Board places parental notification issue on hold
By Mike A'Dair/TWN Staff Writer
Posted: 01/23/2009 11:59:24 AM PST
The Willits Unified School board has tabled discussion about whether the district should notify parents when their children leave school to obtain confidential medical services until Superintendent of Schools Debra Kubin receives clarification on the issue from the state Department of Education.
The controversy revolves around the question of how to interpret WUSD policy 5113, based on state Education Code section 46010.1. That section of the code states school authorities "may" excuse students from school for confidential medical services without parental consent.
Currently, the district interprets 46010.1 as mandatory. The district's policy states: "At the beginning of each academic year, notifications shall be sent to the parents/guardians of all students, and to all students grades 7 through 12, informing them school authorities may excuse any student from school to obtain confidential medical services without the consent of the student's parent/guardian."
A related district policy states: "Students in grades 7-12 shall not be absent from school without their parents/guardians' knowledge or consent except in cases of medical emergency or confidential medical appointment."
But Robert and Donna Lovato, parents of Willits High School senior Jenna Lovato, are urging the district to change its policy and notify those parents who wish to be informed of their children's medical appointments.
"We are requesting that either the school board reconsider and retract the implementation of this policy, or would develop a Parental Opt-Out a written statement of nonconsent as there are similar clauses in Education Codes 51240,51938 and 49451, since state law is permissive in nature [rather than required]." Donna Lovato wrote in a letter to Kubin.
The policy question has sparked some controversy.
"More is involved here than just birth control and abortion," according to Trustee Cynthia. "There is more than that out there that we are talking about here."
"This is not nice to talk about, but here it is," Kubin says. "I knew an administrator who worked at a large high school, who knew of a girl who was getting molested by her stepfather in the home. The student was seeking mental health services. Now, do you think it would have been right to require parental notification from that stepfather? Do you think he would have given it?"
Linda Davis-Alldritt, a Department of Education school nurse and health consultant, had previously told the Lovatos that section 46010.1 is permissive, an opinion she reaffirmed in a recent conversation with Kubin.
But Davis-Alldritt conceded she was not sure about the interpretation and would seek clarification from Department of Education attorneys.
That clarification is still pending.
"I don't know how long that could take," Kubin says. "It could be weeks. It could be months."
Donna Lovato says she doesn't "understand why the schools are involved in this. The kids can go to medical appointments after school. This would take liability off the schools, and it wouldn't take the authority away from the parents."
In a conversation with The Willits News, Lovato explained why a policy change is so important to her family. "We are teaching our children to be totally honest. So when you act without telling your parents when you do something you need medical treatment for and you don't let your parents know then you are not being totally honest. You are going around your parents. So this school board policy actually undermines what we are teaching our children.
"I don't think the school board has the right to do that.
"If we are teaching our kids something other than complete honesty, then what kind of citizens are we making?"
The issue is made more confusing because legal experts disagree on how to interpret EC 46010.1. Margaret Merchat of School and College Legal Services, the organization that acts as legal counsel for the Willits Unified School District, believes EC 46010.1 must be interpreted as mandatory.
Matthew McReynolds, an attorney with the Pacific Justice Institute of Sacramento, believes the section must be interpreted as permissive. "It is a basic principle of statutory construction that 'may' is permissive, whereas 'shall' is mandatory.
"California law permits schools to excuse students for confidential medical appointments without the approval of a parent or guardian, but does not require schools to do so."
California Attorney General Bill Lockyer agrees section 46010.1 must be interpreted as mandatory. In a 2004 legal opinion he wrote, "If a school district could require parental consent under the terms of Education Code section 46010.1, the statute would no longer concern 'confidential medical services.' By definition, such services are kept confidential from the guardian or parent of the pupil."
According to Lovato, former California Attorney General Dan Lundgren has opined "may" means "may" and school districts, while they may choose to offer excused absences to students for confidential medical services, may also chose not to.
In November, Kubin told the board she had researched the policies of 30 school districts in the state and had been able to find only two districts Poway Unified School District and San Diego Unified that interpreted 46010.1 as permissive.
On January 14, the Lovatos came back with copies of board policies from 12 more school districts in California that interpret 46010.1 as permissive.