Student Residency
and Enrollment:
Where Does the Student
Really Live, Where Are They
Entitled to Attend, and
Have They Had Their Shots?
CASBO CBO Symposium
November 18, 2016
Presented by:
Harold Freiman
Desiree Serrano
Student Residency and Enrollment:
Where Does the Student Really Live,
Where Are They Entitled to Attend,
and Have They Had Their Shots?
CASBO CBO Symposium
November 18, 2016
Presented by:
Harold Freiman
Desiree Serrano
Roadmap
Residency
Residency Investigations
Ways for Students to Transfer
School Districts
Elimination of Personal Belief
Exemption for Immunizations
2
Getting From One District to Another
Employment
Interdistrict
Based Residency Attendance
/ Allen Bill
Agreement
School District of Romero
Choice
Bill/Open
Enrollment
Parent is
physically
employed
within district
boundaries for
a minimum of
10 hours per
school week.
Traditional
transfer
between
districts.
District elects
to be a SDC
and allow
transfers.
E.C. 48204
E.C. 46600,
et seq.
E.C. 48300,
et seq.
NCLB/Program
Improvement
Students
attending one
of a list of
1,000 “low
achieving
schools” may
transfer
schools.
Student may
transfer if in
program
improvement
school.
E.C. 48350
20 U.S.C. 6316
No longer legally
required.
3
1
Residency
Residency
Student has residency in
the school district which
his or her parent resides
Ed. Code § 48200
5
Residency
Additional ways to establish residency:
• Licensed children’s institute or foster home (Ed. Code §
48204, subd. (a)(1).)
• Emancipated minor residing in district (Ed. Code §
48204, subd. (a)(4).)
• Living with a caregiver who resides in district (Ed. Code §
48204, subd. (a)(5) and Family Code § 6550.)
• Placed at a state hospital within the district. (Ed. Code §
48204, subd. (a)(6).)
6
2
Residency
Additional ways to establish residency, cont.:
• Parent or legal guardian is employed and lives with
the pupil at the place of his or her employment
within the boundaries of the school district for a
minimum of three days during the school week.
(Ed. Code § 48204, subd. (a)(7).)
7
Residency
What can the family use as
proof of residency?
8
Residency Investigations
9
3
Residency Investigations
District may conduct residency investigation, but first,
• District must adopt a policy at a public Board
meeting
• Identify the circumstances upon which the district
may initiate an investigation
• Describe investigation methods
• Before district hires a private investigator, the district
must make reasonable efforts to determine whether
the student resides in the district.
Ed. Code §48204.2
10
Residency Investigations (continued)
• Policy must also include:
• Prohibit the surreptitious photographing or videorecording of pupils who are being investigated.
• Employees and contractors of the school district
engaged in the investigation must identify
themselves truthfully to individuals contacted or
interviewed during the course of the investigation.
• Provide appeal process for determination of
meeting residency requirements.
11
Ways for Student to Transfer
School Districts
4
Ways for Student to Transfer School Districts
Allen Bill – Parent Employment
Based Residency
• Parent is physically employed in
the district for a minimum of 10
hours during the school week.
• Student is deemed to meet
residency requirements and
does not have to reapply each
year.
• This establishes residency.
Ed. Code § 48204(b)
13
Ways for Student to Transfer School Districts
Interdistrict Transfer
• Two or more districts may
enter into an agreement,
for the interdistrict
attendance of students.
• Student is not required to
reapply each year unless
school districts enter an
agreement that states
otherwise.
Ed. Code § 46600
14
Ways for Student to Transfer School Districts
Interdistrict Transfers – Priority for Victims of Bullying
If the district has determined that the student is a
victim of bullying the student must be given priority for
interdistrict attendance.
Ed. Code § 48900(r)
15
5
Ways for Student to Transfer School Districts
Interdistrict Transfers
• Appeal
– If either district
denies parents’
request to transfer,
parents may appeal
to the County Board
of Education
Ed. Code § 46601
16
Ways for Student to Transfer School Districts
School District of Choice
• Allows districts to accept interdistrict transfers,
subject to certain conditions, separate from
interdistrict transfer agreement/permit and
Allen Bill transfer alternatives.
• Parents must apply before January 1 of the
preceding school year.
• Final acceptance or rejection must be made by
May 15.
Ed. Code § 48300, et seq.
17
Ways for Student to Transfer School Districts
Open Enrollment Act/ Romero Bill Transfers
• Allows students attending one of a list of 1,000
low achieving schools to transfer to a school in
another school district.
• Parents must apply for enrollment before
January 1 of the preceding school year.
Ed. Code § 48351
18
6
Ways for Student to Transfer School Districts
NCLB Program Improvement (“PI” or “School Choice”)
• Schools in PI status are required to offer students
transfers to other non-program improvement schools in
or outside the district.
