2017 Annual Notice of Parental Rights and Responsibilities Updates

April 2017
Number 21

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 inCalifornia law requiring updates for the 2017-2018 annual notice.

Excused Absence to Attend Student’s Naturalization Ceremony

Assembly Bill (AB) 1593 amended Education Code section 48205, adding a student’s attendance at their naturalization ceremony to the list of authorized excused absences, which is statutorily required to be included in the annual notice. (Ed. Code, § 48980, subd. (a).) (See 2016 Client News Brief No. 48.)

Residency for Children of Military Service Members

Senate Bill (SB) 1455 provides that a student complies with a school district’s residency requirements for school attendance if the student’s parent is transferred or is pending transfer to a military installation within the boundaries of the school district while on active military duty pursuant to an official military order. In such circumstances, districts must accept applications by electronic means for enrollment, including enrollment in a specific school or program within the district, and for course registration. In this situation, the parent must provide proof of residency within 10 days after the published arrival date provided on official documentation. This annual notice provision only applies to school districts that have military installations within their boundaries. (Ed. Code, §§ 48204.3, 48980, subd. (h).) (See 2016 Client News Brief No. 70.)

Graduation Requirements for Former Juvenile Court School Students/Student’s Right to File a Uniform Complaint

AB 2306 amended Education Code section 51225.2 to enable former juvenile court school students, who have transferred into a school district from a juvenile court school after their second year of high school, to earn their high school diplomas more quickly. School districts and county offices must exempt these students from local graduation requirements that exceed state requirements and grant such students credit for courses taken while in juvenile court school. AB 2306 also allows juvenile court school students
to file complaints of noncompliance under the school district or county office’s Uniform Complaint Procedures. This change in the law impacts annual notice requirements relative to the Uniform Complaint Procedures. (See 2016 Client News Brief No. 70.)

Transfer of Student Convicted of a Violent Felony or Misdemeanor

SB 1343 allows school district governing boards to adopt a policy to transfer students who have been convicted of violent felonies and designated misdemeanors to another school within the district, if the offending student and the victim of the crime are enrolled at the same school and if certain requirements are satisfied. If a school district adopts such a policy, it must include notice of the policy in its annual notice. This provision applies to school districts, but not to county offices. (Ed. Code, §§ 48929 and 48980, subd. (n).)

Cal Grant Program/Student Opt-Out Deadlines

AB 2908 enacted new deadlines for students and parents and guardians to opt out of the Cal Grant program. Districts must now give written notice annually, by January 1, to 11th graders and to their parents, that students will be automatically deemed Cal Grant applicants unless the student, or the student’s parent or guardian if the student is a minor, opts out by a deadline, which may not be less than 30 days from the date of the notice. (Ed. Code, § 69432.9, subd. (d)(1).)

Anti-Seizure Medication Administration

Former Education Code section 49414.7 allowed the parents of students with epilepsy who have been prescribed an emergency anti-seizure medication to request that their child’s school have one or more of its employees receive voluntary training in the event that their child suffers a seizure when a nurse is not available. Although Education Code section 49414.7 was repealed by its own terms on January 1, 2017, parents still have the right to request assistance with the administration of medication, including prescribed emergency anti-seizure medication, to their children under Education Code section 49423. Parents must provide their written authorization and a note from a physician, surgeon or physician’s assistant with instructions for administering the medication. Districts and county offices of education should contact their legal counsel regarding whether these developments and the current state of the law on this subject require revision to their annual notice.

Language Acquisition Programs

California voters approved Proposition 58 in November 2016. This proposition repealed most of Proposition 227, the “English in Public Schools” ballot initiative, which generally required English learners to be taught in English and restricted the use of bilingual programs. Under Proposition 58, schools are no longer required to teach English learners in English-only programs, and may use a variety of programs, including bilingual programs, to teach their English learners.

Effective July 1, 2017, Education Code section 310 will require that when the parents or guardians of 30 or more students in a school, or the parents or guardians of 20 or more students in any grade level at a school, request a language acquisition program, the school must offer the language acquisition program to the extent possible once various requirements are met, such as the program having been established with parental, school employee and community input.

