Author: Michael Tucker, Attorney at Law
On June 27, 2017, the Public Employment Relations Board ruled that after impasse is declared a party can only proceed to factfinding once. In the City of Watsonville, the City and its employee unions met in 2015 to negotiate successor agreements. The following timeline illustrates the events that unfolded during the negotiations:
- June 1, 2015 – Employees declare impasse but City and Employees continue to negotiate;
- June 9, 2015 – Mediator appointed;
- August 5, 2015 – Employees request factfinding regarding the successor agreement with the City;
- August 12, 2015 – Employees withdraw factfinding request.
The parties continued to negotiate until June 29, 2016 when the Employees again declared impasse. The City did not impose its last best and final offer. On July 7, 2016, almost a year after their initial request, Employees again requested factfinding regarding the successor agreement with the City. The City objected to the request since the Employees had already requested factfinding regarding the same issue and withdrew their request.
PERB ruled that the second factfinding request was untimely under the MMBA’s specific timelines. However, PERB pointed out that by creating “definite time limits for the availability and initiation of the factfinding process, the Legislature clearly intended that factfinding would begin relatively soon after a dispute had reached impasse.” (City of Redondo Beach (2014) PERB No. Ad-409 M.)
Under the EERA, (the collective bargaining statutes applying to most local educational agencies) if the mediator is unable to effect settlement within 15 days after appointment, and the mediator declares that factfinding is appropriate, either party may request factfinding. (Cal. Govt. Code § 3548.1(a).)
While it is unclear if PERB would reach a similar result under the EERA, City of Watsonville provides some valuable insight. Specifically, PERB noted that bargaining is only completed when agreement is reached or impasse procedures are concluded. In City of Watsonville, neither had taken place. Therefore, the parties were still engaged in the same bargaining process from the first bargaining session in 2015 to the Employee’s second factfinding request in July 2016. As such, factfinding could only be requested once.
During any bargaining, it is important to keep in mind that bargaining is not concluded until an agreement is reached or impasse is concluded. It is also worth noting that City did not impose their last best and final offer and instead continued to negotiate in good faith. Continuing to bargain obviously increases the opportunities for an agreement, despite the impasse request.
Those wanting to learn more about bargaining best practices, mediation and factifinding may attend our bargaining workshop, From Principles to Practice: Effective Collective Bargaining to Useable Agreements on October 17, 2017. For more information, please click HERE.
Author: Colby Mills, Attorney at Law
On August 14, 2017, the California Superintendent of Public Instruction released “The California Dyslexia Guidelines,” as required by Assembly Bill 1369 (2015) and California Education Code Sections 56334 and 56335.
The California Dyslexia Guidelines (which can be found by clicking the associated link) are intended “to assist regular education teachers, special education teachers, and parents in identifying, assessing, and supporting students with dyslexia.” The Guidelines “draw on both current research and the collective professional wisdom and experience of the members of the Dyslexia Guidelines Work Group, which met in a series of seven meetings from April 2016 through March 2017.”
The Guidelines state that dyslexia may “be understood as one type of a specific learning disability,” and is “characterized by difficulties with accurate and/or fluent word recognition and by poor spelling and decoding abilities.”
The Guidelines address:
- Screening and assessment for dyslexia;
- Assessment tools;
- Special Education and 504 plans;
- Current understanding of the neuroscience behind dyslexia;
- Dyslexia’s nature as a language–learning disability;
- Symptoms, strengths, weaknesses, and socio-emotional factors of dyslexia;
- Dyslexia and English-language learners;
- Preparation of and for Educators;
- Effective approaches and strategies for teaching students with dyslexia;
- Assistive technology and dyslexia; and
- Information for parents and guardians.
It is important to note that the guidelines are not binding on local educational agencies or other entities. However, the guidelines can help assist educational professionals in serving students with dyslexia.
The Dyslexia Guidelines Work Group webpage (http://www.cde.ca.gov/sp/se/ac/dyslexia.asp) states that the “the document is exemplary, and compliance with it is not mandatory” “[e]xcept for the statutes, regulations, and court decisions” the Guidelines reference.
