New Law Re-Names Statutorily Required Teacher Layoff Forms

August 2013
Number 51

In recent years, most school districts have used the certificated layoff process to reduce district expenses in difficult economic times. Until now, districts have been compelled by law to serve employees with a legal document with the undesirable title of “Accusation” even though the employees had not engaged in any wrongdoing. Likewise, the employees have been obligated to file a legal document called a “Notice of Defense” in order to challenge the layoff process.

State legislators believed that these titles incorrectly suggested that employees had done something wrong, and recently took action to correct this problem. Effective January 1, 2014, Senate Bill (“SB”) 546 gives new titles to these statutorily required forms which are more appropriate and accurate in the layoff context. For purposes of certificated layoffs, SB 546 renames the “Accusation” document to the “District Statement of Reduction in Force.” Likewise, SB 546 renames an employee’s “Notice of Defense” to a “Notice of Participation.”

SB 546 amends Education Code section 44949 and the Administrative Procedures Act, contained in Government Code section 11500, et seq. For any districts undergoing certificated layoffs in spring 2014, it will be important to ensure that these forms are renamed, and that the current versions of the relevant sections of the Education Code and Government Code are served with their layoff notices.

Lozano Smith will be updating its sample forms to reflect these changes. For more information, please feel free to contact 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

Darren C. Kameya
Senior Counsel
Los Angeles Office
dkameya@lozanosmith.com

©2013 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.

School District May Violate Title II of the ADA Even If Providing FAPE Under IDEA

August 2013
Number 50

A federal appeals court has ruled that a school district’s compliance with its obligations to a deaf or hard-of-hearing student under the Individuals with Disabilities Education Act (IDEA) does not necessarily establish compliance with Title II of the Americans with Disabilities Act (ADA). The ruling by the United States Court of Appeals for the Ninth Circuit came on August 6, 2013 in a pair of consolidated cases involving two deaf and hard-of-hearing high school students (K.M. v. Tustin Unified School Dist. __ F.3d __ (9th Cir. 2013), “K.M.“).

Students K.M. and D.H. each requested that their school districts, Tustin Unified School District and Poway Unified School District, respectively, provide them with Communication Access Realtime Translation (CART), a word-for-word transcription services, in the classroom as part of their Individualized Education Plans (IEPs). CART uses a trained stenographer to provide real-time captioning that appears on a computer monitor. Both districts denied the students’ requests for CART, but provided alternative accommodations, including an alternative transcription service (Typewell) and the use of visual cues. The students each brought due process complaints against their respective school districts alleging that they required CART in order to receive a free and appropriate public education (FAPE). Both students claimed that although they could hear their teachers, they sometimes had difficulty hearing their classmates or instructional videos. The school districts argued that the students were able to meaningfully participate in classroom discussions and make sufficient academic progress. The Administrative Law Judges (ALJs) in both cases found that the school districts had met their obligations to provide the
students a FAPE and did not need CART to receive educational benefit.

Both students filed federal cases challenging the ALJs’ decisions, and each claimed, in addition to a failure to provide FAPE, that their school districts had violated Section 504 of the Rehabilitation Act (Section 504) and Title II of the ADA. At the federal trial court level, the students’ claims were denied, with the courts concluding that since the students were unable to show they had been denied a FAPE, they could not prove their Section 504 and ADA claims. The students appealed, and their cases were consolidated. On appeal, the students did not argue they had been denied FAPE under the IDEA and Section 504, but instead challenged the ruling that their ADA claims failed, arguing the school districts violated the ADA’s regulations regarding effective communications.

In ultimately ruling for the students on their ADA claims, the federal appeals court held that the lower courts incorrectly relied on case law concluding that if a school district is found to have complied with its FAPE obligations under the IDEA, then it also complied with its FAPE obligations under Section 504, because the two FAPE requirements are substantially similar. However, a finding of FAPE under the IDEA does not preclude other Section 504 claims based on other theories of liability. Likewise, Congress did not create a similar FAPE requirement in the ADA. Therefore, a finding of FAPE under Section 504 does not necessarily mean a plaintiff’s ADA claims are barred.

Since neither student challenged the finding of FAPE, the appeals court looked at the requirements for effective communication under the ADA, and found that the regulations contain a higher standard than under the IDEA. The IDEA requires that a school district provide students with a basic floor of opportunity, and for a student who is deaf or hard-of-hearing, the IEP team must consider the student’s communication needs, opportunities for direct communication, academic level, and opportunities for direct instruction in the student’s primary mode of communication. The IEP team must also consider parent or student preferences, as appropriate, but need not provide any service solely to maximize potential benefit. In contrast, the ADA’s effective communication regulations provide that public entities take steps to ensure that the communication of the individual with a disability is as effective as for others. The public entity must also “furnish appropriate auxiliary aids and services where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a service, program, or activity.” Finally, the public entity must give primary consideration to the requests of the individual with the disability.

