mod3-prep-eval

FINAL CUMULATIVE UPDATE FOR CALIFORNIA SCHOOL LAW, THIRD EDITION

January 2018

This final cumulative update for the third edition of California School Law encompasses

significant legal developments since the book was published in September 2013. 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.

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.

CHAPTER 1

LAW AND THE CALIFORNIA SCHOOLING SYSTEM

Page 8: Application of the Americans with Disabilities Act to Person in Wheelchair at

Football Games.

As noted in Table 1-1 on this page, the federal Americans with Disabilities Act (ADA) accords

persons with disabilities meaningful access to programs and facilities at most businesses in the

country. A good illustration of how ADA applies to persons outside the employment context

involves a federal lawsuit brought by a disabled person in a wheelchair who claimed that the

failure of the Lindsay Unified School District in the Visalia-Porterville metropolitan area to

modify its bleachers to accommodate wheelchairs denied him meaningful access to view football

games. The high school bleachers at this small school district were constructed in 1971 and are

not wheelchair accessible. But the district allows spectators in wheelchairs at several locations on

the sides of the field including the end zone at the east side near a concession stand. The plaintiff-

appellant argued that these locations are not the same as having access to the bleachers where his

view of the field won’t be obstructed by persons walking in front of him and by standing players

and coaches and in some locations by a fence. Under ADA Title II regulations, public facilities

constructed prior to January 26, 1992, need not to be made accessible and usable by persons with

disabilities but the public entity must make its programs readily accessibility. Here, the U.S.

Court of Appeals for the Ninth Circuit noted that the school district “offers many different

locations from which spectators who use wheelchairs are able to view football games, and it is

undisputed that such spectators enjoy unobstructed views from at least three of these locations.”

Thus the district is in compliance with ADA. Daubert v. Lindsay Unified School District, 760

F.3d 982 (9th Cir. 2014).

Page 9: Stocking Restrooms with Feminine Hygiene Products.

Public schools maintaining any combination of classes from grade six to twelve meeting the 40

percent student poverty threshold are now required to stock at least half of the restrooms with

feminine hygiene products. No charge is to be imposed for any menstrual products including, but

not limited to, tampons and sanitary napkins for use in connection with the menstrual cycle.

(Educ. Code § 35292.6)

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Page 20: County Community Schools. Provisions of the Education Code relating to students who may be involuntarily enrolled in a

county community school were amended in 2014 to (1) exclude homeless children, (2) add

conditions to referrals made on the recommendation of a school attendance review board, and (3)

limit types of juvenile offender referrals. With regard to school attendance review board

recommended referrals, the thrust of the legislation is to have both the school district and the

county board determine the extent to which the county community school is able to meet the

needs of referred students. Referrals are not to be made initially unless it is determined that the

county community school has sufficient space, can meet the needs of the student, and the

parent/responsible adult/guardian has not objected to the referral because of factors such as

safety, geographic distance, lack of transportation, and concern about meeting the student’s

needs. The student has the right to return to the student’s previous school or another appropriate

school within the district at the end of the semester following the semester when the acts leading

to referral occurred. The right to return continues until the end of the student’s eighteenth

birthday except for students with special needs. The right to return in this instance ends when the

student turns twenty-two. The statute then addresses conditions for county community school

enrollment of students on probation with or without the supervision of a probation officer and

consistent with the order of a juvenile court. All of these changes are quite detailed and should be

reviewed directly. See Education Code Sections 1981 and 1983.

Pages 29-30: Changes to the Interdistrict School Transfer Program.

Sections 48300-48317 of the Education Code relating to the interdistrict school transfer program

were revised in 2017 to spell out in more detail the components of the program. Chief among

them is that on or before July 1, 2018, a school district opting to become a district of choice must

register with both the Superintendent of Public Instruction and the county board of education

where the district is located. Starting the following school year, a school district of choice is not

to enroll students until the district has completed this registration. Also a district of choice is to

give first priority for attendance of siblings of children already attending schools or programs

within the district, second priority for attendance to students eligible for free or reduced-price

meals, and third priority for attendance of children of military personnel. These legislative

provisions remain in effect until July 1, 2023 and are repealed on January 1, 2014 unless the

legislature decides otherwise.

Pages 33-34: Expansion of Charter School Student Admission and Disciplinary

Requirements.

In 2017, Education Code Section 47605 (petitions for charter schools operating within a school

district) and Section 47605.6 (petitions for countywide charter schools) were amended to require

that if random drawing is necessary for student admission, preferences may be extended beyond

students currently attending the charter school and students who reside in the school district or

county for countywide charter schools to include, but not be limited to, siblings of students

admitted or attending the school and children of the charter school’s teachers, staff, and founders.

Each type of preference is to be approved by the chartering authority at a public hearing, be

consistent with federal and California law, and not result in limiting enrollment access for

students with disabilities; academically low-achieving students; English learners; neglected or

delinquent students; homeless students; students who are economically disadvantaged; foster

youth; or students based on nationality, race, ethnicity, or sexual orientation. Preferences also are

not to include mandatory parental involvement.

These statutes also have been amended to require a charter school petition to contain a

comprehensive description of procedures for disciplining or removing students that are consistent

with federal and California law. These include giving oral or written notice of charges for

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suspensions of fewer than 10 days and, if the student denies the charges, an explanation of the

evidence to support them and an opportunity for the student to present the student’s side of the

story. For suspensions longer than 10 days and expulsions, the charter school is to provide timely

written notice of the charges, an explanation of the student’s basic rights, and a due process

hearing by a neutral officer within a reasonable number of days. At the hearing the student has the

right to present testimony, evidence, and witnesses; to confront and cross-examine adverse

witnesses; and to be represented by legal counsel or an advocate. No student is to be involuntarily

removed for any reason unless the parent or guardian has been given written notice no less than

five schooldays before the effective date of the action.

There also are other changes made in the charter school petition process by this legislation. To

learn more, go to the State Department of Education website at www.cde.ca.gov and click on

Laws and Regulations.

Page 34: California Supreme Court Addresses Due Process Dimensions of County Board of

Education’s Role in Charter School Revocation.

As noted on this page, county boards of education can authorize charters for schools serving a

county-wide student population, oversee their operation, and revoke charters for noncompliance

with state law and the charter petition. Their role in this capacity is similar to school boards. In a

case involving Today’s Fresh Start charter school, the California Supreme Court addressed the

dimensions of due process of law when a county board of education revokes a charter it has

granted.

Today's Fresh Start argued that in revoking its charter, the Los Angeles County Board of

Education violated due process of law because the county board operates schools in the county

and Today’s Fresh Start competes for students and funding. Thus, the county board could not be

impartial. The California Supreme Court unanimously rejected the argument, noting that the few

specialized schools the county board operates serve mostly high school students and Today's

Fresh Start is a kindergarten through eighth grade school. Furthermore, county board members

receive no financial benefit from revoking charters. The high court also noted that under

Education Code Section 47605.6, county boards can only approve charter schools like Today's

Fresh Start that provide instructional services not provided by county offices of education.

Today's Fresh Start also maintained that the role of the Los Angeles County Office of Education

and its governing board in accusatory, investigative, and adjudicatory functions in the revocation

context undermines due process of law. The justices pointed out that the legislature has given

both school districts and county offices of education these multiple tasks, something neither

uncommon nor unconstitutional. To prove a denial of due process, there must be evidence of

actual bias. Here there was none. The county superintendent fulfilled her statutory responsibilities

of investigating concerns about the operation of the charter school, and the general counsel of the

county office and board fulfilled her responsibilities in advising the county board of its duties

without being an advocate or adjudicator. Today’s Fresh Start, Inc. v. Los Angeles County Office

of Education, 159 Cal. Rptr.3d 358 (Cal. 2013).

What likely was a factor in triggering this lawsuit was that the Los Angeles Board of Education

voted four to three to revoke the charter and upon appeal, the State Board of Education split

evenly. The lesson learned is that care must be taken by charter school authorizers to make sure

that the charter school investigation is carefully done and that the charter school is given ample

opportunity to present its side of the story. If this is done, then the chances of a charter school's

prevailing in a due process challenge revocation are remote.

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Page 35: In Revoking a Charter, the Authorizer Must Establish Substantial Evidence to

Overcome The Extra Weight Given to Charter School Academic Performance.

As noted on this page, the charter school authorizer must consider student achievement of all

student groups served by a charter school as the most importance factor in a revocation decision.

But even if student achievement is high, this does not negate a revocation decision if one or more

of the other factors set forth in Education Code Section 47607(c) for revoking a charter are

established. Operating three charter schools in Oakland, the American Indian Model Schools

(AIMS) challenged the Oakland Board of Education’s revocation of its charter after an

independent audit uncovered significant fiscal mismanagement. The Alameda County Board of

Education later affirmed the district’s decision. At the time, the AIMS schools were among the

top performing charter schools in the state. One of its schools received the Title I California

Distinguished School Award from the California Department of Education for closing the

achievement gap between rich and poor students. AIMS strongly opposed the action, contending

that closure should not take place pending resolution of the appeal process. Both the trial court

and court of appeals agreed, noting that there must be evidence that the charter authorizer

considered student achievement as the most important factor in deciding whether to revoke a

charter. Here that was not evident. Thus a preliminary injunction was warranted preventing

closure. American Indian Model Schools v. Oakland Unified School District, 173 Cal. Rptr.3d

544 (Cal. App. 1 Dist. 2014).

Page 37: California Supreme Court Clarifies How Facilities Are to be Provided to Charter

Schools. In 2015 the California Supreme Court superseded the appellate court decision noted on this page

regarding the Los Angeles Unified School District's provision of facilities to charter schools

operating in the district. In a detailed unanimous opinion, the high court discussed the meaning of

State Board of Education (SBE) regulations regarding how available facilities for charter schools

are to be determined under Education Code Section 47614. It concluded that a school district

must follow a three-step process in responding to a charter school's request for classroom space.

First, the district must identify a comparison group of schools with similar grade levels as set

forth in Section 11969.3 (a) of the SBE regulations. Second, the district must count the number of

classrooms provided to noncharter K-12 students in the comparison group whether the classrooms

are staffed by teachers or not. And third, the district must use the resulting number of classrooms

as the denominator in the average daily attendance (ADA)/classroom ratio for

allocating classrooms to charter schools based on their projected ADA. California Charter

Schools Association v. Los Angeles Unified School District, 185 Cal. Rptr.3d 556 (Cal. 2015).

Page 38: How Near to Where a Charter School Wants to Locate Must District-Provided

Facilities Be?

A California court of appeal faced this question in 2015 when the Westchester Secondary Charter

School challenged a decision by the Los Angeles Unified School District to provide a facility that

was near, but not in, the Westchester neighborhood where the charter school wanted to be. The

district facility was Crenshaw High School located 2.53 miles from Westchester and between 6.5

and 7.4 miles from the charter school’s first and second choice campuses in Westchester. The

appellate judges noted that the term “near” is not defined in either statutory or administrative law.

Rather, it is a flexible term. Furthermore, while the charter school requested a facility in

Westchester, it said it would consider other campuses reasonably close to Westchester. The court

also rejected the charter school’s claim that the district could accommodate it at its second

preferred site in Westchester by eliminating set-aside space for expansion of other programs at

that site as well as by giving it space at a closed former elementary school being used for adult

education. The district’s reasons for doing so were justifiable. Westchester Secondary Charter

School v. Los Angeles Unified School District, 188 Cal. Rptr.3d 792 (Cal. App. 2 Dist. 2015).

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CHAPTER 2

ATTENDANCE, INSTRUCTION, AND ASSESSMENT

Page 49: Additions to Compulsory Attendance Law.

A student whose parent or guardian lives outside the school district but who is employed and

lives with the student at the student’s place of residence for a minimum of three days during the

school week is to be admitted to public schools of the district on a full-time basis. (Educ. Code §

48204 (a)(7)).

Also, attendance law now requires that before a school district can conduct an investigation to

determine whether a student meets the residency requirements for school attendance, the school

district must have an investigatory policy adopted at a public meeting of the governing board.

(Educ. Code § 48204.2). Among other things, the investigatory policy is to identify the

circumstances for conducting an investigation, describe the methods used, prohibit surreptitious

photographing or video-recording of students being investigated, and provide an appeal process.

Pages 50-51: Charter Schools Must Now Accommodate Both Foster and Homeless Students.

In Addition, Many Foster Students Rights Now Extended to Homeless Students.

The term “local education agency” in the context of accommodating both foster and homeless

students has now been extended to charter schools (Educ. Code § 48859). In addition, new

legislation extends many of the rights of foster children to those who are homeless. Among them

is the right of homeless students to continue education in the school of origin through the duration

of homelessness. If a high school homeless student’s status changes so the student is no longer

homeless before the end of the school year, the student is to be allowed to continue through

graduation. If a homeless student in kindergarten or any of grades 1-8 is no longer homeless, the

student is to be allowed to continue education in the school of origin through the duration of the

academic year. If a homeless student is transitioning between grade levels, the student is to

continue in the same attendance area of the school of origin. If the homeless student is

transitioning to a middle or high school and the school designated for matriculation is in another

school district, the local education agency is to allow the homeless student to continue in the

school designated for matriculation in that school district. The new school is to enroll the

homeless student even if the student has outstanding fees, fines, textbooks, or other items or

funding due to the school last attended. The same is true if the student is unable to produce

clothing or records normally required for enrollment such as previous academic records, medical

records including immunization history, and proof of residency.

Other rights of foster children now extended to homeless students include the right to receive

partial credits for courses if they switch schools midyear, the right to meet only state graduation

requirements if they transfer high schools after their second year unless the new district

determines the student is reasonably able to complete the graduation requirements in time to

graduate by the end of the student’s fourth year, and the requirement that districts notify the

district-appointed liaison before expelling a homeless student. If the homeless student is in special

education, the liaison must be invited to the expulsion hearing. (Educ. Code §§ 48915.5, 48852.7,

48918.1, 51225.1–51225.2).

Page 51: More on Student Records Pertaining to Foster and Homeless Children.

See updates for Chapter 10.

Page 51: Education Code Section 48215 Deleted.

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As noted on this page, this provision denying undocumented immigrants various public services

including education was declared null and void in 1995 but remained in the Education Code. In

2014 Governor Jerry Brown signed a bill deleting it.

Page 51: Immunization of Students.

While Education Code Section 48216 as stated on this page gives governing boards the authority

to deny admission to students who have not been immunized, a provision of the Health and

Safety Code has provided an exemption for medical reasons or because parents believe

immunization is contrary to personal beliefs. Growing concern about health and safety in public

schools resulted in a legislative change to the Health and Safety Code (sections 120325, 120335,

120338, 120370, 120375). The same is true of Education Code Section 49452.8 that pertains to

oral health assessment. For more about the changes in this section, go to the State Department of

Education website at www.cde.ca.gov and click on Laws and Regulations.

On or after July 2016, absent medical reasons, immunization for infectious diseases listed in the

code such as diphtheria, hepatitis B, measles, mumps, whooping cough, and chickenpox is

required for students enrolled for the first time at a private or public elementary or secondary

school, child care center, day nursery, nursery school, family day care home, or development

center or being admitted or advancing to grade 7. If there is good cause to believe a student has

been exposed to one of the listed diseases and there is no documented proof of immunization, the

student may be temporarily excluded from school until the local health officer is satisfied that the

student is not at risk of developing or transmitting the disease.

The changes are not to prohibit a student who qualifies for an individualized education program

from accessing special education and related services as stated in the student’s individualized

educational plan (IEP). The changes also do not apply to home-based private schooling or an

independent study program that does not encompass classroom-based instruction.

A student who prior to January 1, 2016 has a letter or affidavit on file at any of the above

institutions stating beliefs opposed to immunization is allowed attendance until the student enrolls

in the next grade span. A grade span means birth to preschool, kindergarten and grades 1-6

including transitional kindergarten, and grades 7-12. While the exemption from existing specified

immunization requirements based on personal beliefs has been eliminated, an exemption based on

both medical reasons and personal beliefs is allowed from future immunization requirements

deemed appropriate by the State Department of Public Health.

