California Community Colleges Board Of Governors Release Revisions To Title 5 Of The California Code Of Regulations.

CATEGORY: Public Education Matters
CLIENT TYPE: Public Education
DATE: Dec 19, 2022

In late fall of this year, the Board of Governors of the California Community Colleges released revised regulations adopted and filed with the Secretary of State. The revised regulations can be found on the California Community Colleges website under the “Regulations Adopted and Filed with Secretary of State” section. LCW previously released a special bulletin on the new Title 5 regulations related to Campus Climate Public Safety. The updates to the Title 5 regulations are summarized below.

  1. Equal Employment Opportunity Plans

Revisions to Title 5 of the California Code of Regulations related to Equal Employment Opportunity (EEO) Programs, found in Sections 53000 through 53033, took effect on October 20, 2022, and apply to all community college districts.

This summary reviews and explains the most notable revisions to these regulations, including changes to the process for adopting and revising an EEO Plan; job announcements, screening, and selection procedures; and, EEO Plan components.

A. Adoption and Revision of EEO Plans

The Revisions to Title 5 contain a number of changes to how community college districts must adopt, review, and publish their EEO plans, as well as to what elements an EEO plan must contain.  For example, a district’s governing board must review and adopt the district’s EEO plan at a regular meeting, and it must be “agendized as a separate action item, and not part of the consent agenda.” (Cal. Code Regs., tit. 5, § 53003, subd. (a)(2) [hereafter, “Section” and applicable provision].)  A district must also submit its EEO plan to the Chancellor’s Office at least 90 days prior to its adoption and present any comments from the Chancellor’s Office to its governing board prior to adoption. (Section 53003(a)(4).)  The regulations also now require that districts post a copy of their EEO plan on their website. (Section 53003(d).)

Although EEO plans still cover a 3-year period, a district must now review its plan annually.  (Section 53003(a)(3), (b).)  This annual review must include an assessment of the district’s “progress toward meeting EEO program goals.” (Section 53003(b).)  And, if the “district has not met the program goals described in the EEO plan,” then it must “adopt a revised EEO plan that specifies the efforts it will employ to meet those goals.”

B. Pre-hiring, Screening, and Hiring for Jobs

The Title 5 revisions also codify requirements around certain pre-hiring, screening, and hiring practices.  For example, job announcements must now include, where applicable, “the possibility of meeting minimum qualifications through equivalency.” (Section 53022.)

Further, the regulations require certain actions by the District around monitoring and addressing applicant demographic data.  As before, districts must first screen all initial applications for a position to determine which candidates satisfy the job specifications; those candidates that meet the specifications form the “qualified applicant pool.”  The composition of the qualified applicant pool must still “be reviewed and compared to the initial applicant pool.” (Section 53023(b) & (d).)  If a district’s EEO Officer determines “that the composition of the qualified applicant pool may have been influenced by factors that are not job-related,” the district must take “appropriate action.” As before, regulations do not define the term “appropriate action.”  Now, though, districts must also “conduct an initial demographic review of the qualified applicant pool” before the application deadline for each position closes, and, “[i]f the pool’s candidate diversity is not consistent with the diversity goals of a district’s EEO Plan, the district may extend the search period.”  (Section 53023(c).)  EEO officers must now also monitor screening and selection techniques “to detect and address any adverse impact which does occur for the monitored group.” (Section 53024(a)(4).)

Finally, governing boards can reject candidates, order further screening, or reopen the position “where necessary to further achievement of the objectives of the EEO plan or to ensure equal employment opportunity.” (Section 53024(f).)  However, consistently “declining to hire qualified candidates from monitored groups against the recommendation of screening committees” could support an inference “that the selections are not consistent with the objectives of equal employment opportunity.”  This could include supporting an inference that a governing board that exercises its authority under this subsection is impermissibly considering protected class as a factor in a hiring decision.  Districts should therefore consult legal counsel before governing boards exercise such authority.

