Articles in the School Law category

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: |

NSBA, N.C. school boards ask court to restore preK for at-risk children

The National School Boards Association (NSBA) and the North Carolina School Boards Association (NCSBA) are calling on the North Carolina Supreme Court to require the state to fulfill its commitment  to give all at-risk children an opportunity to attend pre-kindergarten programs to prepare them to succeed in school.

NCSBA and NSBA have filed an amicus brief in Hoke County Board of Education v. State of North Carolina that urges the Court to rule that the state legislature, through funding cuts and legislation that restructured the “More at Four” program, abandoned its constitutional responsibility to provide the services that would afford “at-risk” children equal access to the opportunity to receive a sound basic education. After expanding the “More at Four” prekindergarten program in response to previous court orders, the state legislature in 2011 severely limited access to the program through substantial budget cuts and caps on the percentage of at-risk children permitted to enroll.

“Research has proven countless times that a quality early childhood education benefits all children, and it is most beneficial for children living in poverty and other at-risk situations,” said NSBA Executive Director Thomas J. Gentzel. “Prekindergarten programs help the neediest children get the interventions they need so that they can succeed in elementary school and beyond.”

In a series of lawsuits that began two decades ago, the North Carolina Supreme Court held that all children residing in North Carolina have a state constitutional right to the “equal opportunity to receive a sound basic education.”

“The state chose to offer these critical prekindergarten programs to meet its constitutional obligations, and it must not be allowed to back away from that commitment,” said NCSBA Executive Director Ed Dunlap, Jr. “School boards across North Carolina are committed to giving each and every child, including those deemed at risk, a strong public education, and we hope the state will fulfill its obligations as well.”

Joetta Sack-Min|July 29th, 2013|Categories: Preschool Education, School Law, State School Boards Associations|Tags: , , , |

COSA panel: Design school diversity policies to meet educational goals

School district policies to promote diversity are still viable, and recent Supreme Court rulings have bolstered existing laws that allow narrowly defined diversity policies. Districts must be careful, however, to design policies that meet these standards.

A panel of prominent education attorneys gave their advice on how build policies and programs that meet the current legal standard during a July 16 webinar organized by the National School Boards Association’s (NSBA) Council of School Attorneys (COSA).

A ruling last month in Fisher v. University of Texas at Austin upheld a 2003 decision in Grutter v. Bollinger, which permitted the use of race in university admissions if such policies were narrowly tailored. That decision, as well as a 2007 ruling in PICS v. Seattle School Dist., has made diversity a more complex—but not impossible–area for school districts to navigate.

“Diversity is still in place and still very much supported by the federal government,” Anurima Bhargava, Chief of the Educational Opportunities Section at the U.S. Department of Justice, told the audience of school attorneys.

NSBA was pleased with the Fisher ruling because schools are able to put into place diversity policies that advance students’ educations and did not erode the existing laws, said NSBA General Counsel Francisco M. Negrón, Jr.

The panelists offered advice to help clarify the new ruling and how to create policies that will support student learning in a diverse environment. The first step, all agreed, is clearly defining the desired outcomes.

“As school districts consider voluntary diversity policies, it’s important to articulate why you have an interest in diversity,” said Negrón, who added that research shows a diverse student body can improve student learning and test scores. NSBA and the College Board filed an amicus brief in the Fisher case that noted diversity could promote 21st century education goals and that policies considering many student characteristics, including race and diversity, are essential for achievement.

School leaders also need to shift their thinking and view diversity as a means to their educational goals, not the district’s demographics or quotas, panelists said.

And institutions must be prepared to show very clearly that they considered race-neutral alternatives before instituting a race-conscious policy—they have to be clear that none of the race-neutral alternatives would work as well, the panelists said.

School districts also must periodically review their policies, particularly considering changing demographics and enrollments, noted John W. Borkowski, a partner with the Hogan Lovells law firm in Washington, D.C.

“You can’t have a policy that is permanent,” he said.

But the Fisher case is not the end of the story. Diversity policies also will be impacted by the Supreme Court’s 2013-14 term through Schuette v. Coalition to Defend Affirmative Action, a case from the U.S. Court of Appeals for the Sixth Circuit that will determine the fate of a proposal to amend the Michigan constitution to prohibit discrimination in public agencies, including public schools and universities. NSBA will argue in an amicus brief that the measure would restrict a school district’s abilities to use race-conscious policies to achieve diversity.

