Your Title IX Training Plan: the Tortured Administrators’ Department

You know from our blog last week that the Biden administration has released its long-awaited Title IX regulations, updating the law that prohibits sex discrimination in schools.   These regulations were set by the feds to go into effect on August 1, 2024.  

The first of what could be many legal challenges to the regulations has already been filed in court. We all should keep an eye on how those lawsuits progress, but there are many reasons to continue moving forward with your plans to implement the new regulations even with these lawsuits pending. We’ll unpack the status of the litigation and the details of these regulations at our Title IX Webinar on June 25.  

But we know you’re already thinking about the most serious headache for school administrators: how do we train everyone before August 1? The new regulations require that all school employees, including board members and volunteers, be trained annually on their obligations to identify, report, and respond to allegations of sex discrimination.  Additionally all members of your school’s Title IX team will require updated training on the new regulations (and annual training moving forward).

KSB’s In Person Title IX Training 

All Staff Training 

One of the KSB lawyers will be delighted to come to your school this fall to conduct a basic "all employee" training for 60-90 minutes, which we will customize for each school. We can do just the required Title IX training or add in other staff inservice topics, depending upon the length of time.

Title IX Team Training

We would also love to come train your Title IX Team in person.  This training would include anyone who will be involved in responding to Title IX allegations.  Once trained they will be able to serve on any role of the Title IX Team (Title IX Coordinator, Investigator/Decision-Maker/Informal Resolution Officer/Appellate Decision-Maker.   Last time around, many school districts got together with other area administrators and got trained as a group.  We have pricing that will encourage that collaboration.   We will also have discounted pricing available for ESUs who want to offer this training to their member school districts in person.  This training will be available on a first come, first serve basis.

KSB’s Video On-Demand Title IX Resources 

On-Demand All Staff Training 

KSB will bring your staff up to speed so they can perform their duties to the best of their ability and with fidelity to the law.  Our portal offers a simple training video that you can have each employee, board member, and volunteer watch on demand.  Our system will also allow the district administrator to obtain a report to track who has watched the video.  Each employee will also receive a certificate of completion, which then can be transferred to future employers as well.  This system will also allow new hires during the 2024-25 school year to receive the same training that their peers received at the beginning of the school year. 

Title IX Team Training

We are designing similar on-demand training for your Title IX Team.  Anyone who will be involved in responding to Title IX allegations can participate in this training and will then be able to serve on any role of the Title IX Team.   Again, each administrator will receive a certificate of completion, the district will be able to obtain a report to see the progress of each person assigned to take the training.  

These on-demand training videos will be available to view beginning July 15th.  We will provide the individual in your district responsible for tracking training a link with instructions on how to obtain the records.

Ain’t No Sunshine…When It’s March: LB 43, OMA and Public Records

Here we were, patiently waiting for flowers to bloom and tee sheets to open.  Now we’ve got snow, cold, and dispositive Unicameral activity in late March.  We didn’t sign up for this.

Last week with the passage of LB 43 (another smash-6-into-1 bill), the Unicameral made changes to Nebraska’s two “sunshine” laws on open meetings and public records. Here’s the TLDR: while you’ll hear a lot about LB 43 in the coming months and during policy update time, it’s unlikely anything in LB 43 will change your policies or practices…yet.

Beginning in July, the Open Meetings Act will require each public body to “allow members of the public an opportunity to speak at each meeting.”  There may be some exceptions that school lawyers figure out for narrow special meetings, such as for things like personnel hearings and student discipline appeals, but you should plan on allowing for public comment as a matter of course at the vast majority of your meetings.

The public records law changes are a mixed bag.  The good news for schools is that beginning in July, you will be able to charge for all hours (including the first 4) for employees “searching, identifying, physically redacting, copying, or reviewing” records responsive to requests made by individuals who are not residents of Nebraska or by entities (like SmartProcure).  Schools will also be able to charge these requestors for attorney time needed to “review the requested public records.”  This is a big deal when those statewide requests come in from entities outside of Nebraska with incredibly broad scopes.

However, that’s a tradeoff for the changes made when the request is from a “resident” of Nebraska.  Once the changes are effective in July, schools will not be allowed to charge any fee for searching, identifying, redacting, or copying until after the first 8 hours of employee time.  Nor can you charge a fee for an attorney “or any other person” to review the request seeking a legal basis to withhold records.  How this will square with a fairly new Nebraska Supreme Court case on the issue of time spent “reviewing” records is unclear.  More on that soon during policy update time for KSB policy subscribers.

LB 43 contains a few other important items of note for schools and ESUs.  It establishes the “First Freedom Act,” which protects religious expression and exercise with particular protections for wearing tribal regalia on school grounds and at school functions.  It also adds an exception to disclosure of public records containing cybersecurity measures of the state and political subdivisions, along with a couple other new laws we’ll hit on at a later date.

For now, don’t believe everything you’ve read about LB 43, unless you read it here or in Justin Knight’s (of the Perry Firm) nice summary from last Friday.  Administrators, you should touch base with your board members or forward this like it’s hot, just in case they’ve only seen the (incorrect) summaries of LB 43 in the media, which are saying that all these changes are effective immediately.  If you have any other questions about LB 43 or the existential despair set on by our 4th winter in Nebraska this year, reach out to us at ksb@ksbschoollaw.com.

We’re Back! ACLU of Nebraska Record Request Follow-Up

On January 25, we blogged about the record request from ACLU of Nebraska that many schools received.  We’re not yet sure if it was sent to every school in Nebraska.  If you didn’t receive the request from the ACLU, please exit the blog post and enjoy the rest of your day!  If you did receive the request, read on…

The ACLU listed 11 separate requests, mostly pertaining to SRO programs and use of seclusion and restraint.  If you received the request, first you should consider whether or not you actually have an “SRO” assigned to your school or any specific school building.  

In order to have an “SRO” as defined by Nebraska law, the officer must be assigned specifically to your school as the officer’s “primary duty.”  While that’s not defined, we think the best starting point is to consider if a local officer is assigned to be in your school at all.  Do they have regular hours they spend in the school?  Or do they just drop in from time-to-time (even regularly) while on their normal patrol duties?  If they are assigned to your school or a specific school building and spend the majority of their duty time working with you in the school, you probably have an SRO.  Most situations should be pretty clear, but if not, contact your school attorney to decide.

Please note that even if you don’t have an SRO and you did receive the request, not all of the 11 items requested are tied to having an SRO.  For example, request #9 asks for “[a]ny and all documents reflecting current policies and practices with respect to the restraint and seclusion of students.”  Responding to the limited requests that don’t include an SRO is still something you’ll have to do.

Instead of the usual 4 business days, the ACLU has given schools until February 20, 2024 to respond.  You’ve got time, but there’s no time like the present to form a plan for your response.

As we promised in our last post, we’ve put together some guidance for our clients to help them respond, specifically focused on walking you through the SRO law, restraint and seclusion legal obligations, and which documents are possibly responsive.  We plan to charge a set small fee for the guidance memo and a template of the letter you can use to respond to the ACLU.  This flat rate helps to spread the cost for responding around across schools and also maintains attorney-client privilege for your response.  You will have to consider legal implications and our advice for your school specifically, and by sending it to you individually, the ACLU doesn’t get a chance to see our advice to you.  If you are a KSB policy subscriber and/or have used our model MOU for your SRO program (if you have one), we can point you to most of the items you’ll need to send, including specific policies.  Even if you aren’t a subscriber, we’re happy to share our guidance with you.  We have also reached out to Justin Knight at the Perry Law Firm to discuss the ACLU request.  Both law firms agree on how to respond, and if you are a Perry Client, we’re certain Justin or another Perry attorney will be happy to assist you in crafting your response.  If you are interested in KSB’s guidance and response letter template or have any questions about the request, drop one of us a line or shoot an email to all of us at ksb@ksbschoollaw.com.  

ACLU SRO Record Request

Good morning!  Everyone at KSB is out of the office January 25-26, 2024 for our law firm’s winter retreat.  We’re really excited to be planning how to better serve our clients and support schools.  BUT…just like it’s inevitable that one of your kids gets sick when your significant other is out of town, another statewide record request started coming in yesterday.  

This time, the ACLU of Nebraska is requesting a host of documents related to school resource officers (SROs).  The request is largely focused on the items a school must have in place under Nebraska state law: MOUs, training, policies, etc.  If you’ve forgotten, in 2019 the Unicameral passed a series of statutes that require these items to be in place for schools that staff or contract for SROs.  If you have an SRO (more on this in a second) and this is news to you…contact us or your school attorney.  KSB has training, sample MOUs, and policies available if you need them.

Deadline.  Before you respond, note on the bottom of the ACLU’s request that they have provided some additional time to respond.  We believe schools would be wise to use this additional time to internally assess whether you have documents that would be responsive to this request and, then to gather and review them before sending a response to the ACLU.  

What’s an SRO?  Before you respond, keep in mind that not every law enforcement officer who may work with or come into your school is an “SRO.”  Section 79-2702 defines SRO this way:

School resource officer means any peace officer who is assigned, as his or her primary duty, to any school district to provide law enforcement and security services to any public elementary or secondary school and does not mean a peace officer responding to a call for service, providing proactive enforcement, providing law enforcement or traffic direction for a school-related event, or providing temporary services as a school resource officer when the assigned school resource officer is not available

If a local officer drops by occasionally or even often, you may call them an SRO but they may not be an SRO as defined by law.  To meet the statutory definition, they must be assigned to your school “as [their] primary duty.”

When we get done with our retreat on Friday, we’ll get to work putting together some guidance to assist our clients (and anyone who may want it) in responding.  Take a breath, sit tight, and keep doing awesome things for kids.  If you have questions about the ACLU’s request or about your compliance with the training, MOU, and policy obligations, please drop us a line at ksb@ksbschoollaw.com or give us a call at 402-804-8000.

Weighing Your Options! Legal Changes to Option Enrollment

With schools all in session and the excitement of fall (pumpkins, high school athletics, cooler weather, Husker football?), many school administrators have likely already put the last Unicameral session out of their minds.  As these blog posts often do, we are here to give you homework (insert collective groans and boos)!  LB 705 was signed by the Governor on June 1, 2023.  Ultimately, LB 705 made a few substantive changes to the option enrollment laws we want to remind you about today. 

If you are a KSB Policy Service Subscriber, you received a memo from us yesterday explaining the changes and all of the new legal and reporting requirements.  We also sent an updated sample resolution and a sample denial letter to use to supplement NDE’s option application form.  If your district is not a KSB Policy Service Subscriber, let us know if you would like to purchase the additional information and forms.

Special Education Applications.  Special education option applications must be reviewed on a case-by-case basis.  School districts can no longer declare that the district’s entire special education program is at capacity or set capacity numbers for their special education programs.  This change has been in effect since September 2, 2023.  

If an option application indicates that a student has an individualized education plan (IEP) or has been diagnosed with a disability as defined under your  the director of special education services must review the students’s IEP.  The special education director must determine if the school district has the capacity to provide the student with their services and accommodations.  If you deny the application, you must identify the programs, services, and accommodations you cannot provide.   

Programmatic Capacity.  If the school board wants to declare a program, class, or school unavailable (i.e., “closed” for all options students) for the following school year, the board must pass a resolution with such a declaration prior to October 15th of the previous school year, making the effective deadline October 14.  This cannot include your special education program.  We refer to this as “Programmatic Capacity,” where you declare a program, class, or building closed and unavailable to any option students.  

