PPACA (“Obamacare”) Reporting: Yep, It’s Back!

Administrators, we love you, but before you read another word, forward this to your school’s or ESU’s business official(s)!  Seriously, do it now...

Reporting Workshop: Dec. 11, 2017. 

KSB is partnering with NCSA to conduct the annual Obamacare Reporting workshop again this year.  The workshop will be on December 11 from 9 to noon Central Time, and you and/or your business official(s) can attend in person at KSB, over ZOOM from your district, or by purchasing the recording of the presentation and materials to view at your convenience. 

Here’s the link to register and where you can find more information: https://www.ksbschoollaw.com/ppaca

Reporting Obligations for 2017. 

All “Applicable Large Employer” schools and ESUs in Nebraska have completed PPACA (aka “Obamacare”) reporting for the last several years.  Given the political rhetoric out there and campaign promises of repealing Obamacare, we did not think it would survive 2017.  However, Obamacare is still the law of the land—for the most part.  While various executive orders have come down and the new tax law purports to eliminate the “individual mandate,” the substance of Obamacare which applies to employers is still intact.  So, that means Obamacare reporting must be on your “to do” list this holiday season.

Schools and ESUs (other than those who self-insure) will be reporting using the 2017 versions of the 1094-C and 1095-C forms.  Here are the instructions for both forms, as well.  All of these should look familiar.  Additionally, here are the deadlines for the 2017 reporting cycle, which are also similar to past years:

January 31, 2018: 1095-C to Employees

February 28, 2018: paper filing 1094-C and 1095-C’s to IRS

April 2, 2018: electronic filing 1094-C and 1095-C’s to IRS

Because most schools and ESUs are filing electronically with the IRS, January 1 and April 2 are the important dates to calendar this year. 

One piece of homework to complete prior to reporting is to assess whether your “cash in lieu” or other “opt out arrangements” you may have will impact your reporting for 2017.  During the reporting workshop last year, Karen and Bobby covered how cash in lieu and other benefits given in exchange for declining insurance would impact your reporting and potential penalty liability.  There was transition relief available last year that is not available this year, so we recommend analyzing those issues early to ease your reporting obligations.  We will cover this in the reporting workshop, but better to start that analysis now since each district’s system is unique.

We also recommend communicating in advance with your payroll software companies to see what guidance and assistance they will be providing to help you with your PPACA reporting.  Some companies are more helpful than others, and please keep in mind that their advice does vary.  We recommend contacting them prior to attending the reporting workshop so that you will be able to form a reporting plan once you have all of the updated information for the 2017 reporting cycle.

In the meantime, if you have any questions about whether you are required to report as an “Applicable Large Employer” or about your various reporting obligations, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Refresher on the Superintendent Pay Transparency Act

This is a good time to pause and remember the requirements of the Superintendent Pay Transparency Act. The Act requires school districts and ESUs to publish both the superintendent’s/administrator’s contract and a "reasonable estimates and descriptions of all current and future costs"; Most districts and ESUs have just added another tab or link on the homepage of their website under which the contract and a copy of “Schedule D” from the state auditor can be found.

We have received many questions on what school districts should do to comply with the Act as part of the renewal process. When the board is preparing to renew a contract the board must:

1. Post the proposed contract and related costs 3 days before the board meeting at which the contract will be approved or amended;
2. Post the contract and the related costs within 2 days after the meeting at which the contract is approved;
3. Publish an updated Schedule D any time the “future costs” change; and
4. Provide a copy of the contract and any subsequent amendments to the NDE by August 1 st following the adoption or amendment of the contract.

Any new contract, changes to an existing contract, or automatic renewals should comply with the posting requirements discussed above. For example, if the board and superintendent agree to amend the superintendent's contract in January of 2016, the district should post the contract 3 days before the meeting, update the posting on the website within 2 days after the meeting to include the changes approved by the board, and send a copy to the NDE before August 1 once the contract is final. The board should also post a new Schedule D.

The board may need to comply with the Act multiple times if there are changes made to the superintendent’s contract in separate meetings.  For example, the board may extend or renew the Superintendent’s contract in January and set the Superintendent’s salary in March. In that case, the board would have to comply with the Act both times.

Finally, we have been getting many questions regarding how to post the contract, Schedule D, and notice for the board meetings. First, be sure to put the consideration of changes to the superintendent’s contract on the board agenda.  Complying with the Act does not substitute for following the Open Meetings Act. As for posting the contract and the Schedule D, there is no right or wrong answer.  Here is what the Act says:

Electronic publication on the web site of the school district or educational service unit shall satisfy the requirement of this subsection if such electronic publication is prominently displayed and allows public access to the entire proposed contract or amendment [and the Schedule D].

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

Get Ready to Get Exhausted: Grievance Procedures Should be Followed Before Going to Court

Most, if not all, school districts and ESUs have a grievance procedure which allows staff to allege violations of the negotiated agreement or board policy relating to their employment.  Absent a formal grievance procedure, certificated staff are guaranteed the ability to challenge an administrative decision through the chain of command, and/or to present their version of the facts surrounding a disciplinary action at a formal due process hearing by Neb. Rev. Stat. § 79-826.  The issue that has arisen due to a recent Nebraska Supreme Court case is this: does a staff member have to use the district’s grievance procedure, and exhaust the appeal process within it, before filing a lawsuit?  The Nebraska Supreme Court has indicated that when the grievance procedure is a term of the contract, the answer is “yes.”

New Case Law

In Armstrong v. Clarkson College, 297 Neb. 595 (2017), a nursing student sued the college for breach of contract.  The student was put on “administrative probation” and removed from classes based on misconduct at a conference, and the college removed her from her program.  While the case discussed the student’s claim in the context of the college’s grievance procedure as applied to the student, we believe the reasoning relating to grievance procedures will be applied to public schools and ESUs. 

While the case contains other issues, the primary focus for public schools and ESUs is the Court’s analysis of whether the student was required to use the college’s grievance procedure before filing a lawsuit.  Ultimately, the Court adopted Colorado’s stance that in the application of a grievance procedure, any ambiguity as to whether an individual must exhaust the grievance procedure is to be resolved in favor of using the grievance procedure as the exclusive remedy for challenging an administrative action.  If an individual subject to a grievance procedure could simply bypass it even though they could have used it to pursue the relief they wanted, it would render grievance procedures toothless. 

The Court elaborated on the reasons why the rule exists, saying that “the exhaustion requirement gives the school the opportunity to correct its own potential mistakes though its grievance procedure.”  Courts generally do not want individuals to run to the courthouse and file a lawsuit when another remedy exists.  It also pointed out that teachers subject to grievance procedures still have the ability to bypass the grievance procedures if they can show that filing a grievance would be futile, the grievance procedure offers an inadequate remedy, or the individual was prevented from using the grievance procedure.  Finally, the Court stated that grievance procedures should be clear on applicability as much as possible, such as whether they are available to former employees.

Language that Could be Proposed During Negotiation

In light of the Court’s ruling, in order to bypass a district’s or ESU’s grievance procedures and head directly to court, a staff member would need to get explicit language into a negotiated agreement or policy that showed the grievance procedure was optional.

The NSEA is advising all of its negotiators to push for including one of the following provisions, depending upon where the grievance procedure is located:

Where a grievance procedure appears in board policy only: the parties agree that use of the board’s grievance policy is discretionary and is not a condition to presenting a claim for violation or variance of the Negotiated Agreement or an individual employment contract before a court of competent jurisdiction.

Where a grievance procedure exists within the negotiated agreement: the parties agree that use of the grievance procedure herein is discretionary and is not a condition to presenting a claim for violation or variance of this agreement or an individual employment contract before a court of competent jurisdiction.

Where a grievance procedure exists in both board policy and within the negotiated agreement: the parties agree that use of the grievance procedure in board policy and herein is discretionary and is not a condition to presenting a claim for violation or variance of this agreement or an individual employment contract before a court of competent jurisdiction.

Just Say “No"

We recommend saying “no” to any request to make your grievance procedure discretionary.  As Armstrong makes clear, the NSEA is attempting to remove the grievance procedure exhaustion requirement.  By softening the district’s grievance procedure requirement and turning it into an optional method for resolving conflict between staff and the administration, rather than a required one, districts and ESUs would needlessly allow themselves to be pulled into court for any perceived violation of a contract or policy. 

While some grievances may have merit, it is the Armstrong Court’s clear position that the district or ESU should be permitted the opportunity to resolve these violations internally, rather than pay for unnecessary litigation.  Grieving parties can still go to court once they have filed a grievance and appealed it as necessary according to board policy.

Conclusion

We think there are local political reasons to cite at the bargaining table when addressing this issue.  Frivolous lawsuits will always exist, but by directing certificated staff to use internal grievance procedures before they are permitted to file in court the district will save valuable school resources, namely time and money.  Should changes such as the ones discussed above be proposed during your negotiations with certificated staff we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Ignorance is Bliss: Board Members and Student Records

The old adage “ignorance is bliss” does not usually gain much traction in schools (or law firms) that work to disseminate knowledge and information.  We regularly field questions from schools about how much access board members can have to student records.  The Family Educational Rights and Protections Act, commonly called FERPA, governs the analysis of these questions.  At times, board members feel that access to student information is helpful to serve students.  However, according to FERPA and the agencies that enforce it, the question should really come down to whether the access is necessary to serve students.  In this context, the answer we often give board members is that ignorance really is bliss (so long as your definition of bliss is compliance with the law and receiving federal funds).  In most cases, even the most well intentioned board members lack the requisite educational interest required to access student records under FERPA lawfully.

FERPA Restrictions

FERPA is a federal law that, among other things, protects the confidentiality of student records.  With limited exceptions, FERPA requires signed and dated written consent from a parent or eligible student before a school can disclose personally identifiable information from the student’s “education records.”  34 CFR § 99.30.  Education records include any records that directly relate to a student and are maintained by an educational agency or institution.  Id.  Personally identifiable information, or PII, includes information which can alone, or in combination, allow a reasonable person in the school community to identify the student with reasonable certainty.  34 CFR § 99.3.  

Practically speaking, a student’s name on a grade report, down list, or discipline record would be protected PII from an education record.  Other information included in a record, such as the student’s grade level, student ID number, address, or date of birth may also meet the definition of protected PII.  For a board member to access student records that include PII, written consent is required unless the disclosure falls under one of the narrow exceptions.  In this context, the most relevant exception would be the “school official exception.”

