New Methods and New Information from the Office of Civil Rights

The Office of Civil Rights (OCR) has recently released its new case processing manual and the Civil Rights Data Collection (CRDC) from 2015-2016.  Both documents have some interesting information we think school districts should know about.

Discipline for Students with Disabilities

According to the newly released data, students with disabilities make up 12% of the enrolled student population, but comprise 26% of the 2.7 million students who were suspended out of school during the 2015-2016 school year.  Students with disabilities were also over-represented in students who were “police-involved” at 28%. Many parent-side advocacy groups are claiming that this data indicates that students with disabilities are being unfairly discriminated against in the imposition of discipline.  Although we question that premise, the key question that districts must always ask when suspending a student with a disability for 10 days or more is: is the student’s conduct a result of his or her disability? This question can change the context surrounding student misconduct from one of discipline to one of placement under the student’s Individual Education Plan (IEP).  

Placement and the Least Restrictive Environment

The Individuals with Disabilities Education Act, requires students with disabilities to be placed in the least restrictive environment “to the maximum extent appropriate.”  This does not necessarily mean the least restrictive environment possible. A student’s behavior can play a major role in determining whether the general education setting is the least restrictive environment that is appropriate.  We receive calls from clients all the time reporting extreme student behavior which can include throwing desks, chairs and other objects or even physically attacking staff or peers. Regardless of the causes of this kind of extreme behavior, it probably means that the student should be removed from the general education classroom.  Schools will need to work through the LRE continuum to find a placement for these students which is appropriate, which could mean that the student is in a restrictive setting within the school or is placed out of the school building or district.

Behavior Interventions

This is not to say that any behavioral issue warrants removal from the classroom, or placement into a more restrictive environment.  Sometimes, when behavior interventions are initially put in place a student’s behavior gets worse before it gets better. A district should not attempt a behavior intervention on a short-term basis and move the student to a more restrictive placement before the intervention has had time to take hold.  When determining if an intervention has been effective it’s also important to remember that the IDEA has a “stay put” provision that keeps a student in the classroom if there is a dispute as to placement.  The dispute can be resolved by an expedited hearing if the safety of other students is at risk in the current placement.

Office of Civil Rights Case Processing Manual

The other development out of the OCR is the release of a new Case Processing Manual under the Trump Administration.  The new case processing procedures push back on frequent filers of civil rights complaints in an effort to decrease the burden on OCR’s resources.  As evidence the rule was needed, the DOE stated three individuals had filed 41% of the the complaints in 2016, and 23% of the complaints in 2017. Hundreds of cases have been dismissed since March of this year under the case processing procedure.  The focus of many of the mass filings was website accessibility for people with disabilities.

Take-Aways

The discipline imposed on students with disabilities can raise questions under the IDEA.  In some cases, the district should discipline the student as it would a general education student, but the district should assess whether the student’s conduct is related to the student’s disability.  If the conduct is disability-related a change in placement may be appropriate, if behavioral interventions are ineffective.

As for the new processing manual, we have seen a substantial shift in how OCR handles claims since the Trump Administration began.  The new case manual shows that those changes are sticking and the OCR is operating differently than in previous administrations.

The Intersection of Religion and Schools at Graduation: Not a Stop Sign, but Proceed with Caution

As graduation approaches, questions about how prayer and religion intersect with school ceremonies inevitably come up.  Some questions have fairly clear answers.

• Can a district hold graduation in a church?  Generally, no. For example, in Doe v. Elmbrook Sch. Dist., a federal district court clearly stated that this practice would be impermissible.  You don’t want to be the Nebraska test case.

• Can a district invite members of the clergy, or direct a student or staff member to begin the graduation ceremony with a prayer?  No. The United States Supreme Court held that this practice was unlawful in Lee v. Weisman.

Unfortunately, many questions about religious expression in schools do not have clear answers. A recent case before the Court of Appeals for the Seventh Circuit is a great example of how courts analyze the questions that fall into that gray area.  In Freedom from Religion Found., Inc. v. Concord Cmty. Schools, the court closely examines a “Christmas Spectacular.” While it is not a graduation case, it does a good job laying out the tests courts use when looking at the intersection of religion and school functions.

In Concord the school district had a long standing tradition of performing a Christmas program that involved a student-performed nativity scene and several songs focused on the Christmas holiday from the traditional Christian perspective.  After receiving complaints from parents, and being sued by the Freedom from Religion Foundation due to the substance of the program, the district modified the show. At this point the case becomes a tale of two Christmas programs. The Court held that first program, which generated the initial complaints, was pretty clearly out of bounds. The program was focused on the story and birth of Jesus “to the point that it was hard to distinguish it from many Christmas Eve church services.”  The modified program, then became the fighting issue.

The court examined whether or not the district violated the First Amendment by looking for three things: endorsement of religion, coercion of the audience and students to conform to a religion, or an unlawful religious purpose.  

