Education Matters: September 2023

Education Matters

first Amendment

School District Must Recognize A Christian Student Group That Has Controversial Views On Marriage And Sexuality.

The Fellowship of Christian Athletes (FCA) is an international ministry group for student athletes that has student clubs at many schools. The FCA clubs in San Jose Unified School District organize regular worship activities and state that they welcome all students to participate in events. However, FCA clubs require their student leaders to affirm core religious beliefs identified in FCA’s Statement of Faith. One of those beliefs is that sexual intimacy should only occur within a marriage between one man and one woman. Students serving in a leadership capacity must affirm the Statement of Faith and abide by a sexual purity policy.

In San Jose Unified School District, student-run organizations can apply for recognition as part of the District’s Associated Student Body (ASB) program. ASB recognized clubs get benefits such as inclusion in the official club list and student yearbook, access to ASB financial accounts and ASB-sanctioned fundraisers, an official campus faculty advisory, and priority access to meeting places on campus. Since the early 2000s, FCA chapters enjoyed ASB recognition at three high schools in the District. No student ever complained to the District that they wanted to hold a leadership position in an FCA chapter but was ineligible due to FCA’s religious requirements. No student ever complained that they felt excluded by FCA’s religious beliefs.

Peter Glasser is a teacher at Pioneer High School, one of the schools in the District. In April 2019, Glasser obtained copies of FCA’s Statement of Faith and Sexual Purity Statement. He posted the statements on his whiteboard with a note: “I am deeply saddened that a club on Pioneer’s campus asks its members to affirm these statements. How do you feel?” Glasser also sent two emails to the School’s principal with concerns about

the pledge, especially the ways in which the pledge could impact LGBTQ+ students. Shortly thereafter, the School held a leadership committee meeting of department chairs and administrators, and decided to bring their concerns to the District. Two days later, the District stripped the FCA club of ASB recognition.

For the 2019-2020 school year, the School denied FCA’s application for ASB recognition. However, the School granted ASB recognition for a new club called the Satanic Temple club. For the 2020-2021 school year, the pandemic forced schools to operate remotely. That year, the School granted provisional ASB recognition to all clubs, including FCA.

In April 2020, two FCA student leaders at Pioneer, Pioneer FCA, and FCA National sued the District and several school officials. They argued the District violated their rights to (1) equal access to extracurricular school clubs under the Equal Access Act (EAA); (2) Free Speech, Free Expressive Association, and Free Exercise of Religion under the First Amendment; and (3) Equal Protection under the Fourteenth Amendment. The FCA students and FCA groups asked the trial court to force the District to restore ASB recognition for FCA student chapters.

In response to the litigation, the District adopted a new version of its non-discrimination policy for the 20212022 school year called the All-Comers Policy. The AllComers Policy required ASB recognized student groups to permit any student to become a member or leader, if they met “non-discriminatory criteria.” The policy did not define “non-discriminatory criteria.” Despite the All-Comers Policy, schools in the District were allowed to maintain clubs with discriminatory membership requirements. For example, the Senior Women club retained ASB approval even though it was only open to seniors who identify as female. Likewise, the South Asian Heritage club could prioritize acceptance of South Asian students. No FCA club applied for ASB recognition in the 2021-2022 school year because the

All-Comers Policy would have prevented them from selecting leaders based on their agreement with the club’s faith.

The trial court denied FCA’s request to make the District restore ASB recognition to FCA student clubs. The trial court said the All-Comers Policy was unlikely to violate FCA’s rights. FCA appealed to the Ninth Circuit Court of Appeal and a divided three-judge panel reversed the decision and ordered the District to recognize the FCA student groups. The District appealed, asking for a rehearing en banc, which is a rehearing in front of eleven judges on the Ninth Circuit Court of Appeal.

The Court of Appeal considered the FCA’s argument that the District had violated their First Amendment rights to free expression and exercise of religion. The Court of Appeal stated that laws or policies that burden religious exercise must be neutral and generally applicable, otherwise the law or policy must pass what is known as “strict scrutiny.” Policies that are neutral and generally applicable (1) may not allow for individualized exemptions, (2) may not treat comparable secular activity more favorably than religious exercise, and (3) must not be hostile to religious beliefs.

