Queen of Corona(virus) Me and Julio Banned from the Schoolyard!

**This post was updated on March 13, 2020 to reflect the new guidance from the U.S. Department of Education.  You will be able to find all of KSB School Law’s guidance documents related to the novel coronavirus, and it will be updated, at this site: https://www.ksbschoollaw.com/covid19

As communities around the country record new cases of novel coronavirus, schools are grappling with tough questions about how to respond to this burgeoning pandemic.  The novel coronavirus, scientifically named 2019-nCoV, causes the COVID-19 disease, which has led to serious complications in some vulnerable populations, and is expected to spread more quickly than common coronavirus strains (such as influenza.)  As schools prepare to respond to the spread of this virus, one of the important issues that schools should consider (among many) is how the novel coronavirus implicates their obligations to meet the needs of students with disabilities. 

Best Guidance

As we anticipated in the original version of this post, the U.S. Department of Education adapted previous guidance related to the H1N1 Virus to provide schools information about their responsibilities to students with disabilities in the face of the novel coronavirus.  The new Guidance, entitled Questions and Answers On Providing Services To Children With Disabilities During The Coronavirus Disease 2019 Outbreak, was released by the Office for Special Education Programs on March 12, and can be found here.  It is referred to below as the “Q&A” document.  

This document largely builds upon the Department’s Questions and Answers on Providing Services to Children with Disabilities During an H1N1 Outbreak.  On the other hand, the Department’s Guidance on Flexibility and Waivers for SEAs, LEAs, Postsecondary Institutions and Other Grantee and Program Participants in Responding to Pandemic Influenza (H1N1 Virus) (“Guidance”) continues to provide additional information that can be read to supplement the Q&A document.  This guidance can be downloaded here.

These are our best sources of information about how to address the needs of students with disabilities during an outbreak of novel coronavirus.  

Planning Ahead

Recognizing the need for schools to prepare for any circumstances caused by the novel coronavirus, the Q&A document allows IEP teams to adopt contingency plans into a student’s IEP that would be triggered by a disruption in the student’s ordinary instruction due to the contagion.  The document provides as follows:

IEP teams may, but are not required to, include distance learning plans in a child’s IEP that could be triggered and implemented during a selective closure due to a COVID-19 outbreak. Such contingent provisions may include the provision of special education and related services at an alternate location or the provision of online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, and may identify which special education and related services, if any, could be provided at the child’s home. Creating a contingency plan before a COVID-19 outbreak occurs gives the child’s service providers and the child’s parents an opportunity to reach agreement as to what circumstances would trigger the use of the child’s distance learning plan and the services that would be provided during the dismissal.

Services to Students With Disabilities Who Are Absent Due to Illness or Health Vulnerability

If a student with a disability is too ill to come to school, he or she is likely too ill to receive educational services.  If the student is home for an extended period of time (generally 10 days or more) the school should reach out to the family to see if the team needs to meet to craft a plan that includes homebound instruction.  

Schools should be even more proactive if a student is not ill, but cannot come to school because he or she is at high risk of health complications if exposed to the novel coronavirus.  The student’s IEP or 504 team should meet as quickly as possible to discuss how to meet these students’ educational needs during their time at home. The Q&A document provides:

[T]he IEP Team must determine whether the child is available for instruction and could benefit from homebound services such as online or virtual instruction, instructional telephone calls, and other curriculum-based instructional activities, to the extent available. In so doing, school personnel should follow appropriate health guidelines to assess and address the risk of transmission in the provision of such services.

In the Guidance, the Department specifically noted that these meetings would not have to be in person:  “The team may meet by teleconference or other means” if that would be appropriate. Once the danger to a high-risk student has passed, the IEP or 504 team should meet again to ensure that there are no additional educational needs that have arisen due to the student’s inability to receive services.  

Remember that Endrew F’s admonition is that IEPs must have “challenging objectives that are appropriately ambitious in light of the child’s circumstances.”   For students who are ill and those who are high risk, “the child’s circumstances” may include an inability to attend school.  This must be an individualized decision, not based upon stereotypes or generalizations related to the student’s disability. That means schools will not be able to adopt a “one size fits all” approach to these absences.  In some cases it might be appropriate to press forward with aggressive academic instruction using distance learning; in others it might mean backing off on some of the academic goals the team adopted when the school year started.  What is appropriate for each child will have to be discussed and decided by the student’s team in light of what is necessary for the student to receive meaningful education benefit.

Exclusion from School as a Change of Placement

The Q&A document specifically contemplated students that must be excluded from school due to the risk of novel coronavirus.  If the exclusion is a “temporary” measure, or one lasting ten or less days, the exclusion is not considered a change of placement.  However, where a student’s exclusion lasts longer than ten days, the school “must consider placement decisions under the IDEA’s procedural protections of 34 CFR §§ 300.115 – 300.116, regarding the continuum of alternative placements and the determination of placements.”

Services to Students with Disabilities During School Closures 

Federal laws like the IDEA, the ADA, and Section 504 do not specifically address what schools should do if they are closed for extended periods of time.  However, public schools are always obligated in all circumstances to ensure they do not discriminate against students with disabilities.  

The Q&A makes clear that if a school closes and does not provide educational services to the general student population, then the school would not be required to provide services to special education students either:

If an LEA closes its schools to slow or stop the spread of COVID-19, and does not provide any educational services to the general student population, then an LEA would not be required to provide services to students with disabilities during that same period of time. 

However, both the Q&A and the Guidance cautioned schools that, if they do provide some services to general education students during a closure, they must be sure not to discriminate on the basis of disability.  So, if a school district decides to use virtual learning to continue to instruct all students during a closure, the district will need to make sure that all of a student’s educational needs are met to enable him/her to benefit from this instruction as well.  District leaders cannot simply announce that general educational services will happen virtually without considering the needs of students with disabilities. Both special education and general education staff must understand that the decision to continue providing educational services in either physical form (like worksheets) or digital form (like Zoom or Schoology) will implicate special education obligations.  According to the Q&A: 

If an LEA continues to provide educational opportunities to the general student population during a school closure, the school must ensure that students with disabilities also have equal access to the same opportunities, including the provision of FAPE.  SEAs, LEAs, and schools must ensure that, to the greatest extent possible, each student with a disability can be provided the special education and related services identified in the student’s IEP developed under IDEA, or a plan developed under Section 504. 

