You Can’t Watch the Video of My Kid Hitting Your Kid. That’s Private. Or is it?

The Family Policy Compliance Office is the division of the US Department of Education tasked with enforcing the Family Education Rights and Privacy Act.  For years FPCO has issued confusing and contradictory guidance on just what schools may or should do with photographs and videos of students. FPCO has now issued a new FAQ guidance document clarifying what that office believes a district should do when a photo or video is an education record for multiple students.  The easiest example of a video which is an education record for multiple students is a video of two students fighting. Obviously the video will include more than one student, and will constitute an education record. So can the district disclose the video to both sets of parents? Can one set of parents claim that the video is protected by FERPA and can’t be disclosed?  What about the students who are standing around watching the fight? The new FPCO guidance covers these questions and addresses how photos or videos become education records, how FERPA impacts a district’s response to requests from parents to view or get copies of those records, and how FERPA intersects with state law.

Directly Related

Generally, a photo or video of a student is an education record when it is directly related to a student and maintained by an educational agency or institution.  So when is a photo or video “directly related” to a student?  The FPCO has taken the position that this is a decision that schools must make on a case-by-case basis.  The factors the school should consider include:

• Was the picture or video used for disciplinary action?
• Does the picture or video show a violation of any law?
• Does the picture or video show a student being injured, attacked, having a health emergency, or being victimized in any way?
• Did the person who took the picture or video intend to make a specific student the focus of the picture or video?
• Does the picture or video contain personally identifiable information that is contained in the student’s education record?

The FPCO gave specific guidance on pictures and videos that include a multitude of students:

“A photo or video should not be considered directly related to a student in the absence of these factors and if the student’s image is incidental or captured only as part of the background, or if a student is shown participating in school activities that are open to the public and without a specific focus on any individual.”

Viewing the Picture or Video

If a video is an education record for multiple students, as in cases where students are fighting, FERPA requires the district to allow parents of each student for whom the video is an education record to view the video.  Before you show the parents of one student a video, you are required to redact the video to cut out other students if you can do so without destroying the record itself. In previous guidance from the Department of Education (which you can read here), the Department advised that since a district could not blur the faces of some students involved in a fight without costly software, and the meaning of the video would likely be lost if they tried, they should show the entire video to the parents of all students involved.  In most cases, this means that parents of both students may review the video of two students fighting, even if the parents of the other student object to that review.

Parents frequently ask for copies of student videos.  Even when the video is an education record for multiple students, FERPA does not prohibit the release of copies of the video to inquiring parents.  The FPCO guidance specifically states that the district may release copies to the parent of one of the students in a video without the consent of the parents of the other.  Nebraska state law requires districts to provide copies of education records if parents request them and pay reasonable copying fees under NEB. REV. STAT § 79-2,104.  Please note: the district CANNOT charge parents for the cost of redacting or editing a video and if the parent cannot afford the fee, that cannot prevent a parent from obtaining  a copy of the record.

Education Records and Law Enforcement

It’s important to note that FERPA excludes pictures and videos created and maintained by law enforcement from education records.  If your district has a resource office that is equipped with a body-worn camera, the video taken on the camera will be a law enforcement record unless disclosed to the district, and subsequently maintained by the district.  You should review any memorandum of understanding or contract your district has with the local police department or city to make sure this is made clear in the document.

If a picture or video is identified as an education record of a student, it can only be disclosed with consent from the parents, or if the disclosure falls into a FERPA exception.  This includes disclosures to law enforcement. If there is an emergency that threatens the health and safety of students, schools may disclose security and other video without notice to and consent from parents.  If law enforcement requests a copy of education records and there is no emergency, the district should either obtain consent from parents or ask law enforcement to provide the district with a subpoena or court order that requires the disclosure.

Conclusion

Districts have an obligation to maintain the confidentiality of education records.  However, if one video is an education record for multiple students and it cannot be redacted or segregated, the parents of all students involved may view and request copies of the record.  If you have any questions about your district’s obligations to students and parents regarding education records, or questions about how FERPA applies to pictures and videos, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.  

