California Association of Private School Organizations 

CAPSO Midweek E-Mailer 

April 4, 2012 Volume 5, Number 12
In This Issue

-- State Supreme Court Rules in Quarry v. Doe 1

-- A Great New Resource

-- Quick Takes

-- Hope and Disillusionment in D.C.

-- Publication Note and Holiday Wishes

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State Supreme Court Rules in Quarry v. Doe 1
CAPSO Logo GIF

In a 5-2 ruling, the California Supreme Court has reversed an Appellate Court decision in a case of considerable interest to California's private school community. At issue in Quarry v. Doe 1 was the ability of victims of childhood sexual molestation to advance previously time-barred claims against a third-party after discovering many years in the future that their adult psychological injuries resulted from the childhood abuse.  The Court's March 29 ruling prohibits the revival of such previously time-barred claims.

 

Chief Justice Tani Cantil-Sakauye authored the Court's opinion, with Justices Marvin Baxter, Ming Chin, Joyce Kennard and Kathryn Werdegar concurring.  Dissenting opinions were authored by Justices Carol Corrigan and Goodwin Liu.   

 

The Court's opinion, together with the two dissents, can be found, here.    

 

The case involved six brothers who alleged that they had suffered adult injuries as a result of acts of abuse said to have occurred in the early 1970's.  The brothers claimed that they had not made the connection between their adult injuries and the alleged childhood abuse until meeting with a mental health practitioner in 2006.   

 

The case is both morally and legally complex.  From a moral perspective, it calls for appropriate balance between two desirable-but-conflicting considerations: the right of a victim of childhood abuse to pursue justice, and the right of a third-party to reasonably defend itself against decades-old claims that had previously lapsed under a prior statute of limitations.  Sensitive to such conflicting demands, Chief Justice Cantil-Sakauye wrote: "The Legislature was aware that it was striking a balance between the strong interest of victims of abuse in redress of grievous injury and the burden on third party defendants - who may have discarded records in reliance on prior law and lost access to witnesses - of being required to defend stale claims."

 

CAPSO filed an Amicus Curiae brief in the case in which we cited various consequences we regarded as both deleterious and unjust had "the open-ended circumvention of the statute of limitations for all claims time barred prior to 2003" been allowed to stand.  The Court's decision appeared to take note of such concerns in noting that, "Individuals, as well as businesses and other enterprises ordinarily rely upon the running of the limitations period: 'The keeping of records, the maintenance of reserves, and the commitment of funds may all be affected by such reliance... To defeat such reliance...deprives [enterprises] of the ability to plan intelligently with respect to stale and apparently abandoned claims.'"

 

From a purely legal point of view, the Court was required to determine whether Section 340.1 of the California Code of Civil Procedure permits the reinstatement of previously time-barred claims.  In 2002, the Legislature created a one-year "window" during which previously time-barred claims against third-parties relating to alleged acts of child abuse could be revived.  The dissenting justices in Quarry argued that the Legislature could not have intended for such a "window" to apply to potential plaintiffs whose basis for making claims was, of yet, unknown.  To this argument, the prevailing opinion replied, "...we have not been able to identify in the language of the statute an intent to do anything else."   

 

CAPSO expresses its thanks to all those who represented our position, both persuasively, and sensitively. 

A Great New Resource: "An Administrator's Guide to California Private School Law"
CAPSO Logo GIF Our friends at the Liebert Cassidy Whitmore law firm have produced what should quickly become an indispensable resource for California private school administrators and trustees.  An Administrator's Guide to California Private School Law is a well organized, easy to read, and eminently useful compendium than does much more than simply present relevant statutes and regulations.

The tome was painstakingly organized and written by a team of attorneys who spend a considerable amount of time conducting highly interactive legal training workshops for private school leaders...to the point where they think much the same way as their audience.  And that's the key that is sure to make their groundbreaking volume a hands-down, hands-on hit.

