SOUTH DAKOTA WEBINARS FOR 23-24

We’ve set the topics and dates for the South Dakota Webinars in 23-24. Join us for 90’s inspired pop song themes as we cruise through (while reliving the best decade of music) school law related topics. Last year KSB offered a series on a monthly basis.   We have been overwhelmed by your positive response!  Back by popular demand, these short webinars focus each month on a key topic that we see administrators struggle with -- no matter how experienced they may be.  These sessions are be short, practical and to-the-point and are intended to encourage open question time for live participants.  We are offering sessions. One on hot topics and one on special education. These webinars will be presented live via Zoom, and also recorded, so you can watch them later if you have a conflict or go back to the recording and any materials for a refresher. 

Click below for cost, dates and topics!

HOT TOPICS WEBINAR SERIES

SPECIAL EDUCATION SERIES

CLICK HERE TO REGISTER!

KSB WEBINARS FOR 23-24

The 2023-24 KSB School Law Webinar Series topics are set!    

KSB QUARTERLY WEBINAR SERIES

This year the federal government is making it really, really tough for school attorneys to plan ahead.  The Biden Administration has announced that it will propose new FERPA regulations this spring, propose amendments to the Section 504 Regulations in August and release new Title IX regulations sometime in October.  These changes will have significant effects on how Nebraska schools operate on a daily basis.  This year, we are focusing all of our “deep dive” quarterly webinars on the new regs.  However, given the fact that the officials at US DOE don’t really care about our schedules, we don’t yet know when these new materials will be released.  So for the 2023-24 school year, we have set the topics, but not the dates for our quarterly webinars.  We will blast information and registration information out once dates are set, but for now, here is the preview of coming attractions, along with the target dates that US DOE has announced at this point.  

ROOKIE AND REFRESHER SERIES

For the past two school years, KSB has offered a series that we called the “Rookie and Refresher Series.”  We have been overwhelmed by your positive response!  Back by popular demand, these short webinars focus each month on a key topic that we see administrators struggle with -- no matter how experienced they may be.  These sessions are be short, practical and to-the-point and are intended to encourage open question time for live participants.  We offer three strands of Rookie and Refresher sessions: one for superintendents; another for principals and a third for special educators.  This year all of the strands will be presented live via Zoom, and also recorded, so you can watch them later if you have a conflict or go back to the recording and any materials for a refresher. 

Click below for cost, dates and topics!

Superintendents

Special Educators

Principals 

CLICK HERE TO REGISTER! If you have questions, please feel free to reach out to ksb@ksbschoollaw.com

Welcome to the Jungle School, We've Got Fun and Games: What Administrators Need to Get Done Before School Starts

July is the month where the proverbial “changing of the guard” happens for school administrators.  With an influx of new superintendents, we decided it was time to remind you of all the “fun” paperwork and political hoopla you should put on your to-do list.

Annual Trainings

Behavioral and Mental Health Training: All public school employees who interact with students and any other “appropriate personnel” as determined by the superintendent must receive at least one hour of behavioral and mental health training with a focus on suicide awareness and prevention training each year.  NDE’s website includes a list of approved training materials.

Seizure Safe Schools Act: Every certificated school employee must participate in a minimum of one hour of self-study review of seizure disorder materials at least once in every two school years.  NDE has materials that have been approved for this self-study on its website.  Make sure that you keep a record of each employee’s training, both for compliance when NDE does reviews and for legal defense purposes if it ever were to be necessary.   

Concussion Awareness.  Technically the Nebraska Concussion Awareness Act only requires that schools make concussion training “available” for all coaches of athletic teams.  We strongly encourage schools to require coaches to review the training and your school’s Return to Learn Protocols on an annual basis.  

Other Required Trainings

School Resource Officer/Administrator Training.  Every SRO and every administrator in a building which has an SRO must complete 20 hours of Nebraska-specific training.  The training required by Section 79-2701 is Nebraska specific, so law enforcement officers who have had training from the National Association of School Resource Officers or similar organizations must also complete this training.  Administrators who have SROs in their buildings must also complete the SRO training.  KSB School Law has this training available via video on demand (and we won’t tell anyone if you watch it at 1.5x speed).    

Dating Violence.  The Lyndsey Ann Burke Act requires all school staff to be trained in dating violence.  Although this is not an annual requirement, it is an easy training to overlook when staff turns over.  NDE has resources for training on dating violence.  If a KSB attorney has done an inservice for your staff, the materials likely included something that can be counted as dating violence training.  

Title IX Training.  Even though the Biden Administration intends to release new Title IX regulations in October, all members of your Title IX team need to be trained on the current Title IX processes.  If you have a new staff member who will serve as a Title IX Coordinator, investigator, decision-maker or appellate decision-maker, check to see if you can document their receipt of this training.  If they were trained at their prior district, you will need to post the materials from that training on your website.  If they have not been trained, KSB has video on demand training on the current regulations (and we’ll also have tons of resources on the new regulations when they come out).  

All Staff Title IX Training.  The current regulations do not technically require every staff member to be trained on Title IX, but every staff member can impose liability on the district if they do not respond to sexual harassment in the (counter-intuitive) way the regulations require.  The Biden administration has telegraphed its intention to require all staff to be trained.  Therefore, school districts should use their discretion on training all staff.  Knowing that you may need to re-train everyone on the new regs, you might forego this all staff training as a back-to-school item.  However, we are lawyers and we always think more training is better.  ALICAP has video on demand on this topic, as does KSB.  (We just don’t want you to blame us when you have to re-do that training later this school year.) 

Driver of Pupil Transportation Vehicle Training. Drivers of pupil transportation vehicles must receive Level I instructional training in the operation of vehicles that transport school children.  A “refresher” Level II course must be taken every five years after the Level I course.  A “waiver” exam for the Level I & II instructional training course is available. The waivers are good for 60 calendar days during which time the driver must take the Level I or II course.   NDE’s website includes a link to the schedule and location of training offered throughout the year at various sites in Nebraska. 

Budget Process Reminders

This is our second year with the “postcard bill,” Neb. Rev. Stat. 77-1633 (the joint public hearing law) to ensure compliance.  This statute was revised during the 2023 unicameral session to require an elected official from the political subdivision to be present at the hearing.  Additionally, bond principal and interest are now excluded.  (See LB243 and LB727 for more information.)

For school boards interested in voting (pursuant to LB 243) to increase the district’s base growth percentage for purposes of determining its property tax request authority, we have developed a packet of resources for boards to take that action.  These resources include (1) a memo summarizing the steps that must be met in order to use this method, (2) a meeting notice, (3) a sample agenda item, and (4) a resolution for the board to consider and approve if it desires to approve such an increase.

If you need to amend the current fiscal year’s budget, the amendment should be made prior to exceeding the budget, and a hearing must occur prior to August 30. (See Neb. Rev. Stat. 13-511.)  Also, consolidated data collections for the Superintendent Pay Transparency Act (which includes submitting the entire approved contract on the NDE portal) are due on or before August 1.  

