TSBA 2013 Summer Law Institute Gatlinburg


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The Annual Summer Law Institute sponsored by TSBA, in conjunction with the Tennessee Council of School Board Attorneys, is a two-day seminar held each summer for school board attorneys, board members and superintendents. We will be hosting two institutes, one in East Tennessee and the other in West Tennessee.

The two-day session includes a summary of case law affecting Tennessee public schools, an update on recent legislation, Attorney General opinions, and various legal issues related to education. This is a fee-based class.

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  • Story about my experience as Assistant Principal at WBHS without an SRO and then transitioning to working with an SRO
  • TSBA 2013 Summer Law Institute Gatlinburg

    1. 1. Click to edit Master title style Summer Law Institute Gatlinburg, Tennessee
    2. 2. Click to edit Master title style Renea Jones-Rogers, TSBA President and Unicoi County Board Chairman
    3. 3. Click to edit Master title style MEETING OVERVIEW Randall Bennett, TSBA Deputy Executive Director and General Counsel
    4. 4. Click to edit Master title style
    5. 5. Click to edit Master title style
    6. 6. Click to edit Master title style WHAT IS A QR CODE? (Quick Response Code) Small square barcodes that contain data that can be read/accessed by using a QR Code reader/scanner. Must have a smartphone or other electronic device connected to the internet/3G network.
    7. 7. Click to edit Master title style HOW DO I USE A QR CODE? You will need the following to scan a barcode: 1. A mobile device with a camera - ex: smartphone, iPad, Android 2. A QR Code Reader app. This app can be downloaded from your platform app store. - Google Play (Android users) search “QR Droid” - App Store (Apple users) search “QRReader” 3. A QR Code to scan.
    8. 8. Click to edit Master title style WHAT IS A QR CODE? Scan this code (located in packet) to access the digital files for the Summer Law Institute.
    9. 9. Click to edit Master title style SPECIAL GUESTS
    10. 10. Click to edit Master title style PREMIER BUSINESS AFFILIATE GCA EDUCATION SERVICES, INC. Craig Colquitt & Kip Puryear
    11. 11. Click to edit Master title style PREMIER BUSINESS AFFILIATE SCHOOLCAST Frank Sheddan
    12. 12. Click to edit Master title style PREMIER BUSINESS AFFILIATE PROFESSIONAL EDUCATIONAL SERVICES GROUP (PESG) Kim Woodson & Kristi Fliestra
    13. 13. Click to edit Master title style LEE HARRELL TSBA Director of Government Relations, Labor Relations and Policy
    14. 14. 2013 Legislative Report July 12, 2013 TSBA Summer Law Institute Gatlinburg, Tennessee
    15. 15. Unexpected Ending… Vouchers Statewide Authorizer of Charter Schools
    16. 16. Guns in Schools / Teachers w/ Guns HB 6 by Watson / SB 570 by Niceley • PERMISSIVE • Person must be employee of the school or an employee assigned by local law enforcement through an MOU Will teachers be allowed to carry? Maybe.
    17. 17. Requirements: • Possess a carry permit • Have written authorization of director and principal • Have completed full law enforcement training with an additional 40 hours of school policing (approved by LEA) • Costs of training, firearm and ammunition are the responsibility of the person seeking to carry Guns in Schools / Teachers w/ Guns Public Chapter 358
    18. 18. Requirements: • Within 10 days of a superintendent authorizing a person to carry, he/she shall notify the chief of the local law enforcement agency. • The authorizing letter, the notification to law enforcement, and all related materials are confidential and not subject to open records requests. Guns in Schools / Teachers w/ Guns Public Chapter 358
    19. 19. • 20 years of debate • If a school is a member of an organization that regulates athletic programs, then the school must comply with the regulations regarding homeschoolers. • This law only provides the opportunity to try out – it does not guarantee a spot on a team. Homeschoolers in Athletics SB 249 by Campfield – HB 222 by Kane
    20. 20. • Permissive – “at the discretion of the LEA” • Teachers with grades of “above expectations” or “significantly above expectations” with individual TVAAS data may request that their evaluations be based 100% on this data. • If implemented, this option must be available for all teachers. Teacher Evaluations SB 156 by Norris – HB 150 by Forgety
    21. 21. • Currently, evaluations are 50% observation and 50% student achievement for all teachers. • For teachers without individual data, the breakdown of the evaluations changes to 60% observation and 40% student achievement (25% TVAAS and 15% other data). • This bill also deletes this provision of the law: Records from any student who is eligible for special education services under federal law will not be used as part of the value added assessment. Teacher Evaluations Public Chapter 105
    22. 22. • Currently, whatever a local funding body appropriates for a school system this year, it will be obligated to provide in subsequent years - excluding bonds. (M of E) • This law creates an exception to this ongoing obligation to allow for one-time dollars for non-recurring expenses. One-Time Appropriations SB 612 by Yager – HB 1156 by D. White
    23. 23. • An LEA and local funding body must acknowledge in writing that the funds are for one-time expenditures. • The TDOE will ensure the non-recurring nature of the funds during its review of each LEA’s budget proposal. • These one-time dollars are NOT subject to the requirements of apportionment to other districts within a county. One-Time Appropriations Public Chapter 305
    24. 24. • Since 2007, contractors have had to request background checks for all of his/her employees who would be around students or on school grounds during the school day. • However, as a private citizen, these background checks would simply produce “green light” or “red light” letters indicating if an employee was allowed. • For some reason, the only disqualifiers were sexual or violent sexual offenses. Background Checks for Contractors SB 16 by Gresham – HB 237 by H. Brooks
    25. 25. • This new law adds numerous disqualifying offenses to mirror the offenses whereby a teacher automatically loses his/her license. • 39-17-417 - manufacturing, delivering, or selling drugs or possessing drugs with the intent to do so. • 40-35-501(i)(2) –murder, kidnapping, robbery, arson, and child abuse. Background Checks for Contractors Public Chapter 177
    26. 26. • As introduced, it could have been very problematic. • It prohibited people from running for the school board if they had a relative who was an employee of the LEA. • It would have required the board to vote prior to the promotion or hiring of anyone related to the board or the director of schools. Nepotism SB 663 by Gresham – HB 449 by Dunn
    27. 27. • As enacted, it mirrors most LEAs’ policies on nepotism. • Prior to the hiring of a person who is related to the director, a board member, or a county/city official, the director shall notify the board with assurance of the person’s qualifications. • Prior to a board member voting on an item which may impact an employee who is a relative, the board member shall declare such relationship and state that his/her vote is in the best interest of the school system. Nepotism Public Chapter 301
    28. 28. • Governor’s proposal • Caps initial enrollment of all virtual schools to 1,500 students • If a virtual school receives a grade of “at expectations” with student performance, the cap is removed. • However, existing virtual schools are capped at their enrollment numbers as of the date of enactment (May 14). “Caps” on Virtual Schools’ Enrollments SB 157 by Norris – HB 151 by McCormick
    29. 29. • If a virtual school becomes a priority school or if it has grades of “significantly below expectations” with student performance for three consecutive years, the commissioner may reinstate the caps or direct the LEA to close the school. “Caps” on Virtual Schools’ Enrollments Public Chapter 404
    30. 30. • This law will provide a great deal of flexibility to high performing school districts. • High performing districts may spend their reserves without the approval of the local legislative body, develop a new teacher evaluation instrument, add days to the instructional calendar, and request waivers from statutes that inhibit or hinder the district’s ability to meet its goals or comply with its mission statement. - status is valid for three years. High Performing School Districts SB 592 by Johnson – HB 210 by Sargent
    31. 31. • To be a high performing district under this law, an LEA… 1.) Must satisfy a majority of the following criteria: • graduation rate ≥ 90% , • Average ACT score ≥ 21, • high three year average on TCAP, • high three year average on TVAAS, or • meet or exceed achievement and gap closure objectives, AND 2.) Declare itself to be a high performing school district through an action of the board. High Performing School Districts Public Chapter 393
    32. 32. • This law requires LEAs to have a policy whereby parents may request transfers for students. • Decisions are still made by districts. • Parents are responsible for transportation. • Public Chapter 411. Open Enrollment Policies SB 1175 by Kelsey– HB 941 by Dunn
    33. 33. 2014? Questions?
