Education Battling the Bulge: Chapter 32 Clarifies Requirements for P.E. Exemptions

Education
Battling the Bulge: Chapter 32 Clarifies Requirements for
P.E. Exemptions
Alex Harary
Code Section Affected
Education Code § 51241 (amended).
SB 602 (Torlakson); 2008 STAT. Ch. 32.
I. INTRODUCTION
Increasingly, children in California and throughout the United States suffer
from the effects of childhood obesity.1 Nationwide data from 2003-2004 shows
that “an estimated 17 percent of children and adolescents ages 2-19 years are
overweight.”2 Governor Schwarzenegger, with his extensive background in
physical fitness,3 has emphasized the importance of physical education in
California schools, and, along with the Legislature, has devised a plan to combat
childhood obesity.4 It was therefore no surprise that early in his tenure, the
Governor signed into law legislation requiring high school students to meet
specific fitness criteria in order to waive the requirement of physical education as
part of their curriculum.5 The law was well intentioned, but lacked the clarity for
schools to properly follow its procedures.6 In response, the State Legislature
enacted Chapter 32, which clarifies the specific standards students must meet to
qualify for a physical education waiver.7
1. See, e.g., National Center for Health Statistics, Prevalence of Overweight Among Children and
Adolescents: United States, 2003-2004, Jan. 30, 2007, http://www.cdc.gov/nchs/products/pubs/pubd/hestats/
overweight/overwght_child_03.htm (on file with the McGeorge Law Review) (listing statistics that demonstrate
increasing levels of childhood obesity across the United States).
2. Id.
3. See generally Office of the Governor, About Arnold, http://gov.ca.gov/about/arnold (last visited July
21, 2008) (on file with the McGeorge Law Review) (describing Governor Schwarzenegger’s background in
physical fitness).
4. See The Governor’s Council on Physical Fitness, About the Council, http://www.calgovcouncil.org/
about_the_council/ (last visited July 21, 2008) (on file with the McGeorge Law Review) (detailing Governor
Schwarzenegger’s plan to promote physical activity amongst California children).
5. ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS of SB 602, at 3 (June 4, 2008).
6. See id. (“While SB 601 was on the Governor’s Desk pending action, the Administration discovered
important technical clean-up that was necessary for the implementation of SB 601.”).
7. CAL. EDUC. CODE § 51241 (amended by Chapter 32).
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II. BACKGROUND
In 2003, the State Legislature amended the California Education Code to
require students to pass a physical fitness test to be eligible for a waiver from
physical education classes in high school.8 The California State Board of
Education9 chose the Fitnessgram test to determine students’ physical fitness.10
This test measures physical fitness in six categories: the one-mile run, a twentymeter Progressive Aerobic Cardiovascular Endurance Run (PACER), a one-mile
walk, curl-ups, a skinfold measurement, and the body mass index.11 The
Fitnessgram’s measurements are scientifically designed to measure physical
health, not athletic ability.12 In this manner, students who are natural athletes do
not gain an unfair advantage over other students.13 In 2003, the California
Department of Education implemented testing in public schools.14
The law, however, was unclear regarding what a student must do to meet the
passing requirement.15 Therefore, in 2007, the Legislature further clarified the
law by amending the Education Code to allow the Office of the County
Superintendent of Schools (OCSS) 16 in each county to grant a temporary twoyear waiver of physical education in grades 10-12 for students who satisfactorily
complete “any” five of the six Fitnessgram test categories.17
8. ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 2 (June 4, 2008).
9. See CAL. EDUC. CODE § 60800 (West 2003 & Supp. 2008) (delegating authority to administer the
testing to the Department of Education).
10. See Press Release, California Department of Education, State Schools Chief Jack O’Connell
Releases Eighth Annual Physical Fitness Test Results (Dec. 6, 2007), available at http://www.cde.ca.gov/ta/tg/
pf/documents/pftnewsrelease.doc (on file with the McGeorge Law Review) (stating that pursuant to state law,
the State Board of Education chose the Fitnessgram test).
11. See California Department of Education, Fitnessgram Healthy Fitness Zones (2008-2009),
http://www.cde.ca.gov/ta/tg/pf/documents/healthfitzone08.pdf (last visited Nov. 21, 2008) (on file with the
McGeorge Law Review) (“[The] criterion-referenced standards established by The Cooper Institute of Dallas,
Texas, represent minimum levels of fitness that offer protection against the diseases that result from sedentary
living . . . .”).
