Sloan R. Simmons
Partner | Sacramento
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 and all forms of school district and public agency trial court litigation and appeals, as well as student issues. Mr. Simmons' years of experience on student issues for school districts of all sizes and in all regions of the state has resulted in his expertise in nearly all student related matters. Mr. Simmons was named a Top Lawyer in Schools & Education by Sacramento Magazine in 2020.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), the California County Superintendents Educational Services Association (CCSESA), the Council of School Attorneys (COSA) associated with the National School Boards Association (NSBA), and the California Council of School Attorneys (CCSA).Education
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.U.S. DOE Releases Updated Federal Guidance Regarding Religious Expression in Public Schools in Light of Kennedy
August 2023Number 28On May 15, 2023, the U.S. Department of Education (U.S. DOE) updated its Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools (Guidance). The update is a result of the United States Supreme Court opinion in Kennedy v. Bremerton School District (2022) 142 S.Ct. 2407, which overruled Lemon v. Kurtzman (1971) 403 U.S. 602, and eliminated the “Lemon test,” which was widely applied by school official...
Ninth Circuit Confirms Title IX Protections for Perceived Sexual Orientation
August 2023Number 29The U.S. Court of Appeals for the Ninth Circuit recently held that Title IX of the Education Amendments Act of 1972 prohibits discrimination on the basis of perceived sexual orientation. BackgroundIn Grabowski v. Arizona Board of Regents (9th Cir. June 13, 2023) Case No. 22-15714, Michael Grabowski alleged that while he was a “first-year student-athlete, his teammates subjected him to frequent ‘sexual and homophobic bullying’ because they perceived h...
Ninth Circuit Upholds Student Discipline for Social Media Posts
March 2023Number 10In Chen v. Albany Unified School District (9th Cir. 2022) 56 F.4th 708, a panel of Ninth Circuit judges agreed with a lower court ruling that the school district’s decision to discipline students who created and commented on racist social media posts attacking classmates and school staff did not violate those students’ free speech rights when those off-campus posts circulated among other students at the school, disrupting classes and causing academic issues and ...
U.S. Supreme Court Holds USERRA Damages Claims Viable Against Arms of the State in Federal Court
December 2022Number 62Earlier this year, in Torres v. Texas Department of Public Safety (June 29, 2022) __ U.S. __ [142 S.Ct. 2455], the United States Supreme Court held that claims for damages under the federally enacted Uniformed Services Employment and Reemployment Right Act (USERRA) are permissible in federal court against states and arms of the state, such as California universities, community college districts, and school districts, thereby superseding Ninth Circuit precedent which conc...
New OCR Guidance Regarding Title IX and Pregnancy
December 2022Number 58On the heels of the United States Supreme Court decision in Dobbs v. Jackson Women’s Health Organization (2022) ___U.S.___ [142 S.Ct. 2228] (overturning various abortion rights precedents) and the recently proposed changes to the regulations under Title IX of the Education Amendments of 1972 (Title IX), the U.S. Department of Education (Department) Office for Civil Rights (OCR) has released a new resource regarding the intersection of Title IX and pregnancy. ...
Updates Regarding CDPH Guidance for Schools and Student Vaccine Mandates Heading into the 2022-2023 School Year
August 2022Number 37The California Department of Public Health (CDPH) recently updated its COVID-19 related guidance for K-12 schools for the 2022-2023 school year, which addresses and updates guidance on masking requirements, reporting, and paid leave. In addition, there are several related updates on the student vaccines front: Senate Bill (SB) 871 was withdrawn; Governor Newsom’s vaccine mandate has been delayed until at least July 1, 2023; and vaccination requirements enacted ...
UPDATE: Ninth Circuit Finds Lawsuit Regarding COVID-19 Limits on In-Person Learning Now Moot
August 2022Number 36The plaintiffs in Brach v. Newsom (9th Cir. June 15, 2022, No. 20-56291) __ F.4th __, originally filed a case in U.S. District Court for the Central District of California, challenging various orders, including the 2020-2021 Reopening Framework, issued by California government officials concerning the operation of both public and private schools during the COVID-19 pandemic. The District Court denied the plaintiffs’ request to prevent the State from enforcing t...
