2016 COSA School Law Seminar Agenda

Thursday, April 7

9:00 a.m. – 1:30 p.m.

NSBA Member State Association Counsel Luncheon Meeting

Host: Jim Keith, Adams and Reese, Jackson, MS

9:00 a.m. – 1:30 p.m.

In House Counsel Luncheon Meeting

Host: Doug Thorne, Elkhart Community Schools, Elkhart, IN

2:00 p.m. – 4:00 p.m.

Concurrent Early Bird Sessions

Session 1: Students

2016 FERPA Update – What’s New? (2:00 p.m. – 3:00 p.m.)

With a possible revision of FERPA currently in process, now is the time to learn what changes have been proposed (or enacted) and to update your practice to meet the new challenges of a revised FERPA. Thomas Myers of Brackett & Ellis, Fort Worth, Texas will discuss proposed (or enacted) changes, their possible impacts on school attorneys, what has not changed, and possible traps to be aware of in your daily practice.

Thomas Myers, Brackett & Ellis, Fort Worth, TX

Bullying and Cyberbullying: School District Duties According to OCR (3:10 p.m. – 4:00 p.m.)

Join an experienced state association counsel for a detailed look at legal requirements for school districts on the issue of peer bullying and cyberbullying, compared to the expectations of the U.S. Department of Education’s Office for Civil Rights. The presenter will address actions that are required by law at the state/federal level, and how those requirements interrelate. She will also note OCR’s significant expansion -- through guidance documents, Dear Colleague Letters, and complaint resolution agreements -- of its expectations for district policy, procedure and training, paying particular attention to OCR’s efforts with respect to bullying of students with disabilities. Come away with sample policy and procedure language, and excerpts from recent OCR complaint resolution agreements.

Teresa Combs, Kentucky School Boards Association, Frankfort, KY

2:00 p.m. – 4:00 p.m.

Concurrent Early Bird Sessions

Session 2: Labor and Employment

Host:  Elizabeth Valerio, Deutsch Williams, Boston, MA

Are Your Fringe Benefits Legal? (2:00 p.m. – 3:00 p.m.)

In this session, a school attorney with deep experience on fringe benefits issues takes a hard look at current law in the area. Whether you advise in negotiations with unions or with respect to providing fringe benefits to non-union employees, this session will assist you in determining whether your clients’ fringe benefits plans would pass muster with regard to discrimination laws, tax laws, the Affordable Care Act and other legal compliance issues and audits.

Barbara Erickson and Mary Karagiannis, Hodges, Loizzi, Eisenhammer, Rodick & Kohn, Arlington Heights, IL

Counseling School District Clients on How to Process Employees’ Requests for Religious Accommodation (3:10 p.m. – 4:00 p.m.)

Requests for religious accommodations oftentimes present unique challenges for school districts. This program will review new and relevant law in this area, and most importantly, provide practical guidance on advising school districts on handling employee requests for religious accommodations. Attendees will receive a procedural check list designed to help school districts identify and properly process religious accommodation requests.

Frank B. Garrett III, Robbins Schwartz, Chicago, IL

1:30 p.m. – 4:00 p.m.

Concurrent Early Bird Sessions

Session 3: OCR Workshop - COSA Members Only

Host: Phil Hartley, Harben, Hartley and Hawkins, Gainesville, GA

OCR Areas of Focus: the School Attorney Experience (1:30 p.m. – 3:00 p.m. - Includes bonus 30-minute roundtable discussion)

We’ll start this session with a 30-minute roundtable discussion of your recent experiences with OCR investigations. Then, starting at 2:00 p.m., members of COSA’s OCR Task Force will discuss OCR investigations nationwide, highlighting areas of OCR focus such as transgender student accommodations, bullying, and sexual harassment. The presenters will summarize recent experience in actual investigations, illuminate new guidance from OCR on these issues, and share strategies on working with OCR on these hot-button topics.

Presenters: Séamus Boyce, Church, Church, Hittle & Antrim, Noblesville, IN; Jennifer Smith, Franczek Radelet, Chicago, IL; Kelly Dowling Stimpson, Tupelo Public School District, Tupelo, MS

OCR Investigation Took Kit: Cooperation, Advocacy and Asserting the District Point of View (3:10 p.m. – 4:00 p.m.)

