Juvenile Court School Students Gain New Educational Options

May 2018
Number 18

A new law permits students enrolled in juvenile court schools to voluntarily defer or decline the issuance of a diploma for meeting state graduation requirements so that the student may take additional coursework at the juvenile court school or, once released, at a school operated by a local educational agency (LEA). Assembly Bill (AB) 1124, which went into effect on January 1, amended Education Code section 48645.3 and added Education Code section 48645.7.

Prior law required a county office of education (COE) to issue a diploma to a student who completes the state graduation requirements while attending a juvenile court school and prohibits the COE from requiring the student to complete coursework or requirements in addition to the state requirements. However, students issued a diploma by the juvenile court schools were then ineligible to return to their home schools upon release, as they had already graduated. The bill’s author noted that continued school enrollment provides these students the opportunity to learn additional content and skills, fulfill higher education admissions requirements, and pursue career pathways.

Under this new law, juvenile court school students continue to have the right to a diploma upon completion of state graduation requirements. However, these students now have the additional right to defer the granting of that diploma until release, at which time they can also decline the issuance of a diploma for the purpose of re-enrolling in their home school for further study.

AB 1124 also imposes certain requirements on COEs to ensure that juvenile court school students are informed about their rights under the law. When a juvenile court school student becomes entitled to a diploma for meeting state graduation requirements, the COE must provide the student (or the educational rights holder if the student is not yet 18) and the student’s social worker or probation officer information regarding of the following:

  • The student’s right to a diploma;
  • How taking coursework and other requirements adopted by the COE or continuing education upon release will affect the student’s ability to gain college admission;
  • Transfer opportunities available through California community colleges; and
  • The student’s or the education rights holder’s option to allow the student to defer or decline the diploma and take additional coursework.

The COE is also required to advise the student or education rights holder to consider, when deciding whether to elect or decline the diploma, whether the student is highly likely to enroll in his or her home school, benefit from continued instruction, and graduate from high school.

In addition, AB 1124 authorizes enforcement through the Uniform Complaint Procedures and requires educational agencies to include information regarding the bill in their annual notices.

Takeaways

This bill expands educational options for juvenile court school students and focuses on individualized decision-making for these students. COEs should be aware of their obligations to assist juvenile court school students in this process and all educational agencies should review their annual notifications for appropriate revisions and advise and notify students of their options.

If you have any questions about AB 1124 or about the educational rights of juvenile court school students 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:

Sarah L. Garcia

Partner

Vivian Chen

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.

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California Attorney General Publishes Guide on the Rights of Undocumented Immigrant Students and Families

April 2018
Number 17

The California Attorney General’s Office (AG) has published a comprehensive guide and model policies to equip local educational agencies (LEAs) with information and resources for addressing immigration enforcement actions and also, hate crimes and bullying that target immigrants.

The guide is intended to serve as an instructional tool for LEAs in addressing increased U.S. Immigration and Customs Enforcement (ICE) activity and the impacts of the rescission of the Deferred Action for Childhood Arrivals (DACA) program. (See 2018 Client News Brief No. 9 and 2017 Client News Brief No. 57.) The model policies, which were mandated by Assembly Bill (AB) 699, are intended to serve as a template for LEAs to adopt.

AB 699 requires all school districts, county offices of education, and charter schools to adopt these model policies or equivalent policies by July 1, 2018. ( See 2017 Client News Brief No. 64.) The California School Boards Association has said it would review the model policies once they were made available, and Lozano Smith will monitor the association’s issuance of any new policies that may assist LEAs in complying with this new mandate.

According to the guide, which is titled “Promoting a Safe and Secure Learning Environment for All: Guidance and Model Policies to Assist California’s K-12 Schools in Responding to Immigration Issues,” an estimated 250,000 undocumented children between the ages of 3 and 17 are enrolled in California public schools, and an estimated 750,000 K-12 students in California have an undocumented parent.

The guide is broken down into the following five topics:

(1) Gathering and handling student and family information;

(2) Sharing student and family information;

(3) Responding to requests for access to school grounds for immigration enforcement purposes;

(4) Responding to the detention or deportation of a student’s family member; and

(5) Responding to hate crimes and bullying related to national origin or ethnicity.

Each topic area includes an outline of relevant state and federal protections for students and families, policy recommendations that the AG represents comply with state and federal laws regarding law enforcement actions at public schools, and model versions of the policies that LEAs must adopt by July 1.

