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California Governor Eliminates Personal Belief Exemption for School Vaccinations

01 Jul 2015 00:00:00 -0800

California Governor Jerry Brown has signed into law Senate Bill 277, eliminating the personal belief exemption for existing specified immunization requirements, including measles, mumps and pertussis, for both public and private school attendance.

SB 277 requires that before a student’s initial admission to a school or childcare facility, he or she be immunized and provide documentation of such immunization for the following diseases: diphtheria, haemophilus influenza type b, measles, mumps, pertussis, poliomyelitis, rubella, tetanus, hepatitis B, varicella and any other disease the state health department deems appropriate. Students who attend a home-based private school or are enrolled in an independent study program and who do not receive classroom-based instruction are not affected. Exemptions from immunization for medical reasons remain in place. SB 277 does not prohibit a pupil who qualifies for an Individualized Education Program under federal law and section 56026 of the Education Code from accessing any special education and related services required by his or her IEP.

The law phases in the elimination of the personal belief exemption by permitting students who submit documentation before January 1, 2016 to a school or childcare facility asserting their opposition to immunizations to wait until they enroll in the next grade span -- defined as 1) birth to preschool; 2) kindergarten and grades 1 to 6, including transitional kindergarten and 3) grades 7 to 12 – to be immunized. This phase-in period ends on July 1, 2016, at which time schools may not unconditionally admit or advance any student to seventh grade without the immunizations required for his or her age.

The impetus for the law came from California’s recent outbreak of measles stemming from unvaccinated individuals infecting others who were vulnerable to the disease, including children unable to get vaccinated because of their age or health condition.

The entire text of the chaptered Bill can be found here.

If you have any questions regarding this legislation or school vaccination requirements, contact the attorney author of this legal alert listed to the right, another attorney in the Education practice group or your BB&K attorney.

Disclaimer: BB&K legal alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Federal Authorities Crack Down on Student Discipline Practices

09 Jan 2014 00:00:00 -0800

U.S. Secretary of Education Arne Duncan and U.S. Attorney General Eric Holder this week issued a joint “Dear Colleague” letter and guidance package for school officials, making the case that student discipline practices across the nation have become a civil rights issue.

Urging change, the letter and guidance package provide direction and resources to assist schools in meeting their obligation to avoid and redress racial discrimination in the administration of student discipline. The letter explains the investigative process under Title IV and Title VI of the Civil Rights Act of 1964, including the legal framework within which the federal agencies consider allegations of racially discriminatory student discipline practices, and provides examples of practices that may violate civil rights laws.

Finally, the letter provides a set of recommendations to assist schools in developing and implementing student discipline policies and practices. Click here to see the “Dear Colleague” letter, and here for the guidance package, which were issued Wednesday.

The guidance notes that many school districts have adopted appropriate and effective student discipline programs to promote a safe school climate. However, research shows that the way those programs are implemented can often have the effect of discriminating against students based on race, disability or other protected personal characteristics.

This concern is heightened by the fact that many school districts rely heavily on suspensions, expulsions and other exclusionary measures that promote what has been called the “school-to-prison pipeline.” Secretary Duncan explained that students who are suspended or expelled are losing large amounts of instructional time, even for non-violent offenses, and are more likely to drop out of school and find themselves in the juvenile justice system. The “Dear Colleague” letter also notes that law enforcement is called in to assist with student discipline matters more often than necessary.

In California, the Education Code already requires that alternative means of correction be used prior to suspension or expulsion, except in the most serious offenses. Over the past decade, many California school districts have drastically reduced suspension and expulsion rates and have shifted toward interventions, counseling and other non-exclusionary consequences for students violating school rules. In this regard, California leads many states in the nation in embracing Secretary Duncan’s message of keeping students in school whenever possible.

In light of the new federal guidelines, school districts should carefully evaluate their own student discipline practices. Some districts may find it appropriate to provide additional training to school administrators to minimize exclusionary and discriminatory student discipline practices that could become a target for federal investigation. California school districts should also be aware of these federal guidelines when conducting their own complaint investigations under the Uniform Complaint Procedure whenever discrimination is alleged in connection with student discipline.

If you have any questions about how the new national guidelines may impact your district’s policies or practices, contact the attorney author of this legal alert listed at right in the Education Law practice group, or your BB&K attorney.

Students in Foster Care Benefit from Urgency Legislation

26 Sep 2013 00:00:00 -0800

Governor Jerry Brown this week signed into law Assembly Bill 216, an urgency measure designed to further define the standards and procedures for exempting pupils in foster care from local graduation requirements. The new law goes into effect immediately.

