Transcript Slide 1

SCHOOL LAW
UPDATE!
A brief overview of what was hot, and
what was not in 2008 – and a peek at
where we may be heading…
Elizabeth Eynon-Kokrda
[email protected]
BAIRD HOLM, LLP
Supreme Court 2007-2008
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The 2007-2008 U.S. Supreme Court term: intriguing and unusual
For the first time in over 65 years, the Supreme Court expounded on
the 2nd Amendment (gun rights) and on the contemporary relevance
of the exhaustion doctrine in patent law.
The Court also addressed issues that resulted in unusual justice
alignments, leaving commentators wondering whether the notion
that a strictly ideological, conservative Court following the Roberts
and Alito appointments was accurate
 Boumediene v. Bush, the Guantanamo detainee case
 Kennedy v. Louisiana, the execution for child rape case
Both thought to be liberal opinions
In 2007-2008, the Court witnessed considerably fewer 5-4 splits
than the year prior - as only 17% of cases ended in this manner.
Surprisingly, unanimity also decreased.
 Nine-to-zero decisions dropped from 25% last term to 18% this
term, though the number of dissenting votes per decision stayed
nearly steady.
Supreme Court: possible cases
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Borden v. School Dist. of Twp. of East Brunswick, N.J student initiated
religious acts - faculty's silent gestures in support
Safford U.S.D. #1 v. Redding strip search of student - qualified immunity
Roberts v. Center for Bioethical Reform freedom of speech - graphic display of
aborted fetuses outside school
Forest Grove Sch. Dist. v. T.A. IDEA - tuition reimbursement for parents who
unilaterally place child in private school
Horne v. Flores adequacy of state funding on English language learner programs –
state’s compliance with Equal Educational Opportunity Act
Curry v. Hensinger student speech - cards with religious message affixed to goods
"sold" in school-sponsored marketing exercise
Lowery v. Euverard dismissal of high school student from athletic team in
retaliation for criticism of coach
Wilcox v. United States ex rel. Stoner False Claims Act - qui tam suit against
state officials - 11th Amendment
Fitzgerald v. Barnstable Sch. Comm. sex discrimination - exclusivity of Title IX's
implied private right of action Oral Argument 12/2/08
Ysura v. Pocatello Educ. Ass'n payroll deductions for political activities - state ban
Argued 11/3/08
Novato U.S.D. v. Smith student speech - fighting words
What’s Pending…
Pleasant Grove City v. Summum,
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Religious Monuments: Be Careful What you Ask
For….
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Summum (established 1975) want the "Seven Aphorisms of
Summum" in a public park that already is home to a Ten
Commandments display.
The Summum argued, and a federal appeals court agreed, that
Pleasant Grove can't allow some private donations in its public
park and reject others.
The worry: a ruling for the Summum would allow almost anyone
to erect a monument in a public park, or lead to the removal of
war memorials and other longstanding displays.
The Justice Department’s position: governments act almost as
museum curators when they decide to place some monuments
in public parks and not others.
What’s Pending…
Crawford v. Metropolitan Government of Nashville and Davidson County
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Title VII retaliation protections – Do they apply to people who
haven’t themselves complained about workplace discrimination?
Vicky Crawford was fired in 2003 after more than 30 years as school district
employee. She did not file a complaint about harassment. But she said she had been
subject to unwanted sexual advances when she was interviewed by investigators for
the school district who were looking into other employees' allegations against the
director of employee relations.
Crawford v. Metropolitan Government of Nashville and Davidson County involved a
former employee’s claim of retaliatory termination because of her passive cooperation
in an internal sexual harassment investigation.
The only doubt at the end of arguments was how broadly the Court would rule for
the employee.
The Bush administration is supporting Ms. Crawford. Lisa Blatt, a Justice Department
lawyer, warned the Court about the consequences of a ruling against Crawford.
“Witnesses simply are going to be afraid to fully cooperate if they're not given
protection,” said Ms. Blatt.
However, Justice Antonin Scalia warned that a broad ruling for Crawford would
frustrate employers' efforts to get rid of unproductive workers.”Any employee smart
enough to come in and testify has a guaranteed job,” he said. “It's about like being a
federal judge.”
