Join KMTG Attorneys at CSBA's Annual Education Conference!

Tomorrow, November 29th, marks the beginning of the 2012 Annual Education Conference of the California School Boards Association (CSBA).

KMTG has been proud to partner with CSBA over the years to provide the very best in education and training for CSBA members. This year's conference is being held in San Francisco and we're pleased to report that several KMTG attorneys were selected as speakers and panel participants.

KMTG attorney Roman Munoz is conducting a workshop entitled Leadership in Collective Bargaining -- Strategies for Success.  Check out the presentation on Saturday, December 1 from 8:30-9:45am at Moscone West.

Additionally, Addison Covert will be presenting two Table Talks on Friday, November 30 at Moscone West.  Addison, along with KMTG attorney Stacy Toledo, will discuss Planning for Your Successful 2013 Bond Election from 8:30-9:45am.  Addison and Meghan Covert Russell will review Your Charter School Responsibilities Under Proposition 39 from 10:00-11:15am.

If you are attending the CSBA meeting, you won't want to miss these insightful presentations by members of the KMTG Education group. We hope to see you there!

District Not Required To Locate Charter School At Its Preferred Location

In Los Angeles International Charter High School v. Los Angeles Unified School District (--- Cal.Rptr.3d ----, Cal.App. 2 Dist., October 11, 2012), a California Court of Appeal considered the challenge by a charter school to a school district’s decision to provide facilities at a site other than the Charter’s preferred location.  The appellate court ruled that Proposition 39 requires only that school districts make “reasonable efforts” to place charter schools “near” their desired location but does not require districts to provide charter schools with the specific requested location.

For further analysis of the case please see our Legal Alert.

Meghan Covert Russell

California Voters Stand Behind Education and Pass Proposition 30

Despite recent polls showing a decline in support for Proposition 30, it appears the California voters have rallied behind Governor Jerry Brown's plan to stave off sharp cuts to public education.  Proposition 30 temporarily raises sales tax and income tax in order to restore funding to the State's public education.  Passage of Proposition 30 will raise about $6 billion annually for education.  With 100% of precincts reporting, it appears that Proposition 30 secured 53.9% of the vote.

Proposition 38, a competing proposition backed by wealthy civil rights attorney Molly Munger, was handily defeated.

Proposition 32, the initiative that would have stripped unions of their ability to raise money through members in order to fund political activity, was also defeated.  Proposition 32 was opposed by the CTA and other labor organizations.

SB 1003 Amends Brown Act -- Cease & Desist Letter Required Prior to Bringing Complaint About Past Board Action

SB 1003 amends the Brown Act and adds section 54960.2 to the Government Code, which prohibits a district attorney or any interested person from filing an action to determine the applicability of the Brown Act to past actions of a legislative body unless the following conditions are met:  (1) the district attorney or interested person submits a cease and desist letter that clearly describes past action of the legislative body and the nature of the alleged violation, and (2) within 30 days from receipt of the letter, the legislative body fails to issue “an unconditional commitment to cease, desist from, and not repeat the past action that is alleged to violate” the Brown Act.

The cease and desist letter, pursuant to SB 1003, is in addition to the traditional cure or correct remedy for alleged continuing violations, which continues to exist under the Brown Act.  Public agencies should familiarize themselves with the new requirements, which include prescribed timelines for presenting allegations to the legislative body, and for the legislative body to respond.

For more information, read the entire KMTG Legal Alert.

Meghan Covert Russell

OCR Receives Record Number of Special Ed Complaints

OCR has received more complaints in the past three years (2009-2011) than ever before regarding disability-related issues.  The US Department of Education's Office for Civil Rights ("OCR") enforces federal civil rights laws that prohibit discrimination based on race, national origin, sex, age, and disability.  However, during the period between 2009-2011, 55% of the complaints received by OCR dealt with disability-related issues.  The top disability-related complaint concerned FAPE, but other issues raised by complaints included retaliation, academic adjustments, denial of benefits, and harassment.

OCR's publication, "Disability Rights Enforcement Highlights," can be accessed here.

Meghan Covert Russell

AB 340 Brings Pension Reform to California Public Employees

The Governor signed Assembly Bill 340 (“AB 340”) on September 12, 2012, and the new law will bring changes to California’s public retirement systems.  AB 340, formerly known as the California Public Employees’ Pension Reform Act of 2013, applies to public retirement systems, with the exception of the University of California system and charter cities and counties.  The major changes mandated by AB 1340 are set out below.  However, this bill is highly technical and contains multiple ambiguities. 

Read our Legal Alert for a general update.  Specific questions regarding the impact of the new legislation should be addressed on a case by case basis.

Meghan Covert Russell

Legislative Update: Principal Evaluations, Public Contract Bidding, Design-Build Contracts, API Scores, and Charter Schools

KMTG will be issuing a series of updates, as part of our Legal Alerts, on new legislation signed by Governor Brown.  All laws become effective January 1, 2013, unless otherwise stated.  Below is a brief summary of SB 1292, AB 1565, SB 1509, SB 1458 and SB 1290.

The Legislature declared in passing AB 1292 that governing Boards should “establish a uniform system of evaluations to guide principal growth and to improve principal performance while raising pupil achievement.”  SB 1292 is voluntary and districts are not bound to use these SB 1292 provisions.  SB 1292 adds sections 44670 and 44671 to the Education Code regarding evaluation of new principals and provide guidelines and suggested standards for evaluations.

AB 1565 requires prospective bidders for construction contracts for public school districts to complete a prequalification questionnaire and financial statement for projects of one million dollars or more.  AB 1565 adds section 20111.6 to the Public Contract Code and the new law will apply to projects that receive funding from the Leroy F. Greene School Facilities Act of 1998 or any funds from a future school bond.  Section 20111.6 will not apply to school districts with an average daily attendance of less than 2,500.  The new law will only apply to contracts awarded on or after January 1, 2014. 

Current law provides that until January 1, 2014, a governing Board for a school district or community college may enter into a design-build contract for the design and construction of a facility, if statutory-specified requirements are met.  SB 1509 extends the authority for governing boards of school districts and community colleges to enter into design-build contracts until January 1, 2020.  Additionally, SB 1509 specifically provides that “it is the intent of the Legislature that design-build procurement does not replace or eliminate public bidding.”