12. The Cooper Institute, Frequently Asked Questions, http://cooperinst.org/products/grams/questions.
cfm (last visited Oct. 10, 2008) (on file with the McGeorge Law Review).
13. See id. (“[The Fitnessgram] focus[es] on guidelines for health and personal improvement rather than
attaining [an] unrealistic performance based standard.”).
14. See ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 2 (June 4, 2008)
(“[The 2003 Amendment] required students to ‘pass’ the Fitnessgram in order to be exempt from physical
education for a period of two years in grades 10-12.”).
15. See id. at 3 (“[The 2007 Amendments] clarified the law by removing the requirement that students
‘pass’ the Fitnessgram and instead required that students ‘meet satisfactorily any five of the six standards’ of the
Fitnessgram . . . .”).
16. Each of California’s 58 counties has an Office of the Superintendent, which provides a management
role for the schools of each county’s various school districts. See Sacramento County Office of Education,
http://www.scoe.net/ (last visited Oct. 6, 2008) (on file with the McGeorge Law Review) (“The Sacramento
County Office of Education (SCOE) is one of 58 county offices of education in the State of California. SCOE
plays a vital rule in providing technical assistance, curriculum and instructional support, staff development,
legal and financial advice, and oversight to Sacramento County school districts.”).
17. CAL. EDUC. CODE § 51241 (West Supp. 2008).
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Because the 2007 Amendment stated that students must pass “any” five of
six categories, the law could have been interpreted as allowing students to skip
the sixth category upon passing the first five.18 As a result of this confusion,
Governor Schwarzenegger issued a signing statement on the law,19 which stated
that further clarification by the Legislature was necessary.20 Responding to the
Governor’s concerns, the Legislature enacted Chapter 32, which aims to clarify
portions of prior law.21
III. CHAPTER 32
Chapter 32 allows the OCSS or the school district’s governing board to grant
a two-year waiver of physical education classes for students who pass “at least”
five of the six Fitnessgram categories.22 By stating unequivocally that students
must pass “at least” five of the six categories, the legislature clearly articulated
that students must attempt to pass the entire test,23 thus underscoring the
importance of physical education in California schools.24
IV. ANALYSIS
Because Chapter 32 further amends and clarifies the 2007 Amendment,25 it is
best understood in conjunction with that prior law. The 2007 Amendment
established physical education incentives for public schools with the purpose of
combating childhood obesity.26 The Legislature initially passed the amendment
with the intention that, absent extenuating circumstances, students excused from
physical education had already exhibited an adequate level of health.27 The
school district’s governing board or the OCSS could still grant a waiver for other
reasons, such as injury or illness.28 Therefore, if a student could not pass the test
and exhibit a satisfactory level of health, the school was, and is, statutorily
prohibited from granting a waiver from physical education.29 These standards
18. ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 3 (June 4, 2008);
CAL. EDUC. CODE § 51241 (West 2003 & Supp. 2008).
19. Governor Schwarzenegger indicated when he signed the 2007 Amendment into law that while he did
not want to veto it, he also was displeased with the specific language of the new law. ASSEMBLY COMMITTEE
ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 3 (June 4, 2008).
20. Id. at 3.
21. CAL. EDUC. CODE § 51241 (amended by Chapter 32).
22. Id.; ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 2 (June 4, 2008).
23. CAL. EDUC. CODE § 51241(e) (amended by Chapter 32).
24. Id. §51241 (amended by Chapter 32).
25. See ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 2 (June 4, 2008)
(describing the problems with previous amendments and the need for clarification).
26. CAL. EDUC. CODE § 51241 (West 2003 & Supp. 2008).
27. ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 1 (June 4, 2008).
28. Id.
29. Id.
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worked to counteract increasing childhood obesity trends by ensuring that each
student either participated in a physical education program or otherwise
maintained good health.30
Since Chapter 32 simply clarified existing law and had a negligible fiscal
effect, there is no record of any opposition.31 Various nonprofit organizations and
unions voiced support for Chapter 32.32 For example, the California Association
for Health, Physical Education, Recreation, and Dance stated that Chapter 32
“‘provide[s] opportunities for evaluating physical education practices; and,
establish[es] quality instructional programs.’”33
Most schools probably already realized the intended meaning as pronounced
in the 2007 Amendment—that passing “any” five of six Fitnessgram categories
require that the student take the entire test.34 However, in response to the
Governor’s request for clarification, Chapter 32 removes all ambiguity and
leaves no room for interpretation.