FLSA Update: Are We Paying Coaches Correctly, and Should We Ask the Department of Labor to Help Us Double Check?

There have been two recent changes in the way the Department of Labor (DOL) handles wage issues.  The DOL has issued new guidance on community member coaches in a recently published opinion letter.  Additionally, the DOL has created a new nationwide pilot program called the Payroll Audit Independent Determination, or PAID Program, to resolve issues of backpay that stem from minimum wage errors, overtime miscalculation, and the misapplication of exempt status.  Both of these developments could affect your district. Bobby and Tim discussed these issues during the NASBO conference this week in Lincoln. You can take a look at the slides from that presentation here.

Department of Labor Opinion Letter.  

We usually see issues with minimum wage, overtime, and exempt status in the context of coaching or sponsor assignments.  When coaching assignments are made to teachers, there are generally no overtime or minimum wage issues because the FLSA regulations specifically exempt teachers from overtime and “minimum salary” requirements.  Issues arise when districts fill coaching positions with community members or non-exempt staff, such as paraeducators or custodians. The district generally seeks to pay whoever coaches the same amount as they would pay a teacher, regardless of their job type, or whether they work for the district in another capacity.  Coaching assignments to hourly employees can create an overtime problem, as the hourly employees will work more than 40 hours per week performing both their primary job and their coaching job. School lawyers have been talking about the “coaching custodian” and the “sponsoring para” for years. Community member coaches can create a minimum wage problem, as the hours they put in could result in them receiving less than minimum wage for the total hours worked.  

Recently, the Department of Labor has released a letter that simplifies this issue regarding community member coaches.  In a nutshell, the new opinion letter establishes that coaching is teaching, and thus an exempt position under the FLSA.   As an exempt position, “The school may pay its coaches who are exempt teachers as it deems appropriate.” The letter notes that while a teaching certificate is a clear means of identifying exempt employees, a teaching certificate is not required to receive the teacher exemption, and goes on to state coaches are exempt “if their primary duty is teaching and imparting knowledge to students in an educational establishment.”

However, this opinion letter does not alleviate the wage issues a district faces when hiring a classified, non-exempt member of the staff as a coach.  The opinion letter makes it clear that the new guidance applies only to coaches whose primary duty is coaching.  These community members are considered coaches who are “teaching” so long as they are not otherwise employed by the district in a different “primary duty.”  For other classified staff, the DOL made clear that “[c]oaches whose primary duties are not related to teaching—for example, performing general clerical or administrative tasks for the school unrelated to teaching, including the recruitment of students to play sports, or performing manual labor—do not qualify for the teacher exemption.”  While this helps with community member coaches, it does not do anything to alleviate the FLSA concerns present for non-exempt classified staff members who coach or sponsor district activities.

P.A.I.D. Program.

You can review the DOL’s description of the PAID program by clicking here.  The PAID Program basically amounts to an FLSA self-audit which allows you to try to resolve any minimum wage or overtime issues with your past or present staff.  The pilot program runs for the next six months. The purpose of the program is to resolve overtime and minimum wage issues quickly, without litigation, and to avoid the penalties and even potential crimes associated with involuntary DOL audits.

Your district is likely eligible for the program if is is not currently being sued for wage issues, has no pending DOL complaints or investigations, and has not used the program before.  The steps to participate in the program are straightforward. The district must complete a compliance assistance review which consists of a series of tutorial videos and worksheets. Once this review is certified as completed, the district conducts a self-audit of the last two years of wage payments to search for potential violations.  This audit is submitted to the DOL for review and approval.

The upside of the PAID program is that employees must sign a settlement with the district and the DOL in order to receive payment, and the DOL will not impose any other penalties or damages to finalize the settlement.  By accepting the PAID program payment, the employee waives their FLSA claims. The downside is that any back wages that are owed must be paid by the next full pay period; the employee is not required to accept the settlement offer; and you could alert employees to any other wage issues that exist at the state or federal level.  Finally, the PAID settlement does not resolve any state law claims the employee may have.

