Hansberger & Klein Newsletter – November 2016 Edition

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New Overtime Rule Blocked By Injunction Days Before Implementation

With just over a week before it was scheduled to take effect, a federal judge has blocked the implementation of an Obama administration rule that would have extended overtime eligibility to some 4 million Americans.

The Labor Department’s new overtime rule required employers to pay time-and-a-half to their employees who worked more than 40 hours in a given week and earned less than $47,476 a year.

That salary threshold is about twice what currently allows workers to be exempted from overtime.

On Tuesday, U.S. District Judge Amos Mazzant III issued a preliminary injunction in the case, siding with plaintiffs who said the new overtime rules would have caused an uptick in government costs in their states and made it mandatory for businesses to pay millions in additional salaries. Business groups said the new rule changes would have eventually led to layoffs.

Until the case is settled, businesses do not have to accommodate the planned overtime pay. We are watching this issue carefully and will update readers as soon as a decision is reached.




Proposition 58 – The Non-English Languages Allowed in Public Education Act

Proposition 58, passed by voters in the recent November elections, repealed the English-only immersion requirement and waiver provisions required by Proposition 227 of 1998. In English- only programs, students learn subjects from teachers who speak only in English. Proposition 227 required English learners to take one year of intensive English instruction before transitioning to English-only classes. As a legislative referral, Proposition 58 was voted on in the California Legislature. In the General Assembly, 53 legislators voted to place the measure on the ballot and 26 voted against doing so. In the Senate, 27 senators voted in support of the measure and eight voted against it.

Proposition 58 no longer requires English-only education for English learners. It allows schools to utilize multiple programs, including bilingual education. In bilingual programs, students learn from teachers who speak both their native language and English. Furthermore, it makes parental waivers no longer necessary to take non-English-only classes. If requested by enough parents, the measure requires schools to offer specific English learner programs as well. Under the measure, school districts and county offices of education must ask for annual feedback on English learner programs from parents and community members.

If you have questions about the impact Proposition 58 will have on your charter school, please contact us at any time.

AB 709 Vetoed by Governor Brown

Governor Brown vetoed AB 709 by Assemblymember Mike Gipson. CCSA Opposed AB 709 because it would have imposed Government Code 1090 on charter schools, removed important flexibility for charter school governance, and cost charter schools time and money spent on compliance that is better spent in the classroom.

In his veto message, the Governor wrote, “In 2014, I vetoed AB 913, a virtually identical bill. My reasons then were: Starting a charter school requires the strong commitment of dedicated individuals willing to serve on a governing board. While I support transparency, this bill goes further than simply addressing issues of potential conflicts of interest and goes too far in prescribing how these boards must operate. That’s still my view.” You can read the Governor’s full veto message here.

AB 739 Vetoed by Governor Brown

Governor Brown recently vetoed SB 739 by Senator Fran Pavley. CCSA Opposed SB 739 which limited charter schools operating outside of district boundaries. In his veto message, the Governor wrote, “This bill attempts to address an issue, currently being reviewed by the State Auditor, whereby school districts authorize multiple charter schools outside of district boundaries to collect oversight fees. Let’s review the audit when it’s released next spring to better determine the scope of the issue and what, if any, policy changes are necessary.” You can read the Governor’s full veto message here.

Governor Brown Signs Student Suicide Prevention Bill

AB 2246 (sponsored by Assembly Member Patrick O’Donnell) requires the California Department of Education to develop and maintain a model suicide prevention policy.

This bill would require the governing board or body of a local educational agency, including charter schools, that serves pupils in grades 7 to 12 to adopt a policy on pupil suicide prevention before the beginning of the 2017–18 school year. The policy must address the needs of high-risk groups specifically. The CDE has been tasked with developing and maintaining a model policy to serve as a guide for local educational agencies.



Supreme Court Hears Arguments in Case on Service Dog and Special Education

We are back again with an update regarding Wonder, the service dog.

