From “Likes” to Litigation

When it comes to social media, even our attorneys can’t agree. One of us thinks TikTok dances are harmless fun (we won’t name names, but they may have attempted the “Renegade” in the office - thank God Steve’s health insurance premiums are paid up), while another is convinced Snapchat is the downfall of society (you know that isn’t Shari!). Regardless of where you fall on the spectrum, there’s no denying that social media is changing the school landscape—and not always for the better.

Screen Time, Social Media and Mental Health

With social media dominating students' lives, school administrators must grapple with its profound impact on mental health, the rise of deepfakes, and the contentious issue of banning phones.  On December 3rd, we hosted a three-hour webinar that was a deep dive into these issues.  Among other things, we discussed the latest research on social media’s damaging effects on student mental health, a look at the emerging law on “deepfakes,” and practical strategies to mitigate risks for schools.  If you missed it, the recording of the webinar and all of the associated materials are available on the KSB portal.

Social Media Litigation

Our webinar also discussed how litigation against platforms like TikTok continues to highlight the dangers of addictive social media design. Internal documents reveal that features like infinite scroll and autoplay are intentionally built to foster compulsive use. For teens, addiction can take hold in as little as 35 minutes of scrolling. This creates a ripple effect of consequences, from disrupted sleep to poor academic performance.

Hundreds of districts have joined in a consolidated lawsuit seeking to recover damages that schools suffered as a result of students’ use and misuse of social media.  The theory is that since the developers designed these apps to be addictive, they should be held responsible for the harm caused by that addiction.  KSB has partnered with a California education law firm to help our clients who may want to join in this litigation.  If your district wants to learn more, sign up here for details. (Please be aware that the attorneys will be compensated by receiving a proportion of the ultimate award, if any.  If you sign up via KSB School Law, we may receive a portion of the lawyer’s share, but your recovery will not be reduced.  This may technically be a “solicitation” under the attorney ethical rules, and we want you to understand that you can work with any law firm if you want to join this litigation or not join it at all.)

Cell Phone Policies and Bans

If your district is considering revising its cell phone policy, implementing new limitations, or pursuing an outright ban, some new guidance may be helpful. Last week, the Office of Educational Technology released a “Playbook for Student Personal Device Policies.” The playbook encourages the following four-step process to guide the decision process: (1) build a team, (2) define your goals, (3) build a collective understanding, and (4) gather data and insights. The playbook provides strategies, case studies, and tools to help a district work through those four steps. Limiting student cell phone use or banning devices in schools can be a hot-button issue in some communities; if that sounds like your district, this playbook may be a helpful starting point.  

Parent Digital Citizenship Training On Demand

Finally, we believe that parental involvement is a missing component of these discussions.  KSB has developed a short (for lawyers) parent digital citizenship training course that can be purchased through the KSB portal. This resource is designed to help parents manage their children’s online presence and reinforce positive partnerships with schools regarding digital citizenship. It’s available for purchase by any KSB client, and if we’ve provided Digital Citizenship training at your school in person this year, it is available at a reduced rate.  Email shari@ksbschoollaw.com if you would like to know more. 

The Bottom Line

Social media is a bit like cafeteria spaghetti: messy, sometimes hard to swallow, but unavoidable. Whether you’re dealing with TikTok-addicted teens or deepfakes that make you question reality, schools are at the center of the digital storm. Stay informed, stay flexible, and maybe avoid taking legal advice from a trending meme. In the meantime, we’ll keep an eye on the lawsuits—so you can focus on making sure your students don’t reenact the latest TikTok challenge in the science lab.

FLSA Update 2.0: Same Song… Same Dance

Several days ago, a federal district court in Texas put the brakes on the 2024 FLSA rule from the Department of Labor.  For those that don’t remember, we blogged about that rule here.  If a Texas judge issuing a nationwide injunction against a DOL rule sounds familiar, seven years ago, a Texas court did practically the same thing.

The 2024 rule provided for the two-phased minimum salary increases regarding the executive, administrative, and professional exemptions. Before the 2024 rule, the minimum salary requirement was $684/week ($35,568 annually). The first increase of $844/week ($43,888 annually) went into effect on July 1, 2024, with the second increase to $1,128/week ($58,656 annually) due to go into effect on January 1, 2025. The Texas court ultimately found that the DOL exceeded its authority by increasing the salary floor to such a marked degree that the “duties test” was now just a salary test. 

What does all of this mean? The court’s order vacates the rule nationwide. Vacating the rule means that the increase that went into effect in July is also vacated; therefore, we have returned to the pre-2024 rule, where the salary threshold for these exemptions is $684 a week or $35,568 annually.  

The Department of Labor can theoretically appeal this decision, and that appeal could be filed before the Trump administration takes office. However, the Trump administration would be under no obligation to continue to push for the Biden administration increase. It seems unlikely that the Trump administration will defend the salary increase. If that prediction--much like our Husker predictions--turns out to be incorrect, we will provide an update. 

If you increased salaries for your FLSA-exempt staff in July and/or were planning on it in January, at least for now those rules are no longer in effect.  There’s no legal obligation to raise salaries to meet those new thresholds in order to remain exempt under the FLSA. Additionally, any salary bumps from July could be reduced in the future, and we leave to your good judgment the employee morale issues that could arise. Whatever you decide, please note it is not permissible to try to recover any increases that have been paid already before the rule got a Texas-sized boot. 

In our last FLSA blog post discussing the increase, we offered flowcharts for purchase. We will contact those who have purchased to provide an edited chart, but the good news is that those charts are still relevant in terms of the tests to apply to meet those exemptions minus the increased salary threshold denoted within.

Speaking of the upcoming change in administration, we’ve been thinking a lot about what to expect.  As more information emerges about cabinet picks and policy proposals or changes, we plan to share out what you should prepare for in the coming months.  That may be a blog post, webinar, or something in between.  Stay tuned, and  if you have any questions about the FLSA and the Texas injunction, feel free to give us a call at (402) 804-8000 or email us at ksb@ksbschoollaw.com.

2024 PPACA Reporting Workshop

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 Thursday, December 12, 2024. 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.  CLICK HERE TO REGISTER

Where: The webinar will be conducted via Zoom, and all participants will be able to ask questions during and after the presentation.  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 $350 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 the legal and political discussion around PPACA.

As always, the bulk of the presentation will dig 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)!

Finally, we'll have plenty of time during and after the presentation to talk through how to report on common and unique employees and answer your questions. 

Prorate Like a Pro: FLSA Update

In April of 2024, the US Department of Labor announced that it is significantly increasing the minimum salary threshold that salaried employees must be paid to qualify as exempt from the FLSA.  Beginning January 1, 2025, for an exempt employee to remain exempt, the employee’s salary must be $1,128 per week, which is equivalent to $58,656 annually.  With the next salary increase for the FLSA approaching, now is the time to review employee salaries, duties, and possible FLSA exemptions. 

As part of their increase in the salary levels, the Department of Labor released a Frequently Asked Questions document regarding the exemptions. Question 33 specifically looks at how the salary level applies to employees at schools and states “exempt employees do not need to be paid for any workweek in which they perform no work.” 

Practically speaking, that means that an exempt employee who works only a certain number of months out of the year needs to receive the salary level only during those months worked. Furthermore, “employers may prorate over a full year the salary of an otherwise exempt employee who has a duty period of less than one year.” This situation can apply, for example, if an employee works on a 10-month basis but has payments spread over 12 months. As long as the standard salary level is met for the weeks the employee works, those payments prorated over 12 months can fall below the standard salary level. 

A few other reminders: 

• The teacher exemption from the salary requirements remains.  Therefore, teachers do not need to be paid the salary threshold minimums. 

• To qualify for an exemption, the employee must meet all requirements for either the executive, administrative, professional, or computer employee exemptions. We created a flowchart that outlines those specific requirements to consider.  If you are interested in purchasing the flowchart, please send an email to ksb@ksbschoollaw.com.   

• Some academic administrative employees whose primary duties relate to academic instruction or training can meet the salary basis by either (1) being paid the standard salary level; or (2) “at least equal to the entrance salary for teachers in the educational establishment by which the employee is employed.” 

If you have specific questions about an employee's exemption status, call us at (402) 804-8000 or email ksb@ksbschoollaw.com.

Let’s Get BOOlean this October: It’s Cybersecurity Awareness Month

Cybersecurity does not have to contribute to this season's spookiness. From 2016 to 2022, K-12 schools experienced at least 1,619 cybersecurity-related incidents. Because school districts remain a heightened risk environment for cyberattacks, now is the time to assess infrastructure vulnerabilities and cyber practices. 

