Articles in the School Law category

U.S. Supreme Court affirmative action ruling hampers diversity policies, NSBA says

The National School Boards Association (NSBA) is concerned that the U.S. Supreme Court ruling on affirmative action will embolden groups opposing diversity to push for state constitutional proposals that could restrict or invalidate local school board-initiated policies that help facilitate diversity in public schools.

By upholding a Michigan constitutional amendment that bans the use of racial preferences in college admissions, the Supreme Court’s decision in Schuette v. Coalition to Defend Affirmative Action on April 22, could limit school districts from adopting diversity policies by prohibiting the consideration of race and other factors in public education.

“The academic goal of diversity benefits all students, not just racial or ethnic minorities,” said NSBA Executive Director Thomas J. Gentzel. “Diversity promotes student achievement both through improvement on standardized test scores in the short term and as preparation for participation in a pluralistic, democratic society.”

NSBA had urged the U.S. Supreme Court to strike down Michigan’s Constitutional amendment in an amicus brief in the Schuette case . NSBA argued that instead of protecting the rights of public school students, the ill-conceived Michigan amendment would limit students’ opportunities by interfering with local control of education and local school boards’ abilities to design voluntary policies promoting the academic benefits of diversity.

“These kinds of state constitutional amendments will limit the use of race and therefore greatly limit the ability of schools to implement diversity policies that work,” said NSBA General Counsel Francisco M. Negrón, Jr. “We are concerned that in places that pass these kinds of constitutional provisions, public schools that want to maintain diversity policies will have to show that there is specific, invidious, or aggravating injury to minorities in order for those policies to pass a constitutional test.”

Negrón noted that school diversity policies can still exist under the Schuette ruling as long as they comply with the 2007 Supreme Court ruling in Parents Involved in Community Schools v. Seattle School District No. 1, which stipulated that policies must be narrowly tailored to achieve academic benefits for all students.

Read more details about the ruling in NSBA’s Legal Clips.

Alexis Rice|April 23rd, 2014|Categories: Diversity, School Boards, School Law|Tags: , , , , , |

NSBA previews student data privacy in the cloud policy guide

The National School Boards Association’s (NSBA) Council of Student Attorneys (COSA) Director Sonja Trainor for presented a preview of a comprehensive policy guide for school boards during a session entitled, “Cloud Computing and Student Privacy,” on Sunday, April 6 at the NSBA’s 2014 Annual Conference in New Orleans.

The policy guide, which focuses on the tug-of-war between individual privacy rights and the benefits of data management, analysis, and storage on cloud-based platforms in school districts, presents the relevant terminology, recent academic research, breadth of software offerings, important legal requirements, and fundamental resources for school board members and school lawyers.

By acknowledging cloud commuting’s undeniable future in school districts, the report emphasizes that with the ease and accessibility of the cloud comes with the potential for the loss of privacy—and the increase in liability—with any transfer of personal student information.

Due to the numerous laws that potentially govern student data privacy, the school law requirements section of this guide is a key asset for districts and legal teams. Current laws still leave plenty of room for interpretation on student privacy, making it is essential for district leaders to ask the right questions and understand potential problems. The most directly applicable student privacy laws for school districts and service providers are the following:

  • Family Educational Rights and Privacy Act (FERPA), and its sister statute, the Protection of Pupil Rights Amendment (PPRA), which apply to educational institutions that receive federal financial assistance; and
  • Children’s Online Privacy Protection Act (COPPA), which applies to operators of websites and mobile apps that are directed to or known to be used by children under the age of 13.

Formed in 1967, the NSBA’s Council of School Attorneys provides information and practical assistance to attorneys who represent public school districts. It offers legal education, specialized publications, and a forum for exchange of information, and it supports the legal advocacy efforts of the National School Boards Association.

