Articles in the School Law category

What I learned at NSBA

stockvault_23675_20100203After three months as ASBJ‘s spring intern, I’ve written a lot of blogs and learned a lot about education, school boards and what it takes to help students succeed. In this, my final post, I thought I’d wax a little nostalgic and run down some of the things I’ve picked up.

First, I learned that well-run and maintained school boards are indispensible to public education, because they are the best entities at judging what students need, measuring progress, and coming up with programs and solutions that cater to schools on an individual and local level. 

Huge federal initiatives can be great at promoting ideals—like Michelle Obama’s Let’s Move campaign and its goal of fighting childhood obesity—but lasting change can only happen if school boards make it so. The federal government might not know the best way to overhaul a district’s lunch menu—but a school board would.

I learned that charter schools are actually public schools, and they might not be the miracle cure for the achievement gap that they’ve been lauded as.  I’ve seen that school law has not always caught up to the times, whether this means the 20 states that still have no law against corporal punishment, or the countless school districts without clear guidelines for digital student media.

I have been continually reassured that the simple answer is always best: naps can help you learn, a wide vocabulary is always an asset, and social networking has its place in schools as a promotional tool and a way to get feedback from the community.
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Naomi Dillon|May 12th, 2010|Categories: American School Board Journal, Policy Formation, School Law, School Reform|

KASB, COSA announce new scholarship to honor Kansas attorney

Working with the Kansas Association of School Boards, NSBA’s Council of School Attorneys (COSA) has created a new scholarship to give a school law attorney a valuable professional development opportunity.

The Pat Baker Scholarship, which is named in honor of former KASB General Counsel Patricia E. Baker, will provide travel and registration expenses for an attorney to attend the annual COSA School Law Seminar. In return, the “Baker Fellow” will provide a professional development service to his or her colleagues, such as writing a research paper or coordinating a webinar.

The scholarship, which is administered by COSA, is endowed by KASB, the Baker family and COSA members. Baker’s four children and their families were was on hand to announce the program at COSA’s 2010 School Law Seminar in April.

The first “Baker Fellow” will be selected in October 2010 to attend the next School Law Seminar, to be held April 7-9, 2011 in San Francisco.

“There are two really compelling reasons to attend the COSA law seminar,” said A. Dean Pickett, the immediate past chair of COSA and an attorney with  Mangum, Wall, Stoops & Warden, P.L.L.C., in Flagstaff, Ariz. “The first is to get really high-quality and up-to-date legal education from the best source in the country. The second is the opportunity for fellowship and networking with professional colleagues from all across the country.”

Baker, a graduate of Washburn University’s law school, was instrumental in the creation of COSA and served on its board for 11 years, including a stint as the 1989-90 chair. She was a staff attorney, senior legal counsel and associate executive director/general counsel at KASB for 30 years until her sudden death in December 2009.

KASB Executive Director John W. Koepke remembered Baker as “the consummate professional.”

“She loved the law, and she loved public education,” he said. “She relished the opportunity to utilize her skills as an attorney to advance the mission of student learning.  Pat believed that attorneys, including herself, should not take themselves too seriously.”

He added, ”Pat believed that all people, especially attorneys, should be obligated to give something back to those who helped them get ahead. Pat believed that COSA was the appropriate professional home for school attorneys and their greatest source of professional development.”

Applications for the scholarship, which will be given to a COSA member who would otherwise not be able to attend the event, are due October 1. For more information or to apply, go to www.nsba.org/cosa.

-Joetta Sack-Min

Joetta Sack-Min|May 10th, 2010|Categories: School Board News, School Law|

No nameplates and microphones? It’s still a meeting.

photo courtesy of stockvault.com

photo courtesy of stockvault.com

In the early 1990s, when I was a newspaper reporter in Wilmington, Del., the council members for Delaware’s largest jurisdiction — New Castle County — would gather at a different gourmet restaurant each month for a little pre-public-meeting dinner and chat. They apparently relished these times together, because they weren’t happy when the newspaper pointed out that their regular soirees were actually public meetings, and that if they wanted to dine at their fancy steak or seafood restaurants, that was fine — but they’d have to invite our reporter as well.

Talk about spoiling a party! The council members didn’t like it; but they complied. They had to. And my friend, the county council reporter and their sometime-nemesis, was only too happy to join them for their four-star meals – at the newspaper’s expense. It beat the pizza we reporters generally existed on back then.

Looking back on it, it all seems sort of quaint. Because today, if board members want to hold an illegal meeting, they don’t have to go Harry’s Savoy Grill (great place, by the way) to do it. They just have to send a few e-mails and wait for replies.