    34. 34. Click to edit Master title style CHUCK CAGLE Attorney, Lewis, King, Krieg & Waldrop, P.C.
    35. 35. Click to edit Master title style BREAK
    36. 36. Click to edit Master title style SCOTT BENNETT Attorney, Leitner, Williams, Dooley & Napolitan
    37. 37. D. Scott Bennett Leitner, Williams, Dooley & Napolitan, PLLC scott.bennett@leitnerfirm.com You’ve Been Sued – Now What? Taking a Businesslike Approach to Civil Litigation
    38. 38. Initial Steps  Don’t panic!  Read the complaint – How have you been sued?  Official capacity? Meaning that you were carrying out the policies of the Board  Individual capacity? Meaning that you are yourself liable  Contact the powers-that-be – Superintendent – Board chair – Board attorney – Insurance agent, if applicable  The board’s  Your own
    39. 39. Don’t Be Stupid  Don’t call the complainant or the attorney  Don’t launch your own investigation  Don’t talk about the suit – Not with the staff – Not with your friends – Not with the press  Get behind the district and let it coordinate everything
    40. 40. Early Strategic Considerations  Save all emails – Really – save even the ones that seem terribly damaging – Alert IT to start looking for related emails and to place a “litigation hold” on them – Demand compliance  What about a press release? – Note that some local rules of court prohibit commenting about pending litigation – Less is more  Convey an attitude of focused attention on the issue; do not address the underlying facts  Expect to be cross-examined on whatever you say
    41. 41. Retaining an Attorney  Do you need litigation counsel? – Lean on your Board attorney for advice – Ask him or her to coordinate the defense and/or retention of counsel  If you have insurance coverage, – Be sure to ask questions regarding the qualifications of any attorney it might retain – And insist on early involvement  Should you retain counsel for individually named defendants? – It depends entirely on how and why they have been sued – Oftentimes the carrier will make this decision
    42. 42. Working the Case  The level of your involvement will depend entirely upon your role in the LEA and the nature of the case – Don’t be disappointed if you are not contacted daily about the case! – But don’t get frustrated if you are!  Put together a timeline and summary of relevant facts, conversations, etc. for the attorney’s use – And label as “work product – prepared for use of the attorney” – Update it as thoughts occur to you – And don’t share it with anyone else!  Pull together documents – Amazing how many documents exist outside their logical place!  Do not divulge any confidential information regarding the defense outside of the immediate nerve center of the LEA – It is possible for you to waive privileged and confidential information that belongs to the Board!
    43. 43. Potential Sources of Liability  Constitutional violations  State law tort law  Employment law
    44. 44. Constitutional Law: General Rules  The board will be liable where a policy or an established practice or procedure violates an individual’s constitutional right under 42 USC 1983 – For example, Bible distribution policies, mandatory drug tests, etc.  Individual board members and administrators usually will have qualified immunity from suit arising out of policy, practice or procedure so long as – He or she reasonably believed that the board’s policy did not violate a clearly established constitutional right – This rule protects good faith and common sense
    45. 45. Constitutional Law: Personal Liability  Regardless of policy, practice or procedure, board members and administrators become personally liable if… – They are aware of a violation of a clearly established right – And are deliberately indifferent to it  As an aside, participation in the violation only increases the odds of personal liability  Ouch! Recovery can include actual damages, punitive damages if defendants were reckless, and attorneys’ fees
    46. 46. State Tort Law: General Rules  Governmental Tort Liability Act immunizes board members against personal liability (TCA 29-20- 201(b)(2)) – Immunity is lifted where the board member acts willfully, wantonly or with gross negligence  Gross negligence: Conscious disregard of a legal duty and its consequences to others  Even when immunity is lifted, damages are capped at $300 K per plaintiff up to $700 K (TCA 29-20- 403(b)(4)) – But the cap is lifted if the board member acts willfully, maliciously, criminally, or for personal gain  If such is the case, then punitive damages are a real possibility
    47. 47. Employment: General Rules  Most employment duties fall to the superintendent (TCA 49-2-301(b)(1)(EE)) – So long as they don’t get involved in day-to-day employment issues, there should never be a reason for board members to be sued  The board retains some employment duties – For example, dismissal of teachers and oversight of the superintendent – TCA 49-5-512(b) provides that “the director of schools or other school officials shall not be held liable, personally or officially, when performing their duties in prosecuting charges against a teacher or teachers under this part.” – Good faith performance of duties should be a defense
    48. 48. Employment Discrimination Claims  Individual board members and administrators are not “employers” under Title VII or the THRA  But, individuals can be liable under state law as “aiders and abettors” of discrimination if they affirmatively assist in the furtherance of discrimination (TCA 4-21-301(2))  And anyone who is aware of an employee’s medical condition can become liable under the FMLA
    49. 49. Words of Wisdom for Board Members  Do nothing as a individual – Always act with your colleagues at a Board meeting – Your most powerful tool is the question “why?”  When in doubt of what to do, call your Board attorney and ask for written advice  If you cannot say something nice about someone, keep your mouth shut
    50. 50. Questions?
    51. 51. Click to edit Master title style LUNCH Mountain View Room (upstairs)
    52. 52. Click to edit Master title style SAMUEL JACKSON Attorney, Lewis, King, Krieg & Waldrop
    53. 53. Samuel L. Jackson Lewis, King, Krieg & Waldrop, P.C. Defining Equal Opportunity in School-Sponsored Extracurricular Activities and Athletics.
    54. 54. • A high school student born with only one hand is a qualified student with a disability under Section 504. The student would like to participate on the school’s swim team. The student has the required swimming ability and meets the qualifications for joining the team. She asks the school district to waive the “two-hand touch” finish it requires of all swimmers in swim meets, and to allow her to finish with a “one-hand touch.” – Is the school required to waive the “two-hand touch” finish to allow the student to participate? Scenario
    55. 55. Office of Civil Rights Says . . . • The school district must conduct an “individualized assessment” to determine if: 1) The requested modification is necessary for the student’s participation; and 2) permitting the modification would fundamentally alter the nature of the activity or would give the student an unfair advantage.
    56. 56. Office of Civil Rights Says . . . – A one-hand touch does not alter an essential aspect of the activity. – If a school district was correct in finding that the student would gain an unfair advantage, then the modification would not be required. – The school district would, however, be required to determine if other modifications were available that would allow the student to participate, such as allowing the student to finish when she touched the wall with one hand and had the other arm simultaneously stretched forward.
