Articles in the School Law category

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: , , |

School boards speak out in upcoming Supreme Court employment case

The U.S. Supreme Court should not allow employees to file constitutional lawsuits for alleged age discrimination because employees already have ample legal remedies in place, the National School Boards Association (NSBA) and the Illinois School Boards Association say in an amicus brief.

The brief in Madigan v. Levin urges the Court to deny an employee’s ability to add an Equal Protection Clause claim to a lawsuit that alleges age discrimination against the employer. NSBA argues in the brief that the Age Discrimination in Employment Act (ADEA), the main federal employment law that protects individuals over the age of 40, provides the employee sufficient avenues for resolution and remedies for discrimination. Under the ADEA, older employees may sue employers, including school districts, for damages, back pay, reinstatement, injunctive relief, and attorney fees. If the Supreme Court holds that employees are also allowed to concurrently sue under the Equal Protection Clause, school district staff, teachers and officials will be personally liable for monetary damages.

“School districts often make district-wide employment decisions based upon student educational needs that impact both new and veteran employees,” said NSBA Executive Director Thomas J. Gentzel. “They should be able to make these decisions using their best professional judgment to ensure student achievement without the needless fear of constitutional claims.”

School districts are particularly vulnerable to age-discrimination lawsuits because a majority of school employees are 40 or more years old. School districts may take employment actions to serve their educational goals that affect these older employees to a greater degree than younger staff. For instance, if a school district attempts to reassign more experienced teachers, who are likely to be older, to an academically struggling school, those teachers might resist the assignment by filing an age-discrimination lawsuit.

The case was spurred by a former assistant attorney general in Illinois, Harvey Levin, whose job was terminated when he was 60 years old. He sued the State of Illinois, the Illinois Attorney General, and several other employees in their official and personal capacities under both the ADEA and the Equal Protection Clause. The lower court has ruled that the employee can bring claims under both laws.

“If the Supreme Court affirms the Equal Protection Clause as a means for addressing alleged age discrimination, this case could mean prolonged, expensive litigation and potential personal liability of school officials,” said NSBA General Counsel Francisco M. Negrón, Jr. “The net result would be a chilling effect on school officials’ ability to properly supervise personnel out of fear of personal liability.”

Alexis Rice|June 11th, 2013|Categories: School Boards, School Law, Teachers|Tags: , |

NSBA announces upcoming school law webinars

The National School Boards Association’s (NSBA) Council of School Attorneys (COSA) offers online learning experiences for attorneys who represent schools. Here are the upcoming June 2013 webinars pertaining to U.S. Department of Education’s Office for Civil Rights issues.

June 11, 2013 1-2:15 p.m. EDT

Types of OCR Investigations and Their Outcomes

Leza Conliffe, NSBA Senior Staff Attorney and former practitioner in Northern Virginia as well as OCR, discusses the characteristics of different types of investigations OCR conducts. Leza will review the myriad contexts in which these investigations can occur, what these investigations look like in real time in terms of staff and district operations, and the ways OCR complaints are brought to closure.

June 18, 2013 1-2:15 p.m. EDT

Nuts & Bolts of an OCR Investigation: From Initial Notice to Closure Letter

On the final webinar on OCR investigations, NSBA Senior Staff Attorney Leza Conlife takes us through an OCR investigation step-by-step from the time the school district receives the complaint to when OCR closes the case. During this conversation, we will discuss preparing the initial response to the complaint; handling OCR document requests, site visits, and OCR interviews with staff and students; negotiating resolution agreements, and addressing various situations that develop along the way.

To register, go to https://secure.nsba.org/register/webinar. If you have questions regarding your registration, please contact Lyndsay Andrews at 703-838-6738 or landrews@nsba.org.

Purchase archived webinars, including the very popular Affordable Care Act: Its Major Components and What They Mean for School Districts, and Investigating and Responding to Complaints of Bullying, at http://allendsmeet.com/cosa/.

