                         TO BE PUBLISHED IN THE OFFICIAL REPORTS


                              OFFICE OF THE ATTORNEY GENERAL

                                        State of California


                                        DANIEL E. LUNGREN

                                          Attorney General


                            ______________________________________

                   OPINION              :
                                        :          No. 95-910
                   of                   :
                                        :          April 12, 1996
          DANIEL E. LUNGREN             :

            Attorney General            :

                                        :

          CLAYTON P. ROCHE              :

         Deputy Attorney General        :

                                        :

______________________________________________________________________________


           THE HONORABLE CURT PRINGLE, SPEAKER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on the following questions:

              1.       May the State Superintendent of Public Instruction waive provisions of the
Education Code for entire school districts, except those relating to earthquake safety?

                  2.     May the State Superintendent of Public Instruction allocate funds to a school
district for the operation of alternative schools on a basis (e.g., "active monthly enrollment" or "block
grants" for special purpose education programs) for which no statutory authority exists?

                  3.      May the State Superintendent of Public Instruction designate an entire school
district as an "alternative school"?

              4.     What is the role of the State Board of Education in the waiver of Education
Code provisions by the State Superintendent of Public Instruction for the operation of alternative
schools?




                                                   1.                                            95-910

                                                    CONCLUSIONS


              1.       The State Superintendent of Public Instruction may not waive provisions of the
Education Code for entire school districts.

                 2.      The State Superintendent of Public Instruction may not allocate funds to a
school district for the operation of alternative schools on a basis (e.g., "active monthly enrollment" or
"block grants" for special purpose education programs) for which no statutory authority exists.

                 3.       The State Superintendent of Public Instruction may not designate an entire
school district as an "alternative school."

                4.      The State Board of Education has no role in the waiver of Education Code
provisions by the State Superintendent of Public Instruction for the operation of alternative schools.

                                                       ANALYSIS

                The State Superintendent of Public Instruction ("Superintendent") is "elected by the
qualified electors of the State at each gubernatorial election." (Cal. Const., art. IX, ' 2.) The
Superintendent is directed to "[s]uperintend the schools of this state" (Ed. Code, ' 33112) 1 and
"execute, under direction of the State Board of Education, the policies which have been decided upon
by the board" (' 33111). The Superintendent is ex-officio the director and executive officer of the
State Department of Education. ('' 33301-33303.)

                We are presented herein with a number of questions relating to the authority of the
Superintendent to waive provisions of the Education Code with respect to the operation of "alternative
schools" by local school districts.

                  1.        Authority To Waive Statutory Requirements

                The first question presented is whether the Superintendent has the authority to waive
provisions of the Education Code for entire school districts, except those provisions relating to
earthquake safety. For example, may the Superintendent waive provisions relating to (1) the definition
of "average daily attendance" for purposes of computing school apportionments (' 46000 et seq.), (2)
the determination of revenue limit apportionment funding (' 42238 et seq.), (3) the requirements to
maintain specified minimum amounts of instructional time for the school day and year (' 46206), or (4)
the determination of apportionments for various special purpose ("categorical") education programs?
We conclude that the Superintendent may not waive statutory requirements for entire school districts.

                 In 1975 (Stats. 1975, ch. 448) the Legislature authorized the establishment of
alternative schools by local districts. The purposes of this statutory scheme ('' 58500-58512) are set
forth in section 58500 as follows:

    1
     All section references are to the Education Code unless otherwise indicated.


                                                             2.                                  95-910

                "The governing board of any school district may establish and maintain one or
        more alternative schools within the district.

                "For the purposes of this article, an alternative school is defined as a school or
        separate class group within a school which is operated in a manner designed to:

                 "(a) Maximize the opportunity for students to develop the positive values of
        self-reliance, initiative, kindness, spontaneity, resourcefulness, courage, creativity,
        responsibility, and joy.

               "(b) Recognize that the best learning takes place when the student learns
        because of his desire to learn.

