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Tuesday, October 2, 2012
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Monday, August 20, 2012
The LEA’s Rights and the Student’s Obligations Regarding Service Animals
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
When the topic of service animals arises we generally think of the rights of the individual with a disability. It’s widely known that Title II of the American with Disabilities Act (“ADA”) establishes the right for persons with disabilities to utilize service animals. Title II requires public entities, including schools, to permit use of a dog or miniature horse to do work or perform tasks for the benefit of an individual with a physical, sensory, psychiatric, intellectual or other mental disability, provided that the animal is required because of the individual’s disability, under the control of the individual, and housebroken. Notably, the student is allowed to take the animal in all areas of the campus where the public is normally allowed to go and allowed to take the service animal on field trips and school sponsored extra-curricular activities. A fact that is less commonly known is that LEAs (school districts, charters schools and county offices of education) have rights and students have obligations when it comes to service animals.
Right of Determination
In establishing whether an animal is a service animal, while the LEA is not allowed to ask for documentation or proof of training, Title 28 Code of Federal Regulations (“C.F.R.”) Section 35.136 specifies that a public entity may ask (1) whether the animal is required because of a disability; and (2) what work or task the animal has been trained to perform in determining whether an animal is a service animal.
and Adam Newman, Partner
Cerritos Office
When the topic of service animals arises we generally think of the rights of the individual with a disability. It’s widely known that Title II of the American with Disabilities Act (“ADA”) establishes the right for persons with disabilities to utilize service animals. Title II requires public entities, including schools, to permit use of a dog or miniature horse to do work or perform tasks for the benefit of an individual with a physical, sensory, psychiatric, intellectual or other mental disability, provided that the animal is required because of the individual’s disability, under the control of the individual, and housebroken. Notably, the student is allowed to take the animal in all areas of the campus where the public is normally allowed to go and allowed to take the service animal on field trips and school sponsored extra-curricular activities. A fact that is less commonly known is that LEAs (school districts, charters schools and county offices of education) have rights and students have obligations when it comes to service animals.
Right of Determination
In establishing whether an animal is a service animal, while the LEA is not allowed to ask for documentation or proof of training, Title 28 Code of Federal Regulations (“C.F.R.”) Section 35.136 specifies that a public entity may ask (1) whether the animal is required because of a disability; and (2) what work or task the animal has been trained to perform in determining whether an animal is a service animal.
Wednesday, August 15, 2012
Senate Bill 1016 Places Charter Schools First in Priority for Notification and Acquisition of Certain Surplus Real Property
By Constance Schwindt, Partner
Lindsay Thorson, Senior Associate
and Andreas Chialtas, Partner
Cerritos Office
Existing law requires school districts that have declared property surplus and have passed a resolution of the intent to sell or lease the surplus property to first offer the property to certain entities specified in the Education Code and Government Code, such as cities, counties, recreation departments, special education or child care providers, depending on the type of property. The recent passage of Senate Bill 1016 ("SB 1016") alters the existing law by placing charter schools first in priority for notification and acquisition of surplus real property if certain criteria are met.
This new legislation now gives charter schools first priority over other entities if both of the following circumstances exist: (1) if the subject property was designed to provide direct instruction or instructional support; and (2) the charter school has submitted a written request to a school district to receive notification of surplus property for sale or lease. If these two conditions are met, the school district must offer the property to the charter school before any other entity.
Lindsay Thorson, Senior Associate
and Andreas Chialtas, Partner
Cerritos Office
Existing law requires school districts that have declared property surplus and have passed a resolution of the intent to sell or lease the surplus property to first offer the property to certain entities specified in the Education Code and Government Code, such as cities, counties, recreation departments, special education or child care providers, depending on the type of property. The recent passage of Senate Bill 1016 ("SB 1016") alters the existing law by placing charter schools first in priority for notification and acquisition of surplus real property if certain criteria are met.
This new legislation now gives charter schools first priority over other entities if both of the following circumstances exist: (1) if the subject property was designed to provide direct instruction or instructional support; and (2) the charter school has submitted a written request to a school district to receive notification of surplus property for sale or lease. If these two conditions are met, the school district must offer the property to the charter school before any other entity.
Monday, August 13, 2012
Court of Appeal Rejects Los Angeles Unified School District Settlement, Upholds Seniority-based Layoff Requirements
By Cathie Fields, Senior Associate
Irvine Office
The California Court of Appeal has just overturned the consent decree entered into by LAUSD and student-plaintiffs who sued the district in 2010 to prevent implementation of seniority-based certificated layoffs. In this much-publicized case, students at three schools alleged their constitutional equal protection rights were violated because of the disproportionate effect of the seniority-based reductions on their schools.
The parties ultimately negotiated a settlement in the form of a consent decree, which identified a “targeted subset” of up to 45 schools in LAUSD that were ranked in deciles 1, 2 or 3 in the API, had high teacher turnover, and demonstrated academic growth, and schools identified as likely to be disproportionately affected by teacher turnover. Under the settlement, all teachers at the 45 designated schools would be protected from layoff, regardless of their seniority, for three years.
UTLA opposed the settlement and appealed the trial court’s approval of the consent decree. The Court of Appeal overturned the trial court’s decision on the basis that the consent decree violated teachers’ seniority rights under the Education Code and the collective bargaining agreement. UTLA and its members, the court held, had the right to a hearing on the merits of the lawsuit.
In LAUSD and other large districts, the equal protection issue is likely to remain a focus of teachers’ unions and advocacy groups. AALRR will be following future developments in this case. For the time being, consistent with our prior advice, proper application of the statutory bases for deviating from strict seniority layoffs should be continued.
To read our more detailed Alert on the Reed v. United Teachers Los Angeles Court of Appeal decision, click HERE.
Irvine Office
The California Court of Appeal has just overturned the consent decree entered into by LAUSD and student-plaintiffs who sued the district in 2010 to prevent implementation of seniority-based certificated layoffs. In this much-publicized case, students at three schools alleged their constitutional equal protection rights were violated because of the disproportionate effect of the seniority-based reductions on their schools.
The parties ultimately negotiated a settlement in the form of a consent decree, which identified a “targeted subset” of up to 45 schools in LAUSD that were ranked in deciles 1, 2 or 3 in the API, had high teacher turnover, and demonstrated academic growth, and schools identified as likely to be disproportionately affected by teacher turnover. Under the settlement, all teachers at the 45 designated schools would be protected from layoff, regardless of their seniority, for three years.
UTLA opposed the settlement and appealed the trial court’s approval of the consent decree. The Court of Appeal overturned the trial court’s decision on the basis that the consent decree violated teachers’ seniority rights under the Education Code and the collective bargaining agreement. UTLA and its members, the court held, had the right to a hearing on the merits of the lawsuit.
In LAUSD and other large districts, the equal protection issue is likely to remain a focus of teachers’ unions and advocacy groups. AALRR will be following future developments in this case. For the time being, consistent with our prior advice, proper application of the statutory bases for deviating from strict seniority layoffs should be continued.
To read our more detailed Alert on the Reed v. United Teachers Los Angeles Court of Appeal decision, click HERE.
Monday, August 6, 2012
Denying a Request for an IEE Without Filing for Due Process
By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
and Geneva Englebrecht, Associate
Cerritos Office
Pursuant to the Individuals with Disabilities in Education Act (“IDEA”), Title 34 Code of Federal Regulations (“C.F.R.”) Section 300.502(b)(5), a student is entitled to an independent educational evaluation (“IEE”) at public expense when the public agency has conducted an evaluation with which the parent disagrees. The IDEA identifies two choices for a local education agency (“LEA”), i.e., school district or county office of education, when it receives a request for an IEE at public expense when the parent disagrees with an evaluation conducted by the LEA. The LEA must, without delay, either fund the requested IEE or deny the IEE and file for hearing to defend the appropriateness of the LEA’s assessment. While 34 C.F.R Section 300.502 fails to specify a time limit in which the parent must request the IEE after the LEA conducted the evaluation, 34 C.F.R. Section 300.507(a)(2) and California’ Education Code imposes a two-year statute of limitations on a parent or LEA’s right to file a due process complaint generally.
Case law appears to support the position that the two-year statute of limitations applies to requests for an IEE. In a 2008 Georgia case involving the Atlanta Public Schools, Administrative Law Judge (“ALJ”) La Ronda D. Barnes found that a student’s request for an IEE which was made three years after the Atlanta Public Schools conducted its assessment, was “untimely, as it was not made within a reasonable time after [the district] conducted its evaluation and is beyond the two-year statute of limitations". ALJ Barnes went on to hold that the student was not entitled to an IEE at public expense and any request for an IEE based on the Atlanta Public Schools disputed evaluation was barred by the statute of limitations. ALJ Barnes granted the school district’s motion for summary judgment based on the statute of limitations. (Student v. Atlanta Public Schools; 51 IDELR 29 (2008).
Case law appears to support the position that the two-year statute of limitations applies to requests for an IEE. In a 2008 Georgia case involving the Atlanta Public Schools, Administrative Law Judge (“ALJ”) La Ronda D. Barnes found that a student’s request for an IEE which was made three years after the Atlanta Public Schools conducted its assessment, was “untimely, as it was not made within a reasonable time after [the district] conducted its evaluation and is beyond the two-year statute of limitations". ALJ Barnes went on to hold that the student was not entitled to an IEE at public expense and any request for an IEE based on the Atlanta Public Schools disputed evaluation was barred by the statute of limitations. ALJ Barnes granted the school district’s motion for summary judgment based on the statute of limitations. (Student v. Atlanta Public Schools; 51 IDELR 29 (2008).
Wednesday, August 1, 2012
The Brown Act and State Funding: “To Post, or Not to Post? That is the Question…”
By Marisa Lincoln, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On June 27, 2012, Governor Brown signed Assembly Bill 1464, the Budget Act of 2012 (“Budget Act”), and the Education Finance Budget Trailer Bill, Senate Bill 1016 (“Trailer Bill”). The Budget Act included a suspension of mandates concerning a body of law that is near and dear to the heart of public agencies, the Brown Act.
The Brown Act requires legislative bodies to prepare and post an agenda containing brief general descriptions of each item of business to be transacted or discussed in a place “freely accessible to the public” and on the agency’s website at least 72 hours prior to the meeting. (Government Code section 54954.2(a).) Agendas must also provide for an opportunity for the public to comment on matters that are within the subject matter jurisdiction of the legislative body, with certain exceptions. (Government Code section 54954.3(a).) The Brown Act also requires, prior to holding a closed session, that each item to be discussed in closed session be announced in open session. (Government Code section 54957.7(a).) In addition, formal action taken in closed session must be reported out in open session, and copies of final documents that were approved in closed session must be given to any person who submits a written request within specified timelines or to a person who has made a standing request for such documents. (Government Code section 54957.7(b).)
The Budget Act, as a cost savings measure, has suspended certain Brown Act mandates with regard to agenda preparation and posting and closed session activities requirements. Proposition 1A, a ballot initiative approved by voters in 2004, requires the “State to fund legislative mandates on local governments or suspend their operation.” In other words, if the State does not reimburse public agencies for compliance with legislative mandates, then there is no requirement for those public entities not receiving such reimbursement to follow those mandates. SF Gate has reported that the suspension of these mandates will result in a $96 million savings for the State.
and Chet Quaide, Partner
Pleasanton Office
On June 27, 2012, Governor Brown signed Assembly Bill 1464, the Budget Act of 2012 (“Budget Act”), and the Education Finance Budget Trailer Bill, Senate Bill 1016 (“Trailer Bill”). The Budget Act included a suspension of mandates concerning a body of law that is near and dear to the heart of public agencies, the Brown Act.
The Brown Act requires legislative bodies to prepare and post an agenda containing brief general descriptions of each item of business to be transacted or discussed in a place “freely accessible to the public” and on the agency’s website at least 72 hours prior to the meeting. (Government Code section 54954.2(a).) Agendas must also provide for an opportunity for the public to comment on matters that are within the subject matter jurisdiction of the legislative body, with certain exceptions. (Government Code section 54954.3(a).) The Brown Act also requires, prior to holding a closed session, that each item to be discussed in closed session be announced in open session. (Government Code section 54957.7(a).) In addition, formal action taken in closed session must be reported out in open session, and copies of final documents that were approved in closed session must be given to any person who submits a written request within specified timelines or to a person who has made a standing request for such documents. (Government Code section 54957.7(b).)
