BILL ANALYSIS Ó
AB 1391
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Date of Hearing: April 8, 2015
ASSEMBLY COMMITTEE ON EDUCATION
Patrick O'Donnell, Chair
AB 1391
(Gomez) - As Introduced February 27, 2015
[Note: This bill is doubled referred to the Assembly Judiciary
Committee and will be heard by that Committee as it relates to
issues under its jurisdiction.]
SUBJECT: Pupil instruction: adopted course of study for grades
1 to 6: physical education: complaints
SUMMARY: Modifies the physical education instructional minute
requirement for elementary schools serving students in grades
1-8 from 200 minutes each 10 schooldays to 400 minutes each 20
schooldays, makes complaints regarding compliance with that
requirement subject to the Uniform Complaint Procedures (UCP),
and states that the UCP shall be the adequate remedy at law for
such complaints. Specifically, this bill:
1)Modifies the physical education instructional minute
requirement for elementary schools serving students in grades
1-8 from 200 minutes each 10 schooldays to 400 minutes each 20
schooldays.
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2)Allows complaints regarding compliance with the adopted course
of study for grades 1-6 to be filed using the UCP. States
that a complainant not satisfied with the decision of a local
educational agency (LEA) may appeal the decision to the
Superintendent of Public Instruction (SPI) and receive a
written decision within 60 days.
3)Requires that, if a complaint is found to have merit, the LEA
must provide a remedy to all students, parents, and guardians.
4)States that the UCP shall be the adequate remedy at law for
allegations of noncompliance with the adopted course of study
for grades 1-6. States that this section shall not be
construed to create a private right of action, and states that
this is clarifying and declaratory of existing law, and shall
apply to any pending claim. States that nothing in this
subdivision shall restrict or expand the existing right of any
party to seek relief from noncompliance with this section
pursuant to a writ of mandate if that party has pursued and
exhausted the available administrative remedies.
EXISTING LAW:
1)Requires elementary schools with grades 1-8 to provide at
least 200 minutes of physical education every 10 schooldays,
exclusive of recess and lunch periods, and states that this
instruction shall have an emphasis on activities that may be
conducive to health and vigor of body and mind.
2)Through regulations, requires LEAs to adopt uniform complaint
procedures through which the public can register complaints
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regarding educational programs and rights. (California Code
of Regulations, Title 5, Section 4600 et seq).
3)Authorizes a modified complaint process known as "Williams
Complaints" through statute (Education Code § 35186) for
complaints regarding instructional materials, emergency or
urgent facilities conditions that pose a threat to the health
and safety of pupils, teacher vacancy or misassignment, and
instructional services provided to students who have not
passed the High School Exit Examination. Existing law also
authorizes complaints through the UCP for harassment,
intimidation, bullying, discrimination, unlawful pupil fees,
and violations of the law regarding Local Control
Accountability Plans (LCAPs).
FISCAL EFFECT: Legislative Counsel has keyed this bill as a
possible state-mandated local program.
COMMENTS:
Need for the bill. The author's office states, "The importance
of physical exercise, particularly for children, is well
documented. Physical exercise has significant health benefits,
from countering obesity and diabetes to promoting brain
development and academic achievement. While current law
requires a minimum amount of instructional time in P.E. for
pupils in grades 1 to 6, the law does not include any specific
recordkeeping mechanisms to document compliance with this
requirement.
A private attorney has exploited this oversight by filing a
class-action lawsuit against 37 school districts, using costly
and time-consuming litigation to supposedly enforce compliance.
A San Francisco Chronicle article describes the lawsuit as
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"unprecedented" and the circumstances of the case as "unusual if
not bizarre." The article notes that the named plaintiff was
recruited by the lawyer and hasn't had children in California
schools for 20 years. The bottom-line is that the lawyer behind
the case will earn more than $1 million in fees, and millions of
additional taxpayer dollars earmarked for education will instead
be wasted on legal costs incurred by the districts during the
lengthy and difficult process of trying to settle the
litigation. It is likely that many more school districts will
be threatened with similar litigation and demands for attorneys'
fees.
From a legal standpoint, the basis for the litigation is a Court
of Appeal ruling, Doe v. Albany Unified School District (2010)
190 Cal. App. 4th 668. The court ruled even if the P.E. minutes
statute does not create an explicit right of action, a plaintiff
could bring a civil action through a writ of mandate if they can
allege that there is no other adequate remedy at law to resolve
allegations of non-compliance. The Court noted that the
availability of an adequate administrative remedy was not clear
in that case, and allowed the case to go forward. That case was
used as the basis for the class-action litigation against the
school districts, and the subsequent demand for attorneys' fees.
AB 1391 utilizes the existing Uniform Complaint Procedures set
forth in the Education Code and Title 5 regulations to provide a
straightforward, administrative process to resolve allegation of
non-compliance with the P.E. instructional minutes requirement.
The author intends to retain the same current overall
requirements for PE minutes. The proposed change to 400 minutes
over 20 days (as opposed to 200 minutes over 10 days) gives
school districts the flexibility to meet local challenges such
as poor air quality that could adversely affect student health,
extreme weather, etc. This bill does not diminish the current
overall P.E. minute requirement."