Policy Reminders

Most of these policy reviews probably occurred at your July board meeting.  But just in case you’re unsure, here is a list of the policies which boards are required to review annually.

Student Fees Policy: According to Nebraska law, the board must review the amount of money collected from students and review the waivers of student fees provided to students under its student fee policy.  It must also hold a public hearing on the proposed student fee policy for the upcoming school year.

Bullying: The board must review its bullying policy.

Teacher Evaluation: The District must communicate with staff members in writing about the evaluation process to comply with Rule 10. 

Safety and Security Committee: Per Rule 10, the district’s safety and security committee must meet at least annually to prepare and/or review safety and security plans and procedures. 

Attendance and Excessive Absenteeism: The board must annually review its attendance policy at a board meeting. 

Student Academic Performance: To comply with Rule 10, the district must distribute an annual report to patrons about the district’s academic performance.

Multicultural Education: Similarly,  the board must receive annually a report about the district’s multicultural education curriculum.

If you have any questions, please do not 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.  

Call Me, Beep Me If You Wanna Reach Me: The Best Way to Contact Your School Lawyer

(For all the school administrators who love the pop culture references we bake into these blog posts, we hope you enjoy the Kim Possible reference; for you old geezers Steve, click here.)  One of our core values at KSB is to be client-centered.  We literally have it posted on the wall in both our Lincoln and our Sioux Falls offices.  But what exactly does that mean to the school districts we represent?  In part, it means that we work really hard to be responsive when you need us.  As technology has changed over the last ten years, we have noticed that some clients call the office, then call our cells, then text us and then email us.  Being a school administrator or board member is hard enough--we want to make it simple  for everyone to contact us.  We want to make your jobs easier!  Here is how best to contact us and get the quickest response. 

Phone Calls.

1. Call either the office or our cell phones.  Our office phones are linked to our cell phones, so you can call either number, but you don’t have to call both.  If you don’t have our cell numbers, there is a PDF provided at the end of the post with everyone’s digits.  (Rule - don’t spam us with GIFs or terrible memes unless they are delightfully funny).  Also, if you are flexible with who you would like to speak with, don’t hesitate to ask for or reach out to an associate.  They are equally as funny as Karen/Steve/Bobby.  [From Steve: “harumph”]   

2. Leave a message if you want a call back.  If you don’t leave a voicemail, we assume you called one of the other folks in the office or decided to shoot us an email or text.  

Texting.  

1. We text!  Feel free to use our cell phone numbers to text us.

2. Shari texts!  If it is an emergency and no one has answered the phone, shoot Shari a text.  She always knows where we are and can bust down the door of the conference room if she needs to do it.  

   Email.  

1. To get the quickest possible answer, use the KSB@ksbschoollaw.com email address.  It will go to everyone in the office (including Shari, who always knows our whereabouts).  

2. If you have e-mailed any of us and not received some sort of response in 48 hours, you should follow-up with our office.  We have had cases where a client’s email was misdelivered, sent to SPAM, or simply did not come through.  

Sharing Documents.   

1. We Love Google Docs.  We are a Google office and can access drives and documents that you share with us on these platforms.  We will also share documents with you using the Google platform if that works for you and your district. 

2. If you don’t use Google, scans are the best way to provide us with copies of documents.  That allows us to access the documents no matter where we are. 

3. U.S. Mail also works.  We maintain all of your files electronically, so all of the documents turn into scans anyway.  (We know this is shocking as lawyers loooovvveeee paper.) 

4. We can send and receive faxes.  If we have to.  But it isn’t 1996 anymore.  (Even though the title implies we use pagers, we are sad to report we left those in 1996 as well with the fax machines.)  

Social Media.  

1. Social media is not a good way to receive legal advice.  We bow to no one in our love for social media.  If you think you should be able to contact your lawyer via Snapchat, Twitter, or Instagram (or the new and trendy Threads), congratulations on being a millennial administrator or school board member!  Otherwise, please enjoy our social media posts for interesting articles, jokes about Bobby, and pictures of our kids and/or dogs, but please don’t use them to ask us legal questions. 

Feel free to share this with other members of your board or administrative team.  Then you can show us what you’ve learned by (spamming our cell phones with GIFs) communicating any questions via call/email/text as appropriate.  For a downloadable PDF with all of the KSB crew’s contact information which you can save and consult as needed, please click here. 

Cheers to Peace, Quiet, and Sanity in FY 2024: Happy New (Fiscal) Year!

While there is no fancy ball drop or confetti to ring in the new fiscal year, many school administrators are diligently preparing for their July annual (reorganization) meeting.  Many have asked us about board actions required or typically taken at the first meeting of the new fiscal year, so we have prepared a short list of frequently-asked questions for your reference. 

Designating a Bank

SDCL 13-8-10 requires boards of education to designate the district’s depository (bank) or depositories.  Specifically, SDCL 13-16-5 states that the board shall “by resolution duly adopted at any annual, regular, or special meeting designate any bank or banks within the state as depositories for the funds or any part or parts of the funds of the district.”  Prior to this meeting, it is wise for school administrators to review the depository information released by the Department of Legislative Audit to determine under-collateralized banks, if applicable.  This information is accessible here.

Election of Officers

SDCL 13-8-10 also requires the Board to elect a president and vice president “from its membership” who will “serve until the next annual meeting.”  We recommend reviewing your school board policy on the methodology for board officer voting. 

What Do We Do About Ties?

A related question for the July meeting each year is how to deal with ties for officer elections.  Election of the president and vice president is required by statute, but there is no statutory process for breaking the tie.  We encourage you to review your policies to see if they include a method to break any officer election ties.  Boards that have adopted KSB’s Policy 2002 likely have approved one of the methods for breaking ties so that you do not have dozens of failed motions or tie votes.  

Tell Us About This Oath of Office

SDCL 13-8-14 requires newly elected members of the Board to take and subscribe “to an oath or affirmation to support the laws and Constitution of the United States and the State of South Dakota and to faithfully perform the duties of school board membership . . ..”  Additionally, SDCL 13-8-15 provides that the oaths will be filed in the office of the business manager with the exception of the business manager’s oath which will be filed with the county auditor.  The oaths only need to be completed once, upon the induction of the new board members and the hiring of a new business manager.  The statute also empowers both business managers and board presidents to administer oaths.  

What Else Is Legally Required at the July Annual Meeting? 

The Board must also “designate the legal newspaper to be used for publishing all official notices and proceedings.” 

Designating a Law Firm

Many boards designate the law firms(s) that they will work with during the next calendar year.  There is no legal limitation on the number of law firms a board may designate so boards can authorize more than one firm.  While such action is not technically required, it does clarify a school’s authority to work with legal counsel.  A sample board agenda and motion for designating a law firm is available here.

We hope this information will help you prepare for your July meetings.  If you have any questions about your July meetings, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000. 

