Student Walkouts: What Your District Needs to Know

February 2018
Number 7

This Client News Brief was updated on March 6, 2018.

UPDATE: California Department of Education Issues Guidance

The California Department of Education (CDE) and State Superintendent of Public Instruction Tom Torlakson released guidance on March 2 regarding student walkouts. Echoing the suggestions above, the CDE calls for schools to provide outlets for student political expression through classroom or school-wide discussions, as well as for proactive discussion with students and the school community regarding the consequences of a walkout. A walkout-unless students miss the entire instructional day-is also “unlikely” to lead to loss of funding based on Average Daily Attendance (ADA). The guidance also notes that schools may not recover a loss of funds related to walkouts through the emergency ADA (J13-A) approval process.

Original News Brief – Published Feb. 28, 2018.

The mass shooting at Marjory Stoneman Douglas High School in Parkland, Fla. has intensified the nationwide debate about gun control and school safety. Inspired by the activism of the Parkland survivors, students nationwide are engaging in walkouts and protests. Some have already taken place, while other, larger-scale walkouts are planned for March 14 and April 20. Reportedly, there are even plans for a walkout that will last until Congress acts on gun control legislation. The walkouts revive the question of whether student walkouts are subject to regulation by school officials.

In short, students have free speech rights at school, but school districts are permitted to regulate student conduct in violation of school attendance policies, including students’ unexcused absences for participation in student walkouts. School officials are best served to consider measures that will minimize the impact of student walkouts on student instruction and the educational environment, and may also wish to consider alternatives through which students can express their political and social views on important public issues.

Student Free Speech Rights vs. Unexcused Absences

Schools have long been a forum for political activism, and the courts have laid down clear rules for school districts seeking to govern it. InTinker v. Des Moines, the United States Supreme Court held that speech is allowed so long as it does not disrupt the educational environment. More recently, the Ninth Circuit Court of Appeals, in decidingCorales v. Bennett, held that school absences related to walkouts must be addressed in the same way as any other unexcused absence. ( See Lozano Smith 2009 Client News Brief No. 31.) Corales involved school officials’ response to student walkouts in protest of pending immigration reform measures in California. The court ruled in Corales that a school’s prohibition against student walkouts because they will result in student truancy is regulation of student conduct, not student speech. In other words, regardless of the
political nature or subject matter motivating student walkouts or participation in public rallies, a school’s anti-truancy policies and the regulation of those policies under applicable Education Code provisions is aimed not at the truant student’s speech activities, but the student’s required attendance at school absent an excused absence. As a result, the court held that students do not have a free speech right to leave school to participate in protests, and absences for this reason are not normally identified as excused.

Responding to and Minimizing the Impact of a Walkout

In anticipation of planned protests and walkouts, school districts may wish to consider options to minimize disruption and ensure positive student and community relations. This could include involving cities, law enforcement, and other relevant agencies in planning meetings to address walkout or protest-related concerns. Consistent with Corales, school districts may mark student absences as “unexcused” when a student participates in a walkout. Regardless of the position a district or its governing board takes on the issue of guns, if a district is considering marking student absences for participation in the anticipated walkouts “excused,” such districts should take caution: To account for these anticipated walkouts as excused absences, but not take the same approach (in the past or in the future) when students participate in walkouts regarding other issues, may likely raise viewpoint discrimination concerns, i.e., endorsing one political position but not another.

Those school districts intending to treat student absences for any walkouts as unexcused should consider reminding students and parents in advance that attendance at school is mandatory and is only excused for reasons set forth in the district’s Board Policies and Regulations, as allowed under Education Code section 48205. This may help to ensure that students and parents have a clear picture that absences for the purpose of attending a walkout will not be excused.

Discussing Controversial Issues at School

Finally, apart from the rule and guidelines expressed by the court inCorales, student reaction and expression to the most recent school shooting and any related discussion regarding gun control may present school officials and instructors the opportunity to remind students of the importance of free speech rights and of respecting the views of those with whom they disagree. To that end, school districts may wish to consider the California School Board Association’s model Board Policy 6144, entitled “Controversial Issues,” which many California school districts maintain. That model policy provides a sound framework for appropriately addressing controversial issues with students in the classroom. Districts may also wish to consider planning community or school forums to allow for such discussions by students.