Therefore, based on this higher standard for effective communication contained in the ADA, the appeals court held that a finding of FAPE under the IDEA does not necessarily establish compliance with the ADA. The appeals court remanded the cases back to the lower court to determine whether the alternative accommodations provided by each of the school districts met the higher standards for effective communication under the ADA.

Based on K.M., school districts should carefully review the offered accommodations for deaf and hard-of-hearing students to ensure that they not only meet the FAPE requirements under the IDEA, but also the higher standards for communication under the ADA. As such, districts should take into consideration: 1) whether the accommodations allow the student to communicate to the same extent as non-disabled students, 2) what auxiliary aides and services may be needed, and 3) the student’s or parents’ preference. However, school districts should also keep in mind that even under the higher standard of the ADA, the ADA does not require a public entity to provide an accommodation which results in a fundamental alteration in the nature of the services provided or cause undue financial or administrative hardship.

For further detailed information regarding requirements under the IDEA, ADA, and other relevant anti-discrimination laws, please feel free to contact 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

Marcy Gutierrez
Senior Counsel
Sacramento Office
mgutierrez@lozanosmith.com

Jessica Gasbarro
Associate
Sacramento Office
jgasbarro@lozanosmith.com

©2013 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 Supreme Court Holds Non-Licensed School Personnel May Administer Medication, Including Insulin

August 2013
Number 49

On August 12, 2013, in American Nurses Ass’n. v. Torlakson (Docket No. S184583), the California Supreme Court answered the long outstanding question whether trained school district personnel are legally allowed to administer insulin to diabetic students under a Section 504 Plan or Individualized Education Program (IEP). Torlakson is an appeal from a 2010 California court of appeal decision, which held that under California law, unlicensed school personnel were not authorized to administer insulin injections to students. (See American Nurses Ass’n v. O’Connell (2010) 185 Cal.App.4th 393.) In this new opinion, the Court decided affirmatively that California law does permit personnel who have voluntarily received appropriate training to administer medication, including insulin to diabetic students, in accordance with written directives from a treating physician and parental consent.

The debate over the administration of insulin began in 2005 when parents of four diabetic students and the American Diabetes Association (ADA) filed a class action lawsuit against two school districts, the Superintendent of Public Instruction, the Board of Education of California, and the California Department of Education (CDE), alleging students with diabetes were not provided with appropriate health care services, including the administration of insulin, in violation of federal law ensuring the right to a free appropriate public education (“FAPE”). (K.C. et al. v. O’Connell et al. (N.D. Cal. 2005) No. C05-4077 MMC.) Pursuant to a settlement agreement reached by CDE, the parents and the ADA, CDE issued an advisory opinion (“Advisory Opinion”) regarding the obligations of school districts to students with diabetes. The Advisory Opinion concluded that trained unlicensed school employees who have voluntarily received appropriate training are allowed to administer insulin to students with diabetes, during school hours, pursuant to a 504 Plan or IEP.

Shortly thereafter, the American Nurses Association (ANA) filed suit against the Superintendent of Public Instruction and CDE, claiming this opinion violated the Nursing Practice Act (NPA), which restricts unlicensed persons from performing the functions of a licensed nurse. The trial court agreed with the ANA and found the Advisory Opinion invalid under California Law. The Court of Appeal, in affirming the trial court’s decision, reasoned that the legislature had specifically authorized the administration of other medications by unlicensed school personnel, including glucagon to diabetic students in limited, emergency situations and also asthma medications. However, there was no such authorization for the administration of insulin. CDE appealed to the California Supreme Court.

The Supreme Court has now reversed the Court of Appeal’s decision, holding “California law does permit, trained, unlicensed school personnel to administer prescription medications, including insulin, in accordance with written statements of individual students’ treating physicians, with parental consent.” In reaching this ruling, the Court relied on Education Code sections 49423 and 49423.6, as well as the California Code of Regulations, title 5, sections 600 and 604, which have always permitted the administration of prescription medication by trained personnel. The Court’s ruling clarifies that the administration of insulin is covered under these statutes and that state law essentially delegates to each student’s doctor the decision whether insulin may safely and appropriately be administered by unlicensed school personnel or whether the student’s medical needs can be met only by a licensed health care provider. The Court also held that, contrary to the claims of the ANA, unlicensed personnel administering insulin are not in violation of the NPA.