Superior Court Upholds County Board of Education’s Discretion and Authority to Conditionally Approve Charter Petition on Appeal
Girard, Edwards, Stevens & Tucker LLP successfully defended the Orange County Board of Education’s discretion and authority to conditionally approve the Excellence Performance Innovation Citizenship Charter School (“EPIC”) petition on appeal, and to determine for itself whether EPIC had satisfied those conditions.
The Anaheim Elementary School District and Anaheim Union High School District sued in December 2016 to void the County Board’s approval of EPIC’s charter petition or to compel the County Board to revoke the petition. The Anaheim Districts argued that the County Board abused its discretion by conditionally approving the EPIC petition in November 2015 despite Orange County Department of Education Staff’s recommended denial. In the alternative, they argued that EPIC had not satisfied the conditions of its approval and that the County Board should be forced to revoke EPIC’s petition.
The Superior Court found that the County Board did not abuse its discretion when it conditionally approved EPIC’s charter petition and later determined that EPIC had satisfied those conditions. The Court showed great deference to the County Board’s decision-making and its ruling contains a number of important conclusions and implications:
(1) the Charter Schools Act allows a board to conditionally approve a charter petition if the board believes a petition has some deficiencies, but those deficiencies can be remedied;
(2) a board is not bound to follow a report and recommendation from its staff;
(3) the validity of charter petition signatures may be judged as of the time a charter petition is filed with a potential authorizer; and
(4) if a board imposes subjective conditions on an approved charter petition, the board retains discretion to interpret those conditions and decide whether they have been satisfied.
EPIC submitted a charter petition for a K-12 online, independent study program to the Anaheim Elementary School District in May 2015. The District denied the petition and EPIC appealed to the County Board. On appeal, both the Anaheim Elementary School District and the Anaheim Union High School District (in which EPIC would also operate) encouraged the County Board to deny the appeal.
Orange County Department of Education Staff reviewed the EPIC appeal and recommended that the County Board deny the appeal, citing Staff concerns over EPIC’s educational program, the signatures submitted with the petition, the petitioners’ ability to successfully implement the program, and the petition’s descriptions of various elements of the program.
The County Board believed that Staff’s concerns were not insurmountable and, in November 2015, the County Board voted to approve the EPIC petition, conditioned on the petitioners addressing the areas of concern noted in the Staff’s recommendation for denial and executing an MOU within four months.
One such area was petition signatures: had the EPIC petition been submitted to the Anaheim Elementary School District in May 2015 with a sufficient number of signatures of “meaningfully interested” parents? County Staff and the petitioners subsequently pursued different strategies to validate the signatures. County Staff attempted to contact individuals who had signed the petition months earlier to verify their “meaningful interest.” EPIC checked original signatures against voter registration cards to verify identities and pointed to the fact that the signature pages contained affirmations of “meaningful interest.” After extended discussion and Staff updates at multiple meetings, the County Board was satisfied that the EPIC petition had been submitted with a sufficient number of genuine signatures, and concluded that EPIC had satisfied the conditions of its approval based in part on Staff’s feedback that EPIC had addressed concerns through meetings and the adoption of an implementation plan. The County Board approved an MOU with EPIC in March 2016 and EPIC began serving students in the Fall of 2016.
When considering a charter petition, the Charter Schools Act (“CSA”) gives significant discretion to a school district governing board or county board of education. A court will generally defer to a board’s decision to approve or deny a charter petition if:
(1) the board explained what it was doing when it took action,
(2) the board made or adopted factual findings in support of its decision,
(3) there was some evidence before the board to support its decision, and
(4) the board did not misinterpret or misapply the law in making its decision.
Most of the six permissible reasons to deny a charter petition call for subjective judgments (see Educ. Code §§ 47605(b), 47607(b)), and if the four criteria above are satisfied, a court should not overrule a board’s decisions even if the court or another public agency has a different opinion on whether a petition could or should have been denied.
Factual findings often come from a staff recommendation presented to the board. If a board agrees, it can adopt the staff report’s proposed findings. However, as this ruling shows, ultimate authority always rests with the board and a board may disagree with staff’s findings or recommendation. A board may always make and adopt its own findings during a public meeting, or partially adopt staff’s proposed findings with modification from the board.
If you have any questions regarding this case or charter petition review generally, please contact Eric Stevens of Girard, Edwards, Stevens & Tucker LLP at (916) 706 – 1255.
