PROM: Short for “PROMise of Legal Problems”

We hope this post finds you warm, dry, and not buried in snow or surrounded by flood waters.  Unless you’re reading this outside of Nebraska, none of that is likely...

With spring (eventually) coming to Nebraska sometime between now and July 1, we wanted to raise some issues in advance of prom that schools should be considering.  

1. Before a tricky discipline issue inevitably comes up in the next few weeks, review your discipline policies (and determine how prom fits into them).

Prom is an extracurricular activity at most schools, meaning it could be a subject of discipline under both regular student discipline policies and activity discipline policies.   Students who get into trouble at school can be prevented from attending prom; students who get into trouble at prom can be kicked out of school. Knowing how your policies and handbooks address those issues now will help you avoid stubbing your toe over the next few weeks.

KSB is hosting a Student Discipline Webinar next Tuesday, March 19, which will cover all student discipline laws and requirements, including extracurricular activity consequences.  Spring is always a time when students test a school’s boundaries and prom weekend always increases calls we get about discipline issues.  Review your policies now, and don’t wait to be blindsided with what to do when a student fails the breathalyzer...

2. Figure out who is “hosting” the prom and post-prom activities, and be sure you keep appropriate legal separation for events not sponsored by the school.

Schools handle prom and post-prom differently in terms of whether they are  school-sponsored events or not. Most schools “host” prom, but post-prom is hosted by parents.  Other schools “host” both prom and post-prom. Both options are legitimate, but the legal consequences for each can be very different.

You should be very clear about who is sponsoring what.  You also need to think through whether private post-prom committees can use the school buses; whether the parents can use the school’s tax exemption to purchase supplies; liability considerations; supervision requirements; and many others.  

Simply saying, “Post prom is sponsored by the senior parents,” is not enough.  If they are using the school facilities, transportation, supervision, equipment, etc., then the intermixing may actually mean it is a school-sponsored event over which you have given up some necessary control.  Be clear, and be clear early in the process.

3. Talk to your Prom and Post-Prom planning committees about students with disabilities who may be attending.

Regardless of whether your school hosts one or both of the activities, all of the applicable disability laws (Section 504, ADA, IDEA) will likely apply to both events.  Even if parents sponsor post-prom, the coordination between prom and post prom will likely require you to accommodate the needs students with disabilities. You should be thinking about the needs of your students: Is the post-prom location wheelchair accessible, and is there a way that the student with ASD can still attend the dance?

Keep in mind that none of the applicable disability laws permit you to foist compliance obligations onto parents.  Things as simple as transportation to-and-from the events may require “related services” for students who require regular transportation services.

4. Have clear policies and plans for drug and/or alcohol testing as a condition of coming to prom.

More and more schools are adopting mandatory random drug/alcohol/nicotine testing for students participating in extracurricular activities.  Most schools without random testing still administer breathalyzer tests at prom.

Here’s the rub: the ACLU of Nebraska has taken the position that including students in extracurricular drug testing policies as a condition of attending school dances is not permitted.  The ACLU has said, in the context of a school’s drug testing policy, “[The school’s] proposal has one provision that may be too broad and an unconstitutional overreach: testing at school dances.”  However, the ACLU concedes that “some courts have upheld breathalyzer testing at school dances.”

We do not agree with the ACLU’s assessment regarding drug testing, though we want to raise the issue.  We believe the legal basis for drug testing students in extracurriculars--namely the very minimal right (if any) to participate in sports and activities--applies equally to dances which are a privilege and not a right.  However, if your school conditions attendance at dances like prom and homecoming on submitting to random testing, the ACLU may challenge it. You should talk that through with your school’s attorney.

5. Be careful with rules like “no same-sex dates” and requirements  that prom “king” and “queen” be based on a student’s biological sex.

Title IX, as most of you know, seems like it’s constantly in a state of flux.  Between wild swings of administrative enforcement positions and the new proposed regulations, it’s tough to know how to respond when a student asks if they can bring a same-sex date.  Is that protected by Title IX, or not? What if a transgender male, biologically female, asks to be considered for prom king? The answers, of course, are not very clear.

It’s a matter of “when” and not “if” these questions will happen at your school, so we recommend considering the following to avoid a legal issue and to avoid stigmatizing any student for any reason.  Have a one-ticket-per-attendee rule, and don’t give “discounts” or special treatments to “couples.”  Have a “promenade” of your snazzily-dressed students, but don’t have them walk as “couples.” Consider whether you will allow students to bring “dates” who are not current students of the school, whether that’s a recent graduate or a student from a neighboring school.  Consider doing away with “king” and “queen” entirely and replacing it with a “community service” award or something similar.

Simply saying, “No,” comes with legal risks.  Although we’re sensitive to the political and traditional considerations at all school districts, planning ahead is the best way for boards and administrators to avoid legal pitfalls.

As with all of these issues, the legal complexities should be worked out in advance if at all possible.  If you haven’t reviewed these and related considerations recently, now’s the time. We recommend you do so soon and collaborate with your school’s attorney, or call Karen, Steve, Bobby, Coady, or Mandy.

New FLSA Overtime Regulations: It’s Like Deja Vu All Over Again!

Many of you remember that fateful fall a few years ago when the Obama Administration’s new overtime rules would have required employers to pay at least $913 per week ($47,476 annualized) in order to treat any employee as exempt from overtime payments.  You probably gave your head custodian a pay increase or converted her contract to hourly pay with overtime. You remember this, right?! We feel compelled to repeat for the millionth time that the employee also has to be paid on a salary basis and actually have exempt duties, but those proposed regulations forced many schools to consider changes to exempt staff contracts and compensation.  

About now is when most FLSA articles and presentations force some to think: “Wait, hold on, we can’t just treat someone as exempt from overtime by paying them a salary?”  NO, NO, NO, AND IT WILL ALWAYS BE NO! We digress...

