Proposed Amendments to CalSTRS Creditable Compensation Regulations Have LCAP Implications

May 2017
Number 26

Proposed amendments to the California State Teachers’ Retirement System (CalSTRS) creditable compensation regulations would allow employers to establish a class of employees based upon employment in a program established under a Local Control and Accountability Plan (LCAP). The proposed amendments modify the CalSTRS creditable compensation regulations that came into effect on January 1, 2015.

CalSTRS member benefits are based in part on the “creditable compensation” paid during a defined period of months during a member’s career. Creditable compensation consists of “base salary” and certain types of “remuneration
in addition to salary” paid in cash to the employee by a CalSTRS employer to all persons in the same “class of employees” for performing creditable service in that position. A class of employees is typically established in
one of two ways: (1) the CalSTRS members are employed to perform similar duties; or (2) the CalSTRS members are employed in the same type of program. (Ed. Code, § 22112.5; Cal. Code Regs., tit. 5, § 27300.) Currently, the regulations define a “program” as any educational program established pursuant to state or federal law. (Cal. Code Regs., tit. 5, § 27300, subd. (a)(2)(A).)

The proposed amendments expand the regulatory definition of a “program” to include a local educational program established under an LCAP. This change is significant because employees in different programs can be in different
classes even if they perform similar duties. If employees in an LCAP program are treated as a separate class, they could have a longer work day, a different work year, and potentially a separate salary schedule that recognizes additional hours or days worked with a higher base salary.

Creating a separate salary schedule for employees in an LCAP program could eliminate the need to compensate those employees for extra work in the program through a stipend. This could also make clear that the additional days or hours are part of the base work year for the separate class and therefore all related earnings would be creditable to the defined benefit plan. As currently structured, many stipend payments ultimately end up credited to the member’s defined benefit supplement account because the additional service for which the stipend is paid is considered “service in excess of a year.”

If the CalSTRS Teachers’ Retirement Board adopts the proposed amendments, employers that wish to place CalSTRS members employed in LCAP programs in separate classes and utilize separate salary schedules will need to consider legal implications such as members’ collective bargaining rights and uniform salary schedule requirements. The public comment period for the proposed amendments ended on April 25, 2017. The board may review the proposed amendments for adoption as early as June 2017. For a copy of the modified text of the proposed regulations, click here.

For a copy of Lozano Smith’s co-authored article with ACSA explaining the 2015 creditable compensation regulations in greater detail, click here.

Lozano Smith continuously tracks the CalSTRS regulatory process and precedential CalSTRS decisions. If you have any questions about the new CalSTRS creditable compensation regulations or how retirement law governs public schools and their employees, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven A. Nunes


©2017 Lozano Smith

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

California Supreme Court Clarifies Use of Anti-SLAPP Motions

May 2017
Number 25

A new California Supreme Court ruling clarifies how litigants may use a tool intended to fight lawsuits filed to chill free speech. InPark v. Board of Trustees of the California State University (May 4, 2017, No. S229728) ___Cal.5th___ (Park), the Court clarified and simplified the analysis for determining whether a plaintiff’s cause of action is one “arising from” constitutionally protected activity for purposes of a motion to strike a civil complaint on the basis that it constitutes a “strategic lawsuit against public participation” (SLAPP).

Anti-SLAPP motions are intended to dispose of malicious or frivolous lawsuits filed to chill protected activities like speech and petition rights in the early stages of litigation. In addition to ending a case quickly, a successful anti-SLAPP motion carries the potential for recovery of attorney fees.

An anti-SLAPP analysis is a two-step process. First, the defendant must establish that the challenged claim arose from the defendant’s protected activity. If so, the burden shifts to the plaintiff to show that his or her claim has at least “minimal merit.” Because the Court found that the plaintiff’s lawsuit did not arise from the university’s protected activity, it did not reach the second step in the analysis.

Plaintiff Sungho Park was a tenure-track assistant professor at California State University. After Park’s application for tenure was denied, he filed a civil lawsuit alleging discrimination. The university moved to strike Park’s complaint, arguing that the decision to deny tenure, and the numerous communications that led up to and followed the decision, are constitutionally protected communications. Because the tenure decision arose from these communications, the university argued, Park would have to show there was merit to his claim to overcome the motion.