Evaluation and Assessment During School Closures

In the Guidance, the U.S. Department of Education was unwilling to waive school obligations to evaluate and assess during school closures:

IEP teams would not be required to meet in person if a school closes. IEP teams, however, must continue working with parents and students with disabilities, including conducting informal assessments or formal assessments of the student, including parent surveys and standardized reports, and offer advice, as needed. If an evaluation of a student with a disability requires a face-to-face meeting or observation, the evaluation would need to be delayed until school reopens. Evaluations and reevaluations that do not require face-to-face assessments or observations may take place while schools are closed, if the parent consents, according to the guidelines.

Special education staff should look ahead to assessments and evaluations that are scheduled to occur for the remainder of the 2019-20 school year.  It would be wise to consider advancing those assessments or to reach out to parents now to make a plan for what will happen in the event of a school closure.  

Students in Out of District Placements 

Students with disabilities who have been placed in out of district placements, regardless of whether those are residential or day programs, will pose unique issues for school districts.  The Q&A makes it clear that if a residential facility closes, the local education agency remains responsible for addressing any educational needs of the students who were placed in that facility.  Special educators should be proactive now to reach out to any out-of-district program that is serving students with disabilities to discuss that facility’s closure protocol. School districts should also communicate with the parents of these students now to broach plans for serving these students in the event of a school closure.  Schools should also reach out to their attorneys for specific guidance on how to meet their legal obligations to students in out if district placements in these circumstances.  

As with any other areas possibly impacted by coronavirus, you should gather all of your vendor contracts to have a clear picture of the school’s and the vendor’s/provider’s obligations, rights, and responsibilities.  In the services context, you should be prepared to share your contract for services with your legal counsel to determine if it contains any provisions addressing closures, continuation or discontinuation of services during a closure, and others.

Early Childhood Services (Part C)

The Q&A specifically addresses early childhood services.  It noted that if the offices of the state lead agency closes, then Part C services will not need to be provided to infants and toddlers with disabilities and their families during the closure.  Similarly, if the lead agency’s offices are open but the offices of the EIS program or provider in a specific geographical area are closed due to public health and safety concerns in that specific region, the EIS program or provider would not be required to provide services during the closure.  If the offices remain but services cannot be provided because the child is infected, the lead agency must ensure the continuity of services alternate means, such as consultative services to the parent.

Services to Students With Disabilities After School Resumes

Regardless of the services, if any, that a student with a disability receives during a school closure, special education staff must proactively gather data about the student when school resumes.  The Guidance repeatedly states that, in all cases, district staff will need to determine whether a student with a disability needs compensatory education to make up for any skills or services that may have been lost during the student’s absence or the school’s closure.  These services can be delivered by providing extended school-year services, extending the school day, providing tutoring before and after school, or providing additional services during regular school hours. The Q&A makes it clear that early childhood officials must similarly consider if a child’s service needs have changed or whether the child’s IFSP needs to be revised after services resume.  

Conclusion 

The best advice for special educators is to be proactive now.  Start thinking about whether your school will provide instructional services to all students during a pandemic closure, and consider the implications for special education students.  Reach out to case managers and service providers to get them thinking about how services could be designed for the students on their caseloads. Communicate with the parents of disabled students to see if you can reach agreement on what circumstances would trigger distance learning services or what services would be appropriate during a school closure.  The more school districts can plan ahead, the more likely we are to meet all of our legal obligations to students with disabilities if the novel coronavirus disrupts our school year.  

Keep Calm and Carry On

*******You will be able to find all of the guidance from KSB School Law, and it will be updated, at this site: https://www.ksbschoollaw.com/covid19*******

If you’ve caught the news, hopped on Twitter, or checked your email this week you know that more cases of COVID-19, commonly referred to as the coronavirus, are being reported worldwide.  As a result, schools are being urged again to review their preparedness for outbreaks of communicable disease. Fortunately, most schools already have policies in place that allow them to effectively respond to a pandemic.  Additionally, schools can look to their state educational agency for support in responding to this issue. For example, we’ve been communicating with the Nebraska Department of Education, which is working closely with the Nebraska Department of Health and Human Services to make resources and support readily available.  The Nebraska Department of Health and Human Services is already providing the public its most up-to-date information at this site. 

With this foundation in place, the best thing you can do is keep calm, and use this opportunity to review your policies, consider your implementing procedures, and reassure your school community that you are monitoring the situation and prepared to respond as appropriate.  

Check Your Policies and Procedures

Most schools will already have policies in place that authorize school officials to exclude students, close school, or take other appropriate actions to respond to an outbreak of communicable disease. For our policy service subscribers, policies 3013 Emergency Closings, 3048 Communicable Diseases, and 6031 Emergency Exclusion provide this authority to the superintendent.  Policy 3048 Communicable Disease, best summarizes the superintendent’s authority and responsibility should the coronavirus require responsive action:

The superintendent will take appropriate measures if there is an epidemic or outbreak of a communicable disease which may include, but is not limited to, the emergency exclusion or alternative placement of students or the closure of a school building or the entire school district.   

As you review your policies, you should also consider what procedures you would follow to carry them out. We would also recommend that you identify who will be responsible for monitoring the developing information related to the spread of coronavirus and what resources will be relied upon, such as the Department of Health and Human Services.  

It is also important to take proactive steps to maintain health and peace of mind.  Remind your students and staff of the importance of good hygiene, and encourage those who are sick to remain home.  To that end, refresh yourself on your sick-leave and FMLA policies. Finally, remind your employees that a considerable amount of disinformation is shared during any public health emergency, and that they should seek out reliable sources of information that do not benefit from misrepresenting the facts (such as state and local health departments, the CDC, or the WHO.)

Communicate Effectively

In situations like these, we always recommend that schools communicate with the public about their proactive approach.  To help you do so, we’ve developed the following statement you can provide parents after reviewing your policies and, if necessary, updating them.

Dear Parents and Students,

The district is monitoring the developing information related to the spread of COVID-19 (commonly referred to as the coronavirus).  To date, the district is unaware of any native cases of COVID-19 being reported in our state. However, the district has reviewed its relevant policies and procedures and is confident that it is prepared to respond to any outbreak of communicable disease that may occur.  Should this situation interfere with the district’s ordinary operations or schedule, you will be provided notice in the customary fashion. 

