Education Law Notes

CA as a state for education law

  1. 10th Amendment – specifies the powers not delegated to the US by the Const, nor prohibited by it to the States, are reserved to the States respectively, or to the people
  2. State has power through the 10th Amendment, education is a power of the state
  3. Key CA Const Provisions Relating to Educations – fundamental right to educations:
    • Article 9 Sec 1
    • Article 9 Sec 5
    • Article 16 Sec 8(a)
  4. 14th Amnd – nor shall any State deprive any person of life, liberty, or property, without due process of law
    • State
    • Person
    • Liberty
    • Property (your job)
    • Due process of law


Sources of Educational Law

  1. Constitutional Law
    • Federal
    • State
  2. State
    • Federal
    • State
  3. Administrative Law
    • Federal
    • State
  4. Contract Law
    • Individual
    • Collective
  5. Judicial
    • Federal
    • State


Three key entities for making decisions about education

    • State
    • Parents
    • Student


Education Code 49069 – Parents have absolute right of access to any and all pupil records related to their children that are maintained by school districts or private schools. The editing or withholding of any of those records, except as provided for in this chapter, is prohibited.



  1. The right to homeschooling is a matter determined by state law. While CA requires children between the ages of 6 and 18 to attend school full time, there is an exception for attendance at a full-time privates school and for instruction by a tutor. The latter provides that children may be instructed for at least three hours a day for 175 days a year by a tutor in the subjects taught in public schools.
  2. Unlike teachers in private schools, the tutor must hold a state credential for the grade taught.
  3. This provision does not apply to homeschoolers. Homeschooling is a type of private schooling and not the equivalent of tutoring.


Rights within Public Schools

  1. The Parental Involvement Act conveys additional rights to parents, including the right to observe in their child’s classrooms, to meet with their child’s teachers and principal, to request a particular school for their child and to receive a response from the district, to refuse to give permission for psychological testing involving their children, to have a safe school environment, and to be eligible for membership on a school site committee.
  2. Parents, guardians, and nonstudents over the age of 16 who willfully interfere with classes or school activities are subject to criminal penalties.


Expanding Parent Choice

  1. Parents may select any school in the district for their children.
  2. Parents can also seek to have their children attend other districts pursuant to transfer agreements between two or more school districts.
  3. School districts may accept transfers from other districts.
  4. Prop 209 prohibits discrimination against, or preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in public employment, public education, or public contracting.
  5. No Child Left Behind Act (NCLB) in 2001: provides federal funding for education of low-income and minority students, NCLB permits parents whose children are in low-performing public schools receiving Title I funds to transfer to higher-performing traditional and charter schools in the district.
  6. Parent Constitutional Rights cases
    • Meyer v. Nebraska – right to control child’s upbringing
    • Pierce v Society of Sisters – right to choose a private school
      • Ct stated that this responsibility for education belonged to the child’s parents, and that the ability to make such a choice was a “liberty” protected by the – Fourteenth Amendment.
    • West Virginia State Board of Educ v Barnette – right to be free from compulsory flag salute
    • Traxel v Granville – parents, not judges, should determine visitation rights for children
  7. How strong are parent constitutional rights in schooling?
    • No Const right exemption from compulsory schooling
    • No Const right to home schooling
      • But see Jonathan L v Supreme Ct –
        • US Sup Ct used rationale test in Pierce
        • If restriction on parents’ right to home schooling satisfies strict scrutiny by showing a compelling state interest, it will be const
        • Whether child’s safety based on parent child abuse of siblings satisfies compelling state interest to deny home schooling is a matter for trial court to decide
    • No constitutional right to curricular exemption (unless based on religion)
    • Other than choosing a private school, parent rights are shaped by state law
  8. Intradisctrict choice – see Ed Code 35160.5 – parents have right to choose schools within districts
  9. Interdisctrict choice – parent can choose to send kid to dif district (48350 -“open enrollment act”) subject to certain restrictions
  10. Choice options take into account race and ethnic diversity in all of these


Charter Schools

  1. A charter school essentially is a newly created public school that is relatively free of state regulation. Both staff and students are there by choice.
  2. Because they are public schools, charter schools must recognize the constitutional rights of their students and teachers under the terms of the federal and state constitutions.
  3. Two kinds of charter schools
    • Newly created school (start up charter)- entrepreneur based – EC 47605 – private schools cannot convert
    • Converted public school (conversion schools) EC 47605

Starting a Charter School

  1. Racial balance provision requires charter schools to reflect the racial balance of the general population within the school district, not the school district population.
  2. Once completed, the charter petition is presented to the district’s governing board for a public hearing, followed by board action to approve or reject the petition.

Operating a Charter School

  1. Charters can be granted for up to five years.
  2. A charter can be renewed by its grantor for five-year periods if the school continues to meet the conditions set forth for granting the initial charter and if the school meets specified academic proficiency standards.
  3. Charter schools must observe the minimum age for school attendance and must meet the same statewide student testing requirements as traditional public schools, including participation in the CA HS Exit Exam (CAHSEE).
  4. Teachers of core subjects must hold a state credential.


Wilson v State Board of Education

  1. Key constitutional provisions referenced in Wilson
    • Article IX Sec 1: (public purpose doctrine) – general diffusion of knowledge
    • Article IX, Sec 5: System of common schools (uniformity)
    • Article IX Sec 6: public schools under exclusive control of public officials (non-delegation doctrine)
    • Article IX Sec 8: public $ for public schools
    • Article XV! Sec 5: no public money to or in aid of or to support or sustain any religious privates school (not direct or indirect aid to religious entities)
  2. The Legislature has plenary power over public schools
    • The Charter Schools Act represents a valid exercise of legislative discretion aimed at furthering the purposes of education. Having created the charter school approach, the Leg can refine and expand it, reduce or abolish charter schools altogether. In the meantime the Leg retains ultimate responsibility for all aspects of education, including charter schools
  3. Charter Schools are part of CA’s public school system
    • It is clear that the Act brings charter schools within the system uniformity requirement because
      • Their students will be taught by teachers meeting the same minimum requirements as all other public school teachers
      • Their education programs must be geared to meet the same state standards, including minimum duration of instruction, applicable to all public schools;
      • Student progress will be measured by the same assessments required of all public students.
  4. Charter Schools are under the exclusive control of officers of the public schools and fall under the jurisdiction of the public school system
    • Charter schools are public schools because charter schools are part of the public school system. Further, the Leg has specifically declared that charter schools are under the exclusive control of the officers of the public schools
    • Although charter schools have operational independence, an overarching purpose of the charter school approach is to infuse the public school system with competition in order to stimulate continuous improvement in all its schools
    • The very destiny of charter schools lies solely in the hands of public agencies and offices, from local to the state level.
    • Even a school operated by a nonprofit could never stray from under the wings of the chartering authority, the Board, and the Superintendent.
    • With the Charter Schools Act, the Leg has exercised its discretion to sanction a certain degree of flexibility and operational independence, thereby giving the nod to healthy, innovative practices and experimentation. Central to its intent is the goal of stimulating continuous improvement in all public schools by fostering competition within the public school system itself. And in any event, through their powers to deny petitions and revoke charters, chartering authorities do exercise control over these education functions.
    • The Leg has declared that a charter school shall be deemed to be a school district
  5. The Charter Schools Act as amended does not run afoul of Constitutional prohibitions against public appropriations in aid of sectarian purposes or institutions
    • Charter petitioners must affirm that their school will be nonsectarian in its programs and operations. Charter will be revoked if they violate this
  6. The Act does not impermissibly delegate Leg powers
    • The Leg made the fundamental policy decision to give parents, teachers and community members the opportunity to set up public schools with operational independence in order to improve student learning, promote educational innovation and accomplish related public education goals. From there, the Leg set limits on the number of charter schools that can exist at any particular time and their term; controlled against charter status by way of private charter school conversion; and fixed standards for charter schools. Having set the policy and fixed standards and limits, the Leg did its job.


CA Private Schools

  1. While private schools have a right to exist by virtue of Pierce, the justices recognized that the state has the right to regulate them, even in the absence of any public funding.
  2. What is not regulated: student admissions, teacher credentialing textbooks, the instructional program, and reporting and finances. CA private schools may participate in the state’s students assessment system, but they are not required to do so.
  3. As a matter of federal law, private schools do not have to observe the constitutional rights of their constituents, because these schools are not state entities. But while private schools can select students based on gender and religion, they cannot discriminate on the basis of race
  4. Unless private schools receive federal funding – and most do not – they are not subject to the Individuals with Disabilities Education Act.
  5. CA law requires private secondary schools to observe the free speech rights of their students in the same manner that public schools do.


Voucher Programs

  1. While the US Supreme Court ruled in Pierce that parents have a constitutional right to choose private schools for the education of their children, it said nothing about any responsibility on the part of the state to finance the choice.
  2. A publicly funded voucher system gives parents the means to send their children to the public and private schools of their choice. In addition to empowering parents, a voucher system represents a fundamental change in the financing of education because the money goes to the parents, not schools
    • Voucher goes to parent, who takes it to a school of their choosing and the school cashes it in
  3. Vouchers attracted interest in CA but proponents quickly realized that the state afforded an inhospitable constitutional climate. Article IX, Sec 8 of the state constitution states: “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools.


Restrictive State Constitutional Provisions (voucher programs in CA)

  1. No public money to support or sustain religious entities (anti-establishment provisions)
  2. State is to provide a uniform (or common) system of free public schools (uniformity provisions)
  3. Schooling must serve a public purpose (public purpose provision)
  4. All public money for public schools (exclusivity provision)
  5. Control of schooling resides with public officials(Unconstitutional delegation provision)


Zelman v Simmons-Harris – involves only federal const, doesn’t affect STATE constitutional provisions (ex: CA const)

  1. Original Lemon test
    • A secular government purpose
    • A primary effect that neither advances nor inhibits religion
    • No excessive entanglement of government with religion
  2. Pilot Project Scholarship Program (vouchers) in Ohio – program provides tuition aid for student in kindergarten through third grade, expanding each year though eighth grade, to attend a participating public or private school of the parents’ choosing. Second, the program provides tutorial aid for students who choose to remain enrolled in public schools.
  3. Challenge voucher program as violating the Establishment Clause (prevents a State from enacting laws that have the purpose or effect of advancing or inhibiting religion).
  4. Where a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Est Clause.
  5. “Constitutional only if parents have choices in addition to religious private schools such as nonreligious privates schools and out-if-district public schools.”

Dissent: The program itself clearly advances religious schools – the entire menu of possible education placements are religious in nature.

  1. Only a matter of time before state regulation increases, then is it a violation of Est Clause?


Rendell-Baker v Kohn

  2. Private conduct is not state action simply because the private entity serves a public function
  3. Here the school’s fiscal relationship with the State is not different from that of many contractors performing services for the government.
  4. The decision to discharge the Petitioners was not compelled or influenced by any state regulation. Although the general operations of the school were regulated by the state, specific personnel matters were left to the school. The most intrusive regulation by the state was that it had the power to approve those hired as vocational counselors.

Dissent: The school receives almost all of its funds from the State, and is heavily regulated. This nexus between the school and the State is so substantial that the school’s action must be considered state action.


Goldilocks Test for regulation of private schools under a publicly foundered voucher program


Too Little Just Right Too Much
Violates states constitutional law against delegation of core governmental responsibility for education to private entities ?
    • Constitutes unreasonable interference with property rights of private school
    • Intrudes on free speech and free exercise of religion of private schools and choosing parents
    • Converts privates schools to public schools









Maintaining a Safe Learning Environment

  1. Article 1 Sec 28 – all students and staff of public primary, elementary and junior high and senior high schools have the inalienable right to attend campuses which are safe, secure and peaceful. The Leg has responded by passing several laws that give administrators at public, and in some cases, private, schools the authority to maintain a safe learning environment.
    • Government Forums
      • Public Forum
        • Inherently a place for assembly and speaking
        • Regulated very limited
        • Ex: public park
      • Closed forum
        • Not open to any assembling and speaking
        • Ex: prison
      • Limited open forum
        • May be selectively open for specific categories of assembling and speaking
        • May not engage in viewpoint censorship within the categories
        • Ex: CA public school campuses under terms of the Civic Center Act
  2. Civic Center Act – CA schools as limited open forums – school districts may open facilities to community organizations for recreational, educational, and similar purposes. School districts must permit nonprofit organizations like Boy Scouts PTAs, etc to use facilities if (doesn’t limit the categories – just nonprofit groups):
    • Other facilities are not available
    • Does not interfere with schooling
  3. The Leg added provisions to the CA Penal Code requiring outsiders to register with the principal during school hours. They cannot simply walk onto campus to interact with staff members and students at will.
  4. Also, if it appears reasonable to a school official that an outsider may disrupt school activities, the official can direct the person to leave.
  5. Re. Joseph: nothing prevent a school official from inquiring why an outsider is on campus at any time. It was not necessary for the officer to specify any particular law that was being broken.


Classroom Instruction

  1. Class size reduction – CA enacted a voluntary program that encourages school districts and charter schools to reduce class size in kindergarten through grade three from thirty to twenty students. Districts that do so are entitled to additional funding. At the same time, the Leg imposes funding penalties on districts and charter schools that exceed designated max class sizes.
  2. Prop 227 – all children in CA public schools shall be taught English by being taught in English
    • Schools must offer bilingual instruction if they have twenty or more students with waivers from sheltered English immersion b/c the students are not succeeding. Bilingual learners are taught in their native language while they learn English.
  3. No Child Left Behind Act 2001 – all public schoolteachers, including those in charter schools, must be highly qualified to teach the core academic subjects of English, reading or language arts, math, science, foreign languages, civics and gov, economics, arts, history, and geography. This doesn’t apply to private schools.
  4. IDEA – requires special education teachers to hold at least a BA and have full state certification as a special ed teacher or have passed the state special education licensing exam.




The Influence of No Child Left Behind Act

  1. Each school must make adequate yearly progress as determined by the state on the state’s assessments toward having all students achieve 100% proficiency by 2013-2014.
  2. NCLB –
    • Highly qualified teachers for core subjects in all schools
    • Program improvement for low performing Title 1 schools (including conversion to charter or takeover by EMO)
    • Parent transfer option in Title 1 schools
    • Supplemental services available in low performing schools
    • Student assessment on state tests on ELA, math, science annually in grades 3-8, once in grades 10-12
    • All students in all schools must achieve proficiency or higher by 2014
    • Participation in NAEP in grades 4 and 8


Student Assessment

  1. State enacted student assessment system for students & schools
    • Students – the basic grade-level assessment in core curriculum areas are done pursuant to the state’s Standardized testing and Reporting (STAR)
    • The second part of STAR system is a basic skills test that assesses how CA students compare with students nationwide.
    • The third component is a test administered to Spanish-speaking English learners.
  2. Schools are prohibited from engaging in test preparation activities for the state assessment program and its individual tests.
  3. Students must also take the CAHSEE
  4. IEP – at the request of a parent, the school principal is to ask the governing board to grant a waiver from successfully passing the test in whole or part for a child with a disability if the IEP calls for accommodation or modifications in taking the test, the child has attained the knowledge and skills needed to pass the test, and the child has achieved the equivalent of a passing score on the exit exam while using a modification that fundamentally alters what the HS exit exam measures.


Jonathan L v Sup Ct

  1. If restriction on parents’ right to home schooling satisfies strict scrutiny by showing a compelling state interest, it will be constitutional
  2. Whether child’s safety based on parent child abuse of siblings satisfies compelling state interest to deny home schooling is a matter for trial court to decide


Island Trees School District Board of Education v. Pico

Although school boards have a vested interest in promoting respect for social, moral, and political community values, their discretionary power is secondary to the transcendent imperatives of the First Amendment.

  1. As centers for voluntary inquiry and the dissemination of information and ideas, school libraries enjoy a special affinity with the rights of free speech and press. Therefore, the Board could not restrict the availability of books in its libraries simply because its members disagreed with their idea content.


Equal Protection Clause

Generally, governmental action treating persons differently will be upheld if there is a rational reason for doing so (relaxed judicial scrutiny)

In certain situations, government action must satisfy a compelling purpose test that is narrowly tailored to serve that purpose (strict judicial scrutiny)

    • Suspect classifications (e.g., race)
    • Fundamental rights (e.g., voting)



Foundation Funding

  1. The local property tax has long been the primary source of funding for local governments. The generally decentralized and local character of property taxes provides the opportunity for local communities to have a strong voice in how the tax is levied and how much support is provided to public schools.
  2. One advantage of using property taxes is that they are a generally stable source of revenue.


