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Governor Proposes Suspension of K-12 Mandates
 
 
Four weeks ago, the San Diego Superior Court ruled the State's mandate payment deferral practice was unconstitutional.  With mandate deferrals no longer an option the State must now decide whether to pay mandates or eliminate them.  Clearly the Governor is not going to terminate all education mandates (honestly some of those mandates are important).  Instead, the Governor proposes to suspend education mandates.
 
 
On New Year's Eve, the Department of Finance (DOF) released the Governor's  2009/10 budget proposal.  The proposed budget breaks new ground by suspending the requirement to comply with all K-12 mandates except for the High School Exit Exam and Interdistrict and Intradistrict Attendance programs.*  A program suspension means Districts need not comply with the program for the indicated budget year.  Contrast the suspension of a mandate, which only applies for one year, to a repeal, which is the permanent elimination of a specific mandated program.

The first important point is this:  The Governor cannot suspend education mandates as he proposes.  The current state of mandates law makes it impossible to suspend education mandates.  Simply saying "education mandates are now suspended" fails to overcome the legal truth that the Governor has no authority to suspend under current mandates law.

* The Interdistrict Attendance program has been eliminated.  However, the Governor wants you to know you can be paid for a program that is no longer a mandate.
  
You've Done This for Years - Now Stop For One, Then Start Again 
 
For discussion purposes let's ignore the fact the suspending education mandates is currently impossible.  If education mandates were suspended here are some of the activities Districts would not be required to perform:  
 
  1. Bargain with unions or adhere to current bargaining agreements.
  2. Provide second year science courses as a prerequisite of graduation.
  3. Expel students for specified violations or carry out hearings.      
  4. Track student absences/lateness or send out truancy notifications.
  5. Conduct criminal background checks for new hires.
  6. Evaluate teacher performance.
  7. Provide supplemental instruction to retained students.
  8. Provide oversight of approved District charter schools.
  9. Prepare interim budget report certifications or address audit findings.
  10. Prepare safe school plans.
  11. Verify student immunizations or screen students for scoliosis.
This list is just a sample of the hundreds of activities that would become optional under the Governor's Proposed Budget.   While the Governor believes it is possible to simply stop performing these activities, the reality is much different.  Will Districts layoff all second year science teachers for one year?  They could.  There is time for layoff notices to be sent.  However, we all know Districts will not lay off science staff - and the Governor knows it as well.  Will Districts fail to track student absences, send notices, and layoff support staff?  Of course not.
 
The reality is the majority of mandates are so intertwined with the day-to-day operations of all school districts that the time and energy necessary to eliminate them for one year outweighs the time to simply perform them.  Imagine the time and cost necessary to update all applicable District polices and procedures, informing district staff and parents of the changes, and then changing them all back next year.

Of additional concern is the fact many mandate programs are implemented over multiple fiscal years.  For example, expulsion cases and re-admissions, union contracts, pupil promotion and retention, and charter school oversight are all multi-year mandates that simply cannot be eliminated one year only to be picked up again the next.
 
In our opinion, the Governor has taken the State's "have its cake and eat it too" approach to mandates one step further.  As you know, the State has long required Districts to perform mandates while at the same time deferred payment for those mandated activities.  Now, the Governor proposes to suspend mandates so Districts are not required to perform mandated activities knowing full well it would be almost impossible to stop performing most mandates.  Imagine District liability if they failed to protect the health and safety of its pupils and employees.  How about the students that would be unable to graduate since second year science would be suspended for one year?
 
The reality is the Governor knows full well that most Districts would continue to perform most mandates (obviously some mandates are easier to eliminate than others at the District level).  Knowing mandates would still be performed therefore creates the greatest injustice to date as it relates to the mandate arena: Suspend education mandates while knowing Districts will continue to perform them at Districts' expense all the while violating the core tenant of the California Constitution that the State shall not shift costs from itself to local agencies without a subvention of funds.
 
The State Needs to Accept its Payment Responsibilities 
 
The core tenet of mandate reimbursement is to protect limited K-12 revenue limit funding.  To do this the State must pay for new programs or higher levels of services with an additional revenue stream.   The Governor's proposal to suspend mandates fails to address the fundamental problem that Districts will continue to perform many mandated programs even in the face of mandate suspensions.  While mandate suspensions are indirectly the result of the current budget crisis, the real culprit is the CSBA decision informing the Legislature that deferral of mandate payments is unconstitutional.
 
Without his deferral card, the Governor decides to suspend mandates for one year.  But we ask, why not simply eliminate education mandates altogether?  If the real goal is to avoid mandate payment responsibility (which is clearly the objective here) then get rid of mandates entirely.  To avoid payment for one year provides no long-term solution and is more akin to sticking your head in the sand.  Mandate avoidance is not the solution.  Funding mandates, even at a percentage of the total owed is what the Governor should do.  We realize the monumental issues facing the Governor during these tough budget times, but in reality mandates represent only a fraction of total Proposition 98 funds.
 
Examine Each Mandates Merit
 
Instead of suspending compliance for one year for all but two mandates, this would be the ideal time to examine each mandate on its own merits and repeal the ones that no longer are worth funding.   The State should either pay for them or get rid of them.  Suspending programs for a year creates inconsistency that is simply bad policy.
 
Do I Still File Claims if Mandates are Suspended? 
 
Yes, Districts would still need to file mandate claims if the Governor overcame the legal issues surrounding suspension of education mandates. If this proposal were adopted, Districts would still incur costs to file 2008/09 claims.  In addition, initial claims would not be affected by this proposal so Districts would need to track all initial claims along with those likely to be approved by the Commission on State Mandates.  Finally, costs would be incurred for contemporaneously tracking 2009/10 activities, at least for any programs that the Governor deemed worthy of funding for 2009/10.  
 
Steve Smith, President 
 
 David E. Scribner, Esq., CEO

dscribner@max8550.com 
Scribner & Smith
2200 Sunrise Boulevard, Suite 220
Gold River, California 95670
 T 916.852.8970    F 916.852.8978