“This is a hot topic, and we expect it to get worse,” Dennis R. Bailey, a lawyer for the Alabama Press Association, says in my May story, “Open and Shut.”

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Lawrence Hardy|April 27th, 2010|Categories: American School Board Journal, Governance, School Law|

What’s in a word? School integration in the 21st century

stockvault_21720_20091110It’s an ugly word, a loaded word, and that’s why winning the argument to define it is so critical.

The word is “segregation.” To some, it means a codified system of racial separation, or perhaps also, an “informal” system in which racial separation is a primary goal.

To others, segregation is broader than that: It is, quite simply, the separation of racial and ethnic groups for whatever reason, whether intentional or not.

Count Gary Orfield, head of UCLA’s Civil Rights Project, in the second group. He has long pointed out the growing racial isolation — what he also calls segregation, and, even more explosively, “apartheid” — in U.S. public schools, and has been ridiculed for it.

“Here comes Gary Orfield again, hiding ideology beneath ‘science,’” wrote Sandy Kress, a former education advisor to George W. Bush, in a National Journal discussion of a CRP report that called charter schools “civil rights failures” because of their tendency to isolate students by race and ethnicity.
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Lawrence Hardy|April 21st, 2010|Categories: American School Board Journal, Diversity, School Law|

Supreme Court hears arguments on discrimination, employee privacy cases

Should a Christian student group be given a state university’s recognition and funding if it denies full membership to gays and nonbelievers — a stand contrary to the university’s nondiscrimination policy but in accordance with the group’s beliefs?

That was the question before the U.S. Supreme Court Monday in a case that pits the First Amendment’s right of religious expression against a university’s interest in promoting nondiscrimination. The case could have ramifications for K-12 education and schools’ efforts to build an inclusive environment.

NSBA has filed a brief supporting the University of California’s Hastings College of the Law, in San Francisco, which denied the Christian group recognition — and an assortment of benefits stemming from it, including college funding, use of student e-mail lists, and participation in an activities fair — because of its exclusionary policies.

NSBA General Counsel Francisco M. Negron Jr. said Monday that the issue is important to public schools because they rely on nondiscrimination polices to promote diversity and foster an inclusive environment.

“Our hope is that the Court understands the nondiscrimination policies are powerful tools in the K-12 context, where public schools have a strong interest in eliminating discrimination and ensuring access of all students to valuable extracurricular programs,” Negron said.

Speaking on behalf of Hastings, Former Solicitor General Gregory Garre said the university’s policy, which requires student groups open their membership to all students “regardless of their status or beliefs” is viewpoint neutral and adheres to state law in prohibiting discrimination in university programs.

The Christian Legal Society contends that Hastings’ nondiscriminatory policy is itself discriminatory and singles out Christian groups. “All student groups have the right to associate with people of like-mind and interest,” Senior Counsel Kim Colby, of the CLS Center for Law & Religious Freedom, said last year after the high court agreed to hear the case.

The Supreme Court also heard oral arguments in a the case of an Ontario, Calif., SWAT team officer who filed suit after the city searched his city-issued pager and found sexually explicit text messages. Sgt. Jeff Quon said that the search violated his privacy rights.

NSBA has filed a brief in support of Ontario, saying school districts need unfettered access to employees’ work-related communications, both to ensure student safety and maintain smooth operations.

“Almost all school districts have these policies in place that tell employees, ‘You have no expectation of privacy’” regarding communication on district-issued equipment such as cell phones and Blackberries, NSBA Deputy General Counsel Naomi Gittins said recently.

Last June, a three-judge panel of the U.S. 9th Circuit Court of Appeals overturned a lower court decision in City of Ontario v. Quon and ruled in favor of the police officer, who said his immediate supervisor had assured him and other members of the SWAT team that their messages would not be reviewed. The review was part of an audit to determine the number of text messages the officers were sending. However, a higher ranking officer overruled that supervisor, searched Quon’s pager, and found the personal messages.

The city had a written policy stating that phone messages and e-mails were subject to departmental review, but it did not specifically mention pagers, Gittins said. However, before the incident, police officers were told orally that their pager messages could be reviewed.

The Supreme Court is expected issue a ruling in both cases before the term ends in July.

-Lawrence Hardy

Lawrence Hardy|April 19th, 2010|Categories: Diversity, Religion, School Board News, School Climate, School Law|

Undocumented students

There is not a lot of case law on undocumented students, NSBA Attorney Lisa Soronen said today at an afternoon session. The exception–and it is a big one–is the 1982 Supreme Court case Plyler v. Doe, which struck down a Texas statute that, among other things, authorized public schools to bar illegal immigrants from enrolling.

“Obviously, no child is responsible for his birth,” wrote Justice William Brennan, quoting a decision from an earlier case, “and penalizing the . . . child is an ineffectual–as well as unjust –way of deterring the parent.”

