mod2-dis-admin
shayamin
cumulativeupdate.pdf
CUMULATIVE UPDATE FOR CALIFORNIA SCHOOL LAW, SECOND EDITION
January 2013
This cumulative update for the second edition of California School Law encompasses significant
legal developments since the book was published in April 2009 through mid-December 2012. The
update may be downloaded and printed without charge. Each development is linked to the
relevant chapter and page in California School Law. Thus, readers will find it easy to scroll
through this document to find developments of particular interest. Another approach is simply to
print the update and keep it together with the book. Discard any earlier updates that you
downloaded and printed, as this update includes them.
Because many updates involve legislative changes to the California Education Code, readers who
want to consult the statutes themselves should go to the California Department of Education
website at www.cde.ca.gov and click on Laws and Regulations under the “Resources” heading.
Note that as with the book, the information herein is not intended to take the place of expert
advice and assistance from a lawyer. It is posted on the book’s website with the understanding
that neither the publisher nor the authors are rendering legal services. If specific legal advice or
assistance is required, the services of a competent professional should be sought.
This will be the last update for the second edition. The new third edition of California School
Law will be available later in the spring. When the new book is available, this cumulative update
will be removed from the book’s website and a new cumulative update will be started for the
third edition.
CHAPTER 1
LAW AND THE CALIFORNIA SCHOOLING SYSTEM
Page 18: Governor Brown Eliminates Secretary of Education Position.
Governors in the past have relied on a secretary of education within their cabinet to advise them
on education. In a cost-cutting move, Governor Brown eliminated this position in 2011.
Page 22: Efforts Are Underway to Empower Mayors Over School District Governance.
In recent years legislatures in several other states have enacted measures enabling city mayors in
specific cities to appoint some or all of the members of their city school district governing board
or otherwise influence district governance. Such an effort was tried in California in 2006 when
the legislature enacted the Romero Act to establish a Council of Mayors and a Mayor’s
Partnership in Los Angeles that together transferred powers normally possessed by the Los
Angeles Unified School District school board to Mayor Antonio Villaraigosa. These included
appointing and removing the district superintendent and taking control over three clusters of low-
performing schools. The Romero Act was declared unconstitutional by a California court of
appeal because it violated Article IX, Section 16 and Section 6 of the California Constitution.
Mendoza v. State of California, 57 Cal.Rptr.3d 505 (Cal. App. 2 Dist. 2007). Section 16 grants
charter cities the right to determine whether their boards of education are to be elected or
appointed, and the Los Angeles City Charter provides for an elected board. There are currently
120 charter cities out of a total of 478 cities in California. Section 6 provides that no public
school or any other part of the public school system is to be transferred to an authority not
included in the public school system. The system encompasses the state superintendent of public
instruction and state board of education, county superintendents and boards of education, and
local school districts with governing boards. Mayors are not included. Thus to empower mayors,
2
the constitution would have to be changed. This may be true even for charter cities if voters were
to give the mayor authority to appoint the entire school board.
Page 28: Special Consideration in Interdistrict Transfer Agreements for Victims of Bullying.
Education Code Section 46600 permitting two or more school districts to enter into an
interdistrict transfer agreement has been amended effective July 1, 2012 to give priority for
attendance if the student is determined by either the resident district or the district of proposed
enrollment to have been a victim of bullying in the resident district. The priority request must be
made by the person having legal custody of the student. Bullying is also to be taken into account
when districts consider developing an interdistrict transfer agreement.
Page 28: Legislature Expands Parent Choice by Enacting Open Enrollment Act. As noted on this page in the book, parents have a choice of schools within a school district,
subject to certain conditions. And they can enroll their children in another district if that district
accepts transfers or has an interdistrict transfer agreement with the parent’s district. To expand
interdistrict choice, the legislature enacted the Open Enrollment Act (Education Code §§ 48350-
48361) late in 2009 providing parents of children enrolled in low-achieving noncharter public
schools with the opportunity to attend higher performing schools in the district of residence or in
another district (termed the “school district of enrollment”). The act is limited to parents whose
children attend schools listed on the superintendent of public instruction’s list of 1,000 low
performing schools. The school district of residence is required to notify parents in the low-
achieving schools that they have these options.
The district of enrollment may deny admission because of lack of space and lack of funds. Except
for magnet schools and schools serving gifted and talented students, no consideration is to be
given to the student’s previous academic achievement, physical condition, English proficiency,
family income, or such characteristics as gender, religion, nationality, sexual orientation.
However, both the sending and receiving districts can limit or refuse transfers if doing so would
negatively impact a court-ordered or voluntary desegregation plan or upset the racial and ethnic
balance of the district consistent with federal and state law. If oversubscribed, students are to be
selected randomly for available spaces, though priority is to be given to those with siblings
already enrolled in the school and students coming from program improvement schools ranked in
the bottom Academic Performance Index (API) decile. Parents are to be notified within sixty days
of applying whether admission has been granted. If not, the district of enrollment must state why.
Page 29: Parent “Trigger” Act Empowers Parents in Some Low Performing Schools.
See update for page 87 below.
Page 30: Caps on Student Transfers under the Interdistrict School Choice Program.
As noted on this page, the interdistrict transfer program allows a district with fewer than 50,000
students to limit the number of students transferring out to 3 percent of its enrollment. This
percentage applies to the enrollment for the current year. Education Code Section 48307 also
provides that the district of residence may limit the maximum number of students transferring out
“for the duration of the interdistrict transfer program authorized by this article to 10 percent of the
average daily attendance for that period.” The meaning of “for that period” became a matter of
contention between the Walnut Valley Unified School District and the Rowland Unified School
District. As a district with less than 50,000 students, Rowland Unified asserted that it could deny
any further transfers of its students to Walnut Valley for the 2010-2011 school year because,
since the start of the interdistrict school choice program in 1995, it had reached the 10 percent
limit. The Rowland district was concerned that continued loss of students to other districts would
diminish its per-student funding. The Walnut Valley district argued that the term “for that period”
3
referred to the current year. The California appellate court affirmed the trial court judge’s
rejection of the argument, noting that “for that period” plainly refers to the duration of the
interdistrict choice program. The court also rejected Walnut Valley’s assertion that the beginning
of the program should be 2004 when the choice program was recodified and not 1995 when it
was originally enacted. The appellate judges noted Walnut Valley remains free to accept transfers
from other districts that have not reached the 10 percent cap. Walnut Valley Unified School
District v. Superior Court, 121 Cal. Rptr.3d 383 (Cal. App. 2 Dist. 2011).
Page 32: Statewide Charter School Option Defined.
In 2010 a California court of appeal ruled that the State Board of Education’s (SBE) approval of
Aspire Public Schools to be a statewide charter entity was contrary to the thrust of the charter
school law. In order for a statewide charter to be approved in accord with Education Code Section
47605.8 (b), the court observed that SBE must find that the entity will provide instructional
services of statewide benefit. In other words, the statewide charter option is targeted to entities
that would serve a statewide populace. It is not to be used for a charter organization that can
accomplish the same statewide benefit by operating each of its schools under individual charters
approved by various school districts or county boards. Because the SBE did not make such
findings regarding Aspire Public Schools, the matter was returned to the trial court for further
deliberations. California School Boards Association v. State Board of Education, 113 Cal.
Rptr.3d 550 (Cal. App. 1 Dist. 2010).
Page 36: Court Elaborates on Meaning of Comparable Facilities for Charter Schools.
As noted on this page, school districts are required under the Charter Schools Act to provide
facilities to in-district charter schools that are reasonably equivalent to facilities of district schools.
Bullis Charter School, an elementary school whose charter had been granted by the Santa Clara
County Office of Education after the Los Altos School District twice rejected it, filed a lawsuit
against the district contending that the facilities it was offered for the 2009-2010 school year were
not reasonably equivalent. Operating out of portable buildings on a portion of a junior high school
in the district, the charter school alleged that the district had violated the comparable facilities
requirement in various ways including underestimating playground space of five comparison
group schools, overestimating the nonteaching space supplied to Bullis, failing to consider child
care facilities available at the comparison schools, and using arbitrary figures to calculate library
space. As a result, the charter school maintained its school site was little more than half the size
of other elementary school sites in the district. In overturning the trial court ruling in favor of the
district, the appellate court noted that the district was not in compliance with State Board of
Education regulations detailing how charter facility determinations are to be made (see Admin.
Code title 5, § 11969.1 and following sections). While facilities offered by a district to an in-
district charter school do not need to match exactly those of comparable district schools, the
judges pointed out that the district must make a good faith attempt to identify and quantify the
facilities available to the comparison group of similar schools with regard to teaching stations,
specialized classroom space, and nonteaching space. Here the Los Altos School District had
failed to do so, and its facilities offer was void. Bullis Charter School v. Los Altos School District,
134 Cal.Rptr.3d 133 (Cal. App. 6 Dist. 2011).
Page 40: Clarification on Regulation of Private Schools. Some state regulations applying to private schools have exemptions for small private schools and,
by implication, homeshooling. For example, the Education Code provisions pertaining to
earthquake emergency procedures do not require emergency procedures in private schools having
a capacity of less than 50 students or no more than one classroom (see § 35296). The same is true
for fire drills (see § 32001). To determine whether there is a similar exemption in other regulatory
provisions applying to private schools, the provisions should be consulted directly.
4
Page 41: U.S. Supreme Court Defers to Religious Private School’s Judgment on Who is
Classified as a Minister and Thus Not Protected by Employment Discrimination Laws.
The U.S. Supreme Court ruled in 2012 that the “ministerial exemption” grounded in the free
exercise clause of the First Amendment that protects religious freedom in religious organizations
encompasses not only clergy but others who these organizations recognize as religiously “called”
to their roles. The case involved a teacher at a Lutheran school who had completed a course of
theological study and taught a religion class, led her students in prayer, and took them to a weekly
school-wide chapel service. After the teacher developed a sleeping disorder known as narcolepsy
and took disability leave, her designation as a “called” teacher was ended and she was replaced
by a lay teacher. She contended that these actions were in violation of the Americans with
Disabilities Act (ADA). The religious private school contended that as a “called” teacher, she fell
within the “ministerial exemption” and thus the school had the discretion to decide whether she
could continue to be recognized in this role and work at the school. In its unanimous decision, the
high court agreed, noting that applying employment discrimination laws like ADA to the
decisions of religious groups in choosing who will preach beliefs, teach beliefs, and carry out
their missions would undercut their right to free exercise of religion. Hosanna-Tabor Evangelical
Lutheran Church v. Equal Employment Opportunity Commission, 132 S.Ct. 694 (2012).
CHAPTER 2
ATTENDANCE, INSTRUCTION, AND ASSESSMENT
Pages 47-48: Legislature Expands School Choice by Enacting Open Enrollment Act.
See the update for page 28 above.
Pages 47-48: Changes in Residency Requirements.
Education Code Section 48204, which sets forth residency requirements for school attendance,
has been extended to 2017. To determine if a student meets residency requirements for admission,
the district can request that the parent or legal guardian show name and address through such
documents as property tax payment receipts; rental property contract, lease, or payment receipts;
pay stubs; voter registration; and the like. Not all are required. Excluded from this requirement
are homeless and other students who must be admitted under federal and state law (Education
Code § 48204.1). A student may be admitted to the district if at least one parent or legal guardian
physically works within the boundaries of school district for a minimum of ten hours during the
school week. The affidavit signed by caregiving adults in the district for students living with them
is no longer limited to one year.
Page 50: Changes in Kindergarten Admission Age.
The admission dates set forth in Education Code Section 48000 have been changed so that a child
whose parents opt to send the child to kindergarten is to be admitted at the beginning of the
school year if the child will be five years old on or before December 2 of the 2011-12 school year,
November 1 for the 2012-13 school year, October 1 for the 2013-14 school year, and September 1
for the 2014-15 school year and beyond. Children may be admitted on a case-by-case basis with
parent permission at any time during the school year. The provision regarding prekindergarten
summer program admissions has been deleted. To be admitted to the first grade, students must be
six years old on or before the same dates as noted above for admission to kindergarten.
To receive funding for students enrolling in the first year of a two-year transitional kindergarten
program, a school district or charter school shall ensure that for the 2012-13 school year, a child
is to be admitted if the child’s fifth birthday is between November 2 and December 2, for the
5
2013-14 school year the fifth birthday is between October 2 and December 2, and for the 2014-15
school year and thereafter the fifth birthday is between September 2 and December 2.
Transitional kindergarten means the first year of a two-year kindergarten program that uses a
modified kindergarten curriculum that is age and developmentally appropriate.
Page 50: Foster Children are to be Enrolled in a New School Even if Medical Records are
not Available.
In 2011 the legislature enacted a measure specifying that if a foster child is shifted to a new
school, that school must immediately enroll the child even if the child is unable to provide
clothing or if immunization records are not available or are missing (Education Code § 48853.5
(d)(7)(B)).
Page 51: No Flexibility on Physical Education Time Requirement.
The parent of an elementary student challenged a district’s decision to schedule no more than 120
minutes of physical education every ten school days. Education Code Section 51210 (g) requires
a minimum of 200 minutes. The school district, backed by the California Department of
Education, argued that the minute allotment was discretionary in that Section 51002 recognizes
that a common curriculum may need to be modified because of local economic, geographic,
physical, political, and social diversity. The California court of appeal rejected the assertion,
noting that Section 51210 uses the term “shall” and is discretionary only in allowing a district to
exceed the minimum. The appellate court also ruled that a parent has a private right of action to
seek a mandate to compel compliance with the requirement. Doe v. Albany Unified School
District, 118 Cal. Rptr.3d 507 (Cal. App. 3 Dist. 2010).
Page 54: Changes in Truancy Law.
Education Code Section 48264.5 has been amended to lessen somewhat the penalties placed upon
students for truancy. Now a first-time truant may be asked to make up missed classes and,
together with the parent or legal guardian, may be requested to meet with the school counselor or
other appropriate school official to discuss the causes of missed attendance and develop a
remediation plan. A second truancy in the same school year may result in a written warning by a
peace officer and the student’s assignment to an after-school or weekend program. The school
may make a record of the truancy. A third offense within the school year results in classification
of the student as a habitual truant, provided there has been a conscientious effort by school
officials to hold at least one conference with the parent or guardian. A fourth truancy in the same
year now may place the student within the jurisdiction of the juvenile court. The thrust of these
changes is to focus more on remediation than penalization for chronic truancy.
Page 55: Local Education Agencies Required to Have a Policy Encompassing a Range of
Prohibited Actions Including Bullying to Assure a Safe Learning Environment.
Education Code Section 234, known as the Safe Place to Learn Act (see page 388 in California
School Law), has been expanded to prohibit discrimination, harassment, intimidation, and
bullying at school and school activities. Among the characteristics that fall into this category
under Section 234.1 are disability, gender, identity, gender expression, nationality, race or
ethnicity, religion, sexual orientation, or association with a person or group that has one or more
of these actual or perceived characteristics. Local education agencies are required to have a policy
prohibiting these activities and a process for receiving and investigating complaints related to
them. The complaint process requires immediate intervention, a time line to investigate and
resolve complaints, and an appeal process for complainants who disagree with the resolution.
Page 56: Public School is a Public Place Where Possession of Etching Cream or Aerosol
Paint is Prohibited in Light of Need to Eliminate Graffiti.