Alas, here we are again.  Late last week, the Trump Administration released long-anticipated FLSA overtime and exemption proposed regulations.  They sought public input starting in July 2017, but now we actually know what they are proposing.

Here is the DOL press release.

Here are 219 pages of explanations and proposed regulations (and the actual regulations don’t start until page 211).

Here’s a quick rundown of some the important parts in the proposed regulations:

1. The Obama Administration’s proposed rules from 2016 (which were kiboshed by a Texas federal judge and stalled indefinitely in the 5th Circuit) would be formally withdrawn;

2. The big one: current minimum salary for an exempt employee, $455 per week, would be raised to $679 per week. Annualized, that’s going from $23,660 to $35,308;

3. The salary minimums would be updated every 4 years, but not automatically.  The DOL will use notice-and-comment rulemaking so employers have notice and time to comment, and the DOL may also decide not to raise the minimum based on “economic” factors during the 4-year review;

4. The rule is proposed to be effective starting January 1, 2020. Yes, this means thinking about classified staff contracts again this spring and fall in anticipation of a mid-year increase for the weekly salary minimum during the 19-20 school year;

5. The DOL estimates that about 10% of workers between the $455 to $679 per week compensation levels are misclassified as exempt and should be getting overtime, so fair warning, they are on to those of you who still just pay a salary to all of your secretarial and administrative staff without doing the duties analysis….

Here’s what’s NOT changing under the proposed regulations:

1. Teachers remain exempt regardless of salary level.   Under 29 C.F.R. § 541.303, teachers are specifically exempt if their primary duty is teaching, even if they do not meet the minimum salary requirements; and

2. You still can’t just pay a salary to avoid overtime!  An employee’s “primary duty” for the employer must meet one of the “exempt duty tests” for the employee to be treated as exempt from overtime, in addition to being paid on a salary basis and earning the new weekly salary minimum of $679.  The executive, administrative, professional, and computer employee duties tests are not changing, and you should be making sure all of your exempt employees meet at least one of the duties tests.

As always, we’ll follow up with any further developments.  If your school or ESU has questions about FLSA exemptions or these proposed regulations, you should contact your district or ESU attorney, or call Karen, Steve, Bobby, Coady, or Mandy.

If In Doubt, Call It Out: Child Abuse Reporting

If in Doubt, Call It Out: Child Abuse Reporting

Educators frequently check with us to ascertain whether a particular incident is a “mandatory report” under Nebraska’s child abuse reporting statute, section 28-711.  The reporting obligation in Nebraska’s statute comes from the criminal laws (Chapter 28), not the laws applying to schools (Chapter 79).  If you’ve been paying attention to the news, you now know why.

Many administrators have asked us about this story regarding a principal at an elementary school in Omaha who was criminally charged with failing to report suspected child abuse.  Other educators have asked about our standard policy after the World Herald editorial published an editorial encouraging school boards to review their policies relating to reporting child abuse and neglect.  Obviously OPS’s policy has gotten a lot of attention, but the editorial also took some shots at reporting policies at other area schools.  

We want our readers to be clear on your reporting and policy obligations, so let’s get to it.

All “school employee[s]” have a child abuse reporting obligation.  Section 28-711 makes “any...person” in Nebraska a mandatory reporter, and the statute names “school employee[s]” specifically.  That means all schools should make the reporting obligations clear to all staff, including teachers, non-certificated staff, community member coaches, and even volunteers.  Here’s the actual wording of the statute:

When any...school employee...has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect, he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the [DHHS]... toll-free number.... Such report may be made orally by telephone with the caller giving his or her name and address, shall be followed by a written report, and to the extent available shall contain the address and age of the abused or neglected child, the address of the person or persons having custody of the abused or neglected child, the nature and extent of the child abuse or neglect or the conditions and circumstances which would reasonably result in such child abuse or neglect, any evidence of previous child abuse or neglect including the nature and extent, and any other information which in the opinion of the person may be helpful in establishing the cause of such child abuse or neglect and the identity of the perpetrator or perpetrators. Law enforcement agencies receiving any reports of child abuse or neglect under this subsection shall notify the department pursuant to section 28-718 on the next working day by telephone or mail.

If you haven’t shared the specific requirement with your staff recently, you should.  Feel free to hit “forward” on this post or at least include it in your next staff inservice, along with a review of your policy.  And on that note...

Check your policy.  The OWH editorial criticized the Omaha Public Schools policy for stating that school employees should report suspected child abuse or neglect within 24 hours.  The editorial staff correctly pointed out that there is no 24-hour reporting window in the statute, and there are circumstances where waiting 24 minutes may be too much.  However, we freely admit that our standard policy used to contain an outside limit of 24 hours to make a report, but only in situations where the school needed to do some rudimentary investigation to clarify whether any reporting obligation had been triggered.  We decided to change that in 2016 based on some cases we were working on at the time. (For all KSB Policy Service subscribers, be sure you have the most recent version! We’d be happy to send it to you if you want to double check, or you can log into the policy service page here.)

Allow all staff to report to the Hotline or law enforcement.  Some older policies simply require staff to report suspected abuse to their upline administrator, and then the administrator is required to report the abuse.  We think that should change. Our preferred policy now contains these 4 primary principles:

1. The staff member must report to both (a) law enforcement or DHHS, and (b) to their building principal.  The school may have additional reporting or state and federal law responses--such as Title IX--to consider after a report is made.

2. If the principal calls in suspected abuse or neglect, the principal will inform all staff members with knowledge that he or she has made the report.

3. Nothing in the policy should be viewed to hinder any school employee from making their own report to comply with the staff member’s own reporting obligations.

4. If in doubt, report.  Staff can consult with their administrators to talk through the reporting obligations, but the directive to all staff should be to err on the side of reporting.

Once case out of Kentucky (Commonwealth v. Allen) held that a teacher and counselor could be criminally liable for failure to report child abuse, even if they reported it to their building principal pursuant to a standard practice at the school.  Much like our statute in Nebraska, the Kentucky Supreme Court said that multiple reports are expected on the face of the statute, even if they are entirely duplicative. All staff should make the report, and other school employees cannot assume a report will be made by their upline administrator.

