Bueller? . . . Bueller? . . . Bueller? . . . Tackling Truancy While Complying With FERPA

NOTE FROM KSB: We know the NSEA recently sent out a survey to its membership related to Senator Groene’s LB 147, which addresses the use of seclusion and restraint by staff.  Although this blog post is about attendance and student records, the NSEA’s survey asks its members to relay experiences they have had with violent and disruptive students.  This touches on many of the same FERPA concerns, especially in smaller communities where relaying an experience could indirectly identify the student involved and the contents of the student’s records.  We have prepared this statement you can share with staff to remind them that although filling out the survey is their prerogative, they cannot directly or indirectly disclose personally identifiable information about students.

Now, onto the blog post and attendance...

Last week, Karen and Jordan had the pleasure of presenting at NCSA’s State Principals’ Conference, and the slides from that presentation can be found here.  They talked about school district interactions and relationships with local law enforcement, and discussed the role of confidentiality in working with these agencies.  It quickly became clear that lots of schools are involved in innovative collaborations with local law enforcement and other related juvenile justice agencies to address excessive absenteeism.  As schools take advantage of these resources to improve the educational outcomes for their students, we want to make sure they also have the knowledge and resources necessary to maintain compliance with state and federal law. 

Application of FERPA to Attendance Records

Under the federal Family Education Rights and Privacy Act, public schools may not disclose personally-identifiable information from a student record that is maintained by the school district unless the disclosure is pursuant to written parental consent or an exception to that consent.  A student record includes materials that “contain information directly related to a student” and are “maintained by an education agency or institution.” 20 U.S.C. § 1232g(a)(4). A student's attendance record is FERPA-protected information.  That means schools must either have parental consent or find an exception to FERPA before disclosing attendance records.  

Specific Attendance Records Are NOT Routine Directory Information

FERPA does allow the disclosure of “routine directory information” – such as the student’s name, grade, and home address – as long as parents are given the ability to opt out of the directory.  Unfortunately, attendance records may not be disclosed as routine directory information. Both courts and the U.S. Department of Education have held that the directory information exception does not contemplate the disclosure of specific dates of absence or attendance.  See, e.g., Hirt v. Unified Sch. Dist. No. 287, 308 F. Supp. 3d 1157 (D. Kan. 2018); F.A.T. v. State, 690 So. 2d 1347 (Fla. Dist. Ct. App. 1997).  Although schools can disclose the span of time a student was enrolled more generally, such as “from August 2014 until May 2018,” they cannot disclose the specific days in that range when a student was or was not at school.  

Local Law Enforcement, Outside Juvenile Justice Agencies, and SROs Do Not Usually Meet the School Official Exception

FERPA does allow schools to disclose attendance records to outside agencies that qualify as a school official with a legitimate educational interest.  This means, for example, that schools can report student attendance to the Nebraska Department of Education as part of AQuESTT reporting. Unfortunately, it is rare that a local law enforcement agency, an outside juvenile justice agency, or school resource officer will meet the requirements to be recognized as a “school official” under this exception.  See, Letter to Jene Watkins, Indian Creek Local School District (FPCO 2008);  Letter to Ms. Bresler and Mr. Molinaro (FPCO 2006).  

In order for an outside agency to be considered a school official, the  agency must: (1) perform an institutional function for which the district would otherwise use employees; (2) be under the direct control of the district with respect to the use and maintenance of the education records; and (3) be subject to the provisions of FERPA restricting the use and redisclosure of the records.  Finally, any disclosure of records to a school official must be pursuant to a legitimate educational interest.

Based upon these requirements, there are several reasons why local law enforcement and other outside agencies rarely satisfy the school official exception.  At the outset, if probation or diversion officers are accessing student attendance records to see if a student is meeting his/her obligations under those programs, they are accessing the student’s records for their own legal purposes, not an institutional educational function.  The U.S. Department of Education advises that, generally, a school official “has a legitimate educational interest if the official needs to review an education record in order to fulfill his or her professional responsibility [to the school district].” FERPA General Guidance for Students (2015).

Not only must the outside agency have a legitimate educational interest in fulfilling an institutional function, but it must also be under the direct control of the school district. In the Discussion of the 2008 Amendments to the FERPA Regulations, which served as a preamble to the final publication of the regulations, the U.S. Department of Education provided the following explanation:

“The term direct control . . . is intended to ensure that an educational agency or institution does not disclose education records to an outside service provider unless it can control that party's maintenance, use, and redisclosure of education records. This could mean, for example, requiring a contractor to maintain education records in a particular manner and to make them available to parents upon request. . . This includes ensuring that outside parties that provide institutional services or functions as "school officials" . . . do not maintain, use, or redisclose education records except as directed by the agency or institution that disclosed the information. . .  [O]ne way in which schools can ensure that parties understand their responsibilities under FERPA with respect to education records is to clearly describe those responsibilities in a written agreement or contract.”

Consequently, if a school district wishes to disclose records to an outside agency pursuant to the school official exception, we believe they should only do so pursuant to a clearly written contract or memorandum of understanding that offers the school district strict control over the outside agencies’ use, maintenance, and redisclosure of the records.  Further, the outside agency must agree that they will not use or redisclose the records in any unauthorized manner. This means, for example, that if the local law enforcement agency received educational records pursuant to this exception, they could not use that information to prosecute a student or parents for truancy.  Unfortunately, schools may find outside agencies reticent to agree to these terms (and we understand why).

The Records of a Law Enforcement Unit Are Not Subject to FERPA

As discussed in our prior blog post found here, school districts may designate any office or individual (including an SRO or school employee) as its “law enforcement unit” and disclose records which qualify as law enforcement unit records to other entities (like local police departments or juvenile justice agencies) at the school’s discretion.  The records created by a law enforcement unit for a law enforcement purpose are not subject to the confidentiality requirements of FERPA, and may be disclosed without consent or satisfying an exception to consent.

A school district could develop practices and procedures whereby attendance records, or something similar like building entry logs, were created by a law enforcement unit for a law enforcement purpose.  Such records could be disclosed to outside agencies at the district’s discretion. Schools should be aware, though, that designating a law enforcement unit is a complicated process that should not be undertaken lightly.  This process would include amending board policy, providing notice to parents and students, modifying existing and future MOUs or agreements with local law enforcement for SROs, and developing strict record-keeping practices.

So what does this mean for you?

In summary, schools must be mindful that the provisions of FERPA protect the confidentiality of student attendance records.  This means that these records should not be disclosed without written consent from the student’s parent unless an applicable exception is fully satisfied.  The school official exception may apply in limited circumstances if the district maintains control over the maintenance, use, and redisclosure of student records the records are only used for legitimate educational purposes by someone serving an institutional function.  Additionally, records created by a law enforcement unit are not subject to the same confidentiality requirements, but this exemption requires the district to undertake a careful and deliberate process to designate a law enforcement unit.

We do not want this information to make schools feel as though they must discontinue any relationships or collaborations with outside agencies to address attendance and truancy.  However, the terms of these relationships should be memorialized in a formal, written agreement that appropriately addresses all aspects of the parties’ relationship, including the disclosure, use, and re-disclosure of student records.  As the relationship is formalized, we may realize that some changes to operations are necessary to ensure technical compliance with the law, or to place the district in the best position to demonstrate compliance. If you already have an agreement in place, it should be reviewed by your school’s attorney to ensure that it remains effective under the most recent guidance from the U.S. Department of Education.  

If your school is interested in providing outside agencies or officials with access to student attendance records to address truancy, we recommend you discuss it with your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

It’s Time to Evaluate your Evaluations: Bridging the Gaps in Confidentiality, Public Records, and Open Meetings Laws when Boards Conduct Evaluations

Many Nebraska boards of education conduct their superintendent evaluations at their regular December meetings.  Every year we get calls on the “best” or most legally compliant way to conduct these evaluations. This year we’ve fielded a number of calls specifically about the confidentiality of administrator and superintendent evaluation documents (drafts and the “final” evaluation) that are discussed by the school board at a public meeting.  

While state law is not exactly clear on the matter, we believe that employee evaluations are personnel records that cannot be disclosed to unauthorized individuals without the employee’s consent, even if the evaluations are shared and discussed in open session of a board meeting.  This means that they would not be subject to disclosure under Nebraska’s public record statutes, because they are not “public records.” Here’s why...

The Tangled Web We Weave

We start with the premise that, under the public records statutes, any interested person can examine or obtain a copy of a public record upon request.  Neb. Rev. Stat. § 84-712.  This then requires us to define what constitutes a “public record.”  The Nebraska statute defining a public record provides: “[e]xcept when any other statute expressly provides that particular information or records shall not be made public, public records shall include all records and documents . . . of or belonging to” any political subdivision, including school districts.  Neb. Rev. Stat. § 84-712.01 (emphasis added). Thus, if another “statute expressly provides that particular information or records shall not be made public,” such information or records are outside the statutory definition of public records and not subject to disclosure.  So, does such a statute exist protecting the confidentiality of superintendent (and other school employee) personnel records, including evaluations?

Yep!  Section 79-8,109 states: “No other person except school officials while engaged in their professional duties shall be granted access to [a school personnel file], and the contents thereof shall not be divulged in any manner to any unauthorized person.” This is exactly the type of statute that “expressly provides” that records should not be disclosed under public records laws.  As a rule of statutory interpretation, where a statute specifically addresses an issue (as the personnel record statute does), it takes control over another statute that may generally apply (like the public records statutes).  It’s even clearer in this case because the public records laws state plainly that you do not disclose records if any statute “expressly” prohibits disclosure.

Taken together, these statutes mean that the school board may discuss a Superintendent's evaluation at a board meeting without the instrument becoming  a public record. In fact, the district must withhold the record from a person submitting a public record request unless the affected administrator, teacher, or employee authorizes disclosure in writing. 

Discussing the Evaluation in Closed Session

While Section 79-8,109 prohibits disclosure of the records in a personnel file, this does not necessarily mean that discussion of the evaluation may take place in closed session.   Section 84-1410 provides that:

“Any public body may hold a closed session by the affirmative vote of a majority of its voting members if a closed session is clearly necessary for the protection of the public interest or for the prevention of needless injury to the reputation of an individual and if such individual has not requested a public meeting. . . Closed sessions may be held for, but shall not be limited to, such reasons as . . . [e]valuation of the job performance of a person when necessary to prevent needless injury to the reputation of a person and if such person has not requested a public meeting.”

(Emphasis added).

The Nebraska Attorney General’s Office (AG) has taken the position that boards should not go into closed session merely because issues warranting a closed session might arise.  Instead, the AG  has indicated that it interprets this statute as permitting the evaluation of personnel in closed session only if the discussion will include information that is so negative or damaging that a closed session is clearly necessary to avoid needless injury to the employee’s reputation. See File No. 09-M-154; Scottsbluff Pub. Schs. Bd. of Ed., February 19, 2010 (Board failed to clearly show that closed session was necessary where evaluation was overall “very favorable”.)  Consequently, if the evaluation is wholly positive, it must take place in open session. Even if an aspect of the evaluation may be negative, the evaluation must still take place in open session if the Superintendent requests it to occur in open session.

