Q&A with KSB, Round 2 - THIS AFTERNOON!

Big Things Happening Today...

When: Tuesday, March 17, 2020 at 3:00 PM CST

Where: ZOOM (Info below)

What: Q&A over COVID-19 Issues

Our first ZOOM webinar discussion of COVID-19 issues on Friday seems like a year ago! We have had several board members and administrators ask if we’d hold another, in light of the events of the last several days, closures of all schools by Friday, and what, exactly, you need to consider as you plan for the coming weeks (and maybe months).  We’ve spoken with NDE, ESU special education staff, and others to try to stay up on the most recent guidance and recommendations, in light of the legal obligations.

We also want to know your questions in advance!  We’re happy to take them in real time on the webinar, as well, but if you have questions now please put them into this Google Doc.

This video is about My Movie 3

Protecting Patient Zero - Maintaining Student Confidentiality While Responding to COVID-19

If you tuned into our informational webinar or received advice from your school attorney, you know that one of our favorite answers to coronavirus questions is “talk to your local public health officials.”  You also likely heard about how important it is keep your school community informed with the status of your plans and preparations to respond to the novel coronavirus.  Communications with these stakeholders are central to an effective response supported by the community, but at the same time schools must be mindful of their obligation to maintain the confidentiality of student records and information under state and federal law. 

FERPA (Not HIPAA) Applies to School Records  

It is important to remember that The Family Educational Rights and Privacy Act (FERPA) and state student record laws govern the confidentiality and disclosure of education records and treatment records maintained by a school or other educational institution. HIPAA, which applies to medical institutions and their maintenance of medical records, does not apply to the records of a school as long as the use of the records is for educational decisions.  This was explained at length in joint guidance issued by the U.S. Department of Education and the Office for Civil Rights at the U.S. Department of Health and Human Services, which can be found here.

Maintaining Student Confidentiality

FERPA is administered and enforced by the U.S. Department of Education’s Student Privacy Policy Office (SPPO, formerly the FPCO).  The FERPA regulations, found at 34 C.F.R. Part 99, require the protection of the privacy of students’ education records and afford parents and eligible students certain rights to inspect and review education records, to amend these records, and to consent to the disclosure of personally-identifiable information (PII) from education records. FERPA prohibits the disclosure of PII from education records without written consent, unless an exception to consent applies.  

An education record is any record that directly relates to a student and is maintained by an educational agency or institution. 34 C.F.R. § 99.03. An education record can either be in “print or computer media.”

This means FERPA would determine whether or not your school nurse could share information she collected about a student with county health officials.  This also means that, unless an exception applies, written parental consent is required prior to disclosing such information. Earlier this week, the SPPO released guidance to schools responding to the novel coronavirus in the form a FERPA & Coronavirus Disease 2019 (COVID-19) Frequently Asked Questions (“FAQs”), which can be found here.  The FAQs were intended to assist school officials in working with public health officials while complying with the requirements of FERPA.

Sharing Information with Health Officials

While consent is generally required prior to disclosing PII from a student’s education records, an exception applies if a school determines, based upon the totality of the circumstances, that there is an articulable and significant threat to the health or safety of the student or another individual necessitating disclosure.  This is often referred to as the “emergency” exception to consent.

The FAQs document empowers schools to use this exception as appropriate to share information with health officials.  It provides:

If an educational agency or institution, taking into account the totality of the circumstances, determines that an articulable and significant threat exists to the health or safety of a student in attendance at the agency or institution (or another individual at the agency or institution) as a result of the virus that causes COVID-19, it may disclose, without prior written consent, PII from student education records to appropriate officials at a public health department who need the information to protect the health or safety of the student (or another individual). Public health department officials may be considered “appropriate parties” by an educational agency or institution under FERPA’s health or safety emergency exception, even in the absence of a formally declared health emergency. Typically, public health officials and trained medical personnel are among the types of appropriate parties to whom PII from education records, may be non-consensually disclosed under FERPA’s health or safety emergency exception.

The document further empowers schools to rely on the opinions of local public health authorities in determining whether there is a significant, articulable threat to students.  It states, “If local public health authorities determine that a public health emergency, such as COVID-19, is a significant threat to students or other individuals in the community, an educational agency or institution in that community may determine that an emergency exists as well.” 

