BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 343
Assemblymember Salda?a
As Amended June 1, 2009
Hearing Date: July 14, 2009
Education Code
KB:jd
SUBJECT
Pupils: Military Families
DESCRIPTION
This bill would ratify the Interstate Compact on Educational
Opportunity for Military Children (the Compact) in order to
remove barriers to educational success imposed on children of
military families due to the frequent relocation and deployment
of their parents.
BACKGROUND
Military families move between postings on a regular basis due
to reassignments that are required and/or advantageous for
career personnel. However, these moves often create educational
disadvantages for the children of military families. The
average military student transitions more than twice during high
school, and most military children will attend six to nine
different school systems from kindergarten to 12th grade. With
more than half of all military personnel supporting families,
the impacts of reassignment and long deployments are a key
consideration when making life and career choices. While the
armed services has taken steps to ease the transition of
personnel, and their spouses and children, frequent moves
subject military children to divergent policies, rules, and
procedures at both the state and local level.
The Council of State Governments has worked with the U.S.
Department of Defense Office of Personnel and Readiness to draft
the Compact, addressing the educational transition issues of
children of military families. A variety of federal, state, and
(more)
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local officials as well as national organizations representing
interested education groups and military families worked from
July 2006 through early 2008 to develop the Compact that the
Legislature is requested to adopt in this bill. Legal experts,
specifically those with both extensive substantive knowledge and
experience in drafting interstate compacts, as well as experts
in primary and secondary education issues, worked together in
conjunction with the stakeholders mentioned to draft the
proposed compact language and legal analysis for the Compact
over the same period of time. While the Compact is not
exhaustive in its coverage, it does address the key issues
encountered by military families: eligibility, enrollment,
placement, and graduation. In addition, the Compact provides
for a detailed governance structure at both the state and
national levels with built-in enforcement and compliance
mechanisms.
In 2008, the Compact was submitted to the California Legislature
for ratification in AB 1809 (Salda?a, 2008). However, during
the legislative deliberations, questions were raised about the
fiscal impact of the Compact's requirements, whether the Compact
was consistent with state education laws, and the legal
implications of adopting the Compact. AB 1809 was eventually
held in the Assembly Appropriations Committee. Thereafter, AB
2049 (Salda?a, Chapter 589, Statutes of 2008) was amended to
create a task force to analyze the Compact, explore the concerns
raised during legislative deliberations, and make
recommendations regarding how to address the concerns. The task
force issued its final report in April 2009 recommending that
California join the Interstate Compact on Educational
Opportunity for Military Children if certain non-material
changes were made to the Compact that would address concerns
previously expressed during the legislative process.
This bill was approved by the Senate Committee on Education on
July 1, 2009.
CHANGES TO EXISTING LAW
Existing law requires the State Department of Education to
establish a formal liaison with the United States Department of
Defense and school districts that enroll military dependents to
establish guidelines for school credit transfer and procedures
to help military dependents in meeting local graduation
requirements. (Ed. Code Sec. 51250.)
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Existing law authorizes a school district of choice, as defined,
to give priority of attendance to children of military
personnel, if the school district elected to accept transfer
pupils by a resolution adopted by the governing board prior to
April 1, 2005. (Ed. Code Sec. 51251.)
This bill would state the intent and purpose of the Interstate
Compact on Educational Opportunity for Military Children, and
define terms specific to the Compact.
This bill would provide that the provisions of the Compact apply
only to the children of members of the uniformed services, as
specified.
This bill would require sending schools (the school in the state
from which an eligible pupil is sent or brought) to furnish
unofficial and official student records to parents and receiving
schools, respectively, as provided.
This bill would require receiving schools (the school in the
state to which an eligible pupil is sent or brought) to perform
certain actions, as provided. Among other things, receiving
schools would be required to: (1) allow transferring students to
continue their enrollment at their grade level in the sending
state, regardless of age; (2) allow a pupil who has completed a
grade level at the sending school to enroll in the next highest
grade level at the receiving school; (3) accept and honor
courses; and (4) accept exit or end-of-course examinations for
graduation from the sending state, but requires passage of
California's high school exit examination in order to receive a
diploma issued by a California high school.
This bill would require state and local education agencies to
facilitate the opportunity for transitioning military children's
inclusion in extracurricular activities, regardless of
application or tryout deadlines, to the extent they are
otherwise qualified and space is available as determined by the
school district.
This bill would require that the provisions of the Compact apply
to local education agencies (LEAs).
This bill would prohibit an LEA from charging local tuition to a
transferring student in the care of a non-custodial parent or
other person acting as the parent who lives in a jurisdiction
other than that of the custodial parent.
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This bill would require LEA administrative officials to use best
efforts to waive courses required for graduation if a
transferring student has completed similar coursework, and if a
waiver is not granted, to use best efforts to provide an
alternative means of acquiring required coursework so that
graduation may occur on time.
