Planning for Protests: Balancing Protected Student Speech with the Duty to Maintain a Safe and Secure School

08/15/18

 

In the wake of the recent Parkland, Florida school shooting, students across the country are organizing, protesting, and advocating for stricter gun laws and increased school security at the local, state, and federal levels, with at least three national school day walkouts set to take place in the coming weeks. The largest and most publicized, “#ENOUGH,” requests that all K-12 students walk out of school for 17 minutes (symbolic of the 17 Parkland victims) on March 14th at 10:00 a.m.—the one-month anniversary of the Parkland tragedy. It is our understanding that there are more than 2000 walkouts planned across the country under the #ENOUGH banner, with 19 currently organized in South Carolina schools.

Given the potential for these walkouts, school officials are questioning whether they can and should allow students to participate during the school day, which will result in students walking out of class, most during instructional time. While some South Carolina districts have decided to prohibit their students from participating based on safety concerns related to large numbers of students gathering outside the school, others have indicated a desire to support the planned walkouts so long as they do not create a substantial disruption to the school environment or create a risk for students. In that regard, concerns have arisen as to those students who may refuse to return to class once the planned walkout time has ended, as well as those students who use the opportunity to leave the school campus.

School officials should keep four things in mind when approaching planned protests during the school day: (1) recognizing that students generally have a right to peacefully protest on school grounds during the school day; (2) providing a safe and secure space for the protest to occur; (3) determining how to handle a protest that becomes disruptive; and (4) educating staff, parents, and students on the disciplinary consequences that will occur if school policies are violated in connection with the protest.

In considering whether students have a right to participate in a walkout, the First Amendment provides that a protest, such as a walkout, is a form of protected expression. In the 1969 case of Tinker v. Des Moines Independent Community School District, the United States Supreme Court held that students could not be punished solely for wearing black armbands during the school day in protest of the Vietnam War.

The Tinker decision does not mean that school officials are barred from taking any disciplinary action against a student participating in a protest. If a school official determines that the protest has or may “materially disrupt classwork or involve substantial disorder. . .” school officials may take disciplinary against a student

without running afoul of the First Amendment. For example, if students are directed prior to a planned walkout that they will be allowed to participate within the parameters established by the school, but will be required to return to class after the walkout is over, and a student defies that directive, that student may lawfully be disciplined in accordance with the district’s student code of conduct, e.g., for the offense of “failing to follow the directive of a school official.” Likewise, if the school has established parameters for student participation in a planned walkout, such as the place where students are expected to gather and remain silent, and a student does not adhere to those parameters, the student may be disciplined.

If a school is aware that its students are planning to participate in one of the nationally promoted and scheduled walkouts, school officials should designate a space where students can safely congregate on school grounds. To alleviate concerns that a potential shooter may target that space, schools should consider not making the location of that space known ahead of time. Schools also should ensure that the selected space is adequately supervised by school staff, as well as by law enforcement, if feasible. As it is likely that not all students will participate in the walkout, schools should make certain that students who opt to remain in class are appropriately supervised. In that regard, school staff should be reminded that, unlike students, they do not have an unfettered First Amendment right to participate in a protest that occurs during instructional time.

The #ENOUGH protests are slated to take place on a specific date and at a particular time. The Action Network organizers of the #ENOUGH walkouts encourage peaceful and conflict free protest techniques. School officials should take advantage of the information on the Action Network’s website to communicate to faculty and staff what they should expect in the event a walkout occurs.

In addition to the nationally planned protests, districts should be aware that individual students or groups of students may decide to plan their own protest during a school day. In responding to the possibility of such actions, districts should consider each situation on a case-by-case basis, keeping in mind that, if the protest materially disrupts classroom instruction or creates an unsafe school environment, students may be appropriately disciplined. We do not recommend that districts issue a blanket statement that such protests will not be permitted, as such a prohibition could result in a legal challenge.

Finally, to avoid claims by students and parents/guardians that they did not understand that disciplinary sanctions could be applied to certain student conduct during a planned walkout, school officials should remind students of the applicable provisions of the student code of conduct. We also recommend that districts reach out to parents/guardians to inform them of how they are going to handle student participation in the walkouts, including the circumstances under which a student may be disciplined,

If your district has further questions about the legality of student protests and related issues, please feel free to contact us.

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Rehiring Retired Employees…Now Say That Three Times Fast!

