Recent Revisions to CSBA UCP Model Policy (K-12) - School & College Legal Services of California

In October 2014, the California School Board Association (“CSBA”) issued revisions to its model board policies and administrative regulations on Uniform Complaint Procedures (“UCP”) (BP/AR 1312.3) and Bullying (BP/AR 5131.2). This office has specific concerns regarding the changes and the resulting obligations a school district may have beyond what is required by law if the revised model policies and regulations are adopted.

LEGAL UPDATE

February 3, 2015

To: Superintendents, Member School Districts (K-12)

From: Loren W. Soukup, Associate General Counsel and Monica D. Batanero, Associate General Counsel

Subject: Recent Revisions to CSBA UCP Model Policy

Memo No. 04-2015

UCP Investigations

Please take note of the following CSBA revisions which require the UCP investigation process set forth in Sections 4600 et seq. of Title 5 to the California Code of Regulations to be followed for the investigation and resolution of all complaints of bullying, regardless of whether the complaint concerns unlawful discrimination:

1. Model Board Policy 1312.3 (UCP): any complaint alleging bullying in district programs and activities, regardless of whether the bullying is based on a person’s actual or perceived characteristics as a member of a protected class. A person can be a member of a protected class based on the following characteristics: race or ethnicity, color, ancestry, nationality, national origin, ethnic group identification, age, religion, marital or parental status, physical or mental disability, sex, sexual orientation, gender, gender identity, gender expression, or genetic information. (See CSBA Model BP 1312.3 at page 3, section 3)

2. Model Board Policy 5131.2 (Bullying): any complaint of bullying, whether it is discriminatory or nondiscriminatory, shall be investigated and resolved in accordance with law and the district’s uniform complaint procedures as specific in AR 1312.3. (See CSBA Model BP 5131.2 at page 4)

CSBA has expressly acknowledged that the UCP does not apply to nondiscriminatory bullying (bullying that is not associated with a protected class) but recommends employing the UCP, nevertheless, to ensure consistent implementation by district staff.

It is our recommendation that the foregoing provisions be deleted in their entirety from the CSBA model policies before adoption. Our concern with these provisions is that they expand application of the UCP beyond what is required by law and subject districts to potential appeal of every bullying complaint to the California Department of Education.

UCP and FERPA

In determining what information to include in the final written decision for complaints alleging unlawful discrimination, including discriminatory harassment, intimidation, or bullying, districts should be aware that the Office of Civil Rights (“OCR”) has interpreted various federal statutes prohibiting discrimination to mean that Family Educational Rights and Privacy Act (“FERPA”) permits a district to disclose to a student, who was subjected to unlawful discrimination, certain information about the sanctions imposed upon the offender student when the sanctions directly relate to that student. For instance, if properly remedying the impact of discrimination would require disclosing to the alleged victim certain information on how the district disciplined the student offender (e.g., stay away order), OCR would require the district to disclose that information to the alleged victim.

It is our recommendation that districts remove the disclosure requirement from CSBA’s Model Administrative Regulation 1312.3. (See CSBA Model AR 1312.3 at page 12) We believe that the disclosure to a student victim of the corrective actions taken against a student offender would be in violation of FERPA.

Please contact our office if you would like assistance in revising the CSBA policies and regulations to reflect the recommendations above or your district’s local needs, or if you questions regarding this 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.

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