Senate Bill No. 744

Introduced by Senator Lara

February 22, 2013

An act to amend Sections 1981, 1983, 48660.1, 48662, and 48918 of, to add Sections 1981.5 and 48662.5 to, and to repeal Section 1981.2 of, the Education Code, relating to pupils.

LEGISLATIVE COUNSEL’S DIGEST

SB 744, as introduced, Lara. Pupils: involuntary transfer: county community schools and community day schools.

(1) Existing law authorizes a county board of education to establish and maintain one or more community schools into which the county board of education may enroll specified pupils, including, but not limited to, pupils who are expelled for specified reasons, referred as the result of the recommendation by a school attendance review board, probation referred, or homeless children.

This bill would revise the list of pupils who may be enrolled in a county community school to limit the kind of probation referrals and remove pupils who are referred as the result of the recommendation by a school attendance review board and homeless children. The bill would authorize a pupil to challenge a probation referral to a county community school to the juvenile court and request enrollment in another school.

(2) Existing law requires a county community school to prescribe an individually planned educational program based on an educational assessment for each pupil. Existing law requires the course of study of a county community school to be adopted by the county board of education to enable each pupil to continue academic work leading to the completion of a regular high school program.

This bill would require an individually planned educational program to include, but not be limited to, specified services. The bill would require a county community school to also provide supplemental instruction to pupils who do not demonstrate sufficient progress toward passing the high school exit examination.

(3) Existing law authorizes the governing board of a school district to establish one or more community day schools for pupils in any of kindergarten and grades 1 to 12, inclusive. Existing law authorizes the governing board of a school district to assign a pupil to a community day school only if the pupil meets specified conditions, including, but not limited to, being referred by a school attendance review board or other district-level referral process and being probation referred pursuant to specified law.

This bill would revise that list of conditions to limit the kind of probation referrals and remove a referral by a school attendance review board or other district level referral process. The bill would authorize a pupil to challenge a probation referral to a community day school to the juvenile court and request enrollment in another school.

(4) Existing law states the intent of the Legislature that community day schools include specified program components, including, but not limited to, individualized instruction and assessment.

This bill would provide that individualized instruction and assessment includes specified services and would add an additional program component relating to courses of study that enable each pupil to continue academic work leading to the completion of a regular high school program.

(5) This bill would provide a pupil enrolled in a county community school or a community day school the right to reenroll in his or her former school or another comprehensive school no later than 6 months after initial placement in the school, or immediately after completion of the expulsion period, whichever comes later, as long as the reenrollment is not inconsistent with any applicable conditions of the pupil’s probation or parole, as appropriate, thereby imposing a state-mandated local program. The bill would prohibit the pupil from being denied this reenrollment based on his or her failure to comply with any additional criteria imposed by a county board of education or school district beyond the terms of the expulsion order. The bill would prohibit the county board of education and the school district from adding additional academic or behavioral criteria or conditions that would extend the duration of the placement of a pupil in a county community school or a community day school beyond the terms of the expulsion order.

(6) Existing law requires the governing board of each school district to establish rules and regulations governing procedures for the expulsion of pupils. Existing law requires expulsion proceedings to be terminated and the pupil to be immediately reinstated and permitted to return to a classroom instructional program, any other instructional program, a rehabilitation program, or any combination of these programs if a hearing officer or administrative panel decides not to recommend expulsion.

This bill would require that the pupil be permitted to return only to the classroom instructional program from which the expulsion referral was made.

(7) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to these statutory provisions.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1981 of the Education Code is amended
to read:

1981.  

The county board of education may enroll in a
community school pupils who are any of the following:

(a) Expelled from a school district for any reason begin delete other than
those end delete specified in begin delete subdivision (a) or (c) of end delete Section 48915.

(b)  begin delete Referred to county community schools by a school district
as a result of the recommendation by a school attendance review
board or pupils end delete begin insert Pupils end insert whose school districts of attendance have,
at the request of the pupil’s parent or guardian, approved the pupil’s
enrollment in a county community school.

(c) (1)  begin delete Probation-referred end delete begin insert Probation referred end insert pursuant to
Sections begin delete 300, 601, 602, end delete begin insert 602 end insert and 654 of the Welfare and Institutions
Code.

