Let’s Make It Spicy! Book Bans and School Policy

The CAVE (Citizens Against Virtually Everything) are at it again!  Just when you might be questioning what to do with all your free time as a school administrator . . . what wait?  You can now add “address angry complaints about library books” to your “to do” list.  As you have probably noticed on social media and on the news, there are countless articles and buzz surrounding library and curriculum review policies.  (For South Dakota examples, check out news articles here and here.)  It’s a difficult subject to avoid, even for business managers who heard about the subject last week at the South Dakota Association of Business Managers Fall Conference.   It also has been in the news legislatively, as the South Dakota Senate killed a book access bill earlier this year.  We anticipate a similar bill will be brought this upcoming legislative session.  What does this mean for our schools?

As of now, the law does not require a review of library materials policy.  However, with the political pressure, districts may find it helpful to adopt a policy which lays out how the materials are selected and how materials may be challenged by concerned individuals and under which circumstances individuals may bring such challenges  (Homework time!).  Now is a great time for districts to review their complaint policies and also their public input policy for school board meetings as both of those policies may be implicated by current challenges to library materials.  Also, we recommend contacting your school attorney to discuss constitutional and open meetings considerations prior to modifying any policy. 

If your school is interested in a selection and review of library materials policy, KSB has drafted a sample policy for purchase.  If you are a South Dakota policy subscriber, this policy was sent out as part of the annual updates in June 2023.  Additionally, KSB School Law offers a South Dakota policy service for school districts.  Our policies are drafted to be short, clear, and useful.  Plus, any policy-related questions are free of charge, even if you call us in five years for advice or changes to a policy.  

If you have any questions about the legality of library material review policies or would like to purchase the sample policy or policy service, please email ksb@ksbschoollaw.com or call us at (402) 804-8000.

Weighing Your Options! Legal Changes to Option Enrollment

With schools all in session and the excitement of fall (pumpkins, high school athletics, cooler weather, Husker football?), many school administrators have likely already put the last Unicameral session out of their minds.  As these blog posts often do, we are here to give you homework (insert collective groans and boos)!  LB 705 was signed by the Governor on June 1, 2023.  Ultimately, LB 705 made a few substantive changes to the option enrollment laws we want to remind you about today. 

If you are a KSB Policy Service Subscriber, you received a memo from us yesterday explaining the changes and all of the new legal and reporting requirements.  We also sent an updated sample resolution and a sample denial letter to use to supplement NDE’s option application form.  If your district is not a KSB Policy Service Subscriber, let us know if you would like to purchase the additional information and forms.

Special Education Applications.  Special education option applications must be reviewed on a case-by-case basis.  School districts can no longer declare that the district’s entire special education program is at capacity or set capacity numbers for their special education programs.  This change has been in effect since September 2, 2023.  

If an option application indicates that a student has an individualized education plan (IEP) or has been diagnosed with a disability as defined under your  the director of special education services must review the students’s IEP.  The special education director must determine if the school district has the capacity to provide the student with their services and accommodations.  If you deny the application, you must identify the programs, services, and accommodations you cannot provide.   

Programmatic Capacity.  If the school board wants to declare a program, class, or school unavailable (i.e., “closed” for all options students) for the following school year, the board must pass a resolution with such a declaration prior to October 15th of the previous school year, making the effective deadline October 14.  This cannot include your special education program.  We refer to this as “Programmatic Capacity,” where you declare a program, class, or building closed and unavailable to any option students.  

Numeric Capacity.  You can still set specific capacity numbers for any “program, class, grade level, or school building” and can set those capacities later in the school year by resolution.  The only requirement to act prior to October 15 is for declaring programs, classes, or buildings closed.  As an example, you don’t have to decide by October 14 whether the capacity of your third grade classrooms is 20 students or 22 students or 26 students or whatever.  As there is no specific statutory deadline for those determinations, your board can make those numeric capacity decisions later in the school year, if it prefers.

Other Standards.  The law has always allowed the board to adopt standards beyond capacity.  You can still consider and use other standards your board may have implemented in the past.  Make sure to apply them without consideration of a student’s disability, prior discipline history, mastery of English, or other extracurricular abilities.  

Building Capacity Reporting.  Schools must annually establish, publish, and report the capacity for each school building under the district's control “according to procedures, criteria, and deadlines established by the Nebraska Department of Education.”  This requirement specifically references “building” capacity.  You are not required to publish or report other capacities you set.  

Denied Application Reporting.  Also, beginning on July 1, 2024, each school will have to report to NDE information related to rejected applications.    NDE has indicated that it will require school districts to report (1) the number of option applications denied; (2) an explanation of each denial; and (3) if the applicant stated there was an IEP or student has been diagnosed with a disability, whether the district provided the application the specific reason for denial.  NDE must also collect specific information from learning community schools.  After discussions with NDE, they will do some form of data collection for this information in 2024 prior to the July 1 deadline, so you should be aggregating this now for all applications you deny.   

If you are a KSB policy subscriber, we updated policy 5004 in June to reflect these changes, and we sent out the memo, sample resolution, and sample denial letter yesterday.  If you have any questions about option enrollment or would like a copy of the resolution, please email ksb@ksbschoollaw.com or call us at (402) 804-8000.

Do You Want the Good News or the Bad News First? Substantial Changes May Be Coming to the FLSA

As school lawyers, we LOVE to prattle on about the Fair Labor Standards Act.  Don’t believe us?  Check out here, here, here, and here for a PTSD flashback to prior blog posts.  For those of you who have been around here long enough (“long enough” defined as 2019), you might remember the hubbub about the Obama Administration’s new overtime rules which proposed to require employers pay at least $913 per week in order to treat an employee as exempt for overtime purposes.  This proposal was kiboshed when a Texas judge in the Fifth Circuit blocked the rule.  Under the Trump Administration, the minimum salary for exemptions was increased to $684 per week from $455, which is the current salary basis test today. 