COSA members who have counseled school districts through painful OCR investigations offer tips on proactive steps you and your clients can take to avoid contentious investigations, to cooperate when appropriate, and to push back when necessary to advocate effectively for your school board client. Come away with invaluable insights from your colleagues in the trenches.

Presenters: Lenore Silverman, Fagen Friedman & Fulfrost, Oakland, CA; Joy Baskin, Texas Association of School Boards, Austin, TX

4:00 p.m. – 4:30 p.m.

Refreshments and Networking

Location: Grand Ballroom Foyer

4:30 p.m. – 6:00 p.m.

Opening General Session

Your Host: Andrew Sanchez, Cuddy & McCarthy, Albuquerque, NM

Greetings and Welcome to Boston

Cheryl Watson Fisher, City Solicitor, City of Chelsea, MA, Immediate Past Chair, Massachusetts Council of School Attorneys

ESEA Reauthorized! A Close Look at the Path to Reauthorization and the Every Student Succeeds Act

In December, Congress finally reauthorized the Elementary and Secondary Education Act by passing the Every Student Succeeds Act, with bipartisan and Administration support. ESSA fundamentally changes the federal role in K-12 public education, specifically limits the authority of the Secretary of Education, and turns over much authority to state and local leaders. In this opening session, a key member of NSBA’s federal advocacy staff will discuss the beltway bargaining required to pass the new law, key provisions school attorneys should know and share with their clients, and the regulatory process ahead. School board attorneys will share what has changed, what looks promising, and what pitfalls to watch out for.

Speaker: Michael Zola, National School Boards Association, Alexandria, VA; Pilar Sokol, New York State School Boards Association; Debra Silk, Montana School Boards Association

6:45 p.m.

Dine Around Boston

Friday, April 8

7:30 a.m. - 9:00 a.m.

Continental Breakfast

8:30 a.m. – 12:00 p.m.

General Session

Host: Pilar Sokol, New York State School Boards Association, Latham, NY and COSA Vice Chair

Is Big Brother (Really) Watching? Evolving Legal Standards Regarding Video/Email Use in Schools (8:30 a.m. – 9:30 a.m.)

Technology, case law, and federal guidance are slowly changing how we define “education record.” With an update to the Family Educational Rights and Privacy Act expected in the near future, NSBA published recommendations to Congress regarding how it defines “education record.” But while the law struggles, and fails, to keep up with innovations in technology, public schools are stuck in the middle of the tug-of-war between privacy protection requirements and sunshine laws. As schools continue to produce prodigious amounts of email messages and increasingly use video in school buildings, the law’s snail pace has become all too clear. Join three school attorneys and the U.S. Department of Education’s Chief Privacy Officer for a discussion of how school attorneys can advise school districts in this area. Come away with sample guidelines on retention of video and electronic data, and a checklist for understanding formal and informal FERPA guidance on the use of video and email.

Andrew Manna, Church Church Hittle & Antrim, Noblesville, IN; Deborah Smith and Michele Morris, Union County Public Schools, Monroe, NC; Kathleen Styles, Chief Privacy Officer, U.S. Department of Education

News from COSA (9:30 a.m. – 9:45 a.m.)

Civil Rights Liability in the Public Schools: A 19th Century Law Wrestles With 21st Century Problems (9:45 a.m. – 10:45 a.m.)

Over the years, schools have been sued by parents and students alleging civil rights violations under 42 U.S.C. Section 1983. This session will examine current topics and liability exposure that public schools and school officials face today. The discussion will focus on recent case law and practical tips for defending schools and school officials in litigation involving harassment, bullying, and a school's duty to protect, student discipline, due process for students, freedom of expression, off-campus speech, and student searches.

Darcy Proctor, Ancel Glink Diamond Bush Dicianni & Krafthefer, Chicago IL; John Foskett, Deutsch Williams Brooks DeRensis & Holland, Boston, MA; and Linda Yoder, Shipman & Goodwin, Hartford, CT

What about My Rights? School Board Members and the First Amendment (11:00 a.m. – 12:00 p.m.)