The trial court denied the university’s motion and allowed the lawsuit to continue, but a divided Court of Appeal reversed. The Supreme Court reversed the Court of Appeal opinion, noting that although certain aspects of the tenure process are constitutionally protected, Park’s claim did not arise from those activities but from the act of denying tenure. The communications may have provided evidence of discrimination, the Court determined, but they were not an essential element of Park’s claim.

The Supreme Court, which found the Court of Appeal’s decision to be “symptomatic of ongoing uncertainty” over how to determine when a cause of action arises from protected activity under the anti-SLAPP statute, directed courts deciding anti-SLAPP motions to consider the elements of a plaintiff’s claim, and what actions by the defendant form the basis for liability. If a protected activity is nothing more than evidence in support of a claim, an anti-SLAPP motion will fail. If it is an actual element of a
claim, the first step of the anti-SLAPP analysis may be satisfied.

An anti-SLAPP motion remains a powerful tool for fighting lawsuits in which a plaintiff bases his or her claim on protected speech or petitioning activity (typically, litigation). But the party filing a motion to strike must be assured that the protected activity is the basis for a plaintiff’s claims.

For more information on the Park decision or the potential uses of an anti-SLAPP motion, please contact the authors of this Client News Brief or an attorney at one of our nine officeslocated statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Nancy G. James

Of Counsel

©2017 Lozano Smith

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

2017 Annual Notice of Parental Rights and Responsibilities Updates

April 2017
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 inCalifornia law requiring updates for the 2017-2018 annual notice.

Excused Absence to Attend Student’s Naturalization Ceremony

Assembly Bill (AB) 1593 amended Education Code section 48205, adding a student’s attendance at their naturalization ceremony to the list of authorized excused absences, which is statutorily required to be included in the annual notice. (Ed. Code, § 48980, subd. (a).) (See 2016 Client News Brief No. 48.)

Residency for Children of Military Service Members

Senate Bill (SB) 1455 provides that a student complies with a school district’s residency requirements for school attendance if the student’s parent is transferred or is pending transfer to a military installation within the boundaries of the school district while on active military duty pursuant to an official military order. In such circumstances, districts must accept applications by electronic means for enrollment, including enrollment in a specific school or program within the district, and for course registration. In this situation, the parent must provide proof of residency within 10 days after the published arrival date provided on official documentation. This annual notice provision only applies to school districts that have military installations within their boundaries. (Ed. Code, §§ 48204.3, 48980, subd. (h).) (See 2016 Client News Brief No. 70.)

Graduation Requirements for Former Juvenile Court School Students/Student’s Right to File a Uniform Complaint

AB 2306 amended Education Code section 51225.2 to enable former juvenile court school students, who have transferred into a school district from a juvenile court school after their second year of high school, to earn their high school diplomas more quickly. School districts and county offices must exempt these students from local graduation requirements that exceed state requirements and grant such students credit for courses taken while in juvenile court school. AB 2306 also allows juvenile court school students
to file complaints of noncompliance under the school district or county office’s Uniform Complaint Procedures. This change in the law impacts annual notice requirements relative to the Uniform Complaint Procedures. (See 2016 Client News Brief No. 70.)

Transfer of Student Convicted of a Violent Felony or Misdemeanor

SB 1343 allows school district governing boards to adopt a policy to transfer students who have been convicted of violent felonies and designated misdemeanors to another school within the district, if the offending student and the victim of the crime are enrolled at the same school and if certain requirements are satisfied. If a school district adopts such a policy, it must include notice of the policy in its annual notice. This provision applies to school districts, but not to county offices. (Ed. Code, §§ 48929 and 48980, subd. (n).)

Cal Grant Program/Student Opt-Out Deadlines

AB 2908 enacted new deadlines for students and parents and guardians to opt out of the Cal Grant program. Districts must now give written notice annually, by January 1, to 11th graders and to their parents, that students will be automatically deemed Cal Grant applicants unless the student, or the student’s parent or guardian if the student is a minor, opts out by a deadline, which may not be less than 30 days from the date of the notice. (Ed. Code, § 69432.9, subd. (d)(1).)

