Fun and Games with the Open Meetings Act

One of the most frustrating aspects of public school governance is keeping up with the details of the Nebraska Open Meetings Act.  Those requirements are changing again.  In this KSBlog post, we want to update you on (1) the latest Executive Order regarding electronic meetings; (2) the new legal requirements for advertising all school board meetings; and (3) how you will need to change your school board minutes to account for both of these new developments.

Calling/Zooming into Board Meetings Generally

You may recall that last spring, the governor of Nebraska issued an executive order that allowed school boards to hold meetings electronically.  That order expired on June 30.  Since then, some boards have encountered board member absences related to the pandemic as their communities faced outbreaks of COVID-19.  

Generally speaking, the Open Meetings Act does not permit school boards to hold meetings by video or telephone conference.  Section 84-1411(6) states:

“A public body may allow a member of the public or any other witness other than a member of the public body to appear before the public body by means of video or telecommunications equipment.”

The Act does not define what it means to “appear” before the board.  In a prior disposition letter, the Attorney General’s office broadly prohibited board members from calling into a meeting, suggesting that a board member may not even be able to listen into a meeting (without participating in votes or discussions) without violating this provision.  See, Aurora Airport Authority, 19-M-112, p. *4-5 (Atty. Gen. May 3, 2019) (disposition letter).  So, for years, we’ve advised clients that board members should not listen in and specifically could not participate in any way remotely.  Based on more recent informal discussions with the AG’s office, we believe they may take the position that a board member could listen into a meeting via video or telephone conference, so long as that board member did not participate in the meeting, discussion, or votes.  File this away as an issue to be examined again in the future, and perhaps a legislative clarification is possible.

Executive Order No. 20-34

Fortunately, on October 30, 2020, Governor Ricketts signed Executive Order No. 20-34, which should make it a little easier to meet through the end of the year. While board members cannot usually participate in votes and discussion over telephone or video conference, Executive Order No. 20-34 authorizes  additional flexibility when physical attendance at the meeting is frustrated by COVID-19.  Effective until December 31, 2020, the Order provides:

Elected officials who have been ordered to quarantine or isolate by the local public health agency due to exposure to COVID-19, in conformance with guidance from the Nebraska Department of Health and Human Services, may fully participate, vote, and be counted as part of a quorum in meetings when attending by video conference or by telephonic conference or by conferencing by other electronic communication . . . so long as the public body has at least one physical location that provides access to members of the public and to members of the media.

This Executive Order expires December 31, 2020.  Going forward, it is important to remember that this executive order is not nearly as broad as the previous orders permitting a board to meet by video or telephone conference, and only applies to members of the board ordered to quarantine and isolate.

REMINDER: LB 148 and Publishing Notice of Meetings

We’ve talked about this a lot with our policy service subscribers and in various presentations, but here’s your friendly reminder on the changes to Nebraska’s public meeting notice laws.  Effective November 14, 2020, LB 148 requires school boards to give notice of their meetings by publication in a newspaper of general circulation within their jurisdiction and, if available, on that newspaper’s website.  

Although there is no clear legal definition of a “newspaper of general circulation,” we think that so long as the newspaper in question has subscribers within and beyond your school district, and it contains news stories of general interest to readers (in contrast to only industry-specific or school-specific content), that should be adequate to comply with the new law.  We also believe that other newspapers circulating and readily available in your district, such as the newspaper of a neighboring town or county, probably satisfy your obligation to publish notice.  If you aren’t sure whether your preferred newspaper(s) counts, contact your school attorney.

In addition to the added costs this will impose on schools, these new requirements may hinder a board’s ability to meet on short notice or adjust the time and date of a meeting due to exigent circumstances (such as severe weather, or, you know, A FRICKIN’ PANDEMIC!)  As a result, we recommend that boards identify multiple newspapers with different publication schedules, including at least one with a daily circulation in your community if possible, that could satisfy the new publication requirements on shorter notice.  For example, we believe that the Omaha World Herald is a newspaper of general circulation for much of Nebraska.

Additional Requirements for Your Minutes

Finally, both the new Executive Order and LB 148 will require you to make changes to the contents of your minutes.  

First, if a board member attends a meeting via telephone or video conference, the meeting minutes must reflect that the member participated electronically and note when the member voted on an issue via electronic means.     

Second, all of your minutes must now include methods and dates of publication of notice of the meeting.  For those of you who use the Nebraska School Boards Association’s Sparq Data Solutions for your minutes, you can set your minute templates to prompt you to include that information.  Sparq staff have made this helpful video to show boards how to set up that template. 

Conclusion 

We know that you have a LOT on your plate right now.  The new Executive Order should make life a little easier for boards to continue business as usual when board members are subject to quarantine orders.  The Attorney General’s new interpretation of the Act allowing even board members who are not under quarantine to listen in to meetings electronically so long as they do not participate or vote is also helpful.  However, the new publication requirements in LB 148 will make it much more difficult for boards to advertise their meetings.  The Executive Order expires at the end of 2020, but the new publication requirements will remain in effect indefinitely.  

If you have any questions about a board member’s ability to listen into or participate in a meeting via telephone or video conference, or the publication and notice requirements imposed by LB 148, please don’t hesitate to reach out to one of the KSB School Law attorneys at (402) 804-8000 or email us at ksb@ksbschoollaw.com.

You should totally go as “The Prepared Negotiator” for Halloween! It’s negotiations season in Nebraska, with new EHA rates and more….

It’s that time of year!  When KSB’s Husker predictions get horrible reviews, and you are preparing to negotiate for your 21-22 contracts with impending local, state, and national elections, having no clue what Congress or the Unicameral will do before next August (it’s just frightening at this point), in the middle of a global pandemic.  Sounds fun.  In a crazy time with so many variables, the wise advice to “control what you can” seems apropos.  Since you can’t control the weather or whether Scott Frost goes for it on 4th and 1, let’s make sure you’re well prepared to negotiate.

Negotiations Timelines.  Here’s your annual flu shot reminder about the negotiations timelines in Nebraska.  Statute section 48-818.01 lays out most of the procedural requirements for school and ESU negotiations, including the relevant timelines:

September 1: Deadline for the union to request bargaining agent recognition

October 1: Deadline for the board to respond to the request

November 1: “[N]egotiations shall begin.”  We’re not exactly sure what that means, though the safest answer is to assume 1 of the 4 mandatory negotiations meetings must occur by 11/1.

February 8 (2021): If you’re not settled, the parties must submit to mediation or factfinding, or agree in writing to continue bargaining.

EHA Rate and Network Changes, and Negotiations. Remember that negotiations in Nebraska are all about comparability.  You’re comparing total compensation, not just salary, which includes benefits costs with the bulk coming from health insurance.  Your total compensation number must fall within 98-102% of the total compensation of the midpoint of your array, so your choices and the choices of your array schools matter a lot.  That’s why when Educators Health Alliance (EHA) announced their 2021-2022 rates and an upcoming change to their health insurance network offerings, your ears should have perked up.  

The press release announces 2.96% overall increase in EHA plan premiums for next year. That’s good news.  But keep in mind a raise across the board means every school and ESU in EHA will have a similar increase--it won’t mean you just pay that much less in salary because your benefit costs went up.  That’s why perhaps the bigger news from a negotiations perspective is the addition of two alternative networks.  EHA will continue to offer the statewide NEtwork BLUE option to all school districts and their employees.  For next year (beginning September 1, 2021) EHA will make two alternate networks available to select school districts and their employees.  

One new network is Premier Select BlueChoice.  This network will be available in areas with zip codes starting with 680, 681, 683, 684, or 685.  Some key network hospitals and healthcare providers include Methodist Hospital System, Nebraska Medicine, Bryan Health, Boys Town National Research Hospital, and Children’s Hospital & Medical Center.  

The other new network is Blueprint Health.  This network will be available in areas with zip codes starting with 680, 681, 683, 684, or 685 and the counties of Adams, Buffalo, Hall, Kearney, or Phelps.  Some key network hospitals and healthcare providers include CHI Health System, Alegent Creighton Health Services, Nebraska Spine Hospital LLC, Boys Town National Research Hospital, and Children’s Hospital & Medical Center

Telehealth will be available with all networks.  Employees will be offered two plan options and up to three network choices.  The alternate networks have fewer hospitals and doctors than the statewide networks and will only be available to specific geographic areas, but they keep costs lower for districts and employees through lower premiums, deductibles, out-of-pocket costs.**  You can see the new plan documents and the coverage/rate information on EHA’s website, ehaplan.org.  

**Note: This is where we suspect some board negotiating teams may see an attractive cost savings, but where we must remind you that saving on health care premiums likely means more money put in other places, such as salary, to have a “total compensation” number within the acceptable 98-102% range under our negotiations rules.

Plan Ahead and Be Prepared.  Every board should have an accurate snapshot of your negotiating position and an understanding of how changes in inputs (whether by choice or by circumstance) affect your position and strategy.  “But KSB, we have to negotiate by November 1, so there’s no more time to prepare!”  False!  There is no requirement to settle and put everything on the table in meeting #1.  (But, we do recommend putting ALL subjects at issue on the table as early as possible.)  

It’s not too late to get a reliable comp study done, to have your negotiated agreement reviewed for provisions that must or should change, or talk strategy with your school or ESU attorney.  Consider giving your school attorney a call just to talk through your options and strategy for a few minutes.  If you’re a KSB client, give any of us a call or drop us a line (ksb@ksbschoollaw.com).  Happy negotiating! 

Long Awaited KSB Husker Predictions!

KAREN’S PREDICTION:

So much has changed in our daily lives since the pandemic hit this past spring that I have been looking forward to the familiar ritual of predicting the Huskers’  wins for the 2020 season.  Then I took a hard look at the schedule that our good friends at the B1G have put together for us and I was so depressed I considered reviewing COVID mortality rates to lighten the mood…...

Ohio State - loss.  (Granted, the Horseshoe will not be filled with 102,780 drunk Buckeyes, but really how many fans does Ohio State’s offensive line need cheering them on against the Huskers’ shaky defense?)

Wisconsin - loss. (Bucky’s cheese eaters on the offensive and defensive lines have not gotten smaller.) 

Northwestern - win. (Husker fans will have trouble social distancing when they are high-fiving each other on November 4.)  

Penn State - loss. (After a celebratory week where talk radio will be filled with “we are back, baby” calls, Penn State will bring it all to a screeching halt.)

Illinois - loss. (Lovey Smith’s beard will distract the Huskers, and a much-improved Fighting Illini team will take advantage of the physical beating the Huskers will have taken at the hands of Penn State.) 

Iowa - loss. (Puke emoji.  Cursing emoji. Weary face emoji.)

Purdue - loss. (They’ve beaten us the last two times, and the Huskers will be dealing with the crippling shame that attends a loss to the *barf* Hawkeyes.)

Minnesota - loss. (Look, I don’t like it any more than you do, but the Gophers have their entire starting offensive line back and that will not be good for us.)

So there you have it.  A crushing 1-7 season, will have Husker fans longing for the sweeter, more joyous days of March and April of 2020.  And we all will watch every excruciating snap, fumble and incompletion.  BECAUSE HUSKER FOOTBALL IS FUN DAMN IT. 

Overall prediction: 1- 7 :-( 

We now return you to your regularly-scheduled existential despair…... 

STEVE’S PREDICTION: 

Eight Nebraska football players sued the Big Ten over its decision to postpone the season.  Really?!?  I’ve never seen a group of people so anxious for an ass-whooping that they would file a lawsuit asking for it!  Alright, I guess we’re really going to do this.  

First, the good news.  It is impossible for the Cornhuskers to get curb-stomped by the Michigan Wolverines because they don’t play this year.  The bad news?  Your Nebraska Cornhuskers still have to play Ohio State, Wisconsin, and Penn State.  These games will be reminiscent of the PTSD-inducing, Plastic Spoon Beatdowns™ that my mom put on me in the early 80s for, as far as I can recall, being a perfect child.  Iowa and Minnesota?  Nebraska won’t be up to the task, and we’ll have to put up with Tyler bragging about his Hawkeyes beating a has-been program.  Nebraska will manage to eke out two wins against Northwestern, Purdue, and Illinois, but that should leave you with the same feeling I have when I take money from everyone at KSB playing poker.  Sure, it’s a win, but how good can you feel about getting over on the less fortunate?    

