It’s Title IX Time…Again!

For almost two years education lawyers have been telling schools to be ready for a paradigm shift in Title IX.  Last Friday (April 19) the doomsday clock struck midnight and the U.S. Department of Education released the final version of its Title IX regulations.  This new set of rules will change the landscape of Title IX, making huge revisions to the Trump administration regulations from 2020.  These new regulations are effective August 1, 2024.  We have scheduled a three-hour webinar for June 25 beginning at 9:00 CST that will review the regs in detail (with all of the snarky humor that you have come to expect from KSB).  If you have already registered for our 23-24 Quarterly Webinar series, you are all set.  If you haven’t registered yet, you can do so here.  

Here is the TL:DR about the new regulations: overall they will be better for schools, staff, parents, and students.  There’s better flexibility and more options to appropriately address the wide range of ages and legal requirements in K-12 schools.  Plus, in most cases, you’ll be able to resolve a Title IX complaint with 1-2 administrators compared to 3-5 different people under the existing regulations.  There are significant implications in the regulations for how schools serve LGBQTIA+ students, and the KSB lawyers are working to create policies and procedures that will help schools navigate their obligations, fully understanding federal court cases and state Attorney General opinions are all over the place.  Take a deep breath and finish your year strong--let us worry about the technical stuff for a few weeks.

For now, here’s what you need to know to plan for your implementation:

All Staff Training Requirement: The new regulations required that all staff – certificated, classified, contracted staff, volunteers, and even board members – be trained on the basics of sex harassment, reporting obligations and related Title IX issues.  KSB will again have on-demand training options available for your staff.  Thankfully for all of us, this training should be shorter than the training you had to take for the 2020 regulations.  More info to come on that.  We’re also happy to provide in-person training for your staff.  

Title IX Team Training: Two pieces of bad news here, and one piece of great news.  The first bad news is that any administrator who might deal with sex harassment is going to need training on the new regulations.  The second piece of bad news is that you’ll need to have at least three different individuals trained on the new regulations available to your district.  The great news is that training for all three individuals will be much shorter than the old training.    

Some ESUs have inquired about Title IX team training for member schools, and some schools are interested in hosting regional training with a few neighboring schools.  If you’re interested in your choices for in-person training for staff and/or your Title IX team, contact Shari (shari@ksbschoollaw.com) for options, pricing, and dates.  August and September are filling up fast, so reach out to Shari soon if you’d like in-person training.

Policies/Handbooks: More good news!  There is no requirement to have the FULL Title IX policy in all of your handbooks!  You will have to post an updated nondiscrimination notice on your website, in handbooks, and a few other places, but it’s pretty short.  We plan to get our policy service subscribers what they need so that it will not impact your normal process for updating policies and handbooks this summer.  We anticipate sharing all of our 2024 policy updates with subscribers toward the end of May.

That’s it for now!  Much of the nationwide chatter is “hurry up and get started on Title IX!”  We view it a bit differently.  We know that the next few weeks are already incredibly busy for school staff.  These new regulations do not need to derail the end of your school year.  There’s certainly plenty to do to prepare for the August 1 effective date of the new regulations, but we’re going to use the flexibility in the new regulations to make things shorter, simpler, and easier to administer.  If you have questions about the current regs or new regs or just want to talk through a plan for your school over the next few months, give one of us a call or drop us a line at ksb@ksbschoollaw.com.  Otherwise, we’ll see you all on the webinar on June 25 at 9:00 CST to walk you through these new regulations in detail.

Hey Now! Don’t Neglect Federal Law (Not just Title IX!)

Here we all were minding our own business, and the federal Department of Education drops the new Title IX regulations on a Friday! (How rude!)  Don’t worry, this post is NOT about new Title IX regulations.  However, we did want to mention them because the news is out there.  Here’s our advice: take a deep breath and don’t worry about the new regulations right now.  We’re on it.  There is an August 1, 2024 effective date.  Districts have time to change their policies this summer and be ready to comply as the school year begins.  One thing you should plan for now is the requirement that all staff members be trained on Title IX.  Overall there are quite a few positive changes for schools and a few that will be tricky but doable.  It’s about 55 pages of regulations and 1,520 pages of guidance that we are reading so you don’t have to! We’ll put out some preliminary thoughts next week, but our last KSB quarterly webinar will take a deeper dive into the new Title IX regs.  It is scheduled for June 25 from 9:00 to 12:00 CST.  If you aren’t already registered, you can use this LINK and get registered to join the fun (?) of exploring the new regs in more depth.  

Now, onto the original reason for this post, a quick review of the McKinney-Vento Homeless Assistance Act.  We have received a rush of calls recently from school administrators asking about students whose living situations are in flux or have been kicked out of their home when the student turned 18.  While it isn’t always easy to remember schools’ obligations, let’s review the federal law.