We know how complex it has become to ensure compliance with Nebraska’s Public Records and Open Meetings laws, especially when the confidentiality of employee records is implicated. If you have any questions, please don’t hesitate to call your school’s attorney, or call Karen, Steve, Bobby, Coady, or Jordan.

Special Education Webinar - Help Us Pick the Content!

Every year, we seek feedback from our clients on presentation topics they'd like to see during our upcoming webinars and other conference presentations. Every year, we get something like this: "More special education!" but no specific aspects of special education. We hear you!

The KSB Webinar series turns its focus to special education next Tuesday, November 12 (if you haven't, you can register here), and we want your input. We have a list of topics we've saved up, and we want to know if you have other areas of special education you'd like to learn more about. We plan to use this to inform our webinar content for next week, but we also plan to use it as we select topics for other conferences throughout the year. It should be quick and painless, and we appreciate you helping us out!

SURVEY HERE

If you are already registered, you will receive the Zoom link and materials on Friday.

What are you so afraid of?!

Snow is falling, the Huskers are losing, and hordes of small,  candy-crazed monsters are about to descend upon us! Indeed, there are plenty of things to be afraid of when Halloween hits – but the celebration of Halloween in your school doesn’t have to be one of them.  As a couple short stories from Steve’s favorite holiday remind us, the First Amendment isn’t always that scary. 

The First Amendment and Student Dress & Appearance

It was October 31, 1988. Steve Williams was a senior in high school, and his mom stopped him on his way out the door to school.  Steve was wearing his usual Halloween costume (zombie-nurse, of course), but his mom was concerned that the costume’s skirt was inappropriate for school.  In fact, the skirt fell far short of the “finger-tip” rule that Steve’s school followed. When she voiced her concerns, Steve quickly retorted, “It’s a free country, mom! And no one can stop me from expressing myself. Not you, and definitely not the school!”

Was Steve right? Do students have the right to celebrate their favorite holiday in their costume of choice, no matter how disruptive or distracting it may be? Fortunately for school administrators (and Steve’s classmates) the answer is a resounding no!

The First Amendment protects the freedom of speech and expressive conduct.  In Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), the Supreme Court of the United State acknowledged that students have some First Amendment Rights to free expression while at school.  In Bishop v. Colaw, 450 F.2d 1069 (8th Cir. 1971), the United States Court of Appeals for the Eighth Circuit applied those First Amendment rules to student dress codes.  However, both courts recognized that a student's right to free expression while at school is limited, and that administrators may take appropriate steps to curtail student dress and appearance that interfere with the educational environment. 

In fact, school administrators are afforded “comprehensive authority” to regulate student expression and activity that actually does, or is reasonably forecasted to, “materially and substantially interfere with the work and discipline of the school.” Tinker, at 507, 513.  In Tinker and Bishop, the courts explicitly distinguish the regulation of non-disruptive forms of speech (such as prohibition on political buttons) from the regulation of disruptive forms of dress (such as a minimum skirt length).  While the former is an inappropriate restraint on speech under the First Amendment, the latter is a necessary authority of school administrators tasked with maintaining an orderly educational environment.

Haunted Halls and the Establishment Clause

When Mrs. Williams reached Steve’s school to bring him a change of clothes, she was horrified to find that the school was decorated with what she called “symbols of the occult.”  According to her, the school was promoting the worship of Satan and the occult in in violation of the First Amendment’s establishment clause.  Could she bring suit against the school and force it to remove the decorations?

The answer, again, is no.  It is true the Establishment Clause of the First Amendment limits schools in how they celebrate traditionally religious holidays like Christmas.  However, the courts have been skeptical of claims that Halloween displays are school endorsements of religion. Even though the Halloween decorations may depict images that in some contexts relate to a religion or faith, they are not distinctly religious objects that invoke scrutiny under the First Amendment. The Supreme Court stated in Lee v. Weisman, 505 U.S. 577 (1992) that:

“The First Amendment does not prohibit practices which by any realistic measure create none of the dangers which it is designed to prevent and which do not so directly or substantially involve the state in religious exercises or in the favoring of religion as to have meaningful and practical impact. It is of course true that great consequences can grow from small beginnings, but the measure of constitutional adjudication is the ability and willingness to distinguish between real threat and mere shadow.”

“By its participation in these Halloween festivities, the school board does not send an unmistakable message that it supports and promotes Wiccan beliefs.” Guyer v. Sch. Bd., 634 So. 2d 806, 809 (Fla. Dist. Ct. App. 1994).  

Conclusion

Though material and substantial disruption is the goal of many students on Halloween, schools should feel confident in enforcing rules and regulations necessary to avoid that horror.  Schools should also feel safe to leave the broom, cauldron, and witch decorations up without concern that it is an impermissible endorsement of religion. While the First Amendment is often a rule of common sense in schools on Halloween, don’t be afraid to share any fears about student speech – or any other issues – with your school’s attorney, or call Karen, Bobby, Steve, Coady, or Jordan.  Just make sure that when you talk to Steve, you check to see whether he is wearing his zombie-nurse costume before you make the mistake of Zooming or FaceTiming him. 

Athletic Opportunities Under Title IX: Don’t Just Sit Where You Stand!

Schools around the country are facing increasing demands that they fully comply with Title IX’s obligation that they offer equal athletic opportunities for girls and boys.  A district in Utah has been sued by a group of girls seeking to force the high school to add a girls’ football team. A school in Alabama recently settled a lawsuit claiming that the district treated male athletes better than females.  Chicago Public Schools is still struggling to comply with a 2015 settlement with the Office of Civil Rights that required the district to add 12 girls’ sports. For administrators and board members, the echoes of some Title IX presentations should start to rattle around your thoughts.  

School leaders  know they should take Title IX into consideration when they make decisions about school sports, t, but don’t feel confident that their schools are (or are not) complying with Title IX.  But, it doesn’t have to be this way!  Schools can take advantage of the safe harbors that are available and analyze their Title IX compliance in offering equal athletic opportunities.

Knowing where you stand—and making informed decisions—is always more prudent than guessing on your compliance.  Even if your district is not currently considering program changes, expansions, or co-ops, your Title IX compliance obligation is ongoing.  Assessing your compliance on a routine basis is not only a good idea, it’s legally required. As you’ll see below, even if things have been going well, factors outside of your control like enrollment demographic shifts and changes in students’ interests affect your compliance in real time.

Title IX prohibits education institutions that receive federal financial assistance from discrimination “on the basis of sex.” .  One consequence of Title IX is that public schools must provide equal athletic opportunities for both boys and girls in interscholastic, club, or intramural activities.  34 C.F.R. § 106.41(c). The federal government has articulated three separate “safe harbors” that schools can use to demonstrate that they are effectively accommodating the interests and abilities of both boys and girls.  A school can demonstrate compliance by showing:

1. The athletic participation opportunities for boys and girls are provided in numbers substantially proportionate to their respective enrollments; OR

2. The school’s history and continuing practice of program expansion is demonstrably responsive to the developing interest and abilities of the underrepresented sex; OR

3. The interests and abilities of the underrepresented sex have been fully and effectively accommodated by the present program.

By satisfying just one of these independent tests, schools can show that they are compliant.  There is no priority for one factor over another, but most often the analysis in court cases and OCR investigations focuses on the proportionality prong.  In our experience, analyzing whether your school is providing substantially proportionate athletic opportunities to both boys and girls is a good, objective place to start.  However, if that analysis reveals that one sex is underrepresented, we recommend next examining whether a school’s sports programs are effectively accommodating the interests and abilities of the underrepresented sex.

We have assisted many school districts in analyzing their Title IX compliance in athletic opportunities under these tests..  We can help you identify the relevant information, analyze your current proportionality, and provide advice on your Title IX compliance.  We can also help you anticipate how a certain decision that you may be considering (e.g., whether to add or drop a team, change roster spots, co-op with a neighboring district, etc.) might affect your Title IX compliance.  If you are interested in knowing where you stand—and gaining the ability to make informed decisions for your school sports—contact the attorneys at KSB School Law at (402) 804-8000 or ksb@ksbschoollaw.com

Out of the frying pan; into the Fry...er… An Update on Fry v. Napoleon and what it means for you!

By now, you’ve been in a presentation or read an article about Fry v. Napoleon Community Schools, 580 U.S. ___, (2017), one of the two landmark special education cases decided by the U.S. Supreme Court in 2017.  The Fry family sued the school district alleging it violated the Americans with Disabilities Act (“ADA”) and Section 504 of the Rehabilitation Act (“Section 504”) by refusing to allow their daughter, E.F., to bring her service dog, Wonder, to school with her.  The case made it all the way to the Supreme Court, where the Court held that exhaustion of the IDEA’s administrative procedures is unnecessary where the “gravamen” of the plaintiff’s lawsuit is something other than the denial of the IDEA’s guarantee to a Free Appropriate Public Education (FAPE).  The Court remanded the case to the Sixth Circuit Court of Appeals to determine whether the gravamen of the family’s complaint regarding Wonder sought relief for the denial of a FAPE. You can read our blog post explaining the Court’s decision here (scroll down to about halfway through the post).

On remand, the Sixth Circuit court examined the Frys’ complaint, and found that it did not seek relief for the denial of a FAPE.  Instead, the complaint alleged disability-based discrimination without referring to the special education services provided to E.F. refusing to allow Wonder was discriminatory, not a denial of FAPE.  The court also considered the two hypothetical questions posed by the Supreme Court and determined that the “gravamen” of the Fry’s compliant is that, regardless of whether she was provided a FAPE, the school district violated E. F.’s rights under the ADA and Section 504 by denying her access to school with her service dog.  Finally, the court considered the history of the proceedings between the parties. The court noted that when the Frys originally contacted the school to address access to the school for E.F. with her service dog, they referenced only the ADA. They did not mention the IDEA or any questions or concerns about the IEP.  Instead, it was the school who invoked the IDEA’s procedures each time the service dog issue was raised. The Sixth Circuit ruled that the Fry's claims were not subject to the IDEA's exhaustion requirements and struck the school’s affirmative defense that the Frys failed to exhaust administrative remedies.

Both parties then moved for summary judgment.  E.F. asked the court to rule in her favor as to liability on her intentional discrimination claim, and then schedule a jury trial to determine damages. The school filed a summary judgment motion asking the court to rule in its favor and dismiss this case.  The Sixth Circuit rejected the arguments raised by both parties in support of their motions. E.F’s ADA and Section 504 claims for intentional discrimination and failure to accommodate will proceed to a jury trial.  

E.F. was 5 years old when this case was filed.  She is now 15 and a jury will now decide whether she can recover money damages from the school’s decision not to allow Wonder to attend kindergarten.  Perhaps the case will finally be decided in time for us to know whether Wonder can attend E.F.’s high school graduation!

