Vaccine Mandates for Schools?! No (or at least not yet), but your “federal contractors” and Head Start employees on the other hand...

TL;DR: there is no current or draft law, regulation, rule, standard or other requirement that mandates public schools in Nebraska and South Dakota to vaccinate their staff for COVID-19.  Not from an executive order, not from OSHA, not from the man on the moon.  For now, there is no obligation that schools, ESUs, or other public educational entities force staff to get vaccinated.  It remains a local decision.

If you want the details and analysis, read on... 

Biden EOs.  As you’ve heard us talk about over the last few months, the Biden Administration issued several executive orders earlier this fall mandating vaccines for certain individuals or mandating that regulatory agencies, like OSHA and DHHS, create rules.  Broadly, these mandates focus on employees working for the federal government; employees working in healthcare facilities that receive Medicaid or Medicare; federal contractors; Head Start employees; and private employers covered by OSHA with 100 or more employees.

There is A LOT of confusion out there about who is covered by each of the mandates, and there probably will be for some time.  Litigation is already underway, too. Nothing is “final, final” yet, but we have a pretty good idea that the answer is, “No,” there is no current vaccine mandate that applies to Nebraska or South Dakota schools coming from the Biden Executive Orders or agency rules.

OSHA ETS for 100+ Employers.  Just a few hours ago, OSHA provided notice that it would finally release its “emergency temporary standard” (ETS) it was directed to implement by President Biden’s executive orders earlier this fall.  This is the one you’ve seen on TV and read about in the news.  It requires “covered employers” with 100+ employees to have all employees vaccinated by January 4.

Nebraska and South Dakota schools are not “covered employers” under this law.  The Occupational Safety and Health Act and its regulations have long defined “employer” as follows:

The term "employer" means a person engaged in a business affecting commerce who has employees, but does not include the United States (not including the United States Postal Service) or any State or political subdivision of a State.

OSHA’s summary of the ETS states pretty clearly that “the agency is acting to protect workers now in adopting a standard that will reach two-thirds of all private-sector workers in the nation.”  If you’re interested (or a sadist), you can read all 490 pages of the ETS the DOL-OSHA will publish in the Federal Register, here. In a footnote buried on page 329, they confirm that state and local governments are not covered by the vaccine mandates, unless a state has voluntarily applied OSHA to its state and local governments.  Neither Nebraska nor South Dakota have done so.

Head Start Employees.  On September 9, 2021, the Director of the Office of Head Start indicated that DHHS/Head Start would initiate rulemaking to develop a rule implementing President Biden’s executive order to vaccinate all Head Start workers.  To date, we haven’t seen any official notice or draft rule.  The Head Start website encourages all Head Start programs to require vaccines, but again, there is no rule mandating it yet.  If you have Head Start employees, continue to follow any updates on this mandate, especially any rule issued by DHHS/Head Start.

Vaccination Requirements for “Federal Contractors.”  On the same day that President Biden directed OSHA to develop the rule, he issued another executive order imposing certain vaccination mandates on “federal contractors.”  If you heard that and assumed that it was directed toward companies like Boeing, Lockheed Martin, and other companies making fighter jets, you’re not alone.  However, the government’s conception of “federal contractor” is not so limited and almost certainly affects some schools reading this post . . . .

On September 24, the Biden administration’s task force tasked with implementing the federal contractor vaccine mandate released “Guidance for Federal Contractors and Subcontractors.”  In this guidance, the Federal Workforce Task Force defined federal contract and federal contractor.  This is where it gets interesting for schools.  The Task Force guidance defines a “contract and contract-like instrument” (aka, a covered contract) as follows:

That proposed rule defines a contract or contract-like instrument as an agreement between two or more parties creating obligations that are enforceable or otherwise recognizable at law.  This definition includes, but is not limited to, a mutually binding legal relationship obligating one party to furnish services (including construction) and another party to pay for them.  The term contract includes all contracts and any subcontracts of any tier thereunder, whether negotiated or advertised, including any procurement actions, lease agreements, cooperative agreements, provider agreements, intergovernmental service agreements, service agreements, licenses, permits, or any other type of agreement, regardless of nomenclature, type, or particular form, and whether entered into verbally or in writing.  The term contract shall be interpreted broadly as to include, but not be limited to, any contract within the definition provided in the FAR at 48 CFR chapter 1 or applicable Federal statutes.  This definition includes, but is not limited to, any contract that may be covered under any Federal procurement statute.  Contracts may be the result of competitive bidding or awarded to a single source under applicable authority to do so.  In addition to bilateral instruments, contracts include, but are not limited to, awards and notices of awards; job orders or task letters issued under basic ordering agreements; letter contracts; orders, such as purchase orders, under which the contract becomes effective by written acceptance or performance; exercised contract options; and bilateral contract modifications.  The term contract includes contracts covered by the Service Contract Act, contracts covered by the Davis-Bacon Act, concessions contracts not otherwise subject to the Service Contract Act, and contracts in connection with Federal property or land and related to offering services for Federal employees, their dependents, or the general public.

The guidance goes on to define covered contractors and subcontractors broadly as any “prime contractor or subcontractor at any tier who is party to a covered contract.”  

Yeah, you read that right.  Contracts subject to federal procurement rules and/or the Davis-Bacon and Related Acts (hello, ESSER-funded construction projects!) must require that prime contractors and lower-tier subcontractors on those projects follow the federal vaccination requirements and guidance on those projects.

From the looks of the guidance, any company that holds a federal contract or subcontract as defined above would be required to mandate vaccines for all of their employees.  The only exceptions are those required by law, such as an accommodation based on disability.

What is the deadline for these requirements to be included in covered contracts?  There is a phased in process for these requirements:

• For contracts that were awarded prior to October 15 but that will continue to be performed after October 15, the vaccination requirements must be added to the contract “at the point at which an option is exercised or an extension is made.”  We think this means that at the point where the terms of the contract are modified (maybe even through a change-order?), then the new provisions required by this guidance must be added.

• For bids solicited before October 15 and awarded prior to November 14, school districts must include the new provisions in the solicitation and are encouraged to include the new provisions in the contract.

• For bids solicited on or after October 15 and awarded prior to November 14, school districts must include the new provisions in the bid solicitation and in the contract.

• For contracts awarded on or after November 14, the new provisions must be included in the contract.

For all of your projects using federal funds, we recommend that you contact your school district’s attorney to discuss these timing requirements and the provisions that you need to include in your bidding documents and/or your contracts.

What does this mean for schools and vaccines?  Well, we’re still not exactly sure.  As we discussed in our most recent Q&A with KSB, the definitions within these vaccine mandates will be important--and now we’ve seen some.  There is already litigation (which Nebraska’s AG has joined) attempting to block these requirements.  If the government can successfully enforce the requirements broadly to apply to any contract entered into pursuant to “any Federal procurement statute” and “contracts covered by the Davis-Bacon Act,” that would mean any contract the school has entered into when using federal funds, such as ESSER III or the EDGAR procurement rules, may be covered.  The guidance suggests that the grant recipient (your school) should include contract provisions related to the mandates to ensure the contract puts the burden on any covered contractor to impose the vaccine mandate.  We have already assisted some schools in doing just that.