Additionally, the U.S. Department of Education has emphasized that a school’s decision to release information pursuant to the emergency exception will not be second guessed.  In fact, 34 C.F.R. § 99.36(c) reads as follows:

If, based on the information available at the time of the determination, there is a rational basis for the determination, the Department will not substitute its judgment for that of the educational agency or institution in evaluating the circumstances and making its determination.

Sharing Information with the Public  

While the health or safety emergency exception would permit disclosure of PII to health officials, it would not permit disclosure of PII to the general public.  According to the FAQs, schools may generally release information about a student to the school community “only if that information is in a non-personally identifiable form.”  In releasing information, the school must ensure that the student’s identity is not personally identifiable, either directly or indirectly considering all reasonably available information.  

Conclusion

Fortunately, FERPA provides schools the discretion to disclose student information to appropriate officials as necessary to combat significant risks posed by the novel coronavirus.  In communicating with the public, though, schools must be mindful of a student’s right to confidentiality and only disclose de-identified information. If you have any questions about complying with FERPA, or any other legal issue, we recommend you contact your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

You Say You Want a RESOLUTION, Well, You Know! School Board Resolution, Authority, and Considerations under COVID-19

All of KSB’s guidance, sample documents, and links to key agency guidance can be found here, at our dedicated COVID-19 page: ksbschoollaw.com/covid19

We’ve had many requests for the webinar recording, which you can access directly from our COVID-19 site, or by following this link: KSB COVID-19 WEBINAR

During KSB’s impromptu COVID-19 webinar on Friday, March 13, 2020, we proposed to circulate a sample resolution which would give the superintendent the authority to take non-discretionary actions in the event of a possible disclosure.  There is also an optional provision attempting to account for the staff leave and payment issues we discussed. You can access that resolution here, and as always, you should consult with your school district’s attorney and receive advice prior to adopting a resolution.

Your board may also want to consider a variety of additional issues in anticipation of a possible school closure.  We have tried to come up with a list of the key COVID-19-related issues your board may also want to consider. Where we have already provided guidance on these issues, we linked it below.  As always, you should consult your school district’s attorney on each issue, because your existing policies, contracts and other unique situations will require customization of these resolutions for your district:

• Leave considerations for certificated staff covered by the negotiated agreement.  As you know, the NSEA proposed an addendum to modify your negotiated agreement.  KSB has also posted a modified version which requires staff to use leave provided by your negotiated agreement.  Here is our update about both addendums, your options, and other considerations.

• Leave considerations for classified staff and certificated staff not covered by the negotiated agreement.  Upon request, KSB or your school’s attorney can work with you on documents you may need to provide any necessary pre-closure leave and post-closure continuation of pay and benefits to employees not paid by law.  The board could consider a motion or resolution authorizing the superintendent to sign these agreements, provide paid administrative leave, or implement additional leave.

• Authority to suspend, cancel or reschedule certain events, such as prom, graduation, and school trips.  Although we believe that the superintendent has the authority to take these steps without formal board action, it may be helpful politically if the superintendent has formal board authority to take these steps since they will likely be unpopular with at least some members of your community.  Here is guidance provided by Nebraska DHHS regarding closures.   It specifically suggests not to hold events with an expected attendance of 250 or more people prior to community transmissions and to limit gatherings to 20 or fewer after community transmissions have begun.

• Authority to pay other non-discretionary claims.  In the event of a prolonged closure, the board may want to give the superintendent authority to make certain payments even if the board cannot or does not meet—for example service payments on a bond or payments to food vendors who are still providing items for the school’s food program.  The more specific this grant of authority is from the board, the less likely you will be to face a challenge from a disgruntled patron in the future. 

• Authority to assign staff as needed prior to a closure, during a closure, and after a closure.  Again, although superintendents already have the authority to assign staff as needed, this may be politically useful and will signal that staff assignments will be both unpredictable and may change without much notice.  This could include assigning staff to perform certain duties at home (although be mindful that such an assignment will almost certainly convert the employee’s leave day to a duty day.)

• Authority to hire additional classified staff or contract for sanitation and other services as needed.  Many administrators have asked about authority to hire staff or contract for services in the event deep cleaning or other services are needed due to COVID-19.  Most districts already have a policy conferring classified staff hiring authority to the superintendent or his or her designee, and a policy outlining the superintendent’s ability to contract for services.  However, a resolution specifying this may be appreciated by your administrators.