School board members can feel that their free speech, or even parental rights are unduly inhibited once they become elected officials. This session will provide an overview of how the courts have analyzed school board members’ First Amendment rights, as elected public officials and as private citizens, on matters such as social media, campaign and election laws, parent concerns, open records, and open meetings.

Karla Schultz, Walsh, Gallegos, Treviño, Russo & Kyle, Austin, TX; Mark Tilley, Texas Association of School Boards, Austin, TX

12:00 p.m. – 1:15 p.m.

Lunch on Your Own

1:30 p.m. – 4:30 p.m.

Concurrent Sessions

Location: Constitution Ballroom

Host: Jim Walsh, Walsh, Gallegos, Treviño, Russo & Kyle, PC, Austin, TX

Session 1: Students

Conducting Title IX Complaint Investigations (1:30 p.m. – 2:20 p.m.)

Three COSA members with unique perspectives on Title IX investigations will provide a detailed look at applicable law and guidance, as well as the additional requirements recently imposed by OCR guidance.  These seasoned attorneys, one of whom formerly worked for OCR, as they walk through a Title IX investigation from start to finish. 

Lawrence J. Altman, Adjunct Professor, Avila University and (retired) Special Education Lead Attorney and Compliance officer, Kansas City Public Schools, Kansas City, MO; John Borkowski, Husch Blackwell, Chicago, IL; Elizabeth Samples, Husch Blackwell, Kansas City, MO

A Legal Guide to Serving LGBT Students (2:30 p.m. – 3:20 p.m.)

LGBT and Transgender students may have needs that arise at school that relate in important ways to their gender identity or sexual preference. This session will explore topic areas in which schools should consider how they service their LGBT students – including student records, safety, bathroom access, extracurricular activities, locker room access, and health services – and some of the state and federal laws applicable to each area. We will also engage participants in an interactive analysis on how courts and the U.S. Department of Education’s Office of Civil Rights are viewing these issues.

Jennifer A. Smith and Amy K. Dickerson, Franczek Radelet, Chicago, IL

Legally Defensible Programming for Students with Autism (3:30 p.m. – 4:30 p.m.)

The current prevalence of diagnoses of Autism Spectrum Disorder (ASD) is 1 in 68 births, an increase of nearly 120% over the past fifteen years. It is also a high-frequency area of special education litigation between parents and schools, in part due to the uniqueness of each ASD diagnosis and the complexity of each resulting IEP. Schools serving students with ASD often must address the impact of this developmental disability on social skills, communication skills and behavior functioning. Autism Spectrum Disorder, therefore, results in disproportionate costs for schools, including residential placements, increased classroom staff, and professional development for methodologies. We will examine the significant cost and resource exposure to schools when highly emotionally charged conflicts arise, and offer tips and suggestions for working collaboratively with families to develop defensible programs that will enable the students to benefit.

Charlie Weatherly, Weatherly Law Firm, Atlanta, GA; Monica Conrad, Church Church Hittle & Antrim, Merrillville, IN

1:30 p.m. – 4:30 p.m.

Concurrent Sessions

Location: Grand Ballroom    

Host: Anne Littlefield, Shipman & Goodwin, Hartford, CT  

Session 2: Employment and Governance

Terminating Employees With Positive Performance Evaluations: Common Scenarios and Practical Solutions (1:30 p.m. – 2:20 p.m.)

This session will provide practical guidance for advising school districts in school employee termination scenarios in which there have been positive performance evaluations. The presenters will discuss revising completed evaluations; negotiating settlements; strategic use of other performance-related documentation; avoiding retaliation and discrimination claims; and putting evaluations in proper context when responding to an EEOC complaint. The session will review scenarios involving positive performance evaluations and analyze whether termination is defensible or whether continued assistance and documentation is advisable.

Janet Horton and Melisa Meyler, Thompson & Horton, Houston, TX

Employees in the Electronic Era: Addressing Privacy, Free Speech and Discipline (2:30 p.m. – 3:20 p.m.)

Technology and increased access to online communication mediums have brought new attention to employee privacy, free speech rights, and discipline. This workshop covers legal implications and requirements, best practices, and how to maximize efficiency and effectiveness through technology without overstepping privacy boundaries, and other employee rights.