Soronen was joined by Allison Brown Schafer, a counsel for the North Carolina School Boards Association. “It’s a very compelling case–very compelling language,” Schafer said.

Yet while Plyler sets a tone, it does not specifically address many issues involving the schooling of undocumented children, and states vary widely on the guidance they give to school districts. Soronen said Illinois is one of the states whose education department has addressed the issue and made recommendations to school districts.

“You can’t underestimate the value of state guidelines,” Soronen said.

NSBA and the National Education Association have recently published a short book that addresses many of these questions, Legal Issues for School Districts Related to the Education of Undocumented Children.  The book was written by John W. Borkowski of Hogan & Hartson and edited by Soronen.

Among the questions addressed are whether undocumented children have a right to participate in extracurricular activities. While Plyler did not address this issue, the book says that they “probably” have this right.

What about asking a child or his or her family whether they are undocumented?

“This is like the million dollar question,” Soronen said. “My suggestion is–don’t do it.”

For more on the subject, read the book here.

Lawrence Hardy|April 12th, 2010|Categories: NSBA Annual Conference 2010, School Board News, School Boards, School Law|

Teaching the Bible as literature

How can high school students understand the subtleties of great literature, such as To Kill a Mockingbird, Moby Dick, The Canterbury Tales, or the plays of Shakespeare, if they cannot recognize or put in context the biblical references in these works?

Can students really understand the historical and political development of the United States without understanding how the Bible influenced political, social, and cultural thought of Americans from colonial times to today?

Those questions have prompted hundreds of school districts to implement academically rigorous, non-prosthelytizing courses in English literature and social studies.

How some of these schools are doing that—yet avoid potential First Amendment conflicts involved in mixing religion and schools—was the topic of today’s Exhibitor Workshop sponsored by the Bible Literacy Project.

Although school boards should always consult with their local attorneys, the bottom line is that public schools are not barred from using the Bible as an educational tool, said the firm’s vice president, Deborah Hicks.

“We built [our program] in an academic way to address the Bible’s connections to literacy and historical documents, and the Bible’s impact on various aspects of culture,” she said.

Several state legislatures have adopted laws emphasizing the legal right to teach the Bible for secular, educational purposes, and today, 365 schools in 43 states are using The Bible and Its Influence—published by the Bible Literacy Project—in high school courses that examine the Bible’s role in literature or in history, Hick said. None have faced any legal challenge or significant public controversy.

Gaining public acceptance for these courses—and sidestepping legal challenges—takes work, panelists say. Bill Adkins, a consultant for the firm, said it’s important to approve a course description and rationale for the program that highlights its academic value. It’s also important to make course material available to ward off inaccurate rumors. 

Also essential to any successful implementation is the selection of a teacher who understands what’s at stake—and who gets some training in how to teach the course and guide students away from discussions that stray from the academic course, he said.

“I can tell you, as a former assistant superintendent,” Adkins said, “if I handed a Bible to a teacher and just sent them off, I’d be scared to death.”

Del Stover|April 12th, 2010|Categories: NSBA Annual Conference 2010, School Board News, School Law|

The Supreme Court and public schools

A Christian group barred from receiving university funds because of its exclusion of gays and nonbelievers has a point when it says that admitting them would controvert its basic beliefs, NSBA General Council Francisco M. Negron Jr. said today at a National Education Spotlight session on the U.S. Supreme Court and public schools.

If fact, Negron continued, given the conservative majority on the high court, the Christian group will probably win the case, which will be argued this month.

“So why are we in it?” Negron asked, noting that NSBA has filed a brief for the other side, the University of California’s Hastings College of law in San Francisco.

And here is where it gets complicated –and interesting. Despite their similarities, public colleges and public schools have one big difference: Public schools serve a younger, more impressionable population — one generally more prone to see school-sponsored groups as represent the views of the school itself — and schools have a strong interest in promoting nondiscrimination, Negron said.

“We’re talking about students who may range from small children to high school students, and their ideas are still forming,” Negron said.

Outside of prevailing in the case, what NSBA is hoping for is that the court won’t make the decision so broad in favor of the Christian group that it would apply to public schools in the same way, Negron said.

Whatever the outcome, Negron expects the case to elicit a lot of press– and some judicial speech-making — because of the publicity surrounding the impending retirement of liberal Justice John Paul Stevens and the future direction of the court.

“It’s a great opportunity for people to do a lot a posturing,” Negron said. “I think we’re going to get a lot of buzz around this case, so look for it.”