The Huskers will end the regular-season Big Ten schedule with a 2-6 record.  I’ll call the +1 game a toss-up that the Huskers will manage to lose.  The Huskers will not be one of the 78 teams that earns a bowl bid.  The Huskers finish the season 2-7, resulting in the Big Ten filing a lawsuit of their own against the University of Nebraska for breach of contract for failing to play football in good faith.  

BOBBY’S PREDICTION:

My goodness! Would you look at all this doom and gloom!  Karen remains in existential despair; Steve and Jordan don’t count--they’re like the annoying uncle and cousin who just happened to like the Cowboys, Braves, and Bulls in the 90s; Tyler went to Iowa, so he’s immediately disqualified as biased; and it’s clear Matt’s affinity for Notre Dame of the ACC fame (they joined a conference!) has tainted Shari to an unacceptable degree.  That leaves Coady, and he’s also at 3-5.  Woof.

I’m going with 4-4, and I’m the optimist!?  Of course, that’s a very sad state of affairs when I (and Vegas) am teetering on a line of  o/u 3.5 wins for 8 games.  I’d put my money on the unders (3-5) but my heart wants 4-4, so that’s what you’re gonna get from me in a year that needs more cowbell.

I see some of my derelict colleagues predicting 2-3 wins over what should be 10 total games (8 regular season, 1 conference tournament game, and 1 bowl game).  If that happens, maybe we should be predicting wins from a new coach next year (yeah, I said it).  As far as the 8 games we have, Nebraska only looks to be a pre-season, 2-score dog in 2 of them (Ohio State and Penn State).  I get that point spreads are to induce betting and are not intended to be predictive, but Vegas has been pretty good in the prediction market over the last, I dunno, century.  So 6 of our 8 games are informally predicted to be within 1 score.  Can Vegas be so wrong so many years in a row on Nebraska?  I’m hoping for a mere regression to the mean so that we barely cover the o/u 3.5 win total at 4.  It’s not like I’m asking for us to go better than .500, geez.  

I’m going with wins against Illinois, Purdue, and Northwestern.  Then, I think we get one of Wisconsin, Iowa, or Minnesota, the latter two of which should have opening lines within a field goal or 2.  Nebraska hasn’t beaten a top-10 team since 2015 and even that year Michigan State lost its bowl game and finished outside of the top 10 in the final Sagarin.  There’s a statistical “we’re due” argument to be made, but I’m not making it.  Sadly, I’ll be elated if we cover 4 TD and 2 TD spreads against Ohio State and Penn State.

So, 4-4 with some bruising losses mixed in.  At that record, we’ll get a decent draw as the 3rd-5th ranked team in the west division for the bonus game on conference championship weekend.  Maybe a gettable Michigan State or Maryland.  I also think Nebraska’s following may lead to us being outmatched in any bowl game we’re invited to, but sadly “outmatched” isn’t that tough.  Maybe those extra bowl practices with a young team and the free year of eligibility from the NCAA will mean we get talented guys up to speed for a bowl appearance and steal one.  Assuming all games are played:

Regular Season: 4-4

Conference Bonus Game and Bowl: 1-1

Overall: 5-5 

(COVID-19: 1-0)

If we only win 2 or 3 out of 10, I may have to ask Karen to buy me a ticket on the express train toward deflated expectations for our once-proud program.  Even if we go 4-4, that’ll mark the 17th year in a row Nebraska has lost at least 4 games.  And that’s the optimistic view of the group...

SHARI’S PREDICTION:

The only thing that is a for sure win in 2020 is COVID.  I think we would all agree that 2020 has been a crappy year and I’m pretty sure that will be what takes all the blame for the Nebraska losses this year.  Unfortunately, there will be a lot.  Which is where all the excuses come in.  Season was cancelled, season was back on, we got the worst schedule, we couldn’t properly prepare and on and on and on.  I think Nebraska will get two wins this season.  Illinois and Purdue.  The only plus of a 2 win season this year is that they still get to go to a bowl game.  I will give Nebraska a win in that game to finish on a high note. 

COADY’S PREDICTION:

It doesn’t take Bill Moos whining about the B1G’s scheduling decisions to know that this slate presents a challenge for Nebraska.  It’ll be an upset if Nebraska beats any of Ohio State, Wisconsin, Penn State, or Iowa.

[Author’s Note: It pains me to include the Hawkeyes in that list--especially since our own Tyler Coverdale attended law school in Iowa City, and I am not enthusiastic about hearing from Tyler how well the Hawkeyes are doing.  But, I only have to think back to the last few Thanksgiving weekends to conclude that until Nebraska shows that its defensive front seven is more stout, then Iowa will continue to matriculate the ball down the “Blackshirts”  throat four yards at a time.  So, Iowa joins the other B1G heavyweights as probable losses.]

I see probable wins against Illinois and Purdue.  That’s it.  That’s the list.

I mark down Northwestern and Minnesota as toss-up games.  Partly because the COVID-19 pandemic will preclude Ryan Field in Evanston from feeling like Memorial Stadium North, taken over by the Sea of Red (which typically happens), and also because I refuse to live in a world where Minnesota and its gimmicky coach are assumed losses for Nebraska.  Assume that Nebraska splits these games and finishes the pre-scheduled slate at 3-5.

The good news: That is three more wins that it looked like Nebraska would get on August 12 after the B1G cancelled the football season.  The bad news: Re-starting the football season back up is likely to lead to at least five more losses, too.

Man, I truly hope that I am wrong and that Nebraska football brings us all some unexpected joy this fall.  I suspect that I am not.

TYLER’S PREDICTION: 

Did you know if you google “What’s wrong with the Nebraska Cornhuskers?” you get 10,900,000 hits? That’s a lot of problems for a once proud program who produced upstanding citizens like Ndamukong Suh and Richie Incognito.  Ah yes, the glorious history of the late ‘90s of which I’m reminded every time I bring up the dear Cornhuskers recent record against it’s now superior rival to the east. I suppose being a Huskers fan is similar to being a Cowboys fan—reliving the glory days of thirty years ago while consistently losing to teams from Wisconsin (GO PACK GO!).

But on to this year.  It’s going to be a rough go. Nebraska was leading the charge to get football back, and maybe the Big Ten was mad at them for it so it gave them this schedule.  Starting off against the buzzsaws that are Ohio State and Wisconsin, the Huskers are in for a bad time.  They may steal a win in Evanston against Northwestern but I wouldn’t bet my life on it.  They’ll likely get a W at home against the Illini, but then reality will set back in as they make the journey to Iowa City for their annual loss to the Hawkeyes.  Maybe someday KSB will actually see a Husker victory over Iowa (last happened in 2014), but I doubt it’ll happen this year at Kinnick against that offensive line.

Husker fans will flirt with hope again with a victory over Purdue, but the year will end with a disheartening loss to the Golden Gophers at home.

2-6. 

MATT’S PREDICTION:

LET’S GO S’KERS! Time to forget about Covid for a couple hours and watch some football.  Damn it -- Ohio St. scored already, well better make a drink. Dang they scored again! Better make it a shot and a beer this time!  Husker fans look on the bright side, the following week they play Wisconsin and won’t lose by 40! Instead they will get pounding from their rushing attack and lose by just 30. Man, I could talk smack all day, but I'll stop.  The s’kers will get a few wins.  I’m predicting wins from Northwestern, Illinois, Purdue and that’s where the wins stop!  3-5 (only 5 losses, not bad)!  

JORDAN’S PREDICTION:

Misery loves company, and this lifelong Lions fan in Nebraska is slated to have a lot of company for football season.  A word of advice – look at this season as a comedy, not a drama, and remember, no one likes the sad clown.  Don’t cry! Laugh with the Ohio State fans (who have become the only ones that appreciate Nebraska’s presence in the Big Ten) as they take a thirty point lead into half time.  Smile as you (totally legally) bet the over on how many field goals can be missed against the Badgers.  Giggle with glee at the first win against Illinois.  And, of course, breathe a sigh of relief that there are no fans in stadiums, which means you won’t need to navigate Iowa’s road construction (or smell the air over there.)  In short, enjoy the journey, because the destination is bleak.  2-6 with losses in the TBA game and any “bowl” game to follow. 

(Un)Precedented Times: FAQs after a Month of Reopening

We’re now a month into the school year, which begs the question: Are we now living in precedented times?  Unfortunately, for schools in Nebraska, precedent goes out the window every time the Directed Health Measures (DHMs) are changed.  Similarly for schools in South Dakota, a lack of consistency in guidance at the state level combined with increasing COVID cases leaves schools uncertain about how to serve students without facing liability.  All of these changes beg several follow-up questions, so we wanted to take this opportunity to answer some of those most frequently asked by schools adapting their plans to their community’s changing circumstances. 

What’s changed with the public health guidance and requirements?  

Over the last several weeks, schools in some Nebraska health department regions were advised that if students were wearing masks at the time of an exposure or close contact with an individual who tests positive for COVID-19, they would not necessarily be required to isolate or quarantine as close contacts.  Unfortunately, this advice was not consistent with the authoritative DHM’s in effect, and couldn’t be relied upon by schools. . . until the DHMs were updated again this week.

The updated and effective DHM’s, which can be found here, include new provisions about when a student must isolate or quarantine because of classroom contact with a student that tested positive.  Specifically, the updated provisions indicate that:

• In a classroom where everyone is masked, including the student to test positive, only the student who tests positive will isolate at home, and the remainder of the students will self-monitor for symptoms. 

• In a classroom where the student that tests positive is not masked, that student will be isolated at home, and any peers who had close contact with the student will quarantine at home, regardless of whether those peers were wearing masks during the close contact period.  

• In a classroom where the student that tests positive is masked, but others are not, the student who tests positive will isolate at home, and the students without masks that were in close contact will quarantine at home.  The other students in the classroom that were masked will only be required to self-monitor for symptoms.

• In a classroom where no students were masked, the student that tests positive will be isolated at home, and any close contacts will quarantine at home.

For South Dakota schools, there are no directed health measures to follow. Instead, much like the Pirate Code, the South Dakota Department of Health has mostly insisted their recommendations are simply “guidelines” which schools can take or leave.  Anecdotally, though, many districts are reconsidering masking requirements in light of increases in outbreaks and the relative success some districts have had in implementing the measures.

We are now going to require that all students and staff members wear masks.  How do we handle requests for exceptions to mask requirements?

If you have been a “strongly encouraged” school that is shifting to mandatory masking, it might be helpful to refer back to our previous post on the subject, found here.  This post discusses how to handle requests for exceptions to mask requirements when a student cites an underlying medical condition as the reason for needing an accommodation.  These requests implicate Section 504 and, potentially, the IDEA.

For students who cite political or “religious” reasons for their request, you are not required to grant an accommodation under the First Amendment.  This is because a masking requirement is neutral and unrelated to discrimination on the basis of First Amendment activity.  This probably can be explained best by analogy: You would not allow someone to attend school without clothes, even if they intended their nudity to be a political statement or a religious act.  Similarly, you would not allow a student in welding class to weld without protective eye coverings, even if the student was attempting to make a political statement about over-regulation by OSHA or did not believe in the risks associated with welding without PPE.  

We’re a little rusty on Section 504, can you give us some help?

Of course.  These days, it seems like there is a regulation or an obligation for everything, and it’s tough to tackle these complex issues without support.  Fortunately, KSB has a detailed memo, forms, and COVID-19 samples prepared to make your 504 process more efficient and accessible.  These also come along with a link to a short Section 504 refresher course led by Karen, which will get you up to speed with your obligations in about 30 minutes.  Just let us know if you would like to purchase these resources -- we are charging $150 for the package. 

Our area is doing well to minimize the spread of COVID-19, so can we discontinue our remote learning program or hybrid system?

