BILL ANALYSIS Ó
AB 1391
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB
1391 (Gomez and O'Donnell)
As Amended September 2, 2015
2/3 vote. Urgency
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|ASSEMBLY: |80-0 |(June 1, 2015) |SENATE: | 40-0 |(September 8, |
| | | | | |2015) |
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Original Committee Reference: ED.
SUMMARY: Makes complaints regarding compliance with
instructional minute requirements for physical education subject
to the Uniform Complaint Procedures (UCP), states that the
Legislature finds and declares that neither the original
provisions of the applicable section, nor any subsequent
amendments to it, were intended to create a private right of
action, and takes effect immediately as an urgency statute.
The Senate amendments clarify that appeals of local educational
agency (LEA) decisions would be subject to the UCP appeal
process, make technical changes, and add co-authors.
EXISTING LAW:
1)Requires elementary schools with grades 1-8 to provide at
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least 200 minutes of physical education every 10 schooldays,
exclusive of recess and lunch periods, and states that this
instruction shall have an emphasis on activities that may be
conducive to health and vigor of body and mind.
2)Through regulations, requires LEAs to adopt uniform complaint
procedures through which the public can register complaints
regarding educational programs and rights. (California Code
of Regulations, Title 5, Section 4600 et seq).
3)Authorizes a modified complaint process known as "Williams
Complaints" through statute (Education Code Section 35186) for
complaints regarding instructional materials, emergency or
urgent facilities conditions that pose a threat to the health
and safety of pupils, teacher vacancy or misassignment, and
instructional services provided to students who have not
passed the High School Exit Examination. Existing law also
authorizes complaints through the UCP for harassment,
intimidation, bullying, discrimination, unlawful pupil fees,
and violations of the law regarding Local Control
Accountability Plans (LCAPs).
FISCAL EFFECT: According to the Senate Appropriations
Committee:
1)The California Department of Education (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)
2)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. See staff comments.
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(Proposition 98 of 1988)
3)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.
COMMENTS:
Need for this bill. The author's office states, "The importance
of physical exercise, particularly for children, is well
documented. Physical exercise [P.E.] has significant health
benefits, from countering obesity and diabetes to promoting
brain development and academic achievement. While current law
requires a minimum amount of instructional time in P.E. for
pupils in grades 1 to 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.
A San Francisco Chronicle article describes the lawsuit as
'unprecedented' and the circumstances of the case as 'unusual if
not bizarre.' The article notes that the named plaintiff was
recruited by the lawyer and hasn't had children in California
schools for 20 years. The bottom-line is that the lawyer behind
the case will earn more than $1 million in fees, and millions of
additional taxpayer dollars earmarked for education will instead
be wasted on legal costs incurred by the districts during the
lengthy and difficult process of trying to settle the
litigation. It is likely that many more school districts will
be threatened with similar litigation and demands for attorneys'
fees.
"From a legal standpoint, the basis for the litigation is a
Court of Appeal ruling, Doe v. Albany Unified School District
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(2010) 190 Cal. App. 4th 668. The court ruled even if the P.E.
minutes statute 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 at 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. That
case was used as the basis for the class-action litigation
against the school districts, and the subsequent demand for
attorneys' fees.
"AB 1391 utilizes the existing Uniform Complaint Procedures set
forth in the Education Code and Title 5 regulations to provide a
straightforward, administrative process to resolve allegation of
non-compliance with the P.E. instructional minutes requirement."
The Uniform Complaint Procedure and related complaint processes.
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 is
used for complaints regarding a number of state and federal
programs. In addition, complaints may be filed under the UCP
regarding discrimination, harassment, bullying, intimidation,
unlawful pupil fees, certain charter school requirements, and
violations of the law establishing LCAPs.
Complaints made under the UCP may be filed by an individual,
public agency, or organization. Not all matters of educational
law are covered by the UCP (complaints regarding the federal
school lunch program, for example, are filed with the United
States Department of Agriculture), but LEAs may use the UCP if
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they so choose to process some other complaints. CDE monitors
for compliance with the UCP through its compliance monitoring
activities.
A modified process is used for "Williams Complaints," and
complaints regarding the provision of services to students who
have not passed the High School Exit Examination, pupil fees,
harassment, discrimination, bullying, intimidation, 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.
Analysis Prepared by:
Tanya Lieberman / ED. / (916) 319-2087 FN:
0002084