Public School must allow High School Religious Club to use Classroom During Lunch Period The United States Court of Appeal for the Ninth Circuit has ruled that, under the Equal Access Act (the "Act"), a public high school could not refuse to allow a student religious club to meet on campus during the school lunch hour. (Ceniceros v. Board of Trustees of the San Diego Unified School District (February 6, 1997) 97 Daily Journal D.A.R. 1313.)
University City High School ("UCHS") is a public high school within the San Diego Unified School District. All students at UCHS have the same daily lunch period, during which no classes are held and the students may leave the campus. A broad spectrum of voluntary, noncurriculum related student groups and clubs meet during the lunch period. In 1992, student Melanie Ceniceros asked the vice-principal if she could form a student religious club that would meet in an empty classroom during the school lunch period. The vice-principal allowed her to form the club but denied her request to use a classroom.
Ceniceros filed an action against the District alleging that, by denying her religious club the opportunity to meet during lunch as other clubs were allowed to, UCHS violated her rights under the Act and the Free Speech and Free Exercise clauses of the Constitution. The District argued that its denial of lunch time access to Ceniceros did not violate the Act because UCHS's lunch hour did not fall within the law's definition of "noninstructional time." The district court granted the District's motion for summary judgment.
The Ninth Circuit reversed the lower court, holding that the plain meaning of "noninstructional time," as defined in the Act, included the UCHS lunch period as part of a limited open forum. A "limited open forum" exists "whenever [a] school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." 20 U.S.C. 4071(b). The Act defines noninstructional time as "time set aside by the school before actual classroom instruction begins or after classroom instruction ends." 20 U.S.C. 4072(4).
The lunch period was noninstructional time because the school had set it aside as nonclassroom, noninstructional time after classroom instruction ended for the morning and before it began in the afternoon. Therefore, because it was noninstructional time and other noncurriculum related student groups were granted access, UCHS impermissibly denied Ceniceros' group the opportunity to meet during that time.
There were several other factors upon which the Court relied in reaching its conclusion. UCHS had a broad spectrum of student clubs. The students were not required to attend the meetings of any club and could leave the campus during the lunch period if they wished. Finally, the Court noted that secondary students are mature enough to recognize Ceniceros' club meetings were student-sponsored rather than government-sponsored speech.
The Court emphasized that the religious club's right to meet is defined by the extent to which other groups were permitted to meet. If other noncurriculum groups were permitted to meet in classrooms, UCHS should not have denied access to Ceniceros' group. Likewise, if other groups met on school grounds, but not in classrooms, the religious club was entitled only to similar access under the Act.
This decision does not necessarily preclude school districts from disallowing student religious groups from using school premises for meetings during lunch periods. If a school district wishes to prohibit any student group, including a religious club, from meeting during lunch, the school need only make its prohibition neutral, so that all noncurriculum related groups are barred from meeting at lunch. The Court also noted that a school is permitted to explain its limited open forum policy in order to dispel any mistaken impression of its endorsement of any group.
The San Diego Unified School District has filed a petition for rehearing before the full Ninth Circuit Court of Appeal. If the decision is reversed, this will be reported in a subsequent News Brief.
If you would like further information about student rights and school district responsibilities under the Equal Access Act, please contact any of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Public Employers may Require Pre-Employment Drug and Alcohol Testing as a Condition of Employment A divided California Supreme Court has ruled that public employers may require pre-employment drug and alcohol testing for all prospective employees as a condition of employment. (Loder v. City of Glendale (January~6, 1997) 97 D.A.R. 222.) A majority of the Court, however, limited its ruling by holding that the wholesale drug and alcohol testing of existing employees seeking promotions is not permissible.
The City of Glendale had sought to conduct urinalysis testing for all job classifications, both pre-employment and pre-promotion. The lower courts ruled that the testing would be permissible for some job classifications -- for example, those jobs relating to safety -- but not for all job classifications.