Yes. . .  And no. . .  Neither Nebraska nor South Dakota ever required schools to create a hybrid system allowing remote learning for all students.  However, there are circumstances where the IDEA or Section 504 may require you to allow a student to engage in remote instruction in order to equally access your educational program.  To that end, students with disabilities currently receiving instruction remotely might have IEPs or Section 504 plans that call for the provision of remote services, accommodations, or instruction. 

This means that while you can discontinue remote learning programs or services for general education students, there will be additional considerations for students with disabilities.  For those students whose IEP Team or 504 Committee included remote services or programming into the student’s individualized plan, the team will need to reconvene and consider the student’s unique needs and circumstances prior to making any changes.  Additionally, requests for accommodations or services on the basis of disability must continue to be handled by the appropriate team.

What do we do if a student with a disability who is supposed to receive remote services or instruction isn’t logging on to access their education?  And what about the kids who are logging on, but aren’t making progress?

We are approaching the end of the first quarter of the 20-21 school year, which means most families will be receiving progress reports very soon.  We should review the current access and progress data for your students with disabilities receiving remote services or instruction over the last month now, before those reports are prepared and sent.  If the data indicates that a student isn’t accessing their programming, or isn’t progressing despite accessing their programming, the student’s placement may not be appropriate.  In these situations, we recommend that you reconvene the student’s IEP Team or Section 504 Committee to consider this new information, and discuss what changes are necessary for the student to make progress appropriate in light of their unique circumstances.   It may be that the student and/or parents simply need technical support or training in accessing remote programming.  On the other hand, the team may determine that remote programming is not appropriate for the student, and return the student to in-person instruction with adequate precautions.  It is important that each student team reach independent determinations about the student’s unique needs and circumstances, regardless of the policies or programs that are applicable to the general education program.

What do we do if a student with a disability wants to return to school in person, but we aren’t permitting families to change until the end of the semester?

As noted above, schools are obligated to provide students with disabilities FAPE, irrespective of the rules set for the general education program.  If a student with a disability requests a return to school in person, they’re asking for a change in placement unless their services and instruction would be the same in an in-person environment.  In response, you should review the student’s progress data and determine if an IEP meeting should be held to consider changing the student’s placement.  If the data indicates that the student’s current plan or placement is inappropriate, the team should meet to consider whether changes are warranted.  However, this does not mean that the team is obligated to return the student to in-person instruction if the team concludes that in-person instruction is not the student’s appropriate placement.

What are the PWN/documentation issues with all this?

Prior Written Notice is required under the IDEA (but not Section 504) whenever a school proposes or refuses to initiate or change the placement or provision of FAPE to a student.  That means you should respond with PWN if you receive a request to change a student’s programming or services (such as a request to return to in-person instruction) or a change to the services and accommodations necessary to provide the student FAPE (such as a request for an accommodation to masking requirements).  Remember that you cannot unilaterally change a student’s placement or amend their IEP with PWN alone; you must either reach these decisions as a team or agree with the parent in writing to an amendment.

How many games are the Huskers going to win with this brutal schedule?

Just kidding. . .  You’ll have to wait just a little longer before you can read our predictions and call your bookie.  In the meantime, if you have any questions about these unprecedented times, or need a place to vent about the Huskers’ schedule, call Karen, Steve*, Bobby, Coady, Jordan*, or Tyler* at (402) 804-8000 or shoot us an email at ksb@ksbschoollaw.com. 

*Steve, Jordan, and Tyler are not Husker football fans and make no promises or assurances that any complaints from Husker fans will be met with empathy, understanding, or support.  By calling Steve, Jordan, or Tyler to discuss the Huskers, you do thereby assume the risk of any hurt feelings, and waive any claims or complaints in relation thereto.  Further, by calling Steve, Jordan, or Tyler to discuss the Huskers, you do thereby consent to receive future communications regarding the success of the Michigan and Iowa football programs.

The Gambler: A Title IX Update NOT about the New Regulations

You never walk away from the table on a heater.  Just ask Gavin Grimm.  He filed a lawsuit 6 years ago when his school board passed a policy prohibiting him from using the bathroom consistent with his gender identity.  His case has yo-yo’d through the federal court system since.   Grimm won (again) yesterday in a major way, this time in a decision issued by the Fourth Circuit Court of Appeals.  The court agreed that the Gloucester County School Board violated Grimm’s rights under Title IX and the Equal Protection Clause by denying him access to the boys’ bathroom and failing to amend his educational records.

If this feels like deja vu, that's because we’ve been following Grimm’s case for almost six years now.  In fact, one of our very first KSBlog posts from 2015 discusses the early loss Grimm was handed, before he began his winning streak (discussed in this post from 2016) and almost got his day in the Supreme Court (discussed in this post from 2017).  After years of litigation, the Fourth Circuit cut right to the chase:

“At the heart of this appeal is whether equal protection and Title IX can protect transgender students from school bathroom policies that prohibit them from affirming their gender. We join a growing consensus of courts in holding that the answer is resoundingly yes.”

You can expect to hear from students, parents, and advocacy groups that the Fourth Circuit’s decision in Grimm (one of several dozen in which the transgender student has won) once again makes clear that schools are obligated to permit students to use sex-segregated facilities consistent with their gender identity.  While that position may very well be the law of the land sometime soon, the Eighth Circuit (covering NE and SD) hasn’t decided this issue definitively...yet.  We believe you should continue to handle requests for accommodations from transgender individuals on a case-by-case basis under your standard sex discrimination policies.  (Keep in mind, though, that the grievance procedures required by the new Title IX regulations likely would not apply to a student’s request for such accommodations, because those procedures only apply to “formal complaints” of “sexual harassment” as defined by the regs.) 

To Be Continued?

If this sounds familiar for other reasons, you’re probably recalling the recent Supreme Court decision in Bostock, where 3 employees (2 gay, 1 transgender) sued their employers for discrimination under Title VII.  The Supreme Court determined that employers cannot discriminate against any employee on the basis of gender identity or sexual orientation.   The day that case was decided, any lawyer following transgender rights litigation predicted that courts and advocacy groups would cite that decision when arguing Title IX cases involving students and schools.  The Fourth Circuit in Grimm’s case did just that.  The key question now is whether the Supreme Court will take this opportunity to provide the same clarity under Title IX as it did under Title VII, finally giving public schools across the country the clarity they’ve been seeking for years.  

If we’re really lucky, that decision would also provide clarity in the area of transgender students’ participation in athletics.  After an OCR decision prohibited transgender female athletes from participating in girls’ sports,   a U.S. District Court in Idaho promptly reached the exact opposite conclusion, striking down Idaho’s law that prohibited transgender females from participating in girls’ sports in Hecox v. Little.  

In the meantime, schools in Nebraska and South Dakota should handle these situations on a case-by-case basis and avoid changes to your policies related to transgender students.  If you have any questions about the rights of transgender students, other recent developments under Title IX, or any other issue, don’t hesitate to call Karen, Steve, Bobby, Coady, Jordan, or Tyler.

Who is that Masked Man? And If He Has a Doctor’s Note Can He Take That Thing Off?

Masking has become a polarizing “hot button” issue as schools in Nebraska and South Dakota reopen this fall.  Many boards of education have started the school year with, or are considering moving to, requiring all students to wear masks or other face coverings while at school.  Some families have responded to universal masking rules by providing a doctor’s note or other document seeking to show that a particular student has a medical condition preventing him/her from wearing a mask.  Some students who have not previously raised health concerns may now reveal a medical condition that they believe should excuse them from masking requirements.  Unfortunately, some of these are legitimate medical needs and others are attempts to bypass masking requirements for political or other reasons.  How does an educator with a million other things going on sift through it?! 

As a result, we are getting this question from clients repeatedly: if a student has a doctor’s note, is he/she entitled not to wear a mask?  As with most legal issues involving students with disabilities, the legal answer is not a simple “yes” or “no.”  Instead, these requests should trigger your process for identifying and accommodating students under Section 504 of the Rehabilitation Act.  Although it may seem like additional work, the benefit of the process around the request makes it easier to handle them consistently and to receive the deference schools are entitled to when following the proper process.    

Both Section 504 and the IDEA require schools to find and evaluate students who are believed to have disabilities. When a parent tells you that their child has a medical excuse not to wear a  mask, the parent is also giving you notice that the student suffers from a physical or mental impairment, which triggers your obligation to conduct a 504 evaluation.  

If the school is notified that a student has a medical condition significant enough to support waiver of a universal masking rule, schools must take the following steps:

1. promptly seek parental consent to evaluate under Section 504; 

2. hold a Section 504 Committee meeting to determine if the student is “disabled” as that term is defined by Section 504; and, if so, 

3. create a Section 504 plan for students who qualify as “disabled” under Section 504, if the child’s disability requires a reasonable accommodation to access the school’s programs and activities.  

Students who already have a Section 504 Plan or an IEP should have any needed accommodations to mask rules addressed in those existing plans after the committee or IEP team holds a meeting to discuss the new accommodation requests.

The good news in all this is that the 504 evaluation process is much less formal than the IDEA process.  The bad news is that this means your 504 committees bear a lot of responsibility for making this decision on their own.  The worse news is that you cannot simply create a “health care plan” and call it good; the Office for Civil Rights has repeatedly found that students with health care plans should be given the opportunity to instead have a plan under Section 504, because they are entitled to the procedural safeguards of Section 504 if they have a qualifying disability.  

If your district has a robust Section 504 process, you should be able to use that same system for students seeking waiver of universal masking rules or other disability-related accommodations due to the pandemic.  If you are uncertain about how that would look, or if you are a little rusty on the whole Section 504 bit, KSB does have a detailed memo, forms and COVID-19 samples available.  Just let us know if you need help.  For districts that purchase the 504 forms, we will also share a link to a short Section 504 refresher course, which is about 30 minutes long.

KSB Webinar Series 2020-2021

Save the Dates! KSB will again be hosting a webinar series for the 2020-2021 school year. The dates and topics are as follows:

Negotiations:  September 15, 2020 -- Know When To Hold Em’, Know When to Fold Em’: Don’t Gamble on your Negotiation Preparation

You don’t have to be Kenny Rogers to know that you never count your money when you’re sitting at the table.  Instead, it's important that you go to the negotiating table fully informed, with a sound strategy driven by concrete goals and reliable data.  This presentation will highlight how comparability studies, strategy sessions, and familiarity with the state of labor law and labor negotiations in Nebraska can help your District go to the table with an ace in the hole.  The presentation will be recorded, so if you sign up you can share it with your board members and/or negotiations committee if they can’t attend live, as well.

Personnel:  December 1, 2020 -- Based on a True Story...

We get it; you didn’t go into education to crush peoples’ dreams.  School administrators are quick to identify areas of strength, and reluctant to be too harsh in giving feedback.  Unfortunately, when it comes to personnel matters, this can leave you unable to share the full story when it comes time to make staffing decisions.  This session will review personnel documentation and advise on best practices for communicating with staff about their job performance.  Whether you want to move a staff member from “good to great’ or from “bad to gone,” the strategies and examples in this session will help you be a more effective administrator.  YOU are the author of this story, and it's never too late for a plot-twist.  This presentation will help you write evaluations and improvement plans like Tolkien, discuss leave like Hemingway, and navigate personnel nightmares like Poe.

Special Education:  February 9, 2021 -- Times, They Are a-Changin’  

Since the Supreme Court issued its opinions in Fry and Endrew F. in 2017, the law and landscape of special education law has changed dramatically.  Since that time, special education litigation has only continued to increase, and courts have been grappling with these new standards and applying them to novel fact patterns and difficult questions of law.  As always, we’ve seen trends that started on the coasts work their way to the heartland, with an increase in requests for independent educational evaluations and specialized placements.  Oh, and then there was that whole global pandemic thing, which acted as a stress test on an already strained, under-funded system and put a spotlight on areas of technical compliance.  Unfortunately, the hits are likely to keep coming, and it's important for all school administrators as well as those specifically working in special education to be prepared for these continuing challenges. This presentation will take the lessons we’ve learned over the past few years and apply them to the issues you should expect to see going forward. 

