Articles in the Council of School Attorneys category

School attorneys get advice on voucher litigation

As school districts and states across the country gear up to face potential school voucher litigation, lawyers from Louisiana and Arizona offered advice and lessons learned to members of NSBA’s Council of School Attorneys (COSA) on Friday during the second day of the 2014 School Law Seminar in New Orleans.

Robert Hammonds of Hammonds, Sills, Adkins & Guice, of Baton Rouge, La., and Christopher Thomas, with Arizona School Boards Association, were the featured speakers at the Friday morning session.

Hammonds represented the Louisiana School Boards Association in the state Supreme Court case against the state’s voucher program. LSBA was a plaintive in the case. The court ruled in 2013 that the voucher program was unconstitutional.

“I’ve attempted to give you some options if you are confronting a voucher challenge,” said Hammonds. “These are strategies that we used.”

The Louisiana voucher law allowed money from the state public education funding formula to go directly to private schools for students who opted out of the public schools. The state constitution says the state funding board was charged with equitably allocating funds to public schools.

“We said: ‘How can you use public money to fund nonpublic schools?’ We challenged based on state constitution,” said Hammonds. “Many of your states have similar provisions in your constitution. If you get in that situation, those provisions are there.”

Another option to fight vouchers: desegregation orders. Hammonds said some districts have successfully challenged voucher programs by proving that such programs prevented them from following their court-ordered desegregation plans.

A third option is turning to an independent state auditor, such as the one in Louisiana. Because this position is independent of partisan politics, he or she can evaluate the voucher program on its fairness and merits. The Louisiana auditor found many issues with the state voucher program. “If you have similar position in state, look to it,” Hammonds said.

Thomas talked about the choice and voucher cases in Arizona. He warned the audience of a new voucher tact: empowerment scholarship accounts. These allow parents of certain groups of children, such as those with IEPs, to send their children to private schools and the state will pay the tuition.

A lower court validated the program, saying the money went to parents, not private schools. The Arizona Supreme Court recently declined to hear the case, leaving the lower court ruling intact. Proponents now are gearing up to expand access to the programs. Said Thomas, “It will be coming to you.”

The School Law Seminar continues through Saturday.

 

Kathleen Vail|April 4th, 2014|Categories: Council of School Attorneys, NSBA Annual Conference 2014, School Law, School Vouchers|Tags: , , |

Obama administration lawyers open School Law Seminar

Two lawyers from the Obama administration answered questions from Council of School Attorneys (COSA) members at the opening general session Thursday of the 2014 School Law Seminar in New Orleans. The meeting is held in conjunction with NSBA’s Annual Conference.

Assistant Secretary for Civil Rights at the U.S. Department of Education Catherine Lhamon and Anurima Bhargava, chief of the educational opportunities section, Civil Rights Division, at the U.S. Department of Justice, took questions from school district lawyers on a wide range of topics, including reasons for OCR investigations and the recent guidance on students with disabilities and extracurricular activities.

Lhamon spoke briefly about the mission and purpose of OCR. “Education is a civil rights issue,” she said. “That is the work we are doing at the Department of Education. We hope we can work together to deliver that justice.”

COSA lawyers lined up to ask questions of the two women. One lawyer wanted to know what she should do about what she termed “frequent flyers” — employees who file constant complaints and grievances. “It’s burden for us to get the data,” she said. “Every one of those [complaints] have come back as unfounded. Is there anything we can do to bring to your attention that this is an every-month occurrence?”

OCR is required by law to investigate any compliant, said Lhamon, “but we are looking at ways to ease” the frequent flyer problem.

Bhargava noted that her office did not have the same legal obligation to investigate every complaint. “We know there are the frequent flyers,” she said. “We try to be mindful of that. We are looking for ways to coordinate so you are not answering multiple complaints.”

Another question was about the school board obligation to look into matters such as student disciplinary decisions, which boards traditionally leave to district staff.

“We haven’t put out guidance about what boards should do,” Lhamon answered. “We want our school staff, boards, parents, and teachers to be thinking about what to ask. Boards do defer to staff, but you can ask and look underneath. Boards can make the decision when and where to ask those questions.”

Bhargava encouraged board member to look at the OCR data. “The data helps identify where there are issues. Everyone is empowered to use the data and ask questions.”

The School Law Seminar runs through Saturday.

 

Kathleen Vail|April 4th, 2014|Categories: Conferences and Events, Council of School Attorneys, NSBA Annual Conference 2014, School Law|Tags: , , , , |

NSBA addresses new report on cloud computing in public schools

The rapidly-evolving web-based services that have enabled school districts to streamline record keeping and make timely, data-driven decisions are also creating big challenges for safeguarding student information and preventing unauthorized use by third-party providers, a new report says.