Conclusion.  

In its opinion letter, the DOL was careful to state that its opinion was limited to the specific facts presented in the request for guidance.  The broad wording that was used to describe the coaching/teaching relationship makes us confident that community member coaches will be considered exempt employees by the DOL moving forward, but you should consult your legal counsel before making changes to either hour tracking or compensation practices for community member coaches.  The decision to participate in the PAID program self-audit is one that districts should discuss with legal counsel as well, because it could end up causing more harm than good. Remember, you are always entitled to work with your legal counsel to conduct your own self-audit under the FLSA and make employment practice decisions on that basis.  If you have questions about either of these new developments, you should contact Karen, Steve, Bobby, or Tim or your district’s attorney.

Fun April Questions (FAQs)

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

A: April 15

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

A: April 15

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

A: April 15

Q: Are you saying April 15 is an important deadline for 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: 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: Missing the deadline, means you did nothing prior to the deadline.  If you miss the deadline, the contract renews. The Nebraska Supreme Court, in Bentley v. School District No. 25 of Custer County, 255 Neb. 404 (1998), held that notice even one day late is insufficient notice under the law.

Q: Ok, but what if I want to extend the probationary period by one year, because I’m on the fence about a probationary teacher?  Can I extend the probationary period from three years to four years by putting in their renewal agreement that they are still probationary, even though they are entering their fourth year?

A: NO.  The probationary period is limited by law to three successive years.  Prior to 1983 you could extend the probationary period, so you used to be able to extend the probationary period, which is probably why this question comes up with some frequency.

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 school district’s attorney or call Karen, Steve, Bobby, or Tim.         

Q: Who is the most athletic member of KSB?

A: Shari. And it’s not close.  

Protests, Walk Outs, Student Safety, and More: School Issues to Consider in the Wake of the Parkland, Florida Tragedy

The reaction to the tragedy in Parkland, Florida, has been a nationwide focal point for several weeks now.  In many ways it has been the strongest response to such an event that we have ever seen. It will likely prompt discussions and possibly changes in state and federal laws, and just as  importantly, boards and administrators will have no choice but to address local challenges and situations. We wanted to share our responses to the most frequent questions we’ve been fielding on this issue over the last several weeks. 

Threats of School Shootings at your School

Nebraska’s terroristic threats law prohibits any person from:

“threatening to commit a crime of violence” with the intent to terrorize another or cause the evacuation of building, place of assembly, or facility of public transportation. More importantly, the law also prohibits making such a threat with a “reckless disregard of the risk of causing such terror or evacuation.” 

Neb. Rev. Stat. §28-311.01.  

That means that it is not a legal defense for students to say they were just joking or that the threats were not serious.  

Unfortunately, Nebraska schools have faced dozens of these threats since the Parkland shooting. As we tell students and parents all the time, administrators have an obligation to report these as crimes regardless of whether the administrators believe the threat is serious.  We encourage all schools to communicate with students and parents that any threat will be reported to law enforcement and will lead to disciplinary consequences.

We are also urging school administrators to quickly communicate with your community when these threats are received.  Social media means that stories about alleged threats spread immediately -- and the threats are often magnified in the retelling.  We think it is prudent to tell families immediately when there is any threat and to assure them that law enforcement has investigated and that there is no imminent threat to students. 

Student Walkouts and Protests

The ACLU, NSEA, and many others have published “guidance” to students, parents, and school employees relating to their roles, rights, and obligations as various walkouts and protests are planned across the country.  Many have been planned, including proposed activities on March 14 and 24, April 20, and many others. These are the key legal issues to consider as your district plans for these events.

““It is the intent of the Legislature that alternatives to suspension or expulsion be imposed against a student who is truant, tardy, or otherwise absent from required school activities.””

