Out of the frying pan; into the Fry...er… An Update on Fry v. Napoleon and what it means for you!

By now, you’ve been in a presentation or read an article about Fry v. Napoleon Community Schools, 580 U.S. ___, (2017), one of the two landmark special education cases decided by the U.S. Supreme Court in 2017.  The Fry family sued the school district alleging it violated the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) by refusing to allow their daughter, E.F., to bring her service dog, Wonder, to school with her.  The case made it all the way to the Supreme Court, where the Court held that exhaustion of the IDEA’s administrative procedures is unnecessary where the “gravamen” of the plaintiff’s lawsuit is something other than the denial of the IDEA’s guarantee to a Free Appropriate Public Education (FAPE).  The Court remanded the case to the Sixth Circuit Court of Appeals to determine whether the gravamen of the family’s complaint regarding Wonder sought relief for the denial of a FAPE. You can read our blog post explaining the Court’s decision here (scroll down to about halfway through the post).

On remand, the Sixth Circuit court examined the Frys’ complaint, and found that it did not seek relief for the denial of a FAPE.  Instead, the complaint alleged disability-based discrimination without referring to the special education services provided to E.F. refusing to allow Wonder was discriminatory, not a denial of FAPE.  The court also considered the two hypothetical questions posed by the Supreme Court and determined that the “gravamen” of the Fry’s compliant is that, regardless of whether she was provided a FAPE, the school district violated E. F.’s rights under the ADA and Section 504 by denying her access to school with her service dog.  Finally, the court considered the history of the proceedings between the parties. The court noted that when the Frys originally contacted the school to address access to the school for E.F. with her service dog, they referenced only the ADA. They did not mention the IDEA or any questions or concerns about the IEP.  Instead, it was the school who invoked the IDEA’s procedures each time the service dog issue was raised. The Sixth Circuit ruled that the Fry's claims were not subject to the IDEA's exhaustion requirements and struck the school’s affirmative defense that the Frys failed to exhaust administrative remedies.

Both parties then moved for summary judgment.  E.F. asked the court to rule in her favor as to liability on her intentional discrimination claim, and then schedule a jury trial to determine damages. The school filed a summary judgment motion asking the court to rule in its favor and dismiss this case.  The Sixth Circuit rejected the arguments raised by both parties in support of their motions. E.F’s ADA and Section 504 claims for intentional discrimination and failure to accommodate will proceed to a jury trial.  

E.F. was 5 years old when this case was filed.  She is now 15 and a jury will now decide whether she can recover money damages from the school’s decision not to allow Wonder to attend kindergarten.  Perhaps the case will finally be decided in time for us to know whether Wonder can attend E.F.’s high school graduation!

Mo Money, Less Problems: The New DOL Minimum Salary Overtime Rule is Finally Final!

Today, the U.S. Department of Labor finalized a long-awaited rule  increasing the minimum salary requirement for employees who are exempt from overtime under the Fair Labor Standards Act (press release and summary here).  The rule will be effective January 1, 2020, which is consistent with the DOL’s announcement of the proposal last March.  As predicted, the final rule tracks the proposed rule closely, so you’ve probably heard us talking about this for awhile now.  Here’s what you need to know:

1. For employees to be “exempt” from overtime under the FLSA, they must have exempt duties, must be paid on a salary basis, and must be paid the weekly minimum salary amount for each week they are treated as exempt.  Only the third portion is changing under the new rule. Please note: simply paying someone above the weekly minimum does not make them exempt if their primary job duties are not exempt.

2. Under the new rule, the minimum weekly salary is increasing from $455 per week to $684 per week.  Annualized, that’s an increase from $23,660 to $35,568.  If employees you treat as exempt do not make the new minimum amount each week, you cannot treat them as exempt unless you increase their weekly pay accordingly.

3. HUGE EXCEPTION ALERT: The FLSA explicitly states that the minimum salary requirement does not apply to teachers and administrators.  Yes, you read that correctly. You are not required to increase the salary for teachers or administrators to continue treating them as exempt, in the unlikely event you have any certificated staff member making less than that amount.  (Note: There are a few unique situations here, such as technology coordinators or nurses who do not hold NDE certificates that you should flag for review with legal counsel).

4. The rule becomes effective on January 1, 2020.  You should immediately check all contracts for your non-certificated employees you are currently treating as exempt.  For schools and ESUs, this may include head custodians, head kitchen staff, and some other employees. If any of your currently exempt employees will be set to make less than the new weekly minimum as of January 1, 2020, you will need to decide how to address their exempt status under the FLSA, either by increasing their weekly pay or treating them as non-exempt and thus entitled to overtime.

Now is a great time to assess your overall compliance with the FLSA.  You should compile a list of all of your non-certificated exempt staff, review their weekly compensation, and double check that their “primary duty” is actually exempt.  Please, please, please do not fall into the trap of thinking that just because you pay a salary, an individual is exempt from overtime. If you have any questions about the new rule or other FLSA exemption questions, you should contact your district’s or ESU’s attorney or email us at ksb@ksbschoollaw.com.

What’s Old Is New: How the FMLA is like Nebraska vs. Colorado!

Today, Husker fans begin traveling west en masse toward Boulder to avenge a loss from last year and rekindle a beer-soaked rivalry.  Of course, the first thought that pops in your head is the FMLA, right? I suppose it could be a struggling Nebraska offense in week 1, beautiful mountains, or weed, but let us explain…

The high point of our little trope is to inform you that the federal Department of Labor has, quite literally, decided to take something old and make it new.  On August 5, the DOL proposed updated FMLA compliance forms with a pretty clear purpose: “The goal in revising the forms is to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”  

We think their success in meeting these goals will look more like a batting average than Adrian Martinez’s completion percentage, but take a look for yourself.  To their credit, the DOL does try to account for and explain the several FMLA requirements within the forms more clearly.  

