Nebraskans Against Government Overreach Protests

Nebraskans Against Government Overreach Protests

We have heard from many of you seeking guidance on how to respond to protests that a group called Nebraskans Against Government Overreach is attempting to organize at numerous school district locations across the state on May 14, 2021.  (In case you haven’t seen information about these proposed events, you can check out the organization’s Facebook page here.)  Regardless of how individual administrators or board members may feel about the ideas espoused by this group, your legal obligation is to respond to this group like you’d respond to any other protesters, without advantaging or disadvantaging them based on their viewpoint or content of their message.  

 That Pesky First Amendment Again.  As an initial matter, you cannot just prohibit this group from gathering outside your school buildings without considering your policies and practices on facility use and gatherings during the school day.  After all, the First Amendment protects “the right of the people peaceably to assemble.”  

 You do not have to allow these demonstrations to happen wherever and whenever the group wants on school property.  The Supreme Court has said “the government’s ownership of property does not automatically open that property to the public.”  U.S. v. Kokinda (1990).  However, you should treat all groups, including this one, the same way.  For example, if the Gideons are permitted to distribute their Bibles on school grounds after school out of the way of your bus and pick-up traffic, this group should be given the same courtesy.  However, if you ban facility use during the school day by outside groups, you could ban this group on the same basis    

 You likely do have to allow this group to gather on the public sidewalk or street outside your school.  In United States v. Grace (1983), the U.S. Supreme Court wrote that the “public sidewalks forming the perimeter of the Supreme Court grounds, in our view, are public forums and should be treated as such for First Amendment purposes.” The Court explained that these same protestors would not have to be allowed inside the Supreme Court building or on the steps right outside the Court.  However, the Court has clarified that “the location and purpose of a publicly owned sidewalk is critical to determining whether such a sidewalk constitutes a public forum.”  Kokinda (1990).  You may want to communicate with your local officials and law enforcement regarding any restrictions or permitting requirements they may have on public streets and sidewalks just off school grounds

 You can require these demonstrations to remain orderly and non-disruptive.  For example, the protestors must allow pedestrians to pass by and must not block building entrances or disrupt classes.

 You should plan thoughtfully for what may happen on May 14th.  For the most part, we think protests like these are best met with public indifference.  When someone from the community asks you about the protests, you should shrug and say something like, “They have a right to protest and we are going to focus on kids like we do every day.”  

 That does not mean that you shouldn’t spend some time thinking through various scenarios.  We don’t know your school as well as you do, of course, but here are a few items you might consider: 

•  You should communicate with local law enforcement to see if they will have officers present or available to be sure the protest is orderly and in compliance with any applicable village/city or county requirements.  

• You should consider if there are areas outside your building where even protesting on the public sidewalk would be disruptive (for example, outside a kindergarten classroom that is dismissing midday).  

• You may want to have recess or PE occur in the school’s gymnasium instead of outside.  

• Staff should be instructed to double check that all doors are locked and security protocols are followed.

• Teachers who have classrooms overlooking the protest area may want to close blinds/curtains.

• If students and teachers wish to participate, you should enforce your attendance, leave, and absenteeism policies as you would with any other request for non-medical, personal reasons.  You may have thought through protocols for things like the walkouts planned after the Parkland school shooting that may be helpful to review and consider.  

• Finally, we are huge fans of allowing your social studies and civics classes to go out and observe the protest as a living, breathing lesson in what the First Amendment allows.  Although it’s obviously not as awesome as a KSB digital citizenship assembly, having students observe and be present can be useful as an educational exercise and help ensure the protest remains civil.  

 Conclusion. We know that most educators just want the COVID drama to be over so that we can focus on teaching and learning. However, for good or for ill, school districts have become lightning rods for a variety of political issues. We believe schools should prepare for these protests to address them in a lawful and thoughtful manner. If you have questions about your district’s approach as you work through the issues, you should contact one of the KSB attorneys or whichever school attorney your district regularly consults.

Conditional Teaching Certificates

On June 4, 2020, the Nebraska Department of Education issued guidance for how Educator Certification staff at the Department would work with applicants for the 2020-21 school year who had not passed or taken the content test required for their endorsements due to the COVID-19 Pandemic.  The Department issued a conditional permit with an expiration date of May 31, 2021, in two situations: 

• For new applicants who did not present a passing content test score but who had been offered a position at a Nebraska school system.

