STAYING AHEAD OF THE JUULING “EPIDEMIC”

Juuling. Recently, many clients have called us about a new vaping phenomenon called “Juuling.” E-cigs and vape pens have been around for a while, but there has been a recent upswing in student use of vapor products since the introduction of a new device called a “Juul.”   Juul is the name-brand for a vaping device that heats up a cartridge containing oil to create a vapor.  It has a tech-inspired design that resembles a USB flash drive and is small enough to be concealed in a closed fist, backpack, pocket, sock, or undergarment.  It charges in a USB port, so it is easy to convince unsuspecting teachers that it is in fact a USB device. You may have students in your school charging their vaping device in the middle of class!

In addition to looking innocuous, the vapor a Juul emits, like other e-cigs, is hard to detect since it does not smell like cigarette smoke. Students can smoke from it and blow the vapors into a backpack or sweater and the teacher is none the wiser.   One pack of oil for a Juul contains the nicotine equivalent to 1-pack of cigarettes or 200 cigarette puffs. One hit off a Juul can produce quite a buzz, which is also a huge appeal for students and creates a new generation of nicotine-addicted youth.

Law enforcement representatives, and particular drug recognition experts, have also informed us that Juuls have been used to ingest cannabis products (Liquid THC, Hash Oil, and Synthetic Marijuana (K2), opium (Fentanyl), bath salts, flakka     (combination of Heroin and Methamphetamine or Crack) and hallucinogens and psychedelics (DMT).

According to a recent TIME article, Juul now controls 72 percent of the e-cigarette market in the US.  This epidemic is so serious that, although the industry is not heavily regulated, the FDA has stepped in to determine whether Juul deliberately targets minors as consumers.  Does that sound familiar to those of you who saw cigarette ads in the Joe Camel and Marlboro Cowboy era? The FDA has increasingly expressed alarm over the prevalence of vaping among youths in high school and even middle school, which its commissioner, Dr. Scott Gottlieb, said had reached “epidemic proportions.”

Nebraska Law.  Nebraska criminal law changed in response to vaping a few years back.  Under Neb. Rev. Stat. § 28-1418, it is unlawful for a minor under 18 to use tobacco or “alternative nicotine products” in any form whatsoever.  In addition to nicotine, there are hundreds of videos on the internet that instruct students how to change the oil in e-cigarettes and Juuls to add THC and other marijuana derivatives, which would obviously be illegal under Nebraska law, as well.

Despite those prohibitions in the criminal code, there are two sticking points for schools.  First, there is no way to know for sure what substance is contained in the device without testing the oil. Second, the Student Discipline Act (SDA) does not list “tobacco” or even “nicotine” use in the grounds for long-term suspension and expulsion.  With that said, the SDA allows schools to impose those consequences for violations of Nebraska criminal law. However, there is no way for schools to test the liquid efficiently or effectively to know if the substance is unlawful. Law enforcement officers generally do not have a field test for nicotine.

Some city ordinances go further than the state law in prohibiting students from possessing vapor devices.  For example, Grand Island City Ordinance § 20-20 flatly prohibits anyone under the age of 18 from possessing any vapor product.  However, the SDA only allows schools to punish violations of Nebraska criminal law.

In short, unless you can verify that someone 17 or younger has nicotine in his or her vape at school, or any student has marijuana derivatives or other unlawful substances in their vape, you may not have grounds to impose disciplinary consequences.  Possession of a completely empty Juul or a device with fruity water, for example, is perfectly lawful in most circumstances if it doesn’t contain an unlawful substance.

Solution to the problem.  Because of these wrinkles in the law, the best way to combat the new Juuling craze is through school policy and education.  The SDA allows boards of education to impose other “school rules” not specifically contained in the SDA. We think every board’s student discipline policy should contain a “school rule” prohibiting any vape product or cartridge from campus, no matter what’s in it.  That way, if a student has any vape pen or other alternative product, you can impose extracurricular consequences and short-term suspensions for one violation of those “school rules.”  Any “repeated violation of school rules” can then be used to impose a more serious consequence, like expulsion. Of course, this would not limit your ability to expel a student if he or she did have unlawful substances in their vape the first time they got caught.