(2) On probation or parole and not in attendance in any school.

begin delete

(3) Expelled for any of the reasons specified in subdivision (a)
or (c) of Section 48915.

end delete begin delete

(d) Homeless children.

end delete begin insert

(3) Referrals to a community school pursuant to this subdivision
shall be consistent with Section 48645.5. A pupil may challenge
the referral to the juvenile court and request enrollment in another
school.

end insert

SEC. 2.  

Section 1981.2 of the Education Code is repealed.

begin delete

1981.2.  

For purposes of this chapter, the term “homeless
children” means either of the following:

(a) A schoolaged child who lacks a fixed, regular, and adequate
nighttime residence.

(b) A schoolaged child who has a primary nighttime residence
that is any of the following:

(1) A supervised publicly or privately operated shelter designed
to provide temporary living accommodations.

(2) An institution that provides a temporary residence for
individuals intended to be institutionalized.

(3) A temporary, makeshift arrangement in the accommodations
of other persons.

(4) A public or private place not designed for, or ordinarily used
as, a regular sleeping accommodation for human beings.

end delete

SEC. 3.  

Section 1981.5 is added to the Education Code, to
read:

1981.5.  

(a) A pupil who is enrolled in a community school
shall have the right to reenroll in his or her former school or another
comprehensive school no later than six months after initial
placement in the community school, or immediately after
completion of the expulsion period, whichever comes later, as long
as the reenrollment is not inconsistent with any applicable
conditions of the pupil’s probation or parole.

(b) A pupil shall not be denied reenrollment in his or her former
school or another comprehensive school based on the pupil’s failure
to comply with any additional criteria imposed by a county board
of education beyond the terms of an order to expel issued pursuant
to Section 48916.

(c) The county board of education shall not add additional
academic or behavioral criteria or conditions that would extend
the duration of the placement of a pupil in a community school
beyond the terms of an order to expel issued pursuant to Section
48916.

SEC. 4.  

Section 1983 of the Education Code is amended to
read:

1983.  

(a) Pupils enrolled in county community schools shall
be assigned to classes or programs deemed most appropriate for
reinforcing or reestablishing educational development.

(b)  begin delete Such end delete begin insert These end insert classes or programs may include, but need not
be limited to, basic educational skill development, on-the-job
training, tutorial assistance, begin delete independent study requirements, end delete and
individual guidance activities.

(c) An individually planned educational program based upon
an educational assessment shall be prescribed for each pupil. begin insert This
program shall include, but not be limited to, all of the following: end insert

begin insert

(1) Efforts to continue a pupil’s relationships with school
personnel, including counselors from a pupil’s former school.

end insert begin insert

(2) Any medical or mental health needs.

end insert begin insert

(3) Access to appropriate services and programs specified in a
pupil’s individualized education program.

end insert begin insert

(4) Efforts to address the language access needs of pupils
identified as English learners.

end insert

(d) The course of study of a county community school shall be
adopted by the county board of education and shall enable each
pupil to continue academic work leading to the completion of a
regular high school program begin insert , including access to college
preparatory classes. Supplemental instruction shall also be
provided to pupils who do not demonstrate sufficient progress
toward passing the high school exit examination required pursuant
to Section 60851 end insert .

SEC. 5.  

Section 48660.1 of the Education Code is amended to
read:

48660.1.  

It is the intent of the Legislature that school districts
operating community day schools begin insert , end insert to the extent possible begin insert , end insert include
the following program components:

(a) School district cooperation with the county office of
education, law enforcement, probation, and human services
agencies personnel who work with at-risk youth.

(b) Low pupil-teacher ratio.

(c) Individualized instruction and begin delete assessment. end delete begin insert assessment, which
includes all of the following: end insert

begin insert

(1) Any medical or mental health needs.

end insert begin insert

(2) Appropriate services and programs specified in a pupil’s
individualized education program.

end insert begin insert

(3) Instruction to address the language access needs of pupils
identified as English learners.

end insert

(d) Maximum collaboration with school district support service
resources, including, but not limited to, school counselors and
psychologists, academic counselors, and pupil discipline personnel.

begin insert

(e) A course of study that enables each pupil to continue
academic work leading to the completion of a regular high school
program, including access to college preparatory classes.
Supplemental instruction should also be provided to pupils who
do not demonstrate sufficient progress toward passing the high
school exit examination required pursuant to Section 60851.

end insert

SEC. 6.  

