New Law Limits Government Searches of Cell Phones and Other Devices

December 2015
Number 82

AUTHOR’S NOTE: Due to the significant legal changes caused by Senate Bill (SB) 178, we recommend that all government agencies, including school districts, contact legal counsel for guidance before searching any electronic devices in the possession of staff or students. Government agencies should further update any relevant policies and procedures, and provide training to all staff whose job functions may include searching the electronic devices of others. SB 178 becomes effective on January 1, 2016.

According to its author, SB 178 was introduced to update existing laws to protect privacy and free speech in the digital age by “instituting a clear, uniform warrant rule for California law enforcement access to electronic information, including data from personal electronic devices, emails, digital documents, text messages, metadata, and location information.” SB 178 responds to an increase in warrantless government demands to cell phone providers and social media websites for the personal data of users. It also codifies two recent court decisions requiring law enforcement to obtain a warrant before obtaining GPS information for vehicle tracking, and before searching data contained on a cell phone seized during an arrest.

Under SB 178, a government entity is prohibited from doing the following:

  1. Compelling production of information directly from a service provider (e.g., AT&T, Verizon);
  2. Compelling production from anyone other than the authorized possessor of the device; and
  3. Accessing information by means of physical interaction or electronic communication with the device (e.g., physically taking the device from the person
    and searching it or searching the device by electronic means), except when one of the following applies:
  • Pursuant to a warrant;
  • Pursuant to a wiretap order;
  • With the specific consent of the authorized possessor of the device;
  • With the specific consent of the owner of the device, only when the device has been reported as lost or stolen;
  • With a good faith belief that it is required in an emergency to prevent death or serious physical injury;
  • With a good faith belief that the device is lost, stolen, or abandoned, and only to identify, verify, or contact the device’s owner or authorized
    possessor; and
  • If the device is seized from a correctional inmate or is unclaimed in a correctional facility, except as otherwise prohibited by law.

The new law defines “specific consent” to mean consent provided directly to the government entity seeking information, including when the communication was directed at an audience that included the government entity.

If data is obtained in violation of SB 178, an individual may move to suppress the data in any trial, hearing, or proceeding in which it is introduced as evidence. Furthermore, the Attorney General may commence a civil action to compel a government entity to comply with the new law. Currently, a violation of SB 178 does not carry any criminal penalties.

The full implications of this new law are uncertain for government entity employers as well as school and community college districts. Prior to searching any electronic devices possessed by employees or students, a government entity should contact legal counsel to evaluate how the new law impacts such actions. Government employers may wish to consider providing information or training to staff members who perform searches in the scope of their duties. Additionally, government employers may need to revise policies and procedures to incorporate specific consent as a term and condition of use of the electronic device. For more information, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

William P. Curley III
Senior Counsel
Los Angeles Office
wcurley@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@lozanosmith.com

©2015 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 Extends the Scope of Design Immunity

December 2015
Number 81

In a unanimous decision, the California Supreme Court recently issued a ruling that extends the scope of design immunity for public agencies. Hampton v. County of San Diego (Dec. 10, 2015, S213132) 2015 Cal.Lexis 9854 (Hampton) clarifies that a public agency need not necessarily show that an employee approving a public works project followed, or was even aware of, applicable design standards to claim immunity. However, such an inquiry is still relevant in deciding whether or not the plan or design was reasonable.

Government Code section 830.6 gives immunity to public agencies where defective designs in certain public projects result in injury to third parties. The most common example of such projects are traffic improvements, where an injured party asserts that the road or signage condition resulted in an accident and injury. To be eligible for immunity in such instances, the public agency must show the following: (1) a causal relationship between the plan or design and the accident; (2) discretionary approval of the plan or design prior to construction; and (3) substantial evidence supporting the reasonableness of the plan or design. If a public agency is successful in proving these three elements then it will not be held liable for injuries caused by dangerous conditions of public property.