What this means for school districts: to meet their obligations to students who need assistance in administering medication, including those needing insulin injections, school districts must receive a written statement from the student’s treating physician, authorizing the administration of the medication by trained, unlicensed personnel, and based on written consent from the student’s parents. School districts must also ensure that school district personnel are trained by qualified professionals to administer medication. We also recommend that districts revise their Board polices and administrative regulations to reflect this decision.

For further detailed information regarding the administration of medication, Section 504, and the Individuals with Disabilities Education Act, please feel free to contact one of our eight offices located statewide. You can also visit ourwebsite, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Deborah U. Ettinger
Senior Counsel
Petaluma Office
dettinger@lozanosmith.com

Marcy Gutierrez
Senior Counsel
Sacramento Office
mgutierrez@lozanosmith.com

Jessica Gasbarro
Associate
Sacramento Office
jgasbarro@lozanosmith.com

©2013 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 of Appeal Holds that Diverted Revenue Should be Included in the Calculation of District’s Property Tax Allocation Base

August 2013
Number 48

In the most recent published case arising out of the aftermath of the dissolution of redevelopment agencies statewide, a court of appeal has ruled in Los Angeles Unified School District v. County of Los Angeles (2013) 217 Cal.App.4th 597, that the Los Angeles Unified School District’s (District) property tax allocation base should include property tax revenue that was diverted by other legislation. The decision resulted in an increase in revenue to the District in the form of increased pass-through payments.

Specifically, the court determined that the District’s pass-through payments should have included Educational Revenue Augmentation Fund (ERAF) revenue that was diverted as a result of the Triple Flip and Vehicle Licensing Fee Swap (VLF) legislation. The Triple Flip is a temporary revenue measure that shifts revenue in three steps to guarantee repayment of Proposition 57 bonds, while the VLF Swap refers to diverted property tax revenue given to cities and counties to compensate each for their loss in revenue resulting from decreased vehicle license fees.

The calculation of a district’s property tax allocation base is important because it affects the percentage share of pass-through payments that a district receives from former redevelopment agencies. Prior to the dissolution of redevelopment agencies, upon completion of a redevelopment project, any resulting increase in property tax revenue is allocated among the affected local taxing entities, including schools. These “pass-through payments” benefit schools as they contain fixed percentages of property tax and non-property-tax revenue, and only the latter may be spent on educational facilities.

In 2007, the District filed suit to compel the County and City of Los Angeles and others to increase its allocation of community redevelopment project mitigation payments under Health and Safety Code section 33607.5. The District specifically challenged the omission of ERAF revenue from its property tax allocation base. During the appeal of that matter, the court of appeal concluded that ERAF revenue should be included in the District’s property tax allocation base. In subsequent proceedings, however, the superior court rejected the District’s contention that its property tax allocation base should also include its share of property tax revenue diverted from ERAF revenue by Triple Flip and VLF Swap. In this most recent decision, the appellate court concluded that revenue diverted by Triple Flip and VLF Swap should be counted for purposes of determining ERAF revenue.

The court of appeal in this most recent case relied upon the California Supreme Court’s analysis in City of Alhambra v. County of Los Angeles (2012) 55 Cal. 4th 707. In City of Alhambra, the court held that the diversion of ERAF revenue pursuant to the Triple Flip and VLF Swap does not trigger a reallocation of property tax revenue under the A.B. 8 property tax allocation system. Relying on City of Alhambra, the court of appeal in the most recent case ruled in favor of the District, holding that the District’s share of the ERAF revenue that was diverted by Triple Flip and VLF Swap must be included in the calculation of its property tax allocation base. This will result in a corresponding increase in its share of pass-through payments under Health and Safety Code section 33607.5.

If you have any questions regarding this decision or the calculation of property tax revenue in general, please feel free to contact one of oureight offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Laurie A. Avedisian
Partner
Fresno Office
lavedisian@lozanosmith.com

Anne L. Collins
Associate
Sacramento Office
acollins@lozanosmith.com

©2013 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.

Education Code Revised to Extend Pupil Rights in Sex-Segregated School Programs, Facilities and Activities

August 2013
Number 47

On August 12, 2013, Governor Brown signed into law Assembly Bill (AB) 1266, which amends the Education Code regarding prohibited discrimination in public schools and requires schools to allow a student to participate in sex-segregated school programs and use facilities consistent with the student’s gender identity. Under existing law, Education Code section 221.5 provides that elementary and secondary school classes and courses must be conducted without regard to the sex of the pupil enrolled in these classes and courses. In addition, school districts are prohibited from enrolling a pupil in any class or course, on the basis of the sex of the pupil, with the exception of sex education courses. Existing law also prohibits a school district from requiring a pupil of one sex to enroll in a particular class or course, unless the same class or course is also required of a pupil of the opposite sex.

