Ninth Circuit Finally Weighs in on Student Discipline for Off-Campus, Electronic Communications

September 2013
Number 59

In a case with particular interest for school administrators addressing issues such as bullying and threats, a federal court has ruled that school officials can discipline students at school for off-campus electronic communications. In Wynar v. Douglas County Sch. Dist. (9th Cir. 2013) __ F.3d __, 2013 WL 4566354, the United States Ninth Circuit Court of Appeals has held that a student’s violent and threatening off-campus, electronic speech was not protected by the First Amendment of the United States Constitution and could be a basis for school discipline. This opinion is the first Ninth Circuit appellate case to address the question of whether a school district may discipline students for off-campus, electronic communications and, if so, what student speech standard applies. Prior to Wynar, although federal district courts around the nation and other sister appellate circuit courts had addressed this issue, there was no authority from the Ninth Circuit providing guidance to California school districts on this issue.

Based on Wynar, school districts faced with a student’s off-campus, electronic communications of a sufficiently violent or threatening nature, which are directed at the school, school employees and/or other students, may pursue disciplinary action against the student so long as the student speech standard under Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) 393 U.S. 503 is met. For all other off-campus speech, communicated electronically or otherwise, school districts should carefully analyze such speech on a case-by-case basis to determine whether or not the speech did, or was foreseeably likely to, cause a substantial disruption to the educational environment under Tinker.

The seminal student free speech case is Tinker, in which the United States Supreme Court held that students maintain their right to freedom of speech at school, and school officials are prohibited from disciplining them for otherwise protected speech so long as such expression does not cause a substantial disruption to the educational environment, or is reasonably forecast to cause such a disruption. This substantial disruption standard is often referred to as the Tinker standard. Subsequent Supreme Court precedent established that school districts may discipline students for speech that is “vulgar, lewd, obscene and plainly offensive speech” (Bethel Sch. Dist. No. 403 v. Fraser (1986) 478 U.S. 675), speech which undermines the legitimate pedagogical interests of the school in school-sponsored forums (Hazelwood Sch. Dist. v. Kuhlmeier (1988) 484 U.S. 260), and speech which promotes illegal drug use or other illegal activities (Morse v. Frederick (2007) 551 U.S. 393). These later cases, however, involved and apply only to student speech taking place on campus or at school-sponsored activities.

Before Wynar, the only published federal court case within California to address student discipline for off-campus expression was J.C. v. Beverly Hills (C.D. Cal. 2010) 711 F.Supp.2d 1094, in which the United States District Court for the Central District of California outlined the state of the law as generally allowing school districts to discipline students for off-campus, electronic speech only if: (1) the speech is subsequently brought onto school campus, brought to the attention of the school officials, or could foreseeably make its way onto campus; and (2) the speech caused substantial disruption to the educational environment or it was reasonably foreseeable that such a disruption would occur. Such disruption or foreseeable disruption, however, had to be based on specific facts and not undifferentiated fears of the administration.

Until Wynar, the two leading federal appellate court opinions regarding discipline for off-campus, electronic speech were issued by the Third Circuit Court of Appeals, in Layshock v. Hermitage Sch. Dist. (3d Cir. 2011) 650 F.3d 205 (en banc) and J.S. v. Blue Mountain Sch. Dist. (3d Cir. 2011) 650 F.3d 915 (en banc). The Third Circuit held in these cases, both of which are non-binding in California, that the involved school districts could not discipline the plaintiff students for creating fake MySpace profiles of school administrators, created off-campus, because neither school district could clearly demonstrate a substantial disruption to the educational environment resulting from such activities.

The Wynar case concerned a high school student who sent multiple violent and threatening instant messages through MySpace to his friends, who were also students at his high school. These messages included specific details of a potential school shooting, including a date of the planned event, which individuals the student planned on killing and the weapons and ammunition he had to execute his stated plan. His classmates notified the school, who correspondingly notified the police. The student was detained by law enforcement and suspended for ten days.