In Hampton, the Supreme Court evaluated the second element and determined that a public agency is immune from civil liability even when an employee who approves the plan was not aware of the particular design standards. The plaintiffs in question were involved in a car accident while attempting to turn onto a two-lane thoroughfare from a rural side road. The plaintiffs alleged that the County had created a dangerous condition in planning the intersection by failing to account for a “high, raised embankment covered with shrubs.” They asserted that the failure to account for the embankment rendered visibility plainly inadequate under County standards. The County argued that it was immune under section 830.6, offering design plans for the intersection in question.

The Supreme Court agreed with the County, determining that section 830.6 was applicable because the very purpose of the statute was “to avoid second-guessing the initial design decision adopted by an employee vested with authority to approve it….” The Court confirmed that a public agency is not required to show that the designated employee considered applicable standards when approving the plan or was authorized to deviate from any possibly relevant standards. What is essential is that the employee approving the plan or design had authority to do so.

While this case helps expand one aspect of section 830.6 immunity, public agencies should be mindful of the remaining requirements. The Court cautioned that while an employee need not be aware of applicable standards when approving a plan to satisfy the second element, such circumstances could be relevant as to whether or not the plan was reasonable under the third element. As such, it remains important that public agencies remain vigilant in considering applicable standards as well as any other requirements when implementing new plans or designs.

For more information on public agency immunity, please contact one of our nine 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

Shawn A. VanWagenen
Associate
Fresno Office
svanwagenen@lozanosmith.com

©2015 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.

President Signs Into Law “Every Student Succeeds Act” Overhauling “No Child Left Behind”

December 2015
Number 80

President Obama has signed into law the “Every Student Succeeds Act” (ESSA), a sweeping overhaul of “No Child Left Behind” (NCLB) that eases the burden of the NCLB’s testing and reporting requirements and restores local autonomy to schools and districts by making states responsible for students’ academic achievement. The ESSA reaffirms the notion that local leadership is best for local schools by overwhelmingly shifting authority from the federal government to the states.

Under the ESSA, the federal “adequate yearly progress” accountability system is replaced by state-designed systems, under which states develop the criteria for identifying and supporting struggling schools. State education agencies must demonstrate that they consulted local school districts in developing their plans, and the plans must be submitted to the federal Secretary of Education to ensure compliance with the law. The most important change regarding accountability is that states are now free to use measures other than test scores as evidence of progress, such as student engagement, access to and completion of advanced coursework, and school climate and safety.

The ESSA, like the NCLB, still requires states to test annually reading and mathematics in grades 3 through 8, and at least once in grades 9 through 12, and further maintains NCLB’s requirement that science tests be given at least three times between grades 3 through 12. Unlike NCLB, however, the ESSA allows states flexibility when assessing students. A state may pilot new testing variables and performance based tests so long as the assessments are valid and reliable.

The ESSA includes several measures to ensure reporting and compliance. First, the law caps the number of alternative assessments to be provided to students with disabilities at 1%, with the goal of ensuring that only those students with the most severe cognitive disabilities are given alternate achievement standards. The ESSA also moves English language accountability standards from Title III to Title I, to refocus efforts on providing support for English language learners. Finally, the ESSA requires states to focus on improving student learning in the lowest performing 5% of schools and any school in which any discrete group of students is consistently underperforming based on the state’s standard.

Further underlining its emphasis on local decision-making, the ESSA contains specific language crafted by the National School Boards Association that curtails federal influence in local school administration, including in the development and expenditure of school budgets. The law now explicitly requires the federal Secretary of Education to “consider input from stakeholders” before issuing any non-regulatory guidance which would impact local decision making.

In other changes, the ESSA eliminates NCLB’s requirement that all teachers be “highly qualified,” which previously required teachers to have demonstrated competence in the core academic subject they teach. Instead, the ESSA requires districts to hire teachers who are determined to be effective at teaching students using locally determined standards. In eliminating the onerous “highly qualified” requirements, the ESSA intends to provide school districts with flexibility and responsibility in selecting teachers to teach in their classrooms.

