Articles in the School Law category

Court deems Virginia school takeover plan unconstitutional

A Circuit Court judge has struck down a state school takeover board that would have stripped local school boards of their authority over low-performing schools, ruling in favor of the Virginia School Boards Association (VSBA) and the City of Norfolk school board.

Norfolk Public Schools and VSBA sued the state last fall, arguing that the state’s Opportunity Educational Institution (OEI) and its governing board, established by then-Governor Bob McDonnell and the Virginia General Assembly to take over schools deemed to be chronically low performing, violated the state’s constitution.

“This ruling is an important affirmation of the Virginia Constitution’s intent that localities hold the responsibility for their public schools,” said VSBA Executive Director Gina G. Patterson. “With that being said, there is still much work to be done to ensure that all of our schools are successful.”

The OEI and the OEI Board were created by the state legislature in its 2013 session to take over the supervision of schools that were denied accreditation and to require documentation and information about schools that had been accredited with warning for three years. The legislation also granted the OEI Board the authority to vote to take over the supervision of any school accredited with warning for three years. The legislation creating the OEI and the OEI Board purported to make the OEI “a statewide school division” and the OEI Board “a policy board in the executive branch of state government.”

The school board of a school taken over would have been required to transfer to OEI not only the local funds required by the state-mandated Standards of Quality, but also any local funds appropriated to the school division of residence in excess of the state-mandated amount.

The VSBA and the Norfolk School Board argued that the law violated Article VIII, Section 7 of the Constitution of Virginia, which provides that “the supervision of schools in each school division shall be vested in a school board.”

The OEI board was a policy board under the executive branch of government and an education institution falling under Title 23 of the Code of Virginia, which relates to institutions of higher education. Further, the lawsuit argued that the legislation establishing the OEI board violates Article VIII, Section 5, of the Constitution of Virginia, which provides that the State Board of Education shall create school divisions. The General Assembly, not the Virginia Board of Education, created the OEI board as a statewide school division.

Norfolk School Board Chairman Kirk Houston said, “We are pleased with the ruling. We value our strong partnership with Virginia elected and appointed leaders, however, state takeover of schools was not going to be a magic formula for addressing challenges with student achievement, particularly in high-poverty schools. In Norfolk, our community is focused on creating school environments that maximize all children’s academic potential, with consideration for all of their unique needs.”

Since the lawsuit was filed, more than 100 school boards and municipal governing boards, including Norfolk’s City Council, passed resolutions supporting it.

 

Joetta Sack-Min|June 11th, 2014|Categories: Board governance, Governance, School Law, State School Boards Associations|Tags: |

School boards urge U.S. appeals court to provide flexibility for schools in promoting a safe environment

The National School Boards Association (NSBA), joined by the Maryland Association of Boards of Education (MABE), filed a “friend of the court” (amicus) brief in the United States Court of Appeals for the Fourth Circuit in the case of Doe v. Board of Education of Prince George’s County. At issue in the case is the standard that courts should use to hold a school district liable for money damages under Title IX for the alleged harassment and sexual assault of a student by another student. Title IX is a federal civil rights statute that prohibits sex discrimination in education programs receiving federal funds.

A 1999 U.S. Supreme Court decision, Davis v. Monroe County Board of Education, developed a clear and stringent standard in peer-on-peer sexual harassment cases that only when school officials are deliberately indifferent to severe, pervasive, and objectively offensive harassment of which they have actual knowledge are school districts liable for monetary damages.

“School officials who know their students and local circumstances are in the best position to respond to reports of sexual harassment in a way that makes sense,” said NSBA Executive Director Thomas J. Gentzel. “The Davis standard recognized the importance of school officials retaining the flexibility to make professional judgments about how to address discriminatory peer harassment.” In its amicus brief, NSBA and MABE seek the Fourth Circuit’s support of the judiciary’s long-standing deference to school officials’ decision-making about maintaining safe, harassment-free learning environments for students.

The parents offered guidance documents from the U.S. Department of Education’s Office for Civil Rights (OCR) – along with “expert” reports and testimony – to support their claim that the school district did not do enough to investigate the reports of harassment and would have been able to prevent the alleged subsequent assaults had they done so.

“The legal argument for liability in this case is contrary to existing law,” said NSBA General Counsel Francisco M. Negrón, Jr. “Unfortunately, this argument relies in part on confusing statements from OCR, which NSBA has warned previously would lead to more lawsuits needlessly filed against school district based on an incorrect legal standard.”

In their brief, NSBA and MABE make clear that the parents’ approach departs from established legal doctrine on deliberate indifference and is one that the Supreme Court has rejected. The effectiveness of the district’s response as judged in hindsight, based solely on “expert” evaluations made after the fact and recurrence of harassment is insufficient to establish deliberate indifference.