If you have any existing or future federal contract (such as for an ESSER III HVAC project, for example), you may be getting a call from your contractor(s).  We’ll keep following along with all of these mandates and rules and what it may mean for schools.  In the meantime, if you have questions contact your school attorney or contact any of the attorneys here at KSB.  You can email all of us using ksb@ksbschoollaw.com.

It’s a Team Decision!

If the last two years have proven anything, it’s that “local control” is a double-edged sword.  Schools have been tasked with keeping their doors open during a pandemic with minimal governance at the state or federal level.  On the one hand, this has allowed school boards to be flexible and responsive to the needs of their individual communities.  On the other hand, this has brought unprecedented scrutiny on each and every action taken by the school district, and a flurry of accommodation requests from parents, patrons, students, and staff.  

These accommodation requests should be handled on a case-by-case basis, especially when they relate to a disability.  For staff, this often requires engaging in the interactive process established by the ADA.  For students, this often requires a meeting of an IEP team or Section 504 committee to consider the request and take appropriate action.  This approach has been reaffirmed by recent guidance from the federal Department of Education and several federal court cases.

Return to School Roadmap

Only fourteen months late, on September 30, 2021, the U.S. Department of Education’s Office of Special Education and Rehabilitative Services (OSERS) released a “Return to School Roadmap” that provides guidance on meeting the individual needs of special education students returning to school after COVID-19 related closures.  

OSERS’ Roadmap makes clear that a child’s IEP team is responsible for addressing the school-related needs of a child with a disability in the context of COVID-19.  If a parent or IEP team member suggests certain protective measures because of COVID-19, or requests an accommodation from generally applicable measures or protocols, the IEP team must consider those requests. 

For example, we’ve seen many accommodation requests related to a district’s masking protocols.  In some cases, this takes the form of a request to be exempted from a masking requirement for some or all of the school day.  In others, the request is for the school to require masks or face coverings in circumstances in which it would not otherwise require them.  In either event, the student’s IEP team should meet to discuss and consider the appropriate response to that request, with the ultimate decision resting with the District Representative on the team.  This discussion should center on the individual circumstances related to the student at issue, their needs, and, to the extent appropriate, the needs of their peers.  

“I” is for Individual

This means that an IEP team can’t simply rely on the generally applicable policies and rules established by the school board or administration.  This is also the reason that some courts have struck down attempts by other state governments to prohibit masking requirements or require that exceptions to those measures be permitted.

For example, courts in Iowa, South Carolina, and Tennessee have issued injunctions preventing state officials from enforcing bans on mask mandates established at the State level.  These cases are currently being appealed, and similar litigation is ongoing in relation to masking requirement bans in Texas and Florida.  All of these lawsuits center on the application of federal law requirements that disability accommodation decisions be made on an individualized basis.

Keep On Keepin’ On

Fortunately for schools in Nebraska and South Dakota, the recent guidance from OSERS and the ongoing litigation in other states shouldn’t affect how decisions related to COVID-19 are made.  School boards should feel empowered to take the appropriate measures to keep their schools and students safe in a manner that is consistent with their community’s unique needs. In doing so, however, school administrators must be mindful that requests for accommodations on the basis of disability should be referred to the appropriate student team or committee for individualized consideration.

If you have any questions about individual accommodation requests or any other issue, you should feel free to call Karen, Steve, Bobby, Coady, Tyler, or Jordan at (402) 804-8000, or shoot all of us an e-mail at ksb@ksbschoollaw.com.  If you want more information on the latest developments in special education law, or practical solutions to the everyday challenges you face in this area, Karen and Bobby will be presenting on these issues at the upcoming 2021 Tri-State Regional Special Education Law Conference. 

Let’s Make a Deal*

*For those of you who had a remote and more than three channels plus PBS during your childhood, Let’s Make a Deal was a game show on CBS that first aired in 1963. A young Karen Haase faced off against Steve Williams in the show’s pilot, which has been sadly lost to the annals of television history.

Bobby put away his flip flops, Karen has both space heaters on in her office, and Steve has purchased and eaten six bags of Halloween candy.  That's right, negotiation season is here again.  Earlier this year, we wrote to stress the importance of being prepared with a comparability study in your back pocket and a careful review of your current agreement to drive your discussions at the table.  (If you’re not feeling prepared after re-reading that post, don’t worry - it’s not too late!)  Now, a decision from the Nebraska Supreme Court provides a timely reminder that being prepared for negotiations includes thinking through compliance with the Nebraska Political Accountability and Disclosure Act.  Fortunately, as we’ll discuss below, the Nebraska Accountability and Disclosure Commission, which enforces the NPADA, has provided boards with clear guidance for compliance during negotiations. 

Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302 (2021)

Last week, the Nebraska Supreme Court agreed that the chairperson for the board of trustees for a village in Nebraska could be fined $500 because he failed to comply with the NPADA with respect to a series of payments he received from the village.  

The NPADA does not prohibit a contract with a board member if the contract is an agenda item approved at a board meeting, and the interested officer declares the nature and extent of his/her interest in the contract prior to its consideration, does not vote on issues related to the contract, and does not act for the governing body as to the inspection or oversight of the contract’s performance.

In the Moore case, the evidence demonstrated that the chairperson received regular payments from the village for work he performed.  Payments were based on an hourly rate of pay approved by the board, and were made after the chairperson submitted payment requests documenting his hours of work.  The board would vote on the payments, but these payments were not included as agenda items, the chairperson did not regularly declare his interest in the payments, and the chairperson did not regularly abstain from voting on the payments.  The payments totaled $32,917.18 over three years. 

The chairperson argued that the work he performed for the village, and the village’s subsequent payments, were not governed by the requirements of Section 49-14,103.01 because he did not enter into a formal contract with the village.  The NADC, the district court, and the Supreme Court all disagreed, holding that the chairperson and the village entered into an implied contract governed by the NPADA.  As a result, the Supreme Court held that the chairperson had violated the Act and that he was properly fined for that violation.

Negotiations and the NPADA

While the circumstances in Moore set up a straightforward issue under the NPADA, negotiations with your employees raise much more complex issues. In the past, these issues were further confused by the NADC’s inconsistent advice to boards engaged in negotiations.  Fortunately, last October the NADC issued a written Staff Opinion clarifying the application of the NPADA to staff negotiations.  Specifically, the NADC clarified that:

• Board members whose immediate family members (such as spouses) are governed by the negotiated agreement may vote to approve the agreement, but may not participate in negotiations.  

• Board members whose immediate family members are classified employees may vote on a percentage or set increase for classified employees, generally, as long as they have not played any role in setting the increase and the increase isn’t specific to the immediate family member.

• Board members may not participate in negotiations on behalf of the Board when those negotiations will determine his or her own compensation.  So a board member who coaches may not serve on the negotiations committee. 

• Board members may not vote to approve a bargaining agreement or contract that determines his or her own compensation. So a board member who coaches may not vote on the CBA.