Students:  March 30, 2021 -- Kids These Days

With the Class of 2033 in their seats (or screens) for the first year of the rest of their lives, even Jordan, at the ripe old age of 26, feels old.  We’ve been doing this a long time (just ask Karen!) but the youth of America still find ways to surprise and challenge us.  And don’t get us started about “snowplow” parents.  From new and interesting ways to violate the code of conduct to novel requests for accommodations, it's tough to stay on top of it all.  This presentation will highlight the most pressing issues in fulfilling the needs of Generation Zoom, while discussing practical solutions and strategies to get you ready for the Class of 2034.

FOR MORE INFORMATION AND TO REGISTER, CLICK HERE!

REMINDER: Q&A with KSB, Special Education Edition!

Q&A with KSB, Special Education Edition!

When: Friday, August 14, 2020 at 10:00 AM CDT

Where: ZOOM (Info below)

What: Q&A with KSB, Special Education Edition

On Friday, we’re going to answer your COVID-related questions on Special Education.  We plan to cover:

• Why you shouldn’t be saying “comp ed” in your meetings;

• When you should be holding meetings and how to prioritize your scheduling;

• The data you should be collecting when students return to school; 

• How to handle requests for COVID-19 related accommodations from students with disabilities;

• How to discuss the effects of COVID-19 on your students in an IEP meeting, and prepare services to address these needs;

• What obligations you owe to students who have disenrolled to homeschool;

• How to put a framework around your IDEA and 504 obligations when the district has a parent choice/hybrid model; and

• Any other questions you might have!

JOIN THE ZOOM HERE!

Frequently Asked Questions about Serving Disabled Students During COVID-19

Educators have worked frantically all summer to prepare for the reopening of schools.  A lot of the focus has been on whether to require students to wear masks, the effect of COVID risk dials, and how to safely serve students in extended school year services and extracurricular activities.  As we enter the fall with reopening and contingency plans in place, many special education professionals must now decide how their district’s plans will be applied to special education students.  We have prepared this list of frequently asked questions that we have been fielding as special educators prepare for students with disabilities to return to school in a few days. 

Does every student with a doctor’s note get to stay home or be excused from wearing a mask or have whatever accommodations the doctor recommends?

Not necessarily.  Students with disabilities are entitled to be evaluated for eligibility under either Section 504 or the IDEA.  Once the relevant educational team has determined that the student qualifies for services under the relevant statute, it is up to the team/committee to determine the services or accommodations the student will receive.  

If a parent provides the school district with a doctor’s note, the first thing to do is to determine whether the student has an existing IEP or 504 plan.  If so, the school must promptly convene the relevant team to review the doctor’s note and the team should make an independent determination about appropriate accommodations for the student.  

If the student does not have a pre-existing IEP or 504 plan, the school should promptly seek consent from the family to begin the evaluation process. 

Can we just do a health care plan instead of a 504?

No.  The Office for Civil Rights has made it clear that schools may not side-step the obligations of Section 504 or the IDEA by providing the student with a health care plan.  Instead, OCR views the existence of a health care plan as evidence that the school knew the student had a physical or mental impairment and that knowledge triggers the district’s child find obligation.  In other words, by giving the student a health care plan, the district is conceding that it should have evaluated the student under 504 and/or the IDEA. 

We are allowing families to choose in-person or remote learning.  Can we say that students with disabilities must come to school in person since these students are more in need of in-person instruction? 

No.  School districts that are allowing the parents of typically-developing students to select between in-person instruction and remote learning cannot deprive parents of students with disabilities of that same choice.  

Once parents have made their decision, then each student’s IEP or 504 team needs to meet to craft a plan for the student in light of the parents’ choice.  This means that the team must make an individualized determination about the services, supports and specialized instruction that each student requires in order to receive a free and appropriate public education.  In some cases, the team may decide that it must override the parents’ decision to opt for remote learning and require the student to come to school to receive services.  In order to make this decision, educators will use the same criteria that you use in all decisions about placement of a student in the least restrictive environment and should thoroughly document the team’s consideration of the parent’s input.  

If you haven’t, take a few minutes to review this excellent technical assistance guidance from the Nebraska Department of Education on Least Restrictive Environment.    That document provides: 

Considering the Meaning of “Regular Educational Environment”

The use of the term “regular educational environment” is longstanding in IDEA’s regulations. In response to a public comment on the scope of the LRE provision, the Department explained that the term “encompasses regular classrooms and other settings in schools such as lunchrooms and playgrounds in which children without disabilities participate” (71 Fed. Reg. 46585). The settings in a school where children without disabilities participate are many and varied; all are considered part of the “regular educational environment.”

When schools have given parents the ability to select between in-person instruction and remote learning, the student’s “regular educational environment” will be the option chosen by the parents.  The student’s IEP team can change the “regular education environment” only after they have followed the legally-required process for making a LRE determination. 

In a very useful 2020 Individual Education Program technical assistance guide, the South Dakota Department of Education has similar guidelines for teams to use in making least restrictive placement determinations, beginning on page 33. The South Dakota Department of Education has also included guidance on making least restrictive environment determinations as part of its guidance on re-opening schools this fall, beginning on page 15.  In general, if the student is participating the remote learning in the same manner as students without disabilities, the time will count as time inside the regular classroom. 

Wait, are you saying we have to hold an IEP meeting for every student with an IEP before school starts?

In a perfect world, yes.  Last spring, when public schools began closing across the nation, the Office for Civil Rights released a “Fact Sheet” providing guidance to schools on how to serve students with disabilities during this pandemic.  That document provided: 

If a student does not receive services after an extended period of time, the student’s IEP team or 504 team must make an individualized determination whether or not, and to what extent, compensatory services are needed including how to make up for any skills that may have been lost.

In a supplemental fact sheet, OCR followed up by stating: 

Where there has been an inevitable delay in providing services, or even deciding how to provide services, due to school closures, the student’s IEP team must make an individualized determination whether and to what extent compensatory services are needed when schools resume normal operations.

We are urging our clients to call the services students will receive after the COVID closures “COVID Impact Services” instead of “compensatory education services.”  However, regardless of the label affixed to them, it is clear that the US Department of Education expects schools to meet as quickly as possible to determine the extent of any additional services the student might need as a result of the COVID closures. 

Similarly, on March 25, 2020, the South Dakota Department of Education issued a joint statement with the South Dakota Parent Connection and Disability Rights South Dakota that included this directive: 

At the conclusion of this outbreak, IEP teams can assess if services provided allowed the student to make sufficient progress on goals and educational standards, and then determine if any additional or compensatory services should be made available due to any limitations in the provision of a Free Appropriate Public Education.

Can we just send PWN instead? 

There is a dangerous misunderstanding floating around some special education circles that school districts can just issue a prior written notice to parents to side-step the necessity of holding many IEP meetings in a short period of time.  This is simply not the case.  There are only two ways that a student’s IEP can be amended: 

1. Through a meeting of the IEP team at which the school district arranges to receive meaningful parental participation in the team meeting; or

2. Through a written agreement with the parents PRIOR to the amendment of the IEP that the plan may be amended in specific ways without the necessity of a full meeting. 

AFTER one of these two processes has been followed, THEN the parents must receive prior written notice of any changes to the IEP before the changes to the plan are implemented. 

Parents in other states are already successful in filing complaints against districts that unilaterally changed students’ IEPs during the COVID closures without meeting with parents.  For example, the Kansas Department of Education just determined that a district violated the IDEA only by failing by failing to include the parent in the development of the student's Individualized Continuous Learning Plan when the school closed due to the pandemic.  See In re Student with a Disability, 120 LRP 22907 (SEA KS 2020).

What if we just don’t have the time or resources to hold all these IEP meetings? 

We recommend that you triage your caseload by prioritizing the students who are most likely to require COVID impact services in order to receive FAPE.  You could schedule IEP meetings along these lines, in order of importance: (a) students who were in the process of being verified at the time schools were closed; (b) students who did not participate in the remote enrichment or educational services the school offered during the closures; (c) students who are displaying new or worsening maladaptive behaviors; (d) students about whom parents/guardians have expressed concerns; and (e) students who show regression or lack of progress in academic assessments as the school  year progresses.  

For those students who you know will have their IEP team meetings delayed, you should do everything you can to document that the student is not displaying a need for immediate COVID impact services.  We have created a sample data collection sheet to document the fact that you’ve gathered information from the student’s family, teachers, and any other service providers.  

Do we owe COVID Impact Services to every student with an IEP based on the services they missed out on during the shutdown?

No.  Again, IEP teams and 504 committees must make an individualized determination about whether a student needs any additional services as a result of the COVID closures and if so, what those services should be.  

What kinds of things should IEP teams be considering when they are deciding whether a student needs COVID Impact Services and if so, what those services should look like?

We think every IEP team and 504 committee should be asking questions about a student’s needs in three broad areas:

1. Academic considerations

• Did the student make the progress the IEP team anticipated on annual goals? (If so, the student probably has no need for increased services and/or supports.) 

• Did the student regress academically during closures?  

  • If so, does the student need to recoup those losses or can the student recoup those losses without a higher level of support?

2. Behavioral SEL considerations

• Did the student’s behavior interfere with his/her ability to benefit from the education/enrichment provided by the district during closures?  (You can elicit this data from parents, staff and others like coaches who may have worked with the student over the summer.) 

  • If so, does the student need explicit instruction and/or positive behavioral interventions in anticipation of future closures?

• Does the student exhibit new behaviors in school that interfere with his/her learning?

• Does the student exhibit any new evidence of emotional disturbance, a behavior disorder or anxiety?

3. Transition considerations

• Was the student unable to participate in transition activities during closures?  

• Can those activities be replicated or replaced now?

• Does the student need additional transition assistance in light of missing experiences?

• Does the student need independent living skills instruction that is best provided in-person? (Discuss timing of that instruction and address contingencies based on the possibility that new COVID spikes could necessitate future school closures.)

Should we be writing IEP and 504 plans based on in-person instruction or remote learning?

Each team should begin by crafting a plan based on the location in which the student will be receiving services when school begins.  We are also encouraging educational teams to include in each student’s plan, a description of the services that the student will receive in the event the school district is forced to close for in-person instruction due to the pandemic, when possible.  Not all IEPs or 504 plans will lend themselves to a closure contingency, but each team should consider whether any particular student’s education plan can be put in place now and if so, what the educational services will be for that student in the event of a closure. 

Can you share the wording we can use for the COVID impact statement for all of our IEPs or 504 plans?

Nope.  Nope.  Nope.  

We all know that the hallmark of services to students with disabilities is that they must be individualized.  Although it would be way easier to have a stock statement to include in every IEP or 504 plan, repeatedly using the same statement could create evidence that the school district failed to individualize a student’s services.  

Instead of a single stock statement, we at KSB have crafted a few examples of COVID impact statements based on several hypothetical situations. 

Throughout the COVID closures, we have tried to strike a balance between charging for our intellectual property and providing necessary resources for schools free of charge.  We have decided to offer the forms referenced above without charge.  However, if you are not a regular KSB client, you should check with your upline administration and/or your school district’s attorney before using these forms.  We will also be holding a free Special Education focused Q&A Webinar this Friday at 10:00.  You can join the webinar by clicking here.  

Congratulations! You’ve Been Sued. Kind Of.

On July 28, 2020, a class action lawsuit was filed in the United States District Court of the Southern District of New York on behalf of students with disabilities and their parents.  The plaintiffs claim they have been denied services during school closures caused or ordered by the defendants due to COVID-19 in violation of various state and federal special education and disability laws.  They are seeking an order that the defendants have violated the U.S. Constitution, the Individuals with Disabilities Education Act, Title II of the Americans with Disabilities Act, and state constitutions and laws.  Based on these legal theories, they are also seeking an injunction directing the defendants to reopen schools immediately, to provide the plaintiffs with everything required by their current IEPs, and orders for independent evaluations, compensatory education, compensatory damages, punitive damages, and costs and attorney fees.  As we in the legal business call it, they’ve filed a “kitchen sink” lawsuit.

