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School
Law News IN THIS ISSUE:
U.S. Supreme Court To Review The
Pledge of Allegiance The United States Supreme Court has agreed to review
a decision by the Ninth Circuit Court of Appeals, which ruled that a
school board policy mandating teachers to begin each school day by
requiring students to recite the Pledge of Allegiance is unconstitutional. The Ninth Circuit Court of Appeals specifically ruled that
the board policy in question was unconstitutional because the policy
impermissibly coerced a religious act. In this case, Elk Grove United School District v.
Newdow, the self-professed atheist father of a student in the school
district filed suit on behalf of his daughter challenging the school board
policy that requires teachers to begin each school day by having students
recite the pledge. The father
is the non-custodial and out-of-wedlock father of the student.
Neither the child’s mother nor the child are atheists, nor are
they troubled by the child reciting the pledge each day in school.
The father was assured that his daughter was not required to join
her classmates in reciting the pledge each day; she had the option of
remaining in her seat while her classmates recited the pledge.
However, the father maintained that his daughter was injured simply
because she had to watch and listen as her teacher led her classmates in
the pledge, which he described as a ritual proclaiming, “there is a
God.” The Supreme Court has previously ruled that school
districts cannot require students to recite the pledge.
Rather, students must be allowed to sit or stand respectfully while
the pledge is recited or to leave the room during the pledge.
Students also may not be disciplined for refusing to recite the
pledge. The Supreme Court in
this case will consider whether students’ constitutional rights are
infringed upon merely because they may be required to listen to the
recitation of the pledge. The Supreme Court is scheduled to hear arguments on
this highly controversial case on March 24, 2004, and is expected to issue
a ruling by the end of June 2004. The
Newdow decision will likely have far-reaching implications for school
districts across the nation. Additionally,
the U.S. Congress has indicated that it might take action on the matter if
the Supreme Court refuses to overturn the Ninth Circuit’s decision. New State FOIA Guide For RFP
Evaluation Meetings Just over two years ago, the South Carolina Supreme
Court ruled, in Quality Towing, Inc. v. City of Myrtle Beach, that an
evaluation committee formed for the purpose of reviewing and scoring
Request for Proposal (“RFP”) responses, in order to forward a
recommendation to a city council, is a “public body” that is subject
to the Freedom of Information Act (“FOIA”) public meeting rules.
The court ruled that this is true even when the evaluation
committee does not consist of members of the governing body, so long as
the committee’s recommendation goes to the governing body for final
action. While the full
applicability of FOIA to an RFP that will be awarded at the staff level is
unclear, it has become a best practice to ensure that FOIA requirements
are met when an RFP committee evaluates proposals for contracts that can
only be awarded by the public body itself. One of the most high-profile RFP selection processes
that occurs in any school district is the selection of professional
services, especially for construction managers, architects, and engineers.
To aid FOIA compliance in situations where Quality Towing applies,
the State of South Carolina’s own procurement staff have developed a new
guide entitled, How to Comply with FOIA in Holding RFP Evaluation Panel Meetings and Architect/Engineer Selection
Committee Meetings, which was issued in October of 2003.
The State’s new guide contains many suggestions, forms, and
“walk-through” procedural steps to help any evaluation committee
manage the FOIA technical requirements, while still engaging in an
evaluation process that retains appropriate levels of fairness and
confidentiality for the proposers. Topics
include proper notice, what minutes are required, and public access to the
committee meeting. Of
particular interest are the delicate topics of closed sessions of the
evaluation committee, and the proper methods under FOIA for individual and
aggregate scoring and ranking. We believe this guide is a well-reasoned approach to
the complex overlapping of FOIA and procurement rules, and highly
recommend that procurement and business officials acquire a copy for quick
consultation. We will be
happy to supply a copy of How to Comply with FOIA in Holding RFP
Evaluation Panel Meetings and Architect/Engineer Selection Committee
Meetings to our clients upon request. Alternate Achievement Standards And
Alternate Assessments Under The No Child Left Behind Act Of 2001 In December 2003, pursuant to the No Child Left
Behind Act of 2001 (“NCLBA”), the United States Department of
Education (“USDOE”) issued final regulations addressing the use of
alternate achievement standards and alternate assessments for students
with significant cognitive disabilities.