Regardless of how schools interpreted prior law, Chapter 32 continues the use of
a Fitnessgram test, which has thus-far proved effective.35 As previously stated, there
are six components to the Fitnessgram test,36 and these separate tests are combined to
measure aerobic capacity, body type, and strength, while taking into account the
individual student’s physical traits.37 In 2007, ninth grade students showed a 2.7
percent increase in Fitnessgram scores.38 Nonetheless, the statistics also show that
schools have a long way to go; a majority of students are still unable to pass the test
at what is considered a healthy level.39
With school budgets strained across the nation, and many schools dependent on
increased standardized test scores to receive funding, administrators are often forced
to cut programs such as physical education as a cost-saving measure.40 Federal laws,
such as No Child Left Behind, mandate that a school meet certain testing criteria to
30. See id. (allowing for temporary and permanent waivers of physical education only under specific and
limited circumstances).
31. See id. (listing no known opposition to SB 602).
32. See id. at 2 (listing the various supporters of SB 602).
33. Id.
34. See CAL. EDUC. CODE § 51241 (West Supp. 2008) (stating the requirements in a somewhat
ambiguous way).
35. See Press Release, California Department of Education, supra note 10. (outlining improvements in
physical fitness scores).
36. See supra Part II.
37. Id.
38. Press Release, California Department of Education, supra note 10.
39. See id. (“‘While I’m pleased these numbers are moving in the right direction,’ O’Connell said, ‘this
annual fitness test serves as an important reminder to all of us that the majority of our students are not in good
physical shape.’”).
40. See Helyn Trickey, (o Child Left Out of the Dodgeball Game?, CNN, Aug. 24, 2006, http://www.
cnn.com/2006/HEALTH/08/20/PE.NCLB/index.html (on file with the McGeorge Law Review) (describing how
most states forego physical education due to a focus on increasing test scores in light of budget and time
constraints).
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continue to receive federal funding.41 This requirement often forces schools to focus
on in-classroom learning at the expense of physical education, thereby exacerbating
the trend of increasing childhood obesity stemming from children’s increasingly
sedentary lifestyles.42 This is reflected in national statistics showing that participation
in high school physical education has declined over the past several years, coinciding
with the percentage of overweight children tripling over the same time period.43
California remains one of the few states that mandates physical education in its
schools.44 While the effectiveness of the physical education program has been fairly
modest to date,45 the statistics do show measurable improvement.46 Although there is
still much work to be done in this arena, this incremental progress is a positive
measure of California public schools’ implementation of physical fitness programs.47
V. CONCLUSION
Chapter 32 clarifies the California Education Code by eliminating any confusion
regarding what requirements a student must meet to gain an exemption from physical
education classes.48 Chapter 32 aims to meet the Governor’s and Legislature’s goal
of reducing childhood obesity by ensuring that students meet a minimum level of
physical fitness before procuring a waiver from physical education.49 Specifically,
students requesting a waiver from physical education must attempt to pass the entire
Fitnessgram test as well as successfully complete at least five of the six categories,
thus guaranteeing that California’s high school students have some measure of
physical activity in their lives.50
41. Id.
42. See id. (finding various reasons for more children being considered overweight).
43. See Centers for Disease Control and Prevention, Participation in High School Physical Education—
United States, 1991-2003, http://www.cdc.gov/mmwr/preview/mmwrhtml/mm5336a5.htm (last visited Jan. 6,
2009) (on file with the McGeorge Law Review) (finding that overall participation in physical education declined
from 1981-2003, that the percentage of overweight children tripled over the same time frame, and
recommending that students participate in physical education to increase health).
44. Id.; CAL. EDUC. CODE § 51241 (West Supp. 2008).
45. See Press Release, California Department of Education, supra note 10 (outlining improvements in
physical fitness scores).
46. Id.
47. Id. (noting that there has been progress in the promotion of healthy lifestyles).
48. ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 602, at 2 (June 4, 2008).
49. Id.
50. See id. (stating the bill’s intention to clarify the prior law).
343
Chapter 578: Reducing the Discretion of the California
Commission on Teacher Credentialing
Rebecca Rabovsky
Code Sections Affected
Education Code §§ 44423.5, 44423.6 (new).
SB 1110 (Scott); 2008 STAT. Ch. 578.
