Articles in the School Law category

Lessons on legal immunity for school officials

Teachers, administrators, and other school staff are considered public employees, which means they have certain protections under federal and state laws. But those immunities are complex and apply only in certain situations, and the laws are always evolving.

A webinar sponsored by NSBA’s National Affiliate program and legal department gave school board members and others a quick lesson in the basic legal concept of immunity and the laws that offer protections to school officials. The webinar, “Teacher and Administrator Immunity,” will be archived at for later viewing.

Attorney Derek Teeter of Husch Blackwell LLP  in Kansas City explained that while some laws date back hundreds of years, the most current laws came about because of concerns that school officials needed autonomy to discipline and perform other basic functions of their jobs without fear of retribution.

“Public school teachers and administrators get sued all the time — some would say at an increasing rate,” Teeter said.

The most common lawsuits his firm sees are negligent supervision, constitutional rights, and statutory rights, such as services under the federal Individuals with Disabilities Education Act. A typical lawsuit, he added, can cost tens of thousands of dollars to defend and distract from a school official’s job and personal life. A concern about lawsuits can drive some employees away from the field.

A wide range of school employees, including nearly all teachers and administrators, have “qualified immunity” created by federal and state laws or court decisions that apply in particular circumstances.

In general, these laws are only for public duties and the official capacity of their jobs. The laws require employees to exercise some sort of reasonable judgment—”You can’t know what you’re doing is wrong and still have protection,” Teeter noted.

A relatively new law, the Paul D. Coverdell Teacher Protection Act, was included in the No Child Left Behind Act in 2002. It was designed to give school employees additional tools to do their jobs without retribution. Teeter said he was hopeful the law will be invoked in more court cases, which would benefit school districts. While the law offers more protection that state immunity laws, it still does not provide immunity for gross negligence or recklessness, he added.

Teeter’s firm represented a school district that was sued in a case where a special education student, who had been expelled for violent behavior at a charter school, enrolled in a public high school in Kansas City and attempted to slit another student’s throat in the cafeteria. In Dydell v. Taylor, student Craig Dydell sued the Kansas City superintendent for $1 million for negligence, saying that school leaders should have been warned of the attacker’s violent past. The trial court found the superintendent was eligible for immunity and rejected Dydell’s arguments that the Coverdell Teacher Protection Act was unconstitutional. The state’s high court upheld that verdict. (Legal Clips covered this ruling on Feb. 8, 2011. Read more here.)

The decision was particularly important for defining the scope of the requirements of that law, Teeter said.

To provide more information about school law issues, The Council of School Attorneys (COSA) will host a three-part series of webinars designed by its labor committee to assist school board attorneys facing collective bargaining in difficult economic times:

  • Bargaining with no Money — June 14
  • Bargaining in the Midst of Changes to State Law — July 12
  • Tying Teacher Evaluations to Student Achievement — August 9

The webinars will be held at 1 to 2:30 p.m. EDT.  Cost is $175 for all three webinars for COSA members and $275 for non-members. For more information or to register, please go here.

Joetta Sack-Min|May 17th, 2011|Categories: School Law, Multimedia and Webinars, School Board News|

‘Supreme Court Creature Feature’

Just by chance, does the recent — and arguably disastrous — U.S. Supreme Court ruling in the Arizona tuition tax credit case remind you of, say, a really bad 1950s-era horror movie?

It does? Then you’re on the same wavelength as NSBA General Counsel Francisco Negron, an admitted pop culture aficionado who stayed up late in his hotel room the night before his school law presentation and penned a short PowerPoint titled “Supreme Court Creature Feature.”

COSA members witnessed the premiere Saturday afternoon.

“I’m really mad about this decision,” Negron said. “I’m covering it up with humor. It’s really shameful.”

Thus, Negron conjured characters like Justice “I-gotta-roll-with-my-boys” Kennedy, the swing vote that swung the wrong way; “the Super Twins, Justices Antonin Scalia and Clarence Thomas,” the latter “reprising his role as the ever-silent sidekick.” And a courageous dissenter, Justice “Delilah in the desert” Kagan, who generally agreed with NSBA.

“That’s not pop culture,” Negron quipped. “That’s a Biblical reference — so read your Bible.”