These regulations give local school districts greater flexibility
in meeting the NCLBA’s requirements for students with serious
disabilities. Pursuant to the newly issued regulations, states may
establish alternate achievement standards and alternate assessments for
students with the most severe cognitive disabilities for the purpose of
satisfying the adequate yearly progress (“AYP”) requirements of the
NCLBA. Also, states are
allowed to identify through IEP teams students who have severe cognitive
disabilities. The legislation
does not limit the number of students that can be tested with an alternate
assessment; however, it does limit the number of scores based on alternate
achievement standards that can be included in proficient AYP calculations.
Specifically, the regulations place a one percent cap on the number
of proficient and advanced scores earned by students who are subject to
alternate standards that may count towards AYP.
Individual schools are not subject to the one percent cap.
The cap applies only to state and school district accountability
decisions. Further, states
and school districts may exceed the one percent limit if they can
satisfactorily demonstrate to the USDOE that they have a larger population
of students with the most severe cognitive disabilities. The new regulations will help ensure that schools
receive credit for the progress of all students, including those children
with the most severe cognitive disabilities, while at the same time
ensuring that schools are not penalized for the failure of these students
to achieve at the same level as students without similar severe
disabilities. Fourth Circuit Court Of Appeals Rules
Student Dress Code Overbroad In Newsome v. Albemarle County School Board, the
Fourth Circuit Court of Appeals recently addressed a student’s First
Amendment challenge to his school’s dress code.
A sixth-grade student wore a t-shirt that depicted three black
silhouettes of men holding firearms superimposed over the letters
“NRA,” positioned above the phrase “Shooting Sports Camp.”
In reaction to the t-shirt, the school subsequently revised its
student handbook and dress code to prohibit students from wearing
“messages on clothing, jewelry, and personal belongings that relate to
drugs, alcohol, tobacco, weapons, violence, sex, vulgarity, or that
reflect adversely upon persons because of their race or ethnic group.”
The student challenged the school’s policy on the grounds that
his First Amendment rights to freedom of speech and association had been
infringed upon and that the dress code was both unconstitutionally
overbroad and vague. The Fourth Circuit determined that the school was
required in this instance to show a specific and significant fear of
disruption, not just some remote apprehension of disturbance, in order to
preclude the student from wearing this shirt.
The court summarized that “if a school can point to a
well-founded expectation of disruption—especially one based on past
incidents arising out of similar speech—the restriction may pass
constitutional muster.” The
court also stated, however, that the First Amendment will protect the
non-disruptive expression of ideas. The
court concluded that banning support for or affiliation with the myriad of
organizations and institutions that include weapons (displayed in a
nonviolent and non-threatening manner) in their insignia can hardly be
deemed reasonably related to the maintenance of a safe or distraction-free
school. The court determined
that the dress code in its present form excluded a broad range and scope
of symbols, images, and political messages that are entirely legitimate
and even laudatory. Accordingly,
the Fourth Circuit determined that the school’s dress code was
unconstitutionally overbroad. Even though the Fourth Circuit ruled in the
student’s favor on these particular facts, it also recognized the need
for school officials to prescribe and control conduct in the schools.
Accordingly, school districts should review their dress codes to
ensure that they are justified under each school’s unique circumstances
and appropriately tailored to meet the needs of a safe, secure, and
non-threatening learning environment.
