BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Alan Lowenthal, Chair
2011-2012 Regular Session
BILL NO: AB 1909
AUTHOR: Ammiano
AMENDED: June 13, 2012
FISCAL COMM: No HEARING DATE: June 20, 2012
URGENCY: No CONSULTANT:Lynn Lorber
NOTE : This bill has been referred to the Committees on
Education and
Human Services. A "do pass" motion should include referral
to the Committee
on Human Services.
SUBJECT : Foster youth: notification of suspension and
expulsion proceedings.
SUMMARY
This bill requires schools to notify a foster youth's
attorney and representative of the county child welfare
agency of pending expulsion or other disciplinary
proceedings.
BACKGROUND
Current law:
1) Requires each school district to designate a staff
person as the educational liaison for foster children.
The educational liaison is required to, among other
things, ensure and facilitate proper educational
placement, enrollment in school and checkout from
school, and assist foster children when transferring
schools in ensuring proper transfer of credits, records
and grades. (Education Code § 48853.5)
2) Prohibits a pupil from being suspended or recommended
for expulsion unless the principal of the school
determines that the pupil has committed certain acts,
and gives schools the discretion to take action for most
offenses. (EC § 48900)
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Discretion to suspend
Schools may suspend a pupil for violating any number of acts,
some of which include:
1) Attempting to cause or threatening to cause physical
injury to another person. (Expulsion must be
recommended for causing serious physical injury.) (EC §
48915)
2) Being under the influence of a controlled substance.
(Expulsion must be recommended for possession or the
sale of controlled substances.)
(EC § 48915)
3) Caused or attempted to cause damage to school property.
4) Possessed or used tobacco.
5) Committed an obscene act or engaged in habitual
profanity or vulgarity.
6) Possessed, offered, arranged or negotiated to sell drug
paraphernalia.
7) Engaged in, or attempted to engage in, hazing.
8) Disrupting school activities or otherwise willfully
defying the valid authority of supervisor, teachers,
administrators, school officials, or other school
personnel engaged in the performance of their duties.
(EC § 48900(k))
9) Engaged in an act of bullying. (EC § 48900, § 48900.2,
§ 48900.3,
§ 48900.4, § 48900.7)
Pupils may be suspended for a first offense if the school
principal determines that the pupil's presence causes a
danger to persons or property or threatens to disrupt the
instructional process or the pupil committed certain acts.
(EC § 48900.5)
Subjective decision
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School may expel pupils for various offenses upon finding
either of the following:
1) Other means of correction are not feasible or have
repeatedly failed to bring about proper conduct.
2) Due to the nature of the violation, the presence of the
pupil causes a continuing danger to the physical safety
of the pupil or others.
(EC § 48915(e))
Mandatory suspension and recommendation for expulsion
School principals are required to immediately suspend, and
recommend expulsion of, a pupil who has committed any of the
following acts at school or a school activity off school
grounds:
1) Possessing, selling, or furnishing a firearm. (This is
consistent with the federal Gun-Free Schools Act.)
2) Brandishing a knife at another person.
3) Unlawfully selling a controlled substance.
4) Committing or attempting to commit a sexual assault.
5) Possession of an explosive. (EC § 48915(c))
Pupils with exceptional needs
Schools are authorized to suspend or expel an individual with
exceptional needs in accordance with federal law. If a pupil
with an individualized education program (IEP) exhibits
behavior problems, the IEP team must make a determination if
the behavior is a manifestation of the disability and whether
the strategies in the IEP are effective to address the
behavior. If it is determined that the IEP is ineffective, a
functional analysis assessment must be conducted, and
typically the IEP is then amended to include a behavior
intervention plan. (EC § 48915.5, § 56523, and California
Code of Regulations Title 5, § 3052)
Decision to suspend
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The governing board of a school district is required, unless
a request has been made to the contrary, to hold closed
sessions if the board is considering suspending or taking
other disciplinary action (other than expulsion) if a public
hearing would lead to the release of confidential
information. School districts are required to notify, in
writing, the pupil and the pupil's parent of the intent to
call and hold a closed session. (EC § 48912)
Expulsion hearing
Pupils are entitled to a hearing to determine whether the
pupil should be expelled. The expulsion hearing must be held
within 30 schooldays after the date the principal or
superintendent determines that the pupil has committed acts
that could warrant expulsion. (EC § 48918(a))
Schools are required to send written notice of an expulsion
hearing to the pupil and parent at least 10 calendar days
prior to the date of the expulsion hearing. The notice must
include, among other things, the following information:
a) Date and place of the hearing.
b) Statement of the specific facts and charges
upon which the proposed
expulsion is based.
c) A copy of the disciplinary rules of the
district that related to the alleged
violation.
d) The opportunity for the pupil or the pupil's
parent to appear in person or to be
represented by legal counsel or by a non-attorney
adviser. (EC § 48918(b))
Foster youth
Current law requires the court to appoint counsel for a child
who is not represented by counsel unless the court finds that
the child would not benefit from the appointment of counsel.