The updated forms illustrate a key point: FMLA compliance is a tricky, cumbersome, and too-often-forgotten requirement in federal law.  The FMLA is susceptible to misunderstanding and preconceptions that may or may not be accurate. Who, exactly, is eligible for FMLA leave?  What if the employee doesn’t ask for it? What are the timelines? And which forms am I supposed to use again? (Here are the current forms for those scrambling down to your business manager’s office because you forgot all about the FMLA when that custodian with a bad back came in last week….)

Let’s cover a few quick basics to get you in the right frame of mind as we head into the 2nd month of the school year, which is inevitably when paid leave for often-absent employees starts to run out and the FMLA pops up:

• The FMLA applies to all public employers regardless of size, so you must have an accurate and up-to-date FMLA policy and employee notices --check yours!

• Employees are only eligible if they’ve worked for you for 12 months, worked 1,250 hours during the previous 12 months, and work at a jobsite with at least 50 employees within 75 miles.  (Yes, it is weird to have a policy, give notice, and have forms only to tell an employee “Sorry, we’re too small to give you FMLA leave.” No one ever said that the federal government makes sense!)

• Employees do not need to say the magic words, “FMLA leave,” to trigger an employer’s responsibility under the FMLA.  It is YOUR obligation as the employer to designate qualifying leave within 5 days:

(1) The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee as provided in this section. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.

• Once eligible, employees are entitled to 12 weeks of unpaid leave under the FMLA.  However, if their leave is incremental or they have a reduced schedule, it must be counted in increments no greater than one hour:

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

If you are thinking to yourself, “Wow, that’s only 4 bullet points I’m not sure I’ve got a great understanding of this stuff,” join the club! We didn’t even tackle substitution of paid leave, newborn bonding time, and some of your favorites. If you or your business manager(s) want some more training on these exact issues, KSB is hosting a webinar on September 10 (you can register here). We’ll also cover the interrelated mess of issues when you combine FMLA, FLSA, ADA, Work Comp, and more. In the meantime, if you have FMLA questions you should contact your school or ESU attorney or call one of the attorneys from KSB...and GBR!

It's Time! Here are the 2019 KSB Husker Predictions!

KAREN’S PREDICTION:

I bow to absolutely NO ONE in my love for the Huskers.  Bo Pelini is literally the only person who has goaded me into violating the “Grandma rule” on Twitter.  I am a grown-ass woman who believes that last year’s loss to Colorado was caused, in part, by the fact that I wore the same shirt that I had worn when we played Oregon in 2017.  I am as fanatical a Husker fan as that weird guy who used to paint his torso red and beat a little drum with an “N” on it at games.

And yet….

Love hurts.  Love scars. Love wounds and marks.  All the Lizzo songs in the world will never help me completely recover from my Husker-inflicted PTSD. 

Yes, I know in year two, Scott Frost took a winless UCF team to an undefeated season.  But my friends, in case you haven’t noticed, Nebraska plays in the Big 10 where, unlike the American Athletic Conference, the men are men and the trainers are nervous.  

Yes, I know that Adrian Martinez is poised to have a breakout sophomore season.  But the offensive line is so thin that we are converting Cam Jurgens to center. Championship caliber teams in the Big 10 do not consider starting red shirt freshmen as linemen and certainly not one who is being converted from tight end.  

Yes, I know that Mohamed Barry is back at linebacker this year, but who else wearing a black shirt can we count on?  Last year’s defense gave up more home runs than the this year’s Detroit Tigers. WE GOT BLOWN OUT BY MICHIGAN FOR GOD’S SAKE.  

I have looked up and down this year’s schedule, and I only see 5 assured wins.  Assume we steal one back from Northwestern or Minnesota, or that things go better against the Boilermakers than I fear.  I think the Huskers go 6-6. We’ll eek out a Bowl invite on the strength of the Big Red fan base and hopefully be able to claim a winning season after we thump a lesser opponent in a December game. 

 STEVE’S PREDICTION: 

[KSB management has removed all sections of this prediction that it found unlawful, defamatory, or other otherwise objectionable.] 7-5.

 BOBBY’S PREDICTION:

I’m a different type of Husker fan, now.  Let me explain.

It’s “closing time” in Lincoln, where every new beginning comes from some other beginning’s end.  Preseason top-25 in most publications? I’ve had enough of winning during the off-seasons and fall camp hype.  I’ve become a more skeptical fan--not, like, fully jaded a la Haase, but I’m firmly in “prove it” territory with Husker football.  I’m done with culture articles (though still enjoy them) and promises of “finally looking like a Big Ten team” (whatever the hell that means).  NFL scouts at practice? Great, don’t care. It’s time to shut up and put up, and I think the head coach agrees.  Frost’s sophomore season will start that process, albeit imperfectly.

I’ve long had the 2019 schedule circled as the “easiest” one of the 5 before and after it.  The right teams at home and the best cross-divisional games we could hope for given how much the league’s schedulers hate us, apparently.  But then all the sudden Northwestern wins, like, all its conference games and magically Purdue and Minnesota start not to suck? Great timing.  And Wisconsin and Iowa seem to turn under-the-radar high school kids from Beerbratsville and Soybeanshire into NFL players at an alarmingly increasing clip.  

This season comes down to maintaining critically thin depth at QB, OL, WR, LB, and to a lesser degree, DB. Feel pretty good about RB (aside from those child porn possession charges for MoWash), DL, and TE.  Special teams should improve. But you lose Martinez, that’s at least a couple wins. Some combination of Jaimes, Farniok, Wilson, Barry/Miller, Spielman, or Bootle/Jackson go down, and that’s probably another win-turned-loss. We’re still a few years away from avoiding losses due to severe lack of depth.

