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Legal Updates

Independent Schools: Time To Update Your Policies And Procedures!

Although we are now well into 2014, it is not too late for independent schools to take a number of important steps to ensure compliance with legal requirements and best practices.  We recommend that school administrators review and update existing policies and practices, in addition to making sure that new policies are in place to address the key components of independent school life.  With sound policies and procedures in place, independent schools increase the likelihood of averting problems and will also have a framework in place for managing challenges when they (inevitably) arise.  And the mantra for this year:  to educate faculty, staff, the Board, and students so as to help prevent legal problems.

Focus On Compliance

Update Enrollment Agreements To Reflect The Current Environment.  There is still time to make sure that your school’s enrollment agreement describes more than the tuition payment process.  The enrollment agreement establishes the contractual foundation of your school’s relationship with its families and students.  It should, for example, describe the school’s expectations with regard to student and parental comportment, address use of student images, and restrict use of the school’s name (trademark issues and more).  Be sure to include an “over 18” provision if you enroll high school students.  We recommend a review (and overhaul, if necessary) of this essential contractual document to make sure it sufficiently protects the school, in case the school needs to enforce payment from, or behavioral expectations of, families.

Faculty Offer Letters.  Are you still using annual contracts for faculty, staff, and administrators?  It might be time to transition from an annual employment contract to one-time offer letters that emphasize the at-will nature of employment, describe duties and responsibilities with specificity, and describe what happens if employment is terminated (either for cause or voluntarily) during the school year.  Offer letters ease the administrative burden on the school (because they do not have to be provided annually), while also keeping pace with best employment practices.  Alternatively, now is the time to update your faculty contracts for best practices and legal compliance!

Compliance With Federal Laws?  There is an alphabet soup of federal laws that many independent schools mistakenly believe either do or do not apply to them!  If the school receives financial assistance from the federal government, then Section 504 of the Rehabilitation Act (Section 504) (requiring accommodation for students with disabilities) and Title IX of the Education Amendments of 1972 (Title IX) (prohibiting discrimination on the basis of sex) may apply, based on recent developments in the law.  The Family Educational Rights and Privacy Act (“FERPA”) may apply depending on the source of federal aid received by the school, and compliance with the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) may be triggered if the school’s health center is a qualified entity, or if it shares student medical information with other covered entities.  It is important to take stock of the federal, state, and municipal legal landscape and applicability of these laws to your independent school.  If you are not sure, obtain a formal legal opinion on these matters in 2014.

Assess Risk, Safety, And Security—Broadly Defined.  Violence on school campuses has focused schools on building and campus safety, which are important areas to analyze and address if your school has not yet conducted a safety audit.  But we focus on risks in other areas too, particularly with regard to proper licensing of school bus drivers and background checks for school applicants, employees (new and current), dorm parents, volunteers, and contractors.  Significant changes in federal and state laws have recently occurred, so it is advisable to have your school’s potential and current employee pool appropriately vetted, with student safety at the forefront.

Review Governance Documents And Policies.  Do the school’s bylaws permit creation of the emeritus trustee advisory committee that your school has just established? Have all members of the Board signed an acknowledgement indicating receipt and review of the school’s conflict-of-interest policy?  Does your Board require the signing of a confidentiality agreement each year?  Is it permitted to give notice of Board meetings via e-mail?  Both the Internal Revenue Service and many state Attorney General’s Offices issued reports on executive compensation at non-profit institutions in 2013, indicating that this will be an area of regulatory focus in the years ahead.  We recommend that schools conduct “benchmarking” analyses to establish that compensation paid to senior school administrators meets the IRS’s “reasonable” standard, in addition to satisfying the guidelines established by state agencies with non-profit oversight.  Both the IRS and state agencies also require tax-exempt, non-profit organizations to file annual tax returns and reports.  We recommend a review of the school’s governance policies to ensure that these annual requirements and “good governance” practices are in place in the event that state or federal regulators come calling (or to keep them at bay).

Review And Update The Employee/Faculty Handbook.  Please see our recent e-alert on this topic:  “2014 Is Here!  Time To Review And Update Your Employment Policies.”

Focus On Student Life

Review And Update The Student/Parent Handbook.  Is your student/parent handbook up-to-snuff with 2014 best practices and legal standards?  Does it address the common traps for unwary schools – like re-enrollment issues, anti-bullying, accommodations, acceptable use, and parental comportment?  Student/parent handbooks are the best opportunity a school has to convey its cultural norms, standards, and expectations to students and families.  We urge schools to include a proper disclaimer and acknowledgement form, and to tone down language that is overly promissory or that includes mandates around disciplinary procedures, thus hampering the school’s flexibility.