Fear not, politics are the gift that keeps on giving for school lawyers!  The Biden Administration announced a notice of proposed rulemaking that would “restore and extend overtime protections to 3.6 million salaried workers.”  The proposed change would increase the salary basis test to $1,059 per week, the equivalent of $55,068 per year.  Currently, the proposed rule is in the 60 day comment period which closes November 7, 2023.  If the rule is adopted, we anticipate there will be court challenges to the increase, similar to the Obama Administration era.  The bad news?  This change will certainly result in schools either increasing salaries for individuals who currently qualify as exempt or moving those individuals to an hourly pay rate with overtime at time and a half.   

You might be wondering, what is the good news?  The good news is the rest of the test to determine if an employee is exempt for purposes of overtime remains the same: 1) the employee must be paid a salary, 2) the amount of salary paid must meet the minimum specified amount (currently $684 per week), and 3) the employee’s job duties must primarily involve executive, administrative, professional, or computer employee duties as defined by the duties test.  Reminder, you cannot simply pay someone a salary to avoid the overtime rules.  The employer bears the burden of correctly classifying an employee as exempt under the FLSA.  (Is now a good time to recommend a FLSA audit?  Look at whose smiling face you can have visit your school!)  These new regs do continue to treat teachers and community member coaches as  exempt under the FLSA, even if their salary does not meet the new threshold.  This is a longstanding tradition in the FLSA that would really complicate things like collective bargaining if changed.  Thankfully, that isn’t part of the proposal, so if the proposed changes are implemented it would mostly affect classified staff  

As always, we will send out another blog post when the DOL finalizes the rule.  If your District has any questions about the FLSA or these proposed regulations, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at 402-804-8000 or by sending all of us an email at ksb@ksbschoollaw.com.

P.S. For all the business officials and HR people reading, the U.S. Citizenship and Immigration Services released an updated I-9 Form on August 1, 2023.  You can use old I-9 forms until October 31, 2023 but starting on November 1, 2023, the new forms should be used for new hires.  One of the changes on the form allows remote examination via E-verify.

Because I Got High: Medical Marijuana and the Workplace

Who can forget the year 2020?  We had the COVID-19 pandemic, the Harvey Weinstein verdict, the death of NBA star Kobe Bryant, and oh yea - in South Dakota, we had Initiated Measure 26 pass which legalized medical cannabis.  (Talk about a lot of big things happening!)  Initiated Measure 26 became codified in state law at SDCL 35-20G.  This new law impacted school districts in the state as districts passed policies addressing the use of medical marijuana, both for students and staff.  One concern we regularly hear in our office relates to the use of medical marijuana by staff.  Legally, what, if anything, can the school district regulate?  Here are the top questions we receive.

Does a staff member have to disclose to administration if the staff member has a medical marijuana card?

A school may ask on an employment application if the staff member has a medical marijuana card.  If the employee does not answer truthfully, that can be grounds for termination.  However, South Dakota law states: “A cardholder may not be refused enrollment by a school or a lease by a landlord, or otherwise be penalized by a school or landlord solely for the person's status as a cardholder, unless failing to do so would violate federal law or regulations or cause the school or landlord to lose a monetary or licensing-related benefit under federal law or regulation.”  (emphasis added). 

What can an administrator do if the administrator suspects a school employee is high or impaired at school?

If an administrator has reason to suspect a staff member is high or intoxicated, the administrator can request the staff member report to a clinic or hospital to receive a drug test.  If the staff member refuses such a request, the administrator can discipline the staff member for insubordination.

Should the district have a provision in the staff handbook regarding medical marijuana?

Yes, districts should review their staff handbooks and consider including a provision regarding medical marijuana.

Is medical marijuana a reasonable accommodation under the ADAAA?

Because medical marijuana is an illegal drug under federal law, there is no duty to provide an accommodation as the ADAAA does not apply. 

What about safety sensitive positions? (Such as those driving students, bus drivers, etc.)

For those individuals such as bus drivers, the U.S. Department of Transportation's rules apply regarding drug testing.  Those individuals must pass drug tests regardless of the South Dakota law allowing medical marijuana. 

If you have questions about employment law, please contact us at (402) 804-8000 or send everyone an email at ksb@ksbschoollaw.com.

Let’s Get It Straight, Rules are Great(!)? An Overview of Recent Rule 51 Compliance Considerations

In recent years, we have noticed an uptick in Rule 51 complaints against school districts.  As a refresher, Rule 51 is the administrative code for special education enforced by the Nebraska Department of Education.  This summer, our awesome law clerk Amanda went through all the recent final investigative reports posted on NDE’s website and analyzed the data.  In general, the percent of investigations requiring corrective action has increased substantially from the 2020-2021 school year through the 2022-2023 school year.  From our analysis, we noticed several interesting trends and compliance areas schools should review.  

First, prior written notices continue to be an invaluable tool for special education teachers, administrators, and lawyers.  In 2022-2023, 37% of the number of issues flagged in the Procedural Safeguards section of Rule 51 (section 009) related to prior written notice.  The majority of the investigative reports surrounding this subsection were geared towards instances when a PWN should have been provided and not about the actual substance of the PWN.  As a refresher, the NDE tip sheet provides that a district must send a PWN when it “proposes to initiate or change the identification, evaluation, or educational placement of [a] child; proposes to initiate or change the provision of a free, appropriate public education (FAPE to [a] child; refuses to initiate or change the identification, evaluation, or educational placement of [a] child; or refuses to initiate or change the provision of FAPE to [a] child.”  The investigative reports provided instances where PWNs were not provided as legally required such as: a district refusing to provide transportation, when amendments to the IEP occur, when there is a change of placement, including a change of placement relating to student discipline, and when the district denies a parent request for services such as additional paraprofessional support or therapy.   

In general, the IEP section of Rule 51 (section 007) represents the area with the largest investigative draw.  Specifically, 51-007.07, IEP development, had the highest area of corrective actions required.  Of those reports, six involved corrective action regarding the supplementary aids/modifications provided in the IEP.  What does this mean for schools?  IEP teams must include the projected date, frequency, location, and duration in the program modifications and accommodations sections of the IEP.  Because of the current SRS programming, this means you will likely need to create an Excel spreadsheet or Google sheet to copy and paste into the IEP which includes the required data.  Simply listing “as needed” is not legally sufficient.  In addition to this focus area, schools should continue to focus on goal writing, baseline data, and measurement of goals. 

