California Recognizes “Nonbinary” Gender Category And Requires Certain State Agencies To Collect Sexual Orientation And Gender Identity Data

April 2019
Number 22

The California Legislature recently passed legislation, taking effect in 2018 and 2019, making it easier for individuals to change their gender identity on official documents, adding a new gender identity option to certain forms of identification and vital records, and requiring certain state and local agencies to change data collection practices so that gender identity is more accurately accounted for in demographic data.

Assembly Bill (AB) 677: Sexual Orientation and Gender Identity Data Collection

Current law requires specific state departments, in the course of collecting certain demographic data, to collect voluntary self-identification information pertaining to sexual orientation and gender identity. AB 677 expands the list of state entities that must comply with these data collection requirements to include, among others, the California Department of Education (CDE). CDE must comply with the requirements as early as possible, but not later than July 1, 2019.

Additionally, AB 677 prohibits public schools administering a voluntary survey from removing any question pertaining to sexual orientation and/or gender identity. This prohibition became effective January 1, 2018. Under prior law, public schools were permitted to remove any question regarding sexual orientation and/or gender identity from voluntary surveys.

Senate Bill (SB) 179: Male, Female and Nonbinary Gender Markers

SB 179, also known as the Gender Recognition Act, was signed into law by Governor Jerry Brown and went into full effect on January 1, 2019. (See 2018 CNB No. 13.) Now, for the first time in state history, California legally recognizes a third gender option for individuals who do not identify as either male or female. Specifically, California residents may choose from three equally recognized gender options – female, male, or nonbinary – on birth certificates, driver’s licenses, and other state-issued identification cards.

Additionally, the law eliminates previous barriers for individuals wanting to change their gender marker and name on these identifying documents. Under prior law, an individual was required to obtain a physician’s declaration confirming that the individual had undergone clinically appropriate treatment for the purpose of gender transition in order to obtain a new birth certificate or to petition for a court order confirming the individual’s name and gender identity. With the passage of the Gender Recognition Act, a physician’s declaration is no longer required. Instead, individuals seeking a new birth certificate or court order confirming their name and gender identity may submit an affidavit attesting, under penalty of perjury, that the request for a change of gender is to conform to their gender identity and not for any fraudulent purpose. Minors may also petition the court for an order confirming gender identity with the support of a parent or legal guardian.

The law does not affect documents issued by other states or the federal government, such as Social Security cards, passports, and documents issued by US Citizenship and Immigration Services.

Takeaways

School districts, community colleges, and other public agencies will need to review and potentially revise forms, documents, and policies to ensure compliance with the Gender Recognition Act.

For additional information regarding AB 677 and SB 176 or to discuss student rights and gender 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 subscribe to our podcast, follow us on Facebook, Twitter and LinkedIn or download our mobile app.

Written by:

Gabriela D. Flowers

Partner

Courtney de Groof

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.

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2019 Updates: Annual Notice Of Parental Rights And Responsibilities

April 2019
Number 21

California school districts and county offices of education are required annually, at the beginning of each school year, to provide written notice of parental rights and responsibilities. Lozano Smith continuously tracks legislation impacting these notices. The following summarizes changes in California law that call for mandatory or optional updates to the Annual Notice of Parental Rights and Responsibilities (Annual Notice).

Discrimination Based on a Student’s Parental, Family, or Marital Status

Assembly Bill (AB) 2289 took effect on January 1, 2019 and, among other things, added Education Code section 221.51, which prohibits Local Educational Agencies (LEAs) from applying any rule concerning a pupil’s actual or potential parental, family, or marital status that treats pupils differently on the basis of sex. Annual Notice non-discrimination provisions should be updated to include language prohibiting discrimination based on a student’s actual or potential parental, family or marital status.

Pregnant and Parenting Student Rights

AB 2289 also requires LEAs to provide: (1) notice to pregnant and parenting students of their rights and options through annual welcome packets and independent study packets; and (2) annual notice to parents and guardians at the beginning of the school year of the rights and options available to pregnant and parenting students. (Ed. Code § 222.5.)

