ABA, Meet IEP

The request seemed modest at the time: could the family's ABA provider come in during the transition to kindergarten, just until the student settled?  The superintendent loved the idea of the school having specialized help for the student without having to pay for it.  Three years later, the provider is still there, staff plan around her schedule, and the student's day is built partly on her work.  On June 1, 2026, Nebraska Medicaid issued Provider Bulletin 26-06, and its changes took effect on July 1.  The bulletin doesn't undo that history, but it does change what the arrangement requires going forward.

Quick note: if you’re a superintendent, principal, or school board member and that introductory paragraph sounded like gibberish to you, maybe just forward this email to your special ed director.  Read on if you love the sound we nerds make when we speak special ed to each other. 

What the bulletin says

The bulletin makes two changes relevant to schools.  First, Medicaid treats ABA services delivered in a school setting as part of school-based services reimbursement under NAC Title 471, Chapter 25 and the Medicaid State Plan.  Independent ABA providers may not bill Medicaid directly for services delivered at a school.  If ABA happens in your building and Medicaid pays for it, the school owns the billing pathway, and the services must meet Medicaid's updated ABA service definitions, also effective July 1.

Second, for dates of service on and after July 1, individuals receiving DD waiver services may receive ABA assessments (HCPCS codes 97151 and 97152) regardless of age, and for waiver recipients only, providers may recommend and use those assessments for non-ABA purposes.

School plan requirement

Medicaid's service definitions have long required a school plan for ABA therapy in any educational setting, public or private: setting-specific target behaviors, behavior reduction goals focused on academic engagement, and a time-limited approach with a clear transition shifting instructional control to school staff.  What the updated definitions now make explicit is the piece that matters most to administrators: the Individualized Treatment, Rehabilitation, and Recovery Plan must include a separate school plan within the student's IEP for Medicaid reimbursement.  One piece of good news here: daycare and after-school settings remain exempt from these requirements.

FAPE runs through the IEP, not through Medicaid

Medicaid billing rules and IDEA obligations operate on separate tracks.  FAPE means the services the IEP team determines the student needs to make appropriate progress; Medicaid is a funding mechanism that neither adds to nor subtracts from what the IEP must contain.  When the bulletin says schools are "responsible" for ABA services in school settings, read that as a statement about billing responsibility.  It does not declare that every district must provide ABA or that ABA is a required related service for any particular student.

The harder question: you already let a private provider in

Many districts have permitted privately-retained or Medicaid-funded ABA providers to work with students on campus.  Does that access concede that ABA is necessary for FAPE? Generally, no… but possibly yes.  Access is not an admission, and allowing a parent-arranged provider into your building as a courtesy does not by itself establish that ABA is educationally necessary.  But candidly, untangling whether a student's progress stems from ABA services in the school setting or from the numerous other interventions your district uses can prove difficult.

Additionally, how you've handled that access can create exposure.  If the provider's services appear in the IEP, PWN, or meeting minutes, or if staff have built the student's daily programming around the provider, a parent can argue the district itself treated ABA as necessary, making the provider's removal look like a unilateral reduction in services.  It also means that if the family’s health insurance or Medicaid eligibility cease, they will have a good argument that the school now must pay, because you tacitly admitted that ABA was necessary for FAPE by allowing the provider into the building at all. 

Going forward, route any parent request for a parent-selected ABA provider through the IEP team, which decides whether ABA services are necessary for FAPE.  Even where the team determines they are, IDEA generally leaves personnel decisions to the district: the school chooses who delivers the services.  Expect parents to argue that since Medicaid recognizes only the school for school-based ABA billing, the school must now provide the services.  That conflates billing with entitlement, but it still must be addressed through the IEP process, with the team's reasoning documented.

The throughline in all of this: don't make the decision based on the service, make it based on the kid.  We can't forget the 'I' in IEP stands for individualized, and therefore the IEP team should consider the information.  These situations rarely announce themselves until they're already problems, so if something in this post feels familiar, reach us at ksb@ksbschoollaw.com.

ABA, Meet IEP

The request seemed modest at the time: could the family's ABA provider come in during the transition to kindergarten, just until the student settled? Three years later, the provider is still there, staff plan around her schedule, and the student's day is built partly on her work. The arrangement has quietly become load-bearing, and it is worth understanding what South Dakota Medicaid does — and does not — require of the school when private ABA happens in your building.

Quick note: if you’re a superintendent, principal or school board member and that introductory paragraph sounded like gibberish to you, maybe just forward this email to your special ed director.  Read on if you love the sound we nerds make when we speak special ed to each other. 

What South Dakota Medicaid actually says

ABA is not an eligible school-district service. Under the School District Services manual, the covered school-district services billable to Medicaid are limited to psychological, physical therapy, occupational therapy, speech therapy, audiology, and nursing services, each tied to a specific CPT code. ABA is not on that list, and school districts cannot bill Medicaid for it. When an agency operating a special education program provides a Medicaid-covered service that is not an eligible school-district service — the manual names ABA specifically — that agency may only enroll as a group of professionals and bill for the non-school-district services. So if ABA happens in your building and Medicaid pays for it, the billing pathway belongs to the outside provider, not the district.

FAPE runs through the IEP, not through Medicaid

Medicaid billing rules and IDEA obligations operate on separate tracks. FAPE means the services the IEP team determines the student needs to make appropriate progress; Medicaid is a funding mechanism that neither adds to nor subtracts from what the IEP must contain. The fact that South Dakota lets an outside ABA provider bill for services delivered in school says nothing about whether ABA is a required related service for any particular student. It does not declare that every district must provide ABA, and it does not make the provider's presence an IEP-team decision by default.

The harder question: you already let a private provider in

Many districts have permitted privately retained or Medicaid-funded ABA providers to work with students on campus — and South Dakota's rules make that permission allowable because the outside provider can bill directly without the school in the loop. Does that access concede that ABA is necessary for FAPE? Generally, no… but possibly yes. Access is not an admission, and allowing a parent-arranged provider into your building as a courtesy does not by itself establish that ABA is educationally necessary. But candidly, untangling whether a student's progress stems from ABA services in the school setting or from the numerous other interventions your district uses can prove difficult.

Additionally, how you've handled that access can create exposure. If the provider's services appear in the IEP, PWN, or meeting minutes, or if staff have built the student's daily programming around the provider, a parent can plausibly argue the district itself treated ABA as necessary for FAPE. That the provider bills Medicaid or the parent’s private insurance independently does not insulate you here — the risk lives in how the district treats the service, not in who cuts the check.  You also run the risk that if the family’s health insurance or Medicaid eligibility cease, they will have a good argument that the school now must pay, because they will argue that you tacitly admitted that ABA was necessary for FAPE by allowing the provider into the building at all. 

Going forward, route any parent request for a parent-selected ABA provider through the IEP team, which decides whether ABA services are necessary for FAPE. Even where the team determines they are, IDEA generally leaves personnel decisions to the district: the school chooses who delivers the services. Note the wrinkle South Dakota adds — because Medicaid recognizes the outside ABA provider, not the school, as the billing entity for school-based ABA, a district that concludes ABA is necessary for FAPE cannot assume Medicaid will fund the district's own delivery of it. That is a reason to think carefully at the IEP table, and to document the team's reasoning either way.

The throughline in all of this: don't make the decision based on the service, make it based on the kid.  We can't forget the 'I' in IEP stands for individualized, and therefore the IEP team should consider the information.  These situations rarely announce themselves until they're already problems, so if something in this post feels familiar, reach us at ksb@ksbschoollaw.com.

ABA, Meet IEP

The request seemed modest at the time: could the family's ABA provider come in during the transition to kindergarten, just until the student settled? Three years later, the provider is still there, staff plans around her schedule, and the student's day is built partly on her work. The arrangement has quietly become load-bearing, and it is worth understanding what Wyoming Medicaid does — and does not — require of the school when private ABA happens in your building.

Quick note: if you’re a superintendent, principal, or school board member and that introductory paragraph sounded like gibberish to you, maybe just forward this email to your special ed director.  Read on if you love the sound we nerds make when we speak special ed to each other. 

