New Law Entitles Students To Wear Tribal Regalia Or Recognized Objects Of Religious, Ceremonial Or Cultural Significance As An Adornment At School Graduation Ceremonies

January 2019
Number 1

Effective January 1 2019, a new law in California establishes students’ right to wear tribal regalia or recognized objects of religious or cultural significance as an adornment at school graduation ceremonies.

Background

Generally speaking, federal and state law permits school districts, county offices of education and charter schools (local educational agencies, or LEAs) to develop and enforce reasonable dress code policies. Existing law has been understood to permit LEAs the discretion to adopt “no adornment” policies at graduation ceremonies, as a way to maintain traditional graduation decorum. Under a “no adornment” graduation attire policy, LEAs could prohibit students from adorning the required cap and gown attire for commencement ceremonies with other attire or garb beyond that approved for the ceremony (such as approved sashes signifying certain school-related accolades). The primary legal basis for LEA control in this area is that the required graduation attire for commencement ceremonies is not a matter of student expression, but rather “school speech.”

Assembly Bill (AB) 1248, however, adds section 35183.1 to the Education Code, and changes the rules when it comes to graduation ceremony dress codes. AB 1248 aims to ensure that students are permitted to adorn the required graduation cap and gown so that they may express themselves through their recognized cultural traditions, while simultaneously celebrating their educational achievements. For example, AB 1248 makes clear that Native American students are now permitted to wear an eagle feather at graduation ceremonies, as an expression of their cultural and spiritual beliefs.

While students will now have the right to wear “religious, ceremonial, or cultural” adornments at their school graduation ceremony, LEAs still retain the authority to prohibit an item that is likely to cause a substantial disruption of, or interference with, the graduation ceremony. This continuing LEA authority should give LEA officials the flexibility to impose size and other limits on student adornments, so that such adornments do not cause disruption of the ceremony. Additionally, it is important to note that the new law defines “adornment” as “something attached to, or worn with, but not replacing, the cap and gown customarily worn at school graduation ceremonies,” and defines “cultural” as “recognized practices and traditions of a certain group of people.” The definition of “cultural” appears to signal that the new law is not intended to permit students to merely adorn they graduation cap and gown with any expression of their choosing. Yet, ambiguity in the law in this respect will require LEAs to be thoughtful on how they align their policies and practices in this area, and risks school officials needing to act as arbiter of what student adornment satisfies the definition of “cultural” and what does not.

Takeaways

LEAs should review their policies and practices related to graduation and in particular the required dress codes. Among other options for LEAs to consider is to require students to obtain advance approval from school officials before being permitted to wear adornments at graduation ceremonies. By implementing such a policy, schools can make advanced determinations as to whether a student’s adornment request is likely to cause a substantial disruption, or interference with, the graduation ceremony.

If you have any questions about AB 1248 or about student issues generally, 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

Kristy J. Boyes

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.

Advertisements

New Laws Grant Diplomas To Terminally Ill And Students That Have Departed California

January 2019
Number 3

Governor Jerry Brown recently signed a pair of laws related to granting honorary or retroactive high school diplomas for particular groups of students. Assembly Bill (AB) 2109 authorizes the granting of honorary diplomas to students who are terminally ill and, AB 3022 authorizes the retroactive granting of high school diplomas to students who have departed California against their will.

AB 2109: Diplomas for Terminally Ill Students

Existing law allows the granting of honorary high school diplomas to foreign exchange students who have not completed the course of study ordinarily required.

AB 2109 extends this law to allow honorary diplomas to be granted to students who are terminally ill. A diploma granted under these circumstances must be clearly distinguishable from the regular diploma awarded upon graduation.

AB 3022: Diplomas for Students Forced to Depart California

Existing law authorizes the retroactive granting of high school diplomas to individuals whose education was interrupted due to internment during World War II, and to veterans of World War II, the Korean War, or the Vietnam War, when certain conditions are met.

AB 3022 authorizes retroactive granting of high school diplomas to individuals who have been forced to depart California against their will. Circumstances under which an eligible student may have departed California include being transferred to another state while in custody of a government agency, being ordered to voluntarily depart or be removed by a government agency, including pursuant to federal immigration law, or additional circumstances determined by a school district to be consistent with the purpose of the law.

