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From Past Issues of the California Education Law Report

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(June 98)

District Not Obligated to Fund Football Expenses

The Governing Board of a high school district may refuse to use school funds for the annual cleaning and repair of football equipment, ruled the Attorney General in a recent opinion.

The issue was whether a high school district could refuse to use its funds for the annual expenses of maintaining a football program when a "booster club" had been formed by parent volunteers to raise funds for a variety of after-school programs that included athletic events and the school band.

The Attorney General concluded that as long as the private funds are raised voluntarily, the school district would not have to pay for those expenses with school funds.

Donations Must Be Voluntary

The Education Code (§ 17578) requires a school district to "provide for" cleaning and repair of football equipment on an annual basis. However, "a high school district may 'provide for' the cleaning and repair of football equipment without using school funds when donations are voluntarily given to cover such expenses," said the Attorney General.

The critical factor is whether the donation is voluntary. "The California Constitution requires public schools to be "free" (Cal. Const., art. IX, § 5), and this includes not only activities that are essential to a school's curriculum but also extracurricular activities such as music and sports activities."

Moreover, California Code of Regulations, title 5, section 350 states: "A pupil enrolled in a school shall not be required to pay any fee, deposit or other charge not specifically authorized by law." The authority to charge a fee for the cleaning and repair of football equipment is not specifically provided by law and therefore a mandatory charge may not be assessed on the student athletes. However, parents may raise funds on a voluntary basis to cover these expenses.

Free School Clause

A school district is under no statutory obligation to support a high school football program. "If school funds are unavailable for the cleaning and repair of football equipment on an annual basis, the district is not required to spend its funds to operate such an extracurricular activity."

Comment: In two previous decisions the California Supreme Court held that school districts cannot charge fees for any activity which is "educational in character." The Court ruled in Hartzell v. Connell (1984) 35 Cal.3d 899, that fees could not be charged for extracurricular activities and said [internal quotation marks omitted]:

All educational activities offered to students by school districts fall within the free school guarantee, and that the imposition of fees for educational activities offered by public high school districts violates the fee school guarantee.

Educational activities for which fees cannot be charged include: extracurricular activities, teachers' salaries, cost for upkeep of schools, maintenance of the physical facility and school furniture. In this opinion, the Attorney General concluded that the free school clause applied and that a mandatory fee could not be assessed on the student athletes. However, the school district was not required to fund the student athletic program unless there were voluntary contributions for it.

Attorney General Opinion (1998) No. 97-1214

 


(April 98)

Statewide Plan for Arts Education

A new report titled, ARTS WORK: A Call for Arts Education for All California Students, was recently released by the State Department of Education. It calls for legislation to establish arts education as a priority in our schools. The report also recommends adoption of state content and performance standards in the visual and performing arts and the completion of a minimum of one arts course to graduate from high school.

The report is a result of a task force that was convened in the spring of 1997, to develop recommendations to ensure that quality comprehensive arts programs are offered for all students in the public schools.

The task force made the following recommendations:

· Incorporate dance, music, theater, and the visual arts into the core curriculum and ensure that arts programs are taught by trained and qualified arts educators and are supported by classroom teachers and artists.

· Provide state content and performance standards in the visual and performing arts.

· Provide career awareness, career exploration, and career orientation and preparation experiences in the visual and performing arts for all students.

· Provide every student with an arts education program that includes access to the arts through technology and access to the arts in the community.

The task force recommends funding mechanisms be established to provide a broad range of art instruction in schools and enact legislation that offers tax credits and incentives for businesses that support arts education.

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(February 98)

A.G. Rejects "Zero Tolerance" Expulsion

In a recent opinion, the Attorney General rejected a school district's right to enact a "zero tolerance" policy mandating expulsion of a student for the possession of a controlled substance or alcohol.

