State, Feds Reach Settlement Agreement Regarding the Provision and Monitoring of Services to English Language Learners

September 2016
Number 67

On September 8, 2016, the United States Department of Justice (DOJ) reached a settlement agreement with the California Department of Education and State Board of Education (CDE) to improve the CDE’s compliance monitoring systems and ensure provision of language instruction services to English learner (EL) students in the state’s public schools. In light of this agreement, school districts should expect changes and closer scrutiny from the CDE with respect to monitoring and compliance efforts for ensuring language services to EL students.

The settlement agreement follows the DOJ’s 2015 finding that the CDE was out of compliance with the federal Educational Opportunities Act of 1974 (EEOA). The EEOA prohibits state and local education agencies (LEA) from denying equal educational opportunities to any individual “on account of his or her race, color, sex, or national origin.” (20 U.S.C. § 1703.) Such denial of opportunity occurs if, among other things, a state or local education agency fails to take appropriate action to overcome language barriers that impede students’ equal participation in instructional programs.

In 2013, the DOJ began an EEOA compliance review of California’s system for monitoring the provision of English language services to EL students. In May of 2015, the DOJ found that the CDE had failed over the course of a decade to respond timely or appropriately to school districts’ certified reports showing that over 20,000 EL students were not receiving instructional language services. The CDE disagreed with the DOJ’s findings and denied liability under the EEOA.

To resolve the dispute, the CDE and the DOJ reached a settlement agreement. The agreement requires the CDE to complete certain actions over the next two years relating to responding to LEA data regarding unserved EL students, federal program monitoring of LEA compliance with the EEOA and other laws and professional development for CDE monitoring consultants. Some key terms of the settlement agreement require the CDE to:

  • Respond in a timely and effective manner to credible evidence that LEAs are failing to serve EL students, including notifying LEAs of violations and providing a protocol by which they must submit to the CDE documented evidence that resolves the violations;
  • Provide written notice to all LEAs who reported unserved ELs in their 2015-2016 CALPADS 2.4 report, directing the LEAs to provide EL services immediately and requiring the LEAs to submit evidence of compliance to the CDE;
  • When selecting LEAs for onsite and online monitoring reviews in the future, consider the LEA’s prior data regarding unserved ELs in CALPADS 2.4 reports since 2015-2016, and specifically include charter schools in the selection process for such reviews each year;
  • Improve the CDE’s online monitoring tool and require that LEAs found out of compliance with certain requirements in the online tool receive onsite monitoring within the following two years if they fail to provide adequate evidence that the noncompliance has been resolved; and
  • Develop and implement policies and training on the monitoring, review and corrective action processes of the CDE’s monitoring of schools for EL service violations and ensure that all EL monitoring consultants receive such training.

The DOJ will monitor the CDE’s compliance with the settlement agreement and will require CDE to report on its efforts annually between 2016 and 2018.

This settlement agreement serves as a reminder to all LEAs of the importance of meeting their obligations under state and federal laws to provide English language instruction to EL students.

Separately, the United States Department of Education released what it billed as “significant guidance” on September 23, 2016, intended to help states and LEAs meet their obligations to EL students under the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015. The guidance, which can be found here, addresses how Title III funds can be used to provide supplemental services to improve English learners’ academic language and English language proficiency, as well as new reporting requirements that will become effective on July 1, 2017.

If you have any questions about this settlement agreement, responding to notices from CDE regarding unserved EL students or requirements for English language instruction services in general, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roberta Rowe

Partner

Karin Anderson

Associate

 

©2016 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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New State Guidance Pending on English Learners in Special Education

September 2016
Number 66

Assembly Bill (AB) 2785 was signed by the Governor on September 24, 2016. AB 2785 requires the California Department of Education (CDE) to develop a manual providing guidance to local educational agencies (LEA) on identifying, assessing, supporting and reclassifying English learners who may qualify for special education services, and also, pupils with disabilities who may be classified as English learners. Other states offer similar guidance.

Last year, the U.S. Department of Justice (DOJ) alleged that California failed to adequately address reports dating back to the 2007-2008 school year indicating that more than 20,000 students in the state’s English learner population of 1.4 million had not received proper instruction. In a recent federal settlement with the DOJ, the CDE and State Board of Education (SBE) agreed to implement new training and monitoring procedures to ensure language education is provided for all students designated as English learners. (See 2016 Client News Brief No. 67.)