A motion filed by a group of parents in federal court for a preliminary injunction to halt

enforcement of the immunization changes as violating their federal rights on a number of grounds

was rejected. Whitlow v. California, 203 F.Supp.3d 1079 (S.D. Cal., 2016). The court noted that

“There is no question that society has a compelling interest in fighting the spread of contagious

diseases through mandatory vaccination of school-aged children. All courts, state and federal,

have so held either explicitly or implicitly for over a century.”

Page 57: Assuring Safety: Students Not to be Left Unattended on School Buses.

Provisions of the Education Code pertaining to school buses require that superintendents of

county schools, superintendents of school districts, leaders of charter schools, and the owners or

operators of private schools that provide transportation to or from school or school activity

develop a safety plan to assure student safety (Educ. Code §§ 39831.3, 39860). The plan now is

to include procedures ensuring that a student is not left unattended on a school bus. The same is

true for any contract negotiated for student transportation. Drivers who fail to comply with this

requirement are to have their certificate revoked by the Department of Motor Vehicles. The plan

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also is to include procedures and standards for designating an adult chaperone other than the

driver to accompany students on a school student activity bus. In addition, the California Motor

Vehicles Department is to develop regulations before the 2018-2019 school year requiring that

each school bus, school student activity bus without one or more adult chaperones, youth bus, and

child care motor vehicle for more than eight persons including the driver is to be equipped with a

child safety alert system at the interior of the bus so that the driver can be sure that students are

not left unattended (Calif. Vehicle Code § 28160).

Page 57: Removing the Term “Redskins”

Beginning January 1, 2017, public schools are prohibited from using the term “Redskins” as a

school or athletic team name, mascot, or nickname. An exception is allowed for uniforms or other

materials bearing that name which were purchased before January 1, 2017 if (1) the school selects

a new school or athletic team name, mascot, or nickname; (2) the school refrains from purchasing

or selling uniforms to students or employees that bear the “Redskins” name unless necessary to

replace damaged uniforms up to 20 percent of the total number of uniforms used by a team or

band at the school during the 2016-2017 school year and purchased prior to January 1, 2019; (3)

the school refrains from purchasing or acquiring for distribution to students or employees any

yearbook, newspaper, program, or similar material that includes the name in its logo or cover title;

and (4) the school does not purchase or construct a marquee, sign, or fixture that includes the

“Redskins” name, and for facilities that already bear the name, the name shall be removed during

maintenance. (Educ. Code §§ 221.2-221.3).

Pages 57-58: Civil Center Act Correction and Addition.

Education Code Section 38134 of the Civil Center Act that requires a school governing board to

permit nonprofit organizations such the Girl Scouts, Boy Scouts, parent-teacher associations, and

the like that promote youth and school activities to use its facilities no longer conditions doing so

on no alternative facilities being available. This requirement was removed in 2012. In 2016, the

legislature added to the list of nonprofit organizations having access to school facilities a

recreational youth sports league that charges participants an average fee of no more than $60 per

month.

Page 59: Can the Theft of a Cell Phone by a Student in Locker Room Be Reduced from a

Felony to a Misdemeanor Following Enactment of Proposition 47 Known as the Safe

Neighborhood and Schools Act?

In 2014 Penal Code Section 459.5 was added by Proposition 47 making shoplifting not exceeding

$950 in a commercial establishment a misdemeanor rather than a felony. A high school student in

Santa Clarita admitted to a school resource deputy that he had stolen a cell phone from another

student’s locker in the high school locker room. He was charged with a burglary offense as a

felony and placed on probation. Following the enactment of Proposition 47, the student sought to

reduce his felony offense to misdemeanor shoplifting under Section 459.5, arguing that the school

falls into the “commercial establishment” category. The California appellate court agreed with the

juvenile court that, while a cafeteria or school bookstore might fall into this category, a school

locker room is not a commercial establishment in the sense of buying and selling of goods or

services. Thus, the cell phone theft was felony and could not be reduced to a misdemeanor. In re

J.L., 195 Cal. Rptr.3d 482 (Cal. App. 2 Dist. 2015).

Page 60: Changes in the Gun-Free School Zone Act (See Table 2.1).

This law has been amended to permit persons holding a valid license to carry a concealed firearm

but not ammunition in an area that is in an area within 1000 feet of, but not on, the grounds of a

public or private school. Only active and retired law enforcement officers can bring concealed

firearms onto school grounds. An unloaded firearm and ammunition or reloaded ammunition can

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be on school grounds if kept in a motor vehicle in a locked container or in the locked trunk of the

vehicle. (Penal Code §§ 626.9 and 30310).

Page 61: Enactment of Legislation to Promote Student Healthy Eating and Physical Activity

After School.

In recent years, legislation has been enacted to promote student health and safety on and off

campus in a number of ways. These include the 21st Century High School After School Safety

and Enrichment for Teens (ASSETs) program and the After School Education and Safety

Program (ASES). The former can be found in Education Code Sections 8420-8428 and provides

grants through the California Department of Education (CDE) that partner traditional public and

charter schools with communities to provide academic support and constructive alternatives for

high school students and that support college and career readiness. The latter can be found in

Education Code Sections 8482-8484.6 and provides grants through CDE for educational and

literacy support and enrichment encompassing technical education and physical fitness, among

others, to kindergarten through ninth grade students.

In 2014, the Distinguished After School Health (DASH) Recognition Program focusing on

addressing childhood obesity was enacted. This law requires CDE to develop a process for

identifying high quality after-school programs under ASSETs, ASES, and similar initiatives that

focus on healthy eating and physical activity. Schools will have the option of creating a certificate

and supporting document demonstrating how the program meets criteria set forth in the statute.

CDE will post on its website a list of recognized schools meeting the criteria. Details of the

DASH program are set forth in Education Code Sections 8490-8490.7.

Page 61: Student Applications for Free or Reduced Price Meals.

In the interest of improving access to free or reduced price meals by children from refugee and

immigrant households, Education Code Section 49557 has been amended to require that in

addition to paper applications, school district governing boards and county superintendents of

schools are to make applications available online subject to specified requirements including a

link to the website on which translated applications are posted by the U.S. Department of

Agriculture with instructions on how to submit it. The instructions are to be clear for families that

are homeless or migrants.

Page 61: Enactment of the Child Hunger Prevention and Fair Treatment Act of 2017.

Enacted in 2017, Education Code Section 49557.5 requires public schools, school districts,

county offices of education, and charter schools serving free or reduced-price meals during the

school day under the federal National School Lunch Program or the federal School Breakfast

Program to ensure that students whose parent or guardian has unpaid meal fees is not shamed,

treated differently, or served a meal that differs from those served other students. Nor shall

disciplinary action taken against a student result in denial or delay of a nutritionally adequate

meal. For related requirements, see the section by going to www.cde.ca.gov and clicking on Laws

and Regulations under the “Resources” heading.

Page 61: Changes in Anti-Smoking Laws.

Smoking is now prohibited for persons under 21 in this state. Education Code Section 48901 that

prohibits smoking or use of a tobacco product on public school grounds, while attending school-

sponsored activities, or while under the supervision of school employees now incorporates the use

of an electronic smoking device that creates an aerosol or vapor and any oral smoking device for

the purpose of circumventing the prohibition of smoking. In addition, any school district, charter

school, and county office of education that receives a grant from the State Department of

Education for anti-tobacco education programs is to address the consequences of tobacco use,

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reasons why adolescents use tobacco, peer norms and social influences that promote tobacco use,

and skills for resisting social pressure promoting tobacco use. (Health and Safety Code § 104420).

Page 62: Changes to Automatic External Defibrillator Laws.

A provision has been added to the Education Code that permits public schools to seek non-state

funds to acquire and maintain an automatic external defibrillator (AED). The provision also

specifies that compliance with Health and Safety Code Section 1714.21 regarding AED use/non-

use insulates the school employee and the school or district from civil damages resulting from

any act or omission in rendering emergency care or treatment, except in instances of gross

negligence or willful or wanton misconduct resulting in personal injury or wrongful death (Educ.

Code § 49417).

In addition, Health and Safety Code Section 1797.196 now requires principals to ensure that

when an AED is placed in a public or private K-12 school, administrators and staff receive

information describing sudden cardiac arrest and the school’s emergency response plan. The

principal also is to ensure that all administrators and staff understand proper use of the AED.

Principals also are to ensure that instructions on how to use an AED are posted in 14-point type

next to every AED and that at least annually school employees are notified as to the location of

all AEDs on the campus. The provision on designating trained employees to respond to an

emergency that may necessitate use of an AED has been removed since all employees now must

know how to do this.

Page 62: New Laws Enhancing Student Protection.

In 2016, the legislature added Section 33133.5 to the Education Code requiring the

Superintendent of Public Instruction to develop a poster notifying children of the appropriate

telephone number to report abuse or neglect and to post downloadable version of the poster on the

California Department of Education’s website on or before July 1, 2017. Among specific

elements, the poster is to include dialing “911” in case of an emergency and to be produced in

five languages. School districts, charter schools, and private schools are encouraged to display

appropriate versions of the poster in areas where students congregate.

Education Code Section 215 has been added requiring school districts, county offices of

education, state special schools, and charter schools serving students in grades 7-12 to adopt a

policy on student suicide prevention in collaboration with school and community stakeholders,

school-employed mental health professionals, and suicide prevention experts. The policy is to

specifically address the needs of high-risk group as spelled out in this section and be developed

prior to the 2017-2018 school year.

California Health and Safety Code Section 104495 has been amended to prohibit persons in

playground and sandbox areas including those located on public or private school grounds where

a youth sports event takes place from using a tobacco product within 250 feet of the event.

Failure to comply will result in a $250 fine for each violation.

Page 62: School Counselor Not Immune from Liability for Allegedly Giving Suspected

Child Abuse Report to Students’ Father.

See updates for Chapter 12.

Page 62: Restrictions on Assigning Students to Course Periods without Educational Content.

In response to a lawsuit focused on high school students being assigned to content-absent courses

because of lack of funds or teachers, Sections 51228.1 and 51228.2 have been added to the

Education Code specifying that personnel in school districts with any 9-12 grades are prohibited

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from assigning students enrolled in one of these grades to a course period without educational

content for more than one week in a semester. An exception is if the parent or guardian of a

student who has not reached the age of majority gives written consent and the school official

believes the student will benefit from such an assignment. A school’s having insufficient course

offerings is irrelevant.

The term “course period without educational content” encompasses (1) sending a student home or

releasing the student from campus before the conclusion of the school day; (2) assigning a student

to a service, instructional work experience, or an otherwise named course in which the student is

to assist a certificated employee but not complete curricular assignments during that period and

where the ratio of certificated employees to students assigned to the course for curricular

purposes is less than one to one; and (3) assigning the student to no course during the relevant

course period. This restriction does not affect other curricular programs such as community

college dual enrollment, evening high school, independent study, work-study courses or work

experience education. It also does not apply to students enrolled in alternative schools,

community day schools, continuation schools, and opportunity schools.

A similar restriction applies to assigning a high school student to a course the student has already

completed and received a grade sufficient to satisfy admission requirements to a California public

postsecondary institution and the school’s graduation requirements. An exception is if the parent

or guardian consents in writing for students who have not reached the age of majority and the

school official believes that student will benefit from being assigned to the course period.

Another exception is if the student needs to take the course more than once because of curricular

changes and can benefit from doing so. And as above, this provision does not apply to dual

enrollment programs, evening high school, alternative schools, and so on.

The statutes set forth a process for complaint filing and also require the superintendent for public

instruction to set forth regulations to be adopted by the state board of education for implementing

this law.

Page 62: Lawsuit Brought by Hindu Organization Challenging Portrayal of Hindu Religion

in State Board of Education’s History-Social Science Content Standards Partially Dismissed.

California Parents for the Equalization of Educational Materials (CAPEEM) that seeks to

promote an accurate portrayal of the Hindu religion filed a lawsuit against several members of the

State Board of Education (SBE) and the California Department of Education (CDE) asserting that

the history-social science sixth grade standards and framework are patently anti-Hindu. Among

other claims, CAPEEM alleged the standards do not describe Hinduism as virtuous and do not

mention Hinduism’s divine origins and central figures. The SBE sought to dismiss all the claims.

The federal district court ruled that the standards do not intrude on the liberty rights of parents to

control their children’s upbringing under the Fourteenth Amendment due process clause, do not

violate the right of parents to freely exercise their religious beliefs under the free exercise clause

of the First Amendment, and do not discriminate against Hinduism in violation of the Fourteenth

Amendment equal protection clause. However, the court denied the state’s motion to dismiss the

claim that the standards and framework constitute a violation of the First Amendment

establishment clause. The judge cited as an illustration the comments of a sixth grade student that

when her class was divided into castes, she felt discriminated against based on her religion

because she said other students and the teacher considered Hinduism as cruel, primitive, and

unjust. The judge noted that the student formed this impression from the framework’s statement

to teachers to make clear that the caste system was both a social/cultural structure as well as a

religious belief. Based on this assertion, the judge denied the SBE’s motion to dismiss the

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establishment clause claim. California Parents for the Equalization of Educational Materials v.

Torlakson, 2017 WL 2986222 (F.Supp.3d N.D. Cal., 2017)

Page 65: Native American Studies.

Added in 2017, Education Code Section 51226.9 requires the Instructional Quality Commission

to develop on or before December 31, 2021 and the State Board of Education to approve on or

before March 31, 2022 a model curriculum in Native American studies. The model curriculum is

to be developed with the assistance of Native American tribes in California and to serve as a

guide for school districts and charter schools to adapt related courses to reflect student

demographics in their communities. Following adoption of the model curriculum, each school

district and charter school maintaining any grades of 9 to 12 that does not offer a standards-based

Native American studies curriculum is encouraged to offer such a course of study as a social

sciences or English language arts elective. The course is to be made available in at least one year

of a student’s enrollment. An outline of the course is to be submitted as an A-G course for

admission to the University of California and California State University.

Pages 69-70: Proposition 227 Curtailing Bilingual Education Repealed. In the November 2016 election a majority of voters successfully endorsed a 2014 legislature

measure known as the California Education for a Global Economy Initiative repealing

Proposition 227 that largely replaced bilingual education with English immersion. The changes to

Education Code Section 300 and following sections go into effect in July 2017. Under the new

measure, parents have the opportunity to choose a language acquisition plan that best suits their

child’s needs. School districts and county officers of education are to provide English learners

with a structured English immersion program so that these students have access to the core

academic content standards and become proficient in English. Districts and county offices also

are encouraged to provide to the extent possible opportunities for native English speakers to

become proficient in one or more other languages. The right of parents in the former English

immersion statute to sue for enforcement and be awarded damages and attorneys’ fees has been

deleted.

In a related manner, Section 313.2 of the Education Code that requires the Department of

Education to ascertain and disseminate information on the number of students in each traditional

public and charter school who are, or are at risk of, becoming long-term English learners has been

amended to include the manner in which English development programs will meet student needs

and age-appropriate academic standards. Schools can comply with this provision by sending this

information to parents and guardians if the definitions of English learners and long-term English

learners are broader than those in state law.

Page 70: Provisions Pertaining to Gifted and Talented Students (GATE) Repealed.

As noted in the next chapter updates, the enactment of the Local Control Funding Formula (LCFF)

ended several categorical funding programs, channeling the money into general funds provided to

school districts. GATE was one of the categorical programs repealed.

Page 72: Change in Credentialing System.

As of 2017, the multi-subject teaching credential may include a baccalaureate degree in

professional education (Educ. Code § 44225 (a)(1)).

Pages 82-83: Enactment of New Internet Privacy Rights Laws.

