Presidential Proclamation Outlines Rules for New Travel Ban

On September 24, 2017, the Trump administration issued a proclamation that imposes new travel restrictions on foreign nationals seeking to enter the United States from eight countries: Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. The proclamation, entitled “Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry into the United States by Terrorists or Other Public Safety Threats,” was issued by President Trump following a worldwide review of information sharing practices between the U.S. and nearly 200 foreign nations to assess whether nationals of each country seeking to enter the United States pose a national security or public safety threat.  As a result, these eight countries were deemed to have inadequate identity management protocols, information sharing practices or risk factors. Additionally, while it was also determined that Iraq did not meet the baseline requirements, nationals of Iraq will not be subject to any outright ban on travel, but will be subject to additional screening measures.

Though exceptions and waivers are allowed in certain circumstances, the following countries and conditions are included in President Trump’s new travel ban:

New countries:

  • Chad: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
  • North Korea: Suspends the entry of all immigrants and nonimmigrants.
  • Venezuela: Suspends the entry of certain government officials and their immediate family members on business or tourist visas (B-1/B-2).

Countries already impacted by the administration’s prior travel ban (EO 13780), which are also included in the President’s proclamation:

  • Iran: Suspends the entry of immigrants and all nonimmigrants, except F (student), M (vocational student) and J (exchange visitor) visas, though they will be subject to enhanced screening and vetting requirements.
  • Libya: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
  • Somalia: Suspends the entry of immigrants, and requires enhanced screening and vetting of all nonimmigrants.
  • Syria: Suspends the entry of all immigrants and nonimmigrants.
  • Yemen: Suspends the entry of immigrants and temporary visitors on business or tourist visas (B-1/B-2).
  • Iraq: Requires enhanced screening of all individuals seeking to enter the United States.

Travel restrictions for nationals of Sudan, who were impacted by earlier versions of the travel ban, have been lifted.

The new travel ban goes into effect on October 18, 2017, however, the ban is effective immediately for anyone whose entry to the U.S. was previously barred by the administration’s prior travel ban (EO 13780) (i.e., nationals of Iran, Libya, Somalia, Syria and Yemen who do not have a bona fide relationship with a person or entity in the United States).

Until October 18, 2017, citizens of Iran, Libya, Somalia, Syria, and Yemen are exempt from the new travel ban if they have a “bona fide relationship” with a U.S. person or entity.

The new travel ban does not impose new restrictions on refugees: however, there continues to be a 120-day halt on the entire refugee program. Refugees with a “bona fide relationship” with a U.S. person or entity are exempt from the ban. Per the U.S. Supreme Court’s September 12, 2017 order, a formal assurance from a refugee resettlement agency is insufficient on its own to establish a “bona fide relationship.”

Unlike the administration’s prior travel bans, these new country-specific travel bans are indefinite. While federal agencies must assess the bans every 180 days and recommend whether to continue, terminate or modify the bans, there is no automatic expiration date for the bans.  The DHS Secretary must affirmatively recommend ending them.

Private Schools Defeat Clawback Claim by Chapter 7 Trustee

Over the last few years, Chapter 7 Trustees have aggressively sought to clawback tuition payments made to colleges and universities by parents on behalf of their children after the parents filed for Chapter 7 bankruptcy.  These efforts have met with mixed success. [1]  Now, it appears that Chapter 7 Trustees are setting their sights on private secondary and elementary schools to clawback tuition payments.  However, in two recent opinions, the U.S. Bankruptcy Court for the Eastern District of New York has dismissed fraudulent transfer and unjust enrichments claims against private schools seeking to recover tuition payments made in the years before the debtor’s bankruptcy case.

In these cases, the debtor, Judith Michel, filed for Chapter 7 bankruptcy on July 4, 2014.  In the six years before she filed for bankruptcy, Ms. Michel made tuition payments to two private schools, Trey Whitfield School and Lawrence Woodmere Academy, on behalf of her two minor children in the total amount of $115,200.  The Chapter 7 Trustee appointed to her case later sued both schools to recover these tuition payments under three theories:  constructive fraudulent transfers under New York law and the Bankruptcy Code; unjust enrichment under New York law; and intentional fraudulent transfers under New York Law and the Bankruptcy Code. [2]  In response to these claims, the schools moved to dismiss the complaints.  On September 18, 2017, the Bankruptcy Court granted the motions to dismiss.