The McKinney-Vento Homeless Assistance Act was originally passed in 1986, but it was reauthorized in 2015 under the Every Student Succeeds Act or ESSA.  (This law is now a second grader!)  The Act contains a universal definition of “homeless” to be used by public schools and requires schools to address educational barriers for those students facing homelessness.  Under the Act, homeless children are defined as: 

(A) means individuals who lack a fixed, regular, and adequate nighttime residence . . . and

(B) includes–

(i) children and youths who are sharing the housing of other persons due to loss of housing, economic hardship, or a similar reason; are living in motels, hotels, trailer parks, or camping grounds due to the lack of alternative adequate accommodations; are living in emergency or transitional shelters; or are abandoned in hospitals; 

(ii) children and youths who have a primary nighttime residence that is a public or private place not designed for or ordinarily used as a regular sleeping accommodation for human beings (within the meaning of section 103(a)(2)(C)); 

(iii) children and youths who are living in cars, parks, public spaces, abandoned buildings, substandard housing, bus or train stations, or similar settings; and 

(iv) migratory children (as such term is defined in section 1309 of the Elementary and Secondary Education Act of 1965) who qualify as homeless for the purposes of this subtitle because the children are living in circumstances described in clauses (i) through (iii).

As you can see, the definition of homeless children is very broad and likely encompasses more students than you may traditionally think of as homeless.  For example, if an 18-year-old is kicked out of a parent’s house and forced to live with a relative, this student is homeless under the federal definition.  Similarly, if a family is evicted from their home and living with a relative in a neighboring town, those students are also homeless.  Students experiencing homelessness have the right to immediate school enrollment and can choose to attend either the last school the student attended (school of origin) OR the school in the attendance area in which the homeless student is now residing (local attendance area school).  This is true even if the school may otherwise have the ability under state law to deny enrollment.  Both schools may have transportation obligations to the homeless student. 

Additionally, schools must identify a local liaison who has the authority to identify and make eligibility determinations regarding homeless students.  Many times this is a district principal or the superintendent.  The local liaison will be involved in the best interest determinations regarding the enrollment of the student.  The parent, guardian, or unaccompanied youth has the right to appeal the best interest determination, and during the pendency of the appeal, the child shall immediately be enrolled in the school in which enrollment is sought.

Summer is a great time to review your district’s homeless policy and its requirements, so add it to the list.  Ensure that you have identified a local liaison and that this person understands the responsibilities associated with the McKinney-Vento Homeless Assistance Act.  In both Nebraska and South Dakota, the Department of Education has resources regarding this law available here and here.  If you have any questions regarding the application of this law to students seeking to enroll in your district, please do not hesitate to reach out to the KSB crew at 402-804-8000 or shoot us all an email at ksb@ksbschoollaw.com.  Enjoy the countdown to summer break!   

Part II: Are You Missing the Red Flags? Chronic Absenteeism and a School’s Response

Last week our blog post documented the rise in chronic absenteeism across the country and the responses schools must consider to address such absences from a special education perspective.  [TLDR; chronic absenteeism has skyrocketed in both NE and SD, it may implicate child find obligations, and IEP teams should address chronic absenteeism and student placement.]  This week Part II focuses on the parents.  As we have heard from many school administrators, parent buy-in is crucial; and many times chronic absenteeism is a result of parents being unable to provide the supports necessary to encourage regular attendance for their children.  How should schools support parents to reduce chronic absenteeism? 

Tool #1 - Research suggests schools that implement an early warning system to identify students who are at risk and provide interventions succeed  in reducing chronic absenteeism and drop-out rates.  Schools should consider how to create early warning systems that can provide interventions to these students.

Tool #2 - Schools have also used “nudging” successfully to target chronic absenteeism.  Essentially, schools send periodic updates to families regarding a student’s attendance and weekly updates on missing assignments.  Many schools have experienced greater success by shifting email to text messages for these “nudges.”    

Tool #3 - Also, don’t forget about the legal requirements of Neb. Rev. Stat. § 79-209 which requires schools to establish a collaborative plan to address barriers to attendance with the family.  The collaborative plan should address issues such as illness, counseling, community agencies, referral under Section 504 or the IDEA, and other services. 

Tool #4 - If the student qualifies for special education, both the IDEA and Rule 51 include “parent counseling and training” as a related service.  The student’s IEP team may consider adding counseling and training for the parents which could assist the parents in learning strategies to address behaviors in the home and also interventions to encourage student attendance.

Tool #5 - Related services also include “other supportive services as are required to assist a child with a disability benefit from special education.”  If a student who qualifies for special education is not attending school due to school refusal, a related service could include the school psychologist observing the student’s morning routine at home and offering strategies to encourage attendance.  Rule 51 also requires schools to ensure evaluations are sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not link to the child’s disability category. 

As we round out the 2023-2024 school year, the summer months are a great time to consider strategies and tools schools can implement in the next school year to address chronic absenteeism.  As your school works through these issues, please contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara with any of your questions at 402-804-800 or email us all at ksb@ksbschoollaw.com.   

Part II: Are You Missing the Red Flags? Chronic Absenteeism and a School’s Response

Last week our blog post documented the rise in chronic absenteeism across the country and the responses schools must consider to address such absences from a special education perspective.  [TLDR; chronic absenteeism has skyrocketed in both NE and SD, it may implicate child find obligations, and IEP teams should address chronic absenteeism and student placement.]  This week Part II focuses on the parents.  As we have heard from many school administrators, parent buy-in is crucial; and many times chronic absenteeism is a result of parents being unable to provide the supports necessary to encourage regular attendance for their children.  How should schools support parents to reduce chronic absenteeism? 

