E-I-E-I…EO! President Biden’s LGBTQI+ Executive Order

On June 15, 2022, President Biden released an Executive Order (EO) aimed at promoting equality for the LGBTQI+ community by addressing the disparities and barriers these individuals face across many societal contexts.  Specifically, the EO indicates a commitment to strengthening the supports and policies in schools and educational programming for LGBTQI+ students.  

Please note: This EO is NOT what we’ve been talking about regarding new Title IX regulations which, at least as forecast by the administration, could be released by the end of the month.  (Of course, those regulations were originally scheduled to be released in April 2022, so take the anticipated timeline for what it is worth.)  You’ve probably seen the “50 Years of Title IX'' information across social media, so perhaps the timing won’t be a coincidence.  We’ll certainly have an update if/when new Title IX regulations are released, but for now, we want to give you some initial thoughts on this newest EO concerning schools and LGBTQI+ considerations from the administration.

 To get first to what you are all wondering, the EO does not require any action by schools at this time.  Rather, it directs U.S. Secretary of Education Cardona to develop and release “sample policies” to support LGBTQI+ students' well-being and academic success.  The Department of Education is supposed to provide the sample policies within 200 days.  While nothing in the EO changes current laws, we have no doubt the Department of Education will encourage schools to adopt these policies.

 Secretary Cardona must also establish Working Groups regarding LGBTQI+ Students and Families.  These Working Groups will aim to develop and promote “guidance” around issues like bullying and harassment and identify practices to make health and mental health services accessible and inclusive.  There is also a focus on seeking funding opportunities for programming that will aid in improving those educational and health-based outcomes.  Finally, the EO addresses ways to provide more robust support services for LGBTQI+ students experiencing homelessness.

Overall, the EO highlights the administration's continued focus on promoting LGBTQI+ rights across not only the educational sphere but many other aspects of society.  There are no actionable items from the EO for school districts to take at this time, but stay tuned.  You probably recall the series of EO’s President Biden signed upon taking office addressing these issues, and this is another in the line of actions we expected to see form the administration.  Of course, if any new guidance or regulations have requirements for schools, we’ll keep you posted.  In the meantime, if you have any questions, please feel free to contact us at ksb@ksbschoollaw.com or (402) 804-8000.

What’s the Protocol? Parental Requests for Testing Protocols From Special Education Evaluations

We frequently get questions about the rights of parents of special education students to access the prompts, protocols and raw testing data produced by a special education evaluation.  These requests raise concerns that seem much broader than one student’s evaluation; the confidentiality and security of testing protocols is stressed as an essential condition of the test’s continued integrity and validity.  And what about copyright?  Despite these concerns, does the parent have a right to access the protocol?  Does the parent have a right to copy the protocol? Before the assessment is administered, the answer is no; access to testing protocols at that time would undermine the evaluation’s validity. After, the evaluation is complete, though, it depends. . .

Right to Access Education Records

Under both state and federal law, parents have the right to access and inspect the education records maintained regarding their student.  Education records are generally defined as “records, files, documents, and other materials” that “contain information directly related to a student” and are “maintained by an education agency or institution.”  20 U.S.C. § 1232g(a)(4). Similarly, with respect to the records of special education students, the IDEA incorporates this same definition. 

Consequently, whether parents have a right to access and inspect testing protocols under FERPA is dependent upon whether those protocols “contain information directly related to a student” and are “maintained by an education agency or institution.”  In Nebraska, parents have a right to copies of any education records, whereas in South Dakota parents would, at most, have the ability to inspect the records.

If a student’s identifying information and answers are being “maintained” – as that term is defined by district policy – the testing protocols are education records. “A test protocol or question booklet which is separate from the sheet on which a student records answers and which is not personally identifiable to the student would not be a part of his or her ‘education records.’" Letter to Shuster, 108 LRP 2302 (OSEP 2007).

Parental Participation Rights

Even if testing protocols are kept separately from a student’s personally identifiable information (PII) or are not “maintained” by a school district, parents may still have a right to access those protocols in whole or in part in order to understand their student’s records and evaluative results.  

According to the federal Office of Special Education Programs (OSEP):

Part B and FERPA provide that an educational agency or institution shall respond to reasonable requests for explanations and interpretations of education records. Accordingly, if a school were to maintain a copy of a student's test answer sheet (an ‘education record’), the parent would have a right under . . . FERPA to request an explanation and interpretation of the record. The explanation and interpretation by the school could entail showing the parent the test question booklet, reading the questions to the parent, or providing an interpretation for the response in some other adequate manner that would inform the parent.

Id. (Internal citations omitted). 

As a result, if you receive a request for testing protocols it is possible that some or all of that protocol must be provided in an appropriate form.  Ultimately, it depends on what information is necessary and appropriate to explain the student’s education records and facilitate meaningful parental participation.  See, e.g., McKinney Indep. Sch. Dist., 54 IDELR 303 (SEA TX 2010).

