Articles in the School Law category

NSBA, NEA, and AASA issue FAQs to help schools and their employees understand same-sex marriage benefits

The recent U.S. Supreme Court ruling in United States v. Windsor that struck down the federal Defense of Marriage Act (DOMA) impacted more than a thousand federal laws providing benefits to spouses. To help school districts across the nation better understand this important ruling and the changes they will need to make, the National School Boards Association (NSBA) has led an effort to develop a list of frequently asked questions (FAQs) in partnership with the National Education Association (NEA) and the AASA, the School Superintendents Association, on school district employers’ and employees’ issues related to the DOMA ruling.

The new document, “The Dos and Don’ts of DOMA: FAQs for school systems and employees on the United States Supreme Court ruling on same-sex marriage” reviews how employee benefits and plan and policy administration are affected by the ruling, including every policy and benefit that defines or refers to marriage or spouses in the application of a federal benefit. As U.S. school districts employ nearly 6.2 million individuals, the ruling has extensive reach.

“School districts are collectively the largest employers in the U.S. and they need to be aware of how this pivotal ruling changes employee benefits and benefit administration,” said NSBA Executive Director Thomas J. Gentzel. “This is a major breakthrough in federal employment law, and this document will help clarify the many questions school systems and employees will have as the Court’s ruling is implemented.”

Currently, 14 states and the District of Columbia recognize same-sex marriages, and the ruling will impact certain federal benefits and rights in all states and could impact collective bargaining agreements. Federal agencies are currently reviewing the ruling under direction from President Obama to implement the Court’s decision “as quickly as possible.”

“The Supreme Court decision in United States v. Windsor was a major milestone in American history—a monumental decision and a huge step forward for civil rights,” said National Education Association President Dennis Van Roekel. “The National Education Association in partnership with other national labor organizations filed an amicus in the case to document the need for the Court to end the substantial economic discrimination DOMA inflicted on lawfully married same-sex couples. In the wake of the Windsor decision, NEA is pleased to collaborate with the National School Boards Association and the School Superintendents Association on the DOMA Do and Don’ts publication to make sure that school districts and their employees understand how the Windsor decision affects their benefits.”
Key to the DOMA ruling is that employees in a same-sex marriage must receive the same benefits provisions as employees in an opposite-sex marriage, regardless of the state in which they live.

“Married couples should have access to fundamental benefits such as health care and social security,” said Daniel A. Domenech, Executive Director of AASA, The School Superintendents Association. “We were pleased to collaborate with the National School Boards Association and the National Education Association on this document because it provides important information for school system leaders and their employees about an important issue that affects many individuals and their families.”

Alexis Rice|October 30th, 2013|Categories: School Boards, School Law, Teachers|Tags: , , , , |

COSA seminar guides school attorneys on newest legal trends and challenges

School attorneys from across North America learned about new topics and trends in education law at the National School Boards Association’s Council of School Attorneys’ 2013 School Law Practice Seminar, held Oct. 10-12 in Nashville, Tenn.

“The event’s program gave school attorneys an opportunity to dive deep into issues they face every day in their busy practices, and to look at some issues from a fresh perspective,” said COSA Director Sonja Trainor. “Our attendees were particularly engaged in the networking events, where they interacted with colleagues and corporate partners facing the same issues.”

Hot topic sessions tackled student privacy in the cloud computing era, armed guards in schools, and the latest on the Affordable Care Act (ACA). The student privacy panel included technology law expert and COSA member Dotti Bollinger, Microsoft’s Steve Mutkoski and COSA board member Phil Hartley, who guided the audience through the evolving legal standards affecting student data privacy in the cloud. Former COSA Chair Tom Wheeler and COSA member Joe Tanguma provided an overview of liability standards for schools faced with violence, and noted the widely differing approaches taken by various states regarding arming school staff.

COSA member Chris Stevenson and NSBA Senior Staff Attorney Leza Conliffe presented attendees with an update on employer-related issues of the ACA, known as Obamacare. They discussed the implications of the employer mandate, a.k.a. the “Pay or Play” penalties, and the upcoming requirements the latest IRS rules place on school districts, as employers, in the areas of collecting and disclosing information about insurance coverage of all of its employees, their spouses and dependents, and the collection of an additional Medicare tax for a district’s high wage earners.

Attendees also addressed every-day issues such as involuntary resignation and constructive discharge, intellectual property creation and fair use, and litigation practice – including a poignant session on working with child witnesses. They heard COSA member D. Scott Bennett, whose son suffers from a severe form of autism, describe the fears and priorities of parents of disabled students.