So…

WINS: South Alabama, Northern Illinois, Illinois, Indiana, and Maryland.  I’m being slightly generous putting a late November trip to Maryland in here, because that game could prove trap-like.  Their injuries and talent level should still allow that to be a win in any prediction thread.

PROBABLY SHOULD WIN (Nebraska probably favored by 3-7): Colorado, Northwestern, Minnesota, Purdue.  There’s a good argument some or all of these could flip depending on injury or season trajectory the week of the game.  I like Nebraska to take 2 of these games, but 3 tops.

PROBABLY UNDERDOGS: Ohio State, Wisconsin, and Iowa.  Gotta like all of them being in Lincoln, and Nebraska may even be favored in the last 2 based on season trajectory.  But I’m fearful the depth and other factors mean we only nab 1 of these in 2019, 2 tops. If I had to pick, it would be Iowa.  The holidays would be much better for me if we beat them.  

Add that up, and I find myself on the bottom side of the Vegas over/under (which is 8.5 and -130 on the unders at the time of authoring this drivel).  I get that Vegas sets betting lines; it doesn’t predict the future. But I don’t think they will miss by 2-3 deviations again like the last 2 years. I’m thinking the Huskers are somewhere between 7-9 wins, and in my book, that’s progress.

8-4.

SHARI’S PREDICTION:

Well we have started the year off right. We are ranked in the top 25 for the first time since 2014.  Not bad for having a 4-8 record last year. It has to mean something, right? We have to be better than last year and we have to win more games than last year. Another thing in our favor is a lack of a bowl game the last two years.  We will win the first few games, win a tough one against Iowa, lose to Ohio State and have a few that could go either way. Hoping for a 7-5 record this year with a good showing at the bowl game.     

COADY’S PREDICTION:

Notwithstanding last year’s 4-8 record, there was a lot to like about how Nebraska competed and improved over the course of the season.  In my view, the Cornhuskers kept getting better and better. They were not really “out” of any of the last seven games, and took a high-quality Ohio State team to the wire.

I expect Nebraska to show substantial improvement in the Win-Loss column this year, now that the team has had a full year under this coaching staff and its strength and conditioning program.  I see only two clearly uphill games: Ohio State (the talent is still there), and Wisconsin (because I won’t believe Nebraska is stout enough to consistently stop Wisconsin’s running game until I see it).  I may be overly optimistic, but I have the games against South Alabama, Colorado, Northern Illinois, Illinois, Minnesota (“Row your boat outta here, PJ!”), and Indiana already written down as Nebraska wins.  I see the games against Northwestern, Purdue, Maryland, and Iowa as toss ups. Nebraska splits those to finish 8-4. I would be pleased (but not surprised) if Nebraska does even better than that. Pass the Kool-Aid!

MATT’S PREDICTION:

Oh boy do I love predicting Nebraska football! This year will be an improvement from last, but how can it not be.  I believe they will have improved enough on defense to finally stop somebody and with Martinez having a full year with Frosty, they will win 8 games . . . If they are lucky! My prediction: 8-4   GO IRISH!

JORDAN’S PREDICTION:

Last year, Scott Frost rode in on a wave of optimism that swept across Husker Nation. On average, the rest of the KSB Office predicted over 7 wins for the team. But I knew better. After a lifetime as a Detroit Lions fan, I know nothing is more painful than hope.  Once again, hope is in the air as national pundits predict an emergent Nebraska will contend for a Big 10 Championship. It feels like deja vu - so I return again to try to temper your expectations. Despite one of the softest non-conference schedules money can buy,  it's just not the Huskers’ year. A demoralizing loss to Minnesota after a good (but not good enough) showing against Ohio State will drop them out of the top-25 at midseason. The team finishes 7-5, and rallies for an inconsequential victory in a decent enough bowl game.  It should feel good, after last year. But it won’t, because you let hope creep in.

We also wanted to remind you that KSB is having its tailgate party on Saturday, August 31st. We hope you will join us. Please remember to RSVP by clicking here.

BACK TO SCHOOL: A GOOD TIME FOR TRAINING

It is back to school time -- our FAVORITE time of year!  Administrators in Nebraska and all around the country are welcoming their students and staff back in fun and incredibly creative ways. (Here are a few of our favorites!) Although we heartily endorse the fun, celebratory back to school welcome, as school attorneys we have to remind you not to forget to complete a few of the less fun things on your back-to-school checklist.  

First: A quick note for Nebraska Superintendents and ESU Administrators: Don’t forget that, under the Superintendent Pay Transparency Act, you were supposed to have uploaded an executed copy of your employment contract to the NDE by August 1.  With Administrators’ Days falling on the first, we understand that some school districts have not yet completed this task. The consequence for a school district that fails to file its superintendent’s contract is severe.  The statute directs NDE to withhold the district’s state aid and to direct the county treasurer to withhold your tax funds. If you are a superintendent and you have not yet uploaded your contract, you can find the instructions for doing so here.  

Second: As You Meet With Staff, Don’t Forget Legal Training. Most Nebraska administrators are familiar with the list of mandatory annual trainings (dating violence, concussion awareness, etc.) and other required communications (written notice of the evaluation process to certificated staff, distribution of the district’s academic performance to patrons, etc.)   However, we think that administrators should spend a bit of your back-to-school inservice time covering these topics that aren’t required but could save you legal fees and headaches later in the year: 

Sex Harassment and Discrimination.  Staff should, at a minimum, know where to locate your policy and handbook provisions on anti-discrimination based on sex.  This includes your sex harassment policy, complaint procedure, and grievance procedure (for certificated staff). They should also understand who your Title IX coordinator is and how that person can be contacted.  That will be in your nondiscrimination notices, but reviewing it with staff is a good idea. Ideally, you would review prohibited conduct.