We encourage you to remain informed about the spread of the coronavirus, and would recommend that you visit the website for the Department of Health and Human Services, found here, for further information as it develops.  We would also encourage you to use this opportunity to remind your students of the importance of getting rest and washing hands, especially during cold and flu season.  

You should hyperlink “here” to take readers to the relevant page from your state, and update the name of the respective agency as necessary.  For convenience, we’ve produced the links here:

Colorado Department of Public Health and Environment:

https://www.colorado.gov/pacific/cdphe/2019-novel-coronavirus

Iowa Department of Public Health:

https://idph.iowa.gov/Emerging-Health-Issues/Novel-Coronavirus

Kansas Department of Health and Environment:

http://www.kdheks.gov/coronavirus/

Nebraska Department of Health and Human Services

http://dhhs.ne.gov/Pages/Coronavirus.aspx

South Dakota Department of Health:

https://doh.sd.gov/news/Coronavirus.aspx

Conclusion

We appreciate the apprehension many have regarding the coronavirus (trust us, we closely monitored both Shari and Karen for it.)* On the other hand, schools are regularly tasked with educating students in the midst of public health crises, and are well- equipped with the policies and experience necessary to respond appropriately.  Further, schools in Nebraska can be confident in making the best decision for students should the coronavirus require disruptions to the regular school schedule. We’ve conferred with Commissioner Blomstedt and the Nebraska Department of Education, and were assured that NDE would work with schools that suffer impediments to the provision of instructional hours as it has during previous emergencies.

If you have any questions about your school’s preparedness for the outbreak of communicable disease, we recommend you contact your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.  

*Editor’s Note: Don’t worry, both Karen and Shari tested negative!

Go Home, Rule 91…

The most recent changes to the Nebraska Department of Education's Rule 91, which governs driver qualifications and operational procedures for pupil transportation vehicles, became effective on February 5th.  The Department’s summary of the major revisions can be found here.  If you feel like you’re experiencing déjà vu, it's probably because Rule 91 was last changed effective July 1, 2019.  In fact, the most recent revisions were intended to ease the heightened training requirements imposed by the July 2019 changes.

 “Drivers of Small Vehicles for Activity Trips Only”

 For the last several months, Rule 91 required that all new drivers complete “Behind the Wheel” training, a Level 1 instruction course, and a physical examination to qualify to drive a pupil transportation vehicle.  These requirements made it difficult to arrange transportation for activity trips. To its credit, the Department was responsive to the resulting issues and initiated the process to revise the rules.

Those revisions affected sections 003.02C and 003.03 of Rule 91.  As of February 5th, drivers of small vehicles for activity trips only are no longer required to complete “Behind the Wheel” training, the Level 1 instruction course, or a physical examination.  However, all drivers are still required to complete the two-hour in-service training provided by the employer school.

So. . .  What’s Required Now?

Under Rule 91, all drivers are now required to complete the district’s two-hour in-service training.  This is the only requirement applicable to drivers of small vehicles who drive for activity trips only.  All other drivers must also meet the more robust qualification requirements.  

For drivers who have never before held a school bus permit, or have never met the requirements to qualify to drive a pupil transportation driver, Rule 91 requires that the individual:

• Complete “Behind the Wheel” training and a pre-service evaluation administered by a qualified driver.  (This training and evaluation requires that the individual hold a CLP Learner’s Permit for commercial vehicles.)

• Successfully complete a Level I Instructional Course by receiving at least the minimum score on the Level I Instructional Course Exam.

• Pass a prescribed physical examination administered by an approved medical examiner as documented by a valid Medical Examiner’s Certificate.  Each examination is valid for up to two years from the date of the exam.

For a driver to maintain their status as a qualified pupil transportation driver, Rule 91 requires that the individual:

• Pass a prescribed physical examination administered by an approved medical examiner as documented by a valid Medical Examiner’s Certificate.

• Complete, within five years of completing a Level I Instructional Course and within each subsequent five year period, a Level II Instructional Course.  If more than five years have passed since the individual last completed a Level I or Level II Instructional Course, the individual must again complete a Level I Instructional Course.

We thought it might be most useful to Nebraska educators if we summarized the various requirements in a table:

Conclusion

 With these changes, scheduling drivers for activity trips became a little easier again.  To summarize, drivers of small vehicles for activity trips only may now transport students after receiving the two-hour inservice training and instruction in emergency evacuation procedures, first aid, and other areas applicable to the relevant student group. If you have any questions about driver qualifications under Rule 91, or any other issue, we recommend you contact your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

P.S. P.S.A. on the FMCSA

While we’re talking transportation, you should be aware that the Federal Motor Carrier Safety Administration (FMCSA) is heightening its focus and enforcement on the policies and materials provided to drivers regarding drug and alcohol testing.  Over the last year, the FMCSA has begun to take the position that the school’s policy itself should include the entire laundry list of information required to be provided to drivers pursuant to 49 CFR § 382.601.

While we do not think that this is technically required by the regulations (which permit the information be included in materials provided to the drivers, such as by your testing agencies), our policy service subscribers can expect to see an update to Policy 4003 Drug Testing of Drivers when we release our annual updates this spring.  Our updated policy will ease compliance and conform with the FMCSA’s expectation that all information contemplated by the regulations be included in the policy itself.  If you’re not a subscriber, you should review your policies on drug testing of drivers and your practices related to distributing those policies. If you would like our assistance in reviewing and updating your policy in light of the recent enforcement activities, we would be happy to help.

Think Skinny! Effective “Communication Diets” and Limiting Parent and Patron Access to School Facilities and Communications Systems

Sometimes, the problems are with the adults...

As our country grapples with a mental health crisis, schools are asked to do more with less.  Not only are students’ needs putting a strain on school resources, but educators are spending more and more time responding to disruptive actions and ever-increasing communications from parents and patrons.  

When a non-student’s behavior interferes with the orderly operation of the school, it's important that administrators understand their authority and limitations when setting boundaries.  Administrators should feel empowered to set lawful boundaries and enforce them. Limiting or conditioning a disruptive individual’s access to school grounds, activities, and employees makes for a much more productive school environment.  In fact, courts around the country regularly uphold schools’ decisions to set such boundaries. 