08/15/18

 

This month, our firm has fielded a number of questions related to the process for rehiring retired, certified employees with regard to the salary cap and potential private contracting agreements.

The Salary Cap and Rehiring of Retired Teachers

S.C. Code Ann. § 9-1-1790

In 2012, the General Assembly amended S. C. Code Ann. § 9-1-1790 to place a $10,000 cap on the salary that may be earned during a calendar year by a retiree who returns to work. Once the retiree has earned $10,000, his/her retirement allowance will be discontinued for the remainder of the calendar year. This earnings limitation does not apply to those individuals who retired before January 2, 2013, or to those individuals who were 62 years old at the time of their retirement.

S.C. Code Ann. § 9-1-1795

In addition to the retirement date and age exceptions, S.C. Code § 9-1-1795 provides other circumstances under which the earnings limitation will not apply. First, if the retiree is employed in a school that has been designated by the State Board of Education as a geographic need area, the earnings cap does not apply. The S.C. Department of Education (“SCDOE”) has advised that it may ask that the law be amended to designate an entire district as a geographic need area, rather than individual schools.

If the retiree is employed to teach in the classroom in a critical academic need area, the cap also is not applicable. While report cards will not be issued until next Fall, the statute also states that, if the individual is employed in school that has received a “below average” or “unsatisfactory” academic performance rating pursuant to the Education Accountability Act, the cap does not apply. The list of critical academic need areas and geographic need areas is updated each year and may be found at the www.scstudentloan.org website.

Section 9-1-1795 also prohibits districts from hiring retirees until after May 31 of each year and states that, upon hiring a retiree, the district must notify SCDOE of that hiring and provide documentation that the district was not able to secure a qualified non-retired individual for the position.

The law is clear that, for all retirees who are returning to work pursuant to § 9-1-1795 and not subject to the earnings cap, districts must first seek to hire a qualified, non-retired applicant. Thereafter, if such a person cannot be located, the district must wait until after May 31 to offer the position to the retired individual.

The law is less clear concerning the procedures for hiring retirees who are returning to work subject to § 9-1-1790. Because § 9-1-1790 does not provide any restrictions as to the date by which a retired individual may be hired, or as to the process which must be followed, there is a strong argument that districts are not required to adhere to the May 31 date or to seek a qualified, non-retired employee, unless their specific board policy so requires. To clarify this issue, SCDOE has requested the inclusion of a proviso in the 2019 Appropriations Act to allow districts to hire retired educators on or before May 1, in keeping with the notification provisions of the Teacher Employment and Dismissal Act.

We hope that this information has been helpful. If your district has specific questions related to any of this information, please do not hesitate to contact us directly.

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Legal Alert: SC Pregnancy Accommodations Act

07/06/18

The South Carolina Pregnancy Accommodations Act (SCPAA) was signed into law on May 17, 2018. With the signing of the SCPAA, South Carolina joins twenty-two (22) other states providing protection to pregnant employees in addition to those provided under federal law. Employers are required to conspicuously post written notice of the SCPAA and its protections no later than 120 days after May 17, 2018 and also to provide new employees with a copy of the notice upon hiring.

Before the enactment of the SCPAA, South Carolina did not have a law governing the employer-employee relationship concerning pregnancy or pregnancy-related medical conditions; thus, employers were guided only by the federal Pregnancy Discrimination Act (PDA) of 1978. The PDA amended Title VII of the Civil Rights Act of 1964 by expanding the meaning of sex discrimination to include “sex discrimination on the basis of pregnancy.” The PDA sets forth the limitations imposed on an employer once it is placed on notice of an employee’s pregnancy and addresses the employee’s rights while pregnant. In essence, the PDA states that pregnant mothers “and [those with] related conditions must be treated in the same manner as other applicants or employees who are similar in their ability or inability to work.”

Similarly, the SCPAA requires employers to provide reasonable accommodations to new mothers and pregnant employees where those accommodations do not impose an undue burden on the employer and prevents employers from discriminating against pregnant employees and new mothers. The law authorizes the South Carolina Human Affairs Commission to promulgate regulations implementing the law, which could include potential penalties for employers who violate the SCPAA. Specifically, the SCPAA prohibits employers from refusing to hire or terminate an employee; isolating or limiting an employee from other employment (promotion); reducing an employee’s wages; failing to make reasonable accommodations for medical needs relating to the pregnancy, childbirth, a related medical condition stemming from pregnancy; or taking adverse action against an employee for requesting or using reasonable accommodations (retaliating against an employee).