You could also consider prohibiting students from possessing  certain types of items that look like common vaping products and Juuls, in particular flash drives. Flash drives are cheap, and you can probably get hundreds of them for very little cost with the school’s logo on them. If you prohibited  the possession of a non-school-issued flash drive, you could impose disciplinary consequences on a student who brought their own and/or confiscate it to see if it is a Juul.

Ultimately, we believe the best approach is to educate students and parents to avoid having to impose discipline.  Some schools recently have sent letters home to families alerting them to Juuling and telling them not to bring any vape to school because it violates school policy.  Other schools have collaborated with their SROs and other law enforcement agencies to communicate with parents. These are great ideas. If your school does not know the laws and health concerns regarding vaping and Juuling, it is unlikely students and parents know.  You should educate families on these issues, as well as your staff. If you need help with changing your school’s policies and educating your students and staff, please contact your school’s legal counsel or any member of the KSB School Law team.

We’re on a Title IX Collision Course In the Supreme Court

We think it’s finally happening.  Bold prediction: the issue of Title IX protection for transgender students will make it to the Supreme Court sooner rather than later.  Practically speaking, more students are identifying as transgender. Anecdotally, several more Nebraska schools have contacted us this year seeking guidance on accommodating transgender students and the legal and policy considerations.  At this point, every school should be thinking about how to respond to requests by transgender students and their families in terms of “when,” and not “if” the school receives such a request. Legally speaking, the Trump Administration is becoming much more aggressive in seeking to undo the Obama Administration’s added protections for transgender individuals, while the courts are going the opposite direction.  Combine all that together, and we think we’re headed for a showdown in D.C. Here’s our evidence:

1. Transgender students are winning in court.  

The most recent court decisions are almost uniformly siding with the transgender students. Three examples are Adams v. School Board; J.A.W. v. Evansville Vanderburgh School Corporation; and M.A.B. v. Board of Education.  These decisions grant transgender students access to facilities consistent with gender identity, among other things.  They are based on Title IX, but just as importantly the courts are also using the Equal Protection Clause (EPC) as their basis for siding with transgender students.  Use of the EPC could signal how the issue ultimately will be decided, in much the same way the same-sex marriage litigation eventually led to the Supreme Court protecting the rights of same-sex couples to get married nationwide under the EPC.

At the same time transgender students are winning, students and parents filing lawsuits seeking protections from sharing facilities with transgender students are losing.  A recent example is Doe v. Boyertown Area Sch. Dist.

2. The Trump Administration is redefining “sex” under Title IX.  

Last week, the New York Times announced that the Trump Administration is proposing to define “sex” under Title IX to mean only biological sex and not gender identity.  According to the Times report, the change would define “sex” to mean “a person's status as male or female based on immutable biological traits identifiable by or before birth." Also, "The sex listed on a person's birth certificate, as originally issued, shall constitute definitive proof of a person's sex unless rebutted by reliable genetic evidence."  If the various federal agencies charged with enforcing sex discrimination laws take this position, it will complete the 180 degree turn away from Obama-era guidance documents.

3. The Trump DOJ just argued to the U.S. Supreme Court that protections on the basis of “sex” do not include an individual’s “gender identity.”

This is not surprising, but the timing is important.  If you’ve been following this issue all along, you’ll remember that much of the discussion and interpretation of Title IX comes from cases decided under Title VII.  Title VII is the law which prohibits employers from discriminating against employees on the basis of sex (including gender norms), religion, race, etc. About a year ago, the Trump Department of Justice (DOJ) released a memo stating that Title VII’s protection from discrimination on the basis of “sex...does not prohibit discrimination on based on gender identity per se.”  Yesterday, the DOJ argued to the Supreme Court in a Title VII case that the prohibition against sex discrimination does not protect gender identity.  This is obviously consistent with the new Trump Administration positions on Title IX.

