Anne Ogden, Individually and o/b/o minor child v. St. Tammany Parish School Board, W.L. Folse, III, in his capacity as Superintendent, St. Tammany Parish Schools

vSTATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0610

ANNE OGDEN, INDIVIDUALLY AND OB/ O MINOR CHILD

VERSUS

ST. TAMMANY PARISH SCHOOL BOARD, W.L. FOLSE, III,
IN HIS CAPACITY AS SUPERINTENDENT,
ST. TAMMANY PARISH SCHOOLS

FEB 2 0 20?0
Judgment Rendered:

APPEALED FROM THE TWENTY-SECOND JUDICIAL DISTRICT COURT
IN AND FOR THE PARISH OF ST. TAMMANY
STATE OF LOUISIANA
DOCKET NUMBER 2018- 11379, DIVISION " A"

HONORABLE RAYMOND S. CHILDRESS, JUDGE

Charles N. Branton Attorney for Plaintiff/Appellant
Covington, Louisiana Anne Odgen, Individually and o/ b/ o
Minor Child

David S. Pittman Attorneys for Defendants/ Appellees
Shane A. Jordan St. Tammany Parish School Board
Covington, Louisiana and W.L. Folse, III, in his capacity
as Superintendent, St. Tammany
Parish Schools

BEFORE: McDONALD, THERIOT, AND CHUTZ, JJ.

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McDonald, J.

This case involves the interpretation and application of the Immersion

School Choice Law, La. R. S. 17: 273. 3. On March 22, 2018, the plaintiff, Anne

Ogden, filed suit individually and on behalf of her minor child, a rising

kindergarten student in St. Tammany Parish, naming as defendants the St.

Tammany Parish School Board ( STPSB) and W.L. Folse, III, in his capacity as

Superintendent of St. Tammany Parish Schools. Ms. Ogden asked for declaratory

judgment, injunctive and incidental relief, and an expedited hearing, and prayed

that the defendants be ordered to create a French immersion program in time for

the 2018- 2019 school year and to hold open enrollment for the 2018- 2019 school

year. After a trial on the merits, the petition was denied and the suit was dismissed.

After review, we dismiss the appeal in part as moot, reverse the judgment in part,

and grant a permanent injunction.

FACTS AND PROCEDURAL HISTORY

Louisiana Revised Statute 17: 273. 3 was enacted in 2013, and has been

amended several times.' The statute notes that ( 1) research indicates that students

who participate in foreign language immersion programs, particularly French,

demonstrate greater levels of proficiency in the English language, higher overall

academic achievement, and higher levels of self-esteem; ( 2) learning a second

language has a positive effect on intellectual growth and increased awareness of

diverse cultures through access to history, art, and literature; ( 3) students in foreign

language immersion programs have been shown to demonstrate enhanced

cognitive functions in solving complex problems and mathematical computations

We refer to the version of the statute in effect between July 1, 2014, and July 31, 2018. After the

petition was filed, La. R. S. 17: 273. 3 was amended by Acts 2018, No. 622, § 1, effective August 1, 2018.
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through the development of more divergent and higher order thinking skills; and

4) in Louisiana, French language development and French language immersion

programs, in particular, provide a better understanding of the state' s social

traditions and serve to promote, preserve, and develop our unique bilingual culture.

La. R.S. 17: 273. 313.

The statute further provided that local public school boards may establish a

foreign language immersion program, beginning with the 2014- 2015 school year,

if requested in writing by the parents or legal guardians of at least twenty- five

students seeking to be enrolled in kindergarten or of at least twenty- five students

seeking to be enrolled in first grade who resided within the jurisdictional

boundaries of the school district. La R.S. 17: 273. 3C( 1) and ( 2)( a). The parents or

legal guardians of the students were required to commit in writing to the program,

and the written requests had to be submitted to the local school board not later than

March first prior to the school year in which the program is to be established. La.

R.S. 17: 273. 3C( 2)( a)( i) and ( ii).