“So what” you say, “I’m not a New York school district.  This has nothing to do with me!”  To quote the great philosopher Bart Simpson, “Oh, contraire mon frère.”  The defendants in the lawsuit include “the SCHOOL DISTRICTS IN THE UNITED STATES[.]”  And they weren’t kidding.  They made a valiant, albeit flawed, attempt to list every single school district in the United States as a defendant.  You can find a list of the purported school districts listed by state here.  Additionally, press reports indicate that at last count, at least two hundred families in ten states have joined the lawsuit as plaintiffs.  It may be just a matter of time before they find a plaintiff in Nebraska or South Dakota.

“So what” you say again.  “It’s like you’ve always said, anyone with a filing fee and directions to the courthouse can sue us.”  And we stand by that statement.  However, knowing that you have been or might be sued triggers certain duties on behalf of potential litigants.  In Nebraska, "when the prospect of litigation is present, parties are required to preserve documents that may be relevant to the issues to be raised, and their failure to do so may result in a finding of spoliation of evidence.  The obligation to preserve evidence begins when a party knows or should have known that the evidence is relevant to future or current litigation." Bd. of Regents v. BASF Corp., 2007 U.S. Dist. LEXIS 82492 at 14-15 (D. Neb. 2007)(citing Stevenson v. Union Pac. R.R. Co., 354 F.3d 739, 746 (8th Cir. 1993)(emphasis added). South Dakota has taken a nearly identical stance.  See also Blazer v. Gall, 2019 U.S. Dist. LEXIS 128629, at *10 (D.S.D. 2019) (citing Stevenson, 54 F.3d 739 at 746). 

Although you may not have been served yet, we believe that it is prudent for each school district to begin taking steps immediately to preserve any tangible documents and items, electronic documents, and all electronically stored information related to special education services provided to students during the 2019-20 school year or requested by parents of special education students since schools closed or contemplated closing in the spring.  This includes any and all relevant e-mail communications, as well as records that may be managed by your services providers, such as an intermediate service agency (like an ESU) and others with whom you contract for providing services under the named laws.  We recommend preserving potentially relevant documentation out of an abundance of caution.  After all, court-imposed sanctions for failing to preserve evidence can prove costly in any litigation.  For this reason alone, it is extremely important that all relevant information in whatever form be preserved.  You will also be required to suspend any routine document retention/destruction policy or programs that automatically overwrite or delete electronic records.  

KSB will be sending a “litigation hold” document to all of our school district and ESU clients with whom we have an engagement letter that you will need to distribute to relevant staff, which in the context of a lawsuit as broad as this is probably all staff members.  Additional guidance and information will be included in an explanatory memorandum.  If your school district works with a different law firm, you should contact your attorneys for advice on how to proceed. 

As always, if you have any questions, please feel free to contact your favorite KSB lawyer or Bobby Truhe at ksb@ksbschoollaw.com or (402) 804-8000.

DEADLINE REMINDER: New Title IX Regulations Effective August 14, 2020

We know just what you are thinking during this global pandemic: “You know what we should do?  Let’s update our . . . Title IX policy?”  Yeah, we know.  Seems weird.  But, the U.S. Department of Education issued new regulations that become effective August 14, 2020.  There are a few things that we strongly recommend public school districts do to take steps to comply with the new regulations.  We know you are busy and might want to skip ahead, so in this post we are going to cover (1) the need to adopt/update a Title IX Policy; (2) who is in your “Title IX team” and what administrator can do which job; (3) a summary of the notice requirements; (4) information about the training requirements in the new regulations; and (5) the deadline to get all this done.  

Adopt/Update a Title IX Policy.  The new regulations are very specific about what policies and procedures a school district must have in place to respond to allegations of sexual harassment.  We recommend that you update your board policy to align with these new, detailed requirements.  We have prepared a recommended Title IX policy that will bring your district’s policy into compliance with the regulations.  We have also developed model forms and flowcharts to use throughout the Title IX complaint and grievance process.  Districts that subscribe to the KSB Policy Service received a copy of this package policy earlier this week.  For districts that are not policy service subscribers, we can provide these documents directly to you, together with a brief memorandum concerning implementation.  Just send an email to ksb@ksbschoollaw.com to purchase a copy of this Title IX policy and forms.

Identify the Members of Your Title IX Team.  The new regulations specify certain responsibilities that fall on different people.  At a minimum, you will need to designate an employee as the Title IX Coordinator, and you will need to have some idea of who can and will serve as investigators, decision-makers, decision-makers for appeals, and (possibly) who will facilitate any informal resolution process.  We recommend that you consider the various responsibilities for each role and then consider the people on your team (or outside entities like ESUs, administrators from nearby districts, or professional firms) that may fill those roles for you.

The most common question we are getting from folks who already have received our draft Title IX policy is, “Who should do what role?”  The only hard and fast rules are (1) your Title IX Coordinator must be an employee; and (2) you cannot have the Title IX Coordinator or investigator also serve as the decision-maker or the individual who would hear an appeal. So the way that works out is often one of the following scenarios:

• For districts that have a superintendent and two principals, there are many ways you can staff these positions.  You may want to have the principals trained on all 3 positions: Title IX Coordinator, investigator, and decision-maker.  You can designate one (probably elementary principal given most sexual harassment will occur at the high school level) as the Title IX Coordinator, who can also investigate but can’t be a decision-maker.  The other can be the decision-maker for some cases and investigator for others, as needed.  You may need a 3rd decision-maker in some situations, which is likely something you’d need anyway given the chance for conflicts of interest in a smaller community.  Ensuring principals can be decision-makers as often as possible allows the same person to impose consequences on the student under Title IX and the state student discipline laws.  In this scenario, the Superintendent would be your appeal decision-maker, and you may need a different employee, such as a counselor, to facilitate informal resolutions.  

• For districts that have at least one more administrator (such as Activities Director, Director of Student Services, Director of Curriculum, Assistant Superintendent, Assistant Principal, etc.), one of those administrators can be designated as the Title IX coordinator.  Then one or more principals can be trained to be investigators and decision-makers as noted above, with the Superintendent serving as the appeal decision-maker. 

• For districts with only one superintendent and one principal, you will likely need to designate a guidance counselor or other employee to be the Title IX coordinator.

• For districts with only one administrator, you will likely need to designate a guidance counselor or other employee to be the Title IX Coordinator, and you will likely need to contract with a neighboring school, ESU, or professional firm to handle other roles, as needed.

• School districts can contract with other districts or ESUs for any of these positions except the Title IX Coordinator must be an employee of the school district. 

Provide Notice of Your Policy.  The new regulations require you to provide notice of your Title IX policy and your grievance procedure to a lot of people.  This includes posting it on your website and including it in your handbooks.  Once you have adopted your new policy and designated a Title IX Coordinator, you should provide these notices.

Train, Train, and then . . . Train Some More.  A big part of your ability to show compliance with the new regulations will be demonstrating that your employees, coaches, sponsors, volunteers, and Title IX team are properly trained.  The word “training” appears on 189 pages of the 2,000+ commentary accompanying the new regulations.

One of the most significant changes in the new regulations is expanding the people who can--on behalf of the school district--have “actual knowledge” of sexual harassment to ALL EMPLOYEES.  That means that if any employee has knowledge of sexual harassment in the school’s program or activity, then the district will be deemed to have such knowledge (triggering the district’s responsibility to  not be deliberately indifferent to such sexual harassment).  As a result, we recommend that you train all employees, board members, coaches, sponsors, volunteers, and agents of the school district on (1) identifying sexual harassment, (2) reporting allegations of sexual harassment.

There are also specific training obligations for members of your Title IX team, such as knowing when a report must be investigated, determining whether a complaint must be dismissed, carrying out an investigation and decision-making process free of bias or conflicts of interest, applying concepts of relevancy to a decision, and preparing related written reports and decisions.  One additional weird quirk in the regulations: you have to post the actual training materials (including any videos and written materials) on your website.  So you’ll need to make sure that whoever provides your training will let you do that without complaining of a copyright violation. 

KSB School Law will offer training to meet all of these requirements.  The format will be online, where individuals can be trained at their own pace and on their own schedule.  We'll also be able to track individuals that have completed the training, and provide that list to districts.  We believe that this is the most convenient way to help school districts and staff, and that is even more true during the COVID-19 pandemic.  More details about signing up for this Title IX training is accessible here.

Does this ALL have to be done by August 14?  In a perfect world--you know, a world in which you were not on version 88.9 of your revised and amended re-opening plan--you would have your new policy in place, sent notice out to the world, have your Title IX team identified, and completed all of the necessary training.  Unfortunately, 2020 is not consistent with that ideal world.  We do believe that you should have the policy adopted, notice published, and your Title IX team identified.

We have been asked whether districts should delay adopting the new Title IX policy in hopes that a lawsuit may delay implementation.  We disagree with that approach.  We strongly recommend adopting the policy prior to August 14.  For one reason, a failure to have an updated policy in place will be a violation of the regulations.  For another reason, even if a lawsuit or regulatory action later suspends the new regulations, having a compliant policy in place should not have a negative effect on the district.  If/when the new regulations are suspended (which is pure speculation), the district could choose to depart from the requirements of the updated policy and not necessarily violate the suspended regulations (because they would be suspended) or simply readopt the previous policy.  In short, there is very little (if any) downside to adopting a compliant Title IX policy, and the failure to do so could create problems for the district--both in terms of drawing OCR’s ire as well as subjecting the district to potential liability for money damages.

If you had to choose between training everyone and adopting the new policy, we recommend adopting the policy before August 14 and then doing the training later.  In terms or prioritizing the training, it will be most important to have all of your employees trained as soon as possible, and your Title IX team aware of their new responsibilities.  If you can’t have your entire Title IX team trained by August 14, that is just a practical consequence of the Department of Education making these regulations effective when they did.  Just try and get everyone trained as soon as possible.  Perhaps most important will be that you respond to allegations of sexual harassment on or after August 14, 2020 in accordance with the new regulations.

If you have any questions about the new Title IX regulations, our recommendations, your implementation plans, or getting your employees and Title IX team trained, please contact Karen, Steve, Bobby, Coady, Jordan, or Tyler at ksb@ksbschoollaw.com or (402) 804-8000.

Q&A with KSB, Back-to-School Edition!

When: Wednesday, July 8, 2020 at 10:00 AM CDT

Where: ZOOM (Info below)

What: Q&A with KSB, Back-to-School Edition!

On Wednesday, we’re going to cover a grabbag of all the questions we’ve been getting, including:  

• Staff and students returning, and those who do not want to return

• Options and legal considerations for requiring or just recommending masks

• Forced quarantines--the who, what, when, and where if you get a confirmed case of COVID-19 this fall

• Special education issues related to reopening and serving students in traditional, “hybrid,” and online-only settings (if school closes again)

As always, we will also answer any questions you have as we go and during a dedicated Q&A time during the webinar.  

JOIN THE ZOOM HERE!

U.S. Supreme Court Takes PRIDE in Its Work: Rules that Title VII Protects Homosexual and Transgender Employees

In 2010 Donald Zarda was fired from his job as a skydiving instructor after revealing he was gay to a student.  In 2013 Gerald Bostock was fired in Georgia for joining a gay softball league.  Also in 2013 Aimee Stephens was fired from a position as a funeral director after transitioning from living as a biological male to female.  All 3 sued their former employers under Title VII (of the Civil Rights Act of 1964), which prohibits employers from discriminating on the basis of race, color, national origin, sex, and religion.

On June 15, 2020, the United States Supreme Court ruled that each of these individuals had suffered unlawful sex discrimination under Title VII.  The Court ruled that an employer cannot “fire someone simply for being homosexual or transgender.”  In  Bostock v. Clayton County, 590 U.S. ___ (2020), the Supreme Court announced that Title VII prohibits employers from taking adverse action against an employee because the employee is gay or transgender.  

The Court further explained that an employer violates Title VII even when an employee’s sex is only a part of the reasons for firing.  “It doesn’t matter if other factors besides the [employee’s] sex contributed to the decision.”  The Court explained that it is impossible to discriminate against individuals for being homosexual or for being transgender without necessarily discriminating because of sex.

So what does this mean for schools?  You all have a lot on your plates, we get it.  But the Bostock decision will have immediate implications for schools that educators and school board members will have to consider before the 20-21 school year begins.

