Office of Administrative Hearings Rules in District's Favor on Reasonable Restrictions to Nonpublic Agency Aide Attendance at IEP Meetings and Communication with Parents
Author: Michael Tucker, Attorney at Law
On May 15, 2020, the Office of Administrative Hearings (OAH) ruled that failure to include a nonpublic agency aide in a student’s IEP meeting did not significantly impede the parent’s participation. OAH also ruled that setting reasonable restrictions on communication with the aide, while still providing meaningful contact, did not significantly impede the parent’s participation in decision making. (Parent on Behalf of Student v. Mountain View Unified School District, Case No. 2019100681.)
Student qualified for special education under the categories of autism and speech and language impairment. Student’s IEP included a behavior technician aide provided by a nonpublic agency. Student’s parent requested that the aide be present at an IEP meeting. While the aide did not attend the meeting in question, the aide’s two clinical supervisors were in attendance.
The Local Educational Agency (LEA) also directed all communication related to the aide through the Student’s special education teacher. Instead, Student’s parent sought raw data from daily behavior logs, contemporaneous communication with the aide and other detailed information.
Student filed a Due Process Complaint alleging that the LEA’s decision to deny parent’s request that the Student’s aide be present at an IEP meeting denied Student a Free Appropriate Public Education (FAPE). Specifically, Student claimed that he was denied meaningful participation in the IEP meeting because the aide’s attendance was essential to Student’s participation in the meeting.
Student also alleged that the LEA denied Student FAPE by preventing free communication between Student’s parent and the nonpublic agency aide. Particularly, Student claimed that the LEA’s restrictions on communication received from the aide prevented the parent from meaningfully participating in the decision making process.
After a hearing, OAH ruled in favor of the LEA on both issues.
A student is denied a FAPE if procedural inadequacies significantly impede the parent’s opportunity to participate in the decision making process. (20 U.S.C. § 1415(f)(3)(E)(ii)(I)-(III).) The parents of a child with a disability must be afforded an opportunity to participate in IEP meetings. (34 C.F.R. § 300.501(b).) “A parent has meaningfully participated in the development of an IEP when he or she is informed of the child’s problems, attends the IEP team meeting, expresses disagreement regarding the IEP team’s conclusions, and requests revisions in the IEP.” (N.L. v. Knox County Schools (6th Cir. 2003) 315 F.3d 688, 693-5.) In this case, Student alleged that he was denied meaningful participation because the LEA failed to include the aide as an essential IEP team member. Essential IEP members are often considered to include the following:
- the student’s parents;
- a general education teacher;
- the student’s special education teacher;
- LEA representative;
- an individual qualified to interpret evaluations; and
- at the discretion of the parent or the LEA, other individuals that have knowledge or special expertise regarding the child, including related services personnel as appropriate.
(20 U.S.C. § 1414(d)(1)(B)(i)(vi); 34 C.F.R. § 300.321.)
While Student argued that the aide possessed “knowledge or special expertise regarding the child”, OAH found that “a person with knowledge or special experience…is not an essential member of the IEP team, unless they are also qualified to interpret evaluations, under 34 Code of Federal Regulations part 300.321(a)(5).” Therefore, OAH found that the aide was nonessential because the aide was not qualified to interpret evaluations and exclusion from the IEP meeting was not a violation of FAPE.
OAH also found that the LEA’s restrictions on parent’s communication with the aide were reasonable. LEAs are generally permitted to place reasonable restrictions between providers and a parent to minimize “unproductive communication.” (L.F. v. Lake Washington School District #414 (2020) 947 F.3d 621.) Here, OAH found that reasonably restricting communication while still providing detailed “daily, weekly, and monthly communications” with the parent did not amount to a FAPE violation.
While LEAs should carefully consider parent’s requests, parents are not entitled to unfettered access to school staff. Here, OAH agreed with the reasonable restrictions placed on the parent’s requests by the LEA. Specifically, OAH pointed out that not every parent request to invite certain school staff to an IEP is a required attendee as an essential IEP member. While OAH did not make much of the fact that the aide’s supervisors were at the IEP meeting, it’s worth noting that their presence may have made the aide’s input redundant. OAH also found, through a recording of the IEP meeting, that the parent was able to fully participate despite the aide’s absence.
