The Expanding Role of the Federal Government in Education ...

© 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?


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


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


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 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


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


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


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


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


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


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.


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.


What comes next?

•Where will we see changes?• IDEA Reauthorization• OCR• OSEP• Title I• Funding• “School Choice”• And …………

The Expanding Role of the Federal Government in Education ...

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