What’s Reasonable? Medical Leave Requests and the Americans with Disabilities Act

“KSB, hypothetically speaking (our favorite phrase!) how should I handle an employee who has taken multiple leaves of absence for medical reasons and still provides a doctor’s note that the employee may be unable to work with or without accommodations for an additional three months?”  This is a fan favorite question around the office.  If you know lawyers, our favorite response is always “it depends.”  (This is what three years of law school teaches lawyers.)  

In November, the United States Court of Appeals in the First Circuit decided a case regarding a 9th grade English teacher who requested a four week leave of absence for hip surgery.  After complications arose post surgery, the employee’s doctor provided a note stating the employee would be unable to work with or without reasonable accommodations for an additional three to six months.  At this point, the employee had utilized all her FMLA leave and available paid time off.  The school district ultimately terminated the teacher’s employment and said she could reapply upon being cleared to work.  The teacher filed a lawsuit against the school alleging disability discrimination under the ADA.

While Nebraska and South Dakota are not part of the First Circuit, the ADA is a federal law so the language and rationale the court utilized are insightful.  The court stated the teacher’s argument failed to consider “the school's need to provide continuity and adequacy of instruction in all five of her English classes.”  Additionally, the court noted the teacher did not consider the risk the school faced from the possibility that the substitute teacher, who was paid a daily rate and was not a regularly contracted teacher, could leave the assignment at any time.  Lastly, the Court said “nor does [the teacher] address the school's legitimate concern with its inability to guarantee its ninth-grade English students high-quality education from a full-time, permanent instructor during the 2019-2020 school year as a result of her leave.”  The school district was entitled to summary judgment. (Teacher loses!)

In general, if you have an employee that gives a definitive time when they will be able to return to work and complete their job (with or without a reasonable accommodation) and that amount of time is reasonable, then the school should consider providing additional leave under the ADA.  If the employee has utilized all paid leave and FMLA leave, the school may consider granting additional leave under the ADA if the request is reasonable.  (Remember, you likely will be considering termination of the employee’s health insurance and offering COBRA coverage if FMLA leave has ceased.)  Additionally, for our Nebraska clients, you can always consider an unpaid leave of absence agreement under Neb. Rev. Stat. 79-838.

As you work through long term leave situations, do not forget to consider the FMLA, ADA, leave of absence agreements, or the impact of long term disability policies.  If you have any questions as you work through the analysis of whether medical leave is reasonable, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

270,000

270,000.  The number of PK-12 grade students who are part of the foster care system in the United States.  According to the U.S. Department of Education, these students are more likely to experience steep challenges to school success including lower grades, graduation rates, and attendance.  The Fostering Connections Act in conjunction with the Every Student Succeeds Act provides additional protections for children in foster care.  In addition to the unique needs of students in foster care, schools must consider the IDEA Part B and C considerations for these students. 

For example, is a foster parent a “parent” under the IDEA?  According to the IDEA, the term “parent” includes a foster parent “unless State law, regulations, or contractual obligations with a State or local entity prohibit a foster parent from acting as a parent.”  34 CFR 300.30.  In Nebraska, 92 NAC 51-003.44 defines “parent” to include “a foster parent.”  Similarly, in South Dakota, ARSD 24:05:13:04 defines “parent” as a “foster parent” as well.  

Does that mean if a special education student is in foster care a school should deal with the foster parents and ignore the biological parents?  Not exactly.  In both states when “the biological or adoptive parent, when attempting to act as the parent and when more than one party is qualified to act as a parent, must be presumed to be the parent unless the biological or adoptive parent does not have the legal authority to make educational decisions for the child.” See 92 NAC 51-003.44, ARSD 24:05:13:04.  That means when a student is in foster care and the biological/adoptive parent is trying to be present in the student’s life, the school should involve BOTH the biological/adopting parent(s) AND the foster parent to IEP meetings.  So long as ONE parent shows up, the IEP meeting can proceed.  Under both Nebraska and South Dakota law, a foster parent may make education decisions on behalf of their foster children and may exercise IDEA rights.  Neither state requires the child’s biological parent to provide consent to release information from education records to foster parents.   

How should a school handle evaluations and eligibility?  In July 2013, OSEP issued a letter to state directors of special education clarifying issues surrounding highly mobile children such as those in foster placements.  OSEP confirmed that highly mobile children should have timely and expedited evaluations and eligibility determinations.  It also pointed out that if a school begins the evaluation process and the child transfers to a new school district, the new school district may not delay the evaluation process in order to implement the RTI process.

How does FERPA factor into considerations regarding records of those students in foster care?  FERPA “permits LEAs and schools to disclose education records of students placed in foster care, without consent of the parent or eligible student, to an agency caseworker or other representative of a state or local child welfare agency (CWA) or tribal organization authorized to access a student’s case plan, when such agency or organization is legally responsible, in accordance with state or tribal law, for the care and protection of the student.”  While this FERPA exception is permissive, the SPPO office has stated that schools are encouraged to disclose education records to welfare caseworkers to help ensure the child’s education needs are met.        

All members of the education community should be worried about the data showing abysmal educational outcomes for students in foster care.  We should all do everything we can to make sure foster students’ special education decisions are not reduced or delayed due to confusion about who is the “parent” under the IDEA.  If you have any questions about foster children and the IDEA, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000 or send everyone an email at ksb@ksbschoollaw.com.

Social Media: Today’s Equivalent of Cigarettes?

Some of the KSB crew grew up in the 1990s (We know . . . hard to believe) and vividly remember the anti-smoking commercials routinely run on prime time television.  Remember this or this?  The Surgeon General issued countless warnings about the hazards of cigarette use, especially with teens.  While cigarette use has drastically declined with teens since the 1990s, we are now faced with the newest health crisis.  In 2023, the U.S. Surgeon General issued an advisory report sounding the alarm on teenage social media usage and the long term impacts usage may have.  The report is an urgent call for action to policymakers, technology companies, researchers, families, and young people.  Just like the addiction cigarettes cause, many teens report similar addictive feelings towards social media.    

Not only is the federal government concerned about the impact of social media on youth in our country, forty-one states (including Nebraska and South Dakota) have sued Meta, the owner of Facebook, Instagram, Threads, and WhatsApp.  The lawsuit alleges Meta platforms are harming the mental health of young people, are not safe and are designed for compulsive and extended use, interferes with young people’s sleep, promotes body dysmorphia in youth, and violates many Children’s Online Privacy Protection (COPPA) rules.  The lawsuit alleges that Meta has misinformed the public about the substantial dangers of social media in an effort to boost profits at the exploitation of youth health. 

In addition to the concerted efforts from states, several school districts across the country have also sued Meta and other major social media companies.  Similar to the claims of the states, school districts are claiming social media products are harmful to mental health, designed to be addictive, and are specifically targeted to children.  For example, Seattle Public Schools was the leader in the school based lawsuits.  It claims that public schools have been asked to shoulder the mental health crisis caused by teen social media usage.  Schools in Washington, Florida, California, Pennsylvania, New Jersey, Alabama, and Tennessee have all filed similar lawsuits.  Other states have sought to legislate protections for social media usage such as Utah which will bar children under the age of 18 from using social media without parental consent. 

At KSB, we will continue to watch the progress of the lawsuits and determine what, if any, steps our schools can take to combat the mental health concerns facing teens.  As a reminder, we offer the Digital Citizenship student assembly, staff in-service, or parent assembly (or a combination of the three) which discuss teen social media usage, the newest findings from the Surgeon General’s report, and consequences of engaging in cyberthreats or bullying.  If you have any questions or would like to book a Digital Citizenship assembly, please reach out to ksb@ksbschoollaw.com or give us a call at 402-804-8000.

PPACA Webinar 2023!

It's that time of year!  If the subject line in the email didn't get you excited for the holiday season and all of those PPACA forms...I don't blame you.  Please forward this to your business manager or whoever draws the short straw on the PPACA IRS reporting, if they did not receive it.

You can register using THIS LINK.

Here are the details:

When: KSB will host its annual PPACA 1094-C and 1095-C reporting workshop from 9:00 a.m. to 12:00 p.m. Central Time on Wednesday, December 13, 2023. If you cannot attend live at that time, the zoom will be recorded, and all who register will have access to the recording and materials shortly after it is completed live.

Where: The webinar will be conducted via Zoom, and all participants will be able to ask questions during and after the presentation until we hit noon Central.  All registrants will receive a copy of the slides, materials used in the webinar, and this year’s version of the instructions and forms, plus IRS documents establishing affordability, reporting deadlines, etc.

Cost: The cost will be the same as years past, at $250 per school. 

What We'll Cover: If the words "1095-C" and "lines 14, 15, and 16" don't ring a bell, you're either new or have tried to forget it since last year. We'll start with a quick refresher and update on what the Biden Administration has said and done that could impact your compliance.