The counsel may be a district attorney, public defender, or
other member of the bar provided that he or she does not
represent another party or county agency whose interests
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conflict with the child's interests. The primary
responsibility of counsel is to advocate for the protection,
safety and physical and emotional well-being of the foster
child. (Welfare and Institutions Code § 317(c))
The case plan for each child placed in foster care must
contain a summary of health and education information or
records of the child, including, among other things, the
names and addresses of the child's health, dental, and
education providers. (WIC § 16010(a))
ANALYSIS
This bill requires schools to notify a foster youth's
attorney and representative of the county child welfare
agency (typically the foster youth's social worker) of
pending expulsion or other disciplinary proceedings.
Specifically, this bill:
1) Requires the educational liaison, or another employee
designated by the superintendent of the school district,
to notify a foster child's attorney and the appropriate
representative of the county child welfare agency, of
pending expulsion proceedings, pending proceedings to
extend a suspension, and if the child is an individual
with exceptional needs, pending manifestation
determinations.
2) Authorizes school districts to provide written notice of
an expulsion hearing, if the decision to recommend
expulsion is mandatory and the pupil is a foster child,
to the pupil's attorney and an appropriate
representative of the county child welfare agency at
least 10 calendar days before the date of the hearing.
3) Requires the counsel for a foster youth, if the list of
educational liaisons is available on the website of the
California Department of Education, to provide, on at
least an annual basis, his or her contact information to
the educational liaisons of each school district serving
his or her clients in the county of the court's
jurisdiction.
4) Encourages counsel to provide his or her contact
information to education liaisons of school districts in
other counties that serve his or her clients.
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5) Authorizes, if the counsel is part of a firm or
organization representing foster youth, the firm or
organization to provide contact information in lieu of
contact information for individual counsel. The firm or
organization may designate a person or persons within
the firm or organization to receive communications from
educational liaisons.
6) Authorizes the notification currently required regarding
foster youth placed in a licensed children's institution
to include the name and contact information for a
representative of the placing agency who can communicate
with the child's school district and child's attorney
about educational matters.
7) Authorizes the health and education summary for a foster
youth to include the name and contact information for
the educational liaison of the child's school district.
STAFF COMMENTS
1) Need for the bill . According to the author, "Foster
youth are more likely to exhibit emotional and
behavioral problems than their non-foster peers, which
often impact their school behavior. Children and youth
in foster care receive disproportionate levels of
discipline in relation to their non-foster peers and are
more likely to be suspended or expelled from school.
Although foster youth are more likely to have behavioral
issues and receive school discipline, they do not
receive the same level of adult support as their
non-foster peers in disciplinary situations. Existing
law requires that a parent is notified when their child
faces expulsion or is subject to a manifestation
determination meeting. Because foster youth often
change homes and the adult responsible for the education
also shifts, it is difficult for the school to identify
the appropriate adult to contact if discipline problems
arise. AB 1909 would close this communication gap
between the school and those responsible for the foster
youth's welfare."
2) Disciplinary meetings and hearings. There are many types
of disciplinary meetings that take place ranging from
parent-teacher-student conferences to expulsion
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hearings. This bill addresses expulsion hearings,
extended suspension meetings, and individualized
education program (IEP) meetings regarding a
manifestation determination.
a) Expulsion hearings : School districts are
required to hold an expulsion hearing for a pupil
prior to making a final decision to expel the
pupil. Districts are authorized to hold these
hearings in various ways; some governing boards
conduct the hearings on their own, while others may
appoint an impartial administrative panel of three
or more certificated persons or contract with the
county hearing officer or with the Office of
Administrative Hearings. These hearings are closed
to the public unless the pupil follows specific
procedures to request otherwise. Whether the
hearing is closed or open to the public, the
governing board may hold a closed deliberation
session during the hearing. Current law allows for
the parent or guardian, the pupil and, if the pupil
has counsel, the pupil's counsel to attend the
closed deliberation. The governing board,
administrative panel or hearing officer must
determine whether to recommend expulsion of the
pupil within three schooldays after the hearing.
If expulsion is recommended, the
governing board's final decision must be based upon
substantiated evidence of the charges made against
the pupil at the expulsion hearing.
b) Extended suspension meetings . In cases where
expulsion from any school or suspension for the
reminder of the semester from continuation school
is being considered by a school district, the
district superintendent may extend the suspension
until the district board has rendered a decision.
