Ready for Day One: Title IX and SRO Training for Schools

Investing in Title IX and SRO training now will save your district time, headaches, and maybe even a lawsuit later.

Last year, schools were scrambling in late July. New Title IX regulations dropped from the Biden administration, and the clock started ticking toward an August 1 implementation date. Then, a federal judge in Kentucky hit pause just before the Trump administration took office. The current administration has signaled it won’t appeal the stay, leaving districts in the uncomfortable middle—caught between two regulatory frameworks and a lot of legal uncertainty.

No matter who’s running the show in Washington, one thing hasn’t changed: courts still expect schools to train their people and respond when something goes wrong. And while the politics shift, the state mandates—like Nebraska’s 20-hour SRO training—keep coming. The margin for error is thin, and the legal and political expectation to “get it right” is higher than ever.

So what’s a school district to do?

Start with a Training Plan That Actually Works

At KSB, we’ve designed an updated suite of training options to help your team prepare for 2025–26 without wasting time or money. None of this is designed to scare you into compliance—it’s about giving your staff, administrators, and SROs the tools they need to do their jobs well and with confidence. Here’s what’s available:

Title IX Training – Team and Staff Options

For Districts Using the “Full” 2020 Policy
If your board adopted a policy aligned with the full 2020 Title IX regulations, your team needs to be fully trained—and your training materials must be posted publicly on your website. Our on-demand Title IX Team Training (Full Version) meets all those needs. It includes:

• A 3-hour detailed training video

• Updated forms for compliance

• A link and materials for your website

• District-wide access for $1,250

For Districts Using the “Slim” Policy
Some boards opted for a less exhaustive version that still meets legal standards by focusing on the “deliberate indifference” standard. For those districts, we offer:

• A 40-minute team training

• Custom checklists and compliance forms

• District-wide access for $750

All Staff Title IX Training
Whether you’re using the full or slim policy, all employees, volunteers, board members, and even community coaches need to understand their reporting obligations. Our 25-minute video:

• Can be watched individually or as part of inservice

• Includes tracking and completion certificates

• Costs $500 per district (regardless of the number of individuals who access it)

Click here to register for Title IX Training

SRO Training (State-Mandated)

Nebraska law requires 20 hours of training for both SROs and the administrators they work with.  The training obligation applies if you have an “SRO” as defined by law assigned to your building or buildings.  The training applies both to the SRO(s) and at least one administrator in each building where an SRO operates.  Our training breaks it into manageable, on-demand modules and fulfills the full statutory requirement. ($400 per district)

Click here to register for SRO Training

If you have any questions regarding training, please email shari@ksbschoollaw.com or call the office (402) 804-8000.

Ready for Day One: Title IX Training for Schools

Investing in Title IX training now will save your district time, headaches, and maybe even a lawsuit later.

Last year, schools were scrambling in late July. New Title IX regulations dropped from the Biden administration, and the clock started ticking toward an August 1 implementation date. Then, a federal judge in Kentucky hit pause just before the Trump administration took office. The current administration has signaled it won’t appeal the stay, leaving districts in the uncomfortable middle—caught between two regulatory frameworks and a lot of legal uncertainty.

No matter who’s running the show in Washington, one thing hasn’t changed: courts still expect schools to train their people and respond when something goes wrong. And while the politics shift, the state mandates keep coming. The margin for error is thin, and the legal and political expectation to “get it right” is higher than ever.

So what’s a school district to do?

Start with a Training Plan That Actually Works

At KSB, we’ve designed an updated suite of training options to help your team prepare for 2025–26 without wasting time or money. None of this is designed to scare you into compliance—it’s about giving your staff the tools they need to do their jobs well and with confidence. Here’s what’s available:

Title IX Training – Team and Staff Options

For Districts Using the “Full” 2020 Policy
If your board adopted a policy aligned with the full 2020 Title IX regulations, your team needs to be fully trained—and your training materials must be posted publicly on your website. Our on-demand Title IX Team Training (Full Version) meets all those needs. It includes:

• A 3-hour detailed training video

• Updated forms for compliance

• A link and materials for your website

• District-wide access for $1,250

For Districts Using the “Slim” Policy
Some boards opted for a less exhaustive version that still meets legal standards by focusing on the “deliberate indifference” standard. For those districts, we offer:

• A 40-minute team training

• Custom checklists and compliance forms

• District-wide access for $750

If you are not a KSB policy subscriber and are interested in purchasing either the 2020 Title IX policy or the “slim” Title IX policy, please send Shari an email.

All Staff Title IX Training
Whether you’re using the full or slim policy, all employees, volunteers, board members, and even community coaches need to understand their reporting obligations. Our 25-minute video:

• Can be watched individually or as part of inservice

• Includes tracking and completion certificates

• Costs $500 per district (regardless of the number of individuals who access it)

CLICK HERE TO REGISTER FOR TRAINING

Other KSB Training for 2025-26 

Although we aren’t ready to open registration yet, we do want to let you know that we’ll continue our Quarterly Webinars, with a “deep dive” into topics offering focused, extended sessions on pressing issues facing school administrators. These will run three hours each and include materials, examples, and time for discussion.

Have questions, want to register your district for Title IX portal content, or want to lock in a date for in-person training? Email Shari at shari@ksbschoollaw.com.

………The Law Less Traveled

Review of Open Meetings Laws

Last week we published our checklist for boards as they head into the new fiscal year. One item we forgot to include was information regarding Senate Bill 74 which passed in the 2025 legislative cycle. That act added SDCL § 1-25-13 which requires a school board to annually review, during an official meeting, the “explanation of the open meeting laws of this state published by the attorney general” and “[a]ny other material pertaining to the open meeting laws of this state provided by the attorney general.” Additionally, the review of this material must be reflected in the meeting minutes. This review has to be completed annually. Linked here is a copy of the Attorney General’s Open Meetings Guide that your board can review. We recommend adding this to your July meeting annually and noting the review in your agenda and minutes. 

