The legal "window" for the annual filing of the California private school affidavit opened October 1 and extends through October 15.  Section 33190 of the California Education Code requires every private school in the state to file this important document.  Below, you will find step-by-step instructions for online filing.  To enter the required information administrators will need to know the unique eight-digit password assigned to their school.  On September 23, the California Department of Education emailed a message containing the password and filing instructions to all private schools in the Department's current database - meaning all schools that filed an affidavit last year.  If, after checking, you believe your school did not receive this communication, or if you should require assistance, please send an email to Anie Wilson at the CDE: awilson@cde.ca.gov

Here, courtesy of the CDE, is a list of step-by-step instructions to be followed when filing this year's private school affidavit online:

 

 

 

As you complete your affidavit, please devote special attention to the questions asking whether your school is established on a for-profit, or nonprofit basis.  If your school enjoyed a particularly strong fundraising campaign and happened to finish its most recent fiscal year "in the black," it does not necessarily make your school a for-profit entity!  A school that has been granted 501(c)(3) status by the Internal Revenue Service is a nonprofit entity, regardless of the size of its endowment, or the "bottom line" on its end-of-year balance sheet.

 

The CDE has done its best to facilitate the affidavit filing process.  CAPSO urges all private schools to complete the submission process in a timely manner.    

In the previous edition of the E-Mailer we highlighted two recently passed bills containing provisions that will impact a number of private schools and private school teachers. (In case you missed it, that article can be viewed, here.)  In this edition, we call your attention to two additional bills whose provisions will become law effective January 1, 2015.

Under the new law, all private school employees must, prior to their initial employment, furnish a certificate, "showing that within the last 60 days the person has submitted to a tuberculosis risk assessment and, if tuberculosis risk factors are identified, has been examined and has been found to be free of infectious tuberculosis. If no risk factors are identified, an examination is not required."  Following initial employment, individuals who have no identified tuberculosis risk factors, or who tested negative are required to undergo the risk assessment, and, if risk factors are identified, the examination, at least once in every four successive years (or more often if directed by the school, upon recommendation of the local health authorities).  Individuals who have tested positive are no longer subject to the risk assessment.  The law requires that such individuals be referred to a local health officer within 30 days of the administration of the test, to determine the need for follow-up care.

At the discretion of the school, the tuberculosis risk assessment requirement may be waived for individuals "who are employed for any period of time less than a school year whose functions do not require frequent or prolonged contact with pupils."  Private schools may require more extensive, or more frequent tuberculosis examinations upon the recommendation of the local health officer (i.e. County Health Department).

Finally, the new law requires drivers who transport pupils to private schools under contract with the school to undergo the tuberculosis risk assessment, as per other employees.  At the discretion of the school, this requirement may be waived for a contracted driver "who transports pupils infrequently and without prolonged contact with the pupils."

To summarize and simplify, the new law replaces the required administration of a TB test with the administration of a TB risk assessment.  (A risk assessment questionnaire will be developed by the State Department of Public Health, in consultation with the California Tuberculosis Controllers Association, for use by healthcare professionals).  When risk factors are determined to be present, a TB test will be administered.  Individuals with no risk factors, or those who tested negative are required to undergo the screening at least once every four years.  Those testing positive need no longer undergo the risk assessment, but must be referred to a local health officer to determine the need for additional care.

Important Note:  The provisions of AB 1443 modify portions of the California Fair Employment and Housing Act (FEHA).  The FEHA's provisions are not applicable to nonprofit religious corporations, as such entities are specifically excluded from the law's definition of "employer."  However, private religious schools incorporated as nonprofit public benefit corporations may not be exempt.  Religious school administrators should check their school's articles of incorporation and, if the school is found to be incorporated as a nonprofit public benefit corporation, should consult with qualified legal counsel to determine those provisions of the FEHA to which the school is subject.

AB 1443 extends the anti-discrimination protections of the FEHA to unpaid interns and persons in apprenticeship training, or other programs leading to employment.  The new law will make it illegal to subject such individuals to discrimination on the basis of race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age, sexual orientation, or military and veteran status.  Discrimination must not occur during the process of employment selection, termination, training, or in the provision of unpaid work experience.

The new law also adds unpaid interns and volunteers to persons protected from harassment in the workplace.  Such protection may extend to acts of sexual harassment committed in the workplace by non-employees.

Finally, employers will be barred from excluding unpaid interns, or individuals seeking to participate in training programs leading to employment, or to terminate their participation in such programs owing to:
 
 Remember, if your school is incorporated as a religious nonprofit corporation, it is not considered to be an "employer" under the FEHA.

The following bills of interest to California's private school community were vetoed by Governor Jerry Brown:

according parents the option to enroll their children at either age 5, or

age 6.  The measure would not have affected the permissibility of

enrolling children in private school kindergarten, or of exercising the

option to homeschool.

In his veto message, Governor Brown invoked language amounting to a ringing endorsement of parental choice in education: 

 

"I would prefer to let parents determine what is best for their

children, rather than mandate an entirely new grade level."

  

The Governor's veto message can be viewed, here.  

   

 

 

 This measure was something of a substitute bill for Senator Beall's SB 131, which proposed the revival of previously time-barred claims against third parties to acts of childhood sexual abuse, but did so for private entities only.  CAPSO, together with the California Council of Nonprofit Organizations (CCNO) vigorously opposed that bill, which was ultimately vetoed by Governor Brown, last year.

