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Yes Means Yes. Everything Else Means No.

If you see something, say something.

[September 28, 2015]  The headlines and news stories recently coming out of a Concord, NH, courtroom can seem overwhelming. The tale is a tragedy. The lives of two teenage students at an excellent school veered terribly off course.

What can we learn from this? How can we try to prevent the next tragedy?

We want to find ways to reduce the risk of future sexual assaults. We want to have better policies, better education – for potential victims, for potential perpetrators, and for the bystanders (whether peers or adults) who might intervene and prevent the next sexual assault.

What Happened In Concord?

By way of background, the prosecution argued that the defendant (as an 18 year old senior at the School) had emailed the victim (a 15 year old freshman), to invite her to join him for a “senior salute.” He wrote to her, “I want to invite you to come with me, to climb these hidden steps,” to a place “locked since before we were born” (the mechanical room on campus, where a sexual assault occurred).

This was allegedly part of an annual, unofficial School ritual, called the “Senior Salute,” in which senior males tried to “slay” females in lower grades, and in which the male students competed to be “No. 1 in sexual scoring.”

The Verdict

The jury found the defendant not guilty of three counts of aggravated felonious sexual assault, each of which carried a penalty of 10-20 years in prison.

The defendant was also acquitted of a simple assault charge (allegedly biting the girl’s chest).

However, the jury found that the defendant was guilty of three counts of misdemeanor sexual assault. These counts are premised in part on the fact that the victim was under the age of 16, and thus legally could not consent to the sexual encounter. Each count carries a prison term of up to one year, and sex offender registration for up to 10 years.

The jury also found the defendant guilty of endangering the welfare of a child, by soliciting the victim (under the age of 16) to engage in sexual penetration.

Finally, the jury found the defendant guilty of unlawfully using a computer to solicit a child, which is a Class B felony punishable by up to 7 years in prison and carrying lifetime sex offender registration. Thus, unless this conviction is overturned on appeal, this young man will be a registered sex offender for his lifetime.

Policies & Education:

  • Yes Means Yes. Everything Else Means No.
  • If You See Something, Say Something

What can independent schools do to reduce the risk of something like this occurring on their campus?

1.  Review & Improve Policies & Procedures. School administrators should carefully review and improve (if possible) policies and procedures related to issues of sexual assault, to make sure that the school follows best practices. Sometimes this will be tailored to the school’s culture, and sometimes it may be the culture itself that needs a second look. This policy audit should also include a thorough examination of all student sexual conduct policies (such as parietals), including policies that address consent, sexual assault and sexual harassment, bullying and hazing prevention and intervention plans, prohibitions against cyber-bullying and sexting, acceptable use of technology and discipline policies, and policies related to mandated reporting.

2.  Review & Evaluate School Traditions. School administrators should carefully review the school’s culture, traditions and other practices in light of the Concord case, and abolish or amend these traditions or practices to ensure that students are kept reasonably safe.

3.  Review & Improve Employment Policies. Schools should also conduct a careful review of employment policies, such as mandated reporter policies and training, the hiring procedures for all employees, as well as policies governing everything from the athletic department, to dormitory life, school trips, and any other circumstances in which students might foreseeably engage in unlawful or dangerous behavior.

4.  Enhanced Education For Students. In recent years, more independent schools are providing “Boundary Training” for students, to educate them about acceptable behavior. Such training should continue, but more robust boundary training is needed to educate students about the state laws governing consent and sexual assault, in addition to education about which behaviors are generally acceptable and unacceptable.  Multiple sessions in small groups, where students are given opportunities to engage with educators on this sensitive topic, are likely to provide a safe space for students to ask questions and absorb the information.  It is particularly important that the topic of consent be addressed, including the fact that it seems that the definition of consent is evolving, most recently to affirmative consent: Yes means yes. (And just to be clear: Everything else means no.)

This enhanced education for independent school students might well be viewed as a kind of precursor to the training that colleges and universities are in essence required to do. Institutions of higher education provide sexual assault prevention training for their students, pursuant Title IX. Clearly, independent school students could benefit from an age-appropriate version of such training, not only in their high school years, but also in preparing them for collegeSome people think that an age-appropriate version of this enhanced boundary training should start as soon as fourth grade. 

5.  Enhanced Education For Faculty And Staff. Likewise, independent schools should continue and expand on the trend of providing “Boundary Training” for faculty and staff. More of this broad-based boundary training is needed, particularly to educate all school employees about each school’s potential liability when students engage in conduct on campus or sanctioned school events that violates state criminal laws. While many school employees seem reluctant to embrace the quasi police-like role inherent in such training, it seems too important to ignore in light of recent events in Concord.

In addition, this enhanced boundary training for school employees should also strongly reinforce the idea that if you see something, say something. We do not want more stories of coaches or janitors who did not get the training needed to know what to do when they saw an old man taking a shower alone with a young boy. Educate all employees. Empower all employees to do something.

Thus, for example, if you see an 18-year old senior going off into the dark, late at night, with a 15 year old freshman, say something, do something.

6.  Educate Parents And Board Members. Some version of boundary training should also be provided to parents and Board members, to make sure the entire school community understands what behavior is unacceptable. The potential for student sexual misconduct is not only a problem on boarding school campuses, and schools need to assist parents of day students in establishing appropriate guidelines when hosting social events in private homes or venues, off campus.  And to be sure that the students know that everyone knows the rules, and that it is safe to talk to anyone about unacceptable behavior.

***

Let your school’s words and actions say clearly to everyone in the community that student safety is paramount, and that each member of the community is strongly encouraged to do his or her part to make it safe for everyone.

Yes means yes. Everything else means no.

If you see something, say something.

 

Non-Discrimination Statements: In Sync And In Line With Your School’s Mission

[September 15, 2015]  Does your school’s application for admission ask potential students to provide a photograph? Are applicants required to indicate whether they are male or female? Do you promise not to discriminate against student applicants based on their genetic information? While all of these practices may be well-intended, some of them may miss the mark when it comes to avoiding discrimination and promoting diversity on campus.

Take the request for a photograph. The Internal Revenue Service (the “IRS”) notes that requiring a photograph may indicate that the admissions process is racially or ethnically discriminatory, even if that is not the school’s intent. Indeed, the IRS specifically requires private schools to include policies in their Bylaws and admissions materials, stating that the school does not discriminate based on race, color, or national or ethnic origin, as a condition of obtaining and maintaining § 501(c)(3) tax exempt status. Schools may, therefore, consider asking student candidates about their ethnicity as an optional question on an application, but should not insist on obtaining this information as a condition of admission.

Where does your state law stand on gender identity and expression? Some states prohibit this form of discrimination in public schools and many independent schools are choosing to take a fresh look at dress codes, restrooms and locker rooms with this characteristic in mind. Be sure that your school’s non-discrimination statement and application for admission are consistent with your school’s philosophy on this evolving topic. Do you need to know the gender of the applicant? You might consider increasing the number of check boxes on an application to permit a wider range of answers to the gender identity question, or include no check boxes, but ask a student applicant to self-identify in a way that best fits the applicant. Of course, in single-sex schools, this topic is significantly more complex.

Schools sometimes try to be inclusive with respect to genetic information. Under federal law, employers are generally prohibited from discriminating against employees based on genetic information; however, discrimination based on genetic information is not prohibited by independent schools toward student applicants and current students.  Though your school may not intend to evaluate students on this basis, schools are not legally required to include this characteristic as a protected class with respect to student applicants.

