Luck of the IDEA: Navigating the 21 vs. 22 Decision

March is here.  Brackets are about to come out.  (Duke? Michigan?)  Office pools are forming.  (Maybe we should invite school administrators to join our KSB pool?)  And across Nebraska, administrators are starting to notice something else creeping up on the calendar: students approaching age 21.  

If you’ve looked at the 21 vs. 22 services question lately and thought, this feels less predictable than filling out a March Madness bracket, you’re not wrong.  We know many districts are asking the same question: What exactly are our obligations right now?  And if the answer seems murkier than it did a year ago, that is because it is. 

The Legal Background

On May 30 of last year, the Nebraska Department of Education issued a decision from a due process hearing officer concluding that Nebraska law required a district to provide special education services to a student until her 22nd birthday. 

The Department of Education has taken the position that the decision applies only to that individual student. It has advised school districts to continue dismissing students from special education at the end of the school year when they turn 21. 

Parents of students turning 21 have strongly disagreed. In December, a group of parents filed a class action lawsuit against the Nebraska Department of Education seeking a ruling that students must receive FAPE until age 22. The Department has filed a motion to dismiss, and the parents have filed their response. 

What This Means for Districts  

In short, the law is unsettled. Federal litigation rarely moves quickly, and this issue will not be fully resolved before the end of the school year. 

Unfortunately, districts do not have the luxury of waiting for the courts. Summary of Performance meetings and IEP reviews for these students are happening now. Districts will need to choose how to proceed, and each option carries different legal considerations. 

Special Rookies & Refreshers “Bonus” Session

Because we anticipated this issue early in the school year, we scheduled a bonus session as part of our Special Education Rookies and Refreshers webinar series. Given the number of questions we are receiving, we have decided to open this session to any Nebraska school district that would like guidance. 

During this one-hour webinar, we will cover:

• The due process decision issued last spring

• The Nebraska Department of Education’s current position

• The status of the pending federal litigation

• Practical options for handling students who have turned, or soon will turn, 21

Participants will also receive sample documentation to accompany the various possible approaches and the legal risks associated with each. 

When Is It? 

Tuesday, March 17, 2026

12:00–1:00 PM Central Time

Live on Zoom

The session will also be recorded for districts that cannot attend live or would like to share the recording internally.

Cost

For districts not enrolled in the Rookies & Refreshers series, the cost is $150 per district. To register, click here. 

If you already have signed up for Special Ed Rookies and Refreshers, this session is free of charge, and you do not need to register.  If you have any questions, please email shari@ksbschoollaw.com.

LB 653: Option Enrollment and Student Discipline Act Changes

Every legislative session starts the same way: a stack of education bills, a lot of confident predictions, and absolutely no agreement about what will actually happen.

But here’s one thing we already know about this session.  Schools are going to have homework.

Your first assignment is  LB 653, which will become effective on July 17 (assuming the session adjourns on time).  LB 653 makes meaningful changes to option enrollment and the procedures that you must follow under the Student Discipline Act.

Option Enrollment Changes.  Once effective, LB 653 will require school districts to “automatically accept applications for siblings of option students enrolled in the option school district without regard to capacity limitations.”  Obviously, this change will affect how you accept or reject option applications, and school boards will need to update their board policies on option enrollment and board resolutions setting various capacities for option students.  

Even though LB 653 will not be law until this summer, school administrators should be proactive in assessing the implications of LB 653 as they review option applications this spring.  KSB full policy service subscribers: check the portal for a memo that gives you actionable advice on how to respond to option applications now that LB 653 has passed but before this year's policy updates go out.

Student Discipline Act Changes.  The other main component of LB 653 concerns changes to the Nebraska Student Discipline Act.  For example, there are changes to the circumstances under which you can suspend certain students and new requirements to provide certain written notices earlier in the student discipline process.  More than mere technical paperwork, these changes will require your administrators to consider your practices in responding to incidents of student misconduct in light of the new mandatory procedures.  

Thankfully, these changes should not affect your discipline decisions until next school year.  We will be hosting a Student Discipline Workshop to bring attendees up to speed on these new requirements and to refresh best practices to student discipline.

If you have any questions about LB 653, option enrollment, or student discipline, please do not hesitate to reach out to Karen, Steve, Bobby, Coady, Jordan, Sara, or Amanda at (402) 804-8000 or all of us at ksb@ksbschoollaw.com. 

March Madness: Student Discipline That’s Ready for 2026–27

We know it’s early, but if you have opened a legislative update this session and thought, here come updates to our policies, handbook, and forms, you’re right.  While there’s just under half the session remaining, LB 653 is already over the finish line.  Among other provisions requiring policy updates (like option enrollment), the bill makes procedural and substantive changes to the Nebraska Student Discipline Act.  

For KSB Policy Service Subscribers, we plan to release policy and handbooks updates in mid-May and will conduct our annual policy update webinar in early June.

KSB’s Plan for SDA Changes  

The changes to the Student Discipline Act will require handbook, policy, and form updates prior to the 2026-27 school year.  But more importantly, they’ll require you to adapt how you process individual discipline decisions.  For example, the new law sets up a modified system to get the affected student’s side of the story on the front end, and it requires additional information in your procedures and your notice letters for short- and long-term discipline and emergency exclusion.

To make sure you are prepared, KSB is hosting a Student Discipline Workshop this June designed specifically to get Nebraska administrators ready for the 2026-2027 school year.  We’ll cover the Unicameral’s changes to the Student Discipline Act in detail, with a focus on practical implementation.  We picked June because most principals are still under contract, and most boards approve handbook updates in July.  Your admin team will need some time to decide how these changes will affect your processes. 

