Friday, December 8, 2017

Massachusetts Council of School Attorneys 2017 Annual Meeting

First up: Rhoda Schneider from DESE
"change is constant in this field...there's a reason we went into public education, or for many of us, school law...there are changes in education and in law every day...that keeps our practice dynamic"

New bilingual law: LOOK act
to design and tailor work with English learners
there will be guidelines and regulations: rolling out over the course of the next six months or so
"every reason to hope this law will be a benefit"

special education: soliciting public comment on 603 CMR 28.10
responsibility for kids who are not living with their own parents/families; kids in foster care
to align with ESSA
to stay in their schools of origins even if they live elsewhere (aligns with McKinney-Vento)
have to align practice and legal obligations
"let's maintain some stability for them, at least with regards to education"
comment deadline is January 19, 2018

requirement for conducting verbal screening of substance abuse
was subject to appropriation
policies have been updated as needed
screening done by nurses or counselors; a conversation with a student
Guidance coming from DESE on this next week; will include
  1. grades 7 and 9
  2. DPH provides training
  3. districts must provide advance notice to parents (this year, before screening; next year, in advance of handbook)
  4. parents and students can opt out at any point
  5. CRAFFT tool used
  6. strict confidentiality in screenings; may NOT be used for disciplinary purposes; individual information cannot be disclosed except in a dire emergency, save with release from parents

Kimberly Rozak on sexual harassment/ Title IX
guidance from US DoE: more application to colleges and universities
interim guidance was in response that DoE's 2011/14 did not adequately address the due process rights of the accused
expect that there will be more rulemaking and guidance
retains some of the basic constraints of earlier documents
schools to take steps to investigate
school is obligated to take steps of what has occurred (so long as a school knows or should know, must undertake investigation)
Title IX coordinator must be appointed
adopt and publish grievance procedures
"prompt and equitable process" in responding to complaints
allow all sides to present their stories; allow for all parties to present witnesses
question of due process on behalf of accused
people are being charged with criminal misconducted and schools are being asked to put forward a procedure in handling it
"students' lives are at risk"
reasonable prompt deadlines for major parts of complaint process
parties must to notified of outcome
standard can be higher than "by a preponderance of evidence" (which was earlier guidance)
new standards can be "by clear and convincing evidence" (up to institution to decide which)
allow for a mediation process; both parties must volunteer
no longer 60 days; "now timely manner"
if school allows for appeals, may allow for both parties to appeal
school should provide written notice of outcome of procedings
no reminder of no retaliation (as previously)

John Foskett on Public Records Law: what's frivolous and harassing
first time that notices that there could be frivolous and harassing
structural problem in regulations; only in context of request for an extension of time (supervisor may determine that it's frivolous and harassing when apply for extension)
"aware of only one determination" in town of Wellelsley 
"if that's the bar, we're all lost"
must religiously respond within timelines
plan to file request from  supervisor for relief
"has to be some sort of resort to the courts" (though it hasn't happened yet); cases out there that would seem to fit that situation
emails containing student names are not public records (per DESE) (thus parents can't ask for emails with their child's name)
lobby for reasonable amendments to statute

Rebecca Bryant and Andrea Bell on pay equity and pregnancy fairness act
effective April 1, 2018
employers are obligated to provide all employees with positive notice
notice whenever they bring on
notice again when pregnant
expands protections in workplace to include pregnant workers or workers with pregnancy related conditions
lactation as a condition that must be accommodated unless it would pose an undo hardship
more frequent breaks, non-bathroom space for milk pumping, modify schedule, changes on seating, light duty, time off
like ADA, cannot require a doctor's note for any of the above
cannot undergo typical analysis for a handicap individual
sit down and talking with the individual can sometimes solve problems (and is required)
accommodation as reasonable and necessary
"in a school setting, I think you're going to find it relatively straightforward" for many support personnel
more complicated to manage for teachers (as they need staffing for students)
districts have not had good luck in courts; have had good luck on disruption of kids' learning
can't require someone to take a leave if anyone accommodation is workable
Pay Equity law comes into play in July 1
addresses equal pay for comparable work
now more expansive definition: skills, conditions, responsibilities
currently: substantive content work and common characteristics of the work (based on SJC decision on cafeteria workers and custodians), now will change
"going to be taking a look at cafeteria worker and custodian contracts"
can't handle by lowering pay for people
provides for affirmative defenses
safe harbor provision: if you undertake a review, escape some liability
have to undergo a review and be making progress
AG's office to provide tools for review
provides for double damages
puts restrictions on employers on communication on incoming employees (can't ask what they are making)
update all job descriptions
have an accurate org chart
understand what merit pay might have
make sure no interviewers as about past pay
get prepared to do self-audit
not anticipating regulations

Stephen Finnegan, MASC General Counsel
mandate for conducting screening for students for 2017-18 school year
now has been appropriation for screening ($200,000)
keep careful records of the expenses the school system has incurred as a result of the screening
state auditor can do something if records show there are expenses involved

H304: innovation zone
Commissioner vested with authority to establish innovation school zones in districts that fall in bottom 20%
"has not been the case of innovation schools"
innovation schools required to be authorized by school committee, vote by 2/3rd of school committee
"would move a lot of those issues to Commissioner and the Board"
sounds more like what we have for charter schools; as opposed to what we've made use of (55 innovation schools; 49 charter schools)
"why do we need this if the school zone issue, the empowerment zone issue, can be handled within the scope of current law?"

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