It May Be Time to Throw Out the Junk…Fees

The Agriculture Secretary announced that starting in 2027-2028, students eligible for free and reduced-priced school meals cannot be charged junk fees. The USDA Food and Nutrition Service issued a memo as part of this announcement. For this fee policy, school meal programs encompass a School Breakfast Program, Special Milk Program, and National School Lunch Program (including after-school snacks). Additionally, the fees at issue are those associated with electronic payments (AKA credit card payments). 

Students who qualify for reduced-price school meals can be charged up to $0.40 per lunch or $0.30 per breakfast. Beginning with the 2027-2028 school year, students who qualify cannot be charged fees when they use electronic payment. This applies to transaction fees associated with credit/debit card payments, bank account/ACH transfers, one-time program fees, annual fees, and convenience fees. For schools that choose to provide electronic payment services, the following must occur: (1) provide a free and accessible method of making deposits, (2) provide a method of deposit that does not require computer access, (3) notify families of available payment options, and (4) ensure that all families have access to every payment method made available for adding money to meal accounts. 

The 2027-2028 school year start date is designed to allow school districts to begin making arrangements to comply with their vendors and contracts. Schools “are encouraged to implement this requirement as soon as they are able and may use funds in the nonprofit school food service account to cover the fees under their current contract.” One requirement to comply with this policy is to ensure that negotiating contracts with payment processing companies does not lead to fee shifts or fee increases for those students paying full price. 

Even though 2027 seems like a million years away, now is the time to review your school's practices and determine what needs to be done to comply. Please call us at (402) 804-8000 or email ksb@ksbschoollaw.com if you have any questions. 

P.S. The IRS released guidance related to the recent federal legislation that changed PPACA requirements, allowing for notice as a method of furnishing 1095 forms. As predicted, the notice requirements are in line with past IRS practices. Review our previous blog post for a full review of those notice rules.  By the end of today, make sure you have either posted notice of the availability to request or provided copies. 

Dealing with Opinionated Opinions

Public comment, everyone’s favorite topic! Alright, maybe that is a bit of a stretch for some, but the reality is public comment is here to stay and remains a legally tricky issue to navigate. 

When the public speaks at board meetings, this directly implicates an individual's First Amendment rights. Inevitably, there will be times when a board would want to consider establishing rules and guidelines for the public comment process. We are here to remind you of some of the legal issues that can arise by unpacking a decision from the 11th Circuit. 

In Moms for Liberty v. Brevard Pub. Sch., No. 23-10656, 2024 U.S. App. LEXIS 25394 (11th Cir. Oct. 8, 2024), the 11th Circuit found that a school district’s public comment policy in Florida was unconstitutional. The policies at issue were: (1) “no person may address or question Board members individually,” and (2) the barring of statements “too lengthy, personally directed, abusive, obscene, or irrelevant.” Throughout the court’s opinion, it became clear that a significant issue the school district faced was having an ill-defined understanding of terms like “abusive” or “obscene” and, historically, inconsistent application of the policies. Ultimately, the court found the ban on abusive speech, the rule against personally directed speech, and the prohibition on obscene speech all unconstitutional under the First Amendment. 

What does all of this mean for school districts here? The key takeaways are as follows:

1. Boards generally cannot bar speech that is “offensive.”  Obscene speech?  Sure.  But just “offensive” may not cut it.  In Brevard, the board used the policy restricting such speech to ban name-calling. Even though name-calling is not everyone’s cup of tea, the First Amendment likely protects this kind of speech. Rules that prohibit viewpoint-neutral speech characteristics are more likely to pass constitutional muster. An example of a viewpoint-neutral characteristic rule would be a time limit. 

2. Any time a board has a rule restricting public comment, the history of enforcement is critical if challenged. A court will examine whether a rule has been enforced arbitrarily or haphazardly. This means boards need to be on the same page about the meaning of any rules in place. 

3. Make sure rules in place tie back to a clear goal. The court in Brevard struggled with the rule against personally directed comments because, in light of the inconsistent enforcement, the court could not see how the policy advanced the goal of “preventing disruption” or “maintain[ing] decorum.” As the 11th Circuit stated, “To be sure, sometimes meetings can get tense—no one enjoys being called out negatively, and some may even dislike public praise. But that is the price of admission under the First Amendment.”