The authors, all experienced attorneys with expertise in school law and extensive experience working with and defending private schools, provide clear explanations of the relevant laws and regulations, provide examples, checklists, charts, sample documents, case law references, and loads of practical guidance.  Would you like to see a checklist for preserving at-will employment?  Need to know what wages are payable upon termination, what inquiries are impermissible prior to a conditional offer of employment, which employees are eligible for leaves of absence, how international travel waivers differ from domestic travel waivers, or the answers to countless other questions with which you deal day-in and day-out?  The answers are likely to be found here.  As you page your way through the book you will, no doubt, find yourself murmuring, why didn't this exist when I started my job?! 

The work is organized into the following 15 sections:
  1. Introduction
  2. Governance Documents
  3. Hiring
  4. Employment Contracts and Separation of Employees
  5. Employee Evaluations
  6. Wage and Hour Laws
  7. Recognizing and Preventing Discrimination
  8. Leaves and Absences
  9. Student Applications and Enrollment Contracts
  10. Student Discipline
  11. Pupil Records
  12. Off-Campus Activities
  13. Mandated Reporting
  14. Intellectual Property
  15. Privacy
An Administrator's Guide to California Private School Law is available for purchase here.  It will quickly become one of your most oft-used references.  CAPSO congratulates the LCW team on a noteworthy accomplishment that will be of inestimable value to California's private school community.

Quick Takes 
Read the CAPE Outlook!

This month's edition of the CAPE Outlook newsletter  contains commentary on a recently released report from the Council on Foreign Relations in which a 30-member panel headed by former New York City Schools Chancellor Joel Klein and former U.S. Secretary of State Condoleezza Rice identified K-12 school choice as a key prescription for education reform.  The April, 2012 edition of the newsletter, which is available in PDF format, here, also contains a synopsis of presentations made by Friedman Foundation for Educational Choice President and CEO Robert Enlow, and Institute for Justice Senior Attorney Richard Komer at a recent, joint meeting of CAPE's board of directors and the State-CAPE Network.  Readers will also find comments on President Obama's proposed de-funding of the nation's only existing federally funded school voucher program, and more. 

CAPSO is the California state affiliate of the Council for American Private Education.


Opportunity Schools Announces Program

Opportunity Schools is a nonprofit organization committed to "unlocking hidden potential in students with learning challenges and private school teachers by providing curriculum, consulting, and professional development."  The organization presents a summer Teacher Training Institute which will take place June 18-22, 2012 at the Bethany School, 2244 Clark Ave., Long Beach 90815.  The Institute features three workshops which can be attended individually, or as part of a package: Brain Matters: Translating Research into Classroom Practice will be presented by Pat Wolfe.  Effective Math Investigations for the Mind will be conducted by Vicki Newman. Vocabulary: A Key Ingredient in Reading Success will be taught by Shirley Owens.  A program brochure and registration form can be accessed, here.


Study Alleges UC Political Bias

A study conducted by the California Association of Scholars alleges that the politicization of the University of California has produced deleterious effects on the quality of education and research throughout the state's flagship university system.  The study, titled, "Crisis of Competence: The Corrupting Effect of Political Activism in the University of California," presents evidence that political activism, "...sharply lowers the quality of academic teaching, analysis and research.  Its authors add, however, that their "...concern is not with political opinions or bias per se, but rather with the associated question of competence and quality of education."  As reported in the Los Angeles Times, UC Provost Lawrence Pitts disputed the study's findings, arguing that the University's reputation for scholarship "...would not be possible if our faculty were doctrinaire and not subject to having their work forged in the marketplace of ideas."  From the perspective of the study's authors, however, the relevant "marketplace of ideas" suffers from the same ailment as the UC system.  A PDF copy of the study can be accessed, here.