• Parents must receive notice of students’ right to
transfer by 14 calendar days before the start of the
school year.
20 U.S.C. § 6316
19
Ways for Student to Transfer School Districts
NCLB Program Improvement (“PI” or “School Choice”),
cont.
• Every Student Succeeds Acts was signed into law
December 2015 as the successor to NCLB. California
has opted not to require local educational agencies to
offer PI transfers.
• Once transfer has been granted, district must permit
the student to continue in his or her current non
program improvement school through the highest grade
level offered at that school.
20 U.S.C. § 6316
20
Elimination of Personal Belief
Exemption for Immunizations
7
Elimination of Personal Belief Exemption for
Immunizations
• Students required to
receive immunizations in
order to be enrolled.
• Parents have two weeks
to supply evidence to the
district that the student
has been properly
immunized or is exempt.
(Ed. Code § 48216.)
22
Conditional Enrollment
• A school district may
conditionally enroll any
student who submits a
statement from a licensed
physician that indicates:
(Health and Safety Code
120340; 17 CCR §§ 6000,
6035)
– Partial immunization
– Temporary medical
exemption
23
Exemptions to Immunizations
California law provides exemptions to the general
immunization requirements listed above. The most
prevalent exemptions include:
• Homeless Youth Exemption. (42 U.S.C. § 11432, subd
(g)(3)(C).)
• Foster Youth Exemption. (Ed. Code § 48853.5, subd.
(e)(8)(B).)
• Special Education Exemption.
• Medical Exemption. (Health and Saf. Code, § 120370.)
24
8
Exemptions to Immunizations (continued)
Exemptions Continued – Changes under SB 277January 1, 2016
• Personal Belief Exemption Eliminated. (Health and
Saf. Code § 120365.)
– Under prior law, school districts were required to enroll
a student who submits a Personal Belief Exemption
Form, indicating that immunization is contrary to his or
her personal beliefs.
– Students who enrolled in a district with the personal
belief exemption prior to January 1, 2016, may remain
in school without producing a complete immunization
record until certain “checkpoint” years.
25
Exemptions to Immunizations (continued)
Exemptions Continued – Changes under SB 277January 1, 2016
• Independent Study Exemption: School districts must
enroll a student who (1) wishes to attend an
independent study program; and (2) who does not
receive classroom-based instruction, regardless of
whether he or she can produce an immunization
record. (Health and Saf. Code § 120335, subd. (f).)
• Home-based Private School Exemption: Students who
attend a home-based private school are not required
to produce immunization records. (Health and Saf.
Code § 120335, subd. (f).)
26
Elimination of Personal Belief Exemption for
Immunizations
Referendum to Repeal
New Law
• Opponents failed to
gather enough
signatures to place a
referendum on
November 2016 ballot
to repeal SB 277
27
9
Elimination of Personal Belief Exemption for
Immunizations
Whitlow v. California
• Lawsuit requesting a preliminary injunction to prohibit
enforcement of SB 277
– Claims special education students face immediate
expulsion
– Claims law violates First Amendment right to free exercise
of religion
• Temporary restraining order denied because:
– No one has been expelled yet due to lack of immunization
records
– No one is threatened with immediate expulsion
28
Questions
29
Attorney Biography
Harold Freiman
Partner
Walnut Creek Office
2001 N. Main St., Suite 500
Walnut Creek, CA 94596
T: (925) 953-1620
F: (925) 953-1625
[email protected]
Harold M. Freiman is a Partner in Lozano Smith's Walnut Creek office and
co-chair of the Technology and Innovation Practice Group. He represents
school districts, county offices of education, and community college
districts in such areas as school facilities, property, general education law,
governing boards, student issues, business, and general litigation. He is a
recognized leader on such topics as developer fees, school district
reorganization, surplus property, the Brown Act and the Public Records
Act. Additionally, he provides advice and litigation services related to the
California Environmental Quality Act (CEQA) to cities, special districts and
educational agencies. He has been with the firm and representing public
entities for over 20 years. Mr. Freiman has appeared before the California
Supreme Court on behalf of the California School Boards Association's
Education Legal Alliance, and has been named a Northern California
"Super Lawyer." He also received the 2014 CASBO Associate Member of
the Year Award for his exemplary service to schools and to CASBO for
many years.
30
10
Attorney Biography
Desiree Serrano
Senior Counsel
Los Angeles Office
515 S. Figueroa St., Suite 750
Los Angeles, CA 90071
T: (213) 929-1066
F: (213) 929-1077
[email protected]
Desiree Serrano is Senior Counsel in Lozano Smith's Los Angeles
office. Her practice focuses on the student, labor & employment and
government relations aspects of education law. Ms. Serrano has
extensive experience as general legal counsel for school districts.
