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Education Legislation Summary 2016

books and apple on retro background with Instagram Style FilterIn its 2016 regular and special sessions, the General Assembly made a number of changes in the statutes that affect public education in Connecticut. This summary is intended to give you a brief overview of some of the more significant changes that were made this year in the area of education.

Click to download our 2016 Education Legislation Summary.

Export Licenses vs. Anti-discrimination: Hiring Non-U.S. Persons at Colleges and Universities

On the path to CollegeImagine your institution has employed a graduate student to support a technology research program.  The student is a citizen of the People’s Republic of China and holds a student visa, but is not authorized to view certain export-controlled technical data.  Unclear of the restrictions in place, other researchers in your department provide the foreign student with technical data related to a military research project in the course of the student’s work.  As highlighted in the conviction and sentencing of University of Tennessee Professor John Reece Roth, realistic scenarios like this can result in substantial penalties with the U.S. State Department, and possibly jail time if determined to rise to the level of criminal conduct.

It appears that a university policy to screen out foreign candidates for certain research positions of sensitive nature would have prevented this violation and penalty, but an educational institution also faces the challenge of avoiding discrimination in its hiring practices.  Is this a lose-lose scenario?  Not quite, but institutions must pay close attention to recent guidance and regulatory revisions to understand their compliance obligations.

On March 31, 2016, the U.S. Department of Justice Office of Special Counsel for Immigration-Related Unfair Employment Practices (the “OSC”) released its most recent guidance to employers to aid them in navigating the murky waters where export regulations meet immigration antidiscrimination regulations.

These two regulated areas may contradict each other when it comes to the hiring practices of U.S. companies soliciting candidates for a position where the job duties impose compliance with export control laws.  Unfortunately, the limited governmental guidance confounds some employers when it comes to complying with both sets of regulations in certain scenarios.  The OSC’s recent guidance and, effective September 1, 2016, definitional changes within the export control laws, affecting the definition of “fundamental research,” do provide some general direction for employers.

Please continue reading how these issues and recent amendments affect industry and academia alike: Compliance Conundrum — Unauthorized Exports v. Discrimination: Find a Win in a Lose-Lose Scenario.

Teacher Retirement Board Issues Revised Guidelines for the Reemployment of Retired Teachers

On June 29, 2016, the Teacher Retirement Board (“TRB”) issued new guidance concerning the reemployment of retired teachers. One of the new and significant guidelines for post-retirement employment concerned the application of federal rules to qualified pension plans. Specifically, TRB issued guidelines to define and avoid “sham” retirements. Beginning in July 2016, TRB required teachers who began receiving their TRB pension payments before normal TRB retirement (20 years of service and age 60 or 35 years of service) or before turning the age of 62 to have at least a six month break in service before going back to work as a teacher. Failure to do so will mean that the teacher will have his/her pension suspended and any duplicate compensation will be reimbursed to TRB.

The guidelines issued in June specifically noted that the above-referenced six month waiting period was applicable when a teacher was seeking to return to work for the same school district from which he/she had been working for at the time of his/her retirement. With the reissuance of these guidelines from TRB last week, TRB’s guidance concerning the reemployment of retired teachers has changed. The revised TRB guidance now requires a six month break in service before a retired teacher, who has retired before age 62 or normal retirement, can be reemployed by any Connecticut school district.

Before a retired teacher who is under the age of 62 and did not achieve a normal retirement can be reemployed, the retired teacher must meet all of the following three conditions: (1) a six month break in service; (2) there must not be a prearranged understanding or agreement to return to work for the employer-school district; and (3) the superintendent of the employing school district must attest to the absence of any prearranged understanding or agreement between the school district and the retired teacher.

For the reemployment of a retired superintendent the third requirement is modified so that an officer of the board of education must provide TRB with a certification of the absence of a prearranged understanding or agreement to return to work between the employing board and the retired superintendent.

Finally, TRB has decided that this guidance is to be applied retroactively. In other words, if a teacher retired before normal retirement and was reemployed by a school district without a six month break in service, then there must be six month break in service beginning now, without a prior arrangement to reemploy the retired teacher in six months. Given that many school districts utilize retired teachers, either in a shortage area or under the 45% rule, these school districts must determine if any of these reemployed retired teachers are now subject to the TRB requirement of a six month break in service, regardless of when and where the retired teacher was previously employed.