Another area of compliance under sections 007.02C and 007.02D is the accessibility of a student’s IEP to each “regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.”  This includes informing the teacher of “his or her specific responsibilities related to implementing the child’s IEP.”  Schools must proactively ensure all teachers and service providers (including substitute teachers) receive and review a student’s IEP.  It is not legally sufficient to simply place a copy of the student’s IEP in each staff member’s mailbox.  We recommend reviewing your internal procedure for informing staff of IEP responsibilities.     

If you have questions about these issues or would like to schedule a special education training/PD session for your general education staff, please contact Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or send us all an email at ksb@ksbschoollaw.com.

Partial Enrollment, Whole Confusion: Partial Enrollment of Homeschool Kids in South Dakota

Two years ago, the South Dakota legislature enacted substantial changes to the way public schools handle students who choose to homeschool.  If you’re unaware of this, we hope you can make some room for us under that rock you’ve been living under as it must be a delightful place!

When the new rules were first implemented, many educators and school attorneys in the state discussed how there could be unforeseen consequences to these rules, and much of the focus surrounded how activity participation for homeschool students would play out.  While those questions have hardly subsided, recently we’ve been receiving more questions regarding homeschool students who qualify for special education services who wish to partially enroll in a public school. 

The Individuals with Disabilities Act requires states to pass regulations that comply with its requirements, which South Dakota has done in ARSD 24:05.  The Department of Education has taken the position that the IDEA and South Dakota’s regulations require only that public schools evaluate non-enrolled students in their district for special education and special education related services and make an offer of a free and appropriate public education.  However, the Department has stated that schools do not need to offer those services if the student does not enroll in the school district.  The Department’s guidance can be viewed here. 

So what happens when a student qualifies for services, and parents wish to enroll but only partially?  We would recommend schools reach out to their attorney on the subject, but remember that a “free and appropriate public education” is not a la carte.  Think of a school that has made an offer of FAPE to a student subsisting of services A, B, and C.  However, parents only wish to receive service C and enroll partially.  In this scenario, schools should analyze whether complying with such a request would be denying that student FAPE under the IDEA (even if it’s what parents request – remember schools’ obligation under the IDEA is to provide the student with FAPE, not to give the student what the parents select).  Although we work closely with the Department of Education on special education matters, schools should be cautious about placing too much weight on informal statements from the Department.  These statements are not binding against  a parent in a due process hearing or in federal court. 

If you are interested in hearing more about this subject, KSB recently recorded a webinar touching on the subject as well as other enrollment issues.  We have received so many questions about partial enrollment of special education students, we have decided to allow all of our blog subscribers to access this webinar for free here! 

If you are interested in more KSB webinars, you can sign up for our monthly series or special education series here as well.  If you have specific questions about partial enrollment issues or about any other legal issue that your school district is facing, feel free to reach out to any of the KSB attorneys – Tyler, Sara, Karen, Steve, Bobby, Coady or Jordan. 

I Thought We Were Done with Executive Orders after COVID! Nah…

Yesterday, Governor Pillen signed Executive Order 23-16, establishing the “Women’s Bill of Rights.”  It’s pretty short; you can read the whole thing here.  The EO picks up where LB 575 left off, defining “sex”, “female” and “male” in the context of gender identity.  (As a reminder, LB 575 is a legislative bill that was introduced last January and that seeks to adopt the Sports and Spaces Act, but has yet to pass.)  More on that shortly.  With conflicting federal court opinions, new Title IX regulations on the way, and everything else out there, about the only missing ingredient in this confusing swirl was a gubernatorial executive order.  Well, here we are.

As school lawyers, we strive to cut through the politics surrounding these (and other) issues and instead focus on the anticipated legal impact of the specific actions being taken.  In that vein, what is notable about this EO is not so much what it says, but what it doesn’t.  Despite the subtitle (“Establishing a Women’s Bill of Rights”), the EO doesn’t lay out any new rights that it creates in favor of women.  Despite some of the press surrounding it, the EO does not explicitly direct K-12 schools to take any specific actions regarding interscholastic athletics or sex-segregated facilities like bathrooms and locker rooms.  And, as most of you are probably already thinking, many (all?) of those issues are likely governed by the federal Title IX statute and regulations and the court decisions interpreting them.  So, candidly, we’re still considering what the legal impact of the EO’s brief directives will be for K-12 school districts, if any.  So, what does the EO actually say?

It requires “all state agencies, boards, and commissions” to adhere to the definitions of male and female based on reproductive organs at birth when making rules and adjudicating cases.  The plain reading of the EO means that requirement applies only to state-level entities, not political subdivisions like schools.   

The EO does not explicitly dictate that schools must handle things like athletics, locker rooms, or bathrooms in any particular way.  By the same token, the EO does not provide schools with any sort of legal protection if they are sued by students and families over these issues.  The only section that specifically mentions schools says that for purposes of collecting vital statistics to comply with antidiscrimination laws, schools and other entities have to define individuals as “male” or “female” based on reproductive organs assigned at birth.  It’s not clear what vital statistics data means in this context or how that would change the application of Title IX or any other laws with their own definitions and requirements.  

Our advice to schools remains unchanged: unless and until action is required, we believe the best legal approach is to work with students and families who are facing transgender-related issues on an individual basis.  Passing an explicit policy one way or the other isn’t legally required.  At  best, you’ll make the news; at worst, you’ll find your school in litigation.  This EO doesn’t help clarify much, nor has it changed our thinking--at least not yet.

For now, we recommend sitting tight, at least until it’s clearer what this EO was intended to do and how it will be interpreted.  If you have any questions about the EO or any other issues relating to gender identity and the law, let us know!  You can always contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or  by sending all of us an email at ksb@ksbschoollaw.com.