    57. 57. The Dear Colleague Letter: – On January 25, 2013 The United States Department of Civil Rights (“OCR”) issued a Dear Colleague Letter (“DCL”) advising school districts of their “obligations” under Section 504 regarding the participation of students with disabilities in “extracurricular athletics.” – The DCL focuses on three primary areas: 1) Prohibiting exclusion based on assumptions about disability generally, or specific disabilities in particular. 2) Ensuring that students with disabilities are afforded an equal opportunity to participate in extracurricular athletics. 3) Creating “separate or different” athletic opportunities where the “interests and abilities of some students with disabilities cannot be as fully and effectively met by the school district’s existing extracurricular program.”
    58. 58. What is Section 504 and Who is OCR? • Section 504 is a federal civil rights law designed to eliminate disability discrimination in programs and activities that receive federal funds. Since all public school districts receive federal funds, they are required to comply with this law. • The Statute: “No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). • Section 504’s Implementing Regulations: – Requires schools to provide a “free appropriate education” (“FAPE”): • Recipients “shall provide a free appropriate public education to each qualified handicapped person who is in the recipient's jurisdiction, regardless of the nature or severity of the person's handicap.” – Affords disabled students an equal opportunity for participation in extracurricular activities : • Recipients “shall provide non-academic and extracurricular services and activities in such manner as is necessary to afford handicapped students an equal opportunity for participation in such services and activities.” 34 C.F.R. 104.37 (a)(1). • OCR: – The U.S. Department of Education’s enforcement agency for Section 504. – Promulgates the implementing regulations for Section 504.
    59. 59. Background: U.S. Government Accountability Office (GAO) Report • June, 2010 - GAO releases a report entitled Students with Disabilities: More Information and Guidance Could Improve Opportunities in Physical Education and Athletics, No. GAO-10-519. • Report was issued in response to concern raised by national associations about whether students with disabilities are receiving similar PE and extracurricular athletics opportunities as those without disabilities. • Focus of GAO’s Report: – What is known about the physical education and extracurricular athletic opportunities that schools provide to students with disabilities, and how do schools provide these; – How the Department of Education assists states and schools to provide these opportunities to students with disabilities.
    60. 60. • National Data: – 41% of students with disabilities in grades 1-7 participated in school or community-based extracurricular athletics in 2000. – 33% of students with disabilities in grades 7-12 participated in school or community-based extracurricular athletics in 2001. – Sport participation among these students was consistently higher for boys than for girls, regardless of age. “We found no national data that was reliable for our purpose of comparing the participation of students with disabilities to students without disabilities in extracurricular athletics.” Background: U.S. Government Accountability Office (GAO) Report
    61. 61. • GAO conducted site visits at four schools in two different districts in five different states (California, Florida, Maryland, Minnesota, and New Jersey). • Findings: – Participation rates for IDEA students were lower than for non-IDEA students, ranging from 10 to 56 percentage points lower. – Student participation on sports teams varies by disability. – Students with hearing impairments, speech impairments, learning disabilities, or other health impairments reported participating in sports teams at a higher rate compared to orthopedic impairments, mental retardation, visual impairments, autism, or multiple disabilities. Background: U.S. Government Accountability Office (GAO) Report
    62. 62. • Conclusions: – There is a lack of information regarding how to provide extracurricular opportunities to disabled students. – Budget constraints may inhibit schools from providing more athletic opportunities to students with disabilities. – Neither the DOE nor OCR have widely disseminated any detailed guidance or information on school’s responsibilities to provide opportunities in PE or extracurricular athletics for students with disabilities under Section 504. • Why? Of the 12,543 complaints regarding elementary and secondary school students made to OCR between 2005 and 2009, only 108 complaints pertained to discrimination regarding student participation in PE or extracurricular athletics. (This equates to less than 1 percent of all OCR complaints). – Recommended that DOE clarify and communicate school’s responsibilities under Section 504 regarding the provision of extracurricular athletics. Background: U.S. Government Accountability Office (GAO) Report
    63. 63. 1. Do Not Act on Generalizations or Stereotypes • A school district may not operate its extracurricular activities on the basis of generalizations, assumptions, prejudices, or stereotypes about disabilities in general, or specific disabilities. • A school district may not use generalizations to determine what students with a type of disability are able to do; one student with a certain type of disability may be able to participate in an activity but another student with the same disability may not.
    64. 64. • Example: Student with learning disability under Section 504 participated in school’s lacrosse club during middle school. As student enters ninth grade, she tries out and is selected as a member of the high school’s lacrosse team. The coach is aware of the student’s learning disability and believes that all students with this disability would be unable to play successfully under the time constraints and pressures of an actual game. Based on this assumption, the coach does not play the student during games. • OCR would find that the coach’s decision violates Section 504. While the student does not have a right to participate in games, the decision on whether to play the student must be based on the same criteria the coach uses for all other players (such as performance during practice). 1. Do Not Act on Generalizations or Stereotypes
    65. 65. 2. Ensure Equal Opportunity for Participation • A school district must offer extracurricular activities in a manner that allows qualified students with disabilities an “equal opportunity to participate.” • To do so, a school district must make reasonable modifications and provide necessary aids and services for ensuring an equal opportunity to participate, unless it can show that doing so would fundamentally alter the program. • A modification might constitute a fundamental alteration if it alters an essential aspect of the sport or activity in a way that makes it unacceptable even if it affected all participants equally, i.e. adding an extra base in baseball. • Even so, the school district would be required to determine if other modifications are available that would allow the student to participate.
    66. 66. • Example: An elementary school student with diabetes is not eligible for services under the IDEA, but is a qualified student with a disability under Section 504. During the school day, the student receives services under Section 504 that include assistance with glucose testing and insulin administration from trained school personnel. During the school year, the student wants to join the school- sponsored gymnastics club. The club has its meetings after school. The only eligibility requirement is that all members must attend that school. When the parent asks the school to provide the glucose testing and insulin administration that the student needs to participate in the club, school personnel agree that it is necessary but inform the parent that they are not required to provide the student with such assistance because gymnastics club is an extracurricular activity. Is the school required to provide these services after-school to allow the student to participate in gymnastics club??? 2. Ensure Equal Opportunity for Participation
    67. 67. Example: • According to OCR, the school is required to provide these services and denying them would be a violation of Section 504. • The school district must provide this assistance after school under Section 504 to enable the student to participate in the gymnastics club, unless doing so would be a fundamental alteration of the district’s education program. • The school district has a legal obligation under IDEA to provide aids or services in its education program to enable any IDEA- eligible student to participate in extracurricular activities, so, providing these aids and services after school to student with a disability not eligible under the IDEA would rarely, if ever, be a fundamental alteration of its education program. 2. Ensure Equal Opportunity for Participation
    68. 68. • Providing unnecessarily separate or different services is discriminatory. Thus, OCR encourages school districts to coordinate with their community and athletic associations to develop opportunities for students with disabilities to participate in all extracurricular athletic activities. • If students with disabilities cannot participate in the school district’s existing extracurricular activities, the school district should create additional opportunities for them. These students should still have an equal opportunity to receive the benefit of extracurricular activities. • In those circumstances, a school district should offer students with disabilities opportunities for athletic activities that are separate or different from those offered to students without disabilities. These should be supported equally with the district's other athletic activities. 3. Offering Separate or Different Athletic Opportunities
    69. 69. • School districts must be flexible when developing programs that meet the interests of students with disabilities. More school districts are creating disability-specific teams for sports such as wheelchair basketball. • When the number of students with disabilities is insufficient to field a team at an individual school, school districts can: (1) Develop district-wide or regional teams instead of school-based teams; (2) Mix male and female students with disabilities on teams together; or (3) Offer teams where students with disabilities participate with students without disabilities. 3. Offering Separate or Different Athletic Opportunities
    70. 70. National School Boards Association’s General Counsel Responds to DCL: May 21, 2013 • NSBA’s main concern is that without clarification, OCR’s broad reading of the law and blending of OCR enforcement standards for Section 504 matters, as stated in the DCL, will: – create uncertainty in the courts about applicable standards; – create confusion among school attorneys, educators, school personnel, and parents about methods of implementation; – invite misguided litigation that will detract from school resources; and – create adversarial environments that distract schools from their educational purpose.