The Budget Act, as a cost savings measure, has suspended certain Brown Act mandates with regard to agenda preparation and posting and closed session activities requirements. Proposition 1A, a ballot initiative approved by voters in 2004, requires the “State to fund legislative mandates on local governments or suspend their operation.” In other words, if the State does not reimburse public agencies for compliance with legislative mandates, then there is no requirement for those public entities not receiving such reimbursement to follow those mandates. SF Gate has reported that the suspension of these mandates will result in a $96 million savings for the State.
Wednesday, July 18, 2012
Trends In Student Discipline Reform May Increase Pressure On Schools
By Bryan Martin, Senior Associate
Fresno Office
and Chet Quaide, Partner
Pleasanton Office
A number of bills pending in the California Legislature reflect action by student advocates to reform approaches to student discipline that many believe lack common sense and fairness.
This push for “educational equity” and a more “thoughtful response to student misconduct” stems from studies indicating that exclusionary discipline is largely ineffective at increasing school safety or improving the behavior of disciplined students. Advocates also point to studies indicating that students of color are disproportionately referred for discipline: for example, it is reported that African American students are two times more likely than their Caucasian peers to be suspended.
The subject bills generally aim to modify existing student discipline policies and practices that are viewed as rigid or reactionary so that administrators have greater discretion in certain discipline scenarios, and to motivate educators to act proactively with a focus on prevention.
Fresno Office
and Chet Quaide, Partner
Pleasanton Office
A number of bills pending in the California Legislature reflect action by student advocates to reform approaches to student discipline that many believe lack common sense and fairness.
This push for “educational equity” and a more “thoughtful response to student misconduct” stems from studies indicating that exclusionary discipline is largely ineffective at increasing school safety or improving the behavior of disciplined students. Advocates also point to studies indicating that students of color are disproportionately referred for discipline: for example, it is reported that African American students are two times more likely than their Caucasian peers to be suspended.
The subject bills generally aim to modify existing student discipline policies and practices that are viewed as rigid or reactionary so that administrators have greater discretion in certain discipline scenarios, and to motivate educators to act proactively with a focus on prevention.
Friday, July 13, 2012
May A Public Entity Reject An Unbalanced Bid?
By Joe Rossini, Senior Associate
and Hugh Lee, Partner
Cerritos Office
Recently, a number of the Firm’s local public entity clients have contacted us with questions regarding the issue of “unbalanced bids.” These clients generally want to know when they should reject an unbalanced bid and the guidelines for evaluating unbalanced bids. There is little California legal authority on the subject. Typically, in the absence of California authority, this state’s courts will look to both federal procurement laws and regulations, and decisions by courts in other states.
Section 15.814, 48 Code of Federal Regulations, defines a “mathematically unbalanced” bid as a bid “based on prices which are significantly less than cost for some contract line items and significantly overstated in relation to cost for others.” A bidder will typically submit an unbalanced bid with either or both of two goals: 1) To manipulate the bidding process in its favor to win award of the contract, even though the public entity would ultimately pay a higher total price for the goods or services; and 2) To improve their cash flow by front loading a bid’s payment schedule.
and Hugh Lee, Partner
Cerritos Office
Recently, a number of the Firm’s local public entity clients have contacted us with questions regarding the issue of “unbalanced bids.” These clients generally want to know when they should reject an unbalanced bid and the guidelines for evaluating unbalanced bids. There is little California legal authority on the subject. Typically, in the absence of California authority, this state’s courts will look to both federal procurement laws and regulations, and decisions by courts in other states.
Section 15.814, 48 Code of Federal Regulations, defines a “mathematically unbalanced” bid as a bid “based on prices which are significantly less than cost for some contract line items and significantly overstated in relation to cost for others.” A bidder will typically submit an unbalanced bid with either or both of two goals: 1) To manipulate the bidding process in its favor to win award of the contract, even though the public entity would ultimately pay a higher total price for the goods or services; and 2) To improve their cash flow by front loading a bid’s payment schedule.
Monday, July 9, 2012
Pending Legislation Could Limit Access to Individuals’ Social Media Accounts by Employers, Colleges, and Universities
By Elizabeth Hearey, Senior Counsel
and Chet Quaide, Partner
Pleasanton Office
As an investigative device, some employers, colleges, and universities have been asking employees, applicants for employment, and students for passwords to their social media accounts. Others have asked employees to sit down with managers to review their social media content or fully print out their social media pages. The practice remains a hot topic in the news because social media accounts, such as Facebook and Twitter, often contain highly personal information which individuals want to keep out of the eye of employers or school officials. Will these investigative practices be allowed to continue in California?
Recently, there has been a push to pass both federal and state laws to deny access to private information on social network accounts. If SB 1349 and AB 1844 pass, California will be among the first states to deny employers and postsecondary educational institutions access to these accounts.
and Chet Quaide, Partner
Pleasanton Office
As an investigative device, some employers, colleges, and universities have been asking employees, applicants for employment, and students for passwords to their social media accounts. Others have asked employees to sit down with managers to review their social media content or fully print out their social media pages. The practice remains a hot topic in the news because social media accounts, such as Facebook and Twitter, often contain highly personal information which individuals want to keep out of the eye of employers or school officials. Will these investigative practices be allowed to continue in California?
Recently, there has been a push to pass both federal and state laws to deny access to private information on social network accounts. If SB 1349 and AB 1844 pass, California will be among the first states to deny employers and postsecondary educational institutions access to these accounts.
Friday, July 6, 2012
Special Education Students in Advanced Placement Classes
By Geneva Englebrecht, Associate
and Constance Taylor, Partner
Cerritos Office
and Constance Taylor, Partner
Cerritos Office
When a student is in an accelerated program for gifted and talented students, it is important to remember that qualification for advanced placement (“AP”) does not mean the student may not also qualify for special education or be identifiable as a person with a disability. When the topic of special education students in AP classes arises, there are two frequently asked questions that we will explore, below.
(1) When a parent requests a special education assessment of a student who is struggling in honors or AP classes, must the District assess, or can the District recommend that the student return to his or her general education non-AP classes?
The Individuals with Disabilities Education Act (“IDEA”) requires a local educational agency (“LEA”) to assess all areas of suspected disability and conduct an individualized education program (“IEP”) meeting within 60 days of receiving parental consent for the assessment. (Cal. Educ. Code §§ 56302, 56302.1(a).) When a gifted student’s parent requests a special education assessment, the District should employ assessment procedures in accordance with the IDEA. It is essential, especially when working with a gifted student, to be mindful not only of any academic deficits, or lack thereof, but to consider whether the student has a physical or mental impairment that may cause the student to require special education.
Tuesday, July 3, 2012
Certificated Employee is Entitled to Attorney Fees in Dismissal Process if Accusation is Withdrawn Following Initial Decision to Proceed to Hearing
By Paul McGlocklin, Associate
Riverside Office
and Mark Bresee, Partner
Irvine Office
In another blow to California school employers, a Court of Appeal has ruled that in a certificated dismissal or suspension proceeding, the employee is entitled to an award of expenses and attorney’s fees if the district withdraws its accusation against the employee after deciding to proceed to hearing, but before the hearing starts. The ruling clarifies that where an accusation is withdrawn it necessarily follows that the Commission on Professional Competence rule that the employee “should not be dismissed or suspended” within the meaning of Education Code section 44944(c)(1). Such a ruling entitles the employee to all expenses incurred defending against the accusation, including attorney’s fees.
In Boliou v. Stockton Unified School District the Governing Board of the Stockton Unified School District initiated dismissal proceedings against David Boliou, a classroom teacher who allegedly used duct tape to cover a talkative student’s mouth. In response to the charges filed against him, Boliou demanded a hearing pursuant to Education Code section 44943. Rather than drop the charges, the Governing Board decided to proceed and set a hearing before a Commission on Professional Competence as provided in Education Code section 44944. Following a number of unfavorable pre-hearing rulings, the Governing Board voted to dismiss the accusation one week before the hearing. The Commission on Professional Competence allowed the dismissal, but Boliou objected on the grounds that he was entitled to a ruling that he should not be dismissed (thus entitling him to expenses and attorney’s fees under Education Code section 44944(e)(2)). The Commission on Professional Competence declined to do so, stating instead that the accusation simply be dismissed.
Riverside Office
and Mark Bresee, Partner
Irvine Office
In another blow to California school employers, a Court of Appeal has ruled that in a certificated dismissal or suspension proceeding, the employee is entitled to an award of expenses and attorney’s fees if the district withdraws its accusation against the employee after deciding to proceed to hearing, but before the hearing starts. The ruling clarifies that where an accusation is withdrawn it necessarily follows that the Commission on Professional Competence rule that the employee “should not be dismissed or suspended” within the meaning of Education Code section 44944(c)(1). Such a ruling entitles the employee to all expenses incurred defending against the accusation, including attorney’s fees.
In Boliou v. Stockton Unified School District the Governing Board of the Stockton Unified School District initiated dismissal proceedings against David Boliou, a classroom teacher who allegedly used duct tape to cover a talkative student’s mouth. In response to the charges filed against him, Boliou demanded a hearing pursuant to Education Code section 44943. Rather than drop the charges, the Governing Board decided to proceed and set a hearing before a Commission on Professional Competence as provided in Education Code section 44944. Following a number of unfavorable pre-hearing rulings, the Governing Board voted to dismiss the accusation one week before the hearing. The Commission on Professional Competence allowed the dismissal, but Boliou objected on the grounds that he was entitled to a ruling that he should not be dismissed (thus entitling him to expenses and attorney’s fees under Education Code section 44944(e)(2)). The Commission on Professional Competence declined to do so, stating instead that the accusation simply be dismissed.
Friday, June 29, 2012
US Supreme Court Requires Unions to Receive Consent from Non-Members for Special Fee Assessments and to Provide Extra ‘Hudson Notice’ for Special Fees
By Jabari Willis, Associate
Cerritos Office
and Mark Bresee, Partner
Irvine Office
In Knox v. Service Employees International Union, Local 1000 the United States Supreme Court held that California unions must receive "opt-in" consent of non-members before charging special fees for political purposes expenses, instead of the regular "opt out" practice. The Supreme Court also held that unions must provide an additional "Hudson notice" (a notice to service fee payers of the "fair share" amount and means of challenging the amount) -regarding the special assessment or dues increase.
The suit began in 2005 when former Governor Schwarzenegger requested a special election to consider several propositions, including Proposition 75, which required unions to obtain employees' affirmative consent before charging them fees to be used for political purposes. California unions, including SEIU Local 1000 (SEIU), opposed Proposition 75, and imposed a special assessment on its bargaining unit members to fight the proposition. The special assessment, named the "Emergency Temporary Assessment to Build a Political Fight-Back Fund," increased due and fees to 1.25% of gross salary (from 1%) and eliminated the existing fees and dues cap of $45 per month.
Cerritos Office
and Mark Bresee, Partner
Irvine Office
In Knox v. Service Employees International Union, Local 1000 the United States Supreme Court held that California unions must receive "opt-in" consent of non-members before charging special fees for political purposes expenses, instead of the regular "opt out" practice. The Supreme Court also held that unions must provide an additional "Hudson notice" (a notice to service fee payers of the "fair share" amount and means of challenging the amount) -regarding the special assessment or dues increase.
The suit began in 2005 when former Governor Schwarzenegger requested a special election to consider several propositions, including Proposition 75, which required unions to obtain employees' affirmative consent before charging them fees to be used for political purposes. California unions, including SEIU Local 1000 (SEIU), opposed Proposition 75, and imposed a special assessment on its bargaining unit members to fight the proposition. The special assessment, named the "Emergency Temporary Assessment to Build a Political Fight-Back Fund," increased due and fees to 1.25% of gross salary (from 1%) and eliminated the existing fees and dues cap of $45 per month.
Wednesday, June 27, 2012
The Legal Parameters of College and University Free Speech Policies
By Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
Public colleges and universities across the country are frequently faced with issues involving free speech activities on their campuses. Some campuses permit students and non-students to engage in free speech activities (such as gathering signatures on petitions or speaking with students about religious, political or social issues of interest) anywhere on campus without restriction. More often, campuses set limitations that apply to everyone or at least to non-students, such as requiring that speakers engage in speech activities in a designated free speech area or zone and to give prior notice of their intent to use the area.
