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School
Law News IN THIS ISSUE:
Contract and Policy Issues In Light of the TERI Retirement Program In
2000, the General Assembly authorized the creation of the Teacher and
Employee Retirement Incentive (TERI) program, which allows State
employees to continue their employment with a covered employer, yet
“retire” with the South Carolina Retirement System.
While in the program, the employees’ retirement benefits are
deferred, and the employees continue to earn their full salary.
Upon exiting the TERI program, the participants receive the full
balance of their accrued retirement benefits. Based
on the limitations contained in the TERI program, employees may only
participate in the program for a maximum of five years.
Thus, employees must terminate employment at the end of
their five-year period. Any subsequent employment with a covered employer is subject
to the earnings limitation and requires a break in service.
However, the decision to re-employ a TERI employee whose
five-year period has expired is within the sole discretion of the
employer. The
TERI program became effective January 1, 2001.
Thus, any employee who entered the program at its inception must
exit the TERI program on or before January 1, 2006.
This exit date, which falls in the middle of the school year,
will necessitate school districts developing new methods of issuing
contracts and filling mid-year vacancies.
Specifically, although Continuing Contract teachers are generally
guaranteed employment for a full school year, TERI teachers may not
remain in the employ of a school district without a break in service
after the expiration of their TERI participation.
Because these teachers may not contract for covered employment in
violation of State law, school districts should issue teachers contracts
that expire on the date their TERI eligibility terminates.
In other words, a teacher might be issued a Continuing Contract
for the period July 1, 2005, through December 31, 2005, as opposed to a
typical contract for the 2005-06 school year. We
recommend that school districts confirm in writing to affected employees
that their contracts expire on the date their five-year eligibility for
participation in TERI expires. We
have previously provided superintendents and personnel directors with a
sample letter to employees to accomplish this task. Finally,
in light of the number of positions that likely will be vacated during
the 2005-06 school year, we recommend that school districts consider
revising their policies, if necessary, to eliminate the requirement that
all vacancies must be advertised. By
way of explanation, if such a requirement is contained in policy, it
will be difficult to fill mid-year vacancies without significant
disruption to school operations and instruction.
We have previously provided superintendents and personnel
directors with sample policy language regarding this issue. School districts will be faced with a variety of contract and personnel issues related to employees participating in the TERI program in the coming months. We will be glad to provide individual assistance to our clients to ensure compliance with the numerous requirements. Individuals With Disabilities Education Act Reauthorized On
December 3, 2004, President Bush signed into law the long-awaited
reauthorization of the Individuals with Disabilities Education Act
(IDEA), the federal law that conditions funding to states for special
education on compliance with the law and its regulations.
The reauthorized IDEA requires changes, which will force school
boards and administrators to sort through very complex issues.
Although some of these issues will only be apparent once the
United States Department of Education, as well as the State
Board of Education, develop new regulations and procedures to put into
action the changes Congress requires, we have attempted to predict the
specific requirements that will affect our client districts most directly.
Although we have provided, and will continue to provide, detailed
information to special education directors, below are the highlights of
the reauthorized version of the IDEA. Ø
Hearings: IDEA now limits the time
in which a parent can request a hearing and also limits the issues
addressed in the hearings. Parents
or agencies must request a due process hearing within two years from the
time they “knew or should have known about the alleged action that forms
the basis of the complaint,” or if the State has a time limitation for
requesting a hearing, the State’s time limit applies.
Also, IDEA limits hearings to the issues actually identified in the
complaint. Hearing officers
must base decisions on whether the child received a free and appropriate
public education and will only consider errors in procedure if the errors
prevented the child from receiving a free and appropriate public education
required by the Individualized Education Plan (IEP). Ø
Resolution Sessions: Unless
the district and parents use mediation or sign a written waiver, the IDEA
now requires that the parents meet with relevant members of the child’s
IEP team to try to resolve the complaint and develop a binding, written
settlement before one of the parties initiates a formal hearing. Ø
Hearing Officers: Hearing officers still may
not be employed by the child’s district or a state agency and now may
not have any “personal and professional interest that conflicts with the
person’s objectivity in the hearing.”
Hearing officers must have knowledge of the appropriate, standard
legal practice and the knowledge and ability to understand IDEA.