Mo Money, Less Problems: The New DOL Minimum Salary Overtime Rule is Finally Final!

Today, the U.S. Department of Labor finalized a long-awaited rule  increasing the minimum salary requirement for employees who are exempt from overtime under the Fair Labor Standards Act (press release and summary here).  The rule will be effective January 1, 2020, which is consistent with the DOL’s announcement of the proposal last March.  As predicted, the final rule tracks the proposed rule closely, so you’ve probably heard us talking about this for awhile now.  Here’s what you need to know:

1. For employees to be “exempt” from overtime under the FLSA, they must have exempt duties, must be paid on a salary basis, and must be paid the weekly minimum salary amount for each week they are treated as exempt.  Only the third portion is changing under the new rule. Please note: simply paying someone above the weekly minimum does not make them exempt if their primary job duties are not exempt.

2. Under the new rule, the minimum weekly salary is increasing from $455 per week to $684 per week.  Annualized, that’s an increase from $23,660 to $35,568.  If employees you treat as exempt do not make the new minimum amount each week, you cannot treat them as exempt unless you increase their weekly pay accordingly.

3. HUGE EXCEPTION ALERT: The FLSA explicitly states that the minimum salary requirement does not apply to teachers and administrators.  Yes, you read that correctly. You are not required to increase the salary for teachers or administrators to continue treating them as exempt, in the unlikely event you have any certificated staff member making less than that amount.  (Note: There are a few unique situations here, such as technology coordinators or nurses who do not hold NDE certificates that you should flag for review with legal counsel).

4. The rule becomes effective on January 1, 2020.  You should immediately check all contracts for your non-certificated employees you are currently treating as exempt.  For schools and ESUs, this may include head custodians, head kitchen staff, and some other employees. If any of your currently exempt employees will be set to make less than the new weekly minimum as of January 1, 2020, you will need to decide how to address their exempt status under the FLSA, either by increasing their weekly pay or treating them as non-exempt and thus entitled to overtime.

Now is a great time to assess your overall compliance with the FLSA.  You should compile a list of all of your non-certificated exempt staff, review their weekly compensation, and double check that their “primary duty” is actually exempt.  Please, please, please do not fall into the trap of thinking that just because you pay a salary, an individual is exempt from overtime. If you have any questions about the new rule or other FLSA exemption questions, you should contact your district’s or ESU’s attorney or email us at ksb@ksbschoollaw.com.

What’s Old Is New: How the FMLA is like Nebraska vs. Colorado!

Today, Husker fans begin traveling west en masse toward Boulder to avenge a loss from last year and rekindle a beer-soaked rivalry.  Of course, the first thought that pops in your head is the FMLA, right? I suppose it could be a struggling Nebraska offense in week 1, beautiful mountains, or weed, but let us explain…

The high point of our little trope is to inform you that the federal Department of Labor has, quite literally, decided to take something old and make it new.  On August 5, the DOL proposed updated FMLA compliance forms with a pretty clear purpose: “The goal in revising the forms is to increase compliance with the FMLA, improve customer service, and reduce the burden on the public by making the forms easier to understand and use.”  

We think their success in meeting these goals will look more like a batting average than Adrian Martinez’s completion percentage, but take a look for yourself.  To their credit, the DOL does try to account for and explain the several FMLA requirements within the forms more clearly.  

The updated forms illustrate a key point: FMLA compliance is a tricky, cumbersome, and too-often-forgotten requirement in federal law.  The FMLA is susceptible to misunderstanding and preconceptions that may or may not be accurate. Who, exactly, is eligible for FMLA leave?  What if the employee doesn’t ask for it? What are the timelines? And which forms am I supposed to use again? (Here are the current forms for those scrambling down to your business manager’s office because you forgot all about the FMLA when that custodian with a bad back came in last week….)

Let’s cover a few quick basics to get you in the right frame of mind as we head into the 2nd month of the school year, which is inevitably when paid leave for often-absent employees starts to run out and the FMLA pops up:

• The FMLA applies to all public employers regardless of size, so you must have an accurate and up-to-date FMLA policy and employee notices --check yours!

• Employees are only eligible if they’ve worked for you for 12 months, worked 1,250 hours during the previous 12 months, and work at a jobsite with at least 50 employees within 75 miles.  (Yes, it is weird to have a policy, give notice, and have forms only to tell an employee “Sorry, we’re too small to give you FMLA leave.” No one ever said that the federal government makes sense!)

• Employees do not need to say the magic words, “FMLA leave,” to trigger an employer’s responsibility under the FMLA.  It is YOUR obligation as the employer to designate qualifying leave within 5 days:

(1) The employer is responsible in all circumstances for designating leave as FMLA-qualifying, and for giving notice of the designation to the employee as provided in this section. When the employer has enough information to determine whether the leave is being taken for a FMLA-qualifying reason (e.g., after receiving a certification), the employer must notify the employee whether the leave will be designated and will be counted as FMLA leave within five business days absent extenuating circumstances.

• Once eligible, employees are entitled to 12 weeks of unpaid leave under the FMLA.  However, if their leave is incremental or they have a reduced schedule, it must be counted in increments no greater than one hour:

(1) When an employee takes FMLA leave on an intermittent or reduced leave schedule basis, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave provided that it is not greater than one hour and provided further that an employee's FMLA leave entitlement may not be reduced by more than the amount of leave actually taken.

If you are thinking to yourself, “Wow, that’s only 4 bullet points I’m not sure I’ve got a great understanding of this stuff,” join the club! We didn’t even tackle substitution of paid leave, newborn bonding time, and some of your favorites. If you or your business manager(s) want some more training on these exact issues, KSB is hosting a webinar on September 10 (you can register here). We’ll also cover the interrelated mess of issues when you combine FMLA, FLSA, ADA, Work Comp, and more. In the meantime, if you have FMLA questions you should contact your school or ESU attorney or call one of the attorneys from KSB...and GBR!

It's Time! Here are the 2019 KSB Husker Predictions!

KAREN’S PREDICTION:

I bow to absolutely NO ONE in my love for the Huskers.  Bo Pelini is literally the only person who has goaded me into violating the “Grandma rule” on Twitter.  I am a grown-ass woman who believes that last year’s loss to Colorado was caused, in part, by the fact that I wore the same shirt that I had worn when we played Oregon in 2017.  I am as fanatical a Husker fan as that weird guy who used to paint his torso red and beat a little drum with an “N” on it at games.

And yet….

Love hurts.  Love scars. Love wounds and marks.  All the Lizzo songs in the world will never help me completely recover from my Husker-inflicted PTSD. 

Yes, I know in year two, Scott Frost took a winless UCF team to an undefeated season.  But my friends, in case you haven’t noticed, Nebraska plays in the Big 10 where, unlike the American Athletic Conference, the men are men and the trainers are nervous.  

Yes, I know that Adrian Martinez is poised to have a breakout sophomore season.  But the offensive line is so thin that we are converting Cam Jurgens to center. Championship caliber teams in the Big 10 do not consider starting red shirt freshmen as linemen and certainly not one who is being converted from tight end.  

Yes, I know that Mohamed Barry is back at linebacker this year, but who else wearing a black shirt can we count on?  Last year’s defense gave up more home runs than the this year’s Detroit Tigers. WE GOT BLOWN OUT BY MICHIGAN FOR GOD’S SAKE.  

I have looked up and down this year’s schedule, and I only see 5 assured wins.  Assume we steal one back from Northwestern or Minnesota, or that things go better against the Boilermakers than I fear.  I think the Huskers go 6-6. We’ll eek out a Bowl invite on the strength of the Big Red fan base and hopefully be able to claim a winning season after we thump a lesser opponent in a December game. 

 STEVE’S PREDICTION: 

[KSB management has removed all sections of this prediction that it found unlawful, defamatory, or other otherwise objectionable.] 7-5.

 BOBBY’S PREDICTION:

I’m a different type of Husker fan, now.  Let me explain.

It’s “closing time” in Lincoln, where every new beginning comes from some other beginning’s end.  Preseason top-25 in most publications? I’ve had enough of winning during the off-seasons and fall camp hype.  I’ve become a more skeptical fan--not, like, fully jaded a la Haase, but I’m firmly in “prove it” territory with Husker football.  I’m done with culture articles (though still enjoy them) and promises of “finally looking like a Big Ten team” (whatever the hell that means).  NFL scouts at practice? Great, don’t care. It’s time to shut up and put up, and I think the head coach agrees.  Frost’s sophomore season will start that process, albeit imperfectly.

I’ve long had the 2019 schedule circled as the “easiest” one of the 5 before and after it.  The right teams at home and the best cross-divisional games we could hope for given how much the league’s schedulers hate us, apparently.  But then all the sudden Northwestern wins, like, all its conference games and magically Purdue and Minnesota start not to suck? Great timing.  And Wisconsin and Iowa seem to turn under-the-radar high school kids from Beerbratsville and Soybeanshire into NFL players at an alarmingly increasing clip.  

This season comes down to maintaining critically thin depth at QB, OL, WR, LB, and to a lesser degree, DB. Feel pretty good about RB (aside from those child porn possession charges for MoWash), DL, and TE.  Special teams should improve. But you lose Martinez, that’s at least a couple wins. Some combination of Jaimes, Farniok, Wilson, Barry/Miller, Spielman, or Bootle/Jackson go down, and that’s probably another win-turned-loss. We’re still a few years away from avoiding losses due to severe lack of depth.

So…

WINS: South Alabama, Northern Illinois, Illinois, Indiana, and Maryland.  I’m being slightly generous putting a late November trip to Maryland in here, because that game could prove trap-like.  Their injuries and talent level should still allow that to be a win in any prediction thread.

PROBABLY SHOULD WIN (Nebraska probably favored by 3-7): Colorado, Northwestern, Minnesota, Purdue.  There’s a good argument some or all of these could flip depending on injury or season trajectory the week of the game.  I like Nebraska to take 2 of these games, but 3 tops.

PROBABLY UNDERDOGS: Ohio State, Wisconsin, and Iowa.  Gotta like all of them being in Lincoln, and Nebraska may even be favored in the last 2 based on season trajectory.  But I’m fearful the depth and other factors mean we only nab 1 of these in 2019, 2 tops. If I had to pick, it would be Iowa.  The holidays would be much better for me if we beat them.  

Add that up, and I find myself on the bottom side of the Vegas over/under (which is 8.5 and -130 on the unders at the time of authoring this drivel).  I get that Vegas sets betting lines; it doesn’t predict the future. But I don’t think they will miss by 2-3 deviations again like the last 2 years. I’m thinking the Huskers are somewhere between 7-9 wins, and in my book, that’s progress.

8-4.

