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Sloan R. Simmons

Partner | Sacramento

Attorney Insights

ssimmons@lozanosmith.com
Tel: 916.329.7433
Fax: 916.329.9050
Vcard   | Bio

Overview

Sloan R. Simmons is a Partner in Lozano Smith's Sacramento office and co-chair of the firm's Litigation Practice Group. His areas of expertise are civil rights litigation, law and motion practice, and appeals, as well as student issues. Mr. Simmons specializes in student issues such as student discipline, student free speech, fees, student records, the Equal Access Act, and other constitutional and statutory rights and requirements.

Presenter Experience

Mr. Simmons has presented on the intersection of student free speech and other constitutional and statutory rights, discipline, and the technology and several other issues before the California School Boards Association (CSBA), Association of California School Administrators (ACSA), California Small School Districts' Association (SSDA), California Association of Supervisors of Child Welfare and Attendance (CASCWA), and the California County Superintendents Educational Services Association (CCSESA).

Articles

Mr. Simmons' article "Disciplining Students for E-Communications" was published in the Daily Journal in January 2010. His February and March 2012 articles "What's Next in ACLU's Student Fee Case" and "Cancer Awareness Slogans Pose Tough Challenges for Schools," were also published in the Daily Journal.

Education

Mr. Simmons earned his J.D. from the University of California, Davis, School of Law, and his B.A. (summa cum laude), with Honors in the Major and Honors in General Education, from California State University, Chico.

While attending law school he received the honor of Outstanding Oral Advocate, was selected as a member of the Order of the Barristers, and as a member of the University of California, Davis, National Moot Court Team. He also held the position of Senior Articles Editor for the 2002-2003 and co-chaired the law school's Advocates for the Rights of Children student organization. As an undergraduate, Mr. Simmons presented his Honors Thesis, "Justice William J. Brennan Jr.: Bringing Justice to Education" at the 2001 Western Regional Honors Conference.

Federal Court Upholds Texas School Board’s Practice of Student Invocations at School Board Meetings

By: Sloan SimmonsKyle Raney-

June 2017 Number 29 A federal appeals court recently upheld a Texas school district's practice of permitting students to deliver a religious invocation at the beginning of governing board meetings. ( American Humanist Association et al v. Birdville Independent School District et al (5th Cir. 2017, Nos. 15-11067, 16-11220) ___ F.3d ___ (Birdville). While noteworthy, the opinion is not binding on public agencies in California, where a separate ruling on religious invocations at governing bo...

2017 Annual Notice of Parental Rights and Responsibilities Updates

By: Sloan Simmons-

April 2017 Number 21 California school districts and county offices of education are required annually, at the beginning of each school year, to provide written notice of parental rights and responsibilities. Lozano Smith continuously tracks legislation impacting these notices. The following summarizes changes inCalifornia law requiring updates for the 2017-2018 annual notice. Excused Absence to Attend Student's Naturalization Ceremony Assembly Bill (AB) 1593 amended Education Code se...

Ninth Circuit Reverses Summary Judgment, Finding Employer's Response to Discrimination and Harassment Complaints Inadequate

By: Sloan SimmonsMeera Bhatt-

April 2017 Number 16 In Reynaga v. Roseburg Forest Products (9th Cir. 2017) 847 F.3d 678, the Ninth Circuit Court of Appeals recently delivered an important opinion regarding public entity employers and what is required for an appropriate response to an employee's complaint of harassment or hostile work environment. In doing so, the Ninth Circuit emphasized that employer liability may exist for negligence, if the employer fails to take effective remedial action in response to such an empl...

Ninth Circuit Reverses Summary Judgment, Finding Employer's Response to Discrimination and Harassment Complaints Inadequate

By: Sloan SimmonsMeera Bhatt-

April 2017 Number 16 In Reynaga v. Roseburg Forest Products (9th Cir. 2017) 847 F.3d 678, the Ninth Circuit Court of Appeals recently delivered an important opinion regarding public entity employers and what is required for an appropriate response to an employee's complaint of harassment or hostile work environment. In doing so, the Ninth Circuit emphasized that employer liability may exist for negligence, if the employer fails to take effective remedial action in response to such an employe...

New Federal Guidance Regarding Transgender Students Will Not Impact California Schools

By: Sloan Simmons-

February 2017 Number 9 Under new leadership following the 2016 presidential election, the United States Department of Justice (DOJ) and Department of Education (DOE) issued a joint "Dear Colleague" letter on February 22, 2017 withdrawing the Obama administration's May 2016 letter and guidance regarding transgender students and sex-based discrimination under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et. seq.) and Title IX's regulations. The prior letter and guid...

Schools and Immigration Enforcement

By: Sloan SimmonsKristy Boyes-

January 2017 Number 4 In the wake of the recent presidential election, changes in immigration law and enforcement may be on the horizon. Some California K-12 school district and community college district officials have voiced concerns over the potential for increased enforcement of existing immigration laws, due in part to the president-elect's campaign statements that he would triple the number of enforcement agents at Immigration and Customs Enforcement (ICE) and deport 2 million un...