To establish a constructive fraudulent transfer under New York Law and the Bankruptcy Code, a trustee generally has to establish that the transfer was made at a time the transferor was insolvent (or the transfer would have rendered her insolvent) and the transferor did not receive reasonably equivalent value in exchange for the transfer.  Here, the Bankruptcy Court ruled that the Trustee’s constructive fraudulent transfer claim failed because he failed to allege that Ms. Michel did not receive reasonably equivalent value.  The Trustee argued that the satisfaction of Ms. Michel’s legal obligation to provide an education for her children was not reasonably equivalent value for the transfers because satisfying this obligation did not yield her a concrete economic benefit.  The Bankruptcy Court rejected this argument and held that Ms. Michel’s satisfaction of her obligation under New York law to educate her children, the failure of which could have subjected her to a loss of custody or other sanctions, provides sufficient value in this context.  Moreover, the Court rejected the Trustee’s argument that the transfers lacked value because this obligation could have been satisfied for free by sending the children to public school.  The Bankruptcy Court explained that a Trustee cannot scrutinize a debtor’s expenditures and seek to recover any expenditures that the Trustee concludes could have been achieved at a lower cost.

Turning to the unjust enrichment claim, the Bankruptcy Court observed that to succeed on such a claim, the Trustee had to allege that the schools unfairly benefited from receipt of the transfers.  The Bankruptcy Court held that the Trustee did not do so because he failed to allege that the transfers were anything other than ordinary tuition payments or that the schools did not provide an adequate education in exchange for the transfers.

Finally, the Bankruptcy Court rejected the Trustee’s intentional fraudulent transfer claim because the Trustee failed to allege adequately that Ms. Michel made these transfers with the intent to hinder, delay, or defraud her creditors.  The Court reasoned that the Trustee’s complaint had no allegations that Ms. Michel made these payments with an ulterior motive.  To the contrary, the Court noted that the allegations showed that the tuition payments conferred a tangible benefit on Ms. Michel by satisfying her legal obligation to educate her children.  The Court also held that the mere allegation that Ms. Michel had applied for financial aid from the schools did not show that she made the tuition payments with the intent of defrauding her creditors.

While this decision is a complete victory for the schools, the Trustee may still appeal it in the coming days.  Moreover, since it is not binding precedent, Chapter 7 Trustees may continue to press these types of clawback claims on the hope of reaching a quick settlement.  Schools should consult with counsel to determine the validity and risks that such claims pose, particularly, as this area of the law develops over time.

The cases are captioned Geltzer v. Lawrence Woodmere Academy, Adv. Pro. No. 16-01121-ess (Bankr. E.D.N.Y.) and Geltzer v. Trey Whitfield School, Adv. Pro. No. 16-01122-ess (Bankr. E.D.N.Y.).  The Bankruptcy Court’s decisions can be found here  and here.

[1] Compare DeGiacomo v. Sacred Heart Univ. Inc. (In re Palladino), Adv. No. 15-01126, 556 B.R. 10 (Bank. D. Mass. 2016) (rejecting fraudulent transfer claim to recover college tuition); with Gold v. Marquette Univ. (In Re Leonard), 454 B.R. 444 (Bankr. E.D. Mich. 2011) (holding that college tuition can be clawed back as fraudulent transfer). Notably, Connecticut recently amended its Fraudulent Transfer Act to exclude claims against colleges and universities to recover tuition paid by a parent or guardian of a child.  Conn. Gen. Stat. 52-552i(f).

[2] The fraudulent transfers claims were asserted under 11 U.S.C. §§ 544 and 548, as well as New York Debtor and Creditor Law §§ 273, 274, 275, and 278.

CAS Legal Mailbag Question of the Week – 9/26/2017

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

Dear Legal Mailbag:

Last year, I received a disturbing letter. It was anonymous and unsigned. But in typewriting, it read:

CAUTION! Tom Teacher is doing drugs. I think that you should watch him very carefully. I am glad that my children do not have him as a teacher. Tom is a danger to himself and others. Take care and beware!

As you can imagine, I didn’t quite know what to do about this anonymous letter, so I just put it in Tom’s file and moved on. To be sure, I did keep an eye out, but Tom seemed perfectly normal, so I didn’t see the need to involve the police or otherwise investigate the allegations.

Last week, Tom came in to review his personnel file and he was fit to be tied when he saw the anonymous letter. He demanded that I immediately remove the letter from his file and that I apologize for my “egregious misjudgment” in the first place. I don’t mind apologizing when I mess up, but I don’t think that an apology is warranted here, do you? Moreover, the letter specifically referred to Tom by name, and I can’t think of a better place to file it than in Tom’s personnel file. Besides, it is not Tom’s file; it is my file on Tom. Am I missing something?

