HIGHLIGHTS
| Due process rights violated when district placed classified employee on indefinite unpaid involuntary medical leave. School districts must conduct hearing to terminate teacher even if teacher's credential has been suspended by California Commission on Teacher Credentialing. | Liability for acts of another school official may be held individually liable for failing to act upon harassment of students. California Supreme Court will decide school's duty to bystander injured by reckless student. |
| Student privacy v. public's right to know school reports related to student hazing incident were not protected by privacy laws. Public's right to know confidential settlement agreement amount outweighs student's privacy interests. | Affirmative Action disregarding test scores to achieve affirmative action goals violates California Constitution and state statutes. State Board of Education reverses self and joins petition to abolish race-based quotas in San Francisco schools. |
| Religion in public schools award upheld for teacher who claimed religious discrimination based on her "new age" beliefs. Proposed constitutional amendment allowing school prayer clears first congressional hurdle | Age discrimination federal court in New York rules against school district in age discrimination suit brought by 71-year-old teacher. |
| Internet liability Virginia court holds that internet filtering device in public or university library could infringe on patrons' First Amendment rights. | Charter schools California Attorney General says charter school may not be formed as legal entity separate from school district that granted charter. |
| Private funding High School District Board may refuse to use school funds to pay for cleaning and repair of football equipment if private funds available. | Brown Act members of local public agency's legislative body may not ask questions or make statements while attending a Standing Committee meeting. |
| Union representation & protected activity meeting in which supervisor criticized employee's work performance was neither "investigatory" nor "highly unusual" so as to implicate employee's right of union representation. Board finds that reporting safety concerns to third party is protected activity under bargaining agreement. School district engaged in unlawful interference and discrimination by issuing disciplinary memorandum in response to self-represented teacher's memo. | Current issues fight against Prop. 227 intensifies. Proposed changes to Education Code extends re-employment rights to 39 months after leave has been exhausted. Imposing discipline over parents' objections. New fingerprinting legislation is delaying school hiring. |
IN THE COURTS
Due Process Rights Violated When District Placed Classified Employee On Indefinite Unpaid Involuntary Medical Leave
A California Court of Appeals found that the Los Angeles Unified School District violated an employee's due process rights when the District failed to provide the employee with a pre-deprivation hearing.
The District decided to place a classified employee (an Environmental Health Technician) on involuntary medical leave based on his recurring problems with epilepsy and diabetes. The District placed him on unpaid leave when he could not obtain clearance from his physician to return to full duty.
The Court of Appeals held that this violated the employee's due process rights because the District did not provide the employee with a hearing prior to placing the employee on unpaid leave. Essentially, the court found that since the employee was being deprived of his paycheck for an indefinite period of time, the District was obligated to give the employee notice of the intended action and an opportunity to respond.
The court explained that the uncertain nature of the employee's medical condition and the limitations posed on the employee's ability to perform the essential functions of his job presented the exact scenario which necessitates a due process hearing. A hearing would have assured that the District's actions were based on reasonable grounds and would have allowed the employee an opportunity to clarify uncertainties related to his ability to perform his job.
Since the court found that the District deprived the employee of his due process rights, the court ordered the District to pay the employee seven months of back pay.
Bostean v. Los Angeles Unified School District, April 15, 98 C.D.O.S. 2810.
School Districts Must Conduct Hearing To Terminate Teacher Even If The Teacher's Credential Has Been Suspended By The California Commission On Teacher Credentialing
In yet another due process challenge, the California Court of Appeals once again held in favor of an employee who was not given a hearing prior to school district taking disciplinary action.
The Poway Unified School District terminated a classroom teacher who had worked for the District for twenty-five years. The teacher, Michael Shields, had a standard teaching credential and was a tenured permanent employee. In March, 1995, the California Commission on Teacher Credentialing suspended Shields' teaching credential for ten years. The suspension was the result of allegations of sexual misconduct, threats, and other acts constituting misconduct.
Once the District learned that Shields' credential would be suspended for ten years, the District notified Shields of its intention to terminate him . based on the suspension and the misconduct. The District, however, told Shields that he had no right to a hearing since he no longer met the requirements for the position because he did not possess a "valid" teaching credential..
The court rejected the District's reasoning, stating that Shields still had a teaching credential. The fact that the credential was temporarily suspended did not serve to provide an automatic basis for termination without a hearing.