                "(c) Maintain a learning situation maximizing student self-motivation and
        encouraging the student in his own time to follow his own interests. These interests
        may be conceived by him totally and independently or may result in whole or in part
        from a presentation by his teachers of choices of learning projects.

                "(d) Maximize the opportunity for teachers, parents and students to
        cooperatively develop the learning process and its subject matter. This opportunity
        shall be a continuous, permanent process.

               "(e) Maximize the opportunity for the students, teachers, and parents to
        continuously react to the changing world, including but not limited to the community in
        which the school is located."

Parents or guardians may request the governing board of their school district to establish an alternative
school program. (' 58502.) "Teachers employed and students enrolled in the alternative school shall
be selected entirely from volunteers." (' 58503.) Alternative schools may be established "in each
attendance area or on a districtwide basis, with enrollment open to all students districtwide, or any
combination thereof." (' 58505.) These schools must be evaluated annually by the school district and
a report sent to the Superintendent. (' 58510.) The Superintendent is also authorized to establish
further minimum standards and guidelines for the operation of alternative schools. (' 58511.)

                 There is no general authority for the Superintendent to waive provisions of the
Education Code for entire school districts. However, with respect to the operation of alternative
schools by local districts, the Superintendent may waive provisions of the Education Code, except those
relating to earthquake safety and those specifically relating to alternative schools. Section 58509, the
focus of this opinion, provides:

                "For the operation of alternative schools as herein defined, the Superintendent
        of Public Instruction may, upon application of a school district, waive any provisions of
        this code other than those relating to earthquake safety and the provisions of this
        chapter [sections 58500-58512]."

                                                    3.                                               95-910

                In applying the language of section 58509 to the issues raised herein, we are guided by
well established principles of statutory construction. "When interpreting a statute our primary task is
to determine the Legislature's intent. [Citation.]" (Freedom Newspapers, Inc. v. Orange County
Employees Retirement System (1993) 6 Cal.4th 821, 826.) "To determine the intent of legislation, we
first consult the words themselves, giving them their usual and ordinary meaning. [Citations.]"
(DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) When "`statutory language is . . . clear and
unambiguous there is no need for construction, and courts should not indulge in it.'" (Rojo v. Kliger
(1990) 52 Cal.3d 65, 73.) The plain meaning of words in a statute may be disregarded only when that
meaning is "`repugnant to the general purview of the act,' or for some other compelling reason. . . ."
(Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 219.)

                The term "waive" in this context may be defined as "to refrain from pressing or
enforcing (as a claim or rule)." (Webster's Third New Internat. Dict. (1971) p. 2570.) The only statutory
provisions that must be enforced by the Superintendent regarding the operation of alternative schools
are earthquake safety requirements and the alternative school requirements of sections 58500-58512.
All other provisions of the Education Code may be waived. We find no compelling reason for
disregarding the plain meaning of the terms of section 58509.

                Of course, the Superintendent's waiver authority may only be exercised "upon
application of the school district" itself. Accordingly, which Education Code provisions are to be
waived is a matter of initial determination by the local school board.

                In any event, the Superintendent may not waive provisions of the Education Code for
entire school districts. As we shall demonstrate in answer to the third question, school districts are not
comprised solely of alternative schools.

                2.      Allocation of Funds

                The second question presented is whether the Superintendent may, in addition to
waiving statutory provisions relating to the funding of alternative schools, allocate the funds on a
different basis (e.g., "active monthly enrollment" or "block grants" for special purpose education
programs) for which no statutory authority exists. We conclude that the Superintendent may not do so.

                First, section 58509 prohibits the Superintendent's waiver of "the provisions of this
chapter," one of which is section 58507. Section 58507 states: "[a]ny alternative school shall be
maintained and funded by the school district at the same level of support as other educational programs
for children of the same age level operated by the district." Hence, equal funding levels must be
maintained by the school district, if the Superintendent waives a funding requirement requested by the
school board.

