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.
Amended: 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)Through regulation, requires local educational agencies (LEAs)
to adopt Uniform Complaint Procedures (UCP) 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 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
Section 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 local educational agency level with the
establishment of an administrative process to remedy
non-compliance.
SUPPORT: (Verified9/2/15)
None received
OPPOSITION: (Verified9/2/15)
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
9/8/15 15:24:56
**** END ****
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