Ninth Circuit Held that District Did Not Predetermine Student’s Placement at a Private School or Deny Student FAPE by Failing to Include Private School Representative in IEP Meeting
The parent of a 10 year old student with autism filed a due process complaint alleging, among other things, that the school district denied her child a free appropriate public education (FAPE) by (1) not considering her feedback or preferred placements during the IEP decision-making process, and (2) failing to include a private school representative in the IEP team meeting. On appeal, the Ninth Circuit ruled in the District’s favor, finding that it did not deny Student a FAPE. (R.A., Hagit Habash, et al. v. West Contra Costa Unified School District, 70 IDELR 88, (9th Cir. 2017).)
It is a violation of IDEA if a local educational agency predetermines placement for a student before the IEP is developed or steers the IEP to the predetermined placement. K.D. ex rel. C.L. v. Dept. of Educ. Hawaii, 665 F.3d 1110, 1123 (9th Cir. 2011). LEAs may not present certain placements as a “take it or leave it” option to parents. (See e.g., JG v. Douglas Cty. Sch. District, 552 F.3d 786, 801 (9th Cir. 2008).) Here, the court determined that the District did not predetermine Student’s placement in that the District had researched and discussed multiple placement options during two IEP meetings at which the Parents actively participated before determining that a private school was specifically tailored to the Student’s needs.
Private School Representation at IEP Team Meeting
IDEA requires that when developing IEPs for private school placements, LEAs are required to ensure that a representative of the private school attends an IEP meeting before the LEA places or refers the child to the private school. If the representative cannot attend, the LEA must use other methods to ensure participation by the private school including via telephone. (34 C.F.R. § 300.325.)
Here, the court also analyzed Parents’ argument that the district denied Student a FAPE by failing to ensure that a representative of its proposed private school placement attended the IEP meeting. The court determined this was a procedural violation of IDEA. However, the court focused its analysis on whether this violation affected Parents’ active participation in the IEP process, rather than an automatic denial of FAPE. Interactions that occurred after the IEP team meeting showed that the District arranged for Parents to meet with private school personnel so that any questions and concerns could be addressed, Parents visited the school and were advised by the school on what next steps would be. Parents advanced no argument as to how absence of a private school representative directly affected their rights. As a result, the court held that this procedural violation did not rise to the level of a denial of FAPE.
LEAs always need to be willing to consider other alternatives and participate in IEP meetings with an open mind. The difference between “preparation” and “predetermination” is an LEA’s willingness to actively listen to the parents’ concerns and input. It is also important to ensure that all IEP team members participate in the discussion and are able to express opinions and recommendations. The fact that an LEA does not ultimately offer the placement that parents prefer, or even that some IEP team members prefer, does not mean that an LEA has predetermined the student’s placement. Also, LEAs need to take steps to ensure participation (preferably in person, but if not, by telephone) of private school personnel in IEP meetings at which consideration of private placement for a child will occur.
Assembly Bill 119 Mandates Union Access to New Employee Orientation and Other Information for Public Employers
On June 27, 2017, Governor Brown signed Assembly Bill 119 into law, effective July 1, 2017.
AB 119 requires public employers (including school districts, transit agencies, and county offices of education) to provide union representatives “mandatory access” to any new employee orientation, regardless of whether that orientation is conducted in person, online, or another medium. The bill defines new employee orientation as “the onboarding process of a newly hired public employee . . . in which employees are advised of their employment status, rights, benefits, duties and responsibilities, or any other employment-related matters.”
The bill states that upon request by either the employer or the union, the parties must “negotiate regarding the structure, time, and manner” of the union’s access to the new employee orientation. If the parties cannot reach an agreement, the matter will be subject to compulsory interest arbitration, which would result in an arbitrator’s decision defining the access to be granted. The parties must equally share the cost of arbitration.
Either party may request negotiation of the issue, and the parties are compelled to open negotiations even if a current collective bargaining agreement or memorandum of understanding exists. However, the parties may choose to negotiate a “side letter or similar agreement” in lieu of reopening a current CBA or MOU.