SHARI’S PREDICTION:

Well we have started the year off right. We are ranked in the top 25 for the first time since 2014.  Not bad for having a 4-8 record last year. It has to mean something, right? We have to be better than last year and we have to win more games than last year. Another thing in our favor is a lack of a bowl game the last two years.  We will win the first few games, win a tough one against Iowa, lose to Ohio State and have a few that could go either way. Hoping for a 7-5 record this year with a good showing at the bowl game.     

COADY’S PREDICTION:

Notwithstanding last year’s 4-8 record, there was a lot to like about how Nebraska competed and improved over the course of the season.  In my view, the Cornhuskers kept getting better and better. They were not really “out” of any of the last seven games, and took a high-quality Ohio State team to the wire.

I expect Nebraska to show substantial improvement in the Win-Loss column this year, now that the team has had a full year under this coaching staff and its strength and conditioning program.  I see only two clearly uphill games: Ohio State (the talent is still there), and Wisconsin (because I won’t believe Nebraska is stout enough to consistently stop Wisconsin’s running game until I see it).  I may be overly optimistic, but I have the games against South Alabama, Colorado, Northern Illinois, Illinois, Minnesota (“Row your boat outta here, PJ!”), and Indiana already written down as Nebraska wins.  I see the games against Northwestern, Purdue, Maryland, and Iowa as toss ups. Nebraska splits those to finish 8-4. I would be pleased (but not surprised) if Nebraska does even better than that. Pass the Kool-Aid!

MATT’S PREDICTION:

Oh boy do I love predicting Nebraska football! This year will be an improvement from last, but how can it not be.  I believe they will have improved enough on defense to finally stop somebody and with Martinez having a full year with Frosty, they will win 8 games . . . If they are lucky! My prediction: 8-4   GO IRISH!

JORDAN’S PREDICTION:

Last year, Scott Frost rode in on a wave of optimism that swept across Husker Nation. On average, the rest of the KSB Office predicted over 7 wins for the team. But I knew better. After a lifetime as a Detroit Lions fan, I know nothing is more painful than hope.  Once again, hope is in the air as national pundits predict an emergent Nebraska will contend for a Big 10 Championship. It feels like deja vu - so I return again to try to temper your expectations. Despite one of the softest non-conference schedules money can buy,  it's just not the Huskers’ year. A demoralizing loss to Minnesota after a good (but not good enough) showing against Ohio State will drop them out of the top-25 at midseason. The team finishes 7-5, and rallies for an inconsequential victory in a decent enough bowl game.  It should feel good, after last year. But it won’t, because you let hope creep in.

We also wanted to remind you that KSB is having its tailgate party on Saturday, August 31st. We hope you will join us. Please remember to RSVP by clicking here.

BACK TO SCHOOL: A GOOD TIME FOR TRAINING

It is back to school time -- our FAVORITE time of year!  Administrators in Nebraska and all around the country are welcoming their students and staff back in fun and incredibly creative ways. (Here are a few of our favorites!) Although we heartily endorse the fun, celebratory back to school welcome, as school attorneys we have to remind you not to forget to complete a few of the less fun things on your back-to-school checklist.  

First: A quick note for Nebraska Superintendents and ESU Administrators: Don’t forget that, under the Superintendent Pay Transparency Act, you were supposed to have uploaded an executed copy of your employment contract to the NDE by August 1.  With Administrators’ Days falling on the first, we understand that some school districts have not yet completed this task. The consequence for a school district that fails to file its superintendent’s contract is severe.  The statute directs NDE to withhold the district’s state aid and to direct the county treasurer to withhold your tax funds. If you are a superintendent and you have not yet uploaded your contract, you can find the instructions for doing so here.  

Second: As You Meet With Staff, Don’t Forget Legal Training. Most Nebraska administrators are familiar with the list of mandatory annual trainings (dating violence, concussion awareness, etc.) and other required communications (written notice of the evaluation process to certificated staff, distribution of the district’s academic performance to patrons, etc.)   However, we think that administrators should spend a bit of your back-to-school inservice time covering these topics that aren’t required but could save you legal fees and headaches later in the year: 

Sex Harassment and Discrimination.  Staff should, at a minimum, know where to locate your policy and handbook provisions on anti-discrimination based on sex.  This includes your sex harassment policy, complaint procedure, and grievance procedure (for certificated staff). They should also understand who your Title IX coordinator is and how that person can be contacted.  That will be in your nondiscrimination notices, but reviewing it with staff is a good idea. Ideally, you would review prohibited conduct.

Child Find Obligations and RTI/SAT/MTSS/PBIS.  The IDEA and most state regulations, including Rule 51, require training for “appropriate” staff to be able to carry out the district’s “child find” obligations under state and federal law.  These obligations also apply to Section 504. These should be discussed in the context of the SAT process, as well. Any presentation about SAT, MTSS, and PBIS should also remind staff of ongoing child find obligations regardless of the tiered intervention system your district uses.

Mandatory Child Abuse Reporting.  All states require school staff to report suspected child abuse or neglect.  Nebraska statute section 28-711 requires “any school employees” to report child abuse when the employee “has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect.”  You should train on this obligation and on your district’s mandatory reporting policy and procedures.

Staff Acceptable Use of Computer Networks.  You should review your board’s rules for how staff can use the districts computers and computer networks.  Given that the presidential election will be heating up as the school year progresses, staff should be reminded of the limitations placed on their ability to use school resources for political purposes.

Staff Use of Social Media.  You should review your district’s policies and procedures on staff use of social media.  This should include requiring staff to provide the username and password for every school-affiliated account (e.g. “@BulldogWrestling”).  You should make clear to staff that they are not required to provide the username and password for their personal accounts. 

Staff Boundaries.  You should review your expectations and any board policies on the boundaries that staff members should observe with students.   

The school lawyers at KSB regularly visit schools to present in-service training on these and other topics, together with legally required training topics.  If you are uncertain about what additional information or training is mandated, contact your school attorney or the KSB attorneys at ksb@ksbschoollaw.com. 

Have a great 2019-20 school year!!

A Dog’s Breakfast: 3 Recurring Questions from This Year’s Legislative Session

It is July in Nebraska.  The heat index is up over 100 degrees.  Summer conditioning for fall sports is in full swing.  And school boards and administrators are scratching their heads trying to figure out how the heck to implement some of the Unicameral’s recently passed laws.  We are going to share three of the most common questions we have been fielding from KSB Policy Subscribers as they struggle to implement the latest and greatest legislation.  

Committee on American  Civics.  LB 399 changed the duties of the Committee on American Civics, formerly known as the Committee on Americanism.  This bill also changed the date you appoint this committee from the beginning of the school year to the beginning of each calendar year.  

Many of you have asked what the school should do for the 2019-20 school year given that LB 399’s effective date is September 1 and the “new” Committee on American Civics technically doesn’t have to be appointed until January 1.  Many of you have astutely pointed out that if the bill becomes effective September 1 and requires two committee meetings each “year,” which is now a calendar year schedule under LB 399, then it could be interpreted to mean you need to hold those meetings during 2019 and again during 2020.

The law just isn’t clear on how to transition from the statutes in effect now to the new statutes with a September 1 operative date but calendar year requirements.  The most conservative approach is to appoint the “Committee on Americanism” at the beginning of the 2019-20 school year (i.e. at your August meeting) and have it perform its responsibilities under the existing statutes and the new requirements of LB 399 during the balance of the 2019 calendar year.  This would include holding at least two public meetings of the Committee and receiving public testimony at one of those meetings. The board would then appoint/reappoint the “Committee on American Civics” at the beginning of 2020 (i.e. at the January meeting) and have it perform its responsibilities under LB 399 during the 2020 calendar year, which would become the cycle in perpetuity or until they change these laws again.   

A less conservative approach would be to wait until your January 2020 meeting to appoint the Committee on American Civics and have it perform its responsibilities under LB 399 during the 2020 calendar year.  Taking this approach means you may technically violate the current statute which remains in effect until September 1, which is why we say it is more aggressive.

LB 103.  We have fielded several questions from schools and ESUs about what needs to be done to comply with LB 103, which is designed to make political subdivisions address the total number of property tax dollars raised each year, even if the political subdivision has not raised the levy.  If a school district, ESU, or other political subdivision will realize an increase in the total taxes levied, the levy must be reduced to produce no more than the amount of taxes raised in the previous year. Or, if a district approves a total property tax request that exceeds the prior year’s request, the following additional information must be disclosed in the Property Tax Resolution and the Hearing Notice for the Special Hearing to Set Property Tax Request:

• Operating budget for each taxing fund for the prior year

• Operating budget for each taxing fund for the current school year

• Percentage change in operating budget for taxing funds over prior year

• Certified taxable valuation for the prior year

• Certified taxable valuation for the current school year

• Percentage change in the Certified Taxable Valuation over prior year

• Percentage change in property tax levy over prior year

LB 103 states that if the political subdivision determines an increase in the levy is necessary, it must hold a special public hearing and publish notice in a newspaper of general circulation at least 5 days prior to the hearing.  However nothing in LB 103 requires this hearing be in addition to your existing budget hearing.  Therefore, all schools and ESUs really need to do is to make sure the new required information is included in the property tax resolution that your board passes at this year’s hearing.  We have communicated with the staff of NDE’s Financial and Organizational Services division. They have noted that it is probably prudent for all schools and ESUs to include this information in their standard property tax resolution so that it is never inadvertently overlooked.  Therefore, NDE has added all of the wording necessary for LB 103 into their property tax resolution template. You can download NDE’s template by clicking here.  Some of you have asked if we’ll be putting out a form for LB 103 compliance, but we think it makes more sense to adopt one resolution for your tax asking rather than splitting it into two. 

Requiring Insurance for Use of School Property.  Although this technically isn’t a new law, it is an issue that has been coming up frequently with our client districts and about which there is a lot of confusion and misinformation.  School districts and ESUs are frequently asked by members of the community for access to their facilities and/or equipment or, in the case of playgrounds and athletic fields, community members just assume that they can use the school’s property after hours.  Can the school allow or limit this community access? If so, what steps does a school district need to take to address the potential liability in these circumstances?   

The short answer is that a board can be as accommodating or as conservative as it wants, as long as it understands the risks.  There are a few keys to consider as your district or ESU weighs these questions:

1. Take the time to really think through every piece of school property that you let people use for non-school purposes: the school’s chainsaw that the custodian takes home when he needs to clear brush on his farm; the church group that comes to use the school’s oven to make extra pies for the chili feed; the UTV with a snow blade that the board president borrows when he needs to move a lot of snow; the activity bus that the parochial school uses when they make state.  Each time the superintendent allows these items to be used, he or she is technically “leasing” (aka, giving away) public resources without board permission. Administrators and boards should be clear about what equipment may be loaned or leased and under what terms.   

