Settlement Addresses Discriminatory Treatment of Minority Students and Students with Disabilities

February 2019
Number 11

A settlement agreement was recently reached between the California Department of Justice (DOJ) and the Stockton Unified School District (District) to address discriminatory treatment of minority students and students with disabilities. The agreement resolves a comprehensive investigation conducted by the DOJ, which found that the District’s policies and practices with respect to law enforcement referrals discriminated against African-American and Latino students as well as students with disabilities.

According to the investigation, it identified certain practices by the District which led to students being criminalized for minor misconduct. These practices included:

  • Using law enforcement for minor disciplinary infractions that are more appropriately the responsibility of school administrators and teachers;
  • Operating a canine inspection program where canines were brought to school sites on a random and suspicionless basis and students were directed to leave their belongings in the classroom without their consent to be sniffed by canines. Though the District’s Board Policy included that students could not be required to leave their belongings, the investigation by the DOJ found that in practice, students had no choice;
  • School administrators conducting classroom-wide random, suspicionless pat-down searches of students’ persons;
  • Having law enforcement cite or book students for truancy or disturbing the peace violations;
  • School administrators not being properly trained in and utilizing de-escalation techniques for preventing student behavior that may lead to the use of physical restraints; and
  • Failing to ensure effective communication in the context of law enforcement investigations for students who are hard-of-hearing or deaf.

To address these concerns by the DOJ, the parties worked cooperatively to agree on an extensive five-year plan memorialized in a stipulated judgment that requires the District to create clear policies and procedures with respect to how and when school administrators refer students to law enforcement as well as a formal diversion program to address minor school-based criminal offenses which will minimize arrests, citations and bookings. A copy of the proposed judgment can be viewed here. The agreement also calls for the revision of policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, including hiring a disability coordinator at the police department that will ensure compliance with disability laws and creating a protocol for school site administrators to refer students who exhibit mental health indicators to services rather than to law enforcement. Additionally, the District agreed to train all officers (in this case, the officers were employees of the District’s Police Department) on crisis-intervention as well as provide extensive training on the constitutional and civil rights of all students. Lastly, the District agreed to track and analyze all arrests and referrals of students to law enforcement, and create a community advisory committee for oversight.

The takeaways from this agreement can be summarized as follows:

  • Districts should review their policies with respect to how and when school site administrators refer students to law enforcement and consider creating a diversion program for minor, school-based criminal offenses;
  • Districts should review their policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, and may consider hiring a trained disability coordinator to ensure compliance with disability laws;
  • Districts should review their current search and seizure policies to make sure they conform with current laws and constitutional standards.

For more content related to school safety and School Resource Officers, check out this episode of Lozano Smith’s podcast.

If you have any questions regarding this settlement agreement or student rights issues in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

Benjamin Brown

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Advertisements

Federal Agencies Withdraw Previously Issued Guidance On The Nondiscriminatory Administration Of School Discipline

February 2019
Number 9

The United States Department of Education’s Office for Civil Rights (OCR) and Department of Justice (DOJ) have withdrawn their 2014 joint Dear Colleague Letter (DCL) on Nondiscriminatory Administration of School Discipline, which provided recommendations and guidance on remediating disproportionate student discipline of minority and disabled students. The stated justification for the agencies’ reversal is that implementation of the 2014 DCL resulted in schools easing up on punishment for student misconduct and contributed to rising violence in the nation’s schools.

Background: 2014 DCL

In 2014, under the Obama administration, the non-binding discipline guidance DCL (See 2014 Client News Brief No. 7] was published pursuant to the OCR’s responsibilities for implementing Title VI of the Civil Rights Act of 1964 and the DOJ’s responsibilities for implementing Title IV of the Civil Rights Act of 1964, respectively. The stated goal of the 2014 DCL was to break or slow the cycle known as the school-to-prison pipeline, by prodding schools to reduce the number of suspensions and expulsions, especially for students of color and students with disabilities which data shows are disciplined at disproportionately high rates. The 2014 DCL set forth guidelines for measuring for disproportionality in the discipline of minority students and students with disabilities, and recommended practices for reducing or eliminating such disproportionality. The 2014 DCL also included instructions on how to “reduce disruption” without discriminating against students according to “personal characteristics,” as well as guidelines for designing school discipline-related policies and practices which emphasize alternatives to suspension and expulsion.