Child Find Obligations and RTI/SAT/MTSS/PBIS.  The IDEA and most state regulations, including Rule 51, require training for “appropriate” staff to be able to carry out the district’s “child find” obligations under state and federal law.  These obligations also apply to Section 504. These should be discussed in the context of the SAT process, as well. Any presentation about SAT, MTSS, and PBIS should also remind staff of ongoing child find obligations regardless of the tiered intervention system your district uses.

Mandatory Child Abuse Reporting.  All states require school staff to report suspected child abuse or neglect.  Nebraska statute section 28-711 requires “any school employees” to report child abuse when the 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.”  You should train on this obligation and on your district’s mandatory reporting policy and procedures.

Staff Acceptable Use of Computer Networks.  You should review your board’s rules for how staff can use the districts computers and computer networks.  Given that the presidential election will be heating up as the school year progresses, staff should be reminded of the limitations placed on their ability to use school resources for political purposes.

Staff Use of Social Media.  You should review your district’s policies and procedures on staff use of social media.  This should include requiring staff to provide the username and password for every school-affiliated account (e.g. “@BulldogWrestling”).  You should make clear to staff that they are not required to provide the username and password for their personal accounts. 

Staff Boundaries.  You should review your expectations and any board policies on the boundaries that staff members should observe with students.   

The school lawyers at KSB regularly visit schools to present in-service training on these and other topics, together with legally required training topics.  If you are uncertain about what additional information or training is mandated, contact your school attorney or the KSB attorneys at ksb@ksbschoollaw.com. 

Have a great 2019-20 school year!!

A Dog’s Breakfast: 3 Recurring Questions from This Year’s Legislative Session

It is July in Nebraska.  The heat index is up over 100 degrees.  Summer conditioning for fall sports is in full swing.  And school boards and administrators are scratching their heads trying to figure out how the heck to implement some of the Unicameral’s recently passed laws.  We are going to share three of the most common questions we have been fielding from KSB Policy Subscribers as they struggle to implement the latest and greatest legislation.  

Committee on American  Civics.  LB 399 changed the duties of the Committee on American Civics, formerly known as the Committee on Americanism.  This bill also changed the date you appoint this committee from the beginning of the school year to the beginning of each calendar year.  

Many of you have asked what the school should do for the 2019-20 school year given that LB 399’s effective date is September 1 and the “new” Committee on American Civics technically doesn’t have to be appointed until January 1.  Many of you have astutely pointed out that if the bill becomes effective September 1 and requires two committee meetings each “year,” which is now a calendar year schedule under LB 399, then it could be interpreted to mean you need to hold those meetings during 2019 and again during 2020.

The law just isn’t clear on how to transition from the statutes in effect now to the new statutes with a September 1 operative date but calendar year requirements.  The most conservative approach is to appoint the “Committee on Americanism” at the beginning of the 2019-20 school year (i.e. at your August meeting) and have it perform its responsibilities under the existing statutes and the new requirements of LB 399 during the balance of the 2019 calendar year.  This would include holding at least two public meetings of the Committee and receiving public testimony at one of those meetings. The board would then appoint/reappoint the “Committee on American Civics” at the beginning of 2020 (i.e. at the January meeting) and have it perform its responsibilities under LB 399 during the 2020 calendar year, which would become the cycle in perpetuity or until they change these laws again.   

A less conservative approach would be to wait until your January 2020 meeting to appoint the Committee on American Civics and have it perform its responsibilities under LB 399 during the 2020 calendar year.  Taking this approach means you may technically violate the current statute which remains in effect until September 1, which is why we say it is more aggressive.

LB 103.  We have fielded several questions from schools and ESUs about what needs to be done to comply with LB 103, which is designed to make political subdivisions address the total number of property tax dollars raised each year, even if the political subdivision has not raised the levy.  If a school district, ESU, or other political subdivision will realize an increase in the total taxes levied, the levy must be reduced to produce no more than the amount of taxes raised in the previous year. Or, if a district approves a total property tax request that exceeds the prior year’s request, the following additional information must be disclosed in the Property Tax Resolution and the Hearing Notice for the Special Hearing to Set Property Tax Request:

• Operating budget for each taxing fund for the prior year

• Operating budget for each taxing fund for the current school year

• Percentage change in operating budget for taxing funds over prior year

• Certified taxable valuation for the prior year

• Certified taxable valuation for the current school year

• Percentage change in the Certified Taxable Valuation over prior year

• Percentage change in property tax levy over prior year

LB 103 states that if the political subdivision determines an increase in the levy is necessary, it must hold a special public hearing and publish notice in a newspaper of general circulation at least 5 days prior to the hearing.  However nothing in LB 103 requires this hearing be in addition to your existing budget hearing.  Therefore, all schools and ESUs really need to do is to make sure the new required information is included in the property tax resolution that your board passes at this year’s hearing.  We have communicated with the staff of NDE’s Financial and Organizational Services division. They have noted that it is probably prudent for all schools and ESUs to include this information in their standard property tax resolution so that it is never inadvertently overlooked.  Therefore, NDE has added all of the wording necessary for LB 103 into their property tax resolution template. You can download NDE’s template by clicking here.  Some of you have asked if we’ll be putting out a form for LB 103 compliance, but we think it makes more sense to adopt one resolution for your tax asking rather than splitting it into two. 