In her petition, Ms. Ogden alleged that she, along with the parents of 62

other minor children, had petitioned the St. Tammany Parish School System to

create a French immersion program for the 2018- 2019 school year. Ms. Ogden

asserted that in August 2017 she met with Regina Sanford, assistant superintendent

of the St. Tammany Parish Middle School, State Representative Reid Falconer, Bill

Arceneaux and Peggy Feehan of CODOFIL, and Michelle Braud of the Louisiana

Department of Education. Ms. Odgen maintained that at the meeting, she made

her request for a French language immersion program officially known to the

STPSB. Thereafter, on November 29, 2017 Ms. Sanford sent Ms. Ogden an email

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indicating that the French language immersion program would require more

planning than originally believed, and thus, the STPSB could not commit to adding

the program for the next school year.

Ms. Ogden asserted that "[ o] nce the [ STPSB] declined to voluntarily start a

French Immersion program the parents of St. Tammany had no choice but to

invoke their rights pursuant to the Immersion School Choice Law." Ms. Ogden

maintained that she presented the petition executed by 36 parents of rising

kindergarten students and 27 rising first grade St Tammany Parish Students to the

STPSB on February 8, 2018 ( 20 days prior to the deadline set out by the

Immersion Choice Law). Thereafter, the STPSB indicated it would have to verify

the petitioners. The STPSB created a form entitled " WRITTEN REQUEST AND

STUDENT OBLIGATION FOR [ ESTABLISHMENT] OF A FRENCH

LANGAGE [ sic] IMMERSION PROGRAM," which was provided to Ms. Ogden

on February 20, 2018. She maintains that she was told to distribute the form and

ensure its execution and return it to the STPSB by March 1, 2018. Ms. Ogden

asserts that the form required parents to waive their right to go to their local school

without disclosing where the French immersion program would be held, and that

the STPSB refused to provide bus transportation. Ms. Ogden also asserted that

implicit in the form is an indication that the STPSB will create only one

kindergarten French immersion program and one first grade French immersion

program, regardless of the number of applications, and that the STPSB would

create a lottery system if there were over 25 students in a grade, and would

terminate the program if there were less than 20 students.

Ms. Ogden prayed that the defendants show cause why the French

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immersion program should not be created as requested, why enrollment should not

remain open for the 2018- 2019 school year until August 9, 2018, why declaratory

judgment should not issue recognizing petitioners' interest in the creation of the

program and recognizing their right to have their children enrolled in a French

immersion program for the 2018- 2019 school year, why any type of waiver form

should not be enjoined, and for such other relief as prayed for or found reasonable,

be granted.

The defendants filed exceptions of improper use of summary proceedings,

no cause of action, no right of action, lack of subject matter jurisdiction, and an

opposition to the request for injunctive relief. The defendants also filed an answer

to the petition.

The exceptions of improper use of summary proceedings, no cause of action,

no right of action, and lack of subject matter jurisdiction were heard on May 14,

2018. On June 1, 2018, the trial court signed written reasons for judgment denying

the exceptions of no right of action and no cause of action and granting the

exception of improper use of a summary proceeding. The trial court found that a

hearing on the merits was necessary for the court to arrive at a decision regarding

the responsibility of the STPSB in establishing the French immersion program.2

The case went to trial on July 30, 2018. At the close of trial, the court took

the matter under consideration. Thereafter, the trial court signed a judgment on

September 10, 2018, denying Ms. Ogden' s claims and dismissing the suit against

the defendants with prejudice.

In its reasons for judgment, the trial court found in part:

2 White the written reasons for judgment state that "[ a] Judgment consistent with these reasons will be
signed when it is presented to the Court", no judgment on the exceptions is found in the record on appeal.
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Plaintiff seeks a declaration prohibiting the requirement of a parental
waiver form designed and utilized by the " STPSB" to ensure that the
statutory requirements have been met in order to move forward with
the Immersion Program. The Court concludes that the " STPSB" acted

within its authority to require a written commitment from the
statutorily designed number of affected parents.

