In dramatic eleventh-hour fashion, California Governor Jerry Brown vetoed SB 131, a bill that would have retroactively removed the statute of limitations on claims against some, but not all third-parties to acts of childhood sexual abuse.  Because the measure's provisions targeted private and nonprofit employers, exclusively, CAPSO vigorously opposed the bill.  The Governor's veto was issued the afternoon of October 12, just a day prior to the statutory deadline for gubernatorial action on bills passed during the current year.

Had the bill been signed into law, victims of acts of abuse committed in private schools decades ago would have been given a one-year window commencing January 1, 2014, during which to advance their claims.  Victims who suffered similar acts of abuse in public schools would have been granted no such opportunity.
 
The measure, authored by State Senator Jim Beall (D. - San Jose) was among the most controversial, and heavily contested to have been introduced during the current legislative session, having survived a Senate floor vote by the barest possible margin before encountering similar resistance in the Assembly.  In fact, the bill failed to receive a sufficient number of votes to achieve passage by a key Assembly committee.  Thanks to a procedural exercise by the author, and a political maneuver by the committee chair, the measure was resuscitated and sent to the Assembly floor, only to see an initial vote fall short of the margin required for passage.  In another procedural maneuver, the roll call was kept open just long enough for proponents to achieve the necessary votes.
 
CAPSO's opposition to SB 131 was grounded in principle, and summarized in testimony presented by Executive Director Ron Reynolds:

The National Assessment of Educational Progress, popularly known as "The Nation's Report Card," is a series of tests administered once every two years to a national sample of students attending both public and private schools.  The Congressionally authorized testing program operates under the aegis of the U.S. Department of Education's Institute of Education Sciences.  A National Assessment Governing Board, which includes a private school representative, oversees the development of the assessment instrumentation and sets policy for the NAEP. 

Scores on NAEP assessments of reading and mathematics, which are administered to students enrolled in grades 4 and 8, are reported in two ways.  The first consists of average scores on a scale ranging from 0 to 500.  The second provides the percentage of students scoring at-or-above each of three achievement levels: Basic, Proficient, and Advanced.  Test items, which include both multiple choice and constructed-response questions, are designed to provide students with opportunities to demonstrate what they know and are able to do.  The reading assessment focuses on the comprehension of textual content drawing from fiction, literary nonfiction, and poetry.  The mathematics assessment probes five areas of knowledge and ability: number properties and operations, measurement, Geometry, data analysis, statistics and probability, and Algebra.

America's students demonstrated progress on this year's administration of the English and mathematics assessments.  Math scores in 2013 were higher than any prior administration of the assessments at the grade 4 and 8 levels.  Scores on the English assessment were higher than those of any previous administration of the assessment at the 8th grade level, and higher than all but the 2011 administration of the test at the 4th grade level.  A summary report of the results can be accessed, here.

Private school students maintained a considerable edge over their public school counterparts.  On the reading assessment, the average score (285) for 8th grade private school students was 19 points higher than the average score (266) for students attending public schools.  The average score for private school students at the fourth grade level (235) eclipsed the average score produced by public school counterparts (221) by fourteen points.  In mathematics, private school students achieved a 12-point difference in grade 8 (296/284), while the difference was least pronounced at the 4th grade level, at 5 points (246/241).  A 10-point difference on the 500 point scale is roughly equivalent to one grade level, so even a difference of 5 points suggests a half-year gap at the lower grade level.

Private schools also produced a greater number of students scoring
at-or-above each of the three criterion levels (Basic, Proficient, and Advanced).  CAPE provides a summary of results, here.

California's students demonstrated progress on both assessments at the 8th grade level (including a substantial gain of 7 scale points on the reading assessment).  At the 4th grade level, students demonstrated a gain of 2 scale points on the reading assessment, while maintaining flat scores in math.  Still, state scores on both the reading and mathematics assessments fell below the national average at both the 4th and the 8th grade levels. State Superintendent of Public Instruction Tom Torlakson issued a press release in which he addressed the results of the assessments, here. (Public and private school scores cannot be compared at the state level owing to insufficient sample sizes.)  In California, 220 public school districts and 740 public schools participated in this year's administration of the NAEP.

The NAEP homepage provides a variety of reports and offers viewers a user-friendly custom data tables tool that can be used to generate user-generated information.

Existing California law forbids schools, both public and private, from unconditionally admitting any student who has not been fully immunized against the following diseases:  Diphtheria; Haemophilus Influenzae type b; Measles; Mumps; Pertusis (Whooping Cough); Poliomyelitis; Rbella; Tetanus; Hepatitis B.  Additionally, no student can be unconditionally admitted, or advanced to 7th grade unless he/she has been fully immunized against Pertussis, "including all pertussis boosters appropriate for the pupil's age."  This last set of immunizations is commonly known as the "Tdap" (Tetanus, reduced Diphtheria, and Pertussis).  These requirements can be found in Section 120335 of the California Health and Safety Code.

At present, the law provides an opt-out provision for children for whom certain medical procedures may be contrary to the religious beliefs of parents, or guardians.  To exercise the opt-out prerogative, parents must provide either a letter or affidavit to the governing authority of a school, indicating which immunizations have been received, and which have not been received on grounds of religious objection.  This provision can be found in Section 120365(a) of the Health and Safety Code.

Effective January 1, 2014, a new law will go into effect that adds requirements to the opt-out procedure.  The new requirements were established by AB 2109 (Pan), a bill passed and signed in 2012, and apply to parents of children attending both public and private schools.  In addition to submitting a letter, or affidavit to the governing authority of a school, parents wishing to exercise the opt-out provision must also submit a completed form that can be obtained from the California Department of Public Health.  A copy of the form can be accessed by clicking here.