The use of free speech areas and notice requirements are often challenged as being unconstitutional restrictions on free speech rights, and may become more frequent as elections approach. For example, on June 12, 2012, a federal district court in Ohio found that a policy at the University of Cincinnati, which required that all "demonstrations, picketing, and rallies" be conducted in a designated free speech area and that speakers provide notice of such use at least five working days in advance was unconstitutional as applied to students because: (1) the notice requirement was not limited to regulation of large demonstrations or those using sound amplification, as examples, but was broadly apply to any demonstration, picket or rally and thus placed an unwarranted burden on the exercise of free speech; (2) the policy imposed conflicting notice requirements and failed to provide objective criteria for determining whether an expressive activity constitutes a demonstration, picket or rally; (3) the University provided no explanation of a compelling interest to restrict all demonstrations, picketing, and rallies to the free speech area and only speculative benefits of the notice requirement; and (4) the vague aspects of the policy presented university officials with the opportunity for arbitrary or discriminatory enforcement. (See decision here)
and Aaron O'Donnell, Partner
Cerritos Office
Public colleges and universities across the country are frequently faced with issues involving free speech activities on their campuses. Some campuses permit students and non-students to engage in free speech activities (such as gathering signatures on petitions or speaking with students about religious, political or social issues of interest) anywhere on campus without restriction. More often, campuses set limitations that apply to everyone or at least to non-students, such as requiring that speakers engage in speech activities in a designated free speech area or zone and to give prior notice of their intent to use the area.
The use of free speech areas and notice requirements are often challenged as being unconstitutional restrictions on free speech rights, and may become more frequent as elections approach. For example, on June 12, 2012, a federal district court in Ohio found that a policy at the University of Cincinnati, which required that all "demonstrations, picketing, and rallies" be conducted in a designated free speech area and that speakers provide notice of such use at least five working days in advance was unconstitutional as applied to students because: (1) the notice requirement was not limited to regulation of large demonstrations or those using sound amplification, as examples, but was broadly apply to any demonstration, picket or rally and thus placed an unwarranted burden on the exercise of free speech; (2) the policy imposed conflicting notice requirements and failed to provide objective criteria for determining whether an expressive activity constitutes a demonstration, picket or rally; (3) the University provided no explanation of a compelling interest to restrict all demonstrations, picketing, and rallies to the free speech area and only speculative benefits of the notice requirement; and (4) the vague aspects of the policy presented university officials with the opportunity for arbitrary or discriminatory enforcement. (See decision here)
Wednesday, June 20, 2012
What Should You Do If Your Personnel Investigation Comes Down to a “He Said, She Said” Situation?
By Donna Matties, Partner
Sacramento Office
As an attorney who frequently conducts personnel investigations for clients, I often encounter situations where all that I have is a "he said, she said" situation without any other witnesses. This hurdle does not mean that I do not investigate the matter thoroughly. It is fairly well known that all investigations need to be prompt, thorough and effective. Personnel investigations may be eventually reviewed by the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) if a complaint is brought to them. If you are involved in litigation over a personnel issue, your investigation may be reviewed by a judge or jury. Given the stakes involved, the lack of witnesses may mean that it is more crucial to make a determination on who is more credible in the particular matter.
In addition, I also encounter complainants who indicate that nothing was done regarding a prior personnel complaint because there were no witnesses, so everybody involved was just told to watch their step in the future. Unfortunately, as is often the case, the inappropriate behavior continues and you are left with a matter that now has escalated in a variety of ways. In some cases, you cannot proceed with discipline when your investigation reveals that you are dealing with a case of one person’s word against another’s. However, it is usually less risky to make such disciplinary decisions based upon an investigation where a credibility analysis is prepared. This short review will give you an idea of how that can be accomplished.
Sacramento Office
As an attorney who frequently conducts personnel investigations for clients, I often encounter situations where all that I have is a "he said, she said" situation without any other witnesses. This hurdle does not mean that I do not investigate the matter thoroughly. It is fairly well known that all investigations need to be prompt, thorough and effective. Personnel investigations may be eventually reviewed by the Department of Fair Employment and Housing (DFEH) and the Equal Employment Opportunity Commission (EEOC) if a complaint is brought to them. If you are involved in litigation over a personnel issue, your investigation may be reviewed by a judge or jury. Given the stakes involved, the lack of witnesses may mean that it is more crucial to make a determination on who is more credible in the particular matter.
In addition, I also encounter complainants who indicate that nothing was done regarding a prior personnel complaint because there were no witnesses, so everybody involved was just told to watch their step in the future. Unfortunately, as is often the case, the inappropriate behavior continues and you are left with a matter that now has escalated in a variety of ways. In some cases, you cannot proceed with discipline when your investigation reveals that you are dealing with a case of one person’s word against another’s. However, it is usually less risky to make such disciplinary decisions based upon an investigation where a credibility analysis is prepared. This short review will give you an idea of how that can be accomplished.
Thursday, June 14, 2012
Final Emergency Diastat Regulations in May 2012
By Adam Newman, Partner
and Geneva Englebrecht, Associate
Cerritos Office
Background
On January 6, 2009, a California Superior Court judge ruled that licensed nurses (i.e. credentialed school nurses, registered nurses or licensed vocational nurses) must be used to administer insulin to students. In so doing, the judge rejected the California Department of Education’s ("CDE") position that trained classroom staff (non-nurses) can be used to administer insulin. The judge's decision left school districts, SELPAs, and county offices of education throughout California wondering if they were now required to hire more nurses to administer insulin and perhaps other medications like Diastat.
As to Diastat, in response to the Court's 2009 ruling and subsequent appeals which remain unresolved, the California legislature enacted Education Code Section 49414.7, which took effect January 1, 2012. The legislation recognized that approximately one-half of school districts do not have a school nurse and that students with epilepsy who suffered seizures at school were compromised without access to emergency medical assistance. The intent of this legislation was to provide volunteer school employees with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. Education Code Section 49414.7 allows school districts to provide epilepsy anti-seizure medication, diazepam rectal gel, commonly referred to as Diastat, as emergency medical assistance in the absence of a school nurse or other medical personnel, to assist a student with epilepsy who is suffering from a seizure and where the administration has been sanctioned by the student's parents in writing. The decision of a school district to offer training to its staff is voluntary as is the staff member's participation in the training.
and Geneva Englebrecht, Associate
Cerritos Office
Background
On January 6, 2009, a California Superior Court judge ruled that licensed nurses (i.e. credentialed school nurses, registered nurses or licensed vocational nurses) must be used to administer insulin to students. In so doing, the judge rejected the California Department of Education’s ("CDE") position that trained classroom staff (non-nurses) can be used to administer insulin. The judge's decision left school districts, SELPAs, and county offices of education throughout California wondering if they were now required to hire more nurses to administer insulin and perhaps other medications like Diastat.
As to Diastat, in response to the Court's 2009 ruling and subsequent appeals which remain unresolved, the California legislature enacted Education Code Section 49414.7, which took effect January 1, 2012. The legislation recognized that approximately one-half of school districts do not have a school nurse and that students with epilepsy who suffered seizures at school were compromised without access to emergency medical assistance. The intent of this legislation was to provide volunteer school employees with voluntary emergency medical training to provide emergency medical assistance to pupils with epilepsy suffering from seizures. Education Code Section 49414.7 allows school districts to provide epilepsy anti-seizure medication, diazepam rectal gel, commonly referred to as Diastat, as emergency medical assistance in the absence of a school nurse or other medical personnel, to assist a student with epilepsy who is suffering from a seizure and where the administration has been sanctioned by the student's parents in writing. The decision of a school district to offer training to its staff is voluntary as is the staff member's participation in the training.
Friday, June 8, 2012
LEEDing the Way
By Bryce Chastain, Senior Associate
Pleasanton Office
As a LEED accredited attorney, I thought it was time to address a question that seems to cross many of our clients' minds: Should we aim for LEED certification (whether on a specific project, or as a matter of general policy)?
First, for those who may be unfamiliar, LEED,which stands for Leadership in Energy and Environmental Design, is a system of rating construction projects based on environmental considerations, from open space to sustainability of construction materials to energy efficiency. LEED was created by the U.S. Green Building Council (USGBC), a non-profit organization that advocates for sustainable development practices, and is now administered by the Green Building Certification Institute (GBCI), a for-profit corporation started by USGBC in 2008. As the USGBC describes it: "LEED certification provides independent, third-party verification that a building, home or community was designed and built using strategies aimed at achieving high performance in key areas of human and environmental health: sustainable site development, water savings, energy efficiency, materials selection and indoor environmental quality." (More information here)
LEED has become increasingly well known, but not well understood. We thought it would be helpful for our clients and blog followers to know a little bit about the benefits of LEED, what it is not so good for, and offer some guideline on how to ensure that LEED is evaluated and best used.
Pleasanton Office
As a LEED accredited attorney, I thought it was time to address a question that seems to cross many of our clients' minds: Should we aim for LEED certification (whether on a specific project, or as a matter of general policy)?
First, for those who may be unfamiliar, LEED,which stands for Leadership in Energy and Environmental Design, is a system of rating construction projects based on environmental considerations, from open space to sustainability of construction materials to energy efficiency. LEED was created by the U.S. Green Building Council (USGBC), a non-profit organization that advocates for sustainable development practices, and is now administered by the Green Building Certification Institute (GBCI), a for-profit corporation started by USGBC in 2008. As the USGBC describes it: "LEED certification provides independent, third-party verification that a building, home or community was designed and built using strategies aimed at achieving high performance in key areas of human and environmental health: sustainable site development, water savings, energy efficiency, materials selection and indoor environmental quality." (More information here)
LEED has become increasingly well known, but not well understood. We thought it would be helpful for our clients and blog followers to know a little bit about the benefits of LEED, what it is not so good for, and offer some guideline on how to ensure that LEED is evaluated and best used.
Thursday, June 7, 2012
Student Fees Update: A Second Attempt at a Legislative Solution
By Mark Bresee, Partner
Irvine Office
Although the law regarding student fees has not and will not change − the scope of the constitutional “free school guarantee” is not in question − the ACLU’s effort to address the issue of compliance has taken multiple twists and turns. It started when the ACLU filed a lawsuit against the State in September, 2010, followed by a quick settlement which fizzled after Governor Brown took office. Legislation to address compliance and resolve the litigation, AB 165, made it to Governor Brown’s desk only to be vetoed because, in his opinion, the legislation went "too far." This resulted in a lifting of the stay of the ACLU suit, and a decision by the judge in January, 2012 making it clear that the State has some duty to enforce the free school guarantee on behalf of students.
These developments caused the parties to go back and start where they essentially began − Assembly member Lara introduced AB 1575, substantively the exact legislation that was vetoed by Governor Brown, but there were immediate signs that the plot would not unfold the same way this time around. On March 21, 2012 this legislation, like its predecessor, passed out of the Assembly Education Committee. However, the committee hearing revealed clear signs that the bill would have to be amended to get to the Governor’s desk, based in large part on statements by Democratic legislators during the hearing that amendments would be needed. Amendments were indeed made, as it passed out of the Assembly Appropriations Committee on May 25th and again before it passed out of the Assembly on a 50-22 vote on May 31st.
AB 1575, like its predecessor, would add a specifically-stated statutory student fee prohibition to the Education Code, in language designed to reflect current law: "A pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity." It defines an "educational activity" as "an activity offered by a school, school district, charter school, or county office of education that constitutes an integral fundamental part of elementary and secondary education, including, but not limited to, curricular and extracurricular activities." It also defines a "pupil fee," and includes a variety of examples of prohibited fees and charges taken from existing precedent. Like AB 165, the new legislation would explicitly provide that it is "declarative of existing law and shall not be interpreted to prohibit the imposition of a fee, deposit, or other charge otherwise allowed by law." It continues to reinforce the authority to engage in voluntary fundraising, and to give rewards and recognition to those who excel in that endeavor.
AB 165 was often criticized for its multiple accountability and oversight provisions, and this has been the focus of the recent amendments to AB 1575. The vetoed bill included three different accountability and oversight levels − adding student fees to the uniform complaint and investigation process; an annual review and certification process at each district; and an annual audit of compliance with the local review and certification process. (For a description of these measures, see our prior post here). The current version of AB 1575 eliminates the latter two accountability provisions, leaving only the inclusion of student fees in the uniform complaint process. Complaints alleging the imposition of unlawful fees would be permitted. Investigation would be required and, if unlawful fees were found to have been charged in a state-level appeal, all affected pupils and parents would have to be reimbursed. The classroom notice required in the existing uniform complaint process would require amendment to existing notices, to include a notice that pupil fees cannot be charged. Also, lawsuits alleging the unlawful imposition of student fees would be exempt from the claim filing requirements of the Government Code.
