Two New Laws Add Duties Regarding Student Sexual Harassment Policies And Domestic Violence Resource Information

November 2019
Number 71

The Governor has signed legislation that promotes student safety by providing additional resources for combating sexual harassment and domestic violence.

Assembly Bill (AB) 543: Student Sexual Harassment Policy Posters

Starting January 1, 2020, schools serving grades 9-12 must create and display posters that notify students of the school’s student sexual harassment policy. AB 543 requires that the posters be age appropriate, culturally relevant, no smaller than 8.5 by 11 inches, in at least 12-point font, and displayed in English and in any primary language spoken by 15 percent or more of the students enrolled at the school. Schools may partner with local, state, or federal agencies, or nonprofit organizations to design and create the poster. AB 543 applies to school districts, county offices of education and charter schools.

The posters must include, at a minimum: (1) the procedures and contact information of the appropriate schoolsite official for reporting sexual harassment; (2) the rights of the reporting student, complainant, and respondent; and (3) the schoolsite’s responsibilities under the policy.

The posters must be displayed prominently and conspicuously in each schoolsite bathroom and locker room. The governing board has full discretion to select other appropriate locations where it may choose to display the posters, such as in classrooms, hallways, gymnasiums, and cafeterias.

Currently, California educational institutions are required to display their sexual harassment policies in prominent campus locations where similar notices are posted, and copies must be distributed to parents at the beginning of the school year and as part of any orientation program for new students. Under AB 543, the policy must also be provided as part of any orientation program for new or continuing students at the beginning of each quarter, semester or summer session, as applicable.

Senate Bill (SB) 316: Student Identification Cards – Domestic Violence Hotline

Currently, the telephone number for the National Suicide Prevention Lifeline must be included on student identification cards issued by public schools, including charter schools, and private schools serving students in any of grades 7 to 12, and public and private colleges and universities that issue student identification cards. (See 2018 Client News Brief Number 78.) The Crisis Text Line, and a local suicide prevention hotline phone number may also be included. Colleges and universities may also include the campus police or security phone numbers, if applicable, or the local nonemergency phone number.

Beginning October 1, 2020, SB 316 requires schools serving students in any of grades 7 to 12, that issue student identification cards, to also print the telephone number for the National Domestic Violence Hotline, 1-800-799-7233, on either side of their student identification cards.

Similarly, commencing October 1, 2020, public and private colleges and universities that issue student identification cards must have printed on either side of their student identification cards the National Domestic Violence Hotline number or a local domestic violence hotline that provides confidential support services by telephone 24 hours a day.

These new requirements apply when student identification cards are issued for the first time or when lost or damaged cards are replaced.

Schools and colleges that have a supply of unissued student identification cards as of January 1, 2020, that do not include the new information, must continue to issue those identification cards until that supply is depleted.

It is worth noting that Assembly Bill 624 proposed that a sexual assault hotline number also be included on student identification cards, but this proposed act was vetoed by the Governor.

These new laws both take effect on January 1, 2020, and that is the date by which the student sexual harassment policy poster requirements under AB 543 must be implemented. October 1, 2020, is the deadline for carrying out SB 316’s new student identification card requirements.

If you have questions regarding fulfilling these new obligations or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 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.

New Laws Promote Student Safety: Bullying, Harassment, And Suicide Prevention

November 2019
Number 70

The Governor has signed legislation that promotes student safety by providing additional resources for suicide prevention and combating bullying and sexual harassment.

Assembly Bill (AB) 1767: Suicide Prevention Policies for Kindergarten and Elementary School Students

Currently, local educational agencies serving students in grades 7-12 are required to have adopted student suicide prevention policies pertaining specifically to students in those grades. AB 1767 amends Education Code section 215 to expand the requirement for the adoption of suicide prevention policies to local educational agencies serving students in kindergarten and grades 1-6.

Before the beginning of the 2020-2021 school year, governing boards of local educational agencies serving elementary school students, must adopt, at a regularly scheduled meeting, a suicide prevention policy for their K-6th graders. The policy must be age appropriate, and delivered and discussed in a manner that is sensitive to the needs of young students.