Provisions have been added to the California Business and Professions Code protecting minors

from commercial marketing by Internet providers (Bus. & Prof. Code §§ 22580-22582). Federal

law (the Children’s Online Privacy Protection Act (COPPA)) already requires operators of

12

commercial Internet sites or online services to provide notice of what personal information is

collected and used, and gives parents the option of refusing to permit collection of additional data

for children under age thirteen. Entitled the Privacy Rights for California Minors in the Digital

World, the new California law expands this protection to minors under age eighteen by

prohibiting operators of websites, online services, online applications, or mobile applications

from marketing or advertising certain products or services to them. The restrictions apply as well

to advertisers. The long list of restrictions includes alcoholic beverages, firearms, aerosol paint

containers capable of defacing property, tobacco, drug paraphernalia, electronic cigarettes, and

obscene matter. Disclosure of personal information about minors to third parties is prohibited.

Operators also must permit minors who are registered users to remove or request to be removed

content or information posted by them. This does not apply to information posted by third parties.

Another law added to the California Business and Professionals Code is the Student Online

Personal Information Protection Act (§§ 22584-22585). Effective January 1, 2016, this detailed

law prohibits operators of Internet websites, online services, online applications, or mobile

applications used primarily for K-12 school purposes from using student information to target

advertising to students, parents, or guardians; using covered information to amass student profiles;

or selling student information. Disclosure of covered information is also prohibited unless in

furtherance of a K-12 purpose germane to the site, service, or application under certain conditions

set forth in the statute. Operators are to establish security measures and are required to delete

student information if requested by the school or district. Operators are allowed to disclose

information if required by federal or state law or if for legitimate research purposes. The law also

allows the use of de-identified student information for certain purposes. Given both its

importance and complexity, the statute should be viewed in its entirety.

A provision has been added to the Education Code requiring school districts, county offices of

education, and charter schools to inform parents of programs they propose to use to monitor their

students’ social media activities and to collect and store the data and postings (Educ. Code §

49073.6). Many schools seek to gather this information to help prevent bullying, sexting, school

violence, and student suicide. An opportunity for public comment must be provided at a regularly

scheduled board meeting before such a program is adopted. Presumably to deter litigation over

invasion of personal privacy, the statute gives students and their parents the right to examine

information collected about them from social media and to make corrections or deletions. To

protect student privacy over the long term, all such information must be destroyed within one

year after the student turns eighteen or is no longer enrolled. This legislation applies as well to

third parties hired by the governing board to undertake this task.

Another provision added to the Education Code protects student privacy rights when schools

enter into a contract with third parties to provide services including those that are cloud-based for

digital storage, management, and retrieval of student records (Educ. Code § 49073.1). The law

does not apply to existing contracts in effect before January 1, 2015 when the new law went into

effect until their expiration, amendment, or renewal.

As digital learning become increasingly incorporated in school instructional programs, more

federal and state laws protecting parent, student, and teacher privacy are likely to be enacted.

Page 86: NCLB Replaced by Every Student Succeeds Act (ESSA).

The No Child Left Behind Act discussed on these pages and referred to elsewhere in the book has

now been replaced by the much less controlling Every Student Succeeds Act (ESSA). The

revision eliminates the need for waivers from requirements such as assuring adequate yearly

progress toward all students becoming proficient on math and reading tests or face loss of federal

13

funding. The annual yearly progress requirement has been eliminated along with escalating

consequences for schools that don’t measure up. ESSA still requires that students be tested in

reading and math from third to eighth grade and at least once in high school. States are to

intervene to assist low performing schools including those with underperforming subgroups. And

school evaluation is to include at least one other measure beyond student test scores such as

graduation rates or English proficiency for nonnative speakers. Given California’s changes in

student assessment and financial accountability as described below and in the updates for Chapter

3, the state is well along in complying with ESSA’s provisions.

Pages 87-95: Replacement of the Standardized Testing and Reporting (STAR) System and

Ending of CAHSEE.

In accord with the movement to implement common core curriculum content standards, Senate

Bill 484 signed by the Governor Jerry Brown in October 2013 embraces the development of

academically rigorous content standards in all major subject areas and sets forth a new assessment

system. The purpose is to model and promote high-quality teaching and learning activities across

the curriculum so that students can acquire the knowledge, skills, and processes needed for

success in the information-based global economy of the 21st century (Educ. Code § 60602.5).

The student assessment system is designed to hold schools and districts accountable for the

achievement of all students in meeting the standards. Identified as the Measurement of Academic

Performance and Progress (MAPP) in SB 484, the new system has been renamed the California

Assessment of Student Performance and Progress (CAASPP). It replaces most of STAR (Educ.

Code § 60640). The new system is based on the work of a multistate organization called the

Smarter Balanced Assessment Consortium that is developing assessments aligned with the

common core state curriculum standards. In 2017, the California High School Exit Exam

(CAHSEE) was ended, given its lack of linkage to the common core.

The current assessment system reports student academic performance in relation to state

academically rigorous content and performance standards and in terms of college and career

readiness skills. When appropriate, the performance reports include a measure of growth

describing the student's status in relation to past performance. As in the past, students with special

needs are to be give appropriate accommodations in CAASPP testing requirements and, if unable

to participate in the testing, given an alternate assessment (Educ. Code § 60640 (k)).

CAASPP encompasses a summative assessment in English language arts and mathematics for

grades three through eight and grade eleven that measures content standards adopted by the State

Board of Education (SBE); grade-level science assessments in grades five, eight, and ten until a

successor assessment is implemented; the California Alternate Performance Assessment (CAPA)

in English language arts and mathematics in grades two to eleven and in science in grades five,

eight, and ten until a successor instrument is implemented; a voluntary early assessment program

for grade eleven students in English language arts and mathematics; and a primary language

assessment program aligned to English language arts standards for students enrolled in dual

language immersion programs. By March 1, 2016, the Superintendent of Public Instruction (SPI)

was to submit to the State Board of Education (SBE) recommendations for expanding CAASPP

to include additional assessments in such subjects as history-social science, technology, and

visual and performing arts.

CAASPP assessment in English language arts and mathematics was field-tested in the 2013-2014

school year. There was no assessment in these areas pursuant to the old California Standards Text

because the common core curriculum together with CAASPP transforms databases and disrupts

14

trend analysis. Adding to the transition was the adoption of the Local Control Funding Formula

(LCFF), highlights of which are set forth in the update for Chapter 3 below.

The adoption of the new assessment system affects the calculation of school and district

Academic Performance Index (API) scores.

In addition to the above, Senate Bill 484 addressed a number of matters relating to student

assessment and school accountability. Several of the more significant include:

 Based on recommendations from the SPI, the SBE is to set forth performance standards on the CAASPP summative tests. Once adopted, these performance standards are to be

reviewed by the state board every five years (Educ. Code § 60648).

 The CDE is to determine how school districts are progressing toward implementation of a technology-enable assessment system and the extent to which assessments aligned to the

common core standards in English language arts and mathematics can be fully

implemented (Educ. Code § 60648.5).

 A paper and pencil version of any computer-based CAASPP assessment is to be made available for students who are unable to access the computer-based version of the

assessment for a maximum of three years after a new operational test is first administered

(Educ. Code § 60640 (e)).

 With approval of the SBE, the CDE is required to develop a three-year plan of obtaining independent technical advice and consultation regarding ways of improving CAASPP.

Areas to examine include studies focused on validity, alignment, testing fairness and

reliability, reporting procedures, and special student populations such as English learners

and students with special needs (Educ. Code §60649).

For the latest information about CAASPP, go to www.caaspp.org.

CHAPTER 3

EQUITY, ADEQUACY, AND SCHOOL FINANCE

Pages 115-118, 121-123, 130: Local Control Funding Formula (LCFF) Replaces Revenue

Limit Funding and Most State Categorical Grants. Accompanying Local Control and

Accountability Plan (LCAP) Has Significant Implications for School Administrators.

As noted on page 130, when the third edition of California School Law was being written, the

legislature and governor were preparing legislation to replace revenue limits and most categorical

funding with a weighted student formula funding system that includes a variance in per-student

funding depending upon student needs. Known as the Local Control Funding Formula (LCFF),

the legislation went into effect in the 2013-2014 school year. Over an eight-year period, the

amount of funding gradually will increase for full implementation of the LCFF.

Basically, the LCFF provides a base grant for school districts and charter schools that varies by

grade level. There is an adjustment of 10.4 percent on the base grant for kindergarten through

grade three, provided that progress is made toward an average class size of no more than twenty-

four students unless the collective bargaining agreement provides otherwise. There is an

adjustment of 2.6 percent on the base grant amount for grades nine through twelve. The LCFF

provides a supplemental grant equal to 20 percent of the adjusted base grant for English learners,

low-income students, and foster youth. There is a concentrated grant equal to 50 percent of the

adjusted base grant for targeted students exceeding 55 percent of a local education agency’s

enrollment. There also is additional funding to assure that all districts are restored to their 2007-

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2008 state funding levels, adjusted for inflation, and that guarantees a minimum amount of state

aid. Home-to-school transportation and Targeted Instructional Improvement Grant funding are

add-ons to the LCFF. LCFF does not encompass state funding for programs like special education

and the After School Education and Safety program, some local funding like parcel taxes, and

federal dollars.

The LCFF also requires school districts, charter schools, and county offices of education to

develop, adopt, and annually update a three-year Local Control and Accountability Plan (LCAP)

using a template developed by the CDE. The LCAP is required to identify goals and measure

progress for student subgroups across multiple performance indicators. The School

Accountability Report Card (SARC) that provides parents and others with information about

school performance will be linked to LCAP. The State Board of Education (SBE) is required to

adopt and refine over time evaluation rubrics to assist both local education agencies and oversight

entities evaluate strengths, weaknesses, areas that require improvement, technical assistance

needs, and where interventions are warranted. A new entity called the California Collaborative

for Educational Excellence (CCEE) has been set up to assist struggling school districts in

improving student performance in compliance with their LCAP.

In effect, LCFF and LCAP place primary responsibility on school governing boards and

administrators to allocate resources in such a way that all students reach desired levels of

achievement and have the necessary skills and knowledge to go on to postsecondary education

and employment. As noted on p. 85, given the changing demographics of the California student

population, meeting their needs in many schools is challenging. With the limited success of

categorical funding and rigid forms of state-level accountability, it is not surprising that state

policymakers are deferring to the judgment of local school officials. Now more than ever, those

closest to the education scene have the discretion to tailor the educational process to meet the

needs of all their students.

For further information about LCFF and its accountability components, go to the CDE website at

www.cde.ca.gov/fg/aa/lc

Clearly, the adoption of common core standards, the new CAASPP assessment system, and the

LCFF for school funding likely will significantly affect future operation of public schools in

California.

Pages 124-125: More on Charter School Facility Grant Program.

Grant eligibility has now been expanded for charter schools under the 70 percent free or reduced-

price meals requirement. If the California School Finance Authority finds that funding remains

after allocations based on these criteria have been made, the Authority is to expand additional

charter school eligibility by reducing the 70 percent requirement 1 percent at a time but in no case

below 60 percent (Educ. Code § 47614.5 (c)). Charter schools receiving funding under this

program are now subject to audit under Education Code Section 41020.

Page 127: Helping Teachers with Housing Expenses.

As noted on this page, while California teacher salaries are among the highest in the country, the

cost of living in this state is very high. The Teacher Housing Act of 2016 allows a school district

to establish and implement programs helping school district employees find affordable rental

housing by leveraging nonprofit and fiscal resources to housing developers, promoting public and

private partnership, and fostering innovative financing opportunities (Health and Safety Code §

53570 and following sections).

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Page 130: Robles-Wong Lawsuit Challenging the California School Finance System

Rejected.

In 2016 a California court of appeal rejected two related lawsuits challenging the state’s current

school finance system as a violation of the state constitution. In arguing for an adequate school

finance system to assure a quality education for all schoolchildren, the appellants cited Section 1

of Article IX requiring the legislature to “encourage by all suitable means the promotion of

intellectual, scientific, moral, and agricultural improvement” in the interest of a general diffusion

of knowledge and intelligence, and Section 5 requiring the legislature to establish a system of free

common schools. The majority in this two-to-one decision ruled that neither provision sets forth a

right to a public school education of a particular quality. Nor do the provisions require the

legislature to provide a particular level of funding. While agreeing with the appellants that a

quality education is an important societal goal, the constitutional sections cited do not give the

courts the authority to “dictate to the Legislature, a coequal branch of government, how to best

exercise its constitutional powers to encourage education and provide for and support a system of

common schools throughout the state.”

In August 2016 the California Supreme Court by a 4-3 vote denied the appellants’ petition for

appeal. While the majority gave no reason for the rejection, Justice Goodwin Liu in a lengthy

dissent noted that “It is regrettable that this court, having recognized education as a fundamental

right in a landmark decision 45 years ago (Serrano v. Priest (1971) [citation omitted] should now

decline to address the substantive meaning of that right. The schoolchildren of California deserve

to know whether their fundamental right to education is a paper promise or a real guarantee. I

would grant the petition for review.” The denial of review and Justice Liu’s dissent is included in

the court of appeal’s decision. Campaign for Quality Education et al. v. State of

California/Robles-Wong v. State of California, 209 Cal.Rptr.3d 888 (Cal. App. 1 Dist. 2016).

CHAPTER 4

UNIONS AND COLLECTIVE BARGAINING

Page 133-134, 166: Correction on Application of NLRA to Lay Teachers in Catholic Schools.

While it is true that the National Labor Relations Act provides full bargaining rights to employees

in the private sector, this is not true for lay teachers in Catholic schools contrary to what is stated

on these pages. The 1977 U.S. Supreme Court Catholic Bishop decision referenced on p. 166 held

that both religious and lay faculty at religious schools must be excluded from NLRA coverage

because in enacting the act Congress had not expressed an intent to include teachers in church-

operated schools. The Court sidestepped the question of religious entanglement. However, several

states in the East have enacted laws that do permit lay faculty at religious schools to unionize.

And several Catholic dioceses themselves permit teachers to unionize. Here on the West Coast,

teachers, librarians, and counselors at four secondary schools operated by the Roman Catholic

Archdiocese of San Francisco are represented by the San Francisco Archdiocesan Federation of

Teachers, an affiliate of the California Federation of Teachers.

Page 142: New Employer Requirement Added to Educational Employment Relations Act.

A public school employer must now give reasonable written notice to a recognized union of the

employer’s intent to make any change to matters within the scope of representation for purposes

of giving the union a reasonable time to negotiate the proposed changes (Govt. Code §3543.2

(a)(2)).

Pages 158-159: Having to Pay Membership Fees Does Not Violate Union Members’ Free

Speech Rights; Union Agency Fee Requirement for Nonmembers Continues.

17

In 2015, a California federal district court rejected a lawsuit brought by four dues-paying

members of several teacher unions contending that having to join their union and pay dues forces

them to support certain union political and ideological views with which they disagree, thus

violating their free speech rights. If they choose not to pay union dues but only a fair share

service fee (often referred to as an agency fee), they argued that they forfeit certain benefits

available to dues-paying union members. Either way, their First Amendment free speech rights

are compromised. The district court rejected the contention, noting that unions are not state actors

and thus the First Amendment doesn’t apply to them. The terms of dues-paying membership are

not determined by the state but rather by the union. Bain et al. v. California Teachers Association

et al., 156 F.Supp.3d 1142 (C.D. Cal. 2015).

About the same time, a case reached the U.S. Supreme Court involving California teachers who

argued that requiring non-members in a public sector bargaining unit to pay a fair share service

fee for union activities violates their First Amendment rights. Both the Ninth Circuit and the

federal district court refused to rule on the matter, citing the Abood decision discussed on p. 159.

In March 2016 the Supreme Court in an equally divided decision affirmed the lower court

decisions without opinion. Friedrichs v. California Teachers Association, 136 S.Ct. 1083 (2016). The split vote means that the fair share service fee or agency fee requirement anchored in the

Abood decision discussed on this page continues.