4. There will be new Title IX regulations soon, probably.

A few weeks ago, the Times also reported that the U.S. Departments of Education and Justice will be issuing new Title IX regulations related to investigating complaints of sex-based discrimination and harassment.  Among other things reported, the new regulations would increase protections for accused students and reduce liability for universities (and presumably K-12 schools). The new regulations similarly propose to reverse Obama-era guidance, such as the requirement to investigate Title IX complaints even if the conduct occurred off-campus and not at school activities.  Maybe they will also contain new definitions of “sex” or explicitly exclude “gender identity”....

What does it all mean?  We see fireworks on the horizon, and there may be a race to the Supreme Court between families seeking protections under existing law/regulations and the Trump Administration seeking to change the regulations and argue for “administrative deference” from the courts.  Practically speaking, file these things away in the “probably going to require policy changes again this year” category. We’ll be tracking all of these issues and, if necessary, will provide our KSB Policy Service subscribers with updates this summer (after the long Unicameral session) or sooner if necessary.  

Despite all of this flux, our position has never changed.  We continue to advise clients to take two practical steps regarding transgender students: (1) avoid making sweeping policy or procedure decisions until the law becomes more clear; and (2) work collaboratively with transgender students and their families to see if there is a way to accommodate the student’s requests without triggering either a federal lawsuit or a strong political reaction. Title IX is an individualized protection law.  Treating all transgender students the same (such as by a sweeping policy declaration) would be no different than assuming all sexual abuse victims need exactly the same support. Every student in our state deserves a safe and supportive learning environment, but the way to achieve that may be different based on the unique needs of individual students. We continue have schools succeed in navigating these tricky issues by meeting with students and families to talk through the difficult issues on an individual basis.  We believe that, versus a standard policy response, is more consistent with Title IX in the first place.

If you have any questions about these or other Title IX compliance areas, you should contact your school district’s attorney, or contact Karen, Steve, Bobby, Coady, or Mandy.

Ch-ch-ch-changes!

Tim Malm is leaving KSB School Law at the end of the month. He is joining Main Street Theatres as the Director of Strategic Development. We’re sure the painting of The Avengers he hangs in his office (not a joke) will be right at home. We are sorry to say goodbye to Tim and we wish him every success as he and his family move back to Omaha. We’ll still follow him on Twitter for nerdy tech updates.

Tim's replacement will be joining us on October 8th. Mandy Gruhlkey is currently a Deputy County Attorney at the Sarpy County Attorney's Office in Papillion. Before going to law school Mandy obtained her Bachelor’s degree in Secondary Education from Buena Vista University, and she did her student teaching at Ralston High School. We are excited to have Mandy get started, and we know you will enjoy working with her.

In other KSB news, Coady Pruett and his wife, Elizabeth, are celebrating the September 24th arrival of twin babies:

Hudson Michael Pruett; 6lbs, 11 oz; 20.25” long

Lucy Margaret Pruett; 6 lbs, 15 oz; 19.75” long

It Remains Illegal to Arrest Teenage Girls for Being Teenage Girls

Answer this question without thinking: can administrators ask SROs or law enforcement officers to arrest students just to scare them if the students won’t stop being mean to each other?  

We don’t think so, either, and a recent case confirmed what most of us already know.

In a case before the U.S. Court of Appeals for the Ninth Circuit, the judges addressed the question of whether or not the arrest of seven middle school girls was reasonable.  The students had a history of conflict and fighting, both in and out of school (KSB commentary: when don’t middle schoolers have conflict!?).