The Supreme Court, distinguishing prospective employees from existing employees, held that "an employer has a significantly greater interest in conducting suspicionless drug testing of job applicants than it does in testing current employees seeking promotion, and that the imposition of a urinalysis drug testing requirement on job applicants as part of a lawful pre-employment medical examination involves a lesser intrusion on reasonable expectations of privacy than does testing conducted independently of such an examination."
Given the divisiveness of the Supreme Court opinion, it is unclear as to how far a public employer can go with respect to alcohol and drug testing in situations outside the pre-employment context. Public agencies may therefore wish to consult with legal counsel before seeking to implement any alcohol and drug testing policy.
If you have any questions concerning this ruling, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Selection of Bid Alternates must be Blind Selection A California Court of Appeal recently held that a city's alternative bidding procedure was invalid since it did not include a method to keep the names of the bidders confidential until after the city determined which alternatives would be included in the project. (F.T.R. International, Inc. v. City of Pasadena (February 18, 1997) D.A.R. 3603.)
This case involved the City of Pasadena's decision to renovate a community health center, a project divided into three phases. Pasadena determined that the portion of the budget allocated for Phase II of the project would exceed its budget. As a result, certain elements of the project were redesigned while other elements were separated out to be bid as additive alternates.
The Phase II bidding procedure worked as follows: The contractor was instructed to give the bid for that portion of the work that the City knew certainly it wanted to build, i.e., the base bid. Additionally, each contractor was instructed to submit a bid on nine alternates. The alternates would be constructed only if Pasadena's budget permitted. Pasadena reasoned that by using the alternative bidding procedure, it could pick and choose which portions of the project to build after the bids were opened, as it would know the price of the base bid and, therefore, would also know how much money was available for the alternate work.
The Phase II bids were opened and entered onto a bid tabulation sheet by contractor name. Pasadena determined that F.T.R. International, Inc. had submitted the lowest bid for the base contract work. Pasadena then decided to select alternative numbers 2, 3, 4, 5 and 9 based on price and the quality of material offered. Mallcraft, Inc., the third lowest bidder on the base work, was the low bidder for the alternate work, and was awarded the Phase II contract by Pasadena. An unsuccessful bidder then challenged the award in court, arguing that the use of the alternative bids violated competitive bidding laws by giving Pasadena the opportunity to play favorites. In opposition to the petition, Pasadena argued its motives in using the alternative bidding procedure were good, that corruption had not played any part in its decision, and that it was entitled to exercise discretion in the way it awarded contracts.
The Court ruled against the City. The Court wrote that while Pasadena's use of alternative bidding permitted Pasadena to make the most economical use of its resources, the procedure did not exclude favoritism, and allowed for the appearance of impropriety. The Court found that the fatal blow in the procedure was that the names of the bidding contractors had been disclosed at the time Pasadena chose which alternatives to add. Since Pasadena had access to the names of potential bidders, it had the opportunity to play favorites. The Court stated that some sort of blind identification of bidders must be used until the decision is made as to which bidder is the lowest responsible bidder. Alternatively, an agency may determine the order of the alternatives prior to opening the bids.
The effect of the Court's decision could be far reaching, as it would apply to cities, school districts and other public agencies which use bid-alternate procedures. This decision requires the public agency to make its decision regarding which alternates will be undertaken without knowing the identification of its bidders.
If you have any questions or comments regarding this case or other questions regarding public bidding requirements, please contact any of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Amendments to FERPA Reduce the Burden on Districts
Relating to Disclosure of Student RecordsRecent amendments to the federal regulations implementing the Family Educational Rights and Privacy Act ("FERPA") reduce the burden on school districts relating to the disclosure of student records. These amendments include eliminating the requirement that districts adopt student records policies and receive consent before disclosing records under certain circumstances. Several of these amendments, which took effect December 23, 1996, are discussed below.