Tool #1 - Research suggests schools that implement an early warning system to identify students who are at risk and provide interventions succeed in reducing chronic absenteeism and drop-out rates.  Schools should consider how to create early warning systems that can provide interventions to these students.

Tool #2 - Schools have also used “nudging” successfully to target chronic absenteeism.  Essentially, schools send periodic updates to families regarding a student’s attendance and weekly updates on missing assignments.  Many schools have experienced greater success by shifting this from email to text messages for these “nudges.”    

Tool #3 - Also, don’t forget that SDCL 13-27-14 requires the school board to annually appoint a truancy officer to enforce the compulsory attendance laws within the district.  The law also provides grants the truancy officer “the powers of a deputy sheriff in the exercise of the officer’s duties, and shall apprehend without warrant children of compulsory school age who absent themselves from the place where the children are enrolled and required to attend without an excuse, and place the children in the custody of the person having charge of the place where the children are enrolled and by law required to attend.”  This law means the school’s truancy officer can go into a student’s house and physically bring the student to school. 

Tool #4 - If the student qualifies for special education, both the IDEA and ARSD 24:05:27:16 include “parent counseling and training” as a related service.  The student’s IEP team may consider adding counseling and training for the parents which could assist the parents in learning strategies to address behaviors in the home and also interventions to encourage student attendance.

Tool #5 - Related services also include “other supportive services as are required to assist a child with a disability benefit from special education.”  If a student who qualifies for special education is not attending school due to school refusal, a related service could include the school psychologist observing the student’s morning routine at home and offering strategies to encourage attendance.  ARSD 24:05 also requires schools to ensure evaluations are sufficiently comprehensive to identify all of the child’s special education and related service needs, whether or not link to the child’s disability category. 

As we round out the 2023-2024 school year, the summer months are a great time to consider strategies and tools schools can implement in the next school year to address chronic absenteeism.  As your school works through these issues, please contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara with any of your questions at 402-804-800 or email us all at ksb@ksbschoollaw.com. 

Are You Missing the Red Flags? Chronic Absenteeism and a School’s Response

Since the COVID pandemic in 2020, the education world has been fundamentally altered.  Ask any school administrator what they have noticed over the last four years, and they will certainly say the increase in chronic absenteeism and truancy.  Reports indicate that is the case nationwide.  The rise in chronic absenteeism has generated campaigns from both the Nebraska Department of Education and the South Dakota Department of Education to encourage regular attendance.  Chronic absenteeism is a broad term but is generally defined as a student missing 10% or more of school days and includes all absences such as excused and unexcused.  The impact of chronic absenteeism is long lasting for students and can contribute to high school dropout rates, juvenile delinquency, and declining grades.  State laws already require schools to address absenteeism in a number of ways for all students.  Additionally, students with disabilities have substantially higher rates of chronic absenteeism throughout all grade levels, and that is the focus of this post.  Are there red flags that your school may be missing, and how should you respond as a district?

Red Flag #1 - Chronic absenteeism may indicate a child find obligation for the District under both the IDEA and Section 504.  Multiple cases across the country have indicated that if a student has a large number of absences, the District may have reason to evaluate the student for a disability, especially if the absences are believed to be disability-based.  How does a school know if the absences are related to a disability?  That is a difficult question, but if the student has anxiety or depression, for example, the district should address child find obligations to determine if the disability is contributing to the absences.

Red Flag #2 - The student qualifies for special education, but the IEP does not address chronic absenteeism.  If a District notices an increase in absenteeism for a student with a disability, the District should reconvene the student’s IEP team to address the absenteeism.  If the District is not addressing the absenteeism, there may be a claim that the District denied the student FAPE.  The team should consider interventions such as a behavior intervention plan, positive behavioral interventions and supports, or related services which may improve attendance such as transportation or counseling services.  Even if your team determines that absences are entirely unrelated to a disability, you should still address the impact on the student’s current services and have the discussion with the parents.

Red Flag #3 - The student’s placement may need to be addressed in order to provide the student with FAPE.  The IEP team should consider a student’s placement, especially if the chronic absenteeism is related to the student’s current placement.  For example, if a student with severe anxiety and depression is engaging in school refusal because the classroom setting is anxiety-inducing and is no longer making educational progress, it may be necessary for the IEP team to consider changes to the structure of a student’s day or even an outside  program to address the student’s mental health needs.  Additionally, IEP teams should consider a comprehensive psychoeducational evaluation to assess mental health needs of a student when there is evidence to suggest an evaluation is needed.      

Chronic absenteeism is a pervasive issue in both Nebraska and South Dakota, and state and federal departments of education are focusing on it.  That usually goes hand-in-hand with an increase in that area from an enforcement and compliance perspective.  As a school, you have obligations to respond to these students.  We encourage you to work with your teams to spot red flags and address issues early and often.  If you have any questions about special education or chronic absenteeism, please reach out to the KSB crew at ksb@ksbschoollaw.com or give us a call at 402-804-8000.

