Fasten Your Seatbelts! It’s Going to be a Bumpy Ride, But We’ll Give You A Front Row Seat....

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

the following:

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

perfectly acceptable.

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

even years.

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 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!