New Law Requires Legal Consult Prior to Custodial Interrogation of Minor under Age 16

November 2017
Number 78

Beginning January 1, 2018, minors under the age of 16 must consult with legal counsel prior to a custodial interrogation and before waiving their Miranda rights.

Existing law requires a peace officer to advise minors of their rights by providing a Miranda warning. But if the minor or parent waives those rights, officers can interrogate the minor. Senate Bill (SB) 395, which adds section 625.6 to the Welfare and Institutions Code, will prohibit a law enforcement officer from conducting a custodial interrogation of or accepting a waiver of Miranda rights by a minor 15 or younger until the minor has had an opportunity to consult with legal counsel. This consultation must occur in person, by telephone or by video conference and may not be waived.

SB 395 requires a court to consider the impact of a peace officer’s failure to provide such legal consultation in determining the admissibility of statements the minor made during or after a custodial interrogation.

SB 395 provides limited exceptions to its consultation requirement. The new law does not require probation officers to comply with its requirements and also excludes questions related to obtaining information believed to be necessary to protect life or property from an imminent threat.

SB 395 creates new issues for police and other public agencies, including schools, when dealing with minors and illegal or inappropriate conduct. School districts that rely upon interviews of students by school district police department officers or contract school resource officers (SRO) in relation to student discipline proceedings may wish to review those practices for conformance with the new law, which covers potential criminal misconduct occurring on school campuses. In particular, school districts may wish to review how and when a law enforcement officer or an SRO may become involved with investigations of student misconduct.

Lozano Smith is currently working with our law enforcement, municipal, school district and community college district clients to address these and other issues related to the enactment of SB 395. If you have questions or need more information on how the new law impacts your agency, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Jenell Van Bindsbergen

Partner

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

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New Laws Ease Residency and Coursework Requirements for Children of Active Duty Military Personnel

November 2017
Number 77

A pair of new laws intended to ease residency and coursework requirements for students in military families will go into effect on January 1, 2018. Senate Bill (SB) 455 expands on prior legislation to permit students whose parents are on active duty military orders to remotely enroll in school, while Assembly Bill (AB) 365 extends coursework exemptions for other groups of transient students to children of active duty members of the military.

SB 455: Updated Residency Rules for Students in Military Families

A prior bill, SB 1455, went into effect on January 1, 2017. SB 1455 allowed some transferring military families to remotely register their children in school prior to being physically located within the boundaries of their new school district. (Ed. Code, § 48204.3.) Under this existing law, a student complies with school district residency requirements if the student’s parent was transferred or is pending transfer to a military installation located within the boundaries of the school district while on active military duty pursuant to an official military order, so long as proof of residence is provided within 10 days of the documented arrival date.

A problem arose, however, in that the law does not cover families that intend to live and enroll in school outside of the school district in which the military installation in question is located. SB 455 addresses this problem by amending section 48204.3 to provide that children in military families meet the residency requirements for attendance in a school district if the student’s parent, while on active-duty orders, is transferred or is pending transfer to a military installation anywhere in the state. Now, military families on active duty orders will be permitted to remotely enroll in any school district where they will reside regardless of whether the military installation is within school district boundaries.

AB 365: Changes Coursework Requirements for Children of Active Military Personnel

Due to their frequent transfers between school districts, foster youth, homeless students, and former juvenile court school students often struggled to graduate on time due to local coursework requirements that exceed those mandated by state law. By enacting AB 365, state lawmakers extended a coursework exemption and other related provisions that already applied to students in these transient populations to children of active duty military personnel.

Under AB 365, Education Code sections 51225.1 and 51225.2 were amended to provide that foster youth, homeless students, children of active duty military personnel, and former juvenile court school students who transfer between schools any time after the completion of their second year of high school are exempt from all coursework and other requirements that exceed statewide coursework requirements.

The exemption does not apply if the student is reasonably able to complete the additional requirements in time to graduate by the end of his or her fourth year of high school. If a school district determines a student is reasonably able to complete the coursework required for graduation within five years, the district is required to inform the student of the option of remaining in high school for a fifth year, and of the effect that doing so may have on the student’s ability to get into college.

State law also requires school districts to accept satisfactory coursework these students completed at other schools, even if the student did not finish the course. School districts are required to give full or partial credit for the completed coursework and may not require a student to retake a course if the student has satisfactorily completed the entire course in a public school, a juvenile court school, or a nonpublic, nonsectarian school or agency. In addition, these students cannot be prevented from taking or retaking courses to meet the eligibility requirements for admission to either the California State University or University of California systems.