Annual Inventory Obligations

Each year, by June 30th, the employees designated by the school board must complete an inventory of all public personal property. SDCL § 5-24-1. This employee is responsible for providing the inventory report to the school’s business manager. SDCL § 5-24-3. Public personal property requiring inventory means “any tangible item other than money, credits, accounts, securities, or real property that is movable, has an expected useful life exceeding one year, and has an initial purchase cost in excess of $5,000.” ARSD 10:02:01:01. We would encourage reviewing your district’s practice for fulfilling these inventory obligations. 

Business Manager Bond

In July, many school boards will set the bond (AKA insurance) required for the school business manager. SDCL  § 13-8-18 provides that “The penal sum of the bonds required for school business managers shall be fixed and approved by the school board.” Business managers - add this to the agenda!

Pay or Indemnify

If a claim has been brought against an officer or employee of a district, and the claim arises “out of an act or omission occurring within the scope of the employment of such employee, or when exercising official duties or responsibilities as an officer or member of such governing board,” then the board has some options. SDCL § 3-19-1. The board can choose to indemnify for costs incurred in the defense, pay or indemnify for reasonable attorney fees, pay or indemnify for a judgment based on the claim, or pay or indemnify for settlement of the claim. If your district finds itself in a situation where someone files a claim or complaint against a board member or employee individually, we encourage you to reach out to your regular legal counsel to discuss the options available. 

As always if you have any questions or feel like there is a law regarding schools that you think is collecting dust, let us know at ksb@ksbschoollaw.com. 

LRE or Not LRE – That Is the Question

Alas, poor LRE (least restrictive environment)! We knew thee well—until staffing shortages drove the plot off course. In this tale, Miami-Dade Cnty. Sch. Bd., 125 LRP 9104 (SEA FL 2025), a district’s staffing decision led to a drastic change in a student’s special education placement—despite no change in the student’s needs. The outcome? A cautionary tale regarding violating the IDEA’s least restrictive environment (LRE) requirements.

The student, who was verified under SLD and had a medical diagnosis of ADHD, had consistently received part-time instruction in a resource room due to his academic and attentional challenges. The April IEP team meeting reaffirmed the need for this setting—half his day in a resource room, the other half in general education.

Come August, when the student’s mother dropped off school supplies, the principal informed her that the resource room would no longer be staffed. The IEP team reconvened and switched the student to a full-time general education placement, staffed by a teacher with special education certification, with push-in support.

The Administrative Law Judge made it clear: “At the beginning of the next school year, with no change in the student's needs or key data, the school-based members of the IEP team concluded that, based on a staffing decision, the student's placement would change to 100% of his school day spent in a general education class. They reached this conclusion despite there being no change in his disabilities or unique needs. As a result, the change in placement was not tailored to meet his special needs.”

Key Takeaways: 

• Staffing issues, no matter how real, cannot form the basis of placement decisions. The rationale for decisions must be tied back to the individual needs of the student.

• Be mindful of both the timing and location of discussions. Here, the parent was likely caught off guard by the sudden flip in placement and how it was communicated, which partially contributed to this dispute.

If, as the school year dawns, thou art met with staffing woes that cloud the path of special education, let not uncertainty reign—our counsel standeth ready at ksb@ksbschoollaw.com.

New Fiscal Year, New Checklist: Your July Board Meeting To-Do List

The start of a new fiscal year might not come with a big celebration or champagne (Sidebar: Honestly - it should come with champagne, right? Business managers should be able to celebrate all those fund transfers and finalizations of annual reports!), but it does come with an important meeting. As your board prepares for its annual reorganization meeting, here’s a handy checklist to help make sure you're covering all the essentials.

Designate Your Bank(s) & Custodian Of Funds (AKA Business MGR)

1. Required by SDCL 13-8-10

2. Adopt a resolution at your July meeting naming your district’s bank or banks to be the depository.

3. Pro-Tip: Check the Department of Legislative Audit’s list for under-collateralized banks, if applicable

Elect Your Board Officers

1. Required by SDCL 13-8-10

2. Elect a President and Vice President from among the current board members.

3. Officers serve until the next annual meeting.

4. Reminder: Review your board policy to confirm your election procedures.

Prepare for Tie Votes

1. No statutory tie-breaker exists for officer elections.

2. Check if your board policies include a method for resolving election ties.

3. Boards using KSB Policy 2002 likely already have a tie-breaking process in place.

Administer Oaths of Office

1. Discussed in SDCL 13-8-14 and 13-8-15

2. Newly elected board members must take and sign an oath to uphold the U.S. and South Dakota Constitutions and perform their duties.

3. Oaths are filed with the business manager, except for the business manager’s oath, which goes to the county auditor.

4. Oaths only need to be completed once per person during their term.

5. Both the business manager and board president can administer oaths.

Designate Your Legal Newspaper

1. Required annually required by SDCL 13-8-10

2. Designate the newspaper where all official notices and proceedings will be published.

(Optional, But Recommended) Review Committee Assignments 

1. Many boards will use the reorganization meeting to assign committees with new members now seated.

2. The Board President has sole authority to appoint all committees, so take this step after officers are elected (SDCL 13-8-26). 

(Optional, But Recommended) Designate Legal Counsel

1. Many boards use the July meeting to name the law firm(s) they’ll work with in the coming year.

2. There is no legal limit on how many firms you can authorize.

3. Need sample language? A sample agenda item and motion is available.

The July meeting sets the tone for the year. Use this checklist to ensure your board is organized, compliant, and ready to lead. Additionally, as you prepare for the coming year, consider booking your staff inservices or explore the on-demand portal content for staff professional development offered by KSB, including a 45 minute staff-inservice video available at the end of July. Questions? We’re here to help. Reach out anytime at ksb@ksbschoollaw.com or (402) 804-8000.