The information that may have the most real-world application for LEAs is the guide’s content on responding to requests for access to schools grounds for immigration enforcement purposes. The guide provides LEAs with comprehensive instructions on how to train staff to handle immigration enforcement actions. Specifically, the AG provides guidance on who to notify if an immigration enforcement action takes place and what types of warrants, subpoenas, and court orders are generally used for immigration enforcement. Additionally, the guide recommends appropriate ways for LEAs to handle students whose parents have been detained in an immigration enforcement action.

In addition to providing model policies and an overview of relevant state and federal law, the guide provides a quick reference sheet for school officials; a “Know Your Education Rights” checklist for parents; and samples of federal search and seizure warrants, federal arrest warrants, Department of Homeland Security immigration enforcement subpoenas, and federal judicial subpoenas so that LEAs can be familiar with the different types of orders presented to them and knowledgeable about how they should proceed. The AG’s quick reference guide for school administrators and reference guide for familiesare available as separate documents.

Takeaways

LEAs should familiarize themselves with the AG’s guide for at least two reasons. First, AB 699 requires LEAs to adopt the AG’s policies or policies equivalent to the models in the guide on or by July 1. Second, the guide serves as a comprehensive legal guide to addressing student privacy issues in general while also providing specific, real-life scenarios related to ICE or other immigration-related actions.

Lozano Smith can provide additional guidance on these and other immigration-related issues for our school and community college district clients. If you are interested in receiving additional guidance or have any questions regarding immigration enforcement on school campuses, 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

Nicholas G. Felahi

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.

Court Confirms That Calculation of Level 1 Developer Fees for Apartment Buildings Includes Interior Common Areas

April 2018
Number 16

A California court has confirmed that school districts are authorized to assess Level 1 developer fees against interior common areas of apartment buildings, including hallways and walkways.

School districts have received pushback from developers regarding whether “assessable space” includes interior common areas. With its decision in 1901 First Street Owner, LLC v. Tustin Unified School District, the court has provided districts with legal authority for imposing fees on such space. The court expressly concluded that its analysis is specific to Level 1 developer fees, and not Level 2 or 3 developer fees, which receive separate statutory treatment in the Government Code.

Developer Fees in California Law

School districts are authorized to levy developer fees against residential construction within their boundaries to fund school facilities. Level 1 fees are charged per square foot of “assessable space,” including “all of the square footage within the perimeter of a residential structure.” (Gov. Code, § 65995.) The building department of the city or county issuing the building permit for residential construction is required to calculate Level 1 fees.

Background

In 1901 First Street Owner, LLC v. Tustin Unified School District, a developer of a residential apartment building challenged the city’s calculation of Level 1 developer fees to be paid to the Tustin Unified School District. The city excluded interior common areas from its initial fee calculation, but recalculated the fees when the District objected. The developer objected to this later fee calculation and filed suit.

The developer argued that only individual apartment units, and not interior common areas-including hallways, storage rooms, mechanical rooms, fitness centers, and lounges-could constitute “assessable space . . . within the perimeter of a residential structure” within the meaning of Government Code section 65995(b)(1). The developer relied on section 65995’s indication that a city or county should calculate the space within the perimeter of a structure based on the city’s or county’s “standard practice” for calculating perimeters, and claimed that the city was correct in excluding interior common areas in its calculation. Thus, the developer contended that the calculation of Level 1 fees should exclude interior common areas. The district disputed such exclusion, taking the position that that the city’s calculation correctly assessed the interior common areas along with the individual apartment units.

The court agreed with the district and confirmed that “assessable space” includes interior common areas. The court noted that the statute explicitly lists examples of exterior areas and notably excludes interior common areas from the list. Aside from walkways, the exterior areas listed were typically located at or near the periphery of a residential structure. Therefore, a “walkway” under the statute means an internal walkway and not an interior hallway.

Additionally, the court distinguished the meaning of “standard practice” under Government Code section 65995(b)(1) from the developer’s argument that the city’s “standard practice” was to exclude interior common areas from the calculation. The court stated that, under the statute, “standard practice” meant the city’s calculation of square footage “within the perimeter of a residential structure,” including interior common areas.

Takeaways

In an environment where courts have issued several developer-friendly decisions in recent years, this case can be viewed as good news for school districts. The results of 1901 First Street confirm the position taken by many of our school district clients that interior common areas are properly included in the calculation of Level 1 fees.