C. EEO Plan Components

a. Component 2 – Definitions

The revisions to Section 53001 contain a number of changes to key terms in EEO Plans.  The regulations now include individuals from different gender identities as one of the categories of individuals who should be present and respectfully treated for diversity.  In the definition of “equal employment opportunity” under subdivision (c)(1), the revisions added “reliance on preferred job qualifications that do not reasonably predict job performance” as an example of a non-job related barrier to employment.  The revisions also added subdivision (c)(2) and notes that equal employment opportunity involves “updating job descriptions and/or job announcements to reflect accurately the knowledge, skills, and abilities of the position, including a commitment to equity.”  Also notable is that the revisions updated subdivision (e) to reflect that EEO programs “should be informed by a district’s longitudinal workforce and applicant analyses.”

b. Component 3 – Policy Statement

The revisions indicate that an EEO plan’s recommended policy statement must include the “district’s commitment to an EEO plan that is grounded in the principles of diversity, equity and inclusion set forth in sections 51200 and 51201” and recognize that EEO “includes not only a process for equal opportunity in hiring but also practices and processes that create inclusive respectful work environments.”  (Section 53002.)

c. Component 5 – EEO Advisory Committee

Instead of an EEO Advisory Committee having diverse membership “whenever possible,” the regulations now provide that a district EEO Advisory Committee must be comprised of a diverse membership, including members from “district stakeholder groups,” such as “students, faculty, and classified staff.”  (Section 53005.)

d. Component 6 – Complaints

Revisions to the regulations require that complaints that allege violations of the EEO Programs requirement may be made and investigated pursuant to the procedures for unlawful discrimination complaints under Title 5.  (Section 53026.)

e. Component 8 – Training

In addition to a district’s EEO Advisory Committee, all governing board members must now receive training on the following:

  • EEO Programs requirements and the requirements of state and federal nondiscrimination laws;
  • Identification and elimination of bias in hiring;
  • The education benefits of workforce diversity; and
  • The role of the EEO Advisory Committee and drafting and implementing a district EEO Plan.

(Section 53005.) LCW regularly conducts these trainings for community college districts.

f. Component 11 – Underrepresentation Analysis

Districts must continue to conduct and assess longitudinal data gathered in order “to identify and determine the cause of any underrepresentation, of monitored groups” in pre-hiring, hiring, and post-hiring processes.  (Section 53006(b).)  The revised regulations, however, now require that when “a district determines that significant underrepresentation or adverse impact of one or more monitored groups in recruitment may be the result of non-job related factors,” it must mitigate the issue by implementing additional strategies in its EEO plan.  However, Section 53006 no longer lists specific additional measures that districts must implement, providing flexibility to assess and implement strategies appropriate for that particular institution.

g. Component 13 – Implementation of EEO Strategies and Timelines

EEO plans must now not only identify what “specific pre-hiring, hiring, and post-hiring EEO strategies” it intends to implement, but also include a timetable for when it will do so in its EEO plan.  (Section 53003(c)(1-2).)

  1. Annual Audits

The revised regulation related to the Annual Audit Reports Due Date is found in Title 5 of the California Code of Regulations section 59106 and took effect on October 6, 2022. The prior regulation required each district to file its annual audit reports for the preceding fiscal year with the Board of Governors, the Department of Finance, and other regulatory agencies in accordance with Section 84040.5 of the Education Code no later than December 31.

The new regulation provides that each district “shall file an audit report with the Chancellor’s Office, and with other agencies specified in the Chancellor’s Contracted District Audit Manual, for the preceding fiscal year no later than December 31, unless this date is extended by the Chancellor’s Office.”

Accordingly, community college districts should file their annual audit report with the Chancellor’s Office and with other agencies specified in the Chancellor’s Contracted District Audit Manual no later than December 31 unless that date has been extended by the Chancellor’s Office.

  1. Ethnic Studies Requirement

The revised regulation related to the Ethnic Studies Requirement is found in Title 5 of the California Code of Regulations section 55063 and went into effect on October 20, 2022.  Whereas the prior regulations merely required ethnic studies to be offered in one of the areas described in the General Education (GE) Requirements section (Natural Sciences, Social and Behavioral Sciences, Humanities, English Composition, and Communication and Analytical Thinking), the new regulations elevate ethnic studies to a separate GE requirement on par with those other areas.

The new regulations provide that an associate degree requires satisfactory completion of a transfer-level course (a minimum of three-semester units or four quarter units) in ethnic studies. This requirement may be satisfied by obtaining a satisfactory grade in a course in ethnic studies taught in or on behalf of other departments and disciplines.

