Thursday, December 16, 2010
Friday, November 19, 2010
KMTG Legal Alerts
School Board Member who was removed from his position as Board's Vice President because of his criticism of the Superintendent could not state a claim for retaliation for exercising his first amendment rights
University violates Pubilc Contract Code by failing to disclose bid package selection procedure
University violates Pubilc Contract Code by failing to disclose bid package selection procedure
Thursday, November 11, 2010
KMTG Attorneys' Prevail In Long Standing Federal Suit Over The Use Of Waldorf Methods In Public Schools
On Friday, November 5, 2010, Judge Frank Damrell of the United States District Court, Eastern District of California, entered judgment in favor of Sacramento City Unified School District in a case originally filed in 1998. The case was brought by a taxpayer group who claim the use of Waldorf methods in public schools violates the United States Constitution's First Amendment prohibition against the establishment of religion.
The plaintiffs claim that Waldorf methods stem from, and are inseparable from "Anthroposophy," which they claim is a religion. Anthroposophy and Waldorf education were both created by Austrian Rudolf Steiner in the 19th century. The parties have battled this issue for years, and a bench trial was held on August 31, 2010 on the threshold issue of whether anthroposophy is a religion for Establishment Clause purposes. The judge's written decision issued last week found that plaintiffs failed to prove that anthroposophy is a religion.
This is an important victory for public schools across California as increasing numbers of public schools incorporate Waldorf methods into their curriculum and instructional delivery. Without a finding that anthroposophy is a religion for Establishment Clause purposes, plaintiffs' claims that Waldorf methods are "religious" fail and cannot support a constitutional challenge.
The KMTG litigation team included lead counsel Michelle Cannon, Diana Halpenny, Chris Keiner, and Chelsea Olson.
The Sacramento Bee reported on the decision on November 6, 2010. To read the story, click here.
To read Judge Damrell's decision, please click here.
The plaintiffs claim that Waldorf methods stem from, and are inseparable from "Anthroposophy," which they claim is a religion. Anthroposophy and Waldorf education were both created by Austrian Rudolf Steiner in the 19th century. The parties have battled this issue for years, and a bench trial was held on August 31, 2010 on the threshold issue of whether anthroposophy is a religion for Establishment Clause purposes. The judge's written decision issued last week found that plaintiffs failed to prove that anthroposophy is a religion.
This is an important victory for public schools across California as increasing numbers of public schools incorporate Waldorf methods into their curriculum and instructional delivery. Without a finding that anthroposophy is a religion for Establishment Clause purposes, plaintiffs' claims that Waldorf methods are "religious" fail and cannot support a constitutional challenge.
The KMTG litigation team included lead counsel Michelle Cannon, Diana Halpenny, Chris Keiner, and Chelsea Olson.
The Sacramento Bee reported on the decision on November 6, 2010. To read the story, click here.
To read Judge Damrell's decision, please click here.
Friday, October 15, 2010
Tuesday, October 5, 2010
Friday, October 1, 2010
Breaking news: Governor Vetoes Bills Aimed at Pension Reform
The Governor has vetoed two bills which would have had a significant impact on school employees. The first bill, AB 827, would have, among other things, limited automatic renewals of contracts with exempted employees such as superintendents where there was any increase in compensation under the contract. (Read veto message 827 link) The second bill, SB 1425, impacting both CalSTRS and CalPERS members, sought to curtail “spiking” or the practice of increasing final compensation in order to inflate retirement benefits by limiting the types of compensation which would “count” in determining final compensation and the amount an employee’s salary could increase in the last five years of employment and still be included in his/her retirement benefit. The bill also required a 180 day separation of service applicable to all retirees before returning to work. Current law only requires such a separation where an employee retires before the “normal” retirement age of 60. (Read veto message 1425 link)
By Chelsea R. Olson
By Chelsea R. Olson
Thursday, September 30, 2010
It's Election Season
As we gear up for elections this November, check out the list below for a refresher of permissible and prohibited employee political activities, whether it is a bond election, board member election, or general election.
PERMISSIBLE POLITICAL ACTIVITIES:
Political discussions and activities on an employee's own time (including lunch time, not including preparation time) and at his/her own expense.
Public comments during district board meetings if it is clear they are expressing their own personal views as a member of the public.
Wear political buttons during non-instructional time.
Use school facilities for meetings under the Civic Center Act—but only under the same terms and conditions school facilities are made available for other community members and in accordance with District Board Policies and Administrative Regulations.
