1 Assignment 1 Position Paper One – Social and Cultural

1
Assignment 1: Position Paper One – Social and Cultural Norms
By
Student Name
SOC105: Society and the Media
Professor Doar-Sinkfield
Date
Disclaimer: This is a sample. Use this as an example and create
your own essay.
2
Introduction
Mass media is not the primary decision-maker of family values.
Americans have
traditional values that are not influenced by mass media given
that agenda-setting theory states
media does not tell us to do, however as stated in the Taking
Sides: Clashing Views in Media

and Society textbook, “the “agenda setting theory” of
communication, which posits that media
do not tell us what to think, but rather, tell us what to think
about, to studies of para-social
interactions (the relationship we form with people whom we see
in media), and ideas of
resonance, which describes how we relate to the images we see
in media.” (Alexander 3) This
premise allows families to differentiate between what is real
and what is false on mass media,
thereby preventing mass media influences from infiltrating
family values.
What are family values? Fjdkosfpjnkl;ag aovjoiiasndkl;nla
aovlllklkksdnnklvl akvojkl;na
fvl jiopjolml avonskl;nv la;oivl;I; alvnionl;f a;vioi;lka
fnkl;vl;oa jk blab blabl balblalblb blallalb
obnionvkl;dflk;kkl;x kl;mgklfdnongf. Aov l;kfdj poi s
aovnkl;nerl;nigoha;in; svoinkle;rnkoy;
ios vldfiuhaiol; nlk;a v oivo aknglkk aov okelnakl uoipv
jioapiuopjklfja 9pa jfkodjsi9pb
aioimfokdsnkla 9oiedo.
Commuting to that job is a long challenge and arriving at home
is the task of preparing
dinner, assisting with homework, which in some cases dinner

and homework may not get done.
Vnfiopniop gaflkaiopbuire aoivfiuv iod sldfioddfoi sliovfiorek
sldlsogoirt fdklfdogeiong
slvoivoivlkf alkvoi iorflks .
3
Kalvjiophnoe ao ldlak I aoivn;ioe a ankl;fniov aklvoifals
aovia;mv kl;sip s;lgkv ionkl;s
oviga;lnekldi sliopfngkl slsl igofns .kgiopngbkl;ewl. Aipjviopr
slf;isoigi0ob wmmov oskl
f,lwooik;gvmkrk sobnil;ks ogbornkls;okb illk;lsmg oil; sibpii;lr
kslinblr;iopng lslbooirk;dsb
os[jibiomr slb;por;s’;lbp djmklobm;r’ ;s boip[sml;s spb’s;.
While it is evident that mass media affects individuals and
families, it is proven that
families have the final say, guidance, and direction when it
comes to setting standards and
morals for children. Onkl;v alv ionsd v oi;ndkgl; ak;lvi;nr
;aa;oiohgibpiugjkf sjiobfjkla
ivkjeklbj vkjlhjuld sibhior;hnd opil;bhkro; uis; biuhj;;sob rl;s
odihbio; skbofils trkl;sil
fksonbillrls klioibjklr soilgil; s.

Conclusion
In conclusion, mass media plays an important role in society as
it pertains to information
and awareness; however, it does not take the place of productive
education from a teacher,
educator, or parent. In theory, agenda setting directs attention
to issues of concern, but that is not
the solution, individuals must take the information received to
review and disseminate wisely not
only to children but to those in the community in which they
serve and live. Reality shows do
show the condition of American life, but it is not typical of
American family values.
4
Source Page
1. Alexander. 2019. Taking Sides: Clashing Views in Media and
Society. 15th edition.
2. …
3. …

Digital Risk Concerns
In a companion Issue Brief, Educator’s Guide to Digital Risk,
the
key areas of youth risk related to the use of digital technologies
were outlined. These include:
• Digital Aggression. Use of digital technologies to
intentionally
engage in hurtful acts directed towards another.
• Digital Threats or Distress. Posting information that is a direct
threat or “leakage” indicating emotionally distress and the
potential for violence against self or others.
• Digital Abuse. Abusive and controlling use of digital
technologies in the context of abusive personal relationships.
• Digital Exploitation. Fantasy relationships, pressure to
provide or
distribution of revealing images, grooming, and sex trafficking.
• Unsafe Online Communities. Online communities that support
self-harm or hatred and violence.
Legal Issues
There are a number of legal standards that must inform the
investigation and intervention process.
• Student Off-Campus Speech. Federal courts have consistently
held that school officials can formally respond to student off-
campus speech that has or reasonably could cause a
substantial disruption on campus, including situations that have
or could lead to violence, overall interference with the delivery
of instruction, or significant interference with the ability of any
other student to fully participate in school activities.Document

the following:
- Nexus. The connection between student’s off-campus
speech and the school community.
- Interference with Rights of Other Students. How student
speech is interfering with the rights of another student or
students to be safe and receive an education. If students
have targeted school staff, the disruption must interfere with
students’ rights.
- Substantial. Why the interference is “substantial,” not merely
an inconvenience or situation that has caused offense.
- Predicted Disruption. If disruption has not occurred, reasons
why disruption can be predicted.
- Interference With Other Student to Receive an Education.
Must be demonstrated based on both that student’s
subjective perspective and an objective observer
perspective.
• District Responsibility. Schools have a responsibility under
civil
rights laws to prevent student-on-student harassment that is so
severe that it deprives a student of the right to receive an
education. While there is no case law, if a school has actual
knowledge that a student is being denied a right to an
education by another student’s off-campus speech combined
with hurtful actions at school, failure to intervene coul d be
considered deliberately indifference.
• Search and Seizure. Students have a significant expectation of
privacy in these digital records. Reasonable suspicion is likely
sufficient for school official search. But school officials can
only

search records related to the suspicion, not all records on the
device. When law enforcement becomes involved, the
standard shifts to probable cause. Students and their parents
should be advised of their right to refuse consent to search by a
school official or by a law officer without a search warrant.
Policies & Practices
Effective investigations and interventions must be ground in
appropriate policies and protocols. These policies and protocols
will govern the actions of school officials and law enforcement
when investigating and intervening.
• Bullying and Harassment Policy. Include language in the
district
policy that ensures students and parents have notice the
school will intervene in situations where off-campus speech has
or could cause a substantial disruption at school or interfere
with the rights of students to be secure. Additionally, include
provisions that require a full investigation, encourage
restorative
interventions, and ensure post-incident evaluation. This policy
should apply to extracurricular activities.
• Threat Assessment and Suicide Prevention Protocols. Revise
to
address the fact that threatening material is posted online.
• Cell Phone and Imaging Devices. Develop reasonable policies
to restrict harmful use on campus.
• Law Enforcement and Mental Health Involvement. Develop a
protocol with local law enforcement and community mental
health professionals for investigation and intervention of the
more significant concerns. Protect students’ constitutional
rights. Promote community-based restoration.

Investigation
School officials, as well as law enforcement, must take the time
to
fully investigate any digital risk situation. School officials can
use
digital evidence to more fully understand the situation, but this
evidence could be deceptive or not disclose the entire situation.
It is important to gin an understanding of the entire situation--
including face-to-face interactions, as well as digital. Follow
these
steps:
• Preserve Digital Evidence. Gather and preserve the digital
evidence and determine the identity of individuals involved. If
someone is anonymous or it appears a fake profile has been
created, look for lesser-involved students who are identifiable
and question them, promising confidentiality. Law officers have
greater ability to determine identities through a subpoena if the
matter involves criminal activity. Watch out for fake profiles
designed to get someone into trouble. Once the materials
have been preserved, file an Abuse Report on the site to get
any hurtful or inappropriate materials removed.
• Review the Situation. Review the digital material and gain
insight from the student reporting to assess the harmful
relationships. Determine who is playing what role in this
situation, with what apparent motivation. Look closely to
determine whether online incident is a continuation of--or in
retaliation for--other hurtful interactions between the parties.
Determine whether the evidence gathered raises concerns
that any student may pose a risk of harm to others or self. A
staff
member who has been targeted online should not have
responsibility for the investigation.
• Collaborative Investigations. If it appears that there is an

imminent threat of violence, contact law enforcement and
initiate a protective response in accord with threat assessment
plan. If there appears to be an imminent threat of suicide,
follow suicide prevention protective plan. Situations involving
sexting or exploitation will require law enforcement and child
protective services involvement in accord with protocol that
has been developed.
Embrace Civility in the Digital Age ~ Issue Brief
Digital Risk ~ Investigation & Intervention
Restorative Interventions
Recent research, as well as litigation, has raised concerns about
the effectiveness of school responses to student aggression.
Students will not seek adult assistance if doing so could make
things much worse. Punitive interventions that generate anger
can lead to digital retaliation that can be accomplished
anonymously or by enlisting the support of online friends over
whom a school has no authority. It is imperative to shift from a
punishment-based approach to restorative interventions.1
Punishment-based approaches ask these questions:
• Who did it?
• What “rule” was broken?
• How should the offender be punished?
Restorative interventions view transgressions as harm done to
people and communities. Restorative approaches ask these
questions:

• What is the harm to the person and to the community?
• What needs to be done to repair the harm?
• Who is responsible for this repair?
• What needs to occur to prevent similar harm in the future?
Discussions with Targets of Aggression
Students who are targeted online are also likely experiencing--
or
could be causing--difficult relationships at school. Discuss what
has happened online and relationship issues at school. If a
hostile
environment exists at school, make sure this, and the school’s
protective responses, are well documented.
Discuss with target what response by the aggressor could help
to
restore well-being. Make sure the intervention plan is something
the target agrees with. Recognize the target is at risk of
retaliation
as a result of reporting to the school.
Discussions with Those Engaged in Aggression
The intent of a restorative intervention is to hold the person
who
caused harm accountable in a manner that is restorative. To be
held accountable requires that this person:
• Acknowledge that he or she caused harm.
• Understand the harm as experienced by the other person.