Serrano v Priest (equity case)

  1. Ct ordered that the state develop a more equal system for funding its K-12 school
  2. CA Constitution Clauses used in Serrano II
    • Art. IV §16(a): “All law of a general nature shall have a uniform operation”
    • Art. I §7(b): “A citizen or class of citizens may not be granted privileges or immunities not granted on the same terms to all citizens”
    • Art I, §7(a): “A person may not be deprived of live, liberty, or property without due process of law or denied equal protection of the laws”
  3. Key Points:
    • Basic aid per pupil benefits rich districts b/c deducted from poor district equalization aid
    • Revenue limit system perpetuates tax rate inequities among districts
    • Voter tax override on revenue limit undercuts equalization (even if none, 20 years necessary to equalize)
    • Funding and student achievement are linked
    • Education is a fundamental right and wealth a suspect classification under CA Constitution
    • Current plan is unconstitutional
  4. Led to “squeeze formula:” per-pupil spending of high and low wealth districts would converge over time – the spending of low-wealth districts would be leveled up and the spending of high-wealth districts would be leveled down.
  5. Next, the CA Sup Ct ruled that despite the Leg reforms, the unconstitutional features that existed in Serrano I remained. The basic aid allotment required by the CA Const had an anti-equalizing effect b/c all districts, rich or poor, received the same amount on a per-pupil basis.


San Antonio Independent School Dis. v. Rodriguez

  1. A school-financing system based on local property taxes was not an unconstitutional violation of the Fourteenth Amendment’s equal protection clause.
  2. “At least where wealth is involved, the Equal Protection Clause does not require absolute equality or precisely equal advantage. Nor indeed, in view of the infinite variables affecting the educational process, can any system assure equal quality of education except in the most relative sense.
  3. Education is not among the rights afforded explicit protection under our Constitution, nor do we find any basis for saying it is implicit so protected.
  4. The ultimate solutions must come from the lawmakers and from the democratic pressures of those who elect them (not the courts).

Dissent (White): The TX system utterly fails to extend a realistic choice to parents b/c the property tax, which is the only revenue-raising mechanism extended to school districts, is practically and legally unavailable.

Dissent (Marshall): It is an inescapable fact that if one district has more funds available per pupil than another district, the former will have greater choice in educational planning than will the later. In this regard the question of discrimination in educational quality must be deemed to be an objective one that looks to what the State provides its children, not to what the children are able to do wit what they receive.


Government Forums

  1. Public Forum
    • Inherently a place for assembling and speaking
    • Regulation very limited
    • Example: public park
  1. Closed Forum
    • Not open to any assembling and speaking
    • Example: prison
  2. Limited Open Forum
    • May be selectively open for specific categories of assembling and speaking
    • May not engage in viewpoint censorship within the categories
    • Example: California public school campuses under terms of the Civic Center Act


CA Schools as Limited Public Forums

  1. School districts may open facilities to community organizations for recreational, educational, and similar purposes
  2. School districts must permit nonprofit organizations like Boy Scouts, PTAs, etc., to use facilities if:
    • Other facilities are not available
    • Does not interfere with schooling

Educ. Code § 38130 et seq. (Civic Center Act)

(See Cal Sch. Law p. 55)


No Child Left Behind Act (2001)

School Accountability

  1. Highly qualified teachers for core subjects in all schools
  2. Program improvement for low performing Title I schools (including conversion to charter or takeover by EMO)
  3. Parent transfer option in Title I schools
  4. Supplemental services available in low performing schools

Student Accountability

  1. Student assessment on state tests in ELA, math, science annually in grades 3-8, once in grades 10-12
  2. All students in all schools must achieve proficiency or higher by 2014
  3. Participation in NAEP in grades 4 and 8


Quest for Fiscal Equity

  1. Lower per pupil expenditure in poor districts results in fewer educational opportunities and lower student achievement
  2. These disparities constitute a denial of equal educational opportunity
  3. Litigation begins in late 1960s to equalize per pupil expenditure across school districts
  4. Lawsuits initially were based on the equal protection clause of the 14th Amendment to the U.S. Constitution


Equal Protection Clause

  1. Generally, governmental action treating persons differently will be upheld if there are rational reasons for doing so (relaxed judicial scrutiny)
  2. In certain situations, government action must satisfy a compelling purpose test that is narrowly tailored to serve that purpose (strict judicial scrutiny)
    • Suspect classifications (e.g., race)
    • Fundamental rights (e.g., voting)


Components of Present California School Finance System

  1. Prop 13 limits local property tax to 1% of assessed valuation
  2. Funding control shifts to state
  3. Other sources (e.g., sales and income taxes) supplant lost property tax revenue because of Prop 13
  4. Prop 4 limits state funding growth
  5. Prop 98 requires minimum of 40% of state budget for K-14 public schooling (has become a ceiling)
  6. General revenue per pupil funding equalized
  7. Categorical funding not equalized
  8. Remaining local funding (e.g., parcel taxes, private fundraising) undercuts equalization


Implications of Student Performance Data

  1. Students perform better on CST than on NAEP. Why?
  2. Concentration of students of color and low income in school results in inequities in student performance
  3. The NAEP test score gap is increasing between white and students of color in CA
  4. What are the implications for school finance?


Quest for Fiscal Adequacy

  1. Disillusionment with fiscal equity – equally lousy
  2. How does fiscal adequacy differ from fiscal equity?
    • Based on education provisions in state constitution general diffusion of knowledge, common schools, uniform operation, efficient, thorough
    • Based on assumption that education of high needs students costs more
    • Focuses on equalization of outcomes, not inputs
    • Relates to predetermined standards of achievement and student assessment programs




Speaking out on matters of public concern

  1. Neither the First A nor Article 1, Section 2 of the CA Const limits the power of school authorities to dissociate themselves from political controversy by prohibiting employees from engaging in political advocacy in the classroom
  2. The Court long has supported the right of teachers to join groups and causes without fear of losing their jobs.
    • Morrison v State Board of Educ – a public schoolteacher cannot be dismissed for lifestyle behavior unless evidence is presented showing unfitness to teach
  3. Speech on matters of public concern is protected but public employee speech on matters of internal working conditions is not protected by the First Amendment
    • Connick v. Meyers: Public employee speech on matters of internal working conditions is not protected by the First Amendment
  4. Teacher use of electronic communication devices and free speech
    • Under Perry, schools can control use of the ECDs they own and the networks they use (eg limited to school business and access to certain websites blocked)
    • Under LA Teachers Assn, school can impose time, place, manner regulations on use of teacher – owned ECDs at school (eg no use during classroom hours except in emergency, no access to school network)
  5. Givhan v Western Lime Consolidated Scholl District – a teacher who expresses views on matters of public concern privately – for ex in the principal’s office -also is protected by the First A
  6. When employees communicate through school-maintained channels of communication, their free speech rights are subject to greater control than when speaking face-to-face. This is because the school can control its own channels of communication.
    • Perry case – the school mail system is not automatically a public forum available to teachers, their associations, and others to disseminating information. A public forum is a place for virtually unrestricted communications
      • School-sponsored channels of communication can be opened or closed at the discretion of the school districts
  7. Baca v Moreno Valley Unified School Dist – under the CA open meeting law (the Brown Act), school board meetings are open to the public, and the public has a right to address the school board on matters related to school affairs. The open session thus constitutes a limited open forum. While the governing board can confine the discussion to school business under Perry, they cannot restrict speech within that category unless it can establish a compelling interest for doing so and can show that its action was narrowly tailored to serve that interest.


Pickering v. Board of Education

  1. School officials violate the First Amendment when they terminate a public school teacher for speaking out as a citizen on matters of public concern.
  2. Public school teachers, as public employees, are entitled to some First Amendment protections. “The problem in any case is to arrive at a balance between the interests of the teacher, as a citizen, in commenting upon matters of public concern and the interests of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.” In this case, the teacher was speaking more as a citizen than as an employee when he wrote the letter to the editor. The statements in the letter did not target any school official that the teacher dealt with on a daily basis.
  3. Unprotected speech under Pickering v Board of Educ
    • Breaches confidentiality or undermines the superior – subordinate relationship
    • Impedes teacher performance or interferes with school operation
    • Constitutes false statements mad knowingly or recklessly


Mt. Healthy City School District Board of Education v. Doyle

  1. Court held that an employer can successfully defend itself in First Amendment employee litigation by showing that it would have made the same decision (to fire the teacher) in the absence of the protected speech activity.
  2. An employee in a First Amendment retaliation case must show that the adverse employment action was taken in response to protected First Amendment activity.
  3. The employee must show that the employee’s speech or expression played a “substantial role” in the adverse employment decision.
  4. But the employer can show that it would have made the same employment decision even if the employee had not engaged in the protected activity. This is now known as a “Mt. Healthy defense.”
  5. Three part test under Mt Healy School District v Doyle
    • Employee must show that speech was constitutionally protected
    • Employee must show that protected speech played a substantial role in a negative employment action
    • Employer must show convincing reasons unrelated to the exercise of the right to justify the employment action


Garcettie v Ceballos

  1. No constitutional protection for speech on matters of public concern made by a public employee while acting within the employee’s scope of duties – so teacher fired for speaking out about anything – unclear
  2. Ceballos case –
    • Rejected the contention that employees may curtail employee free speech rights on the job by creating excessively broad job descriptions
    • Speech related to scholarship or teaching may be treated differently
  3. Public employee free speech rights are broadly protected under the CA Const. Also, when a CA public employee speaks out about possible wrongdoing, the Whistleblower Protection Act comes into play



  1. Student speech loses its protection under the First A if it constitutes derogatory and injurious remarks directed at student’s minority status such as race, religion, and sexual orientation.
  2. Threats of physical violence, whether made on or off campus are not protected by the First A
  3. CA has a hate-crime statue outlawing force or threat of force that intimidates, oppresses, or threatens a person’s exercise of protected rights b/c of the person’s race, color, religion, ancestry, national origin, disability, gender, or sexual orientation or perception of having one or more of these characteristics
    • Also specifies that no person is to be penalized for speech alone; it must be shown that the speech threatened violence against a specific person or group and that the speaker had the apparent ability to carry out the threat.
  4. Bethel – student speech that is lewd, profane, or indecent is not entitled to any constitutional protection at all
  5. School officials can regulate the use of such electronic signaling devices at school, school-sponsored activities, and at other times when students are under the supervision of school employees
  6. The fact that school official might disagree with the viewpoints being expressed in a student publication is not grounds for censorship.
    • Educ Code gives school officials the right to preview for limited purposes what students want to include in school sponsored publication


Tinker v. Des Moines School Dist.

  1. Student expression on public secondary school campuses is constitutionally protected under the Amends unless
    • It creates material disruption
    • It results in substantial invasion of the rights of others
  2. Mere apprehension of disturbance or an offense given is not enough.
  3. Students (and teachers) do not lose their constitutional rights at the schoolhouse door. School officials’ duties to provide a safe learning environment must be balanced against students’ free-expression rights. School officials may not censor student speech because of an “undifferentiated fear or apprehension.” Dissent: Goal of schools is to inculcate values – students are to be seen, not to be heard. (Blackman)


Morse v Frederick

Rule: Student speech advocating drug use enjoys no constitutional protection under the First Amendment

  1. Although students do have some right to political speech even while in school, this right does not extend to pro-drug messages that may undermine the school’s important mission to discourage drug use.


Student Dress, Grooming, Uniforms

  1. All that is necessary to justify controlling the length and style of hair is a legitimate concern on the part of the school administration relating to the educational process.
  2. Educ Code recognizes that gang-related apparel is hazardous to the health and safety of the school environment and gives governing boards the authority to ban it through a dress code policy


Right of Association

  1. Widmar v Vincent – student-associational rights on a public college campus – Equal Access Act, a federal statute extending associational rights to public secondary school students.



  1. Meyer v Nebraska – declared a statute preventing instruction in non-English languages to students below the 8th grade as unconst
  2. Epperson v Arkansas – statute prohibiting the teaching of evolution in the state’s public school as unconst advancement of religion
  3. Keefe v Geanakos – recognized that academic freedom encompasses a teacher’s explaining the nature and origin of the term motherfucker as contained in an assigned article
  4. Lindros v Governing Board – ct distinguished between the use of profane words in a classroom and their inclusion in teaching material
    • We could not impose upon teachers of writing, as a matter of law, that they must tell and teach their students that in depicting the jargon of the ghetto, the slum, or the barrack room, characters must speak in the pedantry of Edwardian English
  5. Downs v LA – the school could insist that its teachers convey the school’s chosen curricular message. Downs could advance his own views on homosexuality on his own time, but not when he is speaking as the government, unless the government allows him to be its voice
  6. Lopez v Tulare Joint Union HS – school officials were acting in accordance with the Educ Code when they refused to permit profanity to be included in a video


Hazelwood Sch. Dist.. v. Kuhlmeier

  1. Public school can exercise content control of student speech when exercised through school channels of communication
    • The channel has not been converted into a public forum
    • There is a legitimate pedagogical purpose
  2. Note: Hazelwood does not apply to official school publications in CA b/c of Ed Code 48901
  3. There is a fundamental difference between private student speech and student speech that occurs in school-sponsored activities. Educators have greater authority to control school-sponsored student speech because the public might reasonably believe such speech bears “the imprimatur of the school.” Educators “do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.”
  4. “A school must also retain the authority to refuse to sponsor student speech that might reasonably be perceived to advocate drug or alcohol use, irresponsible sex, or ‘conduct otherwise inconsistent with the shared values of a civilized social order,’ or to associate the school with any position other than neutrality on matters of political controversy.”
  5. Dissent: The majority erred in making a distinction between student-initiated and school-sponsored speech. The Tinker standard of material and substantial disruption should govern all student free-expression cases. “The case before us aptly illustrates how readily school officials (and courts) can camouflage viewpoint discrimination as the ‘mere’ protection of students from sensitive topics.” (Justice William Brennan)


Controlling Student Speech through their personal electronic communication devices

  1. On campus
    • Banning ECDS (viable?)
      • Applying time, place, manner rules
      • Material disruption and or substantial interferences with the rights of others
      • Lewd, profane, indecent, or advocating drug use
  2. Off campus
    • Reasonable foreseeability that speech would become known at school
    • Material disruption and/ or substantial interference wit the rights of others
    • The more harsh the discipline, the more justification necessary
  3. Just b/c you don’t feel uncomfortable off-campus doesn’t mean you’re open to litigation
  4. Bullying is like denying the student the equal opportunity to learn – student is not going to class


FEDERAL AND CA CONSTITUTIONAL LAW- schools can’t teach religion but they can teach about religion

    • It must be taught objectively as part of a secular program of education; the Bible must not be used as the only source of historical fact or as if the Bible were actual literal history; students must be assigned readings from non-biblical sources of ancient Middle East history; the course must not teach religious doctrine or a sectarian interpretation of the Bible; and the district is not to accept instructors for the course based in whole or part on a religious test or profession of faith


  1. CA Const Article I
    • Sec 4: Free exercise and enjoyment of religion without discrimination or preference are guaranteed. This liberty of conscience does not excuse acts that are licentious or inconsistent with the peace or safety of the State. The Legislature shall make no law respecting an establishment of religion.
      • Free exercise and enjoyment of religion without discrimination or preference are guaranteed.


