California Adds “Nonbinary” Gender Option to Identification Documents, Impacting All Public Entities

March 2018
Number 13

On October 15, 2017, Governor Jerry Brown signed Senate Bill (SB) 179, known as the “Gender Recognition Act,” which adds a “nonbinary” gender option to state driver’s licenses, identification cards, and birth certificates. Most of this bill’s provisions are set to take effect on September 1, 2018, including a provision allowing an individual to petition a California court to recognize their gender as nonbinary, which would then allow them to subsequently request a new birth certificate reflecting their gender identity.

Public entities will need to address the nonbinary gender option now available to employees and students on official documents. Job application forms will likely require revision to allow the indication of nonbinary gender. Training may be necessary to inform employees about the new law and to re-instruct them about responding appropriately to new job applicants or existing employees who identify with a nonbinary gender, which could be included as part of a public entity’s sexual harassment training. SB 396, also passed in 2017, requires employers with 50 or more employees to conduct training on harassment based on gender identity, gender expression, and sexual orientation. Further, school employees will likely need guidance
on how to address potential issues that may arise on campus regarding nonbinary persons.

SB 179 follows Assembly Bill (AB) 1266, made effective January 1, 2014, which allows students to participate in school programs and activities and use facilities consistent with their gender identity. While AB 1266 is often considered in relation to transgender students, the law itself refers to gender identity, which includes those identifying as nonbinary.

School districts, community college districts, and charter schools should update student forms to ensure the indication of nonbinary gender is available for the 2018-2019 school year. The California Department of Education, in its guidance on AB 1266, states, “when a school district receives documentation that a legal name or gender has been changed, the district must update the student’s official record accordingly.” This would apply to all official student records including a gender designation, including but not limited to enrollment and registrations forms, IEPs, 504 plans, report cards, and transcripts. Districts should also contact their electronic student information system providers to ensure electronic systems are updated accordingly in advance of the 2018-2019 school year.

If you have any questions about the implementation of SB 179, please contact the authors of this Client News Brief or 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

Sarah L. Garica

Partner

Joshua Whiteside

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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2018 Updates: Annual Notice of Parental Rights and Responsibilities

March 2018
Number 12

California school districts and county offices of education are required annually, at the beginning of each school year, to provide written notice of parental rights and responsibilities. Lozano Smith continuously tracks legislation impacting these notices. The following summarizes changes in California law that call for required or optional updates to the Annual Notice of Parental Rights and Responsibilities.

Children of Military Service Members – Residency

Previously, the law only allowed military families to register their children for school on a preliminary basis in the California school district in which their military base was located. Senate Bill (SB) 455 amended Education Code section 48204.3 to allow all active duty military families to enroll their children in the school district where they will be living, instead of the school district where the military base is located, so long as they provide proof of residency within 10 days of the prescribed date of the Permanent Change of Station order. (See 2017 Client News Brief No. 77.)

Children of Active Duty Military – Graduation and Coursework Requirements

Assembly Bill (AB) 365 amended Education Code sections 51225.1 and 51225.2 to give students living in the household of a parent who is an active duty member of the military the same rights related to exemptions from coursework and graduation requirements currently available to foster youth, homeless students, and former juvenile court school students. Currently, Education Code sections 51225.1 and 51225.2 provide that students in foster care, who are homeless, or were former juvenile court school students, who transfer between schools any time after the completion of their second year of high school, are exempt from district-level requirements for graduation above those set by the state. Complaints of noncompliance may be filed under the local education agency’s (LEA’s) Uniform Complaint Procedures. (See 2017 Client News Brief No. 77.)

Residency Retention for Students Whose Parents are Detained or Deported

SB 257 added Education Code section 48204.4, which now allows students whose parents have been detained or deported to retain residency in a school district, regardless of the students’ current residency, when certain conditions are met. (See 2017 Client News Brief No. 64.)

Immigration Enforcement – “Know Your Rights”

Assembly Bill (AB) 699 added Education Code section 234.7, which requires LEAs to provide parents and guardians, as appropriate, information regarding the right to a free public education, regardless of immigration status. This must include information relating to immigrants’ rights posted on the Attorney General’s website and may be provided in the annual notice or by any other cost-effectivemeans determined by the LEA. (See 2017 Client News Brief No. 64.)

Discrimination Based on Immigration Status

AB 699 also amended Education Code sections 200, 220, and 234.1 to prohibit discrimination based on immigration status. Annual notice anti-discrimination provisions and Uniform Complaint Procedures provisions will require updates to include immigration status as a protected classification. (See 2017 Client News Brief No. 64.)

