BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON EDUCATION
                              Senator Carol Liu, Chair
                                2015 - 2016  Regular 

          Bill No:              AB 302            
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          |Author:    |Cristina Garcia                                      |
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          |Version:   |June 1, 2015                                Hearing  |
          |           |Date:   July 8, 2015                                 |
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          |Urgency:   |No                     |Fiscal:    |Yes             |
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          |Consultant:|Lynn Lorber                                          |
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          Subject:  Pupil services:  lactation accommodations

            SUMMARY
          
          This bill requires local educational agencies to provide  
          reasonable accommodations to a lactating pupil on a school  
          campus to express breast milk, breast-feed an infant child, or  
          address other needs related to breast-feeding, and expands the  
          Uniform Complaint Procedures to include complaints of  
          noncompliance with this requirement.

            BACKGROUND
          
          Existing federal law:

          1)The Patient Protection and Affordable Care Act, amended the  
            Fair Labor Standards Act to require employers to provide a  
            reasonable break time and a place which is not a bathroom to  
            express breast milk.  (United States Code, Title 42, 18001, §  
            4207, et seq.)

          2)Prohibits discrimination against any student, or exclusion of  
            any student from its education program or activity, including  
            any class or extracurricular activity, on the basis of such  
            student's pregnancy, childbirth, false pregnancy, termination  
            of pregnancy or recovery therefrom.  Federal law also requires  
            pregnant students and those recovering from childbirth-related  
            conditions to be provided with the same accommodations and  
            support services available to other students with temporary  
            medical conditions.  (Code of Federal Regulations, Title 34,  







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            §106.40)

          Existing state law:

          1)Requires every employer, including the state and any political  
            subdivision, to provide a reasonable amount of break time to  
            accommodate an employee desiring to express breast milk for  
            the employee's infant child.  The break time must, if  
            possible, run concurrently with any break time already  
            provided to the employee.  Break time for an employee that  
            does not run concurrently with the rest time authorized for  
            the employee is to be unpaid.  (Labor Code § 1030)

          2)Requires employers to make reasonable efforts to provide the  
            employee with the use of a room or other location, other than  
            a toilet stall, in close proximity to the employee's work  
            area, for the employee to express milk in private.  The room  
            or location may include the place where the employee normally  
            works if it otherwise meets the requirements of this section.   
            (Labor Code § 1031)

          3)Prohibits discriminatory practices in employment or housing  
            accommodations on the basis of sex, and defines "sex" to  
            include breast-feeding or medical conditions related to  
            breast-feeding.  (Government Code §12926)

          4)Defines "harassment and other discrimination on the basis of  
            sex" to include specified practices such as the exclusion of  
            any person from any program or activity or employment because  
            of pregnancy or related conditions.  (Education Code § 230)

          5)Through regulation, requires local educational agencies to  
            adopt uniform complaint procedures through which the public  
            can register complaints regarding educational programs and  
            rights.  (California Code of Regulations, Title 5, § 4600, et  
            seq.)  

            ANALYSIS
          
          This bill requires local educational agencies to provide  
          reasonable accommodations to a lactating student on a school  
          campus.  Specifically, this bill:

          1)Requires schools operated by school districts, county offices  








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            of education, the California School for the Deaf and the  
            California School for the Blind, and charter schools to  
            provide reasonable accommodations to lactating students to  
            express breast milk, breast-feed, or address other needs  
            related to breast-feeding.

          2)Provides that reasonable accommodations include, but are not  
            limited to:

             a)   Access to a private and secure room, other than a  
               restroom, to express breast milk or breast-feed a child.

             b)   Permission to bring a breast pump and any other  
               equipment used to express breast milk onto a high school  
               campus.

             c)   Access to a power source for a breast pump or any other  
               equipment used to express breast milk.

             d)   Access to a place to store breast milk safely.

          3)Requires a lactating student to be provided a reasonable  
            amount of time to accommodate her need to express breast milk  
            or breast-feed.

          4)Requires local educational agencies (LEAs) to provide the  
            reasonable accommodations only if there is at least one  
            lactating student on the school campus.