Like the PDA, reasonable accommodations under the SCPAA may not “impose an undue hardship on the operation of the business of the employer.” Employers are not required to “construct a permanent, dedicated space for expressing milk;” “create a new position, including a light duty position for the employee, unless a light duty position would be provided for another equivalent employee;” or “hire new employees that the employer would not have otherwise hired.” However, cost effective accommodations may include: implementing more frequent bathroom and food breaks; allowing coworkers to assist the new mother with heavy-lifting; providing comfortable seating options such as stools or chairs rather than requiring a new mother to stand for hours; and modifying work schedules.

While the SCPAA does not obligate employers to automatically provide reasonable accommodations, employers should take steps to inform pregnant employees of their rights through updating their employee handbooks and policies and be willing to engage in dialogue with employees who request accommodations.

Should you have any questions about the SCPAA, please do not hesitate to contact White & Story, LLC.

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She Gets a Contract, He Gets a Contract, Everybody Gets a Contract! – A Certified Employee Primer Just In Time For Contract Renewal Season

01/16/18

Contract renewal season is right around the corner. Under state law, all certified employees must be notified before May 1st of whether the district will issue them a contract of employment for the subsequent school year. This article provides a list of best practices for your District when making these personnel decisions that will impact students for the next school year.

CONTRACTS AND EVALUATION PROCEDURES

Induction Contracts

First year teachers or those with less than one year of teaching experience will begin teaching under an induction contract. At the end of the three-year induction period, the district may (1) employ the teacher under another induction contract, (2) employ the teacher under an annual contract, or (3) terminate the teacher’s employment. Under induction contracts, teachers have substantially less due process rights compared to rights held under an annual contract.

Annual Contracts

With regard to teachers employed under annual contracts, districts have three options. Similar to the options available with the induction contract teacher, a district may (1) move a teacher to the next contract level, the “continuing” contract level; (2) retain the teacher at the same contract level; or (3) choose not to reemploy the teacher. As an annual contract teacher, the employee is required to complete a formal evaluation process. An annual contract teacher should not be moved to the continuing contract level, where the teacher is entitled to more extensive due process rights, unless the district is fully satisfied with the teacher’s overall performance. It should also be noted that a teacher who fails to successfully complete the formal evaluation process that accompanies an annual contract must be terminated and not be employed as a teacher in a public school in South Carolina for at least two years. S.C. Code Ann. § 59-26-40 states that teachers who are not recommended for reemployment under this type of contract may request a hearing before the Superintendent; the written decision of the Superintendent may be appealed to the board. The school board has discretion over whether to hear the teacher’s appeal.

Continuing Contracts

Once the teacher has successfully completed the formal evaluation process under the annual contract, the district may offer a teacher a continuing contract. The district has two options when it comes to the renewal of a continuing contract: (1) it can reemploy the teacher under his or her continuing contract or (2) it may not reemploy the teacher. Teachers on continuing contracts have rights under the S.C. Teacher Employment Dismissal Act (“TEDA”). If a continuing contract teacher is not reemployed, he or she may request a hearing before the board. It is important to keep in mind that if the Superintendent fails to notify the teacher in writing before May 1st, the teacher is considered reemployed as if the board renewed his or her contract.

DOCUMENTING PERFORMANCE ISSUES

There are a number of different types of “documentation,” and the following may prove to be useful to you in making personnel decisions concerning certified employees: (1) personal notes to the file made by an administrator after observing or talking with a teacher; (2) informal memos to the employee that are not copied to the personnel file; (3) attendance records, leave slips, grade book documentation, etc.; (4) formal letters of reprimand that are placed in the employee’s personnel file; (5) formal evaluation documents; (6) complaints from other staff and parents; and (7) summaries from classroom observations.

Keeping accurate documentation can minimize any misunderstandings about what was said in a conference and can bring the seriousness of a situation to the employee’s attention. The following is a non-exhaustive list of occurrences you may want to document: (1) specific incidents of misconduct; (2) feedback following an observation; (3) concerns that create a pattern of problems; and (4) summaries of conferences with the employee. When creating documentation, make certain the letters/memos that are sent to an employee are helpful—clearly define the problem; avoid making vague references to “my concerns about your performance” or “the incident that occurred in your classroom last week.” This will prevent potential miscommunication and help place the employee on notice that his or her behavior is not acceptable. Additionally, provide a timeframe for improvement and the possible consequences if improvement is not demonstrated. As always, watch spelling, punctuation and grammar; you never know who might be reading your letter.