“Cloud computing” services have helped school districts store and manage vast amounts of information, says the study released Friday by the Center on Law and Information Policy at Fordham Law School. But “we’re worried about the implications for students over time, how their information can be used or misused,” Joel R. Reidenberg, a Fordham law professor and the report’s lead author, told The New York Times.

The issue also concerns National School Boards Association’s (NSBA) Council of School Attorneys (COSA), which earlier this year set up a Cloud Computing and Student Privacy Working Group that plans to issue two resources in the coming months: the first a comprehensive legal primer for school attorneys, and the second an issue-spotting guide for school board members. Both publications aim to raise operational awareness for policy makers. COSA Director Sonja H. Trainor participated in a forum on the issue at Harvard University’s Berkman Center for Internet & Society in November and was among about 20 education, industry, and data experts asked to discuss the report’s recommendations at Microsoft’s Washington, D.C., offices.

The report, Privacy and Cloud Computing in Public Schools, notes that many school districts employ cloud-based services, but cautions that policies and contracts are not transparent to the public, and appear to lack some important privacy protections. It is based on information provided by 20 school districts.

The report estimated that 95 percent of the reporting school districts “rely on cloud services for a diverse range of functions, including data mining related to student performance, support for classroom activities, student guidance, data hosting, as well as special services such as cafeteria payments and transportation planning.” Yet the report estimated that 20 percent of the reporting districts do not have policies governing the use of online services, and many districts have significant gaps in their contract documentation no student privacy provisions.

Only 25 percent of the responding districts inform parents that they are using cloud services to store information, the report said. “Fewer than 7 percent of the contracts restrict the sale or marketing of student information by vendors,” the report said, “and many agreements allow the vendors to change the terms without notice.”

In an interview with School Board News Today, N. Cameron Russell, the Fordham Law Center’s Executive Director and a member of the research team, said the report is based on contracts and other documents received from the 20 school districts studied, which vary in size and are located throughout the country. He emphasized that the practices concerning safeguarding of information often go beyond the language in the contracts — something the Software and Information Industry Association emphasized in commenting on the study.

Still, the report’s authors expressed concern over the lack of specific language in many vendor contracts regarding such issues as maintaining the privacy of student data and preventing its commercial use.

Rapidly evolving web-based technologies such as cloud computing offer the potential for significant advances in individualized instruction and assessment – and many school districts are on the cutting edge of these innovations, said NSBA General Counsel Francisco M. Negrón Jr.

“Schools want to help students succeed, and web-based technology is helping them do this in innovative and creative ways,” Negrón said. “At the same time, it is important to inform and engage parents and communities about these developments and ensure vendor contracts protect student privacy and address restrictions on third-party use of data.”

The report concluded with several recommendations for school districts. Among them are putting “the existence and identity of cloud service providers and the privacy protections for student data’ on district websites and “establishing policies and implementation plans for the adoption of cloud services by teachers and staff,” including in-service training and an easy mechanism for teachers to adopt and propose technologies for instructional use.

 

Lawrence Hardy|December 16th, 2013|Categories: Board governance, Computer Uses in Education, Council of School Attorneys, Data Driven Decision Making, Educational Technology, Governance, School Law, School Security|

COSA seminar guides school attorneys on newest legal trends and challenges

School attorneys from across North America learned about new topics and trends in education law at the National School Boards Association’s Council of School Attorneys’ 2013 School Law Practice Seminar, held Oct. 10-12 in Nashville, Tenn.

“The event’s program gave school attorneys an opportunity to dive deep into issues they face every day in their busy practices, and to look at some issues from a fresh perspective,” said COSA Director Sonja Trainor. “Our attendees were particularly engaged in the networking events, where they interacted with colleagues and corporate partners facing the same issues.”

Hot topic sessions tackled student privacy in the cloud computing era, armed guards in schools, and the latest on the Affordable Care Act (ACA). The student privacy panel included technology law expert and COSA member Dotti Bollinger, Microsoft’s Steve Mutkoski and COSA board member Phil Hartley, who guided the audience through the evolving legal standards affecting student data privacy in the cloud. Former COSA Chair Tom Wheeler and COSA member Joe Tanguma provided an overview of liability standards for schools faced with violence, and noted the widely differing approaches taken by various states regarding arming school staff.

COSA member Chris Stevenson and NSBA Senior Staff Attorney Leza Conliffe presented attendees with an update on employer-related issues of the ACA, known as Obamacare. They discussed the implications of the employer mandate, a.k.a. the “Pay or Play” penalties, and the upcoming requirements the latest IRS rules place on school districts, as employers, in the areas of collecting and disclosing information about insurance coverage of all of its employees, their spouses and dependents, and the collection of an additional Medicare tax for a district’s high wage earners.