She presents trainings on a number of topics to school employees
such as sexual harassment, discipline, cyberbullying, student
searches, transgender student rights, contract drafting, Brown Act,
and the Americans with Disabilities Act.
She provides legal advice to administrators on personnel matters
such as discipline, layoffs, discrimination complaints, disability
accommodations, and leaves, in addition to preparing responses to
DFEH and EEOC complaints and negotiating settlement agreements.
She also has substantial experience with student issues including
records, discipline, searches and constitutional issues.
31
Disclaimer: These materials and all discussions of these materials are for instructional purposes only and do not constitute legal advice. If you need legal
advice, you should contact your local counsel or an attorney at Lozano Smith. If you are interested in having other in-service programs presented, please
contact [email protected] or call (559) 431-5600.
Copyright © 2016 Lozano Smith
All rights reserved. No portion of this work may be copied, or sold or used for any commercial advantage or private gain, nor any derivative work prepared there
from, without the express prior written permission of Lozano Smith through its Managing Partner. The Managing Partner of Lozano Smith hereby grants
permission to any client of Lozano Smith to whom Lozano Smith provides a copy to use such copy intact and solely for the internal purposes of such client.
32
11
SUMMARY OF INTERDISTRICT ATTENDANCE, TRANSFERS AND CHANGES IN RESIDENCY
Terms and
Conditions
Student Residency Based
on Employment of
Parent/Legal Guardian/
Allen Bill Transfers
(EC 48204(b).)
District can deem student to
be resident if parent/legal
guardian of student is
physically employed within
district boundaries for a
minimum of 10 hours per
school week.
Interdistrict Attendance
Agreements between Two
Districts (EC 46600 et
seq.)
Transfer into School District of
Choice (“SDC”) (EC 48300 et
seq.)
Agreement must contain
terms and conditions for
granting/denial of permits.
District electing to become a SDC Receiving district must give
must simply adopt a resolution.
enrollment priority to
students residing within its
If the number of transfer
boundaries. (Ed. Code, §
applicants exceeds the number of 48354(b)(6).)
transfer students the district has
elected to admit, transfers must be Parents must apply for
selected based on random,
enrollment before January 1
unbiased process.
of the preceding school year.
Receiving district may waive
Priority attendance is given to
this deadline. (Ed. Code, §
siblings of student already
48354(b)(2).)
attending the SDC.
Students approved for
Parents must apply for enrollment transfer are deemed to have
before January 1 of the preceding fulfilled residency
school year.
requirements of Ed. Code
section 48204.
1. No, but the number allowed to 1. No. Both the sending and
transfer out of a district to an
receiving districts, however,
SDC is limited by statute based
may prohibit the transfer of a
on ADA formula or status of
student or limit the number
sending district
of students who transfer if
2. Yes.
certain conditions exist in
either district. (Ed. Code, §
48355(a).)
2. Yes.
District of attendance sets
terms and conditions of
revocation.
Student does not need to
reapply each year, unless
otherwise specified in the
agreement.
Requires
Approval
1. Sending
District
2. Receiving
District
1. No, but the # allowed to
transfer out of a district is
limited by statute based on
ADA formula.
2. Yes.
1. Yes.
2. Yes.
Romero Bill/Open
Enrollment Act Transfers
(EC 48350 et seq.)
Copyright © 2016 Lozano Smith
1
Limits on
Receiving
District
Discretion
Is it Revocable?
Reapplication
Required
Annually?
Is District’s
Decision
Appealable to
County Board of
Education?
Student Residency Based
on Employment of
Parent/Legal Guardian/
Allen Bill Transfers
(EC 48204(b).)
Some discretion. Refusal
cannot be based upon race,
ethnicity, sex, parental
income, scholastic
achievement, or other
arbitrary consideration.
Either transferring or
accepting district may
prohibit transfer if it would
negatively affect courtordered or voluntary
desegregation plan. (Ed.
Code, § 48204 (b)(2)-(3).)
No; can only revoke if
reason for residency no
longer exists.
Interdistrict Attendance
Agreements between Two
Districts (EC 46600 et
seq.)
Transfer into School District of
Choice (“SDC”) (EC 48300 et
seq.)
Romero Bill/Open
Enrollment Act Transfers
(EC 48350 et seq.)
Broad discretion to deny or
revoke for any legitimate,
nondiscriminatory reason.
Very limited discretion.
Selection must be based on
random, unbiased process and not
on basis of athletic or academic
qualifications.
Receiving district may adopt
specific, written standards
for acceptance and rejection
of applications subject to
certain statutory limitations.
(Ed. Code, § 48356.)
Student entering grade 11
or 12 in the subsequent
school year cannot have his
or her interdistrict transfer
rescinded or revoked.