• Recognize that he or she had a choice.
• Take steps to make amends and repair the harm.
• Enunciate an intent to make changes in future behavior so that
the harm will be unlikely to happen again.
Aggressors often have emotional challenges that are not being
effectively addressed. Some may be the target of hurtful acts at
school--by other students or by staff. Some may have other
emotional challenges. Ask about and develop a plan to address
these challenges. If the aggressor is the target of bullying at
school, by students or staff, and has not reported this or the
situation has not been resolved, this issue that must be
addressed.
Restorative interventions should ensure these issues are
addressed.
Interventions Involving Dating Abuse
School officials may become aware of situations involving
dating
abuse that also involve using digital technologies for control
and
manipulation. A challenge in addressing these situations is that
young people in such relationships often resist adult
involvement
and may not have access to ongoing counseling.
Online resources can provide a significant advantage in
addressing these concerns. There are high quality sites that
provide resources on these issues, as well as “hotline”
services.2
Supporting Students Who are Distressed

Help any student who has been involved in a digital aggression,
abuse, or exploitation situation plan an approach to effectively
deal with the emotional trauma. Discuss with these students
possible sources of strength such as family support, friends,
community support, healthy activities, and counseling. Help the
target plan a “next steps” strategy to tap into these sources.
Make sure the student also knows to report any continuing
challenges. Periodically check in with the student to find out
how
things are going. Also contact the student’s teachers to ask them
to be attentive to any concerns.
In any situation where a student has had a revealing image
distributed, it is essential to predict sexual harassment and have
a
plan of action to prevent and intervene. This will require
ongoing,
intensive support of the student depicted. Help this student
enlist
the help of supportive friends. Respond to reports of harassment
in
a manner that is restorative and that sends a clear message that
such harassment will not be tolerated.
Law Enforcement & Mental Health Involvement
Situations involving sexting and other forms of exploitation will
often require the involvement of law enforcement. Some
incidents of digital aggression meet the criteria for a criminal
offense, as will some situations involving threats.
The young people who are involved in these situations may
often
require more significant mental health intervention than is
possible

to expect in a school setting.
Multidisciplinary collaboration involving law enforcement,
community mental health, and the schools will be necessary to
intervene in these more challenging situations.
A Restorative Justice program that works in conjunction with
the
juvenile justice system can be very helpful vehicle to address
sexting and egregious digital aggression situations. If there is
currently not a Restorative Justice program in the community, it
is
strongly recommended that schools provide leadership to
encourage the creation of such a program. Information resources
are available from the U.S. Department of Justice.3
Evaluation of Intervention
It is exceptionally important to conduct a post-evaluation of
every
situation to ensure the effectiveness of the intervention efforts.
• Request feedback from all parties involved. In digital
aggression
situations, this includes the target, target’s parents, aggressor,
aggressor’s parents, and other students who witnessed and
reported.
• Evaluate individual reports to determine need for continued or
corrective efforts.
• Conduct an aggregated analysis to inform school/district
prevention and intervention efforts.
Embrace Civility in the Digital Age
Embrace Civility in the Digital Age (a program of Center for

Safe
and Responsible Internet Use) promotes approaches that will
best
ensure all young people become cyber savvy and that seek to
address youth risk in the digital age in a positive and restorative
manner. Web site: http://embracecivility.org E-mail:
[email protected]
© 2011 Embrace Civility in the Digital Age. Permission to
reproduce and distribute for non-profit, educational purposes is
granted. Embrace Civility in the Digital Age is reliant on
sponsorships and donations. If this document is widely
distributed,
a donation is requested. See our web site for more information.
Nancy Willard’s new, Cyber Savvy: Embracing Digital Safety
and
Civility (Corwin Press), and online course, Cyber Savvy:
Promoting
Students’ Safe and Civil Internet Practice (Knowledge Delivery
Systems) extensive insight into effective instructional
approaches.
1 Valuable insight comes from the International Institute for
Restorative p.ractices. http://
www.iirp.org
2 http://loveisrespect.org; http://thatsnotcool.com;
http://www.breakthecycle.org; http://
loveisnotabuse.org; and http://athinline.org.
3 :Nicholl, C. G. Community Policing, Community Justice, and
Restorative Justice: Exploring the
Links for the Delivery of a BalancedApproach to Public Safety.
Washington, DC: U.S. Department of
Justice, Office of Community Oriented Policing Services,
1999,http://www.cops.usdoj.gov/files/ric/

Publications/e09990014_web.pdf, and Nicholl, C G. Toolbox
for Implementing Restorative Justice
and Advancing Community Policing. Washington, DC: U.S.
Department of Justice, Office of
Community Oriented Policing Services, 1999.
http://www.cops.usdoj.gov/pdf/publications/
e09990003_web.pdf
CUMULATIVE UPDATE FOR CALIFORNIA SCHOOL LAW,
SECOND EDITION
January 2013
This cumulative update for the second edition of California
School Law encompasses significant
legal developments since the book was published in April 2009
through mid-December 2012. The
update may be downloaded and printed without charge. Each
development is linked to the
relevant chapter and page in California School Law. Thus,
readers will find it easy to scroll
through this document to find developments of particular
interest. Another approach is simply to
print the update and keep it together with the book. Discard any
earlier updates that you
downloaded and printed, as this update includes them.

Because many updates involve legislative changes to the
California Education Code, readers who
want to consult the statutes themselves should go to the
California Department of Education
website at www.cde.ca.gov and click on Laws and Regulations
under the “Resources” heading.
Note that as with the book, the information herein is not
intended to take the place of expert
advice and assistance from a lawyer. It is posted on the book’s
website with the understanding
that neither the publisher nor the authors are rendering legal
services. If specific legal advice or
assistance is required, the services of a competent professional
should be sought.
This will be the last update for the second edition. The new
third edition of California School
Law will be available later in the spring. When the new book is
available, this cumulative update
will be removed from the book’s website and a new cumulative
update will be started for the
third edition.

CHAPTER 1
LAW AND THE CALIFORNIA SCHOOLING SYSTEM
Page 18: Governor Brown Eliminates Secretary of Education
Position.
Governors in the past have relied on a secretary of education
within their cabinet to advise them
on education. In a cost-cutting move, Governor Brown
eliminated this position in 2011.
Page 22: Efforts Are Underway to Empower Mayors Over
School District Governance.
In recent years legislatures in several other states have enacted
measures enabling city mayors in
specific cities to appoint some or all of the members of their
city school district governing board
or otherwise influence district governance. Such an effort was
tried in California in 2006 when
the legislature enacted the Romero Act to establish a Council of
Mayors and a Mayor’s
Partnership in Los Angeles that together transferred powers
normally possessed by the Los
Angeles Unified School District school board to Mayor Antonio
Villaraigosa. These included

appointing and removing the district superintendent and taking
control over three clusters of low-
performing schools. The Romero Act was declared
unconstitutional by a California court of
appeal because it violated Article IX, Section 16 and Section 6
of the California Constitution.
Mendoza v. State of California, 57 Cal.Rptr.3d 505 (Cal. App. 2
Dist. 2007). Section 16 grants
charter cities the right to determine whether their boards of
education are to be elected or
appointed, and the Los Angeles City Charter provides for an
elected board. There are currently
120 charter cities out of a total of 478 cities in California.
Section 6 provides that no public
school or any other part of the public school system is to be
transferred to an authority not
included in the public school system. The system encompasses
the state superintendent of public
instruction and state board of education, county superintendents
and boards of education, and
local school districts with governing boards. Mayors are not
included. Thus to empower mayors,
http://www.cde.ca.gov/

2
the constitution would have to be changed. This may be true
even for charter cities if voters were
to give the mayor authority to appoint the entire school board.
Page 28: Special Consideration in Interdistrict Transfer
Agreements for Victims of Bullying.
Education Code Section 46600 permitting two or more school
districts to enter into an
interdistrict transfer agreement has been amended effective July
1, 2012 to give priority for
attendance if the student is determined by either the resident
district or the district of proposed
enrollment to have been a victim of bullying in the resident
district. The priority request must be
made by the person having legal custody of the student.
Bullying is also to be taken into account
when districts consider developing an interdistrict transfer
agreement.
Page 28: Legislature Expands Parent Choice by Enacting Open
Enrollment Act.

As noted on this page in the book, parents have a choice of
schools within a school district,
subject to certain conditions. And they can enroll their children
in another district if that district
accepts transfers or has an interdistrict transfer agreement with
the parent’s district. To expand
interdistrict choice, the legislature enacted the Open Enrollment
Act (Education Code §§ 48350-
48361) late in 2009 providing parents of children enrolled in
low-achieving noncharter public
schools with the opportunity to attend higher performing
schools in the district of residence or in
another district (termed the “school district of enrollment”). The
act is limited to parents whose
children attend schools listed on the superintendent of public
instruction’s list of 1,000 low
performing schools. The school district of residence is required
to notify parents in the low-
achieving schools that they have these options.
The district of enrollment may deny admission because of lack
of space and lack of funds. Except
for magnet schools and schools serving gifted and talented
students, no consideration is to be

given to the student’s previous academic achievement, physical
condition, English proficiency,
family income, or such characteristics as gender, religion,
nationality, sexual orientation.
However, both the sending and receiving districts can limit or
refuse transfers if doing so would
negatively impact a court-ordered or voluntary desegregation
plan or upset the racial and ethnic
balance of the district consistent with federal and state law. If
oversubscribed, students are to be
selected randomly for available spaces, though priority is to be
given to those with siblings
already enrolled in the school and students coming from
program improvement schools ranked in
the bottom Academic Performance Index (API) decile. Parents
are to be notified within sixty days
of applying whether admission has been granted. If not, the
district of enrollment must state why.
Page 29: Parent “Trigger” Act Empowers Parents in Some Low
Performing Schools.
See update for page 87 below.
Page 30: Caps on Student Transfers under the Interdistrict
School Choice Program.