Don't Stop Behavin’: Discipline and Disability

Discipline under the IDEA can feel like an '80s power ballad—dramatic, complicated, and easy to misinterpret. But don't worry: you don’t have to hit every high note alone. 

As a starting point, when a student with a disability is excluded from school for more than 10 school days—either in a single suspension or a series of suspensions for similar behavior—certain protections under the IDEA must be provided. To help make sense of the discipline process, KSB has developed a free flowchart that walks you through it. 

A recent decision from the Washington Office of Superintendent of Public Instruction (OSPI), In re: Student with a Disability, 125 LRP 12703 (SEA WA 2025), offers helpful reminders for school districts navigating this process.

The parent of an elementary student with autism filed a complaint, arguing that the district repeatedly sent her child home for behavioral reasons. The state Department of Ed ultimately sided with the district, finding the student was suspended on three occasions and informally removed from class on a few others.  On three occasions, the school informed the parent that the student was struggling, but did not suggest removal; the parent independently chose to pick the student up. These were informal removals—not suspensions. Ultimately, the total number of days missed due to behavior did not exceed the 10-day threshold that would trigger IDEA disciplinary protections like a manifestation determination.

The Washington Department of Ed provided a reminder that is timely for all districts: “OSPI recommends the District review its practice of calling the Parent regarding behavior incidents and ensure that such calls provide information but do not cause the Parent to believe, even inadvertently, she is required to take the Student home resulting in these informal removals.” 

Key Takeaways for Schools:

• Maintain detailed records of behavioral incidents and attendance to defend against claims of improper removal.

• The more proactive we can be in responding to behaviors, the better. You do not have to wait until the law mandates conducting an FBA and developing a BIP to begin that process. As a reminder, positive behavior interventions and supports MUST be considered by the IEP team when behavior impedes a student’s learning. 

• Make clear when a parent is being notified about behavior versus when the district is requiring a removal.  If possible, keep records about EXACTLY what was said in that conversation. 

• Voluntary pickups by parents, when not prompted by school staff, generally don’t count toward the 10-day limit under IDEA—but teams should still consider whether and how to plan for parent communication and the parent’s response to the communication in the IEP.

We promised a fun summer special education compliance series, and we believe we are delivering. As always, if you have any questions, send us a message at ksb@ksbschoollaw.com. 

Summer Special Education Compliance Series: IEPs and Extracurriculars

Nothing screams summer fun like a blog series on special education compliance. No worries, here at KSB, we know how to have fun, and we are here to deliver. Each week, we will cover a special education area that can often trip up schools. This week, we start with extracurricular activities. 

In the case, In re: Student with a Disability, 125 LRP 9799 (SEA WI 04/02/25), the parent of a middle school student with an intellectual disability requested a paraprofessional to support their child during rehearsals for the school musical. The IEP team considered and determined that such support was unnecessary, given the student’s demonstrated success in choir class and the structured nature of rehearsals. The team determined that the student would benefit from independence and that added adult support might inadvertently distance the student from peers.

When a late pickup incident raised safety concerns, the district reconvened the IEP team and adjusted the dismissal plan—staff would now remain with the student until the parent arrived. The district also issued a detailed prior written notice explaining its refusal to provide a paraprofessional. The state agency found that the district had met its obligations under the IDEA. 

The Key Takeaways for Districts:

• The IEP team decides what supports are necessary, including during participation in extracurriculars. When denying a request, clear documentation and thoughtful reasoning are critical.

• Respond to concerns—especially safety-related ones—proactively and collaboratively.

• Extracurricular considerations raise compliance issues under both the IDEA and Section 504. Services during those times typically are not specially designed instruction (though they can be), but accommodations provided must ensure an equal opportunity to participate.

Tune in next week for another quick reminder on special education compliance. Until then, if you have any questions, email us at ksb@ksbschoollaw.com. Also, don’t forget that now is the time to be considering staff in-services and professional development for the upcoming school year.  We have a special education series for South Dakota teachers and administrators available here.  For Nebraska schools, we have the Rookies & Refreshers Special Education Series available here.

Uh-Oh Here Comes Osseo

If you have heard a special education presentation from us recently, you have probably heard us discuss a case in which a school was ordered to provide special education services in the evenings.  In a related case, A.J.T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279 U.S. (2025) the same student’s parents sued the district claiming that its failure to provide evening instruction also violated  the Americans with Disabilities Act and Section 504 of the Rehabilitation Act.  In that second case, the  United States Court of Appeals for the Eighth Circuit held that because the parents could not recover money damages from the district because school officials acted with “either bad faith or gross misjudgment,” the claim could not proceed.  Enter the Supreme Court with more bad news for school districts.

The Supreme Court held that school districts are no longer protected by the “bad faith or gross misjudgment” standard.  Instead the Court held that the parents must only prove “deliberate indifference.”  In other words, the legal standard for a special ed family alleging disability discrimination is now the same as the legal standard for a family alleging sex discrimination under Title IX.  1) knowledge that harm to a federally protected right would likely occur and (2) a failure to act on that knowledge. Deliberate indifference is definitely a more plaintiff-friendly standard than the one that has been in place for schools in Nebraska, South Dakota and Wyoming.  However, that doesn’t mean you should panic.  Deliberate indifference is still a very high standard to prove.  This feels to us a bit like the Endrew F. case from 2017.  The legal standard has definitely changed in the favor of parents, but most schools will not need to make huge changes in their day-to-day operations.  Schools only engage in deliberate indifference when staff have 1) knowledge that harm to a federally protected right would likely occur and (2) intentionally fail to respond reasonably. s Of course, we will continue to dive in deeper and explore how we can best support districts under this new standard over the next several months.  In the meantime, if you have questions about this case or any other matter,please do not hesitate to reach out and contact us at ksb@ksbschoollaw.com.