Public Schools May Not Make Employment Decisions Based on Sexual Orientation or Transgender Status.  Before June 15, employers in both Nebraska and South Dakota were not explicitly prohibited from firing or reassigning an employee based on his/her sexual orientation or gender identity.  In our experience schools were not making decisions on those bases anyway, but the Supreme Court has made clear that Title VII prohibits school districts from taking adverse employment actions--especially hiring and firing decisions--because an individual employee is homosexual or transgender.   

Bathroom and Locker Room Issues Are Still Uncertain, Particularly for Transgender Students. The Court tried to limit its decision to employment matters under Title VII.  The majority opinion made a point of saying that it did not “purport to address bathrooms, locker rooms, or anything else of the kind” under Title IX or any other laws.  Some dissenting justices were not convinced, stating, “The Court’s brusque refusal to consider the consequences of its reasoning [on issues like bathrooms and locker rooms] is irresponsible.”  

It is difficult to imagine that this decision will not have at least some effect on complaints related to transgender individuals’ access to single-sex facilities like bathrooms and locker rooms.  As those disputes arise, the application of Bostock will be interesting.  For example, the Court concluded that in the employment context, an “individual’s homosexuality or transgender status is not relevant to employment decisions.”  However, an individual’s sex is of course relevant to whether that person can use a single-sex bathroom or locker room.  The critical question is whether a person’s sex--for transgender access to single-sex facilities--is limited to their biological sex at birth or whether it may be defined by the sex (or gender) with which the transgender person later identifies.  In strict terms, the Court’s Bostock opinion did not explicitly address that issue.

Bostock Will Be in the Forefront in Some Cases Under the New Title IX Regulations. Schools are already scrambling to comply with the new Title IX regulations, which become effective on August 14, 2020.  (We blogged about those new regs here.)  The Court tried to avoid saying categorically that homosexuals or transgender individuals are “protected classes” such that any harassment on that basis could trigger obligations under Title IX.  However, we know advocates will understandably argue that the broad conception of discrimination “because of sex” in Bostock will extend Title IX protections for students in public schools in a variety of ways. Schools should consult with legal counsel on the impact of the Court’s opinion in situations where students allege harassment or assault based on their sexual orientation or transgender status.  Training for all staff about these issues has now become even more urgent under the new Title IX regulations, as well.   

As you consider these and other issues, we recommend that you speak with your school lawyer or contact Karen, Steve, Bobby, Coady, Jordan, and Tyler at ksb@ksbschoollaw.com or (402) 804-8000 to discuss these issues.

Zooming into June? Board Meetings, DHMs, and EOs

For a few months now, we’ve been operating under directed health measures (DHMs) that center on 10-person limitations.  Last week, the Department of Health and Human Services released an outline of changes to upcoming DHMs as part of “Phase II” of Nebraska’s COVID-19 response. 

**[Note: if your school or ESU is located in Hall, Hamilton, Merrick, or Dakota Counties, your DHMs will be the Phase I type.  The information below does not apply to you.  You should consult with your legal counsel about what that means for your board meetings in June.]

Under the Phase II DHMs, beginning June 1, the number of people in a “gathering” in one location will generally increase from 10 to 25, or as much as 25% of that space’s rated capacity.  Club baseball, softball and volleyball teams can begin practices.  And school gyms and weight rooms may open so long as they follow the DHM requirements.  This also will allow school districts to undertake some in-person instruction and services this summer.  

As we emphasized in our KSBlog post last week, the Phase II DHMs do not require school districts to reopen their facilities. However, the new DHMs do require school districts to think through how they are going to hold their June board meetings, as your options have changed once again. 

A little recent history:   

On May 19, 2020, the Governor signed Executive Order 20-24, which extends Executive Order 20-03 through June 30.  Remember that EO 20-03 allows boards who cannot otherwise do so to meet electronically due to COVID-19 by waiving certain requirements under the Nebraska Open Meetings Act.  We covered all of that extensively, and you can access it and all of our other information on KSB’s COVID-19 page.  

Some political subdivision boards (like the Lincoln City Council) were reluctant to take the Governor up on that flexibility, based on a variety of concerns.  But many boards did meet electronically.  The e-meetings played to mixed reviews and led to some...interesting stories. On the other hand, we know that many board meetings were conducted efficiently, effectively, and, safely in the face of uncertainty.

Remember the Attorney General’s office has made clear that EOs 20-03 and 20-24 only allow boards to meet electronically and exclude the public and media from physical attendance when no quorum of the board is present together.  If a quorum of the board gathers together, then the media and the public get to be in that room.  If 11 people had shown up under the Phase I DHMs, then arguably you would have violated the DHMs even if you satisfied the Open Meetings Act.  So, no, you cannot have the board and administrators gather together in one room and force the public and media to watch online or from another room.  

But you can meet electronically through June 30, if you do so consistent with the law as modified by EOs 20-03 and 20-24.  Which brings us to our next question:

How might the Phase II DHMs change your thinking on in-person board meetings occurring after June 1?

As proposed (find outline of changes here), the Phase II DHMs going into effect on June 1 will permit “gatherings” up to the greater of 25 people (excluding staff) or 25% of rated occupancy (not to exceed 3,000). 

If you have a rated occupancy of 1,000 in your auditorium, you could have an in-person board meeting with your 6 board members present along with 244 of your most supportive patrons!  Similarly, you can host the meeting in your regular meeting space and have a total of 25 people within that room, even if it is only designed to hold a smaller number.  However, any such gatherings must follow physical social distancing requirements.  Wherever you meet, if you meet in person, make sure the gathering size and social distancing requirements are met.

So, what are our options for meeting in June?

1. Meet in person in a space large enough to accommodate the board, other school officials, the public, and media.  That must be done within the gathering size limitations and in a space that is large enough to permit social distancing.  We imagine the commons area, auditorium, or gym would work for about any school in the state to hold an in-person meeting (unless you plan to talk about whether you’ll have sports in the fall...then the gym would be “full”).  Keep in mind that if you meet outside of your normal meeting place, you must make reasonable efforts to allow any attendees to see and hear the meeting.  You may need to use microphones, for example.

2. Have a “hybrid” meeting where no quorum of the board is present, but some members attend in-person and others attend electronically.  For example, you could have 3 board members attend in person and 3 board members attend virtually.  To do so, you will need to comply with the requirements of the EOs and follow the AG’s guidance.

3. Have an electronic meeting where all board members attend electronically. To do so, you will need to comply with the requirements of the EOs and follow the AG’s guidance.

We hope this information was helpful as you turn your attention to upcoming board meetings.  If you have any questions about Open Meetings Act requirements, DHMs, meeting notices, EOs, or any other issues, feel free to contact any one of us at KSB by using our full team email: ksb@ksbschoollaw.com

“Waiving” the Flag for the Resumption of Summer Activities

Most school years, students and staff cannot wait to get out of the building on the last day of school.  This year is different.  As we wrap up the academic year, students and staff are clamoring to be allowed back into school buildings.  Now politicians and public health officials are beginning to relax the closures mandated by COVID-19.  Last week, the Governor announced that schools may open weight rooms, gyms, and outside facilities for strength and conditioning programs.  That is in addition to baseball/softball fields and events, with restrictions, beginning June 1.  The Nebraska School Activities Association followed up with the release of its guidance on reopening these facilities to allow students to participate in summer conditioning.  And this past Monday the Commissioner of Education announced that the Nebraska Department of Education will have guidance for in-person summer learning posted on its Launch Nebraska website, which could occur as early as June 8.  

Schools are not required to open their facilities for in-person activities.  Each board of education, in consultation with their administrative teams, will have to decide whether to open up their district’s facilities.  One factor that educators are considering is a waiver protocol.  In fact, ALICAP and other insurance carriers are advising schools that it is required that families who wish to have their students participate in events occurring in the school building execute a waiver.  

While we are as excited as you are to resume in-person activities at school, we are a bit cautious about relying too heavily on waivers.  Nebraska courts have narrowly interpreted both the effectiveness and enforceability of general liability releases and waivers.  As you are considering whether to open your facilities to baseball, softball, summer conditioning or any form of academic work, you should not assume that a waiver will preclude families’ claims against the district.  

Now that does not mean that we think waivers are a bad idea.  We are advising our clients to secure signed waivers from families before students participate in activities at school this summer.  It does mean that the wording of those waivers is important and that they need to be as specific as possible.  It also means that school officials should be sure they understand that a waiver is not a way to be “golden” in winning or avoiding a lawsuit.  Instead, that waiver and release will be one piece of evidence that the school can use if you are sued.  We have provided these waivers to clients who have requested them.  We will continue to update the form of those waivers as schools are allowed to expand the activities allowed on their premises.  This means that families may grumble about being required to sign multiple waivers as the summer progresses.  Please do understand that this isn’t lawyers writing legalese because we love it (we actually don’t).  But the importance of waivers and releases being clear and specific may mean that we need to secure signatures from parents through each step of our gradual reopening.  

For now, if your school district is going to open its buildings on June 1 for conditioning or June 8 for summer instruction, you should contact your school attorney to secure the appropriate release.  If you have questions about potential liability for summer activities, contact your school attorney or contact us at KSB (ksb@ksbschoollaw.com).

KSB HAPPENINGS - MARK YOUR CALENDAR

As Nebraska schools prepare to wind up the 2019-20 school year, educators are already preparing for the 2020-21 school year -- whatever that may look like.  We wanted to let you know KSB’s plans for policy updates, handbooks, Title IX, and other preparation work for next school year.  So open up your calendars, we’ve got some entries for you to fill in! 

MAY 29, 2020 - POLICY UPDATE NO. 1

Based on the delay of the Unicameral session, we will have to send out two sets of policy updates this year.  (We know, we know….)  If you are a KSB Policy Service Subscriber or if you subscribe to our updates, you will receive your first set of updates on May 29, 2020.  Our handbook updates for student, staff, and activities will be released after the policy updates are completed.

JUNE 1, 2020 - 10:00 AM 2020 POLICY UPDATE WEBINAR

Like past years, we will be conducting a ZOOM webinar to review and discuss the policy changes and answer questions you may have about them.  You are welcome to ask other administrators or board members from your district or ESU to sit in on the webinar if you'd like.  There is no limit of attendees from each district or ESU.  The webinar again will be recorded and posted to the website for subscribers if you are not able to attend.

JUNE 3, 2020 - TITLE IX WEBINAR

On Wednesday, May 8, 2020, the U.S. Department of Education released the final rule containing changes to the Title IX regulations.  We will be holding our initial Title IX webinar on June 3, 2020, 9:00-12:00 CDT.  The regulations are set to become effective on August 14, 2020.   We plan to cover the following:  Overview of the changes in the new regulations; the new definitions for what is covered by Title IX; the new Title IX grievance process and how it will (or won’t) align with student discipline and special education laws, given the fact that it will take several weeks to complete; Board policy decisions and changes you will need to make; administrative processes and decisions you will need to make about receiving, investigating, and deciding Title IX complaints; planning policy updates, handbook updates; and more advanced training for your full staff and staff members who will serve roles in the new grievance process.

If you would like to register, click here.  

SRO TRAINING - GOING VIRTUAL

KSB School Law had planned to host SRO/administrator training on June 1-2, 2020 to satisfy the requirements of LB 390 (2019).  LB 390 requires assigned school resource officers and school security guards to attend a minimum of 20 hours of training focused on school-based law enforcement. In addition, LB390 requires a minimum of one administrator in each elementary or secondary school where a school resource officer or security guard is assigned to attend a minimum of 20 hours of training focused on school-based law enforcement. This training must be included as part of the memorandum or agreement you have in place between your school and law enforcement entity you work with by January 1, 2021.

LB 390 requires the training to include at least the following: school law, student rights, understanding special needs students and students with disabilities, conflict de-escalation techniques, ethics for SROs, teenage brain development, adolescent behavior, implicit bias training, diversity and cultural awareness, trauma-informed responses, and preventing violence in school settings.

We are in the process of producing this training digitally, in a slightly different format than we had planned prior to COVID-19.  We will have more information next week with the first training segments available starting on July 1, 2020.  We are setting up a site where you will be able to register, complete the training, and print your certificate upon completion of the 20 required hours.