The All-Comers Policy prohibited all ASB clubs from enacting discriminatory membership and leadership criteria, and were not generally applicable. The District retained discretion to grant individual exemptions

and did so in a discriminatory manner. For example, the District allowed exemptions based on the District officials’ use of “common sense,” by allowing clubs and programs to restrict membership on attributes such as good character. The Court determined that the District treated comparable secular activity more favorably than religious exercise. For example, the District allowed the Senior Women club to admit only seniors who identify as female. The Court determined that the District penalized FCA based on its religious beliefs.

Therefore, the District’s policies had to pass strict scrutiny. Strict scrutiny means the policy is only valid if the government can show that it is necessary to achieve a compelling government interest. Here, the District failed to show that it even considered less restrictive measures. The Court of Appeal reversed the trial court’s ruling and directed the trial court to order the District to reinstate FCA’s recognition as an ASB recognized student club.

Fellowship of Christian Athletes v. San Jose Unified Sch. Dist. Bd. of Educ. (9th Cir. 2023) __ F.4th__ [2023 U.S. App. LEXIS 24260].

Note:

This case shows that selective enforcement of policies can create constitutional violations. Here, the Ninth Circuit found that the District treated a religious group less favorably than comparable secular groups, which violates the First Amendment’s Free Exercise Clause.

new to the Firm!

Phillip Murray, an Associate in our Sacramento office, provides labor, employment, and education law expertise to our clients. Prior to joining LCW, Phillip served at the California Correctional Peace Officers Association where he represented correctional peace officers in a variety of proceedings including interrogations, reviews, and appeals.

Scott Fera, a Senior Counsel in our Sacramento office, provides advice, counsel, and trainings to our public agency, public and private education and nonprofit clients in a wide range of matters spanning from labor and employment, business and facility use, nonprofit governance, Title IX, and student issues.

Employee medical information

School Did Not Discriminate Based On Confidential Medical Information By Requiring Proof Of COVID-19 Vaccination Status Or Weekly Test Results.

Gloria Elizabeth Rossi worked for Sequoia Union Elementary School, providing in-person classroom assistance to children with special needs and children who spoke Spanish as their primary language. On August 11, 2021, the State Public Health Officer issued an order requiring K-12 schools to verify the COVID-19 vaccination status of all school workers, in order to protect unvaccinated students. The health order stated that unvaccinated or incompletely vaccinated workers must test at least once a week. The order further stated that if a worker did not provide vaccine documentation, the School must consider them unvaccinated and require that they test weekly. Rossi refused to disclose her COVID-19 vaccination status or to undergo weekly testing. She told the School’s principal and superintendent, Ken Horn, that she did not consent to him obtaining or disclosing her medical information. Horn gave her the option of working remotely, which she refused. He placed her on unpaid leave in October 2021. In July 2022, Horn terminated Rossi’s employment.

Rossi sued the School claiming they violated the Confidential Medical Information Act (CMIA).

The CMIA prevents health care professionals from disclosing a person’s medical information to third parties unless the patient signs an authorization to release medical information. Rossi argued that the

School violated CMIA Section 56.20, subdivision (b), which forbids employers from discriminating against employees who refuse to sign an authorization to release medical information to them. She also argued that the School violated CMIA Section 56.20, subdivision (c), which says employers cannot use or disclose employees’ medical information without their consent.

The trial court dismissed Rossi’s case. The trial court agreed with Rossi that requiring an employee to share her COVID-19 vaccination status or testing results is essentially the same as requiring her to sign an authorization to release medical information. However, the CMIA says employers can take actions that are “necessary” when they do not have an employee’s medical information. The trial court found that the Health Order made it necessary for the School to exclude workers who did not share their COVID-19 vaccination status or testing results. The trial court also agreed with Rossi that the School used her medical information without her consent, because the School assumed she was unvaccinated and based decisions off that assumption. However, the trial court said the CMIA allowed the School to do that because the CMIA says employers can disclose medical information if the law requires them to.

