CDE Publications Available to Help Implement Common Core State Standards

The California Department of Education ("CDE") has two publications available to help schools and students with the transition to the Common Core State Standards ("CCSS").  This week the CDE announced that these publications are now available in print form, in addition to the previously available electronic formats.

 The publications are:
California Common Core State Standards: English Language Arts and Literacy in History/Social Studies, Science and Technical Subjects (CA CCSS for ELA/Literacy)
California Common Core Standards: Mathematics (CA CCSSM)

Additionally, Tom Torlakson released a video explaining the importance of the transition to assessments based on the new CCSS.

The CCSS are a set of standards for English and math that are consistent across the 45 states that have adopted them since 2010.  More information on California's implementation of the CCSS can be round on the CDE's website, here.

For more information, please see the CDE's August 26, 2013 News Release available here.

Meghan Covert Russell

50 Years After "I Have a Dream"

Fifty years ago today, Dr. Martin Luther King Jr. capped the March on Washington with his influential "I Have a Dream" speech given at the steps of the Lincoln Memorial.

The progress this nation has made in the past 50 years is undeniable.  Today, our first African-American president will mark Dr. King's historic speech with a speech of his own.  However, the struggle to obtain equal rights is ongoing.  Equitable access to education, racial and gender equality, and LGBT rights all remain pressing issues today.  Reflecting on Dr. King's words spoken 50 years ago highlight both the progress we have made and the ground we have yet to cover.

Below is an excerpt from Dr. King's speech.  The complete speech is available at the National Archives by clicking here. 

"We have also come to this hallowed spot to remind America of the fierce urgency of Now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood...

"I say to you today, my friends, though, even though we face the difficulties of today and tomorrow, I still have a dream. It is a dream deeply rooted in the American dream.  I have a dream that one day this nation will rise up and live out the true meaning of its creed: 'We hold these truths to be self-evident, that all men are created equal.'

"I have a dream that one day on the red hills of Georgia, the sons of former slaves and the sons of former slave owners will be able to sit down together at the table of brotherhood.  I have a dream that one day even the state of Mississippi, a state sweltering with the heat of injustice, sweltering with the heat of oppression, will be transformed into an oasis of freedom and justice.

"I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.  I have a dream.  I have a dream that one day in Alabama, with its vicious racists, with its governor having his lips dripping with the words of "interposition" and "nullification" -- one day right there in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers..." 

~Dr. Martin Luther King, Jr., August 28, 1963

Meghan Covert Russell

Legal Alert Series: Education Legislation

KMTG will be publishing a series of Legal Alerts summarizing pertinent legislation to the education community.

In the first round, we examine AB 226 (school police workweek), AB 643 (student records), AB 1266 (sex-segregated programs and activities), SB 546 (layoff hearing terminology), SB 581 (bond accountability), and  SB 292 (sexual harassment).  To read about these recently passed bills, check out our Legal Alert.

Hughes Bill Repealed as Part of Trailer Bill AB 86

Another component of the budget trailer bill, AB 86, repeals the “Hughes Bill” mandate imposed on Local Educational Agencies (“LEAs”) to provide specific behavioral assessments and interventions for special education students exhibiting serious behavioral problems, beyond those required under the Individuals with Disabilities Education Act (“IDEA”). AB 86 revises Education Code sections 56520 through 56525 to more closely resemble the requirements of the IDEA.  AB 86 also provides that the Superintendent of Public Instruction must repeal regulations set forth at 3001 (d)-(g) and (ab) and 3052 of Title 5 of the California Code of Regulations.  The new statutory provisions found in the Education Code are “intended to provide the clarity, definition, and specificity necessary for local educational agencies to comply with the [IDEA]” and must be implemented by those “agencies without the development by the Superintendent and adoption by the state board of any additional regulations.”  

For more information on the repeal of the Hughes Bill, see KMTG's Legal Alert.

Legislature Extends Requirement to Offer Surplus Facilities to Charter Schools

A law requiring school districts to offer surplus property to charter schools, which was set to expire at the end of June, has been extended until July 1, 2016.

Education Code section 17457.5, as originally enacted, was set to become inoperative on June 30, 2013 and repealed as of January 2014.  However, as part of the budget trailer bill, AB 86, this section was extended through July 1, 2016.

Several other changes were also made, including that the offer only needs to be made to a charter school with projections of at least 80 students at the time of the offer and that property sold or leased to a charter school must be exclusively used to provide direct instruction or instructional support (the revisions remove the requirement that the property be used for instruction for not less than 5 years).  Additionally, facilities that are built by the charter school on property acquired through this process must be Field Act compliant. Finally, if a charter school decides to sell property obtained via this process, it can only use the proceeds for capital outlay, maintenance, and other facilities related costs.

The full budget trailer bill, AB 86, is accessible here. 