CHAPTER 5

EMPLOYMENT

Pages 175 and 177: Former Certificated Employee Rehired as a Substitute is Not Entitled to

Permanent Status Immediately Upon Rehire.

Under Education Code Section 44931 a permanent certificated employee who resigns and is

reemployed by the same school district within 39 months of his or her last day of paid service is

entitled to return to permanent status.

The question for the court was whether Section 44931 applied if the employee is rehired as a

substitute teacher. Edwards v. Lake Elsinore Unified School District, 228 Cal. Rptr.3d 383 (Cal.

App. 4 Dist. 2014). The court held that Section 44931 does not apply when the former permanent

certificated employee is rehired as a substitute teacher.

Lori Edwards served as a certificated employee of the Lake Elsinore Unified School District from

the commencement of the 2003-04 school year until July 2006 at which time she voluntarily

resigned. In January 2007 she applied for reemployment with the district as a substitute teacher.

Various records – including time sheets and retirement documents – completed by Lori and the

district referred to her as a substitute teacher.

Lori alleged that the district improperly classified her as a substitute teacher upon her rehire and

should have classified her as a permanent certificated employee. Retroactive pay was the primary

remedy she sought because the district ultimately classified her as a permanent certificated

employee effective August 2008.

Lori first argued that she was a permanent employee because the district had not given her an

employment contract identifying her as a substitute employee. The court, however, observed that

because Lori was hired as a substitute rather than a temporary employee she was not entitled to a

written employment contract under Education Code Section 44916 at the time of her

reemployment in January 2007. The court also held that Lori was not entitled to a written

18

employment contract under Education Code Section 44909, which applies to certain categorically

funded positions, because she was not hired to fill a categorically funded position.

Lori next argued that Education Code Section 44918 entitled her to retroactive pay. The court

disagreed and noted that Section 44918 merely provides for retroactive credit of one year of time

served as a probationary teacher for a substitute teacher who works in a certificated position for at

least 75 percent of the school year and is hired as a probationary teacher for the next school year.

The court also rejected Lori’s argument that she was entitled to retroactive benefits under Section

44931 because the evidence established that she was rehired in January 2007 as a substitute

employee and not as a permanent certificated employee.

Pages: 181, 192, and 195: Trial Court Decision Declaring Certain Teacher Employment

Laws Unconstitutional Overruled.

In June 2014, a superior court judge in Los Angeles triggered considerable controversy when he

ruled in Vergara v. State of California that sections of the Education Code pertaining to the two-

year probationary period (44929.21), teacher dismissal (44934, 44938 (b)(1) and (2), 44944), and

last in-first out layoff (44955) violate the equal protection clause of the California Constitution.

The plaintiffs in the case were nine public school students alleging that the statutes result in

“grossly ineffective teachers obtaining and retaining permanent employment, and that these

teachers are disproportionately situated in schools serving predominately low-income and

minority students.” In doing so, the plaintiffs argued that the statutes violate their fundamental

right to equal educational opportunity. The judge agreed and ruled that laws fail to meet the strict

level of judicial scrutiny necessary when they intrude on constitutional rights.

Two years later, a California appellate court reversed the trial court’s decision. First, the court

found that which students are assigned grossly ineffective teachers is not specifically identifiable

for purposes of an equal protection challenge because the student group varies from year to year.

In effect, the subset of students is basically a random assortment. This is particularly true when,

according to the trial court’s findings, only 1 to 3 percent of California teachers are allegedly

grossly effective. Second, the court pointed out that it is not the laws that assign poorly

performing teachers to schools serving large numbers of low income and students of color but

school administrators who decide which teachers they want in their schools and which teachers

should be transferred to other schools. This so-called “dance of the lemons” results from staffing

decisions. Declaring the statutes facially unconstitutional would not prevent administrators from

continuing to assign ineffective teachers to schools serving mostly low-income students and

students of color.

In August 2016, the California Supreme Court by a 4-3 vote declined to take up the matter, thus

leaving the appellate court decision standing. The majority issued no opinion for the rejection. In

his dissent, Justice Mariano-Florentino Cuellar noted that “Beatriz Vergara and her fellow

plaintiffs raise profound questions with implications for millions of students across California.

They deserve an answer from this court. Difficult as it is to embrace the logic of the appellate

court on this issue, it is even more difficult to allow that court's decision to stay on the books

without review in a case of enormous statewide importance.” The appellate court ruling later was

reissued to include the California Supreme Court’s dissenting opinions. Vergara v. State of

California, 209 Cal.Rptr.3d 532 (Cal. App. 2 Dist. 2016).

Page 187: Notice of Nonreelection Sufficient Despite Reference to Incorrect Code Section.

Shanna Petersil was hired as a temporary certified employee by the Santa Monica-Malibu Unified

School District in August of 2008. Shanna worked a single day for the district before signing a

19

contract identifying her as a temporary employee. In March of 2009, the district sent a notice of

nonreelection to Shanna and then rehired her as a temporary employee in July of 2009. The

district sent another notice of nonreelection to Shanna in March of 2010. The notices referred to

Shanna as a temporary employee and referenced the Education Code section permitting the

nonreelection of temporary employees.

Shanna argued to the court that the notices of nonreelection were not sufficient because she was

actually a probationary employee by virtue of working a day before signing her employment

contract and therefore not given sufficient notice of nonreelection as the nonreelection notices

from the district only made reference to the Education Code section pertaining to nonreelection of

temporary employees. The court agreed with Shanna that she was in fact a probationary employee

because she worked a day before signing the contract designating her as a temporary employee

but held that the reference in the nonreelection notices to the incorrect code section did not

invalidate the district’s nonreelection. The court noted that Education Code Section 44929.21 (b)

merely requires that the probationary employee be notified of the board’s decision to reelect or

not reelect before March 15 of the second year of employment. Shanna further argued that the

first notice of nonreelection was insufficient because it was not personally served on her but

instead sent by certificated mail. The court rejected this argument and noted that Shanna

acknowledged actual receipt of the notice, which was sufficient. Petersil v. Santa Monica-Malibu

Unified School District, 161 Cal. Rptr.3d 851 (Cal. App. 2 Dist. 2013).

Pages 189 and 195-196: California Legislature Adds Egregious Conduct to Dismissal

Statute as Part of Teacher Dismissal Reform Bill and Modifies the Teacher Dismissal

Process.

Governor Brown signed AB 215 on June 25, 2014. The law brings about substantial changes to

teacher discipline and dismissal proceedings, including the addition of egregious conduct as a

new ground for dismissal.

AB 215 amends Education Code Section 44932 to permit dismissal of a teacher for “egregious

conduct”, which is defined “exclusively as immoral conduct that is the basis for an offense

described in Section 44010 [sex offense] or 44011 [controlled substance offense] . . . or in

Sections 11165.2 [neglect of a child] or 111.65.6 [child abuse or neglect], inclusive, of the Penal

Code.”

Section 44934.1 has been added to the Education Code to provide for a separate hearing process

for cases based solely on egregious conduct. The hearing process for an egregious conduct case is

outlined in Section 44934.1 and contains unique features including adjudication by the Office of

Administrative Hearings (OAH) instead of the panel which comprises the Commission on

Professional Competence, admission of evidence that is more than four years old for certain sex

offenses and child abuse, and the opportunity for the prevailing party to recover attorneys’ fees if

the OAH decision is appealed and upheld by the court.

Other changes have been made to the existing dismissal process. Education Code Section 44934

was revised to permit a school district to amend written charges to suspend or dismiss a teacher

less than 90 days before the hearing upon a showing of good cause. Education Code Section

44936 was amended to permit the provision of written notice to a teacher of suspension or

dismissal at any time during the year with the exception that a notice of unsatisfactory

performance can only be given during the instructional year at the schoolsite where the employee

is located. The prehearing procedures also have been revised with limitations placed on discovery

unless egregious conduct is the only charge. Education Code Section 44939 permits an employee

against whom suspension or dismissal is being pursued under Section 44934 to file a motion with

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the OAH seeking immediate reversal of the suspension without pay that accompanies such

charges. Review of the motion is limited to a determination of whether the facts alleged, if true,

are sufficient to warrant immediate suspension.

Section 44939.5 has also been added to the Education Code to prohibit a school district from

entering into an agreement with a teacher that would prevent a mandatory report of egregious

conduct or expunging from a teacher’s personnel file “credible complaints of, substantiated

investigations into, or discipline for egregious conduct.”

Pages 194 and 196: Board’s Failure to Consider or Formulate Written Charges Prior to

Initiating Termination of Permanent Certificated Employee Does Not Invalidate

Termination.

Vincent DeYoung was a permanent certificated employee of the Hueneme Elementary School

District. The district’s governing board voted to dismiss him based on charges that he had

physically and abusively disciplined his students. The dismissal hearing proceeded and Vincent’s

contract was terminated.

Education Code Section 44934 requires a governing board to file or formulate written charges

prior to voting for the dismissal of a permanent certificated employee. The district’s governing

board did not file or formulate written charges before voting for Vincent’s dismissal and he

argued that their failure to do so invalidated his termination.

The court observed that while Section 44934 requires the governing board to file or formulate

written charges before voting on dismissal, the statute does not specify a remedy for a governing

board’s failure to do so. The court thereafter held that in the absence of some prejudice to Vincent

– and the court found none – the governing board’s failure to file or formulate written charges

before voting for the dismissal did not invalidate the subsequent termination of the contract.

DeYoung v. Commission on Professional Competence of the Hueneme Elementary School District,

175 Cal. Rptr 3d 383 (Cal. App. 2 Dist. 2014).

Page 198: Reed Litigation Involving Teacher Layoffs in the Los Angeles Unified School

District Settled.

The parties in this case agreed in 2014 that to exempt teachers at the low-performing schools

involved in the litigation from seniority-based layoffs across the district, the district must provide

funding to attract, mentor, and retain teachers at these schools. Each school will receive an

additional assistant principal and counselor, a special education coordinator, and several mentor

teachers. In the event of future layoffs, the settlement provides that the district must establish that

its teacher training justifies exempting teachers at these schools.

Page 200: School District Expending Funds for Personnel Training Must Consider Needs of

Classified Personnel.

Sections 45390 and 45391 have been added to the Education Code. These sections require a

school district expending funds for the professional development of any schoolsite staff also to

consider the professional development needs of its classified employees. The professional

development may be in any of a number of areas relevant to public schools, including working

with at-risk youth, curriculum, and special education.

Page 205: California Legislature Extends Differential Pay for Certificated Employees to

Maternity and Paternity Leave.

Education Code Section 44977.5 provides additional differential pay benefits to a certificated

employee in the form of up to 12 school weeks of maternity or paternity leave. The 12-week

21

period is be reduced by any period of sick leave, including accumulated sick leave, taken during

the paternity or maternity leave. Each certificated employee may only receive one 12-week period

per maternity or paternity leave and to the extent Section 44977.5 conflicts with an existing

collective bargaining agreement, the section shall not apply until expiration or renewal of the

agreement. Birth of an employee’s child and placement of a child with an employee in connection

with the adoption or foster care of the child are included within the section’s definition of

maternity or paternity leave.

Page 205: Leave Rights for Public Employees Who Are Military Veterans.

A certificated employee hired on or after January 1, 2017, who is a military veteran with a

military service-connected disability rated at 30 percent or more by the U.S. Department of

Veterans Affairs is entitled to a leave of absence for illness or injury with pay of up to 10 days for

undergoing medical treatment for the military service-connected disability. For certificated

employees, the days of treatment are 12. These provisions do not affect a collective bargaining

agreement that provides greater leave rights. For more details, see Education Code Sections

44978.2 and 45191.5.

Page 207: Title VII Update and Correction. Title VII now encompasses discrimination based on sexual orientation. The statement regarding

Title VII and sexual orientation in the middle of this page and again on p. 211 needs to reflect the

change. Also, the reference in the bottom paragraph on p. 207 that straightforward allegations of

discrimination are termed disparate treatment claims was misplaced. These are known as

intentional discrimination claims. Disparate impact claims are those as described in the next

sentence in this paragraph.

Pages 208, 211: Can a Female Management Math Consultant Be Paid Less Than Her Male

Counterparts?

It depends. Aileen Rizo, a Fresno County Office of Education math consultant, filed a federal

lawsuit maintaining that basing her current lower salary on her prior salary level violates (1) the

federal Equal Pay Act (29 U.S.C. §206(d), (2) Title VII of the 1964 Civil Rights Act, and (3) the

California Fair Employment and Housing Act. The U.S. Court of Appeals for the Ninth Circuit

focused only on the Equal Pay Act, since it had ruled previously that standards under Title VII are

the same and since there was no assertion that equal pay standards under the California Fair

Employment and Housing Act are any different than under federal law. In this case, the county

office of education asserted that while there was a pay differential, this was caused by Rizo’s

lower prior salary, not her gender. The Ninth Circuit returned the case to the trial court to

determine if there was justification for the county office’s claims that the prior salary differential

was based on factors such as encouraging persons to leave previous employment and the judicial

use of taxpayer dollars. If prior salary alone was responsible for the differential, the Equal Pay

Act is being violated. Rizo v. Vovino, 854 F.3d 1161 (9th Cir. 2017).

CHAPTER 6

RIGHTS OF EXPRESSION

Page 218: U.S. Supreme Court Rules that Public Employee Testimony in Judicial or

Administrative Hearings is Constitutionally Protected.

The case involved an Alabama community college administrator, Edward Lane, who was hired

on a probationary basis to direct a statewide training program for underprivileged youth. Lane

dismissed Suzanne Schmitz, an Alabama State Representative who was employed by the training

program but regularly did not show up for work. Lane’s action triggered considerable public

attention and prompted an FBI investigation into Schmitz’s employment based on public

22

corruption concerns. Lane testified before a federal grand jury and later trial against Schmitz

about his reasons for firing her. Subsequently when the training program experienced budget

shortfalls, Lane was one of 29 probationary employees who were dismissed by Steve Franks, the

new community college president.

Lane sued Franks alleging that his dismissal was in retaliation for his grand jury and trial

testimony. Both the trial and appellate courts relied on Garcetti v. Ceballos to reject the lawsuit

because Lane’s speech, even if considered a matter of public concern, was based on what he had

learned as an employee pursuant to his official duties. The U.S. Supreme Court overturned this

part of the appellate court decision, ruling that the First Amendment protects public employees

from retaliation for providing truthful sworn testimony under oath even if the content of the

speech is learned while acting as an employee. This is so because sworn speech “is a

quintessential example of speech as a citizen” and is protected by Pickering v. Board of

Education when on a matter of public concern. Further, there was no evidence that Lane’s

testimony was false or erroneous or undermined his effectiveness as an employee (see the

Pickering discussion regarding when free speech even on matters of public concern lose its

protection). Lane v. Franks, 134 S.Ct. 2369 (2014).

Page 219: No Free Speech Protection for High School Campus Supervisor Who Told

Students to Video-Record Police Brutality During a Fight in the School Parking Lot.

A Bear Creek High School campus supervisor contended that she had a First Amendment right to

direct students to video-record police arrest of a female African-American student they had taken

to the ground during a fight between students and non-students in the school parking lot. The

supervisor allegedly yelled that the arrest “was police brutality” and “bullshit” before she told

students to do the video-taping. The judge held that the campus supervisor was speaking out as a

public official to students within the scope of her employment and thus there was no violation of

her First Amendment rights when school officials reprimanded her and recommended termination

of her employment for escalating the turmoil. Toney v. Young, 238 F.Supp.3d 1234 (E.D. Cal.

2017).

Page 221: More on Employee Complaints Made During the Scope of Employment.

