the expanding role of the federal government in education
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© 2017 National School Boards Association. All Rights Reserved. 1
The Expanding Role of the Federal Government in Education and How It Affects the Practice
of School LawNancy Krent, Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington
Heights, IL (retired);
Cynthia Lutz Kelly, Topeka Unified School District No. 501, Topeka, KS
How much did federal law affect the practice of law 50 years ago?
How does federal law affect the practice of school law today?
© 2017 National School Boards Association. All Rights Reserved. 2
Federal Education Laws1
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George‐Barden Act
Impact Aid Law
s
Title VI of the Civil Rights Act
Elementary and Secondary Ed
ucationAct
Bilingu
alEd
ucation Act (Title VII ESEA)
Title IX
of the Education Amendments
Section 504 0f the Rehab
ilitation Act
Family Educational Rights and Privacy Act
Education of All Han
dicap
ped Child
ren Act
Protection of Pupil Rights Act
Departm
ent of Ed
ucation cab
inet level
Educ. Consolid
ation and Im
provement Act
Perkins Vocational & Technical Educ. Act
Equal Access Act
IDEA
Amendments
Teach for America
Educate America Act: Goals 2000
ImprovingAmerica’s Schools Act
Gun Free Schools Act
Child
ren’s Onlin
e Privacy Protection Act
McKinney‐Vento Homeless Assistance Act
No Child
Left Behind Act
English Lan
guage Acquisition Act
Indiv. w
ith Disab
ilities Im
provement Act
American Reinvestment & Recovery Act
Race to the Top In
itiative
Every Student Su
cceeds Act
Miscellaneous Federal Laws
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National School Lunch Act
Head
Start Act
Child
Nutrition Act
Commercial M
otor Vehicle
Safety Act
Omnibus Tran
sportation
Emp.Testing Act
Child
ren’s In
ternet
Protection Act
USA
PATR
IOTAct
Child
Nutrition Act
Reau
thorization
Man
dates Welln
ess
Program
s
Healthy, Hunger‐Free Kids
Act
© 2017 National School Boards Association. All Rights Reserved. 3
Federal Employment Laws1
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Social Security
Act
Fair Lab
orStan
dards Act
Equal Pay Act
Title VII of the Civil Rights Act
Age Discrim
ination in
Em
ploym
ent Act
Occupational Safety an
d Health
Act
Fair Credit Reporting Act
Pregn
ancy Discrim
inationAct
Immigration Reform
and Control
Act
Electronic Communications Act
Americans with Disab
ilities Act
Older Workers Benefit Protection
Act
Family and M
edical Leave Act
Uniform
edSe
rvices Em
ploym
ent
and Reemploym
ent Rights Act
Health In
surance Portab
ility
and
Accountability Act
Fair and Accurate
Credit
Tran
sactions Act
ADA Amendments Act
Genetic In
form
ation
Nondiscrim
ination Act
Lily Ledbetter Fair Pay Act
Affordab
leCare Act
Federal Environmental Laws
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Federal W
ater Pollu
tion
Control A
ct
Clean
Air Act
Air Quality Act
Lead
‐Based Paint Poisoning
Prevention Act
Federal Insecticide, Fungicide
and Rodenticide Act
Safe Drinking Water Act
Resource Conservation and
Recovery Act
Toxic Su
bstan
ces Control A
ct
Comprehensive
Environmental R
esponse,
Compensation & Liability Act
Safe Drinking Water
Amendments
Asbestos Hazard Emergency
Response Act
Mercury‐Containing an
d
Rechargeab
le Battery
Man
agement Act
Food Quality Protection Act
Chemical Safety for the 21st
Century Act
© 2017 National School Boards Association. All Rights Reserved. 4
1930s1940s & 1950
1960s 1970s 1980s 1990s 2000s 2010sGeorge‐Barden Act
Impact Aid
Title VI
ESEA
Bilingu
alEd
.
Title IX
Section 504
FERPA
EAHCA
PPRA
DOE Cab
inet
ESEA
Perkins VTE
Equal Access
IDEA
Teach for America
Goals 2000
IASA
Gun Free
COPPA
Homeless
NCLB
IDEIA
ARRA
ESSA
School Lunch
Act
Head
Start
Child
Nutrition
Comm. M
otor
Vehicle Safety
Tran
s. Testing
Act
CIPA
USA
PATR
IOT
CAN‐W
elln
ess
Healthy Kids
Social Security
FLSA
Equal Pay Act
Title VII
ADEA
FCRA
OSH
A
PDA
IRCA
ECPA
ADA
OWBPA
FMLA
USERRA
HIPAA
FACTA
ADAAA & GINA
FairPay
ACA
Fed. W
ater
Pollu
tion
Clean
Air
Air Quality
Lead
Paint
FIFR
A
Drinking Water
RCRA
TSCA
CER
CLA
Drinking Water
AHER
A
Battery
Mgt.
FoodQuality
Protection
Chemical Safety
Non‐regulatory guidanceRegulations
Non‐regulatory guidanceRegulations
Non‐regulatory guidanceRegulations
Non‐regulatory guidanceNon‐regulatory guidance
Elementary and Secondary Education Act
ESEA
Access to equal opportunities
A Nation at Risk
Excellence & Rigor
Education Summit
National Goals
Standards
Goals 2000 and IASA
Standards‐based reforms
Some accountability
No Child Left Behind
Assessment and Accountability
ARRA & Waivers
Prescribed intervention models and reform focus
ESSA
Return flexibility to the states
Standards and Sanctions determined by states
Accountability and Assessment remain with a reduced footprint
© 2017 National School Boards Association. All Rights Reserved. 5
Individuals with Disabilities Education Act
Equality of Access
Quality of Programs
Accountability for Outcomes
Results‐Driven Accountability
Letter to Chief State School Officers 5/9/14
• Use of Dear Colleague Letters to change policy• Potential change through the U.S. Supreme Court
• The Rowley FAPE Standard and Endrew F.