Education Code section 221.5 requires that participation in a particular physical education activity or sport is available to pupils of each sex if required of pupils of one sex. Notably, Education Code section 231 currently provides that nothing in Education Code section 221.5 et seq. “shall be construed to prohibit any educational institution from maintaining separate toilet facilities, locker rooms, or living facilities for different sexes, so long as comparable facilities are provided.” Relying on section 231 of the Education Code, the California Department of Education issued a 2004 Legal Advisory to all county and district superintendents concluding that existing law does not require school districts to allow biologically male students to use the female students’ bathroom or locker room if the male students perceive or identify themselves as female, and vice versa.

AB 1266 provides an additional component to Education Code section 221.5. Under AB 1266, a student must be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities, including bathroom facilities, consistent with his or her gender identity and irrespective of the gender listed on the pupil’s records. AB 1266 makes clear that transgender and gender nonconforming students have a right to participate in school extracurricular and athletic activities based upon their gender identity regardless of their biological sex. AB 1266 thus extends existing protections and rights for students based upon gender identity, while also implicitly narrowing Education Code section 231’s directive that schools may maintain separate restrooms, and other facilities, and require use of such facilities on the basis of a student’s sex without reference or qualification in terms of the student’s gender identity. In other words, regardless of Education Code section 231, AB 1266 appears to now permit a student to use the relevant facilities based upon gender identity, as opposed to based upon the student’s biological sex.

School districts may want to re-evaluate existing board polices and administrative regulations to ensure that they are in compliance with these new legal changes. AB 1266 is effective January 1, 2014. Updated guidance on this issue from the California Department of Education would also be of significant value, such as: (1) whether there are certain standards and criteria that a school district may impose to determine and/or validate that a given student in fact has a gender identity that permits access, participation and use of certain programs and facilities that vary from the student’s biological sex, and (2) what conditions, if any, may be placed upon a student’s use of bathroom and locker room facilities when students of the opposite biological sex are present. AB 1266 does not address these issues.

For further information regarding pupil rights with respect to sex segregated school programs, facilities and activities, or practical steps that can be taken with regard to these issues, please feel free to contact 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

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

George R. Valenzuela
Senior Counsel
Petaluma Office
gvalenzuela@lozanosmith.com

©2013 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 of Appeal Distinguishes Between “Volunteer” and “Employee” for FEHA Disability Discrimination Claims

August 2013
Number 46

The California Court of Appeal, in Estrada v. City of Los Angeles (July 24, 2013) __ Cal.App.4th __ 2013 WL 3831352, recently considered whether a “volunteer” worker qualified as an “employee” for purposes of bringing a claim under the Fair Employment and Housing Act (FEHA). FEHA is a California statute prohibiting employment discrimination motivated by a number of factors, including disability. To bring a claim against an employer under the FEHA, an individual must be an employee. An “employee” pursuant to the FEHA is an individual who has been appointed, hired under express or implied contract, or serves as an apprentice. The court in Estrada held that a volunteer worker does not qualify as an employee for the purposes of the FEHA and, therefore, cannot bring an employment discrimination claim under the FEHA.

In Estrada, Frank Estrada, a volunteer reserve officer for the Los Angeles Police Department (LAPD), filed suit against the City of Los Angeles for disability discrimination when he was terminated after seventeen years of service for inappropriately selling prescription drugs through his nutritional supplement company. Mr. Estrada claimed that his disabilities, rather than his involvement with the sale of prescription drugs, were the actual reasons for his termination.

In its opinion, the court addressed two arguments in support of Mr. Estrada’s claim that he was an employee for purposes of alleging disability discrimination under the FEHA. First, the court considered whether Mr. Estrada constituted as an employee under the FEHA because he was “appointed” into his position as a reserve officer. Second, the court considered whether Mr. Estrada was an employee because he qualified for, and received, workers’ compensation benefits from the City for injuries sustained while on duty as a reserve officer. The court rejected both arguments.

When Mr. Estrada first became a reserve officer, he acknowledged in writing that he was not an employee of the City or of the police department. Mr. Estrada argued, however, that the City’s requirement that he be appointed into his position by a Chief of Police sufficiently rendered him an employee pursuant to the FEHA. The court rejected this argument, reasoning that the City explicitly appointed him to a volunteer position, not an employee position. The court explained that there exists no case law or policy regarding the distinction between a volunteer and an employee to support a different conclusion.