6
In a juvenile court proceeding, a student tried to argue that because Reeves v. Rocklin Unified
School District discussed on this page held that schools are not public property open to
communication by outsiders, Penal Code Section 594.1 making it an offense to possess etching
cream or aerosol paint on public property does not apply to schools. The California court of
appeal rejected the contention, noting that schools can be considered public property for certain
purposes but not others. Here, the legislative goal of eliminating graffiti from public schools is
furthered by viewing them as public places. In re Miguel H., 103 Cal. Rptr.3d 884 (Cal. App. 2
Dist. 2010).
Page 60: Limited Liability under the Child Abuse and Neglect Reporting Act.
Mandated child abuse reporters in a school district have a duty under the Child Abuse and
Reporting Act to report instances of child abuse committed by employees of that district to proper
authorities. If they fail to do so, the parents can file an action for negligence. However, if a report
is not made and the employee moves to another district where the employee abuses a student, the
parents of the victim of that abuse cannot seek damages against the former employing district and
employees. A California court of appeal so ruled in 2009 in a case involving a substitute teacher
who sexually abused students in several districts. The parents sought damages against both the
employing district and previous districts that had employed the teacher under this statute. P.S. v.
San Bernardino City Unified School District, 94 Cal. Rptr.3d 788 (Cal. App. 4 Dist. 2009). Note
that this does not involve the application of the California Tort Claims Act to a situation like this.
See the discussion on pp. 456-457 of California School Law.
Page 60: Other Subjects for Which There Are Curriculum Content Standards.
In addition to reading, writing, mathematics, history-social science, and science, the California
Department of Education has curriculum content standards for visual and performing arts,
physical education, and foreign languages (Education Code §§ 60605.1-60605.3).
Page 60: Adoption and Implementation of the Common Core State Standards in English
Language Arts and Mathematics. California is one of 48 states that have worked with the Council of Chief State School Officers
and the National Governors Association Center for Best Practices to develop a common content
core in English language arts and mathematics. The purpose to align states regarding the
curriculum content in these subjects so that there is a clear and consistent K-12 progression
regarding what students are to master regardless of where they live. The State Board of Education
(SBE) adopted the common core state standards in August 2010. Education Code Section 60207
requires the SBE to align curriculum frameworks and evaluation criteria with the common
content for English language arts and mathematics by May 30, 2013, and May 30, 2014,
respectively. Education Code Section 60208 requires the Superintendent of Public Instruction
(SPI) in collaboration with others to develop professional development activities for teachers and
administrators to be used as the common core academic standards are implemented. The SPI is
also to report to the legislature on or before November 1, 2012 on the reauthorization of a revised
student assessment system in light of such factors as the implementation of the common core
standards, reauthorization of NCLB, incorporating open-ended responses, encompassing multiple
measures of student achievement, minimizing test time, and moving toward individualized
student growth (Education Code § 60604.5). For further information, go to
www.cde.ca.gov/ci/cc/
Page 60: Expansion of Efforts to Expand and Integrate Academic and Career Technical
Education in the School Curriculum.
In recent years, increasing emphasis has been placed on integrating career technical education
with traditional academic courses, given the rapid advance of technology in all aspects of daily
7
life. Section 52372.5 and following sections of the Education Code address in some detail the
value of high school career technical education (now often labeled “multiple pathways” or
“linked learning”) in broadening the scope of education and providing students with a full range
of post-graduation choices from postsecondary options to career entry. In 2010 the legislature
enacted a measure promoting work-based learning that augments existing law relating to career
technical education (Education Code § 51760 and following sections). School districts and
community colleges that receive funding to provide career technical education may include a
work-based learning component in these programs. Work-based learning means an educational
approach that combines rigorous college preparatory education with demanding career technical
education. Work-based learning offers opportunities to learn through real-world experiences like
job shadowing, mentoring, intensive internships, real or virtual apprenticeships, and school-based
enterprises. It may be delivered by California Partnership Academies (see next paragraph),
regional occupational programs, and programs developed in association with community colleges.
The legislature also has broadened the mission of California Partnership Academies to encompass
career technical education. The academies were started to provide combined academic and
occupational training for high school students at risk of dropping out of school. Effective July
2011, the legislature has expanded the number of partnership academies to encompass students
who are not at risk of dropping out of school and to encourage the establishment of academies
addressing the needs of developing technology (Education Code § 54690) Occupational
education and skill development encompass California’s fifteen different industry sectors
including computer technology, alternative energy, environmental design and construction, and
space. Up to one-half of partnership academy enrollment now may be those who do not meet the
criteria of at-risk students. Among the conditions for receiving state funding, a district must
establish the partnership academy as a school-within-a-school and assure instruction in at least
three academic subjects per school term that prepares students for a regular high school diploma
and, where possible and appropriate, to meet the subject requirements for admission to CSU and
UC. The legislature also has broadened the definition of supplementary instructional materials
that are to be selected for use in public schools to encompass relevant technology that further
engages interactive learning.
Starting 2012-2013, school districts and county offices of education that offer career technical
education courses are to add the completion of such a course as an option for satisfying the high
school graduation requirement of one course in visual or performing arts or foreign language
(Education Code § 51225.3). The district or county office is to include a list of its career
education courses that satisfy specific subject matter requirements for admission to CSU or UC.
The California Department of Education is to submit an evaluation of this addition to the
legislature on or before July 1, 2017.
Also starting in 2012-2013, the legislature has authorized the establishment of a career technical
education study program to be known as the Linked Learning Pilot Program. The State
Superintendent of Public Instruction (SPI) is to select up to twenty applications from school
districts seeking to implement a linked learning program. Details of the requirements to be
eligible for the pilot program are set forth in Education Code Section 52372.7. They include
incorporating small-sized schools and smaller groupings of students within new and existing high
schools; concurrent enrollment and dual credit with community colleges and universities;
problem-based instructional methodologies; implementation within the district’s existing state
and local resources; and involvement of business, labor, parents, and community partners. The
SPI is to submit an evaluation report on the program to the legislature and governor by September
2016 that encompasses student outcome data and recommendations for facilitating statewide
expansion of the linked learning program.
8
Page 60: Characteristics Protected in Selection and Disposal of Instructional Materials
Include Sexual Orientation; Social Studies to Encompass Contributions of LGBT Persons.
Existing law was amended in 2011 to prevent discrimination against lesbian, gay, bisexual, and
transgender persons in the selection and disposal of textbooks and to include instruction on the
study of role and contributions of these persons as well as persons with disabilities in social
science courses (Education Code §§ 51.204.5, 51500-51501, 60040). See also the discussion of
the anti-discrimination provisions of the Education Code discussed on p. 440 of California
School Law.
Pages 65-66, 83: Lawsuit against State Board of Education and Others for Requiring
English Learners to take the California Standards Test in English Rejected.
A California court of appeal has rejected the claim by a number of school districts that the State
Board of Education (SBE) violated the No Child Left Behind Act (NCLB) by requiring all
English learners (ELs) to take the California Standards Test in English. The districts asserted that
this requirement penalizes students who are not proficient in English and the schools they attend.
But the appellate court and the trial court deferred to the judgment of the SBE that testing EL
students in English and providing them with accommodations such as translated directions and
flexible time comports with both Proposition 227 and NCLB. The court of appeal pointed out that
the U.S. Department of Education approved the SBE testing plan and a similar testing program in
Arizona. Coachella Valley Unified School District v. State, 98 Cal. Rptr.3d 9 (Cal. App. 1 Dist.
2009).
Page 71: Data from CALTIDES May Now Be Used for Teacher Evaluation, Though
Subject to Union Negotiation.
The legislature has lifted the prohibition against using CALTIDES data alone or in conjunction
with student assessment data under CALPADS (discussed on p. 85) under the California
Education Information System for pay, promotion, sanction, or personnel evaluation of individual
teachers or groups of teachers. However, under Education Code Section 10601.6, the matter is
bargainable. This change was part of a series of bills that were enacted late in 2009 to position
California for eligibility to compete with other states for federal funding under the Race to the
Top Fund (see especially Education Code Section 53100 and following sections relating to
identifying and improving the persistently lowest-achieving schools in the state). Education Code
Section 10601.5 (d) specifies that CALTIDES must conform to federal and state law protecting
individual rights to privacy and confidentiality of individual personal information. Through a
series of related measures, the legislature seeks development of a reliable individualized student
performance tracking system
Pages 79-80: Disciplining Students for Misuse of Their Own Electronic Communication
Devices Off Campus.
See the updates for page 228 and page 338 below.
Pages 80-81: Protecting Student Privacy When Districts Contract for Computing Services.
As noted on p. 63, a California appellate court ruled some years ago that students should not have
to view advertisements in commercial videos. That same concern is growing now that schools are
increasingly contracting with commercial entities to provide software applications via the Internet
for educational and communication purposes. Commercial vendors often mine the data to develop
targeted advertising aimed at students. Education Code Section 35182.5 (c)(3) prohibits school
districts from entering into contracts for electronic services or products that requires
dissemination of advertising to students unless the districts does so at a public hearing, finds that
the electronic product or service is essential for education, finds that the district cannot otherwise
9
afford the product or service, provides written notice to parents that advertising will be used in
the classroom or learning center, and offers parents the opportunity to request in writing that their
child not be exposed to advertising. This area of the law is likely to change as more and more
advertising based on personal information accessible to the service provider is directed to
students who use the school’s software to access the Internet.
Page 81: In 2014 Online Learning Can Be Counted in Average Daily Attendance.
Starting in the 2014-2015 school year, school districts and county offices of education can
include synchronous online instruction in computing average daily attendance for students in
grades nine through twelve (Education Code § 46300.8). "Synchronous online instruction" means
a class or course in which the student and teacher are online at the same time and use real-time
Internet-based collaborative software that combines audio, video, file sharing, and other forms of
interaction. Instruction must be delivered by a certificated teacher, the teacher must confirm
student attendance through visual recognition, and the student must attend for the entire class.
Enrollment cannot be denied because a student does not have access to computer hardware or
software. The teacher-student ratio for synchronous online classes remains the same as for all
other educational programs unless negotiated otherwise in a collective bargaining agreement. The
state superintendent of public instruction is to establish rules and regulations for the
implementation of this statute.
Pages 82-91: State Waivers Now Available for Portions of No Child Left Behind Act
(NCLB).
Congress’s reluctance to reauthorize NCLB has prompted the Obama administration to allow
waivers of some provisions of the act. These include removing the 2014 deadline for all students
to be proficient on state math and reading/language tests, though states are still required to
administer the tests in grades 3-8 and once in high school. They also are required to continue
reporting the performance of student subgroups. States can reset the bar for acceptable yearly
progress (AYP) for every school and student subgroup and need not take corrective action of
Title I low-performing schools failing to make AYP for two consecutive years. But states still are
required to set ambitious, achievable goals to improve student and school performance. States and
school districts also are given more flexibility in using Title I and Title II funds. In order to
receive a waiver, states must have adopted college- and career-ready standards for all students
tied to state tests, developed a differentiated accountability system targeting 15 percent of the
state’s most troubled schools based on student growth targets, and must set basic guidelines for
teacher and principal evaluation that are linked to student achievement. For more information
about the changes, go to www.ed.gov/esea/flexibility. California is in the process of submitting a
waiver.
Page 86: Students with Disabilities Not Required to Pass CAHSEE.
The legislature has enacted a law providing that starting in the 2009-10 school year, eligible
students with disabilities are not required to pass CAHSEE as a condition of receiving a diploma
or graduating from high school. The exemption will last until the state board develops alternative
means of assessment for these students or determines such means are not feasible. The statute
also provides that a school may not adopt an IEP for the sole purpose of exempting the student
from the CAHSEE requirement unless consistent with federal law. Students with disabilities are
still required to take CAHSEE in grade 10 for the purpose of complying with the No Child Left
Behind Act (Education Code § 60852.3).
Page 87: Parent “Trigger” Act Slightly Expands School Accountability.
As part of its unsuccessful effort to obtain “Race to the Top” federal funds in 2010, the California
Legislature enacted the Parent Empowerment Act to be found in Education Code Sections 53300-
10
53302. The law applies no more than 75 Title I traditional public and charter schools that are not
necessarily identified as among the consistently lowest-achieving Title I schools under NCLB.
The schools subject to the so-called “Parent Trigger” are those that after one school year remain
subject to corrective action under NCLB, continue to fail to make adequate yearly progress, and
have an academic performance index score of less than 800 under the California school
assessment system. The 800 score is the statewide performance target. The “trigger” provision
provides that if at least one-half of the parents/legal guardians of students attending the school, or
in combination with at least one-half of those whose children in elementary or middle schools
will move on to the school, request the school district to implement one of four interventions
including restructuring or closure, the district must do so unless at a regularly scheduled public
hearing the district describes in writing why the option cannot be implemented and instead
describes what other options it will implement in the subsequent school year that are consistent
with NCLB.
Page 88: Components of Academic Performance Index Expanded.
Effective January 2013, the SPI with approval of the SBE also may incorporate grade level
promotion rates in the API for secondary schools, as well as measures of student preparedness for
postsecondary education and careers. Similarly, the SPI with SBE approval and available funding
may develop a program for local panels to visit schools, observer teachers, interview students,
and examine student work. Through these varied assessment approaches, more than just test
scores are linked to school accountability. Given the varied components of the Academic
Performance Index, the SPI is required to provide local education agencies and the general public
an easily understandable explanation of the API components and their relative values.
CHAPTER 3
EQUITY, ADEQUACY, AND SCHOOL FINANCE
Page 113: State’s Practice of Providing Only Nominal Funding to School Districts for New
Programs Violates State Constitution.
As noted on this page, when the legislature requires school districts to implement a new program
or higher level of service, the state constitution prohibits imposing the cost on the school districts.
Because of the state’s budget shortfalls in recent years, the legislature has provided only nominal
funding for new programs, deferring remaining payments to the future. In one year, for example,
the legislature provided $1,000 for each of thirty-eight mandated programs with a total cost
estimate of over $160 million. A California court of appeal ruled has ruled that this “credit card”
approach is unconstitutional. However, the judges also ruled that the judiciary is without
authority to compel the legislature to provide the funding. Rather, the remedy is set forth in
Government Code Section 17555 and following sections. These sections state that if the
legislature provides only nominal funding or no funding for mandated programs, school districts
either are relieved from having to implement the programs under certain circumstances (see Govt.
Code § 17581.5) or must seek judicial relief from having to do so (see Govt. Code § 17612 (c)).
California School Boards Association v. State of California, 121 Cal. Rptr.3d 696 (Cal. App. 4
Dist. 2011).
Page 114: Student Fees for Extracurricular Activities Are Not Permissible.
Newspaper stories have surfaced recently over school districts charging student fees for
cheerleading outfits, instruments and uniforms for band participation, and the like as a source of
revenue to help support these programs. The charging of such fees is impermissible. The
California Supreme Court ruled back in 1984 that all educational programs including
extracurricular and athletic activities fall within the right to a free public education under Article
IX, Section 5 of the state constitution. Thus, once offered, an extracurricular or athletic activity
11
must be provided free of charge. Hartzell v. Connell, 201 Cal. Rptr. 601. The constitutional
provision specifies that “The Legislature shall provide for a system of common schools by which
a free school shall be kept up and supported in each district….” Following up on this right,
Section 350 of Title 5 of the California Administrative Code states “A pupil enrolled in a school
shall not be required to pay any fee, deposit, or other charge not specifically authorized by law.”