March Madness: South Dakota Legislative Update and Ed Update

Name a better season in the country than March Madness?  The time we collectively take bets on nineteen year old youths who are majoring in communications.  While March Madness might have us all glued to the television and regularly refreshing our bracket rankings, let’s not forget the madness, or lack thereof, that occurred this South Dakota legislative session.  For the most part, this legislative session was a quiet one.  Below are the bills that will have the greatest impact on schools. 

HB 1020: This bill amends the previous law regarding suicide awareness and prevention training.  Prior to employment, and every five years after employment, certified employees (teachers and administrators) must complete a youth suicide awareness and prevention training.  The SDDOE will make a list of approved training available to schools.

HB 1055: This bill increases the threshold for a political subdivision, like a school district, to sell surplus property through a private or public sale without notice.  The amount was modified from $500 to $2,500.

HB 1187: This bill creates a one-year career and technical education educator permit.  The bill allows for applicants to apply if they have an associates of applied science degree or at least 2,000 hours of work experience in a related CTE field.  

HB 1197: This bill requires school district computers to be equipped with software to limit a student’s access to obscene matter or materials (hopefully all schools already have this technology in place given existing obligations like COPPA, CIPA, and e-Rate rules). Additionally, boards must adopt a policy regarding the measures to restrict minors from accessing obscene materials by January 1, 2025.  For our KSB policy subscribers, we will include a policy as part of our annual updates. 

HB 1220: This bill reduces  the time in which a party may appeal the decision of a hearing officer in a  special education due process hearing to thirty days.  The appeal period was originally ninety days.  

SB 75: This bill defines the requirements for a legal newspaper.  A legal newspaper must have a minimum paid circulation of at least two hundred or meet additional requirements for online subscribers.  

SB 127: The teacher compensation bill. TLDR; we have heard from many business managers the frustrations of this bill. 

SB 203:  This bill expands those who may carry a firearm on school premises to include: an individual who is 21 or older, holds an enhanced permit to carry a concealed pistol, and has written permission from “the principal of the school or other person who has general control and supervision of the building or grounds.”  KSB policy subscribers should be on the lookout for a policy regarding this change during our annual updates. 

SB 212: This bill authorizes  the school district to pay certain bills prior to the school board meeting if the board approves the vendor and the maximum amount of payment.

Good news, if you stuck with us through this long blog post, there is an additional legal update.  The SDDOE recently updated the open enrollment form.  As you will notice, there is no longer a reference to a student’s disability and IEP.  School administrators - we will be issuing guidance in the future as to what this change means for schools.  As always, if you have any questions regarding school law or legislation, shoot us an email at ksb@ksbschoollaw.com. 

P.S. Go UConn Huskies!  March Madness bets and predictions may also be submitted to ksb@ksbschoollaw.com 

Ain’t No Sunshine…When It’s March: LB 43, OMA and Public Records

Here we were, patiently waiting for flowers to bloom and tee sheets to open.  Now we’ve got snow, cold, and dispositive Unicameral activity in late March.  We didn’t sign up for this.

Last week with the passage of LB 43 (another smash-6-into-1 bill), the Unicameral made changes to Nebraska’s two “sunshine” laws on open meetings and public records. Here’s the TLDR: while you’ll hear a lot about LB 43 in the coming months and during policy update time, it’s unlikely anything in LB 43 will change your policies or practices…yet.

Beginning in July, the Open Meetings Act will require each public body to “allow members of the public an opportunity to speak at each meeting.”  There may be some exceptions that school lawyers figure out for narrow special meetings, such as for things like personnel hearings and student discipline appeals, but you should plan on allowing for public comment as a matter of course at the vast majority of your meetings.

The public records law changes are a mixed bag.  The good news for schools is that beginning in July, you will be able to charge for all hours (including the first 4) for employees “searching, identifying, physically redacting, copying, or reviewing” records responsive to requests made by individuals who are not residents of Nebraska or by entities (like SmartProcure).  Schools will also be able to charge these requestors for attorney time needed to “review the requested public records.”  This is a big deal when those statewide requests come in from entities outside of Nebraska with incredibly broad scopes.

However, that’s a tradeoff for the changes made when the request is from a “resident” of Nebraska.  Once the changes are effective in July, schools will not be allowed to charge any fee for searching, identifying, redacting, or copying until after the first 8 hours of employee time.  Nor can you charge a fee for an attorney “or any other person” to review the request seeking a legal basis to withhold records.  How this will square with a fairly new Nebraska Supreme Court case on the issue of time spent “reviewing” records is unclear.  More on that soon during policy update time for KSB policy subscribers.

LB 43 contains a few other important items of note for schools and ESUs.  It establishes the “First Freedom Act,” which protects religious expression and exercise with particular protections for wearing tribal regalia on school grounds and at school functions.  It also adds an exception to disclosure of public records containing cybersecurity measures of the state and political subdivisions, along with a couple other new laws we’ll hit on at a later date.