New language in the bill, added May 30th, would require the California Department of Education to develop and distribute written guidance for school administrators regarding student fees, beginning with the 2014-15 school year and updated every three years thereafter. This new provision is undoubtedly intended, at least in part, to ensure that the issue of student fees does not slip from the radar screen as it has in the past.
We are informed that AB 1575, in its current form, remains a basis for resolving the ACLU litigation, and we continue to advise that districts, county offices and charter schools are well-served by keeping processes in place that eliminate or at least reduce student fee issues.
Irvine Office
Although the law regarding student fees has not and will not change − the scope of the constitutional “free school guarantee” is not in question − the ACLU’s effort to address the issue of compliance has taken multiple twists and turns. It started when the ACLU filed a lawsuit against the State in September, 2010, followed by a quick settlement which fizzled after Governor Brown took office. Legislation to address compliance and resolve the litigation, AB 165, made it to Governor Brown’s desk only to be vetoed because, in his opinion, the legislation went "too far." This resulted in a lifting of the stay of the ACLU suit, and a decision by the judge in January, 2012 making it clear that the State has some duty to enforce the free school guarantee on behalf of students.
These developments caused the parties to go back and start where they essentially began − Assembly member Lara introduced AB 1575, substantively the exact legislation that was vetoed by Governor Brown, but there were immediate signs that the plot would not unfold the same way this time around. On March 21, 2012 this legislation, like its predecessor, passed out of the Assembly Education Committee. However, the committee hearing revealed clear signs that the bill would have to be amended to get to the Governor’s desk, based in large part on statements by Democratic legislators during the hearing that amendments would be needed. Amendments were indeed made, as it passed out of the Assembly Appropriations Committee on May 25th and again before it passed out of the Assembly on a 50-22 vote on May 31st.
AB 1575, like its predecessor, would add a specifically-stated statutory student fee prohibition to the Education Code, in language designed to reflect current law: "A pupil enrolled in a public school shall not be required to pay a pupil fee for participation in an educational activity." It defines an "educational activity" as "an activity offered by a school, school district, charter school, or county office of education that constitutes an integral fundamental part of elementary and secondary education, including, but not limited to, curricular and extracurricular activities." It also defines a "pupil fee," and includes a variety of examples of prohibited fees and charges taken from existing precedent. Like AB 165, the new legislation would explicitly provide that it is "declarative of existing law and shall not be interpreted to prohibit the imposition of a fee, deposit, or other charge otherwise allowed by law." It continues to reinforce the authority to engage in voluntary fundraising, and to give rewards and recognition to those who excel in that endeavor.
AB 165 was often criticized for its multiple accountability and oversight provisions, and this has been the focus of the recent amendments to AB 1575. The vetoed bill included three different accountability and oversight levels − adding student fees to the uniform complaint and investigation process; an annual review and certification process at each district; and an annual audit of compliance with the local review and certification process. (For a description of these measures, see our prior post here). The current version of AB 1575 eliminates the latter two accountability provisions, leaving only the inclusion of student fees in the uniform complaint process. Complaints alleging the imposition of unlawful fees would be permitted. Investigation would be required and, if unlawful fees were found to have been charged in a state-level appeal, all affected pupils and parents would have to be reimbursed. The classroom notice required in the existing uniform complaint process would require amendment to existing notices, to include a notice that pupil fees cannot be charged. Also, lawsuits alleging the unlawful imposition of student fees would be exempt from the claim filing requirements of the Government Code.
New language in the bill, added May 30th, would require the California Department of Education to develop and distribute written guidance for school administrators regarding student fees, beginning with the 2014-15 school year and updated every three years thereafter. This new provision is undoubtedly intended, at least in part, to ensure that the issue of student fees does not slip from the radar screen as it has in the past.
We are informed that AB 1575, in its current form, remains a basis for resolving the ACLU litigation, and we continue to advise that districts, county offices and charter schools are well-served by keeping processes in place that eliminate or at least reduce student fee issues.
Monday, June 4, 2012
Do Your Internet Safety Policies Address the Education of Minors?
By Penelope Glover, Senior Associate
Pleasanton Office
Although July 1, 2012 is less than one month away, there is still time to confirm whether your educational institution is in compliance with the Federal Communications Commission’s (FCC) Report and Order, released August 11, 2011. Pursuant to the FCC Report and Order, "Beginning July 1, 2012, schools’ Internet safety policies must provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response."
While most educational institutions likely already have policies in place for educating minors about online conduct and cyberbullying in order to comply with the Children's Internet Protection Act (CIPA) and to pursue E-rate funds, it would be an excellent time to reexamine those policies, confirm they address online behavior and cyberbullying, and determine whether the policies are effective. In other words, are students actually learning about appropriate online behavior and cyberbullying?
Pleasanton Office
Although July 1, 2012 is less than one month away, there is still time to confirm whether your educational institution is in compliance with the Federal Communications Commission’s (FCC) Report and Order, released August 11, 2011. Pursuant to the FCC Report and Order, "Beginning July 1, 2012, schools’ Internet safety policies must provide for educating minors about appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms and cyberbullying awareness and response."
While most educational institutions likely already have policies in place for educating minors about online conduct and cyberbullying in order to comply with the Children's Internet Protection Act (CIPA) and to pursue E-rate funds, it would be an excellent time to reexamine those policies, confirm they address online behavior and cyberbullying, and determine whether the policies are effective. In other words, are students actually learning about appropriate online behavior and cyberbullying?
Thursday, May 24, 2012
Senate Bill Seeks Modification of Dismissal and Suspension Process for Certificated Employees
By Peter Schaffert, Associate
and Mary Beth De Goede, Partner
Fresno Office
In the wake of the sexual abuse scandal that rocked Los Angeles Unified School District in February of 2012, legislators introduced several bills to streamline the dismissal and suspension procedures for certificated public school employees, particularly for incidents involving sexual misconduct. The allegations of sexual assaults against elementary students at Miramonte Elementary School in South Los Angeles sparked public outcry over the certificated employee dismissal process when one of the alleged molesters, a third grade teacher, settled the teacher dismissal proceeding against him for $40,000. The settlement highlighted the difficulties school districts face in conducting dismissal proceedings, even in cases involving egregious allegations.
Senate Bill 1530, introduced by State Senator Alex Padilla (D - San Fernando Valley) seeks to streamline the process for suspending or dismissing certificated employees for serious offenses. Below we describe current law, and how SB 1530 would change it.
and Mary Beth De Goede, Partner
Fresno Office
In the wake of the sexual abuse scandal that rocked Los Angeles Unified School District in February of 2012, legislators introduced several bills to streamline the dismissal and suspension procedures for certificated public school employees, particularly for incidents involving sexual misconduct. The allegations of sexual assaults against elementary students at Miramonte Elementary School in South Los Angeles sparked public outcry over the certificated employee dismissal process when one of the alleged molesters, a third grade teacher, settled the teacher dismissal proceeding against him for $40,000. The settlement highlighted the difficulties school districts face in conducting dismissal proceedings, even in cases involving egregious allegations.
Senate Bill 1530, introduced by State Senator Alex Padilla (D - San Fernando Valley) seeks to streamline the process for suspending or dismissing certificated employees for serious offenses. Below we describe current law, and how SB 1530 would change it.
Tuesday, May 22, 2012
The Importance of Child Find
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
In our April 2012 post we touched on the dangers of over-identifying and misidentifying students who may or may not be eligible for special education and related services. For May, we’ll explore the opposite side of the coin: failing to seek out and identify students.
Various federal and state laws govern the process for locating and identifying students potentially eligible to receive special education and related services. Child find obligations start at age 3 (federal and state law), and further, students between the ages of 6 and 18 years are subject to compulsory full-time education. (Education Code Section 48200, et seq.) California law requires local education agencies ("LEA") to actively seek out children who may be eligible for special education. LEAs are required to have systems in place that ensure that individuals with exceptional needs are referred for assessment when necessary. (California Education Code sections 56300-56302)
and Adam Newman, Partner
Cerritos Office
In our April 2012 post we touched on the dangers of over-identifying and misidentifying students who may or may not be eligible for special education and related services. For May, we’ll explore the opposite side of the coin: failing to seek out and identify students.
Various federal and state laws govern the process for locating and identifying students potentially eligible to receive special education and related services. Child find obligations start at age 3 (federal and state law), and further, students between the ages of 6 and 18 years are subject to compulsory full-time education. (Education Code Section 48200, et seq.) California law requires local education agencies ("LEA") to actively seek out children who may be eligible for special education. LEAs are required to have systems in place that ensure that individuals with exceptional needs are referred for assessment when necessary. (California Education Code sections 56300-56302)
Friday, May 18, 2012
May Districts Impose Local Vendor Bid Preferences?
By Suparna Jain, Associate
and Hugh Lee, Partner
Cerritos Office
In an effort to help spur local economic growth and opportunity, especially during times of financial hardship, there have been many inquiries into whether school and community college districts may impose local vendor bid preferences on their bids.
Pursuant to Public Contract Code sections 20111 and 20651, school and community college districts are required to competitively bid any contract involving an expenditure of more than $81,000 (adjusted annually) for equipment, materials or supplies to be furnished, sold, or leased to a school district, and services, except construction services and repairs, including maintenance as defined in Section 20115. As required by law, a school district and community college district must award such competitively bid contracts to the lowest responsible bidder. The public policy behind the statutes on competitive bidding is to enhance competition and to prevent corruption and undue influence. Competitive bidding also guards against favoritism, extravagance, fraud, and serves the public by preventing waste and securing the best economic result. A contract made without compliance with competitive bidding, where such bidding is required by statute, is void and unenforceable as being in excess of the public agency’s power.
and Hugh Lee, Partner
Cerritos Office
In an effort to help spur local economic growth and opportunity, especially during times of financial hardship, there have been many inquiries into whether school and community college districts may impose local vendor bid preferences on their bids.
Pursuant to Public Contract Code sections 20111 and 20651, school and community college districts are required to competitively bid any contract involving an expenditure of more than $81,000 (adjusted annually) for equipment, materials or supplies to be furnished, sold, or leased to a school district, and services, except construction services and repairs, including maintenance as defined in Section 20115. As required by law, a school district and community college district must award such competitively bid contracts to the lowest responsible bidder. The public policy behind the statutes on competitive bidding is to enhance competition and to prevent corruption and undue influence. Competitive bidding also guards against favoritism, extravagance, fraud, and serves the public by preventing waste and securing the best economic result. A contract made without compliance with competitive bidding, where such bidding is required by statute, is void and unenforceable as being in excess of the public agency’s power.
Monday, May 14, 2012
Ninth Circuit Decision Allows Intern Teachers to Temporarily Meet "Highly Qualified" Status Under NCLB
By Jabari Willis, Senior Associate
Cerritos Office
and Mark Bresee, Partner
Irvine Office
In Renee v. Duncan (Renee III), issued May 10, 2012, the federal 9th Circuit Court of Appeals determined that a Department of Education regulation allowing "intern teachers" to meet the No Child Left Behind ("NCLB") definition of highly qualified continued to violate the text of NCLB, but acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect. As a result of the 9th Circuit's most recent decision, intern teachers who under the regulation "demonstrate satisfactory progress toward full certification" are considered "highly qualified" within the meaning of NCLB.
The Renee case is based upon a clash between the supporters of traditional teacher education and proponents of alternative-teaching programs. The original lawsuit (Renee I) was filed by a group of California activists and groups of minority parents and children, who argue that the regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.
Cerritos Office
and Mark Bresee, Partner
Irvine Office
In Renee v. Duncan (Renee III), issued May 10, 2012, the federal 9th Circuit Court of Appeals determined that a Department of Education regulation allowing "intern teachers" to meet the No Child Left Behind ("NCLB") definition of highly qualified continued to violate the text of NCLB, but acknowledged that a 2010 action by Congress amended federal law, at least temporarily, to permit the Department of Education regulation to go into effect. As a result of the 9th Circuit's most recent decision, intern teachers who under the regulation "demonstrate satisfactory progress toward full certification" are considered "highly qualified" within the meaning of NCLB.