If you have any questions about student walkouts, or student free speech rights in general, please contact an attorney at one of our eight 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 R. Simmons

Partner

Aimee Perry

Senior Counsel

Tilman A. Heyer

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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School District Policy Prohibiting Active Strikers from Entering School Grounds Violated the First Amendment

February 2018
Number 6

A public school district’s policies prohibiting picketing and the display of signs and banners on District property violated the free speech rights of picketers and their supporters, the Ninth Circuit has ruled. (Eagle Point Educ. Ass’n. v. Jackson County School District No. 9 (9th Cir. Jan. 26, 2018, Nos. 15-35704, 15-35972) ___ F.3d ___.)

Background

Anticipating a teacher strike, the Jackson County School District No. 9 in Oregon adopted two resolutions that targeted would-be strikers and their supporters. One resolution prohibited picketing on any property owned or leased by the District, and also prohibited picketers from entering school facilities for any reason. The second disallowed signs and banners in or on facilities leased or owned by the District, unless written approval of the superintendent was obtained in advance.

The policies prevented striking teachers who were also parents from visiting their children at school on any day that they were in the picket line, and a striking teacher was turned away from attending a weekend flower sale at the local high school. A high school senior who drove onto campus with a sign on her windshield that read “I Support D9 Teachers” was prohibited from parking in the school parking lot, while several students were told not to come to school for a day after they voiced their support of the striking teachers on Facebook.

The union, a union member, and a student sued the District alleging that the policies violated their free speech rights under the First Amendment and the Oregon Constitution. Judgment was entered in their favor, and the District appealed.

In reviewing the case, the Ninth Circuit considered District facilities and school grounds to be non-public forums, meaning speech on the property could be restricted so long as the restrictions were reasonable and viewpoint neutral. But the court held that the District’s policies were not viewpoint neutral, adding that they were directly aimed at stifling disagreement with the District’s position on the strike. The court noted that the District made it known that they wanted to avoid sending “a garbled message to parents and taxpayers by allowing striking teachers access to school property to picket, chant, and display signs and banners.”

The District argued that the policies were reasonably necessary in order to keep school operating without issue during the strike, but the court disagreed, finding that the District offered no evidence to show that there was any risk of disruption or violence on campus due to potential picketing, signs, or banners. The court also noted that the restrictions were not tailored to address disruption of instructional time.

Takeaways

While this decision does not preclude public school districts from taking action to ensure normal school operations during a strike, it serves as a reminder that any restrictions imposed must be reasonable under the circumstances and must not be aimed at suppressing expressions of disagreement with district positions.

For more information about this ruling or about addressing student and staff free speech rights in general, please contact an attorney at one of our eight 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 A. Grantham

Partner

©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.

New Law Eases Path to School Employee Housing

February 2018
Number 5

As a result of California’s affordable housing crisis, school districts face challenges in retaining teachers and school district employees, particularly in regions with high housing costs. California lawmakers sought to address the problem by proposing Assembly Bill (AB) 1157 and AB 45 to make it easier for districts to promote housing development for district employees, though Governor Jerry Brown vetoed the latter bill.

AB 1157 was part of a package of 15 housing bills approved by lawmakers that became effective on January 1, 2018. ( See 2017 Client News Brief No. 81.) While most of the bills were not focused specifically on school employee housing issues, they have the potential to substantially impact school districts by creating an influx of new students.

AB 1157: School Surplus Property Use for Teacher Housing

Effective January 1, 2018, AB 1157 exempts school districts from the requirement that they establish a property advisory committee to consider declaring property surplus if the district intends to use the surplus property for employee rental housing. Education Code sections 17388 and 17391 require the governing board of a school district to appoint a school district advisory committee (commonly known as a “7-11 Committee” for the number of positions on the committee) prior to the sale, lease, or rental of surplus real property, with limited exceptions. AB 1157 adds language to Education Code section 17391 to create an exception to this requirement for the sale, lease, or rental of real property that is to be used for teacher or district employee housing.