For now, don’t believe everything you’ve read about LB 43, unless you read it here or in Justin Knight’s (of the Perry Firm) nice summary from last Friday.  Administrators, you should touch base with your board members or forward this like it’s hot, just in case they’ve only seen the (incorrect) summaries of LB 43 in the media, which are saying that all these changes are effective immediately.  If you have any other questions about LB 43 or the existential despair set on by our 4th winter in Nebraska this year, reach out to us at ksb@ksbschoollaw.com.

Bad Patrons, Bad Patrons: Whatcha Gonna Do? Responding To Unruly Parents and Patrons

The end-of-week grogginess has set in.  It is time to name that tune!  If you watched any television from 1989 through the present, you likely recognize the title’s nod to the iconic show Cops.  Just as the law enforcement in Cops is faced with a variety of unruly and out-of-control individuals, school administrators are oftentimes faced with similar conduct at sporting events by parents, patrons, and students.  Not only is this a nationwide issue, schools in the Midwest are facing similar challenges. 

For example, a school district in northern South Dakota recently came under scrutiny in the news for the student sections’ racial slurs against the opposing team.  This event prompted the South Dakota High School Activities Association to update its Racial Harassment, Violence, and Taunting policy.  The updated policy states, “Any spectator violating the Racial Harassment portion of this policy shall be immediately removed from the facility by contest administration and/or contest officials.”  A second policy clarifies the SDHSAA stance on taunting.  For our Nebraska clients, the NSAA has a “Conduct and Sportsmanship” policy that states: “Members schools shall maintain proper crowd control and enforce the principles of good sportsmanship and ethics during all interscholastic contests.”       

How do these policies work with district policies and state law?  In South Dakota, SDCL 13-32-1 explicitly states “Superintendents, principals, supervisors, and teachers have disciplinary authority over all students while the students are in school or participating in or attending school sponsored activities whether on or off school premises.”  (emphasis added).  This statute gives broad authority to administrators to remove and discipline students who are engaged in racial harassment, taunting, or other behaviors that violate school policy.  Similarly, Neb. Rev. Stat. 79-267 provides: “[T]he following student conduct shall constitute grounds for long-term suspension, expulsion, or mandatory reassignment, subject to the procedural provisions of the Student Discipline Act, when such activity occurs on school grounds, in a vehicle owned, leased, or contracted by a school being used for a school purpose or in a vehicle being driven for a school purpose by a school employee or by his or her designee, or at a school-sponsored activity or athletic event.” (emphasis added).  Additionally, this is a reminder to review your board policies on access to school premises or activities.  For KSB policy subscribers in both Nebraska and South Dakota, that is policy 3018.  

Generally, schools in both states have broad authority to remove unruly patrons, parents, and students from a school activity.  Those individuals have little recourse against the school or administration if they are dissatisfied with the ejection or removal.  Further, if the behavior is highly problematic or disruptive, the District can provide the patron or parent a “Stay Away” letter informing the individual that they are no longer allowed on school property or at school activities.  We encourage our administrators to use such tools to address problematic behavior.

If you have any questions about premise access, unruly parents, or would like assistance drafting “Stay Away” letters or board policy, do not hesitate to reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at 402-804-8000 or give us all an email at ksb@ksbschoollaw.com.   

Landmark Case Involving Mother of School Shooter

In November 2021, a school shooter opened fire at Oxford High School in Michigan killing four students.  Prior to the shooting, the shooter’s father assisted the high school student in purchasing a gun.  Additionally, the shooter’s mother took the student to the gun range.  The school district alerted the parents to concerns that the shooter was searching for ammunition on his cell phone during class and that violent drawings had been found in the shooter’s possession in school.  The parents did not take the school’s concerns seriously and instead brushed them off.  The shooting occurred the day the school staff met with parents to notify them of the District’s concerns.

On December 3, 2021, both parents, James and Jennifer Crumbley, were charged with involuntary manslaughter for failing to prevent their son from harming others.  Claims included the parents' alleged failure to secure guns and ammunition in their home and failure to assist their son in receiving mental health services.  On January 23, 2024, Jennifer Crumbley stood trial on involuntary manslaughter charges.  This case was one of first impression where there was an attempt to place criminal responsibility on the parents for the school shooting.  

Interestingly, you can sum up a lot of the mother’s defense strategy as, “This was really the school’s fault.”  While probably not surprising to educators, the case involved discussion of many common areas where public misunderstanding of school obligations tend to occur: mental health, searches, safety and security, child find and evaluation under disability laws, and others.   On February 6, 2024, the jury convicted Jennifer Crumbley on four counts of involuntary manslaughter.  This is the first time in U.S. history that a parent was convicted in connection with a mass school shooting committed by their child. 

This case sets up what could be a fascinating precedent for parents who are gun owners and also highlights the importance of parents paying attention to mental health warning signs exhibited by their children.  More courts may now consider whether parents who own guns  properly store their guns and prevent unsupervised access of weapons to minors.  It also highlights the significance of parents’ diligence surrounding their children’s actions and mental health.  For our school administrators, this case shows the importance of early warnings and having frank, honest conversations with parents about mental health concerns and other warning signs educators see with students in the school setting.  Of course, we naturally found ourselves considering any IDEA and Section 504 implications as these mental health warning signs emerged.  If you have any questions about these issues or school safety obligations, please reach out to us at ksb@ksbschoollaw.com or call us at 402-804-8000.   

