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.

Governor Signs Three Student Health Emergency Preparedness and Response Bills

October 2016
Number 77

Governor Jerry Brown recently signed three Assembly bills related to student health emergency preparedness and response in school districts and charter schools.

Assembly Bill (AB) 1719 requires any school district or charter school whose graduation requirements include a health education course to include compression-only cardiopulmonary resuscitation (CPR) instruction. AB 1748 authorizes school districts, county offices of education and charter schools to obtain FDA-approved opioid antagonists to administer in the event of an opioid overdose. AB 1386 amends Education Code section 49414 to redefine “epinephrine auto-injector.”

AB 1719: Compression-Only CPR Instruction Required in Certain High Schools

Recent studies have shown disproportionately low CPR use and training in low-income communities, rural communities and communities with higher proportions of African-American and Latino residents. AB 1719 aims to increase CPR instruction in certain high schools throughout the state.

Beginning in the 2018-2019 school year, school district governing boards and charter schools that require students to complete a course in health education to graduate from high school must provide instruction in performing compression-only CPR. Compression-only CPR eliminates mouth-to-mouth resuscitation from traditional CPR treatment. According to the American Heart Association, the compression-only method has been shown to be as effective as traditional CPR.

Instruction must be based on nationally recognized guidelines, such as those created by the American Heart Association or the American Red Cross, and must include hands-on training. Schools are encouraged, but not required, to instruct students on the use of an automated external defibrillator. Subject to certain limitations, schools and instructors will not be civilly liable for injuries caused by students using their training.

The bill also requires the Department of Education to release guidance on implementation before the 2017-2018 school year, including who may provide the training. School boards may adopt their own implementation policies.

AB 1748: Opioid Antagonists Permitted in Schools

The disturbing increase in opioid addiction and overdoses in the United States is well documented. According to the Centers for Disease Control and Prevention, overdoses from prescription pain relievers and heroin in the United States accounted for nearly 30,000 deaths in 2014. AB 1748 adds section 49414.3 to the Education Code and provides a means for schools to respond to a potential opioid overdose.

Naloxone hydrochloride and other opioid antagonists are used to treat opioid overdoses. AB 1748 allows school districts, county offices of education and charter schools to make opioid antagonists available for school nurses and trained employee volunteers to administer in emergency situations. School nurses are permitted to administer opioid antagonists in emergency situations when a physician is unavailable. Trained volunteers may do so when a nurse is unavailable. A volunteer may administer an opioid antagonist only by nasal spray or auto-injector, but may do so in whichever of those forms the volunteer is most comfortable with.

Pharmacies may furnish opioid antagonists to educational institutions for school use if a physician prescribes them. If a school does not wish to store opioid antagonists or train employees to administer them, it must evaluate the emergency medical response time to the school and determine whether initiating emergency medical services is an acceptable alternative.

At least once every five years, the Superintendent of Public Instruction must review minimum training standards for administration of opioid antagonists and produce written training materials. The Department of Education must include on its website a clearinghouse for best practices in training.

AB 1748 also:

  • Requires schools electing to stock opioid antagonists to provide training to any volunteer at no cost to the volunteer and during the volunteer’s working hours.
  • Permits an employee volunteer to rescind his or her offer to volunteer at any time. Educational institutions may not provide or deny a benefit to an individual based on an offer to volunteer, or retaliate against a volunteer for rescinding his or her offer.
  • Requires schools electing to stock opioid antagonists to distribute an annual notice to all staff regarding volunteering for training to administer opioid antagonists and a volunteer’s right to rescind his or her offer to volunteer.
  • Requires schools electing to stock opioid antagonists to maintain records regarding acquisition and disposition of opioid antagonists for three years and to retain for reference written training materials prepared by the Superintendent of Public Instruction.
  • Designates a qualified supervisor of health or an administrator as the party permitted to obtain a prescription for opioid antagonists for each school and requires that individual to stock opioid antagonists and restock them if used or expired.
  • Permits a public school to accept gifts, grants, or donations from any source – including a drug manufacturer or wholesaler – to carry out the provisions of the bill.