  1. Excused Withdrawal and Pass-No Pass Grading Option

The revised regulation related to Excused Withdrawal and Pass-No Pass Grading Option is found in Title 5 of the California Code of Regulations sections 55000 and 55024 and took effect on October 20, 2022.

The previous regulation defined “CR” as a symbol for “credit” used to denote that a student received credit for satisfactory work in a course taken on a “credit-no-credit basis” prior to the Fall 2019 term. The revised regulation expands the definition of credit to include credit given by a different institution that uses the “credit-no credit” symbol, and “pass” in a “pass-no pass” grading system. Similarly, the revised regulation expands the definition of “NC” or “no credit” to be the equivalent of a “no pass” in a “pass-no pass” grading system.

The revised regulation also clarifies that for courses in which students are evaluated on a “pass-no pass basis,” students may elect until the last day of instruction, as established by the district, whether to be evaluated on a “pass-no pass” basis or a letter grade. This differs from the prior regulation, which had a deadline of no later than the end of the first 30 percent of the term for students to decide whether they wanted to be evaluated on a “pass-no pass” basis or a letter grade. Students now have until the last day of instruction to decide whether they want to be evaluated on a “pass-no pass” basis or a letter grade.

Section 55024 addresses the changes made to procedures for student withdrawals from courses. It provides that districts must publish student withdrawal procedures in the course catalog and that students must notify the college registrar of the withdrawal. The revised regulation includes updated timeframes and further clarification for students who withdraw from a course during the term due to military orders or extenuating circumstances. Military withdrawals and excused withdrawals for extenuating circumstances are not counted in progress probation and dismissal calculations, or toward the permitted number of withdrawals or an enrollment attempt.

  1. Chancellor’s Office Information and Data Requests

The regulation related to Chancellor’s Office Information and Data Requests is found in Title 5 of the California Code of Regulations section 52012 and took effect on October 20, 2022.

Section 52012 provides that a community college district must respond to a written request for information or data within ten days from the Chancellor, which expressly invokes the requirements of this section. The regulation further provides that the Chancellor’s request shall provide a statement identifying the information or data requested, the method and format of the required response, the purpose of the request, and a point of contact in the Chancellor’s Office with knowledge of the request. If the request requires the disclosure of student records, the request must also specify the legal basis for sharing that information or data. Districts must also provide the Chancellor with current contact information to receive information and data requests made pursuant to section 52012.

  1. Distance Education

The revised regulations related to Distance Education are found in Title 5 of the California Code of Regulations sections 55005, 55200, 55204, 55206, and 55208 and took effect on November 4, 2022. Community college districts are now required to provide additional information to students related to publicizing course standards for distance education courses. The new regulations also provide further clarification on instructor contact, course approval, faculty selection, and workload.

Section 55200 defines “distance education” as education that uses one or more of the technologies listed within the section to deliver instruction to students who are separated from the instructor and to support “regular and substantive interaction” between the students and instructor either synchronously or asynchronously. The definition of distance education does not include correspondence courses.

Prior to students enrolling in a course, a community college must disclose whether the course is offered in a distance learning format, and if so, it must also specify: (1) all online and in-person synchronous meeting days/dates and times; (2) any required asynchronous in-person activities; (3) any required technology platforms, devices, and applications; and (4) any test or assessment proctoring requirements.

Districts must also ensure that courses conducted through distance education include regular and substantive interaction between the instructor and students. Under the revised regulations, substantive interaction means engaging students in teaching, learning, and assessment, consistent with the content under discussion, and also includes at least two of the following: (1) providing direct instruction; (2) assessing or providing feedback on a student’s coursework; (3) providing information or responding to questions about the content of a course or competency; (4) facilitating a group discussion regarding the content of a course or competency; or (5) other instructional activities approved by the institution’s or program’s accrediting agency.

The regulations in section 55206 specify that if any portion of the instruction is provided through distance education, the course outline of record or an addendum to the official course outline of record shall address how course outcomes will be achieved, and how the portion of instruction delivered via distance education meets the requirement for regular and substantive interaction. The course design and materials must also be accessible to every student, including students with disabilities.

Section 55208 clarifies that instructors of distance education courses are responsible for delivering course content that meets the qualifications for instruction established by an institution’s accrediting agency.

Community college districts offering distance education courses should ensure that their course outline of record addresses the changes in the regulations.

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