• For all other applicants who did not present a passing content test score, were offered employment in a Nebraska school system, and previously held a conditional or provisional permit because they were missing a passing content test score.

The guidance also states:  “A conditional permit becomes void after it expires, after a new certificate or permit is issued, or if it is determined that applicant does not meet the requirements for issuance of a Nebraska certificate or permit.”

We recently communicated with Clayton Waddle, the Director of Educator Certification Office of Accountability, Accreditation, & Program Approval, regarding conditional permits for the 2021-22 school year and learned two important points.  

1. The Department does not plan to extend the conditional permit expiration date of May 31, 2021 for individuals who do not provide a passing test score.  If a conditional permit does expire, a new application would need to be submitted along with passing test scores in order for the person to move forward with their regular certificate.  In the absence of a passing test score, at best the individual might be eligible for a state substitute permit. 

2. The Department will continue to provide access to the conditional permit for new (first-time) applicants who may be missing items prior to the beginning of the 2021-2022 school year as they have in the past.  

So what’s the big deal?  State law only allows school boards to enter into employment contracts with legally qualified teachers.  In order to be a “legally qualified teacher,” the individual must possess one of the certificates discussed in sections 79-806 through 79-815 or otherwise issued by the Nebraska Commissioner of Education.  If a school employs an uncertificated teacher, the Commissioner is required to notify the county treasurer to withhold all school money belonging to the district until the teacher has obtained his or her certificate or been dismissed by the board!  Further, board members can be found personally liable for all public money paid to teachers or administrators who are not qualified under sections 79-806 to 79-815!!   

Given the potentially serious consequences, it is vital that school administrators review the expiration dates of their staff’s certificates well in advance of the beginning of the 2021-22 school year to ensure a smooth beginning to the new school year.  On March 25, 2021, Mr. Waddle sent out an email to every superintendent in the state announcing that access to TEACH (The Educator Application and Certification Hub) at the district level is now available.  With access to the system, you will be able to track the application progress of anyone who has been reported as a certificated staff member in ADVISER or by others who have chosen your district on their dashboard.  At the district level, you will also be able to view much of the same information for a certificated substitute, teacher, or administrator.  As of this writing, only about one-third of the school districts in the state have registered.  We strongly encourage you to get registered and track your staff if you have not done so already.  You may register here. 

If you have any questions about conditional teaching certificates or teacher certification, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000. 

What a Long and Strange Trip It’s Been

HB 1217, the “Fairness in Women’s Sports Act,” has forced many people to become more familiar with parliamentary procedure than a group of FFA students. After initially passing both houses of the legislature, Governor Noem indicated her strong support for the bill via twitter.  However, this eagerness was short-lived as she eventually sent the bill back to the legislature with a “style and form” veto, requesting the legislature amend the bill to exclude collegiate athletics.  The legislature rejected her suggestion, and she refused to sign the bill, effectively vetoing the bill entirely. 

But wait...there’s more!  Governor Noem has issued two executive orders, purporting to satisfy the same goals as HB 1217.  The orders separate collegiate athletics from K-12 athletics, reserving more assertive language for the K-12 realm. This distinction seemingly echoes Governor Noem’s previous hesitancy for the bill to apply to collegiate athletics.   

The K-12 Executive Order states in part, “In South Dakota, only females, based on their biological sex, as reflected on their birth certificate or affidavit provided upon initial enrollment in accordance with SDCL 13-27-3.1, shall participate in any girls’ or women’s athletic event sanctioned by a public school, a school district[.]”  The order requires the SDDOE to establish a policy consistent with the order, and the DOE has already followed up with a memorandum including a very short suggested policy on the issue. 

Can Governor Noem do that?  Requiring sports participation to be consistent with sex at birth would normally be the purview of the legislature.  To enact such a requirement through executive order is unusual, to say the least.  South Dakota has fairly strict constitutional requirements for the separation of powers, and the constitutional provision cited as reasoning for the order specifies it is the legislature’s [not the governor’s] responsibility to “establish and maintain a general and uniform system of public schools[.]”  There’s little doubt opponents will bring these arguments when they seek to invalidate Governor Noem’s orders. 