The ESSA also authorizes states to use funding targeted at the improvement of teacher quality. Specifically, states are encouraged to implement teacher evaluation systems, develop mechanisms for effectively recruiting and retaining teachers, and reform teacher certification, recertification, licensing and tenure systems. The ESSA further emphasizes the importance of improving equitable access for all students to effective teachers who are able to improve student academic achievement. The ESSA also requires local education agency plans to address disparities that result from low-income and minority students being taught by ineffective, inexperienced, or out-of-field teachers at higher rates than their peers.

Finally, the ESSA allocates funding through Teacher and School Leader Incentive Fund Grants for the development, implementation, improvement or expansion of performance-based compensation systems and for staff retention and recruiting for teachers, principals and other school leaders.

California and the other states must now grapple with the increased autonomy and flexibility offered by the ESSA, so it remains to be seen how the ESSA will be implemented in this state. Lozano Smith will continue to monitor this new law and will provide further updates as needed.

If you have questions about the ESSA or accountability measures generally, please contact one of our nine 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

Dulcinea Grantham
Partner
Walnut Creek Office
dgrantham@lozanosmith.com

Inna Volkova
Associate
Fresno Office
ivolkova@lozanosmith.com

Carey Hawkins Ash
Associate
Sacramento Office
cash@lozanosmith.com

©2015 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.

Ninth Circuit Underscores School Districts’ Affirmative Obligation to Initiate Special Education Due Process

December 2015
Number 79

Making clear that school districts should not ignore their obligations to initiate due process when parents refuse to consent to necessary components of special education, the Ninth Circuit Court of Appeals recently reversed and remanded the decision of a district court on the subject. In I.R. v. Los Angeles Unified School District, (9th Cir., November 17, 2015) 2015 U.S. App. Lexis 19900 (I.R.), the Ninth Circuit held that “school districts in California must comply with the additional requirement imposed by the California Education Code of initiating a due process hearing if agreement between the district and the parent on an appropriate placement cannot be reached” and “a year and a half is too long for a school district to wait to initiate a due process hearing pursuant to California Education Code § 56346(f).” This decision is applicable to school districts and other local educational agencies responsible for the offer and provision of a free appropriate public education (FAPE) for special education students.

In I.R., a parent had partially consented to several Individual Education Programs (IEPs) over a span of a year and half, while failing to consent to the Los Angeles Unified School District’s (LAUSD) offer of placement in a special education environment. As a result, I.R. remained in a general education classroom with a special education aide. I.R.’s mother ultimately filed a request for due process hearing on the issue of whether the school district failed to provide the student a FAPE during the relevant time period.

At the administrative level, an Administrative Law Judge (ALJ) held that the school district offered FAPE. The ALJ noted that California law requires a school district to file for due process when it believes that a parent failed to consent to a portion of the IEP that the school district believes is necessary to provide a FAPE. However, in this case, the ALJ did not hold LAUSD liable for failing to file for due process. Instead, the ALJ focused on I.R.’s mother’s refusal to provide consent, which LAUSD argued (and the ALJ agreed) prevented LAUSD from implementing and providing the full offered FAPE.

I.R.’s mother appealed the ALJ’s decision to federal district court, which affirmed the ALJ’s decision. Upon review, the Ninth Circuit disagreed with the ALJ’s decision and the district court’s affirmation of the ALJ’s decision. In this case, I.R.’s mother had consented to special education and related services for I.R., but had not consented to placement. Therefore, LAUSD was obligated to file for due process hearing pursuant to California Education Code § 56346, subdivision (f), which provides that a due process hearing shall be initiated if the school district determines that the proposed special education program component “to which the parent does not consent is necessary to provide” a FAPE. Accordingly, the Ninth Circuit noted, “In effect, § 56346(f) compels a school district to initiate a due process hearing when the school district and the parents reach an impasse.”