Rossi appealed the decision. The Court of Appeal agreed with the School that the case should be dismissed but for different reasons than the trial court. The Court of Appeal said that requiring Rossi’s COVID-19 vaccination status or testing results was different from requiring that she sign an authorization to release medical information. Regardless, the Health Order required the School to exclude employees who did not provide their vaccination status or weekly test results, so the School’s actions were necessary and allowable. The Court of Appeal also said

that the School neither used nor disclosed Rossi’s medical information because the School never had her medical information in the first place. The CMIA defines “medical information” as “individually identifiable information, in electronic or physical form, in possession of or derived from a provider of health care . . . regarding a patient’s medical history.” The Court of Appeal ruled that an assumption does not fall within the CMIA definition of “medical information.” The Court of Appeal ruled in favor of the School and dismissed Rossi’s lawsuit.

Rossi v. Sequoia Union Elementary School (Aug. 25, 2023, No. F085416) ___Cal.App.5th___ [2023 Cal. App. LEXIS 649].

studentissues

Six School Districts Pass Transgender Parental Notification Policies.

Last month’s August edition of Education Matters reported on the Regino v. Staley case. In that case, a mother sued Chico Unified School District because her child’s teachers started referring to her child by different gender pronouns without notifying her or obtaining her consent. The District has a policy that directs teachers to refer to students by their chosen gender pronouns and forbids teachers from telling a student’s parents without the student’s consent. A federal district judge ruled in favor of the District and said that the District’s policy did not violate the mother’s constitutional parental rights.

Since that decision was issued in July, school boards in six California school districts have passed nearly identical parental notification policies. These policies require schools to notify parents and guardians if a student asks teachers to refer to them by a different gender or name, or if they use a bathroom or program that does not align with the gender on their official records. The districts include Rocklin Unified School District, Orange County Unified School District, Temecula Valley Unified School District, Anderson Union High School District, Murrieta Valley Unified School District, and Chino Valley Unified School District.

Attorney General Rob Bonta has filed a lawsuit asking the San Bernardino County Superior Court to overturn Chino Valley Unified School District’s new parental notification policy. The Attorney General argues that the District’s policy violates anti-discrimination laws and violates students’ civil rights and constitutional rights to privacy. The judge ordered the District to temporarily stop enforcing the new policy. The litigation is ongoing and the next hearing is scheduled for October 13, 2023.

AB 1307 Helps Community College Districts Build More Student Housing.

Governor Newsom signed a new bill into law to make it easier for community college districts to build student housing. Assemblymember Buffy Wicks introduced Assembly Bill 1307 in response to a court decision that had blocked a student housing project at UC Berkeley. A neighborhood group had brought a lawsuit opposing the university’s plans to turn People’s Park into a student housing project that would also include supportive housing for 160 homeless residents. The group had objected to the unruly parties that students might host. The Court of Appeal agreed that the California Environmental Quality Act (CEQA) required the university to analyze and attempt to mitigate the increased social noise generated by student parties. The Court of Appeal also held that the university had failed to adequately analyze alternative sites for the housing project.

CEQA requires an environmental impact report (EIR) for projects that may have a significant effect on the environment. AB 1307 amends CEQA to specify that the noise that occupants and their guests generate is not a significant effect on the environment. It also added a provision stating that public higher education institutions do not need to consider alternative sites when they seek to build a residential or mixed-use housing project.

regulatory Action

EEOC Proposes Regulations For New Federal Pregnancy Law.

The Pregnant Workers Fairness Act (PWFA) is a new federal law that went into effect on June 27, 2023. Under the PWFA, employers must make reasonable accommodations to help employees who have physical or mental limitations and conditions related to pregnancy or childbirth.

U.S. Equal Employment Opportunity Commission (EEOC) is in charge of enforcing the PWFA and creating regulations to implement the law. The EEOC has issued proposed regulations and asked for public comment. The proposed regulations include definitions of key terms and examples of what constitutes a reasonable accommodation. Pregnancy accommodations that the EEOC said would be reasonable and should be granted in almost every circumstance include allowing pregnant employees to have extra time for bathroom, food and drink breaks, drinking water on the job, and allowing them to sit or stand as necessary. The PWFA requires employers to make reasonable accommodations for “pregnancy, childbirth, and related medical conditions.” The proposed regulations say this would include conditions related to current pregnancy, past pregnancy, potential pregnancy, lactation (including breastfeeding and pumping), use of birth control, menstruation, infertility and fertility treatments, endometriosis, miscarriage, stillbirth, or having or choosing not to have an abortion.