Establishment Clause Tests for Public School Involvement with Religion

  1. Secular purpose
  2. Primary effect that neither advances nor inhibits religion
  3. No excessive entanglement of government with religion
  4. No government endorsement of religion
  5. Absence of a coercive effect




The Pledge of Allegiance

  1. In 2004, the Sup Ct sidestepped ruling on whether a school district policy requiring teachers to lead students in reciting the Pledge of Allegiance constitutes a violation of either the First A est clause or the free exercise clause, even though the words “one nation under God’ are part of the pledge.
  2. The First A prevents a public school from compelling anyone to salute the flag


School Prayer

Graduation Prayer & Religious Speeches

Lee: the principal’s inviting the rabbi to give the prayer then advising him to deliver a nondenominational prayer as impermissible gov endorsement of religion. It made no difference that the prayer was nondenominational

  1. Graduation ceremony is held on district’s property, financed with district funds, and only selected students are allowed to speak. The principal retains supervisory control and has final authority to approve speech topics
  2. Given the control the school has over the graduation ceremony, allowing students to give a proselytizing valedictory speech would constitute gov endorsement of religion and have a coercive effect on nonbelievers
  3. Policy Regarding Graduation Speech
    • The graduation ceremony is a limited open forum
    • Pursuant to a random drawing, a senior without a speaking role can give opening remarks and closing remarks that:
      • Honor the occasion
      • Bring the audience to order
      • Focus the audience on the purpose of the event
    • Other students with speaking roles including the valedictorian must relate their comments to:
      • The purpose of graduation
      • Honoring the occasion and those present
      • Addressing the student’s schooling, graduation, and life purpose
    • A written disclaimer shall be printed in the program indicating the messages reflect the student’s own viewpoints and not those of the school or its employees.
    • Student expression of a religious nature shall be treated the same as secular expression on an otherwise permissible subject as identified above.
  4. School sponsored or endorsed public prayer: Clearly, school-sponsored public prayer at the beginning of the school day is unconstitutional but setting aside a time for silent meditation would, by itself, not violate the Const
  5. Private prayer & religious exercise: it is quite clear that both students and teachers have a right on their own engage in nondisruptive private prayer during the school day
  6. So long as prayer is genuinely student-initiated, and not the product of any school policy which actively or surreptitiously encourages it, the speech is private and protected. This right extends to groups of students as well.
    • For example, as long as it is not disruptive, nothing precludes students from holding a prayer rally around the school flagpole or engaging in group prayer at a lunch table in the school cafeteria. Similarly, students can distribute religious literature on the school campus b/c handing out literature is a form of free speech.
    • At the same time, the school has the right to limit the time, place and manner of such distribution to prevent disruption of normal school activities.


Religion in the Classroom

  1. Displaying a religious symbol like the Ten Commandments in the classroom is impermissible
  2. However, the Ten Commandments can be included as a topic of study within the school curriculum
  3. Teachers need to be sensitive to the wearing of religious attire in the classroom. School districts must reasonably accommodate the wearing or religious attire under Title VI of the 1964 Civil Rights Act, but not to the point of imposing an undue hardship.
  4. While the wearing of a small religious symbol such as a cross or a Star of David would be appropriate, the wearing of an extremely large cross or Star of David that lit up periodically would not be
  5. Coalition has developed six guidelines in deciding what public schools can and cannot do in incorporating religion into the instructional program.
    • The school’s approach to religion must be academic, not devotional
    • The school may strive for student awareness of religion but should not press for student acceptance of any one religion
    • The school may sponsor study about religion but may not sponsor the practice of religion
    • The school may expose students to a diversity of religious views but may not impose any particular view
    • The school may educate about all religions but may not promote or denigrate any religion
    • The school may inform the student about various beliefs but should not seek to confine him to any particular belief
  6. Ex, if a teacher’s assignment involves writing a poem, the work of a student who submits a poem in the form of a prayer should be judged on the basis of academic standards (such as literary quality) and neither penalized more rewarded on account of its religious content


Abington Township v Schempp

  1. Mandatory reading of Bible verses at public schools encroached on both the Free Exercise Clause and the Establishment Clause of the First Amendment since the readings and recitations were essentially religious ceremonies and were “intended by the State to be so.”
  2. The ability of a parent to excuse a child from these ceremonies by a written note was irrelevant since it did not prevent the school’s actions from violating the Establishment Clause.
  3. Neither a State nor the Federal Government can constitutionally force a person ‘to profess a belief or disbelief in any religion’”. Neither can constitutionally pass laws or impose requirements which aid all religions as against non-believers, and neither can aid those religions based on a belief in the existence of God as against those religions founded on different beliefs”.
  4. Dissent: “God Save this Honorable Court” and that Congress opens its sessions with prayers, among many other examples. Stewart believed that such practice fit with the nation’s long history of permitting free exercise of religious practices, even in the public sphere.


Santa Fe Independent School v Doe

The District’s policy permitting student-led, student-initiated prayer at football games violates the Establishment Clause. The Court concluded that the football game prayers were public speech authorized by a government policy and taking place on government property at government-sponsored school-related events and that the District’s policy involved both perceived and actual government endorsement of the delivery of prayer at important school events. Such speech is not properly characterized as “private.”

Dissent: material objections were, first that the policy on which the Court has now ruled had not yet put in to practice. “[T]he question is not whether the district’s policy may be applied in violation of the Establishment Clause, but whether it inevitably will be.” Second, Rehnquist also stated that the speech in question would be private, chosen and delivered by the speaker, rather than public, school-sponsored speech.


Virginia State Board of Educ v Barnette

  1. Compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. “Compulsory unification of opinion,” the Court held, was doomed to failure and was antithetical to First Amendment values.


Access to Religious Groups on Campus

  1. Student religious groups and the Equal Access Act: The court ruled that permitting a voluntary student Bible club to meet on the campus during the school day as a recognized student club with a faculty sponsor would have the primary effect of advancing religion ad would create excessive entanglement between the school and religion
  2. Prince: the decision seems to have blurred the distinction in Mergens between noncurricular and curricular student clubs by permitting both to meet during student/staff time and to benefit from nonschool funds controlled by the student council
  3. Community use policies: SC ruled that the First A prevents a school district from denying a religious group access to its facilities if it permits other organizations to use them under the terms of the community use policy
  4. CA’s Civic Center Act provides that school districts may allow community groups to use their buildings and grounds for recreational, educational, political economic, artistic, or moral activities including the conduct of religious services by churches that have no suitable meeting place. School districts are required to authorize the use of their facilities or grounds to nonprofit organizations, clubs, associations such as the Girl Scout when an alternative location is not available. In effect, public school districts in this state are limited open forums
  5. Equal Access Act
    • Applies to public secondary school receiving federal funding
    • Limited open forum if one or more noncurricular student groups has access to campus during noninstructional time
    • No discrimination on basis of speech content
    • No school or employee sponsorship of student group
    • Employees cannot participate in student religious meetings
    • School may not influence form or content of prayer at religious meetings
  6. What is a Noncurriculum-Related Student Group?
    • A student group is not related to the curriculum if:
    • The subject-matter of the group is not taught (e.g., French Club)
    • The group is not part of student government
    • Participation in the group is not required for a course (e.g., band)
    • Participation in the group does not convey academic credit

Bd of Educ. Westside Comm. Schools v. Mergens (1990)


Religiously Based Exemptions

  1. CA Educ Code: public school students are exempt from school attendance for observance of a religious holiday or ceremony or attendance at religious retreats
  2. Teachers have the right to opt our of school district evaluations and surveys that ask about religious beliefs. Teachers also may opt out of teaching weekend classes if doing so would conflict with their religious beliefs or practices
  3. There is no assurance that religion can provide the basis for an exemption to activities that public schools require of all students, even when coupled with parental rights.
  4. Religion does not provide an exemption from a neutral law that is generally applied
  5. However, if religion is combined with another right, then an exemption may be required (e.g., right of Amish children to be free from compulsory school law in Wisconsin v. Yoder, 1972)

Employment Division, Department of Human Resources v. Smith



  1. Educ Code 39808 permits the governing board of a school district to provide transportation to students attending private schools upon the same terms, in the same manner, and over the same routes as public school students. However, the statute does not permit providing transportation reimbursement money to parents or guardians of students attending private schools.
  2. Educ Code Section 37253 permit districts to offer supplemental instruction in core academic areas at various times, including the summer. The attny general has advised that private school students can be permitted to attend during the summer b/c the primary beneficiaries are the students and parents, not the private schools


  1. Establishment Clause Tests For Aid to Religious Private Schools
    • Secular purpose
    • Primary effect that neither advances nor inhibits religion (neutrality)
      • No government indoctrination
      • Recipients not defined by religion
      • No excessive entanglement of government with religion

Agostini v Felton (1997)


Indirect Aid Programs through Vouchers and tax credits

  1. Indirect aid does not raise the same const concerns as direct aid, b/c funding arrives at religious and other private schools via the decisions of others



  1. EERA: Educational Employment Relations Act
    • Key members of educational management in public schools are not eligible for unionization under EERA.
    • EERA, like other public sector collective bargaining laws, is modeled on the National Labor Relations Act (NLRA). NLRA provides full bargaining rights to employees in the private sector. Full bargaining rights consist of:
      • The right of employees to organize collectively if they so choose
      • The right of employees to be represented by a single agent
      • Bilateral (management-labor) determination of wages, hours, and other terms and conditions of employment
      • The right to a binding contract between the employer and the union
      • The right to strike or to negotiate binding arbitration of both grievance disputes (those arising under the K) and interests disputes (those arising from the negotiations of the new K)


Full Bargaining Rights under EERA

  1. Right to organize collectively (EERA § 3543(a))
  2. Right to an exclusive bargaining agent (EERA §3543.1(a))
  3. Bilateral negotiation of wages, hours, and other terms and conditions of employment (EERA §§ 3543.1(a) and 3543.2)
  4. Right to a binding contract (§ 3540.1(h))
  5. Right to strike (PERB/judicial interpretation)


Key EERA Provisions and Issues

General Thrust

  1. Full bargaining rights (various provisions)
  2. Relation to Education Code (§ 3540)
  3. Employees covered (§ 3540.1(j))
  4. Employer and union unfair labor practices (§§ 3543.5 -.6)
  5. Organizational security agreements (§ 3546)

Key Issues

  1. Cannot supersede Education Code on teacher contract law(Round Valley Teachers Assoc., Cal. Sup. Ct. 1998)
  2. Judicial deference to PERB (Banning Teachers Assoc., Cal. Sup. Ct. 1988)
  3. Union political influence

Organizational Stage

  1. Bargaining unit determination (§ 3545)
  2. Union recognition/election (§§ 3544 et seq.)

Key Issue

  1. Are charter school employees part of management and thus not eligible to unionize?

Contract Negotiation Stage

  1. Bargainable topics (§ 3543.2) (see Table 4-2 on p. 140 of CSL)
  2. Unfair labor practices (§§ 3543.5 (mgt), 3543.6 (union))
  3. Impasse procedures (§§ 3548 et seq.)

Key Issues

  1. Adversary character
  2. Scope of bargaining
    • Note expansion through PERB three-part test
    • Note expansion through union influence over school board
    • Role of the public (§§ 3547, 3547.5)
  1. Right to strike

Contract Administration Stage

  1. Dispute resolution through grievances and through optional contract provision providing for arbitration (§§ 3543(b) and 3548.5)

Key Issues

  1. Union access to employees via mailboxes under

§ 3543.1(b) for political messages (San Leandro Teachers Assoc., Cal. Sup. Ct., 2009) (See p. 155 in CSL and p. 5 of the book’s update)

  1. Expenditure of agency shop fees/Hudson notice/religious exemption (§§ 3546 et seq.)


THE THREE STATES OF COLLECTIVE BARGAINING – Once a collective bargaining law conveys bargaining rights to employees, the collective bargaining process generally follows three stages

  1. Unionization Stage – unions compete to gain representational rights of employees within the bargaining suit. Once a union is chosen by a majority of employees in the bargaining unit, the union becomes the exclusive bargaining agent for all employees in the unit. This exclusivity gives the union great power at the bargaining table as the single spokesperson for all employees in the bargaining unit. Conversely, the individual employee loses the right to negotiate individually with the employer. The union has a legally enforceable fiduciary responsibility to present all employees fairly, whether or not they are union members.
  2. Contract Negotiation Stage – Union members’ interests at the bargaining table are divergent from those of their employer at the beginning. This stage is best characterized as a power struggle between the employer & the union, conducted within the confines of a legal framework.
    • Collective bargaining statutes specify what the parties can bargain about. Mandatory subjects refer to those matters that the parties must bargain about if one side wishes to do so. Typically, economic matters such as wages and hours of employment fall into this category. Permissive subjects of bargaining are those that the parties can negotiate if both parties agree to do so. For public education, these might include involvement of teachers in the selection of administrators or in curriculum development. Prohibited subjects of bargaining are those that cannot be bargained even if both parties want to do so. Procedures for the termination of teachers that are set forth in a state statute might fall into this latter category.
  1. Eventually the parties will reach agreement and sign a collective bargaining contract
  2. Contract Administration Stage – More impersonal and bureaucratic than the other stages. The agreement regulates the diverse activities of individuals with conflicting interests within the same organizational setting. It rationalizes organizational functioning through a set of mutually acceptable work rules that define the respective roles of the employer, the employees, and the union. It legitimizes the exercise of management authority. It fosters communication between the union and management through periodic deliberative sessions regarding administration of the contract. And equally important, the grievance provisions, including arbitration by a neutral party, are a channel through which disputes may be resolved.



  1. 1961: Brown Act: gave public employees the right to join or not join employee organizations and recognized the right of these organizations to meet with employers to discuss working conditions. However, the school board retained the prerogative to make the final decisions. And there was no process for adjudicating disputes over the application of the Brown Act
  2. 1965: Winston Act: same as Brown Act but added measures establishing dispute resolution mechanisms such as fact-finding and mediation. While the Winston Act gave teacher unions more influence, it did not accord them full bargaining rights.
  3. 1975: EERA: gave teachers full bargaining rights; it does not impose collective bargaining on school districts. It leaves the decision to form and join a union to employees and the process of negotiating a K to the union and the school district. But it does provide the legal framework within which collective bargaining occurs. CA Gov Code 3540-3549 sets forth a number of unfair, or prohibited, labor practices for both public school employers and employee organizations

The Role of Public Employment Relations Board (PERB) – EERA is administered by an independent state agency known as the PERB. CA SC observed that the PERB’s interpretation will generally be followed unless it is clearly erroneous.

Covered Employees and Schools

Deciding on the Appropriate Bargaining Unit & Choosing a Representative

  1. EERA permits one organization to represent all employees within the bargaining unit on matters specified in the statute
  2. A negotiating unit that includes classroom teachers is not considered an appropriate unit unless it includes all classroom teachers employed by the school district
  3. EERA grants employee organizations the right of access to employees at reasonable times and the right to use institutional bulletin boards, mailboxes, and other means of communication subject to reasonable regulation.
  4. If by Jan 1 of any school year, no employee organization has est majority support in the bargaining unit, a majority of employees may submit a petition to the public school employer asking for an election to be conducted by PERB.

Scope of Bargaining

  1. PERB develop a three-part test to determine which topics are mandatory topics of bargaining:
    • The subject is logically and reasonably related to hours, wages, or an enumerated term and condition of employment
    • The subject is of such concern to both management and employees that conflict is likely to occur and the mediatory influence of collective negotiations is the appropriate means of resolving the conflict
    • The employer’s obligation to negotiate would not significantly abridge its freedom to exercise those managerial prerogatives (including matters of fundamental policy) essential to the achievement of the district’s mission
  2. EERA mandatory topics of consultation:
    • Consultation means that the parties can talk about the topics but are not required to bargain over them unless both parties agree to do so.
    • Gov Code 3543.2 (a) specifies that the exclusive representative of certified employees has the right to consult on the definition of educational objectives, the determination of the content of courses and curriculum, and the selection of textbooks to the extent such matters are within the discretion of the public school employer under law
  3. Beyond bargainable & consultive topics are those reserved to the public school employer. Gov Code 3543.2(b) states that all matters not specifically enumerated are reserved to the public school employer and may not be a subject of meeting and negotiating . However, PERB noted that in enacting EERA, the legislature did not intend to deny employees without an exclusive representative the opportunity to speak to their employers individually or through a nonexclusive representative about matters affecting employment, a right that they had under the Winton Act.
  4. Charter schools: 1999 Amendment to the charter school law states that if the charter or the charter school does not specify that the school will comply with statutes and regulations governing tenure or a merit or civil service system, then the discipline and dismissal of teachers at the charter school become mandatory topics of bargaining.