Conclusion

As Moore demonstrates, board members may be fined for violations of the NPADA, and must be mindful of the Act’s requirements when voting on or negotiating contracts or agreements that affect the compensation of themselves or immediate family members.  If you have any questions about the application of the NPADA to proposed or pending board action, you should feel free to call Karen, Steve, Bobby, Coady, Tyler, or Jordan, or shoot all of us an e-mail at ksb@ksbschoollaw.com.

Conduct Detrimental to the Team: What’s Happened Since Supreme Court’s Cheerleader First Amendment Decision

If you’ve recently watched us present on hot topics or digital citizenship, or if you’ve kept tabs on our blog during the summer, you know that in June the Supreme Court issued its ruling in Mahanoy Area School District v. B.L., 594 U.S. ___ (2021).  Since then, we’ve been discussing how this ruling will affect how our schools enforce activity codes of conduct and address threatening or bullying behavior.  Now, a number of courts have also taken up these issues and the future under B.L. is coming into focus.

Quick Recap

In B.L., the Court ruled that the First Amendment prohibited a school district from removing a student from the cheer team for profanity-laced messages on Snapchat on the weekend when the student was off school grounds.  Applying Tinker, the Court found that the District failed to demonstrate the student’s speech caused a material and substantial disruption.  This was true even though the student agreed to specific team rules addressing the use of social media and comments disparaging the team. In reaching this conclusion, the Court indicated that regulating off-campus speech is subject to a heightened level of scrutiny for disruption, and that the ability to prohibit lewd and vulgar speech without disruption does not apply to off-campus behavior.  The Supreme Court advised lower courts to be “skeptical” of school discipline for off-campus, online speech alleged to have caused disruption.    

As a result, schools have had to pause when addressing off-campus speech, especially when enforcing activity codes of conduct that often apply 24/7.  In many cases, speech that in the past would have violated the code of conduct, team rules, or a coach’s expectations can no longer be the basis for discipline, not even by informal means such as benching the student for a game.  That is because the First Amendment prohibits schools from taking any adverse action against a student for protected speech or which may tend to “chill” the students’ willingness to speak.  Indeed, the Supreme Court audaciously called public schools “nurseries of democracy” in an apparent effort to warn administrators that schools should encourage students to toe the line, not discipline them for it.

Inherently Disruptive Speech

The Court did, however, identify specific types of speech and conduct so inherently disruptive that the school’s ability to regulate it shouldn’t have to surpass the same heightened level of skepticism.  Specifically, the Court noted that speech that constitutes “serious or severe bullying or harassment targeting particular individuals” is inherently disruptive and may be regulated by schools even if it occurs off-campus.  This means that schools in South Dakota and Nebraska are not as limited by the B.L. holding and other First Amendment restrictions in implementing things like bullying policies required by state statutes in both states.  Those types of misconduct tend to “invade the rights of others” to pursue an education, compared to obscene or disfavored political speech.

In South Dakota, the legislature has long recognized that schools have a significant interest in addressing bullying, including bullying that occurs online, off-campus, or outside of the school day.  In fact, SDCL 13-32-18 provides that: “Neither the physical location nor the time of day of any incident involving the use of computers or other electronic devices is a defense to any disciplinary action taken by a school district for conduct determined to meet the definition of bullying . . .”  

In Nebraska, the Student Discipline Act limits a school’s authority to impose long-term discipline in response to off-campus bullying, and short-term suspensions and other lesser consequences (detentions, activity suspensions, etc.) are still subject to the limitations of the First Amendment.  

We suspect parents and students will challenge the breadth of the South Dakota bullying statute and lesser consequences imposed in Nebraska based on First Amendment limitations, including those imposed by the B.L. decision.  But when the misconduct is tied to things like bullying or harassment, schools generally have more authority.

True Threats and Fighting Words

In B.L., the Court also recognized the special interest in addressing “threats aimed at teachers or other students.”  This was recently addressed in A.F. v. Ambridge ASD, 2021 U.S. Dist. LEXIS 162835 (W. D. Pa. 2021).  That case centered around SnapChat messages of a football player, A.F., sent in a group chat to his fellow players and coaches.  After being confronted about not attending practices, A.F. replied with a series of harassing and threatening messages, including:

• “Show up at practice to beat yo ass b****”

• “Grab a f****** bottle and bash that s*** on your face til I see your brain b****”

• “Send yo b**** a** to the father”

• “It ain’t gib be stupid when yo a** dead”

• “I sincerely wish death upon your soul”

These messages were followed by a picture of A.F. holding a gun, which was believed to be a real gun.  A.F. was ultimately removed from the football team, and the student sued claiming that B.L. prohibited the school from disciplining him for his online, off-campus speech.

The federal court disagreed, and distinguished A.F.’s messages from the SnapChat story in B.L..  

“[B.L.’s posts] were, no doubt, profane.  Yet, they threatened nobody, did not allude to any actual or proposed danger to anyone, and could reasonably be construed as a crudely articulated commentary on the state of her cheer and softball programs. . . Here, A.f.’s communications were not merely profane, but they were actual threats.  Much of the threatening language was directed, primarily, at one student, R.G.  Rather than a generic ‘f*** school f*** softball f*** cheer f*** everything,’ . . . A.F.’s communications are threats, fighting words, and the very type of communications that the Supreme Court recognized as falling outside the protective scope of the First Amendment and, conversely, within the right of a school to regulate.” 

Expression, Not Conduct

Just as the First Amendment does not protect true threats or fighting words, the First Amendment does not protect conduct that is not expressive or that is illegal.  For example, in Cheadle v. North Platte R-1 Sch. Dist., 2021 U.S. Dist. LEXIS 153584 (W. D. Mo. 2021), a student was suspended from sports for 45 days after posting a video of herself on SnapChat consuming alcohol.  The Student sued the school, arguing that her behavior was protected by the First Amendment.  The court disagreed, noting that “when a minor consumes alcohol, she is engaging in an illegal act, not . . . speech.”  The fact that the school found out about the drinking from an off-campus social media post did not protect the student, because the school was disciplining for the illegal conduct, not the speech.

The Future Under B.L.

As schools adjust to the new normal, it is important to be mindful of what the Court did, and did not, do when deciding B.L.  Schools can still regulate off-campus speech as long as the school can actually demonstrate a material and substantial disruption.  Additionally, the Court explicitly noted that some off-campus speech is so inherently disruptive that schools retain a special interest in regulating that speech, such as bullying and harassment.  The Court did not limit a school’s ability to impose consequences when students engage in illegal behavior, alcohol, or drug use.  

However, the Court did send a clear message that schools will be expected to make a strong showing of actual disruption before regulating speech that is merely offensive or profane.  

We recommend that you review your regular and activity codes of conduct and consider as an administrative team how those will be applied to off-campus speech and behavior.  We also recommend that you educate your coaches and sponsors about the limitations of their authority in responding to off-campus speech.  Disparaging remarks about the team that may have led to disciplinary action in the past may now be protected by the First Amendment.  Finally, we recommend that you contact your school attorney if you find yourself in the vast grey areas that remain, or call Karen, Steve, Bobby, Coady, Tyler, or Jordan, or shoot all of us an e-mail at ksb@ksbschoollaw.com.