 

 

 

Joetta Sack-Min|July 17th, 2013|Categories: Conferences and Events, Council of School Attorneys, Diversity, Governance, School Boards, School Climate, School District Reorganization, School Law|

DOJ official joins NSBA panel to discuss school diversity ruling

The National School Boards Association’s (NSBA) legal department announced that Anurima Barghava, Chief of the Educational Opportunities Section of the U.S. Department of Justice (DOJ), will join its webinar to discuss the Supreme Court’s recent ruling in Fisher v. Univ. of Texas. The webinar will be held Tuesday, July 16 at 1 p.m. EDT.

Ms. Barghava and other national experts, including NSBA General Counsel Francisco M. Negrón, Jr., will offer unique insights on the Supreme Court’s June 24 Fisher decision, which addressed the University of Texas’ use of race or ethnicity in its evaluation of candidates for admission. NSBA joined The College Board in an amicus brief in the case, arguing that the Court should avoid any dilution of the 2003 Grutter v. Bollinger ruling that would undermine efforts to achieve diversity currently used throughout the spectrum of our public education system from kindergarten through post-secondary levels.

Now that the Court has weighed in, leaving Grutter undisturbed for now, will Fisher change the way public schools admit and assign students? Does this decision signal the Court’s likely direction in Schuette v. Coalition to Defend Affirmative Action, where it will address a Michigan voter initiative that banned racial preferences in admissions to the state’s public universities? Will Fisher affect K-12 assignment policies designed to promote diverse public school enrollment? Is this decision consistent with the DOJ and Office of Civil Right’s interpretation of PICS?

Other panelists include Teresa E. Taylor, Policy and Legal Advisor, EducationCounsel LLC and co-author of the amicus brief filed by The College Board and NSBA; and John Borkowski, Partner, Hogan Lovells, who advises school districts across the country on constitutional issues including race and diversity.

Register Now to Reserve Your Seat!

 

 

Joetta Sack-Min|July 15th, 2013|Categories: Announcements, Council of School Attorneys, Diversity, Federal Advocacy, School Law|Tags: , , , , , |

NSBA pleased with Obama administration’s decision to delay Affordable Care Act employer mandate

The National School Boards Association (NSBA) today applauded the federal government’s decision to delay the implementation of IRS rules for the Affordable Care Act (ACA) until January 2015, based upon the “complexity of the requirements and the need for more time to implement them effectively.”

On March 18, 2013, NSBA filed a comprehensive response  to the IRS’s proposed rules implementing  ACA to apprise the agency of the “unanticipated impact certain provisions of the proposed rule may have as public school districts across the country wrestle with questions” ranging from calculation of service hours to the so-called “large employer” determinations.

NSBA Executive Director, Thomas J. Gentzel said, “We are pleased that the IRS has heard our concerns about the need for clarification on the Affordable Care Act before the rules become final to minimize any adverse impact on the nation’s schools and students’ educational outcomes.”

In its comments to the IRS, NSBA raised concerns about the challenges the proposed rules would have on school employment arrangements such as long vs. short term teaching substitutes with consecutive assignment, independent contractors, additional extra-curricular duty providers, re-hired retired employees, and even pay for school board members.

NSBA General Counsel, Francisco M. Negrón, Jr. added, “We believe the IRS has made a prudent choice with regard to implementation of the Affordable Care Act.  School districts are in particularly challenging situation as employers, because of the unique part-time and full-time employment configurations they utilize.  We look forward to further clarification from the IRS that will help school districts effectively navigate this new legal framework.”

Governing highlighted NSBA in their story today Obamacare-Mandate Delay to Have Little Impact on Public Employers. The article noted:

Some groups, however, said they were pleased with the White House’s action. The National School Boards Association (NSBA), which represents school districts that collectively employ more than 6 million people nationwide, had submitted lengthy comments to the Treasury Department, asking for clarifications on issues specific to the public school sector. For example, substitute teachers who teach at different schools or part-time employees who perform additional duties, such as coaching, raise some unanswered questions about the initial guidance for calculating full-time employment, says Francisco Negron, general counsel for NSBA.

Tuesday’s announcement should allow the federal government, the school boards and other employers to continue the dialogue about these issues, he says, without the health reform law’s penalties looming in 2014.