As noted on this page, the interdistrict transfer program allows
a district with fewer than 50,000
students to limit the number of students transferring out to 3
percent of its enrollment. This
percentage applies to the enrollment for the current year.
Education Code Section 48307 also
provides that the district of residence may limit the maximum
number of students transferring out
“for the duration of the interdistrict transfer program authorized
by this article to 10 percent of the
average daily attendance for that period.” The meaning of “for
that period” became a matter of
contention between the Walnut Valley Unified School District
and the Rowland Unified School
District. As a district with less than 50,000 students, Rowland
Unified asserted that it could deny
any further transfers of its students to Walnut Valley for the
2010-2011 school year because,
since the start of the interdistrict school choice program in
1995, it had reached the 10 percent
limit. The Rowland district was concerned that continued loss
of students to other districts would
diminish its per-student funding. The Walnut Valley district
argued that the term “for that period”

3
referred to the current year. The California appellate court
affirmed the trial court judge’s
rejection of the argument, noting that “for that period” pl ainly
refers to the duration of the
interdistrict choice program. The court also rejected Walnut
Valley’s assertion that the beginning
of the program should be 2004 when the choice program was
recodified and not 1995 when it
was originally enacted. The appellate judges noted Walnut
Valley remains free to accept transfers
from other districts that have not reached the 10 percent cap.
Walnut Valley Unified School
District v. Superior Court, 121 Cal. Rptr.3d 383 (Cal. App. 2
Dist. 2011).
Page 32: Statewide Charter School Option Defined.
In 2010 a California court of appeal ruled that the State Board
of Education’s (SBE) approval of
Aspire Public Schools to be a statewide charter entity was

contrary to the thrust of the charter
school law. In order for a statewide charter to be approved in
accord with Education Code Section
47605.8 (b), the court observed that SBE must find that the
entity will provide instructional
services of statewide benefit. In other words, the statewide
charter option is targeted to entities
that would serve a statewide populace. It is not to be used for a
charter organization that can
accomplish the same statewide benefit by operating each of its
schools under individual charters
approved by various school districts or county boards. Because
the SBE did not make such
findings regarding Aspire Public Schools, the matter was
returned to the trial court for further
deliberations. California School Boards Association v. State
Board of Education, 113 Cal.
Rptr.3d 550 (Cal. App. 1 Dist. 2010).
Page 36: Court Elaborates on Meaning of Comparable Facilities
for Charter Schools.
As noted on this page, school districts are required under the
Charter Schools Act to provide
facilities to in-district charter schools that are reasonably

equivalent to facilities of district schools.
Bullis Charter School, an elementary school whose charter had
been granted by the Santa Clara
County Office of Education after the Los Altos School District
twice rejected it, filed a lawsuit
against the district contending that the facilities it was offered
for the 2009-2010 school year were
not reasonably equivalent. Operating out of portable buildings
on a portion of a junior high school
in the district, the charter school alleged that the district had
violated the comparable facilities
requirement in various ways including underestimating
playground space of five comparison
group schools, overestimating the nonteaching space supplied to
Bullis, failing to consider child
care facilities available at the comparison schools, and using
arbitrary figures to calculate library
space. As a result, the charter school maintained its school site
was little more than half the size
of other elementary school sites in the district. In overturning
the trial court ruling in favor of the
district, the appellate court noted that the district was not in
compliance with State Board of
Education regulations detailing how charter facility

determinations are to be made (see Admin.
Code title 5, § 11969.1 and following sections). While
facilities offered by a district to an in-
district charter school do not need to match exactly those of
comparable district schools, the
judges pointed out that the district must make a good faith
attempt to identify and quantify the
facilities available to the comparison group of similar schools
with regard to teaching stations,
specialized classroom space, and nonteaching space. Here the
Los Altos School District had
failed to do so, and its facilities offer was void. Bullis Charter
School v. Los Altos School District,
134 Cal.Rptr.3d 133 (Cal. App. 6 Dist. 2011).
Page 40: Clarification on Regulation of Private Schools.
Some state regulations applying to private schools have
exemptions for small private schools and,
by implication, homeshooling. For example, the Education Code
provisions pertaining to
earthquake emergency procedures do not require emergency
procedures in private schools having
a capacity of less than 50 students or no more than one
classroom (see § 35296). The same is true

for fire drills (see § 32001). To determine whether there is a
similar exemption in other regulatory
provisions applying to private schools, the provisions should be
consulted directly.
4
Page 41: U.S. Supreme Court Defers to Religious Private
School’s Judgment on Who is
Classified as a Minister and Thus Not Protected by Employment
Discrimination Laws.
The U.S. Supreme Court ruled in 2012 that the “ministerial
exemption” grounded in the free
exercise clause of the First Amendment that protects religious
freedom in religious organizations
encompasses not only clergy but others who these organizations
recognize as religiously “called”
to their roles. The case involved a teacher at a Lutheran school
who had completed a course of
theological study and taught a religion class, led her students in
prayer, and took them to a weekly

school-wide chapel service. After the teacher developed a
sleeping disorder known as narcolepsy
and took disability leave, her designation as a “called” teacher
was ended and she was replaced
by a lay teacher. She contended that these actions were in
violation of the Americans with
Disabilities Act (ADA). The religious private school contended
that as a “called” teacher, she fell
within the “ministerial exemption” and thus the school had the
discretion to decide whether she
could continue to be recognized in this role and work at the
school. In its unanimous decision, the
high court agreed, noting that applying employment
discrimination laws like ADA to the
decisions of religious groups in choosing who will preach
beliefs, teach beliefs, and carry out
their missions would undercut their right to free exercise of
religion. Hosanna-Tabor Evangelical
Lutheran Church v. Equal Employment Opportunity
Commission, 132 S.Ct. 694 (2012).
CHAPTER 2
ATTENDANCE, INSTRUCTION, AND ASSESSMENT

Pages 47-48: Legislature Expands School Choice by Enacting
Open Enrollment Act.
See the update for page 28 above.
Pages 47-48: Changes in Residency Requirements.
Education Code Section 48204, which sets forth residency
requirements for school attendance,
has been extended to 2017. To determine if a student meets
residency requirements for admission,
the district can request that the parent or legal guardian show
name and address through such
documents as property tax payment receipts; rental property
contract, lease, or payment receipts;
pay stubs; voter registration; and the like. Not all are required.
Excluded from this requirement
are homeless and other students who must be admitted under
federal and state law (Education
Code § 48204.1). A student may be admitted to the district if at
least one parent or legal guardian
physically works within the boundaries of school district for a
minimum of ten hours during the
school week. The affidavit signed by caregiving adults in the
district for students living with them

is no longer limited to one year.
Page 50: Changes in Kindergarten Admission Age.
The admission dates set forth in Education Code Section 48000
have been changed so that a child
whose parents opt to send the child to kindergarten is to be
admitted at the beginning of the
school year if the child will be five years old on or before
December 2 of the 2011-12 school year,
November 1 for the 2012-13 school year, October 1 for the
2013-14 school year, and September 1
for the 2014-15 school year and beyond. Children may be
admitted on a case-by-case basis with
parent permission at any time during the school year. The
provision regarding prekindergarten
summer program admissions has been deleted. To be admitted to
the first grade, students must be
six years old on or before the same dates as noted above for
admission to kindergarten.
To receive funding for students enrolling in the first year of a
two-year transitional kindergarten
program, a school district or charter school shall ensure that for
the 2012-13 school year, a child

is to be admitted if the child’s fifth birthday is between
November 2 and December 2, for the
5
2013-14 school year the fifth birthday is between October 2 and
December 2, and for the 2014-15
school year and thereafter the fifth birthday is between
September 2 and December 2.
Transitional kindergarten means the first year of a two-year
kindergarten program that uses a
modified kindergarten curriculum that is age and
developmentally appropriate.
Page 50: Foster Children are to be Enrolled in a New School
Even if Medical Records are
not Available.
In 2011 the legislature enacted a measure specifying that if a
foster child is shifted to a new
school, that school must immediately enroll the child even if the
child is unable to provide
clothing or if immunization records are not available or are
missing (Education Code § 48853.5

(d)(7)(B)).
Page 51: No Flexibility on Physical Education Time
Requirement.
The parent of an elementary student challenged a district’s
decision to schedule no more than 120
minutes of physical education every ten school days. Education
Code Section 51210 (g) requires
a minimum of 200 minutes. The school district, backed by the
California Department of
Education, argued that the minute allotment was discretionary
in that Section 51002 recognizes
that a common curriculum may need to be modified because of
local economic, geographic,
physical, political, and social diversity. The California court of
appeal rejected the assertion,
noting that Section 51210 uses the term “shall” and is
discretionary only in allowing a district to
exceed the minimum. The appellate court also ruled that a
parent has a private right of action to
seek a mandate to compel compliance with the requirement. Doe
v. Albany Unified School
District, 118 Cal. Rptr.3d 507 (Cal. App. 3 Dist. 2010).

Changes in Truancy Law.
Education Code Section 48264.5 has been amended to lessen
somewhat the penalties placed upon
students for truancy. Now a first-time truant may be asked to
make up missed classes and,
together with the parent or legal guardian, may be requested to
meet with the school counselor or
other appropriate school official to discuss the causes of missed
attendance and develop a
remediation plan. A second truancy in the same school year may
result in a written warning by a
peace officer and the student’s assignment to an after-school or
weekend program. The school
may make a record of the truancy. A third offense within the
school year results in classification
of the student as a habitual truant, provided there has been a
conscientious effort by school
officials to hold at least one conference with the parent or
guardian. A fourth truancy in the same
year now may place the student within the jurisdiction of the
juvenile court. The thrust of these
changes is to focus more on remediation than penalization for
chronic truancy.