Contract Negotiations

  1. During the negotiation process, the parties may reach impasse, meaning that they have been unable to reach agreement on a contested item of bargaining. EERA defines impasse to mean that the differences in positions are so substantial or prolonged that future meetings would be futile. If PERB agrees that impasse is evident, several things can happen: (see chart on 148)
  2. Gov Code 3548 provides that a mediator can meet with the parties either jointly or separately and take whatever steps the mediator thinks advisable to help the parties over the impasse.
  3. Gov Code 3549 permits the school district to take unilateral action to implement the last offer the union has rejected only after the impasse procedures have been completed. Union challenges to this are likely on a variety of fronts, including going out on strike
  4. When Are Strike Permissible under the EERA
  5. EERA itself is silent on the right to strike
  6. Under PERB rulings only post-impasse continuous strikes are permissible so as not to undermine EERA mandatory procedures for ending impasse (mediation and fact-finding set forth in §§ 3448 et seq.)
  7. PERB’s two-part test:
    • Strike must not cause a total breakdown in basic educational services because education is a fundamental right in California
    • Strike must not be used to leverage gains at the bargaining table

Contract Administration

  1. Once a K has been signed and is in force for up to three years, its provisions must be followed in day-to-day school and district management.
  2. If disputes arise that cannot be resolved informally, they must be resolved peacefully through:
  • The grievance & arbitration system: A grievance system consists of a number of steps by which an individual employee can, with or without union support, seek a remedy for a violation of a K. If no agreement can be reached, the matter usually is referred to arbitration. Compliance with an agreement to arbitrate is enforceable by court order. So far as arbitrator’s decision concerns construction of the K, the courts have no business overruling him because their interpretation of the K is different from his. There are still limits to what an arbitrator can do – if its decision conflicts with the law or the Educ Code, or if it involves matters not specifically enumerated as bargaining topics. The chances of overturning an arbitration award are slim though.

Organizational Security Arrangements: Critically imp to unions b/c they provide the union with the money needed to be effective. EERA requires that once a union is recognized as the exclusive representative of employees in the bargaining unit, each employee who chooses not to be a dues-paying union member must pay a fair share service fee (or agency or agency-shop fee) – that is not to exceed the dues paid by union members. Gov Code 3546.3 permits religious objectors to either joining the union or paying the fee to opt out but their money must then be routed to a religious or charitable organization.


Challenges to Teachers Unions

  • Internal Tensions
    • Older teachers interested in job security versus new teachers interested in greater professional involvement, merit pay, etc.
    • Dealing with failing schools
    • Dealing with value-added assessment of teachers through linkage with individualized student performance data (LA Times series)
  • Charter Schools
  • Do teachers embrace unions and collective bargaining?
  • What is the status of teachers employed by CMOs/EMOs? (See discussion of private nonprofit benefit corporation on p. 161-162 of CSL and the Hawkins test)


Future Challenges

  • Charter schools operated by a private educational management organization (EMO)
    • Hawkins test: requires the entity is created by the state or is administered by officials who are responsible to public officials or the general electorate.
  • Publicly funded vouchers and tuition tax credit programs






CA Public School Employment Categories

  1. Certificated (A certificated employee is an individual who is required to hold a credential issued by the CA Commission on Teacher Credentialing (CCTC)).
    • Substitute
    • Temporary
    • Probationary
    • Permanent
  2. Classified (Classified employees are all other employees of the school district not specifically exempted by the Educ Code from classified service. Includes those who keep a school running through administrative support, janitorial services, etc. Also includes supervisory management employees who oversee other classified employees (e.g., assistant superintendent of business, director of food services).
    • Probationary
    • Permanent
  3. Administrators are employed either as certificated or classified employees and retain accrued rights in these positions


Lessons about At Will Employment

  1. At-will employment conveys no property right and can be terminated at any time by either party, subject to district/school policies and practice
  2. At-will employees can challenge negative employment decisions as impermissibly motivated
    • Civil rights violations (e.g., discrimination based on race, color, religion, sex, national origin under Title VII; disability under ADA; age under ADEA, sexual orientation and other protected statuses under CFEHA)
    • Retaliation for the exercise of protected rights (e.g., free speech)
  1. Documentation therefore is necessary to establish job-related deficiencies to justify the negative employment decision





  1. A public school employee in a certified position must hold an appropriate credential from CCTC. CCTC can issue two types of credentials: a teaching credential and a service credential.
    • Teaching credentials can be either Multiple Subject Teaching Credentials or Single Subject Teaching Credential
    • Service credentials include Administrative Services, Pupil Personnel Services, Health Services, etc
  1. CCTC may also issue emergency permits for an individual who has not completed all of the requirements for a credential.
    • The employment of teachers with emergency credentials may not be an opinion under No Child Left Behind – NCLB presently requires all teachers who are teaching core academic areas to meet NCLB’s definition of “highly qualified.” An emergency credential does not satisfy this definition.
  2. CCTC issues a permit rather than a certificate to preschool teachers. As an individual working in a position requiring certification qualifications, a preschool teacher receives many of the rights afforded to other certified employees.



  1. At will: Through the nature of their work, substitute teachers are “at-will” employees and do not have an expectation of continued employment. In other words, there is no property right in continued employment with the school district.
  2. A sub working in a certificated position at least 75% of the school year will be deemed to have served a complete school year as a probationary teacher if the employee is employed as a probationary teacher for the next school year. A sub serving in an in-call status to replace absent regular teachers of the district on a day-to-day basis cannot attain probationary status.
  3. Temporary: temporary employees are those persons working in positions requiring certification qualifications, other than substitute employees, who work for a school district on a temporary basis.
  4. At the time of initial employment, a school district must give a temp certified employee a written statement clearly indicating the temp nature of the employment and the duration of the employment. If a written statement does not indicate the temp nature of the employment, the teacher is deemed a probationary employee. The presence or absence of the foregoing written notice is critical b/c an individual working in a probationary certified capacity is accruing time toward permanent status.
  5. A temp teacher may also attain probationary status with retroactive probationary credit for time served as a temporary employee if:
    • The temporary teacher performs the duties normally associated with a teacher for at least 75% of the school year
    • The teacher is employed as a probationary teacher for the following school year.
  6. In this scenario, the teacher receives retroactive credit for the prior year of service as though the employee were serving as a probationary employee.
  7. This means the probationary teacher has one year of probationary service credit toward attaining permanent status.
  8. Educ Code permits the release of a temp employee at the “pleasure of the board” prior to the employee’s completion of at least 75% of a school year. If a temp employee serves more than 75% of a school year, the employee may be released with a written notice of the district’s decision not to reelect the employee for the succeeding school year.
  9. Under Zalac, school districts must immediately decide whether or not to terminate certificated employees hired under a categorical funding program when the program no longer exists. Rehiring the employees for a subsequent year after the applicable categorical funding program expires may result in their attaining probationary or permanent status.
  10. Probationary: prior to attaining permanent classification, a teacher must either serve as a probationary employee or receive retroactive credit for service as a probationary employee. If given an expectation of a certain period of employment. So K conveys property right so if you are terminated prior to that you, you have been deprived of a right.
    • The K is the property right!
    • If given a permanent – you have a lifetime property right
  11. K conveys property right that can’t be taken away without due process of law
  12. Must give notice, reason and hearing even though not a permanent employee
  13. A key feature of probationary status is nonreelection – which permits a school district to notify a probationary teacher in writing that the teacher’s services with the district will not continue into the next school year. Upon receipt of the written notice, the probationary teacher has no recourse.
  14. Under certain circumstances, interns employed by school districts in certificated positions may attain probationary status. The Educ Code recognizes three types of intern programs: pre-internship teaching internships, school district internships, and university internships. While the Educ Code is silent on the employment status of pre-interns, it is unlikely that they are serving in a probationary position.
  15. A school district cannot alter the probationary status of a district intern through a contract identifying the intern as a temp employee.
  16. Permanent: Except for this in very small districts, a full-time teacher must serve two consecutive school years as a probationary employee before becoming a permanent employee. In school districts with less than 250 average daily attendance, a full-time certificated teacher must serve three consecutive years as a probationary employee before becoming a permanent employee.
  17. Under Fleice, a school district cannot grant permanent status to a teacher prior to the teacher’s completion of two consecutive schools years of service as a probationary employee.
  18. Once a probationary teacher completes the requisite number of consecutive school years, the teacher automatically attains permanent status at the commencement of the next school year (Vittal). No action by the school district’s governing board is required. Once elevated to permanent status, a teacher has a vested property right in employment within the scope of the teaching credential when tenure was conferred. Permanent teachers can only be dismissed for grounds specific in the Educ Code and are afforded full DP rights.


Evaluation & Reassignment

  1. Teacher evaluation is to be done on a uniform basis. For “compelling reasons,” however, a governing board may use different evaluation criteria for teachers of certain schools within the district.
  2. Educ Code sets forth the minimum criteria by which a governing board must evaluate and assess teacher performance. These criteria include the instructional techniques and strategies used by the teacher, the teacher’s adherence to curricular objectives, and whether the teacher est. and maintained a suitable learning environment. The performance of the teacher’s students toward the standards of expected student achievement est by the governing board is another component of the evaluation, etc.
  3. A probationary teacher is evaluated at least once every school year. A permanent teacher is evaluated at least once every other year. A permanent teacher receiving an unsatisfactory performance is evaluate annually until the employee receives a positive evaluation or is no longer employed by the district.


Nonreelection and Dismissal of Probationary Teachers

  1. A probationary teacher must receive at least thirty days prior written notice of dismissal. If the teacher is in the second year of employment, the written notice must be received no later than March 15. The notice must include a statement of the reasons for the dismissal and notice of the opportunity for a hearing.


Dismissal of Permanent Teachers

  1. Dismissal of a permanent or probationary teacher may occur under one of the specific causes set for in the Educ Code:
    • Immoral or unprofessional conduct
      • Immoral Conduct
        • The Morrison factors (the inquiry is whether the teacher is fit to teach, considering these factors in the aggregate.)
          • The likelihood that the conduct may have adversely affected students or fellow teachers
          • The degree of such adversity anticipated
          • The proximity or remoteness in time of the conduct
          • The type of teaching certificate held by the party involved
          • The extenuating or aggravating circumstances, if any, surrounding the conduct
          • The likelihood of recurrence of the questioned conduct
          • The extend to which disciplinary action may inflict an adverse impact or chilling effect upon the constitutional rights of teacher involved or other teachers
        • Unprofessional Conduct
          • Written notice to employee charged with unprofessional conduct of specific behaviors needing correction given at least 45 days prior to the filing of dismissal action
    • Dishonesty
    • Unsatisfactory performance
      • Prior written charges of unsatisfactory performance
      • Written notice given to employee of specific behaviors needing correction given at least 90 days prior to the filing of formal dismissal action
    • Evident unfitness for service
      • Not synonymous with unprofessional conduct
      • Connotes a fixed character trait that is generally not be remediable
    • Physical or mental condition unfitting him to instruct or associate with children
    • Persistent violation of or refusal to obey school laws of the state or reasonable regulations prescribed for the gov of the public schools by the State board of Educ or by the governing board of the school district employing him
      • The CA Code of Regulations contains the Rules of Conduct for Professional Educators which prohibits the following conduct:
      • Failure to use professional candor and honesty required in letters and memoranda of employment recommendation
      • Withdrawal from professional employment without good cause
      • Unauthorized private gain or advantage from use of confidential info relating to students or fellow professionals
      • Performance of duties which substantially mentally impaired for an reason, including alcohol or substance abuse. This rule also includes the assignment of such a person to perform duties.
      • Harassment or retaliation against those who report actual or suspected wrongdoing
      • Failure to perform duties for a person b/c of discriminatory motives
    • Easiest to document
    • Could encompass a teacher’s failure to achieve a component in an evaluation or improvement plan
    • Components in an evaluation or improvement plan should be linked wherever possible to student performance:

Teacher Behavior –> Linked to –> Student performance

Teacher monitors students –> so that –> all students are on task

    • Conviction of a felony or of any crime involving moral turpitude
    • Violation of Sec 51530 or conduct specified in Sec 1028 of the Gov Code
    • Alcoholism or other drug abuse which makes the employee unfit to instruct or associate with children
  1. A “Skelly” conference is a prerequisite to the suspension of a certificated employee without pay. The conference is an informal meeting between administration and the employee. The essence of Skelly is that a government employee is to receive written notice and an opportunity to respond prior to the deprivation of a property right. Loss of pay during a suspension constitutes the loss of a property right. A Skelly conference, in which the employee is apprised of the basis for the suspension and is given an opportunity to respond, thus satisfies due process of law prior to the suspension.


Essential Elements of a Letter of Reprimand

  1. Letterhead stationery
  2. Date
  3. Allegation
  4. Findings of fact from investigation
  5. Conclusions based on the facts and anchored in law, policies, or directives
  6. Directive for future behavior (can include remediation activities)
  7. Opportunity to respond
  8. Dated signature


Writing Directives

  1. Ineffective Directive:
    • I recommend (suggest or advise) that you attend the Wednesday, November 18 workshop for teachers on sexual harassment.
  1. Effective Directive:
    • I direct you (I have made arrangements for you) to attend the Wednesday, November 18 workshop for teachers on sexual harassment.




  1. While classified employees do not hold a credential, they enjoy rights that are similar to certificated employees in the areas of permanent status, discipline and dismissal, and layoff.



  1. A classified employee attains permanent status after completion of a prescribed period of probation not to exceed one year. Prior to attaining permanent status, a classified employee is considered probationary unless the employee is serving in a short-term or substitute capacity. A short-term employee is any person who is employed to perform a service for the district, upon the completion of which, the service required or similar service will not be extended or needed on a continuing basis.
  2. A short-term employee is not part of the classified service of the school district
  3. Although the ending date of the short-term classified employee’s service may be shortened or extended by the governing board, the ending date cannot exceed 75% of the school year


Evaluation & Discipline:

  1. A governing board must prescribe written rules and regulations, governing the personnel management of the classified service
  2. A governing board must also adopt procedures governing the suspension of classified employees, including informing the employee of the specific charges being brought and the employee’s right to request a hearing
  3. A Skelly conference is required prior to placing an employee on an unpaid suspension


Dismissal and Layoff

  1. Dismissal of a permanent classified employee may occur only for cause pursuant to rule or regulation prescribed by the governing board.
  2. The layoff of classified employees is permissible for lack of work or lack of funds. A layoff of classified employees is initiated by resolution of the governing board. Classified employees are generally to receive written notice of a layoff 30 days in advance.



  1. Administrator does not have the right to a due process hearing prior to dismissal, release, or reassignment to a non-administrative position. However, an administrator may acquire permanent status to a previously held certificated or classified position.
  2. An administrative employee may have permanent status in a previously held certificated or classified position. Thus, even if the employee is released from an administrative position, the employee may return to the position in which permanent status was obtained.

CA School Administrator Employment

  1. Administrators in traditional public, charter, and private schools generally are employed at will
  2. Notice of release of traditional public school administrators for following year must be conveyed by March 15 (CEC § 44951)
  3. If school employers convey rights to job security via written contracts, policies, or procedures, those obligations must be followed



  1. Unless a collective bargaining agreement specifies otherwise, certificated and classified employees are generally limited to seven days per school year of personal necessity leave.
  2. A catastrophic leave program: district employees may donate accrued sick and vacation leave to another employee for use when the employee or a member of the employee’s family experiences a catastrophic illness or injury.
  3. After exhausting all paid leave, certificated and classified employees become eligible for differential pay. For a period not to exceed five months, certificated and classified employees on an extended leave receive their salary minus the salary paid to their substitute replacement.
  4. Certificated and classified employees exhausting all paid leave, including differential pay, who remain unable to return to work are placed on a reemployment list. While on the reemployment list, the employee can return to a position for which the employee is qualified.




Title VII

  1. Title VII applies to state and local government entities, which include the entire range of public school employers. Title VII prohibits employment practices or discrimination based on race, color, religion, sex, or national origin.
  2. For ex: if a school principal alleges that he was terminated based on race, he must prove the following to maintain a Title VII disparate treatment lawsuit:
    • He was a member of a protected class
    • He was qualified for his position
    • He was discharged
    • He was replaced by a person outside of the protected class
  3. If the principal can demonstrate each of these factors by a preponderance of the evidence, there is an inference of discrimination the employer school district must rebut by demonstrating that there was a legitimate, nondiscriminatory reason for adverse employment action.


