Local Education Agencies Now Prohibited from Collecting Social Security Numbers

March 2017
Number 13

Armed with the understanding that Social Security numbers are the piece of information most used by criminals perpetrating identity thefts, the California legislature has barred local education agencies from collecting them.

Effective January 1, 2017, Assembly Bill (AB) 2097 modified section 56601 of the Education Code to prohibit school districts, county offices of education and charter schools from collecting or soliciting Social Security numbers or the last four digits of Social Security numbers from pupils or their parents or guardians. Prior to the law’s effective date, Education Code section 56601 authorized the Superintendent of Public Instruction to collect and use the Social Security numbers of individuals with exceptional needs as student identification numbers in order to assist the state in evaluating the effectiveness of special education programs.

AB 2097 was a direct response to issues raised inMorgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ. (E.D. Cal., No. 2:11-cv-3471) (Morgan Hill), a case brought by parent groups who claimed the state systematically failed to provide disabled children with a free and appropriate public education. ( See 2016 Client News Brief No. 12.) During the discovery process in Morgan Hill, the court issued an order requiring the California Department of Education (CDE) to release student data relating to as many as 10 million current and past public school students. The data was presumed to include sensitive information, such as student Social Security numbers. Some of the central concerns raised by parents in response to this order were the security of their children’s information and the possibility of identity theft.

AB 2097 repealed Education Code section 56601’s authorization to collect and use Social Security numbers in conjunction with special education programs and requires the Superintendent of Public Instruction to instead assign and use student identification numbers, commencing with the 2017-18 fiscal year and phased in over a two-year period. AB 2097 also added section 49076.7 to the Education Code to implement a broad prohibition on local educational agencies from collecting or soliciting Social Security numbers or their last four digits from pupils or their parents or guardians in any program, unless otherwise required to do so by state or federal law. Going even further, AB 2097 authorizes the CDE to create additional restrictions on the collection and solicitation of other personally identifiable information.

This new law should not only alert public agencies to the risks of and prohibitions against requesting Social Security numbers, but should serve as a reminder that public agencies should review and update non-complying forms and processes.

The newly added Education Code section 49076.7 declares that pupil data privacy is a priority because students are at risk of identity theft when providing their Social Security numbers to local educational agencies. It cites to a technical brief published by the United States Department of Education (DOE) in 2010, “ Data Stewardship: Managing Personally Identifiable Information in Electronic Student Education Records.” Through its brief, the DOE provides guidance and “best practices” regarding the ongoing management of electronic data collection, processing, storage, maintenance and use of student records. It addresses data stewardship at all levels of governance, ranging from the state department of education to individual schools. Resources like this may be invaluable to public agencies as they assess their current practices and vulnerabilities.

Data governance and stewardship in the public sector are becoming increasingly important as public sector agencies continue to transition from the use and storage of paper records to electronic and online data. For educational agencies, this transition has raised concerns about the storage and release of sensitive and confidential student information because the laws and regulations governing student records have been slower to evolve than the technology used to electronically collect, use and store the data.

To better protect electronic data maintained by public sector agencies, as well as the agencies themselves, Lozano Smith’s Technology & Innovation Practice Group is committed to working with its clients in order to refine
and develop their data policies and practices. If you have any questions about AB 2097 or any other issues related to student privacy or data protection, please contact the authors of this Client News Brief or an attorney in our
Technology & Innovation 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:

Amanda E. Ruiz

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.

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Supreme Court Clarifies Educational Progress Standard for Students in Special Education

March 2017
Number 12

In a much anticipated decision, a unanimous United States Supreme Court has ruled that under the Individuals with Disabilities Education Act (IDEA), Individualized Education Programs (IEPs) must be reasonably calculated to enable a child with a disability to make appropriate educational progress in light of the child’s circumstances. (Endrew F. v. Douglas County Sch. Dist. RE-1 (March 22, 2017, No. 15-827) ___ U.S. ___ <https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf&gt;.) The high court vacated and remanded a Tenth Circuit Court of Appeals ruling that set the standard for providing a free, appropriate public education (FAPE) to children with disabilities under the IDEA as requiring “merely more than de minimis” educational progress.

Endrew F. is a child with autism who attended school within the Douglas County (Colo.) School District from preschool through fourth grade. When the child’s IEP team met to discuss his IEP for his fifth grade year, his parents contended the new IEP was substantially similar to his fourth grade IEP and the same goals were generally carried over from year to year. They argued this meant he was not making appropriate progress and enrolled him in a private school for students with autism. The private school created a behavior intervention plan and new academic goals and he achieved significant progress there.