Authority to Set Boundaries

While school grounds and school events are generally open to the public, schools can exclude anyone who is not suitable to be around students or who is disruptive to the orderly operation of the district.  See, e.g., Embry v. Lewis, 215 F.3d 884 (8th Cir. 2000).  No individual has a “right” to go upon the property of a public education institution.  To the contrary, as their own gatekeepers, schools have a substantial interest in avoiding liability by preventing harm to any of their students, faculty, or staff by refusing to allow disruptive, disorderly, or dangerous individuals from entering school grounds or activities.  See, e.g., A.W. v. Lancaster County Sch. Dist. 0001, 280 Neb. 205 (2010).  

So, what do you do when you have a disruptive parent or patron, or someone poses a possible risk?  Schools often issue a letter to the individual, prohibiting that individual from entering school grounds or activities without prior approval.  If the recipient disregards this directive, they are trespassing and law enforcement should be notified. We like spelling that out clearly in the letter.

Similarly, schools generally have no legal obligation, outside of unique areas like parent input for special education, to consider or respond to parent or patron communications.  Schools have a legitimate interest in limiting excessive, hostile, or intimidating communications so as to allow for efficient operations and to ensure school resources are appropriately expended towards the education of students.  The old adage about spending 90% of your time on 10% of your problems always comes to mind.  

Usually, when enforcing communications restrictions, it means that the district designates a single person as a point of contact to respond to communications from the individual at issue, and other school officials that receive communications will forward them to the contact person without responding. 

Legal Considerations

While schools have the right to exclude individuals from property or limit their communications with staff, they should be mindful of potential claims of retaliation.  This most often arises when a parent’s disruptive behavior or excessive communications related in some way to the services provided to a student with a disability.  

However, a school will not be found liable when it can demonstrate legitimate, non-retaliatory reason for taking action.  See, e.g., North Hills Sch. Dist., 118 LRP 12493 (SEA PA 2018) (no Section 504 violation when a school district limited a mother’s voluminous communications to a single point of contact); Spokane Int’l Acad., 118 LRP 45383 (OCR 2018) (parent’s aggressive, disrespectful conduct justified limitations on her access to campus and staff). This often requires sound documentation regarding the behavior at issue, why it was deemed disruptive, and how the school came to the decision that responsive action was necessary.  A zealous parent advocate is different than a hostile or aggressive and threatening parent, and your documentation and reactions must respect this difference.

The Ninth Circuit Abides

An excellent example came just a few weeks ago, when the Ninth Circuit released its opinion in L.F. v. Lake Washington Sch. Dist. #414.  In that case, L.F. and his spouse recently finalized a divorced. His daughters allegedly suffer from anxiety and behavioral disorders.  Due to his conduct, discussed below, L.F. was placed on a communication plan by his children’s school. The plan prohibited L.F. from directly contacting school staff, and instead called for communication to take place during biweekly meetings between L.F. and building administrators.  L.F. claimed the communication plan constituted retaliation against him for advocating for the Section 504 rights of his daughters. According to L.F., this also violated his First Amendment rights.

The Ninth Circuit disagreed.  The district produced evidence that the plan was not imposed because of L.F.'s advocacy for his daughter’s rights.  Instead, the plan was necessary because L.F. sent “incessant emails to staff accusing them of wrongdoing; making presumptuous demands; leveling demeaning insults,” and acted in an “aggressive, hostile, and intimidating manner” during face-to-face encounters. "[T]he Communication Plan addressed the manner in which L.F. communicated with the District -- not the content of his speech of any viewpoints he wished to convey," Judge Presnell wrote.

Further, the plan did not actually regulate L.F.'s conduct itself; L.F. continued to email staff members after the plan was imposed.  Instead, the plan regulated how the district would respond to L.F.’s communications. As the Ninth Circuit noted, “[M]embers of the public do not have a constitutional right to force the government to listen to their views. And the First Amendment does not compel the government to respond to speech directed toward it.”  L.F. ex rel. K.S.F. and K.S.F. v. Lake Washington Sch. Dist. #414, 120 LRP 1811 (9th Cir. 2020) (internal citations omitted).

Parent Participation and the IDEA

Schools can also impose limitations on a parent’s access to campus and staff without violating the IDEA’s requirement that parents participate in the IEP process.  Under the IDEA, parent participation does not mean that a parent has a right to communicate at will with school staff, nor does it mean that a parent has a right to access school grounds at will.  

Instead, the IDEA specifically guarantees parents the right to participate in and receive notice of meetings regarding the provision of FAPE to their child.  A meeting does not include informal or unscheduled conversations. 34 C.F.R. § 300.501. So long as the district implements a plan that allows the parent meaningful participation in IEP meetings, it will not run afoul of the IDEA.  See, e.g., Seattle School District, 114 LRP 32867 (SEA Wa. 2014) (holding that a communication plan only invokes the IDEA if it inhibits meaningful participation as an IEP team member, and that a communication plan limiting parent communication to a single point of contact did not do so).

Conclusion

It’s unfortunate when schools must take time away from education to deal with the inappropriate behavior of adults.  Fortunately, courts recognize that schools must be able to take appropriate actions to address these situations. Schools have the authority to limit a disruptive individual’s access to school grounds, events, and employees.  This may take the form of a stay-away letter and a prohibition from school grounds, or a communication plan limiting the time and manner that a school will respond to a parent or patron. In any case, schools should always document disruptive behavior to safeguard against any claims that its actions were unreasonable.  

If your school needs help responding to a parent or patron’s disruptive actions or communications, we recommend you reach out to your school’s attorney or call Karen, Steve, Bobby, Coady, or Jordan. 

We Didn’t Start the Fire! Don’t Get Burned in an Election Year

Weinstein, twitter trolls, Title IX, gender roles

Border wall, TikTok, Hong Kong revolution 

Giuliani, no more guns, Smoking starts at 21,

Court seats, legal weed, Trump tweets NO COLLUSION! 

Primaries, Bernie Bros, Pope Francis, Biden Woes

Kim Jong Un, Erdogan, Obama said "Yes We Can" 

Free college, deep state, people using blackface?!,

Pocahontas, Mayor Pete, we're at war with Iran!