A policy pertaining to K-6th graders must be developed in consultation with school and community stakeholders, the county mental health plan, school-employed mental health professionals, and suicide prevention experts. The policy must address suicide prevention, intervention and postvention, and ensure coordination with the county mental health plan if a referral is made on behalf of a student who is a Medi-Cal beneficiary.

Suicide prevention policies applicable to any grade span must be reviewed and, if necessary, updated, at least every five years.

AB 34: Bullying, Discrimination, Harassment, and Suicide Prevention Website Information

Also, commencing with the 2020-2021 school year, local educational agencies will be required to provide specified bullying, discrimination, harassment, and suicide prevention information in a prominent location on their websites and in a manner that is easily accessible to students, parents and guardians.

AB 34 adds section 234.6 to the Education Code, which provides the full list of the required information that must be posted, including:

  1. The local educational agency’s:
    • Student suicide prevention policy for 7th-12th graders;
    • Student suicide prevention policy for K-6th graders;
    • Sexual harassment policy as it pertains to students;
    • Policy on preventing and responding to hate violence, if it exists;
  2. Anti-discrimination, anti-harassment, and anti-intimidation policies; and/or
  3. Anti-bullying and anti-cyberbullying policies and procedures.
  4. The definition of discrimination and harassment and copies of Education Code sections 230 (prohibited practices on the basis of sex) and 221.8 (list of rights under Title IX).
  5. The name and contact information of the Title IX Coordinator.
  6. The rights of students and the public, and responsibilities of the local educational agency, under Title IX.
  7. A description of how to file a Title IX complaint, including an explanation of the statute of limitations and how the complaint will be investigated, with weblinks to this information on the United States Department of Education Office for Civil Rights (OCR)’s website.
  8. A weblink to the federal regulations implementing Title IX from the OCR website.
  9. Social media bullying prevention and statewide and community resource information for students who have been victims of violence, bullying, discrimination, intimidation and harassment.

While some of these items are already required to be posted on the website, particular attention should be given to ensure that all of the required elements are included.

These new laws take effect on January 1, 2020, but they will need to be implemented by the start of the 2020-2021 school year. If your district would like staff or student training on any of these topics, please contact us.

If you have questions regarding implementing these new requirements or regarding student safety in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

©2019 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.

Legislature Addresses Student Use Of Smartphones At School

October 2019
Number 46

The California Legislature recently passed Assembly Bill (AB) 272, which will become effective January 1, 2020, specifically authorizing school districts to adopt a policy to limit or prohibit student smartphone use, while also granting students certain specific rights to possess and use a smartphone at school. Even though smartphone policies or guidelines are widely used already, this bill provides specific authorization, while also defining some limitations. In particular, AB 272 provides that a student shall not be prohibited from possessing or using a smartphone at school:

  • During an emergency situation or as a response to a perceived threat of danger;
  • When a teacher or administrator gives permission to a student to possess or use a cell phone, subject to reasonable limitations imposed by the person giving permission;
  • When necessary for the health or well-being of a student, as determined by a licensed physician and surgeon; and,
  • When possession or use of the cell phone is required pursuant to a student’s individualized education program (IEP).

Existing law provides that no student may be prohibited from possessing or using an electronic signaling device that is determined by a licensed physician and surgeon to be essential for the health of the student and use of which is limited to purposes related to the health of the student.

It should be noted that the statutory language of AB 272 refers to “smartphones” rather than cell phones, but this distinction may not matter soon as approximately four out of five cell phones used in America are smartphones, a figure that is only growing over time.

Although AB 272 affirms the right of school districts, county offices of education, and charter schools to regulate student possession and use of cell phones and smartphones at school, AB 272 provides for more expansive protections for students when it comes to the use of smartphones, which may present unique challenges for school administrators and teachers. For example, many educational agencies have created board policies or school rules that limit the use of cell phones during classes or the school day, and some even ban them from the campus entirely. This new law does not require that public educational agencies create a policy regarding student cell phone or smartphone possession and use. However, these agencies should review any existing policies, rules, and practices to ensure compliance with AB 272. For some of these educational agencies, this may require changes to how teachers confiscate phones from students who are using them for non-educational purposes, as well as how school sites limit possession, and possibly use, of smartphones at schools.