Yes; terms of revocation
should be specified in the
transfer agreement and/or
individual transfer permits
No. Once admitted, cannot
Absent specific terms
require pupil to reapply, but requiring reapplication,
OK to verify
student is not required to
parent/guardian continues to reapply until matriculation
be employed w/in district
out of transfer school.
boundaries for at least 10
hours per school week
Students entering grade 11
or 12 cannot be required to
reapply.
No.
Yes.
Either transferring or accepting
district may prohibit transfer if it
would negatively affect courtordered or voluntary
desegregation plan or the racial
and ethnic balance of the district.
(Ed. Code, § 48301.)
Yes, SDC may revoke if student
is recommended for expulsion.
(Ed. Code, § 48309(b).)
No.
No.
No. (Ed. Code, § 48356 (c).)
Renews automatically unless
SDC passes a board resolution to
withdraw from participation.
High school students may
continue until they graduate. (Ed.
Code, § 48308(d).)
Students accepted for
enrollment are not required
to resubmit applications to
remain enrolled in the
transfer school through
matriculation. (Cal. Code
Regs., tit. 5, § 4702(b).)
No.
No, the only available
remedy is judicial relief
through the courts.
Copyright © 2016 Lozano Smith
2
Transfers
CLIENT NEWS BRIEF
October 2015
Governor Signs Two New Bills Significantly Easing the Ability for Certain Students
to
Number 58
Establish Residency and Placing Limitations on Residency Investigations
On August 11, 2015, the Governor approved two bills pertaining to student
residency requirements and residency investigations, both of which will become
effective on January 1, 2016. Both of the bills stemmed from media attention to
a particular California school where the school district conducted a residency
investigation by hiring a private investigator to investigate the residency of a
student in the home of their parent’s employer.
October 2015
Number 58
Senate Bill (SB) 200 amends Education Code section 48204 by allowing students
to establish residency when their parent or guardian resides in the home of their
employer during the school week. Specifically, SB 200 allows for a student to
establish residency if:
•
The parent or legal guardian resides outside of the boundaries of the
school district, but
•
Is employed and lives with the student at the place of his/her
employment within the boundaries of the district for a minimum of three
days during the school week.
This new way to establish residency allows for live-in nannys/caregivers and
others whose children live with them at their place of employment to establish
residency if they reside within the district for three or more days during the
school week.
Assembly Bill (AB) 1101 adds Education Code section 48204.2 as it relates to all
residency investigations. Under this new Education Code provision, school
districts are required to adopt a residency verification board policy, during a
public meeting, if they will be conducting any residency investigations. While
the statute expressly requires the adoption of a board “policy,” a school board
may also adopt a corresponding administrative regulation. The policy must:
•
Identify the circumstances under which the district may initiate an
investigation regarding a student’s residency.
•
Require that a school district employee be able to identify “specific,
articulable facts supporting the belief that the parent or legal guardian
of the pupil provided false or unreliable evidence” regarding the
student’s residency.
•
Describe the investigatory methods that may be used by the district in
conducting the investigation.
•
State whether the district will be using a private investigator in
conducting residency investigations. Education Code section 48204.2
states that before a private investigator can be hired, the school district
is required first to make “reasonable efforts to determine whether the
pupil resides in the school district.”
•
Prohibit the collection of “covert” images (photographs or video) of
Harold M. Freiman
Partner and Technology & Innovation
Practice Group Co-Chair
Walnut Creek Office
[email protected]
Aimee Perry
Associate
Sacramento Office
[email protected]
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2015 Lozano Smith
CLIENT NEWS BRIEF
October 2015
Number 58
students who are being investigated—any photographs or video must be obtained in open and public view.
•
Require employees and contractors of the district conducting the investigation to identify themselves truthfully.
•
Provide an appeal process.
The foregoing procedures have the potential to limit a school district’s ability to conduct effective residency
investigations. Certain common investigatory methods could be disallowed, and investigators may essentially have
to put families on notice that they are being investigated, allowing families who falsify residency information more
opportunities to protect their fabrication. It is noteworthy that some school districts, including the one subject to the
media scrutiny that led to these bills, have experienced fabrications ranging from simple falsehoods about actual
places of residence to the sale of addresses on Craigslist and through other sources for the express purpose of
falsifying residency. It is not clear whether the Legislature took such circumstances into consideration in passing SB
200 and AB 1101.
In light of the new way to establish residency, school districts should consider revising their board policies and
administrative regulations regarding student residency. School districts should also consider whether they will
conduct residency verification investigations, and if they plan on doing so, they should adopt a board policy and/or
administrative regulation in line with Education Code section 48204.2.
