Michael E. Smith

Partner | Fresno, Bakersfield

Attorney Insights

Tel: 559.431.5600
Fax: 559.261.9366
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Michael E. Smith is a Founding Partner of Lozano Smith. He is a school law attorney, an educator and a speaker. Mr. Smith graduated from Claremont Men's College (Magna Cum Laude) and obtained his J.D. from the University of California at Davis. He was admitted to the California Bar in 1980, and has represented school districts for over 38 years. In addition to his General Counsel experience in all aspects of Educational law, Mr. Smith offers specific expertise in collective bargaining, labor and personnel, student discipline matters, and constitutional questions. Mr. Smith also works extensively drafting superintendent and administrator contracts with a specialized focus on management compensation and CalSTRS/CalPERS Retirement issues.

Professional Affiliations

Mr. Smith is a past president of the California Council of School Attorney and the current president of the California School Boards Association Education Legal Alliance Advisory Board. Mr. Smith served for eight (8) years as a member of the National Council of School Attorneys (COSA), which is affiliated with the National School Boards Association's. Mr. Smith also serves on the COSA Amicus Committee. Mr. Smith is also a member of the Board of Directors of the Civic Engagement Center, a non-profit organization that focus on civic engagement in schools.

Presenter Experience

Mr. Smith's talents are highly sought as a presenter on education law issues. He is a frequent speaker at national and statewide conferences, which include the National School Boards Association, the National Council of School Attorneys, the California School Boards Association, the California Council of School Attorneys, and the Association of California School Administrators.


Mr. Smith has written numerous articles. They include:
  • "The Effective Use of Counsel" published by LRP's The Special Educator, September 2002;
  • "The Collective Bargaining Impacts of No Child Left Behind" published in LRP Managing School Business, August 2003 and the NCLB Advisor, August 2003;
  • "Educators: Set Aside 'Culture of Cynicism', Mind-set of Negativity; Focus on Positive" published by LRP's California Special Education Alert, January 2004;
  • "Find Silver Lining in Legal Gloom, Doom" (re: NCLB, IDEA & other acronyms) and "NCLB Far From Perfect, But Signals a Push in the Right Direction", both published in LRP Publications, January 2004;
  • "Lawfully Teaching About Religion in Schools" published by the NSBA, April 2005;
  • "Keep Staff Out Of The Dark On Parental Notification Mandates" published by LRP Publications in Your NCLB Advisor, March 2006;
  • "The Intersection of Sexual Orientation, Free Speech, and Religion in the Schools" published by The Council of School Attorneys, November 2006;
  • "The Girl Who Would Be Prom King" published by NSBA, June 2007;
  • "Certificated Step and Column Freezes" published by School Services of California in the Fiscal Report, Volume 30, No. 1, January 15, 2010; and
  • "Code of Conduct: Reviewing and Auditing Your Hiring and Supervision Practices for Athletic Coaches" published by American School Board Journal, Volume 198, No. 8, August 2011.

“She Said, He Said”: Appellate Court Weighs In On Fairness Requirements In Student Sexual Assault Discipline Case

By: Michael SmithGayle Ketchie-

July 2019Number 33On April 23, 2019, a California appellate court ruled against a private college for failing to properly provide an accused student with a fair hearing in a sexual assault case that led to the student being suspended from college for two years.Doe v. Westmont College involved an alleged rape of a female college student (Victim) by a male college student (Accused) and demonstrates the necessity of fairness for all parties involved in contested student sexual assault discipline...

Supreme Court Opinion on Wedding Cake for Same-Sex Couples Provides Cautionary Tale for Public Entities

By: Michael SmithSloan SimmonsJoshua Whiteside-

June 2018Number 24On 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 of the ...

Ninth Circuit Rules Employee’s Prior Salary Cannot be used as Basis for Wages

By: Michael SmithJoshua Whiteside-

June 2018Number 25Update: On February 25, 2019, the U.S. Supreme Court vacated the judgment and remanded the Rizo case back to the Ninth Circuit because the original decision included a vote from Judge Reinhardt, who had passed away by the time the decision was published. The Supreme Court's decision should have limited impact in California, as the California Fair Pay Act codifies much of the same principles of the Ninth Circuit's decision in Rizo and was amended post-Rizo, as explained in ou...

Supreme Court Finds Trademark Disparagement Clause Unconstitutional

By: Michael SmithSloan Simmons-

July 2017 Number 44 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...

Supreme Court Strikes Down Denial of Government Grant to Church

By: Michael SmithSloan Simmons-

July 2017 Number 45 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. _...

Court Rules School Districts not required to Use Standardized Test Scores in Teacher Evaluations

By: Michael SmithDulcinea GranthamStephen Mendyk-

October 2016 Number 80 A California trial court has ruled that the Stull Act does not require school districts to use the results of standardized test scores in teacher evaluations. (Doe v. Antioch Unified School District (Super.Ct. Contra Costa County, 2016, No. MSN15-1127.) The court examined the text of Education Code section 44662(b)(1), which states that a school district "shall evaluate and assess certificated employee performance as it reasonably relates to [t]he progress of pup...

Significant Cases
Morse v. Frederick (2007) 551 U.S. 393. Mr. Smith served as Amicus Counsel for the National School Boards Association and the American Association of School Administrators. The Supreme Court of the United States upheld the right of a high school principal in Juneau, Alaska, to discipline a student who held up a banner proclaiming "BONG HiTS 4 JESUS" during a school endorsed activity even without a showing of likely material disruption to the school environment. In doing so, the court overruled the previous decision of the Ninth Circuit Court of Appeals, which would have imposed personal liability on the principal for violation of the student's First Amendment rights.

Atwater Elementary School District v. Department of General Services (2007) 41 Cal.4th 227. The California Supreme Court issued a landmark decision when it held that the four-year period for a school district to bring dismissal charges against a teacher is not absolute. The District contended the four-year period should be extended based on principles of equity and fairness in order to permit the District to introduce evidence of sexual misconduct that occurred more than four years before the filing of the dismissal notice.

Eklund v. Byron Union School District (9th Cir. 2005) 154 Fed. Appx. 648. Mr. Smith served as Amicus Counsel on behalf of the California School Boards Association. The District won before the 9th Circuit Court of Appeals, having demonstrated that the school district lawfully taught about religion.

Duval v. Board of Trustees (2001) 93 Cal.App.4th 902. Established the principle that a legislative body may conduct comprehensive personnel evaluations in closed session, including a discussion of evaluation criteria and setting goals for future performance.

CTA v. Rialto Unified SD (1997) 14 Cal.4th 627.Mr. Smith Served as Amicus Counsel. In this case the California Supreme Court clarified the priority to be given to presently employed qualified, credentialed employees for coaching positions.

Belanger v. Madera Unified School Dist. (9th Cir. 1992) 963 F.2d 248. The Belanger case established that K-12 school districts have 11th Amendment immunity to Section 1983 civil rights claims.

Dilts v. Cantua Elementary School Dist. (1987) 189 Cal.App.3d 27. This case established that the doctrine of "substantial compliance" cannot be used to overcome a plaintiff's failure to comply with the Government Claims Act.

Religion in the Schools – A Vehicle for Inclusivity

By: Michael SmithJoshua Whiteside-

In advance of his upcoming free seminar at California State University Fresno, attorney Michael Smith, joined by associate Josh Whiteside, talks with host Devon Lincoln about the role that religion plays in the lives of public school students and their teachers and other staff, and how schools can create a climate of inclusivity and support for students of every background and faith tradition. For more details on the upcoming seminar, see the show notes below.