Matters of Public Concern: Staff Political Expression and the First Amendment

As societal and political tensions remain high, Districts have to walk the balance beam of respecting employee’s first amendment rights on one hand, and avoiding controversy in communities on the other.   While staff don’t surrender all of their first amendment rights by working for a school district, schools are still able to stop teachers from using their position as a platform for politics, with support from state ethical requirements as well as constitutional case law.   

Free Speech For Me or For Thee? 

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

A Two-Part Test

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

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

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

But Don’t Engage in Viewpoint Discrimination. . .

Let’s assume there’s a situation where the employee is not making the speech as a private citizen, but rather while they are at work (think rainbow flags or bible verses).  This may fail the test above, but it does not give a district carte blanche authority to regulate the speech in any way it wishes.  Most notably we see this come up when Districts have pressure to eliminate certain instances of teacher speech while allowing others.  This is considered “viewpoint discrimination” (i.e. “we are only regulating this speech because we don’t like the opinion”) and is effectively the worst free speech offense a governmental entity can commit.  You can ban all personal decor by teachers in their classrooms, but you can’t ban only decor espousing a certain message.  See United States v. Alvarez, 567 U.S. 709, 752, (2012). 

Changes Coming?

If you’re a nerd like us, you may have been paying attention to the oral arguments this week in Kennedy v. Bremerton School District.  Kennedy was a football coach who would lead players in prayer on the field after games.  The school eventually placed him on leave after he refused to comply with the District’s requests to halt his actions on the field. 

This case may open the door for employees of districts to be more assertive of their first amendment rights.  We’ll be keeping close tabs on this case when the Supreme Court issues its decision.

What Were You Saying About Ethical Regulations? 

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

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

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

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

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

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

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

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

Nebraska’s Political Accountability and Disclosure Act

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

Conclusion

Politics are messy, and schools are already messy enough places without them.  If your district wants to ensure staff stay above the fray at work, make sure you’re consistent in your enforcement. If your district is facing difficult First Amendment issues, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.

Matters of Public Concern: Staff Political Expression and the First Amendment

As societal and political tensions remain high,   Districts have to walk the balance beam of respecting employee first amendment rights on one hand, and avoiding controversy in communities on the other.  Staff don’t surrender all of their first amendment rights by working for a school district, but schools are still able to stop teachers from using their position as a platform for politics, with support from ethical regulations and constitutional case law.     

Free Speech For Me or For Thee?  

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

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

A Two-Part Test

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

To determine whether an employee is speaking as a private citizen, the fact that an employee is at the workplace is not necessarily dispositive.  Instead, the court will look to whether the employee spoke pursuant to their official duties (which is, of course, more likely in the workplace).  

To determine whether an employee is speaking about a matter of public concern, courts look to the “content, form, and context” of the statement, along with the employee’s motive in making the statement.  Connick v. Myers, 461 U.S. 138 (1983).  Speech related to a subject that would be of public concern is not protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest. 

But Don’t Engage in Viewpoint Discrimination . . .  

Ok, so let’s assume there’s a situation where the employee is not making the speech as a private citizen, but rather while they are at work (think rainbow flags or bible verses).  This may fail the test above, but it does not give a district carte blanche authority to regulate the speech in any way it wishes.  Most notably we see this come up when Districts have pressure to eliminate certain instances of teacher speech while allowing others.  This is considered “viewpoint discrimination” (i.e. “we are only regulating this speech because we don’t like the opinion”) and is effectively the worst free speech offense a governmental entity can commit.  You can ban all personal decor by teachers in their classrooms, but you can’t ban only decor espousing a certain message.  See United States v. Alvarez, 567 U.S. 709, 752, (2012).  

Changes Coming?

If you’re a nerd like us, you may have been paying attention to the oral arguments this week in Kennedy v. Bremerton School District.  Kennedy was a football coach who would lead players in prayer on the field after games.  The school eventually placed him on leave after he refused to comply with the District’s requests to halt his actions on the field. 

This case may open the door for employees of districts to be more assertive of their first amendment rights.  We’ll be keeping close tabs on this case when the Supreme Court issues its decision. 

What Were You Saying About Ethical Regulations?

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

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

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

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

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

Conclusion
Politics are messy, and schools are already messy enough places without them. If your district wants to ensure staff stay above the fray at work, make sure you’re consistent in your enforcement. If your district is facing difficult First Amendment issues, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.

Good Friday 2022 Q&A

Q: What is the deadline for telling probationary teachers in Nebraska that we are not renewing their contract?

A: April 15

Q: What is the deadline for telling tenured teachers in Nebraska that we are terminating their contracts?

A: April 15

Q: What is the deadline for issuing notice of reduction in force to teachers in Nebraska?

A: April 15

Q: Are you saying April 15 is an important deadline for Nebraska school districts?

A: April 15 is THE deadline by which school administrators must decide whether they want to proceed with the non-renewal or termination of a certificated employee's contract.  

Q: Are teachers obligated by the April 15 deadline as well?

A: Yes.  This is a mutual deadline between districts and their certificated staff.  The Professional Practices Committee and the Nebraska Commissioner of Education have determined that teachers are contractually obligated for the following school year after April 15, unless:

1. The teacher has submitted a resignation prior to April 15, or

2. The board, through policy or provision in its negotiated agreement has agreed to release teachers through a later date.  

Q: Doesn’t April 15 fall on Good Friday this year?  What if we don’t have school?

A: Yes, April 15 falls on Good Friday this year.  Practically, that means your deadline this year may be April 13 or April 14, depending on your school calendar.  The fact that you do not have school on April 15 will not extend your deadline.

Q: What happens if I do nothing? 

A: If you do nothing, all principal and teacher contracts automatically renew.  Unless staff members receive notice on or before April 15 that the board will consider non-renewing, terminating, or amending their contracts, they stay on their current contract.  Please note: this also applies to reductions in force. 

Q: What happens if I miss the deadline?