The student claimed that the online statements were a joke, and that the school district had violated his First Amendment rights by disciplining him for speech made off-campus. Both the district court and then the Ninth Circuit disagreed with the student and found that the school district lawfully disciplined the student for his off-campus speech under the Tinker standard. Specifically, the student’s speech was not protected because his statements, “which threatened the safety of the school and its students, both interfered with the rights of other students and made it reasonable for school districts to forecast a substantial disruption of school activities.” Additionally, the school district did not have to wait for actual disruption to occur before taking action-an extremely important point given the recent and tragic history of school shootings throughout the country.

For the first time, this court expressly held that the Tinker standard applies to off-campus, electronic communications that amount to an “identifiable threat of school violence.” This said, the court also emphasized that it was not ruling that Tinker applies to all off-campus speech. Nor did the court decide to expressly adopt any of the standards previously applied by other federal district courts or federal circuit courts. While the Court also found that the student’s due process rights, as guaranteed under Nevada state law, had not been violated, the case did not address the perhaps unique issues under California’s Education Code relative to due process, student speech rights, or California’s cyberbullying discipline provisions.

For further information regarding the discipline of students for off-campus and electronic speech, or student free speech rights in general, 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

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.

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Nationwide Shortage of TB Skin Tests Affects New Teacher Placement in Classrooms

September 2013
Number 58

A shortage of an important test for tuberculosis (TB) has impacted the ability of many school districts to place new teachers and classified employees in the classroom quickly this year. In an April 2013 health alert, the Federal Centers for Disease Control and Prevention (CDC) reported that the skin test solution for TB was in shortage nationwide. The CDC also indicated that the nationwide shortage of TB skin test solution will continue until at least the middle of October 2013. California requires new school employees to successfully to complete a TB test within 60 days prior to beginning employment.

The TB testing requirement for new school employees is found in Education Code section 49406 and Health and Safety Code section 121525. In relevant part, Education Code section 49406 provides that “no person shall be initially employed by a school district in a certificated or classified position unless the person has submitted to an examination within the past 60 days to determine if he or she is free of tuberculosis.” Pursuant to this section, a proper TB test consists of a skin test or any other test recommended by the CDC and licensed by the federal Food and Drug Administration (FDA).

Prior to the shortage, most individuals were tested for TB using the tuberculin skin test (“TST”). A specific type of antigen solution is required to make TST functional. Given the nationwide shortage of the TST antigen solution, the CDC has recommended utilizing the interferon gamma release assay (IGRA) blood test as an alternative. Although both blood tests are similarly effective and authorized by the Education Code, the IGRA test is more costly and can take upwards of two weeks to obtain results, which is significantly longer than the turnaround time for TST results due, in part, to laboratory processing time. In order to hire teachers and classified employees in a timely manner with adequate TB testing, school districts can choose to substitute the IGRA blood test for the traditional skin test. Districts can currently require new employees to pay for the cost of the more expensive IGRA blood test or may negotiate with their bargaining units to provide district-funded compensation to individual employees for the additional cost of testing.

Neither school districts nor county offices of education have the right to waive the TB test requirement. School districts, however, have the option of requesting that the State Board of Education waive the statutory TB testing requirement or allow the district to hire an employee subject to completion of the TB testing no later that November 1, 2013. Unfortunately, the waiver process itself is time consuming and may take as long or longer than the delay being caused by the current TB skin test shortage.

If you have any questions regarding compliance with the TB testing requirement, 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

Louis T. Lozano
Partner
Monterey Office
llozano@lozanosmith.com

Jennifer L. Schiffner
Associate
Monterey Office
jschiffner@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 Laws Allow for New Work Schedules for School Police Departments and Change the Definition of Sexual Harassment under FEHA

September 2013
Number 57

On August 12, 2013, Governor Brown signed into law Assembly Bill (AB) 226 and Senate Bill (SB) 292. AB 226 authorizes changes to the work schedule for school police departments and SB 292 changes the definition of “sexual harassment” to include conduct not motivated by sexual desire.

Assembly Bill 226

AB 226 authorizes the governing board of a school district or a county superintendent of schools to have a 12-hour-per-day, 80-hour-per-2-week work schedule, also known as a 3/12 workweek schedule, for school police departments. The work schedule must be consented to in a collective bargaining agreement, which must provide an hourly wage of not less than 30% of the state minimum wage.