With schools focused on diversity and inclusion for the whole school community—based on financial need, disability, citizenship, the protected classes mentioned earlier and other characteristics—it is important to ensure that your non-discrimination statements and practices are consistent across the organization, are in sync with your school’s mission and are lawful. We recommend that independent schools review their non-discrimination policies wherever they appear—as illustrated in the list below—to ensure that they are drafted appropriately for both students and employees:

  • Student/Parent Handbook(s);
  • Employee/Faculty/Staff Handbook(s);
  • Acceptable Use Agreements (Employees/Students);
  • Bylaws;
  • Employment Applications;
  • Enrollment Contract; and
  • Website

If you have any questions about legal compliance with respect to non-discrimination policies and diversity initiatives, please do not hesitate to contact a member of the Firm’s Education Practice Group.

 

Who Makes The Call And When: Mandated Reporter Laws From State-To-State

[April 28, 2015]  Picture this: during an Upper School Assembly at Springtime Academy, a recent alumnus of the school gives a talk and video presentation about his recent adventure on Mount Kilimanjaro. He remains on campus for the day, attending classes and bonding with students. During a conversation after lunch, a couple of tenth graders reveal to the climber that some of their classmates recently engaged in sexual misconduct. The speaker tells the school administration about what he heard, but does not report the misconduct to the state child welfare authorities. Should he have?

Guess what the lawyers say? “It depends.” It depends on how your state law defines “mandated reporters,” or those who, by virtue of their profession, are considered to have a heightened responsibility to report good faith suspicion that a child has been abused, sexually abused or neglected. Typically, such reports must be made to state child welfare agencies within 24-48 hours of the individual learning of the suspected misconduct.

In most states, those employed by schools (administrators, coaches, teachers), doctors, social workers and other licensed counselors are considered to be mandated reporters; but by virtue of someone speaking at a school, the mantle of “mandated reporter” does not automatically apply. In other states, anyone—regardless of profession or school affiliation—is obligated to report suspected child abuse, sexual abuse and neglect. In those states, the speaker could have an obligation to report the misconduct—his telling school administrators what he heard may not be enough to satisfy that requirement. Some states require that school employees first report their good faith suspicions of child maltreatment directly to authorities before informing even their supervisor or head of school. Finally, most states penalize individuals who should have reported and do not, versus those who made a good faith report of child maltreatment, that later, turns out to be unsubstantiated.

The take away: the determination of who is legally obligated to report suspicions of child maltreatment is nuanced and highly dependent on knowing your school’s state law. Take the time to educate your entire employee population – boundary training and mandates reporter training will help the community be ready for whatever may arise on campus.

If you have any questions about legal compliance for reporting suspected child abuse, sexual abuse or neglect, please do not hesitate to contact a member of the Firm’s Education Practice Group.

Show Jumping And Steeplechase: Is Your Campus Horseback Riding Program Kentucky Derby Worthy?

[April 21, 2015] The nation’s attention will be turning to Kentucky, Maryland and New York for the triple crown horse races later this spring. While hoping that you may have the next National Velvet in the stables, we encourage independent schools to be aware of and effectively minimize their exposure to the potential risks that may arise from offering horseback riding programs.

Currently, all states, except California, Maryland, Nevada, and New York, have statutes that provide some level of protection from personal injury liability for an organization that offers equine activities. State laws vary quite a bit, however, in requiring specific wording for a release form, time periods for retaining such forms, and posting of warning signs in the stable and corral. For example, in Pennsylvania, signs indicating that riders assume the risks associated with the activity must be two feet by three feet in size. In Massachusetts, such signs must be in black letters, with each letter to be a minimum of one inch in height—we were not kidding when we said the laws are specific! Therefore, it is important that schools be aware of state laws and craft signage and permission and release forms to maximize their enforceability.

Furthermore, even a well-drafted release may not deter an injured student and the student’s family from filing suit against a school, so it is extremely important that schools take all appropriate measures to prevent injuries while students participate in high-risk activities, including horseback riding, through establishing and implementing appropriate risk management strategies. Has your school considered implementing baseline testing protocols to help prevent and manage concussions? Does your school have policies and procedures in place to make sure saddles and helmets are appropriately (and safely) fitted to horse and rider?

In an effort to minimize an independent school’s exposure to potential legal risks associated with riding programs, we recommend that schools take the following measures:

  • Carefully evaluate applicable laws related to equine activities in the school’s home state;
  • Implement appropriate athletic policies and risk management plans related to equine activities;
  • Carefully draft signage, permission, medical treatment authorization and release forms;
  • Ensure that all riding team trip forms are consistent with state-specific best practices; and
  • Educate students, parents, athletic trainers, instructors and coaches regarding the school’s policies and procedures pertaining to equine activities.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about this information or equine activity-related issues in general.

 

Calling The Shots: Best Practices For Independent Schools Responding To Vaccine Concerns

[March 3, 2015]  Vaccines (and whether to vaccinate teachers and children) are hot topics of debate across the nation. The recent measles outbreak linked to Disneyland has intensified this discussion and caused a groundswell of anxiety on independent school campuses. We recommend that schools take this opportunity to implement a comprehensive Immunization And Communicable Disease policy to reflect a school’s desired practices and applicable governing laws regarding vaccination requirements and non-immunized students on campus. This will ensure that schools have the flexibility they need to respond to communicable illnesses, while also protecting the interests of students, parents, employees, and other community members.

Legal Requirements And Duties

As a preliminary matter, we advise schools to become familiar with applicable law and to determine whether their policies and practices are in compliance with legal mandates and best practices. Every state requires schoolchildren to be vaccinated against certain diseases unless they fall within an exemption based on medical reasons, religious beliefs, and/or personal or philosophical beliefs. However, the intricacies of the laws – including the required vaccines, the types of exemptions recognized, and the documentation required for proof of immunization and exemption – vary significantly from state to state.

In Massachusetts, for example, schools may not admit an unimmunized student unless that individual has satisfied the criteria for a medical or religious exemption or the individual is homeless. Massachusetts also requires schools to keep a complete and up-to-date immunization record (or the required exemption documentation) on file for every enrolled student. Other states, such as Connecticut, also require schools to annually fill out a form disclosing student immunization information to the Department of Public Health.

Once a school has identified applicable laws, we recommend conducting an internal audit to confirm that the school’s immunization policies and practices are in compliance. A school should also confirm that any information on file (and/or provided to state agencies in accordance with applicable laws) is accurate.

Disclosing Immunization Information

Schools may receive requests from parents, teachers, or other individuals to provide information about student immunization rates on campus. Whether exemption rates may be tracked and/or disclosed depends upon applicable laws. Some states, such as Colorado, require schools to track exemption rates and to report this information to students’ parents directly. Other states, by contrast, only permit disclosure to designated state agencies. Connecticut requires schools to annually report student immunization information but defines this information as confidential. In Massachusetts, schools are permitted – but not legally required – to disclose student immunization rates to the Department of Health, which, in turn, makes this information publically available. In some states, disclosure to parents, teachers, or other individuals may violate students’ privacy rights.

Hence, understanding when a school should disclose information, and to whom it may disclose it, is an important component of managing legal risks in this area. Addressing this as part of a comprehensive policy will not only help the school avoid unauthorized disclosure of confidential information, but will also reassure parents who may be concerned about children’s privacy and even deter individuals from asking for immunization information.

Policies For Exclusion Of Non-Immunized Students

Perhaps the most contentious issue that schools will confront is whether a non-immunized student will be excluded from campus, and if so, under what circumstances. Some independent schools have sought to prohibit any non-immunized student from enrolling, regardless of whether the individual meets the state’s exemption criteria. This approach could create potential legal claims, such as discrimination or breach of contract. Moreover, this approach may seem too Draconian.