For more information on SB 455 and AB 365 or on enrollment and coursework requirements for students in military families in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Thomas A. Manniello

Partner

Klye A. Raney

Associate

©2017 Lozano Smith

As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.

Legislative Update: New Timelines for Interdistrict Transfer Appeals at Certain County Offices of Education

October 2017
Number 66

Under existing law, school districts enjoy wide discretion in setting the terms for rejection and revocation of an interdistrict transfer under Education Code section 46600 et seq. Terms of transfer revocation are typically clearly specified in a transfer agreement between two school districts. Rejection and revocation of interdistrict transfers cannot be based on any discriminatory or other unlawful basis. Students denied an interdistrict transfer may appeal the denial to the county office of education.

Due to a recent increase in the number of interdistrict transfer appeals heard by the Los Angeles County Office of Education, the Legislature passed Senate Bill (SB) 344 to provide a longer timeline for a county office of education to hear these appeals. This bill takes effect January 1, 2018. The Los Angeles County Office of Education now has 60 calendar days after an appeal is filed to consider whether a student should attend school where he or she desires.

Other large county offices of education (Alameda, Contra Costa, Fresno, Kern, Orange, Riverside, Sacramento, San Bernardino, San Diego and Santa Clara) now have 45 calendar days instead of 40 school days to make this determination. These new timelines are set to expire on July 1, 2023 for the Los Angeles County Office of Education and July 1, 2019 for these other large county offices of education.

If you have any questions about the implementation of SB 344, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roberta L. Rowe

Partner

Joshua Whiteside

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.

Legislative Update: Governor Approves Changes to Pre-Suspension Conferences

October 2017
Number 65

On October 3, 2017, Governor Jerry Brown signed Assembly Bill (AB) 667, which generally requires schools to inform students about other means of correction that were attempted before suspending a student at the mandatory informal disciplinary conferences. This bill takes effect January 1, 2018.

Education Code section 48911, subdivision (b), requires a student being suspended to be informed during the mandatory informal pre-suspension conference of the reason for the suspension and the evidence against the student. The student must be given the chance to tell his or her side of the story and to produce any evidence to support it. AB 667 will now also require that students be informed of the other means of correction that were attempted prior to suspension. Other means of correction, defined under Education Code section 48900.5, include, but are not limited to, referrals to a school counselor, a student study team, a restorative justice program, after-school programs and a special education assessment.

AB 667 does not change the law about when other means of correction must be attempted before a school district can suspend a student. Under Education Code section 48900.5, there are certain disciplinary violations or facts offense and before use of other means of correction.

AB 667 continues the Legislature’s desire to reduce the total number of suspensions and expulsions since the passage of AB 420 in 2014, which limited school districts’ ability to suspend and expel students for disrupting school activities or committing an act of willful defiance. (See 2014 Client News Brief No. 72.) These measures are rooted in studies which show over half of students with multiple suspensions are chronically absent, boys are three times more likely to be suspended than girls, and students of color, foster youth, and low-income students are disproportionately suspended. The California Department of Education has reported a 34 percent drop in suspensions and a 40 percent drop in expulsions since AB 420 was implemented.

School districts and county offices of education will need to update their disciplinary procedures to ensure that this new notice requirement at the informal pre-suspension conference is met.

If you have any questions about the implementation of AB 667, please contact the authors of this Client News Brief or an attorney at one of oureight offices located statewide. You can also visit ourwebsite, follow us onFacebook orTwitter or download our Client News Brief App.

Written by:

Roberta L. Rowe

Partner

Joshua Whiteside

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.

Legislative Update: New Immigration Laws Protect Undocumented Students

October 2017
Number 64

On October 5, 2017, Governor Jerry Brown signed a package of bills aimed at enhancing protections for immigrants. Three of the bills have significant implications for schools and students. The three bills become effective January 1, 2018.

Assembly Bill 699: Mandates New Supports and Policies for Immigrant Families

Assembly Bill (AB) 699 requires schools and school districts to provide an array of new supports for immigrant families and limits the assistance schools may provide with immigration enforcement activities. The bill’s major provisions are described below.

Discrimination:

The bill expressly prohibits discrimination on the basis of immigration status. Immigration status cannot be used as a basis to deny students access or opportunity within public schools.

Collection of private information:

School officials are prohibited from collecting or requesting information or documents regarding the citizenship or immigration status of students or their family members unless required by law, such as for student work permits or the federal school lunch program. The bill restates a recently enacted prohibition on asking for Social Security numbers or the last four digits of Social Security numbers.