Numeric Capacity.  You can still set specific capacity numbers for any “program, class, grade level, or school building” and can set those capacities later in the school year by resolution.  The only requirement to act prior to October 15 is for declaring programs, classes, or buildings closed.  As an example, you don’t have to decide by October 14 whether the capacity of your third grade classrooms is 20 students or 22 students or 26 students or whatever.  As there is no specific statutory deadline for those determinations, your board can make those numeric capacity decisions later in the school year, if it prefers.

Other Standards.  The law has always allowed the board to adopt standards beyond capacity.  You can still consider and use other standards your board may have implemented in the past.  Make sure to apply them without consideration of a student’s disability, prior discipline history, mastery of English, or other extracurricular abilities.  

Building Capacity Reporting.  Schools must annually establish, publish, and report the capacity for each school building under the district's control “according to procedures, criteria, and deadlines established by the Nebraska Department of Education.”  This requirement specifically references “building” capacity.  You are not required to publish or report other capacities you set.  

Denied Application Reporting.  Also, beginning on July 1, 2024, each school will have to report to NDE information related to rejected applications.    NDE has indicated that it will require school districts to report (1) the number of option applications denied; (2) an explanation of each denial; and (3) if the applicant stated there was an IEP or student has been diagnosed with a disability, whether the district provided the application the specific reason for denial.  NDE must also collect specific information from learning community schools.  After discussions with NDE, they will do some form of data collection for this information in 2024 prior to the July 1 deadline, so you should be aggregating this now for all applications you deny.   

If you are a KSB policy subscriber, we updated policy 5004 in June to reflect these changes, and we sent out the memo, sample resolution, and sample denial letter yesterday.  If you have any questions about option enrollment or would like a copy of the resolution, please email ksb@ksbschoollaw.com or call us at (402) 804-8000.

Let’s Get It Straight, Rules are Great(!)? An Overview of Recent Rule 51 Compliance Considerations

In recent years, we have noticed an uptick in Rule 51 complaints against school districts.  As a refresher, Rule 51 is the administrative code for special education enforced by the Nebraska Department of Education.  This summer, our awesome law clerk Amanda went through all the recent final investigative reports posted on NDE’s website and analyzed the data.  In general, the percent of investigations requiring corrective action has increased substantially from the 2020-2021 school year through the 2022-2023 school year.  From our analysis, we noticed several interesting trends and compliance areas schools should review.  

First, prior written notices continue to be an invaluable tool for special education teachers, administrators, and lawyers.  In 2022-2023, 37% of the number of issues flagged in the Procedural Safeguards section of Rule 51 (section 009) related to prior written notice.  The majority of the investigative reports surrounding this subsection were geared towards instances when a PWN should have been provided and not about the actual substance of the PWN.  As a refresher, the NDE tip sheet provides that a district must send a PWN when it “proposes to initiate or change the identification, evaluation, or educational placement of [a] child; proposes to initiate or change the provision of a free, appropriate public education (FAPE to [a] child; refuses to initiate or change the identification, evaluation, or educational placement of [a] child; or refuses to initiate or change the provision of FAPE to [a] child.”  The investigative reports provided instances where PWNs were not provided as legally required such as: a district refusing to provide transportation, when amendments to the IEP occur, when there is a change of placement, including a change of placement relating to student discipline, and when the district denies a parent request for services such as additional paraprofessional support or therapy.   

In general, the IEP section of Rule 51 (section 007) represents the area with the largest investigative draw.  Specifically, 51-007.07, IEP development, had the highest area of corrective actions required.  Of those reports, six involved corrective action regarding the supplementary aids/modifications provided in the IEP.  What does this mean for schools?  IEP teams must include the projected date, frequency, location, and duration in the program modifications and accommodations sections of the IEP.  Because of the current SRS programming, this means you will likely need to create an Excel spreadsheet or Google sheet to copy and paste into the IEP which includes the required data.  Simply listing “as needed” is not legally sufficient.  In addition to this focus area, schools should continue to focus on goal writing, baseline data, and measurement of goals. 

Another area of compliance under sections 007.02C and 007.02D is the accessibility of a student’s IEP to each “regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.”  This includes informing the teacher of “his or her specific responsibilities related to implementing the child’s IEP.”  Schools must proactively ensure all teachers and service providers (including substitute teachers) receive and review a student’s IEP.  It is not legally sufficient to simply place a copy of the student’s IEP in each staff member’s mailbox.  We recommend reviewing your internal procedure for informing staff of IEP responsibilities.     

If you have questions about these issues or would like to schedule a special education training/PD session for your general education staff, please contact Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or send us all an email at ksb@ksbschoollaw.com.

I Thought We Were Done with Executive Orders after COVID! Nah…

Yesterday, Governor Pillen signed Executive Order 23-16, establishing the “Women’s Bill of Rights.”  It’s pretty short; you can read the whole thing here.  The EO picks up where LB 575 left off, defining “sex”, “female” and “male” in the context of gender identity.  (As a reminder, LB 575 is a legislative bill that was introduced last January and that seeks to adopt the Sports and Spaces Act, but has yet to pass.)  More on that shortly.  With conflicting federal court opinions, new Title IX regulations on the way, and everything else out there, about the only missing ingredient in this confusing swirl was a gubernatorial executive order.  Well, here we are.

As school lawyers, we strive to cut through the politics surrounding these (and other) issues and instead focus on the anticipated legal impact of the specific actions being taken.  In that vein, what is notable about this EO is not so much what it says, but what it doesn’t.  Despite the subtitle (“Establishing a Women’s Bill of Rights”), the EO doesn’t lay out any new rights that it creates in favor of women.  Despite some of the press surrounding it, the EO does not explicitly direct K-12 schools to take any specific actions regarding interscholastic athletics or sex-segregated facilities like bathrooms and locker rooms.  And, as most of you are probably already thinking, many (all?) of those issues are likely governed by the federal Title IX statute and regulations and the court decisions interpreting them.  So, candidly, we’re still considering what the legal impact of the EO’s brief directives will be for K-12 school districts, if any.  So, what does the EO actually say?

It requires “all state agencies, boards, and commissions” to adhere to the definitions of male and female based on reproductive organs at birth when making rules and adjudicating cases.  The plain reading of the EO means that requirement applies only to state-level entities, not political subdivisions like schools.   

The EO does not explicitly dictate that schools must handle things like athletics, locker rooms, or bathrooms in any particular way.  By the same token, the EO does not provide schools with any sort of legal protection if they are sued by students and families over these issues.  The only section that specifically mentions schools says that for purposes of collecting vital statistics to comply with antidiscrimination laws, schools and other entities have to define individuals as “male” or “female” based on reproductive organs assigned at birth.  It’s not clear what vital statistics data means in this context or how that would change the application of Title IX or any other laws with their own definitions and requirements.  

Our advice to schools remains unchanged: unless and until action is required, we believe the best legal approach is to work with students and families who are facing transgender-related issues on an individual basis.  Passing an explicit policy one way or the other isn’t legally required.  At  best, you’ll make the news; at worst, you’ll find your school in litigation.  This EO doesn’t help clarify much, nor has it changed our thinking--at least not yet.

For now, we recommend sitting tight, at least until it’s clearer what this EO was intended to do and how it will be interpreted.  If you have any questions about the EO or any other issues relating to gender identity and the law, let us know!  You can always contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or  by sending all of us an email at ksb@ksbschoollaw.com.

The Blog Post You Wait All Year For - The KSB Husker Football Predictions are Here

We know you have all been waiting to read our spicy (and sometimes offensive . . . looking at you Jordan) Husker football predictions.  For those of you who are new to KSB or don’t recall last year’s post, it was determined that Steve is likely The Most Amazing Man Alive Jesus Nostradamus or should be offering services as a fortune teller based on his scarily accurate predictions.  Check out last year’s post here.

KAREN’S PREDICTION:

Let’s be honest. Nebraska football is like a weird aunt in your family who used to be married to a nice, but boring guy. She ditched him because she thought she could do better, but instead she has brought one weird dude after another to your family Christmas. Remember how she started out with that arrogant loser from back East? Or the angry guy who got into a fight with grandma and kicked her cat? What about the year she was dating a guy the same age as grandpa? Then last year was the worst – she showed up with the party animal she knew from her college days who got drunk, spiked the eggnog and then left before we were done opening presents. This year she is bringing someone who seems normal, but the night is young and who knows what is going to happen? In the end, we all know that the real problem is not the boyfriends. It’s your aunt. She hasn’t aged well and definitely needs some therapy to address her internal issues. Until then, no new boyfriend is going to work out well.

And friends, that sums up my feelings about Matt Rhule and our Nebraska Cornhusker football team.

Could the 3-3-5 defense work in the B1G? Maybe, if we had an athletic linebacker corps. But we only have two returning players in this position group (and last year we had one of the worst passing defenses in the league).

Is Jeff Simms talented enough to lead the Huskers at quarterback? Probably. But just who is going to step in to fill the QB slot when Simms inevitably is injured on an RPO? Chubba Purdy, God love him, is going to get thrown into the fire at some point this year and we all remember how that went in 2022.

Finally, is the offensive line REALLY going to be able to win the battle in the trenches? Come on, folks, let’s be real. I love the kids who will likely be starting (doesn’t Teddy Prochaska seem like a big lovable puppy who hasn’t quite grown into the size of his paws yet?) but Nebraska has neglected this crucial area of recruiting for at least a decade.

Week by week will look like this:

Minnesota: Loss (even a blue moon won’t help us here)

Colorado: Win (please sweet Jesus do NOT let us lose to Neon Deion)

Northern Illinois: Win (I’m not THAT down on Rhule’s squad)

Louisiana Tech: Win (see above, but don’t get cocky, Huskers)

Michigan: Loss (pray for the KSB faithful with two snarky Wolverines in our midst)

Illinois: Loss (this is where stuff gets real)

Northwestern: Win (at least one family member is more messed up than us)

Purdue: Win (this is a toss up, but Memorial stadium will make the difference)

Michigan State: Loss (see above, only we are on the road)

Maryland: Win (c’mon, their mascot is a TURTLE for God’s sake)

Wisconsin: Loss (Mike Leach is gonna be laughing from the beyond unless I’m wrong about our talent with the 3-3-5, which is designed to deal with modern offenses like the Air Raid)

Iowa: Loss (Hawkeyes will be desperate to save Brian Ferentz’s job and hungry to avenge last year’s loss)

That’s it. The good news is that Nebraska will get to 6 wins and make a Bowl game for the first time in eight years. The bad news is it might be in Detroit.

And maybe, just maybe, after spending a Christmas away from her family in the frozen wasteland that is Michigan, Aunt Nebraska will come home, make a new year’s resolution to get herself figured out, and make this new relationship work. (But don’t count on it; there are a couple of recent divorcees from California that are coming to Christmas next year and that might make things even weirder……)

STEVE’S PREDICTION:

Before we get to 2023, can we review your 2022 predictions? Sure.

Did you predict that the Huskers would go 4-8? I sure did.

Did you tell us Scott Frost would be fired midseason? Yep.

Did you tell us that the Huskers would sh*t the bed at every opportunity? You know I did.

And did they? You know they did.

Did you really predict that Matt Rhule would be our next head coach before last season even started? Yes indeed.

Wait a minute. Wasn’t Coach Rhule employed as an NFL coach at the time you made the prediction? Yes. Yes he was.

Did Blue, in fact, Go? You know it. The second straight year in the playoff!

Is it true that everyone at KSB called you Pimp Daddy Steve after the Michigan-Nebraska game? Daddy doesn’t kiss and tell.

You are amazing! Will you marry me? Wow. Even more disappointment for you Husker fans. I married the Luckiest Girl EverTM last season! On to 2023 . . .