Furthermore, AB 119 compels public employers to provide a union with any new employee’s job and contact information “within 30 days of the date of hire or by the first pay period of the month following hire.” This includes the newly hired employee’s:
- Job title
- Work location
- Work phone number
- Personal email address on file with the employer,
- Home address
- Home phone number
- Cell phone number
Moreover, AB 119 requires a public employer to provide the union with the above information for all employees in the bargaining unit every 120 days “unless more frequent or more detailed lists are required by an agreement.”
On June 30, 2017, the U.S. Department of Education issued new regulations aligning the IDEA to the Every Student Succeeds Act of 2015. The new regulations removed terminology from the No Child Left Behind Act. The new regulations are not expected to significantly alter special education practices, but are noteworthy in a few important areas.
The updated rules mostly implement technical corrections to a few areas in the IDEA. Essentially, the new regulations replace terminology from No Child Left Behind with language more closely aligned to the Every Student Succeeds Act. Specifically:
- Regular High School Diploma has been amended to exclude diplomas based on alternate academic achievement standards and a general equivalency diploma, a certificate of completion or attendance or another credential.
- Alternate Assessments have been changed to reflect an emphasis on students with significant cognitive disabilities taking assessments based on alternate academic achievement standards. IEP teams should make the difference in assessments for those based on grade-level achievement standards compared to those based on alternate academic achievement standards.
- Technical Assistance to Schools has been edited to reflect promises of support and improvement activities for consistent underperformance of students with disabilities.
The amendments can be found with the link below.
Untimely Evaluation Leads to Independent Educational Evaluation at School's Expense and Attorney's Fees
The Office of Administrative Hearings (“OAH”) ruled that a student was entitled to an independent educational evaluation at her school district’s expense because the district took too long to conduct its evaluation and translate the results for student and her parent. (Riverside Unified School District, 117 LRP 21567.) This partial success also entitled the student to an award of attorney’s fees.
Student was a preschooler who had recently transitioned from her local regional center to District’s preschool program. District created an assessment plan and obtained Parent’s consent on December 5, 2015. The plan called for psychoeducational and speech language assessments. The psychoeducational assessment was completed promptly, and District attempted to hold an IEP meeting on January 11, 2016 to review the results with Parent. However, Parent asked for a delay until the speech language assessment was completed. The speech language assessor completed testing in late February 2016, but then continued to conduct extra assessments in March because no IEP meeting had been scheduled. In mid-March, Parent asked for the speech language report to be translated into Spanish. The report was translated in April and an IEP meeting finally occurred on June 3, 2016.
Student requested an independent educational evaluation (“IEE”) at District’s expense, but District refused and filed a request for due process hearing to settle the matter.
District argued that it was not required to pay for an IEE because District’s psychoeducational and speech language assessments were appropriately administered by qualified assessors and met all statutory requirements. Student argued that she was entitled to an IEE at District’s expense because she had not been assessed in all areas of suspected disability, the assessors failed to follow test protocols and observe Student outside of the testing environment, and the assessments were not timely.
While the Assessments Were Competently Administered, the Process Took Too Long
OAH concluded that District’s assessors were well qualified, the assessments were appropriately administered, and Student had not properly raised the issue of failure to assess in all areas of suspected disability. However, OAH partially agreed with Student, finding that the speech language assessment had not been timely. From parent’s consent to the assessments to the IEP team meeting to discuss the results, no more than 60 days should have elapsed. Instead, over 150 days passed. OAH ordered District to pay for a speech language IEE and declared Student a partially prevailing party, entitling Student to an award of attorney’s fees.
Strict Timelines Apply to Assessments, or an Independent Educational Evaluation May Be Ordered (Along With Attorney’s Fees)
Local educational agencies (“LEA’s”) must follow strict timelines to assess students for suspected disabilities. If an LEA decides to assess a student, it must present a written assessment plan to a parent or guardian within 15 calendar days of the date of receipt of the referral, unless the parent or guardian agrees in writing to an extension. (Ed. Code §§ 56043(a), 56321(a).) However, calendar days between the pupil’s regular school sessions or terms (like semester breaks) or calendar days of school vacation in excess of five schooldays (like winter or spring break) are not counted when calculating this deadline. (Ed. Code §§ 56043(a), 56321(a).) The assessment plan must explain, in language easily understood by a lay person, the types of assessments to be conducted. (Ed. Code, § 56321 (b).) The parent then has at least 15 days to consent in writing to the proposed assessment. (Ed. Code, §§ 56043(b), 56321 (c)(4).)
