Seminar Materials

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Thursday, October 20

2:00 p.m. – 3:50 p.m.

Concurrent Early Bird Sessions

Session 1: Labor and Employment

Location: Pavilion Ballroom East

Labor Unrest in the Post-Recession Era (2:00 p.m. – 2:50 p.m.)

The speaker discusses current bargaining strategies and objectives of labor unions, and the use of strikes, legal and illegal, as well as political action at the state and local level, to satisfy school employees' demands for income growth, re-enforcement of teacher authority, and preservation of insurance and retirement benefits. In contrast, what have school districts done to rally public and employee support for their goals to target any new dollars to restore programs and staffing decimated during the recession years?

Lisa Freiley, Oregon School Boards Association, Salem, OR

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Alternative Challenges by Dismissed Employees: Claims of Retaliation, Discrimination, or Violation of the First Amendment Rights (3:00 p.m. – 3:50 p.m.)

Even employees with few traditional protections (such as at-will or probationary employees) are skipping or duplicating the "just cause" arbitration or administrative hearing processes and going directly to state or federal court with these alternative claims. How can school attorneys help their clients anticipate and protect against these claims?

Peter Mersereau, Mersereau Shannon, Portland, OR

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2:00 p.m. – 3:50 p.m.

Concurrent Early Bird Sessions

Session 2: Special Education

Location: Pavilion Ballroom West

Results Driven Accountability: A Recreated IDEA (2:00 p.m. – 2:50 p.m.)

Results Driven Accountability (RDA) requires that, in the aggregate, students with disabilities close the achievement gap with their non-disabled peers. This session will review OSEP’s monitoring and new legal requirements, which compel SEAs and LEAs to rethink IEP development and the Rowley standard. Leave with a preventative legal checklist designed to ensure that school lawyers and officials are aware of the IEP components impacted by RDA so as to meet the new standard and avoid litigation.

Gary Ruesch, Buelow Vetter Buikema Olson & Vliet, Waukesha, WI

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What's Wrong with the IDEA? A Close Look at the Current Law's Challenges and Recommendations for Reauthorization (3:00 p.m. – 3:50 p.m.)

Members of the COSA IDEA Working Group identify elements of the current IDEA statute, regulations, and interpreting case law that have led to unnecessarily adversarial and contentious proceedings with parents, and share the group’s proposals for IDEA’s eventual reauthorization.

Jim Keith, Adams and Reese, Jackson, MS; Andrew Manna, Church Church Hittle & Antrim, Noblesville, IN; James Thomeczek, Thomeczek & Brink, St. Louis, MO

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4:30 p.m. – 6:00 p.m.

Opening General Session

Location: Pavilion Ballroom

Federal Agency Guidance and the Law: A Showdown in the Courts

This spring, concerns about the role of federal guidance in framing -- or making – law affecting schools came to a head in several venues, all addressing the issue of transgender student rights. The state of North Carolina and the U.S. Department of Justice filed dueling law suits in separate federal courts over the state’s controversial law restricting bathroom use to biological sex. Ten-plus states and two school districts sued multiple federal agencies challenging guidance issued by the Departments of Education and Justice on the rights of transgender students. And one Illinois school district at the center of a conflict with OCR over the extent of its authority found itself, along with the Department, the defendant in a lawsuit over its Resolution Agreement with OCR. In this lively opening session, join seasoned COSA attorneys actively advising districts in the eye of the federal-state authority storm. Panelists will provide insights on how to advise districts in this polarized political climate in which federal guidance, federal law, and state policy remain unaligned, until courts clarify the law.

Moderator: Andrew Manna, Church Church Hittle & Antrim, Noblesville, IN

Panelists: Allison Schafer, North Carolina School Boards Association; Jennifer Smith, Franczek Radelet, Chicago, IL; Katie Anderson, Strasburger & Price, LLP, Dallas, TX

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Friday, October 21

8:30 a.m. – 12:00 p.m.

General Session

Location: Pavilion Ballroom

NSBA's Legal Advocacy Agenda (8:30 a.m. – 9:30 a.m.)

While you represent school districts on the ground, NSBA is the legal advocacy voice for school boards in Washington, filing amicus briefs with the Supreme Court and other federal courts, engaging with administrative agencies, and tracking national school law trends. In this session, get up-to-date on the national school law docket with an always-entertaining session by the NSBA General Counsel.