As always, the bulk of the presentation will dig back into the PPACA reporting requirements, forms, and deadlines.  We'll go through the forms (1094-C and 1095-C) line-by-line and explain the various coding options and data you’ll need to ensure your reporting is accurate.  Even if your software company runs these reports for you, you will have to know and understand the reporting obligations and double check the forms for accuracy. Remember, these forms are what the IRS uses to determine your compliance with PPACA (and assess penalties)!

It is worth noting that the 2024 affordability percentage has dropped significantly, down to 8.39%! This could have a big impact on offers of insurance you plan to make in the next year, so we'll talk about that, too.
Finally, we'll have plenty of time during and after the presentation to talk through

Be On Alert: The Correct Response to Bullying Under the IDEA

Bullying.  The buzzword of the 2000s which filled assemblies, professional development meetings, school policies, and OCR case loads.  During the 2000s (ah, the decade of the iPod, rise of reality TV, hipsters, and Facebook), administrators and teachers were trained on the public health concerns over bullying.  However, one crucial area that was often overlooked during this time was the implications for special education.  With a renewed focus on bullying and its mental health impacts, especially those caused by social media, districts must ensure special education staff are aware of the necessary responses to bullying.  Additionally, IEP teams should be reminded that the team must address the whole child’s needs, including bullying and chronic absenteeism or truancy. 

For example, the Wisconsin Department of Education recently found that a district denied a student FAPE when it did not address incidents of bullying.  In re: Student with Disability, 123 LRP 30499 (SEA WI 10/03/2023).  Here, the student was diagnosed with autism spectrum disorder and was subjected to three incidents of bullying during the start of the 2022 school year.  During the last incident, the student eloped from the classroom as a result of the bullying.  These bullying incidents caused anxiety in the student that resulted in school avoidance.  As a response to the incidents, the IEP team convened in October to address the anxiety and bullying.  Notably, the IEP team determined the student’s IEP was appropriate and did not discuss any revisions or supports to address the bullying, possibly because those were “new” concerns unrelated to the student’s verification category.  The student continued to have chronic absenteeism and did not return to school.  The parents filed a state special education complaint, and the Department of Education found corrective action necessary.

Districts have an obligation to ensure that students with disabilities who are subjected to bullying continue to receive FAPE.  Bullying can inhibit a student with a disability from receiving a meaningful educational benefit.  To respond appropriately to allegations of bullying, a district should convene the student’s IEP team and determine whether the student’s needs have changed and what additional services could be provided to eliminate the bullying.  For example, it may be necessary to include increased supervision or clarify the reporting process for the student.  If the bullying also resulted in absenteeism, the IEP team should consider positive behavioral interventions and supports to encourage attendance.  And yes, that is true even if the student’s verification category is different from the new issues present because of the bullying.

Please share this blog post with your special education staff and remind them of the implications bullying may have on a district’s response to students with disabilities.  If you have any questions about special education, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler or Sara at (402) 804-8000, or send everyone an email at ksb@ksbschoollaw.com.

I’ll Be There For You: General Education Teachers’ Responsibilities for Special Education

“So no one told you life was gonna be this way . . . Your job’s a joke, you’re broke, your love life’s DOA.”  This one is for all you Gen X and Millennials out there.  Who can forget the iconic sitcom Friends (especially with the recent and unfortunate passing of Matthew Perry) and its memorable theme song by the Rembrandts?  Just as the theme song reminds the listener of the friends who will be there for you, we are here to remind general education teachers of their responsibility to be there to support special education students and students with disabilities.  One of the primary complaints we have heard lately from administrators is the lack of support for special education from the general education staff.  Many times general education teachers quip “that is a special education problem, not my problem.”  However, general education teachers are tasked with many legal obligations to students with disabilities similar to special education teachers.

For example, general education teachers have a responsibility to implement students’ behavior intervention plans (BIPs) and individualized education programs (IEPs).  This includes tracking program accommodations and also student refusals.  It is critical that school districts ensure general education staff have access to students’ IEPs and BIPs.  It is not uncommon to hear that general education staff were unaware of a student’s BIP or how to appropriately track the data.  District administration should review internal procedures to determine who is responsible for sharing students’ IEPs and BIPs with appropriate staff.  

General education teachers also have child find obligations if the District has reason to suspect a disability.  Red flags that should alert teachers to suspect a disability include: academic performance, behavior issues, attendance/truancy, and changes in student attitude.  It is common for general education teachers to simply forget about potential child find obligations when the child is advancing from grade to grade or the child is really smart.    

In addition to implementation and child find obligations, general education teachers may also be asked to serve on a student’s IEP team.  One regular education teacher must be in attendance at a student’s IEP meeting as a mandatory participant.  General education teachers are critical as IEP team members as they can speak to the student’s placement and progress in the general education classroom.  An area of compliance we see schools struggle with is inappropriately excusing the general education teacher from the IEP team meeting. (ex. General education teacher is the volleyball coach and only attends a portion of the meeting until volleyball practice starts.)  The IDEA provides very specific rules for excusing IEP team members.  In general, the same general education teacher must be present for the entire meeting.  A team member may be excused if parent and public agency agree, in writing, that the attendance of the member is not necessary because the member’s area is not being modified or discussed and the member submits, in writing, input into the development of the IEP prior to the meeting.  34 CFR 300.321 (e). 

Both Nebraska and South Dakota schools have seen increased state special education complaints over the last year.  In order to combat these complaints, we recommend school administrators consider professional development trainings that discuss topics such as “Special Education for General Education Teachers.”  We have several staff in-services prepared regarding these topics and are happy to schedule an in-service with your District.  To reach out to schedule an in-service or ask any questions related to special education, do not hesitate to contact us all at 402-804-8000 or by sending all of us an email at ksb@ksbschoollaw.com.

What’s Trending Now? OCR Affirms the Importance of Legally Sufficient Title IX Grievance Procedures

Lawyers, especially the KSB lawyers school lawyers, are a strange group of people.  (Have you read our bios? Strange group of people . . .)  Nothing brings us more joy than exciting legal updates in the school law world.  For months, we have been waiting with bated breath for the new Title IX regulations to be released.  The Department of Education indicated the new regulations would be released this month, which is looking extremely doubtful. So, good news!  This blog post is not a deep dive into the new Title IX regulations.  Instead, this is a reminder that OCR is still engaged in compliance reviews of K-12 schools under the current Title IX regulations.  

In a recent OCR compliance review involving a school district in Connecticut, OCR determined the District violated Title IX by failing to ensure adequate Title IX coordination, failing to adopt and publish grievance procedures that complied with Title IX, and failed to respond equitably to complaints.  Here, the District provided OCR with its Title IX policies and procedures which included four separate grievance procedures.  Each grievance procedure had a different primary contact and methodology for resolving complaints.  When conducting the investigation, OCR was unable to find the “administrative regulations” referenced in the policies on the District’s website.

As part of its analysis, OCR determined the District’s Title IX grievance procedures were not compliant with the Title IX regulation.  In particular, the District did not provide notice to employees and students about the Title IX grievance procedures.  OCR determined the use of multiple procedures did not provide sufficient notice to complainants and also likely caused confusion if an employee or student attempted to determine which procedure to utilize.  Specifically, “OCR found that the procedures in place were so intertwined that it made it difficult for covered individuals, as well as District staff, to understand relevant rights and the District’s obligations under Title IX.”   

What should you add to your homework list?  Review your Title IX policy.  We strongly recommend having only one Title IX policy that covers both employees and students.  Additionally, review your website and ensure the Title IX policy is easily accessible and that the Title IX coordinator is listed.  

If your Title IX policy is not legally sufficient, we have a Title IX package available for purchase which includes a Title IX policy, all necessary forms, and a flow chart.  Please reach out if your District has any questions about the current Title IX regs or the proposed regs, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at 402-804-8000 or by sending all of us an email at ksb@ksbschoollaw.com.

23-24 Quarterly Webinars Offered by KSB

After some delay, and waiting to see what the Federal Government was going to do, we’ve decided to go forward with our Quarterly Webinar Series.  As in the past these will be from 9:00 AM to 12:00 PM central. We will also record the webinars and make them available with the materials if you are not able to join us live.  More details on the dates and topics are below.  You can use THIS LINK to register. 

November 28, 2023

Where is Tom Osborne When We Need Him? Mastering the Option (Enrollment)

For years, the Huskers stymied opponents with the deceptively simple triple option.  A well practiced quarterback can read a defense and make strategic decisions as a play unfolds.  Nebraska’s option enrollment program can be similarly deceptive in that the law seems simple, but can be complex when it is actually applied.  The Unicameral’s most recent changes to the option enrollment statutes have created even more subtle complexity that has caused confusion within the education community.  This webinar will explain the option enrollment statutes with the speed of Ahman Green, the tenacity of Cory Schlesinger and the dazzle of Tommy Frasier.