The FCC and Department of Education have released new guidance to assist schools with cybersecurity efforts. The following three risks have been identified as the most common forms of attacks and should be the top priorities for districts to address: 

1. Compromising of valid accounts, most often those accounts with weak or stolen credentials. 

2. Performing a phishing attack with a malicious link or attachment in a communication. 

3. Exploiting an unpatched but known vulnerability in a public-facing application.  

In light of these risks, the guidance recommends that districts begin with taking the following four steps that have reportedly significantly reduced the risk of a cybersecurity threat: 

1. Use multi-factor authentication

2. Require the use of strong and unique passwords for accounts

3. Be able to recognize and report phishing

4. Stay up to date on software updates

Additionally, the FCC is launching a Schools and Libraries Cybersecurity Pilot Program that will provide up to $200 million in funding to selected participants to reimburse them for cybersecurity services and equipment. Districts can apply for the program until November 1, 2024.

If you do experience a cyber attack or security breach, keep in mind that there are both state and federal law obligations that may kick in.  For KSB Policy Service subscribers, general requirements are laid out in policy 3047.  Other obligations, like informing the affected individuals of a breach or unauthorized disclosure, vary a lot based on the facts.  If in doubt, give your school lawyer a call.

In light of Cybersecurity Awareness Month, we encourage you to discuss cybersecurity with tech coordinators, staff, and vendors. KSB offers digital citizenship assemblies for students and staff in-services that focus on AI, speech, and social media as one means to begin the conversation around cyberspace issues. If you have any questions or wish to learn more about presentation options, call us at (402) 804-8000 or email ksb@ksbschoollaw.com. 

It’s Sweater Season! October Happenings and Reminders

Now that the September budget season whirlwind is over, it’s time to turn our attention to October.  We hope to see many of you at the Labor Relations Conference in Lincoln this week, because among other things, bargaining season is upon us.  In that spirit, here are a few items to think about as the leaves change and harvest is in full swing.

Odds and Ends

• Think ahead about option enrollment.  Here’s a reminder that if your school plans to “close” any class, program, or building to option enrollment for the 25-26 school year, the board must act “before October 15.”  You are not required to close anything to option.  But, if your board chooses to do so, the deadline is October 14.  Remember, no longer can you declare your special education program to be at capacity.  Get that out of your option resolution!  (As a reminder, if you don’t yet know what your capacity will be for specific programs and classes (e.g., 22 students per third grade class, etc.), you DO NOT have to set those capacities by October 14.  The October 14 deadline only applies if your board is going to take action to categorically close a class, program, or building.)

• Many schools conduct superintendent evaluations in the October-December window.  Superintendents, confirm you are providing the board with the evaluation instrument on file with NDE.  Board members, make sure you know the timelines and process you plan to use.  And please, please do not assume you can always use closed session.  In general, closed session is only appropriate to cover aspects of the evaluation that will “needlessly injure” the superintendent’s reputation.  If your full board plans to review the evaluation with the superintendent, the non-injurious discussion should happen in open session.

Collective Bargaining

• Under Nebraska’s collective bargaining laws, bargaining must begin on or before November 1.  There are several things you should start now to be prepared for negotiations.

• Nail down your array.  Remember, CIR rules use the two criteria of size and distance.  Schools in your array must be no more than half and no more than double your enrollment.  From there, you expand out a perfect circle from your school until you have somewhere from 7-13 (ish) schools inside the circle.  That’s your array.  It’s also important to remember that the CIR will set your array based on these criteria, irrespective of whether the school board and the education association agree on a different array.  Again, we recommend against getting creative.

• Gather up negotiated agreements from your array schools.  Things are happening fast as more and more schools use the bargaining process to find creative ways to attract and retain staff.  Items that were not prevalent practices even a couple of years ago (like switching to PTO) may be now.  The only way to know for sure is to look at the agreements from your array schools.

• Review your agreement, and consider if you’d like your school attorney to review it.  We don’t think you need a lawyer to review your negotiated agreement every year, but it’s a good investment to have it reviewed every few years to make sure it remains lawful and consistent with CIR rules and labor laws.  Most agreements that we review have several items that can be clarified or improved and that are not necessarily “fighting issues” with the education association.

• Make sure your comparability analysis is where it needs to be.  Who the heck knows what the Unicameral is going to do with school funding in the next 365 days?!  What will another year of significant teacher shortages mean for compensation increases?  Do retention or hiring bonuses “count” in total compensation for bargaining purposes?  Of all years, this is the one to make sure you are confident in your comp study.  

• One common question is how to handle situations where a board member may have a conflict of interest, such as a spouse who teaches for the school.  The Nebraska Accountability and Disclosure Commission’s interpretation goes like this: A board member who has a spouse who is a member of the bargaining unit has a conflict of interest that prevents the board member from negotiating a tentative collective bargaining agreement. However, that same board member may vote to approve the CBA if the board member had no role in formulating the CBA, the classifications apply to all employees within that classification, and the CBA does not single out his or her spouse for special action. Also, a board member who is a coach has a conflict of interest that prevents him or her from negotiating a collective bargaining agreement and from voting on the CBA.  Possible conflicts arise when a board member is acting on a contract that will affect a member of their “immediate family,” which includes their spouse, a child living in their household, or an individual claimed as a dependent for tax purposes.

• Finally, make sure you are prepared for making and responding to initial offers by November 1.  Constructing a lawful array, assessing prevalent items, knowing your comparability, and negotiating over only appropriate subjects of bargaining should all come together in real-time.  Don’t fall into the trap of assuming it’ll just be about salary this year.  We expect many boards and local associations will propose some unique items this fall.  Remember that only items actually bargained in good faith are ripe for resolution/CIR intervention.

If you have any questions, contact your school lawyer or give us a call at 402-804-8000, shoot one of us an email, or send questions to all of us at ksb@ksbschoollaw.com.

An Oft-Overlooked Employee Concern: Mental Health and the ADA

September, one of the longest months on the school calendar.  With school in full swing, administrators are handling the full range of concerns, from student discipline to staffing.  As we approach the colder and darker months of the Midwest fall and winter, data suggests rates of anxiety and depression increase.  According to the National Institute of Mental Health, one in five people will experience a mental health condition in their lifetime.  This coincides with the increase in calls we have received from administrators  asking about accommodation requests for employees under the Americans with Disabilities Act for mental health.

Under the ADA, mental health conditions, such as anxiety and depression, can qualify as disabilities if they substantially limit one or more major life activities.  “Substantially limits” is meant to be broadly interpreted.  “Major life activities” include tasks such as speaking, thinking, concentrating, learning, and communicating.  While not all employees who have mental health conditions will qualify as having a disability or need accommodations, districts should be aware of the necessity to engage in the interactive process with employees who indicate the need for a reasonable accommodation or who report their mental health is impacting their attendance or job performance.

As a quick refresher, the interactive process includes a conversation with the employee about the essential functions of the job and also what accommodations can be granted to assist the employee in completing the job.  For mental health conditions, reasonable accommodations can include things such as reduced work hours to attend counseling or therapy, extended leave related to mental health, or more frequent breaks for self-regulation.  For more information, the DOL has released a guidance sheet available here.  Keep in mind that for situations where an employee may need an extended absence, treatment, or a combination, their leave may also qualify under the FMLA.    

If you have any questions regarding the ADA or schools’ responsibilities to engage in the interactive process or would like to purchase KSB’s interactive process packet to assist you in responding to these requests, please reach out to us at ksb@ksbschoollaw.com or call 402-804-8000.

*Quick reminder*: the first of KSB’s Quarterly Webinars of the school year will be presented live tomorrow at 9:00 am central time.  The KSB attorneys will bring you up to speed on all issues related to staff and student First Amendment rights.  Click here to register if you have not done so already.  

Digital Inclusivity

The first few weeks of September have been a blur, fall is upon us, and the Huskers are bringing us back to 1994.  With all the buzz about back-to-school and football, we cannot forget about the exciting costly legal updates on the horizon.  In April 2024, the U.S. Attorney General signed a new rule on accessibility of web content and mobile apps which applies to state and local governments, including public schools.  This new rule centers around digital inclusivity and promoting accessibility to people with disabilities. The rule contains several key areas including text alternatives, keyboard accessibility, readable content, and navigability.  

While this rule will certainly require time (and money) for school districts to achieve compliance, the government built in generous timelines.  Compliance for schools located in cities of 50,000 people or more is April 24, 2026.  Schools located in cities of 49,999 people or less must be compliant by April 26, 2027.  Additionally, the rule carves out exceptions to accessibility for archived web content and preexisting PDFS, documents, spreadsheets, and presentations. 

How should schools begin to prepare for this undertaking?  Now is the time to evaluate your current digital presence and how your websites and mobile apps currently align with the requirements of WCAG 2.1, Level AA, which is the technical standard required by the new rule.  By making small changes now, such as adding alternative text below images and videos, it will ease the process.  We anticipate the Department of Education will also issue guidance and resources on accessibility as the deadline for compliance nears.

