Delving into the Weeds: What South Dakota Schools Should Know about the New Medical Marijuana Rules

Bad puns aside, schools must now confront the reality that South Dakota law allows medical marijuana in schools, and schools need to have a plan for addressing the inevitable issues that are going to arise. 

The Department of Education’s new rules for medical marijuana in schools cleared their last hurdle July 19 with the legislative committee giving its stamp of approval.  Some highlights: 

• The rules go into effect August 8, 2021.

• Schools may still have a bit of a reprieve at the beginning of the school year, as the Department of Health will not be handing out cards to qualifying individuals until October or November.  (However, your IEP and Section 504 teams will want to be ready before that, and non-verified students who bring cards in should be ringing your child find bells--more on that below.)  

• Students may still be considered “cardholders” with valid cards from other states if they are new to the state or are tribal members.  

• The new rules do not force school personnel to administer marijuana to students.  

• All medical marijuana must be in a non-smokable form.  

Now what?  Schools need to decide how much control they wish to assert over the administration of medical marijuana in their district.  Under the rules, schools can choose to:

1. Administer medical marijuana themselves; or

2. Allow for designated caregivers to administer medical marijuana to a student rather than have staff deal with it, but the caregiver must be allowed to come onto school property to do so.  

Regardless of which approach you choose to take your district, we recommend that Boards enact a policy clearly laying out the District’s approach. 

Are you finding yourself saying, “Isn’t marijuana still illegal under federal law?  I don’t want to deal with it or lose my license.”  The regulations consider this and allow for a district to refuse to comply with the rules entirely if it loses federal funding or if it can “reasonably demonstrate that it will lose” federal funding as a result of complying with the rules.  Marijuana is still illegal at the federal level, but no schools in other states with legalized medical marijuana have lost funding due to allowing medical marijuana on school grounds.  How strict the South Dakota Department of Education will be with this requirement remains to be seen.  We also hope the SDDOE will factor in these rules when dealing with professionalism standards related to licensing of teachers and administrators and the interplay with state and federal criminal laws.

Speaking of federal law, how do the IDEA and Section 504 mesh with these new rules?  If a school gets a request from a student on an IEP or 504 plan to have district personnel administer marijuana, but district policy does not allow for that, what should the district do? The rules attempt to address this by explicitly stating those laws cannot force a school to store or administer medical marijuana.  The protection this rule would give a school in federal court may be limited, as this has been an issue in other jurisdictions, with courts coming out on both sides of the issue.  However, it is clear that such a request triggers the team’s obligation to consider it, issue prior written notice, and possibly include any services or related services related to it.  If a non-verified student brings in a request, you should get your special education and Section 504 staff involved to determine if the underlying medical condition you may or may not have been aware of triggers your obligation to refer the child to the student assistance team and/or begin the evaluation process.

You should contact your school attorney to begin the process of adopting a policy regarding medical marijuana or feel free to reach out to Karen, Steve, Bobby, Coady, Jordan or Tyler with any questions at (402) 804-8000 or ksb@ksbschoollaw.com.

Q&A with KSB, Summer Fun Edition!

When: Thursday, July 8, 2021 at 10:00 AM CDT

Where: ZOOM (Click this link to join!). Note--we will also record the Q&A and make it available for those who can't join on Thursday.

Who: This is designed for school administrators, including principals and special education staff, and any board members interested in these issues. Please do us a favor and share this email/post or the Zoom link with new administrators to your districts who may not have their new email addresses subscribed to our blog posts and updates. Note, you can subscribe on behalf of others by entering their email addresses or forward them the following link where they can input their email address on the right hand side of the page: https://www.ksbschoollaw.com/blog

What: We’re going to cover several topics to get you up to date on legal developments and then answer your questions as best we can.  Some of the topics we plan to cover:

• NDE Guidance Memo re lowering the age of transition services under the IDEA and Rule 51 (yes, invite your special education staff to attend!)

• ESSER III in all its glory--practical advice for complying with the requirements of the law and regulations, forming compliant Continuity and ARP ESSER plans, getting stakeholder input, Davis-Bacon and federal construction and procurement requirements, etc.

• BL v. Mahanoy, and what (if anything) changed when it comes to disciplining students for off-campus misconduct

• Your questions!

Off-Campus Social Media Use: the times, they are/may/could/possibly be a changin’!

One of the ironies of education law is that a 50-year-old case about the Vietnam War dictates how school administrators can respond to students’ use of TikTok, Snapchat and Instagram.  Last week, the U.S. Supreme Court reaffirmed that school administrators must prove that student misuse of social media causes or is likely to cause a material and substantial disruption at school before punishing students, even if the punishment is only a limitation of extracurricular activities.  In Mahanoy Area School District v. B.L., 594 U.S. ___ (2021), a student sent profanity-laced messages on Snapchat about the school and her cheer team when the student was off school grounds on the weekend.  The Court ruled that Tinker applies to off-campus speech, and advised lower courts to hold schools accountable to prove the disruption they allege student speech may cause.  The opinion flatly says judges should be “skeptical” of school discipline imposed for off-campus speech.  In addition, the school can likely regulate off-campus speech when related to bullying, harassment, threats, participation in online activities, and breaches of school security, among other situations.