The Eighth Circuit
SAGE v. Osseo Area Sch. - Dist. No. 279, No. 07-3576 (8th Cir. Aug.
29, 2008)
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The U.S. Court of Appeals for the Eighth Circuit (AR, IA, MN, MO,
ND, NE, SD) upheld a Minnesota federal district court’s order
affording a gay student club the same access provided to other noncurricular high school clubs.
The Eighth Circuit agreed with the lower court that some student
groups designated by the school as “curricular” actually were
noncurricular under the federal Equal Access Act (EAA) but, in
violation of that act, were given greater access than was given
Straights and Gays for Equality (SAGE).
Under Osseo Area Schools – District No. 279’s policy, student groups
are classified as either curricular or noncurricular. Unlike curricular
groups, noncurricular groups may meet only before and after school,
may only use a community bulletin board or place a poster outside
their meeting place, do not receive school funds, and cannot engage
in fundraising or field trips.
SAGE, cont.
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The Eighth Circuit stated that the issue was whether the district court had
correctly determined that the student groups that received more favorable
access than SAGE also were noncurricular, thus triggering the EEA.
While conceding that the EAA does not define “noncurriculum-related,” the
appeals court noted the U.S. Supreme Court interpretation as “any student
group that does not directly relate to the body of courses offered by the
school” and agreed with the lower court that the school’s Spirit Council had
been mislabeled curriculum-related when it actually is noncurriculumrelated.
Although under Board of Education of the Westside Community Schools v.
Mergens, 496 U.S. 226 (1990), “student government may well be
curriculum related,” the Eighth Circuit found it does not follow that every
student group labeled as a subgroup of student government automatically
is curriculum-related. This would allow for easy circumvention of the EAA,
the court warned, by identifying favored groups as subgroups of student
government. Mergens carefully limited the designation of a school’s student
government as curriculum-related “to the extent that [the group] addresses
concerns, solicits opinions, and formulates proposals pertaining to the body
of courses offered by the school.” Here, by contrast, the Spirit Council’s
function was social activity planning.
The Eighth Circuit
Lowry v. Watson Chapel Sch. Dist., Nos. 07-3437/08-1139 (8th Cir.
Sept. 2, 2008)
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An Arkansas school district violated students’ First Amendment free speech
rights by banning their wearing of arm bands at school in protest of the
district’s dress code.
The ruling also affirmed the lower court’s issuance of a permanent
injunction prohibiting school officials from disciplining students for wearing
the arm bands and the award of $37,500 in attorneys’ fees, even though
the plaintiffs had only recovered nominal damages.
On Oct. 6, 2006, 31 Watson Chapel School District (WCSD) junior high and
high school students wore the armbands to protest a dress code requiring
them to wear khaki pants with belt loops and a white polo-style shirt with
two or three buttons. At least 24 of the students were punished. Three of
them, with their parents, filed suit in federal district court, alleging that
school district officials had violated their First Amendment rights.
Prior to trial, WCSD acknowledged that: (1) the discipline was imposed
because the armbands signified disagreement with the dress code; and (2)
the wearing of the armbands caused no material disruption or substantial
interference with school operations.
Based on those stipulations, the district court ruled that WCSD had violated
the students' rights and held a trial only on the issue of damages.
Lowry, cont.
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The Eighth Circuit affirmed.
The court rejected WCSD’s attempt to distinguish Tinker on the basis of
the fact that in Tinker the students wore armbands to protest the
Vietnam war, while here they merely protested a dress code. “Whether
student speech protests national foreign policy or local school board
policy is not constitutionally significant,” the court held.
The court also concluded that none of the circumstances that led to
modification of the Tinker standard in the Supreme Court’s subsequent
rulings in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986),
Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), and Morse
v. Frederick, 127 S. Ct. 2618 (2007) were present in the current case.
The Eighth Circuit went on to conclude that the district court had
properly weighed the factors for issuing its injunction, including
balancing the harms to the parties, and that the plaintiffs were entitled
to attorneys’ fees even though they only recovered nominal damages,
because the fact that obtaining the injunction was not “readily reducible
to a sum of money” did not make their victory technical or de minimus.
Nuts
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Washington student charged with using peanut butter in assault on
allergic classmate
Joshua Hickson, a student at Wenatchee High School, spread peanut butter on the
forehead of a student he heard has a peanut allergy.