Accordingly, we recommend implementing a policy that reserves the school’s right to exclude any student who has a communicable illness, has been exposed to an infected person, or is susceptible on account of non-immunization, in the event of a vaccine-preventable or any other communicable disease incident. The goal with such a policy is to provide the school with a wide degree of latitude in responding to situations on campus that affect members of its community. Equally important, the policy will provide parents with notice of the school’s right to act.

* * *

An Immunization And Communicable Disease policy can effectively address all of these issues to ensure that the interests of the school, its students, and its employees are well protected. A well-crafted policy will withstand the future unknown: whether it is measles, Ebola, or any other number of communicable diseases making the headlines, a school can rely upon this policy to adequately and effectively respond.

Finally, another component to an effective risk management strategy is to provide the school with grounds to manage or exclude staff and faculty when the threat of a communicable disease arises. As such, this may be an opportune time to visit the employee handbook’s communicable illness provision to determine if it is in sync with the school’s goals and best practices.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about best practices for complying with state vaccine legislation and/or managing non-immunized students on campus, or if you would like our assistance in drafting an Immunization And Communicable Disease policy.

Hazing Reporting Deadline In Massachusetts

[October 24, 2014] Halloween-inspired tricks may not be the only pre-occupation for independent schools at the end of October. With November 1st fast approaching, schools should review the Massachusetts anti-hazing law to determine if they are required to comply with its distribution and reporting requirements.

Massachusetts legislators have placed the Commonwealth at the forefront of the national movement to mitigate against bullying and hazing in schools. The Massachusetts anti-hazing law (Massachusetts General Laws C. 269, §§ 17-19) broadly defines hazing as “any conduct or method of initiation into any student organization, whether on public or private property, which willfully or recklessly endangers the physical or mental health of any student or other person.” The law requires “institutions of secondary education” to annually distribute a summary of the anti-hazing law to students who are members of any student group or organization (including athletic teams), athletic coaches, and activity sponsors. These recipients must acknowledge, in writing, that they have received notice of the law. Additionally, the secondary school must file a report with the Department of Elementary and Secondary Education (DESE) describing the school’s anti-hazing policies.

While the law is clear on procedure, the anti-hazing regulations do not clearly define a “secondary school.” Only schools deemed “secondary schools” must comply with the distribution and reporting requirements of the anti-hazing law. While schools educating students in grades 9-12 meet the definition of “secondary schools,” DESE often considers K-9 schools to be “secondary schools” even if the majority of students are below traditional “secondary school” age.

We therefore recommend that independent schools educating students in grades 9-12 (even if most of the student body is of lower and middle school age) follow the law’s distribution and reporting requirements. To achieve compliance, we recommend that schools accomplish the distribution requirement in the following manner:

  • Include an anti-hazing policy in the student handbook;
  • Attach the full text of the anti-hazing law in an appendix to the handbook;
  • Use a handbook acknowledgment page indicating receipt of the handbook; and
  • Distribute an anti-hazing policy acknowledgment form to all relevant students and staff for signature.

The anti-hazing law further requires that covered schools file an annual report with DESE attesting to the school having distributed the law, obtained acknowledgments that it has done so, and that it has a disciplinary policy in place that addresses hazing. While this report should be filed on or before October 1 of each year, DESE will not notify the Attorney General of any school required to report that failed to do so, until November 1; thus, schools still have time to comply with the law if they have not already done so. Any school unsure of its status under the anti-hazing law or unclear about the reporting requirements should promptly seek advice of counsel.

If you have questions about best practices for complying with the Massachusetts anti-hazing law, please do not hesitate to contact a member of the Firm’s Education Practice Group.

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.

* * *

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.

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.

Home Sweet Home: It May Not Be So Sweet…

[May 12, 2014]  The media and the government are both paying more attention, and we urge educational administrators to take a second look as well.

The question is whether independent schools, colleges and universities are obligated to treat the rental value and utility costs of a school-owned residence, occupied by a school employee (e.g., Head of School, faculty member), as a component of the employee’s gross taxable income.  In other words, may the school provide housing to the employee as a tax-free benefit, or must the school report the value of the housing benefit on the employee’s W-2 form?

Under the applicable federal legal standard, the default is that an educational institution is obligated to include the rental value and utility cost of the employee’s house provided by the school within his or her gross income, unless the school’s housing arrangement satisfies a “three criteria test.”  The test is whether:  (i) the school’s housing is furnished on the school premises; (ii) the school’s housing is furnished for the convenience of the school; and (iii) the employee is required to accept such housing arrangement as a condition of employment.  Or, alternatively, the school falls within the “qualified campus lodging” exception (i.e., the school’s housing is located on campus, furnished for use as a residence, and the employee pays an adequate rent).

The prongs of these tests are not always easy to satisfy – especially in the context of a day school (non-boarding).  Historically, on-campus housing has been a fabulous perk for educational leaders.  Today, the regulatory environment is such that a formal legal opinion should be rendered as to the taxability of the benefit.  It is no longer sufficient to simply recite that on-campus residence is a requirement of the job – a stronger rationale may be required by the government to satisfy a non-taxable benefit.

In addition, it is important to note that state laws do not always mirror the federal law.  For example, New Jersey tax law uses the three criteria test and does not recognize the “qualified campus lodging” alternative.  Thus, the “qualified campus lodging” benefit could be tax-free for federal purposes, but still taxable for New Jersey purposes.

Analyzing the excludability of housing benefits from an employee’s gross income is highly fact-intensive.  We recommend carefully evaluating the school’s housing arrangement in light of applicable federal and state laws.

Union Rights For Student Athletes? NLRB Decision Creates A Whole New Ball Game For Colleges And Universities

[April 24, 2014] Football players for Northwestern University (the “University”) who receive grant-in-aid scholarships may vote for union representation under federal labor law, according to a recent, controversial ruling by the Regional Director (“RD”) of the National Labor Relations Board (“NLRB” or “Board”) office in Chicago. The secret-ballot election has been scheduled to take place tomorrow, April 25, 2014.

The University has filed a request for review of the RD’s decision by the full Board. If the Board agrees to review the RD’s decision, then the Board could either (i) stay the election pending the outcome of its review, or (ii) let the election proceed, but with the ballots impounded until the review is completed.

If the Board lets the RD’s decision stand (either after review or by declining review), and if in turn, the football players vote to unionize, then the University might refuse to bargain with the union. This would force the union to file an unfair labor practice charge, the first step in a legal process that includes rights of appeal to the United States Court of Appeals and then to the United States Supreme Court. (If the players voted against unionization, then the legal process would end, but the players could seek another union election after one year.)

If allowed to stand, the RD’s ruling would be a “game changer” for many colleges and universities. In this regard, union organizing campaigns targeted toward student athletes, followed by costly collective bargaining involving big-ticket demands, could become the norm.

Background

Earlier this year, a labor organization called College Athletes Players Association (“CAPA”) filed a representation petition with the RD. The petition asked the RD to schedule a secret-ballot election for University football players receiving grant-in-aid scholarships (the “Players”) to determine if they wished to be represented by CAPA for purposes of collective bargaining with the University.

The University objected to the representation petition, primarily on the ground that its football players are not employees and, as such, do not have a right to unionize under federal labor law. In this regard, the National Labor Relations Act (the “Act”) provides collective bargaining rights only to nonsupervisory “employees” of employers covered by the Act. (In the educational realm, the Board generally (i) asserts jurisdiction over private and nonprofit colleges, universities, and other schools with gross annual revenue of $1 million or more; (ii) treats public educational institutions as exempt from the Act; and (iii) declines to assert jurisdiction over employees of religious organizations who are involved in effectuating the religious purpose of the organization. Please note, however, that entities not covered by the Act may be covered by state labor laws.)

The University and CAPA (which, by the way, receives financial support from the United Steelworkers union) participated in an evidentiary hearing at the NLRB and then submitted briefs in support of their respective positions. The briefs were forwarded to the RD for a decision.