The Blog Post You Wait All Year For - The KSB Husker Football Predictions are Here

We know you have all been waiting to read our spicy (and sometimes offensive . . . looking at you Jordan) Husker football predictions.  For those of you who are new to KSB or don’t recall last year’s post, it was determined that Steve is likely The Most Amazing Man Alive Jesus Nostradamus or should be offering services as a fortune teller based on his scarily accurate predictions.  Check out last year’s post here.

KAREN’S PREDICTION:

Let’s be honest. Nebraska football is like a weird aunt in your family who used to be married to a nice, but boring guy. She ditched him because she thought she could do better, but instead she has brought one weird dude after another to your family Christmas. Remember how she started out with that arrogant loser from back East? Or the angry guy who got into a fight with grandma and kicked her cat? What about the year she was dating a guy the same age as grandpa? Then last year was the worst – she showed up with the party animal she knew from her college days who got drunk, spiked the eggnog and then left before we were done opening presents. This year she is bringing someone who seems normal, but the night is young and who knows what is going to happen? In the end, we all know that the real problem is not the boyfriends. It’s your aunt. She hasn’t aged well and definitely needs some therapy to address her internal issues. Until then, no new boyfriend is going to work out well.

And friends, that sums up my feelings about Matt Rhule and our Nebraska Cornhusker football team.

Could the 3-3-5 defense work in the B1G? Maybe, if we had an athletic linebacker corps. But we only have two returning players in this position group (and last year we had one of the worst passing defenses in the league).

Is Jeff Simms talented enough to lead the Huskers at quarterback? Probably. But just who is going to step in to fill the QB slot when Simms inevitably is injured on an RPO? Chubba Purdy, God love him, is going to get thrown into the fire at some point this year and we all remember how that went in 2022.

Finally, is the offensive line REALLY going to be able to win the battle in the trenches? Come on, folks, let’s be real. I love the kids who will likely be starting (doesn’t Teddy Prochaska seem like a big lovable puppy who hasn’t quite grown into the size of his paws yet?) but Nebraska has neglected this crucial area of recruiting for at least a decade.

Week by week will look like this:

Minnesota: Loss (even a blue moon won’t help us here)

Colorado: Win (please sweet Jesus do NOT let us lose to Neon Deion)

Northern Illinois: Win (I’m not THAT down on Rhule’s squad)

Louisiana Tech: Win (see above, but don’t get cocky, Huskers)

Michigan: Loss (pray for the KSB faithful with two snarky Wolverines in our midst)

Illinois: Loss (this is where stuff gets real)

Northwestern: Win (at least one family member is more messed up than us)

Purdue: Win (this is a toss up, but Memorial stadium will make the difference)

Michigan State: Loss (see above, only we are on the road)

Maryland: Win (c’mon, their mascot is a TURTLE for God’s sake)

Wisconsin: Loss (Mike Leach is gonna be laughing from the beyond unless I’m wrong about our talent with the 3-3-5, which is designed to deal with modern offenses like the Air Raid)

Iowa: Loss (Hawkeyes will be desperate to save Brian Ferentz’s job and hungry to avenge last year’s loss)

That’s it. The good news is that Nebraska will get to 6 wins and make a Bowl game for the first time in eight years. The bad news is it might be in Detroit.

And maybe, just maybe, after spending a Christmas away from her family in the frozen wasteland that is Michigan, Aunt Nebraska will come home, make a new year’s resolution to get herself figured out, and make this new relationship work. (But don’t count on it; there are a couple of recent divorcees from California that are coming to Christmas next year and that might make things even weirder……)

STEVE’S PREDICTION:

Before we get to 2023, can we review your 2022 predictions? Sure.

Did you predict that the Huskers would go 4-8? I sure did.

Did you tell us Scott Frost would be fired midseason? Yep.

Did you tell us that the Huskers would sh*t the bed at every opportunity? You know I did.

And did they? You know they did.

Did you really predict that Matt Rhule would be our next head coach before last season even started? Yes indeed.

Wait a minute. Wasn’t Coach Rhule employed as an NFL coach at the time you made the prediction? Yes. Yes he was.

Did Blue, in fact, Go? You know it. The second straight year in the playoff!

Is it true that everyone at KSB called you Pimp Daddy Steve after the Michigan-Nebraska game? Daddy doesn’t kiss and tell.

You are amazing! Will you marry me? Wow. Even more disappointment for you Husker fans. I married the Luckiest Girl EverTM last season! On to 2023 . . .

I did get one thing wrong last year. I told you the Husker fans would be drinking the Kool-Aid this season. Of course, they are instead drinking the Rhule-Aid. My bad. I admit - it is tempting to take a sip. On paper, Coach Rhule seems to be the most qualified coach that Nebraska has employed in a long time. True, he stumbled in the NFL, but that NFL experience surely made him a better coach. And he’s turned around not one but two college programs in his previous stops. He took two and one-win teams and turned them into 10 and 11 game winners. Remember the last time the Huskers won 11 games? Yeah, me neither, but I’m willing to bet it was before I had all this blond hair. The Husker team he has inherited isn’t nearly as bad as the Temple and Baylor teams he inherited. However, the Huskers are trying to reverse a long streak of mediocrity and stench. Under Scott Frost, the Huskers were 16-31. They had a 10-26 record against Big Ten opponents. And they were 0-14 against ranked teams. That. Is. Terrible. On the plus side, the Huskers’ schedule this season is softer than my midsection. So what do the experts have to say?

Well, in 2021, the oddsmakers set the over/under on Husker wins this year at 6. That was EASY money. Last season, Vegas set the over/under at 7.5 regular season wins. It was funny then. It’s even funnier now. How could the experts have been so obviously wrong? But this year, I’m seeing the number set at 6.5 wins. I have to be honest - I don’t have a great feel for this year’s Husker team, but that number did not make me laugh out loud. Perhaps that is good news for the Huskers and the “experts” are getting closer to predicting the correct win total? Let’s take a look.