The Renee case is based upon a clash between the supporters of traditional teacher education and proponents of alternative-teaching programs. The original lawsuit (Renee I) was filed by a group of California activists and groups of minority parents and children, who argue that the regulation permitted a disproportionate number of teaching "interns" to teach in California schools with large proportions of minority and low-income students.
Friday, May 11, 2012
Responding to a Student Sexting Incident Without a Scandal
By Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On any given day, an online search for "sexting" news will likely not only uncover several sexting incidents, but a "scandal" and/or criminal activity. Since sexting seems to have originated as a teen phenomenon, educational institutions are often vulnerable to becoming involved in the news coverage and scandal, particularly if the sexting results in mass expulsions, the mishandling of evidence, criminal charges, or tragedy associated with an alleged overreaction or omission. In many respects, the sexting incidents in the news involve the more extreme cases in which a sexually explicit student photograph is widely disseminated and causes considerable disruption within the educational community. While such incidents occur with some frequency, there are many other sexting incidents which, with the responsible and informed response of administrators, staff, students, and parents, could be swiftly and discretely resolved.
Although the appropriate responses to cyber incidents are fact-dependent, each educational institution responding to a sexting incident must typically confront at least two legal issues, in addition to compiling and evaluating the facts. First, since the nature of the image may impact how it should be handled, does the image constitute child pornography? Second, should the educational institution report the image to Child Protective Services ("CPS")?
and Chet Quaide, Partner
Pleasanton Office
On any given day, an online search for "sexting" news will likely not only uncover several sexting incidents, but a "scandal" and/or criminal activity. Since sexting seems to have originated as a teen phenomenon, educational institutions are often vulnerable to becoming involved in the news coverage and scandal, particularly if the sexting results in mass expulsions, the mishandling of evidence, criminal charges, or tragedy associated with an alleged overreaction or omission. In many respects, the sexting incidents in the news involve the more extreme cases in which a sexually explicit student photograph is widely disseminated and causes considerable disruption within the educational community. While such incidents occur with some frequency, there are many other sexting incidents which, with the responsible and informed response of administrators, staff, students, and parents, could be swiftly and discretely resolved.
Although the appropriate responses to cyber incidents are fact-dependent, each educational institution responding to a sexting incident must typically confront at least two legal issues, in addition to compiling and evaluating the facts. First, since the nature of the image may impact how it should be handled, does the image constitute child pornography? Second, should the educational institution report the image to Child Protective Services ("CPS")?
Tuesday, May 8, 2012
The Brown Act Does Not Prohibit Written Communications to School Board Members, But Conveying Certain Information Can be a Violation
By James Scot Yarnell, Partner
Sacramento Office
We are periodically asked whether a "weekly update" memorandum which many superintendents distribute to school district governing board members violates the Brown Act. As a general rule, a weekly update distributed to Board members will not violate the Brown Act unless the memo communicates the "comments or position" of a Board member to other members.
Consider the following scenario: In response to a Board member request for information regarding the possible use of District fields by local athletic clubs, a superintendent issued a weekly update to the Board containing historical background information regarding the former use of District fields for athletic competitions by adult league athletic clubs. A long-time current Board member was the source of this information. Thus, the text of the weekly update stated, "Trustee ____________ shared the following information . . ." and proceeded to report a sequence of largely negative activities, observations and recollections by the trustee. In this scenario, a potential violation has occurred.
Sacramento Office
We are periodically asked whether a "weekly update" memorandum which many superintendents distribute to school district governing board members violates the Brown Act. As a general rule, a weekly update distributed to Board members will not violate the Brown Act unless the memo communicates the "comments or position" of a Board member to other members.
Consider the following scenario: In response to a Board member request for information regarding the possible use of District fields by local athletic clubs, a superintendent issued a weekly update to the Board containing historical background information regarding the former use of District fields for athletic competitions by adult league athletic clubs. A long-time current Board member was the source of this information. Thus, the text of the weekly update stated, "Trustee ____________ shared the following information . . ." and proceeded to report a sequence of largely negative activities, observations and recollections by the trustee. In this scenario, a potential violation has occurred.
Monday, May 7, 2012
Knowing the Must Haves of an FAA
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
The functional analysis assessment ("FAA" or "Hughes Bill Assessment") is sometimes mistakenly referred to as a functional behavioral assessment ("FBA") but each is derived from a different law and more to the point, there is nothing in the federal law that describes how to do an FBA. The FAA was the by-product of legislation, AB 2586, that ultimately took form for present purposes in Title 5 California Code of Regulations Section 3052. Simply put, an FAA is a comprehensive and detailed analysis/assessment of a student's identified uncorrected maladaptive behavior in various educational settings that ultimately leads to an IEP team determination of whether the student should have a behavior intervention plan ("BIP"). For purposes of this post, the term BIP refers to the BIP as used in the FAA regs. The term BIP is also used in the federal regulations in the context of manifestation determinations. Sadly, though, the federal law provides no definition and no components for the term BIP used in that context.
An FAA is very specific and prescriptive and has extensive requirements regarding which students should receive an FAA, qualifications of the assessor, the procedures for conducting the assessment, and the elements of the assessment report per Title 5 California Code of Regulations Section 3052.
and Adam Newman, Partner
Cerritos Office
The functional analysis assessment ("FAA" or "Hughes Bill Assessment") is sometimes mistakenly referred to as a functional behavioral assessment ("FBA") but each is derived from a different law and more to the point, there is nothing in the federal law that describes how to do an FBA. The FAA was the by-product of legislation, AB 2586, that ultimately took form for present purposes in Title 5 California Code of Regulations Section 3052. Simply put, an FAA is a comprehensive and detailed analysis/assessment of a student's identified uncorrected maladaptive behavior in various educational settings that ultimately leads to an IEP team determination of whether the student should have a behavior intervention plan ("BIP"). For purposes of this post, the term BIP refers to the BIP as used in the FAA regs. The term BIP is also used in the federal regulations in the context of manifestation determinations. Sadly, though, the federal law provides no definition and no components for the term BIP used in that context.
An FAA is very specific and prescriptive and has extensive requirements regarding which students should receive an FAA, qualifications of the assessor, the procedures for conducting the assessment, and the elements of the assessment report per Title 5 California Code of Regulations Section 3052.
Monday, April 30, 2012
Sound Asset Management and Planning in Tough Financial Times
By Andreas Chialtas, Partner
and Lindsay Thorson, Senior Associate
Cerritos Office
Mounting financial pressure experienced by most K-12 school districts and community college districts throughout California necessitates more efficient use of district real property. Improved efficiency requires more than just knowing the law. The beneficial use and disposition of district property can take many forms such as selling property, generating lease income, decreasing the cost of operations and maintenance through shared use with other public agencies, or any combination of these. Given the myriad of options, it is clear that there is no “one-size-fits-all” approach. With this reality in mind, we recommend that district board members and trustees first get back to basics before undertaking the formal steps in any transaction, and follow some best practice approaches related to planning and community involvement. This will result in an outcome that can withstand public scrutiny while simultaneously providing financial relief.
So where to begin? First, districts should slow down…and plan. Tasked with momentous goals of educating students and improving student performance in these tough economic times, it is understandable that district decision-makers want to act quickly. Nevertheless, district board members and trustees should not rush to take action in this current market without sound planning. For example, in order to prevent sale or lease of properties at "fire sale" prices and to help districts maximize their options, we encourage good asset management and planning, an appropriate level of community outreach, and communication of districts’ desired goals.
and Lindsay Thorson, Senior Associate
Cerritos Office
Mounting financial pressure experienced by most K-12 school districts and community college districts throughout California necessitates more efficient use of district real property. Improved efficiency requires more than just knowing the law. The beneficial use and disposition of district property can take many forms such as selling property, generating lease income, decreasing the cost of operations and maintenance through shared use with other public agencies, or any combination of these. Given the myriad of options, it is clear that there is no “one-size-fits-all” approach. With this reality in mind, we recommend that district board members and trustees first get back to basics before undertaking the formal steps in any transaction, and follow some best practice approaches related to planning and community involvement. This will result in an outcome that can withstand public scrutiny while simultaneously providing financial relief.
So where to begin? First, districts should slow down…and plan. Tasked with momentous goals of educating students and improving student performance in these tough economic times, it is understandable that district decision-makers want to act quickly. Nevertheless, district board members and trustees should not rush to take action in this current market without sound planning. For example, in order to prevent sale or lease of properties at "fire sale" prices and to help districts maximize their options, we encourage good asset management and planning, an appropriate level of community outreach, and communication of districts’ desired goals.
Monday, April 23, 2012
Significant Private Sector Wage and Hour Decision Provides Guidance Regarding Employee Breaks and Meal Periods
By Lexe Davidson, Associate
and Tony De Marco, Partner
Irvine Office
On April 12, 2012, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court regarding an employer's duty to authorize and permit non-exempt employees to take rest periods, to provide meal periods to non-exempt employees, and the timing of each. The Brinker court held while employers "must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," employers are not required to "police" meal breaks. Further, the Brinker court clarified the amount of rest period time an employee is entitled to based on the length of his or her work day, and the timing of the rest period. The Court explained, "employers are subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." Importantly, the Brinker court held an employer is liable for wages for working during the meal period if the employer "knew or should have known" that the employee was working through the meal period.
The Labor Code sections analyzed by the Brinker court (sections 226.7 and 512) do not apply to public agencies. In 2009, in Johnson v. Arvin-Edison Water Storage District, the California Court of Appeal stated, "Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector," including Labor Code section 512. The Johnson court further held IWC Wage Order 17 regarding "miscellaneous employees" not covered under other wage orders, does not apply to public employees. A year later, in California Correctional Peace Officers’ Association v. State of California, the Court echoed the Johnson decision. (Click here to see the Alert from AALRR's Employer Services Practice Group, and here to see its Labor and Employment Law blog post)
Despite the Brinker decision’s inapplicability to public school districts, county offices of education, and community college districts, the decision provides useful guidance regarding duty free meal and rest periods afforded to public school employees.
and Tony De Marco, Partner
Irvine Office
On April 12, 2012, the California Supreme Court issued its long awaited decision in Brinker Restaurant Corporation v. Superior Court regarding an employer's duty to authorize and permit non-exempt employees to take rest periods, to provide meal periods to non-exempt employees, and the timing of each. The Brinker court held while employers "must afford employees uninterrupted half-hour periods in which they are relieved of any duty or employer control and are free to come and go as they please," employers are not required to "police" meal breaks. Further, the Brinker court clarified the amount of rest period time an employee is entitled to based on the length of his or her work day, and the timing of the rest period. The Court explained, "employers are subject to a duty to make a good faith effort to authorize and permit rest breaks in the middle of each work period, but may deviate from that preferred course where practical considerations render it unfeasible." Importantly, the Brinker court held an employer is liable for wages for working during the meal period if the employer "knew or should have known" that the employee was working through the meal period.
The Labor Code sections analyzed by the Brinker court (sections 226.7 and 512) do not apply to public agencies. In 2009, in Johnson v. Arvin-Edison Water Storage District, the California Court of Appeal stated, "Unless Labor Code provisions are specifically made applicable to public employers, they only apply to employers in the private sector," including Labor Code section 512. The Johnson court further held IWC Wage Order 17 regarding "miscellaneous employees" not covered under other wage orders, does not apply to public employees. A year later, in California Correctional Peace Officers’ Association v. State of California, the Court echoed the Johnson decision. (Click here to see the Alert from AALRR's Employer Services Practice Group, and here to see its Labor and Employment Law blog post)
Despite the Brinker decision’s inapplicability to public school districts, county offices of education, and community college districts, the decision provides useful guidance regarding duty free meal and rest periods afforded to public school employees.
Friday, April 20, 2012
Bill That Would Have Punished Student-Teacher Dating, Opposed by California Federation of Teachers, Fails
By Marisa Lincoln, Senior Associate
Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On March 1, 2012, outrage erupted and national headlines were created when James Hooker, a 41 year old teacher at a high school in Modesto, California, announced that he quit his job, left his wife and family, and moved in with an 18 year old student, Jordan Powers. Both student and teacher have maintained that, while they met when the student was 14, their relationship did not become physical until she turned 18 years old. While this matter is still under investigation, the student's mother claims that phone records demonstrate the existence of an estimated 8,000 text messages between the teacher and student that date back to the summer of 2011, when the student was a minor.