Juvenile Court Students – Graduation Requirements and Continuing Education Options

AB 1124 amended Education Code section 48645.3 and added Education Code section 48645.7. Under these changes to the law, a student who is in a juvenile detention facility may defer the granting of a diploma until he or she is released. Then, upon release, it allows the student to decline the issuance of a diploma for the purpose of enrolling in a school operated by an LEA or charter school to take additional coursework. The bill also allows complaints of noncompliance to be filed with LEAs. LEAs are also required to include such information regarding the availability of the complaint process in their annual notice.

Employee Codes of Conduct – Interactions with Students

AB 500 added Education Code section 44050, which applies to LEAs that maintain a written employee code of conduct that includes a section on employee interactions with students.

As of January 1, 2018, LEAs must post, if applicable, the section of their employee code of conduct on employee interactions with students or provide a link to it on each of its schools’ websites. If an LEA’s schools do not have their own websites, it may be posted on the LEA’s website. Additionally, starting on July 1, 2018, LEAs must provide a written copy of this section to parents and guardians at the beginning of each school year. This requirement may be satisfied by including the section on employee interactions with students in the annual notice.

California High School Exit Examination (CAHSEE)

AB 830 eliminated the CAHSEE, so references to the CAHSEE should be removed from the annual notice.

Lozano Smith regularly reviews and updates annual notices for LEAs around the state. Such revisions involve either an update to the prior year’s annual notice to account for changes in the law within the past year, or a more comprehensive review to ensure that updates resulting from changes in the law over the past several years and changes in an LEA’s own policies and practices that impact the annual notice’s content are current. If you are interested in any of the annual review services that Lozano Smith provides, please contact the authors of this Client News brief or 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:

Claudia P. Weaver

Partner

Mary Gates-Casey

Senior 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.

Vanquishing “Vaping” on Campus

March 2018
Number 11

This article originally appeared on the Association of California School Administrators’ ACSA Resource Hub.

School administrators are facing a growing threat to student health that is often disguised as a standard school tool. JUULs are a type of vaporizing device-commonly referred to as “vapes”-that is soaring in popularity among young people.

The use of vapes, JUULs, and similar products is extremely prevalent among high school students, creating a new generation of nicotine users and “smokers” after years of successful programs aimed at reducing teen smoking. Every day in high schools across the United States, the use of electronic cigarettes is common and occurs on school grounds undetected by school staff.

Vapes and electronic cigarettes have become increasingly discreet and available in an array of enticing flavors. Some vapes now resemble regular pens, making them more difficult for teachers and administrators to notice and confiscate. The JUUL resembles a USB stick, and its small size allows it to fit into the palm of a hand.

Tobacco products have been banned from school campuses for decades, but some vapes can use flavored vapor without nicotine or tobacco. These devices can also be used for the ingestion of marijuana and related substances. Devices used for these purposes are often called “wax pens” or “dab pens” and are also small and easily pass undetected.

Can schools ban these devices or discipline students for using them on campus? The answer to both of these questions is “yes.”

Applicable Laws

As e-cigarette and vaping technologies have developed, this industry has fortunately not left the law in a cloud of smoke. California’s laws have been broadened to ban JUULs and every other type of vaporizing device from schools. California Health and Safety Code section 104420, subdivision (n) was amended in 2016 to require any school receiving state funding to have a policy that prohibits “electronic cigarettes that can deliver nicotine and non-nicotine vaporized solutions.” Thus, even e-cigarettes or vapes that contain only flavored vape are prohibited from school grounds.

Education Code section 48901 was also amended in 2016, to prohibit smoking and tobacco products on campus and at school events. It defines “smoking” and “tobacco products” as they are defined in Business and Professions Code section 22950.5. The latter code section’s definition of “smoking” includes “the use of an electronic smoking device that creates an aerosol or vapor, in any manner or in any form,” while its definition of “tobacco product”
includes “[a]n electronic device that delivers nicotine or other vaporized liquids.”

Yes, Districts Can Discipline

As discussed above, vapes and e-cigarettes-even those containing only flavored vapor- are banned from school campuses and school events to the same extent as tobacco products. Under existing California law, school districts can discipline students in possession of non-nicotine vapes or e-cigarettes in the same way they discipline students using or in possession of cigarettes.

What Should We Do?

There are a few key things schools and school districts can do to fight the use of vapes and e-cigarettes on campus and also, the health threat they pose to students.

1.Revise board policies to specifically prohibit vaping and related devices.

2.Develop programs to educate students on the dangers of vapes and JUULs.

3.Train staff to recognize the use of vapes and JUULs at school.

4.Provide information and communication to parents about these devices and their prohibition at school.

For more information about addressing JUULs and vaping technology on campus, please contact the authors of this Client News brief or 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:

Michelle L. Cannon

Partner

Alyssa R. Bivins

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.