    71. 71. NSBA Response: Expansion of OCR’s View of Its Authority Under 504 • Individual Assessments: – Current OCR regulations focus on individual assessments of a student’s educational abilities and possible need for modifications based on educational data, testing, academic performance, and input from the student’s educators. – Per the DCL, it seems OCR is suggesting, even requiring, that an individual assessment of a disabled student’s educational abilities should be accompanied by a separate assessment of the student’s ability to participate in athletics. • Need for clarification: – OCR’s suggestion seems to contemplate a wholly separate 504 Team meeting and suggests that a different make-up of the team may be required for an “athletics” assessment. The DCL, however, provides no guidance as to that make-up. – There is also a need for clarification as to the standard of review that will be applied by OCR when a district decision is challenged. That is, will OCR review the process used to ensure consistency with law, as opposed to the decision ultimately reached by the team.
    72. 72. • Meaning of “Opportunity to Benefit” – The DCL states that Section 504 regulations require school districts to provide qualified students with disabilities an opportunity to benefit from the school district’s program equal to that of students without disabilities. – Neither OCR nor its Section 504 regulations elaborate on what it means for a school district to provide an opportunity to benefit from its elective extracurricular athletics program. – OCR should clarify whether an opportunity to benefit means that a district must affirmatively provide a student with a disability the opportunity to participate in any/all aspects of the athletics program. NSBA Response: Expansion of OCR’s View of Its Authority Under 504
    73. 73. • Use of “Fully and Effectively” Standard: – OCR states in the DCL that in assessing Section 504 compliance, it considers whether a district’s extracurricular athletics program “fully and effectively” meets the “interests and abilities” of its students with disabilities. – This language mirrors standards used in assessing Title IX compliance in athletics programs and creates a mixing of standards which causes confusion in the school community. – This language also raises concern because the Section 504 regulations do not contain any provision or requirement that a district’s extracurricular program meet this standard. – Reading such a legally-unsupported standard into Section 504 regulations seems to create a preference in favor of students with disabilities related to athletics that is neither currently available nor required for students without disabilities. NSBA Response: Expansion of OCR’s View of Its Authority Under 504
    74. 74. • DCL states that “OCR would view a school district’s failure to address participation or requests for participation in extracurricular activities for a qualified student with a disability with an IEP in a manner consistent with IDEA requirements as a failure to ensure Section 504 FAPE and an equal opportunity for participation.” • Practical effect of this sweeping language has the consequence of rendering most IEPs in violation of Section 504, since few IEPS probably contain a provision about a student’s request for an equal opportunity to participate in extracurricular activities. • Saddling school districts with a presumption of noncompliance is unfair, and minimizes the good faith efforts of the student’s IEP team. NSBA Response: Confusing Blend of OCR Enforcement Standards
    75. 75. • Applicability of FAPE Standards to Extracurricular Activities: – Since Section 504 regulations mean literally a “free appropriate public education,” participation in a school’s extracurricular athletics program could be understood as being purely elective and not related to the student’s required educational component. – Section 504 regulations support this view, discussing student evaluation and placement in terms of educational, rather than athletic, needs. – This confusion creates a new “litigious path” for plaintiffs seeking to capitalize on a school district’s uncertainty as to how to identify and meet its obligations to accommodate a disabled student’s request for an opportunity to participate in extracurricular athletics. NSBA Response: Expansion of OCR’s View of Its Authority Under 504
    76. 76. • The Department of Education’s spokesperson, Daren Briscoe, stated that the Department’s position is that the DCL is a guidance document for school districts. It does not create a right for wheelchair basketball but instead “urges” school districts to find ways to provide students with disabilities the opportunity to participate in extracurricular activities. • School districts need a statement from OCR regarding the outcome if a school district failed to meet the “urgings” set forth in the DCL---will it be found in violation of Section 504? • School districts also need clarification that the DCL is not a mandate requiring school districts to adopt expanded athletic opportunities for students with disabilities, including separate and different teams that are to be supported equally with other athletic activities. NSBA Response: Need to Clarify Ultimate Conclusions Reached in DCL
    77. 77. Other Responses: • Department of Education – “School districts may continue to select the best players as they define it as long as they aren’t excluding kids because of their disability.” – “Sports can provide invaluable lessons in discipline, selflessness, passion and courage, and this guidance will help schools ensure that students with disabilities have an equal opportunity to benefit from the life lessons they can learn on the playing field or on the court.” • National Education Association – “All students have the human and civil right to a quality public education with equal access that develops their potential, independence and character.” • Active Policy Solutions – “This is a landmark moment for students with disabilities. This will do for students with disabilities what Title IX did for women and girls. This level of clarity has been missing for years.”
    78. 78. Other Responses: • Thomas B. Fordham Institute, Michael J. Petrilli, “The Obama Administration invents a right to wheelchair basketball” – “The step that federal officials are taking today will have wide-ranging consequences for decades to come. It potentially puts school districts on the hook for billions of dollars…. At the very least, the changes should be subject to the regular regulatory process, which allows for public input, demands an accounting of potential costs, and gives all sides [the opportunity] to voice their concerns. A better solution is to let legislators take up this question….” • NSBA, Inquiry & Analysis, Richard E. Kroopnick, “Section 504, OCR and Extracurricular Athletic Activities: Confusion Over the Rules of the Game” – The DCL is intended to advise school districts of their obligations under Section 504. OCR is relying on a 504 FAPE standard that lacks judicial support. United States Supreme Court precedent establishes “reasonable accommodation” and “fundamental alteration” as the controlling standards. – The “separate or different athletic opportunities” discussion in the DCL needs clarification about whether it was included as a suggestion or a legal obligation.
    79. 79. South Plainfield Board of Education, 113 LRP 16932 (New Jersey State Educational Agency, Apr. 3, 2013) • Held: A New Jersey district did not violate the IDEA by declining to provide the transportation services a 12-year-old boy needed to participate in extracurricular activities at his out- of-district special education school. – Because the student made adequate progress toward his social skills goals without participating in afterschool activities, those services were not necessary to provide the student FAPE. – IDEA only requires districts to provide the specialized instruction and related services that students with disabilities need to receive FAPE. – The student did not need to participate in extracurricular activities to receive FAPE, so the IDEA did not require the district to provide the transportation services the student needed to participate in those activities.