We want to note that Nebraska’s statute does permit a school employee to “cause” a report to be made rather than actually making one.  We believe that means a teacher or other staff member is relieved of their reporting obligation as long as they know for certain that their administrator has made the report and included their name in it as someone with information about the alleged incident leading to the report.  That’s why our policy requires the principal to tell staff if the principal has made the report. However, all school staff should always have the flexibility to make their own report, even if they know their information has already “cause[d] a report to be made.”

There are other reporting obligations.  Keep in mind that the child abuse report may be the first of several which need to be made.  School principals must also report any known or suspected violation of the Nebraska Criminal Code by a student, which the county attorney for that county wants to be reported to law enforcement.  That comes from section 79-293.  

The Nebraska Department of Education’s Rule 27, which contains the professional standards for certificate holders, also contains mandatory reporting obligations for private (section 003) and public (004) certificate holders if the misconduct involves a fellow certificate holder.  For example, in the situation where a staff member sexually abuses a student, there would be child abuse and NDE reporting obligations.

Now is the time!  If you haven’t reviewed your abuse reporting policies and procedures recently, you should.  The same goes for training staff on reporting obligations. If you aren’t sure whether your policy and practice complies with state law and generally best practices, or if you want help thinking through the best way to train your staff, you should consult with your school’s attorney or call Karen, Steve, Bobby, Coady, or Mandy.

Ice Ice Baby - How to Postpone a Board Meeting Due to Weather

Today is the second Monday of the month, so many Nebraska Boards of Education have scheduled their meeting for tonight.  Today is also the approximately 1,000,000th ice storm that the state has endured this winter. Many superintendents and board members have reached out to us asking about what they need to do to accommodate weather concerns.  

First, let’s start with what you CAN’T do. In discussions with representatives from the Attorney General’s office just this morning, you cannot move up the time of your hearing. If you were scheduled to meet tonight at 7 PM, you cannot move the meeting up to noon today to beat the worst of the weather.

Now, onto what you can do and delaying the meeting. There is no requirement in the Open Meetings Act that you delay if public travel is at issue.  So long as a quorum of your board members can arrive at the meeting, you may lawfully go ahead with the meeting.  However, the weather may make it impossible or inadvisable for board members to travel to their board meeting tonight.  If that is the case, you have several options, depending on the wording of your board policy on meetings.

We have conferred with the Nebraska Attorney General’s office on this issue at several points over the years.  The attorneys in that office who handle open meetings complaints have advised us that so long as your board policy on meeting notices includes a process to follow due to weather delays, you may reschedule your meeting without following the complete meeting notice procedures from scratch.  Check your board’s policy to see if there are protocols for meetings that are interrupted by inclement weather (KSB policy service subscribers, that will be the “Weather Delays” section of Policy 2008).

If your policy does not include a process for weather delays, you should contact your school’s attorney before making a decision to postpone your meeting.  In either case, the safest route is to do treat the delay like a brand new meeting with at least 48 hours’ notice after you post notice again.  If your board policy requires your meeting notices to be published in the newspaper, you will have to move quickly to make sure the publication schedule of your paper will accommodate the new meeting.  (This is why we advise clients to have a post-only or website policy for board meetings, in addition to a weather delay provision.)

Nebraska statute requires boards of education to hold their regular meetings on or before the 3rd Monday of the month.  If you are under the gun and simply cannot get your new meeting advertised in the method set by your board before that time, we think it is better to hold a “postponed” meeting on or before the 3rd Monday and do your best to provide reasonable notice to the public.  Even the AG has discussed with us informally that following the same process you do for school closings (social media, radio, TV stations, website, etc.) and then reposting an updated meeting notice is probably sufficient to get the message out there.

Finally, just a reminder that tonight, February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.”  You will learn (1) everything you need to know about parliamentary procedure (which legally isn’t much); (2) the basics of closed session; (3) what you need to know about school district insurance and individual legal liability for board members; (4) how to deal with patron complaints; and (5) your role and responsibilities as a board member.

If your board cannot participate in the webinar live, we will record the session and make it available on our website.  If you would like to register for this webinar, click here.  

5 Things Every (New) Board Member Should Know

So you are a new school board member and you survived your first meeting.  Congrats! Or you are a veteran board member and have been through more board meetings that you care to count.  Thanks for your service! Here is the thing: there are so many expectations and laws governing school boards that new or veteran, it can be overwhelming to figure out how to do even things that should be simple.  

KSB is going to try to help.  Next Monday, February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.”  You will learn (1) everything you need to know about parliamentary procedure (which legally isn’t much); (2) the basics of closed session; (3) what you need to know about school district insurance and individual legal liability for board members; (4) how to deal with patron complaints; and (5) your role and responsibilities as a board member.

The idea is to invite new (and experienced) board members to arrive at your February meeting an hour early (or maybe slightly change your meeting time if possible) so that they can participate in the webinar before their second board meeting.  If your board cannot participate in the webinar live, we will record the session and make it available on our website. If you would like to register for this webinar, click here.  The cost is $150 per board (regardless of the number of board members who actually participate, so the more the merrier!)

As a preview of how simple things can get complicated quickly, here is a pop quiz: How much notice must a board give before it can meet?

Answer? It depends. (you saw that coming, didn’t you?)

The Nebraska Open Meetings Act requires schools to give “reasonable advance publicized notice of the time and place of each meeting by a method designated by the body and recorded in its minutes.”  But the law doesn’t specify a number of days or hours, so school boards have to rely on the Attorney General’s decisions and court opinions to figure out exactly how much notice is sufficient.

