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Graduating To Public Transportation

[October 14, 2014]  So a third grader wants to take the subway to school?  Or a 6th grader wants to take the commuter rail?  When is independent travel on public transportation okay?

By offering incentives like free services and reduced rates, cities across the nation are encouraging students to use public transportation as a means to travel to and from school.  The shift from school bus to local bus, however, raises new challenges for independent schools.  The threshold issue is the appropriate age for a student to travel on public transportation unaccompanied by an adult.

Little legal guidance exists on this particular issue.  There are few federal, state or municipal laws establishing a minimum age at which a child may travel on public transportation alone.  And only a few transit carriers – primarily those that offer interstate travel – have adopted rules regulating minor travel requirements.

In the absence of rules or regulations, independent schools should consider implementing best practices by adopting policies and protocols that address independent student travel requests.

Students’ safety is, of course, a paramount concern for independent schools.  In light of the myriad risks associated with unaccompanied minor travel, a school may want to deny all parental requests for permission for unaccompanied travel.  However, whether for medical, financial, personal or other reasons, the reality is that families may have to rely on students taking public transportation to and from school alone.  Thus, an absolute ban may be too restrictive.

If a school chooses to approve parents’ requests for unaccompanied travel, we recommend that the school adopt protocols and guidelines.  For example, a school may want to impose a minimum age or grade requirement.  Yet, the maturity of the student may be more relevant than biological age or grade.  Indeed, delays and cancellations are often associated with public transportation.  The ability of a student to handle unexpected situations will be critical to safe and reliable travel.  Therefore, adopting a policy that considers parents’ requests on a case-by-case basis by weighing various factors, such as maturity, may be an appropriate way to manage the various interests at stake.

Notably, a child without proper parental care or supervision may raise concerns of neglect.  We recommend that a school take into account the state-specific definition of neglect when evaluating all parental requests for unaccompanied student travel.  In sum, the policy should balance the parent’s request against the risks associated with the child’s safety.

As a best practice, we strongly encourage all schools (that permit students to travel unaccompanied to and from school) to obtain written authorization and a release of liability from legal guardians via a Transportation Permission Form.  Written authorization should be required even in a one-time situation.  The release might include language that the parent’s permission for the child to travel unaccompanied is based upon the parent’s personal belief that the child has the maturity and self-confidence to respond appropriately to any challenges that the child may encounter during the travel.  We recommend that the Transportation Permission Form specify the modes of transportation permitted, and be signed by both legal guardians.

In addition, we recommend that schools educate parents to follow these protocols:

  • Require the student to sit as close as possible to the bus operator or in the first rail car where the railcar operator’s cab is located;
  • Confirm that the student feels comfortable traveling alone and is familiar with the route;
  • Verify that the student understands where to wait for the bus/train, the protocol for boarding and exiting the bus/train, and pedestrian safety; and
  • Establish a plan for what to do in the event that the student misses the stop and in the case of an emergency.

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It might not occur to a school to develop an unaccompanied minor travel policy until an issue arises.  However, a well-thought out policy and carefully-drafted protocols will diminish the risks associated with students traveling alone to and from school.

Please feel free to contact a member of the Firm’s Education Practice Group if you have any questions about any state-specific or municipal-specific requirements, and best practices for unaccompanied minor travel request release forms, policies and practices.

Domestic Violence Leave Now Required In Massachusetts

[September 26, 2014]  As of August 8, 2014, Massachusetts employers with 50 or more employees must provide up to 15 days of unpaid leave in any 12-month period for employees’ activities related to being a victim of domestic violence, including seeking medical attention or legal services, securing housing, or attending court proceedings. Massachusetts thus joins more than 20 other states and municipalities requiring such leave. Employees of covered Massachusetts employers may take leave related to their own abuse or the abuse of a covered family member, including a spouse, child, parent, grandparent, grandchild, or sibling.

Employees must give advance notice of their need to use the leave, unless there is a threat of imminent danger to the health or safety of the employee or a member of the employee’s family. Employees must also first exhaust all personal, sick, annual, and vacation leave before receiving unpaid leave, unless the employer’s policy provides otherwise.

The law requires confidentiality for leave-related information. Employers must keep such information confidential and not disclose such information unless disclosure is requested in writing by the employee, ordered by a court, otherwise required by law or in the course of a law enforcement investigation, or necessary to protect the safety of the employee or others employed at the workplace.

