New Law Expands the Four-Year Evidentiary Window in Permanent Certificated Discipline Cases Involving Allegations of Sexual Misconduct

Lozano Smith Client News Brief
October 2018
Number 62

Assembly Bill (AB) 2128, effective January 1, 2019, will allow evidence and testimony outside the current four-year time window when a certificated employee is accused of sexual misconduct with a student or minor.

Generally, Education Code section 44944 prohibits testimony, evidence, or a dismissal or suspension decision relating to matters that occurred more than four years before the date a permanent certificated employee is served with a notice of disciplinary action. While there are exceptions to this rule when allegations of sex offenses and acts of child abuse and neglect are charged against a permanent certificated employee, existing law does not expressly allow consideration of testimony or evidence for other misconduct of a sexual nature, if the evidence relates to matters that occurred more than four years prior.

AB 2128 exempts from the four-year window testimony, evidence, or a dismissal or suspension decision regarding allegations of behavior or communication of a sexual nature with a student that is beyond the scope or requirements of the educational program, for purposes of a disciplinary proceeding based on similar conduct. The new law will also exempt testimony, evidence, or a dismissal or suspension decision regarding allegations of specified offenses involving lewd and lascivious acts and certain types of contact or communication with minors, for purposes of any disciplinary proceeding.

It should be noted that separate and apart from AB 2128, in Atwater Elementary School District v. California Department of General Services (2007) 41 Cal.4th 227, the California Supreme Court held that, with regard to Education Code section 44944, "the four-year time limitation is not absolute" and consideration of allegations outside the four-year window may be permitted if the employing school district demonstrates that an equitable tolling doctrine applies. AB 2128 simply provides express grounds permitting consideration of certain older evidence and testimony without having to prove and rely upon an equitable tolling theory.


AB 2128 provides additional opportunities for school districts that initiate disciplinary proceedings against permanent certificated employees to demonstrate patterns of inappropriate behavior with students.

For more information about this new law or about the certificated discipline process in general, please contact the authors of this Client News Brief or an attorney at one of our eight offices located statewide. You can also visit our website, follow us on Facebook orTwitter or download ourClient News Brief App.
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As the information contained herein is necessarily general, its application to a particular set of facts and circumstances may vary. For this reason, this News Brief does not constitute legal advice. We recommend that you consult with your counsel prior to acting on the information contained herein.