Here are the details:

Date: June 18, 2026
Time: 10:00 a.m. – 3:00 p.m. CST
In-Person Option: KSB Offices, Lincoln, Nebraska
Virtual Option: Live Zoom broadcast (with Q&A)
On-Demand Option: Available shortly after the live training on KSB’s portal. Those who attend will continue to have access to the recorded training afterwards, as well.
Forms: All attendees (live, virtual, on-demand) will have access to continuously updated forms throughout the 2026-2027 school year.

Click here for pricing and to register.

In-person attendees will join us at the KSB offices in Lincoln. Lunch is included, followed by a casual happy hour for those who want to stay and connect with colleagues.  We will make space as needed in Lincoln, but seating will be limited. If you prefer to attend onsite, secure your seat by registering early.

Also Introducing the KSB Hearing Officer Certification (On Demand)

At the same time as the June workshop, we will release a separate, on-demand Updated Student Discipline Hearing Officer Training through the KSB portal.  The Hearing Officer Certification will be available independent of the June workshop and may be purchased separately.

This approximately two-hour session will include the full training necessary to serve as a hearing officer in Nebraska. It will include updated hearing officer forms and procedural guidance aligned with current law.

Participants who complete the program will receive official KSB certification, allowing districts to document that their hearing officers have current training and access to up-to-date materials.  We also plan to maintain a list of fully trained and certified hearing officers that we can share with clients who receive discipline hearing requests and need to act quickly to secure a hearing officer on short timelines.

If you have any questions about KSB’s plan for policy updates, SDA training, or the likely seeding for the Husker men’s basketball team come March Madness, drop us a line or give us a call.

Spring Staffing and Statutory Deadlines: What Nebraska Districts Need to Know

As spring approaches, Nebraska school districts begin planning for the upcoming school year. Every year, we get the same question: what’s the difference between a “letter of intent” and a “renewal agreement.”  Truthfully, we don’t care what you call the document.  The question is whether it is legally binding.

Under Neb. Rev. Stat. § 79-829, a district may require certificated employees to “accept employment” for next school year as early as March 15.  If they accept, it’s binding, with a caveat on resignations discussed below.  If the certificated employee fails to accept employment upon written request of the school board or the administrators, their contract can be nonrenewed or terminated (in which case the administration would need to follow all of the relevant procedures for doing so, including issuing notice no later than April 15 of the  proposed nonrenewal or termination, as the case may be).  However, no certificated employee can be required to accept employment until March 15.

Therein lies the rub.  If you intend to ask staff to formally accept employment, your document (whether an agreement or letter) should say so clearly, referencing the statute.  We strongly recommend renewal agreements to remove all doubt.

Here’s catch #1.  Let’s say you use binding renewal agreements due back to the superintendent by March 15.  However, your negotiated agreement or board policy say staff can resign as late as April 15.  At a practical level, your March 15 renewal agreement may not be binding at all as long as the employee submits a resignation by the later deadline.

Here’s catch #2.  By law, the statutory deadline to issue nonrenewal or termination notices is April 15.  However, if you give that struggling staff member a renewal agreement, it’s binding, and they sign it, you can no longer issue that notice of nonrenewal or termination.  You can’t “renew” them and then try to nonrenew or terminate them after the fact.  If you’re not sure if that employee can meet expectations, don’t issue them a renewal document.

Your homework: look at your current renewal document (whether a letter or agreement), your board policy, your handbook, and your negotiated agreement.  Every year, a handful of schools think they’re handling this correctly but end up with surprises when staff are able to resign later.  If you’ve read all this and aren’t sure what your system is or if it’s set up the right way, you should contact your school attorney.

Careful attention to these statutory timelines is essential to avoid unintended renewal issues or procedural missteps.  There’s a time to act and a time to think…and this is one of those times to think!

The Only Write-Off You Can’t Take: Missing the April 15 Deadline

Every spring in South Dakota, April 15 means more than taxes.  For school administrators, it is also contract season.  South Dakota Codified Law Chapter 13-43 lays out how teacher contracts work, when notices must be given, and what rights attach after a teacher has been employed for a certain period of time.  Understanding those rules and how they differ from administrator contracts is essential to avoiding unpleasant surprises.

SDCL 13-43-6.3 governs the nonrenewal of teacher contracts.  For teachers who have not yet completed four consecutive terms of employment in the same district, often referred to as probationary or nontenured teachers, the school board has broad discretion to renew or not renew a contract.  No statutory “cause” is required at that stage.  However, just because a teacher is considered probationary/nontenured does not mean that the requirement to provide notice is optional.  These teachers must still receive timely written notice of nonrenewal by April 15.  Once a teacher reaches the fourth consecutive term, continuing contract (i.e. tenure) rights come into play.  At that point, nonrenewal must be based on statutory grounds and follow required procedures, including proper notice and the opportunity for a hearing.  Under SDCL 13-43-6.3, written notice of a recommendation to not renew a tenured teacher’s contract must be provided on or before April 15.  

