BILL ANALYSIS Ó
SENATE COMMITTEE ON EDUCATION
Senator Carol Liu, Chair
2015 - 2016 Regular
Bill No: AB 1391
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|Author: |Gomez |
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|Version: |April 30, 2015 Hearing |
| |Date: June 24, 2015 |
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|Urgency: |Yes |Fiscal: |Yes |
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|Consultant:|Lynn Lorber |
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Subject: Pupil instruction: adopted course of study:
elementary school: physical education: complaints
SUMMARY
This bill, an urgency measure, expands the Uniform Complaint
Procedures to include complaints of non-compliance with the
required minimum instructional minutes for physical education.
BACKGROUND
Existing law:
1)Requires the adopted course of study for grades 1-6 to include
instruction in, among other subject matter areas, physical
education, with emphasis on the physical activities for the
students that may be conducive to health and vigor of body and
mind, for a total period of time of at least 200 minutes each
10 schooldays, exclusive of recess and the lunch period.
(Education Code § 51210)
2)Requires instruction in physical education in elementary
schools with grades 1-8 to be for a total period of time of at
least 200 minutes each 10 schooldays, exclusive of recess and
lunch periods. (EC § 51223)
3)Through regulation, requires local educational agencies to
adopt uniform complaint procedures through which the public
can register complaints regarding educational programs and
rights. (California Code of Regulations, Title 5, § 4600 et
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seq.)
ANALYSIS
This bill, an urgency measure, expands the Uniform Complaint
Procedures to include complaints of non-compliance with the
required minimum instructional minutes for physical education.
Specifically, this bill:
1)Authorizes a complaint of non-compliance with the required
minimum instructional minutes for physical education for
grades 1-6 and for elementary schools serving students in
grades 1-8 to be filed with a local educational agency (LEA)
under the Uniform Complaint Procedures (UCP).
2)Authorizes a complainant who is not satisfied with the
decisions of a LEA to appeal the decision to the
Superintendent of Public Instruction (SPI), and requires that
the
complainant receive a written decision regarding the appeal
within 60 days of the SPI's receipt of the appeal.
3)Requires the local educational agency (LEA) to provide a
remedy to all affected students, parents and guardians if the
LEA or the Superintendent of Public Instruction (SPI) finds
merit in a complaint.
4)States Legislative findings and declarations that neither the
original provisions of the section of the Education Code
amended by this bill, nor any subsequent amendments to it,
were intended to create a private right of action. This bill
further finds and declares that, nothing in the provisions of
this bill restricts or expand the existing right of any party
to seek relief from non-compliance pursuant to a writ of
mandate.
5)Includes an urgency clause, in order to protect public schools
from unnecessary lawsuits that take funds away from
classrooms.
STAFF COMMENTS
1)Need for the bill. According to the author, "While current law
requires a minimum amount of instructional time in physical
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education for pupils in grades 1-6, 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. 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 PE minutes requirement 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 of 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."
2)Litigation Background. According to the Assembly Judiciary
Committee analysis of this bill, the Code of Civil Procedure §
1085 permits any person to seek a writ of mandate from any
court to compel a governmental 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. 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."
In 2013 the advocacy group Cal200 filed a class action lawsuit
against 37 school districts in the state alleging that these
schools were out of compliance with the minimum required
instructional minutes for physical education. 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.) According to an amended complaint filed in that
action, for at least some of the schools, the plaintiff
attempted to use the UCP process. In February of 2015, 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 document, and make publicly
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available, 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.
3)Uniform Complaint Procedures (UCP). 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 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 local
educational agency (LEA) within 60 days.
c) An appeal by the complainant to the California Department
of Education (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) A request for reconsideration by the complainant or LEA
within 35 days of receiving CDE's response to the appeal.
f) A response by the CDE within 35 days.
Complaints regarding pupil fees, harassment, discrimination,
bullying, intimidation, local control and accountability plans
(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.
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4)Fiscal impact. According to the Assembly Appropriations
Committee, this bill would impose:
a) General Fund administrative costs to the CDE not likely to
exceed $50,000 to the extent there is an increase in UCP
complaint filings.
b) 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.
5)Technical amendments. To ensure consistency with the existing
UCP and related legislation, staff recommends the following
technical amendments:
a) On page 3, line 30, strike "Superintendent"
and insert "department" and on page 3, line 31,
strike "Superintendent's" and insert "department's"
b) On page 3, line 30, before "and" insert
"pursuant to Chapter 5.1 (commencing with Section
4600) of Division 1 of Title 5 of the California
Code of Regulations"
c) On page 4, line 19, strike "Superintendent"
and insert "department" and on page 4, line 20,
strike "Superintendent's" and insert "department's"
d) On page 4, line 19, before "and" insert
"pursuant to Chapter 5.1 (commencing with Section
4600) of Division 1 of Title 5 of the California
Code of Regulations"
6)Related legislation. AB 379 (Gordon, 2015) expands the UCP to
include complaints of non-compliance with certain rights and
responsibilities regarding the education of students who are
in foster care or who are homeless, including school placement
decisions, responsibilities of foster youth liaisons,
provisions regarding school transfers, exemption from
locally-imposed graduation requirements, and the awarding of
partial credit for completed coursework. AB 379 is scheduled
AB 1391 (Gomez) Page 6
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to be heard by this Committee on June 24.
AB 412 (Chavez, 2015) authorizes complaints of non-compliance with
the required minimum instructional minutes for physical
education to be filed with a local complaint process or
through the UCP. AB 412 was never heard.
SB 81 (Committee on Budget and Fiscal Review, 2015) among other
things, expands the UCP to include complaints regarding an
alleged violation by a local agency of federal or state law or
regulations governing adult education programs or regional
occupational centers and programs. SB 81 is passed both
houses of the Legislature and is pending in Engrossing and
Enrolling.
SB 425 (Hernandez, 2015) among other things, expands the UCP to
include complaints regarding an alleged violation by a local
agency of federal or state law or regulations governing adult
education programs or regional occupational centers and
programs, including allegations of unlawful discrimination,
harassment, intimidation, or bullying. SB 425 is pending in
the Assembly Higher Education Committee.
AB 907 (Burke, 2015) is nearly identical to SB 425. AB 907 is
pending in this Committee.
AB 1012 (Jones-Sawyer, 2015) prohibits a school district from
assigning any students in grades 7-12 to any "course period
without educational content" for more than one week in any
semester, or to a course that the student has previously
completed with a grade sufficient to meet the A-G requirements
and graduation
requirements, unless specifically authorized. AB 1012 also
expands the UCP to include complaints of noncompliance with
these requirements. AB 1012 is pending in this Committee.
AB 302 (Cristina Garcia, 2015) requires local educational
agencies (LEAs) to provide reasonable accommodations to a
lactating pupil on a school campus to express breast milk,
breast-feed an infant child, or address other needs related to
breast-feeding, and expands the UCP to include complaints of
non-compliance with this requirement. AB 302 is scheduled to
be heard by this Committee on July 1.
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SUPPORT
California Association of School Business Officials
California School Boards Association
California State PTA
Los Angeles Unified School District
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
OPPOSITION
None received.
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