The Ninth Circuit Court of Appeals recently affirmed the constitutionality of California's Voters' Choice Act (VCA), which provides for an all-mail ballot election system. The court's opinion validates the ability of states and local election officials to implement and operate systems that are designed to increase voter turnout.
In this litigation, Lozano Smith represented respondent County of Madera, which had opted in to the VCA system for the 2018 election c...
School surveillance video can be considered a student record under certain circumstances, triggering a school district's obligation under the federal Family Educational Rights and Privacy Act (FERPA) to allow parents to view it.
In response to a recent state court case, the California Legislature passed Senate Bill (SB) 1053 to explicitly prohibit local agencies from adopting local claim procedures that limit the presentation of childhood sexual abuse claims. The law, which was signed by Governor Jerry Brown on July 23, goes into effect January 1, 2019.
Code of Civil Procedure section 340.1 allows a lawsuit for childhood sexual abuse to be filed within the later of eight years...
State lawmakers have indefinitely extended previously approved limits on disciplining students for defiance and disruption and have expanded the list of issues that may be addressed through the Uniform Complaint Procedures (UCP).
The changes were included in a budget trailer bill, Assembly Bill (AB) 1808, and became effective when Governor Jerry Brown signed the bill on June 27.
Extension of Limits on Student Discipline for Disruption and Willful Defiance
Schools may soon be fielding requests to administer Epidiolex, a drug containing cannabidiol (CBD), a chemical component of marijuana that does not create a "high," to students.
On June 25, 2018, the U.S. Food and Drug Administration (FDA) approved Epidiolex to treat two types of pediatric epilepsy. The approval of Epidiolex will pave the way for school districts, for the first time, to administer a medicine derived from marijuana, provided that the Drug Enforcement...
On June 4, 2018, the United States Supreme Court decided theMasterpiece Cakeshop v. Colorado Civil Rights Commission case in a 7-2 decision. While this case had the potential to provide new guidance on the complex intersection between the rights of LGBTQ+ individuals and the rights of individuals to religious freedom, Justice Anthony Kennedy's opinion is narrow and leaves many questions unanswered. The Court's limited ruling is largely based upon the underlying facts o...
The California Court of Appeal’s recent opinion in M.N. v. Morgan Hill Unified School District (2018) 20 Cal.App.5th 607 (“Morgan Hill USD”) resolves several issues of first impression significant to student expulsion proceedings involving sexual battery. In M.N., a case in which Lozano Smith’s Sloan Simmons and Steve Ngo successfully represented the Morgan Hill Unified School District, the court set forth clear rulings on the legal standards for e...
The California Attorney General's Office (AG) has published a comprehensive guide and model policies to equip local educational agencies (LEAs) with information and resources for addressing immigration enforcement actions and also, hate crimes and bullying that target immigrants.
The guide is intended to serve as an instructional tool for LEAs in addressing increased U.S. Immigration and Customs Enforcement (ICE) activity and the impacts of the rescission of the De...
The Fifth District Court of Appeal's opinion in Big Oak Flat-Groveland Unified School District v. Superior Court holds, for the first time, that local agencies may enact local claims procedures under the Government Claims Act which require the submission of claims regarding childhood sexual abuse, despite the general exemption of such claims from the Government Claims Act's claim presentation requirements and the more forgiving statute of limitations which apply to s...
In recent weeks, media outlets have reported on immigration raids by U.S. Immigration and Customs Enforcement (ICE) agents that targeted various areas in California. These raids have focused on the Bay Area, Los Angeles, and Sacramento areas. Other reports have confirmed ICE agents raiding dozens of 7-Eleven stores throughout the nation, and serving notices of inspection at 77 Northern California businesses within San Francisco, San Jose, and Sacramento.
As these en...
This Client News Brief was updated on March 6, 2018.