ADSE Summer Institute Schedule

Alternative Designs for Special Education has announced its annual listing of Summer Institute programs, as follows:

June 11-15, 2012 - Colorado Christian University, Lakewood, CO

June 18-22, 2012 - Fresno Pacific University, Visalia, CA & Virtual Online Video Streaming

July 23-27, 2012 - Pepperdine University, Malibu, CA

August 13-17, 2012 - Virtual Summer Institute for Missionary Schools, Online Video Streaming

Click on the above links to access additional information about each program including seminar flyers and registration forms.  Alternative Designs for Special Education empowers private school educators and parents to effectively serve and support students with special needs.


Still Going Strong

Finally, here's a wonderful video clip of an NBC Nightly News segment spotlighting a teacher in a Chicago Lutheran School.  What distinguishes Olivia Neubauer is that she commenced her teaching career in 1935.  That's right, 1935!  The much beloved Mrs. Neubauer, continues to teach kindergarten and reading at the school she founded, Ashburn Lutheran School.  In the two-minute video, which may just bring a tear to your eye, you'll see Mrs. Neubauer's students joining her in celebrating her 100th birthday. 

Hope and Disillusionment in D.C.
CAPSO Logo GIF Each March I travel to Washington, D.C. to participate in a series of meetings coordinated by the Council for American Private Education (CAPE).  The meetings typically commence with a day-long gathering of executives of state organizations (CAPSO being one) that, collectively, comprise a national network.  Each of us reports on accomplishments, challenges, trends, legislative, administrative and judicial developments that have implications for the national private school community.  Key issues are identified and discussed.  Practical tips for doing our jobs better are shared.  This year, a portion of our time was devoted to a discussion of key findings emerging from the Cardus Education Survey.

The morning of the second day features a joint meeting with CAPE's board of directors.  Here, we have the opportunity to distill the salient elements of the previous day's discussions in the form of a series of briefs, hear presentations from distinguished guests, and engage in the fashioning and coordination of policy.  This year's meeting featured two engaging speakers: Robert Enlow, President and CEO of the Friedman Foundation for Educational Choice, and Dick Komer, Senior Attorney at the Institute for Justice.

During the afternoon of the second day, while the CAPE board conducts the business portion of its meeting, my State-CAPE colleagues and I head to the U.S. Department of Education to meet with the staff of the Office of Nonpublic Education and other USDE colleagues.  The purpose of these well-organized and always-useful meetings is to keep us abreast of emerging developments in federal programs, legislation, regulations and guidance, familiarize us with various resources, and answer our questions concerning the implementation of federal education laws. 
 
On the final morning of our time together we convene in the Capitol, where we receive a series of briefings from legislators and staff, and have an opportunity to air concerns and present ideas.  This year, Congress was in recess at the time of our meeting, so we heard from staffers, only.  (They're the ones who actually run the place, and I'll have more to say about them, shortly.)
 
Reflecting on the proceedings while flying back home, I quickly decided on two high-points and a low-point.  The first high-point remains constant from year to year.  The greatest of all pleasures derived from my work is that the people with whom and for whom I work are simply the best.  The accompanying high-point was the recognition that school choice programs are burgeoning across the country.

In the past year, alone, 13 states enacted 19 pieces of school choice legislation.  Of these, 8 brought new programs into existence, and 11 expanded the parameters of existing arrangements. Some form of school choice (involving private school options) now exists in nearly 40 percent of the states, and over 200,000 children now use school vouchers or funds generated by education tax credits to attend private schools.  That's still a modest number, but one that has doubled over the course of the last seven years.  The expansion of school choice programs will permit broader and deeper research that can, over time, develop a clearer picture of what happens when funds are shifted from the producers of education and placed in the hands of consumers.  The fiscal challenges of the past several years have, apparently, led states to increased experimentation with options presumed to be more cost-effective.  As the saying goes, where there is challenge there is also opportunity, and these are exciting times.