Americans with Disabilities Act & Section 504

  1. Federal laws prohibiting discrimination on the basis of disability
  2. ADA applies to public and private employers, while Section 504 applies only to recipients of federal funding.
  3. As public employers in receipt of federal funding, all public school employers are subject to ADA and Section 504.
  4. ADA’s protection extend to a qualified individual with a disability. ADA defines a disability as
    • A physical or mental impairment that substantially limits one or more major life activities
    • A record of such an impairment
    • Being regarded as having such an impairment
  5. The ADA requires an employer to make reasonable accommodations for qualified individuals with a disability


Fair Employment and Housing Act

  1. FEHA is a CA law governing employment discrimination & applies to private and public employees.
  2. FEHA’s antidiscrimination provisions are broader than those in Title VII or ADA, FEHA prohibits discrimination on the basis of race, religion, color, national origin, ancestry, physical or mental disability, medical condition, sex, age, pregnancy, or sexual orientation. Title VII does not extend to physical or mental disability, mental condition, age, or sexual orientation.
  3. FEHA also differs from federal law (ADA) on the definition of disability. Recall that ADA requires a mental or physical impairment to substantially limit one or more major life activities. FEHA, however, merely requires a physical or mental impairment to limit a major life activity.
  4. FEHA also prohibits two types of sexual harassment applicable to the workplace. The first is quid pro quo sexual harassment in which a person in a position of authority conditions tangible benefits (e.g., a favorable job review, increase in salary, promotion, etc) on sexual favors. The second is a hostile workplace environment.
  5. A hostile work environment exists where the employee can demonstrate
    • That he was subjected to sexual advances, request for sexual favors, or other verbal or physical conduct of a sexual nature
    • That his conduct was unwelcome
    • That the conduct was sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment





A Brief History

  1. Mills: court ordered the board of educ to provide each child of school age a free and suitable publicly supported education regardless of the degree of the child’s mental, physical, or emotional disability impairment. The order forbid the practice of exclusion from public school without a hearing and set the board or education to the task of notifying thousands of parents that their children, regardless of their disability, were entitled to a public education
  2. Education for All Handicapped Children (EHCA) was passed in 1975: made federal money available to states in return for a promise to abide by EHCA’s requirements.
  3. EHCA guaranteed eligible students a free appropriate education (FAPE), comprised of special ed and related services. The requirement of IEP team meetings for making decisions regarding a child’s sped was codified into law.
  4. Despite authorizing federal funding up to 40%, Congress has never been able to appropriate more than 20%. The funding shortfall is absorbed by states and local school districts.
  5. Has given away to IDEA.


Sources of SPED Law

  1. Divide the sources of sped law into three categories: statutory, administrative, and judicial law. At the federal level, IDEA is the vehicle through which Congress seeks to open the door of public ed to handicapped children.
  2. The Office of Special Education Programs (OSEP) provides administrative guidance on how to interpret IDEA.
  3. At the state level, CA Educ Code Sec 56000 & following provisions contain parallel provisions to IDEA.
  4. The Office of Administrative Hearings (OAH) conducts administrative hearings applying these state and federal laws to disputes between parents and school districts.
  5. OAH decisions are considered non-binding, persuasive authority by OAH administrative law judges in future hearings.
  6. IDEA applies to each state that receives federal funding under the statute.
  7. Charter schools that are deemed a local education agency (LEA) are also responsible for complying with IDEA.



  1. The Individuals with Disabilities Education Act sets forth two basic requirements for school districts to follow to ensure that children with disabilities receive FAPE
    • Procedural requirements
    • Substantive requirements
  2. Procedural requirements consist of
    • Timelines
    • Content of documents
    • Who does what
    • Informing parents of their rights
    • The process by which school districts develop a program offer
  3. Substantive requirements consist of
    • Designing a program to meet the unique needs of the child
    • Making a program available that is reasonably calculated to provide meaningful education benefit (very fact driven when in dp)
    • Ensuring that the program is in the least restrictive environment (LRE)
      • Requires school districts to educate sped students with gen ed students to the max amount appropriate. More restrictive environment than that must be absolutely necessary
  4. Procedures + Substance = FAPE



  1. Procedural and…
  2. Substantive Component: based on Rowley, OAH requires that a school district’s sped program satisfy four elements to constitute FAPE. The school program must be:
    • Be designed to meet the student’s unique educational needs
    • Be reasonably calculated to provide the student with some educ benefit
    • Be in the least restrictive environment (LRE)



  1. A student cannot receive FAPE unless the student is in the LRE. IDEA’s LRE requirement has two related aspects.
    • First, school districts must ensure that to the max extent appropriate, children with disabilities are educated with children who are not disabled.
    • Second, the removal of children with disabilities from the regular ed environment occurs only when the nature or severity of the disability of a child is such that ed in regular classes with the use of supplementary aides and services cannot be achieved satisfactorily.
  2. Holland ct created a four factor balancing test to determine if a full-time placement in a general ed classroom would be appropriate:
    • Educational benefits of placement in full-time regular class
    • The nonacademic benefits of such a placement
    • The effect the student has on the teacher and the other children in the regular class
    • The costs of mainstreaming student.
  3. The appropriate inquiry, as OAH states, is whether or not the student can receive a satisfactory ed in a general ed classroom with the use of supplementary aides and services.




Child Find and Referral for Initial Assessment

  1. A district’s child find obligation toward a specific child is triggered when there is reason to suspect a disability and reason to suspect that sped services may be needed to address that disability.
    • Two things that need to occur for a child to be eligible for IDEA:
      • Must satisfy one or more of the disability categories
      • Child must by reason therefore need sped and related services (so if autistic kid has 4.0, not going to get sped services)
  2. The threshold for suspecting that a child has a disability is relatively low (just have to suspect that maybe the child might have a need). Good way to cover their butts
  3. A district’s appropriate inquiry is whether the child should be referred for an evaluation, not whether the child actually qualified for services
  4. Under IDEA’s child find provision, school districts are under an affirmative obligation to identify, locate, and assess all children residing within the district’s geographical boundaries who may need sped and related services.
  5. A school district’s child find obligations are not relieved if a parent does not request a sped eval for the child. The duty to identify, locate, and assess also extends to children who are not attending public school.
  6. Student study team (SST) goal is to address academic difficulties through the use of gen ed modifications and accommodations
  7. How does the student study team process (SST) process interact with a school district’s child find obligations?
    • A student shall be referred for sped instruction and services only after resources of regular ed have been considered and, where appropriate, utilized
    • Trouble shooting process, separate from the assessment. Must do assessment if they think the child is eligible for services
  8. The SST process should only be used with those students for whom there is not a reason to suspect a disability and not a reason to suspect that sped services may be needed
    • The SST process does not take the place of developing an assessment plan
  9. How do we respond to a parent request for assessment to determine eligibility under IDEA?
    • We develop an assessment plan b/c all referral for sped and related services shall imitative that assessment process. So if parent asks for it, schools have to do the assessment
  10. Other factors to consider:
    • Attendance – we need to determine WHY the student is not attending school to make an informed decision as to whether evaluation is, or is not, warranted.
    • Private diagnosis – we only need to SUSPECT that their might be issues
    • Discipline – consider if the discipline is a result of behavior that may be disability-related
  11. Eligibility – if a student is not a child with a disability under the IDEA, the child may be eligible for protections of Sec 504 if the child has a mental or physical impairment which substantially limits one or more major life activities


What does the law require?

  1. Assessment in all areas of suspected disability
  2. Present levels of performance
  3. Measurable annual goals
  4. Least restrictive environment
  5. Related services


What does the law require if you make a procedural mistake of FAPE? A procedural violation will result in a denial of a FAPE if the violation impedes the student’s right to a FAPE, significantly impedes the parents’ opportunity to participate in the decision making process regarding the provision of a FAPE to the student, or causes a deprivation of ed benefits.

  1. So don’t do assessment for Speech and then when they finally do it, it comes back normal, no denial of FAPE
  2. Assessment procedures
    • Assessment in all areas of suspected disability
    • Technically correct assessment
    • Accurate assessment results
    • Accurate reporting of assessment results
    • Timely assessment
  3. Most common assessment error
    • Failure to assess in all areas of suspected disability
    • Is there any area in which we either did suspect, or should have suspected, a disability and failed to evaluate


  1. Initial Assessment
  2. School district are prohibited from using intelligence tests with black students, regardless of parental consent (Larry v Riles)
  3. An IEP meeting to discuss student’s eligibility under IDEA must be held within 60 days after the school’s receipt of parent’s written consent to the assessment plan. School breaks in excess of five days are not calculated as part of the sixty-day period.
  4. IEE and Reevaluation
  5. Sped students must be reevaluated at least once every three years.


Board of Education v. Rowley

1. The Act’s requirement of a “free appropriate public education” is satisfied when the State provides personalized instruction with sufficient support services to permit the handicapped child to benefit educationally from that instruction. Such instruction and services must be provided at public expense, must meet the State’s educational standards, must approximate grade levels used in the State’s regular education, and must comport with the child’s IEP, as formulated in accordance with the Act’s requirements. If the child is being educated in regular classrooms, as here, the IEP should be reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.

2. In suits brought under the Act’s judicial review provisions, a court must first determine whether the State has complied with the statutory procedures, and must then determine whether the individualized program developed through such procedures is reasonably calculated to enable the child to receive educational benefits. If these requirements are met, the State has complied with the obligations imposed by Congress, and the courts can require no more.

3. Entrusting a child’s education to state and local agencies does not leave the child without protection. As demonstrated by this case, parents and guardians will not lack and/or in seeking to ensure that handicapped children receive all of the benefits to which they are entitled by the Act.




IEP Team Meetings: IEP team meetings must be held at least once annually to review a special ed student’s ed program, when the student demonstrates a lack of anticipated progress, when the parent requests an IEP meeting, and for purposes of discussing school district assessments.


SPED and DIS: SC has been clear that once the requirements of IDEA have been met, questions of methodology are for resolution by the States (the school) (Board of Educ v Rowley) as well as the personnel the school can choose to implement the program (Gellerman).


Extended School Year (ESY): ESY services are available beyond the regular school year to prevent certain special ed students from regressing beyond a point where they cannot obtain the level of self-sufficiency and independence (educ progress) they would otherwise be expected to obtain.


Behavior-related assessments and plans: Schools must consider strategies, including positive behavioral interventions and supports, in circumstances in which a student’s behavior impedes his learning or that of others.


Mental Health Services: Mental health services and residential placement are the responsibility of the local branch of the State Department of Mental Health (CMH). A referral to CMH to evaluate the necessity of mental health services is termed an AB2726 referral.


Placement: A nonpublic school (NPS) is a private school that has been certified by the CA Dept of Educ to contract directly with school districts.


Preventing/Resolving Disputes

  1. Factors contributing to disputes include:
    • Unrealistic parent expectations and/or understanding of the child’s disability
    • Take it or leave it school district attitude
    • Lack of understanding regarding the school district’s obligations
    • Poor local school site relations
    • Unwarranted escalation of the dispute


  1. Options to prevent/resolve disputes include:
    • Schedule an IEP team meeting to discuss concerns
    • Request an informal meeting with the school district
    • Utilize alternative dispute resolution or mediation-only


  1. Types of Hearing Requests
    • Parent initiated
      • Expedited/discipline related
    • District initiated
      • Right to assess/refer
      • Unsigned IEP/partial consent
      • Independent Ed Evaluations
      • Expedited/Discipline related
  2. A parent may request a dp hearing regarding any of the following:
    • A proposal to initiative or charge the identification, assessment, or educational placement of child
    • What remedies can parent request?
      • Reimbursement for privately funded ed expenses/assessments
        • Did District make FAPE available?
          • If so, District ok
          • If parent can show just some remote benefit if District denied FAPE, District will probably have to reimburse
      • District funding for a specific placement and/or related service
      • Comp ed services
      • Any other change to the IEP
  3. Two year SOL doesn’t apply if
    • Specific misrepresentation by the school that it had solved the problem forming the basis of the hearing request
    • The withholding of info by the school from the parent that was required under this part to be provided to the parent



  1. There is also emphasis on preparing the student for independent living and life after sped service under IDEA cease. To this end, transition plans are created for students.
  2. Educ Code Sec 56345.1 details the requirements: at 16, or younger if determined appropriate by the IEP team, a student’s IEP must contain a plan detailing the transition services the student is to receive.
  3. There are three circumstances in which a sped student is no longer eligible for services under IDEA.
    • First, sped student may no longer meet one of the 13 eligibility categories or need sped and DIS. Otherwise, it turns on the either age or receipt of an HS diploma.
    • A SPED student receiving an HS diploma is no longer eligible for services under IDEA. However, a student receiving a certificate of completion remains eligible for services under IDEA.
    • Sped students may continue to receive services until they are 22. A school district does not have to evaluate a sped student before terminating services if the student receive the diploma or 22.



  1. Before going to hearing, the parties are encouraged to resolve their dispute through mediation. Also have resolution sessions – a school is required to respond to a dp hearing within 15 days by convening a meeting with the parents and relevant members of the IEP team.
  2. Stay Put during Hearing – from the date a dp hearing is requested to the time a written decision is issued, a student must generally remain in the student’s last agreed-upon and implemented educ placement, unless the school and parent agree otherwise.
  3. DP Rights – ten days before the hearing, the parties are required to inform each other of the issues and their proposed resolutions. The party seeking relief in a dp hearing bears the burden of persuasion

DP Remedies

  1. Comp ed
  2. Reimbursement for education expenses

Attorneys fees: Parents who prevail in a dp hearing may recover their attorneys’ fees. IDEA contains a fee-shifting provision to encourage attorneys to represent the class of individuals protected by the law: children with disabilities. It’s based on how much the prevailing parent wins on the issues (win on 50% of issues, get 50% of fees covered). School can recoup a reasonable amount unless parent acts unfairly after school tries to settle.




Section 504

  1. An antidiscrimination law that applies to all recipients of federal funding, such as CA public schools. Covered entities are prohibited from discriminating against an individual on the basis of a disability. A school may also be required to provide educ services to students who qualify under Section 504.
  2. An individual with a disability is any person who
    • Has a physical or mental impairment which substantially limits one or more major life activities
    • Has a record of such an impairment
    • Is regarded as having such an impairment
  3. Only students in the first category have a right to educ services. The latter two categories are aimed at preventing discrimination on the basis of the disability.
  4. The first category for eligibility has three requirements. A student must have:
    • A physical impairment
    • That substantially limits
    • One or more major life activities.
  5. ADA Amendment Act of 2008 says that determination of whether an impairment substantially limits a mjor life activity is to be made without reference to the effects of mitigating measures (glasses, medication)



  1. Title II prohibits public entities from discriminating on the basis of a disability.



Who Can Discipline? Only the governing board can order an expulsion

  1. Due Process of Law: Goss v Lopez:suspension without a hearing is unconst. Through the compulsory schooling law, public education is a state-created property right under the 14th Amend, invoking the necessity of DP of law prior to deprivation
    • The Court held that Ohio was constrained to recognize students’ entitlements to education as property interests protected by the Due Process Clause that could not be taken away without minimum procedures required by the Clause. The Court found that students facing suspension should at a minimum be given notice and afforded some kind of hearing.
      • How much due process is necessary depends on the length and terms of the suspension



  1. School discipline can be divided into three categories: discipline short of suspension, suspension, and expulsion
  2. Discipline Short of Suspension: Removal from a particular class cannot occur more than once every five school days
  3. Suspension
  4. The general rule is that a suspension must be imposed only when other means of correction fail to bring about proper conduct. A suspension for a first-time offensive is typically not an option. However, certain acts (such as causing serious bodily injury to another person, possession of any knife or other dangerous object, etc) permit, and may require, suspension regardless of whether other means of correction may bring about proper conduct.
  5. Have to have some sort of conference with parents, student, school officials prior to suspension
  6. Students may not learn the names of their accusers in sexual harassment cases.
  7. A student cannot be suspended for more than twenty school days in one school year. The two exceptions to the limit pertain to a student who transfers to another school or has his suspension extended. The school may extend the suspension of a student committing an act resulting in a recommendation for expulsion while the expulsion is being processed.
  8. Expulsion
  9. Possessing, selling a firearm, brandishing a knife, committing or attempting to commit sexual assault, unlawfully selling a controlled substance, possession of an explosive – require suspension
  10. Mandatory recommendation for expulsion: A school district may enforce a zero tolerance policy mandating an immediate suspension and recommendation for expulsion for a student who committed an act other than those described above.

Discipline for an act not on school grounds

  1. A student may be suspended or expelled for an act that does not occur on school grounds. A student may be disciplined for an act relating to a school activity or attendance that occurs while on school grounds; while going to or coming from school; during lunch period, whether on or off campus, and during, or while going to or coming from, a school sponsored even.