Francisco Negrón, National School Boards Association, Alexandria, VA

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Advising School Boards on Practical and Proactive Solutions for Disparities in School Discipline (9:40 a.m. – 10:55 a.m.)

With the significant attention placed by the Department of Education on disparities in student discipline, many school districts have embraced approaches such as Positive Behavioral Interventions and Supports, Restorative Justice, and the like. Three attorneys well-versed in the legal standards at play will brief you on the current state of the law and litigation in this area, along with practical considerations for advising your school board clients. Join us for an energetic conversation! Mr. Simmons represents California school districts, advising on the issue of racial discrimination in school disciplinary practices and litigation on point. Mr. Wright has extensive experience advising districts on discipline policies for students with disabilities. And Ms. Barghava was an architect of the joint guidance on student discipline issued by the Departments of Justice and Education in 2014.

Sloan Simmons, Lozano Smith, Sacramento, CA; Brandon Wright, Miller Tracy Braun Funk & Miller, Monticello, IL; Anurima Bhargava, Harvard Kennedy School Institute of Politics, former chief, Educational Opportunities Section, Civil Rights Division, U.S. Department of Justice

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Advising School Districts on Threats of Violence (11:00 a.m. – 11:50 a.m.)

In December 2015, the two largest school systems in the U.S. received the same email threat. One dismissed it as a hoax; the other closed schools throughout the city. As a school attorney, how do you assist your clients in assessing threats, and developing policies and procedures for threat assessment? A COSA attorney with year of experience in this area shares insights and law.

Charles Leitch, Patterson Buchanan Fobes & Leitch, Seattle, WA

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12:00 p.m. - 1:15 p.m.

Bonus Lunch Session for New School Attorneys

Location: Skyline I/II

An Introduction to Federal Law on Curricular Control: Controversial Subjects, Parent Opt-outs, Teacher Discretion, Religion, and Assessments Under ESSA

Historically, states have delegated to local districts the power to establish curricular requirements, adopt materials, and set grading practices. And courts generally refuse to interfere with instructional matters, leaving educational questions to the discretion of the education experts. But, there are important limits to this deference, such as when a state or district has overstepped its authority, acted unreasonably, or infringed on an individual’s statutory or constitutional rights. Join a former COSA Chair for a review of the bounds of schools’ freedom to control and mandate curriculum, including recent assessment requirements enacted with the Every Student Succeeds Act.

Patrice McCarthy, Connecticut Association of Boards of Education, Wethersfield, CT

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Practice Tips for New School Attorneys: Honing Your “People” Skills

The school attorney’s job sometimes requires diplomacy, grace and calm in the face of challenging and conflicting personalities. COSA board member and 40-year school attorney Patti Whitten leads new and developing school attorneys in a discussion of how to hone your people skills to identify and manage your own and your clients’ personalities in stressful scenarios. Learn how you can be the voice of reason when the situation demands it.

Patti Whitten, Franczek Radelet, Chicago, IL

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1:30 p.m. – 4:20 p.m.

Concurrent Sessions

Session 1: Governance and Students

Location: Pavilion Ballroom East

What We Have Learned About K-12 Sex Abuse Claims Since the Letourneau Case (1:30 p.m. – 2:20 p.m.)

Join two COSA members who have handled over 1000 sex abuse claims between them, including the infamous Letourneau case. They will share enlightening insights on challenging realities like the scope of the problem, jury verdicts, case valuation, and systemic problems within district which drive verdicts higher. The presenters will provide detailed practice trips on handling notice, investigations, the media, insurance, and resolutions through mediation. Finally, they will offer a systematic approach to preventing sexual misconduct by employees.

Mike Patterson and Don Austin, Patterson Buchanan Fobes & Leitch, Seattle, WA

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Student Mental Health: The Public School's Legal Role (2:30 p.m. – 3:20 p.m.)

This presentation will examine the scope of public schools’ legal obligations to address student mental health needs. The presenters will examine in-depth best practices and legal strategies for helping schools respond to student threats of self-harm and suicide, including school counselors’ duty to warn, special education considerations, and an examination of the rise of “bullycide” cases nation-wide.

Sarah Schmanke and Betsey Helfrich, Mickes O'Toole, St. Louis, MO

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Working With Law Enforcement (3:30 p.m. – 4:20 p.m.)