PROHIBITED POLITICAL ACTIVITES:
Use of district funds, services, supplies, or equipment for the purpose of urging the support of or opposition to any ballot measure or candidate for office. Campaign work during school/work day.
Post or distribute political campaign materials on district property.
Use students to write, address or distribute political campaign materials.
Present viewpoints on particular candidates or ballot measures in the classroom without giving equal time to the presentation of opposing views.
Post or distribute political campaign through emails sent to parents using email lists obtained through employment; use district email system for campaign purposes.
Wear political buttons re candidates or ballot measures during instructional time, if district has a policy prohibiting such conduct.
PERMISSIBLE POLITICAL ACTIVITIES:
PROHIBITED POLITICAL ACTIVITES:
- This includes school mailboxes.
- This includes union newsletters containing political endorsements placed in school mailboxes unless the District decides to allow access to all sides on an equitable basis.
Wednesday, September 29, 2010
Brown v. Shasta Union High School District: The Band Plays On
The California Court of Appeals for the Third District recently upheld a preliminary injunction preventing the Shasta Union High School District (“District”) from enforcing an expanded drug test policy. Several students brought suit claiming that the new policy, which broadened random drug searches to include students involved in various extracurricular activities, such as “choir, band, science bowl, triathlon, mock trial, and Future Farmers of America,” as well as athletics, violated their constitutional rights under both the United States and California Constitutions. As part of the drug tests, students involved in the various activities were randomly pulled from class and asked to go into a stall to urinate into a test cup while a monitor listened. A positive test or a failure to test resulted in a removal of the student from the extracurricular activity on varying degrees. The District stated that they had expanded the random drug tests based on numerous stories about drug possession, use and sales by students in these clubs.
The Court of Appeals found that the students demonstrated a likelihood of prevailing at trial, and, therefore, the preliminary injunction was justified. The Court emphasized that the California Constitution explicitly grants a right to privacy, which offers greater protection than under the United States Constitution. While under federal law, it is easier for schools to institute random, suspicionless drug testing for students involved in extracurricular activities beyond just athletics, under the California Constitution, students may have a higher expectation of privacy. Furthermore, the District was unable to show that it had a sufficient interest in the expanded drug testing policy. The District admitted that there was no reason to believe that the students involved in the extracurricular activities were more involved in drug use than the student body as a whole. The District’s proof of the drug problem was based largely on anecdotal information, and there was disagreement between the experts about whether drug testing actually reduces drug use at school.
Given these factual disputes, the Court of Appeals decided not to rule on the merits of the case, and sent the case back to the trial court for a full hearing. They did, however, leave the preliminary injunction in place, given the likelihood of students’ success at trial.
As an unpublished decision, Brown has limited precedential value. However, school districts should consult legal counsel for expanding any drug search policy based on this new ruling. KMTG will continue to monitor this case and will provide updates as they become available. The full case is available here
By Jessi Carriger
The Court of Appeals found that the students demonstrated a likelihood of prevailing at trial, and, therefore, the preliminary injunction was justified. The Court emphasized that the California Constitution explicitly grants a right to privacy, which offers greater protection than under the United States Constitution. While under federal law, it is easier for schools to institute random, suspicionless drug testing for students involved in extracurricular activities beyond just athletics, under the California Constitution, students may have a higher expectation of privacy. Furthermore, the District was unable to show that it had a sufficient interest in the expanded drug testing policy. The District admitted that there was no reason to believe that the students involved in the extracurricular activities were more involved in drug use than the student body as a whole. The District’s proof of the drug problem was based largely on anecdotal information, and there was disagreement between the experts about whether drug testing actually reduces drug use at school.
Given these factual disputes, the Court of Appeals decided not to rule on the merits of the case, and sent the case back to the trial court for a full hearing. They did, however, leave the preliminary injunction in place, given the likelihood of students’ success at trial.
As an unpublished decision, Brown has limited precedential value. However, school districts should consult legal counsel for expanding any drug search policy based on this new ruling. KMTG will continue to monitor this case and will provide updates as they become available. The full case is available here
By Jessi Carriger
Friday, August 20, 2010
Thursday, August 19, 2010
Lapsed teaching credential? Now what?