Unfortunately, the court’s 5-4 decision in Winn v. Arizona Christian School Tuition Organization is neither Bible nor farce. It could become a real challenge to anyone who believes public money should not be funneled into private, sectarian schools.

Over the objection of Kagan and the rest of the court’s more liberal bloc, the majority ruled that Arizona taxpayers did not have “standing” to sue because the Arizona program — which lets residents donate $500 to $1,000 in scholarships to private, mostly sectarian schools — does not, in the majority’s view, harm them as individual taxpayers. Moreover, the majority said, “The tax credit system is implemented by private activity” and not state intervention.

Negron called Arizona’s program a “scheme” to circumvent the First Amendment’s Establishment Clause.

“A rose by any other name is still a tax subsidy,” he said.

“Is this the end? Fin? Finis?” Negron said at the close of his cinematic PowerPoint. “Not by a long shot.”

He said similar legislation is cropping up in legislatures around the country, following what Kagan characterized as a “roadmap” for the further diversion of public dollars into private, religious schools. The decision also comes with even higher stakes, Negron said, because it opens the door to giving “real money,” in the form of tax credits, to businesses and corporations.

But for Chris Thomas, director of legal services for the Arizona School Boards Association, upholding of the state plan is, in itself, a big setback for supporters of public education.

“This is, for those who want to promote vouchers, even better than vouchers,” Thomas said. “It’s the best thing ever.”

Negron also discussed recent cases that NSBA has won, including Christian Legal Society v. Martinez, in which the court ruled that the University of California’s Hastings Law School did not violate the free speech rights of a college Christian club that it would not certify as a school-sponsored organization because of its discriminatory membership policy. The case is important to public schools, which must strike a balance between upholding students’ free speech rights, providing a nondiscriminatory learning environment, and avoiding direct support, or perceived support, of religious institutions.

Lawrence Hardy|April 9th, 2011|Categories: School Law, NSBA Annual Conference 2011, School Board News|

Tragedies highlight importance of hiring and supervising coaches

A string of staff misconduct cases and tragic student injuries have highlighted the inconsistency and weakness of policies regarding the hiring, training, and supervision of athletic coaches in school districts.

It also served as the topic of a session, “Play Ball: Hiring and Supervising Athletic Coaches,” held Saturday at the Council of School Attorney’s 2011 School Law Seminar.

Dulcinea Grantham, of the Walnut Creek-based Lozano Smith law firm, said school districts open themselves up to liability when they don’t spell out things like job responsibilities, minimum qualifications, and training requirements for athletic coaches, which is outstandingly common in the absence of district-wide policies and practices.

“A big issue we’ve seen is school districts often don’t have stated job descriptions for those coaches,” Grantham said. “Hiring decisions are made through an informal or ad-hoc process and as a result, when issues of performance come it’s hard to discipline when there are no job requirements.”

To complicate matters further, A 2010 Government Accountability Office report found there was little consistency among state laws regarding background checks either. In some states, for example, districts were only required to do background checks using the state database, which would not pick up infractions that occur out of state.

To protect themselves from legal and financial risks, Grantham advised school districts to conduct periodic audits of their athletic program, with a keen eye on the background and experience of athletic coaches, as well as protocols on training and supervision.

Regarding background checks, for example, districts need to figure out who is subject to the pre-employment screening: future employees only or community volunteers as well? Also is employment contingent on a background clearance? If so, are there policies in place that state employment will not be offered until a background check has cleared?

“Sometimes these background checks can take an inordinate amount of time and [districts] will be eager to get [coaches] started but that can get you in trouble,” Grantham said.

Once a position has been offered, it’s important that a job description that states minimum training, experience for the position, job responsibilities and consistency with state law, and possibly any applicable federal law.

There is currently a bill at the House of Representatives Committee on Education, Labor that would require states that receive federal funding to develop policies in the area of concussion management for student athletes.

“It’s important coaches understand their obligations, and understand the limitations of what they can and can’t ask student to do and are aware of signs of student suffering from physical distress,” she said.

“Doing this simple audit on an annual or semiannual basis, can streamline the hiring process and reduce liability of district.”

Naomi Dillon|April 9th, 2011|Categories: School Law, NSBA Annual Conference 2011, School Board News|

Hastings decision clarifies laws for regulating student groups

Schools should reexamine their access policies for student and community groups in light of a 2010 U.S. Supreme Court decision that cleared up “a confusing body of case law,” according to presenters at a Saturday session sponsored by the Council of School Attorneys.