SB 1458 alters the method by which the Academic Performance Index (API) is calculated.  SB 1458 eliminates the requirement that API scores be used to measure the progress of specified schools and rank all public schools for the purpose of the High Achieving/Improving Schools Program.  SB 1458 also changes the requirement that standardized testing account for at least 60% of the API to no more than 60% starting in 2016. 

SB 1290 requires county offices of education or school districts which approve charter schools to take into account subgroup growth when renewing a charter.  SB 1290 adds the requirement that “‘[p]upil outcomes shall include outcomes that address increases in pupil academic achievement both school-wide and for all groups of pupils served by the charter school,” which “means a numerically significant pupil subgroup . . .  served by the charter school.”

Legal Alerts are available on our website, or if you are interested in receiving email notification of our Legal Alerts, please email us at kmtgalerts@kmtg.com

Meghan Covert Russell

It's Election Season: Inform, Don't Advocate

It's hard to escape the blitz of TV commercials and the barrage of signs along sidewalks and the highway.  It's election season.  So what should school officials remember?  Inform, don't advocate.

Education Code section 7054 prohibits the use of district funds, services, supplies or equipment for the purpose of urging the support or defeat of any ballot measure or candidate.  Below are some do's and don'ts for this election season.

Do's for Election Season:

• A board member may engage in political activity as a private citizen, as long as it doesn't involve the use of public funds.  Board members may indicate their titles when urging support for a ballot measure, but should make clear that his/her title is for identification purposes only.
• A board member may attend a citizens group at the request of a group to discuss the reasons why the governing board of the district called an election to submit to the voters of the district a proposition for the issuance of bonds and for purposes of responding to inquiries from the citizens group.
• The board may adopt a resolution in support or in opposition of a legislative proposal at a regular meeting where the public is given the opportunity to express its views.  The language must be “simple, measured, and informative” and may not “urge” members of the public to take any action in support or opposition to the measure.
• A school district may provide informational materials to the public regarding a ballot measure but must ensure that any such materials are purely informational utilizing objective facts which are consistent with the normal communication the district uses to address other topics.
• School districts may make a school forum available to the public to discuss a ballot measure or issue so long as the forum is made available to all sides on an equitable basis.  If the district chooses to make a facility available to one group, then all groups and sides must be given the opportunity to appear. 

 Don'ts for Election Season:

• No campaign support or contributions may be sought on school property during school hours.
• No political activities on school property may be conducted during school hours.
• No school equipment may be used for the reproduction of campaign materials.
• No school supplies or funds may be used for campaign materials which support or oppose a particular candidate.
• No campaign materials may be posted on school property.
• No campaign materials may be disseminated through district mail services or placed in staff mailboxes.
• Students may not be used to write, address, or distribute campaign materials.
• No campaigning for a particular candidate may take place during a school board meeting. 

Chelsea Olson
Meghan Covert Russell

Legislative Update: School Fees, Layoff Notice, Bullying, and Student Discipline

KMTG will be issuing a series of updates, as part of our Legal Alerts, on new legislation signed by Governor Brown.  All laws become effective January 1, 2013, unless otherwise stated.  Below is a brief summary of AB 1575, AB 1908, AB 1732, and AB 1729. 

AB 1575 prohibits public school students from being required to pay a fee for participation in an educational activity.  The new law applies to all public schools, including charter and alternative schools.  All supplies, materials, and equipment that a pupil needs to participate in educational activities must be provided free of charge.  However, the new law provides that it should not be interpreted to prohibit a school from soliciting voluntary donations, voluntary participation in fundraising activities, or from providing prizes or recognition to students for voluntarily participating in fundraising activities.

AB 1908 extends the period of time in which notice must be given before a classified employee may be subject to layoff, amending Education Code section 45117 and section 8801.  AB 1908 requires that a school district or community college district give a classified employee written notice of not less than 60 days before the layoff date if the termination date of any specially funded program is other than June 30.  AB 1908 further provides that, if a layoff is the result of a bona fide reduction or elimination of the service being performed by any department, the school district or community college district must give classified employees subject to layoff for lack of work notice not less than 60 days prior to the effective date of layoff.

AB 1732 clarifies the definition of what constitutes bullying by means of an electronic act, and includes posting on a burn page or impersonating another student.  Additionally, AB 1732 specifically provides that “an electronic act shall not constitute pervasive conduct solely on the basis that it has been transmitted on the Internet or is currently posted on the Internet.”

AB 1729 gives school administrators more flexibility in disciplining students, including alternatives to suspension or expulsion that are age appropriate and aimed at correcting the specific behavior.  Suspension for first time offenses is still allowed under Section 48900(a) through (e), without first attempting other means of correction.  However, Section 48900.5 is amended to eliminate language that allows administrators to suspend students for first time offenses under Section 48900(f) through (r) based on a finding that the student causes a danger to persons or property or threatens to disrupt the instructional process.  Section 48900.5 will now permit suspension for first time offenses under Section 48900(f) through (r) if “the pupil’s presence causes a danger to persons.”

Legal Alerts are available on our website, or if you are interested in receiving email notification of our Legal Alerts, please email us at kmtgalerts@kmtg.com

Meghan Covert Russell

Potential District Liability for Negligence of Supervisory Employees

The California Supreme Court concluded that a public school district may be held vicariously liable for the negligence of its administrative and supervisory employees for hiring, supervising and retaining an employee who sexually harassed and abused a student.  (C.A. v. William S. Hart Union High School District, 53 Cal.4th 861 (2012).)  This liability also potentially extends to individual administrators.

Pursuant to the Court’s decision, school administrators have an ongoing duty to appropriately hire, train and supervise their employees.  Administrators who are aware of any claims of employee misconduct must promptly address charges of misconduct through a thorough and well-documented investigation and take appropriate disciplinary measures.  Otherwise, there is a possibility of liability for both the employing district, and individual administrators.

For more information please read the Legal Alert.