    80. 80. S.S. by Schor v. Whitesboro Cent. Sch. Dist., 112 LRP 5880 (N.D.N.Y. Jan. 31, 2012). Held: • New York district concluded that permitting a swim team member to leave the pool when she had panic attacks was not a reasonable accommodation, it dismissed her parents' Section 504 and ADA claims. Any such accommodation would have fundamentally altered the nature of the district's swim program. – “There is no reasonable accommodation that a swim team coach could make for an athlete who is suddenly and sporadically afraid of the water and thus has to exit the pool during practices and competitions. Remember: • An accommodation for a student to participate in an extracurricular activity is not reasonable if it would fundamentally alter the nature of the activity. 28 CFR 35.130 (b)(7). If the accommodation would subvert an essential element of the program, then, barring an IEP or 504 plan that requires otherwise, a district need not provide it. Here, the swim team member wanted to be able to leave the pool unpredictably during practices and meets to assuage her fear of drowning. Because staying in the pool was an essential aspect of being a swim team member, the accommodation was unreasonable.
    81. 81. 1) Don't wait, be proactive. Don’t wait for parents to request supports for activities, ask what extracurricular activities the student participates in or is interested in before the IEP meeting. 2) Discuss possible supports. At the meeting, discuss what services and supports the student needs to have an equal opportunity to participate in the activity. 3) Don't overlook the need to identify any accommodations required for the student to try out for the team or club. 4) Remember that accommodation for team tryouts should not be designed to give the student a competitive advantage; they are meant to level the playing field. For Now… What Can School Districts Do to Ensure That They Are Complying?
    82. 82. For Now… What Can School Districts Do to Ensure That They Are Complying? 5) Involve the coach or activity sponsor in the IEP meeting. • The coach is often the most knowledgeable about if and how a proposed accommodation fundamentally alters the nature of the activity. If it does, the school is not required to allow the student to participate with that accommodation. • The coach can inform the team of any rules that govern whether the student is eligible to participate. 6) Choose words wisely when writing accommodations and document decisions not to grant accommodations. • Accommodations should not grant automatic eligibility for a student to participate in the activity or be worded so that the IEP could be interpreted in such a way that participation in the activity is required for the student to receive FAPE. • One example for wording an accommodation : "If eligible and selected to participate on the basketball team, the student needs the following accommodations: .”
    83. 83. Any Questions?? Samuel L. Jackson Lewis, King, Krieg & Waldrop, P.C. sjackson@lewisking.com (615)259-1366
    84. 84. Click to edit Master title style BREAK
    85. 85. Click to edit Master title style CHRIS MCCARTY Attorney, Lewis, King, Krieg & Waldrop, P.C.
    86. 86. Click to edit Master title style BREAK
    87. 87. Click to edit Master title style RANDALL BENNETT TSBA Deputy Executive Director and General Counsel
    88. 88. Phillips v. Robertson County School Law Quarterly Vol. 12, Issue 3 pp. 1-2
    89. 89. Phillips v. Robertson County 0 Misty Phillips’ son, Jacob Gentry, was having difficulty adjusting to the 7th grade 0 Clinical psychologist diagnosed him with Anxiety Disorder and Adjustment Reaction with Asperger’s 0 Phillips requested an IEP and a meeting was held 0 Team referred Jacob for further testing which indicated that he did not meet special education guidelines for any disability but qualified as gifted
    90. 90. Phillips v. Robertson County 0 In May of 2006 there was a physical altercation with another child, W.K., (while the teacher was out of the room) which resulted in serious injuries to Jacob’s left eye that required 4 surgeries and left him legally blind in that eye 0 Ms. Phillips filed a negligence suit against Robertson County and several named individual employees 0 Individual defendants were dismissed and case proceeded against the District
    91. 91. Phillips v. Robertson County 0 Trial court found that Jacob was a victim of bullying and that the school was on notice and noted that the school was aware he could be a “bully magnet” 0 Trial court additionally found that Jacob’s teacher 0 Did not review his IEP 0 Was not made aware of Jacob’s special needs and circumstances by school officials 0 Was never shown the initial evaluation 0 Failed to follow school policy concerning supervision of her classroom
    92. 92. Phillips v. Robertson County 0 Trial court concluded that the incident was foreseeable and occurred as the result of the negligence of the Defendant and that was the proximate cause of the injury 0 The court entered judgment in favor of the plaintiff in the amount of $300,000 (limit under Tennessee’s Governmental Tort Liability Act) 0 School district appealed
    93. 93. Phillips v. Robertson County 0 Court of Appeals affirmed the decision that the district was negligent in failing to properly advise the teacher about Jacob’s condition 0 School district argued that the incidents reported by Jacob and his mother reflect the kind of teasing and “goofing” engaged in by typical middle school kids 0 The Court pointed out that this case was about failure of supervision and of dissemination of information and that given what the district knew about Jacob it should have foreseen that he could be injured when left unsupervised
    94. 94. Kyle v. City of Jackson School Law Quarterly Vol. 12, Issue 3 pp. 3-4
    95. 95. Kyle v. City of Jackson 0 Not a school case but deals with negligence and comparative fault 0 Ms. Kyle sued the City of Jackson for a fall and injury she sustained at a dinner theater event held at the Ned R. McWherter Cultural Arts Center 0 Key point to remember is that if the Defendant can prove that the Plaintiff is 50% or more at fault for her own injuries then she cannot recover damages from the Defendant
    96. 96. Thompson v. Memphis City Schools (Part 1) School Law Quarterly Volume 13, Issue 1, pp. 1-2
    97. 97. Thompson v. Memphis City Schools 0 Thompson had been a teacher with MCS since 1987 0 In 2004 an incident occurred at school which required her to take sick leave for the remainder of the 2004- 05 year and on into the 2005-06 year 0 Thompson returned to work during the Fall of 2006 but there was soon a dispute as to whether she had requested leave in the spring of 2007 0 Thompson was under the impression she had sick leave and there was a letter in her file requesting further leave from her physician
    98. 98. Thompson v. Memphis City Schools 0 When Thompson did not return to work, the Board’s Labor Relations Administrator sent a letter stating that her failure to return to work warranted discipline and termination 0 The letter sent by the board did not meet the requirements laid out by statute for the termination of a tenured teacher
    99. 99. Thompson v. Memphis City Schools 0 Thompson was terminated after she failed to return to work at the end of her sick leave 0 Board failed to do the following: 0 Send a letter identifying the charges 0 Failed to provide her with the required form letter from the Commissioner detailing her legal rights 0 Failed to inform her of her right to a tenure hearing 0 Thompson’s attorney wrote a letter stating that she had been improperly terminated and requested a tenure hearing
    100. 100. Thompson v. Memphis City Schools 0 After four months a complaint was filed in Chancery Court alleging that the termination violated the Teachers’ Tenure Act and the Fourteenth Amendment Due Process Rights 0 The complaint sought 0 Reinstatement 0 Full back pay 0 Compensatory damages 0 Attorney fees 0 Injunctive relief
    101. 101. Thompson v. Memphis City Schools 0 Both sides attempted to hold a tenure meeting 0 Notice of charges was never delivered to Thompson and she refused to participate 0 August 2009 the Superintendent sent Thompson a letter informing her of the charges and of her legal rights 0 Thompson refused to participate in the hearing and sought an injunction 0 Chancery court granted injunction and stated the hearing would be contrary to law until she was reinstated