So, mark your calendars for the compliance date, have conversations with your tech coordinators, and consider the next steps to ensure compliance.  While compliance under the new rule is mandatory for schools, the increased accessibility will prompt inclusivity for all.  If you have any questions regarding this new rule or its impact on schools, please do not hesitate to contact us at ksb@ksbschoollaw.com or give us a call at 402-804-8000.     

Announcing KSB’s 2024-2025 Quarterly Webinar Series

NOW OPEN FOR REGISTRATION!

This week, the team at KSB is riding high after going 10-0 on our opening week football picks (sorry, not sorry, @Lucas4westside). We’re keeping the momentum going by rolling out the dates and topics for this year’s Quarterly Webinar Series.  

But before we break down this year’s lineup, let’s first celebrate Nebraska’s upcoming victory over Colorado—the team we ALL love to hate. Join us on September 7th from 3:30 - 6:30 PM at our new office for KSB’s annual football party. It’s the perfect chance to eat, drink, and check out our new office space. Haven’t RSVP’d yet? You can do so here.

If you’re new to our Quarterly Webinars, each session provides a three hour “deeper dive” into education law topics that impact your daily operations, but that may be too complex to master in a one-hour session. Whether you’re tackling free speech and social media challenges or gearing up for new regulations, our webinars will arm you with the legal and practical strategies you need to stay ahead.

Now, let’s huddle up and take a closer look at what’s in store for this year’s Quarterly Webinar Series.

Topic:  Free Speech Frenzy: Navigating First Amendment Issues in Schools in 2024

Date:  September 24, 2024

In today's polarized climate, school administrators face a whirlwind of First Amendment challenges, from student dress codes and controversial "Let's Go Brandon" t-shirts to staff members vocalizing political views in the classroom and on social media. The complexities only deepen when addressing staff members' refusal to use students' pronouns of choice. The attorneys from KSB will dive into these hot-button issues, focusing on practical guidance for Nebraska and South Dakota school districts. We'll break down the legal landscape, share real-world scenarios, and provide actionable strategies to balance free speech rights with maintaining a respectful and inclusive school environment.

Topic: Screen Time Showdown: Addressing Social Media, Mental Health, and School Policies

Date: December 3, 2024

With social media dominating students' lives, school administrators must grapple with its profound impact on mental health, the rise of deep fakes, and the contentious issue of banning phones. This webinar will provide an update on the latest social media litigation in both federal and state courts, alongside insights from the May 2023 Surgeon General's report on the damaging effects of social media on student mental health. The attorneys from KSB will equip you with the knowledge to navigate these challenges, offer strategies for effective communication with parents, and present policies to mitigate risks. Join us for a comprehensive look at the intersection of social media and school environments.

Topic: Investigations

Date: February 11, 2025

With an increase in significant behavioral episodes and threats from students, coupled with similar trends in staff misconduct, it seems school administrators spend as much time with their detective hat as any other.  Unfortunately, it’s these difficult situations that demand the most immediate response from administrators that may never have been trained to conduct interviews and document investigations.  And, of course, these are the situations where the process and paperwork often face the most scrutiny after its completed. This webinar will equip administrators with the information and tools they need to feel prepared for the moments nobody can truly be ready to face.  From understanding when complaint processes must be initiated to practical advice on gathering evidence and making decisions, the attorneys at KSB will cover the complexities of conducting through investigations that uncover the facts and cover your school’s and administrators’ [redacted].

Topic: Turbulent Tides: Navigating the Next Wave of Regulations

Date:  April 22, 2025

As we brace for a new administration in 2025, the future of Title IX regulations is uncertain. What changes can we expect, and how will ongoing litigation shape the landscape? Schools have been riding the rapids with Title IX, facing continual shifts and new challenges. The attorneys at KSB will provide an in-depth analysis of the current status of Title IX, anticipate future changes, and outline essential training strategies. Drawing from our extensive experience and past Title IX sessions, we aim to make navigating these turbulent waters smoother for your district, offering clarity and actionable insights to stay ahead.

How to Register 

Ready to join us? Click here to select and sign up for one or all of the series.  It’s possible that your ESU has registered for the entire series.  If they have, your district won’t be billed for the series.  Please check with your ESU Administrator if you are unsure whether or not they have purchased the webinars.  

Feel free to let us know if you have any questions or need further information. 

Don’t Forget the Rookie and Refreshers as well!

It isn’t too late to catch up with the 2024-2025 Rookie and Refresher Series, designed to support both new and experienced administrators with monthly webinars that are short, practical, and encourage open questions. These webinars are divided into three strands: Principals, Special Education Leaders, and a combined track for Superintendents and Business Managers, with each session tailored to sharpen specific skills. Additionally, KSB is launching a new series for board members, offering concise, focused training developed in response to feedback from superintendents. Click here for more information or to register. 

KSB’s Husker Predictions…

This is the post you’ve been waiting for!  It’s game week! But, before we dive into the picks, here’s your reminder that KSB’s annual tailgate party will be held from 3:30 - 6:30 on September 7th at the new KSB office.    

If you haven’t RSVP’d yet, you can do so here.

KAREN’S PREDICTION:

*Well, well, well, look who’s back for another round of Huskers heartbreak!* I’d say I’m excited, but we all know better by now. After years of this, I’ve become the Eeyore of Husker football—except even Eeyore would probably tell me to cheer up. But let’s get to it: I’m predicting five wins this season. And yes, that’s with my usual dose of existential dread.

First off, let me just address the maize and blue elephant in the room.  Y’all have NO IDEA how insufferable Steve and Jordan are right now.  I just want to point out that Jim Harbaugh hightailed it to the NFL like he was fleeing a crime scene (Michigan players were able to give some helpful tips). I’m sure Bill Belichick and Sean Payton are thrilled to no longer be the only ones on Roger Goodell’s watch list.

I also have very big feelings about the expansion of the B10.  I’m sure that Tony Petitti, the Big Ten's New Commissioner, is jealous that KSB has our very own Californian, but this conference realignment is simply out of control.

Now, for the real show.

Nebraska’s season will start with a huge, angry Husker win against UTEP.  Shari is calling their AD this week to offer to send a KSB lawyer to talk to their team about good digital citizenship (first lesson: don’t piss off opposing teams on Twitter). 

Things will get very real very fast when Coach Prime struts into town.  I hate myself for it, but I’ve got myself convinced that this one goes the Huskers’ way.  Shedeur will be dodging Ty Robinson and Jimari Butler harder than Shilo dodging judgments in bankruptcy court.  And for a moment - one sweet moment - I’ll be drinking the Big Red Kool Aid. 

The rest of the season does have some wins: Northern Iowa? We’ll send them packing faster than you can say “cornfield.” Illinois or Indiana? Yeah, we’re losing one of those. (Take your pick; it’s like choosing between stubbing your toe or biting your tongue.  Either one stings and robs you of your dignity.) UCLA? Sure, we’ll take that one, and Bobby—bless his heart—will start talking about how the season is turning around. I’m almost envious of his naivety. Almost. (At least Bobby is not as perpetually optimistic as Sara. Seriously, if her Husker spirit could be bottled, we’d never need Red Bull again.)

But let’s not kid ourselves about the rest. Ohio State (yes, we called an emergency meeting of the KSB hiring committee when we discovered Amanda’s hidden football heresy, but she is going to be that good of a lawyer, folks), Wisconsin, USC - those games will be uglier than P.J. Fleck’s OnlyFans page.  Those losses will not be as irritating as our homecoming loss to Rutgers.  (Rutgers’ Homecoming Court, where the tiaras aren’t the only thing made of plastic.) And Iowa? Even if the rumor about Brian Ferentz taking over for dad during the suspension were true (sadly, it is not) those ticky tacky recruiting violations will be in the distant past when the damn Hawkeyes ruin another perfectly lovely Thanksgiving weekend.  (Tyler, we get it—you went to Iowa, but some of us have standards.)

The tail end of the season is going to be ugly, folks. We’re talking “delete your social media” kind of losses. Brace yourselves.

So, five wins it is. It’s not a Cinderella story, but at least we’re not Oregon State or Washington State. 

STEVE’S PREDICTION: 

[Editor’s Note.  It’s bad enough we have an Irish fan at KSB (cough, Matt Russell, cough).  The fact that someone as wonderful as Matt can root for evil was tempered at least a bit when we hired a fellow Michigan Wolverine fan.  Yes, for all of his faults, Jordan Johnson roots for the greatest team in the history of college football.  It’s proof that even a blind chicken finds a kernel of corn once in a while.  But now I learn below of one of life’s greatest betrayals.  KSB hired a Buckeye fan.  There is a fox in the hen house!  And here I thought I’d never get a chance to use those house-burning skills I learned as a kid in Detroit on Devil’s Night!  I mean, I have no idea why Amanda’s house is on fire officer . . .]  