*Participants will receive access to updated option enrollment forms, including capacity resolutions, revised option policies and response letters.

January 17, 2024

What To Do While Counting Down from 504: Strategies to Comply Now to Get Ready to Comply Later

The training that Nebraska schools have most frequently requested for the 2023-24 school year is a review of the requirements of Section 504 of the Rehabilitation Act.  This is perfectly understandable, given the explosion of parent requests for accommodations and the crisis of poor student mental health.  We all anxiously await the release of the revised 504 regulations from the US Department of Education.  However, schools that have solid compliance processes applying the current regulations will be miles ahead in getting ready to comply with the new regs.  This quarterly webinar will provide three hours of practical advice on how to comply with Section 504 using lots of real world examples, including advice on how to best utilize the new 504 forms from SRS.  

March 20 , 2024

Knock knock 

Who's there? 

FERPA 

FERPA who? 

Sorry, I can't tell you that.... 

The Federal Education Rights and Privacy Act has been in effect since the 1970’s – a decade known for hippies, protests, drug use and litigation in schools.  In other words, the more things change, the more things stay the same.  However, FERPA predates email, social media, apps, and other technology common in public education today. KSB’s attorneys will explain how schools can balance FERPA’s requirements with the complex information demands of today.  We’ll detail FERPA considerations when districts interact with law enforcement, use video and security recordings in the discipline context, and operate in an era where parents and other stakeholders expect instant information. 

June 25, 2024

Dude, Where are My Regulations? Unpacking the Current (and New?) Title IX Regulations

All of the legal and political experts insist that the new [new] Title IX regulations will be released before the end of the 2023-24 school year.  These new regulations forecast significant changes to the definition of sex harassment and the process that schools must follow to investigate allegations of sex harassment.  They will also likely include issues surrounding LGBQTI+ students, including students who want to participate in sports and other extracurricular activities.  Every member of a school district's Title IX team should plan on attending this session.    

36 Days Until Thanksgiving! A Refresher on Calculating FMLA Leave During A Holiday Break

Is it too early to start thinking of Christmas break?  We know many administrators in September were thinking “wake me up when September ends.”  (Bonus points for all readers who sang the Green Day song there.)  With the school year in full swing, according to our calculations, the next major holiday break is a mere 36 days away.  For those in our office who love football (everyone) and enjoy a mighty helping of Thanksgiving delights (The turkey! The stuffing! The pie!), we already have the holidays on our minds.  With holiday breaks comes the telephone calls and emails asking for clarification on calculating FMLA leave.  Fortunately for all you FMLA nerds, the DOL blessed us with a recent opinion letter in May 2023 regarding this very topic.

Under the FMLA, when a holiday falls during a week in which the employee is taking a full week of FMLA leave, the entire week is counted towards the individual’s FMLA leave usage.  For example, if you have a staff member who has a baby on November 16 and requests FMLA leave for the birth of the child, the whole week of November 20 through the 24th counts as FMLA leave.  The school should count one full week instead of 2/5 of a week.  It is irrelevant that the district does not have school November 22, 23, and 24.  

What about a staff member who requests intermittent FMLA leave?  The DOL confirmed its previous stance stating:   

Under the FMLA, the employee’s normal workweek is the basis of the employee’s leave entitlement. If a holiday occurs during an employee’s workweek, and the employee works for part of the week and uses FMLA leave for part of the week, the holiday does not reduce the amount of the employee’s FMLA leave entitlement unless the employee was required to report for work on the holiday. Therefore, if the employee was not expected or scheduled to work on the holiday, the fraction of the workweek of leave used would be the amount of FMLA leave taken (which would not include the holiday) divided by the total workweek (which would include the holiday).

To illustrate, let’s assume a school has a custodian who needs to undergo scheduled cancer treatments.  The custodian utilizes intermittent FMLA leave to do so.  The custodian works November 20 and 21 and plans to utilize intermittent FMLA leave on November 22 and 24.  This employee normally works a five day week and is required to work November 22 and 24 normally.  Because he takes two days of FMLA leave and Thanksgiving is part of the week, the school would count the employee as using 2/5 of a workweek as FMLA leave.   

In the opinion letter, the DOL reiterates its policy stance on the treatment of intermittent leave by explaining:

Holidays regularly occur during normal workweeks and should be counted when they fall within weekly blocks of leave. On the other hand, the Department believes that where leave is taken in less than a full workweek, the employee’s FMLA leave entitlement should only be diminished by the amount of leave actually taken.
More guidance on the calculation of FMLA leave usage is available from the DOL here. Additionally, we drafted a whole series on the FMLA which is available starting with this post.  If you have any questions about calculating leave under the FMLA or the use of intermittent leave, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or send us all an email at ksb@ksbschoollaw.com. 

Let’s Make It Spicy! Book Bans and School Policy

The CAVE (Citizens Against Virtually Everything) are at it again!  Just when you might be questioning what to do with all your free time as a school administrator . . . what wait?  You can now add “address angry complaints about library books” to your “to do” list.  As you have probably noticed on social media and on the news, there are countless articles and buzz surrounding library and curriculum review policies.  (For South Dakota examples, check out news articles here and here.)  It’s a difficult subject to avoid, even for business managers who heard about the subject last week at the South Dakota Association of Business Managers Fall Conference.   It also has been in the news legislatively, as the South Dakota Senate killed a book access bill earlier this year.  We anticipate a similar bill will be brought this upcoming legislative session.  What does this mean for our schools?

As of now, the law does not require a review of library materials policy.  However, with the political pressure, districts may find it helpful to adopt a policy which lays out how the materials are selected and how materials may be challenged by concerned individuals and under which circumstances individuals may bring such challenges  (Homework time!).  Now is a great time for districts to review their complaint policies and also their public input policy for school board meetings as both of those policies may be implicated by current challenges to library materials.  Also, we recommend contacting your school attorney to discuss constitutional and open meetings considerations prior to modifying any policy. 

If your school is interested in a selection and review of library materials policy, KSB has drafted a sample policy for purchase.  If you are a South Dakota policy subscriber, this policy was sent out as part of the annual updates in June 2023.  Additionally, KSB School Law offers a South Dakota policy service for school districts.  Our policies are drafted to be short, clear, and useful.  Plus, any policy-related questions are free of charge, even if you call us in five years for advice or changes to a policy.  

If you have any questions about the legality of library material review policies or would like to purchase the sample policy or policy service, please email ksb@ksbschoollaw.com or call us at (402) 804-8000.

Weighing Your Options! Legal Changes to Option Enrollment

With schools all in session and the excitement of fall (pumpkins, high school athletics, cooler weather, Husker football?), many school administrators have likely already put the last Unicameral session out of their minds.  As these blog posts often do, we are here to give you homework (insert collective groans and boos)!  LB 705 was signed by the Governor on June 1, 2023.  Ultimately, LB 705 made a few substantive changes to the option enrollment laws we want to remind you about today. 

If you are a KSB Policy Service Subscriber, you received a memo from us yesterday explaining the changes and all of the new legal and reporting requirements.  We also sent an updated sample resolution and a sample denial letter to use to supplement NDE’s option application form.  If your district is not a KSB Policy Service Subscriber, let us know if you would like to purchase the additional information and forms.

Special Education Applications.  Special education option applications must be reviewed on a case-by-case basis.  School districts can no longer declare that the district’s entire special education program is at capacity or set capacity numbers for their special education programs.  This change has been in effect since September 2, 2023.  

If an option application indicates that a student has an individualized education plan (IEP) or has been diagnosed with a disability as defined under your  the director of special education services must review the students’s IEP.  The special education director must determine if the school district has the capacity to provide the student with their services and accommodations.  If you deny the application, you must identify the programs, services, and accommodations you cannot provide.   

Programmatic Capacity.  If the school board wants to declare a program, class, or school unavailable (i.e., “closed” for all options students) for the following school year, the board must pass a resolution with such a declaration prior to October 15th of the previous school year, making the effective deadline October 14.  This cannot include your special education program.  We refer to this as “Programmatic Capacity,” where you declare a program, class, or building closed and unavailable to any option students.  

Numeric Capacity.  You can still set specific capacity numbers for any “program, class, grade level, or school building” and can set those capacities later in the school year by resolution.  The only requirement to act prior to October 15 is for declaring programs, classes, or buildings closed.  As an example, you don’t have to decide by October 14 whether the capacity of your third grade classrooms is 20 students or 22 students or 26 students or whatever.  As there is no specific statutory deadline for those determinations, your board can make those numeric capacity decisions later in the school year, if it prefers.

Other Standards.  The law has always allowed the board to adopt standards beyond capacity.  You can still consider and use other standards your board may have implemented in the past.  Make sure to apply them without consideration of a student’s disability, prior discipline history, mastery of English, or other extracurricular abilities.  