What Wyoming Medicaid actually says

ABA is an eligible school-based service. Under the School-Based Services Program manual, the covered school-based services billable to Medicaid are limited to psychology and counseling, physical therapy, occupational therapy, speech-language and hearing, and nursing and health services, each tied to specific CPT and HCPCS codes. ABA falls within psychology and counseling services.  The manual addresses ABA directly and limits it to students under 21 with an autism spectrum disorder diagnosis, delivered or supervised by a licensed behavior analyst, and written into the student’s IEP or IFSP.  The district itself enrolls as the billing provider, and each rendering practitioner enrolls separately. So if ABA happens in your building, the billing pathway can belong to the district.  Because the manual publishes no ABA-specific code, confirm the correct code with the Department of Health before you bill.

FAPE runs through the IEP, not through Medicaid

Medicaid billing rules and IDEA obligations operate on separate tracks. FAPE means the services the IEP team determines the student needs to make appropriate progress. Medicaid is a funding mechanism that neither adds to nor subtracts from what the IEP must contain. The fact that Wyoming lets a district bill for ABA delivered in school says nothing about whether ABA is a required related service for any particular student. It does not declare that every district must provide ABA, and it does not make the provider's presence an IEP-team decision by default.

The harder question: you already let a private provider in

Many districts have permitted privately retained or Medicaid-funded ABA providers to work with students on campus — and Wyoming permits that too, because Wyoming Medicaid also covers ABA outside the school program, so the provider can bill directly without the school in the loop. Does that access concede that ABA is necessary for FAPE? Generally, no… but possibly yes. Access is not an admission, and allowing a parent-arranged provider into your building as a courtesy does not by itself establish that ABA is educationally necessary. But candidly, untangling whether a student's progress stems from ABA services in the school setting or from the numerous other interventions your district uses can prove difficult.

Additionally, how you've handled that access can create exposure. If the provider's services appear in the IEP, PWN, or meeting minutes, or if staff has built the student's daily programming around the provider, a parent can plausibly argue the district itself treated ABA as necessary for FAPE. That the provider bills Medicaid or the parent’s private insurance independently does not insulate you here — the risk lives in how the district treats the service, not in who cuts the check.  You also run the risk that if the family’s health insurance or Medicaid eligibility cease, they will have a good argument that the school now must pay, because they will argue that you tacitly admitted that ABA was necessary for FAPE by allowing the provider into the building at all. 

Going forward, route any parent request for a parent-selected ABA provider through the IEP team, which decides whether ABA services are necessary for FAPE. Even where the team determines they are, IDEA generally leaves personnel decisions to the district: the school chooses who delivers the services. Note the wrinkle Wyoming adds.  Because Wyoming Medicaid recognizes the district, not just the outside provider, as a billing entity for school-based ABA, a district that concludes ABA is necessary for FAPE may be able to bill Medicaid for its own delivery of it.  Reimbursement does not make the service necessary, but it removes one practical objection. That is a reason to think carefully at the IEP table, and to document the team's reasoning either way.

The throughline in all of this: don't make the decision based on the service, make it based on the kid.  We can't forget the 'I' in IEP stands for individualized, and therefore the IEP team should consider the information.  These situations rarely announce themselves until they're already problems, so if something in this post feels familiar, reach us at ksb@ksbschoollaw.com.

Why Your District Needs a Digital Citizenship Assembly This Year

If you were with us at last week's joint SASD/ASBSD conference, you sat through our "Pain in the App" session, the one where we covered the state of technology in schools, South Dakota law, and deepfakes. Judging by how many of you cornered us afterward, the questions didn't stop when the slides did. The most common one? "How do we actually get this in front of our students?" Our answer: a digital citizenship assembly. Here's why it belongs on your calendar this year.

The research is not comforting. 

Start with what we walked through at the joint conference. Simply owning a cell phone correlates with worse reading comprehension at the elementary level, and it doesn't matter whether the child brings the phone to school or leaves it at home. Studies keep showing that having a phone merely in sight can measurably tank working memory and fluid intelligence. We are seeing state legislators regularly evaluate school law and the state of technology. The pendulum is swinging, and students are the ones caught in the middle of it.

An assembly won't fix a student's home screen-time habits overnight, but it puts the "why" in front of students directly, in their own language.

What a good assembly actually delivers:

The goal isn't to scare students off their phones. It's to help them build healthier habits with technology and understand that their online conduct follows them for life. A strong digital citizenship assembly gives students:

• A clear, memorable picture of how online behavior connects to real South Dakota law and real school authority

• The vocabulary to recognize bullying, harassment, and deepfake harm when they see it, and the confidence to report it

• A straight answer to the question they're all quietly asking: "Can I actually get in trouble for this?"

Let's get one on your calendar.

If you want us to bring a digital citizenship assembly to your students, that's exactly the kind of work we love. Reach out to ksb@ksbschoollaw.com for more information, scheduling, and pricing.

The Steamboat Has Sailed: What Wyoming's ESA Ruling Means for Your District

The Steamboat has left the dock, and it’s sailing straight for your front office.  On May 14, the Wyoming Supreme Court unanimously lifted the injunction that had frozen the Steamboat Legacy Scholarship Act, Wyoming’s school voucher program, for nearly a year (Degenfelder v. WEA, 2026 WY 54).  Applications reopened this month.  In May of 2025, when the Act first became effective, roughly 4,000 families signed up for the program, which provides $7,000 per student for an education savings account to families who withdraw their students from public school.  Income-qualified families — at or below 250% of the federal poverty level, roughly $80,000 for a family of four — can also draw ESA funds for pre-K costs, so if your district runs a pre-K program, this affects you too.

 Here’s the catch: the Court didn’t rule the Act constitutional — it just said that the program could be active while the rest of the case is litigated.  The real fight over whether the Act violates the Wyoming Constitution is still playing out in Laramie County District Court, where intervenors filed a motion for judgment on the pleadings on June 23.  But the justices seemed to telegraph that the court will ultimately rule that the Act does not violate Wyoming’s state constitution. 

Translation: this case could wrap up fast, or drag on through a lengthy appeal.

Either way, the money is moving now, and the fallout for enrollment, staffing, and program planning lands this fall, well before anyone gets a final answer on the constitutional question.

Five things to do now

1. Track withdrawals in real time.  Parents have 15 days after the state approves their ESA contract to notify your district in writing.  Make sure front-office and enrollment staff know a formal withdrawal letter is coming — WDE guidance treats the family’s acceptance email from the Wyoming ESA program as sufficient notice.

2. Decide now whether you’ll sell services to ESA families.  Districts may sell individual classes, activities, and programs to ESA students, but only under a formal parent contract, and you can’t count these students for ADM funding, award credit, or put anything on a transcript.  ESA funds cover far more than tuition; they cover tutoring, AP exam fees, uniforms, even homeschool internet costs.  Expect requests that go beyond a basic class list. If you’re considering it, loop in your school district’s legal counsel before you draft or sign anything.

3. Brief your special education team today.  There are two critical issues your special ed team needs to know about ESA enrollment:

   For students who are already identified as special ed students, your team will have to issue prior written notice confirming their withdrawal from school. You will also need to consider what equitable services you will owe these students when they are not enrolled. 

   For students who are not identified as special ed, you will still owe child find obligations.  It is very likely that your district will receive evaluation requests from families who have no intention of ever enrolling.

4. Standardize your records-request process.  FERPA lets you transfer a complete record to a qualified school that enrolls a former student.  Build one clean, repeatable process now, before the requests start piling up.

5. Budget for both outcomes.  The district court could still strike the Act down, and the WDE has signaled it won’t claw back funds already properly disbursed.  The safest thing to do is to run your enrollment and revenue projections twice, once assuming the program survives, once assuming it doesn’t.

Questions? Reach out to us at ksb@ksbschoollaw.com.

THANK YOU! That’s the most important part.

[From Coady Pruett, to KSB's awesome clients and the education community]

I write with tremendous gratitude to share with you that on September 18, my tenure as a KSB School Law attorney will come to an end.  I have accepted another professional opportunity outside of the school law context.  I am very enthusiastic about this new opportunity and looking forward to contributing and adding value to another business.  I will have more to share about my new role in the future via a separate channel.

