BILL ANALYSIS Ó
AB 1391
Page 1
ASSEMBLY THIRD READING
AB
1391 (Gomez and O'Donnell)
As Amended April 30, 2015
2/3 vote. Urgency
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|Committee |Votes |Ayes |Noes |
| | | | |
| | | | |
|----------------+------+--------------------+----------------------|
|Education |7-0 |O'Donnell, Chávez, | |
| | |Kim, McCarty, | |
| | |Santiago, Thurmond, | |
| | |Weber | |
| | | | |
|----------------+------+--------------------+----------------------|
|Judiciary |10-0 |Mark Stone, Wagner, | |
| | |Alejo, Chau, Chiu, | |
| | |Gallagher, Cristina | |
| | |Garcia, Holden, | |
| | |Maienschein, | |
| | |O'Donnell | |
| | | | |
|----------------+------+--------------------+----------------------|
|Appropriations |17-0 |Gomez, Bigelow, | |
| | |Bonta, Calderon, | |
| | |Chang, Daly, | |
| | |Eggman, Gallagher, | |
| | | | |
| | | | |
| | |Eduardo Garcia, | |
AB 1391
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| | |Gordon, Holden, | |
| | |Jones, Quirk, | |
| | |Rendon, Wagner, | |
| | |Weber, Wood | |
| | | | |
| | | | |
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SUMMARY: Makes complaints regarding compliance with instructional
minute requirements for physical education subject to the Uniform
Complaint Procedures (UCP), states that the Legislature finds and
declares that neither the original provisions of the applicable
section, nor any subsequent amendments to it, were intended to
create a private right of action, and makes these provisions take
effect immediately as an urgency statute. Specifically, this
bill:
1)Allows complaints regarding compliance with the physical
education instructional minute requirements for grades 1-6 and
for elementary schools serving students in grades 1-8 to be
filed using the UCP.
2)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 Legislature finds and declares that neither the
original provisions of the applicable section, nor any
subsequent amendments to it, were intended to create a private
right of action. States that nothing in the applicable
subdivision shall restrict or expand the existing right of any
party to seek relief from noncompliance with this section
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pursuant to a writ of mandate.
5)States that this is an urgency statute, to take effect
immediately.
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
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 Section 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: According to the Assembly Appropriations
Committee:
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1)General Fund administrative costs to the California Department
of Education not likely to exceed $50,000 to the extent there is
an increase in UCP complaint filings.
2)Expanding the existing UCP process to include complaints related
to physical education instruction could expand the number of
reimbursable claims associated with this state mandate. This
bill could also result in potential cost savings to some
individual LEAs to the extent that utilization of this process
reduces litigation.
COMMENTS:
Need for the bill. The author's office states, "The importance of
physical exercise, particularly for children, is well documented.
Physical exercise [P.E.] 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
"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
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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 Uniform Complaint Procedure and related complaint processes.
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. 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).
AB 1391
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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 United
States 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.
A modified process is used for "Williams Complaints," and
complaints regarding the provision of services to students who
have not passed the High School Exit Examination, 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.
Analysis Prepared by:
Tanya Lieberman / ED. / (916) 319-2087 FN: 0000722