Covered employers must notify employees of their rights and responsibilities under the law, including those related to notification requirements and confidentiality.

Similar to other types of job-protected leave, employees who take domestic violence leave are entitled to restoration to their original jobs, or equivalent positions, and are protected from retaliation after taking leave.

We recommend that employers familiarize themselves with the requirements of the law, including its confidentiality provisions, and consult with counsel to prepare a domestic violence leave policy and update their handbooks accordingly.

Summer Is Over, But Are The Dog Days Gone? Recommendations For Animal-Presence Policies On Independent School Campuses

[September 19, 2014]  Dog-friendly school campuses have become increasingly controversial in recent months. While there used to be two primary camps (those that encouraged a pet-friendly campus and those that prohibited pets altogether), the lines are getting more blurry (furry?) now. For example, a student may wish to bring the family ferret on campus for show-and-tell or a faculty member may want to nurture hamsters in the classroom to teach students about responsibility. Or a teacher, student, parent or visitor may require a service animal to accompany him or her while on campus.

Adopting written animal-presence policies and practices can help to ensure that a school responds to situations like these in a way that minimizes liability and risk, and maximizes compliance with relevant legal obligations as well as each school’s pet culture.

On the pro-pet side, advocates assert that pet-friendly policies offer benefits like reducing faculty, staff and student stress, improving employee job satisfaction and increasing the overall friendly atmosphere on campus. We see many schools allowing faculty members to keep puppies in the classroom for a few months. But would such a school allow a kitten? A baby snake? How and along what lines do we discriminate regarding pets?

Notably, a service animal may only be lawfully excluded from campus if, after a case-by-case evaluation, a school determines that the particular service animal poses a “direct threat” to the health or safety of others. Thus, the need for a service animal on campus may trump a student or employee’s allergy or pet-phobia (even if deemed a disability under the ADA and thus also requiring an accommodation).

On the no-pet side, one significant risk arises from the possibility that an animal may harm a person, another animal or property. In Massachusetts, for example, an owner or keeper of a dog is strictly liable for the harm it causes. While Massachusetts courts have not addressed the issue of whether an employer may qualify as a “keeper,” two cases in Connecticut have rejected this conclusion under a similar statute. Nonetheless, instances of dog bites in carpool lines are quite common. A school could potentially face liability under a general negligence theory in the event that a pet harms someone or something even if a specific state statute does not address this scenario. Indeed, a school could even be deemed liable to the pet owner if a pet is injured while on campus (accident in the carpool line or such).

In light of these competing schools of thought, independent schools may want to simply prohibit students, their families and employees from bringing any pets or animals on campus. If such a policy seems too draconian (or simply unworkable on, for instance, a boarding school campus), we recommend that schools adopt a written policy requiring anyone who wishes to bring an animal on campus for recreational purposes to sign an indemnification agreement and obtain insurance covering any damage or injury that might be caused by the animal.

If, however, after careful consideration, an independent school decides to welcome pets on campus, we recommend considering some or all of the following policies and practices:

  • Adopt a policy that distinguishes between “pets” and “service animals,” as the two categories should be treated differently;
  • Require pet owners who wish to bring a pet on campus to sign an indemnification agreement and obtain insurance covering any damage or injury by the pet or to the pet;
  • Obtain parental consent from all relevant parents before welcoming pets in the classroom;
  • Establish pet-free areas and/or permit individuals with animal-related issues to work from other locations while animals are on campus; and
  • Implement a protocol for responding to an animal’s aggressive behavior, including banning poorly behaved pets.

If an independent school prefers to prohibit pets on campus, we recommend addressing the following:

  • Adopt a strict no-pet policy that does not differentiate among dogs, cats, puppies, kittens, ferrets, gerbils, etc.;
  • Distinguish between pets belonging to faculty who live on campus and pets that are “visiting” campus; and
  • Clarify that service animals do not fall within the pet policy and that service animals will only be excluded from campus if, after a case-by-case analysis, the school determines that a particular service animal poses a direct threat to the health and safety of others.

In addition, we recommend updating both Employee and Parent/Student Handbooks to address such pet policies.

If you have any questions about best practices for pet-policies and protocols, please do not hesitate to contact a member of the Firm’s Education Practice Group.

Be Careful Out There

[September 3, 2014]  As independent schools, colleges and universities begin the academic year, looking forward to teaching, learning, and growth in the coming year, I want to remind everyone to “Be careful out there!”