Meghan Covert Russell

Senate Bill 73: Implementation of Proposition 39 Funding for Energy Efficiency Projects and Clean Energy Jobs

On June 27, 2013 the Governor signed into law Senate Bill 73 (“SB 73”), implementing Proposition 39, the California Clean Energy Jobs Act, approved by the voters on November 5, 2012 to provide funds to improve energy efficiency and create clean energy jobs.  SB 73 provides that for five fiscal years, commencing with the 2013-2014 Fiscal Year, up to $550,000,000 annually will be transferred from the General Fund to the Clean Energy Job Creation Fund.  Of that amount, for the upcoming 2013-2014 Fiscal Year, $28,000,000 will be transferred from the Clean Energy Job Creation Fund to the Education Subaccount for low-interest and no-interest revolving loans for eligible projects and technical assistance made available to local educational agencies or “LEAs” (school districts, county offices of education, charter schools, or state special schools) and community college districts.  Funds will also be available to develop and implement a competitive grant program for eligible community-based and training workforce organizations serving disadvantaged youth and veterans.  The balance of the Clean Energy Job Creation funds will be allocated 89% to LEAs and 11% to community college districts.  For LEAs, allocation of such funds will be based on average daily attendance and students eligible for free and reduced-price meals for the prior year.  Further guidelines will be developed and promulgated in consultation with the Department of Education and the Chancellor of the California Community Colleges, including how LEAs will submit energy project expenditure plans to the California Energy Commission for approval and how the California Department of Education will disburse funds.  Please note that the deadline for LEAs with 1,000 or less ADA to receive the current and subsequent year Proposition 39 funding entitlements has passed.

The full text of SB 73 can be found here.

More detailed information on the California Clean Energy Jobs Act (Proposition 39) can be found here and here.

The Coalition on Adequate School Housing ("CASH") has also provided information regarding Proposition 39 Implementation Program -- Funding Allocation for Energy Products.



Stacy Toledo

AB 1266 Clarifies Existing California Law Regarding Access to Programs and Facilities by Transgender Students

This week Governor Brown signed AB 1266, which adds section 221.5(f) to the Education Code.  It provides "A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil's records."

News outlets pounced on the new law, some sides celebrating the law and others criticizing it.  However, what most stories failed to mention was that AB 1266 didn't grant transgender students any new rights, it merely clarified existing laws.  Education Code section 220 already provides that "No person shall be subjected to discrimination on the basis of ... gender, gender identity, gender expression, ... sexual orientation, ... in any program or activity conducted by an educational institution that receives, or benefits from, state financial assistance or enrolls pupils who receive state student financial aid."  (emphasis added)

The new law clearly provides that students are to be allowed to participate in sex-segregated athletic teams and use sex-segregated facilities, such as locker-rooms, based on their gender identity.  This is consistent with the provisions of Section 220 which prohibit discrimination of students in any school activity based on their gender identity or gender expression.

The new law goes into effect on January 1, 2014.

Meghan Covert Russell

Why does teacher evaluation based on student performance continue to be a hot topic?

U.S. Secretary of Education Arne Duncan recently granted seven California school districts waivers of some requirements of the No Child Left Behind Act (NCLB) in exchange for, among other things, a promise to include student performance data in the evaluations of teachers.  The California Teachers Union immediately criticized that waiver deal and continued to oppose using student data in locally negotiated evaluation procedures. 

The question is: why does this continue to be such a hot button issue?  Since the 1970's, Education Code section 44662(b)(1) has required districts to evaluate certificated employee performance based, in part, on "the progress of pupils" toward the standards of achievement set by the governing board.  Los Angeles Unified School District was recently successfully sued by a citizen group to require compliance with that statute.  The District has now implemented a new evaluation procedure after reaching agreement with the United Teachers of Los Angeles.  Other districts have been threatened with similar litigation and are deciding how to best comply with the statute while maintaining an effective teacher evaluation process.  Given the statute as recently enforced, it does not seem like the seven California districts gave up anything significant in exchange for the federal waivers.

Moreover, it is difficult to understand why so much energy is being expended around this issue by advocates of using student data.  The literature on teacher evaluation by such experts as Linda Darling-Hammond, Chairperson of the Commission on Teacher Credentialing, says that student performance data is only one of many indicators of teacher quality, and not a factor that has a major effect on improving student achievement.  There does appear to be agreement that "value-added models" (VAMs) can be instructive, meaning that it helps to track the change in student performance while under the instruction of a particular teacher.  However, even VAMs are inconsistent due to the influence of multiple factors outside the teacher's control.  While it may not be a powerful tool for actual school improvement, the student data issue is still a tool available to those who are critical of the teachers' union and the entire public school system.

The bottom line for school districts is that state statute, court decisions, and the conditions of federal grants all point toward inclusion of student data in certificated employee evaluations.  The lack of a strong research basis and the continued opposition of the teachers' union notwithstanding, the writing on this issue appears to be "on the wall."

