California Passes New Laws to Protect Student-Athletes AED’s Required by July 1, 2019

February 2019
Number 13

In the wake of several high profile deaths of high school student-athletes, California recently enacted two new laws aimed at improving school responses to heart and heat-related emergencies involving students.

Assembly Bill (AB) 2009

Given that sudden cardiac arrest (SCA) is a leading cause of death among young athletes, AB 2009 requires school districts and charter schools that offer interscholastic athletics to have written, posted emergency action plans in place and to acquire at least one automated external defibrillator (AED) for each school.

Between 2009 and 2011, 42 young athletes died in California as a result of their participation in athletics. Nineteen of those deaths were attributed to SCA. Studies cited by the American Heart Association have shown that, if defibrillated within the first minute of collapse, an SCA victim’s chances of survival are close to 90%, decreasing by 7% to 10% for each additional minute that passes. After 10 minutes, the rate of survival among adults is less than 5%.

Virtually every coach in California is already trained in the use of AEDs, but currently only 75% to 80% of high schools have an AED, many of which are not available to athletic personnel in the afternoon. Beginning onJuly 1, 2019, school districts and charter schools will need to ensure that each school in the district has at least one AED, and are encouraged to make the devices available to render emergency care or treatment to pupils, spectators, or other attendees within the recommended three to five minutes. Again, while schools are encouraged in this regard, they are required to ensure that AEDs are available to trainers and coaches at on-campus athletic events and during athletic instruction.

AB 2009 requires schools to ensure that their AEDs are maintained and regularly tested according to operation and maintenance guidelines set forth by the manufacturer, the American Heart Association, Red Cross, and the FDA. AB 2009 also further extends the general exception from civil liability afforded to those who reasonably attempt to render aid by using an AED, to school districts, charter schools and their employees.

Assembly Bill 2800

According to the Centers for Disease Control, heat illness during athletic practice or competition is also a medical risk and cause of death for student-athletes. This health risk is higher for student athletes participating in high-intensity and long-duration or repeated same-day sports practices during the summer months. It has been reported that between 1995 and 2014, 42 high school football players died of exertional heat stroke nationwide, with two California students passing away from heat illness last year alone.

Assembly Bill 2800 adds heat illness awareness to the California High School Coaching Education and Training Program. Existing law declares the Legislature’s intent that interscholastic athletic coaches should receive training on a number of topics, including coaching philosophies, sports psychology and physiology, CPR and first aid certification, and the signs, symptoms, and appropriate response to concussions. Prior to AB 2800, training in the areas of heat illness and heat stroke was not required.

AB 2800 adds a basic understanding of the signs and symptoms of, and appropriate responses to, heat illness, to the High School Coaching Education and Training Program. Separate from AB 2800, for those secondary schools which are members of the California Interscholastic Federation (CIF), CIF bylaws require training for any coach who is required to be fingerprinted and/or is approved by their local school board or board of directors to have contact with students, and such CIF training certification requirements include training related to concussions, SCA, and heat acclimatization. AB 2800’s heat illness training requirements may be fulfilled through, including but not limited to, CIF coach training certification, or by entities offering free, online, or other types of training courses.

Takeaways

School districts and charter schools that offer athletic programs must obtain at least one AED, and create or update a written emergency action plan which describes procedures to be followed in the event of medical emergencies related to athletic activities or events. The written plan should be posted, at a minimum, at all venues and be easily accessible to anyone involved in carrying out the plan. In addition, school districts and charter schools should review existing policies and procedures regarding training requirements for athletic coaches to ensure that coaches are appropriately trained on identifying and responding to symptoms of heat illness.

For more information on these bills or any other legislation, 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:

Thomas E. Gauthier

Partner

Kyle A. Raney

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.

Lay Opinions May Trigger The Need For An Environmental Impact Report

February 2019
Number 12

A California appellate court has ruled that lay public opinions on nontechnical issues concerning a project’s size and general appearance can provide substantial evidence of environmental impact, triggering the need to prepare an environmental impact report (EIR) under the California Environmental Quality Act (CEQA).