Thank you,
File Happy

Dear Happy:

I leave to you whether you wish to apologize. But your handling of the anonymous letter did not show good judgment. Inclusion of documents in a teacher’s personnel file reflects a determination that the documents are relevant to that teacher’s employment. The anonymous letter here, however, is not relevant to the teacher’s employment because you have not investigated the allegations made by the anonymous writer, and you have made no finding of misconduct on Tom’s part. Accordingly, it was unfair to include the letter in, as you say, your file on Tom.

The handling of anonymous complaints presents challenges to school administrators. On the one hand, an anonymous complaint may simply reflect a cowardly and unfair attempt to retaliate against a teacher. On the other, some anonymous complaints may bring a problem to your attention. Therefore, Legal Mailbag has the following recommendations.

First, determine whether the anonymous complaint gives you enough facts to investigate. Here, the letter provides no facts to support the allegation that Tom is involved with drugs, and there isn’t really anything to investigate. An anonymous allegation, absent some other facts, does not provide reasonable cause to intrude into Tom’s privacy interests, such as requiring drug testing. However, even in such situations, you should keep your eyes open to see whether Tom’s conduct causes you any concerns, and then follow up on those concerns, rather than the anonymous complaint.

Second, if you are able to investigate because the anonymous complaint provides you specific information, do so discreetly. It is important not to propagate baseless allegations by repeating them in an investigation. Be circumspect as you decide whom to question and what you say.

Third, absent very specific allegations that can be easily investigated (e.g., “there is money missing from the student activity fund”), the best approach to an anonymous allegation is simply to keep your eyes open and decide whether any observable behaviors or other facts warrant further investigation.

Fourth, inform the subject (here, Tom Teacher) of the anonymous complaint unless you have decided to investigate and have a strategic reason to hold back on sharing the complaint. If someone had made an anonymous complaint about you, presumably you would want to know about it. Similarly, teachers and other employees are entitled to the same courtesy unless you need to withhold that information pending investigation (such as when an employee on notice could destroy evidence).

Finally, as noted above, an anonymous complaint should never be placed in the personnel file. Unless and until disciplinary action is warranted after investigation and imposed, such material has no place in a personnel file.

Featured Post

U.S. Department of Education Withdraws Prior Title IX Guidance and Issues Interim Guidance on Sexual Misconduct

College CampusLast Friday, in advance of the public rule-making process concerning schools’ Title IX responsibilities, the U.S. Department of Education rescinded its current Title IX guidance concerning sexual harassment and violence.  Particularly, the Department withdrew its Dear Colleague Letter dated April 4, 2011, and its Questions and Answers on Title IX Sexual Violence dated April 29, 2014.  To assist schools with understanding their obligations concerning investigation and adjudication of Title IX complaints, the Department issued interim guidance in the form of a questions and answers document.

Notably, the new guidance grants schools the discretion to apply a more stringent evidentiary standard—clear and convincing evidence standard—when investigating and/or adjudicating Title IX complaints.  However, the Department noted that the new guidance does not add requirements to Title IX or impact a complainant’s right to make a complaint.  Lastly, the Department made clear that schools may continue to rely on its Revised Sexual Harassment Guidance issued in January 2001 as well as its Dear Colleague Letter on Sexual Harassment issued on January 25, 2006.

We will continue to monitor the forthcoming public rule-making process for Title IX regulations, and provide timely updates of future developments to assist our school clients in complying with Title IX.

The full text to the interim guidance may be found here.

Firm Attorneys Published in Legal Resource for School Health Services

Attorneys in Shipman & Goodwin’s School Law and Health Law Practice Groups have written chapters for the Law/Policy section of the Legal Resource for School Health Services, a comprehensive reference that addresses legal implications of issues commonly faced by school nurses, school administrators, school boards and school attorneys.

School law attorneys Alyce L. Alfano, Melika S. Forbes and Laura A. Fisher wrote “Special Education Law: The Individuals with Disabilities Education Act (IDEA) and Section 504 of the Rehabilitation Act of 1973 (Section 504).” This chapter examines the roles and responsibilities of school nurses as members of IDEA and Section 504 teams.

School law attorney Gwen J. Zittoun and Health Law attorney William J. Roberts wrote “Family Educational Rights and Privacy Act (FERPA)/Health Insurance Portability and Accountability Act (HIPAA),” which discusses the maintenance of student confidentiality within the school environment.