The Ninth Circuit also opined that California Education Code § 56346(f) outlines the process to be followed after an IEP is presented to a parent and the parent does not consent to all components of the IEP. In these situations, the Ninth Circuit held that the school district must first determine whether the proposed special education component “is necessary to provide a FAPE.” If so, the district must initiate a due process hearing “expeditiously” and “cannot opt to hold additional IEP meetings or continue the IEP process in lieu of initiating a due process hearing.”

While the Ninth Circuit does not provide a definitive timeline for filing for due process after a parent fails to provide consent for a necessary component of the IEP to provide a FAPE, the Ninth Circuit affirmatively states that the time line in this case, over one year, was too long.

This case affects all California local educational agencies responsible for offering and providing a FAPE as this case is binding precedent. This case makes clear that these issues should be addressed as they arise and affects the response to the frequent problem of parents consenting to part, but not all, of a school district’s offer of FAPE. An internal review of files may be prudent to determine whether a school district has outstanding IEPs of this nature.

If you have any questions regarding the I.R. decision, or about special education in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Summer D. Dalessandro
Senior Counsel
San Diego Office
sdalessandro@lozanosmith.com

Colleen R. Villarreal
Associate
Sacramento Office
cvillarreal@lozanosmith.com

©2015 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.

Under the Public Records Act, Local Agencies Are Now Required to Create and Maintain a Catalog of Enterprise Systems

December 2015
Number 78

On October 11, 2015, Governor Jerry Brown signed into law Senate Bill (SB) 272, which requires local agencies to create a catalog of “enterprise systems,” as defined, as part of implementing the California Public Records Act (PRA). This bill does not currently apply to local educational agencies.

SB 272 becomes effective January 1, 2016. It adds section 6270.5 to the Government Code, which requires local agencies to create a catalog of “enterprise systems.” “Enterprise system” is defined under this section as “a software application or computer system that collects, stores, exchanges, and analyzes information the agency uses.” Enterprise systems are also limited to multidepartmental systems or systems that contain information collected about the public and systems of record, meaning they serve as an original source of data within the agency. Finally, enterprise systems do not include IT security systems or records collected and stored by IT, nor does it include physical control systems such as video monitoring, mechanical control systems such as street lights or water functions, or systems related to emergency services.

The new law lists several items that must be included in the catalog of enterprise systems, such as the current vendor for the system, the current product, the system’s purpose, a description of the categories of data, the department that oversees the system, and how frequently data is collected and updated. The catalog system must be posted in a prominent place on the agency’s website, and made available upon request in the agency’s office. Local agencies must have these catalogs completed and posted by July 1, 2016, and then must update them annually.

Government Code section 6270.5 explicitly states it is not intended to provide public access to records not otherwise available, or to change the way public records are requested. Also, if the agency determines under the Government Code section 6255 balancing test that the public interest weighs in favor of nondisclosure, the agency can instead provide just a name or identifier for the system. However, as with all PRA requests, nondisclosure under the balancing test should be well documented to support any potential push-back from the requester. Local agencies should carefully weigh the governmental interests against the public’s interest in disclosure, and when possible, do so with the advice and assistance of legal counsel.

SB 272 introduces a new law and there may be impacts or implementation issues not yet addressed or contemplated by the Legislature. Moreover, while this new law does not currently apply to local educational agencies, this law may later be expanded to cover local educational agencies. Local agencies should watch for further updates in the coming year.

For more information on SB 272, its implications for local agencies, and the complex nature of PRA requests, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

William P. Curley III
Senior Counsel
Los Angeles Office
wcurley@lozanosmith.com

Samantha Corner
Associate
Monterey Office
scorner@lozanosmith.com

©2015 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.

County Committees May Now Decrease the Governing Board of Small School Districts from Five to Three Members

December 2015
Number 77

Small school districts sometimes have difficulty finding people to fill all seats on a five member board. To address this issue, the California legislature recently passed Assembly Bill (AB) 331, providing county committees on school district organization (County Committees) the authority to decrease school district governing boards from five members to three members in districts with an average daily attendance (ADA) of less than 300 during the preceding year. Specifically, AB 331 amends Education Code section 5019 and is effective January 1, 2016.

