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Janus Strikes Down Deductions for Agency Fees Without “Affirmative Consent”
On June 27, 2018, the Supreme Court ruled that so-called union “agency fees” collected from non-members of public employee unions violates the non-members’ First Amendment rights because it compels the non-members to support speech with which they may not agree. As a result, “(n)either an agency fee nor any other payment to the union may be deducted from a nonmember’s wages, nor may any other attempt be made to collect such a payment unless the employee affirmatively consents to pay.”
Senate Bill 866 Seeks to Blunt the Impact of Janus
At the same time, Governor Brown signed in to law SB 866 which made multiple changes to the Education Code and Government Code with respect to deductions from employee wages and limits on an employer’s ability to send “mass communications” to employees about their rights to join or not join an employee organization. SB 866 was not limited to these two issues, but they are the focus of this Legal Alert as they are of immediate interest to public employers. (You can view SB 866 in its entirety here.)
SB 866 was drafted in anticipation of the Janus ruling without the benefit of the actual ruling, raising difficult questions for employers about whether Janus and SB 866 conflict with each other. SB 866 requires employers to make deductions from an employee’s wages “by the amount which it has been requested in a revocable written authorization by the employee . . . for the purpose of paying the dues . . . in any local professional organization or in any statewide professional organization . . . or for any other service, program, or committee.” Additionally, “[t]he revocable written authorization shall remain in effect until expressly revoked in writing by the employee . . . . The governing board shall honor the terms of the employee’s written authorization for payroll deductions.” (See, e.g., Educ. Code §§ 45060(a), (c), (e); see also Govt. Code §§ 1150, 1152, 1153, and 1157.3 for similar requirements for non-education public agencies.)
Balancing Janus and SB 866
The question facing employers is: are SB 866’s provisions about honoring employees’ existing authorizations to deduct agency fees compatible with Janus’s ruling that employees must affirmatively consent to wage deductions for agency fees? Stated differently, does an existing authorization to make a deduction for an agency fee constitute “affirmative consent” under Janus?
We can reasonably predict the competing answers to these questions. “Yes,” some may say, existing authorizations constitute “affirmative consent” under Janus, so public employers must continue to make the deductions under SB 866 unless they receive notice that an employee has revoked consent. Others will argue “no” by reasoning that employees were previously given a choice restricted to paying full union dues or a lesser agency fee, so choosing the lesser agency fee was not “affirmative consent” within the meaning and intent of the Janus ruling; therefore, public employers should stop collecting agency fees immediately unless they receive notice that employees have opted to continue paying agency fees.
Unless or until the Legislature or the courts provide further guidance on these issues, public employers must do their best to honor state law and the Supreme Court’s ruling. You should consult with your legal counsel to determine the best approach to existing employees’ agency fees deductions for your unique situation. However, we generally recommend that public employers inform their employees’ exclusive representatives for collective bargaining (the “union”) that agency fees will no longer be collected unless or until the union identifies the employees for whom agency fees should be deducted. If a public employer relies upon information provided by the local union(s) about which employees have and have not authorized the deduction of union dues or agency fees, SB 866 provides that the union shall indemnify the employer for any employee claims related to deductions made in reliance on the union-provided information. (See, e.g., Educ. Code § 45060(e); Govt. Code § 1157.12.)
Ultimately, a collaborative approach is the best method to avoid potential liability and, if your local union promptly provides information on authorizations for agency fee deductions, a public employer has the best chance to comply with both Janus and SB 866 while protecting itself from legal challenges.
SB 866 Also Places New Limits on Employers’ Communications With Employees
Collaboration is also required if a public employer wishes to communicate with employees about their rights post-Janus. The employer must meet and confer with the employees’ exclusive representative on the content of any “mass communication” to employees or job applicants about their rights to joint and support or not join and not support an employee organization. (Govt. Code § 3553.) The phrase “mass communication” can be misleading because it covers a written document or script for an oral message that will be delivered to “multiple” employees. (Govt. Code § 3553(e).) If the parties cannot agree on the content of the mass communication, then the employer must simultaneously distribute or communicate its message with a message from the employees’ exclusive representative “of reasonable length.” (Govt. Code § 3553(c).)
U.S. Department of Education’s Office for Civil Rights Issues New Rule Requiring Dismissal of Allegations Filed as Part of Bulk or Mass Complaints
On March 5, 2018, the U.S. Department of Education issued a new version of the Office for Civil Rights’ Case Processing Manual. This is the first revision of the manual under the Trump administration, and first revision since 2015. The new manual makes several changes, primarily aimed at reducing a backlog of complaints and narrowing the scope of investigations. The new manual is available at https://www2.ed.gov/about/offices/list/ocr/docs/ocrcpm.pdf
The new manual aims to ensure cases are handled in a timely manner, improving efficiency, effectiveness and clarity. One area in which OCR hopes to achieve this goal is in the manual’s instruction that OCR “will” dismiss bulk or mass complaints—complaints that are “a continuation of a pattern of complaints previously filed with OCR by an individual or group against multiple recipients or a complaint is filed for the first time against multiple recipients that, viewed as a whole, places an unreasonable burden on OCR’s resources.”