An Edmonds, Washington, middle school special education teacher who managed the district’s

Educational/Behavioral Disorders program challenged her dismissal as retaliation for speaking

negatively to school administrators and parents about the program. In upholding the trial court’s

rejection of her claims, the Ninth Circuit, which has jurisdiction for a number of western states

including California, cited the U.S. Supreme Court’s Garcetti v. Ceballos decision in noting that

the comments were made within the scope of her employment and thus not protected by the First

Amendment. Coomes v. Edmonds School District No. 15, 816 F.3d 1255 (9th Cir. 2016).

What is interesting about the ruling is that the judges noted that the teacher’s job description

encompassed both up-the-chain complaints and speaking to parents. So her complaints embedded

in a chain of emails to both were unprotected. The Ninth Circuit did not address how

encompassing a job description can be, a matter that the U.S. Supreme Court justices cautioned

against. The judges also sidestepped the teacher’s assertion that speaking to her union about the

matter was constitutionally protected as made outside the scope of her employment since she

hadn’t argued that point. Whether her complaints may have been protected under Washington

State law also was not addressed and the case returned to the trial court on this issue. As noted in

California School Law, employee speech may be more protected under state law than under the

First Amendment.

23

Page 236: U.S. Court of Appeals for the Ninth Circuit Rules on When Student Off-campus

Speech via an Electronic Communication Device Loses its Free Speech Protection.

In a cautious 2013 decision that examines the complex dimensions of student off-campus speech,

the Ninth Circuit upheld the ten-day suspension and later ninety-day expulsion of a Nevada

student who sent a series of MySpace messages to his fellow students about a planned school

shooting. Included in the postings from his home computer were discussions of the weapons he

possessed, his admiration for Adolph Hitler, and his intention to conduct a school shooting on

April 20. The latter is the date of Hitler’s birth and the Columbine massacre. For example, in one

posting he stated “I wish then I could kill more people / but I have to make due with what I got. /

1 sks & 150 rds / 1 semi-auto shot gun w/sawed off barrel / 1 pistle.” Some of his friends were

sufficiently concerned that they alerted school officials. The student challenged the disciplinary

action on several grounds, one of which was violation of his rights of free speech.

Rather than craft a one-size fits all standard, the appellate judges noted that “when faced with an

identifiable threat of school violence, schools must take disciplinary action in response to off-

campus speech that meets the requirements of Tinker.” These requirements encompass material

interference with school activities and invasion of the rights of others. In this case, they noted that

it was reasonable for school officials to take seriously what the student had said about causing

violence at school. Indeed, the student admitted to a police officer that he had weapons and

ammunition at his house. And clearly the student’s threatening the entire student body and

targeting specific students by name constituted invasion of the rights of others. Thus, the Tinker

standards were met. At the same time, the judges noted that their decision did not imply approval

of the school’s action. They noted, for example, that school officials could have opted for a less

punitive approach that encompassed in part counseling by a mental health professional. Wynar v.

Douglas County School District, 728 F.3d 1062 (9th Cir. 2013).

Three years later the Ninth Circuit relied in part on Wyman in affirming a lower court decision

that an Oregon school district did not violate a seventh grade student's free speech rights by

suspending the student for verbally sexually harassing two fellow seventh graders with

disabilities on the way home after school. The harassment started a few hundred feet from the

school along a path that begins at the school door and runs from school fields across a public park

to a street. There is no fence or other boundary marker that separates the park from school

property. The judges agreed that school administrators could reasonably foresee that the effects of

the harassment would affect the victims' school experience. Indeed, the two students did tell the

assistant principal that they felt uncomfortable, and there was some discussion about it among

students at lunch. What is important about this decision is that goes beyond off-campus electronic

communication to focus on face-to-face student comments. C.R. v. Eugene School District 4J,

835 F.3rd 1142 (9th Cir. 2016).

Page 242: Banning Students from Wearing Clothing Displaying the American Flag on

Cinco de Mayo Day Does Not Violate the First Amendment.

The U.S. Court of Appeals for the Ninth Circuit has upheld a federal district court ruling 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 appellate court noted that officials did not enforce a

blanket ban on American flag apparel. Several students were allowed to wear their shirts with less

prominent flag imagery to class when it was clear that the shirts were not likely to make them

targets of retaliation. In effect, both the trial and appellate courts deferred to the judgment of

24

school officials, based on the facts as presented. Dariano v. Morgan Hill Unified School District,

767 F.3d 764 (9th Cir. 2014).

Page 242: Messages Displayed on Uniforms.

As noted on this page, in 2008 the U.S. Court of Appeals for the Ninth Circuit ruled two-to-one in

Jacobs v. Clark County School District that a Nevada school district did not violate student

expression and free exercise of religion rights when it forbid the display of messages on a school

uniform. Consisting of plain-colored tops and bottoms, the uniform policy did permit display of

school logos but the majority viewed these as less a form of expression than as an identification

mark.

In another Nevada case involving a similar elementary school dress code policy, two three-judge

panels disagreed with one another in a case requiring students to display the motto “Tomorrow’s

Leaders” above the school logo on the school required shirt and also permitting an exemption

from complying with the dress code for nationally recognized youth organizations like Boy

Scouts or Girl Scouts on regular meeting days. The motto display, the first panel ruled, is a form

of compelled speech. And the policy is not content-neutral because it permits an exemption for

certain youth organizations. Because of the free speech implications, the judicial standard of strict

scrutiny must be made to assure that it is narrowly tailored to serve a compelling state interest.

The Ninth Circuit returned the case to the trial court to apply this standard to the dress code

policy to determine if it violated student First Amendment rights. Frudden v. Pilling, 742 F.3d

1199 (9th Cir. 2014). Before the trial court ruled on the matter, the school board of trustees

adopted a new policy under which school uniforms could have a logo with the school name and

mascot but no other language. This meant that “Tomorrow’s Leaders” could no longer be

displayed on school uniforms and the elementary principal so informed parents. The trial court

subsequently ruled in favor of the defendants.

The case was then appealed again to the Ninth Circuit, and this time a different panel disagreed

with the first panel on the standard to apply to the matter, though agreeing that the matter was

moot in light of the change in the uniform policy. This three-judge panel maintained that

intermediate scrutiny rather than strict scrutiny should have been used. And, if this standard were

used, the “Tomorrow’s Leaders” motto and the exemption for nationally recognized youth

organizations would not violate the First Amendment. But because all the judges on the Ninth

Circuit had refused to hear the case a second time, this panel deferred to the judgment of the first

panel on the strict scrutiny standard and upheld its ruling. It sent the case back to the trial court to

determine if the individual school employees could be subject to damages. Frudden v. Pilling,

877 F.3d 821 (9th Cir. 2017). How the Ninth Circuit will deal with matters involving school

uniforms in the future remains to be seen.

CHAPTER 7

THE SCHOOL AND RELIGION

Page 263: Football Coach Went Too Far in Praying on Football Field After Games.

The U.S. Court of Appeals for the Ninth Circuit that has jurisdiction for a number of western

states including California agreed with a federal district court in Bremerton, Washington, that a

high school assistant football coach's speech while kneeling in prayer on the football field

following games in presence of students and spectators was not private speech but public speech

by a school employee that could be subject to content control by the school district under the U.S.

Supreme Court’s Garcetti v. Ceballos decision (see p. 218 in the previous chapter). Here, the

district had placed the coach on administrative leave after he continued to pray on the fifty-yard

line immediately after games contrary to the school district’s directives to avoid religious

25

endorsement in his coaching capacity. Kennedy v. Bremerton School District, 869 F.3d 813 (9th

Cir. 2017).

Page 265: See Update For Page 62 Above Regarding Lawsuit Brought by Hindu

Organization Challenging Portrayal of Hindu Religion in State Board of Education’s

History-Social Science Content Standards.

Page 269: Yoga Classes in the Encinitas School District Ruled Not to Advance Religion. Based on a detailed review of evidence produced in the trial court, a California court of appeal

has ruled that incorporation of yoga in physical education for elementary students in the Encinitas

Union School District does not advance religion contrary to the establishment clause in Article I,

Section 4 of the California Constitution. The court noted that when the program was initiated,

some parents complained that it was advancing Hinduism. The program was funded by a grant

from the KP Jois Foundation, which promotes Ashtanga yoga as explained in Hindu texts. The

district responded by revising the program to remove features that could be construed as religious

(e.g., Sanskrit language, Ashtanga tree poster, guided meditation scripts). Character quotations

from religious figures were replaced with those from famous persons like Babe Ruth and Martin

Luther King. The appellate court noted that while a reasonable person might know that a grant

from the Jois Foundation was linked to Hinduism, that same person "would also be aware that, as

implemented (italics), the District's yoga program was clearly not (italics) Astanga eight-limbed

yoga." The yoga teachers were from the district, and the district itself was not involved with the

Jois Foundation. The latter's involvement in the program other than funding it was in assisting the

district in ensuring that yoga teachers would be proficient teaching yoga poses to students.

Sedlock v. Baird, 185 Cal. Rptr.3d 739 (Cal. App. 4 Dist. 2015).

CHAPTER 8

STUDENTS WITH DISABILITIES

Pages 297-298 and 308-311: California Code of Regulations, Title 5, Revised to Conform to

Federal Law.

Effective July 1, 2014, various sections of Title 5 of the California Code of Regulations relevant

to special education were revised to conform to federal law.

The eligibility categories in the Title 5 regulations are now identical to those contained in federal

law. As a result, the definitions of autism and specific learning disability have been revised.

These changes are significant in that the revised specific learning disability definition now

permits school districts to utilize a response to intervention or pattern of strengths and weaknesses

analysis to qualify a student under the eligibility category of specific learning disability and the

revised autism definition contains different criteria than the prior definition for “autistic-like

behaviors”. The revised eligibility categories are found in California Code of Regulations, Title 5,

Section 3030. Other amendments to the Title 5 regulations include replacing the phrase

“designated instruction and services” with “related services” and clarifying qualifications for

individuals to provide special education and related services.

Page 300: United States Supreme Court Revisits Educational Progress Required Under

Free Appropriate Public Education Standard.

In March of 2017 the United States Supreme Court revisited the amount of educational progress

required under the free appropriate public education (FAPE) standard for the first time since the

Court’s decision in Board of Education v. Rowley.

26

The case concerned Endrew F. who is eligible for services under the category of autism and

attended Douglas County School District in Colorado from preschool through the fourth grade.

Unsatisfied with the individualized education program (IEP) made available to Endrew, his

parents filed an administrative due process hearing against the district and later appealed that

decision – which was favorable for the district – to a federal district court and the Tenth Circuit

Court of Appeals. The administrative law judge, federal district court, and the Tenth Circuit Court

of Appeals all found that the IEPs developed for Endrew by the District were reasonably

calculated for Endrew to make some progress which they defined as “merely more than de

minimis.” De minimis means trivial.

The Court reversed the Tenth Circuit Court of Appeals and held that a FAPE requires that an IEP

be reasonably calculated to enable the child to make appropriate educational progress in light of

the child’s circumstances and that sufficient progress means a level of benefit greater than

“merely more than de minimis.” The Court declined to establish a bright line rule as to what

constitutes appropriate progress but did note that a FAPE requires a school district to design a

program which allows the student to advance appropriately toward attaining IEP goals and, when

possible, be involved in and make progress in the general curriculum. The Court also

acknowledged that grade level advancement may not be a realistic goal for all children with IEPs

but that these children are nonetheless entitled to an educational program that is “appropriately

ambitious in light of the [child’s] circumstances.”

The Court’s decision does not appear to fundamentally alter the legal analysis of a FAPE in

California as the Office of Administrative Hearings has for many years required that a child

receive “meaningful” educational benefit and that the child’s unique, disability-related needs are

to be considered in determining if meaningful educational benefit was attained. Endrew F. v.

Douglas County School District, 137 S.Ct. 988 (2017).

Page 306: U.S. Court of Appeals for the Ninth Circuit Holds that School District Should

Have Suspected Autism for Child, District’s Failure to Conduct Autism Assessment Could

Not Be Excused by District’s Possession of Third Party Autism Report, and District’s

Failure to Conduct Its Own Autism Assessment of the Child Denied the Child a Free

Appropriate Public Education.

The Ninth Circuit addressed whether a school district could be excused from conducting its own

assessment of a child in the area of autism because the district received an autism report for the

child completed by an evaluator not subject to the assessment criteria in the IDEA. The Ninth

Circuit held that the Paso Robles Unified School District could not and that by doing so the

district denied the child, Luke, a free appropriate public education. The decision emphasizes the

importance of school districts conducting their own appropriate assessments of children in all

areas of suspected disability.

The district evaluated Luke in 2009 shortly before his third birthday to determine if he was

eligible for special education services. The assessment plan governing the district’s assessment of

Luke did not identify “social/adaptive behavior” – the category covering autism – as an area of

assessment and no assessment tools were utilized during the assessment to evaluate Luke to

determine if he did satisfy the eligibility category of autism. A district school psychologist,

however, did informally observe Luke while he was being assessed by other district employees

and determined that it was not necessary for the district to evaluate Luke in the area of autism.

Two days before the district convened an IEP team meeting to review its initial evaluation of

Luke the district received a report from the regional center. Regional centers provide non-

educational services to children with disabilities. The regional center report provisionally

27

diagnosed Luke with Pervasive Developmental Disorder, Not Otherwise Specified, which is a

disorder on the autism spectrum. At the IEP team meeting, no mention was made of the school

psychologist’s observation of Luke or the regional center report. The IEP team determined that

Luke satisfied the eligibility criteria for speech or language impairment.

Luke’s parents later filed a due process hearing request with the Office of Administrative

Hearings (OAH) against the district. They alleged, among other claims, that the district violated

the IDEA by failing to assess Luke in the area of autism and failing to address Luke’s autism-

related needs at school. The OAH denied the parents’ claims and found that regardless of whether

the district’s initial evaluation was deficient there was no need for the district to conduct

assessment of Luke in the area of autism because the report from the regional center thoroughly

assessed Luke in that area.

Luke’s parents appealed to federal district court which affirmed the decision of the OAH. The

court held that it was not necessary for the district to conduct an autism assessment of Luke

because the school psychologist did not observe Luke exhibiting obvious characteristics of autism

during the observation and further held that even if such an assessment were warranted any

failure to assess in the area of autism was harmless error because the IEP team made appropriate

recommendations for Luke in consideration of the regional center report.

The Ninth Circuit reversed the district court and focused its analysis on the school district’s

failure to assess Luke in all areas related to his suspected disability. The Ninth Circuit noted that a

disability is “suspected”, and therefore must be assessed by the school district consistent with the

requirements of the IDEA, when the district has notice that the child has displayed symptoms of

the disability. Informed suspicions of parents or outside experts are sufficient to place a school

district on notice that a particular disability is “suspected” and it is for this reason that the Ninth

Circuit held that once the district received the regional center report, it was on notice that autism

was a suspected disability for Luke and therefore an area in which the district must evaluate Luke

consistent with the requirements of the IDEA. The Ninth Circuit thereafter held that the school

psychologist’s informal observation of Luke was not an appropriate assessment under the IDEA

because, among other flaws, the parents were not made aware of the observation or the opinion

formed after the observation which the IDEA requires through the provision of an assessment

plan to parents identifying the areas to be assessed and the subsequent generation of reports from

those assessments with review of the reports by an IEP team. The Ninth Circuit further held that

the regional center report did not excuse the district’s failure to evaluate Luke in the area of

autism because the assessment conducted for that report was not performed consistent with the

requirements of the IDEA and there was no evidence that the report was actually considered by

the IEP team.

A failure to assess in an area of suspected disability is a procedural violation of the IDEA. The

IDEA states that a procedural violation in and of itself, however, does not deny the child a FAPE.

Rather, to deny the child a FAPE, the violation must seriously impair the parents’ opportunity to

participate in the formulation of the child’s IEP, result in the loss of educational opportunity for

the child, or cause a deprivation of the child’s educational benefits. The Ninth Circuit determined

that the district’s failure to assess Luke in the area of autism was a substantial procedural

violation that both deprived him of educational benefit and substantially hindered his parents’

participation in the IEP process.