• Waiver of doctor's note requirements for student absences related to illness.  Many schools require a note from a physician after student absences last for "X" number of days.  Given the testing limitations for COVID-19 and the public policy desire for anyone sick to stay home, your board and administration should consider suspending those types of requirements under your mandatory attendance policies for the remainder of the year.  A simple motion vote could accomplish this if it is on your board's agenda.

There are certain duties which we believe that the board cannot simply delegate to the superintendent.  Our quick, non-inclusive list of those items includes the following:

• Authority to hire and/or discharge certificated staff.  By statute the board must take these actions.  This includes entering into a contract with administrators.

• Authority to waive or change credit hour requirements for graduation.  Again, this is a statutory function of your board.  Although we believe you will eventually be called upon to allow your seniors to graduate with a truncated set of credits and classes, the board will be the one required to take that action.  

• Authority to open and select bids, initiate a bond or override election, or amend the district’s budget.  These are core board functions that, by statute, cannot be delegated by the board of education.

• Authority to modify your negotiated agreement.   The board must approve negotiated agreements, so although the board can approve an addendum regarding leave, it cannot delegate to the superintendent the authority to modify the negotiated agreement without board approval.

We hope these considerations are helpful.  If you have any questions, please contact Karen, Steve, Bobby, Coady, or Jordan, or contact your school district’s attorney.

So You Want to Skip Your Board Meeting… Coronavirus and Board Governance

*******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*******

We’ve seen many school districts close their doors temporarily in response to the COVID-19 or coronavirus.  Many other districts are thinking about doing the same. We wanted to share our thoughts about some of the questions we’ve heard about how to take certain actions if the school is closed and board meetings are cancelled.  

May a School Board Hold a Meeting by Video or Telephone?

No!  We can hear you now.  “But I know lots of organizations that hold meetings this way.”  And you’re right. All state agencies, boards, commissions, councils, and committees may hold such meetings.  Entities formed under the Interlocal Cooperation Act and the Joint Public Agency Act may hold meetings electronically.  So can the ESUCC, community colleges, and a couple of other public entities. But school districts are not on the list. Schools may allow any member of the public to attend a meeting by video or telecommunications equipment, but that rule does not include board members.  As Judge Smails put it 40 years ago, “You’ll get nothing and like it!”

If We Hold A Meeting, May the School Force Patrons to Watch the Meeting from a Separate Room by Video?

The public has the right “to attend” school board meetings.  As indicated above, schools may also allow any member of the public to attend a meeting by video or telecommunications equipment.  But we cannot find any authority which would allow you to force patrons to “attend” the meeting by watching the meeting on a video screen in another room.  If your region has a significant COVID-19 outbreak, please contact your school attorney before taking any steps restricting the public’s ability to attend your meetings. 

May We Delegate Certain Authorities and Powers to the Superintendent or Another Person?

The ability of the school board to delegate its duties to employees or others typically depends on the type of duty involved, the statutory language, and legislative intent.  The general rule is that a governmental board may not delegate its powers involving the exercise of judgment and discretion, but duties which are purely ministerial and executive may be delegated.  We can hear your now: “Save your legal mumbo-jumbo for the next guy. What can our superintendent do on behalf of the district if the board doesn’t meet?” Unfortunately, the line between discretionary functions and ministerial or executive functions isn’t always clear.  Our best advice is that the board likely CAN delegate the authority to make regular payroll (because that is ministerial) but CANNOT give the superintendent or other staff member blanket authority to pay all claims and sign all contracts (because that would involve discretion).  

May the board lawfully delegate the authority to hire new staff members to the administrative team?  What about the renewal of existing staff contracts?

School boards are statutorily required to approve employment contracts for newly hired certificated staff.  That duty cannot be delegated. Employment contracts for certificated staff “rollover” and automatically continue for another year unless action is taken by the school board by April 15th (unless there is an earlier date required by employment contract, negotiated agreement, or school policy) to nonrenew, terminate, cancel, or amend them.  This authority also cannot be delegated to an employee.  

If we hold a special meeting, can we go into closed session to talk about all of this stuff NOW, and plan for what we want to do based on staff requests, parent requests, and possible school closures?

