CSBA hosted a webinar, “AB 1078 is more than meets the eye: What governing boards need to know,” on Sept. 28, featuring experts from CSBA’s Governmental Relations, Legal, and Policy and Governance Technology Services departments.

Current law requires that local educational agencies provide their students with “sufficient textbooks or instructional materials,” meaning that each pupil has a standards-aligned textbook or instructional materials, or both, to use in class and to take home. Existing law also requires that an LEA annually determine via a publicly adopted resolution whether each pupil in each school has sufficient textbooks or instructional materials, or both, by the eighth week of instruction after the school year has started.

Instructional materials must be aligned to the content standards adopted by the State Board of Education (SBE) in math, science, history, social science and English language arts. LEAs may use Local Control Funding Formula funds or Proposition 20 lottery funds to purchase instructional materials.

The enacted version of the bill allows for complaints to be filed against LEAs that limit or prohibit the use of inclusive textbooks, instructional materials or school library materials in violation of the California FAIR (Fair, Accurate, Inclusive, and Respectful) Education Act. CSBA Deputy General Counsel Kristin Lindgren-Bruzzone said the FAIR Act comes with flexibility in how districts fulfill the requirements and show those groups contributions; however, “prohibiting materials that show contributions of those historically marginalized groups is prohibited under AB 1078,” and qualifies as discrimination.

“A Uniform Complaint, which is a complaint that individuals can file alleging discrimination in district programs and activities, can be filed against an LEA for failing to meet this requirement,” Lindgren said. Previously, these complaints were first investigated by the district, which would make a resolution or determine no resolution is needed, and only after which the complainant could appeal to the CDE. However, under AB 1078, Uniform Complaints on this basis may be filed directly with the State Superintendent of Public Instruction (SSPI), so long as the complaint identifies the basis for filing directly with the SSPI and provides evidence that supports that basis.

With respect to the sufficiency of instructional materials, AB 1078 adds an additional ability for a complaint filed under the Williams Act to be submitted directly to the SSPI. Under current law, a Williams complaint, other than a complaint regarding conditions of facilities, is required to be reconciled at the LEA level. However, AB 1078 provides for immediate state intervention by the SSPI in a Williams complaint against a school district regarding sufficient instructional materials, including the assessment of financial penalties upon districts that do not provide sufficient textbooks or instructional materials.

As to both Uniform Complaints and Williams complaints, the language of the bill provides little clarity as to what would be considered a sufficient basis for a complaint, nor what standard of evidence would be deemed sufficient to allow the SSPI to directly intervene. It also does not require the SSPI to inform an LEA that a complaint has been filed.

In addition, AB 1078 requires new authority responsibilities for county superintendents, some of which may overlap with the new authority granted to the SSPI.

Specifically, if the county superintendent determines a school district has insufficient instructional materials due to a school district resolution or an unresolved Williams Act complaint, the county superintendent must take the following actions:

• Provide the school district with the opportunity to remedy the deficiency no later than the second month of the school term.
• If not remedied, they must request the CDE to purchase textbooks or instructional materials necessary to comply with the sufficiency requirement, as a loan to the school district and in consultation with the district.

Under new Section 60150 of the Education Code, specific to state intervention, the SSPI is permitted to impose a fiscal penalty equivalent to what the district would have received for the 2012–13 fiscal year for the Instructional Materials Block Grant pursuant to provisions in the 2012 Budget Act. AB 1078 is unspecific as to whether there is an opportunity for the school district to provide proper instructional materials before action by the SSPI. In addition, both the county superintendent and SSPI are permitted to require CDE to purchase textbooks/instructional materials for a district with insufficient instructional materials — considered a loan, to the school district. If the district does not repay the loan “based upon an agreed-upon repayment schedule with the SSPI,” then an equivalent amount will be deducted from “the next principal apportionment of the school district or from another apportionment of state funds.”

CSBA was successful in having provisions removed in earlier versions of the bill that would have eroded local control, including requirements that a governing board get approval from the SBE before making changes to instructional materials and a requirement that individual board members be called out by name in a notice posted prominently on the district’s and COE’s website homepage.

However, the bill still allows for multiple independent complaints, investigations and potentially inconsistent enforcement actions taken by local, county and state officials. Furthermore, a district may not be given time to investigate or correct the issue — consistent with the requirements in existing statutes and regulations — before the SSPI intervenes. Overlapping complaints may also result in conflicting remedy proposals and distract district leaders and staff from the needs of students, resulting in greater loss of educational resources.

Although well-intended in creating a tool to ensure students have access to textbooks and instructional materials that reflect the contributions of the diverse individuals and communities that make up California, AB 1078 may result in unintended consequences for LEAs by potentially making it harder for them to address textbook insufficiency.