Once a parent consents to the assessment, a determination of eligibility and an IEP team meeting must occur within 60 days of receiving parental consent. (See 20 U.S.C. § 1414(a)(1)(C); Ed. Code, § 56302.1(a).) An assessor must produce a written report of each assessment that includes whether the student may need special education and related services and the basis for making that determination, and the report should be addressed at the IEP meeting. (Ed. Code, §§ 56327 (a), (b).)
A student may disagree with an LEA’s assessment and request one independent educational evaluation (“IEE”). (34 C.F.R. §§ 300.502(b)(1), (b)(2); Ed. Code § 56329(b).) An IEE is an assessment conducted by a qualified third-party examiner who is not employed by the LEA. (34 C.F.R. § 300.502(a)(3)(i).) If a student requests an IEE, the LEA must, without unnecessary delay, either provide an IEE at public expense or file a request for due process hearing to show that the LEAs assessment is appropriate. (34 C.F.R. § 300.502(b)(2); Ed. Code, § 56329(c).)
This case shows that it is not enough for an LEA’s assessment to be substantively appropriate. The LEA must also comply with related procedural requirements like the strict timelines found in the Education Code. Here, had the speech language assessment been timely, OAH would have denied all of Student’s claims. Instead, the Student partially prevailed, requiring District to pay for Student’s IEE and entitling Student to a partial award of attorney’s fees – a costly result that probably could have been avoided if District had stayed on top of scheduling assessments and IEP meetings.
The U.S. District Court of Northern California upheld the expulsion of a student and dismissed the student’s Section 504 disability discrimination claim where the LEA followed IDEA’s procedures during the manifestation determination review of a high schooler who received Section 504 services for ADHD. (J.M. v. Liberty Union High School District, 70 IDELR 4 (N.D. Cal. 2017).
The student was 16 years old and diagnosed with Attention Deficit Hyperactivity Disorder (“ADHD”). Based on an evaluation, the District found the student eligible for a Section 504 plan because of his ADHD. The Section 504 Plan described the impact of the disability on his education was poor attention and distractibility, poor organization skills, and frequent failure to complete and turn in assignments and homework. The Plan required the student to receive various accommodations including class notes, preferential classroom seating, and enrollment in a tutorial support class. One evening outside of school, the student had a verbal altercation with another student while playing an online video game. The next day, the student was involved in a threatening confrontation with that same student on school grounds. The District suspended the student and moved to expel him.
Under Section 504, a district must evaluate a student with a disability before imposing a significant change of placement, including disciplinary removals. Here, the court noted that when the student was involved in a “threatening confrontation” with a classmate, the district held a manifestation determination review in which it concluded that the student’s misconduct did not have “a direct or substantial relationship” to his disability. As a result, the district expelled the student for the rest of the school year.
Alleging that the district applied the incorrect legal standard during the manifestation determination review, the student claimed that the district should have assessed whether his conduct merely “bore a relationship” to his ADHD. The court rejected this argument. It pointed out that while Section 504 does not include guidelines for manifestation determination reviews, a district’s “compliance with the procedural safeguards of the IDEA is one means of meeting [Section 504’s] evaluation requirement.” In this case, the evidence showed that the district appropriately followed its evaluation procedures, which mirrored the procedural safeguards outlined in the IDEA regulations, by assessing whether the student’s misconduct “had a direct and substantial relationship” to his disability.
What This Means For You: The term “manifestation determination” does not appear in the regulatory language of Section 504. Instead, Section 504 requires that a local educational agency (“LEA”) conduct a reevaluation before making any “significant change in placement.” 34 CFR § 104.35(a). The Office of Civil Rights (OCR) interprets Section 504 as requiring a manifestation determination review in connection with disciplinary actions that constitute a significant change in placement. Unlike IDEA, the Section 504 regulations do not specifically establish procedural safeguards that must be provided when a district disciplines a student with a disability. Rather, Section 504 requires LEAs to establish such procedural safeguards. LEAs that comply with the procedural safeguards already required under the IDEA for disciplining students eligible under Section 504 will ensure fulfillment of their obligations established under Section 504.