Endorsement

To assess whether or not an endorsement of a religion or a particular religious belief has occurred, the court looked to the “totality of the circumstances surrounding the challenged conduct from the perspective of a reasonable observer.”  To perform this analysis, the court looked at the changes to the program. The new program included new songs. “Ani Ma’amin” and “Harambee” were added to recognize and celebrate Hanukkah and Kwanzaa. The nativity scene was shortened from twenty minutes to two minutes.  Students were no longer asked and/or required to play characters in the nativity. A reading from the New Testament was taken out. Many of the Christmas songs remained, but in the context of the entire show, which included secular songs, and songs from other religions, the program was not “ratifying a religious message.”

Coercion

The coercion test was used to disqualify the two “easy” cases mentioned above.  The prayer at the beginning of a graduation in Wiseman was considered coercive due to the pressure to support or participate in the prayer and therefore to participation in the religion.  In Elmbrook, conducting a graduation in a church was considered coercive because it placed the captive audience of a school ceremony in a proselytizing environment.  In Concord, the court found that although the district had a captive audience, “there was no religious activity in which performers or audience members had to partake.”  The fact that some audience members were “reflecting on a religious hymn,” was not enough to amount to coercion of other audience members. The court made a point of saying that most of them were probably just on their cell phones anyway!

Unlawful Religious Purpose

The three stated purposes of the Christmas Spectacular were to provide cultural education to students, entertain the audience, and provide learning opportunities to performing arts students.  The court wrote, “[t]his would have been an easier case if the Christmas Spectacular had devoted a more proportionate amount of stage time to other holidays.” The court went on to state that there is no minimum number of songs required from each religion, but that the program as performed did show a clear preference toward Christmas.  The court liked the other two goals much better, because they articulated a non-religious purpose. For example, clearly there was a pedagogical purpose because students learned music, choreography, and costume design. They also had to organize props, sets, and put on the performance to a large crowd.

The plaintiffs, “concede[d] that these legitimate purposes are reasons to have a winter performance in general,” but argued that a legitimate purpose did not allow the school to perform the religious elements of the presentation.  However, the court found, “the Establishment Clause does not require schools to tailor their conduct narrowly to the stated aim. It mandates only that a religious purpose cannot be the primary motivation.” Because the court found that the religious aspects of the Christmas Spectacular were not the primary motivation for the performance, the performance as a whole was deemed to not violate the First Amendment.

Take-Aways

Since the courts have multiple tests that can be applied to a variety of situations, it’s incredibly difficult to come up with a strict set of guidelines that are guaranteed to satisfy every judge.  But there are some basic questions you can ask to do a First Amendment Assessment:

1. Is the district endorsing a specific religion?  What would an objective outsider say, without the typical pressures of community sentiment and tradition?

2. Do students and parents have a choice when it comes to participation in any religious activities?  Has the district placed a captive audience into a religious environment?

3. Is the purpose of the district’s activity to engage in religious conduct?  Or is the district focused on student learning and/or the entertainment of spectating patrons of varying religions or no religions at all?

These basic questions should point the district in the right direction when trying to determine if the district activity is appropriate, or if you are flirting with a First Amendment violation.  As always, if you have any questions on these issues don’t hesitate to contact Karen, Steve, Bobby, or Tim; or your district’s attorney.

Gimme a Break. Gimme a Break. Break Me Off a Piece of that...FMLA Leave?

If a custodian with a bad back sits down during his coffee break, can the school count that short break as FMLA leave?  As crazy as that sounds, a recent opinion letter from the Department of Labor’s Wage and Hour Division says that maybe you can.

Intermittent Leave

Qualified employees are entitled to up to 12 weeks of FMLA leave.  Under some circumstances, employees can take FMLA leave by the day rather than by the week.   An employee is only able to take FMLA leave in periods of hours or minutes when the leave is taken on an “intermittent basis” either because it is medically necessary or voluntarily agreed to by the employer:

“When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.”

29 CFR 825.205

This means that if an employer permits employees to take sick leave in 15-minute increments, then intermittent FMLA leave can be taken in 15-minute increments.  If you require sick leave to be taken in half-day increments, then intermittent FMLA leave can be taken in one-hour increments since one hour is the largest increment permitted by the regulations.

Breaks as Intermittent Leave

In a situation addressed by the recent DOL opinion letter, the employee was taking a 15-minute break every hour due to a serious health condition.  This meant that the employee was only working 6 hours out of an 8-hour shift. The Wage and Hour Division concluded that if the employee needs these breaks due to a medical condition that qualifies for “intermittent leave,” the breaks can properly be classified as unpaid breaks that the employee is taking as intermittent leave under the FMLA.  

There’s an important caveat to that: the breaks are only unpaid to the extent that the breaks are above and beyond what is normally compensated by the employer.  Assume Employee A takes three short breaks for no particular reason and is paid for those breaks, and Employee B takes four short breaks due to a serious health condition that qualifies for FMLA leave.  Employee B’s first three breaks are paid, since that is the normal practice for paid breaks by the employer. In short, the “extra” breaks would be unpaid intermittent FMLA leave.

