Partial Pay for Baby Bonding Leave Extended to Classified and Community College Employees

October 2016
Number 84

In 2015, Governor Jerry Brown signed Assembly Bill (AB) 375 (see 2015 Client News Brief No. 56), which allowed certificated school district employees to use differential leave for up to 12 weeks when they take baby bonding leave under the California Family Rights Act (CFRA), effective January 1, 2016.

On September 30, 2016, the Governor signed AB 2393, which extends the rights afforded under AB 375 to classified employees of school and community college districts and community college academic positions. This bill also clarifies baby bonding leave rights for certificated employees provided under AB 375. The law becomes effective on January 1, 2017.

AB 2393 clarifies that the leave rules apply to districts with differential leave or 100-day extended sick leave. Baby bonding leave under both AB 375 and AB 2393 is subject to the following rules:

  • The employee must exhaust all available sick leave, including accumulated sick leave, before receiving partial pay for the remaining portion of the 12-workweek period.
  • Baby bonding leave, referred to in AB 2393 as “parental leave,” is leave for the birth of a child of the employee or placement of a child with an employee in connection with the adoption or foster care of the child by the employee.
  • Employees may not receive more than one 12-workweek period of partial pay parental leave within a 12-month period.
  • Partial pay parental leave runs concurrent with the 12 weeks of baby bonding leave provided under CFRA.

AB 2393 makes several significant changes to leave as provided by AB 375. First, it eliminates one of the requirements to be eligible for leave under CFRA. In order to be eligible for leave under CFRA, the employee must have been employed for 12 months and must have worked 1,250 hours within the previous 12-month period. AB 2393 eliminates the requirement that the employee work 1,250 hours within the last 12-month period in order to be eligible for partial pay parental leave. This means there may be situations where an employee is not qualified for baby bonding under CFRA leave because the employee has not worked 1,250 hours within the last 12 months, but will qualify for up to 12 weeks of partial pay parental leave under AB 2393.

AB 2393 also eliminates the exception under AB 375 that authorized employers with collective bargaining agreement language that conflicts with AB 375 to delay implementation of the partial pay for bonding. This means school districts that were previously exempt from the requirements of AB 375 because of their collective bargaining agreement must provide employees with parental leave in accordance with AB 2393 effective January 1, 2017.

There are still unanswered questions regarding implementation, so if you have any questions about AB 2393 or need assistance interpreting the leave rights of your employees, 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:

Dulcinea Grantham

Partner and Co-Chair Labor & Employment Group

Desiree Serrano

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.

New Claims Resolution Process Will Apply to All Public Contracts Effective January 1, 2017

October 2016
Number 83

Effective January 1, 2017, a new claims resolution process will be required for all public works projects. On September 29, 2016, Governor Jerry Brown approved Assembly Bill (AB) 626, which adds section 9204 to the Public Contract Code. The law is aimed at assisting contractors in enforcing claims against public agencies. Currently, the law requires public agencies to follow a certain claims process for claims that are $375,000 or less. Section 9204 will apply to all claims related to any public works contract entered into on or after January 1, 2017. A “claim” is defined in the statute to mean a “separate demand by a contractor” for one or more of the following: (1) a time extension, including for relief from damages or penalties for delay asserted by a public entity under a contract for a public works project; (2) payment by the public entity of money or damages arising from work done by, or on behalf of, the contractor pursuant to the contract for the public works project and payment for which is not otherwise expressly provided or to which the claimant is not otherwise entitled; or (3) payment of an amount that is disputed by the public entity. (Pub. Contract Code, § 9204(c)(1).) Upon receipt of any such claim, the public entity will be required to comply with the following process:

  1. Review and Provide a Written Response. The public entity must conduct a reasonable review of the claim and provide a written response within 45 days of receiving it, identifying the portion of the claim that is disputed and the portion that is undisputed. The 45-day timeline can be extended by mutual agreement of the public entity and the claimant. If the public entity needs approval from its governing body before it can provide the written response, and the governing body does not meet within the 45-day period or a mutually agreed-upon extension of that period, the public entity will have up to three days following the next public meeting of the governing body after the period expires to provide the written statement to the claimant. If the public entity fails to respond within the prescribed timelines, the entity will be deemed to have denied the claim in its entirety.
  2. Pay Any Undisputed Amount. Within 60 days after receipt of the claim, the public entity is required to process and make payment on any undisputed amount.
  3. Meet and Confer with the Contractor on Any Disputed Amount, if Demanded. If the claimant disputes the public entity’s written response, or if the public entity fails to respond to the claim within the prescribed time frame, the claimant may demand in writing an informal conference to meet and confer for settlement of the issues in dispute. Upon receipt of such a demand, the public entity is required to schedule a meet and confer conference within 30 days.
  4. Provide a Second Written Response Following Informal Meet and Confer Conference. Within 10 business days after the meet and confer conference is concluded, if the claim or any portion of it remains in dispute, the public entity is required to provide the claimant with another written statement identifying the portion of the claim that remains in dispute and the portion that is undisputed. Any undisputed amount must be processed and paid within 60 days after the public entity issues the written statement.
  5. Submit Any Remaining Dispute to Mediation. If any amount remains in dispute after the completion of the meet and confer conference, as identified by the contractor in writing, the parties must submit the dispute to nonbinding mediation in which the public entity and the claimant will share the associated costs equally. Within 10 business days after the disputed portion of the claim has been identified in writing, the public entity and the claimant must agree to a mediator. If they are unable to do so, each party must select a mediator and those mediators will select a qualified neutral third party to mediate regarding the disputed portion of the claim. Each party is responsible for the fees and costs charged by its respective mediator in connection with selecting the neutral mediator. If mediation is unsuccessful, the portion of the claim remaining in dispute will be subject to any applicable procedures outside of Public Contract Code section 9204.

Effective January 1, 2017, the text of section 9204, or a summary thereof, must be set forth in the plans and specifications for any public works project that may give rise to a claim defined by the section. Public agencies will need to update their construction contracts’ claim procedures moving forward to ensure compliance. Also, a waiver of the rights granted to contractors under section 9204 will be void and contrary to public policy, provided that the parties may agree, in writing, to waive such rights once a claim is actually received by the public entity. Notwithstanding the new law, public entities will still be able to prescribe reasonable change order, claim and dispute resolution procedures and requirements in addition to the provisions of section 9204, as long as such contractual provisions do not conflict with or impair section 9204’s time frames and procedures.

Under existing law, sections 20104, et seq., of the Public Contract Code also prescribe a specific process for resolution of claims that are $375,000 or less. Section 9204 applies “notwithstanding” the provisions of section 20104, but it does not replace the existing requirements. Thus, claims under $375,000 that are not resolved pursuant to the requirements of section 9204 may also be subject to the requirements of section 20104, which could mean a further meet and confer process, mediation and non-binding arbitration before any litigation.

If you have any questions regarding AB 626 or public project 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

Kelly Rem

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.

Governor Signs New Law Requiring Schools to Adopt Pupil Suicide Prevention Policies

October 2016
Number 82

Governor Jerry Brown has signed Assembly Bill (AB) 2246, which requires all county offices of education, school districts, state special schools and charter schools serving pupils in grades 7-12 to adopt pupil suicide prevention policies. Signed into law during National Suicide Prevention Awareness Month, AB 2246 represents an effort to address rising youth suicide rates.

AB 2246 contains a number of requirements that local educational agencies (LEAs) must follow in developing their pupil suicide prevention policies. Similar to the adoption of plans related to school funding, AB 2246 requires input from a number of individuals in the formulation of pupil suicide prevention policies, including school and community stakeholders, school-employed mental health professionals and suicide prevention experts. Policies will be required to address procedures related to suicide prevention, intervention and postvention (support procedures for family, friends and peers of a suicide victim). Policies must also specifically address the needs of identified “high-risk” groups, which include youth bereaved by suicide; youth with disabilities, mental illness or substance abuse issues; homeless and foster youth; and lesbian, gay, bisexual, transgender or questioning youth.