The public may submit comments on the proposed regulations until October 10, 2023. The proposed regulations are available on the federal regulations website

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benefits

By: Stephanie J. Lowe

No Intentional Infliction Of Emotional Distress For Lapse Of COBRA Coverage Due To Mishandled Paperwork.

Allentown School District terminated administrator Joseph LiCausi’s employment on April 30, 2020. As part of LiCausi’s lawsuit against the District for his termination, he filed a claim against the District’s Human Resources Director for intentional infliction of emotional distress (IIED) based on the termination of his health coverage under the District’s group health plan.

At the time of termination, the Human Resources Director (Director) notified LiCausi that he would be sending LiCausi a Consolidated Omnibus Budget Reconciliation Act (COBRA) notice about continuing health insurance. The Director testified that he provided LiCausi with the COBRA notice in May 2020, while LiCausi claimed that he never received it. The District’s health insurance provider Highmark Blue Shield (Blue Shield) informed LiCausi that his health coverage ended on April 1, 2020. There was no clear explanation why Blue Shield ended coverage one month before LiCausi’s formal termination date of April 30, 2020. Since LiCausi’s health insurance coverage ended April 1, 2020, there was a lapse in his health insurance coverage which occurred during the height of the COVID-19 pandemic.

An IIED claim requires evidence of intentional outrageous or extreme conduct by the defendant, which causes severe emotional distress to the plaintiff. Additionally, a plaintiff must suffer some type of resulting physical harm due to the defendant’s outrageous conduct. The U.S. District Court found LiCausi did not show that the Director’s conduct was outrageous. Instead, the Director properly notified LiCausi of his right to COBRA when it notified him of termination. The Director testified that he did not direct Blue Shield to terminate LiCausi’s health insurance. The Director also testified that his office sent COBRA information to LiCausi in May 2020.

The District Court stated that at most, LiCausi showed that the Director was not diligent in his efforts to ensure LiCausi was able to maintain health insurance coverage under COBRA. However, the failure to follow-up on health insurance paperwork was not so outrageous or extreme to meet the standard required for IIED. The District Court granted summary judgment in favor of the Director and District on this claim.

LiCausi v. Allentown School Dist., et al., 2023 WL 4471686 (E.D. Pa. 2023).

Note: This case serves as a reminder for employers to timely provide COBRA notices to employees and former employees who lose employer-sponsored health coverage due to a qualifying event. Employers are encouraged to keep a clear records of when COBRA notices were sent out to document compliance with COBRA requirements.

The California Supreme Court Significantly Expands The Liability Of An Employer’s Agents.

Kristina Raines and Darrick Figg, sued on behalf of themselves and a class of conditional offer of employment recipients. They alleged that they received offers of employment that were conditioned on pre-employment medical screenings that U.S. Healthworks Medical Group (USHW) performed. USHW conducted the medical screens as agents of the prospective employers. Raines and Figg claimed that USHW violated the California Fair Employment and Housing Act (FEHA) by requiring job applicants to complete a written health history questionnaire that included numerous questions that had no bearing on the applicant’s ability to perform job functions.

Government Code Section 12940 of the FEHA makes it an “unlawful employment practice” for an employer of five or more persons “to make any medical or psychological inquiry of an applicant.” The FEHA only allows these inquires “after an employment offer has been made but prior to the commencement of employment duties, provided that the examination or inquiry is job related and consistent with business necessity and that all entering employees in the same job classification are subject to the same examination or inquiry.”

The federal district court dismissed the FEHA claim, finding that FEHA does not impose liability on agents of an employer. Raines and Figg appealed the dismissal to the U.S. Court of Appeal for the Ninth Circuit.

The Ninth Circuit heard oral argument and then asked the California Supreme Court to answer this question: “Does California’s [FEHA], which defines ‘employer’ to include ‘any person acting as an agent of an employer,’ …, permit a business entity acting as an agent of an employer to be held directly liable for employment discrimination?”