On the day of their arrest, no fight took place.  The girls were seated in a school office discussing how to end the “ongoing feud.”  The assistant principal then asked the school resource officer to speak to the students.  When the SRO began talking to the students, he decided they were being disrespectful. The students whispered and snickered while he was talking (again, middle schoolers…).  He told the students he was not playing around and that this was a good opportunity to prove a point and make the girls “mature faster.” He called another deputy for backup and proceeded to arrest all seven students.  Several of the students were taken in police vehicles to the county sheriff’s department.

New Jersey v. T.L.O.

Three of the students arrested that day brought a suit against the deputies, the county, the administrators, and the school district.  To determine whether the arrests were reasonable, the court examined the conduct of the officers under the standard established in New Jersey v. T.L.O. In T.L.O. a school administrator searched a student’s purse due to suspicion that the student was smoking in the bathroom.  The purse contained evidence of smoking cigarettes, as well as marijuana paraphernalia, money, and a list of people “that owed her money.”  In T.L.O., Supreme Court found this search to be reasonable as “the school setting requires some easing of the restrictions to which searched by public authorities are ordinarily subject.” New Jersey v. T.L.O., 469 U.S. 325 (1985).  The Court established a two part test:  

1. Is the search justified at its inception?

2. Is the search reasonable in its scope?

The test is fairly straightforward.  As long as the search is likely to turn up evidence of the wrongful act, it’s probably justified.  A search of student’s bag when drug possession is reported at school is generally justified at its inception.  A pat down of a student for theft of a basketball is not, because you can’t very easily hide a basketball in your clothes.  Similarly, a search of a student’s bag when drug possession is suspected is generally reasonable in its scope. A backpack is a likely place to put your drugs.  Continuing the search to the student’s phone when drug possession is suspected is generally unreasonable in scope, because you can’t hide the drugs in the phone.  Courts have applied this reasonableness test to seizures--and an arrest is a seizure--as well as searches. Courts have also extended this test to actions of law enforcement officers on school grounds that are undertaken in concert with school officials. See Cason v. Cook, 810 F.2d 188 (8th Cir. 1987).  

In this case the actions of the SRO and the other deputy did not meet either prong of the test. The seizure was not reasonable at its inception. The SRO had general allegations of arguing and fighting, and no specific cause to arrest the students.  He was also recorded before and during the arrests and stated, “I don’t care who is at fault, who did what...to me it is the same, same ticket, same pair of handcuffs.”  The seizure was also not reasonable in its scope. The court was clear in its condemnation of the deputy’s actions:

The arrest of a middle schooler, however, cannot be justified as a scare tactic, a lesson in maturity, or a chastisement for perceived disrespect.  

Liability

This case focuses on the reasonableness of the SROs actions.  Administrators should continue to be mindful of the limits on their power to search students and their possessions. Administrators should also be aware that they are given significant latitude by the court when conducting a reasonable search of student’s property.  The conduct of the SRO in this case was brazenly unreasonable, and a clear case of an attempt to scare students straight that went too far. The case now returns to the trial court for a hearing on damages. The three plaintiffs are seeking $10 million in compensatory damages and $10 million in punitive damages.

Interestingly, the court in this case determined that at least some of the individuals involved may be personally liable for the damages caused to the girls, because they clearly violated known rights of the students under the Fourth Amendment.  At this point it seems likely that the insurance companies for the various entities may negotiate a paid settlement outside of court. However, the court of public opinion is already coming down pretty strongly on this one, serving as a good reminder that students don’t shed their rights at the schoolhouse gate.  If any information on the progression of this becomes available, we will be sure to follow up with another post.

TGIF! (Time to Get ready for an Interesting post about the FMLA)

The federal Department of Labor has issued a new opinion letter regarding continuation of benefits and other terms and conditions of employment during FMLA leave.  The employer in question in the letter has a “no fault” attendance policy, where staff members were given points if they were tardy or absent, and at 18 points were terminated.  Points would reset after 12 months of “active service.”

The case posed these questions to the DOL:

• Can the employer pause the active service requirement when an employee is gone on FMLA leave?  

