Articles in the School Law category

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: NSBA Annual Conference 2011, School Board News, School Law|

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: NSBA Annual Conference 2011, School Board News, School Law|

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: NSBA Annual Conference 2011, School Board News, School Law, School Reform, Student Achievement, Teachers|

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: NSBA Annual Conference 2011, School Board News, School Law, Student Achievement|

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: Educational Legislation, Federal Programs, NSBA Annual Conference 2011, School Board News, School Law, Urban Schools|

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: NSBA Annual Conference 2011, School Board News, School Law|

NSBA: Supreme Court’s Arizona ruling may promote state voucher schemes

A divided U.S. Supreme Court sidestepped the major issue in a case involving an Arizona scholarship program that effectively funnels public money into private religious schools, ruling 5-4 that Arizona taxpayers bringing the case did not have standing to sue because they weren’t directly affected by the program.

The decision announced Monday in Winn v. Christian School Tuition Organization, was a setback for NSBA, which had filed an amicus brief in support of the plaintiffs.

“We’re disappointed,” said NSBA General Counsel Francisco M. Negron Jr. “The court’s ruling encourages bad educational policy that serves small numbers of children and discriminates on the basis of religion.”

In ruling that the plaintiffs did not have standing, the court majority drew a distinction between tax breaks and direct government funding of sectarian schools. That position drew a lengthy dissent from Justice Elena Kagan, who noted that “cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations.”

The program gives state income tax breaks to donors who provide tuition for children to attend private, predominately religious schools. NSBA argued that the program violated the First Amendment’s Establishment Clause, which prohibits government from advancing religion. But the high court never got to the constitution issue itself, with Justice Anthony Kennedy, often a “swing voter” on controversial cases, writing the majority opinion.

“By ruling solely on the question of standing, the Supreme Court missed an opportunity to set aside legislative schemes aimed at diverting public tax dollars into private, sectarian hands,” Negron said.

In its brief, NSBA noted that most of the students in the program had been attending private schools before receiving scholarships and that the program was too small to give public school parents the financial support to send their children to private schools.

Joining NSBA in the amicus brief were the Arizona School Boards Association, the American Association of School Administrators, the National Education Association, and the Arizona Education Association.

Lawrence Hardy|April 4th, 2011|Categories: Privatization, Religion, School Board News, School Law, School Vouchers|

OCR responds to NSBA concerns on bullying guidance

At the request of NSBA, the U.S. Department of Education has responded to concerns regarding its recent guidance on school bullying and harassment. The letter, sent on March 25, further explains the Office of Civil Rights’ legal justifications for its positions but does not alter the substance of its initial guidance.

NSBA General Counsel Francisco M. Negrón, Jr. told NSBA’s Legal Clips that the OCR missed an opportunity to support the expertise and discretion of local school officials. Legal Clips has a full analysis of the letter.

Russlyn Ali, the assistant secretary for the OCR, will speak at the Council of School Attorneys’ annual conference in San Francisco on April 8. (That session along with several other COSA sessions on the topic will be covered by School Board News Today’s Conference Daily.)

The initial guidance came in the form of an Oct. 26, 2010 “Dear Colleague” letter that raised many questions about school officials’ responsibilities to report and address bullying and harassment incidents. NSBA also noted its concerns that the guidance could conflict with some state laws. The guidance could invite “misguided litigation,” according to NSBA’s legal department.

Negrón asked OCR to clarify or reconsider its stance on the responsibility of public school officials to address bullying and harassment in schools in this letter late last year. According to NSBA’s Legal Clips, “Negrón expressed concern that the [letter], which provides a broad view of the behaviors that constitute harassment falling under the purview of OCR’s enforcement responsibilities and a wide range of remedial measure schools may need to take to address them, may invite misguided litigation against schools and prove difficult for school officials to implement.”

“It’s important that OCR give school officials some brighter lines, so they know not only what OCR will enforce, but also whether OCR’s expectations line up with existing legal precedent.  We continue to be concerned that the [letter] may unwittingly invite needless litigation,” Negrón said in Legal Clips.