This bill would allow LEA administrative officials to waive
pre-requisite courses or other pre-conditions for course
placement of eligible pupils.
This bill would allow a student to receive a diploma from the
sending school should that student meet the requirements for
graduation at the sending school, but not at the receiving
school.
This bill would require each member state to create a state
council to provide for the coordination among its agencies of
government, local education agencies, and military
installations. This bill would require the state council to
appoint a military family education liaison to assist military
families and the state. This bill would specify the membership
of and the appointing authority for members of the State Council
that is charged with coordinating efforts across all federal,
state, and local agencies involved in the state's participation
in the Compact.
This bill would provide that the Superintendent of Public
Instruction shall be the appointing authority for the state's
Compact Commissioner, who is responsible for the administration
and management of the state's participation in the compact.
This bill would state that the compact does not prevent the
enforcement of any other law of a member state. However, all
other member states' laws that conflict with the compact are
superseded to the extent of the conflict.
This bill would require the executive, legislative, and judicial
branches of the member states to enforce the Compact and take
all necessary actions to carry out the rules promulgated as a
result of the Compact.
This bill would create the Interstate Commission on Educational
Opportunity for Military Children (the Commission), specifies
its duties, powers, membership, and requires that the Commission
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enforce the provisions and rules of the Compact. This bill
would grant the Commission's executive director, employees, and
representatives immunity from suit and liability relating to the
performance of their Commission duties.
This bill would require the Commission to promulgate rules to
bring about the goals of the Compact, and establishes that these
rules have the force of law over all member states unless
overturned by legislation approved individually by a majority of
member states.
This bill would outline the process the Commission must follow
if it determines a member state has defaulted in the performance
of its obligations and responsibilities under the Compact,
including, but not limited to, the use of the judicial process.
This bill would allow the Commission to levy and collect an
annual assessment from each member state to cover the cost of
the operations and activities of the Commission, but authorizes
the Superintendent of Public Instruction to accept nonstate
funding to offset these costs.
This bill would prohibit the Commission from incurring
obligations of any kind prior to securing the funds adequate to
meet the same. The Commission cannot pledge the credit of
member states without the member states' permission.
This bill would allow the Commission to propose amendments to
the compact for enactment by unanimous consent of the member
states.
This bill would allow member states to withdraw from the compact
by repealing the statute and specifies the withdrawal process.
This bill would contain a severability clause, requiring the
remaining provisions of the Compact to be enforceable, if any
other provision is deemed unenforceable.
This bill would provide that the Compact is dissolved when there
is only one member state.
This bill would direct the Superintendent of Public Instruction
to reconvene, with its original membership to the extent
possible, the task force that was convened pursuant to Section 2
of Chapter 589 of the Statutes of 2008 (AB 2049 (Salda?a).) The
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task force would be required to: (1) reconvene on or after July
1, 2012 and on or before September 1, 2012; and (2) review the
impact of the Compact on California, its school districts and
students, and issue a final report regarding these impacts,
including any recommendations for legislative action.
COMMENT
1. Stated need for the bill
The author states:
There are about 60,000 school-age military dependents between
the age of 5 and 18 years old in California. Unfortunately,
military families encounter significant school challenges when
dealing with enrollment, eligibility, placement, and
graduation of their children. Twenty-five percent of the
students lose their course credits due to multiple school
transfers from out-of-state and out-of-country Department of
Defense schools to California schools. Because of the high
rotation of military personnel, school-age military dependents
attend as many as seven schools. Students can be penalized
for missing state tests required to enter or exit various
levels of the educational system. Tests are often specific to
the state and consequently, entrance/exit tests taken in
another state are not recognized. In addition, children
enrolled in Kindergarten in one state may not qualify by age
when transferred during the year to another state, and those
who have completed Kindergarten in another state are sometimes
denied entry into first grade due to the age requirement.
In 2008, the Department of Defense and the Council of State
Governments developed an interstate compact to address this
issue. However, California and each participating state must
adopt the Compact through legislation.
2. Nonmaterial changes would not affect the validity of the
Compact
Interstate compacts are contracts between two or more states
creating agreements on how to address particular policy issues,
setting standards, or establishing cooperation on regional or
national matters. By their nature compacts deal with public
policy matters that extend beyond the boundaries of one state.
Most states are a party to a number of interstate compacts,
addressing issues such as offender supervision, treatment of
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juveniles, natural resource management, multi-state taxation,
transportation, and professional accreditation.