School Official Exception

FERPA provides several limited exceptions to the requirement that written consent be provided before a school can disclose PII from an education record.  Under the school official exception, disclosure is permissible to other school officials so long as the school official is acting with legitimate educational interests.  For purposes of FERPA, a board member is a school official. See U.S. Department of Education FERPA General Guidance for Students.  To be eligible for the school official exception, a board member can only access education records containing PII for which there is a legitimate educational interest.

On its face, this may seem like a low threshold.  However, in practice this standard is usually stringent.  Each school is required to provide parents an annual notification of rights under FERPA.  This notification should inform parents how the school defines “school official” and clearly articulate what the school considers a legitimate educational interest.  See Letter to Heiligenthal, 16 FAB 10 (FPCO 2012).  If you are a policy subscriber, you will soon be receiving updates that will bring your notice in compliance with this standard.  The Department of Education advises that, generally, a school official “has a legitimate education interest if the official needs to review an education record in order to fulfill his or her professional responsibility.”  See, FERPA General Guidance for Students (emphasis added).  This standard has the approval of the Department of Education and appropriately protects student records from unnecessary exposure.  The forthcoming update will more clearly refer to this standard in our model notification.

When applied, this standard usually excludes board members from being eligible for the school official exception.  Given the usual responsibilities of board members, in most instances it is unlikely that the member would need to review an education record in order to fulfill his or her professional responsibility. 

An example of when a board member would have a legitimate educational interest to access student records would be when a student appeals a disciplinary action.  In this context, a board member, in order to fulfill his or her professional responsibility, would most likely need access to specific education records related to behavior and discipline.  However, this educational interest probably would not extend to all of the student’s records.

An example of when a board member would lack a legitimate educational interest to access student records would be when a board member wishes to access grade reports that include names or other PII.  It is difficult to think of a situation where a board member would need to access such records to fulfill his or her responsibilities.

Nebraska State Law

Interestingly, Nebraska state law in section 79-2,104 does not authorize board members to access any education records.  However, the statute goes on to say that it does not preclude or prohibit the disclosure of student records so long as it would be authorized pursuant to FERPA. 

Conclusion

As noted above, it is relatively rare for a school board member to have the requisite educational interest to access student records under the school official exception.  Without meeting this exception, the parent or eligible student who the record refers to must expressly consent to disclosure in writing.  While these restrictions on access can be frustrating for board members, and understandably so, the Department of Education has advised that school districts are best insulated from complaints when they limit their definition of legitimate educational interest.  Board members, when it comes to student records, a good rule of thumb is that ignorance is bliss.  When it comes to your legal obligations under FERPA, or any other issue, a good rule of thumb is to bring your questions to your school attorney, or call Karen, Steve, Bobby, or Tim.

Understanding the Most Recent Title IX Update

When Donald Trump took office, he made it clear that his administration would be making changes to Title IX enforcement.  On Friday, September 22nd, the US Department of Education announced that it was withdrawing two major Title IX guidance documents which had been issued by the Obama administration.  In a ten-page Q&A on Campus Sexual Misconduct (found here), the US DOE discusses its intentions to engage in further rule-making processes on Title IX enforcement.  It also provided information about how OCR will assess and evaluate Title IX compliance in the meantime. To the extent that the new guidance is incomplete, the Department has returned to the standards articulated in the 2001 Revised Sexual Harassment Guidance (found here).  While this update will discuss some of the most important features, all school officials should read the new guidance for themselves.

Schools’ Responsibility under Title IX 

Your general obligations under Title IX have not changed.  “An institution that receives federal funds must ensure that no student suffers a deprivation of her or his access to educational opportunities on the basis of sex.”  In order to fulfill this obligation, “where the school knows or reasonably should know of an incident of sexual misconduct, the school must take steps to understand what occurred and to respond appropriately.”

How OCR Will Assess Compliance

One of the main criticisms of the 2011 Dear Colleague letter, was that it over protected the rights of individuals making accusations about Title IX violations while failing to provide basic protections to those accused of sexual misconduct.  The new guidance is clear that a school must offer the same rights, opportunities, services, and evidentiary access to both the person alleging a violation as well as the person who is being accused.  The new guidance also reminds schools that they “must formulate, interpret, and apply their rules in a manner that respects the legal rights of students and faculty, including those court precedents interpreting the concept of free speech.” 

In determining if a school has met its obligation, the OCR will first look to ensure that the school has adopted and published grievance procedures “that provide for a prompt and equitable resolution of complaints of sex discrimination, including sexual misconduct.”  Thus, the focus will be on ensuring that the response to an incident the school knew or should have known of was prompt and equitable.

Prompt and Equitable Investigation

The most substantial changes brought about by the new guidance are the determinative elements of a “prompt and equitable investigation.” 

“OCR has identified a number of elements in evaluating whether a school’s grievance procedures are prompt and equitable, including whether the school (i) provides notice of the school’s grievance procedures . . . (ii) applies the grievance procedures to complaints filed by students or on their behalf alleging sexual misconduct . . . (iii) ensures and adequate, reliable, and impartial investigation of complaints, including the opportunity to present witnesses and other evidence; (iv) designates and follows a reasonably prompt time frame for major stages of the complaint process; (v) notifies the parties of the outcome of the complaint; and (vi) provides assurance that the school will take steps to prevent reoccurrence of sexual misconduct and to remedy its discriminatory effects, as appropriate.”

2017 Q&A on Campus Sexual Misconduct (emphasis added).  These elements provide the basis for an OCR review of a school’s investigation.  Significantly, these elements diverge from the standards set forth in the 2011 Dear Colleague in several ways. 

In terms of ensuring an “equitable” investigation, schools now have a choice about how they will determine whether sexual misconduct has occurred.  Institutions may use either the “preponderance of the evidence” standard or a “clear and convincing evidence” standard.  Think of it as the difference between 51% and something closer to 75% in terms of the evidentiary burden to prove a Title IX violation occurred.  This is a significant development.  Given the politicized reactions to allegations of sexual assault and harassment, the choice of which standard to use in evaluating these allegations will become important.  We believe boards of education are the proper entities to decide which standard their school will adopt. KSB Complete Policy Service subscribers will be receiving an updated policy to address this and other changes from the new guidance.

Similarly, the Department has rejected the 2011 Dear Colleague letter’s standard of a 60-day response period for a “prompt” investigation.  Instead, “OCR will evaluate a school’s good faith effort to conduct a fair, impartial investigation in a timely manner designed to provide all parties with resolution.”  This means the board’s policy should have clear timelines, but those timelines are not limited to 60 days.

Finally, the new guidance is clear that the Department wants to ensure that “any rights or opportunities that a school makes available to one party during the investigation should be made available to the other party on equal terms.”   The only exception is that a school may choose to allow appeals from the responding party, only.  A school could choose to allow no appeals from its decisions, an appeal for only the responding party (the accused), or an appeal option for both parties.  However, if both parties are allowed to appeal, the appeal process must be the same.

Conclusion

In many ways, the new guidance from the Department is a rejection of the policies and standards set forth and adhered to by the previous administration.  Overall, the document demonstrates that the Office of Civil Rights seeks to ensure that schools put forth good faith efforts “to conduct fair, impartial investigations in a timely manner designed to provide all parties with resolution.”  In doing so, reviews will look to make sure that all parties were afforded equal rights and protection.  The guidance also signals an increased emphasis on due process rights for the accused.  Until the Department completes its intended rule-making process, this document will serve as the best understanding of the new administration’s interpretation and enforcement of Title IX. 

On January 30, 2018 ESUCC and participating ESUs will sponsor a Title IX training by the attorneys at KSB.  This will fulfill your Title IX Coordinator’s annual training requirements.  During that workshop, we will review this new guidance along with other recent Title IX developments.  In the meantime, if you have any questions or concerns about your school’s obligations, or how the new guidance will influence your investigation processes, we recommend you contact your school attorney, or call Karen, Steve, Bobby, or Tim.

Incentives for Voluntary Termination of Employment

LB 512 went into effect on September 1, 2017. Among other things, it sets up duties for school districts that offer Golf Subsides voluntary termination incentives to certificated employees, and phases out the ability of the board to exclude the expense of such programs from the levy limit.

The Statutes

Neb. Rev. Stat. § 79-8,142 establishes the duties of the district when creating an incentive for voluntary termination for teachers, and when paying voluntary termination incentives.  The main take-aways are:

1. $35,000 maximum on incentives.
2. Time limit on payment: five years from the certificated teacher’s voluntary termination, or before the certificated teacher becomes eligible for Medicare; whichever is earlier.
3. The district must demonstrate to the satisfaction of the State Board of Education that the payment of the incentive will result in net savings in salary and benefit costs over a five-year period.
4. Any voluntary termination incentives cannot be included in any collective-bargaining agreement.
5. All voluntary termination incentives paid out must be reported on the annual financial report to NDE.

Neb. Rev. Stat. § 77-3442 is the home of the property tax levy, the maximum levy limit, and the exceptions to that limit.  Prior to LB 512, the statute excluded payments made as an incentive for voluntary termination from the levy limit.  LB 512 has removed this exclusion.  Districts are required to pay for incentives for voluntary termination within their levy limit.  Districts that hit their limit and need to raise additional funds to make incentive for voluntary termination payments can do so outside the levy limit if the incentive is contained in a collective bargaining agreement that was in place prior to September 1, 2017.  The district can only partially pay for the incentives this way, and that exclusion decreases annually in a stair-step fashion to phase out the exclusion by 2020. 

If a district is at the maximum levy limit, the district can pay up to 75% of the incentives it committed to in a collective bargaining agreement prior to September 1, 2017 with funds excluded from the levy limit.  The levy exclusion to pay pre-existing incentives drops to 50% in 2018-19, 25% in 2019-2020, and is phased out at the start of the 2020-2021 school year. 

How this Affects Schools

If your district currently offers an incentive for voluntary termination, and pays for it within the levy limit, you shouldn’t have a change in how you pay for the incentives.  However, you are no longer able to include those incentives in a collective bargaining agreement, and all incentives for voluntary termination for teachers going forward are subject to the constraints of Neb. Rev. Stat. § 79-8,142.

If your district is currently paying off voluntary termination incentives that were agreed to prior to September 1, 2017 you may be able to partially pay for those incentives with funds excluded from your levy limit.  This will depend on your current levy amount and whether or not the incentives were included in your collective bargaining agreement. 

The new statutes have added a fairly complex layer to how early retirement incentive programs are funded.  Any voluntary termination incentives currently on the books will need to be reworked to meet the new statutory requirements, and any existing payment commitments will need to be funded appropriately.  If you have any questions about these obligations, or any other issue, you should contact your district’s attorney or call Karen, Steve, Bobby, or Tim.