We didn't start the fire

It was always burning

Since the world's been turning

We didn't start the fire

No we didn't light it

But we tried to fight it

We didn’t start the fire, but it's never burned hotter!  Over the next year, our country will debate articles of impeachment, a presidential election, and whatever else 2020 throws at us.  During these passionate times, it is important that school staff remember the limitations and obligations they have when fulfilling their duties.  This means staying on-task with students, rather than unnecessarily spending valuable instructional time expressing political views that aren’t part of your curriculum or that particular class.  This also means that when political topics are appropriately a part of classroom discussions, teachers must remain professional, respectful, and educational. School employees also risk serious consequences under state law by inappropriately engaging in partisan activity while performing their duties.  Finally, the First Amendment doesn’t always protect speech outside of the school environment, either, so educators must be responsible when using social media. 

I’m Sorry. . .  I Thought this was America?!

This is America, and we all have First Amendment rights.  In fact, the First Amendment rights of educators are more robust than those of private employees. This is because public employers are “state actors” governed by the First Amendment, unlike private employers.  Schools must respect their employees’ rights to speak “as a private citizen” on “matters of public concern.” You’ll recognize those phrases from iconic cases like Pickering, Garcetti, and Connick.  

However, “when a citizen enters government service, the citizen by necessity must accept certain limitations on his or her freedom. . . When public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.” Garcetti v. Ceballos, 547 U.S. 410 (2006). 

This issue most recently arose in Kluge v. Brownsburg Cmty. Sch. Corp., 2020 U.S. Dist. LEXIS 2672 (S.D. Ind. Jan. 8, 2020).  In 2017, the Brownsburg High School implemented a new policy that allowed transgender students to identify their preferred names and pronouns, and required employees to refer to students in line with those preferences.  Shortly thereafter, Mr. Kluge, a high school music and orchestra teacher, informed the superintendent that he would not abide by this directive because it conflicted with his religious beliefs against confirming gender dysphoria.

Mr. Kluge was instructed that he had three choices: (1) abide by the policy and refer to students by their preferred names, (2) resign, or (3) be terminated without pay.  Kluge resigned, and then sued arguing that the school violated his First Amendment rights to freedom of religion and speech. The court disagreed, noting that the school may regulate a teacher’s interactions with students inside school and in the context of the school day or school activities.  Mr. Kluge’s First Amendment rights did not extend to his classroom interactions with students, and the school could require him to refer to students by their preferred names. 

A Two-Part Test

Courts apply a two-part test to determine if a public employee’s speech is protected by the First Amendment.  The first step really asks 2 questions: did the employee speak (a) as a private citizen (b) on a matter of public concern.  If the answer is “no” (to either inquiry) the First Amendment does not protect the employee’s speech. If the answer is “yes” (to both inquiries), the First Amendment may protect the employee’s speech, and we turn to the second part of the test.

To determine whether an employee is speaking as a private citizen, the fact that an employee is at the workplace is not necessarily dispositive.  Instead, the court will look to whether the employee spoke pursuant to their official duties (which is, of course, more likely in the workplace). Courts generally  construe a teacher’s “official duties” as applying to all interactions with students and colleagues in relation to school matters or activities. Under the Garcetti case, if an employee is speaking pursuant to his or her official duties the speech is not protected, in large part because the employee is not speaking as a private citizen.  Nebraska has state statutes which affirm this concept for public employees.

To determine whether an employee is speaking about a matter of public concern, courts look to the “content, form, and context” of the statement, along with the employee’s motive in making the statement.  Connick v. Myers, 461 U.S. 138 (1983). Speech related to a subject that would be of public concern is not protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest.  This means that if an employee speaks out of private interest about a personal grievance with school administrators, the speech is not protected under the First Amendment. This is true even though the public has an interest in the administration of the school district, and even if the statement is not made pursuant to the employee’s official duties.

If an employee is speaking as a private citizen regarding a matter of public concern, a public employer can only take action against the individual if it has an adequate justification for treating the employee differently from any other member of the general public. Courts will balance the school’s interest in maintaining order and efficient operations against the liberty interests of the employee to determine if an adequate justification exists.

Nebraska’s Rule 27

Certificated employees in Nebraska must also be mindful that adverse action can also be taken against their certificate for inappropriate speech.  

Rule 27 of the Nebraska Department of Education imposes standards for professional practices of all certificated employees.  Several of these standards could apply in situations where a staff member inappropriately engages in political or partisan activity, including:

• The educator shall permit the student to pursue reasonable independent scholastic effort, and shall permit the student access to varying viewpoints.  (004.03A).

• The educator shall not deliberately suppress or distort subject matter for which the educator is responsible.  (004.03B).

• The educator shall not use institutional privileges for private gain or to promote political candidates, political issues, or partisan political activities.  (004.04B).

• The educator shall, with reasonable diligence, attend to the duties of his or her professional position.  (004.04F).

• The educator shall use time on duty and leave time for the purpose for which intended.  (004.06G).

• The educator shall allow others who old and express differing opinions or ideas to freely express such ideas.

• The educator shall not show disrespect for or lack of acceptance of others.  (005.09C). 

Educators in other states must also be aware of their state’s licensure laws related to professional conduct.  You should check for relevant information from both your state education agency and any applicable state laws.

Nebraska’s Political Accountability and Disclosure Act

If professional consequences weren’t enough, those inappropriately engaging in political activity while working for a school or using school resources (like their school-issued computer) can violate Nebraska’s Political Accountability and Disclosure Act.  Section 49-14,101.02(2) makes clear that a school official or employee may not use personnel, resources, property, or funds under his or her official care and control for the purpose of supporting a political candidate or a ballot issue. “Candidate” and “ballot issue” are defined broadly and include most candidates for state and federal office and issues that may show up on the ballot.  The Nebraska Accountability and Disclosure Commission (Commission) has explained that this means a school employee may not engage in political activity during office hours or while otherwise performing their duties. The Commission has fined school employees and other public employees for violating these prohibitions.

Again, Nebraska is not alone in having a set of state laws which limit public employees’ ability to use public resources in support of their personal political views.  Educators who are not in Nebraska should familiarize themselves with their state’s laws on political accountability and the use of public time and resources.  

Conclusion

Schools can take disciplinary action against any employee for engaging in speech that is not protected, including political speech that may show up in the classroom or on social media.  However, the laws and circumstances surrounding these types of First Amendment issues are rarely clear. The Nebraska Department of Education can also take disciplinary action if a teacher’s speech violates Rule 27’s standards for professional conduct.  Finally, school employees can be fined or otherwise sanctioned by the Commission for using school resources to further partisan goals.