We’re Back! ACLU of Nebraska Record Request Follow-Up

On January 25, we blogged about the record request from ACLU of Nebraska that many schools received.  We’re not yet sure if it was sent to every school in Nebraska.  If you didn’t receive the request from the ACLU, please exit the blog post and enjoy the rest of your day!  If you did receive the request, read on…

The ACLU listed 11 separate requests, mostly pertaining to SRO programs and use of seclusion and restraint.  If you received the request, first you should consider whether or not you actually have an “SRO” assigned to your school or any specific school building.  

In order to have an “SRO” as defined by Nebraska law, the officer must be assigned specifically to your school as the officer’s “primary duty.”  While that’s not defined, we think the best starting point is to consider if a local officer is assigned to be in your school at all.  Do they have regular hours they spend in the school?  Or do they just drop in from time-to-time (even regularly) while on their normal patrol duties?  If they are assigned to your school or a specific school building and spend the majority of their duty time working with you in the school, you probably have an SRO.  Most situations should be pretty clear, but if not, contact your school attorney to decide.

Please note that even if you don’t have an SRO and you did receive the request, not all of the 11 items requested are tied to having an SRO.  For example, request #9 asks for “[a]ny and all documents reflecting current policies and practices with respect to the restraint and seclusion of students.”  Responding to the limited requests that don’t include an SRO is still something you’ll have to do.

Instead of the usual 4 business days, the ACLU has given schools until February 20, 2024 to respond.  You’ve got time, but there’s no time like the present to form a plan for your response.

As we promised in our last post, we’ve put together some guidance for our clients to help them respond, specifically focused on walking you through the SRO law, restraint and seclusion legal obligations, and which documents are possibly responsive.  We plan to charge a set small fee for the guidance memo and a template of the letter you can use to respond to the ACLU.  This flat rate helps to spread the cost for responding around across schools and also maintains attorney-client privilege for your response.  You will have to consider legal implications and our advice for your school specifically, and by sending it to you individually, the ACLU doesn’t get a chance to see our advice to you.  If you are a KSB policy subscriber and/or have used our model MOU for your SRO program (if you have one), we can point you to most of the items you’ll need to send, including specific policies.  Even if you aren’t a subscriber, we’re happy to share our guidance with you.  We have also reached out to Justin Knight at the Perry Law Firm to discuss the ACLU request.  Both law firms agree on how to respond, and if you are a Perry Client, we’re certain Justin or another Perry attorney will be happy to assist you in crafting your response.  If you are interested in KSB’s guidance and response letter template or have any questions about the request, drop one of us a line or shoot an email to all of us at ksb@ksbschoollaw.com.  

Look Beyond the Dollar Sign: The Cost of Failing to Provide FAPE

School administrators, we are willing to bet you have experienced several contentious IEP meetings during your career.  If we were to guess the percentage of those contentious IEP meetings that focused on placement questions, we are going to guess approximately 50%.  Discussions regarding placement are often emotion-filled from the perspective of the parents and budget conscious from the perspective of the district.  However, if the IEP team fails to consider the data and options available for the placement of a student, it can result in costly litigation for the district.  Recently, the Chamberlain School District was ordered to reimburse parents $90,000 (plus attorney’s fees) for failing to develop an appropriate IEP for a student, which included the student’s placement. 

In this case, the Chamberlain School District had a student who qualified for special education services.  The student’s health conditions caused him to exhibit many behaviors such as shouting, swearing, cheating, disobeying the rules, and sexualized conduct.  

Because of all these behaviors, the school changed the student’s placement to homebound in January of his junior year.  The student was supposed to receive education from recorded videos and Google classroom.  However, there was a communication breakdown between the general education and special education teachers which resulted in the failure to upload content for the student.  In April, the parents contacted the District about possibly changing the student’s placement to a residential facility in Utah.  However, the District was unenthused about this option, as it would not receive Medicaid funds for the costs associated with the student’s attendance.  As of May, the District had no plans on how to provide the student with educational services for his senior year.  In August, the parents unilaterally placed the student at the facility in Utah and sued for tuition reimbursement. 

A due process hearing was filed where the hearing officer determined the District failed to provide the student with a free appropriate public education (“FAPE”) by failing to develop an IEP for the 2019-2020 year, failing to provide a FAPE for the 2018-2019 year, and failing to develop behavior plan.  The hearing officer stated: “As the evidence shows, the home placement was not working and was not providing a FAPE for [the student.  The school district’s administration] knew that [the student] could not be placed within the school and the home placement was not working.”  The hearing officer ordered the District to pay the cost of the private school tuition.

The District appealed the hearing officer’s decision.  The South Dakota Federal District Court affirmed the hearing officer’s decision.  The District appealed the District Court decision to the Eighth Circuit Court of Appeals.  On appeal, the District lost, and the lower court decision was affirmed.  [If you are counting, that is three losses for the District.] 