 The school violated the student’s right to free speech.

After she failed to make the varsity cheerleading squad, B.L. posted two messages on Snapchat expressing her frustration.  These off-campus messages included a picture of B.L. raising her middle finger and some F-bombs against the school and cheer squad.  Some of B.L.’s “friends” took a screenshot of the messages and spread it.  (Spoiler alert, once online, things never truly disappear)  When the cheer sponsor learned of the posts, she suspended B.L. from the cheer squad for the upcoming year.  After unsuccessfully seeking to reverse that punishment, the student and her parents sued in federal court.  The Supreme Court reaffirmed that the student’s First Amendment rights were violated by the school, but the Court corrected the Third Circuit's application of Tinker.  

The student’s off-campus criticism of the school was protected.  While the student used vulgarity and risked transmitting her messages to the school by posting them online, her speech was protected under the First Amendment because of when, where, and how she spoke.  She criticized the team and school outside of school hours from outside the school.  She did not identify the school in her messages or target any member of the school with vulgar or abusive language.  The speech was transmitted from a personal cell phone to her private circle of Snapchat friends.  

It is possible that the Court would have reached a different conclusion if the student had used the school’s computer, targeted the school or its members, or posted outside a private circle.  The Court’s decision was narrowly applied to the facts in B.L.

Additionally, the evidence showed that the student’s speech never disrupted the school except for 5 to 10 minutes of an Algebra class (taught by the cheer sponsor), and a few “upset” students.  Despite the school's concern for team morale, there was no evidence that the team morale was affected by the speech.  Thus, the school could not discipline the student for her off-campus speech because the speech was considered criticism and never substantially interfered with or disrupted the school’s operations.

The school can regulate off-campus speech under certain circumstances.

The Supreme Court specifically held that Tinker allows schools to regulate off-campus speech under some circumstances.  However, the Court left “for future cases to decide where, when, and how.”  The Court only went as far as stating that the school’s evidence of disruption was insufficient in this case. 

The Court noted that the school’s need to regulate students’ off-campus speech will usually be diminished by several factors.  First, most off-campus speech will fall within the parental, rather than the school-related, responsibility.  (We’ll give school administrators a second to laugh at the Court’s quaint notion of how involved most parents are in their students’ online lives……)  Second, if schools were allowed to regulate all off-campus speech, “doing so may mean the student cannot engage in that kind of speech at all.”  Third, the school itself has an interest in protecting a student’s unpopular expression because public schools are the “nurseries of democracy.”  Yeah, you read that correctly...you should be delighted that students are F-bombing their teams and coaches online when things don’t go well because, you know, they’re probably thinking about the limits of their freedoms when ranting on social media…  (Pauses again for laughter.)

In other words, administrators can likely discipline off-campus speech that satisfies the “material and substantial disruption standard,” but they face a heavy burden to justify the discipline.

Lastly, the Court stated that some circumstances may give schools an increased interest in regulating off-campus speech.  The circumstances include “serious or severe bullying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.”

Conclusion

You may have heard us talk about the potential for this case to substantially change the test that schools must meet when curtailing student speech.  This opinion doesn’t necessarily do that.  It still applied Tinker to the student’s off-campus speech.  Schools can still impose consequences for off-campus speech, but only when the speech causes a material and substantial disruption.  What we learned in this case is that ten minutes of discussion in a single algebra class and a few upset students was not enough.  

The Court did try to whittle away at that authority by (possibly?) increasing the burden of showing disruption.  When a school wants to regulate off-campus speech, it has a heavier burden to show that such regulation does not violate the student’s freedom of speech compared to on-campus speech.  As pointed out by Justice Alito, “If today’s decision teaches any lesson, it must be that the regulation of many types of off-premises student speech raises serious First Amendment concerns, and school officials should proceed cautiously before venturing into this territory.”  However, schools are likely able to discipline students for off-campus speech if such speech satisfies Tinker (the “material and substantial disruption standard”), or relates to bullying; harassment; threats; the failure to follow rules concerning lessons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.

If you have any questions about how this decision affects your operations, your policies, your handbooks, or a specific situation, please reach out to your school lawyer or contact Karen, Steve, Bobby, Coady, Jordan, or Tyler at (402) 804-8000 or ksb@ksbschoollaw.com

First Shot Across the Bow? New Guidance on Title IX from Biden Administration

We knew it was coming, and now it is here.  President Biden’s Department of Education has released official guidance regarding enforcement of Title IX.  In a reversal from one of the last actions of the Department under President Trump, the Department will now interpret Title IX as prohibiting discrimination on the basis of sexual orientation or gender identity. 