Attendees also addressed every-day issues such as involuntary resignation and constructive discharge, intellectual property creation and fair use, and litigation practice – including a poignant session on working with child witnesses. They heard COSA member D. Scott Bennett, whose son suffers from a severe form of autism, describe the fears and priorities of parents of disabled students.

“Autism presents unique challenges, and the parents’ well-being tends to ebb and flow depending on the child’s symptoms and behavioral condition,” Bennett wrote in a recent research paper. He advised school attorneys and educators to collaborate with parents and show them multiple strategies to foster the best educational experiences for students with Autism Spectrum Disorder and other disabilities.

Attendees also participated in interactive sessions addressing recent guidance from federal agencies on issues such as participation of students with disabilities in athletics and the appropriate use of pre-employment criminal background checks.

State school board association attorneys attended pre-seminar meetings on Oct. 10. At a lunch event on Oct. 11, attendees found their way to roundtable discussions on many different topics. Reauthorization of the Individuals with Disabilities Education Act, student data and cloud computing, international student travel, and labor negotiations were particularly popular discussion topics.

NSBA Executive Director Tom Gentzel noted the integral role COSA plays in the advocacy work of NSBA at the opening general session of the conference. NSBA President David Pickler, a practicing attorney, joined his colleagues at the practice seminar. At the seminar reception hosted by Lewis King Krieg & Waldrop and the Tennessee Council of School Board Attorneys, he welcomed attendees to his home state and invited COSA attorneys to join NSBA’s grassroots work to support public education.

NSBA General Counsel Francisco M. Negrón Jr. updated school attorneys on NSBA’s Legal Advocacy Agenda. He highlighted NSBA’s amicus work in recent and upcoming Supreme Court cases addressing diversity in student assignment and employer liability for claims of discrimination. He also noted NSBA’s recent amicus work in federal courts of appeal in student-related cases in which the Departments of Justice and Education have filed amicus briefs opposing the school district’s position.

COSA members and NSBA staff also took a moment to remember former NSBA General Counsel Gus Steinhilber, who passed away in August. He was remembered as a kind and generous friend, an avid outdoorsman, and a lifelong supporter of public schools and the attorneys who advocate on their behalf.

For more information on COSA events, go to www.nsba.org/SchoolLaw/COSA.

Joetta Sack-Min|October 18th, 2013|Categories: Affordable Care Act, Conferences and Events, Council of School Attorneys, Diversity, School Law|Tags: , , |

COSA annual conference examines diversity, school law issues

Special education, employment law, school safety and diversity are the hot topics this week at the National School Boards Associations’ (NSBA) Council of School Attorneys’ (COSA) annual School Law Practice Seminar in Nashville, Tenn.

“COSA’s fall seminar is our chance as attorneys to dig deep into the weeds of school law issues facing our public school clients, to discuss approaches and solutions with colleagues, and to get an update on the national legal advocacy work of the National School Boards Association,” said Allison Schafer, the 2013-14 COSA Chair and Legal Counsel for the North Carolina School Boards Association.

In the opening discussion, Metropolitan Nashville Public Schools Superintendent Jesse Register will discuss his plans to move beyond desegregation litigation to a groundbreaking diversity management plan. The accompanying panel will also discuss the broader issue of diversity in school settings after the U.S. Supreme Court ruling in Fisher v. University of Texas at Austin as well as upcoming cases for the 2013-14 term.

Other COSA sessions will be led by experienced school attorneys on relevant issues such as “Student Privacy Concerns in the Cloud Computing Era,” “Responding to the EEOC’s Guidance on Criminal Background Checks,” “the NSBA Legal Advocacy Agenda,” and “Adventures in Ethics.”

Joetta Sack-Min|October 9th, 2013|Categories: Announcements, Board governance, Conferences and Events, Council of School Attorneys, School Law, School Security|Tags: , |

New school law webinars examine the Family Educational Rights and Privacy Act

The National School Boards Association’s (NSBA) Council of School Attorneys (COSA)  is hosting a two-part webinar series on the Family Educational Rights and Privacy Act (FEPRA). Register today to learn more about this important topic.

