KMTG EDUCATION BLOG

Legislature Restores Home-To-School Transportation Funding

2012-02-03T10:39:00.000-08:00

On Thursday, February 2, 2012, the California Legislatureapproved SB 81, which restores $248 million for home-to-school transportationfunding. The bill will now be sent toGovernor Brown for his signature.

The budget cut will no longer be targeted at transportation,which opponents argued had a disparate impact on rural and urban students whorely heavily on busing students. Instead, the cut will be a general-purpose reduction that affects allschool districts evenly. Whereas somerural districts were poised to lose more than $1,000 per student due to thetransportation cut, now all districts will lose about $42 per student under SB81. Although SB 81 does not eliminatethe budget cuts to education, it more equitable spreads the cuts across allschool districts.

The full text of the bill can be accessed here.

Meghan Covert Russell

Federal Appeals Court Rules Weeknight Scheduling of Girls Basketball Games May Violate Title IX

2012-02-02T11:13:00.000-08:00

The U.S. Court of Appeals for the Seventh Circuit recentlyruled in Parker v. Franklin County SchoolCorporation (7^th Cir. Jan 31, 2012), that two female basketball players have presented sufficientevidence to proceed to trial on their Title IX claim of denial of equalathletic opportunity based on the disparate scheduling of girls basketballgames. The suit alleges that several Indiana school districtshave treated boys and girls basketball teams differently when scheduling theirgames. The suit alleges that the boys teamswere given “primetime” games on Friday and Saturday nights, while the girlsgames were often scheduled for weeknights. The suit alleges that these differences resulted in several negativeimplications, including (1) placing female student-athletes at an academicdisadvantage, (2) the girls team receiving less support from school andcommunity-members at games, and (3) the girls feeling inferior or as if theyhad “second class status.”

The Seventh Circuit determined that the scheduling disparitywas systematic in nature. Moreover, theIndiana High School Athletic Association had received notice from the USDepartment of Education’s Office of Civil Rights in 1997 that the difference inscheduling “could be found by OCR to be out of compliance with thescheduling of games and practice times component of theathletic provisions of Title IX if they reserve Friday nightsfor boys basketball games and schedule girls basketball games onother nights.”

Districts may want to review how their schools scheduleboys and girls games to ensure equal athletic opportunity in light of thisrecent court decision.

For more information, see the National School BoardsAssociation’s coverage on their blog.

Meghan Covert Russell

US Department of Education Seeks Your Input on Testing Integrity

2012-01-30T13:55:00.000-08:00

In response to recent, highly publicized reports ofmisconduct by school officials in administering academic tests, the USDepartment of Education (“DOE”) is seeking input about best practicesto facilitate further discussions and to help local and state educationalagencies prevent, detect, and respond to irregularities in academictesting.

Some of the questions posed by the DOE include:

(1) Detection: How aretesting irregularities generally detected? What are the different types ofanalyses that can be used to detect testing irregularities?

(2) Investigation: Iftesting irregularities are detected, what are the best practices forinvestigating them? What forensic analyses should be used? If allegedtesting irregularities are a result of wrongdoing, under what circumstances isit appropriate to impose strict and meaningful sanctions against wrongdoers?

(3) Online and Computer-BasedAssessments: In a world where academic assessments are increasinglydelivered online and by computer, how do responses to the questions listedabove change when applied to online and computer-based assessments?

Written submissions must be received by the DOE by February16, 2012. For more information,including the full set of questions posed by the DOE and how to submit yourcomments, see the DOE’s Request for Information here.

Meghan Covert Russell

Teach Talk with US Department of Education: January 27, 2012

2012-01-26T08:26:00.000-08:00

On Friday, January 27 at 4:45pm PST, the US Department of Education (DOE) will host a Twitter discussion regarding how to reshape the culture of American education to better attract, retain and support highly effective teachers. The Twitter discussion will be held in conjunction with a live discussion and will follow a screening of the documentary, “American Teacher,” which chronicles the stories of four teachers.

To participate in the Twitter discussion, log onto Twitter and use the hashtag #TeachTalk.

For more information, visit the DOE’s blog here.

Meghan Covert Russell

January 25, 2012: National Gay-Straight Alliance Day

2012-01-25T16:25:00.000-08:00

Today marks the first ever Gay-Straight Alliance Day, as noted on the White House and Department of Education’s (“DOE”) blogs. In recognition of this day, Secretary of Education Arne Duncan has recorded a video message to students, teachers and allies affirming the President’s commitment to safe schools for all students.

Both the federal government and California continue to emphasize the need to combat discrimination, harassment, intimidation and bullying at our schools. In June 2011, the DOE issued a Dear Colleague Letter addressing the problem of harassment and bullying of lesbian, gay, bisexual, and transgender (“LGBT”) students and encouraging gay-straight alliances at schools. California recently required school districts to expand their anti-harassment policies to include anti bullying. Under AB 9, these policies must prohibit discrimination, harassment, intimidation and bullying based on the actual or perceived characteristics set forth in Education Code section 220, which include disability, gender, nationality, race or ethnicity, religion, and sexual orientation.

Below is a transcript of Secretary Duncan’s video message:

On the first-ever National Gay-Straight Alliance Day, I want to say thank you to all of the student leaders and faculty advisors who are doing the courageous work of making campuses safe places that are free of bullying and harassment.