    102. 102. Thompson v. Memphis City Schools 0 Based on the Chancery Court’s opinion the Board reinstated Thompson and scheduled a tenure hearing 0 Thompson objected to her reinstatement by stating she had not accepted the reinstatement 0 Hearing was suspended until the court clarified the term “reinstatement” 0 Court stated that reinstatement was controlled by 49- 5-511(a)(3) requiring payment of full salary 0 Board objected and refused to reinstate
    103. 103. Thompson v. Memphis City Schools 0 After numerous requests for summary judgment and dismissal, the court granted Thompson’s motion for summary judgment 0 Court found the doctor’s letter valid and granted her reinstatement and full back pay 0 Court also concluded her due process rights were violated and awarded her damages and attorney fees $320,000 0 MCS appeals
    104. 104. Thompson v. Memphis City Schools 0 Court of Appeals found that Thompson did have enough factual allegations to support a claim 0 COA held that MCS deprived Thompson of her property interest 0 COA affirmed the trial court’s decision not to dismiss 0 COA held that since there were disputed facts as to whether Thompson filed a leave of absence for Spring of 2007 that summary judgment was improper
    105. 105. Thompson v. Memphis City Schools 0 COA also determined that the award of back pay and compensatory damages was inappropriate because: 0 Summary judgment was improper because of disputed facts 0 Back pay is only appropriate if teacher is reinstated or vindicated 0 Chancery court review is limited only to the written record unless evidence shows that board was arbitrary or capricious 0 Remanded (end of Part 1)
    106. 106. McCormick v. Warren County Board of Education School Law Quarterly Volume 13, Issue 1, pp. 3-4
    107. 107. McCormick v. Warren County Board of Education 0 Ms. McCormick was injured after attending her granddaughters high school graduation when she stepped in a hole in the parking lot and fractured her ankle (2005) 0 Several months after she sustained a second fracture to the same ankle 0 In May of 2006 she filed suit alleging negligence and seeking $100,000 in compensatory damages 0 Board sought summary judgment but that motion was denied and then amended its answer to assert comparative fault asserting that it was an obvious “drainage area”
    108. 108. McCormick v. Warren County Board of Education 0 Trial court rejected the Board’s argument that the hole in the football field was concealed by grass and thus was a latent defect (immune from liability) 0 Board appealed raising the previous issue and arguing that the trial court erred in failing to allocate any fault to McCormick under the affirmative defense of comparative fault 0 Court of Appeals affirmed on the “latent defect” finding but remanded on the issue of comparative fault
    109. 109. McCoy v. Columbus City Schools School Law Quarterly Volume 13, Issue 1, pp. 5-7
    110. 110. McCoy v. Columbus City Schools 0 Gary Stroup was a forth-grade teacher who was apparently involved in questionable incidents with students as early as 1999 0 Additional incidents happened in 2000-2001 and 2003- 2004 0 In the spring of 2005 two other students witnessed Stroup touching “John Doe” inappropriately and reported it to the principal 0 An investigation by law enforcement and child services resulted in a fifteen-count indictment and a guilty plea for two of those and Stroup was sentenced to ten year’s incarceration and the surrender of his teaching license
    111. 111. McCoy v. Columbus City Schools 0 Doe, through his parents the McCoys, filed suit alleging violations of substantive due process, Title IX and related state claims 0 Upon completion of discovery, District filed a MSJ and the McCoys cross-filed a partial MSJ 0 The District Court held that there was not enough, until the final incident that resulted in imprisonment, to determine that Stroup’s behavior was severe or obvious enough to give notice that the most recent event would occur
    112. 112. McCoy v. Columbus City Schools 0 The school district did not have “actual notice” based on the prior behavior, nor did it act with “deliberate indifference” 0 The board had investigated prior incidents and took appropriate action with Stroup…since none of the prior allegations included any accusation of sexual harassment 0 The Sixth Circuit affirmed the trial court
    113. 113. McBurney v. Young (SCOTUS) School Law Quarterly Volume 13, Issue 2, pp. 1-2
    114. 114. McBurney v. Young 0 This case is based on the Virginia Freedom of Information Act which states that public records shall be open to inspection/copying by any citizen of the Commonwealth 0 Tennessee’s Open Records Act states that public records, “shall…be open for personal inspection by any citizen of this state…” 0 In 2001, the Tennessee Attorney General opined that persons who are not citizens of this state may be denied access to public records
    115. 115. McBurney v. Young 0 SCOTUS stated/held 0 Virginian law’s citizen/noncitizen wording has a nonprotectionist aim 0 Citizens should have a mechanism to obtain an accounting from public officials but noncitizens do not 0 Citizens foot the bill for the costs of recordkeeping 0 FOIA does not violate the dormant Commerce Clause… “when having created a market through a state program, it limits benefits generated by that state program to those who fund the state treasury and whom the State was created to serve” Decision 9-0
    116. 116. Parker v. Lowery School Law Quarterly Volume 13, Issue 2, pp. 2-4
    117. 117. Parker v. Lowery 0 Parker was a non-tenured teacher who had worked for 3 years and eligible for tenure (2009) 0 She was informed by her principal that she would not be re-hired for the coming year and the Director (Lowery) sent her a letter indicating the same 0 Teacher asked for a hearing to be scheduled with the Board but Lowery refused 0 Teacher filed suit alleging that Director exceeded his authority and that the Board had unlawfully abdicated its authority to decide tenure matters
    118. 118. Parker v. Lowery 0 Meanwhile, a Board Member filed suit alleging that the Board had relinquished its authority by allowing Director to make decisions regarding tenure without interference from the Board 0 Initially the decision hinged on 49-5-409(b)(1) which required a statement of prior authorization by a majority vote of the board with the name of the teacher recorded in the minutes (this was deleted in the 2011 session of the General Assembly) 0 Trial court ruled in favor of the teacher and board member based on that statute
    119. 119. Parker v. Lowery 0 Defendants filed a motion to alter or amend which the trial court granted ultimately holding that the Board would have been the proper party with standing to raise the issue 0 On appeal the question(s) were whether the trial court erred in dismissing the Teacher’s and/or Board Member’s cases and whether either plaintiff had standing to sue 0 Court of Appeals affirmed
    120. 120. Dickerson v. Rutherford County School Law Quarterly Volume 13, Issue 2, pp. 5-7
    121. 121. Dickerson v. Rutherford County 0 Yet another “slip and fall” negligence case 0 All these cases are very fact specific and boil down to where the most fault lies 0 Trial court found for the County 0 Court of Appeals reversed and remanded for further proceedings
    122. 122. Thompson v. Memphis City Schools (Part 2) Teacher Dismissal Due Process
    123. 123. Tennessee Supreme Court 0 TCS granted the appeal to determine whether a tenured teacher’s failure to return from sick leave amounts to a constructive resignation or a forfeiture of tenure 0 While a failure to return may constitute cause for termination there is no statute authorizing a board of education to deem it a construction resignation or a forfeiture of tenure
    124. 124. Tennessee Supreme Court 0 By dismissing Thompson without providing her written charges or an opportunity for a hearing her rights were violated under the Tenure Act and due process rights under the Fourteenth Amendment 0 Trial court properly granted summary judgment and properly awarded damages pursuant to Tenure Act and USCA § 1983 and attorney fees pursuant to USCA § 1988. 0 Remanded to trial court to calculate additional salary and benefits that accrued during the pendency of this appeal
    125. 125. What is the Moral of This Story?