These rights include, but are not limited to, the right of pregnant or parenting students to:

  • not be treated differently on the basis of sex;
  • participate in educational and extracurricular activities, if physically and emotionally able to participate;
  • not be required to participate in pregnant minor programs or alternative education programs;
  • have their pregnancy, childbirth, false pregnancy, termination of pregnancy, and recovery therefrom treated in the same manner and under the same policies as any other temporary disabling condition;
  • voluntarily take eight weeks of parental leave, or more if deemed medically necessary by the student’s physician;
  • not be required to complete academic work or other school requirements while on parental leave;
  • return to the school and the course of study in which the student was enrolled before taking parental leave or to instead elect to participate in an alternative education program; and
  • not incur an academic penalty as a result of the use of these accommodations.

A complaint of noncompliance with these requirements may be filed under the LEA’s Uniform Complaint Procedures.

Parenting Students/Excused Absences to Care for a Sick Child

AB 2289 also amended Education Code section 48205, subsection (a)(6), to allow parenting students to be absent from school to care for a sick child without a doctor’s note. (See Client News Brief Number 91 from December 2018.) The mandatory Annual Notice excused absences provision under Education Code section 48205 will need to be revised to include student absences during school hours to care for a sick child for which the school may not require a doctor’s note.

Coursework and Graduation Requirements for Migratory and Newly Arrived Immigrant Students

Foster youth, homeless students, former juvenile court school students, and children living in active duty military households are exempted from a number of coursework requirements for graduation. Assembly Bill (AB) 2121 took effect on January 1, 2019 and extends those exemptions to “currently migratory children,” which is defined as including children who have recently moved with a parent, guardian or other person having custody, from another state or from one California school district to another in order for the child or a member of the child’s immediate family to secure temporary or seasonal employment in an agricultural or fishing activity, as defined below, and whose parents or guardians have been informed of the child’s eligibility for migrant education services.

  • “Agricultural activity” means any activity directly related to the production or processing of agricultural products and the cultivation or harvesting of trees; and
  • “Fishing activity” means any activity directly related to the catching or processing of fish or shellfish for initial commercial sale or as a principal means of personal subsistence.

(Ed. Code § 54441, subd. (c) and (d).)

AB 2121 also extends these exemptions to students in their third or fourth year of high school who are participating in a newcomer program, which is a program designed to meet the academic and transitional needs of newly arrived immigrant students, with the development of English language proficiency as the primary objective. (Ed. Code §§ 51225.1, subd. (a) and 51225.2, subd. (a)(6).) (See Client News Brief Number 83 from December 2018.)

Students in Military Families/Residency Retention and Matriculation

LEAs must permit students of military families to continue to attend their schools of origin, despite changes in residence and changes in military status. AB 2949 added Education Code section 48204.6, which allows a student living in the household of an active duty military service member to continue attending the student’s school of origin for the remainder of the school year if the family moves or if the parent or guardian’s military service ends during the school year, and allows the student to matriculate with his or her peers in accordance with the established feeder patterns. (See Client News Brief Number 88 from December 2018.)

AB 2949 mirrors the laws related to protecting foster youth and homeless students, who are also susceptible to frequent school changes. This is a mandatory provision pursuant to Education Code section 48980, subsection (g), which requires that the Annual Notice include all options for meeting residency requirements for school attendance.

Home, Hospital and Residential Health Facility Instruction for Students with Temporary Disabilities

AB 2109 amended Education Code sections 48206.3 et seq. to require that a student whose temporary disability makes school attendance impossible or inadvisable, receive individual instruction either: (1) at home, provided by the school district in which the student resides; or (2) in a hospital or other residential health facility, excluding state hospitals, provided by the school district in which the hospital or residential health facility is located. (See Client News Brief Number 3 from January 2019.)

The Annual Notice must give parents notice of the availability of this individual instruction and information regarding eligibility for, and the duration of, individual instruction.

Access to Student Mental Health Services

AB 2022 added Education Code section 49428, which requires school districts and charter schools to provide students and their parents and guardians with information at least twice per school year 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. Parents and guardians must be given this information in at least two of the following formats: (1) by electronic or hardcopy letter; (2) in the parent handbook distributed at the beginning of the school year; and/or (3) via the school’s website or social media page. (See Client News Brief Number 92 from December 2018.)

Students must be given this information in at least two of the following formats: (1) by electronic or hardcopy document or school publication; (2) in the student orientation materials distributed at the beginning of the school year or a student handbook; and/or (3) via the school’s website or social media page.

Student Financial Aid Information

AB 2015 added Education Code section 51225.8 and requires that commencing with the 2020-2021 school year, student financial aid information be provided at least once before students enter 12th grade. This new law gives school district governing boards discretion regarding how they choose to disseminate student financial aid information and while this information could be added to the Annual Notice, we recommend that it be disseminated separately to all eligible students by school counselors.