Staff|April 6th, 2014|Categories: Educational Technology, NSBA Annual Conference 2014, School Law|Tags: , , , |

NSBA’s Council of School Attorneys elects new leadership

The National School Boards Association’s (NSBA) Council of School Attorneys (COSA), the national network of attorneys representing K-12 public school districts whose mission is to support school attorneys and provide leadership in legal advocacy for public schools, elected new leaders and directors during its annual meeting in New Orleans. The 22-member Board of Directors oversees COSA’s continuing legal education programming and working groups for its 3,000+ members across the United States and Canada.

Gregory J. Guercio became Chair; he is founding partner of the Farmingdale, N.Y., law firm of Guercio & Guercio, LLP and received his law degree from St. John’s University, School of Law.

Justin D. Petrarca became Chair-elect; he is a partner with the Chicago, Ill. firm of Scariano, Himes and Petrarca, and received his J.D. from the John Marshall Law School.

Andrew M. Sanchez became Vice-Chair; he is a partner in the Albuquerque, N.M. office of Cuddy & McCarthy, and received his law degree from George Washington University Law School.

Pilar Sokol became Secretary.  She is the Deputy General Counsel of the New York State School Boards Association in Latham, N.Y.  Sokol is a graduate of Albany Law School.

“This is an exciting time for COSA and NSBA.  COSA’s new leadership represents the top education law attorneys across the country, ensuring that NSBA will continue to be the nation’s foremost legal advocate for public schools,” said Francisco M. Negrón, Jr., NSBA’s General Counsel.

COSA also elected four new directors to two-year terms: Joy Baskin is the Director of Legal Services of the Texas Association of School Boards; Kathleen S. Mehfoud is a partner at Reed Smith L.L.P. in Richmond, Virginia; W. Joseph Scholler is a member with Frost Brown Todd LLC in West Chester, Ohio; and Patricia J. Whitten is a partner at Franczek Radelet P.C. in Chicago, Ill.

In addition, COSA elected four directors to a second two-year term:  Séamus Boyce is a partner with Church, Church, Hittle & Antrim in Noblesville, Ind.; Danielle Haindfield is a partner in the Des Moines, Iowa firm of Ahlers & Cooney, P.C.; Phillip L. Hartley is managing partner of the Gainesville, Ga. law firm of Harben, Hartley & Hawkins, LLP, and General Counsel for the Georgia School Boards Association; and Anne H. Littlefield is a partner with the Hartford, Conn. firm of Shipman & Goodwin, LLP.

“The council’s new leaders are accomplished school law practitioners and dedicated advocates on behalf of public schools,” said Elizabeth Eynon-Kokrda, past COSA Chair and head of this year’s nominating committee. “Together, they bring deep and rich legal experience and tremendous energy to the organization.”

Formed in 1967, the NSBA Council of School Attorneys provides information and practical assistance to attorneys who represent public school districts. It offers legal education, specialized publications, and a forum for exchange of information, and it supports the legal advocacy efforts of the National School Boards Association. 

Alexis Rice|April 5th, 2014|Categories: Leadership, School Boards, School Law|Tags: , , |

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: , , |

A. Dean Pickett and David B. Rubin receive NSBA’s Council of School Attorneys 2014 award

COSA_awards

The National School Boards Association’s (NSBA) Council of School Attorneys (COSA) honored two school board attorneys who have provided exemplary service to school board clients and the school law community at the 2014 Annual School Law Seminar. Both men are receiving the award in recognition of their long and outstanding service to public schools, the profession, and the mission of COSA to “improve the practice of school law by providing leadership in legal advocacy for public schools.”

A. Dean Pickett, Tempe Tri District Legal Counsel, Tempe, Az., and David B. Rubin, David B. Rubin, P.C., Metuchen, N.J., are the recipients of the 2014 Award for Distinguished Service.

“We are so proud to honor two pillars of the school law community. Both Dean and David provide exemplary service to school boards and students they serve, as well as the school law community as a whole” said Allison Schafer, COSA’s Chair.

