Articles in the School Law category

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|

NSBA General Counsel discusses bullying on C-Span

NSBA General Counsel Francisco M. Negron Jr. appeared on C-Span’s Washington Journal on March 12 to discuss NSBA’s viewpoints on federal bullying policies and the overall concern of bullying and cyberbullying in schools. Negron answered numerous challenging questions from callers with a wide range of opinions from around the country.

The show followed the White House summit on bullying last week. View a replay of Negron’s 45-minute appearance on C-Span’s website, and read more about the White House summit here.

Joetta Sack-Min|March 14th, 2011|Categories: Announcements, Bullying, School Board News, School Boards, School Climate, School Law|

Supreme Court weighs schools’ role in child welfare interviews

The U.S. Supreme Court heard arguments on March 1 in a case that could complicate schools’ relationships with child protective services workers and hold schools responsible for ensuring that those authorities are within their rights when interviewing students at school.

NSBA is urging the high court to overturn the 9th U.S. Circuit Court of Appeals’ ruling in Camreta v. Greene, noting that schools must “act in a manner that protects the safety and welfare of the children in their care.” NSBA, the Oregon School Boards Association, and the California School Boards Association, filed an amicus brief in this case.

The case arose when a child protective services worker and police officer interviewed a student at an Oregon elementary school because they suspected her father was sexually abusing her. The girl’s mother later sued the school district, alleging that the caseworker and police officer violated the Fourth Amendment’s “search and seizure” protections when they interviewed her child.

In December 2009, the 9th U.S. Circuit Court of Appeals ruled in favor of the girl’s mother, saying that police and child welfare officials need a warrant, court order, parent consent, or emergency conditions to interview a child at school.

Schools are frequently called to assist child protective services agencies and law enforcement personnel in investigating reports of child abuse or neglect by permitting interviews of students at school, NSBA’s amicus brief notes. In some states, school officials are legally bound to cooperate.

“The ability of schools to protect students should not be chilled by the fear of making the wrong constitutional determination about the actions of law enforcement or child protective services as they investigate alleged abuse against a child,” said Francisco M. Negrón, Jr., NSBA’s General Counsel.  “The Supreme Court should issue a ruling that does not place schools in the untenable position of either risking a lawsuit or denying law enforcement/protective services access that may be in a child’s best interest.”

The case will be decided before the Court’s term ends on June 30.

Joetta Sack-Min|March 1st, 2011|Categories: School Board News, School Law|

Federal bullying definition raises concerns

A few months ago, NSBA General Counsel Francisco Negron received a “Dear Colleague” letter from high up in the U.S. Department of Education. It had to do with the department’s newly expanded definition of what constitutes bullying in the public schools.

“When anyone calls you a ‘colleague’ and puts ‘dear’ in front of it, you know you’re in for something,” Negron said Monday at an FRN Conference session.

Among others things, the letter redefines harassment from “severe, pervasive and objectively offensive” behavior to “severe, pervasive, OR persistent” behavior, Negron said.

And instead of holding school staff to an “actual knowledge standard” for responding – that is, they have erred if they knew about the harassment and did not address it – the letter said the standards should be “knows or reasonably should have known.”

“Bullying is bad,” Negron said. “We should be doing something about it. But the feds should not be doing things that expand the definition of bullying.”

The new definition will encourage lawsuits against school districts, Negron said. If a school districts points to case law adhering to the “actual knowledge standard,” Negron said, the plaintiffs might respond “But look, the feds say it right here” that they believe the standard should be “should have known.”

Also of concern is action by states such as New Jersey, which now specifies a timeline and procedure for handling bullying complaints.

“That’s going to take (local) discretion away,” Negron said. “You need to look out, because it might be coming to a legislature near you.”

Some school districts have responded to bullying and other forms of harassment in innovative and effective ways, Negron said. For example, the Tampa schools have a “bullying reporting button” that enables parents and students to report incidents directly to the principal.

NSBA has taken a strong position on bullying in schools for years, but particularly in recent months. The association’s response to the “Dear Colleague” letter is here. Last August, NSBA Executive Director Anne L. Bryant attended the first Federal Bullying Summit to discuss the issue and the concerns of school districts.

Lawrence Hardy|February 7th, 2011|Categories: FRN Conference 2011, School Board News, School Boards, School Law|

NSBA: High court ruling may lead to more employee lawsuits

The Supreme Court issued a ruling yesterday that will open the door for more claims against employers under Title VII, according to NSBA’s legal team.

The 8-0 ruling in Thompson v. North American Stainless, LP, addresses a situation where an employee was terminated after his fiancee, who formerly worked for the same employer, filed a sex discrimination complaint against the employer with the federal Equal Employment Opportunity Commission. The Supreme Court ruled that the employee had a valid claim for retaliation against the employer under Title VII.

