Elementary Principals 2011

Elementary School Law Update -- 2011 Kelley Baker Steve Williams Harding g & Shultz (402) 434-3000 @ g kbaker@hslegalfirm.com swilliams@hslegalfirm.com H & S School Law

Performance Framework • State Board draft of Nebraska Teacher and Principal Performance Framework • State Board adopted p the revised draft issued November 2, 2011 • Intended to be a “useful resource that provides p a definition of effective practice to voluntarily guide local district.”

Performance Framework • 2009 State Board heard complaints about unprepared teachers • National level – promoting “effective “ teachers • Not mandatory • Future?

– Board might do more – Could add them to Rule 20

Recommendations • • • • • •

Use the board-approved pp evaluation forms Train administrators on the policy Orient teachers annually Communicate expectations clearly Avoid mixed messages Use “I” I and “you” you – evaluations should not sound like police reports • Stick to the issues and get to the point

Recommendations • Make sure a third p party y could understand what you are saying (e.g. a board, judge) • Avoid passive voice • Move from suggestions to directives • Identify Id tif continuing ti i deficiencies d fi i i • Identify serious issues as such • Type your communications • Get a signature for receipt

School Securityy

A.W. v. School District • C.B.,, a kindergarten g student,, was sexually y assaulted in a school restroom • Mother sued, alleging negligence • District court entered summary judgment for school – assault not foreseeable • Supreme Court – remanded for further consideration id ti – foreseeability f bilit is i a matter tt of fact, not of law

A.W. v. School District • Joseph p Siems entered the school through g the main door on Sept. 22, 2005 • A sign told visitors to sign in, get name tag • Hallway visible to office through windows • Two T secretaries t i who h worked k d iin th the office ffi were to watch for visitors – One secretary was at lunch – The other was making photocopies

A.W. v. School District • One secretary was a replacement that day – Instructed I d as to checking h ki iin visitors? ii ?

• Siems had cigarette g behind ear,, backpack p • Spotted by teacher who asked Siems if she could help him • He ignored her; she went to office • Two T other th tteachers h w// students t d t saw Si Siems • One talked to him; other watched students

A.W. v. School District • She asked if she could help p him,, twice • He said he needed to use the restroom • She pointed out a nearby restroom where she knew there were no students • She Sh wentt tto classroom l tto reportt hi him • Other teacher saw him go into restroom then come out and go down the hallway • Apparently he went to another restroom

A.W. v. School District • Secretaryy determined that Siems had not checked in • After hearing from teachers, the secretary went to get the principal • CB returned to class from the restroom • He told the teacher that “there was a bad man in i the th restroom” t ” • Later reported Siems had pulled his pants down and performed oral sex on him

A.W. v. School District • Principal p found Siems in restroom sitting g in a stall • Teacher told Principal what CB said • Principal initiated lockdown of the school • Administrators Ad i i t t and d custodian t di watched t h d th the restroom • Custodian detained Siems until police arrived and arrested him

A.W. -- Court Analysis y • District Court dismissed case – the assault was nott foreseeable f bl • Supreme Court remanded - foreseeability is a matter of fact, not law • Elements of negligence case – Duty -- of reasonable care – Breach – Causation – Damages

A.W. -- Court Analysis y • Supreme Court: After Siems entered the b ildi building, however, h reasonable bl minds i d could differ as to whether LPS’ initial f il failure to t note t his hi presence, and d response to his presence, satisfied its duty of reasonable bl care.

Who’s Your Daddy -Custody Disputes

Schmidt V. Des Moines • Divorced parents had joint legal custody • Decree included a visitation schedule • Decree D permitted i d mom additional ddi i l visitation only “as mutually agreed to by and between the parties so as not to interfere with the health, education, and welfare of the parties’ minor children.”

• Dad told school he did not want mom to visit children during school hours

Parental Access to Children • School told mom – you need dad’s dad s consent for visits at school • School encouraged parents to agree on school visits and give school notice • District Court –parent’s constitutional right in care, custody and management of child and control over education “must give way to a school’s ability to control curriculum and the school environment.”

Parental Access to Children • 8th Cir. – fundamental liberty interest does not necessarily equal “unfettered access” at school.

• Even if it did, a right can be limited by decree which it was in this case. So no right to contact kids at school.

• “If [mom] believed that the [school officials] p g the divorce decree’s were misinterpreting visitation provisions, she could have sought a modification of the decree in state court at any time.” i ”

Custody Disputes: Stay Out of it!