While the court acknowledged that the Education Code enumerates certain specified grounds for which a school employee may be terminated without a hearing, the court pointed out that these grounds were inapplicable in this case. Accordingly, since Shields' status as a permanent employee was not affected by the temporary suspension of his credential, the District wrongfully deprived him of his due process rights when it terminated him without a hearing.
Shields v. Poway Unified School District, May 7, 98 D.A.R. 4809.
School Officials May Be Held Individually Liable For Failing To Act Upon Harassment Of Students
The Ninth Circuit ruled that school officials may be personally liable for failing to adequately respond to sexual harassment claims or conditions.
In this case, a student complained that a student-teacher had sexually harassed her. Apparently, school officials did not respond to this complaint until the officials were contacted by the student's parents.
The student, "Oona," also claims that the classroom itself was a hostile environment because the male students in the classroom were constantly making sexual and degrading comments to the female students. One such instance was when Oona was slapped by a male student who then told her to "get used to it." The classroom teacher did nothing to address the male student's behavior.
Given the facts of this case, the court had to answer two questions: (1) whether school officials could be held personally liable for failing to take prompt action in response to a sexual harassment claim against a student-teacher, and (2) whether school officials could be held personally liable for failing to safeguard students from a hostile environment created by the student's peers.
The court found that school officials could be individually liable in both instances. The court reasoned that this was not a case of "vicarious liability" where a supervisor is responsible for the acts of his/her subordinates. Rather, this case deals with an individual's own discriminatory actions in failing to remedy a known hostile environment.
Since Oona sought only to hold the school officials accountable for their own actions, the officials involved were not protected by "qualified immunity" which would otherwise shield them from individual liability if they were acting on behalf of the school. As such, the Ninth Circuit has made it clear that school officials may be held personally liable, not only for sexual harassment perpetrated by them, but also for failing to take effective action to stop harassment by other teachers or students.
Oona R.S. v. McCaffrey, April 24, 98 C.D.O.S. 3086.
California Supreme Court Will Decide School's Duty To Bystander Injured By Reckless Student
The January/February 1998 edition of the Public Schools Newsletter discussed the Ninth Circuit decision, Hoff v. Vacaville Unified School District. The Ninth Circuit held that the District was liable for injuries to a pedestrian injured by a student who recklessly "peeled out" of an unsupervised school parking lot. The Circuit Court's rationale was that the school's other parking lot was supervised, and that it was foreseeable that if the second lot were unsupervised, a student would recklessly exit the lot, potentially causing harm to a pedestrian passing by the school.
Since then, the California Supreme Court unanimously agreed to review the decision. This means that until the Supreme Court decision is issued, the Hoff decision cannot be used as a basis for imposing liability of schools for injuries to passers-by caused by the school's students.
A California Appellate Court ruled that the claim form itself was not protected by the exemption. The court further stated that there were no student privacy laws preventing the disclosure since the claim form was not an "educational record" or a "pupil record." As such, the court found that the newspaper had a right to the tort claim reports
Hoff v. Vacaville Unified School District, March 11, 98 C.D.O.S. 1810.
School Reports Related To A Student Hazing Incident Were Not Protected By Privacy Laws
Following a brutal hazing incident in which a high school student was sexually assaulted with a broomstick by three baseball teammates, several students filed Tort Claims Act allegations against the school. These students were all victims of hazings which occurred at the school.
A newspaper sought copies of all of the claims that had been filed with the District. The District refused to give the newspaper copies of the reports, stating that the reports contained confidential student information and were exempt from the Public Records Act because of the "pending litigation exemption."
A California Appellate Court ruled that the claim form itself was not protected by the exemption. The court further stated that there were no student privacy laws preventing the disclosure since the claim form was not an "educational record" or a "pupil record." As such, the court found that the newspaper had a right to the tort claim reports
Poway Unified School District v. Superior Court, April 4, 98 C.D.O.S. 2736.
Public's Right To Know Of Confidential Settlement Agreement Amount Outweighs Student's Privacy Interests
In the second appellate case arising from the brutal sexual hazing of a high school student, a California Court of Appeals once again found that the public's right to know usurps the student's privacy interests.
After the hazing incident, the student filed civil claims against Poway Unified School District, alleging that this type of sexually assaultive hazing was accepted by the coaching staff. The District agreed to a confidential settlement and moved to have the case sealed until the student graduated or reached age eighteen. The lower court granted the motion and sealed the case.
