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.

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.

California Supreme Court says Minors’ Claims against Public Agencies Must Adhere to Government Claims Act Timelines

April 2017
Number 14

In J.M. v. Huntington Beach Union High School District (Mar. 6, 2017, No. S230510) ___ Cal.5th ___ 2017 [Cal. LEXIS 1609] < http://www.courts.ca.gov/ opinions/documents/S230510.PDF >, the California Supreme Court determined a high school football player was not entitled to court relief for his personal injury claim against a school district because he failed to strictly comply with the timelines spelled out in the California Government Claims Act (Act), often referred to as the Tort Claims Act.

This holding illustrates the consequences of failing to strictly comply with the procedural requirements for bringing claims against government entities. As the Court held, no additional recourse is available to a minor who does not petition for superior court relief within the six-month timeframe set by the Act.

J.M., a minor who attended the Huntington Beach Union High School District, received concussion injuries while playing in a high school football game. J.M. did not file a government claim against the District within the six month statute of limitations period on his tort claim. After almost a year had passed since the date of his injury, J.M. retained counsel who submitted an application with the District to file a late claim. The District did not take action on the late claim application, and the claim was denied by operation of law 45 days after it was presented.

After nearly one year had passed, J.M.’s attorney petitioned the superior court for relief from the Act’s claim filing requirements. Both the trial court and the Court of Appeal rejected the claim, holding that J.M. did not file his petition for court relief within six months from the date the claim was deemed denied by the District, as required by the Act. In affirming the decision, the California Supreme Court also disapproved a contrary appellate court ruling in E.M. v. Los Angeles Unified School Dist. (2011) 194 Cal.App.4th 736.

The Act, as set forth in Government Code sections 810 et seq., generally requires that claims for money or damages against a public entity must be presented in writing to the public entity prior to filing a lawsuit in court. A tort claim must be filed with the public entity within six months of the accrual of the claim. However, the Act permits a minor to submit an application for permission to file a late claim up to one year after expiration of the claims period. If a public entity does not take affirmative action to respond to the late claim within 45 days, the application is denied by operation of law, and the applicant may seek relief by filing a petition in court within six months.

In J.M., the plaintiff claimed that he was not obligated to comply with the Act’s requirement that he petition the court within six months from the date the District was deemed to have denied his late claim application, arguing that the Act required the District to grant late applications if the applicant was a minor during the entire claims period, and that he was therefore entitled to relief. The Court rejected this argument, finding that it was J.M.’s responsibility to timely seek relief in court from the District’s denial of his late claim application, even if the District was required to grant it.

In finding that J.M.’s claim was time barred, the Court reversed a contrary holding in E.M., under which J.M. would have been entitled to relief. The minor in that case did not file a petition for relief in court
until more than six months had passed since her late claim application was rejected. The appellate court in E.M. found the plaintiff’s untimely petition for relief was irrelevant because plaintiff had satisfied the technical requirements of the Act when she made a timely application to file a late claim with the entity. The Supreme Court in J.M. rejected this holding, finding that strict adherence to the Act’s timelines for filing a petition for relief was required, and no additional recourse was available to a plaintiff who failed to petition the court within six months of a denial of a late claim application.

The Court also dismissed J.M.’s claim that he was entitled to relief based upon the District’s failure to provide him with written notice of its deemed denial of his late claim application. The Court found that while the Act required written notice of a claim that is deemed denied by an entity’s inaction, the Legislature did not include the same notice requirement for an agency’s failure to act upon a late claim application.

For more information on the Supreme Court’s decision or on application of the Government Claims Act 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 orTwitter or download our Client News Brief App.

Written by:

Penelope R. Glover

Senior Counsel

Niki Nabavi Nouri

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 Education Agencies Now Prohibited from Collecting Social Security Numbers

March 2017
Number 13

Armed with the understanding that Social Security numbers are the piece of information most used by criminals perpetrating identity thefts, the California legislature has barred local education agencies from collecting them.

Effective January 1, 2017, Assembly Bill (AB) 2097 modified section 56601 of the Education Code to prohibit school districts, county offices of education and charter schools from collecting or soliciting Social Security numbers or the last four digits of Social Security numbers from pupils or their parents or guardians. Prior to the law’s effective date, Education Code section 56601 authorized the Superintendent of Public Instruction to collect and use the Social Security numbers of individuals with exceptional needs as student identification numbers in order to assist the state in evaluating the effectiveness of special education programs.

AB 2097 was a direct response to issues raised inMorgan Hill Concerned Parents Ass’n v. Cal. Dep’t of Educ. (E.D. Cal., No. 2:11-cv-3471) (Morgan Hill), a case brought by parent groups who claimed the state systematically failed to provide disabled children with a free and appropriate public education. ( See 2016 Client News Brief No. 12.) During the discovery process in Morgan Hill, the court issued an order requiring the California Department of Education (CDE) to release student data relating to as many as 10 million current and past public school students. The data was presumed to include sensitive information, such as student Social Security numbers. Some of the central concerns raised by parents in response to this order were the security of their children’s information and the possibility of identity theft.

AB 2097 repealed Education Code section 56601’s authorization to collect and use Social Security numbers in conjunction with special education programs and requires the Superintendent of Public Instruction to instead assign and use student identification numbers, commencing with the 2017-18 fiscal year and phased in over a two-year period. AB 2097 also added section 49076.7 to the Education Code to implement a broad prohibition on local educational agencies from collecting or soliciting Social Security numbers or their last four digits from pupils or their parents or guardians in any program, unless otherwise required to do so by state or federal law. Going even further, AB 2097 authorizes the CDE to create additional restrictions on the collection and solicitation of other personally identifiable information.