With over 700,000 pupils with disabilities in California public schools, some of whom are English learners, the passage of AB 2785 follows decades of concern regarding the over- and under-identification of English learners in special education. Existing special education law requires LEAs to “search and serve” individuals with exceptional needs, from birth through 21 years of age. As special education relates to the English learner population, research has uncovered longstanding issues, such as difficulty distinguishing between language needs and disabilities, poor reclassification practices and insufficient referral and intervention strategies.

AB 2785 seeks to ameliorate these problems through the provision of state-issued guidance. The development of the manual would include the review of other available and relevant manuals and resources and consultation with experts and practitioners in special education and/or English learner education. The manual is to contain evidence-based and promising practices, and address topics such as how to accurately identify English learners who may have disabilities, how to accurately classify pupils with disabilities as English learners, early interventions, referral and reclassification processes, assessments, the development of Individualized Education Programs (IEPs) for English learners and the exit of English learners from special education.

AB 2785 requires the CDE to develop the manual on or before July 1, 2018, for voluntary use by LEAs, charter schools and state special schools. With the availability of this guidance, combined with the obligations outlined in the recent federal settlement with the DOJ, English learners will hopefully have their educational needs better served and districts will have more clarity regarding their obligations to these students.

Separately, the United States Department of Education released what it billed as significant guidance on September 23, 2016 intended to help states and LEAs meet their obligations to English learners under the Elementary and Secondary Education Act of 1965, as amended by the Every Student Succeeds Act of 2015. Among other things, the guidance, which can be found here, addresses a new requirement to separately report the progress English learners with disabilities are making toward English proficiency.

For more information on AB 2785 or on requirements for serving special needs students who are English learners, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Garcia

Partner

Joanne Kim

Associate

 

©2016 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’s Discipline of Student for Off-Campus Sexual Harassment Proper under First Amendment

September 2016
Number 65

In C.R. v. Eugene School District 4J (9th Cir., Sept. 1, 2016) __ F.3d__ [2016 U.S.App. LEXIS 16202], the Ninth Circuit Court of Appeals considered an issue of first impression: Whether a school may discipline a student for off-campus sexual harassment without violating the student’s First Amendment free speech rights. Based on the facts, the Ninth Circuit held that disciplining a student for off-campus sexual harassment of fellow students did not violate the student’s free speech rights.

To date, judicial opinions considering issues at the intersection of off-campus conduct and student free speech rights have centered on electronic communications and student expression on the Internet and social media outlets. In C.R., the student’s speech occurred in person, as school was letting out, and only a few hundred feet from the school’s property line. Following an investigation, the student was issued a two day out-of-school suspension for his sexually suggestive joking directed at two younger students walking home from school. The student subsequently challenged the suspension on First Amendment and due process grounds.

The Ninth Circuit has previously held that not all off-campus speech is beyond the reach of school officials. In Wynar v. Douglas County Sch. Dist. (9th Cir. 2013) 728 F.3d 1062, 1068, the Ninth Circuit identified two tests used by other circuit courts to determine when a school may regulate off-campus speech. The first is a nexus test, which requires asking whether a student’s off-campus speech was tied closely enough to the school to permit school officials to regulate it. The second test requires determining whether it was reasonably foreseeable that the off-campus speech would reach the school.

If the off-campus speech meets the nexus and foreseeability requirements, the standards offered by the United States Supreme Court in Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969) 393 U.S. 503 are applied to evaluate the constitutionality of the school’s imposition of the discipline and/or regulation of student expression. Under Tinker, schools are permitted to restrict student speech if the speech might reasonably lead school authorities to forecast substantial disruption of or material interference with school activities, or alternatively, if the speech collides with the rights of other students to be secure and to be let alone. (Id., at pp. 508, 514.)

In the current case, the school’s actions met the nexus requirement because although the sexual harassment took place off school property, it had a close relationship to the school. In reaching this conclusion, the court noted that all individuals involved were students at the school, had been let out minutes before the incident occurred and the incident took place only a few hundred feet from the school door in a park that shared a boundary with school property. The school also met the foreseeability test because the incident occurred within close proximity of the school, and administrators could reasonably expect that the harassed students may be distracted during school hours by the prospect of impending harassment.

Applying Tinker, sexual harassment implicates the rights of students to be secure, because it threatens the students’ sense of physical, emotional and psychological security. Even if sexual harassment is only verbal, the threat of unwanted physical intrusion is implicit. Here, the offending student’s speech interfered with the younger students’ rights to be secure and let alone, and thus the discipline applied was permissible under Tinker.