I. INTRODUCTION
In 2007, the Associated Press (AP) conducted a seven-month investigation
into educator misconduct at public schools throughout the nation.1 Reporters
found story after story of young students who were sexually harassed,
inappropriately touched, and even raped.2 The perpetrators, while of various ages
and backgrounds, all had one thing in common: they were educators in the public
school system.3 The investigation revealed that twenty-five percent of
disciplinary actions against educators were a result of sexual misconduct.4 It
further found that between 2001 and 2005, 2,570 educators had their credentials
“revoked, denied, surrendered, or sanctioned” due to allegations of sexual
misconduct.5
In California alone, school administrators suspended or revoked the
credentials of 313 educators for sexual misconduct between 2001 and 2005.6 The
AP determined that, while some states were taking steps to prevent such
incidents, loopholes still existed in California law that increased the chances of
student exposure to teachers with a history of sexual misconduct.7 In response to
these findings, and to “strengthen the state’s ability to protect children from
educators who have engaged in serious misconduct,” Senator Jack Scott
introduced SB 1110.8 Later enacted as Chapter 578,9 it closes the loopholes in
California law that were identified in the AP investigation.10
1. Martha Irvine & Robert Tanner, Sex Abuse a Shadow over U.S. Schools, EDUC. WEEK, Oct. 24, 2007,
at 16 (on file with the McGeorge Law Review).
2. Id. at 1.
3. Id.
4. SENATE COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 1110, at 3 (Mar. 26, 2008).
5. Id.
6. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 3 (Apr. 16, 2008).
7. Irvine & Tanner, supra note 1, at 19 (“More states now require background checks on teachers,
fingerprinting, and mandatory reporting of abuse, but there are still loopholes and a lack of coordination among
districts and states.”); SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 3-4 (Apr. 16, 2008) (describing
the loopholes, identified by the AP, that SB 1110 would close).
8. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 3 (Apr. 16, 2008).
9. CAL. EDUC. CODE §§ 44423.5, 44423.6 (enacted by Chapter 578); SB 1110 Complete Bill History (2008),
http://www.leginfo.ca.gov/pub/07-08/bill/sen/sb_101-1150/sb_1110_bill_20080929_ history.html (on file with the
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McGeorge Law Review / Vol. 40
II. BACKGROUND
A. Educator Discipline in California
The California Commission on Teacher Credentialing (CTC)11 is required to
privately admonish, publicly reprove, revoke, or suspend for immoral or
unprofessional conduct, or for persistent defiance of, and refusal to obey, the
laws regulating the duties of persons serving in the public school system, or for
any cause which would have warranted the denial of an application for a
credential or the renewal thereof, or for evident unfitness for service.12 The
CTC’s actions on a credential13 depend on the nature of the alleged incident.14
Certain offenses require the CTC to deny or revoke a credential.15 For
example, if an individual has been convicted of a certain sex offense16 or
controlled substance offense,17 has been found legally insane or determined to be
a sexual psychopath,18 or has been convicted of a violent or serious felony,19 the
credential must be revoked or denied.20 For acts or omissions outside these
categories, the CTC has more discretion regarding what type of action to take on
an educator’s credential, if any.21
The CTC sends allegations of educator misconduct to the California
Committee of Credentials (Committee), which is a seven-member disciplinary-
McGeorge Law Review).
10. Id.
11. The CTC was created in 1970 to act as a state standards board for the preparation of educators
employed in California’s public schools. California Commission on Teacher Credentialing, About the
Commission, http://www.ctc.ca.gov/commission/about.html (last visited Jan. 30, 2009) (on file with the
McGeorge Law Review).
12. CAL. EDUC. CODE § 44421 (West 2006).
13. A basic teaching credential, issued by the CTC after certain minimum requirements are met,
“authorizes the holder to teach the subjects named on the credential.” Id. § 44203(e)(1)-(2) (West 2006).
14. See California Commission on Teacher Credentialing, Educator Discipline FAQs, http://www.ctc.ca.
gov/educator-discipline/DPP-FAQ.html (last visited Jan. 30, 2009) [hereinafter Discipline FAQs] (on file with
the McGeorge Law Review) (explaining the different actions that the CTC may take on a credential).
15. CAL. EDUC. CODE § 44346 (West 2006); see also Discipline FAQs, supra note 14 (providing a
summary of the types of misconduct that require the CTC to “automatically deny or revoke” an educator’s
credential).
16. CAL. EDUC. CODE § 44010 (West 2006) (providing the definition of sex offense). This also applies if
an individual must register as a sex offender pursuant to either (1) Penal Code section 290, or (2) “[a] law of
any other state or of the United States when the underlying offense, if committed or attempted in this state,
would require registration as a sex offender under Section 290 of the Penal Code.” Id. § 44346.