Charter Schools Must Obtain Separate Approvals for New Schools, Renewals, and Revisions, Court Rules

March 2018
Number 10

A California appellate court has published a decision affirming that charter schools must obtain separate approvals for new initial petitions, charter renewals, and material revisions to charter school petitions. InToday’s Fresh Start Charter School v. Inglewood Unified School District, et al. (Feb. 7, 2018, Case No. B280986) ___ Cal.App.5th ___, the Second District Court of Appeal issued a published decision, concluding that:

(1) Charter schools may not use a renewal petition to add a charter school location not previously authorized by its initial petition; and

(2) A material revision to a charter school’s initial petition is not deemed approved by combining with a renewal petition that became authorized by the chartering authority’s failure to act on the renewal petition within the statutory 60-day limit.

Lozano Smith’s litigation team of Erin M. Hamor, Megan Macy, and Sloan R. Simmons supported the California School Boards Association’s Education Legal Alliance by filing an amicus curiae brief in support of the Inglewood Unified School District.

Background

Today’s Fresh Start Charter School submitted a renewal petition to its authorizer, the Inglewood Unified School District-entitled “Renewal Petition and Material Revision”-seeking renewal of its existing charter and proposing to add a new charter school facility outside the boundaries of the district. When the district failed to act on the renewal petition within the statutory 60-day limit, the charter school argued that both the renewal petition and the material revision to approve the new location had been approved by operation of law. The Court of Appeal rejected the charter school’s argument and fully affirmed the judgment of the trial court.

Throughout the opinion, the court highlighted the three distinct categories where a charter school must seek approval of its chartering school district: (1) initial petitions for establishment of a charter school; (2) petitions to renew an existing charter; and (3) petitions for approval of a material revision to an existing charter. The court emphasized that each type of petition is governed by a separate set of requirements and timelines. As a result, when a charter school location has not previously been approved under an initial petition, the material revision process is the appropriate mechanism to add the new location.

Takeaways

This case is important for charter school authorizers because it re-emphasizes that the three separate categories of charter school petitions-initial approval, renewal, and approval of a material revision-should be treated separately according to their distinct processes, even if presented in a combined petition.

This decision also makes clear that charter schools may not use renewal petitions to circumvent geographic location requirements of the Charter Schools Act-a practice some charter authorizers report has been on therise.

For more information about this case or about charter schools in general, please contact the authors of this Client News brief or an attorney at one of our eight offices located statewide. You can also visit ourwebsite, follow us onFacebook orTwitter or download our Client News Brief App.

Written by:

Edward J. Sklar

Partner

Ryan. P Tung

Associate

Alyse Pacheco

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.

Immigration Enforcement Actions in California

March 2018
Number 9

In recent weeks, media outlets have reported on immigration raids by U.S. Immigration and Customs Enforcement (ICE) agents that targeted various areas in California. These raids have focused on the Bay Area, Los Angeles, and Sacramento areas. Other reports have confirmed ICE agents raiding dozens of 7-Eleven stores throughout the nation, and serving notices of inspection at 77 Northern California businesses within San Francisco, San Jose, and Sacramento.

As these enforcement actions continue, there are various policies and laws that school districts should keep in mind:

  • ICE’s Sensitive Locations Policy: School districts should note that ICE’s Sensitive Locations Policy, which is designed to ensure that enforcement actions generally do not occur at sensitive locations such as schools, remains in effect.
  • Assembly Bill (AB) 699: This bill provides a number of new supports for immigrant families; requires the California Attorney General to create model policies that address ICE requests to access school sites and for information about students or their family members; and requires schools to provide “Know Your Rights” information to parents. ( See 2017 Client News Brief No. 64.)
  • Senate Bill (SB) 54:SB 54 prohibits state and local law enforcement agencies, including school police and security departments, from assisting immigration enforcement in any way. (See 2017 Client News Brief No. 75.)
  • Senate Bill 257: New Education Code section 48204.4 permits students to meet district residency requirements for enrollment when: (1) the student’s parent or guardian has departed California against his or her will, and the student can provide official documentation evidencing the departure; and (2) the student moved outside of California as a result of his or her parent leaving the state against his or her will, and the student lived in California immediately before moving outside the state. The student must provide evidence of enrollment at a public school in California immediately before moving outside of the state. (See 2017 Client News Brief No. 64.)

All of these new state statutes took effect January 1, 2018.

Takeaways

School districts should consider obtaining updates to student emergency contact information, and to prepare for possible situations where students are left stranded at school because a parent has been detained by ICE. Under AB 699, a school should not contact Child Protective Services (CPS) to assist students whose parents have been detained on immigration charges until it has exhausted all other avenues to ensure the care of the student. Schools may wish to assist families with planning ahead by holding a public event or sharing resources to educate families. Such an event or resources may include steps in developing an effective emergency plan and information pertaining to the creation of a caregiver’s authorization affidavit, which would allow a caregiver to make certain school and medical decisions on behalf of a student whose parent or guardian has been detained or deported.