Restock your Bostock Knowledge

The guidance relies heavily on last summer’s Supreme Court decision Bostock v. Clayton County, 140 S. Ct. 1731, 590 U.S. ___ (2020).  Bostock held that Title VII prohibits employers from taking adverse action against an employee because of the employee’s sexual orientation or gender identity.  As the Court explained, basing an adverse employment decision on an employee’s sexual orientation or gender identity necessarily requires the employer to reference that employee’s sex, which Title VII prohibits.  The Department is now applying that same logic to Title IX.  

While the Department relies most on Bostock, it incorporates some other familiar names as well, including Grimm v. Gloucester Cnty. Sch. Bd., 972 F.3d 586 (4th Cir. 2020) and Adams v. Sch. Bd. of St. Johns Cnty., 968 F.3d 1286, 1305 (11th Cir. 2020), both cases where transgender students prevailed over school districts. 

Targets Acquired

The Department goes into some detail on how this is going to change enforcement, explicitly referring to individuals who are:  

excluded from, denied equal access to, or subjected to sex stereotyping in academic or extracurricular opportunities and other education programs or activities, denied the benefits of such programs or activities, or otherwise treated differently because of their sexual orientation or gender identity. 

The guidance remains silent on how this interpretation will apply in various circumstances.  For example, Title IX specifically allows school districts to “provide separate toilet, locker room, and shower facilities on the basis of sex,” (so long as the facilities provided for students of one sex are comparable to those facilities provided to students of the other sex).  34 C.F.R. § 106.33.  The new guidance does not explain how those certain sex-segregated facilities will be affected by the Department’s interpretation.  We have a sense of the side of the scale on which OCR may place its thumb in certain circumstances, but this guidance leaves important policy questions unaddressed.  As always, the devil will be in the details.

If your school has any questions about the guidance or how your school’s operations may be affected, please don’t hesitate to contact your school’s attorney, or call Karen, Steve, Bobby, Coady, Jordan, or Tyler at (402) 804-8000. 

After some hustlin’, fussin’, and cussin’...20-21 is in the books! A few things from KSB to keep on your radar this summer...

You did it!  First things first, a heartfelt congratulations and thanks to all board members, administrators, and staff members for navigating what we hope to be the most unique school year any of us will ever experience.  It has sincerely been our pleasure to work in partnership with you, and we remain in awe of what you accomplish with more obligations and relatively less funding each passing year.  

As you look forward to taking some well-earned downtime, we have a few things we want to put on your radar as you make plans.

Policy Updates and Update Webinar.  The weather has finally warmed up, Phil just won a major at 50, and we’re all inspired to play more golf work on policies?  Yeah, you know they’re coming every year around this time: policy updates will be out next week!  We don’t anticipate too heavy of a load, but there will be some key updates related to things like federal purchasing, construction, and others.  

We plan to send out policy updates to subscribers on June 8.  KSB will also be hosting and recording our policy update webinar at 10:00 AM Central on June 10th.  If you are a policy service subscriber, you’ll get all of the updates and a link for the webinar next week.  If you’re interested in receiving KSB’s policy updates, give one of us a call.

Supreme Court and B.L. v. Mahanoy.  On April 28th, the U.S. Supreme Court heard oral arguments in a case that could change the legal landscape for schools.  The key question in the case is the extent to which schools can regulate off-campus speech students make online (in this case, a series of profanity-laced Snapchat rants related to a cheer team).  The Court could more narrowly decide the case and avoid sweeping changes to the rules we all know from the Tinker case (the “material and substantial disruption standard”), or it could fundamentally redefine this area of the law.  Decisions for the current term are typically issued by the end of June, and we expect the B.L. decision to run right up to the deadline.  If the Court goes big with the decision, it could require multiple additional policy and handbook updates immediately.  We know how much you all LOVE multiple rounds of policy updates, so keep an eye on this case!

Biden Admin. Rule/Regulation/Guidance Review.  In addition to the Supreme Court, we’re also waiting on some impending summer updates from the Biden Administration Office for Civil Rights.  On March 8, President Biden signed an executive order requiring the agency to review existing regulations and guidance, including under Title IX, within 100 days.  Last week, OCR announced it will hold public hearings from June 7 to June 11:  “During the hearing, OCR seeks input...on what additional changes to the Title IX regulations and any related agency actions may be necessary to fulfill  President Biden's Executive Orders.”  In addition to another set of updates to the formal grievance process regulations implemented last August, we anticipate they’ll ask for input on other hot-button issues like gender identity, sexual orientation, and transgender individuals participating in sports and activities.  

Just what you wanted to hear...more Title IX regulatory changes and guidance likely to come soon!

ARP ESSER Funds and Plans.  A few weeks back, the U.S. Dept. of Education released some proposed rules governing the use of the newest round of federal stimulus funds dedicated to schools and state departments of education in the American Recovery Plan Act (commonly referred to as “ESSER III funds”).  Karen and Bobby presented on the allowable ESSER III expenditures and the requirements of the USDOE’s proposed rules at NASBO (slides here).  

