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Articles in the School Law category

As students go back to school, schools prepare for unaccompanied immigrant children

This post appeared in the National School Boards Association’s Legal Clips. Since this post came out, NSBA has also been featured on Fox News’ “Fox & Friends” and on NBC-owned local affiliates:

As reported in the USA Today, the arrival of 50,000 unaccompanied immigrant children since last fall is creating uncertainty among some school districts. “We haven’t started school yet, so we are all just holding our breaths to see what’s going to come on the first day of school,” said Caroline Woodason, assistant director of school support for Dalton Public Schools in Georgia. Georgia received more than 1,100 unaccompanied minors this year, as of July 7, according to the U.S. Office of Refugee Resettlement (ORR).

Under federal law, all children are entitled to a free public education, regardless of their immigration status. Public schools in states such as Florida, Texas and Georgia know the unaccompanied minors are already in their states, mainly from Guatemala, Honduras, and El Salvador. What they don’t know is how many will end up enrolling in their schools.

Last school year, Montgomery County Public Schools in Maryland enrolled 107 unaccompanied minors and has “no expectations” about how many could enroll this school year, said school district spokesman Dana Tofig. Maryland saw more than 2,200 unaccompanied minors arrive this year, as of July 7, according to the ORR data.

“We don’t know the educational background (of the students), if they’ve even been to school, the language issue and operational issues that could raise costs beyond those raised initially through state funding,” said Francisco Negrón, General Counsel for the National School Boards Association.

The Department of Education did not provide USA TODAY Network with specifics on guidance to school districts. The agency has a team to take “inquiries received from the field” and identify resources for school districts, according to an e-mail from Dorie Nolt, DOE press secretary.

School districts receive Title III funding under the No Child Left Behind Act for students with limited English proficiency. States can set aside up to 15% for districts that experience a “significant increase” in the number of immigrant students. Texas sets aside 6% of its Title III funding, or $5.9 million, said DeEtta Culbertson, spokeswoman for the Texas Education Agency. New York sets aside 10.5% or $5.2 million and California sets aside 5% or $8 million, reports Education Week. But it’s unclear if the current school district budgets are enough.

Miami-Dade County School District requested additional federal funding last week to support what it expects to be a flood of new students. Miami is home to the country’s largest Honduran population, and in the last three months of the school year, the district enrolled 300 children from Honduras, said superintendent Alberto Carvalho. The district has plenty of English-as-second-language teachers, as well as relationships with local social services. But “there’s an unknown factor” of how new students will impact the district financially, Carvalho said. Miami-Dade estimates it spends an additional $1,959 in local funds on immigrant children, Carvalho said in a July 30 letter to Florida Rep. Debbie Wasserman Schultz.

In addition to health screenings, students need social and psychological services because of the “dramatic conditions they left behind of violence or gang violence or poverty, coupled with what is often a traumatic experience during their journey,” Carvalho said.


Using Title III funds, Dalton Public Schools in Georgia set up what it calls a “Newcomer Academy” this year when it saw that about 30 students needed English training. Last year, the district received $200,000 in Title III funding for its 1,800 English language learners, about a quarter of the overall student population, Woodason said.

Whitfield County Schools, also in Georgia, set up a similar academy over the summer. Last school year, the district enrolled 13 unaccompanied immigrant children from Guatemala and El Salvador. Most don’t speak Spanish but their native Mayan dialects, said Eric Beaver, spokeswoman for the school district, in an e-mail.

Source:  USA Today, 8/6/14, By Jolie Lee

[Editor’s Note:  In June 2014, Legal Clips summarized an article from The Star-Ledger, which reported that the American Civil Liberties Union of New Jersey had filed lawsuits against seven New Jersey school districts, alleging that the districts are discriminating against families on the basis of their immigration status. The suits charge that the districts are requiring government-issued identification from parents before they will enroll their children.

In February 2014, Legal Clips reported on the announcement by the Southern Poverty Law Center that it had filed a complaint with the U.S. Department of Justice asking the department to conduct an investigation into two school districts in North Carolina, claiming that the districts discriminated against an immigrant child by denying, delaying, or discouraging enrollment. The complaint describes how “unaccompanied” immigrant children – who arrive in the United States without a parent or legal guardian and are placed in the care of a sponsor, such as a family member – were turned away from the schoolhouse door because of their limited English proficiency, age, or national origin.]

Alexis Rice|August 11th, 2014|Categories: Immigrants, School Boards, School Law|Tags: , |

Resources help school districts address undocumented children

School districts may feel significant impacts in the coming year resulting from the influx of Central American children to our country and schools. The National School Boards Association (NSBA) and its Council of School Attorneys (COSA) along with the U.S. Department of Education (ED) and the U.S. Department of Health and Human Services’ Office of Refugee Resettlement (ORR) can all help.

In addition to the many legal resources on immigration issues available to COSA members, COSA will be offering a webinar August 13, 2014 at 1-2:15 p.m. EDT: “Immigration Issues and Public School Attendance: Registering and Serving Undocumented Students and Employer Compliance.”

In this webinar, experienced school attorney Wesley E. Johnson and immigration attorney Marcos Gemoets, who has represented immigration clients throughout Texas and the United States, including unaccompanied minors from Central and Latin America, will provide a checklist of immigration-related issues that may be raised in your district this school year. During the presentation, Johnson and Gemoets will cover issues such as undocumented students’ rights, employer requirements, and how to prepare for enforcement activity by the U.S. Immigration and Customs Enforcement Agency. The presenters also will provide a “what to do if” resource for school administrators featuring several immigration-related scenarios. Registration is now open.

