BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1391|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                   THIRD READING 


          Bill No:  AB 1391
          Author:   Gomez (D) and O'Donnell (D), et al.
          AmendedAmended:9/2/15 in Senate
          Vote:     27 - Urgency

           SENATE EDUCATION COMMITTEE:  9-0, 6/24/15
           AYES:  Liu, Runner, Block, Hancock, Leyva, Mendoza, Monning,  
            Pan, Vidak

           SENATE APPROPRIATIONS COMMITTEE:  7-0, 8/27/15
           AYES:  Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen

           ASSEMBLY FLOOR:  80-0, 6/1/15 - See last page for vote

           SUBJECT:   Pupil instruction: adopted course of study:  
                     elementary school: physical education: complaints


          SOURCE:    Author

          DIGEST:   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.  

          Senate Floor Amendments of 9/2/15 make a technical change and  
          add coauthors.

          ANALYSIS: 
          
          Existing law:

          1)Requires the adopted course of study for grades 1-6 to include  








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            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)Requires, through regulation, local educational agencies  
            (LEAs) 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 seq.)  

          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 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 California  
            Department of Education (CDE) and requires that the  
            complainant receive a written decision regarding the appeal  
            within 60 days of the CDE's receipt of the appeal.  

          3)Requires the LEA to provide a remedy to all affected students,  
            parents and guardians if the LEA or the Superintendent of  
            Public Instruction 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.







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          5)Includes an urgency clause, in order to protect public schools  
            from unnecessary lawsuits that take funds away from  
            classrooms.

          Comments
          
          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 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.  

          Uniform Complaint Procedures.  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.   







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          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:

          1)The filing of a complaint by an individual, agency, or  
            organization.

          2)The investigation and written response by the LEA within 60  
            days.

          3)An appeal by the complainant to the CDE within 15 days of  
            receiving the LEA response.

          4)The response by the CDE to the appeal, with the investigation  
            completed with 60 days.

          5)A request for reconsideration by the complainant or LEA within  
            35 days of receiving CDE's response to the appeal.

          6)A response by the CDE within 35 days.

          Complaints regarding pupil fees, harassment, discrimination,  
          bullying, intimidation, local control and accountability plans  
          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.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   Yes


          According to the Senate Appropriations Committee:


           The CDE indicates that it would likely need 0.5 position and  
            about $60,000 to process and respond to potential physical  
            education-related appeals based on the application of UCP to  
            pupil fees.  This estimate would vary depending upon the  
            number of appeals submitted to the CDE.  (General Fund)








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           Unknown, potentially significant additional costs if the  
            Commission on State Mandates determined that this bill  
            expanded the existing reimbursable state mandate.  If  
            determined to be a mandate, it could create pressure to  
            increase the mandate block grant.  (Proposition 98)

           Unknown potential local savings to the extent this bill avoids  
            litigation at the LEA level with the establishment of an  
            administrative process to remedy non-compliance.


          SUPPORT:   (Verified9/3/15)


          None received


          OPPOSITION:   (Verified9/3/15)


          None received

          ASSEMBLY FLOOR:  80-0, 6/1/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang,  
            Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle,  
            Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,  
            Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,  
            Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez,  
            Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,  
            Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins

          Prepared by:Lynn Lorber / ED. / (916) 651-4105
          9/3/15 14:34:27


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