Breathe In, Breathe Out: Counting to Ten

While administrators collectively breathe a sigh of relief that student discipline is not a daily activity in the summer, the dog days of summer are a great time for school administrators to refresh their knowledge about student discipline.  We want you to be ready for when those little jerks your amazing students return to school this fall.  One area in particular that most administrators need to review is federal law regarding special education students.  Administrators frequently call KSB asking for clarification regarding the 10-day rule and which removals cause days to be counted toward that number.  As a reminder the 10-day rule provides that special education students who are suspended for more than 10 school days are entitled to additional procedures from the school.  The rule is found at 34 C.F.R. §300.530(b)(1) which provides: 

School personnel under this section may remove a child with a disability who violates a code of student conduct from his or her current placement to an appropriate interim alternative educational setting, another setting, or suspension, for not more than 10 consecutive school days (to the extent those alternatives are applied to children without disabilities), and for additional removals of not more than 10 consecutive school days in that same school year for separate incidents of misconduct (as long as those removals do not constitute a change of placement under § 300.536).

We have compiled a list of the top questions we receive regarding the 10-days, discipline and resources we recommend school administrators review this summer.

Does ISS count towards the 10 days?

The safest answer is to count ISS days and call your lawyer to talk it over when you get to 7 or 8 total days of ISS.  This is because the determination of whether to count ISS days is very fact-specific legal analysis.  The IDEA commentary provides that ISS days would not count towards the 10-days as long as the child is given the opportunity to: (1) continue to appropriately progress in their curriculum, (2) continue to receive their IEP services, and (3) continue to participate with nondisabled children to the extent they would have in their usual placement.  The third part of that list is what trips up many districts.  Most schools will struggle to prove that the ISS room does not limit the child’s participation with nondisabled peers.  Districts should further be on alert that OSEP provided guidance in its July 19, 2022 Q&A document stating: “[T]he repeated use of in-school suspension may indicate that a child’s IEP, or the implementation of the IEP, does not appropriately address their behavioral needs.” 

Do partial day disciplinary removals count towards the 10-days?

Again, the answer isn’t entirely clear, so we advise schools to count each partial day as 1 day of removal and to call your attorney when you get close to the 10 day limit.  The Feds have said “portions of a school day that a child has been suspended may be considered a removal in determining whether there is a pattern of removals.”  71 Fed. Reg. 46,715 (2006).  Additionally, OSEP’s Q&A document provides: “In general, the use of informal removals to address a child’s behavior, if implemented repeatedly throughout the school year, could constitute a disciplinary removal from the current placement.  Therefore, the discipline procedures in 34 C.F.R. §§ 300.530 through 300.536 would generally apply.”  Partial day disciplinary removals and informal removals likely will count towards the 10-days. 

Do I count days, occurrences, or hours when counting towards the 10-days?

Again, as an initial matter, we advise you to count each partial removal as a day, and to seek legal clarification when you get close to 10.  The IDEA’s implementing regulations define school day as any day, including a partial day, that children attend school for instructional purposes.  34 C.F.R. § 300.11(c). However, the regulation continues by saying that: “School day has the same meaning for all children in school, including children with and without disabilities.” 

What does this mean practically?  Our position is that in counting school days we should use the same standard units as we would for counting attendance of any student.  For example, if your attendance for general education students is accounted for by fractions of a school day (such as by class periods) we contend that the same should apply in counting days of removal for special education students.  

Do bus disciplinary removals count towards the 10-days?

It depends. (Seeing the pattern here?)  OSEP has stated:

“Whether a bus suspension would count as a day of suspension would depend on whether the bus transportation is part of the child’s IEP. If the bus transportation is part of the child’s IEP, a bus suspension would be treated as a suspension under Sec. 300.530 unless the public agency provides the bus service in some other way, because that transportation is necessary for the child to obtain access to the location where services will be delivered. If the bus transportation is not a part of the child’s IEP, a bus suspension is not a suspension under Sec. 300.530.”

If a student’s IEP requires transportation as a related service and the student is suspended from the bus, the bus suspension would count as a suspension from school unless the district provides an alternative means of transportation.  If the district provides transportation to all students as a general education service, there is an argument that a student with a disability would be entitled to manifestation before he or she is removed from the general population of bus transportation for more than 10 days.  This is a good reminder that your transportation staff need to be trained on special education issues generally, and informed of the needs of specific students on their routes before school starts next year. 

Resources to Review

If you are looking for some light reading this summer, OSEP issued a Q&A document last summer addressing issues related to informal removals.  The document is available here.  We also blogged about the guidance here and here.  
Please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com if you have any questions regarding special education or student discipline. 

Summer is in the Air, and The Federal Government Has Big News to Share: The Pregnant Workers Fairness Act Goes Into Effect June 27, 2023

While all of us at KSB hope school administrators have a calm and relaxing summer, we have important legislation to brief you on.  In a previous blog post, we discussed the implications of the PUMP Act which was signed by President Biden on December 29, 2022.  At the same time, he also signed the Pregnant Workers Fairness Act (PWFA) which goes into effect on June 27, 2023.  (The EEOC actually has a countdown clock until the law’s “due date” which is available here.)  This new law requires employers with 15 or more employees to provide “reasonable accommodations” to workers affected by pregnancy, childbirth, or related medical conditions.  The definition of “reasonable accommodation” is the same definition found in the ADA.  Such accommodations under the PWFA are required unless the accommodation will cause the employer an “undue hardship.” 

What might these reasonable accommodations look like?  The House Committee on Education and Labor Report on the PWFA was kind enough to provide us with several examples.  For instance, a pregnant teacher may request an accommodation to receive closer parking or have the ability to keep a mini-refrigerator in her classroom with snacks and beverages to assist with any blood sugar issues.  Another example would be a school custodian who may be excused from strenuous activity due to her pregnancy. 

The PWFA also prohibits a host of other activities including: requiring the employee to accept an accommodation without a discussion regarding the accommodation, denying a job or employment opportunity to a qualified individual based on the person’s need for a reasonable accommodation, requiring an employee to take leave if another reasonable accommodation can be provided that would allow the employee to keep working, or retaliating against an individual for reporting a PWFA violation.  The PWFA does not limit an employee’s access to other applicable federal laws such as Title VII, the ADA, the FMLA, or the PUMP Act.

Good news for the Nebraska school districts - Nebraska already has an existing state law which provides equivalent protections.  The Nebraska Fair Employment Practice Act (Neb. Rev. Stat. § 48-1101) contains many of the same antidiscrimination protections which are now found in the PWFA.  South Dakota schools - there are no current state protections in South Dakota.  Therefore, we recommend you review the PWFA and ensure compliance with this new law.

If you have any questions about the PWFA or applicable state laws regarding pregnancy, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

33 Years of the Americans with Disabilities Act: Reminders for School Districts

This summer the Americans with Disabilities Act (ADA) will turn 33.  (This happens to coincide with the ages of Tyler and Sara . . . who we know look much younger than 33. *wink, wink*)  In our experience, business officials, bookkeepers, and other administrators may not immediately think of the ADA when interacting with employees.  As a reminder, the ADA (subsequently called the Americans with Disabilities Act Amendments Act “ADAAA” - thank you to the federal government for such a succinct name)  bars an employer from discriminating “against a qualified individual on the basis of disability.”  See 42 U.S.C. § 12112(a).  In order for an employee to be a “qualified individual” under the ADA, the employee must “(1) possess the requisite skill, education, experience, and training for the position, and (2) be able to perform the essential job functions, with or without reasonable accommodation.”  42 U.S.C. § 12111(8). 