California's age of consent is 18 years old. Thus, without any evidence that there was inappropriate contact between the student and teacher before the student turned 18, nothing illegal can be found about this odd and disturbing relationship. However, despite the fact the student is legally an adult, many are left feeling that the teacher's actions are ethically and morally wrong.
Penelope Glover, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
On March 1, 2012, outrage erupted and national headlines were created when James Hooker, a 41 year old teacher at a high school in Modesto, California, announced that he quit his job, left his wife and family, and moved in with an 18 year old student, Jordan Powers. Both student and teacher have maintained that, while they met when the student was 14, their relationship did not become physical until she turned 18 years old. While this matter is still under investigation, the student's mother claims that phone records demonstrate the existence of an estimated 8,000 text messages between the teacher and student that date back to the summer of 2011, when the student was a minor.
California's age of consent is 18 years old. Thus, without any evidence that there was inappropriate contact between the student and teacher before the student turned 18, nothing illegal can be found about this odd and disturbing relationship. However, despite the fact the student is legally an adult, many are left feeling that the teacher's actions are ethically and morally wrong.
Wednesday, April 18, 2012
Proposed Revisions to the California Family Rights Act Will Expand the Circumstances Under Which Employees Could Take Protected Leave
By Tina Kannarr, Senior Counsel
Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
The California Assembly is considering a bill, Assembly Bill 2039, that would amend Section 12945.2 of the Government Code relating to family and medical leave. Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. A "child" is currently defined to include a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or an adult dependent child. The term "parent" is currently defined to mean the employee's biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Assembly Bill 2039, if passed, would expand the circumstances under which an employee will be entitled to protected leave pursuant to the CFRA only, by doing the following: (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expanding the definition of "parent" to include an employee’s parent-in-law; and (3) expanding the scope of permissible family and medical leave to include leave to care for a seriously ill sibling, grandparent, grandchild, or domestic partner. The term "domestic partner" would have the same meaning as set forth in Family Code section 297, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." This bill is similar to one that failed to pass several years ago that also would have expanded the definition of family member beyond those currently identified.
Sharon Ormond, Senior Associate
and Aaron O'Donnell, Partner
Cerritos Office
The California Assembly is considering a bill, Assembly Bill 2039, that would amend Section 12945.2 of the Government Code relating to family and medical leave. Currently, the California Family Rights Act (CFRA), like the federal Family and Medical Leave Act (FMLA), makes it an unlawful employment practice for an employer to refuse to grant a request by an eligible employee to take up to 12 workweeks of unpaid protected leave during any 12-month period (1) to bond with a child who was born to, adopted by, or placed for foster care with, the employee, (2) to care for the employee’s parent, spouse, or child who has a serious health condition, as defined, or (3) because the employee is suffering from a serious health condition rendering him or her unable to perform the functions of the job. A "child" is currently defined to include a biological, adopted, foster, or stepchild, a legal ward, or a child of a person standing in loco parentis, who is either under 18 years of age or an adult dependent child. The term "parent" is currently defined to mean the employee's biological, foster, or adoptive parent, stepparent, legal guardian, or other person who stood in loco parentis to the employee when the employee was a child.
Assembly Bill 2039, if passed, would expand the circumstances under which an employee will be entitled to protected leave pursuant to the CFRA only, by doing the following: (1) eliminating the age and dependency elements from the definition of "child," thereby permitting an employee to take protected leave to care for his or her independent adult child suffering from a serious health condition; (2) expanding the definition of "parent" to include an employee’s parent-in-law; and (3) expanding the scope of permissible family and medical leave to include leave to care for a seriously ill sibling, grandparent, grandchild, or domestic partner. The term "domestic partner" would have the same meaning as set forth in Family Code section 297, which defines domestic partners as "two adults who have chosen to share one another's lives in an intimate and committed relationship of mutual caring." This bill is similar to one that failed to pass several years ago that also would have expanded the definition of family member beyond those currently identified.
Monday, April 16, 2012
While Insults About Teachers and School Administrators May Result in Injury, They Might Not Always Result in Student Discipline
By Marisa Lincoln, Senior Associate
and Chet Quaide, Partner
Pleasanton Office
The old adage, "sticks and stones may break my bones, but words will never hurt me" may not be so reassuring in a day and age when anyone can post an insult about someone on a public blog or social media site for a virtual universe of internet users to see. This is especially so if a student or students have posted insults about an administrator or a teacher on a public website that are viewed by other members of school staff, students, parents, and the community.
While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?
and Chet Quaide, Partner
Pleasanton Office
The old adage, "sticks and stones may break my bones, but words will never hurt me" may not be so reassuring in a day and age when anyone can post an insult about someone on a public blog or social media site for a virtual universe of internet users to see. This is especially so if a student or students have posted insults about an administrator or a teacher on a public website that are viewed by other members of school staff, students, parents, and the community.
While school administrators are undoubtedly aware that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," student speech posted on the internet berating administrators and teachers can have the potential of being extremely offensive and demeaning and create embarrassment to those who are targeted. The question then becomes, when can a student's off campus speech in which insults about school administrators and teachers are posted on a social media or other public website be restricted?
Tuesday, April 10, 2012
Over-Identification and Misidentification Creates Unnecessary Headaches for Parents, School Districts and County Offices of Education
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
and Adam Newman, Partner
Cerritos Office
It is essential that IEP team members understand how to properly identify students who are eligible for special education and related services. There are times when a referral for an evaluation for special education is made by a parent or teacher for a student who is struggling academically but does not have a true disability or where a student has a medical diagnosis but does not require special education and related services and is consequently also not eligible for special education (and may or may not be eligible for a 504 plan). IEP teams should be sufficiently familiar with the eligibility requirements of federal and state law and avoid the potential harm of wrongly identifying a student as eligible for special education.
Consequences to the school district or county office of education will include limitations to disciplinary options available for the student’s misconduct and “stay-put,” which, subject to certain exceptions not mentioned in this article, require the school district or county office of education to continue providing the student special education placement and services pending the outcome of administrative and/or court litigation.
Tuesday, April 3, 2012
Employer-Employee Faceoff: Do You Really Want to Know What is on Your Employees’ or Applicants’ Social Media Sites?
By Penelope Glover, Senior Associate
and Marisa Lincoln, Senior Associate
Pleasanton Office
There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.
The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?
and Marisa Lincoln, Senior Associate
Pleasanton Office
There has been a lot of buzz recently about whether employers can demand employees or prospective employees to provide passwords to their private social media accounts. The buzz was undoubtedly associated, in part, with a proposed amendment to the Federal Communications Commission Process Reform Act of 2012, which was approved by the House of Representatives on March 27, 2012. The amendment would have enabled the Federal Communications Commission to prohibit covered entities from requiring job applicants or employees to disclose confidential social networking passwords to their employers or prospective employers.
The proposed amendment was rejected by the House of Representatives. Thus, employers may arguably continue to search public social networking sites and request employee and applicant passwords for private social media sites. However, is this practice a good idea?
Monday, April 2, 2012
Public Agencies Can Now Use Their Own Employees Through Force Accounts, or Hire Other Entities Through Negotiated Contracts or Purchase Orders for Construction Projects Under $45,000, if they Opt into the Uniform Cost Accounting Act
By Stephen McLoughlin, Associate
and Hugh Lee, Partner
Cerritos Office
The Uniform Cost Accounting Act at Public Contract Code section 22000 et seq. (“UCAA”) allows participating agencies to avoid the formal bidding procedure for projects that fall under certain cost thresholds. The UCAA includes two thresholds: 1) the "Direct Hire Threshold" which allows public agencies to hire their own employees through a force account or hire other entities directly through a negotiated contract or purchase order to perform public construction contracts and 2) the "Informal Bidding Threshold" which allows public agencies to use an informal bidding procedure. The threshold amounts set forth in the UCAA are periodically changed by the California legislature. As of January 1, 2012, the Direct Hire Threshold is $45,000, meaning any project costing $45,000 or less can be performed by the public agency's employees through a force account or the public agency can hire another entity directly through a negotiated contract or purchase order. The Informal Bidding Threshold is $175,000, meaning any contract costing $175,000 or less may be bid using the informal bidding procedure set forth in the UCAA. Any project over $175,000 must be let through formal bidding procedures.
Whenever the thresholds in the UCAA are changed, public agencies tend to reexamine whether opting into the UCAA is a good idea. In general, the UCAA is touted as a simplified bidding process. The ability to complete construction costs worth $45,000 or less without bidding is definitely appealing specifically to school districts when compared to the competitive bidding threshold of $15,000 under Public Contract Code section 20111. The informal bidding procedure, available for projects $175,000 or under, can also be a nice option as it allows school districts to avoid the formal bidding requirements of Public Contract Code section 20111. However, the UCAA does require public agencies to meet their own set of administrative requirements that can be laborious. Specifically, the public agency must pass a resolution opting into the UCAA and follow the notification procedures for informal bidding described in the UCAA.
and Hugh Lee, Partner
Cerritos Office
The Uniform Cost Accounting Act at Public Contract Code section 22000 et seq. (“UCAA”) allows participating agencies to avoid the formal bidding procedure for projects that fall under certain cost thresholds. The UCAA includes two thresholds: 1) the "Direct Hire Threshold" which allows public agencies to hire their own employees through a force account or hire other entities directly through a negotiated contract or purchase order to perform public construction contracts and 2) the "Informal Bidding Threshold" which allows public agencies to use an informal bidding procedure. The threshold amounts set forth in the UCAA are periodically changed by the California legislature. As of January 1, 2012, the Direct Hire Threshold is $45,000, meaning any project costing $45,000 or less can be performed by the public agency's employees through a force account or the public agency can hire another entity directly through a negotiated contract or purchase order. The Informal Bidding Threshold is $175,000, meaning any contract costing $175,000 or less may be bid using the informal bidding procedure set forth in the UCAA. Any project over $175,000 must be let through formal bidding procedures.
Whenever the thresholds in the UCAA are changed, public agencies tend to reexamine whether opting into the UCAA is a good idea. In general, the UCAA is touted as a simplified bidding process. The ability to complete construction costs worth $45,000 or less without bidding is definitely appealing specifically to school districts when compared to the competitive bidding threshold of $15,000 under Public Contract Code section 20111. The informal bidding procedure, available for projects $175,000 or under, can also be a nice option as it allows school districts to avoid the formal bidding requirements of Public Contract Code section 20111. However, the UCAA does require public agencies to meet their own set of administrative requirements that can be laborious. Specifically, the public agency must pass a resolution opting into the UCAA and follow the notification procedures for informal bidding described in the UCAA.
Tuesday, March 27, 2012
Bullying at California Public Colleges and Universities is Target of New Law
By Aaron O'Donnell, Partner
and Sharon Ormond, Senior Associate
Cerritos Office
As has been widely reported in the media, earlier this month a Rutgers University student was convicted of bias crimes for homophobia-motivated webcam spying on his roommate, who committed suicide after learning of the spying. The case has focused attention on the phenomenon of bullying on college and university campuses.
A new California law calls on the state's public colleges and universities to address this issue as well.
and Sharon Ormond, Senior Associate
Cerritos Office
As has been widely reported in the media, earlier this month a Rutgers University student was convicted of bias crimes for homophobia-motivated webcam spying on his roommate, who committed suicide after learning of the spying. The case has focused attention on the phenomenon of bullying on college and university campuses.
A new California law calls on the state's public colleges and universities to address this issue as well.
Monday, March 26, 2012
The "Secret" Exemption to the Brown Act Enjoyed by California K-12 School and Community College Districts
By Chet Quaide, Partner
Pleasanton Office
School district administrators aren’t used to “thanking” Sacramento too often, given the annual slew of additional mandates and reduced funding from the Legislature. When the “Rodda Act,” the set of laws that provides for collective bargaining by school district employees in California, was enacted in 1975, however, the Legislature provided a little known exemption from the normal requirements of the Brown Act relating expressly to negotiations.
Specifically, Government Code section 3549.1 provides that the following activities are completely exempt from the Brown Act:
Pleasanton Office
School district administrators aren’t used to “thanking” Sacramento too often, given the annual slew of additional mandates and reduced funding from the Legislature. When the “Rodda Act,” the set of laws that provides for collective bargaining by school district employees in California, was enacted in 1975, however, the Legislature provided a little known exemption from the normal requirements of the Brown Act relating expressly to negotiations.
