Hansberger & Klein Newsletter – September 2016 Edition

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Associational Disability Discrimination

Most of our readers understand full well that discrimination against an employee because the employee belongs to a protected class is illegal. However, employers also cannot discriminate against employees based on their association with a disabled person. This is known as “associational disability discrimination.” A recent case illustrates the issues at play.

In this particular case, the employer had a long­term practice of allowing the employee to work earlier shifts to be home in the evening to care for his disabled son. But that all changed when a new supervisor came on board.

For no apparent reason, the new supervisor scheduled the employee for a late shift. When the employee refused to work the shift, the supervisor terminated him even though company policy allowed for less severe disciplinary action.

The court ruled these facts could support a conclusion that the new supervisor simply “wanted to avoid the inconvenience and distraction” posed by the employee’s need to care for his disabled son.

The facts of this case show the problems that can occur when employers don’t apply policies consistently, try to suddenly enforce a policy that was never previously enforced or fail to offer a legitimate, non­discriminatory reason for an adverse employment action.

Labor Code 230.8

Most of our readers are well aware of California’s sick leave laws. Readers should also become familiar with the requirements of Labor Code 230.8 and how the two laws can intertwine.

Labor Code 230.8 impacts sick leave policy, but in a way that benefits the employer (not the employee). Here is what is required under Labor Code 230.8:

Any staff member (certificated or classified staff) has the right to ask for up to 40 hours time off per year (but no more than 8 hours in any month) to “find, enroll, or reenroll his or her child in a school or with a licensed child care provider, or to participate in activities of the school or licensed child care provider of his or her child.” This time off would include an employee’s participation in field trips with his or her child, even if that child is enrolled at the employee’s school.

The employee must provide “reasonable notice” to request this time off. What is reasonable is not defined under the law, but generally speaking we would recommend at least 3 business days’ notice (so weekends and holidays or days the school isn’t open would not included). Regardless, you have some flexibility here.

In short, a school must grant the leave if the employee has hours available (but remember that if the employee has exhausted his or her 40 hours in a year or used up 8 hours in one month already then leave can be denied).

Labor Code 230.8 leave is unpaid, but the law states that the employee shall use any sick leave time they have accrued to pay for a 230.8 leave. A recent DLSE ruling clarified that this means you can deduct the hours from the employee’s sick leave if they have any accrued hours in the bank. Given all of this information, here’s an unlikely but possible scenario: Exempt employees (not hourly) are entitled to a full day’s pay if they take a partial day off. In other words, if an exempt employee tells you, “I will be in at 10 AM and will work the rest of the day” labor law requires you to pay that employee the entire day’s pay. Only when an exempt employee takes a full day off can you deduct that day from their pay.

So, a teacher could give “reasonable notice” under Labor Code 230.8 that they want to take some leave time. Let’s assume the employee has no sick leave hours, but they do have Labor Code 230.8 hours available. You would have to let them go on the field trip. If the field trip is for a partial day, and the teacher returns to work that same day, you would have to pay them for the full day.

For more information about Labor Code 230.8 and schools, visit the California Family School Partnership Act web site.

The Office of Special Education and Rehabilitative Services

The U.S. Department of Education Office of Special Education issued an August 2016 Dear Colleague letter that reminded the California Department of Education, other state educational agencies, and local educational agencies that students with disabilities in virtual schools, including charter schools, are protected under the Individuals with Disabilities Act and entitled to receive a free appropriate public education all the same. Based on a longitudinal study that began in 2014 of “virtual” schools, which OSERS defines as instruction in which children and teachers are separated by time and/or location, OSERS seems to believe that many such schools may not be complying with the requirements of the IDEA and/or State special education laws. California charter schools would typically understand a “virtual school” to mean an “independent study” program.

We can expect more movement in this area. OSERS has advised LEAs that have authorized charter schools to operate “virtual” programs, especially those charter schools that operate as “arms of the district” for special education purposes, to ensure compliance with the IDEA at so­called virtual schools. We would fully expect plaintiff’s attorneys to take a more active interest in special education related services at independent study programs as well.

