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 ------------------------------------------------------------------- |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 Page 2 | | |Gordon, Holden, | | | | |Jones, Quirk, | | | | |Rendon, Wagner, | | | | |Weber, Wood | | | | | | | | | | | | ------------------------------------------------------------------- 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 AB 1391 Page 3 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: AB 1391 Page 4 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 AB 1391 Page 5 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 Page 6 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