Specifically, Government Code section 3549.1 provides that the following activities are completely exempt from the Brown Act:
- Any meeting and negotiating discussion between a public school employer and a recognized employee organization.
- Any meeting of a mediator with either party or both parties to the meeting and negotiating process.
- Any hearing, meeting, or investigation conducted by a fact-finder or arbitrator.
- Any executive session of the public school employer or between the public school employer and its designated representative for the purpose of discussing its position regarding any matter within the scope of representation and instructing its designated representatives.
Tuesday, March 20, 2012
Some Thoughts on Special Education/Student Discipline – Knowing How to Apply “The 10 Day Rule” and Other Interesting Tid-Bits
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
Students who are eligible for special and related services are entitled to additional protections when subjected to disciplinary removals that are deemed a "change of placement" under federal law, i.e., the IDEA and its corresponding regulations. At the point where disciplinary removals become a "change of placement" the IDEA and its regulations require that a manifestation determination IEP team meeting be held to determine whether the alleged misconduct in question is a manifestation of the student's disability or not. A change of placement is deemed to occur (hence triggering the requirement for convening a manifestation determination IEP team meeting), where the disciplinary removal is for 10 cumulative school days or more during a school year, or where a series of removals constitutes a pattern. While the legislation seems straight forward, upon a first or even several reads, many questions arise.
School Day Removals
Keep in mind that in most cases, LEA’s can treat disabled students the same as non-disabled students for purposes of suspension for the first 10 days of suspension in a school year, and hence not trigger the need for a manifestation determination IEP team meeting. Nevertheless, disciplinary removals that trigger the need to hold a manifestation determination IEP team meeting need to take into account both partial day and full day removals. In the case of partial day removals, the Office of Special Education Programs (OSEP) has defined "portions of a school day" as counting a disciplinary removal (i.e. a suspension) for a half day or less as a half day, and counting a suspension or removal for more than a half day as a whole day.
and Adam Newman, Partner
Cerritos Office
Students who are eligible for special and related services are entitled to additional protections when subjected to disciplinary removals that are deemed a "change of placement" under federal law, i.e., the IDEA and its corresponding regulations. At the point where disciplinary removals become a "change of placement" the IDEA and its regulations require that a manifestation determination IEP team meeting be held to determine whether the alleged misconduct in question is a manifestation of the student's disability or not. A change of placement is deemed to occur (hence triggering the requirement for convening a manifestation determination IEP team meeting), where the disciplinary removal is for 10 cumulative school days or more during a school year, or where a series of removals constitutes a pattern. While the legislation seems straight forward, upon a first or even several reads, many questions arise.
School Day Removals
Keep in mind that in most cases, LEA’s can treat disabled students the same as non-disabled students for purposes of suspension for the first 10 days of suspension in a school year, and hence not trigger the need for a manifestation determination IEP team meeting. Nevertheless, disciplinary removals that trigger the need to hold a manifestation determination IEP team meeting need to take into account both partial day and full day removals. In the case of partial day removals, the Office of Special Education Programs (OSEP) has defined "portions of a school day" as counting a disciplinary removal (i.e. a suspension) for a half day or less as a half day, and counting a suspension or removal for more than a half day as a whole day.
Tuesday, March 13, 2012
Proposed Revisions to FMLA will Implement Recent Amendments to Military Leave Provisions
By Cathie Fields, Senior Associate
Irvine Office
and Jabari Willis, Associate
Cerritos Office
On February 15, 2012, the U.S. Department of Labor’s Wage and Hour Division issued a “notice of proposed rulemaking,” describing proposed revisions to regulations under the Family and Medical Leave Act of 1993 (FMLA). These regulations are proposed primarily to implement recent amendments to the military leave provisions.
The FMLA entitles eligible employees to take job-protected, unpaid leave, for up to a total of 12 workweeks in a 12-month period for certain serious health conditions of the employee or specified family members, or the birth or adoption of a child. The FMLA was amended by the enactment of the 2008 National Defense Authorization Act (NDAA), which allows eligible employees to take FMLA leave because of any “qualifying exigency” when the employee’s spouse, son, daughter, or parent is called to active duty in the Armed Forces in support of a contingency operation. Additionally, the 2008 amendments provide up to 26 workweeks of “military caregiver leave” in a single 12-month period for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. These two leave entitlements are referred to as “military family leave.”
Irvine Office
and Jabari Willis, Associate
Cerritos Office
On February 15, 2012, the U.S. Department of Labor’s Wage and Hour Division issued a “notice of proposed rulemaking,” describing proposed revisions to regulations under the Family and Medical Leave Act of 1993 (FMLA). These regulations are proposed primarily to implement recent amendments to the military leave provisions.
The FMLA entitles eligible employees to take job-protected, unpaid leave, for up to a total of 12 workweeks in a 12-month period for certain serious health conditions of the employee or specified family members, or the birth or adoption of a child. The FMLA was amended by the enactment of the 2008 National Defense Authorization Act (NDAA), which allows eligible employees to take FMLA leave because of any “qualifying exigency” when the employee’s spouse, son, daughter, or parent is called to active duty in the Armed Forces in support of a contingency operation. Additionally, the 2008 amendments provide up to 26 workweeks of “military caregiver leave” in a single 12-month period for an eligible employee to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the covered servicemember. These two leave entitlements are referred to as “military family leave.”
Friday, March 9, 2012
The Importance of Preserving Electronic Data When Disputes Arise
By Peter Sturges, Associate
Pleasanton Office
During the every day course of business, actual or potential disputes may arise that could lead to later legal action. In these situations, the preservation of electronically stored information can be overlooked.
In addition, litigation discovery rules provide that parties in litigation must take necessary measures to preserve electronic evidence. If appropriate measures are not taken in that regard, a party could be subject to evidence and issue sanctions, together with a counter-claim based on "spoliation of evidence."
Pleasanton Office
During the every day course of business, actual or potential disputes may arise that could lead to later legal action. In these situations, the preservation of electronically stored information can be overlooked.
In addition, litigation discovery rules provide that parties in litigation must take necessary measures to preserve electronic evidence. If appropriate measures are not taken in that regard, a party could be subject to evidence and issue sanctions, together with a counter-claim based on "spoliation of evidence."
Tuesday, March 6, 2012
Community College Districts Must Take Note of Court Ruling on K-12 Categorically Funded Certificated Employees
By Aaron O'Donnell, Partner
Cerritos Office
As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.
Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.
Cerritos Office
As noted in a recent AALRR alert, the March 1, 2012, decision of the Court of Appeal in Stockton Teachers Association v. Stockton Unified School District held that certificated employees hired into categorically funded positions pursuant to temporary contracts may nevertheless have the rights of probationary employees with respect to seniority, eligibility for tenure, and rehire rights after layoff. Although the case involved certificated employees of a K-12 district, the case has significant implications for community college districts as well in both the short- and long-term.
Employees heretofore considered to be temporary based on categorical funding may now have new arguments available to claim the rights of contract or tenured faculty. In the short term, the case will require community college districts to reassess their plans for layoffs and release of temporary employees, in order to determine whether, in light of the court’s holding, any additional resolutions should be adopted or notices sent by March 15, 2012. In the longer term, the case may require some districts to re-think their approach to the use of categorically funded temporary employees as a means of maintaining staffing flexibility.
Friday, March 2, 2012
Court Finds County Committee On School District Organization Did Not Violate The California Voting Rights Act And Confirms Trial Court’s 90% Reduction In Award Of Attorneys’ Fees
By David Soldani, Senior Associate
Fresno Office
Todd Goluba, Partner
and Chet Quaide, Partner
Pleasanton Office
On February 28, 2012, the court in Maria Esther Rey v. Madera Unified School District (February 28, 2012) held that a county committee on school district organization may not be held liable under the California Voting Rights Act ("CVRA," Elections Code § 14025 et seq.) when the county committee has taken no action to impose or apply an election method on behalf of one of its school districts. The court also upheld the trial court’s decision to reduce by over 90%, the amount of attorneys’ fees awarded to plaintiffs in the case.
The district was represented by Atkinson, Andelson, Loya, Ruud & Romo attorneys David Soldani, William Woolman and Jennifer Cantrell.
Fresno Office
Todd Goluba, Partner
and Chet Quaide, Partner
Pleasanton Office
On February 28, 2012, the court in Maria Esther Rey v. Madera Unified School District (February 28, 2012) held that a county committee on school district organization may not be held liable under the California Voting Rights Act ("CVRA," Elections Code § 14025 et seq.) when the county committee has taken no action to impose or apply an election method on behalf of one of its school districts. The court also upheld the trial court’s decision to reduce by over 90%, the amount of attorneys’ fees awarded to plaintiffs in the case.
The district was represented by Atkinson, Andelson, Loya, Ruud & Romo attorneys David Soldani, William Woolman and Jennifer Cantrell.
Tuesday, February 28, 2012
U.S. Supreme Court Appears to Scale Back Requirement to Exhaust Administrative Remedies Before Filing Suit in Special Education Cases
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
On February 21, 2012, the United State Supreme Court declined to hear an appeal from the Peninsula School District (“District”) in the state of Washington. The District sought review of a Ninth Circuit decision from July 2011. The case stems from a 2005 civil suit filed against the District by a student indentified as D.P., seeking relief under Section 1983 of the Civil Rights Act alleging violations of the Fourth, Eighth, and Fourteenth Amendments to the Constitution, as well as violations of the Individuals with Disabilities in Education Act (“IDEA”). In response to the civil filing, the District argued that D.P. had failed to exhaust his administrative remedies by not going through the due process hearing and appeals procedures connected to the due process hearing. The lower federal court agreed with the District and dismissed the lawsuit. In a somewhat surprising move, the Ninth Circuit reversed.
Generally, the IDEA requires that before filing a civil action seeking relief that is also available under the IDEA, a student must exhaust administrative remedies before filing a lawsuit. However, the Ninth Circuit held that the lower courts should look at the relief sought rather than the injury alleged. This position is in stark contrast to the Ninth Circuit’s previous rulings which placed the focus on the injury alleged, i.e. usually a denial of a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”). The Ninth Circuit specifically noted that exhaustion is required when the parent seeks: 1) an IDEA remedy, such as tuition reimbursement; 2) a change in the student’s program or placement; or 3) the enforcement of rights arising from a denial of FAPE. However, depending on the type of relief sought, some relief may fall outside the exhaustion rule, thereby allowing pursuit of a lawsuit side by side or in lieu of a due process hearing. Not all Courts of Appeal across the country accept the Ninth Circuit’s latest turnabout, which makes all the more puzzling the Supreme Court’s actions, since one purpose of Supreme Court review is to reconcile different interpretations of federal law by different Circuit Courts in the United States, as is the case here.
and Adam Newman, Partner
Cerritos Office
On February 21, 2012, the United State Supreme Court declined to hear an appeal from the Peninsula School District (“District”) in the state of Washington. The District sought review of a Ninth Circuit decision from July 2011. The case stems from a 2005 civil suit filed against the District by a student indentified as D.P., seeking relief under Section 1983 of the Civil Rights Act alleging violations of the Fourth, Eighth, and Fourteenth Amendments to the Constitution, as well as violations of the Individuals with Disabilities in Education Act (“IDEA”). In response to the civil filing, the District argued that D.P. had failed to exhaust his administrative remedies by not going through the due process hearing and appeals procedures connected to the due process hearing. The lower federal court agreed with the District and dismissed the lawsuit. In a somewhat surprising move, the Ninth Circuit reversed.
Generally, the IDEA requires that before filing a civil action seeking relief that is also available under the IDEA, a student must exhaust administrative remedies before filing a lawsuit. However, the Ninth Circuit held that the lower courts should look at the relief sought rather than the injury alleged. This position is in stark contrast to the Ninth Circuit’s previous rulings which placed the focus on the injury alleged, i.e. usually a denial of a free appropriate public education (“FAPE”) in the least restrictive environment (“LRE”). The Ninth Circuit specifically noted that exhaustion is required when the parent seeks: 1) an IDEA remedy, such as tuition reimbursement; 2) a change in the student’s program or placement; or 3) the enforcement of rights arising from a denial of FAPE. However, depending on the type of relief sought, some relief may fall outside the exhaustion rule, thereby allowing pursuit of a lawsuit side by side or in lieu of a due process hearing. Not all Courts of Appeal across the country accept the Ninth Circuit’s latest turnabout, which makes all the more puzzling the Supreme Court’s actions, since one purpose of Supreme Court review is to reconcile different interpretations of federal law by different Circuit Courts in the United States, as is the case here.