Meghan Covert Russell

Deciding When to Allow Members of the Public to Place Items on the School Board Meeting Agenda

A California appellate court has ruled that a school board did not abuse its discretion when it refused to place an item on its agenda where the proposed item did not directly relate to school district business.  The court held the school district had discretion to refuse an item proposed by a parent to change an activity at a middle school from one promoting anti-bullying awareness for gay, bisexual, lesbian and transgender students to an “all inclusive anti-bullying day.”  (Mooney v. Garcia (--- Cal.Rptr.3d ----, Cal.App. 6 Dist., June 26, 2012).

The Education Code allows members of the public to place an item on the governing board’s agenda where that item is directly related to district business.  However, school districts do retain discretion to determine whether that item is “directly related to school district business” within the meaning of the Education Code.  If the Governing Board determines that the agenda item is not directly related to school district business, then the district may refuse to allow the item to be placed on that meeting’s agenda.

For more information please see our Legal Alert.

Meghan Covert Russell

Extra Password Protection For Employees and College Students Thanks to AB 1844 and SB 1349

Two bills were recently chaptered that provide employees and college students protection from the prying eyes of employers and college admissions. 

Both AB 1844 (employers) and SB 1349 (colleges) prohibit requiring employees or students to (1) disclose their usernames or passwords for accessing personal social media, (2) access their personal social media in the presence of the employer or college’s representative, or (3) divulge any social media information. 

Under both bills, social media is defined “as an electronic service or account, or electronic content, including, but not limited to, videos, still photographs, blogs, video blogs, podcasts, instant and text messages, email, online services or accounts, or Internet Web site profiles or locations.”

AB 1844 does not prohibit an employer from asking an employee to divulge personal social media that is relevant to an investigation of employee misconduct or violation of applicable laws and regulations.

SB 1349 does not affect the rights or obligations of a college to protect against and investigate alleged student misconduct or violation of applicable laws and regulations or to take any adverse actions against a student or prospective student or student group for any lawful reason.

For more information, please see our Legal Alert.

Meghan Covert Russell

SB 1458 Changes Way Schools Calculate API

Yesterday Governor Brown signed SB 1458 into law, which alters the way APIs are calculated.

The Academic Performance Index (API) measures the academic performance of schools and of students, and is currently used to rank all public schools for the High Achieving/Improving Schools Program.  Currently API takes into a variety of indicators, including graduation rates and student standardized test scores such as the STAR and CAHSEE.  Prior to SB 1458, test results constituted at least 60% of the API. 

With the adoption of SB 1458, several of these factors will change.  SB 1458 eliminates the requirement that API scores be used to measure the progress of specified schools and rank all public schools for the purpose of the High Achieving/Improving Schools Program.  SB 1458 also changes the requirement that standardized testing account at least 60% of the API to no more than 60% starting in 2016. 

A copy of the chaptered bill can be found here.

Meghan Covert Russell

BSC Wants Your Input!

The Building Standards Commission ("BSC") recently initiated formal rulemaking and public review for portions of the 2012 triennial code update to the California Building Standards Code ("Code").

Proposed changes include requiring new construction on existing sites to be subject to provisions of the California Green Building Standards Code ("CalGreen").  Currently, compliance with CalGreen is only required for new construction on new sites while compliance for most other construction is voluntary.

The BSC is currently accepting written comments through October 15, 2012.  BSC proposals, including the CalGreen proposal discussed above, can be accessed here.  Separately, comments on proposals regarding plumbing, mechanical, electrical, health facility, and administrative standards will be accepted through October 8, 2012; these proposals can be accessed here.

Adopted changes to the Code will go into effect January 1, 2014. 

Meghan Covert Russell

Parentage Bill (SB 1476) Passes Assembly

SB 1476 (Leno) passed through the Assembly and is now awaiting approval by the State Senate.  SB 1476, which would amend and add to the Family Code, would permit a court, in appropriate cases, to find that a child has more than two legal parents.

Current law allows a child to have only two legal parents.  SB 1476 would allow a court to determine that a child has more than two natural or adoptive parents if it is "required to serve the best interests of the child."  The court, in determining the best interests of the child, looks to the nature, duration, and quality of the presumed parents' relationship with the child, and the benefit or detriment to the child of continuing those relationships.  If the child has more than two legal parents, not all parents are required to share legal or physical custody of that child.

The determination that a child has more than two parents has potential ramifications for school districts as well.  Obviously districts are required with certain parental notification and participation requirements, from notifying parents of IEP meetings, to school choice, to providing student records.  Involving more than two parents in this process is something that may come about if SB 1476 is chaptered into law.  Currently, Education Code section 51101 discussed parental rights relating to their child's education.

More information about SB 1476 can be accessed here.

Meghan Covert Russell

AB 1451: Concussion Training for High School Coaches

On August 17, 2012, AB 1451 was chaptered into law.  AB 1451 adds new requirements to the High School Coaching Education and Training Program ("HSCTP") regarding training for coaches about how to identify concussions and appropriate responses.  Scientific studies have raised concerns about the long-term effects of head injuries, including concussions, on young athletes.

Currently the California Insterscholastic Federation ("CIF") offers training programs to high school coaches.  Coaches must also compete a CPR/first aid course every two years.  AB 1451 adds the requirement that coaches receive training on concussions as well.  The training may be fulfilled through free, online or other types of courses.

The Centers for Disease Control reports that approximately 3 million sports and recreational concussion occur every year.  Football and soccer have the most concussions for high school athletes.

The chaptered bill, AB 1451, is available here.

Meghan Covert Russell

Legal Alert Update: Court Of Appeal Strikes Down Consent Decree Between LAUSD and UTLA Regarding Teacher Layoffs

In May 2010, the Los Angeles County Superior Court surprised the school and legal community when issuing a preliminary injunction ordering the Los Angeles Unified School District (“LAUSD") to reinstate permanent, probationary, and long-term substitute teachers at three middle schools to resolve students’ claims that teacher layoffs disproportionately impacted the students’ right to equal educational opportunities. (Reed v. State of California, etc., Los Angeles Unified School District, May 13, 2010).  However, the court of appeal recently reversed this judgment.  The court of appeal found that the consent decree potentially abrogated rights of union teachers, United Teachers Los Angeles (“UTLA”) members, and the UTLA is entitled to a decision on the merit of the claims made by the students.  (Reed v. United Teachers Los Angeles,--- Cal.Rptr.3d ----, Cal.App. 2 Dist., August 10, 2012).