Twenty-Four Hours is NOT Sufficient Notice.  On February 16, 2018, the Nebraska Attorney General’s Office (AG) issued a disposition letter in response to a complaint that the Omaha School Employees’ Retirement System Board of Trustees provided insufficient meeting notices.  The board indicated that it posted notice of its upcoming meeting at the main door entrance of the Teacher’s Administrative Center (TAC) and on the receptionist desk in the Retirement Office at the TAC at least 24 hours in advance.  A copy of the meeting schedule for the entire year was posted in the Retirement Office of the TAC and on the OSERS webpage.

The AG determined that the posting of the meeting schedule for the entire year did not provide sufficient advance publicized notice, citing its previous opinion that concluded that “advance publicized notice” means a separate, specific advance notice must be given for each meeting.  See Att'y Gen. Op. No. 137 (Aug. 8, 1972).  The AG determined that posting at the TAC 24 hours in advance of the meeting was not reasonable.  This determination appears to have been made in part because most OSERS members are not regularly present at the TAC.  To ensure future compliance with the Act, the AG recommended that the Board post a complete meeting notice on its website prior to each meeting.

In another matter, the Midland Area Agency on Aging caused a notice of its meeting at 9:30 a.m. on January 4th to be published in the Hastings Tribune on January 3rd.  In a disposition letter dated April 12, 2018 issued in response to a complaint about the meeting notice, the AG indicated that the MAAA should publish its notice “more in advance of its meetings than the day before, particularly given that the Hastings Tribune is a daily publication.”

What Have the Courts Said?  In Pokorny v. Schuyler, 202 Neb. 334 (1979), the Nebraska Supreme Court held that a meeting notice posted in three public places one week before a meeting was sufficient, but a 10:30 a.m. special meeting notice posted in three public places at 10 p.m. the night before a meeting “could hardly be considered to be reasonable advance publicized notice.”  

In Banks v. Board of Education of Chase County, 202 Neb. 717, 277 N.W.2d 76 (1979), the Nebraska Supreme Court held that a meeting notice posted at the high school, the courthouse, and the post office two days before the meeting was sufficient.  In an unpublished opinion in Allen v. Greeley County Sch. Dist. No. 501, 1994 Neb. App. LEXIS 186 (Neb. Ct. App. 1994), the court found that placing notice on March 4th in seven public places was sufficient notice for a meeting held on March 6th at 8 a.m.

In City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792 (2007), the Omaha mayor called a special meeting approximately 12 hours before a 10 p.m. special meeting.  Shortly thereafter, notice was posted on the city office’s bulletin boards and on its website, and an agenda of the meeting was faxed to 19 area media outlets.  Additionally, the Omaha World-Herald published an article about the meeting in its afternoon edition of the paper. The court concluded that under the circumstances, Omaha's notification efforts were reasonable and sufficient:  

In Pokorny, we did not state that a 12-hour notice is always insufficient under § 84-1411(1).  Instead, we determined that the short time between the notice and the meeting was insufficient because the notice was unlikely to reach the public before the scheduled meeting.  [In addition to the factors listed above], [f]our television broadcasters were at the meeting, and one station broadcast the meeting live. Therefore, unlike the notice in Pokorny, the record shows that Omaha's notice reached a substantial part of the public before the scheduled meeting.

City of Elkhorn, 272 Neb. at 879.

Conclusion.    If you’re in a pinch and want to schedule a special meeting quickly, how much notice must you give?  Based on Banks, there should be little question that 48 hours’ notice is sufficient.  However, scheduling a meeting on less that 48 hours’ notice would be done at your own risk.  The public meeting laws are to be broadly interpreted and liberally construed to obtain the objective of openness in favor of the public.  The AG’s Office has made clear at least twice this past year that 24 hours’ notice is insufficient. It is unclear if their findings would have been different if the public bodies had posted public notices in more places, notified (more) media outlets, posted on social media, posted on their webpages, or had media outlets attend and/or broadcast their meetings.  Given the AG’s recent guidance and the unique circumstances present in City of Elkhorn, relying on the “Omaha exception” and providing 24 hours’ notice or less for a special meeting seems especially perilous.  You should check your district’s or ESU’s policy to be sure there are no provisions or references to things like “at least 24-hours’ notice” when calling regular or special meetings that may run afoul of these decisions.

If you have questions about your district’s approach as you work through the issues, you should contact a KSB attorney or your school attorney.

FERPA’s Hottest Topic: The Law Enforcement Unit Exemption

Schools are deeply invested in keeping their students safe.  In light of growing public concerns about overall school safety, both state and federal officials have recently suggested that Nebraska educators use a provision of FERPA to bypass some confidentiality concerns when they are sharing information with members of law enforcement.  Both the Final Report of the Federal Commission on School Safety, released on December 18th, 2018 (which we blogged about earlier) and the Nebraska Attorney General have encouraged schools to consider using the “law enforcement unit” exemption to the Family Educational Rights and Privacy Act of 1974 (FERPA) to allow the disclosure of safety and security information to third party officials.  

The Law Enforcement Unit Exemption

Generally speaking, FERPA requires parental consent prior to the disclosure of a student’s personally identifiable information contained in education records. FERPA defines the term education record as “records, files, documents, and other materials” that “contain information directly related to a student” and are “maintained by an education agency or institution.”  20 U.S.C. § 1232g(a)(4). However, “records of the law enforcement unit of an educational agency or institution” are not included within the meaning of “education record.” 34 C.F.R. § 99.31.  Law enforcement unit records are an exemption to FERPA coverage altogether, not an exception to disclosure. Consequently, the provisions of FERPA do not restrict the disclosure of law enforcement unit records at all.  Keep this “exemption” separate in your mind from the health and safety “exception” you already use to disclose education records to local police in cases of emergency.

As at least one tool for addressing crisis situations, the School Safety report noted that school districts may designate any office or individual as its “law enforcement unit” and disclose records which qualify as law enforcement unit records to other entities (like local police departments) at the school’s discretion. For example, a school district could appoint its principal as the law enforcement unit, and delegate to that “unit” the responsibility for administering the school’s video surveillance system for purposes of maintaining safety and security. That footage may then be disclosed without consent or an exception to consent as a “law enforcement unit” record not covered by FERPA.

