California Attorney General Publishes Guide on the Rights of Undocumented Immigrant Students and Families

April 2018
Number 17

The California Attorney General’s Office (AG) has published a comprehensive guide and model policies to equip local educational agencies (LEAs) with information and resources for addressing immigration enforcement actions and also, hate crimes and bullying that target immigrants.

The guide is intended to serve as an instructional tool for LEAs in addressing increased U.S. Immigration and Customs Enforcement (ICE) activity and the impacts of the rescission of the Deferred Action for Childhood Arrivals (DACA) program. (See 2018 Client News Brief No. 9 and 2017 Client News Brief No. 57.) The model policies, which were mandated by Assembly Bill (AB) 699, are intended to serve as a template for LEAs to adopt.

AB 699 requires all school districts, county offices of education, and charter schools to adopt these model policies or equivalent policies by July 1, 2018. ( See 2017 Client News Brief No. 64.) The California School Boards Association has said it would review the model policies once they were made available, and Lozano Smith will monitor the association’s issuance of any new policies that may assist LEAs in complying with this new mandate.

According to the guide, which is titled “Promoting a Safe and Secure Learning Environment for All: Guidance and Model Policies to Assist California’s K-12 Schools in Responding to Immigration Issues,” an estimated 250,000 undocumented children between the ages of 3 and 17 are enrolled in California public schools, and an estimated 750,000 K-12 students in California have an undocumented parent.

The guide is broken down into the following five topics:

(1) Gathering and handling student and family information;

(2) Sharing student and family information;

(3) Responding to requests for access to school grounds for immigration enforcement purposes;

(4) Responding to the detention or deportation of a student’s family member; and

(5) Responding to hate crimes and bullying related to national origin or ethnicity.

Each topic area includes an outline of relevant state and federal protections for students and families, policy recommendations that the AG represents comply with state and federal laws regarding law enforcement actions at public schools, and model versions of the policies that LEAs must adopt by July 1.

The information that may have the most real-world application for LEAs is the guide’s content on responding to requests for access to schools grounds for immigration enforcement purposes. The guide provides LEAs with comprehensive instructions on how to train staff to handle immigration enforcement actions. Specifically, the AG provides guidance on who to notify if an immigration enforcement action takes place and what types of warrants, subpoenas, and court orders are generally used for immigration enforcement. Additionally, the guide recommends appropriate ways for LEAs to handle students whose parents have been detained in an immigration enforcement action.

In addition to providing model policies and an overview of relevant state and federal law, the guide provides a quick reference sheet for school officials; a “Know Your Education Rights” checklist for parents; and samples of federal search and seizure warrants, federal arrest warrants, Department of Homeland Security immigration enforcement subpoenas, and federal judicial subpoenas so that LEAs can be familiar with the different types of orders presented to them and knowledgeable about how they should proceed. The AG’s quick reference guide for school administrators and reference guide for familiesare available as separate documents.

Takeaways

LEAs should familiarize themselves with the AG’s guide for at least two reasons. First, AB 699 requires LEAs to adopt the AG’s policies or policies equivalent to the models in the guide on or by July 1. Second, the guide serves as a comprehensive legal guide to addressing student privacy issues in general while also providing specific, real-life scenarios related to ICE or other immigration-related actions.

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 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:

Sloan R. Simmons

Partner

Nicholas G. Felahi

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.

Advertisements

Court Confirms That Calculation of Level 1 Developer Fees for Apartment Buildings Includes Interior Common Areas

April 2018
Number 16

A California court has confirmed that school districts are authorized to assess Level 1 developer fees against interior common areas of apartment buildings, including hallways and walkways.

School districts have received pushback from developers regarding whether “assessable space” includes interior common areas. With its decision in 1901 First Street Owner, LLC v. Tustin Unified School District, the court has provided districts with legal authority for imposing fees on such space. The court expressly concluded that its analysis is specific to Level 1 developer fees, and not Level 2 or 3 developer fees, which receive separate statutory treatment in the Government Code.

Developer Fees in California Law

School districts are authorized to levy developer fees against residential construction within their boundaries to fund school facilities. Level 1 fees are charged per square foot of “assessable space,” including “all of the square footage within the perimeter of a residential structure.” (Gov. Code, § 65995.) The building department of the city or county issuing the building permit for residential construction is required to calculate Level 1 fees.