Moreover, restrictions can be placed on a parent’s request for communication so long as the LEA’s restrictions are reasonable considering the amount of communication offered to the parent. Specifically, OAH agreed that contemporaneous communication as requested by the parents was not required considering the LEA’s already robust communication offerings.
LEAs are encouraged to carefully consider a parent’s request with this guidance in mind.
Author: Omer A. Khan, Attorney at Law
On April 28, 2020, the U.S. District Court in the Eastern District of California granted a parent’s motion for attorney’s fees against a Local Educational Agency (LEA) on top of fees it already owed, as result of the LEA’s failure to timely pay the amount owed. (Quatro v. Tehachapi Unified School District (2020) 120 LRP 10671.) on top of fees it already owed, as result of the LEA’s failure to timely pay the amount owed. (Quatro v. Tehachapi Unified School District (2020) 120 LRP 10671.) One month prior, the court had ruled in favor of the parent in a motion to enforce a judgment for the amount of $177,144 that the LEA had failed to pay the parent within the prescribed statutory period. This motion resulted in an additional $10,142 of fees imposed on the LEA.
Plaintiff was the mother of a kindergartner with orthopedic impairments. The parent initially won a ruling in January 2016 for a denial of a free appropriate public education (FAPE); the order granted Student 12 hours of services by a Board Certified Behavior Analyst. The LEA appealed, and in May 2017, the District Court issued a judgment in favor of the parents, awarded $135,876.75 in attorneys’ fees and $2,805.00 in costs. This decision was upheld in November 2018 by the Court of Appeals.
The LEA was required to pay the amount due by June 30, 2019; it failed to do so.
The parent filed a petition in District Court to enforce the judgment in February 2020 to collect the amount owed. The LEA contended that the delay was reasonable; there was a lack of funds available to pay the full amount of $138,681.75 to the parent and the matter would be addressed at the March 10, 2020 board meeting.
The District Court rejected this contention. The Court noted that, even by the March 18, 2020 Board meeting, the Board was “merely told the payments were still unresolved.” The Court questioned whether the LEA had addressed the payment at issue and its dedication to comply with its legal obligation under Government Code § 970.5 to pay the judgments owed. The Court ordered the LEA to pay the amount owed by June 30, 2020, plus interest for every day the LEA was late. At this point, the LEA owed the parent $177,144 in total fees.
Finally, in April 2020, the parent filed a petition to recover attorneys fees for this latest round of litigation. The District Court agreed that the parent was entitled to an award for fees on her motion for enforcement of judgment; this holding added an additional $10,142 to the amount owed by the LEA, resulting in a grand total of $187,286
The Individuals with Disabilities Education Act (IDEA) includes a fee-shifting provision that allows a prevailing parent to recover reasonable attorney’s fees, subject to certain limitations. In addition, courts have allowed parents to recover attorney’s fees for their counsel’s work on claims brought under this fee-shifting provision. In other words, “fees on fees” may be available where attorney continue to work on the case after a court’s award of attorney’s fees. Moreover, Government Code § 970.5 obligates LEAs to pay judgments owed within the fiscal year the judgment becomes final. The statute imposes interest payments if the LEA is late in satisfying these debts. As a result, LEAs must demonstrate urgency in arranging payments of such judgments. This case should serve as a cautionary tale: the initial amount owed by the LEA was $138,681.75, but due to the delay the Court imposed an additional $48,604.25 in costs. If the LEA absolutely cannot make the payments within the fiscal year, it should demonstrate that it is taking the judgment seriously using proper documentation.
Author: Anisa Pillai, Attorney at Law
On May 6, 2020, the U.S. District Court, Eastern District of California granted a student’s request for a 60-day extension of time to serve a peer harassment lawsuit on a school district.
On February 20, 2020, the student filed an initial complaint against the district alleging that the student had faced bullying and harassment by other students based upon the student’s disability. Thereafter, the student attempted on multiple occasions to effectuate service upon the district via personal delivery using the services of a registered process server. However, on each occasion, the district’s offices were closed with no one available to accept service due to the COVID-19 related school closures.
On May 4, 2020, the student filed a motion for a 60-day extension of time to serve the district due to the student’s inability to reach the district. Normally, a lawsuit must be served on a defendant within ninety days – the student had until May 7, 2020 to serve the school district.