A: The employment contract renews.  The Nebraska Supreme Court has held that notice even one day late is insufficient notice under the law.  Bentley v. School District No. 25 of Custer County, 255 Neb. 404 (1998),

Q: What about March 15th?

A: What about it?
Q: There’s something about March 15th…

A: Yes, but it’s not a deadline.  Teachers cannot be required to sign a renewal agreement or contract before March 15th.  So think of March 15 as a floor, and April 15 as a ceiling.   

Q: What if I’m not sure about a staff member, or not sure how to issue a notice of non-renewal, termination or cancellation?

A: If you have any questions or reservations about a teacher's continued employment, we recommend that you consult with your favorite KSB attorney by calling 402-804-8000 or emailing us at ksb@ksbschoollaw.com.         

Q: Which member of the KSB crew can eat the most saucy nugs in one sitting?

A:This is the subject of an unwise bet on Bobby’s part. A challenge will be completed soon. The smart money is on our law clerk, Aaron, with Ashley as a dark horse (sorry, Bobby and Jordan!)

Board Meetings Gone Wild

We’ve all been in heated meetings in which board members vehemently disagree with one another.  What happens if the heat doesn’t dissipate when the meeting ends?  Does a school board violate the First Amendment if it censures an unruly member?  Last week, the Supreme Court answered no.  Under this new case,  federal law allows such censure of a board member when he engages in conduct that disrupts the efficient operation of the board. 

Don’t Be This Guy. . .

David Wilson served on the Houston Community College System Board of Trustees.  In 2017, the board adopted a censure motion chastising Wilson for acting in a manner “not consistent with the best interests of the College or the Board, and in violation of the Board Bylaws Code of Conduct.”  Prior to the censure motion, Wilson voiced his concerns about the board through:

• Publicizing funding complaints;

• Robocalls;

• A radio interview;

• Lawsuits;

• Hiring a private investigator to confirm another board member resided in the district; and

• Maintaining a website stating his concerns that the board was not acting in the best interest of HCC.

The censure resolution called for Wilson to “immediately cease and desist from all inappropriate conduct” and stated, “any repeat of improper behavior by Mr. Wilson will constitute grounds for further disciplinary action by the Board.”

Wilson sued on the ground that the censure violated his First Amendment rights.  On March 24, 2022, the Supreme Court unanimously held that the First Amendment does not restrict the authority of an elected body to issue a censure resolution in response to a member’s speech.

What Does This Mean For You? 

In determining that Wilson lacked a cognizable First Amendment claim, the Supreme Court focused on two main considerations. 

1. First, the Court noted that elected bodies from the local level all the way up to Congress have long exercised the power to censure their members. 

2. Second, for Wilson’s First Amendment retaliation claim to succeed, he would have had to show materially adverse action that would not have been taken absent retaliatory motive.

Translation: Censure is a common way for boards to deal with member misbehavior.  Instead of being a materially adverse retaliatory action, the HCC Board’s verbal censure was an exercise of its own freedom of speech.

“Our Case is a Narrow One”

The Supreme Court’s ruling only applies to the censure of one member of an elected body by the other members. Censure alone, without expulsion, exclusion, or any other punishment, does not violate the First Amendment.  However, if a board were to include additional punishments along with the censure, or were to censure someone outside of the board, it may be subject to a First Amendment retaliation claim.  To that end, the Court noted that boards should not feel free to similarly censure students or employees without risking a First Amendment violation.  The ruling only applies to board members.  

Conclusion

With the Supreme Court taking an interest in closely scrutinizing the First Amendment doctrines most relevant to schools, we understand that these issues have only gotten more pressing and confusing.  If your board or district is facing difficult First Amendment issues, don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000.

To Graduate or not to Graduate: New Rule Attempts to Clear Up Confusion on Special Education Students and Diplomas

Spring is in the air: crocus and daffodils are starting to sprout; children (and their parents) are grumpy while adjusting to daylight savings time; and IEP teams are struggling with the decision about whether a high school senior with an IEP should graduate with a regular diploma or continue to receive services for a 13th year.  The issue is so fraught that even local media have picked up on the issue.  For better or for worse, IEP teams will have more clear rules to follow if the South Dakota Department of Education’s proposed rule changes are adopted.  These rules make fundamental changes to graduation decisions for special education students.  Read on to discover the answers to the questions that both general educators and special education professionals will need to know about the new rule.  (Click here if you are wondering why the Department is proposing these changes.) 

1. Can the IEP Team Decide to Grant a Student a Diploma if the Student Has Not Met State Graduation Requirements?  

In a word? No. The new rule makes it absolutely clear that a school district does not have the discretion to grant a student a diploma unless that student has met the state required graduation requirements. The new rule expressly eliminates the IEP team’s previous discretion to “modify specific units of credit.”  Simply put, under the new rules, the credits are the credits and deviations from those jeopardize the student’s ability to receive a high school diploma. 

2. What can IEP teams do to ensure they are only changing the student’s diploma track if that is what is best for the student?  

Students who receive “accommodations” are still eligible to graduate with a regular diploma.  Students who receive “modifications” likely are not.  Guidance from the Department states that accommodations are efforts educators make to assist a student in mastering the same content that typically-developing students master.  Alternatively, modifications excuse students from learning some of the actual material or demonstrating some of the skills that typically-developing students are expected to learn as a condition of receiving a high school diploma.  Students who receive “accommodations” but otherwise master the curriculum’s content, may receive a regular diploma. So, when the team is discussing how to best offer specially designed instruction to a special education student, be mindful of whether a student could be successful with accommodations if it is important for the student to graduate with his or her cadre.

Districts should note the progress goals of an IEP may not necessarily coincide with graduation requirements, so IEP teams should be careful when drafting the IEP to ensure credit is given when it is appropriate for the student.  The new rules spell this out, as they require schools to notify parents if an alternative assessment could impact the student’s right to a diploma.  Teams should keep in mind the lessons from the Endrew F. case that IEPs are not form documents, and that parents can still challenge team decisions on grade level advancement or conferring course credit when they believe it has ultimately denied the student a “free appropriate public education.”  

