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  








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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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