Here are details on the sessions:

September 11, 2013 – FERPA Session 1: The Family Educational Rights and Privacy Act Inside and Out

Veteran in-house counsel Margaret-Ann Howies presents an engaging look at FERPA through the lens of a very real and traumatic school shooting. Here’s your chance to learn – or brush up on – the ins and outs of the federal law that permeates school district operations, FERPA. We’ll start with the basics: What is an education record covered by FERPA? When can personally identifiable information about a student be released and to whom? Are emails education records? Then, we’ll move into recent questions: May a school district store student records in “the cloud?” When does an “emergency” cease, thereby triggering the consent requirement? What if the student is deceased? What if the student has changed names? Become FERPA conversant in just over an hour.

1:00 p.m. – 2:15 p.m. (EDT)

Host: Sonja Trainor, Director, NSBA Council of School Attorneys

Presenter: Margaret-Ann Howie, General Counsel, Baltimore County Public Schools

January 15, 2014 – FERPA Session 2: School Videos and Student Privacy – What’s the Final Rule?

Few issues have caused such widespread consternation for school districts and their attorneys than the following: to what extent are school videos education records covered by FERPA? NSBA requested clarification from the U.S. Department of Education years ago. Join a seasoned school lawyer for a distillation of the current state of the law and “unofficial” guidance from the Department’s Family Policy Compliance Office.

Time: 1 p.m. – 2:15 p.m. (EST)

Host: Sonja Trainor, Director, NSBA Council of School Attorneys

Presenter: Sarah Craven Clark, Deputy Director of Legal Services, Ohio State Association Counsel

Learn more and register now.

 

 

Joetta Sack-Min|September 10th, 2013|Categories: Council of School Attorneys, Federal Programs, Governance, School Law|Tags: , , , , |

NSBA mourns death of longtime colleague Gus Steinhilber

Gus Steinhilber

Gus Steinhilber

August W. Steinhilber Jr., NSBA’s former General Counsel, Associate Executive Director, and head of NSBA’s Office of Federal Relations, died on August 20 at age 81.

Steinhilber, who was known as “Gus,” helped build NSBA’s Federal Relations Network and greatly expanded the organization’s lobbying efforts on Capitol Hill during the Carter and Reagan administrations. He worked at NSBA from 1968 to 1998, and prior to NSBA, he served in the U.S. Department of Health, Education, and Welfare as the deputy assistant commissioner of education for legislation.

“Over the 28 years we worked together he fought every day for cause of public education and loved every minute of it,” said Michael A. Resnick, NSBA’s Associate Executive Director for Federal Advocacy and Public Policy.

During his tenure as NSBA General Counsel, he filed over 50 amicus briefs in the United States Supreme Court, advanced the organization’s legal advocacy efforts, and provided leadership for NSBA’s Council of School Attorneys (COSA).

After retiring from NSBA, Steinhilber continued to be involved in school law through NSBA’s Council of School Attorneys, and he also worked as a counsel for the Maryland law firm of Reese & Carney, LLP. In 2005, COSA honored Steinhilber with its Lifetime Achievement Award for exemplary leadership and distinguished service. He is remembered as a strong advocate for public education and the school law profession.

Joetta Sack-Min|August 23rd, 2013|Categories: Announcements, Council of School Attorneys, Federal Advocacy, School Law|Tags: , , |

Register today for 2013 COSA conference in Nashville

The National School Boards Association’s Council of School Attorneys (COSA) will host its 2013 School Law Practice Seminar Oct. 10 to 12 in Nashville, Tenn. Join other school attorneys from across the U.S. and Canada for the premier school law event, where participants will drill down to the meaty issues, discuss shared challenges, and grow as school attorneys and colleagues.

Highlights of the event will include early bird sessions, which feature specialized and timely discussions on special education and autism, and employment law. The seminar’s opening general session, “From Desegregation to Diversity,” will be presented Thursday morning by John W. Borkowski, Hogan Lovells, Jesse Register, Metropolitan Nashville Public Schools and Leonard Stevens, Leonard Stevens Consulting. Friday morning kicks off with “Evaluating Mental Health Needs in Light of Safety and Security Concerns;” NSBA’s Legal Advocacy Agenda with NSBA’s General Counsel, Francisco M. Negrón, Jr.; and Student Privacy Concerns in the Cloud Computing Era.

Other sessions will discuss ACA health insurance shared responsibility penalties, intellectual property and fair use, and defining equal opportunity in school-sponsored extracurricular activities; and school law trial practice.

The conference concludes on Saturday with two dynamic presentations, titled, “Armed Guards in Schools,” and “Adventures in Ethics: Will You End Your Career with Integrity or Will You be Eaten by a Bear?”

Attendees can earn up to 11.5 hours of CLE credit in the process.  Check out the program and register at the seminar website!