The Huskers open the 2023 season with a loss to a bunch of Boat Rowers. But they bounce back with three straight wins against Colorado, Northern Illinois, and Louisiana Tech. Oh, 3-1, and the Rhule-Aid drinkers will be hootin’ and hollerin’! But wait. It’s time for the game we’ve all been waiting for - the Michigan game. The recently reinstated Jim Harbaugh is bringing the best damn team in the Big Ten to Lincoln, Nebraska. It’s not going to be pretty. But don’t worry. Coach Harbaugh will soften your loss with some free cheeseburgers (but you gotta promise not to tell the NCAA). You then hit the stretch of the schedule that will make or break the Huskers season. Illinois. Northwestern. Purdue. Michigan State. Maryland. Once upon a time, Nebraska would have demolished these teams. Heck, just seven years ago they probably would have beaten them all. I predict they go 3-2 in this stretch, bringing their record to 6-4 headed into the final two games. That leaves the two most difficult games on the schedule for me to predict. The Huskers travel to Camp Randall Stadium to face the Wisconsin Badgers who also have a hot new coach of their own. The Huskers put up a valiant effort, but ultimately fall short. They then head home to face Iowa. I wouldn’t mind seeing a Husker victory. I mean, it’s Iowa and, let’s face it, the last good thing to come out of Iowa was Bob Feller. The last five matchups with them have been decided by one score or less. And last year, the Huskers finally managed to pull out a win against Iowa and end a seven-game losing streak against them. Unfortunately for Husker fans, the Hawkeyes, led by former Wolverine quarterback Cade McNamara, exact revenge for last year’s loss and pull out a victory at Memorial Stadium. Final record: 6-6. That’s right folks; you better take the unders again this year! But at least you’re bowl eligible!

BOBBY’S PREDICTION:

It looks like most of my colleagues are going to print money by fading Nebraska’s regular season win total in Vegas (currently over/under 6.5 wins over 12 games).

Maybe they can get some Iowa players to put the bets in for them.

Unfortunately, my gut tells me my colleagues are probably right. There are just so many variables with this team and this schedule. Many of Nebraska’s games are against teams with new coaches and/or coordinators. Watching Kirk Ferentz fire his son will be amusing, too. Normally we should be thrilled about a relatively weak schedule against so many other teams with big variables, but we’re one of them.

If you accept the objective fact that Frost was the worst coach in program history (on and off the field), you could be more optimistic. A competent coach makes a bowl game last year, and we return a lot of starts on both sides of the ball. Plus if we’re all honest, the B1G West is pretty bad. But this year will be marred by Frost’s complete failure to identify the right talent, recruit it, and develop it. We’re incredibly thin at critical positions (DL, WR, OL, QB). I’m buying what Rhule is selling, but he just won’t have the bought-in, developed depth this year.

Minnesota: L. On the road, primetime game, against a bald dweeb who has a pretty solid program established. They’ve started slow before, but it’s just too soon, kinda like Steve’s parole.

Colorado: W. !*#& them. Both teams are rebuilding, but if the mercenary style works in college football for Neon, it’ll be the first time. I don’t buy it. I wonder if his Louis Vuitton cowboy hat comes with a free belt.

NIU and LaTech: W and W. One thing I feel better about with Rhule is games like this. I expect a fast start and well-prepped team, because he’ll want to get lots of guys reps, avoid young transfers, and won’t have letdowns in his first 2 home games.

Michigan: L. I’m sure Harbaugh is pissed after being jilted by the NFL and wetting his khakis over the 3-game suspension. But this team will be tough, because Jim is still auditioning for that NFL job next year.

Illinois: L. I don’t like it, but Bielema is a top-3 coach in this conference. He looks like your DrUncle, but he’s a solid coach. We'll be better disciplined, but they'll be more disciplined.

Northwestern: W. I think it was going to be a tough year for NW even with Fitz at the helm. I think Rhule will show progress as the season moves along.

Purdue: W. I have no clue what this team will look like after a complete identity shift from Brohm to Walters. As the source of many of our should-have-won games the last few years, I think we eek it out.

Michigan State: L. It’s possible Nick Saban is the only coach who still wins after making $10 million a year. Jimbo and Mel Tucker filled their diapers after big paydays, but I think Mel is a decent coach who will have a better year.

Maryland: L. They will get no preseason attention and sneak out 7ish wins. Nebraska will be one of them.

Wisconsin: L. I think this will be a close one, but they’re just better up front than we will be, and a mid-November win in Madison just isn’t going to happen.

Iowa: L. This one really pains me, but I think Iowa will take as much pleasure in us not making a bowl as we took last year keeping them out of the conference title game.

Overall: 5-7. I can see 3 other games we could win, and I'm betting the spreads will be a touchdown or less. But Rhule will need a full year to suck all the poison out of this snakebitten team.

SHARI’S PREDICTION:

I’ve lost a lot of interest in Husker football over the last couple of years. Let’s be honest, there hasn’t been that much to cheer about. We’ve been on the same cycle for how long now? Hire a coach, lots of hype, complete disappointment and a large payout to move onto the next coach. I think the Rhule era will be similar. I think the transfer portal and NIL have ruined college football. It’s hard to build team chemistry when one player doesn’t like a coach or isn’t getting enough playing time, they move on. With all that being said, I’m still a Husker fan and wish them the best. I will tailgate, go to a few games and hope for the best, while also cheering for the Fighting Irish! Here are my predictions: Minnesota - loss. Colorado - win. Northern Illinois - win. Louisiana Tech - win. Michigan - loss. Illinois - win. Northwestern - win. Purdue - win. Michigan State - loss. Maryland - loss. Wisconsin - loss. Iowa - win. We will end the season 7-5.

COADY’S PREDICTION:

I am guzzling the Rhule-Aid! I am genuinely enthusiastic about the beginning of the Rhule era and what a fresh start will bring our Cornhuskers. I acknowledge that good-feeling speeches do not a football team make. That being said, Coach Rhule couldn’t have struck each and every chord better since his hiring was announced. The proof is obviously in the pudding, but I have faith (without any evidence) that things are on the right track.