If I have been your so-called “go to guy,” never fear!  The KSB team has a plan to cover everything.  I have already reached out to the clients with whom I am working on active litigation matters.  Also, if I am working on a specific matter for you, I will either finish it before I wrap up my time at KSB or we will reach out to you directly to let you know who is taking the baton and running with it.  All of us are committed to ensuring as smooth a transition as possible so that you, our clients, remain well served and well advised.

What I want to emphasize here is how grateful I am for my time at KSB School Law and for the opportunity that so many people provided to enable me to serve and represent public school districts.  To the school boards and school administrators, thank you for the trust and confidence that you placed in me by allowing me to provide you counsel, advice, and the opportunity to advocate for you.  To my KSB colleagues, thank you for your comradery, your support, your humor, your intellect, your willingness to grow together, and for putting me in a position to be successful.  KSB School Law has been and remains a mission-driven organization, striving to ultimately help children by empowering school leaders to make the best decisions possible, with limited resources, in imperfect circumstances.  I appreciate having had the chance during the last eight years to contribute toward that cause.

So, I will end with where I started—with gratitude and appreciation for my experience with school leaders and my KSB colleagues.  Until I see you next, be well!  —Coady

Building Your 26-27 In-Service Schedule: An Odyssey Worth Taking

This summer, while half the country is sitting in an IMAX theater watching Matt Damon lash himself to a mast and outwit a cyclops in Christopher Nolan's The Odyssey, you're back at your desk figuring out how to train and prepare (and maybe even entertain) your staff for the year ahead. The temptation is to do what schools have always done: squeeze an entire year's worth of professional development into two or three days in August. 

The problem is that educators have developed a pretty cynical view of both in-person and on-demand training. Too often, "online professional development" means the same generic compliance videos from an insurance carrier, assigned every August, followed by a quiz that half the staff can find on Quizlet before the video even finishes playing. In-person training means administrators squeeze in one more PowerPoint on one more compliance topic and hope everyone stays awake.

Neither of these is really high quality professional learning. It's checking a box.

Instead of treating August as the one opportunity to train your staff, imagine using those precious in-service days for the things that only happen well in person—building culture, discussing difficult issues, collaborating with colleagues, and asking questions. Then, throughout the school year, deliver short, engaging training modules exactly when people need them. Suddenly your August schedule isn't carrying the weight of an entire year's worth of compliance and legal training.

A well-designed in-service isn't about how much information you can cram into a few days. It's about launching a year-long learning strategy. And that strategy may be one of the least expensive, most effective investments you can make in keeping your district out of a courtroom.

The Cautionary Tale: What Happens When You Leave the Room

In Jimenez v. Roseville City School District, a teacher let a group of middle schoolers use his classroom before school to practice break dancing for a talent show. Reasonable enough. Who doesn’t break dance? The trouble started with what he didn't do. He never told his principal or vice principal he'd opened the room. He had no real training in the activity he was supervising. He regularly stepped out to make copies, use the restroom, or take a call, leaving the students on their own because, in his words, it "didn't seem necessary" to do otherwise. While he was out of the room, a 14-year-old was seriously injured. Here, the Court of Appeals ruled that a jury could find the district increased the risk of injury by failing to communicate and train its teachers on staff supervision, protocol, and classroom use. The Court reasoned the teacher's assumption that he didn't need to notify administration or supervise the students at all times, "arguably reflect[ed] a failure of proper training of teachers by the school authorities."

Why This Voyage Matters

The lesson of Jimenez is simple: districts that train their staff stand on far firmer legal ground than those that don't. Even if schools aren’t responsible for guaranteeing perfection--some bad things may still happen--the fact of training helps demonstrate something was a true accident rather than a failure on the school’s part. The good news is that this is the easy part to fix, and we can help. KSB offers on-demand, prerecorded training modules on dozens of topics (including a 35 minute 26-27 back-to-school inservice available starting this Friday), ready whenever your schedule is. Prefer something live? A KSB attorney will happily journey (a la the Odyssey) to your building for an in-person in-service or join by Zoom. You can see the full suite of training options here. Pick the training your staff needs most and get it on the calendar, or email us at ksb@ksbschoollaw.com to check pricing and book a KSB attorney.

KSB's 2026-27 Rookie and Refresher Series – Now Open for Registration!

Summer is winding down and the school supply displays are already looking picked-over.  It must be Administrators' Days week!  Tuesday will be a long day of…networking…or travel, and Wednesday and Thursday will be a blur of learning and more networking.

What’s crazy about this year is by the time you return from Admin Days and get your bearings straight, next Monday will be August 3. 

That means it's time to open registration for KSB's 2026-27 Rookie and Refresher Series — one of our most popular offerings, back again with three live strands built around what's actually happening in your building each month. Whether you're brand new to the job or just want a monthly gut-check on the legal issues heading your way, these sessions are short, practical, and built to be used in real time.

What's Being Offered This Year

We're running three strands for 2026-27:

Superintendents and Business Managers – Monthly sessions running from hiring and negotiations to contracts, FMLA/ADA, public records, and the FLSA quirks that never seem to go away.

Principals – A year-long walk through the calendar, from initial must-dos through evaluations, discipline, enrollment, and personnel decisions with hard deadlines attached.

Special Education Leaders – This year's series follows three contentious meetings — a chronically absent student's annual review, a disputed eligibility determination, and a manifestation determination review — each broken into before, during, and after.

Each strand runs monthly from September through June, live for 40-50 minutes, with registration covering the live webinar (or access via a recording on our portal) plus slides and materials.

Click below for full session descriptions, dates, and topics for each series:

• Superintendents and Business Managers

• Principals

• Special Educators

Ready to Register?

Click here to register for the strand (or strands) that fit your role.  Registration is per school (or individual ESU), not per registrant, so one sign-up covers your whole team.   All webinar fees will appear on your district's or ESU's regular monthly bill.

Questions? Reach out to us at ksb@ksbschoollaw.com.

Stay tuned for information on our Quarterly Webinar Series — details coming soon.

FERPA, the IDEA, and Truancy: A Win for Wyoming School Districts

Good legal news for school districts doesn't come around every day — so when it does, it's worth celebrating.  A recent Wyoming district court decision hands districts two wins at once: (1) FERPA and the IDEA don't stand in the way of the state's attendance laws, and (2) districts unhappy with a special education state complaint decision have a real path to appeal it.

Here's how we got there.  The Wyoming Department of Education found a district in violation of the IDEA for sharing education records — including special education records — with the local prosecuting attorney before that attorney filed a truancy petition.  Instead of accepting the finding, the district pushed back and sought judicial review.  The district won.

A Quick Refresher on FERPA and the IDEA

FERPA's default rule is simple: no disclosing education records without prior written parental consent, unless an exception applies.  The IDEA layers on extra confidentiality protections for special education information, but it doesn't invent its own separate rulebook, it borrows FERPA's.  So wherever FERPA permits a disclosure, the IDEA rides along and permits it too. The juvenile justice exception turns out to fit attendance enforcement almost perfectly.

Wyoming's Truancy Rules in Brief

Wyoming law requires school attendance and puts designated attendance officers in charge of enforcing it.  When an officer determines a child is habitually truant or willfully absent, the officer has to notify the board of trustees and the district attorney (or, where there's no DA, the county attorney).  That attorney can then start proceedings "in the interest of the child" under the Child Protection Act or the Children In Need of Supervision Act. Wyoming's framework treats truancy squarely as a juvenile justice issue, including willful absenteeism.

What the Court Found

On appeal, the court held that FERPA's juvenile justice exception lets districts disclose education records to the district or county attorney handling a truancy referral.  The exception is about who can receive the records, not which records qualify — so it doesn't carve out special education records, and it doesn't limit districts to a one-line notice.

The Catch: This Isn’t A Blanket Pass

Before you get too excited: the court didn't say share everything with anyone.  A habitual-truancy finding doesn't turn a student's entire file into fair game. The exception is purpose-limited.  A district may share records because they relate to the truancy referral and the juvenile system's ability to help the student, not just because the records happen to exist.

