Articles in the School Law category

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: NSBA Annual Conference 2013, School Law, School Security|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: NSBA Annual Conference 2013, School Law|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: Council of School Attorneys, NSBA Annual Conference 2013, School Law|

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: Council of School Attorneys, NSBA Annual Conference 2013, School Law|

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: Bullying, Council of School Attorneys, NSBA Annual Conference 2013, School Climate, School Law|

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: NSBA Annual Conference 2013, School Law|Tags: , , |

NSBA’s Council of School Attorneys honors Gary R. Thune with Lifetime Achievement Award

The National School Boards Association’s Council of School Attorneys (COSA) honored a school board attorney who has dedicated his career to education at the 2013 Annual School Law Seminar in San Diego.

Gary R. Thune of Bismarck, N.D. was presented with COSA’s 2013 Lifetime Achievement Award for exemplary leadership in legal advocacy and distinguished service to COSA.

“We are so proud to present Thune with an award that recognizes his exemplary dedication to legal advocacy on behalf of public school boards and the students they serve,” said Elizabeth Eynon-Kokrda, COSA’s Chair.

Thune began his career as a mathematics teacher in a public school. After receiving a master’s degree in education, he served as principal, teacher, and coach of a private religious school. He later became the assistant principal of a larger public school. Thune received his juris doctorate, with distinction, from the University of North Dakota School of Law, where he was a member of the North Dakota Law Review editorial staff and Order of the Coif.

Since earning his law degree, Thune has represented almost all of the public school districts in North Dakota. He is a partner at Pearce & Durick in Bismarck, N.D., where he leads the firm’s school law practice. Thune serves as legal counsel for the North Dakota High School Activities Association and the government self-insurance pool, which covers all but one public school district in North Dakota. Gary served as legal counsel for the North Dakota School Boards Association for 32 years.

Thune has shown extraordinary dedication to the Council of School Attorneys, both at the national and state levels, for more than 30 years. He co-founded the North Dakota Council of School Attorneys, served for 11 years on COSA’s Board of Directors, and was chair of the Council from 1997-1998.

“I have been honored to work with dedicated educators and attorneys supporting the work of public schools in North Dakota,” said Thune.

Eynon-Kokrda noted, “Gary Thune is the model school board legal advocate. He knows the law, and he knows the practical realities of its every-day application in public schools. Plus, he’s a really nice guy, a thoughtful mentor to new school attorneys.”

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

NSBA and NYSSBA challenge unilateral placements in special education case

The National School Boards Association (NSBA) is urging a federal appeals court to ensure that school districts are not required to reimburse parents who unilaterally choose educational placements for their children with disabilities if those placements are not appropriate under federal special education law.

NSBA joins the New York State School Boards Association (NYSSBA) in an amicus brief asking the U.S. Court of Appeals for the Second Circuit to uphold a lower court decision in C.L. v. Scarsdale Union Free School District. The case was brought by parents who unilaterally placed their child, who has learning disabilities, in a private school then asked the school district for tuition reimbursement. School officials had determined that the child’s disability did not qualify him for special education services under the nation’s main special education law, the Individuals with Disabilities Education Act (IDEA). The law requires students with disabilities to be educated with non-disabled children in a regular classroom to the extent it is appropriate to their educational needs.

“IDEA is intended to promote collaboration between schools and families, and a school district should not be required to pay for an inappropriate private placement that was made without its input,” said NSBA Executive Director Thomas J. Gentzel. “A core tenet of IDEA is that students with disabilities should not be cut off from environments that include their non-disabled peers.”

The amicus brief written by NYSSBA responds to a U.S. Department of Justice position that the school district should pay for the restrictive placement unless it proves that there were other less restrictive private placements available to the parents but that those options were rejected without reason.

“School districts recognize the importance of working with families to determine appropriate placements for students with disabilities,” said NYSSBA Executive Director Timothy  G. Kremer. “However, a school district shouldn’t be required to pay for a restrictive  private school unilaterally chosen by a parent.  School officials and parents should be partners not adversaries in this process.”

NSBA’s Legal Clips also has written about the case.