“Autism presents unique challenges, and the parents’ well-being tends to ebb and flow depending on the child’s symptoms and behavioral condition,” Bennett wrote in a recent research paper. He advised school attorneys and educators to collaborate with parents and show them multiple strategies to foster the best educational experiences for students with Autism Spectrum Disorder and other disabilities.

Attendees also participated in interactive sessions addressing recent guidance from federal agencies on issues such as participation of students with disabilities in athletics and the appropriate use of pre-employment criminal background checks.

State school board association attorneys attended pre-seminar meetings on Oct. 10. At a lunch event on Oct. 11, attendees found their way to roundtable discussions on many different topics. Reauthorization of the Individuals with Disabilities Education Act, student data and cloud computing, international student travel, and labor negotiations were particularly popular discussion topics.

NSBA Executive Director Tom Gentzel noted the integral role COSA plays in the advocacy work of NSBA at the opening general session of the conference. NSBA President David Pickler, a practicing attorney, joined his colleagues at the practice seminar. At the seminar reception hosted by Lewis King Krieg & Waldrop and the Tennessee Council of School Board Attorneys, he welcomed attendees to his home state and invited COSA attorneys to join NSBA’s grassroots work to support public education.

NSBA General Counsel Francisco M. Negrón Jr. updated school attorneys on NSBA’s Legal Advocacy Agenda. He highlighted NSBA’s amicus work in recent and upcoming Supreme Court cases addressing diversity in student assignment and employer liability for claims of discrimination. He also noted NSBA’s recent amicus work in federal courts of appeal in student-related cases in which the Departments of Justice and Education have filed amicus briefs opposing the school district’s position.

COSA members and NSBA staff also took a moment to remember former NSBA General Counsel Gus Steinhilber, who passed away in August. He was remembered as a kind and generous friend, an avid outdoorsman, and a lifelong supporter of public schools and the attorneys who advocate on their behalf.

For more information on COSA events, go to www.nsba.org/SchoolLaw/COSA.

Joetta Sack-Min|October 18th, 2013|Categories: Affordable Care Act, Conferences and Events, Council of School Attorneys, Diversity, School Law|Tags: , , |

COSA annual conference examines diversity, school law issues

Special education, employment law, school safety and diversity are the hot topics this week at the National School Boards Associations’ (NSBA) Council of School Attorneys’ (COSA) annual School Law Practice Seminar in Nashville, Tenn.

“COSA’s fall seminar is our chance as attorneys to dig deep into the weeds of school law issues facing our public school clients, to discuss approaches and solutions with colleagues, and to get an update on the national legal advocacy work of the National School Boards Association,” said Allison Schafer, the 2013-14 COSA Chair and Legal Counsel for the North Carolina School Boards Association.

In the opening discussion, Metropolitan Nashville Public Schools Superintendent Jesse Register will discuss his plans to move beyond desegregation litigation to a groundbreaking diversity management plan. The accompanying panel will also discuss the broader issue of diversity in school settings after the U.S. Supreme Court ruling in Fisher v. University of Texas at Austin as well as upcoming cases for the 2013-14 term.

Other COSA sessions will be led by experienced school attorneys on relevant issues such as “Student Privacy Concerns in the Cloud Computing Era,” “Responding to the EEOC’s Guidance on Criminal Background Checks,” “the NSBA Legal Advocacy Agenda,” and “Adventures in Ethics.”

Joetta Sack-Min|October 9th, 2013|Categories: Announcements, Board governance, Conferences and Events, Council of School Attorneys, School Law, School Security|Tags: , |

New school law webinars examine the Family Educational Rights and Privacy Act

The National School Boards Association’s (NSBA) Council of School Attorneys (COSA)  is hosting a two-part webinar series on the Family Educational Rights and Privacy Act (FEPRA). Register today to learn more about this important topic.

Here are details on the sessions:

September 11, 2013 – FERPA Session 1: The Family Educational Rights and Privacy Act Inside and Out

Veteran in-house counsel Margaret-Ann Howies presents an engaging look at FERPA through the lens of a very real and traumatic school shooting. Here’s your chance to learn – or brush up on – the ins and outs of the federal law that permeates school district operations, FERPA. We’ll start with the basics: What is an education record covered by FERPA? When can personally identifiable information about a student be released and to whom? Are emails education records? Then, we’ll move into recent questions: May a school district store student records in “the cloud?” When does an “emergency” cease, thereby triggering the consent requirement? What if the student is deceased? What if the student has changed names? Become FERPA conversant in just over an hour.