4. Bans on speech that is “obscene,” “lewd,” “profane,” or “defamatory” can be lawful but are tricky. Words like “obscenity” under the First Amendment have been constructed in a relatively narrow manner. If a board uses these types of terms as criterion for regulating public comment (such as in KSB’s model public comment rules), consider how you’ve enforced those and whether some basic training on spotting speech of that variety might help, especially with new board presidents and board members taking over this time of year. 

The 11th Circuit ultimately concluded its opinion by expressing that the “government has relatively broad power to restrict speech in limited public forums—but that power is not unlimited. Speech restrictions must still be reasonable, viewpoint-neutral, and clear enough to give speakers notice of what speech is permissible.” Remember, boards can make and enforce reasonable rules and regulations regarding public comment, but boards need to be looking at the application and understanding of the terms present in those rules. 

If you have any comments of the nonpublic variety regarding these issues, give us a call at 402-804-8000 or shoot us all an email at ksb@ksbschoollaw.com. 

The Surprising Secret Sauce for High Student Achievement: Great School Boards

What if the biggest factor in student success wasn’t test scores, funding, or curriculum—but the school board itself? Research shows that when boards lead with clarity, vision, and collaboration, entire districts thrive. Strong boards don’t just govern; they shape the culture, priorities, and progress that drive better student outcomes.  This should make every board member rejoice: what you do really matters!  But it also gives every board member pause: what you do really matters! 

One of the most compelling studies on this topic is the Lighthouse Project, a decade-long research initiative that explored how school board governance impacts school improvement and student learning. As newly sworn board members start to fully engage in their roles, now is the perfect time for both new and experienced board members to consider how your board can maximize its impact. 

What makes a Board Effective? 

The Lighthouse Project identified five key functions of highly effective school boards: 

1. Setting clear and high expectations

2. Holding the system accountable to the expectations

3. Creating conditions for success

4. Building collective will

5. Learning together as a board team 

The Lighthouse research indicates that when boards embrace these five functions, they move beyond routine oversight and become true catalysts for improvement. The board’s leadership ripples through the entire district, ultimately shaping a stronger, more successful learning environment for students.

The Power of a Positive Board-Administrator Dynamic 

One of the study’s biggest takeaways is that the relationship between the board and the superintendent directly affects student success.  In high-achieving districts, board members don’t attempt to micromanage, but they don’t just rubber-stamp decisions either.  Instead, they engage in thoughtful, strategic leadership.  

Likewise, superintendents in these districts don’t view the board as a necessary evil, but as a critical partner in shaping the district’s future. When this relationship is built on trust and shared purpose, district leaders can focus on systemic improvements that drive real results.  This isn’t just an idealistic hope – it’s backed by data.  Strong board leadership leads to stronger schools. 

Want to Strengthen Your Board? 

The time and effort that it takes to focus on strengthening your board’s key skills is worth the investment.  There are many resources available to boards that are ready to take the next step.  One of those options is to access some of KSB’s resources.  We offer both onsite board training with an attorney and online training through our app.  We will also be rolling out a tool this spring to help boards evaluate their strengths and weaknesses in critical skill areas, which will help you know where to focus your self-improvement. 

For now, the most important thing to remember is this: SCHOOL BOARDS MATTER!  But we at KSB have known that all along.  <3 

If you want to talk board training (onsite training with a KSB attorney or online modules through our App) or have any questions, please call us at (402) 804-8000 or email ksb@ksbschoollaw.com.

Navigating President Trump’s First Two Weeks

As promised, we are back to highlight some of the developments from President Trump’s first two weeks back in office. On Inauguration Day, President Trump signed 26 executive orders and rescinded 78. Here are a few quick highlights of actions you should  be aware of because they may impact schools.