This new law also provides that school or community college district property used for teacher or district employee rental housing are tax exempt.

AB 1157 also adds language to Education Code section 17456 regarding the financing of school district employee housing projects. That statute exempts certain sale/saleback and lease/leaseback property transactions from the full surplus property process, including notice and offer requirements and either competitive bidding or a waiver of the bidding requirement from the State Board of Education, so long as proceeds from the transaction are used for construction, reconstruction, or renovation of school facilities or to acquire property for use as a school site. The statute now also specifies that “the construction, reconstruction, or renovation of rental housing facilities for school district employees” is a permissible capital outlay expenditure.

The express legislative intent behind AB 1157 was to exempt school district property to be used for teacher or district employee housing from the surplus property process. According to the author of the bill, such housing serves an “educational purpose,” and is therefore not surplus property. It seems that by adding language regarding employee housing projects to a statute that already exempted certain transactions from the surplus property process, the bill’s author intended to exempt employee housing projects from that entire process. It is unclear, however, whether the revised statute as written provides a blanket exemption for all school district employee housing projects regardless of the type of transaction or financing mechanism employed, or if some employee housing projects may be ineligible for the exemption.

AB 45: California School Employee Housing Assistance Grant Program

AB 45 would have created a $25 million fund for school district employee housing development, but the bill was vetoed by Governor Brown. In his veto message, the Governor noted that he recently signed Senate Bill (SB) 2, which made funds available for local government planning purposes. Rather than creating a new housing program with AB 45, the Governor concluded that districts could work with local governments and the California Housing Financing Authority to maximize funding from SB 2. Unfortunately, this makes local school districts more reliant on other local agencies to achieve funding support for employee housing projects, when those other agencies may be competing for the same dollars.

2017 Housing Bill Package: School Districts May Feel Impacts

The package of housing bills approved by lawmakers in 2017 will make it more difficult for local public agencies to say no to housing projects and will streamline review of certain types of housing development, limiting public input in the approval process. Many school districts attempt to address overcrowding concerns during California Environmental Quality Act (CEQA) review of development projects. Now, the time in which to address school capacity concerns or even the opportunity to do so will be curtailed.

School districts should be prepared to engage in further advance planning to address capacity issues and should stay informed about housing development proposals within their boundaries. The earlier an affected district gets involved in the process, the better prepared the district will be to handle capacity issues and to address the impact of development with the city or county and the developer. Additionally, if housing does create a rapid influx of students, districts may have to engage in school facility planning earlier than in the past.

School districts that qualify for Level 2 developer fees may need to be prepared to review and update their School Facility Needs Analysis (SFNA) more than once per year in order to keep pace with the impacts of the expedited housing bills.

Takeaways

While AB 1157 was intended to streamline the process for approval of employee housing projects, a host of challenges await school districts seeking to embark on such projects. Challenges include collective bargaining implications, tax consequences, and local government oversight. In light of the possible ambiguity in the new law and the aforementioned challenges, school districts may wish to consult with their legal counsel before embarking on employee housing. Lozano Smith has an Employee Housing Working Group, and is ready to assist with these complex considerations.

With the Legislature back in session, lawmakers are proposing new housing bills that could further alter the local development landscape. Lozano Smith will be closely watching the progress of these bills in the event that any become law.

For more information on how school districts can prepare for the effects of these new laws, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold M. Freiman

Partner

Devon B. Lincoln

Partner

lauren Kawano

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.

Retiree Work Hour Limitation Suspended for Fire and Mudslide Response Work

February 2018
Number 4

Governor Jerry Brown has suspended the 960-hour per year work hour limit for retired annuitants who assist California counties battling fires and mudslides. CalPERS announced Brown’s suspension of the rule in a January 29 Circular Letter.

Governor Brown issued a pair of executive orders lifting the work hour limit and other rules in an effort to expedite hiring of emergency workers and to streamline the recovery of communities devastated by the disasters. In addition to suspending the work hour limitation for retired annuitants who assist in disaster response and recovery in the affected counties, the emergency orders exempt retired annuitants hired to expedite disaster recovery from separation and break in service requirements and also, limits on the duration of emergency appointments, the Circular Letter says.