Administrator contracts operate differently.  The continuing contract framework in chapter 13-43 is designed for teachers, not administrators.  Principals, superintendents, and other administrators do not acquire statutory continuing contract rights after four years.  There is no tenure-like protection built into SDCL 13-43-6.3 for administrators.  Instead, administrators’ rights are defined by the terms of their individual contracts and applicable board policies.  An administrator is not “nonrenewed” in the same statutory sense as a teacher; rather, the contract simply expires according to its terms unless renewed.  If a board wishes to end or decline to extend an administrator’s contract, the governing document is the contract itself, not the teacher continuing contract statutes.  If you have not issued administrator contracts for the 2026-27 school year, now is a great time to have them reviewed by legal counsel to ensure they do not grant any tenure rights in favor of administrators that are neither required nor intended.  We also offer standard principal, superintendent, business manager, and administrator contracts, in addition to teacher contracts. 

If you have any questions about this process and would like to walk through your administrator or teacher contracts, please reach out to us at ksb@ksbschoollaw.com.

Spring Professional Development: Two Easy Options

If you’re starting to think about spring professional development and wondering how to fit one more thing into an already full calendar, we can help.  We offer two professional development options that respect teachers’ time and focus on the decisions they actually make every day.

Option 1: On-Demand Video Series

Our new on-demand series is designed for maximum flexibility and minimal disruption:

What School Attorneys Wish Teachers Knew: Legal Perspectives on Everyday School Decisions

• 10 short videos

• Each video runs 10–12 minutes

• Includes discussion questions if you want teachers to debrief with others

Option 2: In-Person Staff Inservice

For schools that prefer live professional learning, we offer in-person staff inservice sessions tailored to your needs.  These sessions focus on real scenarios educators face, provide clear guidance, and leave room for questions that usually start with, “What if…”

If you’re planning spring PD, we’re happy to talk through what would work best for your staff.  Shoot us an email at ksb@ksbschoollaw.com to discuss options and cost.

New 1099 Thresholds: What to Know Now

Is that the chill of a winter storm we feel coming? Or is it just the frigid heart of tax season bearing down on us all? 

One quick update to keep on your radar: 1099 reporting thresholds.

Beginning with payments made after December 31, 2025, the IRS has increased the reporting threshold for Form 1099-MISC and Form 1099-NEC:

• Old threshold: $600

• New threshold: $2,000

This change will be indexed for inflation after 2026, meaning the threshold will almost certainly continue to adjust in future years.

What does this mean for schools? While this won’t impact reporting for the 2025 tax year, it’s a great time to start planning ahead—especially if your school regularly works with independent contractors, consultants, or other non-employees.  As a reminder, we recommend routinely seeking updated W-9s from those individuals.  Lastly, the IRS published instructions regarding these form updates on December 23, 2025.  They are available here. 

If you run into any questions this tax season, our email is ready at ksb@ksbschoollaw.com 

Cold Weather, Hot FMLA Questions

January brings snow days, icy sidewalks, and that perennial winter question: Does this count as FMLA? Yes, it’s mostly lawyers who lose sleep over it. The good news: the Department of Labor has finally cleared the fog—so, for once, attorneys can rest easy, and you can too, just in time for the next weather closure. (P.S. If you need a quick refresher on FMLA leave, before diving into this blog, click here. We also have FMLA training videos available for purchase here.) 

According to the recent letter from the Department of Labor, when faced with a school closure, determining how to count FMLA depends on the type of FMLA leave the employee is using. 

Scenario 1: Employee Is Using FMLA for Less Than a Full Week

Intermittent leave is only available when medically necessary or if agreed to by the employer.  If an employee is approved for intermittent or reduced-schedule FMLA leave, and the school closes for one or more days during that week, and the employee is no longer expected to report to work during the closure, that time does not count against the employee’s leave entitlement. 

• Example: A teacher takes FMLA leave every Friday to care for a parent who has a serious health condition. If the school is closed on Friday due to icy conditions, the day does not count against the employee’s FMLA entitlement because the employee was not required to report to work.

Scenario 2: Employee Is Using FMLA for a Full Workweek

If an employee is on continuous FMLA leave for the entire workweek (which is the default approach), and the school closes for less than a week, then the entire week still counts as one full week of FMLA leave. This means the closure does not reduce the amount of FMLA leave used.  It’s still 1/12 available FMLA leave weeks.

• Example: A teacher is taking bonding time leave after the birth of a child for the next 12 weeks, and the school is closed on Wednesday that week due to snow. Even though the employee is not required to report to work, the employee still uses a full week of FMLA leave. 

The letter clarifies the following do not impact how FMLA leave is counted: 

• Whether the closure was planned or unplanned.

• The reason for the closure (weather, utilities, emergencies, etc.).

• Whether the school later schedules a “make-up” day (an employee’s need for FMLA leave on a make-up day is evaluated independently).

Here’s to clear skies, calm forecasts, and fewer leave questions ahead. But as always, if those questions arise, drop us a message at ksb@ksbschoollaw.com. 

Before Hotmail Was Hot: FERPA’s Pre-Email Predicament

FERPA debuted in the ’70s—an age of rotary phones, typewriters, manila folders—not exactly the dawn of digital communication. Because of that, FERPA’s original framework didn’t contemplate the advent and rise of Hotmail in 1996 (side note: if you still have your Hotmail account, impressive). Since that time, schools and courts have had to figure out how email communication (and DMs on Facebook) intersects with FERPA obligations. 

Under FERPA, an education record is any record that (1) directly relates to a student, and (2) is maintained by the school district. 34 C.F.R. § 99.3. Back in the day, the concept of an education record was simple; it was the hard copies of information that the school locked away in a student’s file in its filing cabinet. 