Just what exactly happens when a teacher allows his/her teaching credential to lapse? A permanent teacher, hired originally as a 1.0 FTE allowed his full time credential to lapse 30 days into the start of the school year. The District gave the teacher the opportunity to apply for a part time credential, which he did and the District continued to employ him in a part time capacity. 15 months later, and half way into the succeeding school year, the teacher contacted the District and informed them that he had completed requirements for reinstatement of his full time credential and demanded the District return him to full time status and salary. The District refused to do so arguing that it was not required to create a position it did not need and furthermore, was certainly not required to do so in the middle of the school year. The trial court denied the teacher's Petition for Writ of Mandate and the 3rd District Court of Appeals upheld the Trial Court's determination. As this was not a published decision, it can not be relied upon in other cases, but at least this confirms that a teacher has a responsibility to maintain his/her credential.
Cann v. Oroville Union High School Dist. CA3
By Emily E. LaMoe
Cann v. Oroville Union High School Dist. CA3
By Emily E. LaMoe
SB 1285
SB 1285 (Steinberg) was amended again on August 18, 2010 This is the bill that addresses teacher layoffs in response to the Reed v. Los Angeles USD case. That case barred the district from layoff of teachers in three middle schools on the grounds that the disproportionate impact on staff at those schools was denying the students their constitutional rights of equal protection to an education. See previous article on the Reed case and this bill. The bill was passed by the Assembly Appropriations Committee and referred to the Assembly Rules Committee.
In its previous iteration the bill contained requirements regarding schools in deciles one through three, and barred districts from laying off teachers at those schools in numbers that were disproportionate to the overall percentages of layoffs. Those provisions of the bill have now, thankfully, been deleted, and the only change in the law embodied in SB 1285 is Education Code section 44955(d) Ed Code 44955 The bill renumbers the existing subsections of 44955(d). The current 44955(d) (1) and (2) become 44955(1) (A) and (B) and there is a new subsection (2). 44955(1) (B), which allows districts to deviate from seniority for purposes of equal protection, adds “pupils and certificated staff” to the constitutional equal protection language. New subparagraph (2) of 44955 (d) contains language that the Legislature intends to specify criteria and conditions for “identifying schools analogous to the schools identified in Reed v. LAUSD . . .” It also includes legislative intent language “to require” districts with schools that meet those criteria and conditions ensure the proportion of layoffs of teachers is no greater than the district average.
There is an excellent bill analysis by an Assembly staff person that addresses the competing interests in this layoff dilemma. Interestingly, opponents to this bill, according to the analysis, argue that current law already allows districts to skip employees at low performing schools, citing the case of Bledsoe v. Biggs. Also according to the analysis, school districts who weighed in on this bill in response to those arguments cite the risks and costs of litigation and to withstand a legal challenge of deviating from seniority. School districts are right – when a district does deviate from seniority, attorneys hired by the unions often fight tooth and nail and threaten litigation to challenge that determination. Districts need clear authority to avoid that risk.
My two cents’ worth: Depending on what criteria the Legislature develops, and when it develops it, this version of the bill is moving in the direction that makes it worth supporting. It gives districts clear language of Legislative intent that districts may protect staffs at low performing schools from the disproportionate impact a layoff can produce. As pointed out in the Assembly analysis of August 3rd, the best teaching force for low-performing schools is not necessarily the more experienced teachers in the district, if they do not want to be at those schools. Districts often recruit teachers specifically who have the skills, talents and desire to work with high risk student populations, and then provide those teachers with additional training, support and opportunities to gel as a team. I’ve worked with a district in a layoff situation that had recently hired excellent newer teachers with relevant prior-life experiences who the district sought to protect in a layoff situation, as those teachers had made significant gains with students that had not been successful in the regular programs. Teachers often devote countless hours together to develop school-wide cohesive programs in order to ensure that children are taught in a nurturing and coordinated system. Ideally, districts should be able to insulate those staffs to see that those efforts pay off in long-term improved student performance. That is not to say the same efforts are not happening at other schools, but it is clear that it takes some very special individuals with a strong desire to work in high poverty schools in which there are so many challenges. This bill will assist districts to preserve those staffs. Districts, on the other hand, need to make that preservation a priority and set up the facts that will demonstrate reasons why those teaching staffs should be protected. In this era, protections from layoff can also aide districts in recruiting teachers to fill those hard to staff positions.