We know you didn’t start the fire, but if you need help trying to fight it, we recommend you call your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan. If you want to reminisce about Billy Joel, Ho Chi Minh, or the Rock and Roller Cola Wars with someone who was actually alive when the song was released, you’re limited to Karen, Steve, Bobby, or Coady.

Bueller? . . . Bueller? . . . Bueller? . . . Tackling Truancy While Complying With FERPA

NOTE FROM KSB: We know the NSEA recently sent out a survey to its membership related to Senator Groene’s LB 147, which addresses the use of seclusion and restraint by staff.  Although this blog post is about attendance and student records, the NSEA’s survey asks its members to relay experiences they have had with violent and disruptive students.  This touches on many of the same FERPA concerns, especially in smaller communities where relaying an experience could indirectly identify the student involved and the contents of the student’s records.  We have prepared this statement you can share with staff to remind them that although filling out the survey is their prerogative, they cannot directly or indirectly disclose personally identifiable information about students.

Now, onto the blog post and attendance...

Last week, Karen and Jordan had the pleasure of presenting at NCSA’s State Principals’ Conference, and the slides from that presentation can be found here.  They talked about school district interactions and relationships with local law enforcement, and discussed the role of confidentiality in working with these agencies.  It quickly became clear that lots of schools are involved in innovative collaborations with local law enforcement and other related juvenile justice agencies to address excessive absenteeism.  As schools take advantage of these resources to improve the educational outcomes for their students, we want to make sure they also have the knowledge and resources necessary to maintain compliance with state and federal law. 

Application of FERPA to Attendance Records

Under the federal Family Education Rights and Privacy Act, public schools may not disclose personally-identifiable information from a student record that is maintained by the school district unless the disclosure is pursuant to written parental consent or an exception to that consent.  A student record includes 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). A student's attendance record is FERPA-protected information.  That means schools must either have parental consent or find an exception to FERPA before disclosing attendance records.  

Specific Attendance Records Are NOT Routine Directory Information

FERPA does allow the disclosure of “routine directory information” – such as the student’s name, grade, and home address – as long as parents are given the ability to opt out of the directory.  Unfortunately, attendance records may not be disclosed as routine directory information. Both courts and the U.S. Department of Education have held that the directory information exception does not contemplate the disclosure of specific dates of absence or attendance.  See, e.g., Hirt v. Unified Sch. Dist. No. 287, 308 F. Supp. 3d 1157 (D. Kan. 2018); F.A.T. v. State, 690 So. 2d 1347 (Fla. Dist. Ct. App. 1997).  Although schools can disclose the span of time a student was enrolled more generally, such as “from August 2014 until May 2018,” they cannot disclose the specific days in that range when a student was or was not at school.  

Local Law Enforcement, Outside Juvenile Justice Agencies, and SROs Do Not Usually Meet the School Official Exception

FERPA does allow schools to disclose attendance records to outside agencies that qualify as a school official with a legitimate educational interest.  This means, for example, that schools can report student attendance to the Nebraska Department of Education as part of AQuESTT reporting. Unfortunately, it is rare that a local law enforcement agency, an outside juvenile justice agency, or school resource officer will meet the requirements to be recognized as a “school official” under this exception.  See, Letter to Jene Watkins, Indian Creek Local School District (FPCO 2008);  Letter to Ms. Bresler and Mr. Molinaro (FPCO 2006).  

In order for an outside agency to be considered a school official, the  agency must: (1) perform an institutional function for which the district would otherwise use employees; (2) be under the direct control of the district with respect to the use and maintenance of the education records; and (3) be subject to the provisions of FERPA restricting the use and redisclosure of the records.  Finally, any disclosure of records to a school official must be pursuant to a legitimate educational interest.

Based upon these requirements, there are several reasons why local law enforcement and other outside agencies rarely satisfy the school official exception.  At the outset, if probation or diversion officers are accessing student attendance records to see if a student is meeting his/her obligations under those programs, they are accessing the student’s records for their own legal purposes, not an institutional educational function.  The U.S. Department of Education advises that, generally, a school official “has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility [to the school district].” FERPA General Guidance for Students (2015).

Not only must the outside agency have a legitimate educational interest in fulfilling an institutional function, but it must also be under the direct control of the school district. In the Discussion of the 2008 Amendments to the FERPA Regulations, which served as a preamble to the final publication of the regulations, the U.S. Department of Education provided the following explanation:

“The term direct control . . . is intended to ensure that an educational agency or institution does not disclose education records to an outside service provider unless it can control that party's maintenance, use, and redisclosure of education records. This could mean, for example, requiring a contractor to maintain education records in a particular manner and to make them available to parents upon request. . . This includes ensuring that outside parties that provide institutional services or functions as "school officials" . . . do not maintain, use, or redisclose education records except as directed by the agency or institution that disclosed the information. . .  [O]ne way in which schools can ensure that parties understand their responsibilities under FERPA with respect to education records is to clearly describe those responsibilities in a written agreement or contract.”

Consequently, if a school district wishes to disclose records to an outside agency pursuant to the school official exception, we believe they should only do so pursuant to a clearly written contract or memorandum of understanding that offers the school district strict control over the outside agencies’ use, maintenance, and redisclosure of the records.  Further, the outside agency must agree that they will not use or redisclose the records in any unauthorized manner. This means, for example, that if the local law enforcement agency received educational records pursuant to this exception, they could not use that information to prosecute a student or parents for truancy.  Unfortunately, schools may find outside agencies reticent to agree to these terms (and we understand why).

The Records of a Law Enforcement Unit Are Not Subject to FERPA

As discussed in our prior blog post found here, school districts may designate any office or individual (including an SRO or school employee) as its “law enforcement unit” and disclose records which qualify as law enforcement unit records to other entities (like local police departments or juvenile justice agencies) at the school’s discretion.  The records created by a law enforcement unit for a law enforcement purpose are not subject to the confidentiality requirements of FERPA, and may be disclosed without consent or satisfying an exception to consent.