The Dylan Raiola era has arrived.  Mr. Raiola has fans pretty fired up about the future.  I haven’t seen anyone this excited since Jordan learned that Taco Bell began serving breakfast.  Yes, Mr. Raiola is a five-star prospect.  Yes, he was supposed to go to Georgia, one of the premier programs in the country.  But he is a true freshman, and he’ll be playing behind Nebraska’s O-Line instead of Georgia’s.  I expect some typical freshman ups and downs from the new guy, but I also expect improvement from the rest of the team.  Dare I say that the Huskers will resemble a real football team this year?!? 

The first half of the schedule makes Hostess jealous, and the Cornhuskers take full advantage.  They begin the season 6-1, and Husker fans are making plans for the playoff.  Unfortunately for the Cornhuskers, they will have to play the last 5 games of the season.  The Huskers begin a rollercoaster end to the season with a loss at Ohio State.  They follow that up with a win against UCLA, a loss to USC, a win against Wisconsin, and a season-ending loss at Iowa.  An 8-4 season for the Huskers and their first bowl game since 2016!

BOBBY’S PREDICTION: 

Does this year actually feel different than the last 7?  Or am I just that desperate for some mid-December bowl game with its 3rd new name in the last 3 years?  What the hell is the Cricket Celebration Bowl on December 14?  IDK, but I’d take it.

Preseason odds have the Huskers favored in 9 games, one-score underdogs in 2 games (USC, Iowa), and big underdogs against Ohio State.  But the win total is over/under 7.5 for the 12-game regular season.  It’s almost like Vegas knows how Husker fans bet...but on with my predictions.

UTEP: The Dylan Raiola era starts 1-0, even if a bit sloppy.

Colorado: Woof.  Win this game and you “should have,” but lose this game and way too many people react the way Steve does when he gets cut off in traffic.  I think Raiola is a genuine talent at QB.  But he’ll press too much after some game 1 hype on national TV, and Shedeur Sanders leads a game-winning drive against a gassed Nebraska defense.

Northern Iowa: Close enough to Iowa City I have to predict a win.

Illinois: My heart says we can go 4-0 through this next stretch, but my brain can’t let it happen.  I respect Bielema way more than I want to respect him.  Something just feels off to me about this one.  Emotional loss to Colorado, get-back win over UNI that masks real issues, then a short week and a Friday night game much to the chagrin of ADs across the state.  Our shaky left tackle position leads to a sack on Raiola that stalls a comeback drive.  Bleh.

Purdue: Playing in front of dozens of rabid fans in West Lafayette is always tough…  But I think the Huskers pull away in a game where the turnover battle makes a big difference, and we’re finally on the right side of it.

Rutgers: Remember how I feel about Bielema?  Well Schiano is only slightly less detestable, but somehow creates gritty teams.  Thankfully this is at home, and DONU gets the homecoming W in an ugly one.

Indiana: Their new coach, Curt Cignetti, made some Scott-Frost-esque comments prior to coaching a single game in Bloomington.  “I don't plan on taking a back seat to anybody…. Purdue sucks, but so does Michigan and Ohio State. Go IU.”  LOL, okay guy.  Nebraska will have 2 weeks to prep, and Coach Cocksure has the Hoosiers off to a solid 5-2 start and feeling more confident than they should.  Nebraska in a close one.

Ohio State: Hoping it’s still a game in the 4th quarter, but depth and NIL money prevail either way.

UCLA: So a team from LA comes to Lincoln for a conference game in late October now, huh?  What a time to be alive.  I think Nebraska takes advantage of a cold night and first-time, first-year head coach in Foster, reaching bowl eligibility for the first time since my first grader was born.  That’s a lot of “firsts.”

USC: I have no clue what to expect here, but how is Nebraska only a slight dog in this game?  Love him or hate him, I think Lincoln Riley’s feeling a bit of heat at this point and will improve his defense a bit.  His crew gets it done in the City of Angels to remain relevant in the Big Ten race.

Wisconsin: I love and hate finishing the season with Wisconsin and Iowa.  I think they will be good games, but I’m also pretty sure none of the old Big Ten West “powers” will be in contention for the conference or playoffs.  Shush, Iowa fans, no you won’t.  To me (and Vegas), these are basically pick ‘ems.  I’ll take Nebraska to go 1-1, and finally get the Badger off its back.

Iowa: The funniest thing I read in the offseason was a description of Ferentz’s recruiting violation when courting QB Cade McNamara: “It’s like serving 15 years for buying oregano from your dealer.”   LOLz.  Now that his son got fake-but-real fired, Kirk is back on top of most detestable opposing coaches.  But he somehow convinces opposing teams to play like his, and this will be hideous football if you are a fan of the forward pass and touchdowns.  The defense holds up, but Nebraska’s uncertainty in the specialist ranks costs them in a weather-impacted field goal and field position battle in Iowa City.  

Final tally: 7-5, a bowl game, and progress, but still at least a year away from sniffing something more than the StaffDNA Cure Bowl (yes, that’s real).

SHARI’S PREDICTION:

We know one thing going into this season.  Dylan Raiola wants to be Patrick Mahomes and might be his #1 Mahomie!  Dressing like him on move-in day at UNL caught the attention of many, including Patrick.  He was also able to get number 15 as the last piece of the puzzle to be like Mahomes.  Now, we can only hope he plays like him.  As Husker fans do every season, we’ve found one thing to grab onto for us to say “this is the season”.  So will the new QB be the thing to get us through this season?  Time will tell.  

We all know that attorneys like to talk a lot!  So I’ll let them do the long predictions.  I’ll keep it short.  I think that we could be 7-0 going to Ohio State in late October!  It’s possible.  I think we will lose at Ohio State and then bounce back against UCLA.  With the end of the schedule being USC, Wisconsin and Iowa, I believe we will win one of those.  I think we will get past Iowa!  2024 Prediction - 9-3!  Go Big Red!  

The more things change, the more they stay the same.  It’s a new year, and there has been a lot of water under the bridge, but I return to a familiar feeling . . . I’m fired up for Nebraska football!!!

COADY’S PREDICTION: 

I genuinely think (hope?) that Nebraska is markedly improved.  The team was so, so, SO (!) close in too many games last year.  Just some more ball security . . . not to mention, . . . (ahem) . . . improvement at the quarterback position, and Nebraska should see much more success in the win-loss column.  And, the schedule—especially at the front end—is very favorable.  I think it’s likely that Nebraska reaches bowl eligibility before it suffers its first loss.  The first seven games should all go Nebraska’s way.  (Now, whether they will or not remains to be seen.)  So, I’d love to see Nebraska at 7-0 when it goes to the ‘Shoe to face mighty Ohio State.  That’ll be tough sledding, though, and Nebraska will take its first L in Columbus.  Then, Nebraska will bounce back against UCLA in Memorial Stadium before likely losing the next two in the Coliseum against USC and at home against Wisconsin.  The last game in Iowa City will be a coin flip.  All in all, I see Nebraska going 8-4, bowl bound, and continuing to practice (and improve) into December.  Let’s GOOOOOOOOO!

JORDAN’S PREDICTION:  

[Editor’s Note.  You will notice I have omitted any reference to the decade of domination against Nebraska referred to in the post by our newest former KSBer Amanda.  While I can coalesce with almost anyone around the joy of watching Nebraska fans misery, I disrespectfully refuse to recognize any of the joy felt by resident Husker Haters who cheer for teams in Ohio.]  

It’s been a hell of a run for us KSB Husker Haters!  Between the glorious triumph of the victors from Ann Arbor last year (which definitely happened, regardless of whether or not it stays in the books) to the era of dominance Tyler’s Hawkeyes reigned over the Little Red for what felt like a decade, the Haterade™ tasted good and cold each year as we came to put down our predictions.  I think Steve even got a little tipsy off it last year.  But this year?  It’s seeming a little warmer and a little weaker than usual with the consensus being at least a bowl bid.  And I don’t like the taste of that one bit.  So let’s pour one more shot of Maize and Blue into the cup to get back to reality and remember, what can go wrong, will go wrong, for the 5-7 Huskers.  

I’ve heard some pundits suggest that it's not inconceivable that Nebraska gets to Columbus a clean 7-0.  In the words of the insufferable Lee Corso, not so fast my friends.  I see four wins in that stretch with a heartbreaking loss to Colorado setting the tone for the season early.  The team will limp into the toughest part of their schedule and only win one more game (most likely a arena football league style shootout with USC) to fall short of the automatic bid.  But hey, you’re only one stretch of seasonal affective disorder followed by a spring of optimism and summer of delusion from being right back here, hopeful as ever.

[Editor’s note.  Oh, and it's an unexpected 10-2 season for Michigan on their way to a B1G Championship and return to the playoffs, in case you’d like to hop on the bandwagon of a winning team.] 

TYLER’S PREDICTION: 

Well, I have to find a new joke for this year as my five year old son has unfortunately actually seen an Iowa loss against Nebraska.  I don’t think that particular bit of history is going to repeat itself however, as Iowa’s new offensive coordinator will hopefully teach the team this new technique of throwing the football forward to another player beyond the line of scrimmage. I hear it’s all the rage.  