McKinney-Vento Homeless Assistance
Act The McKinney-Vento Program for Homeless Students was
originally authorized in 1987, and most recently reauthorized by the No
Child Left Behind Act of 2001. This
program is designed to address serious problems that homeless children and
youth face in enrolling, attending, and succeeding in school. When this program was reauthorized as part of the No Child
Left Behind Act, several important changes, discussed below, were made. Initially, the definition of “homelessness” has
been broadened to specifically include children and youth who are:
sharing the housing of others due to a loss of housing or economic
hardship; living in motels, hotels, trailer parks or campgrounds due to
the lack of alternate adequate accommodations; staying in shelters;
sleeping in cars, parks, abandoned buildings, substandard housing,
bus/train stations or public places; or awaiting foster care placement.
42 U.S.C. § 11434A. (The
legislation does not specifically define “trailer park”; presumably,
however, this does not include mobile homes in permanent, fixed locations
that families own or rent in a manner similar to an apartment.)
Second, the revised legislation expressly prohibits a district or
school from separating homeless students from the mainstream school
environment. In fact, school districts are required to keep students in
their school of origin, if at all possible, unless doing so would be
against the wishes of the parents or guardians.
Further, school districts must now ensure that homeless students
are provided transportation at the request of parents or guardians to and
from the school they attended prior to becoming homeless. Third, homeless students must be enrolled in a school
immediately, even if they are unable to provide the records normally
required by traditional students for enrollment.
Finally, school districts must designate a local liaison for
homeless students to serve as one of the primary contacts between homeless
families and district personnel. School districts should review their admissions and
attendance policies to ensure they are in compliance with the reauthorized
McKinney-Vento Program for Homeless Students.
Additionally, school districts should review their transportation
programs and capabilities to ensure that they are able to provide
transportation for homeless students, should the need arise. On-Call Time – Compensable Under
the FLSA? In light of the overtime compensation lawsuits
currently pending against 25 South Carolina school districts and the
self-audits being conducted by most districts in the state, we have
received numerous inquiries about how time that classified employees spend
“on-call” and ready to respond to after-hours alarms and other
emergencies should be treated under the Fair Labor Standards Act (“FLSA”).
The FLSA requires employers to pay employees for any “compensable
time” during which an employee is performing services on behalf of the
employer. Likewise, any
compensable time must be counted each week to determine whether an
employee has exceeded the 40-hour threshold, after which the employee
would be entitled to overtime or compensatory time under the FLSA.
Under the regulations adopted by the U.S. Department of Labor (“DOL”)
and court decisions interpreting those regulations, whether time that an
employee spends “on-call” and not actively performing services for the
employer should be counted as compensable time depends on several factors:
School districts should consider implementing a
written policy or procedure that clearly expresses their expectations of
employees who are on-call and that is drafted to take these factors into
account. Otherwise, on-call
employees may be accruing significant amounts of compensable time that
will have to be factored into their compensation, and the school district
may be creating unnecessary exposure to liability for unpaid overtime for
on-call workers. School districts are required to address complex
leave issues pursuant to the Family and Medical Leave Act (“FMLA”) on
an almost daily basis. In
fact, leave issues are among the most challenging situations that the
human resources staffs of school districts are required to handle.
Full-time employees who meet certain eligibility requirements are
entitled to 12 weeks of unpaid FMLA leave annually, which requires school
districts to balance the often competing needs of their employees with the
needs of the school system. Although each FMLA leave situation is unique and
requires specialized attention and consideration, the following reminders
will help school districts ensure that their practices comply with the
FMLA requirements.
We are very pleased to announce that Thomas K. Barlow
has become a shareholder with Childs & Halligan, P.A.. The SCHOOL LAW NEWSLETTER is published twice yearly
by Childs & Halligan, P.A., P.O. Box 11367, Columbia, SC
29211, (803) 254 4035, and is designed only to give general
information on the developments actually covered.
It is not intended to be a comprehensive summary of recent
developments in the law, to treat exhaustively the subjects covered, or to
provide legal advice or render a legal opinion. Copyright © 2007 by Childs & Halligan, P.A. All rights reserved. You may reproduce materials available at this site for your own personal use and for non-commercial distribution. All copies must include this copyright statement.
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