Pickett has made countless contributions to the practice of school law at the state and national level. He is a founding member of the Arizona Council of School Attorneys and has been an active participant for over 30 years. He served on the COSA Board of Directors for eleven years and was chair from 2009-2010. He is the creator of the COSA School Law Boot Camp for attorneys new to the practice of school law and regularly presents at these sessions at COSA seminars.

Pickett noted, “We have seen the quality and clarity of school law practice grow dramatically in the past thirty years, in large part as a result of COSA’s – every member’s – commitment to this very special practice area, and understanding that when we do it right, we’re doing right for kids.”

Rubin is an active and energetic supporter of COSA and its mission. He served as chair from 1995-1996, currently chairs COSA’s Working Group on Cloud Computing and Student Privacy, and regularly presents on legal ethics at COSA seminars. He was selected as 2014 Lawyer of the Year by Best Lawyers in America for Ethics and Professional Responsibility Law (Newark Region) and is a recipient of the New Jersey Commission on Professionalism in Law’s Professional Lawyer of the Year Award. He has served as Chair of the New Jersey Bar Association Professional Responsibility and Unlawful Practice Committee, President of the New Jersey Association of School Attorneys, and lecturer in education law at Rutgers University Graduate School of Education.

Rubin said, “It’s a great honor to receive this award but, even more, I’m grateful for nearly 30 years of professional collaboration and comradery I’ve enjoyed with my COSA colleagues throughout the country.”

Schafer noted: “Dean and David are model school board advocates, legal experts and true counselors who give practical advice with a dose of wisdom to their clients and colleagues. They are both really nice guys to boot, and thoughtful mentors to new school attorneys.”

Formed in 1967, the NSBA Council of School Attorneys provides information and practical assistance to attorneys who represent public school districts. It offers legal education, specialized publications, and a forum for exchange of information, and it supports the legal advocacy efforts of the National School Boards Association. For more information on COSA, visit www.nsba.org/COSA.

Alexis Rice|April 4th, 2014|Categories: School Law|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 advises on student data privacy

The National School Boards Association’s (NSBA) Council of School Attorneys (COSA) participated in an expert panel session last month to discuss legal issues associated with transferring, storing, and protecting student data.

Held as part of the Consortium for School Networking’s Annual Conference, the student privacy panel included COSA Director Sonja Trainor; U.S. Department of Education (ED) Chief Privacy Officer Kathleen Styles; Assistant Director at the Federal Trade Commission Mark Eichorn; and was moderated by Alicia Solow-Niederman of Harvard University’s Berkman Center for Internet and Society.

Styles highlighted ED’s resources on the student data privacy, including a recent publication, Protecting Student Privacy While Using Online Educational Services. She recommended three key steps school districts should be taking to address student data privacy: (1) take a hard look at policies addressing student records and data; (2) train staff on your district’s student data privacy policies, and in privacy concerns generally; and (3) be transparent in your student data privacy policies and practices.

Noting that outdated student privacy laws have created holes, making it difficult to craft school policy, Trainor stressed the importance of anticipating trends in legislation and taking a comprehensive approach to student data privacy, while working with a school attorney to keep on top of changing laws.

NSBA will be releasing a resource guide in conjunction with the NSBA Annual Conference to be held April 5-7 in New Orleans, which will help school boards identify the crucial issues associated with student privacy when the school district uses online educational services.  COSA  will also release a detailed resource for school attorneys, which will include suggested contract terms.

In addition to recommending a comprehensive approach to student data privacy protection, the guide will recommend that school boards keep their communities informed and involved in the steps they are taking to guard against loss of student data privacy. Trainor will present a school law session at the conference entitled “Cloud Computing and Student Privacy – What School Boards Need to Know” on Sunday, April 6 at 1:30-2:45 pm in rooms 346-347.