Harassment and bullying are serious problems at schools and colleges, especially for lesbian, gay, bisexual, and transgender students. We have to dispel the myth that bullying is just a normal rite of passage, or an inevitable part of growing up.

President Obama and I believe that we have a collective obligation to ensure that all our schools are safe for all children. Every single student deserves the opportunity to learn and grow and achieve their potential, without having to worry about the threat of harassment.

When students are harassed or bullied, it directly affects their work in the classroom, their aspirations for the future, and their desire to stay in school.

Gay-Straight Alliances and similar student groups play an important role in creating welcoming, affirming, and respectful schools and colleges – safe places where learning can happen and students flourish.

This work is absolutely essential.

GSAs are a proven tool for creating welcoming school climates and helping students stay in school.

Our team at the Department of Education is committed to giving school districts guidance on providing all students, including LGBT, gender nonconforming students, and their allies, a safe place to learn, meet, share experiences, and discuss matters that are important to them. These are goals that our Administration takes very seriously.

This day is an opportunity to recognize the importance of Gay-Straight Alliances in schools across America. On behalf of President Obama, I want to thank you for your hard work, your leadership, and your courage. Your work makes a difference – so keep it up.

Meghan Covert Russell

Supreme Court Declines to Hear Cases on Student Speech

2012-01-23T13:44:00.000-08:00

The US Supreme Court recently declined to hear three court of appeals cases dealing with the scope of school administrators' authority to discipline students for off-campus online speech. The Third Circuit's two rulings that students could not be disciplined for off-campus online postings that ridiculed the principals (Blue Mountain School District v. Snyder and Layshock v. Hermitage School District), and the Fourth Circuit's ruling that a student could be disciplined for her off-campus online postings that constituted harassment and bullying of a fellow student (Kowalski v. Berkeley County Schools) will stand.

The standard by the US Supreme Court remains unclear for disciplining students for off-campus internet speech. However, these circuit cases can be grouped into two apparent categories: (1) speech parodying school administrators and (2) speech targeting a fellow student. Although neither the Third or Fourth Circuit are binding on California courts, it appears that courts are more willing to uphold discipline of students where it constitutes bullying or harassment of a fellow student, and less willing to uphold discipline where it targets a school administrator.

For more information, please refer to our Legal Alert

Meghan Covert Russell

Heads Up! Revise Your District’s Anti-Harassment Policies to Include Anti-Bullying By July 2012

2012-01-19T11:00:00.000-08:00

AB 9, which amends and adds to Education Code section 234 et seq., requires school district policies to prohibit discrimination, harassment, intimidation and bullying based on the actual or perceived characteristics set forth in Education Code section 220 (including disability, gender, nationality, race or ethnicity, religion, and sexual orientation). Existing law requires district policies to address discrimination and harassment – as of July 1, 2012, these policies also have to explicitly address intimidation and bullying based on perceived characteristics. The policies must also include a statement that they apply to all acts related to school activity or school attendance occurring within a school under the jurisdiction of the superintendent of the school district.

AB 9 also sets forth a more detailed process for dealing with complaints of discrimination, harassment, intimidation or bullying based on perceived protected characteristics. The complaint process must include, but is not limited to:

1. A requirement that school personnel must take immediate steps to intervene, when safe, if they witness an act of discrimination, harassment, intimidation or bullying.

2. A timeline to investigate and resolve complaints.

3. An appeal process.

4. Forms developed pursuant to this process must be translated.

These policies must be publicized to students, parents, employees, agents of the governing board, and to the general public.

Districts should examine their existing anti-harassment policies and make sure they comply with the new requirements of AB 9 before July 1, 2012.

The chaptered bill can be accessed here.

Meghan Covert Russell

Join KMTG Attorneys at ACSA Every Child Counts Symposium!

2012-01-11T08:32:00.000-08:00

Today, January 11, begins the 2012 Association of California School Administrators (ACSA) Every Child Counts Symposium at the Portola Hotel and Spa in Monterey. This annual event is hosted by ACSA’s Student Services and Special Education Council. This year several KMTG attorneys were selected as speakers and panel participants, including Diane Beall on the hot-topics Legal Issues Panel, and Marsha Bedwell and Meghan Covert Russell presenting “Harassment and Bullying: From the School Yard to the Court.” If you are attending the ACSA symposium you won't want to miss these insightful presentations by members of the KMTG Special Education group. We hope to see you there!

Meghan Covert Russell

Students “Like” Social Media

2012-01-05T10:32:00.000-08:00

This infographic was created by the ASCD (formerly the Association for Supervision and Curriculum Development) for its report, “Can Social Medial and School Policies be “Friends”?”

The graphic highlights the number of students who currently use social media and the desire of many of those students to utilize technology at school, such as electronic textbooks and the ability to communicate with teachers. However, the graphic also demonstrates the challenges posed by use of technology and social media at schools, from cyberbullying to cheating. Additional challenges arise when schools discipline students for online speech that takes place off-campus (see additional coverage of this topic, click here).

Districts will continue to struggle with the desire to effectively utilize technology in the classroom while keeping distractions out.

For a PDF of the inforgraphic below, please click on the image.

Meghan Covert Russell

Easy Ways to Green Your School

2011-12-21T10:21:00.000-08:00

Andrea Falken, Director of the Green Ribbon Schools program, provides her thoughts on greening schools on the US Department of Education’s Blog. Some ideas include planting a community garden, encouraging students to bring reusable lunchware, and starting a recycling program.