The Ninth Circuit court also rejected the plaintiff student’s procedural and substantive due process claims. When a student is suspended for 10 days or fewer, the Constitution only requires informal procedural due process. In C.R., the student received informal notice of the charges and was provided a chance to tell his side of his story, as required. While the student argued that the school did not provide him with sufficient notice as to the specific nature of the allegations, the Constitution did not require the school to inform the student of the specific rules violated.

The student in C.R. also claimed that his school violated his substantive due process rights by recording the reason for his suspension as “harassment – sexual.” The student argued that the stigma from such a label was so strong that it deprived him of his right to a good reputation. The appeals court held, however, that there are no due process rights to maintaining non-stigmatizing school disciplinary records.

While the C.R. opinion originates from Oregon, the court’s First Amendment analysis would be the same in California, and under California’s Education Code provisions regarding student discipline and student free speech rights there is no apparent reason that the same outcome would not result under state law.

For further information regarding the discipline of students for off-campus speech, or student free speech rights in general, please contact the authors of this Client News Brief or an attorney at one of our 10 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 Simmons

Partner

Kristy Boyes

Associate

 

©2016 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 Agencies May Now Have Their Code Enforcement Officers Certified

September 2016
Number 64

The Governor recently signed Assembly Bill 2228, establishing a program for California code enforcement officers to become certified. The purpose of the program, which is voluntary, is to provide a mechanism for code enforcement officers to become trained in the substantive law and legal processes affecting their duties while also reducing the risk of liability for the agency. The program will ensure uniform and consistent training throughout the state, increasing efficiency and productivity.

The bill authorizes the California Association of Code Enforcement Officers (CACEO) to develop and maintain standards for the designation of Certified Code Enforcement Officers (CCEO); establish minimum training qualifications and experience requirements for applicants to qualify as a CCEO; qualify cities, counties and accredited educational institutions as Certified Code Enforcement Officer Education Program Providers; set continuing education standards; and set annual fees and discipline procedures regarding CCEO eligibility. Under the bill, CACEO becomes an agency with state authority to regulate and maintain standards for CCEOs, similar to how the State Bar of California regulates licensed California attorneys.

Lozano Smith has been partnering with clients for over 25 years to provide training to code enforcement officers. Lozano Smith attorneys regularly work with agency code enforcement officers, whether they are in designated positons, law enforcement staff, planning staff or others, to ensure compliance with applicable local codes, state statutes and due process requirements. Lozano Smith will be closely monitoring CACEO’s development of the training curriculum.

Once the curriculum is approved, Lozano Smith attorneys will be able to provide the necessary training for an agency to qualify as a program provider, or otherwise work on a regional level to ensure small agencies have the same opportunities to have their code enforcement officers certified. In addition, clients will be able to rely on Lozano Smith’s expertise in the form of continued education courses that will provide the necessary credits in maintaining a code enforcement officer’s certification.

If you have questions regarding AB 2228, or have current code enforcement training needs, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

David Wolfe

Partner

William Curley III

Senior Counsel

Nicholas Felahi

Associate

 

©2016 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.

Legislature Imposes New Procedures for Selection of Lease-Leaseback Contractors

September 2016
Number 63

Scrutiny regarding school districts’ use of lease-leaseback (LLB) construction contracts has prompted the Legislature to impose additional contracting requirements that will make the use of LLB more complicated, and will limit a school district’s discretion in selecting the LLB contractor. Assembly Bill (AB) 2316, which the Governor signed on September 23, 2016, will require school districts to use a comprehensive “best value” selection process for LLB contractors. AB 2316 also grants specific financial protection to contractors who were awarded LLB contracts prior to July 1, 2015. The bill goes into effect on January 1, 2017.

What is Lease-Leaseback?

Education Code section 17406 permits a school district to lease a site to a contractor for $1 per year for the purpose of the contractor performing construction on that site. The contractor typically leases the site back to the school district in exchange for payments to compensate the contractor for the cost of construction. Until now, section 17406 has specifically permitted selection of the LLB contractor without advertising for bids and without requiring any selection process.