Requiring Insurance for Use of School Property.  Although this technically isn’t a new law, it is an issue that has been coming up frequently with our client districts and about which there is a lot of confusion and misinformation.  School districts and ESUs are frequently asked by members of the community for access to their facilities and/or equipment or, in the case of playgrounds and athletic fields, community members just assume that they can use the school’s property after hours.  Can the school allow or limit this community access? If so, what steps does a school district need to take to address the potential liability in these circumstances?   

The short answer is that a board can be as accommodating or as conservative as it wants, as long as it understands the risks.  There are a few keys to consider as your district or ESU weighs these questions:

1. Take the time to really think through every piece of school property that you let people use for non-school purposes: the school’s chainsaw that the custodian takes home when he needs to clear brush on his farm; the church group that comes to use the school’s oven to make extra pies for the chili feed; the UTV with a snow blade that the board president borrows when he needs to move a lot of snow; the activity bus that the parochial school uses when they make state.  Each time the superintendent allows these items to be used, he or she is technically “leasing” (aka, giving away) public resources without board permission. Administrators and boards should be clear about what equipment may be loaned or leased and under what terms.   

2. Second, think about what, if anything, your board wants to charge for the use of this equipment.  There is no right or wrong answer here, but the board should give the superintendent clear directions about whether it wants to charge for the use of equipment and, if so, how much it wants to charge.  Remember that you cannot treat some favored groups or individuals differently than others. If you let the 4H club use your practice football field for free to practice for the dog show at the county fair, you’ll probably need to let the church use the field for VBS games.  You may not change the ground rules based on the user’s viewpoints or the type of group they may be. You also cannot let board members or employees use equipment for free and charge other members of the community because of the Political Accountability and Disclosure Act. 

3. Third, think about the insurance for those items.  Political subdivisions are liable for up to $1 million per person and $5 million per occurrence if someone is injured due to the school district’s negligence.  You need to either (a) make sure your school’s insurance will still be in effect when people are borrowing or leasing your property and equipment or (b) require the person or entity using the equipment to have adequate insurance.  

4. Fourth, you do not need to fence off playgrounds or put up “use at your own risk” signs near those areas.  The “recreation activities” exception to the Political Subdivisions Tort Claims Act provides that Nebraska Political Subdivisions cannot be liable for injuries which occur while an individual is engaged in “recreational activities,” including using playground equipment, unless the school district has engaged in “gross negligence.”  The law goes on to explain that gross negligence means “the absence of even slight care in the performance of a duty involving an unreasonable risk of harm.”

5. Finally, think about whether you want to allow groups that use your building to charge admission.  Just as with playground use, when the school building is being used for “recreational activities,” your potential for liability is greatly reduced.  However, you cannot take advantage of the recreational liability exemption if the person(s) using your property is charging a fee to spectators. This doesn’t mean it is illegal to charge a fee for little tyke basketball tournament, but it does mean that if they charge admission, you will need to make sure that someone (the school or the little tykes) has enough insurance to cover any injuries.  

If you have any questions about these or other policy or legislative matters, or if you want to talk through how these issues affect you and your board, you should contact your school’s attorney or call Karen, Steve, Bobby, or Coady.

How NOT To Fight Trolls: A School Lawyer’s Fairy-Tale

This school lawyer’s fairy-tale is set in a little county in Texas, where a naive county sheriff’s office faced the lamentable lands of social media, only to be attacked by trolls armed with the Constitution. The sheriff’s office tried to block the trolls’ assaults, but was soundly defeated in a final battle in front of the United States Court of Appeals for the Fifth Circuit. The scariest part of this cautionary tale… it's based on a true story that keeps repeating itself!

The Story

In Robinson v. Hunt Cty., 921 F.3d 440 (2019), the Fifth Circuit heard Deanna Robinson’s claims that the Hunt County Sheriff’s Office (HCSO) violated her First Amendment rights by deleting comments she posted on HCSO’s publicly available Facebook page, and by subsequently banning her from the page.  Robinson sought an injunction requiring HCSO to restore her access to the page, and a declaratory judgment from the court that HCSO’s actions were unconstitutional. Her requests were denied by a District Court, and Robinson appealed to the Fifth Circuit.

The Facebook page in dispute was maintained by the Sheriff’s office, and the “About” section of the page included the following:

Welcome to the official Hunt County Sheriff’s Office Facebook page. We welcome your input and POSITIVE comments regarding the Hunt County Sheriff’s Office. . . The purpose of this site is to present matters of public interest within Hunt County, Texas. We encourage you to submit comments, but please note that this is NOT a public forum.

On January 18, 2017, the HCSO Facebook account posted that:

We find it suspicious that the day after a North Texas Police Officer is murdered we have received several anti police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone and therefore we monitor it extremely closely. Thank you for your understanding.

Robinson, along with several other Facebook users, made critical comments on this post. Robinson in particular made highly offensive remarks about HCSO and the deceased police officer mentioned in the post. In her comments, Robinson also criticized the post “for expressing a policy of deleting and censoring protected speech,” noting that “degrading or insulting police officers is not illegal, and in fact has been ruled time and time again, by multiple US courts as protected First Amendment speech.”

Soon after Robinson made these comments, she alleged that HCSO deleted them and blocked her from the page.  In response, Robinson filed suit against HCSO, arguing that the Facebook page was a public forum, or, at the very least, a limited public forum subject to First Amendment protection. In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), the Supreme Court explained that the First Amendment “forbids the State to exercise viewpoint discrimination” in either public forums or limited public forums, regardless of whether or not the forum “is one of its own creation.” HCSO did not even try to argue that the Facebook page was not at least a limited public forum.  