 

Alexis Rice|May 22nd, 2013|Categories: Multimedia and Webinars, School Law|Tags: , , |

NSBA asks the U.S. Education Department for clarification to accommodate students with disabilities in athletic programs

The National School Boards Association (NSBA) is calling on the U.S. Department of Education’s Office of Civil Rights (OCR) to better explain its guidance for students with disabilities’ participation in school sports. NSBA has issued a letter  urging OCR to reach out to school boards and educators before issuing wide-reaching guidance that can be construed as statements of agency policy. Among other things, NSBA warns OCR that the guidance issued through a Jan. 25, 2013 “Dear Colleague Letter,” could cause uncertainty in the courts and invite misguided litigation.

“School boards are committed to safely accommodating students with disabilities in athletic programs, ” said NSBA Executive Director Thomas J. Gentzel. “We encourage the U.S. Department of Education’s Office of Civil Rights to work with us to find mutually workable, realistic, and practical solutions to implement existing laws.”

NSBA asks OCR to clarify several areas in the “Dear Colleague” letter that suggest the agency is taking a more expansive view of it authority to enforce Section 504 of the Rehabilitation Act, including its guidance on individual student assessments for sports. NSBA also urges OCR to clarify that it is not adding new requirements nor establishing a new enforcement standard.

“The U.S. Department of Education’s Office of Civil Rights should clarify that its ‘guidance’ is merely a menu of suggested options for school districts and not the statement of new requirements subject to federal enforcement,” said NSBA’s General Counsel Francisco M. Negrón, Jr. “Recent similar guidance has resulted in confusion in the courts about applicable legal standards.”

This expansion of executive authority under the guise of agency guidance is one concern cited by NSBA in its support of the “Local School Boards Governance and Flexibility Act,”(HR 1386). That bill aims to ensure the Department of Education’s actions are consistent with federal law and are educationally, operationally, and financially supportable at the local level. To prevent regulatory overreach into local school board matters, the bill would also require the Department of Education to follow specific steps before promulgating , rules, grant requirements, guidance documents, and other regulatory materials.

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

NSBA encourages U.S. Supreme Court to clarify school district responsibility for student’s mental health treatment under IDEA

The National School Boards Association (NSBA) urges the U.S. Supreme Court to make it clear that school districts are not required to pay for a student’s mental health services in a residential care facility if those services are not needed primarily for educational purposes.

In an amicus brief, NSBA and the Colorado Association of School Boards are asking the High Court to review Jefferson County School District R-1 v. Elizabeth E.,  a case from the U.S. Tenth Circuit Court of Appeals, and clarify the limits of the tuition reimbursement provision of the nation’s main special education law, the Individuals with Disabilities Education Act (IDEA).

“School districts are dedicated to educating children with disabilities, but federal law should recognize that they are not designed or funded to function as medical care providers,” said NSBA Executive Director Thomas J. Gentzel. “Districts should not be required to pay for expensive health services that are needed primarily for medical treatment of mental health issues, not educational needs, because those would be beyond the scope and intent of IDEA.”

The case involves Elizabeth E., a student in Jefferson County, Colo., who was diagnosed with several mental health conditions. Until the eighth grade, she attended a private school, for which the Jefferson County Public Schools agreed to pay half the tuition. When Elizabeth’s behavioral disabilities began escalating, her parents unilaterally placed her in a residential treatment center out of state and sought reimbursement from the school district.

The U.S. Tenth Circuit Court of Appeals ruled the parents were entitled to reimbursement under IDEA. The appeals court reached its decision by creating an entirely new standard that added more turmoil to an area of law in which other courts have already devised several conflicting standards, leaving no clear guidance for school districts.

“We urge the High Court to reverse the Tenth Circuit’s ruling which would require public schools to bear mental health care costs under the IDEA in a manner unintended by Congress,” said Francisco M. Negrón, Jr., NSBA’s General Counsel. “The high costs associated with such an interpretation of the IDEA could ultimately undermine the ability of public schools to provide educational services for all children.”

Learn more about the case in NSBA’s Legal Clips.

Alexis Rice|May 8th, 2013|Categories: School Law, Special Education|Tags: , , , |
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