2. Second, think about what, if anything, your board wants to charge for the use of this equipment.  There is no right or wrong answer here, but the board should give the superintendent clear directions about whether it wants to charge for the use of equipment and, if so, how much it wants to charge.  Remember that you cannot treat some favored groups or individuals differently than others. If you let the 4H club use your practice football field for free to practice for the dog show at the county fair, you’ll probably need to let the church use the field for VBS games.  You may not change the ground rules based on the user’s viewpoints or the type of group they may be. You also cannot let board members or employees use equipment for free and charge other members of the community because of the Political Accountability and Disclosure Act. 

3. Third, think about the insurance for those items.  Political subdivisions are liable for up to $1 million per person and $5 million per occurrence if someone is injured due to the school district’s negligence.  You need to either (a) make sure your school’s insurance will still be in effect when people are borrowing or leasing your property and equipment or (b) require the person or entity using the equipment to have adequate insurance.  

4. Fourth, you do not need to fence off playgrounds or put up “use at your own risk” signs near those areas.  The “recreation activities” exception to the Political Subdivisions Tort Claims Act provides that Nebraska Political Subdivisions cannot be liable for injuries which occur while an individual is engaged in “recreational activities,” including using playground equipment, unless the school district has engaged in “gross negligence.”  The law goes on to explain that gross negligence means “the absence of even slight care in the performance of a duty involving an unreasonable risk of harm.”

5. Finally, think about whether you want to allow groups that use your building to charge admission.  Just as with playground use, when the school building is being used for “recreational activities,” your potential for liability is greatly reduced.  However, you cannot take advantage of the recreational liability exemption if the person(s) using your property is charging a fee to spectators. This doesn’t mean it is illegal to charge a fee for little tyke basketball tournament, but it does mean that if they charge admission, you will need to make sure that someone (the school or the little tykes) has enough insurance to cover any injuries.  

If you have any questions about these or other policy or legislative matters, or if you want to talk through how these issues affect you and your board, you should contact your school’s attorney or call Karen, Steve, Bobby, or Coady.

How NOT To Fight Trolls: A School Lawyer’s Fairy-Tale

This school lawyer’s fairy-tale is set in a little county in Texas, where a naive county sheriff’s office faced the lamentable lands of social media, only to be attacked by trolls armed with the Constitution. The sheriff’s office tried to block the trolls’ assaults, but was soundly defeated in a final battle in front of the United States Court of Appeals for the Fifth Circuit. The scariest part of this cautionary tale… it's based on a true story that keeps repeating itself!

The Story

In Robinson v. Hunt Cty., 921 F.3d 440 (2019), the Fifth Circuit heard Deanna Robinson’s claims that the Hunt County Sheriff’s Office (HCSO) violated her First Amendment rights by deleting comments she posted on HCSO’s publicly available Facebook page, and by subsequently banning her from the page.  Robinson sought an injunction requiring HCSO to restore her access to the page, and a declaratory judgment from the court that HCSO’s actions were unconstitutional. Her requests were denied by a District Court, and Robinson appealed to the Fifth Circuit.

The Facebook page in dispute was maintained by the Sheriff’s office, and the “About” section of the page included the following:

Welcome to the official Hunt County Sheriff’s Office Facebook page. We welcome your input and POSITIVE comments regarding the Hunt County Sheriff’s Office. . . The purpose of this site is to present matters of public interest within Hunt County, Texas. We encourage you to submit comments, but please note that this is NOT a public forum.

On January 18, 2017, the HCSO Facebook account posted that:

We find it suspicious that the day after a North Texas Police Officer is murdered we have received several anti police calls in the office as well as people trying to degrade or insult police officers on this page. ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned. There are a lot of families on this page and it is for everyone and therefore we monitor it extremely closely. Thank you for your understanding.

Robinson, along with several other Facebook users, made critical comments on this post. Robinson in particular made highly offensive remarks about HCSO and the deceased police officer mentioned in the post. In her comments, Robinson also criticized the post “for expressing a policy of deleting and censoring protected speech,” noting that “degrading or insulting police officers is not illegal, and in fact has been ruled time and time again, by multiple US courts as protected First Amendment speech.”

Soon after Robinson made these comments, she alleged that HCSO deleted them and blocked her from the page.  In response, Robinson filed suit against HCSO, arguing that the Facebook page was a public forum, or, at the very least, a limited public forum subject to First Amendment protection. In Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995), the Supreme Court explained that the First Amendment “forbids the State to exercise viewpoint discrimination” in either public forums or limited public forums, regardless of whether or not the forum “is one of its own creation.” HCSO did not even try to argue that the Facebook page was not at least a limited public forum.  

Instead, HCSO argued that Robinson’s suit should be dismissed because it failed to adequately establish that the office maintained a policy of engaging in viewpoint discrimination on it’s Facebook page. This argument, however, was undermined by the posts that specifically warned users that the page was meant for “positive comments” and that “ANY post filled with foul language, hate speech of all types and comments that are considered inappropriate will be removed and the user banned.” This was sufficient evidence of a policy of viewpoint discrimination, and the Fifth Circuit ordered the trial court to reconsider Robinson’s request for a preliminary injunction restoring her access to the page and requiring HCSO to discontinue its unconstitutional conduct.

I Feel Like I’ve Heard This One Before

Unfortunately, this isn’t the first time a government entity has gotten into trouble for deleting posts or blocking users on social media.  It's a story that has repeated itself time and time again as more public entities begin to use social media to share information. For example, last year the United States District Court for the Southern District of New York made headlines when it ruled that President Donald Trump’s practice of blocking users on Twitter was unconstitutional.  An appeal of that decision is pending before the United States Court of Appeals for the Second Circuit.

Similarly, in 2014, the Honolulu Police Department was ordered to pay $31,000 in attorneys’ fees to a group of plaintiffs who successfully challenged the department’s practice of removing offensive comments from the department’s Facebook page. These cases are part of a larger trend firmly establishing that state actors cannot engage in viewpoint discrimination after opening a forum for comment on social media.

The Moral of the Story

Using social media to connect with your community is an invaluable outreach tool.  However, using it incorrectly can prove costly, as constitutional violations can lead to paying attorneys fees and damages.  Generally speaking, schools that utilize Facebook and other social media have two options:

1. Disable interactive public comment sections on your pages and posts.

2. Permit interactive public comment sections on your pages and posts, without censoring users or removing speech based upon its content.

By choosing the first option, your school will not be opening a public forum entitled to First Amendment protection.  But you will be losing out on the chance for you and your district’s patrons to truly engage by interacting. By choosing the second option, your school will be able to engage in back-and-forth discussion with your community.  But you will opening a some sort of public forum entitled to full-blown First Amendment protection. That means you should be prepared to permit comments and posts that are harsh, uncivil, and even untrue so long as they do not cross the line into speech which is not protected by the First Amendment such as obscenity.   You must also train district staff who have administrative privileges that they cannot censor or block users who are not nice to the district or even to others within the district. Note that it is not enough to simply say “this is not a public forum” — if you allow comments you ARE some sort of public forum, regardless of what you say about it.  

This is an emerging area of the law.  If your district allows comments and a patron posts something which seems inappropriate, (no matter how obvious it seems to you) talk to your attorney before removing the comment.

If you need help planning your defense against internet trolls, a quick bed-time story to scare your administrators, or assistance with any other issue, we encourage you to contact your school’s attorney, or reach out to your favorite story-tellers (Karen, Steve, Bobby, and Coady, of course!)  

You have no IDEA! Manifestation Determinations for Students Not Yet Receiving Special Education Services

If you’ve recently had the (dis)pleasure of reaching out to one of us for assistance with a student discipline matter, you probably know that we will promptly ask: “Is the student identified as a student with a disability?  Does she have an IEP or 504?”

And if you say no, we turn our attention to the IDEA’s secret child find and manifestation question: “Should the student be referred for evaluation as a student with a disability?  Do you have knowledge that the student may have a qualifying disability?”  

Wait, that sounds like a child find issue, not a student discipline issue…  Actually, it’s both.

Most educators are familiar with the “manifestation determination” requirement for longer-term student discipline when students are receiving special education services: before a school can remove a student from his or her current educational placement for more than 10 days, the school district must conduct a manifestation determination review (MDR).  In addition to the MDR, there are several procedural safeguards, such as prior written notice and the right to appeal.

If the multi-disciplinary team conducting the MDR finds that the student’s misbehavior was caused by or had a substantial relationship to the student’s disability, the student must remain in his or her educational placement.  The same is true if the team determines that the misconduct was a direct result of the district’s failure to implement the IEP. Translation: if any of those questions is answered in the affirmative, the student’s disciplinary change of placement cannot exceed the 10 day limitation under the IDEA.  

With us so far?  If so, good. If not, please hit “forward” and send this to your special education staff...

What fewer people realize is that under Rule 51 and the IDEA regulations, “[A] child who has not been determined to be eligible for special education . . . and who has engaged in behavior that violates a code of student conduct, may assert any of the protections provided for in this part if the public agency had knowledge . . . that the child was a child with a disability before the behavior that precipitated the disciplinary action occurred.” 34 C.F.R. § 300.534(a); 92 NAC 51.016.06A.

A school district or approved cooperative is deemed to have “knowledge” that a child is a child with a disability if, before the behavior that precipitated the disciplinary action occurred:

• The parent of the child has expressed concern in writing to the administration or the child’s teacher that the child is in need of special education and related services;

• The parent of the child requested an initial evaluation of the child under the IDEA (unless the parent refused to consent to the evaluation or subsequent services, or the child was evaluated and found ineligible); or

• The teacher of the child, or other personnel of the institution, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the institution’s director of special education or other supervisory personnel.

34 C.F.R. §  300.534; 92 NAC 51.016.06.

Here’s where many minds get blown: if a school district or approved cooperative has knowledge that the child was a child with a disability before the behavior precipitating discipline, the child must be afforded the protections of the IDEA (such as an MDR prior to a change of placement) even if he or she does not have an IEP or 504 plan.  

Let’s say a parent emails a teacher and says, “I’m worried about my son.  He’s starting to lie about his bad behavior and gets really frustrated when I ask him about it, often throwing things.  Have you seen that in class?” The teacher then responds, “Yes. We have discussed his behavior before, but I have seen more of that in class and his reactions are getting worse.  I’ve had to send him to the office every day this week. Have you taken him to see your pediatrician?”

Bam! The school now has “knowledge” because a parent expressed a behavioral concern to the teacher.  The next time the student acts out and hits a classmate, the school district is supposed to at least consider whether that prior knowledge entitles the student to the protections of the IDEA.  Could the student have an “emotional disturbance?” Maybe an OHI verification for ASD, PTSD, or ODD? That’s what this regulation forces your staff to grapple with.

So how does that work?  Providing the disciplinary safeguards to a student not yet identified as a student with a disability presents a number of practical and conceptual challenges.  How do you do an MDR if you don’t know what the child’s disabling condition actually is? This is exacerbated by the fact that in these situations there is likely a dearth of data and evaluative information normally available to an MDR team.

The US Department of Education’s Office of Special Education Programs (OSEP), which interprets and enforces the IDEA for the Department of Education, recently provided additional guidance in Letter to Nathan, 73 IDELR 240 (2019).  