1:00 p.m. – 2:15 p.m. (EDT)

Host: Sonja Trainor, Director, NSBA Council of School Attorneys

Presenter: Margaret-Ann Howie, General Counsel, Baltimore County Public Schools

January 15, 2014 – FERPA Session 2: School Videos and Student Privacy – What’s the Final Rule?

Few issues have caused such widespread consternation for school districts and their attorneys than the following: to what extent are school videos education records covered by FERPA? NSBA requested clarification from the U.S. Department of Education years ago. Join a seasoned school lawyer for a distillation of the current state of the law and “unofficial” guidance from the Department’s Family Policy Compliance Office.

Time: 1 p.m. – 2:15 p.m. (EST)

Host: Sonja Trainor, Director, NSBA Council of School Attorneys

Presenter: Sarah Craven Clark, Deputy Director of Legal Services, Ohio State Association Counsel

Learn more and register now.

 

 

Joetta Sack-Min|September 10th, 2013|Categories: Council of School Attorneys, Federal Programs, Governance, School Law|Tags: , , , , |

School Boards urge U.S. Supreme Court to review Kentucky student “Miranda” case

The National School Boards Association (NSBA) and the Kentucky School Boards Association (KSBA) are urging the U.S. Supreme Court to review a Kentucky state supreme court decision that would force schools to issue Miranda warnings to students when questioned by school officials in the presence of school resource officers.

NSBA and KSBA are joined by 15 other education groups, including the American Association of School Administrators and the National Association of School Resource Officers, and local educational cooperatives in an amicus brief to the high court in Commonwealth of Kentucky v. N.C. The brief maintains a recent ruling by the Kentucky Supreme Court is too rigid and restricts school administrators’ ability to react quickly to dangerous situations. The ruling also mischaracterized the role of school resource officers, who perform numerous duties such as student counseling, instruction, and public safety and law enforcement functions, and it limits their abilities to keep schools secure.

“School officials must be allowed to use their professional judgment to handle student disciplinary matters and maintain safety in the unique and often complex school environment,” said NSBA Executive Director Thomas J. Gentzel. “School boards must be vigilant about protecting all students’ safety, and this decision by the Kentucky Supreme Court undermines their abilities.”

The case involves a student who had confessed to a school principal, with a school resource officer present, that he had given a banned substance to another student. Ignoring a lengthy list of other decisions regarding the role of school officials and the use of Miranda rights in the context of a K-12 school environment, the Kentucky high court ruled that the student was not read his Miranda rights and thus his confession could be suppressed.

It is particularly important for school administrators and school resource officers to build lines of communications with their students, who are usually their primary source of information about issues that impact school safety, such as drugs or weapons, so that they can preserve a safe school climate. By forcing school resource officers to read Miranda rights, this ruling would intimidate students and chill these important sources of information.

“School resource officers have become integral preventive safety tools in hundreds of Kentucky schools. They interact every day with administrators and students alike,” said David Baird, Interim Executive Director of KSBA. “Our members feel the court ruling unjustly drives a wedge in this process that could keep critical safety information from being shared by students with principals or security officers.”

Alexis Rice|August 29th, 2013|Categories: Discipline, School Law|Tags: , , , , |

LSBA: U.S. Justice Dept. action in Louisiana vouchers shows weakness of law

The U.S. Department of Justice has filed a lawsuit against Louisiana to stop a voucher program spending millions in taxpayer funds to send low-income students to private and religious schools, saying that the vouchers have impeded long-standing desegregation orders in many of the state’s school districts.

The National School Boards Association (NSBA) joined the Louisiana School Boards Association (LSBA) in a lawsuit last year challenging the legality of the voucher plan, which was pushed by Gov. Bobby Jindal and GOP lawmakers. The LSBA lawsuit ultimately prevailed when the state’s Supreme Court found the funding mechanism to be unconstitutional but the GOP-led legislature is attempting to keep the program alive through alternative funding sources.

LSBA has closely monitored desegregation litigation in Louisiana for many years. LSBA Executive Director Scott Richard noted that many school boards have spent millions of dollars in order to attain unitary status and freedom from federal oversight due to past discriminatory practices—and this latest round of legal problems with the Louisiana voucher program only exacerbates the issues raised in the recent state Supreme Court ruling that struck down the law and highlighted the program’s illegal funding schemes.