If a district implements a language acquisition program pursuant to Education Code section 310, parents and guardians must receive notice, either as part of the school district’s annual notice or upon enrollment, containing a description of the types of language acquisition programs available to district students. This notice requirement takes effect on July 1, 2017.

We recommend that school districts and county offices of education review and update as necessary their annual notices of parental rights and responsibilities each year. Lozano Smith regularly assists in updating annual notices. For questions regarding any of the required changes discussed above, or annual notice requirements or review in general, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Mary Gates

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.

Meet-and-Confer Requirement Does Not Apply to Pension Reform Measure Placed on Ballot through Voter Initiative Process

April 2017
Number 20

In Boling v. Public Employment Relations Board (Apr. 11, 2017, D069626) ___ Cal.App.4th ___ (Boling), the Fourth District Court of Appeal invalidated a decision by the Public Employment Relations Board (PERB) holding that a city council violated the Meyers-Milias-Brown Act (MMBA) by placing a voter initiative to amend the city’s charter on the ballot without first meeting and conferring with the unions representing affected city employees. In doing so, the court rejected PERB’s reasoning that the mayor’s public support of the initiative effectively transformed it from a voter initiative to a city council-sponsored ballot proposal subject to meet-and-confer requirements.

This case addresses a longstanding issue. In a 1984 case, People ex rel. Seal Beach Police Officers Assn. v City of Seal Beach, the California Supreme Court concluded that a charter amendment proposed by a governing body is subject to the MMBA’s requirements, but cautioned that the case did “not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative.” Three decades after Seal Beach, a California appellate court has addressed that question for the first time.

The Boling case traces back to a City of San Diego decision on an issue that rarely evades controversy: public employee pension plans. In 2010, the city’s mayor and a city councilmember separately announced plans to replace the city’s existing defined benefit pension plans with 401(k)-style defined contribution plans for new hires. Ultimately, supporters of the mayor’s proposal and of the city councilmember’s competing proposal joined forces to produce an initiative to adopt a charter amendment mandating changes to pension plans for new hires.

The California Constitution provides two options for proposing an amendment to a city charter: an initiative qualified for the ballot through signed voter petitions, or a ballot measure sponsored by the governing body of the city. Rather than pursuing a ballot measure sponsored by the San Diego City Council (City Council), which the mayor believed the City Council would not place on the ballot “under any circumstances,” he launched a citizens’ initiative for his pension reform proposal. The parties to the case never disputed the fact that the mayor and his staff assisted in drafting the proposal and in campaigning for the citizens’ initiative.

In the summer of 2011, proponents of the proposal circulated a voter petition to place the initiative on the ballot. Meanwhile, a municipal employees’ union wrote to the mayor and asserted that the MMBA required the city to meet and confer over the initiative before it could be placed on the ballot. The city disagreed and refused to do so. In November 2011, the county’s registrar of voters reviewed and certified the petition. Subsequently, the City Council passed a resolution of its intention to put the measure on the ballot.

In January 2012, the union filed an unfair practice charge. Other unions followed suit. Later that month, the City Council enacted an ordinance placing the initiative on the June 2012 ballot. Shortly thereafter, PERB issued a complaint against the city and ordered an expedited administrative hearing. PERB also filed a superior court action seeking a preliminary injunction to bar the city from putting the initiative on the ballot. The trial court denied PERB’s request for an injunction and the voters overwhelmingly approved the initiative in June 2012.

However, the proceedings before PERB continued and the case went to a hearing in July 2012. At the conclusion of the PERB hearing, the administrative law judge (ALJ) issued a proposed decision determining that the mayor, acting under the color of his elected office and with support of councilmembers and the city attorney, violated the MMBA by denying the unions the opportunity to meet and confer over the mayor’s decision to launch and pursue the initiative. The ALJ further determined that since the mayor was an agent of the city, and because the city ratified the mayor’s policy decision, the obligation to meet and confer extended to the city. PERB agreed and issued a decision consistent with the ALJ’s proposed decision.

