Federal Procurement: The Hoops are Still There, but at Least They’re Getting Bigger

Late last month, the Office of Management and Budget (OMB) released a memo that raises the thresholds for purchases made using federal funds.  The 2017-18 school year was when most school districts had to begin complying with updated purchasing thresholds under the Education Department General Administrative Regulations (EDGAR).   These regulations mandated that purchases made using federal funds adhere to a tiered procurement program. At that time the thresholds were:

Micro-Purchases: Less than $3,500

Small Purchases: $3,500 to $150,000

Large Purchases: Over $150,000

Why the Tiers Matter

The distinction between the tiers is significant.  Micro-Purchases can be made using simplified acquisition procedures.  This means a school does not need competitive quotes, so long as the cost is reasonable.  To the extent practicable districts are required to distribute such purchases amongst qualified suppliers.  Other than those fairly loose restrictions, the purchases can be made with minimal hoop-jumping.

To make Small Purchases, schools are required to get price or rate quotes in advance from a reasonable number of qualified sources.  To make Large Purchases, schools are required to formally advertise for sealed bids and conduct a contract and price analysis on the bidded goods or project.  

New Tiers Announced for 2018

The thresholds for each tier have changed, while the restrictions and requirements of each tier have remained the same.  According to the June 2018 memo from OMB, the new thresholds will be:

Micro-Purchases: Less than $10,000

Small Purchases: $10,000 to $250,000

Large Purchases: Over $250,000

These changes typically take some time to roll out to the Federal Acquisition Regulations (FAR), and are generally not effective until implemented.  However, the recent OMB memorandum stated it is granting an exception to all recipients of federal funds, and the new purchasing thresholds in advance of revisions to the FAR and Uniform Guidance.

How This Helps

The increased thresholds will significantly reduce the paperwork required for school districts that no longer have to meet the strict requirements of sealed bidding for purchases less than $250,000.  This will be particularly relevant to school meal programs. School districts that hire a food service management company and have a meal program that exceeds $150,000 will now fall into the Small Purchase tier and the less-restrictive bidding requirements.  Similarly, all of the food purchases made by in-house school nutrition programs will now be able to take advantage of the higher thresholds for the purchase of food items that the kitchen uses to make students’ meals.

These changes are at the federal level and do not change a school district’s obligations under state law for bidding for construction, remodeling, repair, or site improvement.  The threshold for such projects to be bid remains at $100,000.

What Do School Districts Need to Do?

All schools should consider changing their procurement policies immediately to take advantage of the new thresholds as the new school year begins.  If you are a KSB policy service subscriber you can click below to download the updated policies. If you are not a KSB policy service subscriber, you should check your board’s procurement policy and double check to see if you have adopted individual policies or administrative regulations that govern purchasing for your nutrition program, your special education program as well as Title I.  If that is the case, your board will need to amend each of those policies or procedures separately.

It will take time for these regulation changes to flow out from federal agencies such as the USDA, which oversees the National School Lunch Program.  Auditing tools and documentation may still reflect the lower thresholds as the 2018-2019 school year begins. If you run into an audit issue, or have any questions about procurement using federal funds you should contact your school district’s attorney or call Karen, Steve, Bobby, Tim, or Coady.

If you are a KSB Policy Service subscriber, you can link to updated copies of your procurement policies below.  

The ABCs of SROs: Legal Considerations for 2018-19

School safety and security has been in the news and at the forefront of administrative and board discussions this year.  Nationally, 42% of schools now have an SRO in the building. Whether your school district has an SRO, is in the process of adding one, or may add one in the future, there are unique legal issues to consider that affect how SROs function alongside the school staff. Even if you don’t have an SRO and don’t think you ever will, many of these issues are important to consider whenever you have an interaction with law enforcement.

Employing vs. Contracting

It is important to determine the type of relationship your school wants with an SRO.  The most common scenario is a contract with a branch of local law enforcement to dedicate an officer to the school building.  The other option is to hire a former officer to be an employee of the school. As you can imagine, the dynamic of the relationship will change the way the SRO interacts with the school.  For example, only a member of law enforcement can carry a firearm in a school. On the other hand, a former officer who is a school employee can have greater access to records and student information.

Record Sharing and FERPA

SROs do not have open access to the school district’s education records.  When an administrator denies SRO access to records, it can feel like the school district is impeding a law enforcement investigation.  Yet in many cases this is the correct and lawful response.  Anything that is identified as an education record of a student can only be disclosed with consent from the parents, or if the disclosure falls into a FERPA exception.   An emergency that threatens the health and safety of students is a FERPA exception often used when a district shares information and records with an SRO.   In the event of such an emergency, schools may disclose education records, including 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, warrant, or court order that requires the disclosure.

