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.
Tuesday, March 6, 2012
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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