Subject to certain limitations, trained employee volunteers will not be civilly or criminally liable or subject to professional review for injuries caused while administering opioid antagonists in emergency situations. An educational institution must ensure that it provides volunteers defense and indemnification for any civil liability. This assurance must be in writing, provided to the volunteer and retained in the volunteer’s personnel file.
AB 1386: Epinephrine Auto-Injectors Required in Schools
As of January 2015, Education Code section 49414 required schools to store and maintain epinephrine auto-injectors (EAIs). EAIs deliver epinephrine into the body to treat anaphylaxis, a potentially life-threatening allergic reaction typically caused by insect stings, food allergies, drug reactions and exercise. AB 1386 modifies the definition of “epinephrine auto-injector” to align with similar definitions in related student health bills. The modified definition should not have a major, direct impact on educational institutions. Most notably, the bill makes EAIs available for other non-educational entities such as day care facilities, after school programs, summer and day camps, scout troops and local businesses.

The new opioid antagonist law bears many similarities to the existing EAI law; the former was in fact modeled after the latter. But the laws differ in some respects, including:

  • Opioid antagonists are not mandatory: AB 1386 requires schools to stock EAIs, but AB 1748 does not require schools to stock opioid antagonists if they determine that initiating emergency medical services is an acceptable alternative to stocking opioid antagonists.
  • Annual notice requirement: AB 1748 requires more extensive annual notices to employees than those required by AB 1386.
  • Volunteer provisions: Under AB 1748, employee volunteers are permitted to rescind their offer to volunteer, may not be retaliated against for doing so, and may choose an opioid antagonist administration method that they are comfortable with. AB 1386 provides no such employee protections.

If you have any questions regarding these bills or any other issues regarding student health emergency preparedness, 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:

Steven Nunes

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.

Governor Signs Bill Requiring Child Safety Alert Systems on School Buses

October 2016
Number 76

Governor Jerry Brown recently signed into law Senate Bill (SB) 1072, a bill modifying the Education Code and Vehicle Code to require additional safety measures for students being transported on school buses. Also called the “Paul Lee School Bus Safety Law,” the bill responds to multiple reports of California schoolchildren being left unattended on school buses for hours, often in dangerous conditions. In 2015, a student, Paul Lee, died after being left unattended on a school bus during a heat wave. The bill, effective January 1, 2017, will provide multiple new safeguards intended to prevent students traveling on school buses from being left unattended.

Child Safety Alert Systems

SB 1072 significantly modifies existing law, requiring school buses, youth buses and child care motor vehicles to be equipped, by the 2018-2019 school year, with child safety alert systems. A child safety alert system, as defined by SB 1072, is a device located at the interior rear of a vehicle that a driver must manually contact or scan before exiting the vehicle, thereby prompting drivers to inspect the vehicle for students. These devices are currently made by multiple manufacturers and have reportedly already been deployed on some buses in California school districts. SB 1072 also requires the Department of Motor Vehicles (DMV) to adopt regulations governing the specifications, installation and use of child safety alert systems on or before January 1, 2018. Once available, these regulations should provide guidance to school districts regarding the next steps in the child safety alert system implementation process.

Procedures to Ensure Students Not Left Unattended

Currently, school officials must institute transportation safety plans which contain procedures for school personnel to follow to ensure the safe transport of students. SB 1072 mandates that districts’ transportation safety plans include procedures which will ensure that a student is not left unattended on a school bus, school pupil activity bus or youth bus, and the designation of an adult chaperone, other than the driver, to accompany students on a school activity bus. Furthermore, school district governing boards must require that any contract for transportation of students to and from activities include the condition that a pupil shall not be left unattended on a school bus.