Supreme Court Rules in Favor of Football Coach Conducting Brief, Quiet, and Personal Post-Game Prayer on the Field
July 2022Number 31On June 27, 2022, the United States Supreme Court ruled in favor of a high school football coach holding that the Free Speech and Free Exercise Clauses of the United States Constitution’s First Amendment protected his personal and individual prayer on the field following three football games in October 2015. Overruling Lemon v. Kurtzman, the Court rejected Bremerton School District’s (District) position that it was compelled to prohibit Kennedy’s demo...
United States Supreme Court Speaks on Government Versus Private Speech in Residents' Display of Flags on Public Property
July 2022Number 30In Shurtleff v. City of Boston (2022) 142 S.Ct. 1583 (Shurtleff), the United States Supreme Court, for the first time, addressed a topic that presents a common and growing issue for public agencies related to the intersection between government versus private speech under the First Amendment: residents’ use of government property to display flags of their choosing. The distinction is important because, when the government speaks, the First Amendment does no...
Federal District Court Upholds Consequences for Student's Offensive Tweet
June 2022Number 29In Castro v. Clovis Unified School District (E.D.Cal. May 20, 2022, No. 1:19-cv-00821-DAD-SKO), a United States District Court recently upheld the Clovis Unified School District’s (District) decision to revoke a student’s privilege of “walking” during his graduation ceremony in response to the student posting a tweet depicting a classmate captioned with a racial slur. Though the student argued that the District’s actions impermissibly infr...
Updates to Masking Requirements for Students and Employees
March 2022Number 16The California Department of Public Health (CDPH) and the Centers for Disease Control and Prevention (CDC) recently released new guidance, which includes changes to the legal requirements for face masks and new health and safety recommendations for local educational agencies to consider.On February 25, 2022, the CDC released new guidance describing how the CDC now measures the impact of COVID-19 on local health and healthcare systems within each U.S. county. This new guidan...
Superior Court Dismisses Lawsuit Challenging the State's Face Mask Mandate in California K-12 Schools
February 2022Number 7On November 12, 2021, San Diego Superior Court Judge Cynthia Freeland ended a lawsuit filed against Governor Gavin Newsom, the California Department of Public Health (CDPH), and other California state health officials. The lawsuit was filed by two organizations, Let Them Breathe and Reopen California Schools. The plaintiffs’ complaint alleged nine causes of action and challenged, among other things, the CDPH’s guidelines and mandate for face coverings in K-12 ...
Legal Challenges to Student Vaccine Mandates Produce Varying Results
January 2022Number 5**Update Pending**Vaccine mandates enacted by and affecting local education agencies have faced various legal challenges, with differing outcomes. Divergent court rulings regarding student vaccine mandates have been issued, often within days of rulings regarding mask mandates, resulting in a changing and sometimes confusing legal landscape. This Client News Brief addresses the legal challenges to student vaccine mandates.LAUSD Student Vaccine Mandate – Los Angeles Su...
Ninth Circuit Refuses to Enforce OCR's "Dear Colleague Letters" as Binding Law in Disability Discrimination Suits for Money Damages
November 2021Number 38Since their initial release in 1994, school officials have looked to “Dear Colleague Letters” (DCLs) issued by the United States Department of Education’s Office for Civil Rights (OCR) as guidance on the implementation of federal special education and disability laws. Further, such DCLs have been relied upon by parents and their advocates and attorneys to support claims of wrongdoing by school officials. In September 2021, in Csutoras v. Paradise High S...