Anne Ogden and Jean Craddock are parents who seek to have
the " STPSB" establish a Foreign Language Immersion Program,
particularly French, for the 2018- 2019 school year. Pursuant to [ La.
R. S.] 17: 273 et seq, a local school board, if requested in writing by
parents or legal guardians of at least twenty-five students seeking to
be enrolled in kindergarten, or twenty- five students seeking to be
enrolled in first grade, who reside within the district, shall establish a
Foreign Language Immersion Program as long as 5 enumerated
requirements are met. Mrs. Ogden notified the " STPSB" in 2017 of
her interest in, and request for, a French Immersion Program.

Dr. Regina Stanford, Assistant Superintendent For Curriculum,
spoke with Mrs. Ogden and State Representative Reid Falconer about
establishing such a program. On October 24, 2017, she visited
Lafayette in order to observe that French Immersion program. By
November 29, 2017, Dr. Sanford informed Mrs. Ogden that due to
logistical issues, the " STPSB" could not commit to such a program on
a voluntary basis. That decision was made by Superintendent " Trey"
Folse and Dr. Sanford.

Thereafter, Mrs. Ogden created a petition, or interest survey on
Facebook, to inform parents and determine interest in the French
Immersion program. On February 8, 2018, which is 20 days before
the deadline set forth in the statute, the parents of 36 rising
kindergarten students and 27 rising first grade students executed the
petition which was then presented to the " STPSB," along with a copy

of the statute and all necessary documentation ( proper funding per the
Louisiana Department of Education, and a CODIFIL letter confirming
the availability of French Immersion instructors.) Of the interested
parents, only 17 kindergarten parents and 16 first grade parents were
committed " yes", which falls short of the 25 commitments per grade
level as required by statute.

In response, the " STPSB" created a new form (Plaintiff Exhibit
4, Defense Exhibit 3) to be filled out by each parent verifying their
interest and domicile. The form was sent to Mrs. Ogden and she was
told to circulate it and have the parents sign and return by March 8,
2018. The form added a further requirement not found in the [ statute] :
parents were required to waive their rights to go to their local school,
without the " STPSB" disclosing the location of the Immersion
program. Parents were further informed that the " STPSB" would

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unilaterally choose the location, based on availability of the school
rather than on the location of the petitioning parents. This could be
across the parish, with no bus transportation. When only 22
Kindergarten parents and 12 First grade parents returned the verified
applications, the " STPSB" declined to create the French Immersion
program.

The petition seeks to test the authority of the " STPSB" to utilize
the application form. Although the requirements contained in the
form are onerous, they are a reflection of the statutory requirements,
and are necessary for any school board to make the commitment
necessary to create a Foreign Language Immersion Program. For the
2017- 2018 school year, there are not the requisite commitments.
Should the requisite number of students commit to the program in
future years, the " STPSB" must comply with the requirements of [La.]
R.S. 17: 273. 3.

Ms. Ogden appealed the judgment. She makes two assignments of error on

appeal. In her first assignment of error Ms. Ogden maintains that the trial court

erred in denying her claims that enough students, through their parents, had

notified the school system in a timely fashion so that the French immersion

program should have been created for the 2018- 2019 school year. In her second

assignment of error, Ms. Ogden maintains that the trial court erred in failing to find

that the school board' s form was improper, as it contained conditions that are not

authorized under Louisiana law.

LOUISIANA REVISED STATUTE 17: 273. 3

At the pertinent time, La. R.S. 17: 273. 3 provided:

A. This Section shall be known and may be cited as the " Immersion
School Choice Law".

C. ( 1)
Any local public school board may establish a foreign language
immersion program in any school under its jurisdiction that shall be
open to the enrollment of any student who resides within the
jurisdictional boundaries of the school district.

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2)( a) Beginning with the 2014- 2015 school year, a local school
board, if requested in writing by the parents or legal guardians of at
least twenty- five students seeking to be enrolled in kindergarten or of
at least twenty- five students seeking to be enrolled in first grade who
reside within the jurisdictional boundaries of the school district, shall
establish a foreign language immersion program for such students,
provided that all of the following apply:

i) The parent or legal guardian of each student commits, in writing,
that the student will participate in the program.

ii) The requisite number of written requests are submitted to the local
school board not later than March first prior to the school year in
which the program is to be established.