Friday, February 24, 2012
Power Purchase Agreement Projects are Now Covered by the California Prevailing Wage Law
By Bryce Chastain, Senior Associate
Pleasanton Office
and Hugh Lee, Partner
Cerritos Office
Effective January 1, 2012, the legislature expanded the definition of "public project" subject to the California prevailing wage law with criteria meant to cover Power Purchase Agreement ("PPA") projects built on public property, supplying at least half the generated power to the public property owner.
In a typical PPA the local educational agency ("LEA") agrees to lease LEA land, or rooftops, to a private company that will design, build and then own and operate a renewable energy facility. The LEA usually also agrees buy all of the electrical energy generated from the facility for a very long period - typically twenty or more years. The LEA benefits because it is projected to spend less on its electricity over that period than if it just kept buying from the local utility, but it does not have to the building of a solar (or other renewable energy) plant itself. There are also several key economic components on the private owner's side that make PPAs an attractive business, and make it possible for them to offer low rates for the energy produced from PPA facilities. An argument some PPA providers have pushed is that they can build the plant at lower cost because it would be exempt from the California prevailing wage law, but the law was not clear.
Pleasanton Office
and Hugh Lee, Partner
Cerritos Office
Effective January 1, 2012, the legislature expanded the definition of "public project" subject to the California prevailing wage law with criteria meant to cover Power Purchase Agreement ("PPA") projects built on public property, supplying at least half the generated power to the public property owner.
In a typical PPA the local educational agency ("LEA") agrees to lease LEA land, or rooftops, to a private company that will design, build and then own and operate a renewable energy facility. The LEA usually also agrees buy all of the electrical energy generated from the facility for a very long period - typically twenty or more years. The LEA benefits because it is projected to spend less on its electricity over that period than if it just kept buying from the local utility, but it does not have to the building of a solar (or other renewable energy) plant itself. There are also several key economic components on the private owner's side that make PPAs an attractive business, and make it possible for them to offer low rates for the energy produced from PPA facilities. An argument some PPA providers have pushed is that they can build the plant at lower cost because it would be exempt from the California prevailing wage law, but the law was not clear.
Wednesday, February 15, 2012
Being Prepared For Student Protests And Walk-Outs
By Sal Holguin, Partner
and Geneva Englebrecht, Associate
Cerritos Office
Media Coverage of the Occupy Wall Street demonstrations is widespread. The protest has spanned the country and has included demonstrations in California cities such as San Francisco, Los Angeles, Ventura, Anaheim, and Temecula. At the same time the campaigns for local, state and national elections are starting to build momentum. Whether these protests and campaigns will infiltrate the school setting is unclear, however, school districts must be prepared to meet their legal obligation to provide a safe and supportive learning environment by mitigating any detrimental effect that protest, picketing, or student walk-outs may have on the school setting.
While school districts must be sensitive to their students’ broad legal right to free expression, they must also bear in mind their legal obligation to prevent the disruption of school activities, the shared responsibilities between schools and parents in ensuring the compulsory attendance, and the safety of their student. School district’s must also be mindful of the types of discipline that can be imposed on demonstrating students. With this in mind, we offer the following advice regarding notices to parents and addressing potential adult involvement in the student activism.
and Geneva Englebrecht, Associate
Cerritos Office
Media Coverage of the Occupy Wall Street demonstrations is widespread. The protest has spanned the country and has included demonstrations in California cities such as San Francisco, Los Angeles, Ventura, Anaheim, and Temecula. At the same time the campaigns for local, state and national elections are starting to build momentum. Whether these protests and campaigns will infiltrate the school setting is unclear, however, school districts must be prepared to meet their legal obligation to provide a safe and supportive learning environment by mitigating any detrimental effect that protest, picketing, or student walk-outs may have on the school setting.
While school districts must be sensitive to their students’ broad legal right to free expression, they must also bear in mind their legal obligation to prevent the disruption of school activities, the shared responsibilities between schools and parents in ensuring the compulsory attendance, and the safety of their student. School district’s must also be mindful of the types of discipline that can be imposed on demonstrating students. With this in mind, we offer the following advice regarding notices to parents and addressing potential adult involvement in the student activism.
Friday, February 10, 2012
The Potential Pitfalls of Cloud Computing
By Peter Sturges, Associate
Pleasanton Office
The trend toward “cloud computing” is increasingly visible as technology firms and service providers vie with each other to provide users with web-based data and software application services. From Apple’s iCloud to Amazon’s cloud-based user libraries to your local cable provider’s data storage plans, everyone wants to provide users with fee-based cloud services.
Cloud computing offers a number of advantages, such as providing online applications (also known as Software-as-a-Service, or “SaaS”), data storage, messaging, email, and web sites that the users themselves do not have to maintain. Cloud-based service providers claim to save users money in the long run by providing these services, notwithstanding that users are charged for them.
Pleasanton Office
The trend toward “cloud computing” is increasingly visible as technology firms and service providers vie with each other to provide users with web-based data and software application services. From Apple’s iCloud to Amazon’s cloud-based user libraries to your local cable provider’s data storage plans, everyone wants to provide users with fee-based cloud services.
Cloud computing offers a number of advantages, such as providing online applications (also known as Software-as-a-Service, or “SaaS”), data storage, messaging, email, and web sites that the users themselves do not have to maintain. Cloud-based service providers claim to save users money in the long run by providing these services, notwithstanding that users are charged for them.
Wednesday, February 1, 2012
Nonreelections and Year-End Performance Evaluations: Now is the Time to Think Ahead
By Sharon Ormond, Senior Associate
Aaron O’Donnell, Partner
Cerritos Office
and Lexe Davidson, Associate
Irvine Office
As we reach the approximate midpoint of the academic year, we believe it is important for employers to look ahead to nonreelections and year-end performance evaluations of permanent employees. We therefore remind our readers of important procedural considerations in the evaluation process, and also offer some substantive tips in preparing evaluation documents.
All education employers should be making sure now that they are developing adequate information on which to base evaluations and decisions about continued employment, that this information has been adequately documented in the personnel file and the employee given a chance to respond, and also that any requirements for the evaluation process established by statute, policy, or collective bargaining agreements are being observed. Don’t wait until the end of the year to address these issues! By then, it may be too late.
Wednesday, January 25, 2012
Supreme Court Leaves Schools Guessing About How To Respond To Off-Campus Cyberbullying
By Marleen Sacks, Senior Counsel
and Chet Quaide, Partner
Pleasanton Office
Last week, the U.S. Supreme Court refused to consider three cases involving cyberbullying. That refusal leaves school districts in a continuing quandary about how to respond to off-campus cyberbullying, and illustrates how reasonable minds can come to very different conclusions on whether school districts have the right to impose discipline, or whether such discipline violates the First Amendment.
In J.S. v. Blue Mountain School District (3rd Cir. 2011) 650 F.3d 915, an eighth grade student was suspended for 10 days after creating a fake MySpace page lampooning her school principal as a sex addict. The student, who accused the principal of having sex in his office and “hitting on students and their parents,” alleged that his wife looked like a man and that his son resembled a gorilla, and claimed the posting was a joke. Notably, the comments were written on a home computer during the weekend and shared with the student’s MySpace “friends.” The lower court ruled in favor of school district, but the Third Circuit Court of Appeals reversed, ruling 8-6 that the page caused “no substantial disruption at school.” So basically, seven judges thought the suspension was appropriate, and eight did not.
and Chet Quaide, Partner
Pleasanton Office
Last week, the U.S. Supreme Court refused to consider three cases involving cyberbullying. That refusal leaves school districts in a continuing quandary about how to respond to off-campus cyberbullying, and illustrates how reasonable minds can come to very different conclusions on whether school districts have the right to impose discipline, or whether such discipline violates the First Amendment.
In J.S. v. Blue Mountain School District (3rd Cir. 2011) 650 F.3d 915, an eighth grade student was suspended for 10 days after creating a fake MySpace page lampooning her school principal as a sex addict. The student, who accused the principal of having sex in his office and “hitting on students and their parents,” alleged that his wife looked like a man and that his son resembled a gorilla, and claimed the posting was a joke. Notably, the comments were written on a home computer during the weekend and shared with the student’s MySpace “friends.” The lower court ruled in favor of school district, but the Third Circuit Court of Appeals reversed, ruling 8-6 that the page caused “no substantial disruption at school.” So basically, seven judges thought the suspension was appropriate, and eight did not.
Tuesday, January 17, 2012
Video and Audio Recording of Special Education Students: Potential Teaching Tool and Potential Liability
By Geneva Englebrecht, Associate
and Adam Newman, Partner
Cerritos Office
Recording a student during the assessment process or for purposes of self observation can be a helpful documentary or teaching tool because it provides a visual and/or auditory model for students, parents, and other educational professionals. It can also be a useful teaching tool. However, without consent provided, at a minimum by the student’s parent or legal guardian, and in cases where a teacher might be recorded, from the teacher and school principal, such recordings are illegal. Additionally, many assessors and/or services providers may not be aware that any videos or audio recording of the student are considered part of his/her educational record. Thus, all laws and regulations regarding the maintenance and release of educational records, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), will apply to the recordings.
LEA board policies and administrative regulations should address maintenance of the recordings, permission to record, privacy, etc.
and Adam Newman, Partner
Cerritos Office
Recording a student during the assessment process or for purposes of self observation can be a helpful documentary or teaching tool because it provides a visual and/or auditory model for students, parents, and other educational professionals. It can also be a useful teaching tool. However, without consent provided, at a minimum by the student’s parent or legal guardian, and in cases where a teacher might be recorded, from the teacher and school principal, such recordings are illegal. Additionally, many assessors and/or services providers may not be aware that any videos or audio recording of the student are considered part of his/her educational record. Thus, all laws and regulations regarding the maintenance and release of educational records, including but not limited to the Family Educational Rights and Privacy Act (“FERPA”), will apply to the recordings.
LEA board policies and administrative regulations should address maintenance of the recordings, permission to record, privacy, etc.
Wednesday, January 4, 2012
Clearing the Smoke Surrounding California’s Compassionate Use Act (Medical Marijuana) and Its Effect on Employment and Student Discipline Law
By Amy Estrada, Associate
San Diego Office
and Mark Bresee, Partner
Irvine Office
Since voter approval of Proposition 215 in 1996 (enacting the the Compassionate Use Act ("CUA")), school districts have encountered issues regarding the discipline of students and employees who possess medical marijuana cards. Due to the tumultuous nature of the law, when asked how to proceed in such situations the responses have varied widely over the years. In light of the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, however, it can be stated with greater confidence that the CUA will not insulate employees or students who happen to be qualified medical marijuana patients from discipline under the Education Code.
Under the federal Controlled Substances Act, the possession and use of marijuana is prohibited, even for medical users. (Gonzales v. Raich (2005) 545 U.S. 1, 26–29.) Federal law classifies marijuana as a "Schedule I" drug, meaning it has "no currently accepted medical use." (21 U.S.C. § 812(c).) The federal government therefore does not deem medical marijuana "prescriptions" valid.
San Diego Office
and Mark Bresee, Partner
Irvine Office
Since voter approval of Proposition 215 in 1996 (enacting the the Compassionate Use Act ("CUA")), school districts have encountered issues regarding the discipline of students and employees who possess medical marijuana cards. Due to the tumultuous nature of the law, when asked how to proceed in such situations the responses have varied widely over the years. In light of the California Supreme Court’s decision in Ross v. RagingWire Telecommunications, Inc. (2008) 42 Cal.4th 920, however, it can be stated with greater confidence that the CUA will not insulate employees or students who happen to be qualified medical marijuana patients from discipline under the Education Code.
Under the federal Controlled Substances Act, the possession and use of marijuana is prohibited, even for medical users. (Gonzales v. Raich (2005) 545 U.S. 1, 26–29.) Federal law classifies marijuana as a "Schedule I" drug, meaning it has "no currently accepted medical use." (21 U.S.C. § 812(c).) The federal government therefore does not deem medical marijuana "prescriptions" valid.
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