Legal Briefs and Guides

January 17, 2025
 
NSBA joined other national education organizations in an amicus brief in Federal Communications Commission v. Consumers’ Research, Case No. 24-354, now pending in the Supreme Court. The brief supports the position that the method used by the Federal Communications Commission per 47 U.S.C. § 254 for setting a universal service fee paid by telecommunications carriers based on financial projections made by the private entity that administers the program does not violate the nondelegation doctrine. The brief argues that the lower court’s decision invalidating the universal service fee would jeopardize Congress’ mission to provide telecommunications services to all Americans. Rural, poor, and underserved schools and communities have depended for decades on programs funded by the universal service fee for access to affordable, reliable telecommunication services, including high-speed internet services. If left uncorrected, the lower court’s decision would dismantle these vital programs.

Leroy v. Livingston Manor Central School District (U.S. Court of Appeals for the Second Circuit)
November 20, 2024

NSBA and the New York State School Boards Association filed an amicus brief in Leroy v. Livingston Manor Central School District, a First Amendment case in the Second Circuit. A high school student, Leroy, was suspended after posting a photograph off-campus with friends simulating the incident that led to George Floyd’s death. The brief argues that Supreme Court precedent grants schools needed leeway to discipline disruptive student conduct and that schools have a duty to keep school environments safe by regulating speech that causes substantial disruption to the education mission.

St. Dominic Academy v. Makin (U.S. Court of Appeals for the First Circuit)
November 14, 2024

NSBA and a large group of organizations filed an amicus curiae brief in St. Dominic Academy v. Makin, a First Circuit case challenging the constitutionality of Maine’s law prohibiting discrimination against LGBTQ+ and other students in schools receiving public funds. The amicus brief argues that religious schools in Maine participating in the state’s school tuition program must comply with all eligibility requirements of the program – including a prohibition on discrimination on the basis of religion, and gender identity, among other protected characteristics.

Crosspoint Church v. Makin (U.S. Court of Appeals for the First Circuit)
November 4, 2024

NSBA and several other organizations filed an amicus curiae brief in Crosspoint Church v. Makin, a case challenging the constitutionality of Maine’s law prohibiting discrimination against LGBTQ+ and other students in schools receiving public funds.

The education clause of Maine’s constitution requires the State Legislature to provide access to public education for all Maine’s children. For reasons including Maine’s rural geography, the Legislature allows districts that do not operate their own public schools to pay students’ tuition at approved private schools under the “town tuitioning” program. Schools receiving such funds must comply with various education standards, including antidiscrimination provisions that protect Maine’s most vulnerable students. In 2022, the U.S. Supreme Court ruled in Carson v. Makin that Maine had to allow religious schools to participate in the town tuitioning program. In 2023, Crosspoint Church filed a lawsuit in federal district court alleging that the Maine Human Rights Act (MHRA) violated Carson and its federal constitutional rights by excluding it from town tuitioning if it maintained policies discriminating against LGBTQ+ individuals, which it claims are required by its religious beliefs. 

The amicus brief argues that the MHRA, which prohibits discrimination on the basis of “sex, sexual orientation or gender identity, physical or mental disability, ancestry, national origin, race, color or religion,” is a neutral, generally applicable law subject to a minimal standard of judicial review. But the brief explains that the MHRA could withstand even the highest level of constitutional scrutiny because protecting LGBTQ+ students from discrimination is a compelling state interest and the law at issue is narrowly tailored to fulfill it. 

Mid Vermont Christian School v. Saunders (U.S. Court of Appeals for the Second Circuit)
October 22, 2024

NSBA filed an amicus brief in Mid Vermont Christian School v. Saunders. The case involves a First Amendment Free Exercise and 14th Amendment challenge to Vermont Agency of Education and Principal's Association requirement that religious schools follow laws, rules, and policies that prevent those schools from operating consistently with their religious beliefs about sexuality and gender. NSBA cosigned the brief, with the National Education Association, American Federal of Teachers, and Public Funds Public Schools. 

Molak v. Federal Communications Commission (U.S. Court of Appeals for the Ninth Circuit)
June 10, 2024

In Molak v. Federal Communications Commission, the Fifth Circuit considers whether the FCC exceeded its statutory authority when it issued a Declaratory Ruling (“the Ruling”) in October 2023 expanding the reach of E-Rate subsidies to the provision of Wi-Fi hotspots on school buses. The challengers claim that the Ruling is unlawful because The Communications Act (“the Act”) authorizing E-Rate subsidies refers to “classrooms” and “libraries” only and argue that the Ruiling exceeds the FCC’s statutory authority, is harmful to children because they will spend more time on social media, and expends federal funds without accountability and will perpetuate waste. NSBA joined other national education organizations in an amicus brief explaining to the court that the text of the Act clearly authorizes the FCC to provide discounts on telecommunications services, internet access, and internal connections provided to schools and libraries for educational purposes, which includes services delivered to school buses owned or contracted for use by schools. There is longstanding precedent for the use of E-Rate funding to support schools’ and libraries’ educational connectivity outside of classrooms. The program is particularly crucial to ensuring that those in low-income, rural, or remote areas have the same access and opportunity afforded by broadband to support teaching and learning and the Ruling helps schools to use school bus Wi-Fi to help close the homework gap.