— Neb. Rev. Stat. §79-267

First Amendment Standards.  In general, things like walkouts and protests are governed by the Tinker standard, which permits school administrators to impose disciplinary consequences for student conduct and speech which causes a “material and substantial” disruption or could be “reasonably led to forecast” such disruption.  The most obvious scenario would be students walking out in protest in the middle of class or at another designated time when they are otherwise expected to remain in the building. There is no doubt that a staged walkout during such times would cause a disruption of the school day, thus making them subject to disruption and discipline.  Walkouts and protests which occur outside of school and activity time but on school grounds would be subject to the same disruption standard and also any “time, place, and manner” restrictions you enforce for others who wish to assemble on school grounds.

Student Discipline Act.  Even if the First Amendment would not prohibit imposing consequences for student speech and activities, the Nebraska Student Discipline Act may. Administrators, as you work through these issues remember that long-term suspensions, expulsions, and mandatory reassignments are only available to conduct which occurs on school grounds, in a school vehicle, or at a school activity.  Student conduct outside of school, such as social media posts, is still subject to the Tinker disruption standards, but your potential consequences are less severe.  Such conduct or speech could still be subject to a short-term suspension, activity suspension, in-school suspension, detention, etc.

We’ll discuss your options to address these situations below, but it’s worth pointing out an often forgotten phrase in the Act:

"it is the intent of the Legislature that alternatives to suspension or expulsion be imposed against a student who is truant, tardy, or otherwise absent from required school activities."

Neb. Rev. Stat. §79-267.

Options to Consider for Addressing Protests and Walkouts.  While this list is not exhaustive, we believe these are the most common proposals we’ve heard for addressing these events:

1. Prohibit walkouts and protests which cause disruption and/or may be unsafe.  Students will undoubtedly push back and express frustration about this type of decision, but done properly it is lawful.  

2. Permit students to participate only upon written authorization of parents.  Much like the eclipse earlier this year, we worry about keeping track of dozens or hundreds of students on a case-by-case basis.  Such a system could actually create more liability risk than it prevents.

3. Permit students to participate, but allow parents to “opt out” their students from participating.  The benefit here is that only students whose parents refuse to allow them to participate must be tracked.  You could also provide the option for parents who do not want their students to participate to keep their kids home on an “excused” absence.

4. Permit students to participate if they first attend a discussion group on the issues.  While many students are serious in their conviction about these issues, for others the idea of leaving class is more of a novelty than a protest.  Students who are serious about the protest or walkout will make it a priority, but students cannot be excluded from participating based on their particular viewpoint.  

5. Encourage the activity, take ownership of it, and use it as a teachable moment. If you surround the protest with supervision and civic-oriented discussions, it may help avoid misconduct and keep the focus on the issues rather than just a chance to miss class.  Some schools are considering allowing the protest to occur in the commons area or the gym to ensure it remains safe.

Plan Carefully and Consider Safety Issues.  Obviously this list is not exhaustive, but it does present many of the most common approaches we have heard.  While we believe each approach can be structured lawfully, the key is providing advance notice of the district’s plan. For example, making the directives clear allows administrators to respond appropriately when they are not followed.

You should also discuss your plan with your school attorney and local law enforcement.  We have already begun hearing threats against the protesting students. We’re not sure how smart it is to protest gun violence in broad daylight in the middle of an open space.  If you do intend to allow the protests to occur outdoors on school grounds, you should involve your school safety, security, and/or crisis teams early to address the situation within your existing safety plans and practices.

Staff Speech Issues

School staff member conduct, including participation in protests, walkouts, and engaging in speech at school or on social media, is also protected by the First Amendment in certain circumstances.  When school employees are speaking as “private citizens” on “matters of public concern,” their speech and conduct are protected so long as the employee’s rights outweigh the school district’s legitimate operating interests, like directing staff, integrity of district programs, relations with the staff and community, etc.  If an employee can prove the first two things--that they are speaking as private citizens on matters of public concern--then the balancing test kicks in. So, outside of a few circumstances, this is a case-by-case analysis.

