BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 1391| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 1391 Page 2 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. AB 1391 Page 3 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. AB 1391 Page 4 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) AB 1391 Page 5 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 **** END **** AB 1391 Page 6