Across Nebraska this week, board members will be sworn in to serve their school
districts and ESUs. Next week, Donald J. Trump will be sworn in to serve our
country. What does one have to do with the other? That’s why we’re writing
During President Obama’s administration, we saw some big legislative action.
However, a great deal of federal education and related policy was set by
administrative regulation and guidance. That means the incoming administration
could change directions fairly quickly. On the other hand, the Trump camp was
not very detailed about plans for federal education policy during the campaign and
we don’t know at this point what, exactly, a Trump administration plans to do.
This is precisely why, for several years now and across multiple looming federal
issues, KSB’s position has been simple: schools should sit back, wait for clarity,
and not make decisions on incomplete information when they are not required to
do so. For now, we think boards of education are smart to consider a “wait and
see” approach, with the understanding that educators should be on alert for
emerging information and ready to move quickly on a range of issues if necessary.
Some of the major issues we at KSB will be tracking after the inauguration include
Wellness and School Meal Regulations. The Department of Agriculture
released new regulations related to student wellness and the school lunch and
breakfast programs earlier this year. According to the Department of Agriculture,
“The final rule expands the requirements to strengthen policies and increase
transparency.” The regulations will require some changes to most school districts’
wellness policies and some changes to practices and public input relating to these
programs. Some schools have begun to make changes to their policies, which is
We want to emphasize, however, that the deadline is not until June 30, 2017.
Some entities have put out “sample” policies which, in our view, are incredibly
complex and much more onerous than necessary. Of course, your board is
entitled to use such a policy, but we want our policy subscribers to see their range
of options prior to potentially telling the booster club they can’t sell cookies
anymore. If your board wishes to consider a more complex policy, you would be
wise to do so now. You can review a more complex model wellness policy that
was “[t]horougly review by USDA Food and Nutrition Service” and updated to
reflect the USDA Final Rule here. Unlike the safety and security policy package we
rolled out earlier this year, we believe these wellness and food program changes
may land on the list of things the new administration will review early in the term.
As will be the case at the state and federal level, a lot will change and much more
will be known between now and June 30, which is precisely why we continue to
wait to roll out our draft changes to wellness and food program policies.
Fair Labor Standards Act. We’ve been writing about this one for a while. You
can follow along with the series of events relating to the regulatory changes of the
FLSA by looking through our past updates here, here, and here. Most recently,
and most importantly, the regulations increasing the minimum salary
requirements for exempt employees remain blocked by a federal court in Texas.
While an appeal is underway, there have been headlines nationally claiming that
the Trump administration will drop the lawsuit and potentially repeal the
regulations outright. That leaves schools who made changes to account for the
now-delayed increases with a decision: do you go back to the “status quo” or stick
with the changes? Because several clients used these changes as an opportunity
to address other FLSA issues, we do not believe there is a “right” or “wrong”
answer. Instead, from our view as long as your current setup is legal you can
afford to wait a few more weeks to see what the Trump administration will do.
Accommodations for Transgender Students. Last May, the Departments of
Education and Justice released a “Dear Colleague” letter which informed schools
that the Departments believe that schools are legally obligated to honor the
choices of transgender students on issues like restrooms, locker rooms, and
activity participation. The guidance is based on the Education Department's
interpretation of Title IX of the Education Amendments of 1972, which bars
discrimination based on sex in federally funded educational programs. The
Education and Justice Department stated that they “treat a student's gender
identity as the student's sex for purposes of Title IX and its implementing
regulations." The "Dear Colleague" letter concludes, "This means that a school
must not treat a transgender student differently from the way it treats other
students of the same gender identity."
On August 21, a Texas judge issued an injunction which prohibited the
administration from enforcing this transgender guidance nationwide. After that
order was issued, the United States Supreme Court agreed to hear a case related
to the restroom use of a transgender student from the Fourth Circuit, Gloucester
County School Board v. G.G. Earlier this week, the Department of Justice filed an
appeal in the Texas case asking the judge to lift the nationwide block of the
transgender guidance and defer instead to the Supreme Court in the G.G. case.
As we have been saying for a few years now, this issue is far from settled. Taking
strong policy stances on either side of these issues comes with risk and should
only be done knowing all of those risks.
Educational Benefit to Special Education Students. Today, the Supreme
Court heard oral argument in the Endrew F. case. This is the case asking the
Supreme Court to review the level of educational benefit required to provide a
“free appropriate public education” (aka “FAPE”) to students eligible for special
education services. Federal courts are split on this issue, with one side saying you
must only provide “some” benefit and the other saying you must provide
“meaningful” benefit. Nebraska is in the Eighth Circuit, which only requires
“some” benefit. This case will cement and reaffirm the current lower standard, or
it will increase the required level of benefit Nebraska schools must provide. If the
Court elects the higher standard, that probably means training for your staff, more
parental challenges, and increased costs. That makes this a big case which we’ll
be following closely.
