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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)
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