It is important to know what is an education record, and equally important to know what is NOT an education record.  FERPA excludes pictures and videos created and maintained by law enforcement from education records. If your district has an SRO 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 pursuant to your FERPA policy and how it defines “maintain.”  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.

Reporting Criminal Activity of Students Under Neb. Rev. Stat. 79-293

LB 1081 passed this legislative session.  Among other things it amended § 79-262 and § 79-293 to require that school districts collaborate with their local county attorney in order to determine what student conduct should be reported to law enforcement as a criminal violation.  The new law requires annual communication with the county attorney, which means the offenses that are required reports to law enforcement will likely vary from county to county and as new county attorneys take office.

The amended portion of 79-262 now reads:

On or before August 1 of each year, all school boards shall annually review in collaboration with the county attorney of the county in which the principal office of the school district is located the rules and standards concerning student conduct adopted by the school board and the provisions of section 79-267 to define conduct which the principal or designee is required to report to law enforcement under section 79-293.

79-293 now reads:

Nebraska Criminal Code violation; principal or principal's designee; notify law enforcement authorities; immunity.

(1) The principal of a school or the principal's designee shall notify as soon as possible the appropriate law enforcement authorities, of the county or city in which the school is located, of any act of the student as provided in subsection (1) of section 79-262 which the principal or designee knows or suspects is a violation of the Nebraska Criminal Code.

(2) The principal, the principal's designee, or any other school employee reporting an alleged violation of the Nebraska Criminal Code shall not be civilly or criminally liable as a result of any report authorized by this section unless (a) such report was false and the person making such report knew or should have known it was false or (b) the report was made with negligent disregard for the truth or falsity of the report.

At a minimum school districts should be sending a letter to the county attorney for the county where the district’s main office resides to request collaboration on reportable criminal offenses prior to August 1.  This collaboration model is similar to the annual policy review and collaboration districts are already required to do for excessive absenteeism.

Once a school district and county attorney have established what offenses are required reports to law enforcement, that list and/or guidance should be shared with your SRO so the officer is aware that some minor offenses may not be reported.  For instance, your county attorney may not want minor theft or shoving matches reported to law enforcement, even though technically both are violations of the Nebraska Criminal Code.  When a district shares the required reportable offenses with its SRO, the school district can collaborate with law enforcement, not report every minor infraction, and still have a lawful practice due to communication with the county attorney.

We should note that some county attorneys have taken the position that they still want every crime reported.  There is some confusion regarding exactly what the changes to 79-262 and 79-293 were intended to do.  As we understand it, the law before the change meant every suspected violation of Nebraska’s Criminal Code had to be reported.  Now, county attorneys can tell schools which crimes they do or do not want to be reported.  In addition to sending a letter that documents the district's efforts at collaboration, the district should arrange a phone call or meeting with your county attorney to discuss their interpretation of the change.  One great idea we've heard is to get all of the superintendents in your county together with the county attorney at the same time. This will ease the burden on the county attorney and hopefully create a more predictable system for reporting.  If you have an SRO, that would be a great person to invite to this meeting as well.

SRO Agreements

As noted above, your district should clearly establish things like the type of relationship (contract vs. employee) you have with your SRO, how records will be shared, and other aspects of the relationship in a contract or memorandum of understanding between the school district and the local police department or SRO.  Clear procedures and protocols can avoid territorial disputes, confusion, and friction when law enforcement wants to access school records such as school district video, or when the school district wishes to view the video from a body-worn camera.

Outside groups, including the ACLU, have begun making public records requests that relate to school district SROs.  As law enforcement presence grows in public schools, so too will those outside of the school scrutinizing the protection of student rights and other responsibilities schools have under FERPA and similar privacy laws.  In other words, now is the time to audit your SRO setup or begin the conversation the right way if your district may consider an SRO.

Districts should make sure that administrators and staff are aware of the provisions of any SRO agreement, and that they are carefully followed.  If you have any questions about how to properly share records between a school district and an SRO, or if you need an agreement between the school district and SRO drafted, you should contact your school district’s attorney or call Karen, Steve, Bobby, or Tim.

New Drug Helps Nurses Combat Opioid Overdoses in Schools

As the United States grapples with the opioid epidemic, fatal overdoses continue to plague both urban and rural communities.  Naloxone, commonly referred to by the trade name Narcan, is a medication that helps treat overdoses.  According to the American Medical Association and the Surgeon General of the United States, the administration of Naloxone to an individual not under the influence of opioids is safe, and the medication has no recreational value.  As a result, lawmakers and public health organizations in Nebraska and across the country have been working to increase access to Naloxone.  Some school districts and their nurses have inquired about the drug, wondering if it would be lawful and prudent to stock it so that it may be administered in the event of an overdose.  Under Nebraska law, it is lawful to obtain and administer Naloxone in order to assist a person overdosing on opioids, and it can be obtained at pharmacies throughout the state without an individualized prescription.