UPDATE: California Department of Education Issues Guidance
The California Department of Education (CDE) and State Superintendent of Public Instruction Tom Torlakson released guidance on March 2 regarding student walkouts. Echoing the suggestions below, the CDE calls for schools to provide outlets for student political expression through classroom or school-wide discussions, as well as for proactive discussio...
A federal district court in California has granted a preliminary injunction blocking a school district's policy requiring student athletes to stand during the national anthem at school sporting events.
In V.A. v. San Pasqual Valley Unified School District, the Southern District of California court ruled that kneeling in silent protest is a form of student symbolic speech protected under the First Amendment.
During the first game of the 2017 varsit...
A Washington school district was not required to allow a high school football coach to pray on the 50-yard line at the end of each game, the Ninth Circuit Court of Appeals ruled in Kennedy v. Bremerton School District (9th Cir. 2017, No. 16-35801) ___F.3d___ <http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/23/16-35801.pdf>. The court found that the District did not violate the coach's First Amendment rights by placing him on administrative leave for ref...
On September 5, 2017, the Trump Administration announced plans to end the Deferred Action for Childhood Arrivals (DACA) program. The program temporarily permitted some 800,000 undocumented immigrants who arrived in the United States as children to lawfully stay, attend school, and work in the U.S. without the threat of deportation. The Administration is phasing out the program over a six-month period that will end on March 5, 2018, unless Congress enacts legislation...
A divided California Supreme Court threw out a woman's claim against a public agency arising from resurfaced memories of alleged sexual abuse in the early 1990s because it was not submitted to the public agency by the six-month deadline for submitting such claims under the Government Claims Act. (Rubenstein v. Doe No. 1 et al. (Aug. 28, 2017, No. S234269)__ Cal.5th __.)
In a 4-3 decision, the Court found that the "delayed discovery rule" applicable to childhood...
Changes to California's school funding scheme did not eliminate local school district and county office of education immunity from federal claims for damages, the Ninth Circuit Court of Appeals has ruled.
In Sato v. Orange County Department of Education (9th Cir. 2017) ___ F.3d ___, the Ninth Circuit affirmed that California school districts and county offices of education retain their absolute defense to claims for damages in federal court due to sovereign immuni...
The United States Supreme Court has held that trademarks are private speech protected by the First Amendment, even if some find the ideas they express offensive.
In Matal v. Tam (2017) 582 U.S. ___, the Court held the Lanham Act's disparagement clause to be unconstitutional because it discriminated based on a viewpoint. The Court, noting that the First Amendment is a bedrock principle of government, wrote that the public expression of ideas may not be prohibited mer...
The United States Supreme Court struck down as unconstitutional a state policy excluding churches from participating in a government benefit program solely based on their religious status. This is a reminder that public agencies cannot deny religious institutions participation in government programs designed to promote a public benefit solely because of the institution's religious character. (Trinity Lutheran Church of Columbia, Inc. v. Carol S. Comer (2017) 582 U.S. _...
The U.S. Department of Education's Office for Civil Rights (OCR) has issued new instructions to its regional directors regarding how to handle complaints involving transgender students. The document is intended to offer OCR staff additional guidance in light of recent court developments and the Trump Administration's withdrawal of the Obama Administration's guidance on transgender students. (See 2017 Client News Brief No. 9.)
The instructions affirm that transgender...
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...
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...
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...
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...
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...
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...
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...
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...
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 ...
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...
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...
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...
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...
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 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...
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...
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...
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...
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 ...
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...
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.
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...
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 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 ...
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...
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...
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.
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...
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 ...
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...
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...
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...
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...
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 ...
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...
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 ...
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...
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...
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.
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...
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 ...
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...
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...
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 ...
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...
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).
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....
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). Specifically, the Court held that an employee who has exhausted her four-month entitleme...
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...
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...
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 ...
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,...
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...
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 ...
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...
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...
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 ...
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...
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.
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...
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 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...
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, ...
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...
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.
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...
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 ...