There are countless cases where employers have faced lawsuits due to an employer’s failure to accommodate.  If a school district employee requests an accommodation due to a disability, the District has a duty to engage in an “interactive process.”  The process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.  Essentially, this can be as simple as a meeting between an administrator and the staff member to help the District understand the employee’s abilities and limitations and whether there is a solution.  This meeting should be documented in some manner.  At KSB, we recommend an ADA Interactive Process Checklist.

If a district fails to engage in the interactive process in good faith, the District may be liable under the ADA if a reasonable accommodation would have been possible.  What is a reasonable accommodation?  A reasonable accommodation is assistance or changes to a position or workplace that will enable an employee to do his or her job despite having a disability.  Under the terms of the ADA, “reasonable accommodation” can include: (A) making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and (B) job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.  42 U.S.C. § 12111(9).  If the accommodation would create an undue hardship for the employer, the accommodation would not be required.  42 U.S.C. § 12111(10)(B).

School administrators should be aware that the definition of “disability” under the ADA is quite broad, and Congress did that on purpose.  It includes obvious and apparent conditions you may know about such as diabetes, cancer,  and mobility impairments, but it also can include mental health conditions and others you may not know about.  In general, it is easy to have a disability under the ADA, and once you have knowledge of a possible disability and need for possible accommodations, you as the employer should engage in the interactive process.  Additionally, reasonable accommodations can vary and can include changes such as providing reserved parking, shades for bright lights, noise-canceling headphones, or daily schedule changes.  

Finally, employers always need to keep in mind that the ADAAA is only one of several laws that could require action when an employee has a disability, such as the FMLA, state disability laws, work comp, and of course your own policies, handbooks, and contracts.
If you have any questions about the ADAAA or would like to purchase a copy of the ADA Interactive Process Checklist, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Save the Date–Policy Updates and Webinar!

School is out! Which for South Dakotans means it’s time for boating, grilling, questionable firework decisions, and of course, school district policy review!  Well fine, maybe that last one isn’t as exciting as the others. As we type this message grateful for the fingers we’ve only narrowly avoided losing, we are certainly excited to get started on our end. 

For KSB Policy Service Subscribers, we will send out our complete policy updates on Tuesday, June 27.  These updates will include:

• A redline version of each policy to be updated;

• A clean version of each policy to be updated;

• A memorandum explaining each change and whether KSB advises that the change is mandatory, recommended, or optional; and  

• A list of all required annual notices to be given.

On Thursday, June 29, KSB will then host a webinar where we will go through each change and discuss any questions subscribers may have.  After the webinar, subscribers will be able to adopt the updates at their annual meetings in July.  We will also record this webinar and send it out to subscribers who aren’t able to attend live. 

For anyone reading this who is not a subscriber, our policy service is always looking to take some things off of your plate.  We have grown our subscriber list significantly in the last year.  Our policy service is first and foremost exactly that – a service.  It is not a book of policies we provide without explanation of our decisions.  Instead, we provide policies to our subscribers and then go through the policies with the client.  Some schools tweak or add to the policies while some adopt them “as is.”  Once the adoption process is complete, all policy questions and most instances of unique drafting are included in the original subscription and are not billed.  We also provide handbooks which are a companion to the KSB policies and are up-to-date for legal compliance as well.  If you have any questions about policy compliance or KSB’s policy service, reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at ksb@ksbschoollaw.com. 

“An Ounce of Prevention, is Worth a Pound of Cure:” Required Staff Trainings

Ahh, the joys of summer break.  Nothing is sweeter to administrators’ ears than the silence of the school building in summer.  Before you turn on your autoresponder, blend up a pitcher of pina coladas and head to the beach for the summer, now is an excellent time to review mandatory and recommended staff trainings and place them on the district’s calendar for when your staff returns this fall. 

MANDATORY TRAININGS

Title IX.  As of August 14, 2020, the members of your Title IX Team (i.e., Title IX Coordinator, Investigator, Decision-Maker, Appellate Decision-Maker, and Informal Resolution Facilitator) must all receive specific Title IX training.  If that hasn’t been completed—or if you have a new member to your Title IX Team who has not received that training—that training must occur as soon as possible.  As you have most likely heard us say before, we strongly recommend that all district employees and board members also receive basic Title IX training, with an emphasis on the legal definitions of sexual harassment and how to report it to the appropriate people.  We anticipate the new federal regulations will require ALL staff receive training.  While you are enjoying your well-deserved summer break, the KSB attorneys will monitor the Title IX situation and will let everyone know what the final regulations require when they are published.   

Child Find Obligations/Section 504/MTSS/PBIS.  The IDEA and South Dakota Administrative Rules require training for “appropriate” staff to be able to carry out the district’s “child find” obligations under state and federal law.  These obligations also apply to Section 504.  Any presentation about MTSS and PBIS should also remind staff of ongoing child find obligations regardless of the tiered intervention system your district uses.

Suicide Awareness and Prevention. All teachers, administrators, and other educational professions must receive one hour of suicide awareness and prevention training in order to be issued an initial certificate and a renewal certificate as required by SDCL 13-42-71.

HIGHLY RECOMMENDED TRAININGS

Sex Harassment and Discrimination. Staff should, at a minimum, know where to locate your policy and handbook provisions on antidiscrimination based on sex.  This includes your sex harassment policy, complaint procedure, and grievance procedure (for certified staff).  They should also understand who your Title IX coordinator is and how that person can be contacted.  That will be in your nondiscrimination notices, but reviewing it with staff is a good idea.  Ideally, you would review prohibited conduct.

Section 504 and ADA.  Staff have a right to be accommodated if they have a disability.  The school must provide reasonable accommodations to allow the employee to perform the essential functions of their positions.  You should, at a minimum, cover your process for staff requesting accommodations, reporting workplace injuries, and your complaint and grievance procedures in the context of a staff member with a disability.  

Mandatory Child Abuse Reporting.  South Dakota statute 26-8A-3 requires teachers and school counselors to report child abuse when the employee “who has reasonable cause to suspect that a child under the age of eighteen has been abused or neglected.”  You should train on this obligation and on your district’s mandatory reporting policy and procedures.

Restraint and Seclusion.  Under SDCL 13-32-20, each district must have a restraint and seclusion policy.  We recommend reviewing it and your practices with your staff.  

Professionalism and SD Administrative Rule Chapter 24:08:03.  You should review your board’s expectations for professionalism by way of policies such as appropriate relationships, technology use, and others.  This should include a review of certified staff conduct rules laid out in South Dakota Administrative Rules Code of Professional Ethics.  Ideally staff will certify that they have read Chapter 24:08:03 each year.