Neb. Rev. Stat. § 28-470

In 2015, Senator Adam Morfeld introduced a bill to increase access to Naloxone and provide protection for those who administer the drug to an individual in need.  After stumbling over a few procedural hurdles, the Naloxone provisions were added as an amendment to a larger bill that addressed the criminal drug statutes and the use of cannabidiol.  The legislation was approved by the governor in May, 2015, and the Unicameral  made minor amendments in subsequent sessions.

Codified as Neb. Rev. Stat. § 28-470, the statute provides that:

“(1) A health professional . . . may prescribe, administer, or dispense naloxone to . . .

1. A person who is apparently experiencing or likely to experience an opioid-related overdose; or

2. A family member, friend, or other person in a position to assist a person who is apparently experiencing or who is likely to experience an opioid-related overdose. . . .”

The law allows for Naloxone to be obtained by a “person in a position to assist a person who is apparently experiencing or who is likely to experience an opioid related overdose.”  So long as a school nurse or similarly situated individual meets this requirement, a health professional, such as a pharmacist, may dispense Naloxone to that individual.

Liability Concerns

The law provides some protections to an individual in administering Naloxone.  It reads:

“A . . . person who is in a position to assist a person who is apparently experiencing or who is likely to experience an opioid-related overdose . . . is not subject to actions under the Uniform Credentialing Act, administrative action, or criminal prosecution if the person, acting in good faith, obtains naloxone from a health professional . . . and administers the naloxone . . . to a person who is apparently experiencing an opioid-related overdose.”

While the law protects a person from professional, administrative, and criminal liability, it does not provide protection against civil liability.  Under the statute, only peace officers, law enforcement officers, and emergency responders are provided immunity from civil claims.

Despite the lack of immunity, the risk of civil liability for administering Naloxone remains low.  According to the medical experts, there  is no harm if the drug is administered to an individual who appears to be, but is not actually, suffering from an opioid overdose.  Administering the medication to an individual who is under the influence of opioids blocks the interaction between the opioids and the brain, and in many cases restores respiratory function.  It should be noted that this can send an opioid addict into withdrawal, and emergency medical services should always be contacted when Naloxone is administered.

Conclusion

It is easy to understand why many school districts and school nurses are interested in obtaining Naloxone.  In most cases, the recently passed legislation in Nebraska should allow for just that.  Under a similar statute in Massachusetts, over half the state’s school districts began stocking Naloxone.

We believe that schools may lawfully stock Naloxone in Nebraska.  However, it is important that districts ensure they lawfully obtain the medication and that they take steps to mitigate potential liability.  If you have any questions about this, or any other issue, we encourage you to contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Matt Russell & The Robinson Rundown

Matt Russell, ladies and gentlemen

First things first.  We are excited to let you know that Matt Russell has joined the KSB team as Office Coordinator.  One of the clear themes we heard from clients in our survey this past spring was that you like a REAL PERSON to answer the office phone.  Matt will help cover phone calls and will try to help Shari wrangle our unruly attorneys. Matt will also lend a hand in driving us all around the state so that (a) we can be more responsive to client communication when we are on the road and (b) Karen doesn’t kill anyone when she checks Twitter while she is driving.

If you are saying to yourself, “Hmmmm, isn’t Russell Shari’s last name?” you are correct!  Matt and Shari are married and have two kiddos, Kelsey and Jax, and the world’s cutest dog, Dozer.

In his free time, Matt enjoys rooting for Notre Dame, flirting with Shari on the daily, and schooling Bobby in darts every morning.

And now...on to the Robinson case.  

Very few teacher dismissal cases get appealed in Nebraska, and even fewer make the appellate journey all the way to the Nebraska Supreme Court.  That means when we do have the chance to receive the court’s insight into the dismissal process, school board members and administrators alike should take note.  Recently, in Robinson v. Morrill Cty. Sch. Dist., the court held that the teacher received all notice and process required by law and agreed with the school board’s finding that the teacher was incompetent, neglectful of his duty, unprofessional, and insubordinate.  KSB represented the administration at the school board level, and we’ve watched the case closely on appeal.  We encourage every administrator to read the opinion in full (available here), as doing so is an excellent professional development opportunity to better understand the process and law used in personnel matters. 