Instead, HCSO argued that Robinson’s suit should be dismissed because it failed to adequately establish that the office maintained a policy of engaging in viewpoint discrimination on it’s Facebook page. This argument, however, was undermined by the posts that specifically warned users that the page was meant for “positive comments” and that “ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned.” This was sufficient evidence of a policy of viewpoint discrimination, and the Fifth Circuit ordered the trial court to reconsider Robinson’s request for a preliminary injunction restoring her access to the page and requiring HCSO to discontinue its unconstitutional conduct.

I Feel Like I’ve Heard This One Before

Unfortunately, this isn’t the first time a government entity has gotten into trouble for deleting posts or blocking users on social media.  It's a story that has repeated itself time and time again as more public entities begin to use social media to share information. For example, last year the United States District Court for the Southern District of New York made headlines when it ruled that President Donald Trump’s practice of blocking users on Twitter was unconstitutional.  An appeal of that decision is pending before the United States Court of Appeals for the Second Circuit.

Similarly, in 2014, the Honolulu Police Department was ordered to pay $31,000 in attorneys’ fees to a group of plaintiffs who successfully challenged the department’s practice of removing offensive comments from the department’s Facebook page. These cases are part of a larger trend firmly establishing that state actors cannot engage in viewpoint discrimination after opening a forum for comment on social media.

The Moral of the Story

Using social media to connect with your community is an invaluable outreach tool.  However, using it incorrectly can prove costly, as constitutional violations can lead to paying attorneys fees and damages.  Generally speaking, schools that utilize Facebook and other social media have two options:

1. Disable interactive public comment sections on your pages and posts.

2. Permit interactive public comment sections on your pages and posts, without censoring users or removing speech based upon its content.

By choosing the first option, your school will not be opening a public forum entitled to First Amendment protection.  But you will be losing out on the chance for you and your district’s patrons to truly engage by interacting. By choosing the second option, your school will be able to engage in back-and-forth discussion with your community.  But you will opening a some sort of public forum entitled to full-blown First Amendment protection. That means you should be prepared to permit comments and posts that are harsh, uncivil, and even untrue so long as they do not cross the line into speech which is not protected by the First Amendment such as obscenity.   You must also train district staff who have administrative privileges that they cannot censor or block users who are not nice to the district or even to others within the district. Note that it is not enough to simply say “this is not a public forum” — if you allow comments you ARE some sort of public forum, regardless of what you say about it.  

This is an emerging area of the law.  If your district allows comments and a patron posts something which seems inappropriate, (no matter how obvious it seems to you) talk to your attorney before removing the comment.

If you need help planning your defense against internet trolls, a quick bed-time story to scare your administrators, or assistance with any other issue, we encourage you to contact your school’s attorney, or reach out to your favorite story-tellers (Karen, Steve, Bobby, and Coady, of course!)  

You have no IDEA! Manifestation Determinations for Students Not Yet Receiving Special Education Services

If you’ve recently had the (dis)pleasure of reaching out to one of us for assistance with a student discipline matter, you probably know that we will promptly ask: “Is the student identified as a student with a disability?  Does she have an IEP or 504?”

And if you say no, we turn our attention to the IDEA’s secret child find and manifestation question: “Should the student be referred for evaluation as a student with a disability?  Do you have knowledge that the student may have a qualifying disability?”  

Wait, that sounds like a child find issue, not a student discipline issue…  Actually, it’s both.

Most educators are familiar with the “manifestation determination” requirement for longer-term student discipline when students are receiving special education services: before a school can remove a student from his or her current educational placement for more than 10 days, the school district must conduct a manifestation determination review (MDR).  In addition to the MDR, there are several procedural safeguards, such as prior written notice and the right to appeal.

If the multi-disciplinary team conducting the MDR finds that the student’s misbehavior was caused by or had a substantial relationship to the student’s disability, the student must remain in his or her educational placement.  The same is true if the team determines that the misconduct was a direct result of the district’s failure to implement the IEP. Translation: if any of those questions is answered in the affirmative, the student’s disciplinary change of placement cannot exceed the 10 day limitation under the IDEA.  

With us so far?  If so, good. If not, please hit “forward” and send this to your special education staff...

What fewer people realize is that under Rule 51 and the IDEA regulations, “[A] child who has not been determined to be eligible for special education . . . and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge . . . that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.” 34 C.F.R. § 300.534(a); 92 NAC 51.016.06A.

A school district or approved cooperative is deemed to have “knowledge” that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred:

• The parent of the child has expressed concern in writing to the administration or the child’s teacher that the child is in need of special education and related services;

• The parent of the child requested an initial evaluation of the child under the IDEA (unless the parent refused to consent to the evaluation or subsequent services, or the child was evaluated and found ineligible); or

• The teacher of the child, or other personnel of the institution, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the institution’s director of special education or other supervisory personnel.

34 C.F.R. §  300.534; 92 NAC 51.016.06.

Here’s where many minds get blown: if a school district or approved cooperative has knowledge that the child was a child with a disability before the behavior precipitating discipline, the child must be afforded the protections of the IDEA (such as an MDR prior to a change of placement) even if he or she does not have an IEP or 504 plan.  

Let’s say a parent emails a teacher and says, “I’m worried about my son.  He’s starting to lie about his bad behavior and gets really frustrated when I ask him about it, often throwing things.  Have you seen that in class?” The teacher then responds, “Yes. We have discussed his behavior before, but I have seen more of that in class and his reactions are getting worse.  I’ve had to send him to the office every day this week. Have you taken him to see your pediatrician?”

Bam! The school now has “knowledge” because a parent expressed a behavioral concern to the teacher.  The next time the student acts out and hits a classmate, the school district is supposed to at least consider whether that prior knowledge entitles the student to the protections of the IDEA.  Could the student have an “emotional disturbance?” Maybe an OHI verification for ASD, PTSD, or ODD? That’s what this regulation forces your staff to grapple with.