Local Education Agencies Required to Have a Policy
Encompassing a Range of
Prohibited Actions Including Bullying to Assure a Safe
Learning Environment.
Education Code Section 234, known as the Safe Place to Learn
Act (see page 388 in California
School Law), has been expanded to prohibit discrimination,
harassment, intimidation, and
bullying at school and school activities. Among the
characteristics that fall into this category
under Section 234.1 are disability, gender, identity, gender
expression, nationality, race or
ethnicity, religion, sexual orientation, or association with a
person or group that has one or more
of these actual or perceived characteristics. Local education
agencies are required to have a policy
prohibiting these activities and a process for receiving and
investigating complaints related to
them. The complaint process requires immediate intervention, a
time line to investigate and
resolve complaints, and an appeal process for complainants who
disagree with the resolution.
Page 56: Public School is a Public Place Where Possession of

Etching Cream or Aerosol
Paint is Prohibited in Light of Need to Eliminate Graffiti.
6
In a juvenile court proceeding, a student tried to argue that
because Reeves v. Rocklin Unified
School District discussed on this page held that schools are not
public property open to
communication by outsiders, Penal Code Section 594.1 making
it an offense to possess etching
cream or aerosol paint on public property does not apply to
schools. The California court of
appeal rejected the contention, noting that schools can be
considered public property for certain
purposes but not others. Here, the legislative goal of
eliminating graffiti from public schools is
furthered by viewing them as public places. In re Miguel H.,
103 Cal. Rptr.3d 884 (Cal. App. 2
Dist. 2010).
Page 60: Limited Liability under the Child Abuse and Neglect

Reporting Act.
Mandated child abuse reporters in a school district have a duty
under the Child Abuse and
Reporting Act to report instances of child abuse committed by
employees of that district to proper
authorities. If they fail to do so, the parents can file an action
for negligence. However, if a report
is not made and the employee moves to another district where
the employee abuses a student, the
parents of the victim of that abuse cannot seek damages against
the former employing district and
employees. A California court of appeal so ruled in 2009 in a
case involving a substitute teacher
who sexually abused students in several districts. The parents
sought damages against both the
employing district and previous districts that had employed the
teacher under this statute. P.S. v.
San Bernardino City Unified School District, 94 Cal. Rptr.3d
788 (Cal. App. 4 Dist. 2009). Note
that this does not involve the application of the California Tort
Claims Act to a situation like this.
See the discussion on pp. 456-457 of California School Law.
Page 60: Other Subjects for Which There Are Curriculum

Content Standards.
In addition to reading, writing, mathematics, history-social
science, and science, the California
Department of Education has curriculum content standards for
visual and performing arts,
physical education, and foreign languages (Education Code §§
60605.1-60605.3).
Page 60: Adoption and Implementation of the Common Core
State Standards in English
Language Arts and Mathematics.
California is one of 48 states that have worked with the Council
of Chief State School Officers
and the National Governors Association Center for Best
Practices to develop a common content
core in English language arts and mathematics. The purpose to
align states regarding the
curriculum content in these subjects so that there is a clear and
consistent K-12 progression
regarding what students are to master regardless of where they
live. The State Board of Education
(SBE) adopted the common core state standards in August 2010.
Education Code Section 60207
requires the SBE to align curriculum frameworks and evaluation
criteria with the common

content for English language arts and mathematics by May 30,
2013, and May 30, 2014,
respectively. Education Code Section 60208 requires the
Superintendent of Public Instruction
(SPI) in collaboration with others to develop professional
development activities for teachers and
administrators to be used as the common core academic
standards are implemented. The SPI is
also to report to the legislature on or before November 1, 2012
on the reauthorization of a revised
student assessment system in light of such factors as the
implementation of the common core
standards, reauthorization of NCLB, incorporating open-ended
responses, encompassing multiple
measures of student achievement, minimizing test time, and
moving toward individualized
student growth (Education Code § 60604.5). For further
information, go to
www.cde.ca.gov/ci/cc/
Page 60: Expansion of Efforts to Expand and Integrate
Academic and Career Technical
Education in the School Curriculum.

In recent years, increasing emphasis has been placed on
integrating career technical education
with traditional academic courses, given the rapid advance of
technology in all aspects of daily
http://www.cde.ca.gov/ci/cc/.l
7
life. Section 52372.5 and following sections of the Education
Code address in some detail the
value of high school career technical education (now often
labeled “multiple pathways” or
“linked learning”) in broadening the scope of education and
providing students with a full range
of post-graduation choices from postsecondary options to career
entry. In 2010 the legislature
enacted a measure promoting work-based learning that augments
existing law relating to career
technical education (Education Code § 51760 and following
sections). School districts and
community colleges that receive funding to provide career
technical education may include a
work-based learning component in these programs. Work-based

learning means an educational
approach that combines rigorous college preparatory education
with demanding career technical
education. Work-based learning offers opportunities to learn
through real-world experiences like
job shadowing, mentoring, intensive internships, real or virtual
apprenticeships, and school-based
enterprises. It may be delivered by California Partnership
Academies (see next paragraph),
regional occupational programs, and programs developed in
association with community colleges.
The legislature also has broadened the mission of California
Partnership Academies to encompass
career technical education. The academies were started to
provide combined academic and
occupational training for high school students at risk of
dropping out of school. Effective July
2011, the legislature has expanded the number of partnership
academies to encompass students
who are not at risk of dropping out of school and to encourage
the establishment of academies
addressing the needs of developing technology (Education Code
§ 54690) Occupational

education and skill development encompass California’s fifteen
different industry sectors
including computer technology, alternative energy,
environmental design and construction, and
space. Up to one-half of partnership academy enrollment now
may be those who do not meet the
criteria of at-risk students. Among the conditions for receiving
state funding, a district must
establish the partnership academy as a school-within-a-school
and assure instruction in at least
three academic subjects per school term that prepares students
for a regular high school diploma
and, where possible and appropriate, to meet the subject
requirements for admission to CSU and
UC. The legislature also has broadened the definition of
supplementary instructional materials
that are to be selected for use in public schools to encompass
relevant technology that further
engages interactive learning.
Starting 2012-2013, school districts and county offices of
education that offer career technical
education courses are to add the completion of such a course as
an option for satisfying the high

school graduation requirement of one course in visual or
performing arts or foreign language
(Education Code § 51225.3). The district or county office is to
include a list of its career
education courses that satisfy specific subject matter
requirements for admission to CSU or UC.
The California Department of Education is to submit an
evaluation of this addition to the
legislature on or before July 1, 2017.
Also starting in 2012-2013, the legislature has authorized the
establishment of a career technical
education study program to be known as the Linked Learning
Pilot Program. The State
Superintendent of Public Instruction (SPI) is to select up to
twenty applications from school
districts seeking to implement a linked learning program.
Details of the requirements to be
eligible for the pilot program are set forth in Education Code
Section 52372.7. They include
incorporating small-sized schools and smaller groupings of
students within new and existing high
schools; concurrent enrollment and dual credit with community
colleges and universities;

problem-based instructional methodologies; implementation
within the district’s existing state
and local resources; and involvement of business, labor,
parents, and community partners. The
SPI is to submit an evaluation report on the program to the
legislature and governor by September
2016 that encompasses student outcome data and
recommendations for facilitating statewide
expansion of the linked learning program.
8
Page 60: Characteristics Protected in Selection and Disposal of
Instructional Materials
Include Sexual Orientation; Social Studies to Encompass
Contributions of LGBT Persons.
Existing law was amended in 2011 to prevent discrimination
against lesbian, gay, bisexual, and
transgender persons in the selection and disposal of textbooks
and to include instruction on the
study of role and contributions of these persons as well as
persons with disabilities in social

science courses (Education Code §§ 51.204.5, 51500-51501,
60040). See also the discussion of
the anti-discrimination provisions of the Education Code
discussed on p. 440 of California
School Law.
Pages 65-66, 83: Lawsuit against State Board of Education and
Others for Requiring
English Learners to take the California Standards Test in
English Rejected.
A California court of appeal has rejected the claim by a number
of school districts that the State
Board of Education (SBE) violated the No Child Left Behind
Act (NCLB) by requiring all
English learners (ELs) to take the California Standards Test in
English. The districts asserted that
this requirement penalizes students who are not proficient in
English and the schools they attend.
But the appellate court and the trial court deferred to the
judgment of the SBE that testing EL
students in English and providing them with accommodations
such as translated directions and
flexible time comports with both Proposition 227 and NCLB.
The court of appeal pointed out that

the U.S. Department of Education approved the SBE testing
plan and a similar testing program in
Arizona. Coachella Valley Unified School District v. State, 98
Cal. Rptr.3d 9 (Cal. App. 1 Dist.
2009).
Page 71: Data from CALTIDES May Now Be Used for Teacher
Evaluation, Though
Subject to Union Negotiation.
The legislature has lifted the prohibition against using
CALTIDES data alone or in conjunction
with student assessment data under CALPADS (discussed on p.
85) under the California
Education Information System for pay, promotion, sanction, or
personnel evaluation of individual
teachers or groups of teachers. However, under Education Code
Section 10601.6, the matter is
bargainable. This change was part of a series of bills that were
enacted late in 2009 to position
California for eligibility to compete with other states for federal
funding under the Race to the
Top Fund (see especially Education Code Section 53100 and
following sections relating to

identifying and improving the persistently lowest-achieving
schools in the state). Education Code
Section 10601.5 (d) specifies that CALTIDES must conform to
federal and state law protecting
individual rights to privacy and confidentiality of individual
personal information. Through a
series of related measures, the legislature seeks development of
a reliable individualized student
performance tracking system
Pages 79-80: Disciplining Students for Misuse of Their Own
Electronic Communication
Devices Off Campus.
See the updates for page 228 and page 338 below.
Pages 80-81: Protecting Student Privacy When Districts
Contract for Computing Services.
As noted on p. 63, a California appellate court ruled some years
ago that students should not have
to view advertisements in commercial videos. That same
concern is growing now that schools are
increasingly contracting with commercial entities to provide
software applications via the Internet
for educational and communication purposes. Commercial

vendors often mine the data to develop
targeted advertising aimed at students. Education Code Section
35182.5 (c)(3) prohibits school
districts from entering into contracts for electronic services or
products that requires
dissemination of advertising to students unless the districts does
so at a public hearing, finds that
the electronic product or service is essential for education, finds
that the district cannot otherwise
9
afford the product or service, provides written notice to parents
that advertising will be used in
the classroom or learning center, and offers parents the
opportunity to request in writing that their
child not be exposed to advertising. This area of the law is
likely to change as more and more
advertising based on personal information accessible to the
service provider is directed to
students who use the school’s software to access the Internet.