The alleged victim of the attack told Joshua he was allergic to peanut butter and he
“shouldn’t do that.” According to the police report, Joshua then got more peanut
butter on his fingers and again put it on the victim. No allergic reaction ensued.
The victim’s parents did not want to press charges. The police said they believed a
crime had been committed and produced a report that was forwarded to the city
attorney.
Other assaults by peanut butter have been reported. An eighth-grader in Kentucky
was charged with felony assault in April for putting peanut butter cookie crumbs in
the lunch box of a classmate with an allergy.
In July, a woman in Ohio was charged with assault for throwing peanuts at a man
she knew was allergic to them.
In Rhode Island, the state Legislature in 2007 passed a peanut law requiring schools
to have signs at all entrances to the school and cafeteria stating that a student at the
school is allergic to peanuts or other nuts. The law bans schools from selling peanuts
in the cafeteria and requires the designation of a nut-free lunch table and nut-free
classrooms.
Nebraska Update
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The Nebraska constitutional amendment prohibits state
and local governments from giving preferential treatment
to people on the basis of race, sex, ethnicity or national
origin
Do we need to scour programs to see if they violate a
ban on affirmative action?
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A wide range of programs aimed at boosting diversity may be
affected, from a math camp for high school girls, to Native
American Day, to recruitment of foreign students, to grants that
may use race as a factor…
The ballot victory for affirmative action opponents is in
state court to challenge the validity of petition signatures
– the allegation is they were gathered using a “pattern
of fraud and illegality.”
Open Meetings: Bligh v. Douglas Cty. Sch. Dist. No. 0017
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The Nebraska Court of Appeals reversed a teacher's dismissal when it found the
Millard School Board violated the Open Meetings Law when it made its decision in a
closed session.
The case involves the 2006 firing of Tanya Bligh, who was a teacher at Russell Middle
School. Following four days of hearings, the board determined that Bligh was an
incompetent teacher and failed to meet Millard's performance standards.
But in terminating Bligh's contract, the board voted in closed session.
The Board announced the decision in open session, but failed to actually hold the
vote in open session.
Neb. Rev. Stat. § 79-829 (Reissue 2003) specifically provides that a teacher’s contract
shall be deemed continuing and remain in full force unless the school board “by a
vote of the majority of its members” determines that the contract should be
terminated.
Nebraska law requires the formal action of a school board in terminating a teacher's
contract to be taken in open session. We conclude that the actual vote of the school
board on the issue of terminating a contract is “formal action” within the
contemplation of the statute.
Because the Board failed to hold its vote on Bligh's contract in open session, the
judgments of the district court affirming the Board's termination of Bligh's contract
was reversed and the case remanded with directions to vacate the decision of the
board.
Federal Regulations: E-Rate
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The FCC is considering expanding technology eligible for Erate funding
The Federal Communications Commission (FCC) sought comment on
whether the following services should be eligible for funding under
the E-rate program, which supports technology in schools and
libraries: filtering software, a broader classification of basic
telephone service, dark fiber, text messaging, firewall service, antivirus/anti-spam software, scheduling services, telephone broadcast
messaging, and certain wireless Internet access applications.
The FCC also seeks comment on whether to retain interconnected
Voice over Internet Protocol (interconnected VoIP) as an eligible
service. Comments are due by September 18, 2008, and reply
comments are due by October 3, 2008.
FCC proposed rule, 73 Fed. Reg. 48,352 (Aug. 19, 2008)
Federal Law Changes: The ADA
Public Law 110-325
Signed into law Sept. 25, 2008
Effective January 1, 2009
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To state a claim for disability discrimination, a plaintiff must show:
(1) he is an individual with a disability within the meaning of the
Americans with Disabilities Act ("ADA"); (2) he is qualified to
perform the essential functions of his job, with or without
reasonable accommodations; and (3) he suffered an adverse
employment action "because of" a disability. Kellogg v. Union Pacific
R.R. Co., 233 F.3d 1083, 1086 (8th Cir. 2000); Buckles v. First Data
Resources, 176 F.3d 1098, 1100 (8th Cir. 1999).