The ruling may have particular significance with school boards. School districts, particularly those in rural areas, often employ family members–spouses, siblings, parent-child pairs. For a complete analysis, see NSBA’s Legal Clips.


Joetta Sack-Min|January 25th, 2011|Categories: School Board News, School Law|

Court ruling could harm schools’ abilities to assist in child-abuse investigations

NSBA is concerned that a case before the U.S. Supreme Court could interfere with school officials’ interactions with child welfare and law enforcement officials and force them to determine the constitutionality of requests to question a child at school.

NSBA, joined by the Oregon School Boards Association and the California School Boards Association, filed an amicus brief on Dec. 20 asking the high court to overturn the ruling by the 9th U.S. Circuit Court of Appeals in Camreta v. Greene.

The case stems from an incident at an Oregon elementary school. A police officer and child protective services worker requested permission to interview a girl, S.G., because they suspected her father was sexually abusing her and her sister. Later, S.G.’s mother sued the school district, alleging that the caseworker and police officer violated the Fourth Amendment when they interviewed her child without a warrant, probable cause, or parental consent.

The 9th Circuit ruled that police and child welfare officials need a warrant, court order, parent consent, or emergency conditions to interview a child at school. Doing so without one, the court decided, violated Fourth Amendment “search and seizure” protections of children.

Schools are frequently called to assist child protective services agencies and law enforcement personnel to help investigate reports of child abuse or neglect by interviewing students at school. If the 9th Circuit ruling is upheld, that standard would apply to all states, even though many states have laws requiring school officials to cooperate with child protective agencies and law enforcement in such cases.

“The 9th Circuit’s ruling places schools in the untenable position of either risking a lawsuit or denying law enforcement/protective services access that may be in a child’s best interest,” said Francisco M. Negrón, Jr., NSBA’s General Counsel.

Joetta Sack-Min|December 21st, 2010|Categories: Governance, School Board News, School Law|

NSBA brief: Employment case could lead to lawsuits against school districts

School employees could file more lawsuits and grievances against school district officials if the Supreme Court does not overturn a ruling by the 3rd U.S. Circuit Court of Appeals, according to an amicus brief filed by NSBA on Dec. 13.

NSBA argues in an amicus brief for Duryea v. Guarnieri that public employees should not be allowed to sue their public employers under the First Amendment’s Petition Clause when they have “petitioned” the government by filing employment grievances.

The case was brought by a police chief who was fired by the Duryea (Pa.) Borough Council. The police chief claimed his First Amendment rights were violated when the borough retaliated against him as a result of his successful appeal of the dismissal through the borough’s grievance process. The case is particularly relevant to school districts, collectively the largest employers in the country, where the internal grievance process is a common way of resolving employment disputes. A ruling for the employee could undermine existing protections created through state law, collective bargaining agreements, and school district policies.

“School employees have ample protections against retaliation,” said NSBA’s Executive Director Anne L. Bryant. “More lawsuits against schools districts are unnecessary and potentially disruptive, draining resources, and funds that should be spent in the classroom.”

NSBA also argues that the high court has properly drawn the line in prior rulings in which it concluded that public employees are only protected under the First Amendment for speech that is a matter of public concern, noting in the brief that “this distinction is critical to the ability of public schools to make employment decisions that further their educational mission to provide students with a safe learning environment conducive to acquiring the knowledge and skills they need to become productive, responsible citizens.”

“We hope the Court will adhere to its own precedent and again refuse to constitutionalize the employment grievance,” said NSBA’s General Counsel Francisco M. Negrón, Jr.

Joetta Sack-Min|December 14th, 2010|Categories: School Board News, School Law|

What is the feds’ role in school bullying?

Recent cases of bullying and harrasment in schools and universities have prompted the federal government to create policies and recommendations guiding schools on how to protect their students.

In October, the U.S. Department of Education’s Office of Civil Rights issued guidance reminding schools receiving federal funding that behavior considered bullying under a school’s bullying policy may also trigger the school’s responsibilities under federal civil rights statutes. In extreme cases, the agency could withhold federal funds.

NSBA’s General Counsel is now asking the Department of Education to clarify or reconsider portions of its recent guidance to schools on bullying and harassment related to federal civil rights laws, saying that the guidance would have many unintended consequences and could be extremely difficult for schools to implement.

Let us know what you think about the recent guidance from the Department of Education.

Alexis Rice|December 13th, 2010|Categories: Federal Programs, NSBA Opinions and Analysis, School Law, Student Achievement, Wellness|
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