• If so, can the employer keep the negative attendance points on an employee’s record longer than 12 months if they pause the “active service” when the employees aren’t working?  

The DOL Said Yes to Both

This is significant to schools and ESUs, because the question of whether and to what extent employee benefits continue through FMLA leave is very common.  In general, employers are not allowed to interfere, restrain, or deny FMLA leave that has been duly earned, including by disfavoring employees who have taken FMLA leave.  As you know, benefits like health insurance but not salary must be continued through an FMLA leave. However, employers are not required to issue benefits to employees that have taken FMLA leave that are not otherwise available to staff outside of those required to be provided specifically by the FMLA.

In this particular case, employees who were not working, for whatever reason, were not earning time toward the removal of attendance points.  So, as long as the point system applied to all types of leave in the same way by this employer, it was permitted under the FMLA.

If you have an objective attendance system, this case is directly applicable.  Even if you don’t it provides a way to think through extended times employees are not working for things like vacation, worker’s compensation, and during the summer.  FMLA leave should not receive worse or better treatment than other leaves for benefits related to things like attendance requirements.

New Forms!

In addition to the opinion letter, the Wage and Hour Division of the DOL has bestowed new FMLA forms on us all.  These forms will appear identical to the old forms at first glance, but if you look in the top right corner you will see that these new forms have an updated expiration date.  Links to the new DOL forms are below, and have also been updated in our Policy Service “forms” page.

2018 FMLA Forms

• 2018 WH-380-E Certification of Health Care Provider

• 2018 WH-380-F Certification of Health Care Provider - Family Illness

• 2018 WH-381 Notice of Eligibility and Rights & Responsibilities

• 2018 WH-382 Designation Notice

• 2018 WH 384 Certification of Qualifying Exigency for Military Family Leave

• 2018 WH 385 Certification for Serious Injury or Illness of a Current Servicemember for Military Family Leave

• 2018 WH 385V Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave

Passwords 101: Basic Data Protection in Schools

We have been on the road this month talking to students, staff, and parents about digital citizenship.  There's a lot to talk about! Every day, we see new cases that involve cyberbullying, online threats, and sexting.  However, it isn’t just students who need to learn the basics of online safety. As protectors of student data, school districts have unique obligations when it comes to keeping student data safe.  One of those obligations is to investigate data breaches when they occur, and notify affected families if the data has been or will be used for an unauthorized purpose.

If schools become aware of a possible security breach, Nebraska law requires them to conduct a good faith, reasonable, and prompt investigation to determine the likelihood that personal information about a Nebraska resident was misused.  If misuse has actually occurred or is likely to occur in the future, the school district must also report itself to the Attorney General's office. Data breaches can stem from malicious attacks carried out by hackers and cyber-terrorist groups.  More often, however, they often start with human error and lax security protocols.

PASSWORD BASICS

The biggest password myth we regularly see is that a good password is complicated and hard to remember.  This is not the case for a number of reasons.  Passwords that are hard to remember often get written down on a post-it.  This is bad, and leads to obvious security issues. An effective password could simply be the lyrics to a song or the name of a place, so long as enough characters are used.  Adding numbers and special characters to that can help.

EXAMPLE:

• f23tg@59p is a complex password that is REALLY hard to remember.   

• Mycountrytisofthee is a simple password that is easy to remember.

• Myc0untryti$0fth33 is a complex password this is still fairly easy to remember.  

If you look at the last example, it has the same amount of numbers and special characters as the "complex" password, but since they’re incorporated into a song lyric, the special characters and numbers are easier to remember, and the final password is longer!  The final password is also not connected to an old address, pet name, child's birthday, or any other piece of personal information that a social hacker could obtain from looking at an employee’s Facebook or Instagram page.

All school district staff -- administrators, teachers and other staff -- should adopt secure password practices.  Make it easy to remember, but hard to guess (stay away from personal info), don't share it, and change it often.