For the Huskers, it'll be a tale of two seasons, with a gaggle of wins early to build hope only for reality to set back in as the weather turns, and for reality to stick around for the remainder of the season. Here’s the breakdown with some looks into the minds of the typical husker fan after each week’s game.

UTEP: Win (“Sarcastic Woohoo, we beat UTEP. Keep it under control and act like we’ve been here before.”)

Colorado: Win (“Thank god, Deion would have been insufferable if we’d lost”).

Northern Iowa: Win (“This counts as another win against Iowa, right?”)

Illinois: Win (“Ok, I think we may be good?”)

Purdue: Win (“Oh baby, we are so back.”)

Rutgers: Win (“HAPPY FEELINGS ABOUND. WE’RE NEVER LOSING AGAIN”)

Indiana: Loss (“No panic yet, just one loss”)

Ohio St: Loss (“Come on, no one expected us to actually win this one”)

UCLA: Loss (“Uh oh”)

USC: Loss (🎵”Hello darkness, my old friend”🎵)

Wisconsin: Loss (“Matt, this so doesn’t Rhule.”)

Iowa: Loss (“What, they pass now? That’s so unfair! They only scored with their defense before!”)

So, 6-6 and bowl eligibility, but it won’t feel good.

SARA’S PREDICTION:

Greetings to my fellow disciples of the Scarlet and Cream.  This is the year of Husker greatness.  While past seasons have left us disappointed, this is the salvation season.  Put on your Husker gear, don the cornhead hat, and prepare to chant “Go Big Red.”  (Wait - doesn’t this sound like a cult? Am I a member of a cult? O well…)

The team has shown promising signs that this year will keep us on the edge of our seats.  With that, I am going to continue to believe my beloved Cornhuskers will have many triumphs.  I am calling a 9-3 season (maybe even 10 wins - hot diggity our luck is turning around).  The Huskers will record Ws against: UTEP, Colorado, Northern Iowa, Illinois, Purdue, Rutgers, Indiana, UCLA, and Wisconsin.  Losses will be against Ohio State, USC, and Iowa.   

May the Gridiron Gods smile upon us. Husker Pride, now and forever! 

AMANDA’S PREDICTION:

KSB Roster Update! Hello everyone, I’m Amanda, long-time KSB law clerk, and first-time Husker predictor. A bit of backstory. I was born in Ohio, raised in Wisconsin, and now reside in Nebraska… which leads to the question, who do I cheer for? This may be painful for some, but KSB has hired a Buckeye. The good news is, since The Ohio State University has not lost to the Huskers since 2011, I am willing to occasionally root for the Huskers and give a lackluster chant of “Go Big Red!”

Now for my prediction, I engaged in extensive research which consisted of sending at least two texts for input and reading no less than one article. Through this process, I am confident that the Huskers will go 7-5 this season. Huskers will win against: UTEP, Northern Iowa, Illinois, Purdue, Rutgers, Indiana, and UCLA. Naturally, the Huskers will lose against Ohio State… and Colorado, USC, Wisconsin, and Iowa. But who knows, maybe my undoubtedly impressive freshman season as a predictor also means the Husker’s freshman QB will have an equally as impressive year?

MATT’S PREDICTION:

Fooooootball season is here!  Another year of predictions that never end well for the Skers!  Starting at home with Utep.  Well they should win easily, but with a freshman and first game jitters he’s going to rely on the run game and some quick hitters to the receivers to get comfortable. They do get a win 38-24 against Utep.  I think they lose to Colorado with Sanders throwing 4 TD’s and Dylan struggling and throwing a pick six, Colorado wins 31-28.  Another home game is next. Dylan can get comfortable in the offense against Northern Iowa and get another win under his belt 42-24.  Illinois sucks and another cupcake another win 42-28.  Finally going on the road to Purdue and this one is a close game because Dylan throws a pick six and can’t get in sync with his receivers, plus gets hurt this game. I feel like they lose another close one with the backup QB in 31-28!  I don’t know much about Rutgers other than Greg Schiano is a good head coach and should have them ready to go against the huskers.  I think the Huskers lose a tight one. 35-31.  Indiana is the third best team in their own state (ND is obviously first followed by Purdue). Dylan comes back and throws three TD’s and wins easily 42-21.  Next up is Ohio State and everyone knows this will be a loss and Dylan struggles against the Ohio State defense. 45-17 loss.   A much needed win against UCLA will be needed after the loss.  Nebraska will get the job done 42-35.  I feel like a loss to USC is a losing battle, Lincoln Riley runs up the score on the Skers 45-21.  Going into their last home game against Wisconsin they will finally win a close one 31-28.  I think Iowa on the road will be a loss 28-24.  At this point the Husker fans have lost all faith and are down on what was supposed to be the breakout season.  The Huskers will win just enough for a random midweek bowl game! They end the season 6-6!  Go Irish! 

**Sharpen Your Skills: Back-to-School Prep for a Successful 2024-2025!**

With staff in-services wrapped up and the first day of school here, Nebraska principals are about to tackle the inevitable challenges of student discipline. To keep you ahead of the curve, KSB School Law has posted a recording of last year’s Nebraska Student Discipline Webinar on our portal. This three-hour session covers the latest updates to the Nebraska Student Discipline Act, complete with an updated flow chart and discipline forms. If you participated last year, you can access it for free; otherwise, it's $500.

Recent changes to the Nebraska SDA now allow parents to reject the hearing officer initially proposed by the school district, increasing the need for trained hearing officers. We’ve also posted specialized hearing officer training on our portal, available for $500—just be sure to pick the right course to avoid redundant content.

As you gear up for the new school year, be sure to check out our Rookie and Refresher Series. Whether you’re a first-year administrator or a seasoned pro, these monthly webinars offer practical, bite-sized insights. New this year, we’ve added a series for board members, featuring focused 10-minute sessions designed to fit their busy schedules.  Ready to register or need more info? Click here to sign up for the series that suits you best.

For those who haven’t yet caught up on the latest Title IX developments, click here to access our training. Need in-person training for your staff? Email Shari at shari@ksbschoollaw.com to schedule a session.

As we have in the past, we will again be having our Quarterly Webinar Series.  Be on the lookout for that information coming out soon.  

Lastly, we know you’re all waiting for our Husker predictions—they’ll be out soon. If you want to congratulate Karen on her spot-on picks in person, join us at the KSB tailgate!

Here We Go Again, . . . Federal Court Stops U.S. Department of Education from Enforcing 2024 Amendments to Title IX Regulations in Nebraska and South Dakota

In April 2024, the U.S. Department of Education released proposed changes to the Title IX regulations that were scheduled to be effective August 1, 2024.  We have previously provided updates on where things stand (e.g., here, here, and here).

On July 24, 2024, a federal court in Missouri issued a preliminary injunction blocking the enforcement of the 2024 regulations in several states, including Nebraska and South Dakota.  The court held that the states demonstrated a “fair chance” of prevailing on their arguments that “that the unambiguous plain language of Title IX and the legislative history support their position that the term ‘sex’ means biological sex.”  What the Department proposed exceeded its authority.

For now, the Department is barred from enforcing the proposed 2024 changes to the regulations in Nebraska and South Dakota (among other states).  However, the court made clear that nothing in the “order limits the ability of any school to adopt or follow its own policies,” or to otherwise comply with applicable state or local laws or rules regarding Title IX.  Practically speaking, the effect of the injunction means school districts should implement procedures and practices that are best for students and schools, so long as those practices and procedures are consistent with schools’ obligations to respond to allegations of sex harassment in a way that is not deliberately indifferent.

Hey, KSB!  Since we’re rapidly bearing down on the first days of school, what does that mean for our planned trainings and policies?

The only clear conclusion is that there is no way to make everyone happy.  It feels like we’re in this position a lot these days.  KSB’s approach since releasing our updated Title IX policy and completing our training materials has had an eye toward the likelihood of an injunction and all of this uncertainty.  We avoided the politically sensitive aspects that have been the focus of most of this litigation.  If you’ve adopted KSB’s policy, it is consistent with your obligation to respond to allegations of sex harassment in a way that is not deliberately indifferent.  We believe that will go a long way toward showing that school districts are meeting Title IX’s mandate—whether under case law or either set of applicable regulations.  If you still have questions about your policy and training options, we recommend that you consult with your legal counsel to discuss the pros and cons of each.

Having your staff trained on how to respond to allegations of sex discrimination and harassment remains one of your best defenses in court or with the Office for Civil Rights.  You should train all of your staff (including subs, community coaches, and board members) on the basics of what Title IX covers and most importantly, their obligation to report allegations of sex discrimination and harassment to the appropriate administrator(s).  Perhaps now more than ever, it’s important that staff understand schools still have Title IX obligations under the law, no matter what they’ve read in the headlines.  This training should be short and clear, because those obligations exist under the law and court cases regardless of what the regulations say.