The high court later ruled that bus transportation is not included within the right to a free public
education because it is not an educational activity. Arcadia Unified School District v. State
Department of Education, 5 Cal. Rptr.2d 545 (Cal. 1992). Accordingly, Education Code Section
39807.5 states that a school district governing board may require parents and guardians to pay a
portion of the cost of transportation to and from school. However, other provisions of the
Education Code provide state reimbursement for school bus transportation. While fees may be
involved in field trips and excursions, Education Code Section 35330 (b)(1) provides that no
student is to be prevented from participating because of lack of funds. Similarly, Section 35183
provides that if a school district has a uniform dress code, resources must be provided for
economically disadvantaged students. Driver training is educational, and therefore student fees
cannot be charged. California Association for Safety Education v. Brown, 36 Cal. Rptr.2d 404
(Cal. App. 6 Dist. 1994).
Page 127: New School Finance Lawsuits Filed.
In May 2010, a group of school districts, parents, students, professional associations, and
advocacy groups filed two lawsuits in Alameda County Superior Court against the state claiming
that the existing school finance system violates the state constitution. The basis of Robles-Wong
v. California and Campaign for Quality Education v. California is essentially that the state has set academic standards but has not provided the means to achieve them. The consolidated
cases are now on appeal on procedural grounds.
CHAPTER 4
UNIONS AND COLLECTIVE BARGAINING
Page 142: Grant Funds to Provide Additional Compensation to Math, Science, and Special
Education Teachers Negotiable.
Education Code Section 41530 has been amended to permit professional development grant funds
to be used to provide additional compensation to new and existing math, science, and special
education teachers in low performing schools. Because doing so is an exception to the uniform
salary schedule, the matter must be negotiated.
Page 154: Recent Applications of the Round Valley Decision.
Rather than pursue an unfair labor practice claim with the Public Employment Relations Board
(PERB), the Sunnyvale Education Association filed a grievance alleging that the nonreelection of
a member’s probationary contract was triggered by his involvement in associational activities.
The matter was submitted to arbitration under the collective bargaining agreement. The arbitrator
decided in favor of the association and ordered the teacher reinstated. The school district
contended that the arbitrator did not have the authority to order reinstatement. The trial court
agreed, citing the Round Valley decision discussed on this page, and the union appealed. The
court of appeal affirmed the decision, noting that contract nonreelection is not subject to the
collective bargaining process and thus the arbitrator had no jurisdiction over the matter. The
appropriate remedy is through an unfair practice claim filed with PERB. Sunnyvale Unified
School District v. Jacobs, 89 Cal. Rptr.3d 546 (Cal. App. 6 Dist. 2009).
The California Supreme Court relied upon its Round Valley decision to rule in 2012 that
provisions in a collective bargaining agreement relating to the conversion of a public school to a
12
conversion charter school are not arbitrable if they conflict with the Education Code. The case
involved provisions in the collective bargaining contract between the United Teachers of Los
Angeles and the Los Angeles school district that the union argued were not followed, such as
providing the complete charter to employees and giving them and the union time to review it.
Because it was not clear whether these provisions actually conflicted with Education Code
Section 47611.5, which states that the approval or denial of a charter petition is not to be
controlled by collective bargaining agreements, the high court sent the case back to the trial court
for further deliberations. United Teachers of Los Angeles v. Los Angeles Unified School District,
142 Cal. Rptr.3d 850 (Cal. 2012).
Page 155: San Leandro Mailbox Decision Affirmed by California Supreme Court.
The California Supreme Court unanimously upheld the court of appeal decision discussed on this
page, incorporating much of that court’s decision as its own. The high court emphasized the
narrowness of its ruling by noting that the school could open up its mailboxes for political
endorsement literature as long as done on an equitable basis. And it noted that its ruling does not
restrict a recognized union from using the school mailboxes to urge members to become involved
in elections and from engaging in public policy discussion in more general terms rather than
engage in one-sided political endorsements. San Leandro Teachers Association v. Governing
Board of San Leandro Unified School District, 95 Cal. Rptr.3d 164 (Cal. 2009).
Page 158: Nonunion Members Are Entitled to a Second Hudson Notice When Agency Fees
Increase During the Year; this Notice Must be an Opt-In and not an Opt-Out.
In a case involving a California union, the U.S. Supreme Court ruled seven-to-two in 2012 that
public sector unions must send nonmember agency feepayers a second Hudson notice in addition
to an annual fee notice when adopting a temporary, mid-term fee increase beyond what was
projected for that year. This a necessary to avoid violating nonmember First Amendment rights
by making them contribute to political causes to which they object. Giving them a later option to
seek a rebate crosses the limits of the First Amendment. Five members of the Court went further
to rule that, rather than sending out the notice giving nonmembers the right to opt out of the
special fee, the notice must require that nonmembers affirmatively opt in. The effect is to make it
harder for unions to secure nonmember support. The four dissenters viewed this as judicial
overreaching, because it could apply not to just special assessments but to regular annual agency
fees as well. Knox v. Service Employees International Union, Local 1000, 132 S.Ct. 2277 (2012).
Page 160: Charter School Violated the Educational Employment Relations Act by Firing
Teachers for Writing a Letter Critical of the School’s Change in Governance Because the
Role of Teachers in Charter Schools Is Different.
As noted on this page, the organizational rights of charter school teachers are complicated by
their involvement in running the school. This was clearly evident in a dispute over the contract
termination of three teachers by the Journey Charter School in the Capistrano Unified School
District. Journey is modeled on the Waldorf method of education that, among other things,
encompasses a collaborative governance structure involving teachers, parents, and administrators.
In this case, two of the three teachers were members of the school’s governing council. When
complaints arose about the way the school was being operated, the two teachers were removed for
a time as council members, an act that created dissension among other teachers and the parent
community. Later, one of the teachers contacted the California Teachers Association (CTA).
In July of 2006, all of the Journey teachers met to draft and sign a letter to the parents of Journey
students regarding challenges the school faced and the school’s departure from the collaborative
governance model. A month later, the teachers voted to become affiliated with CTA. The non-
13
teacher members of the charter school’s governing council then voted not to renew the three
teacher contracts. CTA filed an unfair labor practice with PERB against the school claiming that
the teachers were fired because of their involvement with CTA and in retaliation for writing the
July letter. The administrative law judge to whom the case was assigned decided in favor of CTA.
However, PERB reversed that decision in a two-to-one decision. PERB concluded that there was
no credible evidence that the teachers had been fired because of involvement with CTA and that
the letter the teachers had written was not a protected act under EERA because it did not deal
with the interests of the teachers as employees.
The California court of appeal reversed the PERB decision, noting that PERB had not considered
the unique role of the teachers in Journey Charter School. The appellate court pointed out that in
response to the letter the teachers had written, the parent-dominated council required all official
communications with parents to be approved by the council. This was retaliatory in that it
affected the role of teachers as employees in the charter school setting where they played a role in
collaborative governance. “Even assuming that complaints about the management structure of a
school might not be viewed as addressing ‘the teachers’ interests as employees’ in a traditional
public school,” the judges observed, “it is difficult to conclude they do not do so in this case – or
perhaps in any case involving a charter school” (p. 1089, emphasis in original). Furthermore, the
court pointed out that only these three teachers were fired because the council believed them to be
the organizers of the other teachers. Thus, the letter was protected conduct under EERA. Given its
decision on the July letter, the appellate court did not reach the contention that the three teachers
were fired because of their efforts to unionize with CTA. Noting that the teacher contracts were
terminated in violation of EERA, the court sent the case back to PERB for a disposition
consistent with the court’s opinion. California Teachers Association v. Public Employee
Relations Board, 87 Cal. Rptr.3d 530 (Cal. App. 4 Dist. 2009). What is noteworthy about this
decision is that it takes into consideration the different role of teachers in the operation of most
charter schools.
CHAPTER 5
EMPLOYMENT
Page 173: Court Denies Teacher’s Bid for Permanent Status and Approves Year-to-Year
Hiring of Teacher as Temporary Employee.
Dawn McIntyre worked for the Sonoma Valley Unified School District for the 2006-2007, 2007-
2008, and 2009-2010 school years. During the 2006-2007 school year Dawn taught a fifth grade
general education classroom as a long-term temporary employee and was non-reelected on March
15, 2007. In May of 2007, Dawn was rehired as a long-term temporary employee for the next
school year and taught a third grade general education classroom for the 2007-2008 school year.
On March 13, 2008, Dawn was once again non-reelected only to be rehired in another long-term
temporary employee position in May of 2008 for the forthcoming 2008-09 school year. Dawn
taught a second/third grade general education class during the 2008-2009 school year and was
informed in October of 2008 that the board had approved a change in her employment status from
temporary to second-year probationary employee. On page 173 we discuss Education Code
Section 44918 (a) which provides for retroactive probationary credit for time served as a
temporary employee when the individual is employed as a probationary teacher the following
school year. On March 12, 2009, Dawn was informed by the board that she was non-reelected.
Recall that as we discuss on pages 179-180, a teacher must serve in a probationary classification
for two years before attaining permanent classification.
Dawn challenged the decision of the board and advanced a number of legal theories to support
her position that she attained permanent status as of March 15, 2008. Dawn first argued that she
14
could not be classified as a temporary employee because the district was operating in violation of
Education Code Section 44920 by employing more temporary than permanent teachers. Section
44920 states that the employment of temporary employees shall be based on the need for
additional certificated employees because certificated employees are on leave. Dawn submitted
evidence supporting her position that the district had violated Section 44920 by employing more
temporary than permanent employees during the school years at issue. The district, however,
effectively countered the evidence by demonstrating to the court that the district maintained an
appropriate balance between temporary and permanent employees. Dawn next argued that the
district’s cycle of hiring, non-reelecting, and rehiring her as a temporary employee was contrary
to those portions of the Education Code governing the employment of teachers. The court
rejected this argument and held that there is nothing in the Education Code to forbid such a
practice as long as the district complies with the pertinent requirements of the Education Code
including designation of the employee as temporary and timely notice of non-reelection. Finally,
Dawn argued that the district had erred in its classification of her employment status. The court
determined that Don was a temporary employee for the 2006-2007 and 2007-2008 school years
and that while she was a second-year probationary employee for the 2008-2009 school year the
district timely exercised its rights to non-reelect Dawn. McIntyre v. Sonoma Valley Unified
School District, 141 Cal. Rptr.3d 540 (Cal. App. 4 Dist. 2012).
Page 175: Court Interprets Section 44909 to Only Permit Districts to Classify
Employees as Temporary if Employees are Hired for the Term of the Categorically
Funded Project and Terminated at Expiration of Project. The lawsuit was initiated by the Stockton Teachers Association CTA/NEA against the Stockton
Unified School District on behalf of nine Association members who were laid off by the District
at the end of the 2008-2009 school year. The nine members were hired pursuant to Education
Code Section 44909, which we discuss on pages 174-175. Section 44909 governs the hiring and
classification of certificated employees in categorically funded programs. The Association argued
that the nine members were improperly classified by the district as temporary employees and
should have been classified as probationary employees. The Association also argued in the
alternative that even if the nine members were temporary employees, the district’s layoff notices
were invalid because the district provided notice to the members as though they were
probationary employees.
The nine Association members were hired by the district in July of 2008 under Section 44909
pursuant to written contracts which identified their status as temporary employees and an
employment termination date of May 2009. In March of 2009, the district’s board adopted a
resolution to reduce or eliminate particular kinds of certificated services (PKS) under Section
44955. We discuss PKS layoffs on pages 191-192. The Association’s attorney informed the
district that the nine members may not be properly classified as temporary, so the district as a
precautionary measure notified the members of the PKS layoff. The members were informed that
if they believed they were not temporary employees then they could request a hearing related to
the PKS layoff. As we discuss on page 174, a temporary employee is not entitled to such a
hearing and only entitled to receive notice of non-reelection. The nine members requested a
hearing and the administrative law judge (ALJ) approved the district’s request to lay the members
off over the objection of the Association, which contended that the employees were temporary
and therefore not subject to the layoff process.
The Association challenged the ALJ’s decision at the trial court level and the trial court sided
with the district. The Association appealed the decision of the ALJ and the court of appeal agreed
with the Association’s position that the members were probationary rather than temporary
15
employees. The appellate court ruled that “A person employed under section 44909 is to be
treated like a temporary employee, provided the person is employed for the duration of the
contract with a public or private agency or categorically funded project” (p. 68). The court
reasoned that because there was no evidence that the nine members were hired for categorical
programs or terminated at the end of those programs, the members were probationary rather than
temporary employees. Stockton Teachers Association CTA/NEA v. Stockton Unified School
District, 139 Cal. Rptr.3d 55 (Cal. App. 4 Dist. 2012).
Page 183: District Satisfied Notice Requirement for Non-Reelection by Sending Letter to
Teacher’s Address and Providing Oral Notice of Non-Reelection.
Michael Sullivan was a probationary teacher for the 2006-07 school year and was reemployed for
the 2007-08 school year. On March 10, 2008, the school district’s director of human resources
met with Michael and informed him that he would not be reelected for the next school year.
Michael called in sick for work on March 11, 12, and 14, 2008, and attended a board meeting on
March 13, 2008, in which a friend spoke on his behalf to urge the board to reconsider and reelect
him. Michael did not remain at the board meeting to hear the board’s decision. A written notice of
non-reelection was received at his address on March 15, 2008, and was signed for by an
individual at the address. Michael was not at his address on March 15, 2008, and returned home
on March 16, and read the letter. He argued that his non-reelection was invalid because he did not
receive the written notice required by Education Code Section 44929.21(b). The court rejected
the argument and held that Michael evaded service of the non-reelection letter and furthermore
already had actual knowledge of his non-reelection prior to March 15, 2008. Sullivan v. Centinela
Valley Union High School District, 122 Cal. Rptr.3d 871 (Cal. App. 4 Dist. 2011).
Page 183: Court Decision Addresses Mid-Year Dismissal of Probationary Teacher.
Sarah Achene was a first year probationary teacher employed by the Pierce Joint Unified School
District. After two formal evaluations she was notified in December that she was being
terminated effective January 10 for unsatisfactory performance. Sarah challenged the dismissal on
the grounds that the district did not give her a 90-day notice of unsatisfactory performance
pursuant to Education Code Section 44938. Section 44938 governs charges of unprofessional
conduct or unsatisfactory performance and is typically invoked in regard to permanent certified
employees. Education Code Section 44948.3, which is discussed on page 184, identifies the
notice requirements for dismissal of probationary certified employees. The court, however,
agreed with Sarah’s argument and held that section 44938 requires that a probationary teacher
receive 90-day notice of unsatisfactory performance, including notice that a failure to improve
will result in termination, before termination. Achene v. Pierce Joint Unified School District, 97
Cal. Rptr.3d 899 (Cal. App. 4 Dist. 2009).
Page 187: Teacher’s Posting of Internet Advertisement Soliciting Sex Which Included
Graphic Pictures of Teacher Constituted Evident Unfitness to Serve.
Frank Lampedusa was a tenured teacher in the San Diego Unified School District and was
promoted to the position of dean of students at his local school site in which he handled
disciplinary issues. He did a good job and was considered a potential candidate for vice principal.
In June of 2008 a District police dispatcher received an anonymous call saying that he had been
informed by a friend that the dean of students at his child’s school had an advertisement on
Craigslist’s “men seeking men” page soliciting sex. The caller walked the dispatcher through the
process of locating the page. The page was explicit, contained pictures of Lampedusa’s anus and
genitalia, and communicated his desire to connect with other men for the purpose of having sex.