I did get one thing wrong last year. I told you the Husker fans would be drinking the Kool-Aid this season. Of course, they are instead drinking the Rhule-Aid. My bad. I admit - it is tempting to take a sip. On paper, Coach Rhule seems to be the most qualified coach that Nebraska has employed in a long time. True, he stumbled in the NFL, but that NFL experience surely made him a better coach. And he’s turned around not one but two college programs in his previous stops. He took two and one-win teams and turned them into 10 and 11 game winners. Remember the last time the Huskers won 11 games? Yeah, me neither, but I’m willing to bet it was before I had all this blond hair. The Husker team he has inherited isn’t nearly as bad as the Temple and Baylor teams he inherited. However, the Huskers are trying to reverse a long streak of mediocrity and stench. Under Scott Frost, the Huskers were 16-31. They had a 10-26 record against Big Ten opponents. And they were 0-14 against ranked teams. That. Is. Terrible. On the plus side, the Huskers’ schedule this season is softer than my midsection. So what do the experts have to say?

Well, in 2021, the oddsmakers set the over/under on Husker wins this year at 6. That was EASY money. Last season, Vegas set the over/under at 7.5 regular season wins. It was funny then. It’s even funnier now. How could the experts have been so obviously wrong? But this year, I’m seeing the number set at 6.5 wins. I have to be honest - I don’t have a great feel for this year’s Husker team, but that number did not make me laugh out loud. Perhaps that is good news for the Huskers and the “experts” are getting closer to predicting the correct win total? Let’s take a look.

The Huskers open the 2023 season with a loss to a bunch of Boat Rowers. But they bounce back with three straight wins against Colorado, Northern Illinois, and Louisiana Tech. Oh, 3-1, and the Rhule-Aid drinkers will be hootin’ and hollerin’! But wait. It’s time for the game we’ve all been waiting for - the Michigan game. The recently reinstated Jim Harbaugh is bringing the best damn team in the Big Ten to Lincoln, Nebraska. It’s not going to be pretty. But don’t worry. Coach Harbaugh will soften your loss with some free cheeseburgers (but you gotta promise not to tell the NCAA). You then hit the stretch of the schedule that will make or break the Huskers season. Illinois. Northwestern. Purdue. Michigan State. Maryland. Once upon a time, Nebraska would have demolished these teams. Heck, just seven years ago they probably would have beaten them all. I predict they go 3-2 in this stretch, bringing their record to 6-4 headed into the final two games. That leaves the two most difficult games on the schedule for me to predict. The Huskers travel to Camp Randall Stadium to face the Wisconsin Badgers who also have a hot new coach of their own. The Huskers put up a valiant effort, but ultimately fall short. They then head home to face Iowa. I wouldn’t mind seeing a Husker victory. I mean, it’s Iowa and, let’s face it, the last good thing to come out of Iowa was Bob Feller. The last five matchups with them have been decided by one score or less. And last year, the Huskers finally managed to pull out a win against Iowa and end a seven-game losing streak against them. Unfortunately for Husker fans, the Hawkeyes, led by former Wolverine quarterback Cade McNamara, exact revenge for last year’s loss and pull out a victory at Memorial Stadium. Final record: 6-6. That’s right folks; you better take the unders again this year! But at least you’re bowl eligible!

BOBBY’S PREDICTION:

It looks like most of my colleagues are going to print money by fading Nebraska’s regular season win total in Vegas (currently over/under 6.5 wins over 12 games).

Maybe they can get some Iowa players to put the bets in for them.

Unfortunately, my gut tells me my colleagues are probably right. There are just so many variables with this team and this schedule. Many of Nebraska’s games are against teams with new coaches and/or coordinators. Watching Kirk Ferentz fire his son will be amusing, too. Normally we should be thrilled about a relatively weak schedule against so many other teams with big variables, but we’re one of them.

If you accept the objective fact that Frost was the worst coach in program history (on and off the field), you could be more optimistic. A competent coach makes a bowl game last year, and we return a lot of starts on both sides of the ball. Plus if we’re all honest, the B1G West is pretty bad. But this year will be marred by Frost’s complete failure to identify the right talent, recruit it, and develop it. We’re incredibly thin at critical positions (DL, WR, OL, QB). I’m buying what Rhule is selling, but he just won’t have the bought-in, developed depth this year.

Minnesota: L. On the road, primetime game, against a bald dweeb who has a pretty solid program established. They’ve started slow before, but it’s just too soon, kinda like Steve’s parole.

Colorado: W. !*#& them. Both teams are rebuilding, but if the mercenary style works in college football for Neon, it’ll be the first time. I don’t buy it. I wonder if his Louis Vuitton cowboy hat comes with a free belt.

NIU and LaTech: W and W. One thing I feel better about with Rhule is games like this. I expect a fast start and well-prepped team, because he’ll want to get lots of guys reps, avoid young transfers, and won’t have letdowns in his first 2 home games.

Michigan: L. I’m sure Harbaugh is pissed after being jilted by the NFL and wetting his khakis over the 3-game suspension. But this team will be tough, because Jim is still auditioning for that NFL job next year.

Illinois: L. I don’t like it, but Bielema is a top-3 coach in this conference. He looks like your DrUncle, but he’s a solid coach. We'll be better disciplined, but they'll be more disciplined.

Northwestern: W. I think it was going to be a tough year for NW even with Fitz at the helm. I think Rhule will show progress as the season moves along.

Purdue: W. I have no clue what this team will look like after a complete identity shift from Brohm to Walters. As the source of many of our should-have-won games the last few years, I think we eek it out.

Michigan State: L. It’s possible Nick Saban is the only coach who still wins after making $10 million a year. Jimbo and Mel Tucker filled their diapers after big paydays, but I think Mel is a decent coach who will have a better year.

Maryland: L. They will get no preseason attention and sneak out 7ish wins. Nebraska will be one of them.

Wisconsin: L. I think this will be a close one, but they’re just better up front than we will be, and a mid-November win in Madison just isn’t going to happen.

Iowa: L. This one really pains me, but I think Iowa will take as much pleasure in us not making a bowl as we took last year keeping them out of the conference title game.

Overall: 5-7. I can see 3 other games we could win, and I'm betting the spreads will be a touchdown or less. But Rhule will need a full year to suck all the poison out of this snakebitten team.

SHARI’S PREDICTION:

I’ve lost a lot of interest in Husker football over the last couple of years. Let’s be honest, there hasn’t been that much to cheer about. We’ve been on the same cycle for how long now? Hire a coach, lots of hype, complete disappointment and a large payout to move onto the next coach. I think the Rhule era will be similar. I think the transfer portal and NIL have ruined college football. It’s hard to build team chemistry when one player doesn’t like a coach or isn’t getting enough playing time, they move on. With all that being said, I’m still a Husker fan and wish them the best. I will tailgate, go to a few games and hope for the best, while also cheering for the Fighting Irish! Here are my predictions: Minnesota - loss. Colorado - win. Northern Illinois - win. Louisiana Tech - win. Michigan - loss. Illinois - win. Northwestern - win. Purdue - win. Michigan State - loss. Maryland - loss. Wisconsin - loss. Iowa - win. We will end the season 7-5.

COADY’S PREDICTION:

I am guzzling the Rhule-Aid! I am genuinely enthusiastic about the beginning of the Rhule era and what a fresh start will bring our Cornhuskers. I acknowledge that good-feeling speeches do not a football team make. That being said, Coach Rhule couldn’t have struck each and every chord better since his hiring was announced. The proof is obviously in the pudding, but I have faith (without any evidence) that things are on the right track.

The tough thing with this year’s predictions, though, is that the team could be WAYYYYYY better and still such improvement may not show up in the Win-Loss column. Until Nebraska shows marked improvement in the trenches (which is a clear priority for Rhule), the rugged Big Ten is an inhospitable barren wasteland that is tough to survive. I am counting wins against Colorado, Northern Illinois, LaTech, and Northwestern. That’s it; that’s the list. I see sure losses against Michigan and Wisconsin. Every other game is a toss up in my opinion. I can literally talk myself into a 10-2 season, but see a 4-8 record as just as (or even more) likely. Still, I choose to be optimistic (‘cause this is supposed to be more fun than self-loathing, right?) and I will assume that the Huskers split games against Minnesota, Illinois, Purdue, Michigan State, Maryland, and [Tyler J. Coverdale’s] Iowa. Nebraska finishes 7-5 and the Era of Good Feelings Around Nebraska Football begins in earnest. Bring on the Gophers!!!

JORDAN’S PREDICTION:

As someone who has spent plenty of time on the golf course with Bobby, I know what it looks like to watch someone talented fail to live up to their potential. It's a feeling Nebraska fans are all too familiar with after watching Scott Frost pull the program deeper into mediocrity after empty promises of par-saving putt. And so, here we are, where it feels like the Huskers and their coach can only be graded on the generous curve of low expectations. Any performance demonstrating the most basic fundamentals through the fourth quarter (or even a modicum of pride) will be heralded as the first signs that Nebraska is “back”.

And that is the perfect environment for Matt Rhule to repair his reputation and restore his confidence after a tough stint in the NFL. His teams won’t have to be that good (and they won’t be), they’ll just have to be competitive (and they will be), and he’ll be able to stick around as long as he likes (until a real blue blood opens up). This long, just better than mediocre marriage will begin with a first season full of early, moral victories (Colorado, Northern Illinois, Louisiana Tech, and Illinois) before tapering off into hopeful losses, and ending with a fifth and final win at home against Iowa to get everyone excited to be disappointed again.

TYLER’S PREDICTION:

This was difficult for me to write. For the last three years, I have structured this post around a single joke. It’s a very good joke. It’s a joke about how the Huskers could not find a way to beat a school to the east despite that school had not yet discovered the forward pass or nepotism rules. A school that at one point made the mistake of admitting yours truly, thus unknowingly condemning me to a life of defending myself against this rabid pack of Husker fans that are my colleagues.

This task wasn’t terrible for the last few years, but only because of that one joke: “Nebraska hasn’t beaten Iowa since 2014.” It was a joke that kept me going. And then Brian Ferentz took that joy away at Kinnick Stadium on November 22, 2023. I’m sure there are other people to blame. But it’s more fun to blame him.

To my colleagues’ credit, they could have been much more insufferable than they were. Anyway, the joke is now dead, as should be Brian Ferentz’ career as an offensive coordinator, but alas he remains. I can’t imagine why. It’s odd that he has the same last name as the head coach though.

So what happens, now, Husker fans? Is that a light at the end of the 25 year tunnel, or just a freight train coming to bring you back to reality?

A little of column A, a little of column B. 6-6.

Wins: Colorado, Northern Illinois, Louisiana Tech, Northwestern, Purdue, and Maryland

Losses: Minnesota, Michigan, Illinois, Michigan State, Wisconsin, and Iowa (Please let me have this last one. I truly don’t care about any other game on this schedule).

SARA’S PREDICTION:

Forgive me football gods, for I have sinned. I have continued to root for, support, and be disillusioned by the Huskers for the last thirty-three years. As we approach another Husker football season, I continue to commit the ultimate sin of every Nebraskan - optimistically thinking this football season will be “the year” the Huskers catapult to the top of the ranks. With that said, I am going to take a less aggressive approach this year with my prediction. It is more likely Santa Claus will move his operations to Brazil than the Huskers having a winning record this year.

Even while Matt Rhule might be the proverbial savior for the Huskers, I am hedging my bets with a 4-8 record. I anticipate the following losses: Minnesota, Colorado, Michigan, Illinois, Purdue, Michigan State, Maryland, and Wisconsin. I am chalking up victories against Northern Illinois, Northwestern, Louisiana Tech, and Iowa. So fellow Husker fans, let’s crack a cold one, enjoy the camaraderie of crying together after another mediocre season, and continue to get our hopes up that the Scarlet and Cream will have a winning season next year.