A district that treats a truancy declaration as open-ended authorization has stepped outside what this decision actually supports.  The safest way forward is to document the purpose behind every production.  For example, any record you share can be labeled: "Truancy/Juvenile Justice System Matter."  That paper trail is what keeps a disclosure defensible.

The Bigger “Bonus” Win: Districts Can Appeal State Complaint Decisions

This case only reached a courtroom because the school district involved refused to treat WDE's decision as final.  The Department found the district out of compliance and ordered corrective action; the district filed for judicial review instead.  That allowed the court a forum to reverse WDE's decision as contrary to law and arbitrary and capricious.

Wyoming educators have long assumed a state complaint decision is the end of the road.  This case established that it isn't.  If a school district believes WDE has made a legal mistake, it is clear now that the district can seek judicial review.   

The Bottom Line

• Share Truancy Records with Confidence. Districts can give truancy-related education records — special ed records included — to the prosecuting attorney on a referral, as long as the disclosure serves the juvenile justice purpose and the district documents that purpose.

• Losing doesn't mean losing. An unfavorable state complaint decision is a starting point, not the final. When the law and facts are on the district's side, the courthouse door is still open.

Questions? Reach out any time at ksb@ksbschoollaw.com

Cooperative Purchasing and the AG's Opinion: You Can't Always Get What You Want

The Rolling Stones warned us decades ago that You Can't Always Get What You Want. (For the hideously uninformed the Gen Z and millennials crowd, the Rolling Stones is an iconic band made up of Keith Richards and Mick Jagger, with great music such as I Can’t Get No) Satisfaction, Jumpin’ Jack Flash and a new album that Karen Haase thinks is really good)   In Official Opinion No. 26-03, AG Marty Jackley did his best Jagger impersonation, telling school districts that they can’t always get what they want - if what they want is to use a cooperative purchasing agreement as a shortcut around procurement laws related to public improvements. 

AG Jackley’s opinion reported that some school districts in South Dakota have entered into contracts with out-of-state sports construction firms to build facilities on public school properties without soliciting competitive bids and proposals and following the other steps South Dakota state law requires for public construction.  The cooperative purchasing companies hold themselves out as complying because South Dakota permits school districts to enter into agreements to participate in cooperative purchasing contracts.  However, not all spending and procurement is governed the same way. Cooperative purchasing under SDCL 5-18A-37 lets a purchasing agency join with other agencies for "the purchase of supplies or contractual services." The fight is whether that same statute stretches to cover the construction of a public improvement — a new building, a gym, an athletic complex. Under South Dakota law, a “public improvement” is “the process of building, altering, repairing, improving, or demolishing any public infrastructure facility, including any utility infrastructure, structure, building, or other improvements of any kind to real property, the cost of which is payable from taxes or other funds under the control of the purchasing agency, and includes any local improvement for which a special assessment is to be levied.” (Super broad!) 

So what does a district do instead? Any public improvement of $100,000 or more must be advertised and bid unless a specific statute authorizes another route (SDCL 5-18A-14), with competitive sealed bidding as the default (SDCL 5-18A-4, -5). Districts may also determine that competitive sealed bidding is not practicable or advantageous for a project; it can procure by competitive sealed proposals instead (SDCL 5-18A-6, -7), awarding not to the lowest price but to the responsible offeror whose proposal is most advantageous on the evaluation factors the district states up front in its RFP. Meaning the school board can develop a rubric that weighs qualifications, experience, schedule, and price together. Schools may also have to satisfy the conditions of design-build (SDCL 5-18B-20) and construction-manager-at-risk (SDCL 5-18B-39 to -44) when pursuing these delivery methods.  

Ok, you may be wondering “what should I do now?” 

1. Don't panic about finished projects. If the building's up, a court won’t make you tear it down. (But a court  may halt something that is half-built!) 

2. Take a hard look at anything in progress. If you have an active construction project running through a cooperative, call your school attorney now.

3. Do your own homework. If you're leaning toward the design-build path, your district, not the cooperative's website, has to establish and publish the required procedures and document why design-build serves the public interest. Also, these companies may not be as familiar with South Dakota’s requirements, so it’s crucial that you look into the processes yourself with your school attorney. 

4. Mind the preferences. Resident-bidder and South Dakota supplier preferences don't disappear just because you used a cooperative. The cooperative's process may not build those in automatically.

5. Call your lawyer before you sign. Every one of these situations turns on the specific facts and the specific contract. LONG before you’re discussing contract terms for ANY project, make sure you’ve discussed it with your lawyer. The stakes are too high! 

The Rolling Stones classic sums this whole topic up best: “You can’t always get what you want.  But if you try sometimes, you just might find, you get what you need.”  And if what you need is to complete a construction project that is lawful, KSB can help. 

Let's Talk Construction — August 7

Good news: you don't have to sort this out alone. We're presenting on construction-related legal issues at the ASBSD/SASD joint conference on August 7. We'll be digging into the broader landscape schools have to navigate on any building project, the bidding and procurement rules, required hearings and notices, the finance side, and the traps that turn a straightforward project into a headache. If your district is building, planning to build, or just trying not to end up as the subject of the next AG opinion, this is the session for you.

Questions? Reach out at ksb@ksbschoollaw.com or 402-804-8000 — and we'll see you on August 7.

The Feds Just Made Title IX Training a Bigger Deal. Ours Is Now Live On-Demand.

On July 10, the Department of Education launched a new national initiative aimed at protecting K-12 students from sexual misconduct by adults in schools, backed by a Dear Colleague Letter reminding every district of its obligations under Title IX related to staff and professional boundaries.  It doesn't create new law.  It does signal that the feds are watching how districts actually execute the process they already have — and that makes this year's Title IX training more than a box to check.

Our on-demand Title IX training for 2026-27 went live July 15.  Here's why each piece of it matters more than you might think.

New administrators (required): "I already did Title IX training at my last district" doesn't cover you here.  The regulations require training on the scope of your district's education program and your district's policy — not a generic overview of Title IX.  A new administrator - even if you’re coming from a district that has an identical policy on paper - has to be trained again on school-specific response processes, coordinators, and the like.  Different job title, same rule: you need current training on your district's Title IX policy, in both the "skinny" and "full" versions, before you're the one fielding a report.  Run time for “full” districts is a little over three hours; run time for “skinny” districts is about 40 minutes. 

Returning administrators in Districts with the full Title IX Policy: (required):  First the bad news: The 2020 regulations require that all members of the Title IX team be trained on “current law and regulation.”  The FBI's crime reporting definitions that your Title IX policy incorporates were updated, which will shift how conduct gets classified under your policy.   And you also need to review the substance of the July 10 Dear Colleague letter.  Now the good news: our training for returning administrators in a full policy district only runs for around 30 minutes.  

Returning administrators in Districts with the “skinny” Title IX Policy: (recommended, not required — but read this before you skip it): Even if your  Board elected to adopt KSB’s "skinny" version of a Title IX policy, the policy doesn’t train itself and it is not self-executing.  The Department's July 10 Dear Colleague Letter is a reminder that having a compliant policy on paper and having a team that can run it correctly under pressure are two different things. 

All staff (required for new staff, recommended for everyone, and we mean everyone): Here's the piece administrators sometimes underweigh: a report of sexual harassment to any employee of a K-12 school creates actual knowledge for the district.  That means a volunteer coach, a cafeteria worker, a paraprofessional, or the president of your school board can each individually trigger your district's legal duty to respond, whether or not they know what to do with what they just heard.  Failing to report Title IX-covered misconduct is one of the biggest legal exposures a school can carry, and that exposure doesn't discriminate by job title or tenure.  Every person on your payroll — and some who aren't — can put your district on the clock.

Prefer a live person in the room? We'll run all of this at your back-to-school inservice.  Dates are booking fast — email Shari at shari@ksbschoollaw.com to grab one before they're gone.