KSB Predictions for Season 1 Under Frost

KAREN’S PREDICTION:

As much as I want to drink the Scott Frost kool-aid, I just can’t choke down the full serving being offered this year.  Nebraska’s 2017 results were, well, not good.  That’s being generous. Giving up 50 points in three straight games at the end of the season wasn’t just “not good”; it was awful. So while I am glad we’ve made a coaching upgrade, it’s tough for me to believe we’ll be back to the glory days in 2018.  And has ANYONE looked at our schedule this season?!?  Nine of our twelve opponents played in a bowl last season (and in case you don’t remember because you drank your way through bowl season, we did NOT go bowling). Road games at Michigan, Wisconsin, Northwestern, Ohio State and Iowa?  Yikes. And Michigan State, Minnesota and even Colorado at home aren’t going to be a cakewalk.  Ouch. I want to believe. But I just can’t. 6-6.

STEVE’S PREDICTION:   

Scott Frost brings law and order – not to mention confidence and conditioning – back to the Nebraska Cornhuskers.   The Huskers will roll against Akron, Colorado, Troy, and Illinois. They’ll make a solid showing and win against Purdue, Minnesota, and Iowa.  They’ll squeak out a victory at Northwestern, but end up with losses after valiant efforts at Ohio State and against Michigan State. They will get curb stomped by Wisconsin and Michigan (the latter by a score of 314-5).  It's an 8-4 season and a trip to a nice second-tier bowl for the Cornhuskers!

BOBBY’S PREDICTION:

My head recognizes 6-6 is a possibility.  My heart wants 9-3, cleaning up the slate of should-win and toss-up games, plus a win over one of Michigan, Ohio State, Michigan State, or Wisconsin.  I'm going with the popular cover of a 6.5 over/under, and predicting a 7-5 regular season, with a bowl win over some soft Pac 12 team for 8-5 and a solid start to the Frost era.  After last year's debacle (both on the team and my prediction...), I'm playing it closer to Vegas's read on the situation. Let's hope Gebbia can magically get Martinez's speed or Martinez can get Gebbia's passing acumen.  Either way, I figure the defense can't be worse (should create more turnovers if nothing else), and the offense should be a breath of fresh air, even if a bit sloppy in year 1. Regardless of whatever else you might think, let's all just hope Haase isn't right, for Husker fans' sanity and so her head continues to fit in the doors at the office.

SHARI’S PREDICTION:

Scott Frost was the quarterback who led the Huskers to a shared National Championship in 1997 under Tom Osborne.  1997 was also the year I graduated high school. I remember watching the games with friends and all the hype that came with that win.  We stormed the field downtown and thought we were pretty cool. Scott knows what it takes to win and he knows what Husker football was back in the day.  I don’t know if this is the year that he will go undefeated and bring home a national championship but I think we will do better than last year, I mean that isn’t asking much.  It’s getting “Frosty” around here! My prediction -- 7-5!

TIM’S PREDICTION:  

10-2.  #scottfrostforever #rideordie #gobigred

COADY’S PREDICTION:

Scott Frost’s confidence and leadership—and the steadying effect of the players’ belief that Frost and his staff are only beginning a long tenure at Nebraska—shows immediate positive results.  Experienced players that were recruited by Pelini, played for Riley, and have adapted to multiple coordinators are energized by the new coaching staff and embrace a sense of urgency to get the program going in the right direction before they graduate.  Some of the grit that appeared to have been missing in the team’s performance during the uncertainty that surrounded the back half of last season is replaced by a renewed dedication to playing hard-nosed, “Nebraska Football.”

Still, the 2018 slate offers very few gimmes; it is likely that improvements in the quality of play are not necessarily guaranteed to show up in the Win-Loss column.  Nebraska should beat Akron, Colorado, Troy, Minnesota, and Illinois. The Cornhuskers will have uphill battles against Wisconsin, Michigan State, and Ohio State (notwithstanding the uncertainty surrounding Urban Meyer’s coaching status by the time Nebraska plays at the Horseshoe in Columbus).  Michigan, Purdue, Northwestern, and Iowa are toss ups; and Nebraska goes 2-2 against those opponents. Prediction: The Cornhuskers finish 7-5, which is respectable against this schedule.