MATT’S PREDICTION:

Well Well Well! Back at it again GO BIG RED! Let’s get into it. New Coach again and starting at Minnesota on a Thursday night, well that’s a loss. Nebraska is following RHULES and MINNESOTA IS ROWING BOATS, I’m giving the edge to Minnesota, so LOSS. 0-1! Next they play Colorado in Boulder, I feel like Shedeur Sanders will show up against the Huskers and throw for 300 and add a rushing TD. I do think it will be a tight one like 35-31 because of the lack of defenses showing up. LOSS! 0-2! They get Northern Illinois at home, which means another tough battle for the Huskers. I feel like Jeff Sims finally wakes up and rushes for 2 TD and throws for 2 TD's and pulls off their first win of the season. 1-2! They get LA Tech at home and we watch the Blackshirts struggle against a 3-9 team a year ago, but pull off another win, which gives them a streak of 2 wins. Now Michigan comes to town. I’m sorry Husker fans this won’t be close. They lose by 28 and Jeff Sims gets benched! 2-3! They leave and play Illinois in Champaign. Like most teams nowadays Illinois has a transfer at QB and probably isn’t very good, but against the Blackshirts he looks like a man amongst boys and throws for 300 and 3 TD’s. LOSS! 2-4! I feel like Husker players have been following the RHULES through 6 games and beat a dumpster fire Northwestern team! 3-4. Here we go again with a winning streak! JK! They lose to Purdue and Jeff Sims has 2 interceptions. 3-5! They travel up north for the next game and play Michigan State. You never know what you're getting from MS, other than the QB play will be bad. This is a toss up, but I have to go with a low scoring game and the Huskers somehow lose this one. 3-6! I think Tagovailoa has a breakout game against the Blackshirts. He throws for 350 and 4 TD’S. Loss 3-7! They go back up north and lose a close one (24-21) against the Badgers. 3-8! They come back home for their last game against the Hawkeyes and lose again. Rhule might be the answer, just not this year. 3-9!

ASHLEY’S PREDICTION:

Well this may be a Hail Mary prediction from me yet again, but I have faith that this season will be better than 4-8 (maybe just slightly better).

The Scott Frost era was definitely a disappointment to say the least and Husker fans are definitely looking for/hoping for that glimmer of hope that the Husker program will once again be restored (sooner than later). Will Rhule be the coach to bring this glimmer of hope to Husker fans? I sure hope so or they will be paying another hefty buyout, if not!

I predict Nebraska will go 5-7 this season (when I really wanted to predict 6-6)! Why 5-7? New coaches coaching in the Big 10, a new QB with 30 touchdowns and 23 picks in his college career, new tight-ends, new wide receivers and a new defensive scheme. I hope these boys (big and small) are ready to move! Last season I predicted 6-6 with Scott Frost and the Huskers went 4-8, so 5-7 for Matt Rhule’s 1st season as head coach could be promising (fingers crossed) and feels safe! I highly recommend watching the 3 episodes of “A Look N” on You tube for some Husker preseason hype, if you haven’t already watched it!

And just for the record, I posted my predictions 1st this season….not last! WINNING, even if I lose (again)!

Wins: Colorado, Louisiana Tech, Northern Illinois, Northwestern and Purdue

Losses: Illinois, Iowa, Minnesota, Michigan, Michigan State, Maryland, and Wisconsin

The Great Debates of Our Time

Pepsi v. Coke?  Hermione v. Ron?  Star Wars v. Star Trek?  Karen v. Bobby?  While there are many pop culture debates brewing online, the newest debate in the Nebraska education landscape is the impact of LB 753, the Opportunity Scholarship Act.  As a refresher, LB 753 was signed into law by Governor Pillan on May 30, 2023 and provides $25 million in tax credits to those who donate to a “scholarship granting organization.”  The “scholarship granting organization” will then distribute scholarships for students to attend private and parochial schools.  

Two organizations have formed during the debate of this bill: Support Our Schools Nebraska and Keep Kids First.  Currently, there is a petition circulating across the state seeking signatures to place the repeal of LB 753 on the ballot in November 2024.  Why does all this background information matter to school lawyers? (You might be thinking, “Because lawyers are boring, duh!”)  In fact, we have had several schools contact us for guidance about school employees who wish to  assist in the political process.  It is important for school districts to remind staff of the Nebraska law prohibiting use of public resources to support or oppose a ballot initiative.  

Section 49-14,101.01 provides the general statutory language for use of public resources in connection with the political process.  It specifically states: “A public official or public employee shall not use or authorize the use of personnel resources, property, or funds under his or her official care and control … for personal financial gain.”  The law goes on to prohibit public employees from using public resources for the purpose of campaigning for or against a ballot question.  The Nebraska Accountability and Disclosure Commission has expressed the opinion that: “A public…employee may express his or her position with regard to a ballot question [or candidate] and may even urge voters to vote for or against…provided that government personnel, resources, property or funds under that official's care and control are not used for that purpose, and provided further in the case of a public employee that he or she does not engage in such political activity during office hours or when otherwise engaged in the performance of his or her official duties.”  In addition to state law, Rule 27 provides that educators have an obligation to the public.  Specifically, “the educator shall not use institutional privileges for private gain or to promote political candidates, political issues, or partisan political activities.” 

What does this mean practically for schools?  School administrators should remind staff that they are prohibited from campaigning for or against one of the organizations involved in the debate surrounding LB 753 when it involves school resources or time.  To illustrate, here are a few examples.

Example #1: District teacher sends an email blast to all of his friends and co-workers using his school e-mail in support of signing the petition for Support Our Schools Nebraska.  This is a violation of state law and Rule 27.

Example #2: District teacher shares the Keep Kids First Facebook page on the teacher’s personal Facebook page.  The teacher does so during the school day.  This is a violation of state law and Rule 27.

Example #3: District administrator sends an email to all staff voicing her opinion about LB 753 and stating the action she wishes her staff to take.  This is a violation of state law and Rule 27.

There is a lot of political activity the school employees may be able to engage in—including advocating for or against political candidates or ballot initiatives—so long as the employee does not use school district resources to do so and does not do so on school time.  We believe that ensuring that all school employees are aware of these limitations will help avoid some of the negative consequences that can arise under the rules and laws discussed above.

If you have any questions about these or other issues, please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or all of us at ksb@ksbschoollaw.com.

“An Ounce of Prevention, is Worth a Pound of Cure:” Required Staff Trainings

Ahh, the joys of summer break.  Nothing is sweeter to administrators’ ears than the silence of the school building in summer.  Before you turn on your autoresponder, blend up a pitcher of pina coladas and head to the beach for the summer, now is an excellent time to review mandatory and recommended staff trainings and place them on the district’s calendar for when your staff returns this fall. 

MANDATORY TRAININGS

Dating Violence.  Schools must provide dating violence training to staff deemed appropriate by a school district's administration.  The dating violence training must include, but is not limited to, basic awareness of dating violence, warning signs of dating violence, and the school district's dating violence policy.  Neb. Rev. Stat. § 79-2,141.  NDE’s website has good resources to use for this training.

Concussion Awareness.  The school must make available training approved by the chief medical officer on how to recognize the symptoms of a concussion or brain injury and how to seek proper medical treatment for a concussion or brain injury to all coaches of school athletic teams.  The NSAA used to require this training annually, but that has never been required by the statute.  The NSAA issued an “approved ruling” which now allows the training every 3 years, with training in the first year for new sponsors.

 Behavioral and Mental Health.  LB 705 changes the suicide awareness training to Behavioral and Mental Health Training.  It will require “all public school employees who interact with students and any other appropriate personnel” as determined by the superintendent to receive at least one hour of behavioral and mental health training with a focus on suicide awareness and prevention training each year.  The change is not effective until September 10, 2023. 

Evaluator Training (Evaluating Administrators Only). All evaluators must be “trained to use the evaluation system used in the district.”  This would include all evaluators (superintendents, principals, etc.), but there is an exception for boards of education that evaluate the superintendent.  NDE Rule 10 § 007.06(B).

Pupil Transportation Vehicle Drivers/Safe Pupil Transportation Plan.   Districts must annually provide a 2-hour training for individuals who drive pupil transportation vehicles required by Rule 91.  Additionally, Districts must provide one-time training to pupil transportation vehicle drivers of small vehicles on activity trips prior to driving.  

Training for All School Resource Officers and All Administrators in Buildings with SROs.  Section 79-2704 of the Nebraska statutes requires each school resource officer or security guard and at least one administrator in each building which has an SRO assigned to it to “attend a minimum of twenty hours of training focused on school-based law enforcement, including, but not limited to, coursework focused on school law, student rights, understanding special needs students and students with disabilities, conflict de-escalation techniques, ethics for school resource officers, teenage brain development, adolescent behavior, implicit bias training, diversity and cultural awareness, trauma-informed responses, and preventing violence in school settings.”  If your SRO or building administrator have not received this state-mandated training, then this summer is the perfect time to get that completed.  Here is a link to KSB’s SRO training.

Title IX.  As of August 14, 2020, the members of your Title IX Team (i.e., Title IX Coordinator, Investigator, Decision-Maker, Appellate Decision-Maker, and Informal Resolution Facilitator) must all receive specific Title IX training.  If that hasn’t been completed—or if you have a new member to your Title IX Team who has not received that training—that training must occur as soon as possible.  As you have most likely heard us say before, we strongly recommend that all district employees and board members also receive basic Title IX training, with an emphasis on the legal definitions of sexual harassment and how to report it to the appropriate people.  We anticipate the new federal regulations will require ALL staff to receive training.  While you are enjoying your well-deserved summer break, the KSB attorneys will monitor the Title IX situation and will let everyone know what the final regulations require when they are published. 

STUDENT ASSEMBLIES

Digital Citizenship Assembly (AKA “Digcit”).  The calendars are already filling up for the fall.  We recommend reaching out to book your student digcit assemblies now.  As a quick overview, Digcit is an hour-long assembly focused on educating students about sexting, inappropriate pictures, cyberbullying and the related consequences, both school based and criminal.  All assemblies are sprinkled with the usual KSB sass and humor.  Typically, the sessions are separated into middle school or junior high and high school.  

UPCOMING SUMMER SPECIAL EDUCATION TRAINING 

If you just can’t get enough special education training, there is an excellent national conference close to home this summer.  The Midwest Educational Leadership Conference will be held June 19-21 in beautiful Breckenridge, Colorado.  The speakers include KSB School Law’s own Karen Haase.  If you would like more information or to sign up, just click here.  

If you have any questions about trainings or would like to schedule the KSB crew to conduct a staff in-service or Digcit, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.    

I Need Money, Not a Job: Hiring High School Workers for the Summer

Detasseling.  Babysitting.  Bag boy at the local grocery store.  We all remember our first jobs.  The glory of 5:30 AM bus rides to wet cornfields to detassel corn.  A true midwest gift to teenagers 13 through 18 trying to earn a few bucks.  But can a school district be a student’s first summer employment experience?  Recently, we have received an uptick in calls from school administrators who are looking to fill temporary custodial positions with high school workers during the summer months.  High school students may be an excellent solution for schools during the three months of summer.  However, there are certain considerations Nebraska school administrators should review when hiring high school workers.

Minimum Wage

Nebraska law carves out an exception to the state minimum wage for school districts.  Specifically, Neb. Stat. § 48-1202(2) states: "Employer . . . shall not include the United States, the state, or any political subdivision thereof . . .."  This language means that school districts are excluded from the category of employers to which the state minimum wage applies and are not subject to the Wage and Hour Act.  Instead, a school is only required to comply with the federal minimum wage requirements.  The federal minimum wage is currently $7.25 per hour.  While high school students may be unwilling to work for $7.25 an hour, it is legally permissible.