To meet the criteria, a student must have been enrolled in grade 12 at the time his or her education was interrupted, must have not received a diploma due to that interruption, and must have been in good academic standing at the time of departure. In making the determination regarding academic standing, educational agencies must consider any coursework that may have been completed outside of the United States or through online or virtual courses.

Takeaways

These new laws allow educational agencies to recognize a student’s hard work and achievements under specific circumstances where they would ordinarily not be acknowledged. Educational agencies may choose to enact policies or procedures for identifying current or former students who may be eligible for honorary or retroactive diplomas under the new laws.

If you have any questions about these new laws, 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

©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 Law Limits the Use of Seclusion and Restraints in Schools, Requires Annual Data Report

December 2018
Number 90

The California Legislature recently passed a new law aiming to promote student rights and safety by imposing limits on the use of behavioral restraints and seclusion in schools. Assembly Bill (AB) 2657, which prohibits the use of restraint or seclusion for any student except in specified circumstances, becomes effective on January 1, 2019.

Current Law

Existing law limits the use of seclusion and restraints in schools for students with exceptional needs. Specifically, California school districts and nonpublic schools or agencies serving individuals with exceptional needs are prohibited from authorizing, ordering, consenting to, or paying for certain types of behavior interventions, including electric shock, the release of toxic or noxious sprays or mists, mechanical restraints, except when mechanical restraints are used by trained personnel as a limited emergency intervention, or locked seclusion, except when seclusion is used as specified. Additionally, California law authorizes the use of emergency interventions for students with exceptional needs in limited circumstances. (See 2013 Client News Brief No. 39.)

California law also prohibits persons employed by or engaged in a public school from inflicting, or causing to be inflicted, corporal punishment upon a student. However, there are currently no other limitations on the use of seclusion or restraints for general education students.

New Law

AB 2657 establishes a student’s right “to be free from the use of seclusion and behavioral restraints of any form imposed as a means of coercion, discipline, convenience, or retaliation by staff.” The legislation limits the use of seclusion and behavioral restraints, which include both mechanical and physical restraints, for all students and establishes parameters for situations in which behavioral restraints or seclusion may be used. Specifically, school districts and nonpublic schools or agencies may use a behavioral restraint or seclusion “only to control behavior that poses a clear and present danger of serious physical harm to the pupil or others that cannot be immediately prevented by a response that is less
restrictive.”

The legislation also provides statutory definitions for behavioral restraint, mechanical restraint, physical restraint, and seclusion for the first time in the Education Code, adopted from the Office for Civil Rights’ guidance on the use of restraint and seclusion. Notably it states vehicle safety restraints when used as intended during the transport of a student in a moving vehicle are not mechanical restraints, and physical escorts are not physical restraints.

School districts and nonpublic schools or agencies are prohibited from using a behavioral restraint for longer than is necessary to contain the behavior that poses a clear and present danger of serious physical harm. The legislation clarifies what types of interventions are not allowed, and emphasizes the need to avoid restraints and seclusion whenever possible. Specifically, it bans the use of locked seclusion unless the facility is otherwise licensed or permitted to use a locked room, physical restraint techniques that obstruct the student’s respiratory airway or impairs the student’s breathing or respiratory capacity, behavioral restraints that restrict breathing, and placing a student in a facedown position with the
student’s hands held or restrained behind the student’s back. A student placed in seclusion must be under constant, direct observation at all times.

AB 2657 also requires school districts and nonpublic schools or agencies to collect and report data on the use of restraints and seclusion to the California Department of Education (CDE) annually, no later than three months after the end of the school year. The report must include the number of students subjected to mechanical restraint and the number of times it was used, the number of students subjected to physical restraint and the number of times it was used, and the number of students subjected to seclusion and the number of times it was used. The information must be disaggregated by race or ethnicity, and gender, with separate counts for students with an individualized education program (IEP), students with a
504 plan, and students without an IEP or 504 plan. The legislation requires CDE to annually post the data from the report on its website within three months after the report is due to CDE.

Takeaways

School districts should note the new limitations on the use of restraints and seclusion for all students, effective January 1, 2019. This legislation does not repeal or replace existing laws that provide parameters and procedures for the use of seclusion and restraint for students with exceptional needs. School districts should consider updating their policies and procedures relating to pupil discipline, in light of the new rules for general education students, while continuing compliance with existing law related to seclusion or restraint that applies only to students with exceptional needs.