    126. 126. Attorney General Opinions Volume 12, Issue 3 pp. 5-8 Volume 12, Issue 4 pp. 2-5 Volume 13, Issue 1 p. 8 Volume 13, Issue 2 p. 8
    127. 127. A.G. Opinion No. 12-60 Question Can members of a county or city legislative body share a meal together and casually discuss county or city business and/or issues before their respective legislative bodies under the Open Meetings Act, if the discussion is for informative purposes only and no decisions are reached or attempts made to obtain commitments? Answer The private discussion of public business at a meal by two or more members of a governing body could present the potential issue of whether a chance meeting, or informal assemblage, was used to decide or deliberate public business in circumvention of the spirit or requirements of the Open Meetings Act. Court decisions under the Act are necessarily fact dependent. Nonetheless, to avoid any violation of the Act the best advice is that, while two or more members may share a meal together in which public business is discussed, such discussion should not constitute deliberations, i.e., “examin[ing] and consult[ing] in order to form an opinion . . . weigh[ing] arguments for and against a proposed course of action.” See Johnston v. Metropolitan Government of Nashville and Davidson County, 320 S.W. 3d 299, 311 (Tenn. Ct. App. 2009).
    128. 128. A.G. Opinion No. 12-63 Question Does a 17-year-old student’s enrollment in state-approved general educational development (“GED”) programs under Tenn. Code Ann. § 49-6-3001(c)(2)(B) violate the compulsory school attendance requirements set forth at Tenn. Code Ann. § 49-6-3001(c)(1)? Answer No. Tenn. Code Ann. § 49-6-3001(c)(2)(B) allows a 17-year-old student to enroll in state-approved GED courses in fulfillment of Tennessee’s compulsory attendance requirement provided that, in the judgment of the local board of education, the student continues to make satisfactory progress in the GED courses.
    129. 129. A.G. Opinion No. 12-64 Question If a municipal school district is created in Shelby County, is the County required to apportion funding from countywide property taxes to the municipal school district on an average daily attendance (ADA) basis? Answer Shelby County would be required to apportion funding from countywide property taxes to the municipal school district based on “weighted full-time equivalent average daily attendance” (WFTEADA).
    130. 130. A.G. Opinion No. 12-66 Question Is the Jackson-Madison County School System eligible to be a participating employer in the Tennessee Consolidated Retirement System (TCRS) with respect to its non-teacher personnel if Madison County withdraws from TCRS? Answer No. The school system may not participate in TCRS if Madison County withdraws. A local governmental entity’s eligibility to participate in TCRS depends on the action of the chief legislative body of the political subdivision of which the entity is a part. In Madison County, non- teacher employees of the school system have been eligible to participate in TCRS only because the chief legislative body of Madison County passed an appropriate resolution authorizing such participation in 1978. The County’s chief legislative body, now known as the Madison County Commission, has the authority to pass a resolution terminating its participation in TCRS, and this resolution is binding on non-teacher employees of the school system.
    131. 131. A.G. Opinion No. 12-67 Question If a local board of education, in considering an amended charter school application under Tenn. Code Ann. § 49-13- 108(a)(2), fails “either to deny or to approve the amended application,” will the application be deemed approved or will it be deemed denied? Answer The amended application is deemed approved pursuant to Tenn. Code Ann. § 49-13-108(a)(2), as revised by 2012 Tenn. Pub. Acts, ch. 1021 effective July 1, 2012.
    132. 132. A.G. Opinion No. 12-68 Question Is Chapter 1065 of the 2012 Tennessee Public Acts, which allows local education agencies (LEAs) to sponsor charter schools, constitutionally suspect? Answer No.
    133. 133. A.G. Opinion No. 12-75 QUESTIONS 1. Is the Other Post-Employment Benefit Investment Trust Act of 2006, codified at Tenn. Code Ann. §§ 8-50-1201 to -1207 (hereinafter “the OPEB Act”), the only statutory authority that permits county school boards to establish an OPEB investment trust? 2. How may funds in an OPEB trust created under the OPEB Act be invested? 3. May the Tennessee School Boards Association (“TSBA”) administer an OPEB trust created under the OPEB Act? 4. Does the Interlocal Cooperation Act authorize county school boards to collectively establish an OPEB trust under the OPEB Act? 5. May a single county school board, or two or more county school boards, contract with TSBA to create and operate an OPEB trust?
    134. 134. A.G. Opinion No. 12-75 OPINIONS 1. The OPEB Act does not expressly preempt other statutes that may allow one or more Tennessee political subdivisions to establish trusts similar to the ones referenced in OPEB. Thus a private or public act could authorize a particular school board to create an OPEB trust without complying with the OPEB Act. But, absent such express authority, it appears the OPEB Act was intended to be the only statutory authority under which a county school board may create an investment trust for the purpose of pre-funding non-pension post-employment benefits accrued by employees of the political subdivision (hereinafter an “OPEB trust”). For this reason, absent the existence of any conflicting authority, any OPEB trust created by a county school board must comply with the OPEB Act. 2. Funds in an OPEB trust created under the OPEB Act must be invested as required by Tenn. Code Ann. § 8-50- 1205(1). 3. Yes. 4. Yes. Under the OPEB Act, the OPEB trust to be created must be approved by resolution by each individual school board and by the state funding board. Once each school board seeking to collectively create an OPEB trust has obtained the requisite approvals, the school board may enter an interlocal agreement with other schools under the Interlocal Cooperation Act to jointly exercise their statutory powers to administer an OPEB trust. Any such trust must comply with the requirements of the OPEB Act. 5. Yes.
    135. 135. A.G. Opinion No. 12-92 Questions 1. Whether either the United States or Tennessee Constitution prohibits a local government from requiring its employees to live within the local government’s jurisdiction, even where safety concerns do not require an employee to be readily available? 2. If the answer to question one is no, could the General Assembly constitutionally prohibit local governments from requiring their employees to live within the local government’s jurisdiction? 3. May the State or a local government constitutionally impose residency requirements or incentives that give preferential treatment to contractors that are either residents of the State or of the area encompassing a local government? 4. May the State or a local government constitutionally use race- based classifications in awarding public contracts?
    136. 136. A.G. Opinion No. 12-92 Answers 1. No. 2. Yes, the General Assembly could constitutionally prohibit local governments from requiring their employees to live within the local government’s jurisdiction. 3. Generally yes. 4. Any racial classification used in awarding public contracts is subject to strict scrutiny and will only be upheld if the state or local government can establish that it is narrowly tailored to promote a compelling governmental interest. Courts have found that remedying the effects of past intentional discrimination is a compelling governmental interest.
    137. 137. A.G. Opinion No. 12-94 QUESTION Is Chapter 879 of the 2012 Tennessee Public Acts, effective July 1, 2012, constitutionally suspect? ANSWER Chapter 879 is constitutionally suspect. Chapter 879, if applied to limit the employment in Tennessee of non-immigrant foreign workers admitted to this country through federal visa programs, would likely be found, like the Arizona law in Truax, to unconstitutionally interfere with the federal government’s regulation of legal aliens residing in this country.