If a school has designated a record under the “law enforcement unit” exemption, it cannot use the same record as a student record for discipline or special education purposes.  However, if the school makes a copy of the “law enforcement unit” record and uses it for educational purposes, that copy of the record is protected by FERPA.  Even in those cases, though, the original record does not lose its status as a law enforcement unit record.

It’s easiest to understand the law enforcement unit exemption by way of example.  Let’s say fist fight breaks out in a school hallway. Your principal is your “law enforcement unit,” and is also the person responsible for student discipline.  As she reviews the security footage, she realizes that a short segment of the footage captured the fight clearly. As the “law enforcement unit,” the principal could immediately disclose a copy of the raw footage to the police.  If the principal then chooses to expel the student who started the fight, she could make a copy of the same footage to use in the discipline matter. The original video footage which the principal released to the police is not a student record.  Instead it is a record of a law enforcement unit.  The copy of the video even though it is a copy of exactly the same footage does become a FERPA-protected education record when the principal decides to use it for a separate school purpose.

Now, before you run to designate a principal or an SRO as your “law enforcement unit,” beware.  There are many issues you will want to consider before using the “law enforcement unit” exemption to avoid all those difficult discussions with police about having to get a warrant or subpoena.  As an initial matter, you will need to have your board of education amend your records policies. You will need to provide notice to parents of your “law enforcement unit” designation. Once you have made this distinction, you invite other problems, such as the application of state public records laws.  For example, if the local TV station wants footage of the fistfight in the example above, the school would likely have to release a copy of the “law enforcement unit record” copy of the video (even if it is identical to footage kept in the student’s file). In our view, there are pretty significant tradeoffs to establishing a law enforcement unit and keeping those records exempted from FERPA coverage.

The Application of State Law

Like FERPA, Neb. Rev. Stat. § 79-2,104 limits access to students’ school files or records.  The statute protects against the unauthorized disclosure of a “school’s files or records maintained concerning such student” but does not define that phrase.  Understanding that Nebraska schools must comply with both federal and state record laws, the Nebraska Department of Education sought further clarification from the Nebraska Attorney General regarding the use of the law enforcement unit exemption by Nebraska schools.  

In response, the Attorney General’s office released an opinion (available here) that ameliorated  some of our concerns and affirmed that it also interprets FERPA and the state student record laws as permitting the disclosure of law enforcement unit records at the discretion of the school.  While the opinion did not specifically address our concerns with the interaction between the exemption and section 79-2,104, the opinion did not raise any issues with such disclosures under state record laws.  Further, the statutory language of section 79-2,104 makes clear that the legislature intended the law to parallel the protections of FERPA.

Conclusion

While some uncertainty remains regarding the use of the law enforcement exemption by Nebraska schools, both the Nebraska Attorney General and the President’s Commission on School Safety have found that the exemption may operate as a means for districts to share more information with local law enforcement.  The application of the exemption is dependent upon several conditions that must be met, and practically requires that the law enforcement unit records be maintained apart from the district’s protected education records. If your school is interested in appointing a law enforcement unit in order to utilize the exemption, we encourage you to contact your school’s attorney, or call Karen, Steve, Bobby, Coady, or Mandy.

Ringing in the New Year with New School Board Members

Many school administrators preparing for their January board meetings have asked about the appropriate process for dealing with new board members, so we have prepared a short list of frequently-asked questions for your reference.

Do New School Board Members Have to Take an Oath?

School board members are not really required to take the oath of office that other elected officials are obligated to take.  Section 11-101 of the Nebraska statutes contains an oath of office that “state, district, county, precinct, township, municipal, and especially appointed officers” must take.  In Frans v. Young, 30 Neb. 360, 46 N.W. 528 (1890), the Nebraska Supreme Court held that boards of education are not required to take the oath prescribed by this section, because the term “district” applies only to judicial districts, and the term “municipal” to villages, towns, and cities.    

What if We Want to Continue Having Board Members Take the Oath of Office?

Most Nebraska school boards have ignored Frans v. Young and continue to administer the oath of office found in section 11-101 to new board members.  There is no harm in taking the oath and maintaining this long-standing tradition. Here is the oath which you can complete and have board members sign.   

Even if your board decides to stop publicly administering the oath, new board members may still insist on taking the oath.  Denying a public official the right take an oath might well violate the official’s First Amendment rights. In Newdow v. Roberts, 603 F.3d 1002, 1006 (D.C. 2010), a federal court held that President Obama had a “First Amendment right” to conclude his Oath of Office with “So help me God.”

What If I Have Just One Board Member who Refuses to Take the Oath?

We do not believe that you may lawfully prohibit a board member from serving in the event he or she chooses not to take the oath.  There is a growing consensus among courts that an oath like the one from Nebraska’s statutes is probably unconstitutional.  Although there is no Nebraska Supreme Court case interpreting the constitutionality of the oath, the U.S. Supreme Court and several other state and federal courts have looked at oath requirements unfavorably.  For example, in Nicholson v. Board of Comm’rs, 338 F. Supp. 48, 56 (M.D. Al. 1972), a federal court in Alabama held that the phrase “So help me God” administered in an oath “infringes upon the free exercise clause of the first amendment.”  Likewise, in Vogel v. County of Los Angeles, 68 Cal. 2d 18, (Cal. Sup. Ct. 1967), the California Supreme Court held that an oath violated the First Amendment where it required the promisor to swear he or she was “not a member of any party or organization, political or otherwise, that now advocates the overthrow of the Government of the United States…by force or violence or other unlawful means . . . .”

These cases are just a few examples of numerous courts which have invalidated oaths like those found in Nebraska’s statutes.  A Nebraska court may find these laws to be unconstitutional as well.

What if I don’t have enough old board members to constitute a quorum to open the January board meeting?