AB 2246 also requires that policies address training on suicide awareness and prevention to be provided to teachers of pupils in grades 7-12. While AB 2246 does not explicitly require that teachers be trained in such areas, the mandatory inclusion of training within the pupil suicide prevention policies heavily insinuates that they should. Moreover, AB 2246 states that training materials approved by an LEA must include how to identify appropriate mental health services, both at the school site and within the larger community, and when and how to refer youths and their families to those services.

In order to support efforts to adopt pupil suicide prevention policies, AB 2246 requires that the California Department of Education (CDE) develop and maintain a model policy to “serve as a guide” for LEAs. CDE already provides a number of resources to assist LEAs in addressing youth suicide, and maintains access to a wide array of resources on its website. Despite the urgency with which AB 2246 calls for LEAs to take action, the new law does not set a deadline for CDE to publish a model policy. In the meantime, the California School Boards Association has developed its own model policy (Board Policy/Administrative Regulation 5141.52) which may be used as a starting point, though it should be cautioned that this policy, in its current form, may not meet all the requirements of AB 2246.

The new law calls for LEAs to adopt their pupil suicide prevention policies prior to the commencement of the 2017-2018 school year (i.e. prior to July 1, 2017). LEAs should plan to adopt policies no later than their last regularly-scheduled governing board meeting of the 2016-2017 school year, as AB 2246 specifically requires that adoption occur at a regular (rather than a special) meeting. This timeline is further impacted by the requirement that LEAs gather input from various stakeholders and experts who must be part of the policy development process. Based on these relatively short timelines, LEAs are encouraged to begin the process of drafting or revising existing pupil suicide prevention policies as soon as possible.

For more information on AB 2246 or adopting compliant policies, 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:

Paul McGlocklin

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.

Federal Appeals Court Affirms Constitutionality of Student Conduct Code, but Allows Free Speech Retaliation Claim against University to Proceed

October 2016
Number 81

The Ninth Circuit Court of Appeals denied a university’s request to dismiss a student’s lawsuit alleging retaliation for protected speech under the First Amendment.

In O’Brien v. Welty (9th Cir. 2016) 818 F.3d 920, a student intruded into the university offices of two faculty members, questioned the faculty members about a poem published in the student newspaper and proceeded to video record the interactions. The university disciplined the student under its student conduct code on the ground the student’s conduct constituted prohibited intimidation and harassment.

The student sued, alleging the discipline was unlawful retaliation for his protected speech in violation of the free speech clause of the First Amendment. The university moved to dismiss the complaint, arguing that the student’s allegations, even if true, did not state a claim under the First Amendment. The trial court rejected the student’s claim that the terms “intimidation” and “harassment,” as used in the code of conduct, were unconstitutionally overbroad. The trial court then dismissed the complaint, agreeing with the university that the student failed to allege enough facts to establish a free speech retaliation claim.

The Court of Appeals agreed that the code of conduct was not unconstitutionally overbroad, but disagreed that the student failed to allege sufficient facts to state a claim. The court observed that a plaintiff must establish three elements to state a First Amendment retaliation claim: (1) the plaintiff was engaged in a constitutionally protected activity; (2) the defendant’s actions would “chill a person of ordinary firmness from continuing to engage in the protected activity”; and (3) the protected activity was a “substantial or motivating factor in the defendant’s conduct.”

The court explained that action taken under the code of conduct could support a claim under this standard if “motivated by retaliation for having engaged in activity protected under the First Amendment.” In this case, the court found that the student did allege sufficient facts that, if true, could reasonably support a conclusion that university officials not only disagreed with the student’s expressed political views but also sought to “punish and muzzle him in retaliation for his expression of those views.”

