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, which was joined by Governor Noem and Attorney General Jackley.  We’re also aware that Secretary Graves has issued guidance to schools to keep this litigation in mind when making policy decisions. We agree that schools 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. Refusing to implement the new regulations could cause risk for schools if the litigation is unsuccessful, and we believe there are ways schools can structure their policies so as to comply with both state law and the new regulations.  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.

Regional Trainings

We are working with various state organizations with efforts to set up in person regional training.  We will send out more details on those trainings as they are available, but we are generally planning for three trainings across the state toward the end of July. 

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.

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.

It’s Title IX Time…Again!

For almost two years education lawyers have been telling schools to be ready for a paradigm shift in Title IX.  Last Friday (April 19) the doomsday clock struck midnight and the U.S. Department of Education released the final version of its Title IX regulations.  This new set of rules will change the landscape of Title IX, making huge revisions to the Trump administration regulations from 2020.  These new regulations are effective August 1, 2024.  We have scheduled a three-hour webinar for June 25 beginning at 9:00 CST that will review the regs in detail (with all of the snarky humor that you have come to expect from KSB).  If you have already registered for our 23-24 Quarterly Webinar series, you are all set.  If you haven’t registered yet, you can do so here.  

Here is the TL:DR about the new regulations: overall they will be better for schools, staff, parents, and students.  There’s better flexibility and more options to appropriately address the wide range of ages and legal requirements in K-12 schools.  Plus, in most cases, you’ll be able to resolve a Title IX complaint with 1-2 administrators compared to 3-5 different people under the existing regulations.  There are significant implications in the regulations for how schools serve LGBQTIA+ students, and the KSB lawyers are working to create policies and procedures that will help schools navigate their obligations, fully understanding federal court cases and state Attorney General opinions are all over the place.  Take a deep breath and finish your year strong--let us worry about the technical stuff for a few weeks.

For now, here’s what you need to know to plan for your implementation:

All Staff Training Requirement: The new regulations required that all staff – certificated, classified, contracted staff, volunteers, and even board members – be trained on the basics of sex harassment, reporting obligations and related Title IX issues.  KSB will again have on-demand training options available for your staff.  Thankfully for all of us, this training should be shorter than the training you had to take for the 2020 regulations.  More info to come on that.  We’re also happy to provide in-person training for your staff.  

Title IX Team Training: Two pieces of bad news here, and one piece of great news.  The first bad news is that any administrator who might deal with sex harassment is going to need training on the new regulations.  The second piece of bad news is that you’ll need to have at least three different individuals trained on the new regulations available to your district.  The great news is that training for all three individuals will be much shorter than the old training.    

Some ESUs have inquired about Title IX team training for member schools, and some schools are interested in hosting regional training with a few neighboring schools.  If you’re interested in your choices for in-person training for staff and/or your Title IX team, contact Shari (shari@ksbschoollaw.com) for options, pricing, and dates.  August and September are filling up fast, so reach out to Shari soon if you’d like in-person training.

Policies/Handbooks: More good news!  There is no requirement to have the FULL Title IX policy in all of your handbooks!  You will have to post an updated nondiscrimination notice on your website, in handbooks, and a few other places, but it’s pretty short.  We plan to get our policy service subscribers what they need so that it will not impact your normal process for updating policies and handbooks this summer.  We anticipate sharing all of our 2024 policy updates with subscribers toward the end of May.

That’s it for now!  Much of the nationwide chatter is “hurry up and get started on Title IX!”  We view it a bit differently.  We know that the next few weeks are already incredibly busy for school staff.  These new regulations do not need to derail the end of your school year.  There’s certainly plenty to do to prepare for the August 1 effective date of the new regulations, but we’re going to use the flexibility in the new regulations to make things shorter, simpler, and easier to administer.  If you have questions about the current regs or new regs or just want to talk through a plan for your school over the next few months, give one of us a call or drop us a line at ksb@ksbschoollaw.com.  Otherwise, we’ll see you all on the webinar on June 25 at 9:00 CST to walk you through these new regulations in detail.

Hey Now! Don’t Neglect Federal Law (Not just Title IX!)

Here we all were minding our own business, and the federal Department of Education drops the new Title IX regulations on a Friday! (How rude!)  Don’t worry, this post is NOT about new Title IX regulations.  However, we did want to mention them because the news is out there.  Here’s our advice: take a deep breath and don’t worry about the new regulations right now.  We’re on it.  There is an August 1, 2024 effective date.  Districts have time to change their policies this summer and be ready to comply as the school year begins.  One thing you should plan for now is the requirement that all staff members be trained on Title IX.  Overall there are quite a few positive changes for schools and a few that will be tricky but doable.  It’s about 55 pages of regulations and 1,520 pages of guidance that we are reading so you don’t have to! We’ll put out some preliminary thoughts next week, but our last KSB quarterly webinar will take a deeper dive into the new Title IX regs.  It is scheduled for June 25 from 9:00 to 12:00 CST.  If you aren’t already registered, you can use this LINK and get registered to join the fun (?) of exploring the new regs in more depth.  

Now, onto the original reason for this post, a quick review of the McKinney-Vento Homeless Assistance Act.  We have received a rush of calls recently from school administrators asking about students whose living situations are in flux or have been kicked out of their home when the student turned 18.  While it isn’t always easy to remember schools’ obligations, let’s review the federal law.

The McKinney-Vento Homeless Assistance Act was originally passed in 1986, but it was reauthorized in 2015 under the Every Student Succeeds Act or ESSA.  (This law is now a second grader!)  The Act contains a universal definition of “homeless” to be used by public schools and requires schools to address educational barriers for those students facing homelessness.  Under the Act, homeless children are defined as: 

(A) means individuals who lack a fixed, regular, and adequate nighttime residence . . . and

(B) includes–

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; or are abandoned in hospitals; 

(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 103(a)(2)(C)); 

(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and 

(iv) migratory children (as such term is defined in section 1309 of the Elementary and Secondary Education Act of 1965) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described in clauses (i) through (iii).

