Education Matters: May 2026

Education Matters

Amy Conway (Brandt) Partner

Jordan Carman Associate

Stephanie

First Amendment

Ninth Circuit Holds School May Have Violated First-Grader’s First Amendment Rights By Disciplining Her

For Black Lives Matter Drawing.

In March 2021, first-grade student B.B. drew a picture after a classroom lesson about Dr. Martin Luther King Jr. The drawing showed children holding hands and included the phrase “Black Lives Matter [sic] any life.” She gave the drawing to an African American classmate, M.C., who thanked her. M.C. later took the drawing home, where her mother found it and expressed concern that her daughter, the only Black child in the grade, had received a message referencing her race. The mother emailed the school principal, stating she would not tolerate messages directed to her daughter because of her skin color.

The next day, the principal met with B.B., allegedly told her the drawing was not inappropriate and racist, instructed her not to give drawings to other students, and directed her to apologize. B.B. was allegedly also prevented from attending recess for approximately two weeks. M.C. did not understand the drawing, and her mother told her not to worry about it. B.B. did not inform her parents of the incident at the time. Her mother learned of it nearly a year later and filed a complaint with the school district, which ultimately concluded that the evidence did not substantiate that B.B. had been disciplined.

B.B., through her mother, filed a civil action under 42 U.S.C. section 1983 against the District, the principal, alleging violations of B.B.’s First Amendment rights, including retaliation. After dismissals of certain claims and parties, the remaining First Amendment claims against the principal proceeded to summary judgment. The defendants moved for summary judgment, arguing the drawing was not protected speech and that the school’s actions were permissible under governing law. The district court granted summary judgment in favor of the principal, concluding the drawing was not protected by the First Amendment and that the school’s response did not warrant judicial intervention. B.B. appealed, seeking reversal of the summary judgment on her First Amendment and retaliation claims.

The Ninth Circuit reviewed the grant of summary judgment de novo and applied the framework established in Tinker v. Des Moines Independent Community School District. The Ninth Circuit held that elementary school students possess First Amendment rights and that the Tinker standard applies in the elementary school context, with student age serving as a relevant but non-dispositive factor. Under Tinker, a school may regulate student speech only when it materially disrupts school activities or invades the rights of others, and the school bears the burden of showing that its actions were reasonably necessary to protect student safety and well-being.

The Ninth Circuit focused on whether the drawing invaded the rights of B.B.’s classmate M.C. It concluded that the record contained conflicting evidence on that issue. Evidence suggested the principal could have viewed the drawing as targeting M.C. based on race and potentially interfering with her right to be secure and let alone. At the same time, other evidence indicated M.C. did not understand the drawing and suffered no harm, and there was no clear connection between B.B.’s language and a derogatory message. The Ninth Circuit also identified disputes regarding whether B.B. was actually punished and the nature of any restrictions imposed. Because these factual disputes were material to whether the school’s response was reasonably necessary under Tinker, summary judgment was improper.

The Ninth Circuit further held that the district court erred by treating B.B.’s young age as dispositive. While age affords schools greater discretion, it does not eliminate First Amendment protection or the requirement that the school justify its actions. The Ninth Circuit also vacated summary judgment on the retaliation claim because it depended on the determination that the speech was unprotected.

The Ninth Circuit vacated the district court’s grant of summary judgment on the First Amendment and retaliation claims and remanded the case for further proceedings.

B.B. v. Capistrano Unified Sch. Dist. (9th Cir. 2026) 169 F.4th 953.

Education Code

Court Rejects District’s Argument That Teacher Shortages Made Compliance With Credentialing Requirements Impossible.

West Contra Costa Unified School District experienced persistent teacher vacancies at several schools serving high percentages of low-income students, English learners, and students of color. To staff classrooms, the District used long-term substitute teachers and teachers working under emergency permits, waivers, or other limited authorizations. The District also implemented recruitment and retention efforts, including incentive programs and expanded hiring initiatives, but continued to face difficulty filling positions with fully credentialed teachers. Several teachers employed by the District alleged that students at Stege Elementary School, Helms Middle School, and Kennedy High School were being taught by instructors who lacked the credentials or subject-matter authorizations required for their assignments under California law.