For more information on SB 200 and AB 1101, please contact one of our nine offices located statewide. You can also
visit our website, follow us on Facebook or Twitter, or download our Client News Brief App.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2015 Lozano Smith
CLIENT NEWS BRIEF
Legislative Update: Governor Signs Two Attendance-Related Bills
On July 25, 2016, Governor Jerry Brown signed two Assembly bills related to K12 school district student attendance. Assembly Bill (AB) 2537 indefinitely
extends Education Code section 48204 subdivision (b), which permits a student
to attend school near where their parent works. Assembly Bill (AB) 1593 makes
a student’s attendance at a naturalization ceremony an excused absence.
July 2016
Number 47
August 2016
Number 48
AB 2537: Interdistrict Transfers Because of Parent Employment to
Continue Indefinitely
AB 2537 eliminates the July 1, 2017 expiration date for Education Code section
48204 subdivision (b), commonly referred to as the “Allen Bill.” Section 48204
authorizes a school district to allow a non-resident student to attend school in
that district so long as at least one of the student’s parents or legal guardians
works within the district’s attendance boundaries. In order for a student to
seek a transfer or establish residency, the student’s parent or legal guardian
must be employed for at least 10 hours per school week within the boundaries
of the district. Previously, this provision was due to sunset, or expire, on July 1,
2017. AB 2537 eliminates this expiration date, meaning that school districts
can allow Allen Bill attendance to continue indefinitely.
AB 1593: Excused Absence to Attend Naturalization Ceremony
AB 1593 amends Education Code section 48205 to make it easier for students
to attend their naturalization ceremony to become a United States citizen.
Under existing law, school districts are required to excuse absences for
students who are sick, to attend a doctor’s appointment, to attend a funeral or
observe a religious holiday, among other delineated reasons. Beyond the
expressly permissible reasons for an excused absence, school administrators
have discretion to designate any absence as “valid” and excused on a case-bycase basis. Schools are not required to give a student with an unexcused
absence an opportunity to make up missed homework, quizzes or tests.
Furthermore, three or more unexcused absences could lead to truancy and a
referral to the district attorney for possible prosecution, fines, and even jail
time for the parent or guardian. AB 1593 adds a provision to section 48205
that requires school districts to grant students an excused absence so they can
attend their own naturalization ceremony. The bill goes into effect on January
1, 2017.
If you have questions about student attendance or any other issues impacting
California students, please contact the authors of this Client News Brief or an
attorney at one of our nine offices located statewide. You can also visit our
website, follow us on Facebook or Twitter, or download our Client News Brief
App.
Harold M. Freiman
Partner
Walnut Creek Office
[email protected]
Joshua Whiteside
Associate
Fresno Office
[email protected]
As{SR201795}
the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2016 Lozano Smith
CLIENT NEWS BRIEF
July 2016
California Decides Not to Require Public School Choice Transfers Under ESSA
Number 41
Under Title I the Elementary and Secondary Education Act (ESEA) of 1965, as
reauthorized by the No Child Left Behind Act (NCLB) in 2001, schools that
failed to demonstrate sufficient annual progress toward established academic
proficiency goals fell into program improvement (PI) status and were required
to offer students transfers to other non-PI schools in or outside of the district.
Such NCLB-driven transfers are commonly referred to as “public school choice”
transfers. Occasionally, such transfers were accompanied by transportation.
July 2016
Number 41
The Every Student Succeeds Act (ESSA), however, which is the NCLB’s successor
signed into law in December 2015, allows states to exercise flexibility in
granting NCLB transfers for students enrolled in schools in PI status. Two
guidance letters sent out by the U.S. Department of Education, in January and
February 2016, respectively, explain states’ new flexibility under ESSA, under
which states can determine not to require local educational agencies (LEAs) to
offer public school choice transfers. The guidance provided that states
choosing not to require LEAs to offer public school choice transfers must send
an assurance letter to the U.S. Department of Education by March 1, 2016. The
required assurances in the letter include timely and meaningful consultation
with relevant stakeholders; publicly posting a transition plan no later than May
6, 2016; explaining in the transition plan how the state will ensure local
educational agencies provide eligible students with alternative support to
improve student outcomes; and the requirement that LEAs permit a student
who previously transferred to another public school under NCLB to remain
there until the child completed the highest grade in that school.
The California Department of Education (CDE) submitted an assurance letter on
February 17, 2016, and developed a 2016-2017 transition plan that included
actions California LEAs must take in lieu of providing transfers. In May, the
California State Board of Education (SBE) approved the transition plan, which is
available on the CDE website.
For the 2016-2017 transition year, California school districts are no longer
mandated to provide notice of public school choice transfer rights under
federal law. Nor are they obligated to grant student transfers out of PI schools.
