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 35 years. In addition to his General Counsel experience in all aspects of Education law, Mr. Smith offers specific expertise in collective bargaining, labor and personnel issues, student discipline matters, school district reorganizations, and constitutional questions involving religion, speech and search and seizure. Mr. Smith also works extensively drafting superintendent and administrator contracts with a specialized focus on management compensation and CalSTRS Retirement issues.
Mr. Smith is a member of the Board of Directors of the National School Boards Association's National Council of School Attorneys and Chair of the NSBA Council of School Attorneys Amicus Committee. He is the current president of the California School Boards Association Education Legal Alliance Advisory Board, and a past president of the California Council of School Attorneys.
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.
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 Ninth Circuit ruled in Rizo v. Yovino that using an employee's prior salary as a basis for establishing their initial salary is a violation of the federal Equal Pay Act.
The decision is based on a policy adopted by the Fresno County Office of Education, which determined a new employee's initial salary by adding 5 percent to their previous salary. The Ninth Circuit found that this policy was impermissibly based on sex, in violation of the federal Equal Pay Act, b...
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. _...
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...
On January 1, 2016 Assembly Bill (AB) 963, a CalSTRS-sponsored bill addressing creditable service issues, became law. With the law now in final form, this Client News Brief updates our Client News Brief No. 26, April 2015.
AB 963 accomplishes four goals:The bill "grandfathers" in all service that did not meet the definition of creditable service in place at the time but was reported to CalSTRS anyway on or before December 31, 2015.
The bill allows members who are gran...
Attorney Michael Smith discusses Title IX and sports equity in California schools.
The California Department of Education recently issued the 2015-2016 Education Equity program instrument (Guidance), which is used to monitor a local educational agency's (LEA) compliance with laws on equity in the treatment of students. Of particular note, the Guidance identifies a new Title IX reporting requirement that was enacted by Senate Bill (SB) 1349 in 2014.
SB 1349 added section 221.9 to the Education Code, which requires that beginning with the 2015-2...
CalSTRS recently issued an Employer Information Circular (EIC) containing important reminders of common errors leading to negative audit findings for school districts, county offices of education and community colleges.
The EIC addresses proper reporting for special compensation and clarifies that extra-duty compensation must be reported separately from special compensation. For example, off-schedule bonuses or advanced degree pay are reported differently than co...
New changes are once again on the horizon for CalSTRS enrollment. A new bill amending the definition of "creditable service" for the CalSTRS system will be considered by the legislature in the coming months. Retirement benefits under the Defined Benefit Plan administered by CalSTRS are calculated using a member's years of creditable service, age at retirement, and final compensation. However, compensation is reported to CalSTRS only if paid for work that constitutes "...
The CalSTRS creditable compensation regulations adopted this past September officially came into force January 1, 2015. The new regulations define creditable compensation for CalSTRS members who entered the public retirement system prior to January 1, 2013 (i.e., "classic" or "2% at 60" members). The regulations prescribe new rules governing which forms of compensation count for the Defined Benefit program as opposed to the Defined Benefit Supplement account, thereby ...
The long-awaited CalSTRS creditable compensation regulations were adopted by the CalSTRS Board on September 4, 2014. The new regulations govern how CalSTRS will treat various forms of compensation for CalSTRS members who entered the system prior to January 1, 2013 (these members are usually referred to as "classic" or "2% at 60" members). The regulations take effect January 1, 2015.
The use of formal regulations to provide guidance on the treatment of compensat...
On February 24, 2014, the California Secretary of State announced that the referendum effort to put Assembly Bill (AB) 1266 to a statewide vote failed to receive enough valid signatures to qualify for the November 2014 ballot. With the failure of the referendum, AB 1266's nondiscrimination and access requirements are now law. Originally set to have an effective date of January 1, 2014, AB 1266 was put on hold due to the pending referendum challenge (see 2014 Lozano...
As specified in the November 25, 2013 Employer Information Circular, CalSTRS is currently allowing employers to use the employer correction statute (Education Code § 22308) to file an election form with a retroactive effective date. The retroactive election is allowed for any employee who was eligible to make such an election in the past but failed to do so because the employer did not provide the employee with the necessary information regarding his or her el...
Lozano Smith has continued to coordinate with ACSA, CASBO and other administrative associations for K-12 and community college administrators regarding the steps that school districts and community colleges should take in response to the August 29, 2012 CalSTRS Circular Letter raising questions about the creditable service of employees in certain administrative positions.
CalSTRS publication of a second Circular Letter on November 25, 2013 provided useful guidance...
Last year, Governor Brown signed into law Assembly Bill (AB) 1266, which was set to have an effective date of January 1, 2014. However, since AB 1266 was signed, a referendum challenge was mounted to prevent AB 1266 from becoming law, and the referendum effort has caused the effective date to be put on hold. AB 1266 amends existing Education Code nondiscrimination provisions to require schools to allow a student to participate in sex-segregated school programs and us...
Today (November 25, 2013) CalSTRS issued a new Circular Vol. 29, Issue 3 - "Right of Retirement System Election When Changing Positions," allowing any CalSTRS member who believes that they are, or may have been, employed in a position that is not clearly eligible for CalSTRS membership to have their employer file an election form (ES372) within 180 days in order to ensure that all of their service counts as creditable for retirement purposes.
This remedy comes i...
On August 29, 2012, CalSTRS issued an Employer Information Circular entitled "Positions Not Eligible for Creditable Service." This Circular identified several positions as not being eligible for CalSTRS, including "Director of Human Resources." This Circular gave rise to a wave of uncertainty and angst regarding whether many positions previously considered certificated positions were, in fact, improperly reported to CalSTRS. This Circular followed a CalSTRS audit o...
Peanut allergies are on the rise. In fact, according to Food Allergy Research & Education (FARE), the number of children who are allergic to peanuts tripled from 1997 to 2008. Peanut allergies can cause a severe and potentially fatal allergic reaction. Allergic students who come into contact with peanuts can go into anaphylactic shock, making it critical to have epinephrine auto injectors (e.g., EpiPens) close at hand. Districts have an obligation to keep studen...
The pension reform movement has now moved into the era of pension accountability. With the passage of the Public Employee Pension Reform Act and "clean up" legislation, CalSTRS is in the process of clarifying what compensation will count for a member's Defined Benefit Program and what compensation will be rolled over into a member's Defined Benefit Supplement Program. In addition, CalSTRS is working to provide guidance on what service is creditable. A member's reti...
In a recent decision, Rey v. Madera Unified School District (February 28, 2012) ___ Cal.App.4th ___ (2012 WL 615668), the California Fifth District Court of Appeal affirmed a trial court ruling which held that a school district's at-large trustee voting system was in violation of the California Voting Rights Act (CVRA), and that, although the district approved a plan to move to by-trustee area elections within three months of receiving the complaint letter, it was req...
California Voting Rights Act Update: Attorneys' Fees And County Committee Liability Clarified...
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.