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Arguments in opposition. The California Association for Health
Physical Education Recreation and Dance (CAHPERD) writes, "The
state should strengthen, not weaken, quality physical education
for all public school students. CAHPERD opposes AB 1391 because
of the research-based negative impact this bill will have on the
health, well-being, economic costs, and academic achievement of
California elementary schools students, particularly black and
Hispanic students and low income students.
Under the flexibility of the current Education Code, California
elementary school students can be deprived of physical education
for more than a week, but not more than two weeks. If AB 1391
were passed, California elementary students could be deprived of
physical education for more than three weeks in a row! AB 1391
is contra-indicated by all current research relating to the need
for daily physical education for elementary school children, and
it simply does not make sense from the perspective of health and
academic performance for elementary school children,
particularly our children most at risk.
Half the districts audited in California from 2005 to 2009 did
not comply with the minutes requirement in elementary schools,
and public records document that the problem persists today. A
peer reviewed journal article and other experience documents
that districts exaggerate compliance. The San Francisco Unified
School District master schedules claimed that 83% of schools
complied with physical education requirements. Teachers' actual
schedules showed 20% met the mandate. In fact, on site
observation demonstrated that only 5% were in compliance."
Committee amendments. Staff recommends that the following three
amendments be adopted:
1) To correct a drafting error, staff recommends that the bill
be amended to make only complaints regarding the physical
education instructional minutes requirement (not the entire
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course of study for grades 1-6) subject to the UCP.
2) To correct a drafting error, staff recommends that the bill
be amended to make complaints regarding the physical education
minutes requirement at elementary schools serving students in
grades 1-8 subject to the UCP, as well as related language to be
heard in the Assembly Committee on Judiciary.
3) Staff recommends that the bill be amended to remove the
provisions of this bill which allow physical education minutes
to be taught for 400 minutes each 20 schooldays, instead of 200
minutes each 10 days.
The UCP, Williams Complaints, and fee, bullying, and LCAP
complaints. 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 UCP is
used for complaints regarding a number of state and federal
programs, including Adult Education, After School Education and
Safety, Agricultural Vocational Education, American Indian
Education Centers and Early Childhood Education Program
Assessments, Child Care and Development, Child Nutrition, Foster
Youth Services, some federal No Child Left Behind Act (2001)
programs, Regional Occupational Centers and Programs, Special
Education, State Preschool, and Tobacco-Use Prevention
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Education.
In addition, complaints may be filed under the UCP regarding
discrimination, harassment, bullying, intimidation, unlawful
pupil fees, certain charter school requirements, and violations
of the law establishing Local Control Accountability Plans
(LCAPs).
Complaints made under the UCP may be filed by an individual,
public agency, or organization. Not all matters of educational
law are covered by the UCP (complaints regarding the federal
school lunch program, for example, are filed with the U.S.
Department of Agriculture), but LEAs may use the UCP if they so
choose to process some other complaints. CDE monitors for
compliance with the UCP through its compliance monitoring
activities.
The 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 LEA within
60 days
c) If elected, an appeal by the complainant to the CDE
within 15 days of receiving the LEA response
d) The response by the CDE to the appeal, with the
investigation completed with 60 days
e) If eligible and elected, a request for reconsideration
by the complainant or LEA within 35 days of receiving CDE's
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response to the appeal
f) A response by the CDE within 35 days
A modified process for complaints was established by legislation
implementing part of the settlement of the Eliezer Williams, et
al., vs. State of California, et al. case (SB 2727, Chapter 903,
Statutes of 2004). These complaints are known as "Williams
Complaints" and address specific conditions of education,
including instructional materials, emergency or urgent facility
conditions, and teacher vacancy or misassignment, as well as the
provision of services to students who have not passed the High
School Exit Examination (added by subsequent legislation).
These complaints may be filed anonymously. LEAs are required to
remedy valid complaints within 30 days and report to
complainants within 45 days. Except for complaints regarding
emergency facility issues, there is no right of appeal to the
CDE.
Complaints regarding pupil fees, harassment, discrimination,
bullying, intimidation, LCAPs 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.
Related legislation this session. AB 412 (Chavez), as proposed
to be amended, would require complainants to first use the UCP
regarding the physical education minute requirement before
pursuing litigation. AB 379 (Gordon), which was approved by
this Committee on March 25th, would make complaints alleging
violations of certain educational rights afforded to students in
foster care and students who are homeless subject to the Uniform
Complaint Procedures (UCP), and establishes an expedited process
for complaints regarding certain rights and on behalf of certain
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students.
REGISTERED SUPPORT / OPPOSITION:
Support
California School Boards Association (sponsor)
Association of California School Administrators
California Association of School Business Officials
Kern County Superintendent of Schools
Los Angeles Unified School District
Oakland Unified School District
Paramount Unified School District
Riverside County Superintendent of Schools
San Diego County Office of Education
San Francisco Unified School District
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Opposition
California Association for Health Physical Education Recreation
and Dance
Public Advocates (oppose unless amended)
Cal200
The City Project
1 individual
Analysis Prepared by:Tanya Lieberman / ED. / (916) 319-2087