As you can see, the definition of homeless children is very broad and likely encompasses more students than you may traditionally think of as homeless.  For example, if an 18-year-old is kicked out of a parent’s house and forced to live with a relative, this student is homeless under the federal definition.  Similarly, if a family is evicted from their home and living with a relative in a neighboring town, those students are also homeless.  Students experiencing homelessness have the right to immediate school enrollment and can choose to attend either the last school the student attended (school of origin) OR the school in the attendance area in which the homeless student is now residing (local attendance area school).  This is true even if the school may otherwise have the ability under state law to deny enrollment.  Both schools may have transportation obligations to the homeless student. 

Additionally, schools must identify a local liaison who has the authority to identify and make eligibility determinations regarding homeless students.  Many times this is a district principal or the superintendent.  The local liaison will be involved in the best interest determinations regarding the enrollment of the student.  The parent, guardian, or unaccompanied youth has the right to appeal the best interest determination, and during the pendency of the appeal, the child shall immediately be enrolled in the school in which enrollment is sought.

Summer is a great time to review your district’s homeless policy and its requirements, so add it to the list.  Ensure that you have identified a local liaison and that this person understands the responsibilities associated with the McKinney-Vento Homeless Assistance Act.  In both Nebraska and South Dakota, the Department of Education has resources regarding this law available here and here.  If you have any questions regarding the application of this law to students seeking to enroll in your district, please do not hesitate to reach out to the KSB crew at 402-804-8000 or shoot us all an email at ksb@ksbschoollaw.com.  Enjoy the countdown to summer break!   

Spotted in the News: A Reminder that Title IX Encompasses More Than Sex Harassment

Unless you were born yesterday (which congratulations to Attorney Tyler Coverdale on the newest KSB kid crew member who was born this week! I bet baby Coverdale is equally as excited as school administrators to learn about Title IX from his father.), you have heard us discuss, at length, the 2020 Title IX regulations and the upcoming proposed regulations.  However, as schools focus on the sexual harassment component of Title IX, there is a tendency to forget the breadth of the Title IX regulations.  In particular, many schools overlook the requirement to provide equal athletic opportunities for members of both sexes in high school interscholastic athletic programs—both in terms of numerical opportunities and in equal experiences (such as quality of coaching, facilities, scheduling, etc.).  

Recently, the Sioux Falls School District proposed eliminating the gymnastics program for the 2023-2024 year which resulted in a Title IX lawsuit filed by parents of the participants.  The District cited a variety of reasons for cutting the program including declining participation, inability to find coaches, financial considerations, and interest in other extracurricular activities. The District intended to sell the gymnastics equipment in the fall of 2023; however, Plaintiffs sought a preliminary injunction preventing the sale.  The court granted the preliminary injunction and halted the sale of the equipment on the grounds that the degree to which the District’s girls were already underrepresented among its athletes was unacceptably high (more than 7%) and that ending the girls gymnastics program would only make things worse.  In November, a federal judge upheld the preliminary injunction.  This decision also confirmed the sport would continue for the 2023-2024 season. 

Before schools make a decision to add or cut a sports program, it is crucial to analyze the Title IX requirements and consider the extent to which a school is offering athletic participation opportunities to both boys and girls in numbers substantially proportionate to their respective share of student enrollment.  The law recognizes three separate tests by which schools can show compliance.  If a school meets one prong, it is effectively compliant and in a safe harbor.  Of the prongs, the one typically utilized by schools to determine compliance examines the percentage of athletic “participation opportunities” for each sex and then compares that figure to that sex’s percentage of the overall student enrollment.  The other two prongs are more subjective (which lawyers love) and look at the school’s history of adding opportunities for the underrepresented sex and whether it is sufficiently meeting needs based on current levels of interest.  It’s always worth looking at all 3, even if the focus is on proportionality.

In our experience, schools are well served to examine the state of their current athletic programs and to have an understanding of whether they can show compliance.  This is best done on a regular basis, before you find yourself responding to a request to add or cut an athletic program.  We routinely analyze school district’s athletic programs and provide our advice on the extent to which they can show compliance with their Title IX obligations regarding athletic opportunities and proportionality.  Please note, it is clear under Title IX case law that financial concerns are not a reason to engage in gender discrimination.   If you are interested in knowing how your current program fits within the Title IX requirements or in learning about how adding (or cutting) other sports may affect your ability to show compliance, please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or shoot us all an email at ksb@ksbschoollaw.com. 

What’s Trending Now? OCR Affirms the Importance of Legally Sufficient Title IX Grievance Procedures

Lawyers, especially the KSB lawyers school lawyers, are a strange group of people.  (Have you read our bios? Strange group of people . . .)  Nothing brings us more joy than exciting legal updates in the school law world.  For months, we have been waiting with bated breath for the new Title IX regulations to be released.  The Department of Education indicated the new regulations would be released this month, which is looking extremely doubtful. So, good news!  This blog post is not a deep dive into the new Title IX regulations.  Instead, this is a reminder that OCR is still engaged in compliance reviews of K-12 schools under the current Title IX regulations.  

In a recent OCR compliance review involving a school district in Connecticut, OCR determined the District violated Title IX by failing to ensure adequate Title IX coordination, failing to adopt and publish grievance procedures that complied with Title IX, and failed to respond equitably to complaints.  Here, the District provided OCR with its Title IX policies and procedures which included four separate grievance procedures.  Each grievance procedure had a different primary contact and methodology for resolving complaints.  When conducting the investigation, OCR was unable to find the “administrative regulations” referenced in the policies on the District’s website.

As part of its analysis, OCR determined the District’s Title IX grievance procedures were not compliant with the Title IX regulation.  In particular, the District did not provide notice to employees and students about the Title IX grievance procedures.  OCR determined the use of multiple procedures did not provide sufficient notice to complainants and also likely caused confusion if an employee or student attempted to determine which procedure to utilize.  Specifically, “OCR found that the procedures in place were so intertwined that it made it difficult for covered individuals, as well as District staff, to understand relevant rights and the District’s obligations under Title IX.”   