One amendment to the FERPA regulations eliminates the requirement that educational agencies and institutions adopt student records policies. The purposes behind this change include allowing educational agencies and institutions greater flexibility. For example, the annual notification to parents and students need not list FERPA's exceptions to the prior written consent provision, or specify hearing procedures under FERPA's amendment provision, provided that this information is made available to parents and eligible students seeking to amend educational records. In addition, the annual notification need not reference directory information. The Department of Education has prepared a model annual notification policy to use in implementing this amendment. Educational agencies and institutions will be allowed up to three years to make the transition to the new requirements.
Another amendment to the FERPA regulations addresses the issue of an educational institution receiving consent before releasing educational records. Under the new regulations, prior consent is not required under certain circumstances before disclosure concerning the juvenile justice system is made to State and local authorities. An educational agency or institution may also disclose information without prior written consent in order to comply with a judicial order or lawfully issued subpoena, provided the agency or institution makes a reasonable effort to notify the parent or eligible student before the disclosure. However, the agency or institution need not make a reasonable effort to notify when it receives certain subpoenas from the federal grand jury or for a law enforcement purpose.
The third instance where records can be disclosed without prior written consent is where the educational agency or institution initiated legal proceedings against a parent or student and has made a reasonable effort to notify the parent or eligible student before disclosing the student's relevant educational records to the court without a court order or subpoena.
Although these federal regulations have been amended, we are still awaiting comparable changes to the California Education Code. We will advise you of any similar amendments to California law in a later newsbrief. In the meantime, should you have any questions or comments regarding these amendments to the federal regulations or their effect on state law requirements, please contact any of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Urgency Legislation Enacted Regarding Employment of Certificated Personnel for Purposes of the Class Size Reduction Program Last year, legislation regarding the employment of certificated personnel pursuant to the Class Size Reduction Program was signed into law, but did not become operative. The Governor recently signed urgency legislation - Assembly Bill 18 - which gives immediate effect to those previously inoperative provisions.
Most significantly, the new law provides that, until July 1, 1999, the $17,500 cap on the compensation a retiree may earn without a consequential reduction in his or her retirement allowance does not apply to a teacher who retired on or before July 1, 1996, and whose subsequent employment to teach grades K through 12 is "necessary to meet the objectives of the Class Size Reduction Program."
Districts will be required to submit documentation to the State Teachers' Retirement System ("STRS") to substantiate the eligibility of a retiree for the exemption from the earnings cap. Consequently, a district that hires retirees under the new law must be prepared to verify the necessity for the retiree's employment. For a retiree who is hired to teach in grades 4 through 12 (rather than in K-3, where the connection with the district's implementation of class size reduction is more readily apparent), the documentation should clearly connect the retiree's hire with the consequential assignment of another teacher to grades K-3 to meet class size reduction objectives.
Under the new law, districts must treat retiree teachers hired for class size reduction as a distinct class of temporary employees within the existing bargaining unit. "Temporary" in this context reflects the law's provision that such retirees may teach and continue to be exempt from the earnings cap only until July 1, 1999. Thus, retired teachers are distinguished from temporary teachers who are hired to replace certificated employees on long-term leave. We recommend developing a separate salary schedule for class size reduction retirees, and note that the rate of pay for the retirees' service, which must be collectively bargained, may not be less than the minimum nor more than the maximum paid to other teachers performing comparable duties. Recognizing that retired teachers are continuing to receive pension benefits, many districts are starting these teachers at the lowest end of the salary schedule, and are providing additional compensation to holders of advanced degrees by way of stipend.
The new law also establishes that a certificated person who is employed for purposes of the Class Size Reduction Program is not required to take the State basic skills proficiency test if he or she has been employed in a position requiring certification in any school district within 39 months of the new employment. Further, if a Class Size Reduction Program teacher has not been employed in a position requiring certification within 39 months, the teacher may be employed on a temporary basis on the condition that he or she take the proficiency test during the first year of employment. Such a teacher is not subject to the general requirement that he or she pass the district's basic skills proficiency exam before being temporarily employed.