17. Id. § 44011 (providing the definition of controlled substance offense).
18. Id. § 44346 (providing the definition of sexual psychopath).
19. Id. § 44424 (providing the definition of a violent or serious felony).
20. See id. §§ 44346(b)(1), (c)-(d), 44346.1(d) (describing exceptions to mandatory revocation or
denial).
21. See Discipline FAQs, supra note 14 (describing the types of misconduct that require an adverse
action as compared to types of misconduct that only require a review by the Committee).
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review board.22 The Committee reviews allegations and makes a
recommendation to the CTC regarding what action to take on the credential at
issue.23 The nature of allegations vary, and the CTC usually receives them from
sources including, but not limited to, the Department of Justice, affidavits from
persons with knowledge of the alleged misconduct, and the educator’s
employer.24 The CTC may revoke a credential in circumstances including an
addiction to controlled substances, commission of an act involving moral
turpitude, or revocation of a certification document.25
When the Committee first receives an allegation, it commences an initial
review to determine if probable cause exists for an adverse action on an
educator’s credential.26 If probable cause does exist, the Committee, at the
application of the credential holder or applicant, begins an adjudicatory hearing.27
At the close of the adjudicatory hearing, the Committee determines what type of
action to take on the credential and reports its findings and recommendations to
the CTC.28
During the Committee’s review, an educator maintains his or her credential.29
After the review, the Committee’s findings are available to school districts on
request within one year of the Committee’s recommendation.30 An educator
whose credentials have been revoked or suspended may petition the CTC for
reinstatement of the credential no less than one year after the date of revocation.31
22. Id.
23. CAL. EDUC. CODE § 44242.5(e) (West 2006 & Supp. 2009).
24. Id. (listing sources that provide information to the CTC regarding an educator’s misconduct).
25. Id. § 44345 (West 2006) (listing acts or omissions that constitute educator misconduct that lead to a
discretionary review).
26. Id. § 44242.5(c)(3).
27. Id. § 44242.5(c)(3)(B). If the credential holder does not request an administrative hearing within the
requisite time period, then the Committee’s recommendations may be adopted by the CTC without further
proceedings. Id. § 44244.1.
28. Id. § 44242.5(e)(1).
29. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 3 (Apr. 16, 2008).
30. CAL. EDUC. CODE § 44242.5(e)(2) (West 2006 & Supp. 2009). The school districts to whom this
information is available are the district of employment or last known employment of the credential holder, or a
district that is “providing verification that a credential holder has applied for employment in the district.” Id.
31. Discipline FAQs, supra note 14.
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B. The 2007 AP Investigation
The AP published a series of articles in 2007 relating to educator misconduct
in the nation’s public schools.32 The articles were based on a nationwide
investigation that examined the differing procedures in each state regarding
allegations of educator misconduct.33 While the AP was “generally favorable” to
California’s procedures, it did identify certain loopholes in the system.34
The AP’s reporters first researched records of adverse actions on educator
credentials in each state from 2001 to 2005, and then examined which adverse
actions were based on sexual misconduct.35 The AP found that during this time
period, a total of 2,570 educators nationwide were punished for sexual
misconduct.36 The victims included 1,801 young people, 1,467 of which were
students.37 Four hundred and forty-six cases involved educators who had multiple
victims.38
The investigation also revealed a lack of coordination among districts and
states that allowed educators with a history of sexual misconduct to remain in
classrooms.39 The study found that teachers accused of sexual misconduct often
make a deal with a school district to “leave quietly” and the district takes no
action at all on the credential.40 Similarly troubling, while a state licensing board
may take an adverse action on a credential for sexual misconduct, the record’s
description of the reason for punishment is extremely vague, leaving future
employers in the dark as to why a teacher was punished.41 This was an especially
pronounced issue in California at the time of the investigation—the AP found
that 2,000 California teachers were punished under the broad category, “general
misconduct.”42 It took more investigative research to discover that over 300 of
these teachers were punished specifically for sexual misconduct.43
32. E-mail from Mary C. Armstrong, General Counsel, Cal. Comm’n on Teacher Credentialing, to
author (May 30, 2008, 09:58:00 PST) [hereinafter Armstrong E-mail] (on file with the McGeorge Law Review).
33. Overview: How the Project Unfolded, EDUC. WEEK, Oct. 24, 2007, at 16 (on file with the McGeorge
Law Review).
34. Armstrong E-mail, supra note 32.
35. Overview: How the Project Unfolded, supra note 33.
36. Irvine & Tanner, supra note 1, at 16. The punishment consisted of the educators having their
credentials “revoked, denied surrendered, or sanctioned.” Id.