For more information, please read the entire Legal Alert here.

Meghan Covert Russell

Back to School: Is Your Staff Trained to Deal with Student Emergency Medical Issues?

SB 161 (Education Code section 49414.7), which became effective on January 1, 2012, authorizes non-medical school employees with voluntary emergency medical training to provide, in the absence of a credentialed school or licensed nurse, emergency medical assistance to students with epilepsy who are suffering from seizures.  This law also applies to charter schools.

The California Department of Education ("CDE") was required to post guidelines on the implementation of SB 161 by July 1, 2012, but was unable to fulfill this requirement through the normal rulemaking process.  In the mean time, the CDE has posted Emergency Regulations, which are currently in effect.  Additionally, FAQs regarding SB 161 are posted on the Department of Education's website here.  More information from the CDE on SB 161 and its implementation can be accessed here.

On a related note, Education Code section 49414.5 permits non-medical school employees with voluntary emergency medical training to provide emergency care to students with diabetes who are suffering from severe hypoglycemia.

Meghan Covert Russell

AB 2537: An Assembly Bill aims to tackle California’s high rate of suspension in schools by reducing the number of offenses which warrant automatic suspension

Assemblyman Manuel Perez has introduced AB 2537 to reduce the number of suspensions handed out in Californian schools by removing some categories of automatic suspension. Currently students are automatically suspended for carrying firearms, explosives or knives, sexually assaulting someone or selling drugs. If AB 2537 becomes law then only the carrying of firearms or knives will warrant an automatic suspension. Disciplinary action for the other offenses would be left to the discretion of the school concerned.

The bill will also remove the requirement for school principals to report illegal activities to law enforcement authorities. Furthermore, the bill will prohibit school boards from expelling students unless ‘other means of correction are not feasible or have repeatedly failed to bring about proper conduct.’

The bill is being introduced to tackle the large number of schoolchildren in California who receive a suspension during the school year. In the 2009-2010 school year 7% of all children received at least one suspension.

For the entire text of AB 2537 click here.

Sirenia Jimenez, summer associate

Second Circuit Says Cheerleading Isn’t a Sport

The Second Circuit Court of Appeals has ruled that competitive cheerleading isn’t a sport. In doing so, the federal court of appeals upheld a 2010 lower court decision, Biediger v. Quinnipiac Univ., where a women’s volleyball team of Quinnipiac University sued in an effort to stop the school from dissolving the team. The team alleged Title IX violations, which requires schools to afford equal participation opportunities in varsity sports to female students. Quinnipiac claimed that it made up the loss of the volleyball team with opportunities in other sports, including more than two dozen positions on the school’s cheerleading team. The courts had to decide whether cheerleading qualified as sport under Title IX.  The answer, for now, is no.

The Second Circuit stated in its decision:

"[W]e acknowledge record evidence showing that competitive cheerleading can be physically challenging, requiring competitors to possess “strength, agility, and grace.”  Similarly, we do not foreclose the possibility that the activity, with better organization and defined rules, might some day warrant recognition as a varsity sport. But, like the district court, we conclude that the record evidence shows that that time has not yet arrived."

For the entire opinion click here.

Sirenia Jimenez, summer associate

Physical Fitness = Mental Fitness?

A study recently presented at the American Psychological Association's (APA) 120th Annual Convention points to evidence that physical fitness is correlated with better academic performance.  The study found that cardiorespiratory fitness had an impact on middle school boys' and girls' reading and math test scores.

It wasn't just physical fitness that impacted test scores either.  The study also determined that social support was related to higher reading scores for boys.

As educators are well aware, students' academic performance is affected by all areas of children's lives, ranging from physical fitness to emotional well-being.  Encouraging physical fitness is important in our schools, not only for the physical health of our children, but also for their academic performance 

For more information, please visit the American Psychological Association's briefing here.

Meghan Covert Russell

Brown Act Refresher: Serial Meetings

There are so  many complex ins and outs to the law, that's why we've decided to start posting "Refreshers" on some of the most common laws that school districts encounter, including the Brown Act, the California Public Records Act, conflicts of interest, discipline/dismissals, and leave.  These posts are intended to draw your attention to provisions of the law that might be overlooked or forgotten -- sometimes we just need a little refresher!

Brown Act Mistake: Using email to debate rather than update.

Why This Is A Problem: Using email communication to debate an issue, rather than discussing the issue in open (or closed) session, may constitute a serial meeting.  Serial meetings are a series of communications, each of which individually involves less than a quorum, but when viewed as a whole, involve a majority of the board's members.  Serial meetings can be done in person, over the phone, or via email communication.  Serial meetings violate the Brown Act if they are done for the purpose of developing a concurrence as to action to be taken, including discussing or debating issues.  The intent of the Brown Act is for board deliberation and action to be taken openly, and serial meetings violate this goal of transparency.

Brown Act Solution: Email should be used to update board members, but should never be used to discuss or debate issues.  Discussion meant to develop a concurrence should instead be made in an open meeting (or closed session when legally appropriate).

Meghan Covert Russell

Public Records Act Refresher: Records Requests

There are so  many complex ins and outs to the law, that's why we've decided to start posting "Refreshers" on some of the most common laws that school districts encounter, including the Brown Act, the California Public Records Act, conflicts of interest, discipline/dismissals, and leave.  These posts are intended to draw your attention to provisions of the law that might be overlooked or forgotten -- sometimes we just need a little refresher!

The California Public Records Act ("CPRA") (Government Code section 6250 et seq.) states that the public is entitled to inspect or obtain copies of identifiable public records.  The intent of the CPRA is to provide the public with access to information.  Requests for documents do not have to be made in writing; requests may be made orally.  The public agency is required, to the extent reasonable under the circumstances, to assist the public in making a focused and effective request for identifiable records.  This may include confirming the request in writing in order to clarify the request and eliminate any confusion about what is being requested. 