Bostock and Title IX.  A common theme in the debate for HB 1217 and Governor Noem’s executive orders is the applicability of the Supreme Court’s decision last summer in Bostock v. Clayton County.  In Bostock, the Supreme Court held an employer violated Title VII of the Civil Rights Act of 1964 by firing an employee for no other reason than being transgender.  Importantly, the Court decided this case on the basis of Title VII, not Title IX. Proponents of Governor Noem’s position  argue Bostock is limited to Title VII and applies only to employees, not students.  Although the Supreme Court explicitly said its Bostock opinion was limited to Title VII cases involving employees, other courts have already applied Bostock in the Title IX context to students.  The Fourth Circuit applied Bostock in the context of bathroom access for transgender individuals in Grimm v. Gloucester Cty. Sch. Bd., holding a school’s policy of requiring bathroom usage to align with biological sex violated Title IX.  The Eleventh Circuit held similarly in Adams v. Sch. Bd.  No appellate court in the last several years has upheld board policies denying transgender students protection under Title IX and the U.S. Constitution’s Equal Protection Clause. 

What Should Schools Do Now?  And so, as they say, the battle lines have been drawn between the clear trend in the courts (and the position of the Biden administration) and Governor Noem’s executive orders., Despite litigation across the country, the Eighth Circuit, which oversees South Dakota, has not explicitly ruled on the issue.  It is possible the Eighth Circuit could disagree with its sister courts, which would almost certainly result in a review by the Supreme Court.  That process could take years, when in some cases schools will have to make decisions within hours or minutes. 

Governor Noem’s executive order is in effect now and the Department of Education has already issued its sample policy.  The orders will almost certainly be challenged in federal court, but that will be little help when these issues are being pressed by a parent (on either side) in your office. Our advice for years has been consistent: no matter what is ultimately decided, Title IX’s express wording is clear and prohibits discrimination “on the basis of sex.”  Enacting policies such as the Department of Education’s may expose schools to possible federal litigation, even if not liability.  To be clear, we know they are simply following the order.  However, in our opinion this is a school board decision and should weigh all of the legal, practical, and political considerations.  Your district should have a conversation with your school’s legal counsel regarding how best to approach this complicated and politically charged issue. 

Call Tyler, Bobby, or Karen if you have any questions!

Q&A Webinar with KSB, TGIF . . . FCRA!

When: Friday, March 19, 2021 at 9:00 AM 

Where: ZOOM (Info below)

What: (The last?!) COVID Q&A

It’s been nice that things are getting somewhat back to “normal”.  We’re loving coming to your buildings for staff inservices, digital citizenship presentations, and more!  However, we know issues are still popping up around COVID-specific questions.  This Friday, we’re going to host another in our series of COVID Q&A Webinars. We will also answer any questions you have.  We plan to cover the following topics briefly, then open things up for questions:

• New stimulus package (including CARES and FFCRA updates)

• Mask mandates, DHMs, etc.

• Title IX and LGBTQ+ Executive Order

JOIN THE ZOOM HERE!

Incentivizing Early Retirement: Legal Carrot or Illegal Stick?

Early retirement incentive programs “ERIPs” are extremely common in South Dakota and Nebraska school districts.  In both South Dakota and Nebraska, ERIPs are subject to federal law limitations, and you should be sure your programs are compliant.

Okay, cool, can we keep our current program?  It depends.  Teachers generally appreciate these programs because they provide a nice payout upon retirement while also benefiting the school.  Teachers positioned at the “top left” of the salary schedule typically have a lower salary cost than those at the “bottom right” who may be eligible.  But what happens to the employee who wants to keep teaching beyond your current eligibility limits?  Many districts have a contract provision or board policy that cuts off eligibility for early retirement incentives at a certain age (often 62).  Are these programs a stick, threatening the employee from continuing to work past a certain age?  Is it even lawful to have a maximum age cutoff?  

The answer, while unpopular, is clear.  While ERIPs with age limits may make sense to both schools and teachers, many of these programs violate federal age discrimination law.    Buckle up...

