Monthly Archives:' November 2017

Governor Brown Signs AB 1360 into Law, Authorizing Additional Categories of Enrollment Preferences and Requiring Increased Detail for Suspension/Expulsion Procedures Contained in Charter Petitions

Author: Colby Mills, Attorney at Law

On October 13, 2017, the Governor Brown signed Assembly Bill (AB) 1360 into law to take effect January 1, 2018.  AB 1360 makes several small changes to the 15 “reasonably comprehensive descriptions” a charter petition is required to contain under the Charter Schools Act (Education Code § 47605(b)(5)).  Notably, AB 1360 received support from both the California Charter Schools Association and the California Teachers Association.

First, AB 1360 permits charter schools to include two additional “enrollment preferences” categories when setting forth a charter school’s lottery process to be used when applications exceed a school’s capacity.  Charter schools are now specifically authorized to use two previously popular (but not codified into statute) preference categories:

  1. Children of the charter school’s teachers, staff, and founders; and
  2. Siblings of current charter school students.

Charter schools may still specify additional preferences, such as residents of the authorizing school district, but all preferences must be consistent with federal and state law, and may not result in limiting enrollment access for pupils with disabilities or other disadvantaged students.

Second, AB 1360 now requires charter petitions to specify what acts can result in a suspension or expulsion and set forth due process procedures for suspensions/expulsions.  Depending on the length of the suspension, or if expulsion is sought, a student must be provided “oral or written notice of the charges against the pupil,”  “an explanation of the evidence that supports the charges and an opportunity for the pupil to present his or her side of the story,” and/or “a hearing adjudicated by a neutral officer within a reasonable number of days at which the pupil has a fair opportunity to present testimony, evidence, and witnesses and confront and cross-examine adverse witnesses, and at which the pupil has the right to bring legal counsel or an advocate.”

Moreover, for any non-voluntary removal, the student’s parent or guardian must be given written notice of intent to remove the pupil no less than 5 school days in advance, and the parent/guardian must be given the right to challenge the non-voluntary removal under the same procedures as an expulsion.

Additionally, AB 1360 allows charter schools to encourage parental involvement—whether through volunteer hours or donations—but prohibits charter schools from requiring parental involvement as a condition to acceptance or continuing enrollment in the school.

Prompt Action Prevents Child Find Violation

Author: Michael Tucker, Attorney at Law

Summary:

On October 31, 2017, the U.S. District Court of the Western District of Pennsylvania upheld a decision finding that a local education agency (LEA) did not violate Child Find requirements when the LEA acted promptly by assessing and providing services to the student.

Facts:

As a preschool student, Student received some special education services even though the preschool determined that Student’s delays did not impede Student’s learning.  Upon entering kindergarten with the District, the District evaluated Student to determine if continued services were necessary.  The District determined that while not disabled, Student suffered from “behavioral and focus issues.”  The District’s IEP team concluded that the kindergarten classroom’s “repetitive and consistent methodology” would address Student’s issues.

However, after Student began attending classes, his classroom teacher became concerned regarding his “extreme response to frustration, expressed fear of the classroom toilet…[his] difficulty staying on task and expressing himself, and [he] would ‘meltdown’ by crying loudly.”  Within a few months, District had completed several assessments and convened an IEP meeting. As the assessments were being completed, Student received ongoing counseling from the school psychologist and behavioral specialist.  As a result of the IEP meeting, Student received monthly therapy sessions, counseling, weekly behavioral interventions and other services.  Student progressed with these interventions and the behavioral interventions were concluded prior to Student’s admission into first grade.

Student’s progress seemingly continued until midway through his first grade year when many of his behavioral issues returned.  Parents filed a due process complaint alleging that Student was denied a free appropriate public education (FAPE) when the District failed to meet its Child Find obligations.  Parents alleged that the District failed to identify the Student as disabled and waited too long to implement appropriate accommodations.

Finding:

Under the IDEA, Child Find requires that students in “need of special education and related services are identified, located and evaluated.” 20 U.S.C. § 1412(a)(3).  Thus, LEAs maintain a continuing obligation…to identify and evaluate all students who are reasonably suspected of having a disability.”  P.P. ex rel. Michael P. v. West Chester Area School Dist., (2009) 585 F.3d 727, 738.

However, LEAs are not required to identify a student as disabled at the “earliest possible moment,” especially in very young children.  Board of Educ. Of Fayette Cnty., Ky. v. L.M., (2007) 478 F.3d 307, 313 as cited by D.K. v. Abington School Dist., (2012) 696 F.3d 233, 251.

Here, the court found no Child Find violation because the District acted within weeks of Student’s enrollment and Student’s young age.

Discussion:

This case illustrates the difficulty in satisfying an LEA’s Child Find obligations with very young students.  The court noted that the less structured environment of early grades combined with a student’s relative immaturity may make it difficult for LEAs to differentiate between traditional students and those with disabilities.  However, once a suspected disability and potential need for special education arises, an LEA is required to act promptly in order to satisfy its requirements under Child Find.  The District in this case did just that, acting within weeks of Student’s initial enrollment in kindergarten.  The court concluded that this prompt action satisfied the District’s Child Find obligations.