In the course of his duties as a reserve officer, Mr. Estrada sustained injuries as a result of two separate traffic collisions. The LAPD has a policy of treating reserve officers as volunteer workers except for purposes of providing workers’ compensation benefits. The LAPD does so despite the fact that the Workers’ Compensation Act excludes volunteer workers from its definition of an “employee.” Through the LAPD’s policy, Mr. Estrada received workers’ compensation benefits for his duty-related injuries. Mr. Estrada referred to the benefits he received as evidence that he was compensated as an employee, arguing that such an employment status should extend to his FEHA claim. In response, the court explained that a policy of making workers’ compensation benefits available to volunteer workers is based on the intent to make volunteer workers whole for injuries sustained while gratuitously serving the community. The court concluded that such a policy does not change the classification of a volunteer worker into an employee for any purpose besides workers’ compensation benefits.

The court’s opinion in Estrada establishes a statewide limit to the reach of the FEHA protection against employment discrimination in terms of volunteer workers. As such, a volunteer worker cannot file an employment discrimination claim under the FEHA, even if the worker is covered by workers’ compensation, as a matter of policy. If you have any questions or concerns regarding the Estrada decision, or other questions regarding the scope of the FEHA’s application, please feel free to contact 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
Sacramento Office
ssimmons@lozanosmith.com

Niki Nabavi Nouri
Associate
Walnut Creek Office
nnabavinouri@lozanosmith.com

©2013 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.

AB 182 and Its Impact on General Obligation Bond Financings for California School Districts and Community Colleges

August 2013
Number 45

An important public finance bill that would potentially restrict the ability of school districts and community colleges to issue bonds is steadily making its way through the legislative process. As we have brought to your attention in a series of Client News Briefs, Assembly Bill 182 (AB 182) addresses controversial issues concerning the use of bonds that allow for the compounding of interest, including capital appreciation bonds (CABs), to pay for K-12 and community college district facilities construction projects. AB 182 has been proposed in response to negative media attention and heightened political scrutiny over the past few months focused on financing structures that include CABs. While AB 182 is still pending, we expect that the possible imposition of these new restrictions will compel many would-be issuers to accelerate financing timetables and issue bonds before January 1, 2014, when AB 182 would take effect.

As opposed to current interest bonds, on which interest is paid to bond holders periodically during the life of the bond to maturity, CABs are sold at an initial principal value and “accrete” to final principal value at maturity. This structure effectively defers payment of interest and principal during the early life of the CAB and pays bond holders at a later date, typically at maturity. Deferment of payment is often required or desirable for districts that have reached debt service capacity in the near-term. The trade-off for the deferment afforded with CABs is that the effective yield on CABs are often much higher than on current interest bonds.

On January 17, 2013, State Superintendent of Public Instruction Tom Torlakson and State Treasurer Bill Lockyer issued a joint news release urging school districts to impose a moratorium and not issue any new CABs until the Legislature and Governor completed their consideration of the pending reform proposals. Critics of CABs, including Lockyer and Torlakson, have pointed to a handful of what have become high-profile financings in the San Diego area where, due to the interest rate and length of term, the total debt service to initial principal ratio was ten-to-one or higher.

Under current law, school districts and community college districts can issue bonds under the Government Code with a maturity of up to 40 years and with an interest rate of up to 12%. Additionally, under current law, CABs are not required to have a mandatory call or tender feature.

AB 182 limits the way school districts and community college districts may finance their school facilities projects through issuance of general obligation bonds, including placing stricter limits on bond maturity and bond interest rates, mandating debt service-to-principal ratios and mandating redemption or tender for purchase.

Although not as restrictive as when first introduced, barring any further amendments, AB 182 would do the following, effective January 1, 2014:

  • Limit the terms of current interest bonds issued under the Government Code to 30, rather than 40, years, except that until January 1, 2019, a district may issue current interest bonds with terms up to 40 years if the district finds that the useful life of the facility financed with the current interest bonds is equal to or greater than the term of the current interest bonds.
  • Limit all CABs to a maximum of 25 years and 8% interest.
  • Require all CABs to have a call option after no later than 10 years from issuance.
  • Limit the ratio of total debt service to principal to no more than 4:1 on all bond sales.
  • Require public disclosure of detailed information about any proposed use of CABs, including financing terms and time of maturity, repayment ratio, and estimated change in assessed value of property in the district over the financing term.
  • Require that if the bond sale will include CABs, then the board resolution approving the sale must be presented to the governing board on two consecutive meeting agendas, first as an informational item, and second as an action item.
  • Require that the agenda items for bond sales, including CABs, must identify that CABs are proposed and that the governing board be presented with all of the following: (i) an analysis containing the total overall cost of the CABs; (ii) a comparison to the overall cost of current interest bonds; (iii) the reason CABs are being recommended; and (iv) a copy of the written disclosure made by the underwriter to the district in compliance with Rule G-17 adopted by the federal Municipal Securities Rulemaking Board.