Recent History of Lease-Leaseback

The law related to LLB contracts has changed significantly over the last two years. Effective January 1, 2015, AB 1581 required prequalification for contractors on LLB projects that were over $1 million, funded by the state and for districts with an average daily attendance (ADA) of 2,500 or more. (Ed. Code, § 17406; Pub. Contract Code, § 20111.6; see 2014 Client News Brief No. 71.) Though not a model of clarity, effective January 1, 2016, AB 566 appears to have extended prequalification to all LLB projects for districts with ADA of 2,500 or more, regardless of funding source and regardless of price. AB 566 also required use of a “skilled and trained workforce.” (See Ed. Code, §§ 17406, 17407.5; and 2015 Client News Brief No. 51.)

On June 1, 2015, an appellate court held that an LLB contract must contain provisions that reflect contractor financing and post-construction tenancy by the school district, and that an LLB contract with an entity that provided preconstruction services under a separate contract could be subject to legal challenge for a potential conflict of interest under Government Code section 1090. (Davis v. Fresno Unified School District (2015) 237 Cal.App.4th 261; see 2015 Client News Brief No. 30.)

On April 12, 2016, an appellate court agreed with the Davis court about the potential for a conflict of interest in an LLB contractor’s performance of preconstruction services under an earlier contract, but disagreed with the Davis court regarding terms required for LLB contracts, ruling that an LLB contract need not include provisions about contractor financing and post-construction tenancy. (McGee v. Balfour Beatty Construction (2016) 247 Cal.App.4th 235; see 2016 Client News Brief No. 25.) A conflict therefore exists in California courts as to what must be contained in an LLB contract.

New Procedures for Selection of Lease-Leaseback Contractor

Beginning on January 1, 2017, AB 2316 requires selection of the LLB contractor through a “best value” procedure specifically laid out in statute. Proposals submitted in response to a request for proposals (RFP) will be ranked by their best value scores and the Board must award to the contractor that submitted the sealed proposal determined by the Board to be the best value. In other words, aside from developing a scoring system for ranking the proposals, a school district will now have limited discretion in selecting its LLB contractor.

Beneficially, the bill expressly permits a school district to award a single LLB contract that includes preconstruction services, thus avoiding any potential conflict of interest issue under Davis and McGee resulting from the award of multiple contracts to the same contractor. AB 2316 also permits a school district to award the LLB contract for an agreed-upon lump sum or a fee for performing the services.

Protection for Pre-Davis Lease-Leaseback Contractors

Another significant aspect of AB 2316 is that it provides protection for contractors that entered into an LLB contract prior to July 1, 2015. For these contracts, if a court declares the contract award invalid due to a lack of competitive bidding, the contractor would be allowed to recover its reasonable costs incurred in performing the project, but not its profit. To recover such costs, the contractor must meet several requirements, such as establishing that it had a good faith belief that the LLB contract was valid.

Effect of AB 2316 on Recent Lease-Leaseback Law

The bill does not change existing statutory requirements that contractors be prequalified prior to award of an LLB contract and that they use a skilled and trained workforce. In addition, AB 2316 does not provide any guidance on what lease and payment terms are required in the LLB contract, and does not eliminate the risk of a conflict of interest caused by multiple contracts with the same contractor. (See Davis and McGee, above.)

Given the new requirements and the remaining unresolved legal issues concerning LLB, school districts considering this delivery method should consult closely with their legal counsel to evaluate the use of LLB as an alternative delivery method for construction projects.

If you have any questions about the new LLB contractor selection procedures or the legality of LLB contracts under the Davis and McGee cases, or about public works issues in general, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Devon Lincoln

Partner

Arne Sandberg

Senior Counsel

 

©2016 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.

Fate of Level 3 Developer Fees Remains Clouded

September 2016

The State Allocation Board’s (SAB) effort to authorize eligible school districts to levy Level 3 developer fees has hit another legal roadblock. On September 1, California’s Third District Court of Appeal stayed the proceedings in the trial court case pending in Sacramento County Superior Court. This appears to keep a temporary restraining order in place that prohibited the SAB from notifying the Legislature that state bond funding is no longer available.

In May, the SAB took the unprecedented step of determining that state funding is no longer available for apportionment for school facilities, triggering eligible districts’ ability to collect the higher Level 3 fees. (See 2016 Client News Brief No. 33.) The California Building Industry Association (CBIA) promptly sued, obtaining a temporary restraining order (TRO) stopping the SAB from taking further action. (See May 27, 2016 Client News Alert.)