At the outset, Letter to Nathan addressed whether a local education agency (e.g., school district) may postpone a manifestation determination meeting until after the completion of the initial evaluation or the initial IEP team meeting for the child.  If the school finds itself in one of these “prior knowledge” situations, can they at least postpone the MDR until the evaluation is completed?  “No,” says OSEP, “No.” In Letter to Nathan, the agency notes that the IDEA mandates an MDR be conducted within 10 school days of any decision to change the child’s placement, without exception.  If a school has prior knowledge, it gets no additional time to evaluate the student or create an IEP prior to the MDR.  

So if there is no readily-available “evaluation tool” for a category like emotional disturbance, what does the team consider at the MDR?  OSEP advises that the MDR team review “all relevant information” in the child’s file, including any teacher observations and any relevant information provided by the parents.  The information that caused the district to suspect that there may be a need to evaluate the student will be particularly relevant.

According to OSEP, “Based upon its review and consideration of the available information, the group would determine whether the conduct in question was caused by, or had a direct and substantial relationship to the child's suspected disability.” Letter to Nathan recognizes that when there is no IEP developed for the child at the time of the MDR, “the LEA would be unable to determine whether the child’s conduct was the direct result of the LEA’s failure to implement the child’s IEP.”  So although the MDR questions are slightly different because there can be no “failure to implement the IEP,” the team is still required to conduct the MDR.

OSEP notes that a school district may, but is not required to,  expedite an evaluation of a student when the school district is regarded as having knowledge that the student was a student with a disability.  OSEP’s unspoken advice seems pretty clear: if you’re worried about a lack of data or testing information indicating whether the child even has a disability when conducting your MDR, maybe you should consider an expedited evaluation, or not discipline the student.

Training staff to answer the “secret” manifestation question.  The IDEA requires that schools consider whether a general education student is entitled to the disciplinary protections of the IDEA before imposing disciplinary removals.  The student is entitled to these protections when the school had knowledge that the child was a child with a disability - and the regulations loosely define “knowledge” to trend closer to what most would regard as suspicion.  More concerning for school attorneys is the fact that an email exchange between a teacher and a parent, alone, could be sufficient to confer that “knowledge.”

When the school has “knowledge,” it must undertake the difficult task of considering which protections the student may have under the IDEA.  This may require conducting an MDR without a determination as to whether the student is eligible for IDEA services in the first place. Though the guidance in Letter to Nathan is helpful, more than anything it highlights the practical and legal difficulties of these regulations.  

We strongly encourage schools to provide training to all staff on this issue, including administrators who are responsible for student discipline.  If you have a discipline checklist, the prior “knowledge” question has to be added to it.

If you have any questions about this, or any other issue, we recommend you contact your attorney, or call Karen, Steve, Bobby, or Coady.

Save the Date! If you are a KSB Policy Service subscriber, the 2019 annual updates are underway and links to the updated policies will arrive in your inboxes on June 3, 2019.  We will be holding our webinar to review the policy updates on June 4 at 9:00 a.m. CST.  If you cannot participate in person, we will record the webinar and post it on our website.

STOP, COLLABORATE AND LISTEN!!!

Absenteeism is a daily struggle for all administrators.  One of the most frustrating issues is the child who is habitually absent because his or her family just doesn’t make the effort to get the student to school.  A recent decision from the Nebraska Supreme Court serves as a reminder that schools have certain obligations when students are excessively absent. As an added bonus, we now know that a reluctant or nonresponsive parent cannot stand in the school’s way of moving forward in imposing consequences when a student is excessively absent.  The case is In re Reality W., 302 Neb. 878 (2019), and you can read the full opinion here.

Reality, a 15 year old student, had 68.5 days of unexcused absences in a single school year.  The school made multiple attempts to contact Reality’s mother: it sent four letters home; it made automated calls to the number provided by the mother on each day there was an unexcused absence; and the school counselor made three personal phone calls to the home.  Reality’s mother never responded to any of these contacts.

Shortly thereafter, the counselor observed Reality in the school hallway in the process of skipping class and decided to hold a “spontaneous” collaborative plan meeting with Reality.  He did not attempt to call the mother prior to the meeting. During the meeting, Reality and the counselor discussed her attendance barriers, including her schedule and transportation issues.  The school had previously shortened Reality’s school day and placed her on an IEP, and the counselor provided Reality a bus pass to assist with her transportation issues. The counselor offered family and individual therapy and discussed available community resources with Reality.  They signed the collaborative plan report, and the school mailed a copy to the mother. Reality continued to miss school, and the county attorney filed a truancy petition in juvenile court.

The juvenile court found Reality to be habitually truant from school.  The court found that although the collaborative plan meeting took place without the mother present, the school had fulfilled its statutory requirements to document its efforts to conduct the meeting.  The juvenile court concluded that Reality had no defense under section 79-209(3) to adjudication for habitual truancy. Reality appealed.

On appeal, Reality argued that the school did not meet its statutory collaborative planning meeting duties.  Reality claimed that the collaborative plan meeting which she had with the counselor was not legally effective because her mother was not there and because the school had not even attempted to contact the mother to attend this spontaneous meeting.  Section 79-209 provides in relevant part (emphasis added):

(2) All school boards shall have a written policy . . . to address barriers to attendance. Such services shall include . . . : (b) One or more meetings between, at a minimum, a school attendance officer, a school social worker, or a school administrator or his or her designee, the person who has legal or actual charge or control of the child, and the child, when appropriate . . . . . . . . (3) The school may report to the county attorney . . . when the school has documented the efforts it has made as required by subsection (2) of this section that the collaborative plan to reduce barriers identified to improve regular attendance has not been successful and that the child has been absent more than twenty days per year. . . . Failure by the school to document the efforts required by subsection (2) of this section is a defense to . . . adjudication for . . . habitual truancy[.]

The Nebraska Supreme Court rejected Reality’s argument.  The court explained that a parent’s absence from the collaborative plan meeting is not a defense to adjudication.  Instead, section 79-209(3) provides that “[f]ailure by the school to document the efforts required by subsection (2) of this section is a defense to . . . adjudication for . . . habitual truancy[.]” (Emphasis supplied).  The Court found that there was a great deal of evidence that the school district documented its efforts to comply with section 79-209(2), reduce Reality’s barriers to attendance, improve her regular attendance, and that its efforts had not been successful.   Ultimately, the Court rejected any position that a parent’s refusal to participate in the collaborative plan process can prevent a school from implementing the plan process to improve a juvenile’s attendance.

While the courts ignored some of the school’s shortcomings in this case, remember that the statute requires schools to take certain steps to enforce compulsory attendance laws.  These include:

• Adopting a written policy on attendance developed and annually reviewed in collaboration with the county attorney.

• Including provisions in the policy for handling excessive absences due to illness and the circumstances and number of absences or the hourly equivalent upon which the school must render all services to address barriers to attendance.

• Providing verbal or written communication to the parent or guardian regarding attendance issues.

• Holding one or more meetings to attempt to address the barriers to attendance between, at a minimum, a school attendance officer, a school social worker, or a school administrator or his or her designee, the parent or guardian, and the student (when appropriate).

• Developing a collaborative plan to reduce barriers identified in the meeting(s) to improve regular attendance that considers, at a minimum:

  • Illness related to physical or behavioral health of the child;

  • Educational counseling;

  • Educational evaluation;

  • Referral to community agencies for economic services;

  • Family or individual counseling; and

  • Assisting the family in working with other community services.

In the event that the collaborative plan is not successful and the student has been absent more than 20 days per year, the school may notify the county attorney.  However, the school must notify the student's family in writing before referring the student to the county attorney.

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

Don’t Be an April Fool

Mark April 15th on your calendars.  This is the date on which certificated staff members’ contracts automatically renew for the next school year in Nebraska.  The automatic renewal date is vitally important for two groups of certificated staff members:

Certificated Staff the District may NOT want back next year.  

If school administrators have concerns about the performance of a teacher or other NDE-certificated staff member (principals, SLPs, school psychs, nurses, etc.), they must decide before April 15th whether they want to proceed with the non-renewal or termination of the employee’s contract.  This deadline applies to any action on a teacher’s contract, including reductions in force.  In Bentley v. School District No. 25 of Custer County, 255 Neb. 404, 586 N.W. 2d 306 (1998), the Nebraska Supreme Court held that delivery of a non-renewal notice on April 16th was not sufficient statutory notice to a teacher, and constituted no notice at all.

If you have any reservations about whether to continue a certificated employee’s employment contract, you should contact your school district’s attorney promptly to discuss your legal options.  Your school attorney will want to review the employee's file and assist in preparing the proper notice documents if you decide to proceed with a possible termination or nonrenewal. Most importantly, they’ll be able to assess whether you have a legally sufficient case and whether legally (and politically) you can actually accomplish your recommended action.  Do not issue your own letters without first ensuring you’ve complied with the statutory and NDE Rules for evaluation, including whether sufficient “cause” exists if it is required by the tenure laws.

We have had some administrators ask us what they should put on the board’s agenda before delivering a notice of termination or non-renewal.  The short answer is “nothing.” The statute gives the superintendent the responsibility for notifying a certificated employee of proposed changes to his or her contract in most cases.  The board does not take action until after the staff member decides whether to request a hearing.

Certificated Staff the District DOES want back next year.

The April 15 deadline is also significant for staff members you want to continue in employment.  As a general rule, the April 15 deadline applies to both staff and the district. That means if a teacher has not told you that he/she is resigning for the next school year, he/she is also obligated to return to the district.  Now, this deadline can be extended either by board policy or your negotiated agreement. Some boards foolishly allow staff members to resign as late as May 1, May 15, or sometimes even June 1! Check your policy and negotiated agreement to see if you have extended this deadline voluntarily (and change it if you do).  The board cannot extend its deadline beyond April 15, even if it has extended the deadline for teachers to resign.

Board members and administrators should also know that it is not necessary for a teacher to sign a new contract in order to be bound for next year.  A certificated staff member’s contract is continuing, which means both parties are bound after April 15, unless your district has some policy or other provision that says otherwise.  Some schools use an “intent to return” letter or “renewal agreement” which is lawful, but not legally required.

For reasons we don’t understand, many boards pass a resolution rehiring all of their certificated staff for the next school year.  We strongly prefer that boards not do this.  Come April 15, teachers are automatically rehired if the board takes no action on their contract, so there is no real benefit to passing the resolution.  It’s a purely ceremonial function which becomes extremely awkward when a staff member is being considered for possible non-renewal or termination and the board passes a resolution re-hiring all of the staff members...except that one.  Worse yet, there is an argument that your ceremonial “renewal” vote could be used against the board if the staff member engages in misconduct after the board vote but before April 15.

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

PROM: Short for “PROMise of Legal Problems”

We hope this post finds you warm, dry, and not buried in snow or surrounded by flood waters.  Unless you’re reading this outside of Nebraska, none of that is likely...

