Assembly Bill (“AB”) 104, signed into law by Governor Newsom on July 1, 2021, became effective on signature. AB 104 is intended to address concerns regarding retention, grades, and graduation requirements deemed necessary because of the COVID-19 pandemic’s impact on education. AB 104 has three main components, each of which apply to all school districts, county offices of education, and charter schools:
- It requires Local Educational Agencies (“LEAs”), upon receiving a request for retention from a parent of an eligible pupil in grades TK to 11, to offer the parent a consultation regarding whether the pupil should be retained.
- It requires LEAs to afford pupils, upon request, a “pass” or “no pass” instead of a letter grade for courses taken in the 2020-2021 academic year and requires that certain institutions of higher education accept a “pass” credit for admissions purposes.
- It requires LEAs to exempt from local graduation requirements all students who were in their third or fourth year of high school in the 2020-2021 school year and who are not on track to graduate in the 2020-2021 or 2021-2022school years, and requires LEAs to provide those students the opportunity to complete the coursework required for graduation.
More information regarding each requirement follows. LEAs should address and implement the requirements of AB 104 immediately.
Pupil Retention (New Education Code Section 48071)
AB 104 requires all LEAs to implement a supplemental retention policy for the 2021-2022 school year that allows eligible pupils to be retained in their 2020-2021 grades during the 2021-2022 school year. The policy applies only to eligible pupils, defined as those pupils who, in the 2020-2021 school year, received “deficient grades.” “Deficient grades” are defined as receiving a D, F, No Pass, or an equivalent as determined by the LEA, in at least one-half of the pupil’s coursework for the 2020-2021 academic year. This retention policy does not apply to pupils in grade twelve during the 2020-2021 school year.
Per AB 104, within 30 calendar days of a parent’s written request to consult with the LEA regarding retention, the parent must be offered a consultation with the parent, the pupil, the administrator, and a teacher. The consultation must include a discussion of:
- All available learning recovery options, including specific interventions and supports pursuant to Assembly Bill 86, access to semester courses from the 2020-2021 school year in which he or she received a D or F, some other form of credit recovery, and/or other supports pursuant to newly added Section 51225 of the Education Code, discussed below.
- Consideration of the pupil’s academic data and any other information relevant to whether retention is in the pupil’s best interests, academically and socially; and
- Research on the effects of retention and the benefits of particular interventions and supports.
The law does not indicate whether this consultation must be via a meeting. However, the language of the code implies a meeting at which: 1) the parent is able to discuss retention with the pupil, the administrator, and a teacher; and 2) the LEA discusses the required statutory topics. These meetings must be convened within 30 days of parent request, which likely means over the summer break, regardless of teacher or administrator contracts. AB 104 does not specify that the teacher present at the consultation must be the pupil’s regular classroom teacher. However, typically, promotion and retention decisions are made by the pupil’s regular classroom teacher. Each LEA should ensure that decisions made under this supplemental retention policy are consistent with the LEA’s adopted policy on pupil retention.
The retention decision must be provided to the parent within 10 calendar days of the consultation. It is recommended that the decision be provided in writing.
AB 104 specifies that any retention decision must be consistent with a pupil’s individualized education program (“IEP”). Accordingly, for pupils with IEPs, it is recommended that the consultation required by AB 104 be held at an IEP team meeting so that the decision made is consistent with the pupil’s IEP.
An eligible pupil retained under this supplemental retention policy must be offered supplemental interventions and supports, pursuant to AB 86 funding. If a decision is made to not retain the eligible pupil, the eligible pupil must be offered specific interventions and supports pursuant to section 43520 and access to semester courses from the 2020-2021 school year in which he or she received a D or F, some other form of credit recovery, or other supports as specified in Section 51225 of the Education Code.
AB 104 does not provide a date by which parents have to make a request for retention under this supplemental retention policy. It is recommended that LEAs notify parents of their right to request retention under this new supplemental retention policy and establish a date by which parents must do so.
Pass/No Pass Option (New Education Code Section 49066.5)
AB 104 authorizes the parent, guardian, or educational rights holder of a pupil, or the adult pupil, to apply to the LEA to change a letter grade of a high school course completed during the 2020-2021 school year to a Pass or No Pass grade on the pupil’s transcript. The LEA must make the transcript change if requested, and may not limit the number or type of courses eligible for such a grade change. The grade change shall not negatively affect the pupil’s grade point average or result in the forfeiture of the pupil’s entitlement to state or institutional financial aid.
This process has a very short timeline.
Within 15 calendar days of July 1, 2021, the California Department of Education (“CDE”) is required to develop the application for the grade change request. Within 15 calendar days of the CDE posting the application template, any LEA serving high school pupils is required to post a notice on its website and provide written notice to all pupils and their parents or guardians of this grade change option. The notice must include:
- The application to request a grade change;
- The list of postsecondary institutions that will accept amended transcripts, which must be posted on CDE’s website within 20 days of July 1, 2021; and
- A statement that some postsecondary educational institutions, including those in other states, may not accept a Pass or No Pass grade instead of a letter grade for admission purposes.
All applications for grade changes pursuant to this provision of law must be submitted to the LEA within 15 calendar days of the LEA’s provision of written notice. An LEA is not permitted to accept applications after that date. The LEA must make the change to the pupil’s transcript within 15 calendar days of receiving an application.
The California State University is required to accept, without prejudice, the changed transcripts for admission. Other postsecondary institutions, including the University of California, are encouraged to do the same and to notify the CDE of their decision regarding the changed transcripts.
Exemption from Local Graduation Requirements (New Education Code Section 51225)
AB 104 requires LEAs to exempt all pupils who were in their third or fourth year of high school during the 2020-2021 school year and who are not on track to graduate in 4 years from all course work and other requirements adopted by the governing board of the LEA that are in addition to the statewide coursework requirements found in Section 51225.3 of the Education Code.
Separately, AB 104 requires LEAs to provide these same students an opportunity to complete the statewide coursework required for graduation, which could include a fifth year of instruction or other educational opportunities.
Mandated Cost Tracking
The Legislature acknowledged that the supplemental retention process could result in significant, one-time Proposition 98 General Fund Costs. These costs are likely to be deemed reimbursable by the Commission on State Mandates. LEAs should track costs associated with the supplemental retention process for potential future reimbursement.
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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.
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 LEAs with pupils in elementary grades who receive standards-based report cards will need to determine an “equivalent” for deficient grades to implement the required supplemental retention policy.
 The Assembly Education Committee analyzed AB 104 and provided a summary of research on grade retention (Hanover Research, 2013) found little benefit and significant risks of retention. Specifically, the Assembly Education Committee found that retention is a strong predictor of student dropout and that any positive effects of retention disappear within two years. The Assembly Education Committee’s analysis was cited by both the Assembly and Senate Floor Analyses, and is attached to this Legal Update.
 Educ. Code § 48070.5.
 As stated above, these IEP meetings likely will need to occur over the summer break, regardless of teacher or administrator contracts.