Anti-Seizure Medication Administration

Former Education Code section 49414.7 allowed the parents of students with epilepsy who have been prescribed an emergency anti-seizure medication to request that their child’s school have one or more of its employees receive voluntary training in the event that their child suffers a seizure when a nurse is not available. Although Education Code section 49414.7 was repealed by its own terms on January 1, 2017, parents still have the right to request assistance with the administration of medication, including prescribed emergency anti-seizure medication, to their children under Education Code section 49423. Parents must provide their written authorization and a note from a physician, surgeon or physician’s assistant with instructions for administering the medication. Districts and county offices of education should contact their legal counsel regarding whether these developments and the current state of the law on this subject require revision to their annual notice.

Language Acquisition Programs

California voters approved Proposition 58 in November 2016. This proposition repealed most of Proposition 227, the “English in Public Schools” ballot initiative, which generally required English learners to be taught in English and restricted the use of bilingual programs. Under Proposition 58, schools are no longer required to teach English learners in English-only programs, and may use a variety of programs, including bilingual programs, to teach their English learners.

Effective July 1, 2017, Education Code section 310 will require that when the parents or guardians of 30 or more students in a school, or the parents or guardians of 20 or more students in any grade level at a school, request a language acquisition program, the school must offer the language acquisition program to the extent possible once various requirements are met, such as the program having been established with parental, school employee and community input.

If a district implements a language acquisition program pursuant to Education Code section 310, parents and guardians must receive notice, either as part of the school district’s annual notice or upon enrollment, containing a description of the types of language acquisition programs available to district students. This notice requirement takes effect on July 1, 2017.

We recommend that school districts and county offices of education review and update as necessary their annual notices of parental rights and responsibilities each year. Lozano Smith regularly assists in updating annual notices. For questions regarding any of the required changes discussed above, or annual notice requirements or review in general, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Mary Gates


©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.

Meet-and-Confer Requirement Does Not Apply to Pension Reform Measure Placed on Ballot through Voter Initiative Process

April 2017
Number 20

In Boling v. Public Employment Relations Board (Apr. 11, 2017, D069626) ___ Cal.App.4th ___ (Boling), the Fourth District Court of Appeal invalidated a decision by the Public Employment Relations Board (PERB) holding that a city council violated the Meyers-Milias-Brown Act (MMBA) by placing a voter initiative to amend the city’s charter on the ballot without first meeting and conferring with the unions representing affected city employees. In doing so, the court rejected PERB’s reasoning that the mayor’s public support of the initiative effectively transformed it from a voter initiative to a city council-sponsored ballot proposal subject to meet-and-confer requirements.

This case addresses a longstanding issue. In a 1984 case, People ex rel. Seal Beach Police Officers Assn. v City of Seal Beach, the California Supreme Court concluded that a charter amendment proposed by a governing body is subject to the MMBA’s requirements, but cautioned that the case did “not involve the question whether the meet-and-confer requirement was intended to apply to charter amendments proposed by initiative.” Three decades after Seal Beach, a California appellate court has addressed that question for the first time.

The Boling case traces back to a City of San Diego decision on an issue that rarely evades controversy: public employee pension plans. In 2010, the city’s mayor and a city councilmember separately announced plans to replace the city’s existing defined benefit pension plans with 401(k)-style defined contribution plans for new hires. Ultimately, supporters of the mayor’s proposal and of the city councilmember’s competing proposal joined forces to produce an initiative to adopt a charter amendment mandating changes to pension plans for new hires.

The California Constitution provides two options for proposing an amendment to a city charter: an initiative qualified for the ballot through signed voter petitions, or a ballot measure sponsored by the governing body of the city. Rather than pursuing a ballot measure sponsored by the San Diego City Council (City Council), which the mayor believed the City Council would not place on the ballot “under any circumstances,” he launched a citizens’ initiative for his pension reform proposal. The parties to the case never disputed the fact that the mayor and his staff assisted in drafting the proposal and in campaigning for the citizens’ initiative.

In the summer of 2011, proponents of the proposal circulated a voter petition to place the initiative on the ballot. Meanwhile, a municipal employees’ union wrote to the mayor and asserted that the MMBA required the city to meet and confer over the initiative before it could be placed on the ballot. The city disagreed and refused to do so. In November 2011, the county’s registrar of voters reviewed and certified the petition. Subsequently, the City Council passed a resolution of its intention to put the measure on the ballot.