What should you add to your homework list?  Review your Title IX policy.  We strongly recommend having only one Title IX policy that covers both employees and students.  Additionally, review your website and ensure the Title IX policy is easily accessible and that the Title IX coordinator is listed.  

If your Title IX policy is not legally sufficient, we have a Title IX package available for purchase which includes a Title IX policy, all necessary forms, and a flow chart.  Please reach out if your District has any questions about the current Title IX regs or the proposed regs, please feel free to 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.

23-24 Quarterly Webinars Offered by KSB

After some delay, and waiting to see what the Federal Government was going to do, we’ve decided to go forward with our Quarterly Webinar Series.  As in the past these will be from 9:00 AM to 12:00 PM central. We will also record the webinars and make them available with the materials if you are not able to join us live.  More details on the dates and topics are below.  You can use THIS LINK to register. 

November 28, 2023

Where is Tom Osborne When We Need Him? Mastering the Option (Enrollment)

For years, the Huskers stymied opponents with the deceptively simple triple option.  A well practiced quarterback can read a defense and make strategic decisions as a play unfolds.  Nebraska’s option enrollment program can be similarly deceptive in that the law seems simple, but can be complex when it is actually applied.  The Unicameral’s most recent changes to the option enrollment statutes have created even more subtle complexity that has caused confusion within the education community.  This webinar will explain the option enrollment statutes with the speed of Ahman Green, the tenacity of Cory Schlesinger and the dazzle of Tommy Frasier.

*Participants will receive access to updated option enrollment forms, including capacity resolutions, revised option policies and response letters.

January 17, 2024

What To Do While Counting Down from 504: Strategies to Comply Now to Get Ready to Comply Later

The training that Nebraska schools have most frequently requested for the 2023-24 school year is a review of the requirements of Section 504 of the Rehabilitation Act.  This is perfectly understandable, given the explosion of parent requests for accommodations and the crisis of poor student mental health.  We all anxiously await the release of the revised 504 regulations from the US Department of Education.  However, schools that have solid compliance processes applying the current regulations will be miles ahead in getting ready to comply with the new regs.  This quarterly webinar will provide three hours of practical advice on how to comply with Section 504 using lots of real world examples, including advice on how to best utilize the new 504 forms from SRS.  

March 20 , 2024

Knock knock 

Who's there? 

FERPA 

FERPA who? 

Sorry, I can't tell you that.... 

The Federal Education Rights and Privacy Act has been in effect since the 1970’s – a decade known for hippies, protests, drug use and litigation in schools.  In other words, the more things change, the more things stay the same.  However, FERPA predates email, social media, apps, and other technology common in public education today. KSB’s attorneys will explain how schools can balance FERPA’s requirements with the complex information demands of today.  We’ll detail FERPA considerations when districts interact with law enforcement, use video and security recordings in the discipline context, and operate in an era where parents and other stakeholders expect instant information. 

June 25, 2024

Dude, Where are My Regulations? Unpacking the Current (and New?) Title IX Regulations

All of the legal and political experts insist that the new [new] Title IX regulations will be released before the end of the 2023-24 school year.  These new regulations forecast significant changes to the definition of sex harassment and the process that schools must follow to investigate allegations of sex harassment.  They will also likely include issues surrounding LGBQTI+ students, including students who want to participate in sports and other extracurricular activities.  Every member of a school district's Title IX team should plan on attending this session.    

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.

KSB WEBINARS FOR 23-24

The 2023-24 KSB School Law Webinar Series topics are set!    

KSB QUARTERLY WEBINAR SERIES

This year the federal government is making it really, really tough for school attorneys to plan ahead.  The Biden Administration has announced that it will propose new FERPA regulations this spring, propose amendments to the Section 504 Regulations in August and release new Title IX regulations sometime in October.  These changes will have significant effects on how Nebraska schools operate on a daily basis.  This year, we are focusing all of our “deep dive” quarterly webinars on the new regs.  However, given the fact that the officials at US DOE don’t really care about our schedules, we don’t yet know when these new materials will be released.  So for the 2023-24 school year, we have set the topics, but not the dates for our quarterly webinars.  We will blast information and registration information out once dates are set, but for now, here is the preview of coming attractions, along with the target dates that US DOE has announced at this point.  

ROOKIE AND REFRESHER SERIES

For the past two school years, KSB has offered a series that we called the “Rookie and Refresher Series.”  We have been overwhelmed by your positive response!  Back by popular demand, these short webinars focus each month on a key topic that we see administrators struggle with -- no matter how experienced they may be.  These sessions are be short, practical and to-the-point and are intended to encourage open question time for live participants.  We offer three strands of Rookie and Refresher sessions: one for superintendents; another for principals and a third for special educators.  This year all of the strands will be presented live via Zoom, and also recorded, so you can watch them later if you have a conflict or go back to the recording and any materials for a refresher. 

Click below for cost, dates and topics!

Superintendents

Special Educators

Principals 

CLICK HERE TO REGISTER! If you have questions, please feel free to reach out to ksb@ksbschoollaw.com

Welcome to the Jungle School, We've Got Fun and Games: What Administrators Need to Get Done Before School Starts

July is the month where the proverbial “changing of the guard” happens for school administrators.  With an influx of new superintendents, we decided it was time to remind you of all the “fun” paperwork and political hoopla you should put on your to-do list.

Annual Trainings

Behavioral and Mental Health Training: All public school employees who interact with students and any other “appropriate personnel” as determined by the superintendent must receive at least one hour of behavioral and mental health training with a focus on suicide awareness and prevention training each year.  NDE’s website includes a list of approved training materials.

Seizure Safe Schools Act: Every certificated school employee must participate in a minimum of one hour of self-study review of seizure disorder materials at least once in every two school years.  NDE has materials that have been approved for this self-study on its website.  Make sure that you keep a record of each employee’s training, both for compliance when NDE does reviews and for legal defense purposes if it ever were to be necessary.   