Student Walkouts: Free Speech Rights vs. Truancy Rules

By: Sloan SimmonsThomas Manniello-

November 2016 Following this week's national election, school officials around the state have been faced with threatened or actual student walkouts. Generally speaking, California law and the United States Constitution prohibit school officials from limiting student speech and expression on school grounds unless it does or is reasonably forecast to substantially disrupt the educational environment, or is otherwise lewd, vulgar, obscene, or plainly offensive. This raises the question of whe...

California Court Rules that Charter Schools Generally Cannot Locate Outside of Their Authorizing School District’s Boundaries

By: Megan MacySloan SimmonsDevon LincolnEdward Sklar-

October 2016 Number 79 In a case watched closely by the charter school community - including school districts, county offices of education and charter operators - California's Third District Court of Appeal has issued an opinion which holds that the geographic and site limitations of the Charter Schools Act (Ed. Code, § 47600 et seq.) are applicable to all charter schools, including "nonclassroom-based" programs. (Anderson Union High School District v. Shasta Secondary Home School (O...

U.S. Department of Education Issues Guidance on Implementing ESSA's New Provisions Regarding Homeless Students

By: Sloan SimmonsJoshua Whiteside-

October 2016 Number 72 On July 27, 2016, the United States Department of Education (DOE) issued non-regulatory guidance to the nation's schools addressing changes to the Elementary and Secondary Education Act of 1965 as implemented by the Every Student Succeeds Act of 2015 (ESSA) to the definition of homeless students under the McKinney-Vento Act (42 U.S.C. § 11301 et seq.). The guidance addresses state and local requirements for educating homeless youth, including local educational ...

School's Discipline of Student for Off-Campus Sexual Harassment Proper under First Amendment

By: Sloan SimmonsKristy Boyes-

September 2016 Number 65 In C.R. v. Eugene School District 4J (9th Cir., Sept. 1, 2016) __ F.3d__ [2016 U.S.App. LEXIS 16202], the Ninth Circuit Court of Appeals considered an issue of first impression: Whether a school may discipline a student for off-campus sexual harassment without violating the student's First Amendment free speech rights. Based on the facts, the Ninth Circuit held that disciplining a student for off-campus sexual harassment of fellow students did not violate the stud...

The Satanic Temple Seeks Access to Public Elementary Schools Nationwide

By: Sloan SimmonsLee Burdick-

September 2016 Number 57 A secular organization called The Satanic Temple has announced it will be seeking access to public elementary school facilities nationwide to offer its "Educatin' with Satan" after-school program. The group stated that it intends to offer a scientific after-school club to balance the religious viewpoint presented by other programs such as the "Good News Club" run by the Child Evangelism Fellowship. Based upon the United States Supreme Court's 2001 opinion in Good Ne...

U.S. District Court in Texas Issues Preliminary Injunction Enjoining Federal Departments of Justice and Education’s Joint Guidance on Transgender Student Rights in Schools under Title IX

By: Sloan SimmonsAimee Perry-

August 2016 Number 53 A United States District Court in Texas has issued a preliminary injunction barring the United States Department Justice (DOJ), Department of Education (DOE) and other federal agencies from enforcing the DOJ and DOE's May 13, 2016 joint guidance regarding the rights of transgender students in schools under Title IX of the Education Amendments of 1972 (Title IX) and Title IX's regulations (Joint Guidance). (See 2016 Client News Brief No. 31.) (State of Texas v. United...

U.S. Supreme Court Reaffirms "Strict Scrutiny" Standard Governing the Use of Race in Public College and University Admissions

By: Sloan Simmons-

August 2016 Number 49 In Fisher v. University of Texas at Austin (June 23, 2016) No. 14-981 579 U.S. __ [2016 U.S. LEXIS 4059], the United States Supreme Court reiterated its 2013 holding that public higher education institutions may only consider an applicant's race in deciding whether to admit that student if the method by which race is considered is narrowly tailored to meet a compelling state interest (this standards is known as "strict scrutiny"). While courts are entitled to take at...

Keeping Pace with Developments in Student Gender Identity Rights

By: Sloan SimmonsMegan Macy-

In May 2016, the U.S. Department of Education's Office for Civil Rights (OCR) and U.S. Department of Justice's (DOJ) issued joint guidance regarding transgender student rights, sparking nationwide media coverage and a surge in lawsuits related to the guidance, as if it was the first time this issue had ever been breached on a local, state or federal level. To the contrary, and especially in California, the statutory framework regarding transgender student rights have been in place for several...

Governor Signs Bill Raising Legal Age to Buy Tobacco Products to 21

By: Sloan SimmonsAimee Perry-

July 2016 Number 45 Governor Jerry Brown recently approved Senate Bill 7 (SB 7), increasing the age to buy tobacco for smoking, dipping, chewing and "vaping" from age 18 to age 21. The law became effective June 4, 2016. The new law makes California the second state, besides Hawaii, to increase the age to buy tobacco from 18 to 21. SB 7 amends provisions of the Business and Professions Code and the Penal Code that govern the sale, possession and use of tobacco products. The bill proh...