Why do you think teacher evaluations are such a hot topic? Do they deserve this much attention?  Feel free to add your thoughts/opinions in the comments section below.

Michael E. Hersher

California Supreme Court Rules That School Employees Can Administer Insulin Shots

Today the California Supreme Court ruled that school employees can administer insulin shots to diabetic students when a nurse is not available.  This decision arises in the context of a continuing shortage of school nurses available to administer the shots and a federal class action lawsuit alleging that California schools have failed to provide adequate health services to students as required by law.  In 2007 the California Department of Education ("CDE") advised school districts that a trained school employee may administer insulin when a school nurse is not available.  The case at issue in today's decision was filed by the American Nurses Association and challenged CDE's advice as "condoning the unauthorized practice of nursing."

The California Supreme Court concluded that "California law expressly permits trained, unlicensed school personnel to administer prescription medications such as insulin in accordance with the written statements of a student's treating physician and parents...and expressly exempts persons who thus carry out physicians' medical orders from laws prohibiting the unauthorized practice of nursing."  Therefore, it is up to each student's treating physician and parent to determine whether insulin may be administered by an unlicensed school employee.  Today's ruling is in line with the "practical reality that most insulin administered outside of hospitals and other clinical settings is in fact administered by laypersons."

Today's ruling reverses the lower court opinion, which held that only licensed professionals were permitted to administer insulin shots.

Additional information is available in our Legal Alert.

The full opinion of American Nurses Association v. Torlakson is available here.

For more information, please contact Meghan Covert Russell or the KMTG attorney you normally consult.

Court of Appeal Reverses Award of Attorneys' Fees to School District Where Publisher's PRA Request Was Meritless But Not Frivolous

School districts and other public agencies are frequently the recipients of Public Records Act requests.  These requests are time consuming and subject to litigation if not properly complied with.   Cases brought to seek compliance with the PRA are frequently litigated and continue to refine the contours of the PRA statues.  A recent case discusses the award of costs and fees when a case that is brought does not compel the public agency to disclose any additional documents.

Recently, a superior court ordered a newspaper publisher to pay the attorney fees of a school district because it determined the publisher’s Public Records Act petition was frivolous.  However, on appeal, the court of appeal held that although the publisher’s petition lacked merit, it was not frivolous and therefore the publisher was not required to pay attorney fees.  (Crews v. Willows Unified School District (--- Cal.Rptr.3d ----, 217 Cal.App.4th 1368, Cal.App. 3 Dist., July 17, 2013).  Although the District complied with the PRA request, it was still subject to a lawsuit and even when the publisher did not prevail, was unable to recoup its costs of litigating the matter. 

Districts should carefully comply with PRA requests for the dual purposes of (1) providing access to public records as required by statute and in the public interest of furthering open access to government and (2) avoiding potentially costly litigation.

For more information, please see our Legal Alert and contact Meghan Covert Russell or the KMTG attorney you normally consult with.

Update -- State Supreme Court Denies Review of Bond Expenditure Case

We  reported back in April that the Court of Appeals restricted the use of bond expenditures in the case Taxpayers for Accountable School Bond Spending v. San Diego Unified School Dist. (---Cal.Rptr.3d---, Cal.App. 4 Dist., April 25, 2013).  The California Supreme Court has denied the petition for review and the case remains "good" law.  However, a request for depublication of the lower court ruling is still pending. 

Meghan Covert Russell

World Breastfeeding Week -- Make Sure You Comply With Legal Requirements For Providing Employees With Reasonable Accommodations

August 1-7 marks World Breastfeeding Week.  It is well established that breastfeeding is beneficial for both mom and baby.  As an employer, ensure you are providing breastfeeding mothers with appropriate resources.

Both state and federal law provide protection to pregnant and nursing mothers.  Specifically, California Labor Code 1030 requires employers, including the state and political subdivisions of the state, to provide a reasonable amount of break time to accommodate breastfeeding mothers (this can run concurrently with other break time and additional break time can be unpaid).  However, employers are not required to provide breaks if it would "seriously disrupt" the operations of employers.

Additionally, Labor Code 1031 requires employers to make a reasonable effort to provide breastfeeding mothers with the use of a room/location to express milk in private, except a bathroom stall, in close proximity to the employee's work area.

Employers should encourage their employees to notify them in advance in order to address scheduling and make arrangements for the accommodations. 

It is important for employers to understand their legal requirements to provide accommodation for breastfeeding employees.  Employers who fail to provide reasonable accommodations may be subject to investigation and prosecution of complaints by the Department of Fair Employment and Housing for gender discrimination, a citation from the Labor Commissioner for violation of the Labor Code, and/or civil penalty. 

The California Department of Public Health's website also has more information on breastfeeding for both employers and employees. 

Meghan Covert Russell