School Law in Review 2008

Included here is a digest of the papers presented at the Council’s 2008 Annual School Law Seminar as well as the individual papers on the following topics: 403(b) plans, race in student assignment, board liability, litigation holds, special education litigation, immigration, free speech, threat assessment, and crisis response. All articles are available in word-searchable PDF format.

Additional Resources

School Law in Review 2008 Digest
This is a digest of the papers presented at the Council’s 2008 Annual School Law Seminar.

Crisis Response and Crisis Recovery: The Lawyer’s Role – Practical Advice from Columbine and Platte Canyon
This article contains practical advice garnered through the experience of working with school officials from Jefferson County (Colorado) School District following the attack on Columbine High School, as well as school officials from Platte Canyon (Colorado) School District in September 2006 when an outsider entered the school, took several students hostage, and murdered one before he was killed by police.

Threat Assessment, Crisis Response, and Violence Prevention: Expected Challenges After Columbine and Virginia Tech
This article covers the joint study conducted by the United States Secret Service and United States Department of Education entitled Threat Assessment in Schools: A Guide to Managing Threatening Situations and to Creating Safe School Climates, which was initiated as a result of the deaths at Columbine High School. The author has used the information from the joint study to assist school districts which are confronted by threatening situations.

Garcetti Has Some Punch! How to Use the Decision to Win Free Speech Claims
The Garcetti defense has proven to be of great significance. A review of the school employee free speech cases that have been dismissed on the basis of Garcetti reveals the broad range of free speech disputes and the practical application of Garcetti to those disputes. This article includes a list of do's and dont's in defending claims.

Transporting Students with Disabilities
Transporting students with disabilities has become an increasingly treacherous road for school districts to navigate. Several federal laws—the Individuals with Disabilities Education Act, Section 504 of Rehabilitation Act of 1973, and Title II of the Americans with Disabilities Act—create transportation obligations for school districts, and the failure to comply with these obligations can result in severe consequences. This article provides an overview of a school district's obligations under each law and summarizes some of the more complicated legal obstacles school districts must maneuver.

Recent Developments in Immigration Law: An Update for School Attorneys
The most significant recent development in immigration law was a non-event: Congress’s failure to pass legislation to reform what is universally acknowledged to be a broken immigration system. Congress’s inaction has prompted action by the Department of Homeland Security (DHS), the Department of Labor (DOL), and by state and even local governments, all attempting to address the system’s deficiencies. This article will primarily discuss these federal administrative and non-federal governmental actions and initiatives. It will also discuss other effects of the failure to reform the underlying legal framework for immigration, the Immigration and Nationality Act (INA).

Strategies to Limit School District Exposure to a Parent’s Attorney Fees in Special Education Litigation
The potential for paying attorney fees should not cause a school district to raise the white flag after receiving a hearing request. Depending on the merits of the claims alleged by the parents, a school district may employ a number of strategies to limit its liability for attorney fees. This article will explore these various strategies and review recent federal case law on this subject.

The Attorney-Client Privilege and the School Board Attorney: Pitfalls and Pointers
Confidentiality is the cornerstone of the lawyer-client relationship. The attorney-client privilege is the oldest of the privileges for confidential communications known to the common law. Its availability to public sector clients has been widely assumed, but only recently have courts and scholars begun to focus squarely on whether the privilege exists, and the special obligations placed on government lawyers. This article will explore the nature and extent of the attorney-client privilege as applied to government officials and agencies, with particular attention to the challenges facing school board attorneys.

Litigation Holds in a K-12 World
The past five years have wrought remarkable changes in discovery for litigation. Specifically, requests for electronic discovery are far more prevalent than requests for paper discovery, which has resulted in a plethora of new legal issues: how to identify and search for relevant electronic information, how to produce such data, and who bears the costs associated with these processes.

A Board Policy Conundrum: Can Board Policy Create Liability?
School boards make polices; administrators implement policy. How often have we thought about the impact of those policies on the school district that does not follow its own policies? What about claims by third parties that they have been injured due to the policy’s violations? Can board policies create liability where it might not otherwise exist? This article discusses the major liability concerns that may arise from the creation of board policies.

PICS v. Seattle School District No. 1 and the Demise of Race-Based Student Assignments
This essay is divided into three parts: (1) an analysis of the recent Supreme Court decision striking down race-based student assignments; (2) a discussion of why the key question sidestepped by the Court—namely whether there is any compelling educational interest in such discrimination—ought to be answered in the negative; and (3) the likely practical impact of the Court’s decision.

Keeping Alive the Spirit of Brown v. Board of Education After the Seattle and Louisville Decisions
Since the release of the decision in Parents Involved In Community Schools v. Seattle School District No.1 there has been much discussion whether the cases culminating in, and emanating from, Brown v. Board of Education continue to set the standards for ensuring equal educational opportunity for all children in our nation.

Keeping Alive the Spirit of Brown v. Board of Education
While altering the landscape of school integration, the Seattle/Louisville decision did not provide a clear set of rules and principles for school districts to follow, and created some confusion about what school districts and communities can do to promote integration in their schools.

IRS Section 409A Nonqualified Deferred Compensation Plans as Applicable to
Internal Revenue Code (Code) section 409A provides that, unless certain requirements are met, amounts deferred under a nonqualified deferred compensation plan for all taxable years are currently includible in gross income to the extent not subject to a substantial risk of forfeiture and not previously included in gross income. In addition, such amounts are subject to immediate income tax, a 20% federal excise tax plus interest and penalties.

The Changing World of 403(b) Plan Requirements as Applicable to K-12 Public Schools
403(b) plans are available only for employees of public schools, employees of certain tax-exempt organizations, and certain ministers. As further explained below, compliance requirements with specific areas of the law regulating 403(b) plans depend on the nature of the employer.

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