The information provided must include, but not necessarily be limited to, material related to all of the following:

  • The types of documentation and personal information that each student financial aid application requires, including, but not necessarily limited to, documents relating to income taxes, finances and income, college choices, academic status, and personal identification such as social security or taxpayer identification numbers.
  • An explanation of definitions used for each application. These definitions may include, but are not necessarily limited to, definitions of “legal guardianship,” “household size,” “parent,” “dependent,” and “taxable college grants and scholarships.”
  • Eligibility requirements for student financial aid that may be applied for using the Free Application for Federal Student Aid (FAFSA) or the California Dream Act Application.
  • Application timelines and submission deadlines.
  • The importance of submitting applications early, especially when student financial aid is awarded on a first-come, first-served basis.

A paper copy of the FAFSA or the California Dream Act Application must be provided to each student, upon a student’s request or upon request by the student’s parent or guardian.

Any information shared by parents, guardians, and students related to financial aid eligibility must be handled according to applicable state and federal privacy laws and regulations.

Lozano Smith regularly reviews and updates Annual Notices for LEAs around the state. Such revisions involve either an update to last year’s Annual Notice to account for changes in the law within the past year, or a more comprehensive review to covering changes in the law over the past several years and/or changes in an LEA’s own policies and practices. If you are interested in any of the annual review services that Lozano Smith provides, 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:

©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.

California Passes New Laws to Protect Student-Athletes AED’s Required by July 1, 2019

February 2019
Number 13

In the wake of several high profile deaths of high school student-athletes, California recently enacted two new laws aimed at improving school responses to heart and heat-related emergencies involving students.

Assembly Bill (AB) 2009

Given that sudden cardiac arrest (SCA) is a leading cause of death among young athletes, AB 2009 requires school districts and charter schools that offer interscholastic athletics to have written, posted emergency action plans in place and to acquire at least one automated external defibrillator (AED) for each school.

Between 2009 and 2011, 42 young athletes died in California as a result of their participation in athletics. Nineteen of those deaths were attributed to SCA. Studies cited by the American Heart Association have shown that, if defibrillated within the first minute of collapse, an SCA victim’s chances of survival are close to 90%, decreasing by 7% to 10% for each additional minute that passes. After 10 minutes, the rate of survival among adults is less than 5%.

Virtually every coach in California is already trained in the use of AEDs, but currently only 75% to 80% of high schools have an AED, many of which are not available to athletic personnel in the afternoon. Beginning onJuly 1, 2019, school districts and charter schools will need to ensure that each school in the district has at least one AED, and are encouraged to make the devices available to render emergency care or treatment to pupils, spectators, or other attendees within the recommended three to five minutes. Again, while schools are encouraged in this regard, they are required to ensure that AEDs are available to trainers and coaches at on-campus athletic events and during athletic instruction.

AB 2009 requires schools to ensure that their AEDs are maintained and regularly tested according to operation and maintenance guidelines set forth by the manufacturer, the American Heart Association, Red Cross, and the FDA. AB 2009 also further extends the general exception from civil liability afforded to those who reasonably attempt to render aid by using an AED, to school districts, charter schools and their employees.

Assembly Bill 2800

According to the Centers for Disease Control, heat illness during athletic practice or competition is also a medical risk and cause of death for student-athletes. This health risk is higher for student athletes participating in high-intensity and long-duration or repeated same-day sports practices during the summer months. It has been reported that between 1995 and 2014, 42 high school football players died of exertional heat stroke nationwide, with two California students passing away from heat illness last year alone.

Assembly Bill 2800 adds heat illness awareness to the California High School Coaching Education and Training Program. Existing law declares the Legislature’s intent that interscholastic athletic coaches should receive training on a number of topics, including coaching philosophies, sports psychology and physiology, CPR and first aid certification, and the signs, symptoms, and appropriate response to concussions. Prior to AB 2800, training in the areas of heat illness and heat stroke was not required.

AB 2800 adds a basic understanding of the signs and symptoms of, and appropriate responses to, heat illness, to the High School Coaching Education and Training Program. Separate from AB 2800, for those secondary schools which are members of the California Interscholastic Federation (CIF), CIF bylaws require training for any coach who is required to be fingerprinted and/or is approved by their local school board or board of directors to have contact with students, and such CIF training certification requirements include training related to concussions, SCA, and heat acclimatization. AB 2800’s heat illness training requirements may be fulfilled through, including but not limited to, CIF coach training certification, or by entities offering free, online, or other types of training courses.

