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GEORGIA ASSOCIATION OF EDUCATION GEORGIA ASSOCIATION OF EDUCATION LEADERSLEADERS

LEGAL ISSUES IMPACTING THE FUTURE OF PUBLIC EDUCATION

February 3, 2009

Phil HartleyHarben, Hartley & Hawkins, LLP

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Impact on the Immediate Impact on the Immediate FutureFuture

It’s the Economy, Stupid!How much will be cut by the State?How much will be coming from the Federal

Government?So how do we deal with employment

issues, RIF’s, benefits, local supplements, furloughs, budgets, millage rates, etc, etc??

So how do we teach with students?

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GunsGunsAllowing permitted guns on all public

property, includinga school , butshall be authorized to allow a person to

possess a firearm within a school safety zone provided that such firearm in stored in a room or storage facility within the school safety zone, in a closed container, and separated from its ammunition.

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Religious Viewpoint Anti-Religious Viewpoint Anti-discrimination Actdiscrimination Act

Shall provide for the establishment of a limited public forum for student speakers at all school events at which a student is to speak publicly

Imposes specific policy written into statuteUnnecessary due to federal Constitution and

lawConflicts with federal law and Constitution

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SHAPE Bill – HB 229SHAPE Bill – HB 229Coaches measuring body fat?Principals visually assessing student body?Fitness assessments as approved by SBOESBOE standards in student health and PERecognition programs

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Four Day WeekFour Day WeekHB 193 and 198Reduces the 180 day calendar to a

certain number of hours set by statute or SBOE

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School Board bill – SB 84School Board bill – SB 84“Although there are many measures of

success, one in clearly essential …System accreditation Governor may remove members where

system on probation Removal from office of board member for

violation of conflict of interestSBOE to develop code of ethics

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So what does it have to do So what does it have to do with me?with me?

No person shall be eligible to be superintendent who has an immediate family member hired as or promoted to a principal, assistant principal, or system administrative staff on and and after July 1, 2009 by that school system

School district staff employed before July 1, 2009 are not impacted by this provision when a relative is named superintendent 

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Choice/VouchersChoice/VouchersUniversal choice for private and public

schoolsMoney sent to parents and taken from

public school (remember HB881)Parents must transportNo accountability for private schoolsMandated choice within your system – HB

251

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Expanded FMLA Rights for Expanded FMLA Rights for Military FamiliesMilitary Families

Part of “National Defense Authorization Act for FY 2008”

New Leave Entitlement (effective 01/28/08) – Up to 26 weeks of unpaid leave during one 12-

month period for the employee to care for spouse, child, parent, or next of kin who is a service member undergoing medical treatment, recuperation or therapy, is on outpatient status or is on the temporary disabled retired list for a serious injury or illness (incurred on active duty that may render medically unfit to perform duties)

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FMLA cont’dFMLA cont’d

New Qualifying Reason for Leave (effective when DOL issues new FMLA regulations)– 12 weeks of unpaid leave during any 12-month period

for “any qualifying exigency” when the employee’s spouse, child, or parent is on active duty or is notified of an impending call or order to active duty – or when the service member is already on active duty – in the Armed Forces (including Reserves and National Guard) in support of a “contingency operation”

Are more changes coming?

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Changes to Americans with Changes to Americans with Disabilities ActDisabilities Act

The term disability is to be “construed in favor of broad coverage of individuals”

Disabilities that are episodic or in remission qualify if substantially limits an activity when active

Mitigating measures not to be considered

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What is a major life activity?What is a major life activity? Caring for one’s self Performing manual tasks Seeing Hearing Eating Sleeping Walking Standing Lifting Bending

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And more….And more…. Speaking Breathing Learning Reading Concentrating Thinking Communicating Working The operation of a major bodily function

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Even those without Even those without disability are protected if disability are protected if

you regard them as having a you regard them as having a disabilitydisability

But doesn’t apply to transitory or minor impairments

Those lasting less than 6 months

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Section 504 made Section 504 made consistent with new ADAconsistent with new ADA

– Both were effective1/1/09

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Changes in IDEA regsChanges in IDEA regs

If parent withdraws consent for special education services, District may not challenge this decision

Student loses all right to special education, including discipline protection

District must provide PWN before ceasing services

Option transfers to student at 18

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What is happening in the What is happening in the courts?courts?

US Supreme Court decision on Title IX/1983 suits

Possible new legislation in Congress that would make lawsuits and verdicts much easier

The use of federal cases to avoid immunity? New decision from the 11th circuit in Rockdale

County football practice case New decision from state court in time out room

case

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But what are Georgia courts But what are Georgia courts saying about immunity?saying about immunity?

Cook County case and ministerial duty created for receptionist by principal’s directive

Forsyth County case and ministerial duty created for teacher by statute requiring goggles

Practical Suggestions– Recognize the expertise and allow appropriate

discretion by school employees– Be careful of policies and directives that are overly

explicit

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QUESTIONS?QUESTIONS?

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SEE YOU IN JEKYLL!!SEE YOU IN JEKYLL!!