Student Assistants are now Considered Statutory Employees under the NLRA

Happy student in the classroomIn its 2004 Brown University decision, the National Labor Relations Board (NLRB) held that graduate student teaching assistants were not employees because they were “primarily students” and their relationship with the University was educational rather than economic in nature.  On August 23, 2016, the NLRB reversed course in its Columbia University decision and held that  the unequivocal policy of the National Labor Relations Act is to “encourag[e] the practice and procedure of collective bargaining” and to “protect[ ] the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing.”  Given this policy, coupled with the very broad statutory definitions of both “employee” and “employer,” the Board determined that it is appropriate to extend statutory coverage to students working for universities covered by the Act unless there are strong reasons not to do so.  The Board was not persuaded by the Brown University Board’s self-described “fundamental belief that the imposition of collective bargaining on graduate students would improperly intrude into the educational process and would be inconsistent with the purposes and policies of the Act.”  According to the Board in the Columbia University case, “[t]his ‘fundamental belief’ is unsupported by legal authority, by empirical evidence, or by the Board’s actual experience.  Thus, we hold today that student assistants who have a common-law employment relationship with their university are statutory employees under the Act.”

Although the Board did state that there may be “strong reasons” not to extend the protection of the Act to students working for universities, it did not specify what those reasons might be.   The Board did, however, reject Columbia’s arguments against recognizing their student workers as employees under the Act as detrimental to the pursuit of the school’s educational goals.  The Board did not find compelling Columbia’s claims that collective bargaining leads to strikes, grievances over classroom assignments and eligibility criteria for assistantships.  According to the Board,  “labor disputes are a fact of economic life—and the Act is intended to address them.”

Importantly, in the Columbia University  decision,  the Board determined that a bargaining unit consisting of graduate and undergraduate teaching assistants is an appropriate unit for unionization.  In other words, the Board determined that undergraduate teaching assistants fell within the broad definition of “employee” under the Act and in this case had a common-law employment relationship with the University.  This determination greatly expands the potential “employees” at any private university that may now have the protection of the Act whether they unionize or not.

Perhaps referring back to its recent decision to decline jurisdiction over the grant-in-aid scholarship football players at Northwestern University, the Board did state, “[w]e do not hold that the Board is required to find workers to be statutory employees whenever they are common-law employees, but only that the Board may and should find here that student assistants are statutory employees.”

Register Now for 2016 Education Legislative Updates

In its 2016 regular and special sessions, the General Assembly made a number of changes in the statutes that affect public education in Connecticut. This workshop is intended to give you an overview of some of the changes that were made in the area of education this year.

Workshop topics will include new guidance and/or changes regarding the following:

  • Student Data Privacy
  • Expulsion Hearing Procedures and Alternative Educational Opportunities for Expelled Students
  • Cancer Awareness Instruction
  • Sexual Abuse and Assault Awareness and Prevention Program
  • Graduation Requirements
  • Truancy and FWSN
  • Background and Employment Checks for School Employees
  • Plus Additional Topics

We look forward to seeing you at this complimentary seminar.

*Please contact us in advance at info@goodwin.com if there will be more than 4 attendees from your district.

HARTFORD SESSION:
When: September 20, 2016 from 8:00 AM – 10:30 AM
Where: Hartford Marriott Downtown, 200 Columbus Blvd, Hartford, CT
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STAMFORD SESSION:
When: September 22, 2016 from 9:45 AM – 12:00 PM
Where: Shipman & Goodwin, Stamford Office, 300 Atlantic Street, 3rd Floor, Stamford, CT 06901
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FCC Issues Declaratory Ruling that School Districts May Make “Robocalls” Without Violating Telephone Consumer Protection Act

The male hand holding a phoneThe Federal Communications Commission (“FCC”) recently issued a declaratory ruling confirming “that school callers may lawfully make robocalls and send automated texts to student family wireless phones pursuant to an ‘emergency purpose’ exception or with prior express consent without violating the Telephone Consumer Protection Act (“TCPA”).” This ruling was in response to a petition filed by Blackboard, Inc. regarding the treatment of certain types of non-telemarketing, informational “robocalls” under the TCPA.

In 1991, Congress passed the TCPA to address certain calling practices that invade privacy and threaten public safety.  The TCPA prohibits making telemarketing calls using an artificial and prerecorded voice to residential telephones without prior consent and making any non-emergency call using an automatic telephone dialing system without prior consent.

Blackboard, Inc. provides an interactive web portal available to its educational customers that allows each school to draft informational messages and distribute them to its student families via the use of automated calls. The FCC issued its declaratory ruling in response to Blackboard’s petition to distinguish automated calls sent by schools using its system from the prohibitions on telemarketing calls.

