decree to assert noncompliance by LAUSD in the trial court. At that point, LAUSD had racked up an impossible $71.5 million funding deficit. Although appellants attempted to protect themselves with a reservation of rights, their eleventh-hour effort to drag the consent decree out for another five years by claiming noncompliance was simply too late.
The trial court could also reasonably conclude that LAUSD has new programs in place to address underachieving schools. Appellants do not deny that since 2002, LAUSD has had to satisfy the mandates of the federal No Child Left Behind program, or face serious financial repercussions if student performance fails to improve. In other words, the paradigm has changed since the consent decree was signed in 1992, and new approaches to improving student achievement are being implemented. It is no longer fair or just to force LAUSD to administer the equalization program contemplated by the consent decree (when it has been financially unable to fund that program for the past few years) while simultaneously satisfying its obligations under federal law.
It must be underscored that the original terms of the consent decree do not require the dispensing of tens of millions of dollars in supplemental funding that appellants are demanding. In fact, the decree expressly states that the district “shall not” infuse supplemental funds (see fn. 2, ante). What the consent decree was intended to do was reallocate existing resources, not oblige LAUSD to come up with $100 million in supplemental resources. The significant “de facto modification” that appellants cited to the trial court effectively eviscerated the entire basis for the decree, i.e., the reallocation of existing resources. This is compelling proof that the decree is not workable and should not be extended.
Finally, appellants complain that LAUSD did not ensure that all of its supplemental funds were properly used to mitigate the effect of inexperienced teachers. Appellants’ declarations reveal that they learned of the misuse of supplemental funds during discovery in 2002-2003. It is too late in the day for appellants to demand an extension to compensate for failings that occurred years ago. Appellants could ask for ad infinitem extensions of the consent decree by pointing to old lapses that they did nothing to rectify, rendering hollow the negotiated expiration date. By not asking the trial court to order corrective action in a timely manner, appellants forfeited their right to complain.
DISPOSITION
The judgment is affirmed.
We concur: DOI TODD, J., ASHMANN-GERST, J.