School District Was Not Required To Honor A Parent’s Request To Put Item On the Board Agenda When Not Directly Related To School District Business

A California appellate court has ruled that a school board did not abuse its discretion when it refused to place an item on its agenda where the proposed item did not directly relate to school district business.  The court held the school district had discretion to refuse an item proposed by a parent to change an activity at a middle school from one promoting anti-bullying awareness for gay, bisexual, lesbian and transgender students to an “all inclusive anti-bullying day.”  (Mooney v. Garcia (--- Cal.Rptr.3d ----, Cal.App. 6 Dist., June 26, 2012).


Norina Mooney (“Mooney”) is a parent of a child who is a student at Castillero Middle School (“School”), which is part of the San Jose Unified School District (“District”).  The “Gay-Straight Alliance,” is a student club that hosted “Rainbow Day” which was a student-led and student initiated activity designed to “promote awareness for gay, lesbian, bisexual and transgendered students.”

Mooney submitted a request that the District place an item on its Board’s agenda that proposes to change “Rainbow Day” to an “all inclusive anti-bullying day.”  The District denied her request because the item she proposed was not within the “subject matter jurisdiction” of the Board because the Board “does not direct specific activities at individual schools.”

Mooney filed a writ of mandate petition to compel District to place her proposed item on the Board’s agenda.  Mooney asserted that District had a ministerial duty pursuant to Education Code section 35145.5 to place the proposed item on the agenda.  The trial court denied Mooney’s writ petition.  The court of appeal affirmed the decision of the trial court.


Education Code section 35145.5 states, “It is the intent of the Legislature that members of the public be able to place matters directly related to school district business on the agenda of school district governing board meetings.”  Therefore, every agenda for regular board meetings must “provide an opportunity for members of the public to directly address the governing board on any item of interest to the public, before or during the governing board’s consideration of the item that is within the subject matter jurisdiction of the governing board.”  Governing boards must adopt reasonable regulations to make certain that the Legislature’s intent is carried out.  These regulations may set out reasonable procedures to ensure that meetings function properly.

Section 35145.5 specifically states that it does “not preclude the taking of testimony at regular meetings on matters not on the agenda which any member of the public may wish to bring before the board provided that, except as authorized by Government Code section 54954.2, “no action is taken by the board on those matters at the same meeting at which the testimony is taken.”  The Legislature further provided that nothing in section 35145.5 “shall be deemed to limit further discussion on the same subject matter at a subsequent meeting.”

The appellate court concluded that the language of section 35145.5 shows that the duty imposed on a school district to allow an item to be placed on its board’s agenda by a member of the public is not purely ministerial and is in fact mixed with discretionary power.  The court stated that if a duty is not ministerial, relief in the form of mandate is not available unless a petitioner can show an abuse of discretion.  An abuse of discretion can be found only where a decision is “arbitrary, capricious, entirely lacking in evidentiary support, unlawful, or procedurally unfair.”

The District decided not to place the item proposed by Mooney on the Board’s agenda because “the Board ‘does not direct specific activities at individual schools.’”  Rainbow Day was an activity that was both “student-led” and “student initiated.”   The event was not organized by District personnel and it occurred on a single day at a single school.  The appellate court found that District’s determination that the agenda item proposed by Mooney was not directly related to District’s business was neither arbitrary nor capricious.  The District’s “discretionary decision was supported by the evidence that the propriety of this isolated student club activity was inadequately ‘related to school district business’ to merit consideration by the Board given that the Board, as a matter of policy, did not ‘direct specific activities at individual schools.’”  The District did not abuse its discretion when it declined Mooney’s request to place her proposed item on the Board’s agenda.  

Mooney asserted that because the Board’s regulations require District to approve the creation of student clubs, then student clubs are in fact “district business.”  The appellate court rejected this argument finding that Mooney’s proposed item concerns a single activity on a single day that was put on by an existing student club and did not concern the creation of a student club.

Money also asserted that her proposed item concerns “anti-bullying,” which she claims is directly related to “district business.”  However, the appellate court pointed out that Mooney did not propose an anti-bullying day, but a change from Rainbow Day to an anti-bullying day.  The court expressed no opinion as to whether District would have an obligation to place on its agenda a proposed item that deals with the creation of an anti-bullying day.

What This Means To You

The Education Code allows members of the public to place an item on the governing board’s agenda where that item is directly related to district business.  However, school districts do retain discretion to determine whether that item is “directly related to school district business” within the meaning of the Education Code.  If the Governing Board determines that the agenda item is not directly related to school district business, then the district may refuse to allow the item to be placed on that meeting’s agenda.


If you have any questions concerning the content of this Legal Alert, please contact the following from our office, or the attorney with whom you normally consult.

Christian M. Keiner or Meghan Covert Russell | 916.321.4500


Written by:

Published In:

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Kronick, Moskovitz, Tiedemann & Girard | Attorney Advertising

Don't miss a thing! Build a custom news brief:

Read fresh new writing on compliance, cybersecurity, Dodd-Frank, whistleblowers, social media, hiring & firing, patent reform, the NLRB, Obamacare, the SEC…

…or whatever matters the most to you. Follow authors, firms, and topics on JD Supra.

Create your news brief now - it's free and easy »

All the intelligence you need, in one easy email:

Great! Your first step to building an email digest of JD Supra authors and topics. Log in with LinkedIn so we can start sending your digest...

Sign up for your custom alerts now, using LinkedIn ›

* With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name.