The U.S. Supreme Court heard arguments recently in the case of Ehlena Fry (the case, Fry v. Napoleon Community Schools, can be tracked here) who was born with cerebral palsy, which significantly limits her mobility but not her cognitive skills. When she was about to enter kindergarten in Napoleon, Mich., her parents purchased a trained service dog — a white furry goldendoodle, named Wonder.

Wonder helps Ehlena open and close doors, transfer from a chair to a walker or from a walker to a toilet seat, among other thihgs.

Ehlena’s parents maintained the dog was necessary to make her more independent, just as a Seeing Eye dog would be for a blind student, but Ehlena’s school district would not allow the dog claiming that an aide the district was already paying for was sufficient.

The parents enrolled Ehlena in another school district and sued the first school district, Napoleon Community Schools.

The legal issue before the Supreme Court has very broad implication: namely, the case tests whether children denied the help of a service dog may sue for damages under the Americans with Disabilities Act, the ADA, without first going through a time consuming and sometimes costly administrative appeal under the Individuals with Disability Education Act, or IDEA.

Ehlena’s attorney, Sam Bagenstos, appeared to receive considerable skepticism at first from both conservative and liberal justices. Chief Justice John Roberts suggested that if parents want additional leverage in designing the free and appropriate public education plans to which their children are entitled under the IDEA, they can gain additional leverage by suing for damages under the Americans with Disabilities Act. And that, chimed in Justice Stephen Breyer, “would seem to gut the carefully written procedural system that the IDEA sets up.” Bagenstos’ resopnse was that Ehlena’s family is suing for emotional distress damages — something not available under the IDEA, so there is no point in going through an administrative appeal under that law.

Readers might well wonder what emotional damages Ehlena and her family now claim. In addition to the school’s general hostility to the dog, Bagenstos cited the humiliation Ehlena suffered when forced to demonstrate, in front of four adults at the school, just how she used the dog to get on and off the toilet.

The school district contends that parents cannot file a suit for damages under the ADA before completing administrative appeals under the IDEA. In retort, Justice Ruth Bader Ginsburg opined that just because the IDEA exists doesn’t mean individuals are barred from suing under other laws that protect the disabled. “Think of it this way,” Justice Elena Kagan interjected. “Suppose this girl wanted to go to a public library a couple of times a week and the library said, ‘You can’t take your dog here; we’re going to just provide you with a librarian who will help you.’ ” If the girl sues, claiming “she was deprived of access to a public facility in a way that caused her distress and emotional harm, isn’t that exactly the suit” this girl brought here, “except that instead of a library, it’s a school?”

Another way to understand the implications of this case is whether parents can pursue an “end

run” around the “cooperative process” designed by the IDEA by launching an ADA lawsuit instead of engaging in the development of individualized educaiton plan. Chief Justice Roberts put it another way when he said that the cooperative process would then be a “charade” because the parents wouldn’t be asking for the school district to allow the dog as part of an education plan but to allow the dog under the ADA, which guarantees access for the disabled. But when the dust settled, it was unclear in which direction the court was heading.

Rowley Revisited: U.S. Supreme Court to Weigh Level of Benefit Required by Special Education Law

The U.S. Supreme Court has granted review in a case about the level of education benefit a child must receive for a school district to have provided an appropriate level of service under the IDEA. The implications of this case are obviously significant.

The case, Endrew F. v. Douglas County School District RE-1 (No. 15-827), raises an important question that has divided federal appeals courts: What level of educational benefit must a child receive under his or her individualized education program, or IEP, to satisfy the demands of the Individuals with Disabilities Education Act?