Proposed Policy May Violate Due Process

The proposed "zero tolerance" policy required the principal or superintendent to recommend expulsion for any of the offenses involving a controlled substance or alcohol, even if the student had no prior record. The grounds for expulsion would be either that other means of correction were not feasible or that the presence of the pupil causes a continuing danger to others. (Educ. Code § 48915 (b)(1) and (2).) The A.G. concluded that automatic expulsion for a first offense "would contravene state law."

Education Code section 48915 provides for mandatory expulsion when a student sells a controlled substance on school grounds. However, the school district must look at the individual circumstance of the pupil's academic record to determine whether other means of correction are not feasible or have repeatedly failed to bring about proper conduct. To do otherwise "may deny the pupil's right to due process," said the Attorney General.

Distinction Between Sale or Possession

"A District may not refuse to exercise the discretionary authority granted to it under the statutory scheme," and must consider each incident on a case-by case-basis. The Attorney General concluded that the Education Code requires mandatory expulsion if a pupil unlawfully sells a controlled substance, but that simply possessing alcohol or drugs was not grounds for mandatory expulsion. (§§ 48915 (c)(3); 48915 (a)(3).) "Indeed, the Legislature does not even direct consideration of expulsion for all drug offenses; it excepts form such administrative action a first offense possession of one ounce or less of marijuana," said the Attorney General. "The offenses least likely to produce a direct physical thereat (e.g., a first time alcohol possession offense) must be viewed as eligible for diversion of the student into disciplinary channels other than expulsion." Suspension is an appropriate disciplinary measure for a first offense involving a controlled substance of alcohol.

Comment: Attorney General opinions are advisory and not binding but they are often considered by a court in the event of litigation. This decision is controversial because it ignores the movement towards "zero tolerance" legislation for students found to be in possession of weapons or drugs that was enacted at both the state and federal level during the past few years. The Education Code clearly provides that one of the grounds for expulsion is "unlawful possession of any controlled substance" listed in the Health and Safety Code. Additionally, the permissive Education Code permits schools districts to act in any manner which is not preempted by any law or in conflict with the purposes for which school districts are established.

Attorney General Opinion No. 97-903

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Public Criticism at School Board Meeting "Ok"

(December 96)

The Moreno Valley Unified School District may not enforce a policy that prohibits criticism of district employees at school board meetings. A federal court recently granted an injunction and ruled that the policy violated the First Amendment rights of individuals to speak freely at public meetings.

The policy did not allow public complaints about district employees at school board meetings, and stated, in part:

No oral or written presentation in open session shall include charges or complaints against any employee of the District, regardless of whether or not the employee is identified by name or by any reference which tends to identify the employee.

The Board President was authorized to remove anyone who violated the policy from a meeting pursuant to Government Code section 54957.9.

Victoria Baca attended a school board meeting on May 28, 1996. The meeting included a public comment period during which citizens could comment on matters not included on the Board's meeting agenda. Baca spoke at the meeting, and said that parental complaints about conditions at Vista Heights Middle School were not being addressed by the District superintendent or the school principal. She was informed that she could not mention either employee by position or by name, and that a violation of the policy would result in her removal from the meeting. Baca continued her remarks and was physically removed from the meeting by a Riverside County sheriff's deputy.

Baca sued the District, charging that the policy was overbroad and a prior restraint on her First Amendment rights. She also maintained that it violated her rights under the Ralph M. Brown Act.

The court agreed with Baca, and ruled that the school board cannot prohibit speech on the grounds that it is critical of District employees. The California Constitution prohibits the school board from censoring citizens who speak at a public meeting, "even if their speech is, or may be, defamatory." Rejecting the District's argument that employees have a right to privacy, the court said:

With due respect to the District's employees' right to privacy under both the California and federal constitutions, under these circumstances such right must give way to the more fundamental constitutional right of freedom of expression under both constitutions.

The "open session of a school board meeting is a legally proper place for citizens to voice their complaints about a school district's employees." Under the Brown Act, school board meetings are limited public forums, and the policy "is an invalid restriction on speech at such meetings." The fact that the public may express criticism of District employees in closed session board meetings "does not validate the otherwise invalid policy," said the court.