Simply open the meeting with your new board members.  The new board members may sign their oaths before the meeting opens, or you may open the meeting and swear in the new board members as the first thing you do.

May the old board members act on the board’s old business and the new members act on its new business?

No.  At most, board members whose terms have expired may perform ceremonial acts.  They may not take any formal action because they automatically lose their authority to act on behalf of the school district when their terms expire, regardless of when their replacements are seated.  Some districts mistakenly have the old board act on old business and then pass the meeting over to the new board to deal with new business. However, this should be avoided because it exposes the board to a charge of having non-members take action on behalf of the school district.

What Can Be Done at the Meeting to Show Appreciation for Both Incoming and Outgoing Board Members?

Many districts use the January meeting as a time to thank board members whose terms are expiring and to welcome new board members.  This is an important interpersonal issue that you should not ignore. However, be sure that your board has complied with the legal requirements for changing membership on the board and that any gifts or items given in recognition of their service are given in compliance with the requirements and limitations of the Local Government Miscellaneous Expenditures Act (sections 13-2202 to 2204).  For example, section 13-2203(2)(iii) permits one recognition dinner per year for elected and appointed officials, employees, and volunteers. The “maximum cost per person for such dinner shall be established by formal action of the governing body, but shall not exceed twenty-five dollars.”  Section 13-2204(3) authorizes the expenditure of public funds “for plaques, certificates of achievement, or items of value awarded to elected or appointed officials, employees or volunteers [.]” Before spending money for such items, “the governing body shall, by official action after a public hearing, establish a uniform policy which sets a dollar limit on the value of any plaque, certificate of achievement, or item of value to be awarded.”  This limit may not be changed more than once in any 12-month period. These requirements are most easily met by adopting a board policy that sets the expenditure limits.

What Else Can We Do to Get New Board Members Oriented?

We know that the first few months on the board can be overwhelming for both the new board members and their administrators.  KSB is going to try to help with this problem. On February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.”  The idea is to invite new board members to arrive at your February meeting an hour early so that they can participate in the webinar before their second board meeting. Of course, veteran board members are welcome to participate as well.  If your board cannot participate in the webinar live, we will record the session and make it available on our website. If you would like to register for this webinar, click here.  

If you have any questions about seating new board members or any other matter, please contact your school attorney or Karen, Steve, Bobby, Coady, or Mandy at (402) 804-8000 or ksb@ksbschoollaw.com.  

Do You Feel Safer Yet?

On March 12, 2018, President Donald Trump established the Federal Commission on School Safety to review safety practices and make meaningful and actionable recommendations of best practices to keep students safe.  On December 18th, that Commission issued its 177-page Final Report of the Federal Commission on School Safety that includes the 93 best practices and policy recommendations for improving school safety.

The Report

The report includes 19 chapters divided into three sections – prevention of school violence; protecting students and teachers and mitigating the effects of violence; and responding to and recovering from attacks.  Highlights and recommendations include:

• Providing character education and a positive school climate so that students feel connected to, rather than isolated from, teachers and fellow students, and also helps combat cyberbullying.

• Improving access to school-based mental health and counseling services and integrating mental health, substance misuse, and other supportive services into schools.

• Conducting threat assessments and utilizing and supporting programs that encouraged the reporting of suspicious activities.

• Developing a media plan as part of a broader crisis preparedness, response, and recovery plan.

• Collaborating with parents to strengthen internet safety and develop measures to curb access to inappropriate content.

• Rescinding guidance issued by prior administrations designed to eliminate the disparate impact of discipline on minority and special education students as such guidance limits or interferes with educators’ ability to discipline students.

• Providing school safety training for all school personnel, including school resource officers.

• Considering arming some “specially selected and trained school personnel” (including but not limited to SROs and SSOs) as a deterrent.

• Hiring more military veterans and retired law enforcement officers as they would make “highly effective educators.”

• Conducting risk assessments of the school site, location, resources, and personnel to identify vulnerabilities and enable the development of a strategy to address any security gaps.

• Preparing for a potential active shooter incident through training, planning, and related strategies.

Take-Aways

Time will tell if the report and its recommendations will prove useful to schools or if it is simply more political rhetoric and jockeying from Washington.  However, as you might expect in today’s political climate, the report has played to mixed reviews. Thomas J. Gentzel, Executive Director and CEO of the National School Boards Association, stated that the NSBA is pleased that several of its recommendations are included in the report, such as allowing local school districts to customize approaches that best fit their communities, providing more support for school resource officers, and improving school-based mental health and counseling for students.  Lily Eskelsen Garcia, the National Education Association President, criticized the report, saying it strips students of their civil rights protections, was created without any real input from teachers and school personnel, seeks to put more guns in schools, and  does “little to make student safer.”

For our part, we view the report and its recommendations with a certain amount of caution. We recognize that many of the issues the report touches on are both dependent upon the specific circumstances of each school and the application of state law. Additionally, we are confident that Nebraska schools will continue to maintain a safe environment that strikes a balance between protecting students and respecting their rights.

We also believe that any reaction to the report should be tempered by the fact that it is nothing more than a representation of what the Trump Administration deems best practices - the report does not carry the force of law, nor does it represent the standard by which districts will be judged. To that end, for the most part, the report did not include any plans, or even a hint or suggestion, of federal funding to implement the recommendations.  Given the lack of federal funding and the state’s expectation that schools do more with less, it appears that schools looking to implement the report recommendations will be expected to do so within their existing budgets.

*A Special Note on Arming Teachers

One of the recommendations from the report that we have received many calls on in the last few years is to consider arming school personnel.  Legislation was introduced in Nebraska in 2014 that would allow individuals with a special permit to carry a concealed handgun in schools. The bill was opposed by the Nebraska State Education Association and the Nebraska School Boards Association and didn’t make it out of committee.  However, there are rumblings that a new bill will be introduced in the next legislative session that will again tackle the issue of arming individuals in schools. As we continue to analyze this issue, the report, and their effects on districts, we’ll be updating you with additional posts discussing how some of the recommendations interact with Nebraska state law and the day-to-day operations of Nebraska schools.