The RD’s Decision

The RD concluded that the Players are employees of the University for purposes of the Act. In reaching this conclusion, the RD applied the common law definition of “employee.” Under this definition, an employee is a person who (1) performs services for another, (2) under a contract of hire, (3) subject to the other’s control or right of control, and (4) in return for payment. According to the RD, each of these elements was satisfied.

First, the RD found that the Players’ participation on the football team constituted “valuable services” to the University. He noted that the University’s football program generated approximately $235 million in revenue between 2003 and 2012 through ticket sales, television contracts, merchandise sales, and licensing agreements. According to the RD, the University “was able to utilize this economic benefit provided by the services of its football team in any manner it chose.” The RD also reasoned that the Players’ services have resulted in a winning football program, which has had an “immeasurable positive impact” on alumni giving and the number of applicants for enrollment at the University.

Second, in the RD’s view, the “tender” that each Player was required to sign before the beginning of each scholarship period served “as an employment contract.” The tender is a document providing detailed information about the duration of the scholarship and the conditions under which scholarship funds are to be provided. Noting that the National Collegiate Athletic Association (“NCAA”) prohibits student athletes from receiving additional compensation or otherwise profiting from their athletic ability and reputation, the RD concluded that “the scholarship players are truly dependent on their scholarships to pay for basic necessities, including food and shelter,” making the tender all the more akin to an employment contract.

Third, the RD determined that the Players perform their services under the University’s “strict and exacting control” throughout the entire year. In particular, the RD found that the University requires the Players: (a) to commit 50-60 hours per week to football-related activities during a six-week training camp prior to the academic year; (b) to commit 40-50 hours per week to football-related activities during the “football season” portion of the academic year, despite NCAA rules purporting to limit such activities to 20 hours per week once the academic year begins; and (c) to abide by restrictions governing numerous aspects of their personal lives, including, among other things, their living arrangements, outside employment, and off-campus travel.

Fourth, according to the RD, “it is clear that the scholarships the players receive is compensation for the athletic services they perform throughout the calendar year, but especially during the regular season and postseason.” In this regard, the RD noted that “while it is true that the players do not receive a paycheck in the traditional sense, they nonetheless receive a substantial economic benefit for playing football” in the form of “tuition, fees, room, board, and books for up to five years.” The monetary value of these scholarships, the RD found, was as much as $76,000 per year – and in excess of $250,000 in the aggregate – for many of the Players.

The RD rejected the University’s argument that the Board’s decision in Brown University, 342 NLRB 483 (2004), required a finding that the football players are not employees. In Brown University, the Board ruled that “graduate assistants” who sought union representation were not employees within the meaning of the Act. The RD distinguished Brown University as being premised on a finding that the graduate assistants were “primarily students.” To the contrary, explained the RD, “it cannot be said that [the Northwestern University football players] are ‘primarily students’ who ‘spend only a limited number of hours performing their athletic duties.’”

Implications and Recommendations

If the RD’s ruling is allowed to stand, then student athletes who receive scholarships from colleges and universities are likely to become targeted for aggressive union organizing. This means, in effect, that members of many collegiate football teams, basketball teams, and the like (i.e., student athletes whose teams require them to put in substantial hours and generate substantial revenues, as reflected in the RD’s first and third factors) could opt for representation by CAPA or other labor organizations and then proceed to demand collective bargaining with the institution.

What would the parameters be for collective bargaining involving student athletes? This is far from clear. CAPA’s Web site suggests that, at a minimum, protecting student athletes from injury and assisting with medical expenses would be areas of emphasis. In this regard, CAPA contends that the NCAA denies having a legal duty to protect college athletes from injury; has failed to investigate and minimize concussion-related deaths; and ignores reports that coaches pressure athletic trainers to clear concussed players for action. CAPA also wants to loosen restrictions on how and the extent to which student athletes may be compensated.

Educational institutions – particularly those that generate revenue through their athletic programs – are urged to monitor the Northwestern University case closely. As the matter now stands, the prospect of union organizing campaigns in dormitories and athletic facilities; collective bargaining sessions with union-represented student athletes; and demands for big-ticket items such as guaranteed medical benefits for sports injuries is one step closer to reality. Given what is at stake, the game plan for educational institutions should be to stay informed and, in turn, to be prepared.

Emergency Medical Response: What’s Your Plan?

[March 18, 2014] Envision this scary scenario: the school community is gathered around the field for the season-ending lacrosse game between rivals, when an 11th grader collapses on the field, in need of emergency treatment.  If there is no medical professional on-site, are members of the faculty or administration prepared to rush in and respond appropriately? Should they?

Many states have so-called “good Samaritan” laws on their books which exempt lay people from liability for good faith attempts at cardiopulmonary resuscitation (CPR) and other methods (defibrillation) to save a person’s life.  Nonetheless, independent schools will want to ensure that their own policies around the rendering of emergency medical care—for example, in student, employee, and athletic handbooks—reflect applicable state law and best practices.  For example, at the end of February, the Massachusetts legislature amended the Commonwealth’s good Samaritan law to broaden its applicability, so that anyone other than paid medical or emergency responders, may avoid liability for their acts and omissions (absent gross negligence or willful misconduct) when attempting to save a life.

Specifically, Massachusetts S. Bill 1993, which will take effect May 21, 2014, extends liability protection in civil suit for damages to any person, who in good faith and not for a fee, attempts to render medical care. The law had previously excluded protection for persons “whose usual and regular duties” included the provision of emergency medical care—meaning physicians, off-duty firefighters and police officers, and other persons trained in CPR, automatic external defibrillators (AEDs), or basic cardiac life support. Now, however, in Massachusetts, anyone may make a good faith response to an individual in need of medical attention without fear of liability.

Massachusetts follows other states, such as New Jersey and North Carolina, that had already passed similar “good Samaritan” laws granting immunity from civil liability for the use of AEDs in good faith during an emergency.  In fact, New Jersey not only provides immunity to the individuals rendering emergency care by use of AEDs, but also extends this protection to the person or entity providing or maintaining the equipment, the person or entity who provided training in CPR and use of the defibrillator, and the prescribing licensed physician.

Recognizing the importance of early medical response and appreciating the additional protection this amendment affords, independent schools may want to develop or update existing policies for emergency medical responses during school events. These policies may include establishing a response team, installing AEDs on campus with maps illustrating their locations, or implementing AED, CPR, and first aid training for employees and coaching staff.

Please do not hesitate to contact us if you have any questions about this information or need our assistance regarding emergency response protocols or other school crisis readiness policies and practices.

The President’s Challenge: Stop Sexual Assaults

[January 23, 2014] The White House report released yesterday (“Rape and Sexual Assault- A Renewed Call To Action“) is a stern reminder that all educational institutions — not just colleges, universities and other federally-funded institutions that must comply with Title IX — have a moral, if not legal, obligation to take all reasonable measures to reduce sexual violence and misconduct at their institutions.

The data and numbers highlighted in the report are noteworthy.

  • Nearly 1 in 5 women (22 million) have been raped in their lifetime.
  • Almost 1.6 million men have been raped in their lifetime.
  • Nearly half of female survivors were raped before they were 18.
  • 1 in 5 women was sexually assaulted while in college.
  • Assaults in college appear to be fueled by alcohol and drugs, often occurring at parties.
  • Most victims know their perpetrator.
  • 12% of high school girls report having been forced to have sex.

The costs of sexual misconduct are significant. They include not only the potentially irreparable damage to millions of young victims and survivors, but also potentially staggering litigation costs (which are not limited to attorneys’ fees), and damage to an educational institution’s reputation.