Questions in 2025 are different.  With email, when does an email that includes a student’s name or school email address begin to relate to that student directly? At what point does a district “maintain” that record? As recently as April 2025, the Student Privacy Policy Office, the federal office tasked with FERPA compliance, recognized that the Department has not “issued any subsequent formal guidance or regulations that specifically addresses the applicability of FERPA to emails.” Letter to Monogue. However, a recent case out of Nevada sheds some helpful light on this very issue.

In the case Clark Cty. Sch. Dist. v. Eighth Judicial Dist. Court, No. 89127, 2025 Nev. LEXIS 66 (Nov. 26, 2025), the court looked at whether emails that are broadly stored in a district’s Google Workspace are education records. Even assuming an email “relates” to a student, the court reasoned that emails may constitute education records, but to be an education record, “the email relating to the student must be deliberately stored by the records custodian as part of that student's records.” 

The word “deliberate” aligns with the historic understanding of what it means to “maintain” a record.  It means that there is an intentional choice to “maintain” the email, as defined by policy.  Emails that exist within the school’s email system lack that intentionality and, according to the court, were not “maintained”. The court further emphasized that just because an email mentions a student, that does not necessarily mean the email “directly relate[s] to and bear a close connection to the student.”

Now, even though this opinion is out of Nevada, districts in other states can walk away with a few important lessons from it.

1. Review your district’s policy. The court, in part of its reasoning, looked to the district’s definition of education record to support its finding that emails sent in the ordinary course of business were not automatically education records.  Nowadays, there are all kinds of records (i.e., attendance and discipline file, grade books, student support services folder, etc.). Your policy should focus on what it means to “maintain” a record, rather than focusing on the type of record. 

2. Routine storage in email servers/databases is not the same as intentional maintenance, assuming your policy defines maintain appropriately. It may be helpful to chat with your tech person to understand better the life of an email in your district’s digital domain.  Clarify with staff what it means to “maintain” records based on your policy. 

3. Emails CAN be education records, even if not specifically identified in your district’s policy. Whether an email is an education record comes down to that fundamental definition: it must (1) directly relate to the student and (2) be maintained. There may be instances where an email (for example, an email sent by an administrator documenting a disciplinary incident and saved in a student’s disciplinary file) is an education record. 

As always, if you have questions, email us at ksb@ksbschoollaw.com, and we may or may not promise that your email will become part of your KSB education record. 

PPACA Reporting 2025: The “Most Wonderful Time of the Year” for… Paperwork?

Just as the holiday season brings its annual flurry of festivities, so too does the other seasonal tradition you know well: PPACA reporting.  Administrators--if your business officials have attended the PPACA reporting workshop before, they also received an email from Shari, but you should forward this on to them just in case.  If you have a new business official, share this like it’s hot.

While the Patient Protection and Affordable Care Act (PPACA) reporting obligations are more than a decade old, they continue to be a source of confusion, especially for those who only dust off the requirements once a year.  Luckily, the 2025 reporting year brings only modest changes, but still enough updates and reminders to justify a fresh review of your processes before you’re buried under a blizzard of 1095-Cs.

Below is a summary of what school districts need to know as we head into 2025 and an invitation to join us for our annual PPACA webinar, where we’ll walk through everything in detail.

What’s New (or Newly Important) for 2025?

1. Electronic Filing Threshold Remains Low

As of last year, the IRS permanently lowered the electronic filing threshold to 10 forms total across all information returns combined.  That means nearly every school district will be required to file 1094-C/1095-C forms electronically.  Now is the time to double-check with your accounting software provider regarding end of the year trainings and verify that your login information works for the IRS AIR system.  

2. Continued Enforcement of Good-Faith Relief Expiration

The IRS has not reinstated good-faith penalty relief.  This means errors in coding or late submissions can result in significant penalties.  Because the IRS is increasingly using automated matching systems to identify discrepancies, accuracy matters more than ever.

3. Affordability Percentage

In 2025, the PPACA affordability threshold is 9.02% of household income.  The IRS recently released the 2026 threshold which is 9.96%.  School districts should review employee premium contributions to confirm compliance.  In the webinar, we’ll explain how these thresholds apply to plans like schools and ESUs have in place, where the insurance year changes over in the middle of the calendar year.

Join Us: Annual PPACA Update & Reporting Webinar

Just as holiday decorations reappear each year, so does PPACA reporting season.  To help ease the process, Bobby and Sara will once again host the Annual PPACA Webinar. We will cover annual reporting requirements, common mistakes we see our clients make annually, a legal update for 2025, and what to look for in 2026.

Date and Time: Wednesday, December 17, 2025 from 9:00-12:00

Where: The webinar will be conducted via Zoom, and all participants will be able to ask questions during and after the presentation.  All registrants will receive a copy of the slides, materials used in the webinar, and this year’s version of the instructions and forms, plus IRS documents establishing affordability, reporting deadlines, etc.

Cost: The cost will be $350 per school.

Register here. 

If you have any questions, please do not hesitate to contact us at ksb@ksbschoollaw.com or 402-804-8000.

What South Dakota Schools Need to Know About the 2026 Election Changes

Beginning January 1, 2026, school district elections in South Dakota will operate under updated laws as a result of the 2025 legislative session and HB 1130.  Under SDCL § 13‑7‑10, districts must hold their annual election the first Tuesday after the first Monday in June or the first Tuesday after the first Monday in November.  In 2026, these dates are June 2, 2026 or November 3, 2026.  This means if you were a district that held annual elections in April you must change your date starting in 2026.  Any district selecting a June election should calendar notice deadlines for publication as they are fast approaching in December.  The Secretary of State recently released the school election calendar timeline here. 