A school district could develop practices and procedures whereby attendance records, or something similar like building entry logs, were created by a law enforcement unit for a law enforcement purpose.  Such records could be disclosed to outside agencies at the district’s discretion. Schools should be aware, though, that designating a law enforcement unit is a complicated process that should not be undertaken lightly.  This process would include amending board policy, providing notice to parents and students, modifying existing and future MOUs or agreements with local law enforcement for SROs, and developing strict record-keeping practices.

So what does this mean for you?

In summary, schools must be mindful that the provisions of FERPA protect the confidentiality of student attendance records.  This means that these records should not be disclosed without written consent from the student’s parent unless an applicable exception is fully satisfied.  The school official exception may apply in limited circumstances if the district maintains control over the maintenance, use, and redisclosure of student records the records are only used for legitimate educational purposes by someone serving an institutional function.  Additionally, records created by a law enforcement unit are not subject to the same confidentiality requirements, but this exemption requires the district to undertake a careful and deliberate process to designate a law enforcement unit.

We do not want this information to make schools feel as though they must discontinue any relationships or collaborations with outside agencies to address attendance and truancy.  However, the terms of these relationships should be memorialized in a formal, written agreement that appropriately addresses all aspects of the parties’ relationship, including the disclosure, use, and re-disclosure of student records.  As the relationship is formalized, we may realize that some changes to operations are necessary to ensure technical compliance with the law, or to place the district in the best position to demonstrate compliance. If you already have an agreement in place, it should be reviewed by your school’s attorney to ensure that it remains effective under the most recent guidance from the U.S. Department of Education.  

If your school is interested in providing outside agencies or officials with access to student attendance records to address truancy, we recommend you discuss it with your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

It’s Time to Evaluate your Evaluations: Bridging the Gaps in Confidentiality, Public Records, and Open Meetings Laws when Boards Conduct Evaluations

Many Nebraska boards of education conduct their superintendent evaluations at their regular December meetings.  Every year we get calls on the “best” or most legally compliant way to conduct these evaluations. This year we’ve fielded a number of calls specifically about the confidentiality of administrator and superintendent evaluation documents (drafts and the “final” evaluation) that are discussed by the school board at a public meeting.  

While state law is not exactly clear on the matter, we believe that employee evaluations are personnel records that cannot be disclosed to unauthorized individuals without the employee’s consent, even if the evaluations are shared and discussed in open session of a board meeting.  This means that they would not be subject to disclosure under Nebraska’s public record statutes, because they are not “public records.” Here’s why...

The Tangled Web We Weave

We start with the premise that, under the public records statutes, any interested person can examine or obtain a copy of a public record upon request.  Neb. Rev. Stat. § 84-712.  This then requires us to define what constitutes a “public record.”  The Nebraska statute defining a public record provides: “[e]xcept when any other statute expressly provides that particular information or records shall not be made public, public records shall include all records and documents . . . of or belonging to” any political subdivision, including school districts.  Neb. Rev. Stat. § 84-712.01 (emphasis added). Thus, if another “statute expressly provides that particular information or records shall not be made public,” such information or records are outside the statutory definition of public records and not subject to disclosure.  So, does such a statute exist protecting the confidentiality of superintendent (and other school employee) personnel records, including evaluations?

Yep!  Section 79-8,109 states: “No other person except school officials while engaged in their professional duties shall be granted access to [a school personnel file], and the contents thereof shall not be divulged in any manner to any unauthorized person.” This is exactly the type of statute that “expressly provides” that records should not be disclosed under public records laws.  As a rule of statutory interpretation, where a statute specifically addresses an issue (as the personnel record statute does), it takes control over another statute that may generally apply (like the public records statutes).  It’s even clearer in this case because the public records laws state plainly that you do not disclose records if any statute “expressly” prohibits disclosure.

Taken together, these statutes mean that the school board may discuss a Superintendent's evaluation at a board meeting without the instrument becoming  a public record. In fact, the district must withhold the record from a person submitting a public record request unless the affected administrator, teacher, or employee authorizes disclosure in writing. 

Discussing the Evaluation in Closed Session

While Section 79-8,109 prohibits disclosure of the records in a personnel file, this does not necessarily mean that discussion of the evaluation may take place in closed session.   Section 84-1410 provides that:

“Any public body may hold a closed session by the affirmative vote of a majority of its voting members if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting. . . Closed sessions may be held for, but shall not be limited to, such reasons as . . . [e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting.”

(Emphasis added).

The Nebraska Attorney General’s Office (AG) has taken the position that boards should not go into closed session merely because issues warranting a closed session might arise.  Instead, the AG  has indicated that it interprets this statute as permitting the evaluation of personnel in closed session only if the discussion will include information that is so negative or damaging that a closed session is clearly necessary to avoid needless injury to the employee’s reputation. See File No. 09-M-154; Scottsbluff Pub. Schs. Bd. of Ed., February 19, 2010 (Board failed to clearly show that closed session was necessary where evaluation was overall “very favorable”.)  Consequently, if the evaluation is wholly positive, it must take place in open session. Even if an aspect of the evaluation may be negative, the evaluation must still take place in open session if the Superintendent requests it to occur in open session.

We know how complex it has become to ensure compliance with Nebraska’s Public Records and Open Meetings laws, especially when the confidentiality of employee records is implicated. If you have any questions, please don’t hesitate to call your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

Special Education Webinar - Help Us Pick the Content!

Every year, we seek feedback from our clients on presentation topics they'd like to see during our upcoming webinars and other conference presentations. Every year, we get something like this: "More special education!" but no specific aspects of special education. We hear you!

The KSB Webinar series turns its focus to special education next Tuesday, November 12 (if you haven't, you can register here), and we want your input. We have a list of topics we've saved up, and we want to know if you have other areas of special education you'd like to learn more about. We plan to use this to inform our webinar content for next week, but we also plan to use it as we select topics for other conferences throughout the year. It should be quick and painless, and we appreciate you helping us out!

SURVEY HERE

If you are already registered, you will receive the Zoom link and materials on Friday.

What are you so afraid of?!

Snow is falling, the Huskers are losing, and hordes of small,  candy-crazed monsters are about to descend upon us! Indeed, there are plenty of things to be afraid of when Halloween hits – but the celebration of Halloween in your school doesn’t have to be one of them.  As a couple short stories from Steve’s favorite holiday remind us, the First Amendment isn’t always that scary. 