As of January 24, 2018, school districts may charge up to $3.79 per square foot of residential development. School districts should ensure that cities calculate Level 1 fees based on the square footage of both individual apartment units and interior common areas.

Lozano Smith’s Developer Fee Handbook addresses imposition of developer fees and related procedures. School districts that have not previously ordered the Handbook or need replacement or additional copies can order the Handbook here or by contacting Client Services at clientservices@lozanosmith.comor (800) 445-9430.

If you have any questions about the court’s ruling or about developer fees 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:

Kelly M. Rem

Partner

Lauren Kawano

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.

Local Agencies May Enact Presentation Requirements for Childhood Sexual Abuse Claims, Court Rules

April 2018
Number 15

The Fifth District Court of Appeal’s opinion in Big Oak Flat-Groveland Unified School District v. Superior Court holds, for the first time, that local agencies may enact local claims procedures under the Government Claims Act which require the submission of claims regarding childhood sexual abuse, despite the general exemption of such claims from the Government Claims Act’s claim presentation requirements and the more forgiving statute of limitations which apply to such claims under the Code of Civil Procedure.

Lozano Smith Litigation Practice GroupCo-Chair Sloan Simmons represented the California School Boards Association (CSBA) and CSBA’s Education Legal Alliance as amicus curiae in this case.

Background

The case involved an alleged childhood sexual abuse victim, Jane Doe, who attempted to sue a school district without first presenting a claim for damages. Childhood sexual abuse claims are exempt from the Government Claims Act’s claim presentation requirements, and based on this exemption, the plaintiff did not present a claim to the district before commencing her lawsuit. The district claimed the lawsuit was barred by the plaintiff’s failure to follow its local claim presentation policy, which the district said it was permitted to establish under a separate provision of the Act. The district argued that despite the Act’s exceptions under Government Code section 905, the plaintiff was still required to present a claim to the district due to the local policy adopted by the district under Government Code section 935.

The appellate court sided with the district, holding that local entities can prescribe their own presentation requirements for exempt claims as long as the local claim presentation period is no shorter than six months. Since the district maintained a local policy prescribing a presentation period of six months after accrual of the cause of action for all exempt claims and the plaintiff did not present her claim to the district within that time period, her suit was barred for failing to comply with the local requirements.

Takeaways

The court’s opinion affirms the underlying purpose for the Government Claims Act: allowing public entities to investigate and remedy harm before litigation ensues and to create internal protections that will prevent future harm. The opinion also serves the public policy that limited public resources should not be spent on litigation that could be avoided, and that public agencies make the best use of their limited resources when they can plan their budgets in advance.

Local public agencies should consider adopting local policies that address exempt claims. For school districts and county offices of education, CSBA’s model Board Policy and Administrative Regulation 3320 contain optional policy language on point. Lozano Smith’s Litigation Practice Group also offers its Government Claims Handbook as a resource for addressing claims under the Act.

The plaintiff in the case recently petitioned the California Supreme Court to review the appellate court’s opinion. The Supreme Court will determine whether to grant review in the coming months.

If you have any questions regarding theBig Oak Flat-Groveland Unified School District opinion, the Government Claims Act, or the adoption of local claim presentation requirements, 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:

©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.

Colleges Have a Duty to Warn or Protect Students from Foreseeable Violence

April 2018
Number 14

Colleges have a legal duty, under certain circumstances, to protect their students from or warn them about foreseeable violence in the classroom or during curricular activities, the California Supreme Court has ruled.

In The Regents of the University of California, et al., v. Superior Court of Los Angeles County, the Court considered whether colleges owe a duty of care to their students to protect them from or warn them about foreseeable violence. This question is critical to determining whether a college acted in a negligent manner when it failed to warn or protect students from foreseeable violence.

Negligence claims require the existence of an underlying duty of care owed the injured party. Where there is no duty of care on the college’s part, a college cannot be held liable for negligence.

Background

A student who displayed increasingly hallucinatory, erratic, and threatening behavior stabbed a fellow student during a chemistry lab. Over the course of that year, the university, which was aware of the student’s psychological issues, had moved him to a different dormitory and then a single room before expelling him from student housing. The university also provided counseling services, urged the student to submit to voluntary hospitalization, concluded he did not meet the criteria for an involuntary hold, and ordered him to return to counseling services. The members of the university’s consultation and response team monitored the student’s behavior and became increasingly concerned when he identified particular students as threats. The day before the stabbing the team scheduled a meeting with the student, but he failed to attend. The university did not otherwise protect or warn students regarding the potential threats.