What has your school done to go green?

Meghan Covert Russell

School-Friendly YouTube Channel

2011-12-13T14:06:00.000-08:00

YouTube has launched a new network – YouTube for Schools – that allows educators to grant students access to educational content from YouTube EDU while excluding other content. YouTube EDU includes content from the Smithsonian, TED, Steve Spangler Science, MIT and Numberphile, among many others.

Meghan Covert Russell

Become a California Green Ribbon School

2011-12-06T10:53:00.001-08:00

California is one of 33 states and the District of Columbia which plan to nominate schools for the US Department of Education’s Green Ribbon Schools award program. The program asks states to nominate schools that come closest to achieving the goals the Green Ribbon program has established: net zero environmental impact of facilities, net positive health impact on students and staff, and 100% environmentally literate graduates.

“We are excited about the potential impact the Green Ribbon Schools awards program can have in encouraging schools to improve their energy efficiency, create healthy environments for students and staff, and enhance their work to effectively prepare graduates for 21st century careers,” said U.S. Secretary of Education Arne Duncan.

States must submit nominations to the US Department of Education by May 22, 2012 and winners will be announced in April.

For more information on the Green Ribbon Schools program please visit the US Department of Education’s website.

Meghan Covert Russell

California School Boards Association & KMTG Update

2011-11-30T15:38:00.000-08:00

Tomorrow, Dec. 1, is the kick-off of the 2011 Annual Education Conference of the California School Boards Association (CSBA). Kronick Moskovitz 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 Diego and we're pleased to report that several KMTG attorneys were selected as speakers and panel participants. KMTG attorney Michelle Cannon is partnering with another speaker to conduct a workshop on the Brown Act, a comprehensive overview of everything you need to know about California's open meeting law. Roman Munoz, another KMTG attorney, is speaking on the panel entitled "Surviving Tough Negotiations As A Board" which will focus on the fact-finding process from the board perspective. And taking place in conjunction with the CSBA annual meeting is the California Council of School Attorneys and the County Counsel’s Association Joint Annual Workshop. There, KMTG attorney Diana Halpenny is presenting "Legal Issues and Updates Associated with Teacher Evaluations." If you are attending the CSBA meeting, you won't want to miss these insightful presentations by members of the KMTG Education group. If you can't make it in person, you can listen to live streaming of the General Sessions via the CSBA website. You can also follow CSBA tweets from the event on Twitter @csbaaec and can submit questions before the State of the State address by using the hash tag #csbaaec. We hope to see you there!

FCC Explores Broadband Deployment Issues

2011-11-21T08:43:00.000-08:00

The Broadband Acceleration Initiative was announced in February with its goal to identify and reduce regulatory and other barriers to broadband deployment. The Federal Communications Commission (“FCC”) issued a Notice of Inquiry in April regarding the “Acceleration of Broadband Deployment: Expanding the Reach of Reducing the Cost of Broadband Deployment by Improving Policies Regarding Public Rights of Way and Wireless Facilities Siting WC Docket No. 11-59.”

The Notice states that increasing broadband deployment is one of the great infrastructure challenges of our time. It also notes that Congress has directed the FCC and each State commission to “encourage the deployment on a reasonable and timely basis of [broadband] to all Americans” by working to “remove barriers to infrastructure investment” in a manner consistent with the public interest, convenience, and necessity.

The policies regarding the management of rights of way and siting wireless facilities, including procedures and costs, affect how long it takes and how much it costs to deploy broadband. Last year the National Broadband Plan concluded that the rates, terms, and conditions for access to rights of way significantly impact broadband deployment. School districts and other public agencies sometimes house these wireless broadband facilities on their property and therefore any changes by the FCC to rates that can be charged for siting these facilities may have an impact on these public agencies.

The FCC seeks to address the following issues which may be of interest to school districts:

· Reasonableness of charges

· Presence/absence of uniformity due to inconsistent or varying practices and rates in different jurisdictions or areas

· Other rights of way concerns

The FCC initiative may have the potential to effect how and at what cost school districts can house these facilities. Some public agencies, including school districts, have responded to the FCC’s Notice of Inquiry with their own comments and concerns over their ability to charge reasonable rent for these broadband facilities.

How does your district feel about potential FCC regulation of broadband contracts?

Meghan Covert Russell

ACLU Resumes Student Fees Lawsuit

2011-11-18T09:35:00.000-08:00

The American Civil Liberties Union (“ACLU”) has resumed its lawsuit against the State after Governor Brown vetoed AB 165. The suit alleges that the State failed to enforce the constitutional ban on student fees. The suit had been placed on hold while AB 165, which would have codified the ban on charging fees and implemented strict enforcement mechanisms, was pending. With the Governor’s October 8 veto of the bill, the ACLU has refocused its efforts on resolving this issue in court.

Meghan Covert Russell

Suit Filed Against LAUSD Seeks to Enforce Requirements of the Stull Act for Teacher Evaluations

2011-11-17T15:27:00.000-08:00

Parents of children in the Los Angeles Unified School District (“LAUSD” or “District”), backed by the advocacy group EdVoice, filed suit in the Los Angeles Superior Court on October 31, 2011 seeking to compel the District to abide by Education Code section 44660 et seq., commonly known as the Stull Act.