Gather ‘round and Take a Knee: Praying You Don’t Get Caught Violating the First Amendment

After watching the Husker defense in their first two games, Husker fans are praying that Bob Diaco and crew figures out how to successfully turn the Blackshirts’ season around.  However, it is clear that the Ninth Circuit Court of Appeals would disapprove of that reaction.  The west coast is the birthplace of the Colin Kaepernick National Anthem kneel, and now its federal appeals court just released an opinion on a very common sight on Friday nights: a high school football coach leading a prayer on the field after each game.  The court ruled that the constitution did not protect the coach’s prayer.  In fact, according to the concurring opinion, the nature of the coach’s prayer itself likely constituted a violation of the Establishment Clause of the First Amendment by the school district.

Facts of the Case 

In Kennedy v. Bremerton Sch. Dist., No. 16-35801, 2017 U.S. App. LEXIS 16106 (9th Cir. Aug. 23, 2017), Joseph Kennedy, an assistant high-school football coach, alleged that the Bremerton School District infringed upon his First Amendment rights when the school instructed him to cease his on-field prayer after games and then fired him when he refused to comply.  Kennedy went to court seeking an injunction that would compel the school to allow him to continue his public prayer on the field after games.  As in most First Amendment cases, the facts are important in understanding how the court came to its decision.

In 2008, Bremerton School District, a Washington school near Seattle, hired Kennedy as a football coach.  His contract set forth several provisions concerning his status as a role model to athletes, and in it he agreed that he would be “constantly observed by others” while acting as a coach.

From the beginning of his time as a coach, Kennedy would participate in the team’s locker room prayer before the game, and then pray again on the field after the game.  His post-game prayer was done soon after the end of the game, on the field, at the 50 yard line, and while he was wearing apparel marked with the Bremerton High School logo.  For the first few games, he kneeled to pray on the field alone.  However, soon into his first season with the team, a number of players asked to join him on the field for the prayer.  Eventually, the tradition grew to include many members of both his own and the opposing teams, and Kennedy would lead a short prayer and give a motivational speech to the participants.  According to Kennedy, his religion compelled this practice of praying on the field because his “prayer lifts up the players and recognizes their hard work and sportsmanship during the game.”  He also stated that his religious beliefs required the prayer to be done on the field of play. 

Until 2015, the Kennedy’s practice was unknown to the district’s administration, and for about seven years Kennedy led these prayers undisturbed.  However, after a visiting team’s staff mentioned the post-game prayers to a BSD administrator, the District took action.  The school notified Kennedy that his leading of prayers presented problematic issues under the Establishment Clause, and that while his actions were well intentioned he could no longer suggest, encourage, or supervise student religious activity while acting in his capacity as a coach.  The Superintendent further counseled Kennedy that, “if students engage in religious activity, school staff may not take any action likely to be perceived by a reasonable observer . . . as endorsement of that activity.” Finally, the district stressed to Kennedy that he was free to engage in religious activity, including prayer, which would not interfere with his job responsibilities.  To this end, the district offered him various accommodations that would allow him either to pray privately by himself, or to pray on the field after players, staff, and spectators left the area.

For a few weeks, Kennedy utilized the latter accommodation and adhered to the district’s policy.  However, after consulting with an attorney Kennedy decided that he had a constitutional right to continue his practice of saying a prayer on the field immediately after games. Media attention followed this decision, and when he prayed after the next game multiple people, including spectators, went onto the field to join him in prayer. 

After this incident, the district reiterated its position to Kennedy and insisted that he cease the practice.  The district received notice from a Satanist religion that they viewed the post-game field as a public forum open to religious ceremonies for the Satanist religion.  Once the Satanists told the district they, too, intended to engage in their speech within the “forum,” the district took further steps to keep all spectators from entering the field.  Leaving the forum open to Kennedy would have meant opening the forum to all speakers.  When Kennedy continued his practice in an insubordinate manner, the District placed him on leave and eventually terminated his employment.  After Kennedy’s departure, the student-athletes did not continue the post-game prayer.

The Decision

The Ninth Circuit determined that Kennedy did not have a First Amendment right to continue praying on the field after games, and that the District was not wrong for firing him after he continued to do so.  Central to this decision was the court’s observation that “Kennedy spoke as a public employee, not as a private citizen.”  This determination was based in part on the fact that Kennedy’s conduct took place immediately after the game, when he still had a duty to supervise and lead the players.  He was thus acting within the scope of his employment and responsibilities.  Further, the fact that Kennedy insisted that this prayer be in the view of student’s and spectators, rather than in private in accordance with the accommodations offered by the district, indicated to the court that the speech at issue was directed towards the students and public.

Take-Aways

As this decision demonstrates, First Amendment issues are often complex questions that mix law with specific, outcome determinative facts.  This decision also demonstrates that there are many instances in which the First Amendment will not protect a public employee’s demonstrable speech.  For school districts, the concurring opinion also notes that allowing an employee to engage in conduct such as Kennedy’s can raise issues with the Establishment Clause.  While the Ninth Circuit decision is not binding on Nebraska courts, schools in Nebraska should be aware of their obligations and their employee’s rights.  If you have any questions about these obligations or rights, or any other issue, you should contact your district’s attorney or call Karen, Steve, Bobby, or Tim.

KSB Husker Football Predictions Are In

Karen’s Prediction: 

While I try to embrace positivity in all areas of my life, the Huskers have broken my heart too many times for me to give in to the preseason hype.  My burning questions this year is, where, exactly, do we think we will generate points?  Tanner Lee wasn't all that impressive at Tulane, and his mother must be having preseason nightmares about the offensive line play down the stretch last year. (Anyone else remember Utter being manhandled by Iowa? IOWA, people?!) Three of our top four receivers are gone. Our top running back is gone and his back-ups have demonstrated a remarkable lack of durability in the past.  This means we must rely on brilliant play-calling by Danny Langsdorf to generate offensive yardage, which basically means we are doomed.  The one bright spot of the season is that we do get a bit of eye candy in the form of Bob Diaco.  But even if Diaco coaches as good as he looks, a first year defensive coordinator cannot save this season.  It hurts me to say it, but I predict that we'll go 6-6 in the regular season.  Thanks to a lower tier bowl will be able to claim a winning season by defeating weak opponent in December. 

Steve’s Prediction:   

The Huskers still play football?  You sure about that, Clark?  I thought their team moved to Youngstown a few seasons back.  But if you say so . . .  The Huskers take a break from smoking pot, driving drunk, and their other unlawful ways to squeak out victories against the Red Wolves, Huskies, and Scarlet Knights.  The Huskers will disappoint against the Ducks, Fighting Illini, Boilermakers, Wildcats, Golden Gophers, and Hawkeyes.  They will wish they were still under the influence after being manhandled by the Badgers, Buckeyes, and Nittany Lions.  It's a 3-9 season for your Nebraska Cornhuskers.  The only bowl they'll see is the one at the end of their pipe.  - Esteban, The Real Eye Candy (trademark pending).

Bobby's Prediction:

The Tanner Lee hype train is legit, OL play improves, and Diaco's defense plays fairly well. Still, the Huskers are a bit too thin at a few positions to take on their full slate in 2017. The crossover schedule is too much to win the Big Ten West, but the outlook is good as we're competitive in every game. I want to drink the KoolAid and say 10-2, but I'm going with 8-4 regular season and a bowl win for 9-4.

Tim’s Prediction: 

Lee has a decent year.  Running game is middle of the road.  Defense and O-Line improve, but aren’t quite there.  Lee cut his interceptions in half in his two years at Tulane, and I think he keeps that trend going as he matures at QB. Without a clear starting RB coming out of camp, running game looks to be an inconsistent committee.  Diaco is a heck of a coach, and I’m all-in on his defense, but it’ll take another year for it to be firing on all cylinders.  7-6.

Shari's Prediction:  

Growing up in Nebraska I have always been a Husker fan.  Then I married a Notre Dame fan and have become a follower of them as well.  Bob Diaco joining the Huskers after previously coaching at Notre Dame gave me something to look at, I mean gave my husband and I something to talk about.  While I hope the Huskers have a great season, after listening to all the chatter I am not that hopeful.  I will plan the parties, dress my kids in cute Husker clothes for game day and hope for the best.  My prediction - 9-3.  

We also wanted to remind you that KSB is having their tailgate party on Saturday, September 2nd.  We hope you all will join us.  Please remember to RSVP by clicking here.  

New School Year Grab Bag

The start of a new school year is always exciting, and also a little terrifying since there’s so much to do.  Here at KSB, we’re asking really important questions such as, “Will the Huskers win the Big Ten West on the strength of Tanner Lee’s right arm and Bob Diaco’s 3-4 defense?”  Steve says no, but he’s a Michigan fan so no one cares.

As you work through your beginning-of-the-year to-do lists and questions, here are a few things to consider:

Required Hearings, Notices, Trainings, and Reviews. 

Whether it’s student fees, parental involvement, dating violence, bullying, or others, state and federal law require schools to “review,” “collaborate,” “train,” and in some cases hold a “hearing” on various policies and topics.  You should make sure you’re crossing these items off your lists at board meetings and staff in-service days, if you haven’t already.  Our policy subscribers should review the document we provided entitled “Annual Notices 2017-18,” which lays out these requirements for reviews, hearings, trainings, etc.

Start Early on Possible Certificated Staff Personnel Cases. 

We often receive a call in February, March, or April about a teacher who has not been meeting district standards, in some cases for several years.  While early spring is not too late to do what’s best for kids—and we are very aggressive when prosecuting those cases if our clients think it’s best for kids—we almost always wish we had discussed them with our administrators earlier.  Beginning the teacher remediation and improvement process early is best for everyone involved.  It also makes sense – and is usually more cost-effective – to involve your school’s attorney early.  Often, poorly-performing teachers need to be told what to do with clarity, and attorneys can help administrators give directives that are both clear and obtainable.  A school attorney can also help the administrator craft an improvement plan that is both legally compliant and actionable by the teacher.  On the other hand, if the teacher does not make the required improvements, having your school attorney involved early can help the school move quickly into the non-renewal or termination process.  We believe schools are more likely to avoid a personnel hearing if the school attorneys are involved early in the process. While we treat each personnel case as though it could eventually lead to termination or non-renewal, we believe school attorneys can settle cases more easily and on better terms when the administration has involved legal early.

Our advice to administrators is to begin these conversations now, not in the second semester.  Principals, you should always know which staff members need to improve, what your evaluations say, and whether you are working toward building a legally sufficient case for termination if the teacher does not improve.  Superintendents, you should be asking all of your principals who their best and most underperforming teachers are and make sure their evaluations reflect it.  Board members, you should be encouraging your administrators to take the steps necessary to hold all staff members accountable to meet the standards which the board has set for your staff.

