Governor Signs A.B. 1078, Effective Immediately, to Address Textbooks and Instructional Materials in Public Schools

10.24.2023

Signed into law on September 25, 2023, Assembly Bill (“A.B.”) 1078 addresses issues related to insufficient textbooks or instructional materials within California public schools.  As the bill contained an urgency provision, the bill took effect the day it was signed. 

A.B. 1078 added Education Code section 202, in which the Legislature “reaffirm[ed] that its laws and public policy support accurate and inclusive education in all of California’s schools.”  The Legislature specifically included references to instructional and supplemental materials written by or featuring LGBTQ+ individuals, or materials that touch on “race, ethnicity, gender, sexual orientation, or other protected characteristics.”  The Legislature stated restricting access to such materials because they feature or were written by individuals from such groups is discrimination and “constitutes censorship in violation of California law and policy.”

A.B. 1078 amends various provisions of the Education Code regarding instructional and supplemental materials, and policies related to nondiscrimination.  Specifically, A.B. 1078 amended Education Code section 234.1, subdivision (a), and requires school districts and county offices of education to amend their existing nondiscrimination policies to include language clarifying that these nondiscrimination policies apply to the governing board and the superintendent when they enact policies and procedures.

To address concerns regarding insufficient textbooks or instructional materials, A.B. 1078 added Education Code section 243.  The new statute states that a school district or county board of education “shall not refuse to approve the use or prohibit the use” of instructional or supplemental materials, including library materials, “on the basis that it includes a study of the role and contributions of any individual or group” who is “Native American, African American, Latino American, Asian American, Pacific Islanders, European American, LGBTQ+ American, persons with disabilities, or members of other ethnic, cultural, religious, and socioeconomic statues groups.”  The law states that such action by a school district or county board of education constitutes unlawful discrimination in violation of Education Code section 220, and an allegation or complaint regarding a violation may be filed under the Uniform Complaint Procedure (“UCP”). 

Under A.B. 1078, a complaint of insufficient textbooks or supplemental materials may also be filed directly with the Superintendent of Public Instruction.  In response, the Superintendent of Public Instruction “may directly intervene without waiting for an investigation” by the educational agency.  If the Superintendent of Public Instruction determines that a school district does not have sufficient textbooks or instructional materials, the school district will be assessed “a financial penalty against its local control funding formula” (“LCFF”) and the California Department of Education will purchase sufficient textbooks and instructional materials and create a loan to be paid by the school district.  If the loan is not repaid by an agreed upon schedule with the Superintendent of Public Instruction, the State Controller will deduct the amount of the loan from the school district’s apportionment of state funds.

A.B. 1078 also imposes new duties on county superintendents of schools and county offices of education in overseeing instructional and supplemental materials.  Under existing law, a school district is required to hold a public meeting within the first eight weeks of the start of a new school year to determine if it has sufficient textbooks or instructional materials.  If the governing board determines there are insufficient textbooks or instructional materials, it must pass a resolution to that effect.  Under the law as amended by A.B. 1078, the governing board must now submit a copy of that resolution to the county superintendent of schools within three business days.  Under A.B. 1078, if the county superintendent of schools determines there are insufficient textbooks or instructional materials pursuant to the resolution, a complaint filed under Education Code section 243, or an audit, the county superintendent is now required to provide the school district until the second month of the school year to remedy the deficiency.  If the deficiency is not remedied by the deadline, the county superintendent must request that the California Department of Education purchase the materials to remedy the deficiency.  The California Department of Education will work with the school district determine which materials to purchase.  The materials will be purchased through a loan to the school district.  If the loan is not repaid by an agreed upon schedule with the Superintendent of Public Instruction, the State Controller will deduct the amount of the loan from the school district’s apportionment of state funds.

In response to A.B. 1078, school districts and county offices of education are encouraged to ensure their current nondiscrimination policy complies with the law as amended.  Moreover, because of the potential financial consequences of a determination of insufficient textbooks or instructional materials, school districts are encouraged to consult with legal counsel both when there are complaints regarding sufficiency of materials and before taking action to remove challenged textbooks or supplemental materials.

Please contact the authors of this Alert or your usual AALRR counsel with any questions regarding A.B. 1078 or addressing challenges to textbooks or supplemental materials.

This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. AALRR is not responsible for inadvertent errors that may occur in the publishing process. 

© 2023 Atkinson, Andelson, Loya, Ruud & Romo 

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