AB 272 creates Education Code section 48901.7, which, interestingly, is placed within the student discipline portion of the Education Code. However, the new law does not create a clear stand-alone suspendable or expellable violation. Accordingly, a student’s violation of the smartphone policy will likely need to be linked to a related offense, such as using the smartphone to arrange a drug sale or to bully another student.

In creating or updating policy, school officials should be mindful of teachers’ use of smartphones for instructional purposes, students’ free speech rights, and parents’ expectations of instantaneous communications with their students. Input and feedback from these and other stakeholders will help to facilitate any proposed changes to policies, procedures, and practices related to discipline and enforcement. Educational agencies should also consider providing notice to all parents/guardians at the beginning of each school year about any changes to the smartphone policies and practices.

For more information about AB 272 or about student cell phone and smartphone use at schools in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Aimee Perry

Partner

Joshua Whiteside

Associate

©2019 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.

Students Suspended For Two Or More Days Must Now Be Provided Homework Assignments

October 2019
Number 64

In an effort to prevent suspended students in grades 1-12 from falling behind in class assignments or homework, Governor Newsom has signed Assembly Bill (AB) 982, requiring all public and charter school teachers to provide homework assignments to suspended students, upon request. Teachers have historically had the option whether or not to require suspended students to complete any assignments and tests missed during the term of their suspension.

AB 982

Beginning January 1, 2020, AB 982 requires a teacher to provide, upon request, homework to any student who has been suspended from school for two or more schooldays. This request must be made by either the suspended student, their parent, legal guardian, or other person holding the right to make educational decisions for the suspended student. If the request for homework is made, the assignments then must be turned in to the teacher by the student either upon the student’s return to school from suspension or within the timeframe originally prescribed by the teacher, whichever is later.

The Legislature explicitly stated that the purpose of AB 982 is to provide the suspended student with the homework that the student would otherwise have been assigned so that the student does not unnecessarily fall behind academically. The Legislature also explicitly stated it did not intend to require a teacher to correct classroom assignments or homework missed while the student is suspended, or to add an additional burden on a teacher’s workload. With this in mind, AB 982 also provides that if a teacher is unable to grade the homework assignment before the end of the academic term, then the assignment shall not be included in the calculation of the student’s overall grade in the class. This added safeguard minimizes the impact on teachers who otherwise would have to grade these potentially delayed assignments, while also reducing the punitive academic impact on the suspended student.

Takeaways

Though this bill does not explicitly require it, school districts and charter schools should consider informing a suspended student and their parent or legal guardian of their right to request the student’s homework if the suspension will last two or more days. Similarly, school districts and charter schools should consider informing all teachers of the new requirements under AB 982, and develop consistent and equitable procedures around grading assignments for suspended students.

For more information on this bill, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Manuel F. Martinez

Partner

©2019 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.

School Districts May Develop A Policy Permitting Parents To Administer Medical Marijuana To Students On Campus

October 2019
Number 57

On October 9, 2019, Governor Gavin Newsom signed Senate Bill (SB) 223, which allows local educational agencies to adopt a policy regarding administration of medicinal cannabis to students on campus. The new law, referred to as “Jojo’s Act,” becomes effective on January 1, 2020, and was named after a San Francisco teenager who takes medicinal cannabis to control serious seizures. Jojo’s Act adds section 49414.1 to the California Education Code and authorizes, but does not require, school districts, county offices of education, and charter schools to adopt a policy to permit a parent or guardian to possess and administer medicinal cannabis at a school site to a student who is a “qualified medical cannabis patient” under California law.

