By Jorge Casuso

March 14, 2019 -- A Superior Court Judge this week rejected a motion by the Santa Monica-Malibu Unified School District (SMMUSD) to dismiss a lawsuit charging it violates a student's right to a free education.

Filed in July 2017, the class action lawsuit claims that the District illegally "requires" students to purchase certain items needed for school -- such as supplies, uniforms and field trips -- in violation of California's Education Code and Constitution.

In his ruling Tuesday, Judge Elihu M. Berle denied the District's motion for a summary judgment "based on Plaintiffs’ purported failure to exhaust administrative remedies."

The judge also denied the District's summary adjudication motion "with respect to Plaintiffs’ second and third causes of action for violation of the Equal Protection Clauses of the California Constitution."

In addition, Berle denied an application from major Santa Monica civic and special interest groups to file an "amicus curiae" brief in the case, which claims that the District illegally "requires" students to purchase certain items needed for school.

The application was filed for the Santa Monica Education Foundation, Community for Excellent Public Schools (CEPS), Santa Monica-Malibu Classroom Teachers Association, Service Employees International Union Local 99, the League of Women Voters of Santa Monica, Santa Monicans for Renters’ Rights (SMRR) and Santa Monica Forward.

In a statement issued Wednesday, District Superintendent Dr. Ben Drati told the Lookout that the District was "disappointed" with the ruling and is evaluating its options.

"We learned yesterday that the judge denied our motion seeking early dismissal of the pupil fees lawsuit," Drati said. "We are disappointed and believe the judge made errors on some key points of law and fact.

"In the ruling, the judge devalued the procedure available to parents who feel they have been charged impermissible fees," Drati said.

"Further, the judge was too willing to excuse the attorney’s flat refusal to follow the complaint procedure, when the District repeatedly asked him to do so.

"The litigation is at an early stage, and the District is evaluating its options related to the judge’s decision," Drati said.

Kevin Shenkman, the attorney for the plaintiffs in the class action lawsuit, said complaints concerning pupil fees routinely go unanswered by Assistant Superintendent Mark Kelly, the District's chief compliance officer.

"It's not only these complaints (in the lawsuit), but each and every other similar complaint that has been ignored," Shenkman said. "No one ever responds to these people.

"They (District officials) rely on charging the students," Shenkman said. "If they didn't rely on it, they would run the District on the money the State supplies."

According to the lawsuit, the "pupil fees" pay for such things as uniforms and swimwear for physical education classes, outfits for choral performances, musical instruments, calculators for math classes, art supplies, writing utensils, paper and notebooks.

In its request for a summary judgment, the District argued that the plaintiffs failed to exhaust their administrative remedy prior to filing their lawsuit.

The lawsuit, wrote the District's attorney Mark Bresee, was filed before the 60 days the District is given to address a uniform complaint.

"Plaintiffs (through counsel) flatly refused to participate, refusing even to answer a few basic questions from the District in person or in writing," Bresee wrote.

"Longstanding principles of California law and public policy dictate that to exhaust an administrative remedy an individual must initiate it, participate in it in good faith, and fully exhaust it based on the
administrative remedy itself, not when counsel deems the procedure exhausted."

In his response, Shenkman countered that the District had taken more than 16 months to render a decision on a uniform complaint.

The District's "restrictive interpretation" of the law, Shenkman wrote, is to "indefinitely commit Plaintiffs' claims to administrative purgatory while it continues to violate its students' rights to a free and equal public education."

Shenkman, who filed the class action lawsuit on behalf of parents Gina de Baca and Vivian Mahl, estimates the cost to parents and students of purchasing the required items adds up to millions of dollars a year.

District spokesperson Gail Pinsker has said the District abides by the law but that "from time to time, teachers might say something is required instead of suggested."