STUDENT ASSEMBLIES

Digital Citizenship Assembly (AKA “Digcit”).  The calendars are already filling up for the fall.  We recommend reaching out to book your student digcit assemblies now.  As a quick overview, Digcit is an hour-long assembly focused on educating students about sexting, inappropriate pictures, cyberbullying and the related consequences, both school based and criminal.  All assemblies are sprinkled with the usual KSB sass and humor.  Typically, the sessions are separated into middle school or junior high and high school.

UPCOMING SUMMER SPECIAL EDUCATION TRAINING 

If you just can’t get enough special education training, there is an excellent national conference close to home this summer.  The Midwest Educational Leadership Conference will be held June 19-21 in beautiful Breckenridge, Colorado.  The speakers include KSB School Law’s own Karen Haase.  If you would like more information or to sign up, just click here.  

If you have any questions about trainings or would like to schedule the KSB crew to conduct a staff in-service or Digcit, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.    

“An Ounce of Prevention, is Worth a Pound of Cure:” Required Staff Trainings

Ahh, the joys of summer break.  Nothing is sweeter to administrators’ ears than the silence of the school building in summer.  Before you turn on your autoresponder, blend up a pitcher of pina coladas and head to the beach for the summer, now is an excellent time to review mandatory and recommended staff trainings and place them on the district’s calendar for when your staff returns this fall. 

MANDATORY TRAININGS

Dating Violence.  Schools must provide dating violence training to staff deemed appropriate by a school district's administration.  The dating violence training must include, but is not limited to, basic awareness of dating violence, warning signs of dating violence, and the school district's dating violence policy.  Neb. Rev. Stat. § 79-2,141.  NDE’s website has good resources to use for this training.

Concussion Awareness.  The school must make available training approved by the chief medical officer on how to recognize the symptoms of a concussion or brain injury and how to seek proper medical treatment for a concussion or brain injury to all coaches of school athletic teams.  The NSAA used to require this training annually, but that has never been required by the statute.  The NSAA issued an “approved ruling” which now allows the training every 3 years, with training in the first year for new sponsors.

 Behavioral and Mental Health.  LB 705 changes the suicide awareness training to Behavioral and Mental Health Training.  It will require “all public school employees who interact with students and any other appropriate personnel” as determined by the superintendent to receive at least one hour of behavioral and mental health training with a focus on suicide awareness and prevention training each year.  The change is not effective until September 10, 2023. 

Evaluator Training (Evaluating Administrators Only). All evaluators must be “trained to use the evaluation system used in the district.”  This would include all evaluators (superintendents, principals, etc.), but there is an exception for boards of education that evaluate the superintendent.  NDE Rule 10 § 007.06(B).

Pupil Transportation Vehicle Drivers/Safe Pupil Transportation Plan.   Districts must annually provide a 2-hour training for individuals who drive pupil transportation vehicles required by Rule 91.  Additionally, Districts must provide one-time training to pupil transportation vehicle drivers of small vehicles on activity trips prior to driving.  

Training for All School Resource Officers and All Administrators in Buildings with SROs.  Section 79-2704 of the Nebraska statutes requires each school resource officer or security guard and at least one administrator in each building which has an SRO assigned to it to “attend a minimum of twenty hours of training focused on school-based law enforcement, including, but not limited to, coursework focused on school law, student rights, understanding special needs students and students with disabilities, conflict de-escalation techniques, ethics for school resource officers, teenage brain development, adolescent behavior, implicit bias training, diversity and cultural awareness, trauma-informed responses, and preventing violence in school settings.”  If your SRO or building administrator have not received this state-mandated training, then this summer is the perfect time to get that completed.  Here is a link to KSB’s SRO training.

Title IX.  As of August 14, 2020, the members of your Title IX Team (i.e., Title IX Coordinator, Investigator, Decision-Maker, Appellate Decision-Maker, and Informal Resolution Facilitator) must all receive specific Title IX training.  If that hasn’t been completed—or if you have a new member to your Title IX Team who has not received that training—that training must occur as soon as possible.  As you have most likely heard us say before, we strongly recommend that all district employees and board members also receive basic Title IX training, with an emphasis on the legal definitions of sexual harassment and how to report it to the appropriate people.  We anticipate the new federal regulations will require ALL staff to receive training.  While you are enjoying your well-deserved summer break, the KSB attorneys will monitor the Title IX situation and will let everyone know what the final regulations require when they are published. 

STUDENT ASSEMBLIES

Digital Citizenship Assembly (AKA “Digcit”).  The calendars are already filling up for the fall.  We recommend reaching out to book your student digcit assemblies now.  As a quick overview, Digcit is an hour-long assembly focused on educating students about sexting, inappropriate pictures, cyberbullying and the related consequences, both school based and criminal.  All assemblies are sprinkled with the usual KSB sass and humor.  Typically, the sessions are separated into middle school or junior high and high school.  

UPCOMING SUMMER SPECIAL EDUCATION TRAINING 

If you just can’t get enough special education training, there is an excellent national conference close to home this summer.  The Midwest Educational Leadership Conference will be held June 19-21 in beautiful Breckenridge, Colorado.  The speakers include KSB School Law’s own Karen Haase.  If you would like more information or to sign up, just click here.  

If you have any questions about trainings or would like to schedule the KSB crew to conduct a staff in-service or Digcit, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.    

THE POLICIES ARE COMING! THE POLICIES ARE COMING! THE POLICIES ARE…COMING?

Well 2022-23 was a heck of a ride, amirite?  The “end” of a novel pandemic; a “novel” Unicameral session; real angry folks all over the place; and oh yeah, some herculean efforts to provide an awesome education in the middle of a staffing crisis.  First and foremost, congrats and great work!

You’ve been asking about policy updates, and we finally got some clarity.  With the passage of LB 705 (the education Christmas tree bill), most of the state-level policy updates are becoming clearer.

Here are a few key policy changes that LB 705 will require:

1. Major changes to student discipline policies and practices.  There are new timelines across the process, hearing officer challenges, and prohibitions on suspension of younger students.  Now don’t you fret Boba Fett--KSB plans to offer training for administrators and hearing officers this summer, along with new discipline forms, to get you ready for the new law.

2. Major changes to option enrollment, particularly addressing option enrollment for students receiving special education services.

3. Major changes to part-time enrollment and participation in extracurricular activities.

4. FAFSA, youth organizations and access, behavior intervention training, and quite a bit more.

If you are a KSB policy service subscriber, here is our plan for getting you the updated policies you will need after the legislative session ends: 

1. June 2: KSB will release our policy update packet.

2. June 7: KSB will hold our annual policy updates webinar (link sent later, and it will be recorded and shared for those who can’t make it live).

3. June 12: Likely board meeting date for most schools.

4. June 16 (or before): KSB plans to release our handbook updates

Before we close the book on the 2023 policy updates, here’s what could shake things up:

1. If the Unicameral moves any other education-impacting bills through in the last few days, we will adjust but still plan to get out everything we can by that first week of June.  July meetings are already packed with hearings and reviews, so we felt strongly about giving you the option of getting as much updating done in June as possible.