In the wake of the Penn State-Sandusky story years ago, New York Times columnist David Brooks offered a sobering reminder that “[u]nfortunately, none of us can safely make that assumption [that we will do the right thing in a moment of crisis]. Over the course of history — during the Holocaust, the Rwandan genocide or the street beatings that happen in American neighborhoods — the same pattern has emerged. Many people do not intervene. Very often they see but they don’t see.”

For that reason alone, we strongly encourage schools to train themselves (students, faculty, and staff) on the kinds of behaviors that are expected at your school, and the kinds of behaviors that are unacceptable. For all educational institutions, this training is an excellent idea.

Now – early in the new academic year – is an ideal time for it. This past July, a New York Times article described the most dangerous stretch for new college students: “the Red Zone, a period of vulnerability for sexual assaults, beginning when freshmen first walk onto campus until Thanksgiving break.”

Of course, for colleges and universities, and other schools that receive federal funding, much of this sort of training is also legally required, under Title IX.

However, age-appropriate training for all students is increasingly recognized as a now-obvious “best practice.” A recent article in the Boston Globe extols the virtues of in-person training, even in middle school, to educate students earlier in their development and maturation: “we should be sending the message earlier — reaching boys in middle school, when the hormones kick in.”

Many SHPC attorneys have just returned from conducting these kinds of trainings for schools (e.g., boundary training for faculty and staff; and anti-bullying, cyber-bullying and appropriate use of social media training for middle school and high school students). These training programs are incredibly well-received by not only the schools, faculty, and staff – but also by the students – as these seminars provide a safe place to talk about challenging situations and sensitive topics.

 So, as you look forward to a fantastic year, remember to protect your students, and faculty and staff, as well. Not only during the Red Zone (between now and Thanksgiving), but also for the entire year.

Remind everyone what it means to be careful out there. That way, if something bad does happen, someone among your students, faculty and staff will really see it and know what to do about it.

Getting Your Head In The Game: School Concussion Policies And Protocols

[August 21, 2014]  With the beginning of the academic year underway or imminent, many students are returning to campus for pre-season athletic training. This school year, however, many schools and student-athletes will be governed by new (and perhaps improved) concussion protocols.

Combatting concussions has become a forefront issue in school athletics. Across the nation, legislatures, student athletic associations, and schools are responding to the demand for more comprehensive concussion policies to better protect student-athletes. Indeed, as of January 2014, every state and the District of Columbia had passed legislation regulating the prevention and management of student-athlete traumatic head injuries. In March, the National Athletic Trainers’ Association (NATA) released a new position statement on the management of sports concussions and offered comprehensive guidelines. And just over the summer, California’s governor signed a law that not only limits the number of tackling practice sessions for young football players—to only two, 90-minute full-contact practices per season—but the law also requires one week on the bench for all student-athletes who suffer a concussion.

Although concussion management laws vary from state-to-state, they generally share three pillars—a return-to-play rule, an informed consent requirement, and an education and training obligation. The return-to-play rules regulate the circumstances in which a student-athlete suspected of having a concussion or head injury must be removed from play and when he or she can resume participating in athletics.

Baseline testing is another tool to help manage sports-related concussions. By requiring students to have a pre-season exam to measure balance and brain functioning, medical professionals can better identify and diagnose post-exam head injuries. While no states currently require baseline testing, Rhode Island strongly encourages all youth sports programs (including those operated by private schools) to adopt the practice; and Massachusetts requires public schools and schools that are members of the Massachusetts Interscholastic Athletic Association to mandate that student-athletes provide head injury medical histories.

At independent schools, administrators, coaches, medical support personnel, students, and parents all play a significant role in protecting student-athletes. To help achieve their goal, we recommend including the following components in a comprehensive head injury policy:

  • An action plan policy for all students participating in interscholastic athletics;
  • Protocols for head injuries, including Return to Activity guidelines;
  • Education for parents and students, coaches, medical support employees, and other relevant persons about recognizing and managing traumatic head injuries;
  • Requests for student-athlete head injury histories;
  • Mandatory baseline testing for all student-athletes;
  • Recordkeeping of all head injuries occurring on and off campus; and
  • Policies for students who are suffering from concussions.

In addition, we recommend updating Athletics Handbooks to address concussion management and other issues such as medical emergencies, practice guidelines, and academic policies related to participation in athletics.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for student-athlete head injury policies and protocols.