By Diana D. Halpenny
In its previous iteration the bill contained requirements regarding schools in deciles one through three, and barred districts from laying off teachers at those schools in numbers that were disproportionate to the overall percentages of layoffs. Those provisions of the bill have now, thankfully, been deleted, and the only change in the law embodied in SB 1285 is Education Code section 44955(d) Ed Code 44955 The bill renumbers the existing subsections of 44955(d). The current 44955(d) (1) and (2) become 44955(1) (A) and (B) and there is a new subsection (2). 44955(1) (B), which allows districts to deviate from seniority for purposes of equal protection, adds “pupils and certificated staff” to the constitutional equal protection language. New subparagraph (2) of 44955 (d) contains language that the Legislature intends to specify criteria and conditions for “identifying schools analogous to the schools identified in Reed v. LAUSD . . .” It also includes legislative intent language “to require” districts with schools that meet those criteria and conditions ensure the proportion of layoffs of teachers is no greater than the district average.
There is an excellent bill analysis by an Assembly staff person that addresses the competing interests in this layoff dilemma. Interestingly, opponents to this bill, according to the analysis, argue that current law already allows districts to skip employees at low performing schools, citing the case of Bledsoe v. Biggs. Also according to the analysis, school districts who weighed in on this bill in response to those arguments cite the risks and costs of litigation and to withstand a legal challenge of deviating from seniority. School districts are right – when a district does deviate from seniority, attorneys hired by the unions often fight tooth and nail and threaten litigation to challenge that determination. Districts need clear authority to avoid that risk.
My two cents’ worth: Depending on what criteria the Legislature develops, and when it develops it, this version of the bill is moving in the direction that makes it worth supporting. It gives districts clear language of Legislative intent that districts may protect staffs at low performing schools from the disproportionate impact a layoff can produce. As pointed out in the Assembly analysis of August 3rd, the best teaching force for low-performing schools is not necessarily the more experienced teachers in the district, if they do not want to be at those schools. Districts often recruit teachers specifically who have the skills, talents and desire to work with high risk student populations, and then provide those teachers with additional training, support and opportunities to gel as a team. I’ve worked with a district in a layoff situation that had recently hired excellent newer teachers with relevant prior-life experiences who the district sought to protect in a layoff situation, as those teachers had made significant gains with students that had not been successful in the regular programs. Teachers often devote countless hours together to develop school-wide cohesive programs in order to ensure that children are taught in a nurturing and coordinated system. Ideally, districts should be able to insulate those staffs to see that those efforts pay off in long-term improved student performance. That is not to say the same efforts are not happening at other schools, but it is clear that it takes some very special individuals with a strong desire to work in high poverty schools in which there are so many challenges. This bill will assist districts to preserve those staffs. Districts, on the other hand, need to make that preservation a priority and set up the facts that will demonstrate reasons why those teaching staffs should be protected. In this era, protections from layoff can also aide districts in recruiting teachers to fill those hard to staff positions.
By Diana D. Halpenny
Monday, August 16, 2010
KMTG Legal Alert
KMTG Legal Alert
August 16, 2010 | Bulletin No. 946388.2
LEGISLATIVE UPDATE
New Laws Affecting School Districts and Community College Districts
LEGISLATIVE UPDATE
New Laws Affecting School Districts and Community College Districts
Thursday, August 5, 2010
Mandatory Prequalification Process for School Construction!
Senate Bill 258 is currently making its rounds at the State Capitol. This Bill mandates school districts to use the prequalification process for public works projects costing more than $1 million - essentially eliminating the Lease-Leaseback model for such applicable projects. Senate Bill 258's author explains that, "with the economic downturn, school districts are receiving bids from contractors who have never worked on a public works project, are unfamiliar with the additional rules and regulations relating to public works projects, and have never bid on projects" - thereby adding to the risk that the contractor will not complete the project and eventually will cost the school district and the taxpayer. This Bill seeks to mitigate against these kinds of risks.
This Bill is supported by several contractor associations -- and opposed by various school organizations and school districts, including Association for California School Administrators, Association of California Construction Managers, California Association of School Business Officials, California's Coalition for Adequate School Housing, and Fresno Unified School District.
The current draft of the Bill was last amended on June 10, 2010 and the next hearing is scheduled for August 4, 2010.
Stay tuned for updates on this Bill and how the final draft of the Bill could affect your next school project!
By Karina Terakura
This Bill is supported by several contractor associations -- and opposed by various school organizations and school districts, including Association for California School Administrators, Association of California Construction Managers, California Association of School Business Officials, California's Coalition for Adequate School Housing, and Fresno Unified School District.
The current draft of the Bill was last amended on June 10, 2010 and the next hearing is scheduled for August 4, 2010.