2. The U.S. Department of Education (USDOE) is expected to release updated Title IX regulations any day now.  They’ve promised May 2023, but they’ve been late before.  If you remember 2020 (LOL) they released regulations in May effective in August.  The newest regs as proposed would require training for ALL staff, so if that sticks, the effective date will greatly impact additional policy updates and training schedules.  We plan to do on-demand training again, if needed.

3. The USDOE just finished up a 30-day public comment period on its proposed gender participation in athletics rule under Title IX.  Reminder--the proposed rule would ban categorical restrictions but permit schools to make participation decisions using important educational objectives such as competitive fairness and prevention of injury.  If this rule becomes final and effective, it will require policy changes at some point.

4. Oh, and the USDOE is also working on new Section 504 and FERPA regulations.  Let’s hope they have enough on their plates for 23-24.

This is certainly enough to chew on for now, but if you have any questions about the policy updates for this year, drop us a line at ksb@ksbschoollaw.com or give us a shout at 402-804-8000.

I Need Money, Not a Job: Hiring High School Workers for the Summer

Detasseling.  Babysitting.  Bag boy at the local grocery store.  We all remember our first jobs.  The glory of 5:30 AM bus rides to wet cornfields to detassel corn.  A true midwest gift to teenagers 13 through 18 trying to earn a few bucks.  But can a school district be a student’s first summer employment experience?  Recently, we have received an uptick in calls from school administrators who are looking to fill temporary custodial positions with high school workers during the summer months.  High school students may be an excellent solution for schools during the three months of summer.  However, there are certain considerations Nebraska school administrators should review when hiring high school workers.

Minimum Wage

Nebraska law carves out an exception to the state minimum wage for school districts.  Specifically, Neb. Stat. § 48-1202(2) states: "Employer . . . shall not include the United States, the state, or any political subdivision thereof . . .."  This language means that school districts are excluded from the category of employers to which the state minimum wage applies and are not subject to the Wage and Hour Act.  Instead, a school is only required to comply with the federal minimum wage requirements.  The federal minimum wage is currently $7.25 per hour.  While high school students may be unwilling to work for $7.25 an hour, it is legally permissible.

Employment Certificate for Minors 14 and 15 Years of Age

The Nebraska Department of Labor requires a form be completed by a school administrator regarding any minors who are 14 and 15 years of age and seeking employment in any workplace.  The form is available here.  If the school district hires a 14- or 15-year old, the Department of Labor also requires Form 110 for employers which should be posted in the area the minor will be working to alert supervisors of the hour limitations.  Fourteen and 15 year olds are limited to working no more than 40 hours in a non-school week.  Additionally, their work cannot begin before 7:00 AM nor last beyond 9:00 PM. 

Driving “On-The-Job” 

Minors under 17 may not drive on public roadways as part of the minor’s job.  A 17 year old may drive on public roadways as part of the 17 year old’s job if the following requirements are met: 1) the driving occurs during daylight hours, 2) the 17 year old holds a valid driver’s license, 3) the driver has completed a driver’s education course, 4) the driver has no record of any moving violation at the time of hire, 5) the vehicle does not exceed 6,000 pounds gross vehicle weight, and 6) the vehicle has seat belts for the driver.  Additionally, driving may not include driving more than a 30 mile radius beyond the work site and transporting more than three passengers.

Lawn Mowing

One area we often see schools use minors for is mowing the school grounds.  Be aware that the federal Fair Labor Standards Act limits 14 and 15 year olds from certain activities.  For example, 14 and 15 year olds may help with “clean-up work and grounds maintenance,” but they may not “use power-driven mowers, cutters, and trimmers.”  See a complete list of limitations here.  If your high school workers are 16 or older, the limitations for work are substantially fewer.

Conclusion  

If you have any questions about hiring minors, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

I Need Money, Not a Job: Hiring High School Workers for the Summer

Detasseling.  Babysitting.  Picking Rocks.  Bag boy at the local grocery store.  Working as summer help at the school?  We all remember our first jobs.  The glory of 5:30 AM bus rides to wet cornfields to detassel corn.  A true midwest gift to teenagers 13 through 18 trying to earn a few bucks.  Recently, we have received an uptick in calls from school administrators who are looking to fill temporary custodial positions with high school workers during the summer months.  High school students may be an excellent solution for schools during the three months of summer.  However, there are certain considerations South Dakota school administrators should review when hiring high school workers.

Minimum Age and Wage

South Dakota law provides that no minor under the age of 14 may be employed.  SDCL 60-12-1.  Additionally, minors who are 14 and 15 are limited to working no more than eight hours a day and no more than forty hours a week.  SDCL 60-12-2.  School districts are also required to pay minimum wages as established by SDCL 60-11-3.  The 2023 South Dakota minimum wage is $10.80 per hour.

Driving “On-The-Job” 

Minors under 17 may not drive on public roadways as part of the minor’s job.  A 17 year old may drive on public roadways as part of the 17 year old’s job if the following requirements are met: 1) the driving occurs during daylight hours, 2) the 17 year old holds a valid driver’s license, 3) the driver has completed a driver’s education course, 4) the driver has no record of any moving violation at the time of hire, 5) the vehicle does not exceed 6,000 pounds gross vehicle weight, and 6) the vehicle has seat belts for the driver.  Additionally, driving may not include driving more than a 30 mile radius beyond the work site and transporting more than three passengers.

Lawn Mowing

One area we often see schools use minors for is mowing the school grounds.  Be aware that the FLSA limits 14 and 15 year olds from certain activities.  For example, 14 and 15 year olds may help with “clean-up work and grounds maintenance,” but they may not “use power-driven mowers, cutters, and trimmers.”  See a complete list of limitations here.  If your high school workers are 16 or older, the limitations for work are substantially removed.

Conclusion  

If you have any questions about hiring minors, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

On Our Radar: New Federal Legislation for Nursing Mothers

“And pump it (louder), pump it (louder), pump it (louder) . . ..”  Now that I have you all singing the famous 2009 Black Eyed Peas song Pump It Harder (released the same year Jordan finished his freshman year of high school . . . let’s think about that for a minute), it is time to dive into the newest federal legislation on our KSB radar, the “Providing Urgent Maternal Protections for Nursing Mothers Act” or (shortened slightly but still a mouthful) the “PUMP for Nursing Mothers Act.”  This legislation was signed into law by President Biden on December 29, 2022.  The PUMP for Nursing Mothers Act expands on current legislation to provide workplace protections to breastfeeding employees.  Presently, the FLSA requires employers to provide nursing mothers reasonable break time to express breast milk after the birth of a child for up to one year after childbirth.  Employers must provide a place, other than a bathroom, that is shielded from view and free from intrusion to express breast milk.  Also, employers may not deny a covered employee a needed break to pump.  

The PUMP for Nursing Mothers Act expands the FLSA requirement to cover salaried employees such as teachers who previously were exempt from these requirements.  Additionally, the time an employee spends expressing breast milk must be considered hours worked if the employee is also working.  Employees who use a break to pump are not required to be paid for that time.  If an employer fails to comply, the employee can seek monetary remedies against the employer such as back wages, liquidated damages, and attorney’s fees.    