 

Staff|April 2nd, 2014|Categories: Educational Technology, NSBA Publications, School Boards, School Law|Tags: , , , |

NSBA’s COSA Seminar examines civil rights, school choice issues

Civil rights enforcement, vouchers, employment, bullying, and disability law are the hot topics this week at the National School Boards Associations’ (NSBA) Council of School Attorneys’ (COSA) annual School Law Seminar in New Orleans taking place April 3-5. The hashtag for the seminar is #COSANola.

In the opening discussion, Catherine Lhamon, Assistant Secretary for Civil Rights for the U.S. Department of Education, will cover the scope of civil rights issues in our nation’s schools and the work that Office of Civil Rights (OCR) is doing to ensure equal access to high-quality education for all students. Lhamon will cover the latest OCR research and the charge to protect our nation’s students against discrimination on the basis of race, sex, disability, and age in K-12 and postsecondary educational institutions nationally. Lhamon will be joined by Anurima Bhargava, Chief, Educational Opportunities Division, Civil Rights Division, U.S. Department of Justice, who will take questions on the recent guidance issued by both departments on Nondiscriminatory Administration of School Discipline.

“The annual School Law Seminar gives COSA attorneys and attendees the chance to get updated on crucial school law trends and challenges our school board clients are facing,” said Greg Guercio, the 2014-2015 COSA Chair and Seminar Committee Chair.  “This is our largest Seminar.  It brings in 350+ school attorneys.  We really look forward to connecting with our colleagues and getting updated on the legal advocacy work of NSBA, as well.”

COSA sessions will be led by experienced school attorneys on relevant issues such as “What the Louisiana Voucher Litigation Means for You and Your Clients,” “Your Top Ten FERPA Questions – Asked and Answered,” and “The Alpha and the Omega: An Anti-Christ to Yoga Update on Litigation Affecting Student Religious Rights in Public Schools.”

Alexis Rice|April 1st, 2014|Categories: Leadership, School Climate, School Law, Special Education, Teachers|Tags: , , , |

U.S. Department of Education issues guidelines on student data privacy

The U.S. Department of Education has issued new online resource guidelines to help school districts and educators interpret major laws for protecting student privacy and develop best practices for using online educational services.

The report, Protecting Student Privacy While Using Educational Services: Requirements and Best Practices,  issued by the department’s Privacy Technical Assistance Center (PTAC), noted that classrooms are increasingly employing technological advances such as on-demand delivery of personalized content, virtual forms of interacting with teachers and other students, and many other interactive technologies.

“Early adopters of these technologies have demonstrated their potential to transform the educational process, but they have also called attention to possible challenges,” says the report. “In particular, the information-sharing, web-hosting, and telecommunications innovations that have enabled these new education technologies raise questions about how best to protect student privacy during use.”

Examples of online educational services include online services that students use to access class readings, see their academic progress, watch videos, or comment on class activities, the report said. Complicating the issue is the fact that  “the diversity and variety” of these online educational services provide no single answer regarding which technologies, and which student data disclosures and uses, are covered by the Family Educational Rights and Privacy Act (FERPA).

As is often the case with emerging technologies, the interpretation of existing laws such as FERPA and the Protection of Pupil Rights Amendment are slower to evolve than the technology itself. These issues continue to be at the forefront of discussions among educators, software companies, legal experts, and others with a stake in student data privacy.

“Student data privacy has received a great deal of national attention in recent months, with many groups working to develop resources for their own constituents and collaborating with others to determine best practices,” said National School Boards Association (NSBA) Executive Director Thomas J. Gentzel. “NSBA has been a part of this national conversation.”

NSBA’s Council of School Attorneys (COSA) formed a working group on student privacy this year, which will issue a guide for school attorneys this spring.  “We are producing a resource for school attorneys that will help them navigate the legal landscape and identify best practices for student data privacy protection that go beyond legal compliance,” said COSA Chair Allison Brown Schafer of the North Carolina School Boards Association. NSBA will issue guidance for school board members.

