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

Two bills are pending in the Senate to reform teacher layoff provisions. Senate Bill 955 by Senator Huff (with coauthors Emmerson and Romero) contains major changes in the areas of tenured teacher dismissals, probationary employee non-reelection timelines, teacher and administrator evaluations and layoffs. It is currently before the Senate Rules Committee, having been passed by the Senate Education Committee. A second bill was introduced by Senator Steinberg (SB 1285) that is in specific response to a case out of Los Angeles USD in which a court ordered the district not to lay teachers off at three specific middle schools. That case held that the disproportionate layoff at those schools deprived the students of their Equal Protection right to an education [see Legal Alert]. This bill is also winding its way through the committee process. For more detailed information about the specifics of the bills, see the Legal Alert and the Legislative Bill Service. As pointed out in the more detailed article, each bill presents pluses and problems for school districts.

Districts often express frustration when they work so hard to implement reforms at low performing schools, such as providing additional training and resources to the staffs, and then see district-wide layoffs decimate those efforts because those staffs tend to be less senior. It’s nearly impossible to put in place changes that will improve student performance if there is no stability in the staff. However, there are ways to protect those staff members in a layoff proceeding and lessen the impact, but districts need to start now to have a plan in place for school reform efforts that is defensible during a layoff hearing. Specific hiring criteria and processes, additional specialized training, selection of staff based on special skills or experiences are all facts that can help support a district’s case for preserving the less senior teachers. Most of all, the districts should be working with their teacher’s union for its support and participation in reform efforts. With or without union cooperation on the reform efforts, districts also need to decide if they are willing to withstand potential political pressure in the spring if the district chooses to lay teachers off in other than strict seniority order.

By Diana D. Halpenny

California Schools Are Going Green!

20% reduction in indoor water usage! 50% reduction in school construction debris! Mandatory recycling centers on campus! As of January 2011, new schools being built within the state will be required to comply with the applicable provisions of California's new Green Building Code - or "CALGreen." CALGreen is a new section within the state's current Building Code and applies to all new residential, commercial, hospital and school buildings. In 2006, the Governor signed Assembly Bill 32 which required the state to reduce its greenhouse gas emissions to 1990 levels by 2020 - and the CALGreen Code is another way for the state to meet AB 32's "green" goals. Check out the current draft of CALGreen and tell us your thoughts!

By Karina Terakura

Implementing the Open Enrollment Act Will Be a Scramble

Implementing the Open Enrollment Act Will Be a Scramble as 1,000 Eligible Schools are Identified- Districts Required to Send Notices by September 15

The State Board of Education has just adopted emergency regulations implementing the Open Enrollment Act of 2010 (SBX5 4) without providing much clarity to an already confusing law. See our Legal Alert for full details of the law and regulations.

The emergency regulations included a Preliminary List of 1,000 identified “low-achieving” schools whose students can opt to open enroll to a higher achieving school, either inside the district or in another district! Districts with schools on the list must notify parents/guardians of this option by the first day of instruction or by September 15 at the latest. And although this transfer option is limited to students attending one of the 1000 identified schools, many other receiving districts and schools will be affected. These districts will need to be sure they consider accepting or rejecting open enrollment applications according to the new law and regulations.

Adding to the confusion, this option is on top of existing choice options including intra-district open enrollment, Program Improvement transfers and inter-district transfers; each with its own set of laws and regulations. In addition, the definition of “low-achieving schools” for the purpose of this open enrollment option is confusingly different from definitions of “low-achieving schools” and “persistently lowest-performing schools” included in the Intervening in the Persistently Lowest-Performing Schools provisions of SBX5 1 conforming California to the federal Race to the Top requirements. More lists were created for these schools for implementing turnaround strategies.

The Open Enrollment emergency regulations will be effective as soon as the Office of Administrative approves them, which could be sometime within the next two weeks. KMTG suggests districts review the preliminary list of 1000 Open Enrollment schools to see if any of its own schools are on the list and prepare for notifying parents. Potential receiving districts should review existing open enrollment and transfer policies for conformance to these new requirements. In the meantime, keep posted here for new developments.

