Considering Summer

As the school year comes to an end for many districts while others prepare for upcoming vacations, school leaders have the opportunity to reflect on successes and failures, how to improve as well as ways to redefine their respective missions.

Here are a few tips to maximize your “down time”:

1) Take time to visit your school community
– Walk the district
– Visit the local businesses
– Interact with neighborhood families

2) Provide administrators, teachers and staff with a suggested reading list
Choice Words by Peter Johnston
A Place Called School by John I. Goodlad
Think Like A Freak by Steven D. Levitt and Stephen J. Dubner
David and Goliath by Malcolm Gladwell

3) Collaborate with colleagues in similar positions from other districts to share best practices and invaluable insights

4) Consider new legislation and how it impacts your district

5) Regroup and reconnect with family and friends

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Recent Decision Striking Down California Teacher-Tenure Laws Sparks National Debate

On June 10, 2014, a California state trial court judge held that California’s laws that govern teacher hiring, firing and tenure violated the California Constitution’s guarantee that all children will receive an education. The judge found that preventing dismissal of ineffective teachers disproportionately affected low-income and minority students, ultimately undermining the children’s ability to succeed in school. Citing Brown v. Board of Education and California Supreme Court decisions, the judge held that these disparate effects must no longer be tolerated.  This trial court decision undoubtedly will be appealed.

Although this decision does not directly impact Indiana laws or Indiana schools, it is widely expected to ignite a national discussion concerning the current regime of protections afforded teachers by statute and through collective bargaining agreements. Indeed, U.S. Education Secretary Arne Duncan praised the ruling as a national “mandate” to fix the problems plaguing the public education system. “This decision presents an opportunity for a progressive state with a tradition of innovation to build a new framework for the teaching profession,” Duncan said. Secretary Duncan added, “Every state, every school district needs to have that kind of conversation.”

Indiana’s Constitution, similar to California, recognizes a right to a public education without tuition for all children. As a trailblazer in education reform, Indiana recently adopted changes that increased accountability for schools and teachers. The California decision may bring pressure for additional reforms.  Indiana, as well as other states, probably will face similar lawsuits.

The Education Group at Bose McKinney & Evans can help ensure your organization is informed and ready to manage any labor and employment issue that may arise in 2014.  Please contact Chuck Rubright or Jon Mayes with any questions or concerns.

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Potential Cost Savings in the Cloud

At a time of decreasing resources, Indiana school districts are understandably attracted to anything that allows them to do more with less. Cloud computing offers the opportunity to add computer applications and data storage capacity to their networks without the substantial expense of staffing, developing and supporting the effort locally. The United States Department of Education (USDoE) calls this “next generation computing” and says, “To help build out an infrastructure for learning, districts and schools should begin a transition to the next generation of computing system architectures”. See http://www.ed.gov/technology/netp-2010/next-generation-computing%20.

While data storage is one cloud service, entire applications can be moved to the cloud to take advantage of the economies of scale that results from groups of users using super-computing resources that were historically available only to the largest users. Network users see the benefits, but school boards and information technology staff members see the very real risks of moving entire school district data functions off site into the cloud.

From the perspective of the cloud vendor, school districts look like any small to medium size business and this can result in a vendor offering a contract for cloud services that offers improved functions and substantial cost savings but on a take it or leave it basis. From the vendor’s perspective individualized arrangements add programing expense and reduce the economies of scale that allowed them to offer savings. But there are issues that a K-12 cloud services contract must address, i.e. service interruptions, hackers, data loss, evidentiary foundations, FERPA re-disclosure requirements, etc. Still, most boards will conclude that the benefits are too good to pass up. Vendors will reach the same conclusion. Vendors will want public school districts as clients, so their cloud service agreements will need to be tailored to public schools only once in order to do business with a client base of thousands of public school districts across the nation.

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New FMLA Forms, GINA and the Information You DON’T Want

Using one federal agency’s forms should satisfy other federal agencies – right?  The answer: not exactly. The Department of Labor (USDoL) has updated its optional FMLA forms and has given them a 2015 expiration date (they are unlikely to make it to 2015 due to changes needed).  If the FMLA forms you’re using do not say “Expires 2/28/2015” in the upper right hand corner, go to the USDoL web site and get new forms.  See http://webapps.dol.gov/libraryforms.   

Simple right?  But the Title II of the Genetic Information Nondiscrimination Act of 2008 (“GINA”) is enforced by the EEOC and became effective on November 21, 2009. GINA provides ”safe harbor” language that should be in any request for information about an employee that might include information about “genetic testing” or hereditary diseases such as a family medical history information.  To avoid getting information you do NOT want to receive, the EEOC has provided “safe harbor” language that can be included in any request for medical information.  This information needs to be added to any request for medical information about an employee or family member, including the USDoL’s FMLA forms:

The Genetic Information Nondiscrimination Act of 2008 (“GINA”) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of an applicant or employee, except as specifically allowed by this law. Consideration of family medical history information may violate GINA.  To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information.

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New Requirements Are Imposed By Public Law 148 Upon School Districts For The Contracts Of Certain Certificated Employees

Contracts between Indiana public school boards and their superintendent, administrators, teachers and bus drivers have always been public records under Indiana’s Access to Public Records Act (Ind. Code 5-14-3). Contracts with certificated employees also are covered by Ind. Code 20-28-6-2(d).  These contracts always have required approval by a public vote of a majority of the full board rather than a majority of a quorum.  So transparency with respect to these important documents always has been guaranteed by Indiana law, but at times, the contracts were written to incorporate federal and state tax laws.  These references were efficient, but at times, these references made the contract hard for a community member to understand. 