The FCC’s ruling addressed both emergency and non-emergency calls. It ruled that school callers may lawfully make autodialed calls and send automated texts to student family wireless phones without consent for emergencies, including weather closures, fire, health risks, threats and unexcused absences. It confirmed that such calls were made necessary by situations affecting the health and safety of students and faculty. The FCC stated that although prior express consent is not required for emergency calls, it encouraged schools to regularly update their emergency calling lists to ensure that emergency-type calls reach the parent or guardian of the affected student and are not received by individuals with no connection to the school.

The FCC declined to extend the TCPA emergency-purpose exception to all robocalls made by school callers. Non-emergency calls, however, are permissible under the TCPA. Although the scope of consent given by a parent/guardian can vary, the FCC ruled that “when a parent/guardian or student provides only their wireless number as a contact to a school, the scope of consent includes communications from the school closely related to the educational mission of the school or to official school activities absent instructions to the contrary from the party who provides the phone number.” In the view of the FCC, a parent or student who provides their wireless number to a school as a contact has “given permission to be called at that number for [school] purposes.”

As for calls about non-school or community events, “if such calls lacked any educational purpose or connection to official school activities, it would likely fall outside the scope of consent when the parent or student has only provided a number to the school without disclosure that they may receive such calls.” Accordingly, the FCC ruling encourages schools to “disclose the full range of all potential calls and messages that a parent/guardian or student should expect to receive when requesting consent from parents/guardians and students.” Finally, school officials must be aware that parents and students have the right to revoke prior consent and should be prepared to honor revocations for parent/guardians and students who no longer wish to receive non-emergency calls and texts from the school.

Office for Civil Rights Issues New Dear Colleague Letter Regarding ADHD

School desks in a ClassroomThe Office for Civil Rights (OCR) issued another Dear Colleague Letter (DCL) on July 26, 2016 regarding the obligation of school districts to students with Attention Deficit Hyperactivity Disorder (ADHD) under Section 504 of the Rehabilitation Act of 1973 (Section 504).  How’s that for a lot of acronyms in one sentence?

This DCL is notable for its inclusion of a 32-page Guide (Students with ADHD and Section 504: A Resource Guide) reviewing step-by-step how school districts should identify, evaluate, and make program and placement determinations for students with ADHD.  The DCL emphasizes the disproportionately large number of complaints OCR has received over the past five years involving allegations of discrimination against students with ADHD.  Within those complaints, OCR’s primary areas of continuing concern are:

  • Failure of students to be referred for evaluation,
  • Failure to evaluate or evaluate adequately,
  • Inappropriate decisions about the aids, services and settings required to appropriately educate the student,
  • Failure to educate staff about the student’s needs, and
  • Inappropriate consideration of administrative and financial burdens in selecting and providing appropriate aids and services to identified students.

Thus, the DCL and its accompanying Guide provide specific reminders and instruction on how districts should proceed through the 504 process, particularly for students with ADHD, although the procedures set forth are applicable to students with other disabilities as well.  OCR makes clear in the Guide that in its investigations, it presumes that a student with a diagnosis of ADHD is substantially limited in one or more major life activities and thus qualified as a student with a disability entitled to protection under Section 504.  OCR emphasizes particular procedural points and frequent downfalls by districts in their handling of students with ADHD.  While we recommend a thorough review of this Guide, here are some key points to remember.

  • Teachers and appropriate staff must be aware of and have access to a student’s 504 plan.  Plans should be written with enough specificity to so that teachers are clear about, and the parties can agree on, what the plan requires.
  • Do not rely upon a student’s grades to determine that a student does not qualify for accommodations under Section 504.
  • If a district has any reason to suspect that a student has a disability, it should not insist on first implementing tiered interventions before conducting an evaluation.  Intervention and evaluation can be done concurrently.
  • The definition of disability should be broadly construed and the determination of whether an individual has a disability should not demand extensive analysis.
  • A district cannot consider any ameliorative effects of medication, or any other mitigating measure, when evaluating whether a student is substantially limited in a major life activity.
  • Districts cannot require that a parent provide certain data or information, including a medical assessment, before conducting an evaluation.
  • If a student has a disability, but does not require any accommodations or services, the student is still a person with a disability protected under Section 504.
  • An identified Section 504 student must be provided with individual supports appropriate to their needs regardless of cost or administrative burden.
  • Section 504 due process procedures must be in place and directly communicated to parents with timely notice.

Both the DCL and the Guide are available at http://www.ed.gov/ocr.

Save the Date: New Themes in ADA Compliance for Colleges and Universities

College CampusPlease save the date and join Shipman & Goodwin on October 7, 2016 for an important legal update on ADA compliance for colleges and universities.