Takeaways

School districts and charter schools that offer athletic programs must obtain at least one AED, and create or update a written emergency action plan which describes procedures to be followed in the event of medical emergencies related to athletic activities or events. The written plan should be posted, at a minimum, at all venues and be easily accessible to anyone involved in carrying out the plan. In addition, school districts and charter schools should review existing policies and procedures regarding training requirements for athletic coaches to ensure that coaches are appropriately trained on identifying and responding to symptoms of heat illness.

For more information on these bills or any other legislation, 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 E. Gauthier

Partner

Kyle 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.

Settlement Addresses Discriminatory Treatment of Minority Students and Students with Disabilities

February 2019
Number 11

A settlement agreement was recently reached between the California Department of Justice (DOJ) and the Stockton Unified School District (District) to address discriminatory treatment of minority students and students with disabilities. The agreement resolves a comprehensive investigation conducted by the DOJ, which found that the District’s policies and practices with respect to law enforcement referrals discriminated against African-American and Latino students as well as students with disabilities.

According to the investigation, it identified certain practices by the District which led to students being criminalized for minor misconduct. These practices included:

  • Using law enforcement for minor disciplinary infractions that are more appropriately the responsibility of school administrators and teachers;
  • Operating a canine inspection program where canines were brought to school sites on a random and suspicionless basis and students were directed to leave their belongings in the classroom without their consent to be sniffed by canines. Though the District’s Board Policy included that students could not be required to leave their belongings, the investigation by the DOJ found that in practice, students had no choice;
  • School administrators conducting classroom-wide random, suspicionless pat-down searches of students’ persons;
  • Having law enforcement cite or book students for truancy or disturbing the peace violations;
  • School administrators not being properly trained in and utilizing de-escalation techniques for preventing student behavior that may lead to the use of physical restraints; and
  • Failing to ensure effective communication in the context of law enforcement investigations for students who are hard-of-hearing or deaf.

To address these concerns by the DOJ, the parties worked cooperatively to agree on an extensive five-year plan memorialized in a stipulated judgment that requires the District to create clear policies and procedures with respect to how and when school administrators refer students to law enforcement as well as a formal diversion program to address minor school-based criminal offenses which will minimize arrests, citations and bookings. A copy of the proposed judgment can be viewed here. The agreement also calls for the revision of policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, including hiring a disability coordinator at the police department that will ensure compliance with disability laws and creating a protocol for school site administrators to refer students who exhibit mental health indicators to services rather than to law enforcement. Additionally, the District agreed to train all officers (in this case, the officers were employees of the District’s Police Department) on crisis-intervention as well as provide extensive training on the constitutional and civil rights of all students. Lastly, the District agreed to track and analyze all arrests and referrals of students to law enforcement, and create a community advisory committee for oversight.

The takeaways from this agreement can be summarized as follows:

  • Districts should review their policies with respect to how and when school site administrators refer students to law enforcement and consider creating a diversion program for minor, school-based criminal offenses;
  • Districts should review their policies and procedures relating to the treatment of students with disabilities in order to prevent discrimination, and may consider hiring a trained disability coordinator to ensure compliance with disability laws;
  • Districts should review their current search and seizure policies to make sure they conform with current laws and constitutional standards.

For more content related to school safety and School Resource Officers, check out this episode of Lozano Smith’s podcast.

If you have any questions regarding this settlement agreement or student rights issues 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:

Manuel F. Martinez

Partner

Benjamin Brown

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 Agencies Withdraw Previously Issued Guidance On The Nondiscriminatory Administration Of School Discipline

February 2019
Number 9

The United States Department of Education’s Office for Civil Rights (OCR) and Department of Justice (DOJ) have withdrawn their 2014 joint Dear Colleague Letter (DCL) on Nondiscriminatory Administration of School Discipline, which provided recommendations and guidance on remediating disproportionate student discipline of minority and disabled students. The stated justification for the agencies’ reversal is that implementation of the 2014 DCL resulted in schools easing up on punishment for student misconduct and contributed to rising violence in the nation’s schools.