Notification of Driver Misbehavior

SB 1072 also requires public officials to report certain driver misbehavior to the DMV. School officials must report school bus driver misbehavior when the board, or the driver’s employer if transportation services are contracted out, has done the following: 1) ordered and upheld disciplinary action against a driver of a school bus in connection with leaving a student unattended onboard a school bus, and 2) made a finding that the driver’s actions constituted gross negligence. Gross negligence, as defined by the law, means “the want of even scant care or an extreme departure from the ordinary standard of conduct.” If the above situation occurs, officials must make their report to the DMV within five days of the discipline and finding of gross negligence.

Enhanced Requirements for Driver Certificates

In addition to a driver’s license, school bus drivers must also obtain a certificate to operate a school bus. Pursuant to SB 1072, in order to receive their certificates, drivers must receive at least 10 hours of original or renewal instruction each year. Classroom instruction must cover inspection procedures to ensure no student is left unattended on a school bus, in addition to topics such as emergency procedures, passenger loading and unloading and accident prevention. Currently, under the Vehicle Code, the DMV must refuse to issue or revoke a certificate if the driver has been convicted of certain felonies, a sex offense or has otherwise failed to meet training and testing requirements for the certificate. SB 1072 authorizes the DMV to refuse to issue or revoke a certificate if the driver has been reported to the DMV for leaving a student unattended on a school bus, giving teeth to the reporting requirements discussed above.

If you have any questions about SB 1072 or any other issues related to school bus and transportation safety, 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:

Anne Collins

Senior Counsel

Ellen Denham

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.

United States Supreme Court to Consider How Much Educational Benefit IDEA Requires

October 2016
Number 75

The United States Supreme Court has decided to take up an issue that has long divided federal courts: How much educational benefit must Individualized Education Programs (IEPs) provide to special needs students?

On September 29, the high court granted review of Endrew F. v. Douglas County School District RE-1 (No. 15-827), a case decided by the 10th Circuit Court of Appeals in Denver on August 25, 2015. In that case, the court affirmed a lower court holding that the district did not deny the plaintiff a free and appropriate public education (FAPE) because the IEP it drafted for him offered “some educational benefit.” The plaintiff argued that the law requires IEPs to provide a “meaningful educational benefit,” a standard that has been articulated by other federal circuits.

The high court’s decision could have a major impact on the way schools draft IEPs for special needs students and on the level – and cost – of services that must be provided in order to ensure students have been provided a FAPE.

For more than a decade, the courts generally applied the standard articulated in another Supreme Court case, Board of Education of the Hendrick Hudson School District v. Rowley (1982) 458 U.S. 176. In that case, the high court held that federal law required IEPs to provide “some educational benefit” to students, adding that states are required to provide a “basic floor of opportunity” to disabled students, not a “potential-maximizing education.” But some federal circuits have interpreted amendments to the Individuals with Disabilities Education Act to mean that a higher standard – that IEPs should provide a “meaningful educational benefit” – should apply, leading to a split in authority among federal
circuit courts.

In 2009, the Ninth Circuit Court of Appeals made clear that it would adhere to the Rowley standard in J.L. v. Mercer Island School District (9th Cir. 2010) 592 F.3d 938, calling it the “proper standard to determine whether a disabled child has received a free appropriate public education.” In a footnote, the court explained that its reading of the Rowley decision led the judges to the conclusion that the phrases “educational benefit,” “some educational benefit” and “meaningful educational benefit” all applied to the same standard, adding that school districts must confer at least some educational benefit on disabled students in order to make such access meaningful.

Lozano Smith will be watching this case closely and will report on any additional developments and the Supreme Court’s decision as soon as they happen.

For more information on the Endrew F. decision, educational benefit standards or special education law 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

 

©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 Vetoes Charter School Transparency Bill

October 2016
Number 74

On September 30, 2016, Governor Jerry Brown vetoed Assembly Bill (AB) 709, which would have expressly required California charter schools to comply with the same transparency and conflict of interest requirements as traditional public school districts.