Key definitions

The court reviewed and defined several of the grounds that constitute “just cause” sufficient to support the cancellation of a teacher’s contract, including the following:

• Incompetency includes “demonstrated deficiencies or shortcomings in knowledge of subject matter or teaching or administrative skills.”  The court noted that incompetency “is not measured in a vacuum or against a standard of perfection but, instead, must be measured against the standard required of others performing the same or similar duties.”  Examples of incompetency from the teacher in this case included refusing to attend meetings, refusing to leave his office after being directed to stop secluding himself, and refusing to work collaboratively with staff and administration on curriculum and testing issues.

• Neglect of Duty requires evidence of something more than occasional neglect.  “Evidence that a particular duty was not competently performed on certain occasions, or evidence of an occasional neglect of some duty or performance, in itself, does not ordinarily establish incompetency or neglect of duty sufficient to constitute just cause for termination.”  In this case, the court found that significant discrepancies related to the teacher’s curriculum orders that had to be rectified by others, lying about curriculum orders, and exchanging inappropriate and unprofessional e-mails with a district curriculum vender constituted neglect of duty and incompetency. 

• Unprofessional conduct is conduct directly related to the fitness of the employee to act in his or her professional capacity.

• Insubordination is the “absence of subordination or submission; resistance to or defiance of authority; refusal to obey orders; refractoriness, [or] disobedience.”

Understanding the meaning of these terms and the examples provided by the court will help guide administrators when they are deciding whether to cancel the employment of a poorly performing teacher.

The teacher also alleged several procedural violations including improper notice of the board meeting, improper use of a hearing officer, the failure of the board to be impartial, the board’s use of conduct from a previous contract year.  The court rejected all of the teacher’s claims as explained in more detail below.

Notice

The school board historically used two methods to provide notice for its meetings.  The court found that about 60% of the time the board published notice in the local newspaper, and about 40% of the time it posted notice at multiple locations within the district.  For the teacher’s hearing, the board posted notice at three locations: two grocery stores and the community center.  The board used this same method to notice its meetings at least 21 times in the previous two years.  The court held that the board gave “reasonable advance publicized notice . . . by a method designated by [the board]” as required by the Open Meetings Act.  Even though the designated method of notice may not have been formally set forth in the board’s meeting minutes, the Open Meetings Act requirements were satisfied because the board had established a “customary and consistent method” of notifying the public of its meetings. 

Hearing Officer

The school board hired an attorney to act as a “hearing officer” and to preside over the teacher’s personnel hearing.  The teacher argued that Bridgeport could not hire a “hearing officer” because state law only allows Class IV and V school districts to do so.  The court rejected that argument, noting that the statute applicable to Class IV and V school districts authorizes the hearing officer to conduct the hearing, determine the facts of the case, and make a recommendation to the board.  But in this case, the record was clear that while the attorney would assist the board with the hearing by presiding over the hearing, ruling on objections, and receiving evidence to be considered by the board, all factual determinations and the ultimate decision regarding the cancellation of the teacher’s employment remained with the board.  The court noted that state law specifically authorizes a school board to hire legal counsel when it deems it “necessary or advisable,” and it would not adopt a rule that would prohibit school boards from retaining an attorney to assist with a personnel hearing.

Impartial Decision-maker

Districts often run into issues of potential bias.  News spreads quickly within a community, and school board members often have close ties to the district through their children who are students, or relatives that work for the school.  The court is clear that these ties do not by themselves show bias.  Decisionmakers, such as school board members, are presumed to be impartial under the law.  Board members in this case had prior knowledge of the plaintiff’s misconduct.  The plaintiff had requested a meeting with the board to discuss his complaints against the administration.  This meeting alone was not considered enough to bias the school board.  Additionally, each board member was questioned on the record by the hearing officer and stated that he or she would base a decision “solely on the evidence received as a part of this hearing and exclude anything [he or she] may have heard or read about this matter prior to the hearing.”

Evidence from Prior School Years 

The teacher repeatedly objected to any evidence of misconduct that occurred prior to the current contract year.  The court found this argument to be without merit, holding that “a school board can consider all relevant conduct when determining whether to cancel a contract.”  In this case, the incidents that occurred in prior school years were relevant because they were directly related to the teacher’s conduct thereafter and his deteriorating job performance. 

Take Aways

A personnel hearing before the school board is multiple things at once.  It is an open meeting of an elected public body subject to the notice requirements and other requirements of the Open Meetings Act.  It is also the venue for certificated staff to exercise their due process rights that are established by state law.  This means there are multiple legal hoops the district must jump through to conduct the hearing properly.  Your school district’s attorney can help find a hearing officer and properly conduct the hearing, but the administration must take steps to properly notice the meeting and avoid disclosing personnel details to the board that could affect a board member’s ability to be impartial.  If you have a staff member that engages in any of the misconduct defined above, you should document that misconduct immediately.  For any questions on specific cases of misconduct you should contact your school district’s attorney or call Karen, Steve, Bobby, or Tim.

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.