Regardless of AB 182, good business practice dictates that school district and community college administrators and governing boards are adequately advised by their financial advisors, bond counsel and other members of the financing team regarding any financing structure in order to promote informed decision making and provide public transparency. It is a good idea to ask your financial advisor to give a presentation on financing options and proposed terms, including an overview of the proposed financing structure, advantages of CABs versus current interest bonds, likely debt service to principal ratios, proposed call features, and likely interest rates and maturities.

If you have any questions regarding bonds, please feel free to contact 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

Jeffrey L. Kuhn
Partner
Fresno Office
jkuhn@lozanosmith.com

Daniel Maruccia
Partner
Sacramento Office
dmaruccia@lozanosmith.com

©2013 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.

Developer Fees for School Facilities May Not Be Imposed on Replacement Housing Absent Specific Study and Findings

August 2013
Number 44

We are often asked whether a development project that replaces existing housing must pay school impact fees. In the recent case of Cresta Bella, LP v. Poway Unified School District (July 31, 2013) __ Cal.App.4th __ 2013 WL 3942961, a California Court of Appeal concluded, based on the specific facts before it, that other than increased square footage beyond the original square footage, a school district may not impose fees on replacement housing unless a study expressly demonstrates that the replacement housing will generate new students.

The issue of fees for replacement housing was previously considered in Warmington Old Town Assocs. v. Tustin Unified School Dist. (2002) 101 Cal.App.4th 840. There, a court of appeal concluded that there is a statutory basis to require replacement development to pay statutory developer fees when the demolition of the existing buildings was voluntary. However, Warmington also concluded that the school district’s fee justification study must specifically have considered the “type” of development in question (voluntary demolition and replacement) and established a “nexus” between the new development and the impact on school districts.

In response to Warmington, some school districts have attempted to address the impact of replacement housing as a “type” of development in their developer fee justification studies (for “Level 1” fees) or school facilities needs analyses (for “Level 2” fees). Poway Unified School District did so as well, including language in its school facilities needs analysis that expressly took replacement housing in the district into account. The district’s analysis addressed “residential redevelopment,” consisting of the demolition and replacement of existing dwelling units with new units. The study estimated how many of the new units anticipated would be replacement units, how many students would be generated, and how many students from the existing units would be reduced. The analysis then concluded that fees for the replacement units were justified because the Level 2 fee was capped at an amount based on the statutory formula that would not fully mitigate impacts, meaning that fees from replacement square footage were needed. The district also later argued in court that the original apartment units had never originally paid school impact fees, as they were built prior to the fee legislation.

In Cresta Bella, the developer demolished existing apartment units, replacing them with a greater number of units and square footage. Based on its needs analysis, the school district imposed fees on the entirety of the new apartment units, not just the increased amount of square footage.

The court of appeal rejected the district’s approach. Relying on Warmington, the court concluded that the district failed to establish that there is a connection between the new construction and an increase in student population. The court was unpersuaded by the fact that the district would not have adequate mitigation, noting that this was a result of the statutory formula, and not the result of new students generated by the replacement housing above and beyond the students who were already there. Similarly, the court did not find the fact that the original units never paid fees to be relevant, because that did not demonstrate that the replacement units were what was causing the need for new school facilities. The court did, however, uphold the imposition of fees on any increased square footage beyond what was previously in place. We have consulted with the district’s attorneys, and the district has not yet decided whether to appeal the decision.

Based on Cresta Bella, the key for justification studies and school facilities needs analyses moving forward will be establishing the nexus or relationship between the development of replacement housing and the generation of new students. As noted by the court, the study must “show that reconstruction of preexisting units was projected to be a contributing cause of the need for new school facilities.” Importantly, the court recognized that “[t]here may be circumstances in a particular school district’s housing reconstruction trends that could support a correlation between reconstruction of preexisting residential units and the generation of new students. . . .”