Anti‐Discrimination Laws
• Section 504• Regulations go beyond statutory provisions
• Guidance documents further expand requirements• Parental Consent
• Best Practice in other areas
• Implication of liability• Behavior supports
• Title IX• Harassment
• Court standards vs. OCR standards
• Expansion of issues• Guidance without rulemaking
• GG v. Gloucester County
• Title VI• Overcoming language barriers
• Harassment & Bullying
• Disparate imposition of discipline
• Review guidance documents
© 2017 National School Boards Association. All Rights Reserved. 6
Federal Court Involvement
Student Discipline
Student Expression
Equal Educational Opportunity
Federal Court Involvement: Student Discipline
Student Discipline
• 14th Amendment• Basic Due Process Rights• Substantive Due Process• Equal Protection
• 4th Amendment ‐ Search & Seizure• Property Searches• Strip Searches• Cell phones and other electronic communication devices
© 2017 National School Boards Association. All Rights Reserved. 7
Federal Court Involvement: Student Expression
Student Expression
• The established standards• Tinker• Bethel• Hazelwood• Morse
• Applying the standards to cyberspace• Are we entering a new age of protest?
Federal Court Involvement: Equal Educational Opportunity
Equal Educational Opportunity
• The rise and fall of desegregation
• Affirmative action
• Diversity concerns
• Gary B. v. Snyder—implications for the future
Mainland US Largest School Districts
District % Min. % Hi Seg. Schools
(> 80%)
NYC 86% 79%
LA 91% 83%
Chicago 91% 85%
Dade Cy. 91% 87%Characteristics of the 100 Largest Public Elementary and Secondary School Districts in the United States: 2008–09, Dept of Ed
© 2017 National School Boards Association. All Rights Reserved. 8
Other Federal Laws
Privacy
FERPA
PPRA
COPPA
Safety & Security
Children’s Internet Protection Act
USA PATRIOT
Student Clubs
Equal Access Act
Student Discipline
Gun Free Schools Act
IDEA Discipline Provisions
Homeless
McKinney Vento Education of Homeless Children and Youth Act
Other Federal Laws
School Lunch Program
Transportation & Bus Drivers
Pre‐school programs
© 2017 National School Boards Association. All Rights Reserved. 9
Federal Employment LawsHiring Discrimination Pay Benefits Safety & Privacy
Fair Credit Reporting Act
Title VII of the Civil Rights Act of 1964
Fair Labor Standards Act
Family and Medical Leave Act
Occupational Safety and Health Act
Fair and Accurate Credit Transactions Act
Age Discrimination in Employment Act as amended by the Older Workers’ Benefit Protection Act
Equal Pay Act Uniformed Service Employment and Reemployment Rights Act
Electronic Communications Privacy Act
Immigration Reform Control Act
Pregnancy Discrimination Act
Lilly Ledbetter Fair Pay Act
Health Insurance Portability and Accountability Act
Americans with Disabilities Act as amended by ADA Amendments Act
Affordable Care Act
Genetic Information Nondiscrimination Act
Federal Environmental Law
• Building and grounds keepers
• Custodians
• Food Service Workers
• Construction
• Demolition
• Science labs
© 2017 National School Boards Association. All Rights Reserved. 10
Practice Tips
• Make sure your clients have appropriate policies in place.
• Make sure your clients understand and comply with the notice and recordkeeping requirements of federal laws.• COSA publishes a list of required annual notices on a yearly basis. The most recent version of the chart can be found at https://cdn‐files.nsba.org/s3fs‐public/reports/2016%20Annual%20Policies.pdf?TvLu1tXBuEF3PRjZeXz89QAcWMkC7l_3
• The COSA chart of record retention requirements can be found at https://cdn‐files.nsba.org/s3fspublic/reports/Record_Retention_Requirements_Chart_2011.pdf?4KjzzBnuRTPp..qF55D0ejewkpPFdxal
Practice Tips
• Encourage your clients to adequately train their employees on pertinent provisions of federal law.• Harassment complaints—Principals; HR
• Environmental laws—Buildings & Grounds, Custodians, Science Teachers
• Plethora of federal employment laws governing leave, overtime, exempt and non‐exempt status, safety, privacy, background checks, etc.‐‐HR
• Student discipline, including search and seizure—Principals & deans
• IEP teams and 504 teams
• If clients seem reluctant to engage in regular training, remind them that agencies enforcing federal discrimination laws require training.
© 2017 National School Boards Association. All Rights Reserved. 11
Practice Tips
• Always look to federal law, even when you think state law covers the issue.
• Especially when dealing with OCR, look to guidance documents to find their interpretation of the law.
• In student discipline matters, be sure to consider both potential statutory and constitutional claims.
• Maintain documentation with federal agencies or federal claims in mind.
Practice Tips
• Federal procedure, evidence and privilege law are often different than state law, so make sure you are aware of the differences as you move forward.
• If there are federal claims, consider removing the case to federal court, if it was not filed there.
• Always assume that you will be litigating in the less favorable forum, and plan accordingly. It is better to be pleasantly surprised.
© 2017 National School Boards Association. All Rights Reserved. 12
What comes next?
•Where will we see changes?• IDEA Reauthorization• OCR• OSEP• Title I• Funding• “School Choice”• And …………
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