Transcript + Legal Update 2015 Presented by Lusk & Albertson L’Anse Creuse Public Schools Administrator In-Service Tuesday, August 18th www.LuskAlbertson.com/LCPS.

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Legal Update 2015
Presented by Lusk & Albertson
L’Anse Creuse Public Schools
Administrator In-Service
Tuesday, August 18th
www.LuskAlbertson.com/LCPS
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Distribution of Topics
Social Media
Searching Student Devices
Guns in Schools
Evaluation
Layoff & Recall
Teacher Placement
Kevin T. Sutton
Robert T. Schindler
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Recent Developments
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House Bill 4791
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What?
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Requires all public school districts to have social media policy
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“Shall adopt and implement a policy regulating social media
interaction between pupils and school personnel”
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Must be posted to District web site
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Board “shall consult” with school personnel in developing
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Notify school personnel once adopted
When?
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Introduced July 15, 2015
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Hoped to be effective 15-16 SY; not likely
How?
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Districts will have to develop own policies that address conduct
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How restrictive will policies be?
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Fundamental challenges
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Why is this Needed?
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Prevalence of digital communications
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Proliferation of student-staff issues
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Absence of firm guidance for educators
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Misunderstanding regarding limitations on free speech
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HEADLINES …
Disney confirms
selfie stick ban at
theme parks
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Dealing with Online Speech
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It’s going to happen, how do we deal with it?
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District Policy
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Student Code of Conduct
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Digital Communications Policy, if applicable
Beyond School Rules
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First Amendment implications/analysis
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This is Speech After All
… Right?!?
 Tinker
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v. Des Moines Ind. Sch. Dist. (1969)
USSC recognizes students’ right to free speech on and off campus
Students have right to free speech unless it “materially disrupts
class work or involves a substantial disorder or invasion of the
rights of others”
 Hazelwood
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Sch. Dist. v. Kuhlmeir (1980)
First Amendment protections did not compel a public school to
affirmatively sponsor speech that conflicts with its “legitimate
pedagogical goals” even though same speech could not be
regulated outside of school
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Analysis of Speech
Key Question:
Does the speech from outside school walls
cause a substantial disruption in school?
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If YES, discipline may be appropriate
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If NO, discipline not likely appropriate
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Basic Principles Extracted
 Assessing
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a “Substantial Disruption”
Use Caution
Be Realistic
Inconvenience Not Enough
Embarrassment Not Enough
A “Buzz” Not Enough
Adults Need Thicker Skin
Key Elements
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Violence
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Threats
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Safety
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Criminal Activity
Courts Don’t Always Cooperate
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The Case?
Taylor Bell aka
T-Bizzle
+ Bell v. Itawamba School District
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Facts
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5th Circuit Court of Appeals
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2-1 Decision … in favor of “T-Bizzle”
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[W]e decide only that … Tinker … would not afford the School Board a
defense for its violation of Bell’s First Amendment rights because the
evidence does not support a finding, as would be required by Tinker,
that Bell’s song either substantially disrupted the school’s work or
discipline or that the school officials reasonably could have
forecasted such a disruption.
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For these reasons, … judgment is RENDERED in favor of Taylor Bell
against the School Board on his First Amendment claim. The case is
REMANDED, and the district court is DIRECTED to award Bell nominal
damages, court costs, appropriate attorneys’ fees, and an injunction
ordering the School Board to expunge all references to the incident at
issue from Bell’s school records.
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Entire 5th Circuit to rehear case  The panel said the Supreme Court
"has not decided whether, or, if so, under what circumstances, a
public school may regulate students' online, off-campus speech,
and it is not necessary or appropriate for us to anticipate such a
decision here."
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Searching Accounts/Devices
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Internet Privacy Protection Act (“IPPA”)
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Passed in 2012
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Sec. 4. An educational institution shall not do any of the following:
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(a) Request a student or prospective student to grant access to,
allow observation of, or disclose information that allows access
to or observation of the student’s or prospective student’s
personal internet account.
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(b) Expel, discipline, fail to admit, or otherwise penalize a
student or prospective student for failure to grant access to,
allow observation of, or disclose information that allows access
to or observation of the student’s or prospective student’s
personal internet account.
NOTE: Sec. 3 provides similar restrictions for employers
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Search & Seizure
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Standard for Police
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Standard for School Administrators
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Warrant for search
Two-Step Inquiry [TLO v. New Jersey]
 Reason to suspect student violated SCC?
 Reason to suspect evidence of violation of SCC exists in the area you want to
investigate/look?
Confirmed by GC v. Owensboro Public Schools (March 2013)
Things v. Information
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Things
 Search for Stolen iPad / Weapon / Drugs
Information
 Search for Texts / Photos
Consent Issues
 Can be addressed via policy
 Reasonable expectation of privacy?
 Use what you have at your disposal!
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Recent Developments
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Current state of Michigan law
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Legal challenges
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Recent decisions
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A solution on the horizon?
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Updates on important labor
law issues
Teacher Placement, Evaluation, and Layoff and Recall
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Teacher Placement
Can we really put them wherever we want???