The decision, Christian Legal Society Chapter of the University of California, Hastings College of Law vs. Martinez, underscored the importance of school policy, said attorney Tracey Schneider, in-house counsel for the Stafford Township, N.J., school system.  “The court sent a strong message that when the plain language of the policy is clear, it need not look beyond that language,” according to Schneider.

In Hastings, the Supreme Court supported a law school’s requirement that to student groups welcome “all comers” in order to use the college’s name and school facilities. A group that required members to sign a pledge to uphold Christian values was denied status as a “registered student organization.”

The all-comers policy was “viewpoint neutral” — a key requirement of any lawful school access policy. Schneider cautioned that schools cannot lawfully prohibit groups because they are perceived to be “divisive” or “controversial,” and said terms such as “special interests” or “point of view” should not appear in policy. Also, schools should not invite others to speak at an event planned by a group in an effort to provide what officials think would be a better or more balanced presentation.

Selective enforcement of access policies is also problematic. It can be interpreted as viewpoint discrimination.

Schneider urged district to have policies that include guidelines for access by student groups and school affiliated groups such as PTAs to the district’s website, Facebook page and Twitter feed. Those forums are become as valued as physical meeting space, and could become the subject of litigation.

NSBA Senior Staff Attorney Lisa Soronen addressed a related topic: parental access to schools. Generally, parents have been unsuccessful in claiming that they have a constitutional right to physical access school premises, she noted.

Parents who sue school districts generally are not seeking to discuss homework with teacher, Soronon said. More typical are plaintiffs who have behaved inappropriately at athletic events or  have insulted teachers and administrators. An emerging pattern involves do-it-yourself individuals who want access to school in order to end bullying.

Parent plaintiffs have failed in numerous cases to get courts to recognize a general right of access based on due process, free speech or equal protection clauses. In one case, the court said, “The constitution does not require that teachers communicate with parents on terms imposed by parents.” Plaintiffs have also been frustrated in attempts to claim they speak for a class of people when they are actually only concerned about themselves or their own child.

But conflicts involving parental access can be costly in terms of reputation or even money. In one case, a district had a parent arrested after she refused to stop removing her daughter from a reading class daily to teach her from a different textbook. A jury awarded the parent $140,000. On appeal, the Sixth Circuit U.S. Court of Appeals found for the school board, though.

-Eric Randall

erandall|April 9th, 2011|Categories: Religion, School Law, NSBA Annual Conference 2011, School Board News|

Benefits of building green outweigh costs

There is no longer any justification not to build green schools, a panel of school attorneys told attendees of NSBA’s Council of School Attorneys School Law Seminar on Friday.

A 2006 “Greening America’s Schools” report found that “green schools cost less than 2 percent more than regular construction to build, said Randy Parent, a lawyer with the Liebert Cassidy and Whitmore firm in San Francisco, which specializes in construction and business issues.

But consider this: the financial benefits gained from building green are, over a 20-year period, 20 times greater than the cost of green elements.

“For the average school, building green would save enough each year to pay for one full-time teacher,” Parent said. Studies have shown that improved daylighting, indoor air quality, heating and cooling, and the overall environment has increased student test scores, he added.

The three-person panel showed numerous examples of schools that had achieved the highest standards of the LEED (Leadership in Energy and Environmental Design) program, which is administered by the U.S. Green Building Council.

Many of the schools had sustainable features such as solar panels, radiant heating and cooling systems, and rainwater harvesting systems. One school in Hawaii, for instance, has a traditional steeply pitched Lanai roof that catches prevailing winds from nearby mountains to cool the facility, and it only uses 30 percent of energy it generates, said panelist Eileen O’Hare-Anderson.

Most of the school construction projects used local, recycles, and/or renewable materials and recycled nearly all of the construction materials—both requirements to attain the maximum number of points in the LEED 100-point ranking system.

The panelists also discussed lessons learned and potential litigation areas.

Parent highlighted an Oregon middle school that had achieved one of the highest LEED scores for schools across the country. However, the school used a custom-designed skylight that didn’t work as designed. “My advice is try and use systems that have been used somewhere else, and manufactured commercially,” he said.