37. Id. “Educators made physical contact in at least 1,297, or 72 percent, of the cases in which the
victims were youths.” Id. at 17.
38. Id.
39. Id. at 19.
40. Id. at 18.
41. Id. at 19.
42. Juliet Williams, Calif. Teacher-Records Laws Help Hide Details in Cases of Sex-Related
Misconduct: Past Misdeeds may be Off-Limits to Other Districts, EDUC. WEEK, Oct. 24, 2007, at 19 (on file
with the McGeorge Law Review).
43. Id.
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Other aspects of the California system are also problematic.44 Not only are
the discipline records vague, they are often only available to school officials
during a one-year window.45 Additionally, if an educator has pled “no contest” to
a charge, the CTC may not disclose the reason for his or her disciplinary action.46
The investigation also revealed that a California educator who is under review by
the CTC for having a credential revoked in another state may still hold a valid
California credential during the review process and remain in the classroom.47
Only a limited list of circumstances require that the CTC take an immediate
adverse action on a credential.48 Chapter 578 expands this limited list.49
III. CHAPTER 578
Chapter 578 provides two additional circumstances under which the CTC
must take action on an educator’s credential.50 First, it requires the CTC to
“suspend the credential of a holder when it receives notice that another state has
taken final action to revoke a credential or license authorizing the holder of the
license to perform any duty in the public schools of another state.”51 This
suspension only takes effect once the CTC determines that the misconduct in the
other state could also cause a revocation of the California credential and remains
in effect “until the commission takes final action” based on the Committee’s
review and recommendation.52
Second, Chapter 578 requires the CTC to revoke a credential when it
receives notice that either (1) the credential holder’s ability to “associate with
minors has been limited as a term or condition of probation or sentencing
resulting from a criminal conviction” anywhere in the United States,53 subject to
certain limitations,54 or (2) the holder “has been ordered to surrender a credential
or certification document as a term or condition of probation or sentencing
resulting from a criminal conviction” anywhere in the United States.55 In both
circumstances, an individual whose credential has been revoked cannot reapply
44. See id. (explaining why the California system of teacher records is flawed).
45. Id.
46. Id. Pleas of no contest are “a common legal agreement that allows a person to avoid a trial or civil
liability, but still leads to conviction.” Id.
47. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 3 (Apr. 16, 2008).
48. Id. at 1-2.
49. See id. at 1 (describing how Chapter 578 adds to the scenarios where the CTC must take an adverse
action on a credential).
50. Id.
51. CAL. EDUC. CODE § 44423.5(a) (enacted by Chapter 578).
52. Id.
53. Id. § 44423.6(a)(1) (enacted by Chapter 578).
54. Id § 44423.6(a)(2) (enacted by Chapter 578) (stating that § 44423.6(a)(1) “shall not apply to a
conviction based solely on violating an order as set forth in subdivision (a) of Section 273.6 of the Penal
Code”).
55. Id. § 44423.6(b) (enacted by Chapter 578).
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for reinstatement of his or her credential until the terms or conditions of the
conviction are satisfied.56
IV. ANALYSIS
A. Chapter 578’s Changes to Current Law
In enacting Chapter 578, the California Legislature addressed growing
concerns regarding educator misconduct in California public schools highlighted
by the AP investigation.57 Unless an offense falls under a relatively narrow
category of circumstances, the action the CTC may take on an educator’s
credential for misconduct is largely discretionary.58 When the Committee finds
that an educator has engaged in misconduct, the CTC often has the discretion to
decide whether it will “privately admonish” or “publicly reprove” the educator,
or suspend or revoke his or her credential.59 Chapter 578 provides that, when
certain types of allegations or convictions relating to an educator are brought to
the CTC’s attention, the CTC must take an immediate adverse action on the
credential.60
A major focus of Chapter 578 relates to out-of-state credential revocations.61
Prior to Chapter 578, if the CTC received notice that a credential holder’s license
had been revoked in another state, the Committee reviewed the matter and the
educator maintained his or her credential in the meantime.62 Chapter 578 requires
that when an educator’s credential has been revoked in another state, his or her
credential must be suspended while the Committee considers what final action to
take.63 The CTC usually discovers information regarding out-of-state credential
revocation from the National Association of State Directors of Teacher Education
and Certification (NASDTEC)64 or from an affirmative answer to a fitness
question on an application for credential renewal.65
56. Id. § 44423.6(c) (enacted by Chapter 578).
57. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 3 (Apr. 16, 2008) (explaining that the “need
for the bill” is based on the 2007 Associated Press study which “revealed that between 2001 and 2005, 313
California educators had their credential suspended or revoked as a result of sexual misconduct”).