UPDATE: Please Note, this Opinion has Been Vacated to Be Heard En Banc by Ninth Circuit
Ninth Circuit Finds COVID-19 Limits on Public School In-Person Learning Permissible, but Not for Private Schools
September 2021Number 27UPDATE: Please note, the following Client News Brief is based upon an opinion issued by a three-judge panel of the Ninth Circuit in July 2021. In December, the Ninth Circuit has agreed to hear the case en banc, meaning the chief judge and 10 additional judges will hear the case. This determination means the original opinion is vacated, and the following CNB is therefore for reference only, and does not speak to the final ruling and opinion in this case by the Ninth Ci...
Appellate Court Ruling Sheds Light on the Government Claims Act, Sexual Abuse Cover Up and Related Damages
August 2021Number 21In its recent decision in Los Angeles Unified School District v. Superior Ct., Los Angeles County (2021) 64 Cal.App.5th 549, the California Court of Appeal held that a school district is immune from an award of treble damages in a tort action for childhood sexual assault where the assault occurred as the result of a cover up. In reaching its decision, the court distinguishes between primarily punitive damages, for which a public entity maintains immunity, from normal tort...
School District Properly Placed Coach on Leave After He Refused to Cease Public Prayers Following Football Games
August 2021Number 20UPDATE: On September 14, 2021, Kennedy petitioned for United States Supreme Court review of the Ninth Circuit's ruling discussed in this Client News Brief. Oral arguments were heard by the Supreme Court on April 25, 2022. How the Supreme Court ultimately decides this case could have significant impacts on religious expression by school staff going forward. Lozano Smith will provide an update following the Supreme Court's decision, which could be handed down as early as thi...
Supreme Court Sets Aside Student's Cheer Team Suspension, but Confirms Schools' Authority to Regulate Off-Campus Expression
July 2021Number 16In its first student free speech case since 2007, Mahanoy Area School District v. B.L, the United States Supreme Court ruled in favor of a student whose off-campus and off-color social media (Snapchat) posts resulted in her suspension from the school’s junior varsity cheerleading team. The Supreme Court confirmed, however, that schools may still regulate student expression occurring off-campus on a case-by-case basis under the Tinker standard, albeit to a lesser degree...
New Appellate Court Case Holds College Not Required to Hold Live Evidentiary Hearing before Issuing Written Reprimand
March 2021Number 5The California Court of Appeal has held that a community college's issuance of a written reprimand to a student found in violation of the college's policy against harassment does not entitle the student to a live evidentiary hearing. (Knight v. S. Orange Cmty. Coll. Dist. (Feb. 10, 2021) Case No. G058644, 2021 WL 486518.) In reaching its decision, the court distinguished a written reprimand from a suspension or expulsion and discussed a string of recent California cases that...
Public School Districts Cannot be Sued Under California's Unruh Civil Rights Act for Disability Discrimination
December 2020Number 83In a case of first impression, the California Court of Appeal for the First Appellate District, recently held that a school district is not a "business establishment" and therefore cannot be liable for disability discrimination under California's Unruh Civil Rights Act, Civil Code section 51 (Unruh Act). (Brennon B. v. Superior Court of Contra Costa County (Nov. 13, 2020, A157026) _ Cal.App.5th _.) The court in Brennon B. concluded the Unruh Act imposes liability only on...
Supreme Court Keeps DACA in Place, Emphasizing Importance of Procedural Requirements for the Program's Rescission
June 2020Number 51On June 18, 2020, in Department of Homeland Security v. Regents of the University of California (June 18, 2020, Nos. 18-587, 18-588, and 18-589) __ U.S. __[2020 U.S. LEXIS 3254], the United States Supreme Court found unlawful the way in which the Trump Administration sought to rescind the Deferred Action for Childhood Arrivals (DACA) program. Specifically, in the 5-4 majority opinion, the Supreme Court held that the Department of Homeland Security's (DHS) original analysis a...
Status of Federal and State Laws on Student Gender Identify Rights: Federal Lawsuit Seeks to Block Participation of Transgender Athletes and the Office for Civil Rights Weighs In
June 2020Number 48In February of this year, the families of three cisgender female high school athletes (Plaintiffs) filed a federal lawsuit against the Connecticut Interscholastic Athletic Conference (CIAC) and multiple Connecticut school boards over a CIAC policy (Policy) that allows transgender athletes to participate in sports based on their gender identity. The complaint focuses on the biological differences between males and females, stating that the Policy permits athletes "who are mal...