Building Capacity Reporting.  Schools must annually establish, publish, and report the capacity for each school building under the district's control “according to procedures, criteria, and deadlines established by the Nebraska Department of Education.”  This requirement specifically references “building” capacity.  You are not required to publish or report other capacities you set.  

Denied Application Reporting.  Also, beginning on July 1, 2024, each school will have to report to NDE information related to rejected applications.    NDE has indicated that it will require school districts to report (1) the number of option applications denied; (2) an explanation of each denial; and (3) if the applicant stated there was an IEP or student has been diagnosed with a disability, whether the district provided the application the specific reason for denial.  NDE must also collect specific information from learning community schools.  After discussions with NDE, they will do some form of data collection for this information in 2024 prior to the July 1 deadline, so you should be aggregating this now for all applications you deny.   

If you are a KSB policy subscriber, we updated policy 5004 in June to reflect these changes, and we sent out the memo, sample resolution, and sample denial letter yesterday.  If you have any questions about option enrollment or would like a copy of the resolution, please email ksb@ksbschoollaw.com or call us at (402) 804-8000.

Do You Want the Good News or the Bad News First? Substantial Changes May Be Coming to the FLSA

As school lawyers, we LOVE to prattle on about the Fair Labor Standards Act.  Don’t believe us?  Check out here, here, here, and here for a PTSD flashback to prior blog posts.  For those of you who have been around here long enough (“long enough” defined as 2019), you might remember the hubbub about the Obama Administration’s new overtime rules which proposed to require employers pay at least $913 per week in order to treat an employee as exempt for overtime purposes.  This proposal was kiboshed when a Texas judge in the Fifth Circuit blocked the rule.  Under the Trump Administration, the minimum salary for exemptions was increased to $684 per week from $455, which is the current salary basis test today. 

Fear not, politics are the gift that keeps on giving for school lawyers!  The Biden Administration announced a notice of proposed rulemaking that would “restore and extend overtime protections to 3.6 million salaried workers.”  The proposed change would increase the salary basis test to $1,059 per week, the equivalent of $55,068 per year.  Currently, the proposed rule is in the 60 day comment period which closes November 7, 2023.  If the rule is adopted, we anticipate there will be court challenges to the increase, similar to the Obama Administration era.  The bad news?  This change will certainly result in schools either increasing salaries for individuals who currently qualify as exempt or moving those individuals to an hourly pay rate with overtime at time and a half.   

You might be wondering, what is the good news?  The good news is the rest of the test to determine if an employee is exempt for purposes of overtime remains the same: 1) the employee must be paid a salary, 2) the amount of salary paid must meet the minimum specified amount (currently $684 per week), and 3) the employee’s job duties must primarily involve executive, administrative, professional, or computer employee duties as defined by the duties test.  Reminder, you cannot simply pay someone a salary to avoid the overtime rules.  The employer bears the burden of correctly classifying an employee as exempt under the FLSA.  (Is now a good time to recommend a FLSA audit?  Look at whose smiling face you can have visit your school!)  These new regs do continue to treat teachers and community member coaches as  exempt under the FLSA, even if their salary does not meet the new threshold.  This is a longstanding tradition in the FLSA that would really complicate things like collective bargaining if changed.  Thankfully, that isn’t part of the proposal, so if the proposed changes are implemented it would mostly affect classified staff  

As always, we will send out another blog post when the DOL finalizes the rule.  If your District has any questions about the FLSA or these proposed regulations, please feel free to contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at 402-804-8000 or by sending all of us an email at ksb@ksbschoollaw.com.

P.S. For all the business officials and HR people reading, the U.S. Citizenship and Immigration Services released an updated I-9 Form on August 1, 2023.  You can use old I-9 forms until October 31, 2023 but starting on November 1, 2023, the new forms should be used for new hires.  One of the changes on the form allows remote examination via E-verify.

Because I Got High: Medical Marijuana and the Workplace

Who can forget the year 2020?  We had the COVID-19 pandemic, the Harvey Weinstein verdict, the death of NBA star Kobe Bryant, and oh yea - in South Dakota, we had Initiated Measure 26 pass which legalized medical cannabis.  (Talk about a lot of big things happening!)  Initiated Measure 26 became codified in state law at SDCL 35-20G.  This new law impacted school districts in the state as districts passed policies addressing the use of medical marijuana, both for students and staff.  One concern we regularly hear in our office relates to the use of medical marijuana by staff.  Legally, what, if anything, can the school district regulate?  Here are the top questions we receive.

Does a staff member have to disclose to administration if the staff member has a medical marijuana card?

A school may ask on an employment application if the staff member has a medical marijuana card.  If the employee does not answer truthfully, that can be grounds for termination.  However, South Dakota law states: “A cardholder may not be refused enrollment by a school or a lease by a landlord, or otherwise be penalized by a school or landlord solely for the person's status as a cardholder, unless failing to do so would violate federal law or regulations or cause the school or landlord to lose a monetary or licensing-related benefit under federal law or regulation.”  (emphasis added). 

What can an administrator do if the administrator suspects a school employee is high or impaired at school?

If an administrator has reason to suspect a staff member is high or intoxicated, the administrator can request the staff member report to a clinic or hospital to receive a drug test.  If the staff member refuses such a request, the administrator can discipline the staff member for insubordination.

Should the district have a provision in the staff handbook regarding medical marijuana?

Yes, districts should review their staff handbooks and consider including a provision regarding medical marijuana.

Is medical marijuana a reasonable accommodation under the ADAAA?

Because medical marijuana is an illegal drug under federal law, there is no duty to provide an accommodation as the ADAAA does not apply. 

What about safety sensitive positions? (Such as those driving students, bus drivers, etc.)

For those individuals such as bus drivers, the U.S. Department of Transportation's rules apply regarding drug testing.  Those individuals must pass drug tests regardless of the South Dakota law allowing medical marijuana. 

If you have questions about employment law, please contact us at (402) 804-8000 or send everyone an email at ksb@ksbschoollaw.com.

Let’s Get It Straight, Rules are Great(!)? An Overview of Recent Rule 51 Compliance Considerations

In recent years, we have noticed an uptick in Rule 51 complaints against school districts.  As a refresher, Rule 51 is the administrative code for special education enforced by the Nebraska Department of Education.  This summer, our awesome law clerk Amanda went through all the recent final investigative reports posted on NDE’s website and analyzed the data.  In general, the percent of investigations requiring corrective action has increased substantially from the 2020-2021 school year through the 2022-2023 school year.  From our analysis, we noticed several interesting trends and compliance areas schools should review.  

First, prior written notices continue to be an invaluable tool for special education teachers, administrators, and lawyers.  In 2022-2023, 37% of the number of issues flagged in the Procedural Safeguards section of Rule 51 (section 009) related to prior written notice.  The majority of the investigative reports surrounding this subsection were geared towards instances when a PWN should have been provided and not about the actual substance of the PWN.  As a refresher, the NDE tip sheet provides that a district must send a PWN when it “proposes to initiate or change the identification, evaluation, or educational placement of [a] child; proposes to initiate or change the provision of a free, appropriate public education (FAPE to [a] child; refuses to initiate or change the identification, evaluation, or educational placement of [a] child; or refuses to initiate or change the provision of FAPE to [a] child.”  The investigative reports provided instances where PWNs were not provided as legally required such as: a district refusing to provide transportation, when amendments to the IEP occur, when there is a change of placement, including a change of placement relating to student discipline, and when the district denies a parent request for services such as additional paraprofessional support or therapy.   

In general, the IEP section of Rule 51 (section 007) represents the area with the largest investigative draw.  Specifically, 51-007.07, IEP development, had the highest area of corrective actions required.  Of those reports, six involved corrective action regarding the supplementary aids/modifications provided in the IEP.  What does this mean for schools?  IEP teams must include the projected date, frequency, location, and duration in the program modifications and accommodations sections of the IEP.  Because of the current SRS programming, this means you will likely need to create an Excel spreadsheet or Google sheet to copy and paste into the IEP which includes the required data.  Simply listing “as needed” is not legally sufficient.  In addition to this focus area, schools should continue to focus on goal writing, baseline data, and measurement of goals. 

Another area of compliance under sections 007.02C and 007.02D is the accessibility of a student’s IEP to each “regular education teacher, special education teacher, related service provider, and other service provider who is responsible for its implementation.”  This includes informing the teacher of “his or her specific responsibilities related to implementing the child’s IEP.”  Schools must proactively ensure all teachers and service providers (including substitute teachers) receive and review a student’s IEP.  It is not legally sufficient to simply place a copy of the student’s IEP in each staff member’s mailbox.  We recommend reviewing your internal procedure for informing staff of IEP responsibilities.     

If you have questions about these issues or would like to schedule a special education training/PD session for your general education staff, please contact Karen, Steve, Bobby, Coady, Tyler, Sara, or Jordan, or send us all an email at ksb@ksbschoollaw.com.