The injunction was granted to protect not only Baca's First Amendment rights, but also those of other members of the public wishing to speak out at school board meetings.

Baca v. Moreno Valley Unified School District (C.D. Cal. 1996) ___F.Supp.___

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Teacher Exam Approved by Court

(December 96)

California's basic-skills test (CBEST) for teachers is a valid exam for selecting public school teachers, and does not violate the civil rights of non-white applicants, ruled a federal district court judge.

"The state is entitled to ensure that teachers and others who work in the public schools possess a minimal level of competency in basic reading, writing and math skills before they are entrusted with the education of our children," said U.S. District Judge William Orrick.

The skills test has been required by state law for teaching, counseling and administrative credentials since 1983. Plaintiffs in a class action lawsuit representing applicants who had failed the test, alleged it was discriminatory.

"Regardless of other steps that could be taken, the CBEST remains an objective, cost-effective and valid way to assure that teachers and others employed in the public schools possess basic skills," said the judge in his 71-page opinion. Orrick agreed with the State and found that the test measures important skills for the job. He found no arbitrariness or discrimination in the CBEST passing score. "If anything, the passing scores should have been raised rather than lowered," he wrote. Plaintiffs said that they would appeal the decision.

Association of Mexican-American Educators v. State of California, C92-3874WHO

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Ban on Religious Speech In Workplace Overbroad

(February 97)

The California State Department of Education (CDE) may not prohibit religious advocacy in the workplace or the posting of sacred materials around the office. The Ninth Circuit, U.S. Court of Appeals ruled in a recent opinion that such prohibitions by an employer violate freedom of speech.

Monte Tucker worked as a computer analyst in the CDE's child nutrition and food distribution division. He was told by his supervisors to stop proselytizing at work by "initiating or promoting religious discussions" during the work day. Tucker was also told to refrain "from displaying or promoting religious books, pamphlets, tracts, brochures, pictures, etc., outside the inner perimeter surfaces of the partitions" that defined his office space. Tucker filed an action against CDE charging a violation of his First Amendment speech rights.

In its ruling, the 9th Circuit said CDE officials failed to show that the restrictions on employees were necessary to prevent disruption in the workplace and enhance worker efficiency. "There is not only no evidence of disruption in general, but there is no evidence that any employee other than Tucker ever engaged in any kind of 'religious advocacy.'" Moreover, there was no evidence in the record that any of Tucker's co-workers complained about his speech. "What Tucker, a computer analyst in the Child Nutrition and Food Distribution Division, discussed in his cubicle or in the hallway with other computer analysts, clearly would not appear to any reasonable person to represent the views of the state, " said the court.

Although the government has a legitimate interest in avoiding the appearance of supporting religion and in furthering the efficiency of the workplace, those interests were insufficient to support the Department's ban on religious advocacy.

It was not reasonable for CDE to allow employees to post materials around the office on all sorts of subjects, and forbid only the posting of religious information and materials.

The Department's orders were not content neutral, they specifically targeted religious speech, a form of expression that is obviously of public concern. The court said:

Banning the posting of all religious materials and information in all areas of an office building except in employees' private cubicles simply goes too far. It is not a reasonable means of achieving the state's legitimate ends.

No member of the public had been exposed to religious speech or displays and none had complained about Tucker or any other employee's conversations about religion. The state interests were insufficient to support the ban on religious advocacy, and the order prohibiting the posting of religious materials was clearly unreasonable.

Comment: This opinion is one of the first to consider the issue of the scope of permissible religious speech and advocacy in the workplace. The U.S. Supreme Court has not yet ruled on the constitutionality of a total ban on religious speech by employees who work in government offices. The basis for the 9th Circuit's holding can be found in the case law governing employee speech in the workplace. The court used a balancing test to determine whether or not the employee's speech was protected. This was first articulated in Pickering v. Board of Education (1968) 391 U.S. 563, where the Supreme Court balanced the employee's first amendment rights as a citizen against the government employer's need to regulate the work environment. In this case, as in Pickering, the Department of Education failed to show that its interests outweighed the employee's interests in free expression.