The lesson of the case is clear. If a school district is on notice that a child is suspected of having a

disability, the district must conduct its own IDEA-compliant assessment of the child in the area of

28

suspected disability and provide an assessment report to the IEP team for review. Timothy O. v.

Paso Robles Unified School District, 822 F.3d 1105 (9th Cir. 2016).

Page 308: U.S. Court of Appeals Determines that Classroom Supports Provided to Student

Without IEP Were Special Education Services Which in Combination with Educational

Impact Resulting from Absences Related to Child’s Psychiatric Hospitalizations and

Suicide Attempts Demonstrated that Child Was Eligible for Special Education Services

Under the IDEA.

The IDEA sets forth two criteria for a child to be determined eligible for special education

services: The child must meet one or more of the IDEA’s eligibility categories (e.g., autism,

specific learning disability, etc.) and, by reason thereof, require special education and related

services. In this case the Ninth Circuit addressed whether L.J., a student the parties agreed

satisfied three eligibility categories, required special education and related services and therefore

an IEP. The Ninth Circuit determined that L.J. did require special education and related services,

should have been determined eligible for an IEP by the Pittsburg Unified School District, and was

denied a free appropriate public education by the district’s failure to determine L.J. eligible for

special education services and develop an IEP for him.

L.J. demonstrated both physically and verbally aggressive behaviors in the 2nd through 5th

grades including hitting and kicking his teachers and calling teachers and students names. In the

2nd grade he responded to a teacher disciplining him by saying he wanted to kill himself. An

emergency suicide evaluation diagnosed him with ADHD, Oppositional Defiance Disorder, and

Bipolar Disorder. The district provided L.J. – even though he did not have an IEP – with a

paraeducator to support him in the classroom. The district evaluated L.J. for special education

services toward the end of his 3rd grade year and determined that he was not eligible for special

education services. Later that summer L.J. was admitted for psychiatric hospitalization and

detained as a danger to himself and others for banging his head and making threats.

L.J.’s parents thereafter filed a due process hearing request with the OAH against the district. The

parties resolved the case by agreeing that the district would reevaluate L.J. and place him at a

different school site for his 4th grade year. In September of that year L.J. was suspended for

throwing rocks and threatening to kill the principal. L.J., however, continued to receive the

support of the paraeducator and other special accommodations and his academic performance was

satisfactory. The IEP team considered the district’s reevaluation of L.J. and determined once

again that he was not eligible for special education services under the IDEA.

L.J.’s parents filed another due process hearing request against the district, and the OAH

determined that L.J. did not satisfy any of the IDEA’s eligibility categories and did not require

special education services. L.J.’s parents appealed the decision of the OAH to federal district

court, and the court disagreed with the OAH’s decision that L.J. did not satisfy any of the IDEA’s

eligibility categories. The court determined that L.J. satisfied the criteria for specific learning

disability, other health impairment, and serious emotional disturbance but nonetheless ruled for

the school district by determining that L.J. did not need special education services because of his

satisfactory performance in the general education classroom.

L.J.’s parents appealed the district court’s decision to the Ninth Circuit. Neither party challenged

the district court’s determination that L.J. satisfied three of the IDEA’s eligibility categories. The

parties focused their arguments on whether L.J. required special education services. In ruling for

L.J., the Ninth Circuit focused on the types of supports the district had provided to L.J. when he

did not have an IEP and determined that these supports were not general education interventions

and instead special education. The Ninth Circuit held that general education instruction does not

29

provide for the one-to-one direction L.J. received from a paraeducator, the mental health services

L.J. received through a school wide mental health program, nor the clinical interventions L.J.

received from a behavior specialist who advised staff on how to address L.J.’s behaviors. The

Ninth Circuit concluded that although L.J. made progress in his educational program without an

IEP the progress was attributable in substantial part to the special education services he received.

The Ninth Circuit further supported its determination that L.J. was eligible for an IEP by noting

that L.J.’s emotional issues negatively impacted his attendance and that his absences interfered

with his education.

As schools increasingly provide school-wide interventions to general education students to

improve educational outcomes, this case serves as a good reminder of the careful consideration

that should be given to how those interventions figure into the analysis of whether a particular

student requires special education services under an IEP. L.J. v. Pittsburg Unified School District,

835 F.3d 1168 (9th Cir. 2016).

Page 319: Effective July 1, 2013, Title 5, California Code of Regulations Functional Analysis

Assessments and Behavior Intervention Plans are no Longer Required.

Assembly Bill (AB) 86 aligns those portions of the Education Code addressing behavior for

children with disabilities with the requirements of the IDEA. AB 86 eliminates the requirements

previously found in the Title Five, California Code of Regulations that school districts undertake

a functional analysis assessment and the requirement that a school district develop a behavior

intervention plan. The California Education Code now provides that a school district should

undertake a functional behavioral assessment or FBA (an evaluation of behavior) for students that

require behavioral interventions and, where appropriate, develop a behavior intervention plan or

BIP (a plan identifying how to address the student’s behaviors) to support these students. The

term BIP as it is now used in the Education Code is derived solely from the IDEA and is not a

reference to the detailed document previously known as a BIP under the Title 5 regulations. AB

86 also adds language to the Education Code addressing the use of emergency behavioral

interventions such as physical restraint. These same requirements regarding emergency were

previously in the Title 5, California Code of Regulations. The above-noted additions to the

Education Code are at Section 56520 and following sections.

Page 325: U.S. Court of Appeals for the Ninth Circuit Emphasizes Necessity of School

Districts Initiating Due Process Hearings to Resolve Program Disputes.

Education Code Section 56346 requires a school district to initiate a due process hearing if the

district determines that a component of the proposed special education program to which the

parent does not consent is necessary to provide a FAPE to the child. The question for the Ninth

Circuit in this case was whether the Los Angeles Unified School District’s failure to initiate a due

process hearing for a period of one and one-half years while the parent and district disagreed over

the placement offer in the child’s IEP was unreasonable and denied the child a FAPE. The Ninth

Circuit determined that the district waited too long to file a due process hearing request and

thereby denied the child a FAPE because the child remained in an inappropriate placement.

A November 2010 IEP recommended that I.R., a second grader eligible under the category of

autism, attend a special day class. I.R.’s mother refused to consent to the special day class and

insisted that I.R instead attend a general education classroom with a one-to-one aide. Subsequent

IEPs through 2012 continued to recommend that I.R. attend a special day class and I.R.’s mother

maintained her position that I.R. attend a general education classroom. The district did not initiate

a due process hearing to address the placement dispute and I.R. remained in the general education

classroom preferred by her mother.

30

In May 2012 I.R.’s parents filed a due process hearing request against the district alleging that the

district denied I.R. a FAPE on various grounds, including on the basis that the district failed to

comply with Section 56346 by requesting its own due process hearing to resolve the placement

dispute. The OAH found in favor of the district for the most part and determined that the district’s

failure to request a hearing did not deny I.R. a FAPE because the IEP team offer of a special day

class was appropriate for I.R. and it was the refusal of I.R.’s mother to consent to the placement

which had denied I.R. a FAPE.

The federal district court affirmed the decision of the OAH, but the Ninth Circuit reversed. The

Ninth Circuit held that the goal of Section 56346 is to ensure that placement disputes are resolved

promptly and that while school districts must have some flexibility to consider the reasons for a

parent’s refusal to consent to an IEP, the one and one-half year delay by the district in not filing a

due process hearing request despite the placement dispute was too long. The Ninth Circuit further

held that the district’s failure to timely file a hearing request was a procedural violation of the

IDEA which denied I.R. a FAPE because I.R. lost educational opportunity by remaining in an

inappropriate placement. I.R. v. Los Angeles Unified School District, 805 F.3d 1164 (9th Cir.

2015).

Page 325: U.S. Court of Appeals for the Ninth Circuit Clarifies Application of Two-Year

Statute of Limitations for Filing Administrative Due Process Hearing Complaints.

The underlying dispute arose in 2009 when the parents of G.A. – a child eligible for services

under the category of autism – challenged the Spokane School District 81’s assessment and

individualized education program (IEP) for their child. The administrative hearing request that

followed, however, included allegations that the district should have identified G.A. as a child

with a disability as early as 2006.

The administrative law judge primarily ruled in favor of the district and held that the claims

concerning an alleged failure to identify G.A. as a child with a disability in 2006 were time-

barred by the two-year statute of limitations applicable to due process hearing complaints under

the Individuals with Disabilities Education Act. The administrative law judge reasoned that

because the parents filed their complaint on April 26, 2010, that any allegations predating April

26, 2008, were barred by the statute of limitations.

A federal district court affirmed the administrative decision but the Ninth Circuit reversed the

federal district court and held that an inquiry must be made as to when G.A.’s parents “knew or

should have known” about the conduct that formed the basis for their complaint. The Ninth

Circuit’s decision clarifies that the two-year statute of limitations is not applied robotically and

must take into consideration whether the parents knew or should have known about the conduct

forming the basis for their complaint before a determination is made to bar claims based on the

statute of limitations. For example, if a school district evaluates a child in 2006, convenes an IEP

team meeting that same year, and informs the parents that their child is not eligible for services,

the parents will likely be barred from attempting to challenge the 2006 IEP team decision in a

2010 hearing request because the parents were aware of the district’s determination of non-

eligibility in 2006 and therefore should have filed a hearing request no later than 2008. Avila v.

Spokane School District 81, 852 F.3d 936 (9th Cir. 2017).

Page 326: U.S. Court of Appeals for the Ninth Circuit Holds that School District’s

Unilateral Alteration of Individualized Education Program Constitutes a Denial of a Free

Appropriate Public Education and Failure to Respond to Parents’ Hearing Request

Violates the Individuals with Disabilities Education Act.

31

M.C. suffers from a genetic disease which renders him blind and M.C. also has deficits in all

academic areas. M.C.’s mother filed a due process hearing complaint against the Antelope Valley

Union High School District challenging the procedural and substantive appropriateness of the

individualized education programs developed by the district for M.C. Among the areas of dispute

was the specific offer of services from a teacher of the visually impaired (TVI services) and the

district’s failure to comply with the IDEA by issuing a written response to the administrative due

process hearing complaint.

The district’s individualized education program (IEP) – to which M.C.’s mother consented –

made 240 minutes per month of TVI services available to M.C. On the first day of the due

process hearing, however, the district took the position that the offer of 240 minutes per month of

TVI services was a clerical error and that the actual offer of TVI services was 240 minutes per

week. The district thereafter sought to defend the appropriateness of the IEP based on its position

that the IEP offer was for 240 minutes per week. The Ninth Circuit held that the district’s

unilateral revision of the amount of TVI services offered in the IEP denied M.C. a free

appropriate public education (FAPE) because it “vitiates the parents’ right to participate at every

step of the IEP drafting process.” The Ninth Circuit further held that if the district discovered that

the IEP did not reflect the understanding of the parties’ agreement, that the district was required

to notify M.C.’s mother of this discovery and seek her consent for any amendment.

After a school district receives a due process hearing request from parents, the district must issue

a written response to the hearing request no later than 10 calendar days after receipt of the request.

20 U.S.C. section 1415(c)(2)(B)(i). The District never issued a written response to M.C.’s due

process hearing complaint. The Ninth Circuit held that this failure violated the Individuals with

Disabilities Education Act and remanded the case to the federal district court to determine the

degree of prejudice that M.C. suffered to determine an award of appropriate compensation. The

Ninth Circuit also held that should a school district make this same mistake in the future that the

administrative law judge must not permit the hearing to proceed and instead order the district to

issue a response to the hearing request and shift the cost of any related delay in the hearing

process to the district. M.C. v. Antelope Valley Union School District, 858 F.3d 1189 (9th Cir.

2017).

Page 330: U.S. Court of Appeals for the Ninth Circuit Addresses Standard for School

Districts to Recover Attorneys’ Fees in Special Education Disputes.

A school district may recover attorneys’ fees and costs for frivolous claims pursued against the

district by a parent under the IDEA, the Americans with Disabilities Act (ADA), Section 504 the

Rehabilitation Act of 1973 (Section 504), and/or 42 U.S.C. Section 1983. The Ninth Circuit held

that a school district may recover attorneys’ fees against the attorneys of a parent and/or the

parent if any of the parent’s claims under these statutes are frivolous. The Ninth Circuit further

held that a claim is frivolous if the outcome of the claim is plainly obvious or the arguments

supporting the claim are completely without merit.

The case initiated with the school district filing a due process hearing request to defend its

assessment of a student in lieu of granting the parent’s request for the district to fund an

independent educational evaluation (IEE). An IEE is an evaluation of the child that is undertaken

by an individual not employed by the school district and typically sought as a second opinion

regarding the child’s needs by the parent. The IDEA requires a school district to, without

unnecessary delay, respond to a parent’s request for an IEE by either granting the IEE or filing a

hearing request to demonstrate the appropriateness of the district’s assessment of the student (34

C.F.R. § 300.502(b)(2)). The school district prevailed in the hearing by demonstrating that its

assessment of the child was appropriate.

32

The parent’s attorney thereafter sent a letter to the district offering to forego an appeal of the

hearing decision if the district funded an IEE for the child and paid attorneys’ fees and costs to

the parent’s attorney. The district’s attorney responded with a letter declining the settlement offer

and noting the district’s reservation of its right to seek sanctions in response to any such appeal

which the district viewed as frivolous in consideration of the hearing decision.

The parent thereafter appealed the administrative decision to federal district court and raised

claims against the district under the ADA, Section 504, and a claim for money damages under

Section 1983 – all predicated on allegations arising from or related to the request for the IEE,

subsequent hearing, and the district’s rejection of the settlement offer from the parent’s attorney.

Before the federal district court, the school district not only prevailed with the judge affirming the

underlying decision of the due process hearing but the judge invited the district to file a motion

for attorneys’ fees because the bases for the parent’s appeal were frivolous. The judge

subsequently awarded the district $94,602.34 in attorneys’ fees and $2,058.21 in costs against the

parent who thereafter appealed.

The Ninth Circuit reversed the district court’s award of attorneys’ fees to the school district under

the IDEA and Section 504 based on the determination that the parent’s claims under these statutes,

while described by the court as poorly plead and argued, did not rise to the level of being

frivolous because there was at least some basis for the claims. However, the Ninth Circuit

affirmed the determination of the district court that the parent’s claims under the ADA and

Section 1983 were frivolous because the claims under these statutes had no support under the law.

A retaliation claim under the ADA cannot be predicated on an alleged violation of the IDEA, and

California school districts cannot be sued for money damages under Section 1983. Because the

bulk of the litigation focused on the IDEA and Section 504, it is likely that on remand to the

federal district court that the ultimate award against the parent will be significantly less. C.W. v.

Capistrano Unified School District, 783 F.3d 1237 (9th Cir. 2015).

Page 330: U.S. Court of Appeals for the Ninth Circuit Holds that Parents Obtained More

Relief Through Due Process Hearing as Compared to School District’s Statutory Offer of

Settlement and that Parents Were Substantially Justified in Rejecting the Offer.

If a school district issues a settlement offer to a parent more than 10 days before the

commencement of a due process hearing and the parent rejects the offer and obtains less

favorable relief from the hearing decision, the parent may not be able to recover attorneys’ fees

generated subsequent to receipt of the offer (34 C.F.R. § 300.517(c)(2)). Because attorneys’ fees

liability often represents a school district’s greatest potential financial exposure in a due process

hearing, a well-crafted statutory offer of settlement can significantly reduce the district’s

exposure. However, this potential limitation on recovery of a parent’s attorneys’ fees does not

apply if a court determines that the parent was substantially justified in rejecting the school

district’s offer.

The Ninth Circuit analyzed and applied these aspects of the IDEA’s statutory offer of settlement

provision to hold that the parents of T.B., a child with brain damage and physical problems, not

only obtained more relief than the San Diego Unified School District’s settlement offer through

the due process hearing decision but that the parents were also substantially justified in rejecting

the district’s offer.

