Closely Watched Charter School Decision Becomes Binding Precedent

January 2017
Number 5

The Third District Court of Appeal’s decision in Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262 (Anderson) is now binding law in California. Following successful legal argument by Lozano Smith, the court, on October 17, 2016, confirmed that the geographic and site limitations of the Charter Schools Act (Act) are applicable to all charter schools, including “nonclassroom-based” programs. On January 18, 2017, the California Supreme Court denied the charter school’s petition for review and request for depublication of the appellate court’s opinion.

As Lozano Smith reported earlier (see 2016 Client News Brief No. 79), the Anderson Union High School District (AUHSD) sued the Shasta Secondary Home School (SSHS) to stop SSHS from improperly locating a facility within AUHSD’s boundaries. SSHS’s charter was authorized by a neighboring school district, and the school did not seek the consent of its authorizer or AUHSD before locating a “resource center” within AUHSD’s boundaries. The Court of Appeal, which evaluated the legislative history of the Act and the rules of statutory construction, determined that all charter schools, even non-classroom based programs that operate “resource centers,” must comply with the Act. The court concluded that charter schools are prohibited from operating facilities outside of the geographical boundaries of their authorizing school district, subject to limited exceptions. By emphasizing the importance of effective local oversight, this decision is a victory for charter school accountability.

This decision will have wide-ranging impacts on charter schools, school districts and county offices of education. While each situation is unique, the education community is already seeing attempts by charter schools to remedy the practice of operating facilities outside their authorizing district’s boundaries. Authorizers should be proactive and review where nonclassroom-based programs are operating in order to ensure compliance with the law. School districts in which out-of-district charters’ facilities are located may receive new charter petitions. Educational entities providing support services such as special education or back office services should consider the potential impacts of closure or relocation on these relationships. Since no two situations will be identical, we encourage school districts and county office of education impacted by this decision work closely with legal counsel to evaluate potential solutions.

Over the past several years, Lozano Smith’s Charter School Practice Group, now led by Edward Sklar and Ryan Tung, have regularly advised school districts on the exact issue resolved by the Court of Appeal. AUHSD was represented by Lozano Smith partners Megan Macy, Sloan Simmons and Anne Collins.

For more information on the Anderson opinion or the Charter Schools Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Charter School Practice Group, Litigation Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Megan Macy

Partner

Edward Sklar

Partner

Ryan Tung

Associate

 

©2017 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.

Schools and Immigration Enforcement

January 2017
Number 4

In the wake of the recent presidential election, changes in immigration law and enforcement may be on the horizon.

Some California K-12 school district and community college district officials have voiced concerns over the potential for increased enforcement of existing immigration laws, due in part to the president-elect’s campaign statements that he would triple the number of enforcement agents at Immigration and Customs Enforcement (ICE) and deport 2 million undocumented immigrants. These proposals appear to have created apprehension in local immigrant communities over potential enforcement visits to school campuses, and requests from ICE agents for student- and parent-related records and information. The rising fears prompted State Superintendent of Public Instruction Tom Torlakson to issue a statement on December 21, 2016 declaring California’s public schools safe havens for students and their families.

With these developments in mind, many school and community college districts are considering adoption of guidelines for interacting with ICE agents, as well as related alternatives such as “sanctuary school” resolutions and policies.

The federal Family Educational Rights and Privacy Act (FERPA) and California’s Education Code generally limit the disclosure of student records and information without parent consent to specifically delineated exceptions. How ICE agents’ requests for records or information interact with those laws and exceptions may depend on the specific facts of each request, and the form in which ICE makes the request. For example, both FERPA and the Education Code generally require compliance with a lawfully issued subpoena for student records, assuming that is the method through which ICE were to seek such information.

Federal law does not require school districts to report undocumented students to immigration authorities. Moreover, there may be an argument that the United States Supreme Court’s opinion in Plyler v. Doe (1982) 457 U.S. 202, prohibits school districts from reporting undocumented students to law enforcement agencies in the absence of a court order or subpoena requesting such information, as such voluntary reporting could result in denying undocumented students the right to access a free public school education. This said, there are other federal laws that prohibit the intentional concealing or shielding of an illegal alien from detection. Due to the evolving and somewhat unsettled nature of the law in this area, school districts are encouraged to consult with legal counsel regarding these issues.

