Archive for the ‘Education Law’ Category


Posted on: December 31st, 2014

Would it surprise you to learn that Title IX of the Education Amendments of 1972 does not prohibit single-sex classes in public schools?  Well, it doesn’t!  On December 1, 2014, the U.S. DOE’s Office for Civil Rights issued FAQs on Title IX and single-sex classes.  As a graduate of a single sex middle school and high school I find the idea of the use of single-sex classrooms to achieve higher educational performance fascinating.

Single-Sex Classes

The salient points that I took away from my review of the FAQs are as follows:

1)         The regulations regarding single-sex classes apply to every coeducational, non-vocational public elementary and secondary school, including traditional, charter, and magnet schools and also apply to coeducational private schools that receive federal financial assistance for the DOE (unless the private school is controlled by a religious organization and Title IX’s requirements conflict with the organization’s religious tenets).

2)         Vocational schools that receive federal financial assistance may never limit classes to one sex.

3)         The circumstances under with public coeducational, non-vocational schools can offer single sex classes are generally restricted to: a) contact sports in physical education classes; b) classes or portions of classes that deal with human sexuality; and c) classes and extracurriculars that meet the criteria discussed below.

4)         The criteria that must be met to offer single sex classes are that the single-sex class is based on the school’s important objective to either improve it student’s educational achievement through diverse educational opportunities (the diversity objective), or to meet the particular identified educational needs of its students (the needs objective).  Additionally, the single-sex class must be substantially related to achieving the important objection.

5)         The four other requirements that schools must meet in order to comply with Title IX are that it must implement its educational objective in an evenhanded manner; it must ensure that student enrollment in single-sex classes is completely voluntary; it must provide a substantially equal coeducational class in the same subject; and it must conduct periodic evaluations of the single-sex class not less than every two years to determine its compliance with Title IX.

6)         OCR warns that schools should adopt their written justification for the diversity objective or the needs objective prior to offering a single-sex class because if schools fail to do so, OCR will assume that the school did not go through its due diligence and establish the justification for the single-sex class before it actually offered the class.  And yes, that strikes me as a “guilty until proven innocent approach.”

7)         OCR mentions two primary means by which schools can prove that a single-sex class is substantially related to its important educational objective: 1) comparator schools, and 2) research evidence.

8)         Although the use of single-sex classes is highly circumscribed, it is a tool that educators should not discount if they believe that the evidence supports the application of such classes.

The FAQs is full of examples and a more in depth discussion of the regulations if you are curious and want to learn more.

The purpose of this blog is to provide information. It is neither legal advice nor is it an advertisement for legal services.  Please consult legal counsel for legal advice regarding single-sex classes or Title IX.


Thanks for reading! – Debra




Charter Schools and Federal Civil Rights Law

Posted on: October 17th, 2014

school children

Charter schools are subject to the same federal civil rights laws that apply to traditional public schools. The U.S. Department of Education Office for Civil Rights (“OCR”) published a Dear Colleague Letter dated May 14, 2014 as a reminder to charter schools of their obligations under federal law. Some of the highlights of the Dear Colleague Letter are mentioned below.

  • Charter schools may not discriminate in admissions on the basis of race, color, national origin or disability.
  •  Charter school parents who are not proficient in English must receive meaningful access to the same admissions information provided to English-proficient parents. Eligibility criteria for admissions must be nondiscriminatory. Charter schools in a district subject to a desegregation plan must be operated consistent with the desegregation plan.
  •  Charter schools may not discriminate on the basis of disability.
  •  If a charter school wishes to promote racial diversity, it may pursue a variety of approaches in admissions, recruiting, school location, attendance boundaries. See further guidance from OCR in the Dear Colleague Letter to avoid running afoul of the law.
  •  Every student in a charter school with a disability must be provided a free appropriate public education and both Section 504 of the Rehabilitation Act of 1973 and the Individuals with Disabilities in Education Act must be adhered to.
  •  Charter schools must take affirmative steps to help English-language learners to overcome language barriers by offering timely identification and providing effective language instruction.
  •  Charter schools, like all public schools, are obligated to avoid and redress discrimination in the administration of school discipline on the basis of race, color, national origin, disability and sex.

The list above is not an exhaustive list of legal requirements that apply to charter schools, but is a summary of important points contained in the Dear Colleague Letter. OCR offers technical assistance to schools that seek help in adhering to federal civil rights laws. The purpose of this blog is to provide information. It is neither legal advice nor is it an advertisement for legal services.  Please consult legal counsel for legal advice regarding charter schools.   Thanks for reading! – Debra


Posted on: May 21st, 2014

by Debra Golymbieski, Partner

apple-on-the-desk-1428611-m freeimages dot comThe Family and Medical Leave Act (FMLA) provides in pertinent part that public as well as private elementary and secondary schools are covered employers without regard to the number of employees employed. (29 C.F.R. § 825.104) But that is not the end of the inquiry. The regulations also provide that even though educational institutions, including public and private K-12 institutions, are covered by FMLA without regard to number of employees, the usual requirements for employees to be eligible do apply, including employment at a worksite where at least 50 employees are employed within 75 miles. 29 C.F.R. § 825.600

The Department of Labor provides the following illustration: For example, employees of a rural school would not be eligible for FMLA leave if the school has fewer than 50 employees and there are no other schools under the jurisdiction of the same employer (usually, a school board) within 75 miles. (29 C.F.R. § 825.600)

Rather than applying the 50 employee requirement to determine whether the educational institution is covered, the analysis will hinge on whether the employee qualifies. Why is this somewhat esoteric point important to private K-12 schools? Because it will impact the way private schools draft their policies and/or employee handbooks and how they administer the policies. Leave policies are one of the most frequently referenced policies of any employer, including schools. Appreciating this point will be valuable when drafting and administering the leave policy and/or employee handbook.

