Legal Issues in Education: Pikes Peak Leadership Academy Session Topics

PIKES PEAK LEADERSHIP ACADEMY Legal Issues February 10, 2024 Widefield School District 3 Kirk Vsetecka, Assistant Superintendent, vseteckak@wsd3.org Amy Roden, Executive Director of Human Resources, rodena@wsd3.org

NORMS It is safe to discuss issues without using names. It is alright if you do not know all the answers. Everyone has helpful knowledge and experience. We can learn from one another. Focus thoughts and decision-making on your guiding principles and philosophy.

OBJECTIVES Learn common educational legal issues. Understanding to keep you, your school, and your district out of legal entanglements. Knowledge for success with staff, students, and others in the education environment.

BUILDING ADMINISTRATORS SHOULD Know and adhere to the policies, procedures, and expectations of the district Be prepared, be knowledgeable, and do not try to fake it Be a school administrator, not try to be an attorney Seek assistance, include others, and document, document, document Follow the Golden Rule: Treat staff/students/others as you would want to be treated Act with reasonableness Does it make sense?

DEVELOPMENT OF LEGAL PRACTICES Law: U.S. Constitution Colorado Revised Statutes (CRS) Legislative Case Law/Court Decisions - Judicial Rules and Regulations: State Board of Education Policy: District Board of Education (BOE) Colorado Association of School Boards (CASB) Procedures: Master Agreements, District/Building/Department/Student Handbooks, Codes of Conduct, Administrative Expectations, etc.

SESSION TOPICS Anti-Discrimination Hiring Process Fair Labor Standards Act (FLSA) Family Medical Leave Act (FMLA) Discipline and Due Process Supervision and Child Abuse Sexual Harassment and Misconduct Technology and Data Privacy Evaluation, Nonrenewal, and Dismissal, including Educator Effectiveness (Senate Bill 10-191) Current Legal Issues in Education

ANTI-DISCRIMINATION Policy AC, Nondiscrimination/Equal Opportunity Policy GBA, Open Hiring, Equal Employment Opportunity: is an equal opportunity employer. In the recruitment, selection, promotion, and termination of all personnel, there shall the basis of race, color, religion, national origin, marital status, gender, age, creed, ancestry, sexual disability and conditions related to pregnancy or childbirth. be no unlawful discrimination on orientation (which includes transgender),genetic information, U.S. Equal Employment Opportunity Commission (EEOC) Policy JB, Equal Educational Opportunities: Every student shall have equal educational opportunities regardless of race, color, ancestry, creed, sex, sexual orientation (which includes transgender), religion, national origin, marital status, disability, or need for special education services. U.S. Department of Education, Office of Civil Rights (OCR) Protecting Opportunities And Workers' Rights Act (POWR Act) SB23-172

HIRING PROCESS EEOC Guide to Pre-Employment Inquiries Procedural consistency Follow (and trust) the process Do not skip steps or preempt the process Staff input, notify supervisors, and involve others appropriately Portability Non-probationary status Human Resources role and function

FAIR LABOR STANDARDS ACT (FLSA) U.S. Department of Labor (DOL) Wage and Hour Division (WHD) Minimum wage, workweek/overtime, child labor provisions, and recordkeeping Exempt Employees = licensed, salaried, professional Non-Exempt Employees = non-licensed, hourly, classified 40-hour workweek Overtime (1.5 rate) or Compensatory ( Comp. ) Time (1.5 rate) Straight Time Exchange

FAMILY MEDICAL LEAVE ACT (FMLA) Job protection, not income protection Protects position for up to 12 weeks per year if employed for at least 12 months and 1250 hours Can run concurrently with an employee s use of accrued leave if the reason for leave qualifies (dependent upon district policy) Permitted reasons: Child birth Adoption, Spousal care Personal, parental, or child care for serious health condition Any qualifying exigency arising out of active duty in the armed forces - Uniformed Services Employment and Reemployment Rights Act (USERRA)