The press, consisting of two local newspapers, brought an action stating that the public had a right to know the amount of the settlement since it was, in effect, public monies and since it was indicative of the District's culpability. The Appeals Court agreed that the settlement award was contained in a public record but that the record could remain sealed if the District or the student could show a "compelling interest" which would outweigh the public's right to know
The District advanced the argument that the student would suffer even more humiliation if the terms of the agreement were disclosed. This argument was supported by testimony from the student's psychiatrist. The court, however, found that the additional emotional trauma the student would allegedly suffer was speculative. The court reasoned that the size of the damage award was not related to any private interest or humiliation suffered as a result of the hazing. Accordingly, the court found that the District had not shown a compelling interest. The court then ruled that the public's right to know outweighed this speculative harm and ordered the settlement agreement to be unsealed.
Copely Press Inc. v Superior Court of San Diego County, April 20, 98 C.D.O.S. 2981.
A California Appellate Court recently held that state agencies may not give hiring preference to women and minority applicants over others who score higher scores on competitive civil service examinations.
The plaintiffs in the case, a native American and a white male, had applied and tested for entry level positions in the State Department of Fish and Game. Neither plaintiff was ever offered a position with the Department. The defendants (who included the State Personnel Board as well as the Department of Fish and Game) admitted that positions were offered to a number of women and minority applicants who had scored below both plaintiffs on the civil service test.
The State had based its hiring decisions in part on the Personnel Board's long-standing policy of "supplemental certification," which allowed certain minority and female applicants for state civil service positions to be considered for employment even though they did not place in the top ranks of eligible candidates.
While the case was pending in the Sacramento Superior Court, the United States Supreme Court issued its ruling in Richmond v. Croson Co. (1989) 488 U.S. 469. Croson held that while state or local governments may impose minority preference plans under limited circumstances, they may not be based only on the desirability of achieving racial balance or the proportional representation of minorities and women.
Thereafter, the defendants moved to have the case dismissed, arguing that the Personnel Board's recession of selective certification rendered the case moot. The Superior Court agreed and dismissed the case without bringing it to trial. The plaintiffs appealed and, while the matter was pending appellate review, California voters passed Proposition 209 prohibiting the state from discriminating against or granting preferential treatment to any individual on the basis of race or sex in the operation of public employment.
The Court of Appeals sided with the plaintiffs and reversed the Superior Court's ruling. It found that the crux of the lawsuit was not limited solely to the plaintiffs' challenge to the use of supplemental certification, but was also directed at the Personnel Board's power to authorize the use of race or sex as factors which may properly be considered in selecting applicants for civil service jobs.
The Court of Appeals further found that the Personnel Board's use of supplemental certification emasculated the merit principal specified in the California Constitution and state statute. As stated in the court's opinion: "Because the merit principal is intended to reward merit ascertained by competitive examination, that principal is utterly inconsistent with color-blindness for some and color-consciousness for others."
Finally, the Court held that the Personnel Board violated state law by forwarding data pertaining to race and gender to appointing authorities in the Department of Fish and Game.
The Court of Appeals remanded the case back to the Superior Court with orders to declare that the plaintiffs' rights were violated by the use of supplemental certification, enjoined the defendants from using supplemental certification in the future, and ordered that a remedy be fashioned to redress the violation of the plaintiffs' constitutional and statutory rights. Costs were also awarded to the plaintiffs.Accordingly, the court found that the custodian had indeed stated a cause of action under the ADA and ordered the lower court to hear the case.
William Kidd et al. v. State of California et al, March 20, 98 D.A.R. 2789.
State Board Of Education Reverses Self And Joins Petition To Abolish Race-Based Quotas In San Francisco Schools
In a very unusual move, the California Board of Education voted to flip-flop its position in a hotly contested law- suit. The case involves a class action challenge to a fourteen-year-old federal consent decree which prevents any one racial group from comprising more that 45% of a school's student body. The Board originally supported the San Francisco schools' position that enrollment caps based on race are both legal and necessary to make sure city schools stay desegregated.