On January 20, 2025, President Trump issued an executive order titled “Defending Women From Gender Ideology Extremism and Restoring Biological Truth to the Federal Government.”  This executive order states that the administrative agencies of the federal government must treat “sex” as binary: either male or female.  It also instructs agencies of the federal government that civil rights laws related to sex discrimination cannot be expanded to apply to sexual orientation or gender identity.  Essentially, this executive order seeks to undo the Biden administration's position on the applicability of sex discrimination laws to questions of gender identity.  We anticipate the US Department of Education will be issuing more guidance on this topic in upcoming weeks, including how it impacts Title IX.  Speaking of which…

OCR also issued a Dear Colleague Letter on January 31, 2025 available here clarifying OCR’s position on Title IX enforcement under the 2020 Title IX regulations instead of the 2024 Title IX regulations.  It specifically  mentioned the 2020 investigative process but said nothing about all of the related issues, like updating policies, handbooks, etc.  We think schools should be patient before they make any sweeping changes to Title IX policies, training or practices.  If you have a Title IX complaint come in over the next few months, call legal counsel before making promises or taking any next steps.  The situation on this issue is so fluid, we don’t want schools to get caught in a vicious cycle of changing everything all the time.  That’s not to mention the other executive orders mentioned in this article and state level bills and laws on issues like athletics participation.  Instead, we are awaiting further developments and doing some deep thinking before we make our next substantive recommendations on Title IX. 

Additionally, President Trump announced the executive order “Protecting the American People Against Invasion.”  In this executive order, the administration pronounced that “sensitive locations” such as schools and churches are no longer outside the purview of ICE enforcement actions.  We do not think ICE will raid a lot of schools, because there are not a lot of undocumented employees in school buildings.  Nevertheless, schools should start thinking ahead about what to do if ICE does conduct raids in your community.  Do you have a lot of students who would not have an adult to pick them up from school if ICE raids one of your community’s employers?  Make a plan for what your protocol will be for those students.  Reach out to members of immigrant communities within your district and offer to connect them with resources for executing temporary guardianships for children who might be left without parents in the short term.  As a reminder, a student’s immigration status has no effect on the student’s ability or access to attend school, even if President Trump successfully revokes birthright citizenship.  The 1982 Supreme Court Decision of Plyler v. Doe requires schools to educate all students in their communities regardless of immigration status.  457 U.S. 202 (1982).  If you are interested in more information regarding this topic, a webinar recording hosted by the Center for Immigrant and Refugee Advancement is available here with password .gKqH@&4.  We want to thank CIRA for graciously agreeing to allow KSB to share this resource.

On January 30, President Trump issued the executive order “Ending Radical Indoctriniation in K-12 Schooling.”  Essentially, this order says federal funding will be cut to schools that teach “discriminatory equity ideology” (AKA critical race theory) and “gender ideology.”  It also reinstates Trump’s 1776 Commission to promote “patriotic education.”  We don’t believe many midwest schools are at risk under this order, but you should call your school attorney if you are worried.  However, you should be ready to assure any concerned member of the public that your district is complying with this order.      

Schools should also be aware that President Trump issued an executive order disbanding resources and guidance related to diversity, equity, inclusion (DEI).  In the executive order “Ending Illegal Discrimination and Restoring Merit-Based Opportunity,” the Department of Labor was ordered to cease promoting diversity, enforcing affirmative action, and encouraging federal contractors to engage in preferential treatment based on consideration of race, color, sex, sexual preference, religion, or national origin.  Every federal contractor for a grant award must now include a term certifying the contractor will not operate any programs related to DEI.  We’ll likely be following up on this during policy updating season to determine if it will affect any federal procurement policy requirements.

If political fodder brings you joy, you can also read the list of executive orders President Trump rescinded here.  In line with President Trump’s campaign platform, the Office of Civil Rights recently announced its dismissal of eleven complaints related to “book bans.”  As of January 24, 2025, OCR has “rescinded all department guidance issued under the theory that a school district’s removal of age-inappropriate books from its libraries may violate civil rights laws.”  Keep in mind there are court cases out there that make this analysis more complicated than a “do what you think best” approach.  There are First Amendment and other implications, but we feel most boards have already wrestled with it by adopting some kind of policy or process for review of library materials.