If you have any questions about AB 2657 or restraint and seclusion laws applicable to California school districts, 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:

Marcy Gutierrez

Partner

Amanda E. Ruiz

Senior Counsel

Amanda J. Cordova

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.

Two New Laws Require Educational Agency Actions to Enhance Student Access to Health Services

December 2018
Number 92

Governor Jerry Brown recently signed two Assembly Bills (AB) into law, designed to increase student access to health services. Both laws focus on mental health services for students.

AB 2022: Bi-Annual Notice Requirement Regarding Access to Student Mental Health Services

AB 2022 adds Education Code section 49428 and requires public schools, including charter schools, to provide students and their parents or guardians at least twice per school year with information regarding how to access student mental health services on campus and/or in the community. This new notice requirement must be implemented beginning in the 2019-2020 school year.

Schools must notify parents or guardians by including the information in at least two of the following formats:

  • Electronic or hardcopy letter;
  • Parent handbook distributed at the beginning of the school year; or
  • School’s website or social media page.

Schools must notify students by including the information in at least two of the following formats:

  • An electronic or hardcopy document or school publication;
  • Pupil orientation materials at the beginning of the school year, or a pupil handbook; or
  • The school website or social media page.

Counties may use funds from the Mental Health Services Act to provide grants to school districts, charter schools or county offices of education. In order to access such funds, school districts, charter schools and county offices of education should apply for grants from their respective counties.

AB 2315: CDE Guidelines for Providing Telehealth Technology in Public Schools

AB 2315 adds Education Code section 49429 and requires the California Department of Education (CDE) to develop guidelines for the use of telehealth technology in public schools, including charter schools, for the provision of mental health and behavioral health services to students oncampus. Telehealth is the provision of health care services from a distance using information and communication technologies. Examples of telehealth may include video conferencing, phone and email communications, remote monitoring, and online patient portals. The CDE guidelines must be posted on the CDE’s website by July 1, 2020, as long as sufficient funds are made available for this purpose. The guidelines must cover a number of topics including, but not limited to, the following:

  • Qualifications of individuals authorized to assist students in accessing mental health and behavioral health services via telehealth technology;
  • Qualifications of individuals authorized to provide mental health and behavioral health services to students via telehealth technology;
  • Potential sources of funding for schools to implement telehealth technology;
  • Legal requirements for parental consent to treatment of minors via telehealth technology; and
  • Measures necessary to protect pupil and medical data transmitted via telehealth technology.

Takeaways

Both of these new laws are aimed at enhancing student access to health services with a specific focus on mental health. Schools should prepare to provide the notices required under AB 2022 beginning in the 2019-2020 school year. Counties should be prepared to process funding requests and provide funding to schools for the notifications required under AB 2022. With respect to AB 2315, public schools should be on the lookout for CDE’s guidelines, which should be issued by July 1, 2020. These guidelines will provide schools with a roadmap to use technology for mental and behavioral health services on campus.

If you have any questions regarding these new laws or any other student matter, 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:

Marcy Gutierrez

Partner

Maryn Oyoung

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.

Pregnant and Parenting Pupils Afforded New Accommodations Beginning January 1, 2019

December 2018
Number 91

Beginning January 1, 2019, significant amendments to the Education Code provide pregnant and parenting pupils with new rights and accommodations designed to afford them the opportunity to succeed while protecting their health and the health of their children.

In 2015, over 24,000 children were born to individuals between the ages of 15 and 19 in California. Fewer than 4 in 10 young mothers graduate from high school by the age of 18, and 70 percent of young parents nationwide are “pushed out of school.” Assembly Bill (AB) 2289 works to allay some of these obstacles.

AB 2289

First, AB 2289 adds the following guidance:

A local education agency may:

  • Require any pupil to obtain the certification of a physician or nurse practitioner that the pupil is physically and emotionally able to continue participation in the regular education program or activity.

A local education agency must:

  • Treat pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom in the same manner and under the same policies as any other temporary disabling condition.

A local education agency shall not:

  • Apply any rule concerning a pupil’s actual or potential parental, family, or marital status that treats pupils differently on the basis of sex.
  • Exclude or deny any pupil from any educational program or activity, including class or extracurricular activity, solely on the basis of the pupil’s pregnancy, childbirth, false pregnancy, termination of pregnancy, or recovery therefrom.
  • Require pregnant or parenting pupils to participate in pregnant minor programs or alternative education programs. Those pupils who voluntarily participate in alternative education programs shall be given educational programs, activities, and courses equal to those they would have been in if participating in the regular education program.