The Ninth Circuit’s Latest Decision on Special Education Eligibility

The Ninth Circuit Court of Appeals held in L.J. v. Pittsburg Unified School District, No. 14­16139 (9th Cir. 2016) that a school district wrongfully denied a student eligibility for special education services when it failed to account for the impact of the numerous special education services already being provided for him at school to assist with his behavioral and academic progress. Further, the District erroneously determined that his conduct and treatment outside the school environment—suicide attempts and psychiatric hospitalizations—did not interfere with his education. This is an important case to understand.

The student was diagnosed with attention deficit hyperactivity disorder (ADHD), oppositional defiance disorder (ODD), and bipolar disorder. Beginning in the 2011­2012 school year, the District provided L.J. with behavior support interventions in his general education classroom to address his increasingly maladaptive behaviors at school. However, when that failed, the District placed L.J. in a segregated general education classroom for students with severe behavioral issues, provided him with one­-to-­one support, and evaluated him for special education eligibility. In May 2012, L.J.’s IEP team found L.J. not eligible for special education concluding he had no qualifying disabilities.

However, during this time, L.J. continued to struggle behaviorally, exhibiting multiple off­campus incidents of suicidal ideation. The District subsequently placed L.J. in another school for the coming school year, and the school psychologist reviewed L.J.’s recent psychiatric hospitalization records. In October 2012, L.J.’s IEP team reconvened, but nevertheless found L.J. not eligible for special education under the category of emotional disturbance. During this time, L.J. was receiving behavioral and mental health supports and had been provided with a one­to­one aide while remaining in the general education classroom. As a result of these interventions, L.J. was making some academic and behavioral progress.

In spring 2013, Parent filed a due process complaint against the District. The Office of Administrative Hearings (OAH) found L.J. not eligible for special education because he had no qualifying disabilities. On appeal, the U.S. District Court found that L.J. did have three qualifying disabilities: specific learning disability (SLD), other health impairment (OHI) due to his ADHD, and emotional disturbance (ED) due to his ODD and bipolar disorder. However, the District Court found that L.J. did not require special education because L.J. was performing well behaviorally, socially, and academically while enrolled in the general education classroom.

The Ninth Circuit Court of Appeals reversed the District Court’s decision. The Court explained that under the IDEA, a student becomes eligible for special education if he or she has a qualifying disability, and “the nature or severity of the disability . . . is such that education in regular classes with the use of supplementary aids and services cannot be achieved satisfactorily.” (20 U.S.C. § 1412(a)(5)(A); see 20 U.S.C. § 1401(3)(A); Ed. Code, § 56026.) The Court found that the student qualified for special education because, contrary to the District Court’s finding that he made progress while in general education, the student was only able to make such progress because he was receiving special education supports while in the general education setting.

“General education is what is provided to non­disabled children in the classroom.” In contrast, “special education” adapts the content, methodology, or delivery of instruction to address a child’s unique needs resulting from his or her disability, and to ensure his or her access to general education. (34 C.F.R. § 300.39(b)(3).) Reviewing the “snapshot” period for the two IEP meetings, the Court found that the progress L.J. made in the general education setting was actually due to his receipt of special education services: one­to­one assistance, mental health services, behavioral interventions, and other accommodations, including persistent teacher oversight, additional time to complete classwork or tests, shortened assignments, discretion to leave the classroom at will, and the option to take tests in a separate room or with one­to­one support. Further, the Court found that student’s suicide attempts were not properly considered in determining his special education eligibility. The fact that the student’s suicidal attempts occurred off­campus was irrelevant. The student is special education eligible if “having a suicidal ideation and attempting suicide interfered with [student’s] education,” regardless of where it occurs.

This case highlights the need for school districts to conduct thorough special education eligibility determinations that take into account the impact of supports, if any, being provided in the general education program potentially including those accommodations and services contained in a Section 504 Plan. Decisions to deny eligibility for students who are receiving specialized academic instruction or services, even if ostensibly in the regular education program, should be made with caution. As well, behaviour that occurs outside the school can and should be considered if there is evidence such behaviour is interfering with the student’s education.