Section 48662 of the Education Code is amended to
read:

48662.  

(a) The governing board of a school district that
establishes a community day school shall adopt policies that
provide procedures for the involuntary transfer of pupils to a
community day school.

(b) A pupil may be assigned to a community day school only
if he or she meets one or more of the following conditions:

(1) The pupil is expelled for any reason.

(2) The pupil is probation referred pursuant to begin delete Sections 300 and end delete
begin insert Section end insert 602 of the Welfare and Institutions Code. begin insert This referral
shall be consistent with Section 48645.5. A pupil may challenge
the referral to the juvenile court and request enrollment in another
school. end insert

begin delete

(3) The pupil is referred to a community day school by a school
attendance review board or other district level referral process.

end delete begin delete

(4)

end delete

begin insert (3) end insert  First priority for assignment to a community day school
shall be given to a pupil expelled pursuant to subdivision (d) of
Section 48915, second priority shall be given to pupils expelled
for any other reasons, and third priority shall be given for
placement to all other pupils pursuant to this section, unless there
is an agreement that the county superintendent of schools shall
serve any of these pupils.

SEC. 7.  

Section 48662.5 is added to the Education Code, to
read:

48662.5.  

(a) A pupil who is enrolled in a community day
school shall have the right to reenroll in his or her former school
or another comprehensive school no later than six months after
initial placement in the community day school, or immediately
after completion of the expulsion period, whichever comes later,
as long as the reenrollment is not inconsistent with any applicable
conditions of the pupil’s probation.

(b) A pupil shall not be denied reenrollment in his or her former
school or another comprehensive school based on the pupil’s failure
to comply with any additional criteria imposed by a school district
beyond the terms of an order to expel issued pursuant to Section
48916.

(c) The school district shall not add additional academic or
behavioral criteria or conditions that would extend the duration of
the placement of a pupil in a community day school beyond the
terms of an order to expel issued pursuant to Section 48916.

(d) Any school created for the purpose of enrolling pupils that
may be assigned to a community day school pursuant to Section
48662 shall follow the same procedures for the involuntary transfer
of pupils to a community day school set forth in this article.

SEC. 8.  

Section 48918 of the Education Code is amended to
read:

48918.  

The governing board of each school district shall
establish rules and regulations governing procedures for the
expulsion of pupils. These procedures shall include, but are not
necessarily limited to, all of the following:

(a)  begin insert (1) end insert begin insert   end insert The pupil shall be entitled to a hearing to determine
whether the pupil should be expelled. An expulsion hearing shall
be held within 30 schooldays after the date the principal or the
superintendent of schools determines that the pupil has committed
any of the acts enumerated in Section 48900, unless the pupil
requests, in writing, that the hearing be postponed. The adopted
rules and regulations shall specify that the pupil is entitled to at
least one postponement of an expulsion hearing, for a period of
not more than 30 calendar days. Any additional postponement may
be granted at the discretion of the governing board.

begin delete

Within

end delete

begin insert (2) end insert begin insert   end insert begin insert Within end insert 10 schooldays after the conclusion of the hearing,
the governing board shall decide whether to expel the pupil, unless
the pupil requests in writing that the decision be postponed. If the
hearing is held by a hearing officer or an administrative panel, or
if the begin delete district end delete governing board does not meet on a weekly basis,
the governing board shall decide whether to expel the pupil within
40 schooldays after the date of the pupil’s removal from his or her
school of attendance for the incident for which the recommendation
for expulsion is made by the principal or the superintendent, unless
the pupil requests in writing that the decision be postponed.