There are a few bright line rules.  When a public employee is speaking pursuant to their official duties, they are speaking as employees and not private citizens.  For example, a teacher is speaking as a teacher when they are speaking during expected duty time. We believe this prohibits them from walking out with students in protest without permission, for example.  Similarly, when they are discussing only items of personal interest and not “matters of public concern,” their speech is entitled to less protection.

For issues related to gun violence, protecting students, and other things in the national spotlight in the wake of Parkland, there is a very good chance a court would view them as matters “of public concern.”  However, employees must still be speaking as “private citizens,” and their speech must be balanced against the district’s interests in the items mentioned above.

Conclusion 

These issues present a variety of legal considerations, but with careful planning and preparation, we believe schools can address them in a lawful and thoughtful manner.  If you have questions about your district’s approach as you work through the issues, you should contact Karen, Steve, Bobby, or Tim or your school attorney.

A Twitter Case to Make Administrators Smile

School administrators spend a lot of times dealing with the problems generated by social media.  We were amused by a recent case in which a student’s use of social media actually solved a problem faced by a school district. 

In Letter to Anonymous, 117 LRP 42289 (FPCO 2017), the US Department of Education’s Family Privacy Compliance Office addressed a mother’s complaint that information related to her son’s recent discipline was divulged from his educational records.  According to the mother, a teacher had accessed the student’s records to obtain information about a recent disciplinary event that resulted in the student’s suspension from school.  The mother alleged that the teacher shared the information from the records with students, and that it eventually became known to members of the school hockey team.

The school responded to the FPCO complaint by pointing out that the student’s brother had shared the facts surrounding the suspension on Twitter. This undermined the parent’s claim, because “FERPA does not protect the confidentiality of information in general, and, therefore, does not apply to the disclosure of information derived from a source other than education records, even if education records exist which contain that information.”  Basically, FPCO concluded that if a student or his family has revealed confidential information about the student on social media, they cannot later complain that school staff must be the source of community gossip about the student.

FPCO’s analysis in Letter to Anonymous is a great reminder for school staff about the scope educators’ obligations under FERPA.  FERPA requires protection of personally identifiable information from educational records.  Generally, FERPA does not require confidentiality for information obtained through hearsay or accounts of personal knowledge or observations. It is still best practice for school staff to refrain from sharing information about students that staff have learned through interactions at school – even if the family themselves have disclosed the same information on social media.    

If you have any questions about your obligations under FERPA, we encourage you to contact your school attorney, or call Karen, Steve, Bobby, or Tim.

“SMILE! You’re on Candid Camera!” ...But can mom get a copy of the footage under FERPA?

School security cameras have become ubiquitous and they can be extremely helpful when administrators are investigating allegations of student misconduct.  But can parents demand to review video footage that includes more than just their student?  What rights to parents have to prevent others from reviewing video footage of their child?  Recently, the US Department of Education provided guidance to a school district struggling with the conflicting FERPA obligations that arose when a parent requests records containing information about both the parent’s child and another student.

Conflicting Obligations

The Family Educational Rights and Privacy Act (FERPA) imposes obligations on school districts to maintain confidentiality of personally identifiable information contained in educational records.  FERPA broadly defines “educational records” to include records directly related to a student maintained by an educational agency or institution.  FERPA also requires schools to provide access to educational records to parents and eligible students. 

When incidents take place involving multiple students, information and evidence, such as a surveillance video or witness statements, likely constitute educational records for purposes of FERPA.  This information often pertains to multiple students.  These documents would be educational records for each student to whom they directly relate.  Such circumstances invoke conflicting obligations; the school is simultaneously obligated to meet the confidentiality requirements of FERPA, while also meeting the duty to provide access to the records.  In an informative letter you can download here, the Department of Education outlined how a school should handle the release of information about an incident involving multiple students.