iii) The minimum foundation program formula provides funding to
local school systems employing foreign language teachers to provide
salary supplements for such teachers at a level equal to or greater than
the level of funding provided for this purpose through such formula
for the 2011- 2012 fiscal year.

iv) A sufficient number of foreign language teachers with the
required credentials as prescribed by the State Board of Elementary
and Secondary Education are available through programs
administered by the Department of Education and the Council for the
Development of French in Louisiana to establish the program.

v) There is no existing foreign language immersion program offered
by the local school board, in the same foreign language being
proposed, that has been certified by the State Board of Elementary and
Secondary Education pursuant to R.S. 17: 273. 2.

b) Such program shall be continued as long as at least twenty
students remain enrolled in the program.

c)
The local school board shall ensure that any foreign language
immersion program established pursuant to this Section is designated
as a Certified Foreign Language Immersion Program by the State
Board of Elementary and Secondary Education in accordance with
R.S. 17: 273. 2 within three years from the date such program is
established.

D. Notwithstanding any provision of R.S. 17: 158 to the contrary, a
local school board shall not be required to provide transportation to
any student enrolled in a foreign language immersion program
established pursuant to this Section that is located outside of the
attendance zone of the school the student would otherwise attend, if

providing such transportation would result in additional transportation
costs to the school system.

E. A local public school board shall not deny enrollment in a foreign
language immersion program to any student if all of the following
conditions are met:

1) The minimum foundation program formula provides funding to
local school systems employing foreign language teachers to provide
salary supplements for such teachers at a level equal to or greater than
the level of funding provided for this purpose through such formula
for the 2011- 2012 fiscal year.

2) A sufficient number of foreign language teachers with the required
credentials as prescribed by the State Board of Elementary and
Secondary Education are available through programs administered by
the Department of Education and the Council for the Development of
French in Louisiana to accommodate all interested students in the
program.

3) The student resides within the jurisdictional boundaries of the
school district.

4) The student applies for enrollment in such a program by no later
than April fifteenth of the school year prior to such enrollment.

5) If the student is entering second grade or above, he is sufficiently
proficient in the target language or is transferring from a certified
foreign language program in another Louisiana school district.

F. The requirements of Subparagraph ( C)( 2)( b) and Subsection E of
this Section shall apply to a foreign language immersion program
established prior to the 2012- 2013 school year. The local school board
shall ensure that such program is designated as a Certified Foreign
Language Immersion Program by the State Board of Elementary and
Secondary Education in accordance with R.S. 17: 273. 2 by not later
than July 1, 2017.

G. Nothing in this Section shall contravene any order of a court of
competent jurisdiction providing for the assignment of pupils within
the school system.

ASSIGNMENT OF ERROR NO. 2

In this assignment of error, Ms. Ogden maintains that the trial court erred in

failing to find that the STPSB' s form was improper as it contained conditions not

9

authorized under Louisiana law.

Because this matter involves the interpretation of a statute, it is a question of

law, and is thus reviewed by this court under a de novo standard of review. Red

Stick Studio Development, L.L.C. v. State ex rel. Dept. of Economic

Development, 2010- 0193 ( La. 1/ 19/ 11), 56 So. 3d 181, 187.

Louisiana Revised Statute 17: 273. 3C( 2)( a)( i) provides that the parent or

legal guardian of each student must commit, in writing, that the student will

participate in the foreign language immersion program. The STPSB needs to

ascertain that there is a firm commitment to the French immersion program before

they embark upon funding the program, hiring the staff, and implementing the

program.

However, while the statute requires a parent to commit to the French

immersion program, it does not provide for an irrevocable commitment. It does

not set forth the length of the commitment, and it provides no penalty if the student

withdraws from the immersion program. Further, the fact that La. R. S.

17: 273. 3C( 2)( b) provides the immersion program " shall be continued as long as at

least twenty students remain enrolled in the program" clearly indicates the

legislation anticipated some of the original twenty- five students applying might

withdraw from the immersion program. There are a number of legitimate reasons

why a parent might withdraw a student from the immersion program during the

school year despite their original intent to participate, such as relocation due to job

loss or divorce, a child' s failure to thrive in the program, or a parent' s inability to

continue providing transportation to the program site. This assignment of error has

merit.

