Hot topics nrcsa 2015 by KSB School Law

Sex, Drugs, & Honor Roll: Hot topics in Nebraska Education Law Steve Williams Bobby Truhe KSB School Law (402) 804-8000 steve@ksbschoollaw.com bobby@ksbschoollaw.com KSB School Law @SteveIsEsteban @btruhe

Hot Topics for 2015       

Social Media NPERS Contributions Age, Disability Discrimination Update Service Animals Transgender Gay Marriage Ban Overturned—Kinda Hazing and Locker Room Supervision

Social Media

How Common is Sexting? June 2014 survey by Drexel University 80 70 60 50 40 30 20

all teens

12‐14 y/o

In re Juvenile John Does (Fairfax Co. Va 2013)

Girls Snapchatted video to boy He forwarded screenshots to friends Three boys arrested at school Each charged with 12 counts of distribution of child pornography  Found guilty, appealing sentences    

Nebraska Law  Neb. Rev. Stat. 28-813 et. seq.  Makes sexting (images) a class IV felony for offenders under 19  Class IIIA felony for 19 and up  Both punishable by: • • •

Up to 5 years in prison and/or $10,000 fine Require sex offender registration

Criminal Implications  Affirmative Defense: •

the picture is only of the defendant;

• • • • • • •

defendant was younger than 19 picture is of someone at least 15 picture was taken voluntarily picture was given voluntarily picture contains only one child defendant hasn’t shared the picture; AND defendant didn’t coerce taking or sending

Yik Yak

NPERS Contributions

NPERS Contributions  February 20, 2015 Memo  NPERS treatment of compensation and fringe benefits  IRC and public retirement is “very complicated”  Violations result in significant tax consequences and costly correction

NPERS Contributions  Carefully structure Section 125, 403(b) and 457(b) plans  Flat salary = compensation  Cannot offer employee choice between flat salary (cash) and fringe benefit stipend (tax deferred retirement contribution) unless through 125, 403(b), or 457(b)

NPERS Contributions  Voluntary contribution (EE directed) to 125 = NPERS  Mandatory contribution (ER directed) to 125 ≠ NPERS  Schools cannot pay employee NPERS contributions except by deducting from employee’s salary

Walmart v. EEOC

Walmart v. EEOC  EEOC sued on behalf of former manager  Age (ADEA) and disability (ADA)  Supervisors frequently called him "old man" and "old food guy"  Diabetes diagnosis – reassignment request  Walmart refused to consider reasonable accommodation, fired him  Walmart settled for $150,000, training

Walmart v. EEOC  Be careful with “jokes” or “teasing” about age, race, sex, etc.  Harassment  Hostile work environment  Discrimination

Walmart v. EEOC  ADA – must participate in interactive process and provide reasonable accommodations for workers with qualifying disabilities.  Do not refuse to consider accommodation requests or to participate in interactive process  ADA and ADEA training for administrators

Service Animals

Service Animals  Courts and OCR not giving much weight to the regulations  Alboniga v. School Bd. Of Broward County  Now 7 y/o Anthony suffers cerebral palsy, spastic paralysis, seizures, can’t speak  Mom obtained service dog (Stevie) to assist Anthony if seizure or medical emergency

Service Animals  School required vaccinations, liability insurance, and a “handler”  Mom was original handler, then janitor was  Handler walks dog on leash next to A, takes dog outside to urinate, keeps kids from playing with dog

Service Animals  IEP did not require dog  School refused to be responsible for care and supervision of Stevie  Mom sues – disability discrim. and FTA  One requested accommodation: A attend school accompanied by Stevie without separate “handler”  Partial SJ for mom

Service Animals  Regulation - service animal shall be under control of its handler  Court - Stevie tethered to A in school is control by A over his service animal as animal’s handler. Allowing A to attend school with Stevie tethered to him would be a reasonable accommodation required of the School Board.

Service Animals  Regulation – School is not responsible for care or supervision of service animal.  “care and supervision” refers to routine or daily overall maintenance of a service animal.  Accommodating A by assisting him to lead Stevie outside to relieve himself is not part of that routine overall maintenance

Service Animals  New Hampshire – OCR 2013  Seizure alert service dog  School responsible for training school personnel who handle animal at school  Resolution agreement - district to contract with a trainer experienced with service dogs and provide in-school training for aides to keep the dog from disrupting class.

Transgender

The Legal Tension  U.S. and Nebraska law: “gender” not protected “Disability shall not include homosexuality, bisexuality, transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender-identity disorders not resulting in physical impairments, other sexual behavior disorders, problem gambling, kleptomania, pyromania, or psychoactive substance use disorders resulting from current illegal use of drugs”

 OCR/DOJ/EEOC/AG: “gender” is protected “[T]he Department of Justice will take the position in litigation that the protection of Title VII of the Civil Rights Act of 1964 extends to claims of discrimination based on an individual’s gender identity, including transgender status.”

 Perez v. Mortgage Bankers: Agency interpretive rules, the new law

Examples From Nebraska  Dance team  Physical education classes  Makeup and attire

NE Gay Marriage Ruling

Waters v. Ricketts: GMB Struck Down?  Held that NE’s ban was “gender discrimination”  If it looks like a duck…  Effects on Schools • • • •

Consider the FMLA Consider EHA plus-1 benefits Consider employment practices If upheld, no “state of celebration” argument

 Ban  Ruling from SCOTUS this summer

Hazing: It’s Happening •

Hazing “any activity by which a person intentionally or recklessly endangers the physical or mental health or safety of an individual for the purpose of initiation into, admission into, affiliation with, or continued membership with any organization…”

Hazing Includes â&#x20AC;&#x153;whipping, beating, branding, forced and prolonged calisthenics, prolonged exposure to the elements, forced consumption of any food, liquor, beverage, drug, or harmful substance not generally intended for human consumption, prolonged sleep deprivationâ&#x20AC;Śâ&#x20AC;?

Hazing Includes “…any brutal treatment or the performance of any unlawful act which endangers the physical or mental health or safety of any person…”

Davis v. Carmel Clay Sch. (7th Cir. 2014)

 Boys basketball team • “gooching” • Dragged freshman into shower • Grabbed and flashed • Bus incident  Court Dismissed Suit: • School did not know • When school discovered took action • Need for training not evident

Mathis v. Wayne Co. BOE (Tenn. 2011)

 Boys basketball team • “lights out” • “blindfolded sit-ups” • “pencil” and “marker” incidents  Court Ruled in Favor of Plaintiffs on Title IX Claim • Coach knew of “horseplay” • School deliberately indifferent through coach’s inaction

Hazing We’ve Seen in Nebraska  “Paddling” by upper classmen  “Freshmen eat a pepper” day  “Russian dick-lette”  12 cut challenge  “fishhooking”