Pair of Cases Uphold School Districts' Limitations on Parent Communications and Access to Campus
April 2020Number 29Parents have legal rights to access school campuses, advocate for their children, and otherwise be involved in their students' education. However, in a pair of recent cases, the U.S. Court of Appeals for the Ninth Circuit, affirmed, again, that these rights are not unlimited, and are subject to restriction if parents cannot adhere to a school's standards of conduct.L.F. v. Lake Washington School District (L.F.)The L.F. case involved a parent who disagreed with the school's ...
Court of Appeal Issues Opinion in School Districts' Favor in Latest Round of P.E. Minutes Litigation
April 2020Number 26In the latest chapter of litigation over physical education (P.E.) minutes, the Court of Appeal recently issued an unpublished opinion in Cal200, Inc. v. Apple Valley Unified School District. The opinion is notable for two reasons. First, the court sets forth a comprehensive analysis of when a party has standing to seek injunctive relief in a matter. Second, the opinion addresses the unique set of circumstances where a party affirmatively requests for a court to issue judgm...
California Supreme Court Sides Against School Districts in State Mandates Case
February 2020Number 11In California School Boards Association v. State of California (CSBA), the California Supreme Court has allowed the Legislature to avoid appropriating new funding to cover the costs of state mandated programs. Instead, the Legislature is now able to point to existing, unrestricted state funding to satisfy the Constitutional requirement that it identify funding for such programs. In light of the court's holding the Legislature may be incentivized to create new state manda...
Court of Appeal Confirms Limits on Severance Payouts to Public Employees
January 2020Number 8In Koenig v. Warner Unified School District (2019) 41 Cal.App.5th 43, the California Court of Appeal added to the legal landscape under Government Code sections 53260 and 53261, which limits severance payouts to public employees, while also addressing the important concepts of severance of illegal contract provisions in the context of an employment termination agreement. Warner Unified School District (District) was represented in this matter by Lozano Smith attorneys Sloa...
Ninth Circuit Addresses Impact Of Dismissals And Settlement Of Due Process Complaints On The IDEA's Administrative Remedy Exhaustion Requirement
October 2019Number 43The recent opinion of the Ninth Circuit Court of Appeals in Paul G. v. Monterey Peninsula Unified School District clarifies that dismissal or settlement of a special education due process hearing inadvance of a hearing and final administrative decision from the Office of Administrative Hearings (OAH), does not satisfy the requirement that a plaintiff exhaust administrative remedies under the Individuals with Disabilities Act (IDEA) before initiating a lawsuit in federal c...
California Supreme Court Holds Firefighting Immunity Under California's Government Claims Act Is A Waivable Affirmative Defense
October 2019Number 45In Quigley v. Garden Valley Fire Protection District, the California Supreme Court rejected the midtrial dismissal of a lawsuit involving a firefighter who suffered severe and permanent injuries after she was run over by a water truck while sleeping at a base camp. The court held that a firefighting immunity under Government Code section 850.4, part of California's Government Claims Act (GCA) (Gov. Code, § 810 et seq.) is an affirmative defense which must be raised b...
The United States Supreme Court Again Confronts The Reach Of The Establishment Clause
September 2019Number 40In American Legion, et al. v. American Humanist Association, et al., the United States Supreme Court, by split decision, ruled that a World War I memorial in Prince George's County, Maryland, consisting of a cross, did not violate the Establishment Clause of the First Amendment of the United States Constitution, which prohibits the government from establishing an official religion or favoring one religion over another.In 1918, residents of Prince George's County formed ...