“As an education community, we have to do a far better job of helping teachers and administrators understand technology and data issues so that they can appropriately protect privacy while ensuring teachers and students have access to effective and safe tools,” U.S. Department of Education Secretary Arne Duncan said. “We must provide our schools, teachers, and students cutting-edge learning tools — and we must protect our children’s privacy. We can accomplish both — but we will have to try harder to do it.”

The report discussed several best practices schools should use to protect student privacy when using online educational services. Among them are: maintaining an awareness of relevant federal, state, tribal, or local laws; having policies and procedures to evaluate proposed online educational services; and being transparent with student and parents about how schools collect, share, protect, and use student data.

Read more in NSBA’s Legal Clips.

Alexis Rice|March 6th, 2014|Categories: Educational Technology, School Law|Tags: , , , , , |

NSBA urges federal courts to correctly apply IDEA

Working with two state school boards associations, the National School Boards Association (NSBA) has signed on to amicus briefs in cases that would impact school districts’ ability to provide special education services to students.

These amicus briefs—one filed in the U. S. Supreme Court in two California cases, the other in the U.S. Court of Appeals for the Sixth Circuit dealing with a Kentucky case—ask the courts to reconsider rulings that misinterpret the main federal special education law, the Individuals with Disabilities Education Act (IDEA).

In the Supreme Court brief, which addresses two consolidated cases, Tustin Unified School District v. K.M. and Poway Unified School District v. D.H., NSBA and the California School Boards Association encourage the U.S. Supreme Court to hear these cases, contending that the U.S. Court of Appeals for the Ninth Circuit misapplied the Americans with Disabilities Act (ADA), rather than correctly applying IDEA, to a case involving a California student with a hearing impairment.

In its ruling, the Ninth Circuit deferred to an interpretation of the ADA urged by the U.S. Department of Justice, which argued that school districts have additional obligations under the ADA’s “effective communication” regulation, even when they have put in place Individualized Education Programs (IEP) that meet the IDEA’s requirement to provide a free appropriate public education (FAPE).

“It is important for the U.S. Supreme Court to take this case, as the Ninth Circuit opinion ignores 20 years of precedents on special education law and represents yet another example of a federal agency exceeding its authority over educational decision making,” NSBA Executive Director Thomas J. Gentzel said.

In each of the California cases, the school district denied the request of a high school student with hearing disabilities to use a word-for-word translation service in the classroom, but offered other accommodations. In each case, both the administrative hearing officers and the district court found that the school district had fully complied with the IDEA. However, the Ninth Circuit sided with the plaintiffs, saying that the ADA imposes additional obligations not covered under IDEA.

Under IDEA’s cooperative team approach to assessing the appropriate accommodations for children with disabilities, a multidisciplinary IEP team determines a student’s educational needs based on comprehensive evaluations by specialists in the field.  Under the Ninth Circuit’s decision, NSBA argues, school districts must give “primary consideration” to the parents’ desire for specific services, programs, placements or supports—regardless of whether they are appropriate.

In a third case, Boone County Board of Education v. N.W. , NSBA is joining with the Kentucky School Boards Association in urging the Sixth Circuit to reverse a district court decision involving a student with autism and a speech disorder. The issue before the court is whether a school district must  pay for a private school placement unilaterally chosen by the student’s parents when the district has made a “free and appropriate public education” (FAPE) available to the student.

“The decision in Boone County Board of Education v. N.W., as it stands, would force cash-strapped school districts to bear the high costs of private placements during litigation, even when a court ultimately rules that the district has made FAPE available in a public school setting,” said NSBA General Counsel Francisco M. Negrón Jr. “The lower court’s decision sets a terrible precedent that prolongs due process and court proceedings and discourages informal resolution of special education disputes through mediated settlement. It must be reversed.”

 

Alexis Rice|February 4th, 2014|Categories: Federal Programs, School Law, Special Education|Tags: , , , , |
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