In January 2012, the union filed an unfair practice charge. Other unions followed suit. Later that month, the City Council enacted an ordinance placing the initiative on the June 2012 ballot. Shortly thereafter, PERB issued a complaint against the city and ordered an expedited administrative hearing. PERB also filed a superior court action seeking a preliminary injunction to bar the city from putting the initiative on the ballot. The trial court denied PERB’s request for an injunction and the voters overwhelmingly approved the initiative in June 2012.

However, the proceedings before PERB continued and the case went to a hearing in July 2012. At the conclusion of the PERB hearing, the administrative law judge (ALJ) issued a proposed decision determining that the mayor, acting under the color of his elected office and with support of councilmembers and the city attorney, violated the MMBA by denying the unions the opportunity to meet and confer over the mayor’s decision to launch and pursue the initiative. The ALJ further determined that since the mayor was an agent of the city, and because the city ratified the mayor’s policy decision, the obligation to meet and confer extended to the city. PERB agreed and issued a decision consistent with the ALJ’s proposed decision.

The city and the initiative’s proponents filed separate petitions for writs of extraordinary relief with the Fourth District Court of Appeal challenging PERB’s decision, which the Court of Appeal consolidated for purposes of its decision.

The Court of Appeal disagreed with PERB’s conclusions and determined that the MMBA’s meet-and-confer requirement does not apply when a proposed charter amendment is placed on the ballot by citizen proponents through the initiative process. Instead, only a governing body-sponsored proposal willtrigger the meet-and-confer requirement.

Central to the court’s analysis was the principle that procedural requirements that govern city council action generally do not apply to citizen-sponsored initiatives. Unlike a charter amendment proposed by a city council, a voter-initiated charter amendment proposal must be placed on the ballot; the city council has no discretion to decide otherwise. (Elec. Code, § 9255.) In contrast, a city council’s vote to adopt a ballot proposal for submission to its voters is discretionary and is thus subject to certain procedural constraints, including the requirement to negotiate. Moreover, the court reasoned, the MMBA’s meet-and-confer provisions expressly refer to “governing body” proposals, which a voter initiative is not.

The court further determined that PERB erred when it applied legal theories regarding principal-agent relationships to transform the initiative from a citizen-sponsored initiative into a governing body-sponsored ballot proposal, even given the mayor’s role in developing and supporting the initiative. This was in part because under the express language of the city’s charter, the mayor had no authority to place a City Council-sponsored ballot proposal on the ballot without City Council approval, and there were no indicators that he obtained such approval. The court also rejected PERB’s arguments under the theories of apparent authority, respondeat superior, and ratification as legally erroneous.

This case resolves a major question regarding the balance of power between voter-driven initiatives and union collective bargaining rights, with the court deciding the issue in favor of the electoral process.

For more information on the Boling decision or a local government agency’s collective bargaining duties, please contact the authors of this Client News Brief or an attorney at one of ournine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Steven A. Nunes


©2017 Lozano Smith

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

Ninth Circuit Loosens Time Limits on IDEA Claims

April 2017
Number 19

In a case of first impression, the Ninth Circuit Court of Appeals has ruled in favor of looser time limits on Individuals with Disabilities Education Act (IDEA) claims. (Avila v. Spokane School District 81 (9th Cir.,
Mar. 30, 2017, No. 14-35965) ___ F.3d ___ < 30/14-35965.pdf>.) The Ninth Circuit’s ruling reversed a district court decision which held that some of the plaintiff parents’ claims were time-barred under a provision of the IDEA that establishes a two-year statute of limitationsbased on the date of a due process complaint.

In 2006, student G.A.’s parents requested that the Spokane School District 81 assess G.A. for special education services due to his behavior issues. The District found that G.A. did not qualify for special education services. In 2007, G.A. was diagnosed with Asperger’s disorder by a private physician and his parents asked the District to reassess him. In April 2008, the District’s psychologist found G.A. eligible for special education services under the category of autism and in February 2009, G.A.’s parents consented to an Individualized Educational Program (IEP). A year later, the District reassessed G.A. and developed another IEP. G.A.’s parents did not agree with the assessment report or the proposed IEP, and they asked the District for an independent educational evaluation (IEE). The District denied the request for an IEE and G.A.’s parents filed a request for due process hearing.