3. What if Our Local District Has Higher Graduation Requirements Than Those Set by the State? 

If the board chooses, it can modify its policy to allow for graduation with the state minimums under specific circumstances.   Department staff take the position that if the district has a clear policy in place regarding the procedures for such a waiver for all students, and does not just waive the requirements for individual students on an ad hoc basis.  If you subscribe to the KSB Policy Service, you will receive a sample policy waiving local graduation requirements in our May updates.  If you are not a KSB Policy Service subscriber, reach out to us if you would like assistance in drafting or revising your local policy. 

4. What’s the biggest takeaway?  

Minimum graduation requirements in South Dakota are not fluid.  IEP teams should be thinking about the consequences of implementing a modification, because it could result in the student not earning a diploma.  All teams should be trained on and aware of these issues, especially during the transition process when teams consider post-secondary goals and student needs.

Please reach out to anyone at KSB if you have any questions. You can e-mail us at ksb@ksbschoollaw.com or call the main office number 402-804-8000.

Who Wants to be A Millionaire?! Selling Teacher Produced Resources under the Copyright Act

Late last month, Teachers Pay Teachers (TPT), was in the news with the release of its February 2022 State of Education Report.  In that report, TPT noted that it has developed “a global community of over 7 million teachers, including more than 85% of PreK-12 teachers in the U.S.”  However, before distributing materials on this and similar sites, teachers should know they may not have the right to do so, even in the works they create.

The 1976 Copyright Act and Works Made for Hire

Under the 1976 Copyright Act, the person that creates a work is generally considered the author and copyright owner.  However, there is an exception to this general rule for works made for hire.  Importantly, all works “prepared by an employee within the scope of his or her employment” are works made for hire under the Copyright Act.  For works made for hire, the employer is the owner of the copyright unless both parties involved have signed a written agreement to the contrary. 17 U.S.C. § 201(b). The rationale behind the “works made for hire” doctrine is that when an employer hires an employee to create a copyrightable work, the fruits of the employee’s endeavors properly belong to the employer.

This means that a teacher does not own the copyright of any materials he or she prepares within the scope of his or her employment with the district, unless there is a written agreement between the parties to the contrary.  While the work for hire analysis can be complicated in some situations, it is usually quite straightforward regarding most materials that coaches and teachers create.  Generally, the lesson plans, course materials, tests, and quizzes that a teacher creates are works made for hire.  See Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 F.3d 177 (2nd Cir. 2004) (holding that lesson plans and other teaching materials produced by a teacher were the property of the employer school district, and noting that the broad nature of a teacher’s employment responsibilities causes most materials a teacher will produce to fall within the scope of a work made for hire.) Similarly, the plays, gameplans, and scouting reports created by coaches within the scope of their position will also be works made for hire.

Relevantly, the copyright owner of a work has the exclusive rights to: reproduce and make copies of the original work; prepare derivative works based upon the original work; and distribute copies of the original work to the public by sale, transfer, rental, lease, or lending.  17 U.S.C. § 106.

But Isn’t There a Teacher Exception?

Prior to the 1976 Copyright Act, some courts found there was an exception to the usual works made for hire doctrine of copyright law when academic materials were produced by those employed by schools.  However, this exception was not included in the Copyright Act, and several courts have held that the “teacher exception” did not survive the legislation.  

Mo’ Money Mo’ Problems

When a work falls within the definition of a work made for hire, copyright interests vest in the employer.  This means that schools maintain the exclusive rights to most materials teachers prepare, and that only the school district may reproduce or distribute the materials.  As a result, unless the educator has a written agreement with their employer stating otherwise, the educator cannot sell or share the course materials, lesson plans, or related works they create.  To do so would constitute copyright infringement and expose the teacher to liability to their employer which could recover the money derived from selling or sharing the work or statutory damages.  This is why most school boards have a policy on how and when materials owned by the district can be shared (such as with ESU workgroups).

Plenty of Risk to Go Around

Not only are educators at risk if they attempt to sell or share resources they do not have rights to, but educators infringe on a copyright when they copy, reproduce, or distribute works they receive from a source without proper distribution rights.  Educators also infringe on a copyright when they exceed the scope of the license they receive from a bona fide seller, like a textbook provider.  We recommend any users of these educational resource providers carefully review the agreements and representations associated with the service, and take steps to ensure they are receiving materials from reputable sources with appropriate distribution rights. 

Hopefully, this information didn’t put too large of a dent in your retirement plan.  If your school has any questions about copyright issues, or something more fun, please don’t hesitate to send us an email at ksb@ksbschoollaw.com, or call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000.

Toto, I’ve a Feeling We’re Not in South Dakota Anymore: When national legislation trends find their way to our own backyard!

Every year South Dakota schools get to hold their collective breath in the late winter as the legislative session plays out.  Last year we all anxiously awaited the results of the homeschool and transgender sports participation legislation.  This year set a record for the most bills introduced in South Dakota history, giving schools even more reason to take some deep breaths.  A significant number of these bills saw support from out-of-state individuals and organizations.  Once these out-of-state proponents leave, schools are the ones left grappling with the consequences and challenges associated with implementing the new legislation each July. 

So where are we at, halfway through this session?  Basically, one significant bill has already been signed into law, and several bills that saw significant resistance from educators failed.  However, quite a few bills remain that schools should keep an eye on for potential impacts to education in South Dakota. 

What has passed (so far):

SB 46 ”Protect Fairness in Women’s Sports” - This is the transgender sports participation bill.  It requires schools to designate every sport as either “Male,” “Female,” or “Coeducational or mixed.”  It prevents any student other than those whose birth certificate indicates female from playing in sports designated as female.  KSB will follow up with the legal implications of this bill in a future blog post.  This is the first impactful education bill that has already made its way through the full process, but we are almost certain it will not be the last.

