Monthly Archives:' September 2016

District Court Denies Preliminary Injunction In SB 277 Lawsuit, Finds That Students With Individualized Education Programs Are Exempt From School Vaccination Requirements.

On August 26, 2016, the US District Court for the Southern District of California denied Plaintiffs’ motion for preliminary injunction which sought to prevent California’s updated school vaccination requirements—Senate Bill 277—from removing the “personal belief exemption”  (PBE) beginning in the 2016-17 academic year. (Whitlow, et al., v. Cal. Dep’t. of Education, Case no. 16cv1715 (August 28, 2016).)

District Court Finds Plaintiffs Unlikely To Show SB 277 Is Unconstitutional.

Under SB 277, parents may no longer exempt their children from the State’s vaccination requirements based only on the parent’s personal beliefs.  The Plaintiffs alleged SB 277 “violates their federal and state constitutional rights and federal and state statutory law.”  (Order denying Plaintiffs’ motion for preliminary injunction, Whitlow, Case no. 16cv1715 at p. 1 (“Order”).)  The District Court disagreed and found Plaintiffs “have failed to show a likelihood of success” on their unconstitutionality arguments.  (Order, at pp. 8-9, 12-13.)  The District Court further found that “for more than 100 years, the United States Supreme Court has upheld the right of the States to enact and enforce laws requiring citizens to be vaccinated;” that “the Supreme Court has reiterated that fundamental rights under the First Amendment to the United States Constitution do not overcome the State’s interest in protecting a child’s health;” and “the State is well within its powers to condition school enrollment on vaccination.”  (Order, at pp. 3, 5, 13.)

Notably, instead of appealing the District Court’s ruling to the 9th Circuit, Plaintiffs instead withdrew their lawsuit without prejudice, presumably to preserve their ability to file another challenge at a later time.  Because this ruling was only on Plaintiffs’ motion for preliminary injunction and not a final merits determination, and not an appellate court opinion, the ruling is not binding authority.  However, the ruling does carry significant persuasive effect and would be unlikely to change should Plaintiffs refile their lawsuit.

Although No New PBEs Will Be Granted, Several Exemption Categories Still Exist.

The District Court explained that SB 277 leaves in place several important exemptions to the vaccination requirements.  First, students may still obtain medical exemptions from their doctors.  Second, students in home-based private school or independent study (without classroom-based instruction) need not be vaccinated.  Third, students with valid PBEs as of January 1, 2016 will remain exempted until they enter Kindergarten or 7th grade, after which no further PBEs will be granted.

Students With IEPs Are Also Exempted From The Vaccination Requirements.

Finally, and most importantly for schools considering special education issues, is that students who qualify for an IEP under the Individuals with Disabilities in Education Act (IDEA) are affirmatively exempted from the vaccination requirements under Cal. Health and Safety Code section 120335(h).  (Order, at pp. 3, 11-12.)  Section 120335(h) states that “this section does not prohibit a pupil who qualifies for an individualized education program, … from accessing any special education and related services required by his or her individualized education program.”  As such, students with an IEP cannot be excluded from school based on their vaccination status.  However, the District Court stated that such protection does not extend to students covered only under the Americans with Disabilities Act or Section 504 of the Rehabilitation Act of 1973. (Order, at pp. 11-13.)

Final Takeaways

  • Students receiving special education services under an IEP may not be excluded from school based on their vaccination status.
  • This exemption does not extend to students with only 504 Plans or ADA accommodations .
  • Medical exemptions may still be obtained.
  • Previously granted Personal Belief Exemptions remain valid until the student enters Kindergarten or 7th Grade.

PERB Finds 6 Week Response Delay to Request for Information Unreasonable

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Author: Michael Tucker, Attorney at Law

The Petaluma Federation of Teachers (“PFT”) filed an unfair practice charge against the Petaluma City Elementary School District/Joint Union High School District (“District”) for failing to timely provide requested information necessary and relevant for contract negotiations, among other things.  PFT originally requested the information on July 2, 2014.  The District did not respond to the request until August 13, 2014, approximately six weeks after the request was originally made.  ((2016) PERB Decision No. 2485.)