The court noted the following allegations in support of its conclusion:

  • An administrator “requested that students and other faculty members gather information and complaints to use against” the student.
  • A student provided complaints and other documents to the administrator pursuant to the request.
  • Employees sent emails to university administrators demanding they do something about the student and his website, which criticized the student body president and the university.
  • Faculty members said that the student was “stalking” the hallway, and that they should post “wanted” signs with the student’s face to mock him and serve as a warning to other students and faculty.
  • The university and several other defendants “did not facilitate – and indeed impeded – [the student] in his attempt to document and explain his side of the story” during the student’s disciplinary hearing.
  • As part of the discipline imposed for the student’s conduct, an administrator imposed an additional punishment of probation that was not part of the university panel’s recommendation, which had the effect of limiting the student’s political activity, which included serving as president of the political advocacy club he founded and as a member of the university’s student government.
  • After the discipline was imposed, university officials deleted posts made by the student on “university-managed Facebook pages, permanently blocking him from posting about certain issues, while at the same time allowing posts expressing left-leaning viewpoints to remain.”

The case will now return to the trial court for further proceedings.

Notably, the Court of Appeals also emphasized that institutions can avoid liability if they can show that they would have taken the same disciplinary actions in the absence of the student’s protected activity. Further, the court cautioned “against overreading our opinion,” explaining that the “First Amendment does not give a free pass to students who violate university rules simply because they can plausibly show that faculty or administrators disapprove of their political views,” even where a student’s “misconduct is preceded by or accompanied by the expression of opinions with which faculty members or administrators strongly disagree.”

The impact codes of conduct have on student expression on campus is a challenge facing higher education institutions across the country. While O’Brien reaffirms students’ right to appropriate expression free from retaliation, it also reaffirms an institution’s right to regulate unprotected, harmful speech and activity. Institutional officials must, however, be careful to not act based on a particular viewpoint and to sufficiently document the viewpoint-neutral rationale for an action.

If your institution has any questions regarding the impact of the O’Brien opinion or the First Amendment 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:

Trevin Sims

Partner

Steve Ngo

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.

Court Rules School Districts not required to Use Standardized Test Scores in Teacher Evaluations

October 2016
Number 80

A California trial court has ruled that the Stull Act does not require school districts to use the results of standardized test scores in teacher evaluations. (Doe v. Antioch Unified School District (Super.Ct. Contra Costa County, 2016, No. MSN15-1127.)

The court examined the text of Education Code section 44662(b)(1), which states that a school district “shall evaluate and assess certificated employee performance as it reasonably relates to [t]he progress of pupils toward the standards established pursuant to subdivision (a) and, if applicable, the state adopted academic content standards as measured by state adopted criterion referenced assessments.” Because the court found the statute was ambiguous, it analyzed the legislative history of section 44662 and other related teacher evaluation and student testing statutes.

The court noted that Education Code section 44660 requires the use of “objective evaluation and assessment guidelines” in teacher evaluations. Education Code section 44661.5 provides that a district may utilize the California Standards for the Teaching Profession (CSTP) when developing “objective evaluation and assessment guidelines.” The court noted that Standard 5 of the CSTP addresses “assessing student learning” and focuses on how teachers use tests to guide instruction. Standard 5 does not require evaluation of teachers based on how their students score on standardized tests, nor does it require the use of standardized test results in teacher evaluations.

The court next analyzed Assembly Bill (AB) 484, which was enacted in 2013 and authorizes the use of the CAASP test to assess progress on Common Core standards. The court noted that nothing in AB 484 requires the use of test scores from CAASP in teacher evaluations. The court also looked at teacher evaluation statues from Florida and Michigan, which specifically require a percentage of a teacher’s evaluation to be based on “student growth and assessment data.” The court reasoned that if the California Legislature wanted to specifically require the use of standardized test scores as part of the evaluation process, it could have done so by writing section 44662 more clearly.

For these reasons, the court ruled that section 44662 does not require school districts to use standardized test results in teacher evaluations. The court found additional grounds for its ruling based on statistical and practical problems with standardized tests. First, the court noted that because California schools have recently begun using the CAASP instead of the STAR test, there is an inadequate baseline for measuring teacher performance. Second, the court found that there is no reliable statistical “regression” tool available to disaggregate teacher performance from other sociodemographic factors, such as gender, race, English language learner status or special education status. Finally, the court noted that teacher evaluations are to be completed no later than 30 days prior to the end of the school year, which means that most evaluations are completed by July but the test results are not available until August, thereby creating a timing problem for use of test results in evaluations.