An administrative law judge (ALJ) ruled that the District’s reassessment was appropriate and that G.A.’s parents were not entitled to a publicly-funded IEE. The ALJ also ruled in favor of the District on nine procedural claims concerning the District’s alleged failure to give prior written notice and two substantive claims alleging that the District denied G.A. a free appropriate public education (FAPE) by failing to identify G.A. as a child with a disability in 2006 and failing to assess G.A. in areas of suspected disability in 2006 and 2007.

In so ruling, the ALJ determined that some of the parents’ claims were time-barred, reasoning that because their due process complaint was filed on April 26, 2010, any complaints regarding the District’s actions prior to April 26, 2008 were time-barred by a two-year statute of limitations based on the date of their due process complaint. G.A.’s parents appealed the ALJ’s decision to the district court, which affirmed the ALJ’s ruling, including the ruling regarding the IDEA’s two-year limitation on claims arising before April 26, 2008.

G.A.’s parents then appealed to the Ninth Circuit, arguing that the district court improperly applied the IDEA’s statute of limitations to their substantive claims. In addressing the issue regarding the statute of limitations, the Ninth Circuit noted that the IDEA has two conflicting sections regarding the statutory timeline to file for due process. Specifically, the provision found at 20 U.S.C. § 1415(b)(6)(B) allows parents to file a complaint for violations “that occurred not more than [two] years” before they knew or should have known about the actions that form the basis of their complaint. The second provision, 20 U.S.C. § 1415(f)(3)(C), requires a parent to file a due process complaint within two years of the date they knew or should have known about the underlying conduct. The Ninth Circuit observed that the first provision focuses more on the timing of the violation itself, while the second provision focuses more on the timing of the complaint. In an attempt to harmonize these two provisions, the court found that 20 U.S.C. § 1415(f)(3)(C), which focuses on the date of the discovery of the alleged IDEA violation, is controlling over the other IDEA provision. Thus, the Ninth Circuit remanded the case back to the district court for a determination of when G.A.’s parents actually discovered the alleged violation of the IDEA.

The Ninth Circuit’s interpretation of the IDEA means that parents must file for a due process hearing within two years of the date that they knew or should have known about the alleged action that formed the basis of their complaint. According to this decision, claims are not limited to two years preceding the date of the filing of a due process complaint. This is important for districts to keep in mind because the application of this decision means there is no “automatic” two-year bar of claims based upon the date of the filing of a due process complaint.

For more information on the Avila case or IDEA claims in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Marcy Gutierrez


Michelle Truong


©2017 Lozano Smith

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

Federal Court Holds Discrimination on the Basis of Sexual Orientation is Prohibited under Title VII

April 2017
Number 18

In Hively v. Ivy Tech Community College of Indiana (7th Cir., April 14, 2017, No. 15-1720) ___ F.3d ___ < =Display&Path=Y2017/
>, a federal appeals court evaluated whether federal antidiscrimination laws protect an individual against discrimination on the basis of sexual orientation under Title VII (42 U.S.C. § 2000e-2(a)). In a landmark decision, the court held that under Title VII, such discrimination is unlawful.

Kimberly Hively was an openly lesbian adjunct professor at Ivy Tech Community College (Ivy Tech). After unsuccessfully applying for at least six full-time positions between 2009 and 2014, and after her part-time contract was not renewed in July 2014, Hively initiated legal action against Ivy Tech alleging that she was discriminated against based on her sexual orientation in violation of Title VII. Ivy Tech filed a motion to dismiss for failure to state a claim, arguing that sexual orientation is not a protected class under Title VII. The district court agreed with Ivy Tech and dismissed the complaint, and Hively appealed.

On appeal, the circuit court was not asked to determine if Ivy Tech had actually discriminated against Hively in its decision not to hire her as a full-time professor or in its failure to renew her part-time contract. Instead, the court was tasked with addressing the scope of sex discrimination under Title VII. The court held there is no difference between a claim based on sexual orientation and those cases finding sex discrimination due to gender nonconformity, such as women not getting jobs typically held by men. The court said that “a policy that discriminates on the basis of sexual orientation does not affect every woman, or every man, but it is based on assumptions about the proper behavior for someone of a given sex.”