The 2012, the Indiana General Assembly added conditions precedent to the approval of certain employment contracts through Public Law 148-2012, Acts Of 2012.  Public Law 148-2012 (also known as HEA 1205-2012) is effective July 1, 2012.  It requires Indiana school boards to publicize all of the employment contracts it enters into with its certificated employees. “Certificated” as used here means employed in a position requiring a license from the Office of Educator Licensing and Development in the Indiana Department of Education.  The requirements of Public Law 148-2012 are summarized below:

Superintendent’s Contract  (I.C. 20-26-5-4.3)

  • Seven days prior to a governing body entering into a contract with a superintendent, the governing body shall hold a public meeting on the contract at which public comment is heard.
  • Notice of the proposed meeting must be given in accordance with I.C. 5-3-1 and posted on the school district’s website.
    • Notice is published at least one time at least 10 days prior to the meeting.
    • Notice states date, time and place of meeting.
    • Notice must state details of the proposed contract including the actual monetary value of the contract, benefits and any additional forms of the contract for each year of the
    • For a candidate for employment the notice and contract may exclude the name.
    • After entering into the contract, the governing body shall post the superintendent’s contract on the school district’s website.

Certificated Contracts  (I.C. 20-26-5-4.7)

Other than the Superintendent and any other certificated employees that are not represented by an exclusive representative under the Teacher’s Collective Bargaining Act.

  • The Superintendent shall post the provisions of an employment contract that the School Corporation enters into with a certificated employee on a School Corporation’s Internet website.

Teachers Collective Bargaining Agreement  (I.C. 20-29-6-1.9)

  • Not later than fourteen (14) business days after the parties have reached an agreement under this chapter, the school employer shall post the contract upon which the parties have agreed on the school employer’s Internet website.

Comments and Recommendations

In essence, Public Law 148, Acts of 2012 amends three different code provisions so that every contract on a certificated employee (by the collective bargaining agreement for teachers) is not required to be posted.  The effective date is July 1, 2012.

Where a contract and/or addendum incorporates another document, such as an Administrative Fringe Benefit Guideline, that document also should be posted.  Where a contract and/or addendum does not incorporate another document, again, such as an Administrative Fringe Benefit Guideline, that document technically is not required to be posted pursuant to the Mandate of Public Law 148, Acts of 2012.  However, it is a public document.  If it is not posted, it is not a violation of the newly mandated provisions, but that failure to post could result in the school corporation being criticized as to not complying with the spirit of Public Law 148, Acts of 2012 and failing to be transparent.

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New Non-Discrimination Notice

This is the time of year when K-12 schools collect the experience of the prior year and update their student handbooks.  Because several federal agencies offer sample notices that they would like to see in student/parent handbooks, it makes good sense to look at those sites.

The Office of Civil Rights (OCR) in the United States Department of Education (USDoE) has amended its suggested “Sample Notice of Non-discrimination” to include a specific reference to duties enforcing the Boy Scouts of America Equal Access Act.  So OCR now enforces Title VI of the Civil Rights Act of 1964 (race), Title IX of the Education Amendments of 1972 (sex), Section 504 of the Rehabilitation Act of 1973 (disability), the Age Discrimination Act of 1975 (age) and the Boy Scouts of America Equal Access Act (equal access to meet on school premises or in school facilities for the Boy Scouts of America and other designated youth groups).  To learn more from the OCR web site, go to: http://www2.ed.gov/about/offices/list/ocr/docs/nondisc.html#ftn1.

The following sample notice of non-discrimination meets the minimum requirements of the regulations enforced by OCR:

The _______ School District does not discriminate on the basis of race, color, national origin, sex, disability, or age in its programs and activities and provides equal access to the Boy Scouts and other designated youth groups. The following person has been designated to handle inquiries regarding the non-discrimination policies:  Name and/or Title; Address; Telephone #.

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Updated FERPA & PPRA Annual Notices

The Family Educational Rights and Privacy Act of 1974 (“FERPA”), is administered by the Family Policy Compliance Office (“FPCO”) in the U.S. Department of Education. The FPCO also enforces the Protection of Pupil Rights Amendment (“PPRA”).  Indiana Code 20-30-5-17 creates parental rights similar to the PPRA.  The FPCO’s web site includes updated FERPA regulations as well as sample forms and suggested content for annual notices required by FERPA and the PPRA. See http://www2.ed.gov/policy/gen/guid/fpco/index.html.

The Printout They Can’t Just Throw Away. In 2012, secure disposal of confidential information is a hot topic. Some of us recall the TV news story showing a reporter standing next to a dumpster behind a pharmacy and pulling out lists of who takes birth control and anti-depressants.  Data tracking individual student performance is equally confidential.  As school districts share information tracking individual students with program evaluators, the responsibility for a written data management and destruction agreement with each researcher is placed on the school district that originated the data.  Sample agreements are on the FPCO web site.

Clearing the way for the yearbook, honor role and coverage of sports teams. The FPCO also offers a sample notice concerning a school district’s release of “directory information” under FERPA unless a parent or eligible student (age 18+) objects.  Because most school districts release “directory information” by publishing yearbooks, stats sheets for student athletes  and graduation programs, a FERPA  “directory  information” notice must be given each year.  Updated FERPA regulations allow more discretion to release and not release director information.  This discretion needs to mesh with the provision of the Indiana Access to Public Records Act addressing release of lists of students.  See Ind. Code 5-14-3-3(f).  For a superintendent or principal caught in the middle, access to directory information by military recruiters is addressed on the FPCO site and in Ind. Code 20-33-10.

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