Background

In 1901 First Street Owner, LLC v. Tustin Unified School District, a developer of a residential apartment building challenged the city’s calculation of Level 1 developer fees to be paid to the Tustin Unified School District. The city excluded interior common areas from its initial fee calculation, but recalculated the fees when the District objected. The developer objected to this later fee calculation and filed suit.

The developer argued that only individual apartment units, and not interior common areas-including hallways, storage rooms, mechanical rooms, fitness centers, and lounges-could constitute “assessable space . . . within the perimeter of a residential structure” within the meaning of Government Code section 65995(b)(1). The developer relied on section 65995’s indication that a city or county should calculate the space within the perimeter of a structure based on the city’s or county’s “standard practice” for calculating perimeters, and claimed that the city was correct in excluding interior common areas in its calculation. Thus, the developer contended that the calculation of Level 1 fees should exclude interior common areas. The district disputed such exclusion, taking the position that that the city’s calculation correctly assessed the interior common areas along with the individual apartment units.

The court agreed with the district and confirmed that “assessable space” includes interior common areas. The court noted that the statute explicitly lists examples of exterior areas and notably excludes interior common areas from the list. Aside from walkways, the exterior areas listed were typically located at or near the periphery of a residential structure. Therefore, a “walkway” under the statute means an internal walkway and not an interior hallway.

Additionally, the court distinguished the meaning of “standard practice” under Government Code section 65995(b)(1) from the developer’s argument that the city’s “standard practice” was to exclude interior common areas from the calculation. The court stated that, under the statute, “standard practice” meant the city’s calculation of square footage “within the perimeter of a residential structure,” including interior common areas.

Takeaways

In an environment where courts have issued several developer-friendly decisions in recent years, this case can be viewed as good news for school districts. The results of 1901 First Street confirm the position taken by many of our school district clients that interior common areas are properly included in the calculation of Level 1 fees.

As of January 24, 2018, school districts may charge up to $3.79 per square foot of residential development. School districts should ensure that cities calculate Level 1 fees based on the square footage of both individual apartment units and interior common areas.

Lozano Smith’s Developer Fee Handbook addresses imposition of developer fees and related procedures. School districts that have not previously ordered the Handbook or need replacement or additional copies can order the Handbook here or by contacting Client Services at clientservices@lozanosmith.comor (800) 445-9430.

If you have any questions about the court’s ruling or about developer fees 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 our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Kelly M. Rem

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.

Local Agencies May Enact Presentation Requirements for Childhood Sexual Abuse Claims, Court Rules

April 2018
Number 15

The Fifth District Court of Appeal’s opinion in Big Oak Flat-Groveland Unified School District v. Superior Court holds, for the first time, that local agencies may enact local claims procedures under the Government Claims Act which require the submission of claims regarding childhood sexual abuse, despite the general exemption of such claims from the Government Claims Act’s claim presentation requirements and the more forgiving statute of limitations which apply to such claims under the Code of Civil Procedure.

Lozano Smith Litigation Practice GroupCo-Chair Sloan Simmons represented the California School Boards Association (CSBA) and CSBA’s Education Legal Alliance as amicus curiae in this case.

Background

The case involved an alleged childhood sexual abuse victim, Jane Doe, who attempted to sue a school district without first presenting a claim for damages. Childhood sexual abuse claims are exempt from the Government Claims Act’s claim presentation requirements, and based on this exemption, the plaintiff did not present a claim to the district before commencing her lawsuit. The district claimed the lawsuit was barred by the plaintiff’s failure to follow its local claim presentation policy, which the district said it was permitted to establish under a separate provision of the Act. The district argued that despite the Act’s exceptions under Government Code section 905, the plaintiff was still required to present a claim to the district due to the local policy adopted by the district under Government Code section 935.

The appellate court sided with the district, holding that local entities can prescribe their own presentation requirements for exempt claims as long as the local claim presentation period is no shorter than six months. Since the district maintained a local policy prescribing a presentation period of six months after accrual of the cause of action for all exempt claims and the plaintiff did not present her claim to the district within that time period, her suit was barred for failing to comply with the local requirements.