 

Joetta Sack-Min|March 25th, 2013|Categories: Board governance, School Boards, School Law, Special Education|Tags: , , |

NSBA urges La. Supreme Court to strike down vouchers

In a closely watched Louisiana Supreme Court case that began today, the National School Boards Association (NSBA) is urging the court to rule that the state’s voucher program violates the state constitution because it diverts taxpayer funds to private schools.

NSBA has filed an amicus brief in the case, Louisiana Federation of Teachers v. State of Louisiana, which could have national implications for the school choice movement. The lawsuit brought by the Louisiana School Boards Association (LSBA) and other education groups challenges the constitutionality of several measures adopted by the Louisiana State Legislature in 2012, including a law that provides vouchers to students in low-performing schools. Under the law, a centerpiece of Gov. Bobby Jindal’s education agenda, the state board of elementary and secondary education is required to pay funds to private schools, including religious schools, as “scholarships” to cover the tuition and fees of students whose parents choose to remove their children from “failing” public schools and send them to a participating private school.

The trial court ruled in favor of the education groups and school districts, and the State of Louisiana now seeks an expedited review by the Louisiana Supreme Court.

The voucher program undermines this country’s longstanding commitment to public education and harms the state’s children by depriving poorer school systems of scarce resources, NSBA writes in the brief. Further, most of the private schools receiving public tax dollars under the program are not subject to the same accountability requirements as public schools.

“These vouchers have allowed tax dollars to be diverted from public education to private individuals and entities that are not subject to the same academic, operational, and accountability standards as public schools,” said NSBA Executive Director Thomas J. Gentzel. “These laws are part of a national campaign by special interest groups to promote a narrow political agenda over the needs and well being of the schoolchildren of Louisiana.”

The program allows parents to use vouchers for their children as early as kindergarten, even if the child never attended a public school or the school is highly ranked.

“Louisiana already has a system of school choice through community public schools and charter schools, and we need our elected officials to ensure that our state has the best public school system available to all of its families,” said LSBA Executive Director Scott Richard. “Local school boards are responsible to provide public schools to their communities that are open to all students and reflect community needs. Vouchers have taken away critical state and local funding from Louisiana’s public schools, which the vast majority of our students attend.”

Joetta Sack-Min|March 19th, 2013|Categories: Board governance, Budgeting, Educational Legislation, Policy Formation, School Law, School Vouchers|Tags: , , , |

School boards encourage Supreme Court to protect employers from unnecessary lawsuits

The National School Boards Association (NSBA) has filed an amicus brief in an employment case asking the U.S. Supreme Court not to hamper school districts’ abilities to discipline or fire employees.

In University of Texas Southwestern Medical Center v. Nassar to be heard on April 24, 2013, the Supreme Court will determine whether an employee can win a discrimination lawsuit under Title VII of the Civil Rights Act if the employer had legitimate business reasons for taking the adverse action.

The case is particularly relevant to public schools, collectively the largest employer in the country. NSBA is asking the Supreme Court to rule that the employee must prove that the employer took adverse action solely out of retaliation for the employee’s prior complaint of discrimination, not because of other legitimate reasons, a standard known as the “but for” test. Under the lower court ruling in the case, an employer must prove that they would have taken the action regardless of any desire to punish the employee for making charges of discrimination. The case centers on an employee of the University of Texas medical school who alleged that the chair of his department blocked his attempt to get a job at a hospital in retaliation for a claim of discrimination the employee had lodged against a supervisor.

“It is important that schools have the ability to discipline or terminate staff for legitimate reasons without fear of costly lawsuits that shift funds away from the classroom,” said NSBA Executive Director Thomas J. Gentzel.

“The High Court should not permit anti-discrimination laws to be used as a shield by substandard employees seeking to invalidate legitimate employer action for poor performance,” said NSBA General Counsel Francisco M. Negrón, Jr. “This standard would result in many more lawsuits, and more legal costs, for already cash-strapped school districts.”

Alexis Rice|March 14th, 2013|Categories: School Boards, School Law|Tags: , , , , |
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