Requirements Under Jojo’s Act

Under Jojo’s Act, a school district, county office of education, or charter school may elect to adopt a policy allowing for the administration of medicinal cannabis to a student at school by a parent or guardian. If such a voluntary policy is adopted, Jojo’s Act requires that the policy include the following:

  1. Before administering the medicinal cannabis, the parent or guardian must provide to an employee of the school a valid written medical recommendation for medicinal cannabis for the pupil to be kept on file at the school;
  2. The parent or guardian must sign in at the school site before administering the medicinal cannabis;
  3. The parent or guardian shall not administer the medicinal cannabis in a manner that disrupts the educational environment or exposes other pupils; and
  4. After the parent or guardian administers the medicinal cannabis, the parent or guardian must remove any remaining medicinal cannabis from the school site.

School districts, county offices of education, and charter schools should also consider including and/or addressing the following if a policy is adopted:

  1. “Medicinal cannabis” in a smokeable or vapeable form is prohibited under Jojo’s Act;
  2. Under Jojo’s Act, local educational agencies may rescind the policy at a regularly-scheduled board meeting, or at a special board meeting under certain conditions, for any reason, including if the agency is at risk of losing federal funding due to the policy;
  3. Jojo’s Act does not allow or require school employees, in any way, to administer cannabis to students;
  4. Jojo’s Act provides that any records collected related to the administration of medicinal cannabis to a student must be treated as amedical record subject to all provisions of state and federal law that govern the confidentiality and disclosure ofmedical records; and
  5. Jojo’s Act does not limit the tetrahydrocannabinol (THC) content of medicinal marijuana permitted to be administered at school. Unlike cannabidiol or CBD, which does not create a “high,” THC is the cannabinoid that creates the psychoactive effects of cannabis, which can make a person experience a “high.” Some students who take cannabis for medical purposes require medicinal cannabis with THC content. State law does create limits on the content of THC in cannabis product.

Remaining Questions

Jojo’s Act leaves several questions unanswered, including those related to record keeping, discipline, and administration:

  1. As noted above, Jojo’s Act deems records related to medicinal marijuana administration on school campuses “medical records” rather than student education records. This appears to be the Legislature’s attempt to apply the Health Insurance Portability and Accountability Act (HIPAA) to these particular records, rather than applying the Family Educational Rights and Privacy Act (FERPA). However, HIPAA contains a provision stating that medical records maintained by school districts become education records, which are governed by FERPA rather than HIPAA. Thus, the provision of Jojo’s Act applying HIPAA to these medicinal marijuana records, seemingly conflicts with federal law. It remains to be seen how this will impact school districts.
  2. Notably absent from the Act is any reference to discipline. The Education Code provides that students may be suspended and/or recommended for expulsion when they unlawfully possess, use, or are under the influence of marijuana. (Ed. Code, §§ 48900(c);48915(a).) Jojo’s Act does not address how to reconcile the authorized administration with the prohibition against possession, use, or being under the influence on campus. This conflict requires careful consideration in any policy.
  3. Jojo’s Act does not provide an alternative for students whose parents or guardians cannot come onto campus during the school day to administer medication.

Other Limited Circumstances Authorizing Use of Medicinal Cannabis on Campus

Even without a policy under Jojo’s Act, educational agencies may be required to allow medicinal cannabis use on campus under other limited circumstances. Such circumstances include FDA-approved cannabis-based medications and judicial orders requiring a school district to administer cannabis to a student at school. (See 2018 Client News Brief Number 56; 2018 Client News Brief Number 55.)

Takeaways

The intersection of cannabis, education, disability, and equal access law is quickly developing and changing. We recommend you reach out to legal counsel who understands the nuances of this area of law, or to a Lozano Smith attorney with any questions regarding administration of medicinal cannabis on school campuses, including the possibility of developing a policy under Jojo’s Act.

If you have any questions regarding SB 223, or would like to discuss student rights or discipline matters related to cannabis use, please contact an attorney at one of our eight officeslocated statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Aimee Perry

Partner

Alyssa R. Bivins

Associate

©2019 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.

New Laws Narrow The Use Of Medical Exemptions For Student Immunizations

October 2019
Number 54

Through Senate Bills (SB) 276 and 714, California lawmakers demonstrated a concerted effort to narrow the use of medical exemptions from immunization requirements by requiring a singular exemption form and consolidating oversight through the California Department of Public Health (CDPH). In creating stricter scrutiny over medical exemptions, SB 276 and 714 continue in the spirit of SB 277, adopted in 2015, which eliminated religious and personal belief exemptions to school vaccine mandates. (See 2015 Client News Brief Number 36.)

