By Michael Tucker, Attorney at Law
On September 28, 2018, Governor Jerry Brown wrote that in vetoing Senate Bill 1127, officials should “pause before going much further down this path” that would lead to the use of medical cannabis on school district, charter school and county office of education campuses. The vetoed bill would have permitted Local Educational Agency (LEA) governing boards to establish policies allowing parents or guardians to possess and administer medical cannabis to a student. While government officials “pause” to reflect on this approach, LEAs are faced with the very real possibility that a student could request to use medical cannabis on campus with little guidance.
Fortunately, a recent Office of Administrative Hearings decision sheds some light on how the seemingly conflicting federal and state cannabis laws may be interpreted when applied to a student requiring cannabis use on campus. In Student v. Rincon Valley Unified School District (OAH No. 2018050651), the hearing officer ruled that Rincon Valley denied a student who required the use of a cannabis medical product to reduce seizures a free and appropriate public education (FAPE) by only offering home instruction in an attempt to keep the cannabis product off campus. Rincon Valley attempted to justify their FAPE offer by providing that all cannabis possession is prohibited by federal law and the Drug-Free Workplace Act requires that Rincon Valley maintain a drug-free workplace for its employees. However, the hearing officer found that denying a student placement in the least restrictive environment based on a vague speculation that a federal law is being violated is unreasonable. Below are three suggestions based on this ruling to assist LEAs in navigating this complicated issue.
1. LEAs Should Not Assume a Federal Law Violation.
According to the hearing officer in Rincon Valley, the LEA was unable to specifically articulate the federal laws that created the risk of prosecution for allowing the medical cannabis to be possessed and used on campus. Instead, the hearing officer carefully analyzed the various state and federal statutes applicable to medical cannabis possession and on-campus use and determined the risk of federal prosecution to be very low. Therefore, if an LEA is basing any decisions regarding medical cannabis use on federal law, the LEA should carefully articulate those requirements.
2. LEAs Should Assess the Student’s Needs Against the Risk of a Legal Violation.
The hearing officer in Rincon Valley may have sided with the LEA if the risk of prosecution for violation of federal law was more significant when compared to the student’s need for the medical cannabis. The student used THC oil to prevent and limit the effects of seizures due to Dravet Syndrome. To support the student’s need, the student had several medical professionals explain how the THC oil was necessary and effective to prevent unnecessary and severe seizure complications. In response, the hearing office did not find that the LEAs concerns regarding federal prosecution for cannabis possession on campus to be comparable. Based on this, if an LEA is using a potential legal violation to support the LEA’s decision to deny the use of medical cannabis on campus then the LEA should weigh that consideration against the student’s need for the medical cannabis.
3. LEAs Should Carefully Evaluate a Student’s Needs if Medical Cannabis is Requested.
In Rincon Valley, the student was able to clearly and effectively articulate a connection between the student’s medical needs and medical cannabis. The student also provided evidence that the student was able to effectively access her education due to the benefits of medical cannabis. Therefore, LEAs should request the same level of support if a request is received for a student to use medical cannabis. LEAs should consider requesting permission to discuss the need for the medical cannabis with the student’s medical team so that the LEA can consider this information when making a placement offer.
By Michael Tucker, Attorney at Law
On August 7, 2018, a U.S. District Court in Colorado ruled that a student who quickly recovered lost skills due to a FAPE (Free Appropriate Public Education) denial by a school district removed the need for compensatory education. (Smith v. Cheyenne Mountain School District, (2018) 72 IDELR 173).
Student was initially prevented from enrolling in a local charter school by the defendant school district based on the charter school’s interpretation of a state law regarding student educational choice. After being permitted to re-enroll, Parents claimed that the two-month denial of FAPE required compensatory education to replace any lost educational progress that was missed during the Student’s two-month absence.
Student returned to the educational environment showing a loss of skills. However, test results and teacher testimony during a due process hearing revealed that Student recovered those lost skills in a matter of days.
The Court ruled that the purpose of compensatory education “is to make up for progress the student lost as a result of the district’s IDEA violation.” Based on the Student’s quick return to his previous skill level, the Court denied the request for compensatory education. The Court’s ruling is currently being appealed by Parents.
A common issue faced by local educational agencies (LEAs) while educating students with disabilities is how to address prolonged absences and skills regression. One option to address potential deficiencies is to provide or offer compensatory education.
Taking note of a student’s abilities, either through a formal evaluation or observation, when a student returns from an absence and comparing those skills to the student after a few days may assist the LEA in determining what, if any, additional services should be provided. Based on that information, teachers and staff could focus their efforts to return the student to his/her previous performance standards without the need for formalized compensatory education.
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.