So how does that work?  Providing the disciplinary safeguards to a student not yet identified as a student with a disability presents a number of practical and conceptual challenges.  How do you do an MDR if you don’t know what the child’s disabling condition actually is? This is exacerbated by the fact that in these situations there is likely a dearth of data and evaluative information normally available to an MDR team.

The US Department of Education’s Office of Special Education Programs (OSEP), which interprets and enforces the IDEA for the Department of Education, recently provided additional guidance in Letter to Nathan, 73 IDELR 240 (2019).  

At the outset, Letter to Nathan addressed whether a local education agency (e.g., school district) may postpone a manifestation determination meeting until after the completion of the initial evaluation or the initial IEP team meeting for the child.  If the school finds itself in one of these “prior knowledge” situations, can they at least postpone the MDR until the evaluation is completed?  “No,” says OSEP, “No.” In Letter to Nathan, the agency notes that the IDEA mandates an MDR be conducted within 10 school days of any decision to change the child’s placement, without exception.  If a school has prior knowledge, it gets no additional time to evaluate the student or create an IEP prior to the MDR.  

So if there is no readily-available “evaluation tool” for a category like emotional disturbance, what does the team consider at the MDR?  OSEP advises that the MDR team review “all relevant information” in the child’s file, including any teacher observations and any relevant information provided by the parents.  The information that caused the district to suspect that there may be a need to evaluate the student will be particularly relevant.

According to OSEP, “Based upon its review and consideration of the available information, the group would determine whether the conduct in question was caused by, or had a direct and substantial relationship to the child's suspected disability.” Letter to Nathan recognizes that when there is no IEP developed for the child at the time of the MDR, “the LEA would be unable to determine whether the child’s conduct was the direct result of the LEA’s failure to implement the child’s IEP.”  So although the MDR questions are slightly different because there can be no “failure to implement the IEP,” the team is still required to conduct the MDR.

OSEP notes that a school district may, but is not required to,  expedite an evaluation of a student when the school district is regarded as having knowledge that the student was a student with a disability.  OSEP’s unspoken advice seems pretty clear: if you’re worried about a lack of data or testing information indicating whether the child even has a disability when conducting your MDR, maybe you should consider an expedited evaluation, or not discipline the student.

Training staff to answer the “secret” manifestation question.  The IDEA requires that schools consider whether a general education student is entitled to the disciplinary protections of the IDEA before imposing disciplinary removals.  The student is entitled to these protections when the school had knowledge that the child was a child with a disability - and the regulations loosely define “knowledge” to trend closer to what most would regard as suspicion.  More concerning for school attorneys is the fact that an email exchange between a teacher and a parent, alone, could be sufficient to confer that “knowledge.”

When the school has “knowledge,” it must undertake the difficult task of considering which protections the student may have under the IDEA.  This may require conducting an MDR without a determination as to whether the student is eligible for IDEA services in the first place. Though the guidance in Letter to Nathan is helpful, more than anything it highlights the practical and legal difficulties of these regulations.  

We strongly encourage schools to provide training to all staff on this issue, including administrators who are responsible for student discipline.  If you have a discipline checklist, the prior “knowledge” question has to be added to it.

If you have any questions about this, or any other issue, we recommend you contact your attorney, or call Karen, Steve, Bobby, or Coady.

Save the Date! If you are a KSB Policy Service subscriber, the 2019 annual updates are underway and links to the updated policies will arrive in your inboxes on June 3, 2019.  We will be holding our webinar to review the policy updates on June 4 at 9:00 a.m. CST.  If you cannot participate in person, we will record the webinar and post it on our website.

STOP, COLLABORATE AND LISTEN!!!

Absenteeism is a daily struggle for all administrators.  One of the most frustrating issues is the child who is habitually absent because his or her family just doesn’t make the effort to get the student to school.  A recent decision from the Nebraska Supreme Court serves as a reminder that schools have certain obligations when students are excessively absent. As an added bonus, we now know that a reluctant or nonresponsive parent cannot stand in the school’s way of moving forward in imposing consequences when a student is excessively absent.  The case is In re Reality W., 302 Neb. 878 (2019), and you can read the full opinion here.

Reality, a 15 year old student, had 68.5 days of unexcused absences in a single school year.  The school made multiple attempts to contact Reality’s mother: it sent four letters home; it made automated calls to the number provided by the mother on each day there was an unexcused absence; and the school counselor made three personal phone calls to the home.  Reality’s mother never responded to any of these contacts.

Shortly thereafter, the counselor observed Reality in the school hallway in the process of skipping class and decided to hold a “spontaneous” collaborative plan meeting with Reality.  He did not attempt to call the mother prior to the meeting. During the meeting, Reality and the counselor discussed her attendance barriers, including her schedule and transportation issues.  The school had previously shortened Reality’s school day and placed her on an IEP, and the counselor provided Reality a bus pass to assist with her transportation issues. The counselor offered family and individual therapy and discussed available community resources with Reality.  They signed the collaborative plan report, and the school mailed a copy to the mother. Reality continued to miss school, and the county attorney filed a truancy petition in juvenile court.

The juvenile court found Reality to be habitually truant from school.  The court found that although the collaborative plan meeting took place without the mother present, the school had fulfilled its statutory requirements to document its efforts to conduct the meeting.  The juvenile court concluded that Reality had no defense under section 79-209(3) to adjudication for habitual truancy. Reality appealed.