However, if a student chooses to remain at the school they previously
transferred to under the NCLB, the school district does not have authority to
return the student back to his or her original school. Rather, school districts
must permit students who transferred under NCLB out of a PI school to
continue attending their current non-PI school through the highest grade level
offered at that school, and districts must continue to provide transportation for
those students if already doing so.
Please note, that neither ESSA nor California’s transition plan for federal law
public school choice transfers have any impact on the various bases for student
transfers under California law.
Thomas R. Manniello
Student Group Practice Chair
Monterey Office
[email protected]
Mariana A. Gerontides
Associate
Walnut Creek Office
[email protected]
If you have any questions regarding this transition plan, or about the impacts
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2016 Lozano Smith
CLIENT NEWS BRIEF
July 2016
Number 41
of ESSA generally, please contact the authors of this Client News Brief or an attorney at one of our nine offices
located statewide. You can also visit our website, follow us on Facebook or Twitter, or download our Client News
Brief App.
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2016 Lozano Smith
Immunizations
CLIENT NEWS BRIEF
Controversial New Immunization Requirements for School-Age ChildrenJuly 2015
Number 35
On June 30, 2015, the Governor signed Senate Bill (SB) 277 into law. SB 277
eliminates personal belief and religious exemptions for vaccine requirements
for school children. Previously, students attending public and private schools,
including preschools and day cares, did not have to meet immunization
requirements under Education Code section 48216 and Health and Safety
Code sections 120325 et seq. if their parents chose to opt-out of certain
vaccinations due to personal or religious beliefs. SB 277 becomes the strictest
mandatory vaccination law in the country. Many, even including some
vaccination supporters, have argued that the new law infringes on
constitutionally protected parental and religious rights.
July 2015
Number 36
SB 277 does not take effect until January 1, 2016, and until such time, schools
must continue to honor parent and guardian personal belief and religious
exemptions. Under SB 277, school districts should be aware of the following:
•
•
•
•
•
•
Students may still be exempt from the immunization requirements for
medical exemptions provided by a doctor;
SB 277 includes a “grandfather clause,” which allows children who are
already enrolled with personal belief or religious exemptions to remain
in school until check point years. These checkpoints occur when a child
first enrolls in a new school, when a child reaches kindergarten, or when
a child reaches 7th grade;
Students not previously immunized may continue in school as a
“conditional entry,” by obtaining a written plan from their doctor that
outlines when any missing vaccines will be completed;
Students who have an individualized education plan are still entitled to
receive the special education services called for under that student's
IEP;
Homeschooled students are not subject to the immunization
requirements; and
The list of mandatory vaccines required for school is shorter than the
number of vaccines on the Center for Disease Control schedule.
Finally, opponents of SB 277 have begun the referendum process, seeking to
have SB 277 overturned by a popular vote. The matter will be put to the voters
on the state-wide general election ballots in November of 2016 if the requisite
number of signatures is obtained on the referendum petition. We will continue
to monitor and update districts on the status of SB 277. This may impact
upcoming annual Parental Notices. School districts should consult with their
legal counsel regarding any necessary updates.
If you have questions regarding the new immunization requirements or other
student obligations, please contact one of our nine offices located statewide.
You can also visit our website, follow us on Facebook or Twitter, or download our
Client News Brief App.
Roberta L. Rowe
Partner
Fresno Office
[email protected]
Jessi T. Gasbarro
Associate
Sacramento Office
[email protected]
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2015 Lozano Smith
CLIENT NEWS BRIEF
November 2015
Referendum to Repeal Immunization Bill Fails to Qualify for Ballot
Number 66
A referendum that would have repealed Senate Bill (SB) 277, which eliminates
personal belief and religious exemptions for school vaccine requirements,
recently failed to qualify for the November 2016 ballot. This means that SB 277
will go into effect on January 1, 2016, although its requirements do not fully take
effect until July 1, 2016.
November 2015
Number 67
As previously reported (See Client News Brief No. 36, July 2015), SB 277 was
signed into law on June 30, 2015, and became the strictest mandatory
vaccination law in the country. Opponents of the new law almost immediately
began gathering signatures to place a referendum on the November 2016
ballot that would repeal SB 277. Had the referendum qualified for the ballot, the
implementation of SB 277 would have been stayed pending the results of the
November 2016 election. However, the opponents of the new law failed to
submit the required number of valid signatures before the deadline, and on
October 9, 2015 the Secretary of State’s office announced that the referendum
had failed to qualify. Therefore, there will be no stay, and SB 277 will go into
effect next year.
Under current law, immunizations are required for students entering public or
private elementary or secondary school or day care, and for students
advancing to 7th grade. Current law allows exemptions for medical reasons or
for religious or personal beliefs. SB 277 eliminates the personal and religious
belief exemptions for students entering school or before advancing to 7th
grade, beginning on July 1, 2016.