The parties participated in a due process hearing before the OAH in 2007. While the district

prevailed on most of the issues, the OAH held that T.B. prevailed on issues pertaining to his

33

health care plan and a transition plan designed to increase T.B.’s access to a school program –

findings that led to a determination that the district did not make a FAPE available to T.B. Both

parties appealed to federal district court, and T.B. raised additional claims against the district

under Section 504 and the ADA.

Prior to the commencement of the due process hearing the parties engaged in settlement

negotiations and the school district sent a settlement offer to the parents comprised of $150,000

per year in funding for T.B.’s educational program.

The federal district court affirmed the underlying OAH decision and held that the parents

established prevailing party status and an entitlement to reasonable attorneys’ fees based on their

partial success. In the ensuing litigation regarding attorneys’ fees, the school district argued that

the parents should not be permitted to recover any attorneys’ fees incurred after the date of the

settlement offer and the federal district court agreed.

In reversing the federal district court’s determination that the school district’s settlement offer cut

off the parents’ entitlement to attorneys’ fees generated after the date of the offer, the Ninth

Circuit first observed that comparison of a school district’s settlement offer versus the result of

the litigation must be made from the perspective of the parents. The Ninth Circuit thereafter

identified the following reasons as to why the settlement offer was not more favorable than the

relief obtained by the parents through the due process hearing: The settlement offer did not

clearly provide for reasonable attorneys’ fees and costs and required the parents to waive any

claimed entitlement to such fees and costs, while the parents preserved their claim for fees and

costs by proceeding to hearing; the settlement agreement terminated T.B.’s right to stay put under

his last agreed upon educational program and instead defined stay put as whatever placement the

school district offered at the end of the settlement period, while T.B.’s right to stay put was not

limited in this way while the parents proceeded to hearing; and the settlement offer required the

parents to coordinate and supervise T.B.’s educational program on their own with an amount of

money that would not have covered all of the necessary expenses and precluded T.B’s enrollment

in a public school for at least some period of time.

The Ninth Circuit’s decision emphasizes the importance of a school district’s carefully crafting its

settlement offer to mirror the type of relief the parents may obtain from the OAH without

including additional terms or conditions which a court may later determine to be less favorable

than the relief obtained from the OAH or justify the parents’ decision to reject the offer. T.B. v.

San Diego Unified School District, 806 F.3d 451 (9th Cir. 2015).

Page 331: U.S. Court of Appeals for the Ninth Circuit Holds that Parents’ Consent to

Implementation of the IEP Does Not Bar Claims for Damages Under Section 504 and the

ADA.

The Ninth Circuit addressed whether the parents’ consent to an IEP developed under the IDEA

operated as complete defense to claims for damages the parents were pursuing against the

Paradise Valley Unified School District under Section 504 and the ADA. The student, A.G., was

attending seventh grade in Vista Verde, a district school, in 2010 and enrolled in a program for

students with high IQs and one or more learning or behavioral disabilities. A.G.’s behaviors at

that time were aggressive, disruptive, and noncompliant. An IEP team meeting was held for A.G.

and the team proposed that A.G. attend the Roadrunner School, a non-public school primarily

designed for children with emotional disturbances. A.G.’s parents visited Roadrunner, agreed that

it would be an appropriate placement for A.G., and consented to implementation of the IEP.

34

On A.G.’s second day of attendance at the Roadrunner School she resisted entering school and

had to be physically escorted onto campus by staff and led to the “Intervention Room”. During

that incident, A.G. kicked a paraprofessional in the face. An off-duty police officer who worked

security at the school was summoned and arrested A.G. for aggravated assault and criminal

damage. A.G. was placed in handcuffs and detained until her mother arrived. A bit over a month

later the same off-duty officer was called to escort A.G. to the Intervention Room and A.G.

resisted, allegedly poking the officer in the eye and thereafter scratching the officer’s face and

neck. A.G. was handcuffed and arrested for aggravated assault and transported to the police

precinct.

A.G.’s parents thereafter filed an administrative due process hearing request against the school

district under the IDEA and filed a lawsuit in state court against the school district, the City of

Phoenix, and the officer who arrested A.G. alleging tort claims and violations of Section 504 and

the ADA. A.G. and the district reached a settlement resolving only the IDEA claims. A separate

settlement was thereafter executed between A.G. and the City of Phoenix and the officer which

resulted in dismissal of all claims against those defendants. A.G.’s parents, however, continued to

litigate the Section 504 and ADA claims against the district.

A.G.’s parents alleged that the district violated Section 504 by denying A.G. meaningful access to

public benefits. A.G. claimed that the placement at Roadrunner School was not, as Section 504

requires, designed to meet her needs as adequately as the needs of nonhandicapped persons are

met because she did not have access to elective classes available at Vista Verde and the

Roadrunner School was not the least restrictive environment. A.G.’s parents also alleged that the

district violated both Section 504 and the ADA by failing to provide her with an aide and

behavioral supports at Vista Verde which would have enabled her to remain there instead of

being placed at the Roadrunner School by the IEP team.

The federal district court granted summary judgment for the district and dismissed A.G.’s Section

504 claim by reasoning that her parents’ consent to the IEP placing A.G. at the Roadrunner

School waived this claim. The federal district court also dismissed A.G.’s ADA claim by holding

that there was no evidence to establish that the provision of additional behavioral supports would

have enabled A.G. to remain at Vista Verde. The federal district court also noted that there was

no evidence that A.G.’s parents had made a request to the district for A.G. to receive any

additional behavioral supports at Vista Verde. A federal district court grants summary judgment

when the court determines there is no genuine dispute as to any material fact and that the party

that filed the motion for summary judgment – the school district in this case – is entitled to

judgment as a matter of law.

A.G.’s parents appealed the federal district court’s summary judgment ruling, and the Ninth

Circuit reversed the federal district court. The Ninth Circuit observed that consent to an IEP does

not operate as a waiver of any rights held by A.G. under Section 504. This means that even

though A.G.’s parents were in agreement with the Roadrunner School and consented to A.G.

attending the school, their cooperation in the IEP process did not waive A.G.’s right to later claim

that the placement at the Roadrunner School violated her rights under Section 504. The Ninth

Circuit also noted that the plaintiff in an ADA case has no obligation to first request an

accommodation to preserve a failure to accommodate claim under the ADA. In reversing the

federal district court, the Ninth Circuit took no position on whether A.G. would ultimately prevail

on her claims but merely held that the federal district court’s dismissal of her claims under a

summary judgement ruling was not warranted. The case was remanded to the federal district

court for further fact finding.

35

This case highlights the levels of complexity which arise when plaintiffs seek redress under

Section 504 and the ADA for school district conduct which is taken under the IDEA. A.G. v.

Paradise Valley Unified School District, 815 F.3d 1195 (9th Cir. 2016).

Page 334: U.S. Court of Appeals for the Ninth Circuit Holds that School District’s

Compliance with IDEA for Deaf or Hard-of-Hearing Child Does Not Necessarily Establish

Compliance with the ADA.

The Ninth Circuit addressed whether a school district’s compliance with its obligations to a deaf

or hard-of-hearing child under IDEA also established compliance with its effective

communication obligations to that child under Title II of the ADA. The decision involved two

cases in which high school students with hearing disabilities requested that their respective school

districts provide Communication Access Realtime Transcription (CART) as a classroom

accommodation. CART is a word-for-word transcription service in which a trained stenographer

providers real-time captioning that appears on a computer monitor. In each case, the school

districts denied the request for CART but offered other accommodations. And in each case the

OAH and a federal district court determined that the accommodations made available by the

school districts satisfied the IDEA. The federal district courts also held that the school districts’

compliance with the IDEA foreclosed any alleged violations of the ADA based on the school

districts’ denials of the requests for CART.

Title II of the ADA includes a so-called “effective communications regulation” which requires

public entities to ensure that communications with individuals with disabilities are as effective as

communications with others and identifies CART as one type of auxiliary aide or service which

may be provided. On appeal before the Ninth Circuit, the plaintiffs argued that the effective

communications requirement of the ADA provides a substantively different legal standard with

which school districts must comply as compared to the IDEA and that a school district’s

compliance with the IDEA does not necessarily establish the school district’s compliance with the

effective communications regulation of Title II of the ADA. The Ninth Circuit agreed.

The Ninth Circuit carefully analyzed the relevant statutes and regulations of Title II of the ADA

and the IDEA and concluded that a court reviewing an alleged violation of the effective

communication regulation under Title II of ADA and IDEA must analyze the allegations

separately. It was on this narrow point that the Ninth Circuit reversed the decisions of the federal

district courts and remanded the cases for the courts to undertake a fact-specific analysis of

whether the school districts complied with the effective communication regulation of Title II of

ADA. The Ninth Circuit emphasized that a school district’s offer of accommodations for a

student with a hearing disability through an IEP may very well comply with both IDEA and Title

II of ADA but that a court’s analysis must separately review the school district’s actions under

each statute. K.M. v. Tustin Unified School District and K.H. v. Poway Unified School District,

725 F.3d 1088 (9th Cir. 2013).

CHAPTER 9

STUDENT DISCIPLINE

Pages 346-349: Education Code Amended to Limit Use of Suspension and Expulsion for

Disrupting School Activities and Willfully Defying School Personnel.

Education Code Section 48900 has been amended to prohibit the suspension or expulsion of

students enrolled in kindergarten through the third grade under 48900 (k), which authorizes

discipline for disrupting school activities or otherwise willfully defying the valid authority of

supervisors, teachers, administrators, school officials, or other school personnel engaged in the

performance of their duties. The amendment also prohibits the expulsion of any student

36

regardless of grade for a violation of 48900 (k). The amendment to section 48900 (k) does not

remove the authority of a teacher to suspend a student from class under Education Code Section

48910 as discussed on page 341.

Page 360: Definition of “Electronic Act” Extends to Communications Created or

Transmitted On or Off Campus for Purposes of Disciplining Cyberbullying.

Education Code Section 48900 (r) has been amended to state that an electronic act for purposes of

cyberbulling includes a communication originated created or transmitted on or off the school site.

Under an earlier drafting error the section had defined an “electronic act” as the creation and

transmission of a message of electronic posting. The amendment clarifies that creating or

transmitting a prohibited message is sufficient for discipline. Even with these amendments to

Section 48900 (r) school personnel should carefully evaluate any situation in which discipline is

contemplated for an electronic act to ensure that the discipline does not violate the free speech

rights of the offending student.

Pages 360-361: California Court of Appeal Upholds School’s Authority to Involuntarily

Transfer Student.

A California court of appeal has upheld the Clovis Unified School District’s involuntary transfer

of a student under Education Code Section 48432.5. The district suspended a high school student

for entering school grounds under the influence of a controlled substance and recommended his

involuntary transfer to a continuation school under Section 48432.5. The student was given

written notice of the recommendation and an opportunity to participate in a meeting to question

the recommendation. Later the district transferred the student to continuation high school. The

district made the findings required by Section 48432.5 including a determination that the

student’s conduct violated the Education Code, the student’s presence on campus posed a danger

to others or threatened to disrupt the education process, and other means of correction had failed

to bring about improvement in the student’s behavior.

The student challenged the involuntary transfer by suing the school district. The trial court upheld

the transfer and the student appealed. The student argued that Section 48432.5 mandates

exhaustion of all other means of correction before a student can be involuntarily transferred and

that judicial review of an involuntary transfer should use a heightened “independent judgment test”

instead of the “substantial evidence” standard applied by the trial court. The substantial evidence

standard affords more deference to a school district’s disciplinary decisions.

The court of appeal held that Section 48432.5 does not require exhaustion of all other means of

correction before imposition of an involuntary transfer and noted that several means of correction

had been utilized with the student consistent with the section. The judges further upheld the

substantial evidence standard of review utilized by the trial court and noted that while access to

public education is a fundamental interest, an involuntary transfer to a continuation school does

not affect this interest because the student is not being denied access to a public education. The

student still received a public education albeit at a different school site. Nathan G. v. Clovis

Unified School District, 169 Cal. Rptr.3d 588 (Cal. App. 5 Dist. 2014).

Pages 360-361: New Law Pertaining to Transfer of a Student Convicted of Violent Felony

or Misdemeanor.

In 2016 the legislature enacted a law pertaining to the transfer of a student convicted of a violent

felony or a misdemeanor under provisions of the Penal Code to another school in the district if

the student and the victim of the crime are enrolled in the same school. The new law, Section

48929 of the Education Code, requires the school district’s governing board to first adopt a policy

that gives the student and the student’s parent or guardian a right to request a meeting with the

37

principal or designee, requires prior attempts to resolve the conflict through such measures as

counseling, states whether the transfer decision is subject to periodic review pursuant to a

specified procedure, and describes the process by which the board approves or disapproves the

principal’s recommendation. Once approved, the policy is to be included in the district’s annual

notice to parents and guardians of their rights and responsibilities as set forth in Education Code

Section 48980.

Page 361: Student’s Dismissal from Charter School is not an Expulsion and Does Not

Invoke Education Code Procedures Applicable to Expulsions.

Scott B. was a student at Orange County High School of the Arts, a charter school. Scott

exhibited a knife at school and was subsequently suspended and dismissed from the school. Scott

sued the school and requested that the court reverse his dismissal.

As discussed on page 31, charter schools are subject to some but not all of the laws applicable to

traditional public schools. Of particular relevance to Scott’s lawsuit is the fact that Education

Code Section 48918, which provides for an expulsion hearing, does not apply to students in

charter schools. The court recognized that there is a difference between being expelled and being

dismissed and that Scott was merely dismissed and therefore not entitled to the procedural

protection of an expulsion hearing. The court observed that Scott was free to immediately enroll

in his traditional public school of residence upon being dismissed from the charter school. Such is

not the case for an expelled student, who must generally serve the term of expulsion before being

admitted to another school in accord with Section 48915.2 (a).

Scott nonetheless argued that his dismissal should be reversed because the school’s decision to

dismiss him was arbitrary and capricious. The court rejected Scott’s argument and noted that his

dismissal was justified because he brought a knife to school. Scott. B. v. Board of Trustees of

Orange County High School of the Arts, 158 Cal. Rptr.3d 173 (Cal. App. 4 Dist. 2014).

Page 378: Federal District Court Clarifies “Basis of Knowledge” for Determining When

Students without an Individualized Education Program Are Nonetheless Entitled to the

IDEA’s Disciplinary Protections.

The Anaheim Union High School District recommended a disciplinary removal of J.E., a student

with a Section 504 plan, but without an individualized education program under the IDEA. The

District disciplined J.E. as a general education student and did not convene a manifestation

determination meeting. J.E. challenged the removal before the Office of Administrative Hearings

(OAH) and argued that the district had a “basis of knowledge” based on J.E.’s behavior in class,

comments made during a Section 504 meeting, and information provided to the district by J.E.’s

mother. If a school district is deemed to have a “basis of knowledge” that a student is a child

with a disability, the district must adhere to the IDEA’s procedures, including convening a

manifestation determination meeting no later than ten school days after recommending a

disciplinary removal that constitutes a change of placement. One way in which it may be

determined that a district has a basis of knowledge that a student is a child with a disability is if

the teacher of the child or other personnel of the district express specific concerns about a pattern

of behavior demonstrated by the child directly to the director of special education or the agency

or to other supervisory personnel. OAH agreed with J.E. that the district had a basis of knowledge,

thereby violating the IDEA by not timely convening a manifestation determination meeting. The

district appealed the OAH decision to a federal district court.