58. See CAL. EDUC. CODE § 44345 (West 2006) (stating that the CTC “may” deny the issuance or the
renewal of a credential under many circumstances).
59. Id. § 44421.
60. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 2 (Apr. 16, 2008).
61. See id. at 3 (explaining the AP investigation and out-of-state credential revocations).
62. Id.
63. Id. at 1, 3. However, this mandatory suspension only applies if the reason for the out-of-state
revocation is based on misconduct that would “be a cause for revocation in California.” Id. at 3.
64. NASDTEC represents all professional standards boards, commissions, and state departments of
education nationwide. National Association of State Directors of Teacher Education and Certification,
NASDTEC General Information, http://www.nasdtec.org/about.tpl (last visited Aug. 17, 2008) (on file with the
McGeorge Law Review).
65. California Commission on Teacher Credentialing, Background Information on SB 1110 (Scott)
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In the event of a criminal conviction, if the CTC receives notice that the
terms of an educator’s probation limit contact with minors or requires the
individual to surrender credentialing or certification documents, Chapter 578
requires that the CTC automatically revoke the credential.66 Prior to Chapter 578,
if an educator was initially charged with a crime that required the revocation or
suspension of a credential, but then plea-bargained it down to a lesser offense
with terms of probation that limited contact with minors, the CTC could not
suspend or revoke the credential until the Committee conducted an often lengthy
discretionary review.67 In addition, while prior law allowed application for
reinstatement of the credential one year after the date of revocation, Chapter 578
only allows reinstatement after the terms of probation have been lifted.68
Prior to Chapter 578, if the CTC received notice of restrictive probation
terms or out-of-state credential revocation, the CTC sent the issue over to the
Committee for review.69 Throughout the review process, including appeal, the
educator could keep his or her California credential.70 After an educator
requested an appeal, the administrative process usually lasted two to three
years.71 By requiring a mandatory adverse action on an educator’s credential
under certain circumstances, Chapter 578 removes educators from the classroom
who would otherwise remain teaching during the administrative review process.72
Chapter 578’s proponents include the California School Boards Association,
which argues that Chapter 578 will make California schools safer by “expediting
the removal” of teachers whose credentials have been revoked out of state or
have convictions limiting contact with minors.73 According to the CTC, a sponsor
of Chapter 578, eliminating an often lengthy discretionary review allows the
CTC to better “evaluate and monitor the moral fitness of credential . . . holders
and take appropriate action” by removing questionable educators from the
classroom.74
The only opposition to Chapter 578 came from the California Teacher’s
Association (CTA).75 One point of contention is the provision regarding
mandatory revocation of credential when an educator has a conviction limiting
(2008) [hereinafter CTC Bill Information] (on file with the McGeorge Law Review).
66. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 2 (Apr. 16, 2008).
67. ASSEMBLY FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 2-3 (July 31, 2008).
68. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 2 (Apr. 16, 2008).
69. CTC Bill Information, supra note 65.
70. Id.
71. Id.
72. Id.
73. ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 1110, at 5 (June 18, 2008).
74. CAL. COMMISSION ON TEACHER CREDENTIALING, LEGISLATION CONCEPTS FOR COMMISSION
CONSIDERATION 6A-3 (2007), available at http://www.ctc.ca.gov/commission/agendas/2007-12/2007-126A.pdf (on file with the McGeorge Law Review).
75. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 4 (Apr. 16, 2008).
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his or her contact with minors.76 The procedure to petition the CTC for
reinstatement of a credential that has been revoked, as opposed to suspended, is
much more burdensome on the educator.77 After a credential has been revoked,
petitioning the CTC at a hearing for the reinstatement of a credential shifts the
burden of proof to the applicant to demonstrate professional fitness, refute the
revocation, and “prove satisfactory completion of sentencing, probation, or
rehabilitation.”78
Portions of Chapter 578 also invoke concerns about procedural due process.79
The U.S. Constitution prohibits state actors from “depriv[ing] any person of life,
liberty, or property, without due process of law.”80 Chapter 578 requires an
immediate adverse action on an educator’s credential when it is discovered that
the educator’s out-of-state credential has been revoked.81 A credential, which
allows for employment in public schools, is “property” under the Constitution
that would be entitled to Constitutional protections.82 However, temporarily
suspending a credential does not automatically deprive an educator of continued
employment.83 For instance, an educator whose credential is temporarily
suspended is still considered an “employee” who is entitled to Constitutional due
process requirements before the credential can be terminated.84 In this sense, a
suspension without a hearing may not necessarily violate due process.85
B. Chapter 578 in Relation to the AP Investigation
While investigating public schools throughout the nation, the AP found a
“deeply entrenched resistance toward recognizing and fighting abuse.”86
According to the AP investigation, there is a lack of cohesion among states with
regard to sharing information about educator discipline.87 Although some states
require mere allegations of sexual misconduct to be reported to a state licensing
board, there is often “no consistent enforcement” to ensure that districts comply