This new rule targets “mass filers,” as OCR has noted that just three people accounted for 23 percent of complaints filed in 2017, and 41 percent of complaints filed in 2016. Many California school districts were targets of these mass filed complaints, including complaints filed regarding school website accessibility standards. School districts defending website accessibility complaints may find the new rule quite helpful, as it has already resulted in the dismissal of over 500 mass-filed complaints. Districts facing a mass-filed complaint may be able to obtain dismissal based on this new rule.
This is not the only change in the new manual. The new rules also seek to narrow the scope of investigations, removing references to “systemic” investigations—the prior practice of requesting years of data to determine whether problems extended beyond a specific complaint. Instead, investigators are instructed to focus only on the specific allegations contained in the filed complaint.
For school agencies, this means that investigations moving forward are likely to be less costly in terms of time, work-hours, and expense. Under the new rule OCR will no longer make broad, wide-ranging requests of multiple years of student data—instead, OCR is likely to focus their requests on the student(s) and the time period directly involved in the complaint. It may also result in resolutions more directly tailored to the individual allegations in the complaint, instead of system-wide changes. However, OCR has stated that it will open investigations into broad, long reaching issues where warranted, citing the Title IX investigation into “systemic issues” around Michigan State University’s handling of reports of sexual violence against Larry Nassar.
In a recent special education due process hearing decision, the Office of Administrative Hearings held that a school district denied a student a free appropriate public education (“FAPE”) by failing to address allegations of bullying in an IEP meeting. Colton Unified School District (OAH No. 2017060750).
In this case, the parents complained multiple times to the school that their kindergartner with autism and a speech and language impairment was being bullied. The parents had reportedly observed other children taunting their son and excluding him from activities and had witnessed him coming home with unexplained injuries. Parents raised these concerns at an IEP meeting and suggested that the bullying may be the result of the student’s lack of social skills for which a behavioral aide might be warranted. In response, the school district informed the parents that there was a district bullying complaint form they could fill out. No further discussion occurred at the IEP meeting regarding the alleged bullying.
The hearing officer determined that the district denied the student FAPE by failing to address the reported bullying. The hearing officer explained that formal procedures for investigating bullying are separate from the IEP team’s obligations to address the impact of bullying on FAPE. Moreover, it did not matter that the reports of bullying were disbelieved or that the team felt the claims were better handled by the school’s discipline process. Instead, the IEP team should have at least discussed the parents’ concerns, documented the conversation, and determined the impact, if any, on a student’s receipt of FAPE.
IEP teams need to know that bullying of a student with a disability on any basis can result in a denial of FAPE. When investigating whether a student with disabilities who was bullied was denied FAPE, the Office of Civil Rights considers several factors, including, but not limited to:
1. Did the school know or should it have known that the effects of the bullying may have affected the student’s receipt of IDEA or Section 504 services? For example, did the school know, or should it have known, about adverse changes in the student’s academic performance or behavior indicating that the student may not be receiving FAPE?
2. Did the school meet its ongoing obligation to ensure FAPE by promptly determining whether the student’s educational needs were still being met, and if not, make changes, as necessary, to his or her IEP or Section 504 plan?
Ensuring that IEP and Section 504 teams adequately address bullying or harassment of a student with a disability will minimize potential liability under a variety of federal statutes, including the IDEA, Section 504, the ADA, and Section 1983, as well as under state law.
As always, with the turn of the calendar year comes the arrival of new laws taking effect in California. Legal guidance should be sought, and the specific statute consulted, before action is taken regarding any of these new bills. Several of these new laws will affect schools, including:
Employee Rights / Application Processes
AB 1008 – “Ban the Box” / No inquiry into criminal records on application forms
AB 1008 prohibits employers from inquiring about or considering a job applicant’s criminal record prior to a conditional offer of employment.
Under AB 1008, it is an unlawful employment practice under FEHA for an employer with 5 or more employees to include on any application for employment any question that seeks the disclosure of an applicant’s conviction history.
An employer also cannot inquire into or consider the conviction history of an applicant until that applicant has received a conditional offer.
AB 168 – Use of prior salary information
AB 168 prohibits employers from asking ask about an individual’s salary history during the job application process.