We know that it seems like there are a lot of edicts being issued every day, but the fundamental work of teaching students and serving your school communities remains unchanged.  We will monitor developments and let you know when you need to take some action.  Resist the urge to let agitated news reports (from any part of the political spectrum) prompt your district to take precipitous action.  Please reach out to us at ksb@ksbschoollaw.com or 402-804-8000 or your school’s attorney if you have any questions about these executive orders and their impact on schools.

Yay! It’s a PPACA Reporting Update?

Administrators--if your rockstar business official has given you the luxury of handling all of the PPACA/Obamacare reporting on your behalf, please forward this on to them!

Two new pieces of federal legislation have been signed into law. Oftentimes, the words “new,” “federal,” and  “legislation” can cause a bit of heartburn. Thankfully, no antacid is needed today because these pieces of legislation are intended to decrease the burden of Affordable Care Act reporting.  (Insert a chorus of business managers rejoicing here!) 

Since the inception of PPACA reporting, all “applicable large employers” have had to provide a copy of the applicable 1095 forms to all full-time employees and to the IRS. The Paperwork Burden Reduction Act (H.R. 3797), passed recently, now provides some flexibility in terms of providing a copy of the applicable 1095 forms to employees. 

If an employer follows the requirements of this new law, the employer is no longer required to provide employees with a copy of the form(s). Instead, an employer must provide a “clear, conspicuous, and accessible notice” that employees can request a copy of their form. The IRS is in charge of releasing guidance on how to fulfill this notice requirement.  Unfortunately, they haven’t done that yet. 

If the IRS uses “notice” rules for this new reporting option that are similar to other PPACA notice rules the IRS has used, it may look something like this: 

• “The employer must provide clear and conspicuous notice, in a location on its website that is reasonably accessible to all individuals, stating that individuals may receive a copy of their statement upon request.”

• “The notice must include an email address, a physical address to which a request for a statement may be sent, and a telephone number that individuals may use to contact the employer with any questions.”

• “The employer must post the notice on its website by March 3, 2025, and retain the notice in the same location on its website through October 15, 2025.”

The new law is effective “to statements with respect to returns for calendar years after 2023,” meaning you could take advantage of it for your 2024 PPACA reporting. If you would like to do so, following the IRS’s notice posting rules outlined above may be your best bet given that the IRS has not yet put out guidance on the new law.  So, it’s a bit aggressive but may be worth it if you dread sending out all those 1095 forms to your employees.  However, that notice may be subject to change based on what the IRS eventually decides regarding this provision. We will keep you updated on the release of that guidance. 

If you opt to go this route, once an employee requests their 1095 form, you must provide a copy within 30 days or, if later, by January 31.  Don’t forget that the new law did not change filing requirements with the IRS, so all applicable large employers must still file their 1094 and all 1095 forms with the IRS.

We’ve heard from a few of you who have already sent 1095 forms to their employees.  That’s great!  Even though this new flexibility exists, there is no requirement that you take advantage of it.  You can always choose to do it next year even if you continue sending the forms to employees this year, as you have in the past.   

The second piece of legislation, the Employer Reporting Improvement Act (H.R. 3801), amends various sections of the Internal Revenue Code. One amendment to be aware of is that employers can now report an individual's full name and date of birth on 1095-B forms and Part III of 1095-C forms if that individual’s taxpayer identification number (TIN) is missing. Additional amendments include the provision of consent for electronic delivery of 1095-B and 1095-C forms, which is indefinite until revoked, meaning forms can be provided to individuals electronically year after year without having to obtain new consent annually.  The employee consent for electronic delivery of these PPACA forms can be a bit clunky, so if you need a refresher you should contact your school attorney or tax professional.

Even better, for districts that have received an IRS Letter 226J assessing penalties under the Affordable Care Act, we now have 90 days to respond to the letter instead of 30 days. This new deadline applies to assessments and penalties proposed in taxable years after December 23, 2024. (Reminder, if you get a 226J letter, call us ASAP to help you.) Lastly, there is now a six year statute of limitations for the IRS’s assessment of ACA penalties beginning with returns filed in 2025 and beyond.