Employment Certificate for Minors 14 and 15 Years of Age

The Nebraska Department of Labor requires a form be completed by a school administrator regarding any minors who are 14 and 15 years of age and seeking employment in any workplace.  The form is available here.  If the school district hires a 14- or 15-year old, the Department of Labor also requires Form 110 for employers which should be posted in the area the minor will be working to alert supervisors of the hour limitations.  Fourteen and 15 year olds are limited to working no more than 40 hours in a non-school week.  Additionally, their work cannot begin before 7:00 AM nor last beyond 9:00 PM. 

Driving “On-The-Job” 

Minors under 17 may not drive on public roadways as part of the minor’s job.  A 17 year old may drive on public roadways as part of the 17 year old’s job if the following requirements are met: 1) the driving occurs during daylight hours, 2) the 17 year old holds a valid driver’s license, 3) the driver has completed a driver’s education course, 4) the driver has no record of any moving violation at the time of hire, 5) the vehicle does not exceed 6,000 pounds gross vehicle weight, and 6) the vehicle has seat belts for the driver.  Additionally, driving may not include driving more than a 30 mile radius beyond the work site and transporting more than three passengers.

Lawn Mowing

One area we often see schools use minors for is mowing the school grounds.  Be aware that the federal Fair Labor Standards Act limits 14 and 15 year olds from certain activities.  For example, 14 and 15 year olds may help with “clean-up work and grounds maintenance,” but they may not “use power-driven mowers, cutters, and trimmers.”  See a complete list of limitations here.  If your high school workers are 16 or older, the limitations for work are substantially fewer.

Conclusion  

If you have any questions about hiring minors, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Why Are You So Obsessed With Me? Application of “Sunshine Laws” to Local School Boards

“So oh oh, so oh oh,” sings Bobby.  O wait, you are here for a blog post and not a visual reminder of what Bobby sings every day on his commute?  Just as the infamous Mariah Carey belts out these lines in her classic hit, board members might be feeling this pressure from public scrutiny lately.  Part of the scrutiny stems from state “Sunshine  laws” (like the Nebraska Open Meetings Act and the South Dakota open meetings laws) which inherently (and with good public policy reasoning) safeguard the public’s access to meetings and right to information.  Here are a few common questions and areas of concern which lead to potential open meetings violations.

1. Question: I am the superintendent.  Can I send an e-mail to all the board members simultaneously without a violation?

Answer: This makes us nervous!   Under the Nebraska Open Meetings Act, a meeting is defined as “all regular, special, or called meetings, formal or informal, of any public body for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body.”   Neb. Rev. Stat. § 84-1409.  Similarly, South Dakota law defines an official meeting of a public body to be “any meeting of a quorum of a public body at which official business of the public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.”  SDCL 1-25-1.  If a board member hits “reply all” to an e-mail message, a violation of the open meetings law almost certainly occurred.  If a superintendent would like to send an email to all of the board members, the better practice is for the superintendent to send an email to himself or herself with the board members blind copied (BCC’d) on the email so as to avoid the dreaded “Reply All.”

2. Question: I am the board president.  Are there ramifications if I text another board member during a board meeting? 

Answer: Yes.  This is a violation of open meetings laws.  Board members cannot text each other during the school board meeting about school business.  The same would be true about any other form of communication such as social media.  

3. Question: I am the board president.  What limits, if any, can I place on public comment?

Answer: In Nebraska, the public is guaranteed the right to attend and speak at meetings of a public body.  Neb. Rev. Stat. § 84-1412.  The right of the public to provide input may be limited or prohibited at certain meetings so long as it is not forbidden at all meetings, and the public body may require a member of the public to identify themselves as a condition to addressing the body.  The Nebraska Attorney General has provided guidance that allowing public comment at least quarterly is sufficient to comply with the Act.  

In South Dakota, the public body is required to reserve time for public comment at regularly scheduled meetings.  SDCL § 1-25-1.  The public body may exercise discretion in limiting public comment but may not eliminate any public comment.  Senate Bill 162 which was signed by the Governor in February 2023 will change the law to require public comment at every official meeting with several exceptions.  

Reasonable and necessary boundaries can be placed on public comment in both Nebraska and South Dakota.  For example, uniform time limits can be placed on speakers such as two or three minutes per speaker.  Additionally, a board president has the discretion to stop speech or other conduct that the board president reasonably perceives to be or imminently threatens to cause a disruption of the orderly and fair progress of the meeting.  Similarly, swearing or profanity can be prohibited. 

4. Question: I am a board president.  Can I limit public comment criticizing school officials? 

Answer: In an effort to protect the reputation, privacy, and due process rights of school officials and employees, some school boards have adopted policies or practices of prohibiting citizens from publicly criticizing school officials or employees in open school board meetings.  These policies are typically deemed unlawful by the courts.  Therefore, citizens who speak critically of school employees must be allowed to do so unless their comments, coupled with other behavior, clearly threaten to disrupt the meeting.  To put it simply, each time the board provides the public the opportunity for public comment, it must permit the public to provide comment on any subject.  

If you have any questions about open meetings laws, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

S-O-S, Please, Someone Help Me

In honor of Rihanna being named this year’s Superbowl Halftime Performer (or more likely in response to a notable increase in emergency exclusions of students generally, and students with disabilities specifically), the Nebraska Department of Education issued and updated new “SOS” guidance on disciplinary removals of special education students.  This guidance confirmed that the NDE (consistent with the U.S. Department of Education) generally considers an emergency exclusion to be a “disciplinary” removal that requires a manifestation determination after 10 school days of removal (or a pattern of removals that aggregate past 10 school days) if it constitutes a change in placement.  Although we’ve long understood this to be the Department’s position, the updated guidance provides additional clarity to schools struggling to address threatening or disruptive conduct of a student with a disability. 

SOS Guidance TL;DR

The state and federal regulations implementing the IDEA require that a student be provided procedural safeguards (which begin with a manifestation determination) after a disciplinary removal of more than ten school days resulting in a change in placement.  For years, we’ve taken the position that an emergency exclusion is not a disciplinary action, and therefore could not trigger the procedural safeguards specific to disciplinary removals.  We expected, though, that the NDE would disagree with that position if given the opportunity.  This expectation was informally confirmed by Department officials in the past and was formally confirmed in the October 2022 SOS guidance.

The Department relied in large part on the recent Q&A Guidance from OSEP released in July 2022 (which we blogged about here.)  That guidance provided that the requirements related to disciplinary removals would apply even to “informal removals,” or in other words, “[an] action taken by school personnel in response to a child’s behavior that excludes the child for part or all of the school day, or even an indefinite period of time.”  As a result, the Department opined that “when districts [emergency] exclude a student under Neb. Rev. Stat. § 79-264(b) districts must follow special education discipline requirements” articulated by Rule 51.

So Do We Now Hold A Manifestation For Every Emergency Exclusion?

No.  Rule 51 only requires districts to make a manifestation determination when a student has been removed for more than 10 consecutive school days, or for a pattern of removals accumulating to more than 10 school days, and as a result has experienced a change in placement.

In other words, if a student’s emergency exclusion does not exceed the 10 school day threshold, the district is not required to provide services during the period of removal, hold an IEP Team meeting, or make a manifestation determination. 

Similarly, if the student’s emergency exclusion exceeds 10 school days, and the district provides special education services on the 11th day of removal sufficient to enable the child to participate in the general education curriculum (although in another setting) and progress towards meeting the goals in the IEP, the district is not required to hold a manifestation determination.  

On the other hand, if the student’s emergency exclusion exceeds 10 school days and constitutes a change in placement, a manifestation determination is required, and the District must follow the subsequent procedural requirements depending upon the determination made.

Conclusion

The new SOS guidance provides helpful clarity regarding the Department’s expectations and intended enforcement of Rule 51.  However, in most schools and under most circumstances, the new guidance won’t have a major impact on how administrators are keeping their schools safe.  When a student’s disability-related misconduct can be safely addressed through a change in educational placement and services, a disciplinary removal simply is not the most effective course of action.  In our experience, most schools are using the LRE continuum to address student issues when it can be done safely, are already working to serve and educate special education students during periods of emergency exclusion, and are only using emergency exclusion procedures to assess and address threats and risks.  Additionally, we always recommend schools work with their attorney when a student must be emergency excluded, especially if the student is a student with a disability.  

If you have an emergency you need help responding to, or any other legal questions or issues, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com. In the meantime, you can bring your questions about this guidance to, or just heckle Karen at, her presentations at the Tri-State Regional Special Education Law Conference in Omaha on Thursday and Friday.

KSB’s Husker Predictions Are In!!

This is the post you’ve been waiting for!  But, before we dive into the picks, here’s your reminder that KSB’s annual tailgate party will be held from 11:00 AM - 2:00 pm on September 3.    

If you haven’t RSVP’d yet, you can do so here.

Some of the KSB OGs have been bragging about the accuracy of their predictions since our first publication in 2017.  Thanks to Amanda (our Law Clerk) we are able to see who really has the ability to make football predictions.  

KAREN’S PREDICTION

Let me start out by stating the obvious: I love Cornhusker football.  There should be a state statute outlawing all weddings on Husker football Saturdays.  Anyone who has lived more than three years in this state who cheers against the Huskers should be ostracized and shamed.  (*cough* Jordan *cough* Steve)

But this year my love for this football team feels a little like a parent’s love for an unemployed 20-something who has moved back into the basement.  The kid insists that everything is going great and his dream job is on the way, because he has been “networking” every night drinking bomb pops at Iggy’s bar.  

Yes, I KNOW we have a new offensive coordinator (who is bringing his stubborn commitment to being a pass-first offense to the Big Ten - what could go wrong??)      

Yes, I KNOW we have transfer portal players who are allegedly going to fill holes in literally all of our skill positions and the entire special teams units (and if there is one thing I’ve learned, it is to believe EVERYTHING that online prognosticators say about incoming Nebraska talent).

Yes, I KNOW that this year Trev Alberts bullied Scott Frost into hiring five new assistant coaches (It worked great when management made Michael Scott keep Toby Flenderson in The Office, so it will work out well at UNL…..)

The real heart and soul of any good football team is its offensive line.  Now, I am married to a high school line coach and am the mom of a former offensive lineman, so I may be biased.  But Saint Tom Osborne agrees with me that “the most important segment of any offense is the line.”   This year’s O line must do without Cam Jurgens (and if you think there is no value in being a three-year starter at center, try to remember all those snaps sailing over Taylor Martinez’s head in Jurgens’s first season at center) Matt Sichterman and Nouredin Nouili.  These are big losses (both literally and figuratively).  We did get Hunter Anthony and Kevin Williams Jr., but color me skeptical that this team can be successful with a “plug and play” approach to the offensive line (not to mention the new O line coach).  The most important thing about an offensive line is that it must function as a UNIT – those stunts and twists require YOU to know what you’re doing as a player and for the guy next to you to know the same thing.  That confidence as a unit just won’t be ready for prime time this season.

It all starts with the Week 0 game vs. Northwestern across the pond.  With so many new players, coaches and processes, it is inevitable that the team will be distracted for their first game.  Add in all the blarney that will accompany playing in Ireland, and this game is a close LOSS for the Huskers (and I’ll need to drown my sorrows with a lot of Irish car bombs.)

Week 1 and 2 will feature high-scoring WINS against North Dakota and Georgia Southern, which will have Husker-talk-show-call-in-guy convinced that Nebraska will win out.  He will be as wrong this year as he has been every other year.