Lampedusa was thereafter told by his principal to remove the listing, and he did. On July 17,
2008, Lampedusa was placed on administrative leave, and on November 10, 2008, he was served
with notice of suspension and dismissal charges. He challenged the dismissal before the
16
Commission on Professional Competence and prevailed. The Commission determined that
because no students had seen the pictures the posting had not interfered with Lampedusa’s ability
to serve as a role model and teach. The school district appealed the Commission’s decision and
prevailed. The court noted that contrary to the Commission’s findings, a student and parent had
seen the advertisement and this did have an adverse impact on students because of the graphic
nature of the advertisement. The court also noted that Lampedusa attempted to shift the blame for
his actions on parents and students by noting that they should not be accessing the advertisement.
The court also took issue with his testimony before the Commission that he would post additional
advertisement in the future but take care to censor the pictures more effectively. The court
concluded that the graphic nature of the conduct in combination with Lampedusa’s failure to
accept responsibility for his actions demonstrated an evident unfitness to teach and also
constituted immoral conduct. San Diego Unified School District v. Commission on Professional
Competence, 124 Cal. Rptr.3d 320 (Cal. App. 4 Dist. 2011).
Page 191: Teacher Entitled to Ruling that He Not Be Dismissed and to Reasonable
Attorneys’ Fees and Costs Where District Dismissed Termination Case Prior to Hearing.
David Boliou commenced employment with the Stockton Unified School District in 1990 as a
mathematics teacher. In November of 2008 one of his students alleged that Boliou had covered
her mouth with duct tape as punishment for excessive talking. In February of 2009 the District
filed dismissal charges against Boliou on multiple grounds including immoral or unprofessional
conduct and evident unfitness for service.
Prior to the commencement of the hearing, the administrative law judge (ALJ) considered a
motion by Boliou for dismissal of the unprofessional conduct charge and ruled in Boliou’s favor
because the district failed to provide Boliou with sufficient advance notice of the charge. The
district unsuccessfully challenged the ALJ’s ruling and elected to file amended dismissal charges
(i.e., without the unprofessional conduct claim) against Boliou. Shortly before the hearing on the
amended charges proceeded, however, the district withdrew its request for hearing against Boliou,
thereby terminating the dismissal proceedings.
Even though Boliou was no longer defending dismissal charges, he argued that he was entitled to
recover reasonable attorneys’ fees and costs related to his defense of the recently withdrawn
dismissal charges and initiated litigation in state court to recover attorneys’ fees and costs against
the district. Education Code Section 44944 (e)(2) requires a school district to pay the reasonable
attorneys’ fees of the employee if the Commission on Professional Competence determines that
the employee should not be dismissed or suspended. The trial court agreed with Boliou and
ordered the district to pay attorney fees of $114,465, costs of $9,976.41, and any applicable post-
judgment fees.
The district appealed the trial court’s order. The appellate court upheld the trial court’s order by
focusing on Education Code Section 44943, which provides that a governing board has the
following two options when an employee who has been served with dismissal charges requests a
hearing: rescind the hearing or schedule a hearing. The appellate court interpreted Section 44943
such that, “Once Boliou demanded a hearing and the governing board opted to schedule the
hearing, the comprehensive statutory scheme provided no mechanism by which the board could
unilaterally prevent that hearing from going forward by thereafter rescinding the charges against
Boliou” (pp. 193-194). The unique statutory construction of the certified dismissal process in the
Education Code therefore barred the district from dismissing its hearing request without
consequence once the district elected to proceed with the hearing. Boliou v. Stockton Unified
School District, 143 Cal. Rptr.3d 189 (Cal. App. 4 Dist. 2012).
17
Pages 191-193: Increased Focus on Layoff of Probationary and Permanent Contract
Teachers for Economic Reasons.
Enrollment declines and financial hard times have resulted in more attention to employee layoffs.
Here, we elaborate a bit on layoffs generally and discuss layoffs triggered by budget act/revenue
limits. If the issue is not addressed in the collective bargaining contract, Education Code Section
44955 and related sections control. As discussed on p. 191, Section 44955 governs layoff of
probationary and permanent contract employees for decline in enrollment or modification of
curriculum. A key provision provides that layoffs must be by seniority, meaning that probationary
employees are laid off before permanent employees. If employees have the same seniority, who
gets laid off is determined by the needs of the district and its students. Notice of contract
termination under section 44955 must be given before May 15. Also note that under Section
44949, an employee is to be notified by March 15 that the superintendent or designee has
recommended to the governing board that the employee’s services will not be needed for the
reasons set forth in Section 44955. This is often referred to as “receiving a pink slip.” Employees
receiving such notice then have seven days to request a formal hearing conducted by an
administrative law judge. If such notice and opportunity for a hearing is not given, the employee
is reemployed for the next school year (Education Code § 44955 (c)).
Education Code Section 44955.5 governs layoffs for insufficient increase in revenue limit
funding per average daily attendance (not increased at least 2 percent for the fiscal year). The
time frame for a district making this determination is between five days after the enactment of the
Budget Act and August 15 of the fiscal year to which the Budget Act applies. Contract
terminations of probationary and permanent certificated employees under this provision follow
the provisions of Section 44955 except that the schedule of notice and hearing are as adopted by
the governing board. However, this section is inoperative from July 1, 2011 to July 1, 2012.
In the event of a tie when determining seniority for a layoff, the governing board makes the
decision based on district and enrollment needs. As we discuss on p. 192, Section 44955 provide
two exceptions to seniority: (1) a specific need for personnel to teach a course for which the
teacher has training and experience that more senior teachers do not and (2) compliance with the
constitutional requirement of equal protection of the law. The equal protection issue has surfaced
in past litigation and once again is the focus of layoffs pursuant to seniority (last in, first out or
what is termed “LIFO”) that have a disproportionate impact on schools serving high percentages
of low-income students in urban areas. A seminal lawsuit from the past is the California Supreme
Court’s decision in Butt v. State of California, 15 Cal. Rptr.2d 480 (Cal. 1992). That case
involved the closing of schools in the Richmond Unified School District six weeks before the end
of the school year because the district had run out of money. The California high court ruled that
the closing deprived the students of basic educational equality and the state has an obligation to
prevent a district’s budgetary problems from denying them that equality.
In February 2011 a superior court judge in Los Angeles affirmed a consent agreement negotiated
by the Los Angeles Unified School District in response to suits by students through their parents
over disproportionate layoffs at three inner city schools. The students argued that the
disproportionate layoffs at these schools would undercut efforts to provide an equal educational
opportunity for them. The judge agreed with the plaintiffs, noting that a collective bargaining
contract cannot override the constitutional principle of equal protection of the laws implicitly
embedded in Education Code Section 44955 (d). The judge approved the expansion of the
seniority-based layoff exemption to up to 45 schools in the district. The decision, however, was
struck down on procedural grounds and the matter returned to the trial court for further
proceedings. Reed v. United Teachers Los Angeles, 145 Cal. Rptr.3d 454 (Cal. App. 2 Dist. 2012).
18
As noted on p. 184 of this chapter, probationary teachers are not entitled to a hearing when their
contracts are not extended. However, when this occurs for financial reasons pursuant to these
provisions of the Education Code, they are entitled to one. This was made clear in a 1994 ruling
of a California court of appeal. In this case, Susan Cousins, a probationary employee in the
Weaverville Elementary School District, was given a notice of nonreelection under Section
44929.21. That section requires notice but no hearing. In a letter to Susan, the principal stated that
the termination was for economic reasons, not teaching performance. Susan filed a lawsuit,
arguing that she was entitled to a hearing to challenge the layoff under Education Code Section
44949 as provided by Section 44955. The appellate judges agreed, noting that Section 44955
provides an exception to the general rule that probationary teachers are not entitled to a hearing
when their contracts are not extended. Cousins v. Weaverville Elementary School District, 30 Cal.
Rptr.2d 310 (Cal. App. 3 Dist. 1994).
Page 196: Education Code Section 45308 Amended to Require Reemployment of Classified
Employees Laid Off in Order of Seniority.
Assembly Bill 1269 amended Section 45308 to require reemployment of laid off classified
employees in order of seniority. Section 45308 previously provided for reemployment in the
reverse order of the layoff.
Page 199: District Practice of Running Classified Employees’ Vacation Leave Concurrently
with Extended Sick Leave Invalidated By Court.
A school bus driver, Donna Hayes, was absent for seventy-three days of work from the Colton
Joint Unified School District due to a knee injury. Donna was working under a collective
bargaining agreement which specifically provided that extended sick leave consisted of 100 days
of sick leave paid at 50 percent of the employee’s regular salary. Absent this specification in a
collective bargaining agreement, a school district’s employees are only entitled to the five-month
differential leave discussed on page 200. In regard to the 100-day leave, Education Code Section
45196 states that such leave “shall be exclusive of any other paid leave, holidays, vacation, or
compensating time to which the employee may be entitled.” During Donna’s absence, the district
deducted both sick and vacation leave to which she was entitled under Education Code Sections
45197 and 45191, respectively. The California School Employees Association (CSEA)
challenged the district’s decision to deduct sick and vacation leave, and the court agreed with the
CSEA. The court held that Education Code Section 45196, by its plain language and legislative
history, exempts the deduction of sick and vacation leave for an employee on leave under this
section. California School Employees Association v. Colton Joint Unified School District, 88 Cal.
Rptr.3d 486 (Cal. App. 4 Dist. 2009.)
Page 202: ADA Amendments Act Increases Coverage for Employees.
Effective January 1, 2009, the Americans with Disabilities Act (ADA) Amendments of 2008
significantly amended federal disability law. One of the key changes brought about by ADAAA,
which is discussed on page 204, is that except for ordinary eyeglasses or contact lenses,
ameliorative measures cannot be considered in determining if an impairment substantially limits a
major life activity. Other changes include expansion of what constitutes a major life activity to
include general activities (e.g., working, lifting, bending) and impairments of major bodily
functions (e.g., immune neurological, circulatory, and reproductive systems). An individual may
also be considered disabled even if his or her impairment limits a major life activity only
episodically or is in remission. The ADA Amendments Act of 2008 also permits an individual to
pursue a “regarded as” claim (see page 203) if an adverse employment action occurs because he
or she has an actual impairment or is perceived as having an actual impairment. Finally, the
ADA Amendments Act clarifies that it is the intent of the law to broaden the scope of coverage
19
for individuals under the law.
Page 202: Anti-Retaliation Provisions of Section 504 and the American with Disabilities Act
Apply to Non-Disabled Persons Who Speak Out to Protect Rights of Disabled.
Susan Barker, a resource specialist program teacher in the Riverside County Office of Education,
voiced concerns to her supervisors that the county office was not in compliance with federal and
state special education law regarding children with disabilities and filed a class discrimination
complaint with the U.S. Office for Civil Rights (OCR) to this effect. After doing so, she alleged
that her supervisors retaliated against her in various ways before terminating her employment.
She lodged a complaint with OCR, which conducted an investigation. After OCR decided in her
favor, Susan filed a federal lawsuit contending that the county office had violated the anti-
retaliation provisions of both Section 504 of the 1973 Rehabilitation Act and Title II of the
Americans with Disabilities Act. The county office countered that the teacher did not have
standing to sue under these statutes, because she was not a person with a disability. The trial court
agreed with the county office, but the U.S. Court of Appeals for the Ninth Circuit reversed that
decision. The anti-discrimination provisions of both statutes, the appellate court noted, are not
limited just to persons with disabilities. Rather they apply to discrimination against “any person”
or “any individual.” The court noted that OCR had so concluded after completing its investigation.
Thus, Susan had standing to bring the lawsuit against the county office. The case was returned to
the trial court for further proceedings. Barker v. Riverside County Office of Education, 584 F.3d
821 (9th Cir. 2009).
CHAPTER 6
RIGHTS OF EXPRESSION
Page 210: No Retaliation When School Board Removed Fellow Board Member from Vice
President Position.
The U.S. Court of Appeals for the Ninth Circuit has ruled that the First Amendment does not
protect a school board member who is removed as vice president by other board members
because of his criticisms of the school superintendent. The board member continued to serve on
the board and could continue to speak out. The appellate judges observed that the board members
themselves were exercising First Amendment rights when they made the decision. Such action is
typical of the give-and-take of political bodies and does not violate the First Amendment. Blair v.
Bethel School District, 608 F.3d 540 (9th Cir. 2010).
Page 215: Job Descriptions Cannot Be So Encompassing That They Deny School Employees
the Right to Speak Out on Public Issues as Citizens.
An Idaho school security employee wrote a letter at home to his school administrators expressing
concerns about the lack of adequate security measures on campus. When his position was
eliminated, he filed a lawsuit against the principal and the district claiming retaliation for
exercising free speech. The trial court dismissed the lawsuit, agreeing with the school district that
the employee was speaking within the scope of his duties of employment and thus his letter was
not a form of protected speech under the U.S. Supreme Court’s ruling in Garcetti v. Ceballos
(that case is discussed on this page in California School Law). The U.S. Court of Appeals for the
Ninth Circuit, whose jurisdiction encompasses several western states including Idaho and
California, reversed that decision, noting that whether an employee is speaking within the scope
of his duties of employment is a mixed question of law and fact. Here, there was evidence that the
employee was addressing concerns beyond his duties as a security specialist and thus acting as a
citizen. The case was sent back to the trial court for further proceedings. Posey v. Lake Pend
Oreille School District No. 84, 546 F.3d 1121 (9th Cir. 2008). The important point here is that the
scope of employment cannot be construed so broadly under the U.S. Supreme Court’s Garcetti v.
20
Ceballos decision that public school employees lose their right to speak out as citizens on matters
of public concern.
Page 224: Charter Schools Must Observe Student Free Speech Rights Under California
Law Just Like Traditional Public and Private Secondary Schools.
In 2010 the California Legislature amended both Education Code Section 48907 and 48950 that
protect student speech to apply to charter schools serving secondary students. In addition, if the
Commission on State Mandates finds any costs result from implementing the latter, the state shall
provide reimbursement.
Page 225: Harper Case Comes to an End.
In 2009, the U.S. Court of Appeals for the Ninth Circuit ruled that because both Chase and Kelsie
Harper had graduated from high school and the school’s speech policies had been amended, their
case had become moot. The claims against the school and its officials were dismissed. Harper v.
Poway Unified School District, 318 Fed. Appx. 540.
Page 228: Addressing Student Misuse of Electronic Communication Devices Off Campus.
The law is slowly developing in this area as student misuse of electronic communication devices
(ECDs) off campus increases. One of the more noteworthy judicial decisions is a 2008 ruling
from the U.S. Court of Appeals for the Second Circuit. It concerns a student at a Connecticut high
school who was disqualified from running for senior class secretary after she posted a vulgar and
misleading message on her publicly accessible blog on livejournal.com about the supposed
cancellation of a battle-of-the-bands concert. In the blog she referred to school officials as
“douchebags.” She also said the event had been cancelled (it hadn’t) and included a letter sent by
her mother to the principal in case fellow students might wish to write something or call the
principal “to piss her off more.” Several others students posted messages on the blog, one student
calling the superintendent a “dirty whore.” The posting student contended that the school had no
authority to sanction her because she was exercising her rights as a citizen outside of school. The
Second Circuit decided against the student.