Supreme Court Vacancy. Given Endrew F., G.G., and other important cases in
front of the Court this term, it is almost certain that one of the administration’s
first priorities will be to name a Supreme Court nominee to fill the seat of Justice
Antonin Scalia, who passed away last February. It is much less clear whether
Justice Scalia’s seat will be filled before oral argument is heard in the G.G. case,
and the Endrew F. case was heard with only 8 Justices today. The timing of these
oral arguments and the seating of a new Justice will impact one another.
Supreme Court rules permit re-argument in cases when a new Justice is sworn in
pending a decision from the Court.
Guidance on Seclusion and Restraint. On December 28, 2016, the Office for
Civil Rights, a division of the United States Department of Education, released a
Dear Colleague letter regarding the seclusion and restraint of students.
Specifically, OCR asserted that students with disabilities are inappropriately
subjected to seclusion and restraint more often than non-disabled students, and
the Department views this disparity as evidence of discrimination by schools
against disabled students. The letter included an extensive question-and- answer
section and a fact sheet that encourages parents to contact the Office for Civil
Rights to report concerns about the use of seclusion and restraint by schools.
The issue of seclusion and restraint is one that will continue to develop over time.
The data does clearly establish that students with disabilities are subjected to
seclusion and restraint more often than typically-developing students, although it
is far less clear that this disparity is the result of schools doing something wrong.
The Every Student Succeeds Act (“ESSA”—which replaces No Child Left Behind)
requires state departments of education to develop plans that include statewide
strategies to reduce bullying and harassment, restraint and seclusion, and
suspensions and expulsions. These plans were initially due to the federal
education department in March or July 2017, but on November 28 th , the
department released new regulations that pushed the submission dates to April or
September. Exactly what states will be required to submit could change under the
new administration and it is also possible that the deadline for these state plans
will be pushed back yet again.
For now, we think every educator should review the current seclusion and restraint
policy that has been adopted by their board of education, and they should comply
with that policy with fidelity. Everyone who works with students with disabilities
should be mindful that these students shouldn’t be restrained or secluded
inappropriately, and educational teams should work hard to craft behavior
intervention plans that provide students with positive behavioral supports. We do
not recommend making major changes to otherwise lawful seclusion and restraint
practices based on this last-minute Dear Colleague letter from the outgoing
administration, because the next administration could take a completely different
approach to this issue. We do think that educators should watch this issue closely.
In particular, we will be tracking the relevant elements of the plan the Nebraska
Department of Education is crafting for submission to the federal agency.
PPACA (aka, “Obamacare”). Finally, no news cycle will go by in the next
several weeks without discussion of Congress’s possible actions relating to
Obamacare. If you’ve followed this issue at all recently, you’ve heard it’s possible
for an “outright repeal,” “partial repeal,” “repeal and replace,” and most recently,
“repeal and delay”—where Congress would repeal the law with a delayed timeline
for the various requirements to be lifted while replacements are crafted. It’s also
possible the repeal will happen piecemeal over the next several weeks, months, or
The practical reality of this uncertainty is that we have no idea how long the
onerous requirements of the law will remain in place. Business officials must
continue preparing the required reporting documents while the law remains in
effect, for example. Even if you assume the law will be repealed, boards will face
difficult decisions. Many schools and ESUs have offered classified staff members
with access to health insurance or increased insurance benefits in the last year. If
the law is repealed, will boards eliminate that benefit? Will employees who have
purchased insurance on healthcare.gov now clamber for the school to offer
insurance for purchase? Will all of the other employers in local communities revert
to their prior benefit practices (which will affect school employees whose spouses’
insurance options change)? Not to sound too redundant, but all these unanswered
questions mean it’s a good time to be patient and wait to see what your
continuing obligations, if any, will be under federal health care law.
Conclusion. As we have consistently said with many of these requirements over
the past several years, it is best not to act prior to having all the information
needed to make the best decision possible for your school or ESU. We will track
all federal and state law actions diligently on behalf of our clients and educational
entities throughout the state. We will continue to provide these updates via social
media and through direct e-mails to any school, ESU, administrator, or board
member who would like to receive them. We also know other legal experts,
professional groups (like NCSA and NSBA) and publications (such as Education
Week), will be monitoring these changes. Opinions on certain issues,
requirements, and the urgency to act may vary, so your board should secure
information from sources you trust. Because we will provide our updates free of
charge to anyone interested in them (and will be posting them to our website
regularly), please just let us know if others in your school or ESU would like to
receive them directly via e-mail.
If you are a policy service subscriber, you will receive updated policies from KSB
as they are required along with explanations of the changes which will highlight
areas where your board must make decisions. If you are not a subscriber, you will
continue to receive these updates free of charge. If you do not wish to receive
these updates via e-mail, please reply to any of the e-mails you receive
transmitting the update, and we will be happy to remove you from the list. If you
have questions about these issues or others, we recommend that you consult with
your school district’s attorney or call Karen, Steve or Bobby. In the meantime,
keep those seatbelts buckled and watch things unfold!