Form CDPH 8262 (10/13), titled "Personal Beliefs Exemption to Required Immunizations," consists of two sections.  The first section is to be completed and signed by an authorized health care practitioner licensed in California.  Such persons include medical doctors, doctors of osteopathic medicine, nurse practitioners, physician assistants, naturopathic doctors, and credentialed school nurses.  One such individual must sign a statement attesting that he/she has provided the parent or guardian with information regarding the benefits and risks of immunization, as well as the health risks to the student and community posed by the communicable diseases for which immunization is required in California.

The second section of the form contains two parts.  The first requires the parent or guardian to check one of two boxes, either acknowledging receipt of information from the medical professional, or attesting to membership in a religion that prohibits the seeking of medical advice or treatment from authorized health-care practitioners.  This portion of the form must be signed and dated within a six-month period prior to a child entering a school.  The second part is an affidavit in which the parent or guardian attests that a record of all required immunizations has been provided to the school, and which specifies the immunization(s) for which the opt-out prerogative is being exercised.

In addition to the religious beliefs exemption, students may also be exempted from particular immunizations for medical reasons, as determined by a licensed M.D. or D.O.  Additional information may be obtained from local health departments.  Links to county health departments, statewide, can be found, here.  This web page also contains helpful information about school immunization requirements and exemptions.

Reading Governor Brown's SB 131 veto message (see lead article, above) literally gave me the chills. As if I were watching a movie, viewing the Governor's eloquent dismantling of SB 131 for the first time required something akin to a willful suspension of disbelief.  In fact, it took two additional readings for the inchoate thought that began to form during the course of my first rapid scan of the text to achieve full expression: Had I been invited to offer the Governor my fantasy SB 131 veto message, it could not possibly have improved upon the actual document I had just read. I may consider myself a competent thinker and decent writer, but I'm modest enough to acknowledge that Governor Brown's veto message exceeded anything I could have produced, both in form and substance.  Thank you, Governor Brown!
 
I would be less than honest were I to deny that the Governor's veto message also provided something of a personal sense of vindication.  It was by no means easy to have listened to the heart-rending and gut wrenching stories told by victims of childhood sexual abuse who testified before various legislative committees in support of SB 131.  No caring person could be unaffected by the accounts of deprivation, pain and suffering endured by such victims.  Taking my place at the opposition desk in the immediate aftermath of their testimony, and arguing against their interests before packed meeting rooms, legislators, and members of the press proved to be one of the most difficult assignments I've ever had occasion to undertake.  I could not, and would not have done so were I not completely convinced that CAPSO's position was more principled than that of SB 131's proponents.  Indeed, I repeatedly made it clear that should the bill be amended in such a manner as to make its provisions equally applicable to private and public employers, CAPSO would immediately withdraw its opposition.  This was no idle bluff.  CAPSO's opposition to the bill hinged upon unanimity among the Association's members, and unanimity would have been absent had SB 131's provisions been equitable.

It was not always easy to explain our position - something I found myself called upon to do scores of times over the course of many months.  I had assimilated the accompanying legal lingo long ago, but to someone newly exposed to the bill, the section of the Civil Code it proposed to modify, and the various legal proceedings that ultimately occasioned its introduction, SB 131 proved more than a little confusing.  Nor was the press of much assistance, generally casting the measure in "victims rights" language, absent accompanying qualification.  And so, the Governor's veto not only provided a massive sense of relief with respect to the vast potential liability faced by our schools, it provided substantial personal relief, as well.  If you have a hard time with my position, I found myself thinking, you can now take up the matter with the Governor.

But, alas!  The sense of accomplishment that accompanies such political victories is almost always short-lived, and I couldn't help but recall that just a year ago we suffered a grave disappointment courtesy of a veto effected by the hand of the self-same Governor Brown.  To make a long story somewhat shorter, the Governor had zeroed out the state child nutrition subsidy for children enrolled in private schools (and receiving meals from other private entities) in his proposed budget for the coming year.  CAPSO and its colleagues, with substantial help from Democratic leadership in the State Assembly, succeeded in achieving a restoration of funds in the budget bill that was ultimately passed by the Legislature, only to see the Governor use a line-item veto to strike the subsidy from the final budget.

Unlike Mr. Brown's veto of SB 131, which had everything to do with principle, the Governor's elimination of the child nutrition subsidy for private school students had everything to do with money.  As is made clear in the note accompanying his line item veto, Mr. Brown's action was prompted solely by temporal fiscal considerations:

That was the entirety of the Governor's explanation.  Of the total amount of $10.1 million, a mere $372,895 had been budgeted to provide nutrition subsidies to children enrolled in participating private schools...a sum that doesn't even constitute a rounding error in the state budget.  And of all those affected by the Governor's action, only the parents of private school children could take action to restore the subsidy...by enrolling their kids in public schools.  Thus, in order to achieve savings amounting to about $56 per child, per year, the Governor provided an incentive that would cost the state some $8,000 for every child transferred to a public school.

Since the Governor exercised his line-veto, California has enjoyed a revenue windfall that has pumped $4.3 billion above and beyond the amount projected by the Governor into the state's coffers.  The state supplemental child nutrition subsidy could have been restored for all children (not just private school students) receiving meals from private entities for an amount totaling less than one-quarter-of-one-percent of the unanticipated surplus.  In light of this reality, I'd sure like to be able to say Thank you, Governor Brown! at least one more time.

Ron Reynolds

The next edition of the CAPSO Midweek E-Mailer will be published December 4, 2013.