The court granted the student’s request for an extension of time to serve the lawsuit on the district. The court found that the student had good cause for the failure to effect timely service on the district due to the school closures caused by COVID-19. Specifically, the court noted that the student had made multiple attempts to serve the district but, on each occasion, the building was vacant due to the school closures. The court also pointed out that the student had continued to monitor the status of the district’s operations and the district’s website informed the public that the district would remain closed through May 15, 2020. Furthermore, the court pointed out that the student had attempted to call the district’s main line and was unable to leave a message because the voicemail box was full. Based on the totality of the circumstances, the court found that the student had good cause for a 60-day extension to serve the district.
The takeaway from this case is that local educational agencies must consider developing a contingency plan during extended school closures, including summer breaks, for how to route voicemail messages and accept important documents. Furthermore, the U.S. Department of Education has not waived special education due process timelines during this global pandemic – these timelines continue to run even during school closures. As such, the failure to assign someone to review voice messages and receive documents during school closures may unnecessarily expose local educational agencies to liability and additional litigation.
Electronically Sending Personally Identifiable Information to Unsecured Email Address May Violate FERPA
Author: Michael Tucker, Attorney at Law
The band director at a Kentucky school district (“District”) sent an email to a student’s parent regarding the student’s removal from band. The email was sent to the parent’s work email address, not the personal address that was provided to the District when the parents initially completed the student’s registration.
School closures due to the COVID-19 pandemic have forced local educational agencies (“LEA”) to rely more heavily on electronic communication. However, FERPA and other privacy provisions still apply to communication of personally identifiable information.
IDEA regulations also explicitly give LEAs the option to send notices required by IDEA to parents via email as long as the parent “elects to receive notices … by an electronic mail communication [and] the [district] makes that option available.” (34 CFR §300.505.) Nonetheless, given the potential ramifications for not sending notice, LEAs will need to consider how to document the fact that notice was sent and that parents have elected to receive notices via a particular email address. For many families, email should be sufficient provided that the parent has elected to receive notices via email. However, for other families, who may not regularly use email or have access to email, mailing a hard copy may be necessary.
As such, LEAs should take care to confirm email addresses with parents to ensure: 1) that the email is secure and private; and 2) that the parent consents to use that email address. It may be convenient to immediately reply to an email received from a parent from an email address that is different than the email provided by the parent as the appropriate means of contact. However, as this guidance points out, an LEA should still confirm consent to receive sensitive information, including notices, at that address prior to sending to ensure that private information remains confidential.
CDE and HHS Release Guidance on Distance Learning, School Meals, Child Care, and Student Supervision
Author: Eric Stevens
The California Department of Education released guidance on March 17 for local educational agencies (“LEAs”) regarding educating students through distance learning and providing school meals to students during school closures due to COVID-19. Health and Human Services, in consultation with CDE, simultaneously released guidance on child care and providing student supervision during the current public health emergency. All of this guidance is available on CDE’s website. The guidance contains numerous links to other resources to support LEAs.
The guidance is issued in response to Executive Order N-26-20 which provides that even if LEAs close campuses due to COVID-19, the LEAs will continue to receive funding for those days so that they may:
- Continue delivering high-quality educational opportunities to students to the extent feasible through, among other options, distance learning and/or independent study;
- Provide school meals in non-congregate settings through the Summer Food Service Program and Seamless Summer Option, consistent with the requirements of the California Department of Education and U.S. Department of Agriculture;
- Arrange for, to the extent practicable, supervision for students during ordinary school hours; and
- Continue to pay employees.
Distance learning includes any instruction in which a student and teacher are in different physical locations. This may include any combination of video or audio instruction, communication by phone or computer, print materials incorporating assignments that are reviewed by the teacher, and check-in time with the supervising teacher.
LEAs “should immediately begin developing a plan for distance learning for their students and providing training and professional development for their teachers to implement the adopted distance learning strategy as effectively as possible.” CDE suggests key elements that a distance learning plan might cover and encourages LEAs to consider what is feasible in the short-term and what may be possible if a longer-term closure (more than two weeks) becomes necessary.