Involuntary Transfer

  1. Educ Code permits the involuntary transfer of a student to a continuation school. The governing board of each HS must adopt rules and regulations for such a transfer and it must be based on a finding that the student committed an act in Educ Code or has been habitually truant or irregular in attendance at school



  1. The first component requires a determination by a principal or superintendent that a student has committed an act warranting expulsion. Next is the expulsion hearing. The third component occurs when the governing board considers the recommendation from the hearing (to expel or not)



  1. Short term removals: may be disciplined in the same manner as general educ students
  2. Long term removals: entitled to receive education services through a FAPE.
  3. If a dispute arises regarding a long-term removal, a parent may request a DP hearing. Stay put generally requires the school district to maintain the student in the student’s last agreed upon and implemented placement until completion of the hearing or the parties agree otherwise. A significant change brought about by IDEA 2004, however, provides that a student’s stay put placement during a DP hearing concerning discipline is the disciplinary placement chosen by the school district. The basic premise is that a student should not be disciplined if the student’s behavior is a result of the student’s disability. IDEA 2004 provides that a sped student’s conduct is a manifestation of the student’s disability if:
    • The conduct in question was caused by, or had a direct and substantial relationship to, the child’s disability, or
    • The conduct in question was the direct result of the local education agency’s failure to implement the IEP


Due Process & Student Discipline

  1. Normal academic setting has its own due process- kind of already put on alert of your behavior/grade. Like, you’re failing English, so teacher works with you, but you still fail. You knew ahead of time that you were failing, already had the chance to improve, and didn’t. Already given DP and so it’s just an academic decision unless its arbitrary or capricious. Academics provide their own remedies so courts just stay out of it
  2. Suspension/Expulsion

Infraction –> Due Process –> Discipline Goss v. Lopez

  1. Corporal Punishment

Infraction –> Discipline –> Due Process (State civil and criminal law remedies)

Ingraham v. Wright

Note: Ingraham v Wright does not apply in California insofar as corporal punishment is concerned.

See CEC §§ 49000-49001


  1. Due Process and Academic Disputes
  2. Procedural Due Process
    • Academic disputes are not readily adaptable to judicial or administrative decision-making

— Board of Curators v. Horowitz

  1. Substantive Due Process
    • Federal judges may not overturn academic decisions unless such a substantial departure from academic norms as to show decision-makers did not exercise professional judgment

— Regents of the University of Michigan v. Ewing



  1. Students may be subject to expulsion for assault or battery, as defined in Sections 240 and 242 of the Penal Code, upon any school employee.
  2. Students will be subject to discipline for use of profanity/obscene gestures toward other students.


Student Classroom Suspension by Teacher Under CEC 48910

  1. Reasons: any reason in CEC 48900
  2. Duration: day of suspension and following day
  3. Hearing: conference with student and parent and with principal if parent requests
  4. Limitation: extends only to teacher’s class

*Note: teacher can refer student to principal for suspension from school. Also, teacher can require parents to attend teachers class for a certain amount of time

  1. In CA, suspension is a last resort
    • Suspend them or expel them from school, they’re not learning and so society ends up suffering
    • End up getting involved in crime – where the social costs are even higher
    • Also, testing will be low in comparison to other schools
  1. Education is a fundamental liberty right!


Student Suspension from School by Principal Under CEC 48911

  1. Reasons: Any reason in CEC § 48900
  2. Duration: Maximum of five consecutive school days and generally no more than 20 in one year
  3. Hearing: Informal conference with student and with accusers if practicable. Parents subsequently informed and given right to follow-up conference.
  4. Reporting: Reports to teachers, other school officials, and to law enforcement for certain offenses

Note: Suspension is generally a last resort. CEC § 48900.5


Student Expulsion by Governing Board Under CEC 48915

  1. Reasons: Principal or sup’t determines if student has committed expellable offense
  2. Duration: Generally one academic year
  3. Hearing: Formal notice, then hearing (informal trial) – all with time limits
  4. Rehab: Rehabilitation plan required at time of expulsion
  5. Reporting: Reports to teachers, other school officials, and to law enforcement for certain offenses

Note: Mandatory expulsion for the “Big Five” offenses unless inappropriate. (CEC § 48915)


Alternatives to Student Suspension/Expulsion

  1. Suspension
    • Counseling and anger management at discretion of supt or principal (CEC § 48900(v))
    • Community service at discretion of school officials or governing board (CEC § 48900.6)
    • Supervised suspension classroom (CEC § 48911.1)
  1. Expulsion
    • Counseling and anger management at discretion of supt or principal (CEC § 48900(v))
    • Community service at discretion of school officials or governing board (CEC § 48900.6)
    • May be permitted to enroll in county school, juvenile court school, community day school (CEC §§ 48915.2, 48926) [Note: rehabilitation plan is required under CEC § 48916(b) and education program must be provided to expelled students under CEC § 48916.1]
    • Governing board may suspend expulsion order and assign student to a school, class, or program for rehabilitation. Student remains on probation. (CEC § 48917)


Reporting Child Abuse/Neglect

  1. Who is required to report
    • Public and private school teachers
    • Teacher aides
    • Administrators
    • Classified staff
    • Others delineated in law
  1. To whom report is made
    • Law enforcement or
    • County welfare department
  2. How to report
    • Initial telephone call as soon as know/suspect abuse or neglect
    • Follow-up written report within 36 hours
  3. Penalty for not reporting
    • Six months in county jail and/or
    • Fine up to $1,000



Dress Code in CA

  1. CEC permits schools to institute school-wide dress code including the wearing of a uniform
  2. A dress code requiring the wearing of a uniform does not violate student free speech rights as set forth in the CEC
  3. Parents who object are entitled to opt out



The Brown Open Meetings Act

  1. Public commissions, boards, and councils and other public agencies in this state exist to aid in the conduct of people’s business. The Brown Act applies to the governing boards of traditional public schools and charter schools
  2. Open board meetings are limited public forums, meaning that they are open to public comment on matters within the subject matter of the J of the governing board. AS such, the district’s interests in controlling public commentary cannot outweigh the public’s fundamental right to engage in robust public discourse on school issues
  3. The privacy rights of district employees cannot trump the First Amendment rights of members of the public.
  4. Key provisions:
    • Gov Code provides that if a meeting is willfully interrupted and order cannot be restored by removing disruptive persons, the members of the governing board may order the room cleared and continue in session
    • The media must be allowed to attend, except for those who are involved in the disturbance
    • Educ Code provides that meetings of school site council’s and advisory committees must be open to the public and members of the public given a chance to address agenda items
  5. Defining open meetings:
    • The term “open meetings” as used in the Brown Act applies both to gatherings at which action is taken and to meetings where deliberation takes place
  6. Exceptions to open meetings:
    • Exceptions: real property transactions discussed with the governing board’s negotiators, provided the property being discussed and the persons with whom the negotiators will deal have been announced in open session. Also includes conferring with legal counsel in closed session on existing or anticipated litigation
    • Following the closed session, the board must reconvene in public session to disclose the actions taken in closed session and the votes of each member present
  7. Enforcement:
    • The statute provides that every governing board member who attends a meeting where action is taken in violation of the Brown Act and intentionally deprives the public of info to which they are entitled is guilty of a misdemeanor. The Brown Act also provides for civil actions against the governmental entity

The Public Records Act

  1. The CA Public Records Act (PRA) provides that any public record in the possession of a governmental body must be disclosed upon request unless specifically exempt.
  2. Public record means any writing containing info relating to the conduct of the public’s business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics



  1. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. A minor cannot be required to secure permission from her parents or guardian before seeking an abortion, even if there is resort to a court if the parent refuses.

Employee & student Lifestyle

  1. Morrison: a teacher’s claim to privacy must yield in the face of a compelling state interest
  2. Several state statutes support the right of privacy and lifestyle behavior. Educ Code gives teachers the right to refuse to participate in surveys that address personal values, sexual orientation, political views, religious beliefs, and family life.
  3. Students also have lifestyle rights
  4. CA Student Civil Liberties Action – it is the policy of CA to afford all persons in public schools, regardless of their disability, gender, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that is contained in the definition of hate crimes set forth in the Penal Code, equal rights and opportunities in the educational institutions of the state. The statute applies to private schools as well, except those controlled by religious organizations whose tenets are in conflict with its terms.
  5. Safe Place to Learn Act – requires the CE Dept of Educ to assure that schools have adopted antidiscrimination and harassment policies and disseminated them broadly.

Student Records & Surveys

  1. Student records: The Family Educ Rights and Privacy Act (FERPA) is a fed law that applies to any educational institution receiving federal funding. Basically, the law gives parents access to, and the right to challenge, the content of their children’s school records.
  2. The sole remedy for FERPA violations involves administrative sanctions imposed by the US Dept of Educ. In rare instances, these sanctions could include loss of fed funding. Additionally, an employee who violates the act could be subject to discipline
  3. Student Surveys: FERPA gives parents the right to inspect instructional material and request exemptions from material they found objectionable for their children.
  4. Protection of Pupil Rights Amendment (PPRA) – the term “applicable program” means a program administered or funded by the US Dept of Educ and its secretary. PPRA does not apply to school curriculum and instructional material



Personally identifiable information

    • Student place and date of birth now in this category
    • Parents and students 18 or over (16 or over and completed 10th grade under California law) have a right to inspect their student’s education records, add amendments to records, consent to disclosure, file complaint with USDOE
    • Both written and electronic records are covered by FERPA
    • Notes about students kept in sole possession of school personnel for their own use are not included
    • Parents/students have no right to see the records of other students

Directory information

    • Student name, weight and height, photograph, etc., can be disclosed without permission if parents have so consented at the start of school year
      • See pp. 14-15 of CSL Update for other recent changes in FERPA regulations



  1. Under 4th Amend – need probable cause AND a warrant for search and seizure, but have exceptions for like hot pursuit and stuff like that
  2. CA Const against unreasonable searches & seizures – very similar to 4th Amend
    • Article I, Sec. 13: The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized.

Note the extensive interpretation of this provision by the California Supreme Court in In re William G. (the 1985 bulging calculator case)

Student Searches

  1. New Jersey v TLO: two standards for a search of a public school student to conform to the 4th Amend. TLO Tests
    • Reasonable Cause
      • Clearly articulated reasons to conduct the search
      • More than a hunch (note In re William G., Cal. Sup. Ct. 1985)
    • Not Excessively Intrusive
      • Consider age and gender of the student
      • Consider nature of the infraction
  2. Supplementing the TLO Test

U.S. Supreme Court ruled in Sanford Unified School District v. Redding (2009) that underwear searches are not excessively intrusive if there is evidence to support:

    • Reasonable suspicion of danger


    • Resort to underwear for hiding evidence of wrongdoing


  1. CA Sup Ct rule in re. William G that his search violated the student’s rights. The search was not based on articulated facts but rather on a hunch. And there was no evidence of exigent circumstances requiring an immediate nonconsensual search.
  2. The CA constitution is more protective of student right to be free from searches and seizures than is the fed constitution, even when the searches are of school property assigned to students.
  3. Group searches of public school students are permitted when there is reasonable suspicion that someone in the group possesses contraband. The search must not be excessively intrusive in light of the circumstances.
  4. When students refuse to comply with the request for a search or when a particularly invasive search is necessary, the best policy is to contact law enforcement and let them handle the search.
  5. Any contraband they find usually will be admissible for a juvenile or criminal prosecution and also can be used in the school’s administrative discipline procedures.
  6. General administrative searches using magnetometers and metal detectors are permitted when there is a need to conduct them.
  7. The use of sniffer dogs to detect drugs on school property also is permitted as long as the dogs are not used to sniff students.
  8. How much justification would be necessary to allow dogs to sniff students in a general manner is not known. In part, the answer will depend on the degree to which the dogs intrude on the student’s zone of personal privacy.


Vernonia School District v. Acton: upheld the constitutionality of random drug testing regimen.

General Drug Searches:

    • Document a history of a drug problem
    • Limit drug testing to student athletes (Note expansion of general searches to student involved in extracurricular activities in Board of Ed v Earls (US SC)
    • Protect student privacy when securing sample
    • Maintain chain of custody
    • Limit penalties

Majority Opinion: The Fourth Amendment only protects against intrusions upon legitimate expectations of privacy. Central to the Court’s analysis in this case was the fact that the “subjects of the policy are (1) children, who (2) have been committed to the temporary custody of the State as schoolmaster.” The schools act in loco parentis to the children, and have “such a portion of the power of the parent committed to his charge… as may be necessary to answer the purposes for which he was employed.” Therefore, in the public school context, the reasonableness inquiry “cannot disregard the schools’ custodial and tutelary responsibility for children.” Public schools require students to undergo vaccinations, vision, hearing, and dermatological screenings, and other examinations. Thus, public school students have a lesser expectation of privacy than members of the general public.

  1. Among public school students, athletes have even less of an expectation of privacy.
    • It is a privilege, not a right like education


Student Seizures: Because a seizure is less intrusive than a search, the same reasonable suspicion standard does not apply. Detentions of minor students on school grounds do not offend the Constitution – so long as they are not arbitrary, capricious, or for the purposes of harassment.


Strip Searches Banned in CA

  1. No school employee may conduct body cavity searches manually or with an instrument
  2. No school employees may remove or rearrange clothing of a student to permit visual inspection of underclothing, breast, butt, or genitalia




Fourteenth Amendment Equal Protection Clause

  1. Most laws classify among groups
  2. When claims of discrimination arise, the federal judiciary normally exercises relaxed scrutiny
  3. To survive relaxed scrutiny, government must establish a rational reason for the differential treatment


Racial Discrimination under Federal Law

  1. Separation of children by race, even into buildings of equal quality, deprives minority children of equal educational opportunities
  2. Civil Rights Act Title VI prohibits discrimination on the basis of race, color, or national origin by recipients of federal funds, and Title VII prohibits discrimination by public and private employers on the basis of race, color, national origin, religion and sex.
  3. De facto segregated school districts are beyond the reach of the equal protection clause (segregated just b/c of the demographics of the area)
  4. Pasadena City Bd of educ v Spangler – normal patterns of human migration was not a product of purposeful actions by the school administrators and therefore was not a violation of the 14th Amend equal protection clause, even though the changing demographics exacerbated racial isolation in the schools
  5. Judicial supervision is only a temporary remedy, with the ultimate goal being to return a desegregated school district to autonomous control
  6. Grutter – upheld the use of race as one factor in a public law school’s admission policy
  7. BUT – admitting or rejecting public school students based solely on their race is unconstitutional (at lower educ level and solely b/c of race)
  8. Racial isolation in education is increasing for a variety of reasons including demographic changes, housing patterns, the termination of desegregation court orders, and less interest in racial integration.


Race-Related Provisions of CA Educ Code

  1. Districts must have an intra-district open enrollment policy but may refuse transfers among schools to maintain racial or ethnic balance
  2. Same for voluntary inter-district enrollment
  3. Charter school petition must spell out means to achieve a racial and ethnic balance reflect of general population of the second strict granting the charter


Major Developments in CA Desegregation Law


Year Development Content Significance
1963 Jackson v Pasadena City School District CA SC supports efforts to alleviate racial imbalance in public schools regardless of cause Unclear to what extent school officials must take action to alleviate racial imbalance
1972 Prop 21 amends the Educ Code Denies school officials the power to assign students to schools on the basis of race or ethnicity Limited ability of schools officials to comply with Jackson
1975 Santa Barbara School v Sup Ct CA SC holds the portion of Prop 21 preventing use of student assignment based on race unconst Restores the use of racial classifications for student assignment
1976 Crawford v Bd of Educ CA SC affirms Jackson that equal protection clause of CA Const requires school districts to undertake reasonably feasible steps to alleviate racial segregation regardless of cause Ct suggests but does not dictate the means by which integration is to be accomplished. Places primary responsibility on school administrators and directs judges to become involved only as a last resort
1979 Prop 1 amends Sec 7(a) of Article I of CA Const Limits state cts from requiring busing or student assignment to bring about integration unless necessary to comply w/ fed law Limits use of two significant tools for integrating school districts
1982 McKinney v Oxnard Union HS Dist CA SC rules that Prop 1 does not curtail voluntary use of busing and student assignment by school districts Clarifies that school districts can continue to use busing and student assignment if they choose to do so. However, federal cts disapprove their use unless necessary to comply w/ a ct order
1996 Prop 209 adds Sec 31 to Article I of CA Const Prevents gov entities from discriminating or granting preferences on the basis of race Ends affirmative action measures unless required to comply w/ a ct order


  1. Both fed law and Sec 31 prohibit school officials from voluntarily using racial classifications for benign purposes such as assuring a diversified student body. It is thus not possible for a charter school to set aside a certain percentage of its student enrollment for students of various races.