The Stull Act was enacted in 1971 and requires teachers to be evaluated relative to students’ progress towards locally determined standards. In 1999 the Stull Act was expanded to require evaluation of teachers relative to students’ progress towards state adopted academic content standards as measured by state assessments.

The suit alleges that the District never obeyed the Stull Act’s mandate; it alleges that certificated employee unions, “in collusion with the District’s governing boards and superintendents . . . made it impossible for the District to lawfully evaluate certificated personnel and indentify and require specific corrective action to retain, transfer, suspend, or dismiss unsatisfactory personnel based, in part, on evidence which demonstrates whether or not students are learning.” The suit further states that “the adults’ collective employment and political interests are turning the childrens’ opportunity to learn and their fundamental right to basic educational equality in the public schools on its head.”

Hearing on the suit is scheduled for November 21.

The complaint can be accessed here.

Meghan Covert Russell

School Districts and Community College Districts May Oversee the Liquidation of Redevelopment Agencies

2011-11-15T09:55:00.000-08:00

California school districts and community college districts may soon be taking on a new responsibility – overseeing the liquidation of redevelopment agencies within their boundaries.

This new responsibility is the result of legislation adopted June which would eliminate all of the state’s redevelopment agencies (AB 1X 26), and a second bill which would allow redevelopment agencies to remain in existence if their host cities and counties make a “voluntary” payment for the benefit of the state (AB 1X 27). After the redevelopment agencies are eliminated, their share of property taxes would flow to other local agencies, including school districts and community college districts.

The legislation sets up a seven member oversight board which would supervise the dismantling of the redevelopment agencies. Representatives of school districts and community college districts would each have a seat on the oversight board.

Before the elimination of the redevelopment agencies took effect, however, a lawsuit was filed by the California Redevelopment Association to halt the new laws. The California Supreme Court accepted the case and issued a stay of the effectiveness of the new laws.

The Supreme Court held oral arguments on the case on November 10, and it appeared from the justices’ questions that they were prepared to uphold the bill that would eliminate the redevelopment agencies. It was less clear whether the justices would also uphold the companion legislation that would allow redevelopment agencies to make the voluntary payments and be reinstated. The Court’s decision is expected by January 15, and could be issued before the end of the year.

If the decision results in some or all redevelopment agencies going out of business, the oversight boards will need to quickly be formed and begin their supervision of the liquidation process. The oversight boards will direct redevelopment agencies to dispose of all of their assets and properties, and to terminate unnecessary contracts. Existing bonds and long-term contracts will remain in place, however. The oversight board will have the power to approve all major decisions by redevelopment agencies, such as bond restructuring, property sales, and the establishment of the list of contracts that will continue to be honored.

When the Supreme Court hands down its decision we will publish a further legal alert, which will analyze the effect of the ruling on school districts and community college districts.

Jon Goetz

Facilities Offered to the Charter School Were Not Reasonably Equivalent Where District Failed to Consider Non-Classroom Space

2011-11-15T09:46:00.000-08:00

The California Court of Appeal has held that a school district failed to comply with the requirements of Proposition 39 because the facilities it offered a charter school were not reasonably equivalent to the facilities that the district would have provided to the charter school students if they had attended a public school within the district. (Bullis Charter School v. Los Altos School District (--- Cal.Rptr.3d ----, Cal.App. 6 Dist., October 27, 2011).) For more information, please see our Legal Alert.

Meghan Covert Russell

Think before you post!

2011-11-11T08:50:00.000-08:00

A New Jersey elementary school teacher was discharged from her tenured position after referring to her first grade students as “future criminals” in a Facebook post.

The administrative law judge determined that the district’s need to operate efficiently outweighed the teacher’s free speech rights. The judge also said, “In a public education setting, thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”

For more information see the NSBA coverage here: http://legalclips.nsba.org/?p=10160

Meghan Covert Russell

AB 501 Expands Exclusive Representation Rights to “All Public School Employees”

2011-11-10T11:29:00.000-08:00

AB 501 expands the definition of “employer” and “employee” under the Educational Employment Relations Act. A public school employer now includes joint powers agencies and auxiliary organizations established by the California Community Colleges. All public school employees, except those elected or appointed, and management and confidential employees, now have the right to exclusive representation. Non-classified employees, such as yard duty supervisors, who traditionally did not have representation rights, now have those rights under AB 501. For more information, please see our Legal Alert.

Meghan Covert Russell

SB 293 Imposes Retention Cap on Public Projects

2011-11-08T14:11:00.000-08:00

The Legislature recently passed and Governor Brown approved Senate Bill No. 293 (“SB 293”), which brings changes to the Business and Professions Code, Civil Code, and Public Contract Code. Most significantly, SB 293 reduces maximum retention amounts that can be withheld on public works projects (view KMTG's full Legal Alert).

Meghan Covert Russell

UPDATE: Missouri Governor Repeals Portion of Law Prohibiting Private Interactions Between Teachers and Students on the Internet

2011-10-31T10:03:00.000-07:00

Missouri Governor Jay Nixon signed a bill that repeals part of the Amy Hestir Student Protect Act, which prohibited private internet interactions between teachers and students. As you will recall, the law was determined to likely be unconstitutional and a judge issued an injunction temporarily preventing the law from taking effect. See 8/31 blog post, "UPDATE: Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet, But State Court Finds the Law Likely Violates Right to Freedom of Speech."