The chaptered bill amends Section 51225.3 and adds Section 51225.1 to the California Education Code to modify existing law in this area and add new responsibilities for school districts.

If a pupil in foster care transfers between schools after the pupil’s second year of high school (determined either by credit completion or duration), the pupil must be exempted from district coursework and other requirements that are in addition to statewide requirements, unless the school district determines that the pupil is reasonably able to complete the additional local graduation requirements in time to graduate from high school by the end of the pupil’s fourth year.

Under AB 216, school districts have new notification requirements and timelines, and must give pupils in foster care the option of completing a fifth year of high school, if desired, in order to satisfy the local graduation requirements. AB 216 also requires more communication with the pupil’s representatives -- i.e., the person holding the right to make educational decisions for the pupil and the pupil’s social worker.

The new law includes a number of provisions aimed at protecting pupils in foster care and the integrity of the exemption process. For example, a school district may not require a pupil to accept the exemption, and may not deny the pupil enrollment in courses for which he or she is otherwise eligible. In addition, if a pupil exempt from local requirements completes statewide coursework before the end of his or her fourth year, the school district may not require or request that the pupil graduate early. Once granted, an exemption may not be revoked or terminated, even if the pupil is no longer under the court’s jurisdiction. Finally, a school transfer may not be requested solely to qualify the pupil for the exemption.

The entire text of the chaptered bill can be found here.

If you have any questions regarding Assembly Bill 216 or the rights of students in foster care, contact the attorney author of this legal alert listed at right in the Education Law practice group, or your BB&K attorney.

The U.S. Department of Education Continues Its War on Bullying

19 Sep 2013 00:00:00 -0800

A school district’s failure to properly address bullying of students with disabilities could result in a denial of a free appropriate public education (FAPE) for those students. This is the message clearly conveyed to school districts in an August “Dear Colleague” letter issued by the United States Department of Education’s Office of Special Education and Rehabilitative Services (OSERS).

In the letter, OSERS reminds school districts that students with disabilities are disproportionately affected by bullying. If bullying or harassment results in the student not receiving meaningful educational benefit, it may constitute a denial of a FAPE under the Individuals with Disabilities Act (IDEA). Furthermore, in situations involving a student who has not previously been identified as a child with a disability, “bullying may also trigger a school’s child find obligations under the IDEA.” It is also important to note that, even if the bullying is unrelated to the student’s disability, if it results in the student not receiving meaningful educational benefit, it constitutes a denial of FAPE that must be remedied.

The OSERS letter included a document entitled “Effective Evidence-based Practices for Preventing and Addressing Bullying” which provides school districts with strategies and resources to effectively prevent and respond to bullying.

The “Dear Colleague” letter is one of a series of efforts by the U.S. Department of Education to combat bullying in the schools. In addition to holding annual anti-bullying summits and launching its StopBullying.gov website, in June of this year, U.S. Secretary of Education Arne Duncan produced a video: “It Gets Better” which addresses bullying based on sexual orientation.

At the state level, California education officials may be ramping up their efforts in this area as well. The California State Auditor, in an extensive report entitled School Safety and Nondiscrimination Laws, concluded that improvement is needed at both the State and local levels to address bullying, harassment and discrimination in the schools. The August 2013 audit report was requested by the Joint Legislative Audit Committee and focused on the implementation of nondiscrimination laws and programs by both local educational agencies (LEAs) and the California Department of Education (CDE).

In the report, the State Auditor concluded that, while most LEAs had the required policies in place, they did not evaluate the effectiveness of their anti-bullying and nondiscrimination program. Some LEAs also did not meet the required timeline for completing an investigation, failed to maintain adequate documentation of complaints, or otherwise failed to effectively implement their bullying prevention and response programs. The report also recommended that CDE exercise stronger leadership, provide more current resources for school districts, and improve its response time to complaints. A fact sheet related to the report can be viewed here.

If you have any questions regarding the U.S. Department of Education or State efforts to reduce bullying in schools, contact one of the attorney authors of this legal alert listed at right, or your BB&K Education Law attorney.

AB 1266 Expands Rights of Transgender Students

14 Aug 2013 00:00:00 -0800

This week, Governor Jerry Brown signed into law Assembly Bill 1266, which adds a single sentence to California Education Code section 221.5 – a section that has long prohibited public schools from limiting participation in classes and programs based on the sex of the pupil. If unchallenged, AB 1266 will go into effect on January 1, 2014.

AB 1266 added this language to Education Code section 221.5:

(f) A pupil shall be permitted to participate in sex-segregated school programs and activities, including athletic teams and competitions, and use facilities consistent with his or her gender identity, irrespective of the gender listed on the pupil’s records.

