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Advisory Articles New Hampshire
2019
Fall 2019


Special Education Year in Review: New Cases Affecting the First Circuit
By: Isabel B. Ekman
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Millions of Dollars in ACA Penalties Imposed on Schools
By: Christopher G. Stevenson
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Summer 2019




Supreme Court Signals Death Knell of Hallmark Standard in School Religion Cases
By: Connor P. Schratz
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New Hampshire Institutes Educator Code of Ethics and Code of Conduct
By: Meghan S. Glynn
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Interim Alternative Educational Placements for Dangerous Special Education Students
By: Gerald M. Zelin
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Understanding Tax Exempt Lease Purchasing: “What’s Really Going on Here?"
By: Greg Im, E. William Stockmeyer
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Winter 2019

Court Rules for School on Non-Attending Student: Good News or Cautionary Tale?
By: Eric R. Herlan
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Reasonable Accommodation Reminder: Use the Interactive Process
By: Laurel A.V. McClead
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New Hampshire Supreme Court Weighs in on Employee Free Speech Rights
By: Anna B. Cole
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Proposed Seismic Shift in Title IX Responsibilities for K-12 Nationwide
By: Penelope Wheeler-Abbott, Allen L. Kropp
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Fall 2018

The Janus Decision: the End of Agency and Fair Share Fees
By: Mark T. Broth, Michael L. Buescher
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New Hampshire Constitutional Amendment Grants Taxpayer Standing to Sue
By: Meghan S. Glynn
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First Circuit Expands FAPE Obligation to Age 22
By: Gerald M. Zelin, Isabel B. Ekman
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Summer 2018

Ninth Circuit Finds Prayer at School Board Meetings Unconstitutional
By: Kathleen E. Landis
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SB 342 Makes the Biggest Change to Default Budget Law in 14 Years
By: James A. O'Shaughnessy
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Reporting Obligations Under New Hampshire’s Safe School Zones Law Have Changed
By: Meghan S. Glynn
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Managing the Public's Use of District Social Media
By: Demetrio F. Aspiras, III, Elek A. Miller
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Spring 2018





Winter 2018

Recent Cases Provide Clear Instructions for Responding to Sexual Harassment Complaints
By: Laurel A.V. McClead
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Federal District Court Weighs In on Taking a Knee During National Anthem
By: Kathleen E. Landis
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Department of Education Rollback of Transgender Guidance and Your School’s Duty to Investigate
By: Meghan S. Glynn
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DOE Issues Landmark Findings Letter Related to FERPA and Online Educational Services
By: Elek A. Miller
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2017
Fall 2017


“I’m Talkin’ Here!” Dealing with Racist, Offensive, or Obscene Employee Speech
By: Connor P. Schratz, Daniel J. Rose
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Title IX and Sexual Harassment: Recent Updates from the Office for Civil Rights
By: Allen L. Kropp, Kimberly A. Pacelli
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Is This Seat Taken? Vacant Positions and Reasonable Accommodations
By: Laurel A. V. McClead
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Taking a Knee: Dealing with the Latest Form of Student Protest
By: Kathleen E. Landis, Elek A. Miller
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Key Legislative Developments in New Hampshire Education Law
By: Erin R. Feltes, Meghan S. Glynn
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Family and Medical Leave Act (FMLA) Tips for School Employers
By: Laurel A.V. McClead
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Spring 2017


The Federal Uniform Grant Guidance: There’s a New Procurement Sheriff in Town
By: Agnieszka A. (Pinette) Dixon, E. William Stockmeyer
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Blurred Lines: Student Privacy and the Use of Social Media in the Classroom
By: Meghan S. Glynn
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Understanding Employee Status and Revenue Streams During Medical Leaves
By: Mark T. Broth, Anna B. Cole
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Superior Court Dismisses Suit by Board Member Challenging Default Budget
By: James A. O'Shaughnessy
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Throwback Article: Raising Supplemental Funds with Nonprofit Corporations
By: John S. Kaminski
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Gone Phishing: Schools Increasingly Targets of Email Scams and Cyberattacks
By: Elek A. Miller
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New Hampshire Supreme Court Affirms Voters’ Ability to Amend Warrant Articles
By: James A. O'Shuaghnessy & Erin R. Feltes
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Fall 2016


