Hurry Up and Slow Down! An Update on Special Education Policies and Procedures

Last year, the Nebraska Department of Education released updated Guidance regarding the development of local special education policies and procedures.  Since then, we’ve had several schools ask whether they should, shouldn’t, or must update their special education policies and procedures to remain compliant.  As policy season looms, we wanted to get everyone on the same page about where things stand.

Your current special education policies and procedures are (probably) compliant.  

If you subscribe to our policy service or have purchased our special education procedures document, we are delighted to assure you that your current special education procedures are fully compliant with state and federal law.  The Department has confirmed this on numerous occasions since we last updated those policies in 2019.  And there haven’t been any relevant changes to the IDEA or Rule 51 since then.

Additionally, while defending clients from Rule 51 complaints we’ve reviewed the special education policies and procedures produced by the Perry Law Firm and believe they are also compliant.

So, if your school utilizes either of these policies and procedures and has kept them updated, you aren’t required to make any changes at this time.   However, if you hear anything differently from the Department or any other administrative agency, let us know.

So what’s the hubbub about?

The Department’s Guidance not only discussed the minimum requirements for policies and procedures, but also incorporated several suggestions and recommendations that the Department considers best practices.  As a result, unless you compare the Guidance with the text of the IDEA regulations and Rule 51, it can be difficult to distinguish between what is and isn’t required.  To make it even more complex, the recommendations call for the development of materials and resources that don’t look like the “procedures” most school districts are familiar with.  As a result, many in the educational community were concerned about the vast disparity between the (fully compliant) policies and procedures currently in use and the best practices and recommendations of the Department.

What’s wrong with best practices being incorporated into policies and procedures?

Nothing. . . if you live in a perfect world and follow them perfectly. On the other hand, if you incorporate best practices and recommendations into your policies and procedures and can’t adhere to them with complete fidelity, you could be unnecessarily exposing yourself to liability or a finding of noncompliance – even if you fully complied with Rule 51!  Remember, Rule 51 and the IDEA establish the floor for compliance, but you may heighten your obligations through the adoption of local policies and procedures.  As a result, we want to make sure that any policies and procedures are developed mindfully and in recognition of what is, and isn’t, required.

Stay tuned. . .

So, for now, it’s time to hurry up and slow down.  We’re wary that hasty changes to the policies and procedures will make compliance more difficult, rather than less.  We are in the process of working with NDE to create a set of “best practices” resources that we are comfortable providing to districts.  That additional resource will not be required but we are hopeful that it will be useful.  We will let our KSBlog subscribers know once we have these procedures developed and approved by NDE.

In the meantime, if you have any questions, 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.

P.S. Without much fanfare, changes to the transition requirements in Rule 51 were signed by the Governor, approved by the Attorney General, and went into effect on May 17, 2022.  The most up-to-date version of the rule can be accessed here.  Under the new changes, school districts must develop and include transition plans into the IEP of all students “beginning not later than the first IEP to be in effect when the child turns 14.”  This change to Rule 51 was necessary to bring the rule into alignment with the change to state law that the Unicameral made last year. 

P.P.S. We have had several policy service subscribers ask when our 2022 policy updates will be out.  They may be distributed as early as next week, but our hard deadline is that you will have them no later than May 31.  We are excited to show our subscribers the cool new interface that we are launching!  You will also all be THRILLED to know that this year there are not a ton of required updates.  Our policy subscriber webinar is June 9, 2022 at 10:00 a.m. CST.  

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.