Plaintiffs in the suit contend that the consent decree violates the Fourteenth Amendment to the U.S. Constitution by preventing children of Chinese descent from attending schools of their choice. According to plaintiffs' brief, students whose neighborhood schools are 'capped out' for persons of their ethnicity must go to school elsewhere, often far away from their homes. They must also have higher test scores than other students in order to attend a prestigious local high school in which they are over-represented. The state School Board now agrees that these students have been subjected to unconstitutional racial quotas.
The San Francisco NAACP (which brought the original suit that resulted in the consent decree) and the ACLU maintain that no child and no particular group of children is systematically burdened by the consent decree's assignment provisions. According to the ACLU: "The fact that in a particular instance a child of any race may be 'capped out' is inevitable in a race conscious desegregation plan; the alternative of removing all caps would eviscerate the plan."
The case came before the Ninth Circuit Court of Appeals after U.S. District Court Judge William Orrick Jr. denied the plaintiffs' request to dissolve the consent decree via summary judgment. Judge Orrick ruled that the matter should be decided with a trial. The matter could be sent back to Judge Orrick if the Ninth Circuit finds that his decision is not appealable.
Ho v. San Francisco Unified School District, 97-15926.
The U.S. District Court for the Eastern District of New York denied a school district's motion for summary judgement in the case of a seventy-one-year old high school teacher who brought suit under the federal Age Discrimination in Employment Act. The teacher, Lucille Gruberg, alleges that she was subjected to an onslaught of unfounded criticism, the threat of an incompetency hearing and repeated demands that she retire.
The court found Gruberg's case to be "loaded with genuine issues of material fact," and that a reasonable person would have inferred from the circumstances that Gruberg was compelled to leave her position. The court also noted that, if proven, the facts in the case raise "the specter of a discriminatory pattern and practice of forcing out older teachers ... only to replace them with younger teachers.." This means that Gruberg will be able to present her case before a jury.
Gruberg v. Sewanhaka Board of Education, April 15, 1998, Eastern District of New York.
In a case of first impression, a district court in Virginia held that there was sufficient evidence to hold a jury trial on the question of whether a public library unconstitutionally infringed the First Amendment rights of patrons by using Internet filtering software.
The ACLU filed suit on behalf of the library users alleging that the restrictions posed by using the software constituted an unlawful restraint on speech. The software prevented library users from accessing pornographic websites as well as, inexplicably, such sites as the Quaker Home Page, the Zero Population Growth website, and the site for the American Association of University Women, Maryland. The software was installed in all computers in the library, including those exclusively used by adults.
The Virginia district court identified the "central question" of the case as "whether a public library may, without violating the First Amendment, enforce content based restrictions on access to Internet Speech." In attempting to provide the court with an answer to that question, the parties each described the Internet in a way that was most helpful to their respective cases.
The library described the Internet as a vast "interlibrary loan" system, contending that a restriction on accessing part of the Internet was nothing more than a decision to not acquire certain materials for the library's collection. Conversely, the ACLU argued that the Internet is a "single, integrated system" not unlike a set of encyclopedias. The ACLU contended that the application of the filtering software was analogous to the library blacking out articles in the encyclopedia deemed inappropriate for patrons.
The district court determined that the ACLU description was a better analogy and rejected the library's argument that the filter's were akin to non-acquisition of materials. Based on this finding, the court held that the library would have to show a compelling interest for the filtering since it indeed constituted a restraint on speech
The library argued that the filtering software advanced the compelling interest of the government by protecting children from the harms that unfettered access to the Internet would inevitably cause. The court was not persuaded. The judge distinguished a public library from an elementary or high school library, finding the public library traditionally has been the repository of uncensored ideas. The court also stated that the library could not justify restrictions on adults that are the same as those for children
The library responded by stating it had an unblocking policy whereby adults could ask to have a site unblocked. The court was not impressed, finding that this policy was not enough to save the initial filtering policy from constitutional impairment
In the end, the court acknowledged that there was no duty to provide Internet service to library users, but having decided to provide the service, the library could not selectively restrict access. Accordingly, the judge denied the library's motion to dismiss the case and ordered the matter to trial
Mainstream Loudoun v. Board of Trustees of the Loudoun County Library, April 7, 1998, Eastern District of Virginia.
Award Upheld For Teacher Who Claimed Religious Discrimination Based On Her "New Age" Beliefs
Aside from the fact that this case does not originate in California, the case and outcome are not surprising. The Eighth Circuit upheld an $18,000 award for damages based on religious discrimination when a teacher's contract was not renewed by a school board, at least in part, due to concerns about "New Age" beliefs.