Finally, everyone should review their school board’s evaluation policy, handbook provisions, and evaluation instrument to make sure there are no unnecessary requirements.  First, make sure your administrators are using the evaluation instrument on file with the Nebraska Department of Education.  Second, make sure the policy and rubric does not require things which are not required by law.  We have seen far too many personnel cases where the administration failed to follow burdensome steps or where administrators distort the feedback they give teachers because of a poorly-designed instrument.  While evaluating administrators must follow the policy or practice adopted by the board, boards of education are always free to amend their policies.  Double-checking on all of this now you can help ensure the district isn’t tripped up in April on an issue that could have been spotted in September. 

PPACA (“Obamacare”) Insurance “Offers.” 

Despite the buzzwords “repeal and replace” being in the news a lot recently, Obamacare is still the law of the land.  It requires covered “large employers” to “offer” insurance to full-time staff on an “annual” basis.  Many schools have asked if that requires them to send out official “offer” documents to staff members each year.  The regulations do not specifically require a standalone offer document.  Plus, the vast majority of school employees have an established insurance offer through collective bargaining agreements.  However, as it relates to classified staff there are a few reasons why you may want to consider an offer/opt-out document this year.   

Things like the PPACA penalties and the cash-in-lieu rules are figured on an annual basis through PPACA reporting.  If you have a cash-in-lieu plan and aren’t setting it up as an “eligible opt-out arrangement,” then you could be subjecting yourself to risk of penalties under PPACA.  If you have no idea what “eligible opt-out arrangement” means, it’s probably a good time to call your school lawyer.

Additionally, individual employee eligibility (and any related penalties) are computed on an annual basis.  For most districts, this is established using the “lookback” aka “standard measurement” period to determine full-time status.  Since this could change from year to year, refiguring the status of your staff members right on the line of full-time status, and then providing an “offer” document to all full-time staff is a good contemporaneous record that you are complying with the hours tracking requirements and making an “annual” offer.

If you have any questions about these requirements or suggestions, you should contact your attorney or call Karen, Steve, Bobby, or Tim.  And if you see Steve at a conference, remind him that Jim Harbaugh is a flash in the pan!

Retention Attention: Know Your (Actual) Obligations Under FERPA

We frequently field questions from school psychologists, occupational therapists, speech pathologists, and others about how to handle their working notes made in the in the process of evaluating students for special education services.  Are education professionals obligated to preserve these notes?  Are parents entitled to review the notes?  Do parents have to be notified before these notes are destroyed?  These questions are part of a larger discussion about student record obligations under the Family Educational Rights and Privacy Act (FERPA), the Individuals with Disabilities Education Act (IDEA) and, to a lesser extent, the record retention schedules set by Nebraska’s Secretary of State pursuant to the Public Records Act. 

An evaluator’s notes are often essential to the evaluation process, but extremely context specific.  Taken out of context, or even simply viewed by someone other than the creator, these notes can lead to an inaccurate or incomplete portrayal of the evaluator’s opinions.  For this reason, both the evaluator who created the notes and the school district often prefer that they stay confidential and undisclosed.  Under FERPA and the IDEA, schools may withhold these notes from disclosure in two circumstances: if the notes are not maintained, or if the notes are maintained pursuant to the sole possession exception.

If the notes are not maintained.  

FERPA gives parents the right to access, amend, and control the disclosure of their child’s education records.  Under FERPA, “the term ‘education records’ is defined as those records that contain information directly related to a student and which are maintained by an educational agency or institution or by a party acting for the agency or institution.” Letter to Anonymous, 115 LRP 18603 (2015) (emphasis added).  Evaluator’s notes contain information directly related to a student, and thus meet the first half of the definition.  The determining factor then becomes whether the district has “maintained” these notes. If the school maintains the notes, they are educational records that parents may access upon request.  If the school does not maintain the notes, they are not educational records and there is no duty to allow access to them.

The U.S. Supreme Court has said that in a FERPA context, the word maintain means “to keep in existence or continuance; preserve; retain.”  Owasso Indep. Sch. Dist. No. I-011 v. Falvo, 534 U.S. 426 (2002).  Therefore, if a school does not intend to keep, preserve, or retain information, the information is not an education record.

Schools (not individual employees) get to decide whether they will maintain evaluator’s notes.  “[A] school is not generally required by FERPA to maintain particular education records or education records that contain specific information.  Rather, a school is required to provide certain privacy protections for those education records that the school selects to maintain.”  Letter to Anonymous, 115 LRP 18603 (2015) (emphasis added).    

Under FERPA, so long as it is permitted by other record retention requirements a school may also destroy records it has previously maintained unless there is an outstanding request by a parent to inspect and review the records of their student.  If the records relate to special education matters, as evaluator’s notes often do, the school must inform parents “when personally identifiable information collected, maintained, or used is no longer needed to provide educational services to the student.” Washoe County School District, 115 LRP 26190 (2015); 34 C.F.R. 300.624 (2017).

Sole Possession Exception.  

As noted above, information is not within the scope of FERPA obligations if it is not maintained.  There are also limited instances in which a school could maintain evaluator’s notes and still withhold them from disclosure. 

FERPA uses exceptions to exclude some specific school records from the definition of “education records” which may be accessed upon request.  Under the “sole possession exception” a school does not have a duty to disclose “records that are kept in the sole possession of the maker, are used only as a personal memory aid, and are not accessible or revealed to any other person except a temporary substitute for the maker of the record.”  34 C.F.R. 99.3 (2017). 

The FPCO, which enforces FERPA, has narrowly interpreted the sole possession exception.  In Letter to Baker, Complaint No. 1251 (2005) the FPCO stated:

In order to qualify for [the sole possession] exception, the notes or other records must be kept in the sole possession of the maker (except a temporary substitute) and be only used as a personal memory aid.  That is, the exception for “sole possession records” is intended to protect “personal notes” . . . It is not intended to exclude . . . detailed or comprehensive notes that record specific clinical, educational or other services provided to a student, or that record the school official’s direct observations or evaluations of the student behavior, including the student’s success in attaining specified objectives.

In some instances, evaluator’s notes may be detailed, comprehensive notes that record specific clinical, educational, or other services provided to a student.  However, this exception allows a school to maintain evaluator’s notes that meet the requirements without an obligation to provide access to them.

State Public Record Retention Schedules.  

Under Nebraska’s Public Records laws, public school employees and contractors must retain all records related to the operation of the school unless the retention schedules do not require their retention or have given permission for the records to be destroyed.  KSB attorneys are working with the Secretary of State’s office and a working group put together by NCSA to revise Schedule 10, the record retention schedule which applies to public schools.  Until Schedule 10 is updated to be more consistent with these other state and federal law obligations, we believe the authority to destroy evaluator’s notes can be found in Schedule 24, which was updated in 2015.   Under item number 24-89 of Schedule 24, school staff are permitted to destroy “working papers” either when the final report or study is completed or when they are no longer of reference value.  In our conversations with the staff from the Secretary of State’s office, they have indicated that they would rely on this item number to permit destruction of notes like those used by evaluators related to special education services.  As long as the evaluator’s notes can be considered “raw data, research materials and drafts used when creating reports, studies, etc.” they can likely be destroyed when they are no longer useful to the staff members who are working with them.

Check Your Record Retention Policy. 

As we noted above, the school district/ESU and not individual employees gets to decide what records the entity will “maintain” pursuant to FERPA.  Once a record is “maintained” it may also fall under the Secretary of State’s retention schedules.  If your school district or ESU uses the KSB policy service, your board was given three choices to select from in deciding what the entity will maintain.  The third choice provided:

[OPTION 3] For purposes of the district’s compliance with state and federal law, the district “maintains” as “student records” all records, files, and documents which are located in any format and within any storage unit of the district, whether in hard copy, digital, or otherwise. 

If your board opted to adopt this option, then evaluator’s notes will be student records pursuant to FERPA and state law.  In that instance, you would have to rely on the sole possession notes exception explained above if you wish to withhold the notes from a parent who requests them.

Conclusion.  

Under FERPA, a school district is required to provide parents access to education records.  If a school district chooses not to maintain evaluator’s notes, or if the notes meet the narrow sole possession exception, there is no obligation for disclosure.  Before destroying personally identifiable information that relates to special education students, a school must notify the parents.  If you have any questions about your district’s obligations under FERPA or the IDEA, please contact your attorney or call Karen, Steve, Bobby, or Tim.

A Title IX Challenge to a Title IX Enforcement

Editor's Note: After posting this article we learned that Professors Joe Dryden, David Stader, and Jeanne L. Surface had published an excellent article in the University of Idaho Law Review which did a comprehensive review of the issues in this post.  The full article "Title IX Violations Arising from Title IX Investigations: The Snake is Eating its Own Tail" can be found here. 

There has been a lot of discussion in the news and on college and high school campuses regarding “rape culture” and required responses from educational institutions covered by Title IX.  The University of Nebraska’s athletic programs have emphasized training and education in these issues, which has also been in the news.  All recipients of federal funding are required to provide Title IX training, including public schools.  If your district hasn’t provided this training to at least your Title IX Coordinator—or if you can’t name your coordinator as you read this—it’s time to audit your Title IX compliance before the school year begins.  A recent decision involving Colorado State University emphasizes this point even more.  It is a great illustration of how difficult it can be to respond appropriately to allegations of sexual assault while also protecting the rights of all parties involved. 

After the federal Department of Education’s 2011 Dear Colleague letter, many schools revised their Title IX investigation and complaint procedures.  In some instances, court cases and commentators asserted that the changes deny due process rights to accused individuals.  In the case discussed below, an accused student made this argument with a twist; he argued that the Title IX investigation and complaint procedures of Colorado State University violated his rights under Title IX by affording him and other male students a disproportionately unfair process on the basis of sex.  

Background of the Case

In Neal v. Colo. State University – Pueblo, one student alleged to a university staff member that Neal, a student-athlete involved in football and wrestling, had raped another student referred to anonymously as Jane Doe.  The complaint stemmed from assumptions the complainant made following a conversation with Jane Doe.  Jane Doe was in the University’s athletic training program and prohibited from fraternizing with athletes.  When the complainant approached Doe about a hickey on her neck, Doe attempted to conceal the nature of her relationship with Neal.  This led the complainant to assume Neal had raped Doe or that there was at least a basis to make a report.  Neither Neal nor Jane Doe were aware that the complainant had made the allegations.

A short time after the complaint, the school’s Title IX coordinator was notified and an investigation into the incident began.  The investigation concluded in a decision finding Neal guilty of sexual misconduct.  The administration declined to hear an appeal on the matter.  The university suspended Neal until Jane Doe’s graduation or disenrollment.