The Court concluded that colleges have a duty to their students to warn or protect them from foreseeable harm, which arises from the special relationship that exists between the college and its students. The Court opined the college environment is unique. A college provides educational services and community, often at a point in students’ lives when they are learning to navigate the world as adults and are vulnerable and dependent on the college for a safe environment. Colleges have superior control over the environment and also, the ability to protect students by imposing rules, disciplining students, and employing resident advisers, mental health counselors, and campus police. There is also a limited community to whom the duty is owed, namely students and not the public at large. These characteristics all fit within the paradigm of a special relationship between the parties which establishes a duty to warn or protect from foreseeable harm.

A college’s duty to warn and protect students is limited, however, and extends only to activities where the college has some control. The Supreme Court concluded it is reasonable for students to expect that a college will provide some measure of safety in the classroom, and more broadly, in curricular activities.

The Court emphasized that the existence of a duty of care is not equivalent to liability, and that not all violence on campuses can be prevented. Colleges do have a duty to act with reasonable care, however, when aware of a foreseeable threat of violence in a curricular setting.

The Court did not provide any guidance regarding what a college must do to meet this duty of care. Having settled that colleges generally owe a limited duty of care to their students, the case was remanded to the Court of Appeal to determine whether the university had breached its duty of care in this case or was otherwise immune from liability. Thus, whether the university’s response failed to meet its duty to warn or protect, and guidance on what the university should have done and when, remains to be determined by the Court of Appeal.

Takeaways

If community college employees acting within the scope of their employment become aware of student behavioral issues that could rise to the level of foreseeable harm, there is a duty of care which may result in liability if the community college fails to warn or protect students. Community colleges should ensure there are communication channels in place to alert employees responsible for assessing and responding to threatening behavior, and should also review their behavioral intervention protocols.

Though Regents is specific to the college environment, a court could adopt a similar viewpoint toward a school district and its minor students. For more specific analysis in the school district context, contact legal counsel.

If you have any questions about this case or about community colleges’ or school districts’ duty of care to students 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:

Michelle C. Cannon

Partner

Carrie M. Rasmussen

Senior Counsel

©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.

California Adds “Nonbinary” Gender Option to Identification Documents, Impacting All Public Entities

March 2018
Number 13

On October 15, 2017, Governor Jerry Brown signed Senate Bill (SB) 179, known as the “Gender Recognition Act,” which adds a “nonbinary” gender option to state driver’s licenses, identification cards, and birth certificates. Most of this bill’s provisions are set to take effect on September 1, 2018, including a provision allowing an individual to petition a California court to recognize their gender as nonbinary, which would then allow them to subsequently request a new birth certificate reflecting their gender identity.

Public entities will need to address the nonbinary gender option now available to employees and students on official documents. Job application forms will likely require revision to allow the indication of nonbinary gender. Training may be necessary to inform employees about the new law and to re-instruct them about responding appropriately to new job applicants or existing employees who identify with a nonbinary gender, which could be included as part of a public entity’s sexual harassment training. SB 396, also passed in 2017, requires employers with 50 or more employees to conduct training on harassment based on gender identity, gender expression, and sexual orientation. Further, school employees will likely need guidance
on how to address potential issues that may arise on campus regarding nonbinary persons.

SB 179 follows Assembly Bill (AB) 1266, made effective January 1, 2014, which allows students to participate in school programs and activities and use facilities consistent with their gender identity. While AB 1266 is often considered in relation to transgender students, the law itself refers to gender identity, which includes those identifying as nonbinary.

School districts, community college districts, and charter schools should update student forms to ensure the indication of nonbinary gender is available for the 2018-2019 school year. The California Department of Education, in its guidance on AB 1266, states, “when a school district receives documentation that a legal name or gender has been changed, the district must update the student’s official record accordingly.” This would apply to all official student records including a gender designation, including but not limited to enrollment and registrations forms, IEPs, 504 plans, report cards, and transcripts. Districts should also contact their electronic student information system providers to ensure electronic systems are updated accordingly in advance of the 2018-2019 school year.