The child’s parents later filed a complaint against the school district alleging a failure to provide a FAPE. An administrative law judge, a federal district court and the appellate court all found the IEP was reasonably calculated for the child to make some progress, defined as “merely more than de minimis.” The Supreme Court then grantedreview.

Foundational to the Supreme Court’s opinion is an acknowledgement ofBoard of Education v. Rowley (1982) 458 U.S. 176, the landmark ruling that established the existence of a substantive standard for FAPE. Refusing to adopt an “equal opportunity” standard inRowley, the Supreme Court required “some” educational benefit but declined to adopt a single measure of adequacy. Upholding Rowley and relying on the statutory language of the IDEA, the Supreme Court inEndrew F. found that in order for a school district to provide a FAPE under the IDEA, an IEP must be reasonably calculated to enable a child to make appropriate educational progress in light of the child’s circumstances and that sufficient progress means exceeding “merely more than de minimis.”

The Supreme Court reasoned that this standard “should come as no surprise” considering the IDEA’s many references to individuality, includingspecially designed instruction, unique needs of a child, and even individualized education program. While declining to establish a bright-line rule regarding what constitutes “appropriate” progress, the Supreme Court held that FAPE necessitates designing a program which allows a student to “‘advance appropriately toward attaining the annual goals’ and, when possible, ‘be involved in and make progress in the general education curriculum'” as statutorily required. “[F]or most children [that] will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade. If that is not a reasonable prospect for a child, his IEP need not aim for grade level advancement,” the Court added. “But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.”

California special education decisions have long applied a standard similar to the one advanced by the Supreme Court in Endrew F. Ninth Circuit decisions have historically interchanged “some educational benefit,” “educational benefit” and “meaningful educational benefit” when applying the Rowley standard to require something meaningful for a particular child. Office of Administrative Hearings decisions frequently cite to Second, Fourth and Eighth Circuit authority holding that FAPE requires progress commensurate with ability, which appears consistent with the standard offered by the Supreme Court. As such, this new iteration of the Rowley standard may have limited impact in California. However, the practical examples outlined in the decision, including issues related to least restrictive analysis, grade level standards and advancement, goal revision, and the instruction that staff be prepared to explain how programs are designed to offer progress appropriate in light of circumstance, should be thoroughly considered by California school districts moving forward.

For more information on Endrew F. or its impact on the development of IEPs and offers of FAPE, 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:

Sarah L. Garcia

Partner

Colleen R. Villareal

Senior Counsel

©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.

Supreme Court Returns Transgender Student Rights Case to Lower Court

March 2017

On March 6, 2017, the United States Supreme Court sent the case of Virginia transgender high school student Gavin Grimm back to an appellate court, which must now consider the case and the parties’ arguments “in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017” that rescinded the Obama administration’s May 2016 guidance on transgender student rights and facilities access. (Gloucester County School Board v. G.G. (March 6, 2017, No. 16-273).)

Last April, the United States Court of Appeals for the Fourth Circuit held that courts should defer to the Obama administration’s guidance on and interpretation of Title IX and Title IX’s regulations (specifically, 34 C.F.R. § 106.33) relative to access to school restrooms based upon gender identity. The appellate court’s ruling held that Grimm should have access to school restrooms based upon gender identity.

The Supreme Court’s order to vacate the court of appeals’ decision follows the Trump administration’s rescission in February of the Obama administration’s guidance. ( See 2017 CNB No. 9.) For now, it is left to the lower courts in this matter to decide whether gender identity discrimination constitutes sex-based discrimination prohibited by Title IX, or possibly under other theories of law, such as constitutional equal protection.

As we await further guidance from the courts on this important interpretation of federal law, California school districts are reminded that their obligations under state law remain unchanged. AB 1266 (Ed. Code, § 221.5(f)), which became effective January 1, 2014, and other state laws (Ed. Code, §§ 220, 234.1), prohibit discrimination against students based upon their gender identities and require that students be permitted to use facilities and participate in sex-segregated school programs and activities that are consistent with their gender identities. (See 2014 Client News Brief No. 14
and 2016 Client News Brief No. 16.)

For more information on the Supreme Court’s decision or on federal Title IX guidance and state law regarding gender identity, 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:

Joanna J. Kim

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.