Take-Aways

We have received questions on an increasing number of chronic, ongoing, and intermittent medical leave requests.  This new Wage and Hour Division opinion letter is a great reason to take a look at your FMLA policy as it relates to regular and irregular breaks given to hourly staff--including breaks they take without permission but with your knowledge.

FMLA leave can be tricky in the simplest of circumstances, but employers have a legal and practical reason to be sure employee leave is designated as FMLA leave when the FMLA applies. Employers also need to consider how the employee’s paid sick leave and vacation leave will be used during the FMLA leave period. If you are questioning your employment break practices and/or have any questions about how the FMLA applies to your staff, you should contact your school attorney, or call Karen, Steve, Bobby, or Tim.

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.

PPACA (“Obamacare”) Reporting: Yep, It’s Back!

Administrators, we love you, but before you read another word, forward this to your school’s or ESU’s business official(s)!  Seriously, do it now...

Reporting Workshop: Dec. 11, 2017. 

KSB is partnering with NCSA to conduct the annual Obamacare Reporting workshop again this year.  The workshop will be on December 11 from 9 to noon Central Time, and you and/or your business official(s) can attend in person at KSB, over ZOOM from your district, or by purchasing the recording of the presentation and materials to view at your convenience. 

Here’s the link to register and where you can find more information: https://www.ksbschoollaw.com/ppaca

Reporting Obligations for 2017. 

All “Applicable Large Employer” schools and ESUs in Nebraska have completed PPACA (aka “Obamacare”) reporting for the last several years.  Given the political rhetoric out there and campaign promises of repealing Obamacare, we did not think it would survive 2017.  However, Obamacare is still the law of the land—for the most part.  While various executive orders have come down and the new tax law purports to eliminate the “individual mandate,” the substance of Obamacare which applies to employers is still intact.  So, that means Obamacare reporting must be on your “to do” list this holiday season.

Schools and ESUs (other than those who self-insure) will be reporting using the 2017 versions of the 1094-C and 1095-C forms.  Here are the instructions for both forms, as well.  All of these should look familiar.  Additionally, here are the deadlines for the 2017 reporting cycle, which are also similar to past years:

January 31, 2018: 1095-C to Employees

February 28, 2018: paper filing 1094-C and 1095-C’s to IRS

April 2, 2018: electronic filing 1094-C and 1095-C’s to IRS

Because most schools and ESUs are filing electronically with the IRS, January 1 and April 2 are the important dates to calendar this year. 

One piece of homework to complete prior to reporting is to assess whether your “cash in lieu” or other “opt out arrangements” you may have will impact your reporting for 2017.  During the reporting workshop last year, Karen and Bobby covered how cash in lieu and other benefits given in exchange for declining insurance would impact your reporting and potential penalty liability.  There was transition relief available last year that is not available this year, so we recommend analyzing those issues early to ease your reporting obligations.  We will cover this in the reporting workshop, but better to start that analysis now since each district’s system is unique.

We also recommend communicating in advance with your payroll software companies to see what guidance and assistance they will be providing to help you with your PPACA reporting.  Some companies are more helpful than others, and please keep in mind that their advice does vary.  We recommend contacting them prior to attending the reporting workshop so that you will be able to form a reporting plan once you have all of the updated information for the 2017 reporting cycle.

In the meantime, if you have any questions about whether you are required to report as an “Applicable Large Employer” or about your various reporting obligations, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Refresher on the Superintendent Pay Transparency Act

This is a good time to pause and remember the requirements of the Superintendent Pay Transparency Act. The Act requires school districts and ESUs to publish both the superintendent’s/administrator’s contract and a "reasonable estimates and descriptions of all current and future costs"; Most districts and ESUs have just added another tab or link on the homepage of their website under which the contract and a copy of “Schedule D” from the state auditor can be found.

We have received many questions on what school districts should do to comply with the Act as part of the renewal process. When the board is preparing to renew a contract the board must:

1. Post the proposed contract and related costs 3 days before the board meeting at which the contract will be approved or amended;
2. Post the contract and the related costs within 2 days after the meeting at which the contract is approved;
3. Publish an updated Schedule D any time the “future costs” change; and
4. Provide a copy of the contract and any subsequent amendments to the NDE by August 1 st following the adoption or amendment of the contract.

Any new contract, changes to an existing contract, or automatic renewals should comply with the posting requirements discussed above. For example, if the board and superintendent agree to amend the superintendent's contract in January of 2016, the district should post the contract 3 days before the meeting, update the posting on the website within 2 days after the meeting to include the changes approved by the board, and send a copy to the NDE before August 1 once the contract is final. The board should also post a new Schedule D.

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.