STRS has indicated that an Administrative Directive on these issues will be sent out at the end of April 1997, and that the Directive will include audit forms for districts' use.
Should you have any questions regarding this new law or class size reduction issues in general, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Chronically Absent Employee may, under Certain Circumstances, be Required to Submit to a
Fitness-for-Duty ExaminationIn a recent case, the United States Court of Appeals for the Ninth Circuit has held that an employer may compel an employee with a history of frequent and prolonged absences and illnesses to submit to a fitness-for-duty medical examination. The court held that under the circumstances of that case such an examination would not violate either the Americans with Disabilities Act (ADA) or the employee's Fourth Amendment rights. (Yin v. State of California (9th Cir. 1996) 95 F.2d 864.)
The plaintiff in this case was a tax auditor for the State of California Employment Development Department. For a period of five years before she filed this action she used her sick leave, vacation time in lieu of sick leave and dock time in lieu of sick leave at far greater rates than the average for tax auditors. Her productivity was consistently at or near the bottom for tax auditors working out of the San Jose district office for four straight years.
In 1993, her supervisor asked her to submit to an independent medical examination. The State dropped its request, however, after she retained a lawyer and threatened legal action. In 1994, after several more absences, including one lasting almost 30 consecutive days, the State again demanded that she submit to an examination. The employee filed a lawsuit to prevent the State from requiring her to release her medical records and submit to an examination, or from disciplining her for refusing to do so, on the grounds that any such requirement would violate the ADA and her Fourth Amendment rights to freedom from unreasonable searches and seizures.
The district court ruled in favor of the State on all her claims. The Ninth Circuit Court of Appeal upheld the trial court's decision, holding that the proposed examination came under the "business necessity" exception of the ADA. The court concluded that when health problems substantially impact an employee's job performance, the employer can require the employee to undergo a physical examination designed to determine his or her ability to work, even if the examination might disclose a disability. The court also held that the examination would not violate the employee's Fourth Amendment and privacy rights under the circumstances because the plaintiff's privacy expectations were diminished by four factors: 1) her status as an employee; 2) a State statute permitting testing of civil service employees; 3) a union contract incorporating the statute; and 4) her record of extended and egregious absenteeism.
Although this case does not provide employers with unlimited authority to require employees to submit to medical examinations, it does hold that under appropriate conditions examinations are allowed. Examinations of school district employees may be permitted under Education Code section 45122 (for classified employees), and section 44839 (for certificated employees). Other situations should be evaluated on a case-by-case basis. If you have any questions about this or other employment related matters, please call one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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FEHA Requires Employer to Help Disabled Employee find Alternative Employment without Request from Employee Under California's Fair Employment and Housing Act ("FEHA", Government Code Sections 12940 et seq.), the California Court of Appeal has held that an employer who becomes aware of an employee's disability and offers similar assistance to other employees, or can do so without undue hardship, has an affirmative duty to help the disabled employee find alternative employment with the employer even though the employee fails to request such accommodation. (Prilliman v. United Air Lines, Inc. (March 25, 1997) 97 Daily Journal D.A.R. 3971.)
In Prilliman, two airline pilots were grounded after the airline learned that they had been diagnosed with AIDS. The pilots did not request an alternative job position with the airline, but the Court of Appeal held that FEHA imposed an affirmative duty upon the airline to help the pilots find alternative jobs if the airline offered similar assistance to other employees or could do so without undue hardship. Nevertheless, the Court of Appeal affirmed a summary judgment in favor of the airline as to one of the pilots because it was undisputed that he was incapable of performing any alternative job. The Court of Appeal reversed the judgment in favor of the airline as to the other pilot because the airline failed to show he was incapable of performing alternative jobs.