Federal courts have held that early retirement programs with a hard age cap discriminate on the basis of age in violation of the federal Age Discrimination in Employment Act.  In Jankovitz v. Des Moines Indep. Cmty. Sch. Dist., the United States Court of Appeals for the Eighth Circuit analyzed a school district’s early retirement program that limited participation to anyone under the age of 65. 421 F.3d 649 (8th Cir. 2005).  An employee satisfied the years of service requirement portion of the program, but had “aged out” because he was over 65.  Id.  The court held the program was illegal due to the fixed age cap, because it had the effect of discriminating against older individuals in favor of younger ones.  That was true even though the individuals who benefitted (those under 65) were also part of the “protected class,” which under the ADEA is anyone 40 and above.  The employee was entitled to a money judgment against the school district. 

This is not to say ALL early retirement programs are unlawful, just those using upper age limits to disqualify an employee.  Programs which use years of service as opposed to age generally are lawful, but they must be drafted carefully. Additionally, minimum ages are lawful as well, and school districts can cap the number of accepted applicants per year to ensure predictability in the budget.  You should consult your school attorney to make certain your program is lawful.  Even if your program uses appropriate criteria, there are several procedural requirements under the law that schools often forget, such as requiring eligible employees to have at least 45 days to consider the early retirement incentive offer once it is made.

We understand this information may be surprising, considering the popularity of these programs.  However, the Jankovitz case was decided by the 8th Circuit, which includes Nebraska and South Dakota.  Although it was an Iowa school that got sued in that case, the case governs programs established in South Dakota or Nebraska.  There are ways to draft your ERIPs to ensure compliance with federal law while still accomplishing the same goals as existing programs.  

If your board has included the ERIP in policy, you may be able to make adjustments without the approval of the teachers union.  If you have negotiated ERIPs within your negotiated agreement, you may have to negotiate changes to the program with the local union, even if the changes are based on efforts to comply with the limitations that exist by law, including the Jankovitz case.  If you have included the ERIP in your negotiated agreement, you should prepare to make adjustments to it through the negotiations process.  There are ways to draft your negotiated agreements to ensure compliance with federal and state law while still accomplishing your goals within your existing programs.

One additional note about ERIPs that Nebraska schools should be mindful of: your ability to levy for ERIPs outside the board’s regular levy authority may have been reduced or even eliminated based on changes made in 2017. If you haven't done an assessment of your ERIP since then, you may want to consider doing that.

You should consult with your school district attorney or feel free to reach out to Karen, Steve, Bobby, Coady, Jordan or Tyler with any questions. 

February 8th Is Almost Here!

Have you settled for the 2021-22 contract year but still need to approve the negotiated agreement at your upcoming meeting?  Are you still negotiating?  If so, this post is for you!  For everyone else, feel free to go back to looking at prop bets for the super bowl (or keep reading for a quick refresher on negotiations timelines during crunch time).

The Industrial Relations Act requires the board and teachers association to submit to mandatory mediation or factfinding if the board and association have not reached agreement by February 8th, unless the parties mutually agree in writing to forgo them.  Whether you are planning to approve your agreement next Monday (February 8, 2021) or still negotiating, this post will walk you through the deadlines you need to keep in mind. 

We’re Settled and Approving the Agreement Next Week.  Great! Based on the timing of February 2021 board meetings, you’ll likely squeak in just under the radar.  As long as both parties have approved your agreement by February 8, 2021, you should be just fine.  However, if your board meeting is after February 8th, if the teachers’ association will approve the agreement after February 8th, or if you’re still negotiating, keep reading.

Failure to Conclude Negotiations by February 8th.  If the parties have not reached agreement by February 8th, they must engage in factfinding and mediation with a “resolution officer” if one of them files a petition with the Commission of Industrial Relations requesting it.  However, they are not required to engage in factfinding if both agree in writing to forego it.  We recommend that you consult with your school district’s attorney before February 8th if it appears that you will not be able to settle negotiations or will have to approve your agreement after that date, even if you have agreed.  