 

 

Joetta Sack-Min|August 7th, 2013|Categories: Announcements, Conferences and Events, Council of School Attorneys, School Law, School Security|Tags: |

COSA panel: Design school diversity policies to meet educational goals

School district policies to promote diversity are still viable, and recent Supreme Court rulings have bolstered existing laws that allow narrowly defined diversity policies. Districts must be careful, however, to design policies that meet these standards.

A panel of prominent education attorneys gave their advice on how build policies and programs that meet the current legal standard during a July 16 webinar organized by the National School Boards Association’s (NSBA) Council of School Attorneys (COSA).

A ruling last month in Fisher v. University of Texas at Austin upheld a 2003 decision in Grutter v. Bollinger, which permitted the use of race in university admissions if such policies were narrowly tailored. That decision, as well as a 2007 ruling in PICS v. Seattle School Dist., has made diversity a more complex—but not impossible–area for school districts to navigate.

“Diversity is still in place and still very much supported by the federal government,” Anurima Bhargava, Chief of the Educational Opportunities Section at the U.S. Department of Justice, told the audience of school attorneys.

NSBA was pleased with the Fisher ruling because schools are able to put into place diversity policies that advance students’ educations and did not erode the existing laws, said NSBA General Counsel Francisco M. Negrón, Jr.

The panelists offered advice to help clarify the new ruling and how to create policies that will support student learning in a diverse environment. The first step, all agreed, is clearly defining the desired outcomes.

“As school districts consider voluntary diversity policies, it’s important to articulate why you have an interest in diversity,” said Negrón, who added that research shows a diverse student body can improve student learning and test scores. NSBA and the College Board filed an amicus brief in the Fisher case that noted diversity could promote 21st century education goals and that policies considering many student characteristics, including race and diversity, are essential for achievement.

School leaders also need to shift their thinking and view diversity as a means to their educational goals, not the district’s demographics or quotas, panelists said.

And institutions must be prepared to show very clearly that they considered race-neutral alternatives before instituting a race-conscious policy—they have to be clear that none of the race-neutral alternatives would work as well, the panelists said.

School districts also must periodically review their policies, particularly considering changing demographics and enrollments, noted John W. Borkowski, a partner with the Hogan Lovells law firm in Washington, D.C.

“You can’t have a policy that is permanent,” he said.

But the Fisher case is not the end of the story. Diversity policies also will be impacted by the Supreme Court’s 2013-14 term through Schuette v. Coalition to Defend Affirmative Action, a case from the U.S. Court of Appeals for the Sixth Circuit that will determine the fate of a proposal to amend the Michigan constitution to prohibit discrimination in public agencies, including public schools and universities. NSBA will argue in an amicus brief that the measure would restrict a school district’s abilities to use race-conscious policies to achieve diversity.

 

 

 

Joetta Sack-Min|July 17th, 2013|Categories: Conferences and Events, Council of School Attorneys, Diversity, Governance, School Boards, School Climate, School District Reorganization, School Law|

DOJ official joins NSBA panel to discuss school diversity ruling

The National School Boards Association’s (NSBA) legal department announced that Anurima Barghava, Chief of the Educational Opportunities Section of the U.S. Department of Justice (DOJ), will join its webinar to discuss the Supreme Court’s recent ruling in Fisher v. Univ. of Texas. The webinar will be held Tuesday, July 16 at 1 p.m. EDT.

Ms. Barghava and other national experts, including NSBA General Counsel Francisco M. Negrón, Jr., will offer unique insights on the Supreme Court’s June 24 Fisher decision, which addressed the University of Texas’ use of race or ethnicity in its evaluation of candidates for admission. NSBA joined The College Board in an amicus brief in the case, arguing that the Court should avoid any dilution of the 2003 Grutter v. Bollinger ruling that would undermine efforts to achieve diversity currently used throughout the spectrum of our public education system from kindergarten through post-secondary levels.

Now that the Court has weighed in, leaving Grutter undisturbed for now, will Fisher change the way public schools admit and assign students? Does this decision signal the Court’s likely direction in Schuette v. Coalition to Defend Affirmative Action, where it will address a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities? Will Fisher affect K-12 assignment policies designed to promote diverse public school enrollment? Is this decision consistent with the DOJ and Office of Civil Right’s interpretation of PICS?

Other panelists include Teresa E. Taylor, Policy and Legal Advisor, EducationCounsel LLC and co-author of the amicus brief filed by The College Board and NSBA; and John Borkowski, Partner, Hogan Lovells, who advises school districts across the country on constitutional issues including race and diversity.

Register Now to Reserve Your Seat!

 

 

Joetta Sack-Min|July 15th, 2013|Categories: Announcements, Council of School Attorneys, Diversity, Federal Advocacy, School Law|Tags: , , , , , |
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