An LEA will need to assess its ability to deliver instruction online, through the delivery of paper materials, and in-person in light of the availability of devices and high-speed internet in the community and the LEA’s ability to provide devices and internet access to students in need. CDE’s guidance stresses that “we cannot lose track of our most disadvantaged students” and that LEAs need to ensure equitable access to curriculum and, if online learning is used, devices and internet access.
CDE provides a continuum of delivery strategies from a purely online approach to in-person instruction:
- Teacher interaction and assistance through on-line learning platforms.
- Online curriculum for students to work on at home.
- Online curriculum in a computer lab or classroom, consistent with social distancing guidelines.
- Paper packets of instruction materials for students to work on at home.
- In-person instruction, consistent with social distancing guidelines.
CDE highlights different school districts and charter schools as examples of some of these strategies in practice.
LEAs should also consider ways to re-purpose and redirect resources to support distance learning, especially resources that may not be used to capacity during campus closures like student transportation and transportation staff. CDE points out that vehicles and transportation staff can be redirected to distribute meals to students most in need, instructional packets, and wireless equipment and devices.
Distance Learning, Special Education, and English Learners
CDE acknowledges that, at this time, the federal government has not waived federal requirements under the Individuals with Disabilities Education Act (“IDEA”). Accordingly, federally mandated timelines continue to apply. CDE is convening a workgroup of practitioners and experts in special education to assess various models for effectively serving students with disabilities in a distance learning environment and provide additional guidance to LEAs.
The unique learning needs of English learners should be considered and addressed in a distance learning plan. When campuses reopen, an English learner’s progress should be evaluated to determine whether the student needs additional services and supports to account for how distance learning may have impacted the student’s progress toward proficiency.
Federal child nutrition meal programs have provided flexibility to CDE and LEAs during COVID-19 campus closures.
For LEAs that already have approval to operate the National School Lunch Program Seamless Summer Option (“SSO”) or the Summer Food Service Program (“SFSP”), CDE can provide authority to offer non-congregate meals under SSO or SFSP during a COVID-19 campus closure. Requests may be submitted to SNPINFO@cde.ca.gov and CDE’s guidance identifies the information to include in such a request. LEAs can also request permission to offer shelf-stable meals for multiple days and USDA is expected to provide additional guidance soon on applicable heightened monitoring requirements.
LEAs are encouraged to consider various means of delivering meals, including:
- Distributing meals using a school food truck.
- Sending a box or bag meal(s) home with students for multiple days.
- Keeping some school sites open to allow students to receive a meal.
- Partnering with local libraries that remain open to serve meals.
- Setting up a drive through system in the parking lot to minimize contact. Families can drive through and pick up a meal for all children in the vehicle.
However, CDE notes that it is not permissible to provide meals to children who are not present when meals are distributed.
LEAs should consider multiple communication strategies and use multiple languages to reach families and students with information about the availability of meals, including messaging through community partners.
Child Care and Student Supervision
HHS released broad guidance for families with children during COVID-19 campus closures.
For LEAs specifically, CDE reminds them that Executive Order N-26-20 directs LEAs “to the extent practicable” to arrange for supervision of students during ordinary school hours. CDE states that LEAs should:
- Develop a plan for ensuring that students are supervised during school hours.
- Consider allowing their school sites for use as critical pop-up childcare programs for working families in need of care for their children.
- Partner with their local resource and referral agency to connect families in need of care. The R&R can help link them to available care facilities in their area.
- Inform families that they can call the statewide consumer education hotline at 1-800-KIDS-793 or go to the website at https://rrnetwork.org/ and https://rrnetwork.org/family-services/find-child-care for additional information.
- Provide families with a list of known local programs that remain open for services.
- Collaborate with their Local Planning Council and other local childcare entities to ensure continuity of services to families in need of childcare.
- Work with the regional Community Care Licensing office, which may have a list of facilities that are open, to identify providers that can serve children at this time.
CDE directs LEAs to consider a list of multiple factors when developing a plan for student supervision:
- Family needs.
- Early learning and care programs operating on an LEA’s campus.
- LEA facilities as a community resource.
- Working with community partners.
- Child age.
- Collaborating with other state and local government entities.
- CDC guidance for school closures.
For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.