With recent reports of mismanagement by charter school governing boards across the state, there is constant discussion as to which conflict of interest and transparency laws apply to charter schools. AB 709 specifically aimed to encourage transparency and fair dealing in the governance of charter schools, and was substantially similar to legislation that Governor Brown vetoed in 2014, AB 913. AB 709 would have explicitly subjected charter schools to the requirements of the Ralph M. Brown Act (Gov. Code, §§ 54950-54963), the California Public Records Act (Gov. Code, § 6250 et seq.), Government Code section 1090, and the Political Reform Act (Gov. Code, §§ 87100, 87103).

In his veto message, Governor Brown repeated the message he wrote when he vetoed AB 913, noting that that while he supports transparency, the bill “goes further than simply addressing issues of potential conflicts of interest and goes too far in prescribing how these boards must operate.”

For more information on the state’s public record, open meeting and anti-corruption laws and their implications for charter schools and charter authorizers, 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:

Edward Sklar

Partner

Ryan Tung

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.

Discipline for Cyber Bullying Gets an Upgrade

October 2016
Number 73

On September 21, 2016, Governor Jerry Brown signed into law two new bills that will become effective January 1, 2017, amending sections 234.2 and 48900 of the Education Code relating to cyber bullying.

The new laws expressly include video as an electronic means by which bullying can occur. Students can now also be suspended or expelled if “cyber sexual bullying” is committed, and local education agencies are encouraged to inform students that information and resources about cyber sexual bullying are available on the California Department of Education’s website.

Assembly Bill (AB) 2212: “Video” Included in Definition of “Bullying via Electronic Act”

AB 2212 amends section 48900 of the Education Code to add “video” to the definition of bullying via an “electronic act.” (Ed. Code, § 48900(r)(2)(A)(i).) Under existing law, the definition of “electronic act” only includes the transmission of a “message, text or image.” Arguably, under the existing definition, schools are already permitted to suspend or recommend expulsion of a student who bullies via transmission of a video because a video is an “image.” But the amendment updates the law so there is no gray area regarding whether a student can be suspended or expelled for bullying by transmitting a video.

Assembly Bill (AB) 2536: Cyber Sexual Bullying is now a Suspendable/Expellable Offense and California Department of Education Must Include Cyber Sexual Bullying Information and Resources on its Website

AB 2536 amends Education Code sections 48900 and 234.2. Specifically, section 48900 will be amended to include “cyber sexual bullying” as a form of bullying via electronic means.

“Cyber sexual bullying” is defined as:

  • the dissemination of, or the solicitation or incitement to disseminate;
  • a photograph or other visual recording [which shall include the depiction of a nude, semi-nude or sexually explicit photograph or other visual recording or a minor where the minor is identifiable from the same or other electronic act];
  • by a pupil to another pupil or to school personnel;
  • by means of an electronic act [as defined in this section];
  • that has or can be reasonably predicted to have;
  • one or more of the effects [of bullying as defined in 48900].

“Cyber sexual bullying” does not include “a depiction, portrayal, or image that has any serious literary, artistic, educational, political, or scientific value or that involves athletic events or school-sanctioned activities.”

In addition, AB 2536 amends Education Code section 234.2 to require the California Department of Education to include cyber sexual bullying information on its website; annually inform school districts where such information is posted; and encourage schools to notify students regarding the availability of information on the California Department of Education’s website.

For more information on cyber sexual bullying and student discipline or student discipline 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:

Colleen Villarreal

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.

U.S. Department of Education Issues Guidance on Implementing ESSA’s New Provisions Regarding Homeless Students

October 2016
Number 72

On July 27, 2016, the United States Department of Education (DOE) issued non-regulatory guidance to the nation’s schools addressing changes to the Elementary and Secondary Education Act of 1965 as implemented by the Every Student Succeeds Act of 2015 (ESSA) to the definition of homeless students under the McKinney-Vento Act (42 U.S.C. § 11301 et seq.). The guidance addresses state and local requirements for educating homeless youth, including local educational agencies’ (LEAs) obligations to identify and enroll homeless students without stigma or barriers, ensure that preschool-aged homeless children receive supportive services and provide transportation to a student’s school of origin until the end of the school year, even if the student later becomes permanently housed.