Fact Finding Process.  If you are considering submitting to the factfinding/resolution process, it can be a complex endeavor compressed into a very short period of time. The “resolution officer” will be in charge of the process.  Among other things, he or she will:

1. Determine whether the issues are ready for adjudication;

2. Identify the terms and conditions of employment that remain  in dispute and negotiated in good faith but not resolved;

3. Choose the offer that he/she believes was the most reasonable final offer on each issue in dispute; and

4. Issue a decision and recommendations by March 25th.

Key in this process is making sure you understand which issues are still in dispute and making a lawful and prudent reasonable final offer.

Time Flies.  Time flies, especially from February 8th through March 25th.  The board and association have slightly more than six weeks to assemble their records and data, perform a comparability study (this is not required, but it is advisable), present the information and arguments, and give the resolution officer enough time to review it and issue a decision and recommendations.

Conclude Fact Finding by March 25th.  The resolution officer must conclude the fact finding process and issue a decision and recommendations by March 25th or within 25 days after the certification of state aid for the contract year in question, whichever occurs later.  With the long Unicameral session, that could be much later this year, into mid-summer.  If the parties have not reached agreement on or before the deadline for fact finding to conclude, either one may file a petition with the Commission within 14 days asking it to resolve the industrial dispute.

Commission of Industrial Relations Decision.  The Commission will limit its consideration to those issues that the resolution officer determined that the parties negotiated in good faith but could not agree upon. The Commission will decide the case based on its traditional criteria of comparability and prevalence, not on the resolution officer’s standard of the “most reasonable final offer.”  It must issue its decision for the contract year by September 15th.  

If you are a KSB client and you believe that you will not reach an agreement, please let us know immediately.  If you have any questions about the February 8th deadline or any negotiation issue, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000.

Biden’s Been a Busy Boy!

Whether you love, hate, or are indifferent to President Joseph Robinette Biden Jr. and his administration, we can all agree on one thing:  the president has been a busy man since taking office.  On his first day in office alone, President Biden signed 17 executive orders, memorandums, and proclamations.  Not surprisingly, many of these actions were taken to directly, intentionally, and immediately reverse many of former President Donald Trump’s policies.  Let’s take a look at some of our 46th president’s actions and what they might mean for schools.

Gender Identity and Sexual Orientation

In Bostock v. Clayton County, 590 U.S. ___ (2020), the United States Supreme Court held that Title VII’s prohibition on discrimination “because of . . . sex” covers discrimination on the basis of gender identity and sexual orientation.  On January 20, 2021, President Biden issued an executive order requiring all federal agencies to comply with Bostock.  While Bostock was a Title VII employment case and the SCOTUS made clear in its opinion that it was offering no opinion on sex-segregated bathrooms and locker rooms under Title IX, the Biden administration made its position clear in the executive order:

Under Bostock’s reasoning, laws that prohibit sex discrimination — including Title IX of the Education Amendments of 1972, as amended (20 U.S.C. 1681 et seq.) . . . — prohibit discrimination on the basis of gender identity or sexual orientation, so long as the laws do not contain sufficient indications to the contrary.

This position is directly contrary to the one espoused by the Trump administration.  In fact, President Trump’s Department of Education released a guidance document saying the opposite of Biden’s EO the week before President Trump left office.  Don’t be surprised if there is a push for regulatory or other change in the near future that would require schools to ensure that there is no discrimination on the basis of gender identity or sexual orientation in the performance of contracts or activities that are funded in whole or in part by federal funds.  There may also be major changes in the federal government’s approach to this issue, possibly including guidance or regulations that will require schools to allow students to use bathrooms and locker rooms consistent with their gender identity.  

Race and Sex Stereotyping

On September 22, 2020, then-President Trump issued an Executive Order on Combating Race and Sex Stereotyping that prohibited government contractors and some federal grant recipients from using any workplace training “that inculcates in its employees any form of race or sex-stereotyping or any form of race or sex scapegoating.”  On his first day in office President Biden issued his own executive order that rescinded Trump’s executive order.  Generally, Biden’s executive order requires federal “executive departments and agencies [to] recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.”  The executive order also requires federal agencies to review and provide a report within 200 days reflecting findings on “[t]he operational status and level of institutional resources available to offices or divisions within the agency that are responsible for advancing civil rights or whose mandates specifically include serving underrepresented or disadvantaged communities.”  This almost certainly will include the U.S. Department of Education reviewing its policies and activities related to equal opportunity and civil rights to see if they “create or exacerbate barriers to full and equal participation by all eligible individuals.”  In other words, don’t be surprised if there are more and more invasive investigations and reviews from the Office for Civil Rights in response to complaints.  There may also be a renewed focus on disparities in student discipline based on race and equitable access to education, school resources, and school funding.   