In 2014 Online Learning Can Be Counted in Average
Daily Attendance.
Starting in the 2014-2015 school year, school districts and
county offices of education can
include synchronous online instruction in computing average
daily attendance for students in
grades nine through twelve (Education Code § 46300.8).
"Synchronous online instruction" means
a class or course in which the student and teacher are online at
the same time and use real-time
Internet-based collaborative software that combines audio,
video, file sharing, and other forms of
interaction. Instruction must be delivered by a certificated
teacher, the teacher must confirm
student attendance through visual recognition, and the student
must attend for the entire class.
Enrollment cannot be denied because a student does not have
access to computer hardware or
software. The teacher-student ratio for synchronous online
classes remains the same as for all
other educational programs unless negotiated otherwise in a
collective bargaining agreement. The
state superintendent of public instruction is to establish rules
and regulations for the

implementation of this statute.
Pages 82-91: State Waivers Now Available for Portions of No
Child Left Behind Act
(NCLB).
Congress’s reluctance to reauthorize NCLB has prompted the
Obama administration to allow
waivers of some provisions of the act. These include removing
the 2014 deadline for all students
to be proficient on state math and reading/language tests,
though states are still required to
administer the tests in grades 3-8 and once in high school. They
also are required to continue
reporting the performance of student subgroups. States can reset
the bar for acceptable yearly
progress (AYP) for every school and student subgroup and need
not take corrective action of
Title I low-performing schools failing to make AYP for two
consecutive years. But states still are
required to set ambitious, achievable goals to improve student
and school performance. States and
school districts also are given more flexibility in using Title I
and Title II funds. In order to
receive a waiver, states must have adopted college- and career-

ready standards for all students
tied to state tests, developed a differentiated accountability
system targeting 15 percent of the
state’s most troubled schools based on student growth targets,
and must set basic guidelines for
teacher and principal evaluation that are linked to student
achievement. For more information
about the changes, go to www.ed.gov/esea/flexibility.
California is in the process of submitting a
waiver.
Page 86: Students with Disabilities Not Required to Pass
CAHSEE.
The legislature has enacted a law providing that starting in the
2009-10 school year, eligible
students with disabilities are not required to pass CAHSEE as a
condition of receiving a diploma
or graduating from high school. The exemption will last until
the state board develops alternative
means of assessment for these students or determines such
means are not feasible. The statute
also provides that a school may not adopt an IEP for the sole
purpose of exempting the student
from the CAHSEE requirement unless consistent with federal

law. Students with disabilities are
still required to take CAHSEE in grade 10 for the purpose of
complying with the No Child Left
Behind Act (Education Code § 60852.3).
Page 87: Parent “Trigger” Act Slightly Expands School
Accountability.
As part of its unsuccessful effort to obtain “Race to the Top”
federal funds in 2010, the California
Legislature enacted the Parent Empowerment Act to be found in
Education Code Sections 53300-
http://www.ed.gov/esea/flexibility
10
53302. The law applies no more than 75 Title I traditional
public and charter schools that are not
necessarily identified as among the consistently lowest-
achieving Title I schools under NCLB.
The schools subject to the so-called “Parent Trigger” are those
that after one school year remain
subject to corrective action under NCLB, continue to fail to
make adequate yearly progress, and

have an academic performance index score of less than 800
under the California school
assessment system. The 800 score is the statewide performance
target. The “trigger” provision
provides that if at least one-half of the parents/legal guardians
of students attending the school, or
in combination with at least one-half of those whose children in
elementary or middle schools
will move on to the school, request the school district to
implement one of four interventions
including restructuring or closure, the district must do so unless
at a regularly scheduled public
hearing the district describes in writing why the option cannot
be implemented and instead
describes what other options it will implement in the subsequent
school year that are consistent
with NCLB.
Page 88: Components of Academic Performance Index
Expanded.
Effective January 2013, the SPI with approval of the SBE also
may incorporate grade level
promotion rates in the API for secondary schools, as well as
measures of student preparedness for

postsecondary education and careers. Similarly, the SPI with
SBE approval and available funding
may develop a program for local panels to visit schools,
observer teachers, interview students,
and examine student work. Through these varied assessment
approaches, more than just test
scores are linked to school accountability. Given the varied
components of the Academic
Performance Index, the SPI is required to provide local
education agencies and the general public
an easily understandable explanation of the API components and
their relative values.
CHAPTER 3
EQUITY, ADEQUACY, AND SCHOOL FINANCE
Page 113: State’s Practice of Providing Only Nominal Funding
to School Districts for New
Programs Violates State Constitution.
As noted on this page, when the legislature requires school
districts to implement a new program
or higher level of service, the state constitution prohibits
imposing the cost on the school districts.

Because of the state’s budget shortfalls in recent years, the
legislature has provided only nominal
funding for new programs, deferring remaining payments to the
future. In one year, for example,
the legislature provided $1,000 for each of thirty-eight
mandated programs with a total cost
estimate of over $160 million. A California court of appeal
ruled has ruled that this “credit card”
approach is unconstitutional. However, the judges also r uled
that the judiciary is without
authority to compel the legislature to provide the funding.
Rather, the remedy is set forth in
Government Code Section 17555 and following sections. These
sections state that if the
legislature provides only nominal funding or no funding for
mandated programs, school districts
either are relieved from having to implement the programs
under certain circumstances (see Govt.
Code § 17581.5) or must seek judicial relief from having to do
so (see Govt. Code § 17612 (c)).
California School Boards Association v. State of California, 121
Cal. Rptr.3d 696 (Cal. App. 4
Dist. 2011).

Student Fees for Extracurricular Activities Are Not
Permissible.
Newspaper stories have surfaced recently over school distric ts
charging student fees for
cheerleading outfits, instruments and uniforms for band
participation, and the like as a source of
revenue to help support these programs. The charging of such
fees is impermissible. The
California Supreme Court ruled back in 1984 that all
educational programs including
extracurricular and athletic activities fall within the right to a
free public education under Article
IX, Section 5 of the state constitution. Thus, once offered, an
extracurricular or athletic activity
11
must be provided free of charge. Hartzell v. Connell, 201 Cal.
Rptr. 601. The constitutional
provision specifies that “The Legislature shall provide for a
system of common schools by which
a free school shall be kept up and supported in each district….”
Following up on this right,

Section 350 of Title 5 of the California Administrative Code
states “A pupil enrolled in a school
shall not be required to pay any fee, deposit, or other charge not
specifically authorized by law.”
The high court later ruled that bus transportation is not included
within the right to a free public
education because it is not an educational activity. Arcadia
Unified School District v. State
Department of Education, 5 Cal. Rptr.2d 545 (Cal. 1992).
Accordingly, Education Code Section
39807.5 states that a school district governing board may
require parents and guardians to pay a
portion of the cost of transportation to and from school.
However, other provisions of the
Education Code provide state reimbursement for school bus
transportation. While fees may be
involved in field trips and excursions, Education Code Section
35330 (b)(1) provides that no
student is to be prevented from participating because of lack of
funds. Similarly, Section 35183
provides that if a school district has a uniform dress code,
resources must be provided for
economically disadvantaged students. Driver training is
educational, and therefore student fees

cannot be charged. California Association for Safety Education
v. Brown, 36 Cal. Rptr.2d 404
(Cal. App. 6 Dist. 1994).
Page 127: New School Finance Lawsuits Filed.
In May 2010, a group of school districts, parents, students,
professional associations, and
advocacy groups filed two lawsuits in Alameda County Superior
Court against the state claiming
that the existing school finance system violates the state
constitution. The basis of Robles-Wong
v. California and Campaign for Quality Education v. California
is essentially that the state
has set academic standards but has not provided the means to
achieve them. The consolidated
cases are now on appeal on procedural grounds.
CHAPTER 4
UNIONS AND COLLECTIVE BARGAINING
Page 142: Grant Funds to Provide Additional Compensation to
Math, Science, and Special
Education Teachers Negotiable.

Education Code Section 41530 has been amended to permit
professional development grant funds
to be used to provide additional compensation to new and
existing math, science, and special
education teachers in low performing schools. Because doing so
is an exception to the uniform
salary schedule, the matter must be negotiated.
Page 154: Recent Applications of the Round Valley Decision.
Rather than pursue an unfair labor practice claim with the
Public Employment Relations Board
(PERB), the Sunnyvale Education Association filed a grievance
alleging that the nonreelection of
a member’s probationary contract was triggered by his
involvement in associational activities.
The matter was submitted to arbitration under the collective
bargaining agreement. The arbitrator
decided in favor of the association and ordered the teacher
reinstated. The school district
contended that the arbitrator did not have the authority to order
reinstatement. The trial court
agreed, citing the Round Valley decision discussed on this page,
and the union appealed. The
court of appeal affirmed the decision, noting that contract

nonreelection is not subject to the
collective bargaining process and thus the arbitrator had no
jurisdiction over the matter. The
appropriate remedy is through an unfair practice claim filed
with PERB. Sunnyvale Unified
School District v. Jacobs, 89 Cal. Rptr.3d 546 (Cal. App. 6 Dist.
2009).
The California Supreme Court relied upon its Round Valley
decision to rule in 2012 that
provisions in a collective bargaining agreement relating to the
conversion of a public school to a
12
conversion charter school are not arbitrable if they conflict with
the Education Code. The case
involved provisions in the collective bargaining contract
between the United Teachers of Los
Angeles and the Los Angeles school district that the union
argued were not followed, such as
providing the complete charter to employees and giving them
and the union time to review it.