Next, AB 2289 requires 1) notification to pregnant and parenting pupils of their rights and options through annual welcome packets and independent study packets; and 2) annual notification to parents and guardians of pupils at the beginning of the regular school term of the rights and options available to pregnant and parenting pupils.

Third, AB 2289 ensures specific accommodations to pregnant and parenting pupils:

  • Parental Leave
    • 8 weeks of allowed parental leave. Parental leave may be taken before childbirth if there is a medical necessity and after childbirth during the respective school year of birth. This is inclusive of any mandatory summer instruction. While pupils or those holding a pupil’s educational rights should notify the school if electing to exercise this right, failure to do so does not waive it.
    • More than 8 weeks of parental leave if deemed medically necessary by the pupil’s physician.
    • Excused absences from the pupil’s regular school program during the period of parental leave.
    • No requirement to complete academic work or other school requirements during the period of parental leave.

  • Return from Parental Leave
    • A pupil may resume the course of study at the school in which he or she was enrolled before taking parental leave.
    • A pupil is entitled to opportunities to make up work missed during his or her leave and reenrollment in courses.
    • A pupil may opt for a fifth year of high school instruction if necessary to complete state and local graduation requirements.
    • A pupil may elect to attend an alternative education option in lieu of returning to the school in which he or she was enrolled prior to parental leave. Such program shall provide educational programs, activities, and courses equal to those of the pupil’s regular education program.


The new law provides that the use of the above listed accommodations shall not result in academic penalty to any pregnant or parenting pupil. Complaints of noncompliance are to be processed under the Uniform Complaint Procedures (UCP).

AB 2289 also amends the definition of excused absences. Effective January 1, 2019, absences to care for a pupil’s sick child without proof of a doctor’s note must be excused.

Takeaways

School districts and other educational entities should amend their board policies and administrative regulations to account for the new requirements, including updating procedures regarding excused absences. Districts should also Amend notices to pupils and parents to include the newly required notifications, including notification of rights and options of pregnant or parenting pupils, and notices regarding additional grounds for filing complaints under the UCP. Finally, districts should consider any necessary training for staff regarding these changes.

If you have any questions regarding AB 2289 or about student rights generally, 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

Michelle N. Sliwa

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 on Enrollment Offer Students More Flexibility and Stability and Require Website Posting by January 1, 2019

December 2018
Number 88

Through Assembly Bills (AB) 2826 and 2949, California lawmakers demonstrated a concerted effort to make the interdistrict transfer process more accessible to families, as well as provide additional protections to students of military families, who are often subject to frequent school changes.

Assembly Bill 2826 – Pupil Enrollment: Interdistrict Attendance:

AB 2826 strives to make the interdistrict transfer process more transparent and timely for families. Under the new law, which amends Education Code sections 46600 et seq., school districts have the following obligations starting on January 1, 2019:

  • Post the district’s interdistrict transfer procedures on the district’s website, including:
    • A link to the district’s policies on interdistrict transfers;
    • The date when the district will accept and process requests for the subsequent school year;
    • The reasons for approval or denial of a request;
    • Any information or documents that must be submitted as supporting evidence in a request;
    • If applicable, the process and timelines by which a denial may be appealed within the school district;
    • Notice that failure to adhere to timelines will be deemed an abandonment of the request;
    • The conditions for when an existing permit may be revoked or rescinded; and
    • Applicable timelines for processing a request, including those set out below.
  • Process Interdistrict Transfer Requests as follows:
    • Notify the parent submitting a current year request of its final decision within 30 calendar days of receipt;
    • Notify the parent submitting a future year request of its decision as soon as possible, but no later than 14 days after the start of the instruction in the school year for which the transfer is sought;
    • Provide written notice of the parents’ right to appeal to the county board of education within 30 calendar days from the final date of a denial;
    • Provisionally admit students to a requested district, based on their evidence that a final decision is pending with a district of residence, proposed district, or county board of education.

Assembly Bill 2949 – Pupil Residency: Pupils of Military Families:

Existing law provides an exception to the residency requirements for a student whose parent is transferred to or is pending transfer to a military installation within the state while on active military duty pursuant to an official military order. AB 2949 adds section 48204.6 to the Education Code to require a local educational agency to permit a student who meets certain criteria to continue attending the student’s “school of origin” during that school year, regardless of any change of residence of the military family. If the student’s status changes due to end of military service, then the student is allowed to stay in the school of origin for the remainder of the academic year if he or she is between grades 1-8, or through graduation if the student is enrolled in high school. The new law effectively mirrors the laws related to protecting foster youth and homeless children, who are also susceptible to frequent school changes.