CLICK HERE TO REGISTER FOR ON-DEMAND TRAINING

Before the Monitors Arrive: Auditing Your Use of EAs, Permits, and Long-Term Substitutes

School districts across the country face the same math problem every fall: more special education vacancies than fully certified applicants.  State licensing boards respond with provisional pathways (exception authorizations, permits, long-term substitute assignments) that keep an adult in the classroom while a candidate works toward full certification.  These pathways solve a hiring problem.  In light of recent findings from the Wyoming Department of Education, coupled with a new school year on the horizon, now is the time for districts to review how they supervise and support provisionally licensed staff.

In a recent special monitoring report WDE took issue with one Wyoming District's use of exception authorization ("EA") holders and long-term substitutes serving in special education capacities.  WDE stated the "practice of assigning unlicensed teachers to resource rooms and program rooms must cease."  The IDEA establishes minimum personnel qualifications for individuals providing special education and related services.  34 C.F.R. § 300.156.  Under that regulation, special education teachers must hold full state certification without waiver on an emergency, temporary, or provisional basis.  A provisional credential authorizes someone to work toward licensure, not to stand in for it.

WDE grounded its position in PTSB's October 2023 Director's Memo, which requires that an EA applicant "shall be supervised by a fully licensed educator" and that "the district accepts responsibility for ensuring the applicant completes all requirements and becomes eligible for full licensure."  Significantly, WDE interprets this supervision requirement to reach any educator without full state certification, including long-term substitutes and permit holders, not just EA holders.

WDE announced that it considers direct supervision adequate only when the fully credentialed teacher (1) prepares the lessons and plans the instructional activities the unlicensed staff member carries out, (2) evaluates the progress and achievement of the students the unlicensed staff member serves, and (3) works in close and frequent proximity to the unlicensed staff member.

If WDE's position sounds different from the guidance you understood from PTSB, now is the time to evaluate your practices.  A few practical steps go a long way:

1. Keep a simple supervision log.  A brief weekly record of who planned the lessons, who reviewed student progress, and when the licensed supervisor worked in the classroom shows the district meets all three elements.

2. Pair every provisional staff member with a licensed educator in the same building.  A quick review of assignments before the year starts catches any arrangement that relies on cross-building or once-a-week supervision.

3. Keep progress reporting with licensed staff.  Provisional staff can collect the data; the licensed teacher interprets it and signs the IEP progress reports.

4. Build shared planning time into the schedule.  A common planning period lets the licensed teacher prepare what the provisional staff member will deliver, and the plans themselves become the documentation.

5. Keep an eye on the licensure pathway.  Establishing a regular system to check-in on each provisional educator's coursework and testing progress honors the district's commitment when it accepted the authorization.

While we don't yet know how far WDE will take its directive that assigning "unlicensed" staff to resource rooms and program rooms must cease, districts should prepare to review their practices now.  We will keep you posted as things develop and share any new guidance that comes out.  In the meantime, if you have questions, reach out to us at ksb@ksbschoollaw.com.

ARE YOU READY TO RUMBLE?? Ultimate EDGAR Academy Is Coming!

For the past two years, the US Department of Education has been led by a former WWE executive.  We're not touching that one — but we will say this: when the person at the top knows how to work a crowd and run a high-stakes operation, you probably want your compliance house in order before anyone starts paying attention to you.

And they are paying attention.  Federal education spending is under scrutiny like never before, and the cost of getting grant compliance wrong — unallowable expenses, procurement missteps, missed obligation deadlines — has gone from "uncomfortable audit finding" to "very bad news very fast."

At KSB, we know when to call in a tag team partner.  Federal grant compliance is one of those areas where the rules run deep enough that we regularly bring in specialists ourselves — and we have a great one.

KSB School Law and the Nebraska Department of Education, Office of Special Education have joined forces to bring the EDGAR Academy to Nebraska on Wednesday, October 14, 2026 — and you don't have to be a KSB client to attend.  (You're welcome, everyone.)

You'll spend the day with Tiffany Kesslar of The Bruman Group, who has worked with schools and state education agencies across the country and has a rare gift: she makes the boring interesting, the complex understandable, and the theoretical actionable.  The Bruman Group has been a go-to name in federal education law and grants management for over 45 years, and Tiffany is the real deal.

Training runs 9:00 AM to 3:00 PM at the Nebraska Department of Education's building in Lincoln.  At $610 per person, attendees walk away with a thorough grounding in EDGAR and Uniform Guidance principles, cost allowability, procurement and inventory processes, and obligation timelines — plus coverage of the regulatory updates that took effect July 1, 2025, and proposed changes released May 29, 2026.  Oh, and a copy of the Administrator's Handbook on EDGAR.  (It's a page-turner.  Sort of.)

Nobody's getting hit with a folding chair — but by 3:00 PM, your head will be full of the kind of federal grant knowledge that actually keeps auditors at bay.

This one is especially well-timed for business managers and federal program staff in Nebraska, South Dakota, Wyoming, and Kansas.  For registration and more information, visit the following link.  In the meantime, if you have questions, you know where to reach us: ksb@ksbschoollaw.com.

Before the Monitors Arrive: Auditing Your Use of EAs, Permits, and Long-Term Substitutes

School districts across the country face the same math problem every fall: more special education vacancies than fully certified applicants.  State licensing boards respond with provisional pathways (exception authorizations, permits, long-term substitute assignments) that keep an adult in the classroom while a candidate works toward full certification.  These pathways solve a hiring problem.  In light of recent findings from special monitoring, coupled with a new school year on the horizon, now is the time for districts to review how they supervise and support provisionally licensed staff.

In a recent special monitoring report, the Wyoming Department of Education (“WDE”) took issue with a Wyoming District's use of exception authorization ("EA") holders and long-term substitutes serving in special education capacities.  WDE stated the "practice of assigning unlicensed teachers to resource rooms and program rooms must cease."  The IDEA establishes minimum personnel qualifications for individuals providing special education and related services.  34 C.F.R. § 300.156.  Under that regulation, special education teachers must hold full state certification without waiver on an emergency, temporary, or provisional basis.  A provisional credential authorizes someone to work toward licensure, not to stand in for it.

WDE grounded its position in PTSB's October 2023 Director's Memo, which requires that an EA applicant "shall be supervised by a fully licensed educator" and that "the district accepts responsibility for ensuring the applicant completes all requirements and becomes eligible for full licensure."  Significantly, WDE interprets this supervision requirement to reach any educator without full state certification, including long-term substitutes and permit holders, not just EA holders.

WDE considers direct supervision adequate only when the fully credentialed teacher (1) prepares the lessons and plans the instructional activities the unlicensed staff member carries out, (2) evaluates the progress and achievement of the students the unlicensed staff member serves, and (3) works in close and frequent proximity to the unlicensed staff member.

If WDE's position sounds different from the guidance you understood from PTSB, now is the time to evaluate your practices.  A few practical steps go a long way:

1. Keep a simple supervision log.  A brief weekly record of who planned the lessons, who reviewed student progress, and when the licensed supervisor worked in the classroom shows the district meets all three elements.

2. Pair every provisional staff member with a licensed educator in the same building.  A quick review of assignments before the year starts catches any arrangement that relies on cross-building or once-a-week supervision.

3. Keep progress reporting with licensed staff.  Provisional staff can collect the data; the licensed teacher interprets it and signs the IEP progress reports.

4. Build shared planning time into the schedule.  A common planning period lets the licensed teacher prepare what the provisional staff member will deliver, and the plans themselves become the documentation.

5. Keep an eye on the licensure pathway.  Establishing a regular system to check-in on each provisional educator's coursework and testing progress honors the district's commitment when it accepted the authorization.

While we don't yet know how far WDE will take its directive that assigning "unlicensed" staff to resource rooms and program rooms must cease, districts should prepare to review their practices now.  We will keep you posted as things develop and share any new guidance that comes out.  In the meantime, if you have questions, reach out to us at ksb@ksbschoollaw.com.

Sweatin' the Statutes: Your South Dakota July To-Do List

July in South Dakota means three things: county fairs, road construction, and — for school administrators — the legal equivalent of New Year's Day. The fiscal year flipped over on July 1, roughly 200 freshly minted laws just took effect (don’t worry - not all 200 apply to schools), and your board's annual meeting is barreling toward you.