For a June 2026 election, the vacancy‐notice period requires publication of vacancies no later than December 15–30, 2025 (six months before).  Additionally, the January board meeting is the deadline for districts to establish an election date.  Beyond scheduling and notices, districts must also ensure proper training and oversight of the election process for each election.  Under § 12‑15‑7 (which applies to schools because of § 12-1-1) the school business manager is required to convene the precinct superintendents at a convenient time and place prior to each election to instruct them on election laws and duties.  The training materials from the Office of the Secretary of State reinforce that the person in charge of the election should conduct training with assistance of the school’s legal counsel.  As you prepare to enter election season, coordinate with your school attorney what that election training may look like - either in person or via Zoom.  (We are also considering an on demand option so please reach out if there is interest in such a training.)

If you have any questions as you review the new laws regarding elections or need a school board resolution to set your election date, please do not hesitate to contact us at ksb@ksbschoollaw.com.

Turning the Page: Nebraska’s New Library Catalog Law for Schools

Books, we love them!  School libraries, our favorite!  The work required by LB 390?  Not so much.  The Unicameral passed LB 390 in 2025 which requires school boards to adopt a policy relating to parent, guardian, or educational decisionmaker (the law calls them all “parents”) access to certain school library information.  This bill now lives as law at Neb. Rev. Stat. 79-533.04.  This law may not sound like a page-turner, but trust us, this one’s got plot twists.

What’s Required?

Before school starts in fall 2026, every Nebraska school district will need to adopt a Board Policy that does two key things:

1. Requires the creation of a catalog of all books in the school district’s library, organized by school building.  This catalog must be accessible to parents.

2. Provide the “opportunity” for a parent of a student to be notified when the student checks out a book, including the book’s title, author, and due date.

Sounds simple? Well, like most new legislation, the details matter yet there aren’t enough.

Paper or Pixels — Your Choice

Good news: The law doesn’t demand anything fancy.  Your “catalog” doesn’t have to sparkle online, and a paper binder would do, as long as it’s accessible to parents.  That said - the vast majority of schools use digital catalogue systems already so it may be simple to allow parent access.  Similarly, the “notification” can be an email, push notification from an app, or via a website. 

Defining “Books” 

The law only applies to “books” in the school’s library.  That means traditional hardbacks and paperbacks are covered.  But what about periodicals?  Or eBooks?  The law simply does not provide any answers.  It clearly uses the word “books” in the catalog and parental notice sections, yet references the broader term “library materials” in another part of the statute.  Legislators are presumed to use different terms intentionally, so we think your initial focus should be on “books.”  

When judges aren’t sure what a word means, they often look at a contemporary dictionary.  Merriam-Webster online defines “book” as “a set of written sheets of skin or paper or tablets of wood or ivory.”  That’s fun.  An alternative definition is “a set of written, printed, or blank sheets bound together between a front or back cover.”  Cool.  Take that and go forth!

The Opt-In Plot Twist

The law requires schools to give parents the opportunity to be notified; in other words, they must opt in.  So, schools will need to design a simple way for parents to sign up and track who wants notifications.  That means thinking ahead about:

• How to collect and manage opt-ins (paper, online, have parents mail the school a form, etc.);

• How to keep records of which parents opted in;

• How you may want to provide notices for parents who have opted in;

• What happens if your librarian or media specialist is out sick the day a student checks out a potentially controversial book?

Practical Tips for Districts

While the 2026-2027 school year sounds far away, don’t wait until the final chapter.  Work with your media specialists and tech staff to start outlining your district’s approach. Consider:

• Is your library system ready for this?

• How will you ensure catalogs stay up-to-date?

• How can you make the process consistent across multiple school buildings?

• How will you train staff (and communicate with parents) about the change?

End Notes

We agree with one of our favorite colleagues (ahem, Steve) who put it best: “Don’t wait until the last minute to start working on this.”  The policy itself is the easy part.  You have plenty of time to adapt a policy to your practices, but first you need to figure out what your practices will be.  The hard part is what you need to do in the upcoming months.  Start on a plan now to work with your media specialist(s) to understand your current systems and options available for the catalog and parent notice obligations.   

We have a sample policy drafted that meets the basic legal obligations, but again, the policy should not be where your focus is for now.  We will have the policy available for subscribers to download from our portal.  If you’re not a subscriber but are interested in seeing KSB’s model policy, reach out to one of us.  If you have any questions, please shoot us an email at ksb@ksbschoollaw.com. 

Before You Hit Send

As the school year continues to march forward, sometimes it becomes tempting to want to rage reply to a coach who continues to bother you about the booster club tailgate loosen up email practices. We figured now is as good a time as ever to highlight a few basic email reminders that we have seen creeping up as issues for some. While this may seem like a strange topic for lawyers to blog about, we have been in too many cases where well-intended board members, administrators, teachers, and other employees would really like a do-over on communications they sent.

Double Check the Recipients and Attachments

Accidentally hitting “Reply All” or attaching the wrong document is more common than you think and can lead to real FERPA or confidentiality headaches, open meetings issues, and more. Double-check those attachments and give your “To,” “CC,” and “BCC” the once-over. 

Emails Have a Long Shelf Life

Emails sent from school district and service agency or cooperative accounts (and sometimes even personal accounts if used for school business) can be subject to public records requests, discovery, state complaint documentation submission requirements, or internal review. Writing with that in mind helps you stay compliant and protects both you and your district or service agency/cooperative. Always write an email with the thought that it might be read by the Department of Education, an external investigator, and a hearing officer. 