Joetta Sack-Min|April 1st, 2011|Categories: Bullying, School Board News, School Climate, School Law, School Security|

NSBA, TASB support principals sued by parents in religious sting

NSBA has filed a friend of court brief in support of two Texas elementary school principals who were sued because they prevented Christian children from distributing religiously-themed candy canes at a holiday party more than six years ago.

In December 2009, the Fifth Circuit Court of Appeals upheld a district court ruling in favor of the principals, saying the Plano Independent School District had the right to determine where and when students could distribute religious materials. But it remanded to the lower court the question of whether the principals had qualified immunity in the case — a designation that protects officials who, in the course of their duties, are determined to have not violated “clearly established law.”

A district magistrate sided with the plaintiffs on that question, saying the principals had violated the children’s rights under the First Amendment’s Free Expression cause. NSBA and the Texas Association of School Boards are arguing, among other things, that the court should have also considered the First Amendment’s Establishment Clause, which forbids schools from advancing the interests of a particular religion, in deciding whether the administrators had qualified immunity.

“Although the student Plaintiffs asserted violations of their free speech rights, the defendant principals took the action they did because of concerns about possible violations of the Establishment Clause,” NSBA and TASB say in their brief. “This case, therefore, involves the intersection of both sets of rights, and the proper qualified immunity question is not whether the students’ rights to free speech were clearly established, but whether those rights, as balanced against the district’s obligations under the Establishment Clause, were clearly established.”

In a commentary in December for Lawyers Weekly USA, Pat Murphy characterized the third-graders who wanted to distribute candy canes along with a copy of the Christian-themed “Legend of the Candy Cane” as victims of an overzealous “sting operation” on the part of the administrators. But as NSBA and TASB point out in their brief, it appears that it was the parents who had prepared beforehand for possible litigation and publicity. This and similar actions, the brief said, “are part of a deliberate advocacy movement to create First Amendment litigation through ‘gotcha’ moments involving lower-level school employees.”

For example, the brief said, that one parent’s reaction, when told that the items could not be distributed “was to immediately call the media; another parents already had her cell phone ready to call her lawyer. It is in this kind of intense, litigation-ready atmosphere that we now expect educators to be able to instantaneously analyze and apply First Amendment jurisprudence that takes lawyers and court years to analyze and argue during subsequent litigation – which in this case has already dragged on for six years without resolution.”

Lawrence Hardy|March 21st, 2011|Categories: Religion, School Board News, School Law|

Court rules in favor of school board in labor case

A ruling this week in Purdham v. Fairfax County School Board by the U.S. Court of Appeals for the Fourth Circuit upheld a decision in favor of the Fairfax County, Va., school board. The decision means that school districts in the Fourth Circuit, which includes Maryland, North Carolina, South Carolina, Virginia, and West Virginia, will not have to pay regular wages to staff who volunteer for coaching jobs, which could have forced many schools to shut down some extracurricular activities.

The case arose when a school security assistant who volunteered to coach a high school golf team sued the school board for back wages and overtime pay under the Fair Labor Standards Act. The coach said that the coaching gig should be considered part of his job because, for a brief time, the school district had paid overtime for hours spent on the coaching duties in an effort to comply with FLSA’s evolving legal standards and had given the employee administrative leave time for his coaching duties.

The school district had paid the coach a stipend of about $2,000 a year, which the court deemed as an appropriate “nominal fee” allowed under the FLSA.

NSBA, the Virginia School Boards Association, the North Carolina School Boards Association, and South Carolina School Boards Association filed an amicus brief last year supporting the school district’s position. An adverse ruling could have impacted the widespread practice of school districts paying nominal stipends to school staff who volunteer to coach or lead extracurricular activities and force schools to close many of programs if their budgets could not handle the expense of regular wages for those volunteers.

“Given budgetary constraints, many school districts cannot afford to pay coaches regular wages, much less overtime pay,” said NSBA Executive Director Anne L. Bryant.

Read NSBA’s full analysis in Legal Clips.


Joetta Sack-Min|March 17th, 2011|Categories: School Board News, School Boards, School Law|
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