Prilliman establishes an employer's affirmative duty under FEHA to help find alternative employment, whether or not requested by the employee, if the employer offers similar assistance to other employees or can do so without undue hardship. Please feel free to call any of our offices regarding the implication of this case.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Homosexual Student who was Harassed may sue for Discrimination Based on Gender and Sexual Orientation A United States Court of Appeals has held that a homosexual student, who was harassed for years at middle school and high school, may have been discriminated against and denied equal protection of the laws by the school district and individual administrators because of his gender and sexual orientation. (Nabozny v. Podlesny (7th Cir. 1996) 92 F.3d 446.)
In seventh grade, plaintiff Jamie Nabozny decided not to "closet" his sexuality and as a result was subjected to considerable harassment from his fellow students. He was called a "faggot" and suffered physical abuse, including being spit on and struck. Nabozny complained to his counselor and to the middle school principal, who took no action against the perpetrators. On one occasion two male students pushed Nabozny to the ground and performed a mock rape on him. When he complained to the principal, she said "boys will be boys" and told Nabozny that if he was "going to be so openly gay," he should expect such behavior from his fellow students.
In high school the harassment continued. On one occasion after a group of students kicked him in the stomach for five to ten minutes, Nabozny complained to the administrator in charge of discipline, who told Nabozny he deserved such treatment because he was gay. No action was taken against the students who attacked Nabozny.
The Court of Appeal found that Nabozny had set forth sufficient facts to establish discrimination against him on account of his gender and sexual orientation, in violation of the Fourteenth Amendment. The court found it "impossible to believe" that a female lodging a complaint about a mock rape would receive the same response Nabozny received. In addition, there was other evidence that male and female victims of harassment and battery received different treatment. The court further found the comments that Nabozny should expect to be harassed because he is gay a sufficient basis to establish that he was subjected to discriminatory treatment based upon his sexual orientation. The case was returned to the trial court and, following a jury verdict in favor of Nabozny and against the individual defendants, an out-of-court settlement of $900,000 was reached.
While the comments and actions (or inactions) of the administrators in this case are particularly outrageous, unfortunately, the conduct of Nabozny's fellow students is probably somewhat common. This decision, and subsequent jury verdict, serves as a reminder that school district administrators must be vigilant, consistent and fair in their treatment of all students without regard to gender or sexual orientation, and must respond quickly and appropriately to cases of same sex harassment.
If you have any questions regarding this case or harassment and discrimination in general, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Oral and Written Communications to Committee on Credentials Following Employee Resignation are Privileged A California Court of Appeal has held that after a certificated employee resigns as a result of allegations of acts or omissions which appear to constitute probable cause for the revocation or suspension of his or her credential, a school district is obligated to disclose to a Committee of Credentials all the facts constituting the reasons for the resignation. The Court further states that all such disclosures are absolutely privileged under Civil Code section 47, subdivision (b). (Picton v. Anderson Union High School District (October 31, 1996) 96 Daily Journal D.A.R. 13290.)
The plaintiff in this case, Picton, was a high school teacher. After four female students complained of his inappropriate sexual conduct, the defendant school district served him with a statement of charges with notice of intention to dismiss. Amy, who was one of the four students, complained that Picton had raped her.
Prior to the dismissal hearing, Picton and the district entered into a settlement agreement which provided for Picton's resignation and for the district to respond to third party inquiries by providing Picton's years of employment, highest salary, and Amy's decision to withdraw her charges. As part of the settlement, Amy and Picton entered into a separate agreement under which Amy agreed to withdraw her charges. Thereafter, the district notified the Committee of Credentials of Picton's resignation and the underlying facts leading to the resignation, including Amy's complaint of rape.
Title 5, section 80311 of the California Code of Regulations requires a school district to notify the Commission on Teacher Credentialing of a certificated employee's dismissal, resignation, or suspension for at least 90 days and "to provide to the Committee of Credentials facts which constitute the cause or causes for the disciplinary action against the certificated employee...."