Concussion Awareness.  Technically the Nebraska Concussion Awareness Act only requires that schools make concussion training “available” for all coaches of athletic teams.  We strongly encourage schools to require coaches to review the training and your school’s Return to Learn Protocols on an annual basis.  

Other Required Trainings

School Resource Officer/Administrator Training.  Every SRO and every administrator in a building which has an SRO must complete 20 hours of Nebraska-specific training.  The training required by Section 79-2701 is Nebraska specific, so law enforcement officers who have had training from the National Association of School Resource Officers or similar organizations must also complete this training.  Administrators who have SROs in their buildings must also complete the SRO training.  KSB School Law has this training available via video on demand (and we won’t tell anyone if you watch it at 1.5x speed).    

Dating Violence.  The Lyndsey Ann Burke Act requires all school staff to be trained in dating violence.  Although this is not an annual requirement, it is an easy training to overlook when staff turns over.  NDE has resources for training on dating violence.  If a KSB attorney has done an inservice for your staff, the materials likely included something that can be counted as dating violence training.  

Title IX Training.  Even though the Biden Administration intends to release new Title IX regulations in October, all members of your Title IX team need to be trained on the current Title IX processes.  If you have a new staff member who will serve as a Title IX Coordinator, investigator, decision-maker or appellate decision-maker, check to see if you can document their receipt of this training.  If they were trained at their prior district, you will need to post the materials from that training on your website.  If they have not been trained, KSB has video on demand training on the current regulations (and we’ll also have tons of resources on the new regulations when they come out).  

All Staff Title IX Training.  The current regulations do not technically require every staff member to be trained on Title IX, but every staff member can impose liability on the district if they do not respond to sexual harassment in the (counter-intuitive) way the regulations require.  The Biden administration has telegraphed its intention to require all staff to be trained.  Therefore, school districts should use their discretion on training all staff.  Knowing that you may need to re-train everyone on the new regs, you might forego this all staff training as a back-to-school item.  However, we are lawyers and we always think more training is better.  ALICAP has video on demand on this topic, as does KSB.  (We just don’t want you to blame us when you have to re-do that training later this school year.) 

Driver of Pupil Transportation Vehicle Training. Drivers of pupil transportation vehicles must receive Level I instructional training in the operation of vehicles that transport school children.  A “refresher” Level II course must be taken every five years after the Level I course.  A “waiver” exam for the Level I & II instructional training course is available. The waivers are good for 60 calendar days during which time the driver must take the Level I or II course.   NDE’s website includes a link to the schedule and location of training offered throughout the year at various sites in Nebraska. 

Budget Process Reminders

This is our second year with the “postcard bill,” Neb. Rev. Stat. 77-1633 (the joint public hearing law) to ensure compliance.  This statute was revised during the 2023 unicameral session to require an elected official from the political subdivision to be present at the hearing.  Additionally, bond principal and interest are now excluded.  (See LB243 and LB727 for more information.)

For school boards interested in voting (pursuant to LB 243) to increase the district’s base growth percentage for purposes of determining its property tax request authority, we have developed a packet of resources for boards to take that action.  These resources include (1) a memo summarizing the steps that must be met in order to use this method, (2) a meeting notice, (3) a sample agenda item, and (4) a resolution for the board to consider and approve if it desires to approve such an increase.

If you need to amend the current fiscal year’s budget, the amendment should be made prior to exceeding the budget, and a hearing must occur prior to August 30. (See Neb. Rev. Stat. 13-511.)  Also, consolidated data collections for the Superintendent Pay Transparency Act (which includes submitting the entire approved contract on the NDE portal) are due on or before August 1.  

Policy Reminders

Most of these policy reviews probably occurred at your July board meeting.  But just in case you’re unsure, here is a list of the policies which boards are required to review annually.

Student Fees Policy: According to Nebraska law, the board must review the amount of money collected from students and review the waivers of student fees provided to students under its student fee policy.  It must also hold a public hearing on the proposed student fee policy for the upcoming school year.

Bullying: The board must review its bullying policy.

Teacher Evaluation: The District must communicate with staff members in writing about the evaluation process to comply with Rule 10. 

Safety and Security Committee: Per Rule 10, the district’s safety and security committee must meet at least annually to prepare and/or review safety and security plans and procedures. 

Attendance and Excessive Absenteeism: The board must annually review its attendance policy at a board meeting. 

Student Academic Performance: To comply with Rule 10, the district must distribute an annual report to patrons about the district’s academic performance.

Multicultural Education: Similarly,  the board must receive annually a report about the district’s multicultural education curriculum.

If you have any questions, please do not 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.  

“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

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 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.   

Child Find Obligations/Section 504/MTSS/PBIS.  The IDEA and South Dakota Administrative Rules require training for “appropriate” staff to be able to carry out the district’s “child find” obligations under state and federal law.  These obligations also apply to Section 504.  Any presentation about MTSS and PBIS should also remind staff of ongoing child find obligations regardless of the tiered intervention system your district uses.

Suicide Awareness and Prevention. All teachers, administrators, and other educational professions must receive one hour of suicide awareness and prevention training in order to be issued an initial certificate and a renewal certificate as required by SDCL 13-42-71.

HIGHLY RECOMMENDED TRAININGS

Sex Harassment and Discrimination. Staff should, at a minimum, know where to locate your policy and handbook provisions on antidiscrimination based on sex.  This includes your sex harassment policy, complaint procedure, and grievance procedure (for certified staff).  They should also understand who your Title IX coordinator is and how that person can be contacted.  That will be in your nondiscrimination notices, but reviewing it with staff is a good idea.  Ideally, you would review prohibited conduct.