Nearly every day, school officials are faced with student, employee, or school guest behavior that may lead to a criminal report or investigation. The school attorney is often involved in facilitating the school-law enforcement conversation, drafting documents to memorialize the relationship, and assisting with policy/procedure development. A school attorney discusses the ins and outs of advising administrators on working with law enforcement. Through scenarios, this session will cover evidence collection, parallel investigations, Garrity warnings, 4th Amendment concerns, records and more!

Stephanie Harper, Portland Public Schools, Portland, OR

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1:30 p.m. – 4:30 p.m.

Concurrent Sessions

Session 2: Employees and Governance

Location: Pavilion Ballroom West    

Legal “High”-lights in Medical and Recreational Marijuana Use by Students and Employees (1:30 p.m. – 2:20 p.m.)

Numerous states and cities across the country have “de-criminalized” the use of marijuana. New types of drugs continue to appear in schools, however. In this session, the presenter will discuss new drug trends and provide attendees with practical ways of handling employees’ and students’ use of marijuana..

James Gessford, Perry Guthery Haase & Gessford, Lincoln, NE

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ADA Accommodations for Employees: Navigating the Quicksand (2:30 p.m. – 3:20 p.m.)

You notice that your physical education teacher has started using a cane. Should you offer him a reserved parking space close to the gym? Should you send flowers and a card to an employee who is on medical leave and tell her to get well soon? Should an aide who claims PTSD from a student assault be permitted to bring her therapy dog to work? How do you balance the need for consistent instruction with your only Chinese teacher’s request for intermittent leave for chemotherapy? Treat yourself to a fun session navigating real public school fact-patterns with two veteran attorneys. Come away with clear insights for advising your school clients on how to remain on solid ground when addressing employee disability issues.

Linda Yoder and Anne Littlefield, Shipman & Goodwin, Hartford, CT

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From Eid al-Fitr to Hijabs: Applying Religious Freedom, Nondiscrimination, and Accommodation Standards for Muslim Students and Staff (3:30 p.m. – 4:20 p.m.)

School lawyers play a key role in school districts’ responses to new types of religious accommodation requests, which includes advising schools on the obligation to provide a nondiscriminatory school and work environment. This session will present a legal and policy framework for addressing these issues, with specific examples from increasingly frequent requests from Muslim students and staff.

Jollee Patterson, former General Counsel, Portland Public Schools, Portland, OR and Mike Porter, Miller Nash Graham & Dunn, Portland, OR

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Saturday, October 22

8:30 a.m. – 12:10 p.m.

General Session 

Location: Pavilion Ballroom

ESSA Implementation Update: Key Provisions and Proposed Regulations School Attorneys Need to Know (8:30 a.m. – 9:30 a.m.)

Erin and Timothy Gilsbach analyze the ESSA and its potential impact on school districts and students, including students with disabilities. Get an in-the-weeds update on key ESSA provisions affecting your clients, and the status of their implementation, particularly the assessment and alternative assessment requirements, McKinney-Vento, and supplement-not-supplant.

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

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Data Privacy Law Update: Ten Things to Advise Your School Board Clients – Before It’s Too Late (10:00 a.m. – 11:00 a.m.)

Even without a re-write of FERPA this year, the national conversation about student data privacy has yielded significant state statutory changes, federal agency guidance, and collaboration on vendor contracts that signal the direction federal law may be going. Join the chairs of COSA’s working group on data privacy for key happenings you need to know about to better advise your school board clients in this fast-evolving area.

David Rubin, David B. Rubin PC, Metutchen, NJ; Phil Hartley, Harben, Hartley & Hawins, Gainesville, GA; Sonja Trainor, Director, NSBA Council of School Attorneys, Alexandria, VA

Tickling Adam’s Rib: A He Said/She Said Real-World Tour of Ethics Issues in Representing School Districts (11:10 a.m. – 12:10 p.m.)

Navigating the maze of ethical issues arising in one’s representation of public school districts can prove challenging for the most experienced school attorney. To illustrate this complexity, seasoned school attorneys who happen to be married will offer a point-counterpoint perspective on particularly thorny issues like identifying the client, confidential communications, contending with client representatives in multiple roles, dodging social media nightmares, and more..

Kristen Clark, Texas Association of School Boards, Austin, TX and Todd Clark, Walsh Gallegos Trevino Russo & Kyle, PC, Austin, TX

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