Teacher Is Denied Immunity in Case of Stranger Who Took Kindergartner

A kindergarten teacher who allowed a student to be taken from the classroom by a woman claiming to be the child’s mother, who then sexually assaulted the girl, is not entitled to immunity from legal liability, a federal appeals court has ruled.

In January 2013, a woman named Christina Regusters entered the classroom of kindergarten teacher Reginald M. Littlejohn at W.C. Bryant Elementary School in Philadelphia. She claimed to be the mother of a child identified in court papers as N.R. or “Jane.” Littlejohn asked for identification and verification that Jane had permission to leave school. Despite the fact that Regusters could not produce any documentation, the teacher allowed her to take Jane.

Regusters sexually assaulted the child later that day, and a city sanitation worker found Jane on a playground after hearing her cries. Regusters was convicted of kidnapping and sexual assault charges and is serving a 40 years­to­ life prison sentence, according to the Harrisburg Patriot­News.

The court wrote: “[W]e conclude that it is shocking to the conscience that a kindergarten teacher would allow a child in his care to leave his classroom with a complete stranger.” The unanimous opinion by the U.S. Court of Appeals for the 3rd Circuit further stated: “Exposing a young child to an obvious danger is the quintessential example of when qualified immunity should not shield a public official from suit.” The loss of immunity means the teacher can be sued in her individual capacity.

California Lawmakers Extend Family Leave Mandates To Small Biz

A California law requiring small businesses to provide similar parental leave protections already required of employers with 50 or more workers was signed by Gov. Jerry Brown’s desk for approval. Introduced by Sen. Hannah­Beth Jackson, D­Santa Barbara, SB 654 now extends parental leave protections to 2.7 million additional Californians, about 16 percent of California’s workforce, according to her office. It provides six weeks of unpaid maternity and paternity leave for employees of companies with 20 to 49 employees. Employees must have more than 12 months of service with the employer (and at least 1,250 hours of service with the employer during the previous 12­month period). Employees may take up to six weeks of parental leave to bond with a new child within one year of the child’s birth, adoption, or foster care placement.

Is Off­Campus Harassment By A Student Your Duty?

Directly applicable to California schools, a recent 9th Circuit ruling held that a 7th­grader’s sexual harrassment of two younger students in a city park adjacent to their school was not protected under the First Amendment as off­ campus speech.

The student, identified as C.R., and several other 7th graders at Monroe Middle School in Eugene, Ore., teased and harassed a 6th grade boy and girl over several days, using terms related to oral sex and other vulgar language, court papers say. The students were traveling a path from the school that crossed into a city park and adjoins the school’s athletic fields.

Was C.R.’s harassing speech off­campus conduct? School administrators’ said the behavior was covered by the school district’s “door­to­door policy” covering student behavior to and from school.

C.R. sued on the basis that the discipline was an infringement of the free speech and due process rights. A federal district court rejected his claims and granted summary judgment to the school district.

In its Sept. 1 decision in C.R. v. Eugene School District 4J, the 9th Circuit court panel said the case presented “unique facts.” Significantly, this case seems to run contrary to numerous rulings that have held that off­campus bullying is NOT within a school’s jurisdiction.

The court stated: “The speech at issue occurred exclusively between students, in close temporal and physical proximity to the school, on property that is not obviously demarcated from the campus itself,” the court said. “A school may act to ensure students are able to leave the school safely without implicating the rights of students to speak freely in the broader community.”

The court said student after­school speech at a shopping mall or movie theater might present a different case, but those locations are not the same as a piece of property that was adjacent to school grounds and that few people could distinguish as separate.

Furthermore, the court said, the fact that the speech was sexual harassment and involved relatively young student victims made the discipline all the more defensible.

“Sexually harassing speech, by definition, interferes with the victims’ ability to feel safe and secure at school,” the court said.

In a somewhat surprising analogy, the 9th Circuit noted that many recent court cases on off­campus student speech have involved internet speech. “In our digital age, a school’s power to discipline students for off­campus speech has become an increasingly salient question for the courts,” the court said. But under this “analog” case, “we conclude that C.R.’s speech was tied closely enough to the school to subject him to the school’s disciplinary authority.”