• Refuse to offer opinions • Decline interviews with attorneys • Refuse service of subpoenas during school h l time ti • Consider motion to quash q • Strictly observe FERPA

Custody Disputes: If you’re in it • Stick to your expertise – As an educator – Not a psychologist/ social i l worker k

Release of Children

Release of Children • FERPA: Non Non-custodial custodial parents have same rights as custodial parents – Unless U l there th iis evidence id off a legally l ll binding document that specifically revokes rights. (34 C.F.R. 99.4) • Pauleyy v. Anchorage g Sch. Dist.,, 31 P.3d 1284 (Ala. 2001)

Interviewing Students

Interviewingg Students • Greene v. v Camreta, Camreta 588 F.3d F 3d 1011 (9th Cir. 2009) • In-school In school interview of suspected child sexual abuse victim/student unconstitutional in the absence of a warrant, court order, parental consent, or exigent e igent circumstances. circ mstances

Interviewingg Students • U.S. Supreme p Court – Mayy 26,, 2011 – Case is moot – Student moved to Florida Florida, was almost 18, and would graduate soon.

– Supreme S C Courtt vacated t d ruling li th thatt CPS worker must obtain a warrant before i t i i suspected interviewing t d child hild abuse b victim at school

Interviewing Students • Interview Policies – Lots of discretion • Interview only = school policy • Arrest, custody, warrant or subpoena = immediate access • Notice to Parents – Parental Demands Discretion except: – Abuse/neglect – Criminal Activity by parent – Delay = public safety risk

Interviewingg Students • Section Sect o 79 79-294: 9 : Thee school sc oo iss required equ ed to contact parents when student is released to a peace officer “except except when a minor has been taken into custody as a victim of suspected child abuse.” abuse.

• Release Form

Interviewingg Students • HHS • Without a court order, case workers are not legally entitled to access to students. students • Legal Guardian order = treat like a parent • Policyy issue for board

Child Abuse

What is Child Abuse?

A person commits child abuse if he or she knowingly, intentionally, or negligently causes or permits a minor child to be: (a) Placed in a situation that endangers his or her life or physical or mental health; (b) Cruelly confined or cruelly punished; ((c)) Deprived p of necessary y food,, clothing, g, shelter,, or care;; (d)Left unattended in a motor vehicle if such minor child is six years of age or younger (e) Placed in a situation to be sexually exploited by allowing, encouraging, or forcing such minor child to solicit for or engage in prostitution, debauchery, public indecency, or obscene or pornographic photography, films, or depictions; or (f) Placed in a situation to be sexually abused.

When to Report p Child Abuse When any school employee or other person has reasonable cause to believe that a child has been subjected to child abuse or neglect or observes such child being subjected to conditions or circumstances which reasonablyy would result in child abuse or neglect, he or she p such incident or cause a report p of shall report child abuse or neglect to be made to the proper law enforcement agency or to the department on the toll-free number.

Reporting Child Abuse The Report • Can be made orallyy byy telephone p • Include your name and address • Should Sh ld b be ffollowed ll db by a written itt reportt

Reporting p g Child Abuse The Report should include the following, if available: • address and age of the abused or neglected child • address of the person or persons having custody of the abused or neglected child • the nature and extent of the child abuse or neglect or the conditions and circumstances which would reasonably result in such child abuse or neglect • any evidence of previous child abuse or neglect including the nature and extent • any other information which in your opinion may be helpful in establishing the cause of such child abuse or neglect • the identity of the perpetrator or perpetrators.

Immunityy From Liabilityy Any person participating in an investigation or the making of a report of child abuse or neglect required by law or participating in a judicial proceeding resulting therefrom shall be immune from any liability, civil or criminal, that might otherwise be incurred or imposed, except for maliciously false statements.

Whyy Report p Child Abuse?

In addition to anyy ethical and social obligations and penalties, the failure to report child abuse or neglect as required by law subjects you to up to 3 months in jail, a $500 fine, or both.

Report p from HHS The person in charge of a school making a legally mandated report of child abuse or neglect shall receive a summary of the findings of and actions taken by the department in response to the report upon request. The amount of detail such summary contains shall depend on the source of the report of child abuse or neglect and shall be established by regulations of the department.

Child Abuse Tips p • Review and follow your district’s chain of command d and d reporting i policy li p • Just the Facts - Don’t Offer Opinions • Do not try to decide if the allegations are true or false - Report!

• Always report possible or suspected abuse • Use U ttrained i d professionals f i l to t investigate i ti t

Cyberbullying

What can staff do?  Keep “Responding and Reporting” separate in your mind  Focus on Small Stuff  Talk to kids about tech  Talk to kids about managing anger  Start St t with ith elementary l t kids kid  Communicate to kids that you care about this issue  Enlist kids

If you discover cyberbullying  Do not close your eyes  Report R t tto administration d i i t ti asap  Document ocu e t everything eve yt g