The California Environmental Quality Act

CEQA generally requires public agencies to identify potentially significant impacts of projects they carry out or approve, and mitigate those impacts where feasible. Unless a project is exempt from CEQA, the public agency must prepare one of three types of documents. A negative declaration (ND) can be prepared where there is no substantial evidence that the project may have a significant effect on the environment, and a mitigated negative declaration (MND) can be prepared where the project has potentially significant environmental effects, but these effects will be reduced to insignificance by mitigation measures. An EIR, however, is required whenever substantial evidence in the record supports a “fair argument” that the project may produce significant impacts or effects. An EIR generally involves more time and often more cost than an ND or MND.

Georgetown Preservation Society v. County of El Dorado

The Third District Court of Appeal filed its decision inGeorgetown Preservation Society v. County of El Dorado (2018) 30 Cal.App5th 358, on December 17, 2018, affirming the trial court’s writ setting aside El Dorado County’s (County) approval of a project based on an MND. The County had prepared an initial study to analyze the environmental impacts of a proposed Dollar General chain discount store (Project) and found that there was no basis to require an EIR. Local residents acting through plaintiff Georgetown Preservation Society (Society) objected, claiming that the Project would impair the aesthetic character of their town. The Project was located in a historic center and several lay opinions were submitted by the local community, which commented that the Project was
too big and too boxy and would damage the look and feel of the town, and would therefore have significant and negative effects related to aesthetics. The County slightly modified the project and ultimately adopted the MND. In part, it found that the project complied with local zoning because the area was zoned for commercial retail, that the Project’s design, architectural treatments, and associated improvements substantially conform to the County’s Historic Design Guide and, that the Project would not substantially detract from the town’s historic commercial district.

The Society filed a lawsuit seeking to require the County to prepare an EIR. The trial court applied prior case law and found that the Society’s evidence supported a fair argument that the Project may have a significant aesthetic effect on the environment. Accordingly, the trial court issued a writ of mandate compelling the County to prepare an EIR.

On appeal, the County relied on the fact that it had applied its Historical Design Guide principles when it found the project met aesthetic standards. In the County’s view, the ensuing finding of compliance with its Historical Design Guide principles could not be disputed by lay opinion evidence. A key issue addressed by the Court of Appeal was whether non-expert factual evidence or lay opinion evidence proffered by area residents can support a “fair argument” that the Project may have a significant aesthetic impact on the environment. In reaching its decision, the Court of Appeal followed the rationale in Pocket Protectors v. City of Sacramento (2004) 124 Cal.App.4th 903, and held that (1) consistency with local design guidelines could not be used to insulate a project from CEQA review; (2) lay opinions can provide substantial evidence to support a “fair argument” that a project may have a significant aesthetic impact on the environment, triggering the need to prepare an EIR; and (3) since the County made no credibility determinations, it could not categorically disregard the
public’s comments.

Takeaways

Georgetown Preservation Society serves as a reminder of the impact public opinion may have on projects approved or carried out by public agencies, and that lead agencies should not disregard public opinion in non-technical areas like aesthetics. Previous court decisions have also considered lay opinions in other impact areas such as noise, traffic safety, and parking. Therefore, lead agencies should not solely rely on its industry experts when evaluating the environmental impacts of a project. If the community members’ opinions on these issues are not properly taken into consideration, project delays and increases costs can result.

If you have any questions about the appellate court’s decision in Georgetown Preservation Society and its impact on CEQA compliance, or about the CEQA 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

Jose Montoya

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.

Settlement Addresses Discriminatory Treatment of Minority Students and Students with Disabilities

February 2019
Number 11

A settlement agreement was recently reached between the California Department of Justice (DOJ) and the Stockton Unified School District (District) to address discriminatory treatment of minority students and students with disabilities. The agreement resolves a comprehensive investigation conducted by the DOJ, which found that the District’s policies and practices with respect to law enforcement referrals discriminated against African-American and Latino students as well as students with disabilities.