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Thus, that portion of the judgment dismissing Ms. Ogden' s request for a

permanent injunction prohibiting the STPSB from requiring an applicant' s

irrevocable commitment to participate in the immersion program is reversed, and

we grant a permanent injunction prohibiting the STPSB from requiring an

applicant' s irrevocable commitment to participate in the immersion program.

ASSIGNMENT OF ERROR NO. 1

In this assignment of error, Ms. Ogden maintains that the trial court erred in

denying her claim that enough students, through their parents, had notified the

school system in a timely fashion so that the French immersion program should

have been created for the 2018- 2019 school year.

It is well settled that a court of appeal may not set aside a trial court's or a

jury's finding of fact in the absence of manifest error or unless it is clearly wrong.

Rosell v. ESCO, 549 So. 2d 840, 844 ( La. 1989). If the trial court or jury's

findings are reasonable in light of the record reviewed in its entirety, the court of

appeal may not reverse, even though convinced that had it been sitting as the trier

of fact, it would have weighed the evidence differently. Sistler v. Liberty Mut.

Ins. Co., 558 So. 2d 1106, 1112 ( La. 1990).

Louisiana Revised Statute 17: 273. 3C( 2)( a) requires that there must be a

request in writing by the parents or legal guardians of at least twenty- five students

seeking to be enrolled in kindergarten or of at least twenty- five students seeking to

be enrolled in first grade who reside within the jurisdictional boundaries of the

school district in order for the local school board to establish a foreign language

immersion program for such students. Further, the parent or legal guardian of each

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student must commit in writing that the student will participate in the program. La.

R.S. 17: 273. 3C( 2)( a)( i).

Our review of the record shows that the parent or legal guardian

commitments per grade fell short of the twenty- five per grade level required by the

statute. We note that the form used by the STPSB requiring an irrevocable

commitment by the parent or legal guardian of the students likely resulted in a

decrease in the number of students committing to the immersion program.

We have already determined that the trial court erred in not granting a

permanent injunction prohibiting the STPSB from requiring an irrevocable

commitment by the parents or legal guardians of the students applying for the

immersion program; however, claims for injunctive and declaratory relief

regarding the 2018- 2019 school year are moot, as that school year has been

completed, and those claims are dismissed.

DECREE

For the foregoing reasons, the trial court judgment, denying Anne Ogden' s

claims individually and on behalf of her minor child, and dismissing the suit

against the St. Tammany Parish School Board and W.L. Folse, III, in his capacity

as Superintendent of St. Tammany Parish Schools, is reversed insofar as it denied a

permanent injunction prohibiting the STPSB from requiring an applicant' s

irrevocable commitment to participate in the immersion program, and a permanent

injunction is granted prohibiting the STPSB from requiring an applicant' s

irrevocable commitment to participate in the immersion program. The claims for

injunctive and declaratory relief regarding the 2018- 2019 school year are

dismissed as moot. Costs of this appeal in the amount of $2, 034. 98 are assessed

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against the St. Tammany Parish School Board and W.L. Folse, III, in his capacity

as Superintendent of St. Tammany Parish Schools.

APPEAL DISMISSED IN PART, AS MOOT; JUDGMENT
REVERSED IN PART; PERMANENT INJUNCTION GRANTED.

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STATE OF LOUISIANA

COURT OF APPEAL

FIRST CIRCUIT

2019 CA 0610

ANNE OGDEN, INDIVIDUALLY AND OB/O MINOR CHILD

VERSUS

ST. TAMMANY PARISH SCHOOL BOARD, W.L. FOLSE, III,
IN HIS CAPACITY AS SUPERINTENDENT,
ST. TAMMANY PARISH SCHOOLS

THERIOT, J., agrees and assigns additional reasons.

I agree with the majority and write separately to add that effective August 1,

2018, La. R.S. 17: 273. 3 was amended by Acts 2018, No. 622, § 1 to include, in

relevant part, a provision providing that "[ t]he local school board shall consider the

location of all students applying for a foreign language immersion program and shall

make reasonable attempts to place the program in schools located near the majority

of the students who applied."