Mask Mandate

President Biden approved yet another executive order on January 20, 2021 requiring all “on-duty or on-site Federal employees, on-site Federal contractors, and other individuals in Federal buildings and on Federal lands [to] wear masks, maintain physical distance, and adhere to other public health measures, as provided in CDC guidelines.”  The executive order also directed HHS and the CDC to work with local (i.e. school district) officials “regarding mask-wearing and other public health measures, with the goal of maximizing public compliance with, and addressing any obstacles to, mask-wearing and other public health best practices identified by CDC.”  

Although this is not a directive that applies directly to public schools, we expect forthcoming CDC guidance on school operations to include stronger wording about masking. 

Regulatory Freeze

On January 20, 2021, President Biden’s Chief of Staff issued a memorandum to the heads of all executive departments and agencies to place any pending regulations on hold until a department or agency head appointed or designated by the President after noon on January 20, 2021, reviews and approves the rule.  This won’t have any impact on the new Title IX regulations (that Biden and his administration strongly oppose) because they have already gone into effect.  However, it will put on hold any other school regulations in the pipeline that would have impacted things such as special education and others.  

NLRB

President Biden fired the Trump-appointed general counsel for the National Labor Relations Board after he refused to resign ten months before the expiration of his term.  The general counsel had a reputation for supporting pro-employer stances.  President Biden also appointed the NLRB’s sole Democrat to serve as the board’s chair.  He will fill a current vacancy with a Democrat, but the Republicans will hold a 3-2 edge on the board until at least December 16, 2022.  Nebraska schools are governed by the Commission of Industrial Relations in labor matters, so any NLRB moves will not have a direct impact on you.  However, the CIR does look to NLRB decisions on occasion, such as when it encounters an issue it has not considered previously.  This means that a more employee-friendly NLRB could have some impact on Nebraska schools.

More Executive Actions to Come

On January 22, 2021, the Biden administration issued a Fact Sheet indicating that more executive action is on the way.  These efforts include:

• Asking the U.S. Department of Agriculture to consider expanding and extending federal nutrition assistance programs.  

• Restoring collective bargaining power and worker protections by revoking Trump Executive Orders and directing federal agencies to bargain over permissible, non-mandatory subjects of bargaining when contracts are up for negotiation so that workers have a greater voice in their working conditions.      

• Develop recommendations to pay more federal employees and contractors at least $15 per hour and provide emergency paid leave to workers.

While some of these efforts may not immediately or directly affect school districts, they may gain momentum and influence state legislators to attempt to follow suit.  

COVID-19 Toolkit

The CDC has issued a COVID-19 Vaccine Communication Toolkit for Essential Workers, including people working in education.  The purpose of the toolkit is to “educate employees about COVID-19 vaccines, raise awareness about the benefits of vaccination, and address common questions and concerns.”  The toolkit includes an introductory letter, key messages, FAQs (including one specifically for employers), a slide deck, fact sheets, a newsletter, a letter to your employees, posters and flyers, and  social media messages and toolkit.  The CDC intends to add more materials to the toolkit and encourages you to check back frequently for updates.

If you have any questions about any of these topics or any future actions by the Biden Administration, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000.

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

[Note: we wrote a similar, but much funnier post on this topic last year.  Given the seriousness of the political tensions our country faces, we thought a more somber post was in order this time around.]

On January 20, 2021, Joe Biden will be sworn in as the 46th president of the United States.  Some education professionals will think this is a cause for celebration while others will experience deep concern.  In our country -- like our profession -- people of good will can and inevitably will disagree about partisan politics.  However, when you are acting in your role as a school employee or representative, you must scrupulously avoid using your position as a platform for your politics.    

Professional Ethics Governing Educators 

In both Nebraska and South Dakota, education professionals are bound by codes of ethics which prevent public schools from being used as platforms for political causes. 