Guidance Withdrawn

In 2018, U.S. Department of Education Secretary Betsy DeVos led a new Federal Commission on School Safety, established after the deadly school shooting at Marjory Stoneman Douglas High School in Parkland, Florida. The new commission’s task was to study and make recommendations regarding several issues, including violence prevention strategies. On December 18, 2018, the commission recommended the rescission of the 2014 DCL, along with other associated documents, including:

The commission reasoned that states and local school districts should play the primary role in establishing educational policy, including how to handle specific instances of student misconduct and discipline, and ensuring that classroom teachers have the support they need to implement such local policies. OCR and the DOJ adopted the commission’s recommendations.

Takeaways

The rescission of the non-binding 2014 DCL and related federal guidance does not change any federal civil rights laws. It also does not change states’ or school districts’ obligation to administer school discipline in a non-discriminatory way, whether as a matter of federal or state law. School districts that continue to find value in the now-withdrawn guidance documents may continue to refer to and utilize that guidance and recommended policies and practices as they see fit.

If you have any questions about the guidance rescission, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Marisa Montenegro

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Supreme Court To Decide Whether Local Agencies Can Recover Costs Associated With Redacting Video Footage Under The Public Records Act

February 2019
Number 8

Rarely are state and local government agencies permitted to charge for the labor that goes into responding to a California Public Records Act (CPRA) request. In National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937, the First District Court of Appeal held that the City of Hayward was entitled to reimbursement of costs associated with necessary redactions of body camera footage to produce the non-exempt portions of footage requested under the CPRA. This case is now pending before the California Supreme Court, which will be deciding this case in light of the increased availability of law enforcement records under Senate Bill 1421. For more information on SB 1421, please see 2018 Client News Brief No. 60. The outcome of the Supreme Court’s decision will likely establish significant rules regarding the accessibility of public records in video
format.

Background

Historically, the bulk of the costs to comply with the CPRA are borne by the local agency. As technology advances and the ability to retain and access information advances with it, the cost of producing documents has increased in many cases. Under previous case law, public agencies were allowed to charge requestors for an extremely narrow subset of their direct costs. Under the Court of Appeal decision, the City of Hayward would have been able to recover “the City’s actual expenditures to produce a copy of the police body camera video recordings.” This rule would have represented a significant change in the scope of costs that can potentially be recovered. This rule is now on hold until the California Supreme Court decides the issue.

National Lawyers Guild v. City of Hayward

The National Lawyers Guild requested six hours of police body camera footage from a protest in the City of Hayward. In order to comply with the request, the City determined that it needed to purchase a special program to redact confidential sections of the footage, and asked the National Lawyers Guild to bear the cost of the software; this litigation ensued. In the end, the court required the National Lawyers Guild to pay for the costs associated with the redactions. The court explained that:

“For electronic records… the statute allows an agency to recover specified ancillary costs in either of two cases: (1) when it must “produce a copy of an electronic record” between “regularly scheduled intervals” of production, or (2) when compliance with the request for an electronic record ‘would require data compilation, extraction, or programming to produce the record.’ (§ 6253.9, subd. (b)(1), (2); see 88 Ops.Cal.Atty.Gen., supra, at p. 164.) Under those circumstances, the agency may charge the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record. (§ 6253.9, subd. (b).)”

In reviewing the legislative history of the statute, the Court of Appeal reasoned that when an agency “must incur costs to acquire and utilize special computer programming…to extract exempt material from otherwise disclosable electronic public records” the public agency could be reimbursed. The court recognized that lawmakers made a special exemption for processing electronic records because the efforts needed to redact electronic records would greatly exceed those associated with paper records.

Interestingly, the court did not limit cost recovery to extracting exempt material but stated that allowable costs under Government Code section 6253.9, subdivision (b), include the “City’s actual expenditures to produce a copy of the police body camera video recordings” along with the ability to recover costs for extracting exempt material. If the Court of Appeal decision is allowed to stand, the court’s reasoning could theoretically be expanded to support the recovery of costs whenever an electronic record must be altered to comply with a request.