Here at KSB, we take the "new fiscal year" thing personally, because before Sara Rogers joined us she spent five years as the business manager in Avon, South Dakota, living every July deadline on this list (including all the "other duties as assigned" that somehow always seem to land  on the business manager's desk.) So when we say we feel your pain, we have receipts. (Fun bit of KSB trivia: Jordan Johnson, our resident Avon native and 6'3" connoisseur of fruity umbrella drinks, grew up in that same town — though he and Sara luckily missed each other at the school, which is the only reason certain grocery-store photos of young Jordan remain the stuff of legend.) 

So what should you put on your July list?

1. Hold Your Annual Meeting 

SDCL 13-8-10 sets your board's annual meeting for the second Monday of July, that's July 13 this year, unless your board picked a different date at its last regular meeting. This is the meeting where your board "reorganizes," which sounds dramatic but mostly means voting on the same agenda items year after year. Speaking of which...

2. Swear In Your New Board Members

Under SDCL 13-8-14 and 13-8-15, newly elected or appointed members take and sign an oath promising to support the U.S. and South Dakota Constitutions and faithfully do the job. A few practical notes:

• One oath per person per term. No annual re-swearing required.

• File board members' oaths with the business manager. The business manager's own oath goes to the county auditor. (We doubt very few do this!)

• Don't forget the business manager's bond.

3. Elect a President and Vice President

SDCL 13-8-10 requires your board to elect a president and vice president from its own membership at the annual meeting, and those officers serve until the next annual meeting. Two tips from the trenches:

• Run the election the way your policy says to run it. Check your board policy before the meeting, not while everyone stares at you mid-vote. (For KSB Policy Subscribers, that is Policy 2002.)

• Plan for a tie. South Dakota law offers no tiebreaker for officer elections. If your policy is silent too, your options get awkward fast. Check your policy regarding this.

4. Name Your Depository and Custodian of Funds

Also at the annual meeting, your board designates the bank (or banks) that will hold district funds under SDCL 13-8-10 and 13-16-15, plus the custodian of all accounts — usually your business manager, who already carries the district's finances around in their head anyway. Before you rubber-stamp last year's bank, take two minutes to confirm your deposits are properly collateralized. The Department of Legislative Audit publishes pledged-collateral information, and "we just always used that bank" is not a defense.

While your board is talking about banks, don't forget this piece: if your district invests idle or excess funds, your board needs a resolution authorizing it. State law lets school districts invest surplus funds (SDCL 4-5-6), but the authority to actually do the investing runs through the board. Most districts handle this at the annual meeting by adopting a resolution empowering the business manager to invest and reinvest temporary excess funds, consistent with SDCL chapter 4-5 and the district's investment policy. 

5. Designate Your Legal Newspaper

Your board must annually name the official newspaper that will publish your notices and minutes (SDCL 13-8-10 again — this statute really carries the whole meeting). Pick a legal newspaper that actually qualifies as one, and remember that your minutes have a publication deadline under SDCL 13-8-35. Your board's hot takes deserve timely print circulation.

One easy-to-miss formatting rule while you're thinking about publications: under SDCL 17-2-28, every legal notice, set of minutes, or bid your district publishes must carry an inscription stating the approximate cost of publication and noting that the notice can be viewed for free on the statewide public notice website maintained under SDCL 17-2-1. In practice that means language along the lines of:

Published on _______ and , 2026, in the _____________ at an approximate cost of $_ per publication. This notice may be viewed free of charge on the statewide public notice website maintained pursuant to SDCL § 17-2-1.

6. Set Your Regular Meeting Schedule

Regular meetings default to the second Monday of each month unless your board designates otherwise at the annual meeting. If Monday nights conflict with harvest, ballgames, or your superintendent's bowling league, July is your clean shot to move them. While you're at it, remember the open-meetings basics: post that agenda at least 24 hours ahead (SDCL 1-25-1.1). 

7. Conduct Your Annual Open Meetings Review — On the Record

Here's the newer kid on the July agenda. SDCL 1-25-13 requires every public body that posts meeting notices under SDCL 1-25-1.1 — and yes, that means your school board — to annually review the state's open meetings laws during an official meeting, using the Attorney General's published explanation of those laws. The AG's guide, Conducting the Public's Business in Public, lives on the SD AG’s website. 

Pro move: have your superintendent, business manager, or (ahem) school attorney actually walk the board through the guide, with special attention to executive session grounds under SDCL 1-25-2.

8. Let the President Appoint Committees

Once you've elected officers, the new board president under SDCL 13-8-26. 

9. Get Serious About the Budget

The fiscal year has already started, so your budget timeline is officially "now." Under SDCL 13-11-2, your board must publish the proposed budget with notice of the budget hearing not later than July fifteenth.  

10. The Miscellaneous Items 

• ASBSD membership. If your board belongs to the association, July is when dues typically come around (SDCL 13-8-10.1).

• Designate legal counsel. Not required by statute, but naming your law firm(s) at the July meeting keeps everyone clear on who to call before things get interesting. There's no limit on how many firms you can name. Here is an agenda item and sample motion.

The Takeaway

July is a busy month. Do not hesitate to reach out with any questions at ksb@ksbschoollaw.com or 402-804-8000. 

Gender Identity and Sports: Some (Legal) Finality?

One of the most hot button issues in education law got a lot of clarity last week.  And in a surprise twist, this will not make extra work for your school.   On June 30, the U.S. Supreme Court decided two cases: West Virginia v. B.P.J. and Little v. Hecox, two cases in which transgender girls sued challenging state laws that barred them from participating on sports teams designated for female athletes.  

So, can states pass laws explicitly limiting participation in women’s sports to biological females?  

Short answer: yes, even if a student takes puberty blockers or receives hormone treatments.  States with these laws on the books (27, including NE, SD, and WY) are permitted to keep them in place.  No policy changes needed.

The Court ruled that neither Title IX nor the Equal Protection Clause requires states to make exceptions for participation of transgender student-athletes.  The rationale was fairly basic.  Title IX has always permitted sex-segregated sports, and “sex” means biological sex, because that’s what it meant in 1972 when Title IX passed.  The Equal Protection clause permits states to create sex-based classifications when they are “substantially related” to an “important” governmental objective (or in nerdy lawyer speak, “intermediate scrutiny”).  According to the Court, the WV and ID laws cleared that hurdle--as would similar laws in other states.

The Court was also clear that the ruling doesn’t impact other related questions.  It doesn’t impact rules in most states that permit biological females to participate on male teams.  States can permit transgender participation, or at least the decision doesn’t prohibit it.  The Court did not make any decision about bathrooms and locker rooms.  This isn’t the end of gender-based litigation, but it does answer one long-running question.  If you have any questions, let us know: ksb@ksbschoollaw.com

P.S. Speaking of Title IX — training season for 26-27 is here. On-demand training goes live July 15:

• New administrators (required): Training on your district's Title IX policy, covering both "skinny" and "full" versions.

• Returning administrators: for "full" policy adopters, this quick refresher on Title IX developments is required; for "skinny" policy adopters, it is recommended but not required.

• All staff (required only for new staff but KSB recommended for everyone): Training on your district's policy and reporting duties, also live July 15. Failing to report Title IX-covered misconduct is one of the biggest legal exposures schools have, so we recommend this for all staff every year.

• Prefer in-person? We can run all of this at a back-to-school inservice — but dates are booking fast, so grab one now. Please email Shari (shari@ksbschoollaw.com).

For additional information and to register for training, CLICK HERE.

P.P.S. Do you know an attorney with a few years of experience who would be a great fit for KSB, even without specialized education law knowledge?  Let that person know that we’re hiring!  

ACLU Summer Records Request: A Timeless Tradition

You may have read our recent blog post about board retreats.  Several times since our founding, the ACLU of Nebraska has sent out a statewide records request right around KSB’s summer retreat.  At least we weren’t boarding a plane in 2026. 