Stay tuned for updates on this Bill and how the final draft of the Bill could affect your next school project!
By Karina Terakura
Wednesday, July 21, 2010
Teacher Layoffs and School Improvement Efforts – Will the Law Be Reformed?
Two bills are pending in the Senate to reform teacher layoff provisions. Senate Bill 955 by Senator Huff (with coauthors Emmerson and Romero) contains major changes in the areas of tenured teacher dismissals, probationary employee non-reelection timelines, teacher and administrator evaluations and layoffs. It is currently before the Senate Rules Committee, having been passed by the Senate Education Committee. A second bill was introduced by Senator Steinberg (SB 1285) that is in specific response to a case out of Los Angeles USD in which a court ordered the district not to lay teachers off at three specific middle schools. That case held that the disproportionate layoff at those schools deprived the students of their Equal Protection right to an education [see Legal Alert]. This bill is also winding its way through the committee process. For more detailed information about the specifics of the bills, see the Legal Alert and the Legislative Bill Service. As pointed out in the more detailed article, each bill presents pluses and problems for school districts.
Districts often express frustration when they work so hard to implement reforms at low performing schools, such as providing additional training and resources to the staffs, and then see district-wide layoffs decimate those efforts because those staffs tend to be less senior. It’s nearly impossible to put in place changes that will improve student performance if there is no stability in the staff. However, there are ways to protect those staff members in a layoff proceeding and lessen the impact, but districts need to start now to have a plan in place for school reform efforts that is defensible during a layoff hearing. Specific hiring criteria and processes, additional specialized training, selection of staff based on special skills or experiences are all facts that can help support a district’s case for preserving the less senior teachers. Most of all, the districts should be working with their teacher’s union for its support and participation in reform efforts. With or without union cooperation on the reform efforts, districts also need to decide if they are willing to withstand potential political pressure in the spring if the district chooses to lay teachers off in other than strict seniority order.
By Diana D. Halpenny
Districts often express frustration when they work so hard to implement reforms at low performing schools, such as providing additional training and resources to the staffs, and then see district-wide layoffs decimate those efforts because those staffs tend to be less senior. It’s nearly impossible to put in place changes that will improve student performance if there is no stability in the staff. However, there are ways to protect those staff members in a layoff proceeding and lessen the impact, but districts need to start now to have a plan in place for school reform efforts that is defensible during a layoff hearing. Specific hiring criteria and processes, additional specialized training, selection of staff based on special skills or experiences are all facts that can help support a district’s case for preserving the less senior teachers. Most of all, the districts should be working with their teacher’s union for its support and participation in reform efforts. With or without union cooperation on the reform efforts, districts also need to decide if they are willing to withstand potential political pressure in the spring if the district chooses to lay teachers off in other than strict seniority order.
By Diana D. Halpenny
California Schools Are Going Green!
20% reduction in indoor water usage! 50% reduction in school construction debris! Mandatory recycling centers on campus! As of January 2011, new schools being built within the state will be required to comply with the applicable provisions of California's new Green Building Code - or "CALGreen." CALGreen is a new section within the state's current Building Code and applies to all new residential, commercial, hospital and school buildings. In 2006, the Governor signed Assembly Bill 32 which required the state to reduce its greenhouse gas emissions to 1990 levels by 2020 - and the CALGreen Code is another way for the state to meet AB 32's "green" goals. Check out the current draft of CALGreen and tell us your thoughts!
By Karina Terakura
By Karina Terakura
Implementing the Open Enrollment Act Will Be a Scramble
Implementing the Open Enrollment Act Will Be a Scramble as 1,000 Eligible Schools are Identified- Districts Required to Send Notices by September 15
The State Board of Education has just adopted emergency regulations implementing the Open Enrollment Act of 2010 (SBX5 4) without providing much clarity to an already confusing law. See our Legal Alert for full details of the law and regulations.
The emergency regulations included a Preliminary List of 1,000 identified “low-achieving” schools whose students can opt to open enroll to a higher achieving school, either inside the district or in another district! Districts with schools on the list must notify parents/guardians of this option by the first day of instruction or by September 15 at the latest. And although this transfer option is limited to students attending one of the 1000 identified schools, many other receiving districts and schools will be affected. These districts will need to be sure they consider accepting or rejecting open enrollment applications according to the new law and regulations.