While AB 331 provides County Committees with broader authority in adjusting the composition of school boards, it does not alter the process by which such changes are made. Under that process, a reduction from five to three members may be initiated in one of three ways: (1) a petition by the school district’s electorate; (2) a resolution adopted by the school district; or (3) a resolution adopted by the County Committee.

If you have any questions regarding this legislation or school district reorganization in general, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

 

Written By

Trevin Sims
Partner
Los Angeles Office
tsims@lozanosmith.com

William P. Curley III
Senior Counsel
Los Angeles Office
wcurley@lozanosmith.com

Ryan P. Tung
Associate
Los Angeles Office
rtung@lozanosmith.com

Desiree Serrano
Associate
Los Angeles Office
dserrano@lozanosmith.com

©2015 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.

State Monitoring of Title IX Compliance is Beginning

December 2015
Number 76

The California Department of Education recently issued the 2015-2016 Education Equity program instrument (Guidance), which is used to monitor a local educational agency’s (LEA) compliance with laws on equity in the treatment of students. Of particular note, the Guidance identifies a new Title IX reporting requirement that was enacted by Senate Bill (SB) 1349 in 2014.

SB 1349 added section 221.9 to the Education Code, which requires that beginning with the 2015-2016 school year school sites, including charter schools, to publish: (1) total school enrollment, classified by gender; (2) total number of students who participate in athletics, classified by gender; and (3) total number of school athletic teams, classified by gender, sport, and competition level. This information must be posted to the school’s website. If the school does not have a website, the information must be listed on the District’s website separately for each individual school.

Although the first posting is not required until the end of the year on June 30, 2016, the law goes into effect in the current school year. Thus, since the law requires the posting to reflect the total number of players on a team roster “on the official first day of competition,” and that first day of competition would have been during the 2015-16 school year, each school site should begin compiling this information now. Posting should then occur by June 30, 2016, reflecting the current school year numbers. In addition to collecting the requisite information and preparing to post at the end of the school year, LEA’s should also consider updating their board policies on athletic competition to reflect that this information will be compiled and made publicly available.

The legislative history of SB 1349 indicates that a major purpose behind the bill was to make it easier to monitor and enforce Title IX and state requirements for gender equity in public school athletics. These requirements were recently reinforced by the federal Ninth Circuit Court of Appeal in Ollier v. Sweetwater Union High School District (9th Cir. 2014) 768 F.3d 843, a case in which the court found the District liable for failing to provide substantially equal opportunities for female athletes. For more information on the Ollier case, please see Lozano Smith’s Client News Brief No. 74 (October 2014).

The inclusion of this new reporting requirement in the Guidance indicates the CDE is already gearing up to monitor/review this educational equity issue. The full text of the Guidance can be read here. The recent Ollier case, SB 1349, and the Guidance demonstrate an increasing focus on Title IX monitoring. Now, more than ever, LEA’s must ensure compliance with Title IX’s numerous requirements.

Given the significance of Title IX requirements and the ability for attorney’s fees to be collected if enforcement actions are successful, Lozano Smith has formed a Title IX Impact Team, spearheaded by partner Michael Smith and Senior Counsel Michelle Cannon. This Impact Team, made up of attorneys across multiple practice areas, is leading the firm’s efforts to provide comprehensive trainings and advice addressing legal needs related to Title IX.

In addition to athletics, the Title IX Impact Team will focus on how Title IX applies to all aspects of gender discrimination in education, including sexual harassment, pregnancy discrimination, and harassment or bullying based on sexual orientation.

If you have questions about Title IX or desire a Title IX training, please contact one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.

Written By

Michael Smith
Partner
Fresno Office
msmith@lozanosmith.com

Michelle L. Cannon
Senior Counsel
Sacramento Office
mcannon@lozanosmith.com

Maryn Oyoung
Associate
Walnut Creek Office
moyoung@lozanosmith.com

©2015 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.