How to Be the Best-est at Asbestos

Ah, Scranton. Home of The Office, coal history, and now—EPA enforcement actions. A recent settlement entered into by the Scranton School District with the U.S. Environmental Protection Agency helps to remind us of obligations that all school districts have under the Asbestos Hazard Emergency Response Act (AHERA). 

According to the EPA, Scranton failed to maintain proper asbestos management plans at 15 schools and didn’t keep updated copies of those plans in 19 school buildings as required by AHERA. Scranton received a $40,431 civil penalty. After showing proof that the district’s efforts to comply with AHERA exceeded $40,000, the penalty was reduced to zero.

So, what does AHERA actually require? In short, schools must inspect buildings for asbestos every three years, maintain an updated management plan onsite, notify parents and staff annually of the management plan's availability, designate a contact person, periodically surveil known or suspected asbestos-containing building material, train custodial staff in asbestos awareness, and ensure all inspections and abatement are handled by licensed professionals. If you are unsure where your asbestos management plans are or cannot recall the last time they were reviewed, now may be the time for a review.  At KSB, we have a sample asbestos plan which can be purchased for a nominal fee.  

If you have questions about obligations under AHERA or would like to purchase a sample plan, please contact us at ksb@ksbschoollaw.com. 

It’s That Magical Time of Year… Policy Update Season

We know what you’re thinking — nothing says summer fun like combing through new legislation and reading policy updates. But as always, the powers that be have given us all a reason to trade in our pool floaties for red pens. 

A few quick highlights to be prepared for: 

• LB 89 recently passed the second round of debate with an amendment that removed the discussion of locker room and bathroom access. The current version of the bill focuses on sports team participation.  If passed, this will still require a new policy. 

• KSB will be developing and providing new policies on: dress code, tribal regalia, behavioral intervention, and access to library information.

• More changes are likely coming to option enrollment and policies regarding parental involvement; be on the lookout. 

On the federal level, although it has felt like a flurry of activity from the Trump Administration and courts, at this time the executive orders and Department of Education actions will not require much in the way of policy changes. We are continuing to monitor things and will keep you posted if and when things change.

So while you enjoy your well-earned break (or at least a slightly slower pace) that is coming, rest assured: we’re handling the heavy lifting. KSB will be publishing policy updates on May 29, 2025. That will include the information you need for our annual policy webinar for policy service subscribers, which will occur on June 2, 2025 at 9:00 am CT. 

Coming Soon: KSB’s Superintendent Evaluation Platform

While we’re deep in policy updates now, we’re also excited about what’s just around the corner. In June, we’re launching the first component of our brand-new Evaluation Platform — starting with superintendent evaluations. Built to bring clarity, fairness, and legal compliance to an often-overwhelming process, the platform is designed specifically for Nebraska boards and administrators. Stay tuned for more details in the coming weeks!

And of course, reach out to ksb@ksbschoollaw.com  if you have questions before then — we’re always happy to help.

It’s That Magical Time of Year… Policy Update Season

Ah yes, summer is nearly here — that blissful season when South Dakota school leaders finally get to relax… and read brand new legislation with a highlighter in hand. We know policy updates are everyone’s favorite part of the job, so here’s your annual reminder: we’ve got you covered.

Our firm is reviewing the latest legislative changes and will be publishing updated policies for your board’s consideration. In the meantime, here’s a quick preview of what’s driving this year’s updates:

• HB 1259 establishes requirements regarding access to certain multi-occupancy rooms, i.e. bathrooms, locker rooms, etc. Although this bill has received lots of attention, at this time, we will not be developing a policy that addresses this bill. But don’t worry, we will be providing guidance on the implications of this legislation for the operation of your district. 

• HB 1068 will require an update to commencement ceremony policies to address the wearing of certain military decorations. 

• Changes to the compulsory attendance policy are coming due to SB 71.

On the federal level, although it has felt like a flurry of changes coming, at this time, the executive orders and Department of Education actions will not require massive policy changes, if any. We are continuing to monitor things and will keep you posted if and when things change.

So while you enjoy your well-earned break (or at least a slightly slower pace) that is coming, rest assured: we’re handling the heavy lifting. KSB will be publishing policy updates on June 16.  Within that release will be information about our annual policy update webinar on June 19 for our policy service subscribers.  On the webinar, we’ll discuss the changes and answer any questions you have about them. 

And of course, reach out to ksb@ksbschoollaw.com  if you have questions before then — we’re always happy to help.

That Time of Year - Graduation Regalia

For families of high school seniors, graduation season means ordering an elaborate cake and opening congratulatory cards from Aunt Irene with a $10 bill tucked inside. For school administrators, graduation season brings questions from students and families about wearing cultural, religious, or symbolic attire during ceremonies. While schools have some authority over what students can wear during commencement ceremonies, that authority exists within constitutional limitations found in the First Amendment and state law.

First, know that you can regulate graduation attire when the regulation is tied to legitimate educational goals. The First Amendment protects student expression, but not all student speech is created equal. Courts draw a distinction between private student speech and school-sponsored speech. Because graduation ceremonies are school-sponsored events, courts have found that student regalia is considered school-sponsored speech, meaning schools can regulate what’s worn if the policy is reasonably related to legitimate pedagogical concerns (e.g., class unity, academic focus, avoiding controversy).

For example, in one case from Colorado, Villasano v. Garfield County School District 16 (D. Colo. 2023), a student was denied permission to wear a sash with Mexican and American flags at graduation to honor her heritage. The court ruled in favor of the school, holding that graduation regalia was school-sponsored speech and could be regulated based on the school’s interest in controlling the tone and message of the ceremony—even if that included allowing some regalia and disallowing others. Likewise, Dreaming Bear v. Fleming (D.S.D. 2010), a Native American student was required to wear a cap and gown over traditional clothing. The court found the graduation ceremony was a nonpublic forum and the school could impose restrictions so long as they were tied to educational goals. The school’s policy did not violate the student’s rights.