Adding to the confusion, this option is on top of existing choice options including intra-district open enrollment, Program Improvement transfers and inter-district transfers; each with its own set of laws and regulations. In addition, the definition of “low-achieving schools” for the purpose of this open enrollment option is confusingly different from definitions of “low-achieving schools” and “persistently lowest-performing schools” included in the Intervening in the Persistently Lowest-Performing Schools provisions of SBX5 1 conforming California to the federal Race to the Top requirements. More lists were created for these schools for implementing turnaround strategies.
The Open Enrollment emergency regulations will be effective as soon as the Office of Administrative approves them, which could be sometime within the next two weeks. KMTG suggests districts review the preliminary list of 1000 Open Enrollment schools to see if any of its own schools are on the list and prepare for notifying parents. Potential receiving districts should review existing open enrollment and transfer policies for conformance to these new requirements. In the meantime, keep posted here for new developments.
By Sally Jensen Dutcher
The State Board of Education has just adopted emergency regulations implementing the Open Enrollment Act of 2010 (SBX5 4) without providing much clarity to an already confusing law. See our Legal Alert for full details of the law and regulations.
The emergency regulations included a Preliminary List of 1,000 identified “low-achieving” schools whose students can opt to open enroll to a higher achieving school, either inside the district or in another district! Districts with schools on the list must notify parents/guardians of this option by the first day of instruction or by September 15 at the latest. And although this transfer option is limited to students attending one of the 1000 identified schools, many other receiving districts and schools will be affected. These districts will need to be sure they consider accepting or rejecting open enrollment applications according to the new law and regulations.
Adding to the confusion, this option is on top of existing choice options including intra-district open enrollment, Program Improvement transfers and inter-district transfers; each with its own set of laws and regulations. In addition, the definition of “low-achieving schools” for the purpose of this open enrollment option is confusingly different from definitions of “low-achieving schools” and “persistently lowest-performing schools” included in the Intervening in the Persistently Lowest-Performing Schools provisions of SBX5 1 conforming California to the federal Race to the Top requirements. More lists were created for these schools for implementing turnaround strategies.
The Open Enrollment emergency regulations will be effective as soon as the Office of Administrative approves them, which could be sometime within the next two weeks. KMTG suggests districts review the preliminary list of 1000 Open Enrollment schools to see if any of its own schools are on the list and prepare for notifying parents. Potential receiving districts should review existing open enrollment and transfer policies for conformance to these new requirements. In the meantime, keep posted here for new developments.
By Sally Jensen Dutcher
Without a Warrant: Greene v. Camreta
In December of 2009, the Court of Appeals for the 9th Circuit ruled that a social worker and police officer violated a student’s and her parents’ 4th Amendment rights by interviewing the student at school without a warrant, probable cause, parental consent, or exigent circumstances. For more detailed information about the case, please see our recent Legal Alert.
This ruling presents particular concerns for Districts and school officials. Can a social worker without a law enforcement official interview a student on campus without providing a warrant, having probable cause, exigent circumstances or parental consent? What are the school official’s specific obligations, if any, under the ruling?
Fortunately, the Court’s holding does not expressly place upon school officials an obligation to ensure the legality of a potential child abuse investigation by law enforcement. However, schools are charged with the protection of their students under the doctrine of in loco parentis. Therefore, schools do have a distinct interest in taking reasonable steps to ensure the rights of their students are not obviously violated. Most likely, a decision about whether or not to allow an interview of a student by a police official, and even a social worker, would be justified if a school official reasonably relied on the investigator’s assurances that the interview was proper and legally sufficient.
In addition, the Court of Appeals relied heavily on the fact that Oregon statutory law places obligations on both law enforcement and social workers to cooperate and participate in investigations of child abuse and neglect. This entanglement, coupled with the presence of the police officer at the interview, implicated the student’s and parents’ 4th Amendment rights. The court did not indicate whether the interview would have been permissible if the social worker had interviewed the student alone. Unlike Oregon law, California law does not directly involve law enforcement agencies in an investigation by Child Protective Services. However, social workers are mandatory reporters under California law, and must report suspicions of child abuse and neglect to the appropriate law enforcement agencies. Furthermore, some California social workers have expressed the opinion that they act in a law enforcement capacity when conducting child abuse investigations. Until a case is brought before the court, school districts should consider treating social workers investigating suspicions of child abuse and neglect the same as other law enforcement officials.