If you have questions about the report specifically or school safety generally, you should consult with your school or ESU’s attorney or contact Karen, Steve, Bobby, Coady, or Mandy.

Bah Humbug! The Three Ghosts of PPACA Reporting: Past, Present, and Future

It’s the most wonderful time of the year!  It’s holiday shopping, putting up decorations, trying to make sure you’re on the nice list (unless you’re Steve), and...reading the IRS’s instructions on filling out forms 1094-C and 1095-C for PPACA reporting?  Okay, maybe not everyone, but school business officials are already dreading the 3 days after Christmas and New Year’s when they’ll scramble to get as much of this work done as they can before staff return and begin demanding their W2’s in early January...

If you’re an administrator, do us a favor.  Hit “forward” right now and send this to your school’s business official(s) before you keep reading.  

Quick refresher on PPACA reporting: all “applicable large employers” (ALE) are required to make certain reports to their employees and to the IRS regarding offers of health insurance and the “affordability” of those offers, among other things.  

For those lucky enough to have avoided reporting because you are a “small employer,” keep in mind the determination of ALE status is an annual requirement.  If you have not refigured your “ALE number” for 2018 and thus whether you need to report, now’s the time. (Remember that your 2018 status is based on calendar year 2017 data, and only the federal government can make counting to 50 a task that requires legal advice — for the IRS’s explanation on calculating your ALE number click here.). If you’re still under 50 after going through the strange IRS calculations for ALE number and do not have a self-insured health care plan, it’s time to bust out the egg nog because you likely don’t have to report for 2018!

For those who are ALE’s and aren’t so lucky, you’ll remember forms 1094-C and 1095-C.  You may also remember some of the trickier considerations for reporting, like accounting for “cash in lieu” and the “safe harbors” for classified staff members who do not get all premiums paid by the district or ESU.  Like a foreign language, now’s the time to relearn how to “speak PPACA” so you’re ready to hi your reporting deadlines in early 2019. They are similar to past years:

January 31, 2019: individual 1095-C forms due to all “full-time” employees

February 28, 2019: 1094-C and 1095-C’s due to IRS if filing on paper

March 31, 2019: 1094-C and 1095-C’s due to IRS if filing electronically

Of note, there are other significant PPACA developments to learn about in terms of 2018 reporting and how PPACA will actually function in 2019 and beyond. For example, beginning in 2019 the “individual mandate” goes away, and some studies estimate that 4 million people will leave the Marketplace next year.  Because an employee obtaining insurance through the Marketplace is a component of the tax penalty calculations, that could mean changes in your board’s prior assessments of PPACA compliance and insurance offers. Similarly, the “affordability” threshold—which establishes the percentage of household income an employee can be required to pay toward your cheapest single insurance plan—actually went down (from 9.69% back to 9.56%) for 2018, marking the first drop in years.

As a school or ESU, you should be thinking through these things now, while the 2018 reporting is fresh in your mind over the next few weeks.  KSB’s annual PPACA reporting webinar will be held December 18, and you can register or purchase the recording and materials here: https://www.ksbschoollaw.com/2018-ksb-ppaca-reporting-workshop

If you have questions about your reporting obligations or any other area of PPACA compliance, you should consult with your school or ESU’s attorney or contact Karen, Steve, Bobby, Coady, or Mandy.

Nine for IX: 9 Things You Need to Know About the New Title IX Regulations

Quick quiz for all K-12 school administrators.  What is your first response if any of the following occurs?

• A kindergarten student reports that a 3rd grade student has touched her inappropriately while on the bus;

• A middle school student reports that his ex-girlfriend is circulating nude photos of him at school, mocking his physique;

• A high school student reports that her math teacher looks at her chest when she asks him questions about her homework;

• A teacher reports that the school’s cook has been sending him sexually suggestive text messages that make him uncomfortable.

Under revisions to the Title IX regulations which the US Department of Education’s Office of Civil Rights is proposing, your immediate response to each of these (unfortunately common) situations will need to change fairly dramatically.  

OCR released a Notice of Proposed Rulemaking on Friday, November 24, 2018.  OCR also released a summary of the proposed changes and a press release on the same date.  Although most of the media coverage of these new regulations has focused on how they will affect institutions of higher education, we interpret these draft regulations as actually making much more significant changes in how K-12 schools must respond to allegations of sex harassment and sex assault.  

We have prepared this quick summary of nine things every K-12 administrator should know about these proposed regulations.

1. Adoption of the Deliberate Indifference Standard.  First the good news for schools.  The draft regulations make clear that a school district will not be penalized by the Department of Education unless it is “deliberately indifferent” to allegations of sex harassment (which includes sex assault).  The Department promises it will not penalize an institution unless its response to allegations of sex harassment is "clearly unreasonable." This has long been the standard used by courts in assessing Title IX claims.

2.  Filing Formal Title IX Complaints.  The proposed rules state that schools will only have to investigate “formal complaints,” which are defined as written documents which must be signed by the complaining student or the Title IX coordinator.  At first this would seem to reduce the number of Title IX investigations which K-12 schools conduct, since most K-12 schools receive very few formal, written Title IX complaints. However, the regulations would now require Title IX coordinators to file formal complaints on the student’s behalf in many situations.  It appears that a school’s Title IX coordinator would be required to file a formal complaint if (1) the school has actual knowledge of multiple complaints against the same respondent; or (2) the reported conduct could create a hostile environment even if the student who is complaining does not wish to make a formal complaint.  In each of the examples listed above, we believe that the Title IX coordinator would be obligated to file a formal complaint, regardless of what the victims or their families wanted to have happen.  