Ø
Attorneys’ Fees: The IDEA now authorizes
school districts that prevail in hearings and litigation to collect
attorneys’ fees if a parent or parent’s attorney files a complaint or
lawsuit for an improper reason or if the parent’s attorney files or
pursues a complaint or lawsuit that is frivolous, unreasonable, or without
foundation. Ø
IEPs:
School employees may use conference calls or video conferencing to
participate in IEP meetings. With parental agreement, the IEP team may excuse a member of
the team from attending an IEP meeting.
Also with parental agreement, the team may modify an IEP without
holding a meeting. Ø
Evaluations: The IDEA now prohibits
states from requiring districts to use an analysis of the discrepancy
between a child’s IQ and achievement to identify the child as having a
specific learning disability. Districts
may use a “response-to-intervention” model to identify specific
learning disabilities. Ø
Funding Issues: Congress has neglected to
appropriate the necessary funding but did increase funding levels.
Districts may use up to 15% of their Part B funding to develop and
implement early intervening services.
States may require districts to use the maximum allowable amount if
they over-identify ethnic and racial minorities as disabled. Ø
Discipline: IDEA now allows schools to
move a child to an “interim alternative educational setting” not only
for a conduct violation involving drugs or weapons, but also where the
child has inflicted serious bodily injury upon another person. Further, when a parent or district requests a hearing to
appeal a decision about placement or the relationship of the behavior with
the child’s disability, the child may remain in the interim alternative
educational setting. The
hearing to review the child’s case must be expedited. Ø
Teacher Quality: The IDEA specifies the
standards special education teachers must meet to be considered “highly
qualified” as the term is used in No Child Left Behind.
Ø
State
Enforcement: Monitoring priorities for the states include:
provision of free and appropriate public education, state
supervision, and the disproportionate identification of minority groups as
disabled. States must develop
performance plans to show how they will meet IDEA requirements.
Thus, districts will likely have additional requirements imposed by
the State. This summary highlights only a few of the changes the reauthorized IDEA will bring. We will continue to monitor and advise districts as new developments occur and assist districts with the practical implications of the new law. New
Law Expands the Rights of Employees on Leave for Military Duty The
Veterans Improvement Act of 2004 (VIA) amended the Uniformed Services
Employment and Reemployment Rights Act (USERRA), expanding the rights of
employees on leave for military duty.
Initially,
the VIA increased from 18 months to 24 months the maximum amount of time
an employee on military leave may continue to receive the same health
insurance coverage he enjoyed as an active employee. Additionally,
the VIA prohibits employers from charging employees on military leave for
fewer than 31 days more than the regular employee contribution in order to
maintain their health insurance. If, however, an employee is on leave for
31 days or more, an employer may charge the employee up to 102% of the
full insurance premium, or 102% of the employee and employer portions of
the premium. Finally, effective March 10, 2005, employers must post a notice informing employees of their rights under USERRA. The notice will be provided by the U.S. Secretary of Labor and must be posted in the same location as other similar notices. Schools Must Present Programs Regarding the U.S. Constitution Each September 17th On
December 8, 2004, President Bush signed legislation that requires every
educational institution in the U.S. receiving federal funding - from the
elementary level through the college level - to present an annual program
teaching students about the U.S. Constitution.
This instruction must take place each September 17th, the
anniversary of the signing of the Constitution in 1787. The
U.S. Department of Education is expected to issue guidelines implementing
this legislation in the near future. Although it is still uncertain what
form this instruction must take, it has been suggested that schools may
satisfy this requirement by holding an assembly for the entire student
body or may choose to provide appropriate instruction in individual
classrooms. Presumably, the
Department’s guidelines will provide alternative options if September 17th
falls on Saturday, Sunday, or a school holiday. While the legislation has generated some controversy on the basis that the federal government should not dictate curriculum requirements, we believe school districts should proceed to develop programs and activities to meet the requirements of this statute. Fourth Circuit Clarifies Parental Notification Requirements In
Wofford v. Evans, 390 F.3d 318 (4th Cir. 2004), the United States
Court of Appeals for the Fourth Circuit held that a student’s
constitutional rights to due process and against unlawful search and
seizure were not violated when elementary school employees, without
providing parental notification, twice questioned a student regarding her
alleged gun possession. In
doing so, the Court expressly declined to mandate that schools notify
parents before initiating investigations into allegations of student
misconduct. The Court acknowledged that schools are granted latitude in
their efforts to maintain a safe learning environment, in this instance
focusing on the serious threat gun possession poses to school safety. In
the Wofford case, the school’s assistant principal first became
suspicious of the student after several of the ten-year-old’s classmates
reported that she had brought a gun to school.