The California School Board Association (“CSBA”) has created a sample policy (BP5145.11), which can be accessed by school administrators through the CSBA website (www.csba.org). This policy takes a conservative approach and recommends schools have law enforcement officials fill out a form verifying their identity and the legitimacy of the interview. However, some attorneys assert that school officials are justified in relying on representations by law enforcement officials that the interview is proper. Districts must decide which approach best suits their needs and the interests of their students. The best protection for Districts is to adopt reasonable policies and ensure school staff know about the policy and consistently follow it.
There have already been indications that this ruling will be appealed to the United States Supreme Court. KMTG will continue to monitor the status of the case and provide updates on any important legal changes.
By Jessica Carriger
This ruling presents particular concerns for Districts and school officials. Can a social worker without a law enforcement official interview a student on campus without providing a warrant, having probable cause, exigent circumstances or parental consent? What are the school official’s specific obligations, if any, under the ruling?
Fortunately, the Court’s holding does not expressly place upon school officials an obligation to ensure the legality of a potential child abuse investigation by law enforcement. However, schools are charged with the protection of their students under the doctrine of in loco parentis. Therefore, schools do have a distinct interest in taking reasonable steps to ensure the rights of their students are not obviously violated. Most likely, a decision about whether or not to allow an interview of a student by a police official, and even a social worker, would be justified if a school official reasonably relied on the investigator’s assurances that the interview was proper and legally sufficient.
In addition, the Court of Appeals relied heavily on the fact that Oregon statutory law places obligations on both law enforcement and social workers to cooperate and participate in investigations of child abuse and neglect. This entanglement, coupled with the presence of the police officer at the interview, implicated the student’s and parents’ 4th Amendment rights. The court did not indicate whether the interview would have been permissible if the social worker had interviewed the student alone. Unlike Oregon law, California law does not directly involve law enforcement agencies in an investigation by Child Protective Services. However, social workers are mandatory reporters under California law, and must report suspicions of child abuse and neglect to the appropriate law enforcement agencies. Furthermore, some California social workers have expressed the opinion that they act in a law enforcement capacity when conducting child abuse investigations. Until a case is brought before the court, school districts should consider treating social workers investigating suspicions of child abuse and neglect the same as other law enforcement officials.
The California School Board Association (“CSBA”) has created a sample policy (BP5145.11), which can be accessed by school administrators through the CSBA website (www.csba.org). This policy takes a conservative approach and recommends schools have law enforcement officials fill out a form verifying their identity and the legitimacy of the interview. However, some attorneys assert that school officials are justified in relying on representations by law enforcement officials that the interview is proper. Districts must decide which approach best suits their needs and the interests of their students. The best protection for Districts is to adopt reasonable policies and ensure school staff know about the policy and consistently follow it.
There have already been indications that this ruling will be appealed to the United States Supreme Court. KMTG will continue to monitor the status of the case and provide updates on any important legal changes.
By Jessica Carriger
Monday, July 19, 2010
Can You Hear Me Now?
Some school districts are taking the opportunity this summer to address cell phone policies. Check out the link to the article below to see how some school districts are addressing cell phone use on campus.
Schools examining cell phone policies to address distractions
By Emily E. LaMoe
Schools examining cell phone policies to address distractions
By Emily E. LaMoe
Tuesday, July 13, 2010
Finally A Common Sense Ruling Regarding Temporary Classifications Of Teachers!
KMTG attorneys scored a significant win at the trial court in an important case regarding temporary teacher classifications. In a superior court decision issued on July 7, 2010, the judge agreed with KMTG’s legal position that teachers working in categorical positions may be properly classified as temporary employees under Education Code section 44909. The judge also agreed that it is proper to send temporary employees “precautionary notices” and to allow them to participate in a layoff hearing when their proper classification is disputed. This case was filed by a local teachers union after a layoff decision in favor of the school district where the teachers challenged both the temporary classification of teachers working in categorical programs and the district’s practice of sending “precautionary notices” to temporary employees whose proper classification was in dispute. The union’s attorney argued that teachers working in categorical positions may not be classified as temporary, but rather are entitled to be classified as probationary employees after the Bakersfield Decision.
Stay tuned for more on this as the superior court decision is likely to be appealed to the Third District Court of Appeals.
By Michelle Cannon
Stay tuned for more on this as the superior court decision is likely to be appealed to the Third District Court of Appeals.