Once You Hit Send, It Is Out of Your Control 

Sometimes emails can take on a life of their own. Once we send something, the recipient has the power to forward and disseminate (even if they shouldn’t) as they see fit. Start from the premise that every email you write could be forwarded, and ask yourself, “Would I be comfortable with this being shared at a board meeting, news outlets, or on Facebook?” If the topic is especially frustrating or contentious, a good practice is to draft the email, but then hold off on sending right away. Get a cup of coffee, walk around the building, and then come back and revisit what you drafted. It’s never a good idea to fire off a quick response in the so-called “heat of the moment.” Give yourself a chance to reflect on whether your email is professional and educationally appropriate before you hit “send.” This is especially true when dealing with difficult situations where you may be close to implementing a “communication diet” or even a ban-and-bar letter. Looking reasonable in all communications up to that point is helpful.

These may seem obvious, but trust us, we get that it’s easy to let the hecticness of all the other aspects of your job push some of these considerations to the side. With that being said, feel free to send your most ready to be forwarded to the world questions to ksb@ksbschoollaw.com. 

Just a quick note: unless your district is already a KSB client, reaching out doesn’t create an attorney-client relationship, and you’ll want to skip any confidential or privileged details in your first message. Once you’re a client however, venting to your attorney (and only your attorney) in an email is the only safe space to vent.  

The Life of a Showgirl: Keeping Student Records Out of the Spotlight

Ever since Taylor dropped The Life of a Showgirl, our office chat hasn’t known peace. The “youth” (minus Jordan but including Bobby) are big fans, while the “olds” (non-derogatory) seem not to understand the cultural importance that is unfolding. But amid all the debate, we found a theme worth borrowing: knowing when to step out of the spotlight. That’s a lesson worth remembering when it comes to student records and a district’s obligations under FERPA. 

Here a few quick FERPA reminders: 

1. FERPA Doesn’t Forbid All Disclosures — Just Unauthorized Ones. Schools can share information without consent only if an exception applies, such as with school officials who have a legitimate educational interest, during health or safety emergencies, or under court orders. When in doubt, pause before sharing and check if an exception applies.

2. Surveillance Videos Can Be Education Records. If a school video is retrieved or used for discipline or maintained in a student’s file, it may become an education record subject to FERPA. Parents may view such videos if redacting other students is impossible without destroying the meaning.

3. Staff Conversations Count. Sharing information from education records in a verbal comment can violate FERPA if it’s shared with someone who lacks a legitimate educational interest or another applicable exception. Confidentiality applies to conversations about protected information as well as documents.

4. Confidentiality Extends Beyond Staff — Train Volunteers and Chaperones. Parent chaperones, tutors, community coaches, and volunteers often see or hear sensitive information during school activities. Provide brief FERPA, IDEA, and 504/ADA privacy training before things like field trips or volunteer events to prevent unintentional disclosures or “gossip” that can violate student confidentiality. 

Looking for a quick training solution? We have a free seven minute training video you can show volunteers and chaperones on FERPA available here.  As always, if you have any questions or want to talk training options (Section 504, IDEA, specific coaching and substitute teacher trainings, etc.), feel free to reach out to your favorite showgirls (ok–that’s a stretch) at ksb@ksbschoollaw.com. 

Ps. With administrators and board members often rotating roles, it’s easy for key updates to slip through the cracks. Make sure your entire leadership team stays in the loop, forward this post to them, or better yet, ensure every administrator and board member is subscribed to the KSB Blog. That way, no matter who’s in the seat, everyone stays informed.

New faces on your board or admin team? Share this post and encourage them to subscribe! It only takes a moment—just click this link and enter your information in the boxes on the right-hand side of the page.

The One Big Beautiful Bill Act: A School Business Manager's Guide to Overtime Deductions

In the last couple weeks, we have presented at both Labor Relations and SDASBO about the hot topics surrounding the One Big Beautiful Bill Act. We received countless questions regarding the new reporting for overtime compensation and promised a blog post. Here it is! 

Understanding Qualified Overtime Compensation

Under the new law, employees may deduct up to $12,500 of qualified overtime compensation annually ($25,000 for joint filers) starting with overtime earned on or after January 1, 2025. However, it's essential to note that this deduction applies only to the "premium" portion of overtime pay, the additional amount paid above an employee's regular hourly rate, typically the "half" in a "time-and-a-half" scenario. For instance, if an employee's standard hourly rate is $20 and they earn $30 during overtime hours, the $10 difference is considered qualified overtime compensation.

To qualify, the overtime must be:

• Required by the Fair Labor Standards Act (FLSA): Only overtime mandated under Section 7 of the FLSA is eligible.

• Reported on IRS Forms: Overtime pay must be reported on Form W-2

The IRS released information about the “no tax on overtime” here. It's important to remember that while the deduction reduces federal income tax liability, the overtime pay remains subject to payroll taxes such as Social Security and Medicare.

Reporting Requirements for Employers

For the 2025 tax year, the IRS has provided transition relief, allowing employers to use a reasonable method to approximate the amount of qualified overtime compensation for reporting purposes. While the 2025 W-2 form will remain unchanged, the 2026 form will be revised. Here is what the IRS published. For 2025, employers are required to report the overtime information on Form W-2 using code "TT" in Box 12.