3.  Single Investigator Model Prohibited.  In the vast majority of school discipline situations, K-12 schools use a “single investigator model.”  That means the same administrator investigates alleged student misconduct, determines what happened, and then imposes discipline on the students involved.  The proposed Title IX regulations would not allow schools to use a single investigator model in investigating allegations of sex harassment or sex assault. Instead, the district will have to bifurcate its process into a formal investigation and then a final decision-making process.  This means that K-12 schools will now have to train at least two (and possibly three) administrators on the new Title IX regulations. The draft regulations clearly state that the decision maker must not be the Title IX coordinator or investigator. This also means that if your school has designated the superintendent as the Title IX coordinator, you will have to identify (and train) another staff member to serve in that role so that the superintendent can be the decision-maker.  This will also complicate student discipline under state law, which is often initiated by the principal and reviewed later in the process by the superintendent.

4.  The Formal Investigation.  After a written complaint is filed, the district is obligated to begin a formal investigation.  The proposed regulations have detailed rules for this investigation. For example:

• At the outset of the investigation, the investigator must give a detailed notice to both parties in writing that includes a wide range of information including the names of the parties and the location where the events allegedly occurred; a statement that the respondent is presumed innocent of the conduct alleged; and a statement that false reports will subject the complainant to discipline, among other statements.

• Before the investigator interviews the students, they must be allowed sufficient time to prepare and they must be allowed to have someone present with them when they are interviewed.  This is a marked difference from the standards required for student discipline under what’s commonly referred to as “Goss v. Lopez” due process.

• Both students must be allowed to ask questions and follow-up questions of the other party.  K-12 schools may allow this questioning to happen either at a live hearing or by giving both sides the chance to ask their questions in writing.

• While the investigation is going on, neither side may be prohibited from talking about the investigation.

5.  The Formal Decision.  After the formal investigation is done, some staff member up the chain of command must make a formal decision about the allegations, and this also requires a written document. (In case you are keeping track at home, that is now the third new document that the regulations would require.)  That decision must contain specific information and be provided to both parties simultaneously.

6.  Appeals.  The regulations do not require the school district to allow an appeal from the final decision in a Title IX investigation.  However, they do state that if a school allows one party to appeal it must allow both parties to appeal. We are still analyzing if this means victims must be allowed the same appeal process that students are entitled to under state student discipline laws.

7.  “Safe Harbor.”  The regulations state that these new due process requirements are a “safe harbor” to prove the school has not been deliberately indifferent to claims of sex harassment.  We are not sure exactly how the OCR views this safe harbor. Will OCR automatically find a school deliberately indifferent if the district doesn’t even try to meet the investigation guidelines? Will OCR dismiss complaints if you prove you’ve met them? Or will they still look act the actual facts of the situation to be sure you have done things they way they want you to them, including whether your decision is the “right” one or not?  We just don’t know at this point, until we see the final regulations, and even then we may not have clear answers.

8.  Investigation Timelines and State Student Discipline Laws.  The timelines in the due process safe harbor procedures mean that Title IX investigations must take at least 30 days to complete.  They also appear to require schools to involve at least two and possibly three school officials in the process. It is unclear how these new processes will interact with individual state student discipline laws.  We get calls every day in which a student has engaged in misconduct which could be basis for student discipline as well as a Title IX complaint. Although the regulations do allow schools to exclude students on an emergency basis if they are given an “immediate” opportunity to challenge the exclusion, “immediate” is not defined and may conflict with state laws on emergency exclusion and student discipline.

9.  Application to Employees.  The draft regulations specifically state that they apply to both students and employees who are complainants and respondents in a Title IX investigation.  We are still analyzing exactly what that means in practice.

For example, in the “math teacher” scenario above, would the principal be unable to issue a written reprimand to the teacher until a formal Title IX investigation has been completed?  Does that give the teacher access to all the student complaints about him, possibly violating FERPA Does that mean we cannot prohibit the teacher from confronting the students about their complaints?  

In the teacher/cook scenario above, do the new regulations provide the cook with due process rights that she would not otherwise have?  If the teacher files an NEOC complaint alleging sex harassment under Title VII, does that mean the Title IX Coordinator must also file a Title IX complaint?  There are not any satisfactory answers to these questions at this point.

The next step is for the Department to issue actual proposed regulations and publish them in the Federal Register.  That could happen any day now. Then, there will be a 60-day comment period on the proposed regulations. The agency will review the comments and finalize the regulations in a manner that should take those comments into account.  However, in reality the majority of proposed regulations are implemented as “final” even after the comment period.  To be candid, we do not believe the draft or final regulations will differ substantially from what is outlined in the proposed rule documents linked above.  Agencies typically do not put 150 pages together only to change their mind, and they had other more collaborative approaches they could have used to make new Title IX regulations.

We will be waiting to advise our clients on their specific options with respect to the new due process safe harbor procedures, and the impact on student discipline laws, until we see the proposed regulations and ultimately the final regulations.  However, school districts must be ready to quickly and significantly revise their policies and practices. Often times, the proposed regulations are put into practical effect as a placeholder, especially since they are deemed to be an administrative “safe harbor.”  This means that schools should consider training for relevant employees on the new regulations as soon as they are released so that schools are ready to implement their new Title IX obligations quickly.

KSB is still mulling over whether we should submit comments addressing the impact of the proposed rules on K-12 schools.  If you have specific thoughts on the proposed rules, or the draft regulations when they come out, we encourage you to send them to us and/or on to the Department of Education.  In the meantime, we plan to address the draft regulations in our annual Title IX training on February 12, 2019 (you can sign up here).  If you have traditionally only had one of your administrators participate in the training, a good first step in getting ready to comply is to have a second administrator sit in on the webinar (and there is no charge for extra people in your district to attend).  We will also have revised policy considerations ready for KSB Policy Service subscribers to adopt as soon as the final regulations are issued.

If you have thoughts or comments about the proposed rules or would like to discuss the rules further, please contact Karen, Steve Bobby, Coady, or Mandy.  

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.