“We were glad to see they have taken what we think for the time being is a prudent approach, to slow things down in response to our concerns,” Negron says. “This seems to suggest that they heard those concerns, and we can continue to work to make sure we are in compliance with the law.”

Education Week’s District Dossier also covered the delay announcement and what it means to school district in, Affordable Care Act Delay Means Reprieve for Districts, and cited NSBA.

Alexis Rice|July 3rd, 2013|Categories: School Boards, School Law, Teachers|Tags: , , , , |

Supreme Court rules in employment case and cites NSBA’s brief

The U.S. Supreme Court has favorably cited the National School Boards Association’s (NSBA) amicus brief in support of an important ruling that protects employers from lawsuits because of unwarranted claims of retaliation.

The June 24 ruling in University of Texas Southwestern Medical Center v. Nassar overrules a judgment by the U.S. Court of Appeals for the Fifth Circuit that created a higher standard for employers defending unsupported claims of retaliation.

Writing for the Court, Justice Anthony Kennedy cited NSBA’s amicus brief for the proposition that it would be against the intent of federal anti-discrimination laws to place economic and reputational costs on employers who did not discriminate.

The decision is particularly relevant for school districts because they often assign or transfer employees to improve teaching and learning and comply with federal and state mandates, and those actions can elicit lawsuits based on a perception of retaliation, NSBA noted in its brief.

“We are gratified that the Supreme Court views NSBA’s amicus briefs as a credible and important asset in its decision-making, particularly when those decisions bear greatly on the ability schools to carry out their educational mission,” said NSBA Executive Director Thomas J. Gentzel.

In its amicus brief, NSBA argued that a ruling to change the legal standard would have a severe impact on school district across the country and their more than 6 million employees, encouraging more lawsuits and stifling school leaders’ abilities to make decisions related to employee assignments.

“The Supreme Court has struck the right balance,” said NSBA General Counsel Francisco M. Negrón, Jr. “Anti-discrimination laws should not become a shield used by substandard employees seeking to invalidate legitimate employer action for poor performance.”

For more details about the case, see the article in NSBA’s Legal Clips.

Alexis Rice|June 26th, 2013|Categories: School Boards, School Law, Student Engagement|Tags: , , , , , , |

NSBA applauds Supreme Court’s school diversity ruling

The National School Boards Association (NSBA) lauded the U.S. Supreme Court’s decision today for upholding a 2003 case that finds schools have a compelling interest in pursuing the educational benefits of diversity.

In Fisher v. University of Texas at Austin, the Supreme Court voted to uphold its decision in Grutter v. Bollinger, which permitted the use of race in university admissions if such policies were narrowly tailored. The Court remanded the case to the Fifth Circuit Court of Appeals, which previously had ruled in favor of the university, for further review.

“NSBA is glad that the Supreme Court recognizes the value of diversity in the role of public schools,” said NSBA Executive Director Thomas J. Gentzel. “While this is a case that specifically involves higher education admissions, elementary and secondary schools also need the ability to consider diversity to promote student achievement.”

NSBA, joined by the College Board and 11 other educational organizations, filed an amicus brief in support of the University of Texas at Austin’s (UT) admission policy promoting a diverse student body.

The case centers on Abigail Fisher, a student who was denied admission to UT’s 2008 freshman class. More than 80 percent of the university’s students are admitted through a formula that automatically accepts the top 10 percent of each Texas high schools’ graduating classes; however, the alternate formula that was challenged by Fisher allows the university to use special circumstances as criteria for admission, including the socioeconomic status of the applicant or her high school, the applicant’s family status and responsibilities, and race.

In the majority opinion, Justice Anthony Kennedy reiterated the right of schools and universities to deference from the courts to educational decisions involving diversity. NSBA General Counsel Francisco M. Negrón, Jr., noted that NSBA’s amicus brief was designed in part to appeal to Justice Kennedy in its call to uphold Grutter.

“In upholding Grutter, the Court preserves an important framework available to schools to put into place diversity policies that advance the educational benefits of students,” Negrón said. “We are pleased that this decision does not erode the existing legal landscape for the K-12 diversity environment.”

For further analysis, read NSBA’s Legal Clips.

Alexis Rice|June 24th, 2013|Categories: Diversity, School Law, Uncategorized|Tags: , , |
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