The teachers filed an action against the West Contra Costa Unified School District seeking declaratory and injunctive relief under Education Code section 35186 and related credentialing statutes. They alleged the District assigned teachers to classrooms without the credentials, permits, or subject-matter authorizations required for those assignments and asked the court to order the District to comply with California’s teacher credentialing laws.

The District acknowledged that it had been unable to fill a significant number of teaching positions with fully credentialed teachers and raised the affirmative defense of impossibility. The District argued that statewide teacher shortages and difficulties recruiting credentialed teachers to the affected schools made full compliance with California’s credentialing requirements impossible despite the District’s recruitment and retention efforts. The trial

court ruled in favor of the District and concluded the District had established the impossibility defense. The teachers appealed and argued that the District had not demonstrated that it had exhausted all legally available staffing alternatives before departing from statutory credentialing requirements.

The appellate court reversed. The appellate court explained that impossibility may excuse statutory noncompliance only where a party demonstrates it took all reasonable and legally authorized steps to comply with the law. Although the District presented evidence of teacher shortages and recruitment difficulties, the appellate court concluded the record did not establish that the District exhausted all options available under the Education Code before relying on substitute and misassigned teachers. The appellate court noted that the record did not show the District sought available waivers or exhausted other statutory flexibility mechanisms through the Commission on Teacher Credentialing or the State Board of Education before departing from credentialing requirements. The appellate court also referenced other available staffing alternatives, including emergency permits, internship credentials, and waiver procedures authorized by statute and regulation.

The appellate court emphasized that California’s statutory scheme reflects a legislative determination that students are entitled to properly credentialed teachers, particularly at schools serving vulnerable student populations. The appellate court rejected the argument that generalized staffing shortages alone justified continued noncompliance and concluded the District had not met its burden to establish impossibility as a matter of law.

The appellate court reversed and remanded the matter for further proceedings consistent with its opinion.

West Contra Costa Unified School District v. Superior Court (2026) ___ Cal.App.5th ___.

Students

Appellate Court Finds No Due Process Violation Where Student Respondent Was Denied The Opportunity To Cross-Examine Victims.

In March 2019, three UC Berkeley students reported that, in separate incidents occurring in November 2017, November 2018, and March 2019, an intoxicated student engaged in increasingly aggressive conduct and forced them to participate in sexual activity without consent. Following the complaints, the University placed the student, referred to as John Doe, on interim suspension and initiated administrative proceedings under its sexual violence and sexual harassment policies. At the same time, the Alameda County District Attorney filed criminal charges, and two of the complainants testified at a preliminary hearing over several days, where they were extensively cross-examined by Doe’s counsel. The criminal matter concluded in February 2021 with a plea agreement.

The University conducted an investigation that included interviews of the complainants, the accused student, and multiple witnesses, along with a review of documentary evidence such as text messages, photographs, and transcripts from the criminal proceedings. The process culminated in an administrative hearing before a hearing officer in August 2021. The complainants did not testify at that hearing, but Doe testified, presented witnesses, and submitted arguments, including proposed questions he would have asked the complainants. The hearing officer issued a detailed written decision finding violations as to two complainants, based on credibility determinations that credited their prior statements and testimony and found Doe’s account was not credible. The University imposed the sanction of dismissal. Doe appealed internally, arguing procedural error, lack of evidence, and excessive delay, but the University denied the appeal and upheld the dismissal.

Doe then filed a petition for writ of administrative mandate against the Regents of the University of California, seeking to set aside the disciplinary decision. He argued the University denied him due process because he could not cross-examine the complainants at the administrative hearing. Doe further argued that

the University’s delay in completing the investigation prejudiced him. The Regents opposed the petition. The trial court denied the petition in a written order, concluding the procedures satisfied due process and that no prejudicial delay occurred. The trial court entered judgment for the Regents. Doe appealed.