No Such Thing as a Free Lunch: Recent Changes to School Meal Laws
By: Erin R. Feltes
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Supreme Court to Hear Two Important Special Education Cases
By: Isabel B. Ekman, Hannah E. King
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Summer 2016

The Outer Limits: The Latest on Due Process and Student Suspension
By: Bruce W. Smith
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I Agreed to What?! When Special Education Written Notices Become Binding
By: Isabel B. Ekman
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Race for White House Calls for a Refresher on Employee Political Speech
By: Jeane M. McCormick
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Spring 2016

New Hampshire Supreme Court Issues Controversial Decision on Teacher Non-Renewal
By: James O'Shaughnessy, Meghan Glynn
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Managing Medical Marijuana in Schools: What Schools Need to Know
By: Erin R. Feltes
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Who Walks the Dog? Legal Update on Service Animals in Schools
By: Jeanne M. Kincaid
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Recent Amendments to the McKinney-Vento Homeless Assistance Act
By: Gerald M. Zelin
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What Every Superintendent Should Know About Tax Exempt Bonds
By: E. William Stockmeyer
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IRS Issues Guidance on Cash in Lieu of Health Insurance and the ACA
By: Christopher G. Stevenson
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New Hampshire Supreme Court: All Employees Face Individual Liability for Workplace Harassment
By: Anna B. Cole, Meghan S. Glynn
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Fall 2015



Hold the Phone: Certain Action Required When Calling or Texting Parents or Students
By: Jeana M. McCormick
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Big Changes in Health Insurance for Schools that are "Small Employers"
By: Chris Stevenson
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Recent EEOC Decision Extends Title VII Protections to Sexual Orientation
By: Laurel A. McClead
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Federal Court in Oregon Weighs in on Student Discipline and Off-Campus Online Threats
By: Isabel B. Ekman
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Spring 2015

Trial Court Confirms Avenues for Teacher to Challenge Non-Renewal Limited by State Statue
By: James A. O'Shaughnessy
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Second Job for the Same Employer Results in Overtime Liability
By: Mark T. Broth & Anna B. Cole
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Federal Court and U.S. Department of Justice Take on School Policies Dealing with Service Animals
By: Hannah E. King
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House Bill 604 Combats Disability Discrimination in Access to Mixed Use School Buses
By: Gerald M. Zelin
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Fourth Circuit Issues Important Decision for Schools in Peer Sexual Harassment Case
By: Elek Miller
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Courts Address ADA Reasonable Accommodations and the Interactive Process
By: Daniel J. Rose
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Lions, and Tigers, and Bears - Oh, MY! Service Animals In Schools
By: Hannah E. King & Jeanne M. Kincaid
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New Hampshire Supreme Court Upholds Changes to State Retirement System
By: James A. O'Shaughnessy & Erin R. Feltes
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Rapper's Delight: Fifth Circuit Finds School Violated Student's First Amendment Rights
By: Amy K. Olfene
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2014
Fall 2014