To start, a plaintiff must prove he is a qualified individual with a
disability. The ADA defines a disability as: "(A) a physical or mental
impairment that substantially limits one or more of the major life
activities of such individual; (B) a record of such an impairment; or
(C) being regarded as having such an impairment." 42 U.S.C. §
12102(2). Merely having a physical or mental impairment is
insufficient to be considered disabled under the ADA. Rather, to
constitute a disability, "the impairment must substantially limit one
or more of the individual's major life activities." Id.
PL 110-325 (ADA), cont.
Findings
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In enacting ADA, intended to provide broad protections
Holding in Sutton v. United Airlines (1999) et al have narrowed the scope of
protection intended to be afforded by the ADA, thus eliminating protections
Congress intended
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or mental impairment with medication and assistive devices are not individuals with
a disability
Holding in Toyota Motor Mfg, Kentucky, Inc. v. Williams (2002) et al further
narrowed the broad scope of protection intended by the ADA
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Sutton held that individuals who are able to mitigate the symptoms of their physical
Toyota held that the ADA needed to be “strictly interpreted,” that individuals faced a
“demanding standard for qualifying as disabled,” and that “major life activities”
including only those activities of “central importance to daily life”
This interprets the term “substantially limited” to “require a greater degree of
limitation than required by Cong.”
Current EEOC regs defining “substantially limited” as “significantly restricted” are
inconsistent with Cong. Intent and too high
Result of these cases is that lower courts have incorrectly found that people
with a range of substantially limiting impairments are not people with
disabilities
PL 110-325 (ADA), cont.
Purposes
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Reinstate the broad scope of protection under the ADA
Reject requirement in Sutton that whether Q. of “substantially
limits” is determined with reference to ameliorative effects of
mitigating measures
Reject Toyota’s standards and convey Cong. Intent that
Toyota “created an inappropriately high level of limitation
necessary to obtain coverage under the ADA”
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“The primary object of cases brought under the ADA should be
whether entities covered under the ADA have complied with their
obligations” and “convey that the question of whether an
individual’s impairment is a disability under the ADA should not
demand extensive analysis.”
PL 110-325 (ADA), cont.
Expands the definition of “major life activities” to include, but not be limited to:
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Caring for oneself
Performing manual tasks
Seeing
Hearing
Eating
Sleeping
Walking
Standing
Lifting
Bending
Speaking
Breathing
Learning
Reading
Concentrating
Thinking
Communicating
Working
Is there anything not on this list?!
PL 110-325 (ADA), cont.
For the first time defines “major life activity” to also include
“major bodily functions,” including, but not limited to:
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Functions of the immune system
Normal cell growth
Digestive, bowel, bladder, brain, respiratory, circulatory, endocrine,
and reproductive functions
Expands definition of “being regarded as having such an
impairment”
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Individual is “regarded as” if he or she establishes that he or she has
been ‘subjected to an action prohibited under this Act’
(discrimination) because of an actual or perceived physical or mental
impairment whether or not the impairment limits or is perceived to
limit a major life activity
“Regarded as” does not apply to impairments that are transitory (6
months or less) and minor
PL 110-325 (ADA), cont.
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Impacts on employers:
More people with things like diabetes, epilepsy, heart disease, mental disabilities, and
cancer will not fall under the umbrella of the ADA
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Expansion of definition of disability also will likely result in an increase in the number
of lawsuits filed against employers
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Disability should be considered without considering mitigating measures
Depression and epilepsy – where disabilities only occur in episodes, they are assessed when
their symptoms are present
Employers previously had been very successful in securing dismissals of ADA claims based
on argument that plaintiff was not an individual with a disability
More employees will be considered disabled and will not need medical expert to prove
disability
Expansion of the definition of disability will make it more difficult for employers to qualify
for summary judgment
With the expanded number of conditions which qualify as a disability, employers will
be required to make reasonable accomms in a greater variety of situations
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More accommodation requests
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Since more employees are now covered under the law, employers must treat all requests carefully
More focus on the interactive process
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Eighth Circuit: “[F]or purposes of summary judgment, the failure of an employer to engage in an
interactive process to determine whether reasonable accommodations are possible is prima facie
evidence that the employer may be acting in bad faith.” Fjettlesad v. Pizza Hut of America (8th Cir.