Good News Business Managers! What ISN'T Required of Business Managers for School Board Minutes

Lawyers don’t often get to be the bearers of GOOD news, so when it happens, we savor it.  At the 55th Fall Conference of South Dakota School Business Officials, Karen and Tyler got to share good news about meeting minutes and we enjoyed it so much, we thought we would follow up with this blog post.  We’re happy to inform all members of the South Dakota education community that managing school board meeting minutes should not be taking up as much of your time as it potentially is right now. 

First of all, what should we do for meeting minutes?  Here’s what the minutes should include, and hopefully it’s a shorter list than you think: 

• Date and location of where the notice and agenda were posted;

  • Notice must be posted “prominently” at the principal office of the District for at least 24 hours preceding the meeting

  • The notice must also be posted on the school district’s website (assuming you have one); 

• Whether the meeting is in person or via teleconference;

• A statement that copies of the relevant documents were available to the public;

• The substance of all matters discussed and acted upon; 

• Conflict of interest disclosures and decisions regarding those disclosures;

• How each member votes if the vote takes place by roll call; 

• If the Board goes into executive session, the minutes must include:

  • The purpose and citation to SDCL 1-25-2 (personnel, contract negotiations, consulting with legal counsel, etc.);

  • Which board members moves to go into executive session and who seconds; 

  • The results of the roll call vote of each board member. 

Additionally, the District has to maintain the unapproved draft minutes and make them available for inspection no later than ten days after the meeting.  Alternatively, if you record your meetings, you can post the recording of the meeting on your website within five days of the meeting instead of posting the unapproved draft minutes. 

Now, this is a fair amount to keep track of, but hopefully you have been routinely including most of this information in your minutes or, if you’re going to add new elements they won’t be onerous.  What we are REALLY excited to tell you about is what DO NOT need to include in your minutes.   You don’t have to:

• Note every member of the public in attendance;

• Note when members of the public leave; 

• Note who speaks during public comment; 

• Summarize what members of the public say during public comment;

• Include anything else not on the list above!

Hopefully this information is helpful for business managers by taking something off of the already overfilled plates. If you have any questions, please 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 . . . Again!

Did you miss the webinar live? The recording is below!

When: Monday, September 13, 2021 at 9:00 AM CT

Where: ZOOM (Info below)

What: COVID Q&A

The good news is that we’ve made it almost a month into the 2021-22 school year.  The bad news is that COVID questions continue to dog administrators and board members.  Based on recent developments on the state and federal levels, this coming Monday, we’re going to host another Q&A in our series of COVID Webinars.  We are sure your boards will have questions at their September meetings, and we want to give you the answers to share with them. Among other topics we’ll cover:

• The Executive Order that President Biden announced on Thursday 

• Whether a school can require masks and enforce mask rules despite what Governor Ricketts and Governor Noem think

• Schools’ obligations and ability to conduct contact tracing and require quarantines without local directives  being in place 

• Staff leave now that FFCRA is long gone

• Accommodation requests from employees and students  

• We will also field questions from everyone who cares to ask them

As with our previous COVID webinars, there is no charge for this webinar, as we want to support schools in any way we can as you navigate this never-ending pandemic.   

JOIN THE ZOOM HERE!

Negotiations Preparation: The Time To Start Is Now!

Now that you’ve made it through the first couple weeks of school, we wanted to turn your attention to negotiations!  We held Session 2 of our Superintendent Rookie and Refresher Series this week covering negotiation basics and timelines.  It prompted us to remind all of you that the time is now to start preparing for negotiations.  As a reminder, you can sign up for our full superintendent and/or principal series, or get access to individual series webinars (and records and materials) on an a la carte basis.  You can find out more about our webinars here.  If you have any questions, just let us know.  

We have blogged about negotiations suggestions in the past.  You can access those here and here.  For now, here's a quick refresher on the timelines and the things KSB recommends to be prepared for negotiations.

NEGOTIATIONS TIMELINES

October 1st If the local association has not been certified by the CIR, the board must respond to the association’s request for recognition.

November 1st Negotiations must begin.  You must conduct at least 4 negotiations sessions by February 8, unless you settle prior to the need for 4 sessions.

February 8th If the board and teachers have not reached agreement, the parties must submit to a resolution officer for fact finding and/or mediation.

March 25th * The fact finding/resolution process must be concluded.

September 15th The Commission must render its decisions. 

* Negotiations, mediation, and fact finding must end on or before March 25th of the year before the contract year in question or within 25 days after the certification of state aid for the contract year in question, whichever occurs later.

OTHER RECOMMENDATIONS FOR BEING PREPARED

We also recommend you take the following steps soon, prior to the start of negotiations:

• Determine your LEGAL array.  “But KSB, we always use our activity conference.”  “Don’t worry, we have an agreed upon array with our local union.”  “Our salary is higher than everyone because of our cash-in-lieu, so our array doesn’t matter.”  Yeah, we’ve heard it all.  Without determining your proper array, sticking to “what you’ve always done” is the equivalent of going in blind.  Even if you want to use a unique array, you should at least know your actual, legal array.

• Conduct a reliable Comparability Study. For your total compensation to be considered comparable and lawful, it must be within 98-102% of the array CIR Midpoint, which is an average of the actual midpoint and mean of the total compensation within your array.  If you don’t know what that means, it’s time to talk to your school attorney about a comp study or the merits of comparability software, like Northstar from NASB.  If you do know what that means but haven’t done a comp study recently, it’s time to consider it.  

• Review your existing negotiated agreement.  Doing a comp study but failing to review your negotiated agreement for unclear, unlawful, or missing key terms is the equivalent of paying your mortgage and your bills but letting the house fall into disrepair.  No one is coming after you, but you could be in danger without even knowing it.  If it’s been awhile (or has never happened…), it’s time to go through your negotiated agreement and/or ask for a review from your legal counsel.

• Review other school districts' contracts within your array.  Outside of salary and benefits, what you may be required to include or could take out of your current agreement comes down to “prevalence” analysis.  If a certain practice is prevalent within your array, you may be ordered to follow it (like a sick leave bank...yuck).  Without reviewing the negotiated agreements of schools within your array, you can’t possibly know what’s prevalent.  We’ve been saying it for years--make 2021 the year you actually do it!

We hope these are helpful reminders for you now that negotiations season is only 7 weeks and 2 board meetings away.  If you have any questions, contact your district’s legal counsel if you don’t work with KSB or shoot us an email to ksb@ksbschoollaw.com.  Better yet, Mrs. Shari Russell is THE person to contact to talk comparability, so drop her a line (shari@ksbschoollaw.com) or give her a call (402-804-8000)!

KSB’s Husker Predictions… Read no further, ye who chug the Kool-Aid

Before we get into the picks, here’s your reminder that KSB’s annual tailgate party will be held from 8-11 AM on September 4.  In light of Lincoln’s new indoor mask mandate and to have a safer event, we’re hosting the tailgate outside, in the front of the Cornhusker Hotel (the 13th Street side).  We’ll have a temporary pause in the party while the Husker team loads the buses, but you, your kids, and even Karen after a few drinks will get to cheer them on for a matchup against that perennial powerhouse...Fordham!  

If you haven’t RSVP’d, you can do so here.