Maybe! The Open Meetings Act allows school boards to meet in closed session to conduct “strategy sessions with respect to collective bargaining.”  This would entitle the board to enter closed session to consider the proposed medical leave addendum put out by the NSEA, or another addendum or contract you have received from your legal counsel.  Outside of collective bargaining, there are no stated reasons in the law to permit a closed session related to coronavirus issues.

In general, we do believe you can use closed session for contract negotiations (such as with administrators or classified staff), for the same public policy reasons you can use closed session for negotiations.  You may also be able to enter closed session to receive and discuss legal advice, to avoid waiving the attorney-client privilege. However, before you do so you, you should check with your school or ESU legal counsel.

Can we skip a regular meeting in one or more months?

Technically, no.  Section 79-554 states, “Regular meetings shall be held on or before the third Monday of every month.”  However, the board is permitted to excuse absences of board members who may be sick, and you can hold a meeting with a simple majority of members: “In all meetings of a school board of a Class III school district, a majority of the members shall constitute a quorum for the transaction of business.”

In the event of mass closures or forced closures, we intend to reach out to the Nebraska Attorney General’s office for guidance on these questions.

Conclusion

As you can see, simply suspending the meetings of a board of education is not something that can be undertaken lightly.  As we understand the advice from public health officials, crowds of more than 10-20 people should be avoided. We think that likely means that your boards will be permitted to continue holding regular meetings, even if you do close your school for a period of time.  There’s a good argument that you should hold at least your regular meetings, which by statute are required monthly.

If you have any questions about your school skipping its regular school board meeting, we recommend you contact your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

KSB ZOOM Discussion: Coronavirus (COVID-19) and Related Legal Issues

When: Friday, March 13 @ 12:00 PM Central (Friday the 13th, we know...)

Where: ZOOM - CLICK HERE TO ACCESS THE RECORDED VIDEO OF THE WEBINAR

What: Cover legal highlights, answer questions, ask what else KSB can do to help schools through this fluid time

After the events of this crazy week, we're all on information overload.  We have tried to help with our COVID-19 Updates Page, but there's just no substitute for talking through complicated issues.  We're going to host a ZOOM discussion.  It will be an informal overview and discussion of all the guidance we've put out this week and the questions we've received since.  We'll cover employment issues, student issues, and specific questions we've received from many schools.  We'll then open it up for your questions and ask all of you what else we can do to help as you navigate the legal and practical issues around coronavirus.

Click here to join the ZOOM.

We'll also record this and can provide it to anyone who wants to watch it later.

No, You Don’t HAVE to Sign the Addendum!

*******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*******

Superintendent: Do we have to sign the addendum provided by our local union representatives?

KSB: No! It is only one of the options you have for dealing with coronavirus-related absences.

We have been contacted by many Nebraska school districts expressing interest in helping encourage teachers who may be showing early symptoms of COVID-19 to stay home from work to self-monitor their symptoms and/or self-quarantine.  One of the hurdles for some teachers choosing to stay home is that they may be out of sick leave or may not want to “burn” their limited sick leave.  

Toward that end, we did work with the attorneys from the NSEA to develop one possible addendum that school districts could make to their negotiated agreements to remove some of those perceived obstacles (i.e., not enough leave, an aversion to using leave, etc.) from a teacher staying home to help prevent the potential spread of the coronavirus.  The NSEA attorneys created the initial draft, which we appreciated, and KSB worked with the NSEA attorneys and others to revise it in order to include what we believe are some important protections for school districts that do want an addendum like this.

In short, the draft that the NSEA and its affiliate education associations may be proposing to you is only one option that your board of education can choose to pursue, among several options (including doing nothing!).

Although it may have been portrayed differently, it is not KSB’s advice that you should sign that addendum, and certainly not that you have to do so.  We simply provided our feedback on the option that the NSEA proposed to make it better for school districts, if they choose to go that route.