POLICY UPDATE NO. 2

Like you, we’ve heard that the Unicameral isn’t ruling out resuming in June, but later in the summer (if not the fall) is more likely.  There are several bills that have been passed and signed that will require policy changes, handbook changes, or at least consideration from schools and ESUs.  There could be additional bills that are passed during the resumed session.  And, it’s anyone’s guess what issues may be undertaken as a result of COVID-19. 

Once the session concludes, we will complete additional required policy and handbook changes at that time.  The main reason for waiting is that bills without emergency clauses don’t become effective until 3 months after the session adjourns.  Even if the session resumed tomorrow and finished in early June, those bills wouldn’t become effective until September.  We do not want to ask you to implement policies with delayed start dates or confuse your board members about what is required, and when.  Speaking of which...

TITLE IX POLICY UPDATE and ADVANCED TRAINING

If the new Title IX regulations are implemented as they were released last week, you will have many difficult legal and practical decisions to make, to be sure.  You will need to update policies, handbooks, nondiscrimination notices, forms, and more.  We blogged about a brief summary last week, which you can read here.  You should share at least these preliminary items with your administrative staff.

We are working on reviewing all of the information released by the USDOE (all 2,100 pages worth) and working on policy and other changes now.  However, we are trying to balance several things: the likelihood that Congressional action or lawsuits will be filed to stop implementation of the new regulations; the difficult decisions administrators and boards will need to make after understanding these new obligations; the need to get policies and handbooks updated to be printed and/or prepared for release by July and August; the need to train staff on those policies, specifically; the need to train administrators who will implement the new procedures; and many other considerations.  

We hope to have draft policy updates on Title IX to review during our webinars in early June, but we fear putting out updated policies too early.  We’re continuing to analyze the best route here, and we’ll keep you posted.

As that timeline becomes more clear, we will also offer more specific suggestions and training for categories of employees who will need it.  For example, all of your classified staff will need more detailed training, but that training will be much different than the training your investigators, decision makers, and Title IX Coordinators will need.  We don’t think the new regulations will lend themselves to a one-size-fits-all training heading into the school year.

2020-2021 COVID Legal Considerations

Once we get through required or prudent policy updates “as usual” for the year, we also plan to dedicate some time to review NDE’s current guidance (including the Launch Nebraska website) and their response to the Rule 62 petition submitted by ESUCC.  We plan to review aspects of our policies and handbooks you may want to review as 20-21 gets closer.  We also plan to consider the special education and other considerations you can be thinking of this summer to make life and processes easier as you plan for school reopening--whatever that looks like this fall.  We’ll tailor dissemination of that information in a way that makes sense to help our awesome clients.

Take Your Compliance to the IX’s -- KSB’s (rescheduled) Webinar covering the New Title IX Regulations

When: Wednesday, June 3, 2020 - 9:00-12:00 CDT

Where: ZOOM  - Register HERE 

What: New Title IX Regulations

On Wednesday, May 8, 2020 the U.S. Department of Education released the final rule containing changes to the Title IX regulations.  The regulations are set to become effective on August 14, 2020.  As you know our webinar was originally scheduled for March 24, 2020.  Due to the pandemic and also because the new regulations were not out, we postponed that webinar.  If you were previously signed up, we have your registration.  Just put the new date on your calendar.  If you would like to register, click here.  

We plan to cover the following information:

• Overview of the changes in the new regulations.

• The new definitions for what is covered by Title IX.

• The new Title IX grievance process and how it will align with student discipline and special education laws, given the fact that it will take several weeks to complete.

• Board policy decisions and changes you will have to make.

• Administrative processes and decisions you will have to make about receiving, investigating, and deciding Title IX complaints.

• Planning policy updates, handbook updates, and more advanced training for your full staff and staff members who will serve roles in the new grievance process.

New Title IX Regulations (FINALLY!) Released: A Taste of the Bitter and the Sweet

At long last, on Wednesday the U.S. Department of Education released the final rule containing changes to the Title IX regulations.  The regulations are set to become effective on August 14, 2020, right as we’ll be reopening (maybe?) school for the 20-21 year.  

You can see the news release and read all of the summary documents and the full final rule by clicking here.  If you didn’t know this process has been in the works since November 2018, why did you pick the middle of a pandemic to come out from under your rock?!  After 18 months of work on the new regs, in addition to a 1-hour YouTube video there are about 2,100 pages of rules, summaries, and guidance.  

All of this will ultimately be boiled down into about 40 pages of actual regulations, then interpreting how best to implement them and what they require.  We don’t have great answers yet.  At KSB we try very hard to get our clients the information they need without causing unnecessary panic or creating work for you when it might not be needed just to rush to market.  COVID-19 has proven an interesting test of that philosophy, and in our opinion these Title IX regulations will require the same deliberation for legal and practical reasons.  Plus, no one has read all 2,100 pages since Wednesday!

To be clear, if these regulations are implemented as released they will take a lot of work from lawyers and administrators both prior to August 14 and once they are in effect.  They will require substantial changes to policies and handbooks.  They will require significant training for all staff.  They will require several administrative staffing and duty assignment decisions.  They will create practical problems that will be tough to solve without collaboration, especially for smaller schools.  We’ll cover all of that in the coming days, weeks, and months leading up to August 14.  For now, our advice is to stop and take a deep breath (at least 6 feet away from anyone else).  You’ve got plenty to tackle right now.

We also need to see if these regulations actually become effective on  August 14.  As we type, there are dozens of attorneys, advocacy groups, and legislators preparing lawsuits and political strategies to stop the implementation of these regulations.  We’ve been digging into the regulations since they were released, but we know 3 months is an eternity in politics and federal court lawsuits--especially during a pandemic.  It may be that the effective date is ultimately put on hold by federal court injunctions or Congressional action.  We’ll see.  Part of our assessment for rolling out policies, training, and other guidance will include tracking these developments closely.  Anyone remember the FLSA regulation saga from a few years back when you all amended your classified staff contracts for salaried employees and then that Texas judge stopped them cold a few days before they became effective?  Yeah, us, too...

For now, here is a quick recap of some of the high and low points in the new regulations, and some key questions we’re digging into:

1. The regulations narrow the definition of “sexual harassment” and formally adopt the “deliberate indifference” standard.  These changes are more in line with federal judicial decisions than with past OCR enforcement positions.  Since most Title IX issues are handled through OCR and not litigation for our clients, this will be an important change.

2. The regulations appear to make “any employee of an elementary or secondary school” someone who can trigger the school’s Title IX obligations.  This is a huge change from the previous regulations which limited “responsible employees” to those with authority to take corrective action.  Arguably, every school employee now needs much more substantial Title IX training.

3. The regulations clarify that the Title IX Coordinator must provide non-disciplinary “supportive measures” (formerly called “interim measures”) and must have the authority to implement “corrective measures,” including discipline, as part of the process.  The supportive measures must be made available to both parties and “may include counseling, extensions of deadlines or other course-related adjustments, modifications of work or class schedules, campus escort services, mutual restrictions on contact between the parties, changes in work or housing locations, leaves of absence, increased security and monitoring of certain areas of the campus, and other similar measures.”  In some circumstances, these measures will contradict a student’s IEP or 504 plan in ways that will likely require even more team meetings for students with disabilities involved in the new Title IX processes. 

4. The new Title IX “grievance process” will require at least 3 people: a Title IX Coordinator (who must be an employee), an investigator, and a decisionmaker--all of whom must be different people. Then, both the victim and the accused must be afforded an “appeal procedure,” so that’s probably the superintendent (or the school board) who will hear the appeal and arguably shouldn’t be part of the initial grievance process.  That’s not to mention meeting the requirements of state student discipline laws.  In Nebraska, for example, the Student Discipline Act process could take at least one principal, an impartial hearing officer, and the superintendent.  So, there’s at least an argument that the Title IX grievance process combined with the student discipline process may require a minimum of 4-5 but as many as 8 different people to accomplish the due process and impartiality requirements of the laws.  One of our priorities at KSB is figuring out practical steps that schools with fewer than 8 administrators can take to comply with these requirements. 

5. The new Title IX investigation and decision making process also requires very specific timelines and steps.  The accused party must be given notice of the complaint and “sufficient details” along with “sufficient time” to prepare for the initial investigative interview.  After an investigation is complete, both parties and their representatives must be given electronic or paper copies of all evidence, and they have 10 days to review and respond to it.  The investigator then compiles an investigative report, which is given to both parties.  Once the investigative report is complete but prior to any final determination, the parties have another 10 days to respond to the investigative report, including the ability for the parties to ask written cross-examination questions to the other party.  How is that going to work with a couple elementary school students?  After all this, the decision-maker then compiles the final decision, which is shared with both parties, and the appeal process begins.  

6. By our count the new regulations require a minimum 23 days to complete the Title IX investigation and decision making processes.   This will be very difficult to square with the procedural requirements in student discipline laws, the IDEA, Section 504, and others.  That’s not to mention trying to pull off all of these processes given accessibility concerns for students and parents, in terms of age, disabilities, language barriers, and others.

We will continue to review the regulations and plan to provide more thoughts on how they will affect your policy and training schedules soon.  For KSB Policy Service subscribers, we are working on policy updates throughout May.  With the disruption to the operations of the Unicameral and Congress and now these new Title IX regulations, we are working on the best way to structure policy and handbook updates this year to reduce your workload.  More on that to come, as well.  For now, if you have any questions about the new Title IX regulations or want to talk about tentatively scheduling training and things like that, contact your school attorney or contact us at KSB (ksb@ksbschoollaw.com)!

Pomp and Circumstan- er Coronavirus Don’t forget Special Education, Section 504 and ADA Accessibility Issues In Planning Your COVID-19 Graduation Ceremonies

Even with the current easing of Nebraska’s statewide directed health measures in many counties, area health departments, the Governor’s office and Education Commissioner Matt Blomstedt continue to warn against Nebraska school districts holding in-person graduation ceremonies.  Nebraska school districts are showing off their diversity and creativity in planning how to honor their graduating seniors in light of the COVID-19 school closures across the state.  Some schools are holding virtual graduation ceremonies, some are doing a form of a “drive through” commencement, and still others have scheduled ceremonies to occur later this summer.  Regardless of the format of your graduation ceremony, educators should be mindful of the implications that these new plans could have for special education students.  Public schools also need to be sure that all graduation events are accessible to students, parents and members of the public who may have a disability.  

Graduation and Special Education 

Regardless of the format of your graduation ceremony, the TIMING of the end of your school year will be significant as it relates to the services a special education student receives.  Most IEP teams use their school district’s school calendar as the baseline for services that will be provided to special education students.  The problem is that the COVID-19 outbreak has wreaked havoc on everyone’s planned spring schedule.  This will affect your special education differently based on what your school is doing with its 2019-20 calendar. 

Graduating seniors who have individualized education programs are entitled to all of the procedural safeguards that normally apply under the IDEA, even during COVID-19 closures.  Graduation from high school with a regular high school diploma or aging out of special education constitutes a change in placement, which triggers the procedural safeguards of the IDEA.  At a minimum each of these students should receive prior written notice of the change in placement.  Additionally, regardless of whether the student's IDEA eligibility is terminating due to age or graduation with a regular diploma, the district must provide the student with a summary of his or her  academic achievement and functional performance, which must include recommendations on how to assist the student in meeting his postsecondary goals.

For non-graduating special education students, school districts face less paperwork but more options.  

Schools that are not providing any education--and instead are only providing enrichment--should discontinue providing enrichment to special education students at the same time they discontinue providing enrichment to general education students. 

Schools that are providing FAPE-implicating educational services and that will continue to serve students through the original date set as the end of your 2019-20 school year should simply continue to serve special education students to the end of the year. 

Schools that are ending their school year early will need to refer to each student’s IEP.  If the IEP says that services will be provided through a specific date, the safest thing to do is to provide services to that date even if you have “ended” the school year early for general education students in light of COVID-19.  On the other hand, if the IEP says that services will “follow the school calendar,” education leaders will have to decide whether to end special education services when the school year ends for general education students or whether to continue services through the date that the school calendar originally set as the end of the 2019-20 school year.    