Detained and deported parents:

A school should not contact Child Protective Services (CPS) to assist students whose parents have been detained or deported by immigration officials until it has exhausted all other avenues to ensure their care. Schools are required to pursue all contacts on the child’s emergency card or any other instructions provided by a parent or guardian prior to contacting CPS. The intent of this provision is to avoid the unnecessary placement of children in foster care.

Student and family support:

Schools must provide “Know Your Rights” information to parents. For example, students have the right to a free public education regardless of immigration status, and schools must advise parents of this right. This information and notification may be provided in a school or school district’s annual notice to parents, or by any other cost-effective means. The California Attorney General’s website includes Know Your Rights resources at https://oag.ca.gov/immigrant/rights.

Bullying and harassment education:

Under AB 699, schools must educate students about the negative impacts of bullying based on a student’s actual or perceived immigration status or their religious beliefs or customs. According to a Legislative analysis, there have been hundreds of reported incidents of bullying, harassment and intimidation across the country based on these factors this year. The California Department of Education is now required to ensure school districts adopt policies prohibiting discrimination and establish procedures for reporting and addressing such incidents. Schools may need to modify anti-bullying curricula and provide additional professional development to staff in order to address immigration status and religious practices and customs.

Safe Haven Policies:

By April 1, 2018, the California Attorney General must create model policies that address immigration agents’ requests to access school sites or for information about students or their family members. Schools must implement equivalent policies by July 1, 2018.

Report to Board:

Superintendents or charter school principals are required to timely report to their governing boards any law enforcement request for student information or for school site access for immigration enforcement.

Senate Bill 54: “Sanctuary State” Bill Limits Assistance with Immigration Enforcement

Informally known as the “Sanctuary State” law, Senate Bill (SB) 54 prohibits state and local law enforcement agencies, including school police and security departments, from assisting immigration enforcement in any way. Specifically, law enforcement agencies may not use money or personnel to investigate, interrogate, detain, detect or arrest persons for immigration-related offenses.

By October 1, 2018, the state Attorney General must publish model policies for limiting assistance to immigration enforcement and to ensure that public schools, public health agencies and courthouses remain safe and accessible to all California residents, regardless of immigration status. All public schools, California Community Colleges, California State Universities, public health centers and courthouses must adopt these policies and become “safe zones” for immigrants. Other organizations that provide services related to education or physical and mental health such as libraries, shelters and the University of California system, are encouraged to adopt similar policies.

SB 54 does not prevent Immigration and Customs Enforcement or the Department of Homeland Security from doing their work by using their own resources to enforce immigration laws. The law seeks to ensure effective policing to protect the safety, well-being, and constitutional rights of the people of California, and to direct the state’s limited resources to matters of greatest concern to state and local governments. Nothing in the new law prohibits California law enforcement agencies from asserting its own jurisdiction over criminal law enforcement matters.

Senate Bill 257: Residency Retention for Students Whose Parents are Detained or Deported

Existing law generally requires students to attend school in the district in which their parent or legal guardian resides. Senate Bill (SB) 257 adds section 48204.4 to the Education Code permitting students to meet residency requirements when both of the following requirements are met:

(1) The student’s parent or guardian has departed California against his or her will, and the student can provide official documentation evidencing the departure; and

(2) The student moved outside of California as a result of his or her parent leaving the state against his or her will, and the student lived in California immediately before moving outside the state. The student must provide evidence of enrollment at a public school in California immediately before moving outside of the state.

SB 257 also allows a parent who must depart against his or her will to designate another adult to attend school meetings and to serve as an emergency contact.

The bill defines a person who has departed against their will as either:

  • A person in the custody of a government agency who is transferred to another state;
  • A person subject to a lawful removal order, who was either removed or was permitted to voluntarily leave California before being removed; or
  • A person subject to any additional circumstances consistent with these purposes, as determined by the school district.

If you have questions about these new laws and their impact on schools, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sarah L. Garcia

Partner

Sara E. Santoyo

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.

New Laws Enhance Role of Student School Board Members

October 2017
Number 63

On September 25, 2017, Governor Jerry Brown signed two bills aimed at giving a stronger voice to student board members of school district governing boards. Assembly Bill 261 confers voting rights upon all student board members, while Senate Bill 468 enhances a student board member’s access to board materials. Both bills go into effect on January 1, 2018.

Assembly Bill 261: Voting Rights for All Student Governing Board Members

Existing law requires the governing board of a school district with one or more high schools, upon the receipt of a pupil petition for pupil representation, to order the inclusion of at least one student board member. The petitioner may request that the board add either a nonvoting student member or a preferential voting student member. Preferential voting rights give a student board member the right to vote on motions before the other board members vote, but the student’s vote is not considered in determining whether a motion passes. Assembly Bill (AB) 261 amends Education Code section 35012, subdivision (d) to provide all student board members preferential voting rights.