 

SB 924 removed CAPSO's principal grounds for objection to the prior bill by making public schools subject to its provisions.  However, the replacement measure continued to hold various state agencies exempt from its provisions, and would have extended the statute of limitations for claims of negligence brought against third parties to acts of childhood sexual abuse from age 26 to age 40.

  

In his veto message of SB 924, Governor Brown wrote the following:

 

"As I wrote last year, there comes a time when an individual or organization should be secure in the reasonable expectation that past acts are indeed in the past and not subject to further lawsuits.  With the passage of time, evidence may be lost or disposed of, memories fade and witnesses move away or die. There needs to be a compelling reason to lengthen the statute of limitations for civil claims against third parties. I do not see evidence of that here."

 

 The full text of the Governor's veto message can be accessed, here.

 

Have you ever received an invitation to a party accompanied by a RSVP whose deadline had already passed?  A decade ago, it was not uncommon for private school officials to receive letters from local public school districts in which they were asked to indicate their school's intention to participate in various federally funded programs by completing a form that was to be submitted prior to a deadline that had already expired. 

More times than not, such travesties were a function of benign bureaucratic sloth.  Documents subject to review by in-house attorneys and requiring multiple sign-offs could, and often did repose in a succession of in-boxes for days at a time prior to being printed and mailed by people for whom the contents held no meaning.  Needless to say, this put something of a crimp in the provision of "timely and meaningful" consultation, as required by federal law.
 
Happily, such occurrences have grown increasingly rare, as the availability of federal guidance has become widespread, and the communication of expectations from the California Department of Education to district level federal program coordinators has been substantially beefed up.  For private schools located in the state's largest school districts, the timeliness of communications announcing opportunities to participate in federally funded programs has achieved such an improved status that one might justifiably view the days of the empty promise as a thing of the past.  Which is why a recent piece of correspondence from the State Board of Education took me by surprise.
 
The communication in question came in the form of an email addressed to me and dated September 18, 2014, at 1:26 p.m.  The text was short, and to the point: The State of California, it noted, is in the process of developing an application for a federal preschool expansion grant, and wishes to identify entities interested in participating as subgrantees.  A URL linking readers to additional information was provided, and the message concluded with the following boldfaced sentence:  "Please note that interested subgrantees must respond by 5:00 PM, Monday, September 22, 2014."

At issue is the opportunity to participate in a federally funded preschool expansion program that could provide California with as much as $35 million to provide high quality early education programming for children from poverty backgrounds in two or more high need communities.  More information about the grants program can be found, here.

While one may surmise that decision making in the private sector is considerably more streamlined than is true of government agencies, a two-working-day deadline bespeaks either oversight, insult, or both.  Private schools aren't ruled by autocrats.  Most make a practice of exercising due diligence and following due process.  Moreover, neither private school administrators nor volunteers involved in organizational governance can or should place their other obligations on hold to meet a completely unreasonable deadline.  (It must be noted that the information required by the State Board of Education necessitated answering questions that held fiscal and policy implications for responding organizations.)
 
It's not as if CAPSO isn't known to the State Board of Education, or the California Department of Education.  To be fair, we self-identify as an association whose interests are generally limited to grades K-12, inclusive.  Yet, if the state was truly desirous of recruiting subgrantees from the private sector, SBE and CDE staff know that CAPSO serves as an excellent conduit of communication to administrative units and service agencies that serve, or operate significant numbers of high quality early education programs.  And the state should have been desirous of getting the word out in a timely manner, as providing evidence of collaborating with subgrantees and ensuring strong partnerships is accorded heavy weighting among the selection criteria by which grant applications are to be scored.

While I'd like to believe otherwise, the cynic in me can't be convinced that the state possesses much of any interest in facilitating strong public-private partnerships.  We recently saw deceptive window dressing in the Legislature, with the introduction of SB 837, a bill purporting to create a "mixed delivery model" for state funded early education (see the E-Mailer's write-up, here) that, among other provisions, required private providers to be regarded as public schools for purposes of establishing collective bargaining procedures.  Now, we're seeing what appears to be a half-hearted effort on the part of the State Board of Education to reach out to providers of early education associated with private K-12 schools.

It has long been CAPSO's view that private schools are partners in the education of the public.  That may sound idealistic to some, but we're sober enough to recognize that real partnerships are forged at the planning table rather than invited as an afterthought.  California failed to secure a Race to the Top Fund grant because the state couldn't partner with its teachers unions.  Maybe that's a good thing, and maybe it isn't, but whatever one's view of the outcome, it's a sure bet that both parties engaged in a sustained process of negotiation.  In other words, there was real opportunity to partner.

While there's no guarantee that private early education providers and the State Board of Education can reach a modus vivendi concerning the provision of an actual mixed delivery model for preschool education, it's an equally sure bet that strong partnerships require real partners.  We'd much prefer not to crash anyone's party, so let this serve as an RSVP in advance to the SBE.  If you're serious about exploring a partnership with California's private school community, please count us in.

Ron Reynolds

The next edition of the CAPSO Midweek E-Mailer will be published November 5, 2014.