Emergency Legislation Passed by the State Legislature and Office of Administrative Hearings to Hold Mediations Via Telephone/Videoconference
Author: Heather Edwards
On Monday, March 16, 2020, the California Legislature took unprecedented emergency action and passed Senate Bill 117 to ensure that local educational agencies (“LEAs”) continue to receive funding during the COVID-19 pandemic and provide some flexibility from statutory requirements. The legislation, which takes effect immediately, includes the following:
- Apportionment – For LEAs that comply with the Governor’s Executive Order N-26-20, the period for reporting ADA for apportionment purposes will only include school months from July 1, 2019 to February 29, 2020. The legislature’s intent is that the current health emergency not impact apportionment to ensure employees and contractors are compensated and paid during school closure.
- Funding – Provides $100 million to the California Department of Education to be apportioned based on ADA generated by LEAs that provide a classroom-based educational program between March 4, 2020 and June 30, 2020. The purpose of the funding is to purchase personal protective equipment or pay for supplies and labor related to cleaning school sites. LEAs will receive at least $250 per schoolsite.
- Instructional Days and Minutes – To prevent the loss of funding due to school closures, statutory minimums for instructional days and minutes are deemed to be met during the period of time a school was closed due to COVID-19. District superintendents, county superintendents, and charter school administrators are required to certify in writing to the California Department of Education that school was closed due to COVID-19.
- Charter Schools – Authorizes charter schools to offer independent study or distance learning programs without the need to submit a request to materially revise its charter petition to its chartering authority.
- Assessments – Extends time to assess pupils for English language proficiency by 45 days, unless the California Department of Education determines otherwise. Extends the length of time for the testing window for the California Assessment of Student Performance and Progress (CAASPP) and physical performance tests by the length of time a school is closed due to COVID-19, or until the end of the testing window, whichever comes first.
- Uniform Complaint Procedures – Extends timelines established in the uniform complaint procedures by the length of time a school is closed due to COVID-19.
- Suspension of Certain Special Education Timelines – Suspends only the following state statutory timelines for schools closed due to COVID-19:
- Providing proposed assessment plans within 15 days of referral; and
- Providing parents access/copies of student records (5 business days) and/or sending student records upon a request for another LEA (5 working days).
The suspension of these timelines applies to all LEAs, even if an LEA continues to offer educational opportunities through distance learning, or independent study, or both, during the closure due to COVID-19. In addition, the bill “encourages” LEAs to respond as expeditiously as possible to requests from parents or guardians received during the period of time a school is closed due to COVID–19. Finally, the bill expressly provides that it does not waive any federal requirements imposed under the federal Individual with Disabilities Education Act. (Note: a majority of the timelines in special education are governed by federal law which the state legislature cannot override.)
- Funding for the After School Education and Safety Program – Program grantees that closed schools due to COVID-19 will be credited with the ADA that the grantee would have received if it had been able to operate its entire program during the period of school closure.
- Childcare and Child Development Programs – Attendance and reporting requirements imposed on childcare and development programs are waived subject to additional guidance from the California Department of Education.
Office of Administrative Hearings to Hold Mediations Via Telephone/Videoconference
The Special Education Division of the Office of Administrative Hearings (“OAH”), the agency that provides mediations and hearings for special education disputes between parents and LEAs, will be moving to telephonic/videoconference mediations beginning Thursday, March 19, 2020. Currently the plan is to mediate exclusively through this method until the end of the month. OAH is developing the protocols for these mediations and will post the information required to participate on March 18, 2020, at 1 pm. As of today, due process hearings will go forward as scheduled unless a continuance is granted, or the case is dismissed by the filing party.
U.S. Department of Education Issues Guidance on Providing Services to Children with Disabilities During the Coronavirus Pandemic
Author: Heather Edwards
On March 12, 2020, the U.S. Department of Education issued a Question and Answers document outlining local educational agencies’ responsibilities to address how, what, and when services should be provided to children with disabilities during the COVID-19 outbreak. The U.S. Department of Education advises, among other things, that:
- If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time.
- IEP and Section 504 teams would need to make an individualized determination as to whether compensatory services are needed under applicable standards and requirements.
- If a child with a disability is absent for an extended period of time because of a COVID-19 infection and the school remains open, then the IEP team must determine whether the child is available for instruction and could benefit from homebound services such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available.
For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.
