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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.
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