Three conditions emerge from this and other judicial decisions for determining when student
expression off campus may result in student discipline. First, was it reasonably foreseeable that
the sending/posting student would know that the communication would cause disruption at school?
Second, has the school convincing documentation of material disruption and/or substantial
interference with the rights of others at school to warrant imposing discipline? And third, was the
discipline imposed tailored to the nature of the offense? Here, the student was denied the
opportunity to run for student office, a privilege and not a right. The court’s comments suggest
that stronger justification would have been necessary to impose more severe sanctions on the
student. Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008). The U.S. Supreme Court later refused
to review the ruling.
Because student expression off campus is normally beyond the purview of the school, there must
be clear justification for imposing discipline. A California federal judge ruled in 2010 that school
officials in the Beverly Hills Unified School District did not have justification for suspending a
thirteen-year-old student after she made a videotape outside of school containing disparaging
remarks about a fellow student. On the four-minute videotape, several students called the student
with the initials C.C. a “slut,” “spoiled,” and “the ugliest piece of shit I’ve seen in my whole life,”
among other things. J.C., who made the videotape, posted it on YouTube that night and invited
other students to view it. She also contacted C.C. to tell her what she had done. C.C.’s mother
alerted the school. The next day, C.C. spoke with a school counselor about the video, saying she
did not want to go to class. Crying, she told the counselor that she felt humiliated and had hurt
21
feelings. After some 25 minutes of speaking with the counselor, C.C. agreed to attend classes.
Later, school officials suspended J.C. for two days. J.C. through her parents filed a lawsuit
seeking to overturn the suspension and to secure money damages against school officials. She
was successful in securing the former, but not the money damages.
The federal judge rejected out of hand J.C.’s argument that she could not be disciplined for
speech occurring off school grounds. He noted that it was foreseeable that the video would
become known at school because J.C. had posted it on YouTube and alerted students to the
posting. However, the judge concluded that under Tinker v. Des Moines School District, there
was no material or substantial disruption of school activities. Students could not access YouTube
on school computers, and there was no evidence that they had done so on their own cell phones.
At most, school personnel had to address the concern of an upset parent and student, as well as
briefly talk with several students involved in the incident. No other disruption or interference with
classes was evident or foreseeable.
School officials strongly argued that the school had a responsibility to take action to protect the
welfare of the targeted student and should have discretion to do so. The judge agreed but pointed
out that the school could not infringe on the rights of other students. “The task for this Court,” he
wrote, “is not to assess whether the school’s intentions were noble; no one could dispute that the
school was attempting to protect C.C. from psychological harm. That said, the Court is not aware
of any authority…that extends the Tinker rights of others prong so far as to hold that a school
may regulate any speech that may cause some emotional harm to a student. This Court declines to
be the first.” J.C. v. Beverly Hills Unified School District, 711 F. Supp.2d 1094 (C.D. Cal. 2010).
Like the material disruption test from Tinker applied to student speech that originates off campus,
school officials must be present convincing evidence that interference with the rights of others on
campus really was substantial. A venerable ruling of the U.S. Court of Appeals for the Second
Circuit provides an illustration. In that ruling, school officials argued successively that an
optional sex questionnaire members of the high school student newspaper wanted to distribute to
high school students with the results published in the newspaper would result in harm. This is so,
the school argued, because many high school students are only beginning to develop sexual
identities. Having to respond to complex issues of this nature could force emotionally immature
students to face psychological pressures prematurely. Medical experts testified in support of the
school’s position. The court of appeals ruled that under these circumstances, prohibiting
distribution of the questionnaire did not violate freedom of the press under the First Amendment.
Trachtman v. Anker, 563 F.2d. 512 (2nd Cir. 1977).
These cases demonstrate that school officials face a dilemma in dealing with off-campus student
ECD misuse. Disciplining students without a convincing case of material disruption and/or
substantial interference with the rights of others may result in successful lawsuits. Yet, failing to
intervene when students at school are the victims of cyberbulling, sexting, and other forms of
electronic abuse occurring outside of school may result in lawsuits filed by victims. It is a tricky
area, and school administrators must act wisely. The Center for Education Policy and Law at the
University of San Diego has posted on its website a summary of the law in this area, along with
model school board policies and student discipline rules. Also included is a comprehensive
summary of studies dealing with student ECD use. For more information go to
www.sandiego.edu/cepal, click on “Recent Studies,” and then on “Student Misuse of Electronic
Communication Devices On and Off Campus.”
California has begun to recognize the role of school officials in educating students about using
ECDs in appropriate ways. Education Code Section 51871.5 requires recipients of education
22
technology grants to educate students and teachers in compliance with guidelines issued by the
Superintendent of Public Instruction on the appropriate and ethical use of information technology
in the classroom. These include internet safety, plagiarism, and the significance of copyright law.
So far, efforts to extend this law to encompass cyberbullying, sexting, and harassment haven’t
been successful. However, see the update for Chapter 9 on changes in student discipline law to
encompass bullying and cyberbullying.
One other recent California court decision in this area is worth noting. The case involved a
student at UC-Berkeley who posted a high critical entry about Coalinga, her home town, on her
MySpace account. Six days after the student removed it, the principal of the town’s high school
submitted the entry to the local newspaper where it was published. The community reacted
negatively to the message, forcing the student’s family to move out of Coalinga and close the
family business. The student and members of her family sued the principal and the district for
invasion of privacy and intentional infliction of emotional distress. Both the trial court and the
court of appeal rejected the invasion of privacy claim, noting that material posted on social
networking sites like MySpace become public information. When the student posted the entry,
she made it available to anyone with a computer who had access to the site. Those seeing it could
then further disseminate it to others, thus opening the article to the public at large. However, the
court of appeal sent the case back to the lower court for a jury trial to determine whether the
alleged conduct by the principal and school district constituted intentional infliction of emotional
distress, a remedy available to anyone who is the target of a posted communication. Moreno v.
Hanford Sentinel, Inc., 91 Cal. Rptr.3d 858 (Cal. App. 5 Dist. 2009).
Page 233: Banning Students from Wearing Clothing Displaying the American Flag on
Cinco de Mayo Day Does Not Violate the First Amendment.
A federal district court has ruled that school administrators had sufficient justification for asking
three high school students to remove their shirts displaying the American flag or turn them inside
out on Cinco de Mayo day. Given ongoing racial tension and gang violence between Hispanic
and white students on the campus, the administrative directive fell within the reasonable forecast
of disruption condition set forth in Tinker v. Des Moines School District. The students argued that
other students wearing the colors of the Mexican flag were not ordered to do the same. However,
the court noted no evidence demonstrating that these students were likely to be targeted for
violence. The assistant principal further testified that he did not see any students wearing the
Mexican flag on their clothing that day, though he later did see newspaper photos of their doing
so. The plaintiffs also argued that the dress code policy prohibiting clothing that “disrupts school
activities” was unconstitutionally vague. However, the judge rejected the assertion, noting that
courts routinely defer to school administrators on the wording of dress codes. Dariano v. Morgan
Hill Unified School District, 822 F. Supp.2d 1037 (N.D. Cal. 2011).
Pages 240-241: U.S. Court of Appeals for the Ninth Circuit Expresses Different Views about
Teacher Classroom Speech.
In one 2011 decision, the U.S. Court of Appeals for the Ninth Circuit ruled that the Poway
Unified School District did not violate a high school math teacher’s free speech rights by
directing him to remove from his classroom two large banners with highlighted references to God
and the Creator. In overruling the lower court’s ruling to the contrary, the appeals court drew on
its Downs v. Los Angeles Unified School District decision discussed on these pages to point out
that a public school teacher is not speaking as a private citizen in the classroom but as the
spokesperson for the district. Thus, under the U.S. Supreme Court’s Pickering v. Board of
Education ruling, the school district has the authority to control what a teacher expresses in that
setting. As the court noted, “Because the speech at issue owes its existence to Johnson’s position
as a teacher, Poway acted well within constitutional limits in ordering Johnson not to speak in a
23
manner it did not desire.” The implication, of course, is that teachers have very little, if any,
academic freedom. Here, the district had the authority to assure that its employees not promote
religion contrary to the establishment clause of the First Amendment. The teacher argued that
other teachers at the high school had messages with religious themes posted in their classrooms,
e.g., a Tibetan prayer flag. However, the court noted that they were not intended to promote
religion but were used for secular purposes. Johnson v. Poway Unified School District, 658 F.3d
954 (9th Cir. 2011). The U.S. Supreme Court later refused to hear the case.
A different three-judge panel of the same court appeared to support a measure of academic
freedom for public school teachers in a decision reached a month before the Johnson decision.
This case involved a high school student’s challenge to comments he viewed as anti-religious
expressed during class by his AP European History teacher. The student contended that his right
to be free from religious hostility under the establishment clause of the First Amendment was
violated. Because the student had graduated, the appellate judges did not rule on his contention.
However, the part of the student’s lawsuit seeking damages against the teacher was still viable. In
discussing the damages issue, the judges noted that the U.S. Supreme Court has long supported
robust exchange of ideas in education. They pointed out that having a frank discussion about the
role of religion in history is an integral part of any advanced history course. Doing so fosters
student critical thinking and analytical abilities. At the same time, teachers must be sensitive to
students’ personal beliefs. In a key comment, the judges observed that “we must be careful not to
curb intellectual freedom by imposing dogmatic restrictions that chill teachers from adopting the
pedagogical methods they believe are most effective.” Given the lack of case law relating to when
a teacher crosses the line between permissible and impermissible discussion of religion in class,
the court opted to avoid entering this terrain and instead granted qualified immunity to the teacher
from damages, relying on the U.S. Supreme Court’s Pearson v Callahan discussion on page 31 of
this cumulative update. C.F. v. Capistrano Unified School District, 654 F.3d 975 (9th Cir. 2011).
The U.S. Supreme Court refused to hear the case on appeal.
CHAPTER 7
THE SCHOOL AND RELIGION
Page 252: Words “Under God” in Pledge of Allegiance Do Not Violate the First
Amendment.
In a two-to-one decision, the U.S. Court of Appeals for the Ninth Circuit overturned the trial
court ruling in 2010 by deciding that the Pledge of Allegiance does not violate the establishment
clause of the First Amendment. Congress' purpose in adding the words “under God” in 1954 was
to inspire patriotism, not promote religion. Newdow v. Rio Linda Union School District, 597 F.3d
1007. The majority reached this decision following a review of the context within which the
change was made, noting that the purpose was to recognize the religious history of the United
States in the same way as the national motto “In God We Trust” does on U.S. currency. The court
also ruled that California Education Code Section 52720 permitting use of the pledge during daily
patriotic exercises in public schools is constitutional. In a lengthy dissent, Judge Stephen
Reinhardt asserted that while the majority’s decision might be pleasing to the public, it cannot
mask the fact that Congress’ addition of “under God” clearly violates the first sentence of the
First Amendment that “Congress shall make no law respecting an establishment of religion.”
Reinhardt was one of two judges who struck down the pledge in the Ninth Circuit’s 2002 decision.
In a related matter, the legislature has added a measure providing that in lieu of saying the pledge
on a daily basis in public schools, instruction promoting an understanding of such terms as
“pledge,” “republic,” and “indivisible” and the understanding of the pledge can be given. If such
instruction focuses on the words of the pledge, then the giving of pledge must be included
24
(Education Code § 52730).
Page 254: Missing Case Reference.
The U.S. Supreme Court decision striking down the Alabama “silent meditation or prayer” law is
Wallace v. Jaffrey, 472 U.S. 38 (1985).
Page 265: School May Direct Wind Ensemble Not to Play Religious Work at
Commencement.
The U.S. Court of Appeals for the Ninth Circuit, whose jurisdiction encompasses a number of
western states including Washington and California, ruled against a student in Washington State
who sought to perform an instrumental version of “Ava Maria” at her high school graduation. The
year before, the school district had received complaints from graduation attendees when it
allowed the student choir to sing a vocal piece with references to “God,” “heaven,” and “angels.”
So when the Wind Ensemble chose “Ava Maria,” district officials directed that a secular piece be
performed instead. The Ninth Circuit recognized that instrumental music without lyrics is a form
of protected speech. And the school district did not challenge the student’s assertion that a limited
public forum existed at graduation because it allowed students to select musical pieces. The
question was whether the district was justified in denying the selection of “Ava Maria.” In a two-
to-one decision, the Ninth Circuit held that the district did have such authority. In a key passage,
the majority noted that “we confine our analysis to the narrow conclusion that when there is a
captive audience at a graduation ceremony, which spans a finite amount of time, and during
which the demand for equal time is so great that comparable non-religious musical works might
not be presented, it is reasonable for a school official to prohibit the performance of an obviously
religious piece” (p. 1095). In a footnote, the majority noted that the case did not involve
viewpoint discrimination, which would be impermissible, because the student conceded she was
not expressing any specific religious viewpoint but only sought to play “a pretty piece.” The
majority found that the district’s action served a secular governmental purpose, was neutral on the
subject of religion, and did not constitute excessive entanglement with religion. Nurre v.
Whitehead, 580 F.3d 1087 (9th Cir. 2009). The U.S. Supreme Court refused to hear the case on
appeal.
Page 271: More on the Ninth Circuit Truth v. Kent School District Decision.
In 2010, the U.S. Supreme Court overruled the Truth decision but not on grounds relating to
religion. That same year, the high court affirmed a Ninth Circuit decision that relied on Truth in
upholding UC-California's Hastings College of Law decision to reject the application of the
Christian Legal Society for status as a recognized student organization because it barred students
based on religion and sexual orientation. Christian Legal Society Chapter v. Martinez, 130 S.Ct.
2971. The thrust of all this is that the basic "accept all-comers" rationale of the Truth ruling as a
condition for approving student organizations remains valid.
Page 282: U.S. Supreme Court Makes it Harder to Challenge Tuition Tax Credits for
Religious Private School Attendance.
The Supreme Court ruled in 2011 that taxpayers are not positioned to challenge tuition tax credit
programs because, as suggested on this page, tax credits are not a form of government funding.
The case involved the Arizona tuition tax credit program. A group of taxpayers sought to
challenge the fact that student tuition organizations could be established by religious entities to
channel tax credits through grants to parents to pay tuition at private religious schools. This
decision almost certainly will result in increased use of tax credit programs to support private
school choice. Arizona Christian School Tuition Organization v. Winn, 131 S.Ct. 1436. In a
related matter, the Arizona general tuition tax credit program has been upheld by an Arizona
court of appeal. Green v. Garriott, 212 P.3d 96 (Ariz. App. Div 1, 2009).
25
CHAPTER 8
STUDENTS WITH DISABILITIES
Page 294: 1997 Amendments to Individuals with Disabilities Education Act Do Not
Overturn Rowley's Educational Benefit Standard. The U.S. Court of Appeals for the Ninth Circuit reversed a federal district court decision which
held that a school district was required to provide transition services to a student that exceeded
the "basic floor of opportunity" standard pronounced in Board of Education of Hendrick Hudson
School District v. Rowley. In examining the legislative history of the 1997 amendments to the
IDEA, the Ninth Circuit held that had Congress intended to change the educational benefit
standard articulated in Rowley, Congress would have expressed a clear intent to do so and did not.
Key to the Ninth Circuit's ruling was the fact that the definition of a free appropriate public
education remained unchanged in the 1997 amendments to the IDEA. J.L. v. Mercer Island
School District, 592 F.3d 938 (9th Cir. 2010).