We have also been asked by many schools for a modified version which grants additional medical leave to staff due to COVID-19 concerns that applies only after staff have used their sick leave or PTO leave intended to cover illness provided by your negotiated agreement.  You can access the original addendum provide by the NSEA and a modified addendum requiring use of sick leave first, by clicking these links:

Addendum 1 -- NOT Requiring Use of Paid Leave (from the NSEA)

Addendum 2 -- REQUIRING Use of Paid Leave First (modified by KSB)

KSB School Law can help you draft a specific addendum that meets the specific goals of your board (and yes, any addendum will require board approval).  The 2 Addenda linked above are only 2 of many options you have. Also, keep in mind these only apply to certificated staff who are members of the collective bargaining unit.  This addendum does not address leave issues for administrators, specialists, and classified staff members who are not covered by your negotiated agreement.

If you have any questions about leave for teachers or other staff in response to the coronavirus, we recommend you contact your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

Coronavirus Updates are Up!

As we mentioned in a previous post, KSB School Law intends to share resources with our clients and others regarding the most common legal issues schools and ESUs should consider related to the coronavirus.  We have updated information regarding Employment Issues and Food Service Issues. You can find that information here. 

Let Them Eat Cake!

*******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*******

Over the last several years, schools have been asked to fulfill more and more of their student’s needs beyond educational instruction.  Not only are schools a primary provider of mental health services for school-age children, but they also offer several programs to address the nutritional needs of students at risk of hunger.  It’s no surprise, then, that many are concerned that epidemic-related closures will disrupt the flow of food to children in need. As your school prepares to respond to a possible outbreak, here’s what you should know, and what questions you should be asking, about the effects school closures could have on your food programs and students.

Guidance and Flexibility from the USDA

Over the last several years, the USDA has shown flexibility in assisting state and local educational agencies in providing food to students in need during emergency closures.  In 2019, for example, the USDA waived various meal program requirements for several Nebraska schools in light of widespread flooding. 

The USDA also provides regularly-updated guidance, which can be found here, advising school food authorities (SFAs) participating in the National School Lunch Program (NSLP), School Breakfast Program, Child and Adult Care Food Program (CACFP), and the Summer Food Service Program (SFSP) of their ability to operate the SFSP and NSLP Seamless Summer Option (SSO) to maintain consistent food security to children in need during times of emergency closure.  

The Nebraska Department of Education (NDE) has submitted an application to the USDA for a waiver that would allow Nebraska SFAs to continue serving meals during an emergency closure through the SFSP.  The USDA granted such waivers to other states, such as Washington and California, and it is fair to assume that the Department will take similar action with respect to Nebraska. SFAs must notify NDE of their intent to provide meals during an emergency closure by completing the SFSP application, accessible via this web portal.

Additionally, the USDA will waive the 60-day requirement related to the submission of claims when emergency closures impede submission. 

Waiver of Congregate Feeding Site Requirements

Generally, the USDA requires SFSP meals to be distributed at “congregate feedings sites.”  This is based on the theory that students should eat meals together in safe, interactive environments.  However, upon request by NDE, the USDA will waive this requirement on a case-by-case basis where exceptional circumstances impose a barrier to congregate feeding.  According to recent press releases regarding emergency programs in California and Washington, the USDA has already provided such a waiver to these states affected by the novel coronavirus, allowing SFSP meals to be sent home with students.  That means Nebraska schools could anticipate being allowed to provide “grab and go” meals to students in the case of a school closure.  

Considerations Related to Food Service Providers

An emergency closure disrupting school food programs may also affect a district’s rights and obligations under agreements with their food service providers.  For example, the pricing structure underlying many agreements relies upon “assumptions” related to a minimum number of full-service days and anticipated demand.  Emergencies necessitating closures or stoppages of service are treated differently depending upon the specific contractual language used in your agreement. As your school considers the implications of an emergency closure, we strongly recommend you consult with your school’s attorney to review the terms of your food service agreement.  

Reassurance From Lunchtime Solutions Inc.

We know that many schools in Nebraska contract with Lunchtime Solutions Inc. as their food services provider.  Fortunately, Lunchtime Solutions has already reached out to reassure schools that it is prepared to plan for and provide meals during periods of emergency closures as deemed appropriate by the school.  We expect other food service providers would do the same, and are confident that any emergency food services program will be successful with the buy-in of these key partners.