What has failed:

• HB 1015 would have required a moment of silence at the start of every school day.  Despite gathering some attention, the bill did not make it out of committee. 

• HB 1172 would have allowed teachers to help students evaluate the “strengths and weaknesses of scientific information.”  It failed on the House floor. 

• HB 1111 would have created a right to refer school board health actions to a public vote.  The House Education Committee killed the bill. 

• HB 1216 would have removed collective bargaining rights from teachers but was met with a significant amount of controversy, and the bill’s prime sponsor withdrew it. 

• HB 1265 and HB 1266 would have increased the credits of government required for graduation, but both were tabled by the sponsor. 

What remains:

• HB 1198 would require the display of the state motto in schools.  It has passed through the House and will be considered by the Senate. 

• HB 1185 would permit beaded graduation caps as well as feathers at graduation by Native American students.  The bill has passed the House and will be considered by the Senate. 

• HB 1246 would “establish the fundamental right of a parent.”  This bill is intended to codify US Supreme Court precedents  regarding the rights of parents, but its language is broad and could reach further than the relevant facts in those cases. 

• HB 1308 would allow schools to provide bonuses to any staff member without having to go through the collective bargaining process.  Previously, the law only allowed this explicitly for teachers.  The bill has not come before a committee. 

• HB 1310 would require the extensive public display of all training, curriculum, and instructional materials and would provide patrons an avenue for a lawsuit if they think the law has been violated.  Successful litigants could recover their attorneys’ fees.  The bill is set for committee hearing next week. 

• HB 1337 is effectively the “Critical Race Theory” bill.  It would take away substantial control from school districts in determining curriculum and is opposed by the ASBSD, SASD, and SDEA.  It awaits a vote on the House floor. 

• SB 139 creates “community-based” schools using state funds.  The bill effectively creates multiple charter schools on reservations in the state.  It awaits hearing in the House after passing through the Senate. 

There are many other bills introduced that may impact schools, most of which concern funding. The highlighted bills above are where we think schools will need to pay the most attention for purposes of legal compliance and policy updates and implementation.  If you have any questions on what is going on in Pierre, feel free to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000, or email all of us using ksb@ksbschoollaw.com!

Surety Bonds? Blanket Bonds? Fidelity Bonds? What’s with All the Bonds???

We have had several clients report that they have received requests under Nebraska’s Public Records Act from people seeking a long list of various types of bonds and insurance policies.  The letters are based on a suggested format from a national website. 

Do Not Panic.   Despite the fact that the letters refer to two Nebraska statutes, the letters also request numerous documents which Nebraska school districts are not required to have.  If you look down the list of requested documents and you know that you do not possess many of these documents, that does not mean that your district has done anything wrong.

Call Your Lawyer.  As we noted above, these letters are based on samples from a nationwide website that mixes and matches laws from numerous states as well as federal and even international law.  We think most public records requests can be handled locally.  However, we believe this specific request will likely require you to get help from your school district’s attorney to formulate a compliant response.    

Response Within Four Business Days.   The Public Records Act states that if the entire request cannot with reasonable good faith efforts be fulfilled within four business days “due to the significant difficulty or the extensiveness of the request,” you can instead communicate back to the requester.  That communication should include a written explanation of why, including the earliest practicable date for fulfilling the request, an estimate of the expected cost of any copies, and an opportunity for the requester to modify or prioritize the items within the request.

Fees for Gathering and Copying These Documents.  As we read these requests, we believe it is highly possible that you will have to expend significant staff time in responding to these requests. Nebraska law allows you to charge for staff time in responding to public records requests after the first four hours.  Neb. Rev. Stat. § 84-712(3)(c).  Alternatively, if you have to pay a third party to find and produce documents, you can charge for all of that additional expense.  You may also charge a fee for your actual costs (e.g. copying, printing, computer analysis) in responding.  You are, however, prohibited from charging the requester for the cost of your attorney reviewing the public records response.  

Deposit.  You may request a deposit prior to producing the records if you reasonably calculate that the total fee (including copying, staff, and contractor costs) for providing the records would exceed $50.00.  The person making the request will then have 10 days either to narrow the scope of the request or to provide you with the requested deposit.

And one more thing . . . Although these public records requests will require time and effort to respond, we want the education community to be cautious in the conversations we have about them. The public policy of our state gives people the right to request these documents. We certainly do not want to discourage school district patrons from being interested in the operation of their local schools. We also want to make sure that schools scrupulously comply with the letter of the law in responding to these requests. If you have any questions or concerns about navigating requests under Nebraska’s Public Records Act, feel free to call Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or email all of us using ksb@ksbschoollaw.com.

All’s Fair in Food and FERPA: What, exactly, is directory information?

At KSB, we recommend sharing wings, pretzel bites, and queso with the table.  We only share beer with those we love.  We advise sharing students’ personally identifiable information (“PII”) with no one.  But is there any time when PII is as shareable as cheese curds?  You bet.  Today’s post gives you a taste for a key ingredient of the Family Educational Rights and Privacy Act (“FERPA”) - the directory information exception. 

While schools must obtain prior written consent from a parent before releasing most PII, directory information may be released without consent under certain conditions.  The most important condition is that you have a policy outlining your approach to directory information.  But we’re getting ahead of ourselves…

What is directory information? 

The FERPA regulations define directory information as information contained in an education record that would not generally be considered harmful or an invasion of privacy if disclosed.  If you’re anything like us, “would not generally be considered” are five of the worst words in the English language when federal funding is at stake.  Unless the Department of Education wants administrators to be stingier with PII than Steve Williams is with his lava cake, let’s reduce the ambiguity please.  Thankfully, the Department of Education is kind enough to specify the following PII as directory information:

• Names

• Addresses

• Telephone listings

• Email addresses

• Photographs

• Dates and places of birth

• Major fields of study

• Grade level

• Enrollment status

• Dates of attendance

• Participation in officially recognized activities and sports

• Weight and height of members of athletic teams

• Degrees, honors, and awards received

• The most recent educational agency or institution attended.