California's Constitution Does Not Mandate a Specific Quality Level of Education or Minimum K-12 Education Funding

By: Sloan Simmons-

June 2016 Number 34 In Campaign for Quality Education v. State of California (2016) 246 Cal.App.4th 896 (Campaign), the California Court of Appeal held that the “free school guarantee” enshrined in California’s Constitution does not require the Legislature to provide a set minimum quality of education, or level of funding, for public schools. In Campaign, student advocacy groups and non-profit organizations representing low-income and minority families filed suit in 2010 in hope...

Amidst Nationwide Media Coverage, U.S. Departments of Education and Justice Issue Joint Guidance Regarding Transgender Student Rights in Schools

By: Sloan SimmonsThomas Manniello-

May 2016 Number 31 On May 13, the United States Departments of Education and Justice issued joint guidance to the nation's schools regarding the Departments' interpretation of transgender students' rights under Title IX of the Education Amendments of 1972 (20 U.S.C. § 1681 et seq.) and Title IX's implementing regulations. The joint guidance addresses various aspects of transgender students' rights under Title IX, including their rights to use school facilities and participate in ath...

Teacher Complaints About School District's Special Education Program Are Not Protected by First Amendment

By: Sloan Simmons-

April 2016 Number 27 Are a special education teacher's complaints about her district's special education program constitutionally protected speech? In Coomes v. Edmonds School District No. 15 (2016) 2016 U.S. App. Lexis 5372, the United States Ninth Circuit Court of Appeals held that a public school teacher's complaints to her supervisors and parents regarding her employer school district's special education program were not protected by the First Amendment. Plaintiff Tristan Coomes wo...

California United States District Court finds that Prayers, Bible Readings, and Proselytizing at School Board Meetings Violated the U.S. Constitution

By: Sloan Simmons-

April 2016 Number 20 A United States District Court in California recently concluded that a school board unconstitutionally endorsed religion by reciting prayers, conducting Bible readings, proselytizing at board meetings and adopting a resolution allowing religious prayer at board meetings. (Freedom from Religion Found., Inc. v. Chino Valley Unified School Dist. Bd. of Ed. (C.D. Cal. Feb. 18, 2016) Case No. 5:14-cv-02336-JGB-DTB, 2016 U.S. Dist. Lexis 19995.) The Establishment Clause of ...

California Supreme Court Holds Attorney-Client Privilege Not Waived by Public Agency's Accidental Disclosure of Privileged Communications in Response to a Public Records Act Request

By: Sloan SimmonsSteve Ngo-

March 2016 Number 14 If a public agency accidentally discloses privileged attorney-client information when it responds to a Public Records Act request, does the agency waive the attorney-client privilege? The answer is no, according to a California Supreme Court ruling issued today, March 17, 2016. The decision significantly impacts how public agencies throughout the state handle Public Records Act requests. In Ardon v. City of Los Angeles, the California Supreme Court resolved conflic...

Legal Challenges, LCFF and LCAP: 4 Factors to Keep in Mind When Navigating The New Framework

By: Sean MickSloan Simmons-

With interest groups scrutinizing school district Local Control Accountability Plans (LCAP) and at least a lawsuit pending against the Los Angeles Unified School District and Los Angeles County Office of Education over LAUSD's LCAP, school board members and school officials are left to wonder if their LCAPs-required under the State's recently enacted apportionment and funding plan known as the Local Control Funding Formula or "LCFF"-leaves them vulnerable to litigation or other challenges. As...

Fit to Defend: A Primer on the Physical Education Instructional Minutes Litigation

By: Sloan SimmonsSteve NgoAnne Collins-

A series of lawsuits against school districts throughout California caught the attention of the State Legislature in 2015, prompting changes in the law designed to keep administrators and teachers out of the courthouse regarding physical education ("P.E.") instructional minutes ("P.E. minutes"). The law, AB 1391, was an urgency measure that took effect as soon as Governor Brown signed the legislation in October 2015. Despite AB 1391, it appears that there are still attorneys and members of th...

Legislature Revises and Updates the Education Code Relating to Sexual Health and HIV/AIDS Prevention Education in Schools

By: Aimee PerrySloan Simmons-

January 2016 Number 1 Effective January 1, 2016, two bills relating to sexual health and human immunodeficiency virus (HIV) and acquired immunodeficiency syndrome (AIDS) prevention education will take effect, which will require school districts to review their existing curriculum and instruction for compliance. Assembly Bill (AB) 329 amended, renumbered and repealed various Education Code provisions as they relate to sexual health and HIV education. Senate Bill (SB) 695 added provisions to t...

President Signs Into Law "Every Student Succeeds Act" Overhauling "No Child Left Behind"

By: Dulcinea GranthamSloan Simmons-

December 2015 Number 80 President Obama has signed into law the "Every Student Succeeds Act" (ESSA), a sweeping overhaul of "No Child Left Behind" (NCLB) that eases the burden of the NCLB's testing and reporting requirements and restores local autonomy to schools and districts by making states responsible for students' academic achievement. The ESSA reaffirms the notion that local leadership is best for local schools by overwhelmingly shifting authority from the federal government to the ...