Meghan Covert Russell

AB 1732: Clarification of Cyberbullying Law

AB 1732, which was chaptered on July 23, 2012, clarifies existing law related to disciplining a student for cyberbullying.  Current law (Education Code 48900) outlines the requirements for suspending or expelling students, including discipline for bullying.  Bullying is defined as "any severe or pervasive physical or verbal act or conduct, including communications made in writing or by means of an electronic act, which includes, among other tings, a post on a social network Internet Web site, and including one or more acts, as specified, committed by a pupil or group of pupils, directed toward one or more pupils that has or can be reasonably predicted to have one or more specified effects."  AB 1732 identifies specific conduct that constitutes "a post on a social network Internet Web site," including creating a credible impersonation of a student and/or creating a false profile online (also known as a "burn page").  AB 1732 also notes that an electronic act does not become "pervasive conduct" merely on the basis that it has been transmitted or posted on the Internet.

For the entire text of AB 1732 click here.

Meghan Covert Russell

The Summer Olympics and Celebrating 40 Years of Title IX

2012 marks the 40th anniversary of the passage of Title IX, which prohibits sex discrimination in public education.  Title IX provides that "no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity."  Although Title IX ensures that girls and boys receive equal access to science and math classes, it is also notable for ensuring equality in high school and collegiate athletics.

Today also marks the opening ceremonies of the 2012 Olympics held in London.  For the first time, the US will be sending more female Olympic athletes than male athletes.  Scott Blackmun of the US Olympic Committee noted that this is "a true testament to the impact of Title IX, which in its 40-year history has increased sport opportunities for millions of females across the United States."

Women were not allowed to compete in the modern Olympics until the 1900 Paris games.  With the introduction of women's boxing, this year marks the first time in history when women are able to participate in all Olympic sports.  And for the first time in history all participating countries will send female athletes to the Olympic games.

For more information, including a slide show, check out the Huffington Post article here.

Meghan Covert Russell

Nominate an Outstanding Young Educator by August 1!

The ASCD (formerly known as the Association for Supervision and Curriculum Development) is accepting nominations (including self-nominations) for the 2012 Outstanding Young Educator Award (OYEA) until August 1.  Winners will be presented the OYEA award at the annual ASCD conference.

For more information visit the ASCD's website here.

Meghan Covert Russell

STAR Test Results Delayed Due To Security Breach

The results of the California STAR test are expected to be delayed about two weeks after it was discovered that several school sites may have breached standardized testing protocol.  Over 400 images related to the test were found online, including images of actual test questions.

This breach may have significant impacts on the schools were the security breaches occurred, including a school not receiving Adequate Yearly Progress (AYP) and/or Academic Performance Index (API) results which may in turn affect funding.  It is important that all school site test administrators/proctors as well as students take the testing procedures seriously.  Failure to do so could result in serious penalties that affect the school as a whole.

For more coverage on this, see the Los Angeles Times article here.

Meghan Covert Russell

A Clarifying Change to the English Language Development Standards

AB 124, which became effective January 1, 2012, establishes a process to update, revise, and align the English Language Development Standards to the Common Core State Standards in English language arts, and requires the State Superintendent and the State Board of Education to present lawmakers with a schedule and implementation plan for integrating the revised standards.

Existing law requires each school district that has one or more pupils who are English learners to assess the English language development of each of those pupils upon initial enrollment in order to determine the level of proficiency of those pupils, and thereafter to assess each of those pupils annually until the pupil is redesignated as English proficient.  Existing law further requires the State Board of Education to approve standards for English language development for pupils whose primary language is a language other than English, and that these standards be comparable in rigor and specificity to the statewide academically rigorous content standards for English language arts.

This new measure requires the State Superintendent to convene a group of experts in English language instruction, curriculum, and assessment to assist the State Superintendent in updating, revising, and aligning the English language development standards. It also requires the State Superintendent to present the updated, revised, and aligned English language development standards to the State Board of Education on or before August 31, 2012. The measure further requires the State Board of Education to adopt, reject, or revise the standards presented by the Superintendent on or before September 30, 2012.

Additionally, the measure requires the State Superintendent and the State Board of Education to present to the Governor and the appropriate policy and fiscal committees of the Legislature a schedule and implementation plan for integrating the new English language development standards into the state public education system.

The Full Text of AB 124 can be found here.

Sirenia Jimenez, summer associate

President Obama Announces Plan for STEM Master Teacher Corps

Today the White House announced the President's plan to dedicate $1 billion to create a STEM (Science, Technology, Engineering and Math) Master Teacher Corps.  The program will begin in 50 locations with 50 exceptional STEM teachers leading the way, but plans are to expand to 10,000 STEM teachers within the next four years. The program will reward high-performing teachers with salary stipends of $20,000 per year.

Plans were also announced to dedicate $100 million from the Teachers Incentive Fund to help schools recruit STEM teachers.  These teachers would then serve as mentors to fellow STEM teachers within the schools districts.

This proposal comes out of the recommendations of the President's Council of Advisors on Science and Technology, which included encouraging teacher cooperation in order to improve STEM education across the country and retaining talented STEM teachers.

Read more about the President's plan here.

Meghan Covert Russell

Kindergarten Readiness Act

The Kindergarten Readiness Act (SB 1381) was passed in September 2010 and is set to go into effect for the 2012-2013 school year.  It is part of State Superintendent Torlakson’s Blueprint for Great Schools Initiative, which focuses on preparing students from kindergarten and beyond. The measure changes the required birthday admission to kindergarten and first grade.

Previously, children would enter kindergarten if they were 5 years old on or before December 2 and children entering first grade had to turn 6 years old on or before December 2.  Under the new act, the dates for both grades will be moved up to November 1 for the 2012–13 school year, October 1 for the 2013–14 school year, and September 1 for the 2014–15 school year and each school year thereafter.

The California Legislative Analyst's Office notes:

• California’s kindergarten start date is one of the latest in the nation;
• Beginning school at an older age would benefit children’s academic performance and social development;
• Children who are older when they start kindergarten tend to perform better on standardized tests; and
• Research suggests changing the kindergarten start date may lead to positive student outcomes, including less chance of grade retention and higher earnings as an adult.

The Full Text of SB 1381 can be found here.

Sirenia Jimenez, summer associate

Brown Act Refresher: Make Sure to Post Agendas on the District Website!