begin delete

If

end delete

begin insert (3) end insert begin insert   end insert begin insert If end insert compliance by the governing board with the time
requirements for the conducting of an expulsion hearing under this
subdivision is impracticable during the regular school year, the
superintendent of schools or the superintendent’s designee may,
for good cause, extend the time period for the holding of the
expulsion hearing for an additional five schooldays. If compliance
by the governing board with the time requirements for the
conducting of an expulsion hearing under this subdivision is
impractical due to a summer recess of governing board meetings
of more than two weeks, the days during the recess period shall
not be counted as schooldays in meeting the time requirements.
The days not counted as schooldays in meeting the time
requirements for an expulsion hearing because of a summer recess
of governing board meetings shall not exceed 20 schooldays, as
defined in subdivision (c) of Section 48925, and unless the pupil
requests in writing that the expulsion hearing be postponed, the
hearing shall be held not later than 20 calendar days begin delete prior to end delete begin insert before end insert
the first day of school for the school year. Reasons for the extension
of the time for the hearing shall be included as a part of the record
at the time the expulsion hearing is conducted. Upon the
commencement of the hearing, all matters shall be pursued and
conducted with reasonable diligence and shall be concluded without
any unnecessary delay.

(b) Written notice of the hearing shall be forwarded to the pupil
at least 10 calendar days begin delete prior to end delete begin insert before end insert the date of the hearing.
The notice shall include all of the following:

(1) The date and place of the hearing.

(2) A statement of the specific facts and charges upon which
the proposed expulsion is based.

(3) A copy of the disciplinary rules of the begin insert school end insert district that
relate to the alleged violation.

(4) A notice of the parent, guardian, or pupil’s obligation
pursuant to subdivision (b) of Section 48915.1.

(5) Notice of the opportunity for the pupil or the pupil’s parent
or guardian to appear in person or to be represented by legal
counsel or by a nonattorney adviser, to inspect and obtain copies
of all documents to be used at the hearing, to confront and question
all witnesses who testify at the hearing, to question all other
evidence presented, and to present oral and documentary evidence
on the pupil’s behalf, including witnesses. In a hearing in which
a pupil is alleged to have committed or attempted to commit a
sexual assault as specified in subdivision (n) of Section 48900 or
committing a sexual battery as defined in subdivision (n) of Section
48900, a complaining witness shall be given five days’ notice
before being called to testify, and shall be entitled to have up to
two adult support persons, including, but not limited to, a parent,
guardian, or legal counsel, present during their testimony. Before
a complaining witness testifies, support persons shall be
admonished that the hearing is confidential. begin delete Nothing in this end delete begin insert This end insert
subdivision shall begin insert not end insert preclude the person presiding over an
expulsion hearing from removing a support person whom the
presiding person finds is disrupting the hearing. If one or both of
the support persons is also a witness, the provisions of Section
868.5 of the Penal Code shall be followed for the hearing. This
section does not require a pupil or the pupil’s parent or guardian
to be represented by legal counsel or by a nonattorney adviser at
the hearing.

(A) For purposes of this section, “legal counsel” means an
attorney or lawyer who is admitted to the practice of law in
California and is an active member of the State Bar of California.

(B) For purposes of this section, “nonattorney advisor” means
an individual who is not an attorney or lawyer, but who is familiar
with the facts of the case, and has been selected by the pupil or
pupil’s parent or guardian to provide assistance at the hearing.

(c)  begin insert (1) end insert begin insert   end insert Notwithstanding begin delete Section 54593 of the Government
Code and end delete Section 35145, the governing board shall conduct a
hearing to consider the expulsion of a pupil in a session closed to
the public, unless the pupil requests, in writing, at least five days
before the date of the hearing, that the hearing be conducted at a
public meeting. Regardless of whether the expulsion hearing is
conducted in a closed or public session, the governing board may
meet in closed session for the purpose of deliberating and
determining whether the pupil should be expelled.

begin delete

If

end delete

begin insert (2) end insert begin insert   end insert begin insert If end insert the governing board or the hearing officer or administrative
panel appointed under subdivision (d) to conduct the hearing admits
any other person to a closed deliberation session, the parent or
guardian of the pupil, the pupil, and the counsel of the pupil also
shall be allowed to attend the closed deliberations.