You should also train your administrators responsible for implementing the policy your board adopts--your “Title IX Team.”  Our Title IX Team training is designed to equip you to respond to Title IX cases, with a greater focus on the key components of both sets of regulations and what the courts have actually said up to and including in the most recent injunction decisions. Even though the 2024 regulations are on hold for now, your training should ensure you’re prepared to implement your policy but also prepared to adapt quickly for any scenario as these court cases progress.  Regardless of the source of your training, both the courts and the Office for Civil rights expect staff to be trained on their obligation to recognized and report sex discrimination and harassment.

As always, you can reach Karen, Steve, Bobby, Coady, Jordan, Tyler, or Sara at (402) 804-8000 or all of us at ksb@ksbschoollaw.com.  We look forward to working with you to navigate this shifting landscape as you prepare for a great school year!

KSB’s 2024-2025 Rookie and Refresher Series – Now Open for Registration!

As the days grow shorter and the back-to-school buzz starts humming, you know summer is winding down. The signs are all there: kids grudgingly trading swimsuits for backpacks, the mad rush for school supplies, and of course, NCSA’s Administrators' Days Conference in Kearney.  This year, the NRCSA golf tournament was overflowing with eager participants, but no one could outplay KSB’s own Sara Hento who took home the top prize (with just a little help from Bobby Truhe and a ringer with a name that sounds a little like Ike Mapple….)

Now that everyone is preparing for the new school year in earnest, KSB has opened registration for the 2024-2025 Rookie and Refresher Series.  These monthly webinars were originally designed for first-year administrators, but they have been very popular among experienced leaders as well. Each session is short, practical, and to-the-point, encouraging open questions from live participants. 

What Is Being Offered for Administrators This Year?

We are offering three separate strands for administrators for 24-25:

• Principals - Just like Taylor Swift’s iconic album re-releases, we've taken our greatest hits from previous principal webinars and added fresh, new sessions to create the ultimate lineup for the 24-25 school year. 

• Special Education Leaders – This year’s focus for special education will be “Perfecting the Paperwork," and is designed to sharpen your skills in documenting the amazing special education services you provide students.

• Superintendents/Business Managers – This year, we've combined the roles of superintendents and business managers into one series which is designed to improve the crucial collaboration between these positions for effective school district management. 

What’s New This Year?

We’re proud to launch a dedicated series for board members! This new strand will cover essential governance topics and provide board members with the tools they need to lead their schools effectively.  Piloted through a successful partnership with ESU 9, this series was developed in response to feedback from superintendents who emphasized the need for short, focused training for board members who may not have the time to travel to state education conferences. Each video in the series is around 10 minutes long, concentrating on critical areas that Nebraska board members need to know about.

How to Register 

Ready to join us? Click here to select and sign up for the Rookie and Refresher Series that best fits your needs. 

Feel free to let us know if you have any questions or need further information. 

What About the Quarterly Webinars?

We will also offer our quarterly webinar series, providing a "deep dive" into education law topics that impact your school district's daily operations. Given the current uncertainties surrounding both Nebraska law and federal regulations, we will not announce the dates and topics for these webinars after Labor Day. Stay tuned!

UGG Changes: What's New and How It Impacts You (Plus a Quick Title IX Update)

Why did the federal government cross the road?

To change the rules on the other side!

We had this edition of the KSBlog set to satisfy everyone’s deep desire to dive into updates to the federal Uniform Grant Guidance that will go into effect October 1, 2024.  But we need to interrupt our regularly-scheduled blog post to share our take on breaking news about Title IX.  

If you have watched KSB’s June 25 Title IX Webinar, you know that federal courts in Louisiana and Tennessee issued decisions holding that the US Department of Education cannot enforce the new Title IX regulations in ten specific states.  (If you couldn’t watch it live, it was recorded and can be accessed on the KSB portal or by emailing shari@ksbschoollaw.com.)  After our webinar, a federal district court in Kansas enjoined enforcement of the new regulations in four additional states, including Wyoming.  Nebraska and South Dakota are parties to litigation in a federal court out of Missouri, and the judge in that case will rule on that lawsuit sometime in the coming weeks.  We’ll explain below why the new Kansas decision doesn’t really change our advice to schools about Title IX policies and procedures.   

Some of the commentators who have written about all this litigation have talked about the possible implications of the US Supreme Court’s recent decision in Loper Bright Enterprises v. Raimondo for the Title IX regulations.  In Loper Bright, the Court reversed what's been known as “Chevron deference,” a 1984 case that said judges should generally defer to federal agencies when rules they make are reasonable, and the enabling law was silent or ambiguous. Overturning Chevron does NOT mean all regulations are suddenly out the window.  In fact, the Court said the opposite in the opinion.  The Loper Bright decision is a pretty big deal to nerdy lawyers, but schools shouldn’t think that it is a get-out-of-compliance-free card.

So now what? Our advice to our clients remains the same.  The changes to the Title IX process and procedures are friendly to schools.  Reducing the number of administrators that must be involved in responding to allegations of sex harassment—and giving schools more flexibility in timeframes—are welcome improvements.  Most of the litigation around Title IX is about bathrooms, locker rooms, and whether the term “sex” includes gender identity and sexual orientation.  We believe school policies should focus on the process, not the politics.  We wrote our policy the way we did for a reason, in anticipation of these legal developments.  You should train your staff and your Title IX team, and that training should be practical.  It should be focused on how best to serve students consistently day-to-day in 24-25 based on what we do know, not what we might know in a week, a month, or a year.  KSB plans to stick to the same training schedule, adapted to make sure you’re prepared no matter who is “right.”  But if you have questions about policies or training, give us or your school attorney a call.

Now, back to our regularly-scheduled programming . . . . 

UGG.  On April 4, 2024, the Biden-Harris Administration announced the release of updates to the federal Uniform Grant Guidance.  The changes go into effect October 1, 2024 and will impact grant awards from that date going forward.  The administration also released a memorandum summarizing the changes here.  While many of the changes impact the manner in which federal agencies award grants, there are several changes (all of which are good for schools) school administrators should review.

1. The UGG increases the value of equipment at the end of a grant period that “may be retained, sold, or otherwise disposed of with no further responsibility to the Federal agency” from $5,000 to $10,000.

2. The same goes for unused supplies that increases from $5,000 to $10,000.

3. The single audit threshold increases from $750,000 to $1,000,000. (School auditors rejoice!)

4. If you utilize the de minimis indirect rate for grants, that amount increases from 10% to 15% for indirect costs.

5. The amount of indirect costs increases from $25,000 to $50,000.

What are the next steps you should take to ensure compliance? Review your school policies regarding purchasing using federal grant funds.  The revisions also include changes to language formerly used in the UGG.  For example, the UGG now uses the term “simplified acquisitions” instead of “small purchases.”  It also includes veteran-owned businesses on the list of preferred vendors.  KSB policy service subscribers received updated policies containing these changes during the 2024 updates last month.  If you adopt those, your policies will now reflect the updated terms. 

If you have any questions regarding Title IX or grant purchasing compliance, do not hesitate to contact any of the KSB attorneys at ksb@ksbschoollaw.com or 402-804-8000. 

Money, Money, Money, Must be Funny . . . in the Rich Man’s Federal Government’s World

April was a busy month for the federal government.  They released the new Title IX regs, Pregnant Workers Fairness Act, revisions to the Uniform Grant Guidance, changes to the USDA School Nutrition Standards, and last, but not least, the Fair Labor Standards Act overtime rules.  (Wee!  Now this is why you all went into education, right?)  This change to the FLSA becomes effective July 1, 2024 with an even larger change coming in January 2025, so now is the time for superintendents and business managers to verify compliance. 

As a reminder, the Fair Labor Standards Act divides all employees  into two categories: “exempt” or “non-exempt.”  If a staff member is exempt, a school district is allowed to place the exempt employee on a salary to compensate the employee for all of the hours worked, rather than requiring the employee to keep track of the employee’s hours and pay overtime if earned.  Under the FLSA, there are three main exemption categories that apply to school employees (executive, administrative, or professional).  To fall within one of the exempt classifications, an employee must meet each of the three requirements as outlined by the DOL: 1) be paid a salary, meaning that they are paid a predetermined and fixed amount that is not subject to reduction because of variations in the quality or quantity of work performed; 2) receive a salary above a minimum amount set by the Department of Labor; AND 3) primarily perform exempt (executive, administrative, or professional) duties, as provided in the Department’s regulations.  