Section 504 and ADA.  Staff have a right to be accommodated if they have a disability.  The school must provide reasonable accommodations to allow the employee to perform the essential functions of their positions.  You should, at a minimum, cover your process for staff requesting accommodations, reporting workplace injuries, and your complaint and grievance procedures in the context of a staff member with a disability.  

Mandatory Child Abuse Reporting.  South Dakota statute 26-8A-3 requires teachers and school counselors to report child abuse when the employee “who has reasonable cause to suspect that a child under the age of eighteen has been abused or neglected.”  You should train on this obligation and on your district’s mandatory reporting policy and procedures.

Restraint and Seclusion.  Under SDCL 13-32-20, each district must have a restraint and seclusion policy.  We recommend reviewing it and your practices with your staff.  

Professionalism and SD Administrative Rule Chapter 24:08:03.  You should review your board’s expectations for professionalism by way of policies such as appropriate relationships, technology use, and others.  This should include a review of certified staff conduct rules laid out in South Dakota Administrative Rules Code of Professional Ethics.  Ideally staff will certify that they have read Chapter 24:08:03 each year.

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.    

“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.    

THE POLICIES ARE COMING! THE POLICIES ARE COMING! THE POLICIES ARE…COMING?

Well 2022-23 was a heck of a ride, amirite?  The “end” of a novel pandemic; a “novel” Unicameral session; real angry folks all over the place; and oh yeah, some herculean efforts to provide an awesome education in the middle of a staffing crisis.  First and foremost, congrats and great work!

You’ve been asking about policy updates, and we finally got some clarity.  With the passage of LB 705 (the education Christmas tree bill), most of the state-level policy updates are becoming clearer.

Here are a few key policy changes that LB 705 will require:

1. Major changes to student discipline policies and practices.  There are new timelines across the process, hearing officer challenges, and prohibitions on suspension of younger students.  Now don’t you fret Boba Fett--KSB plans to offer training for administrators and hearing officers this summer, along with new discipline forms, to get you ready for the new law.

2. Major changes to option enrollment, particularly addressing option enrollment for students receiving special education services.

3. Major changes to part-time enrollment and participation in extracurricular activities.

4. FAFSA, youth organizations and access, behavior intervention training, and quite a bit more.

If you are a KSB policy service subscriber, here is our plan for getting you the updated policies you will need after the legislative session ends: 

1. June 2: KSB will release our policy update packet.

2. June 7: KSB will hold our annual policy updates webinar (link sent later, and it will be recorded and shared for those who can’t make it live).

3. June 12: Likely board meeting date for most schools.

4. June 16 (or before): KSB plans to release our handbook updates

Before we close the book on the 2023 policy updates, here’s what could shake things up:

1. If the Unicameral moves any other education-impacting bills through in the last few days, we will adjust but still plan to get out everything we can by that first week of June.  July meetings are already packed with hearings and reviews, so we felt strongly about giving you the option of getting as much updating done in June as possible.

2. The U.S. Department of Education (USDOE) is expected to release updated Title IX regulations any day now.  They’ve promised May 2023, but they’ve been late before.  If you remember 2020 (LOL) they released regulations in May effective in August.  The newest regs as proposed would require training for ALL staff, so if that sticks, the effective date will greatly impact additional policy updates and training schedules.  We plan to do on-demand training again, if needed.

3. The USDOE just finished up a 30-day public comment period on its proposed gender participation in athletics rule under Title IX.  Reminder--the proposed rule would ban categorical restrictions but permit schools to make participation decisions using important educational objectives such as competitive fairness and prevention of injury.  If this rule becomes final and effective, it will require policy changes at some point.

4. Oh, and the USDOE is also working on new Section 504 and FERPA regulations.  Let’s hope they have enough on their plates for 23-24.

This is certainly enough to chew on for now, but if you have any questions about the policy updates for this year, drop us a line at ksb@ksbschoollaw.com or give us a shout at 402-804-8000.

“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.

Hot Off the Presses: Proposed Title IX Regulations Published in Federal Register

It’s now official – on July 12, 2022 the U.S. Department of Education officially published draft amendments to the Title IX regulations in the Federal Register.  This is an early step in the regulatory process that initiates a 60-day public comment period.  We anticipate that the Department will then review and respond to the comments it receives.  Based upon those comments, the Department may make further changes to the regulations.  Finally, the Department will publish final regulations and establish an effective date for compliance.  While we won’t know exactly what the final regulations will require, we now have several insights into what schools can expect.  

We’ll cover some of the highlights below, but we want to emphasize that the current process in the regulations will remain in effect until new regulations become effective.

An Expanded Definition of Sexual Harassment

Under the 2020 Title IX regulations, we’ve spent countless hours discussing whether certain sexualized misconduct falls within the definition of “sexual harassment” and, therefore, invokes the formal grievance procedures.  The proposed changes expand the scope and application of the Title IX regulations to address any “sex-based harassment.”  

Popular media outlets have focused on the fact that the proposed regulations expand on the previous definition of sexual harassment to explicitly include discrimination based on sex stereotypes, sex characteristics, pregnancy or related conditions, sexual orientation, and gender identity.  Practically speaking, an even more significant proposed expansion of the definition of sexual harassment is that the proposed regulations replace the 2020 standard of sex-based harassment (“severe, pervasive, AND objectively offensive”) with the broader Title VII standard (“severe OR pervasive”).  In other words, SPOO will become SORP (yay, more new acronyms!).

A Heightened Standard to Respond

If you’ve ever heard us talk about Title IX, you might remember hearing “deliberate indifference” over and over…and over.  For decades, courts imposed liability under Title IX only when the school acts with deliberate indifference when responding to known sexual harassment.  The 2020 regulations officially adopted this standard, which was a significant departure from standards previously used by entities like the Office for Civil Rights (OCR).  The proposed regulations appear to reject deliberate indifference in favor of a higher standard that requires schools to respond proactively to any sign of sex-based discrimination that creates a hostile environment.  This appears to harken back to an “old” standard (pre-2020), when schools could be found to be in violation of Title IX if they knew or should have known that sex harassment could be occurring, even if district staff do not have actual knowledge that sexual harassment has occurred.  This would also mean a return to the “bad old days” where OCR enforces a more strict and less clear legal standard than the federal courts impose.   