Questions regarding the application of fees to replacement development should be carefully considered at the time justification studies or needs analyses are prepared. Please feel free to contact one of our eight offices located statewide for assistance with reviewing draft justification studies and needs analyses, or with questions concerning the imposition of fees on replacement or other development. For a copy of Lozano Smith’s Developer Fee Handbook for School Facilities, which is a point by point guide for imposing and collecting school impact fees, please visit our online order form. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Harold M. Freiman
Partner
Walnut Creek Office
hfreiman@lozanosmith.com

©2013 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 Federal Guidance Reminds School Districts of their Obligations Relating to Pregnant and Parenting Students

August 2013
Number 43

The U.S. Department of Education, Office for Civil Rights’ (OCR) recently issued Dear Colleague Letter provides a helpful reminder to school districts of their legal requirements regarding support and accommodation of pregnant and parenting students as they strive to stay in school. The Dear Colleague Letter explains school districts’ obligations pursuant to Title IX of the Education Amendments Act of 1972 (Title IX) and its implementing regulations relating to school retention problems associated with young parents.

Title IX prohibits school districts from discriminating against any student on the basis of sex, including “a student’s actual or potential parental, family, or marital status.” Specifically, school districts may not exclude pregnant students (or students who have been pregnant) from participating in any part of an educational program, including extracurricular activities. While schools are permitted to implement special instructional programs or classes for pregnant students, these programs must be comparable to the programs offered to non-pregnant or non-parenting students with regard to the range of academic, extracurricular and enrichment opportunities. Also, any participation by a pregnant or parenting student in these programs must be completely voluntary.

To further assist secondary school administrators, teachers and counselors who work with pregnant or parenting students, the OCR has also prepared a detailed pamphlet to provide background regarding school retention problems associated with young parents and school districts’ related legal obligations for supporting these students. The OCR pamphlet can be obtained at http://www2.ed.gov/about/offices/list/ocr/docs/pregnancy.pdf.

For further information regarding OCR’s Dear Colleague Letter, discrimination based on parental status or discrimination based on sex in general, or practical steps that can be taken relating to these issues, please feel free to contact 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

Thomas Manniello
Partner
Monterey Office
tmanniello@lozanosmith.com

Ileana Butu
Associate
Sacramento Office
ibutu@lozanosmith.com

©2013 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 Supreme Court Rules Charter School Revocation Procedures Constitutional

August 2013
Number 42

The California Supreme Court recently held that California’s statutory revocation procedures for charter schools are constitutional and provide sufficient due process. In Today’s Fresh Start Inc. v. Los Angeles County Office of Education (July 11, 2013) __ Cal.4th __ 2013 WL 3467070, the court clarified that its decision was specific to revocation procedures involving countywide charter schools. However, the decision supports the premise that the Education Code’s revocation process provides due process to all charter schools, including those chartered by school districts.

Today’s Fresh Start, Inc. (Today’s Fresh Start) was granted a countywide charter by the Los Angeles County Office of Education (COE). Concerns arose regarding the charter school’s operational and fiscal management. After presenting the charter school with written notice of the deficiencies, a 53-item Corrective Action plan, an opportunity to correct the violations and to address the County Board at a public hearing, the COE voted to revoke Today’s Fresh Start’s charter. The charter school appealed to the State Board of Education, which affirmed the revocation.

The California Supreme Court examined the constitutionality of Education Code section 47607’s revocation procedures. Education Code section 47607 provides that, barring an imminent and severe threat to the health and safety of its pupils, charter schools must be given notice and a reasonable opportunity to remedy revocable violations. A public hearing must be held within 30 days of issuing a notice of intent to revoke the charter and the chartering authority must issue a final written decision within 30 days of the hearing. A decision to revoke a charter must include factual findings supported by substantial evidence. If, as in Today’s Fresh Start’s case, the county office of education is the chartering authority, the county board of education’s revocation decision may be appealed to the State Board of Education.

Today’s Fresh Start argued that it was denied due process in three respects: (1) the County Board was financially biased against the charter school; (2) the County Board’s reliance on input from the COE prevented it from being unbiased; and (3) the charter school was given inadequate notice of the COE’s case against it.

In order to ensure due process, decision makers may not have any financial interest in the process. The court found that the County Board had no financial bias against the charter school. Today’s Fresh Start was not competing with any of the COE’s programs because the charter school was running a kindergarten through eighth grade program serving the general student population while the COE’s programs were specialized and structured principally for high school students. Also, County Board members did not have a personal financial interest in the success or failure of the charter school.

The court also determined that COE staff could advise the County Board of the County Board’s obligation to determine whether one of its charter schools should be revoked. The court refused to characterize the revocation process as an adversarial process with one side (COE staff) versus another (the charter school). The court found that the County Superintendent of Schools, and her staff, had fulfilled its duty to advise the County Board throughout the revocation process, including determining whether to recommend initiating revocation proceedings in the first place. In this case, the chartering authority was not required to outsource charter school violation investigations and adjudications to maintain impartiality.