In addition to the Law/Policy section, the book’s main sections are: School Nurse Practice Issues, Nursing Care, Nursing Coordination, Staff Services and Beyond the Public Schools Walls. Among the key topics covered are other federal laws, compliance, minor rights, medication administration, professional licensure and malpractice, school staff training, mental health, before- and after-school programs and private and independent schools.

The book is published by SchoolNurse.com; click here to order.

Webinar: Mandated Reporting in Connecticut – Understanding Legal Obligations and Best Practice

Join Shipman & Goodwin school law attorneys Julie C. Fay and Laura A. Fisher for this complimentary webinar for independent schools and public schools.

This program will explore obligations of school employees under Connecticut’s mandatory reporting law on child abuse and neglect. As this law continues to evolve, so do the responsibilities of teachers, administrators and other school employees to make timely reports of suspicions of abuse and neglect to appropriate authorities.

We will discuss scenarios that trigger reporting, including student to student issues, the mechanics of reporting and best practices for coordinating investigations by the Department of Children and Families, law enforcement and the school. As part of our discussion, this webinar will focus on frequent questions from educators on topics, such as the scope of anonymity, sharing information with parents, and how to respond to sexual misconduct between minors.

Space is limited. Please register to enroll in this course today.

When: October 3, 2017  4:00 PM – 5:00 PM EDT
Where: Webinar

 

CAS Legal Mailbag Question of the Week – 9/19/2017

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

Dear Legal Mailbag:

I was surprised to receive a letter the other day addressed to me as school principal with the Connecticut Department of Corrections as the return address. I opened the letter and read that it was from a man purporting to be the father of one of my second grade students. In the letter, which was rather well-written by the way, the fellow wrote to request copies of his daughter’s report card for each marking period this year. He explained that he has plenty of time on his hands these days, and he wants to pay closer attention to his daughter’s academic progress.

I called the girl’s mother, and she started in on me! “That creep,” she said. “I have been asking him for child support for four years, but he managed to get himself locked up for some stupid crime. I want to keep him out of our lives at this point.” I asked her if she had any court order so providing, but she just shrugged her shoulders. “Who can afford that?” she asked rhetorically. “I just don’t want him getting report cards or any other school records, OK?”

I don’t want to complicate this poor woman’s life any more than I have to. Can I just write back to this guy and tell him that he should contact me when he is released from prison?

Thank you,
Mum’s the Word

Dear Mum:

Not so fast. For years, the Connecticut statutes have given non-custodial parents the right of access to educational and other records concerning their children. Conn. Gen. Stat. § 46b-56(g) provides:

(g) A parent not granted custody of a minor child shall not be denied the right of access to the academic, medical, hospital or other health records of such minor child, unless otherwise ordered by the court for good cause shown.

In addition, Conn. Gen. Stat. § 10-15b(a) has also long provided that

Either parent or legal guardian of a minor student shall, upon written request to a local or regional board of education and within a reasonable time, be entitled to knowledge of and access to all educational, medical, or similar records maintained in such student’s cumulative record, except that no parent or legal guardian shall be entitled to information considered privileged under section 10-154a [the law providing for confidentiality of student communications with teachers or school nurses concerning alcohol or drug abuse].

Moreover, since 2006, Conn. Gen. Stat. § 10-15b(b) has also provided that the parent with whom a student does not primarily reside is entitled to receive “all school notices that are provided to the parent or legal guardian with whom the student primarily resides.” The school is obligated to provide such notices for as long as the student is enrolled in that school (and the other parent can renew the request if and when the student moves to a new school).

In the 2017 legislative session, the General Assembly added two further provisions to the statutes concerning access to school records. Apropos of your question, the General Assembly amended Section 10-15b(a) to clarify that incarcerated parents are entitled to receive school records of their children unless (1) they have been convicted of certain crimes of sexual assault, or (2) a court order prohibits access for such parent to the student’s cumulative record. Given this provision, your next letter should be back to the parent to ask for documentation of why he is serving time to assure that he was not convicted of a crime of sexual assault as listed in the amended statute. If he is not (and unless and until the mother obtains a court order providing otherwise), the incarcerated father is entitled to receive copies of his daughter’s report card.