Now what you’ve all been waiting for . . .

KAREN’S PREDICTION:

It seems fitting somehow that the morning Shari told me I HAD to get my Husker predictions written is the morning that my daily Bible reading was from the book of Job.  Specifically the second chapter where, after Job has lost everything and is covered in boils, his friends come to hang out and Job is so sad that the friends just sit there for a while, saying nothing.  Well Husker fans, here I am for you.  Let’s just all take a breath and feel each other’s pain shall we?.  Ooooof.  Please spare an extra moment of reverential silence for your KSB Husker fans.  We are cooped up with Notre Dame, Michigan and (gag) Iowa fans here, people!

Now, for the good news.  This Husker season reminds me of the episode of M*A*S*H when Colonel Potter put Charles Winchester in charge while the Colonel was gone.  Charles said, “I’ll try not to let you down” and Colonel Potter said, “Son you can’t let me down, because I ain’t expecting nothing of ya!”  And THAT my friends, is my theme for the Huskers 2021 season.  The Huskers can’t let me down, because I ain’t expecting nothing from them!  

• Snaps sailing over the quarterback’s head?  Been there, done that. 

• Piss-poor field position.  LOL, let me count the ways. 

• Stupid penalties?  Hold my beer.  

• NCAA violations? (WAIT - WE WERE CHEATING LAST YEAR AND WERE STILL THAT BAD?  WHAT THE ----???)  Nope, not even that can goad me into anger - I mean we at least got the benefit of extra help (WAIT - THE CHEATING WAS FOR SPECIAL TEAMS AND WE STILL HAD THE 124th RANKED SPECIAL TEAMS IN DIVISION I FOOTBALL???) Let’s take another deep breath here….. 

No, this is the year of no expectations, and I refuse to budge from that resolution.  

So, with completely ZERO expectations, here are my predictions for the Huskers’ 2021 campaign:

Illinois - The Fighting Illini will be all fired up and ready to chew through concrete for a new coach.  And the Huskers will be pretty wobbly due to the distractions posed by the NCAA and Oklahoma-gate.  I predict this will be a close game, but the Huskers should pull it out unless they do something boneheaded to lose it in the fourth quarter. Win

Fordham - This will be a typical embarrassing win against kids who are awed to be in Memorial stadium.  (The Huskers should be grateful that the Westside Warriors are too busy with their high school schedule to have filled this open date.)  This win will have the dudes wearing 1988-era Starter jackets calling sports talk radio saying “we’re back baby!”  In fact, we will NOT be back. Win

Buffalo - see Fordham.  Only Starter-jacket guy will be even more annoying and will start predicting that the Huskers will jump up and surprise Oklahoma.  In fact, we will NOT surprise Oklahoma. Win

Oklahoma -  The 2021 Huskers will look like those photographs of veterans who stormed the beaches of Normandy -- NO REALLY, THEY WERE ONCE STRONG AND HANDSOME! BUT LOOK HOW WITHERED THEY ARE NOW! The Game of the Century was a long time ago.  And it will never seem as distant as it will on September 18. Loss

Michigan State - Sparty’s Jaylen Hunt will have his work cut out for him, but by the time the Huskers limp into East Lansing, he will have the kinks worked out.  A beat up Husker team will talk about bouncing back, but instead Michigan State will bounce back from their loss the previous week (Miami  -- ewww).  Loss 

Northwestern - These two teams should be pretty even, but we have this weird thing in the series where the visiting team wins more often.  A shaky Husker crew will wilt late in the game at home.  Loss.

Michigan - I would LOVE to have the Huskers pull down Jim Harbough’s khakis and give him a big ole swirlie.  And I think Nebraska will put up a good fight.  But the losses will be piling up and I don’t think this 2021 crew will have the starch to see it through.  Loss. 

Minnesota - Does anyone else remember when Nebraska played the Golden Gophers back in 1983?  When their team’s play was as goofy as their mascot? Yeah, me too.  Good times.  Let’s remember how awesome that game was when, on October 16, we are all confronted once again by just how freaking annoying P.J. Fleck can be when his team is winning. #RowTheBoatOnYourOwnGoddamnedTime.  Loss.

Purdue - This the most interesting game on the schedule, IMHO.  The Boilermakers are obviously not the Purdue of old, and the Huskers will be at home.  This will be a high scoring game with contributions from unexpected Huskers who will have to be on the field due to starters being either injured or benched for poor play.  But in the end, the Blackshirts will not be able to hold their ground. Loss

Ohio State - Sigh.  How about instead of a football game, we challenge the Buckeyes to a TikTok dance-off?  No? Loss

Wisconsin - God how I hate these guys.  They are a Budget Value™ Nebraska Football program who are now better than the real thing.  Want to see great O line play?  Running backs who sacrifice their bodies for the last additional yard?  Disciplined defenders that stay home and mind their own assignments?  You’ll see all that in Madison, but sadly it will be from the Badgers, not the Huskers.  And those jerks have also spoiled the “Jump Around” song for me.  Blech.  Loss 

Iowa - Ah, yea, the home of Idiots Out Wandering Around.  The Ames Library fire that destroyed both books.  The fanbase that has to tailgate so they can gather enough natural teeth for a full set.  Yeah, those a-holes are going to beat us again in Lincoln.  Loss. 

Big Ten Championship - LOL (sob) 

That’s it friends.  A 3-9 season.  We will not have any joy in Memorial Stadium this year unless Garth Brooks comes back for another encore.  Because this team -- this team that we all love and cheer for no matter what -- this team will force Husker fans to once again have the patience of Job. 

STEVE’S PREDICTION: 

Illinois.  Fordham.  Buffalo.  Oklahoma.  Michigan State.  Northwestern.  Minnesota.  Purdue.  Ohio State.  Wisconsin.  Iowa.  How do you think those games will turn out?  Well . . .  Because as we all know, only one game matters this year!  That’s right – once every eight years, the winningest program in college football history graces you with its presence.  On October 9th, Michigan returns to Lincoln, Nebraska!!!  Perhaps you remember the last time Michigan and Nebraska played.  Yes, that 56-10 ass-whooping at the Big House in 2018.  The good news for Husker fans?  It probably won’t be a 46-point drubbing this time around.  The bad news?  Both teams are still coached by their underperforming favorite-son quarterbacks – Jim Harbaugh at Michigan, and Scott Frost at Nebraska.  They were going to “save” their respective programs.  To say the results have been less-than-stellar is an understatement.  The only performance in the last ten years that has been more disappointing than theirs is RBT’s on his wedding night [LINK REMOVED BY EDITOR].  While Harbaugh has been a disaster in big games, I predict the Maize and Blue prevail over the Scarlet and Cream 31-23.  And if I’m wrong and a poorly-coached Michigan team manages to lose this game?  We’re ready for you, Jim!

On the brighter side for Husker fans who love money, Vegas is BEGGING you to take some of theirs!  They have set the over/under on Husker wins this year at 6.  The Huskers are likely to finish 3-9, 4-8 at best.  I strongly suggest you put some of your hard-earned dollars on the under so that you can at least profit from another painfully long and losing Husker season.  