Under existing law, a classified school employee’s workweek was prescribed to be 40 hours and a workday to be 8 hours. The governing board of a school district could also establish a 9-hour-per-day, 80-hour-per-2-week work schedule. The bill is intended to remedy a complicated and burdensome process to obtain a waiver to utilize a desired “3/12” schedule. AB 226 allows for flexibility in establishing work schedules for school police departments. Proponents, including the San Diego Police Officers Association, claim the alternative schedule results in greater productivity and greater savings.

Senate Bill 292

SB 292 amends California’s Fair Employment and Housing Act (FEHA). SB 292 adds to the definition of “sexual harassment,” specifying that “sexual harassing conduct need not be motivated by sexual desire.” (Gov. Code, § 12940(j)(4)(c) .)

SB 292 was introduced to “expand the definition of harassment because of sex under these provisions to include threats of sexual violence and specify that an act is sexual harassment regardless of the sexual orientation, sexual desire, or intent of the harasser.” (Sen. Bill No. 292 (2012-2013) as introduced February 14, 2013.) The bill responds to the court of appeal’s ruling in Kelly v. Conco Companies (2011) 196 Cal.App.4th 191.

In Kelly, the plaintiff’s male supervisor subjected him to a barrage of extremely graphic, profane, and sexually demeaning comments. The court noted that the plaintiff’s supervisor was heterosexual and did not have a sexual desire for the plaintiff. Based on this fact, the court decided that the plaintiff was not harassed because of his sex and, therefore, could not establish a claim of sexual harassment under FEHA.

The language of SB 292 seeks to avoid the result in Kelly by expressly stating that sexually harassing conduct need not be motivated by sexual desire.

If you have further questions on 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

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.

Back to School Legal Update: Bullying

September 2013
Number 56

As students head back to school for the start of the new school year, Lozano Smith’s Special Education and Student Practice Groups would like to provide school districts, and other local educational agencies, with a reminder of their obligations to prevent bullying among all students. As many educators are aware, bullying has been a hot topic for the last few years, and the law in this area is ever-developing. In the past two years, the legislature has passed several anti-bullying laws relating to student discipline rules and district policies. Recently the Office of Special Education and Rehabilitation Services (OSERS) issued a Dear Colleague Letter regarding special education students and bullying.

Bullying in General

School districts must have a board policy in place that prohibits bullying, and may also adopt an accompanying administrative regulation. The board policy, or set of board policies, must define bullying and contain various mandated provisions. Typical policies and regulations will discuss bullying in the context of prevention, intervention, discipline, and complaints.

With regard to prevention, both staff and students should receive training regarding bullying. School districts should also have bullying intervention plans-all employees should be aware that California law requires teachers/staff members to intervene if they witness an act of bullying (so long as it is safe to do so). School districts should also note that bullying can be grounds for discipline, under Education Code section 48900, subdivision (r), which also contains specific provisions regarding cyberbullying. Addressing procedures for complaints is a statutory requirement, with best practices involving the use of district uniform complaint procedures, if and when the alleged bullying is based upon a student victim’s protected characteristic (such as race, ethnicity, gender, sexual orientation etc.).

Special Education and Bullying

OSERS’ new guidance, found here, provides an overview of a school district’s responsibilities under the Individuals with Disabilities in Education Act (IDEA) in regards to special education students who are bullied. In the Dear Colleague Letter, OSERS explains that bullying of a student with a disability, which results in the student not receiving a meaningful educational benefit, constitutes a denial of a free appropriate public education (FAPE). OSERS’ guidance applies to public preschools, as well as elementary, middle and high schools and other public agencies, including non-profit charters.

