BILL ANALYSIS Ó
AB 1391
Page 1
Date of Hearing: April 28, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 1391
(Gomez) - As Amended April 20, 2015
As Proposed to be Amended
SUBJECT: physical education: complaints
KEY ISSUE: May a person alleging that a school DISTRICT HAS not
complied with mandatory physical education requirements use AN
ADMNINISTRATIVE COMPLAINT PROCEDURE, so long as the person
retains any existing right to enforce compliance by writ of
mandate?
SYNOPSIS
This bill is a response to recent litigation involving mandatory
physical education requirements in the elementary schools.
Existing law requires schools to provide physical education,
with an emphasis on physical activity, for a total period of not
less than 200 minutes each 10 school days. This bill, as
originally introduced, would have modified that requirement to
not less than 400 minutes each 20 school days, but the author
amended the bill to restore the original requirement.
Therefore, the only issue that remains for this Committee to
consider is whether complaints alleging a violation of the
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physical education requirement should have the option of using
an existing administrative complaint process or seeking a writ
of mandate through the courts. Under existing law, certain
complaints against a school district or local educational agency
may be brought under a Uniform Complaint Procedure (UPC).
However, complaints involving course of study requirements,
including physical education requirements, are not presently
among the types of complaints subject to UPC. As recently
amended, this bill would provide that complaints concerning
noncompliance with physical education requirements may use the
UPC remedy; however, the bill also specifies that nothing in
this measure would expand or restrict a person's right to seek
compliance by a writ of mandate. The author will amend the bill
in this Committee to add an urgency clause and state the reasons
why an urgency clause is needed. An earlier version of this
bill was opposed by the ACLU, Public Advocates, and Cal200, the
advocacy group that brought an action for writ of mandate and
injunctive relief against several schools districts. ACLU and
Public Advocates have informed the Committee that they will
remove their opposition in light of recent amendments, but
Cal200 remains opposed at the time of this writing.
SUMMARY: Provides that a complaint that a school district has
failed to comply with physical educational requirements may be
filed pursuant to a specified administrative complaint process.
Specifically, this bill:
1)Permits a complainant alleging that a school district or
county superintendent of schools has not complied with
physical education requirements, as specified, to file a
complaint with the school district or the county
superintendent pursuant to the Uniform Complaint Procedures,
as set forth in Chapter 1 of Division 1 of Title 5 of the
California Code of Regulations.
2)Provides that a complainant who is not satisfied with the
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decision of a school district or county superintendent may
appeal the decision to the state Superintendent of Education
and shall receive a written appeal decision within 60 days of
the Superintendent's receipt of the appeal.
3)Provides that if a school district or county superintendent of
schools finds merit in a complaint, or the Superintendent
finds merit in an appeal, the school district or county
superintendent of schools shall provide a remedy to all
affected pupils, parents, and guardians.
4)Makes legislative findings that neither the original statute
setting forth course of study requirements, nor any subsequent
amendments to it, was intended to create a private cause of
action. Specifies, however, that nothing in this bill shall
restrict or expand the existing right of any party to seek
relief from noncompliance with this section pursuant to a writ
of mandate.
EXISTING LAW:
1)Requires the adopted course of study for grades one through
six to include instruction in specified areas of study,
including physical education. Specifies that requirements for
physical education, with emphasis on physical activities,
shall be for a total period of time of not less than 200
minutes each 10 schooldays, exclusive of recesses and lunch
period. Applies the same requirement to elementary schools
that maintain grades one to eight. (Education Code Sections
51210, 51223.)
2)Establishes, in the California Code of Regulations, Uniform
Complaint Procedures by which an individual may file a
complaint alleging that a school district or county
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superintendent of schools failed to comply with specified
state or federal laws or programs. Provides, generally, that
a complainant who is unsatisfied with the decision of the
school district or county superintendent may appeal to the
state Superintendent, as specified. (Chapter 5.1 (commencing
with Section 4600) of Division 1 of Title 5 of the California
Code of Regulations.)
FISCAL EFFECT: As currently in print this bill is keyed fiscal.
COMMENTS: This bill is a response to recent litigation
involving mandatory physical education requirements in the
elementary schools. Existing law requires schools to provide
physical education, with an emphasis on physical activity, for a
total period of not less than 200 minutes each 10 school days.
This bill, as originally introduced, would have modified that
requirement to not less than 400 minutes each 20 school days,
and it would have required a person alleging non-compliance with
that requirement to exhaust an existing administrative complaint
process as an "adequate remedy." However, the bill was recently
amended to restore the existing 200-minute-in-10-day requirement
and to make it clear that using the uniform complaint procedure
is optional and that the complainant retains his or her to
enforce the physical education requirement by writ of mandate.
The purpose of this bill therefore, according to the author, is
to "provide a quick and effective administrative remedy to
address allegations that the mandated Physical Education minutes
requirement is not met." Specifically, the author wants to
protect schools from unnecessary lawsuits by directing
complainants to the Uniform Complain Procedure (UPC). This will
allow the local school district to resolve the issue, the author
believes, and avoid the time and expense of a lawsuit.