While intended by its author to provide guidance and consistency for public schools implementing existing anti-discrimination laws, AB 1266 creates significant challenges for school districts, and more confusion as well.

It is important to note that Education Code section 220 currently prohibits discrimination in the schools based on actual or perceived disability, gender, gender identity, gender expression, nationality, race or ethnicity, religion, sexual orientation, or one’s association with individuals with those characteristics. Therefore, transgender students are currently protected against discrimination in the schools, and complaint procedures are in place at the school district, state and federal levels to address allegations of bullying or other discrimination against transgender students.

The new law does nothing to strengthen these anti-discrimination laws, but it does create a new state mandate that expressly allows students to use restroom and locker room facilities of the opposite sex, but consistent with the student’s gender identity. At the same time, Education Code section 231, a long-standing statute on a similar subject, maintains that “Nothing herein shall be construed to prohibit any educational institution from maintaining separate toilet facilities, locker rooms or living facilities for the different sexes, so long as comparable facilities are provided.” Note that this provision does not address gender identity, but suggests that restroom and locker room use may be limited by sex. Additionally, the U.S. Department of Education Office for Civil Rights has issued guidance in the past regarding application of federal discrimination laws in the schools, and has stopped short of requiring school districts to allow transgender students to use restroom and locker facilities consistent with their gender identity.

Due to the controversy surrounding this issue, we may see one or more court challenges to AB 1266 or legislative efforts to address concerns about implementation. However, in the meantime, school districts can begin preparing for January 1, 2014 by doing the following:

Assure parents that the school district will continue to protect the rights of all students, and will develop protocols and practices that provide for a safe and orderly environment consistent with the law.
Review board policies and administrative procedures prohibiting discrimination based on sex, gender and gender identity to determine whether any changes are required to bring them current, regardless of whether or not revisions are needed to specifically address the restroom issue. With a spotlight on this new bill, school districts are likely to be under greater scrutiny from parents and enforcement agencies with respect to policies and practices in this area.
Keep apprised of any developments relating to AB 1266 and how implementation of the law may be impacted before January 1, 2014.
Work with legal counsel to develop a plan on how AB 1266 will be implemented in a manner that establishes reasonable practices and protocols to protect the rights of all students while also maintaining a safe and orderly environment.

For any questions on this new law or how it may impact your school district, please contact Dina Harris in Best Best & Krieger’s Education Law practice group or your BB&K attorney.

Bullying and Cyber-Bullying Remain Hot Issues

02 Dec 2011 00:00:00 -0800

Governor Jerry Brown recently signed into law three bills (AB 9, AB 1156 and AB 620) aimed at addressing bullying in schools. In so doing, Governor Brown affirmed direction from the state and federal Departments of Education and the Office for Civil Rights that bullying in schools is unacceptable and school district personnel must now take action not only to stop it, but must also make sure that it does not recur. While the bills affecting K-12 school districts do not go into effect until July 1, 2012, school officials should start planning now so that required revisions to policies and practices can be in place by this date.

AB 9 requires K-12 school districts to revise their policies prohibiting unlawful discrimination, harassment and intimidation based on certain actual or perceived characteristics, to prohibit bullying based on those characteristics, and to publicize those policies. The bill also requires that school districts have a process for receiving and investigating complaints of bullying, and requires the Superintendent of Public Instruction to provide information about resources available to assist youth who have been subjected to school-based discrimination, harassment, intimidation or bullying. This bill goes into effect on July 1, 2012.

AB 1156 seeks to foster more positive learning environments in K-12 school districts. It notably expands the California Education Code definition of “bullying” and gives pupils who have been victims of bullying priority in transferring to another school district. It encourages schools to include policies and procedures aimed at the prevention of bullying in their school safety plans, and requires the Department of Justice and the Department of Education to contract with professional trainers to coordinate statewide workshops to assist school districts in the prevention of bullying. This bill also goes into effect on July 1, 2012.

AB 620 relates specifically to higher education and provides for the adoption of policies on harassment, intimidation and bullying as part of the rules governing student behavior by governing boards of postsecondary educational institutions that receive public funds.

Two other measures were adopted earlier this year to address cyber-bullying: AB 746, which goes into effect January 1, 2012, amended Education Code section 32261 to expand the definition of “electronic act” to include posts on a social network Internet Web site.

At the federal level, on August 10, 2011, the FCC issued Report and Order FCC 11-125 that requires E-rate applicants to certify that their Internet safety policies, required by the Children Internet Protection Act (CIPA), provide for the education of students concerning appropriate online behavior, including interacting with other individuals on social networking websites and in chat rooms, and regarding cyber-bullying awareness and response. This requirement goes into effect July 1, 2012, coinciding with the two California bills affecting K-12 school districts listed above.

