Articles in the School Law category

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 If you have questions regarding your registration, please contact Lyndsay Andrews at 703-838-6738 or

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


Alexis Rice|May 22nd, 2013|Categories: School Law, Multimedia and Webinars|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: School Boards, School Law, Federal Advocacy|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: , , , |

10 best practices to avoid liability

A question that frequently arises among school members, new and seasoned is, “Can I be sued?” While there are no guarantees against a lawsuit being filed, it is important consider actions to take to limit school board exposure to potential liability.

Most states provide indemnification to school board members for actions taken within the parameters of their school board responsibilities. However, at Monday’s session at National School Boards Association’s Annual Conference, Connecticut Association of Boards of Education staff — Deputy Director and General Counsel Patrice McCarthy, Executive Director Robert Rader, and Senior Staff Attorney Kelly Moyher – offered 10 suggestions on how to limit potential for liability should a lawsuit arise.

For starters, know the boundaries of your authority. The authority of local school boards is derived from a state’s constitution, statutes, and regulations. Board bylaws and policies provide additional direction.

Next, focus on the board’s policymaking role. Boards are policymaking bodies responsible for establishing rules and procedures for running the schools. Numerous state and federal laws mandate that certain policies must be in place, but generally allow school boards to determine the specific details.

School boards should adhere to the student discipline policy. This is an important area for boards and their administrators to carefully follow established policies and regulations. Through policies, boards establish the code of conduct and sanctions for violations.

Understanding the staff discipline process also is key, while reviewing and adhering to policies on holiday celebrations is important for a board, too. Boards serve an important role in promoting community understanding on policies in both areas.

Serious consideration must be given to the laws governing board meetings. Board members only have power when they act as a body. Each state has detailed requirements for the conduct of public meetings and a periodic workshop for the board and administrative staff will help insure compliance with state law.

Avoiding nepotism, conflicts of interest and understanding the ethical considerations for board of education members is also crucial to the legal functionality of a board of education. National School Boards Association has a sample code of ethics for school board members, as do many state school board associations. Local and state laws will also govern these areas.

The board and superintendent relationship is critical for the district’s effective operation and public perception. To this end, be sure to clarify the roles of board members and the superintendent.

Conduct a thoughtful and thorough superintendent search process. Hiring a superintendent is the single board action that will most likely have the greatest long-term impact on a district. State law, statutes, and regulations provide guidance on hiring and certification requirements, as well as Freedom of Information or open meetings law provisions.

Unfortunately, after the tragic events in Newtown, Conn., late last year, board members and other school and community officials must take a close look at security, student discipline, and mental health issues. District policies should be considered for possible changes and additions to ensure student and staff are safe while in school.

School board members can reduce their exposure to liability — and perform their functions more effectively — by periodically reviewing the statutory and policy provisions that establish their authority and responsibilities. This is time well spent, and can be incorporated into the board’s annual schedule of agenda items.

Erin Walsh|April 15th, 2013|Categories: School Law, School Security, NSBA Annual Conference 2013|Tags: , |

Hot topics in school law

Issues around school safety and various legislative and regulatory efforts arising nationally could easily pose serious consequences for districts and school boards, says Steve Bounds, director of legal and policy services for the Maryland Association of Boards of Education.

In Monday’s session at the National School Boards Association’s Annual Conference, “Latest in School Law,” Bounds looked at issues that run the philosophical gamut from tracking students with GPS technology to arming staff members with everything from tasers to guns. Another major area of flux is the ability of school districts to effectively create and preserve diversity within their schools in light of the Fisher case pending before the U.S. Supreme Court.

Consideration also was given to several other legal areas of concern that are being pushed by federal authorities, including student discipline and the disproportionate impact on minorities and the very recent assertion of a newly expressed “right” for students with disabilities to participate in extracurricular activities and on sports teams with necessary accommodations.

A wide range of legal challenges to school board governance have risen in various states during the last year and Bounds raised awareness about such attempts to reduce the authority of local boards during the session.

Bounds shared some of the lighter aspects of recent school law cases, including the strange cases of pop tarts shaped like guns, and a teacher asking for accommodations for her phobia of young children. Numerous cases were explored involving religious disputes from prayer to yoga and the ever-changing body of case law dealing with T-shirt messages.