  1. Race-Related Provisions of California Education Code
  2. Section 35160.5 (b): Districts must have an intra-district open enrollment policy but may refuse transfers among schools to maintain racial or ethnic balance
  3. Section 48301 (b): Same for voluntary inter-district enrollment policy
  4. Section 48355: Same for interdistrict choice for students enrolled in low-performing schools under newly enacted Open Enrollment Act
  5. Section 47605 (b): Charter school petition must spell out means to achieve a racial and ethnic balance reflect of general population of the school district granting the charter


Brown v Board of Educ

  1. Racially segregated public schools are inherently unequal and as a result violate the Equal Protection Clause of the 14th Amend
  2. Racial segregation in public education has a detrimental effect on minority children because it is interpreted as a sign of inferiority. Separate but equal is inherently unequal in the context of public education.
  3. Racial Discrimination under the Fourteenth Amendment After Brown
  4. Race is a suspect classification
  5. Suspect classifications require strict judicial scrutiny
  6. To survive strict scrutiny, government must establish a compelling purpose that is narrowly tailored to achieve that purpose


Chief Justice Warren Burger’s Comment in Swann v. Charlotte-Mecklenburg School District

School authorities are traditionally charged with broad power to formulate and implement educational policy and might well conclude, for example, that in order to prepare students to live in a pluralistic society each school should have a prescribed ratio of Negro to white students reflecting the proportion for the district as a whole. To do this as an educational policy is within the broad discretionary powers of school authorities; absent a finding of a constitutional violation, however, that would not be within the authority of a federal court.”


Miliken v Bradley

  1. Court-ordered desegregation plans may not involve school districts outside the desegregation district unless those districts also had engaged in unlawful racial segregation




Gender Discrimination Under the 14th Amendment

  1. Close and substantial relationship to an important governmental objective?
  2. Exceeding persuasive justification?
  3. Compelling State purpose?


Constitutional Dimensions

  1. Reed v Reed – the gov may not treat similarly situated men and women differently merely b/c of archaic stereotypes, even if doing so would promote administrative convenience in some cases
  2. Two important decisions illustrating the scope of protection afforded gender arise in the context of higher education
    • Mississippi University for Women v Hogan: the party seeking to uphold a statute that classifies individuals on the basis of their gender must carry the burden of showing an exceedingly persuasive justification for the classification
    • Clark v Arizona Interscholastic Assn: school districts must carefully consider the constitutionality of policies involving gender-based classifications. Such policies must, at the least, seek to further important – potentially even exceedingly persuasive – governmental objectives by means substantially related to those objectives. Further, those objectives cannot be formulated after the fact. Rather, they must be real expressions of the district’s purposes in establishing the policies
  3. The door remains open for single-sex schooling under federal and state constitutional law, though proponents of such schemes will have to be prepared to withstand searching judicial inquiry into their motives and into the comparability of the programs offered.


Title IX and its Regulations

  1. Title IX of the 1972 Educ Amendments provides in part that “No person in the US shall on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any educ program or activity receiving federal financial assistance.” The US Dept of Ed’s Office for Civil Rights (OCR) is charged with implementing and enforcing the law. Title IX applies primarily to students in public schools and in private schools receiving federal funds
  2. Schools subject to Title IX must ensure that their athletic programs offer equal opportunities for athletic participation to students of both genders
  3. Title IX does not prevent schools from operating single-sex sports teams if members are selected on the basis of competitive skill or if the team plays a contact sport


Parents Involved in Community Schools v Seattle District no 1

  1. Race-Based Student Assignment Plans at Issue in Parents Involved
  2. Seattle
    • Ninth graders chose among 10 HS by order of preference
    • HS must be within 10% of 41% white and 59% non-white
    • If school oversubscribed, tiebreakers used
      • 1 tiebreaker: sibling enrolled
      • 2nd: race of applicant
      • 3rd: student residence
  3. Louisville
    • Non-market schools must be between 15% and 50% black
    • Elementary schools grouped by clusters to facilitate integration
      • Kindergartners, first graders, and new students select 1st and 2nd choice schools within clusters
      • Student assignment based on available space and racial guideline above
      • Transfers thereafter permitted if space available and racial guidelines permit
  4. Assigning students to public school based on their race is unconstitutional even if the purpose is to promote integration (four justices)
  5. Assigning students to public school based on their race is constitutionally permissible to promote integration (four justices)
  6. Nuanced use of race in student assignment policies is permissible to promote integration (one justice)
  7. Justice Kennedy’s majority views
    • Racial considerations can be used to
      • Choose sites for new schools
      • Draw student attendance zones with recognition of neighborhood demographics
      • Allocate resources for special programs
      • Recruit both teachers and students
      • Produce statistical compilations

Facts of the Case: The Seattle School District allowed students to apply to any high school in the District. Since certain schools often became oversubscribed when too many students chose them as their first choice, the District used a system of tiebreakers to decide which students would be admitted to the popular schools. The second most important tiebreaker was a racial factor intended to maintain racial diversity. If the racial demographics of any school’s student body deviated by more than a predetermined number of percentage points from those of Seattle’s total student population (approximately 40% white and 60% non-white), the racial tiebreaker went into effect. At a particular school either whites or non-whites could be favored for admission depending on which race would bring the racial balance closer to the goal.

  1. A non-profit group, Parents Involved in Community Schools (Parents), sued the District, arguing that the racial tiebreaker violated the Equal Protection Clause of the Fourteenth Amendment as well as the Civil Rights Act of 1964 and Washington state law. A federal District Court dismissed the suit, upholding the tiebreaker. On appeal, a three-judge panel the U.S. Court of Appeals for the Ninth Circuit reversed.

Under the Supreme Court’s precedents on racial classification in higher education, Grutter v. Bollinger and Gratz v. Bollinger, race-based classifications must be directed toward a “compelling government interest” and must be “narrowly tailored” to that interest. Applying these precedents to K-12 education, the Circuit Court found that the tiebreaker scheme was not narrowly tailored. The District then petitioned for an “en banc” ruling by a panel of 11 Ninth Circuit judges. The en banc panel came to the opposite conclusion and upheld the tiebreaker. The majority ruled that the District had a compelling interest in maintaining racial diversity. Applying a test from Grutter, the Circuit Court also ruled that the tiebreaker plan was narrowly tailored, because 1) the District did not employ quotas, 2) the District had considered race-neutral alternatives, 3) the plan caused no undue harm to races, and 4) the plan had an ending point.


1) Do the decisions in Grutter v. Bollinger and Gratz v. Bollinger apply to public high school students?

2) Is racial diversity a compelling interest that can justify the use of race in selecting students for admission to public high schools?

3) Does a school district that normally permits a student to attend the high school of her choice violate the Equal Protection Clause by denying the student admission to her chosen school because of her race in an effort to achieve a desired racial balance?

Conclusion: (1) No, (2) no, and (3) yes. By a 5-4 vote, the Court applied a “strict scrutiny” framework and found the District’s racial tiebreaker plan unconstitutional under the Equal Protection Clause of the Fourteenth Amendment. Chief Justice John Roberts wrote in the plurality opinion that “The way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” The Court acknowledged that it had previously held that racial diversity can be a compelling government interest in university admissions, but it ruled that “[t]he present cases are not governed by Grutter.” Unlike the cases pertaining to higher education, the District’s plan involved no individualized consideration of students, and it employed a very limited notion of diversity (“white” and “non-white”). The District’s goal of preventing racial imbalance did not meet the Court’s standards for a constitutionally legitimate use of race: “Racial balancing is not transformed from ‘patently unconstitutional’ to a compelling state interest simply by relabeling it ‘racial diversity.’” The plans also lacked the narrow tailoring that is necessary for race-conscious programs. The Court held that the District’s tiebreaker plan was actually targeted toward demographic goals and not toward any demonstrable educational benefit from racial diversity. The District also failed to show that its objectives could not have been met with non-race-conscious means. In a separate opinion concurring in the judgment, Justice Kennedy agreed that the District’s use of race was unconstitutional but stressed that public schools may sometimes consider race to ensure equal educational opportunity.


Crawford v LA Unified School Dist

  1. Riots were causing development of segregated communities
  2. Equal Protection Clause of the CA Const requires school districts to undertake reasonable steps to alleviate school racial segregation regardless of cause
  3. LA Board position was pretty dis-involved in making less segregated communities


American Civil Rights Foundation v Berkeley Unified School Dist

  1. Pacific Legal Foundation attorneys represent the American Civil Rights Foundation in a direct challenge to Berkeley Unified School District’s race-based Elementary Student Assignment Plan, and its race-based admissions policy for Berkeley High School’s “small schools” and academic programs.

The Berkeley Unified School District recently instituted a new Elementary Student Assignment Plan.  The goal of the plan is to integrate elementary and magnet schools within the District by using (1) parent education level; (2) parent income level; and (3) race and ethnicity.  To accomplish the goal, the District created a composite diversity map that takes into consideration these three diversity factors.  Student assignment does not rely on the actual personal attributes of students.  Rather, each student (regardless of actual parent income, parent education, or race) receives priority based on a composite of attributed diversity characteristics derived from the planning area in which he or she lives.

  1. There are 445 planning areas in the District.  Each planning area gets a “diversity category” from 1 to 3 that measures that area’s “composite diversity.”  So, for example, a planning area with a high average income, a high average level of parent education, and a high percentage of whites will obtain a “3” while a planning area with a very low average income, a very low average level of parent education, and a very low percentage of whites will obtain a “1.”  Those student applicants who are assigned a “1” are given greater priority in their choice of school than those assigned a “3.”  PLF is challenging the school assignment policy as discriminatory under Proposition 209.

The District’s only public high school, Berkeley High School, offers six specialized options outside the general curriculum.  Specifically, it runs four specialized “small schools” (in the arts, humanities, etc.), along with two specialized academic programs that offer challenging courses.  The District’s policy is to make each school and each program reflect the racial and socioeconomic diversity of the high school as a whole—even if that means having to reduce the openings in a small school or academic program.  Thus, in the name of diversity, some students are denied admission into a small school or academic program simply because they are of the “wrong” race, while others are admitted simply because they are of the “right” race.

  1. Both programs violate Article I, Section 31, of the California Constitution (Proposition 209) to the extent that they use race and/or ethnicity to determine which students may and may not participate in those programs. 



  1. The No Child Left Behind Act contains an important section entitled the Paul D. Coverdell Teacher Protection Act, which is intended to shield school employees and individual members of a governing board from liability in state court for maintaining order and ensuring safety at school. It applies to states that receive federal assistance and that have not elected to be exempt from that act.
  2. Specifically, the law extends immunity protection when school employees or individual board members take action in conformity with federal, state, and local laws to control, discipline, expel, or suspend a student or maintain order or control in the classroom or school. However, the immunity is carefully conditioned. There is no immunity if school personnel are not acting within the scope of their employment or if they engage in willful or criminal misconduct, gross negligence, reckless misconduct, or flagrant indifference to the rights of the individual. Nor is there any immunity for crimes of violence, sexual offenses, violations of civil rights, or acts or omission occurring while alcohol or drug impaired. Nothing precludes a school or other governmental entity from filing a civil suit against a teacher or other school official. The act also does not apply to cases involving harm caused by the use of a motor vehicle, nor to those involving the imposition of corporeal punishment.


CA Tort Claims Act

  1. The standards relating to liability of CA gov entities and their employees for damages under state law are set forth in the CCA Tort Claims Act.
  2. The Act has a claims presentation requirement that necessitates submitting a written claim to the school district before legal action can be initiated for damages. The claims requirement, however, does not apply to charter schools operated by nonprofit benefit corporations, because they do not meet the definition of a public agency
  3. A few key points emerge from reviewing the Tort Claims Act (TCA). First, school employees are shielded from personal injury law suits when they are using discretion in carrying out their responsibilities. Immunity under state law does not extend to claims involving federal law. Second, if the employee is immune, the district bears no liability unless otherwise provided by state law. The assumption of liability by the employer is called vicarious liability or respondent superior, meaning that the district is held accountable for the acts of its employees. Third, as policymakers, school board members enjoy broad immunity for their acts
  4. Injury to students on campus: The district is vicariously liable for the acts of its employees when they are acting in the scope of their employment and not undertaking a duty imposed by the Educ Code.
  5. Students are to be supervised while on the school playground. The Educ Code imposes a duty to discipline students for misconduct occurring while going to and from school, on the playgrounds, and during recess
  6. Noting that private schools have a duty under the law to supervise if school officials reasonably could anticipate that it is necessary, the ct concluded that, had the public school employees been in the private sector, they would have been liable if the facts alleged by the student turned out to be true.
  7. A school’s duty to supervise students begins before students sit down at their desks when the school bell rings.
  8. To reduce the risk of liability, a school either should preclude students from coming on campus before the opening of school or be prepared to provide supervision if students are allowed on campus prior to this time. The same holds true at the end of the day.
  9. School officials must always inform teachers of students with discipline problems stemming from suspendable or expellable acts
  10. Corporeal punishment statutes do not create any mandatory, affirmative duty on the part of public schools and school districts to take action or carry out measures to ensure that students are never subjected to corporal punishment by teachers
  11. The outcome in the Clausing case does not mean that educators can us corporal punishment or violate a student’s right to a safe school environment or to privacy without consequences. For ex, a teacher who uses corporal punishment in violation of the statute and district policy may be liable to the student injured, because the teacher would be acting outside the scope of employment. The district may be liable if it condones the use of corporal punishment
  12. The district does not have a mandatory duty under the provisions of the Educ Code to prevent such actions from ever happening
  13. While school employees do have a mandatory duty to enforce rules and regulations necessary for the protection of children on school grounds, the school district does not have a mandatory duty to create of enforce a rule directed toward conduct that is not unsafe
  14. Make sure that the student code of conduct rules against behavior that may lead to injury and that the rules are enforced
  15. Liability when school employees act outside the scope of their employment
  16. A district is not vicariously liable under the TCA for a teacher’s allegedly sexually assaulting a student at the teacher’s home or at school b/c such an act is not encompassed within the teacher’s scope of employment. But this cannot shield the district from lawsuits in federal ct based on Title IX. Also, if the district officials are negligent in hiring or supervising employees who injure students, the district may be liable. This is most apt to occur in the context of sexual abuse
  17. Injury to student athletes
  18. Educ Code places responsibility on teachers to supervise students on the way to and from school, on the playground, and at recess. CA cts have recognized that the primary assumption of risk that student participants must shoulder when they engage in many extracurricular and athletic events lessens employee liability in these instances and, through them, the liability of the district.
  19. A coach is not an insurer of the student’s safety and cannot be liable unless the coach were to increase the risk of harm over and above that inherent in the sport
  20. The risk is inherent if its eliminations would alter the fundamental nature of the activity
  21. It is clear that while there is a primary assumption of risk when students participate in competitive athletics and that nothing precludes a coach from encouraging students to go beyond their current level of competence, a coach has a duty of care reasonable to prepare students to engage in the activity so that the risk of harm is not heightened
  22. But it is important to note that when a student injury is not attributable to participating in the athletic activity, the standard of care exercised by the school and its personnel is the same as for students generally.
  23. TC provides immunity for districts and employees when persons engage in hazardous recreational activities on school property. This does not apply to student athletes who are injured. School-sponsored athletic activities that are under the supervision of school personnel are not hazardous recreation activities
  24. Classroom methodology affords no readily acceptable standards of care, or cause, or injury. Due to the absence of criteria to isolate the contribution of the school to a student’s learning from the myriad other factors that affect it, the ct dismissed the case.
  25. Injury to students off campus
  26. Educ Code makes teachers responsible to students going to and from school – the “portal to portal” responsibility. But it does not mean that teachers must supervise students on their way to and from school
  27. Rather, it is intended to give teachers the authority to discipline students who misbehave on the way to and from school. Educ Code provides that no school district, city or county board of ed, county superintendents of schools, or their officers or employees shall be responsible or liable for student conduct and safety off school property unless they have undertaken to provide transportation to students to and from school premises, have undertaken a school-sponsored activity off school premises, have otherwise specifically assumed such responsibility or liability, or have failed to exercise reasonable care under the circumstances
  28. When a school district assumes responsibility for students when they are off campus, the statute provides that the district, board, or employee is liable or responsible for the conduct or safety of the student only when the student is or should be under the immediate and direct supervision of an employee
  29. Educ Code exempts districts and employees from liability when high school students are allowed to leave school grounds during lunch with parental permission. Another exemption encompasses voluntary filed trips and excursions
  30. All persons making the field trip or excursion shall be deemed to have waived all claims against the district, a charter school, or the State of CA for injury, accident, illness, or death occurring during or by reason of the field trip or excursion
  31. When students participate in non-required field trips or excursions, the voluntary nature of the event absolves the district of liability
  32. While district and employee liability is thus restricted when students leave school grounds for lunch and field trips, Educ Code gives districts the authority to discipline students at these or other times such as going to and from and during school-sponsored activities
  33. Educ Code requires teachers to enforce those rules and regulations necessary for the protection of students
  34. It is not intended to protect nonstudents who are not only school property against the risk of injury
  35. The coach owed no duty to protect innocent thrid parties from injury
  36. First, school authorities have a well-recognized responsibility to supervise and protect students, and if they believe that students are dangerous, the duty extends to protecting third parties
  37. Second, if school officials assume responsibility under the Educ Code for supervising students when they are off campus and then do not exercise reasonable care, they may be liable for injuries sustained by third parties
  38. Under the TCA, school districts and their employees enjoy considerable immunity from liability for injuries sustained by nonstudents who participate in hazardous recreational activities on school premises
  39. The statute does not provide immunity from liability if the entity or employee knows about a dangerous condition that cannot be assumed to be inherent in the activity and provides no warning; if a specific fee is charged to engage in the activity, if the structure or equipment is not in good repair, if the public entity or employee recklessly or with gross negligence promotes participating in the activity, or if gross negligence by the entity or employee is the proximate cause of the injury
  40. Dangerous conditions of school property
  41. A school district can be liable when a dangerous condition of it property causes injury. The condition must be caused either by the negligence of employees or by a known conditions that the district did nothing to correct
  42. The condition of property must have something to do with the injury for there to be liability
  43. Conversely, if the condition of property increases the risk of injury, the district may incur liability
  44. Waivers of liability
  45. Waivers of liability are not very useful unless they are explicitly worded.
  46. For a waiver to be valid, the person signing it must be aware of what is being given up
  47. Counselors and the duty to warn
  48. When a therapist knows or should know that his patient presents a serious danger of harm to another person, the therapist has a duty to use reasonable care to protect the intended victim from harm. The cloak of confidentiality between dr and patient cannot insulate the therapist from liability
  49. Educ Code says that person info disclosed by a student who is twelve or older is confidential and that the counselor is not to be subjected to any civil or criminal liability for nondisclosure. The same is true of confidential info disclosed to the counselor by a parent of a student who is 12 or older. Info is not to become part of the student’s record without written consent of the person who disclosed it and may not be revealed to anyone
  50. Two exceptions to confidentiality: the first permits reporting info to the principal or parents of the student when the counselor has reasonable cause to believe that disclosure is necessary to avert a clear and present danger to the student or other persons in the school community. The second permits disclosure to the principal, the student’s parents, or other persons outside the school when the student indicated that a crime involving personal injury or significant property loss has been or will be committed. However, the statute prohibits disclosure of info to the parents of the student when the counselor has cause to believe that the disclosure would result in a clear and present danger to the health, safety, or welfare of the student. The statute also requires school counselors to disclose confidential info to law enforcement agencies pursuant to a ct order when necessary to aid in the investigation of a crime, or for purposes of testifying in and administrative or judicial proceeding.
  51. The federal Family Education Rights & Privacy Act provides that disclosure of personally identifiable info about students and their families for health of safety emergency reasons does not violate the act
  52. A Word about Insurance
  53. The Educ Code requires school districts to secure liability insurance for themselves, their board members, and their employees for person injury, property damage, and death.
  54. If the employee is not acting within the scope of employment, then the district has no responsibility either to defend the employee or pay any judgment.