The teacher, Leslie Cowan, filed a suit, alleging violations of Title VII and the First Amendment. She stated that the board had decided not to renew her contract after board members learned that Cowan had given a "magic rock" to each of her second-grade students on the last day of school. Because the board had based the decision on their concerns about New Ageism, Cowan was able to prove religious discrimination.
Others vehemently disagree. One bilingual teacher's thoughts seem to sum up the sentiments of those opposed to the initiative: "It will be an evil day if this initiative succeeds. The mother tongue of our children must not be muted, be silenced . . . . It must be preserved, even as they learn English."
Cowan v. Strafford R-VI School District, April 14, 1998, 8th Circuit.
LEGISLATION
Proposed Constitutional Amendment Allowing School Prayer Clears First Congressional Hurdle
The House Judiciary Committee approved a measure which explicitly allows prayer in public schools. The proposed amendment would also allow religious symbols on government property and expenditure of tax dollars for private religious schools. The Committee narrowly approved the measure by a vote of 16 to 11.
The measure advances to a vote taken next month by the full House. The House would have to approve the measure by a two-thirds vote before it would move to the Senate which would also have to affirm the measure by a two-thirds vote. The proposed amendment would then have to be ratified by 38 states before it became law.
New Fingerprinting Legislation Is Delaying School Hiring
The new legislation which requires fingerprinting of school employees who may have contact with students, is stalling the hiring process.
The delays caused by the new background checks, which take weeks and sometimes months, are affecting every position in which an employee would have contact with the students. Accordingly, positions from softball coach to custodian are not being filled in a timely manner. This means that substitutes and administrators are having to cover.
The legislation, discussed in the January/February 1998 edition of the Public Schools Newsletter, was spawned as a result of the arrest of a school custodian for rape and murder of a student. The custodian had a criminal record, which the school did not know about because he was hired before the school received the results of his background check.
The legislation was intended to ensure that convicted felons don't get school jobs . especially when the job involves interaction with the students. Schools, however, are having to deal with the chaos created by time delays caused by waiting for the results of the background checks.
San Francisco Chronicle, March 10, 1998.
Proposed Changes To Education Code Extends Re-employment Rights To 39 Months After Leave Has Been Exhausted
For a school district employee employed in a position requiring certification qualifications, who is absent on account of illness or accident for a period of five school months or less, existing law precludes deducting from the salary an amount exceeding the sum actually paid to a substitute employee employed to fill his or her position.
This bill would condition this prohibition on continued absence after the employee has exhausted all available sick leave. The bill would require that the five-month period and the sick leave run consecutively and would limit an employee to one five-month period per illness or accident.
The bill would require placement of the certified employee, who has exhausted all available sick leave and continues to be absent on account of illness or accident and who is not medically able to resume his or her duties, on a re-employment list for a period of 24 months if the employee is on probationary status, or for a period of 39 months if the employee is on permanent status, unless the employee is placed in another position. The bill would require that during the 24 or 39 month period, the certified employee be returned to employment in a position for which he or she is credentialed and qualified when the employee is medically able.
By requiring that the school district comply with these differential pay and re-employment provisions, this bill would impose a state-mandated local program. Some administrators are questioning the net worth of the bill, since it imposes heavy obligations on them with respect to monitoring the employment status of an individual for up to 39 months.
SB 1019, as amended, Alpert. School employees: absences.
ATTORNEY GENERAL OPINIONS
The Office of the California Attorney General recently published an opinion addressing the independence of schools chartered under the Charter School Act of 1992. The opinion examined the question of whether a charter school may be formed not only for the purposes of its operational independence from the existing school district structure, but as a legal entity separate and apart from the school district that granted its charter. The Attorney General determined that there is a distinct difference between operational independence, which is authorized, and legal separation, which is not.
The opinion acknowledged that the legislative purpose of the Charter School Act was to "provide opportunities for teachers, parents, pupils and community members to establish and maintain schools that operate independently from the existing school district structure..." It also noted that several of the Act's provisions expressly or inferentially reserve powers to school districts which create charter schools. These include the power to periodically renew, revise, or revoke a charter by the school district governing board which granted it.