Seminar participants were encouraged to follow the landscape of education law and to heed the advice of their board attorney and state association legal staff.

Erin Walsh|April 15th, 2013|Categories: School Law, NSBA Annual Conference 2013|Tags: |

NSBA’s legal advocacy making an impact for school districts: Negrón

The National School Boards Association files more legal briefs in federal courts and the U.S. Supreme Court than all other educational organizations combined, NSBA General Counsel Francisco Negrón said Sunday at NSBA’s 2013 Annual Conference.

Other organizations seeking to influence the courts include familiar names, such as the American Federation of Teachers, and lower profile ones, such as the Council of Parent and Attorney Advocates, a disability rights group.

But there is a newly aggressive voice in the courts: the U.S. Departments of Justice and Education. Negron said those agencies are filing briefs telling courts how the Obama administration thinks laws ought to be interpreted in lawsuits involving bullying, students with disabilities and other topics.

NSBA’s argument generally boils down to citing what the law actually says and asking courts not to interpret it in ways that will lead to new causes of action against school districts or expansion of conditions under which school boards can be liable for money damages.

For instance, the U.S. Supreme Court may decide to hear a case involving Colorado’s Jefferson County School District that could expand the obligations of school districts to pay for out-of-state, residential treatment of students with certain diagnoses. The central issue is whether districts can be compelled to pay for services that NSBA contends are medical treatment rather than educational services.

“We think the Supreme Court will take up this case,” Negrón said.

Legal advocacy by NSBA is a form of support available to every school board that is a member of a state school boards association, Negrón said. NSBA and attorneys at state associations will devote resources to any case that has widespread potential ramifications for school districts.

He noted that NSBA has a lot of help in preparing its arguments. It works closely with the Council of School Attorneys (COSA), a continuing education and legal advocacy group for attorneys in private practice who represent school boards and school districts. For instance, NSBA’s brief prepared for Jefferson Cy Sch. Dist. v Elizabeth E. was written pro bono by COSA member Joseph Tanguma of Walsh, Anderson, et al in Austin, Tex.

Negrón urged board members to encourage their attorneys to become members of COSA. “It helps when we get that call if we already have a relationship with that attorney through COSA,” he said.

— Eric Randall

Erin Walsh|April 14th, 2013|Categories: School Law, Council of School Attorneys, NSBA Annual Conference 2013|

Soaring autism diagnoses will bring changes to special ed programs: attorney

Will the recent changes in the way autism is being identified and diagnosed bring any changes to school special education programs? Probably, according to attorney Andrew J. Freeman of Hodson Russ.

Over the past decade, the number of children diagnosed with autism has soared, said Freeman, who presented at a Friday session of the Council of School Attorneys’ 2013 School Law Seminar. In 2002, one in 150 children was diagnosed with some form of autism. In 2008, that number increased to one in 88.

Under the new definition of autism in the DSM-V, autism, Asperger’s Syndrome, pervasive development disorder and child disintegrative disorder are now under an umbrella category.

Under this new definition, one study estimates that 25 percent of children now diagnosed with classic autism will no longer be eligible to be classified at having the disorder; 75 percent of students with Asperger’s and pervasive development disorder will no longer be eligible.

“That’s a significant finding,” said Freeman. “But a doctor’s diagnosis alone is not the basis for special education.”

Freemen recommended that schools now look beyond the labeled diagnosis and focus on the child’s actual performance in school.

Some schools are now rethinking having adult aides with students, since that does not provide for the least restrictive environment required by special education law. In New York, he said, aides must be used for a limited time and with a specific goal in mind. “You want to build independence, not dependence,” he said.

Freeman recommended that school districts be prepared for reevaluations to ensure that classification for autistic students is still appropriate. If students no longer qualify under IDEA, consider Section 504 eligibility. If students continue to qualify under IDEA, make sure that they are getting a free and appropriate education (FAPE).

“We will eventually see the benefits [of the new definition],” he said, “but we don’t know how it will play out.”