Even though the court in Antioch ruled that section 44662 does not require the use of standardized test scores in teacher evaluations, the issue continues to be hot topic in education. On September 30, 2016, Governor Jerry Brown vetoed AB 2826, which would have allowed the use of standardized tests; school district, school or department-developed tests; curriculum and end-of-course tests; and other tests as a means to measure the “progress of pupils” when evaluating teacher performance under Education Code section 44662.

Although section 44662 does not require the use of standardized test scores in teacher evaluations, the court did not find that consideration of student test scores on performance on such tests is prohibited. However, because teacher evaluations are subject to collective bargaining, the use of test scores in teacher evaluations must be negotiated.

Finally, districts should keep in mind that the Antioch case is a Contra Costa County Superior Court decision, not an appellate court decision. Thus, while the reasoning and analysis provide guidance in interpreting section 44662, this decision is only binding on the particular parties in this case.

If you have any questions about the decision or teacher evaluations 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:

Michael Smith

Partner

Stephen Mendyk

Of 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.

California Court Rules that Charter Schools Generally Cannot Locate Outside of Their Authorizing School District’s Boundaries

October 2016
Number 79

In a case watched closely by the charter school community – including school districts, county offices of education and charter operators – California’s Third District Court of Appeal has issued an opinion which holds that the geographic and site limitations of the Charter Schools Act (Ed. Code, § 47600 et seq.) are applicable to all charter schools, including “nonclassroom-based” programs. (Anderson Union High School District v. Shasta Secondary Home School (Oct. 17, 2016) ___ Cal.App.4th ___.)

Represented by Lozano Smith, Anderson Union High School District (AUHSD) brought suit against Shasta Secondary Home School (SSHS) to stop the improper establishment of a charter facility within AHUSD’s boundaries. SSHS was authorized by a neighboring school district and did not seek the consent of its authorizer or AHUSD before locating a “resource center” within AUHSD’s boundaries.

At issue in this case are two statutes: Education Code section 47605, which requires a charter school generally to operate within the geographic boundaries of its authorizing school district; and Education Code section 47605.1, which provides a very limited exception for charter schools to locate certain satellite facilities to support independent study in adjacent counties. In reversing the trial court, the Court of Appeal thoughtfully evaluated the legislative history of the Charter Schools Act and multiple rules of statutory construction, concluding that the relevant statutes indeed say what they mean: All charter schools must comply with the Charter Schools Act, including its geographic restrictions for the operation of charter schools. As such, the plain language of the Charter Schools Act limits in-county resource centers located outside of the chartering district.

Behind this technical legal issue is a cottage industry of charter schools operating nonclassroom-based programs, availing themselves of a perceived loophole in the Charter Schools Act that would allow them to locate at will, without the consent of their authorizer or the school district in which they are encroaching. The court’s opinion dispels of the notion that such a loophole exists. Importantly, nonclassroom-based programs are not limited to independent study or homeschooling, in the traditional sense. Rather, these programs often operate seat-based instruction up to four days per week and are funded at the same level as traditional public schools. Certain charter operators around the state have increasingly sought to utilize this nonclassroom-based model, and to receive authorization from one school district and then locate in a different school district. Flowing from this practice are a host of unintended consequences, including challenges for the authorizer providing oversight to the charter schools and elimination of local school district sovereignty over the educational programs provided in its community. The Court of Appeal’s opinion is poised to end the abuses of charter schools utilizing this practice. The opinion benefits not only school districts in general, but also the vast majority of charter schools that operate in compliance with the Charter Schools Act and in cooperation with their authorizers and neighboring school districts.