In light of the new federal guidance issued with regard to the recent influx of undocumented, unaccompanied minors NSBA will be re-releasing its electronic 2009 guide entitled “Legal Issues for School Districts Related to the Education of Undocumented Children (2009).”

The guide will contain new FAQs designed to help school board members and school administrators navigate the legal concerns raised by this new wave of undocumented immigrant students. The new FAQs will also provide a list to cross agency federal guidelines on this topic in an easy-to-access format.

ED has published new guidelines about which documents schools can and cannot require as proof of residency when children register for school. A “Dear Colleague” letter, published jointly by ED and the U.S. Department of Justice, announced the new guidelines. The new guidelines stipulate that schools can request documents such as leases or phone or utility bills to prove student residency but are prohibited from requiring Social Security numbers, driver’s licenses, or original or U.S. birth certificates from parents or children, among other directives outlined in ED’s accompanying fact sheet.

ORR’s School Impact Program provides grants to state and state-alternative programs for activities that help impacted school districts integrate and educate school-age undocumented children.

Margaret Suslick|July 29th, 2014|Categories: Immigrants, Policy Formation, School Law|Tags: , , , , , |

Education organizations call on U.S. Supreme Court to curb lengthy IDEA litigation

The National School Boards Association (NSBA), joined by the Pennsylvania School Boards Association (PSBA) and the National Association of State Directors of Special Education (NASDSE), today filed a “friend of the court” (amicus) brief in the U.S. Supreme Court in the case of M.R. v. Ridley School District. At issue in the case is whether school districts must continue paying for a student’s private placement once a court finds the school district provided the child with a free appropriate public education (FAPE). Under the stay-put requirement in the Individuals with Disabilities Education Act (IDEA), school districts must pay for a disabled child’s current educational placement while legal proceedings continue to resolve a dispute between parents and schools.

The groups urge the Court to review the decision of the U.S. Court of Appeals for the Third Circuit extending the stay-put obligation through completion of all appeals—a departure from previous court rulings that limited the stay-put obligation only until a trial court issued a decision.

The amici argue that the Third Circuit’s decision risks inflicting significant harm on school districts and the students they serve. By extending school districts’ obligation to pay for private school placements until all appeals are exhausted, the decision creates an incentive for parents to prolong litigation rather than to work collaboratively with school districts to resolve disputes without delay; the increased liability for private tuition and legal fees from needlessly prolonged litigation imposes an untenable burden on the already-strained budgets of local school districts and diverts resources away from providing educational services to all children. The brief contends that one legal dispute could mean hundreds of thousands of dollars expended on an unnecessary placement and legal fees and innumerable hours of professional educators’ time spent in legal proceedings rather than the classroom.

“Parents and educators should collaborate to develop appropriate education plans for student with disabilities and to resolve disagreements quickly,” said Thomas J. Gentzel, NSBA’s Executive Director. “Schools should not be forced to spend public funds intended to provide educational services to all children on an unnecessary placement for one child or on increased legal fees caused by excessive litigation.”

“IDEA requires school districts to provide a child with disabilities a free appropriate public education, not to fund the parents’ preferred private placement,” said NSBA Associate Executive Director and General Counsel Francisco M. Negrón, Jr. “Once a district court determines that a school district has provided FAPE, its obligation to pay for the stay-put placement should end.”

According to Negrón, the Third Circuit ruling requires immediate Court resolution: “We risk violating the public trust when we prolong expensive private school placement at public expense. Granting review of this important case would serve the needs and interests of many children, not a select few.”

Alexis Rice|July 29th, 2014|Categories: School Boards, School Law, Special Education|Tags: , , , , , |

Arizona judge orders state education funding adjust with inflation

A ruling by Arizona Superior Court Judge Kathleen Cooper requires the State of Arizona to adjust base level funding for public education to reflect inflationary increases the Arizona Legislature has not provided to public schools for the past five years as mandated by law.

The decision, issued on July 11, 2014, will provide a minimum of close to $300 million to schools in the next fiscal year.


“This is a significant mark in time for Arizona public education as it restores funding to a level that reflects five lost years of inflationary increases,” said Tim Ogle, executive director of the Arizona School Boards Association. “The ruling also is a directive that the law can’t be ignored and that our students and teachers won’t lose any more ground.”

The base level is one of the major factors in the state funding formula for pubic schools.

The court also agreed in principle with plaintiffs – a group of education organizations led by the Arizona School Boards Association, Arizona Education Association and the Arizona Association of School Business Officials – that public schools should have received close to $1 billion in additional funding to account for inflation over the past five years.

A call for an evidentiary hearing to determine how the state must respond to the back pay issue will be held on July 18.


“We have an entire cohort of early learners, beginning with the children who entered kindergarten in 2010 and are now entering fourth grade, who have never been in a properly funded classroom. Today’s ruling won’t make up for that,” Ogle said. “What it will do is provide necessary relief to schools that have experienced some of the most extreme budget cuts in the nation over the past five years.”

Under the court’s decision the base level without teacher comp for the 2013- 2014 school year should have been $3559.62 and the base level for future years would adjust this number by inflation, said Chuck Essigs, director of governmental relations for Arizona Association of School Business Officials.

“We certainly hope it will also ensure that, going forward, the Legislature complies with the law and the will of the tens of thousands of Arizona citizens who voted into law Prop. 301 and its requirement to annually provide small funding increases to account for inflation,” Ogle said.

Source: Arizona School Boards Association’s Arizona Education News Service

Staff|July 12th, 2014|Categories: School Law|Tags: , , , |

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: , |
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