Tucker v. State of California Dept. of Education (9th Cir. 1996) __F.4th__

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School District Liable for Failure to Warn

(Feburary 97)

A school district is liable when it writes a letter of recommendation for a former employee and fails to disclose information about past sexual misconduct. The California Supreme Court ruled in Randi W. v. Muroc Joint Unified School District, that a Fresno school district could be sued for not warning prospective employers that a former administrator had been accused of molesting students

The Supreme Court' s ruling was the result of a lawsuit filed on behalf of Randi W., a thirteen year old middle school student, in the Livingston School District. She claimed that the vice-principal of the school, Robert Gadams, sexually molested her in his office. He was subsequently charged and pleaded guilty to a misdemeanor of unlawful touching.

The pupil sued three Fresno and Kern County school districts that had provided references for Gadams. She charged that the former employing school districts had committed fraud and negligent misrepresentation when they wrote letters of recommendation to future employers and failed to disclose the fact that there had been complaints of sexual harassment filed against the vice-principal when he was employed by them. She also claimed the districts were negligent when they failed to report the alleged incidents of sexual misconduct to Fresno County authorities for investigation.

The Court unanimously agreed that the Muroc Joint Unified School District was guilty of fraud and negligent misrepresentation when it wrote a glowing letter of recommendation on behalf of Robert Gadams to the Livingston Middle School, which subsequently hired him as a vice principal. Muroc gave Gadams a positive recommendation, although according to court records, it had disciplined him for sexual misconduct and forced him to resign.

The letters from the former districts with their unqualified recommendations and positive assertions regarding Gadam's character were false and misleading because they knowingly concealed material facts regarding Gadam's sexual misconduct with former students. The letters of recommendation amounted to an "affirmative misrepresentation" that presented a "substantial risk of physical harm to a prospective employer or third person," said the Court. Thus, they could form the basis for tort liability for fraud or negligent misrepresentation. The school districts were obliged to disclose all of the facts about Gadam's sexual misconduct.

The justices did not find that the district could be held liable for negligence for failing to report the allegations to proper authorities under the Child Abuse and Neglect Reporting Act. (Penal Code, § 11164 et seq.) The court said that the Muroc district was only responsible for students "within its custodial protection," and a student in the Livingston district did not qualify under the law.

Comment: This opinion expands the limits of tort liability for school districts. Former employing school districts are now under a legal obligation not to negligently or intentionally misrepresent an employee's job qualifications to future employers. "One of society's highest priorities is to protect children from sexual or physical abuse," said the Court. Employers will be liable for any physical harm to another which results from reliance on misrepresentations in the reference letters.

Randi W. v. Muroc Jt. Unified School Dist., (1997) ___Cal.4th___

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Religious Club Can Meet On Campus

(March 97)

A public high school cannot deny a student religious club the opportunity to meet on campus during the lunch hour, if other student groups are allowed to meet during that time, ruled the United States Court of Appeals for the Ninth Circuit in Ceniceros v. Board of Trustees of the San Diego Unified School District.

Melanie Ceniceros, a student at University City High School (UCHS), asked if she could form a student religious club that would meet in an empty classroom during the school lunch period. All students had the same lunch period and several other student clubs met during that time.

The San Diego Unified School District approved the club's formation, but denied the request to use a classroom during the lunch period. The District argued that it did not have to provide an empty classroom for the religious club to use because the lunch hour did not fall within the Equal Access Act's definition of "noninstructional time." The Act provides, in part:

It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of religion, political, philosophical, or other content of the speech at such meetings. (20 U.S.C, § 4071 (a).)