It is really important to remember that schools must not apply their regulation of graduation regalia selectively. For example, in Waln v. Dysart School District (9th Cir. 2022), a student who was an enrolled member of a Native American tribe asked the school district to accommodate her religious practice by allowing her to wear an eagle feather on her cap during her high school graduation. The school district refused to make an exception. The student arrived at her commencement wearing an eagle feather; and the school district prohibited her from attending the ceremony. In the lawsuit, the student alleged that other high school students were allowed to wear caps that violated the commencement dress code policy, such as a breast cancer awareness sticker. The court ruled in favor of the student, finding particular fault in the district’s selective enforcement of its policy such as not excluding a student’s secular message while burdening the student’s religious expression. The student also prevailed on her free speech claim.

Bottom line - schools may limit what students wear, as long as the restrictions relate to legitimate educational interests and are applied fairly and consistently.

Note that the rules surrounding commencement dress requirements will change in Nebraska next year. Nebraska has a new law which takes effect on July 1, 2025. It is available here. The new law guarantees students who are members of indigenous tribes the right to wear traditional tribal regalia—including garments, jewelry, and cultural adornments—at school and school-sponsored events. This right applies wherever the student is otherwise authorized to be, such as commencement ceremonies or classrooms. Schools may still regulate items that pose safety risks or disrupt the educational environment. (Yes, for KSB policy subscribers, this will be covered in the new dress code policy which Nebraska schools will also have to implement this summer.)

If you have any questions, please do not hesitate to contact us at ksb@ksbschoollaw.com or 402-804-8000.

That Time of Year - Graduation Regalia

For families of high school seniors, graduation season means ordering an elaborate cake and opening congratulatory cards from Aunt Irene with a $10 bill tucked inside. For school administrators, graduation season brings questions from students and families about wearing cultural, religious, or symbolic attire during ceremonies. While schools have some authority over what students can wear during commencement ceremonies, that authority exists within constitutional limitations found in the First Amendment and state law.

First, know that you can regulate graduation attire when the regulation is tied to legitimate educational goals. The First Amendment protects student expression, but not all student speech is created equal. Courts draw a distinction between private student speech and school-sponsored speech. Because graduation ceremonies are school-sponsored events, courts have found that student regalia is considered school-sponsored speech, meaning schools can regulate what’s worn if the policy is reasonably related to legitimate pedagogical concerns (e.g., class unity, academic focus, avoiding controversy).

For example, in one case from Colorado, Villasano v. Garfield County School District 16 (D. Colo. 2023), a student was denied permission to wear a sash with Mexican and American flags at graduation to honor her heritage. The court ruled in favor of the school, holding that graduation regalia was school-sponsored speech and could be regulated based on the school’s interest in controlling the tone and message of the ceremony—even if that included allowing some regalia and disallowing others. Likewise, Dreaming Bear v. Fleming (D.S.D. 2010), a Native American student was required to wear a cap and gown over traditional clothing. The court found the graduation ceremony was a nonpublic forum and the school could impose restrictions so long as they were tied to educational goals. The school’s policy did not violate the student’s rights.

It is really important to remember that schools must not apply their regulation of graduation regalia selectively. For example, in Waln v. Dysart School District (9th Cir. 2022), a student who was an enrolled member of a Native American tribe asked the school district to accommodate her religious practice by allowing her to wear an eagle feather on her cap during her high school graduation. The school district refused to make an exception. The student arrived at her commencement wearing an eagle feather; and the school district prohibited her from attending the ceremony. In the lawsuit, the student alleged that other high school students were allowed to wear caps that violated the commencement dress code policy, such as a breast cancer awareness sticker. The court ruled in favor of the student, finding particular fault in the district’s selective enforcement of its policy such as not excluding a student’s secular message while burdening the student’s religious expression. The student also prevailed on her free speech claim.

Bottom line - schools may limit what students wear, as long as the restrictions relate to legitimate educational interests and are applied fairly and consistently.

In South Dakota, we have several laws which govern commencement regalia. For example, SDCL 13-1-66 states that schools “may not prohibit any Native American student from wearing an eagle feather, eagle plume, or an appropriate beaded graduation cap at a school honoring or graduation ceremony. A school administrator may determine if a beaded graduation cap is appropriate.” This legislative session a new law was passed regarding military-enlistment decoration which became effective March 11, 2025. SDCL 13-1-66.1 provides:

A student who is enrolled in a school district and has enlisted in the South Dakota National Guard or in a branch of the armed forces, as defined in § 36-1-2, may wear a sash, stole, or other military decoration at a school graduation ceremony, if the sash, stole, or decoration was issued to the student by the South Dakota National Guard or a branch of the armed forces, for the purposes of being worn at the graduation ceremony.

Both of these statutes are in effect this graduation season and you should keep them in mind if you receive a special request from a student seeking to wear commencement regalia that differs from board policy.

If you have any questions, please do not hesitate to contact us at ksb@ksbschoollaw.com or 402-804-8000.

Double Duty: Managing Employee Rights Under Both FMLA and ADA

With Nebraska and South Dakota both hosting their state business officials conferences this week, we figured there’s no better time to dive into two of every school business manager’s favorite acronyms—FMLA and ADA.  These laws show up often in school settings, and it’s usually up to business managers to spot where they apply and make the right call. But as you probably know, the FMLA and ADA don’t always play nice together, and the overlap can be tricky.

Understanding FMLA Obligations

Quick refresher - The FMLA entitles eligible employees to up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons.  As we approach the end of the school year, don’t forget there are special FMLA rules which apply to instructional staff.  The DOL posted a fact sheet about this topic here.  Here is a hypothetical scenario we created to demonstrate how this works:

Amanda, a high school science teacher, notified her principal on March 1 that she needs to take FMLA leave for surgery scheduled on April 1. Her recovery is expected to take six weeks, which means she would return to the classroom on May 14.  Classes for the school year end on May 23. 