The city and the initiative’s proponents filed separate petitions for writs of extraordinary relief with the Fourth District Court of Appeal challenging PERB’s decision, which the Court of Appeal consolidated for purposes of its decision.

The Court of Appeal disagreed with PERB’s conclusions and determined that the MMBA’s meet-and-confer requirement does not apply when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process. Instead, only a governing body-sponsored proposal willtrigger the meet-and-confer requirement.

Central to the court’s analysis was the principle that procedural requirements that govern city council action generally do not apply to citizen-sponsored initiatives. Unlike a charter amendment proposed by a city council, a voter-initiated charter amendment proposal must be placed on the ballot; the city council has no discretion to decide otherwise. (Elec. Code, § 9255.) In contrast, a city council’s vote to adopt a ballot proposal for submission to its voters is discretionary and is thus subject to certain procedural constraints, including the requirement to negotiate. Moreover, the court reasoned, the MMBA’s meet-and-confer provisions expressly refer to “governing body” proposals, which a voter initiative is not.

The court further determined that PERB erred when it applied legal theories regarding principal-agent relationships to transform the initiative from a citizen-sponsored initiative into a governing body-sponsored ballot proposal, even given the mayor’s role in developing and supporting the initiative. This was in part because under the express language of the city’s charter, the mayor had no authority to place a City Council-sponsored ballot proposal on the ballot without City Council approval, and there were no indicators that he obtained such approval. The court also rejected PERB’s arguments under the theories of apparent authority, respondeat superior, and ratification as legally erroneous.

This case resolves a major question regarding the balance of power between voter-driven initiatives and union collective bargaining rights, with the court deciding the issue in favor of the electoral process.

For more information on the Boling decision or a local government agency’s collective bargaining duties, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven A. Nunes

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.

Ninth Circuit Loosens Time Limits on IDEA Claims

April 2017
Number 19

In a case of first impression, the Ninth Circuit Court of Appeals has ruled in favor of looser time limits on Individuals with Disabilities Education Act (IDEA) claims. (Avila v. Spokane School District 81 (9th Cir.,
Mar. 30, 2017, No. 14-35965) ___ F.3d ___ < http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/ 30/14-35965.pdf>.) The Ninth Circuit’s ruling reversed a district court decision which held that some of the plaintiff parents’ claims were time-barred under a provision of the IDEA that establishes a two-year statute of limitationsbased on the date of a due process complaint.

In 2006, student G.A.’s parents requested that the Spokane School District 81 assess G.A. for special education services due to his behavior issues. The District found that G.A. did not qualify for special education services. In 2007, G.A. was diagnosed with Asperger’s disorder by a private physician and his parents asked the District to reassess him. In April 2008, the District’s psychologist found G.A. eligible for special education services under the category of autism and in February 2009, G.A.’s parents consented to an Individualized Educational Program (IEP). A year later, the District reassessed G.A. and developed another IEP. G.A.’s parents did not agree with the assessment report or the proposed IEP, and they asked the District for an independent educational evaluation (IEE). The District denied the request for an IEE and G.A.’s parents filed a request for due process hearing.

An administrative law judge (ALJ) ruled that the District’s reassessment was appropriate and that G.A.’s parents were not entitled to a publicly-funded IEE. The ALJ also ruled in favor of the District on nine procedural claims concerning the District’s alleged failure to give prior written notice and two substantive claims alleging that the District denied G.A. a free appropriate public education (FAPE) by failing to identify G.A. as a child with a disability in 2006 and failing to assess G.A. in areas of suspected disability in 2006 and 2007.

In so ruling, the ALJ determined that some of the parents’ claims were time-barred, reasoning that because their due process complaint was filed on April 26, 2010, any complaints regarding the District’s actions prior to April 26, 2008 were time-barred by a two-year statute of limitations based on the date of their due process complaint. G.A.’s parents appealed the ALJ’s decision to the district court, which affirmed the ALJ’s ruling, including the ruling regarding the IDEA’s two-year limitation on claims arising before April 26, 2008.