Page 302: Completion of Initial Evaluation and IEP Team Meeting Within 60 Calendar
Days Appropriate Course.
Education Code Section 56043 (f)(2) explicitly provides for development of an individualized
education program within 30 days after the child is determined eligible at an IEP team meeting.
The California Department of Education, however, consistently opines that school districts must
complete initial evaluations and complete an IEP for students determined eligible within 60
calendar days after receipt of parent consent to assessment not including school breaks in excess
of five school days. While it is not clear why the plain language of Section 56043 (f)(2) is ignored,
the practical result is that school district's commonly err on the side of caution and complete both
the initial evaluation and resulting IEP team meeting to develop a program for an eligible student
within the 60-day timeline.
Page 314: Legislature Shifts Responsibility for Mental Health Services to School Districts.
With the passage of Assembly Bill 114 the California legislature amended key provisions of the
Education and Government Codes that governed the process for evaluating and serving IDEA-
eligible students with mental health needs to be inoperative effective July 1, 2011. The net effect
of these statutory amendments is that school districts rather than counties now have the primary
responsibility to evaluate and service IDEA-eligible students with mental health needs. It is
unclear at this time whether emergency regulations will be enacted to detail the specific
obligations that school districts have in regard to IDEA-eligible students with suspected or actual
mental health needs or whether school districts will look to the general obligation to make a
FAPE available for guidance to serve these students.
Page 315: Furlough Days Do Not Trigger Stay Put.
The U.S. Court of Appeals for the Ninth Circuit held that district-wide furlough days and a
shortened school year do not constitute a change in placement triggering stay put. The case arose
out of the State of Hawaii’s decision to close public school for 17 days during the 2009-2010
school year due to a fiscal crisis. The appellate court rejected the parents’ argument that stay put
entitled a child with an individualized education program to the level of services available prior to
the imposition of the furloughs and shortened school days. The court held that stay put does not
apply to system-wide administrative decisions. N.D. et al. v. State of Hawaii Department of
Education, 600 F.3d 1104 (9th Cir. 2010).
Page 316: Parents May Opt Their Children Out of Special Education. Recent amendments to the Code of Federal Regulations provide that parents may request that a
26
school district terminate the provision of special education services to their child. The Education
Code reflects these changes in Sections 56021.1 and 56346. The school district must honor the
request and cannot use the administrative hearing process to challenge the parents' decision. The
district must respond in writing to the request and inform the parent of the date on which services
will terminate. Districts are not required to delete records related to the prior provision of special
education services to the student. Once services terminate, the student is not entitled to the
benefits and protections of IDEA. There is a lurking question, however, as to how school districts
should address any issues that arise as a result of protections extended by Section 504 of the
Rehabilitation Act of 1973, which, in some instances, may extend to a child even though the
child's parents have revoked consent to services under IDEA. If parents elect for their child to
receive special education once more, the student is given an initial evaluation. Curiously, IDEA's
"child find" provision still applies to a student even after the student's parents have revoked
consent for special education services. As with many gray areas of special education law, the
safest course is often to offer assessment regardless of whether the parents intend to consent so as
to satisfy the child find obligation.
Page 321: Stay Put Obligations Related to Reimbursement Orders Clarified. The student, L.M., and the Capistrano Unified School District completed a due process hearing in
which the district prevailed on all issues. The student appealed, and a federal district court judge
determined that the school district committed a procedural violation that denied the student a free
appropriate public education by not affording one of the student's experts sufficient time to
observe the district's offered educational program. The federal district court ordered the school
district to reimburse the student's parents for the cost of privately obtained educational services.
The parents thereafter argued that the district had an on-going stay put obligation to fund the
services for which reimbursement was issued for the duration of the parties' litigation. The Ninth
Circuit, however, rejected the parents’ argument and held that the reimbursement was not stay put
because the federal district court judge never made any findings as to the appropriateness of the
placement for which reimbursement was issued. Accordingly, for a reimbursement order to give
way to a stay put obligation on behalf of the school district to continue to fund the services for
which reimbursement is ordered, there must also be a determination that the services for which
reimbursement are issued are appropriate. L.M. v. Capistrano Unified School District, 556 F.3d
900 (9th Cir. 2009).
Page 321: Ninth Circuit Addresses Standard for Admission of Additional Evidence in
Appeals.
The student, E.M., requested a due process hearing to challenge the determination of the Pajaro
Valley Unified School District that he was not eligible for special education and related services.
E.M. contended that the school district should have determined him eligible under the category of
specific learning disability or other health impairments in 2004. The Office of Administrative
Hearings found in favor of the school district and E.M. appealed that decision to federal district
court. E.M. obtained a private assessment in 2007 and sought to enter the new assessment into
the record for his appeal before the federal district court. The private assessment supported
E.M.’s position that he was eligible for special education and related services. IDEA provides that
in an appeal of a due process hearing the court shall hear additional evidence at the request of a
party. Various judicial decisions have held that the additional evidence may include relevant
events that occurred after the due process hearing. The federal district court denied E.M.’s request
to enter the new report into evidence and this finding among others was appealed to the Ninth
Circuit. The Ninth Circuit reversed the federal district court on this narrow issue. The Ninth
Circuit held that the new report was admissible because the report contained evidence relevant to
the school district’s determination in 2004 such as the 2007 determination that E.M. was eligible
for services and criticism of the school district’s 2004 determination that E.M. was not eligible
27
for services. The Ninth Circuit reached this holding over the objection of the school district,
which argued that the 2007 report was irrelevant to the school district’s determination on
ineligibility in 2004 as the report was not available to the district at that time and that the new
report should also not be considered on appeal because it utilized an assessment instrument which
was not first published until 2005. The Ninth Circuit rejected these arguments and ordered the
federal district court to consider the 2007 report in determining if the school district met its
obligations under the IDEA. E.M. v. Pajaro Valley Unified School District, 652 F.3d 999 (9th Cir.
2011).
Page 323: Receipt of Special Education Not a Prerequisite to Parents Pursuing
Reimbursement Claim. The student, T.A., was evaluated by the school district during his freshman year of high school
and determined not eligible for special education and related services. The student experienced
increasing educational difficulty during his sophomore year and was enrolled by his parents in a
private academy at their expense with a focus on educating children with special needs. The
student's parents requested an administrative hearing, and the administrative law judge
determined that the district failed to follow its obligation to appropriately assess the student and
failed to find him eligible under IDEA. The administrative law judge ordered the district to
reimburse the parents for the cost of the private academy. The district appealed that decision to a
federal district court, arguing that the 1997 amendments to IDEA categorically barred
reimbursement to private school students who have not "previously received special education
and related services under the authority of a public agency," which is technically what IDEA
states. The federal district court agreed with the school district's argument, and the parents
appealed to the Ninth Circuit, which reversed the case once more in the parents’ favor. The U.S.
Supreme Court agreed to hear the dispute and affirmed the decision by the Ninth Circuit. The
Court held that the 1997 amendments to IDEA did not pose a categorical bar to parents for
obtaining reimbursement if their children have not previously received special education from the
school district. The Court reasoned that the school district's argument would lead to absurd results
and require parents to accept inappropriate educational programs solely for the purpose of
enrolling their children in these programs to later seek reimbursement for private school
placement. Forest Grove School District v. T.A., 557 U.S. 230 (2009). Following remand from
the high court, the federal district court denied tuition reimbursement because placement in the
private school was for matters unrelated to the student’s disabilities. The Ninth Circuit
subsequently affirmed that decision.
Page 323: Private School Need Not Meet All of Student’s Needs for Parents to Receive
Reimbursement if School District Denies FAPE.
The U.S. Court of Appeals for the Ninth Circuit affirmed a federal district court decision holding
that if a school district denies a FAPE to a student, the parents may receive full reimbursement for
a private placement even though the private placement does not meet all of the student’s needs.
At the administrative due process hearing, the judge determined that while the school district had
denied the student a FAPE, the parents were only entitled to partial reimbursement because the
private school did not meet all of the student’s unique needs. The Ninth Circuit held that parents
need not show that a private placement furnishes every special service necessary to maximize
their child’s potential. Rather, they need only demonstrate that the placement provides
educational instruction designed to meet the unique needs of a handicapped child, supported by
such services as are necessary to permit the child to benefit from instruction. C.B. v. Garden
Grove Unified School District, 635 F.3d 1155 (9th Cir.), cert. denied, 132 S.Ct. 500 (2011).
Page 324: Misclassification of a Student Even Though Not a Denial of FAPE Entitles
Parents to Attorneys' Fees.
28
The U.S. Court of Appeals for the Ninth Circuit has ruled that parents are entitled to attorneys'
fees and costs after an administrative law judge determined that, though the child has not denied
a free appropriate public education, the child's eligibility status under IDEA should be changed
from mental retardation to autism. In determining that the parents met the threshold for prevailing
party status, the Ninth Circuit noted that Title 5 of the California Code of Regulations requires a
special education teacher to hold a credential specific to disability of the child (e.g., for autism
rather than mental retardation based on the ruling regarding eligibility category). The decision is
illustrative of the low threshold necessary for establishing prevailing party status in consideration
of the numerous judicial decisions holding that a child’s unique needs, not the child’s disability
category, is the primary consideration in developing an appropriate program. While the Ninth
Circuit ruled in an earlier decision that attorney-parents who provide legal services for their own
child are not eligible for attorneys' fees, such is not the case when a distant relative provides the
legal services. Here the grandmother represented the child, and thus the parents can recover
attorneys' fees. Weissburg v. Lancaster School District, 591 F.3d 1255 (9th Cir. 2010).
Page 324: Ninth Circuit Reverses School District’s Award of Attorneys’ Fees Against
Parents.
The U.S. Court of Appeals for the Ninth Circuit reversed a federal district court decision in which
a school district was awarded approximately $140,000 in attorneys’ fees and costs against parents
who unsuccessfully appealed an IDEA administrative hearing. The parents filed an administrative
due process hearing request against the district alleging that they had been denied a FAPE over a
period of three school years. The district prevailed in the hearing, and the parents appealed the
decision to a federal district court. The parents added non-IDEA claims under the Americans with
Disabilities Act, Section 504 of the Rehabilitation Act of 1973, and the due process clause of the
United States Constitution to their appeal. The district court upheld the underlying due process
hearing decision in favor of the school district and further held that the parents appeal was
without foundation and brought for an improper purpose. The district court also dismissed the
non-IDEA claims and held that the parent had failed to allege facts beyond the bare minimum
necessary to support their IDEA claims. A subsequent effort by the parents to amend their
complaint to include additional allegations regarding the non-IDEA claims was denied as
untimely by the district court.
The Ninth Circuit held that the school district had not denied the student a FAPE but reversed that
portion of the federal district court decision that determined that the parents had pursued an
improper appeal. While the federal district court held that the appeal was unfounded because the
parents did not identify or offer evidence of requested compensatory education services, the Ninth
Circuit held that the parents’ request for unspecified compensatory education services was
enough for the appeal to be proper. The Ninth Circuit held that it was sufficient for the parents to
request compensatory education and raise plausible arguments as to why the compensatory
education should be awarded. The Ninth Circuit cautioned that the fact that the parents’
arguments did not succeed does not mean that the arguments were frivolous. The Ninth Circuit
further held that while it was within the discretion of the district court to deny the parents’
amendment to their complaint regarding the non-IDEA claims, it was inappropriate for the court
to hold that the parents’ effort to amend the complaint was frivolous. In underscoring the
relatively difficult burden a school district must meet to obtain an entitlement for attorneys’ fees
against parents, the Ninth Circuit noted that as long as plaintiffs present evidence that, if believed
by the fact-finder, would give them relief, the case is not per se frivolous and will not support an
award of attorneys’ fees. R.P. v. Prescott Unified School District, 631 F.3d 1117 (9th Cir. 2011).
Page 327: Parents May Seek Money Damages Under Section 504 for Failure to Provide
Special Education Services.
29
The U.S. Court of Appeals for the Ninth Circuit has held that parents may utilize Section 504 of
the Rehabilitation Act of 1973 (Section 504) to seek money damages for a school district’s failure
to provide special education services. The parents of two children with autism prevailed in an
administrative hearing held under the Individuals with Disabilities Education Act (IDEA) by
demonstrating that the Hawaii Department of Education did not provide appropriate services to
their children. The parents subsequently initiated a separate legal action under Section 504
seeking money damages against the school district. The federal district court held that the parents
did not present sufficient evidence to support the claims under Section 504 and ruled in favor of
the Hawaii Department of Education. The parents appealed. The Ninth Circuit ruled in favor of
the parents on appeal and held that a school district can violate Section 504 and be liable for
monetary damages if: the student needs specific services to enjoy meaningful access to the
benefits of a public education, the school district was on notice that the student needed the
services but did not provide the services, and the needed services were available as a reasonable
accommodation. The Ninth Circuit also held that a school district can be liable for monetary
damages if the district acts with “deliberate indifference,” which occurs if the district has
knowledge that a harm to a federally protected right is substantially likely (e.g., knowledge that
the a student needs autism-specific services) and the district fails to act upon the likelihood (e.g.,
no action is undertaken to investigate whether the students require the autism-specific services).
The Ninth Circuit remanded the case to the federal district court to adjudicate the parents’ claims
under Section 504. The case is significant because money damages are not available under IDEA.
Mark H. v. Hamamoto, 620 F.3d 1090 (9th Cir. 2010).
Page 327: Ninth Circuit Significantly Narrows Exhaustion Requirement.
The U.S. Court of Appeals for the Ninth Circuit has held that parents are generally not required to
pursue an administrative due process hearing before proceeding with litigation in state or federal
court if the parents are seeking remedies that are not available under the IDEA such as money
damages. The case is significant because it reverses prior decisional law which held that parents
are generally required to pursue an administrative due process hearing prior to initiating litigation
in state or federal court if the parents are raising claims that can be addressed to any degree under
IDEA. The new decision is a result of Windy Payne’s lawsuit against her local school district in
regard to her allegation that her disabled child was improperly placed in a “time-out” room as
punishment. Ms. Payne alleged that her child was locked in the room without supervision and that
her child responded by removing his clothing and urinating or defecating on himself. Even
though her child had an IEP at the time of the alleged events, Ms. Payne never requested an
administrative due process hearing under IDEA and instead filed a lawsuit in federal court against
the district and individual district employees, including the child’s teacher, alleging numerous
violations of the United States Constitution and tort-type claims under Washington State law.
Prior to the Ninth Circuit’s decision, the lower court had dismissed Ms. Payne’s lawsuit based on
her failure to first pursue an administrative due process hearing under IDEA before initiating the
federal lawsuit. The Ninth Circuit held that Ms. Payne was not required to first pursue an
administrative due process hearing under IDEA, because non-IDEA claims that do not seek relief
available under IDEA are not subject to the exhaustion requirement, even if they allege injuries
that could conceivably have been redressed by IDEA. Here, the mother was seeking money
damages, not a change in services under IDEA. Payne v. Peninsula School District, 653 F.3d 863
(9th Cir. 2011), cert. denied, 132 S.Ct. 1540 (2012)
CHAPTER 9
STUDENT DISCIPLINE
Page 338 and Table 9-1: Elaboration on Cyberbullying as a Suspendable/Expellable
Offense.