Consistent with other issues handled under the UCP, a
complainant can elect to go to court for a writ of mandate
compelling the school to comply.
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Litigation Background. When a government entity fails to
perform some act required by law, Code of Civil Procedure (CCP)
Section 1085 permits any person to seek a writ of mandate from
any court to compel that government entity to comply with the
law. The writ generally requires the entity to either perform
the legally required act or to show cause before the court why
it should not perform the act. The question in such cases often
hinges on whether the statutory prescription is "discretionary"
or "mandatory," with only mandatory requirements warranting the
issuance of a writ of mandate. (CCP Sections 1085-1087.)
Admittedly, the physical education requirement permits a degree
of discretion in that it does not specify exactly how the 200
minutes shall be allocated over the 10-day period. For example,
a school could provide 200 minutes on a single day during a
10-day period, provide 20 minutes for each day of the 10-day
period, or allocate those 200 minutes in some other way over the
10-day period. But this built-in discretion does not change the
fact that 200 minutes of physical education over a 10-day
period, however allocated, is mandatory and not discretionary.
Subdivision (a) of Section 51210 states that the course of study
"shall" include physical education "for a total period of not
less than 200 minutes each 10 schooldays, exclusive of recesses
and the lunch period." Not surprisingly, therefore, in Doe v.
Albany Unified School District (2010) 190 Cal.App.4th 668, the
California Court of Appeal for the Third district concluded that
the physical education requirement in the Education Code "means
what it says and that, while individual school districts may
have discretion as to how to administer their physical education
programs, those programs must satisfy the
200-minute-per-10-schoolday minimum." The court further
concluded that, because the complaint alleged a violation of a
mandatory requirement, the trial court erred in refusing to
grant plaintiffs leave to amend their complaint to state a claim
for a writ of mandate to compel compliance with the requirement.
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In 2013 the advocacy group Cal200 filed a class action lawsuit
against 37 school districts in the state, including Los Angeles
and San Francisco, alleging that these schools were out of
compliance with state law. The action sought a writ of mandate
and injunctive relief. (Cal200 and Marc Babin v. San Francisco
Unified School District, et.al. San Francisco Superior Court,
Case No. CGC-13-534975, March 6, 2013.) However, it is not
entirely clear that this bill would have prevented that lawsuit.
According to an amended complaint filed in that action, for at
least some, if not all, of the schools the plaintiff attempted
to use the UCP process. For example, the complaint alleges that
a Uniform Complaint was sent to the Los Angeles Unified School
District. The school district conceded that the administrative
complaint had merit but responded to the plaintiff that "your
allegations have already been rectified." ("Verified First
Amended Complaint," Cal200, supra.) In February of this year
most if not all of the schools settled with the plaintiff. One
of the conditions of the settlement is that elementary school
teachers will be required to publicly document how many minutes
of physical education students receive. While the action in the
Cal200 case was for a writ of mandate and injunctive relief, not
for damages, the settlement reportedly still required the 37
districts, collectively, to pay $1.1 million in attorney's fees
for the plaintiff's attorney. This was, of course, in addition
to the several districts' own legal costs in litigating the
case.
The Uniform Complaint Procedure Process. Title 5 of the
California Code of Regulations establishes a Uniform Complaint
Procedure (UCP) by which an individual may file a complaint
alleging that a school district or county superintendent of
schools failed to comply with specified state or federal laws or
programs. The Education Code and the Code of Regulations
expressly identify only about six programs that are subject to
the UCP, but the schools are nonetheless authorized to suggest
that complaints on other matters (unless expressly excluded) be
handled through the UCP. Regardless of the program that is
allegedly violated, the UCP sets forth uniform procedures if a
complainant is dissatisfied with the school's response. If the
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complainant is unsatisfied with the initial decision of the
school district or county superintendent, then he or she may
appeal to the State Superintendent of Public Instruction, as
specified. The Superintendent must respond within 60 days, and
if the Superintendent's response does not provide a satisfactory
resolution, the complainant may then seek court action. As is
true with virtually all administrative complaint procedures, a
complainant always has final recourse in the courts for a writ
of mandate or injunctive relief. (See generally Chapter 5.1,
commencing with Section 4600, of Division 1 of Title 5 of the
California Code of Regulations.)
Modest Impact on Existing Law. As recently amended, the bill
does not greatly change existing law. It does not require a
complainant to use and exhaust the UCP; it simply adds
complaints alleging a violation of the physical education
requirement to the existing list of complaints that may be
resolved through the UCP process. However, since school
districts may already offer to resolve other issues by the UCP
process, the overall impact of the bill seems limited. However,
the author and sponsor believe, not unreasonably, that an
express provision may encourage both the complainant and school
district to start with this option. Yet the bill makes it clear
that the UCP process is optional both by the use of the critical
word "may" and an express statement that nothing in the
provisions of this bill should be construed to expand or limit a
complainant's right to seek a writ of mandate to enforce
compliance.
The bill also makes legislative findings that the statute
amended by this bill was not intended to provide a private cause
of action. However, the import of this statement seems minimal.