In partially overturning a prior dismissal of the charge, the PERB Board reinforced a public agencies obligation to provide a timely response to a request for information from an employee group.  “Once relevant information has been requested,” the Board explained, “the employer must either supply the information or timely and adequately explain its reasons for not complying with the request.  (Chula Vista City School District (1990) PERB Decision No. 834.)  Failing to provide such information is equivalent to a failure to bargain in good faith.  (Los Angeles Superior Court (2010) PERB Decision No. 2112.)  In this case, the District did not provide an initial response for six weeks, and did not provide an explanation regarding why certain information was missing until September 3, 2014.

The case serves as a reminder of how important communication can be in any negotiation or dispute.  Had the District been up front in describing its process in collecting the information and the information availability, the Board may have ruled differently.  It is always good practice to immediately respond to a request for information from an employee group that the request is being processed and provide a proposed date for disclosure.  Had the District in this case provided such information, they may not have found themselves with labor strife and an adverse ruling from PERB.

 

The Feds Have Been Busy! Several Guidance Documents Issued on Obligations to Students with ADHD and Behavioral Supports to Students with Disabilities.

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Author: Heather Edwards, Attorney at Law

On July 26, 2016, the Office of Civil Rights (“OCR”) issued guidance on local educational agencies’ obligations to students with attention deficit hyperactivity disorder (“ADHD”). Dear Colleague Letter and Resource Guide (68 IDELR 52). OCR explained that 1 in 9 OCR complaints involve allegations of discrimination against a student with ADHD. Most problems relate to not adequately evaluating students with ADHD in a timely manner. The new guidance provides valuable reminders to share with local educational agency staff including the following tips:

  • Students who perform well academically can still be eligible under Section 504.
  • OCR presumes eligibility with ADHD diagnosis under Section 504.
  • Medical assessments are not required.
  • RTI, PBIS, or other general education interventions cannot delay an evaluation.
  • Providing informal accommodations without conducting an evaluation is not enough to satisfy obligations under Section 504.

The guidance letter is available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201607-504-adhd.pdf

Also, on August 1, 2016, the Office of Special Education and Rehabilitative Services (“OSERS”) issued guidance on behavioral supports to students with disabilities. Dear Colleague Letter, 116 LRP 33108. OSERS explained that recent data on short-term disciplinary removals (10 school days or less in a school year) suggest that children with disabilities may not be receiving appropriate behavioral interventions/supports in their IEPs. Specifically, the evidence shows that 10% of all children with disabilities were subject to a short-term removal, with children of color with disabilities facing higher rates of removal (e.g., 19% of black children with disabilities were subject to a removal of 10 school days or less within a single school year).  The new guidance is intended to clarify schools’ obligation to provide appropriate behavioral supports to children with disabilities who require such supports in order to receive FAPE. Specifically, in many cases, a student’s misbehavior and resulting discipline triggers the IEP team to consider providing positive behavioral interventions or change the ones that it’s already providing. The guidance also clarifies that schools’ impression of 10 “free” days in which to discipline a student should not discourage schools from addressing whether a student needs behavioral supports to receive FAPE.

The new guidance also provides the following specific examples of circumstances that could lead to denials of FAPE for a student with disabilities:

  • IEP did not consider inclusion of positive behavior interventions and supports in response to behavior that impedes child’s learning or that of others.
  • School failed to convene IEP team meeting to address behavioral concerns.
  • IEP team failed to discuss parent’s concerns about child’s behavior and its effects on learning during an IEP team meeting.
  • Lack of behavioral supports documented in the IEP even when deemed necessary.
  • Inappropriate behavioral supports in the IEP.
  • Appropriate behavioral supports in IEP not being implemented or not being properly implemented (e.g., teachers not adequately trained on implementation).
  • School staff implementation of behavioral supports not included in IEP that are not appropriate for the child.
  • Cautioned against inappropriate use of exclusionary disciplinary measures that would constitute a disciplinary removal if implemented repeatedly. (Example: regularly requiring a child with a disability to leave school early and miss instructional time due to their behavior).

The following link provides two resource documents to assist teachers and school leaders with classroom management strategies and assist schools in implementing schoolwide behavioral efforts. http://www2.ed.gov/policy/gen/guid/school-discipline/files/dcl-on-pbis-in-ieps–08-01-2016.pdf