Finally, we have been getting many questions regarding how to post the contract, Schedule D, and notice for the board meetings. First, be sure to put the consideration of changes to the superintendent’s contract on the board agenda.  Complying with the Act does not substitute for following the Open Meetings Act. As for posting the contract and the Schedule D, there is no right or wrong answer.  Here is what the Act says:

Electronic publication on the web site of the school district or educational service unit shall satisfy the requirement of this subsection if such electronic publication is prominently displayed and allows public access to the entire proposed contract or amendment [and the Schedule D].

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

Get Ready to Get Exhausted: Grievance Procedures Should be Followed Before Going to Court

Most, if not all, school districts and ESUs have a grievance procedure which allows staff to allege violations of the negotiated agreement or board policy relating to their employment.  Absent a formal grievance procedure, certificated staff are guaranteed the ability to challenge an administrative decision through the chain of command, and/or to present their version of the facts surrounding a disciplinary action at a formal due process hearing by Neb. Rev. Stat. § 79-826.  The issue that has arisen due to a recent Nebraska Supreme Court case is this: does a staff member have to use the district’s grievance procedure, and exhaust the appeal process within it, before filing a lawsuit?  The Nebraska Supreme Court has indicated that when the grievance procedure is a term of the contract, the answer is “yes.”

New Case Law

In Armstrong v. Clarkson College, 297 Neb. 595 (2017), a nursing student sued the college for breach of contract.  The student was put on “administrative probation” and removed from classes based on misconduct at a conference, and the college removed her from her program.  While the case discussed the student’s claim in the context of the college’s grievance procedure as applied to the student, we believe the reasoning relating to grievance procedures will be applied to public schools and ESUs. 

While the case contains other issues, the primary focus for public schools and ESUs is the Court’s analysis of whether the student was required to use the college’s grievance procedure before filing a lawsuit.  Ultimately, the Court adopted Colorado’s stance that in the application of a grievance procedure, any ambiguity as to whether an individual must exhaust the grievance procedure is to be resolved in favor of using the grievance procedure as the exclusive remedy for challenging an administrative action.  If an individual subject to a grievance procedure could simply bypass it even though they could have used it to pursue the relief they wanted, it would render grievance procedures toothless. 

The Court elaborated on the reasons why the rule exists, saying that “the exhaustion requirement gives the school the opportunity to correct its own potential mistakes though its grievance procedure.”  Courts generally do not want individuals to run to the courthouse and file a lawsuit when another remedy exists.  It also pointed out that teachers subject to grievance procedures still have the ability to bypass the grievance procedures if they can show that filing a grievance would be futile, the grievance procedure offers an inadequate remedy, or the individual was prevented from using the grievance procedure.  Finally, the Court stated that grievance procedures should be clear on applicability as much as possible, such as whether they are available to former employees.

Language that Could be Proposed During Negotiation

In light of the Court’s ruling, in order to bypass a district’s or ESU’s grievance procedures and head directly to court, a staff member would need to get explicit language into a negotiated agreement or policy that showed the grievance procedure was optional.

The NSEA is advising all of its negotiators to push for including one of the following provisions, depending upon where the grievance procedure is located:

Where a grievance procedure appears in board policy only: the parties agree that use of the board’s grievance policy is discretionary and is not a condition to presenting a claim for violation or variance of the Negotiated Agreement or an individual employment contract before a court of competent jurisdiction.

Where a grievance procedure exists within the negotiated agreement: the parties agree that use of the grievance procedure herein is discretionary and is not a condition to presenting a claim for violation or variance of this agreement or an individual employment contract before a court of competent jurisdiction.

Where a grievance procedure exists in both board policy and within the negotiated agreement: the parties agree that use of the grievance procedure in board policy and herein is discretionary and is not a condition to presenting a claim for violation or variance of this agreement or an individual employment contract before a court of competent jurisdiction.

Just Say “No"

We recommend saying “no” to any request to make your grievance procedure discretionary.  As Armstrong makes clear, the NSEA is attempting to remove the grievance procedure exhaustion requirement.  By softening the district’s grievance procedure requirement and turning it into an optional method for resolving conflict between staff and the administration, rather than a required one, districts and ESUs would needlessly allow themselves to be pulled into court for any perceived violation of a contract or policy. 

While some grievances may have merit, it is the Armstrong Court’s clear position that the district or ESU should be permitted the opportunity to resolve these violations internally, rather than pay for unnecessary litigation.  Grieving parties can still go to court once they have filed a grievance and appealed it as necessary according to board policy.

Conclusion

We think there are local political reasons to cite at the bargaining table when addressing this issue.  Frivolous lawsuits will always exist, but by directing certificated staff to use internal grievance procedures before they are permitted to file in court the district will save valuable school resources, namely time and money.  Should changes such as the ones discussed above be proposed during your negotiations with certificated staff we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Ignorance is Bliss: Board Members and Student Records

The old adage “ignorance is bliss” does not usually gain much traction in schools (or law firms) that work to disseminate knowledge and information.  We regularly field questions from schools about how much access board members can have to student records.  The Family Educational Rights and Protections Act, commonly called FERPA, governs the analysis of these questions.  At times, board members feel that access to student information is helpful to serve students.  However, according to FERPA and the agencies that enforce it, the question should really come down to whether the access is necessary to serve students.  In this context, the answer we often give board members is that ignorance really is bliss (so long as your definition of bliss is compliance with the law and receiving federal funds).  In most cases, even the most well intentioned board members lack the requisite educational interest required to access student records under FERPA lawfully.