AB 168 also requires an employer, upon reasonable request, to provide the pay scale for a position to an applicant.
However, if an applicant “voluntarily and without prompting disclos[es] salary history information,” an employer may still “consider or rely on that voluntarily disclosed salary history information in determining the salary for that applicant.”
SB 250 – Provision of school lunches to students with unpaid school meal fees
SB 250 ensures that school officials do not “shame,” delay or deny food to hungry students as punishment for unpaid school meal fees.
SB 250 also requires schools to direct all efforts to collect unpaid school meal fees towards parents—not students—and forbids the use of a debt collector to recover unpaid school meal fees.
AB 10 – Free Feminine Hygiene Products
AB 10 requires public schools that serve students in grades 6 through 12 to provide free pads and tampons in half of its bathrooms if at least 40 percent of the school’s students fall below the poverty line.
Firearms on School Grounds
AB 424 – No Concealed Carry on School Grounds
AB 424 removed language in an earlier statute that let school superintendents provide written authorization for employees with concealed weapons permits to bring guns onto school campuses.
AB 1360 – Changes to Charter Petition Requirements
AB 1360 permits charter schools to include siblings of current charter school students and children of the charter school’s teachers, staff, and founders as categories given “enrollment preferences” in a charter school’s lottery process.
AB 1360 also requires charter petitions to specify what specific acts can result in a suspension or expulsion, and set forth due process procedures for suspensions/expulsions.
AB 1360 also 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.
Author: Eric Stevens
In the case of M.C. v. Antelope Valley Union High Sch. Dist. (2017) 858 F.3d 1189, the Ninth Circuit Court of Appeals considered parents’ complaint that their student was denied a FAPE when a school district unilaterally changed the provision of vision services in an IEP from 240 minutes per month to 240 minutes per week. The school district claimed that the district and parents had verbally agreed to 240 minutes per week at the IEP meeting, but the signed IEP agreement contained a typo.
While providing more minutes of vision services did not substantively harm student, the Ninth Circuit Court of Appeals agreed with parents, ruling that the school district’s unilateral revision to student’s IEP was a procedural violation of the IDEA that denied student a FAPE.
A procedural violation of the IDEA can deny a student a FAPE when it seriously infringes on a parent or legal guardian’s opportunity to participate in the IEP formation process. Here, the Ninth Circuit found that parents were denied this opportunity and student was denied a FAPE.
An IEP is like any other written contract and cannot be unilaterally changed. If any party believes that the IEP needs to be changed, it must notify the other party and seek consent to an amendment. It does not matter if a local educational agency (LEA) believes that it is merely correcting a typo to reflect what was agreed upon at a meeting or to provide more services to a student. As a practical matter, the parents may disagree that the issue is a typo and seeking consent to the “correction” can help protect the LEA from a later due process complaint. As a legal matter, any unilateral change to an IEP is a procedural violation of the IDEA that may be the basis for a denial of FAPE claim as it was in this case.
The Ninth Circuit also observed that an IEP provides notice to both sides of what services will be provided to a student during the term of the IEP. The IDEA is just as concerned with parental participation in the formation of an IEP as it is in the enforcement of an IEP. When an LEA provides services that are different from what is in a signed IEP, it undermines parents’ ability to enforce the IEP. As the Ninth Circuit found in this case, it can lead to the necessity for parents to retain an attorney to clarify what services (or the amount of services) that are being provided.
Author: Michael Tucker, Attorney at Law
On July 19, 2017, a California Administrative Law Judge (ALJ) found for the Rialto Unified School District (District) in that the program offered by the District provided FAPE despite failing to identify a specify dyslexia methodology or program. (Rialto Unified School District, 2017, 70 IDELR 267.) The ALJ found that the student’s dyslexia diagnosis and needs were being satisfied through services identified to address other identified goals.
Student was a 17-year old diagnosed with dyslexia, SLD, ADHD and a mood disorder. Based on this information, the District placed Student in a special day class with two periods spent in general education classes. No goal was specifically designed to address Student’s dyslexia. Instead, the District implemented goals for reading comprehension and written expression, which according to the District, were “designed to work on Student’s deficits caused by the dyslexia.”
Despite this, the Student’s parents filed for due process based on the District’s failure to include a specific program or methodology specifically addressing Student’s dyslexia.
The ALJ ruled consistent with the 9th Circuit Court of Appeals which held that “it is not necessary for a school district to specify a methodology for each student with an IEP if specificity is not necessary to enable the student to receive an appropriate education.”
The ALJ found that the Student made sufficient academic progress on the goals implemented by the District. Moreover, the ALJ found that as long as the student’s individualized needs are met, the specific program or methodology offered is secondary to the Student’s progress.