Because this case was litigated in the Eighth Circuit, which governs federal law in both Nebraska and South Dakota, it is crucial our school administrators understand the following:

1. Placement decisions cannot be decided simply based on cost alone.  It is not appropriate to deny a placement request because the District cannot afford the placement, or Medicaid won’t reimburse for the placement. 

2. Communication between special education staff and general education staff is crucial, especially for students who are homebound.  All individuals responsible for implementing a student’s IEP must be informed of and understand their responsibilities.

3. If a student’s behaviors, including sexualized behaviors, impede learning, it may be appropriate to conduct a Functional Behavioral Assessment and implement a Behavior Intervention Plan.  Additionally, it may be appropriate to convene the IEP team and consider potential goals or strategies, such as specialized curriculum, to address sexualized behaviors. 

4. The District is ultimately responsible for providing a student with a free appropriate public education. 

If you have any questions regarding placement or special education matters, please do not hesitate to contact us at ksb@ksbschoollaw.com or give us a call at 402-804-8000. 

ACLU SRO Record Request

Good morning!  Everyone at KSB is out of the office January 25-26, 2024 for our law firm’s winter retreat.  We’re really excited to be planning how to better serve our clients and support schools.  BUT…just like it’s inevitable that one of your kids gets sick when your significant other is out of town, another statewide record request started coming in yesterday.  

This time, the ACLU of Nebraska is requesting a host of documents related to school resource officers (SROs).  The request is largely focused on the items a school must have in place under Nebraska state law: MOUs, training, policies, etc.  If you’ve forgotten, in 2019 the Unicameral passed a series of statutes that require these items to be in place for schools that staff or contract for SROs.  If you have an SRO (more on this in a second) and this is news to you…contact us or your school attorney.  KSB has training, sample MOUs, and policies available if you need them.

Deadline.  Before you respond, note on the bottom of the ACLU’s request that they have provided some additional time to respond.  We believe schools would be wise to use this additional time to internally assess whether you have documents that would be responsive to this request and, then to gather and review them before sending a response to the ACLU.  

What’s an SRO?  Before you respond, keep in mind that not every law enforcement officer who may work with or come into your school is an “SRO.”  Section 79-2702 defines SRO this way:

School resource officer means any peace officer who is assigned, as his or her primary duty, to any school district to provide law enforcement and security services to any public elementary or secondary school and does not mean a peace officer responding to a call for service, providing proactive enforcement, providing law enforcement or traffic direction for a school-related event, or providing temporary services as a school resource officer when the assigned school resource officer is not available

If a local officer drops by occasionally or even often, you may call them an SRO but they may not be an SRO as defined by law.  To meet the statutory definition, they must be assigned to your school “as [their] primary duty.”

When we get done with our retreat on Friday, we’ll get to work putting together some guidance to assist our clients (and anyone who may want it) in responding.  Take a breath, sit tight, and keep doing awesome things for kids.  If you have questions about the ACLU’s request or about your compliance with the training, MOU, and policy obligations, please drop us a line at ksb@ksbschoollaw.com or give us a call at 402-804-8000.

Oh, The Weather Outside is Frightful (And So Is Misclassifying Staff Members as Independent Contractors)

The Midwest.  One of the few places in the United States where it can range from 100 degrees in the summer to -40 in the winter.  What a time to be alive!  While the students in your District might continue to sing “Let It Snow!” school administrators (and parents) are ready for a reprieve from the snow, wind, and sub-zero temperatures.  Since you (likely) have no place to go (See what I did there? Frank Sinatra’s classic has so much potential.), today seems like the perfect opportunity to leaf through the newest Department of Labor rules on the classification of independent contractors which go into effect March 11, 2024.

As a reminder, why should you care as a school district?  Failure to comply with the independent contractor rules can be costly.  Misclassification of an employee as an independent contractor can cost the district back taxes and penalties from the IRS.  Sometimes districts attempt to make clever arguments about why an individual is not an employee but an independent contractor.  These arguments usually fail to be successful.  Sadly, the IRS is not an agency that rewards creativity.  

Starting in March, the IRS will apply six factors to determine if an employee is an independent contractor under the FLSA.  The factors include: opportunity for profit or loss depending on managerial skill; investments by the worker and the potential employer; degree of permanence of the work relationship; nature and degree of control; extent to which the work performed is an integral part of the potential employer’s business; and skill and initiative.  None of the factors are dispositive standing alone.  This is a tougher standard than existed in the past. 

Before looking at contracting with an individual for services under the theory the individual would be an independent contractor, a district should conduct an analysis under the six-factor test above.  Additionally, an employee cannot waive their status as an employee to be classified as an independent contractor.  It is the district’s responsibility to ensure that employees are properly classified under the FLSA.

If you are looking at classifying an individual as an independent contractor, consider giving your school attorney a call just to talk through the new test and factors.  We also conduct full FLSA audits for school districts for a flat rate.  You can enjoy a ray of sunshine (that IS what you call the KSB lawyers, right?) in your building and get all of your FLSA issues addressed at one time.  If you’re a KSB client, give any of us a call or drop us a line at ksb@ksbschoollaw.com.  Let it snow?!