Picton filed an action claiming, among other things, that the district breached his settlement agreement when it provided facts related to the rape allegation and defamed him at the hearing conducted by the Committee of Credentials. He specifically contended that the district had broadened the provision of the agreement that limited what information the district could provide in response to third party inquiries.
The Court of Appeal held that the district properly disclosed Amy's allegation of rape because it was under a legal duty to notify the Committee of Credentials of Picton's resignation and the facts which constituted cause for disciplinary action against him. The Court specifically found Picton's construction of the third party inquiry clause illegal as a matter of public policy.
The Court further held that all letters or communications from the district to the Committee of Credentials in advance of the hearing "designed to prompt action..." and all testimony provided at the hearing itself were "absolutely privileged" and, therefore, not a valid basis for a defamation claim.
This case confirms that a school district has a duty to provide to a Committee of Credentials all facts related to a certificated employee's dismissal, resignation, or long term suspension, notwithstanding any agreement providing for withdrawal of allegations, when the resignation, dismissal or suspension was the result of allegations which appear to constitute probable cause for revocation or suspension of the employee's credential. It also establishes that a school district cannot be held liable for defamation for communications made to a Committee of Credentials.
Lozano Smith Smith Woliver & Behrens represented the Anderson Union High School District in the administrative proceeding to terminate Picton. If you have any questions concerning Picton, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Qualified Teachers have Preference for
Athletic Coaching VacanciesIn California Teachers Association v. Governing Board of Rialto Unified School District (Jan. 2, 1997) 97 Daily Journal D.A.R. 73, the California Supreme Court held that Education Code section 44919(b) gives a preference to teachers currently employed by a district for athletic coaching positions, so long as the teachers meet qualifications imposed by the District.
In this case, the District advertised several basketball coaching positions at its new high school, and a tenured teacher employed by the District applied for each position. However, the District hired others, including two classified employees, for the positions.
The teacher filed an action in the superior court challenging the District's decision. He contended that the district's action violated Section 44919(b), which provides: "Governing boards shall classify as temporary employees persons, other than substitute employees, who are employed to serve in a limited assignment supervising athletic activities of pupils; provided, such assignment shall first be made available to teachers presently employed by the district." The teacher argued that the emphasized language meant he had an absolute right to the position over all persons not employed by the District and all classified District employees. The District argued that the provision only provided the teacher with a right to early notice of the vacancy, not a right of first refusal.
The trial court found in favor of the District, concluding that the provision did not provide the teacher an absolute right to the position. The court of appeal reversed, ruling that the provision, in essence, provided the teacher with a "right of first refusal" to the position. The California Supreme Court disagreed with both the trial and appellate courts, finding that the provision provided teachers with only a limited preference to coaching positions.
The Court explained that the legislature intended to provide presently employed teachers with a "tangible advantage" which was not provided by early notification of the vacancy alone.
However, the Court noted that the legislature still intended districts to have "local control" and flexibility in establishing the qualifications for athletic coaches. Thus, the Court held that the statute meant that "a teacher who applies for an athletic coach position is not guaranteed the position, but must demonstrate his or her qualifications under applicable regulations as promulgated by the district, as well as superiority over other teacher-applicants."
This decision is significant in that the Court recognized the importance of districts having local control and flexibility as a matter of public policy. Practically, the decision means that presently employed teachers have a right of "first consideration" for athletic coaching positions. Therefore, a district can deny presently employed teachers the position if they do not meet qualifications established by the district. The school simply must consider that teacher's application before it considers the application of classified employees or non-employees.
Lozano Smith Smith Woliver & Behrens participated in the argument of this case before the Supreme Court. The firm is presently working with the California School Boards Association to draft model policies to assist districts in complying with this decision.