Partial Enrollment, Whole Confusion: Partial Enrollment of Homeschool Kids in South Dakota

Two years ago, the South Dakota legislature enacted substantial changes to the way public schools handle students who choose to homeschool.  If you’re unaware of this, we hope you can make some room for us under that rock you’ve been living under as it must be a delightful place!

When the new rules were first implemented, many educators and school attorneys in the state discussed how there could be unforeseen consequences to these rules, and much of the focus surrounded how activity participation for homeschool students would play out.  While those questions have hardly subsided, recently we’ve been receiving more questions regarding homeschool students who qualify for special education services who wish to partially enroll in a public school. 

The Individuals with Disabilities Act requires states to pass regulations that comply with its requirements, which South Dakota has done in ARSD 24:05.  The Department of Education has taken the position that the IDEA and South Dakota’s regulations require only that public schools evaluate non-enrolled students in their district for special education and special education related services and make an offer of a free and appropriate public education.  However, the Department has stated that schools do not need to offer those services if the student does not enroll in the school district.  The Department’s guidance can be viewed here. 

So what happens when a student qualifies for services, and parents wish to enroll but only partially?  We would recommend schools reach out to their attorney on the subject, but remember that a “free and appropriate public education” is not a la carte.  Think of a school that has made an offer of FAPE to a student subsisting of services A, B, and C.  However, parents only wish to receive service C and enroll partially.  In this scenario, schools should analyze whether complying with such a request would be denying that student FAPE under the IDEA (even if it’s what parents request – remember schools’ obligation under the IDEA is to provide the student with FAPE, not to give the student what the parents select).  Although we work closely with the Department of Education on special education matters, schools should be cautious about placing too much weight on informal statements from the Department.  These statements are not binding against  a parent in a due process hearing or in federal court. 

If you are interested in hearing more about this subject, KSB recently recorded a webinar touching on the subject as well as other enrollment issues.  We have received so many questions about partial enrollment of special education students, we have decided to allow all of our blog subscribers to access this webinar for free here! 

If you are interested in more KSB webinars, you can sign up for our monthly series or special education series here as well.  If you have specific questions about partial enrollment issues or about any other legal issue that your school district is facing, feel free to reach out to any of the KSB attorneys – Tyler, Sara, Karen, Steve, Bobby, Coady or Jordan. 

I Thought We Were Done with Executive Orders after COVID! Nah…

Yesterday, Governor Pillen signed Executive Order 23-16, establishing the “Women’s Bill of Rights.”  It’s pretty short; you can read the whole thing here.  The EO picks up where LB 575 left off, defining “sex”, “female” and “male” in the context of gender identity.  (As a reminder, LB 575 is a legislative bill that was introduced last January and that seeks to adopt the Sports and Spaces Act, but has yet to pass.)  More on that shortly.  With conflicting federal court opinions, new Title IX regulations on the way, and everything else out there, about the only missing ingredient in this confusing swirl was a gubernatorial executive order.  Well, here we are.

As school lawyers, we strive to cut through the politics surrounding these (and other) issues and instead focus on the anticipated legal impact of the specific actions being taken.  In that vein, what is notable about this EO is not so much what it says, but what it doesn’t.  Despite the subtitle (“Establishing a Women’s Bill of Rights”), the EO doesn’t lay out any new rights that it creates in favor of women.  Despite some of the press surrounding it, the EO does not explicitly direct K-12 schools to take any specific actions regarding interscholastic athletics or sex-segregated facilities like bathrooms and locker rooms.  And, as most of you are probably already thinking, many (all?) of those issues are likely governed by the federal Title IX statute and regulations and the court decisions interpreting them.  So, candidly, we’re still considering what the legal impact of the EO’s brief directives will be for K-12 school districts, if any.  So, what does the EO actually say?

It requires “all state agencies, boards, and commissions” to adhere to the definitions of male and female based on reproductive organs at birth when making rules and adjudicating cases.  The plain reading of the EO means that requirement applies only to state-level entities, not political subdivisions like schools.   

The EO does not explicitly dictate that schools must handle things like athletics, locker rooms, or bathrooms in any particular way.  By the same token, the EO does not provide schools with any sort of legal protection if they are sued by students and families over these issues.  The only section that specifically mentions schools says that for purposes of collecting vital statistics to comply with antidiscrimination laws, schools and other entities have to define individuals as “male” or “female” based on reproductive organs assigned at birth.  It’s not clear what vital statistics data means in this context or how that would change the application of Title IX or any other laws with their own definitions and requirements.  

Our advice to schools remains unchanged: unless and until action is required, we believe the best legal approach is to work with students and families who are facing transgender-related issues on an individual basis.  Passing an explicit policy one way or the other isn’t legally required.  At  best, you’ll make the news; at worst, you’ll find your school in litigation.  This EO doesn’t help clarify much, nor has it changed our thinking--at least not yet.

For now, we recommend sitting tight, at least until it’s clearer what this EO was intended to do and how it will be interpreted.  If you have any questions about the EO or any other issues relating to gender identity and the law, let us know!  You can always contact Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or  by sending all of us an email at ksb@ksbschoollaw.com.

The Blog Post You Wait All Year For - The KSB Husker Football Predictions are Here

We know you have all been waiting to read our spicy (and sometimes offensive . . . looking at you Jordan) Husker football predictions.  For those of you who are new to KSB or don’t recall last year’s post, it was determined that Steve is likely The Most Amazing Man Alive Jesus Nostradamus or should be offering services as a fortune teller based on his scarily accurate predictions.  Check out last year’s post here.

KAREN’S PREDICTION:

Let’s be honest. Nebraska football is like a weird aunt in your family who used to be married to a nice, but boring guy. She ditched him because she thought she could do better, but instead she has brought one weird dude after another to your family Christmas. Remember how she started out with that arrogant loser from back East? Or the angry guy who got into a fight with grandma and kicked her cat? What about the year she was dating a guy the same age as grandpa? Then last year was the worst – she showed up with the party animal she knew from her college days who got drunk, spiked the eggnog and then left before we were done opening presents. This year she is bringing someone who seems normal, but the night is young and who knows what is going to happen? In the end, we all know that the real problem is not the boyfriends. It’s your aunt. She hasn’t aged well and definitely needs some therapy to address her internal issues. Until then, no new boyfriend is going to work out well.

And friends, that sums up my feelings about Matt Rhule and our Nebraska Cornhusker football team.

Could the 3-3-5 defense work in the B1G? Maybe, if we had an athletic linebacker corps. But we only have two returning players in this position group (and last year we had one of the worst passing defenses in the league).

Is Jeff Simms talented enough to lead the Huskers at quarterback? Probably. But just who is going to step in to fill the QB slot when Simms inevitably is injured on an RPO? Chubba Purdy, God love him, is going to get thrown into the fire at some point this year and we all remember how that went in 2022.

Finally, is the offensive line REALLY going to be able to win the battle in the trenches? Come on, folks, let’s be real. I love the kids who will likely be starting (doesn’t Teddy Prochaska seem like a big lovable puppy who hasn’t quite grown into the size of his paws yet?) but Nebraska has neglected this crucial area of recruiting for at least a decade.

Week by week will look like this:

Minnesota: Loss (even a blue moon won’t help us here)

Colorado: Win (please sweet Jesus do NOT let us lose to Neon Deion)

Northern Illinois: Win (I’m not THAT down on Rhule’s squad)

Louisiana Tech: Win (see above, but don’t get cocky, Huskers)

Michigan: Loss (pray for the KSB faithful with two snarky Wolverines in our midst)

Illinois: Loss (this is where stuff gets real)

Northwestern: Win (at least one family member is more messed up than us)

Purdue: Win (this is a toss up, but Memorial stadium will make the difference)

Michigan State: Loss (see above, only we are on the road)

Maryland: Win (c’mon, their mascot is a TURTLE for God’s sake)

Wisconsin: Loss (Mike Leach is gonna be laughing from the beyond unless I’m wrong about our talent with the 3-3-5, which is designed to deal with modern offenses like the Air Raid)

Iowa: Loss (Hawkeyes will be desperate to save Brian Ferentz’s job and hungry to avenge last year’s loss)

That’s it. The good news is that Nebraska will get to 6 wins and make a Bowl game for the first time in eight years. The bad news is it might be in Detroit.

And maybe, just maybe, after spending a Christmas away from her family in the frozen wasteland that is Michigan, Aunt Nebraska will come home, make a new year’s resolution to get herself figured out, and make this new relationship work. (But don’t count on it; there are a couple of recent divorcees from California that are coming to Christmas next year and that might make things even weirder……)

STEVE’S PREDICTION:

Before we get to 2023, can we review your 2022 predictions? Sure.

Did you predict that the Huskers would go 4-8? I sure did.