So what has changed?  As of July 1, 2024, the salary test increases from $684 per week to $844.  In other words, the minimum weekly salary under prong 2 of the exemption test has increased.  This is the equivalent of $43,888 per year.  You might be thinking - that isn’t horrible!  But wait - that amount jumps again in January.  Starting in 2025, the salary level must be $1,128 per week ($58,656 per year).  After that, the minimum salary level will automatically update periodically based on certain wage data.  If you recall, the Obama administration proposed a similar change that was promptly stalled through litigation.  On May 22, 2024, a group of plaintiffs filed a lawsuit in the Eastern District of Texas challenging the January 1, 2025 increase (but not the one set to go into effect on July 1).  We will keep an eye out how this litigation unfolds.

One more quick reminder: certificated/certified educational employees (e.g., teachers, administrators) are excused from the salary minimum under the FLSA, so they are still considered exempt even if they are paid a salary lower than the new thresholds.  However, for all of your non-teaching staff currently on salary, you’ll have some analysis to do and decisions to make.    

What are your next steps?  

1. Review your non-exempt and exempt classifications. Classified employees who might be exempt typically include head custodians, food service directors, transportation directors, etc.  It typically will not include administrative assistants, paraprofessionals, and non-management kitchen and custodial staff members.  Analyze  your planned salary for exempt employees and ensure it will be compliant both in July 2024 and January 2025.  If not, you should either (1) raise the employee’s salary to meet the minimums or (2) reclassify the employee as non-exempt, require the employee to track hours, and pay overtime for hours worked over 40 per week. (Don’t forget about those pesky extra hours spent driving bus, coaching, etc.!) 

2. Review your salaries for related service providers.  Positions such as PT/OT/SLP/school psychologist are not really mentioned in the FLSA regulations despite the critical role they play in a child’s education.  Court cases have routinely classified these positions under the “learned professional exemption,” but there is very little guidance on whether those employees are “teachers” exempted from the minimum salary thresholds. 

Let’s assume for a second that positions like your school psychs and SLPs aren’t “teachers” and must be paid the new minimum salary amount.  We believe schools are within their legal rights to calculate weekly pay based on actual workweeks, even if your related service specialists (like other certificated staff) are typically paid over 12 months.  This is supported by the FLSA Field Operations Handbook issued by the DOL.  By dividing those employees’ salary by their number of  workweeks, many districts are likely compliant with the minimum salary thresholds.  For easy math, assume a relatively new SLP is making $50,000 for work performed in 42 workweeks.  That’s a salary of $1,190 per week, sufficient to meet both the July and January salary minimums.      

If the FLSA gives you anxiety, don’t fear!  Listen to this classic Abba hit to relax (the title and song are a nod to our more seasoned administrators).  If you are unsure or believe you may not be compliant given these new salary thresholds, you should contact your school attorney to discuss your options.  Give us a call at 402-804-8000 or shoot us all an email at ksb@ksbschoollaw.com.  

Are The Courts Blocking a New Era for Title IX Regulations?

It seems like the only thing that has lasted longer than Taylor Swift’s Eras Tour is the ongoing saga of the Biden Administration’s attempt to revise the Title IX regulations. The curtain was supposed to go up on the 2024 regulations on August 1, but now at least two federal judges have told the US Department of Education that “We Are Never Ever Getting Back Together” on these regulations.  Where do we stand now? Well, grab your popcorn and let’s “Speak Now.”

The Courts To US Department of Ed: “You Need to Calm Down”

On June 13, 2024, a federal court in Louisiana decided to "Shake It Off" and temporarily blocked the new Title IX rules in Idaho, Louisiana, Mississippi, and Montana. Then on Monday June 17, a federal court in Kentucky decided to join the "Bad Blood," extending the block to Indiana, Kentucky, Ohio, Tennessee, Virginia, and West Virginia. With decisions pending in lawsuits affecting 16 other states, it looks like we’re in for a "Long Story Short."

Nebraska and South Dakota have joined a coalition of six state attorneys general who have filed suit in the U.S. District Court for the Eastern District of Missouri.  The attorneys in that case just submitted their final briefs to the judge on June 14, and the parties have asked for oral argument.  That case should be decided sometime in the next six to eight weeks.  

For its part, Wyoming has joined a four state group that filed a 1,085 page complaint in the Kansas Federal District Court.  (The judge likely read that long Complaint and said “I Knew You Were Trouble” when the parties walked into court.)  The Kansas judge has not yet set a briefing schedule, so it is unclear when the first round of that litigation will be completed.

Each of these federal lawsuits will likely produce appeals to their respective circuit courts, so we won’t have an "End Game" to these proposed regulations until the Supreme Court rules or there is a change in administrations.  That means we are almost certain to start the school year with schools in some states obligated to comply with the new regulations and others still governed by the 2020 regulations.  (Schools in all states can roll their eyes and tell OCR “Look What You Made Me Do”).

So Now What? 

At this point, we are advising KSB clients to get up to speed on the new regulations, the old regulations, and the differences between the two.   We provided an updated Title IX policy to our policy service subscribers with our 2024 updates.  Notice that the new policy does not specifically address the topics generating all of the news headlines and litigation (like gender identity).  Schools that adopt the new policy will continue  to address these issues at the local level as they arise, given the unique facts of each situation.  The new regulations have not been enjoined in any KSB client states (yet).  We will closely monitor that litigation and provide options for compliance if and when those cases are decided.   

What About training?

KSB plans to streamline both our in-person and on-demand Title IX team training to get administrators “Ready for It” no matter what the courts do.  We’ll include a refresher on the 2020 Title IX rules, cover the basics of sexual harassment grievance processes, and add the mandated topics from the 2024 rules. This way, your Title IX team won’t forget their training by the time they need it—if they need it at all. You’ll be ready for whatever comes your way, and you won’t have to sing “All Too Well” about forgotten regulations.

The new regulations also require all staff be trained on sex harassment (which we have recommended ever since 2020, since any staff member who knows about but doesn’t report possible sex harassment can create liability for your district.)  So when your “Begin Again” for the start of the 2024-25 school year, you should make some time for either in-person or on-demand training for all staff (including classified staff, board members and community coaches).

From “Speak Now” to “Evermore”

Until schools are “Out of the Woods” we’ll keep blogging about the Title IX conundrum.  On Tuesday, June 25, we will host a three hour webinar that will give you more detail on the litigation, explain the new regulations, compare them to the old regulations and give you practical advice on how to use this “Cruel Summer” to get ready for the 2024-25 school year.    

If you have questions, contact one of the KSB attorneys or your district’s legal counsel.  KSB School Law will try to help you be “Fearless” in complying with whatever the government throws at us.

If I Could Turn Back Time, I Would Check More Off My To Do List?

The year is 1989.  Cher releases this hit.  Many of our school administrators were baby teachers (or maybe literal babies).  The words of Cher echo into our summer to-do lists…if I could turn back time.  With the never-ending list of school building projects, end of fiscal year reporting, and the preparation for a new cadre of staff, it is easy to let yearly tasks escape the forefront.  As you prepare for the FY2025 year, here are a few items to remember:

Title IX: The new regs are currently set to go into effect August 1, 2024.  However, two federal district courts have issued temporary injunctions preventing the new regs from going into effect in their states, and there is a challenge to the new regulations pending in the United States Court of Appeals for the Eighth Circuit.  Districts should monitor the Eighth Circuit litigation closely (we’ll keep you up to date with our blog) and be proactive and update board policy prior to this date.  Additionally, the new regulations require all staff training annually and specific training for the Title IX team (coordinator, investigator, decision-maker, appellate decision-maker).  Regardless of what happens with the litigation, the lawsuits do not not mean you shouldn't train. Every Title IX team needs annual training on properly handling civil rights cases, and folks knowledgeable about what happens behind the scenes at OCR are predicting that the federal government will scrutinize any school district, college, or university whose Title IX Coordinator hasn't received significant training on the new rules this summer.  SASD is offering in-person Title IX team training.  Additionally, KSB School Law has on-demand training videos for all staff.  More information is available here.

Key Required Notices for Student Handbooks:  Principals should be reviewing student handbooks to ensure the following are contained in the materials: notice of non-discrimination, FERPA rights, Protection of Pupil Rights Amendment information, Child Nutrition Programs required information, notice of policy on opting out of assessments as required by ESSA, and asbestos management plan. 

Key Required Notices for Posting: Business managers should be verifying the most recent FLSA, FMLA, USERRA, Employee Polygraph Protection Act, Pregnant Workers Fairness Act, and Discrimination/Equal Employment Opportunity posters are in locations visible to staff.  More information is available here.  Also, there are new per diem travel rates which are effective July 1, 2024 available here.  

Staff In-services: With our calendars already filling up, now is the time to book staff in-services with KSB School Law for the 2024-2025 calendar.  Potential staff in-service topics include: Section 504 compliance, Special Education and IDEA compliance, professionalism/ethics, mandatory child abuse reporting, digital citizenship for teachers/staff social media usage, FERPA, and legal hot topics.  We also can facilitate trainings over Zoom, if needed. 