On the other hand, social security numbers are never directory information.  Likewise, be cautious with student ID numbers.  We recommend sticking to the list above.  If you have a unique issue, it is best to discuss it with your school lawyer. 

Let’s return to that important condition that must be met before you can release directory information without prior written consent…  

When can you share directory information?

Remember when your mom made brownies, but you had to ask your dad if he wanted to keep them before bringing them to your friend’s party?  That’s how we think of the directory information exception.  The most important condition you must meet before sharing directory information is giving parents public notice of your policy on the disclosure of such information.  Unless the student is 18, the parents own student PII.  If dad wants to keep all 14 brownies home, they will never see the light of day.  If mom or dad wants to keep the middle pieces, your friend Suzie can only have an overbaked corner and a chipped tooth.

It’s the same way with directory information.  First, your policy must describe what types of PII you have designated as directory information.  Next, the policy must state that parents can opt out of the disclosure of directory information.  This part can be confusing.  Parents have a right to opt out of disclosure of “any and all” directory information.  Some schools choose to allow opt-outs from specific categories of directory information. For example, under the “buffet” approach mom and dad may allow you to share Billy’s name but not his address.  Other schools take the position that if a parent opts out of any directory information, they are treated as having opted out of all of it.  Still other schools have “opt in” procedures, rather than opt out procedures, which require the parents to consent in advance to sharing of any directory information.  We strongly discourage our client schools from using an opt in system.  It’s hard enough to keep track of who can be in what class photo when parents opt out.  We don’t think you should make it even harder to take the football and volleyball team photos in August by having to wait until every parent signs a consent form.

For schools that allow parents to opt out of disclosure of directory information by category, note that there is an additional limit to a parent’s control.  If a parent wants Henry’s name on the football roster, the honor roll, and in the yearbook without having to give prior written consent, then that parent must allow you to consider Henry’s name directory information.  We like the all in or all out system rather than a piecemeal, but for schools who allow parents to opt out of certain categories, they cannot limit recipients within a category.  A parent cannot opt out of only a single medium, such as the local paper with the pesky reporter who said number 12 threw a bad interception.  

Finally, the policy must specify the period within which a parent has to notify you in writing that he or she does not want directory information about their student disclosed.  Obviously this only applies to schools using an opt out system for directory information.  In short, parents have the right to opt out of any PII being disclosed as directory information for their student.  If they opt out, then you cannot release that directory information unless you have prior written consent from the parent. 

Remembering the difference between Steve’s lava cake and shareable cheese curds. 

Your instinct is to lock up your students’ PII and label it Fort Knox.  That is not necessary with directory information.  Whenever you have a question about releasing PII, ask yourself:

• Is it considered by the Department of Education to be directory information? 

• Is it listed in your policy as directory information?

• Have you distributed your policy to parents, clearly communicated the opportunity to opt out (or in…sigh…), and included the time in which the opt out (or in) must occur?  

• Have the student’s parents opted out of the type of directory information in question? 

Maintaining good records is your first defense against a FERPA complaint.  If you have questions about what you should include in your directory information policy or are worried about a particular information release, don’t hesitate to call Karen, Steve, Bobby, Coady, Tyler, Jordan, or Sara at (402) 804-8000, or shoot all of us an e-mail at ksb@ksbschoollaw.com.

Judicial Review

Late last year, we blogged about the vaccine mandates promulgated by the Biden Administration.  At that time, we explained that the mandates, if implemented, would have a limited effect on schools in South Dakota and Nebraska, and would primarily impact Head Start employees.  Since then, a series of lawsuits have been filed challenging the enforcement of these mandates, and it’s been an effort in futility to keep track of whether (or not) these mandates would even become effective.  The Supreme Court ultimately heard two of these lawsuits.  In opinions issued on Thursday, January 13, the Supreme Court allowed enforcement of the vaccination requirements applicable to employees of Medicaid and Medicare funding recipients.  In the second opinion, the Supreme Court blocked the OSHA vaccination requirements applicable to covered employers.  

You Win Some. . .  You Lose Some. . .

The Supreme Court issued rulings in National Federation of Independent Business (NFIB) v. Department of Labor, Occupational Safety and Health Administration, 595 U.S. ____ (2022), and Biden v. Missouri, 595 U.S. ____ (2022).  

In NFIB, plaintiff’s challenged OSHA’s emergency rule that required employees of most large employers (not including public schools in NE and SD) to either be vaccinated or submit to weekly COVID testing.  The Court ruled in favor of the plaintiffs and issued an injunction barring OSHA from enforcing the rule during the pendency of further proceedings.  The Court found that OSHA likely lacks the authority to take such an expansive, far-reaching measure affecting 84 million workers without clear and obvious statutory authority conferred by the legislature.  

In Biden v. Missouri, the Court upheld the Biden Administration’s authority to impose a vaccination requirement on employees of Medicaid and Medicare funding recipients.  According to the Court, the statutes establishing the Medicare and Medicaid programs clearly granted the Secretary of Health and Human Services the authority to regulate and establish standards applicable to recipients of Medicare and Medicaid funds, and a COVID-19 vaccine requirement was similar to prior exercises of that authority.

What About Head Start?

For 24 states, including South Dakota and Nebraska, the vaccination mandate requiring Head Start employees to be vaccinated against COVID-19 is also on hold pending further litigation.  These states convinced a federal judge that the Biden Administration exceeded its authority in issuing a final rule requiring that all Head Start employees and contractors serving students and families be vaccinated.  This decision is pending appeal and could also be brought before the Supreme Court.

Stay Tuned. . . 

Although a couple battles were won and lost this week, the wars are far from over.  We anticipate that litigation over these vaccination mandates will continue well into the new year.  Stay tuned, and we’ll keep you updated on what you need to know about these lawsuits.  In the meantime, if you have any questions or concerns about navigating the new year, feel free to call Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or email all of us using ksb@ksbschoollaw.com. 