Because compacts are considered contracts between states, their
construction is governed by the legal principles applicable to
contracts. Under the rule of offer and acceptance, a state must
adopt the compact in precisely the terms it is being offered,
subject only to nonmaterial changes or alterations. "A material
change or alteration of an instrument is one that causes it to
speak a language different in legal effect from that which it
originally spoke. Any change made in a document after its
execution, which merely expresses what would otherwise be
supplied by intendment is immaterial, and the document is in
effect unaltered by it." (Consolidated Loan Co. v. Harman,
(1957) 150 Cal.App.2d 488, 492.) In other words, a material
change is one which changes the rights, interests, or
obligations to the contract. Accordingly, California must adopt
the Compact in the terms it is being offered, subject to only
nonmaterial changes.
This bill would ratify the Compact with a number of amendments
which were recommended by the Task Force to provisions
pertaining to unofficial education records, transcripts, course
placement, program placement, extracurricular activities, waiver
of graduation requirements, exit exams, transfers, and
financing. These amendments are meant to tailor certain
provisions in the Compact to current state law. For example,
Article VII, Section A of the Compact requires local education
agency administrative officials to waive specific courses
required for graduation if similar course work has been
satisfactorily completed in another local education agency. In
California, school districts do not have the authority to waive
state course requirements for graduation. However, districts do
have discretion to analyze course content and determine if it
meets graduation requirements. Accordingly, the Task Force
recommended an amendment that would require districts to "use
best efforts" to waive specific courses for graduation. Because
the Task Force's recommended amendments are nonmaterial, they
would not affect the validity of the compact.
3. Compact may not be unilaterally amended
By entering the Compact, California will have "contractually
agreed to reallocate governing authority away from individual
states to a multilateral relationship defined by commonly
accepted principles." (See Caroline A. Broun, et al., The
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Evolving Use and the Changing Role of Interstate Compacts, at
21-22 (American Bar Association 2006).) Although individual
states are free to adopt or decline to adopt any compact, states
ratifying compacts are bound to observe the terms of the
agreement until the compact is formally renounced by the state.
Under Article XV of the Compact, the Interstate Commission may
propose amendments to the compact for enactment by the member
states. No amendment may be effective and binding upon the
Commission and member states unless it is enacted into law by
the unanimous consent of the member states. Thus, the
legislature cannot unilaterally amend or modify the Compact once
it is enacted into law in California.
Under Article XVI of the Compact, a member state of the Compact
may withdraw from the Compact by repealing the statute which
enacted the Compact into law. However, the effective date of
the repeal would not take effect until one year after the
effective date of the statute repealing the Compact. Written
notice must also be provided by the withdrawing state to the
Governor of each other member state. The state would be
responsible for all assessments, obligations, and liabilities
incurred through the effective date of withdrawal.
4. Delegation of rulemaking authority to the Interstate
Commission
The California Constitution separates the powers of the state
government into legislative, executive, and judicial powers, and
provides that persons charged with the exercise of one power may
not exercise either of the others except as permitted by the
Constitution. (Cal. Const., art. III, Sec. 3.) California
courts have long recognized that under the Constitution the
Legislature may by statute delegate quasi-legislative powers to
a state agency in the executive branch, so long as adequate
standards are provided to guide the agency. (See Carmel Valley
Fire Prot. Dist. v. Cal., (2001) 25 Cal.4th 287, 289.) The
adequacy of such a delegation is virtually never an issue in a
rulemaking because all state agencies, including Office of
Administrative Law, must presume that any California statute,
including one delegating rulemaking authority, is constitutional
unless an appellate court has made a determination to the
contrary. (Cal. Const., art. III, Sec. 3.5.) Thus, every
rulemaking action must be based upon a statutory delegation of
rulemaking authority from the Legislature to a state agency.
The Administrative Procedure Act (APA) establishes rulemaking
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procedures and standards for state agencies in California.
(Cal. Gov. Code Sec. 11340 et seq.) The requirements set forth
in the APA are designed to provide the public with a meaningful
opportunity to participate in the adoption of state regulations
and to ensure that regulations are clear, necessary, and legally
valid.
Articles X and XII of the Compact would provide that the
Interstate Commission would have the power to promulgate rules
and take all necessary actions to effect the goals, purposes,
and obligations in the Compact specifically pertaining to
educational record and enrollment, placement and attendance,
eligibility, and graduation. Thus, the Legislature would be
delegating to the Interstate Commission the authority to adopt
binding and enforceable rules. However, should the Interstate
Commission exercise its rulemaking authority in a manner that is
beyond the scope of the specific matters listed above, then such
actions shall be invalid and have no force or effect. Rules
promulgated by the Interstate Commission would be required to be
made pursuant to a rulemaking process that substantially
conforms to the "Model State Administrative Procedure Act," of
1981. The Model APA Act provides for publication of a proposed
rule, notice to interested persons, and issuance of a concise
explanatory statement and publication of the rule at least 30
days before it becomes effective. Thus, it is similar in
purpose and effect to California's APA Act.