Letter to Wachter

Earlier this year, the Wattsburg, Pennsylvania Area School district sought guidance in addressing document access requests that created conflicting obligations under FERPA.  The requested records included surveillance video and witness statements related to a hazing incident involving eight students.  The video also contained footage of several students not directly involved with the incident.  Both the video and the witness statements were maintained by the district, and, therefore, were educational records.

The district was unable to provide access to the records without also providing personally identifiable information about another student.  FERPA provides that when education records contain information on more than one student, the parent may inspect, review, or obtain information related only to the specific information about his or her own child unless the information about the other student or students cannot be segregated and redacted without destroying its meaning.  In the letter, the Department of Education cited the following example.

“For example, parents of both John and Michael would have a right to inspect and review the following information in a witness statement maintained by their school district because it is directly related to both students: ‘John grabbed Michael's backpack and hit him over the head with it.’  Further, in this example, before allowing Michael's parents to inspect and review the statement, the district must also redact any information about John (or any other student) that is not directly related to Michael, such as: ‘John also punched Steven in the stomach and took his gloves.’”

Letter to Wachter (Dep. Of Ed. 2017). Applying these principles to the request at hand, the letter advised the school to provide the requesting party with the witness statements, so long as the district redacted the statements to the maximum extent possible without destroying the meaning of the information. 

In regards to the surveillance video, the department noted that the school was unable to blur the faces of the individuals in the video without expensive software.  Further, the Department noted that the video was unlikely to be segregated without destroying its meaning.  In light of this, the Department advised the school to allow the parents to view the video in its entirety.

Viewing Videos vs Requesting Copies

FERPA is a federal law, and it provides parents with the right to review but not necessarily to receive copies of education records.  However, under Nebraska state law, schools must provide copies of student records if parents request them and pay reasonable copying fees.  Neb. Rev. Stat. 79-2,104.   In Letter to Wachter, FPCO clarified that if a parent is entitled to review records under FERPA, the school can also provide copies to the parent: “It would not violate FERPA for the District non-consensually to disclose to an eligible student or his or her parents copies of education records that the eligible student or his or her parents otherwise would have the right to inspect and review under FERPA.”  In Nebraska, that means that parents who request copies of videos that are education records of their student get those copies, even if other students are depicted in the video.

Conclusion

Under FERPA, schools have an obligation to maintain the confidentiality of educational records.  When a parent or eligible student requests a record, and that record contains information related to more than one student, FERPA requires that the school redact or segregate the information to the maximum extent possible.  However, if the information cannot be segregated or redacted without destroying its meaning, it can be provided.  If you have any questions about your obligations under FERPA, or anything else, we recommend you contact your school attorney, or call Steve, Karen, Bobby, or Tim.

Extracurricular Activities for Students in Alternative Placements

The Nebraska Department of Education’s Office of Special Education has recently re-emphasized that students with disabilities should not be placed on shortened school days unless the student’s IEP team has determined that a shortened day is required to address the student’s unique disability-related needs.  The same is true any time a student is considered for an atypical placement – whether that be an alternative school, out-of-district or homebound placement.  While IEP teams in Nebraska typically do a good job  of considering a student’s academic needs in these more restrictive placements, teams sometimes overlook the need for these students to be well informed about upcoming events and extra-curricular activities.

The Obligation

Section 504 and Title II prohibit discrimination on the basis of disability.  School districts have an obligation to ensure that no person is excluded from participation in, be denied the benefits of, be treated differently from others, or otherwise be discriminated against in any program or activity.  This obligation can impose affirmative duties on school districts to reduce or eliminate barriers to participation.

In Kanawha County (WV) Public Schools, 112 LRP 7430 (OCR 2011), the Office for Civil Rights advised the school district that they had failed to meet their obligations under Section 504 and Title II.  OCR determined that the district discriminated against a disabled student receiving homebound instruction by failing to provide timely notice of various extra-curricular events the student’s class was taking part in.  Specifically, the district failed to inform the student about opportunities to take Senior Pictures, participate in school trips, order yearbooks, or participate in graduation events.  In response to this lapse, the district was required to develop policies and procedures to ensure that all homebound instruction students were provided with appropriate notice about upcoming opportunities to participate.