Because Amanda is an instructional employee requesting leave more than five weeks before the end of the term and will be out for more than three weeks, the district has the option to require her to continue her leave through the end of the academic term. Under FMLA's special rules for instructional employees, this helps minimize disruption to students and allows the district to ensure continuity in classroom instruction.

In this case, the district determines that it would be less disruptive to place a long-term substitute in the classroom for the remainder of the term. They notify Amanda that her FMLA leave will be extended through May 23, even though she may be medically cleared to return earlier. This is permissible under the FMLA’s instructional staff provisions, as long as it is clearly communicated and documented.

ADA and Reasonable Accommodations

Under the ADA, employers must provide reasonable accommodations to qualified employees with disabilities, unless doing so would cause undue hardship. A recent school district case from the state of Virginia (Jordan v. School Board of the City of Norfolk, 640 F.Supp. 3d 431 (E.D. Va. 2022)) highlights the importance of understanding what constitutes a reasonable accommodation.  In this case, a school principal's request to work remotely due asthma and restrictive lung disease was denied, with the court ruling that physical presence was an essential function of her role as a principal. (Double-check your job descriptions!)

Interplay Between FMLA and ADA

There are scenarios where both FMLA and ADA considerations apply.  For instance, an employee may exhaust their FMLA leave yet still be entitled to additional leave as a reasonable accommodation under the ADA.  Schools must assess such situations carefully to ensure compliance with both statutes. 

Best Practices for Administrators

• Proactive Communication: Maintain open lines of communication with employees. Remember - employees do not have to utter “magic words” requesting leave under the FMLA or an accommodation under the ADA.

• Documentation: Keep thorough records of all leave requests, accommodations, and related communications.​

• Training: Ensure business managers, bookkeepers, and supervisors are well-versed in FMLA and ADA requirements.

If this blog post makes you worried that you or your principals may be lacking on FMLA or ADA training, we have good news!  This week we are launching two on-demand video series to help school administrators - one for the ADA and one for the FMLA.  The videos are quick 20 minute on-demand content to help train your team on how to recognize and respond to requests.  The FMLA series also includes a handy flowchart which works through the special rules for instructional staff.  To register or request more information, click here.  If you have any questions regarding ADA or FMLA compliance, send us all an email at ksb@ksbschoollaw.com.

You Heard Us Say It Once, You Will Hear Us Say It Again: The Importance of the ADA Interactive Process for School Employees

Another ADA blog post? You bet!  We continue to see superintendents, principals and business managers have questions on this hot topic.  To check out previous blog posts on the ADA, go here, here, or here. On March 25, 2025, the United States Court of Appeals for the Second Circuit issued an interesting decision in Tudor v. Whitehall Central School District, addressing the obligations of school districts under the Americans with Disabilities Act (ADA).  While our NE, SD, and WY schools are not in the Second Circuit, this case demonstrates the importance of employee accommodations.

In this case, a high school math teacher with approximately 20 years of service at a school district had suffered from post-traumatic stress disorder (PTSD) stemming from prior workplace incidents at another employer involving sexual harassment and sexual assault. To manage her condition which impacted her neurological functioning and speech, the teacher had an accommodation since 2008 allowing her to leave the school for brief 15 minute periods during her prep periods to alleviate PTSD symptoms.​

In 2016, the school district implemented a policy prohibiting teachers from leaving school grounds during prep periods.  Despite informing the administration of her existing accommodation, the teacher’s requests to continue her off-campus breaks were denied, leading to reprimands for insubordination when she attempted to adhere to her prior ADA accommodation.  She subsequently filed a lawsuit alleging that the district failed to accommodate her disability as required by the ADA.​

The district court granted summary judgment in favor of the school district, reasoning that since the teacher could perform her essential job functions without the accommodation, the district was not obligated to provide it.  However, the Second Circuit disagreed and ruled in favor of the teacher,  clarifying that an employee's ability to perform essential job functions without accommodation does not negate the employer's duty to provide reasonable accommodations for known disabilities.  The Court specifically said:

​an employer must, absent undue hardship, offer a reasonable accommodation--such as a modified work schedule--to an employee with a disability if that employee is capable of performing the essential functions of her job with or without the accommodation. Under a straightforward reading of the phrase “with or without,” the fact that an employee can perform her job responsibilities without a reasonable accommodation does not mean that she must: she may be a “qualified individual” entitled to reasonable accommodation even if she can perform the essential functions of her job without one.  (emphasis added). 

What We Want School Administrators To Know

1. Proactive Engagement in the Interactive Process: Administrators must actively engage with employees who request accommodations (or those who indicate they may have a disability), even if the employee can perform their job duties without them.  The ADA requires employers to explore reasonable accommodations that enable employees to manage their disabilities effectively.​

2. Documentation and Consistency: Maintain thorough records of all accommodation requests and the district's responses.  If you do not have an ADA interactive checklist for this process, reach out to us as we have one available for purchase.

3. Training and Awareness: Provide regular training for administrative staff on ADA requirements and the importance of accommodations.  Mark this as a topic to cover at staff inservice.  We also have a training video available on our portal for on-demand access.

If you have any questions or would like to purchase the ADA webinar or interactive process checklist, please shoot us an email at ksb@ksbschoollaw.com or give us a call at 402-804-8000. 

Brainstorming Accommodations

When you hear the word accommodations, where does your brain go? If your mind immediately went to ADA workplace accommodations, that may be a sign you need a vacation. But thankfully, that also means you are in the right headspace to read about a tool from the Department of Labor. 