The Dear Colleague Letter further provides guidance regarding how school districts and other educational agencies should respond when a special education student is bullied. OSERS provides the following guidance for school districts and other educational agencies:

    • Have teachers and adults respond quickly and consistently to bullying behavior to send a message that bullying is not acceptable;

 

    • Have teachers intervene immediately to stop bullying on the spot to help ensure a safer school environment;

 

    • Convene an individual education plan (IEP) team meeting to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the IEP is no longer designed to provide a meaningful educational benefit to the student;

 

    • Revise the student’s IEP to include additional or different special education or related services that are needed to address the student’s individual needs;

 

    • Do not change a student’s placement or the location of services unless the student can no longer receive a FAPE in the current least restrictive environment;

 

    • Do not address the bullying by changing the frequency, duration, intensity, placement or location of the student’s special education and related services;

 

    • Convene an IEP team meeting if the student who committed the act of bullying is a special education student; and

 

  • Consider changing the environment in which the bullying occurred, if needed.

OSERS stressed that whether or not the bullying is related to the student’s disability, any bullying of a student with a disability that results in the student not receiving a meaningful educational benefit constitutes a denial of FAPE and must be remedied.

School districts and other educational agencies may want to review OSERS’ guidance with staff, and in particular teachers, to ensure that they are aware of the interplay between bullying and special education students. During the review of OSERS’ guidance, school districts can also discuss bullying in the general education context, with regard to student discipline, intervention and complaints. In particular, school administrators responsible for student discipline should be familiar with the definition of bullying added to section 48900 of the Education Code as it has been amended. Please see previous Lozano Smith Client News Briefs for more information on bullying policy and regulations: June 2012, May 2012 and October 2011. Educational agencies should also ensure their procedures provide that when a special education student is bullied, or engaged in bullying, the student’s IEP team considers whether the student may have been denied a meaningful educational benefit, and if so, revises the student’s IEP appropriately.

Lozano Smith will be offering a number of workshops and webinars over the next few months that discuss these topics in greater depth, see our 2013-2014 Course Catalog for more information. If you have further questions on bullying, 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

Deborah R. G. Cesario
Partner
San Diego Office
dcesario@lozanosmith.com

Aimee Perry
Associate
Sacramento Office
aperry@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.

REMINDER: School Districts Must Prequalify Contractors on Certain Projects Beginning 2014

September 2013
Number 55

Adding to the complexity of shepherding a project through public bidding, school districts will soon be required to prequalify bidders on many projects. Lozano Smith has prepared the tools to navigate the impact of this new law. More details and additional guidelines on prequalification rules will be discussed during Lozano Smith’s free webinar on Thursday, September 19, 2013 at 10:00 a.m.

School districts with an average daily attendance of 2,500 or more awarding a construction project of $1,000,000 or more on or after January 1, 2014, will be required to prequalify contractors, if the project is funded in whole or in part with state bond funds. The intent behind Public Contract Code section 20111.6 added by Assembly Bill 1565, is to ensure that the bidding pool is comprised of experienced, qualified and financially sound contractors in order to increase the quality of public school construction and decrease delays and costs associated with unsatisfactory contractors. School districts that are not required to use prequalification under the new law may still elect to do so, as was previously the law.

Contractors who must prequalify for such projects include general contractors, as well as mechanical, electrical and plumbing subcontractors. Districts may elect to prequalify contractors on a project-by-project basis, or establish a process for prequalifying prospective bidders on a quarterly or annual basis, in which case contractors that satisfactorily prequalify will remain prequalified for one year.

Contractor prequalification must include the submission of a standardized prequalification questionnaire and financial statement verified under oath, and a uniform system for rating the bidders on the basis of the questionnaire and financial statement. The questionnaire, financial statement, and bidder rating system must at a minimum include the issues covered by the standardized questionnaire and model guidelines for rating bidders developed by the Department of Industrial Relations.

A district must also provide prospective bidders with a standardized proposal form, which must be submitted as the bid. A school district cannot accept a proposal form from a contractor if the contractor or any of the contractor’s listed subcontractors who are required to prequalify has failed to submit a completed standardized questionnaire and financial statement within ten business days prior to the bid opening date, or has not been prequalified for at least five business days prior to the bid opening date. A school district must also make available to all bidders a list of district prequalified general contractors and electrical, mechanical, and plumbing subcontractors, at least five business days prior to the bid opening date.