Conclusion

Students in a more restrictive placement are still members of your school community.  Effective, timely communication about events, opportunities, and activities is not only legally required, but is best for our kids.  If you have any questions about your school’s obligations under Section 504, or anything else, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Litigation Update: Title IX Cases Related to Transgender Students Are Not Just Going Away

A little less than a year ago, President Trump rescinded protections for transgender students that had allowed them to use bathrooms corresponding with their gender identity.  Without the federal guidance, the United States Supreme Court vacated the case that it was set to hear addressing the rights of transgender students under Title IX, sending the case back to the 4th Circuit for further consideration.  Most school administrators, eager to avoid being placed into the middle of the nation’s culture wars, hoped that they could safely avoid the thorny issue of Title IX’s protections for transgender students.  However, the issue has continued to be litigated in the federal courts.  As of January 10, 2018 the National School Boards Association identified at least 15 pending cases in which schools were involved in litigation over the rights of transgender students.   Recent decisions in two of those pending cases show how carefully school administrators must track the law in order to avoid legal liability.

School Pays $800,000 Settlement to Transgender Student in Wisconsin

The school board in Kenosha, Wisconsin was sued by a student, Ash Whitaker, after it refused to permit his access to the boys' locker room and restrooms because he is a biological female who identifies as male. Whitaker successfully obtained a preliminary injunction that granted the facilities access he was seeking while his litigation was pending; the decision of the district court in favor of the student was affirmed by the Seventh Circuit Court of Appeals in one of the most important decisions to date on the rights of transgender students under Title IX and the 14th Amendment's Equal Protection Clause.

After the injunction was granted, the student graduated.  The focus of the case changed from what the school was required to do for him going forward to whether the school was liable for money damages because of the discrimination that had already occurred.

On January 9, the Kenosha Board of Education voted to settle Witaker’s claim for $800,000 settlement voted on by the school board this week. The majority of the settlement -- $650,000 -- will reportedly cover Whitaker's attorneys' fees and costs.

The school emphasized in its public statements that this settlement was not an admission of liability for discrimination but a strategy to avoid the costs of ongoing litigation. However, that is not how advocates for the rights of transgender students will interpret this decision.  

Parents’ Request for Injunction Preventing Accomodation of Transgender Students Denied in Illinois.

Administrators frequently ask if parents of gender-typical students can sue if they are concerned about their students being exposed to a transgender student in locker rooms or bathrooms.  A school district in Illinois is defending exactly that sort of lawsuit after the school district had to enter into a resolution agreement with the Office for Civil Rights that permitted a transgender student to access the girls’ locker room.

A parent group called "Students and Parents for Privacy" sued the district, arguing that its agreement to permit a transgender girl to use the girls' locker room violated biologically female students' constitutional right to privacy and constituted Title IX sex discrimination (and we see the irony that both sides believe Title IX supports their decisions).  The parent group asked the district court to enter a preliminary injunction prohibiting the school from giving the transgender student access to the girls’ locker room.   

Last week, the district court denied the request for injunction.  The district court wrote that the federal courts are bound to follow the position that "federal protections against sex discrimination are substantially broader than based on only on genitalia and chromosomes."

Moreover, the court reasoned, the association is not entitled to a preliminary injunction because they will suffer no irreparable harm by the fact that the high school will continue to operate under a policy that permits transgender students to use facilities according to their gender identity. Any student who fears their privacy would be impaired by encountering a transgender student in the bathroom or locker room simply has to access existing and available single-user facilities. That these facilities might be more remotely located did not constitute serious irreparable harm in the court's view.  It is interesting that this is the reasoning the district court used, since the premise of the original OCR complaint that began all this trouble for the school was an argument that it would cause the transgender student irreparable injury if that student were forced to use a single-user facility rather than the girls’ locker room and girls’ bathroom.  