The President’s announcement and the Vice President’s leading role demonstrate the White Houses’s commitment to this issue. Thus, among other things, the White House has stepped up federal compliance and enforcement efforts. Colleges and universities have been well-advised to take notice. But rededication of efforts is now in order.

Accordingly, independent schools should now take note. We strongly encourage our secondary schools to act to reduce the risk of sexual misconduct on their campuses and to prepare their students to act appropriately when they get to college.

With this in mind, colleges, universities, and independent schools should:

  • Focus violence prevention education on perpetrators, survivors and bystanders. This should include getting men more involved, by educating the potential perpetrators, and by seeking the commitment and support of bystanders.
  • Educate (require attendance at preventive education programs) for faculty, other employees, and all students, providing information about the institution’s policies, practices and resources regarding sexual assaults and sexual misconduct. This will generally be tailored to the audience members’ ages and each institution’s campus and culture. For example, we are currently providing boundary training (‘Shades Of Grey And Blurred Lines’) at many schools.
  • In addition, schools may want to address these issues directly (bluntly) with applicants, to set an appropriate tone early on and discourage applicants who might be inclined to engage in misconduct.
  • Explore various ways to engage students, looking for whatever may generate their greatest involvement.
  • Understand your institution’s culture, and take appropriate action to redefine it if necessary. (Examine, and learn from, your institution’s past.)
  • Update policies and practices for responding to allegations of sexual misconduct and violence. This should include a review of disciplinary consequences.
  • Properly educate school officials responsible for responding to complaints. This will include education on a range of issues, including training for investigators and adjudicators involved in handling complaints of sexual assault (something that we have been doing for our clients recently, as well).
  • Consider whether the institution is properly organized (e.g., should HR be a separate department, as was recommended for Penn State by the Freeh Report); does it have the necessary resources to effectively administer and enforce the institution’s policies and protocols?
  • Provide survivors with appropriate resources and remedies to continue their education.
  • Address the need for fairness to the accused throughout the institution’s policies, protocols, and training, including the potential for false accusations.
  • Develop and maintain strong relationships with local law enforcement.

In short, institutions should update policies, practices and protocols, implementing best practices for preventing and responding to sexual misconduct, sexual assault, and rape.

The value of these measures may be obvious to those who have closely followed the stories at institutions in the headlines, from Penn State to Horace Mann, from Amherst to Deerfield. The challenge is not knowing what to do, in general. The challenge is in deciding to do it and tailoring these measures to your institution.

We are able and willing to assist.

Sara Goldsmith Schwartz, William E. Hannum III and the Education Team at Schwartz Hannum PC

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An article written by William E. Hannum III entitled “The Right Thing To Do: Preparing For And Responding To Allegations Of Sexual Abuse At Independent Schools” may provide additional, helpful guidance.

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William E. Hannum III is speaking on this topic at the Policy Institute, at independent schools and universities from Virginia to California, Indiana and Missouri.  Please join him! For more information, please click here.

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For a copy of the White House report, please click here.

Shades Of Grey And Blurred Lines

[January 9, 2014]  My phone rings almost every day with a question about boundaries.  Given today’s complex legal landscape, this is not surprising.

Educators at independent schools play a special role in the lives of students, well beyond just that of caring teacher: mentor, coach, disciplinarian, and friend.  It is in a teacher’s role as the latter that lines may be blurred and boundaries need to be enforced.  It may be obvious to most that intimate relations between teachers and students is a bad idea on many fronts–legally, morally, and ethically–however, in the independent school world, where many interactions happen outside of the classroom, let alone in cyberspace, it is important to revisit the complex definitions of what is appropriate and in the best interests of students.  Of course, the concept of boundaries in the independent school world transcends the teacher/student context, and often includes teacher/parent, teacher/alumni, student/student and any number of other pairings in which positive, close connections can quickly turn into an uncomfortable and negative experience that expands beyond appropriate boundaries.

In response to the current climate and the frequent inquiries from school leaders, the Firm has developed many iterations of an interactive workshop to encourage dialogue and exploration of these issues, including defining the boundaries and addressing the legal and ethical ramifications of inappropriate boundary crossing. Using real world scenarios from the Firm’s counseling experience and beyond, in addition to referencing the School’s employee and student handbooks for applicable policies, our workshop guides educators through the “grey areas” of mentoring and caring for students on the right side of the legal and moral divide. Our workshop can also be tailored for Board retreats.

E-Rate Funding: A Trigger For Compliance With Other Federal Laws?

[January 6, 2014]  Recently, the Federal Communications Commission (FCC) announced a new round of  E-rate Rulemaking, and invited feedback on how to ensure that schools and libraries have affordable access to 21st century broadband in order to support digital learning, maximize the cost-effectiveness of E-rate funds and streamline the administration of the E-rate program.

In response, independent schools have been inquiring as to whether participation in the E-rate program will trigger a school’s obligation to comply with a variety of federal laws to which schools would otherwise not be subject.  While the benefits offered by the E-rate program are attractive, we encourage each school to affirmatively establish whether such participation will trigger broader compliance obligations.

Section 504 of the Rehabilitation Act (Section 504) (requiring accommodation for students with disabilities) and Title IX of the Education Amendments of 1972 (Title IX) (prohibiting discrimination on the basis of sex) do not specifically address whether E-rate funding is considered federal financial assistance.  However, a Pennsylvania federal district court decision has held that receipt of an E-rate grant rendered a school in receipt of federal financial aid; therefore, the school could be sued for violations of Section 504 or Title IX.  In reaching this decision, the court relied on the U.S. Supreme Court’s characterization of the E-rate program as a form of “federal assistance” intended to help the public gain access to the Internet.

Though this case stems from Pennsylvania, and is thus not directly binding authority in other jurisdictions, it is noteworthy that there is common law legal analysis addressing the applicability of Section 504 and Title IX to schools that receive E-rate funds.  At this time, it is not clear whether that holding will be followed by other jurisdictions.

Accordingly, we recommend that each school carefully assess the value of E-rate funding relative to the potential for new legal compliance obligations that such funding may trigger, as the school decides whether to participate, or continue to participate, in the E-rate program.

Please do not hesitate to contact us if you have any questions about this information or need our assistance regarding issues related to E-rate funding.

“Our House Is A Very, Very Fine House” … Best Practices With Homestays

[December 11, 2013]  Are you ready to host international students in local families’ homes?  We are seeing a noteworthy increase in the number and variety of homestay programs offered by our independent schools.  One reason for this surge is the substantial increase in international students enrolling in independent schools in the United States.  Approximately 50,000 high school students come to the U.S. from abroad each year, about half of them from China.  The inclusion of foreign students through homestay programs can bring welcome diversity to the student body and enhance the school’s funding through tuition and advancement, as many students from abroad are able to pay full tuition.

In addition, student exchange programs remain popular and often involve local homestays.  For instance, when international students spend time in the United States, their visits constitute a “homestay” from a risk management perspective.

Independent schools involved in homestay programs are well-advised to ensure that they have appropriate procedures, authorization forms, handbooks and contracts in place for managing the enrollment of international students, as well as their short-term homestay visits, in order to mitigate the risks associated with educating students whose natural parents live outside of the U.S.

We recommend the following components of a comprehensive homestay compliance package:

  • A special enrollment contract, which is the school’s opportunity to establish a contractual relationship with the international students and their natural families.
  • A “conduct guide,” outlining in detail the conduct expectations for international students and their host families.
  • A host family “application kit,” including:  (a) host family application; (b) host family site inspection sheet; (c) interview questions for prospective host families; and (d) host family authorization for background clearances.
  • A host family contract, so that host families acknowledge and agree to abide by conduct standards in their interactions with the student and the school.
  • A host family authorization form, permitting host families to arrange for medical care and grant permission for school trips, sports participation, and the like.
  • A host family handbook, describing provisions that target the unique issues that may confront the hosts of homestay international students.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about homestay best practices, contracts, authorization forms or handbooks.