Although schools have an interest in preventing inappropriate contact between teachers and students, the First Amendment Rights of those teachers and students are also an important issue to weigh when making legal and policy decisions whether and how to regulate teacher and student interactions.

For additional background, see 8/9 blog post, "Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet."

Meghan Covert Russell

Attempt to Fix the Open Enrollment Act Vetoed by Governor Brown

2011-10-11T15:40:00.000-07:00

AB 47 would have addressed some flaws in the Open Enrollment Act (aka the Romero Bill) but was vetoed by Governor Brown on October 8, 2011. The Open Enrollment Act was enacted last year in the wake of legislative flurry to enact Race to the Top legislation. The Act requires the Superintendent of Public Instruction to identify a list of 1000 “low-performing” schools ranked by API scores, limits any one district’ schools on the list to 10% and exempts charters and other specified schools from the list.

During its first year of implementation in 2010-11, the list of 1000 schools included a number of high performing schools with API scores of 800 and above as well as a number of special education programs. In 2010, at least 96 of these schools requested and received a waiver from the Act’s provisions. An additional 103 low performing charter schools were excluded from the list.

AB 47 would have required a list of up to 1000 schools rather than a total of 1000 schools. It also would have excluded any school with an API over 700 or that had growth of 50 points or more from the list; and would have included charter schools but excluded special education programs.

While the bill had considerable education community support, passage of the bill was based on a clear party line vote. Perhaps the Legislature will try again next year and Governor Brown will change his mind, allowing the flaws to be fixed while maintaining the original intent of the Open Enrollment Act.

Sally Jensen Dutcher

Governor Vetoes AB 165-Student Fees Bill

2011-10-10T14:18:00.000-07:00

AB 165 codified the state constitutional right to a free public education by prohibiting school districts from charging fees for classes and extracurricular activities. It also included new onerous enforcement mechanisms for districts and complaint procedures for parents.

In his veto message on October 8, Governor Brown said district compliance with this right is essential and districts should be held accountable, but this bill took the wrong approach. He stated that “the bill would mandate that every single classroom in California would mandate that every single classroom in California post a detailed notice and all 1042 school districts and 1200 charter schools follow specific complaint, hearing and audit procedures, even where there have been no complaints, let alone evidence of any violation. This goes too far.”

It appears the veto will require the parties to the ACLU lawsuit to go back to court or participate in further settlement discussions. In the meantime, districts should continue to review their student fees practices to ensure compliance but they can enjoy a reprieve from the onerous enforcement mechanisms in AB 165. For additional analysis and discussion please see our Legal Alert.

Sally Jensen Dutcher

2011-09-29T12:21:00.000-07:00

The California School Boards Association (CSBA), the Association of California School Administrators (ACSA), the Los Angeles Unified School District, the San Francisco Unified School District and other school officials announced yesterday that they have filed a lawsuit in San Francisco Superior Court against the State over an alleged $2.1 billion education funding deficit. The suit seeks a recalculation of the Proposition 98 formula that determines how much funding schools receive annually.

Notably, the California Teachers Association (CTA) is not part of this lawsuit. Last summer, the Governor and state lawmakers struck a last-minute budget deal, with the blessing of CTA, which included provisions restricting further teacher layoffs and a retroactive payment promise if California voters do not approve a tax increases next year.

In similar news, The Arc of California and the United Cerebral Palsy Association of San Diego, both advocacy groups for the disabled, also filed suit against the State over budget cuts that have affected services provided to developmentally or physically disabled persons.

For more information on these two suits, see coverage here.

Meghan Covert Russell

Schools Planning to Sue State over Education Funding

2011-09-28T09:19:00.000-07:00

The California School Boards Association (CSBA), the Association of California School Administrators (ACSA) and school districts will hold a press conference this morning to explain their case for suing the state over the $2.1 billion in education funding that they believe should have been provided in the budget pursuant to estimates under Proposition 98.

KMTG will follow the news and keep you posted.

Meghan Covert Russell

President Unveils Plan to Provide NCLB Waivers

2011-09-27T09:43:00.000-07:00

Last week the President unveiled a plan to provide states with flexibility from the requirements of No Child Left Behind (NCLB), also known as the Elementary and Secondary Education Act (ESEA). The waiver discards the 2014 proficiency deadline originally set forth under NCLB. In order to qualify for a waiver states must demonstrate that they have a plan to address the following three areas:

Transitioning to college and career-ready standards and assessments;
Developing systems of differentiated recognition, accountability and support; and
Evaluating and supporting teacher and principal effectiveness.

The waiver would be in effect through 2014, in an attempt to allow states time while Congress attempts to complete an ESEA-reauthorization bill.

More information is available on the Department of Education’s Blog.

Meghan Covert Russell

US Department of Education Releases Final Regulations for Part C of the IDEA

2011-09-19T11:10:00.000-07:00

The US Department of Education has finalized regulations that pertain to the Early Intervention Program under Part C of the Individuals with Disabilities Education Act (IDEA), which was amended in 2004. Part C is a $436 million program administered by the states that serves infants and toddlers up to age two who are diagnosed with physical or mental disabilities that may result in developmental delays.

As educators know, early identification and treatment of children with disabilities is essential for their later success. These regulations provide over 900 pages of guidance for individuals who work with children under Part C of the IDEA.