If you should have any questions concerning this ruling, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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School Districts may be Liable for Recommending Employee without Disclosing Prior Acts of Sexual Misconduct The California Supreme Court affirmed that a school district can be liable for recommending a former employee when the recommendation fails to disclose known or reasonably suspected acts of sexual molestation previously committed by the employee. However, the Supreme Court overturned the appellate court's holding that a recommending school district can be held liable for not reporting acts of sexual molestation pursuant to the Child Abuse and Neglect Reporting Act (Penal Code section 11164 et seq.) when the alleged victim was never in the recommending school district's custodial care. (See Client News Brief 1996 No. 5, February 1996 for a summary of the Court of Appeal decision.)
In Randi W. v. Muroc Joint Unified School District (Jan. 28, 1997) Daily Journal D.A.R. 965), plaintiff Randi W. was a student at Livingston Middle School where Robert Gadams was vice principal. Gadams sexually molested plaintiff while she was in his office. Plaintiff sued three school districts who had previously employed Gadams and whose officers had provided letters of recommendation for him. Plaintiff maintained that the recommending school districts were negligent because they had recommended Gadams for positions of trust despite their alleged knowledge of past incidents of sexual misconduct by Gadams. The districts argued that they owed no legal duty to plaintiff. The trial court agreed and dismissed the law suit for failure to state a legal cause of action.
The Fifth District Court of Appeal reversed, holding that California law protects third parties under circumstances such as these. The appellate court also held that the school districts failed to comply with a mandatory duty to report known or reasonably suspected incidents of child abuse, and therefore could be held liable under the reporting statutes.
The Supreme Court held that the writer of a letter of recommendation owes a duty to prospective employers and third parties not to misrepresent facts. The letters which recommended Gadams were affirmative representations without qualification and reservation, and thus were misleading. The court held, however, that plaintiff could not bring a claim against the recommending districts under the child abuse reporting statutes because she had never been in the custodial care of the defendant districts.
This case highlights the care that employers must take when offering references for former employees. School Districts may limit their exposure by ensuring that only the superintendent, or a limited number of other designated administrators, be authorized to give recommendations or by declining to give recommendations.
Please contact any of our offices if you need assistance in determining how to respond to a specific request for a referral.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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State Revises Prevailing Wage Laws to Conform
to National StandardThe State Office of Administrative Law approved new regulations pertaining to the prevailing wage requirements for public works projects. The regulations became effective January 26, 1997, and are found at Title 8, California Code of Regulations Sections 16000, et seq.
California previously used the "Modal" method which determines the prevailing wage in any craft as the most frequently occurring wage, which generally is the collective bargaining rate and the highest in any area.
Under the new regulations, the prevailing wage will be that paid to a majority of workers in a particular craft. If there is no such majority, then a weighted average will be used to determine the prevailing wage. This is the method used by the federal government and the majority of states that have prevailing wage laws.
In addition to the changes the calculation of the prevailing wage rate, there will no longer be an automatic upward adjustment of the prevailing wage in the middle of a project on account of a wage increase negotiated in a union contract.
The effect of the new regulations is that, in many instances and particularly in those areas of the state outside the major metropolitan cities, the costs of public works projects which require that prevailing wages be paid will be less. This is so because the prevailing wages will now reflect the wages actually prevailing in the local area.
If you have any questions concerning these new regulations, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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"Catchall" Exemption to Public Records Act Prevents Public Access to County Board of Supervisor Applications A California Court of Appeal recently determined that documentation gathered by the Governor to evaluate the candidacy of potential appointees to the County Board of Supervisors need not be disclosed under California's Public Records Act. (Wilson v. Superior Court (December 1996) 51 Cal.App.4th 1136; _Cal.Rptr.2d_.)
Modeled after the federal Freedom of Information Act, the California Public Records Act (Gov. Code § 6250 et seq.) requires public records to be disclosed to the public unless a particular exemption applies. Section 6255 of the Public Records Act is the "catchall" exemption, which permits a public agency to avoid disclosure if it can show that the public interest in nondisclosure outweighs its interest in disclosure in a particular case.