Did you tell us Scott Frost would be fired midseason? Yep.

Did you tell us that the Huskers would sh*t the bed at every opportunity? You know I did.

And did they? You know they did.

Did you really predict that Matt Rhule would be our next head coach before last season even started? Yes indeed.

Wait a minute. Wasn’t Coach Rhule employed as an NFL coach at the time you made the prediction? Yes. Yes he was.

Did Blue, in fact, Go? You know it. The second straight year in the playoff!

Is it true that everyone at KSB called you Pimp Daddy Steve after the Michigan-Nebraska game? Daddy doesn’t kiss and tell.

You are amazing! Will you marry me? Wow. Even more disappointment for you Husker fans. I married the Luckiest Girl EverTM last season! On to 2023 . . .

I did get one thing wrong last year. I told you the Husker fans would be drinking the Kool-Aid this season. Of course, they are instead drinking the Rhule-Aid. My bad. I admit - it is tempting to take a sip. On paper, Coach Rhule seems to be the most qualified coach that Nebraska has employed in a long time. True, he stumbled in the NFL, but that NFL experience surely made him a better coach. And he’s turned around not one but two college programs in his previous stops. He took two and one-win teams and turned them into 10 and 11 game winners. Remember the last time the Huskers won 11 games? Yeah, me neither, but I’m willing to bet it was before I had all this blond hair. The Husker team he has inherited isn’t nearly as bad as the Temple and Baylor teams he inherited. However, the Huskers are trying to reverse a long streak of mediocrity and stench. Under Scott Frost, the Huskers were 16-31. They had a 10-26 record against Big Ten opponents. And they were 0-14 against ranked teams. That. Is. Terrible. On the plus side, the Huskers’ schedule this season is softer than my midsection. So what do the experts have to say?

Well, in 2021, the oddsmakers set the over/under on Husker wins this year at 6. That was EASY money. Last season, Vegas set the over/under at 7.5 regular season wins. It was funny then. It’s even funnier now. How could the experts have been so obviously wrong? But this year, I’m seeing the number set at 6.5 wins. I have to be honest - I don’t have a great feel for this year’s Husker team, but that number did not make me laugh out loud. Perhaps that is good news for the Huskers and the “experts” are getting closer to predicting the correct win total? Let’s take a look.

The Huskers open the 2023 season with a loss to a bunch of Boat Rowers. But they bounce back with three straight wins against Colorado, Northern Illinois, and Louisiana Tech. Oh, 3-1, and the Rhule-Aid drinkers will be hootin’ and hollerin’! But wait. It’s time for the game we’ve all been waiting for - the Michigan game. The recently reinstated Jim Harbaugh is bringing the best damn team in the Big Ten to Lincoln, Nebraska. It’s not going to be pretty. But don’t worry. Coach Harbaugh will soften your loss with some free cheeseburgers (but you gotta promise not to tell the NCAA). You then hit the stretch of the schedule that will make or break the Huskers season. Illinois. Northwestern. Purdue. Michigan State. Maryland. Once upon a time, Nebraska would have demolished these teams. Heck, just seven years ago they probably would have beaten them all. I predict they go 3-2 in this stretch, bringing their record to 6-4 headed into the final two games. That leaves the two most difficult games on the schedule for me to predict. The Huskers travel to Camp Randall Stadium to face the Wisconsin Badgers who also have a hot new coach of their own. The Huskers put up a valiant effort, but ultimately fall short. They then head home to face Iowa. I wouldn’t mind seeing a Husker victory. I mean, it’s Iowa and, let’s face it, the last good thing to come out of Iowa was Bob Feller. The last five matchups with them have been decided by one score or less. And last year, the Huskers finally managed to pull out a win against Iowa and end a seven-game losing streak against them. Unfortunately for Husker fans, the Hawkeyes, led by former Wolverine quarterback Cade McNamara, exact revenge for last year’s loss and pull out a victory at Memorial Stadium. Final record: 6-6. That’s right folks; you better take the unders again this year! But at least you’re bowl eligible!

BOBBY’S PREDICTION:

It looks like most of my colleagues are going to print money by fading Nebraska’s regular season win total in Vegas (currently over/under 6.5 wins over 12 games).

Maybe they can get some Iowa players to put the bets in for them.

Unfortunately, my gut tells me my colleagues are probably right. There are just so many variables with this team and this schedule. Many of Nebraska’s games are against teams with new coaches and/or coordinators. Watching Kirk Ferentz fire his son will be amusing, too. Normally we should be thrilled about a relatively weak schedule against so many other teams with big variables, but we’re one of them.

If you accept the objective fact that Frost was the worst coach in program history (on and off the field), you could be more optimistic. A competent coach makes a bowl game last year, and we return a lot of starts on both sides of the ball. Plus if we’re all honest, the B1G West is pretty bad. But this year will be marred by Frost’s complete failure to identify the right talent, recruit it, and develop it. We’re incredibly thin at critical positions (DL, WR, OL, QB). I’m buying what Rhule is selling, but he just won’t have the bought-in, developed depth this year.

Minnesota: L. On the road, primetime game, against a bald dweeb who has a pretty solid program established. They’ve started slow before, but it’s just too soon, kinda like Steve’s parole.

Colorado: W. !*#& them. Both teams are rebuilding, but if the mercenary style works in college football for Neon, it’ll be the first time. I don’t buy it. I wonder if his Louis Vuitton cowboy hat comes with a free belt.

NIU and LaTech: W and W. One thing I feel better about with Rhule is games like this. I expect a fast start and well-prepped team, because he’ll want to get lots of guys reps, avoid young transfers, and won’t have letdowns in his first 2 home games.

Michigan: L. I’m sure Harbaugh is pissed after being jilted by the NFL and wetting his khakis over the 3-game suspension. But this team will be tough, because Jim is still auditioning for that NFL job next year.

Illinois: L. I don’t like it, but Bielema is a top-3 coach in this conference. He looks like your DrUncle, but he’s a solid coach. We'll be better disciplined, but they'll be more disciplined.

Northwestern: W. I think it was going to be a tough year for NW even with Fitz at the helm. I think Rhule will show progress as the season moves along.

Purdue: W. I have no clue what this team will look like after a complete identity shift from Brohm to Walters. As the source of many of our should-have-won games the last few years, I think we eek it out.

Michigan State: L. It’s possible Nick Saban is the only coach who still wins after making $10 million a year. Jimbo and Mel Tucker filled their diapers after big paydays, but I think Mel is a decent coach who will have a better year.

Maryland: L. They will get no preseason attention and sneak out 7ish wins. Nebraska will be one of them.

Wisconsin: L. I think this will be a close one, but they’re just better up front than we will be, and a mid-November win in Madison just isn’t going to happen.

Iowa: L. This one really pains me, but I think Iowa will take as much pleasure in us not making a bowl as we took last year keeping them out of the conference title game.

Overall: 5-7. I can see 3 other games we could win, and I'm betting the spreads will be a touchdown or less. But Rhule will need a full year to suck all the poison out of this snakebitten team.

SHARI’S PREDICTION:

I’ve lost a lot of interest in Husker football over the last couple of years. Let’s be honest, there hasn’t been that much to cheer about. We’ve been on the same cycle for how long now? Hire a coach, lots of hype, complete disappointment and a large payout to move onto the next coach. I think the Rhule era will be similar. I think the transfer portal and NIL have ruined college football. It’s hard to build team chemistry when one player doesn’t like a coach or isn’t getting enough playing time, they move on. With all that being said, I’m still a Husker fan and wish them the best. I will tailgate, go to a few games and hope for the best, while also cheering for the Fighting Irish! Here are my predictions: Minnesota - loss. Colorado - win. Northern Illinois - win. Louisiana Tech - win. Michigan - loss. Illinois - win. Northwestern - win. Purdue - win. Michigan State - loss. Maryland - loss. Wisconsin - loss. Iowa - win. We will end the season 7-5.

COADY’S PREDICTION:

I am guzzling the Rhule-Aid! I am genuinely enthusiastic about the beginning of the Rhule era and what a fresh start will bring our Cornhuskers. I acknowledge that good-feeling speeches do not a football team make. That being said, Coach Rhule couldn’t have struck each and every chord better since his hiring was announced. The proof is obviously in the pudding, but I have faith (without any evidence) that things are on the right track.

The tough thing with this year’s predictions, though, is that the team could be WAYYYYYY better and still such improvement may not show up in the Win-Loss column. Until Nebraska shows marked improvement in the trenches (which is a clear priority for Rhule), the rugged Big Ten is an inhospitable barren wasteland that is tough to survive. I am counting wins against Colorado, Northern Illinois, LaTech, and Northwestern. That’s it; that’s the list. I see sure losses against Michigan and Wisconsin. Every other game is a toss up in my opinion. I can literally talk myself into a 10-2 season, but see a 4-8 record as just as (or even more) likely. Still, I choose to be optimistic (‘cause this is supposed to be more fun than self-loathing, right?) and I will assume that the Huskers split games against Minnesota, Illinois, Purdue, Michigan State, Maryland, and [Tyler J. Coverdale’s] Iowa. Nebraska finishes 7-5 and the Era of Good Feelings Around Nebraska Football begins in earnest. Bring on the Gophers!!!