The appellate court reviewed the administrative decision for procedural fairness and abuse of discretion. On the due process issue, the appellate court held that the student was not denied a fair hearing despite the absence of live cross-examination at the administrative hearing.

Relying on the California Supreme Court’s decision in Boermeester v. Carry, the appellate court emphasized that due process in university disciplinary proceedings is flexible and does not require trial-like procedures or live cross-examination in all cases. The appellate court found it significant that the complainants had already testified under oath in the criminal hearing where they were subject to extensive cross-examination, and that those transcripts were available to the hearing officer. Doe also had the opportunity during the investigation to propose questions for the complainants, but declined to do so. The appellate court concluded that these procedures provided a sufficient opportunity to challenge credibility and that due process did not require the complainants to appear at the administrative hearing.

On the delay issue, the appellate court held that the length of the investigation did not constitute error. The University had good cause for extensions, including the complexity of multiple allegations, the number of witnesses, the pendency of related criminal proceedings, and disruptions caused by the COVID-19 pandemic. The appellate court further held that the student failed to demonstrate prejudice, as he did not identify specific unavailable witnesses or explain how any alleged delay affected the outcome.

The appellate court affirmed the judgment, concluding the University’s disciplinary process satisfied due process and that no prejudicial error occurred.

Doe v. Regents of University of California (2026) 118 Cal. App.5th 1245.

Legal Update

Academic Renewal.

On April 17, 2026, the Chancellor’s Office published a 15-day notice of regulatory action regarding changes to the Academic Renewal regulations. Following the 45-day comment period that ended on April 11, 2026, and the March 24, 2026, Board of Governors meeting, changes were made to this regulatory action in proposed section 55000, subdivision (x) and section 55046, subdivisions (c)(1), (c)(2), (c)(3), and (c)(4). The California Community Colleges Chancellor’s Office will present the regulatory action to the Board of Governors at its May 19, 2026, meeting. Comments must be received before 4 pm on May 2, 2026.

Benefits Corner

Court Dismisses Challenge To Employer’s Health Plan Surcharge As Untimely Despite Violation.

Res-Care is a home- and community-based health services enterprise that serves individuals in need of specialized medical care. Res-Care offered its employees a health benefit plan. In January 2020, Res-Care began assessing a monthly $50 surcharge as part of the health benefit plan for employees who had used tobacco products within the previous six months (referred to as the “tobacco surcharge”). The tobacco surcharge increased to $100 per month if both the employee and their spouse/domestic partner used tobacco products. The purpose of the tobacco surcharge was to promote a healthy lifestyle and to provide an incentive not to use tobacco. Res-Care’s benefits catalogue explained that employees could avoid the tobacco surcharge by enrolling in and completing a tobacco cessation program through Res-Care’s Employee Assistance Program.

Plaintiff Minda Wiederhold worked at Res-Care and was a tobacco user. During open enrollment, she was required to respond to a tobacco usage question before selecting a health insurance plan. The tobacco attestation form directed enrollees to indicate “yes” or “no” to whether they had “used tobacco products any time in the last six months.”

Wiederhold discovered the tobacco surcharge when she reviewed her earnings statement in January 2020. According to Wiederhold, she did not contest it because she had to have health insurance. She also did not read the specific language referring to a tobacco cessation program.

On January 8, 2024, Wiederhold filed a class action lawsuit challenging the lawfulness of the tobacco surcharge and seeking monetary reimbursement for all participants who paid the tobacco surcharge. She alleged the tobacco surcharge violated the nondiscrimination provision set forth in the Employee Retirement Income Security Act (ERISA) because it imposed a premium on plan participants based on their health status. ERISA contains a nondiscrimination provision prohibiting group health plans, such as that offered by Res-Care, from charging participants a greater premium based on any health status-related factor. (29 U.S.C. section 1182(b).) However, there is an exception. A group health plan is allowed to offer a premium discount or rebate in exchange for participation in a bona fide wellness program. In other words, ERISA prohibits plans from requiring individuals to pay health-status-related premiums unless such premiums are avoidable through adherence to a bona fide wellness program. For the exception to apply, the plan must disclose the terms of the wellness program in all plan materials.