Virginia School District Asks U.S. Supreme Court to Hear Transgender Case

A Virginia school district on Monday formally filed an appeal asking the U.S. Supreme Court to clarify whether schools must allow transgender students to use the restrooms corresponding to their gender identity.

“This case provides an excellent vehicle for determining whether the [U.S.] Department [of Education]’s understanding of Title IX reflected in [recent interpretation] letters must be given effect—thereby resolving once and for all the current nationwide controversy generated by these directives,” the Gloucester County district says in its appeal.

The district filed its appeal just weeks after it won a stay from the justices of a lower­court injunction that would have allowed a 17­year­old transgender student, Gavin Grimm, to use the boys’ restroom at his high school beginning in September.

The department’s more recent interpretation of that rule is that schools must allow transgender students to use the restrooms and locker rooms corresponding to their gender identity. In May, the federal Departments of Education and Justice issued a “Dear Colleague” letter that clarified, in somewhat broader terms, the federal interpretation that transgender students should be allowed to use restrooms corresponding to their gender identity. That guidance was temporarily blocked this month by a federal judge ruling in a challenge brought by Texas and 10 other states.

US District Judge Grants Nationwide Injunction Blocking White House Transgender Policy

Months after the Obama administration advised school districts that transgender students should be given access to bathrooms based on their gender identity, a federal judge in Texas has blocked the guidance from going into effect.

U.S. District Judge Reed O’Connor has granted a preliminary, nationwide injunction in response to a lawsuit filed by Texas and a number of other states.

The preliminary injunction would mean that, until that lawsuit works its way through the courts, the “status quo” would be maintained and the guidance could not be considered enforceable.

In a ruling issued Sunday, O’Connor concluded that there is a strong likelihood the states will win their case, justifying an injunction in the meantime. He found that the administration didn’t follow the proper notice and comment process for the guidelines.

Under his injunction, O’Connor ordered all parties to “maintain the status quo.” He says the administration can’t enforce the guidelines — or make any sort of investigation based on the idea that “the definition of sex includes gender identity.” The White House would also be barred from using the guidelines in any lawsuits, he wrote.

AB 354

It is often the case that the legislature passes “clean up” legislation after enacting a rather broad bill, such as the recent mandate that all children provide proof of immunization upon enrolling in California schools (subject to specific grade ranges). AB 354 is exactly such “clean up” legislation.

Among other things, AB 354 removes immunizations against hepatitis B as a 7th grade admission or advancement requirement but disallows enrollment for a student who has not received all pertussis boosters appropriate for the student’s age. The bill addresses more than this requirement, and we would encourage schools to seek legal advice regarding the specifics of the bill.

Legislative Update

There’s a flurry of legislative activity this year related to charter schools. As of the date of this newsletter, here’s an update regarding recent activity.

AB 1198. Unfortunately, Governor Brown vetoed this bill (and three other bills) and offered the following rationale: “I am returning the following four bills without my signature:

Assembly Bill 1198
Assembly Bill 1783
Assembly Bill 2182
Senate Bill 1113
Each of these bills creates unfunded new programs.

Despite significant funding increases for local educational agencies over the past few years, the Local Control Funding Formula remains only 96 percent funded. Given the precarious balance of the state budget, establishing new programs with the expectation of funding in the future is counterproductive to the Administration’s efforts to sustain a balanced budget and to fully fund the Local Control Funding Formula.

Additional spending to support new programs must be considered in the annual budget process.”

We had hoped that AB 1198 would create new opportunities to finance charter school facilities, but it appears that will not be the case.

SB 322. Mark Leno’s bill (a repeat from last year) once again seeks to mandate the suspension/expulsion process for charter schools. CCSA has been lobbying against the bill but has reserved comment pending the latest version

AB709: Among other things, AB 709 would impose Government Code 1090 on charter schools and would mandate that charter schools adhere to the Brown Act, the Public Records Act and the Political Reform Act. The bill is currently on the Governor’s desk, although Governor Brown previously vetoed a charter school conflict of interest bill with similar language.

SB 739: Among other things, SB 739 would prohibit school districts in negative certification from authorizing charter schools out of their district. The bill is currently on the Governor’s desk, and we are waiting on his action.

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