JORDAN’S PREDICTION:

As someone who has spent plenty of time on the golf course with Bobby, I know what it looks like to watch someone talented fail to live up to their potential. It's a feeling Nebraska fans are all too familiar with after watching Scott Frost pull the program deeper into mediocrity after empty promises of par-saving putt. And so, here we are, where it feels like the Huskers and their coach can only be graded on the generous curve of low expectations. Any performance demonstrating the most basic fundamentals through the fourth quarter (or even a modicum of pride) will be heralded as the first signs that Nebraska is “back”.

And that is the perfect environment for Matt Rhule to repair his reputation and restore his confidence after a tough stint in the NFL. His teams won’t have to be that good (and they won’t be), they’ll just have to be competitive (and they will be), and he’ll be able to stick around as long as he likes (until a real blue blood opens up). This long, just better than mediocre marriage will begin with a first season full of early, moral victories (Colorado, Northern Illinois, Louisiana Tech, and Illinois) before tapering off into hopeful losses, and ending with a fifth and final win at home against Iowa to get everyone excited to be disappointed again.

TYLER’S PREDICTION:

This was difficult for me to write. For the last three years, I have structured this post around a single joke. It’s a very good joke. It’s a joke about how the Huskers could not find a way to beat a school to the east despite that school had not yet discovered the forward pass or nepotism rules. A school that at one point made the mistake of admitting yours truly, thus unknowingly condemning me to a life of defending myself against this rabid pack of Husker fans that are my colleagues.

This task wasn’t terrible for the last few years, but only because of that one joke: “Nebraska hasn’t beaten Iowa since 2014.” It was a joke that kept me going. And then Brian Ferentz took that joy away at Kinnick Stadium on November 22, 2023. I’m sure there are other people to blame. But it’s more fun to blame him.

To my colleagues’ credit, they could have been much more insufferable than they were. Anyway, the joke is now dead, as should be Brian Ferentz’ career as an offensive coordinator, but alas he remains. I can’t imagine why. It’s odd that he has the same last name as the head coach though.

So what happens, now, Husker fans? Is that a light at the end of the 25 year tunnel, or just a freight train coming to bring you back to reality?

A little of column A, a little of column B. 6-6.

Wins: Colorado, Northern Illinois, Louisiana Tech, Northwestern, Purdue, and Maryland

Losses: Minnesota, Michigan, Illinois, Michigan State, Wisconsin, and Iowa (Please let me have this last one. I truly don’t care about any other game on this schedule).

SARA’S PREDICTION:

Forgive me football gods, for I have sinned. I have continued to root for, support, and be disillusioned by the Huskers for the last thirty-three years. As we approach another Husker football season, I continue to commit the ultimate sin of every Nebraskan - optimistically thinking this football season will be “the year” the Huskers catapult to the top of the ranks. With that said, I am going to take a less aggressive approach this year with my prediction. It is more likely Santa Claus will move his operations to Brazil than the Huskers having a winning record this year.

Even while Matt Rhule might be the proverbial savior for the Huskers, I am hedging my bets with a 4-8 record. I anticipate the following losses: Minnesota, Colorado, Michigan, Illinois, Purdue, Michigan State, Maryland, and Wisconsin. I am chalking up victories against Northern Illinois, Northwestern, Louisiana Tech, and Iowa. So fellow Husker fans, let’s crack a cold one, enjoy the camaraderie of crying together after another mediocre season, and continue to get our hopes up that the Scarlet and Cream will have a winning season next year.

MATT’S PREDICTION:

Well Well Well! Back at it again GO BIG RED! Let’s get into it. New Coach again and starting at Minnesota on a Thursday night, well that’s a loss. Nebraska is following RHULES and MINNESOTA IS ROWING BOATS, I’m giving the edge to Minnesota, so LOSS. 0-1! Next they play Colorado in Boulder, I feel like Shedeur Sanders will show up against the Huskers and throw for 300 and add a rushing TD. I do think it will be a tight one like 35-31 because of the lack of defenses showing up. LOSS! 0-2! They get Northern Illinois at home, which means another tough battle for the Huskers. I feel like Jeff Sims finally wakes up and rushes for 2 TD and throws for 2 TD's and pulls off their first win of the season. 1-2! They get LA Tech at home and we watch the Blackshirts struggle against a 3-9 team a year ago, but pull off another win, which gives them a streak of 2 wins. Now Michigan comes to town. I’m sorry Husker fans this won’t be close. They lose by 28 and Jeff Sims gets benched! 2-3! They leave and play Illinois in Champaign. Like most teams nowadays Illinois has a transfer at QB and probably isn’t very good, but against the Blackshirts he looks like a man amongst boys and throws for 300 and 3 TD’s. LOSS! 2-4! I feel like Husker players have been following the RHULES through 6 games and beat a dumpster fire Northwestern team! 3-4. Here we go again with a winning streak! JK! They lose to Purdue and Jeff Sims has 2 interceptions. 3-5! They travel up north for the next game and play Michigan State. You never know what you're getting from MS, other than the QB play will be bad. This is a toss up, but I have to go with a low scoring game and the Huskers somehow lose this one. 3-6! I think Tagovailoa has a breakout game against the Blackshirts. He throws for 350 and 4 TD’S. Loss 3-7! They go back up north and lose a close one (24-21) against the Badgers. 3-8! They come back home for their last game against the Hawkeyes and lose again. Rhule might be the answer, just not this year. 3-9!

ASHLEY’S PREDICTION:

Well this may be a Hail Mary prediction from me yet again, but I have faith that this season will be better than 4-8 (maybe just slightly better).

The Scott Frost era was definitely a disappointment to say the least and Husker fans are definitely looking for/hoping for that glimmer of hope that the Husker program will once again be restored (sooner than later). Will Rhule be the coach to bring this glimmer of hope to Husker fans? I sure hope so or they will be paying another hefty buyout, if not!

I predict Nebraska will go 5-7 this season (when I really wanted to predict 6-6)! Why 5-7? New coaches coaching in the Big 10, a new QB with 30 touchdowns and 23 picks in his college career, new tight-ends, new wide receivers and a new defensive scheme. I hope these boys (big and small) are ready to move! Last season I predicted 6-6 with Scott Frost and the Huskers went 4-8, so 5-7 for Matt Rhule’s 1st season as head coach could be promising (fingers crossed) and feels safe! I highly recommend watching the 3 episodes of “A Look N” on You tube for some Husker preseason hype, if you haven’t already watched it!

And just for the record, I posted my predictions 1st this season….not last! WINNING, even if I lose (again)!

Wins: Colorado, Louisiana Tech, Northern Illinois, Northwestern and Purdue

Losses: Illinois, Iowa, Minnesota, Michigan, Michigan State, Maryland, and Wisconsin

The Great Debates of Our Time

Pepsi v. Coke?  Hermione v. Ron?  Star Wars v. Star Trek?  Karen v. Bobby?  While there are many pop culture debates brewing online, the newest debate in the Nebraska education landscape is the impact of LB 753, the Opportunity Scholarship Act.  As a refresher, LB 753 was signed into law by Governor Pillan on May 30, 2023 and provides $25 million in tax credits to those who donate to a “scholarship granting organization.”  The “scholarship granting organization” will then distribute scholarships for students to attend private and parochial schools.  

Two organizations have formed during the debate of this bill: Support Our Schools Nebraska and Keep Kids First.  Currently, there is a petition circulating across the state seeking signatures to place the repeal of LB 753 on the ballot in November 2024.  Why does all this background information matter to school lawyers? (You might be thinking, “Because lawyers are boring, duh!”)  In fact, we have had several schools contact us for guidance about school employees who wish to  assist in the political process.  It is important for school districts to remind staff of the Nebraska law prohibiting use of public resources to support or oppose a ballot initiative.  

Section 49-14,101.01 provides the general statutory language for use of public resources in connection with the political process.  It specifically states: “A public official or public employee shall not use or authorize the use of personnel resources, property, or funds under his or her official care and control … for personal financial gain.”  The law goes on to prohibit public employees from using public resources for the purpose of campaigning for or against a ballot question.  The Nebraska Accountability and Disclosure Commission has expressed the opinion that: “A public…employee may express his or her position with regard to a ballot question [or candidate] and may even urge voters to vote for or against…provided that government personnel, resources, property or funds under that official's care and control are not used for that purpose, and provided further in the case of a public employee that he or she does not engage in such political activity during office hours or when otherwise engaged in the performance of his or her official duties.”  In addition to state law, Rule 27 provides that educators have an obligation to the public.  Specifically, “the educator shall not use institutional privileges for private gain or to promote political candidates, political issues, or partisan political activities.” 

