AB 1995 and Shower Access for Homeless Students (CCD)

On September 21, 2016, Governor Brown approved Assembly Bill (“AB”) 1995 which adds Education Code, section 76011 to the Student Housing article of the Education Code. New section 76011 takes effect January 1, 2017. The full text of AB 1955 is attached to this Legal Update.

LEGAL UPDATE

October 3, 2016

To:  Superintendents/Presidents/Chancellors, Member Community College Districts

From: Virginia A. Riegel, Of Counsel and Mia N. Robertshaw, Assistant General Counsel

Subject:  AB 1995 and Shower Access for Homeless Students

Memo No. 17-2016 (CC)


On September 21, 2016, Governor Brown approved Assembly Bill (“AB”) 1995 which adds Education Code, section 76011 to the Student Housing article of the Education Code. New section 76011 takes effect January 1, 2017.  The full text of AB 1955 is attached to this Legal Update.

The basic requirement of section 76011 is that California community college campuses that have shower facilities for their students must make those shower facilities available for their homeless students.  Eligible students must fit within the definition of “homeless student,” be enrolled in coursework, have paid applicable enrollment fees, and be in good standing with the district.  Homeless students need not be enrolled in physical education or other classes that might normally be associated with shower use.

Section 76011 provides that a “homeless student” is a student who fits a specific federal definition of “homeless youth.”  The referenced federal law provides that “homeless children and youths:”

(A)      means individuals who lack a fixed, regular, and adequate nighttime residence (within the meaning of   section 11302(a)(1) of this title); and

           (B)       includes–

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; or are abandoned in hospitals;

(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 11302(a)(2)(C) of this title);

(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and

(iv) migratory children (as such term is defined in section 6399 of title 20 who qualify as homeless for the purposes of this part because the children are living in circumstances described in clauses (i) through (iii). (42 U.S.C.A. 11434a(2).)

Under section 76011, each Board of Trustees must determine a plan of action for making campus shower facilities available to “homeless students,” and the plan of action must address at least the following:

(1)       The hours of operation, which must be for at least two hours each weekday, which hours may not conflict with the intercollegiate athletic program.

(2)       The minimum number of hours a student must be enrolled in to use the facilities.

(3)       A plan of action if the hours of operation conflict with an intercollegiate athletic program.

The hours during which the shower facilities are available for use by homeless students must be consistent with the hours of operation of the facility in which the showers are located. 

Section 76011 is unclear in several regards. 

First, although colleges are required to use a federal definition for “homeless student,” section 76011 also requires that the definition “reflects the age of the homeless student population at the community college campus.”  Neither section 76011 nor official bill analyses indicates the meaning or intent of how a district’s definition can or should “reflect the age of the homeless student population at the community college campus.”  We see nothing in AB 1995 and its analysis to prevent districts from offering shower access to all homeless students regardless of age. 

Second, although section 76011 specifically provides that colleges cannot provide shower facility access for homeless students in a way that conflicts with its “intercollegiate athletic program,” districts undoubtedly have numerous existing physical education classes that are not part of an intercollegiate athletics program.  Those physical education classes may also require the use of the shower facilities by students enrolled in those physical education classes.  As to this issue, we assume that the Legislature would permit districts to avoid conflicts with “regular” physical education class use of shower facilities in setting the hours of operation of shower facility use by homeless students.  For example, a district might be able to designate morning hours before physical education classes start as available for access by homeless students.

Third, the section alternates between the terms “shower facilities” and “showers.” In some districts, the facilities that house showers may have features or services that go beyond showers, such as swimming pools, fitness equipment centers, yoga rooms, and other health/fitness options.  The bill analysis quotes the bill author as stating: “Students are less likely to attend class when they do not take showers and feel insecure about their physical appearance.” Accordingly, we believe that the Legislature intended the colleges to make the showers available, not the entire facility housing the showers.

Finally, new section 76011 is part of an article on “Student Housing” that includes section 76010. Section 76010 requires community colleges that maintain student housing to provide priority and special housing options to homeless youth and current and former foster youth.  Section 76010 defines “homeless youth” by reference to the same federal law used in section 76011. However, section 76010 further limits the definition (generally, to persons under 25 years of age) and requires a specific verification of status.  These specific conditions do not appear in section 76011. As a result, it appears that districts must apply different definitions under existing section 76010 and new section 76011.

Based on the lack of clarity in the section, we have asked the State Chancellor’s Office for its interpretation of the requirements of new section 76011.  We will advise our community college clients of any information we receive from that office. 

In the meantime, we recommend that districts determine how to provide the access required by section 76011, including the development of a Board plan of action. Because each community college district is different in terms of its student population, its facilities, and its intercollegiate/physical education programs, it is difficult to identify a standardized model for implementing new section 76011.  We recommend that districts consider, as soon as possible, how they will provide shower access to qualifying homeless students starting January 1, 2017.

Please contact our office with questions regarding this Legal Update or any other legal matter.

 

The information in this Legal Update is provided as a summary of law and is not intended as legal advice.  Application of the law may vary depending on the particular facts and circumstances at issue.  We, therefore, recommend that you consult legal counsel to advise you on how the law applies to your specific situation.

 

© 2016 School and College Legal Services of California

 

All rights reserved.  However, SCLS grants permission to any current SCLS client to use, reproduce, and distribute this Legal Update in its entirety for the client’s own non-commercial purposes.