In Times Mirror Co. v. Superior Court (1991) 53 Cal.3d 1325, the California Supreme Court previously recognized that documentation gathered to assist a public agency or officer in making a decision -- known as the "deliberative process privilege" -- falls within the catchall exemption. The Wilson court concluded that the Governor's review of "predecisional documents whose sole purpose is to aid the Governor in selecting gubernatorial appointees," is such a deliberative process where disclosure of the documentation is not required.
Wilson extends the deliberative process privilege to predecisional application information submitted by potential political appointees who expected that the information would remain confidential and had been so informed by the Governor's office. Under these circumstances, the Wilson court reasoned that non-disclosure of a candidate's medical and financial histories, background, associations and political beliefs under the Public Records Act -- information otherwise protected by the constitutional right to privacy -- would best serve the public's interest.
If you should have any questions concerning this ruling, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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Procedural Safeguards Applicable to Special Education Testing are also Applicable to Individualized Student Testing The Ninth Circuit Court of Appeals has ruled that when a teacher or parent requests individual evaluations of students, parents must be notified and given the procedural protections guaranteed under the Individuals with Disabilities in Education Act (IDEA) and Section 504 of the Rehabilitation Act. (Pasatiempo v. Aizawa (December 19, 1996) 96 Daily Journal D.A.R. 15203.) In making this determination, the Court reversed a decision by the District Court which had found in favor of the Department of Education of the State of Hawaii ("DOE").
The lawsuit against the DOE was brought by several students who had been referred for assessment by either their parents or school. The students claimed that the manner in which the evaluations were administered did not comport with the procedural requirements of IDEA or section 504 of the Rehabilitation Act.
Prior to the ruling in this case, the DOE utilized two methods for assessing students. One type of evaluation, called a "chapter 36 assessment" (referring to Hawaii Administrative Regulation Chap.36), was intended to be implemented for disabled students or students who are suspected of being disabled and incorporates all of the procedural protections guaranteed under IDEA and Section 504.
The other type of assessment, referred to as a "non-chapter 36 assessment," was intended for students not suspected of having a disability but who may have been experiencing achievement delays or adjustment difficulties. The "non-chapter 36 assessment" was not considered to be a "comprehensive" evaluation and parents were not notified of the procedural safeguards applicable under IDEA.
The Ninth Circuit found that other than the title, the forms used to refer students for either type of assessment were identical. The forms did not distinguish between the types of evaluations nor did they provide a mechanism for selecting between the two. Moreover, the court did not find any purported distinction between testing for disability and achievement delay to be compelling, calling the DOE's efforts to differentiate between the two types of evaluations "ad hoc" and "subjective."
In light of the failure of the DOE to develop clear standards for establishing which students were to receive testing to determine eligibility for special education and which were to be tested for achievement delays, the Court ordered that whenever individualized testing is contemplated, parents must be informed that the child will be tested, with the distinction between the types of testing clearly explained. Further, parents must be informed of their right to challenge DOE determinations. If a parent requests an evaluation based upon a suspicion that a child may have a disability, that suspicion is sufficient to place any subsequent action or inaction within the ambit of IDEA and Section 504.
California does not have a scheme for testing students similar to that used in Hawaii, however many districts use pre-referral or pupil-study teams to address the needs of general education students. The pupil-study team may recommend certain types of assessment regarding a student's performance in the curriculum or the development of instructional strategies which target the student's academic or behavioral problems. This decision highlights the importance of distinguishing between the referral of students to pupil-study teams and the IEP process.
While pupil study teams are intended to provide an important vehicle for the development and implementation of alternative programs and instructional strategies for students who are having difficulty within the general education curriculum, it is important for school districts to remember that: 1) the pupil study team must not usurp the function of the IEP, and 2) the student must be referred promptly to the IEP team for a determination of special education eligibility when the pupil-study team recommendations are unsuccessful or the pupil-study team or parent suspects that the student has an underlying disability. The pupil study team process and the IEP team process must be clearly distinguishable.
If you have any questions concerning this case, student assessment or special education in general, please contact one of our offices.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
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