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