The rules promulgated by the Compact would have the force and
effect of statutory law and be binding in the compact states.
Thus, school districts would be required to comply with the
various requirements and policies articulated in the Compact,
which have been analyzed and discussed in both the Assembly and
Senate Committees on Education.
Article XIII of the Compact further requires that the three
branches of government in each member state enforce the Compact,
and "take all actions necessary and appropriate to effectuate
the compact's purpose and intent." The Commission would be
authorized to compel enforcement of the Compact, by a majority
vote of the members, through the filing of a lawsuit in the
United States District Court for the District of Columbia or, in
the federal district where the Commission has its principal
offices. The prevailing party in such an action would be
awarded all costs of litigation including reasonable attorney's
fees.
5. Immunities from liability
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Article XI of the Compact would provide that the Interstate
Commission's executive director and its employees shall be
immune from suit and liability, either personally or in their
official capacity, for civil claims arising out of or relating
to acts, errors, or omissions that occurred within the scope of
Interstate Commission employment, duties, or responsibilities.
However, persons would not be immune from liability for damages,
loss, or injuries caused by intentional or willful and wanton
misconduct. In other words, Interstate Commission employees
would be immune from civil liability for negligent acts
occurring within the scope of the Commission's employment. The
Compact would also provide that the liability of the Interstate
Commission's executive director and employees acting within the
scope of their employment or duties, may not exceed the limits
of liability set forth under the Constitution and laws of the
member state for state officials, employees, and agents. Thus,
the liability of Interstate Commission employees would not
exceed the liability established under the California Tort
Claims Act (Gov. Code Sec. 810 et seq.) for public employees and
officials.
6. Compact would facilitate interstate transfer of military
pupils
The intent of the Compact is to ensure that the children of
military families are afforded the same opportunities for
educational success as other children, and are not penalized or
delayed in achieving their educational goals by sometimes
inflexible administrative and bureaucratic practices as they
move from one school jurisdiction to another, between states or
within a state.
The Task Force report states:
While "state sovereignty" concerns are sometimes raised as an
objection to an interstate compact, in reality a compact
usually serves to promote state sovereignty in that interstate
compacts, unlike pre-emptive congressional legislation or
regulations, allow states to continue to exercise authority
over interstate issues without the need for federal
intervention or pre-emption. When examined from that
perspective, by enacting an interstate compact the State is
only giving up the right to act "unilaterally" with regard to
an interstate problem which cannot be resolved without a
uniform solution agreed to by all the states involved. In
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this case with this compact, neither California nor any other
state can assure that the educational needs of children of
military members will be met by another state to which they
are transferred without an enforceable, uniform standard which
under our federal Constitution can only be established through
either Congressional action (See U.S. Constitution, Article I,
Section 8, Article I, Section 10, Clause 3).
To date, the Compact has been enacted by 14 states, including
Arizona, Colorado, Connecticut, Delaware, Florida, Iowa,
Kansas, Kentucky, Michigan, Mississippi, Missouri, North
Carolina, Oklahoma, and Virginia. The Compact became
operable, and thus obligated those adopting states, once its
language was adopted by 10 states. Bills proposing that the
state enact the Compact are currently pending in 16 additional
states. In all, 34 states are engaged at some point in the
process of enacting or considering enactment of the Compact.
In 2009, the U.S. Department of Defense expects bills for
Compact adoption to be introduced in 26 or 27 states.
Support : State Superintendent of Public Instruction, Jack O'
Connell; California Association of Federally Impacted Schools;
American Legion, Department of California; Vietnam Veterans of
America, California State Council; AMVETS, Department of
California; California State Commanders Veterans Council;
Lincoln Military Housing; San Diego Military Advisory Council;
California Teachers Association; San Diego Unified School
District; Central Union High School District; Military Child
Education Coalition; Balfour Beatty Communities; San Diego
Regional Chamber of Commerce; California School Boards
Association; Michael B. Donley, Secretary of the Air Force;
Donald C. Winter, Secretary of the Navy; Pete Geren, Secretary
of the Army; five individuals
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 2049 (Saldana), Chapter 589, Statutes of 2008, created an
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urgency statute that required the Superintendent of Public
Instruction to convene and support a task force to review and
make recommendations regarding the Interstate Compact on
Educational Opportunity for Military Children.
AB 1809 (Saldana), held in the Assembly Appropriations Committee
in 2008, was substantially similar to this bill.
AB 2102 (Saldana), Chapter 608, Statutes of 2006, established
procedures, including requiring the California Department of
Education to establish a formal liaison with the United States
Department of Defense and school districts that enroll military
dependents, to facilitate and smooth the transfer of school-age
military dependents and their school records.
Prior Vote :
Assembly Education Committee (Ayes 10, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Floor (Ayes 77, Noes 0)
Senate Education Committee (Ayes 8, Noes 0)
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