G.A.’s parents then appealed to the Ninth Circuit, arguing that the district court improperly applied the IDEA’s statute of limitations to their substantive claims. In addressing the issue regarding the statute of limitations, the Ninth Circuit noted that the IDEA has two conflicting sections regarding the statutory timeline to file for due process. Specifically, the provision found at 20 U.S.C. § 1415(b)(6)(B) allows parents to file a complaint for violations “that occurred not more than [two] years” before they knew or should have known about the actions that form the basis of their complaint. The second provision, 20 U.S.C. § 1415(f)(3)(C), requires a parent to file a due process complaint within two years of the date they knew or should have known about the underlying conduct. The Ninth Circuit observed that the first provision focuses more on the timing of the violation itself, while the second provision focuses more on the timing of the complaint. In an attempt to harmonize these two provisions, the court found that 20 U.S.C. § 1415(f)(3)(C), which focuses on the date of the discovery of the alleged IDEA violation, is controlling over the other IDEA provision. Thus, the Ninth Circuit remanded the case back to the district court for a determination of when G.A.’s parents actually discovered the alleged violation of the IDEA.

The Ninth Circuit’s interpretation of the IDEA means that parents must file for a due process hearing within two years of the date that they knew or should have known about the alleged action that formed the basis of their complaint. According to this decision, claims are not limited to two years preceding the date of the filing of a due process complaint. This is important for districts to keep in mind because the application of this decision means there is no “automatic” two-year bar of claims based upon the date of the filing of a due process complaint.

For more information on the Avila case or IDEA claims in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Gutierrez

Partner

Michelle Truong

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 Court Holds Discrimination on the Basis of Sexual Orientation is Prohibited under Title VII

April 2017
Number 18

In Hively v. Ivy Tech Community College of Indiana (7th Cir., April 14, 2017, No. 15-1720) ___ F.3d ___ < http://media.ca7.uscourts.gov/cgi-bin/rssExec.pl?Submit =Display&Path=Y2017/
D04-04/C:15-1720:J:Wood:aut:T:fnOp:N:1942256:S:0
>, a federal appeals court evaluated whether federal antidiscrimination laws protect an individual against discrimination on the basis of sexual orientation under Title VII (42 U.S.C. § 2000e-2(a)). In a landmark decision, the court held that under Title VII, such discrimination is unlawful.

Kimberly Hively was an openly lesbian adjunct professor at Ivy Tech Community College (Ivy Tech). After unsuccessfully applying for at least six full-time positions between 2009 and 2014, and after her part-time contract was not renewed in July 2014, Hively initiated legal action against Ivy Tech alleging that she was discriminated against based on her sexual orientation in violation of Title VII. Ivy Tech filed a motion to dismiss for failure to state a claim, arguing that sexual orientation is not a protected class under Title VII. The district court agreed with Ivy Tech and dismissed the complaint, and Hively appealed.

On appeal, the circuit court was not asked to determine if Ivy Tech had actually discriminated against Hively in its decision not to hire her as a full-time professor or in its failure to renew her part-time contract. Instead, the court was tasked with addressing the scope of sex discrimination under Title VII. The court held there is no difference between a claim based on sexual orientation and those cases finding sex discrimination due to gender nonconformity, such as women not getting jobs typically held by men. The court said that “a policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex.”

The court also evaluated Hively’s claim under the theory of discrimination by association, which prohibits discriminating against an individual based on the characteristics of someone with whom they associate. These characteristics include sex, race, color, national origin and religion. In association discrimination, an individual would not be suffering the adverse action had the trait in question been different for one person in the relationship (male instead of female, for example). The court analyzed this issue by using the history of interracial marriage cases to show that discrimination based on those with whom one associates is not limited to race, but is also prohibited on the basis of sex. “The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that endeavored to find and observe that line,” the court said.

While this is a groundbreaking decision under federal law, California’s Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) already explicitly prohibits employment discrimination on the basis of sexual orientation in this state. Nevertheless, this case is important because it reflects a possible shift in the federal courts’ treatment and view of employment discrimination based on sex by expanding the scope of prohibited discrimination.

