Honig

The California Department of Education (Department) is administered through a State Board of Education (Board), appointed by the Governor and confirmed by the Senate, and an elected Superintendent of Public Instruction (Superintendent). (Cal. Const., art. IX, § 2; Ed. Code, §§ 33000, 33301, 33303.) The Board is “the governing and policy determining body of the department.” (§ 33301, subd. (a).) The Superintendent is vested with all executive and administrative functions. (§ 33301, subd. (b).) Although the statutory division of responsibility for administration of the Department appears clear, its implementation has fostered occasional turf battles between the Board and various Superintendents for more than 70 years. This original proceeding represents the latest skirmish.

The Board seeks a peremptory writ of mandate ordering the Superintendent to implement a series of policies adopted by the Board in September 1990 and April 1991. The Superintendent responds he has voluntarily implemented some of the policies, but argues he is under no clear, present, and ministerial duty to implement any of them.

The policies involve four areas of governance: approval of the…