As we wait for IRS guidance to clarify the notice requirements for this act, please do not hesitate to contact us with any questions at ksb@ksbschoollaw.com or (402) 804-8000. 

P.S. We are expecting the incoming Trump Administration to begin issuing Executive Orders right away today. We are tracking the executive orders and will put out another blog post soon with any pertinent information educators and boards need to know!

The Title IX Saga Continues: Policy Updates Required After 2024 Regulations Vacated

In a pivotal decision, the U.S. District Court for the Eastern District of Kentucky vacated the 2024 Title IX regulations.  The case is State of Tennessee, et al. v. Cardona, Civil Action No. 2:24-cv-00072-DCR (E.D. Ky. Jan. 9, 2025). This ruling nullifies the 2024 regulations entirely, meaning in effect it has a nationwide application.  Typically when a court vacates regulations, it means you return to the previous regulations.  In this situation, that would mean returning to the 2020 Title IX framework.

The 2024 regulations attempted to expand Title IX protections to include sexual orientation and gender identity, redefine harassment standards, and introduce procedural changes. The court rejected these efforts, finding that the Department exceeded its statutory authority and violated the constitution while doing so. This ruling underscores the ongoing legal battles over Title IX’s scope and the proper process for regulatory changes.

What Does This Mean for Schools?

Schools must now revert to the 2020 Title IX framework, which requires immediate planning and action.

Policy Updates Are Essential

We know you do NOT want to hear this, but school districts are going to have to update their Title IX policies to align with the 2020 regulations at some point fairly soon. The court’s decision invalidates any adjustments made to comply with the now-vacated 2024 rules. KSB School Law has already begun drafting updated policies for our policy service subscribers. However, we recommend waiting until after President Trump’s inauguration to finalize changes, as we expect an executive order or other executive position may further alter or complicate the status of the Title IX litigation and regulations.

Prepare for More Litigation

Legal challenges to the 2020 regulations will likely resurface, alongside ongoing cases involving the rights of transgender students. These lawsuits will continue to shape the Title IX landscape, requiring schools to remain vigilant and flexible.

Plan for Additional Training

Administrators should plan for additional Title IX training during the second semester of the 2024-25 school year. Everyone involved in the Title IX process—investigators, decision-makers, and appellate decision-makers—will need updated training to ensure compliance with the reimplemented 2020 regulations and prepare for any new guidance.  Anyone not previously trained on the 2020 regulations will need training if you plan to have them serve in your Title IX team KSB will offer new, streamlined training sessions on our portal, and we promise these will be shorter than the lengthy sessions required in 2020 (though we all know you’ll miss our Hamilton references)!

New Complaints

If you get a new complaint of sexual harassment and the misconduct occurred after January 8, 2025, you should contact your school lawyer.  Until schools can get their 2020 regulation policies and processes in place, we’ll have to navigate inconsistency between the law post-ruling and your policies, procedures, forms, etc.

How KSB Can Help

We are finalizing updated Title IX policy templates and will release them to policy service subscribers after we evaluate any new information from the Trump Administration as they take office.

You should dust off your 2020 policies and forms and share those with administrative staff, so everyone has a refresher on those processes as we work toward updated policies to enact in the coming weeks.  You can contact KSB for assistance with updates, training, and legal guidance. If you have any questions, please don’t hesitate to reach out to us at ksb@ksbschoollaw.com or (402) 804-8000. 

Stepping into the New Year: New Board Member Reminders

The New Year is here, so introducing new board members is just around the corner. In preparation for those January board meetings, we are sending out our short list of frequently asked questions for your reference. 

What are the oath requirements for new board members?

Technically, there are no oath requirements. Section 11-101 of the Nebraska statutes contains an oath of office that “state, district, county, precinct, township, municipal, and especially appointed officers” must take.  However, the Nebraska Supreme Court has interpreted this provision in a way that makes it inapplicable to boards of education. Frans v. Young, 30 Neb. 360, 46 N.W. 528 (1890). Additionally, courts outside of Nebraska that have addressed statutory oath requirements have consistently found oath requirements to be unconstitutional.

What does this mean for you? If board members desire to take the oath, let them.  But, if board members object to taking the oath, don’t force them to do so.