The Attorney General accordingly found that a charter school is not an independent legal entity. The opinion concluded that a charter school may exercise such independent legal rights as to sue and be sued, purchase property, employ personnel, and contract for services only as provided for by the provisions granted in its particular charter.
Cal. Ops. Att'y Gen. 98 C.D.O.S. 2606, April 2, 1998.
The California Attorney General issued its opinion on the following two questions posed by Senator Quentin L. Kopp: (1) may members of the legislative body of a local public agency ask questions or make statements while attending a meeting of a standing committee of the legislative body "as observers," and (2) may members of the legislative body of a local public agency sit in special chairs on the dais while attending a meeting of a standing committee of the legislative body "as observers"?
The opinion was short and answered both questions in the negative. The opinion cited the Brown Act and constructs of statutory interpretation to explain that "observers" meant non-participatory persons. If the observers were allowed to ask questions or make statements, the meeting would have to be open to the public since, under the Brown Act, the standing committee would be receiving information.
Likewise, the opinion stated that "observers" must sit in the area designated for members of the public who are attending the meeting. The opinion stated the statutory intent behind allowing legislative body members to attend did not include affording them greater privileges than held by members of the general public.
Cal. Ops. Att'y Gen. April 29, 1998 No. 97-1207.
In another short opinion, the California Attorney General's Office determined that the governing board may refuse to use school funds for cleaning football equipment if private funds were raised to cover these expenses.
In this case, the athletes and their parents had privately raised funds, specifically for the purpose of providing annual cleaning and repair of the football team's equipment. They raised the funds voluntarily.
The Attorney General found, under these facts, the board could refuse to use funds for the cleaning and repair of the equipment. The opinion noted, however, that if a district maintains a football program and voluntarily raised private funds are not available, the district would have the duty to pay these annual expenses.
Cal. Ops. Att'y Gen. April 27, 1998, No. 97-1214.
PERB DECISIONS
Upon review, the California Public Employment Relations Board dismissed an appeal by the International Union of Operating Engineers, Craft-Maintenance Division (IUOE) alleging unfair practices under the Ralph C. Dills Act.
The IUOE failed to establish its prima facie case in arguing that the State Department of Corrections violated the Act by denying an employee union representation at a meeting with management.
Citing the 1984 California Court of Appeals case Redwoods Community College District v. PERB (Redwoods) (1984) 159 Cal. App. 3d 617, 626, the Board stated that an employee has the right to union representation only at an investigatory interview which the employee reasonably believes would lead to discipline or an interview in which highly unusual circumstances are present.
Here, the Board found that the investigatory aspect of Redwoods was not present, as the remarks made by management to Ms. Stacy Esau were not meant to elicit facts and were wholly declaratory in nature. Furthermore, the Board found that the facts of this case, in which the employee was criticized by her supervisor for her poor work performance, differed from those in Redwoods in that they did not involve "highly unusual circumstances" where representation would have been necessary
Since these facts were insufficient to establish a prima facie case of unfair practices under the Dills Act, the Board dismissed the Union's charge.
International Union of Operating Engineers, Craft.Maintenance Division, Unit 12 v. State of California, 22 PERC 6 29046 (Jan. 28, 1998).
Board Finds That Reporting Safety Concerns To Third Party Is Protected Activity Under Collective Bargaining Agreement
In a case of first impression, the Board upheld an administrative law judge's ruling that the Oakdale Union Elementary School District (District) violated section 3543.5(a) and (b) of the Educational Employment Relations Act (EERA) when it disciplined an employee for reporting alleged safety violations to a third party.
At the time of the incident, Denise Bianchi (Bianchi) was employed as a secretary in the office of the Principal at Oakdale Junior High School and was the chapter president for the California School Employees Association and its Oakdale Elementary Chapter (Association). When Bianchi reported a list of unsafe conditions at the school to a safety inspector from the District worker's compensation insurance carrier, the District issued a memorandum regarding the list stating that Bianchi's actions would be reported in her personnel file.
The District and the Association were parties to a collective bargaining agreement that contained a provision that no employee shall be discriminated against as result of reporting unsafe working conditions.
The Board held that Bianchi's actions complied with this agreement and were an extension of her attempts to resolve these safety issues through the Association and the District. In so finding, the Board affirmed the ALJ's ruling that the report to the safety inspector constituted participation in the activities of an employee organization and that the District's adverse action against Bianchi, in direct response to this protected activity, constituted a violation of EERA section 3543.5(a) and (b).