J.S. v. Eugene School District 4J (U.S. Court of Appeals for the Ninth Circuit)
February 12, 2024

The plaintiff in this case is a student whose Oregon school district provided him with special education and related services through an Individualized Education Program (IEP) under the Individuals with Disabilities Education Act (IDEA). The student and his family filed a complaint under IDEA’s administrative procedures taking issue with certain services provided by the district.  At the IDEA due process hearing, the hearing officer determined that the school district had developed a valid IEP that provided the student with a Free Appropriate Public Education (FAPE). The family appealed that decision to federal district court, which upheld the hearing officer’s ruling on FAPE. The family also sought monetary damages from the district, alleging that the district had discriminated against him based on disability by failing to provide certain services, in violation of Section 504 of the Rehabilitation Act. The student argued that the district should be found to have violated Section 504, even if the district provided FAPE under the IDEA. The NSBA amicus brief, joined by the Oregon School Boards Association, provides the Court with the history of the parallel development of Section 504 and the IDEA, along with courts’ interpretation of the regulations implementing those laws, particularly with respect to a regulation that provides that the implementation of an IEP under the IDEA meets Section 504’s FAPE requirements. The brief emphasizes that the collaborative framework of the IDEA process favors cooperation between local educational agencies (“LEA”) and families to develop a program appropriate for a child, and disposition of disputes through an administrative hearing process overseen by a hearing officer with specialized expertise, rather than costly, contentious, and emotionally painful litigation.

Legal Guides

Learn more about key issues facing public schools through a legal lens with NSBA's legal guides.

NSBA Immigration Guide

NSBA 2025 Immigration Guide

On Jan. 20, 2025, the Department of Homeland Security (DHS) announced a rescission of the Biden Administration’s guidelines for Immigration and Customs Enforcement (ICE) and Customs and Border Protection enforcement actions that “thwart law enforcement in or near so-called ‘sensitive’ areas.” Under the new DHS directive, schools, along with other previously designated sensitive areas, will no longer be off-limits for immigration enforcement operations. 
This immigration guide from the NSBA legal team answers the following questions and more: What does the new Trump Administration directive mean for school board leaders and the students they serve? Are schools still required to serve undocumented students? What happens if an ICE agent shows up at your school?


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Accessibility of Web Information and Services of State and Local Government Entities: Summary of Key Provisions

On April 24, 2024, the Department of Justice released its final rule on website content and mobile applications accessibility for state and local governments. The final rule implements Title II of the Americans with Disabilities Act, which prohibits state and local government entities, including school districts, from discriminating on the basis of disability. It includes specific requirements these entities must follow to ensure website content and apps are accessible to people with disabilities. NSBA has prepared a summary of key provisions.


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U.S. Department of Education — Title IX: Summary of Key Provisions

In this summary, the NSBA legal team provides an overview of important changes made by the new Title IX Rules compared to the 2020 version. The U.S. Department of Education's Office for Civil Rights' (OCR) 2024 amendments to its Title IX Rule mark a shift in policy and approach from the final rule issued in 2020 in several key ways, including expansion of the scope of discrimination based on sex to include not only discrimination based on sex stereotypes, sex characteristics, and pregnancy or related conditions, but also (for the first time) sexual orientation and gender identity. For the first time, the department provided a Resource for Nondiscrimination Policies that offers sample language. The department also issued a Fact Sheet and a Summary Chart.

The final rules are effective August 1, 2024, barring any judicial ruling enjoining them. At least five lawsuits have been filed in federal courts challenging the final Title IX regulations as an invalid interpretation of Title IX and requesting injunctions delaying their effective date.


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School lunch on a tray

U.S. Department of Agriculture — Nutrition: Summary of Key Provisions

This reference document explains the new provisions that will apply to school lunch and breakfast programs effective July 1, 2024. On April 25, 2024, the U.S. Department of Agriculture's Food and Nutrition Service published the final rule, Child Nutrition Programs: Meal Patterns Consistent With the 2020-2025 Dietary Guidelines for Americans. This rulemaking gradually phases in added sugars limits for the school lunch and breakfast programs and updates total sugars limits for breakfast cereals and yogurt to added sugars limits.


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U.S. Department of Labor — Overtime: Summary of Key Provisions

This summary provides a quick description of the new salary thresholds for overtime effective July 1, 2024, and how employees with mixed teaching and non-teaching duties may be affected. The U.S. Department of Labor announced a final rule that expands overtime protections for lower-paid salaried workers by increasing the salary thresholds required to exempt a salaried bona fide executive, administrative, or professional employee from federal overtime pay requirements. While teachers and school administrators are exempt from the rule, it does raise the minimum salary threshold for non-teaching worker exemptions.


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Equal Employment Opportunity Commission — Pregnancy: Summary of Key Provisions

This resource summarizes the detailed requirements of the Pregnant Workers Fairness Act (PWFA) and the final regulations effective June 18, 2024, issued by the U.S. Equal Employment Opportunity Commission (EEOC). The PWFA requires most employers with 15 or more employees to provide "reasonable accommodations," or changes at work, for a worker's known limitations related to pregnancy, childbirth, or related medical conditions unless the accommodation will cause the employer an undue hardship. Employers are expected to accommodate a wide range of limitations once informed by the employee or representative.


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Fostering Safer Schools

The Fostering Safer Schools Guide assists school board members in finding the best practices for their districts, covering policies and programs that promote safe learning environments and ideas on how to collaborate with local law enforcement. This guide also provides districts with direction on school safety planning and how to understand liability risks and insurance options.


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