There are so  many complex ins and outs to the law, that's why we've decided to start posting "Refreshers" on some of the most common laws that school districts encounter, including the Brown Act, the California Public Records Act, conflicts of interest, discipline/dismissals, and leave.  These posts are intended to draw your attention to provisions of the law that might be overlooked or forgotten -- sometimes we just need a little refresher!

AB 1344, which went into effect on January 1, 2012, changes some of the requirements of the Brown Act.  AB 1344 requires local educational agencies that maintain a website to post the agenda of a regularly scheduled meeting at least 72 hours in advance on their website (and 24 hours in advance for special meetings).  Although AB 1344 doesn't change the timeline for posting notice, it requires that if a district has a website, that agendas must be posted on that website.

The full text of AB 1344 can be found here.

Meghan Covert Russell

New Requirements for National School Lunch Program

The Healthy, Hunger-Free Act of 2010 provided the most comprehensive changes to the school nutrition program in over a decade.  The Act is aimed at fighting childhood obesity and childhood hunger, two problems that continue to face our school children.

As part of the Act, significant changes were made to the federal requirements for school meals.  These changes include:

• A daily serving of fruit
• A daily serving of vegetables
• An increased quantity of combined fruits and vegetables
• Distinction between fruit and vegetables, and requirements for serving both
  
• Whole-grain rich grains
• Fat-free or low-fat milk
• Calorie minimum and maximum levels
• Sodium reductions
• Trans fat limits
• Saturated fat limits
• 3-year administrative review cycle

The new lunch requirements became effective July 1, 2012, the beginning of school year 2012-2013.  Changes to the breakfast program will be phased in starting July 1, 2013.

Although these changes reflect important change to federal law, California also has strict requirements for the sale of food and beverages to school children set forth in the California Education Code.

For more information on these changes, please visit the US Department of Agriculture's website on Nutrition Standards for School Meals.

Meghan Covert Russell

It's July 1: Do Your Anti-Bullying Policies Comply With The Law?

As of July 1, 2012, AB 9 requires that all school district anti-harassment/anti-discrimination board policies must include language prohibiting the intimidation and bullying based on the actual or perceived characteristics as set forth in Education Code 220. 

AB 9 also requires districts to have a complaint procedure in place for responding to allegations of bullying.

Do your board policies comply with the requirements set forth in AB 9?  If not, now is the time to revise them!

For past coverage of AB 9 and its requirements, please click here.

SB 1530 Defeated in Assembly

SB 1530, which would have changed the process by which school districts dismiss teachers accused of sexual, violent or drug-related offenses, has been defeated by the Assembly Education Committee.  SB 1530 was introduced by state Senator Padilla (D-Pacoima) in response to the teacher sex-abuse scandal at Miramonde Elementary School.  However, Senator Padilla is prepared to reintroduce the bill in the next session.

Although SB 1530 was supported by organizations such as ACSA and CSBA, the California Teachers Association (CTA) was strongly opposed to the bill, arguing it would dilute the due process rights of teachers. 

Obesity Correlated to Poor School Performance

A recent study has found that a student's obesity in elementary school is correlated to poorer performance on math tests than peers who were not obese. 

Researchers do not know why obesity and academic performance are correlated, but suggest that the difference in test scores could be attributed to emotional and/or health issues.  Obese children often feel lonely, sadness, and anxiety due to lack of social acceptance by peers.  These emotions may have an effect on their academic performance.  Researchers also posit that health conditions related to obesity may have a physical effect, interfering with a student's learning and attendance.

We all know that obesity is a major concern; one-third of California children are overweight or obese.  Not only does obesity cause physical problems such as diabetes and hypertension, but studies also suggest that obesity negatively affects emotional well-being of individuals.  Now obesity has been linked to poor academic performance, beginning in elementary school.   It is important to realize the effect that student health can have physically, emotionally, and academically.

What does your school do to help students learn about how obesity can harm them?  How does your school help alleviate obesity in students? 

To read the story from California Watch, click here.


Meghan Covert Russell

AB 1903 Would Prohibit Districts from Levying Level III Developer Fees

AB 1903 (Buchanan and Hagman), as proposed, would suspend the ability of school districts to levy Level III developer fees.  The bill is scheduled to be heard on Wednesday, June 20 in the Senate Education Committee.

Existing law enables districts to levy fees/charges against construction in the district for purposes of funding the construction or reconstruction of school facilities; these are known as Level I or Level II fees.  Current law permits districts to increase the levy if state funds for new school facility construction are not available; this is known as Level III fees.  Level III fees were intended to provide a safety net for districts by allowing districts to raise funds for construction even if state bond moneys were not available.

However, AB 1903 would immediately, if passed, suspend the Level III provisions of the law.  AB 1903 has the potential of preventing school districts from raising additional revenue for school construction projects where the state comes up short.  Districts would still be able to charge Level I and Level II fees, but would not be able to breach the gap of state funding by implementing Level III fees.

The text of AB 1903 is available here.

Constantine Baranoff
Meghan Covert Russell

Ohio Court Enters Judgment in Favor of Student Who Wore T-Shirt That Reads "Jesus Is Not a Homophobe"

A federal district court in Ohio has entered judgement in the case of Couch v. Wayne County Local School District, in favor of a high school student who wore a t-shirt that said "Jesus Is Not a Homophobe."  The case is another example of the tension between student free speech rights and the ability of administrators to regulate students. 

The student wore the shirt to school on the National Day of Silence, a day to draw attention to the effect of harassment and bullying of LGBT students.  The principal told the student he could not wear the shirt because it promoted religion within the school.  The student and his family sued the school district claiming the student right to wear the t-shirt was protected free speech.  The district claimed the shirt was sexual in nature and inappropriate in the school setting. 

The suit did not proceed to trial, but rather the court accepted an "agreed judgement" -- the parties agreed that the student was expressly permitted to wear the t-shirt to school whenever he wanted. 

This school free speech case is reminiscent of the Supreme Court's 2007 case Morse v. Frederick, also known as the "Bong Hits 4 Jesus" case in which the Court upheld the discipline for a student's drug-related speech at a school-sponsored, off-campus event.  However unlike Morse, the Ohio case did not relate to illegal drug use.