While the Board had long held that an employee's pursuit of a safety-related complaint through his or her union is protected by EERA (Regents of the University of California (1983) PERB Decision No. 319-H at 15, fn.6), it previously had never specifically ruled on the issue of whether EERA protects the right of an individual employee to subsequently report safety concerns to a third-party.
California School Employees Association and Its Oakdale Elementary Chapter v. Oakdale Union Elementary School District, 22 PERC 6 29047 (Jan. 28, 1998).
School District Engaged In Unlawful Interference And Discrimination By Issuing Disciplinary Memorandum In Response To Self-Represented Teacher's Memorandum
In January of 1995, the District issued Donna Leonard (Leonard), a long term employee of the District and former Association president, a memorandum of warning for acting in an unprofessional and disruptive manner during a confrontation with employees in the District's business office. Leonard shortly thereafter responded in writing to this warning. In April 1996, Leonard issued a second response to this memorandum of warning, criticizing the District's investigation of the business office incident and contending that the warning was without merit.
May 1996, the District answered Leonard's second response with a lengthy disciplinary memorandum chastising Leonard for her history of discourteous conduct and indicating that continuing with this sort of behavior would lead to "more serious disciplinary action."
The Board concurred with the ALJ's conclusion that the District's May 1996 disciplinary memorandum unlawfully interfered with Leonard's protected employee right to represent herself individually in her employment relations with her employer. Finding that the District's May 1996 disciplinary memorandum constituted adverse action under EERA section 3543.5(a), the Board held that since the District had not provided evidence sufficient to demonstrate that it would have issued the disciplinary memorandum to Leonard had she not engaged in the protected activity, they were in violation of EERA section 3543.5(a) and (b).
The Board's opinion made clear that although the District retains a right to discipline union members and officers for their misconduct in spite of the protected activity, the District may not discipline the employees because they engaged in such protected activity.
Furthermore, the Board noted that in proving unlawful motivation, circumstantial evidence is ordinarily relied upon to determine whether a sufficient connection between the employee's protected activity and the District's decision to impose adverse action exists. However, in this case, the Board reasoned that because the May 1996 disciplinary memorandum was clearly issued in direct response to Leonard's protected activity, it was unnecessary to look to circumstantial evidence to establish the requisite nexus between the two events.
Alisal Teachers Assoc., CTA/NEA v. Alisal Union Elementary School District, 22 PERC 6 29049 (Jan. 28, 1998).
CURRENT EVENTS
California voters resoundingly voted to eliminate bilingual education as it currently exists in the public schools.
The initiative, authored by local businessman/political activist Ron Unz, will provide students with an intensive English immersion class for one-year. The students will then be transferred to regular classes.
Mr. Unz is confidant this system will more successfully provide non-English speaking students with education and opportunities that bilingual education failed to provide.
Imposing Discipline Over Parents' Objections
Increasingly, parents are objecting to schools imposing discipline on their kids. This can put teachers and administrators in a bind, mostly because the parent is undermining the school official's authority.
There are, however, some disciplinary actions that may be taken, even absent parental consent. For example, teachers, counselors, vice-principals, and principals have always been allowed to counsel students or interview students who are victims or perpetrators of misconduct without the consent or presence of a parent.
School officials are also allowed to impose suspension on a student without parental consent, so long as the officials comply with the due process rights set forth in the Education Code (section 48911).
In addition, school officials are not required to obtain parental consent prior to releasing a student to a peace officer . although, the school must immediately notify the parents afterwards
A recent section added to the Education Code (section 48900.6) allows school officials to impose community service on students in lieu of disciplinary action. While parents can refuse to allow their child to participate in the community service, the fact that the Education Code specifically allows schools to impose the service on students likely limits any potential liability schools may have in imposing the service on children without obtaining parental consent.
Lastly, since many parents refuse to permit after-school detention of their child, schools are being forced to impose detention on students during school hours. While students cannot be subjected to detention during recess or the noon break (Cal. Code Regs. sections 352-353), students may be detained during free-periods.
San Francisco Daily Journal, May 8, 1998.
Contributors: Clare N. Frank, Robert T. Owens, Richard M. Noack, Patricia P. White
) 1998-1999 Littler Mendelson, P.C.