The bill maintains the existing requirement that a student board member’s vote be cast before the official vote of the governing board. Even though the student board member’s vote does not count toward the final numerical outcome of the vote, it must be recorded in the meeting minutes. This procedural order is intended to ensure that student board members’ opinions are taken into account before a board vote.

Senate Bill 468: Students to Receive More Timely Access to Board Materials

Senate Bill (SB) 468 amends Education Code section 35012 to require that school districts provide open meeting materials to student board members at the same time as other school board members. The bill also requires school officials to invite student board members to any staff briefings provided to other board members, or to provide a separate staff briefing to student board members within the same time frame as other board members’ briefings. While the changes will provide student members more timely access to information, the bill’s provisions are limited to open meetings and do not provide student members the right to attend closed sessions or receive information related to closed sessions.

Takeaways

These new bills are intended to enhance the role of student school board members. Any school district that has a student board member will be required to grant him or her preferential voting rights and can no longer have student members who are nonvoting. The student board member’s preferential vote must be cast before the official board vote. Any open meeting materials or briefings that are provided to school district board members must also be provided to the student board member in the same time frame.

For more information on AB 261 or SB 468 or on board governance in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Harold H. Freiman

Partner

Mark Murray

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.

School District Need Not Accommodate Coach’s Request to Publicly Pray at Football Games

October 2017
Number 58

A Washington school district was not required to allow a high school football coach to pray on the 50-yard line at the end of each game, the Ninth Circuit Court of Appeals ruled inKennedy v. Bremerton School District (9th Cir. 2017, No. 16-35801) ___F.3d___ <http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/16-35801.pdf&gt;. The court found that the District did not violate the coach’s First Amendment rights by placing him on administrative leave for refusing to cease his demonstrative prayer after football games.

Background

Joseph Kennedy coached football in the Bremerton School District from 2008 to 2015. During his first coaching season, Kennedy began praying at the end of each football game. After a few games, players started to join Kennedy. Eventually, Kennedy began giving short motivational speeches with religious content following each game.

In September 2015, the District learned of Kennedy’s prayers and speeches and asked him to limit his speeches to non-religious topics to avoid offending any players. The superintendent told Kennedy he could still engage in private, non-demonstrative prayer.

Following the District’s request, Kennedy began giving non-religious post-game speeches and praying only after everyone had left the stadium. After several weeks of this practice, Kennedy asked the District to allow him to resume praying on the field after each game. The District reiterated that Kennedy could pray in private before or after the games, but that he could not engage in demonstrative religious activity observable by students and the public attending the games. Kennedy refused to comply with the District’s instruction and engaged in demonstrative prayer during the next two games. The District placed Kennedy on paid administrative leave. The football players did not continue to pray on their own after the football games.

Several months later, Kennedy sued the District, asking the trial court to require the District to reinstate him as a football coach and allow him to pray on the 50-yard line immediately after each football game. The Ninth Circuit upheld the trial court’s ruling that the District did not did not have to reinstate Kennedy or permit him to engage in demonstrative public prayer immediately after the games.

Takeaways

Public employees retain their First Amendment free speech rights when speaking as private citizens. But “when public employees make statements pursuant to their official duties,” the United States Supreme Court held in its landmark 2006 ruling in Garcetti v. Ceballos, “the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” In Kennedy, the Ninth Circuit found that Kennedy spoke as a public employee-and not as a private citizen-because he prayed “immediately after games while in view of parents and students.” The court found that this activity fell within the scope of Kennedy’s official duties because in his role as a sports coach, Kennedy served as a mentor and role model for student athletes.

The Ninth Circuit’s ruling highlights that a public school may limit demonstrative religious speech of an employee who serves as a student mentor and role model. The court suggested that this same rule applies to teachers, and this analysis also likely applies to counselors and other employees who serve as role models to students. Nevertheless, the court indicated that a public school employee has the right to pray or otherwise practice religion while in private, even if on school grounds.

Kennedy does not address whether a district may limit religious speech of other employees (janitors or cafeteria workers, for example) who have more limited and discrete interactions with students. Additionally, while one
judge wrote separately to explain his view that the District could limit Kennedy’s public prayers to avoid the appearance of endorsing a particular religion, Kennedy does not address whether a district violates the
Establishment Clause by permitting or failing to limit an employee’s demonstrative religious speech.

If you have any questions about the Kennedy decision or employees’ religious speech rights in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Sloan R. Simmons

Partner & Co-Chair

Alyssa R. Bivins

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.