What does this mean practically for schools?  School administrators should remind staff that they are prohibited from campaigning for or against one of the organizations involved in the debate surrounding LB 753 when it involves school resources or time.  To illustrate, here are a few examples.

Example #1: District teacher sends an email blast to all of his friends and co-workers using his school e-mail in support of signing the petition for Support Our Schools Nebraska.  This is a violation of state law and Rule 27.

Example #2: District teacher shares the Keep Kids First Facebook page on the teacher’s personal Facebook page.  The teacher does so during the school day.  This is a violation of state law and Rule 27.

Example #3: District administrator sends an email to all staff voicing her opinion about LB 753 and stating the action she wishes her staff to take.  This is a violation of state law and Rule 27.

There is a lot of political activity the school employees may be able to engage in—including advocating for or against political candidates or ballot initiatives—so long as the employee does not use school district resources to do so and does not do so on school time.  We believe that ensuring that all school employees are aware of these limitations will help avoid some of the negative consequences that can arise under the rules and laws discussed above.

If you have any questions about these or other issues, please reach out to Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or all of us at ksb@ksbschoollaw.com.

The 411 on FERPA Protections for Student Health Records

Ahhh, August.  The month filled with back-to-school happenings, county fairs, and the glorious return of Husker football.  As you prepare your staff for the upcoming school year, we recommend a review of the Family Educational Rights and Privacy Act (FERPA).  In April 2023, the U.S. Department of Education’s Student Privacy Policy Office produced two new guidance documents to educate schools on the privacy of student health records.  The guidance is available here and here.  While none of this guidance is new, the Department of Education noticed many schools were grappling with the nuances of student health records and also the confusion with HIPAA.  

As a quick overview, FERPA is a federal law that protects the privacy of students’ educational records and applies to school districts which receive any type of federal funding.  (Hint, this law applies to all K-12 public schools in Nebraska and South Dakota.)  Under this law, personally identifiable information from a student’s education record may not be disclosed without prior written consent from a parent unless an exception applies.  Parents are also given the opportunity to inspect and review educational records and amend educational records if information relating to the student is inaccurate.  Schools must notify parents of these rights annually.  If you are a KSB policy subscriber, this notice is provided in our student handbook.  To note, FERPA rights transfer to a student when the student turns 18.

One important distinction made by FERPA is the definition of “education records.”  Education records are defined as “records that are: (1) [d]irectly related to a student; and (2) [m]aintained by an educational agency or institution or by a party acting for the agency or institution.”  34 CFR 99.3.  Student health records, in some circumstances, may qualify as education records under FERPA.  For example, a health record created and maintained by a school nurse would be subject to FERPA.  However, information obtained through personal knowledge or observation is not an education record unless the school official uses the information to produce an education record.  

Additionally, FERPA and HIPAA are distinguishable.  Student health records that are considered education records under FERPA are excluded from the definition of protected health records under HIPAA.  In general, school districts are not HIPAA covered entities.  For more guidance on the application of HIPAA and FERPA to student records, the U.S. Department of Health and Human Services and U.S. Department of Education released a Q&A here.  We have experienced situations where school nurses are hesitant to share student health information due to HIPAA concerns.  As HIPAA is not applicable when records are kept for educational purposes, school nurses should consider FERPA exceptions which allow transmission of education records without parental consent in situations such as: disclosure to school officials who have a “legitimate educational interest” in the information, disclosure involving a health or safety emergency, and disclosure to comply with a subpoena.

Please reach out to any of us at ksb@ksbschoollaw.com or give us a call at 402-804-8000 to discuss any questions you may have about FERPA compliance.      

KSB Webinar Series 

As we gear up for school, the KSB crew has developed an exciting slate of webinars for this upcoming year.  For Nebraska clients, click here and South Dakota clients click here to review the options and topics for 2023-2024.

Half-Yearly Report Card: The Newest Legal Cases Impacting Schools

The year 2023 has been a wild ride thus far for both pop culture and school law. The first six months had Prince Harry’s tell-all memoir about the life of the royal family and the iconic Barbie movie just recently appeared in theaters; we can only imagine what the rest of 2023 will hold. Just as pop culture has been spicy the last six months, the courts have also provided endless fodder for school attorneys. Let’s break down the recent cases which impact schools, and what they mean for you.

303 Creative LLC. v. Elenis, 143 S. Ct. 2298 (2023).

This is a free speech case SCOTUS decided on June 30, 2023. The case involved a graphic designer in Colorado who sought an injunction to prevent Colorado from forcing her to create websites promoting weddings which defied her beliefs that marriage should be a union between a man and a woman. The Court held that the Free Speech Clause of the First Amendment prohibits Colorado from forcing the designer to create a message which the designer disagrees with. The Court specifically referenced cases involving government compelled speech such as Barnette (the pledge of allegiance case). The Court reiterated the protections outlined in the First Amendment such as the protection of an individual’s right to speak one’s mind, including on the internet. As stated by the Court, “Nor, in any event, do the First Amendment’s protections belong only to speakers whose motives the government finds worthy; its protections belong to all, including to speakers whose motives others may find misinformed or offensive.”

What does this mean for schools?

While this case was decided on a narrow exception, it is important to note schools need to make sure they are not limiting employee free speech. The Pickering-Connick Test still applies and says that the First Amendment protects an employee’s speech if the employee speaks 1) as a citizen, 2) on a matter of public concern, 3) and not pursuant to the employee’s "official duties,” unless the school can show that it’s need for efficient operation, harmony in the workplace, and effectiveness of the employee outweigh the employee’s rights.

Groff v. DeJoy, 143 S. Ct. 2279 (2023).

This is a Title VII case SCOTUS decided on June 29, 2023. A USPS mail carrier, Gerald Groff, who occasionally was required to deliver packages on Sundays due to an Amazon fulfillment contract with USPS, argued that Sunday should be devoted to worship. He sued under Title VII of the Civil Rights Act of 1964 after he received discipline by USPS for failing to work on Sundays which resulted in his ultimate resignation. In general, Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in an undue hardship on the employer. SCOTUS held that to show an undue hardship, Title VII requires the employer to provide that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business. The Court did not define what “substantial costs'' look like. With this decision, the Court ultimately increased the burden employer’s must show to deny a request for a religious accommodation--albeit raising it from the old standard, which had been anything more than a de minimis (i.e., trivial) burden.

What does this mean for schools?

If you receive a request for a religious accommodation under Title VII, you must conduct an analysis on the reasonableness of the accommodation and whether it will create an undue hardship on the school. This analysis should look at things like productivity, employee morale, cost, etc. We highly recommend calling your school attorney to walk through this analysis before denying a request. (We promise it will be cheaper in the long run.)

Counterman v. Colorado, 143 S. Ct. 2106 (2023)

Decided on June 27, 2023, Counterman addressed true threats under the First Amendment in the context of a criminal prosecution. In this case, Counterman sent hundreds of Facebook messages to a local singer, C.W. Counterman and C.W. had never met nor did C.W. respond to any of Counterman’s messages. Counterman’s messages contained a mixture of innocuous (but creepy) comments and also threats such as “You’re not being good for human relations. Die.” These messages caused C.W. to live in a constant state of fear and impacted her daily living. C.W. made a report to local law enforcement who charged Counterman criminally under a Colorado statute. Counterman argued that his speech was protected under the First Amendment and that the messages were not “true threats.” The Supreme Court had to decide whether the First Amendment requires proof that the defendant had some subjective understanding of the threatening nature of the defendant’s statements, in order to avoid a “chilling effect” on speech made by unwitting speakers. The Court adopted a recklessness standard which means “[t]he State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

What does this mean for schools?

In general, we believe there is a good argument that this case does not necessarily affect student discipline cases better handled under the Tinker standard. Because there is no criminal sanction triggered in student discipline, such as with Counterman, we like a school’s argument that the chilling effect on speech is mitigated. As always, for disfavored student speech or conduct that may implicate First Amendment protections, you should focus on gathering and documenting the evidence of disruption.

One of the great things about school law is that it is always interesting. One of the not-so-great things is that it is always changing, and more than ever cases outside of the school context seem to implicate things we’re all facing inside of schools. We do everything we can to keep our clients informed about developments in the law, which has been and will continue to be a wild ride in 2023-24. If you have questions about these decisions or any other emerging area of education law, please do not hesitate to call Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara or send us an email at ksb@ksbschoollaw.com.

KSB Webinar Series

As we gear up for school, the KSB crew has developed an exciting slate of webinars for this upcoming year.  For Nebraska clients, click here and South Dakota clients click here to review the options and topics for 2023-2024.