 BOBBY’S PREDICTION:

She’s done it.  The gravitational pull of Haase’s existential despair around this football program has finally broken some of my spirit, and now you get to read about it.  

In the inimitable words of Bill Withers, there ain’t no sunshine when she’s gone.  She’s been gone or in the process of leaving for 24 years. (Congrats to Frank Solich on his retirement, but there’s a reason I’m including his tenure in the body count.  I think he was very well suited for a MAC-level head coaching job in 1998, too…).  

Unlike Karen, I think there’s a future where Nebraska returns to a perennial top-20 team and wins the division as much as it loses it, but Scott Frost isn’t the guy to get us there, unfortunately.  So, what does his penultimate season have in store?

Apparently, oddsmakers see betting interest on both sides of 6 (out of 12) regular season wins.  There are plenty of predictions on either side of that line, but for the first time ever I join most of my KSB colleagues in seeing that as a ceiling.  That’s true despite a schedule that looked brutal 3-4 years ago but now seems pretty tame by comparison.  That won’t matter, though.  Here’s what I see:

Illinois: I was planning to be in Ireland for this one (thanks, COVID).  We’re lucky Bielema is in his first year.  He may not be the best human being on earth, but he’s a good X’s and O’s coach who’s had our number.  He’s also added a few layers of seasoning after his time at Wisconsin, spending time in the SEC and New England.  His new coordinators have fielded good units at their past stops.  I think we win this, but as the line shrinks closer to a one-score game as we near kickoff, I think that’s where it ends up.  Illinois returns the most super seniors of any program in the country and only lost a few players from the 2-deep that drubbed us in Lincoln, but we’ll have 4-5 more practices in (they started about a week later to save some practices for bye weeks, apparently).  Plus, if we lose this game, we just as well redo our picks for the year and start raising money to finish the new football facility, hire Matt Campbell, and pay Scott’s buyout.

Fordham: Win, but too bad Scott wasn’t successful booting OU and adding yet another puff game like this one...errrr...I mean he knew nothing about that (LOL).

Buffalo: Win at Illinois, win against Buffalo.  Lose to Illinois, and who knows where the psyche of the team will be.  I’ll go win, mostly because I think we beat Illinois and have a chance at Frost’s longest winning streak at Nebraska: 3 games.

Oklahoma: The current 21.5 point spread is exceedingly generous. I think this gets ugly in Norman after SOMEONE (but definitely not Scott Frost...mmmkay?) tried to bail on the game; real ugly.

Michigan State: Again, this is one of several in the next 4-5 games where it looked way harder when Scott was hired than it should be now.  They’re in year 2; we’re in year 4.  That said, what has Scott Frost done to prove he can beat Mel Tucker?  Two straight losses when he was at Colorado.  We should win this; I won’t be surprised at all if we don’t.  Vegas sees it as a 6-point game in favor of Dear Old Nebraska U.  I think Scott finally beats Tucker because he finally has a kicker who can make a field goal.  (Gotta watch those flea-flickers, though.  It’s hard to recall a recent memory more seared into my brain than that groin kick in Boulder a few years back.)

Northwestern: We’re technically due in the rollercoaster that is this series.  Color me surprised a “meh” Hunter Johnson won the QB job over the South Carolina transfer Ryan Hilinski, but Fitz knows what he’s doing.  I also think Adrian Martinez will be out for this game or one of the 3 after it, just based on his injury history.  He hasn’t played an entire season of football since the Obama administration.  I think we lose this at home.

Michigan: Once again, we’re lucky Harbaugh has somehow managed his roster and QB position as poorly as Scott Frost.  In the battle of alums coaching for their jobs, and much to my chagrin given Steve’s affinity for Michigan and Jordan’s desire to kiss Steve’s a** and also become a Michigan fan, Harbaugh hands us our second straight loss at home.  We lose by 3+ scores if this is the game Martinez is out.  Michigan won’t be great, but they’re more talented.  May eclipse 200 total penalty yards in this one, too.  Just some ugly, mid-afternoon football in the Big Ten.

 Minnesota: See Northwestern and Michigan.  Minnesota’s OL may be one of the better units in the country, and their offensive backfield (especially Ibrahim at running back) is solid and experienced.  They’ve lost talent at receiver and have holes to plug on defense, but they’ll be a pretty good team.  Hell, they beat us with 30 guys missing last year and rushed for 200 yards with a decimated OL against our DL, the presumed strength of the Huskers’ 21 team.  That said, I do think our defensive front 7 should be a strength and our new WRs should have some time to get comfortable by this game.  Translation: this is a decent matchup for us.  But a larger point, if you’ll indulge me.  If you’d given me the choice between Frost and Fleck in 2017 I would have taken Frost and lost a lot of money betting on the relative win totals.  That said, I think we find some magic in one of NW, Mich, or this game and win one.  I think it’s probably this one just based on matchups, but who knows.

Purdue: I’m not sure what happened to Brohm, but he should have taken the Louisville job after his Cinderella season a few years back. We win this one unless the season is already spiraling (and there’s a 33% chance or better that happens).  

Ohio State: Woof. I do not like giving CJ Stroud and Ryan Day ¾ of a season to get comfortable.  They’ll have nothing but fond memories of embarrassing us with Herbstreit and Fowler in the booth in 2019 after College Gameday was on campus.  The only reason Vegas sees this as a 21-point spread is it’s in Lincoln.  Even if we somehow exceed expectations to this point in the season, the Buckeyes pound us at home and we tailspin to at least an 0-3 finish.

Wisconsin: No bellcow in sight for the Badgers...yet, but Paul Christ is too good and the system too entrenched.  We lose this by 2 scores in Madison.

Iowa: As much as it would make the holidays more tolerable for me when talking to my extended family, I don’t think this is the year.  I have us at 5-6 heading into Black Friday, and I have us at 5-7 heading out.  Iowa has a picture of a sack-fumble on Adrian plastered in their weightroom.  Because Iowa is the inferior program historically, they’ve long cared about this game way more than we have, and it shows.  They may be the inferior program, but they’ve owned us since 2014.  The fatigue of Ohio State/Wisconsin, a short week, and a coach on the hot seat is too much to overcome Iowa’s clean style of play.   

Another year, another missed bowl, and the question of the head coach’s job status will be a national headline.  As much as I don’t think 17-27 after 4 years should save anyone’s job at Nebraska, Frost’s buyout goes down after next year.  I think 5-7 gets him one more year (and hopefully a transfer QB…).  The NCAA investigation means little to me.  Sure, it was colossally stupid to let Frost throw his compliance department under the bus in the press conference, but he’ll sink or swim based on his record, not recording his special teams analyst coaching players and holding off-campus workouts.  Boy, for having an 11th coach and a bunch of illegal practices, it really didn’t show last year.  It won’t this year, either.

SHARI’S PREDICTION:

The fact that the Huskers start their season on my birthday has to be a good thing!  They will start off with a win against Illinois.  I’ve never heard of Fordham, so if they can’t win that game we probably shouldn’t even be playing football.   The Oklahoma game things will start to get ugly and it will be downhill from there.  Hoping for a win against Michigan and Iowa to keep Steve and Tyler quiet in the office.  I’ll go with a very generous 5-7.  (Had to keep my prediction short and sweet since these attorneys I work with had to write novels for their predictions!)