LIABILITY UNDER FEDERAL LAW – under sec 1983: ask “is there a federal right involved? If so, no claim!”

If can’t sue under Titles, then sue under 1983


  1. Liability of schools under 42 USC Sec 1983: “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State, subjects, or causes to be to be subjected, any citizen of the US or other persons within the J thereof to the deprivation of any rights, privileges, or immunities secured by the Const and laws, shall be liable to the party injured in an action at law, suit in equity , or other proper proceeding for redress.”
  2. Summary:
  3. As a municipality, district is a “person” under 1983
  4. School district liable if its policies or practices violate fed rights
  5. School districts liable if board members or employees acting in official capacity carry out district policies or practices that violates federal rights
  6. No liability of CA School Districts under 42 USC 1983
    • 11th Amend immunity protects school districts from liability for fed wrongs b/c
      • School district revenues are state controlled
      • Public schooling is closely controlled by the state
      • School districts are corporate agents of the state (Belanger)
    • BUT, Belanger has limits:
    • Doesn’t apply to lawsuits seeking declaratory judgment or injunctive relief and associated attny fees
    • Congress can abrogate 11th Amend immunity (eg sec 504, ADA, Title VII, Title IX)
    • Are charter schools immune as well? Probably not
  7. Liability of School District Employees Under 42 USC 1983
    • If acting in individual capacity in carrying out discretionary acts
    • If violate clearly established federal statutory or constitutional rights of which a reasonable person would have known (i.e., no qualified immunity)
      • Harlow v Fitzgerald
  8. Liability Generally for School Districts in Fed Ct under 1983
  9. As a municipality, school district is a person under 1983
  10. School district liable if its policies or practices violate fed right
  11. School district liable if board members or employees acting in official capacity carry out district policies or practices that violate fed rights
  12. Liability of Supervisor for the Acts of Persons They Supervise Under 42 USC 1983
  13. Knew or had reason to know of subordinate’s acts implicating a federal right
  14. Are callously or deliberately indifferent (more than mere negligence)
  15. The actions or inactions of the supervisor
  16. cause injury to the student (Oona R v mc Caffrey)
  17. Summary of Liability for Damages Under 42 USC 1983
  18. California school districts
    • Eleventh Amendment immunity
    • Eleventh Amendment immunity doesn’t apply to declarative judgment or injunctive relief and associated attorney fees
    • Eleventh Amendment immunity doesn’t apply to federal statutes like Title VII and Title IX where Congress has abrogated immunity
  1. California school employees
    • If acting in individual capacity
    • If knew or should have known that acts would violate clearly established federal rights
  2. California school supervisors for acts of subordinates
    • If aware of subordinate’s acts implicating federal rights
    • If are callously or deliberately indifferent
  3. Always can sue individuals under 1983 (just not District)



  1. Sec 1983 enables those who believe they are the victims of federal wrongs committed be persons employed by the gov to bypass state courts and bring their claims directly to fed ct.
  2. The meaning of a “person” encompasses a public school district, as well as the individuals it employs (same with charter schools)
  3. Unlike school districts in other states, CA school districts are not considered municipalities under Sec 1983 and cannot be sued under this statute. CA school districts are an arm of the state and thus immune under the 11th Amend from fed claims
  4. CA school districts are not political subdivisions but rather agents of the state performing central governmental functions
  5. While the 11th Amend bars lawsuits for damages against CA school districts under Sec 1983, id does not preclude cts from issuing ct orders defining rights and legal relationships
  6. Liability of School Employees under 42 USC Sec 1983
  7. If a school district cannot be sued in federal ct for federal wrongs under Sec 1983, not can individual employees when they are acting in their official capacity. With this:
    • The first question is to identify what federal right is at stake. If there is no recognized federal right, the matter is at an end, and the case will go nowhere under Sec 1983.
      • There is a 14th Amend liberty right to be free from injury inflicted by a school official
    • Once a federal right is found, the next question is whether school employees acting in their individual capacity are entitled to qualified immunity unless the officials knew or should have known that their actions would violate a clearly recognized federal right?
      • If acting in own capacity, then liable
  1. A supervisor can be liable for a subordinate’s violations of federal rights in Section 1983 lawsuit – as long as the supervisor knew or should have known about the acts and failed to stop the.




  1. Title VII
  2. Title VII applies to state and local gov entities, which include the entire range of public school employers. Title VII prohibits employment practices or discrimination based on race, color, religion, sex, or national origin
  3. For ex: if a school principal alleges that he was terminated based on race, he must prove the following to maintain a Title VII disparate treatment lawsuit:
    • He was a member of a protected class
    • He was qualified for his position
    • He was discharged
    • He was replaced by a person outside of the protected class.
  4. If the principal can demonstrate each of these factors by a preponderance of the evidence, there is an inference of discrimination the employer school district must rebut by demonstrating that there was a legitimate, nondiscriminatory reason for the adverse employment action
  5. Americans with Disabilities Act and Section 504
  6. These are federal law prohibiting discrimination on the basis of disability.
  7. ADA applies to public and private employers while Sec 504 applies only to recipients of federal funding.
  8. As public employers in receipt of federal funding, all public school employers are subject to ADA and sec 504.
  9. ADA’s protections extend to a qualified individual with a disability. ADA defines a disability as
    • A physical or mantel impairment the substantially limits one or more major life activity
    • A record of such an impairment
    • Being regarded as having such an impairment
  10. The ADA requires an employer to make reasonable accommodations for qualified individuals with a disability.
  11. Fair Employment and Housing Act
  12. FEHAS is a CA law governing employment discrimination. FEHA applies to private and public employers.
  13. FEHA’s antidiscrimination provisions are broader than those in title VII or ADA. FEHA prohibits discrimination on the basis of race, religion, color, or national origin, ancestry, physical or mental disability, medical condition, sex, age, pregnancy, or sexual orientation. Title VII does not extend to physical or mental disability, medical condition, age, or sexual orientation. Title VII does not extend to physical or mental disability, medical condition, age, or sexual orientation. FEHAS also differs from federal law (ADA) on the definition of disability. ADA requires a mental or physical impairment to substantially limit one or more major life activities. FEHA, however, merely requires a physical or mental impairment to limit a major life activity
  14. FEHA also prohibits two types of sexual harassment applicable to the workplace. The first is quid pro quo sexual harassment in which a person in a position of authority conditions tangible benefits (e.g., a favorable job review increase in salary promotion, etc) on sexual favors. The second is a hostile workplace environment.
  15. A hostile workplace environment exists where the employee can demonstrate
    • That he was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature
    • That this conduct was unwelcome; and
    • That the conduct was sufficiently sever or pervasive to alter the conditions of the victim’s employment and create an abusive working environment




Racial harassment under Title VI

  1. School District Liability for Racial Harassment Under Title VI

School district is liable for racial harassment by employees and students if:

  1. Harassment is sufficiently severe to deprive victim of equal educational benefit
  2. District knew or should have known about the harassment
  3. District was deliberately indifferent

Monteiro v. Tempe Union High School District (9th Cir. 1998)

Note that remedies include injunctive relief and compensatory damages.


  1. OCR in the US Dept of Education has developed a ser of adminstrative rules for implementing Title VI and has the power to levy sanctions against entities for violations, including curtailing federal funding
  2. In addition to OCR enforcement, victims of discrimination may file lawsuits under Titel VI and its implementing regulations against school district and private schools receiving federal funds, seeking both injunctive relief and conpensatory dmamges.
  3. But, to be successful, Ps must shoe an intent to discriminate
  4. Discriminatory impact is insufficient to trigger a violation under both the equal protection clause and Title VI and under Two VI’s implementing regulations
  5. The Ninth Circuit laid out three conditions for peer racial harassment to violate Title VI;
    • It must be established that a racially hostile environment exists
    • It ,must be established that the district knew or should have known about the racially hostile environment
    • It must be shown that the district was deliberately indifferent to the need to take action to stop the harassment
  6. Failing to take steps to root out racial harassment can result in liability for both the district under Title VI and individual school personnel under Section 1983


Sexual Harassment and Abuse under Title IX

School District Liability for Employee-on-Student Sexual Harassment Under Title IX

  1. An official who has authority to take corrective action has actual notice of harassment/discrimination
  2. The official is deliberately indifferent

Gebser v. Lago Vista Independent School District (U.S. Sup. Ct. 1998)

School District Liability for Student Peer Sexual Harassment Under Title IX

  1. Official who has authority to take corrective action has actual notice of the harassment
  2. Official is deliberately indifferent
  3. Harassment is so severe and offensive that it deprives the victim of equal access to educational opportunities or benefits

Davis v. Monroe County Board of Education (U.S. Sup. Ct. 1999)


  1. Two standards for determining school district liability under Tile IX:
    • The matter has to be reported to a school official who has authority to institute corrective measures
    • The official has to be deliberately indifferent
  2. Nothing precludes the student from seeking remedies under state law and suing school personnel individually for damages under 42 USC sec 1983
  3. Sexual harassment is covered by Title IX and that the district can be liable of the harassment is reported to an official who has authority to take corrective action, the official is deliberately indifferent to doing so, and the harassment is so severe that it constitutes deprivation of equal access to educational opportunities or benefits.
  4. Same-sex harassment is actionable under Title IX
  5. CA law both mirrors Title IX and goes beyond it. Educ Code prohibits public and private educational institutions from discriminating against persons on the basis of gender as well as disability, nationality, race or ethnicity, sexual orientation, or any other characteristic that falls within the definition of hate crimes of the Penal Code. Private schools are exempt from this requirement if compliance would violate their religious tenets.
  6. Educ Code defines gender to include a person’s gender identity and gender-related appearance whether or no not related to a person’s biological sex.
  7. Money damages for violating these sections are available
  8. CA school districts may not utilize state funds for sports programs that do not provide male and female students wit equal opportunities and equal use of facilities.


Gesber v Lago Vista Indepnt School Dist

Damage liability under Title IX does not extend to a school district unless an official “who at a minimum has authority to institute corrective measures on the district’s behalf has actual notice of, and is deliberately indifferent to, the teacher’s misconduct.”


Davis v Monroe Cnty Bd of Educ

    • School official who has authority to take coercive action has actual notice if the harassment
    • Official is deliberately indifferent
    • Harassments is so severe and offensive that it deprives the victims of equal access to educational opportunities or benefits
  1. The Court began by noting that because there is an implied private right to education under Title IX, private damage actions may lie against schools that act with deliberate indifference to harassment that is severe enough to prevent victims from enjoying educational opportunities.
  2. The Court added that Title IX’s prohibitions against harassment in school are clear enough to have served proper notice to school boards in general and the Board in particular. As such, consistent with the Spending Clause, the Title IX guidelines that Congress attached to its school funds obligate all recipient schools to comply or face the pain of legal action. The Court also observed that the Board acted with deliberate indifference, since it ignored several complaints by Davis, and that the harassment in question was serious and systematic.


Education Code Sections 220-221

No person shall be subject to discrimination on the basis of disability, gender, nationality, race or ethnicity, religion, sexual orientation, or any other characteristic that constitutes a hate crime as set forth in Penal Code § 422.55 in any program that receives or benefits from state financial assistance or enrolls students who receive state student financial aid. Does not apply to schools controlled by a religious educational organization if inconsistent with religious tenets of the organization.

-Construed to provide damage remedies in Donovan v. Poway Unified School District (Cal. App. 2008).


CA Unruh Civil Rights Act

  1. “All persons within the J of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations advantages, facilities, privileges, or services in all business establishments of every kind whatsoever”
  2. For a claim to be viable, it must be established that the discrimination was arbitrary or intentional. Practices that have an unintentional disparate impact on a class of persons are not actionable, Penalties include both compensatory damages and injunctive relief, and can encompass both entities and individual employees. Punitive damages are also available.
  3. The Educ Code requires educational institution to have a written policy on sexual harassment as part of its general operating procedures
  4. A violation of the ADA also is a violation of the Unruh Act. Thus, a victim of disability discrimination can seek relief under either or both federal and state law. This is particularly significant in the case of private schools b/c damages remedies are available in this instance under the Unruh Act but not under the ADA.


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