For more information please visit the US Department of Education’s website.

The final regulations are available online and will be published in the Federal Registrar: http://www2.ed.gov/policy/speced/reg/idea/part-c/idea-part-c-final-regs.pdf

Meghan Russell Covert

Florida Teachers’ Union Challenges Merit-based Pay Law

2011-09-16T11:08:00.000-07:00

Earlier this year Florida passed a law that would eliminate tenure for newly hired teachers beginning this year and that requires school districts to implement a merit-based compensation system, linking teacher compensation to student achievement, by 2014. The Florida Education Association (“FEA”) filed suit this week alleging that the law unconstitutionally alters how teachers are paid and evaluated and denies teachers right to collective bargaining.

Although not the only state to tackle issues of tenure and teacher evaluations, Florida is thus far the only state to require a merit-based pay system statewide.

Meghan Covert Russell

Student Fees Bill Sent to Governor for Signature

2011-09-09T10:24:00.000-07:00

AB 165 has passed through the Legislature and sent to the Governor for signature. This bill was introduced as part of the ACLU Student Fees lawsuit tentative settlement agreement. See January 11, 2011 Legal Alert.

The ACLU lawsuit was filed in September 2010 against the State of California and Governor Schwarzenegger alleging public school districts were charging impermissible fees to students in violation of the California Constitution’s free school guarantee. The lawsuit was tentatively settled in December 2010 but that settlement required both parties to engage in good faith efforts to enact legislation and regulations that adopt the proposals outlined in the settlement.

AB 165 includes provisions that are substantially similar to the settlement proposals and include new enforcement mechanisms for districts and complaint procedures for parent. If signed, the provisions will become effective January 1, 2012. Districts should be reviewing their student fees now to ensure only permissible fees are charged. Watch for an updated Legal Alert.

Sally Jensen Dutcher

One Quarter of Teens are Bullied

2011-09-06T10:59:00.000-07:00

A recent report by the National Center for Education Statistics indicates that approximately 25% of high school students were victims of bullying during the 2008-2009 school year. The report also notes that 7% of students were victims of cyberbullying, and about 15% of those students who were cyberbullied later got into a physical fight as a result of the bullying.

Bullying remains a growing problem for teachers and school administrators, who are forced not only to deal with traditional bullying on the playground or in school hallways, but also with the changing face of the bully through technology such as social media and text messaging.

For more information, see the recent US News and World Reports article here.

Meghan Covert Russell

Comprehensive Anti-Bullying Legislation in New Jersey

2011-09-01T17:33:00.000-07:00

New Jersey’s comprehensive Anti-Bullying Bill of Rights goes into effect today. It is one of the toughest anti-bullying laws in the nation, requiring students to spend six class periods learning about bullying. The law also requires action on the part of individual schools, including adopting comprehensive anti-bullying policies, increasing staff training and designating an anti-bullying specialist at each site. However, school administrators note that they have been given no additional resources to meet these requirements.

Although California has yet to enact such comprehensive legislation, the beginning of the school year is a good time for school administrators to review their own district’s anti-bullying policies, provide teachers with training on responding to incidents of bullying and educate student on the dangers of bullying.

For recent coverage on New Jersey's Anti-Bullying Bill of Rights, see the New York Times article here.

Meghan Covert Russell

UPDATE: Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet, But State Court Finds the Law Likely Violates Right to Freedom of Speech

2011-08-31T10:02:00.000-07:00

Missouri’s recently enacted “Amy Hestir Student Protection Act” was quickly followed by litigation brought by the Missouri State Teachers Association seeking to prevent the part of the law from going into effect which prohibits teachers from having a “nonwork-related website that allows exclusive access with a current or former student.” The court issued the injunction, finding that educators use social networking extensively and that the “statute would have a chilling effect on speech.” Moreover, the court noted that this law would even prohibit communication between teachers and their own children via a social networking website.

Meghan Covert Russell

Missouri Law Prohibits Private Interactions Between Teachers and Students on the Internet

2011-08-09T18:04:00.000-07:00

Missouri recently passed the “Amy Hestir Student Protection Act” (the “Act”), which targets sexual misconduct between teachers and students. Among the Act’s many provisions, including imposing liability on a school district who fails to disclose a former employee’s allegations of sexual misconduct to the new employing school district, the Act seeks to curtail online interaction between students and teachers.

The Act specifically prohibits teachers from having a “nonwork-related website that allows exclusive access with a current or former student,” thus prohibiting private interaction on social networking sites such as Facebook (through private messaging and chatting) and Twitter (through direct messaging). However, the Act does not appear to prohibit social networking such as posting on Facebook walls or public group pages, provided the interaction is publicly accessible.

This law is an attempt to address a growing problem of inappropriate contact between students and teachers utilizing technology such as text messaging, emails or social networking. However, commentators have already begun to question the validity of the Missouri law and whether it will withstand review by a court due to constitutional concerns such as free speech and freedom of association.

Although school districts should discourage student and teacher interaction online, California’s free speech laws have not been interpreted in a way that would suggest school districts could prohibit appropriate interaction between students and teachers utilizing technology and social media.