The Anderson Union High School District opinion has been certified for publication and now constitutes precedent on this issue, unless or until the California Supreme Court grants review of the case, which could impact the precedential value of the opinion. SSHS, which has been supported through amici curiae California Charter Schools Association and others at the Court of Appeal level, now has relatively short deadlines to seek reconsideration of the opinion by the Court of Appeal and to otherwise seek review from the California Supreme Court.

AHUSD was represented by Lozano Smith partner and Litigation Practice Group Co-Chair Sloan Simmons, partner and Charter School Practice Group member Megan Macy, and senior counsel Anne Collins, who is a member of both the firm’s Charter School and Litigation practice groups. Lozano Smith Charter School Practice Group co-chairs and partners Edward Sklar and Devon Lincoln have regularly advised school districts on the exact issue resolved by the Court of Appeal in this case over the past several years.

For more information on the Anderson Union High School District opinion, the Charter Schools Act, and both administrative or litigation considerations related to both, 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:

Megan Macy

Partner

Sloan Simmons

Partner

Devon Lincoln

Partner

Edward Sklar

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.

Court Denies Preliminary Injunction Barring Enforcement of Senate Bill 277

October 2016
Number 78

A federal district court in Southern California recently declined to issue a preliminary injunction barring enforcement of Senate Bill (SB) 277. As we previously reported, SB 277, which went into effect January 1, 2016, eliminated the “personal belief” exemption (PBE) from vaccine requirements for schoolchildren. (See 2015 Client News Brief No. 36.)

In July of 2016, several plaintiffs filed a request for a preliminary injunction, alleging that SB 277 and its elimination of the PBE violated their rights to free exercise, equal protection, due process and education, as well as the Individuals with Disabilities in Education Act and section 504 of the Rehabilitation Act of 1973 and the Americans with Disabilities Act. The plaintiffs in the case, Whitlow v. California (S.D. Cal. July 25, 2016, No. 16-cv-1715 DMS), included parents, nonprofit organizations and students, including students with Individualized Education Plans (IEPs).

While the court seemed sympathetic to the plaintiffs’ plight, noting that the PBE had been in existence for decades and that the Legislature’s decision to eliminate it raised principled and spirited religious and conscientious objections by “genuinely caring parents and concerned citizens,” the judges said that the “wisdom of the Legislature’s decision is not for this court to decide.” In its decision, the court examined each alleged basis for the preliminary injunction and determined that the likelihood of plaintiffs prevailing on the merits of any of their claims was unlikely. A showing of a likelihood of prevailing on the merits is required in order for a court to issue a preliminary injunction.

A large part of the court’s opinion focused on the state’s ability to ensure the safety of its constituents, which it may do by passing laws requiring that individuals be immunized. The court noted that such laws have been upheld by courts throughout the United States for more than 100 years, and, citing Zucht v. King (1922) 260 U.S. 174, 176, that it was “long ago settled that it is within the police power of a state to provide for compulsory vaccination.” The court also noted that the issues raised in the complaint were addressed with the Legislature before SB 277 was enacted, and that the Legislature decided to proceed with the law despite those objections.

Three classes of students are exempt from the requirements of SB 277: students with medical reasons to avoid vaccinations, those in home-based private schools or on an independent study program without a classroom-based component and students who have an IEP. While the court appropriately noted that students with IEPs are exempt from immunization requirements, it did not clarify the vague language found under Health and Safety Code section 120335, subdivision (h), regarding whether the “exemption” for students with IEPs requires districts to provide services, placement or both to students who have IEPs regardless of immunization status. Rather, the court simply noted that students with IEPs have a right to access special education and related services.

Since the preliminary injunction was not issued and the plaintiffs voluntarily withdrew their complaint, school districts should continue to follow SB 277. Further, school districts should carefully examine what services and/or placement they will provide to students with IEPs who are not immunized, and who are not exempt from the requirements of SB 277. We strongly urge school districts to consult with legal counsel when dealing with these difficult situations.

For more information on the court’s decision or on student vaccination requirements 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:

Marcy Gutierrez

Senior Counsel

Aimee Perry

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.