Here are the most common compliance questions we receive from school districts:

Is a private bathroom a permissible location for the employee to pump?

Answer: No. Even if the bathroom is private, it does not comply with the requirements of the FLSA which explicitly provide the location must be “a place, other than a bathroom.”

Do we have to pay a staff member who uses break time to express breast milk?

Answer: No, if the employee is completely relieved from duty. If the employee is not completely relieved from duty, the employee must be paid.  For example, if you have a paraprofessional who corrects papers while pumping breast milk, she must be compensated for the time spent pumping and doing the work at the same time.

What is a reasonable break time for an employee to express milk? I have a custodian who takes three 40 minute breaks a day to pump.

Answer: The DOL gives wide latitude for nursing mothers.  Specifically, it states “the frequency and duration of breaks needed to express milk will likely vary depending on factors related to the nursing employee and the child.”  We discourage schools from placing arbitrary time limits on pumping breaks for nursing mothers. 

Is there still an exception for schools who employ less than 50 employees? 

Answer: The FLSA carves out an exception for employers with less than 50 employees if such requirements would “impose an undue hardship by causing the employer significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business.”  We recommend contacting your school attorney prior to making a decision to deny a pumping request.

If you have any questions about the FLSA or the PUMP for Nursing Mothers Act, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

The Popular Question of the Week: Are classified staff eligible for unemployment compensation during the summer?

Working at KSB School Law is always an adventure.  While the popular question last week was not “Where are we going to lunch?” (ahem Jordan), “Who is creating the powerpoint for our next presentation?” (looking at you Tyler), or “Which Disney movie is the greatest of all time?” (Sara, guilty as charged, but please send me your votes because we all know Emperor's New Groove wins), the most popular question we fielded in our office was “Are classified staff eligible for unemployment compensation in the summer?”  As the calendar inches closer to summer, business managers and superintendents are addressing unemployment compensation and eligibility questions from substitute teachers and classified staff.  As long as certain conditions are met, the answer is “no” in both Nebraska and South Dakota.

Nebraska law provides that school district employees are disqualified from receiving unemployment benefits for periods of unemployment which fall between regular school terms if they performed services for a school district during the first term and have a contract or a reasonable assurance of employment to perform similar services on comparable terms for any school district during the second term.  NEB. REV. STAT. § 48-628.06.  Similarly, South Dakota law states “With respect to services performed in any other capacity for an educational institution, no benefits may be paid to an individual on the basis of the individual's services for any week that commences between two successive academic years or terms if the individual performs the services in the first academic year or term and there is a reasonable assurance that the individual will perform the services in the second one.”  SDCL 61-6-15.

Both states specifically address an employee’s ability to have “reasonable assurance” of continued employment.  To guard against unemployment compensation claims, we recommend districts issue a “reasonable assurance” form to substitute teachers and classified staff.  This form gives employees an assurance of the school district's intention to continue their employment the following school year without guaranteeing them re-employment.  This form can be used as evidence in unemployment compensation cases of the district’s intent to continue employment in the subsequent school year. 

If you have any questions about unemployment claims or would like a sample reasonable assurance form, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

Bullying and Special Education: What is the Impact on FAPE?

As school administrators, you likely have been involved with many claims of “bullying” within your district.  Bullying has regularly been a hot topic within the education world for the past decade.  While bullying is an issue that has the potential to impact all students, data suggests special education students face bullying at higher incident rates than general education students.  For example, children with disabilities are two to three times more likely to be bullied than their nondisabled peers.  Disabilities: Insights from Across Fields and Around the World; Marshall, Kendall, Banks & Gover (Eds.), 2009. 

School districts have both legal and educational obligations to these students.  In a 2014 Dear Colleague Letter, OCR stated that “bullying on any basis of a student with a disability who is receiving IDEA FAPE services or Section 504 FAPE services can result in the denial of FAPE that must be remedied under Section 504.”  Office of Civil Rights, Dear Colleague Letter, U.S. Department of Education (October 21, 2014).  OCR goes on to provide an actionable response for the school which includes convening “the IEP team or the Section 504 team to determine whether, as a result of the effects of the bullying, the student’s needs have changed such that the student is no longer receiving FAPE.”  Id.        

What steps should a district follow if a bullying complaint is submitted by a student on an IEP or Section 504 plan?  First, the IEP or 504 team must determine whether the effects of bullying have adversely affected the student’s receipt of FAPE.  OCR recommends considering indications such as “a sudden decline in grades, the onset of emotional outbursts, an increase in the frequency or intensity of behavioral interruptions, or a rise in missed classes or sessions of Section 504 services.”   Id.  If the team determines there are no adverse effects due to the bullying, the team does not need to revise the student’s plan.

Alternatively, if the team determines the bullying has adversely affected the student’s receipt of FAPE, the team must identify additional supports the student needs in order to continue receiving FAPE.  The plan should be revised, and the amended IEP or 504 plan should be distributed to the appropriate staff and the parents.  In both scenarios, the team should issue a prior written notice explaining the basis for its decision.

School districts can also be proactive in order to avoid circumstances that may lead to bullying.  For example, school districts should train staff on the signs of bullying unique to students with disabilities.  Additionally, schools should appropriately respond to and document allegations of bullying.  Lastly, consider implementing social skills training as a tool for students with disabilities. 

If you have any questions about special education or Section 504, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.  

Why Are You So Obsessed With Me? Application of “Sunshine Laws” to Local School Boards

“So oh oh, so oh oh,” sings Bobby.  O wait, you are here for a blog post and not a visual reminder of what Bobby sings every day on his commute?  Just as the infamous Mariah Carey belts out these lines in her classic hit, board members might be feeling this pressure from public scrutiny lately.  Part of the scrutiny stems from state “Sunshine  laws” (like the Nebraska Open Meetings Act and the South Dakota open meetings laws) which inherently (and with good public policy reasoning) safeguard the public’s access to meetings and right to information.  Here are a few common questions and areas of concern which lead to potential open meetings violations.

1. Question: I am the superintendent.  Can I send an e-mail to all the board members simultaneously without a violation?

Answer: This makes us nervous!   Under the Nebraska Open Meetings Act, a meeting is defined as “all regular, special, or called meetings, formal or informal, of any public body for the purposes of briefing, discussion of public business, formation of tentative policy, or the taking of any action of the public body.”   Neb. Rev. Stat. § 84-1409.  Similarly, South Dakota law defines an official meeting of a public body to be “any meeting of a quorum of a public body at which official business of the public body is discussed or decided, or public policy is formulated, whether in person or by means of teleconference.”  SDCL 1-25-1.  If a board member hits “reply all” to an e-mail message, a violation of the open meetings law almost certainly occurred.  If a superintendent would like to send an email to all of the board members, the better practice is for the superintendent to send an email to himself or herself with the board members blind copied (BCC’d) on the email so as to avoid the dreaded “Reply All.”