Lozano Smith can provide additional guidance on these and other immigration-related issues for our school and community college district clients. If you are interested in receiving additional guidance or have any questions regarding immigration enforcement on school campuses, 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

Manuel F. Martinez

Partner

Kristy J. Boyes

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.

When Politics and Walkouts Come to the Workplace: Considerations for Teachers, Superintendents, and Governing Boards

March 2018
Number 8

The February 14 mass shooting at Marjory Stoneman Douglas High School has inspired a groundswell of political activism at K-12 schools across the country. Lozano Smith previously reported on considerations and implications of student activism surrounding this issue. (See 2018 Client News Brief No. 7.) School districts must also consider if and how to regulate and respond to employee speech surrounding the gun control debate and other controversial topics. Additionally, governing boards should consider the legal and political implications of engaging in speech on these types of hot-button issues.

Public schools face a difficult balancing act: how to preserve government neutrality and an employee’s First Amendment rights while fulfilling their core mission of education. Similarly, a public employer’s response to employee speech and activism is highly dependent on specific facts, and may take various forms.

Governing Board Speech Rights

School boards may take political positions, as long as they do not support a candidate or ballot measure. Individual board members may also make political statements, as long as they identify their expression as reflecting a personal viewpoint, and not the viewpoint of the governing board. Aside from any legal issues, taking a position on a controversial topic could result in both positive and negative reactions from the local community. Alternatively or in addition to taking a position on a topic of concern, governing boards can facilitate discussions about local solutions to serious problems like school safety in order to engage the staff, students, parents, and stakeholders without alienating the community.

Superintendent Speech Rights

Like board members, superintendents also should identify when they are speaking on a political issue in their personal capacity or in their capacity as a representative of the district. Boards may also direct the superintendent to make public statements on an issue on their behalf. However, a superintendent should be wary of taking a position on any controversial matter without clear direction from the board.

Teachers’ Speech Rights

Any analysis of restrictions on teachers’ political activities and speech depends on several considerations. As a general rule, schools cannot discipline or penalize teachers based on political speech or activities outside of work. However, there are exceptions when a teacher is speaking as a public school employee rather than as a private citizen. Analyzing political statements or activities in the workplace is more complex.

Limited First Amendment free speech protections apply to political statements in the workplace. The U.S. Supreme Court held inGarcetti v. Ceballos that public employees do not have First Amendment protections when making statements pursuant to their official duties. In a case before the Seventh Circuit Court of Appeals,Mayer v. Monroe County Community School Corp., the court held that a public school teacher was not entitled to share personal political viewpoints during a classroom session on current events, as the teacher’s viewpoint departed from the curriculum adopted by the school system. Many school districts have board policies regarding controversial issues.

Teachers also may not walk out of the classroom during on-duty time. Public employees have no right to abandon their work for political purposes. However, during off-duty periods like lunch breaks, public employees generally can engage in political expression subject to certain exceptions based on the location and manner of the speech.

Another potential form of speech is a “sick-out” among employees. This occurs when more employees than usual take sick leave to make a political statement. Sick-outs implicate a number of employment-related First Amendment and collective bargaining issues. Like student walkouts, districts must respond to the conduct, rather than the statement, at issue. Public employers generally cannot discipline employees for engaging in speech or conduct protected by the Constitution. In a case concerning a sick-out to protest school funding concerns, a Michigan court held that speech promoting or encouraging a sick-out was protected by the First Amendment, and not a call to strike.

Districts should prepare contingency plans for days when a large number of teachers is expected to be absent to ensure proper staffing levels. Schools can also work with their labor partners, student protest leaders, and other parties to anticipate concerns and staffing impacts of walkouts or sick-outs. Moreover, districts can refer to their collective bargaining agreements for information about how to verify sick leave absences for their employees.

With the exception for board or board-authorized speech noted above, public agencies themselves should generally refrain from adopting political stances. Public resources, including services, supplies or equipment, cannot be used to support or condemn a particular ballot measure or candidate, and students and employees must be treated equally no matter their political opinion. This holds true in the classroom, where discussion of current events (and associated opinions) is inevitable. Teachers can facilitate a discussion, but insertion of a teacher’s personal opinions is inappropriate. For example, offering extra credit or encouraging attendance at a pro-gun control rally would also be official support for a particular viewpoint, and improper. However, encouraging students to attend political rallies or events irrespective of the subject matter or viewpoint is viewpoint-neutral, and may be consistent with some curricula.

Lozano Smith is prepared to help school districts navigate options and responses tailored to the specific needs and concerns of their particular school community.

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:

Dulcinea A. Grantham

Partner

Gabriela D. Flowers

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.