30
Given growing concern about face-to-face bullying and bullying via electronic means
(cyberbullying), the legislature moved the reference to cyberbullying in Education Code Section
32261 to Education Code Section 48900 (r) in 2011 and expanded it some. The changes go into
effect on July 1, 2012. Bullying is defined to mean severe or pervasive physical or verbal act or
conduct, including communications in writing or by means of an electronic act, committed by a
student or group of students that constitutes sexual harassment, hate violence, or threats or
intimidation and that is directed toward one or more students. Electronic act includes, but is not
limited to, a message, text, sound, image or posting on a social Internet website that has such
features as a "burn page" of another student, an impersonation of another student, or a false
profile of an actual student -- all for bullying purposes. Transmission can be by such electronic
communication devices as a telephone, cell phone, computer, or pager.
To be grounds for discipline, bullying or cyberbullying must place a student or students in fear of harm to themselves or property; cause substantial detrimental effect to physical or mental health;
cause substantial interference with academic performance; or cause substantial interference with
ability to participate or benefit from services, activities, or privileges provided by a school. This
law can be applied to students for acts related to school activity or attendance that occur at any
time, including while on school grounds, going to and from school, during lunch period on or off
campus, and during or coming to/from a school-sponsored activity.
Section 653.2 has been added to the Penal Code providing that any person who through use of an
ECD intends to place another person in fear for his or her safety or the safety of the person’s
family and, without the person’s consent, electronically transmits personally identifying
information such as a digital image or harassing comments to a third party for the purpose of
causing unwanted physical contact, injury, or harassment to the person is guilty of a misdemeanor
punishable up to a year in jail and/or a fine of not more than $1,000 if the electronic
communication likely would cause such harm.
CHAPTER 10
PUBLIC ACCESS, PRIVACY, AND STUDENT SEARCH AND SEIZURE
Page 374: Governing Boards Have Some Discretion in Posting Agenda Items From
Members of the Public.
Education Code Section 35145.5 requires that public school governing boards allow members of
the public to place matters directly related to school business on the governing board’s meeting
agenda. But if the matter does not directly relate to school business, the board has discretion not
to include it. Such was the case when the San Jose Unified School District governing board
refused to add to the agenda a parent’s request that a student club’s holding a “Rainbow Day” at a
particular school be changed to an anti-bullying day. The club’s desire was to promote anti-
bullying awareness for gay, lesbian, bisexual, and transgendered students. The appellate court
agreed with the school board, noting that Rainbow Day was the decision of the student club, not
the school board. The court did not address whether the district would have an obligation to place
on its agenda a parental request that an anti-bullying day be set up. Mooney v. Garcia, 143 Cal.
Rptr.3d 195 (Cal. App. 6 Dist. 2012).
Page 376: Attorney General Advises that Superintendent May Not Prohibit an
Administrator from Attending and Speaking at a Public School Board Meeting Involving
the Administrator’s Demotion.
The attorney general was asked whether a school superintendent in his capacity as a supervisor
could prohibit an assistant school principal who was demoted to a teaching position from
attending and addressing his demotion at a school board meeting. Noting that the school board
31
had opted to address the demotion in a public rather than a closed meeting, the attorney general
advised that as the board’s chief executive officer the superintendent could not restrict the
administrator either from attending or speaking at the meeting relative to his demotion (90 Ops.
Atty. Gen. 47, 2007).
Page 382: Public Records Act Applies to the California Interscholastic Federation.
The California legislature has amended Education Code Section 33353, which describes the role
of the California Interscholastic Federation (CIF), to provide that the California Public Records
Act applies to the Federation. Like a public school district, CIF is subject to exemptions from
disclosure in the interest of protecting student and school personnel confidentiality. See pp. 382-
385 of California School Law for a discussion of exemptions from disclosure.
Page 388: Safe Place to Learn Act Has Been Expanded.
See update for p. 55 above.
Page 389: Changes in the Family Educational Rights and Privacy Act (FERPA).
The U.S. Department of Education’s Family Policy Compliance Office has revised the
regulations pertaining to FERPA. Some of the more significant changes are:
FERPA now applies not only when students are in the classroom but also when they are involved in school videoconferences and Internet communication sessions when they are
not in the classroom.
Student date and place of birth have been moved from directory information to personally identifiable information, meaning that they cannot be released upon request without
consent. “Biometric” records also fall into this category. These include such biological or
behavioral characteristics as fingerprints, facial characteristics, and handwriting.
Educational agencies including schools can release personally identifiable information without consent to contractors, consultants, volunteers, or other entities to whom the
agencies have outsourced institutional services or functions so long as the services or
functions are those that otherwise would be provided by education agency personnel, the
use and maintenance of the records remain under control of the agency, and the
requirements for disclosure of personally identifiable information are followed. When the
work is over, the records must be destroyed or returned.
While student education records can be released to school personnel where there is a legitimate educational interest, only those records directly related to that interest may be
released. This may pose problems for schools with software programs that permit
teachers to retrieve all of a student’s records.
Schools can disclose personally identifiable information without consent to appropriate parties when there is an articulable and significant threat to the health or safety of
students and others.
Schools must continue to honor requests made by former students when they were enrolled that directory information not be released unless the former student rescinds the
opt-out.
Releasing a student’s records with personally identifiable information deleted (the regulations use the term “de-identify”) has been made a bit more complicated in that the
education agency must make a reasonable determination before release that the student’s
identity cannot be discerned by piecing together other releases.
For more information, go to the Code of Federal Regulations website as listed in Appendix C of
California School Law and click on Title 34, Part 99, Section 1 and following sections.
32
Page 401: U.S. Supreme Court Rules against the Underwear Search of a Student.
As noted on this page, personally intrusive searches are impermissible under California law but
not in other states. With only Justice Clarence Thomas dissenting, the U.S. Supreme Court has
ruled that for such searches to be conducted in states that permit them, “the support of reasonable
suspicion of danger or of resort to underwear for hiding evidence of wrongdoing” must be
established before searches can encompass exposure of intimate parts. This higher level of
justification is necessary, the majority noted, because of the intrusiveness of the search and the
resulting degradation the subject may feel when such an intrusive search is conducted. The case
involved a search of Arizona eighth grade honors student Savana Redding, who had no history of
disciplinary problems, after another student told the assistant principal that Savana had given her
prescription-strength ibuprofen pills. Savana denied doing so, and a search of her backpack
revealed nothing. The assistant principal asked his female administrative assistant to escort
Savana to the nurse’s office for a more intrusive search that included moving her bra to the side
and pulling out the elastic of her underpants. No pills were found. Savana’s mother filed suit
against the school district and its administrators for violating her daughter’s Fourth Amendment
rights. The school administrators were given qualified immunity from liability, but the case was
returned to the lower court to determine whether the school district could be liable. Sanford
Unified School District #1 v. Redding, 129 S.Ct. 2633 (2009).
Page 402: U.S. Supreme Court Rules on Application of Miranda Rights to Police
Questioning of Juveniles.
In a case involving police interrogation of a North Carolina seventh grader taken from his
classroom to a school conference room, the U.S. Supreme Court ruled that age is one factor in
determining whether the student is entitled to having Miranda warnings given prior to police
questioning in a custodial setting. This means either that the officer knew the child’s age or that
age would have been objectively apparent to a reasonable officer. In this case, the student
asserted that he confessed to a theft without knowing that he didn’t have to do so. The Court sent
the matter back to the trial court for further consideration as whether the student was in a
custodial setting, his statements involuntary, and his Miranda rights violated. J.D.B. v. North
Carolina, 131 S.Ct. 2394 (2011). Note that this decision does not apply to student questioning by
school officials. Nor does it pertain to student confessions in student discipline matters. The
ruling applies only to police questioning.
Page 403: More on Searches Initiated by Police Officers but Conducted by School Officials.
As noted on pp. 396-397, neither the U.S. Supreme Court nor the California Supreme Court has
addressed the standards for a student search when police officers initiate, but do not conduct, a
student search. A California appellate court addressed this issue in 2010. The case involved
information passed on to a narcotics police officer by a confidential informant that a student had
an illegal drug in his pants. The narcotics officer passed the information on to the police officer
assigned to the school. That officer in turn informed the vice principal. Unlike the situation in In
re Williams J. discussed on this page, the officer did not conduct the search or direct the school
official to do so. The vice principal, however, decided that she needed to conduct a search in the
interest of school safety but was concerned about her own safety and asked the narcotics officer,
who had come to the school, and another police officer to accompany her. The student was in a
PE class at the time, so the vice principal went to the student’s locker, had it unlocked, and found
a plastic bag containing several Ecstasy pills in the student’s trousers. The evidence was turned
over to the police and used in a juvenile proceeding. Since both the decision to conduct the search
and the actual search were done by the vice principal, the reasonable cause standard was
appropriate, and the student’s motion to suppress the evidence was denied. In re K.S., 108 Cal.
Rptr.3d 32 (Cal. App. 1 Dist. 2010).
33
Page 405: Automatic Searches of Students Who Leave Campus and Return Upheld.
A California court of appeal has upheld a high school policy providing that students who leave
campus and then return during the school day are automatically subject to a search. The case
arose when the assistant principal asked Sean, who said he left campus to retrieve a notebook and
returned, to empty his pockets. A plastic bag containing Ecstasy pills materialized. The assistant
principal contacted the police. Sean sought to challenge the juvenile court decision placing him
on probation after he admitted to possessing the controlled substance for sale that the search was
illegal. In a two-to-one decision, the appellate court rejected the contention, noting the importance
of keeping schools safe and the fact that all students and their parents are informed of the search
policy. Further, the search was conducted without touching the student. The two judges viewed
the search as similar to the metal detector search upheld in In re Latasha W. discussed on page
405. The dissenting judge pointed out that the requirement of reasonable suspicion for the search
of a student as set forth in both the U.S. and California supreme courts was not met and thus the
school’s search policy is unconstitutional. Because further litigation is likely on this issue, school
officials should consult with the school’s attorney before instituting or following a similar policy.
In re Sean A., 120 Cal. Rptr.3d 72 (Cal. App. 4 Dist. 2010).
Page 406: Do the Relaxed T.L.O. Standards Apply When Children are Removed from
Classes for Interrogation by a Child Protective Services Caseworker Accompanied by Law
Enforcement?
In a case from Oregon, the U.S. Court of Appeals for the Ninth Circuit said no, but the decision
was later vacated by the U.S. Supreme Court. The case involved a nine-year-old female student
who was removed from her classroom for two hours and interrogated by a child protective
services caseworker regarding possible sexual abuse from her father. A deputy sheriff with a
holstered firearm was present during the interrogation but did not participate in it. The child later
maintained that she did not speak ill of her father until near the end of the interrogation when she
just began saying yes to whatever questions the caseworker asked. The child’s mother later filed a
lawsuit against the caseworker and the sheriff contending the child’s classroom removal and
prolonged questioning constituted an unconstitutional seizure under the Fourth Amendment. The
Ninth Circuit held that the relaxed T.L.O. v. New Jersey standards for conducting searches and
seizures of students by public school officials do not apply to seizures and interrogations by
social services and law enforcement personnel. In the absence of a warrant, a court order, exigent
circumstances, or parental consent, such a removal and interrogation is a violation of the Fourth
Amendment. However, the Supreme Court later ruled that because the student had moved out of
state, the matter was moot. The high court vacated the Ninth Circuit decision (Camreta v. Greene,
131 S.Ct. 2020 (U.S. Sup. Ct. 2011). While Ninth Circuit decision now provides no precedent, it
does suggest how the appeals court would rule in the future and thus offers guidance for these
kinds of interrogations.
CHAPTER 11
RACE AND GENDER DISCRIMINATION
Page 425: Friery Case Ends.
The case was dismissed when Friery failed to respond to an order to show cause why the appeal
should not be dismissed for mootness or lack of jurisdiction. Friery v. Los Angeles Unified School
District, 329 Fed.Appx. 173 (9th Cir. 2009).
Page 429: Berkeley Unified School District’s Diversity Program and Los Angeles Unified
School District’s Magnet School Racial Balancing Program Upheld.
A California court of appeal has rejected a lawsuit against the Berkeley district’s innovative and
carefully crafted plan to address de facto residential segregation. The elementary school
34
attendance plan has parents rank-order three of eleven schools for their children. The district then
assigns students to reflect parent preferences but within constraints of six priority categories:
students currently attending the school who live within the school’s attendance zone, students
attending the school who live outside the zone, siblings of students currently attending the school,
school district residents not attending the school who live within the zone, school district
residents not attending the school who live outside the zone, and nonresidents wanting an
interdistrict transfer. Students in each of these six priority categories are given a diversity rating
of one, two, or three for their planning area of four to six city blocks based on the average
household income for the planning area, the average adult education for the planning area, and
the percentage of students of color in the planning area. All students in a planning area receive the
same diversity score regardless of their individual race. Students from each of the categories are
then assigned proportionately to individual schools. The goal is to have each school reflect the
racial and socioeconomic diversity of its attendance zone.
The high school attendance plan has students rank order their choice of six academic programs at
the district’s single high school. Students are assigned a one, two, or three diversity category
based on the average household income, average adult education, and percentage of students of
color in their planning area. The district then determines the number of students who may enroll
from the three diversity categories in each academic program to match the diversity of the high
school as a whole. A computer randomly selects students for each program and assigns them to
their highest ranked program choice where there are openings.
The court of appeal agreed with the trial court that as crafted, the student assignment plan does
not violate Proposition 209. The proposition, the judges noted, prohibits unequal treatment of
particular persons or groups of persons but does not prohibit the collection and consideration of
community-wide demographic factors. Further, the district does not use the race of an individual
student or student group in student assignment. Rather, the district reviews the racial composition
of a neighborhood to determine its social diversity and then, based on the degree of diversity,
assigns students to schools. White students and students of color from the same neighborhood
receive the same diversity rating and same treatment. American Civil Rights Foundation v.
Berkeley Unified School District, 90 Cal. Rptr.3d 789 (Cal. App. 1 Dist. 2009).
A few months earlier, a different court of appeal rejected a lawsuit filed by the American Civil
Rights Foundation against the use of racial and ethnic preferences by the Los Angeles Unified
School District for assignment to the district’s magnet schools. The court ruled that the 1981 final
court order ending the superior court’s supervision of the district’s desegregation plan required
the district to continue to consider race in magnet school assignment to ameliorate the effects of
segregation. American Civil Rights Foundation v. Los Angeles Unified School District, 86 Cal.
Rptr.3d 754 (Cal. App. 2 Dist. 2008).
Page 434: School Violates Title IX in Failing to Provide Equal Athletic Opportunities to
Female Athletes.
Female students attending Castle Park High School in the Sweetwater school district filed a class
action lawsuit against the district for denying them equal athletic opportunities. In deciding
whether to grant summary judgment in favor of the students, the federal district court noted that
three conditions must be fulfilled under Title IX. First, athletic opportunities for male and female
students must be substantially proportionate to their enrollment. Here, girls constituted 45.5
percent of the high school population but only 38.7% of athletic participants. Thus, this condition
was not met. Second, if the respective athletic participation is not proportionate, the school can
still show substantial compliance with Title IX if there is evidence of a history of program
expansion to meet the needs of the underrepresented gender. Here, no such expansion was evident.
35
Third, even if the first two conditions are not met, the school can show substantial compliance
with Title IX if it effectively and fully accommodates the needs of the statistically
underrepresented gender. The federal judge found that the district could not meet this condition
either, citing evidence produced by the female plaintiffs that despite interest in field hockey,
tennis, and water polo by females, the school did not offer or discontinued these sports because it
claimed it could not find coaches. The judge granted summary judgment in favor of the female
athletes and sent the case back to the federal magistrate for further proceedings. Ollier v.