Takeaways

The court’s opinion affirms the underlying purpose for the Government Claims Act: allowing public entities to investigate and remedy harm before litigation ensues and to create internal protections that will prevent future harm. The opinion also serves the public policy that limited public resources should not be spent on litigation that could be avoided, and that public agencies make the best use of their limited resources when they can plan their budgets in advance.

Local public agencies should consider adopting local policies that address exempt claims. For school districts and county offices of education, CSBA’s model Board Policy and Administrative Regulation 3320 contain optional policy language on point. Lozano Smith’s Litigation Practice Group also offers its Government Claims Handbook as a resource for addressing claims under the Act.

The plaintiff in the case recently petitioned the California Supreme Court to review the appellate court’s opinion. The Supreme Court will determine whether to grant review in the coming months.

If you have any questions regarding theBig Oak Flat-Groveland Unified School District opinion, the Government Claims Act, or the adoption of local claim presentation requirements, 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:

©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.

Colleges Have a Duty to Warn or Protect Students from Foreseeable Violence

April 2018
Number 14

Colleges have a legal duty, under certain circumstances, to protect their students from or warn them about foreseeable violence in the classroom or during curricular activities, the California Supreme Court has ruled.

In The Regents of the University of California, et al., v. Superior Court of Los Angeles County, the Court considered whether colleges owe a duty of care to their students to protect them from or warn them about foreseeable violence. This question is critical to determining whether a college acted in a negligent manner when it failed to warn or protect students from foreseeable violence.

Negligence claims require the existence of an underlying duty of care owed the injured party. Where there is no duty of care on the college’s part, a college cannot be held liable for negligence.

Background

A student who displayed increasingly hallucinatory, erratic, and threatening behavior stabbed a fellow student during a chemistry lab. Over the course of that year, the university, which was aware of the student’s psychological issues, had moved him to a different dormitory and then a single room before expelling him from student housing. The university also provided counseling services, urged the student to submit to voluntary hospitalization, concluded he did not meet the criteria for an involuntary hold, and ordered him to return to counseling services. The members of the university’s consultation and response team monitored the student’s behavior and became increasingly concerned when he identified particular students as threats. The day before the stabbing the team scheduled a meeting with the student, but he failed to attend. The university did not otherwise protect or warn students regarding the potential threats.

The Court concluded that colleges have a duty to their students to warn or protect them from foreseeable harm, which arises from the special relationship that exists between the college and its students. The Court opined the college environment is unique. A college provides educational services and community, often at a point in students’ lives when they are learning to navigate the world as adults and are vulnerable and dependent on the college for a safe environment. Colleges have superior control over the environment and also, the ability to protect students by imposing rules, disciplining students, and employing resident advisers, mental health counselors, and campus police. There is also a limited community to whom the duty is owed, namely students and not the public at large. These characteristics all fit within the paradigm of a special relationship between the parties which establishes a duty to warn or protect from foreseeable harm.

A college’s duty to warn and protect students is limited, however, and extends only to activities where the college has some control. The Supreme Court concluded it is reasonable for students to expect that a college will provide some measure of safety in the classroom, and more broadly, in curricular activities.

The Court emphasized that the existence of a duty of care is not equivalent to liability, and that not all violence on campuses can be prevented. Colleges do have a duty to act with reasonable care, however, when aware of a foreseeable threat of violence in a curricular setting.

The Court did not provide any guidance regarding what a college must do to meet this duty of care. Having settled that colleges generally owe a limited duty of care to their students, the case was remanded to the Court of Appeal to determine whether the university had breached its duty of care in this case or was otherwise immune from liability. Thus, whether the university’s response failed to meet its duty to warn or protect, and guidance on what the university should have done and when, remains to be determined by the Court of Appeal.

Takeaways

If community college employees acting within the scope of their employment become aware of student behavioral issues that could rise to the level of foreseeable harm, there is a duty of care which may result in liability if the community college fails to warn or protect students. Community colleges should ensure there are communication channels in place to alert employees responsible for assessing and responding to threatening behavior, and should also review their behavioral intervention protocols.

Though Regents is specific to the college environment, a court could adopt a similar viewpoint toward a school district and its minor students. For more specific analysis in the school district context, contact legal counsel.

If you have any questions about this case or about community colleges’ or school districts’ duty of care to students 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 our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Michelle C. Cannon

Partner

Carrie M. Rasmussen

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.