COADY’S PREDICTION:

OK, folks.  I am putting on my scarlet-and-cream-colored glasses with some unbridled (and unfounded) optimism here.  It’s not that I think I will be proven correct (I fear I won’t be).  It’s just that Karen and Bobby dumped enough grain trailers’ full of doom and gloom around here, so a contrarian opinion is needed.

Of course, I am not untethered from reality so I am marking down Oklahoma, Ohio State, and Wisconsin as losses.

But aside from those really good teams, it’s not like the rest of the schedule is all world beaters.  In a best case scenario, the Cornhuskers easily take care of business against Illinois, Fordham, Buffalo, Minnesota***, and Purdue.

[***I think Minnesota is a solid team and it might actually be an uphill battle to beat the Gophers.  Nevertheless, I refuse to live in a world where the mighty Huskers are assumed to lose to P.J. Fleck, Inc.  (Row-the-Boat ©2021, All Rights Reserved).]

That leaves toss-up games against Michigan State, Northwestern, Michigan, and Iowa.

[Looks into the camera like an episode of The Office and admits: OK, I get that Iowa’s Thanksgiving weekend tradition is to relentlessly run the ball down the “Blackshirts’” throats, but Tyler Coverdale may read this, and I’m just not going to move Iowa into the same class as Ohio State and Wisconsin.  I’m just not.  So, a toss-up for the Hawkeyes it is.)] 

Split those four [unrealistically perceived as toss-up] games, and Nebraska finishes at 7-5.  That gets Nebraska into a bowl and provides the coaching staff precious opportunities for more on-campus (unhidden!) practices before the bowl game.  It also buys Coach Frost another year to (finally!) bring Nebraska back to some semblance of national relevance.

JORDAN’S PREDICTION:

Most years, I arrive at my prediction by figuring out what would make Husker nation happy, and then working three steps backwards.  Maybe that makes me a troll (Bobby would tell you it does), but I’d say it makes me a realist. This year, though, even the most fanatical member of Husker nation *cough* Bobby *cough* can’t watch enough ESPN Classic to detach far enough from reality to quantify what happiness would even look like at the end of this season.  As a result, it brings me no satisfaction to predict a four win season after dropping the opener against Illinois.  For your sake as much as mine, I hope this is rock bottom, because this just isn’t as much fun anymore. (Okay, who am I kidding, I still f****** love it.)

TYLER’S PREDICTION: 

Rather than respond substantively to Bobby’s Iowa insults, (“They may be the inferior program, but they’ve owned us since 2014” is a heck of a sentence to say), I’ll just move to my predictions.

I’ve been on a 90’s music kick lately, so I’ll be using song lyrics to illustrate how the Huskers’ season will play out. I know Bobby will appreciate that since grunge was so big when he was in high school.

Illinois through Oklahoma: “Just when every day seemed to greet me with a smile, sunspots have faded. Now I’m doing time.”

Fell on Black Days, Soundgarden.

August and early September brings joy and hope as Big Red rolls through foes such as Fordham and Buffalo. Then they take a trip to Norman.

Hey, it could be worse Husker fans—you could still be in the “Big XII.” (Attn: Iowa State).

Michigan State and Northwestern: “Welcome to a new kind of tension”

American Idiot, Green Day.

Some hope? Nebraska loses a close one to the Spartans but beats Northwestern almost comfortably.    

Michigan and Minnesota: “On a weekend, wanna wish it all away”

Yellow Ledbetter, Pearl Jam.

Steve Williams smiles. Huskers drop these two.

Purdue: “Only yesterday you lied, promises of what I seemed to be.”

Interstate Love Song, Stone Temple Pilots.

Nebraska feels good the day after beating Purdue.

Ohio State and Wisconsin: “Into the flood again, same old trip it was back then.”

Would? Alice in Chains.

Back to normal. Huskers drop these two.

Iowa: “Bring your friends, it’s fun to lose and to pretend.”  

Smells like Teen Spirit, Nirvana.

Seven in a row to the Black and Yellow.

Overall: 5-7.

Off-Season: “I sit around and watch the phone, but no one’s calling.”

Longview, Green Day.

Scott Frost. 

MATT’S PREDICTION:

Man this is the best time of year! We get to talk football, and I wish there were better things to say about the Huskers other than probation and fines, but there’s not!  Can Martinez finally play up to his potential and get the Huskers to 6-6? (HA HA)  I hope so, for Frosty's sake!  Let’s GO S’KERS!!!!! I see some wins this year.  They will get wins against Illinois, Fordham (FCS school), Buffalo (shocked they are an FBS school) and then I think they will go on a losing streak!  Losses against Oklahoma (curb stomped), Michigan State and Northwestern. They will beat Michigan at home, a loss to Minnesota and a shootout with Purdue with Purdue edging them out. Now if the Huskers could only lose by 21 to Ohio State, then it wouldn’t be a bad loss for the Huskers. With that being said they will also lose to Wisconsin and as much as I would like them to beat Iowa (so Tyler doesn’t have bragging rights against half of KSB this year) they also will lose a tough, hard fought game!  Overall another 4-8 year! (Scott Frost is the Man!) 

2021-2022 KSB Webinar Series

We’re back baby!  The 2021-22 KSB School Law Webinar Series dates and topics are set.  

NEW SERIES: ROOKIES AND REFRESHERS! 

Are you stepping into a new position for 2021-22?  Are you training a new principal this year?  Or could you benefit from a “back to the basics” review of significant legal issues?  If so, the “Rookies and Refreshers” is for you.  These short webinars will focus each month on a key topic that we see superintendents or principals struggle with--no matter how experienced they may be.  We will have one strand for principals and one for superintendents.  These sessions will be short, practical and to-the-point and will allow for at least 15 minutes of open question time for live participants.  Registrants will also receive sample forms relevant to the various topics which you will be able to download and use in your district.  Click here for more information. 

QUARTERLY WEBINAR SERIES

October 5, 2021

Let’s Assess this Hot Mess: CRT, Sex Ed, Masks, Vaccines, Protests, Religion, and the Law: Why You’re Doing it Right if Everyone Hates You for Something

Let’s be honest, it’s been a hell of an 18-month stretch….  If you didn’t quit, retire, or schedule a lobotomy in the past few years, we know you’re in it to help kids.  But why does it feel like 95% of the job (and legal advice) is spent on everything but education?!  Let’s own the crazy together.  The cocktail of COVID-19, politicization of everything, and K-12 schools presents us with a unique opportunity to debrief, bitch a little, and learn a lot.  On a topic-by-topic basis, we’re going to cover what the law actually says (without plowing the same old ground, we promise) and how all of us can be better educators and leaders as a result of the chaos. 