KSB Welcomes Sara Hento!

KSB is delighted to announce that Sara Hento will be joining the office on January 3rd, 2022. Sara is originally from West Point, NE and graduated from the University of South Dakota School of Law. She has spent the last five years as the Business Official of Avon Public Schools in Avon, SD.

Sara is a long time member of the education community. She has attended the School Law Seminar for many years and has been an active member of the South Dakota Association of School Business Officials.

Sara is licensed in both Nebraska and South Dakota and will be working with clients from both states.

Ho Ho HOLD UP! More Changes to Title IX on the Way?!

On December 10, 2021, the U.S. Department of Education announced its intention to amend the Title IX regulations and issue notice of the proposed changes by April 2022.   Although the DOE did not state explicitly how it plans to amend the regulations, the announcement did include several clues about what direction the Administration intends to take with the new regulations.

First, the announcement indicates that the Department plans to revise the “sexual harassment” regulations that were promulgated under the Trump administration in August of 2020. However, it is pretty clear that the Biden administration does not intend to scrap these new procedures entirely.  We do NOT anticipate much changing in terms of the need for separate investigators and decisionmakers or in terms of changes to the structure of the investigations themselves. Instead, we are speculating that the Department will provide additional protections for complainants, or changes to the definitions of “sex harassment” to broaden out the type of conduct that would be covered by the 2020 regs. 

In addition, the Department seems intent on adding regulations that explicitly state that LGBTQIA+ students have protections under Title IX based solely on their sexual orientation and/or gender identity.  These regulations could also bring long-awaited clarity to complex issues related to the involvement of transgender students in interscholastic athletics and requests from transgender students to utilize the sex segregated facilities consistent with their gender identity.  

Importantly, nothing in any of these recent announcements indicates that the Biden Administration simply intends to repeal the 2020 regulations.  In other words, those changes (and their training requirements) are here to stay—likely with some updates, once the powers that be choose to . . . you know . . . actually share what the substance of the changes will be.

In the meantime, if you have any questions about Title IX, the current regulatory requirements, or the status of the law applicable to accommodation requests or discrimination claims of LGBTQ+ students, please don’t hesitate to call Karen, Steve, Bobby, Coady, Tyler, or Jordan at 402-804-8000, or e-mail us all at ksb@ksbschoollaw.com.

Board (Bored?) Reminders

By now, you should be used to getting end of the year updates and reminders from us; whether it's a reminder to evaluate your probationary employees by the end of the semester, or to meet your PPACA reporting obligations, we just can’t help ourselves.  In fact, we blogged about several reminders already this week!  Now, we’re back with a couple (I promise, quick) reminders for your upcoming board meeting.

Review Your “Safe Return” and “ARP ESSER” Plans

Remember this spring and summer when everyone was scrambling to put together your “Safe Return” and “ARP ESSER” plans?  Feels like 5 years ago, right?  

The rules around both plans require them to be reviewed “at least every 6 months.”  You have very likely reviewed and possibly amended your ARP ESSER plan (where you explain how you plan to spend the ESSER III money) since this summer, but you may not have reviewed your Safe Return plan since beginning school.  

This is a reminder that you must review both at least every 6 months.  And, in the event you may make changes to either plan, keep in mind that you must seek public and stakeholder input prior to making any changes.  You may want to consider putting a review of both plans on your December or January board agendas.  If you do think changes are needed, you can solicit feedback between meetings and approve changes at your next meeting, if needed.

Don’t Forget Your Superintendent Pay Transparency Act Obligations

For many schools, the superintendent’s contract is a topic of discussion at the December board meeting.  Before you have those discussions, it’s important to remember the obligations imposed by the Superintendent Pay Transparency Act (SPTA).  

At least three days before any board meeting where a proposed superintendent contract or contract amendment is considered or approved, the board must publish:

• a copy of the proposed contract or amendment;

• a reasonable estimate and description of all current and future costs to the school district if the proposed contract or amendment were approved; and

• the date, time, and place of the public meeting at which the proposed contract or amendment will be considered.

Within two days after the board approves a contract for future services, the board must publish:

• a copy of the approved contract; and

• A description of all current and future costs that will be incurred as a result of the contract.

The SPTA specifically envisions that each of these publications will be on the website of the school district, with a “prominently displayed” link and access to the entire contract document at issue.

Conclusion

After a slate of far too eventful board meetings in 2021, we hope your board meetings will quickly return to the boring old norm.  Either way, if you need help planning for, running, or recovering from a board meeting, don’t hesitate to call Karen, Steve, Bobby, Coady, Tyler, or Jordan at 402-804-8000, or e-mail us all at ksb@ksbschoollaw.com

Spread Good Cheer and Legal Compliance All Season Long: KSB’s List of Topics to Remember this December!

You might not know it by looking outside, but Mariah Carey is back on the radio and that means winter break is right around the corner.  As the semester draws to a close we wanted to help you prepare for the holidays with some timely reminders and updates.

Bah Humbug 

As you plan your Christmas, er, I mean Winter Holiday Concerts and Programs, it's important to ensure that your activity doesn’t impermissibly endorse religion, coerce the audience and students to conform to a religion, or serve an unlawful religious purpose. 

In Freedom from Religion Found., Inc. v. Concord Cmty. Schools, the Seventh Circuit closely examined a school district’s “Christmas Spectacular” programs.  The school’s original Christmas program, which it staged for decades prior, focused on the story and birth of Jesus “to the point that it was hard to distinguish it from many Christmas Eve church services.” This program was found to be in violation of the Establishment Clause of the First Amendment, and the school was prohibited from performing it.  According to the court, “a religious purpose cannot be the primary motivation” for a public school program or activity.

In response, the school made several changes to the program. “Ani Ma’amin” and “Harambee” were added to recognize and celebrate Hanukkah and Kwanzaa. The nativity scene was shortened from twenty minutes to two minutes.  Students were no longer asked and/or required to play characters in the nativity, and a reading from the New Testament was taken out.  With these changes, the Seventh Circuit determined that the program no longer violated the Establishment Clause, because it was not “ratifying a religious message.”