What if I don’t have enough old board members to constitute a quorum to open the January board meeting?

Open the meeting with your new board members.  The new board members may sign their oaths before the meeting opens, or you may open the meeting and begin with swearing in the new board members.

Can the old board members wrap up the old business at the January meeting? 

No. Old board members cannot take any formal action because they automatically lose their authority to act on behalf of the school district when their terms expire, regardless of when their replacements are seated.  Terms expire the first Thursday after the first Tuesday in January, which for 2025 would mean board terms expire January 9.  At most, board members whose terms have expired may perform ceremonial acts.  

What do I need to know about the election of officers? 

Section 79-564 now requires that “[a]t the first meeting of each school board or board of education elected in a Class I, II, or III school district, and annually thereafter, the board shall elect from among its members a president and vice president. The board shall also elect a secretary who need not be a member of the board. If the secretary is a member of the board, an assistant secretary may be named and his or her duties and compensation set by the board.” 

In terms of how this vote has to happen, unlike roll call votes taken by the board, section 84-1413 allows you to elect officers by secret ballot as long as the “total number of votes for each candidate” is recorded in the minutes.  Practically speaking, a simple motion and second then allows the board to cast secret ballots, and then the number of votes for each candidate is recorded in the minutes.

In case of a tie, be aware that there is no statutory process for breaking that 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. 

Are there any specific designations the Board must make at the January meeting? 

There are two designations the board may consider making at the January meeting: (1) designating a bank, and (2) designating a law firm. 

A district must designate the district’s bank, capital stock financial institution, or qualifying mutual financial institution “from time to time . . . by formal resolution duly recorded.” Neb. Rev. Stat. § 77-2350.  “Time to time” does not necessarily mean annually, though we know many boards make this designation each January.  The designated bank or financial institution must be situated within the district’s boundaries.  If no such entity is located within the district’s boundaries, the board may designate any such institution within the state. This designation can be made at the January meeting, or the designation can be done in policy. 

There is no technical requirement that a board must designate legal counsel. However, it is common for a board to designate the law firms(s) that they will work with for the next calendar year. Even though not technically required, such a designation can help clarify a school’s authority to work with legal counsel under section 79-513. 

How do I get new board members up to speed with their responsibilities and obligations? 

Board member training is an important part of onboarding new board members, so we recommend you look into some formal training. KSB offers a board training video series and board retreats to assist in that process. 

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

New Year Reminders for School Boards and Administrators

It’s hard to believe that 2025 is here. In the hustle and bustle of this time of year, we thought it best to provide a few reminders for this January. 

School Board Elections

School board elections are required to “be held between the second Tuesday in April and the third Tuesday in June between the hours of seven a.m. and seven p.m. of the day of the election.” SDCL 13-7-10. The statute goes on to provide that the school board must “select the date of the election by resolution no later than the first regular meeting after January first of each year.” 

Make sure at the first regular meeting in January that election date gets established. Additionally, the 2025 School Board Election Calendar is a helpful starting point to begin to think about the election process for this coming year.  

Legislative Session

Nothing dampens the holiday spirit quite like thinking about a few hundred non-educators talking about all the problems with education.  With a minimal increase in state funding expected as well as new faces in committees, it is likely to be an eventful session (the last thing schools want to hear).  Whether it's vouchers, homeschool, cell phones, or libraries, we will be monitoring each and every bill that affects schools and will provide updates as they come. 

Tax Forms

While we’re dampening spirits, it is time to talk taxes. Please be aware that employee W-2s have to be delivered to employees by January 31, 2025. Those W-2s must be filed electronically with the IRS. Furthermore,1099s must be delivered to recipients by January 31, 2025.  Now is the time to make sure all your government login information works and that you remember your passwords. Nothing is more tragic than spending six hours on hold with the IRS attempting to retrieve your FIRE password.  

Districts also have reporting obligations under the Affordable Care Act, and those deadlines are approaching. KSB has a PPACA webinar, focused on 1094-C and 1095-C reporting, to assist school business officials if needed. Please email sara@ksbschoollaw.com for any questions regarding the webinar or those obligations. 

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