Hacked! Best Practices For Preventing And Responding To Data Breaches At Your School

[September 11, 2013]  “…Data breaches can have a significant impact on an independent school’s relationship with its students, alums, and their families, as well as with faculty, staff, and other employees.  Those affected may lose trust in the institution, given its apparent inability to safeguard sensitive, personal information.  While the appropriate response to a data breach depends on the facts of the situation and applicable state and federal laws, below is a broad, step-by-step approach to help your school prepare for and respond to a data breach…”

To read the full article, which appeared in the September/October 2013 issue of NBOA’s Net Assets, please click here.

Heads Up!

[August 28, 2013]  It seems that a new season of Head-of-School turn-over is upon independent schools: after several quiet years (post-Great Recession), more Heads of School are retiring.  In turn, this is leading to a rippling of job changes throughout independent schools across the country.

All of this activity – Heads retiring, Heads leaving schools, Heads starting at new schools – serves as a reminder of the importance for schools (and their Boards) to handle these transitions effectively (i.e., “dot the i’s and cross the t’s”).  With this in mind, we offer the following thoughts to help guide schools through the transition process, from departure through the search and to hiring a replacement.

  • The departure of a long-standing Head of School affects each school community in unique ways.  It is, therefore, important that independent schools take stock of the departing Head’s achievements and conduct a self-reflective and thorough assessment of the school’s needs as it embarks on the search for a new Head of School.
  • The school should establish a timeline for its search process.  For example, consider whether it makes sense for a new Head to overlap with the departing Head:  will that ease or complicate the transition?
  • Next, the school’s Board should convene a search committee, which should engage a professional search firm to assist the school in identifying suitable candidates.  Carefully negotiate the search firm’s contract to fully protect the school’s interests.  A critical part of the search process will be working with the search firm to create the best possible profile of the school.  What are the school’s short, medium and long range goals for enrollment, fundraising, and capital projects? What about the school’s culture is unique? An accurate profile of the school will help to ensure that candidates for the school’s most important job actually understand the school’s strengths and challenges, and where the potential Head can envision making a positive impact.
  • The interviewing of potential candidates provides an important opportunity to assess personality, interpersonal skills and fit.  Therefore, Board members should be well prepared (perhaps formally trained) to ask the right questions, avoid inappropriate questions, and assess candidates’ responses.
  • Once a candidate is selected, we recommend executing a short (one or two page) “term sheet” prior to drafting a contract.  Once both sides agree on key terms and numbers, the remaining contract terms will usually fall more easily into place.
  • We recommend conducting a “safe harbor” analysis (under Internal Revenue Service (IRS) regulations) to ensure that the school offers what the IRS would consider to be reasonable compensation.  By reviewing compensation arrangements for the initial contract, the school will avoid the potential of having to decrease compensation upon contract renewal, if the original package was too “rich” as compared to the compensation paid by similar organizations.
  • Finally, some independent schools provide a modest financial package to a departing Head of School, sometimes as a thank you or a bridge to retirement, or perhaps to help smooth the transition to the next Head of School.  However, unless specifically required by the departing Head’s contract, such additional payment is typically discretionary.  Regardless, we recommend offering any such parting compensation only in exchange for a release of potential claims.

It may have been many years since your school made the transition from one Head to the next.  Given the apparently high number of transitions that seem to be underway, this could be a busy 12-24 months for schools looking for their next Head of School, while the best candidates will likely have many options.  Therefore, schools are well-advised to do some careful planning, and engage experienced professionals who can offer thoughtful guidance, to navigate this transition as smoothly as possible.

Bullying Prevention Law Expanded To Cover Bullying By School Employees

[August 22, 2013]  The Massachusetts Bullying Prevention Law, M.G.L. c. 71, sec. 37O, has been amended.  The amendments, which are nominally effective July 1, 2013, expand the protections afforded to students to include bullying by school staff.

Specifically, the definition of “bullying” has been expanded to include the repeated acts of not only one or more students, but also “a member of a school staff including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional . . .

Similarly, the definition of “perpetrator” has been amended to include, in addition to a student, “. . . a member of a school staff including, but not limited to, an educator, administrator, school nurse, cafeteria worker, custodian, bus driver, athletic coach, advisor to an extracurricular activity or paraprofessional who engages in bullying or retaliation.”

Finally, subsection (d) of the law, which refers to the requisite bullying prevention and intervention plan, has been revised to provide that the plan “. . . shall apply to students and members of a school staff, including, but not limited to, educators, administrators, school nurses, cafeteria workers, custodians, bus drivers, athletic coaches, advisors to an extracurricular activity and paraprofessionals.

In light of these amendments, we recommend that each school:

  • Revise the anti-bullying policies in its student and employee handbooks to incorporate these new mandates as well as to update the policies for recent best practices;
  • Revise the bullying prevention and intervention plan on its website to incorporate these new mandates as well as to update the plan for recent best practices; and
  • Provide educational sessions for employees regarding this significant change in the law.

Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about the Massachusetts Bullying Prevention Law or its requirements.

Perpetual Enrollment Agreements: Friend Or Foe?

[July 31, 2013]  More and more often, independent schools are inquiring about so-called “perpetual” enrollment agreements (i.e., enrollment agreements that continue for the entirety of a student’s time at a school).

While perpetual enrollment agreements have the potential to minimize financial and administrative burdens typically associated with the annual enrollment agreement process, schools should be aware that implementing a perpetual enrollment agreement may raise legal questions and risks that are not associated with the annual enrollment agreement process.

First and foremost, perpetual enrollment agreements are governed by state laws that vary dramatically state-to-state, so be sure to know your state’s laws.  Be sure to carefully structure such agreements in order to maximize the likelihood that they will be legally enforceable in the particular jurisdiction.  Special consideration should be given to how the school will incorporate and address any future changes that may impact the perpetual enrollment agreement, such as an increase in the tuition price, early withdrawal of a student, and any updates to relevant documents (e.g., applicable student/parent handbook).  Second, how will a deposit be handled?  Will it be paid once at the outset of the student’s career at the school?  Will it be supplemented annually?  When will it be applied to tuition or returned to the family?  Third, be sure to carefully preserve the school’s flexibility to terminate a perpetual enrollment agreement (and the student’s enrollment at the school) in the event that the student is not a good match for the school community.  Finally, if perpetual enrollment agreements will be electronically signed by families, all of the rules that apply to electronic signatures will apply, so the school will need to integrate the relevant language into the agreements.

If your school is considering implementing a perpetual enrollment agreement, we recommend carefully evaluating the applicable laws in the school’s jurisdiction, with the assistance of legal counsel.  Please do not hesitate to contact a member of the Firm’s Education Practice Group if you have any questions about perpetual enrollment agreements or enrollment agreements in general.

Gender Identity: A New Challenge For Schools

[July 22, 2013]  Recently, a first-grader in Colorado who was born a boy but identifies as a girl was awarded the right to use a girls’ restroom at school.  In its decision, the Colorado Division of Civil Rights noted that the school’s prohibition on the first-grader’s use of the girls’ restroom had created an environment that was “objectively and subjectively hostile, intimidating or offensive.”  Similar cases have surfaced across the country.  For example, the Maine Supreme Judicial Court recently heard a similar case: the question was whether a boy who identifies as a girl is entitled to use a girls’ restroom at school, under Maine’s human rights law.