Therefore, Local Educational Agencies (LEAs) should remain focused on programs, services, and methodologies that offer the greatest opportunity for student progress based on the student’s needs. LEAs should offer evidence of a student’s progress to a parent if the parent is concerned about the LEA’s specific program. Showing such progress may help the LEA avoid a due process filing in the event of a dispute regarding a specific program.
New Guidance Issued from U.S. Department of Education About FAPE Standard Set Forth in Endrew F. Decision
On December 7, 2017, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) released a Question and Answer (Q&A) document addressing the U.S. Supreme Court decision in Endrew F. v. Douglas County School District Re-1 (2017), which clarified the scope of the free appropriate public education (FAPE) requirements in the Individuals with Disabilities Education Act (IDEA).
In Endrew F., the U.S. Supreme Court held that an IEP must be reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances and enable the child to have the chance to meet challenging objectives. However, the court did not define the phrase “progress appropriate in light of the child’s circumstances.” This new Q&A document provides a discussion of the FAPE requirements and includes questions addressing implementation considerations including, “Is there anything IEP Teams should do differently as a result of the Endrew F. decision?”
The answer to that question appears to be that IEP teams must implement policies, procedures, and practices relating to (1) identifying present levels of academic achievement and functional performance; 2) the setting of measurable annual goals, including academic and functional goals; and 3) how a child’s progress toward meeting annual goals will be measured and reported, so that the Endrew F. standard is met for each individual child with a disability.
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
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:
- Children of the charter school’s teachers, staff, and founders; and
- 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.
Author: Michael Tucker, Attorney at Law
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.
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.
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.
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.
In California, when a special education student experiences an acute health problem which results in non-attendance at school for more than five (5) consecutive days, the local educational agency is required to inform the parent of the availability of individual instruction to be delivered in the pupil’s home, hospital, or other residential health facility (except a state hospital). Then the LEA must convene an IEP team meeting to determine appropriate educational services for the student. 5 C.C.R. § 3051.17. What happens if instead of home instruction, the parents request that a robot be included in the IEP which would allow their child to virtually attend school?
As new technology of this kind emerges, IEP teams need to know how to properly address parent requests for robots for homebound students.
For example, in Warren Hills Reg’l High Bd. of Educ., 70 IDELR 57 (SEA NJ 2017), a ninth grade student with Marfan syndrome endured multiple heart surgeries that required hospitalizations and at-home recovery. Additionally, physical challenges often prevented his attendance at school. The student reported having bouts of sadness and feelings of isolation from not being able to discuss information in class with his teachers and classmates. His parents requested that a robot be included in the IEP which would permit their son’s virtual attendance at school. The robot would allow the student to see from home what is happening in the classroom and interact with people at school through video communication. The district had concerns that the student would miss instruction in case of a breakdown in the technology or on days when he was unable to use the device due to his physical issues. It determined that home instruction was sufficient.
The parents filed a due process complaint. The hearing officer explained that determining whether a district has complied with the IDEA’s least restrictive environment (“LRE”) mandate requires deciding: 1) whether education in the regular classroom with use of supplementary aids and services can be achieved satisfactorily; and 2) if placement outside of the regular classroom is necessary for the child’s educational benefit, whether the district has included the child in school programs with children without disabilities to the maximum extent appropriate.
The hearing officer found that the district was predisposed to be against the inclusion or “even consideration” of the robot. The staff did “little to make inquiries, conduct its own due diligence, or generally explore how to make it work.” More specifically, no one from the district “made any real attempt to obtain information from other districts … [that] have successfully deployed this technology.”
As a result, the hearing officer determined that the district did not provide FAPE in the LRE because it declined to use or consider available technological modifications to allow the student access to direct instruction as it is delivered in the regular education setting.
What This Means for You: Extended absence from the classroom can have negative educational and social consequences as students may fall behind in instruction, feel isolated from their peers, and experience loneliness and depression. Telepresence robots are now helping students with significant health conditions participate in class virtually. There are a variety of devices available (e.g., tablets on wheels that can be controlled remotely by a student, or stationary devices which sit on a desk and can be remotely controlled for panning and rotating the screen) which allow students a presence in the classroom again who would otherwise have little or no interaction with classmates or teachers.
When parents request what seems like high-tech assistive technology for their child, an LEA needs to keep an open mind. The LEA is required to consider that request and explore whether such technology is appropriate to meet a student’s unique needs. The plain meaning of “consider” is to reflect on or think about with some degree of care or caution. Therefore, IEP teams will want to at least research the technology, consult with the student’s doctors, consider how much training will be required of staff, classmates, and the student, address issues related to confidentiality for other students in the classroom, and discuss Internet connectivity issues.