It remains to be seen whether this case will be taken up to the United States Supreme Court and, if so, whether review will be granted. Lozano Smith will be closely tracking this decision for any subsequent action or associated federal legislation.

For more information on the Hively decision or anti-discrimination law in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Gabriela D. Flowers

Senior Counsel

Janae D. Lopes

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.

IDEA Procedural Requirements Warrant a Second Look After Recent Ninth Circuit Decision

April 2017
Number 17

The Ninth Circuit Court of Appeals recently issued a decision inM.C. v. Antelope Valley Union High Sch. Dist. (9th Cir., Mar. 27, 2017, No. 14-56344) ___ F.3d ___ [2017 U.S.App. LEXIS 5347] that expanded procedural requirements in special education cases and opened the door for parents to add issues during a special education due process hearing. This decision appears to shift the balance in favor of parents’ attorneys throughout California and other Ninth Circuit states.

In Antelope Valley, the student suffered from a genetic disorder resulting in blindness and “a host of other deficits.” His parent filed for a due process hearing, taking issue with the school district’s Individualized Educational Program (IEP) documentation of “teacher of visually impaired” (TVI) services offered, the IEP’s omission of the types of assistive technology (AT) devices offered, and the lack of a 10-day response to the parent’s due process complaint, among other things. The Individuals with Disabilities Education Act (IDEA), the federal law governing special education, guarantees students with disabilities a free, appropriate public education (FAPE) and requires procedural and substantive compliance when crafting an IEP for a special education student.

Although the school district prevailed in the due process hearing and at the district court level, the Ninth Circuit overturned those decisions. In ultimately determining that the student was the prevailing party entitled to an award of attorney’s fees with regard to the most recent appeal, the Ninth Circuit came to a number of additional conclusions primed to impact those who serve special education students, while also remanding the case back to the district court for additional proceedings. The issues of note are summarized below.

Adequacy of Due Process Hearing Decision

First, the Ninth Circuit examined its standard of review of special education cases. The court decided that the duration of a due process hearing, the administrative law judge’s (ALJ) active involvement in a hearing and the length of an ALJ’s opinion issued did not necessarily determine that a “thorough and careful” fact finding had occurred. Even though the ALJ in the parties’ three-day due process hearing had questioned witnesses and wrote a detailed 21-page opinion, the Ninth Circuit found that “no thorough and careful” fact finding had occurred because the ALJ had disregarded evidence and failed to address all issues. As a result, the Ninth Circuit reviewed the entire case anew, based on the evidence in the record from the underlying due process matter.

Typographical Errors in IEP Documents and the IEP as a Contract

Second, the court concluded that a typographical error constituted a denial of FAPE, even though the error had resulted in no substantive loss of services. After the parent consented to the student’s IEP, the school district realized that it had inadvertently written in the IEP 240 minutes of TVI services per month instead of the agreed-upon frequency of per week. The school district provided at least 240 minutes of TVI services per week. The school district corrected the IEP a month later, but the parent first learned of the correction during the due process hearing. The Ninth Circuit determined that although no substantive harm may have occurred with the student receiving additional minutes of TVI services, the parent nonetheless suffered procedural harm because the mistakes necessitated the parent incurring legal fees to determine the actual level of services provided. This constituted a form of prejudice denying educational benefit.

In reaching this conclusion, the Ninth Circuit also ruled that “an IEP is a contract,” and that making a unilateral amendment is legally impermissible. When the school district in this case learned that the IEP did not reflect
the IEP team’s agreement, it was required to notify the parent and seek consent for amendment. “Absent such consent, the District was bound by the IEP as written unless it sought to re-open the IEP process and proposed a different IEP,” the court said. The “unilateral amendment” to the IEP was deemed a “per se procedural violation of the IDEA because it vitiate[d] the parents’ right to participate at every step of the IEP drafting process.”