The First Amendment and Student Dress & Appearance

It was October 31, 1988. Steve Williams was a senior in high school, and his mom stopped him on his way out the door to school.  Steve was wearing his usual Halloween costume (zombie-nurse, of course), but his mom was concerned that the costume’s skirt was inappropriate for school.  In fact, the skirt fell far short of the “finger-tip” rule that Steve’s school followed. When she voiced her concerns, Steve quickly retorted, “It’s a free country, mom! And no one can stop me from expressing myself. Not you, and definitely not the school!”

Was Steve right? Do students have the right to celebrate their favorite holiday in their costume of choice, no matter how disruptive or distracting it may be? Fortunately for school administrators (and Steve’s classmates) the answer is a resounding no!

The First Amendment protects the freedom of speech and expressive conduct.  In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court of the United State acknowledged that students have some First Amendment Rights to free expression while at school.  In Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), the United States Court of Appeals for the Eighth Circuit applied those First Amendment rules to student dress codes.  However, both courts recognized that a student's right to free expression while at school is limited, and that administrators may take appropriate steps to curtail student dress and appearance that interfere with the educational environment. 

In fact, school administrators are afforded “comprehensive authority” to regulate student expression and activity that actually does, or is reasonably forecasted to, “materially and substantially interfere with the work and discipline of the school.” Tinker, at 507, 513.  In Tinker and Bishop, the courts explicitly distinguish the regulation of non-disruptive forms of speech (such as prohibition on political buttons) from the regulation of disruptive forms of dress (such as a minimum skirt length).  While the former is an inappropriate restraint on speech under the First Amendment, the latter is a necessary authority of school administrators tasked with maintaining an orderly educational environment.

Haunted Halls and the Establishment Clause

When Mrs. Williams reached Steve’s school to bring him a change of clothes, she was horrified to find that the school was decorated with what she called “symbols of the occult.”  According to her, the school was promoting the worship of Satan and the occult in in violation of the First Amendment’s establishment clause.  Could she bring suit against the school and force it to remove the decorations?

The answer, again, is no.  It is true the Establishment Clause of the First Amendment limits schools in how they celebrate traditionally religious holidays like Christmas.  However, the courts have been skeptical of claims that Halloween displays are school endorsements of religion. Even though the Halloween decorations may depict images that in some contexts relate to a religion or faith, they are not distinctly religious objects that invoke scrutiny under the First Amendment. The Supreme Court stated in Lee v. Weisman, 505 U.S. 577 (1992) that:

“The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.”

“By its participation in these Halloween festivities, the school board does not send an unmistakable message that it supports and promotes Wiccan beliefs.” Guyer v. Sch. Bd., 634 So. 2d 806, 809 (Fla. Dist. Ct. App. 1994).  

Conclusion

Though material and substantial disruption is the goal of many students on Halloween, schools should feel confident in enforcing rules and regulations necessary to avoid that horror.  Schools should also feel safe to leave the broom, cauldron, and witch decorations up without concern that it is an impermissible endorsement of religion. While the First Amendment is often a rule of common sense in schools on Halloween, don’t be afraid to share any fears about student speech – or any other issues – with your school’s attorney, or call Karen, Bobby, Steve, Coady, or Jordan.  Just make sure that when you talk to Steve, you check to see whether he is wearing his zombie-nurse costume before you make the mistake of Zooming or FaceTiming him. 

Athletic Opportunities Under Title IX: Don’t Just Sit Where You Stand!

Schools around the country are facing increasing demands that they fully comply with Title IX’s obligation that they offer equal athletic opportunities for girls and boys.  A district in Utah has been sued by a group of girls seeking to force the high school to add a girls’ football team. A school in Alabama recently settled a lawsuit claiming that the district treated male athletes better than females.  Chicago Public Schools is still struggling to comply with a 2015 settlement with the Office of Civil Rights that required the district to add 12 girls’ sports. For administrators and board members, the echoes of some Title IX presentations should start to rattle around your thoughts.  

School leaders  know they should take Title IX into consideration when they make decisions about school sports, t, but don’t feel confident that their schools are (or are not) complying with Title IX.  But, it doesn’t have to be this way!  Schools can take advantage of the safe harbors that are available and analyze their Title IX compliance in offering equal athletic opportunities.

Knowing where you stand—and making informed decisions—is always more prudent than guessing on your compliance.  Even if your district is not currently considering program changes, expansions, or co-ops, your Title IX compliance obligation is ongoing.  Assessing your compliance on a routine basis is not only a good idea, it’s legally required. As you’ll see below, even if things have been going well, factors outside of your control like enrollment demographic shifts and changes in students’ interests affect your compliance in real time.

Title IX prohibits education institutions that receive federal financial assistance from discrimination “on the basis of sex.” .  One consequence of Title IX is that public schools must provide equal athletic opportunities for both boys and girls in interscholastic, club, or intramural activities.  34 C.F.R. § 106.41(c). The federal government has articulated three separate “safe harbors” that schools can use to demonstrate that they are effectively accommodating the interests and abilities of both boys and girls.  A school can demonstrate compliance by showing:

1. The athletic participation opportunities for boys and girls are provided in numbers substantially proportionate to their respective enrollments; OR

2. The school’s history and continuing practice of program expansion is demonstrably responsive to the developing interest and abilities of the underrepresented sex; OR

3. The interests and abilities of the underrepresented sex have been fully and effectively accommodated by the present program.

By satisfying just one of these independent tests, schools can show that they are compliant.  There is no priority for one factor over another, but most often the analysis in court cases and OCR investigations focuses on the proportionality prong.  In our experience, analyzing whether your school is providing substantially proportionate athletic opportunities to both boys and girls is a good, objective place to start.  However, if that analysis reveals that one sex is underrepresented, we recommend next examining whether a school’s sports programs are effectively accommodating the interests and abilities of the underrepresented sex.

We have assisted many school districts in analyzing their Title IX compliance in athletic opportunities under these tests..  We can help you identify the relevant information, analyze your current proportionality, and provide advice on your Title IX compliance.  We can also help you anticipate how a certain decision that you may be considering (e.g., whether to add or drop a team, change roster spots, co-op with a neighboring district, etc.) might affect your Title IX compliance.  If you are interested in knowing where you stand—and gaining the ability to make informed decisions for your school sports—contact the attorneys at KSB School Law at (402) 804-8000 or ksb@ksbschoollaw.com

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.