Takeaways

The decision by the Court of Appeal highlights the importance of informing requesting parties that they may be responsible for the costs associated with video footage, and to work out the terms of payment for such work before the redactions are made.

Pending the outcome of the California Supreme Court’s decision, agencies impacted by costly requests for electronic records in need of redaction should consult with legal counsel to evaluate potential cost recovery.

We will issue an update once this case is ultimately decided. If you have any questions about the National Lawyers Guild decision or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Manuel F. Martinez

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Sunshine Laws To Begin Shining On Charter Schools: Charter Schools Subject To Public Transparency Laws

January 2019
Number 7

The California Attorney General recently issued a long-awaited opinion addressing the applicability of certain “sunshine” laws to charter schools. Specifically, the Attorney General concluded that California charter schools and their governing bodies are subject to the Ralph M. Brown Act (Brown Act), the California Public Records Act (Public Records Act), Government Code section 1090 and the Political Reform act of 1974. The opinion further states that the books and records of schools chartered by either a school district or a county board of education are subject to review and inspection by a grand jury.

Background

By design, California charter schools are explicitly exempt from many laws that apply to school districts. However, the laws addressed by the Attorney General opinion are some of the broadest public integrity laws in the state, and have never explicitly exempted charter schools. It should be noted that the request for this opinion was made seven years ago. It is our understanding that the Attorney General was waiting for the Legislature to answer these questions. Under Governors Schwarzenegger and Brown, the Legislature adopted bills stating that charter schools did need to comply with the Brown Act, Public Records Act, and conflicts of interest laws, only to have such bills vetoed by both Governors.

The Ralph M. Brown Act and the California Public Records Act

The Brown Act guarantees the public’s right to attend and participate in meetings of local legislative bodies. The Public Records Act establishes that the records of public agencies generally must be disclosed to the public when requested. The majority of charter school petitions in California state that the school will comply with the Public Records Act and Brown Act. However, prior to this opinion, there was frequent debate as to whether charter schools were, in fact, required by law to comply with these Acts.

In answering the question, the Attorney General observed that the Education Code contains a section establishing charter schools as school districts. Interpreting this principle liberally, the Attorney General determined that both Acts apply to charter schools in the same way that they apply to school districts or other local public agencies. The Attorney General’s reasoning was that both charter schools and school districts rely on public money. Therefore, both have an obligation to be transparent.

Government Code Section 1090

Government Code section 1090 is a broad prohibition against self-dealing in public contracts by public officials. Over time, the scope of section 1090 has expanded to include any agency or public official of the state. However, whether this conflict of interest law is applicable to charter schools has been the subject of significant debate over the past several years. Relying on prior case law, the Attorney General opined that the term “any agency or official” should be liberally interpreted to include charter schools and their officials. Therefore, members of charter schools’ governing boards should be deemed to be public officials in the meaning of section 1090, and are subject to the provisions of the statute.

Political Reform Act of 1974

The purpose of the Political Reform Act is to ensure that public officials perform their duties with impartiality and disclose any financial interests which may impact their vote. In 1998, the Fair Political Practices Commission (FPPC), which is charged with interpreting the Political Reform Act, concluded that board members of a charter school’s nonprofit corporation were subject to the Political Reform Act’s provisions on conflicts of interest. The Attorney General, in this opinion, gives deference to the FPPC in its decision that the governing body of a charter school that is organized as a corporation is subject to this law. Due to the prior FPPC opinions on this issue, many of California’s charter schools already operate in compliance with the Political Reform Act.

Books and Records in Grand Jury Proceedings

Generally, the books and records of school districts and county boards of education are subject to review during grand jury proceedings in accordance with California Penal Code section 933.6. The Attorney General opinion concludes that “any nonprofit corporation established by or operated on behalf of a public entity” which includes any charter school chartered by a local school district or county board of education, is subject to section 933.6.