A Lump of Coal for Schools with Head Start Programs 

On November 30, the U.S. Department of Health and Human Services (HHS) issued a requirement requiring all Head Start programs to mandate universal masking for everyone over the age of 2 within their programs.  This requirement became effective immediately, which means all schools with Head Start programs must mandate masking for students and staff in Head Start.

Head Start employees must be vaccinated by January 31, 2022. This means staff, contractors, and volunteers who are assigned to work in the Head Start program must have their second dose in a two-dose series or first in a single-dose series by January 31, 2022. Head Start programs may allow exemptions to the vaccination requirement for those who cannot be vaccinated due to medical conditions or religious beliefs, practices, or observances. For those granted a vaccine exemption, there will be a weekly testing requirement. Without an approved vaccine exemption, there is no option for testing in lieu of receiving the vaccine.  You can read the full announcement in the Federal Register here. 

Employing Ebenezer 

The stress of the holiday season takes its toll on the best of us, and we recognize that this stressful season caps off a difficult year for school employees.  Add in a little extra free time, some overexposure to (totally normal) family, and New Year’s Eve festivities, and the result can be social media posts or other forms of speech that cross the line of protected First Amendment activity.  As a result, it's important that school employees go into their break with a reminder of when speech is, and when speech isn’t, protected.

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

To determine whether an employee is speaking as a private citizen, the fact that an employee is on break is not necessarily dispositive.  Instead, the court will look to whether the employee spoke pursuant to their official duties (which is, of course, less likely while on break).  However, posts from an account that is connected to the staff member’s duties or that are considered District property are less likely to be considered to have been made by a private citizen.

To determine whether an employee is speaking about a matter of public concern, courts look at the “content, form, and context” of the statement, along with the employee’s motive in making the statement.  Connick v. Myers, 461 U.S. 138 (1983).  Speech related to a subject that would be of public concern is not protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest.  

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

Finally, it is important to remember that the First Amendment protects speech and expressive conduct that is considered speech.  It does not protect non-expressive conduct, such as driving under the influence or unlawful interactions with minors.

Holiday Cards 

PPACA/Obamacare reporting is like holiday cards; you hate it but know you have to do it every year.  With the ides of December upon us, it’s time again to think about your 2021 PPACA reporting obligations (1094 and 1095 forms) for “applicable large employers” (ALE’s).  In case you’ve forgotten, an ALE is any employer that employs 50 or more FT + FTE employees, on average, per month of the preceding (2020) calendar year.  If you’re not sure if you’re an ALE, ask your business manager or contact your school attorney.

For any school ALE, you are required to submit one form to each of your full-time employees (typically the 1095-C) and one transmittal form plus a copy of each employee’s form to the IRS (typically the 1094-C).  This annual reporting is important.  It is required by the law, but it is also used to judge your compliance with PPACA as a school--meaning possible tax penalties if you’re out of compliance.  Whether you’re experienced in PPACA reporting or new to your position, you can sign up for KSB’s annual PPACA Reporting Webinar here. The webinar will stream live on Wednesday, December 15 from 9-12 central, and a recording will be available on demand after.

Help Wanted 

KSB is now hiring for the position of coal miner.  Qualified candidates will have 50+ years of experience and will be capable of filling Steve’s stocking by Christmas Eve.  Please submit applications to shariclaus@ksbnorthpole.com.  KSB North Pole is an Equal Inopportunity Employer.

Conclusion

We know what a busy time of year this is for schools, and how taxing the semester was with staff shortages and an overly active contingent of CAVE (citizens against virtually everything) members.  If you have any questions about, or need any assistance in, closing out the semester you should call Karen, Steve, Bobby, Coady, Tyler, or Jordan at 402-804-8000, or e-mail us all at ksb@ksbschoollaw.com.

They Listened! Department of Education Softens Restrictions on Long-Term Substitutes

In December of last year, the SD Department of Education changed the definition of what it means to be a “long-term substitute.”  Under the new rule, any educator who taught for longer than six weeks would no longer be a “substitute,” but would effectively become a “teacher” and would therefore have to be certified.  The Department’s stated goals were understandable--ensuring students are taught by certified staff as often as possible.  However, finding substitutes was already highly difficult for South Dakota schools, and this rule made it even more onerous to find substitutes for the times schools need them the most. 

Fortunately, the Department has listened to some of the ideas of stakeholders in the state, and began the process of pulling back their new rule in fall of this year.  The updated rule cleared its last hurdle recently, when the legislative committee approved it on November 15.  The updated rule will take effect on December 7. 

So, what does it actually say?! The Department did not undo their more specific definition entirely, but inserted some exceptions for the instances where schools’ need for substitutes most often arises.  The default is that a “long-term” substitute still needs certification, unless one of the following applies:

• The person substitutes for a vacant position for less than 45 cumulative school days while the District tries to find a permanent teacher;

• The person substitutes for a teacher who is on FMLA leave; or

• The person substituting has an inactive certificate. 

Practically speaking, if you have a teacher resign in September, you can have an uncertified person substitute but they cannot do so for more than 45 days.  If a teacher goes on FMLA leave, you can have an uncertified person substitute for the absent teacher however long you need.  (This means that now is a great time to refresh on the FMLA requirements generally and especially for common FMLA uses like maternity/paternity leaves and others.  Look for something discussing common FMLA issues from us soon!)  If a substitute used to be certified but no longer is, you can have them substitute however long you need. 

Again, this rule takes effect December 7, and will hopefully provide some relief for schools desperate for long-term substitutes. Please reach out to Karen, Bobby, Steve, Coady, Jordan, or Tyler with any questions!

Everybody’s Workin’ for the...Retirement System!

Nothing like a good Loverboy song reference to convince you to keep reading!