In summary, before state departments of education and schools can access and commit remaining ESSER III funds, they must solicit stakeholder input and form two written plans: a “Safe Return to In-Person Instruction Plan” and “ARP ESSER Plan.”  The USDOE put out a “template” for what state education departments will need to submit for their plan, which you can view here.  We anticipate USDOE and state departments will have guidance and/or templates for local schools to use when creating their plans.  Both plans must be published on the entity’s website, and we’ll be providing clients with additional guidance on soliciting stakeholder input and drafting your plans as details and expectations become clearer.  The USDOE also recently published an FAQ guidance document on ESSER programs.

Here’s the bottom line: before you start spending ESSER III money, make sure you understand the limitations and requirements--if you’re not sure, call your attorney. In addition to the lessons learned from ESSER II (like Davis-Bacon and the federal procurement rules impacting your plans), there will likely be some new, additional requirements to comply with this summer/fall before committing ESSER III funds.

New Administrator Training.  Many of you have already responded to our survey seeking input about how KSB can support the large cadre of new administrators set to step in for the 2021-22 school year.  For those of you who (wisely) took some time away at the end of May, would you please respond to our short survey about how we can help first-time superintendents and principals next year? 

Whew!  That’s it for now.  If you have questions about any of these issues; are thinking about summer/fall presentations and trainings (we’re stoked schools are scheduling us for digital citizenship again!); or any others, please reach out to one of us!

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. 

FFCRA, Taxes, 941s, and More!

Administrators, you know we love you, but if the title hasn't already signaled you to do this please do this now: hit “forward” and send this to your business officials….  Ah, there we go.  Now we’re talking to the rule followers!  

We’ve heard your questions!  Are schools entitled to tax breaks for providing FFCRA leave?  Do we get relief from the employer’s portion of social security taxes?  Does this change how we file form 941?  Was FFCRA actually extended when President Trump (finally) signed the new stimulus bill, or not?! 

We can help with the last question: FFCRA was sort of extended, on a voluntary basis.  We’ll cover more of that below.  But for all these tax questions, you know our standard response: “Call your auditor/accountant!”  There are two reasons for that.  First, we aren’t licensed to give you tax advice.  Second, when it comes to IRS codes and taxation, we have to call in a ringer.  

FFCRA, SS Tax, and Form 941. KSB reached out to  Rich Lohr of the accounting firm Porter & Company in  Sioux City, Iowa.  Rich and his colleagues provided the following summary which hits on the questions we’ve heard most from business officials regarding FFCRA leave and tax issues:

Can governmental employers who provide paid leave wages receive tax relief under the Family First Coronavirus Response Act (FFCRA)?

Political subdivisions, like school districts, are not defined as eligible employers under FFCRA. See Internal Revenue Service, Special Issues for Employers: Taxation and Deductibility of Tax Credits (Updated November 27, 2020). Thus, although school districts are required to provide sick and family leave wages, they are not entitled to receive tax credits for providing paid leave wages, or for health care expenses allocable to such wages. Id. Nor are they entitled to credits for employee retention. Id.

However, sick leave and family leave wages paid under FFCRA are excluded from the definition of wages under section 3111(a) of the Internal Revenue Code of 1986. Families First Coronavirus Response Act, Pub. L. No. 116-127 § 7005(a), 134 Stat. 178 (2020).

School districts are therefore not required to pay the employer’s 6.2% social security tax on sick and family leave wages. See I.R.C. § 3111(a) (2018). This is the only “break” school districts are provided under FFCRA. School districts must continue to withhold the employee portion of the social security tax. Medicare taxes are not affected by this, so continue to withhold both the employer and employee share of this tax.

So, when filling out Form 941, enter your Qualified sick leave wages on Line 5a(i) in Column 1, and your Qualified family leave wages on Line 5a(ii) in column 1. The reduced multiplier of 6.2% (instead of the normal 12.4%) on these lines is how the credit is provided. Remember, that 6.2% is the amount that is still withheld from the employee’s pay.

IRS guidance states that eligible employers may also request an advance payment by submitting Form 7200 – “Advance Payment of Employer Credits Due to COVID-19”. Id. Although entitled to request an advance payment, we would encourage employers to first reduce employment tax deposits instead of filing for an advance payment.

If necessary, you can request the amount of the credit that exceeds your reduced deposits by filing Form 7200, or wait to get a refund when you claim the credits on your employment tax return (Form 941).

Also, since government employers are not Eligible Employers, they are not entitled to receive tax credits for any health care expenses allocable to paid leave they provide under the FFCRA. Special Issues for Employers: Taxation and Deductibility of Tax Credits (Updated November 27, 2020). 

If you have further questions or need assistance you can contact Rich Lohr, Porter & Company, PC, Certified Public Accountants, 4111 Floyd Blvd, Sioux City, IA 51108 (712) 239-0536.

shutterSo, there you have it, straight from the horse's mouth fingertips of someone much smarter about this stuff than us.  Of course, if you have additional questions you should direct those to Rich if you work with him or your own auditor/accountant that you rely on for tax advice for your school or ESU.  Major thanks to Rich and his colleagues for the input here!