Affordable Care Act Enrollment Information Update

By: Sloan Simmons-

October 2015 Number 57 As reported previously (See Client News Brief No. 38, July 2015), starting this school year, school districts must provide health care coverage options and enrollment assistance information to new student enrollees pursuant to Assembly Bill (AB) 2706. This requirement will be in effect through the 2017-2018 school year. The California Department of Education (CDE), in partnership with Covered California and All In - Health Care for All Families, provided the followi...

California Court of Appeal Holds Attorney-Client Privilege Not Waived by Public Agency's Accidental Disclosure of Privileged Communications in Response to a Public Records Act Request

By: Sloan SimmonsSteve Ngo-

August 2015 Number 42 In a decision impacting public agencies across the state, the California Court of Appeal held that a school district did not waive its attorney-client privilege when it accidentally revealed attorney-client communications in response to a request under the Public Records Act. In Newark Unified School District v. Superior Court (July 31, 2015) 2015 Cal.App.Lexis 671 (Newark), the Court of Appeal reversed the trial court, which previously ruled that the school district...

Reminder: New and Amended State Laws Regarding County Community School and Expulsion Placements in Full Effect for the 2015-2016 School Year

By: Sloan SimmonsKarin Anderson-

August 2015 Number 40 Looking ahead to the 2015-2016 school year, school districts and county offices of education should ensure for full compliance with Senate Bill (SB) 1111, effective January 1, 2015. SB 1111 repealed certain Education Code provisions, while revising and adding others regarding the categories of students and the conditions under which they may be enrolled in a county community school, as well as certain student placements relative to the expulsion process. In Califo...

California Law Now Requires School Districts to Provide Affordable Care Act Enrollment Information to Parents and Guardians of New Students

By: Sloan Simmons-

July 2015 Number 38 Starting in the 2015-2016 school year, Assembly Bill (AB) 2706 requires school districts to provide information about health care coverage options and enrollment assistance to the parents and legal guardians of newly enrolled kindergarten and transfer students. The requirements of AB 2706, which added Education Code section 49452.9, apply to the 2015-2016 through 2017-2018 school years. The federal Patient Protection and Affordable Care Act (PPACA) requires that ind...

Fees for Adult Education Classes in English and Citizenship are Impermissible as of July 2, 2015

By: Sloan Simmons-

July 2015 Number 34 On July 2, 2015, school districts will no longer be permitted to charge a fee for adult education classes in English and citizenship. As previously reported by Lozano Smith, Assembly Bill (AB) 189 amended Education Code section 52612 to allow school districts to charge a fee for adult education classes in English and citizenship from January 1, 2012 until July 1, 2015. (Please see Client News Brief No. 56, October 2011.) Such fees were allowed to prevent these classes ...

United States Supreme Court Declines to Review American Flag T-Shirt and Student Free Speech Case

By: Sloan SimmonsKarin Anderson-

April 2015 Number 22 The United States Supreme Court recently issued an order declining to review the Ninth Circuit Court of Appeals' decision in Dariano v. Morgan Hill Unified School District (March 30, 2015) 2015 U.S. Lexis 2190. As previously reported by Lozano Smith (See Client News Brief No. 15, March 2014), in Dariano, the Ninth Circuit held that school administrators did not violate students' constitutional rights to free speech when they prohibited students from wearing American f...

Student Plaintiffs Seek Review by the United States Supreme Court in American Flag T-Shirt and Student Free Speech Case

By: Sloan SimmonsThomas Manniello-

February 2015 Number 7 As reported by Lozano Smith in March 2014, in February of last year the U.S. Ninth Circuit Court of Appeals issued its original ruling in Dariano v. Morgan Hill Unified School District, a case that posed the question of whether an administrator violated students' constitutional rights by requiring them to remove American flag clothing on Cinco de Mayo. In its original opinion, the Ninth Circuit held that the administrators did not violate the students' free speech...

OCR Issues New Guidance Regarding Obligations to Provide Equal Access to Educational Resources for All Students

By: Sloan Simmons-

November 2014 Number 90 The U.S. Department of Education's Office for Civil Rights (OCR) issued a "Dear Colleague" letter, on October 1, 2014, which provides guidance to school districts on allocating scarce financial resources without discriminating against students on the basis of race, color, or national origin. While "Dear Colleague" letters are non-binding, they telegraph details regarding expectations and enforcement of federal laws by the OCR. Title VI of the Federal Civil Right...

New Law Authorizes Referral of Bullying Victims and Witnesses to School Counselor

By: Sloan SimmonsJennifer Ulbrich-

September 2014 Number 56 Governor Brown recently signed into law Assembly Bill (AB) 1455, which authorizes a superintendent or principal to refer bullying victims and witnesses to various school support services. The law will apply to acts of bullying committed on or after January 1, 2015. The Education Code currently allows the superintendent and principal to use alternatives to suspension and expulsion for students who commit various acts of misconduct, including bullying. These alte...

New Law Limits Full-Contact Football Practices and Adds Requirements in Order for Student-Athletes With Head Injuries to Return to Sport Participation

By: Sloan Simmons-

July 2014Number 44Governor Brown recently signed into law Assembly Bill (AB) 2127, which limits the duration and amount of "full-contact" practices for middle school a high school football teams and adds a "graduated return-to play protocol" for student-athletes that have sustained a concussion or head injury. These changes will take effect on January 1, 2015. AB 2127 adds Education Code section 35179.5, which will prohibit high school and middle school football teams from conducting more ...