Meghan Covert Russell

Fourth Circuit Upholds Discipline of Student for Online Bullying

2011-08-03T11:29:00.000-07:00

Recently, the U.S. Court of Appeals for the Fourth Circuit upheld the discipline of a student for creating a MySpace page targeting a fellow classmate with sexual, vulgar and offensive posts in Kowalski v. Berkeley County Schools. Kara Kowalski ("Kara") was a senior at Musselman High School ("MHS") when she created a MySpace post called "S.A.S.H." which Kara claimed stood for "Students Against Sluts Herpes" and which ridiculed one fellow MHS student in particular. After finding out about the website, MHS officials suspended Kara. Kara claimed that the school district violated her First Amendment right to freedom of speech because the speech did not occur on campus or during a school-related activity, but was strictly private out of school speech.

The Fourth Circuit rejected Kara's claim, finding that she "used the Internet to orchestrate a targeted attack on a classmate, and did so in a manner that was sufficiently connected to the school environment as to implicate the School District's recognized authority to discipline speech which 'materially and substantially interefer[es] with the requirements of appropriate discipline in the operation of the school and collid[es] with the right of others.'" In its decision, the court addressed the realities of the far-reaching impact of the internet saying that her online posts "could reasonably be expected to reach the school or impact the school environment" even though the website was created off-campus.

This is the most recent case regarding student off-campus internet speech, and follows recent decisions by the Second and Third District: Doninger v. Neihoff (2d Cir. 2011)(discipline upheld for student who used vulgar speech to criticize school administration on her personal blog), J.S. v Blue Mountain Sch. Dist. (3d Cir. 2011)(school district violated student's free speech for disciplining student who created parody website of principal), and Layshock v. Hermitage Sch. Dist. (3d Cir. 2011)(same ruling on similar facts). A circuit split has emerged, creating the possibility that the U.S. Supreme Court may weigh in on this line of cases in the future.

Meghan Covert Russell

School Districts Receive 30-day Extension to Verify Students’ Pertussis Booster Shot

2011-07-26T17:11:00.000-07:00

Last year, California lawmakers passed AB 354, which requires all students entering grades seven through twelve to show proof that they received a pertussis booster shot by the first day of school. On July 25, 2011, Governor Brown signed SB 614 (Kehoe), which gives school districts an additional 30 days to verify that students have received the pertussis (whooping cough) booster shot.

SB 614 allows students extra time to get their pertussis booster shot, without losing valuable classroom time. It also ensures that school districts are not penalized financially for students who do not comply with the requirement within the first 30 days of the school year, since schools lose funding for every day a student does not attend class.

Meghan Covert Russell

Cyberbullying Law to Include Social Media

2011-07-12T09:42:00.000-07:00

On July 8, 2011, Governor Jerry Brown signed into law AB 746 (Campos), which specifically expands current California law regarding bullying to include cyberbullying on social media websites.

Existing law defines bullying as one or more acts of sexual harassment, hate violence, or intentional harassment, threats or intimidation, directed against school district personnel or students, committed by a student or group of students. Current law also provides that bullying, including bullying committed by means of an electronic act, is grounds for suspension or expulsion.

AB 746 specifically defines "electronic act" to include a post on a social network Internet Web site. Clearly, posts on social media websites, such as Facebook and Twitter, are now contained in the definition of bullying under California law.

This clarification to existing law emphasizes the importance of providing a safe learning environment for all students. It is important for school districts to review their policies to ensure that their definition of bullying reflects the most recent changes to the law.

A link to the chaptered bill can be found at: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_0701-0750/ab_746_bill_20110708_chaptered.pdf

Meghan Covert Russell

Camreta v. Greene

2011-06-02T10:41:00.000-07:00

The United States Supreme Court on May 26, 2011, issued its long-awaited ruling in the case of Camreta v. Greene ).(563 U.S. __ (2011).
This case involved an appeal of a Ninth Circuit Court of Appeal decision that was brought by a child protective services officer. The Ninth Circuit decision held that child protective services case workers and law enforcement officials must have a search warrant, parental consent or other exigent circumstances in order to interview a child at school about suspected child abuse. Failure to do so, according to the court, constitutes a violation of the child’s Fourth Amendment rights against unlawful seizure. The Ninth Circuit went on to find, however, that the public officials in the case had qualified immunity from damages, since the law was not well-settled.

On appeal, a divided Supreme Court found that in qualified immunity cases it has the authority to hear an appeal brought by a successful public official, when the lower court has ruled on the underlying constitutional issue and such ruling will have a continuing impact on the manner in which the official performs his duties. However, the Court found that this particular case is moot, since the student on whose behalf the law suit was brought is nearing her 18th birthday and has moved to Florida. Even though the case is moot, which would normally preclude any further consideration, the Court ruled that to leave standing the underlying constitutional determination would deprive the officials of any recourse. Therefore, the Supreme Court vacated the Ninth Circuit’s constitutional analysis regarding the Fourth Amendment obligations in investigations of suspected child abuse. Its ruling does not address the merits of the constitutional analysis, but rather held that it should not be left standing if the officials have no ability to have the issue decided. It is this point on which members of the Court disagreed.

Thus, it remains for another day and another case to find out what requirements, if any, are needed before a child is interviewed at school by child protective services or law enforcement officials regarding child abuse allegations.