“Green construction is on the relatively new side, so there really aren’t many cases to talk about,” said Chris Fallon, another associate at the firm. He cited one condo construction project where the builder was required to build a LEED-certified project by a certain date in order for the developer to claim a tax credit. After the project was delayed, and the owner missed the tax credit, the owner sued the builder. The case was settled out of court, so a court verdict was not attained.

Fallon advised that contracts need state specific goals and consequences. For instance, if a school district or owner would be eligible to receive tax credits, it should state that if those credits are not attainable the builder would be held liable for the expense of those lost tax credits.

“You must be clear on the owners’ intentions,” Fallon said.

In another case now before the U.S. District court for the Southern District of New York, a non-LEED certified contractor claims the USGBC is using false advertising, deceptive trade practices, and it has been misrepresenting energy efficiency of buildings but cannot prove energy savings. As a result, the contractor is losing business to LEED-certified contractors.

“It will be very interesting to see if the US District court in New York will hear this case,” Fallon said.

Another pending lawsuit addresses a home builder who promised the owner that a building would be LEED certified, but it did not meet the standard.

“School districts don’t seem to have any liability for LEED products, if anything the school district would be the plaintiff against a contractor, “We don’t foresee any problems for school districts looking to build green.”

His final advice: Schools should do a good cost analysis of the cost put into these buildings versus the payback, as a few school districts have found that new and speculative practices have not lived up to their savings claims.

Joetta Sack-Min|April 8th, 2011|Categories: School Law, NSBA Annual Conference 2011, School Board News|

Put policies in place before seeking outside revenue

Imagine a businessman donor gives you $2.5 million to install new turf and refurbish your schools football stadium and, in accordance with a contractual agreement, your district names the stadium for the donor. Two years later, the businessman is indicted under the federal racketeering statute and the community becomes aware that all of this money is apparently the result of illicit activity.

It happened to a school district that was a client of Frederick L. Dorsey of Siegel, O’Connor, O’Donnell & Beck P.C.

But the story had a happy ending. “We had something in the contract that allowed us to rename it and void the agreement,” Dorsey said at Council of School Attorneys session called Raising Money for Public Education on a Local Level Through Nontraditional Source.”

He said contracts should contain language that make it clear that the contract is being executing in furtherance of the educational mission of the school district and that the donor must conform to all relevant school policies.

Disricts should have policies on naming rights, commerical sponsorships, advertising and food and beverage sales, said co-presenter Daniel Murphy, director of legal affairs for the Connecticut Dept of Education.

Is it OK to wait until a potential donation arises before developing such policies? No, according to the presenters.

“Do your policy first,” Dorsey said. “Don’t have someone come in with a basket of money and then develop your policy.”

A policy designed with specific gift in mind is likely to be incomplete and not as well thought out as a policy developed in advance, Dorsey said.

One last caution: “Do not — not, not, not — give tax advice,” Dorsey said. “Don’t say if you give this money, you can set up a 501(c)3. They have to get that advice somewhere else.”

– Eric Randall

Erin Walsh|April 8th, 2011|Categories: School Law, NSBA Annual Conference 2011, School Board News|

Colorado attorneys talk tenure reform

The winds of tenure reform are blowing across the nation as at least seven states — Florida, Idaho, Illinois, Indiana, Nevada, New Jersey and Wyoming — consider amendments to state laws that would dramatically reduce teachers’ rights. But the state that has showed what’s possible is Colorado, according to Colorado attorneys Martin Semple and M. Brent Case, both of Semple, Farrington & Everall, P.C.

Speaking at Council of School Attorneys session entitled, “Tenure Reform in Colorado: Practical Lessons for Other States,” Semple and Case described a new Colorado law that makes bold changes:

• Probationary teachers must earn tenure with three consecutive years of demonstrated effectiveness, rther than just three years of service.

• Teachers with tenure automatically lose that status and return to probationary status if they are evaluated as ineffective for two consecutive years. They can regain tenure if they are rated effective for two consecutive years.

• 50 percent of teacher evaluations will be tied to student growth as measured by standardized tests.

• The so-called “dance of the lemons” will end ; no school need accept a teacher transfer if the principal and a faculty committee give a thumbs down.

• Every teacher will be evaluated every year. In the past, tenured teachers were evaluated only once every three years.

