+

Legal Update 2015Presented by Lusk & Albertson

L’Anse Creuse Public SchoolsAdministrator In-ServiceTuesday, August 18thwww.LuskAlbertson.com/LCPS

+Distribution of Topics

Social MediaSearching Student Devices

Guns in Schools

EvaluationLayoff & Recall

Teacher Placement

Kevin T. Sutton Robert T. Schindler

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+Recent Developments House Bill 4791

What? Requires all public school districts to have social media policy “Shall adopt and implement a policy regulating social media

interaction between pupils and school personnel” Must be posted to District web site Board “shall consult” with school personnel in developing Notify school personnel once adopted

When? Introduced July 15, 2015 Hoped to be effective 15-16 SY; not likely

How? Districts will have to develop own policies that address

conduct How restrictive will policies be?

Fundamental challenges

+Why is this Needed?

Prevalence of digital communications Proliferation of student-staff issues Absence of firm guidance for educators Misunderstanding regarding limitations on free speech HEADLINES …

Dabo Swinney Bans Clemson

Players From Using Social

Media

Minnesota AD Resigns For Sexually Harassing Colleagues Via Text Message

Disney confirms selfie stick ban at

theme parks

+Dealing with Online Speech

It’s going to happen, how do we deal with it? District Policy Student Code of Conduct Digital Communications Policy, if applicable

Beyond School Rules First Amendment implications/analysis

+This is Speech After All … Right?!? Tinker v. Des Moines Ind. Sch. Dist. (1969)

USSC recognizes students’ right to free speech on and off campus

Students have right to free speech unless it “materially disrupts class work or involves a substantial disorder or invasion of the rights of others”

Hazelwood Sch. Dist. v. Kuhlmeir (1980) First Amendment protections did not compel a public school

to affirmatively sponsor speech that conflicts with its “legitimate pedagogical goals” even though same speech could not be regulated outside of school

+Analysis of Speech

Key Question:

Does the speech from outside school walls cause a substantial disruption in

school?

If YES, discipline may be appropriate

If NO, discipline not likely appropriate

+Basic Principles Extracted

Assessing a “Substantial Disruption” Use Caution Be Realistic Inconvenience Not Enough Embarrassment Not Enough A “Buzz” Not Enough Adults Need Thicker Skin Key Elements

Violence Threats Safety Criminal Activity

Courts Don’t Always Cooperate

+The Case?

Taylor Bell aka

T-Bizzle

+Bell v. Itawamba School District Facts

5th Circuit Court of Appeals 2-1 Decision … in favor of “T-Bizzle”

[W]e decide only that … Tinker … would not afford the School Board a defense for its violation of Bell’s First Amendment rights because the evidence does not support a finding, as would be required by Tinker, that Bell’s song either substantially disrupted the school’s work or discipline or that the school officials reasonably could have forecasted such a disruption.

For these reasons, … judgment is RENDERED in favor of Taylor Bell against the School Board on his First Amendment claim. The case is REMANDED, and the district court is DIRECTED to award Bell nominal damages, court costs, appropriate attorneys’ fees, and an injunction ordering the School Board to expunge all references to the incident at issue from Bell’s school records.

Entire 5th Circuit to rehear case The panel said the Supreme Court "has not decided whether, or, if so, under what circumstances, a public school may regulate students' online, off-campus speech, and it is not necessary or appropriate for us to anticipate such a decision here."

+Searching Accounts/Devices Internet Privacy Protection Act (“IPPA”)

Passed in 2012 Sec. 4. An educational institution shall not do any of the

following: (a) Request a student or prospective student to grant

access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account.

(b) Expel, discipline, fail to admit, or otherwise penalize a student or prospective student for failure to grant access to, allow observation of, or disclose information that allows access to or observation of the student’s or prospective student’s personal internet account.

NOTE: Sec. 3 provides similar restrictions for employers

+Search & Seizure

Standard for Police Warrant for search

Standard for School Administrators Two-Step Inquiry [TLO v. New Jersey]

Reason to suspect student violated SCC? Reason to suspect evidence of violation of SCC exists in the area you want to

investigate/look? Confirmed by GC v. Owensboro Public Schools (March 2013)

Things v. Information Things

Search for Stolen iPad / Weapon / Drugs Information

Search for Texts / Photos Consent Issues

Can be addressed via policy Reasonable expectation of privacy? Use what you have at your disposal!

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+Recent Developments

Current state of Michigan law

Legal challenges

Recent decisions

A solution on the horizon?

+Updates on important labor law issuesTeacher Placement, Evaluation, and Layoff and Recall

+ Teacher Placement

Can we really put them wherever we want???