The California Supreme Court answered yes. The FEHA’s plain meaning and legislative history, as well as federal antidiscrimination laws and public policy, all support the conclusion that an employer’s business-entity agents that have at least five employees and that “carr[y] out FEHAregulated activities on behalf of an employer” can fall within FEHA’s definition of “employer” and may be directly liable for FEHA violations. The Court specifically stated that it was not deciding the significance of any employer control over the agent’s acts that gave rise to the FEHA violation, nor whether its decision applied to business-entity agents with fewer than five employees.

Raines v. U.S. Healthworks Medical Group (Aug. 21, 2023, No. S273630) ___Cal.5th___ [2023 Cal. LEXIS 4619].

Note:

This ruling significantly expands the scope of FEHA liability to an employer’s business-entity agents that employ five or more people. Although this case does not involve the employers who extended the conditional offers, the case also does not immunize an employer from liability for delegating FEHA regulated functions to business agents. As a result, schools, colleges, and Districts should carefully vet prospective agents to confirm that their practices are FEHA-compliant.

laborrelations

NLRB Decision Makes Concerted Activity Claims Easier For Employees To Win.

Ronald Vincer worked in a manufacturing plant. Vincer was very social. He talked with others at their workstations, especially coworker James Boustead. Vincer’s superiors periodically counseled him about performance deficiencies, including excessive talking, distracting coworkers, and using his cell phone. His most recent counseling occurred on March 5, 2020.

On March 16, 2020, the state’s governor announced that a stay-at-home order and the closure of non-lifesustaining businesses would be effective the following day due to COVID 19. Vincer’s supervisors periodically updated employees about developments. Vincer and Boustead talked every day at work about the pandemic, including the fact that Boustead was at high risk because of his medical history. Vincer told Boustead and other employees that the plant should close because it was not an essential or life-sustaining business. Vincer also told Boustead that someone should tell the authorities that the plant was still open.

Also on March 16, two supervisors convened an allhands meeting. One stated that the plant was an essential business; he outlined the health and safety measures the plant was taking. Vincer was upset; he said that the plant did not take proper precautions and that the employees should not be working. Several others also questioned whether the plant was an essential business. The supervisor stated that employees needed to keep working until there was clarification from the state government.

Two days later, a plant employee learned that his wife had been sent home from her job because of flu-like symptoms. The employee shared that information with Vincer, who counseled the employee to tell the supervisor. The supervisor sent the employee home, but he returned to work two days later. Vincer asked the supervisor about the return-to-work requirements after having or being exposed to COVID. Vincer asked the supervisor if the plant should be operating. The supervisor said he believed the plant was a life-sustaining business.

Vincer spoke to Boustead and urged him to speak with supervisors about Boustead’s health vulnerabilities and the plant’s safety protocols. The supervisor assured Boustead that the plant would direct anyone who had or who was exposed to COVID stay home and be tested.

On March 24, a supervisor observed Vincer text messaging and reported this to another supervisor. Almost immediately, and without further investigation, the supervisors went to a third supervisor and recommended that Vincer be terminated. The third supervisor agreed. Shortly thereafter, Vincer was terminated for poor attitude, talking, and lack of profit.

The administrative law judge found that Vincer’s conduct – raising concerns to his supervisors about COVID protocols and the plant’s decision to remain open for business – was both concerted activity and for mutual aid or protection of other employees within the meaning of the National Labor Relations Act (NLRA). The judge rejected the plant’s arguments that Vincer’s complaints were only individual griping and not concerted. The judge did not accept the plant’s arguments that it terminated Vincer for poor performance and policy violations. The plant appealed to the National Labor Relations Board (NLRB).

The NLRB agreed that the plant’s decision to terminate Vincer interfered with Vincer’s rights to participate in concerted activities for mutual aid or protection. The NLRB decided that even an activity that starts with only a speaker and a listener can be concerted if the activity is an indispensable preliminary step to employee selforganization. Moreover, an employee’s statement need not explicitly induce group action, but can implicitly elicit support from other employees. The NLRB must conduct a thorough review of all the evidence to determine whether an individual employee’s protest had “some linkage to group action.”

The NLRB overruled its 2019 decision in Alstate Maintenance, which held that concerted activity only occurs if there is evidence of group activities, such as prior or contemporaneous discussion between or among members.