As the court noted in Doe v. Albany Unified School District,
supra, a violation of a statute, even one that is mandatory,
does not necessarily give rise to a private right of action.
Quoting prior case law, the court noted that "whether a party
has a right to sue depends on whether the Legislature has
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'manifested an intent to create such a private cause of action'
under the statute." The court added that such intent, if any,
is revealed through the language and legislative history of the
statute. (Id., quoting Moradi-Shalal v. Firemen's Fund
Insurance Companies (1988) 46 Cal. 3d 287, 305.) As for the
statute amended by this bill, neither the language of the
statute nor its legislative history reveals any intent to create
a private right of action, expressly or otherwise. It may seem
a bit redundant to say that the statute did not intend to create
a private right of action when clearly the statute does not.
Moreover, while neither the bill nor the statute "creates" a
private right of action, it expressly states that it does not
preclude the existing right of a complainant to bring an action
for a writ of mandate. In short, the bill does not create,
expand, or limit any existing right.
The modest impact of the bill, to a certain degree, undermines
the arguments of both proponents and the remaining opponents.
Proponents contend that this bill will result in settling PE
education disputes through the UCP process, when in fact the
bill makes the UCP process permissive and expressly states that
complainants can still seek a writ from the court. Moreover,
under existing law, UCP is already an option even though not
expressly provided for in statute. Similarly, at the other end
of the spectrum, one of the opponents of the bill states that
the bill is a "step backward" and is "a vehicle for the
elimination of physical education in California's elementary
schools." Yet, Cal200's own complaint states that it used and
even exhausted the UCP process before seeking a writ of mandate
from the court. If that is the case, Cal200 did more than this
bill requires. Indeed, this bill makes it clear that Cal200
need not have exhausted the UCP process before seeking a writ of
mandate. All this bill really does is flag the UCP process as
an option. If Cal200's dire warnings come true, and physical
education is eliminated from our schools, it will not be because
of this bill.
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Arguments in Support: The San Francisco Unified School District
(SFUSD) supports AB 1391 because it will provide "an effective
and timely mechanism to resolve allegations of non-compliance
with the P.E. instructional minutes requirement. The UCP
attempts to resolve complaints at the local level, and where
there is merit to a complaint the UCP ensures that a remedy is
promptly provided to all affected pupils, parents and
guardians." The resolution provided in this bill, SFUSD
maintains, "will provide an efficient and effective alternative
to costly and time-consuming litigation, which in essence
diverts taxpayer dollars earmarked for public education to pay
for legal battles and attorney's fees."
The Los Angeles Unified School District (LAUSD) supports this
bill for substantially the same reasons. LAUSD recognizes the
importance of physical education for children and contends that
it has long demonstrated its commitment to promoting healthy
styles, including by ensuring that students participate in
physical education as required by law. It states, however, that
unplanned circumstances - such as school lockdowns, heat
advisories, and poor air quality - make it difficult for schools
to make up for lost time. LAUSD believes that AB 1391 will
provide more reasonable and cost effective remedies "when
districts inadvertently fall out of compliance with the PE
minutes statute while preserving opportunities for complainants
to pursue options through the courts if the remedies prove
unsatisfactory." The bill is supported by many other school
districts who similarly express their commitment to complying
with PE requirements while simultaneously expressing their
belief that the UCP process is a more efficient and cost
effective remedy than litigation, which only drains money away
from the school's essential function: educating students.
Arguments in Opposition: Cal200, the group that brought the
suit against the 37 school districts, remains opposed to this
bill, apparently even as amended. Cal200 rightfully contends
that its lawsuit brought about the settlement that forced the
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school districts to comply with the state's mandatory physical
education requirements. Cal200 claims that this bill, however,
is a "step backward . . . [and] an ill-conceived attempt to
deny the public access to courts when a school district fails to
provide the children with state mandated physical education."
(Although Cal200's letter is dated after the latest amendment
date of this bill, it is not clear whether the letter reflects
the most recent version of the bill in print.)
The California Association of Health, Physical Education,
Recreation, and Dance (CAHPERD) writes that it accepts "the
important amendments made to AB 1391, and therefore has changed
its position on this bill from 'oppose' to 'watch.'" Public
Advocates and ACLU have informed the Committee that they have
removed their opposition.
Proposed Author Amendment: The author will add an urgency
clause in this Committee to read as follows:
This Act is an urgency statute necessary for the immediate
preservation of the public peace, health, or safety within the
meaning of Article IV of the Constitution and shall go into
immediate effect. The facts constituting necessity are:
In order to protect California public schools from unnecessary
lawsuits that take funds away from our classrooms, it is
necessary for this bill to take effect immediately.
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REGISTERED SUPPORT / OPPOSITION:
Support
Compton Unified School District
Los Angeles Unified School
Paramount Unified School District
Riverside County Superintendent of Schools
San Bernardino County District Advocates for Better Schools
San Diego County Office of Education
San Francisco Unified School District
School Employers Association of California
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Opposition
Cal200
Analysis Prepared by:Thomas Clark / JUD. / (916) 319-2334