The Problem

In March of 2020, COVID shut down school districts across Nebraska.  A state statute required that certificated teachers be paid their full teaching contract salaries during the shutdown.  However, school districts took different approaches to paying teachers for extra duty assignments like track, prom and baseball.  Although nearly all districts at the time had divided the extra duty pay for spring activities across all payroll periods, some districts deducted that spring extra duty pay from the spring coaches’ final 2019-20 paychecks.  Those districts reasoned that if the spring sport and/or event did not take place due to the shutdown, the spring coaches and/or sponsors had not earned this extra pay.  Other districts paid their spring coaches/sponsors the same amount that they would have made if the activity had occurred.  These districts reasoned that the spring sponsors had performed some amount of work towards the fulfillment of their coaching/sponsorship duties and that it would be unfair to penalize these employees for the fact that the governor had shut down schools for the spring of 2020.  The teachers’ union, to its credit, did not aggressively battle districts over this issue, reasoning that no one was prepared for the pandemic and that boards were making decisions under the gun with little guidance from the state.  As a result, different districts made different decisions on this issue.

Problems arose when the Nebraska State Auditor of Public Accounts conducted its 2020 annual audit of the Nebraska School Employees’ Retirement System.  The audit team discovered that some schools had made retirement contributions on the extra duty compensation paid to spring coaches/sponsors while other schools did not make those contributions.  This led the audit team to require the retirement system to force schools to keep records to prove on a go-forward basis that coaches/sponsors were actually earning their extra duty pay.  [The legal reasoning behind this new requirement is a complicated combination of interpretations of several statutes and regulations.  NPERS was kind enough to provide us with a summary of the legal reasoning, which you can read here.] 

The Solution that NPERS Proposed

The audit team’s position put NPERS in the unenviable position of trying to meet the new auditor requirements while trying to convince schools to change their long-standing payroll practices.  As a result, NPERS revised its “Manual for Employer Contacts” to add a requirement for schools to track and report coaching and extra duty hours.  It then gave school districts two choices for how to pay coaches/sponsors: 

1. Pay coaches/sponsors their extra duty pay only in the months when the activity or sport takes place; or 

2. Pay coaches/sponsors over 12 months, and then submit an adjustment report at the end of the contract year to move the extra duty wages/hours to the month(s) in which they were actually earned/worked.

Unfortunately, neither of these solutions has been popular with the education community.  Coaches and sponsors are typically learned professionals under the FLSA, meaning they do not have to track their hours under the wage and hour laws.  Most of these employees don’t really want to take the time to track their hours.  Staff also have a strong preference for an even paycheck across all payroll periods.  Similarly, business officials do not like having to recalculate certificated staff paychecks each month and they certainly don’t like having to file adjustment reports for all coaches and sponsors.  (For its part, the retirement system staff is not enthusiastic about processing so many adjustment reports at the end of the school year).  

A Third Option

KSB School Law attorneys reached out to NPERS’ general counsel to see if we could find a way to pay coaches and sponsors over 12 months AND to avoid the tracking of hours.  

NPERS has graciously spent hours working with us to try to find a solution.  Eventually, we landed on a third option for districts to pay extra duty and to report those hours to NPERS.  Districts who want to pay their staff for extra duty over all pay periods without tracking hours may:

1. Adopt a policy that NPERS has approved that articulates the reality that coaches and sponsors work on their extra duty assignment in all months, not just in the months during the season or when the event occurs; and

2. Issue each staff member an extra duty assignment letter that NPERS has approved which reinforces the requirements of the policy. 

Districts that use this approach will not be required to submit any additional documentation to NPERS, absent some other unforeseen event.  This solution can also be used retroactively -- which means districts can adopt this policy and issue this letter now, and be in compliance back to the beginning of the 2021-22 school year. 

A Few Caveats

There are some important details that districts should keep in mind when adopting this solution. 

First, classified staff members who perform extra duties are required by the FLSA to track their hours and to be paid overtime for hours worked over 40.  This policy and assignment letter do nothing to change that.  If you have classified staff who coach for a flat stipend, you should reach out to your school attorney about how to deal with that issue.

Second, this policy can only apply to teachers who are anticipated to work 1,100 hours per contract year in their teaching position not factoring in the extra duty service.  That means a teacher who is less than .7 FTE (including community coaches) will still need to track their hours , because those hours could change either (1) when that part-time teacher could qualify for retirement contributions and accrue hours toward eligibility to full benefits or (2) could increase the service credit going towards their retirement benefit. 

Third, you’ll notice that this policy has extra duty responsibilities beginning the summer before the school year starts.  We know that newly-hired teachers who will coach or sponsor typically begin meeting students and preparing for the school year before their official start date.  Similarly, returning coaches and sponsors take students to camps, go to clinics and do all manner of things to begin preparing for the upcoming year.  The problem is, if that time is credited to the summer AFTER the school year ends, it could delay the date when a coach/sponsor can retire.  That is because the retirement system refers back to prior contract years to determine whether a teacher has worked his/her full contract in the year he/she retires.  Some coaches and sponsors have had their eligibility date delayed by “trailing” extra duty activities.  

Fourth, this policy also seeks to solve the “trailing days” problem that can arise for staff members with extended contract days (typically Ag teachers, staff who work on curriculum, counselors and the like).  Again, if the teacher wants their separation from service to be at the end of the school year when they retire, they will need to perform their extended contract days in advance of the school year to keep in that 12-month contract year cycle.   

Conclusion

If your district has complied with the new NPERS requirements and are content to continue that process, you do not have to make any changes.  However, if your district would like to avoid tracking hours and would like to pay for extra duty over all pay periods, the KSB policy/assignment letter option is now available.  If you are a policy service subscriber, you will receive those documents as part of your subscription.  If your district is not a service subscriber, you can e-mail Ashley at ashley@ksbschoollaw.com to request a copy of those documents.  We are charging $350 for the policy and assignment letter.  If you have any questions about the “extra duty retirement pay” problem, 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.

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.