For more information or assistance in addressing specific bullying requirements in your school district, please contact Dina Harris, Cathy Holmes or another attorney in BB&K’s School Law practice group.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

Courts Confirm Discipline for Off-Campus Speech Must Meet the "Tinker" Test

19 Sep 2011 00:00:00 -0800

Three recent federal court decisions may affect the ability of school districts to discipline students for online speech. Although these decisions are not binding in California, they illustrate how this area of law is developing nationally, and may be persuasive to Ninth Circuit federal courts faced with similar cases.

The first two cases, J.S. v. Blue Mountain School District and Layshock v. Hermitage School District, involved student-created, fake MySpace profiles of school principals. The profiles were created at the students’ homes with pictures taken from the school website, and contained vulgar and offensive language describing the principals and their interests. Decided in June 2011 by a full panel of the Third Circuit Court of Appeals, the court ultimately found for the students in both cases.

In analyzing whether the school districts violated the students’ First Amendment rights for their online speech, the court applied the “substantial and material disruption” test established by the U.S. Supreme Court in Tinker v. Des Moines Independent Community School District (1969) 393 U.S. 503. The court determined that, based on the particular facts in those cases, the websites did not create enough of a disruption on campus to warrant discipline. Although students could visit the sites on campus, and the information on the website was derogatory, the court believed it was not foreseeable that a substantial disruption would occur. Furthermore, the court explained that students cannot be disciplined for vulgar and offensive speech that takes place off campus, citing Bethel School District v. Fraser (1986) 478 U.S. 675.

In July, the Fourth Circuit Court of Appeals ruled differently. In Kowalski v. Berkeley County Schools, the court found that discipline was appropriate when a student created a MySpace page where students could post pictures and make derogatory comments about another student in their class. Although the webpage was created off-campus on a home computer, the court found it foreseeable that the conduct would reach the school environment and cause a substantial disruption. All individuals invited to the website were students, and the website created a direct attack on another student at the school, causing that student to miss school.

These rulings on off-campus online harassment may indicate how the Ninth Circuit or the U.S. Supreme Court would rule if the issue reaches them in the future. California’s own Education Code provides that students may be disciplined for electronic harassment of students or school personnel when the actions relate to school activity or attendance. (Ed. Code § 48900(r)&(s).) Despite that express statutory authority, to avoid a successful First Amendment claim, schools should be cautious when disciplining students for off-campus speech, ensuring that the misconduct is sufficiently related to the school environment and meets the Tinker test of “substantial and material disruption” before initiating discipline. Whether any given case meets those standards will depend on the particular facts and circumstances surrounding the incidents.

For more information on these cases, or specific free speech and discipline issues facing your school district, please contact Dina Harris, Yonit Kovnator or another attorney in BB&K’s School Law practice group.

Disclaimer: BB&K Legal Alerts are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communiqué.

California Supreme Court Bolsters Student Free-Speech Rights

14 Sep 2007 00:00:00 -0800

In a setback for school districts, the California Supreme Court ruled a high school student could write a disrespectful, anti-immigrant editorial for the school newspaper without interference from school officials.

The student’s editorial expressed the view that any non-English-speaking Latino was likely an illegal immigrant and authorities should question each person. The school principal determined the editorial could cause a disturbance and ordered issues of the school paper removed from circulation. The principal also wrote parents stating the editorial violated school standards. The student admitted he was physically attacked on campus after his editorial was published. The school did not discipline him.

The state Supreme Court justices, in a 3-0 ruling, denied review of an appeal by the Novato Unified School District (NUSD). The lower court held NUSD violated the student's rights by halting the publication.

The court relied on a 1971 California statute that states students are entitled to freedom of speech and of the press unless what they say is obscene or libelous, or creates a "clear and present danger" of lawbreaking or disorder on campus.

Justice Linda Gemello said that provocative speech is protected unless the speaker calls for a disturbance or "the manner of expression (as opposed to the contents of the ideas) is so inflammatory that the speech itself provokes the disturbance."

Gemello concluded the student wrote the editorial in a "disrespectful and unsophisticated manner," but was not directly provocative.

NUSD contended the California statute should let school authorities decide whether a statement is likely to incite disruption.

For more information on this decision on, please contact Best Best & Krieger's School Law Practice Group. ______________________________________________________________

Disclaimer: BB&K eBulletins are not intended as legal advice. Additional facts or future developments may affect subjects contained herein. Seek the advice of an attorney before acting or relying upon any information in this communication. (c) 2007 Best Best & Krieger LLP