While the guidance is not legally binding and does not add any new legal requirements for LEAs not already included in ESSA, it constitutes a useful reference for LEAs, particularly for understanding how to provide services to homeless children as part of California’s requirement that LEAs develop Local Control and Accountability Plans. In addition to the guidance, the DOE issued a fact sheet summarizing the guidance and a “Dear Colleague Letter” outlining the requirement to provide homeless students notice of their rights and protections.

LEAs receiving Title I funds must begin implementing the new ESSA requirements by October 1, 2016. However, children awaiting foster care placement will no longer be included in the definition of “homeless children and youths” and will not be eligible for McKinney-Vento services starting on December 10, 2016. The DOE and U.S. Department of Health and Human Services recently issued guidance on ESSA’s changes regarding students in foster care to address this transition (see 2016 Client News Brief No. 43).

While ESSA leaves development of specific guidelines, policies and procedures to state and local agencies, the guidance does provide some direction. Specifically, it encourages LEAs to review and revise policies and practices that may act as a barrier to the identification, enrollment, attendance or success of homeless youth. This includes the recommendation that schools identify students living in “substandard housing” as homeless, such as if the child’s residence lacks water, electricity or heat.

Additionally, LEAs must educate homeless students in a school’s regular academic program. Schools must not segregate homeless students by placing them in a separate school, or in a separate program within the same school, based on their homeless status. LEAs shall not, absent emergency circumstances, educate a student at a shelter, even a domestic violence shelter. LEAs should instead coordinate with support service providers to protect the child’s identity, provide confidential transportation services and train staff to remain sensitive to the situation. The California Department of Education has resource tools available for schools to assist homeless students to enroll and participate in school.

The guidance also urges collaboration between local liaisons, federally qualified health centers and social services agencies that provide public benefits to identify homeless preschool-aged children. The local liaison should make significant efforts to enroll these children in preschool, even in districts without universal preschool. These efforts include asking preschools to advance homeless children on wait lists and finding preschools that keep spots open specifically for homeless children. Further, LEAs must provide homeless preschoolers transportation to preschool.

The guidance clarifies that all homeless youth must be provided transportation to and from their school of origin – the school they were enrolled in when they became homeless – to maintain educational stability if it has been determined that remaining in their school of origin is in their best interest. If such students no longer live in the area of their school of origin, the LEA where the student now lives and the LEA of origin must agree to share responsibility and costs for transportation. Transportation to and from the school of origin must be provided until the homeless student has found permanent housing. Once the homeless student finds permanent housing, LEAs must still provide this transportation for the remainder of the school year.

Additional ESSA provisions covered in the guidance include requirements for helping homeless students apply for financial aid, transfer credits from their previous school and find housing through U.S. Housing and Urban Development (HUD) homeless assistance programs. LEAs must also alter their dispute resolution policies over eligibility, school selection and enrollment matters, and must allow a homeless student to immediately enroll in their requested school pending any appeal.

If you have any questions about the implementation of ESSA’s new provisions relating to homeless youth, the DOE’s new guidance or California’s requirements for serving homeless youth, 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

Joshua Whiteside

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 Supreme Court Rules That Retirement is a Form of Quitting Under the Labor Code

October 2016
Number 71

The California Supreme Court has ruled that retirement is a form of quitting under the prompt payment protections in California’s Labor Code. (McLean v. State of California (2016) 1 Cal.5th 615.)

However, this ruling only applies to State of California and private employees, as Labor Code section 220 continues to exempt employees directly employed by any county, incorporated city, town or other municipal corporation.