Because it was not clear whether these provisions actually
conflicted with Education Code
Section 47611.5, which states that the approval or denial of a
charter petition is not to be
controlled by collective bargaining agreements, the high court
sent the case back to the trial court
for further deliberations. United Teachers of Los Angeles v.
Los Angeles Unified School District,
142 Cal. Rptr.3d 850 (Cal. 2012).
Page 155: San Leandro Mailbox Decision Affirmed by
California Supreme Court.
The California Supreme Court unanimously upheld the court of
appeal decision discussed on this
page, incorporating much of that court’s decision as its own.
The high court emphasized the
narrowness of its ruling by noting that the school could open up
its mailboxes for political
endorsement literature as long as done on an equitable basis.
And it noted that its ruling does not
restrict a recognized union from using the school mailboxes to
urge members to become involved
in elections and from engaging in public policy discussion in
more general terms rather than

engage in one-sided political endorsements. San Leandro
Teachers Association v. Governing
Board of San Leandro Unified School District, 95 Cal. Rptr.3d
164 (Cal. 2009).
Page 158: Nonunion Members Are Entitled to a Second Hudson
Notice When Agency Fees
Increase During the Year; this Notice Must be an Opt-In and not
an Opt-Out.
In a case involving a California union, the U.S. Supreme Court
ruled seven-to-two in 2012 that
public sector unions must send nonmember agency feepayers a
second Hudson notice in addition
to an annual fee notice when adopting a temporary, mid-term
fee increase beyond what was
projected for that year. This a necessary to avoid violating
nonmember First Amendment rights
by making them contribute to political causes to which they
object. Giving them a later option to
seek a rebate crosses the limits of the First Amendment. Five
members of the Court went further
to rule that, rather than sending out the notice giving
nonmembers the right to opt out of the
special fee, the notice must require that nonmembers

affirmatively opt in. The effect is to make it
harder for unions to secure nonmember support. The four
dissenters viewed this as judicial
overreaching, because it could apply not to just special
assessments but to regular annual agency
fees as well. Knox v. Service Employees International Union,
Local 1000, 132 S.Ct. 2277 (2012).
Page 160: Charter School Violated the Educational Employment
Relations Act by Firing
Teachers for Writing a Letter Critical of the School’s Change in
Governance Because the
Role of Teachers in Charter Schools Is Different.
As noted on this page, the organizational rights of charter
school teachers are complicated by
their involvement in running the school. This was clearly
evident in a dispute over the contract
termination of three teachers by the Journey Charter School in
the Capistrano Unified School
District. Journey is modeled on the Waldorf method of
education that, among other things,
encompasses a collaborative governance structure involving
teachers, parents, and administrators.
In this case, two of the three teachers were members of the

school’s governing council. When
complaints arose about the way the school was being operated,
the two teachers were removed for
a time as council members, an act that created dissension among
other teachers and the parent
community. Later, one of the teachers contacted the California
Teachers Association (CTA).
In July of 2006, all of the Journey teachers met to draft and sign
a letter to the parents of Journey
students regarding challenges the school faced and the school’s
departure from the collaborative
governance model. A month later, the teachers voted to become
affiliated with CTA. The non-
13
teacher members of the charter school’s governing council then
voted not to renew the three
teacher contracts. CTA filed an unfair labor practice with PERB
against the school claiming that
the teachers were fired because of their involvement with CTA
and in retaliation for writing the

July letter. The administrative law judge to whom the case was
assigned decided in favor of CTA.
However, PERB reversed that decision in a two-to-one decision.
PERB concluded that there was
no credible evidence that the teachers had been fired because of
involvement with CTA and that
the letter the teachers had written was not a protected act under
EERA because it did not deal
with the interests of the teachers as employees.
The California court of appeal reversed the PERB decision,
noting that PERB had not considered
the unique role of the teachers in Journey Charter School. The
appellate court pointed out that in
response to the letter the teachers had written, the parent-
dominated council required all official
communications with parents to be approved by the council.
This was retaliatory in that it
affected the role of teachers as employees in the charter school
setting where they played a role in
collaborative governance. “Even assuming that complaints
about the management structure of a
school might not be viewed as addressing ‘the teachers’
interests as employees’ in a traditional

public school,” the judges observed, “it is difficult to conclude
they do not do so in this case – or
perhaps in any case involving a charter school” (p. 1089,
emphasis in original). Furthermore, the
court pointed out that only these three teachers were fired
because the council believed them to be
the organizers of the other teachers. Thus, the letter was
protected conduct under EERA. Given its
decision on the July letter, the appellate court did not reach the
contention that the three teachers
were fired because of their efforts to unionize with CTA. Noting
that the teacher contracts were
terminated in violation of EERA, the court sent the case back to
PERB for a disposition
consistent with the court’s opinion. California Teachers
Association v. Public Employee
Relations Board, 87 Cal. Rptr.3d 530 (Cal. App. 4 Dist. 2009).
What is noteworthy about this
decision is that it takes into consideration the different role of
teachers in the operation of most
charter schools.
CHAPTER 5

EMPLOYMENT
Page 173: Court Denies Teacher’s Bid for Permanent Status and
Approves Year-to-Year
Hiring of Teacher as Temporary Employee.
Dawn McIntyre worked for the Sonoma Valley Unified School
District for the 2006-2007, 2007-
2008, and 2009-2010 school years. During the 2006-2007 school
year Dawn taught a fifth grade
general education classroom as a long-term temporary employee
and was non-reelected on March
15, 2007. In May of 2007, Dawn was rehired as a long-term
temporary employee for the next
school year and taught a third grade general education
classroom for the 2007-2008 school year.
On March 13, 2008, Dawn was once again non-reelected only to
be rehired in another long-term
temporary employee position in May of 2008 for the
forthcoming 2008-09 school year. Dawn
taught a second/third grade general education class during the
2008-2009 school year and was
informed in October of 2008 that the board had approved a
change in her employment status from
temporary to second-year probationary employee. On page 173

we discuss Education Code
Section 44918 (a) which provides for retroactive probationary
credit for time served as a
temporary employee when the individual is employed as a
probationary teacher the following
school year. On March 12, 2009, Dawn was informed by the
board that she was non-reelected.
Recall that as we discuss on pages 179-180, a teacher must
serve in a probationary classification
for two years before attaining permanent classification.
Dawn challenged the decision of the board and advanced a
number of legal theories to support
her position that she attained permanent status as of March 15,
2008. Dawn first argued that she
14
could not be classified as a temporary employee because the
district was operating in violation of
Education Code Section 44920 by employing more temporary
than permanent teachers. Section

44920 states that the employment of temporary employees shall
be based on the need for
additional certificated employees because certificated
employees are on leave. Dawn submitted
evidence supporting her position that the district had violated
Section 44920 by employing more
temporary than permanent employees during the school years at
issue. The district, however,
effectively countered the evidence by demonstrating to the court
that the district maintained an
appropriate balance between temporary and permanent
employees. Dawn next argued that the
district’s cycle of hiring, non-reelecting, and rehiring her as a
temporary employee was contrary
to those portions of the Education Code governing the
employment of teachers. The court
rejected this argument and held that there is nothing in the
Education Code to forbid such a
practice as long as the district complies with the pertinent
requirements of the Education Code
including designation of the employee as temporary and timely
notice of non-reelection. Finally,
Dawn argued that the district had erred in its classification of
her employment status. The court

determined that Don was a temporary employee for the 2006-
2007 and 2007-2008 school years
and that while she was a second-year probationary employee for
the 2008-2009 school year the
district timely exercised its rights to non-reelect Dawn.
McIntyre v. Sonoma Valley Unified
School District, 141 Cal. Rptr.3d 540 (Cal. App. 4 Dist. 2012).
Page 175: Court Interprets Section 44909 to Only Permit
Districts to Classify
Employees as Temporary if Employees are Hired for the Term
of the Categorically
Funded Project and Terminated at Expiration of Project.
The lawsuit was initiated by the Stockton Teachers Association
CTA/NEA against the Stockton
Unified School District on behalf of nine Association members
who were laid off by the District
at the end of the 2008-2009 school year. The nine members
were hired pursuant to Education
Code Section 44909, which we discuss on pages 174-175.
Section 44909 governs the hiring and
classification of certificated employees in categorically funded
programs. The Association argued
that the nine members were improperly classified by the district
as temporary employees and

should have been classified as probationary employees. The
Association also argued in the
alternative that even if the nine members were temporary
employees, the district’s layoff notices
were invalid because the district provided notice to the members
as though they were
probationary employees.
The nine Association members were hired by the district in July
of 2008 under Section 44909
pursuant to written contracts which identified their status as
temporary employees and an
employment termination date of May 2009. In March of 2009,
the district’s board adopted a
resolution to reduce or eliminate particular kinds of certificated
services (PKS) under Section
44955. We discuss PKS layoffs on pages 191-192. The
Association’s attorney informed the
district that the nine members may not be properly classified as
temporary, so the district as a
precautionary measure notified the members of the PKS layoff.
The members were informed that
if they believed they were not temporary employees then they
could request a hearing related to

the PKS layoff. As we discuss on page 174, a temporary
employee is not entitled to such a
hearing and only entitled to receive notice of non-reelection.
The nine members requested a
hearing and the administrative law judge (ALJ) approved the
district’s request to lay the members
off over the objection of the Association, which contended that
the employees were temporary
and therefore not subject to the layoff process.
The Association challenged the ALJ’s decision at the trial court
level and the trial court sided
with the district. The Association appealed the decision of the
ALJ and the court of appeal agreed
with the Association’s position that the members were
probationary rather than temporary
15
employees. The appellate court ruled that “A person employed
under section 44909 is to be
treated like a temporary employee, provided the person is