The traditional framework for analyzing an on-campus student free speech case comes from the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District.  In Tinker, students wore black armbands to protest the Vietnam War.  Out of this case arose the test for determining if school officials can regulate student speech -- students may be discipline if their speech/conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school."  The Tinker Test is still the basis for analyzing student free speech, although the Supreme Court's subsequent decisions have added additional factors to consider, such as whether the speech is advocating illegal drug use (Morse), whether the speech is obscene (Bethel School District #43 v. Fraser), or whether the school has a legitimate pedagogical concern in regulating the speech (Hazelwood v. Kuhlmeier).

It appears that the student's speech in Couch did not warrant discipline under any of the Supreme Court frameworks noted above.  There was no school disruption, it did not related to illegal drug use, it was not obscene and the school had no pedagogical concern.  It is important to note that although student speech may be regulated in some instances, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."

Meghan Covert Russell

Ninth Circuit Affirms Trial Court Decision in Waldorf Methods Case

Today the Ninth Circuit Court of Appeals upheld the decision of the trial court in favor of Sacramento City  Unified School District in the longstanding litigation over the use of Waldorf methods in public schools.  This case began in 1998 when a taxpayer group named PLANS (People for Legal Non Sectarian Schools) filed a federal lawsuit claiming that the use of Waldorf methods in public schools violated the First Amendment of the United States Constitution because it is part of "anthroposophy" which PLANS claimed is a new age religion.  The parties have battled this issue over the last 14 years with two bench trials and three trips to the Ninth Circuit. 

In  August 2010 there was a one day bench trial before United States District Court Judge Frank Damrell on the preliminary issue of whether anthroposophy is a religion for Establishment Clause purposes.  At the close of PLANS case, the school district moved for judgment on partial findings based on PLANS' complete failure to meet its burden of proving anthroposophy was a religion.  Judge Damrell entered judgment in favor of the school district and PLANS appealed to the Ninth Circuit.  KMTG attorney Michelle Cannon argued the case on behalf of Sacramento City Unified School District before the Ninth Circuit on May 17, 2012.

KMTG is thrilled that this case is finally resolved after so many years and is equally thrilled that Sacramento City Unified School District may continue to operate its very successful Waldorf methods charter schools.

For more information, please see our Legal Alert.

Michelle Cannon
Christian Keiner
Chelsea Olson

SB 1530 Teacher Dismissal Bill on the Move

Yesterday the California Senate passed SB 1530 (Padilla) in a 33-4 vote.  The bill will now move onto the state Assembly for review.  The bill passed the Senate without the proposed changes from Senate Republican Leader Bob Huff (R-Diamond Bar). 

The bill, as it stands, would significantly change the permanent teacher dismissal process.  Changes would include:

• Allowing Districts to initiate dismissals during the summer months.
• Allowing the introduction of evidence more than four years old for charges that involve sex offenses or controlled substances offenses as defined in Education Code sections 44010 and 44011, respectively.
• Hearings conducted solely by an administrative law judge ("ALJ")  for charges that involve sex offenses or controlled substance offenses.  The decision of the ALJ in these hearings would be advisory in nature and the final decision regarding the discipline would be determined by the school board.

For our earlier coverage on SB 1530 and other bills that would affect the teacher dismissal process, click here.


Meghan Covert Russell

Georgia School District Not Held Liable for Student's Suicide

This week the US District Court for the Northern District of Georgia ruled in favor of the Murray County School District on their motion for summary judgment in the case of Long v. Murray County School District.  The case has garnered national attention due to its focus on bullying.  Seventeen-year-old Tyler Lee Long ("Long"), who was diagnosed with Asperger's Syndrome, was the victim of severe, nearly constant bullying at his Georgia high school and eventually committed suicide.  Long's parents sued the Murray County School District alleging that their failure to intervene, investigate, correct, or train employees to adequately protect Tyler from bullying constituted deliberate indifference and was the cause of his decision to take his own life.

Long was subject to numerous instances of bullying throughout his time at Murray County High School, but often these instances were not observed by school staff nor reported to school staff.  Long's parents did email school staff with concerns about their son and school officials did respond by disciplining harassers and taking measures to prevent future harm.  However, Long's parents argued that the school's response failed to adequately address and stop the bullying.

Plaintiffs also alleged that the peer-on-peer harassment violated the ADA and Section 504 and that Long was discriminated against because of his disability.  Although the Court determined that Plaintiffs could potentially show that Long was (1) disabled, (2) harassed due to a disability, (3) that the harassment denied Long equal access to education, and (4) that the appropriate school officials had actual notice of the harassment, they were unable to show that (5) the Defendant's actions rose to the level of deliberate indifference.  According to the Court, "school officials will only be deemed deliberately indifferent if their response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances."  The Court noted that "although Plaintiffs establish that Defendants should have done more to address disability harassment, Plaintiffs fail to meet the high bar of deliberate indifference and demonstrate that Defendants' response was clearly unreasonable."  The evidence showed that the District investigated and responded to each reported incident.

Although the District was not held legally liable for Long's death, the case is an important lesson to students and staff that bullying is very real danger that deserves serious attention in our schools.  Students should be encouraged to report any instances of bullying they observe to school staff.  School officials should actively investigate any reports of bullying and appropriately discipline students.  Additionally, it should be noted that as in this case, students with disabilities are often the targets of bullying.  If students with disabilities are being bullied, the student's IEP team may want to address this in the IEP, or create a safety plan for the student.   

The ruling is available in its entirety here.

Meghan Covert Russell

US Department of Education's Labor-Management Collaboration Conference Underway

The 2012 Labor-Management Collaboration Conference, held by the US Department of Education, is currently underway in Cincinnati, Ohio.  The two-day conference encourages participating school district and state officials and union leaders to exchange ideas, share lessons, and encourage participants to engage in similar collaborative efforts when they return home.

More information is available at the US Department of Education's website, including live video of the opening and closing sessions.

Meghan Covert Russell

CASH School Facilities Leadership Academy Application Due Friday June 1

California's Coalition for Adequate School Housing ("CASH") has extended its deadline for applications for its annual School Facilities Leadership Academy ("Academy").  The Academy, now in its fifth year, is a partnership between CASH and the Fiscal Crisis and Management Assistance Team ("FCMAT").  The Academy is a  year-long program based in Sacramento that provides professional training to current and future school facility leaders in areas including modernization, new construction and maintenance. 