The potential for increased ICE enforcement and its impact on undocumented students is likely to grow in importance in 2017. As a result, districts may wish to consider their role in relation to this issue, as well as policies, practices or procedures that can provide guidance and structure.

Lozano Smith is working on guidance on these and other immigration-related issues and on model sanctuary campus policies for our school and community college district clients. If you are interested in receiving our guidance or copies of our model policies or have any questions regarding immigration enforcement on school campuses, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit ourwebsite, follow us on Facebook or Twitter or download our Client News Brief App.
Written by:

Kristy J. Boyes

Associate

©2016 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Attorney Invoices are Subject to Disclosure under the Public Records Act

January 2017
Number 3

The California Supreme Court has ruled that invoices from a public agency’s legal counsel are subject to disclosure under the California Public Records Act (CPRA), with limited exceptions. Invoices for work in pending and active legal matters may generally be shielded from disclosure under the attorney-client privilege.

In Los Angeles County Board of Supervisors v. Superior Court (Dec. 29, 2016, No. S226645) ___ Cal.4th___ < http://www.courts.ca.gov/opinions/documents/ S226645A.PDF >, the court considered to what extent invoices from a public entity’s attorney are subject to disclosure under the CPRA.

The American Civil Liberties Union (ACLU) suspected attorneys for the Los Angeles County jail system of wasting public funds by engaging in “scorched earth” litigation tactics. The ACLU submitted a CPRA request to Los Angeles County (County) seeking invoices indicating amounts billed in connection with nine different lawsuits in order to determine whether the county engaged in wasteful legal strategies. The county agreed to produce invoices relating to three lawsuits that were no longer pending, with attorney-client privileged information redacted, but declined to produce invoices for the six remaining lawsuits that remained pending, claiming the attorney-client privilege protected them from disclosure.

The Court of Appeal ruled that the attorney-client privilege generally protects attorney invoices from disclosure if the invoices were maintained in a privileged manner.

In a close 4-3 ruling, a divided Supreme Court reversed the appellate court’s decision, balancing competing rights and privileges in its majority opinion. While the CPRA provides the public with a broad right of access to records in the possession of state and local government agencies, it also contains a number of exceptions that protect certain categories of documents from disclosure, including documents protected by the attorney-client privilege.

In analyzing whether attorney invoices are categorically protected by the attorney-client privilege, the Supreme Court adhered to the principle that “the heartland of the privilege protects those communications that bear some relationship to the attorney’s provision of legal consultation.” The court explained that the attorney-client privilege does not extend toall communications between an attorney and client, but rather “to communications that bear some relationship to the provision of legal consultation.” The court concluded that the primary purpose of invoices is for the attorney to receive payment, and not “for the purpose of legal consultation.” In other words, invoices may not be withheld simply because they are sent from an attorney. Whether an invoice or specific information in the invoice can be withheld is a fact-specific inquiry into whether the invoice as a whole, or certain information contained in it, bears a relationship to the provision of legal consultation.

The court concluded that information in an invoice “to inform the client of the nature or amount of work occurringin connection with a pending legal issue” is protected by the attorney-client privilege. The amount of fees being expended on a pending and active legal matter is also privileged, because changes in spending could indirectly reveal legal strategy to a party that can use that information to the detriment of the government agency. However, fee information for concluded legal matters may not be subject to the privilege because, over time, the information “no longer provides any insight into litigation strategy or legal consultation.” While the fee information contained in such an invoice may not be protected by the attorney-client privilege, the court’s opinion appears to allow redaction of specific information in the invoice that may reveal information about legal consultation, though the court was not that express about this point.

The takeaways from this case can be summarized as follows:

  • Legal invoices for concluded matters are disclosable, subject to any lawfully allowed redactions of information that reveals attorney-client confidences; and
  • Legal invoices for pending or active matters can be withheld in their entirety.

Lozano Smith strives to provide invoices that have sufficient information for audit purposes and to keep clients informed. However, we are conscious of our clients’ obligations under the CPRA and endeavor to avoid including information in invoices that could reveal attorney-client privileged advice or strategy.