begin delete

If

end delete

begin insert (3) end insert begin insert   end insert begin insert If end insert the hearing is to be conducted at a public meeting, and
there is a charge of committing or attempting to commit a sexual
assault as defined in subdivision (n) of Section 48900 or
committing a sexual battery as defined in subdivision (n) of Section
48900, a complaining witness shall have the right to have his or
her testimony heard in a session closed to the public when
testifying at a public meeting would threaten serious psychological
harm to the complaining witness and there are no alternative
procedures to avoid the threatened harm, including, but not limited
to, videotaped deposition or contemporaneous examination in
another place communicated to the hearing room by means of
closed-circuit television.

(d) Instead of conducting an expulsion hearing itself, the
governing board may contract with the county hearing officer, or
with the Office of Administrative Hearings of the State of
California pursuant to Chapter 14 (commencing with Section
27720) of Part 3 of Division 2 of Title 3 of the Government Code
and Section 35207, for a hearing officer to conduct the hearing.
The governing board may also appoint an impartial administrative
panel of three or more certificated persons, none of whom is a
member of the board or employed on the staff of the school in
which the pupil is enrolled. The hearing shall be conducted in
accordance with all of the procedures established under this section.

(e) Within three schooldays after the hearing, the hearing officer
or administrative panel shall determine whether to recommend the
expulsion of the pupil to the governing board. If the hearing officer
or administrative panel decides not to recommend expulsion, the
expulsion proceedings shall be terminated and the pupil
immediately shall be reinstated and permitted to return to begin delete a end delete begin insert the end insert
classroom instructional program begin delete , any other instructional program,
a rehabilitation program, or any combination of these programs.
Placement in one or more of these programs shall be made by the
superintendent of schools or the superintendent’s designee after
consultation with school district personnel, including the pupil’s
teachers, and the pupil’s parent or guardian end delete begin insert from which the
expulsion referral was made end insert . The decision not to recommend
expulsion shall be final.

(f)  begin insert (1) end insert begin insert   end insert If the hearing officer or administrative panel
recommends expulsion, findings of fact in support of the
recommendation shall be prepared and submitted to the governing
board. All findings of fact and recommendations shall be based
solely on the evidence adduced at the hearing. If the governing
board accepts the recommendation calling for expulsion,
acceptance shall be based either upon a review of the findings of
fact and recommendations submitted by the hearing officer or
panel or upon the results of any supplementary hearing conducted
pursuant to this section that the governing board may order.

begin delete

The

end delete

begin insert (2) end insert begin insert   end insert begin insert The end insert decision of the governing board to expel a pupil shall
be based upon substantial evidence relevant to the charges adduced
at the expulsion hearing or hearings. Except as provided in this
section, no evidence to expel shall be based solely upon hearsay
evidence. The governing board or the hearing officer or
administrative panel may, upon a finding that good cause exists,
determine that the disclosure of either the identity of a witness or
the testimony of that witness at the hearing, or both, would subject
the witness to an unreasonable risk of psychological or physical
harm. Upon this determination, the testimony of the witness may
be presented at the hearing in the form of sworn declarations begin delete which end delete
begin insert that end insert shall be examined only by the governing board or the hearing
officer or administrative panel. Copies of these sworn declarations,
edited to delete the name and identity of the witness, shall be made
available to the pupil.

(g) A record of the hearing shall be made. The record may be
maintained by any means, including electronic recording, so long
as a reasonably accurate and complete written transcription of the
proceedings can be made.

(h)  begin insert (1) end insert begin insert   end insert Technical rules of evidence shall not apply to the
hearing, but relevant evidence may be admitted and given probative
effect only if it is the kind of evidence upon which reasonable
persons are accustomed to rely in the conduct of serious affairs.
A decision of the governing board to expel shall be supported by
substantial evidence showing that the pupil committed any of the
acts enumerated in Section 48900.