If you have ever had an employee request accommodations through the ADA, the process and the costs associated with those accommodations can sometimes feel daunting. When it comes to cost, survey data from the Job Accommodation Network indicate that the majority of accommodations reported by employers cost nothing to implement. If an accommodation costs money, 37% of the survey respondents report it as a one-time expenditure with a median cost of $300. For the 7% that reported ongoing costs, the median annual cost was reported at $1,925. 

Additionally, brainstorming the types of accommodations that exist can be a hurdle you just need a little nudge to overcome. The Job Accommodation Network launched a “Situations and Solutions Finder,” intended as a helpful starting point to get ideas about the kinds of accommodations that could be possible. Even though accommodations are an individualized determination informed through the ADA interactive process, this tool may just be the nudge needed. 

If you have any questions about the ADA, accommodations or would like to purchase our ADA interactive checklist  (or need vacation travel spots), give us a call at (402) 804-8000 or email ksb@ksbschoollaw.com.

FMLA, IEPs, and OMG—What Employers Should Know

Typically, when you see the word IEP in a title from KSB, it has something to do with legal compliance related to the IDEA. However, variety is the spice of life, which means let’s talk about compliance issues related to IEP meetings when it comes to the FMLA (yay?). 

The U.S. Department of Labor, in its letter FMLA 2019-2-A, addresses whether FMLA leave can be used for a parent to attend their child’s IEP meetings. The FMLA permits twelve weeks of unpaid leave for an employee “to care for the spouse, or a son, daughter, or parent, of the employee” if such person has a “serious health condition.” 29 U.S.C. § 2612(a)(1)(C). A serious health condition “means an illness, injury, impairment, or physical or mental condition that involves—(A) inpatient care in a hospital, hospice, or residential medical care facility; or (B) continuing treatment by a health care provider.” 29 U.S.C. § 2611(11).

In this case, the employee received certification from their child’s doctor that supports the employee’s need to take leave. DOL concludes that attendance at IEP meetings to address “the educational and special medical needs of your children—who have serious health conditions as certified by a health care provider—is a qualifying reason for taking intermittent FMLA leave.” The letter further states that the employee's attendance helps “participants make medical decisions concerning your children’s medically-prescribed speech, physical, and occupational therapy; to discuss your children’s wellbeing and progress with the providers of such services; and to ensure that your children’s school environment is suitable to their medical, social, and academic needs.”

So, what does this mean? If an employee requests FMLA leave to attend an IEP meeting for their child, the district must consider that request carefully. The logic of this letter likely also extends to requests to attend Section 504 meetings. The DOL letter presumed the child had a “serious health condition” and discussed the importance of attendance at the IEP meeting because of the parents ability to address both educational and medical needs.  Additionally, if you have a parent with whom it has been challenging to schedule an IEP meeting during the workday, you can suggest that the parent pursue FMLA leave through their employer.

Eligibility under the IDEA does not automatically mean a child has a serious health condition for purposes of the FMLA. If you receive such a request from an employee, you can still require the employee to provide medical certification that supports the child has a serious health condition. Additionally, the DOL letter seems to indicate that leave is permissible when the IEP meeting is about meeting the educational and medical needs of a child. However, if it is established that the child has a serious health condition, the hurdle of the meeting having to discuss medical needs seems rather low because the DOL discussed medical decisions in the context of school therapy providers (think OT, PT, etc.).

If this situation arises and you have any questions, call us at (402) 804-8000 or email ksb@ksbschoollaw.com. 

Ps. School administrators - We just released the “What School Lawyers Want You to Know” series of 20-minute on demand videos for South Dakota special education teachers and administrators on our webinar portal.  To register and read video descriptions, click here.  For Nebraska folks, our 24-25 Special Education Rookie & Refreshers series is available on our webinar portal as well.  If you missed registration and videos earlier in the fall, you can still register here and watch the recorded videos at your convenience!

Navigating Open Enrollment: Special Education Edition

Ask and you shall receive! At the South Dakota State Special Education Conference, we heard that open enrollment involving special education students is an area you all want more information on. So, what do you do when you receive an open enrollment application? What do you do if a student seeking to transfer needs special education and related services? Hopefully, this blog can help spark a conversation about the review process of those open enrollment applications within your district. Additionally, we have created a free resource to provide a visual representation of what that open enrollment application process can look like for applications involving students that need special education services. (Yay flowcharts for our visual processors!) 

First and most importantly, if a student requesting a transfer needs special education and related services, that cannot be an automatic reason to reject the request. Instead, the district must individually review the student’s records and needs.

What does that mean practically when you first get that application? First, the district should work at obtaining “copies of all relevant student education records.” SDCL 13-28-42.1. The best practice is to request those records from the student's resident district rather than seeking those records directly from a parent. Once you receive those records and you see that a student has an IEP, those records need to make their way into the hands of the appropriate special education professional based on the student’s grade level and district administration structure. 

Once they are in the hands of the special education professional, that person must review the records and assess the student’s needs and the District’s ability to meet them. Additionally, the district is responsible for directly communicating “with the student's parent or guardian and representatives of the resident district regarding the student's special education or special education and related services needs.” SDCL 13-28-42.1. At this point, two outcomes could happen. First, the district may determine that it can provide the appropriate program and meet the student's needs. If that is the determination, the district should complete its open enrollment process, follow the five-day decision communication deadline (discussed below), and enroll the student. In addition, the district would need to determine if the student requires transportation as a related service. 

In the second option, if the district believes it cannot meet the needs, it must “initiate an individual education program team meeting consisting of representatives from both the resident and nonresident districts to determine whether the nonresident district can provide an appropriate instructional program, facilities, and transportation, if necessary.” SDCL 13-28-42.1. Based on that meeting, it would have to be determined if the nonresident district can meet the student's needs or if the nonresident district cannot. Once a decision is made, that decision needs to be communicated within five days by following the guidelines on the open enrollment application form. Additionally, we recommend that the district send an accompanying letter reflecting that decision. KSB offers an open enrollment denial letter that can help serve as a starting point for a flat fee. 