DISCIPLINE & DUE PROCESS Corporal Punishment case law and district policy CRS 22-33-105 and 22-33-106 = Suspension, Expulsion, and Denial of Admission Constitutional Right to Education: Authority given to individual states - all children within the state have a right to receive the state s education No denial unless proved via due process of law - suspension/expulsion denies right to public education Elements of Due Process: Reasonable rules and orders - notice of rules and consequences for violations Fair and objective investigation common law vs. school law - Probable Cause = law enforcement - Reasonable Suspicion = educational standard Proof substantial evidence Equal treatment applied without discrimination - penalty reasonably related to offense - How would a reasonably prudent person in the same or similar circumstance have acted?

SUPERVISION & CHILD ABUSE Safety is the first priority Supervision is serious procedures and expectations Negligence How would a reasonably prudent person in the same or similar circumstance have acted? Policy JLF, Child Abuse: Colorado statutes require every school official or employee to report known or suspected child abuse or neglect Train common sense, gut feeling, 80% perpetrated by parents or caregivers Policy GBEB, Staff Conduct (and Responsibilities): All district employees who have reasonable cause to know or suspect that any child is subjected to abuse or to conditions that might result in abuse or neglect must immediately upon receiving such information report such fact in accordance with Board policy and state law. Report in a timely manner, but leave the investigation to the authorities

SEXUAL HARASSMENT & MISCONDUCT Policy GBAA, Sexual Harassment for Employees: It shall be a violation of policy for any member of the district staff to harass another staff member or student through conduct or communications of a sexual nature. Any conduct of a sexual nature directed toward students by teachers or others to whom this policy applies, shall be presumed to be unwelcome. It is a form of sex discrimination Policy JBB, Sexual Harassment for Students: It shall be a violation for any staff member to harass students or for students to harass other students through conduct or communications of a sexual nature or to retaliate against anyone that reports sexual harassment or participates in a harassment investigation. Train common sense, position of trust, compromising situations, physical interaction (and physical correction of a child) Hostile Work Environment discriminatory factors conduct must be intentional, severe, recurring and/or pervasive and interfere with the employee's ability to perform his/her job.

TECHNOLOGY & DATA PRIVACY Policy GBEE-E, Acceptable Use Agreement confidentiality, social media, etc. Colorado Open Records Act (CORA) public records Health Insurance Portability and Accountability Act (HIPAA) medical information Family Educational Rights and Privacy Act (FERPA) educational records Children s Internet Protection Act (CIPA) internet safety Children s Online Privacy Protection Act (COPPA) parental consent Bullying/Cyberbullying Bill of Rights - 1stAmendment = Free Speech (Social Media); 4th Amendment = Search & Seizure (Cell Phones) Security vs. transparency - Public School Financial Transparency Act

EVALUATION, NONRENEWAL, & DISMISSAL Teacher Employment, Compensation, and Dismissal Act (TECDA), CRS 22-63-101 Evaluation: Probationary Teachers = minimum 2 formal observations & 1 summative report Non-Probationary Teachers = minimum 1 formal observation & 1 summative report Principals = minimum 1 summative report Special Service Providers (SSP) = minimum 1 summative report 50% Professional Practices and 50% Measures of Student Learning data (growth and achievement) Nonrenewal (Probationary) vs. Dismissal (Non-Probationary) Educator Effectiveness (Senate Bill 10-191), CRS 22-9-106 Mutual Consent, RIF, RIBS, Displacement, Portability, effectiveness ratings and status changes

CURRENT LEGAL ISSUES IN EDUCATION Financial Adequacy and Equity Charter Schools and Choice Standardized Testing Collective Bargaining associations/unions Corporal Punishment case law and district policy Special Education (SPED) inclusionary practices, Free and Appropriate Public Education (FAPE), Individuals with Disabilities Education Act (IDEA) LGBTQIA+ Students Department of Education, Department of Justice (DOJ), and White House transgender guidance Claire Davis Act (Senate Bill 15-213), CRS 24-10-106.3 limited immunity School Safety violence, guns, drugs, marijuana