In its latest request, the ACLU seeks copies of policies and other documents related to situations where your dress code discusses “Tribal Regalia, Natural and Protective Hairstyles, and Headdresses and Religious Attire.”  These are all terms from 79-2,159, Nebraska’s dress code law that was amended last summer.  

Let’s start by talking about timing.  

Public bodies have 4 business days to respond to a records request, excluding the day of receipt and non-business days (weekends and days where the district office is closed).  If you received the request July 1 and are closed July 3, that means responses would be due July 8 if your district offices are otherwise open. So, deep breath. Your 4th of July plans don’t have to be put on hold.

Breaking Down the Requests 

First of all, the ACLU is asking for the dress code policy your board adopted to comply with 79-2,159.  That makes sense to most of our clients.  For some districts, the only responsive document may be your policy. 

The ACLU’s second and third requests have some administrators scratching their heads.  When you cut through all the lawyerly wording in the request, the ACLU wants copies of any documentation you have related to times when you had to apply these specific provisions of your dress code policy either during school or at graduation.  Many Nebraska schools will not have any responsive documents to this request.  On the other hand, maybe you had situations where a student requested certain attire or adornments for graduation or during the school year.  In that case, you will have to look back at documentation that exists, if any.  Keep in mind FERPA and other confidentiality laws may apply, so if, for example, you sought KSB’s legal advice about a specific student situation, you should withhold that information and state the legal reasons in the response.  The ACLU appropriately recognizes this and notes that they are not seeking information about “an individual’s records or personal information.”  If your district falls into this category, it’s worth a call to your school lawyer to discuss your documentation, confidentiality obligations, and the response you will send.  If you do have documents related to a specific student’s discipline history or dress code accommodation request, be sure to reach out to your school’s attorney before responding to the ACLU.  

The ACLU’s last request seeks documentation of any training you provided to District staff about these portions of your policy.  There is no requirement in the statute that you train all staff on this policy.  However, you likely did receive some training as administrators and may have discussed the new policy requirements with staff at the beginning of last year. For example, here are slides from KSB’s presentations around the time the dress code law changed:  

NRCSA 2025

Admin Days 2025

If you attended these or any other training and have copies of those slides or materials, you should include those in the response. We know most school admins had some type of training, even if informal during policy and handbook update time. That doesn’t necessarily mean you have “records” of those. But disclose them if you do.  That could also include a simple slide you used at inservice time for your staff.

Responding to the Request

If you are a KSB Policy Service subscriber, you will at least disclose policy 5031.  For the remaining requests, that’ll vary by school depending upon if you had any circumstances arise where you applied the policy to requested items, and whether you did any training or attended any conferences or other training that discussed the changes to the dress code laws.

As always, if you have any other questions, you can reach out to any of us or to all of us at ksb@ksbschoollaw.com.

Why Your School Board Needs a Retreat (And What to Actually Do There)

We just got back from our KSB summer retreat, and honestly? We're fired up. Every year we do this twice, once in the winter, once in the summer.  And every year it reminds us why we started this firm in the first place.

We know what you might be thinking: a whole-office retreat, twice a year? Yes. Whole office. Every single person. Not just the attorneys while the administrative staff holds down the fort back home. Everyone. Because continuous improvement isn't a department at KSB, it's baked into who we are. Law firms that leave people behind for retreats, or skip them entirely to protect billable hours, are missing the point. You can't build a great team in pieces.

Here's how ours work: the winter retreat is our end-of-year after-action report. We pull the numbers, look hard at what worked and what didn't, and set the table for the year ahead.  We plan for the fiscal year ahead. The summer retreat is our check-in — are we on track? What's changed? What do our clients need that we haven't figured out yet?  We plan for the school year ahead.  In this way, we’re a lot like boards and administrators who orient themselves in January and plan for the school year during the summer. 

And here's the thing our retreats keep reminding us: growth isn't just about adding clients. It's about going deeper, not just wider.

For us, that means constantly asking what we can do for the schools we serve — before they even know they need it. Policy services. Webinars. Superintendent and building administrator evaluations. In-person workshops.  The goal isn't to be a firm that schools call when something goes wrong (and hope it’s bad enough to make a living). It's to be a firm that helps schools build the kind of governance and policy infrastructure that keeps things from going wrong in the first place. The retreat is where we hold ourselves accountable to that vision.  Some conversations are difficult.  Some are celebrations.  They’re all necessary. 

Okay, But What About Your Board's Retreat?

All of this got us thinking about school board retreats — because the same tension exists there.

A board retreat can feel like a massive investment. You're pulling elected officials and administrators out of their regular lives, possibly paying for a facilitator. And if you're not careful, you walk out with nothing but a very long to-do list, a vague sense of optimism, and a blurry “vision” that fades by October.

So what makes a board retreat actually worth it?

The goal is a strategic plan everyone actually believes in. This sounds obvious, but it's the most common place things go sideways. A strategic plan that lives in a binder on a shelf isn't a strategic plan, it's a document. A real strategic plan is one that every board member and every administrator can speak to, in their own words, without looking it up. If you can't get there, the retreat is actually a great place to build that shared language. What are we here to do? What does success look like in three years? What would have to be true for us to get there? Those questions, asked together, are worth more than any consultant's slide deck.  They all precede the written artifact, but that is where the magic happens.

Don't let the retreat become a complaint session. Every board has things that aren't working. A retreat is a good time to name them, but only if you're also naming the path forward. Facilitated well, a retreat surfaces the right issues and builds consensus around solutions. Facilitated poorly, it's a day of venting with a nice lunch.

Build in some reflection, not just planning. What did we do well this year? Where did we fall short, and why? Boards that skip the retrospective part and go straight to goals tend to repeat the same mistakes in fancier language.

Don't Leave Without Scheduling the Board Self-Evaluation

Here's something that often gets agreed to at a retreat and then quietly slips off the calendar: the board self-evaluation.

At this point in the year, most boards are wrapping up their fiscal year and heading into a new one. The retreat is a natural moment to commit — out loud, with a date on the calendar — to evaluating how the board is functioning as a governance body. Are we staying in our lane — policy and oversight — and letting the superintendent lead? Are we unified in public even when we disagree in the boardroom? Are we making decisions based on data, or based on whoever was loudest at the last community meeting?

Board self-evaluation doesn't have to be painful. Done right, it's actually energizing — because most board members want to be effective. They just don't always have a structured way to talk about it. The retreat is the right moment to agree that you'll create that structure, pick a date in the fall, and assign someone to own it.

Whether you use a formal instrument or a facilitated conversation, the questions are the same: What are we doing well? What do we want to do better? And how will we hold ourselves accountable?

The retreat plants the flag. The self-evaluation, done a few months later, tells you whether you are on track.  It’s also a place to make sure fundamental governance responsibilities that aren’t listed on the strategic plan continue to improve or at least hold steady.  Because a well-done plan can’t include everything.  Maybe your board has always done a great job being present at school events.  Did that continue even though your primary strategic initiatives are to increase staff retention and improve student attendance?

At KSB, we'll be back in the room together in the winter to answer those same questions for ourselves. We think that's what it takes to keep getting better — and we think your board is worth the same investment. 

We can even check and see if Bobby’s mom can make it to give your team haircuts. 

*Schedule a demo of the evaluation platform at https://www.ksbschoollaw.com/evaluation-platform or email ksb@ksbschoollaw.com.*

The Feds Just Reshuffled Special Ed, Civil Rights, and FERPA Oversight: Here is What it Means for You

Your students’ special ed rights are now overseen by a health agency.  Their complaints about privacy and civil rights now go directly to the Department of Justice.  If this gives you pause, good.  It should.  On June 16 the US Department of Education signed four interagency agreements that moved OSERS to HHS and OCR plus the Student Privacy Office to DOJ.  The administration has telegraphed that this was coming since 2025, but warned and ready aren’t the same thing.  There's a lot of noise out there, so here's a clear-eyed picture of what's actually happening and what it means for your district.

The Agreements

ED signed four agreements: HHS absorbs special education and rehabilitative services (OSERS); DOJ takes on civil rights enforcement (OCR), student privacy protection (FERPA), and school desegregation advisory services.  ED retains statutory authority and final decision-making under all four.  Secretary Linda McMahon issued a letter the same day reassuring schools and families that IDEA’s education framework remains intact and “that OSERS and OCR will maintain their independent statutory functions without interruption.”  That's the promise.  Implementation is the question. 