“The fact that the U.S. Department of Justice has to get involved at this point again punches holes in the flawed legislation,” Richard said. “It is irresponsible that state government in Louisiana, with all of the legal resources available, would move forward with this effort fully knowing that many school districts continue to be under federal desegregation orders – basically ignoring federal law.”

Proponents for the voucher plan have decried the federal government’s move and argued that the vouchers help low-income students “escape failing schools.” However, LSBA and other education groups have countered that the plan actually allows kindergarteners zoned for high-achieving public schools—those graded A or B—to receive vouchers as well.

Thirty-four school districts, of which 22 send students to private schools using voucher funds, would be subject to the Justice Department’s ruling, according to the New Orleans Times Picayune.

 

 

 

Joetta Sack-Min|August 28th, 2013|Categories: Educational Finance, Governance, Privatization, School Boards, School Law, School Reform, School Vouchers, State School Boards Associations, Uncategorized|Tags: , , |

NSBA mourns death of longtime colleague Gus Steinhilber

Gus Steinhilber

Gus Steinhilber

August W. Steinhilber Jr., NSBA’s former General Counsel, Associate Executive Director, and head of NSBA’s Office of Federal Relations, died on August 20 at age 81.

Steinhilber, who was known as “Gus,” helped build NSBA’s Federal Relations Network and greatly expanded the organization’s lobbying efforts on Capitol Hill during the Carter and Reagan administrations. He worked at NSBA from 1968 to 1998, and prior to NSBA, he served in the U.S. Department of Health, Education, and Welfare as the deputy assistant commissioner of education for legislation.

“Over the 28 years we worked together he fought every day for cause of public education and loved every minute of it,” said Michael A. Resnick, NSBA’s Associate Executive Director for Federal Advocacy and Public Policy.

During his tenure as NSBA General Counsel, he filed over 50 amicus briefs in the United States Supreme Court, advanced the organization’s legal advocacy efforts, and provided leadership for NSBA’s Council of School Attorneys (COSA).

After retiring from NSBA, Steinhilber continued to be involved in school law through NSBA’s Council of School Attorneys, and he also worked as a counsel for the Maryland law firm of Reese & Carney, LLP. In 2005, COSA honored Steinhilber with its Lifetime Achievement Award for exemplary leadership and distinguished service. He is remembered as a strong advocate for public education and the school law profession.

Joetta Sack-Min|August 23rd, 2013|Categories: Announcements, Council of School Attorneys, Federal Advocacy, School Law|Tags: , , |

School boards concerned about federal proposal to expand school data collection

The National School Boards Association (NSBA) is opposing a burdensome and confusing expansion of data collected on students and school districts proposed by the U.S. Department of Education’s Office for Civil Rights (OCR).

NSBA questions whether some of the requested data would be relevant to OCR’s duties—as well as whether OCR has the legal authority to request certain data—in a letter  to the Office of Management and Budget (OMB), which has asked for public comment before it determines whether to allow the expansion. Such an expansion also would place an expensive and time-consuming burden on schools and create confusion between OCR’s interpretations of federal law and public school districts’ actual obligations under their own state laws, NSBA’s letter notes.

“The Office for Civil Rights does not have the authority to collect data in some of these proposed areas, nor should it need that data to conduct its job,” said NSBA Executive Director Thomas J. Gentzel. “By expanding the scope of inquiry further into a school district’s operations, the Office for Civil Rights is forcing a school district to expend time and resources on extracting and reporting data that won’t assist in the improvement of students’ educations or civil rights compliance by districts.”

For instance, OCR is asking to collect information on absenteeism rates, an item that NSBA’s letter notes may be valuable for other purposes but does not pertain to civil rights issues in the areas monitored by OCR.

Further, some of the definitions in the proposed data expansion raise concerns about the quality and integrity of the data to be collected because the categories are ill-defined and confusing. For instance, a category that would require school districts to report “incidents triggering discipline” directs schools to count “criminal act[s],” a definition that will engender divergent reporting due to variances in state criminal codes.

“This lack of clarity creates a subjective interpretation of the definitions of incidents, and would likely lead to misreporting or double counting of certain incidents because there is no guidance on the new categories,” said NSBA General Counsel Francisco M. Negrón, Jr. “The proposed changes imply that the agency is searching for data to support preconceived hypotheses about public schools.”