FERPA Restrictions

FERPA is a federal law that, among other things, protects the confidentiality of student records.  With limited exceptions, FERPA requires signed and dated written consent from a parent or eligible student before a school can disclose personally identifiable information from the student’s “education records.”  34 CFR § 99.30.  Education records include any records that directly relate to a student and are maintained by an educational agency or institution.  Id.  Personally identifiable information, or PII, includes information which can alone, or in combination, allow a reasonable person in the school community to identify the student with reasonable certainty.  34 CFR § 99.3.  

Practically speaking, a student’s name on a grade report, down list, or discipline record would be protected PII from an education record.  Other information included in a record, such as the student’s grade level, student ID number, address, or date of birth may also meet the definition of protected PII.  For a board member to access student records that include PII, written consent is required unless the disclosure falls under one of the narrow exceptions.  In this context, the most relevant exception would be the “school official exception.”

School Official Exception

FERPA provides several limited exceptions to the requirement that written consent be provided before a school can disclose PII from an education record.  Under the school official exception, disclosure is permissible to other school officials so long as the school official is acting with legitimate educational interests.  For purposes of FERPA, a board member is a school official. See U.S. Department of Education FERPA General Guidance for Students.  To be eligible for the school official exception, a board member can only access education records containing PII for which there is a legitimate educational interest.

On its face, this may seem like a low threshold.  However, in practice this standard is usually stringent.  Each school is required to provide parents an annual notification of rights under FERPA.  This notification should inform parents how the school defines “school official” and clearly articulate what the school considers a legitimate educational interest.  See Letter to Heiligenthal, 16 FAB 10 (FPCO 2012).  If you are a policy subscriber, you will soon be receiving updates that will bring your notice in compliance with this standard.  The Department of Education advises that, generally, a school official “has a legitimate education interest if the official needs to review an education record in order to fulfill his or her professional responsibility.”  See, FERPA General Guidance for Students (emphasis added).  This standard has the approval of the Department of Education and appropriately protects student records from unnecessary exposure.  The forthcoming update will more clearly refer to this standard in our model notification.

When applied, this standard usually excludes board members from being eligible for the school official exception.  Given the usual responsibilities of board members, in most instances it is unlikely that the member would need to review an education record in order to fulfill his or her professional responsibility. 

An example of when a board member would have a legitimate educational interest to access student records would be when a student appeals a disciplinary action.  In this context, a board member, in order to fulfill his or her professional responsibility, would most likely need access to specific education records related to behavior and discipline.  However, this educational interest probably would not extend to all of the student’s records.

An example of when a board member would lack a legitimate educational interest to access student records would be when a board member wishes to access grade reports that include names or other PII.  It is difficult to think of a situation where a board member would need to access such records to fulfill his or her responsibilities.

Nebraska State Law

Interestingly, Nebraska state law in section 79-2,104 does not authorize board members to access any education records.  However, the statute goes on to say that it does not preclude or prohibit the disclosure of student records so long as it would be authorized pursuant to FERPA. 

Conclusion

As noted above, it is relatively rare for a school board member to have the requisite educational interest to access student records under the school official exception.  Without meeting this exception, the parent or eligible student who the record refers to must expressly consent to disclosure in writing.  While these restrictions on access can be frustrating for board members, and understandably so, the Department of Education has advised that school districts are best insulated from complaints when they limit their definition of legitimate educational interest.  Board members, when it comes to student records, a good rule of thumb is that ignorance is bliss.  When it comes to your legal obligations under FERPA, or any other issue, a good rule of thumb is to bring your questions to your school attorney, or call Karen, Steve, Bobby, or Tim.

Understanding the Most Recent Title IX Update

When Donald Trump took office, he made it clear that his administration would be making changes to Title IX enforcement.  On Friday, September 22nd, the US Department of Education announced that it was withdrawing two major Title IX guidance documents which had been issued by the Obama administration.  In a ten-page Q&A on Campus Sexual Misconduct (found here), the US DOE discusses its intentions to engage in further rule-making processes on Title IX enforcement.  It also provided information about how OCR will assess and evaluate Title IX compliance in the meantime. To the extent that the new guidance is incomplete, the Department has returned to the standards articulated in the 2001 Revised Sexual Harassment Guidance (found here).  While this update will discuss some of the most important features, all school officials should read the new guidance for themselves.

Schools’ Responsibility under Title IX 

Your general obligations under Title IX have not changed.  “An institution that receives federal funds must ensure that no student suffers a deprivation of her or his access to educational opportunities on the basis of sex.”  In order to fulfill this obligation, “where the school knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately.”