The Ninth Circuit rejected this, and determined that the lunch period at UCHS was clearly "noninstructional time." The court ruled that the school could not deny Ceniceros' group the opportunity to meet during lunch.

The court emphasized that the religious group's right to meet was defined by the extent to which other student groups were permitted to meet. "The Act is about equal access. If a school district wanted to prohibit religious groups from meeting during lunch, the school need only make its prohibition neutral, so that all noncurriculm-related groups are barred from meeting at lunch," said the court. The Act requires all student groups to be treated alike. The establishment clause of the U.S. Constitution is not violated by such equal treatment.

A "limited open forum" exists whenever a school grants an opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time. In this case, there were many different types of clubs meeting during that time. The students were not required to attend the meetings of any club and there was no risk that student would perceive the club as an official school activity.

The district could explain to the public that attendance at the meetings is purely voluntary since "no formal classroom activities were involved and no school officials actively participated. The court concluded that the Act does not permit schools to bar religious meetings on the basis that use of the school facilities for religious meetings would violate the state constitution. The rights granted by federal law under the Equal Access Act supersede those under the California Constitution.

Comment: A previous opinion in this case was filed on July 13, 1995, (66 F.3d 1535). It was withdrawn with no explanation given for the court's action. The 9th Circuit's decision is in accord with a statement of principles issued by the United States Department of Education on August 10, 1995, which states that under the Equal Access Act "student religious groups at public secondary schools have the same right of access to other facilities as is enjoyed by other comparable student groups." The guidelines also state that lunch periods, as well as student meetings held before and after the school day are to be considered noninstructional time under the Act.

Ceniceros v. Board of Trustees of the San Diego Unified School Dist. (9th Cir. 1997) ___F.3d___

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Least Restrictive Environment

(March 97)

The U.S. Supreme Court on February 18, without comment, upheld a U.S. FifthCircuit Court of Appeals decision that the Individuals with DisabilitiesEducation Act (IDEA) does not require a school district to provide services for a disabled student at the school nearest her home. This action let stand a Texas school district's decision that a disabled student is best served by a school nearly twice as far from her home as the one in her neighborhood.

Last July, the Fifth Circuit ruled that deciding where to place a disabled student for the best education with scarce resources is a "policy issue" reserved for educators under IDEA. The student's mother had appealed the Fifth Circuit's decision in Katherine M. v. Flour Bluff Independent School District, citing the IDEA least restrictive environment requirement "... that to the maximum extent appropriate, children with disabilities...are educated with children who are not disabled...."

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Anti-Affirmative Initiative Injunction Overturned

(April 97)

A three judge federal appellate panel recently overturned an injunction issued to stop the implementation of Proposition 209, a ballot initiative that banned race and sexual preferences in public programs in California. "There is simply no doubt that Proposition 209 is constitutional," said the Ninth Circuit, U.S. Court of Appeals.

Proposition 209 was enacted by 54 percent of California voters in November 1996. On November 6, 1996, Governor Wilson issued an Executive Order implementing it.

A restraining order was granted blocking implementation of the intiative shortly after the voters approved it, on the grounds that it might unconstitutionally disadvantage minorities and women. The federal district court concluded that opponents of Prop. 209 were likely to succeed in their claim that the measure violated constitutional equal protection rights. (See Coalition for Econ. Equity v. Wilson (N.D. Cal. 1996) 946 F. Supp. 1480.)

The Ninth Circuit lifted the injunction blocking the measure, saying it was neutral and nondiscriminatory. "We must conclude, as a matter of law, Proposition 209 does not violate the United States Constitution," wrote Judge Diarmuid F. O'Scannlain. "A system which permits one judge to block with the stroke of a pen what 4,736,180 state residents voted to enact as law tests the integrity of our constitutional democracy," said the Ninth Circuit in rejecting the injunction.

The decision orders federal district court Judge Thelton Henderson to lift the temporary ban on enforcing Proposition 209. The Ninth Circuit found the law neutral on its face. "Rather than classifying individuals by race or gender, Prop. 209 prohibits the state from classifying individuals by race or gender," said the court. It "does not violate the Equal Protection Clause in any conventional sense."