The purpose of this blog is to provide information. It is neither legal advice nor is it an advertisement for legal services. Please consult your legal counsel for legal advice regarding the FMLA.

Thanks for reading! – Debra




It’s Smart Business to Establish a Contract Process in Schools

Posted on: April 10th, 2014

by Debra Golymbieski, Partner

LaptopHandsImplement a contract process? Yeah, right! Contracts are boring and time consuming and schools are understaffed as it is. “We’ll just keep squeaking by as we have been and hope that the contractor performs, we don’t get sued and no one gets hurt.” Sound familiar?

Why does your public or private school need a contract process? Whether you are a public school system, a charter school or a private non-profit school, chances are that you are audited annually. Having a good contract process in place will go a long way in assisting your staff to respond to auditor requests and may help your organization avoid audit findings. Not to mention, a good contract process will help you monitor expenditures and will protect the school from liability when necessary.

What are some areas that are typically addressed in a contract process?

  • Identifying the person in your organization who is primarily responsible for shepherding the contract through the process at all stages. This establishes a sense of “ownership” in the contractual relationship that is sometimes lacking in organizations.
  • Monitoring any public bidding requirements.
  • Identifying with specificity the contractor, including all contact information.
  • Clearly establishing the purpose of the contract.
  • Establishing the cost of the contract.
  • Obtaining any state required attachments or approvals.
  • Determining whether the contractor requires a criminal background check because they will be working with children.
  • Creating templates that can be used often.
  • Legal review will be provided for.
  • Ascertaining how much contract administration/oversight is needed for the contract. Will this contract be performed in a very short time or will the contract have a longer term that will require oversight from your organization’s identified contract administrator?
  • If the contract requires oversight, milestones, responsibilities and deliverables will be clearly mapped out as well as key dates and meetings will be scheduled with the contractor as needed.
  • Your organization’s key responsibilities under the contract will be clearly identified.
  • Invoicing procedures will be addressed and monitored.
  • Contract closeout procedures will be addressed.
  • Last but not least, a record retention process for all of the school’s contracts will be established, whether there is a centralized location for retention or a decentralized method (if dealing with a multi-site system or school).

Educators don’t typically like to deal with contracts, and sometimes a significant culture change within the organization and much education is required. However, an investment in establishing a good contract process on the front end could save an organization a great deal of trouble later on.

The purpose of this blog is to provide information. It is neither legal advice nor is it an advertisement for legal services.  Please consult your legal counsel for legal advice regarding contracts.

Ready, Set — Eat Healthy! Is your school ready to implement the HHFKA?

Posted on: April 3rd, 2014

by Debra Golymbieski, Partner

Summer fruit salad ingredients, strawberry, blackberry, cherryIs your school ready to implement the Healthy, Hunger-Free Kids Act of 2010 (HHFKA)?  Any public or private school that participates in the National School Lunch Program (NSLP) or the School Breakfast Program (SBP) must adhere to the new competitive food and beverage regulations of the USDA’s Interim Final Rule implementing the HHFKA. The competitive food and beverage portion of the USDA Interim Final Rule becomes effective on July 1, 2014.

Prior to the enactment of the HHFKA, the Secretary of Agriculture was limited to regulating only those competitive foods and beverages sold in the food service area of the school during meal periods. The HHFKA allows the Secretary of Agriculture to regulate the nutritional standards for ALL foods and beverages sold outside the school meal programs (i.e., NSLP & SBP), on the school campus, at any time during the school day. “School day” is defined as the period from the midnight before to 30 minutes after the end of the official school day.

The USDA’s rules are required to be consistent with the most recent Dietary Guidelines for Americans but the Secretary of Agriculture was also free to consider other authoritative scientific recommendations for nutrition standards in implementing the Interim Final Rule. The rules provide specific limitations on sugar, fat and sodium content as well as caloric restrictions and other content restrictions. Nutrition directors and school nurses at the local school level are encouraged to become familiar with the Interim Final Rule and perform a review of the competitive foods and beverages that are available during the school day to determine their compliance with the new rule.

Does this only apply to food the school sells or to food anyone sells on the school campus? The rule applies to all competitive foods and beverages sold by any person or entity on the school campus during the school day. What about bake sales and other food fundraisers? The HHFKA and the Interim Final Rule provide a special exemption for foods and beverages that do not meet the requirements of the rule if they are sold for the purpose of conducting infrequent school-sponsored fundraisers. The key word here is “infrequent.” The Interim Final Rule leaves it up to state educational agencies to define “infrequent,” so look for an amendment to your state rules on this point. The law makes it clear that vending machines, school stores, snack bars and à la carte sales are not considered “infrequent fundraisers” and must adhere to the Interim Final Rule.  Many schools have moved from candy or food fundraisers to gift wrap, t-shirts or other non-food items, which may be a wise decision under the new rule.

The HHFKA and the Interim Final Rule contain additional information and requirements. The purpose of this blog is to provide information. It is neither legal advice nor is it an advertisement for legal services. Please consult your legal counsel for legal advice regarding the HHFKA and the Interim Final Rule.