With spring (eventually) coming to Nebraska sometime between now and July 1, we wanted to raise some issues in advance of prom that schools should be considering.  

1. Before a tricky discipline issue inevitably comes up in the next few weeks, review your discipline policies (and determine how prom fits into them).

Prom is an extracurricular activity at most schools, meaning it could be a subject of discipline under both regular student discipline policies and activity discipline policies.   Students who get into trouble at school can be prevented from attending prom; students who get into trouble at prom can be kicked out of school. Knowing how your policies and handbooks address those issues now will help you avoid stubbing your toe over the next few weeks.

KSB is hosting a Student Discipline Webinar next Tuesday, March 19, which will cover all student discipline laws and requirements, including extracurricular activity consequences.  Spring is always a time when students test a school’s boundaries and prom weekend always increases calls we get about discipline issues.  Review your policies now, and don’t wait to be blindsided with what to do when a student fails the breathalyzer...

2. Figure out who is “hosting” the prom and post-prom activities, and be sure you keep appropriate legal separation for events not sponsored by the school.

Schools handle prom and post-prom differently in terms of whether they are  school-sponsored events or not. Most schools “host” prom, but post-prom is hosted by parents.  Other schools “host” both prom and post-prom. Both options are legitimate, but the legal consequences for each can be very different.

You should be very clear about who is sponsoring what.  You also need to think through whether private post-prom committees can use the school buses; whether the parents can use the school’s tax exemption to purchase supplies; liability considerations; supervision requirements; and many others.  

Simply saying, “Post prom is sponsored by the senior parents,” is not enough.  If they are using the school facilities, transportation, supervision, equipment, etc., then the intermixing may actually mean it is a school-sponsored event over which you have given up some necessary control.  Be clear, and be clear early in the process.

3. Talk to your Prom and Post-Prom planning committees about students with disabilities who may be attending.

Regardless of whether your school hosts one or both of the activities, all of the applicable disability laws (Section 504, ADA, IDEA) will likely apply to both events.  Even if parents sponsor post-prom, the coordination between prom and post prom will likely require you to accommodate the needs students with disabilities. You should be thinking about the needs of your students: Is the post-prom location wheelchair accessible, and is there a way that the student with ASD can still attend the dance?

Keep in mind that none of the applicable disability laws permit you to foist compliance obligations onto parents.  Things as simple as transportation to-and-from the events may require “related services” for students who require regular transportation services.

4. Have clear policies and plans for drug and/or alcohol testing as a condition of coming to prom.

More and more schools are adopting mandatory random drug/alcohol/nicotine testing for students participating in extracurricular activities.  Most schools without random testing still administer breathalyzer tests at prom.

Here’s the rub: the ACLU of Nebraska has taken the position that including students in extracurricular drug testing policies as a condition of attending school dances is not permitted.  The ACLU has said, in the context of a school’s drug testing policy, “[The school’s] proposal has one provision that may be too broad and an unconstitutional overreach: testing at school dances.”  However, the ACLU concedes that “some courts have upheld breathalyzer testing at school dances.”

We do not agree with the ACLU’s assessment regarding drug testing, though we want to raise the issue.  We believe the legal basis for drug testing students in extracurriculars--namely the very minimal right (if any) to participate in sports and activities--applies equally to dances which are a privilege and not a right.  However, if your school conditions attendance at dances like prom and homecoming on submitting to random testing, the ACLU may challenge it. You should talk that through with your school’s attorney.

5. Be careful with rules like “no same-sex dates” and requirements  that prom “king” and “queen” be based on a student’s biological sex.

Title IX, as most of you know, seems like it’s constantly in a state of flux.  Between wild swings of administrative enforcement positions and the new proposed regulations, it’s tough to know how to respond when a student asks if they can bring a same-sex date.  Is that protected by Title IX, or not? What if a transgender male, biologically female, asks to be considered for prom king? The answers, of course, are not very clear.

It’s a matter of “when” and not “if” these questions will happen at your school, so we recommend considering the following to avoid a legal issue and to avoid stigmatizing any student for any reason.  Have a one-ticket-per-attendee rule, and don’t give “discounts” or special treatments to “couples.”  Have a “promenade” of your snazzily-dressed students, but don’t have them walk as “couples.” Consider whether you will allow students to bring “dates” who are not current students of the school, whether that’s a recent graduate or a student from a neighboring school.  Consider doing away with “king” and “queen” entirely and replacing it with a “community service” award or something similar.

Simply saying, “No,” comes with legal risks.  Although we’re sensitive to the political and traditional considerations at all school districts, planning ahead is the best way for boards and administrators to avoid legal pitfalls.

As with all of these issues, the legal complexities should be worked out in advance if at all possible.  If you haven’t reviewed these and related considerations recently, now’s the time. We recommend you do so soon and collaborate with your school’s attorney, or call Karen, Steve, Bobby, Coady, or Mandy.

New FLSA Overtime Regulations: It’s Like Deja Vu All Over Again!

Many of you remember that fateful fall a few years ago when the Obama Administration’s new overtime rules would have required employers to pay at least $913 per week ($47,476 annualized) in order to treat any employee as exempt from overtime payments.  You probably gave your head custodian a pay increase or converted her contract to hourly pay with overtime. You remember this, right?! We feel compelled to repeat for the millionth time that the employee also has to be paid on a salary basis and actually have exempt duties, but those proposed regulations forced many schools to consider changes to exempt staff contracts and compensation.  

About now is when most FLSA articles and presentations force some to think: “Wait, hold on, we can’t just treat someone as exempt from overtime by paying them a salary?”  NO, NO, NO, AND IT WILL ALWAYS BE NO! We digress...

Alas, here we are again.  Late last week, the Trump Administration released long-anticipated FLSA overtime and exemption proposed regulations.  They sought public input starting in July 2017, but now we actually know what they are proposing.

Here is the DOL press release.

Here are 219 pages of explanations and proposed regulations (and the actual regulations don’t start until page 211).

Here’s a quick rundown of some the important parts in the proposed regulations:

1. The Obama Administration’s proposed rules from 2016 (which were kiboshed by a Texas federal judge and stalled indefinitely in the 5th Circuit) would be formally withdrawn;

2. The big one: current minimum salary for an exempt employee, $455 per week, would be raised to $679 per week. Annualized, that’s going from $23,660 to $35,308;

3. The salary minimums would be updated every 4 years, but not automatically.  The DOL will use notice-and-comment rulemaking so employers have notice and time to comment, and the DOL may also decide not to raise the minimum based on “economic” factors during the 4-year review;

4. The rule is proposed to be effective starting January 1, 2020. Yes, this means thinking about classified staff contracts again this spring and fall in anticipation of a mid-year increase for the weekly salary minimum during the 19-20 school year;

5. The DOL estimates that about 10% of workers between the $455 to $679 per week compensation levels are misclassified as exempt and should be getting overtime, so fair warning, they are on to those of you who still just pay a salary to all of your secretarial and administrative staff without doing the duties analysis….

Here’s what’s NOT changing under the proposed regulations:

1. Teachers remain exempt regardless of salary level.   Under 29 C.F.R. § 541.303, teachers are specifically exempt if their primary duty is teaching, even if they do not meet the minimum salary requirements; and

2. You still can’t just pay a salary to avoid overtime!  An employee’s “primary duty” for the employer must meet one of the “exempt duty tests” for the employee to be treated as exempt from overtime, in addition to being paid on a salary basis and earning the new weekly salary minimum of $679.  The executive, administrative, professional, and computer employee duties tests are not changing, and you should be making sure all of your exempt employees meet at least one of the duties tests.

As always, we’ll follow up with any further developments.  If your school or ESU has questions about FLSA exemptions or these proposed regulations, you should contact your district or ESU attorney, or call Karen, Steve, Bobby, Coady, or Mandy.

If In Doubt, Call It Out: Child Abuse Reporting

If in Doubt, Call It Out: Child Abuse Reporting

Educators frequently check with us to ascertain whether a particular incident is a “mandatory report” under Nebraska’s child abuse reporting statute, section 28-711.  The reporting obligation in Nebraska’s statute comes from the criminal laws (Chapter 28), not the laws applying to schools (Chapter 79).  If you’ve been paying attention to the news, you now know why.

Many administrators have asked us about this story regarding a principal at an elementary school in Omaha who was criminally charged with failing to report suspected child abuse.  Other educators have asked about our standard policy after the World Herald editorial published an editorial encouraging school boards to review their policies relating to reporting child abuse and neglect.  Obviously OPS’s policy has gotten a lot of attention, but the editorial also took some shots at reporting policies at other area schools.  

We want our readers to be clear on your reporting and policy obligations, so let’s get to it.

All “school employee[s]” have a child abuse reporting obligation.  Section 28-711 makes “any...person” in Nebraska a mandatory reporter, and the statute names “school employee[s]” specifically.  That means all schools should make the reporting obligations clear to all staff, including teachers, non-certificated staff, community member coaches, and even volunteers.  Here’s the actual wording of the statute:

When any...school employee...has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances which reasonably would result in child abuse or neglect, he or she shall report such incident or cause a report of child abuse or neglect to be made to the proper law enforcement agency or to the [DHHS]... toll-free number.... Such report may be made orally by telephone with the caller giving his or her name and address, shall be followed by a written report, and to the extent available shall contain the address and age of the abused or neglected child, the address of the person or persons having custody of the abused or neglected child, the nature and extent of the child abuse or neglect or the conditions and circumstances which would reasonably result in such child abuse or neglect, any evidence of previous child abuse or neglect including the nature and extent, and any other information which in the opinion of the person may be helpful in establishing the cause of such child abuse or neglect and the identity of the perpetrator or perpetrators. Law enforcement agencies receiving any reports of child abuse or neglect under this subsection shall notify the department pursuant to section 28-718 on the next working day by telephone or mail.

If you haven’t shared the specific requirement with your staff recently, you should.  Feel free to hit “forward” on this post or at least include it in your next staff inservice, along with a review of your policy.  And on that note...

Check your policy.  The OWH editorial criticized the Omaha Public Schools policy for stating that school employees should report suspected child abuse or neglect within 24 hours.  The editorial staff correctly pointed out that there is no 24-hour reporting window in the statute, and there are circumstances where waiting 24 minutes may be too much.  However, we freely admit that our standard policy used to contain an outside limit of 24 hours to make a report, but only in situations where the school needed to do some rudimentary investigation to clarify whether any reporting obligation had been triggered.  We decided to change that in 2016 based on some cases we were working on at the time. (For all KSB Policy Service subscribers, be sure you have the most recent version! We’d be happy to send it to you if you want to double check, or you can log into the policy service page here.)

Allow all staff to report to the Hotline or law enforcement.  Some older policies simply require staff to report suspected abuse to their upline administrator, and then the administrator is required to report the abuse.  We think that should change. Our preferred policy now contains these 4 primary principles:

1. The staff member must report to both (a) law enforcement or DHHS, and (b) to their building principal.  The school may have additional reporting or state and federal law responses--such as Title IX--to consider after a report is made.