begin delete

In

end delete

begin insert (2) end insert begin insert   end insert begin insert In end insert hearings begin delete which end delete begin insert that end insert include an allegation of committing
or attempting to commit a sexual assault as defined in subdivision
(n) of Section 48900 or committing a sexual battery as defined in
subdivision (n) of Section 48900, evidence of specific instances,
of a complaining witness’ prior sexual conduct is to be presumed
inadmissible and shall not be heard absent a determination by the
person conducting the hearing that extraordinary circumstances
exist requiring the evidence be heard. Before the person conducting
the hearing makes the determination on whether extraordinary
circumstances exist requiring that specific instances of a
complaining witness’ prior sexual conduct be heard, the
complaining witness shall be provided notice and an opportunity
to present opposition to the introduction of the evidence. In the
hearing on the admissibility of the evidence, the complaining
witness shall be entitled to be represented by a parent, guardian,
legal counsel, or other support person. Reputation or opinion
evidence regarding the sexual behavior of the complaining witness
is not admissible for any purpose.

(i) (1) Before the hearing has commenced, the governing board
may issue subpoenas at the request of either the superintendent of
schools or the superintendent’s designee or the pupil, for the
personal appearance of percipient witnesses at the hearing. After
the hearing has commenced, the governing board or the hearing
officer or administrative panel may, upon request of either the
county superintendent of schools or the superintendent’s designee
or the pupil, issue subpoenas. All subpoenas shall be issued in
accordance with Sections 1985, 1985.1, and 1985.2 of the Code
of Civil Procedure. Enforcement of subpoenas shall be done in
accordance with Section 11455.20 of the Government Code.

(2) Any objection raised by the superintendent of schools or the
superintendent’s designee or the pupil to the issuance of subpoenas
may be considered by the governing board in closed session, or in
open session, if so requested by the pupil before the meeting. Any
decision by the governing board in response to an objection to the
issuance of subpoenas shall be final and binding.

(3) If the governing board, hearing officer, or administrative
panel determines, in accordance with subdivision (f), that a
percipient witness would be subject to an unreasonable risk of
harm by testifying at the hearing, a subpoena shall not be issued
to compel the personal attendance of that witness at the hearing.
However, that witness may be compelled to testify by means of a
sworn declaration as provided for in subdivision (f).

(4) Service of process shall be extended to all parts of the state
and shall be served in accordance with Section 1987 of the Code
of Civil Procedure. All witnesses appearing pursuant to subpoena,
other than the parties or officers or employees of the state or any
political subdivision thereof, shall receive fees, and all witnesses
appearing pursuant to subpoena, except the parties, shall receive
mileage in the same amount and under the same circumstances as
prescribed for witnesses in civil actions in a superior court. Fees
and mileage shall be paid by the party at whose request the witness
is subpoenaed.

(j) Whether an expulsion hearing is conducted by the governing
board or before a hearing officer or administrative panel, final
action to expel a pupil shall be taken only by the governing board
in a public session. Written notice of any decision to expel or to
suspend the enforcement of an expulsion order during a period of
probation shall be sent by the superintendent of schools or his or
her designee to the pupil or the pupil’s parent or guardian and shall
be accompanied by all of the following:

(1) Notice of the right to appeal the expulsion to the county
board of education.

(2) Notice of the education alternative placement to be provided
to the pupil during the time of expulsion.

(3) Notice of the obligation of the parent, guardian, or pupil
under subdivision (b) of Section 48915.1, upon the pupil’s
enrollment in a new school district, to inform that district of the
pupil’s expulsion.

(k)  begin insert (1) end insert begin insert   end insert The governing board shall maintain a record of each
expulsion, including the cause begin delete therefor end delete begin insert for the expulsion end insert . Records
of expulsions shall be a nonprivileged, disclosable public record.

begin delete

The

end delete

begin insert (2) end insert begin insert   end insert begin insert The end insert expulsion order and the causes begin delete therefor end delete begin insert for the expulsion end insert
shall be recorded in the pupil’s mandatory interim record and shall
be forwarded to any school in which the pupil subsequently enrolls
upon receipt of a request from the admitting school for the pupil’s
school records.

SEC. 9.  

If the Commission on State Mandates determines that
this act contains costs mandated by the state, reimbursement to
local agencies and school districts for those costs shall be made
pursuant to Part 7 (commencing with Section 17500) of Division
4 of Title 2 of the Government Code.