Students enrolling in school before January 1, 2016 may still use the personal
and religious belief exemption. In addition, a student with a personal or
religious belief waiver on file will still be allowed to enroll throughout the “grade
span” they are in as of January 1, 2016. The defined “grade spans” are: (1) birth
through preschool, (2) Kindergarten through 6th grade, and 7th grade through
12th grade. However, under SB 277, students advancing to the next “grade
span” after July 1, 2016 will not be able to use the personal belief exemption.
Although some SB 277 opponents have indicated that they will seek to place an
initiative on the November 2016 ballot that would restore the religious and
personal belief exemptions, an initiative would not serve to stay the
implementation of SB 277. Thus, even if the initiative were to qualify for the ballot,
SB 277 will still take effect next year.
If you have any questions regarding the new immunization requirements or
other student obligations, please contact one of our nine offices located
statewide. You can also visit our website, follow us on Facebook or Twitter, or
download our Client News Brief App.
Thomas R. Manniello
Partner and Student
Practice Group Co-Chair
Monterey Office
[email protected]
Michael Dunne
Paralegal
Fresno Office
[email protected]
As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2015 Lozano Smith
CLIENT NEWS BRIEF
October
Court Denies Preliminary Injunction Barring Enforcement of Senate Bill
2772016
Number 78
A federal district court in Southern California recently declined to issue a
preliminary injunction barring enforcement of Senate Bill (SB) 277. As we
previously reported, SB 277, which went into effect January 1, 2016, eliminated
the “personal belief” exemption (PBE) from vaccine requirements for
schoolchildren. (See 2015 Client News Brief No. 36.)
October 2016
Number 78
In July of 2016, several plaintiffs filed a request for a preliminary injunction,
alleging that SB 277 and its elimination of the PBE violated their rights to free
exercise, equal protection, due process and education, as well as the Individuals
with Disabilities in Education Act and section 504 of the Rehabilitation Act of
1973 and the Americans with Disabilities Act. The plaintiffs in the case, Whitlow
v. California (S.D. Cal. July 25, 2016, No. 16-cv-1715 DMS), included parents,
nonprofit organizations and students, including students with Individualized
Education Plans (IEPs).
While the court seemed sympathetic to the plaintiffs’ plight, noting that the
PBE had been in existence for decades and that the Legislature’s decision to
eliminate it raised principled and spirited religious and conscientious
objections by “genuinely caring parents and concerned citizens,” the judges
said that the “wisdom of the Legislature’s decision is not for this court to
decide.” In its decision, the court examined each alleged basis for the
preliminary injunction and determined that the likelihood of plaintiffs
prevailing on the merits of any of their claims was unlikely. A showing of a
likelihood of prevailing on the merits is required in order for a court to issue a
preliminary injunction.
A large part of the court’s opinion focused on the state’s ability to ensure the
safety of its constituents, which it may do by passing laws requiring that
individuals be immunized. The court noted that such laws have been upheld
by courts throughout the United States for more than 100 years, and, citing
Zucht v. King (1922) 260 U.S. 174, 176, that it was “long ago settled that it is
within the police power of a state to provide for compulsory vaccination.” The
court also noted that the issues raised in the complaint were addressed with
the Legislature before SB 277 was enacted, and that the Legislature decided to
proceed with the law despite those objections.
Three classes of students are exempt from the requirements of SB 277:
students with medical reasons to avoid vaccinations, those in home-based
private schools or on an independent study program without a classroombased component and students who have an IEP.
While the court
appropriately noted that students with IEPs are exempt from immunization
requirements, it did not clarify the vague language found under Health and
Safety Code section 120335, subdivision (h), regarding whether the
“exemption” for students with IEPs requires districts to provide services,
placement or both to students who have IEPs regardless of immunization
status. Rather, the court simply noted that students with IEPs have a right to
access special education and related services.
Marcy Gutierrez
Senior Counsel
Sacramento Office
[email protected]
Aimee Perry
Senior Counsel and Co-Chair
Student Practice Group
Sacramento Office
[email protected]
As{SR207419}
the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2016 Lozano Smith
CLIENT NEWS BRIEF
October 2016
Number 78
Since the preliminary injunction was not issued and the plaintiffs voluntarily withdrew their complaint, school
districts should continue to follow SB 277. Further, school districts should carefully examine what services and/or
placement they will provide to students with IEPs who are not immunized, and who are not exempt from the
requirements of SB 277. We strongly urge school districts to consult with legal counsel when dealing with these
difficult situations.
For more information on the court’s decision or on student vaccination requirements in general, please contact the
authors of this Client News Brief or an attorney at one of our 10 offices located statewide. You can also visit our
website, follow us on Facebook or Twitter or download our Client News Brief App.
As{SR207419}
the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief
does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.