First Amendment May Protect Public Employees' Testimony

By: Sloan Simmons-

July 2014 Number 38 Under Garcetti v. Ceballos (2006) 547 U.S. 410, the First Amendment does not protect a public employee's speech made pursuant to the employee's official job duties and, thus, does not insulate the employee from discipline for such speech. In Lane v. Franks (June 19, 2014) __ U.S. __ 2014 WL 2765285, the United States Supreme Court recently held that a public employee's sworn testimony, beyond the scope of the employee's ordinary job duties, is subject to First Amendmen...

Parent Has Standing to Sue School District for Alleged Failure to Ensure that Students Are Not Discriminated Against, Harassed or Bullied

By: Sloan SimmonsAimee Perry-

July 2014 Number 35 In Hector F. v. El Centro Elementary School District (June 24, 2014) ___ Cal.App.4th ___ 2014 WL 2854704, the California Court of Appeal held that the parent of a student could seek enforcement of a school district's obligations to comply with statutory anti-discrimination and harassment provisions of the Government Code and Education Code. This case may signal an increase of civil actions against school districts in bullying cases. Hector F. hinged on a procedural ...

California Court of Appeal Addresses California False Claims Act Claims

By: Sloan Simmons-

April 2014 Number 26 An appellate court recently issued a ruling that will make it easier for California's public agencies to seek damages for false claims made by vendors. In San Francisco Unified School District ex rel. Contreras v. Laidlaw Transit, Inc. (2014) 224 Cal.App.4th 627 (Contreras II), the California Court of Appeal addressed the concept of "false implied certifications". Such certifications can occur when a vendor or contractor submits invoices to a public agency that are un...

Court Limits Ability to Include a Motto on School Uniforms

By: Sloan SimmonsAimee Perry-

April 2014 Number 23 The U.S. Ninth Circuit Court of Appeals recently issued a decision regarding the limits of lawful school uniform policies under the First Amendment. In Frudden v. Pilling (9th Cir. 2014) 742 F.3d 1199, a school required students to wear a uniform, including a shirt with the motto "Tomorrow's Leaders." The school's uniform policy also contained an exception that permitted students to wear a "uniform of a nationally recognized youth organization, such as Boy Scouts or G...

Court Upholds School District's Authority to Involuntarily Transfer Students to Continuation School

By: Sloan Simmons-

April 2014 Number 22 In Nathan G. v. Clovis Unified School Dist. (March 25, 2014) __ Cal.App.4th __ 2014 WL 1202665, the California Court of Appeal issued the first published opinion to address several issues regarding the involuntary transfer of students to continuation high school under Education Code section 48432.5, as well as the applicable legal standard under which transfer decisions are reviewed by the courts. Lozano Smith represented the school district in this case. In Nathan...

U.S. Supreme Court Declines to Hear Argument On K.M. v. Tustin Unified School District

By: Sloan SimmonsMarcy GutierrezJessi Gasbarro-

March 2014 Number 19 School districts must comply with the Individuals with Disabilities Education Act (IDEA) when developing an appropriate IEP for deaf or hard-of-hearing (DHH) students, and must also comply with the Americans with Disabilities Act (ADA) to ensure their needs for effective communication are met. As previously reported by Lozano Smith, in August 2013, the U.S. Ninth Circuit Court of Appeals held in K.M. v. Tustin Unified School District (9th Cir. 2013) 725 F.3d 1088, tha...

Ninth Circuit Affirms School Officials' Authority to Regulate Student Expression Where Disruption and Student Safety is at Issue, Even if Such Expression is the American Flag

By: Sloan SimmonsGabriela Flowers-

March 2014 Number 15 On February 27, 2014, in Dariano v. Morgan Hill Unified School District (9th Cir. 2014) __ F.3d __ 2014 WL 768797, the U.S. Ninth Circuit Court of Appeals held that a school district administrator did not violate students' constitutional rights by requiring them to remove American flag clothing on Cinco de Mayo. The court's opinion primarily hinged upon: (1) the foreseeable threat of violence that day to the students wearing such apparel; and (2) the school's history ...

CDE Issues Guidance Prohibiting Fees for Caps and Gowns When Required to Participate in Graduation Ceremonies

By: Sloan Simmons-

October 2013 Number 65 On October 4, 2013, the California Department of Education (CDE) issued an Addendum to its Fiscal Management Advisory 12-02 regarding Pupil Fees, Deposits, and Other Charges, addressing for the first time the propriety of imposing on students rental or purchase fees for graduation caps and gowns. The CDE's new guidance states that if wearing a cap and gown is a condition for participation in a graduation ceremony, a school district cannot require students to purchas...

Ninth Circuit Finally Weighs in on Student Discipline for Off-Campus, Electronic Communications

By: Sloan SimmonsJessi Gasbarro-

September 2013 Number 59 In a case with particular interest for school administrators addressing issues such as bullying and threats, a federal court has ruled that school officials can discipline students at school for off-campus electronic communications. In Wynar v. Douglas County Sch. Dist. (9th Cir. 2013) __ F.3d __, 2013 WL 4566354, the United States Ninth Circuit Court of Appeals has held that a student's violent and threatening off-campus, electronic speech was not protected by th...