In McLean, a retired California Department of Justice employee sued the state claiming she had not received her final wages within the time period set out in the Labor Code. Labor Code sections 202 and 203 require an employer to make prompt payment of all final wages to an employee who “quits” his or her employment, or else pay extended wages for up to 30 days. Labor Code section 202 states that an employee, not having a written contract for a definite period, is entitled to his or her final wages within 72 hours of quitting employment, or no later than the time of quitting if the employee provides the employer with 72-hour advance notice of his or her intention to quit.

The California Supreme Court was unpersuaded by the state’s argument that retirement does not qualify as “quitting” under Labor Code section 202. Instead, the court concluded that California’s laws regarding wages, hours and working conditions are to be liberally construed in favor of protecting employees. After looking at the plain language of the Labor Code’s prompt payment provisions, the high court unanimously affirmed the Court of Appeal decision in the former employee’s favor and held that retirement is a form of quitting, thus entitling the retired employee to statutory penalties of up to 30 days of wages at the same rate they earned prior to quitting.

Secondly, the court held that the retired employee’s lawsuit was not subject to dismissal simply because the employee filed it against the state rather than the agency she worked for. In coming to this conclusion, the court highlighted Labor Code section 220’s prompt payment exemption for “employees directly employed by any county, incorporated city, or town or other municipal corporation.” As supported by the plain language of Labor Code section 220 and subsequent California Courts of Appeal decisions (see Johnson v. Arvin-Edison Water Storage Dist. (2009) 174 Cal.App.4th 729; Division of Labor Law Enforcement v. El Camino Hosp. Dist. (1970) 8 Cal.App.3d Supp. 30) holding that water districts and hospital districts qualify as “other municipal corporation[s]” for purposes of Labor Code section 220, it is highly likely that public corporations and quasi-municipal corporations such as K-12 school districts, community college districts, county offices of education and other special districts qualify for the exemption.

If you have any questions about the decision or wage 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:

William Curley III

Senior Counsel

Iain MacMillan

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.

New Legislation Addresses Ethnic Studies Curriculum, Juvenile Court Pupil Graduation Requirements and Military Dependent Residency

October 2016
Number 70

Governor Jerry Brown recently signed into law three bills impacting school districts in the areas of pupil curriculum, graduation requirements for juvenile court school pupils and military dependent pupil residency requirements.

Assembly Bill (AB) 2016: High School Ethnic Studies Curriculum

Under AB 2016, the Instructional Quality Commission will develop a comprehensive model curriculum for ethnic studies instruction in high schools. The new law will provide all California high school students with increased opportunities to learn about the contributions of minorities in shaping the past, present and future of California and the United States.

A growing body of academic research shows the importance of culturally meaningful and relevant curriculum, particularly in supporting at-risk students. San Francisco Unified School District initiated a pilot ethnic studies program which showed wide-ranging positive effects for students including increased academic engagement, reduced dropout rates, increased performance on academic tests and increased student attendance rates.

Beginning with the 2020-2021 school year, all public school districts and charter schools offering grades 9-12 will be encouraged, though not required, to offer an ethnic studies course based on the model curriculum. Such a course must be offered as either an elective in the social sciences or English language arts and, if offered, must be made available in at least one year during a pupil’s enrollment in grades 9-12. The new curriculum will be developed by California university faculty and public school teachers experienced in ethnic studies. It is expected to be developed by December 31, 2019 and submitted to the State Board of Education for adoption by March 31, 2020.

Assembly Bill (AB) 2306: Juvenile Court Student Graduation Requirements

AB 2306 may enable some juvenile court students to earn their high school diplomas more quickly. The new law requires school districts to exempt former juvenile court school pupils from local graduation requirements that exceed those of the state, and to grant such students credit for those courses earned while in juvenile court school. AB 2306 defines “former juvenile court school pupil” as a student who transferred into a school district from a juvenile court school after their second year in high school.