“We have to get this important case right,” added Gentzel. “School personnel who have exercised appropriate professional judgment in carrying out their day-to-day responsibilities cannot live in fear of lawsuits that second-guess their decisions, especially when those decisions are based on Supreme Court precedent.”

Alexis Rice|June 6th, 2014|Categories: School Boards, School Climate, School District Reorganization, School Law, School Security|Tags: , , , , , |

In Huffington Post column, Gentzel calls for vigilance in Brown decision

To mark the 60th anniversary of the landmark Brown v. Board of Education decision, National School Boards Association Executive Director Thomas J. Gentzel reflected on the impact of the decision and the challenges that public schools still face. The following commentary was published by the Huffington Post:

 

In the 1954 Brown v. Board of Education decision, the U.S. Supreme Court delivered a timeless and transformative message: All students deserve a great public education; separate systems are not equal.

In marking the 60th anniversary of this landmark Supreme Court ruling, it is important to reflect upon the ongoing effect of Brown v. Board of Education on the work of America’s school boards and our nation’s public schools. Enshrining this decision as a historic relic does not serve the nine out of 10 school-age children who attend our nation’s public schools. To protect students’ rights, freedoms and ready access to a high-quality education, we must actively heed the central tenets of the Brown v. Board of Education decision.

The National School Boards Association (NSBA) is particularly concerned about the unintended consequences of privatization through vouchers, charter schools not governed by local school boards, and other means that research indicates are leading to the re-segregation of public schools, mainly in high-poverty urban areas.

In its most recent issue, NSBA’s flagship magazine, American School Board Journal, reports that the number of schools with a minority enrollment above 90 percent has climbed precipitously. Similarly, the Civil Rights Project at the University of California-Los Angeles also has reported that African-American and Hispanic students are increasingly segregated at the schools they attend.

Ironically, this comes at a time when America’s public schools are becoming much more diverse. The percentage of students who are white dropped from 61 percent in 2000 to 52 percent in 2010, and today stands at about 50 percent. Schools in the south and west now have a majority of minority students, according to the National Center on Education Statistics. And with more than half of babies born today falling into a minority classification, demographics will continue to diversify. At the same time, poverty and other risk factors also have increased.

Our lawmakers must continue to look at the entire public education system to ensure that we invest in our public schools and give them the support that is needed, rather than diverting scarce taxpayer dollars to voucher schemes and charter schools that lack local school district oversight. Today more than ever, it is essential that we continue to focus on ensuring that every child has access to an excellent and equitable education.

Data show public schools are educating today’s diverse student population to higher levels than ever before. We should be proud that our high school graduation rate is at an all-time high — about 80 percent of students graduate on time, and when late graduates are included, the graduation rate rises to more than 85 percent. The graduation rate of Hispanics, the fastest growing group of students in our nation’s schools, jumped from 61 percent to 76 percent between 2006 and 2012. And African-American students made significant gains during this period, improving their graduation rate from 59 percent to 68 percent.

Brown v. Board of Education honors a truth core to our nation’s democracy: to provide a strong education to each and every child who enters our nation’s public school system. We must stay focused on investing equitably in our public schools and students, ensuring that they have the resources and support they need, and we must not be diverted by programs that have the effect of re-segregating America’s public education system. We must honor Brown v. Board of Education‘s intention for every child to achieve, and we must insist that every child in America has access to a great public school where they live. No exceptions; no excuses.

Joetta Sack-Min|May 19th, 2014|Categories: American School Board Journal, Board governance, Charter Schools, Diversity, Privatization, School Law, Student Achievement, Urban Schools|Tags: , , , , , |

Call for proposals for NSBA’s 2015 Annual Conference

2015 NSBA Annual Conference

The National School Boards Association (NSBA) is requesting proposals for breakout sessions to be conducted during our 75th Annual Conference in Nashville, Tenn., March 21-23. The conference will draw thousands of attendees, exhibitors, and guests representing nearly 1,400 school districts, and will feature distinguished speakers and hundreds of workshops, presentations, and other events that will help school board members develop leadership skills, boost student learning, and improve school districts’ operations.

If your school district or organization has an idea for a high-quality breakout session that focuses on a topic of critical interest to school board members for presentation at this conference, please complete a proposal online by the deadline of Monday, June 16 at 5 p.m. EDT. Only proposals submitted through the online process  will be considered. Breakout sessions will be 30, 45, or 75 minutes in length and will be scheduled throughout the conference.