Conclusion

While some expect more detailed guidance from the USDA to be forthcoming, we believe the currently available information gives schools valuable insight as they consider their response to an outbreak of novel coronavirus.  The USDA is flexible in working with schools responding to emergencies, and NDE is already working with the USDA to ensure Nebraska schools have the option to continue their food programs in some capacity. If you have any questions about the status and availability of the SFSP for your school, or how emergency closures would affect your rights and obligations under your contract with your food services provider, we recommend you call your school attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

It’s a “Close” Call Employment Issues in the Event of a School Closure

*******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*******

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.)  

If school districts are required to close schools in response to a novel coronavirus outbreak, there are multiple employment issues that will be implicated.

Certificated Staff Issues

Nebraska has a state law that specifically addresses the rights of teachers to be paid if schools close due to the outbreak of an infectious disease.  Section 79-8,106 of the Nebraska Revised Statutes provides: 

In case of epidemic sickness prevailing to such an extent that the school or schools in any school district shall be closed, teachers shall be paid their usual salaries in full for such time as the school or schools shall be closed.

We believe that this statute would apply if a school district closes due to an outbreak of COVID-19.  Regardless of whether the school closure is ordered by the governor or the board of education decides to close after conferring with their local health department, teachers will be entitled to their full salary and benefits while the district is closed.  

The real question under section 79-8,106 is what is the definition of a “teacher.”  Chapter 79 of the Nebraska statutes never defines that term. In section 79-101, the Unicameral defines the term “teach:”

(12) Teach means and includes, but is not limited to, the following responsibilities: (a) The organization and management of the classroom or the physical area in which the learning experiences of pupils take place; (b) the assessment and diagnosis of the individual educational needs of the pupils; (c) the planning, selecting, organizing, prescribing, and directing of the learning experiences of pupils; (d) the planning of teaching strategies and the selection of available materials and equipment to be used; and (e) the evaluation and reporting of student progress
….

Later, in section 79-824, the Nebraska statutes provide a definition of “certificated employee”:

(1) Certificated employee means and includes all teachers and administrators as defined in section 79-101, other than substitute teachers, who are employed one-half time or more by any class of school district;

We read sections 79-101 and 79-824 together to mean that any staff member who is employed half-time or more and who is entitled to plan instruction and assess student achievement qualifies as a “teacher.”  If your school is forced to close, your board of education will be required to pay all half-time or greater classroom teachers, guidance counselors, school psychologists, speech pathologists, occupational therapists, administrators, school nurses and media specialists.  Your board of education will not automatically be required to pay staff who work less than half time, regardless of whether they “teach.” 

Classified Staff Issues

Unlike teachers, classified staff have no statutory right to be paid if your school is forced to close.  Your district should begin considering now how it will want to treat classified staff in the event of a closure due to COVID-19.  No matter what a district does, the board is likely to be subject to criticism from the community. A board that decides to be frugal and not pay its staff can be criticized for not taking care of some of its most valuable employees.  A board that opts to pay classified staff could be targeted for being profligate with taxpayer dollars. That is why boards should start thinking about how they want to handle classified staff pay now in advance of the need to actually close school.  

We have identified a range of options that boards can consider in deciding how to handle classified staff pay during a school closure: 

Option No. 1: Pay classified staff nothing if they do not work.

Classified staff who are unable to work due to a school closure are not entitled to payment for their work under state or federal law.  Even if a classified staff member is ill and had sick leave available, the school will not have to pay that staff member if the school closes. 

Option No. 2: Allow classified staff to substitute accrued sick and vacation leave or compensatory time during a school closure. 

Some school districts allow classified staff to accrue both sick and personal leave.  Districts that are forced to close due to a COVID-19 outbreak may decide to allow classified staff to use their accrued paid leave during a closure.  Boards of education that decide to use this option should check with their school attorneys for the wording of a resolution that would allow staff to substitute paid leave during this school closure but not during other school closures (like the holiday or summer break).  

Option No. 3: Require/allow classified staff to work limited hours during a school closure. 

Some school districts may want to require or allow critical staff to work limited hours during a school closure.  School secretaries and custodians would be able to perform useful work, even if students are not in school buildings.  Boards of education that decide to use this option should check with their school attorneys for the wording of a resolution that would require critical staff to come to work and that is clear about how other classified staff such as bus drivers and paras will be treated during a school closure.  

Option No. 4: Pay all classified staff members some amount of paid leave in exchange for a “return to work agreement.” 