Court of Appeal Distinguishes Between "Volunteer" and "Employee" for FEHA Disability Discrimination Claims

By: Sloan SimmonsNiki Nabavi Nouri-

August 2013 Number 46 The California Court of Appeal, in Estrada v. City of Los Angeles (July 24, 2013) __ Cal.App.4th __ 2013 WL 3831352, recently considered whether a "volunteer" worker qualified as an "employee" for purposes of bringing a claim under the Fair Employment and Housing Act (FEHA). FEHA is a California statute prohibiting employment discrimination motivated by a number of factors, including disability. To bring a claim against an employer under the FEHA, an individual must ...

Back to School Reminder on Student Fees

By: Ruth MendykSloan Simmons-

August 2013 Number 41 As the end of school summer break approaches and school districts finalize plans for the 2013-2014 school year, now is a good time to review some important general rules relating to student fees. School districts around the state are well aware that Education Code section 49010 et seq. now provides a detailed set of parameters regarding student fees, charges, deposits, donations and fundraising. As such, school districts should keep the following general rules in min...

Reminders and Developments Regarding AB 1575 and Student Fees

By: Thomas MannielloSloan Simmons-

May 2013 Number 24 Assembly Bill (AB) 1575, which added Education Code section 49010 et seq. and now governs practices relating to student fees, charges and deposits, went into effect January 1, 2013. (See Client News Brief No. 58, October 2012.) Now is good time to review certain efforts required by school districts under AB 1575, as well as take inventory of recent developments on this issue relative to the State Board of Education (SBE) and California Department of Education (CDE). ...

Ninth Circuit Clarifies Standards for First Amendment Retaliation Involving Speech Relating to Union Grievances

By: Sloan SimmonsAria Link-

April 2013 Number 16 In Ellins v. City of Sierra Madre (Mar. 22, 2013) __ F.3d__ (2013 WL 1180299), the Ninth Circuit Court of Appeals considered whether John Ellins, a police officer for the City of Sierra Madre (City), had sufficiently alleged a First Amendment retaliation claim, where Ellins claimed that that the delay in his salary increase constituted retaliation for his exercise of free speech rights by way of leading an employee union no-confidence vote against the Chief of Police....

Exhaustion of Leave Under Pregnancy Leave Laws Does Not Preclude An Employee's Right To Additional Leave Under Disability Laws

By: Sloan SimmonsDarren KameyaMarisa Lincoln-

March 2013 Number 14 In Sanchez v. Swissport Inc. (2013) 21 Cal.App.4th 1331, the California Court of Appeal considered a case of first impression regarding the interplay between pregnancy disability leave under the state Pregnancy Disability Leave Law (PDLL) and leave that may be granted to an employee as a reasonable accommodation pursuant to the California Fair Employment and Housing Act (FEHA).[1] Specifically, the Court held that an employee who has exhausted her four-month entitleme...

California Supreme Court Case Affects The Standard Of Proof And Attorney's Fees Awards In FEHA "Mixed Motive" Discrimination Actions

By: Sloan SimmonsDarren Kameya-

March 2013 Number 11 For decades, employees have had a right to bring discrimination claims under California's Fair Employment and Housing Act (FEHA) based on claims that an employer's adverse employment action (such as termination) was due to the employee's protected class (e.g., race, sex, religion). One of an employer's available defenses has been that that, despite some evidence of a discriminatory motive, the employer would have taken the same adverse action for legitimate reasons if...

Public Entities And Religious Expression During The Holidays

By: Dulcinea GranthamSloan Simmons-

November 2012 Number 76 The holiday season often presents challenges for public entities in upholding the First Amendment's protection of religious expression as well as its prohibition against government-sponsored religious endorsement and promotion. The following is a brief reminder of guidelines for public entities, including schools, cities and counties, to follow in this area of the law. Holiday Displays: Christmas Trees, Manger Scenes and Menorahs. Holiday displays on public prop...

District Obligations Broadened For Foster Children Facing Extension of Suspension, Expulsion, and Manifestation Determinations

By: Sloan Simmons-

October 2012 Number 71 Governor Brown recently signed into law Assembly Bill (AB) 1909, which expands school districts' obligations and notice requirements with respect to meetings to determine if a foster child's suspension should be extended pending expulsion proceedings, expulsion hearings for foster children, and meetings to conduct manifestation determinations of foster children prior to imposition of discipline. In adding these additional duties, AB 1909 amends relevant portions of ...

Governor Approves Bills Affecting the Health and Science Curriculum in Schools, GATE Program Standards, and Observance of the Labor Movement

By: Sloan Simmons-

October 2012 Number 68 On September 26, 2012, Governor Brown signed into law two bills that change pupil curriculum in the areas of organ procurement and tissue donation, as well as school districts' observance of the labor movement. The Governor also signed into law legislation intended to ensure GATE program identification of gifted children living in disadvantaged situations. The three new laws are effective January 1, 2013. Organ Procurement and Tissue Donation Under existing law,...