The assistant principal immediately questioned the student,
ultimately allowing her to ride the bus home after she allowed the
assistant principal to search her book bag and desk.
However, on the following school day, the assistant principal and
the principal investigated the allegations further.
During this follow-up investigation, one of the girl’s classmates
reported that he saw her throw the handgun into the woods next to the
school. The principal
immediately removed the student from class and asked her additional
questions. At this point, the
administrators denied the student’s request for her mother and instead
summoned the police to the school. Three
officers quickly arrived at the school and began investigating the
incident, which involved further questioning of the girl in the presence
of the administrators. While
with the police, the student requested her mother several more times but
was not allowed to contact her. Unable
to confirm the allegations or locate the gun on school premises, the
police officers ceased their investigation and contacted the mother to
inform her of the allegations on their way to the police station. In
its decision, the Court listed several reasons why it would not require
parental notification in situations like the one presented.
First, school officials are in the best position to respond to the
disciplinary and safety needs of a school as they arise and also must be
able to implement the most effective means to respond to these needs.
Second, school officials already face liability for inaction in
many circumstances, and creating additional liability for proactive
responses would cause confusion regarding the appropriate measures to take
in a given situation. Third,
mandating parental notification would only open the door to a host of new
questions regarding the proper procedures for notification.
Finally, the Court noted that it should refrain from hindering the
ability of those directly affected by school policies and actions to shape
those policies and actions through representative government. While
the Court’s deference to school officials is certainly a welcome
affirmation of the discretion vested in school officials, administrators
should take steps to ensure that they do not arbitrarily ignore their
students’ constitutional rights. Further,
even when an official has reason to believe that misconduct has occurred,
school officials must ensure that any subsequent investigation be related
to the threat imposed. Also,
the decision to notify or not notify parents of an ongoing investigation
should be made on a case-by-case basis.
Although the better practice generally is to notify parents of an ongoing investigation when requested to do so by a student, in light of this recent decision, school officials may rest easier knowing that notification is not required in all cases. Consultation among school administrators, district office personnel, and legal counsel during such situations is advisable. Boy Scouts of America Equal Access Act Based
on the recently enacted Boy Scouts of America Equal Access Act, all
public school districts that allow any outside groups to meet on school
grounds or use school facilities before or after school must also permit
the Boy Scouts of America and other patriotic youth groups to use school
grounds and facilities. Based
on proposed regulations, school districts will be required to permit the
scouts to use school-related means of communication, such as bulletin
boards and public announcement systems, if they grant other groups access
to these means of communication. Additionally, school districts will be
required to grant the scouts access to student directory information for
recruitment purposes. Finally,
also based on the proposed regulations, although school districts may
charge the scouts fees for facility usage, the fees must be equal to or
less than the lowest fees the district charges any other group. School
districts retain the discretion to not open their facilities to outside
organizations. Based on these
proposed regulations, however, if a school district determines that it is
appropriate to allow outside organizations to use its facilities, the
district will be required to permit the scouts to use its facilities and
grant them the most favorable terms and conditions. Accordingly, in administering and developing facility use policies for community groups, school districts need to be cognizant of the impact of the new proposed regulations. In
August 2004, the Schools and Libraries Division of the Universal Service
Administrative Company (USAC) placed a moratorium on all new funding
requests under the E-Rate program, which provides money to school
districts and libraries for internet installation and usage.
As a result, many school districts faced the prospect of covering
this unexpected shortfall by shifting funds from other sources or simply
delaying payment to their service providers. Fortunately,
limited funding for new E-Rate applications finally resumed in November
with $23.4 million promised to 198 applicants, though not before over
4,000 requests with a total value of over $400 million were received.
Based on newly-enacted federal accounting requirements, even though
funding resumed in November, schools were notified that they could still
expect to face significant delays in funding authorization while USAC
collected the necessary funds. On December 23, 2004, President Bush signed into law House Bill 5419, which, in part, grants the USAC a one-year exemption from complying with the accounting requirements and will allow the USAC to promptly process the pending applications. Thus, E-Rate funds appear to be secure at the present time, although delays in funding may arise again if the USAC is forced to comply with the federal accounting requirements in future years.
The SCHOOL LAW NEWSLETTER is published twice yearly by Childs & Halligan, P.A., 900 The Tower at 1301 Gervais Street, 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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