2. Question: I am the board president.  Are there ramifications if I text another board member during a board meeting? 

Answer: Yes.  This is a violation of open meetings laws.  Board members cannot text each other during the school board meeting about school business.  The same would be true about any other form of communication such as social media.  

3. Question: I am the board president.  What limits, if any, can I place on public comment?

Answer: In Nebraska, the public is guaranteed the right to attend and speak at meetings of a public body.  Neb. Rev. Stat. § 84-1412.  The right of the public to provide input may be limited or prohibited at certain meetings so long as it is not forbidden at all meetings, and the public body may require a member of the public to identify themselves as a condition to addressing the body.  The Nebraska Attorney General has provided guidance that allowing public comment at least quarterly is sufficient to comply with the Act.  

In South Dakota, the public body is required to reserve time for public comment at regularly scheduled meetings.  SDCL § 1-25-1.  The public body may exercise discretion in limiting public comment but may not eliminate any public comment.  Senate Bill 162 which was signed by the Governor in February 2023 will change the law to require public comment at every official meeting with several exceptions.  

Reasonable and necessary boundaries can be placed on public comment in both Nebraska and South Dakota.  For example, uniform time limits can be placed on speakers such as two or three minutes per speaker.  Additionally, a board president has the discretion to stop speech or other conduct that the board president reasonably perceives to be or imminently threatens to cause a disruption of the orderly and fair progress of the meeting.  Similarly, swearing or profanity can be prohibited. 

4. Question: I am a board president.  Can I limit public comment criticizing school officials? 

Answer: In an effort to protect the reputation, privacy, and due process rights of school officials and employees, some school boards have adopted policies or practices of prohibiting citizens from publicly criticizing school officials or employees in open school board meetings.  These policies are typically deemed unlawful by the courts.  Therefore, citizens who speak critically of school employees must be allowed to do so unless their comments, coupled with other behavior, clearly threaten to disrupt the meeting.  To put it simply, each time the board provides the public the opportunity for public comment, it must permit the public to provide comment on any subject.  

If you have any questions about open meetings laws, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

In Like a Lion, Out Like a Lamb

The snow is melting, the birds are chirping, and March has arrived.  As the popular saying goes, “March comes in like a lion and out like a lamb.”  Just as the weather in March can oscillate from snow to sunshine, so can the adventures and challenges that walk into a Superintendent or Business Manager’s office.  One area of concern our firm is seeing lately is the lack of ADA-compliant job descriptions.  Many of you are in the process of renewing or issuing employment contracts or renewal agreements which makes this a great time to review job descriptions.  Schools should not wait until they receive a request for an accommodation–or worse, yet, a lawsuit–before developing or reviewing job descriptions. 

Although job descriptions are not required by either state or federal law, they are a key component of ADA compliance.  If you have well-drafted job descriptions, they can protect your school district from claims of disability discrimination.  That is because a well-crafted job description will include a list of “essential functions.”  Essential functions “are those functions that the individual who holds or desires the position must be able to perform unaided or with the assistance of a reasonable accommodation.”  Essential job functions are crucial to 1) determining if a potential employee can perform the essential functions of the job, 2) defending the District from any disability discrimination claims, and 3) requesting medical certification under the Family and Medical Leave Act. 

Our Recommendations.  Spring is the perfect time for schools to update job descriptions.  Even if your district has them in a file somewhere (possibly collecting dust), positions evolve over time (and attorneys learn how to draft more specific lists of “essential functions.”)   After updating your job descriptions, we recommend that you share them with employees.  Each employee should sign the job description to attest to receiving the description and indicating the employee can perform the essential functions of the job.  Now is an opportune time to have staff review and sign for receipt of job descriptions.  When you issue contracts and work agreements to staff, include a copy of their job description for review.  We do not recommend job descriptions be included in board policy.  

If you have any questions about drafting job descriptions, would like assistance with the job analysis process, or would like sample job descriptions, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

A Rose by Any Other Name ...

Shakespeare could have been talking about military leave when he asked:

What's in a name? That which we call a rose 

By any other name would smell as sweet;

 Juliet argues that it does not matter that Romeo is from a rival family; what we call something does not affect what it really is. Romeo and Juliet is a tragedy, but your understanding of the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA) does not have to be. This bit of prose reminds us that regardless of how a type of paid leave is categorized the law seeks to protect military members from workplace discrimination based on military service. 

As a reminder, USERRA protects military service members and veterans from employment discrimination on the basis of their service and allows them to regain their civilian jobs following a period of uniformed service.  Within the last two years, Courts have consistently expanded the interpretation of USERRA in regard to paid military leave. Based on this new trend of case law, we can determine when a request for paid military leave for short-term assigned duties; such as guard duty, drill, or training, should be treated as a request for any other type of paid leave by analyzing the law. 

 The USERRA requires an employer to provide pay and other benefits to a service member during periods of leave necessitated by military service to the same extent as it would provide a similarly situated employee pay and benefits during comparable periods.  White v. United Airlines, Inc., 987 F.3d 616 (7th Cir. 2021).  See also, Travers v. Fed. Express Corp., 8 F.4th 198, 209 (3d Cir. 2021); Won v. Amazon.com, Inc., 2022 U.S. Dist. LEXIS 149208 (E.D.N.Y. Aug. 19, 2022.)  

 The Department of Labor specified three factors to be considered when determining if two types of leave are comparable:

1.   The duration of the leave

2.   The purpose of the leave.

3.   The ability of the employee to choose when to take the leave. 

Imagine that an army reservist, who is also an employee in your district, is notified that they must report for training for two days for training the following month. Are you obligated to pay them for that leave?

It is up to the employee to demonstrate the leave they are requesting is comparable to a type of leave offered to employees for non-military purposes. When considering the request, the district should first look at the most important element; duration of the leave requested. If employees have access to paid jury duty leave for two days, then a request for paid military leave for the same duration of time would be comparable. Courts have also found bereavement leave to be comparable. Next, the purpose of the leave is considered. If the employee indicates that the purpose for the military leave is part of their civic duty, much like jury duty, it is likely that the purpose would be found comparable. The employee must be given the most favorable treatment accorded to any comparable form of leave when he or she performs service in the uniformed services. 20 C.F.R. § 1002.150 (2023). 

 Finally, the ability of the employee to choose when to take leave is analyzed. Though signing up to serve in the armed forces is voluntary, the courts consider only whether the timing of the leave is under the employee’s control. The courts do not look at the voluntary nature of participation in the armed services itself. Once commitment to military service is made, it is the employee’s lack of choice in when they take the necessary leave that weighs in favor of being paid for their requested leave.  

 Conclusion: This relatively new clarification of USERRA might have you wondering if paid military leave is “to be or not to be.” In light of the requirements of the USERRA, school districts may wish to reconsider the extent to which they offer paid leave that would be considered comparable to military leave, or whether they would alternatively offer leave that entitles the employee to differential pay. We recommend reviewing your current USERRA policies and also the types of paid leave offered by your District. 

If you have any questions about the USERRA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.