However, the opinion concludes that charter schools that are chartered by the State Board of Education are not subject to grand jury review. This is because the State Board of Education is considered a state agency and not a local public entity for purposes of section 933.6. While these charter schools’ books and records would not be subject to grand jury proceedings, they would still be subject to audit by the California State Auditor.

Takeaways

In summary, the Attorney General’s long-awaited opinion states definitively that public integrity laws applicable to other local educational agencies are also applicable to charter schools. While Attorney General opinions are advisory, and not binding, they provide guidance and insight as to how a court could interpret various issues, and therefore are given great deference.

As a result, this opinion will likely prompt stricter adherence by charter schools with laws from which some have argued exempted charter schools. Moving forward, charter schools should independently conform their policies and practices to the Attorney General’s guidance that these laws apply to them. Additionally, an authorizing school district or county board of education should evaluate, and amend if necessary, its policies and procedures to ensure its charter schools’ compliance with these laws as part of the authorizer’s oversight responsibilities.

For additional information regarding the Attorney General’s opinion and its potential impact on charter schools and school districts, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Gayle L. Ketchie

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Employees’ Representation Rights Now Expand Beyond Oral Interviews

January 2019
Number 6

Three recent decisions by the Public Employment Relation Board (PERB) have expanded or highlighted employees’ rights to union representation when employees are asked to prepare a written statement or are searched unclothed.

Written Statements

In San Bernardino Community College District (2018) PERB Dec. No. 2599, PERB expanded the right to union representation to those circumstances where an employee is asked to provide a written statement. In this case, an employee was questioned by a community service officer (CSO) in the District’s police department concerning the employee’s location during the employee’s work shift. After verbally answering the CSO’s questions, the employee requested a union representative. The CSO agreed that the employee had a right to a union representative, but directed the employee to draft a written statement before he was relieved of duty. In its decision, PERB reiterated the rationale for the right to union representation in an investigatory interview, explaining:

The right to representation in an investigatory interview is based on the following rationale: A single employee confronted by an employer investigating whether certain conduct deserves discipline may be too fearful or inarticulate to relate accurately the incident being investigated, or too ignorant to raise extenuating factors. A knowledgeable union representative could assist the employer by eliciting favorable facts, and save the employer production time by getting to the bottom of the incident occasioning the interview.

PERB rejected the employer’s argument that the right to union representation only attached during an oral interview. Instead, PERB held that the right extended to a written statement as well because the employee reasonably believed that his written statement, like a verbal statement, could also be used for disciplinary purpose.

In County of San Joaquin (Sheriff’s Department) (2018) PERB Dec. No. 2619, PERB ordered the employer to rescind and expunge the disciplinary action taken as a result of the employee’s insistence on union representation at a meeting with his supervisor where the employee was asked to prepare a written statement. The employee made repeated requests for union representation, but was denied. The employee’s refusal to prepare the written statement without union representation escalated into an internal affairs investigation for insubordination, which concluded in discipline. PERB held that an employee is entitled to union representation prior to providing a written statement which the employee reasonable believed could result in disciplinary action, and that absent his request for union representation the employee would not have been disciplined. PERB also took the additional step of ordering the employer to rescind and expunge the disciplinary action taken as a result of the employee’s insistence on union representation.

Body Searches

InState of California Department of Corrections & Rehabilitation (2018) PERB Dec. No. 2598, PERB expanded the right to union representation to include unclothed body searches. In this case, the employer was tipped off by an inmate claiming that the employee was going to bring narcotic powder into the prison. A criminal investigation was initiated, during which the employee was told that the investigators would search her bags, vehicle, and person. The employee consented to the search of her bags and vehicle, but when the employee was told to remove her clothes for an unclothed body search, the employee demanded the presence of a union representative, a supervisor, or someone from peer support. The employer denied the employee a right to union representation twice on the basis that (1) she was “only being searched, not questioned,” and (2) she signed a consent-to-search form when she was first hired. PERB held that an invasive search of an employee’s person, including an unclothed body search, is the type of investigatory meeting which gives rise to the right to union representation. Further, PERB held that if an employer rejects an employee’s request for union representation, the employee cannot be found to have voluntarily waived his or her right to union representation. Moreover, an employee does not waive his or her right to union representation by signing an acknowledgement of the employer’s rule that he or she is subject to search at any time while on the employer’s grounds.