Return of the Single Investigator Model

The 2020 Amendments prohibited the Title IX Coordinator or investigator from also acting as the decision-maker.  In a change that most school districts would likely welcome, the proposed regulations would eliminate this categorical prohibition, relying instead on other procedures promoting the equitable treatment of all parties. 

Additional Considerations for Students with Disabilities

The proposed changes address how schools should navigate the difficult intersection between Title IX, the IDEA, and Section 504.  If a complainant or respondent is a student with a disability, the Title IX Coordinator has a responsibility to consult with that student's IEP team or Section 504 committee. 

What about sports and activities?  More to Come . . .

The Department also announced that it intends to take further action to address the participation of transgender students in extracurricular activities.  This may come in the form of formal guidance or proposed changes to the Title IX regulations related to sex-segregated programs and activities.  We’ll be sure to follow up with any updates on this front as they develop.  But the important takeaway is that the Department proposes to add terms like gender identity and sexual orientation to the general nondiscrimination obligations, yet they specifically chose not to address sports and activity participation in these regulations.  

For You Gunners

The full text of the proposed regulations can be found here. The US Department of Education also released a fact sheet on the draft rule as well as their summary of the draft rule’s major provisions.  For all you normal folks who just want to enjoy your summer, don’t worry.  KSB School Law will have plenty of follow up information as the regulations are finalized. 

Conclusion

The Biden Administration did not move to repeal the June 2020 regulations published under President Trump.  In fact, the published draft expands upon the federal government’s regulation of how schools respond to sexualized misconduct in the K-12 setting.  In other words, the work schools put into the 2020 amendments was not for naught, and schools must continue to adhere to the 2020 regulations until any changes become effective.  

Over the next several months, we’ll continue to monitor the regulatory process and provide updates about any significant developments.  In the meantime, if you have any questions about Title IX compliance now or in the future, don’t hesitate to reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000. You can also reach all of us at ksb@ksbschoolaw.com. 

E-I-E-I…EO! President Biden’s LGBTQI+ Executive Order

On June 15, 2022, President Biden released an Executive Order (EO) aimed at promoting equality for the LGBTQI+ community by addressing the disparities and barriers these individuals face across many societal contexts.  Specifically, the EO indicates a commitment to strengthening the supports and policies in schools and educational programming for LGBTQI+ students.  

Please note: This EO is NOT what we’ve been talking about regarding new Title IX regulations which, at least as forecast by the administration, could be released by the end of the month.  (Of course, those regulations were originally scheduled to be released in April 2022, so take the anticipated timeline for what it is worth.)  You’ve probably seen the “50 Years of Title IX'' information across social media, so perhaps the timing won’t be a coincidence.  We’ll certainly have an update if/when new Title IX regulations are released, but for now, we want to give you some initial thoughts on this newest EO concerning schools and LGBTQI+ considerations from the administration.

 To get first to what you are all wondering, the EO does not require any action by schools at this time.  Rather, it directs U.S. Secretary of Education Cardona to develop and release “sample policies” to support LGBTQI+ students' well-being and academic success.  The Department of Education is supposed to provide the sample policies within 200 days.  While nothing in the EO changes current laws, we have no doubt the Department of Education will encourage schools to adopt these policies.

 Secretary Cardona must also establish Working Groups regarding LGBTQI+ Students and Families.  These Working Groups will aim to develop and promote “guidance” around issues like bullying and harassment and identify practices to make health and mental health services accessible and inclusive.  There is also a focus on seeking funding opportunities for programming that will aid in improving those educational and health-based outcomes.  Finally, the EO addresses ways to provide more robust support services for LGBTQI+ students experiencing homelessness.

Overall, the EO highlights the administration's continued focus on promoting LGBTQI+ rights across not only the educational sphere but many other aspects of society.  There are no actionable items from the EO for school districts to take at this time, but stay tuned.  You probably recall the series of EO’s President Biden signed upon taking office addressing these issues, and this is another in the line of actions we expected to see form the administration.  Of course, if any new guidance or regulations have requirements for schools, we’ll keep you posted.  In the meantime, if you have any questions, please feel free to contact us at ksb@ksbschoollaw.com or (402) 804-8000.

Ho Ho HOLD UP! More Changes to Title IX on the Way?!

On December 10, 2021, the U.S. Department of Education announced its intention to amend the Title IX regulations and issue notice of the proposed changes by April 2022.   Although the DOE did not state explicitly how it plans to amend the regulations, the announcement did include several clues about what direction the Administration intends to take with the new regulations.

First, the announcement indicates that the Department plans to revise the “sexual harassment” regulations that were promulgated under the Trump administration in August of 2020. However, it is pretty clear that the Biden administration does not intend to scrap these new procedures entirely.  We do NOT anticipate much changing in terms of the need for separate investigators and decisionmakers or in terms of changes to the structure of the investigations themselves. Instead, we are speculating that the Department will provide additional protections for complainants, or changes to the definitions of “sex harassment” to broaden out the type of conduct that would be covered by the 2020 regs. 

In addition, the Department seems intent on adding regulations that explicitly state that LGBTQIA+ students have protections under Title IX based solely on their sexual orientation and/or gender identity.  These regulations could also bring long-awaited clarity to complex issues related to the involvement of transgender students in interscholastic athletics and requests from transgender students to utilize the sex segregated facilities consistent with their gender identity.  

Importantly, nothing in any of these recent announcements indicates that the Biden Administration simply intends to repeal the 2020 regulations.  In other words, those changes (and their training requirements) are here to stay—likely with some updates, once the powers that be choose to . . . you know . . . actually share what the substance of the changes will be.