By Sally Jensen Dutcher

Without a Warrant: Greene v. Camreta

In December of 2009, the Court of Appeals for the 9th Circuit ruled that a social worker and police officer violated a student’s and her parents’ 4th Amendment rights by interviewing the student at school without a warrant, probable cause, parental consent, or exigent circumstances. For more detailed information about the case, please see our recent Legal Alert.
This ruling presents particular concerns for Districts and school officials. Can a social worker without a law enforcement official interview a student on campus without providing a warrant, having probable cause, exigent circumstances or parental consent? What are the school official’s specific obligations, if any, under the ruling?
Fortunately, the Court’s holding does not expressly place upon school officials an obligation to ensure the legality of a potential child abuse investigation by law enforcement. However, schools are charged with the protection of their students under the doctrine of in loco parentis. Therefore, schools do have a distinct interest in taking reasonable steps to ensure the rights of their students are not obviously violated. Most likely, a decision about whether or not to allow an interview of a student by a police official, and even a social worker, would be justified if a school official reasonably relied on the investigator’s assurances that the interview was proper and legally sufficient.
In addition, the Court of Appeals relied heavily on the fact that Oregon statutory law places obligations on both law enforcement and social workers to cooperate and participate in investigations of child abuse and neglect. This entanglement, coupled with the presence of the police officer at the interview, implicated the student’s and parents’ 4th Amendment rights. The court did not indicate whether the interview would have been permissible if the social worker had interviewed the student alone. Unlike Oregon law, California law does not directly involve law enforcement agencies in an investigation by Child Protective Services. However, social workers are mandatory reporters under California law, and must report suspicions of child abuse and neglect to the appropriate law enforcement agencies. Furthermore, some California social workers have expressed the opinion that they act in a law enforcement capacity when conducting child abuse investigations. Until a case is brought before the court, school districts should consider treating social workers investigating suspicions of child abuse and neglect the same as other law enforcement officials.
The California School Board Association (“CSBA”) has created a sample policy (BP5145.11), which can be accessed by school administrators through the CSBA website (www.csba.org). This policy takes a conservative approach and recommends schools have law enforcement officials fill out a form verifying their identity and the legitimacy of the interview. However, some attorneys assert that school officials are justified in relying on representations by law enforcement officials that the interview is proper. Districts must decide which approach best suits their needs and the interests of their students. The best protection for Districts is to adopt reasonable policies and ensure school staff know about the policy and consistently follow it.
There have already been indications that this ruling will be appealed to the United States Supreme Court. KMTG will continue to monitor the status of the case and provide updates on any important legal changes.

By Jessica Carriger

Can You Hear Me Now?

Some school districts are taking the opportunity this summer to address cell phone policies. Check out the link to the article below to see how some school districts are addressing cell phone use on campus.

Schools examining cell phone policies to address distractions

By Emily E. LaMoe

Finally A Common Sense Ruling Regarding Temporary Classifications Of Teachers!

KMTG attorneys scored a significant win at the trial court in an important case regarding temporary teacher classifications. In a superior court decision issued on July 7, 2010, the judge agreed with KMTG’s legal position that teachers working in categorical positions may be properly classified as temporary employees under Education Code section 44909. The judge also agreed that it is proper to send temporary employees “precautionary notices” and to allow them to participate in a layoff hearing when their proper classification is disputed. This case was filed by a local teachers union after a layoff decision in favor of the school district where the teachers challenged both the temporary classification of teachers working in categorical programs and the district’s practice of sending “precautionary notices” to temporary employees whose proper classification was in dispute. The union’s attorney argued that teachers working in categorical positions may not be classified as temporary, but rather are entitled to be classified as probationary employees after the Bakersfield Decision.

Stay tuned for more on this as the superior court decision is likely to be appealed to the Third District Court of Appeals.

By Michelle Cannon

Unlicensed School Personnel No Longer Permitted to Administer Insulin to Students

For the last few months, school districts and school attorneys have been anxiously waiting for the ruling of the California Third Appellate Court on whether or not trained school personnel can administer insulin to students with diabetes. The status of the law has been uncertain since 2007 when the California Department of Education (“CDE”) issued a legal advisory listing individuals authorized, in their view, to administer insulin to students. This list included: a “voluntary school employee who is unlicensed but who has been adequately trained to administer insulin pursuant to the student’s treating physician’s orders as required by the Section 504 plan or IEP.” The American Nurses Association and the California counterpart immediately filed suit against the Superintendent of Public Schools and the CDE (collectively, “State”), challenging that portion of the advisory. The nurses associations also launched campaigns against school districts, indicating it was unlawful for them to allow unlicensed personnel to administer the necessary insulin medication. After a hearing on the issue, the Superior Court agreed with the American Nurses Associations, that under current California law, non-licensed personnel could not administer insulin to students with diabetes. Believing such a ruling would be harmful to students and financially difficult for already hurting schools, the State appealed. The school districts, many without licensed school nurses, were left to wonder about the state of the law. In June, the Appellate Court affirmed the Trial Court’s decision.
This crippling ruling comes at a time when schools are faced with cutting budgets, personnel, and necessary educational programs to cope with the current economic crisis, along with a state-wide shortage of school nurses. The State’s position, which would allow properly-trained staff to administer the insulin injections, was supported by the American Diabetes Association, various school districts, school attorneys, students, and parents. Both the Trial Court and the Court of Appeal were careful to note that they were not deciding whether or not California law should permit non-licensed personnel to administer insulin, and even indicated such a law would better serve students; however, it was up to the legislative process to change the law, not the courts. Even the concurring justice reluctantly admitted that he had to concur under the current laws of California, “regardless of whether they were the product of legitimate concern for the safety of diabetic public school students or the result of a labor organization protecting its turf and flexing its political muscle.”
So far, there is no word whether or not the State will appeal to the California Supreme Court. However, with a new school year starting in a few months, school districts must begin to think about how to comply with the current ruling. This ruling does not affect the ability of non-licensed personnel to perform necessary emergency medical assistance.

By Jessica Carriger

American Nurses Association v Jack OConnell, As Superintendent of Public Education

KMTG Education Legal Alert