Governor's Executive Order Relaxes Statutes Regulating Board Meetings To Encourage Teleconferencing In Response To COVID-19
Author: Omer Khan
Governor Gavin Newsom issued a new executive order on March 12 in response to the COVID-19 pandemic. The executive order expands public agencies’ ability to use teleconferencing for governing board meetings to promote a new policy of “social distancing.”
All public agencies are “urged to use sound discretion and to make reasonable efforts to adhere as closely as possible” to the laws governing open and public board meetings like the Brown Act. Laws requiring advanced notice, posted agendas, and public opportunity for comment are still in effect:
- Public agencies must still give advanced notice of each regular or special governing board meeting by publicly posting meeting agendas.
- Public agencies must still provide at least one publicly accessible location from which members of the public can observe and offer public comment during governing board meetings, even if no board members are physically present at that location.
However, numerous restrictions on teleconferencing and requirements for board meeting quorums are suspended for the duration of the COVID-19 public health emergency, meaning that:
- Board members’ teleconference locations do not need to be disclosed and publicly noticed.
- Board members’ teleconference locations do not need to be accessible to the public.
- Agendas do not need to be posted at all teleconference locations.
- No board members are required to be physically present at the publicly noticed location where the public can observe the board meeting and offer public comment.
It is not necessary that a quorum of board members participates from locations within the public agency’s boundaries; however, a quorum of board members is still required, whether they are in person or teleconferencing, to hold a board meeting.
Governance teams should consider how best to use this new flexibility, if at all. The Executive Order provides broad flexibility, but a primary effect is that board members can participate in board meetings by phone or over the internet from their own homes without the usual requirement to publicly disclose their home addresses and open their homes to the public.
“Social distancing” – maintaining six feet of separation between individuals and avoiding large in-person gatherings – is still highly recommended by the Governor and public health experts. Even if board members do not wish to take advantage of the loosened restrictions on teleconferencing, public agencies may wish to space out seating in board rooms and offer live broadcasts of meetings.
For further questions, please do not hesitate to contact us at Girard, Edwards, Stevens & Tucker LLP.
Author: Heather Edwards
There were several legislative bills enacted at the end of 2019 that impact local educational agencies (“LEAs”) and the provision of special education and related services to students with disabilities.
1. Assembly Bill 1172 (Frazier) – Nonpublic Schools
This bill adds new requirements for LEAs (including charter schools who serve as their own LEA for special education) that place students in state-certified nonpublic schools (“NPS”) and requirements for the nonpublic schools beginning with the 2020-21 school year. Specifically, LEAs that enter into master contracts with an NPS are required to conduct a site visit before placing a student if the LEA does not have other students enrolled at the school. In addition, LEAs are required to conduct at least one monitoring site visit each school year at each nonpublic school in which the LEA has placed a student and report findings from those visits to the California Department of Education within 60 days of the visit. The California Department of Education is required to create and publish criteria for reporting this information by June 30, 2020.
Also, nonpublic schools are required to provide documentation of annual staff training (and within 30 days for new employees) for employees who will have contact or interact with students on use of evidenced-based practices and interventions for behavior. LEAs will also be required to verify that the NPS has complied with these training requirements. The new law also requires that the NPS administrator hold certain credentials or licenses, that the NPS certify that it has an individual onsite who is qualified and responsible for behavioral interventions, and that the NPS notify the California Department of Education and LEA within one business day of any student incident in which law enforcement was contacted.
2. Assembly Bill 605 (Maienschein) – Assistive Technology
This bill requires LEAs (including charter schools who serve as their own LEA for special education) to increase access for students with IEPs to assistive technology (“AT”) (e.g., Chromebooks, iPads, communication devices, etc.) Effective January 1, 2020, LEAs are required to continue to provide a student access to any AT devices as set forth in his/her IEP for up to two months after disenrollment or until alternative arrangements can be made (whichever occurs first). The new law also expressly requires LEAs to provide devices for use in the student’s home or other settings when determined necessary by the student’s IEP team to ensure a free appropriate public education.