The NLRB held that Vincer’s COVID-related comments were concerted because they sought to bring “truly group complaints” to management’s attention. Vincer’s

one-on-one conversation with a supervisor was concerted because it was a logical outgrowth of the “truly group” complaint that Vincer had raised in the prior all-hands meeting. The NLRB held that Vincer’s conduct was concerted under the NLRB’s totality-of-thecircumstances test.

Miller Plastic Products, Inc. and Ronald Vincer, NLRB Case No. 06-CA-266234 (8-25-2023).

Note:

Although the NLRA does not apply to public employers, the California Public Employment Relations Board (PERB) and the California courts can look to NLRA precedents. Both the MMBA and the NLRA give employees the right to engage in concerted activities without employer interference. A key takeaway for employers is to never discipline an employee with a long-standing performance problem without thoroughly analyzing what precisely is precipitating the employer’s decision to now deal with a long-standing issue. In this case, the plant had tolerated the employee’s social activity for about five years, but fired the employee within two weeks after he raised safety concerns at an all hands meeting.

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business & Facilities

SB 699 Codifies Prohibition On Non-Compete Agreements From Out Of State Employers And Adds Private Right Of Action For Employees.

California recently passed SB 699 to expand the existing prohibition on non-compete agreements to agreements with out of state employers and to provide a private right of action to employees that are subject to an attempted enforcement of a non-compete agreement.

SB 699 adds Business and Profession Code Section 16600.5 that states any contract that is void under the Contracts in Restraint of Trade chapter of the code1 is unenforceable regardless of where and when the contract was signed. While California courts have regularly found non-compete agreements signed out of state to be unenforceable in California, the legislature has now acted to codify the prohibition into law.

Further, SB 699 creates a private right of action for employees by stating that an employer that attempts to enforce a contract that is void under the chapter commits a civil violation. An employee, former employee, or prospective employee may bring a private action to enforce the chapter for injunctive relief or the recovery of actual damages, or both. A prevailing employee, former employee, or prospective employee that succeeds in such an action is also entitled to attorney’s fees and costs.

Employers continue to include non-compete provisions in employment agreements even though they were void and unenforceable because it still served to restrict

1 The chapter generally prohibits and voids any contracts that restrict anyone from engaging in a lawful profession, trade or business of any kind. It also sets forth specific exceptions to this prohibition.

employee mobility. The legislature intends for this law to reduce the number of employers who violate this prohibition by increasing the risk of litigation and making it possible for employees to recover damages and attorney’s fees.

This law is set to go into effect on January 1, 2024.

Uptick In Scams Causes IRS To Stop Processing Employee Retention Credits.

Following excessive numbers of scams connected to businesses applying for the Employee Retention Credit (ERC), the Internal Revenue Service (IRS) announced that it was placing a moratorium on processing new ERC claims.

The IRS recently issued a warning regarding these scams and the dangers associated with applying for an ERC when ineligible.

Now, due to the rising numbers of improper claims, the IRS has elected to stop processing new claims through at least the end of the calendar year. The IRS will continue to process claims that it has already received, but is implementing stricter compliance reviews, and standard processing will go from 90 days to 180 days, and possibly much longer. The IRS may also request additional documentation from taxpayers before issuing a credit.

The IRS also emphasizes that submitting an inaccurate ERC claim is not risk free, as some promoters advertise. If a business receives a credit it is not eligible for, the business will be required to repay the credit and may be assessed penalties and fees.

The IRS is now also working with the Justice Department to address ERC fraud. At this time, over 250 investigations have been initiated, some of these investigations have resulted in federal charges and convictions for fraud.

We recommend contacting your trusted Liebert Cassidy Whitmore attorneys if you have entered into, or are considering entering into, a contract with a company offering assistance with determining ERC eligibility to help you understand any potential risks and to better protect your organization.

The full IRS news release can be found here

Did You Know?

Whether you are looking to impress your colleagues or just want to learn more about the law, LCW has your back! Use and share these fun legal facts about various topics in labor and employment law.

• The U.S. Supreme Court is being asked to hear a case on a public magnet high school’s admissions policy. A group of parents sued Virginia’s Fairfax County School Board, claiming that the School’s new holistic admissions policy, which no longer required an entrance exam or teacher recommendations, and instead evaluated “experience factors” was discriminatory towards Asian American students. The “experience factors” considered included being economically disadvantaged, English language learners, or special education students. This case is highly relevant for California schools. LCW will monitor the case for future developments.