In the meantime, if you have any questions about Title IX, the current regulatory requirements, or the status of the law applicable to accommodation requests or discrimination claims of LGBTQ+ students, please don’t hesitate to call Karen, Steve, Bobby, Coady, Tyler, or Jordan at 402-804-8000, or e-mail us all at ksb@ksbschoollaw.com.

First Shot Across the Bow? New Guidance on Title IX from Biden Administration

We knew it was coming, and now it is here.  President Biden’s Department of Education has released official guidance regarding enforcement of Title IX.  In a reversal from one of the last actions of the Department under President Trump, the Department will now interpret Title IX as prohibiting discrimination on the basis of sexual orientation or gender identity. 

Restock your Bostock Knowledge

The guidance relies heavily on last summer’s Supreme Court decision Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. ___ (2020).  Bostock held that Title VII prohibits employers from taking adverse action against an employee because of the employee’s sexual orientation or gender identity.  As the Court explained, basing an adverse employment decision on an employee’s sexual orientation or gender identity necessarily requires the employer to reference that employee’s sex, which Title VII prohibits.  The Department is now applying that same logic to Title IX.  

While the Department relies most on Bostock, it incorporates some other familiar names as well, including Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) and Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), both cases where transgender students prevailed over school districts. 

Targets Acquired

The Department goes into some detail on how this is going to change enforcement, explicitly referring to individuals who are:  

excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity. 

The guidance remains silent on how this interpretation will apply in various circumstances.  For example, Title IX specifically allows school districts to “provide separate toilet, locker room, and shower facilities on the basis of sex,” (so long as the facilities provided for students of one sex are comparable to those facilities provided to students of the other sex).  34 C.F.R. § 106.33.  The new guidance does not explain how those certain sex-segregated facilities will be affected by the Department’s interpretation.  We have a sense of the side of the scale on which OCR may place its thumb in certain circumstances, but this guidance leaves important policy questions unaddressed.  As always, the devil will be in the details.

If your school has any questions about the guidance or how your school’s operations may be affected, please don’t hesitate to contact your school’s attorney, or call Karen, Steve, Bobby, Coady, Jordan, or Tyler at (402) 804-8000. 

After some hustlin’, fussin’, and cussin’...20-21 is in the books! A few things from KSB to keep on your radar this summer...

You did it!  First things first, a heartfelt congratulations and thanks to all board members, administrators, and staff members for navigating what we hope to be the most unique school year any of us will ever experience.  It has sincerely been our pleasure to work in partnership with you, and we remain in awe of what you accomplish with more obligations and relatively less funding each passing year.  

As you look forward to taking some well-earned downtime, we have a few things we want to put on your radar as you make plans.

Policy Updates and Update Webinar.  The weather has finally warmed up, Phil just won a major at 50, and we’re all inspired to play more golf work on policies?  Yeah, you know they’re coming every year around this time: policy updates will be out next week!  We don’t anticipate too heavy of a load, but there will be some key updates related to things like federal purchasing, construction, and others.  

We plan to send out policy updates to subscribers on June 8.  KSB will also be hosting and recording our policy update webinar at 10:00 AM Central on June 10th.  If you are a policy service subscriber, you’ll get all of the updates and a link for the webinar next week.  If you’re interested in receiving KSB’s policy updates, give one of us a call.

Supreme Court and B.L. v. Mahanoy.  On April 28th, the U.S. Supreme Court heard oral arguments in a case that could change the legal landscape for schools.  The key question in the case is the extent to which schools can regulate off-campus speech students make online (in this case, a series of profanity-laced Snapchat rants related to a cheer team).  The Court could more narrowly decide the case and avoid sweeping changes to the rules we all know from the Tinker case (the “material and substantial disruption standard”), or it could fundamentally redefine this area of the law.  Decisions for the current term are typically issued by the end of June, and we expect the B.L. decision to run right up to the deadline.  If the Court goes big with the decision, it could require multiple additional policy and handbook updates immediately.  We know how much you all LOVE multiple rounds of policy updates, so keep an eye on this case!

Biden Admin. Rule/Regulation/Guidance Review.  In addition to the Supreme Court, we’re also waiting on some impending summer updates from the Biden Administration Office for Civil Rights.  On March 8, President Biden signed an executive order requiring the agency to review existing regulations and guidance, including under Title IX, within 100 days.  Last week, OCR announced it will hold public hearings from June 7 to June 11:  “During the hearing, OCR seeks input...on what additional changes to the Title IX regulations and any related agency actions may be necessary to fulfill  President Biden's Executive Orders.”  In addition to another set of updates to the formal grievance process regulations implemented last August, we anticipate they’ll ask for input on other hot-button issues like gender identity, sexual orientation, and transgender individuals participating in sports and activities.  

Just what you wanted to hear...more Title IX regulatory changes and guidance likely to come soon!

ARP ESSER Funds and Plans.  A few weeks back, the U.S. Dept. of Education released some proposed rules governing the use of the newest round of federal stimulus funds dedicated to schools and state departments of education in the American Recovery Plan Act (commonly referred to as “ESSER III funds”).  Karen and Bobby presented on the allowable ESSER III expenditures and the requirements of the USDOE’s proposed rules at NASBO (slides here).  

In summary, before state departments of education and schools can access and commit remaining ESSER III funds, they must solicit stakeholder input and form two written plans: a “Safe Return to In-Person Instruction Plan” and “ARP ESSER Plan.”  The USDOE put out a “template” for what state education departments will need to submit for their plan, which you can view here.  We anticipate USDOE and state departments will have guidance and/or templates for local schools to use when creating their plans.  Both plans must be published on the entity’s website, and we’ll be providing clients with additional guidance on soliciting stakeholder input and drafting your plans as details and expectations become clearer.  The USDOE also recently published an FAQ guidance document on ESSER programs.

Here’s the bottom line: before you start spending ESSER III money, make sure you understand the limitations and requirements--if you’re not sure, call your attorney. In addition to the lessons learned from ESSER II (like Davis-Bacon and the federal procurement rules impacting your plans), there will likely be some new, additional requirements to comply with this summer/fall before committing ESSER III funds.