Finally, the California Supreme Court concluded that Today’s Fresh Start was not entitled to a formal evidentiary hearing when provided with a revocation hearing. The charter school had been provided with the COE’s evidence supporting the revocation and the charter school had an opportunity to respond well in advance of the public hearing before the County Board. Also, Education Code section 47607 does not require that county boards of education or school district governing boards “turn their regularly scheduled public meetings into formal evidentiary hearings.”

This decision by the California Supreme Court helps guide chartering school districts and county offices of education in the unfortunate and limited occasions that charter revocation proceedings are needed.

Lozano Smith’s Charter School Practice Group continuously tracks new developments in charter school law. For questions regarding charter schools, please feel free to contact 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 Sklar
Partner
Walnut Creek Office
esklar@lozanosmith.com

©2013 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.

Back to School Reminder on Student Fees

August 2013
Number 41

As the end of school summer break approaches and school districts finalize plans for the 2013-2014 school year, now is a good time to review some important general rules relating to student fees. School districts around the state are well aware that Education Code section 49010 et seq. now provides a detailed set of parameters regarding student fees, charges, deposits, donations and fundraising. As such, school districts should keep the following general rules in mind for the new school year:

  • Schools cannot require students to provide necessary school supplies used in the classroom, such as paper, pens, and crayons. Nor can schools charge a student for uniforms associated with an educational activity, such as cheerleading and marching band. However, schools and school programs may provide students with a list of supplies and ask students to make voluntary donations of such supplies, or request voluntary donations to cover the costs of uniforms. (See Ed. Code §§ 49010, subd. (b)(2)-(3), 49011, subd. (b)(1), (b)(4), (c); see also id., §§ 38111, 38118, 41032.)
  • Schools cannot require students to pay a security deposit, or other payment, to obtain a lock, locker, book, class apparatus, musical instrument, uniform, or other materials or equipment. (See Ed. Code § 49010, subd. (b)(2); see also id., §§ 38111, 38118.)
  • Schools cannot require students to pay a fee as a condition for registering for school or classes, or as a condition for participation in a class or an extracurricular activity, regardless of whether the class or activity is elective or compulsory, or is for credit. (See Ed. Code, §§ 49010, subd. (b)(1), 49011, subd. (a), (b)(3)-(4); see also Hartzell v. Connell (1984) 35 Cal.3d 899; Cal. Code Regs., tit. 5, § 350.)
  • Schools cannot require students to pay for a student body membership or other fees as a condition of participating on a sports team, music group or other school extracurricular or co-curricular activity. However, schools can ask students to do voluntary fundraising to help cover the costs for an extracurricular or co-curricular team or group. (See Ed. Code, §§ 49010, subd. (b)(1), 49011, subd. (a), (b)(3)-(4), (c); see alsoHartzell v. Connell (1984) 35 Cal.3d 899; Cal. Code Regs., tit. 5 § 350.)
  • Students cannot be required to purchase a specific physical education uniform from the school, unless the school provides such clothing to students for free. Schools also cannot require students to purchase clothing for physical education classes that contain a school’s name, logo or emblem. Instead, schools may require students to satisfy a general design and color requirement for physical education apparel provided no student’s grade is penalized for his or her inability to obtain clothing in compliance with the general design and color requirement. (See Ed. Code § 49066; California Department of Education, Fiscal Management Advisory 97-02, California Department of Education, Fiscal Management Advisory 12-02.)
  • Schools may impose a fee on students for field trips, but students cannot be prohibited from attending or participating in such trips if unable to pay the fee. (See Education Code § 35330; California Department of Education, Fiscal Management Advisory 12-02.)
  • Students may be charged for items that are not an integral part of the district’s or school’s educational program, such as school pictures or sports pictures. (California Constitution, art. IX, § 5; Hartzell v. Connell (1984) 35 Cal.3d 899.)

It should also be noted that, effective March 1, 2013, school districts were required to have procedures in place to address any complaints of noncompliance with Education Code section 49010 et seq. and the rules surrounding pupil fees. These complaints are required to be processed under the Uniform Complaint Procedures. The State Board of Education and California Department of Education are expected to finalize regulations relating to student fee complaints soon, but in the meantime districts should follow the process under the Uniform Complaint Procedures.

If you have any questions regarding permissible or impermissible fees, the complaint procedures or other issues related to pupil fees, please feel free to contact 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 Mendyk
Partner
Fresno Office
rmendyk@lozanosmith.com

Sloan R. Simmons
Partner
Sacramento Office
ssimmons@lozanosmith.com

©2013 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.