The board of the school district must adopt a uniform system for rating bidders based on the standardized questionnaire and financial statement. Districts should start preparing and processing these documents now in order to be ready for projects in 2014. Lozano Smith is developing prequalification documents which may be used to meet the requirements of this new law.

If you have any questions regarding the prequalification documents or the process, 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

Megan Macy
Partner
Sacramento Office
mmacy@lozanosmith.com

Devon B. Lincoln
Partner
Monterey Office
dlincoln@lozanosmith.com

Tyler B. Dockins
Associate
Monterey Office
tdockins@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 Narrowly Construes the Education Code Requirements for Counting “Days” to Become a Permanent Certificated Employee

September 2013
Number 54

A recently published California appellate opinion provided school districts with needed direction on determining when a probationary employee has attained permanent status. The case concerned Education Code section 44908, which provides that “a complete school year” for a probationary certificated employee is “at least 75 percent of the number of days” for that year. In order for a certificated employee to move from probationary to permanent status, they must complete two complete consecutive school years. In Cox v. Los Angeles Unified School District (July 23, 2013) __ Cal.App.4th __ 2013 WL 4477843, the court of appeal addressed how to calculate workdays and a complete school year for the purpose of a probationary employee attaining permanent status.

In Cox, a school district hired Erica Cox, a high school counselor, as a probationary certificated employee. Following her hire, Ms. Cox completed one school year that counted towards establishing permanent status. However, she left for two months of maternity leave during her second year of employment. As a result, she only worked 135 days of the 136.5 days that she was required to work to meet the 75% threshold for serving a complete school year, and thus failed to serve the two complete consecutive school years necessary to attain permanent status. During her third school year, the district informed Ms. Cox that it was not going to retain her as an employee.

Ms. Cox opposed the district’s decision, arguing that the district had not properly determined her employment status when it classified her as a probationary employee for her third school year. She argued that she had worked two complete consecutive school years and attained permanent status. Ms. Cox predicated this argument on two alternative bases: (1) she worked thirty hours during her maternity leave, which amounted to an additional five days of employment; and (2) she worked a partial day of “3.5 hours” during her full-time employment period that would elevate the percentage of days she completed up to 74.7%, which she argued should be rounded up to the “complete school year” requisite of 75%. An appellate court rejected both of Ms. Cox’s arguments.

Education Code section 44975 expressly states that time during which a leave of absence is taken by a probationary certificated employee shall not be considered employment within the meaning of a “complete school year.” The Cox court interpreted this section to also encompass time spent working on school district business. Furthermore, the court determined that the Education Code phrase “75 percent of the number of days” refers to the term “days” literally. The court held that a district or employee is not permitted to substitute “hours” for “days” or round up percentages when determining employment status.

If you have any questions regarding the Cox decision, or other questions regarding determining an employee’s status, 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

Dulcinea Grantham
Partner
Walnut Creek Office
dgrantham@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.

New Prop. 39 Bond Accountability Requirements for School Districts and Community College Districts

September 2013
Number 53

On August 12, 2013, Governor Brown signed Senate Bill (SB) 581, effective January 1, 2014, relating to school bonds and accountability. SB 581 requires that the governing board of a school district or community college district provide its Citizen’s Oversight Committee (COC) with responses, within three months, to any finding, recommendation, or concern addressed in the annual independent performance and financial audits. SB 581 also requires that such audits be submitted to the COC at the same time as they are submitted to the school district or community college district, and no later than March 31 of each year. Currently, the law does not require school districts and community college districts to submit responses to such audits, and only requires that such audits be delivered to the COC by March 31 of each year.

A COC is required to be created pursuant to Article XIII A of the California Constitution to provide oversight on the issuance of any school bonds issued under Prop 39. Prop 39 allows for passage of a bond for the construction, rehabilitation, or replacement of school facilities by a 55% majority vote if the proposition includes specified accountability requirements. A COC is charged with informing the public about expenditures of Prop 39 bond proceeds, reviewing the audits, and inspecting school facilities financed with Prop 39 bond proceeds. A COC also reviews and recommends cost saving measures for school districts and community college districts.

If you have any questions regarding how SB 581 will impact the substance and delivery of annual audits, content of audit responses, or issuance of Prop. 39 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.