The Colorado legislature didn’t define what effective teaching is. The state board of education is empowered to do so. The law is expected to be fully implemented by 2014.

Part of the motivation behind the bill was positioning Colorado to be a more viable candidate for federal Race to the Top funds.

The attorneys noted that the bill was sponsored by a former principal — a Democrat — and that the Colorado governor, Senate majority and House majority are all Democratic. While the teacher unions affiliated with the National Education Association opposed the bill, the American Federation of Teachers endorsed it.

— Eric Randall

Erin Walsh|April 8th, 2011|Categories: School Law, Teachers, NSBA Annual Conference 2011, School Reform, Student Achievement, School Board News|

Education Department attorney addresses NSBA’s objections to bullying letter

A lawyer for the U.S. Department of Education’s Office of Civil Rights (OCR) addressed concerns raised by NSBA and the Council of School Attorneys about OCR’s October 2010 “Dear Colleague” letter on bullying and harassment.

The letter set out OCR’s position on how district officials should report and respond to these incidents among students. It sparked concern that districts could see an increase in litigation because of the Education Department’s expansive reading of federal law.

“It’s important that we distinguish between bullying and harassment,” said Paul Grossman, the OCR’s chief attorney in San Francisco. “They need to be investigated and resolved in different ways.”

Grossman spoke at the Council of School Attorneys’ School Law Seminar on Friday. He appeared in place of Russlynn H. Ali, Assistant Secretary for Civil Rights, U.S. Department of Education. Ali was scheduled to speak but could not travel from Washington, D.C., because of the potential federal government shutdown this weekend.

The Education Department responded to NSBA’s concerns in late March with a letter justifying OCR’s positions but not changing its initial position. “Our ‘Dear Colleague’ letter is grounded in our regulations,” said Grossman.

Grossman recognized that the current OCR guidance on bullying and harassment differs from court decisions. This was one point of NSBA’s disagreement with the letter – it was not consistent with circuit court decisions.

Grossman appeared to discount the relevance of these decisions, saying “Courts don’t want to make schools pay punitive damages or lawyers’ fees,. As a result, their standards are favorable to schools. “OCR standards are different,” he said.

According to Grossman, the relevant connection here was the Department’s “[C]ontractual relationship with schools,” which drives OCR’s enforcement efforts. “We have an obligation to see to it that people receive equal benefits and have equal access.”

Former COSA Chair Nancy Fredman-Krent questioned Grossman on several aspects of the OCR’s “Dear Colleague” letter, attempting to get clarification on NSBA’s issues. She asked if schools were now required to view any incidents of bullying of a child in a protected class as harassment.

Grossman answered that district officials should not dismiss these incidents as bullying immediately. “Look below the surface to see if it’s harassment,” he said. “When you look at it, if you don’t see a violation, then that’s it.”

Fredman-Krent countered: “We’d be wise to do a discrimination analysis and document it, because if you get a complaint, we’ll be cooked when OCR comes knocking.”

It would be wise, Grossman said, “but not required. Document rationale, even if it says, ‘We didn’t see anything.'”

COSA Chair Thomas E. Wheeler II challenged Grossman’s report of the number of harassment-induced suicides, raising concerns about the importance of the federal agency’s accuracy in reporting these other questions. The audience of school lawyers also questioned the lack of OCR guidance around First Amendment issues implicating cyberbullying and a district’s liability to monitor and restrict electronic communications among students. Grossman said OCR is looking into those concerns and plans to get input from school boards and others before issuing separate guidance on cyber issues.

“School districts would welcome participation in a process that informs the department’s policy development in this area,” COSA Chair-Elect Patrice McCarthy said.

Kathleen Vail|April 8th, 2011|Categories: School Law, NSBA Annual Conference 2011, Student Achievement, School Board News|

Reforms spur governance changes

School reforms going on in major urban districts could also be changing the landscape of governance, according to a Thursday session of the Council of School Attorneys’ (COSA) School Law Seminar.

Deborah Rigsby, NSBA’s director of federal legislation, advocacy, and issues management, gave an overview of the current federal reform efforts, including Race to the Top.

School Improvement grants (SIGs) were started in 2007 by the U.S. Department of Education. They were started “out of concerns that we needed a greater focus on the schools on the bottom percentile,” said Rigsby.