According to the investigation, it identified certain practices by the District which led to students being criminalized for minor misconduct. These practices included:

  • Using law enforcement for minor disciplinary infractions that are more appropriately the responsibility of school administrators and teachers;
  • Operating a canine inspection program where canines were brought to school sites on a random and suspicionless basis and students were directed to leave their belongings in the classroom without their consent to be sniffed by canines. Though the District’s Board Policy included that students could not be required to leave their belongings, the investigation by the DOJ found that in practice, students had no choice;
  • School administrators conducting classroom-wide random, suspicionless pat-down searches of students’ persons;
  • Having law enforcement cite or book students for truancy or disturbing the peace violations;
  • School administrators not being properly trained in and utilizing de-escalation techniques for preventing student behavior that may lead to the use of physical restraints; and
  • Failing to ensure effective communication in the context of law enforcement investigations for students who are hard-of-hearing or deaf.

To address these concerns by the DOJ, the parties worked cooperatively to agree on an extensive five-year plan memorialized in a stipulated judgment that requires the District to create clear policies and procedures with respect to how and when school administrators refer students to law enforcement as well as a formal diversion program to address minor school-based criminal offenses which will minimize arrests, citations and bookings. A copy of the proposed judgment can be viewed here. The agreement also calls for the revision of policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, including hiring a disability coordinator at the police department that will ensure compliance with disability laws and creating a protocol for school site administrators to refer students who exhibit mental health indicators to services rather than to law enforcement. Additionally, the District agreed to train all officers (in this case, the officers were employees of the District’s Police Department) on crisis-intervention as well as provide extensive training on the constitutional and civil rights of all students. Lastly, the District agreed to track and analyze all arrests and referrals of students to law enforcement, and create a community advisory committee for oversight.

The takeaways from this agreement can be summarized as follows:

  • Districts should review their policies with respect to how and when school site administrators refer students to law enforcement and consider creating a diversion program for minor, school-based criminal offenses;
  • Districts should review their policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, and may consider hiring a trained disability coordinator to ensure compliance with disability laws;
  • Districts should review their current search and seizure policies to make sure they conform with current laws and constitutional standards.

For more content related to school safety and School Resource Officers, check out this episode of Lozano Smith’s podcast.

If you have any questions regarding this settlement agreement or student rights issues 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:

Manuel F. Martinez

Partner

Benjamin Brown

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.

Federal Agencies Withdraw Previously Issued Guidance On The Nondiscriminatory Administration Of School Discipline

February 2019
Number 9

The United States Department of Education’s Office for Civil Rights (OCR) and Department of Justice (DOJ) have withdrawn their 2014 joint Dear Colleague Letter (DCL) on Nondiscriminatory Administration of School Discipline, which provided recommendations and guidance on remediating disproportionate student discipline of minority and disabled students. The stated justification for the agencies’ reversal is that implementation of the 2014 DCL resulted in schools easing up on punishment for student misconduct and contributed to rising violence in the nation’s schools.

Background: 2014 DCL

In 2014, under the Obama administration, the non-binding discipline guidance DCL (See 2014 Client News Brief No. 7] was published pursuant to the OCR’s responsibilities for implementing Title VI of the Civil Rights Act of 1964 and the DOJ’s responsibilities for implementing Title IV of the Civil Rights Act of 1964, respectively. The stated goal of the 2014 DCL was to break or slow the cycle known as the school-to-prison pipeline, by prodding schools to reduce the number of suspensions and expulsions, especially for students of color and students with disabilities which data shows are disciplined at disproportionately high rates. The 2014 DCL set forth guidelines for measuring for disproportionality in the discipline of minority students and students with disabilities, and recommended practices for reducing or eliminating such disproportionality. The 2014 DCL also included instructions on how to “reduce disruption” without discriminating against students according to “personal characteristics,” as well as guidelines for designing school discipline-related policies and practices which emphasize alternatives to suspension and expulsion.

Guidance Withdrawn

In 2018, U.S. Department of Education Secretary Betsy DeVos led a new Federal Commission on School Safety, established after the deadly school shooting at Marjory Stoneman Douglas High School in Parkland, Florida. The new commission’s task was to study and make recommendations regarding several issues, including violence prevention strategies. On December 18, 2018, the commission recommended the rescission of the 2014 DCL, along with other associated documents, including:

The commission reasoned that states and local school districts should play the primary role in establishing educational policy, including how to handle specific instances of student misconduct and discipline, and ensuring that classroom teachers have the support they need to implement such local policies. OCR and the DOJ adopted the commission’s recommendations.