So, is FFCRA extended?  Sort of.  The new stimulus bill allows employers to voluntarily  continue providing FFCRA to employees from January 1, 2021, through March 31, 2021.  However, even if you continue providing FFCRA leave, it is not a “new” batch of leave.  The continuation basically means that the employer voluntarily extends the end date of FFCRA from December 31, 2020, up to no later than March 31, 2021.  It does not refill leave buckets under FFCRA; it simply lets employees who have not exhausted their leave take FFCRA leave under the same rules that have been in effect since last April.

Here’s the key: most employers (but not school districts or ESUs) are incentivized to continue the existing FFCRA coverage to employees because the new stimulus extends the ability for covered employers to receive the tax credits Rich discussed above.  However, as you know by now, those credits do not apply to public employers like schools and education service agencies.

So should we comply with FFCRA voluntarily?  Maybe, but you should talk this through with your school lawyer and auditor/accountant.  Many schools are considering providing some type of COVID-related leave to employees beyond December 31, 2020, the expiration date for mandatory leave under the FFCRA for covered employers.  It appears from the new stimulus bill that the relief from the employer share of social security taxes may also continue through March 31, 2021, for public employers that continue FFCRA leave.  You’ll want to get advice from your accountant on that before making a decision on that basis.  

If we assume that’s true and your board was likely to provide some type of new COVID leave anyway, it may be worth continuing FFCRA for those employees who have not used their FFCRA allotments rather than creating “new” paid leave for everyone.  At least that way you could save the employer-side social security tax.  Again, this is just one factor you and your board should consider when implementing any new leave policies or addendums to your negotiated agreement.  The savings, if any, compared to the administrative hassle will be a local level decision that will likely vary.

If you have any questions about the non-tax-specific items in this article, please feel free to contact any one of us at KSB, or you can always call the office (402-804-8000) or drop an email to all of us by using ksb@ksbschoollaw.com.  Happy (?) New Year!

THANK YOU AND HAPPY POLITICALLY CORRECT WINTER BREAK TERM HERE!

Every year has its challenges and its ups and downs, but we’re going out on a limb to say 2020 will always hold a special place in our hearts.  COVID here.  COVID there.  Seems like COVID’s everywhere!  FFCRA you say?  Same to you!  But just in case you’ve forgotten already, here is a rundown of 2020.

 Title IX.  School’s open.  School’s closed.  Remote learning.  In person learning.  You can’t fire me because I’m gay!  What the hell’s a Wuhan?  Executive orders.  Directed health measures.  Local health departments.  The CDC.  Are we playing this season?  Impeachment.  MAGA hats at school and in the classroom.  Confederate flags.  BLM.  An Election.  Cleaning and sanitizing.  So much cleaning and sanitizing!  Masks.  I can’t wear a mask.  I don’t want to wear a mask.  Am I supposed to sneeze in my mask?  Face shields.  Plexiglass protectors.  So much social distancing and isolation that even Steve introverts and the anti-social are saying “WTF?”  PPP.  PPE.  Getting paid not to work.  Not getting paid enough to work.  Regular sick leave.  Emergency sick leave.  I’m out of sick leave!!!  Where the hell are all of the substitute teachers?  Early retirements.  Regular retirements.  So many superintendent openings!  Title IX.  Anti-maskers.  Anti-vaxxers.  Parents demanding to be paid for “teaching” their kids.  Parents realizing educators truly deserve a raise after only one week at home with e-learning.  SROs.  Rule 62 petitions.  RIP RBG.  The Zooms and webinars.  Sweet baby Jesus; how many video sessions were there in 2020?  Virtual classrooms.  Kids not showing up for e-learning.  Kids turning off their cameras.  People not realizing their camera is still on and doing . . . non-camera things!  “You’re on mute.”  The Unicameral - it’s always something!  Is it Bobby with a “y” or Bobbi with an “i”?  Which bathroom should he, she, or they use?  Did we mention Title IX?

 But there was one constant positive this year.  The teachers, administrators, board members, classified staff members, school volunteers, and other educators being there each and every day, making the best of a bad situation, and supporting the students and their education.  From all of us at KSB, we say THANK YOU!  And whether you are celebrating Christmas, Kwanzaa, Hanukkah, Las Posadas, Winter Solstice, Chinese New Year, Ōmisoka, Boxing Day, Bodhi Day, Hogmanay, or something else, please have a safe and happy holiday season!  But to you, 2020, we say Happy Festivus!  You had best get ready for the Airing of Grievances!  And then we’re off to 2021!

Ho Ho Ho for your SROs!