The tough thing with this year’s predictions, though, is that the team could be WAYYYYYY better and still such improvement may not show up in the Win-Loss column. Until Nebraska shows marked improvement in the trenches (which is a clear priority for Rhule), the rugged Big Ten is an inhospitable barren wasteland that is tough to survive. I am counting wins against Colorado, Northern Illinois, LaTech, and Northwestern. That’s it; that’s the list. I see sure losses against Michigan and Wisconsin. Every other game is a toss up in my opinion. I can literally talk myself into a 10-2 season, but see a 4-8 record as just as (or even more) likely. Still, I choose to be optimistic (‘cause this is supposed to be more fun than self-loathing, right?) and I will assume that the Huskers split games against Minnesota, Illinois, Purdue, Michigan State, Maryland, and [Tyler J. Coverdale’s] Iowa. Nebraska finishes 7-5 and the Era of Good Feelings Around Nebraska Football begins in earnest. Bring on the Gophers!!!

JORDAN’S PREDICTION:

As someone who has spent plenty of time on the golf course with Bobby, I know what it looks like to watch someone talented fail to live up to their potential. It's a feeling Nebraska fans are all too familiar with after watching Scott Frost pull the program deeper into mediocrity after empty promises of par-saving putt. And so, here we are, where it feels like the Huskers and their coach can only be graded on the generous curve of low expectations. Any performance demonstrating the most basic fundamentals through the fourth quarter (or even a modicum of pride) will be heralded as the first signs that Nebraska is “back”.

And that is the perfect environment for Matt Rhule to repair his reputation and restore his confidence after a tough stint in the NFL. His teams won’t have to be that good (and they won’t be), they’ll just have to be competitive (and they will be), and he’ll be able to stick around as long as he likes (until a real blue blood opens up). This long, just better than mediocre marriage will begin with a first season full of early, moral victories (Colorado, Northern Illinois, Louisiana Tech, and Illinois) before tapering off into hopeful losses, and ending with a fifth and final win at home against Iowa to get everyone excited to be disappointed again.

TYLER’S PREDICTION:

This was difficult for me to write. For the last three years, I have structured this post around a single joke. It’s a very good joke. It’s a joke about how the Huskers could not find a way to beat a school to the east despite that school had not yet discovered the forward pass or nepotism rules. A school that at one point made the mistake of admitting yours truly, thus unknowingly condemning me to a life of defending myself against this rabid pack of Husker fans that are my colleagues.

This task wasn’t terrible for the last few years, but only because of that one joke: “Nebraska hasn’t beaten Iowa since 2014.” It was a joke that kept me going. And then Brian Ferentz took that joy away at Kinnick Stadium on November 22, 2023. I’m sure there are other people to blame. But it’s more fun to blame him.

To my colleagues’ credit, they could have been much more insufferable than they were. Anyway, the joke is now dead, as should be Brian Ferentz’ career as an offensive coordinator, but alas he remains. I can’t imagine why. It’s odd that he has the same last name as the head coach though.

So what happens, now, Husker fans? Is that a light at the end of the 25 year tunnel, or just a freight train coming to bring you back to reality?

A little of column A, a little of column B. 6-6.

Wins: Colorado, Northern Illinois, Louisiana Tech, Northwestern, Purdue, and Maryland

Losses: Minnesota, Michigan, Illinois, Michigan State, Wisconsin, and Iowa (Please let me have this last one. I truly don’t care about any other game on this schedule).

SARA’S PREDICTION:

Forgive me football gods, for I have sinned. I have continued to root for, support, and be disillusioned by the Huskers for the last thirty-three years. As we approach another Husker football season, I continue to commit the ultimate sin of every Nebraskan - optimistically thinking this football season will be “the year” the Huskers catapult to the top of the ranks. With that said, I am going to take a less aggressive approach this year with my prediction. It is more likely Santa Claus will move his operations to Brazil than the Huskers having a winning record this year.

Even while Matt Rhule might be the proverbial savior for the Huskers, I am hedging my bets with a 4-8 record. I anticipate the following losses: Minnesota, Colorado, Michigan, Illinois, Purdue, Michigan State, Maryland, and Wisconsin. I am chalking up victories against Northern Illinois, Northwestern, Louisiana Tech, and Iowa. So fellow Husker fans, let’s crack a cold one, enjoy the camaraderie of crying together after another mediocre season, and continue to get our hopes up that the Scarlet and Cream will have a winning season next year.

MATT’S PREDICTION:

Well Well Well! Back at it again GO BIG RED! Let’s get into it. New Coach again and starting at Minnesota on a Thursday night, well that’s a loss. Nebraska is following RHULES and MINNESOTA IS ROWING BOATS, I’m giving the edge to Minnesota, so LOSS. 0-1! Next they play Colorado in Boulder, I feel like Shedeur Sanders will show up against the Huskers and throw for 300 and add a rushing TD. I do think it will be a tight one like 35-31 because of the lack of defenses showing up. LOSS! 0-2! They get Northern Illinois at home, which means another tough battle for the Huskers. I feel like Jeff Sims finally wakes up and rushes for 2 TD and throws for 2 TD's and pulls off their first win of the season. 1-2! They get LA Tech at home and we watch the Blackshirts struggle against a 3-9 team a year ago, but pull off another win, which gives them a streak of 2 wins. Now Michigan comes to town. I’m sorry Husker fans this won’t be close. They lose by 28 and Jeff Sims gets benched! 2-3! They leave and play Illinois in Champaign. Like most teams nowadays Illinois has a transfer at QB and probably isn’t very good, but against the Blackshirts he looks like a man amongst boys and throws for 300 and 3 TD’s. LOSS! 2-4! I feel like Husker players have been following the RHULES through 6 games and beat a dumpster fire Northwestern team! 3-4. Here we go again with a winning streak! JK! They lose to Purdue and Jeff Sims has 2 interceptions. 3-5! They travel up north for the next game and play Michigan State. You never know what you're getting from MS, other than the QB play will be bad. This is a toss up, but I have to go with a low scoring game and the Huskers somehow lose this one. 3-6! I think Tagovailoa has a breakout game against the Blackshirts. He throws for 350 and 4 TD’S. Loss 3-7! They go back up north and lose a close one (24-21) against the Badgers. 3-8! They come back home for their last game against the Hawkeyes and lose again. Rhule might be the answer, just not this year. 3-9!

