Michael E. Smith
Of Counsel | Sacramento, Fresno, San Luis Obispo
msmith@lozanosmith.com
Tel: 916.329.7433
Fax: 916.329.9050
Vcard
Bio
Overview
Michael E. Smith is Of Counsel and one of the founders 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 40 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.Articles
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;
- "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; and
- "Changes will affect how juvenile courts interact with schools" published by ACSA in EdCal, June 29, 2020.
Update on Timeline for Release of 2020 Census Redistricting Data and Impact On Upcoming CVRA Deadlines
*** UPDATED AS OF 2/12/21 ***February 2021Number 4As stated in our February 2021 Client News Brief (link here), the impact of COVID-19 caused the Census Bureau to delay delivery of the 2020 Census apportionment data to the states.As an update, the Bureau recently announced that it will deliver the redistricting data to all states by September 30, 2021. This is two months later than previously expected, and six months later than the statutorily contemplated deadline. This delay will impact man...
Release of the 2020 Census Data, its Relevance under the California Voting Rights Act, and its Impact on Public Agency Elections
February 2021Number 1In October of 2020, the United States Census Bureau completed "the count" for the 2020 Decennial Census. While the Bureau has yet to finish tabulating and verifying the final results, the anticipated release of the 2020 Census data will have an important impact on school district and public agency elections. Those public agencies that have already transitioned to "by-district" (or for school districts, "by-trustee area") elections are required by law to analyze the new Ce...
Court of Appeal Rules that Santa Monica's At-large Method of Elections Does Not Violate the California Voting Rights Act
July 2020Number 58On July 9, 2020, California's Second District Court of Appeal unanimously held that the City of Santa Monica's (City) at-large elections do not violate the California Voting Rights Act (CVRA) (Elec. Code, § 14025, et seq.). The CVRA is a state law that allows voters to sue public agencies whose at-large elections may result in underrepresentation of minorities. Pico Neighborhood Association et al., v. City of Santa Monica represents the first time a public agency has su...
New Law Calls for Greater Collaboration between Court Schools and Counties
May 2020 Number 38 Last fall, Governor Gavin Newsom signed Assembly Bill (AB) 1354 which creates new legal requirements for a county office of education and certain charter schools operating juvenile court schools. Notably, AB 1354 reaffirms the Legislature's intent for greater collaboration between county offices of education, county probation departments, and local educational agencies regarding students transitioning in and out of juvenile court schools. Many county offices of educati...
"She Said, He Said": Appellate Court Weighs In On Fairness Requirements In Student Sexual Assault Discipline Case
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
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
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
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
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
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...
Governor Signs CalSTRS Sponsored Legislation Grandfathering CalSTRS Enrollees Into the System, Providing Option to Change Retirement Systems and Revising the Definition of Creditable Service
February 2016 Number 6 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...
Video: Title IX and Sports Equity
Attorney Michael Smith discusses Title IX and sports equity in California schools. ...
State Monitoring of Title IX Compliance is Beginning
December 2015 Number 76 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 Employer Information Circular Provides Helpful Reminders of Common Reporting Errors
October 2015 Number 53 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...
CalSTRS Sponsors Legislation Grandfathering CalSTRS Enrollees Into the System and Revising The Definition of Creditable Service
April 2015 Number 26 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 "...
With CalSTRS' New Creditable Compensation Regulations in Effect - Opportunity to Restructure Administrator Employment Contracts by December 31, 2015
April 2015 Number 21 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 ...
CalSTRS Issues New Creditable Compensation Regulations - Impact Will Be Felt at Bargaining Table & in Administrator Contracts
September 2014 Number 55 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...
AB 1266: Gender Identity Bill Now Law
February 2014 Number 14 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...
CalSTRS Election Remedy - CalSTRS Issues Clarifying e-Bulletin
February 2014 Number 13 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...
CalSTRS Election Remedy - Frequently Asked Questions
January 2014 Number 9 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...
AB 1266: New Gender Identity Bill on Hold
January 2014 Number 3 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...
Creditable Service Election Remedy Now Available From CalSTRS
November 2013 Number 82 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...
Lozano Smith-ACSA Joint Alert -
Election Remedy for CalSTRS Creditable Service Issue Forthcoming
November 2013 Number 80 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...
Should School Districts Go "Peanut-Free"?
October 2013 Number 69 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...
CalSTRS Update: What Compensation Counts for Retirement?
What Service is Considered Creditable?
October 2013 Number 63 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...
California Voting Rights Act Decision Affirmed By Court Of Appeal
March 2012 Number 09 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
California Voting Rights Act Update: Attorneys' Fees And County Committee Liability Clarified...
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.