Moreover, the court ruled that a unilateral IEP correction may serve as grounds for sanctions. Whether the school district had engaged in “mere bungling” or had deliberately attempted to mislead the parent by inaccurately recording the offer of FAPE must now be determined by the district court on remand. If it is the latter, the district court is ordered to impose sanctions on the school district sufficiently severe to deter any future such misconduct.

Monitoring and Enforcement of IEP as Part of Parental Participation

The court also concluded that the IDEA provides parents a right to participate in every step of the IEP drafting process, which includes IEP monitoring and enforcement. Although the parent had participated in drafting the student’s IEP, the typographical error obfuscated her knowledge of the actual offer made, and without knowing the actual offer, she could not adequately use the IEP to monitor and enforce the services provided. This constituted another procedural violation of the IDEA. Likewise, even though the IEP team discussed the types of AT devices offered, the school district’s failure to provide that discussion in writing “rendered the IEP useless as a blueprint for enforcement.” Thus, the failure to identify the AT devices in the IEP was an additional violation.

Shifting of Burden of Proof at Due Process Hearing

The court additionally held that failing to make a clear offer of FAPE can impact a party’s burden of proof in a due process hearing. The party alleging an IDEA violation typically bears the burden of proving that the services received did not amount to FAPE. Here, the court held that when procedural violations prevent parents from knowing the kind or duration of IEP services offered, it is impossible for them to assess the substantive reasonableness of those services, so the burden of proof must shift to the school district, even if it has not initiated the due process hearing.

Penalties for Failure to Provide Responses to Due Process Complaints

In addition, Antelope Valley has created significant penalties for school districts that fail to provide a timely 10-day response to a parent’s due process complaint. The court held that in such circumstances an ALJ must not go forward with the hearing but instead order the school district to provide a response, and “shift the cost of the delay” to the school district, regardless of the ultimate prevailing party.Antelope Valley makes it clear that a school district has an obligation to commit to a position within the first 10 days after a complaint is filed. In order for the Office of Administrative Hearings (OAH) to enforce this ruling, school districts must now provide OAH with a copy of the district’s response to the complaint.

Issues to be Tried at Due Process Hearing

Finally, after this decision, a party’s failure to object to an ALJ’s restatement of the issues will not be deemed a waiver of any issue “arguably encompassed in a due process complaint.” In this case, the school district argued that the parent had waived the issue of adequate TVI services because although alleged in the due process complaint, the ALJ had not included the issue in the subsequent framing of issues for hearing. The district court agreed, but the Ninth Circuit extended the concept that “issues are treated as if they were raised in the complaint if they are tried by consent” to the IDEA context, so as to find no waiver. In doing so, the Ninth Circuit admitted that “[w]hile we haven’t previously recognized this practice in IDEA cases, it’s often been applied in a variety of other agency adjudications … We see no reason IDEA cases should be treated differently.” Effectively, this means that any issue addressed at hearing without objection could be seen as “tried by consent,” regardless of whether it is memorialized in any statement of issues.

Antelope Valley greatly expands and shifts school district obligations. It reminds those serving special education students of the need to accurately and clearly record in an IEP the offer of FAPE made, to communicate with the parents regarding monitoring and enforcement of the IEP, and to timely respond to due process hearing requests, among other things. If it is not challenged in an expanded Ninth Circuit review or an appeal to the United States Supreme Court, this case will likely alter special education legal processes in California and the rest of the Ninth Circuit for the foreseeable future.

For more information on the Antelope Valley decision, IEP drafting, responses to due process hearing requests or special education law in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roxana R. Khan

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.

Ninth Circuit Reverses Summary Judgment, Finding Employer’s Response to Discrimination and Harassment Complaints Inadequate

April 2017
Number 16

In Reynaga v. Roseburg Forest Products (9th Cir. 2017) 847 F.3d 678, the Ninth Circuit Court of Appeals recently delivered an important opinion regarding public entity employers and what is required for an appropriate response to an employee’s complaint of harassment or hostile work environment. In doing so, the Ninth Circuit emphasized that employer liability may exist for negligence, if the employer fails to take effective remedial action in response to such an employee complaint.