• The U.S. Equal Employment Opportunity Commission (EEOC) announced that the 2022 EEO-1 Component data collection will begin on October 31, 2023. All employers (including schools) with 100 or more employees are required to report their EEO-1 Component data, which includes information on the racial, ethnic, and gender composition of an employer’s workforce by specific job categories. The deadline to submit this data will be December 5, 2023. The EEOC has published an instructional booklet that consolidates into one place the existing information about the filing process and data requirements. The booklet can be found here

• The U.S. Department of Education issued a Dear Colleague Letter clarifying the circumstances under which recipients of federal financial assistance can develop curricula and programs or engage in activities that promote racially inclusive school communities. The guidance was issued in response to an increase in the number of complaints and requests for assistance on these types of issues. The letter states that schools may be in violation of Title VI when they separate students based on race, even if programming for each group is identical. Schools also may be in violation of Title VI when they create, encourage, accept, tolerate, or fail to correct a racially hostile educational environment.

Firm

LCW Partner Mark Meyerhoff And Associates Viddell Lee Heard, Olga Bryan, And Daniel Ivanov Win Dismissal Of Employee’s Age Discrimination, Harassment, And Retaliation Lawsuit.

After 19 years as a support specialist in a community college district’s distance education program, an employee sued the district and several of her supervisors, deans, and board members for free speech retaliation, age discrimination, failure to prevent discrimination, retaliation, and harassment.

In early 2019, heavy rains flooded the employee’s building and the district relocated her from her private office into a shared office space with a handful of new officemates. Around the same time, the employee submitted an anonymous complaint to Cal/OSHA about asbestos discovered during flooding remediation. Meanwhile, the employee had also become an active union representative, advocating on behalf of classified staff at board meetings and campus events.

In her new workspace, the employee began engaging in disruptive behavior. On a regular basis, she swore, threw things, and once threatened to “hurt someone.” A coworker complained that the employee’s behavior was creating a hostile work environment and that she did not feel comfortable being alone with the employee. In response, the district placed the employee on paid administrative leave pending the outcome of an independent investigation. The investigator concluded that the employee’s behavior created a tense and unpleasant work environment, as corroborated by the employee’s other officemates. The district issued the employee a written reprimand, and the employee returned to work.

At the end of the school term, the employee was asked to prepare a video presentation. She claimed she did the best she could but acknowledged that her presentation was “not good.” When she was told it needed to be redone, the employee resigned and later filed suit in the U.S. District Court for the Central District of California.

After several successful motions to dismiss, the employee was left with the claims noted above against the district and two individual defendants. The remaining defendants filed a motion for summary judgment, arguing the case should be dismissed because there was no evidence that any of the district’s actions were motivated by anything other than the employee’s own misconduct and work performance.

The court agreed and granted summary judgment on each of employee’s claims. The court found that the employee could not demonstrate that her speech was a substantial or motivating factor in any adverse employment action. The evidence showed that the employee was placed on administrative leave and issued a written reprimand solely because her coworker raised concerns about the employee’s behavior, and not because of her Cal/OSHA complaint or her union activity. With respect to the retaliation claim, the employee claimed that she threw her computer mouse on the desk and stated she was going to “hurt someone” because of her frustration about the disparate treatment of disabled students and faculty within the distance education program. The court agreed that this outburst was not “protected activity,” and even if it was, there was no evidence showing that any of the district’s subsequent attempts to investigate and remedy the employee’s behavior were related to the employee’s concerns about disabled students and faculty.

The court also found that there was no evidence that the district or any of its employees impermissibly considered the employee’s age in making any decision regarding her employment. Nor did the court find any objective evidence that any district employee harassed the employee regarding her age. The court found that a supervisor’s single comment about the employee’s retirement was insufficient to constitute severe or pervasive harassment that was both objectively and subjectively offensive. The court granted the district’s motion for summary judgment and dismissed the case.

LCW Partner Adrianna Guzman And Associate Gabriella Kamran Win Early Dismissal Of A PERB Charge.