Title IX Claim

Under Title IX, “no person in the United States shall, on the basis of sex, be excluded from participation in, denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”  20 U.S.C. § 1681(a).  When a disciplinary or investigatory process conducted by a school discriminates against accused individuals on the basis of sex, that discrimination is a violation of Title IX and provides a right of action. When a school’s response to a complaint “is clearly unreasonable in light of known circumstances” or the proceedings were “intentionally biased”, a Title IX claim may be triggered.

According to Neal, the proceedings which found him guilty were unreasonable, intentionally biased, and the discrimination he faced had a causal connection to his sex and status as a male student athlete.  The investigation denied Neal many customary elements of due process, including the right to call witnesses, the ability to introduce evidence, the right to examine witnesses, and advance notice of hearings.  Neal claimed he was “railroaded” by a university eager to make examples out of male athletes.  During the investigation, both he and Doe offered consistent testimony that all sexual encounters were not only consensual, but also ongoing.  The investigator failed to hear any witnesses favorable to Neal, including the football coach.  Further, the investigator “disregarded overwhelming physical evidence tending to exculpate [Neal], including a voice recording of Jane Doe stating nothing improper occurred, hand written letters, snapchats, numerous text messages, and a subsequent sexual encounter less than 24 hours after the alleged incident.”

Neal further alleged that his treatment was among a pattern of investigations skewed against males, especially male athletes, which resulted in significant discipline.  Neal contended that this pattern was a result of the school’s reaction (or perhaps more accurately “overreaction”) to OCR enforcement of Title IX in the wake of the 2011 Dear Colleague Letter. 

This claim was, in part, based upon communications which indicated the university was biased against male athletes accused of sexual violence.  Specifically, the investigator stated that university “[football] players have a problem” with sexual misconduct.  Prior to the conclusion of the investigation, the investigator held a meeting with the football team to address this “problem” with sexual misconduct and directly referenced Neal in front of his teammates as a cautionary tale against engaging in non-consensual sex.  In the investigator’s report, the investigator noted that Neal was a member of the football team and that there were other investigations pending which dealt with other team members.  This in part fueled Neal’s claim that he was a victim caught up in the fight against accusations of having a “rape culture” in the football program.

Finally, Neal asserted that the bias was pervasive even in the decision rendered against him.  In the decision, Jane Doe was repeatedly referred to as “the complainant” despite the fact that an uninvolved third party brought the complaint.  Further, the decision only gave weight to the evidence against Neal.

The court rendered this decision on a motion to dismiss the lawsuit filed by the university.  The court found that, if the facts that Neal alleged were true, he had a valid Title IX claim because the investigatory process was “clearly unreasonable” or “intentionally biased” and the discriminatory process had a causal relationship with his sex.  Neal’s alleged facts were sufficient to demonstrate that his discipline occurred in whole or in part because of his sex, so his lawsuit against the university will proceed forward.

Conclusion

Title IX requires all covered entities to investigate complaints of sexual violence.  The investigation process should be thorough and handled with care.  It is important that the process be unbiased and impartial.  While the law is not always clear regarding the appropriate amount of “due process” owed to the accused, this court’s decision was highly critical of the lack of “basic due process” given by the university to the student.  An improper response to Title IX complaints, even if well-intentioned, can give rise to subsequent legal issues.  Schools should regularly revisit their Title IX complaint and investigatory procedures to ensure proper handling.  It is also important to train relevant staff members on these issues, and to ensure that investigators are equipped to conduct investigations that comply with the requirements of Title IX and basic due process.  KSB will be providing state-wide training in collaboration with Nebraska’s ESUs during the second semester of the 2017-18 school year.  If you have any questions about Title IX compliance, you should contact your district’s lawyer or call Karen, Steve, Bobby, or Tim. 

Open Meetings Act Reminders

        The Nebraska Attorney General’s Office (“AG”) recently issued a disposition letter in response to a complaint filed by a patron alleging that a school district had violated the Open Meetings Act (“Act”).  While the AG found that the school district complied with the Act, the disposition letter provides some good reminders to districts to make sure they continue to comply with the Act. 

        The complaint involved the Fillmore Central Board of Education.  A patron claimed that the board had violated the Act in the following ways:

·       Agendas lacked sufficient description to alert the public as to what would be discussed at the meeting;

·       Meeting minutes were not published in the local paper;

·       Meeting minutes were not posted on the board's website within 10 days of their meeting;

·       The Board did not provide notice or an agenda when a board quorum toured facilities at two other school districts; and

·       Meeting minutes lacked sufficient detail as to one agenda item.

Most of the patron’s complaints in this case were related to his inability to obtain current documents from the school’s website.  The school district used eMeetings from the Nebraska Association of School Boards to place meeting notices, agendas, and minutes on its website for the convenience of the public.  However, according to district policy, the website is not the official method of notifying the public of its meetings or for maintaining current agendas and minutes.  Instead, public notice of meetings is given by publication in the local paper or posting in three places within the district, and current agendas and official meeting minutes are maintained in the superintendent’s office.  Meeting minutes are not placed online until they are approved by the board at its next meeting.  While the school maintained a current agenda for all meetings in the superintendent’s office at all times, current versions were not always uploaded online immediately after the agenda was updated in the office.

Agenda Specificity.  The patron complained that when he visited the school’s website prior to two meetings, the agenda stated “Discussion Items, Information Item.”  It appears the document he viewed on the website was an empty default eMeetings template.  The official agenda in the superintendent’s office had been amended at least 24 hours before the meeting to include specific and detailed agenda items, but the eMeetings agenda was not updated simultaneously.  The Attorney General’s Office found that official agenda items to be sufficiently descriptive as required by law, but warned that not updating the online agenda might be confusing for the public. 

Publishing and Posting Meeting Minutes.  The patron complained that the meeting minutes from one meeting were not published in the local newspaper at all and the minutes from another were not posted on the district’s website within ten days of the meeting.  The Attorney General noted that the Act does not require that meeting minutes be posted on a website or published in a newspaper, so there was no violation.  However, keep in mind that section 79-580 requires the board secretary to publish a “concise summary” of all “proceedings” within ten days of any regular or special meeting in a legal newspaper of general circulation in the district.

Meeting Minute Specificity.  The patron complained that the meeting minutes lacked sufficient detail as to what was presented by the finance committee to the board regarding the salary for a future school principal.  The Attorney General’s Office noted, “The Open Meetings Act requires that a public body document the ‘substance of all matters discussed,’ and does not require a transcription of the meeting.”  In this case, the minutes reflected that the board approved the 2017-18 principal salary offer as recommended by the finance committee.  The specific salary information was contained in the finance committee’s report that was available for public inspection at the meeting.  The AG stated that a copy of documents discussed at the meeting must be available for inspection at the meeting, but the minutes are not required to reflect the substance of those documents.  The board did not violate the Act. 

Providing Meeting Notice and Agendas.  Fillmore Central is considering a construction project, so the board wanted to tour recently-completed facilities at two other school districts.  The patron’s final complaint was that the two meetings of the board at the other facilities were not properly noticed and agendas were not available for these meetings.  Again, the patron only checked the school’s website.  However, the school district posted notice of both meetings in three public places within the district as allowed by school district policy.  The agendas for the meetings were included in the notices and also maintained at the superintendent’s office.  The AG found no violation of the Act.

Conclusion

      It is always gratifying to us to celebrate when our clients are successful in defending Open Meetings complaints.  The way to do that however, is to carefully comply with the Act and to be aware of the AG’s recommended practices.  In particular, we would encourage districts that use NASB’s online meeting software (now redesigned and renamed “Sparq Meetings”) to be particularly diligent to ensure that their use of the software is consistent with both the Open Meetings Act and your board’s policies under the Act.  The new software allows boards of education to provide their attorneys with a Sparq login.  That means it will be easy for district to obtain a quick legal check of any agenda items or other meeting documents about which they are uncertain. 

If you have any questions about the Act, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

Where The Rubber Meets The Playground: New Supreme Court Case on State Funds to Private Religious Schools

A decision issued by the US Supreme Court today makes it easier for religious schools to participate in state-financed programs, even when the public funds might directly benefit the mission of the church that operates the school.  The Court held that the state of Missouri could not deny public funds to a church simply because it is a religious organization.

The Supreme Court’s Decision

In Trinity Lutheran Church of Columbia, Mo. v. Comer (No. 15-577) the state of Missouri operated a competitive grant program which provides money to install playground surfaces made with recycled tires.  The church applied for a grant to resurface its preschool playground.  The state of Missouri denied the application because it was made by a church.  Missouri has a state constitutional provision that bars direct or indirect government financial aid to churches.

Trinity Lutheran sued the state claiming that the denial of the grant constituted religious discrimination under the First Amendment. The lower courts ruled in favor of the state, agreeing that it would be an impermissible establishment of religion if the state made a direct payment to a religious institution.

The US Supreme Court reversed and ruled in favor of the church. “There is no question that Trinity Lutheran was denied a grant simply because of what it is,” wrote Chief Justice John Roberts in his decision for the majority. “A church.”  The Court held that it is unconstitutional to put churches “to the choice between being a church and receiving a government benefit.” As the majority described it: “The rule is simple: No churches need apply.”  The Court held that this rule constituted an unconstitutional burden on the free exercise of religion in violation of the First Amendment.

Application to Nebraska

Nebraska has its own version of the constitutional provision Missouri used to deny money to Trinity Lutheran.  In 1875, Congressman James G. Blaine proposed an amendment to the U.S. Constitution.  The "Blaine Amendment" sought to amend the Constitution to prohibit state governments from, among other things, funding religious schools with public money. Although the amendment eventually failed, many states, including Nebraska, added provisions to their state constitutions that accomplish what Congressman Blaine could not. 

Nebraska’s Blaine amendment provides:

 1. Notwithstanding any other provision in the Constitution, appropriation of public funds shall not be made to any school or institution of learning not owned or exclusively controlled by the state or a political subdivision thereof; Provided, that the Legislature may provide that the state or any political subdivision thereof may contract with institutions not wholly owned or controlled by the state or any political subdivision to provide for educational or other services for the benefit of children under the age of twenty-one years who are handicapped, as that term is from time to time defined by the Legislature, if such services are nonsectarian in nature.

2. All public schools shall be free of sectarian instruction.

3. The state shall not accept money or property to be used for sectarian purposes; Provided, that the Legislature may provide that the state may receive money from the federal government and distribute it in accordance with the terms of any such federal grants, but no public funds of the state, any political subdivision, or any public corporation may be added thereto.