Kathleen Vail|April 12th, 2013|Categories: School Law, Council of School Attorneys, NSBA Annual Conference 2013|

Bullying remains ‘moving target’ for schools, COSA attorneys say

Why are we still talking about bullying? It remains a hot topic among school districts and attorneys, and was the topic of a Friday Council of School Attorneys’ session at the 2013 School Law Seminar in San Diego.

Presenters Seamus Boyce of Church, Church, Hittle & Atrium, Jim D. Long, senior attorney with the U.S Department of Justice Office of Civil Rights (OCR) and Anne Littlefield, of Shipman & Goodwin outlined the issues that continue to challenge school districts about preventing bullying while not violating students First Amendment rights.

“It’s a moving target,” said Boyce. “We must try to avoid some of the negative outcomes for our clients.”

Littlefield outlined some of the current cases of bullying facing school districts and gave some advice for lawyers to take back to their districts:

“A few things to avoid saying on the record: ‘Boys will be boys,’ and ‘Teens will be teens.’ Don’t call it a prank. When you do that, you are communicating to students, parents, community and teachers that you will not take it seriously.”

About OCR enforcement, Long said, “There are rules about this stuff, and the rules are your friends. Follow the rules. That’s what I tell school districts.” Schools must have statements of non-harassment and make sure there are procedures that provide for prompt resolution, he said.

According to Boyce, 49 states have laws regarding peer bullying. These laws often have specific requirements for districts and school boards, including forming policies, procedures, and preventions plans.

Issues of cyberbullying, social network bullying, bullying off-campus and bullying counterclaims based on First Amendment rights are trending right now, said Boyce.

Kathleen Vail|April 12th, 2013|Categories: School Law, Bullying, School Climate, Council of School Attorneys, NSBA Annual Conference 2013|

NSBA’s Council of School Attorneys elects new leadership

The National School Boards Association’s (NSBA) Council of School Attorneys (COSA), the national network of attorneys representing K-12 public school districts whose mission is to support school attorneys and provide leadership in legal advocacy for public schools, elected new leaders and directors for 2012-2013 during its annual meeting in San Diego. The 22-member Board of Directors oversees COSA’s continuing legal education programming for its 3,000 members across the United States and Canada.

Allison Brown Schafer became Chair; she is Director of Policy and Legal Counsel for the North Carolina School Boards Association and she received her J.D. from Wake Forest University.

Gregory J. Guercio became Chair-Elect; he is founding partner of the Farmingdale, N.Y., law firm of Guercio & Guercio, LLP, and he received his law degree from St. John’s University School of Law.

Justin D. Petrarca became Vice-Chair; he is a partner with the Chicago firm of Scariano, Himes and Petrarca, and he received his J.D. from the John Marshall Law School.

Andrew M. Sanchez became Secretary; he is a partner in the Albuquerque, N.M. office of Cuddy & McCarthy, and received his law degree from The George Washington University Law School.

“This is an exciting time for COSA and NSBA,” said Francisco M. Negrón, Jr., NSBA’s General Counsel. “COSA’s new leadership represents the top education law attorneys across the country, ensuring that NSBA will continue to be the nation’s foremost legal advocate for public schools.”

COSA also elected three new directors to two-year terms: C. Wesley Bridges II is the general counsel for the School Board of Polk County, Fla.; Nancy Hungerford is the founder of The Hungerford Law Firm in Oregon City, Ore.; and James A. Keith is a partner with Adams and Reece in Jackson, Miss.

In addition, COSA elected four directors to a second two-year term: Diane Marshall-Freeman is a partner in the Sacramento, Calif., office of Fagen Friedman & Fulfrost, LLP; Joanne Nelson Shepherd is the district counsel for Jackson (Mississippi) Public School District; Leslie R. Stellman is a partner in the Towson, Md. office of Pessin Katz Law, P.A.; and Christopher P. Thomas is general counsel and director of legal and policy services to the Arizona School Boards Association.

“The council’s new leaders are extremely dedicated professionals who will admirably serve COSA members in their advocacy on behalf of public schools,” said Patrice McCarthy, past COSA Chair and head of this year’s nominating committee. “Together, they bring deep and rich legal experience and tremendous energy to the organization.”

Alexis Rice|April 12th, 2013|Categories: School Law, NSBA Annual Conference 2013|Tags: , , |
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