An LCW team led by Partner Adrianna Guzman and Associate Gabriella Kamran won the dismissal of a PERB unfair practice charge (UPC). A police lieutenant, who had been a police officers’ association president, filed the UPC against the City. The UPC alleged that the police chief retaliated against the lieutenant for various acts the lieutenant had taken in his capacity as POA President.

The LCW team immediately recognized that there were numerous deficiencies with the UPC, including the fact that PERB does not have jurisdiction over individual police officers. The team quickly pointed out all these deficiencies to PERB’s General Counsel.

The General Counsel agreed with the LCW team and dismissed the UPC. In its dismissal letter, the General Counsel focused solely on the fact that PERB does not have jurisdiction over individual police officers.

This victory was cost efficient because our client did not have to incur the costs and time needed to prepare for a PERB hearing.

LCW Associate Tony G. Carvalho Convinces The Court To Uphold A Sergeant’s Termination.

A police sergeant was fired after several incidents of misconduct. When the sergeant was the watch commander on duty, he served as backup to a welfare check on a 17-year-old. Upon arrival, the sergeant yelled at the boy to “shut up” and goaded the boy into a physical altercation by shouting “you wanna go?” The department received a recording of the incident.

The second incident involved a suspect who was not cooperating with an arrest, though not actively resisting either. At the time of the incident, the suspect was handcuffed and non-violent. Without alerting the arrestee or his subordinate officers, the sergeant placed the suspect in a neck restraint and both men went to the ground. The

sergeant kept hold of the arrestee by his neck while on the ground. A subordinate officer who was concerned for the arrestee’s well-being, told the sergeant to let the arrestee go several times. The sergeant responded “You don’t talk to me that way.” When the sergeant finally released the arrestee and got off the ground, he began yelling and cursing at the officer who told him to let go, saying “you’re nobody to speak to me that way” and “Don’t f***ing tell me what to do.” When the officer suggested they discuss this at the station, the sergeant became more agitated and upset, so much so that a third officer had to step between them.

On appeal, the City’s personnel board sustained the sergeant’s termination. He filed a writ in superior court to have his termination overturned. His writ argued that the board abused its discretion when it terminated him. The day before his opening brief was due, the sergeant filed paperwork to continue the trial date and the briefing schedule. When the sergeant failed to get the trial date moved by stipulation, he then moved the court to grant a trial continuance. The City opposed. The Court denied the motion. The sergeant failed to file an opening brief or to lodge any administrative record with the Court. The sergeant also did not attempt a late filing of his opening brief.

The City timely filed its opposition brief, which gave the sergeant an opportunity to timely draft a reply. The sergeant missed that deadline as well, and did not file his reply brief for yet another week. The Court exercised discretion to accept and review the reply, but concluded that the sergeant had not provided any theory or argument to explain how the City’s personnel board abused its discretion.

On the same day the sergeant filed his late reply brief, he filed 10 additional supplemental pleadings, each titled “Amended Petitioner’s Reply Brief: Memorandum of Points & Authorities.” After a quick review of these 10 pleadings, the Court declined to consider them, noting that it was inappropriate to consider new matters raised for the first time in a reply and that none of the exhibits were identified or authenticated. The Court noted that even if it did review this new record, the sergeant made no arguments linking any of the new record to his claims. The Court summarily denied the writ and the sergeant’s termination remained intact.

LCW has four community college district Consortiums across the state! Consortium members enjoy access to quality training throughout the year, discounts on other LCW products and events, and unlimited, complimentary telephone consultation with an LCW public education attorney on matters relating to employment and education law questions (including questions involving governance, business, facilities, and student matters!). We’ve outlined a recent consortium call and the provided answer below. Client confidentiality is paramount to us; we change and omit details in the ERC Call of the Month.

Question:

A student was not able to provide immunization records to the school before the start of the school year. The school asked if they could conditionally admit the student.

Answer:

The attorney advised that a student can be conditionally admitted if they received the first dose of every vaccine listed in Table D of 17 CCR Section 6035. The school must receive documentary proof that the student has received the vaccines, and the school has ongoing notification requirements until the student has completed all necessary vaccines. The attorney advised that the school must also review the records of any student admitted conditionally at least every 30 days from the date of admission, inform the parent or guardian of the remaining required vaccine doses until all immunizations are received or an exemption is filed, and update the immunization information in the student’s record.

Liebert Cassidy Whitmore