ASHLEY’S PREDICTION:

Well this may be a Hail Mary prediction from me yet again, but I have faith that this season will be better than 4-8 (maybe just slightly better).

The Scott Frost era was definitely a disappointment to say the least and Husker fans are definitely looking for/hoping for that glimmer of hope that the Husker program will once again be restored (sooner than later). Will Rhule be the coach to bring this glimmer of hope to Husker fans? I sure hope so or they will be paying another hefty buyout, if not!

I predict Nebraska will go 5-7 this season (when I really wanted to predict 6-6)! Why 5-7? New coaches coaching in the Big 10, a new QB with 30 touchdowns and 23 picks in his college career, new tight-ends, new wide receivers and a new defensive scheme. I hope these boys (big and small) are ready to move! Last season I predicted 6-6 with Scott Frost and the Huskers went 4-8, so 5-7 for Matt Rhule’s 1st season as head coach could be promising (fingers crossed) and feels safe! I highly recommend watching the 3 episodes of “A Look N” on You tube for some Husker preseason hype, if you haven’t already watched it!

And just for the record, I posted my predictions 1st this season….not last! WINNING, even if I lose (again)!

Wins: Colorado, Louisiana Tech, Northern Illinois, Northwestern and Purdue

Losses: Illinois, Iowa, Minnesota, Michigan, Michigan State, Maryland, and Wisconsin

The Great Debates of Our Time

Pepsi v. Coke?  Hermione v. Ron?  Star Wars v. Star Trek?  Karen v. Bobby?  While there are many pop culture debates brewing online, the newest debate in the Nebraska education landscape is the impact of LB 753, the Opportunity Scholarship Act.  As a refresher, LB 753 was signed into law by Governor Pillan on May 30, 2023 and provides $25 million in tax credits to those who donate to a “scholarship granting organization.”  The “scholarship granting organization” will then distribute scholarships for students to attend private and parochial schools.  

Two organizations have formed during the debate of this bill: Support Our Schools Nebraska and Keep Kids First.  Currently, there is a petition circulating across the state seeking signatures to place the repeal of LB 753 on the ballot in November 2024.  Why does all this background information matter to school lawyers? (You might be thinking, “Because lawyers are boring, duh!”)  In fact, we have had several schools contact us for guidance about school employees who wish to  assist in the political process.  It is important for school districts to remind staff of the Nebraska law prohibiting use of public resources to support or oppose a ballot initiative.  

Section 49-14,101.01 provides the general statutory language for use of public resources in connection with the political process.  It specifically states: “A public official or public employee shall not use or authorize the use of personnel resources, property, or funds under his or her official care and control … for personal financial gain.”  The law goes on to prohibit public employees from using public resources for the purpose of campaigning for or against a ballot question.  The Nebraska Accountability and Disclosure Commission has expressed the opinion that: “A public…employee may express his or her position with regard to a ballot question [or candidate] and may even urge voters to vote for or against…provided that government personnel, resources, property or funds under that official's care and control are not used for that purpose, and provided further in the case of a public employee that he or she does not engage in such political activity during office hours or when otherwise engaged in the performance of his or her official duties.”  In addition to state law, Rule 27 provides that educators have an obligation to the public.  Specifically, “the educator shall not use institutional privileges for private gain or to promote political candidates, political issues, or partisan political activities.” 

What does this mean practically for schools?  School administrators should remind staff that they are prohibited from campaigning for or against one of the organizations involved in the debate surrounding LB 753 when it involves school resources or time.  To illustrate, here are a few examples.

Example #1: District teacher sends an email blast to all of his friends and co-workers using his school e-mail in support of signing the petition for Support Our Schools Nebraska.  This is a violation of state law and Rule 27.

Example #2: District teacher shares the Keep Kids First Facebook page on the teacher’s personal Facebook page.  The teacher does so during the school day.  This is a violation of state law and Rule 27.

Example #3: District administrator sends an email to all staff voicing her opinion about LB 753 and stating the action she wishes her staff to take.  This is a violation of state law and Rule 27.

There is a lot of political activity the school employees may be able to engage in—including advocating for or against political candidates or ballot initiatives—so long as the employee does not use school district resources to do so and does not do so on school time.  We believe that ensuring that all school employees are aware of these limitations will help avoid some of the negative consequences that can arise under the rules and laws discussed above.

If you have any questions about these or other issues, please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or all of us at ksb@ksbschoollaw.com.

The 411 on FERPA Protections for Student Health Records

Ahhh, August.  The month filled with back-to-school happenings, county fairs, and the glorious return of Husker football.  As you prepare your staff for the upcoming school year, we recommend a review of the Family Educational Rights and Privacy Act (FERPA).  In April 2023, the U.S. Department of Education’s Student Privacy Policy Office produced two new guidance documents to educate schools on the privacy of student health records.  The guidance is available here and here.  While none of this guidance is new, the Department of Education noticed many schools were grappling with the nuances of student health records and also the confusion with HIPAA.  

As a quick overview, FERPA is a federal law that protects the privacy of students’ educational records and applies to school districts which receive any type of federal funding.  (Hint, this law applies to all K-12 public schools in Nebraska and South Dakota.)  Under this law, personally identifiable information from a student’s education record may not be disclosed without prior written consent from a parent unless an exception applies.  Parents are also given the opportunity to inspect and review educational records and amend educational records if information relating to the student is inaccurate.  Schools must notify parents of these rights annually.  If you are a KSB policy subscriber, this notice is provided in our student handbook.  To note, FERPA rights transfer to a student when the student turns 18.