The program will begin with a general session featuring a conversation with representatives from the Department of Justice, U.S. Attorney’s Office, and the Educational Opportunities Civil Rights Working Group.  We will discuss the DOJ’s enforcement of the ADA and new initiatives related to higher education institutions.

The general session will be followed by two simultaneous breakout sessions focused on ADA accessibility issues for students and faculty/staff.

Seminar topics will include:

•  Department of Justice ADA enforcement initiatives in educational institutions
•  Construction and building accessibility
•  Online accessibility
•  Reasonable accommodations
•  Service animals
•  Role of the Ombuds
•  Best practices

This program is applicable to colleges and universities in Connecticut, Massachusetts, Rhode Island and New York.

Who should attend: Presidents, General Counsels, Human Resources Personnel, ADA Coordinators, Disability Resources/Services Directors, Deans of Faculty, Provosts, Ombuds, Deans of Student Life, Deans of Student Activities, and Diversity Officers/Directors.

When:  10/07/2016, 8:00 AM – 1:00 PM
Where:  University of Hartford, Hartford, CT

We hope you can join us for this complimentary seminar.  A formal invitation with registration and session information will follow.  

CAS Legal Mailbag Question of the Week – 8/5/16

Originally appeared in the CAS Weekly NewsBlast. Written by Attorney Thomas B. Mooney.

Dear Legal Mailbag:

legal_mailbag_transparentThis is my 20th year in education. When I first started teaching, my administrators told me that a principal or administrator had to be present at every PPT. Later, I became a principal, and my special education director told me that the law had changed and principals or other administrator did not need to be present, but rather someone designated by the principal could properly run the meeting. However, he emphasized the importance of principals being present when possible to build trust with families, and he advised me that principals should always present at the more high-level meetings that may also include a central office representative.

I now work in a magnet school, and the district is again telling me that principals or other administrators should be present at all PPTs. Moreover, administrative interns are also saying that Shipman & Goodman representatives at their classes have also told them that a principal or other administrator needs to attend every PPT. However, when I went on-line to be sure I had the most updated information, the Shipman & Goodman PowerPoint I found seems to indicate a district designee is all that is necessary. What is the right answer? Under Connecticut law, does a principal and/or a person possessing an 092 have to be present at every PPT or can it be a designee?

Signed,
Seeking Truth

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Effective July 1, 2016, School Districts Subject to New Requirements for Employee Background Checks

Smiling woman having job interviews and receiving portfolios

Previously, Conn. Gen. Stat. § 10-222c merely required school districts to make a documented good faith effort to contact previous employers of applicants to obtain “information and recommendations which may be relevant to the [applicant’s] fitness for employment” before hiring that applicant.  As of July 1, 2016, however, local and regional boards of education, charter school governing councils, and interdistrict magnet school operators (collectively, “school districts”) are required to implement additional, more extensive background check procedures when hiring any applicant for employment in a position that would involve direct contact with students, including contracted positions.  These new requirements are imposed by Section 2 of Public Act 16-67, which amended Conn. Gen. Stat. § 10-222c.

As described more fully below, the new background check procedures imposed by Public Act 16-67 require schools districts to request specific information from an applicant, from the applicant’s prior employers, and from the State Department of Education before hiring an applicant for a permanent position involving direct student contact.  The new procedures further require that current and former employers respond to requests for information pursuant to the statute within a specified timeframe.  Moreover, Public Act 16-67 permits school districts to hire an applicant for a position involving direct student contact on a temporary basis only, pending successful completion of the new background check process and review of the applicant’s employment history.

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No Good Deed Goes Unpunished: Past Practice as a Trap for the Unwary

Sick woman blowing nose, sitting by the table, working at home office, drinking tea and eating citrus fruit while working. Directly above shot

No good deed goes unpunished, or so the old saying goes. And employers who are unaware of the concept of “past practice” soon learn the meaning of this expression. Recently a Connecticut Superior Court decision, which upheld the decision of the State Board of Labor Relations, affirmed how a past practice on the part of an employer can create a non-bargained benefit for its employees.

A Teachers’ Union filed a complaint with the State Board of Labor Relations after a teacher’s request for use of sick days from a “sick bank” was denied. The Union claimed a unilateral change to a mandatory subject of bargaining in violation of the Teacher Negotiation Act. Specifically, the Labor Board found that the practice of donated sick leave to a sick bank and the ability of a teacher to use this time upon exhaustion of their own sick leave was a benefit that had been established by past practice, despite the fact that the collective bargaining agreement contained no reference to a sick bank. In response, the Board of Education appealed the decision of the Labor Board.

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