MATT’S PREDICTION:

I have lived in Nebraska almost my entire life.  However, I've never been a Husker fan. With that being said, I love me some football.  So let's talk about the Huskers: offensive line is suspect, QB suspect, defense suspect and if they are lucky they might end up fifth in conference play.  I see a struggling year yet again, but a promising future the next couple years. Frost is the right man for the Huskers to get back to where they need to be.  I also believe it will take a looooooong time for them to be better than third in their own conference. So my prediction for the season is 7-5 only because they squeak by Colorado and Northwestern. Go Irish!

JORDAN’S PREDICTION:

A Frosty Start.  As a third year law student at the University of Nebraska, I am becoming more and more sympathetic to Husker fans. With that said, it pains me to predict a 4-8 season for Nebraska. I see three clear wins on the schedule (Akron, Troy, and Purdue) and the Huskers are bound to blow one of them. That leaves them with a few toss-ups (Colorado, Illinois, Minnesota), and I'll give them two out of three of those.  Scott Frost just got here, and even Jesus took a few seasons to save his team.

We also wanted to remind you that KSB is having their tailgate party on Saturday, September 1st.  We hope you all will join us. Please remember to RSVP by clicking here.  

3 Easy Notices to Get Posted ASAP in August

The final post in our “Are you ready for August?” series is focused on providing notice of relevant laws and policies to students, staff, and parents.  Whether it’s a notice that is required to be posted by law, or just keeping staff updated, these are the documents you should make sure get into the right hands on on the right walls.

Student Policies.  

Neb. Rev. Stat. 79-262 states that student discipline policies, “shall be distributed to each student and his or her parent or guardian at the beginning of each school year, or at the time of enrollment if during the school year, and shall be posted in conspicuous places in each school during the school year.”  You may have notice we emphasized that last sentence.  This is one of the basic components of the Student Discipline Act that we see districts struggle with.  As you get ready to throw open the doors, be sure your discipline policies are posted in each building.

Labor Law Posters.  

As an employer, school districts are also required to post state and federal labor law posters in each building.  The Nebraska Department of Labor has downloadable posters available here.  

Copyright Compliance.  

Copyright remains a tricky issue schools.  In some cases districts can’t purchase a license to works even if they try, and in other cases staff simply doesn’t try.  The U.S. Copyright Office has a guide for the reproduction of copyrighted works by educators that we think should be distributed to all staff at the beginning of the year.  You can download a pdf copy the guide here.

Here’s to a great 2018-2019 school year!

Things That Should Arguably be on Every August Agenda

As we get back into the swing of things for 2018-2019, we wanted to review some policy discussions and district issues that boards and administrators should be mindful of as the school year begins.  

Memorial policy.  

You have no doubt read about the issues school districts faced this past year with student memorials.  You can read our previous post on memorials here.  We encourage your board to think about how it wants to respond to tragedy now, so it is not faced with hard decisions in the midst of a crisis.

Comparability Analysis and Negotiations  

It’s never too early to set the table for negotiations (pun heavily intended).  To enter negotiations with a clear, confident position the district should review where it’s at, in order to intelligently decide where it’s headed.

Negotiated Agreement.  What have you agreed to?  Have you agreed to anything that is unlawful?  Have you left out any elements which are required?  Is the agreement clear? Does it reflect your actual practices?  In many cases a change to the agreement gives both sides a more accurate picture of what the agreement actually says.  As the district and education change, these agreements need tune-ups and in some cases, an overhaul.

Array.  You’re pretty sure you know your array.  The district and local association have agreed to the array.  The array is set. The array is good. BUT, is your array the one the Commission of Industrial Relations (CIR) will use if your negotiations reach an impasse?  Maybe not. You can have your array checked by NorthStar or your school district’s attorney to make sure you’re negotiating with the right set of schools and the right set of numbers.  