As these cases illustrate, gender identity issues at schools can create both practical and legal challenges.  Some of the questions that consistently arise in these cases are: which bathroom can the student use? Which pronoun should be used when referring to the student who is of one gender, but identifies with another?  School policies and practices that do not properly address gender identity issues can expose schools to potential legal liability.  At least thirteen states (i.e., California, Colorado, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, New Jersey, North Carolina, Oregon, Vermont, and Washington) and the District of Columbia have passed laws that specifically prohibit bullying, harassment, intimidation or discrimination on the basis of gender identity in schools.

We recommend that schools carefully evaluate applicable laws in the school’s jurisdiction.  We also recommend that schools update their policies related to anti-discrimination, anti-bullying and anti-harassment to account for potential gender identity issues.

Please do not hesitate to contact us if you have any questions regarding gender identity issues or the applicable state law that governs your policies and practices related to gender identity.

Gift Acceptance Policies and Donor Agreements: Be Careful What You Wish For

[July 17, 2013]  As non-profit organizations, educational institutions rely on the generosity of parents, alumni and others to enhance the resources of the school.  But with a poorly drafted gift policy (or no gift policy) or a verbal donor agreement (or a casually drafted written agreement), what may initially seem like a generous gift may ultimately saddle the school with expense and liability, or even a lawsuit.

The Georgetown University Law Center (the “University”) is one of the latest examples of a school embroiled in litigation as it tries to extricate itself from promises made to an alumnus donor. With the donor accused of insider trading by the Securities and Exchange Commission, the University allegedly reneged on its promise to name a fitness center after the donor; the donor has filed a lawsuit to recover $7.5 million in donations made to the University.

This high-stakes example is a signal to all educational institutions to review their gift acceptance policies and donor agreements to ensure that the school’s best interests are protected from the proverbial “wolf in sheep’s clothing.” For example, are there environmental problems with the parcel of land that a graduate would like to give to the school? What if a donor after whom the school has named a building is accused of illegal or inappropriate conduct? These are some of the important questions to consider when drafting gift acceptance policies and donor agreements.  We recommend that schools craft policies that permit them to tactfully decline a gift that may not be in the best interests of the school – now or in the future.

We also recommend that a gift acceptance policy be reviewed to ensure that the policy reflects the school’s mission (first and foremost, as a non-profit organization); includes clear procedures for the Board and Development/Advancement Office to follow when soliciting gifts; provides the school with leeway to rename gifts as the school deems appropriate; ensures confidentiality regarding any circumstances or financial information that donors do not want publicized; and describes proper procedures for documenting receipt and acknowledgement of gifts.

Donor agreements should clearly describe the nature of the gift (e.g. cash or tangible property), the purpose(s) of the gift, how the gift will be administered by the school, how the donor will be recognized, and should expressly acknowledge that the school has discretion to use the gift for an appropriate charitable purpose should the donor’s original intent in making the gift no longer be viable or deemed appropriate by the school.

With these precautions clearly in place, educational institutions will enjoy greater benefits from the generosity of donors.  Please do not hesitate to contact a member of the Firm’s Education Practice Group for assistance with drafting or revising your school’s gift acceptance policy or donor agreement.

Sexting News: More of It and More Prosecutions

[June 24, 2013]  You may have observed the recent increase in news coverage of sexting incidents involving teenagers.  For example, a 16-year-old California high school student was recently arrested on a felony charge of distributing child pornography after he posted nude photos of teenage girls via Twitter. Two of the girls (who had sent the boy naked photos) were also cited for misdemeanor distribution of obscene matter, because their actions are considered a crime under California law.  In Vermont, an 18-year-old boarding student was recently charged with a misdemeanor for possession of child pornography after investigators found nude images of a 14-year-old girl on his cell phone (again, the girl had sent the boy these photos).

These examples, and other like incidents, are a sobering reminder that although sexting may be a spur of the moment action by a teenager with no criminal intent, sexting can quickly spin completely out of the teenager’s control, and is more often being construed as a criminal act under the law.  All 50 states have laws prohibiting the production, possession and distribution of images depicting sexually explicit activities involving a minor.  Since 2009, at least 20 states have enacted laws to specifically address youth sexting (i.e., Arizona, Colorado, Connecticut, Florida, Hawaii, Illinois, Louisiana, Missouri, Nebraska, New York, New Jersey, Nevada, North Dakota, Oregon, Rhode Island, Pennsylvania, South Dakota, Texas, Utah, Vermont).

Teenagers are generally unaware that sending nude or sexually explicit photographs of themselves or other minors may subject them to serious legal consequences, the impact of which could endure for many years.  For instance, prosecution for child pornography can lead to an individual being included on the national sex offender list.

In an effort to help prevent sexting, we recommend that independent schools take the following measures:

  • Ensure that the school’s policies and practices clearly define sexting (including prohibiting such conduct by both the sender and the recipient of the explicit material), noting that it is not acceptable, and outlining the potential consequences for engaging in sexting (including potential criminal charges);
  • Ensure that the school’s policies and procedures adequately address sexting involving students, employees, volunteers and all other individuals associated with the school;
  • Evaluate the school’s protocols on related topics, such as any electronic communications policy, acceptable use policy, and policies on sexual abuse, sexual harassment, bullying, harassment, retaliation and intimidation; and
  • Educate students, parents, employees and volunteers regarding the school’s policies and procedures pertaining to electronic communications, including sexting and the serious consequences that may result from it.

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Please do not hesitate to contact us if you have any questions regarding policies and procedures that may help your school prevent and effectively respond to incidents of sexting.  The Firm offers sexting prevention programs tailored to students, parents and school employees.

Getting It Write: Does Your Student Handbook Create A Contract?

[April 29, 2013]  In a stark reminder for schools across the country, a federal court in Massachusetts recently allowed a lawsuit to go to trial on the question of whether an independent school breached its contract with a student by failing to follow the school’s student handbook. The Judge opined as follows: “the policies, regulations and procedures contained in the student handbook are contractual in nature and binding on the school and its students.”

At the Firm, we are seeing a significant increase in cases around the country brought under similar theories.  For instance, one of our school clients was recently sued (as well as the Head of School, Associate Head of School, Head of the Upper School, Board Chair and athletic coach), on a theory that the bullying plan was contractual as it was included in the student handbook, which the family alleged created a contract.

As school winds down for the year, now is the time to ensure that your student handbook is accomplishing the goals that you have established.  We urge you to contemplate these questions:

  • Do you want your students to be required to follow the student handbook?
  • Do you want your school to be required to follow the student handbook?
  • Do your students and/or parents sign an acknowledgment form for the student handbook?  If so, does the acknowledgment form create a contract or not?
  • Does your enrollment agreement reference the student handbook? If so, does it incorporate the student handbook into the enrollment agreement or simply reference it?

These questions should be considered within the context of relevant case law pertaining to student handbooks and student handbook disclaimers in each state.

We encourage each school to carefully contemplate the answers to these questions and to strive to ensure that all relevant school documents are coordinated in order to accomplish the school’s goals.

Please do not hesitate to contact us to discuss the interplay between your student handbook and the applicable state law that governs your student handbook.

Bring Your Own Device Programs

[September 27, 2012] For years, faculty members and school administrators have largely discouraged students from using their own personal electronic devices in the classroom. However, increasingly students and faculty members at independent schools are bringing their own electronic devices to campus and using them in the classroom. This month’s Net Assets Magazine highlights some of the legal issues that schools should consider when adopting Bring Your Own Device programs. Comments by Schwartz Hannum attorneys are featured in the Net Assets article available here.  Sara Goldsmith Schwartz, the President and Managing Partner of the Firm, will also be presenting on this topic at the Fall Business Conference of the Association of Independent Schools in New England.

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If you need any assistance with Bring Your Own Device policies or programs, please do not hesitate to contact any of the members of the Firm’s Education Practice Group.