How OCR Will Assess Compliance

One of the main criticisms of the 2011 Dear Colleague letter, was that it over protected the rights of individuals making accusations about Title IX violations while failing to provide basic protections to those accused of sexual misconduct.  The new guidance is clear that a school must offer the same rights, opportunities, services, and evidentiary access to both the person alleging a violation as well as the person who is being accused.  The new guidance also reminds schools that they “must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.” 

In determining if a school has met its obligation, the OCR will first look to ensure that the school has adopted and published grievance procedures “that provide for a prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct.”  Thus, the focus will be on ensuring that the response to an incident the school knew or should have known of was prompt and equitable.

Prompt and Equitable Investigation

The most substantial changes brought about by the new guidance are the determinative elements of a “prompt and equitable investigation.” 

“OCR has identified a number of elements in evaluating whether a school’s grievance procedures are prompt and equitable, including whether the school (i) provides notice of the school’s grievance procedures . . . (ii) applies the grievance procedures to complaints filed by students or on their behalf alleging sexual misconduct . . . (iii) ensures and adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence; (iv) designates and follows a reasonably prompt time frame for major stages of the complaint process; (v) notifies the parties of the outcome of the complaint; and (vi) provides assurance that the school will take steps to prevent reoccurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate.”

2017 Q&A on Campus Sexual Misconduct (emphasis added).  These elements provide the basis for an OCR review of a school’s investigation.  Significantly, these elements diverge from the standards set forth in the 2011 Dear Colleague in several ways. 

In terms of ensuring an “equitable” investigation, schools now have a choice about how they will determine whether sexual misconduct has occurred.  Institutions may use either the “preponderance of the evidence” standard or a “clear and convincing evidence” standard.  Think of it as the difference between 51% and something closer to 75% in terms of the evidentiary burden to prove a Title IX violation occurred.  This is a significant development.  Given the politicized reactions to allegations of sexual assault and harassment, the choice of which standard to use in evaluating these allegations will become important.  We believe boards of education are the proper entities to decide which standard their school will adopt. KSB Complete Policy Service subscribers will be receiving an updated policy to address this and other changes from the new guidance.

Similarly, the Department has rejected the 2011 Dear Colleague letter’s standard of a 60-day response period for a “prompt” investigation.  Instead, “OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”  This means the board’s policy should have clear timelines, but those timelines are not limited to 60 days.

Finally, the new guidance is clear that the Department wants to ensure that “any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.”   The only exception is that a school may choose to allow appeals from the responding party, only.  A school could choose to allow no appeals from its decisions, an appeal for only the responding party (the accused), or an appeal option for both parties.  However, if both parties are allowed to appeal, the appeal process must be the same.

Conclusion

In many ways, the new guidance from the Department is a rejection of the policies and standards set forth and adhered to by the previous administration.  Overall, the document demonstrates that the Office of Civil Rights seeks to ensure that schools put forth good faith efforts “to conduct fair, impartial investigations in a timely manner designed to provide all parties with resolution.”  In doing so, reviews will look to make sure that all parties were afforded equal rights and protection.  The guidance also signals an increased emphasis on due process rights for the accused.  Until the Department completes its intended rule-making process, this document will serve as the best understanding of the new administration’s interpretation and enforcement of Title IX. 

On January 30, 2018 ESUCC and participating ESUs will sponsor a Title IX training by the attorneys at KSB.  This will fulfill your Title IX Coordinator’s annual training requirements.  During that workshop, we will review this new guidance along with other recent Title IX developments.  In the meantime, if you have any questions or concerns about your school’s obligations, or how the new guidance will influence your investigation processes, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Incentives for Voluntary Termination of Employment

LB 512 went into effect on September 1, 2017. Among other things, it sets up duties for school districts that offer Golf Subsides voluntary termination incentives to certificated employees, and phases out the ability of the board to exclude the expense of such programs from the levy limit.

The Statutes

Neb. Rev. Stat. § 79-8,142 establishes the duties of the district when creating an incentive for voluntary termination for teachers, and when paying voluntary termination incentives.  The main take-aways are:

1. $35,000 maximum on incentives.
2. Time limit on payment: five years from the certificated teacher’s voluntary termination, or before the certificated teacher becomes eligible for Medicare; whichever is earlier.
3. The district must demonstrate to the satisfaction of the State Board of Education that the payment of the incentive will result in net savings in salary and benefit costs over a five-year period.
4. Any voluntary termination incentives cannot be included in any collective-bargaining agreement.
5. All voluntary termination incentives paid out must be reported on the annual financial report to NDE.

Neb. Rev. Stat. § 77-3442 is the home of the property tax levy, the maximum levy limit, and the exceptions to that limit.  Prior to LB 512, the statute excluded payments made as an incentive for voluntary termination from the levy limit.  LB 512 has removed this exclusion.  Districts are required to pay for incentives for voluntary termination within their levy limit.  Districts that hit their limit and need to raise additional funds to make incentive for voluntary termination payments can do so outside the levy limit if the incentive is contained in a collective bargaining agreement that was in place prior to September 1, 2017.  The district can only partially pay for the incentives this way, and that exclusion decreases annually in a stair-step fashion to phase out the exclusion by 2020. 