1999).
Section 504 and the ADAAA
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Section 504 establishes that disabled/ "medically fragile" students, whose
impairments may not limit their ability to learn, have a right to a free,
appropriate public education. School districts have to provide the necessary
educational services, aids and accommodations to ensure this right.
WHO IS PROTECTED UNDER
SECTION 504?
Students whose physical or mental impairments substantially limit one or
more "major life activities," such as caring for oneself, seeing, breathing,
learning and walking, are protected by Section 504.
Section 504's definition of a disabling condition is broader than that of the
Individuals with Disabilities Education Act (IDEA), which describes a
disabled child as one whose impairment requires special education and
related services because the disability limits the student's ability to learn.
Medically fragile students, on the other hand, often need not and should
not be placed in special education programs as called for in IDEA. Special
education students, however, are also Section 504 eligible.
Section 504 and the ADAAA, cont.
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It is important to understand that the ADA
and Section 504 define disability in a
similar way, and therefore, ADA case law
is applicable to 504 cases. Because the
harmful ADA cases were also applicable to
504, the reforms apply to both laws.
These reforms include the following
highlights.
Section 504 and the ADAAA, cont.
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Unlike the situation with employment, most school districts
appropriately applied the law to 504 eligibility questions, and
accommodated a range of students with disabilities. Thus, the
ADAAA will not make any substantial changes in what most districts
already do. But the law provides an important remedy for those
children who have inappropriately been denied 504
eligibility. COPAA had received reports of some school districts
denying 504 eligiblity to children with diabetes, life-threatening food
allergies, learning disabilities, ADHD, Aspergers Syndrome, and
other disabilities. For example, one school district argued that
because a 6yo with a life-threatening nut allergy could care for
himself about as well as other 6yos, and because he could breathe
just fine when not suffering from anaphylaxis, he wasn't
substantially limited and didn't have a disability under 504. Other
504 situations involved children with disabilities who are unable to
obtain 504 plans with appropriate behavioral supports and access to
appropriately challenging school work.
Federal Regulation: FMLA
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The Department of Labor has issued final regulations under the Family
Medical Leave Act of 1993.
The final regulations are over 200 pages long and cover numerous topics
that affect school districts including: the definitions of serious health
condition, continuing treatment, and chronic condition; use of intermittent
leave; substituting paid leave for unpaid FMLA leave; consequences for
interfering with FMLA rights; waiver of FMLA rights; employer notices;
consequences of employer's failure to designate leave as FMLA leave;
medical certifications; and fitness for duty requirements.
A notable change in the final rules is that employers will be able to require
employees to follow call-in policies to provide notice of planned leave
instead of employees being able to wait until two days after an absence to
notify the employer.
The final regulations also address the new military leave entitlements which
provide additional leave to employees who provide care to covered service
members with a serious injury or illness or because of qualifying exigencies
arising out of a covered service member's call to active duty. The final rule
is effective January 16, 2009.
73 Fed. Reg. 67934 (Nov. 17, 2008)
Federal Regulations: ESEA
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The Department of Education issued a notice of final interpretations under
Title III of the Elementary and Secondary Education Act as amended by the
No Child Left Behind Act.
These final interpretations address the annual administration of English
language proficiency assessments (ELP) for limited English proficient (LEP)
students served by Title III, the establishment of annual measurable
achievement objectives (AMAOs), and the implementation of Title III
accountability provisions.
More specifically, the final interpretations cover the following 10 topics:
annual ELP assessment of LEP students; use of annual ELP assessment
scores for AMAOs 1 and 2; students included in Title III accountability;
exclusion of Title III-served LEP students “without two data points” from
AMAO-1; attainment of English language proficiency and “exiting” the LEP
subgroup; use of minimum group size in Title III accountability; all LEP
students, adequate yearly progress, and AMAO 3; AMAOs and the use of
cohorts; determining AMAOs for consortia; and implementation of corrective
actions under Title III.
The final interpretations are effective November 17, 2008.
73 Fed. Reg. 51,828,(Oct. 17, 2008)
Federal Regulations: Title I
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Final Title I regulations seek to clarify and strengthen current Title I
regulations in the areas of assessment, accountability, public school choice,
and supplemental educational services (SES).