employed for the duration of the
contract with a public or private agency or categorically funded
project” (p. 68). The court
reasoned that because there was no evidence that the nine
members were hired for categorical
programs or terminated at the end of those programs, the
members were probationary rather than
temporary employees. Stockton Teachers Association CTA/NEA
v. Stockton Unified School
District, 139 Cal. Rptr.3d 55 (Cal. App. 4 Dist. 2012).
Page 183: District Satisfied Notice Requirement for Non-
Reelection by Sending Letter to
Teacher’s Address and Providing Oral Notice of Non-
Reelection.
Michael Sullivan was a probationary teacher for the 2006-07
school year and was reemployed for
the 2007-08 school year. On March 10, 2008, the school
district’s director of human resources
met with Michael and informed him that he would not be
reelected for the next school year.
Michael called in sick for work on March 11, 12, and 14, 2008,
and attended a board meeting on
March 13, 2008, in which a friend spoke on his behalf to urge

the board to reconsider and reelect
him. Michael did not remain at the board meeting to hear the
board’s decision. A written notice of
non-reelection was received at his address on March 15, 2008,
and was signed for by an
individual at the address. Michael was not at his address on
March 15, 2008, and returned home
on March 16, and read the letter. He argued that his non-
reelection was invalid because he did not
receive the written notice required by Education Code Section
44929.21(b). The court rejected
the argument and held that Michael evaded service of the non-
reelection letter and furthermore
already had actual knowledge of his non-reelection prior to
March 15, 2008. Sullivan v. Centinela
Valley Union High School District, 122 Cal. Rptr.3d 871 (Cal.
App. 4 Dist. 2011).
Page 183: Court Decision Addresses Mid-Year Dismissal of
Probationary Teacher.
Sarah Achene was a first year probationary teacher employed by
the Pierce Joint Unified School
District. After two formal evaluations she was notified in
December that she was being

terminated effective January 10 for unsatisfactory performance.
Sarah challenged the dismissal on
the grounds that the district did not give her a 90-day notice of
unsatisfactory performance
pursuant to Education Code Section 44938. Section 44938
governs charges of unprofessional
conduct or unsatisfactory performance and is typically invoked
in regard to permanent certified
employees. Education Code Section 44948.3, which is di scussed
on page 184, identifies the
notice requirements for dismissal of probationary certified
employees. The court, however,
agreed with Sarah’s argument and held that section 44938
requires that a probationary teacher
receive 90-day notice of unsatisfactory performance, including
notice that a failure to improve
will result in termination, before termination. Achene v. Pierce
Joint Unified School District, 97
Cal. Rptr.3d 899 (Cal. App. 4 Dist. 2009).
Page 187: Teacher’s Posting of Internet Advertisement
Soliciting Sex Which Included
Graphic Pictures of Teacher Constituted Evident Unfitness to
Serve.

Frank Lampedusa was a tenured teacher in the San Diego
Unified School District and was
promoted to the position of dean of students at his local school
site in which he handled
disciplinary issues. He did a good job and was considered a
potential candidate for vice principal.
In June of 2008 a District police dispatcher received an
anonymous call saying that he had been
informed by a friend that the dean of students at his child’s
school had an advertisement on
Craigslist’s “men seeking men” page soliciting sex. The caller
walked the dispatcher through the
process of locating the page. The page was explicit, contained
pictures of Lampedusa’s anus and
genitalia, and communicated his desire to connect with other
men for the purpose of having sex.
Lampedusa was thereafter told by his principal to remove the
listing, and he did. On July 17,
2008, Lampedusa was placed on administrative leave, and on
November 10, 2008, he was served
with notice of suspension and dismissal charges. He challenged
the dismissal before the
http://www.westlaw.com/Find/Default.wl?rs=dfa1.0&vr=2.0&D
B=1000205&DocName=CAEDS44909&FindType=L

16
Commission on Professional Competence and prevailed. The
Commission determined that
because no students had seen the pictures the posting had not
interfered with Lampedusa’s ability
to serve as a role model and teach. The school district appealed
the Commission’s decision and
prevailed. The court noted that contrary to the Commission’s
findings, a student and parent had
seen the advertisement and this did have an adverse impact on
students because of the graphic
nature of the advertisement. The court also noted that
Lampedusa attempted to shift the blame for
his actions on parents and students by noting that they should
not be accessing the advertisement.
The court also took issue with his testimony before the
Commission that he would post additional
advertisement in the future but take care to censor the pictures
more effectively. The court
concluded that the graphic nature of the conduct in combination
with Lampedusa’s failure to

accept responsibility for his actions demonstrated an evident
unfitness to teach and also
constituted immoral conduct. San Diego Unified School
District v. Commission on Professional
Competence, 124 Cal. Rptr.3d 320 (Cal. App. 4 Dist. 2011).
Page 191: Teacher Entitled to Ruling that He Not Be Dismissed
and to Reasonable
Attorneys’ Fees and Costs Where District Dismissed
Termination Case Prior to Hearing.
David Boliou commenced employment with the Stockton
Unified School District in 1990 as a
mathematics teacher. In November of 2008 one of his students
alleged that Boliou had covered
her mouth with duct tape as punishment for excessive talking.
In February of 2009 the District
filed dismissal charges against Boliou on multiple grounds
including immoral or unprofessional
conduct and evident unfitness for service.
Prior to the commencement of the hearing, the administrative
law judge (ALJ) considered a
motion by Boliou for dismissal of the unprofessional conduct
charge and ruled in Boliou’s favor

because the district failed to provide Boliou with sufficient
advance notice of the charge. The
district unsuccessfully challenged the ALJ’s ruling and elected
to file amended dismissal charges
(i.e., without the unprofessional conduct claim) against Boliou.
Shortly before the hearing on the
amended charges proceeded, however, the district withdrew its
request for hearing against Boliou,
thereby terminating the dismissal proceedings.
Even though Boliou was no longer defending dismissal charges,
he argued that he was entitled to
recover reasonable attorneys’ fees and costs related to his
defense of the recently withdrawn
dismissal charges and initiated litigation in state court to
recover attorneys’ fees and costs against
the district. Education Code Section 44944 (e)(2) requires a
school district to pay the reasonable
attorneys’ fees of the employee if the Commission on
Professional Competence determines that
the employee should not be dismissed or suspended. The trial
court agreed with Boliou and
ordered the district to pay attorney fees of $114,465, costs of
$9,976.41, and any applicable post-

judgment fees.
The district appealed the trial court’s order. The appellate court
upheld the trial court’s order by
focusing on Education Code Section 44943, which provides that
a governing board has the
following two options when an employee who has been served
with dismissal charges requests a
hearing: rescind the hearing or schedule a hearing. The
appellate court interpreted Section 44943
such that, “Once Boliou demanded a hearing and the governing
board opted to schedule the
hearing, the comprehensive statutory scheme provided no
mechanism by which the board could
unilaterally prevent that hearing from going forward by
thereafter rescinding the charges against
Boliou” (pp. 193-194). The unique statutory construction of the
certified dismissal process in the
Education Code therefore barred the district from dismissing its
hearing request without
consequence once the district elected to proceed with the
hearing. Boliou v. Stockton Unified
School District, 143 Cal. Rptr.3d 189 (Cal. App. 4 Dist. 2012).

17
Pages 191-193: Increased Focus on Layoff of Probationary and
Permanent Contract
Teachers for Economic Reasons.
Enrollment declines and financial hard times have resulted in
more attention to employee layoffs.
Here, we elaborate a bit on layoffs generally and discuss layoffs
triggered by budget act/revenue
limits. If the issue is not addressed in the collective bargaining
contract, Education Code Section
44955 and related sections control. As discussed on p. 191,
Section 44955 governs layoff of
probationary and permanent contract employees for decline in
enrollment or modification of
curriculum. A key provision provides that layoffs must be by
seniority, meaning that probationary
employees are laid off before permanent employees. If
employees have the same seniority, who
gets laid off is determined by the needs of the district and its
students. Notice of contract

termination under section 44955 must be given before May 15.
Also note that under Section
44949, an employee is to be notified by March 15 that the
superintendent or designee has
recommended to the governing board that the employee’s
services will not be needed for the
reasons set forth in Section 44955. This is often referred to as
“receiving a pink slip.” Employees
receiving such notice then have seven days to request a formal
hearing conducted by an
administrative law judge. If such notice and opportunity for a
hearing is not given, the employee
is reemployed for the next school year (Education Code § 44955
(c)).
Education Code Section 44955.5 governs layoffs for insufficient
increase in revenue limit
funding per average daily attendance (not increased at least 2
percent for the fiscal year). The
time frame for a district making this determination is between
five days after the enactment of the
Budget Act and August 15 of the fiscal year to which the
Budget Act applies. Contract
terminations of probationary and permanent certificated

employees under this provision follow
the provisions of Section 44955 except that the schedule of
notice and hearing are as adopted by
the governing board. However, this section is inoperative from
July 1, 2011 to July 1, 2012.
In the event of a tie when determining seniority for a layoff, the
governing board makes the
decision based on district and enrollment needs. As we discuss
on p. 192, Section 44955 provide
two exceptions to seniority: (1) a specific need for personnel to
teach a course for which the
teacher has training and experience that more senior teachers do
not and (2) compliance with the
constitutional requirement of equal protection of the law. The
equal protection issue has surfaced
in past litigation and once again is the focus of layoffs pursuant
to seniority (last in, first out or
what is termed “LIFO”) that have a disproportionate impact on
schools serving high percentages
of low-income students in urban areas. A seminal lawsuit from
the past is the California Supreme
Court’s decision in Butt v. State of California, 15 Cal. Rptr.2d
480 (Cal. 1992). That case

involved the closing of schools in the Richmond Unified School
District six weeks before the end
of the school year because the district had run out of money.
The California high court ruled that
the closing deprived the students of basic educational equality
and the state has an obligation to
prevent a district’s budgetary problems from denying them that
equality.
In February 2011 a superior court judge in Los Angeles
affirmed a consent agreement negotiated
by the Los Angeles Unified School District in response to suits
by students through their parents
over disproportionate layoffs at three inner city schools. The
students argued that the
disproportionate layoffs at these schools would undercut efforts
to provide an equal educational
opportunity for them. The judge agreed with the plaintiffs,
noting that a collective bargaining
contract cannot override the constitutional principle of equal
protection of the laws implicitly
embedded in Education Code Section 44955 (d). The judge
approved the expansion of the
seniority-based layoff exemption to up to 45 schools in the
district. The decision, however, was