The court also evaluated Hively’s claim under the theory of discrimination by association, which prohibits discriminating against an individual based on the characteristics of someone with whom they associate. These characteristics include sex, race, color, national origin and religion. In association discrimination, an individual would not be suffering the adverse action had the trait in question been different for one person in the relationship (male instead of female, for example). The court analyzed this issue by using the history of interracial marriage cases to show that discrimination based on those with whom one associates is not limited to race, but is also prohibited on the basis of sex. “The logic of the Supreme Court’s decisions, as well as the common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex, persuade us that the time has come to overrule our previous cases that endeavored to find and observe that line,” the court said.

While this is a groundbreaking decision under federal law, California’s Fair Employment and Housing Act (Gov. Code, § 12900 et seq.) already explicitly prohibits employment discrimination on the basis of sexual orientation in this state. Nevertheless, this case is important because it reflects a possible shift in the federal courts’ treatment and view of employment discrimination based on sex by expanding the scope of prohibited discrimination.

It remains to be seen whether this case will be taken up to the United States Supreme Court and, if so, whether review will be granted. Lozano Smith will be closely tracking this decision for any subsequent action or associated federal legislation.

For more information on the Hively decision or anti-discrimination law in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Gabriela D. Flowers

Senior Counsel

Janae D. Lopes


©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.

IDEA Procedural Requirements Warrant a Second Look After Recent Ninth Circuit Decision

April 2017
Number 17

The Ninth Circuit Court of Appeals recently issued a decision inM.C. v. Antelope Valley Union High Sch. Dist. (9th Cir., Mar. 27, 2017, No. 14-56344) ___ F.3d ___ [2017 U.S.App. LEXIS 5347] that expanded procedural requirements in special education cases and opened the door for parents to add issues during a special education due process hearing. This decision appears to shift the balance in favor of parents’ attorneys throughout California and other Ninth Circuit states.

In Antelope Valley, the student suffered from a genetic disorder resulting in blindness and “a host of other deficits.” His parent filed for a due process hearing, taking issue with the school district’s Individualized Educational Program (IEP) documentation of “teacher of visually impaired” (TVI) services offered, the IEP’s omission of the types of assistive technology (AT) devices offered, and the lack of a 10-day response to the parent’s due process complaint, among other things. The Individuals with Disabilities Education Act (IDEA), the federal law governing special education, guarantees students with disabilities a free, appropriate public education (FAPE) and requires procedural and substantive compliance when crafting an IEP for a special education student.

Although the school district prevailed in the due process hearing and at the district court level, the Ninth Circuit overturned those decisions. In ultimately determining that the student was the prevailing party entitled to an award of attorney’s fees with regard to the most recent appeal, the Ninth Circuit came to a number of additional conclusions primed to impact those who serve special education students, while also remanding the case back to the district court for additional proceedings. The issues of note are summarized below.

Adequacy of Due Process Hearing Decision

First, the Ninth Circuit examined its standard of review of special education cases. The court decided that the duration of a due process hearing, the administrative law judge’s (ALJ) active involvement in a hearing and the length of an ALJ’s opinion issued did not necessarily determine that a “thorough and careful” fact finding had occurred. Even though the ALJ in the parties’ three-day due process hearing had questioned witnesses and wrote a detailed 21-page opinion, the Ninth Circuit found that “no thorough and careful” fact finding had occurred because the ALJ had disregarded evidence and failed to address all issues. As a result, the Ninth Circuit reviewed the entire case anew, based on the evidence in the record from the underlying due process matter.

Typographical Errors in IEP Documents and the IEP as a Contract

Second, the court concluded that a typographical error constituted a denial of FAPE, even though the error had resulted in no substantive loss of services. After the parent consented to the student’s IEP, the school district realized that it had inadvertently written in the IEP 240 minutes of TVI services per month instead of the agreed-upon frequency of per week. The school district provided at least 240 minutes of TVI services per week. The school district corrected the IEP a month later, but the parent first learned of the correction during the due process hearing. The Ninth Circuit determined that although no substantive harm may have occurred with the student receiving additional minutes of TVI services, the parent nonetheless suffered procedural harm because the mistakes necessitated the parent incurring legal fees to determine the actual level of services provided. This constituted a form of prejudice denying educational benefit.