          5)Authorizes LEAs to use existing facilities to meet the  
            requirements for providing reasonable accommodations. 

          6)Provides that a student is not to incur an academic penalty as  
            a result of her use, during the schoolday, of the reasonable  
            accommodations, and requires that the student be provided the  
            opportunity to make up any work missed due to such use.


          7)Authorizes a complaint of non-compliance with the requirement  
            to provide reasonable accommodations to be filed with a LEA  
            under the existing Uniform Complaint Procedures (UCP).

          8)Requires a local educational agency (LEA) to respond to a  
            complaint in accordance with the existing Uniform Complaint  








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            Procedures (UCP) process.

          9)Authorizes a complainant who is not satisfied with the  
            decisions of a LEA to appeal the decision to the California  
            Department of Education (CDE) through the existing UCP appeal  
            process, and requires that the complainant receive a written  
            decision regarding the appeal within 30 days of CDE's receipt  
            of the appeal.  

          10)Requires the LEA to provide a remedy to the affected student  
            if the LEA or the Superintendent of Public Instruction finds  
            merit in a complaint.

          STAFF COMMENTS
          
          1)Need for the bill.  According to the author, "A 2015 report  
            published by American Civil Liberties Union (ACLU) of  
            California, Breaking Down Educational Barriers for  
            California's Pregnant and Parenting Students, found that some  
            lactating students were discouraged by school administrators  
            from expressing milk at school.  The report also found that,  
            even when a student's request to pump milk at school was  
            granted, a student may not have access to a private, secure  
            room or refrigerator to safely store the breast milk.  Not  
            providing a private, secure room and a consistent pumping  
            schedule for lactating students could cause significant pain  
            and discomfort to these students and potentially lead to  
            breast infections, as well as causing embarrassing leakage  
            issues and general distress."

          2)Existing rights for employees but not for students.  Both  
            state and federal law require employers to provide reasonable  
            accommodations to lactating employees, including break time  
            and the provision of private space (other than a restroom  
            stall) in which to express breast milk or breast-feed.   
            Existing law prohibits discriminatory practices in employment  
            or housing accommodations on the basis of sex, and defines  
            "sex" to include breast-feeding or medical conditions related  
            to breast-feeding.  Title IX prohibits discrimination on the  
            basis of sex in all aspects of education, but does not  
            explicitly reference breast-feeding.

          This bill generally mirrors state and federal requirements that  
            employees be provided reasonable accommodation to express  








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            breast milk or breast-feed.  This bill authorizes LEAs to use  
            an existing facility to meet the requirements of this bill.   
            Therefore, schools should not have to designate a space for  
            students beyond what they have already established for  
            employees.  

          3)Uniform Complaint Procedures (UCP).  Required by federal law,  
            the UCP was established in 1991 as a means of creating a  
            "uniform system of complaint processing" for educational  
            programs. The authority for this process is located in  
            regulations, not state statute.  These regulations require the  
            adoption of the UCP by school districts, county offices of  
            education, charter schools receiving federal funds, 

            and local public or private agencies which receive direct or  
            indirect state funding to provide school programs or special  
            education or related services.  The Uniform Complaint  
            Procedures (UCP) process generally involves the following  
            steps:

          a)   The filing of a complaint by an individual, agency, or  
               organization.

          b)   The investigation and written response by the local  
               educational agency (LEA) within 60 days.

          c)   An appeal by the complainant to the California Department  
               of Education (CDE) within 15 days of receiving the LEA  
               response.

          d)   The response by the CDE to the appeal, with the  
               investigation completed within 60 days.

          e)   A request for reconsideration by the complainant or LEA  
               within 35 days of receiving CDE's response to the appeal.

          f)   A response by the CDE within 35 days.

            Complaints regarding pupil fees, harassment, discrimination,  
            bullying, intimidation, local control accountability plans and  
            some charter school requirements generally follow the UCP, but  
            differ slightly in terms of timelines, anonymity of  
            complainants, confidentiality, and with whom a complaint can  
            be filed.  