with these requirements.88 The AP investigation also discovered that many
76. ASSEMBLY COMMITTEE ON EDUCATION, COMMITTEE ANALYSIS OF SB 1110, at 5 (June 18, 2008).
77. Id.
78. Id. The CTA’s opposition is consistent with the findings in the AP investigation, which found that
one reason districts may be reluctant to take a disciplinary action on a credential is opposition from a “strong
[teacher’s] union.” Irvine & Tanner, supra note 1, at 19.
79. Shields v. Poway, 63 Cal. App. 4th 955, 957-59, 74 Cal. Rptr. 2d 391, 393-94 (4th Dist. 1998).
80. U.S. CONST. amend. XIV, § 1.
81. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 3 (Apr. 16, 2008).
82. See Shields, 63 Cal. App. 4th at 958, 74 Cal. Rptr. 2d at 393 (describing how the holder of a
California teaching credential has a “property interest in continued employment”).
83. Id.
84. Id. at 963, 74 Cal. Rptr. 2d at 396.
85. Id.
86. Irvine & Tanner, supra note 1, at 18.
87. Id. at 19.
88. Id.
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situations involving sexual misconduct by educators are never formally reported,
allowing educators to roam from district to district and state to state, which has
been deemed “passing the trash” or “mobile molester[s].”89 One of the major
problems in California’s system is the often vague description of why an
educator was disciplined.90
There are several underlying concerns that prevent a stronger, more
centralized system of educator misconduct.91 One reason for a lack of a cohesive
national policy and lawmakers’ hesitancy in creating tougher punishments for
educators is the “fear of disparaging a vital profession.”92 When districts allow an
educator to leave quietly, it is often for fear of potential lawsuits or facing
opposition from a teacher’s union.93 The vagueness of California’s descriptions
of certain types of disciplinary actions protects the educator’s privacy.94
While Chapter 578 appears to address the issue of creating tougher
punishments, its utility depends on criminal convictions or out-of-state credential
revocations that have been formally reported.95 One of the problems identified in
the AP investigation was the lack of formal reporting of sexual misconduct
allegations and the prevalence of allowing educators to “leave quietly” rather
than receive an adverse action on their credential.96 Despite the safeguards
provided by Chapter 578, these types of educators may still slip through the
cracks because there may be no record of any criminal convictions or adverse
actions on their credentials.97
V. CONCLUSION
The reluctance of lawmakers and school districts to create and consistently
enforce disciplinary procedures regarding educator misconduct relates to
concerns such as privacy, lawsuits, and fear of discouraging a vital profession.98
While Chapter 578’s effectiveness may depend on formal reporting of criminal
charges or misconduct, it still aims to correct specific problems identified in the
AP investigation.99 It removes educators from the classroom who have a higher
89. Id. at 18.
90. Williams, supra note 42, at 19.
91. See Irvine & Tanner, supra note 1 (explaining why the national system of educator discipline lacks
cohesion); Williams, supra note 42, at 19 (describing educator discipline enforcement problems specific to
California).
92. Irvine & Tanner, supra note 1, at 18.
93. Id. at 18-19.
94. Williams, supra note 42, at 19.
95. See CTC Bill Information, supra note 65 (explaining how the CTC receives notice of out-of-state
credential revocation or criminal convictions).
96. Irvine & Tanner, supra note 1, at 18.
97. See generally id. (explaining the reluctance of many school districts to formally report allegations of
misconduct).
98. Id.
99. See CTC Bill Information, supra note 65 (explaining how SB 1110 will close loopholes found in the
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risk of exposing students to sexual misconduct, rather than allowing them to
remain in the classroom during a discretionary review by the Committee.100 By
addressing the most recently publicized issues relating to educator misconduct,
Chapter 578 balances the interests of educators with growing concerns about
student safety.101
Associated Press investigation that are unique to California).
100. SENATE FLOOR, COMMITTEE ANALYSIS OF SB 1110, at 1-3 (Apr. 16, 2008).
101. Id. at 3.
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