NSBA is also urging the OMB to reject a mandate that school districts provide OCR with the contact information for a district’s civil rights coordinator, and encourages OCR to engage in the better practice of working through a district’s attorney when carrying out enforcement obligations or investigating claims.

Alexis Rice|August 22nd, 2013|Categories: Federal Advocacy, Federal Programs, School Boards, School Law|Tags: , , , |

School boards urge federal appeals court to follow precedent regarding harassment cases

The National School Boards Association (NSBA) joined the Texas Association of School Boards (TASB) in urging the U.S. Court of Appeals for the Fifth Circuit to follow standards—carefully developed by U.S. Supreme Court rulings—for determining a school district’s liability in cases of harassment.

NSBA and TASB filed an amicus brief in Lance v. Lewisville Independent Sch. Dist. that maintains school districts should not be held liable under Section 504 of the Rehabilitation Act, which prohibits recipients of federal funds from discriminating on the basis of disability, in instances where school officials tried but were unsuccessful in completely stopping the harassment.

The amicus brief asks the court to follow the U.S. Supreme Court rulings that follow long-established standards to hold a district liable under federal anti-discrimination laws.  Those cases hold schools liable only where school officials with appropriate authority deliberately refuse to take action to respond to known actions of harassment. NSBA and TASB caution the court against using the informal guidance issued by the U.S. Department of Education’s Office of Civil Rights’ (OCR) in an October 26, 2010 “Dear Colleague” letter as the legal standard to impose monetary damages in such cases.

“The U.S. Department of Education’s Office of Civil Rights is advocating for an expansive standard of liability that would hold schools responsible in virtually all cases where harassment was not completely eliminated despite the district’s efforts to protect students,” said NSBA Executive Director Thomas J. Gentzel. “That is not what the law intends, and it would be an unprecedented change from previous Supreme Court rulings.”

The lawsuit was brought by parents of a student with Attention Deficit Hyperactivity Disorder, who committed suicide at school when he was in fourth grade. Although the school had provided a full psychological evaluation and responded to complaints of harassment, the parents sued the school district on allegations that the school district’s failure to do enough to stop the continuing harassment of their son. Recognizing longstanding precedent, the lower court ruled that the parents could not demonstrate that any district employee had intentionally discriminated against the student solely on the basis of his disability.

“While this case stemmed from a tragic situation, courts should refrain from adopting OCR’s ‘national standard’ and continue to defer to the judgment of educators who are knowledgeable about their communities, work closely with students in their schools, are aware of community resources, and understand the educational and emotional needs of the children entrusted to their care,” said TASB Executive Director James B. Crow.

Read more insights on NSBA’s Legal Clips.

Alexis Rice|August 7th, 2013|Categories: School Law, Special Education|Tags: , , , , |

Register today for 2013 COSA conference in Nashville

The National School Boards Association’s Council of School Attorneys (COSA) will host its 2013 School Law Practice Seminar Oct. 10 to 12 in Nashville, Tenn. Join other school attorneys from across the U.S. and Canada for the premier school law event, where participants will drill down to the meaty issues, discuss shared challenges, and grow as school attorneys and colleagues.

Highlights of the event will include early bird sessions, which feature specialized and timely discussions on special education and autism, and employment law. The seminar’s opening general session, “From Desegregation to Diversity,” will be presented Thursday morning by John W. Borkowski, Hogan Lovells, Jesse Register, Metropolitan Nashville Public Schools and Leonard Stevens, Leonard Stevens Consulting. Friday morning kicks off with “Evaluating Mental Health Needs in Light of Safety and Security Concerns;” NSBA’s Legal Advocacy Agenda with NSBA’s General Counsel, Francisco M. Negrón, Jr.; and Student Privacy Concerns in the Cloud Computing Era.

Other sessions will discuss ACA health insurance shared responsibility penalties, intellectual property and fair use, and defining equal opportunity in school-sponsored extracurricular activities; and school law trial practice.

The conference concludes on Saturday with two dynamic presentations, titled, “Armed Guards in Schools,” and “Adventures in Ethics: Will You End Your Career with Integrity or Will You be Eaten by a Bear?”

Attendees can earn up to 11.5 hours of CLE credit in the process.  Check out the program and register at the seminar website!

 

 

Joetta Sack-Min|August 7th, 2013|Categories: Announcements, Conferences and Events, Council of School Attorneys, School Law, School Security|Tags: |
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