Oklahoma comes to Lincoln which will be a fun walk down memory lane to the good ole days until kickoff.  LOSS

We will have a bye week to prepare for Indiana (WE NEED A FREAKING BYE WEEK TO PREPARE FOR THE HOOSIERS!!).  WIN

Every Husker fan seems to assume that Rutgers will be a cakewalk.  Don’t any of you remember having to rally to beat them a couple of years ago in New Jersey?  Noah Vedral will have a point to prove and he’ll make it when the Scarlet Knights hand the Huskers a LOSS at home. 

I predict that Purdue will hand the Huskers a second consecutive LOSS and that the Huskers will WIN against Illinois.  But the Boilermakers and Illini could flip flop.  

When we get to the Minnesota game, know that I hate P.J. Fleck with the white hot hate that comes with this little nerd beating the Huskers the last three years in a row.  Yet as much as I hate to say it, the Golden Gophers know more about recruiting linemen than the Huskers.  This will be a LOSS. 

Michigan - LOSS.  Y’all, you know how painful it is to have not one but two Michigan fans in the office.  My only solace is that the Wolverines are also stuck with a hometown hero coach that they don’t really like all that much. 

Wisconsin used to be cute – a “best value” version of the Huskers.  Except that they are 9-1 against Nebraska since we joined the Big Ten (NINE AND ONE!!! GET ME ANOTHER BEER TO DROWN THESE BADGER SORROWS).  This year is no different.  LOSS. 

God I hate Iowa.  I hate their stupid black and gold uniforms.  I hate that I have to be touched when they wave at cancer kids going into the fourth quarter.  I hate that Iowa has beaten us every year since we hired Tyler-the-Nerdy-Hawkeye-Fan.  But this year will be more of the same.  Kirk Ferentz’s team will hand the Huskers our fifth straight LOSS to Iowa – and by this point in the season, it won’t even be close (GAG). 

That’s it.  Another painful 3-9 season ahead for Big Red.  Just like the drunk kid who has come home to crash in his parents’ basement, the Huskers have focused on the wrong shiny objects.  That is why I guess we just can’t have nice things. 

STEVE’S PREDICTION

Are we really still doing this?  It’s 2022.  Isn’t punching down now frowned upon?  No?  Alright, but remember, you asked for it.

The first half of the schedule.  Northwestern (in Ireland).  Home games against North Dakota, Georgia Southern, Oklahoma, and Indiana.  An away game at Rutgers.  The Huskers should be 5-1 after this stretch.  4-2 at worst.  Yet, somehow, the Huskers will manage to sh*t the bed and be 3-3.  Yep, that’s where this program is these days.  Much like Jordan Johnson after a night of drinking UV Blue or Coady Pruett after eating cheese, they will sh*t the bed at every opportunity.   

Then it’s Purdue, Illinois, and Minnesota.  Once upon a time?  Frank Solich, Bill Callahan, and Bo Pelini would have gone 3-0.  Heck, even Mike Riley might have pulled off 2-1.  The Huskers under Frost go 1-2, and the homegrown hopeful doesn’t get to finish the season.   

Then the wheels really fall off.  The Huskers will pull your Aunt Martha from the stands to coach the final 3 games of the season.  The Michigan game?  I once saw Jordan Johnson challenge Bobby to a game of darts.  It’s going to look a lot like that.  Wisconsin?  Yeah, right.  Iowa?  Nope.  Three straight blowouts to end the 2022 campaign.  It’s a 4-8 season for your Nebraska Cornhuskers, and I wouldn’t be surprised if Husker fans are full blown alcoholics with uncontrolled PTSD by the end of the season.  

The good news?  The Huskers will bring in a new coach (Matt Rhule anyone?), and the hype machine and Kool Aid drinking will begin again.  But don’t you worry.  I’ll still be here to chronicle the inevitable disappointment, and I will continue to be embarrassed by you and for you.  Go Blue!    

BOBBY’S PREDICTION

Vegas has the line at over/under 7.5 regular season wins.  Live futures show the Huskers as a freaking double digit favorite in 6 games this year and slight favorite in 2 others!  I know betting lines aren’t predictive, but are there really THAT many Husker fans (and others) still laying down enough money on this team to make the lines THAT far off based on the past and likely future reality?  That’s hard to believe, but so is Frost’s record at 15-29.

A prudent bettor could have smashed the unders for big paydays over the last 4 years.  A sharp bettor is probably thinking about a progression toward the mean.  I’m neither, as evidenced by my firm-worst predictions the last several years.

It’s a sad state of affairs when 8-4 feels untouchable and 6-6 feels way too optimistic.  But here I am, looking at that schedule and wondering how on earth a semi-competent coach could do worse than 6-6. 

I’m saying 5-7.  That October buyout reduction feels very much in play to me, and if so, that arguably makes the native son the worst coach in Husker history--at least the worst since Bob Devaney started ripping whiskey and heaters in Lincoln establishments.   I’m dead inside.

SHARI’S PREDICTION

Oh here we are with another year of Husker football.  It’s going to be the same as the last few years.  Complete disappointment.  The tailgates will be fun, the tunnel walk will remain a crowd favorite and by the middle of the season all we will hear are the talks of firing Scott Frost and how much the buyout will be.  I’m lucky I don’t live with a Husker football fan so I don’t have to worry about anyone being crabby in the house every Saturday.  So I will still wear my red and white and cheer for the Huskers but I’m predicting a 4-8 season.   

COADY’S PREDICTION

WILLFUL DELUSION.  That’s what you’re getting from me this year.  I am going to go through the same (hopeful) process that I have gone through in years past (e.g., 2018, 2019, 2020, and 2021) only to be sorely disappointed once the season gets underway.  To be clear, my willful delusion is leading me to be hopeful—but not optimistic.  Nevertheless, on with the delusion, err, . . . “predictions.”

Big picture, I see two factors that could be cause for hopefulness, . . . or at least marginal improvement.  First, Nebraska no longer has a quarterback with a proven track record of finding new and interesting ways of making soul-crushing mistakes at the critical moment of nearly every game.

[As an aside, I genuinely wish Adrian Martinez the best at K-State, and I hope that he does well there.  My impression is that during his time here he was a stand-up guy, who was dedicated and committed to Nebraska, and did his best to perform well.  But a new, fresh start is good for him, and I am hoping good for Dear Old Nebraska U.]

Second, Nebraska finally (FINALLY!) has a coach who is at least nominally focused on special teams.  [Insert Karen A. Haase Memorial “YOU MUST BE SOUND IN THE KICKING GAME!” quote here.]  Now, an actual special teams coordinator (as opposed to, you know, an analyst who cannot permissibly coach players during practices without violating NCAA rules) may very well not be enough to overcome other shortcomings.  But I am hopeful that it will at least help Nebraska avoid having an NFL-prospect cornerback field a punt at the half-yard line, take the ball into the end zone, and throw it out of bounds to earn a safety in the first quarter of the first game.  (Too soon?)

Willful delusion leads me to predict sure wins over North Dakota, Georgia Southern, Indiana, and Rutgers.  I see the games against Northwestern and Illinois as toss-ups.  Willful delusion or not, I can’t predict Nebraska beating any of the remaining opponents: Oklahoma, Purdue, Minnesota, Michigan, Wisconsin, or Iowa.

Assuming that Nebraska splits the two toss up games, then Nebraska goes 5-7.  That’s as hopeful as I can be.  I hope that (for ONCE!) I am pleasantly surprised and this Nebraska team beats my expectations.  Godspeed.

JORDAN’S PREDICTION

I predict that the Big Ten will once again be represented in the College Football Playoffs. . .  by Michigan.  

The Huskers, though, are in for a tough year.  Neither Scott Frost nor the offense will be able to bounce back this season after watching an early lead slip out of their grasp in front of the rowdy Dublin crowd.  The Huskers will fumble at least one of the next two games before getting shellacked in the Oklahoma game that Scott Frost desperately wisely sought to avoid and dropping to 1-3.  Around this time, I recommend you remind your fellow fans they can always call 988, the newly established Husker Fan Hotline, for support.

Nebraska will split the next four games and go into a gnarly November schedule 3-5.  After losses to Michigan and Wisconsin, a resounding victory against Minnesota will quickly be forgotten. The team will limp into Iowa City nearly out of contention for a bowl berth, looking for a new coach, and giving some chances to the younger guys. Because the Hawkeyes will be already thinking about seeing Taylor Swift at the Music City Bowl, the Huskers will end the season with a surprising win that will give the fan base that glimmer of delusion they need to survive the offseason.  The record ends up at 5-7, and it’s an ugly end to a disappointing chapter in Husker history.  

P.S. If you’d like to commiserate, I invite you to Steve’s basement on January 9, 2023 to watch the Wolverines get their teeth kicked in by a bigger, faster, stronger Alabama team.

TYLER’S PREDICTION

Ahh, fall.  The weather changes, school starts, and I get to play the heel to my Husker-loving colleagues.  It’s the most wonderful time of the year.

Being an Iowa graduate, but not a fan prior to attending, I’ve never understood the loyalty to someone I’ve always thought was an underwhelming coach in Kirk Ferentz, as well as the totally qualified and not-at-all based on nepotism offensive coordinator.  But then I look to the west and see Scott Frost with his 15-29 record, and I think, “You know, boring offense and perpetual mid-tier bowl games actually seem ok.”

I overestimated the Huskers by record last year, but considering they were the best 3-9 team in history, I do think a regression to the mean that is mediocrity (as opposed to outright awful) is likely.  Maybe they’ll even get to Iowa’s level of annual middling bowl games with the opportunity to get blown out in the Big Ten Championship every now and then.

This is indeed the year Nebraska returns to a bowl game, after clawing their way into the sphere of average.

Likely wins against Northwestern, North Dakota, Georgia Southern, Indiana, Rutgers, and Illinois get them to eligibility. Likely losses against the good teams keeps them from going above .500. 6-6.

Regarding my alma mater specifically, while I do think the Huskers will be better, they aren’t leaving Kinnick with a victory.  First graders across the two states continue to live in a world without an Iowa loss against their “rival” to the west, as we get to eight in a row for the Hawkeyes. 

P.S. I wrote this prediction before seeing Steve’s prediction.  It turns out I could have been a lot meaner and I regret that he beat me to the punch. 

SARA’S PREDICTION

As a former school administrator (who diligently read all the KSB blog posts) and fellow Husker fan who waited anxiously every fall for the KSB School Law football predictions to be released, I am ecstatic to be a participant this year.  Despite my self-professed love of the Huskers (I mean. . . all Nebraska born individuals have this compulsion to love the Huskers), we all know three things are guaranteed in life: death, taxes, and a subpar performance by the Husker football team.  It pains me to admit this, but the Huskers currently have the offensive sophistication of a broken ninja star. With that said, I am projecting victories against Northwestern, North Dakota, Georgia Southern, Rutgers, Illinois, and Minnesota. The Huskers will fall short offensively and lose to Oklahoma, Indiana, Purdue, Michigan, Wisconsin, and Iowa. With that, the Huskers finish 6-6. Huzzah for mediocrity!    

MATT’S PREDICTION

I’ll start out by saying (Let’s Go Skers!).  Man I love when it’s prediction time!  Well with Frosty not calling plays and a new QB at the helm (Thompson/Purdy) probably starting, it’s going to be another great year in Lincoln.  They start in Dublin, Ireland with a win, only because Northwestern is just bad!  Then they play North Dakota, which isn’t North Dakota State, so they will win that one also. Following that is another Division II team GA Southern, so I assume they will win that also!?  With a new head coach at OU this year, they might (might) have a shot at winning, but OU still has better athletes.  That is when I predict they will have their first loss.  Now back to Big Ten play!  Indiana is flat out bad.  They went 0-9 last year in conference play. That will be an easy win there and another win against Rutgers. They still have a winning record up to this point. (Let’s Go Skers)  Now they start to play some average teams, it’s a loss at Purdue and a win against Illinois. Listen to me rambling on with all these wins!  Now it’s time for some losses. I think Minnesota will give them fits and run it down their throats and talking to a close friend they don’t stand a chance in hell.  Michigan will beat them (curb stomp), Wisconsin will beat them (another curb stomp) and everybody knows they can’t beat Iowa, so another loss! Another great year for the Cornhuskers.  My prediction is 6-6!  