Spotted in the News: A Reminder that Title IX Encompasses More Than Sex Harassment

Unless you were born yesterday (which congratulations to Attorney Tyler Coverdale on the newest KSB kid crew member who was born this week! I bet baby Coverdale is equally as excited as school administrators to learn about Title IX from his father.), you have heard us discuss, at length, the 2020 Title IX regulations and the upcoming proposed regulations.  However, as schools focus on the sexual harassment component of Title IX, there is a tendency to forget the breadth of the Title IX regulations.  In particular, many schools overlook the requirement to provide equal athletic opportunities for members of both sexes in high school interscholastic athletic programs—both in terms of numerical opportunities and in equal experiences (such as quality of coaching, facilities, scheduling, etc.).  

Recently, the Sioux Falls School District proposed eliminating the gymnastics program for the 2023-2024 year which resulted in a Title IX lawsuit filed by parents of the participants.  The District cited a variety of reasons for cutting the program including declining participation, inability to find coaches, financial considerations, and interest in other extracurricular activities. The District intended to sell the gymnastics equipment in the fall of 2023; however, Plaintiffs sought a preliminary injunction preventing the sale.  The court granted the preliminary injunction and halted the sale of the equipment on the grounds that the degree to which the District’s girls were already underrepresented among its athletes was unacceptably high (more than 7%) and that ending the girls gymnastics program would only make things worse.  In November, a federal judge upheld the preliminary injunction.  This decision also confirmed the sport would continue for the 2023-2024 season. 

Before schools make a decision to add or cut a sports program, it is crucial to analyze the Title IX requirements and consider the extent to which a school is offering athletic participation opportunities to both boys and girls in numbers substantially proportionate to their respective share of student enrollment.  The law recognizes three separate tests by which schools can show compliance.  If a school meets one prong, it is effectively compliant and in a safe harbor.  Of the prongs, the one typically utilized by schools to determine compliance examines the percentage of athletic “participation opportunities” for each sex and then compares that figure to that sex’s percentage of the overall student enrollment.  The other two prongs are more subjective (which lawyers love) and look at the school’s history of adding opportunities for the underrepresented sex and whether it is sufficiently meeting needs based on current levels of interest.  It’s always worth looking at all 3, even if the focus is on proportionality.

In our experience, schools are well served to examine the state of their current athletic programs and to have an understanding of whether they can show compliance.  This is best done on a regular basis, before you find yourself responding to a request to add or cut an athletic program.  We routinely analyze school district’s athletic programs and provide our advice on the extent to which they can show compliance with their Title IX obligations regarding athletic opportunities and proportionality.  Please note, it is clear under Title IX case law that financial concerns are not a reason to engage in gender discrimination.   If you are interested in knowing how your current program fits within the Title IX requirements or in learning about how adding (or cutting) other sports may affect your ability to show compliance, please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or shoot us all an email at ksb@ksbschoollaw.com. 

We’re All In This Together (Until We Aren’t): The Consequences of Acquiescing to Parent Requests When Educationally Inappropriate

Ahhh, 2024.  So much optimism.  So many opportunities to achieve our resolutions.  [Bobby’s resolution to learn a new skill (move over golfing - we are picking up pickleball).  Jordan’s resolution to become more organized (Sayonara to a desk littered with water bottles).  Steve’s resolution to attempt to break a Guinness record (which record has yet to be determined, ideas can be submitted to ksb@ksbschoollaw.com).  Reader, please note it is up to you to determine whether these resolutions may or may not be accurate.]  With the new year and second semester ahead of school administrators, now is the perfect time to reflect on sticky situations you may be faced with in a special education context.  (Potential New Year’s resolution for school administrators: Do not acquiesce to parent requests impacting special education students without determining if the request is educationally appropriate based on data!)

In a recent state educational agency decision from New Mexico, a school district was required to provide 300 hours (YES, YOU READ THAT NUMBER RIGHT) of compensatory education and revise its policies.  The student was eligible under OHI for special education due to a variety of medical conditions which required ongoing treatment.  The student was attending in-person classes during the first semester of 2021-2022.  However, during the second semester, the student transitioned to at-home learning for one hour per day.  The District proposed the student receive in person instruction for twenty hours per week for the 2022-2023 school year while the student’s parent requested the student continue at-home instruction.  The school district granted the parent’s request and educated the student in a homebound setting.  The parent subsequently filed a state special education complaint alleging the student was not educated in the student’s least restrictive environment and was denied a free appropriate public education.  

The complaint investigator noted the district “followed a policy of permitting Parent unbound flexibility in maintaining remote instruction at home.”  The District failed to mainstream the child, failed to educate the child in the least restrictive environment, and failed to provide the student a free appropriate public education.  The decision went on to state “[The District] bears the legal responsibility for this denial of FAPE.”  

This case illustrates the frustrating truth that a parent can sue a school when the school does what the parent wants!  Remember, our educational obligation is owed to the student, even if the parent exercises many IDEA rights.  If a request by a parent is educationally inappropriate or is not supported by data, do not just give in and implement the requested service or placement.  Districts have an obligation to provide eligible students FAPE.  If you have any questions regarding this or any other special education related matter, please do not hesitate to contact us at ksb@ksbschoollaw.com or give us a call at 402-804-8000.