In Reynaga, plaintiff Efrain Reynaga and his son worked as millwrights for defendant Roseburg Forest Products. The plaintiffs were the only millwrights of Mexican descent. Reynaga alleged that his supervisor, Timothy Branaugh, made repeated and constant racially derogatory statements, such as “we should close the borders to keep mother****ers like you from coming up here,” claiming “minorities are taking over the country,” and asking “are all Mexican women fat?” Reynaga also alleged that he was treated differently than his Caucasian coworkers on multiple, specific occasions, and retaliated against for filing a written complaint alleging hostile work environment.

Reynaga subsequently submitted a written complaint alleging harassment and discrimination by Branaugh. The employer hired an outside investigator to conduct an investigation into Reynaga’s complaint. In the course of the investigation, Reynaga was interviewed and he recounted Branaugh’s race-based statements. When the investigator requested a follow-up interview with Reynaga, Reynaga initially stated that he would only participate if he had counsel. Later, Reynaga agreed to participate without counsel, but the employer never followed up. On the basis of the investigation, the employer rearranged Branaugh’s schedule so that he would not be on the same shift as Reynaga.

Shortly after the investigation was completed, Branaugh left a printed email in the breakroom containing an article that claimed former President Barack Obama was an illegal alien and that “our borders are like sieves.” Reynaga read the email and described feeling “very concerned about the racial hostility and harassment at work.”

A few days later, on January 9, 2010, Reynaga and his son arrived at work for their shift. Upon discovering that Branaugh was also on site, Reynaga and his son immediately left the premises. Reynaga’s son notified the employer about Branaugh’s presence on the same shift and stated, “[w]e will not work in a hostile work environment. We will report to our shift on … Wednesday [January 13]… [u]nless we hear otherwise.” On Wednesday, January 13, 2010, when they arrived to work, plaintiffs were asked to meet with the Defendant’s human resources manager, Dan Johnson. Johnson told plaintiffs that Branaugh had been directed to have no contact with them absent an mergency. Johnson directed Reynaga and his son to do the same, and asked them if they would complete their shift that day while Branaugh remained on site. Reynaga and his son responded that they would not work with Branaugh. As a result, they were suspended “pending the conclusion of the investigation.” Five days later, Reynaga received a letter explaining that he was discharged for walking off the job on January 9, 2010 and refusing to work on January 13, 2010.

Thereafter, based upon these events, Reynaga filed a complaint in the United States District Court alleging claims for: (1) hostile work environment, including employer liability through negligence; (2) disparate treatment with regard to his discharge; and (3) retaliation related to his discharge. While the district court granted summary judgment in the defendant employer’s favor, the Ninth Circuit reversed, finding that Reynaga had presented sufficient facts to move forward with these claims.

As to Reynaga’s hostile work environment claim, the court held that a factual dispute remained as to whether: (1) the unwelcome race based conduct described above was “sufficiently severe or pervasive to alter the conditions of the Reynaga’s employment and create an abusive work environment”; and (2) whether the defendant employer, once apprised of Branaugh’s behavior, was liable for the hostile work environment claim through its negligence in failing to take adequate remedial action. The Ninth Circuit thus held that Branaugh’s repeated racist comments and Reynaga’s statements that he felt physically threatened at work met the “sufficiently severe or pervasive” test.

Significantly, the Ninth Circuit held that a reasonable trier of fact could find Reynaga’s employer liable for negligence as to Reynaga’s hostile work environment claim. Specifically, a fact finder could conclude that the employer “knew, or should have known, about the harassment, and failed to take prompt and effective remedial action.” Reynaga’s employer knew of Branaugh’s misconduct, however, the employer never formally disciplined Branaugh, despite multiple complaints about his behavior. Instead, the court found that the employer merely “coached” Branaugh with platitudes, such as “I hope you learn from your mistakes. Don’t do it again,” and “you can make people uncomfortable.” The court found this in sharp contrast to firing Reynaga for “walking off” the job and refusing to work with Branaugh. In effect, the defendant employer conditioned Reynaga’s continued employment on his willingness to work with a coworker who had a proven history of repeatedly harassing him based on race and national origin.