There are as many as nine Truhe, Pruett, and Johnson children running rampant in Nebraska and its public schools.  On a totally unrelated note, many public school districts have chosen to deploy school resource officers (SROs) at their schools.  As you may recall, the Unicameral adopted LB 390 in 2019 that imposes minimum requirements regarding the deployment of peace officers in school districts as SROs.  The law requires schools to cooperate with law enforcement as provided in a memorandum of understanding (MOU) that includes specific terms on training, required policies, and other topics.  As the January 1, 2021, deadline is fast-approaching, now is a great time to make sure your school has completed the necessary training, adopted the required MOU, and adopted or revised appropriate policies.

Required Training

Each school resource officer or security guard and a minimum of one administrator in each elementary or secondary school where a school resource officer or security guard is assigned must attend a minimum of twenty hours of training focused on school-based law enforcement, including, but not limited to: coursework focused on school law, student rights, understanding special needs students and students with disabilities, conflict de-escalation techniques, ethics for school resource officers, teenage brain development, adolescent behavior, implicit bias training, diversity and cultural awareness, trauma-informed responses, and preventing violence in school settings.  KSB offers the required training in a video-on-demand series.  You can learn more about this training here.  

Required MOU

Schools must have an MOU in place with the law enforcement agency or security agency no later than January 1, 2021.  Schools have two choices:  (1) use the Nebraska Department of Education's model MOU, or (2) draft your own.  Your school’s MOU may “include any other procedures and provisions the school district and the law enforcement agency or security agency mutually deem appropriate” as long as it is “substantially similar” to NDE’s model MOU.  NDE’s model MOUs are available here (law enforcement agency) or here (security agency).  While NDE’s model MOU is a good start, we strongly recommend that you make substantial additions to it.  We have found that the NDE template does not address many substantive areas that we consider vital to such an agreement, such as: roles and responsibilities regarding school discipline, duties of the SRO, duties of school administrators, student rights, payment, and termination.  KSB has created its own template that we believe addresses all required and appropriate topics.

Update Policies as Necessary

The new SRO statutes do not explicitly require the adoption or amendment of any district policies, but they do so implicitly by requiring specific policies be identified in every MOU.  This means that districts seeking to comply with these new requirements must have in place policies which address, at a minimum:

• When a parent or guardian will be notified or present if a student is subjected to questioning or interrogation by a school official or by an SRO or security guard operating in conjunction with a school official.

• Under what circumstances a student will be advised of constitutional rights prior to being questioned or interrogated by a school official or by an SRO or security guard operating in conjunction with a school official.

• The type or category of student conduct or actions that will be referred to law enforcement consistent with the requirements of Neb. Rev. Stat. §§ 79-262 and 79-293.

• A student and parent complaint process to express a concern or file a complaint about an SRO and the practices of the SRO with the law enforcement agency or security agency.

Schools should review their policies and update them as necessary to make sure they comply with the new requirements.  If you find you don’t have the necessary policies, KSB has drafted a single policy that includes all of these requirements as well as some other topics. 

We hope this information will help you prepare to deal with the KSB spawn! If you have any questions or would like to purchase KSB’s SRO video training, MOU template, or SRO policy, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000.

There Are (Copyright) Rules

If you talk to Steve, you know that there are rules, and they are to be followed.  If you talk to Karen, you know one of those rules is that Christmas music is appropriate ONLY after Thanksgiving and before New Years.  And if you talk to Bobby, you know that there are a lot of boring rules about copyright that we let him drone on about when he gets a bee in his bonnet you ask copyright questions.  So, in light of all of these rules (including the effective DHMs), how in the heck are you supposed to get your holiday concert in between Thanksgiving and New Years?  While your concert may look and sound different, we’re confident that you can still get one in while following all the rules.

Gatherings Rules.  At the time of this blog post, the effective Directed Health Measures restrict gatherings to 25% of an indoor facility’s rated occupancy.  Additionally, parties at a gathering may not exceed eight individuals, and each party must maintain six feet of distance from others.  Depending on the size and occupancy of your facility, this could hamper your ability to accommodate your usual holiday concert crowd.  You may also want to consult with your county attorney and local public health departments to ensure that they do not consider a holiday concert to fall under the more stringent rules related to “extracurricular youth activities,” such as the limitation on attendance to household members of participants.

Copyright Rules.  If you have purchased sheet music, that typically comes with rights to perform the music.  So in a typical scenario, purchasing the sheet music would also come with a license to perform it live.  However, those licenses are typically limited to in-person performances that are not broadcast or recorded for redistribution.  Usually, when you add in the ability to live stream or record and post the performance, you are then in need of additional licenses, such as mechanical, production, broadcast, digital performance, etc.  

Similarly, the only recording typically allowed under a "standard" music purchase is for instructional and feedback purposes.  The same is true under the fair use exceptions in the law, discussed below.  Recording for critique is okay; recording to share with grandpas and grandmas typically is not--at least not without the proper license.