For more information on this case or the California Public Records Act in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App .
Written by:

Nicholas J. Clair

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.

Court of Appeal Weighs In On Non-Educational State Agency’s Role in Providing Related Services

January 2017
Number 2

In its recent decision in Department of Health Care Services v. Office of Administrative Hearings(Nov. 29, 2016, F071023) __ Cal.App.4th __ <http://www.courts.ca.gov/opinions/documents/F071023.PDF>, the Fifth Circuit Court of Appeal held that during a dispute between a local education agency (LEA) and a non-educational state agency over the provision of services included in an Individualized Education Program (IEP), the department or agency that provided the services before the dispute arose must continue to provide them until the dispute is resolved.

The case involved a student who was eligible for special education services from the Sonora Elementary School District (Sonora) and occupational therapy (OT) and physical therapy (PT) services from the Department of Health Care Services (Department), California Children’s Services Program (CCS). The student’s OT and PT services were included in her IEP as related services. Over the course of two school years, CCS made changes to the amount of time, frequency and delivery of its services, ultimately reducing the level of OT and PT services it provided to the student and changing them from direct therapy to monitoring sessions only. CCS made these changes unilaterally, outside the IEP process, and implemented them without parental consent.

The student filed a special education due process complaint against CCS before the Office of Administrative Hearings (OAH), alleging that CCS denied her a free and appropriate public education (FAPE) during the two school years in question. CCS moved to dismiss the case on the grounds that the OAH lacked jurisdiction over the matter; alternatively, it sought to limit the claims asserted against CCS by bringing Sonora and the Tuolumne County Office of Education (collectively referred to as “educational agencies”) into the case. The OAH denied CCS’s motion to dismiss, but ordered the educational agencies to be included as defendants in the action. The student agreed to waive all claims and resolve all disputes related to the educational agencies’ provision of FAPE and services, thereby dismissing the educational agencies as parties from the action. The hearing proceeded with only the student and CCS.

The administrative law judge (ALJ) hearing the matter for OAH ruled in favor of the student, determining that CCS was required to utilize the IEP development process and due process hearing procedures set forth by the IDEA in order to make changes to its recommended services. The ALJ ordered CCS to provide compensatory services and to restore the student’s OT and PT services to the levels provided for in her last agreed-upon IEP. The Department elevated the matter to the trial court, which affirmed the order of the ALJ.

The Department then petitioned the Court of Appeal for review of the trial court’s decision; Lozano Smith represented Sonora and the Tuolumne County Office of Education when they rejoined the case as real parties in interest. The court evaluated the Department’s claim that OAH lacked jurisdiction to determine whether OT and PT services are medically necessary, and consequently, whether the ALJ had the authority to award compensatory services and restoration of services. The court recognized that services contained a student’s IEP – whether medically or educationally necessary – are related services; and as such, any dispute concerning the provision of those services may be resolved in special education due process hearings.

Guided by federal and state law, the court resolved that during a dispute between an LEA and a non-educational state agency over the responsibility for the provision of services, the department or agency that provided the services before the dispute is required to continue providing the services until the dispute is settled. Based on this, the court affirmed the decision of the ALJ, as CCS’s unilateral decision to reduce or terminate OT and PT services included in the student’s IEP constituted a violation of the IDEA and state regulations.

The Department has initiated similar litigation against school districts throughout the state, seeking to shift its legal obligation to provide medically necessary services onto LEAs. This decision reaffirms the notion that non-educational agencies and LEAs are jointly responsible for the provision of related services included in a student’s IEP, and that non-educational agencies are not outside the purview of the IDEA with respect to those services.

For more information about the decision or the provision of related services in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Mary Guiterrez

Senior Counsel

Joanne Kim

Associate

©2016 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Ninth Circuit Focuses on Timing of Student’s Due Process Complaint for Stay Put Placement

January 2017
Number 1

In a recent decision, N.E. v. Seattle School District (9th Cir., Nov. 17, 2016, No. 15-35910) ___ Fed.Appx. ___ 2016 U.S. App. LEXIS 20612, the Ninth Circuit Court of Appeals upheld a lower court’s denial of a student’s request for injunctive relief related to their stay put placement. The appellate court focused on the timing of the student’s due process complaint and his placement for the upcoming school year.