    138. 138. A.G. Opinion No. 12-100 QUESTIONS 1. Can a school board legally extend a contract of a director of schools without giving the notice required by Tenn. Code Ann. § 49-2-203? 2. If not, would the extension of a contract with a director of schools that was made without the proper notice required by Tenn. Code Ann. § 49-2-203 be valid? OPINIONS 1. No. 2. An extension of a director of schools’ contract made without the proper notice required by Tenn. Code Ann. § 49-2-203 would be invalid. (It is the opinion of this office that the statutory prohibition on contracts greater than four (4) years [Tenn. Code Ann. § 49-2-203(a)(14)(A)] is not impacted by Opinion 12-100)
    139. 139. A.G. Opinion No. 12-104 QUESTIONS & ANSWERS 1. Does a county school board member, in a county that has adopted the County Financial Management System Act of 1981 (“CFMSA”), codified at Tenn. Code Ann. §§ 5-21-101 to -130 have a conflict of interest under Tennessee law if the board of education and county commission contract with a public building authority and construction manager to remodel a high school, the construction manager then hires a general contractor to perform the work, and the general contractor issues requests for public bids on subcontracts for the project and ultimately awards a subcontractor for electrical materials and services to a company that the school board member owns with his or her parents? (Probably no). 2. Does a county school board member, in a county that has adopted the CFMSA, have a conflict of interest under Tennessee law if a company owned by the member and the member’s parents is awarded no-bid contracts by the school system for minor electrical repairs, including labor and materials, performed at facilities owned by the county school system? (Probably no).
    140. 140. A.G. Opinion No. 13-03 QUESTIONS 1. Does Tenn. Code Ann. § 12-4-115 apply to contracts procured by a local education agency for the construction or renovation of public school buildings? (Energy related services) 2. Does the answer to the first question depend on the specific procurement process employed by a local education agency for its construction projects? OPINIONS 1. No. 2. No. (TSBA worked on legislation to change the results of this opinion which resulted in the passage of Public Chapter 281)
    141. 141. A.G. Opinion No. 13-27 QUESTION Does the school voucher program proposed by an amendment to Senate Bill 196/House Bill 190 of the First Session of the 108th Tennessee General Assembly (hereinafter “HB190”) violate either the United States or Tennessee Constitution, specifically the Establishment Clause of the First Amendment of the United States Constitution or article XI, section 12 of the Tennessee Constitution? OPINION The proposed amendment to HB190 is defensible from a facial constitutional challenge.
    142. 142. A.G. Opinion No. 13-34 QUESTION Under Tennessee law, a local education agency (“LEA”) receives Basic Education Program (“BEP”) funding for the current year based on the LEA’s prior year total student enrollment, with the opportunity to receive additional BEP funding if the LEA has a certain growth in its total student enrollment in the current year. If an LEA experiences a drop in total enrollment for the current year, must the LEA pass through funds on a per-pupil basis to charter schools within the LEA based on the number of students that are attending the charter schools during the current year? OPINION Yes. The LEA must pass through funds on a per-pupil basis to charter schools within the LEA based on the students that attend the charter schools during the year the LEA funds are distributed.
    143. 143. Click to edit Master title style ETHICS CLE: 4:20 – 5:20 P.M. Attorneys Only – Garden View AB Room
    144. 144. Click to edit Master title style BREAKFAST SATURDAY, JULY 13 7:30 – 8:30 a.m., Mountain View Room
    145. 145. Click to edit Master title style WRAP-UP & ADJOURN
    146. 146. Click to edit Master title style THANK YOU!
    147. 147. Click to edit Master title style Summer Law Institute Gatlinburg, Tennessee
    148. 148. Click to edit Master title style ROBB BRITT Director, Blount County Schools SGT. JEFF HICKS SRO Blount County Sheriff’s Office
    149. 149. T S B A S U M M E R L A W I N S T I T U T E J U L Y 1 3 , 2 0 1 3 Forming Effective Partnerships Between Schools and Law Enforcement
    150. 150. In the Beginning  Culture Shift from flying solo to flying together on the school safety journey  Move from Principal/Assistant Principal as SRO  Move to Principal/Assistant Principals working together with an SRO  Create a coordinated effort around safety
    151. 151. Working together  Cooperation with Sheriff’s Office, School System and County Commission  SRO works to secure our buildings with managing the Crisis Plan  Transportation/Traffic – bus, car, parents and students  Special Education – ABC classes  Assists with our drug and alcohol free schools
    152. 152. Creating Community  Consistently builds community relationships  Works with administration – working together is better than independently when it comes to school safety  SRO builds important relationships with all stakeholders - Staff, Students, Parents, Businesses, etc.  SRO knows the students!
    153. 153. Group Effort = Positive Results  Crisis Management Meetings Quarterly  Oversees Risk Management at school  Instrumental in planning of new schools  Camera Locations and Positions  Incident Command  Advise and Guide working with Counselors
    155. 155. Blount County Demographics  Population 123,901 ( 2011 Census)  567 sq. miles  Almost 11,000 students K-12  58% Economically Disadvantaged  13% Special Education  21 Schools
    156. 156. Mr. Britt’s Bio  28 Years with the Blount County Schools  Teacher/Coach at William Blount High School (8 years)  Assistant Principal at William Blount High School (8 years)  Principal at Carpenters Middle School (8 years)  Director of Schools (4 years)
    157. 157. Blount County’s S.R.O. Program  School Resource Officers implemented on high school campuses in 1996.  Expanded to middle schools in 1998.  School Resource Officers assigned to all schools in Blount County in 1999.  Currently 23 deputies assigned to the S.R.O. program.
    158. 158. Key Components  Detailed Memorandum of Understanding.  Selection and screening of the school resource officers.  Assessment and evaluation of the S.R.O. for the campus environment.  Crisis planning with the principals, faculty and staff.
    159. 159. Perspectives of the School Resource Office Program  As an Educator  Serving as a Principal  Role as a Director of Schools
    160. 160. Sgt. Jeff Hicks’ Bio  Began working with Blount County Schools as a D.A.R.E. instructor in 1992.  First office for a deputy placed on school campus in 1995 through the community oriented policing program.  Joined the S.R.O. program in 1998.
    161. 161. Duties of Supervision  Day to day operations of the S.R.O. unit  Principal and S.R.O. communication  S.R.O. interaction with students, parents and school staff  Emergency response planning for schools  Threat Assessment
    163. 163. REPORTING SYSTEM FOR STUDENTS AND PARENTS  On February 1, 2011 the Text-A-Tip program was launched for Blount County.  Since the implementation we have received over 500 tips from the community.
    165. 165. Blount County 911 School Campus Administrators Local School Districts Law Enforcement Agencies School Resource Officer
    166. 166. EXPANDING THE PARTNERSHIP FOR SAFE SCHOOLS  911 Center  Emergency Medical Services  Fire Departments  Local Health Care Providers  Corporate Sponsors
    167. 167. Click to edit Master title style QUESTIONS
    168. 168. Click to edit Master title style WRAP-UP & EVALUATION
    169. 169. Click to edit Master title style THANK YOU!