By January 1, 2021, the CDPH must develop an electronic, standardized, statewide medical exemption certification form that must be used by licensed physicians and surgeons and must be transmitted directly to the California Immunization Registry (CAIR) established pursuant to Health & Safety Code section 120440. As of January 1, 2021, this standardized form will be the only documentation of a medical exemption that school districts may accept.

In the near-term, parents or guardians may continue to file a written statement by a licensed physician and surgeon to the effect that the child’s physical condition is such that immunization is not considered safe, and that the child will still be exempt from the specified requirements, until January 1, 2021.

Students who have an existing medical exemption, issued before January 1, 2020, may continue with enrollment in school until the child enrolls in the next “grade span.” These are defined as birth to preschool, kindergarten (including T-K) to grade 6, and grades 7-12.

The bills also add a process for parents and guardians to appeal to the Secretary of California Health and Human Services if a medical exemption is revoked pursuant to section 120372(d). A student whose revocation is appealed shall continue to attend school and not be required to begin the immunization requirements for continued admittance, provided that the appeal is filed within 30 days of revocation of the medical exemption.

In addition, schools and institutions that have 1) an overall immunization rate of less than 95%, 2) waivers from a physician or surgeon who submitted five or more medical exemptions in a calendar year, or 3) not provided reports on vaccination rates to the CDPH, will be subject to, at a minimum, an annual review by the CDPH of all immunization reports.

Takeaways

As of January 1, 2021, school districts will be able to accept only one medical exemption immunization certification form. The identification of only one valid certification form should assist in streamlining medical and registration processes for schools and others.

If you have any questions about SB 276 or 714 or about laws applicable to student immunizations 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 subscribe to our podcast, follow us on Facebook, Twitter, andLinkedIn or download our mobile app.

Written by:

Ruth E. Mendyk

Partner

Nicholas G. Felahi

Associate

©2019 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.

New Law Will Allow Students With IEPs To Take Assistive Technology Devices Home With Them

October 2019
Number 51

Governor Newsom recently signed Assembly Bill (AB) 605, which will require local educational agencies (LEAs) to allow students to use school-purchased assistive technology devices at the student’s home or in other settings when the student’s individualized education plan (IEP) team decides on a case-by-case basis that access to those devices is necessary in order for the student to receive a free appropriate public education (FAPE). This new law takes effect on January 1, 2020.

Current law states that LEAs (including school districts and charter schools) are responsible for providing specialized equipment, including assistive technology devices, for use at school when it is needed to implement a student’s IEP. An “assistive technology device” is defined as any item, piece of equipment or product system that is used to increase, maintain or improve the functional capabilities of a student with exceptional needs. Assistive technology devices come in many forms, and may be low-tech or high-tech, and include items such as wheelchairs, voice-activated computers, large-print books, pencil grips, and many other types of equipment.

Frequently they are used by students with limited or no verbal communication skills. According to the author of AB 605, when such students are required to leave an assistive technology device at school, “they are essentially losing their voice when they go home.”

AB 605, which adds new section 56040.3 to the Education Code, will also require LEAs to continue to provide students with exceptional needs who require the use of assistive technology devices to have continued access to the devices, or comparable devices, for up to two months after the student leaves to enroll in another LEA, or until alternative arrangements can be made.

Going forward, it is important that IEP teams consider whether students with exceptional needs may obtain educational benefit from the use of their school-owned assistive technology devices when away from school, and that staff are aware that these devices may need to be made available for students to use at home and other locations away from school, as determined by the students’ IEPs.

If you have any questions about AB 605, or education of students with exceptional needs in general, please contact the author of this Client News Brief or an attorney at one of our eight offices located statewide. You can also subscribe to our podcast, follow us on Facebook, Twitter, and LinkedIn or download our mobile app.

Written by:

Marcy Gutierrez

Partner

©2019 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.