Michael Smith, Lozano Smith, Fresno, CA

Creative Revenue Streaming: A Legally-Defensible Guide To Raising Funds Through Advertising On School Grounds, Naming Of School Facilities, And Licensing The School Brand (3:30 p.m. – 4:30 p.m.)

Public schools across the nation are overburdened and underfunded.  Because of this, the ability to raise revenues in non-traditional ways has become a matter of survival.  This session will explore some of the common and more creative methods that schools have used to generate funds through means such licensing, naming of school facilities, and advertising agreements.  Ms. Gilsbach will look at common legal issues associated with each method and discuss the preferred.  Participants will be encouraged to share “best practices” from their own experience and common pitfalls that schools should seek to avoid.

Erin Gilsbach, King Spry Herman Freund & Faul, Bethlehem, PA

4:45 p.m. – 6:15 p.m.

School Law Seminar Reception

Location: Republic Ballroom

Host:  Randall Bennett, Tennessee School Boards Association, Nashville, TN

Thank you to our sponsors:

Cuddy & McCarthy, LLP

Hodges, Loizzi, Eisenhammer, Rodick & Kohn, LLP

Illinois Association of School Boards

Illinois Council of School Attorneys

New Mexico School Boards Association


Dinner On Your Own

Saturday, April 9

7:30 a.m. – 9:00 a.m.

Continental Breakfast

8:30 a.m. – 12:00 p.m.

General Session & COSA Award Presentation

Location: Grand Ballroom

Host:  Diane Marshall-Freeman, Fagen Friedman & Fulfrost, Sacramento, CA and COSA Secretary

The National School Law Docket – NSBA Legal Advocacy (8:30 a.m. – 9:20 a.m.)

NSBA General Counsel Francisco Negrón updates attendees on the NSBA legal advocacy agenda, including key Supreme Court cases affecting public schools, federal agency activity, and NSBA filings including amicus briefs, comments and public letters. Mr. Negrón’s session is a highlight of the seminar – don’t miss it!

Francisco M. Negrón, Jr., NSBA Associate Executive Director & General Counsel, Alexandria, VA

COSA Award Presentation (9:20 a.m. – 9:40 a.m.)

Presiding: Patrice McCarthy, Connecticut Association of Boards of Education and Chair, COSA Awards Committee

Remarks:  David Rubin, Jay Worona, Mike Loizzi and Sonja Trainor

COSA Business Meeting, Elections (9:40 a.m. – 10:00 a.m.)

Presiding: Justin Petrarca, Scariano, Himes and Petrarca, Chicago, IL

Presenting: Greg Guercio, Guercio & Guercio, Farmingdale, NY; Andrew Sanchez, Cuddy & McCarthy, Albuquerque, NM and COSA Chair-Elect

CSI: School District - The Legal and Practice Issues Related to School District Investigations (10:00 a.m. – 10:50 a.m.)

Sexual misconduct. Harassment.  Bullying.  Cyberbullying.  Social Networking relationships.  Drugs.  Alcohol.  Cheating.    As types of alleged misconduct in schools grow and evolve, so does the role of the school attorney in leading and managing investigations into these issues.  School attorneys must be able to lead legally sound and thorough investigations into incidents of misconduct while avoiding multiple legal landmines. We face many issues of constitutionality, including search and seizure, first amendment, and fourth amendment issues.  The speakers will explore the constitutional issues attorneys encounter, and take a practical look at the obstacles to running investigations.  Come away with an investigations check-list.

Bennett Rodick and Stephanie Jones Hodges Loizzi Eisenhammer Rodick & Kohn, Arlington Heights, IL

The Legal Ethics of School District Investigations (11:00 a.m. – 12:00 p.m.)

Complementing the last presentation, this session will address the ethical obligations of counsel conducting internal investigations, focusing on selection of the investigator, identification of the “client,” reporting responsibilities, duties to interviewees and interested parties, maintaining confidentiality and other nuts-and-bolts issues.

David Rubin, David B. Rubin, PC, Metuchen, NJ

12:00 p.m.


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