+Teacher Placement

2011 Public Act 103 added “teacher placement” to the list of “prohibited subjects of bargaining”

A “prohibited subject of bargaining” is described by the statute (MCL 423.215) as follows: (3) Collective bargaining between a public school employer

and a bargaining representative of its employees shall not include any of the following subjects:

(4) . . . the matters described in subsection (3) are prohibited subjects of bargaining . . . and, for the purposes of this act, are within the sole authority of the public school employer to decide.

+Teacher Placement

Significance of Prohibited Subjects: Either party to negotiations may refuse to discuss a prohibited

subject (although may voluntarily do so) Public employer may act unilaterally with respect to any

prohibited subject without bargaining to agreement or impasse Neither party may maintain to impasse a proposal pertaining

to a prohibited subject Any provision in a collective bargaining agreement covering a

prohibited subject is not enforceable Either party may refuse to continue or carry over within a new

contract any existing provision pertaining to a prohibited subject A party may not insist on the inclusion of a prohibited subject in

bargaining once the other side has notified it will not bargain over it

+Teacher Placement

Specifically, the prohibited subject relates to: Any decision made by the public school employer

regarding teacher placement, or the impact of that decision on an individual employee or the bargaining unit

The Michigan Court of Appeals has recently interpreted this language very broadly in Ionia Public Schools v Ionia Education Ass’n, COA Case No. 321728 (July 28, 2015).

+Teacher Placement

The Ionia Court held that the broad language used demonstrates as follows: the Legislature intended to remove from the ambit of

bargaining any decision concerning the assignment or placement of teachers, and that any decision-making about teacher placement or assignments is to be within the sole discretion of the employer. The broad language used in the statute necessarily includes any decision-making process as well; consequently, policies and procedures used to make teacher placement decisions such as those at issue in the instant case undoubtedly fall within the broad reach of "any decision" regarding teacher placement. Therefore, the plain language of § 15(3)(j) precludes bargaining over the bid-bump procedure, or any other procedure utilized in teacher placement.

+Teacher Placement

So what does this mean? School District has the sole and exclusive authority to make

placement decisions This relates to initial placement, voluntary or involuntary

transfers, or even hiring or promotion type decisions Any language currently contained in the CBA would be

unenforceable by the union Notice?

+

Teacher and Administrator EvaluationWhat applies for 2015-16?

+Evaluation

What do we already know?

Evaluations system must: Be rigorous, fair, and transparent Must be developed with input from teachers and administrators Evaluate student growth using effective measures Student growth data must be a significant factor in evaluations Must be rated using four categories: highly effective, effective,

minimally effective, and ineffective

+Evaluation

What’s new for 2015-16? 50% of an evaluation must be based on student growth

data Must use at least 3 years of data if available Year end evaluation must include goals for the next year First year probationer or teacher that received minimally

effective or ineffective must receive an individualized development plan

+Evaluation

What’s new for 2015-16 (cont.)? First year probationer or teacher that received minimally

effective or ineffective must receive a mid-year progress report the following year

Evaluations must be based on multiple observations A teacher rated ineffective 3 consecutive years must be

discharged A teacher rated highly effective 3 consecutive years may be

evaluated biennially

+Evaluation

Importance of following the law: Garden City EA v Garden City PS (2013)

No cause of action under section 1249 Summer v Southfield Public Schools (2015)

Agree no cause of action, but if 1249 evaluation is used to make a determination for a 1248 personnel decision, then whether 1249 was followed is pertinent to a cause of action under section 1248.

+ Layoff and Recall

Making decisions on who stays and who goes

+Personnel Decisions

“Personnel Decisions” for “teachers” dictated by section 1248

Under 1248: “personnel decision” includes layoff or recall or hiring after a staff

or program reduction The goal of personnel decisions is to “retain effective teachers” No teacher receiving an ineffective evaluation shall be given “any

preference that would result in them being retained over a teacher” given any other evaluation

+Personnel Decisions

Under 1248 (cont.): Effectiveness shall be measured by 1249 evaluation system; Personnel decisions shall be based on:

1) Individual performance 2) Significant, relevant accomplishments and contributions 3) Relevant special training

Seniority or tenure cannot be a primary or determining factor, but may be used if the 3 items above are all equal

+Personnel Decisions

What recourse is there for a teacher subject to layoff or not recalled? May not file a grievance/arbitration – prohibited subject of

bargaining May not seek review by the State Tenure Commission –

Baumgartner v Perry Public Schools (2015) May seek review by state circuit court – MCL 380.1248(3)

and Summer v Southfield PS (2015)

+Additional Questions?

Kevin T. SuttonDirect: (248) 988-5695Cell: (734) 377-7400

Email: KSutton@LuskAlbertson.com

Robert T. SchindlerDirect: (248) 988-5696Cell: (248) 431-5401

Email: RSchindler@LuskAlbertson.com