The most far-reaching change in these regulations is in how states, school
districts, and schools are held accountable for graduating students from
high school.
Additionally, new requirements governing SES and public school choice are
intended to ensure that parents and students are informed of their options
in a timely and effective manner and that school districts effectively use
funding.
Changes addressing the inclusion of student subgroups in school and school
district adequate yearly progress determinations are intended to ensure
greater accountability for the achievement of all groups of students.
Amendments to the regulations governing restructuring of schools in
improvement are intended to ensure that school districts take significant
reform actions.
Requiring the inclusion of state data from the National Assessment of
Educational Progress on state and local report cards will provide parents
and the public with additional information about student performance.
These regulations are effective November 28, 2008.
73 Fed. Reg. 64436 (Oct. 29, 2008)
Federal Regulation: 403(b)
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On July 26, 2007, the IRS released final 403(b)
regulations for public school employee
retirement plans. The final rules represent a
significant increase in administrative
responsibility for school superintendents and
districts. For the first time, they will assume full
responsibility for administering public school
systems’ retirement savings plans. The
regulations, which are published in the July 26
Federal Register will, for the most part, take
effect on Jan. 1, 2009.
Federal Regulations: FLSA
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Deadline for FLSA comments extended
The Department of Labor (DOL) has extended by 15
days the period for filing written comments on proposed
revisions to regulations issued under the Fair Labor
Standards Act (FLSA) that have become out of date
because of subsequent legislation or court decisions.
Among other things, FLSA governs minimum wage,
overtime, and other pay requirements. The proposed
revisions are at the second link below. Comments are
due by September 26, 2008.
DOL notice of extension, 73 Fed. Reg. 49,621 (Aug.
22, 2008)
DOL proposed rule, 73 Fed. Reg. 43,654 (July 28,
2008)
Federal Notices: Religious
Discrimination
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Citing changing demographics and a steady increase in complaints
from people of faith, the U.S. Equal Employment Opportunity
Commission (EEOC) last week released an updated compliance
manual on religious discrimination in the workplace.
The agency issued the guidance after consultation with religious
groups, employers, and labor organizations. The number of
religious-discrimination charges reported to the agency has more
than doubled over the last 15 years.
The new manual provides safeguards for workers who request time
off for religious observances, and protects workers whose faith
requires they wear specific religious garments, such as hijab.
Muslims have faced the sharpest increase in workplace
discrimination of any major religious in recent years.
Between 1997 and 2007, the number of discrimination charges filed
by Muslims more than doubled, from 398 to 907.
Religious Discrimination, cont.
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The Section addresses what constitutes “religion” within the
meaning of Title VII; disparate treatment based on religion; the
requirement to reasonably accommodate religious beliefs and
practices; religion-based harassment; and retaliation. The Section
also provides guidance on the sometimes complex workplace issues
involved in balancing employees’ rights regarding religious
expression with employers’ need to maintain efficient, productive
workplaces.
The EEOC issued this section in response to an increase in charges
of religious discrimination, increased religious diversity in the United
States, and requests for guidance from stakeholders and agency
personnel investigating and litigating claims of religious
discrimination.
Religious discrimination charge filings with the EEOC nationwide
have risen substantially over the past 15 years, doubling from 1,388
in Fiscal Year 1992 to a record level of 2,880 in FY 2007
What to expect in 2009?
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It’s the economy, to begin with…
NE has $593 million cash reserve fund
The Nebraska Economic Forecast Advisory Board met in
October and projected relatively modest, but still positive
increases in state revenue: $49 million for FY2009-10
and $117 for FY2010-11
BUT the Tax Rate Review Committee predicts a $377
million shortfall for the 2009-11 biennium budget.
Against this backdrop, the state aid formula (TEEOSA) is
projected to require an increase of $73 million ($60 of
which comes from cuts last year…) for 2009-10 to fully
fund the formula, as revised by LB 988 (2008).
The “new” Legislature
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Long session
Increase in introduced legislation expected
Changes on the Education Committee
And to end with…
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The economy at the federal level will drive
funding for promised initiatives in NCLB,
IDEA, Medicaid, etc.
Innovations in teacher pay may be part of
the picture: DC story; OEA plan