Judges: BILL LOCKYER, Attorney General
Filed Date: 5/9/2002
Status: Precedential
Modified Date: 7/5/2016
BILL LOCKYER Attorney General GREGORY L. GONOT Deputy Attorney General
THE HONORABLE LOU CORREA, MEMBER OF THE STATE ASSEMBLY, has requested an opinion on the following questions:
1. Is a "fundamental" school that has a district-wide attendance area and a "back-to-basics" curriculum, which its students and their parents must agree to support, exempt from "a random, unbiased process" in selecting pupils for enrollment when requests for admission of those meeting the entrance criteria exceed the capacity of the school?
2. Does a "first come, first served" selection policy constitute a "random, unbiased process" in selecting pupils for enrollment when requests for admission exceed the capacity of the school?
2. A "first come, first served" selection policy does not constitute a "random, unbiased process" in selecting pupils for enrollment when requests for admission exceed the capacity of the school.
(1) On or before July 1, 1994, the governing board of each school district shall, as a condition for the receipt of school apportionments from the state school fund, adopt rules and regulations establishing a policy of open enrollment within the district for residents of the district. This requirement does not apply to any school district that has only one school or any school district with schools that do not serve any of the same grade levels.
(2) The policy shall include all of the following elements:
(A) It shall provide that the parents or guardian of each school age child who is a resident in the district may select the schools the child shall attend, irrespective of the particular locations of his or her residence within the district, except that school districts shall retain the authority to maintain appropriate racial and ethnic balances among their respective schools at the school districts' discretion or as specified in applicable court-ordered or voluntary desegregation plans.
(B) It shall include a selection policy for any school that receives requests for admission in excess of the capacity of the school that ensures that selection of pupils to enroll in the school is made through a random, unbiased process that prohibits an evaluation of whether any pupil should be enrolled based upon his or her academic or athletic performance. For purposes of this subdivision, the governing board of the school district shall determine the capacity of the schools in its district. However, school districts may employ existing entrance criteria for specialized schools or programs for the criteria are uniformly applied to all applicants. This subdivision shall not be construed to prohibit school districts from using academic performance to determine eligibility for, or placement in, programs for gifted and talented pupils establishedpursuant to Chapter 8 (commencing with Section
52200 ) of Part of 28.(C) It shall provide that no pupil who currently resides in the attendance area of a school shall be displaced by pupils transferring from outside the attendance area.
(3) Notwithstanding the requirement of subparagraph (B) of paragraph (2) that the policy include a selection policy for any school that receives requests for admission in excess of the capacity of the school that ensures that the selection is made through a random, unbiased process, the policy may include any of the following elements:
(A) It may provide that special circumstances exist that might be harmful or dangerous to a particular pupil in the current attendance area of the pupil, including, but not limited to, threats of bodily harm or threats to the emotional stability of the pupil, that serve as a basis for granting a priority of attendance outside the current attendance area of the pupil . . .
(D) It may provide that schools receiving requests for admission shall give priority for attendance to siblings of pupils already in attendance in that school and to pupils whose parent or legal guardian is assigned to that school as his or her primary place of employment.
(E) It may include a process by which the school district informs parents or guardians that certain schools or grade levels within a school are currently, or are likely to be, at capacity and, therefore, those schools or grade levels are unable to accommodate any new pupils under the open enrollment policy.
(4) It is the intent of the Legislature that, upon the request of the pupil's parent or guardian and demonstration of financial need, each school district provide transportation assistance to the pupil to the extent that the district otherwise provides transportation assistance to pupils." (Italics added.)
1. Exemption from Random, Unbiased Selection Process
The first question to be addressed is whether a fundamental school with a back-to-basics curriculum is exempt from a "random, unbiased process" (§
Subdivision (b)(2)(B) of section
The second aspect of subdivision (b)(2)(B) of section
Keeping in mind these separate concepts and applying this construction of section
We conclude in answer to the first question that a fundamental school that has a district-wide attendance area and a back-to-basics curriculum, which its students and their parents must agree to support, is not exempt from a random, unbiased process in selecting pupils for enrollment when requests for admission of those meeting the entrance criteria exceed the capacity of the school.
2. "First Come, First Served" Selection Policy
We next consider whether a fundamental school may employ a "first come, first served" selection policy when requests for admission of qualified students exceed the school's capacity. We conclude that such a policy would not meet the requirement of a random, unbiased selection procedure.
"Random" in the present context means "having the same probability of occurring as every other member of a set. . . ." (Webster's 3rd New Internat. Dict. (1961) p. 1880.) "Unbiased" generally means "resolute in evenness and equality. . . ." (Id at p. 2483.)
A "first come, first served" selection process would not be random or unbiased. Those who submit their applications first would be selected. They would not have "the same probability" of being selected as those who submit their applications last. Equality of selection does not exist under such a policy between those submitting their applications first and those, for whatever reason, submitting their applications last.
In 78 Ops.Cal.Atty.Gen. 332 (1995), we considered the manner in which disqualified members of a board may be selected to establish a quorum for conducting business. We concluded that a random selection by lot, drawing cards, throwing dice, flipping coins, or similar chance selection was necessary; otherwise, the selection process would not be impartial or equitable. (Id at pp. 337-339; see also Villanueva v. Carere (10th Cir. 1996)
Our construction of section
The CDE Legal Office advises that, in its opinion, a first come, first served selection process would not constitute a random and unbiased process. Whether it is random is questionable because randomness implies that everyone has an equal chance. It is definitely not unbiased, however, in that it gives certain parents an advantage over others (e.g., in a family in which only one parent works outside the home, the other parent may have the time to stand in line for two days to ensure their application is first to be accepted. A family in which both parents work would not have this same opportunity). The only California cases discussing the concept of `random and unbiased' deal with jury selection. Although jury selection by lot is not necessarily `unbiased,' these cases definitely hold that it is `random' (See, e.g., People v. Wheeler (1978)
The department's advisory represents a long-standing administrative construction of statutory language that is entitled to great weight. (See People ex rel. Lungren v. Superior Court (1996)
We conclude that a first come, first served selection policy does not constitute a random, unbiased process in selecting pupils for enrollment when requests for admission exceed the capacity of the school.