December 14, 2021

(En)roll me away! Option Enrollment, Residency, Part-time Enrollment, Court-involved Youth, DHHS, Probation, Homeless Students, and Who Pays for What

Some of the most frustrating days in our office involve struggling to piece together multiple laws that dictate enrollment, education, and payment obligations.  Rarely does it feel like the educational needs and “best interests” of the child are the central focus.  From “DHHS just sent this superintendent letter” to “They say they rented an apartment in town,” the state and federal laws governing student enrollment and school obligations have always been a mess.  In the worst cases, they’re a strange combination of selectively followed, hardly enforced, internally inconsistent, and obviously misinterpreted.  This deep dive will help you make sense of all of these “Who’s your daddy?” situations and cover new legal options you have in some of the most difficult cases.

January 25, 2022

Title VI, Disproportionality, and Other Laws OCR Enforces that ARE NOT Title IX, IDEA, or 504!

Don’t get us wrong, Title IX, IDEA, and Section 504 are always great topics to cover with ever-changing cases, rules, and regulations.  We’ll be talking about them a lot this year, to be sure.  But increasingly, and especially under the Biden Administration, we are seeing more litigation and enforcement actions around other, lesser known laws that apply with equal force every time you open your doors.  This presentation will focus on your legal obligations under those laws and what exactly “disproportionality” means when it’s used by OCR, the Nebraska Department of Ed., and others.  We’ll also cover new and existing data reporting obligations and how we expect that will be used to regulate schools moving forward.

March 1, 2022

Don’t Shoot the Messenger (Again), but Title IX is Going to Change (Again)

The Biden Administration will be proposing substantive changes to the Title IX regulations you’ve spent hours learning about and enforcing [ducks for cover], probably at about the same time courts and OCR will be returning decisions on some of the initial complaints and lawsuits filed under the new sexual harassment regulations.  To complicate matters even further, the Supreme Court is declining to address key issues not involving sexual harassment, like transgender student participation and facilities, but the Biden Administration has signaled they may finally try to incorporate gender identity and sexual orientation into actual regulations rather than “guidance letters.”  We’ll be honest: the substance of this presentation will depend on when (not if) and how all of these things happen.  Book March 1 for now, but note that we may end up moving the date depending on how everything unfolds in what promises to be another busy year on the Title IX front!

FOR MORE INFORMATION AND TO REGISTER FOR ANY OF THE WEBINARS, CLICK HERE!

How To Talk to Your Lawyer, Remix

A few years ago, we published a blog post titled, “How to Talk to Your Lawyer,” where we explained how to get the best service from KSB School Law.  It was surprisingly popular, so this year, as we brace for what will undoubtedly be a challenging, but potentially hugely rewarding school year, we are sharing this information again.  This remix brought to you by a Q & A. 

Q: Who do I contact? 

A: Whoever you want! 

Seriously.  We constantly emphasize that you should reach out to any of us at any time on any topic. Yes, we do each have areas we specialize in (Steve and Coady are the construction gurus), topics we particularly enjoy (Bobby and Tyler LOVE them some First Amendment stuff), or subjects we have lots of experience in discussing (Karen and Jordan have spent a ton of time defending special education complaints over the past few years).  But some attorney licensing rules limit Nebraska clients from talking directly to Tyler or South Dakota clients from talking to anyone other than Tyler, Bobby, or Karen.  But please call any of us on any topic, and if we need to share your questions with another attorney we can easily do so.  The way our firm is structured, there is no unspoken motive for the attorneys to have “my” clients, and we meet weekly (and more often informally) to share work and discuss legal issues together.   

Another appropriate and highly effective strategy is to have Shari, Matt, or Ashley help you!  If you call the office (discussed below), they will connect you with the first person available.

Q: Which phone number should I call? 

A: Either cell or office is fine -- but not both one after another.  

We are happy to get calls at the office and on our cell phones.  Clients may call either.  We sure would like it if you didn’t call both, and here’s why: our office phones are linked to our cell phones.  If you call the office and push # for Bobby, the phone on his desk rings.  About 3 seconds later his cell phone rings.  If Bobby is out of the office, he is getting calls to his office on his cell phone.  We are experimenting with different calling tree and voicemail solutions to keep clients updated on who is in the office each day, should that affect which attorney you wish to reach.  Let us know if you have strong feelings on this issue.

Q: What if the lawyer doesn’t answer his/her phone? 

A: Leave a message and, if you’re in a hurry, call another KSB lawyer or the office.  But first, Leave. A. Message. 

One recurring issue with phone calls is a call with no voicemail.  If you don’t leave a voicemail, we’ll assume you called one of the other folks in the office or shot us an e-mail.  If you want a call back from the specific attorney you called, please leave a voicemail.  If you need a quick answer on something, e-mail or text may be the best way to go.  If one of us is sitting in a meeting or a conference, we can still get you an answer or forward your question to someone who can.  But, please know that if you leave a voicemail at the office, it will be forwarded to our e-mail.  Unless you need an immediate answer, voicemail AND e-mail is unnecessary.  If you leave one of us a voicemail, there is no need to leave voicemails with each attorney in the office.  We regularly check in with one another throughout the day, and Karen and Shari have to Snapchat each other every 37 minutes or one of them dies.

Q: Can I text you?

A: You bet!  

We text!  Some of us (okay, one of us) while driving, in a way that frightens the rest of the firm.  If you would like to text us, please do so.  You don’t have to leave a voicemail and send a text.  However, if you have a crisis on your hands please call and follow-up with a text so we can respond as soon as possible.

Q: What is your e-mail process?  

A: You e-mail. We answer, usually within 24 hours and always within 48 hours.  

We e-mail!  Probably too much.  We sincerely hope there aren’t any studies that show e-mail is bad for your mental health (but if you find one, please e-mail it to us).  If you need a quick response from a KSB attorney, and you don’t care who answers, you should e-mail KSB@ksbschoollaw.com, and it will go to everyone in the office.  This is a great way to get a fast answer to a legal question.  Please continue to e-mail us individually, especially if we have already started to work on an issue with you, but remember the KSB e-mail is there if you have a question you don’t mind being a “jump ball”.  If you have not received a response to your e-mail in 48 hours, you should follow-up with our office.  We have had cases where a client’s e-mail autofills the wrong information with an old e-mail address, or that were otherwise misdelivered.  We work to respond to every client e-mail in that 48-hour window.  If we’ve missed the window, something likely happened and give us a call.  

Q: Do you fax? 

A: OK, Boomer, yes we fax.  If we have to. 

We can fax.  (Just not to Coady . . . just kidding . . . kind of.)  We have the ability.  Fax if you must.  It is not recommended.  Scanning and e-mailing will be faster and easier for all parties involved.  Even better in cases with multiple documents is sharing a Google folder or Dropbox link.  

Q: Can I reach out to you on Social Media?

A: TikTok is for dance videos, not legal advice. 

We have social media!  We really love it when clients share interesting stuff with us on Twitter or Facebook.  However, social media is not a good way to get or give legal advice.  If you think you should be able to contact your lawyer via Snapchat or Twitter, congratulations on being one of the first millennial superintendents in Nebraska and South Dakota!  Otherwise, please enjoy our social media posts for interesting articles, good (Bobby) and terrible (everyone else) takes on Husker sports (Guess who wrote this part!) and pictures of our dogs. 

We hope this communication rundown has been helpful.  If you have any questions, please call/e-mail/text as appropriate. For a downloadable pdf with the KSB crew’s contact information, please click here. 

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.