Background: 2014 DCL

In 2014, under the Obama administration, the non-binding discipline guidance DCL (See 2014 Client News Brief No. 7] was published pursuant to the OCR’s responsibilities for implementing Title VI of the Civil Rights Act of 1964 and the DOJ’s responsibilities for implementing Title IV of the Civil Rights Act of 1964, respectively. The stated goal of the 2014 DCL was to break or slow the cycle known as the school-to-prison pipeline, by prodding schools to reduce the number of suspensions and expulsions, especially for students of color and students with disabilities which data shows are disciplined at disproportionately high rates. The 2014 DCL set forth guidelines for measuring for disproportionality in the discipline of minority students and students with disabilities, and recommended practices for reducing or eliminating such disproportionality. The 2014 DCL also included instructions on how to “reduce disruption” without discriminating against students according to “personal characteristics,” as well as guidelines for designing school discipline-related policies and practices which emphasize alternatives to suspension and expulsion.

Guidance Withdrawn

In 2018, U.S. Department of Education Secretary Betsy DeVos led a new Federal Commission on School Safety, established after the deadly school shooting at Marjory Stoneman Douglas High School in Parkland, Florida. The new commission’s task was to study and make recommendations regarding several issues, including violence prevention strategies. On December 18, 2018, the commission recommended the rescission of the 2014 DCL, along with other associated documents, including:

The commission reasoned that states and local school districts should play the primary role in establishing educational policy, including how to handle specific instances of student misconduct and discipline, and ensuring that classroom teachers have the support they need to implement such local policies. OCR and the DOJ adopted the commission’s recommendations.

Takeaways

The rescission of the non-binding 2014 DCL and related federal guidance does not change any federal civil rights laws. It also does not change states’ or school districts’ obligation to administer school discipline in a non-discriminatory way, whether as a matter of federal or state law. School districts that continue to find value in the now-withdrawn guidance documents may continue to refer to and utilize that guidance and recommended policies and practices as they see fit.

If you have any questions about the guidance rescission, please contact the author 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

Marisa Montenegro

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 OCR Case Processing Manual – Significant Changes For Public School Civil Rights Enforcement

January 2019
Number 5

The U.S. Department of Education’s Office for Civil Rights (OCR) made a second round of revisions to its Case Processing Manual (CPM), effective November 19, 2018. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws which it enforces. The CPM last underwent revisions in March of 2015 and March of 2018. The most recent changes are wide ranging and include how OCR will evaluate, investigate and resolve complaints. Key revisions include the following:

  • Requires OCR to interpret its statutes and regulations consistent with the requirements of the First Amendment, and to comport with the First Amendment when investigating and resolving complaints. This means that
    OCR will not interpret any statute or regulation to impinge upon rights protected under the First Amendment or to require recipients to encroach upon the exercise of such rights;
  • Restores appeals for complainants, who can appeal findings of insufficient evidence, as well as certain types of dismissals, and provides recipients with the opportunity to respond to appeals;
  • Eliminates section 108(t) from the earlier CPM, which had provided that OCR would dismiss a complaint that is part of a pattern of complaints that places an unreasonable burden on OCR’s resources; and
  • Requires OCR to have more than statistical data alone to warrant opening an investigation. Statistical data can be considered with other facts and circumstances to support the opening of an investigation.

The November 2018 CPM revision also retained several important changes fromits March 2018 revision such as:

  • Investigation and resolution activities must focus on the individual allegation(s) stated by the complainant;
  • OCR will undertake systemic investigations only where it is appropriate to do so in light of the allegations or based on facts ascertained in the investigation; and
  • A focus on increased opportunities for the resolution of complaints through the Rapid Resolution Process (RRP) and the Facilitated Resolution Between the Parties (FRBP) process, which permit the parties to resolve a complaint themselves with OCR’s facilitation.

Lastly, OCR is implementing post-case closure Quality Assurance Reviews to assure consistency and quality in case processing among the 12 regional OCR offices. OCR will use the reviews to identify areas where further internal training is necessary, and to identify and share best practices among its regional offices.

Takeaways

The revised CPM will likely impact current and future investigations conducted by OCR. School districts can also expect OCR to be more receptive to defenses to complaints of bullying, discrimination, harassment etc., where the defense is based on free speech. While it is unclear how each regional office will interpret the changes to the CPM, school districts currently dealing with a civil rights complaint investigated by OCR should consult with counsel to determine whether the revisions are relevant to the matter.

For additional information regarding OCR’s November 2018 CPM revision, 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

Brenda E. Arzate

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 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.