In litigation, Res-Care did not contest that the tobacco surcharge constituted a violation of ERISA’s nondiscrimination provision. However, Res-Care claimed Wiederhold brought the lawsuit too late and that the statute of limitations had

lapsed. While the District Court found that Res-Care’s tobacco surcharge violated the nondiscrimination rules, the District Court ultimately agreed with Res-Care on the statute of limitations issue. The District Court found that the undisputed record showed that Wiederhold had gained actual knowledge of the facts essential to her claim in January 2020, which triggered ERISA’s three-year statute of limitations, as opposed to ERISA’s longer six-year statute of limitations that applies when the plaintiff does not gain actual knowledge of the breach or violation. Since Wiederhold initiated the lawsuit one year after the three-year statute of limitations ended, the District Court rendered her claims untimely and granted Res-Care’s motion for summary judgment.

Wiederhold v. Res-Care, Inc. (S.D.Ind. Mar. 31, 2026, No. 4:24-cv-00003-SEB-TAB) 2026 WL 874928.

Note:

While ERISA does not apply to governmental plans, there could be other legal risks with charging employees a surcharge or higher rate based on their health status. If a benefit is more costly for employees because of their health status, which could arise from a disability, there are risks of disability discrimination under the Americans with Disabilities Act and the Fair Employment and Housing Act.

Benefits Compliance Question

Question:

Is a tool allowance excludable from an employee’s gross income?

Answer:

It depends on how the tool allowance is set up. When cash allowances are provided to employees for tools, the allowance is excludable from an employee’s gross income if it qualifies as a “working condition fringe benefit.” To set up a working condition fringe benefit for a tool allowance, employees need to verify to the employer that the payment is actually used for the tools needed to perform the job. Employees must submit receipts or other supporting documentation, and they need to return any unused allowances to the employer.

In 2005, the IRS issued Revenue Ruling 2005-52, which stated that a tool allowance that was determined by estimates (instead of actual costs) was included in gross income (i.e., taxable). In Revenue Ruling 2005-52, employees were given an allowance based on an estimate of tool costs for the hours they worked. The employees were not required to submit receipts or other supporting documentation, nor were they required to return amounts in excess of substantiated expenses, which is why the IRS determined their tool allowance was taxable.

LCW BENEFITS BEST PRACTICES TIMELINE

Each month, LCW presents a monthly benefits timeline of best practices.

• Prepare for the end of the fiscal year, including budgeting for employee benefits.

• Consider whether the district wants to revise any of its benefit plan documents. Prepare for any changes as soon as possible to ensure the timely adoption of any amendments before the start of the next plan year.

Consortium Call Of The Month

Members of Liebert Cassidy Whitmore’s consortiums are able to speak directly to an LCW attorney free of charge to answer direct questions not requiring in-depth research, document review, written opinions or ongoing legal matters. Consortium calls run the full gamut of topics, from leaves of absence to employment applications, student concerns to disability accommodations, construction and facilities issues and more. Each month, we will feature a Consortium Call of the Month in our newsletter, describing an interesting call and how the issue was resolved. All identifiable details will be changed or omitted.

Question:

A Community College District client asked LCW whether the Education Code qualifies associate faculty for differential pay, or if the requirement only applies to full-time faculty.

Answer:

A LCW attorney explained that the Education Code does not distinguish between part-time/associate and full-time faculty. Rather, Education Code section 87780 simply addresses the application of differential pay to persons employed in “academic positions.” Therefore, it would apply to associate faculty as well.

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