Governor Brown Signs Student Fees Legislation into Law

By: Sloan Simmons-

October 2012 Number 58After vetoing student fees legislation in October 2011, Governor Brown has signed AB 1575 into law. This new law specifically sets out in the Education Code governing principles and prohibitions regarding the imposition of fees, charges or deposits in California K-12 public schools, including charter schools. AB 1575 becomes law following increased statewide scrutiny in the past several years over the charging of student fees in light of the "free school guarantee" in t...

California Public Schools Now Expressly Prohibited From Denying Enrollment To Students Who Have Had Contact With The Juvenile Justice System

By: Sloan Simmons-

October 2012 Number 57On September 20, 2012, Governor Brown signed into law Senate Bill (SB) 1088, which amends Education Code section 48645.5 to expressly prohibit public schools from denying enrollment or readmission to a pupil solely on the basis that he or she has had contact with the juvenile justice system. Currently, Education Code section 48645.5 requires each school district and county office of education to accept for credit full or partial coursework satisfactorily completed ...

Governor Approves Changes to Laws Regarding Independent Study, Social Science Curriculum, and Primary Language Standardized Testing

By: Sloan SimmonsKarin Anderson-

October 2012 Number 53In recent weeks, Governor Brown has approved several bills that will make changes to the Education Code regarding student assessment, instruction, and curriculum. On August 17, 2012, the Governor approved Assembly Bill (AB) 1987, which revises Education Code section 51745. Section 51745 currently allows school districts to operate independent study programs and provides a list of examples of the types of programs that may be offered through independent study. AB 19...

Governor Signs Bill Providing Clarity on Foster Youth and Residency Requirements

By: Sloan Simmons-

August 2012 Number 45 On July 13, 2012, Governor Jerry Brown signed into law Assembly Bill (AB) 1573, modifying Education Code section 48204. This bill clarifies and affirms that a foster child who remains in his or her school of origin, as defined by the Education Code, is considered to have met the residency requirements for school attendance. The change resulting from AB 1573 seeks to clarify any confusion caused by the potential inconsistency between Education Code sections 48200 a...

New Bill Again Amends Definition Of "Electronic Act" For Purposes Of Bullying Prohibitions

By: Sloan Simmons-

July 2012 Number 42 In an attempt to address specific types of cyberbullying, this week Governor Jerry Brown signed Assembly Bill (AB) 1732, modifying the definition of "electronic act" for purposes of the Education Code's bullying prohibitions. Following the implementation of the new bullying policy requirements, which took effect July 1 of this year (see Lozano Smith Client News Brief No. 22), AB 1732 adds further details to make it explicit that "electronic act" includes the social ...

New Bullying-Related Policy Requirements For The Coming School Year

By: Sloan Simmons-

May 2012 Number 22 July 1, 2012 is the deadline for California school districts to adopt two policies related to students and bullying - one to comply with changes to California law, and the other to meet eligibility requirements to receive federal E-rate funding for Internet services. General Bullying Policy First, new California laws require districts to have a policy specifically addressing student bullying, including a comprehensive complaint procedure and a notice of the policy...

Court Finds That High School Athletic Program Violated Title IX

By: Sloan Simmons-

April 2012 Number 15 In the recent decision Ollier v. Sweetwater Union High School District (S.D. Cal. Feb. 9, 2012) 2012 WL 424413, the U.S. District Court of the Southern District of California conducted a detailed examination of a high school athletic program's Title IX compliance. In Ollier, the court found that the high school's female athletes were denied the opportunity to participate in sports on an equal level with the male students at their school in violation of Title IX. T...

Federal District Courts Provide Some Guidance For School Officials On Student Free Speech Rights And Provocative Cancer Awareness Bracelets

By: Sloan SimmonsAimee Perry-

March 2012 Number 11 For the past several school years, California school officials have grappled with the appropriate response to students wearing bracelets to school with provocative slogans supporting cancer awareness. Since April 2011, two different federal district courts in Pennsylvania and Wisconsin have reached different conclusions on whether the First Amendment prohibits a school from barring students from wearing these edgy accessories. The rulings, despite their conflicting re...

Update on the ACLU's Student Fees Litigation

By: Thomas MannielloSloan Simmons-

February 2012 Number 08 As previously discussed in Lozano Smith Alert No. 9 (2010), in the fall of 2010 the American Civil Liberties Union (ACLU) filed a class action lawsuit against the State of Californiaregarding, among other issues, the state's alleged abrogation of its responsibility to ensure that Californiaschool districts do not charge student fees in violation of the free school guarantee under the California Constitution and related laws. The parties reached a proposed settle...

Governor's 2012-2013 Budget Proposal Would Eliminate Funding For Transitional Kindergarten

By: Sloan Simmons-

January 2012 Number 02 Governor Brown recently issued his 2012-2013 budget proposal in which he proposes the elimination of funding for the transitional kindergarten program provided for under Senate Bill (SB) 1381 and due to be implemented at the commencement of the 2012- 2013 school year. It is estimated that the elimination of funding for the transitional kindergarten program would save the state $223.7 million during the 2012-2013 school year. SB 1381 advanced the date by which a c...