Takeaways

By January 1, 2019, school districts must post the required interdistrict transfer policies and information on their website. School districts must also ensure compliance with the new response timelines and notice of parent’s right to appeal a transfer denial.

Local educational agencies must permit students of military families to continue to attend their schools of origin, despite changes in residence and changes in military status. Local educational agencies may seek appropriate reimbursement to comply with these provisions, consistent with the state’s rules of reimbursement for mandated costs.

If you have any questions about AB 2826 or 2949 or about laws applicable to local educational agencies 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:

Ruth E. Mendyk

Partner

Nicholas G. Felahi

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 Law Limits School District Collection of Debts from Students and Penalties for Debts

December 2018
Number 85

The California Legislature recently passed Assembly Bill (AB) 1974, which places new prohibitions and restrictions on the collection of debt owed by parents to public schools, including state special schools and charter schools, and school districts, including county offices of education (all referred to herein as school districts). The new law prohibits the practice of punishing students for the failure of their parents to pay debt owed to the school district, adds additional requirements for the collection of student debt, prohibits the sale of such debt, and allows school districts to offer alternative, nonmonetary forms of payment to settle the debt. Importantly, the new law will not impact existing law regarding the imposition of charges for willfully damaged school property or failing to return loaned school property, or the consequences of not paying those charges.

Background

Parents are responsible for the fees and debts incurred by their minor child. School districts can no longer take negative actions against students for their parents’ failure to pay debt. While parents may still be held accountable for the failure to pay permissible student fees (such as fees for transportation to and from school), the student cannot. Schools districts are now barred from imposing the following consequences as a result of the unpaid debt:

  • Denying full credit for any assignments for a class;
  • Denying full and equal participation in classroom activity;
  • Denying access to on-campus educational facilities, including, but not limited to, the library;
  • Denying or withholding grades, transcripts, or a diploma;
  • Limiting/barring participation in an extracurricular activity, club, or sport; and
  • Limiting or excluding from participation in an educational activity, field trip, or school ceremony.

Significantly, the new restrictions do not apply to “debt owed as a result of vandalism or to cover the replacement cost of public school or school district books, supplies, or property loaned to a pupil that the pupil fails to return or that are willfully cut, defaced, or otherwise injured.” This exception relates directly to Education Code section 48904, which permits the imposition of charges under such circumstances, and so long as adequate due process is provided to the student, authorizes the withholding of grades, diploma, and transcripts of a student where the charge has not been paid. The above exception does not apply to a student who is a current or former homeless youth, or current or former foster youth. As such, school districts must ensure against imposition of consequences against these categories of students, even where the debt is imposed for school property which is not returned or willfully damaged.

AB 1974 imposes the following requirements when collecting the debt from parents owed to the school district:

  • Provide an itemized invoice for any amount owed by the parent or guardian before pursuing payment of the debt;
  • Provide a receipt to the parent or guardian or former student for each payment made to the school or district for any amount owed by the parent or guardian on behalf of the student or former student; and
  • The invoice must include references to school policies relating to debt collection and the rights established under Education Code sections 49014 and 49557.5.

In addition, the school district may offer the student or former student, with the permission of the parent or guardian, alternative, nonmonetary forms of compensation to settle the debt. This alternative must be voluntary and conform to all Labor Code provisions. Further, a school district is prohibited from selling the debt owed by a parent or guardian. Finally, the school district may still contract with a debt collection agency to collect the debt, but the debt collection agency cannot report the debt to a credit agency.

Takeaways

When AB 1974 goes into effect on January 1, 2019, public schools, including state special schools and charter schools, school districts, and county offices of education, will not be able to take negative actions against a student, or former student, for debts owed by the student’s parent or guardian-with the exception of debt imposed as a result of vandalism or for failure to return school property, which is itself limited relative to current or former homeless youth, or current or former foster youth. As school districts and county offices of education look forward to 2019, a review of existing debt-collection practices is recommended, which may lead to the need to modify, establish or eliminate existing policies
and practices to ensure compliance with this new law.

For more information about AB 1974 or about school fees 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.