Sweetwater Union High School District, 604 F. Supp.2d 1264 (S.D. Cal 2009).
Pages 440-441: Safe Place to Learn Act Expanded; Gender Discrimination Expanded in the
Education Code and Unruh Civil Rights Act.
Effective July 2012, the Safe Place to Learn Act has been amended to require the California
Department of Education to assure that all schools have adopted a policy prohibiting intimidation
and bullying as well as discrimination and harassment based on actual or perceived characteristics
related to disability, gender, gender identity, gender expression, nationality, race or ethnicity,
religion sexual orientation, or association with a person or group with one or more of these actual
or perceived characteristics (Educ. Code § 234 and following sections). The policy is to be posted
in staff lounges and student government meeting rooms. School personnel are to take immediate
steps to enforce the policy when such behavior is observed. The policy is to include a time line to
investigate and resolve complaints. Also now known as "Seth's Law," the Safe Place to Learn Act
was expanded following pervasive harassment and bullying of a thirteen-year-old gay student in
the Tehachapi Unified School District, resulting in his hanging himself.
The term “gender” in Education Code Section 210.7 has been expanded to encompass gender
expression as well as gender-related appearance. Genetic information has been added as a
protected category within the Unruh Civil Rights Act. As amended in 2011, the term “sex” in the
Act includes, but is not limited to, pregnancy, childbirth, or medical conditions related to
pregnancy or childbirth. The term “gender” encompasses sex and includes a person’s gender
identity and gender expression whether or not stereotypically associated with the person’s
assigned sex at birth.
Page 441: Court Decides Unruh Civil Rights Act Does Not Apply to Religious Private
Schools.
A California court of appeal has ruled that the Unruh Civil Rights Act does not apply to religious
private schools and therefore the decision of the California Lutheran High School (CLHS) to
expel two female students for their same-sex relationship does not constitute discrimination on
the basis of sexual orientation under the Act. The school became aware of the apparent
relationship when a student reported to a teacher that the MySpace pages of the two female
students revealed their relationship to each other. After reviewing the pages, the teacher informed
the principal, who confronted the two students. According to the principal, the girls said they
loved each other and had told other students there were lesbians. Because such a relationship
violated the school’s Christian Conduct rule, the students were expelled. The Unruh Act was
enacted in 1959 to expand anti-discrimination law to business establishments. The court of appeal
noted two California Supreme Court rulings were germane to its ruling, the first extending the
Unruh Act to a member-owned nonprofit golf and country club where business transactions are
regularly conducted on the club’s premises and the second declining to extend the Act to the Boy
Scouts and similar charitable, expressive, and social organizations. Here, the court ruled that
CLHS is more similar to the Boy Scouts as an expressive social organization whose primary
function is inculcation of its values rather than a business establishment. The court also pointed
out that the California Attorney General had issued a decision in 1998 that private religious
schools are not subject to the Unruh Act. Thus, CLHS did not violate the Unruh Act when it
36
expelled the two girls because of their apparent sexual relationship. The trial court acted
appropriately when it granted summary judgment to the school on the Unruh Act claim. Doe v.
California Lutheran High School, 88 Cal. Rptr.3d 475 (Cal. App. 4 Dist. 2009).
CHAPTER 12
LEGAL LIABILITY
Page 451: Lack of Effective Supervision in After-School Voluntary Playground Program
Poses Liability.
As noted on this page, supervision is necessary if a school allows students on school grounds
before or after school hours. A provision of the California Code of Regulations provides as much,
stating that principals are required to provide supervision by certificated employees for students
who are school playgrounds “during recess and other intermissions and before and after school”
(Title 5, Section 5552). If supervision is inadequate, liability may attach. In this case, the
elementary school offered a supervised after-school playground program free of cost. Students
could come and go voluntarily. Students were told to stay on a portion of the school campus
where the program was offered but there were no clear defining boundaries. On the day in
question, four second grade students wandered off the area to an unlocked storage shed. There,
one student was sexually assaulted. The four students were known to be members of a group
called the “kissing club.” At the time, the one supervisor assigned to the playground program was
supervising 113 students. A California court of appeal overturned the trial court’s dismissal of the
case, noting that the duty to supervise students on school premises is well established and
particularly important in the context of immature elementary students. Here, the presence of only
one supervisor, the large number of young children to be supervised, and accessibility of children
to the unlocked shed raised questions about whether the duty of care owed the children was
breached and whether that breach was a proximate cause of the student’s injuries. The case was
sent back to the trial court for further proceedings. J. H. v. Los Angeles Unified School District,
107 Cal. Rptr.3d 182 (Cal. App. 2 Dist. 2010).
Page 455: California Supreme Court Issues Decision on District Liability When School
Personnel Engage in Sexual Misconduct With Students.
The California Supreme Court drew on the Virginia G. v. ABC Unified School District decision to
set forth grounds for determining when a school district and presumably a charter school can be
held liable for sexual misconduct with students. The case involved a guidance counselor who
drove the student, who was about fourteen years old, home from school and spent long hours with
him on and off high school premises including the student’s home over a period of many months.
The counselor performed various sexual acts on the student and required him to perform similar
acts on her. Relying on its earlier John R. decision, the high court agreed with the appellate court
that the counselor was not acting in the scope of employment when this occurred and thus the
district bears no liability under the Tort Claims Act for her actions. However, the high court
disagreed with the appellate court that the district could not be liable on other grounds. If it could
be shown that district administrators were negligent in using reasonable measures of hiring,
supervising, and retaining the counselor to protect students from foreseeable harm, then liability
attaches under Government Code Section 815.2 of the Tort Claims Act (see Table 12.1 on p. 448).
This is so because students have a right to a safe schooling environment and because school
administrators and supervisors, like teachers, have a duty to provide it. However, the justices
noted that establishing the link between administrator action and the harm may be difficult,
because the final hiring and firing decision is left to others. Even if such negligence is established,
the greater share of fault ordinarily will lie with the employee who engaged in the misconduct.
C. A. v. William S. Hart Union High School District, 138 Cal. Rptr.3d 1 (Cal. 2012).
37
Page 457: Protecting Student Athletes from Concussions and Head Injuries.
The legislature has enacted a law providing that athletes suspected of having sustained a
concussion or head injury during an athletic activity outside the regular school day are to be
immediately removed from the activity for the remainder of the day and not permitted to return
until evaluated by a licensed health care provider (Education Code § 49475). This law does not
apply to physical education courses. Given potential litigation in both state and federal courts
when students suffer severe head injuries, this law is a significant preventive measure. It went
into effect in January 2012.
Page 462: School District’s Duty of Reasonable Care in Providing Bus Transportation
Includes Boarding and Exiting the Bus. First grader boarded the school bus and then, thinking he saw his father’ car in the parking lot, got
off the bus while it was still on the campus. When he couldn’t locate the car, he walked with
other students to his designated drop-off point and suffered injuries when struck by a car while
trying to cross a busy street. The parents sued the school district, alleging failure to supervise
their child. The district argued that its supervisory duty under Education Code Section 44808
extends only to transporting students. Here the student wasn’t being transported. The appellate
court noted that if a district provides transportation, Section 39831.2 requires that the district
develop a transportation safety plan that encompasses procedures for boarding and exiting the
buses. The court ruled that the matter should be left to a jury to determine if the bus driver and the
staff monitors who were on-site provided reasonable care in allowing the student to exit the bus
before he left school premises. Eric M. v. Cajon Valley Union School District, 95 Cal. Rptr.3d
428 (Cal. App. 4 Dist. 2009).
Page 464: More on Field Trips.
A California court of appeal has ruled that the immunity given to school districts, charter schools,
and the state against claims from students and parents arising from voluntary field trips or
excursions under Education Code Section 35330 is not limited to the entity sponsoring the field
trip. Any district or school that is a significant participant in conducting the field trip is also
immune. The case involved the San Diego County Office of Education (SDCOE), which owns
and operates an outdoor school facility for science-related programs. Parents of a McCabe Union
School District student who suffered a fatal asthma coronary attack while at the camp sued
SDCOE. The appellate court agreed with the trial court that Education Code Section 35330
should be interpreted to grant immunity to SDCOE as a key participant in the field trip experience.
Sanchez v. San Diego County Office of Education, 106 Cal. Rptr.3d 750 (Cal. App. 4 Dist. 2010).
Note also that Section 35331 requires governing boards of districts conducting excursions and
field trips to provide medical and hospital services for students while on field trips through an
insurance policy or nonprofit membership corporation.
Page 467: Negligent Supervision and Dangerous Condition of Public Property of Particular
Concern When Special Needs Students Suffer Harm.
A California court of appeal overturned a trial court’s dismissal of a claim against a school
district that the sexual assault of a student with special needs in an alcove beneath a stairwell
resulted from negligent supervision and the dangerous condition of public property under Section
835 of the Tort Claims Act. The 14-year-old student was led to the alcove by another special
needs student. A chain-link fence separated the alcove from an adjoining public sidewalk. A
parent observed the act and alerted school personnel. The court of appeals noted that summary
judgment for the school district was not warranted on the negligent supervision claim because the
alcove was hidden from view by school officials and expert testimony indicated that adequate
supervision was lacking. The appellate court pointed out that it is foreseeable that students with
special needs may be victimized by other students even in the absence of prior similar
38
occurrences. The court also referenced Constantinescu v. Valley Unified School District discussed
on page 468 of California School Law in rejecting summary judgment on the dangerous condition
of public property claim. Here, failure of the district to erect a fence or other barrier to prevent
access to the hidden alcove may have constituted a dangerous condition of public property from
the standpoint of students with special needs. Jennifer C. v. Los Angeles Unified School District,
86 Cal. Rptr.3d 274 (Cal. App. 2 Dist. 2008).
Page 471: Can School Counselors be Liable for Not Informing Parents or the School
Principal about Student Pregnancy-Related or Abortion-Related Information and the
Student Suffers Harm That Could Have Been Averted by Reporting?
The California Attorney General answers no in the context of Education Code Section 49602 (c).
As indicated on page 470 in the main volume, personal information that a student who is twelve
years old or older provides to a counselor is confidential and the counselor may not be subject to
any civil or criminal liability for nondisclosure under this section. As noted on page 471, there are
two exceptions to nondisclosure. However, the decision whether to disclose is left to the
discretion of the counselor. The attorney general advises that if the counselor opts not to disclose
information to the parent or school principal and the minor thereafter suffers harm that could have
been averted by disclosure, the counselor is not liable for negligence for violating this section.
Nor is the school district vicariously liable under the Tort Claims Act. Conversely, if the
counselor does notify the parents or school principal about pregnancy or abortion information
involving the student, doing so does not violate the student’s privacy rights. 94 Ops.Atty.Gen.
111 (2011).
Page 478: More Flexibility for Federal Judges in Section 1983 Cases Involving School
Personnel.
In 2009 the U.S. Supreme Court gave lower federal court judges some flexibility in deciding
liability questions in Section 1983 lawsuits against public officials. If it is possible to decide
qualified immunity questions without first wrestling with having to identify the specific nature of
the federal right involved, the court may do so. For example, it may be clear from the start that
the federal right at issue is so amorphous or disputatious that qualified immunity should be
granted to the public official right away. In other cases, the question may be much closer and
require consideration of the right at stake. The federal judge now has the authority to make the
call. Pearson v. Callahan, 129 S.Ct. 808 (2009). However, in a later ruling, the Supreme Court
noted that if qualified immunity is granted by a lower appellate court and no consideration given
to the dimensions of the asserted constitutional right at issue, prevailing public officials may
bring a claim to the U.S. Supreme Court seeking clarification of the dimensions of the asserted
constitutional right. This way, they have the opportunity of learning what kind of behavior to
avoid in the future so as not to violate a constitutionally protected right, assuming the Court
chooses to review the claim. The high court sidestepped deciding whether public officials could
bring such a follow-up claim to an appellate court that granted them qualified immunity only.
Camreta v. Greene, 131 S.Ct. 2020 (U.S. Sup. Ct. 2011). See the discussion of this ruling in the
update above for p. 406.
Page 479: Nominal Damages under IDEA Not Available; Deference to Magnet School
Decision Denying Admission of Special Needs Student.
Relying on its Blanchard ruling discussed on this page, the U.S. Court of Appeals for the Ninth
Circuit has ruled that nominal damages, like compensatory damages, are not available under
IDEA. Nor can the parent seek relief under Section 1983 when the basis of the claim falls under
IDEA. The case involved an Oregon special needs student who was excluded from admission to a
magnet school. The appeals court also rejected the mother’s claims for compensatory damages
under Section 504 of the Rehabilitation Act and the Americans with Disabilities Act, noting no
39
congressional action precluding a magnet school from setting a minimum level of proficiency for
admissions. Here, the minimum of eight grade writing proficiency did not constitute
discrimination against the student whose writing proficiency was at the third grade level. C. O. v.
Portland Public Schools, 679 F.3d 1162 (9th Cir. 2012).
Page 480: Public School Personnel Cannot Be Liable Under Section 1983 for Injuries
Inflicted Upon a Student by Another Student Unless The Personnel Are Deliberately
Indifferent.
As noted on p. 475 in California School Law, personal injury cases are routinely handled in state
court under laws like the California Tort Claims Act. Occasionally litigation arises in federal
court under Section 1983 against school districts and personnel over injuries inflicted upon a
student by other students or outsiders who come on to the campus. The argument is that the
victims have a liberty right under the due process clause of the Fourteenth Amendment to be free
from harm inflicted by third parties. However, to avoid having personal injury cases flooding
federal courts, judges have construed this claim very narrowly. The U.S. Supreme Court has ruled
that when a state confines someone in a state facility on a 24-hour basis, then the state does have
a special relationship with the person and is required under the due process clause to protect the
person from injury inflicted by third parties. This is known as the “special relationship” exception.
However, courts have not applied the special relationship exception to public schools, given that
they are not custodial institutions like mental health facilities and prisons that deprive persons of
their liberty. The U.S. Court of Appeals for the Ninth Circuit recently refused to do in a case
involving sexual acts by two developmentally disabled students in a Washington State high
school bathroom. The mother of the female student, A.H., argued that one of her daughter’s
teachers had not followed a provision of the student’s IEP requiring the student to be supervised
at all times including while in bathrooms. The teacher believed that the student needed to
transition to using a bathroom on her own and allowed her to do so in the bathroom next to the
teacher’s classroom. Later, the teacher discovered that the male student had left the classroom
shortly after A.H. and found the pair in the bathroom. She escorted A.H. back to the classroom
and informed school officials and A.H.’s mother.
The Ninth Circuit also rejected the mother’s argument that the teacher had placed the student in
danger and was deliberately indifferent to her safety. This is known as the “state-created danger”
exception to the absence of a Fourteenth Amendment requirement to protect individuals from
third parties. Here, the judges noted that teacher had regularly sought to protect A.H. The teacher
provided feedback to school officials and to A.H.’s mother, and she had spoken with both A.H.
and the male student about hugging in the hallway. When she noticed that the male student had
left the classroom shortly after A.H., she rushed to the bathroom. Thus, the teacher had not acted
with deliberate indifference. At worst, she had committed a lapse of judgment when she allowed
A.H. to use the next door bathroom on her own. The matter was dismissed from federal court.
The mother was free to file a tort claim in state court. Patel v. Kent School District, 648 F.3d 965
(9th Cir. 2011).