On appeal, the district argued that the above-noted phrase “pattern of behavior” necessarily

implicates behavior related to disciplinary issues and should be interpreted to only apply when the

behavior is disciplinary in nature. In an unreported but informative decision, the court rejected the

38

district’s argument and held that a “pattern of behavior” is not limited to disciplinary issues and

may well include behavior which is associated with a potential disability but does not implicate

any discipline. In regard to J.E., the court held that sufficient information, including teacher

concerns, a reported psychiatric hospitalization, and a reported suicide attempt, was available to

the district and established a pattern of behavior such that the IDEA’s disciplinary procedures

applied to J.E. and the district’s recommendation for his disciplinary removal from school.

Anaheim Union High School District v. J.E., 2013 WL 2359651 (C.D. CA 2013) (unpublished).

CHAPTER 10

PUBLIC ACCESS, PRIVACY, AND STUDENT SEARCH AND SEIZURE

Page 396: Immigration Status Now Included in California Student Civil Liberties Act.

Education Code Section 200 and following sections now include immigration status as entitling

students to equal rights and opportunities in educational institutions of the state.

Page 397: U.S. Dept. of Education Issues New Guidance on Student Records.

School officials will find new information from the U.S. Department of Education especially

useful on how to provide information about student achievement while at the same time

protecting student privacy. The Department’s Privacy Technical Assistance Center’s (PTAC)

Transparency Best Practices for Schools and Districts can be found at http://ptac.ed.gov. For a

user-friendly site for parents, students, and school officials on the Family Educational Rights and

Privacy Act (FERPA), go to http://familypolicy.ed.gov.

Pages 400-401: Updates on Records for Foster and Homeless Children.

Education Code Section 49073 was amended in 2013 to restrict the release of directory

information regarding a homeless student as defined in the McKinney-Vento Homeless

Assistance Act (42 U.S.C. § 11434a(2)) without the written consent of a parent or of the student

when the student reaches eighteen or attends a postsecondary educational institution.

Education Code Section 49076 also was amended to permit a student aged 14 or over to have

access to his or her school records if the student is both homeless and unaccompanied as defined

in the McKinney-Vento Act. These records also can be released to an individual who completes

the Caregiver’s Authorization Affidavit as provided in Family Code Section 6552 and signs the

affidavit for the purpose of enrolling a minor in school.

Page 401: See Update for Pages 82-83 Above Regarding Gathering and Protecting Student

Social Media Data.

Page 409: More on Locker Searches.

What about conducting a search of another student’s locker where the student in question may

have stored illicit items? This arose in the Richmond High School in West Contra Costa Unified

School District when a female student alerted campus security officers that student T.H. shot

someone on a city bus the day before and she had heard that he had taken the weapon to school.

The campus security officers alerted the police. One of the campus security officers noted that

T.H. did not spend time at his locker but rather at one of the nearby lockers and had done so with

his girlfriend on the day of the shooting at a time when students were required to be in class or at

lunch. The campus security officers knew that students often store illicit items in other students’

lockers. When the campus security officers opened this particular locker, nothing was found.

They then searched other lockers in the area where T.H. had been seen. In one of these lockers

assigned to student J.D. they found the butt of a sawed-off shotgun along with papers containing

T.H.’s name.

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When police officers questioned J.D. after reading him his Miranda rights, J.D. admitted the

weapon belonged to him. In a delinquency proceeding, J.D. challenged the search of his locker as

a violation of his privacy rights. The appellate court rejected the argument, noting that student

privacy concerns need to be balanced against the need for campus safety. Here there was

reasonable cause for school officials to search J.D.’s locker, knowing that students often stored

illicit items in lockers assigned to other students and that T.H. had frequented the locker area

where the weapon was found. In re J.D., 170 Cal. App.3d 464 (Cal. App.1 Dist. 2014).

Page 410: School Administrator’s Search of a California Student’s Cell Phone Upheld.

An assistant principal at Antioch High School became concerned about suspicious behavior of

two students who were not in class, one of whom was suspected of bringing a firearm to school

but then discarding it in a campus trash can. The two students were taken to two adjoining rooms

in the vice principals’ office for questioning. Meanwhile, the firearm was found and taken to the

office. Another student was observed walking back and forth by the office. The administrators

were concerned, as they did not yet know who brought the firearm to school. The student was

directed to enter the office but did not do so. He was escorted back to the office. The

administrators noticed that he was fidgety and reaching down into his pocket. Concerned that he

had a concealed weapon in his clothing and was resisting their checking, they took him to the

ground. The cell phone was found. Concerned that this student was communicating with one of

the other two students detained in the office about the firearm since they knew each other and had

argued earlier that morning, one of the administrators removed the phone from the student’s

pocket to keep him from manipulating it. The student had turned off the cell phone. So the

assistant principal plugged it into a USB cable, which brought it back on line. The assistant

principal viewed the student’s collection of text messages and photographs showing him holding

the firearm that later was recovered from the trash can.

When questioned about his potential involvement in the gun incident by a second vice principal,

the student became irate and screamed profanities. According to this assistant principal, he said

“Those are my photos. You can’t do that.” After becoming belligerent, the student was subdued

by campus supervisors. The Antioch police were contacted. When the student contested the cell

phone search at a juvenile court hearing as a violation of his Fourth Amendment rights, the judge

rejected it and declared the juvenile a ward of the state. The California appellate court concurred

with the ruling, noting that the discovery of a firearm and its magazine cartridge on school

property coupled with the student’s connection with the other two students in the office fell

within the reasonable grounds for a student search. “This is particularly true,” wrote the judges,

“when one considers the gravity of the situation that initially gave rise to the search – the

discovery of a firearm and magazine on school grounds.” In re Rafael C., 200 Cal. Rptr3d 305

(Cal. App. 1 Dist. 2016).

CHAPTER 11

RACE AND GENDER DISCRIMINATION

Page 439: Single Gender Academies Pilot Program Repealed Effective January 1, 2016.

Page 439: New Law Allows Single Gender Schools and Classes.

In 2017, the legislature enacted Education Code Section 232 and following sections allowing

school districts with an average daily attendance of 400,000 or more students as of July 1, 2017

and charter schools authorized by school districts of this size to maintain single gender schools or

classes under certain conditions for the purpose of determining their value. Among the numerous

conditions is compliance with Title IX, enrollment of no more than 700 students in a single

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gender school, enrollment of no more than 1,000 students in a coeducational school maintaining

single gender classes, voluntary enrollment, and conducting evaluations at least every two years.

Among other things, the evaluations are to include the impact of the single gender school or class

on students who identify as LGBTQ or gender nonconforming. Given the detailed nature of these

provisions, they should be viewed directly by going to www.cde.ca.gov and clicking on Laws and

Regulations under the “Resources” heading. These code provisions are effective only until

January 1, 2025.

Pages 439-441: New Law Requires Internet Posting of Title IX Information.

Effective on or before July 1, 2017, all California public and charter schools as well as private

schools receiving federal funds are required to post on their website specific information about

Title IX. Included is the name of the Title IX coordinator, rights provided by Title IX,

responsibilities of the school under Title IX, how to file a complaint and how it will be

investigated, and a link to the U.S. Department of Education Office for Civil Rights website

(Educ. Code § 221.61). A public school that does not have a website is to have the information

posted on the school district or county office of education website.

Page 440: Ninth Circuit Affirms Ollier Decision; Adopts Title IX Tests.

In a lengthy decision that examines the Sweetwater case in detail, the U.S. Court of Appeals for

the Ninth Circuit affirmed the federal district court decision. In doing so, the appeals court

adopted the three-part test set forth by the Office of Civil Rights in 1979 to determine compliance

with Title IX in the context of athletics: (1) whether participation opportunities for male and

female students are provided in numbers substantially proportionate to their respective

enrollments, or (2) whether the institution can show a history and continuing practice of athletic

program expansion demonstrably responsive to the developing interest and abilities of the number

of the underrepresented sex, or (3) whether it can be demonstrated that the interest and abilities

of the underrepresented sex in athletics have been fully and effectively accommodated by the

present program when the institution cannot show a continuing practice of athletic program

expansion. Ollier v. Sweetwater Union High School District, 768 F.3d 843 (9th Cir. 2014).

Page 441: Transgender Students Now Allowed to Participate in Programs and Use Facilities

Consistent with their Gender Identity.

California’s Sex Equity in Education Act has been amended to allow students to participate in

school programs and activities and to use school facilities consistent with how they view their

gender regardless of the gender listed on school records. Thus, for example, transgender students

can use restroom facilities that are consistent with how they view their gender. Programs and

activities include athletic teams and competitions (Educ. Code § 221.5). See also the update on p.

396 above regarding student immigration status.

Pages 441-442: Reporting of Gender Data in Competitive Athletics Required.

Traditional public and charter elementary and secondary schools participating in competitive

athletics are now required under the Sex Equity in Education Act to report at the end of the year

student athletic participation data by gender (Educ. Code § 221.9). These data encompass the

enrollment of the school by gender, the number of boys and girls who participate in athletics, and

the number of boys’ and girls’ teams classified by sport and by competitive level. The data are to

be posted for at least three years on the school’s website or if no website on the district’s or

charter operator’s website. The purpose is to call attention to gender gaps as the first step in

addressing them for the purpose of increasing the benefits of competitive athletics for female

students.

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Page 446: Limitations on Removing Survey Questions Pertaining to Sexual Orientation and

Identity.

Section 51514 was added to the Education Code in 2017 prohibiting a local educational agency

that administers a voluntary survey already including questions pertaining to sexual orientation

and gender identity from removing those questions. The reason is to collect accurate data to

effectively implement and deliver critical state services and programs.

Page 446: U.S. Department of Education Confirms Application of Title IX to Sexual

Orientation.

As noted on this page, a federal district court in California ruled some years ago that Title IX

encompasses same-sex harassment. In April 2014 the U.S. Department of Education issued a

Dear Colleague Letter stating that Title IX protects all students at recipient institutions from sex

discrimination, including sexual violence: “Any student can experience sexual violence: from

elementary to professional school students; male and female students; straight, gay, lesbian,

bisexual and transgender students; part-time and full-time students; students with and without

disabilities; and students of different races and national origins.”

Page 447: Court Allows Parent to Sue School District His Son Previously Attended Where

He was Subjected to Discrimination and Bullying.

Because there is a manifest public interest in enforcing anti-discrimination and anti-bullying laws

in public schools, a California court of appeal has overruled a trial court decision that the parent

of a special needs child who no longer attended the public school where the bullying had occurred

could not sue the district for damages. As a citizen and taxpayer, the parent has standing to seek

enforcement of these laws. Hector F. v. El Centro Elementary School District, 173 Cal. Rptr.3d

413 (Cal. App. 4 Dist. 2014).

CHAPTER 12

LEGAL LIABILITY

Page 464: More Protection for Student Athletes.

In 2014 the legislature added Section 35179.5 to the Education Code restricting school districts,

charter schools, and private schools from conducting more than two full-contact practices per

week for high school or middle school football teams during the preseason or regular season. A

practice includes a team camp session. The full-contact portion of a practice is not to exceed 90

minutes in a day. No full-contact practice is to be held during the off-season, meaning a period

extending from the end of the regular season until 30 days before the commencement of the next

regular season. The California Interscholastic Federation (CIF) is urged to develop rules to

implement these provisions.

Education Code Section 49475 also was amended to provide that if a licensed health care

provider – meaning one trained in concussion management – determines that a student athlete has

sustained a concussion or head injury, the athlete is to complete a graduated return-to-play

protocol of no less than seven days under supervision of the provider. The CIF is urged to work

with the American Academy of Pediatrics and the American Medical Society for Sports Medicine

to develop implementing procedures.

Starting on July 1, 2017, the Eric Paredes Sudden Cardiac Arrest Prevention Act requires the

State Department of Education (SDE) to post on its website information and training information

about sudden cardiac arrest and encourages all schools to do the same. In addition, each year

before a student participates in an athletic activity whether governed by the California

Interscholastic Federation or not, the public or private school that conducts the athletic activity

42

must have the parent or guardian of participating students acknowledge receipt of the information

posted on the SDE’s website about sudden cardiac arrest symptoms and warning signs. Athletic

personnel are to remove any student who passes out or faints while participating in or

immediately following an athletic activity. The student is not to be allowed to participate until

cleared to return in writing by a physician and surgeon or a nurse practitioner or physician

assistant knowledgeable in this area. In addition, coaches are to complete the sudden cardiac

arrest training course posted on the SDE website and to retake it every two years. For details, see

Education Code Section 33479 and following sections.

Page 464: More on Assumption of Risk.

While students must assume some degree of assumption of risk when they participate in

dangerous athletic activities as noted in the Lilley decision discussed on this page, that

assumption does not eliminate the general requirement of providing student supervision. This

point was made by a California court of appeal in a nonathletic case involving a middle school

student who was seriously injured when forced to perform a flip by another student while

engaging in break dancing in an unsupervised classroom. The court noted testimony that teachers

were not to leave classrooms unsupervised and that students had been told not to perform flips.

The court also noted testimony from the teacher that he did not think it was necessary to tell the

school administration that he had opened his classroom for early morning physical activity to help

them prepare for a talent show and had them sign a release form [not clear what this stated], was

unaware of the no-flipping directive, and left his classroom only briefly. Given that the injury to

the student could have been caused by failure to enforce the no flipping rule, lack of informing

teachers about it, and/or negligent classroom supervision, the appeals court returned the case to

the trial court. Jimenez v. Roseville City School District, 202 Cal. Rptr.3d 536 (Cal. App. 3 Dist.

2016). The lesson is for school administrators to make sure that teachers are fully aware when

new student rules are made and that students are not left in unsupervised classrooms where

physical activity can spiral into bodily harm.

Page 477: School Counselor Not Immune from Liability under the Tort Claims Act for

Allegedly Giving Suspected Child Abuse Report to Students’ Father.

Two male high school students in the Grossmont Union High School District reported to a school

counselor that they were being verbally and physically abused by their mother. Some years before,

the mother had been given sole legal and physical custody of the two boys. Later, she had

allowed the father to move back into the home so he could take care of the sons while she was at

work. In accord with the Child Abuse and Neglect Reporting Act (CANRA), the school counselor

as a mandated reporter submitted a child abuse report to Child Welfare Services and to the

school’s resources officer based on what the boys had told her. According to the counselor, she

was advised to give a copy of the child abuse report to the boys’ father, who had transported the

boys to school, and to allow the father to take the boys to the sheriff’s department. The father

instead took the boys and the report to the courthouse where he sought to be awarded custody of

his sons. The family court later rejected his claim, affirming the mother’s right to sole legal and

physical custody. Subsequently, the mother sued both the school counselor and the school district

under the Tort Claims Act, alleging a violation of her right to privacy under CANRA when the

counselor gave the boys’ father a copy of the child abuse report. The trial court dismissed the

lawsuit, and the mother appealed.

The court of appeal overruled the trial court, pointing out that in the interest of privacy protection,

the CANRA expressly prohibits a mandatory reporter from disclosing a suspected child abuse

report to someone like the boys’ father who is not one of the individuals or entities identified in

Section 11167.5 of the Penal Code. Thus, the counselor was not exercising discretion under

Section 820.2 of the Tort Claims Act when she released the suspected child abuse report to the

43

boys’ father. The appellate court also ruled that the trial court’s granting summary judgment to

the school district was improper because the district could be vicariously liable for the

counselor’s conduct under Section 815.2 of the Tort Claims Act. Cuff v. Grossmont Union High

School District, 164 Cal. Rpt.3d 487 (Cal. App. 4 Dist. 2013).

Page 482: Belanger Decision Affirmed. School Districts and County Offices of Education

Remain Immune from Lawsuits under Section 1983.

The Ninth Circuit has ruled that neither the Local Control Funding Formula (LCFF) nor the Local

Control and Accountability Plan (LCAP) that changed the way public schools and county offices

of education are funded (see the discussion above in the update for Chapter 3). Thus Eleventh

Amendment immunity from lawsuits under 42 U.S.C. Section 1983 continues. Sato v. Orange

County Dept. of Education, 861 F.3d 923 (9th Cir. 2017).