On June 1, 2017, the U.S. Department of Education released a new website regarding the Individuals with Disabilities Education Act (IDEA), located at https://sites.ed.gov/idea/.
On the new website the Department of Education expands the available information and resources in a searchable format. The search function will now prioritize results to bring the most recent statutes and regulations to the forefront, while still providing access to all relevant policies, “Dear Colleague” letters, memorandums, and FAQ documents.
Furthermore, the new website includes categorical breakdowns of resources for specific audiences, including resource pages for educators, service providers, parents and families, and grant seekers/recipients. The website also includes links to the Office of Special Education Programs (OSEP), Office of Special Education Rehabilitative Services (OSERS), and state IDEA contacts.
Finally, the updated website includes an expanded “topic areas” page which brings together resources regarding 29 different issues, such as Child Find, Bullying, Least Restrictive Environment, and IEPs.
For those who became comfortable and familiar with the old IDEA .ed.gov website, the Department of Education will continue (but not update) the legacy page as it continues to refine the new website.
In 2012, studies of student cell phone ownership and use revealed that approximately 78% of all Americans aged 12–17 years had a mobile phone and 37% had a smart phone. These numbers have no doubt risen in the 5 years since this particular study was conducted. Considering this almost universal usage, information contained on a student’s cell phone is often sought in investigations of student misconduct. In fact, the California Legislature is currently considering Assembly Bill 165 which, if approved, would significantly broaden a local educational agencies ability to access a student’s cell phone if suspected of a suspendable or expellable offense. However, school administrators should carefully consider the potential privacy implications before searching a student’s cell phone.
- Cell phones now contain so much more than simple communication information.
Not only are cell phones used to communicate via text, voice or video with others, but most contain a plethora of additional information. Most cell phones contain, among other things, web browser history, access to personal photos and videos, and access to social media sites. Searching a cell phone thus may reveal private information that is not necessarily germane to the purpose of the search.
- Governing boards have the authority to regulate cell phone possession and use. Know your policy.
California Education Code section 48901.5 provides school governing boards with the authority to “regulate the possession or use of any electronic signaling device.” Most, if not all, school governing boards have policies and procedures regarding a student’s possession, use, and possible search of a cell phone. Therefore, it is imperative prior to determining whether a search is necessary that all school personnel know and understand their school’s policies related to cell phones.
- All searches of student property must be 1) justified from the beginning and 2) “reasonably related [in scope] to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.”
In New Jersey v. T.L.O, the United States Supreme Court provided the above standards which can be used to determine whether a search of a student’s cell phone is legally defensible. (New Jersey v. T.L.O , (1985) 469 U.S. 325.) The Court went on to state that a search is “justified from the beginning” when a school official has “reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school.” (Id.) The official must be able to put this suspicion into words as “curiosity, rumor or hunch” is insufficient to justify a search. Simply being disruptive, (In re William G., (1985) 40 Cal. 3d 550), invocating privacy rights or attempting to hide private information are also insufficient. (In re Lisa G., (2004) 125 Cal. App. 4th 801.)
Whether or not a search is “reasonably related [in scope] to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction” is largely dependent on the context of the search. For example, searching a student’s social media history for using a cell phone during class may not be necessary in light of the violation. However, searching a student’s text messages maybe be justified if the student is accused of selling drugs on campus to other students. Moreover, the search’s scope must be similarly limited based on the context and objectives of the search. Taking the drug sale example, a search of text messages to arrange the sale may be justified, but searching the phone’s photo album may not be.
Therefore, before determining whether a cell phone search is justified, it is recommended that:
- School governing boards update and revise relevant policies;
- School officials are knowledgeable regarding those policies and their application;
- The school officials considering a search have a “reasonable suspicion” that a law or school policy has been violated and the cell phone is an essential element of the commission of that violation;
- The school official should be able to articulate the “reasonable suspicion” and that it is based on more than a rumor or a hunch;
- The school official determine whether or not the alleged violation involves the student’s cell phone;
- The search is limited in scope to the focus of the violation to reduce the risk of liability for invasion of a student’s privacy; and
- Any search should be done with more than one official present so to corroborate that the search was appropriately limited and done so in accordance with school policy.