Takeaways

The rescission of the non-binding 2014 DCL and related federal guidance does not change any federal civil rights laws. It also does not change states’ or school districts’ obligation to administer school discipline in a non-discriminatory way, whether as a matter of federal or state law. School districts that continue to find value in the now-withdrawn guidance documents may continue to refer to and utilize that guidance and recommended policies and practices as they see fit.

If you have any questions about the guidance rescission, please contact the author 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

Marisa Montenegro

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.

Supreme Court To Decide Whether Local Agencies Can Recover Costs Associated With Redacting Video Footage Under The Public Records Act

February 2019
Number 8

Rarely are state and local government agencies permitted to charge for the labor that goes into responding to a California Public Records Act (CPRA) request. In National Lawyers Guild v. City of Hayward (2018) 27 Cal.App.5th 937, the First District Court of Appeal held that the City of Hayward was entitled to reimbursement of costs associated with necessary redactions of body camera footage to produce the non-exempt portions of footage requested under the CPRA. This case is now pending before the California Supreme Court, which will be deciding this case in light of the increased availability of law enforcement records under Senate Bill 1421. For more information on SB 1421, please see 2018 Client News Brief No. 60. The outcome of the Supreme Court’s decision will likely establish significant rules regarding the accessibility of public records in video
format.

Background

Historically, the bulk of the costs to comply with the CPRA are borne by the local agency. As technology advances and the ability to retain and access information advances with it, the cost of producing documents has increased in many cases. Under previous case law, public agencies were allowed to charge requestors for an extremely narrow subset of their direct costs. Under the Court of Appeal decision, the City of Hayward would have been able to recover “the City’s actual expenditures to produce a copy of the police body camera video recordings.” This rule would have represented a significant change in the scope of costs that can potentially be recovered. This rule is now on hold until the California Supreme Court decides the issue.

National Lawyers Guild v. City of Hayward

The National Lawyers Guild requested six hours of police body camera footage from a protest in the City of Hayward. In order to comply with the request, the City determined that it needed to purchase a special program to redact confidential sections of the footage, and asked the National Lawyers Guild to bear the cost of the software; this litigation ensued. In the end, the court required the National Lawyers Guild to pay for the costs associated with the redactions. The court explained that:

“For electronic records… the statute allows an agency to recover specified ancillary costs in either of two cases: (1) when it must “produce a copy of an electronic record” between “regularly scheduled intervals” of production, or (2) when compliance with the request for an electronic record ‘would require data compilation, extraction, or programming to produce the record.’ (§ 6253.9, subd. (b)(1), (2); see 88 Ops.Cal.Atty.Gen., supra, at p. 164.) Under those circumstances, the agency may charge the cost to construct a record, and the cost of programming and computer services necessary to produce a copy of the record. (§ 6253.9, subd. (b).)”

In reviewing the legislative history of the statute, the Court of Appeal reasoned that when an agency “must incur costs to acquire and utilize special computer programming…to extract exempt material from otherwise disclosable electronic public records” the public agency could be reimbursed. The court recognized that lawmakers made a special exemption for processing electronic records because the efforts needed to redact electronic records would greatly exceed those associated with paper records.

Interestingly, the court did not limit cost recovery to extracting exempt material but stated that allowable costs under Government Code section 6253.9, subdivision (b), include the “City’s actual expenditures to produce a copy of the police body camera video recordings” along with the ability to recover costs for extracting exempt material. If the Court of Appeal decision is allowed to stand, the court’s reasoning could theoretically be expanded to support the recovery of costs whenever an electronic record must be altered to comply with a request.

Takeaways

The decision by the Court of Appeal highlights the importance of informing requesting parties that they may be responsible for the costs associated with video footage, and to work out the terms of payment for such work before the redactions are made.

Pending the outcome of the California Supreme Court’s decision, agencies impacted by costly requests for electronic records in need of redaction should consult with legal counsel to evaluate potential cost recovery.

We will issue an update once this case is ultimately decided. If you have any questions about the National Lawyers Guild decision or the California Public Records Act 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:

Manuel F. Martinez

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.