Generally, CalPERS retirees may only work 960 hours per year. Retirees who have reached normal retirement age may only be employed with such an employer after their first 180 days of retirement have passed and only during an emergency to prevent stoppage of public business or because they have skills needed to perform work of limited duration, unless an exception applies.

Retirees who have not reached normal retirement age must have a bona fide separation in service. Normal retirement age is defined by CalPERS as the benefit formula age for a position, i.e. age 55 for the 2% at 55 retirement formula. For a bona fide separation to have taken place, the employee must have a 60-day separation from employment and there must not be a pre-determined agreement between employer and employee to work after retirement.

The suspension applies to hours worked to expedite disaster response and recovery in the affected counties beginning on the date a state of emergency was declared and remaining in place until the declaration is lifted. The Governor issued state of emergency declarations on the following dates:

  • Napa, Sonoma, Yuba, Butte, Lake, Mendocino, Nevada and Orange counties: October 9, 2017
  • Solano County: October 10, 2017
  • Ventura County: December 5, 2017
  • Santa Barbara County: December 7, 2017

Per the Circular Letter, all other provisions related to working after retirement will continue to apply, including the requirement that local government agencies continue to enroll and report retired annuitants to CalPERS, the limits on hourly compensation rates and the prohibitions on other forms of compensation in addition to the hourly pay rate, including any benefit, incentive, or compensation in lieu of benefits.

Any agency employing a retired annuitant pursuant to the waivers must notify the director of the California Department of Human Resources. Notification may be sent via email to wildfirerecovery2017@calhr.ca.gov.

In its letter, CalPERS said it will continue to monitor work hours for retired annuitants covered by the Governor’s executive orders and will communicate to confirm when a violation of the work order limitation is found and if it is accepted under the exception in the executive orders. Anyone with questions about the waivers may contact CalPERS’ Customer Contact Center at (888) 225-7377.

For more information about the impact of the Governor’s executive orders or about pensions in general, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas R. Manniello

Partner

Michele Ellson

Paralegal

©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.

State Allocation Board Adopts Developer Fee Increases

February 2018
Number 3

The State Allocation Board (SAB) has increased the amount of “Level 1” developer fees that school districts are authorized to collect to $3.79 per square foot of residential development and $0.61 per square foot of commercial development. The increase takes effect immediately, and may now be implemented by school districts through local action.

The new rates, which the SAB approved on January 24, 2018, represent an 8.78 percent increase over the maximum amounts authorized as of February 2016. The SAB based its increase on the RS Means cost index for Class B construction.

Government Code section 65995 authorizes the SAB to increase the amount of Level 1 developer fees that school districts are authorized to collect. Such an increase may be adopted in every even-numbered year. The SAB increase does not affect “Level 2” developer fees, which a school district must adopt annually based on its own school facilities needs analysis. The change also does not affect “Level 3” fees, which school districts may only collect when the SAB certifies that state funds for new school facility construction are no longer available.

Based on this and other legal developments, Lozano Smith is preparing an update for the firm’s publication, Developer Fee Handbook for School Facilities: A User’s Guide to Qualifying for, Imposing, Increasing, Collecting, Using and Accounting for School Impact Fees in California. The handbook is intended to help school districts reduce their legal costs by providing comprehensive information regarding California law and process for school impact fees. The handbook contains procedures, timelines, checklists, and forms to be used when adopting and implementing fees and/or increases.

Lozano Smith is making the handbook available at a cost of $100 to public school districts that are also clients of Lozano Smith. The handbook will be available to non-client public school districts at a cost of $200. Non-public agencies can purchase the handbook at the full price of $300. Districts wanting a second or replacement copy may request one for $75. School districts may order the handbookhere. For more information on the Developer Fee Handbook, or to order a copy, you may also contact our Client Services department at clientservices@lozanosmith.com or call (800) 445-9430.

If you have any questions regarding the adoption or implementation of fee increases or any other developer fee issue, please contact an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold M. Freiman

Partner

Kelly M. Rem

Partner

Ellen N. Denham

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.