Accounting Software

Now is the time to reach out to your accounting software provider to determine what updates will be in place for compliance. We know many but not all schools work with SUI.  According to SUI, they intend to provide a report schools can generate that will show the estimated amount for this year that schools can share with their employees. To note, the report would only be useful if the schools had a separate pay code defined and used for overtime this year. For 2026, schools will want to make sure they have a separate overtime pay code defined and used to pay overtime. This will allow accounting systems to calculate and report the correct amount on the W2s (in the designated box) for the applicable employees. When discussing this matter with SUI, they indicated they will review these details during their end of calendar year trainings this year.  If you don’t use SUI, we recommend contacting your payroll software provider or third-party administrator to discuss these reporting obligations for both 2025 and 2026.

If this all gives you a headache, feel free to 1) binge listen to Taylor Swift’s new album to take the edge off or 2) give us a call at 402-804-8000. 

Two-Minute Warning: Superintendent Evaluations Are Due Soon

The Huskers are 4-1, and if your living rooms are anything like ours, you’ve shouted a lot of “feedback” to the TV so far this season.  School boards should bring that same spirit—only more constructive—to superintendent evaluations this fall.

Most Nebraska superintendent contracts require evaluations in October, November, or December. Many even put the responsibility on the superintendent to remind the board and provide the evaluation instrument. 

Legal Framework

Nebraska law is clear: superintendents are “probationary certificated employees” regardless of how long they’ve served in a district (Neb. Rev. Stat. § 79-824). That designation carries important consequences. Under § 79-828, a superintendent must be evaluated twice during the first year of employment and at least once annually thereafter.

Accreditation rules add another layer. Rule 10 requires districts to have an approved board policy for evaluating certificated employees, including superintendents. You must also provide training to those who evaluate certificated employees.  The evaluation policy and training plan must be filed with and approved by the Nebraska Department of Education before it can be used

Switching Playbooks

Don’t love your current instrument? Considering installing a new scheme for the 25-26 school year?  There is still time to switch, regardless of what instrument you would prefer to use.  But before you can use a new instrument, your board must pass a motion and submit the required paperwork to NDE.  We can assist you with submission of those forms no matter what instrument you would like to implement.  Since KSB’s forms are already approved, NDE has assured us they will approve the KSB forms within 2–4 days, so there’s still time to update your evaluation system and use a new instrument.

Huddle Up: Building Healthy Board–Superintendent Communication

While the law mandates the evaluation process, the purpose goes beyond compliance. Evaluations are a structured opportunity for boards to provide meaningful feedback—both affirmations and concerns. Too often, board members hesitate to voice concerns because they doubt their qualifications to “judge” a superintendent. That silence can be catastrophic, leading to festering frustrations or reactive decision-making when issues come to a head.

Superintendents: resist the urge to be defensive. No matter how long you’ve been in the district, treat this process as a chance to invite genuine communication—good, bad, or ugly. A transparent and constructive evaluation builds trust, clarifies expectations, and reduces the risk of misunderstandings that can destabilize governance.

Key Takeaways for Boards

• Check your contract: Make sure you know when your superintendent must be evaluated this fall.

• Confirm your instrument: Contact NDE if you aren’t sure what form is on file.

• Don’t forget first-year superintendents: They must be evaluated twice—once now and once in the spring.

• Consider upgrading: The KSB platform offers a streamlined, NDE-approved evaluation system, with all the paperwork handled for you.

Wrapping Up

Think of this as the two-minute drill before halftime: get your evaluation scheduled, confirm your instrument, and don’t forget the spring follow-up if you’ve got a first-year superintendent.

Because unlike screaming at the TV, this feedback actually gets to the person who needs to hear it.

Don't get a challenge flag thrown on your evaluations: evaluate your administrators sooner rather than later!

During football season, if your living rooms are anything like ours, you’ve shouted a lot of “feedback” to the TV when your favorite team is playing.  School boards should bring that same spirit—only more constructive—to superintendent and business manager evaluations this fall.

Even though South Dakota doesn’t have state laws that require superintendent or business manager evaluations, many contracts do.  If your superintendent’s contract promises an evaluation, now’s the time to start thinking about how to make those evaluations more productive than a dropped pass on third and long.

Clear evaluations are also important legally to protect boards of education from claims of breach of contract or a board’s employment decisions  are arbitrary and capricious.  

Switching Playbooks

Don’t love your current instrument? Considering installing a new scheme for the 25-26 school year?  There is still time to switch, regardless of what instrument you would prefer to use.  If your board is looking for a smoother process, the KSB Evaluation Platform is ready to go for both superintendents and business managers.  It’s designed to take the stress out of evaluations and give both the board and superintendent/business manager a clear tool for feedback.

Huddle Up: Building Healthy Board–Superintendent Communication

Evaluations are a structured opportunity for boards to provide meaningful feedback—both affirmations and concerns. Too often, board members hesitate to voice concerns because they doubt their qualifications to “judge” a superintendent.  That silence can be catastrophic, leading to festering frustrations or reactive decision-making when issues come to a head.

Superintendents and Business Managers: resist the urge to be defensive. No matter how long you’ve been in the district, treat this process as a chance to invite genuine communication—good, bad, or ugly. A transparent and constructive evaluation builds trust, clarifies expectations, and reduces the risk of misunderstandings that can destabilize governance.

Key Takeaways for Boards

• Check your contracts: Make sure you know when your superintendent or business must be evaluated under their contracts.

• Confirm your instrument: Contact your administrative team if you aren’t sure what form you are supposed to use.

• Consider upgrading: The KSB platform offers a streamlined evaluation system with all the paperwork handled for you.

Wrapping Up

Think of this as the two-minute drill before halftime: get your evaluation scheduled and confirm your instrument.  Because unlike screaming at the TV, this feedback actually gets to the person who needs to hear it.