4. A religious test or qualification shall not be required of any teacher or student for admission or continuance in any school or institution supported in whole or in part by public funds or taxation.

Nebraska Const. Art. VII, § 11.1

In two cases, the Nebraska Supreme Court has interpreted our state’s Blaine Amendment to allow much more state involvement with private schools than Missouri had allowed.  In Father Flanagan’s Boys Home v. Department of Social Services, 583 N.W.2d 774 (Neb. 1998), the state of Nebraska argued that the Amendment prevented it from paying Boys Town for special education services.  The court held that payments under a contract for educational services were not the type of appropriations prohibited by Nebraska’s Blaine Amendment.  Similarly, in Bouc v. School District, 320 N.W.2d 472 (Neb. 1982), the court held that private school students could ride the public school bus.  The court reasoned that the benefit accruing to a private school was incidental and therefore not a violation of Nebraska’s Blaine Amendment.

Relevance of Trinity for School Choice

Many national commentators are predicting that this case will have significant implications in the political battle over school choice.   The Supreme Court ruled in 2002 that the federal Constitution's Establishment Clause did not prohibit the inclusion of religious schools in a government voucher program when parents are making the decision where to direct the state aid.  However, some states have used their Blaine Amendments arguing against the inclusion of religious schools in voucher programs and some other forms of state aid.  This Trinity Lutheran case decided today is the first time the Supreme Court has ruled that governments must provide money directly to a house of worship. 

The Supreme Court is considering two other school cases which involve state Blaine Amendments.  One involves a decision by the New Mexico Supreme Court prohibiting religious schools from participating in a textbook-lending program.  The other is a case from Colorado in which a public school district attempted to create a tuition-scholarship program for students to attend private schools, including religious schools. The Colorado Supreme Court has blocked the program based on a Blaine-like "no aid" provision in the state constitution.

We will continue to monitor these issues as they develop, both in the courts and through possible state or federal legislation.  In the meantime, if you have any questions about your interactions with private schools or what these cases may mean for your school, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

Summer School: What Administrators Need to Get Done in July

You know what they say: while the kids are away, the administrators...should probably be doing paperwork. 

There are a few must-change policy deadlines coming up this summer, and we wanted to run through a brief reminder for each of them.

Wellness.  Deadline: June 30/July 1st, 2017.

The Nebraska Department of Education has released its state-specific rules in compliance with the Healthy, Hunger-Free Kids Act of 2010.  All boards must fully comply with the requirements of the final rule by June 30, 2017.  Your wellness plan should be revised to include adherence to the new Smart Snacks guidelines.  These guidelines apply to all food sold during the school day, including food items sold as fundraisers and food items sold in vending machines.  There are also new regulations regarding marketing and advertising for food and beverages on school grounds. 

Additionally, the USDA has released a new requirement that all boards must have a Charged Meal Policy in place by July 1st, 2017.  This is focused on making sure families are aware what will happen in the event their meal account is negative.  Schools are permitted to allow students to charge meals to a negative account, provide a courtesy meal, or provide no food service.  They key component is notice to the families of what the school intends to do in this situation.

You can take a look at our previous post on wellness here.

Procurement.  Deadline: before the beginning of the 2017-18 school year

The Education Department General Administrative Regulations (EDGAR) apply to all federal grants that are made by the U.S. Department of Education to local school districts directly and to all funds that pass-through the Nebraska Department of Education to schools.  This means that EDGAR governs most school district’s special education, school breakfast and lunch, and Title I programs.  On December 26, 2014, the federal Office of Management and Budget issued significant changes to EDGAR.  The new EDGAR consists of multiple parts and regulations and have changed how schools have to account for funds that they receive from federal programs.  The initial EDGAR regulations had a two-year grace period which, when coupled with the timing of the issuance of the new regulations, means that the 2017-18 school year will be the first year that schools must fully comply with all the updated parts of EDGAR.  If any of you would like to review a complete description of the federal regulations that apply to federal education grant awards, you can visit the US Department of Education’s EDGAR website.  

Homeless Assistance.  Deadline: Before the beginning of the 2017-18 school year.

Part of ESSA reauthorizes the McKinney-Vento Homeless Assistance Act and requires certain changes to school districts’ Homeless Students policies for the 2017-2018 school year.  These changes focus on (1) removal of references to “children awaiting foster care” in the definition of “homeless” and (2) enhancing the stability provisions for covered youth.  These changes are consistent with other aspects of ESSA with which you might be familiar, such as the new requirements for transportation of foster care students which became effective on December 10, 2016.

NDE has a model policy on homeless assistance and several other resources related to homeless assistance here.

Each of these policy areas have been covered in our policy updates, so if you are an Update Only or a Complete Policy Service subscriber you should have received updated policies.  We know that other policy services have also sent out revised policies to meet these new criteria.  If you have any questions we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

(Another) Transgender Update

The law surrounding transgender student’s rights in regards to restroom access still lacks definitive answers.  The Trump Administration withdrew the previous Obama Administration guidance, and for the most part the issues have remained out of the news...until recently.  On May 30, the Seventh Circuit decided one of the many cases making their way through the court system.  Nebraska is in the Eighth Circuit so the case has no direct control over Nebraska schools.  However, the decision is worth discussing because now the case is only one step away from the Supreme Court.

The Case.  The case is Whitaker v. Kenosha Unified Sch. Dist., No. 2:16-cv-00943-PP, 2017 U.S. App. LEXIS 9362 (7th Cir. May 30, 2017).  Ashton Whitaker is a 17-year old student who is biologically female but identifies as male. The school district maintained that Ashton could utilize either the girl’s restroom or a gender-neutral restroom across campus to which Ashton alone had access.  Ashton sued the school alleging that the district’s unwritten bathroom policy violates Title IX’s prohibition against sex discrimination and the Equal Protection Clause of the Fourteenth Amendment. 

Ashton requested a “preliminary injunction” order from the court.  A preliminary injunction is an initial step in a lawsuit which asks the court to direct the defendant (here, the school) to stop a certain action based on the likelihood that the plaintiff (here, the student) would win a lawsuit.  In this case, the injunction would grant Ashton access to the boy’s restroom for the 2017-18 school year.  The district court granted Ashton this order, demanding that the school district provide Ashton access to the boy’s restrooms.  The school district then appealed that decision.  The Seventh Circuit Court of Appeals affirmed the decision on appeal.

In analyzing Ashton’s request for an injunction, the court was highly critical of the unwritten policy the school maintained on transgender restroom use.  The school told Ashton and his mother that under school policy students were restricted to using the restroom that corresponds with the sex listed on the student’s birth certificate.  Ashton asserted this policy violated Title IX and the Equal Protection Clause.

The court looked to case law on Title VII (preventing employment discrimination) to interpret Title IX as prohibiting sex-based discrimination under a sex stereotyping theory.  This means that according to the Seventh Circuit, Title VII and IX protect transgender individuals from discrimination related to their non-conformity to the gender stereotypes of their birth sex.  By extension the court reasoned, “[a] policy that requires an individual to use a bathroom that does not conform with his or her gender identity punishes that individual for his or her gender non-conformance, which in turn violates Title IX.”  Id. at *30-31.  The court further asserted, “[p]roviding a gender-neutral alternative is not sufficient to relieve the School District from liability, as it is the policy itself which violates the Act.”  Id.

The court also concluded the policy the school district maintained was likely a violation of the Equal Protection Clause of the Fourteenth Amendment.  This was based on the fact that transgender students were not treated in a manner similar to their peers; instead they were excluded from using the restroom of their choice, and effectively punished for using the “incorrect” restroom.  The sex-based nature of the distinction drawn by the school district could not withstand scrutiny, as the school district failed to demonstrate that the policy served a rational purpose.

Further, the district’s insistence on utilizing the sex referred to by the student’s birth certificate was determined to affect students disparately, as states differ in requirements for a birth certificate sex change.  For instance, some students with birth certificates from states other than Wisconsin would be able to change the sex on their birth certificate with a doctor’s note;  while students with a Wisconsin birth certificate could only change their birth certificate sex after gender reassignment surgery, a procedure prohibited for minors in Wisconsin.  As such, the court held the policy did not afford equal protection to all students, as the Equal Protection Clause “is essentially a direction that all persons similarly situated should be treated alike.”

Notably, throughout the decision the court referenced the unwavering nature of Ashton’s transgender status.  “This is not a case where a student has merely announced that he is a different gender.  Rather, Ash has a medically diagnosed and documented condition.  Since his diagnosis, he has consistently lived in accordance with his gender identity.”  Id.  This factor weighed heavily in Ashton’s favor. 

Conclusion.  Advocates for transgender students will undoubtedly point to this decision in an attempt to persuade schools regarding their required accommodations for transgender students.  We have long advised schools that it is best to accommodate student needs and requests on a case-by-case basis.  After all, an individualized needs assessment is a core requirement of Title IX.  As this case demonstrates, even an unwritten, verbal policy can be the basis of litigation.

This case represents the first time a major federal Court of Appeals has used the “gender norms” or “gender stereotype” cases (like Price Waterhouse) to determine that transgender students are discriminated against “on the basis of sex” when they are denied access to the facilities of their choice.  This was one of the main positions underlying the Obama Administration guidance. Because this case bolsters the prior administration’s position, we will have to wait and see whether this case will have an impact on civil rights enforcement actions such as those brought through the OCR.  Interestingly, the Trump Administration recently announced major funding cuts for enforcement agencies like the Office for Civil Rights (OCR). 

We will continue to keep you updated on this case and others as we approach the 2017-18 school year.  In the meantime, if you have any questions we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

It's a Total Eclipse So Be Smart

On August 21, 2017, many parts of Nebraska will be in the path of a total solar eclipse.  NASA refers to a total solar eclipse as “the most spectacular astronomical event that most people will experience in their lives.”  The event presents a unique and exciting opportunity for students to see a natural phenomenon that brings together many of the mathematical, scientific, and historical concepts and principles taught throughout the year.  The eclipse can also have observable effects on plants and animals. 

Many schools are already making plans to view the event and to incorporate it into curriculum and activities for the day.  It is important to remember that while the eclipse presents a unique learning opportunity, it also presents unique risks.

Risks Associated with Viewing

Incorporating the eclipse into student learning should not be discouraged.  However, any incorporation must be done conscientiously to ensure safety and minimize danger.  Schools are in a very difficult situation as they will be assuming the responsibility of overseeing students while they are watching a phenomenon that could potentially damage their eyes if proper precautions are not taken. Student safety is always a top priority, and it is only safe to view the eclipse with the naked eye when the moon completely covers the disk of the sun.  At any other time it is not safe to view the eclipse without the proper precautionary measures.  Failure adhere to proper precautionary measures can result in permanent ocular damage and vision loss.

