BILL ANALYSIS Ó AB 1391 Page 1 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. AB 1391 Page 2 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 AB 1391 Page 3 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 AB 1391 Page 4 "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." AB 1391 Page 5 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 AB 1391 Page 6 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 AB 1391 Page 7 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 AB 1391 Page 8 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 AB 1391 Page 9 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 AB 1391 Page 10 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