Proposals are being solicited for the following focus areas:

• Innovations in District Management
• Legal and Legislative Advocacy
• Professional and Personal Development
• School Board/Superintendent Partnerships
• Student Achievement and Accountability
• Technology + Learning Solutions

NSBA issues student data privacy guide in cloud computing era

As school districts increasingly move to cloud computing instead of on-site data storage, the National School Boards Association (NSBA) and its Council of School Attorneys (COSA) have released a guide for school boards introducing the legal issues associated with protecting student data and suggesting best practices.

The guide, “Data in the Cloud,” seeks to raise awareness of student data privacy concerns, and to provide a framework for comprehensive student data privacy approaches in school districts.

The guide notes that cloud computing applications offer ease of use and accessibility, but come with the potential for loss of privacy and increased liability, as personal information is transferred to the application.

“School boards should consider starting a discussion with school district staff and their communities about building a comprehensive student privacy protection program,” said NSBA Executive Director Thomas J. Gentzel. “This guide is a helpful tool for school boards as they review and potentially rethink policies related to data and student privacy.”

The guide uses a question-and-answer format to explain the relevant terminology, recent academic research, the breadth of software offerings, important legal requirements, and additional resources available to school board members and school lawyers.

“The legal requirements that could potentially govern student data privacy are still evolving,” said Greg Guercio, COSA Chair. “The school law requirements section of this guide is a key asset for school districts and their attorneys. 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.”

Recommendations for school boards include:

• Identify an individual district-wide Chief Privacy Officer (CPO), or a group of individuals with district-wide responsibility for privacy;

• Conduct a district-wide privacy assessment and online services audit;

• Establish a safety committee or data governance team that includes the school or district’s Chief Privacy Officer to work with the school community, recommend policies and best practices, and serves as the liaison between the school district and the community on privacy issues;

• Regularly review and update relevant district policies and incident response plans;

• Consistently, clearly, and regularly communicate with students, parents, and the community about privacy rights and district policies and practices with respect to student data privacy;

• Adopt consistent and clear contracting practices that appropriately address student data; and

• Train staff to ensure consistent implementation of school district’s policies and procedures.

Alexis Rice|April 28th, 2014|Categories: Educational Technology, School Boards, School Law, Technology Leadership Network|Tags: , , , , |

NSBA questions cost, validity of U.S. Department of Education study on fractions training for fourth-grade teachers

The National School Boards Association (NSBA) has a straightforward response to a U.S. Department of Education (ED) plan to give 252 fourth-grade teachers special training in fractions during the fall semester and then assess that training by observing their students’ test scores the next spring:

Just do the math.

Commenting on the department’s request for what it called “data collection,” NSBA General Counsel Francisco M. Negrón Jr. said, “NSBA supports providing opportunities for teachers to receive professional development (PD) to become better educators for their students. However, NSBA is concerned that this Notice goes much farther than merely requesting permission to collect data. To obtain the data sought, ED will need fourth-grade teachers to participate in a PD program that would be squeezed into eight sessions during the already-short first semester of the coming 2014-2015 school year.”

NSBA was the only organization to file comments.

The comments also shared some concerning examples. If the teachers, who would be from Georgia and South Carolina, were expected to attend each three-hour training session during the school day, the time would total 24 hours. That’s “24 clock hours of PD x 252 teachers = 6,048 hours of substitute teacher coverage that will be required to permit the teachers’ attendance,” Negrón said. “Typically, substitute teachers are not paid by the hour, but by the half- or full-day of coverage.”

“This is a big expense that will have a direct financial impact on school districts,” Negrón wrote, “though ED states in its materials that it will not.”

What if the training were done after hours? Technically, teachers are “off contract” during this time and are not required to engage in any duties without being paid overtime, Negrón said. He said it’s unlikely that large numbers would sign up for such time-consuming training as non-compensated volunteers.

“As part of its randomized control trial study, is ED going to compensate these teachers for their 24 hours of PD class time plus the time they spend on ‘additional homework lessons?’’’ Negrón wrote.

If the training were to occur during the school day, Negrón said, NSBA is also concerned about the interruption to student learning that could be caused by a series of substitute teachers filling in for the regular teachers. Negrón noted that not all districts require substitutes to have teaching certificates, and some only require a high school diploma.

Negrón also questioned the validity of the data collected through tests of the teachers’ students in the spring. One question: If teachers had just been given the training in the fall, is it reasonable to assume their students would show significant improvement by the spring semester?

“Working with fractions is a skill that is expanded upon over several years as students progress through a school district’s mathematics curriculum,” Negrón wrote. “It is unclear what one assessment at the end of the fourth-grade year will show to justify the disruption to the educational growth of those students in the other areas of the curriculum.”

Lawrence Hardy|April 25th, 2014|Categories: Curriculum, Educational Research, Federal Advocacy, Federal Programs, School Law|Tags: , |

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: , , |
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