Many of the administrators we have conferred with want to provide some compensation to classified staff in order to ensure that they will not quit and find other work during a school closure.  But these same administrators are understandably reluctant to provide classified staff with unlimited paid leave regardless of the length of the closure. In this circumstance, the district could enter into a written agreement with each classified staff member to provide some level of paid leave in exchange for that employee’s promise to return to work when the school reopens or to return the payment made during the school closure.  This approach would allow the school district to retain its classified staff while avoiding legal and political issues related to giving away public resources. Boards of education that decide to use this option should check with their school attorneys for the agreements that could be used for this purpose.  

Option No. 5: Place all classified staff members on “paid leave” prior to closing the school district’s attendance centers. 

If a board of education wants to treat classified staff exactly the same way that it treats its teachers, the board could pass a resolution placing all classified staff on paid administrative leave prior to closing the district’s attendance centers.  This is the most legally risky option. Political subdivisions are not permitted to simply give away public resources. The Nebraska Supreme Court has held that the state constitution prohibits one group of taxpayers from being taxed for the benefit of another group. See e.g., Mann v. Wayne County Board of Equalization, 186 Neb.753, 186 N.W.2d 729 (1971).  Section 49-14,101 of the Political Accountability and Disclosure Act states in pertinent part:

(4) No public official or public employee shall use personnel, resources, property, or funds under that individual’s care and control, other than in accordance with prescribed constitutional, statutory, and regulatory procedures, or use such items, other than compensation provided by law, for personal financial gain.

The violation of § 49-14,101 is a Class III misdemeanor which carries a maximum penalty of a $500 fine, or three months imprisonment, or both.  

We do not believe that Nebraska school officials will be criminally prosecuted if they pay their classified staff during a school closure.  We do think that a school district that wants to pay its classified staff should confer with its attorney and carefully craft any resolution that the board adopts to achieve this payment.  

Health Insurance and Other Benefits

As you can imagine, the way that school districts elect to compensate classified employees (or not) during a potential school closure may also affect health insurance and other benefits, including how such benefits are paid for.  

For example, practically speaking, many districts pay for the entire cost of health insurance and then deduct the classified employee’s portion of health insurance premiums from the classified employee’s paycheck.  Other school districts make health insurance coverage available to classified employees, but the employee actually pays for the health insurance through some combination of employer contributions and employee dollars.  Still other districts may have other arrangements.

The extent to which a classified employee receives regular, reduced, or no compensation during a potential school closure will affect both the amount of funds available for insurance premiums as well as how such payments are actually made.  It will be important for districts considering school closures to think about the practical consequences for insurance and benefits--in addition to the leave and compensation issues--when considering the appropriate way for those districts to interact with classified staff on these issues.

Seeking COVER from COVID-19! Pre-Closure Employment Issues to Consider Now

*******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*******

As part of KSB’s ongoing coronavirus updates, we wanted to centralize the most common legal questions and issues we have seen related to employment issues that are present now, even if there is never a school closure.  We have another update highlighting potential legal issues in the event of a school closure, many of which will overlap with the discussion below.  You can find that update and the other KSB coronavirus updates by clicking here.

We have already received many great questions related to staffing and employment issues schools are dealing with now.

Should you waive your sick leave limitations and limits?  Should you not charge staff for sick leave taken due to quarantine?  One uniform suggestion from public health officials is that people who may be sick should stay home.  However, some staff members have very limited paid sick leave, and others may not want to use sick leave for what seems like a cold.  We have had many schools ask us if they should waive or suspend their sick leave policies in favor of “If you’re sick, stay home!”

School boards could allow staff to take leave as needed to avoid spread of coronavirus for a limited period of time -- a few weeks, a month or the the remainder of the year -- regardless of whether the staff member could otherwise power through or take sick leave.  Of course, some schools are also worried about staff abusing this type of leave. This option may not work for you, but it is an option to avoid having ill staff members attend school based on existing limitations to sick leave use or not having sufficient days to cover an illness or quarantine period.

For classified staff or other staff not subject to collective bargaining, the board has legal authority to enact a policy or resolution temporarily “suspending” enforcement of sick leave provisions with a simple directive: if you feel ill, stay home!  