The low-point of my trip occurred, upon reflection, as a result of an off-the-cuff remark made by a youthful congressional staffer during the course of our Capitol Hill briefings.  Before I reveal what she said, it's important to note that interaction with Congressional staff is always among the highlights of a trip to D.C.  The staffers are idealistic,  energetic, mostly young and always passionately committed to making a difference, regardless of the party affiliation of their respective bosses.  They are often among the best and the brightest of our college and university graduates.  Many are success stories in their own right.  Not surprisingly, a good number happen to be private school graduates.  Regardless of where they went to school, all provide living testimony to the importance of education.
 
For all the apparent glamor of working on "The Hill," the life of a congressional staffer is by no means easy.  Stand in the halls of any of the congressional office buildings and you'll observe a dizzying stream of individuals and groups going in and out of the members' offices, each wanting to air his/her/their views, each wishing to feel heard, all seeking validation and positive feedback.  More times than not, it is the staffer - in addition to his/her other responsibilities - who is called upon to receive the never-ending flow of visitors.  In a government of the people, by the people and for the people, we are all lobbyists.

So what did I hear that so troubled me?  The young woman said something like this: "People are saying that they've never seen as much staff turnover as what we're seeing now."  Somehow, the remark came back to me while on the flight home, and the more I thought about it, the more it bothered me.
 
When last I had looked at the Real Clear Politics Congressional Job Approval rating, I'd found it hovering at the number of eggs in a carton.  (And not the 18-egg cartons I buy at Costco, but the 12-egg cartons at Trader Joe's.)  But that dismal figure reflects a good number of jaded old fogies like me, whose patience grows ever shorter and whose political idealism comes in ever more sporadic fits and spurts. Congressional staffers leaving in droves provides a more chilling and, perhaps more accurate measure of just how bad things really are on Capitol Hill.  And somewhere over Indiana it occurred to me that one need only consider the sad saga of NCLB/ESEA to appreciate the source of their disillusion.
 
If ever there was a bipartisan piece of legislation, the No Child Left Behind Act was it.  One tends to forget that the late Senator Ted Kennedy and U.S. Representative George Miller - then the leading Democratic education policymakers on the Hill - both flew to Ohio to take part in the bill signing ceremony, as President George W. Bush penned the measure into law in January, 2002.  The proceedings took place in the home district of Congressman John Boehner who, at the time, chaired the key education committee in the House of Representatives.  One big happy family.
 
And yet, the law that they created, together, was quickly regarded as unworkable - or worse, and states quickly figured out how to "game the system," by back loading "adequate yearly progress" targets and "dumbing down" assessment measures in the expectation that the law would be changed well prior to the 2014 deadline at which time all students were to have achieved proficiency in reading and math.  Now, with the deadline just around the corner and a politically polarized Congress either unwilling or unable to update the law, the Obama Administration has offered states a way out of its accountability requirements and corrective actions in the form of waivers.  To receive the waivers, states must agree to adopt a series of education reforms mandated by the U.S. Department of Education. 

To date, more than half the states have submitted waivers applications.  Already, the administration is hearing that the promised reforms are proving difficult to put in place.  States are beginning to play the same kind of games with respect to the implementation of their waivers obligations as we witnessed with NCLB. 
 
Meanwhile, California's State Board of Education is poised to present a "state-defined" application (during the heart of the presidential election campaign, this coming fall) in which the state will, presumably, seek relief without promising to abide by the full slate of reforms.  Key portions of a law that was turned into a mockery are being replaced by a policy that's being met with "wink-wink, nod-nod" mauvaise foi, or, as in the case of California State Superintendent of Public Instruction Tom Torlakson, public disdain.
 
How can such developments do other than quash the idealism provided by our young public servants?  We can do better than this.  We have to.  The best of the next generation of leaders is telling us so...with their feet. 

Ron Reynolds

Publication Note and Holiday Wishes


The next edition of the CAPSO Midweek E-Mailer will be published on April 25, 2012.  The E-Mailer wishes readers meaningful and uplifting Passover and Easter holidays!