Accessibility to Graduation Ceremonies

Most school districts do a good job of thinking about physical or architectural barriers that may exist in their traditional in-person graduations. However, shifting the festivities online or to a different physical location means schools will need to ensure their ceremonies are accessible to individuals with hearing impairments, visual impairments, or other disabilities that might affect participation.  Representatives of your school district should reach out to the families of individuals with known disabilities so they can identify and address accessibility concerns in advance.  Districts should also run through the modified ceremonies ahead of time, with an eye toward identifying and addressing any accessibility concerns.

For online ceremonies, school district staff should be sure to accommodate individuals with hearing or visual impairments.  Schools should consider providing a sign language interpreter or closed captioning for those with hearing impairments.  Ideally, all images will have meaningful labels for visually-impaired individuals who rely on screen readers. At a minimum, each school district should post a notice on its website containing the name and contact information for a person to contact should an individual have difficulty accessing or participating in the graduation ceremony.

Drive-through ceremonies should also be thoughtfully designed.  If a student or parent doesn’t drive, the district should consider providing a driver.  Similarly, if the student has a mobility impairment that would require specialized transportation, the district will likely have to provide both an accessible vehicle and driver.  

Conclusion

These are just a few of the many details that should be considered when planning for improvised or rescheduled plans to honor seniors and how you plan to end your school year.  There are certainly a lot of logistics to consider in terms of finding an appropriate ceremony that fits your school and your community.  However, these ceremonies and alternatives have legal consequences that make it worth thinking them through ahead of time.  As you make plans for what you will do in lieu of your traditional graduation, including when it will occur, we recommend that you contact your school attorney, or contact Karen, Steve, Bobby, Coady, or Jordan at ksb@ksbschoollaw.com or (402) 804-8000.

“You Can Check Out Anytime You Like, But You Can Never Leave;” Winding Up the 2019-20 School Year for Special Education Staff and Students

As the 2019-20 school year lurches toward its end, special educators are turning their attention to the next steps for their students: end of year progress reports and extended school year services.  As with almost every other aspect of educators’ lives during the COVID-19 pandemic, these things will look different this year.    

Progress Reports

School districts are required to provide written information to parents about their students’ progress toward IEP goals and objectives.  The federal regulations merely say that these reports must be “periodic.”  Section 007.07A4 of Rule 51 does not provide any additional requirements beyond the federal regulation.  While this gives school districts a lot of flexibility, special educators are uncertain how to report progress during the closure of school buildings to in-person student instruction statewide.  So, what follows is a step-by-step guide on how to prepare special education progress reports during a global pandemic (and, actually, at any other time as well!).

Step 1: Check the IEP

The IDEA does not technically require that schools issue progress reports -- it requires that each IEP identify when progress reports will be sent.  In Nebraska’s Student Records System program, your obligation to report student progress is nestled underneath each annual goal in a student’s IEP.  Every case manager should start by checking every single student’s IEP to see what the team has promised the family. 

Step 2: Determine if You Have the Data To Report Progress

IEP teams are not required to identify the specific metrics that the school will use to report a student’s progress.  But if the IEP says that you will report on a specific assessment, you have to use it.  For example, many IEPs for students with specific learning disabilities in reading or math state that they will use MAP testing to assess a student’s growth in those content areas.  Since schools will be unable to administer MAP testing, you will need to note in the progress report that the district is unable to report progress using that metric.  Although school attorneys are not big fans of identifying educational methodology in IEPs (for reasons like those we face here), if the IEP team promised to measure progress using a specific methodology or metric, we are obligated to report on the progress using that metric, not substituting our own.  

A quick case reference here will be helpful.  In Seattle Sch. Dist., 113 LRP 19336 (SEA WA 4/03/13), the student’s IEP stated that he would be able to spell 3 of 5 third-grade level words correctly.  When the goal was written, the student was entering third grade but was only spelling at a first grade level.  The resource teacher moved the student through the second grade spelling curriculum and reported on progress reports that the student “was spelling second grade words with 60% accuracy.”  The parents placed the student in a private school and sued for tuition reimbursement arguing, among other things, that this progress report was meaningless because it did not use the benchmark set by the IEP.  The hearing officer agreed.  “The progress report contains no measurement of the goal, which was to spell three out of five words correctly at the third-grade level on the Brigance. There is no evidence whether the Student was by now able to spell zero, one, or two words out of five correctly at the third-grade level. …  Perhaps the Brigance does provide information on how well a student does on a level above his own. The progress report's comment on weekly spelling tests does not tell us this, either.”

The lesson from Seattle and cases like it is that you MUST use the benchmarks set by the IEP document.  If you cannot measure a student’s progress using the tools identified in the IEP because of the COVID-19 closures, you should candidly report that.  You can then then include any other information that would shed light on a student’s progress in the comments section of the progress report.      

Step 3: Remember Transition Goals for Students 16 Years of Age or Older

Neither the IDEA nor Rule 51 require LEAs to report progress that students are making on transition goals.  However, the federal Office of Special Education Programs has issued guidance that requires schools to report specifically in transition goals.  In Letter to Pugh, 117 LRP 3733 (OSEP 1/18/17), OSEP reasoned that a student’s transition goals will necessarily include academic and functional goals, and that a student’s progress in those goals must be reported.  This could prove particularly challenging with life skills goals that may require practice and modeling -- tasks like doing laundry and grocery shopping.  If you provided the student’s family with guidance on how to assist students in learning these skills, be sure to solicit their input on how the student is doing in meeting those goals.  However, these students may need to be marked as making incomplete progress until we can work with them in person after schools reopen. 

Step 4: Use the Data You Do have to Articulate Progress

The IDEA does not require you to ensure that a student will make adequate progress toward his/her annual goals.  Instead it requires school districts to design IEPs with appropriately ambitious goals and to implement those IEPs with fidelity.  The U.S. Supreme Court stated in Endrew F. that students with disabilities are entitled to educational goals which are “appropriately ambitious in light of the child’s circumstances.”  Every school child’s circumstances currently include living through a global pandemic, and that will necessarily have an effect on students’ educational achievement, regardless of whether or not they have a disability.  

Special educators should accurately report a student’s progress toward the goals which were developed prior to the school closures, and be candid if a student has not progressed as we would have hoped during the closures.

An Example 

An example might be useful at this point.  Let’s say that a student’s IEP has the following life skill goal:

In 36 academic school weeks, Student will learn how to go to a restaurant, place an order and calculate how much money to give the cashier after being told what she owes.  

The goal’s short term objectives include:

• Student will be able to read a menu up to a given dollar amount with 80% accuracy 4 out of 5 attempts

• Student will be able to make eye contact and engage in appropriate social interaction with restaurant staff with 80% success in 4 out of 5 attempts.

• Student will provide cash payment to restaurant staff in appropriate increments above the total (e.g. payment with a $20 bill for a charge of $16.75) with 80% success in 4 out of 5 attempts.

Obviously, this student will not be able to practice all of these skills during a COVID-19 closure.  If the student has been able to practice reading a menu, the district can report on that.  However, the student simply cannot practice the second and third benchmarks during closure.  The progress report should report “progress made, goal not met.”  For the prompt, “Progress sufficient to meet goal by end of IEP year,” the answer is probably “no.”  

Then in the comments the school can write something like, 

“Due to the statewide directed health measure necessitated by the global COVID-19 pandemic, school district staff were prohibited from in-person instruction of all students, including Student.  Therefore she was unable to practice the second two benchmarks under this goal.  Instead, district staff assisted Student in learning how to access online menus and how to calculate what she would have to pay if she did order a meal online.  Student was successful in reading an on-line menu and selecting her preferred meal in 5 out of 5 attempts.  Student was able to successfully estimate whether her total for a meal order was more or less than an identified amount in 3 out of 5 attempts.  Student will have the opportunity to practice and master the remaining skills under this goal after the school district reopens for in-person student instruction.”  

We have had several KSB clients ask us to draft stock wording that they can place into progress reports to document the COVID-19 closures.  That wording will be different depending on whether the school offered FAPE-implicating education, enrichment or closed completely.  As with many of the forms we have drafted during the COVID-19 closures, we believe that these forms are “legal advice” that schools should secure from their legal counsel.  If you are a KSB client who would like to see these samples, please e-mail Shari at shari@ksbschoollaw.com and she will send them to you (we are charging a flat $150 for these forms).  We cannot emphasize enough, however, that progress reports will have to be individualized based on the student, the IEP and the way the continuity of learning plan that districts put in place after the COVID-19 closures.    

Extended School Year Services (ESY)

Under IDEA, the IEP team determines whether a student needs special education and related services beyond the normal school year to receive a free appropriate public education (FAPE). The Nebraska Department of Education has an excellent technical assistance document from 2018 which identifies when a student is eligible for ESY:

The purpose of an extended school year is to prevent or slow severe skill regression caused by an interruption of special education services during extended periods when school is not in session. . . . An extended school year may be provided only when it is determined that a child might regress in a critical skill area to such an extent that recoupment of the skill loss would require an unusually long period of time to recoup or make it unlikely or impossible to recoup the present level of educational performance. . . . Some children with severe disabilities may consistently demonstrate a limited array of skills, but not demonstrate a significant regression/recoupment factor in any of the skills. Therefore, these children would not be appropriate candidates for ESY services.”

How do these rules and factors apply in this new environment?  Local school districts probably have three sets of students: 

Students Already Eligible for ESY

If an IEP team has already decided that a student needs extended school year services, it is hard to see how the COVID-19 closures would change that determination.  District staff should reach out to these families and ascertain (a) if they are still willing to have their student participate in ESY and (b) if they will agree to those ESY services being provided electronically rather than in person.  If the family will not agree to amend the location of the ESY that is identified in the student’s IEP, you will need to hold an IEP team meeting to set the location of the ESY. 

Students Already Deemed Ineligible for ESY 

If an IEP team has already concluded that a student does not struggle with unique dangers of regression during school breaks that cannot be recouped within a reasonable period of time after school resumes, the student is not currently eligible for ESY.  If a parent requests ESY now, the team should consider that request on an individual basis.  Keep in mind that that NDE’s technical assistance document states that ESY “is not to enhance the present levels of educational performance exhibited by children with disabilities at the end of the regular school year.”  In other words, ESY is not the appropriate vehicle to provide a little extra assistance to any special education student who might benefit from it.  The student must show a unique need based on the dual regression and recoupment standard.   

Students for Whom ESY Has Yet to Be Determined 

Many IEP teams defer the decision on ESY until the spring.  This practice is lawful, because the team is permitted to gather data on a student’s progress in meeting his/her annual goals before deciding if the student is in danger of losing critical skills due to regression that cannot be recouped when school reopens.  For these students, school staff should first reach out to families to see they would participate in ESY services if the school district offered them.  If the parents indicate their refusal, the LEA can document that referral and avoid holding a full IEP meeting.  If the parents are still open to their child participating in ESY, the school should convene the student’s IEP team.  The team should consider the factors outlined above, including reviewing regression and recoupment data from prior “scheduled breaks in instruction” such as last summer or the winter break.  The team must ultimately decide whether they predict that the student will regress so significantly over the summer that catching up on those skills would harm the student’s continued learning next year.

As you make ESY decisions, remember that ESY is not required based on a lack of expected progress on IEP goals (particularly considering the school closure and remote learning disruption impacting all students). Also remember that ESY is distinct from compensatory education. The school closure does not directly impact the analysis of ESY eligibility, and students should not qualify for ESY solely because of the school closure. 

Conclusion

As with everything else affected by the COVID-19 closures, there is not a single “right” answer to the questions of how to report progress or provide ESY to special education students in the spring of 2020.  If you have questions about a specific student or want to have a particularly difficult report reviewed, you should consult with your school district’s attorney.  Although we are also learning about the virus issues as we go, school attorneys can provide districts with significant protections when drafting these documents.  If you have questions about these or any other legal issues, please don’t hesitate to contact Karen, Steve, Bobby, Coady or Jordan at ksb@ksbschoollaw.com.