For certificated staff subject to the collective bargaining agreement, the board of education cannot just unilaterally add a benefit like unlimited sick leave without first conferring with the union.  The board for a school or ESU could approach their local teacher’s association and sign an addendum which would modify your 2019-2020 negotiated agreement. The addendum could clarify that, for purposes of avoiding the spread of the coronavirus, staff members will be granted additional leave to stay home.  This could supplement existing sick leave or functionally serve as another type of leave that could be used instead of sick leave. We are in communications with the NSEA about what such an addendum would look like, though we want to emphasize KSB is not “recommending” this.  It is simply an option for you to consider.

How should you treat employee requests for leave or ask to take leave based on doctor’s orders, in light of your existing sick leave, FMLA, and ADA obligation?  Generally, a staff member who contracts coronavirus would be entitled to take sick leave.  Their leave likely would not qualify for additional leave under the FMLA, ADA, or other disability laws.  

However, the duration of any leave period, hospitalization, or complications due to the virus could be a different story.  Although these employees would almost certainly qualify for sick leave, they may also qualify for other forms of leave. These employees may be entitled to take for leave under the FMLA, ADA, and even your short- or long-term disability leave policies.  You should carefully scrutinize any request for leave from staff members due to the virus, whether they have coronavirus or are asking or told to quarantine.

What if the school or ESU wants to exclude a staff member or contracted service provider?  Instead of staff members making requests, you may find yourself in the position of wanting to send a staff member home or suggest a leave of absence as the employer.  For example, with schools on spring break throughout March, you may have staff members, service providers, and independent contractors who have traveled to affected areas or have contact with potentially affected individuals.  

If you have suspended your leave policies as discussed above, you can likely send an employee home because the leave is paid.  If you send an employee home, you will need to consider whether you can require the employee to use sick leave, whether you owe statutory compensation to a teacher, and whether things like the FMLA may also apply.  You should look at your employment contracts and your board policies on sick and administrative leave.

For non-employee service providers and other contractors (food service, transportation, etc.), you will need to check your contracts.  You should reach out to those companies and providers now and clarify expectations in the event one of your contractors must remove its employees from your school, or if you as the school feel compelled to say they cannot serve students due to possible coronavirus infections.

Should you expedite completion of staff evaluations?  The short answer here is YES!  By policy and state law, schools and ESUs have evaluation obligations.  Remember that state statute requires administrators to evaluate probationary certificated staff members (teachers and principals), once each semester.  You never know when any individual staff member may need to take leave or may be ordered to take leave by a doctor. If you do not get the second semester evaluation completed, you will not be able to recommend the nonrenewal of a probationary teacher’s or principal’s contract.  

You should definitely speed up your evaluation timelines and get them done as soon as possible, so any potential school closure or individual quarantine or illness does not cause you to miss your evaluation obligations.

Should you provide statutory notices earlier just in case school closures happen statewide or in your community?  There is no pandemic outbreak exception for meeting statutory deadlines to provide staff with notice of possible amendment, nonrenewal, termination, or cancellation of contract.  If you are considering issuing a notice, you should do so now or at least consider how you would deliver notice in the event of future closures.

If you normally provide “intent to return” letters or use renewal agreements for staff, you may want to consider issuing those earlier than normal.  However, keep in mind you cannot require them to be returned prior to March 15.

Are staff members who contract the virus due to school duties entitled to workers’ compensation leave?  Generally speaking, employees that contract the coronavirus are not eligible for worker's compensation claims.  Under section 48-101, worker's compensation is available "when personal injury is caused to an employee by accident or occupational disease, arising out of and in the course of his or her employment."  

Occupational disease is defined by section 48-151 to mean "only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment and excludes all ordinary diseases of life to which the general public is exposed."  

It seems that the coronavirus is an "ordinary disease of life to which the general public is exposed."  However, if an employee's course of work brought them into contact with the novel coronavirus based on exposure due specifically to serving students, and the general public in that community has not been exposed, the employee may at least make that argument.

Notably, in Murphy v. City of Grand Island, 274 Neb. 670, 742 N.W.2d 506 (2007), a healthcare worker brought a claim alleging that Hepatitis C constituted an “occupational disease”.  The Nebraska Supreme Court found that the employee offered insufficient proof that the disease arose out of and in the course of his employment.  However, the Court did not rule out the possibility that it could constitute an occupational disease. If an employee suggests they received coronavirus due to performance of school duties, you should at least contact your insurance carrier.

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