Getting a Grip on the New Restraint and Seclusion Law
By: Eric R. Herlan
NH SchoolLaw Advisory Fall 2014 | Volume 26, No. 4 Getting a Grip on the New Restraint and Seclusion Law Most readers likely know ...
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Will Your School District's Health Plan Trigger a "Cadillac" Tax?
By: Christopher G. Stevenson
NH SchoolLaw Advisory Fall 2014 | Volume 26, No. 4 Will Your School District’s Health Plan Trigger a “Cadillac” Tax? Many sc...
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EEOC Issues Guidance Adopting Stance that Employers Must Offer Reasonable Accommodations to Pregnant Workers
By: Peter C. Felmly
NH SchoolLaw Advisory Fall 2014 EEOC Issues Guidance Adopting Stance that Employers Must Offer Reasonable Accommodations to Pregnant Work...
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Who's Left Standing after the New Hampshire Supreme Court Rejects Challenge to Tax-Credit Voucher Law?
By: James A. O'Shaughnessy
NH SchoolLaw Advisory Fall 2014 | Volume 26, No. 4 Who’s Left Standing after the New Hampshire Supreme Court Rejects Challenge To Tax-Credit...
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Title IX and Sexual Harassment: Recent Guidance from the Office for Civil Rights
By: Jeana M. McCormick
NH SchoolLaw Advisory Fall 2014 | Volume 26, No. 4 Title IX and Sexual Harassment: Recent Guidance from the Office for Civil Rights  ...
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The Blending of IDEA and ADA: Departments of Justice and Education Issue Guidance Addressing ADA Effective Communication Standards Implicating Special Education
By: Penelope Wheeler-Abbott and Jeanne M. Kincaid
NH SchoolLaw Advisory Fall 2014 | Volume 26, No. 4 The Blending of IDEA and ADA: Departments of Justice and Education Issue Guidance Address...
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Employers Have No Past Practice Obligation to Pay Step Increases Following the Expiration of a Collective Bargaining Agreement
By: Mark T. Broth and Laurel A.V. McClead
NH SchoolLaw Advisory Fall 2014 | Volume 26, No. 4 Nevertheless, many public employers, despite having no obligation to do so, have continued t...
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Two years after the amendment to RSA 193:12: Has your district made the adjustment?
By: James A. O'Shaughnessy
Some of you may recall that two years ago, in 2012, the New Hampshire Legislature changed the statute regarding a student’s legal residence for scho...
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Legislative updates
By: Erin R. Feltes
The 2013 legislative session proved to be busy, with over 290 new laws enacted as of July 29, 2014. Many of these new laws impact school districts, an...
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New State statutes governing disclosure of student records collide with FERPA and the juvenile justice laws
By: Gerald M. Zelin
The New Hampshire legislature recently considered several bills addressing the collection and disclosure of personally identifiable "data" on students...
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School district not liable for interference with employee's FMLA rights despite violations of FMLA notice provisions
By: Peter C. Felmly
In Bellone v. Southwick-Tolland Regional School District, the First Circuit Court of Appeals held that an employee’s rights under the Family Medical...
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Second Circuit weighs in on school volunteers
By: M. Thomas Trenholm
Many school units are increasingly turning to individuals in the community to help with the day-to-day work of schools. With tight school budgets, it ...
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U.S. Supreme Court issues ruling on public employee speech
By: Jeana M. McCormick
The Supreme Court of the United States recently issued an opinion in a case called Lane v. Franks1 addressing whether a public employee’s truthful t...
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Supreme Court issues landmark ruling in cellphone privacy case; but what effect on schools?
By: Elek A. Miller and Erin R. Feltes