Nebraska’s Rule 27

In Nebraska, certificated employees are governed by Rule 27 of the Nebraska Department of Education.  Teachers and administrators who violate Rule 27 risk losing their teaching certificate, among other possible discipline.  Several of the standards in Rule 27 prevent a staff member engaging in political or partisan activity at school:

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

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

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

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

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

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

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

South Dakota’s Code of Professional Ethics

In South Dakota, the teachers’ code of professional ethics is found in article 24:08:03:02 of the South Dakota Code.  That law requires all teachers and education service providers to: 

• Take precautions to distinguish between their personal views and those of the local school district or governing body (24:08:03:02 (1));

• Not interfere with a colleague's exercise of political and citizenship rights and responsibilities (24:08:03:02 (3)); and  

• Not exploit the local school district or governing body to promote political candidates or partisan political activities. (24:08:03:02 (5)).

Other States 

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

Other Laws Limiting Teachers From Engaging in Political Activity in the Classroom 

Nebraska’s Political Accountability and Disclosure Act

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

South Dakota’s Attorney General Decision.

In South Dakota, the state attorney general has indicated that individuals who engage in political advocacy while they are working for schools or other government agencies also run afoul of the law.  In Official Opinion No. 88-28, Expenditure of Public Funds on Election Issues (June 29, 1988), the South Dakota Attorney General warned that public employees may engage in political advocacy “strictly in their individual capacities as private citizens.”  The opinion continues that public employees engaging in political advocacy at work “raises serious constitutional questions.”

Other States

Again, Nebraska and South Dakota are not alone in having state laws or administrative opinions that limit public employees’ ability to use public resources in support of their personal political views.  Educators in other states should familiarize themselves with their state’s laws on political accountability and the use of public time and resources.  

Wait -- I have First Amendment Rights, Don’t I? 

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

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

Dodge v. Evergreen Sch. Dist. No. 114, 2020 U.S. Dist. LEXIS 135581(W.D. Wash. 2020) involved a teacher who was attending an inservice  when no students were present.  While walking from his car to the building, the teacher wore his MAGA hat.  He took it off when he got inside the building. After the training, the teacher’s principal expressed concerns about his MAGA hat.  The next day, the teacher again wore his MAGA hat while walking to and from his vehicle at an off-campus training.  When the principal next saw the teacher, she approached the teacher and exclaimed: "OK, what is the f***ing deal with you and your hat!" The principal then berated the teacher for 15 minutes, calling him a "racist," "bigot," "homophobe," "liar," and "hateful person." The principal told the teacher to get union representation because he "would need it" next time they spoke.

The teacher sued, claiming that the principal had violated his first amendment rights to free speech.  The court held that the principal’s isolated tirade did not constitute a "campaign of harassment," but that her alleged threat encouraging the teacher to seek union representation suggested future discipline if he continued wearing the MAGA hat.  

The court included this caution: "As a final note, these are trying times and [the teacher]'s allegations highlight the importance of courtesy between those who disagree politically. The Court urges the parties and anyone else reading this to be respectful in all things."

Note that the teacher in this case was not wearing his MAGA hat in the presence of students.  As we’ve noted above, if he had done so, he may have exposed himself to legal liability separate and apart from his confrontation with his principal. 

A Two-Part Test

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

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

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

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

Conclusion

We know that political feelings are running high, fraying nerves that are already rubbed raw by COVID.  If you need to vent, by all means, open your window and shout “I’m mad as hell and I’m not going to take it anymore.” If you want to celebrate, crank the tunes, pop the champagne and dance around your living room in your underwear.  But the place to express your political beliefs is your private life -- not your classroom, not your school-affiliated Twitter account and not even in the teachers’ lounge.  If your school district has questions about what is acceptable political speech in a school context, contact Karen, Steve, Coady, Jordan or Tyler.  (Don’t bother Bobby for a few days.  He is busy celebrating the birth of the newest KSB kid, Tylie Kenna.)

A New Year for New Boards

Many school administrators preparing for their January board meetings have asked us about board actions required or typically taken at the first meeting of the year, so we have prepared a short list of frequently-asked questions for your reference.

What if I Don’t Have Enough Old Board Members to Constitute a Quorum to Open the January Board Meeting?