Speaking of football, mark your calendars: KSB is hosting a tailgate at the USD v. SDSU game on November 8 in Vermillion.  Please RSVP here.  We’d love to see you there—because good conversations don’t just happen in boardrooms, they happen over brats, beers, and a little friendly football rivalry.

Homework Assignment: Keep Your I-9s in Order

School business officials often grapple with a host of both state and federal law demands, but one that merits attention is I-9 compliance. Under the Immigration Reform and Control Act of 1986 (IRCA), every employer must verify the identity and work authorization of paid employees using Form I-9; districts must complete Section 1 (employee attestation) by the first day and Section 2 (document inspection) within three business days. Employers must retain I-9s for three years after hire or one year after termination, whichever is longer. If you rehire someone or their authorization expires, such as those employees with work visas, you may need to reverify via Supplement B. 

Why does this matter? The stakes of noncompliance are rising. Immigration and Customs Enforcement audits are becoming more frequent and aggressive, and many employers are hit not for intentional fraud but for missing data, improper corrections, or failure to reverify which can be costly. The “One Big Beautiful Bill” increases funding for ICE, including allocations for hiring new agents to conduct I-9 audits. 

To protect your district from audit risk, train all staff involved in hiring and onboarding and conduct internal audits of your school’s I-9 process. Always use the current edition of Form I-9, follow correct procedures for corrections (never erase or backdate, attach explanatory memos when needed), and store employee I-9s in a separate folder from personnel records. If you have any questions regarding I-9 compliance, please reach out to us at ksb@ksbschoollaw.com. 

What Nebraska Schools Need to Know About the Nebraska Healthy Families and Workplace Act

Many clients have reached out with questions on the Nebraska Healthy Families and Workplace Act (Neb. Rev. Stat. §§ 48-3801 to 48-3811).  Recently, the Department of Labor sent out information to Nebraska employers, including schools.  The law is going into effect soon, sparking many questions from schools about how the law applies to them.

The Act generally requires that “employers” provide certain paid “sick time” benefits to their employees. Specifically, Neb. Rev. Stat. § 48-3804(1) outlines the circumstances in which eligible employees must be granted this leave. Understandably, our school administrators want to know whether these requirements extend to schools. The good news is: they do not.

The Act defines which entities are considered “employers” for purposes of the law. Under Neb. Rev. Stat. § 48-3802(4)(b): “Employer does not include the United States or the State of Nebraska or its agencies, departments, or political subdivisions.” Since Nebraska public school districts are political subdivisions, public schools are not considered “employers” under the Act. That means schools are not subject to the law’s paid sick leave requirements.

What This Means for Districts

• No new mandates: School districts are not required to adjust their current leave policies to comply with this Act.  Nor are they required to hang any new posters or provide any notices to employees.

• Existing policies still control: Districts should continue to follow their negotiated agreements, board policies, and staff contracts and/or handbooks governing employee leave.

• Communication is key: Because this law has received considerable attention statewide, employees may have questions. School administrators may wish to proactively clarify that while the Act expands benefits to other employers in Nebraska, it does not change leave policies for school district employees.

If you have any additional questions on this new law, please reach out to us at ksb@ksbschoollaw.com or give us a call at 402-804-8000. 

Invisible Risks: When Substitutes and Coaches Miss Critical Training

Subs and coaches aren’t just on the sidelines—they’re often right in the middle of the action with students.  But too often, they slip past the professional development radar. Training season may feel like it’s behind us, but here’s the hard truth: it’s not.  Courts have made it clear—whether you’re a full-time teacher, a one-day sub, or a volunteer coach—the law expects you to know the rules and respond just like your regular staff.  When training falls short, the risks aren’t invisible at all—they’re waiting to become headlines.

Here’s the short list every administrator should double-check before handing anyone a whistle or a sub badge, no matter how long they’ve been with you:

• Students with Disabilities – Substitutes don’t just take attendance and hit “play” on a video anymore.  Legally, they are required to implement every aspect of every IEP and 504 plan for every student they encounter while subbing.  Even if they’ve only just met the student, the obligation is the same as a full-time teacher’s. Coaches, meanwhile, are often supervising students in unpredictable, less-structured settings—exactly where accommodations matter most.  Whether it’s equal access to play, providing behavioral supports, or managing medical needs, both subs and coaches must know their responsibilities and carry them out without exception.

• Confidentiality and Privacy – FERPA isn’t just for classroom teachers. Remember those IEPs, 504s, and medical plans?  Subs and coaches can only follow them if they’re actually given the information.  Sometimes administrators or general education teachers hesitate to share those details, worried about confidentiality.  But that flips the problem backwards.  The real solution is training: subs and coaches must get the confidential information they need and be trained to keep it private.  One careless comment on the sidelines or a misplaced document on a sub’s kitchen table is still a FERPA violation.

• Sexual Harassment and Non-Discrimination – Title IX doesn’t stop at the classroom door.  Practices, games, and trips all count.  Coaches, in particular, are often the first line of defense against harassment and the ones ensuring equal opportunities across the board.

So, what’s the play?  Our football predictions may invite debate, but compliance isn’t a pick ’em.  Don’t leave your subs and coaches guessing. Make sure they’re trained before they walk into a classroom or onto the field.  We’ve created quick, targeted online modules just for them—subs (Nebraska, South Dakota, Wyoming) and coaches (Nebraska and South Dakota).  To sign up or get cost details, email Shari at shari@ksbschoollaw.com.