One important distinction made by FERPA is the definition of “education records.”  Education records are defined as “records that are: (1) [d]irectly related to a student; and (2) [m]aintained by an educational agency or institution or by a party acting for the agency or institution.”  34 CFR 99.3.  Student health records, in some circumstances, may qualify as education records under FERPA.  For example, a health record created and maintained by a school nurse would be subject to FERPA.  However, information obtained through personal knowledge or observation is not an education record unless the school official uses the information to produce an education record.  

Additionally, FERPA and HIPAA are distinguishable.  Student health records that are considered education records under FERPA are excluded from the definition of protected health records under HIPAA.  In general, school districts are not HIPAA covered entities.  For more guidance on the application of HIPAA and FERPA to student records, the U.S. Department of Health and Human Services and U.S. Department of Education released a Q&A here.  We have experienced situations where school nurses are hesitant to share student health information due to HIPAA concerns.  As HIPAA is not applicable when records are kept for educational purposes, school nurses should consider FERPA exceptions which allow transmission of education records without parental consent in situations such as: disclosure to school officials who have a “legitimate educational interest” in the information, disclosure involving a health or safety emergency, and disclosure to comply with a subpoena.

Please reach out to any of us at ksb@ksbschoollaw.com or give us a call at 402-804-8000 to discuss any questions you may have about FERPA compliance.      

KSB Webinar Series 

As we gear up for school, the KSB crew has developed an exciting slate of webinars for this upcoming year.  For Nebraska clients, click here and South Dakota clients click here to review the options and topics for 2023-2024.

Half-Yearly Report Card: The Newest Legal Cases Impacting Schools

The year 2023 has been a wild ride thus far for both pop culture and school law. The first six months had Prince Harry’s tell-all memoir about the life of the royal family and the iconic Barbie movie just recently appeared in theaters; we can only imagine what the rest of 2023 will hold. Just as pop culture has been spicy the last six months, the courts have also provided endless fodder for school attorneys. Let’s break down the recent cases which impact schools, and what they mean for you.

303 Creative LLC. v. Elenis, 143 S. Ct. 2298 (2023).

This is a free speech case SCOTUS decided on June 30, 2023. The case involved a graphic designer in Colorado who sought an injunction to prevent Colorado from forcing her to create websites promoting weddings which defied her beliefs that marriage should be a union between a man and a woman. The Court held that the Free Speech Clause of the First Amendment prohibits Colorado from forcing the designer to create a message which the designer disagrees with. The Court specifically referenced cases involving government compelled speech such as Barnette (the pledge of allegiance case). The Court reiterated the protections outlined in the First Amendment such as the protection of an individual’s right to speak one’s mind, including on the internet. As stated by the Court, “Nor, in any event, do the First Amendment’s protections belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive.”

What does this mean for schools?

While this case was decided on a narrow exception, it is important to note schools need to make sure they are not limiting employee free speech. The Pickering-Connick Test still applies and says that the First Amendment protects an employee’s speech if the employee speaks 1) as a citizen, 2) on a matter of public concern, 3) and not pursuant to the employee’s "official duties,” unless the school can show that it’s need for efficient operation, harmony in the workplace, and effectiveness of the employee outweigh the employee’s rights.

Groff v. DeJoy, 143 S. Ct. 2279 (2023).

This is a Title VII case SCOTUS decided on June 29, 2023. A USPS mail carrier, Gerald Groff, who occasionally was required to deliver packages on Sundays due to an Amazon fulfillment contract with USPS, argued that Sunday should be devoted to worship. He sued under Title VII of the Civil Rights Act of 1964 after he received discipline by USPS for failing to work on Sundays which resulted in his ultimate resignation. In general, Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in an undue hardship on the employer. SCOTUS held that to show an undue hardship, Title VII requires the employer to provide that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. The Court did not define what “substantial costs'' look like. With this decision, the Court ultimately increased the burden employer’s must show to deny a request for a religious accommodation--albeit raising it from the old standard, which had been anything more than a de minimis (i.e., trivial) burden.

What does this mean for schools?

If you receive a request for a religious accommodation under Title VII, you must conduct an analysis on the reasonableness of the accommodation and whether it will create an undue hardship on the school. This analysis should look at things like productivity, employee morale, cost, etc. We highly recommend calling your school attorney to walk through this analysis before denying a request. (We promise it will be cheaper in the long run.)

Counterman v. Colorado, 143 S. Ct. 2106 (2023)

Decided on June 27, 2023, Counterman addressed true threats under the First Amendment in the context of a criminal prosecution. In this case, Counterman sent hundreds of Facebook messages to a local singer, C.W. Counterman and C.W. had never met nor did C.W. respond to any of Counterman’s messages. Counterman’s messages contained a mixture of innocuous (but creepy) comments and also threats such as “You’re not being good for human relations. Die.” These messages caused C.W. to live in a constant state of fear and impacted her daily living. C.W. made a report to local law enforcement who charged Counterman criminally under a Colorado statute. Counterman argued that his speech was protected under the First Amendment and that the messages were not “true threats.” The Supreme Court had to decide whether the First Amendment requires proof that the defendant had some subjective understanding of the threatening nature of the defendant’s statements, in order to avoid a “chilling effect” on speech made by unwitting speakers. The Court adopted a recklessness standard which means “[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

What does this mean for schools?

In general, we believe there is a good argument that this case does not necessarily affect student discipline cases better handled under the Tinker standard. Because there is no criminal sanction triggered in student discipline, such as with Counterman, we like a school’s argument that the chilling effect on speech is mitigated. As always, for disfavored student speech or conduct that may implicate First Amendment protections, you should focus on gathering and documenting the evidence of disruption.

One of the great things about school law is that it is always interesting. One of the not-so-great things is that it is always changing, and more than ever cases outside of the school context seem to implicate things we’re all facing inside of schools. We do everything we can to keep our clients informed about developments in the law, which has been and will continue to be a wild ride in 2023-24. If you have questions about these decisions or any other emerging area of education law, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com.

KSB Webinar Series

As we gear up for school, the KSB crew has developed an exciting slate of webinars for this upcoming year.  For Nebraska clients, click here and South Dakota clients click here to review the options and topics for 2023-2024.

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.