Supreme Court Says Plaintiffs In Law Enforcement First Amendment Retaliation Cases Must Prove No Probable Cause For Arrest
July 2019Number 31Once a year, deep in the Alaskan wilderness, twelve thousand "snow hippies" exercise their right to party. Law enforcement officers chaperone them at a ratio of ten thousand to seven. At "Arctic Man," not to be confused with "Burning Man," there is a blizzard of skiers, snowmobilers, and bonfires. According to the popular sports blogging network SB Nation, "Arctic Man is a weeklong, booze and fossil-fueled Sledneck Revival bookended around the world's craziest ski race." Fro...
Appellate Court Addresses Evidentiary Issue Impacting Burgeoning Field Of Child Abuse Litigation Against Public Entities
July 2019Number 32In D.Z v. Los Angeles Unified School District, the California Court of Appeal clarified that California laws governing the evidence offered at trial require that courts use a two-step inquiry for all such evidence: First, determine the relevance of the evidence, and second, determine whether the court should exercise its discretion to exclude such evidence. In D.Z., such inquiry was not applied by the trial court when it determined to exclude all evidence that did not involv...
Federal Agencies Withdraw Previously Issued Guidance On The Nondiscriminatory Administration Of School Discipline
February 2019Number 9The United States Department of Education's Office for Civil Rights (OCR) and Department of Justice (DOJ) have withdrawn their 2014 joint Dear Colleague Letter (DCL) on Nondiscriminatory Administration of School Discipline, which provided recommendations and guidance on remediating disproportionate student discipline of minority and disabled students. The stated justification for the agencies' reversal is that implementation of the 2014 DCL resulted in schools easing up o...
New OCR Case Processing Manual - Significant Changes For Public School Civil Rights Enforcement
January 2019Number 5The U.S. Department of Education's Office for Civil Rights (OCR) made a second round of revisions to its Case Processing Manual (CPM), effective November 19, 2018. The CPM outlines the procedures OCR uses to investigate and resolve complaints under the civil rights laws which it enforces. The CPM last underwent revisions in March of 2015 and March of 2018. The most recent changes are wide ranging and include how OCR will evaluate, investigate and resolve complaints. Key re...
New Law Entitles Students To Wear Tribal Regalia Or Recognized Objects Of Religious, Ceremonial Or Cultural Significance As An Adornment At School Graduation Ceremonies
January 2019Number 1Effective January 1 2019, a new law in California establishes students' right to wear tribal regalia or recognized objects of religious or cultural significance as an adornment at school graduation ceremonies.BackgroundGenerally speaking, federal and state law permits school districts, county offices of education and charter schools (local educational agencies, or LEAs) to develop and enforce reasonable dress code policies. Existing law has been understood to permit LEAs t...
New Law Limits School District Collection of Debts from Students and Penalties for Debts
December 2018Number 85The California Legislature recently passed Assembly Bill (AB) 1974, which places new prohibitions and restrictions on the collection of debt owed by parents to public schools, including state special schools and charter schools, and school districts, including county offices of education (all referred to herein as school districts). The new law prohibits the practice of punishing students for the failure of their parents to pay debt owed to the school district, adds addi...
Ninth Circuit Upholds California's Voters' Choice Act
September 2018Number 45The 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 cycle and b...
School Surveillance Video May be a Student Record, Triggering FERPA Obligations
August 2018Number 37School 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 an informal guidance letter, the director of student privacy policy with the U.S. Department of Education's Family Policy Compliance Office (FPCO) concluded that a school surveillance video depicting eight students who were involved in a hazing i...
Legislature Stops Local Agencies from Limiting the Presentation of Childhood Sexual Abuse Claims
July 2018Number 33In 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.BackgroundCode of Civil Procedure section 340.1 allows a lawsuit for childhood sexual abuse to be filed within the later of eight years of the date t...
Lawmakers Extend Limits on Disruption and Defiance Discipline, Expand Use of Uniform Complaint Procedures
July 2018Number 31State 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 DefianceAB 1808 eliminated the...
FDA Approves Marijuana-Based Drug for Pediatric Epilepsy
July 2018Number 32Schools 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 Administr...
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 ...