Comp Position.  Once you have a correct array, does your district know how it compares to other schools in the array in terms of “comparability” used by the CIR?  Do you know where you’re at in the 98% to 102% window? The board and administration should know what their maximum salary could be if negotiations reach an impasse and go to the CIR.

Facility use policy and application  

Many districts allow the use of school facilities to outside groups that support students.  From pee-wee wrestling to piano lessons, many community organizations will request access to the school’s buildings.  There are two main issues that arise in these situations.

Equal Access.  If you open the district’s facilities to one group, you likely open it to all groups.  The Equal Access Act makes it unlawful for:

[A]ny public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

Liability Under the Political Subdivision Tort Claims Act.  The Act preserves school districts’ immunity from claims that relate to the inherent danger of recreational activities and athletic contests, so long as no fee is charged.  Club sport organizations can still collect donations, sell concessions, and charge a parking fee, but a direct admission charge will remove some of the school district’s immunity from a lawsuit.  

If you are a KSB policy service subscriber you should have our facility use policy (3014) and the facility use applications/agreements.  If you are unsure of your district’s policy or procedures surrounding facility use, you should contact your school district’s attorney. No matter what, you should review your policy now before the year starts to be sure it’s clear, lawful, and actually reflects your facility use practices for familiar and unfamiliar groups.  

This is a bit of a grab bag of issues, but they share one common characteristic: if school boards address these issues head-on before the school year is fully underway, they will be better prepared to handle hard questions that arise throughout the year.  If you have any questions about these issues don’t hesitate to contact our office.

The Best Way to Contact Your Lawyer

We work really hard to be responsive to clients when you need us.  Over the last few years, we have noticed that some clients call the office, then call our cells, then text or email us.  Being a school administrator or board member is hard enough--we want to make it easier for everyone to contact us. So, we compiled a list of guidelines below which we hope will make it clearer how best to contact us and get the quickest response.

Phone Calls

1. Call either the office or our cell phones.  Our office phones are linked to our cell phones, so you can call either number but you don’t have to call both.  

2. Leave a message if you want a call back.  If you don’t leave a voicemail we assume you called one of the other folks in the office, or decided to shoot us an email or text.  

Texting

1. We text!  Feel free to use our cell phone numbers to text us.

2. Shari texts!  If it is an emergency and no one has answered the phone, shoot Shari a text. She always knows where we are and can bust down the door of the conference room if she needs to do it.   

Email

1. To get the quickest possible answer, use the KSB@ksbschoollaw.com e-mail address.  It will go to everyone in the office (including Shari, who always knows our whereabouts).  

2. If you have e-mailed any of us and not received some sort of response in 48 hours, you should follow-up with our office.  We have had cases where a client’s email autofills Karen, Steve, or Bobby’s information with an old email address, or that were otherwise mis-delivered, sent to SPAM, or simply did not come through.  

Sharing Documents

1. Scans are the best way to provide us with copies of documents.  That allows us to access the documents no matter where we are.

2. U.S. Mail also works.  We maintain all of your files electronically, so all of the documents turn into scans anway (see rule #1)

3. We can send and receive faxes.  If we have to. But it isn’t 1996 anymore.

Social Media  

1. Social media is not a good way to receive legal advice.  We bow to no one in our love for social media.  If you think you should be able to contact your lawyer via Snapchat or Twitter, congratulations on being a millennial administrator or school board member! Otherwise, please enjoy our social media posts for interesting articles, jokes about Steve, and pictures of our kids and/or dogs, but please don’t use them to ask us legal questions.

Feel free to share this with other members of your board or administrative team.  Then you can show us what you’ve learned by communicating any questions via call/email/text as appropriate. For a downloadable PDF with all of the KSB crew’s contact information which you can save and consult as needed, please click here.

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.