California Public Records Act Applies to Private Accounts

March 2017
Number 11

Emails, text messages and other written communications sent to or from a public official’s private account may be subject to disclosure under the California Public Records Act (CPRA), the California Supreme Court ruled unanimously in a highly anticipated decision published on March 2, 2017. (City of San Jose et al. v. Superior Court (March 2, 2017, No. S218066) ___ Cal.5th ___ < http://www.courts.ca.gov/opinions/documents/S218066.PDF>.)

The court held that the public has a right under the CPRA to access texts, emails and other records discussing public business regardless of whether the records were created, received by or stored in a private account. “If public officials could evade the law simply by clicking into a different email account, or communicating through a personal device,” the court wrote, “sensitive information could routinely evade public scrutiny.”

This case had its origin in a 2009 lawsuit against the City of San Jose, its redevelopment agency and several city officials. The plaintiff in that case, a community activist, claimed that the city’s failure to provide certain records regarding a downtown redevelopment project and other city business violated the CPRA. The city had provided certain records, but declined to provide voicemails, emails and text messages that were sent and received by city officials on personal devices using personal accounts. In 2013, a trial court judge ruled against the city, finding that communications sent to or received from city officials regarding public business are public records regardless of what device or account was used to create and deliver them. ( See 2013 Client News Brief No. 17.)

The city appealed the decision, and in 2014, the Sixth District Court of Appeal reversed the decision. The appellate court ruled that the CPRA’s definition of public records as communications “prepared, owned, used, or retained” by a public agency did not include messages sent or received on individual city officials’ and employees’ private devices and accounts. ( See 2014 Client News Brief No. 21.) Distinguishing between a public agency as the holder of public documents and its individual elected officials and employees, the appellate court held that, as a practical matter, the city could not use or retain a message sent from an individual council member’s phone that was not linked to a city server or account. While acknowledging the potential for abuses, the court determined that it is up to the Legislature to decide whether to require public agencies to police officials’ private devices and accounts.

The community activist then appealed to the California Supreme Court, where the case languished for nearly three years before the high court overturned the appellate decision.

In its ruling, the Supreme Court disagreed with the appellate court because records “prepared” on private devices could still qualify as public records. The high court observed that the agency itself is not a person who can create, send and save communications; rather, any such communication would come from or be received by an individual. As such, the city’s elected officials and employees were in essence acting as the city, and to the extent that their emails pertained to city business, they were public records.

The court did narrow the type of records that are subject to disclosure, holding that records containing conversations that are primarily personal in nature are not subject to disclosure under the CPRA. The court also acknowledged that determining whether particular communications constitute public records is a heavily fact-specific process, and decisions must be made on a case-by-case basis. This will create challenges for public agencies as they attempt to follow the reasoning of this decision.

The court also addressed the practical challenges around retrieving records from personal accounts, including ways to limit the potential for invading personal privacy. For guidance, the court offered examples of methods for retrieving records from personal accounts including procedures adopted by federal courts applying the Freedom of Information Act and followed by the Washington Supreme Court under that state’s records law that allow individuals to search their own devices for responsive records when a request is received and to submit an affidavit regarding potentially responsive documents that are withheld. The court also discussed adoption of policies that would prohibit the use of personal accounts for public business, unless messages are copied and forwarded to an official government account. While these methods were offered as examples, the court did not endorse any specific approach.

The opinion did not address a host of other practical issues, such as how public agencies should proceed when employees refuse or fail to provide access to records contained in their private accounts.

The decision means that public agencies must now carefully consider how to retrieve business-related public records that may be located in employees’ and officials’ personal accounts. One approach is to create new policies that address the decision. However, public agencies should consider the implications such policies may have on issues such as collective bargaining, records retention, acceptable use policies and other policies concerning technology.

Lozano Smith attorneys can provide a wide array of CPRA services, including preparing policies to address this opinion, responding to CPRA requests, analyzing documents and assisting in related litigation. Lozano Smith has a model email retention policy, and is in the process of reviewing and updating this and other model policies to reflect the impact of this decision. In order to receive our existing retention policy, which addresses individual employees’ obligations in relation to electronic communications, or to request our upcoming board policy to address the court’s decision, you may also email Harold Freiman at hfreiman@lozanosmith.com or Manuel Martinez at mmartinez@lozanosmith.com. We will also be producing webinars about the City of San Jose case and electronic records under the CPRA.

For more information on the City of San Jose opinion or about the California Public Records Act application to personal technology 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:

©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.