By Michelle Cannon
Tuesday, June 29, 2010
Unlicensed School Personnel No Longer Permitted to Administer Insulin to Students
For the last few months, school districts and school attorneys have been anxiously waiting for the ruling of the California Third Appellate Court on whether or not trained school personnel can administer insulin to students with diabetes. The status of the law has been uncertain since 2007 when the California Department of Education (“CDE”) issued a legal advisory listing individuals authorized, in their view, to administer insulin to students. This list included: a “voluntary school employee who is unlicensed but who has been adequately trained to administer insulin pursuant to the student’s treating physician’s orders as required by the Section 504 plan or IEP.” The American Nurses Association and the California counterpart immediately filed suit against the Superintendent of Public Schools and the CDE (collectively, “State”), challenging that portion of the advisory. The nurses associations also launched campaigns against school districts, indicating it was unlawful for them to allow unlicensed personnel to administer the necessary insulin medication. After a hearing on the issue, the Superior Court agreed with the American Nurses Associations, that under current California law, non-licensed personnel could not administer insulin to students with diabetes. Believing such a ruling would be harmful to students and financially difficult for already hurting schools, the State appealed. The school districts, many without licensed school nurses, were left to wonder about the state of the law. In June, the Appellate Court affirmed the Trial Court’s decision.
This crippling ruling comes at a time when schools are faced with cutting budgets, personnel, and necessary educational programs to cope with the current economic crisis, along with a state-wide shortage of school nurses. The State’s position, which would allow properly-trained staff to administer the insulin injections, was supported by the American Diabetes Association, various school districts, school attorneys, students, and parents. Both the Trial Court and the Court of Appeal were careful to note that they were not deciding whether or not California law should permit non-licensed personnel to administer insulin, and even indicated such a law would better serve students; however, it was up to the legislative process to change the law, not the courts. Even the concurring justice reluctantly admitted that he had to concur under the current laws of California, “regardless of whether they were the product of legitimate concern for the safety of diabetic public school students or the result of a labor organization protecting its turf and flexing its political muscle.”
So far, there is no word whether or not the State will appeal to the California Supreme Court. However, with a new school year starting in a few months, school districts must begin to think about how to comply with the current ruling. This ruling does not affect the ability of non-licensed personnel to perform necessary emergency medical assistance.
By Jessica Carriger
American Nurses Association v Jack OConnell, As Superintendent of Public Education
KMTG Education Legal Alert
This crippling ruling comes at a time when schools are faced with cutting budgets, personnel, and necessary educational programs to cope with the current economic crisis, along with a state-wide shortage of school nurses. The State’s position, which would allow properly-trained staff to administer the insulin injections, was supported by the American Diabetes Association, various school districts, school attorneys, students, and parents. Both the Trial Court and the Court of Appeal were careful to note that they were not deciding whether or not California law should permit non-licensed personnel to administer insulin, and even indicated such a law would better serve students; however, it was up to the legislative process to change the law, not the courts. Even the concurring justice reluctantly admitted that he had to concur under the current laws of California, “regardless of whether they were the product of legitimate concern for the safety of diabetic public school students or the result of a labor organization protecting its turf and flexing its political muscle.”
So far, there is no word whether or not the State will appeal to the California Supreme Court. However, with a new school year starting in a few months, school districts must begin to think about how to comply with the current ruling. This ruling does not affect the ability of non-licensed personnel to perform necessary emergency medical assistance.
By Jessica Carriger
American Nurses Association v Jack OConnell, As Superintendent of Public Education
KMTG Education Legal Alert
Tuesday, June 22, 2010
Board Members Have Rights Too
Ever had a board member that is constantly criticizing school district administration and felt at a loss when other board members ask what you can do to stop it? While you may not be able to stop it, one Board used its own internal political process to respond to the lone critic. A board member's First Amendment rights were called into question at a school district in Washington, when a Board majority voted to strip the Board's vice president of his title as a result of his on-going public criticism of the District's superintendent. The former Board VP sued the school district and his board member colleagues alleging they had violated his First Amendment Rights. The Ninth Circuit held that the Board's action did not prevent the former VP from continuing to "speak out, vote his conscience, and serve his constituents as a member of the Board". The Board member was free to criticize the superintendent, however, the rest of the Board was free to remove him from his vice president status. For more information, check back for a Legal Alert from our office or click on the link below to read the Court's decision.
By Emily E. LaMoe
Ken Blair v. Bethel School District
Emily E. LaMoe Attorney Profile
By Emily E. LaMoe
Ken Blair v. Bethel School District
Emily E. LaMoe Attorney Profile
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