The United States Supreme Court recently issued a decision with wide-ranging implications for police cellphone searches. In Riley v. California, the C...
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Student suspension and expulsion hearings: process and paperwork
By: Gerald M. Zelin
In June 2013, the New Hampshire Board of Education amended its rule governing hearings school administrators and local school boards conduct in studen...
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New Hampshire Supreme Court reveals process for decertifying bargaining units with fewer than ten employees
By: Mark T. Broth and James A. O'Shaughnessy
On April 18, 2014, the New Hampshire Supreme Court issued a decision in Appeal of Town of Brookline, effectively opening the door to decertification o...
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Access to virtual education: Barrier removal obligations under the ADA and Section 504
By: Jeanne M. Kincaid
We are all familiar with a school’s obligations to ensure that its programs, activities, and services are offered in a manner that ensures that stud...
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Final ACA regulations provide new flexibility for qualifying school districts
By: Christopher G. Stevenson
On February 12, 2014, the IRS released the final regulations governing the Affordable Care Act’s Employer Shared Responsibility Penalties—so-calle...
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Second Circuit requires inclusion for extended school year programming
By: Erin R. Feltes
The Second Circuit Court of Appeals in New York issued an important special education ruling in April that addresses public schools’ duty to provide...
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Equal treatment of the sexes in interscholastic athletics: Getting a handle on Title IX compliance before you are hit with an audit
By: Melissa A. Hewey
Articles in the press and on social media recently have highlighted a case in Michigan where the Office of Civil Rights ("OCR") required a public high...
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New Hampshire considers expansions to its restraint law
By: Eric R. Herlan
Readers are likely familiar with New Hampshire’s law on the use of restraint, which is found at RSA 126-U. This law, addressing most circumstances...
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Transgender youth in schools: The Maine Supreme Court weighs in on the issue of communal bathroom access
By: Melissa A. Hewey and David M. Kallin
In its recent decision in Doe v. Regional School Unit 26, 1the Maine Supreme Judicial held that, in some cases, Maine’s discrimination...
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U.S. Departments of Education and Justice want schools to rethink student discipline
By: Jeanne M. Kincaid
On January 8, 2014, the U.S. Departments of Education ("DOE") and Justice ("DOJ") issued a jointly-authored Dear Colleague Letter ("DCL") asking the n...
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New Hampshire Supreme Court clarifies scope of municipal immunity
By: Gerald M. Zelin
The New Hampshire Supreme Court recently interpreted the state’s municipal immunity statute in a manner favorable to public schools. In Dichiara...
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Risk assessments can be risky business
By: Eric R. Herlan
Many readers may be familiar with a very common scenario in New Hampshire schools, and it looks something like this: A student does or says somethin...
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Telling tales outside of school: Court upholds termination of employee for publishing book
By: Laurel A. McClead
Public schools routinely face a difficult truth: public employees have First Amendment rights. Because they are government actors, school districts ...
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When foreign student immigration status goes awry: A case study on "reinstatement"
By: Michael J. Murray
Many public high schools have established F-1 Visa Foreign Student Programs in the past several years. Schools benefit significantly by the presence...
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Fall 2013