Note: This article was originally published in the September-October issue of Net Assets magazine, published by NBOA.

Truth In Lending Act Obligations May Apply To Independent Schools

[August 22, 2012] Many independent schools are covered by the Truth in Lending Act (“TILA”).  Because we have seen an uptick in TILA compliance issues, we have prepared a white paper to outline TILA issues for independent schools.  In sum, we recommend that all independent schools review their tuition payment plans (and other transactions in which schools extend credit to families or employees) to determine whether the transactions are covered by TILA, and if so, comply with the disclosure requirements under TILA.

Read More

Will Hannum Comments On Penn State’s Organizational Flaws

[August 8, 2012] “The overall organization of Penn State was flawed—a kind of perfect storm of poor organizational structures, where lots of problems could fall through the cracks, and a few powerful leaders could steer the organization in the wrong direction without any checks or balances,” stated William Hannum in a recent SHRM article by Pamela Babcock entitled Penn State’s Organizational Flaws Make for Perfect Storm.

The article, focusing on the officials implicated in the Penn State scandal who never spoke with Human Resources before dealing with Jerry Sandusky’s crimes, discusses the workplace culture at the institution and offers recommendations for improving leadership and accountability with respect to HR leadership in all organizations.

To view the article in its entirety, please click here.

U.S. Department Of Education And Yale University Reach Resolution In Title IX Matter

[July 23, 2012] Yale University and the U.S. Department of Education’s Office for Civil Rights (“OCR”) recently entered into a voluntary resolution agreement resolving claims that Yale had allegedly violated Title IX of the Education Amendments of 1972 (“Title IX”) by failing to properly respond to incidents of sexual misconduct.  Title IX, which this year marks its 40th anniversary, prohibits discrimination on the basis of sex in education programs and activities operated by recipients of federal financial assistance.  The claims against Yale in part stemmed from a 2010 incident during which members of a fraternity at Yale chanted:  “No means yes!”  As part of the voluntary resolution agreement, Yale agreed to take a variety of actions, including:

  • Forming a committee on sexual misconduct, which will promptly and equitably respond to complaints of sexual misconduct under Title IX.
  • Conducting training regarding topics related to prevention and response to sexual misconduct for members of the Yale community, including training for freshmen and sophomore students.
  • Establishing the Sexual Harassment and Assault Response and Education Center that will provide referrals for students seeking services as a result of sexual misconduct.

Title IX does not simply apply to colleges and universities receiving federal financial assistance, but may also cover other institutions, including private pre-schools, elementary and secondary schools.  For example, the United States District Court for the Western District of Pennsylvania held that a religious high school was subject to Title IX because:  (1)  it participated in the E-rate program and (2) another school in the diocese (to which it belonged) participated in the National School Lunch Program.  Russo v. Diocese of Greensburg, No. 09-1169, 2010 WL 3656579 (W.D. Pa. Sept. 15, 2010).

We recommend that all educational institutions ascertain whether they fall under the mandates of Title IX.  Moreover, educational institutions that are subject to Title IX should work with legal counsel to ensure compliance with Title IX and the associated regulations.  For example, institutions subject to Title IX are required to designate an employee to coordinate compliance with Title IX, disseminate a non-discrimination policy consistent with Title IX regulations, and adopt and publish grievance procedures providing for prompt and equitable resolution of student and employee sexual misconduct complaints.

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Please do not hesitate to contact us with any questions about Title IX and how it may affect your institution.

Preparing For And Responding To Allegations Of Sexual Abuse At Educational Institutions

[July 19, 2012] In light of the recent sexual abuse scandals at educational institutions around the country, Schwartz Hannum PC has published an e-alert to assist educational institutions with preparing for and responding to allegations of sexual abuse.  The E-alert can be accessed by clicking here or by going to the E-Alert page under Resources on the Firm’s website.

School Employees As Targets Of Bullying

[July 19, 2012] You may have seen the recent news coverage of the bus monitor who was bullied by students. This incident is a sobering reminder that employees can become victims of bullying by students. As reported by news outlets around the country, the incident involved a 68-year-old school bus monitor and four seventh grade students from upstate New York. The students made inappropriate verbal remarks and touched the school bus monitor during a bus ride. The bullying incident was recorded on a cellular phone and posted on YouTube. The video received tremendous public attention and the four students involved in the incident were suspended from school – for one year.

While student-on-student bullying is frequently discussed, student-on-employee bullying has become an increasingly common problem. Clearly, schools are vulnerable to legal claims resulting from such bullying incidents.

In order to foster a culture in which bullying is not tolerated and bullying incidents are quickly and effectively resolved, we recommend that independent schools take the following measures:

  • Conduct a review of the school’s policies and procedures for preventing and responding to allegations of bullying;
  • Ensure that the school’s policies and practices are in compliance with applicable state and federal laws, as well as recommended best practices;
  • Ensure that the school’s policies and procedures adequately address bullying by and against students, employees, volunteers and all other individuals associated with the school;
  • Evaluate the school’s protocols on the related topics of hazing, intimidation and retaliation; and
  • Educate employees, parents, volunteers and students regarding the school’s policies and procedures pertaining to bullying.

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Please do not hesitate to contact us if you have any questions regarding bullying prevention and response policies, procedures, and training programs. The Firm conducts bullying prevention training programs tailored to the needs of independent schools, colleges and universities.

Allegations Of Widespread Abuse At An Elite Private School

[June 19, 2012]  The New York Times Magazine recently reported allegations of sexual abuse at the prestigious Horace Mann School in New York City − starting in the 1970s and continuing through the 1990s.  The article describes a school community in which new students were warned by their classmates about teachers who were “perverts” and in which a number of adults in power sexually molested generations of students.

The article is a stark reminder of the importance of fostering a school culture in which child abuse is not tolerated and in which both adults and children are encouraged to report inappropriate conduct.

Even though the alleged abuse at the Horace Mann School is reported to have occurred more than two decades ago, the Bronx District Attorney’s Office is in the process of collecting reports of the alleged abuse.  It has established a special hotline for reports of such abuse and has also requested that Horace Mann School provide it with “a copy of its current procedural guidelines regarding sexual abuse.”

We recommend that all independent schools promptly review and update their policies and procedures for preventing and responding to allegations of sexual abuse.  Such policies and procedures should be drafted in a straightforward fashion and be consistent with all applicable mandatory reporting laws.

Finally, we also recommend that independent schools conduct a comprehensive assessment of their traditions, rituals and practices to ensure that they have appropriate procedures in place to reduce the likelihood of abuse.  Please contact either of us for a checklist of on-campus and off-campus activities to audit as part of this process.

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Sara Goldsmith Schwartz is a member of the Class of 1983 at Horace Mann, attending the school in the late 1970’s and early 1980’s.

Is Your Fundraising Raffle Legal?

For many independent schools and other non-profit organizations and charitable causes, raffles are a common and fun way to raise funds.  However, in most states, raffles are considered a form of gambling or gaming and, as such, are subject to state regulation.

Each non-profit organization should determine whether a raffle is permitted in its state and, if so, whether state-specific legal requirements apply.  Failure to do so could trigger an investigation by the state Attorney General (or other legal authorities) and expose the organization to a burdensome audit.  Read more

Ski Trip Chaperone Eligible For Workers’ Compensation Benefits

The Massachusetts Supreme Judicial Court recently ruled that a teacher who was injured while chaperoning a class ski trip was entitled to workers’ compensation benefits for her related medical expenses.  The Court found that, as a chaperone, the teacher was not engaged in a “recreational” activity, which is an excluded activity under the Massachusetts workers’ compensation statute, M.G.L. c. 152.  Read more.