"Where a state denies someone a job, an education or a seat on the bus because of her race or gender, the injury to that individual is clear," said the court. In this case, "no one contends that individuals have a constitutional right to preferential treatment solely on the basis of their race or gender."

Civil rights attorneys challenging Proposition 209 said they would appeal the ruling and ask all of the judges on the Ninth Circuit to review the opinion. It is expected that the issue will ultimately be reviewed by the U.S. Supreme Court.

The Coalition for Economic Equality v. Wilson (1997) ___F.3d___

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District's Suspension Upheld

(September 96)

In a surprising reversal, the Ninth Circuit U.S. Court of Appeals ruled that high school student, Sarah Lovell's free speech rights were not violated when she was suspended for three days for allegedly threatening a school counselor over a class scheduling problem.

The court withdrew its earlier opinion where it held that the Poway Unified School District could not discipline the student (see May 1996, CELR) and issued another opinion. The same three judge panel gave no explanation for reaching the opposite conclusion in its latest ruling.

What Lovell actually said to the counselor remains in dispute. Lovell denied that she threatened the counselor and claimed she merely uttered a "figure of speech" under her breath. She also claims she apologized for her inappropriate comment. The counselor said the student walked into her office and said, "if you don't give me this schedule change, I'm going to shoot you." The counselor reported this to the Assistant Principal later in the day. Two days later after a meeting with Lovell and her parents the student was suspended.

The Ninth Circuit concluded that "threats of physical violence are not protected by the First Amendment under either federal or state law." Since Lovell's statement was not constitutionally protected speech the school district could discipline her without violating her First Amendment rights.

Expressing concern about the atmosphere of violence in the public schools, the Court of Appeals found that school officials acted properly in treating Lovell's statement as a threat and suspending her. "We recognize that violence is prevalent in public schools today, and that teachers and administrators must take threats by students very seriously," said the court. "It is for this reason that we cannot ignore the fact that Sarah Lovell has failed to prove that she did not utter the statement that directly and unambiguously threatened physical harm to her guidance counselor."

The award of attorney's fees to Lovell as a prevailing party was also vacated.

Lovell v. Poway Unified School District (9th Cir. 1996) ___F.3d___

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School Uniform Guidelines

(September 96)

Long Beach Unified School District was the first district in California to successfully implement a mandatory uniform program pursuant to Education Code section 35183.

The Long Beach uniform policy was challenged by various advocacy organizations who have agreed to dismiss their lawsuit and enter into a settlement agreement with the school district. The District claims that school violence has dropped by about a third since the uniform program was implemented.

Under the terms of the agreement, the District will provide information to parents about the availability of financial assistance for disadvantaged students and about the opt-out procedure available for parent who do not agree to the policy. The District's Director of Attendance will assist parents who have concerns or questions about school uniforms and each school site will have a designated staff person who will be responsible for implementing the policy.

The U.S. Department of Education recently issued a "Manual on School Uniforms" that provides some additional guidance on this issue.

· Religious Expression - Students may display religious messages on items of clothing to the same extent that they are permitted to display other comparable messages. Under the Religious Freedom Restoration Act schools generally may not prohibit the wearing of head scarves or yarmulkes when they are part of a student's religious practice.

· Rights of Expression - A uniform policy may not prohibit students from wearing buttons that support political candidates, so long as they do not interfere with discipline or the rights of others. A uniform policy may prohibit items that "undermine the integrity of the uniform. " This would include a sweatshirt that has a political message on it that also covers or replaces the type of shirt required by the uniform policy.

· Mandatory Message - Schools should not impose a form of expression on students by requiring them to wear uniforms bearing a substantive message, such as a political message.

School districts can obtain a copy of the U.S. Department of Education's manual by calling the Safe and Drug Free Schools office at 1-800-624-0100.


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