struck down on procedural grounds and the matter returned to
the trial court for further
proceedings. Reed v. United Teachers Los Angeles, 145 Cal.
18
As noted on p. 184 of this chapter, probationary teachers are not
entitled to a hearing when their
contracts are not extended. However, when this occurs for
financial reasons pursuant to these
provisions of the Education Code, they are entitled to one. This
was made clear in a 1994 ruling
of a California court of appeal. In this case, Susan Cousins, a
probationary employee in the
Weaverville Elementary School District, was given a notice of
nonreelection under Section
44929.21. That section requires notice but no hearing. In a letter
to Susan, the principal stated that
the termination was for economic reasons, not teaching
performance. Susan filed a lawsuit,

arguing that she was entitled to a hearing to challenge the layoff
under Education Code Section
44949 as provided by Section 44955. The appellate judges
agreed, noting that Section 44955
provides an exception to the general rule that probationary
teachers are not entitled to a hearing
when their contracts are not extended. Cousins v. Weaverville
Elementary School District, 30 Cal.
Page 196: Education Code Section 45308 Amended to Require
Reemployment of Classified
Employees Laid Off in Order of Seniority.
Assembly Bill 1269 amended Section 45308 to require
reemployment of laid off classified
employees in order of seniority. Section 45308 previously
provided for reemployment in the
reverse order of the layoff.
Page 199: District Practice of Running Classified Employees’
Vacation Leave Concurrently
with Extended Sick Leave Invalidated By Court.

A school bus driver, Donna Hayes, was absent for seventy-three
days of work from the Colton
Joint Unified School District due to a knee injury. Donna was
working under a collective
bargaining agreement which specifically provided that extended
sick leave consisted of 100 days
of sick leave paid at 50 percent of the employee’s regular
salary. Absent this specification in a
collective bargaining agreement, a school district’s employees
are only entitled to the five-month
differential leave discussed on page 200. In regard to the 100-
day leave, Education Code Section
45196 states that such leave “shall be exclusive of any other
paid leave, holidays, vacation, or
compensating time to which the employee may be entitled.”
During Donna’s absence, the district
deducted both sick and vacation leave to which she was entitled
under Education Code Sections
45197 and 45191, respectively. The California School
Employees Association (CSEA)
challenged the district’s decision to deduct sick and vacation
leave, and the court agreed with the
CSEA. The court held that Education Code Section 45196, by
its plain language and legislative

history, exempts the deduction of sick and vacation leave for an
employee on leave under this
section. California School Employees Association v. Colton
Joint Unified School District, 88 Cal.
Rptr.3d 486 (Cal. App. 4
Dist. 2009.)
Page 202: ADA Amendments Act Increases Coverage for
Employees.
Effective January 1, 2009, the Americans with Disabilities Act
(ADA) Amendments of 2008
significantly amended federal disability law. One of the key
changes brought about by ADAAA,
which is discussed on page 204, is that except for ordinary
eyeglasses or contact lenses,
ameliorative measures cannot be considered in determining if an
impairment substantially limits a
major life activity. Other changes include expansion of what
constitutes a major life activity to
include general activities (e.g., working, lifting, bending) and
impairments of major bodily
functions (e.g., immune neurological, circulatory, and
reproductive systems). An individual may
also be considered disabled even if his or her impairment limits

a major life activity only
episodically or is in remission. The ADA Amendments Act of
2008 also permits an individual to
pursue a “regarded as” claim (see page 203) if an adverse
employment action occurs because he
or she has an actual impairment or is perceived as having an
actual impairment. Finally, the
ADA Amendments Act clarifies that it is the intent of the law to
broaden the scope of coverage
19
for individuals under the law.
Page 202: Anti-Retaliation Provisions of Section 504 and the
American with Disabilities Act
Apply to Non-Disabled Persons Who Speak Out to Protect
Rights of Disabled.
Susan Barker, a resource specialist program teacher in the
Riverside County Office of Education,
voiced concerns to her supervisors that the county office was
not in compliance with federal and

state special education law regarding children with disabilities
and filed a class discrimination
complaint with the U.S. Office for Civil Rights (OCR) to this
effect. After doing so, she alleged
that her supervisors retaliated against her in various ways
before terminating her employment.
She lodged a complaint with OCR, which conducted an
investigation. After OCR decided in her
favor, Susan filed a federal lawsuit contending that the county
office had violated the anti-
retaliation provisions of both Section 504 of the 1973
Rehabilitation Act and Title II of the
Americans with Disabilities Act. The county office countered
that the teacher did not have
standing to sue under these statutes, because she was not a
person with a disability. The trial court
agreed with the county office, but the U.S. Court of Appeals for
the Ninth Circuit reversed that
decision. The anti-discrimination provisions of both statutes,
the appellate court noted, are not
limited just to persons with disabilities. Rather they apply to
discrimination against “any person”
or “any individual.” The court noted that OCR had so concluded
after completing its investigation.

Thus, Susan had standing to bring the lawsuit against the county
office. The case was returned to
the trial court for further proceedings. Barker v. Riverside
County Office of Education, 584 F.3d
821 (9th Cir. 2009).
CHAPTER 6
RIGHTS OF EXPRESSION
Page 210: No Retaliation When School Board Removed Fellow
Board Member from Vice
President Position.
The U.S. Court of Appeals for the Ninth Circuit has ruled that
the First Amendment does not
protect a school board member who is removed as vice president
by other board members
because of his criticisms of the school superintendent. The
board member continued to serve on
the board and could continue to speak out. The appellate judges
observed that the board members
themselves were exercising First Amendment rights when they
made the decision. Such action is
typical of the give-and-take of political bodies and does not
violate the First Amendment. Blair v.

Bethel School District, 608 F.3d 540 (9th Cir. 2010).
Page 215: Job Descriptions Cannot Be So Encompassing That
They Deny School Employees
the Right to Speak Out on Public Issues as Citizens.
An Idaho school security employee wrote a letter at home to his
school administrators expressing
concerns about the lack of adequate security measures on
campus. When his position was
eliminated, he filed a lawsuit against the principal and the
district claiming retaliation for
exercising free speech. The trial court dismissed the lawsuit,
agreeing with the school district that
the employee was speaking within the scope of his duties of
employment and thus his letter was
not a form of protected speech under the U.S. Supreme Court’s
ruling in Garcetti v. Ceballos
(that case is discussed on this page in California School Law).
The U.S. Court of Appeals for the
Ninth Circuit, whose jurisdiction encompasses several western
states including Idaho and
California, reversed that decision, noting that whether an
employee is speaking within the scope

of his duties of employment is a mixed question of law and fact.
Here, there was evidence that the
employee was addressing concerns beyond his duties as a
security specialist and thus acting as a
citizen. The case was sent back to the trial court for further
proceedings. Posey v. Lake Pend
Oreille School District No. 84, 546 F.3d 1121 (9th Cir. 2008).
The important point here is that the
scope of employment cannot be construed so broadly under the
U.S. Supreme Court’s Garcetti v.
20
Ceballos decision that public school employees lose their right
to speak out as citizens on matters
of public concern.
Page 224: Charter Schools Must Observe Student Free Speech
Rights Under California
Law Just Like Traditional Public and Private Secondary
Schools.
In 2010 the California Legislature amended both Education
Code Section 48907 and 48950 that

protect student speech to apply to charter schools serving
secondary students. In addition, if the
Commission on State Mandates finds any costs result from
implementing the latter, the state shall
provide reimbursement.
Page 225: Harper Case Comes to an End.
In 2009, the U.S. Court of Appeals for the Ninth Circuit ruled
that because both Chase and Kelsie
Harper had graduated from high school and the school’s speech
policies had been amended, their
case had become moot. The claims against the school and its
officials were dismissed. Harper v.
Poway Unified School District, 318 Fed. Appx. 540.
Page 228: Addressing Student Misuse of Electronic
Communication Devices Off Campus.
The law is slowly developing in this area as student misuse of
electronic communication devices
(ECDs) off campus increases. One of the more noteworthy
judicial decisions is a 2008 ruling
from the U.S. Court of Appeals for the Second Circuit. It
concerns a student at a Connecticut high

school who was disqualified from running for senior class
secretary after she posted a vulgar and
misleading message on her publicly accessible blog on
livejournal.com about the supposed
cancellation of a battle-of-the-bands concert. In the blog she
referred to school officials as
“douchebags.” She also said the event had been cancell ed (it
hadn’t) and included a letter sent by
her mother to the principal in case fellow students might wish to
write something or call the
principal “to piss her off more.” Several others students posted
messages on the blog, one student
calling the superintendent a “dirty whore.” The posting student
contended that the school had no
authority to sanction her because she was exercising her rights
as a citizen outside of school. The
Second Circuit decided against the student.
Three conditions emerge from this and other judicial decisions
for determining when student
expression off campus may result in student discipline. First,
was it reasonably foreseeable that
the sending/posting student would know that the communication
would cause disruption at school?

Second, has the school convincing documentation of material
disruption and/or substantial
interference with the rights of others at school to warrant
imposing discipline? And third, was the
discipline imposed tailored to the nature of the offense? Here,
the student was denied the
opportunity to run for student office, a privilege and not a right.
The court’s comments suggest
that stronger justification would have been necessary to impose
more severe sanctions on the
student. Doninger v. Niehoff, 527 F.3d 41 (2nd Cir. 2008). The
U.S. Supreme Court later refused
to review the ruling.
Because student expression off campus is normally beyond the
purview of the school, there must
be clear justification for imposing discipline. A California
federal judge ruled in 2010 that school
officials in the Beverly Hills Unified School District did not
have justification for suspending a
thirteen-year-old student after she made a videotape outside of
school containing disparaging
remarks about a fellow student. On the four-minute videotape,
several students called the student

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