On appeal, Reality argued that the school did not meet its statutory collaborative planning meeting duties.  Reality claimed that the collaborative plan meeting which she had with the counselor was not legally effective because her mother was not there and because the school had not even attempted to contact the mother to attend this spontaneous meeting.  Section 79-209 provides in relevant part (emphasis added):

(2) All school boards shall have a written policy . . . to address barriers to attendance. Such services shall include . . . : (b) One or more meetings between, at a minimum, a school attendance officer, a school social worker, or a school administrator or his or her designee, the person who has legal or actual charge or control of the child, and the child, when appropriate . . . . . . . . (3) The school may report to the county attorney . . . when the school has documented the efforts it has made as required by subsection (2) of this section that the collaborative plan to reduce barriers identified to improve regular attendance has not been successful and that the child has been absent more than twenty days per year. . . . Failure by the school to document the efforts required by subsection (2) of this section is a defense to . . . adjudication for . . . habitual truancy[.]

The Nebraska Supreme Court rejected Reality’s argument.  The court explained that a parent’s absence from the collaborative plan meeting is not a defense to adjudication.  Instead, section 79-209(3) provides that “[f]ailure by the school to document the efforts required by subsection (2) of this section is a defense to . . . adjudication for . . . habitual truancy[.]” (Emphasis supplied).  The Court found that there was a great deal of evidence that the school district documented its efforts to comply with section 79-209(2), reduce Reality’s barriers to attendance, improve her regular attendance, and that its efforts had not been successful.   Ultimately, the Court rejected any position that a parent’s refusal to participate in the collaborative plan process can prevent a school from implementing the plan process to improve a juvenile’s attendance.

While the courts ignored some of the school’s shortcomings in this case, remember that the statute requires schools to take certain steps to enforce compulsory attendance laws.  These include:

• Adopting a written policy on attendance developed and annually reviewed in collaboration with the county attorney.

• Including provisions in the policy for handling excessive absences due to illness and the circumstances and number of absences or the hourly equivalent upon which the school must render all services to address barriers to attendance.

• Providing verbal or written communication to the parent or guardian regarding attendance issues.

• Holding one or more meetings to attempt to address the barriers to attendance between, at a minimum, a school attendance officer, a school social worker, or a school administrator or his or her designee, the parent or guardian, and the student (when appropriate).

• Developing a collaborative plan to reduce barriers identified in the meeting(s) to improve regular attendance that considers, at a minimum:

  • Illness related to physical or behavioral health of the child;

  • Educational counseling;

  • Educational evaluation;

  • Referral to community agencies for economic services;

  • Family or individual counseling; and

  • Assisting the family in working with other community services.

In the event that the collaborative plan is not successful and the student has been absent more than 20 days per year, the school may notify the county attorney.  However, the school must notify the student's family in writing before referring the student to the county attorney.

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

Don’t Be an April Fool

Mark April 15th on your calendars.  This is the date on which certificated staff members’ contracts automatically renew for the next school year in Nebraska.  The automatic renewal date is vitally important for two groups of certificated staff members:

Certificated Staff the District may NOT want back next year.  

If school administrators have concerns about the performance of a teacher or other NDE-certificated staff member (principals, SLPs, school psychs, nurses, etc.), they must decide before April 15th whether they want to proceed with the non-renewal or termination of the employee’s contract.  This deadline applies to any action on a teacher’s contract, including reductions in force.  In Bentley v. School District No. 25 of Custer County, 255 Neb. 404, 586 N.W. 2d 306 (1998), the Nebraska Supreme Court held that delivery of a non-renewal notice on April 16th was not sufficient statutory notice to a teacher, and constituted no notice at all.

If you have any reservations about whether to continue a certificated employee’s employment contract, you should contact your school district’s attorney promptly to discuss your legal options.  Your school attorney will want to review the employee's file and assist in preparing the proper notice documents if you decide to proceed with a possible termination or nonrenewal. Most importantly, they’ll be able to assess whether you have a legally sufficient case and whether legally (and politically) you can actually accomplish your recommended action.  Do not issue your own letters without first ensuring you’ve complied with the statutory and NDE Rules for evaluation, including whether sufficient “cause” exists if it is required by the tenure laws.

We have had some administrators ask us what they should put on the board’s agenda before delivering a notice of termination or non-renewal.  The short answer is “nothing.” The statute gives the superintendent the responsibility for notifying a certificated employee of proposed changes to his or her contract in most cases.  The board does not take action until after the staff member decides whether to request a hearing.

Certificated Staff the District DOES want back next year.

The April 15 deadline is also significant for staff members you want to continue in employment.  As a general rule, the April 15 deadline applies to both staff and the district. That means if a teacher has not told you that he/she is resigning for the next school year, he/she is also obligated to return to the district.  Now, this deadline can be extended either by board policy or your negotiated agreement. Some boards foolishly allow staff members to resign as late as May 1, May 15, or sometimes even June 1! Check your policy and negotiated agreement to see if you have extended this deadline voluntarily (and change it if you do).  The board cannot extend its deadline beyond April 15, even if it has extended the deadline for teachers to resign.

Board members and administrators should also know that it is not necessary for a teacher to sign a new contract in order to be bound for next year.  A certificated staff member’s contract is continuing, which means both parties are bound after April 15, unless your district has some policy or other provision that says otherwise.  Some schools use an “intent to return” letter or “renewal agreement” which is lawful, but not legally required.

For reasons we don’t understand, many boards pass a resolution rehiring all of their certificated staff for the next school year.  We strongly prefer that boards not do this.  Come April 15, teachers are automatically rehired if the board takes no action on their contract, so there is no real benefit to passing the resolution.  It’s a purely ceremonial function which becomes extremely awkward when a staff member is being considered for possible non-renewal or termination and the board passes a resolution re-hiring all of the staff members...except that one.  Worse yet, there is an argument that your ceremonial “renewal” vote could be used against the board if the staff member engages in misconduct after the board vote but before April 15.

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

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.