More information regarding the program and the application process is available here.

Meghan Covert Russell

Next Generation Science Standards Available for Review and Comment

The first public draft of the Next Generation Science Standards have been released.  The draft science standards are available for review and comment through June 1, 2012.

The Next Generation Science Standards is the result of collaboration between the National Research Council, the National Science Teachers Association, the American Association for the Advancement of Science, and Achieve.  The Framework for K-12 Science Education was released in July 2011 and the final Next Generation Science Standards are expected to be released and ready for adoption in the fall of 2012.

To read the complete draft science standards, please visit the Next Generation Science Standards website here.

Meghan Covert Russell

Legal Alert: LAO Examines Fiscal Oversight of Schools

The California Legislative Analysts Office ("LAO") recently released a report entitled "School District Fiscal Oversight and Intervention," in which it examined the State's fiscal oversight system for school districts.  In this report, the LAO compiled fifteen predictive factors of school districts that face fiscal distress, summarized the current system for fiscal oversight and intervention, and assessed how this system is functioning.

The LAO concluded in its report that the current system of fiscal oversight has generally been effective in ensuring the fiscal health of school districts and recommends preserving the current system in order to ensure sufficient support to prevent districts from requiring intervention.  The LAO noted that "the fiscal oversight system is especially crucial during challenging fiscal times, when school districts often must deal with uncertain revenues, large state deferrals, and possible trigger reductions." 

Please see our Legal Alert here for more information.

The complete LAO report is available here.

Meghan Covert Russell

Happy Teacher Appreciation Week!

This week, May 7-11, marks the national Teacher Appreciation Week!

Below is an excerpt of a poem from Taylor Mali's What Teachers Make:

"You want to know what I make?"
"I make kids wonder."
"I make them question."
"I make them criticize."
"I make them apologize and mean it."
"I make them write."
"I make them read, read, read."
"I make them spell definitely beautiful, definitely
beautiful, and definitely beautiful over and over and
over again, until they will never misspell either one
of those words again."
"I make them show all their work in math and hide it
all on their final drafts in English."
"I make them understand that if you have the brains,
then follow your heart...and if someone ever tries to
judge you by what you make, you pay them no
attention!"
"You want to know what I make?"
"I make a difference."

What does your district do to celebrate teachers? 

One simple thing anyone can do is to Tweet Teacher Week messages using the hashtag #thankateacher. 

For more ideas on how to thank a teacher visit the National Education Association website here.

Meghan Covert Russell

Teaching Younger Students Algebra -- Yes It Can Be (And Should Be) Done!

Math is a subject that is often challenging for a lot of students, and algebra can be an especially challenging subject that raises novel questions and asks students to think in a new way.  The National Assessment of Educational Progress ("NAEP") reports that the number of students taking Algebra I in 8th grade has doubled since 1986 (from 16% to 34%).  But, although California standards call for 8th graders to take Algebra I, a 2011 EdSource report found that 1/3 of those 8th graders who took Algebra I scored "below basic" or "far below basic."

These scores raise questions about how students are prepared for algebra, and is examined in Harvard Graduate School of Education's ("HGSE") May/June 2012 Harvard Education Letter, "The Algebra Problem."  HGSE suggests that students find algebra challenging because "it is a dramatic leap to go from the concrete world of computation-focused grade school math to the abstract world of algebra, which requires work with variables and changing quantitative relationships."

Tufts University researcher Barbara Brizuela says that algebra should be introduced to students earlier than middle school.  "Kids need to develop some comfort with these tools...babies are exposed to written and spoken language, and after six years we expect them to become somewhat fluent with that.  In math, we just drop it on them like a bomb."  Brizuela's research demonstrates that students who received weekly algebra lessons plus homework in elementary school performed better than their peers on algebra assessments in middle school.  Brizuela uses children's natural generalizing ability to "lure [them] into thinking about quantitative relationships that then become algebraic rules."  The result is that children use their natural mathematical reasoning. 

What methods have you used to teach algebraic reasoning to elementary school children?

The full HGSE May/June 2012 Harvard Education Letter, "The Algebra Problem," is available here.

Meghan Covert Russell

AB 2028 (Teacher Discipline & Dismissal) On the Move

AB 2028 (Knight and Smyth), which amends the procedure for disciplining teachers for misconduct, has passed through the Assembly Education Committee.  Among other changes to current law, AB 2028 would allow districts to initiate dismissal process during the summer months; would eliminate the 45 or 90-notice for unprofessional conduct or unsatisfactory performance; changes the Commission on Professional Competence to include only the administrative law judge, whose decision would be advisory in nature only with final decision being made by the governing board; and eliminate the prohibition of evidence more than four years old.

At least three other bills related to teacher misconduct were also introduced this year: AB 1681 (stripping teachers who are convicted of misconduct of their pensions), SB 1059 and SB 1530 (which both modify the notice and hearing procedures required for teacher dismissals, in line with AB 2028).

These bills were introduced in response to recent allegations of teacher misconduct, including the allegations against a Miramonte Elementary School teacher who has been charged with 23 counts of lewd conduct and who was under investigation for two years.

We will continue to monitor and report on the progress of these bills.

Meghan Covert Russell

Cyberbullying Education Needs to Begin Before Middle School Study Suggests

A new study by Stephanie Englander of Bridgewater University suggests that 83 percent of middle schoolers, 39 percent of fifth-graders, and 20 percent of third-graders have their own cell phone.  The study was conducted for the Massachusetts Aggression Reduction Center with the hopes of determining whether readily available technology, such as cell phones, plays a role in cyberbullying.

Cell phone use graph in Research Findings: MARC 2011 Survey Grades 3-12

(Credit: Elizabeth Englander/Bridgewater State University)

In her report, Englander recommends that "Education on cyberbullying and cyber-behaviors needs to begin well before Middle School ... Children are all online by third grade and over 20 percent report experiencing problems with peers online." Another interesting finding is that while in-school bullying decreases as children age, cyberbullying increases.

At what grade do your schools begin to address cyberbullying?  How do you talk to elementary students differently than high school students regarding cyberbullying?

Englander's full report is available here.

Meghan Covert Russell