BILL ANALYSIS                                                                                                                                                                                                    Ó



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          ASSEMBLY THIRD READING


          AB  
          1391 (Gomez and O'Donnell)


          As Amended  April 30, 2015


          2/3 vote.  Urgency


           ------------------------------------------------------------------- 
          |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,     |                      |








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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).








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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