Negron also discussed several other cases, including the pending Supreme Court case City of Ontario v. Quon, in which the California jurisdiction said it had the right to examine test messages from a police officer’s department-issued cell phone. NSBA argued that the city has that right in a case Negron predicted would be decided in favor of Ontario.

Lawrence Hardy|April 12th, 2010|Categories: Educational Legislation, NSBA Annual Conference 2010, School Board News, School Boards, School Law|

Dealing with prickly religious issues in school

It’s really quite straightforward: When dealing with questions of religious expression in your school district, simply follow the First Amendment. And, as we all know, the First Amendment prohibits you both from establishing religion in your schools and preventing individuals from freely expressing their religious convictions.

So …. act accordingly.

In reality, of course, questions of religious expression are anything but straightforward, as the long history of school-related First Amendment cases shows. At an afternoon Meet the Experts session three school law attorneys – Seattle lawyer and former NSBA attorney Thomas Hutton, and Joy Baskin and Amy Magee of the Texas Association of School Boards – analyzed several recent cases and offered insight into dealing with issues that regularly come up in schools.

Be careful about thinking in terms of “majority rules,” Hutton said, because the First Amendment is concerned about the rights of individuals and the minority.

One recent situation concerned a teacher who asked each of her students to pick a favorite book to bring to school, and then read passages to the rest of the class. One girl chose the Bible. Should she have been allowed to read her passages?

As it turned out, Magee said, the teacher came up with a clever solution; she let the student read the passages (fulfilling the Free Exercise Clause) but had the girl read it “to her, alone, away from the other students” (satisfying the Establishment Clause).

Valedictorians who want to proselytize at graduation ceremonies, school board members who want to introduce prayers at meetings, students who want to lead prayers before football games – these are all difficult issues that have occurred recently in school districts.

But Hutton said school boards can have “a teaching role” as they guide their communities through these difficult issues.

To conclude, Hutton showed the audience an ink drawing of the Philadelphia “Bible Riots” in 1844, when fights broke out over the use of the King James Version and its alleged anti-Catholic bent.

“As ugly as these things can get today,” Hutton said, “we’ve really come a long way with tolerance and acceptance in our society.”

Lawrence Hardy|April 10th, 2010|Categories: Governance, NSBA Annual Conference 2010, School Board News, School Boards, School Law, Student Achievement, Teachers|

Preventing catastrophic sports injuries

Though catastrophic sports injuries are rare–approximately 1,300 such cases have been reported between 1982 and 2007– they are not only devastating to the individual but also to the school district, especially if the district is underinsured.

“How many of you have [insurance] policies that exceed $20 million?” asked Michael Patterson, a Seattle attorney and co-presenter of “Handling Catastrophic Personal Injury School Claims,” one of today’s sessions offered at the Council of School Attorney’s 2010 School Law Seminar.

“OK, only one of you raised your hand,” Patterson said, after peering out in the audience of mostly fellow school attorneys. “That means the rest of you have a problem.”

With typical jury verdicts for cases where the student suffered irreparable brain damage or was left quadriplegic averaging about $22 million, districts face huge financial liabilities when a young athlete is injured.

Unfortunately, sports injuries can and do happen but districts can minimize their risks by being proactive and making sure, for instance, that coaches are properly trained, student athletes are supervised, sports equipment is up-to-date and facilities and grounds are safe.

In the event a catastrophic injury or worse death does occur, however, districts must act quickly and strategically in order to stop the case from spinning out of control in the public eye and in the pocketbook.

Immediately after the injury has occurred, districts need to have a third party launch an investigation, identifying witnesses, securing any video footage and evidence, obtaining police and emergency reports, contacting first responders, and even talking with the victim’s family.

“You may have a primary carrier or an excess carrier, those are the ones you need to be communicating with and getting them on board from day one,” Patterson said. “Because one of things I’ve seen is [districts] didn’t put them on notice and the excess carrier will say, you breached the terms of our contract because you didn’t notify us immediately and we’re terminating you.”

In addition to starting the discovery process and notifying insurance representatives, districts must also be aggressive about launching a communications campaign.

“Do not think you don’t have to put together a media plan because you do, everyone will be asking questions, putting together funds for this individual that the community is rallying around,” Patterson said.

Districts need to have a press release ready and identify a spokesman and clear chain of command before the media begins calling.

Lastly, districts would be wise to identify experts of that particular case, whether it is a respected football coach or a head trauma specialist, because if they don’t find and secure those subject matter experts, the plaintiff’s lawyers will.

“The best defense is an aggressive defense,” Patterson said. “Do your strategic planning immediately, get all of your key players together … and get your insurance carriers on line and don’t let them off the hook.”

Naomi Dillon|April 10th, 2010|Categories: NSBA Annual Conference 2010, School Board News, School Law, Wellness|
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