ASHLEY’S PREDICTION

After 4 straight seasons of less than desirable football, I find it hard to predict anything other than another season of letdown and despair. Scott Frost and his last ditch attempt to make offensive coaching changes, and bring in a new signal caller, likely won’t do the job. After another year of struggle, the Huskers will finish 6-6 allowing Frost and his below average coaching staff to stick around for at least 1 more year of crappy football. We’re so close though, but it will all come down to the defense. Despite what the season has in store for the Huskers, I will continue to wear RED, but I will be wearing my “Never lost a tailgate” more often, because let’s be honest….this football season is going to again be all about tailgating!

“I Gotta Go Back, Back, Back To School Again” . . . A Checklist for Nebraska Business Managers

[Please hum the tune of the song from Grease 2 for a healthy dose of nostalgia while reading this post.]

The supplies have been delivered, the school is clean, all staff contracts are filled (hopefully), and business managers are prepping for the influx of activities that occur in August.  With the many activities business managers coordinate, we wanted to help you process your tasks with a checklist.  We know nothing brings more joy to a business manager’s type-A heart than a checklist!  Here is a list of the items school attorneys want you to complete  to help you start the school year prepared.  

• Coordinate with your Superintendent to ensure compliance with LB 644.

Statute sets September 5th as the deadline for subdivisions to provide a phone number and proposed tax request to the County Clerk if a joint public hearing is required.  For more information, see LB644.  KSB School Law also held a webinar on the new requirements on July 21.  A recording can be purchased (or if your superintendent participated in the webinar without you, you can access it for free) by contacting Shari at 402-804-8000 or sending an e-mail to ksb@ksbschoollaw.com. 

• Ensure your sponsor/site program applications are submitted by August 15, 2022 for the upcoming school year.  Distribute free/reduced application packets to households during August.  A listing of important deadlines for the school lunch program can be found here. 

• Discuss with district administrators possible trainings for staff.  

Consider the following: 

• Title IX - Ensure the Title IX team has been trained, including any new team members.  As a note, the new proposed regulations include required training for ALL K-12 staff, so this list may need to updated when those regulations become final. 

• Mandatory Child Abuse Reporting

• Legal Updates - This can include topics such as teacher free speech, student free speech, student searches and seizures, special education law.

• Staff Use of Social Media

• Dating Violence

• Suicide Prevention 

• Seizure Awareness

• Update personnel files for new hires.

• W-4 - Reminder, you cannot help an employee complete the W-4 form.  You can direct them to the IRS website for the withholding estimate calculator or encourage them to speak with a tax professional.

• I-9 - This form must be completed within three days of hiring and should be kept separately from the personnel file.

• COBRA initial notice - Upload new hire information into Payflex to ensure initial notices are sent out.  Initial notices must be given to covered  employees and their spouse (if applicable) within the first 90 days following coverage under the health plan.  Don’t forget to term exiting employees as well in Payflex to trigger qualifying event notices. 

• Enrollment Forms (examples): health insurance, dental, vision, 403(b), AFLAC, Heritage Life, etc.

• Other Forms to Consider: Agreement to Accept Compensatory Time Off in Lieu of Overtime, direct deposit form, acknowledgment of receipt of staff handbook, etc. 

• Check on your teachers’ certificate renewals through NDE. 

School districts  should check the status of all pending certificates and contact your school attorney if there is any question about whether the renewal certificate will be issued before the September payroll processes. 

• Consider budget development.  

September 30, 2022 is the new filing deadline for budget and LC-2 to NDE, Auditor of Public Accounts, and County Clerk.  For more information, visit the NDE school budget timeline. 

• Make sure your labor law posters are up. 

In Nebraska, the following posters must be rightly displayed in an easily-viewed area in each workplace location.  The link takes you to the DOL website which includes the posters: 

• Unemployment Insurance Advisement of Benefit Rights 

• Nebraska Minimum Wage and Unemployment Insurance Advertisement of Benefits Rights.

• Federal Equal Employment Opportunity (EEOC)

• Fair Labor and Standards Act (FLSA)

• Federal Family and Medical Leave Act (FMLA)

• Employees Polygraph Protection Act (EPPA)

• Uniformed Services Employment and Reemployment Rights Act (USERRA)

• Review grant funding and liquidation of time restricted grants such as ESSER I, ESSER II, and ARP.  ESSER I funds must be liquidated by October 15, 2022.  ESSER II funds are available for obligation through September 30, 2023.  Remember that your safe return and ARP ESSER plans must be reviewed at least every 6 months, as well.  If the plans change or are updated, the public notice and input obligations apply, along with posting updated plans.

Technical assistance, allocation amounts, and additional information can be found here. 

If you have any questions or would like to schedule a staff training on legal updates or Title IX, please don’t hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send us all an email at ksb@ksbschoollaw.com.

What’s the Protocol? Parental Requests for Testing Protocols From Special Education Evaluations

We frequently get questions about the rights of parents of special education students to access the prompts, protocols and raw testing data produced by a special education evaluation.  These requests raise concerns that seem much broader than one student’s evaluation; the confidentiality and security of testing protocols is stressed as an essential condition of the test’s continued integrity and validity.  And what about copyright?  Despite these concerns, does the parent have a right to access the protocol?  Does the parent have a right to copy the protocol? Before the assessment is administered, the answer is no; access to testing protocols at that time would undermine the evaluation’s validity. After, the evaluation is complete, though, it depends. . .

Right to Access Education Records

Under both state and federal law, parents have the right to access and inspect the education records maintained regarding their student.  Education records are generally defined as “records, files, documents, and other materials” that “contain information directly related to a student” and are “maintained by an education agency or institution.”  20 U.S.C. § 1232g(a)(4). Similarly, with respect to the records of special education students, the IDEA incorporates this same definition. 

Consequently, whether parents have a right to access and inspect testing protocols under FERPA is dependent upon whether those protocols “contain information directly related to a student” and are “maintained by an education agency or institution.”  In Nebraska, parents have a right to copies of any education records, whereas in South Dakota parents would, at most, have the ability to inspect the records.

If a student’s identifying information and answers are being “maintained” – as that term is defined by district policy – the testing protocols are education records. “A test protocol or question booklet which is separate from the sheet on which a student records answers and which is not personally identifiable to the student would not be a part of his or her ‘education records.’" Letter to Shuster, 108 LRP 2302 (OSEP 2007).

Parental Participation Rights

Even if testing protocols are kept separately from a student’s personally identifiable information (PII) or are not “maintained” by a school district, parents may still have a right to access those protocols in whole or in part in order to understand their student’s records and evaluative results.  

According to the federal Office of Special Education Programs (OSEP):

Part B and FERPA provide that an educational agency or institution shall respond to reasonable requests for explanations and interpretations of education records. Accordingly, if a school were to maintain a copy of a student's test answer sheet (an ‘education record’), the parent would have a right under . . . FERPA to request an explanation and interpretation of the record. The explanation and interpretation by the school could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the response in some other adequate manner that would inform the parent.

Id. (Internal citations omitted). 

As a result, if you receive a request for testing protocols it is possible that some or all of that protocol must be provided in an appropriate form.  Ultimately, it depends on what information is necessary and appropriate to explain the student’s education records and facilitate meaningful parental participation.  See, e.g., McKinney Indep. Sch. Dist., 54 IDELR 303 (SEA TX 2010).

But What About Copyright Protections?

I know . . . every time you want to do something fun, we here at KSB stand ready with the Copyright Act of 1976 to tell you to stop. Finally, we’ve come across a scenario where copyright protections seem like they should help you avoid disclosing sensitive testing protocols. Unfortunately, though, this probably isn’t the case.

With respect to requests for records under the IDEA and FERPA, the Department of Education has noted that “federal copyright law generally should not be implicated” because the requests “generally do not require the distribution of copies of an education record, but rather parental access to inspect and review.”  However, unlike FERPA and the IDEA, some states like Nebraska provide that parents also have a right to copies of education records. 

While Nebraska courts have not yet addressed the issue, at least one court has indicated that providing copies of testing protocol that qualify as education records, as required by section 79-2,104, is a permissive “fair use” of the copyrighted materials. See Newport-Mesa Unified Sch. Dist. v. State of Calif. Dep’t of Educ., et. al., 371 F. Supp. 2d 1170 (C.D. Cal. 2005). 

But I Thought Karen Said. . . 

I know. . . I know.  Sometimes it only takes 15 years to convince Karen she could be a little less aggressive. But, in fairness, the extent to which parents are entitled to access to testing protocols and raw responses is truly a fact-dependent inquiry.  In a lot of cases, the evaluative report and other information supplemented by the evaluator is comprehensive enough to interpret records and facilitate meaningful parental input.  After a few recent experiences, though, we’ve found it is beneficial to err on the side of retention in the event that the protocols and other documentation generated during the evaluation become necessary.

Going Forward

We know that many evaluators have a practice of destroying testing protocols and raw response data after an evaluative report has been completed.  Unfortunately, in some circumstances this practice will run afoul of a school’s obligation to provide and explain education records or facilitate meaningful parental participation in special education processes.  As a result, we recommend that you inform all of your evaluators and service providers that they are required to retain testing protocols and other documents produced while conducting evaluations.  In fact, this is a requirement we’ve incorporated into our recently updated evaluation criteria policy.

If you have any questions about requests for access to testing protocols, or any other issue, please don’t hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send us all an email at ksb@ksbschoollaw.com. 

Hurry Up and Slow Down! An Update on Special Education Policies and Procedures

Last year, the Nebraska Department of Education released updated Guidance regarding the development of local special education policies and procedures.  Since then, we’ve had several schools ask whether they should, shouldn’t, or must update their special education policies and procedures to remain compliant.  As policy season looms, we wanted to get everyone on the same page about where things stand.

Your current special education policies and procedures are (probably) compliant.  

If you subscribe to our policy service or have purchased our special education procedures document, we are delighted to assure you that your current special education procedures are fully compliant with state and federal law.  The Department has confirmed this on numerous occasions since we last updated those policies in 2019.  And there haven’t been any relevant changes to the IDEA or Rule 51 since then.

Additionally, while defending clients from Rule 51 complaints we’ve reviewed the special education policies and procedures produced by the Perry Law Firm and believe they are also compliant.

So, if your school utilizes either of these policies and procedures and has kept them updated, you aren’t required to make any changes at this time.   However, if you hear anything differently from the Department or any other administrative agency, let us know.

So what’s the hubbub about?

The Department’s Guidance not only discussed the minimum requirements for policies and procedures, but also incorporated several suggestions and recommendations that the Department considers best practices.  As a result, unless you compare the Guidance with the text of the IDEA regulations and Rule 51, it can be difficult to distinguish between what is and isn’t required.  To make it even more complex, the recommendations call for the development of materials and resources that don’t look like the “procedures” most school districts are familiar with.  As a result, many in the educational community were concerned about the vast disparity between the (fully compliant) policies and procedures currently in use and the best practices and recommendations of the Department.

What’s wrong with best practices being incorporated into policies and procedures?