New Administrator Training.  Many of you have already responded to our survey seeking input about how KSB can support the large cadre of new administrators set to step in for the 2021-22 school year.  For those of you who (wisely) took some time away at the end of May, would you please respond to our short survey about how we can help first-time superintendents and principals next year? 

Whew!  That’s it for now.  If you have questions about any of these issues; are thinking about summer/fall presentations and trainings (we’re stoked schools are scheduling us for digital citizenship again!); or any others, please reach out to one of us!

Biden’s Been a Busy Boy!

Whether you love, hate, or are indifferent to President Joseph Robinette Biden Jr. and his administration, we can all agree on one thing:  the president has been a busy man since taking office.  On his first day in office alone, President Biden signed 17 executive orders, memorandums, and proclamations.  Not surprisingly, many of these actions were taken to directly, intentionally, and immediately reverse many of former President Donald Trump’s policies.  Let’s take a look at some of our 46th president’s actions and what they might mean for schools.

Gender Identity and Sexual Orientation

In Bostock v. Clayton County, 590 U.S. ___ (2020), the United States Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.  On January 20, 2021, President Biden issued an executive order requiring all federal agencies to comply with Bostock.  While Bostock was a Title VII employment case and the SCOTUS made clear in its opinion that it was offering no opinion on sex-segregated bathrooms and locker rooms under Title IX, the Biden administration made its position clear in the executive order:

Under Bostock’s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.) . . . — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.

This position is directly contrary to the one espoused by the Trump administration.  In fact, President Trump’s Department of Education released a guidance document saying the opposite of Biden’s EO the week before President Trump left office.  Don’t be surprised if there is a push for regulatory or other change in the near future that would require schools to ensure that there is no discrimination on the basis of gender identity or sexual orientation in the performance of contracts or activities that are funded in whole or in part by federal funds.  There may also be major changes in the federal government’s approach to this issue, possibly including guidance or regulations that will require schools to allow students to use bathrooms and locker rooms consistent with their gender identity.  

Race and Sex Stereotyping

On September 22, 2020, then-President Trump issued an Executive Order on Combating Race and Sex Stereotyping that prohibited government contractors and some federal grant recipients from using any workplace training “that inculcates in its employees any form of race or sex-stereotyping or any form of race or sex scapegoating.”  On his first day in office President Biden issued his own executive order that rescinded Trump’s executive order.  Generally, Biden’s executive order requires federal “executive departments and agencies [to] recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.”  The executive order also requires federal agencies to review and provide a report within 200 days reflecting findings on “[t]he operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.”  This almost certainly will include the U.S. Department of Education reviewing its policies and activities related to equal opportunity and civil rights to see if they “create or exacerbate barriers to full and equal participation by all eligible individuals.”  In other words, don’t be surprised if there are more and more invasive investigations and reviews from the Office for Civil Rights in response to complaints.  There may also be a renewed focus on disparities in student discipline based on race and equitable access to education, school resources, and school funding.   

Mask Mandate

President Biden approved yet another executive order on January 20, 2021 requiring all “on-duty or on-site Federal employees, on-site Federal contractors, and other individuals in Federal buildings and on Federal lands [to] wear masks, maintain physical distance, and adhere to other public health measures, as provided in CDC guidelines.”  The executive order also directed HHS and the CDC to work with local (i.e. school district) officials “regarding mask-wearing and other public health measures, with the goal of maximizing public compliance with, and addressing any obstacles to, mask-wearing and other public health best practices identified by CDC.”  

Although this is not a directive that applies directly to public schools, we expect forthcoming CDC guidance on school operations to include stronger wording about masking. 

Regulatory Freeze

On January 20, 2021, President Biden’s Chief of Staff issued a memorandum to the heads of all executive departments and agencies to place any pending regulations on hold until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule.  This won’t have any impact on the new Title IX regulations (that Biden and his administration strongly oppose) because they have already gone into effect.  However, it will put on hold any other school regulations in the pipeline that would have impacted things such as special education and others.  

NLRB

President Biden fired the Trump-appointed general counsel for the National Labor Relations Board after he refused to resign ten months before the expiration of his term.  The general counsel had a reputation for supporting pro-employer stances.  President Biden also appointed the NLRB’s sole Democrat to serve as the board’s chair.  He will fill a current vacancy with a Democrat, but the Republicans will hold a 3-2 edge on the board until at least December 16, 2022.  Nebraska schools are governed by the Commission of Industrial Relations in labor matters, so any NLRB moves will not have a direct impact on you.  However, the CIR does look to NLRB decisions on occasion, such as when it encounters an issue it has not considered previously.  This means that a more employee-friendly NLRB could have some impact on Nebraska schools.

More Executive Actions to Come

On January 22, 2021, the Biden administration issued a Fact Sheet indicating that more executive action is on the way.  These efforts include:

• Asking the U.S. Department of Agriculture to consider expanding and extending federal nutrition assistance programs.  

• Restoring collective bargaining power and worker protections by revoking Trump Executive Orders and directing federal agencies to bargain over permissible, non-mandatory subjects of bargaining when contracts are up for negotiation so that workers have a greater voice in their working conditions.      

• Develop recommendations to pay more federal employees and contractors at least $15 per hour and provide emergency paid leave to workers.

While some of these efforts may not immediately or directly affect school districts, they may gain momentum and influence state legislators to attempt to follow suit.  

COVID-19 Toolkit

The CDC has issued a COVID-19 Vaccine Communication Toolkit for Essential Workers, including people working in education.  The purpose of the toolkit is to “educate employees about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.”  The toolkit includes an introductory letter, key messages, FAQs (including one specifically for employers), a slide deck, fact sheets, a newsletter, a letter to your employees, posters and flyers, and  social media messages and toolkit.  The CDC intends to add more materials to the toolkit and encourages you to check back frequently for updates.

If you have any questions about any of these topics or any future actions by the Biden Administration, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000.