Conclusion.  School administrators, particularly Title IX Coordinators, must be aware of a wide variety of legal issues, including the those related to students with gender identity issues.  In their annual Title IX webinar, attorneys from KSB will update school administrators on the legal status of transgender students, as well as other Title IX issues on the radar.  That webinar is scheduled for Tuesday, January 30th from 9:00 a.m. CST to noon.  School districts within participating ESUs can attend this webinar at no additional cost to their district; schools who are not members of participating ESUs can contact us directly to register for the session.  Regardless of whether you plan to participate in the webinar on January 30th, you should contact Karen, Steve, Bobby or Tim or your school attorney if you have questions about students with gender identity issues or anything else related to Title IX.

Three Important Deadlines Coming Early in 2018!

Everyone is now back to school for second semester, and 2018 is fully upon us (although we’ll still be writing “2017” on our checks until at least March).  We want to welcome you to 2018 with a list of three sets of deadlines that should be on every school’s calendar early this semester:

Deadline Extended for Providing Employees their “Health Care W2.”

The IRS has announced a 30-day extension for the deadline employers have to provide form 1095-C to their employees. The deadline has been extended from January 31, 2018 to March 2, 2018.  Unlike the prior year’s extensions, this delay does not extend the due date for filing forms 1094-C and 1095-C with the IRS.  The complete text of Notice 2018-06 from the IRS is here.

New PPACA Employer Deadlines:

March 2, 2018 – forms 1095-B and 1095-C must be provided to employees by this date.

February 28, 2018 – last day for 2017 paper filing with the IRS.

April 2, 2018 – last day for 2017 electronic filing with the IRS.

We provided detailed information about the completion of 1094-C and 1095-C by Nebraska schools at a workshop in December of 2017.  If you would like to purchase a copy of the workshop please contact Shari Russell (shari@ksbschoollaw.com).  If you have no idea what any of this means, please pass it along to your business official.

Negotiations Deadline is February 8. 

The Nebraska Industrial Relations Act sets a February 8 deadline for boards of education and the teacher’s union to reach agreement on the terms and conditions of employment for the 2018-19 school year. We have other blog posts here and here that explain the negotiations timelines in more detail.  If you are a KSB client and you believe that you will not reach an agreement, please let us know immediately.  If you are not a KSB client and you are not settled or close to being settled, you should contact your attorney soon to assess your options and obligations under the Act. 

Superintendent Pay Transparency Act Notices Must Be Posted As Contracts Roll Over. 

The last deadline which superintendents and school board members should check is contained in the Superintendent Pay Transparency Act.  Any action on the superintendent’s contract – including automatic renewals – must comply with the posting requirements of the Act.  That means if the board is negotiating a new salary package with the superintendent at the January meeting, the district should post the proposed contract at least 3 days before the January meeting (if it is not already posted).  Then, within 2 days after the meeting the district must post a new copy of the contract which includes changes approved by the board. The district should also post a new Schedule D.  These requirements are explained in more detail here.  The board may need to comply with the Act multiple times if there are changes made to the superintendent’s contract in separate meetings. For example, the board may extend or renew the Superintendent’s contract in January and set the Superintendent’s salary in March. In that case, the board would have to comply with the Act both times.  With all the attention that will be focused on administrator pay in light of the early bills being proposed in the Unicameral, we think it is crucial that districts scrupulously comply with the Pay Transparency Act so that the education community cannot be accused of refusing to share information about the cost of school administration. 

Conclusion. 

If you feel like the pace of keeping up with all of your legal obligations gets more frenetic each year, you are not alone.  School districts have a myriad of obligations to juggle and even one dropped ball can lead to negative legal consequences. If you have questions about PPACA, negotiations or the Superintendent Pay Transparency Act, please feel free to contact Karen, Steve, Bobby, or Tim; or your school district's attorney.