If a district is at the maximum levy limit, the district can pay up to 75% of the incentives it committed to in a collective bargaining agreement prior to September 1, 2017 with funds excluded from the levy limit.  The levy exclusion to pay pre-existing incentives drops to 50% in 2018-19, 25% in 2019-2020, and is phased out at the start of the 2020-2021 school year. 

How this Affects Schools

If your district currently offers an incentive for voluntary termination, and pays for it within the levy limit, you shouldn’t have a change in how you pay for the incentives.  However, you are no longer able to include those incentives in a collective bargaining agreement, and all incentives for voluntary termination for teachers going forward are subject to the constraints of Neb. Rev. Stat. § 79-8,142.

If your district is currently paying off voluntary termination incentives that were agreed to prior to September 1, 2017 you may be able to partially pay for those incentives with funds excluded from your levy limit.  This will depend on your current levy amount and whether or not the incentives were included in your collective bargaining agreement. 

The new statutes have added a fairly complex layer to how early retirement incentive programs are funded.  Any voluntary termination incentives currently on the books will need to be reworked to meet the new statutory requirements, and any existing payment commitments will need to be funded appropriately.  If you have any questions about these obligations, or any other issue, you should contact your district’s attorney or call Karen, Steve, Bobby, or Tim.

Gather ‘round and Take a Knee: Praying You Don’t Get Caught Violating the First Amendment

After watching the Husker defense in their first two games, Husker fans are praying that Bob Diaco and crew figures out how to successfully turn the Blackshirts’ season around.  However, it is clear that the Ninth Circuit Court of Appeals would disapprove of that reaction.  The west coast is the birthplace of the Colin Kaepernick National Anthem kneel, and now its federal appeals court just released an opinion on a very common sight on Friday nights: a high school football coach leading a prayer on the field after each game.  The court ruled that the constitution did not protect the coach’s prayer.  In fact, according to the concurring opinion, the nature of the coach’s prayer itself likely constituted a violation of the Establishment Clause of the First Amendment by the school district.

Facts of the Case 

In Kennedy v. Bremerton Sch. Dist., No. 16-35801, 2017 U.S. App. LEXIS 16106 (9th Cir. Aug. 23, 2017), Joseph Kennedy, an assistant high-school football coach, alleged that the Bremerton School District infringed upon his First Amendment rights when the school instructed him to cease his on-field prayer after games and then fired him when he refused to comply.  Kennedy went to court seeking an injunction that would compel the school to allow him to continue his public prayer on the field after games.  As in most First Amendment cases, the facts are important in understanding how the court came to its decision.

In 2008, Bremerton School District, a Washington school near Seattle, hired Kennedy as a football coach.  His contract set forth several provisions concerning his status as a role model to athletes, and in it he agreed that he would be “constantly observed by others” while acting as a coach.

From the beginning of his time as a coach, Kennedy would participate in the team’s locker room prayer before the game, and then pray again on the field after the game.  His post-game prayer was done soon after the end of the game, on the field, at the 50 yard line, and while he was wearing apparel marked with the Bremerton High School logo.  For the first few games, he kneeled to pray on the field alone.  However, soon into his first season with the team, a number of players asked to join him on the field for the prayer.  Eventually, the tradition grew to include many members of both his own and the opposing teams, and Kennedy would lead a short prayer and give a motivational speech to the participants.  According to Kennedy, his religion compelled this practice of praying on the field because his “prayer lifts up the players and recognizes their hard work and sportsmanship during the game.”  He also stated that his religious beliefs required the prayer to be done on the field of play. 

Until 2015, the Kennedy’s practice was unknown to the district’s administration, and for about seven years Kennedy led these prayers undisturbed.  However, after a visiting team’s staff mentioned the post-game prayers to a BSD administrator, the District took action.  The school notified Kennedy that his leading of prayers presented problematic issues under the Establishment Clause, and that while his actions were well intentioned he could no longer suggest, encourage, or supervise student religious activity while acting in his capacity as a coach.  The Superintendent further counseled Kennedy that, “if students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer . . . as endorsement of that activity.” Finally, the district stressed to Kennedy that he was free to engage in religious activity, including prayer, which would not interfere with his job responsibilities.  To this end, the district offered him various accommodations that would allow him either to pray privately by himself, or to pray on the field after players, staff, and spectators left the area.

For a few weeks, Kennedy utilized the latter accommodation and adhered to the district’s policy.  However, after consulting with an attorney Kennedy decided that he had a constitutional right to continue his practice of saying a prayer on the field immediately after games. Media attention followed this decision, and when he prayed after the next game multiple people, including spectators, went onto the field to join him in prayer. 