Fortunately, each music purchase you made should have come with an explanatory document or contract that will clarify the licenses you have and what you can do with them.  To avoid any copyright issues, that means you'll have to check each one and, if it is anything but clear that you can record or otherwise broadcast your event with that music, you will have to contact the copyright holder to clarify your rights and possibly purchase additional licenses.  If you can’t get the right licenses, you should forego that song.  I’m sure music educators will be thrilled to change or scrap songs this late in the game. 

Fair Use?  I can hear you now: “But what about fair use?”  Fair use is an exception that gets tossed around a lot by well-intentioned educators, but it is unfortunately much more limited than one would think.  The typical fair use for music is the ability to record a practice or performance for purposes of critique or instruction, not for broadcast or dissemination.  

A Holiday Miracle.  In light of the pandemic, we are aware that many artists and companies are much more accommodating this year when it comes to granting licenses for things like virtual performances.  In fact, several have provided blanket licenses to use, record, and broadcast their works during COVID.  Others are willing to accommodate schools, even if they don’t have a global exception, or are willing to offer licenses for a reasonable fee.  

Fortunately, some of our clients have been willing to share their experiences in attempting to obtain additional licenses from the companies that sold them music, and we hope that this will save some of you a little time and frustration.  If you have any success stories or good details about working with other companies, please pass them along!

• Plank Road Publishing, which is a K-8 Magazine, indicated that all music can be used during the Pandemic for free.  We recommend calling them to confirm your use of their music at 1-800-437-0832.

• C.L. Barnhouse Company in Oskaloosa, Iowa indicated that all music can be used during the Pandemic for free. We recommend calling them to confirm your use of their music at 641-673-4718.

• Warner Brothers said the cost would be $350.00 for broadcast rights, but they said there is also not enough time to give permission for December 2020.

• John Jacoson's Music Express Magazine by Hal Leonard offers additional licenses for $35.00 per song, so long as your copyright notice reflects that the works are owned by the Hal Leonard owned publisher. You can request permission at support@permissions.zendesk.com

• Essential Music offers additional licenses for $20.00 per song.  You can find request forms at essentialmusic.com

• JW Pepper is unable to provide broadcasting rights, which can only be provided by the group that arranges their pieces.

• Pinkzebra Publishing allows you to request permission to use their works at easysonglicensing.com.

• Heritage Music Press, a division of The Lorenz Corporation, may be contacted at 1-800-444-1144. 

Striv.  The folks from Striv are excellent to work with, and they are right on top of issues like this. However, it is important to remember that contracts with Striv generally provide that it is the school, rather than Striv, that is ultimately responsible for copyright compliance.  We don’t blame them for that, because ultimately the responsibility for copyright compliance is with the entity using the copyrighted work--which in this case is the school.

Other Platforms.  If you are not using Striv but instead want to broadcast or post a performance using Facebook Live, YouTube, or another platform, keep in mind that even if you get the correct licenses from the copyright holders, you must still comply with that platform's terms of service/use.  For example, here is Facebook's Copyright Q&A page, and here are their Terms of Service, which make clear Facebook can take down any content they want if they think you could be violating the law or subjecting them to exposure.  So, even if you obtain the proper licenses, YouTube or Facebook may still take down your content unexpectedly.

We hope this information is helpful as you plan your winter concerts and hope that Santa puts you on the vaccination nice list for following all the rules.  If you have any questions, or would like to share your experience in coordinating licenses for upcoming performances, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or 402-804-8000. 

Zoom, Zoom, Zoom! (Your Next Board Meeting?)

Although the news reports keep assuring us that a COVID vaccine will bring this pandemic to an end by next summer, for now, the infection numbers continue to rise.  Education leaders have legitimately expressed concern over whether it is safe to continue holding public meetings where school board members, administrators, and members of the public all pile into a library or conference room.  Unfortunately, Nebraska’s Open Meetings Act requires school board members to attend meetings in person only (ESUs can hold virtual meetings already).  However, on November 30, 2020 the Nebraska Governor’s office released Executive Order 20-36, which will allow Nebraska public bodies to hold electronic meetings beginning December 1, 2020 and continuing through January 31, 2021.  

Virtual Meetings Permitted  

Executive Order 20-36, which can be found here, provides that school boards “may meet by videoconference or by telephone conferencing or by conferencing by other electronic communication so long as there is made available at such meeting access to members of the public and to members of the media.”  

The order was updated soon after its initial release.  One of the “WHEREAS” clauses made a reference to 10-person limitations on gatherings, which did not accurately reflect the restrictions in the now-effective Directed Health Measures.  The Governor’s office removed that reference, so as long as your meeting is compliant with the current DHMs for your community, you can still meet in person.  As of the date of this post, that’s 25% of the selected meeting room’s rated occupancy, and all attendees must be able to social distance. 

Back to the EO, while it waives the requirement to hold in-person meetings, it is important to remember that all other provisions of Nebraska’s Open Meetings Act still apply, including the advanced publicized notice and agenda requirements.