On August 22, 2016, the trial court judge denied CBIA’s request to further enjoin the SAB from completing the steps needed to authorize the fees and concluded that the TRO would be lifted. However, CBIA appealed before a final order was issued. The appellate court issued a stay order that is vague, but Court of Appeal staff confirmed to Lozano Smith the court’s intent to halt anything in the trial court case that wasn’t finalized, including the judge’s order to lift the TRO. (For more on the trial court’s decision, see 2016 Client News Brief No. 55.) As a result, it appears that SAB remains restrained from notifying the Legislature that state funding is not available. SAB filed opposition papers with the appellate court on September 12, 2016.

Given the uncertainty about when or how the appellate court will rule on CBIA’s appeal – and the upcoming November 8 statewide vote on a $9 billion school bond that could soon provide fresh funding for facilities – it remains prudent to contact legal counsel before seeking to collect Level 3 fees.

Lozano Smith will continue to keep you informed of the latest twists and turns in the CBIA case and what they mean for school districts who are considering imposing Level 3 fees. For more information about the case or developer fees in general, please contact an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold Freiman

Partner

 

©2016 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.

Special Education Eligibility Influenced by Pre-Referral Interventions

September 2016
Number 62

A recent Ninth Circuit decision, L.J. v. Pittsburg Unified School District (9th Cir., Sept. 1, 2016, No. 14-16139) __ F.3d __ [2016 U.S.App. LEXIS 16201], underscores the importance of accounting for pre-referral interventions when evaluating special education eligibility. Rejecting the assertion that specific pre-referral services were general education interventions, the Ninth Circuit held the student required and benefitted from specialized services and should have been found eligible for special education.

Students must meet a two-prong test to qualify for special education. The first prong asks whether the student has a disability. If the answer is yes, then the eligibility team must next determine whether the student requires more specialized services than simple modification to the general school program. In other words, even with a disability, a student does not qualify for special education if general education interventions are sufficient.

A fourth-grade student, L.J., struggled with maladaptive behaviors in school and suicidal thoughts at home. He had diagnoses of bipolar disorder, oppositional defiant disorder and attention deficit/hyperactivity disorder. The District provided L.J. with interventions to address his behaviors at school, including mental health counseling services, one-on-one aide assistance, behavior supports and academic accommodations. The District assessed L.J. at various times throughout his third and fourth grade years, but determined that specialized services were not necessary due to his satisfactory performance in general education classes utilizing available interventions. The Ninth Circuit court disagreed.

The Ninth Circuit concluded that L.J. should have been found eligible for special education under the two-part eligibility test. The first prong was not in dispute because the parties agreed L.J. was a child with a disability. The critical issue was whether L.J. demonstrated a need for special education and related services, having previously received what the district referred to as general education interventions.

The Ninth Circuit court distinguished general education interventions from special education services, noting that special education services must be memorialized in an Individualized Education Plan (IEP) to guarantee their provision in the future. The court defined general education interventions as those provided to non-disabled children in the classroom, not including “specialized services,” which are those services specially designed to meet the needs of a child with a disability.

With that distinction drawn, the Ninth Circuit rejected the classification of L.J.’s services as general education interventions. Despite the availability of mental health services to all students, L.J.’s services, which included ongoing assessments, plan development, rehabilitation, therapy and intensive home-based services, were specially designed for him over the course of three school years. Additionally, the level, amount and type of service L.J. was provided was not available to his general education peers and the behaviorally-trained one-on-one aide, specially designed mental health services, extensively tailored clinical interventions provided by the school district’s behaviorist and the various academic accommodations provided in the general education classroom including teacher oversight, additional time to complete classwork or tests, shortened assignments, the option to complete tests or classwork in other rooms with one-on-one support and the option to leave the classroom at will amounted to specialized services.

Finally, the Ninth Circuit held that L.J’s impairments had been greatly ameliorated with these specialized services, which effectively demonstrated his need for special education and related services. L.J. met both prongs of the analysis and should have been made eligible for special education.

L.J. v. Pittsburg Unified School District is an important reminder to look closely at the accommodations, modifications and services a student has previously received as a factor in determining eligibility for special education. Eligibility teams should understand which general education interventions are available to all students and which may actually amount to specialized instruction tailored to a specific student.

If you have any questions about this decision or special education eligibility in general, please contact the authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah Garcia

Partner

Jennifer Baldassari

Associate

 

©2016 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.