Of the four current reforms for SIGs, the two most popular are the transformational model – 71 percent are using this model – and turnaround – 21 percent are using this. Restarts are at 5 percent and school closures are at 3 percent.

With the federal budget being strongly debated in Congress right now, the money for continuing these reforms could be in question, she said. “If this hits Title 1 and IDEA, it could affect those programs.”

The attorneys for the Los Angeles Unified School District (LAUSD) and the Boston Public Schools (BPS) discussed the system-wide reforms going on in their districts. Diane Pappas, associate general counsel for LAUSD, said that her district’s reform efforts were spurred by the 2006 attempt by L.A. Mayor Antonio Villaraigosa.

After things quieted down,” said Pappas, “we worked out a partnership with the mayor.” The district established a network of partners, one of which was the city of L.A., which took control of schools in poverty-stricken neighborhoods. Schools run by the district’s network partners must still employee union member but can do their own hiring.

The district has charter schools; 170 of them are independent. Other charters are dependent, which means that the school board remains the governing entity, but they have latitude in other areas.

In 2009, she said, the district put up 38 low performing schools and allowed outside groups to bid on them to take them over.

“We have a lot of competition in L.A.,” she said. “It’s good for kids.

In the Boston schools, which have had a mayor-appointed school board since 1991, new state legislation is requiring the district to put into place three different reform models: turnaround, innovation, and in-district charter schools, said Alissa Ocasio, BPS’s legal advisor.

Turnaround schools develop plans that must be approved by the school committees. Any school can apply to be an innovation schools, which is like a pilot program. The in-district charter schools can be started by the superintendent and are subject to the district’s governance structure.

“The plans are designed to improve achievement; that’s the primary focus,” she said. “Any of these schools can be shut down if they are not meeting their goals.”

Kathleen Vail|April 8th, 2011|Categories: School Law, NSBA Annual Conference 2011, Educational Legislation, Federal Programs, Urban Schools, School Board News|

Communications help labor negotiations in tough times

Good communication is the path to effective labor contract  negotiations. “They must be ongoing,” said Barbara Ruga, an attorney with Clark Hill in Grand Rapids, Mich., “not just at negotiation time.”

Ruga was part of a panel discussion Thursday on “Bargaining Over Money in Difficult Economic Times,” at the Council of School Attorneys’ (COSA) School Law Seminar in San Francisco.

With many districts continuing to face difficult economic times, union negotiations have gotten harder, and money is the sticking point.

Communication is one way for the district and the school board to cope during these times. Without an effective communications plan, “the union will tell the story for you,” said Ruga.

School funding is not easily understood and “not easily reduced to a sound bite,” she said. An ongoing communications plan helps explain these complex issues. “We want the community and staff to understand on day one of negotiations and on day 200 of negotiations why the board is maintaining its difficult position.”

Boards can be hesitant to communicate about contract positions because they worry it could lead to conflict. However, Ruga said, it usually leads to community understanding and support for the board’s position.

Unions are particularly effective in communications, staying on message and using social media such as blogs, Twitter, and Facebook to get support for their positions. Boards need to use the same channels, said Ruga.

Another panelist, Brian Hungerford of the Hungerford Law Firm in Oregon City, Ore., said when the district and board knows that they must substantively change the new contract, it’s a good idea to start early. In the past, the status quo was beneficial for the district. Now, the unions have the advantage in the status quo, knowing that what the district is going to offer will be less than what the current contract calls for, he said.

 “How do we get people to accept less then they want and they are used to?” asked Hungerford. Districts are looking at ways to restructure the “step” system of teacher pay and advancement. In a four-year contract, for example, teachers advance steps only in years one and three of the contract. Some are looking at making the step system longer or instituting half steps.

Aside from salaries, medical insurance is another large and contentious issue in labor contracts. “The largest uncontrolled cost for districts nationally is health care,” said panelist Jeffrey T. Sultanik of Fox Rothschild, in Blue Bell, Pa.

Educating the public, as well as your employees, on the real costs of health care is the place to start when trying to negotiate changes in contract health care benefits, said Sultanik. He suggested using the Kaiser Family Foundation study on health care costs in the bargaining process.

Kathleen Vail|April 8th, 2011|Categories: School Law, NSBA Annual Conference 2011, School Board News|
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