© 2016 Lozano Smith
Harold M. Freiman
Partner
[email protected]
2001 North Main Street, Suite 500
Walnut Creek, CA 94596
T 925.953.1620 | F 925.953.1625
Education
J.D., Columbia School of Law
B.A. (high honors), University of California at
Berkeley
Practice Areas
Facilities & Business
Litigation
Students
Local Government
Community Colleges
Construction Advice and
Litigation
Public Finance
Technology &
Innovation
Bar Admission
California, 1990
Overview
Harold M. Freiman is a Partner in Lozano Smith's Walnut Creek office and co-chair of the Technology and Innovation
Practice Group. He represents school districts, county offices of education, and community college districts in such areas
as school facilities, property, general education law, governing boards, student issues, business, and general litigation.
He is a recognized leader on such topics as developer fees, school district reorganization, surplus property, the Brown
Act and the Public Records Act. Additionally, he provides advice and litigation services related to the California
Environmental Quality Act (CEQA) to cities, special districts and educational agencies. He has been with the firm and
representing public entities for over 20 years. Mr. Freiman has appeared before the California Supreme Court on behalf
of the California School Boards Association's Education Legal Alliance, and has been named a Northern California "Super
Lawyer." He also received the 2014 CASBO Associate Member of the Year Award for his exemplary service to schools
and to CASBO for many years.
Presenter Experience
Mr. Freiman, who has received numerous awards for public speaking, has been a speaker for, among others, the
California School Boards Association (CSBA), the California Association of School Business Officials (CASBO), the National
School Boards Association (NSBA), and the Coalition for Adequate School Housing (CASH). Mr. Freiman also regularly
conducts board workshops on topics such as the Brown Act and Board governance.
Articles
In addition to writing several of the firm's Client News Briefs, Mr. Freiman's article, "Upcoming Developer Fee Increase,
Being Proactive Can Result in More School Facilities Funds" was published in the CASBO Journal in December 2005. Mr.
Freiman also co-authored "Water and Sewer Service Impacts and Fees," Environmental Mitigation Handbook
(California's Coalition for Adequate School Housing, 2009) and Senate Bill 50 and School Facility Fees: A Report Prepared
by C.A.S.H.'s Legal Advisory Committee (1999). Mr. Freiman’s article, “In Service to the Client” was published in
California Lawyer Magazine in September 2013.
Professional Affiliations
Mr. Freiman is a frequent presenter and trainer for CASBO, is a member and former Chair of CASBO's statewide
Associate Member Committee, and served on the CASBO Board of Directors for 2015-2016. He has also served on the
Legal Advisory Panel for the Coalition for Adequate School Housing. Additionally, he is a member of CSBA's Council of
School Attorneys as well as the National School Boards Association's Council of School Attorneys.
Education
Mr. Freiman received his J.D. from Columbia Law School, and holds a B.A. from the University of California at Berkeley.
He was admitted to the California State Bar in 1990.
In college, he was a teaching assistant and reader in the Rhetoric Department, and worked as an instructor in the Contra
Costa College for Kids summer program. While at Columbia, he instructed first year law students in Real Property Law.
Desiree Serrano
Senior Counsel
[email protected]
515 S. Figueroa St., Suite 750
Los Angeles, CA 90071
T 213.929.1066 | F 213.929.1077
Education
J.D., University of San Diego School of Law
B.A., University of California, Santa Barbara
Practice Areas
Students
Labor & Employment
Local Government
Bar Admission
California, 2008
Overview
Desiree Serrano is Senior Counsel in Lozano Smith’s Los Angeles office. Her practice focuses on the student, labor &
employment and government relations aspects of education law. Ms. Serrano has extensive experience as general legal
counsel for school districts. She presents trainings on a number of topics to school employees such as sexual
harassment, discipline, cyberbullying, student searches, transgender student rights, contract drafting, Brown Act, and
the Americans with Disabilities Act.
She provides legal advice to administrators on personnel matters such as discipline, layoffs, discrimination complaints,
disability accommodations, and leaves, in addition to preparing responses to DFEH and EEOC complaints and negotiating
settlement agreements. She also has substantial experience with student issues including records, discipline, searches
and constitutional issues.
Additional Experience
While in Law School, Ms. Serrano worked as a Law Clerk for San Diego Unified School District, Mexican American Legal
Defense and Educational Fund and the Children’s Law Center of Los Angeles. She was also a Mediation Intern for the
National Conflict Resolution Center and a Land Use Intern for the City of San Diego.
Professional Affiliations
Ms. Serrano is a member of the California Bar and involved with the California Council of School Attorneys.
Education
Ms. Serrano received her Juris Doctor from the University of San Diego School of Law. She earned a Bachelor of Arts in
Law and Society, and minored in Education and Applied Psychology, from the University of California, Santa Barbara.