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            There are several bills that expand the UCP to authorize  
            complaints in other areas of education; all use the existing  
            UCP process.  However, this bill requires the California  
            Department of Education (CDE) to respond to an appeal within  
            30 days of the CDE's receipt of the appeal, while existing law  
            provides a 60-day timeline. To ensure consistency and that the  
            existing UCP process is used, staff recommends an amendment to  
            delete the accelerated appeal timeline of 30 days and specify  
            the existing 60-day timeline is to be utilized.  

          4)Fiscal impact.  According to the Assembly Appropriations  
            Committee, this bill would impose:

          a)   Unknown, likely minor, Proposition 98/General Fund state  
               mandated costs for schools to provide reasonable  
               accommodations to breastfeeding students using existing  
               facilities.

          b)   Unknown, likely minor, Proposition 98/General Fund state  
               mandated costs related to the expansion of the UCP.  The  
               existing UCP mandate is currently included in the K-12  
               Mandate Block Grant.  If the Commission on State Mandates  
               determines the requirements of this bill impose a higher  
               level of service, this could place pressure on the  
               Legislature to increase funding under the K-12 Mandate  
               Block Grant.



          5)Related legislation.  

            AB 379 (Gordon, 2015) expands the Uniform Complaint Procedures  
            (UCP) to include complaints of non-compliance with certain  
            rights and responsibilities regarding the education of  
            students who are in foster care or who are homeless, including  
            school placement decisions, responsibilities of foster youth  
            liaisons, 
            provisions regarding school transfers, exemption from  
            locally-imposed graduation requirements, and the awarding of  
            partial credit for completed coursework.  AB 379 is pending in  
            the Senate Appropriations Committee.

            AB 1391 (Gomez, 2015) an urgency measure, expands the Uniform  








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            Complaint Procedures (UCP) to include complaints of  
            non-compliance with the required minimum instructional minutes  
            for physical education.  AB 1391 is pending in the Senate  
            Appropriations Committee.

            AB 412 (Chavez, 2015) authorizes complaints of non-compliance  
            with the required minimum instructional minutes for physical  
            education to be filed with a local complaint process or  
            through the UCP.  AB 412 was never heard.  

            AB 1012 (Jones-Sawyer, 2015) prohibits a school district from  
            assigning any students in grades 7-12 to any "course period  
            without educational content" for more than one week in any  
            semester, or to a course that the student has previously  
            completed with a grade sufficient to meet the A-G requirements  
            and graduation requirements, unless specifically authorized.   
            AB 1012 also expands the UCP to include complaints of  
            noncompliance with these requirements.  AB 1012 is scheduled  
            to be heard by this Committee on July 8.

            SB 81 (Committee on Budget and Fiscal Review, Ch. 22, 2015)  
            among other things, expands the UCP to include complaints  
            regarding an alleged violation by a local agency of federal or  
            state law or regulations governing adult education programs or  
            regional occupational centers and programs.  

            SB 425 (Hernandez, 2015) among other things, expands the UCP  
            to include complaints regarding an alleged violation by a  
            local agency of federal or state law or regulations governing  
            adult education programs or regional occupational centers and  
            programs, including allegations of unlawful discrimination,  
            harassment, intimidation, or bullying.  SB 425 is pending in  
            the Assembly Higher Education Committee.

            AB 907 (Burke, 2015) is nearly identical to SB 425.  AB 907 is  
            pending in this Committee.

            SUPPORT
          
          ACCESS Women's Health Justice
          American Congress of Obstetricians and Gynecologists
          American Federation of State, County and Municipal Employees
          Association of California School Administrators
          California Association for Health, Physical Education,  








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          Recreation and Dance
          California Black Health Network
          California Immigrant Policy Center
          California Latinas for Reproductive Justice
          California Teachers Association
          Citizens for Choice
          Coalition of California Welfare Rights Organizations
          Forward Together
          Guam Communications Network
          Latino Coalition for a Health California
          Latino Health Alliance
          NARAL Pro-Choice California
          National Center for Youth Law
          National Council of Jewish Women, Los Angeles
          National Council of La Raza
          Our Family Coalition
          Planned Parenthood Affiliates of California
          San Francisco Democratic Women in Action
          URGE: Unite for Reproductive and Gender Equity

            OPPOSITION
           
           None received.

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