There are many options available to districts when renewal decisions are made. Because due process rights increase at each subsequent contract level, resulting in a more complex nonrenewal process, districts should not move teachers to a higher contract level without giving careful consideration to whether retaining the teacher at the same contract level would give the district more of an opportunity to assess the teacher’s potential. In all cases, districts bear the burden of establishing that all State law requirements and State Department of Education guidelines have been met and that there are sufficient grounds to warrant contract nonrenewal. We wish you luck as you make these important decisions over the next month; if you have any questions, please do not hesitate to contact us.

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All I Want for Christmas is…a Refresher on Classified Employees

12/11/17

Unlike certified employees, specific procedures for the employment and dismissal of classified/noncertified employees are not detailed under South Carolina law. As a result, school districts across the State have varying policies and practices in place.  As we wrap-up the end of the calendar year, now is an appropriate time to review the various ways to handle classified employment matters and to determine whether any revisions should be made to applicable district policies.

What type of notice is required when hiring a classified employee?

            Classified employees do not have a statutory right to an employment contract or any statutory due process rights.  However, under the S.C. Payment of Wages Act, an employee must be given written notice of the terms and conditions of his or her employment. Those terms and conditions may be communicated to classified employees in a number of ways.  One option is to issue a one-time letter to the classified employee at the time of hire, specifying that the employment period is ongoing, unless the employee is terminated in accordance with district policy.  Another option is to issue the classified employee a letter at the time of hire specifying the employment period, such as nine months and, thereafter, on an annual basis, to issue a “letter of agreement” which specifies the employment period for the subsequent year. A third option is to issue the classified employee a letter at the time of hire specifying the employment period and, thereafter, on an annual basis, to issue a “letter of intent” indicating that the district intends to continue the employment for the subsequent year.

            The first option is used most often with twelve-month employees and allows the district to avoid re-issuing letters on an annual basis.  With this option, however, the employee’s expectation of indefinite employment is greater, and the district may bear the burden of establishing specific grounds to discontinue the employment relationship.  The “letter of agreement” option simplifies the process of discontinuing the employment at the end of each employment period when any reason to do so exists, including budget cuts and program changes.  As to the “letter of intent” option, the employee is clearly on notice that there is no expectation of continued employment for the subsequent year, allowing the district to discontinue the employment at any time, even prior to the beginning of the new employment period, if any reason to do so arises.  Whatever option is used, the letter to the employee should specify that the letter is not a contract and does not create any contractual rights or entitlements.

Who has the authority to discontinue employment and what procedures are required?

            State law does not specify who has the authority to discontinue the employment of a classified employee.  In most districts, that authority is delegated to the superintendent pursuant to board policy.  As a result, the notice to the employee regarding dismissal should come from the superintendent.  As a practical matter, the superintendent may wish to have the board subsequently affirm any termination or may simply inform the board of the dismissal decision.

            School boards are not required by state law to hear employee grievances or to grant a hearing request for classified employee terminations.  Most districts develop grievance policies that allow the board discretion when determining whether to grant a hearing.  Grievance policies also give school boards a limited opportunity to become involved in certain personnel matters where they otherwise would have no authority to get involved.  There are three ways that districts can choose to handle such grievances.  First, the board can enact no policy addressing employee grievances.  In this situation, consistency is key!  Without policy guidance, similar grievances must be carefully handled in a way that reflects uniformity for all employees and to avoid claims of discriminatory treatment and/or disparate impact.  The second option is for the board to develop a policy that authorizes the Superintendent to be the final decision-maker.  Under this policy, the board would still have no involvement, as the Superintendent would hear the grievance and make the final determination.  The last option includes board involvement.  Implementing a policy that allows for board discretion gives the board limited authority to hear employee grievances.  This type of policy should be drafted in a way that promotes discretion and does not allow every grievance an automatic hearing.

            Whatever procedures are followed with regard to the hiring and dismissal of classified employees, it is important to ensure that current board policies reflect the procedures actually being followed. If you have any questions about this article, please do not hesitate to contact us for assistance.  White & Story sincerely hopes that you have a happy holiday season!

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