Currently, students who transition to local high schools from juvenile court schools after completing their sentences can fall behind in graduation requirements as they work to meet local requirements. Under the new law, such students will be placed in the same category as foster care and homeless students who are presently exempt from local graduation requirements. In addition, AB 2306 requires a county office of education to issue a graduation diploma to a pupil who completes statewide coursework requirements for graduation while attending a juvenile court school, even if other local graduation requirements are not completed.

AB 2306 also provides juvenile court school students the right to file complaints of noncompliance with the local educational agency under the Uniform Complaint Procedures. Notably, students or their representatives may not request transfers solely from juvenile court school to a comprehensive school site to qualify a pupil for an exemption under AB 2306. The bill aims to provide juvenile court students with an opportunity to advance their education and contribute to the economy while lowering overall chances of recidivism.

Senate Bill (SB) 1455: Residency Requirements for Military Dependent Pupils

Existing law requires public school students to attend a school within the school district in which the pupil’s parent or legal guardian resides, or is physically employed for a minimum of 10 hours per week, unless otherwise exempted. SB 1455 now further provides that a student will meet residency requirements for school attendance if the student’s parent is either transferred or pending transfer to a military installation that is within the boundaries of the school district. The provisions of SB 1455 will apply to students of active-duty members of the United States uniformed services, National Guard and Reserve on active-duty orders.

In addition, the new law requires a school district to accept enrollment applications by electronic means, including into a specific school, program and/or course. The law’s goal is to provide military families transferring from other locations with the flexibility to begin the enrollment process as soon as a military transfer order is given and prior to being physically within the boundaries of the school district. Parents must provide proof of residence within 10 days after their published arrival date via official documentation.

California hosts more than 30 military installations and 168,000 active-duty service members. It is anticipated that school districts immediately surrounding such military installations may be the most affected by the requirements of SB 1455.

If you have any questions about AB 2016, AB 2306, SB 1455, or any other issues impacting California students, 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

Erin Hamor

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.

Public Finance Legislative Roundup

October 2016
Number 69

In August and September 2016, Governor Jerry Brown signed three Assembly bills and one Senate bill related to public finance, including bills regarding K-14 school districts’ general obligation bonds and school district parcel taxes.

The specifics of each bill are described below.

Assembly Bill (AB) 2116: Requirement to Obtain Reasonable and Informed Projections of Assessed Valuations Prior to Ordering a Bond Election

Some critics have complained that too often, advisors may be tempted to offer an overly optimistic revenue projection when presenting a potential bond measure to a district’s governing board. AB 2116 is intended to provide improved school bond oversight, accountability and fiscal responsibility by requiring that the governing board consider the county assessor’s projections as well. As amended by the bill, Education Code section 15100, subdivision (c) now requires a school district or community college to “obtain reasonable and informed projections of assessed property valuations that take into consideration projections of assessed property valuations made by the county assessor” before calling a bond election. The Governor signed the bill on August 17, 2016 and it becomes effective on January 1, 2017.

Assembly Bill (AB) 1891: Parcel Tax Exemptions Granted by a School District are Now Valid until Taxpayer Becomes Ineligible

Under existing law, a public agency granting exemptions from parcel taxes to seniors or disabled individuals may choose whether to require an annual re-certification or “opt-out” from paying the special tax. By adding section 50079, subdivision (d) to the Government Code, AB 1891 clarifies that any exemption granted shall remain in effect until the taxpayer becomes ineligible and that, if the taxpayer becomes ineligible, a new exemption may be granted by the school district in the same manner as the original exemption. The Governor signed the bill on September 22, 2016 and it becomes effective on January 1, 2017.

Assembly Bill (AB) 2738: Bond Construction Proceeds on Deposit with the County May No Longer be Invested Outside of County Treasury

AB 2738 is intended to address a dispute over ostensibly conflicting law as to whether a district may withdraw funds from a county-held building fund for investment outside of the county treasury pool. As a matter of policy, AB 2738 answers the question in the negative. The bill amends section 15146, subdivision (g) of the Education Code to expressly prohibit a school district or community college from withdrawing bond proceeds from the building fund held by the county for investment outside of the county treasury. The Governor signed the bill on September 22, 2016 and it becomes effective on January 1, 2017.