Court of Appeal Clarifies Issues Impacting Student Expulsions for Sexual Battery
May 2018Number 19The 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 expe...
California Attorney General Publishes Guide on the Rights of Undocumented Immigrant Students and Families
April 2018Number 17The 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 Deferred Act...
Local Agencies May Enact Presentation Requirements for Childhood Sexual Abuse Claims, Court Rules
April 2018Number 15UPDATE: Senate Bill 1053 was signed into law on July 20, 2018, and amended Government Code section 935 to explicitly exempt childhood sexual abuse claims from the claim presentation requirements of a local claim procedure. (See 2018 CNB No. 33) On July 17, 2019, the California Supreme Court issued an order transferring Big Oak Flat-Groveland Unified School District v. Superior Court back to the Fifth District Court of Appeal, with directions to vacate its decision and reco...
Immigration Enforcement Actions in California
March 2018 Number 9 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...
Student Walkouts: What Your District Needs to Know
February 2018 Number 7 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...
Student Athlete's Right to Kneel during National Anthem Likely Protected by the First Amendment
January 2018 Number 2 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. Background During the first game of the 2017 varsit...
School District Need Not Accommodate Coach's Request to Publicly Pray at Football Games
October 2017 Number 58 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...
Rescission of DACA: What Public Agencies Need to Know
October 2017 Number 57 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...
California Supreme Court Denies Untimely Childhood Sexual Abuse Damages Claim
September 2017 Number 53 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...
New School Funding Scheme Does Not Eliminate Immunity From Federal Damage Claims
August 2017 Number 46 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...
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. _...
OCR Issues New Instructions on Transgender Student Complaints
July 2017 Number 36 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...
Federal Court Upholds Texas School Board's Practice of Student Invocations at School Board Meetings
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 hopes of s...
Amidst Nationwide Media Coverage, U.S. Departments of Education and Justice Issue Joint Guidance Regarding Transgender Student Rights in Schools
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
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
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
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
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
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
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"
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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
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 7...
Office for Civil Rights Issues Guidance On Sexual Violence In Schools
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
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 wh...
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 T. by and through L.T. v. Baldo et al. (9th Cir. 2019) 798 Fed.Appx. 80, Mr. Simmons successfully argued that a dozen school administrators and employees were entitled to qualified immunity for Fourth Amendment and substantiative due process claims alleging arising from their implementation of restraints provided for under a student’s IEP.
- 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 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.
- In N. v. Morgan Hill Unified School District (2018) 20 Cal.App.5th 607, Mr. Simmons successfully defeated a petition for writ of administrative mandate, which sought to reverse an expulsion of a student who repeatedly sexually assaulted a classmate, and later prevailed on appeal, obtaining the first published appellate opinion to clarify the evidentiary rules and standard of review for expulsion proceedings.
- In T. by and through L.T. v. Dry Creek Joint Elementary School District et al. (E.D. Cal. June 20, 2017), Mr. Simmons successfully argued for the dismissal of education-related section 504 and ADA claims due to application of statute of limitations, among other successful arguments.
- In Koenig v. Warner Unified School District (2019) 41 Cal.App.5th 43, Mr. Simmons successfully argued that the health benefits provision of employment termination agreement violated statutory limitation on noncash benefits paid upon termination of local agency administrators' contracts and that the plaintiff was otherwise not entitled the relief sought.
- In 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.
- In McGuire v. Roseville Joint Union High School District (E.D. Cal. 2022) 2022 WL 4096014 and 2022 WL 4473391, Mr. Simmons successfully moved to dismiss a complaint alleging claims against a school district in relation to the district’s implementation of the State’s COVID-19 face covering requirement and related issues.
- 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.
- 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.
- Simmons has also prepared many amicus curiae briefs on behalf of school district, state and national school and municipality associations, including briefs before the California Supreme Court, the Ninth Circuit Court of Appeals, federal district courts, and over a dozen of such briefs in cases before the California Court of Appeal, on topic including employee speech, public finance, state mandates, student disability rights, charter schools, and state mandates.