Action needed for schools offering a health FSA, HRAs and/or paying for employees' health insurance coverage obtained elsewhere
By: Christopher G. Stevenson
Recent joint guidance issued by the IRS and the DOL 1 (the "Joint Guidance") will require action by any school district that offers a hea...
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First Circuit issues FMLA eligibility ruling
By: Jeana M. Petillo
The First Circuit Court of Appeals issued a decision this fall that addresses the Family Medical Leave Act ("FMLA") requirement that an employee must ...
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Students, iPads and CIPA compliance
By: Elek A. Miller
Schools continue to explore the ways that technology can support and enhance the delivery of educational services to students. One result of this ex...
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Recent hearing officer decisions on the "specific misrepresentation" exception to the two-year statute of limitations
By: Hannah E. King
Under both federal law and New Hampshire rules, there is a two-year statute of limitations on due process claims. 1 Generally, this m...
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New Hampshire Department of Safety adopts new regulations on transporting students in "mixed use" school buses
By: Erin R. Feltes
The New Hampshire Department of Safety recently amended and adopted a number of rules regarding student transportation. Among these were rules on tr...
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U.S. Supreme Court adopts narrow definition of "supervisor" under Title VII
By: Peter C. Felmly
Earlier this summer, the United States Supreme Court clarified the definition of "supervisor" for purposes of employer liability for workplace harassm...
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Employers beware: Changes to Form I-9 and document processing already in effect
By: Mona T. Movafaghi
On May 7, 2013, all employers became obligated to begin using the new two-page Form I-9. Employers who are not using the latest version of the f...
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Important Affordable Care Act update
By: Christopher G. Stevenson
The IRS recently announced that it will delay implementation of the Affordable Care Act’s ("ACA") health insurance mandate until 2015. ...
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U.S. Supreme Court establishes causation standard for Title VII retaliation claims
By: Elek A. Miller
The Supreme Court recently issued decisions in a number of important cases having significant implications for schools as employers. One of those ca...
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New Hampshire broadens availability of CHINS process for children
By: Erin R. Feltes
The 2013 New Hampshire legislative session proved to be busy, with over 250 new laws being enacted. Many of these new laws impact school districts a...
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The McKinney-Vento Act's controversial school choice requirements
By: Gerald M. Zelin
The McKinney-Vento Homeless Assistance Act, passed by Congress in 1987, serves a noble purpose. The Act aspires to give "each child of a homeless in...
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Independent contractor or employee: Navigating the murky waters of state worker classification rules
By: Elek A. Miller
School officials frequent have to make difficult hiring decisions. One of the most troublesome involves deciding whether an individual hired to perf...
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Schools face challenges administering medications
By: Erin R. Feltes
We often receive questions about how to accommodate students who need to take prescription medication during the school day. Although the laws regar...
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"You'll put your eye out!" Understanding and using the IDEA weapons exception
By: Eric R. Herlan
Anyone who works in schools understands that state and federal special education laws impose significant limitations on how student discipline is admi...
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New Hampshire Board of Education proposes new rules governing student suspensions and expulsions
By: Gerald M. Zelin
On April 19, 2013, New Hampshire’s Joint Legislative Committee on Administrative Rules (JLCAR) conditionally approved proposed amendments to the New...
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Title IX audits: What schools need to know to get ready for when OCR comes knocking
By: Melissa A. Hewey
Since its adoption in 1972, Title IX of the Education Amendments of 1972 ("Title IX") has been used aggressively by the Office of Civil Rights ("OCR")...
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An update on employee benefits
By: Robert P. Nadeau
Most school districts have a 403(b) plan and, as many of you know, the rules regarding 403(b) plans have changed significantly in recent years. This...
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New Hampshire Supreme Court reaffirms that employers are not obligated to pay post-expiration step increases
By: Mark T. Broth
We often are asked whether employers must grant step increases after a collective bargaining agreement ("CBA") has expired. In a recent decision iss...
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Employee leave and the intersection of the FMLA and the ADA
By: Peter C. Felmly
We are often contacted by superintendents or business managers with the following scenario: An employee is out on FMLA due to a serious health condi...
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Past practice: What it is, what it isn't, and how to change it
By: S. Campbell Badger
There is probably no more misused term in labor relations than "past practice." All too often, when a school system proposes to improve old ways of do...
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How can schools curb the abuse of intermittent family medical leave without interfering with employees' rights?
By: M. Thomas Trenholm
Although employees may be eligible to use family medical leave intermittently or on a reduced schedule in certain circumstances under federal and stat...
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Federal Office for Civil Rights issues landmark guidance on disabled students in sports
By: Amy K. Tchao
On January 25, 2013, the U.S. Department of Education Office for Civil Rights (“OCR”) issued guidance to public K-12 schools across the country on...
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Legislature relaxes rules concerning student transportation
By: Erin R. Feltes
Student transportation is often a tremendous expense for school districts. In addition to providing transportation to and from school, districts frequ...
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FERPA amended to ensure educational stability of students in foster care
By: Penelope Wheeler-Abbott
Dealing with the fiscal cliff crisis wasn’t the only business in front of Congress on New Year’s Eve. With much less fanfare than was accorded to ...
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Residential placement ordered to create "independent learner"
By: Eric R. Herlan
A Maine hearing officer has recently issued one of the more remarkable special education decisions in many years, which raises serious questions about...
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U.S. Supreme Court reins in Congress' authority to attach strings to federal funds
By: Gerald M. Zelin
The U.S. Supreme Court’s June 28, 2012 decision in National Federation of Independent Business v. Sibelius1 explored the limits of Congress’s auth...
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