The N.E. case is interesting because it involves a multi-stage Individualized Education Program (IEP) placement and a stay put ruling regarding a placement that was never implemented.

For the 2014-2015 school year, N.E. spent most of his school day in a general education setting. During the school year, N.E. began to regularly exhibit severe behavioral issues. In May 2015, Bellevue School District (Bellevue) held an IEP meeting for N.E. and discussed removing him from the general education setting and placing him in a self-contained special education class for students with behavioral and emotional disorders (self-contained class). Bellevue’s proposed IEP for N.E. included placement in a self-contained class, but N.E.’s parents disagreed. The IEP team agreed that N.E. would finish the 2014-2015 school year at a different school that would provide him with a one-on-two educational setting with a teacher and a paraeducator (individual class). The next day, Bellevue finalized N.E.’s May 2015 IEP, documenting the agreement between Bellevue and N.E.’s parents that N.E. would finish the 2014-2015 school year in the individual class. Per N.E.’s May 2015 IEP, N.E. would be placed in a self-contained class for the 2015-2016 school year.

Between the end of the 2014-2015 school year and the start of the 2015-2016 school year, N.E. moved to Seattle. When N.E. tried to enroll in the Seattle School District (Seattle), Seattle proposed placing N.E. in a self-contained class, similar to the placement set forth in N.E.’s May 2015 IEP. N.E.’s parents objected, filed a due process complaint against Seattle, and sought a stay put placement. N.E.’s parents argued that the stay put placement was a general education class per N.E.’s December 2014 IEP, and further argued that the self-contained class was not stay put because the recommendation to place N.E. in a self-contained class had never been implemented.

The administrative law judge disagreed with N.E.’s parents and concluded that the self-contained class was N.E.’s stay put placement. N.E. appealed the decision to the district court. The district court denied N.E.’s request and N.E. appealed to the Ninth Circuit Court of Appeals, which affirmed the district court’s denial of injunctive relief.

The appeals court held that the “then-current educational placement” was the educational setting that N.E. was actually enrolled in at the time of his due process request, which in this case was the self-contained class. Since N.E. filed his due process complaint after completing the 2014-2015 school year, the current placement was the self-contained class for the 2015-2016 school year. N.E. argued that the self-contained class was not the stay put placement, because he had not yet been placed in that class when the due process complaint was filed. The Ninth Circuit disagreed, emphasizing that N.E.’s reasoning would allow students to repeatedly challenge the second half of any two-stage IEP when a transition occurs – a result the court said Congress did not intend. The court also noted that N.E. was scheduled to attend the self-contained class when he filed his due process complaint.

In a dissent, one judge opined that the purpose of a stay put provision is to prevent school districts from moving students to more restrictive environments while their due process complaints are pending. The dissenting judge expressed that N.E., who argued that he did not realize the self-contained classroom would be his stay put placement until he enrolled in Seattle, was penalized for the timing of his due process complaint.

In addition to focusing on the timing of complaints when determining stay put placements, the ruling prevents students from repeatedly challenging multi-stage IEP placements during transitions between educational placements.

For more information about the decision or stay put placements in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Guiterrez

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.

School District Bid Threshold Raised for 2017

December 2016
Number 88

According to the California Department of Education Office of Financial Accountability and Information Services, pursuant to Public Contract Code section 20111(a), the bid threshold for K-12 school districts’ purchases of equipment, materials, supplies and services (except construction services) has been adjusted to $88,300, effective January 1, 2017. This represents an increase of 0.626 percent over the 2016 bid limit. The notice may be viewed here.

The California Community Colleges Chancellor’s Office is expected to announce a similar adjustment to the bid threshold for community college districts’ purchases of equipment, materials, supplies and services (except construction services), pursuant to Public Contracts Code section 20651(a), sometime in the next few days. Once released, that information will be availablehere.

The bid limit for construction projects remains at $15,000.

The bid thresholds for cities, counties and special districts are not affected by the bid limits discussed here.

For more information on how the new law impacts your agency, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit ourwebsite, follow us on Facebook or Twitter or download our Client News Brief App.
Written By:

Devon Lincoln

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.