The U.S. Court of Appeals for the 10th Circuit, in Denver, ruled last year in the case of a Colorado child with autism that because the child’s public school IEP had provided him with “some educational benefit,” the Douglas County district had provided a “free, appropriate public education” under the IDEA. The 10th Circuit court panel acknowledged that several other federal courts of appeals have adopted a higher standard that requires an IEP to result in a “meaningful educational benefit.” But the 10th Circuit, agreeing with a lower court in Endrew F.’s case, said that the key 1982 Supreme Court precedent on special education, Board of Education of the Hendrick Hudson Central School District v. Rowley, merely requires an IEP to provide “some educational benefit.”

The Solicitor General filed a brief arguing that the split is significant and urged the Supreme Court to take up the case. In response, the school district argued that the asserted split among the federal appeals courts is “shallow” and that only the U.S. Court of Appeals for the 3rd Circuit, in Philadelphia, “has consistently applied a purportedly more demanding ‘meaningful benefit’ standard.” “The government contends that the IDEA demands something ‘more robust'” than the “some benefit” standard, says the school district brief. “The question is whether a state has satisfied its substantive obligations if the IEP it offers provides a child more than a de minimis educational benefit. Under Rowley the answer is yes.”

The Endrew F. case is likely to be argued sometime early in 2017.



Gender-Neutral Bathroom Bill Signed By Calif. Governor

California Gov. Jerry Brown recently signed legislation requiring all single-occupancy restrooms in the state to be identified as “all gender” and be universally accessible, just days after the governor greenlit a bill limiting state employee travel to North Carolina due to its controversial transgender bathroom law.

The bill requires that businesses and governments post non-gender-specific signs on single- occupant restrooms by March 1, 2017. Sponsored by Democratic Assemblyman Phil Ting of San Francisco, the Assembyman claims his legislation would “chart a new course of equality for the nation.”

U.S. Judges Issue New, Conflicting Opinions on School Transgender Rights and The Supreme Court Agrees to Weigh Transgender Rights, Education Department Authority

It all began in August when a Federal District judge in Texas issued a nationwide injunction blocking the Obama administration’s guidance meant to expand transgender students’ access to restrooms and locker rooms in schools.

In contrast, U.S. Magistrate Judge Jeffrey T. Gilbert recommended granting a preliminary injunction sought by a group of parents and students to block a school district in Illinois from permitting transgender students to use the restrooms or locker rooms corresponding to their gender identity. (Gilbert’s opinion is merely a recommendation that must be approved by a federal district judge.)

No doubt given the brewing tensions around this issue, the U.S. Supreme Court recently granted the appeal of a Virginia school district seeking clarification of whether schools must allow transgender students to use the restrooms corresponding to their gender identity.
The court’s action in Gloucester County School Board v. G.G. (Case No. 16-273) will decide certain rights of transgender students in schools and the authority of the U.S. Department of Education to issue broad interpretations of its regulations.

The Supreme Court, of course, remains short one member since the death of Justice Antonin Scalia in February and the political gridlock over President Barack Obama’s nomination of Merrick H. Garland for the seat, so there is a risk the Court will deadlock on the merits of the

case, which would uphold a lower-court decision in favor of the student.

Regarding the question of the Department of Education’s authority to issue regulations in this matter, a May 2016 “Dear Colleague” letter from the DOE clarified that transgender students should be allowed to use restrooms corresponding to their gender identity. That guidance was temporarily blocked in August by the Texas Federal District judge’s nationwide injunction.

At issue is a 1997 Supreme Court decision, Auer v. Robbins, which held that a federal agency’s interpretation of its own ambiguous regulation should be given controlling weight unless the interpretation is plainly erroneous or inconsistent with the regulation or statute at issue.

In its short order regarding the matter, the Supreme Court said it would consider these two questions:

  • “If Auer is retained, should deference extend to an unpublished agency letter that, among other things, does not carry the force of law and was adopted in the context of the very dispute in which deference is sought?”
  • And “with or without deference to the agency, should the department’s specific interpretation of Title IX and [its regulation] be given effect?”

The discrimination case is currently set to be argued and decided before the end of June 2017.

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