Senate Bill 1029: Additional Annual Bond Reporting Requirements to State Treasurer

SB 1029 continues the State Treasurer’s drive for more transparency in bond reporting for California public agencies. Effective for any debt for which the public agency files a “Report of Final Sale” on or after January 17, 2017, all public agencies issuing bonds, notes, certificates of participation or other debt must supply the California Debt and Investment Advisory Commission (CDIAC), a commission chaired by the State Treasurer, with an annual report containing information about the public agency’s debt issued and outstanding and the use of proceeds of the debt, for the prior reporting period (July 1 through June 30). The annual report will be due to CDIAC within seven months of the end of the reporting period (starting with the report due in January 2018, for any debt sold after January 1, 2017.) SB 1029 affects section 8855 of the Government Code, which generally authorizes CDIAC to collect, maintain and provide information on local agency debt and investments. The Governor signed the bill on September 12, 2016 and it becomes effective on January 1, 2017.

If you have questions about general obligation bonds or any other issues impacting California school district or community college financing, 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:

Sean Mick

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 Department of Education Offers Guidance on Short-Term Removals and Behavioral Supports for Students with Disabilities

October 2016
Number 68

On August 1, 2016, the United States Department of Education (DOE) issued new guidance in the form of a Dear Colleague Letter to address the impact of short-term disciplinary removals for students with disabilities. Although not binding law, the guidance provides useful information and reminders for school districts when addressing behavior and discipline.

While local educational agencies (LEA) may remove (e.g., suspend) students with disabilities who violate a code of conduct, LEAs also have an obligation to assess and address the behavioral needs of students with disabilities. The DOE is concerned LEAs are suspending without restriction and without reviewing students’ Individualized Education Programs (IEP). The DOE is also concerned that students with disabilities are missing valuable instruction and losing out on behavioral interventions and supports offered in their IEPs.

In its new guidance, the DOE notes that disciplinary removals often include office referrals, sending the student out of school with a condition for return and having the student leave early from school – actions that the guidance says do not deter misbehavior and are linked to lower academic performance. The DOE opines that these disciplinary removals are a result of minor misbehavior incidents that are not related to the student’s or school’s safety, and should instead be addressed through behavioral supports.

The guidance reminds LEAs that IEP teams must address a student’s behavior that impedes his or her learning or the learning of others, and LEAs must teach behavior just as it teaches reading to students with disabilities. To this end, the DOE advises LEAs to do the following:

  • Train staff on disciplinary measures (consistent with a student’s IEP) that do not equate to a removal such as study carrels, time-outs and restriction of privileges.
  •  Consider implementing interventions and supports such as reinforcement of school expectations, violence prevention programs, anger management groups and life skills training.
  •  Identify and train staff on other research-based positive behavioral interventions and supports (PBIS).
  •  Consider a multi-tiered behavioral framework approach to addressing behavior.

The guidance makes clear that LEAs still retain flexibility in suspending students, as school safety is paramount. But it emphasizes the research showing suspensions are producing unintended and undesirable results. The guidance also reminds LEAs that incidents of misbehavior, classroom disruptions and code of conduct violations suggest that the student’s IEP does not include appropriate behavioral interventions and supports or that the existing supports need to be altered. Failure to do so could result in a denial of a free and appropriate public education (FAPE).

As the school year proceeds, LEAs should keep in mind the importance of ensuring the behavioral needs of students with disabilities are supported and disciplinary measures are appropriately implemented. The full text of the DOE guidance is here, and the press release is here.

For questions regarding the DOE’s guidance regarding behavioral supports, 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:

Deborah Ettinger

Senior Counsel

Michelle Truong

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.