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

May the Old Board Members Act on the Board’s Old Business and the New Members Act on Its New Business?

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

Who Runs the Meeting if the Former Board President is No Longer a Board Member?

The vice-president may run the meeting in the absence of a current president.  Otherwise, the board may vote to appoint someone to act as an interim “chairman” until the new board president is elected.

Tell Us About This Oath of Office

Section 11-101 of the Nebraska statutes contains an oath of office that “state, district, county, precinct, township, municipal, and especially appointed officers” must take.  However, in Frans v. Young, 30 Neb. 360, 46 N.W. 528 (1890), the Nebraska Supreme Court held that boards of education are not required to take the oath prescribed by this section, because the term “district” applies only to judicial districts, and the term “municipal” to villages, towns, and cities.  Courts have held that denying a public official the right to take an oath might well violate the official’s First Amendment rights.  On the other hand, there is a growing consensus among courts that requiring an oath like the one from Nebraska’s statutes is probably unconstitutional.  Bottom line - if board members desire to take the oath, let them.  If board members object to taking the oath, don’t force them to do so.

Election of Officers

Section 79-564 requires all Class III school districts to annually elect a president, vice-president, and secretary.  Section 79-586 also requires the board to have a treasurer.  While not required, these elections have traditionally occurred at the January meeting.  The secretary does not need to be a member of the board.  If the secretary is a member of the board, an assistant secretary may be named and his or her duties and compensation set by the board.  The general duties and obligations of the president, vice president, secretary, and treasurer can be found scattered throughout sections 79-564 to 79-597.

Election of Officers by Secret Ballot

Unlike roll call votes taken by the board, section 84-1413 allows you to elect officers by secret ballot as long as the “total number of votes for each candidate” is recorded in the minutes.  A simple motion and second then allows the board to cast secret ballots.  The number of votes for each candidate must be recorded in the minutes.

What Do We Do About Ties?
A related question for the January meeting each year is how to deal with ties for officer elections.  Election of officers is required by statute, but there is no statutory process for breaking the tie.  We encourage you to review your policies to see if they include a method to break any officer election ties.  Boards that have adopted KSB’s Policy 2002 likely have approved one of the methods for breaking ties so that you do not have dozens of failed motions or tie votes.  

The Committee on American Civics

In 2019, the Unicameral changed the name of the Committee on Americanism to the Committee on American Civics.  Boards used to appoint this committee at the beginning of each school year.  You now must appoint three board members to this committee at the beginning of each calendar year.  There is a whole laundry list of requirements for this committee, including holding no fewer than two public meetings annually.  The board must also receive public testimony at one of those meetings.  Remember, the legislature took a no nonsense approach with this requirement, stating:  “Every school board, the State Board of Education, and the superintendent of each school district in the state shall be held directly responsible in the order named for carrying out this section.  Neglect thereof by any employee may be considered a cause for dismissal.”  You can view all of the committee’s duties and responsibilities here in section 79-724.  The board may, but is not required, to appoint members of any other committees at the January meeting.

Designating a Bank

Section 77-2350 requires boards of education to designate the district’s bank, capital stock financial institution, or qualifying mutual financial institution “from time to time . . . by formal resolution duly recorded.”  The designated bank or financial institution must be situated within the district’s boundaries.  If no such entity is located within the district’s boundaries, the board may designate any such institution within the state.  Some boards make this designation at the first meeting of the calendar year, while others designate a financial institution in policy.  

Designating a Law Firm

Many boards designate the law firms(s) that they will work with during the next calendar year.  While such action is not technically required, it does clarify a school’s authority to work with legal counsel under section 79-513 that states:  “The school board or board of education of any school district in this state may pay from its school funds for the legal services of an attorney employed by the board when it deems legal counsel necessary or advisable.” 

Electronic Meetings

As we told you previously, Executive Order 20-36 allows school boards to hold electronic meetings through January 31, 2021 “so long as there is made available at such meeting access to members of the public and to members of the media.”  Remember that ALL other provisions of Nebraska’s Open Meetings Act continue to apply.  See our December 2, 2020 blog post for more details!

We hope this information will help you prepare for your January meeting.  If you have any questions about your January meeting, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000.