If you have any questions about the implementation of SB 179, 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:

Dulcinea A. Grantham

Partner

Sarah L. Garica

Partner

Joshua Whiteside

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.

2018 Updates: Annual Notice of Parental Rights and Responsibilities

March 2018
Number 12

California school districts and county offices of education are required annually, at the beginning of each school year, to provide written notice of parental rights and responsibilities. Lozano Smith continuously tracks legislation impacting these notices. The following summarizes changes in California law that call for required or optional updates to the Annual Notice of Parental Rights and Responsibilities.

Children of Military Service Members – Residency

Previously, the law only allowed military families to register their children for school on a preliminary basis in the California school district in which their military base was located. Senate Bill (SB) 455 amended Education Code section 48204.3 to allow all active duty military families to enroll their children in the school district where they will be living, instead of the school district where the military base is located, so long as they provide proof of residency within 10 days of the prescribed date of the Permanent Change of Station order. (See 2017 Client News Brief No. 77.)

Children of Active Duty Military – Graduation and Coursework Requirements

Assembly Bill (AB) 365 amended Education Code sections 51225.1 and 51225.2 to give students living in the household of a parent who is an active duty member of the military the same rights related to exemptions from coursework and graduation requirements currently available to foster youth, homeless students, and former juvenile court school students. Currently, Education Code sections 51225.1 and 51225.2 provide that students in foster care, who are homeless, or were former juvenile court school students, who transfer between schools any time after the completion of their second year of high school, are exempt from district-level requirements for graduation above those set by the state. Complaints of noncompliance may be filed under the local education agency’s (LEA’s) Uniform Complaint Procedures. (See 2017 Client News Brief No. 77.)

Residency Retention for Students Whose Parents are Detained or Deported

SB 257 added Education Code section 48204.4, which now allows students whose parents have been detained or deported to retain residency in a school district, regardless of the students’ current residency, when certain conditions are met. (See 2017 Client News Brief No. 64.)

Immigration Enforcement – “Know Your Rights”

Assembly Bill (AB) 699 added Education Code section 234.7, which requires LEAs to provide parents and guardians, as appropriate, information regarding the right to a free public education, regardless of immigration status. This must include information relating to immigrants’ rights posted on the Attorney General’s website and may be provided in the annual notice or by any other cost-effectivemeans determined by the LEA. (See 2017 Client News Brief No. 64.)

Discrimination Based on Immigration Status

AB 699 also amended Education Code sections 200, 220, and 234.1 to prohibit discrimination based on immigration status. Annual notice anti-discrimination provisions and Uniform Complaint Procedures provisions will require updates to include immigration status as a protected classification. (See 2017 Client News Brief No. 64.)

Juvenile Court Students – Graduation Requirements and Continuing Education Options

AB 1124 amended Education Code section 48645.3 and added Education Code section 48645.7. Under these changes to the law, a student who is in a juvenile detention facility may defer the granting of a diploma until he or she is released. Then, upon release, it allows the student to decline the issuance of a diploma for the purpose of enrolling in a school operated by an LEA or charter school to take additional coursework. The bill also allows complaints of noncompliance to be filed with LEAs. LEAs are also required to include such information regarding the availability of the complaint process in their annual notice.

Employee Codes of Conduct – Interactions with Students

AB 500 added Education Code section 44050, which applies to LEAs that maintain a written employee code of conduct that includes a section on employee interactions with students.

As of January 1, 2018, LEAs must post, if applicable, the section of their employee code of conduct on employee interactions with students or provide a link to it on each of its schools’ websites. If an LEA’s schools do not have their own websites, it may be posted on the LEA’s website. Additionally, starting on July 1, 2018, LEAs must provide a written copy of this section to parents and guardians at the beginning of each school year. This requirement may be satisfied by including the section on employee interactions with students in the annual notice.

California High School Exit Examination (CAHSEE)

AB 830 eliminated the CAHSEE, so references to the CAHSEE should be removed from the annual notice.

Lozano Smith regularly reviews and updates annual notices for LEAs around the state. Such revisions involve either an update to the prior year’s annual notice to account for changes in the law within the past year, or a more comprehensive review to ensure that updates resulting from changes in the law over the past several years and changes in an LEA’s own policies and practices that impact the annual notice’s content are current. If you are interested in any of the annual review services that Lozano Smith provides, 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:

Claudia P. Weaver

Partner

Mary Gates-Casey

Senior Paralegal

©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.