Nothing. . . if you live in a perfect world and follow them perfectly. On the other hand, if you incorporate best practices and recommendations into your policies and procedures and can’t adhere to them with complete fidelity, you could be unnecessarily exposing yourself to liability or a finding of noncompliance – even if you fully complied with Rule 51!  Remember, Rule 51 and the IDEA establish the floor for compliance, but you may heighten your obligations through the adoption of local policies and procedures.  As a result, we want to make sure that any policies and procedures are developed mindfully and in recognition of what is, and isn’t, required.

Stay tuned. . .

So, for now, it’s time to hurry up and slow down.  We’re wary that hasty changes to the policies and procedures will make compliance more difficult, rather than less.  We are in the process of working with NDE to create a set of “best practices” resources that we are comfortable providing to districts.  That additional resource will not be required but we are hopeful that it will be useful.  We will let our KSBlog subscribers know once we have these procedures developed and approved by NDE.

In the meantime, if you have any questions, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.

P.S. Without much fanfare, changes to the transition requirements in Rule 51 were signed by the Governor, approved by the Attorney General, and went into effect on May 17, 2022.  The most up-to-date version of the rule can be accessed here.  Under the new changes, school districts must develop and include transition plans into the IEP of all students “beginning not later than the first IEP to be in effect when the child turns 14.”  This change to Rule 51 was necessary to bring the rule into alignment with the change to state law that the Unicameral made last year. 

P.P.S. We have had several policy service subscribers ask when our 2022 policy updates will be out.  They may be distributed as early as next week, but our hard deadline is that you will have them no later than May 31.  We are excited to show our subscribers the cool new interface that we are launching!  You will also all be THRILLED to know that this year there are not a ton of required updates.  Our policy subscriber webinar is June 9, 2022 at 10:00 a.m. CST.  

Matters of Public Concern: Staff Political Expression and the First Amendment

As societal and political tensions remain high, Districts have to walk the balance beam of respecting employee’s first amendment rights on one hand, and avoiding controversy in communities on the other.   While staff don’t surrender all of their first amendment rights by working for a school district, schools are still able to stop teachers from using their position as a platform for politics, with support from state ethical requirements as well as constitutional case law.   

Free Speech For Me or For Thee? 

This is America, and we all have First Amendment rights.  In fact, the First Amendment rights of educators are more robust than those of private employees. This is because public employers are “state actors” governed by the First Amendment, unlike private employers.  Schools must respect their employees’ rights to speak “as a private citizen” on “matters of public concern.”  You’ll recognize those phrases from iconic cases like Pickering, Garcetti, and Connick.  

A Two-Part Test

Courts apply a two-part test to determine if a public employee’s speech is protected by the First Amendment.  The first step really asks 2 questions: did the employee speak (a) as a private citizen (b) on a matter of public concern.  If the answer is “no” (to either inquiry) the First Amendment does not protect the employee’s speech.  If the answer is “yes” (to both inquiries), the First Amendment may protect the employee’s speech.

To determine whether an employee is speaking as a private citizen, the fact that an employee is at the workplace is not necessarily dispositive.  Instead, the court will look to whether the employee spoke pursuant to their official duties (which is, of course, more likely in the workplace).  Courts generally  construe a teacher’s “official duties” as applying to all interactions with students and colleagues in relation to school matters or activities. Under the Garcetti case, if an employee is speaking pursuant to his or her official duties the speech is not protected, in large part because the employee is not speaking as a private citizen.  Nebraska has state statutes which affirm this concept for public employees.

To determine whether an employee is speaking about a matter of public concern, courts look at the “content, form, and context” of the statement, along with the employee’s motive in making the statement.  Connick v. Myers, 461 U.S. 138 (1983).  Speech related to a subject that would be of public concern is not protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest.  This means that if an employee speaks out of private interest about a personal grievance with school administrators, the speech is not protected under the First Amendment.  This is true even though the public has an interest in the administration of the school district, and even if the statement is not made pursuant to the employee’s official duties.

But Don’t Engage in Viewpoint Discrimination. . .

Let’s assume there’s a situation where the employee is not making the speech as a private citizen, but rather while they are at work (think rainbow flags or bible verses).  This may fail the test above, but it does not give a district carte blanche authority to regulate the speech in any way it wishes.  Most notably we see this come up when Districts have pressure to eliminate certain instances of teacher speech while allowing others.  This is considered “viewpoint discrimination” (i.e. “we are only regulating this speech because we don’t like the opinion”) and is effectively the worst free speech offense a governmental entity can commit.  You can ban all personal decor by teachers in their classrooms, but you can’t ban only decor espousing a certain message.  See United States v. Alvarez, 567 U.S. 709, 752, (2012). 

Changes Coming?

If you’re a nerd like us, you may have been paying attention to the oral arguments this week in Kennedy v. Bremerton School District.  Kennedy was a football coach who would lead players in prayer on the field after games.  The school eventually placed him on leave after he refused to comply with the District’s requests to halt his actions on the field. 

This case may open the door for employees of districts to be more assertive of their first amendment rights.  We’ll be keeping close tabs on this case when the Supreme Court issues its decision.

What Were You Saying About Ethical Regulations? 

In Nebraska, certificated employees are governed by Rule 27 of the Nebraska Department of Education.  Teachers and administrators who violate Rule 27 risk losing their teaching certificate, among other possible discipline.  Several of the standards in Rule 27 prevent a staff member engaging in political or partisan activity at school:

• The educator shall permit the student to pursue reasonable independent scholastic effort, and shall permit the student access to varying viewpoints.  (004.03A).

• The educator shall not deliberately suppress or distort subject matter for which the educator is responsible.  (004.03B).

• The educator shall not use institutional privileges for private gain or to promote political candidates, political issues, or partisan political activities.  (004.04B).

• The educator shall, with reasonable diligence, attend to the duties of his or her professional position.  (004.04F).

• The educator shall use time on duty and leave time for the purpose for which intended.  (004.06G).

• The educator shall allow others who hold and express differing opinions or ideas to freely express such ideas.

• The educator shall not show disrespect for or lack of acceptance of others.  (005.09C). 

Nebraska’s Political Accountability and Disclosure Act

If professional consequences weren’t enough, any school employee who engages in political activities while working for a school or using school resources (like their school-issued computer) can violate Nebraska’s Political Accountability and Disclosure Act.  Section 49-14,101.02(2) makes clear that a school official or employee may not use personnel, resources, property, or funds under his or her official care and control for the purpose of supporting a political candidate or a ballot issue.  “Candidate” and “ballot issue” are defined broadly and include most candidates for state and federal office and issues that may show up on the ballot.  The Nebraska Accountability and Disclosure Commission (Commission) has explained that this means a school employee may not engage in political activity during office hours or while otherwise performing their duties.  The Commission has fined school employees and other public employees for violating these prohibitions.

Conclusion

Politics are messy, and schools are already messy enough places without them.  If your district wants to ensure staff stay above the fray at work, make sure you’re consistent in your enforcement. If your district is facing difficult First Amendment issues, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.

Good Friday 2022 Q&A

Q: What is the deadline for telling probationary teachers in Nebraska that we are not renewing their contract?

A: April 15

Q: What is the deadline for telling tenured teachers in Nebraska that we are terminating their contracts?

A: April 15

Q: What is the deadline for issuing notice of reduction in force to teachers in Nebraska?

A: April 15

Q: Are you saying April 15 is an important deadline for Nebraska school districts?

A: April 15 is THE deadline by which school administrators must decide whether they want to proceed with the non-renewal or termination of a certificated employee's contract.  

Q: Are teachers obligated by the April 15 deadline as well?

A: Yes.  This is a mutual deadline between districts and their certificated staff.  The Professional Practices Committee and the Nebraska Commissioner of Education have determined that teachers are contractually obligated for the following school year after April 15, unless:

1. The teacher has submitted a resignation prior to April 15, or

2. The board, through policy or provision in its negotiated agreement has agreed to release teachers through a later date.  

Q: Doesn’t April 15 fall on Good Friday this year?  What if we don’t have school?

A: Yes, April 15 falls on Good Friday this year.  Practically, that means your deadline this year may be April 13 or April 14, depending on your school calendar.  The fact that you do not have school on April 15 will not extend your deadline.

Q: What happens if I do nothing? 

A: If you do nothing, all principal and teacher contracts automatically renew.  Unless staff members receive notice on or before April 15 that the board will consider non-renewing, terminating, or amending their contracts, they stay on their current contract.  Please note: this also applies to reductions in force. 

Q: What happens if I miss the deadline?

A: The employment contract renews.  The Nebraska Supreme Court has held that notice even one day late is insufficient notice under the law.  Bentley v. School District No. 25 of Custer County, 255 Neb. 404 (1998),

Q: What about March 15th?

A: What about it?
Q: There’s something about March 15th…

A: Yes, but it’s not a deadline.  Teachers cannot be required to sign a renewal agreement or contract before March 15th.  So think of March 15 as a floor, and April 15 as a ceiling.   

Q: What if I’m not sure about a staff member, or not sure how to issue a notice of non-renewal, termination or cancellation?

A: If you have any questions or reservations about a teacher's continued employment, we recommend that you consult with your favorite KSB attorney by calling 402-804-8000 or emailing us at ksb@ksbschoollaw.com.         

Q: Which member of the KSB crew can eat the most saucy nugs in one sitting?

A:This is the subject of an unwise bet on Bobby’s part. A challenge will be completed soon. The smart money is on our law clerk, Aaron, with Ashley as a dark horse (sorry, Bobby and Jordan!)

Surety Bonds? Blanket Bonds? Fidelity Bonds? What’s with All the Bonds???

We have had several clients report that they have received requests under Nebraska’s Public Records Act from people seeking a long list of various types of bonds and insurance policies.  The letters are based on a suggested format from a national website. 

Do Not Panic.   Despite the fact that the letters refer to two Nebraska statutes, the letters also request numerous documents which Nebraska school districts are not required to have.  If you look down the list of requested documents and you know that you do not possess many of these documents, that does not mean that your district has done anything wrong.

Call Your Lawyer.  As we noted above, these letters are based on samples from a nationwide website that mixes and matches laws from numerous states as well as federal and even international law.  We think most public records requests can be handled locally.  However, we believe this specific request will likely require you to get help from your school district’s attorney to formulate a compliant response.    

Response Within Four Business Days.   The Public Records Act states that if the entire request cannot with reasonable good faith efforts be fulfilled within four business days “due to the significant difficulty or the extensiveness of the request,” you can instead communicate back to the requester.  That communication should include a written explanation of why, including the earliest practicable date for fulfilling the request, an estimate of the expected cost of any copies, and an opportunity for the requester to modify or prioritize the items within the request.

Fees for Gathering and Copying These Documents.  As we read these requests, we believe it is highly possible that you will have to expend significant staff time in responding to these requests. Nebraska law allows you to charge for staff time in responding to public records requests after the first four hours.  Neb. Rev. Stat. § 84-712(3)(c).  Alternatively, if you have to pay a third party to find and produce documents, you can charge for all of that additional expense.  You may also charge a fee for your actual costs (e.g. copying, printing, computer analysis) in responding.  You are, however, prohibited from charging the requester for the cost of your attorney reviewing the public records response.  

Deposit.  You may request a deposit prior to producing the records if you reasonably calculate that the total fee (including copying, staff, and contractor costs) for providing the records would exceed $50.00.  The person making the request will then have 10 days either to narrow the scope of the request or to provide you with the requested deposit.

And one more thing . . . Although these public records requests will require time and effort to respond, we want the education community to be cautious in the conversations we have about them. The public policy of our state gives people the right to request these documents. We certainly do not want to discourage school district patrons from being interested in the operation of their local schools. We also want to make sure that schools scrupulously comply with the letter of the law in responding to these requests. If you have any questions or concerns about navigating requests under Nebraska’s Public Records Act, feel free to call Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or email all of us using ksb@ksbschoollaw.com.