Observing these risks, we have received many questions about the precautions a school can or should take to avoid potential liability issues and protect student safety.  For example, many schools have already purchased special eclipse-safety glasses to view the event.  Others are planning class projects and other ways to view the event safely.  If you have not already done so, we encourage you to consider communicating with your staff and fellow administrators to determine what plans your school has and the items you deem reasonably necessary to ensure the eclipse can be viewed safely.

Mitigating Potential Liability

Some schools have also begun the process of notifying parents or even circulating parent permission forms for viewing the eclipse at school. We've received many questions on the "right way" to account for liability concerns.  While seeking an “opt in” permission form back from parents is a permissible step, we are not sure how practical or legally useful it is in terms of protecting your district.  We believe that serving each parent with a notice regarding the eclipse and allowing them to “opt out” is a more appropriate measure to mitigate potential liability stemming from the risks associated with the eclipse.  This is also more consistent with the way districts address other curricular experiences.

Schools should confer with their individual attorneys now to solicit their legal advice on how to best take advantage of this tremendous learning opportunity without also assuming potential liability.  If you are a KSB client and would like to receive our full legal analysis and an “opt-out” notification and release you can use, please contact one of us and we will be happy to provide it to you for a low flat rate.  Our analysis is intended to guide you and your board through the legal standards you should consider and practical issues surrounding the eclipse viewing plans you have already made and may be making as next school year approaches. 

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

Student Memorials: Sound Policy May Land You In the News

During graduation season there are always a few news stories that focus on a school grappling with the issue of student memorials and how to handle them.  As you have likely heard in the news, many Nebraska schools have a policy of not allowing student memorials.  If you subscribe to our policies, you likely know that this is the stance KSB takes, as well.  We understand that circumstances in which requests for student memorials arise are incredibly difficult.  That is exactly why we’d like to walk through these issues so your board and administration can discuss your current policy and feel prepared to handle questions from students, parents, patrons, and the media should tragedy strike in your school district.  

While we understand that most lawyer jokes are true and that school lawyers’ positions on this issue may seem “heartless,” good policy is made by clear and logical decisions, not emotional responses.  There are a few main reasons why a public school district allowing memorials is troublesome.  The most significant reason to disallow memorials is that multiple studies show that it is detrimental to students’ wellbeing.  Research shows that memorials can delay grieving and that things like memorials and media coverage of suicides can contribute to copy-cat deaths.  For example, The Society for Prevention of Teen Suicide notes,

“[T]he logic of dying by suicide so that the school will put up a plaque or hold an assembly to acknowledge the death is almost impossible for most of us to comprehend, [but] it is the way suicidal students can think.”

The school district does not want to foster an environment where suicide becomes a response to any of life’s difficulties for school-aged students.  However, it is impossible to disallow memorials for some deaths yet allow them for others.  For example, a student death due to a car accident or terminal illness could receive an outpouring of support, while a student suicide generates a muted response due to the school’s desire to minimize the impact of suicide among the student body.  In our experience, many boards have come to the logical conclusion that if you do not want to allow memorials for all deaths given the psychological research, the only option is to prohibit all of them.

From the purely legal side, another difficult issue is the fact that memorials almost always create a “forum” where First Amendment issues and questions of “equal treatment” arise.  For example, if a student memorial includes a Bible verse at the request of parents, another set of parents could ask for some type of quote, verse, or message which a majority of your community would disagree with.  Prohibiting a memorial or even the proposed text on a memorial based on the speaker’s viewpoint or content of the message would directly violate the First Amendment.  As with most questions of access and speech in public schools, if you allow one idea, you most likely have to allow them all.

Similarly, allowing memorials puts the school in the position of determining whether the scope of a memorial is appropriate or “fair.”  For example, requests for memorials have ranged from a moment of silence, to a small plaque on a bench, to a full statue.  In some cases, the financial status of the family has impacted the request to the point where the school district has been asked to pay for it.  Unless the school district is very specific about prohibitions or at least limitations on memorials, it will almost certainly invite requests which become more elaborate and unique with each family.  Weighing these requests can be politically, legally, and practically difficult.

With an eye toward student mental health and avoiding other difficult issues, we encourage our clients not to allow student memorials.  If your board elects to allow them, it should be only after board approval.  You should think very carefully about the intended and unintended consequences which are likely to result and craft very clear and limiting policies accordingly.  The school district can and should support students who wish to attend student memorials by allowing any student to attend a memorial service and receive an excused absence.  Grief counseling and other support should also be made available as appropriate.  Before you commit other resources of the school district toward any response to a tragedy, such as sending flowers to a funeral, or toward a memorial; you should first be sure it is authorized by state law (...and in many cases, it’s probably not).

If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

Prior Written Notice: Don't get PWN'd

If you don’t know what “PWN’d” means, ask a student in your school who is into video games. If you don’t know what “PWN” means, ask your special education director. Every week, we field questions about IEP teams that are considering important changes to the services which a school or ESU will provide to a student with a disability. Prior to making those decisions, schools and ESUs must inform parents of the proposed changes or of their decision not to implement a change when one has been considered. This is referred to in the IDEA and state law as “Prior Written Notice” or “PWN.”

We have had an increase in complaints from parents and advocates alleging that schools have not properly provided PWN. We have also fielded questions from clients that indicate that there is a great deal of confusion about PWN on the school side.

Under IDEA regulation § 34 CFR 300.503 and Nebraska Department of Education Rule 51 § 009.05, local education agencies must provide PWN to the parents of a child with a disability within “a reasonable time” before the education agency:

1. Proposes to initiate or change the identification, evaluation, or educational placement of a child or the provision of FAPE to the child; or
2. Refuses to initiate or change the identification, evaluation, or educational placement of a child or the provision of FAPE to the child.

Consider an example we see regularly—a young special education student with violent outbursts. As his or her school continues to address the child’s needs, the IEP teams might consider moving the child from the regular classroom into a behavior room to receive instruction. Under the IDEA, that would be considered a “change of educational placement” for that child. Therefore, prior to proposing that change to the family at an IEP meeting, the school must provide PWN to the child’s parents.

Under federal law and Rule 51, the PWN must include at least the following items:

1. A description of the action proposed or refused by the school district or approved cooperative;
2. An explanation of why the school district or approved cooperative proposes or refuses to take the action;
3. A description of other options the IEP team considered and the reasons why those options were rejected;
4. A description of each evaluation procedure, assessment, record, or report the school district or approved cooperative uses as a basis for the proposal or refusal;
5. A description of any other factors which are relevant to the school district's or approved cooperative’s proposal or refusal;
6. A statement that the parents of a child with a disability have protection under the procedural safeguards of [Rule 51] and, if this notice is not an initial referral for evaluation, the means by which a copy or description of the procedural safeguards can be obtained; and
7. Sources for parents to contact to obtain assistance in understanding the provisions of [NDE Rule 51].

We strongly encourage you to include a copy of the procedural safeguards any time you send out a PWN. Rule 51 also requires that “[t]he notice must be written in language understandable to the general public, and provided in the native language of the parents or other mode of communication used by the parents unless it is clearly not feasible to do so.”

The PWN form on SRS walks team members through each of these steps. NDE’s sample PWN form takes things in a different order, but also includes each of the necessary components. However, no form can help if team members don’t know when or how to use it.

All administrators (both general and special education) should think about providing some training and guidance to staff members regarding PWN. Your staff will be conducting final IEP meetings of 16-17 and preparing for annual and other meetings to begin the 17-18 year. In addition to ensuring you comply with the technical requirements of PWN, you should provide training on when the forms are required and good PWN (and general IEP) writing. We apply the philosophy of “if in doubt, send it out.” As for good PWN writing, you should focus on the areas where you are the experts, such as pedagogy, research-based programming, and data interpretation rather than inconveniences, cost, and negative comments about the child. Keep in mind arguments like “But it’s so expensive!” do not work to comply with the IDEA, so they should be left out of PWN to parents.

For your reference, here is a link to NDE’s “Special Education Monitoring Forms,” which contain PWN forms for the various needs of your IEP teams along with forms for other required notices. Again, these differ from the SRS form slightly and illustrate the point that what’s more important than the form is compliance with the requirements of the law.

Hopefully this refresher is helpful to you and your staff as you finish out the year and plan your in-service training for next year. If you have questions, we recommend that you consult with your school district’s attorney or call Karen, Steve, Bobby, or Tim.

The Supreme Court Rules in Endrew F.: What is your new legal obligation under special education laws?

The minimum educational benefit which must be provided to special education students in Nebraska is higher today than it was yesterday.

Today, the Supreme Court ruled in the case of Endrew F. et al. v. Douglas County Sch. Dist RE-1, 580 U.S. ___ (2017). We have been talking about this case for several months now because of its potential impact on the special education world, especially in Nebraska. The primary question in the case was the minimum educational benefit schools must provide to students to ensure they are receiving a “free, appropriate public education” (FAPE) under the Individual with Disabilities Education Act (IDEA). In other words, what is the least amount of educational benefit a school could provide and still comply with the law?

The federal circuit courts were split on that question, which is exactly why the Supreme Court took this case. Some courts, like the 9th Circuit, have held that a more meaningful benefit is required. That was the position of the parents in Endrew F. Other courts, like the 8th Circuit which covers Nebraska and the 10th Circuit where this case came from, have held “some educational benefit [that is] . . . merely more than a de minimis” is required, which is a lower standard. That was the position of the school in Endrew F.

The Supreme Court took the case to resolve that dispute. The split among circuit courts was based on the Supreme Court’s prior decision in the Rowley case, which discussed the educational benefit required under the IDEA. As the Court noted, Rowley “did not provide concrete guidance” on the issue. However, because the IDEA has not changed since Rowley, the Court had to balance its prior ruling with this new ruling in Endrew F. Importantly for schools in Nebraska, the Court declined to adopt the standard proposed by Endrew’s parents, which was that the IDEA should be interpreted to require “an education that aims to provide a child with a disability opportunities to achieve academic success, attain self-sufficiency, and contribute to society that are substantially equal to the opportunities afforded children without disabilities.” Instead, the Court struck a balance between such a heightened standard and the lower standard of “some benefit more than de minimis” which was in place in Nebraska until today.