This new law should not only alert public agencies to the risks of and prohibitions against requesting Social Security numbers, but should serve as a reminder that public agencies should review and update non-complying forms and processes.

The newly added Education Code section 49076.7 declares that pupil data privacy is a priority because students are at risk of identity theft when providing their Social Security numbers to local educational agencies. It cites to a technical brief published by the United States Department of Education (DOE) in 2010, “ Data Stewardship: Managing Personally Identifiable Information in Electronic Student Education Records.” Through its brief, the DOE provides guidance and “best practices” regarding the ongoing management of electronic data collection, processing, storage, maintenance and use of student records. It addresses data stewardship at all levels of governance, ranging from the state department of education to individual schools. Resources like this may be invaluable to public agencies as they assess their current practices and vulnerabilities.

Data governance and stewardship in the public sector are becoming increasingly important as public sector agencies continue to transition from the use and storage of paper records to electronic and online data. For educational agencies, this transition has raised concerns about the storage and release of sensitive and confidential student information because the laws and regulations governing student records have been slower to evolve than the technology used to electronically collect, use and store the data.

To better protect electronic data maintained by public sector agencies, as well as the agencies themselves, Lozano Smith’s Technology & Innovation Practice Group is committed to working with its clients in order to refine
and develop their data policies and practices. If you have any questions about AB 2097 or any other issues related to student privacy or data protection, please contact the authors of this Client News Brief or an attorney in our
Technology & Innovation Practice Group or 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:

Amanda E. Ruiz

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 Clarifies Educational Progress Standard for Students in Special Education

March 2017
Number 12

In a much anticipated decision, a unanimous United States Supreme Court has ruled that under the Individuals with Disabilities Education Act (IDEA), Individualized Education Programs (IEPs) must be reasonably calculated to enable a child with a disability to make appropriate educational progress in light of the child’s circumstances. (Endrew F. v. Douglas County Sch. Dist. RE-1 (March 22, 2017, No. 15-827) ___ U.S. ___ <https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf&gt;.) The high court vacated and remanded a Tenth Circuit Court of Appeals ruling that set the standard for providing a free, appropriate public education (FAPE) to children with disabilities under the IDEA as requiring “merely more than de minimis” educational progress.

Endrew F. is a child with autism who attended school within the Douglas County (Colo.) School District from preschool through fourth grade. When the child’s IEP team met to discuss his IEP for his fifth grade year, his parents contended the new IEP was substantially similar to his fourth grade IEP and the same goals were generally carried over from year to year. They argued this meant he was not making appropriate progress and enrolled him in a private school for students with autism. The private school created a behavior intervention plan and new academic goals and he achieved significant progress there.

The child’s parents later filed a complaint against the school district alleging a failure to provide a FAPE. An administrative law judge, a federal district court and the appellate court all found the IEP was reasonably calculated for the child to make some progress, defined as “merely more than de minimis.” The Supreme Court then grantedreview.

Foundational to the Supreme Court’s opinion is an acknowledgement ofBoard of Education v. Rowley (1982) 458 U.S. 176, the landmark ruling that established the existence of a substantive standard for FAPE. Refusing to adopt an “equal opportunity” standard inRowley, the Supreme Court required “some” educational benefit but declined to adopt a single measure of adequacy. Upholding Rowley and relying on the statutory language of the IDEA, the Supreme Court inEndrew F. found that in order for a school district to provide a FAPE under the IDEA, an IEP must be reasonably calculated to enable a child to make appropriate educational progress in light of the child’s circumstances and that sufficient progress means exceeding “merely more than de minimis.”

The Supreme Court reasoned that this standard “should come as no surprise” considering the IDEA’s many references to individuality, includingspecially designed instruction, unique needs of a child, and even individualized education program. While declining to establish a bright-line rule regarding what constitutes “appropriate” progress, the Supreme Court held that FAPE necessitates designing a program which allows a student to “‘advance appropriately toward attaining the annual goals’ and, when possible, ‘be involved in and make progress in the general education curriculum'” as statutorily required. “[F]or most children [that] will involve integration in the regular classroom and individualized special education calculated to achieve advancement from grade to grade. If that is not a reasonable prospect for a child, his IEP need not aim for grade level advancement,” the Court added. “But his educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom.”

California special education decisions have long applied a standard similar to the one advanced by the Supreme Court in Endrew F. Ninth Circuit decisions have historically interchanged “some educational benefit,” “educational benefit” and “meaningful educational benefit” when applying the Rowley standard to require something meaningful for a particular child. Office of Administrative Hearings decisions frequently cite to Second, Fourth and Eighth Circuit authority holding that FAPE requires progress commensurate with ability, which appears consistent with the standard offered by the Supreme Court. As such, this new iteration of the Rowley standard may have limited impact in California. However, the practical examples outlined in the decision, including issues related to least restrictive analysis, grade level standards and advancement, goal revision, and the instruction that staff be prepared to explain how programs are designed to offer progress appropriate in light of circumstance, should be thoroughly considered by California school districts moving forward.

For more information on Endrew F. or its impact on the development of IEPs and offers of FAPE, 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:

Sarah L. Garcia

Partner

Colleen R. Villareal

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.