If you have any questions about open enrollment or want to learn more about purchasing a denial letter template, please email us at ksb@ksbschoollaw.com. 

Ps. School administrators - We just released the “What School Lawyers Want You to Know” series for special education teachers and administrators on our webinar portal.  The series consists of fourteen 20-minute on demand videos that provide quick hits of essential legal knowledge that are perfect for watching during lunch breaks, planning periods, or using for staff professional development.  To register and read video descriptions, click here.

Are Evaluations Happening? Boards Can't Peek, But They Can Verify.

School boards don’t get to play Big Brother with staff evaluations—they’re confidential for good reason. But that doesn’t mean administrators get a free pass. How can boards ensure evaluations are happening without violating privacy?

Evaluation Requirements in Nebraska

Nebraska law sets clear guidelines for the evaluation of staff members who hold certificates from the Nebraska Department of Education. 

• Probationary staff (those in their first three full years) must be evaluated each semester. 

• Tenured staff are evaluated per board policy—some annually, others on a 2-3 year cycle. 

• Other certificated staff, including principals, counselors, social workers, and media specialists, must be evaluated under the same tenure laws.

Key Deadlines for Boards & Teachers

• March 15: Is the earliest date districts can require teachers to return binding renewal agreements or new contracts for the next school year. Given the significant teacher shortage in Nebraska, we have many districts who utilize the March 15 renewal deadline.  Be careful, however, as the teacher who returns his/her contract or renewal agreement on March 15 can argue that the district is also required to employ the teacher next year – in other words, if you are considering nonrenewal or termination, do NOT issue a contract or renewal agreement with a March 15 return date to that staff member.

• April 15: Deadline for non-renewal or termination notices. After this date, the district is automatically required to employ the teacher next year unless the district has issued notice of nonrenewal or termination to the teacher by that date.  

• April 15 applies to teachers too! After this date, teachers are contractually locked in regardless of whether they have signed and returned a contract unless they resigned earlier or your board policy/negotiated agreement allows late resignations.  If so, it’s time to change that.

Accountability Without Overreach

Boards can’t review evaluations in anticipation of these deadlines, but they can require proof that the evaluations are happening. By the same token, administrators don’t get the chance to share the results of the hours they spend on great staff evaluation, but administrators can ensure that the board knows that they’ve completed this vital work.  As an example of how this accountability can occur, we’ve created sample spreadsheets as a board-accessible tracking tool that can be shared by the administration in a board report without violating confidentiality.  Cells gray out based on tenure status and whether a tenured teacher is on- or off-cycle, making it easy to verify compliance.  If you would like to see a copy of the spreadsheet, fill out this Google form and we’ll email you the spreadsheet that corresponds with your board’s policies. (We promise we won’t use your email from this sheet for any other purpose!)    

We are constantly trying to find new ways to make the lives of school boards, administrators, and the education community easier.  If you have questions about these spreadsheets, or if you would like them customized to your district, let us know.  And if you have questions about the evaluation and contract renewal process generally, we’re happy to help.  Please call us at (402) 804-8000 or email ksb@ksbschoollaw.com if you have any questions. 

Are Evaluations Happening? Boards Can't Peek, But They Can Verify.

School boards don’t get to play Big Brother with staff evaluations; administrators are hired for a reason. But that doesn’t mean administrators get a free pass. How can boards ensure evaluations are happening without violating privacy?

Evaluation Requirements in South Dakota

South Dakota law sets clear guidelines for the evaluation of teachers who hold certificates from the South Dakota Department of Education. 

• Nontenured staff (those in years one through three) must be evaluated not less than annually.  Some negotiated agreements change this requirement to each semester.

• Tenured staff (teachers in their fourth contract year or beyond) are to be evaluated not less than every other year.  However, check your negotiated agreement as many provide yearly evaluations. 

• Principals and assistant principals must be evaluated at least once per year for the first four years of employment with a district and at least every other year thereafter. 

Key Deadlines for Boards & Teachers

• April 15: Deadline for non-renewal notices.  Teachers in years 1-3 of a consecutive term of employment, may be nonrenewed for any reason without further process.  When a teacher is in year 4 or beyond, just cause for termination must exist with an opportunity for a hearing.  After April 15, the district is automatically required to employ the teacher next year unless the district has issued notice of nonrenewal to the teacher by that date.  

• April 15 applies to teachers too! After this date, teachers are contractually locked in regardless of whether they have signed and returned a contract unless they resigned earlier or your board policy/negotiated agreement allows late resignations/liquidated damages.  

Accountability Without Overreach

Boards can’t review evaluations in anticipation of these deadlines, but they can require proof that the evaluations are happening. By the same token, administrators don’t get the chance to share the results of the hours they spend on great staff evaluation, but administrators can ensure that the board knows that they’ve completed this vital work.  As an example of how this accountability can occur, we’ve created sample spreadsheets as a board-accessible tracking tool that can be shared by the administration in a board report without violating confidentiality.  Cells gray out based on tenure status and whether a tenured teacher is on- or off-cycle, making it easy to verify compliance.  If you would like to see a copy of the spreadsheet, fill out this Google form and we’ll email you the spreadsheet that corresponds with your board’s policies. (We promise we won’t use your email from this sheet for any other purpose!)  Also, South Dakota schools need to check their negotiated agreement as your mileage may vary for these spreadsheets.

We are constantly trying to find new ways to make the lives of school boards, administrators, and the education community easier.  If you have questions about these spreadsheets, or if you would like them customized to your district, let us know.  And if you have questions about the evaluation and contract renewal process generally, we’re happy to help.  Please call us at (402) 804-8000 or email ksb@ksbschoollaw.com if you have any questions.