3. Senate Bill 223 (Hill) – Administration of Medical Cannabis
This bill (called “Jojo’s Act”) authorizes LEAs (including charter schools) to adopt a policy to allow a parent/guardian to possess and administer medical cannabis to a pupil who is a qualified patient at a school site. The cannabis cannot be in a smokable or “vapeable” form. The new law requires that the administration of medical cannabis cannot disrupt the educational environment or expose other pupils, that the parent must sign-in at the school site before administering, and requires valid written medical recommendation for the pupil to be kept on file at the school. The new law provides that school staff will not be required to administer the medical cannabis. Furthermore, the legislation expressly states that any policy adopted by an LEA can be amended or rescinded at any time.
For more information on these bills please contact the author of this Legal Alert or any of the attorneys at Girard, Edwards, Stevens & Tucker LLP.
Author: Anisa Pillai, Attorney at Law
Although there is no specific statute or case law which explicitly requires school staff to physically intervene to prevent students from harming themselves or others, they may be obligated to do so given the special relationship that exists between schools and students.
Special Relationship Between Schools and Students
Schools owe a special duty of care to the students in their charge. This duty requires school employees to take reasonable steps to keep students from harming themselves or others, which may include intervening or restraining students when necessary to prevent injury.
Specifically, courts have found that a special relationship exists between a local educational agency (LEA) and its students which imposes an affirmative duty on LEAs to take all reasonable steps to protect its students. (Rodriguez v. Inglewood Unified School Dist. (1986) 186 Cal.App.3d 707, 715). This special relationship gives rise to an LEA’s duty to supervise students: “It is the duty of school authorities to supervise at all times the conduct of children on the school grounds and to enforce those rules and regulations necessary to their protection.” (M.W. v. Panama Buena Vista Union School Dist. (2003) 110 Cal.Appl4th 508, 517).
The standard of care imposed upon an LEA in supervising its students is “the degree of care which a person of ordinary prudence, charged with [comparable] duties, would exercise under the same circumstances.” (Id. at pg. 518) Either a total lack of supervision or ineffective supervision may constitute a lack of ordinary care on the part of those responsible for supervision. (Id.) For example, a school district was found guilty of negligent supervision of its students when a student’s leg was broken by another student during the lunch hour. According to the court, the school had only one teacher on yard duty for 150 students; if more than one teacher had been assigned to yard duty on the day in question, then it is likely that one of them would have seen or heard the fight going on and stopped it before it resulted in serious injury. (Charonnat v. San Francisco Unified School Dist. (1943) 56 Cal.App.2d 840, 844).
Overall, it appears that courts have imposed an affirmative duty on LEAs to supervise students, including the duty to intervene or use physical force, in order to protect students from conduct which may result in physical injury to themselves or others.
Additionally, California law authorizes, but does not require, school staff to use reasonable force against students under certain circumstances. Specifically, school employees are authorized to use an amount of force that is reasonable and necessary to quell a disturbance threatening physical injury to persons or damage to property, for purposes of self-defense, or to obtain possession of weapons or other dangerous objects within the control of the pupil. (Ed. Code § 49001)
Liability of Schools and Employees
Because a school is under a mandatory duty to take all reasonable steps to protect its students from injury, an LEA may be found liable for an injury to a student when the school failed to discharge this duty. (Gov. Code § 815.6) In other words, it’s possible that a court could find an LEA liable for failing to use physical force or restraint to protect a student (for example, during a fight when engaged in self-injurious behavior), when that failure leads to an injury of a student. In defense, the LEA may argue that it exercised reasonable diligence to discharge the duty.
Overall, LEAs should ensure that employees are carrying out their duties conscientiously and following LEA policies and procedures for carrying them out. It appears unlikely that an LEA will be held liable for a student injury as long as the employee took reasonable steps to prevent the injury. However, if an employee failed to act entirely or fails to use an amount of force that is reasonable and necessary under the circumstances, this failure led to a student injury, it is possible that an LEA could be held liable for such injury due to the failure of the employee to exercise reasonable care.
In order to ensure safe, supportive, and positive school environment conducive to student learning and to minimize exposure for claims of negligence for physically intervening with students, LEAs should ensure that:
1. Employees are adequately trained in crisis prevention and intervention techniques and strategies;
2. Employees are knowledgeable of and follow LEA policies and procedures aligned with state and federal laws at all times;
3. Students receive adequate supervision while on school grounds or at a school-sponsored event; and
4. Employees take all reasonable steps to intervene to protect students from harming themselves or others.