2. If the principal calls in suspected abuse or neglect, the principal will inform all staff members with knowledge that he or she has made the report.

3. Nothing in the policy should be viewed to hinder any school employee from making their own report to comply with the staff member’s own reporting obligations.

4. If in doubt, report.  Staff can consult with their administrators to talk through the reporting obligations, but the directive to all staff should be to err on the side of reporting.

Once case out of Kentucky (Commonwealth v. Allen) held that a teacher and counselor could be criminally liable for failure to report child abuse, even if they reported it to their building principal pursuant to a standard practice at the school.  Much like our statute in Nebraska, the Kentucky Supreme Court said that multiple reports are expected on the face of the statute, even if they are entirely duplicative. All staff should make the report, and other school employees cannot assume a report will be made by their upline administrator.

We want to note that Nebraska’s statute does permit a school employee to “cause” a report to be made rather than actually making one.  We believe that means a teacher or other staff member is relieved of their reporting obligation as long as they know for certain that their administrator has made the report and included their name in it as someone with information about the alleged incident leading to the report.  That’s why our policy requires the principal to tell staff if the principal has made the report. However, all school staff should always have the flexibility to make their own report, even if they know their information has already “cause[d] a report to be made.”

There are other reporting obligations.  Keep in mind that the child abuse report may be the first of several which need to be made.  School principals must also report any known or suspected violation of the Nebraska Criminal Code by a student, which the county attorney for that county wants to be reported to law enforcement.  That comes from section 79-293.  

The Nebraska Department of Education’s Rule 27, which contains the professional standards for certificate holders, also contains mandatory reporting obligations for private (section 003) and public (004) certificate holders if the misconduct involves a fellow certificate holder.  For example, in the situation where a staff member sexually abuses a student, there would be child abuse and NDE reporting obligations.

Now is the time!  If you haven’t reviewed your abuse reporting policies and procedures recently, you should.  The same goes for training staff on reporting obligations. If you aren’t sure whether your policy and practice complies with state law and generally best practices, or if you want help thinking through the best way to train your staff, you should consult with your school’s attorney or call Karen, Steve, Bobby, Coady, or Mandy.

Ice Ice Baby - How to Postpone a Board Meeting Due to Weather

Today is the second Monday of the month, so many Nebraska Boards of Education have scheduled their meeting for tonight.  Today is also the approximately 1,000,000th ice storm that the state has endured this winter. Many superintendents and board members have reached out to us asking about what they need to do to accommodate weather concerns.  

First, let’s start with what you CAN’T do. In discussions with representatives from the Attorney General’s office just this morning, you cannot move up the time of your hearing. If you were scheduled to meet tonight at 7 PM, you cannot move the meeting up to noon today to beat the worst of the weather.

Now, onto what you can do and delaying the meeting. There is no requirement in the Open Meetings Act that you delay if public travel is at issue.  So long as a quorum of your board members can arrive at the meeting, you may lawfully go ahead with the meeting.  However, the weather may make it impossible or inadvisable for board members to travel to their board meeting tonight.  If that is the case, you have several options, depending on the wording of your board policy on meetings.

We have conferred with the Nebraska Attorney General’s office on this issue at several points over the years.  The attorneys in that office who handle open meetings complaints have advised us that so long as your board policy on meeting notices includes a process to follow due to weather delays, you may reschedule your meeting without following the complete meeting notice procedures from scratch.  Check your board’s policy to see if there are protocols for meetings that are interrupted by inclement weather (KSB policy service subscribers, that will be the “Weather Delays” section of Policy 2008).

If your policy does not include a process for weather delays, you should contact your school’s attorney before making a decision to postpone your meeting.  In either case, the safest route is to do treat the delay like a brand new meeting with at least 48 hours’ notice after you post notice again.  If your board policy requires your meeting notices to be published in the newspaper, you will have to move quickly to make sure the publication schedule of your paper will accommodate the new meeting.  (This is why we advise clients to have a post-only or website policy for board meetings, in addition to a weather delay provision.)

Nebraska statute requires boards of education to hold their regular meetings on or before the 3rd Monday of the month.  If you are under the gun and simply cannot get your new meeting advertised in the method set by your board before that time, we think it is better to hold a “postponed” meeting on or before the 3rd Monday and do your best to provide reasonable notice to the public.  Even the AG has discussed with us informally that following the same process you do for school closings (social media, radio, TV stations, website, etc.) and then reposting an updated meeting notice is probably sufficient to get the message out there.

Finally, just a reminder that tonight, February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.”  You will learn (1) everything you need to know about parliamentary procedure (which legally isn’t much); (2) the basics of closed session; (3) what you need to know about school district insurance and individual legal liability for board members; (4) how to deal with patron complaints; and (5) your role and responsibilities as a board member.

If your board cannot participate in the webinar live, we will record the session and make it available on our website.  If you would like to register for this webinar, click here.  

5 Things Every (New) Board Member Should Know

So you are a new school board member and you survived your first meeting.  Congrats! Or you are a veteran board member and have been through more board meetings that you care to count.  Thanks for your service! Here is the thing: there are so many expectations and laws governing school boards that new or veteran, it can be overwhelming to figure out how to do even things that should be simple.  

KSB is going to try to help.  Next Monday, February 11 at 6:00 p.m. C.S.T., we will host a 50-minute live webinar titled “Five Things Every New School Board Member Should Know Right Away.”  You will learn (1) everything you need to know about parliamentary procedure (which legally isn’t much); (2) the basics of closed session; (3) what you need to know about school district insurance and individual legal liability for board members; (4) how to deal with patron complaints; and (5) your role and responsibilities as a board member.

The idea is to invite new (and experienced) board members to arrive at your February meeting an hour early (or maybe slightly change your meeting time if possible) so that they can participate in the webinar before their second board meeting.  If your board cannot participate in the webinar live, we will record the session and make it available on our website. If you would like to register for this webinar, click here.  The cost is $150 per board (regardless of the number of board members who actually participate, so the more the merrier!)

As a preview of how simple things can get complicated quickly, here is a pop quiz: How much notice must a board give before it can meet?

Answer? It depends. (you saw that coming, didn’t you?)

The Nebraska Open Meetings Act requires schools to give “reasonable advance publicized notice of the time and place of each meeting by a method designated by the body and recorded in its minutes.”  But the law doesn’t specify a number of days or hours, so school boards have to rely on the Attorney General’s decisions and court opinions to figure out exactly how much notice is sufficient.

Twenty-Four Hours is NOT Sufficient Notice.  On February 16, 2018, the Nebraska Attorney General’s Office (AG) issued a disposition letter in response to a complaint that the Omaha School Employees’ Retirement System Board of Trustees provided insufficient meeting notices.  The board indicated that it posted notice of its upcoming meeting at the main door entrance of the Teacher’s Administrative Center (TAC) and on the receptionist desk in the Retirement Office at the TAC at least 24 hours in advance.  A copy of the meeting schedule for the entire year was posted in the Retirement Office of the TAC and on the OSERS webpage.

The AG determined that the posting of the meeting schedule for the entire year did not provide sufficient advance publicized notice, citing its previous opinion that concluded that “advance publicized notice” means a separate, specific advance notice must be given for each meeting.  See Att'y Gen. Op. No. 137 (Aug. 8, 1972).  The AG determined that posting at the TAC 24 hours in advance of the meeting was not reasonable.  This determination appears to have been made in part because most OSERS members are not regularly present at the TAC.  To ensure future compliance with the Act, the AG recommended that the Board post a complete meeting notice on its website prior to each meeting.

In another matter, the Midland Area Agency on Aging caused a notice of its meeting at 9:30 a.m. on January 4th to be published in the Hastings Tribune on January 3rd.  In a disposition letter dated April 12, 2018 issued in response to a complaint about the meeting notice, the AG indicated that the MAAA should publish its notice “more in advance of its meetings than the day before, particularly given that the Hastings Tribune is a daily publication.”

What Have the Courts Said?  In Pokorny v. Schuyler, 202 Neb. 334 (1979), the Nebraska Supreme Court held that a meeting notice posted in three public places one week before a meeting was sufficient, but a 10:30 a.m. special meeting notice posted in three public places at 10 p.m. the night before a meeting “could hardly be considered to be reasonable advance publicized notice.”  

In Banks v. Board of Education of Chase County, 202 Neb. 717, 277 N.W.2d 76 (1979), the Nebraska Supreme Court held that a meeting notice posted at the high school, the courthouse, and the post office two days before the meeting was sufficient.  In an unpublished opinion in Allen v. Greeley County Sch. Dist. No. 501, 1994 Neb. App. LEXIS 186 (Neb. Ct. App. 1994), the court found that placing notice on March 4th in seven public places was sufficient notice for a meeting held on March 6th at 8 a.m.

In City of Elkhorn v. City of Omaha, 272 Neb. 867, 725 N.W.2d 792 (2007), the Omaha mayor called a special meeting approximately 12 hours before a 10 p.m. special meeting.  Shortly thereafter, notice was posted on the city office’s bulletin boards and on its website, and an agenda of the meeting was faxed to 19 area media outlets.  Additionally, the Omaha World-Herald published an article about the meeting in its afternoon edition of the paper. The court concluded that under the circumstances, Omaha's notification efforts were reasonable and sufficient:  

In Pokorny, we did not state that a 12-hour notice is always insufficient under § 84-1411(1).  Instead, we determined that the short time between the notice and the meeting was insufficient because the notice was unlikely to reach the public before the scheduled meeting.  [In addition to the factors listed above], [f]our television broadcasters were at the meeting, and one station broadcast the meeting live. Therefore, unlike the notice in Pokorny, the record shows that Omaha's notice reached a substantial part of the public before the scheduled meeting.

City of Elkhorn, 272 Neb. at 879.

Conclusion.    If you’re in a pinch and want to schedule a special meeting quickly, how much notice must you give?  Based on Banks, there should be little question that 48 hours’ notice is sufficient.  However, scheduling a meeting on less that 48 hours’ notice would be done at your own risk.  The public meeting laws are to be broadly interpreted and liberally construed to obtain the objective of openness in favor of the public.  The AG’s Office has made clear at least twice this past year that 24 hours’ notice is insufficient. It is unclear if their findings would have been different if the public bodies had posted public notices in more places, notified (more) media outlets, posted on social media, posted on their webpages, or had media outlets attend and/or broadcast their meetings.  Given the AG’s recent guidance and the unique circumstances present in City of Elkhorn, relying on the “Omaha exception” and providing 24 hours’ notice or less for a special meeting seems especially perilous.  You should check your district’s or ESU’s policy to be sure there are no provisions or references to things like “at least 24-hours’ notice” when calling regular or special meetings that may run afoul of these decisions.

If you have questions about your district’s approach as you work through the issues, you should contact a KSB attorney or your school attorney.