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Teacher Placement
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2011 Public Act 103 added “teacher placement” to the list of
“prohibited subjects of bargaining”
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A “prohibited subject of bargaining” is described by the
statute (MCL 423.215) as follows:
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(3) Collective bargaining between a public school employer and
a bargaining representative of its employees shall not include
any of the following subjects:
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(4) . . . the matters described in subsection (3) are prohibited
subjects of bargaining . . . and, for the purposes of this act, are
within the sole authority of the public school employer to
decide.
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Teacher Placement
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Significance of Prohibited Subjects:
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Either party to negotiations may refuse to discuss a prohibited
subject (although may voluntarily do so)
Public employer may act unilaterally with respect to any
prohibited subject without bargaining to agreement or impasse
Neither party may maintain to impasse a proposal pertaining to
a prohibited subject
Any provision in a collective bargaining agreement covering a
prohibited subject is not enforceable
Either party may refuse to continue or carry over within a new
contract any existing provision pertaining to a prohibited subject
A party may not insist on the inclusion of a prohibited subject in
bargaining once the other side has notified it will not bargain
over it
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Teacher Placement
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Specifically, the prohibited subject relates to:
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Any decision made by the public school employer regarding
teacher placement, or the impact of that decision on an
individual employee or the bargaining unit
The Michigan Court of Appeals has recently interpreted this
language very broadly in Ionia Public Schools v Ionia
Education Ass’n, COA Case No. 321728 (July 28, 2015).
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Teacher Placement
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The Ionia Court held that the broad language used
demonstrates as follows:
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the Legislature intended to remove from the ambit of bargaining
any decision concerning the assignment or placement of
teachers, and that any decision-making about teacher placement
or assignments is to be within the sole discretion of the
employer. The broad language used in the statute necessarily
includes any decision-making process as well; consequently,
policies and procedures used to make teacher placement
decisions such as those at issue in the instant case undoubtedly
fall within the broad reach of "any decision" regarding teacher
placement. Therefore, the plain language of § 15(3)(j) precludes
bargaining over the bid-bump procedure, or any other procedure
utilized in teacher placement.
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Teacher Placement
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So what does this mean?
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School District has the sole and exclusive authority to make
placement decisions
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This relates to initial placement, voluntary or involuntary
transfers, or even hiring or promotion type decisions
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Any language currently contained in the CBA would be
unenforceable by the union
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Notice?
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Evaluation
What applies for 2015-16?
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Evaluation
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What do we already know?
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Evaluations system must:
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Be rigorous, fair, and transparent
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Must be developed with input from teachers and administrators
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Evaluate student growth using effective measures
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Student growth data must be a significant factor in evaluations
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Must be rated using four categories: highly effective, effective,
minimally effective, and ineffective
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Evaluation
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What’s new for 2015-16?
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50% of an evaluation must be based on student growth data
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Must use at least 3 years of data if available
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Year end evaluation must include goals for the next year
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First year probationer or teacher that received minimally
effective or ineffective must receive an individualized
development plan
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Evaluation
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What’s new for 2015-16 (cont.)?
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First year probationer or teacher that received minimally
effective or ineffective must receive a mid-year progress report
the following year
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Evaluations must be based on multiple observations
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A teacher rated ineffective 3 consecutive years must be
discharged
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A teacher rated highly effective 3 consecutive years may be
evaluated biennially
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Evaluation
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Importance of following the law:
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Garden City EA v Garden City PS (2013)
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No cause of action under section 1249
Summer v Southfield Public Schools (2015)
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Agree no cause of action, but if 1249 evaluation is used to make
a determination for a 1248 personnel decision, then whether
1249 was followed is pertinent to a cause of action under
section 1248.
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Layoff and Recall
Making decisions on who stays and who goes
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Personnel Decisions
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“Personnel Decisions” for “teachers” dictated by section 1248
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Under 1248:
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“personnel decision” includes layoff or recall or hiring after a staff or
program reduction
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The goal of personnel decisions is to “retain effective teachers”
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No teacher receiving an ineffective evaluation shall be given “any
preference that would result in them being retained over a teacher”
given any other evaluation
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Personnel Decisions
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Under 1248 (cont.):
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Effectiveness shall be measured by 1249 evaluation system;
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Personnel decisions shall be based on:
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1) Individual performance
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2) Significant, relevant accomplishments and contributions
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3) Relevant special training
Seniority or tenure cannot be a primary or determining factor, but may
be used if the 3 items above are all equal
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Personnel Decisions
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What recourse is there for a teacher subject to layoff or not
recalled?
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May not file a grievance/arbitration – prohibited subject of
bargaining
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May not seek review by the State Tenure Commission –
Baumgartner v Perry Public Schools (2015)
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May seek review by state circuit court – MCL 380.1248(3) and
Summer v Southfield PS (2015)
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Additional Questions?
Kevin T. Sutton
Direct: (248) 988-5695
Cell: (734) 377-7400
Email: [email protected]
Robert T. Schindler
Direct: (248) 988-5696
Cell: (248) 431-5401
Email: [email protected]