Mitigate Risks Associated With Student Travel.  Recent litigation and news reports have highlighted the myriad risks involved in taking students on trips of all kinds, from local excursions to international adventures.  We advise schools to create an ideal trip compliance package in order to guard against the risks inherent in such activities.  Such a compliance package should include permission and release forms, medical authorization forms, chaperone guidelines, and policies to include in student and employee handbooks.

International Students And Managing The Homestay Experience.  Independent schools are increasingly recruiting and admitting well-qualified students from around the globe.  There are several compliance issues that we recommend considering before welcoming international students on campus and into homestay living arrangements.  Boarding schools should make sure that in loco parentis arrangements are clear with international parents and that appropriate permission and release forms are in place that permit or define the school’s decision-making authority while the student lives on campus.  For homestay situations, schools should (i) ensure that their enrollment agreements account for the vagaries of international travel and behavioral expectations of students living in homestay situations; (ii) ensure that handbooks for both students and host families delineate roles, rules, and responsibilities, with procedures included should a particular student and family not be a good match; (iii) create procedures for vetting host families, including conducting background checks on all adult members of the household (even college-age siblings who may return home only for school vacations); and, (iv) if a school is working with an outside vendor to assist with any of these arrangements, ensure that an appropriate written contract is in place with the vendor that shifts as much risk as possible from the school to the vendor.

Focus On School Community

Be Vigilant About Updating Electronic Communications And Social Media Policies.  We often encounter acceptable-use policies that are quite narrow in scope and do not account for student and employee cyber behavior that may negatively impact the school experience, even if that activity occurs off campus and with personally owned (and not school-issued) devices.  While we do not advocate that schools act as “Big Brother,” monitoring all on-line student and employee activity, we do recommend that acceptable-use policies empower schools to discipline students and staff alike should any Internet-based activity, be it cyber-bullying, sexting, or inappropriate text or email exchanges, affect the school environment (in fact, some state bullying laws mandate this approach).  We recommend a review of existing policies to ensure that their scope and content keep pace with constantly evolving technology and behavioral norms as well as each school’s unique culture.

Educate The School Community About Shades of Grey And Blurred Lines.  The song “Blurred Lines” topped the pop charts last year with its racy video, but the song title also captures a hot topic facing school communities in 2014:  when functional and caring relationships within the school community become dysfunctional, dark, and harmful.  It may be obvious to most that intimate relations between teachers and students is a bad idea on many fronts – legally, morally, and ethically.  However, in the independent school world, where many interactions happen outside of the classroom, let alone in cyberspace, it is important to revisit the complex definitions of what is appropriate and in the best interests of students.  Of course, the concept of boundaries in the independent school world transcends the teacher/student context, and often includes teacher/parent, teacher/alumni, student/student, and any number of other pairings in which positive, close connections can quickly turn into an uncomfortable and negative experience that expands beyond appropriate boundaries.  Please click here for more information about our innovative, interactive boundary training for school communities.

Learn How To Manage Workplace Investigations.  Every now and then, in spite of all the education that independent schools provide through seminars, policies, and other communications, employees and/or students “do the wrong thing.”  How should a school respond if a student complains about being bullied or sexually abused, or a teacher accuses a co-worker of harassment?  Taking effective action in response to a student or employee complaint or allegation of wrongdoing is surely everyone’s goal.  We recommend that school administrators participate in training to learn how to plan an investigation, choose a qualified investigator, identify appropriate witnesses, document the investigation, address any wrongdoing, understand confidentiality and privacy issues, and take steps to avoid retaliation by a student (or family) or employee who may be disciplined as a result of the investigation.  Please click here for a detailed description of the Firm’s investigations workshop.

Educate The Community About How To Respond Effectively To Instances Of Bullying, Cyber-Bullying, And Sexting.  It is essential for independent school faculty, staff, administrators, and students to know what to do when confronted with students who bully, cyber-bully, or sext.  The entire school community needs to consider how important it is to abide by the law and school policies that restrict such behaviors.  Outside experts are often better able to convey to the school community the gravity attendant to these types of behaviors than internal school personnel, with whom students, faculty, and staff interact on a daily, collegial basis.  We recommend that the school community review applicable laws related to bullying, cyber-bullying, and sexting; review student handbook policies covering respect, honesty, diversity, acceptable use of technology, bullying, cyber-bullying, and discipline; discuss the consequences, both inside and outside the school environment, for engaging in bullying, cyber-bullying, and sexting; describe the school’s process for investigating these types of misconduct; and provide information about support and resources for students who are victims or perpetrators of the misconduct.  Please click here for a description of the various programs offered by the Firm.

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Please don’t hesitate to contact one of the attorneys in the Firm’s Education Group if you have questions about any of these issues.  We regularly provide training and other assistance to independent schools in all of these areas and would be thrilled to help.