Finally, in 2017 the General Assembly also amended Conn. Gen. Stat. § 10-253(f). Subsection (f) provides that school districts are obligated to provide education to homeless youth in accordance with the McKinney-Vento Homeless Assistance Act. Now, that subsection has been amended to provide further that an unaccompanied youth as defined in that Act, i.e. a homeless youth not in the physical custody of a parent or guardian, is also entitled to knowledge of and access to “educational, medical or similar records in the cumulative record of such unaccompanied youth maintained by a local or regional board of education.”

Thomas Mooney to Receive President’s Award from New England School Superintendents Assn

Thomas B. Mooney, Co-Chair of the firm’s School Law Practice Group, has been selected by the New England Association of School Superintendents (NEASS) to receive its prestigious President’s Award at the association’s 200th Annual Fall Conference.

Mr. Mooney is active in all areas of school law, including labor negotiations for certified and non-certified staff, teacher tenure proceedings, grievance arbitration, freedom of information hearings, student disciplinary matters, special education disputes and all other legal proceedings involving boards of education. He is the author of A Practical Guide to Connecticut School Law (8th Edition, 2014), a comprehensive treatise on Connecticut school law used by teachers, administrators and board of education members throughout the state.

In addition to his practice, Mr. Mooney has been an adjunct professor at the University of Connecticut School of Law since 1985, where he teaches Law and Public Education; he has also served as Professor in Residence at the University of Connecticut’s Neag School of Education since 2001. Throughout his career, Mr. Mooney has been recognized for his contributions to the field of school law by both legal and educational organizations. Most recently, he was named 2018 Lawyer of the Year in Hartford Education Law by The Best Lawyers in America©.

In celebration of the 200th anniversary of NEASS, the program for year’s Annual Fall Conference is entitled “The Challenges, Opportunities and Impact of the Superintendency in the Global Age.” Mr. Mooney will be presenting “Legal Issues and Challenges Facing Today’s and Tomorrow’s Superintendent,” where he will provide an overview of current legal issues and their implications for practice. (For more information on the conference, please click here.)

NEASS, the oldest and only remaining regional organization of school administrators in the country, is comprised of superintendents elected by their state associations in Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont. Among its purposes is to bring awareness of significant educational issues in New England to the attention of the American Association of School Administrators and regional and agencies.

Four Shipman & Goodwin Attorneys to Present at the 2017 CAIS Annual Conference on Governance

On September 23, 2017, four Shipman & Goodwin attorneys will present sessions at the 2017 CAIS Annual Conference on Governance, a conference for trustees, heads, business managers and senior-level school administrators interested in governance.

Julie C. Fay and Morgan P. Rueckert will present the session, “Sexual Misconduct: Prevention and Response.”  This session will review the current legal landscape regarding allegations of sexual misconduct involving students, including an overview of Connecticut’s mandated reporting obligations and the impact that federal Title IX policies are having on the handling of investigations related to student-to-student sexual assault.  As part of this discussion, the presenters will focus on preventative steps schools should be taking as well as the range of appropriate responses to allegations if and when they might arise.

Bruce A. Chudwick and Linda L. Yoder will present the session, “Hot Topics and Legal Trends.”  This workshop will provide an overview of current legal topics impacting independent schools, including new legislation expanding background check requirements and the impact of key federal policy changes on topics such as overtime regulations, sexual assault investigations, and transgender individuals.  Other areas of discussion will include trends with enrollment contracts, accommodating students with disabilities under the ADA and risk management issues involving international travel.  Finally, this session will include discussion of important policy considerations related to professional boundaries such as those involving social media, use of personal vehicles and communications with students.

The CAIS Annual Conference on Governance is a conference for Trustees, Heads, Business Managers and Senior-Level School Administrators interested in governance. Featuring: Pat Bassett, Co-Founder, Heads Up Educational Consulting, President Emeritus, National Association of Independent Schools.  For more information and to register, visit the CAIS website or download a copy of the event program.

Susan Freedman to Present Special Education Hearing Training

Susan Freedman PhotoOn Wednesday, September 13, 2017, school law attorney Susan C. Freedman will sit on a panel with parent attorneys offering training about special education hearings for special education due process mediators and hearing officers during The Bureau of Special Education’s 14th Annual Back to School Meeting.  This training will take place at 1:30 p.m., and during several breakout sessions offered in the afternoon for directors.

The Bureau of Special Education’s 14th Annual Back to School Meeting will feature a keynote address from Bureau Chief, Mr. Bryan Klimkiewicz and feature general session presentations on topics including: due process and fiscal updates, special education data, and SLD and SLD/dyslexia updates.  For more information about the program and to register, download the event flyer.

 

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