In reaching this conclusion, the Ninth Circuit also ruled that “an IEP is a contract,” and that making a unilateral amendment is legally impermissible. When the school district in this case learned that the IEP did not reflect
the IEP team’s agreement, it was required to notify the parent and seek consent for amendment. “Absent such consent, the District was bound by the IEP as written unless it sought to re-open the IEP process and proposed a different IEP,” the court said. The “unilateral amendment” to the IEP was deemed a “per se procedural violation of the IDEA because it vitiate[d] the parents’ right to participate at every step of the IEP drafting process.”

Moreover, the court ruled that a unilateral IEP correction may serve as grounds for sanctions. Whether the school district had engaged in “mere bungling” or had deliberately attempted to mislead the parent by inaccurately recording the offer of FAPE must now be determined by the district court on remand. If it is the latter, the district court is ordered to impose sanctions on the school district sufficiently severe to deter any future such misconduct.

Monitoring and Enforcement of IEP as Part of Parental Participation

The court also concluded that the IDEA provides parents a right to participate in every step of the IEP drafting process, which includes IEP monitoring and enforcement. Although the parent had participated in drafting the student’s IEP, the typographical error obfuscated her knowledge of the actual offer made, and without knowing the actual offer, she could not adequately use the IEP to monitor and enforce the services provided. This constituted another procedural violation of the IDEA. Likewise, even though the IEP team discussed the types of AT devices offered, the school district’s failure to provide that discussion in writing “rendered the IEP useless as a blueprint for enforcement.” Thus, the failure to identify the AT devices in the IEP was an additional violation.

Shifting of Burden of Proof at Due Process Hearing

The court additionally held that failing to make a clear offer of FAPE can impact a party’s burden of proof in a due process hearing. The party alleging an IDEA violation typically bears the burden of proving that the services received did not amount to FAPE. Here, the court held that when procedural violations prevent parents from knowing the kind or duration of IEP services offered, it is impossible for them to assess the substantive reasonableness of those services, so the burden of proof must shift to the school district, even if it has not initiated the due process hearing.

Penalties for Failure to Provide Responses to Due Process Complaints

In addition, Antelope Valley has created significant penalties for school districts that fail to provide a timely 10-day response to a parent’s due process complaint. The court held that in such circumstances an ALJ must not go forward with the hearing but instead order the school district to provide a response, and “shift the cost of the delay” to the school district, regardless of the ultimate prevailing party.Antelope Valley makes it clear that a school district has an obligation to commit to a position within the first 10 days after a complaint is filed. In order for the Office of Administrative Hearings (OAH) to enforce this ruling, school districts must now provide OAH with a copy of the district’s response to the complaint.

Issues to be Tried at Due Process Hearing

Finally, after this decision, a party’s failure to object to an ALJ’s restatement of the issues will not be deemed a waiver of any issue “arguably encompassed in a due process complaint.” In this case, the school district argued that the parent had waived the issue of adequate TVI services because although alleged in the due process complaint, the ALJ had not included the issue in the subsequent framing of issues for hearing. The district court agreed, but the Ninth Circuit extended the concept that “issues are treated as if they were raised in the complaint if they are tried by consent” to the IDEA context, so as to find no waiver. In doing so, the Ninth Circuit admitted that “[w]hile we haven’t previously recognized this practice in IDEA cases, it’s often been applied in a variety of other agency adjudications … We see no reason IDEA cases should be treated differently.” Effectively, this means that any issue addressed at hearing without objection could be seen as “tried by consent,” regardless of whether it is memorialized in any statement of issues.

Antelope Valley greatly expands and shifts school district obligations. It reminds those serving special education students of the need to accurately and clearly record in an IEP the offer of FAPE made, to communicate with the parents regarding monitoring and enforcement of the IEP, and to timely respond to due process hearing requests, among other things. If it is not challenged in an expanded Ninth Circuit review or an appeal to the United States Supreme Court, this case will likely alter special education legal processes in California and the rest of the Ninth Circuit for the foreseeable future.

For more information on the Antelope Valley decision, IEP drafting, responses to due process hearing requests or special education law in general, please contact the authors of this Client News Brief or an attorney at one of our nine offices located statewide. You can also visit our website, follow us on Facebook or Twitter or download our Client News Brief App.

Written by:

Roxana R. Khan


©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.