July Annual Meeting Requirements: Many boards designate the law firms(s) that they will work with during the next calendar year.  There is no legal limitation on the number of law firms a board may designate so boards can authorize more than one firm.  While such action is not technically required, it does clarify a school’s authority to work with legal counsel.  A sample board agenda and motion for designating a law firm is available here.  

The Board should also designate a bank, elect officers, have newly elected board members take an oath, administer the oath to the business manager, and designate a legal newspaper.  If you are a small district, remember to review the amended law regarding legal newspapers at SDCL 17-2-2.2 which was a result of SB 75.

As always, do not hesitate to reach out to the KSB crew at ksb@ksbschoollaw.com with any questions or to book a staff in-service. 

OMG, EEOC! PWFA is Here to Stay - LOL at Your Old Procedures

TL;DR, the Pregnant Workers Fairness Act (PWFA) went into effect on June 27, 2024; however, the EEOC released its final regulation on the law which go into effect on June 18, 2024.  This new law is as if the FMLA and ADA had a baby.  (What a great analogy considering the content of the new law!)  School administrators, particularly business managers and principals, will need to be familiar with the legal requirements of the PWFA.  

Essentially, school districts (who are considered covered entities under the law) will need to engage in an interactive process, very similar to the process utilized under the ADA, to determine reasonable accommodations which may be granted for conditions “related to, affected by, or arising out of pregnancy, childbirth, or a related medical condition.”  Similar to the FMLA, a school district employee does not have to use specific words to request an accommodation and begin the interactive process.  School administrators will need to be cognizant of buzzwords which may indicate the need for this process.  For example, if a teacher tells her principal she is experiencing morning sickness every day during first period, the principal should begin the interactive process under the PWFA at that point.  

A school district may deny a request for an accommodation if the accommodation causes an “undue hardship” which is defined as causing significant difficulty or expense.  (Make sure you document any denial!)  The EEOC gives a list of examples of reasonable accommodations such as: longer or more flexible breaks to eat and drink, providing a stool to sit on, changing uniform or dress code, changing a work schedule, telework, temporary suspension of one or more essential functions of the job, and leave for health care appointments.  Additionally, there are a list of modifications which the EEOC has deemed to be reasonable in virtually all cases.  Those accommodations include: allowing the employee to carry or keep water near and drink as needed, allowing the employee additional restroom breaks as needed, allowing the employee to sit or stand as needed, and allowing the employee eating and drinking breaks as needed.  

Please note the PWFA does not replace any existing law, and schools must still comply with the requirements of the FMLA and ADA.  From a practical standpoint, the PWFA gives more expansive rights to pregnant employees and those affected by pregnancy than the ADA or FMLA.  While the FMLA provides job-protected leave, the PWFA is intended to provide on-the-job accommodations.  

School administrators need to be familiar with this new law and begin implementation in June.  As a reminder, your district should also have the most recent EECO poster displayed prominently in your schools.  To assist administrators with compliance, we have created an interactive process template with notes, memorandum walking through the legal requirements, and related flowchart for purchase.  If you are interested, shoot ksb@ksbschoollaw.com an email.  Don’t hesitate to give us a call with questions regarding the PWFA at 402-804-8000.

Your Title IX Training Plan: the Tortured Administrators’ Department

You know from our blog last week that the Biden administration has released its long-awaited Title IX regulations, updating the law that prohibits sex discrimination in schools.   These regulations were set by the feds to go into effect on August 1, 2024.  

The first of what could be many legal challenges to the regulations has already been filed in court, which was joined by Governor Noem and Attorney General Jackley.  We’re also aware that Secretary Graves has issued guidance to schools to keep this litigation in mind when making policy decisions. We agree that schools should keep an eye on how those lawsuits progress, but there are many reasons to continue moving forward with your plans to implement the new regulations even with these lawsuits pending. Refusing to implement the new regulations could cause risk for schools if the litigation is unsuccessful, and we believe there are ways schools can structure their policies so as to comply with both state law and the new regulations.  We’ll unpack the status of the litigation and the details of these regulations at our Title IX Webinar on June 25.  

But we know you’re already thinking about the most serious headache for school administrators: how do we train everyone before August 1? The new regulations require that all school employees, including board members and volunteers, be trained annually on their obligations to identify, report, and respond to allegations of sex discrimination.  Additionally all members of your school’s Title IX team will require updated training on the new regulations (and annual training moving forward).

KSB’s In Person Title IX Training 

All Staff Training

One of the KSB lawyers will be delighted to come to your school this fall to conduct a basic "all employee" training for 60-90 minutes, which we will customize for each school. We can do just the required Title IX training or add in other staff inservice topics, depending upon the length of time.

Title IX Team Training

We would also love to come train your Title IX Team in person.  This training would include anyone who will be involved in responding to Title IX allegations.  Once trained they will be able to serve on any role of the Title IX Team (Title IX Coordinator, Investigator/Decision-Maker/Informal Resolution Officer/Appellate Decision-Maker.   Last time around, many school districts got together with other area administrators and got trained as a group.  We have pricing that will encourage that collaboration.   We will also have discounted pricing available for ESUs who want to offer this training to their member school districts in person.  This training will be available on a first come, first serve basis.

Regional Trainings

We are working with various state organizations with efforts to set up in person regional training.  We will send out more details on those trainings as they are available, but we are generally planning for three trainings across the state toward the end of July. 

KSB’s Video On-Demand Title IX Resources 

On-Demand All Staff Training 

KSB will bring your staff up to speed so they can perform their duties to the best of their ability and with fidelity to the law.  Our portal offers a simple training video that you can have each employee, board member, and volunteer watch on demand.  Our system will also allow the district administrator to obtain a report to track who has watched the video.  Each employee will also receive a certificate of completion, which then can be transferred to future employers as well.  This system will also allow new hires during the 2024-25 school year to receive the same training that their peers received at the beginning of the school year. 

Title IX Team Training

We are designing similar on-demand training for your Title IX Team.  Anyone who will be involved in responding to Title IX allegations can participate in this training and will then be able to serve on any role of the Title IX Team.   Again, each administrator will receive a certificate of completion, the district will be able to obtain a report to see the progress of each person assigned to take the training.  

These on-demand training videos will be available to view beginning July 15th.  We will provide the individual in your district responsible for tracking training a link with instructions on how to obtain the records.

Your Title IX Training Plan: the Tortured Administrators’ Department

You know from our blog last week that the Biden administration has released its long-awaited Title IX regulations, updating the law that prohibits sex discrimination in schools.   These regulations were set by the feds to go into effect on August 1, 2024.  

The first of what could be many legal challenges to the regulations has already been filed in court. We all should keep an eye on how those lawsuits progress, but there are many reasons to continue moving forward with your plans to implement the new regulations even with these lawsuits pending. We’ll unpack the status of the litigation and the details of these regulations at our Title IX Webinar on June 25.  

But we know you’re already thinking about the most serious headache for school administrators: how do we train everyone before August 1? The new regulations require that all school employees, including board members and volunteers, be trained annually on their obligations to identify, report, and respond to allegations of sex discrimination.  Additionally all members of your school’s Title IX team will require updated training on the new regulations (and annual training moving forward).

KSB’s In Person Title IX Training 

All Staff Training 

One of the KSB lawyers will be delighted to come to your school this fall to conduct a basic "all employee" training for 60-90 minutes, which we will customize for each school. We can do just the required Title IX training or add in other staff inservice topics, depending upon the length of time.

Title IX Team Training

We would also love to come train your Title IX Team in person.  This training would include anyone who will be involved in responding to Title IX allegations.  Once trained they will be able to serve on any role of the Title IX Team (Title IX Coordinator, Investigator/Decision-Maker/Informal Resolution Officer/Appellate Decision-Maker.   Last time around, many school districts got together with other area administrators and got trained as a group.  We have pricing that will encourage that collaboration.   We will also have discounted pricing available for ESUs who want to offer this training to their member school districts in person.  This training will be available on a first come, first serve basis.

KSB’s Video On-Demand Title IX Resources 

On-Demand All Staff Training 

KSB will bring your staff up to speed so they can perform their duties to the best of their ability and with fidelity to the law.  Our portal offers a simple training video that you can have each employee, board member, and volunteer watch on demand.  Our system will also allow the district administrator to obtain a report to track who has watched the video.  Each employee will also receive a certificate of completion, which then can be transferred to future employers as well.  This system will also allow new hires during the 2024-25 school year to receive the same training that their peers received at the beginning of the school year. 

Title IX Team Training

We are designing similar on-demand training for your Title IX Team.  Anyone who will be involved in responding to Title IX allegations can participate in this training and will then be able to serve on any role of the Title IX Team.   Again, each administrator will receive a certificate of completion, the district will be able to obtain a report to see the progress of each person assigned to take the training.  

These on-demand training videos will be available to view beginning July 15th.  We will provide the individual in your district responsible for tracking training a link with instructions on how to obtain the records.