                 More importantly, neither the Superintendent nor any other state officer may allocate
state school funds on a basis for which no statutory authority exists. (See Comite De Padres De
Familia v. Honig (1987) 192 Cal.App.3d 528, 532.) "[A]ny act of an officer to be valid must find
express authority in law or be necessarily incidental to a power expressly granted. . . . [C]ourts . . .

                                                   4.                                             95-910

cannot by construction confer upon any officer an authority which the Legislature has seen fit to
withhold." (Bear River Etc., Corp. v. County of Placer (1953) 118 Cal.App.2d 684, 690.) Here, we
believe that the Legislature has not authorized the Superintendent to allocate funds on a different basis
or at different levels from that set forth in the Education Code. The Superintendent may act only in
accordance with the Legislature's purposes in enacting sections 58500-58512, particularly those
contained in section 58500. (See Clean Air Constituency v. California State Air Resources Bd. (1974)
11 Cal. 3d 801, 815-817 [discretion of administrative agency to make decisions in compliance with
legislative standards].)

                We conclude that the Superintendent may not allocate funds to a school district for the
operation of alternative schools on a basis (e.g., "active monthly enrollment" or "block grants" for
special purpose education programs) for which no statutory authority exists.

                3.      Entire School District As An Alternative School

                 The third question presented is whether the Superintendent may designate an entire
school district as an alternative school. We conclude that the Superintendent may not do so.

               Initially it is to be noted that only a local school board may establish an alternative
school. ('' 58500, 58501, 58502, 58505). While the Superintendent may waive certain provisions of
the Education Code for the operation of such schools, "the provisions of [sections 58500-58512] may
not be waived." (' 58509.) Hence, the Superintendent has no authority to designate an alternative
school, whether or not such a school or schools would take the place of all traditional schools in a
district.

                 As for a local school board, "[a] district may establish alternative schools in each
attendance area or on a districtwide basis, with enrollment open to all students districtwide, or any
combination thereof." (' 58505.) While section 58505 would seemingly allow every school of a
district to be an alternative school, "[t]eachers employed and students enrolled in the alternative school
shall be selected entirely from volunteers." (' 58503.) As long as one student or one teacher does not
volunteer for an alternative school, a local school board may not establish alternative schools to the
exclusion of traditional schools for the entire school district.

                 In any event, the Superintendent has no authority to designate an entire school district
as an alternative school.

                4.      Role of the State Board of Education

                The final question asks what role the State Board of Education ("Board") has in the
Superintendent's granting of statutory waivers for the operation of alternative schools. We conclude
that the Board has no role in the Superintendent's granting of such waivers.

               Although as a general proposition the Superintendent acts as the executive officer of the
Board in carrying out its policies (' 33301), the provisions of sections 58500-58512 do not grant the
Board a role in the Superintendent's decisions regarding statutory waivers. The plain wording of

                                                   5.                                             95-910

section 58509 is that upon application of a school district, "the Superintendent of Public Instruction
may . . . waive any provisions of" the Education Code other than earthquake safety requirements and
the requirements of sections 58500-58512.

                To conclude that the Board has a role in the Superintendent's decision would be
contrary to the unambiguous wording of section 58509 and would require the insertion of words in the
statute not contained therein. "[A] statute `. . . is to be interpreted by the language in which it is
written, and the courts are no more at liberty to add provisions to what is therein declared in definite
language than they are to disregard any of its express provisions.' [Citation.]" (Wells Fargo Bank v.
Superior Court (1991) 53 Cal.3d 1082, 1097; cf. Salazar v. Eastin (1995) 9 Cal.4th 836, 856-860 [State
Board of Education may not adopt regulations defining "indigence" for home-to-school transportation
since the Legislature specifically gave such authority to local school districts].)

                Accordingly, we conclude that the Board has no role in the waiver of Education Code
provisions by the Superintendent for the operation of alternative schools.

                                               *****




                                                   6.                                           95-910