But What About Copyright Protections?

I know . . . every time you want to do something fun, we here at KSB stand ready with the Copyright Act of 1976 to tell you to stop. Finally, we’ve come across a scenario where copyright protections seem like they should help you avoid disclosing sensitive testing protocols. Unfortunately, though, this probably isn’t the case.

With respect to requests for records under the IDEA and FERPA, the Department of Education has noted that “federal copyright law generally should not be implicated” because the requests “generally do not require the distribution of copies of an education record, but rather parental access to inspect and review.”  However, unlike FERPA and the IDEA, some states like Nebraska provide that parents also have a right to copies of education records. 

While Nebraska courts have not yet addressed the issue, at least one court has indicated that providing copies of testing protocol that qualify as education records, as required by section 79-2,104, is a permissive “fair use” of the copyrighted materials. See Newport-Mesa Unified Sch. Dist. v. State of Calif. Dep’t of Educ., et. al., 371 F. Supp. 2d 1170 (C.D. Cal. 2005). 

But I Thought Karen Said. . . 

I know. . . I know.  Sometimes it only takes 15 years to convince Karen she could be a little less aggressive. But, in fairness, the extent to which parents are entitled to access to testing protocols and raw responses is truly a fact-dependent inquiry.  In a lot of cases, the evaluative report and other information supplemented by the evaluator is comprehensive enough to interpret records and facilitate meaningful parental input.  After a few recent experiences, though, we’ve found it is beneficial to err on the side of retention in the event that the protocols and other documentation generated during the evaluation become necessary.

Going Forward

We know that many evaluators have a practice of destroying testing protocols and raw response data after an evaluative report has been completed.  Unfortunately, in some circumstances this practice will run afoul of a school’s obligation to provide and explain education records or facilitate meaningful parental participation in special education processes.  As a result, we recommend that you inform all of your evaluators and service providers that they are required to retain testing protocols and other documents produced while conducting evaluations.  In fact, this is a requirement we’ve incorporated into our recently updated evaluation criteria policy.

If you have any questions about requests for access to testing protocols, or any other issue, please don’t hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send us all an email at ksb@ksbschoollaw.com. 

It’s the Most Wonderful Time of The Year…SUMMER BREAK!!

Do you hear that? 

It doesn’t matter what sound we’re talking about.  The fact that you can possibly say “yes” at all to that question is a sign the students are gone and summer is upon us in South Dakota.  While it may be quieter in your building, there is no rest for the weary as you now try to get to that pile of papers on your desk labeled “Future Self’s Problem.” 

We know how large that pile can get, so hopefully this post can help alleviate some small concern regarding one summer activity for administrators: the annual July meeting.  In South Dakota, state law defaults a school board’s annual meeting to the second Monday in July.  While there are a few things required of boards at these meetings, there are many other action items that lend themselves well to discussion at this meeting.  

So what formalities does South Dakota law require of boards at the annual meeting? Fortunately, this list is actually quite small:

• Seat newly-elected board members, 

• Elect a board president and a vice president,

• Designate a depository and the custodians of all accounts, and; 

• Designate the legal newspaper to be used for publishing all official notices and proceedings.

New Members and Officers.  South Dakota requires newly-elected board members to assume membership at the annual meeting in July.  New members have to take an oath to support the laws of the Constitution and of the United States and to faithfully perform the duties of board membership. Once the new board is set, they must elect a president and vice-president for the year.  

Newspaper Designation.  At some point during the annual meeting, boards must designate an official newspaper.  The newspaper must: 

• be printed in English,

• contain at least four pages per issue,

• have each page be at least 120 sq. in.,

• have at least 200 paid subscribers, 

• not consist of mostly advertisements, and

• maintain an office of publication for at least 8 hours a week (new requirement from the 2022 Legislative session.

If the paper has daily issues (either electronically or in print), it must be distributed at least five days a week.  If it’s a weekly paper, it must be distributed at least weekly no less than 50 times a year. 

Other Designations.  While the legal newspaper designation may have the most boxes to check, the law requires boards to designate a bank as well.  It’s also common for schools to designate those authorized to write checks, to act as administrators for federal programs, reauthorize membership in organizations such as ASBSD, and to name legal counsel for the district.  Additionally, it is common for boards to set school board pay, appoint committees, and handle other yearly matters during the annual meeting.  

Legal Counsel.  Many boards designate the law firms(s) that they will work with during the next calendar year.  While such action is not required by law, it does clarify a school’s intention to work with legal counsel and empower administrators to seek advice when it’s needed. There’s no requirement in South Dakota to name a single individual, or even a single firm, as legal counsel for the district.  In many instances, it is preferable to have more than one firm named, especially when Title IX and special education issues arise.  

Stay Cool!  We hope this information will help you prepare for your annual meeting.  If you have any questions about your  July meeting, or if any other legal issues are keeping you from enjoying your summer, please don’t hesitate to reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara! 

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.

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.