However, an extension may be granted only the
superintendent determines, following a meeting with
the pupil and the pupil's parent or guardian, that
the presence of the pupil at the school or in an
alternative school placement would not cause a
danger to persons or property or a threat of
disrupting the instructional process.
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c) Manifestation determination . IEP team
meetings making a manifestation determination are
held only for pupils with exceptional needs to
determine whether the behavior leading to the
pending disciplinary action was a manifestation of
the pupil's disability. These meetings are
required to be held for pupils with exceptional
needs in compliance with the federal Individuals
with Disabilities Education Act and call for the
meeting of all individuals regularly involved in
the pupil's IEP team meetings, which do not
specifically include a pupil's counsel or county
child welfare worker.
3) Education rights holder . This bill does not
specifically require notification of the person who
holds the right to make educational decisions for the
foster youth, which may not be the parent or guardian
(biological or foster parent). This issue is not easily
resolved due to the many different references to
"parent" and the context of those references. For
example, the definition of "pupil" in the article
relating to suspension and expulsion includes a parent.
While adding education rights holder to the provisions
of this bill is possible, concern has been raised that
doing so could imply that other notifications not
specifically including education rights holder would
preclude notification of the education rights holder.
There is considerable interest in pursuing this issue in
the next legislative session.
4) Mandatory v. discretionary expulsion . Current law
requires the expulsion of pupils for some acts and gives
discretion to schools relative to other acts. This bill
requires the notification of the county child welfare
agency and counsel regarding expulsion hearings where
expulsion is discretionary, and authorizes (but does not
require) notification for hearings where expulsion is
mandatory. This appears reasonable because there is no
opportunity for negotiations regarding mandatory
expulsions while the presence of a foster youth's
attorney and social worker at hearings where expulsion
is discretionary may have a positive impact on the
outcome of that decision.
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5) Related legislation . SB 1088 (Price) requires school
districts to conduct a second review for the readmission
of pupils who have been expelled and denied readmission,
and prohibits a school from denying enrollment or
readmission to pupils solely on the basis that he or she
has had contact with the juvenile justice system. SB
1088 is scheduled to be heard by the Assembly Education
Committee on June 27.
SB 1235 (Steinberg) requires schools that have suspended more
than 25% of the school's enrollment or more than 25% of
any numerically significant racial or ethnic subgroup of
the school's enrollment in the prior school year to
implement, for at least three years, at least one
specified strategies to reduce the suspension rate or
disproportionality. SB 1235 is scheduled to be heard by
the Assembly Education Committee on June 27.
AB 1729 (Ammiano) authorizes the documentation of means of
correction other than suspension and alternatives to
suspension or expulsion that are age appropriate and
designed to address the pupil's specific misbehavior;
and, defines means of correction other than suspension.
AB 1729 is scheduled to be heard by this Committee on
June 27, 2012.
AB 1732 (Campos) identifies conduct that would constitute a
post on a social media website, relative to
cyberbullying. AB 1732 is pending on the Senate Floor.
AB 2032 (Mendoza) requires charter schools to be subject to
the same suspension and expulsion provisions as other
public schools. AB 2032 was held on the Assembly
Appropriations Committee's suspense file.
AB 2145 (Alejo) relates to the disaggregation of suspension
and expulsion data by subgroup, and the reporting and
availability of suspension and expulsion data. AB 2145
is scheduled to be heard by this Committee on June 27,
2012.
AB 2242 (Dickinson) prohibits pupils who are found to have
disrupted school activities or otherwise willfully
defied the authority of school or school district
officials from being subject to extended suspension, or
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recommended for expulsion or expelled. AB 2242 is
scheduled to be heard by this Committee on June 27,
2012.
AB 2300 (Swanson) requires school districts to expunge
from a pupil's records a suspension for certain acts if
the pupil completes five hours of community service. AB
2300 was held on the Assembly Appropriations Committee's
suspense file.
AB 2537 (V. Manuel Perez) makes changes relative to
mandatory expulsions. AB 2537 is scheduled to be heard
by this Committee on June 27, 2012.
SUPPORT
Alameda County Foster Youth Alliance
American Civil Liberties Union
California Communities United Institute
California Probation, Parole and Correctional Association
California Teachers Association
Chief Probation Officers of California
Children Now
Fight Crime: Invest in Kids
Lambda Legal
Mexican American Legal Defense and Educational Fund
National Association of Social Workers, California Chapter
PolicyLink
Public Counsel Law Center
San Francisco Unified School District
Superintendent of Public Instruction
An individual
OPPOSITION
None on file.