Civil Rights Enforcement Gets Sharper, Maybe

DOJ likely brings a stronger enforcement posture than OCR's traditional complaint-resolution model, and this shift shouldn't come as a surprise.  A complaint moving through a DOJ-assisted investigation may simply feel different from one handled entirely within OCR's traditional framework.  That's not cause for alarm, but it is a reason to take incoming complaints seriously and loop in counsel early, which is a good practice regardless.  This shift didn't come without warning.  Over the past year, headlines have focused primarily on OCR's significant staff reductions, so shifting its functions to an agency with stronger enforcement muscle is a logical next step to achieve the administration's desire to shrink the Department of Education.  The administration launched a joint Title IX Special Investigations Team in 2025 combining OCR and DOJ staff to build enforcement-ready cases from day one.  DOJ recently announced investigations into dozens of districts in California, Illinois, and Michigan over curriculum content and parental opt-out rights, a sign of the enforcement posture districts should expect going forward.  Even if this move comes as no surprise, only time will tell how or whether districts feel its impact.  Traditionally, the DOJ has more muscle but fewer complaint processors.  How they staff this switch to handle thousands of potential complaints is worth monitoring.

On a practical note, if your district is currently in the middle of an OCR investigation, it will not reset.  Stay engaged, meet every deadline and make sure your documentation clearly explains your district's decisions.  If DOJ plays a more active role, the process may feel more formal and legalistic, which is all the more reason to involve your school lawyers in the process early or to get them involved now if you haven’t.

FERPA Oversight Expands

The student privacy agreement gets less press than the civil rights move, but it touches every district directly.  DOJ now reviews FERPA complaints and investigates how districts handle student records, parental access to curriculum, and survey opt-outs.  This administration has prioritized parental rights since Executive Order 14190 (January 2025), and Secretary McMahon signaled intent to clear the FERPA complaint backlog in March 2025.  Districts won't feel this shift immediately, but it does signal that diligent FERPA training and compliance remain essential.

One open question worth watching: the agreement doesn’t make entirely clear who will be responsible for sending student privacy letters going forward.  Unclear lines of authority have a way of meaning things fall through the cracks.  Student Privacy Office complaint investigations have never been speedy and it feels likely that this problem will be exacerbated, at least in the short term. 

Special Education Moves to HHS

This is the move that has generated the most concern and that concern isn’t unreasonable.  OSERS, IDEA and OCR are all pieces of the same special educational puzzle.  Splitting them across HHS and DOJ raises real questions about coordination and institutional knowledge going forward.  

Advocacy groups have raised concerns about the OSERS-to-HHS move, arguing that HHS operates through a health and medical services framework, raising real questions about whether special education oversight belongs in an agency whose default orientation is clinical rather than educational.  Secretary McMahon’s June 16 letter addressed this directly, stating that “IDEA ensures that a child’s disability isn’t viewed as a medical condition that needs to be treated.”  That’s the right legal framing, but the question is whether that holds in practice.  Under the partnership, HHS takes over day-to-day administrative functions, including grant administration, compliance monitoring, data collection, and fund drawdowns, while OSERS retains policy leadership, statutory authority, and technical assistance to states.  FY2026 grants continue through ED's G5 system; future awards will move to HHS's GrantSolutions platform.  At best, this will be a learning curve for a new system; at worst, grant management may become even more complex.  More info on an upcoming training opportunity below.

Bottom Line

Your obligations under IDEA, Section 504, Title II, Title VI, and Title IX have not changed. Students retain their rights, and federal oversight continues, just under a new organizational structure.  The questions around implementation are real and worth watching, but we’re tracking the details closely.  We’ll keep you updated as guidance develops.  Stay focused on compliance, document what you’re doing and loop in legal when you have questions arise.  As always, you can reach us at ksb@ksbschoollaw.com.

One More Thing While We Have You

All of this federal grant reshuffling comes at a moment when grant compliance  (boring things like EDGAR, Uniform Guidance, procurement, obligation deadlines) is under more scrutiny than it's been in years.  The cost of getting it wrong has gone from "uncomfortable audit finding” to “very bad news very fast.”  We have something coming in October that’s directly relevant and we think you’ll be glad we got it on the books when we did.  More details to come soon…..  

You're Running One of the Most Important Institutions in America. Almost Nobody Knows.

Karen got a call last spring from a board member who had spent several days fielding phone calls about a special education student who had been cursing in front of his second-grade peers.  What kind of out-of-control operation are you running over there? - the outraged parents kept demanding.  “They acted like I personally decided to let this kid start swearing,” the board member told Karen.  “I’m a farmer.  I finish cattle.  I’m on the board because I care about the school my kids go to.  They just don’t understand the special ed laws you keep telling us about.”  He was not wrong on any count.

A new study from the Annenberg Institute surveyed more than 8,600 Americans about their knowledge of school boards, and it turns out this school board member’s neighbors are not alone.

Thirty-two percent of respondents couldn’t say whether their local school board members are elected or appointed.  Nearly half had no idea when their board elections are held.  The public’s best guess for voter turnout in school board races was 28 percent.  The actual number is closer to 12 percent.

Meanwhile, 95 percent of those same respondents said school safety was at least somewhat important to them.  Eighty-four percent said the same about school cafeteria food (the quality of which is, sadly, largely dictated by the federal Healthy, Hunger-Free Kids Act of 2010.)  School board election timing came in at 49 percent.

Your community trusts you with the thing they care about most.  They just don’t know who you are, how you got there, or when they had a chance to weigh in.

This Is Not a New Problem.  But Now There’s Data.

School boards collectively oversee nearly $1 trillion in annual spending — comparable to federal Medicare and defense spending.  Board members set attendance zones, negotiate union contracts, approve curriculum, manage multi-million dollar budgets, and make real-time calls about student safety.  They do most of it in near-total obscurity, in communities where local media coverage is thin and voter turnout is thinner.

Here is what board members and superintendents already know and rarely get credit for: the decisions that generate the most public heat are frequently not your decisions at all.  Transgender student policies.  Special education placement requirements.  Teacher tenure protections.  Curriculum mandates.  The federal government writes the rule, or the state passes the law, and your board implements it.  Then you field the calls, the emails, and the two-hour public comment period from a community that has no idea the choice was never yours to make.  (See: our farmer friend above.)

The study’s authors note that public awareness of school board governance is especially low in communities without robust local media — which describes most of Nebraska, South Dakota, and Wyoming precisely. The accountability mechanisms that are supposed to connect boards to their communities are running at a fraction of capacity.  That is not a failure of your board.  It’s a structural reality of governing in rural America.

What the Study Gets Right About Teachers, Too

Here’s a finding that runs against the conventional wisdom: teachers support moving school board elections to the same day as national elections at a rate of 72 percent.  That is higher than the general public’s 55 percent.  The assumption has always been that teachers and their unions benefit from low-turnout off-cycle elections.  Turns out teachers, like most people, just want a more representative process.  This is worth knowing the next time someone tells you your staff is working against the community.

In fact, you should consider sharing the study's findings with your entire board at your next meeting.  The data provides a useful point for a conversation about governance and public accountability.

A Quick Aside

We’ve built a board self-evaluation platform designed for exactly the environment this study describes — one where external accountability is unreliable and boards need a structured internal process to hold themselves to a standard.  If your board is planning a summer retreat or looking for ways to grow as a board, it’s worth a look. Details at ksbschoollaw.com/evaluation-platform or email ksb@ksbschoollaw.com.

Before You Go: Its Policy Season!

Speaking of things the government requires that the public will eventually blame you for — our annual policy webinar walks you through every state and federal update your board policies need to reflect before next school year.  Nebraska subscribers, that’s tomorrow (Tuesday, June 2).  South Dakota subscribers, yours is June 16.  If you’re not subscribed to our policy service, you can find more detail about the service at www.ksbschoollaw.com/policy-service-.