Diana D. Halpenny

Doninger v. Niehoff: Second Circuit Allows School District Discipline of Student for Statements Made on Student’s Personal Blog

2011-05-03T09:15:00.000-07:00

The United States Court of Appeals for the Second Circuit recently upheld the discipline of a Connecticut high school student who criticized the school administration on her blog for rescheduling a student battle of the bands called “Jamfest.” Avery Doninger, who was at the time the Junior Class Secretary at Lewis S. Mills High School (“LMHS”), posted from her home computer and on her personal blog that was unaffiliated with the school, that “jamfest is cancelled due to douchebags in central office.” School officials barred Doninger from running for Senior Class Secretary, but she was not otherwise disciplined. Additionally, Doninger and other students were prohibited from wearing a t-shirt which read “Team Avery” on the front and “Support LSM Freedom of Speech” on the back at the school election assembly.

Doninger and her mother brought suit in federal court alleging that the school administrators violated her free-speech rights under the First Amendment by (1) prohibiting her from running for Senior Class Secretary and (2) prohibiting her and her supporters from wearing “Team Avery” t-shirts to the school assembly. The Second Circuit granted school officials qualified immunity on both grounds, finding that Doninger’s First Amendment rights in these contexts were not clearly established.

The court found that “it was objectively reasonable for school officials to conclude that Doninger’s behavior was potentially disruptive of student government functions (such as the organization of Jamfest) and that Doninger was not free to engage in such behavior while serving as a class representative.” Further, it was “not clearly established at the time of these events that Doninger had any First Amendment right not to be prohibited from running for Senior Class Secretary because of offensive off-campus speech, at least when such speech pertained to a school event, invited students to read and respond to it by contacting school administrators, and it was reasonably foreseeable ‘that the speech would come on to campus and thus come to the attention of school authorities.’”

We cannot predict whether the federal and state courts in California would render the same decision but this case demonstrates that courts do recognize the ability of schools to discipline students for conduct and/or speech on the internet.

Link to "Doninger v. Niehoff"

Meghan Covert Russell

KMTG Legal Alert

2011-01-12T16:23:00.000-08:00

Both Nonindustrial and Industrial Factors Must Be Taken Into Account to Determine Whether Teacher's Psychiatric Injury Was Substantially Caused by Good Faith Personnel Actions

KMTG Legal Alert

2010-12-16T10:32:00.000-08:00

Supreme Court Update: California Statute That Exempts Certain California High School Students without Lawful Immigration Status from Paying Nonresident Tuition under Certain Circumstances Is Not Preempted By Federal Law

KMTG Legal Alerts

2010-11-19T17:07:00.000-08:00

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

KMTG Attorneys' Prevail In Long Standing Federal Suit Over The Use Of Waldorf Methods In Public Schools

2010-11-11T17:26:00.000-08:00

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.

KMTG Legal Alert

2010-10-15T11:17:00.000-07:00

LEGISLATIVE UPDATE: New Laws Affecting Schools Districts And Community College Districts

KMTG Legal Alert

2010-10-05T15:45:00.001-07:00

School District That Breached Contract To Provide Facilities To Charter School Liable For Damages, But Charter School Was Not Entitled To Private Attorney General Attorney Fees

KMTG Legal Alert

2010-10-05T15:09:00.000-07:00

Legislative Update: New Laws Affecting School Districts and Community College Districts

Breaking news: Governor Vetoes Bills Aimed at Pension Reform

2010-10-01T11:15:00.000-07:00

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

It's Election Season

2010-09-30T13:52:00.000-07:00

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.

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.

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.

Brown v. Shasta Union High School District: The Band Plays On

2010-09-29T13:20:00.000-07:00

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

KMTG Legal Alert

2010-08-20T12:07:00.000-07:00

Arbitration Clauses in CC&Rs and Purchase Agreement for Condo Project Do Not Compel Homeowners Association To Arbitrate Claims For Construction Defects

Lapsed teaching credential? Now what?

2010-08-19T12:43:00.000-07:00

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

SB 1285

2010-08-19T12:29:00.000-07:00

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

KMTG Legal Alert

2010-08-16T13:55:00.000-07:00

August 16, 2010 | Bulletin No. 946885.3
State Board Of Education Could Not Approve Statewide Charter Without Finding That The Charter School Offers Instructional Services Of Statewide Benefit And That The Benefit Could Not Be Provided Through Individual Charters From Local School Districts

KMTG Legal Alert

2010-08-16T11:09:00.000-07:00

August 16, 2010 | Bulletin No. 946388.2
LEGISLATIVE UPDATE
New Laws Affecting School Districts and Community College Districts

Mandatory Prequalification Process for School Construction!

2010-08-05T09:47:00.000-07:00

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

Teacher Layoffs and School Improvement Efforts – Will the Law Be Reformed?

2010-07-21T16:28:00.000-07:00

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

California Schools Are Going Green!

2010-07-21T16:22:00.000-07:00

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

Implementing the Open Enrollment Act Will Be a Scramble

2010-07-21T15:29:00.000-07:00

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

Without a Warrant: Greene v. Camreta

2010-07-21T11:35:00.000-07:00

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

Can You Hear Me Now?

2010-07-19T15:44:00.000-07:00

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

Finally A Common Sense Ruling Regarding Temporary Classifications Of Teachers!

2010-07-13T16:45:00.000-07:00

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

Unlicensed School Personnel No Longer Permitted to Administer Insulin to Students

2010-06-29T09:24:00.000-07:00

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

Board Members Have Rights Too

2010-06-22T10:39:00.000-07:00

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