After this incident, the district reiterated its position to Kennedy and insisted that he cease the practice.  The district received notice from a Satanist religion that they viewed the post-game field as a public forum open to religious ceremonies for the Satanist religion.  Once the Satanists told the district they, too, intended to engage in their speech within the “forum,” the district took further steps to keep all spectators from entering the field.  Leaving the forum open to Kennedy would have meant opening the forum to all speakers.  When Kennedy continued his practice in an insubordinate manner, the District placed him on leave and eventually terminated his employment.  After Kennedy’s departure, the student-athletes did not continue the post-game prayer.

The Decision

The Ninth Circuit determined that Kennedy did not have a First Amendment right to continue praying on the field after games, and that the District was not wrong for firing him after he continued to do so.  Central to this decision was the court’s observation that “Kennedy spoke as a public employee, not as a private citizen.”  This determination was based in part on the fact that Kennedy’s conduct took place immediately after the game, when he still had a duty to supervise and lead the players.  He was thus acting within the scope of his employment and responsibilities.  Further, the fact that Kennedy insisted that this prayer be in the view of student’s and spectators, rather than in private in accordance with the accommodations offered by the district, indicated to the court that the speech at issue was directed towards the students and public.

Take-Aways

As this decision demonstrates, First Amendment issues are often complex questions that mix law with specific, outcome determinative facts.  This decision also demonstrates that there are many instances in which the First Amendment will not protect a public employee’s demonstrable speech.  For school districts, the concurring opinion also notes that allowing an employee to engage in conduct such as Kennedy’s can raise issues with the Establishment Clause.  While the Ninth Circuit decision is not binding on Nebraska courts, schools in Nebraska should be aware of their obligations and their employee’s rights.  If you have any questions about these obligations or rights, or any other issue, you should contact your district’s attorney or call Karen, Steve, Bobby, or Tim.

KSB Husker Football Predictions Are In

Karen’s Prediction: 

While I try to embrace positivity in all areas of my life, the Huskers have broken my heart too many times for me to give in to the preseason hype.  My burning questions this year is, where, exactly, do we think we will generate points?  Tanner Lee wasn't all that impressive at Tulane, and his mother must be having preseason nightmares about the offensive line play down the stretch last year. (Anyone else remember Utter being manhandled by Iowa? IOWA, people?!) Three of our top four receivers are gone. Our top running back is gone and his back-ups have demonstrated a remarkable lack of durability in the past.  This means we must rely on brilliant play-calling by Danny Langsdorf to generate offensive yardage, which basically means we are doomed.  The one bright spot of the season is that we do get a bit of eye candy in the form of Bob Diaco.  But even if Diaco coaches as good as he looks, a first year defensive coordinator cannot save this season.  It hurts me to say it, but I predict that we'll go 6-6 in the regular season.  Thanks to a lower tier bowl will be able to claim a winning season by defeating weak opponent in December. 

Steve’s Prediction:   

The Huskers still play football?  You sure about that, Clark?  I thought their team moved to Youngstown a few seasons back.  But if you say so . . .  The Huskers take a break from smoking pot, driving drunk, and their other unlawful ways to squeak out victories against the Red Wolves, Huskies, and Scarlet Knights.  The Huskers will disappoint against the Ducks, Fighting Illini, Boilermakers, Wildcats, Golden Gophers, and Hawkeyes.  They will wish they were still under the influence after being manhandled by the Badgers, Buckeyes, and Nittany Lions.  It's a 3-9 season for your Nebraska Cornhuskers.  The only bowl they'll see is the one at the end of their pipe.  - Esteban, The Real Eye Candy (trademark pending).

Bobby's Prediction:

The Tanner Lee hype train is legit, OL play improves, and Diaco's defense plays fairly well. Still, the Huskers are a bit too thin at a few positions to take on their full slate in 2017. The crossover schedule is too much to win the Big Ten West, but the outlook is good as we're competitive in every game. I want to drink the KoolAid and say 10-2, but I'm going with 8-4 regular season and a bowl win for 9-4.

Tim’s Prediction: 

Lee has a decent year.  Running game is middle of the road.  Defense and O-Line improve, but aren’t quite there.  Lee cut his interceptions in half in his two years at Tulane, and I think he keeps that trend going as he matures at QB. Without a clear starting RB coming out of camp, running game looks to be an inconsistent committee.  Diaco is a heck of a coach, and I’m all-in on his defense, but it’ll take another year for it to be firing on all cylinders.  7-6.

Shari's Prediction:  

Growing up in Nebraska I have always been a Husker fan.  Then I married a Notre Dame fan and have become a follower of them as well.  Bob Diaco joining the Huskers after previously coaching at Notre Dame gave me something to look at, I mean gave my husband and I something to talk about.  While I hope the Huskers have a great season, after listening to all the chatter I am not that hopeful.  I will plan the parties, dress my kids in cute Husker clothes for game day and hope for the best.  My prediction - 9-3.  

We also wanted to remind you that KSB is having their tailgate party on Saturday, September 2nd.  We hope you all will join us.  Please remember to RSVP by clicking here.