In a unanimous decision, the Supreme Court did side with the parents and ruled that the minimum educational benefit due to students with disabilities under the IDEA is higher than the “more than a de minimis benefit” standard. In the summary section of the opinion, this is how the Court detailed its conclusion:

Rowley did not provide concrete guidance with respect to a child who is not fully integrated in the regular classroom and not able to achieve on grade level. A child’s IEP need not aim for grade-level advancement if that is not a reasonable prospect. But that child’s educational program must be appropriately ambitious in light of his circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives

This standard is more demanding than the “merely more than de minimis” test applied by the Tenth Circuit [and the 8th Circuit covering Nebraska]. It cannot be right that the IDEA generally contemplates grade-level advancement for children with disabilities who are fully integrated in the regular classroom, but is satisfied with barely more than de minimis progress for children who are not.

Endrew F. et al. v. Douglas County Sch. Dist RE-1, 580 U.S. at pp. 9-15 (2017).

So, what does this mean for Nebraska schools? Good question. Let’s assume a child with a disability in a Nebraska school had an Individualized Education Plan (IEP) which was challenged in court yesterday. The school district would have won so long as it could prove that it was providing “some educational benefit more than de minimis.” If that same school were challenged on the same IEP in court tomorrow, “To meet its substantive obligation under the IDEA, a school must offer an IEP reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The new standard is certainly a “higher” one, but until courts interpret the Endrew F. decision, we will not know exactly how much higher. The Court did say that for children fully integrated into and receiving instruction in the regular classroom, the standard would generally require an IEP that is “reasonably calculated to enable the child to achieve passing marks and advance from grade to grade.” However, the court warned that a child who advances from grade to grade will not automatically be deemed to be receiving FAPE. For students not fully integrated into the regular classroom, their IEPs need not aim for grade-level advancement. However, their educational program must be “appropriately ambitious in light of [the student’s] circumstances, just as advancement from grade to grade is appropriately ambitious for most children in the regular classroom. The goals may differ, but every child should have the chance to meet challenging objectives.”

It is certainly possible some IEPs in Nebraska schools were lawful yesterday, but may not be lawful today. That prospect is somewhat scary, but we have confidence that all Nebraska schools have generally aimed for “more than a de minimis benefit” anyway. The Court’s summary discussion of the adequacy of IEPs after Endrew F. should provide some comfort:

The adequacy of a given IEP turns on the unique circumstances of the child for whom it was created. This absence of a bright-line rule should not be mistaken for “an invitation to the courts to substitute their own notions of sound educational policy for those of the school authorities which they review.” Rowley, 458 U. S., at 206. At the same time, deference is based on the application of expertise and the exercise of judgment by school authorities. The nature of the IEP process ensures that parents and school representatives will fully air their respective opinions on the degree of progress a child’s IEP should pursue; thus, by the time any dispute reaches court, school authorities will have had the chance to bring their expertise and judgment to bear on areas of disagreement. At that point, a reviewing court may fairly expect those authorities to be able to offer a cogent and responsive explanation for their decisions that shows the IEP is reasonably calculated to enable the child to make progress appropriate in light of his circumstances.

Id. at 15-16.

We think we understand the ruling, so what should we do now? At this point, our best advice is to keep doing the good work you are doing with students in your schools. We do not believe the ruling automatically requires you to reconvene every IEP team to review every IEP. However, for those cases in which the team has had difficulties agreeing on the benefits to be provided, be mindful of the fact this case will empower families and advocacy groups to pursue additional and heightened benefits and services in some cases. In light of Endrew F., that may be appropriate.

We encourage you to review the preceding paragraph from the Court: you are the educational experts. Rather than being worried, we view the ruling as an opportunity to provide additional training to all staff members on the school’s or ESU’s obligations under the IDEA and other disability laws. As schools continue to fight off obstacles like LB 595, which hamstring their efforts at compliance with special education and related disability laws, it is more important than ever to provide training to staff and to set clear expectations.

A great starting point for your additional training on this issue is to read the Endrew F. decision in its entirety. It is a very good review of the educational benefit requirements of FAPE and should be required reading for all educators. Here is a version of the opinion that has the legal mumbo-jumbo from the beginning of most opinions eliminated. This opinion is clearly written so that non-lawyers won’t be frustrated in trying to read it, and we think the summary of the law contained in the opinion will be really useful to practicing educators.

If you have questions about the impact of the Endrew F. ruling or your special education obligations in general, contact your school’s attorney or Karen, Steve, Bobby, or Tim.

Who Is Robert and Why is He at Our School Board Meeting?

Parliamentary Procedure and Nebraska Boards of Education

Springtime in Nebraska often finds boards of education making difficult decisions. This is the time of year when boards must decide if they are going to reduce force, how they are going to structure the district’s curriculum and activities for next year, and make myriad personnel decisions. One way we’ve seen boards become less effective when making these tough choices is when they become too focused on parliamentary procedure. People who know the rules—or think they know the rules—often use their alleged know-how as a way to exercise power over the board.  "That's out of order" bellows the board bully or the angry patron. "You need to raise a point of order if you're going to reopen discussion on that motion, and you can't do that because we've already accepted an amendment to the original motion." In response, everyone else feels sheepish, looks confused, and refuses to speak. All sorts of petty arguments arise from the ignorance or abuse of parliamentary procedure. This makes boards of education less effective.

The good news is, it doesn’t have to be this way. Let us be clear: there is no legal requirement that boards of education in Nebraska follow Robert’s Rules or any other formal system of parliamentary procedure.

Who Is Robert?

In 1876 Brigadier General Henry Martyn Robert wrote the book ROBERT’S RULES OF ORDER after he had failed miserably in leading a meeting at his church.  Robert set out to provide a few rules by which to conduct an efficient meeting, but the project soon took on a life of its own, as questions arose and were answered. The book is over 600 pages long with ROBERT’S RULES OF ORDER NEWLY REVISED IN BRIEF running 200 pages.

And that is the problem. The Rules are complex, and they must be thoroughly understood to be effective. And unless everyone—board members, administrators and patrons—understands the Rules, a self-appointed parliamentarian exerts disproportionate and all too often unhealthy control over the proceedings. Not to mention, public perception of being sneaky or using procedural rules to create confusion is often the impetus of Open Meetings Act complaints to the Attorney General.

What is Required by Nebraska Law?

Happily, Nebraska does not require boards of education to follow Robert’s Rules of Order or any formal system of parliamentary procedure. Instead the Open Meetings Act has a few straightforward but non-negotiable requirements.

1) Every Item the Board Considers Must be on the Agenda

The agenda rule in Nebraska is pretty simple: at least 24 hours before the meeting, any item which will be discussed by the board must be placed on the agenda with enough specificity that an interested member of the public will know that the board will discuss it. That is it. Boards that do nothing other than fully comply with Nebraska law will have very straightforward, uncomplicated agendas, albeit with longer descriptions of each item than most boards currently use.

Robert’s Rules have all kinds of funky rules for the construction of an agenda. For one popular example, they divide meetings up by things like “consent agendas,” “action items,” “discussion items,” and other types of agenda items are doing so voluntarily. There is no such requirement in Nebraska law, and boards should be careful that the use of those divided agendas (especially “consent agendas”) does not lead to insufficient descriptions required of all agenda items according to the Open Meetings Act.

We discourage boards from engaging in any of this complexity as we believe it can be misleading to the board and to the public. For example, if your board has a motion to approve the agenda and it fails, what happens next?

You cannot add items to the agenda (although the board can table or remove items). If the board has labeled an item as “discussion” does that mean the board can’t take action on the item? Under the Open Meetings Act requirements, the label of the item doesn’t matter; all that matters is the sufficiency of the agenda item and then you can take action. However, all of the formulaic requirements of Robert’s Rules create uncertainty and distraction for the board. It also is very frustrating for patrons.

2) Formal Decisions Must be Made by a Roll Call Vote in Open Session

The second rule for Nebraska public meetings is as simple as the first.

Formal decisions must be made in open session by roll call vote. There is an exception for electing board officers (which can occur by secret ballot) and there are some unique procedures for collective bargaining and other types of legal negotiations. But by and large, boards will not go wrong if they simply make every formal decision in open session with a roll call vote.

Again, Robert’s Rules have all kinds of limitations and traps about motions and voting. The person who makes the motion must vote for it. The board president cannot second a motion. The motion can only be amended with the consent of the person who made it. And on and on it goes. None of that is legally required in Nebraska and again, we find that these sorts of rules make life harder, not easier for boards of education.

What is Best Practice?

We believe that boards work most effectively when they follow a consensus- based decision making model, rather than a rigid parliamentary one.

Board presidents must maintain firm control of a meeting and be willing to tell the long-winded individuals (be they board members or patrons) to stop speaking so the more reticent can get a word in edgewise. But they should not dominate the meeting through procedural rules. Motions should be stated as simply and precisely as possible. If possible, we like the agenda to include sample motions that may be modified at the meeting. This is especially true for closed session. Having a draft motion helps board members to be more focused on what they are being asked to decide and enables them to make changes quickly without having to “start from scratch” on the revised motion.

As the board considers the agenda item, the relevant ideas should be passed around and the pros and cons are discussed by board members. In high functioning boards, open discussion among board members is not viewed as a negative but at the same time, board members do not use discussion to attack the administration, staff, or each other. Legally it does not matter if the discussion occurs before or after the motion, second or amendment. Allow us to blow your minds even further: there is no legal requirement to get a “second” to discuss or vote on an agenda item. What does matter is that the exact wording of the final motion that the board votes on is captured in the minutes. If a general agreement seems to be emerging (this is where good listening and facilitation skills are helpful), the board president can test for consensus by restating the latest version of the idea or proposal to see if everybody agrees. If anyone dissents, the board can return to the discussion to see if the motion can be modified to make it acceptable to everyone. If there is no consensus emerging, boards may want to consider deferring the matter to a later meeting. There is no requirement that the board jump through any complicated hoops – a simple motion to table the item is sufficient.

Last Point: Check Your Policies

Every board member and educator should check their local policies on this issue. Some boards have, unwisely in our opinion, adopted policies that state the board will follow Robert’s Rules of Order or some other type of procedural process. Our best advice is that boards rescind that policy or at least remove any restrictions which interfere with the otherwise very simple requirements of the Open Meetings Act. It should only be by choice that board members must educate themselves on formal parliamentary procedure and agree to comply with the byzantine rules.

Conclusion

We believe that Robert’s Rules is out of sync with today’s norms about how people relate to each other and get things done. The modern model is consensus and collaboration instead of more formal patterns of decision-making from past centuries. Although the Nebraska Open Meetings Act does require boards the follow certain procedures, the law is vastly easier to comply with when boards do not hitch their compliance to 600 pages of parliamentary procedure rules.

If you have questions about board operations or any other education law issue, contact your school’s attorney or Karen, Steve, Bobby or Tim.