This case further emphasizes that PERB believes employees’ rights to union representation extend beyond oral questioning. Further, PERB is protective of employees when interpreting the waiver of employees’ rights to union representation.

Takeaways

These three cases demonstrate that PERB believes a public employee has a right to union representation when an employer conducts an invasive search or requires an employee to prepare a written statement that may lead to discipline. In light of these cases, public employers should evaluate their investigation procedures and directives. When an investigation calls for an invasive search, or an employee is directed to prepare a written statement which could lead to the discipline of the employee, public employers should provide employees the right to union representation.

For additional information regarding the three PERB decisions, please contact the authors of this Client News Brief, an attorney at one of our eight offices located statewide, or an attorney in Lozano Smith’s Investigative Services team. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Dulcinea Grantham

Partner

Jayme A. Duque

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

New OCR Case Processing Manual – Significant Changes For Public School Civil Rights Enforcement

January 2019
Number 5

The U.S. Department of Education’s Office for Civil Rights (OCR) made a second round of revisions to its Case Processing Manual (CPM), effective November 19, 2018. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws which it enforces. The CPM last underwent revisions in March of 2015 and March of 2018. The most recent changes are wide ranging and include how OCR will evaluate, investigate and resolve complaints. Key revisions include the following:

  • Requires OCR to interpret its statutes and regulations consistent with the requirements of the First Amendment, and to comport with the First Amendment when investigating and resolving complaints. This means that
    OCR will not interpret any statute or regulation to impinge upon rights protected under the First Amendment or to require recipients to encroach upon the exercise of such rights;
  • Restores appeals for complainants, who can appeal findings of insufficient evidence, as well as certain types of dismissals, and provides recipients with the opportunity to respond to appeals;
  • Eliminates section 108(t) from the earlier CPM, which had provided that OCR would dismiss a complaint that is part of a pattern of complaints that places an unreasonable burden on OCR’s resources; and
  • Requires OCR to have more than statistical data alone to warrant opening an investigation. Statistical data can be considered with other facts and circumstances to support the opening of an investigation.

The November 2018 CPM revision also retained several important changes fromits March 2018 revision such as:

  • Investigation and resolution activities must focus on the individual allegation(s) stated by the complainant;
  • OCR will undertake systemic investigations only where it is appropriate to do so in light of the allegations or based on facts ascertained in the investigation; and
  • A focus on increased opportunities for the resolution of complaints through the Rapid Resolution Process (RRP) and the Facilitated Resolution Between the Parties (FRBP) process, which permit the parties to resolve a complaint themselves with OCR’s facilitation.

Lastly, OCR is implementing post-case closure Quality Assurance Reviews to assure consistency and quality in case processing among the 12 regional OCR offices. OCR will use the reviews to identify areas where further internal training is necessary, and to identify and share best practices among its regional offices.

Takeaways

The revised CPM will likely impact current and future investigations conducted by OCR. School districts can also expect OCR to be more receptive to defenses to complaints of bullying, discrimination, harassment etc., where the defense is based on free speech. While it is unclear how each regional office will interpret the changes to the CPM, school districts currently dealing with a civil rights complaint investigated by OCR should consult with counsel to determine whether the revisions are relevant to the matter.

For additional information regarding OCR’s November 2018 CPM revision, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner

Brenda E. Arzate

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Bid Thresholds Raised For 2019

January 2019
Number 4

According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $92,600, effective January 1, 2019. The notice may be viewed here.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services (except construction services), pursuant to Public Contracts Code section 20651(a), sometime in the next few days. Once released, that information will be available here.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed above.

On a related note, the Legislature increased the bid limits under the California Uniform Public Construction Cost Accounting Act (CUPCCAA), effective January 1, 2019. (See 2018 Client News Brief No. 47) The increase in the bid limits affects school districts, cities, counties and all other public entities that have adopted CUPCCAA.

For more information on the new bid limits or bidding in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Ruth E. Mendyk

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.