Additionally, evidence existed that the employer never contacted Reynaga to complete his follow-up interview during the investigation and that it treated Reynaga differently from his Caucasian coworkers. Based on the employer’s failure to discipline Branaugh or to implement effective remedial procedures to deter Branaugh’s continued harassment, the Ninth Circuit held that a reasonable trier of fact could reasonably find the employer liable for hostile work environment based on its negligence: “[w]hen the employer undertakes no remedy, or where the remedy does not end the current harassment and deter future harassment, liability attaches for both the past harassment and any future harassment.”

As to Reynaga’s disparate treatment claim, the court held that there was sufficient evidence to give rise to an inference of discrimination based on the employer’s treatment of two Caucasian employees, which was more favorable than the employer’s treatment of Reynaga. As to Reynaga’s retaliation claim, the court determined that he had a “strong” case based on temporal proximity: Reynaga had worked for the employer for over five years but the employer fired him barely one month after making a formal written complaint against Branaugh.

The important takeaway from this case for employers is that it is crucial to promptly and thoroughly investigate an employee’s complaint, and to take effective remedial measures to deter future misconduct. Such remedial measures may include avoiding contact between a complainant and the offending party (such as through reassignment, rescheduling shifts, etc.) and issuing disciplinary action sufficient to deter the offending party. Failure to implement effective remedial measures may result in employer liability for a hostile work environment on a theory of negligence.

For more information on the Reynaga decision or an employer’s duty to respond to employee harassment or hostile work environment complaints, please contact the authors of this Client News Brief or an attorney at one
of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Meera H. Bhatt

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.

State Board of Education Adopts Waiver Policy for Unlawfully Located Nonclassroom-based Charter Schools

April 2017
Number 15

The State Board of Education (State Board) recently approved Policy No. 17-01 (Policy), which permits the board to issue temporary waivers to nonclassroom-based charter schools operating “resource centers” outside the geographical boundaries of their chartering school district. The State Board’s decision comes on the heels of a closely watched charter school decision, Anderson Union High School District v. Shasta Secondary Home School
(2016) 4 Cal.App.5th 262 (Anderson), which became binding law in California on January 18, 2017 ( see 2017 Client News Brief No. 5 ). The holding in Anderson confirmed that the geographic and site limitations of the Act are applicable to all charter schools, including nonclassroom-based programs.

The Anderson decision left some nonclassroom-based charter schools scrambling to bring facilities operating outside the boundaries of their authorizing school district into compliance with the law. In order to minimize disruption to pupils and educational programs, the Policy sets forth a process to determine whether charter schools will be granted a one-year waiver from compliance with the geographic restrictions of the law. All schools granted a waiver must become fully compliant no later than June 30, 2018.

Charter schools themselves may not apply directly for waivers with the State Board. The authorizing school district must seek the waiver on the charter school’s behalf. The charter school will be required to create a transition plan detailing how its resource center will come into compliance with Anderson, and submit a copy of the plan to the State Board and all impacted school districts where the noncompliant facilities are located. A charter school must also give parents regular status updates regarding transition. The Policy is set to expire on November 10, 2017, although the State Board did not preclude review of subsequent waiver requests on a case-by-case basis.

The State Board emphasized that the Policy should not be viewed as an amnesty for charter schools operating noncompliant facilities. Rather, all noncompliant schools must take immediate steps to comply with the law as clarified by Anderson. We encourage school districts and county offices of education impacted by this Policy to work closely with legal counsel to evaluate potential solutions, including providing feedback on individual waivers that come before the State Board. Over 40 waivers are slated for review at the May 2017 State Board meeting, with more anticipated at future meetings.

For more information on State Board of Education Policy No. 17-01, theAnderson opinion or the Charter Schools Act, please contact the authors of this Client News Brief or an attorney in Lozano Smith’s Charter School Practice Group or at one of our nine offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download our Client News Brief App.

Written by:

Megan Macy

Senior Counsel

Erin Hamor

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.