Open Enrollment Act - Romero Bill List Of 1,000 Schools Released For Purposes Of 2012-2013 Transfers

By: Sloan Simmons-

November 2011 Number 71 On November 1, 2011, the California Department of Education (CDE) released its list of 1,000 open enrollment schools from which students may transfer under the Open Enrollment Act (Romero Bill) for the 2012-2013 school year. While the Romero Bill intended to identify 1,000 "low performing" schools based on the Academic Performance Index (API), once again, the list includes many schools with exceptionally high API scores. As reported in Client News Brief Number 54, ...

ACLU Issues Report And Recommendations Regarding Schools' Policies And Practices Pertaining To Student Cell Phones

By: Thomas MannielloSloan Simmons-

November 2011 Number 69 The American Civil Liberties Union (ACLU) has released a report regarding schools' practices and policies relating to student cell phones. The report, Hello! Students Have a Right to Privacy in their Cell Phones, discusses student cell phone possession, use, search and seizure, confiscation, and discipline policy trends inCaliforniaand around the nation. The report contains the ACLU's summary of the underlying legal principles at issue and the ACLU's recommended po...

New Laws Ease Proof Of Immunization And Course Credit Requirements For Foster Youth Transferring To New Schools

By: Sloan Simmons-

October 2011 Number 55 The Governor recently signed into law two new bills impacting the education of foster youth inCalifornia. Assembly Bill (AB) 709 will allow foster children, when enrolling in new schools, to enroll in and attend school immediately even if they are unable to produce medical records, including proof of immunization history, at the time of enrollment. Senate Bill (SB) 578 places new duties on school districts to accept coursework for transferring foster youth.  AB ...

Office for Civil Rights Issues Guidance On Sexual Violence In Schools

By: Sloan Simmons-

May 2011 Number 18 The Office for Civil Rights (OCR) issued a letter with information on how school districts can provide students with an educational environment free from sexual violence. (Dear Colleague Letter: Sexual Violence Background, Summary and Fast Facts (April 4, 2011). The letter provides guidance regarding the responsibilities of schools to take immediate and effective steps to respond to sexual violence, a type of sexual harassment, in accordance with Title IX of the Educati...

Search Of Student Who Left Campus Without Permission And Then Returned Was Lawful

By: Sloan Simmons-

January 2011 Number 2 The California Court of Appeal has held that a search of a student who left campus without authorization and returned to school during the school day was lawful based upon a school policy permitting such searches. (In re Sean A. (December 22, 2010) ___Cal.App.4th___) In the case a high school maintained a written policy stating that "students who return to campus after being ‘out-of-bounds' are subject to a search of their person, their possessions, and vehicle ...

Significant Cases

  • In Anderson Union High School District v. Shasta Secondary Home School (2016) 4 Cal.App.5th 262, Mr. Simmons was part of the Lozano Smith litigation team that successfully argued, in a case of first impression, that the geographic and site limitations of the Charter Schools Act (Ed. Code, § 47600 et seq.) are applicable to all charter schools, including “nonclassroom-based” programs.

  • In Newark Unified School District v. Superior Court (2015) 245 Cal.App.4th 887, Mr. Simmons successfully obtained appellate writ relief in an opinion where the Court of Appeal held that a public entity may seek the return of and “claw back” documents protected by the attorney-client privilege that are inadvertently disclosed in a response to a Public Records Act request, establishing new precedent on this issue of first impression.

  • In Nathan G. v. Clovis Unified School District (2014) 224 Cal.App.4th 1393, Mr. Simmons successfully defended the district's involuntary transfer of student to continuation high school and obtained first published opinion interpreting the involuntary transfer statute, appropriate level of review under same, and the nature of other means of correction necessary before imposing an involuntary transfer.

  • In Rimando v. Alum Rock Union Elementary School District (9th Cir. 2009) 356 Fed.Appx. 989, Mr. Simmons successfully argued that a California public school district is a "State employer" for purposes of the Uniform Services Employment and Reemployment Rights Act of 1994 (USERRA) and consequently suits against school districts under USERRA must be filed in state court, a decision which is the first of its kind in the Ninth Circuit.

  • In Clovis Unified School District v. Chiang (2010) 188 Cal.App.4th 794, Mr. Simmons assisted school district in invalidating audits of several state mandated cost reimbursement claims worth more than $30 million, based upon the use of invalid, underground auditing documentation rule by the State Controller's Office.

  • Mr. Simmons conducted briefing preparation on the published decision Alex G. v. Board of Trustees (E.D. Cal. 2005) 387 F.Supp.2d 1119, successfully defending against section 504 and ADA discrimination and retaliation claims in the special education context.

  • Mr. Simmons also prepared briefing for Chavez v. City of Los Angeles (2010) 47 Cal.4th 970, in support of the City of Los Angeles on behalf of amicus curiae the League of California Cities and the California State Association of Counties, which is one of several federal and state cases in which Mr. Simmons has prepared amicus curiae briefs.

  • In A.A. v. Raymond (E.D. Cal. July 22, 2013) 2013 WL 3816565, assisted in successfully defeating a bid to halt school closures by way of preliminary injunction, where the district court agreed that plaintiffs were unlikely to succeed on the merits of their equal protection, American Disabilities Act, and due process claims challenging the school closures.