Guidance from the Attorney General

The Attorney General posted additional guidance about how the Executive Order would be interpreted by his office.  This guidance can be found here, and if it looks familiar, that's because it piggybacks off the prior guidance issued in light of the similar Executive Order issued in March. 

Notably, this guidance states that if a board elects to have an in-person meeting, the meeting must be open to the members of the public and press who wish to attend.  This would apply in any instance where a quorum is physically present in one location to meet, even if other members are participating electronically.  Remember, though, that the Open Meetings Act always permits a board to meet in its usual meeting place, even if that means the board cannot accommodate all members of the public who wish to attend that meeting in the usual meeting place.  We believe that this means a board can meet in its usual meeting place so long as it can accommodate some members of the public under the new DHMs, and may limit attendance at that meeting consistent with the gathering restrictions. 

Additionally, the Attorney General “highly recommends” that notice for virtual meetings indicate that the meeting will be held electronically and clearly state how the meeting may be accessed.  According to the guidance, if no quorum of the board will be physically present together, the meeting’s notice should also indicate that there will be no public in-person attendance.

Individual Board Members Participating Electronically if Quarantined/Isolated

Also keep in mind that a prior Executive Order, 20-34, permits any single board member to attend, vote, and participate electronically if that board member has been ordered to quarantine or isolate pursuant to the current DHMs.  This authority only extends to December 31, whereas the virtual meetings EO discussed above applies through January 31.

Meetings in December in January

In light of the new executive order, boards have several options for how to hold their December and January meetings:

1. Meet in person in your usual meeting place.  However, this must be done within the gathering size limitations and in a space that is large enough to permit social distancing as required by the executive order.  Because the Open Meetings Act clearly permits a board to meet in its usual meeting place regardless of its ability to accommodate the expected audience, we believe that means capacity at the meeting may be capped in light of the Directed Health Measures, and attendance may be limited to a first-come-first-served basis.  If you do not believe your usual meeting place will be sufficient to accommodate your expected audience in light of the Directed Health Measures, you may want to consider broadcasting the meeting so that it may be accessed by more members of your community in a safe manner.

2. Meet in person in a larger space that can accommodate the expected audience.  This also must be done in compliance with the Directed Health Measures.  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.

3. 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.

4. Have an electronic meeting where no quorum of the board physically meets in one location. To do so, you should follow the AG’s guidance regarding notice.

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

Give Thanks…….. That You Do Not Have to Do ANYTHING in Response to that Email From Norby and Welding

Nebraska’s school administrators were decidedly NOT thankful to open their emails before Thanksgiving.  Norby and Welding, the law firm that represents the Nebraska State Education Association, sent an email to every school district and ESU in the state on Wednesday, November 25th.  This communication provides education entities with notice that the NSEA has filed a “Rule 62 Petition” with the Nebraska Department of Education and requested a hearing on the petition.  Remember that several days ago, the NSEA announced in a press conference and social media campaign that it intended to do this, so it shouldn’t be a surprise.

However, here’s the important part: you do NOT need to cancel your plans to gorge yourself on stuffing and pumpkin pie (and probably a Husker loss on Friday).  This communication, and NSEA’s petition, do not require any immediate response from Nebraska’s education entities, and most of you may not respond at all. 

What’s this Rule 62 business again?  Under Rule 62 of the Nebraska Department of Education, any person may petition the State Board of Education as to the applicability of a “statute, rule, regulation or order enforced by the Board.”  You may recall that this is the mechanism that the ESUCC used to ask the State Board to waive various rules and requirements last spring due to schools being closed for in-person instruction.  The NSEA attorneys are seeking to use this same process to ask the State Board of Education to make new rules for schools to follow while the COVID pandemic remains an active public health concern.  

Why did you get this?  Rule 62 requires anyone who files a petition with the State Board to also serve a copy of the petition on “all necessary parties, including all persons, political subdivisions, corporations, or other entities who are known to have or claim any interest, legal right, duty, privilege, or immunity which would be directly affected by issuance of a declaratory order in this matter by the Board.”  This is why your ESU sent you a copy of ESUCC’s Rule 62 Petition last May.  The NSEA’s attorneys were entirely correct and legally required to send all affected education entities a copy of their petition.  And you will be entirely correct to simply ignore it for now, because there is no obligation to respond.

Our Initial Impressions.  The KSB attorneys are still analyzing the petition, but our initial reaction is that we do not believe that the State Board has the legal authority to do the things the NSEA is asking it to do.  This is because the petition does not seek clarification as to the applicability of existing obligations, but instead requests that the State Board essentially implement new requirements.  Making new rules compared to interpreting existing rules generally would require NDE to go through a rulemaking process.  That is not the function of a Rule 62 petition.

We will continue to work with members of the education community to support you during this pandemic, and we may ultimately submit some sort of response to the State Board regarding the NSEA’s petition.  But it is not necessary to have this petition spoil your Thanksgiving.  And for that, we can all be grateful. 

If you have questions, please let us know, but for now, have a great Thanksgiving and holiday weekend!